Johnson v. Kellison

          ORDER

          Kristen L. Mix, United States Magistrate Judge

         This matter is before the Court on Plaintiff's [Motion for] Appointment of Expert Witness [#62]^[1] (the “Motion”). Defendants filed a Response [#68] in opposition to the Motion. Plaintiff, who proceeds as a pro se litigant, ^[2] did not file a Reply.

         In short, the incident underlying Plaintiff's claims occurred on October 20, 2017, while Plaintiff was a pretrial detainee at the Boulder County Jail. Plaintiff had been arrested the day before and while attempting to call his attorney on October 20, he asserts that Defendant Timothy Kellison used excessive force against him, ultimately placing him in a restraint chair for an extended period of time. Based on this incident, Plaintiff brings claims for violations of his First Amendment right to access the courts and Fourteenth Amendment rights to due process and to be free from excessive force.

         Here, Plaintiff requests the Court to appoint and pay for an expert in deep vein thrombosis as an expert witness in this matter. Motion [#62] at 1. Plaintiff states:

In this case Mr. Johnson feels very strongly that an expert in deep vein thrombosis will help the trier of fact with scientific issues related to the risk/causes of developing deep vein thrombosis in healthy individuals from prolonged sitting in excess of two hours, without stretching and by having the circulation slowed through the use of restraints & not releasing them to allow movement & stretch to encourage blood flow to the limbs & explain the pain this causes, explain the signs & symptoms of the development of deep vein thrombosis & how or why this is a life threatening illness & how it can cause a pulmonari embuli [sic], & whether Mr. Johnson was or wasn't placed at risk of developing deep vein thrombosis from defendants' actions. The risk of developing blood clots or deep vein thrombosis is part of Mr. Johnson's claim.

Id. at 1-2. Defendants respond:

While Plaintiff states that the risk of developing blood clots or deep vein thrombosis is part of his claim, the Complaint alleges only that he was put “at risk for blood clots.” The Complaint does not contain allegations that Plaintiff developed deep vein thrombosis or blood clots or suffered any complications of this type whatsoever because of [Defendants'] conduct. [Defendants] object to the appointment of an expert to testify regarding a medical condition that Plaintiff did not have. Moreover, [Defendants] will be filing for summary judgment. At the very least, it is premature to appoint a medical expert in this matter, and even if Plaintiff's claims survive summary judgment, the allegations are not so complex so as to require the appointment of a medical expert.

Response [#68] at 1-2 (internal citation omitted).

         Pursuant to Fed.R.Evid. 706(a):

On a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may request the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

         Although Fed.R.Evid. 706(a) “permits the district court to appoint a medical expert, courts rarely exercise this power.” Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). “Some courts treat this power as ‘the exception and not the rule,' limiting appointment of experts to the ‘truly extraordinary cases where the introduction of outside skills and expertise, not possessed by the judge, will hasten the just adjudication of a dispute without dislodging the delicate balance of the juristic role.'” Id. at 397-398.

         “While Rule 706 provides no standard for determining when to appoint an expert, the policy [of promoting accurate factfinding] underlying the provision supplies some guidance.” 29 Federal Practice and Procedure, Wright & Gold, § 6304, at 465 (1997). Courts have hesitated to find any affirmative obligation to exercise their Rule 706 power. See, e.g., Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996); Okla. Natural Gas Co. v. Mahan & Rowsey, Inc., 786 F.2d 1004, 1007 (10th Cir. 1986). In the absence of “complex scientific evidence or complex issues, ” the circuit courts have held that a district court does not abuse its discretion in declining to appoint an expert pursuant to Rule 706. McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991); see also Cestnik v. Fed. Bureau of Prisons, 84 Fed.Appx. 51, 53 (10th Cir. Dec.18, 2003) (“Given the relative lack of complexity of [the] case and [Plaintiff's] failure to submit any evidence that he was financially unable to retain his own physician, we cannot say that the refusal to appoint an expert constituted abuse of discretion.”).

         Further, as relevant here, “[w]hen appointing medical experts, the court is to allocate payment between the parties.” Rachel, 820 F.3d at 398 (citing Fed.R.Evid. 706(c)(2)). Reasonable compensation for an appointed expert is payable “by the parties in the proportion and at the time the court directs-and the compensation is then charged like other costs.” Fed.R.Evid. 706(c). Courts have held that, under Rule 706(c), a District Court can apportion costs of an expert witness, and that this authority extends to excusing indigent parties from paying their share of the costs. See, e.g., Ledford v. Sullivan, 105 F.3d 354, 360-61 (7th Cir. 1997).

         Here, Plaintiff “did not identify an independent expert and was unable to pay the district court's filing fee.” Rachel, 820 F.3d at 398; Motion [#62]; Order Granting Leave toProceed Pursuant to 28 U.S.C. § 1915 [#4]. Thus, Plaintiff proceeds in forma pauperis in this matter. Importantly, the Court has no existing funds to pay for the appointment of an expert witness in a civil case. See Patel v. United States, 399 Fed.Appx. 355, 359 (10th Cir. 2010) (citing 28 U.S.C. § 1915(c) for the proposition that “the in forma pauperis statute makes no provision for litigation expenses other than the reproduction of ...