McClain v. Gonzales et al
ORDER denying 79 MOTION/Request for appointment of expert witness signed by Magistrate Judge Jennifer L. Thurston on 9/23/2011. (Lundstrom, T)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Case No. 1:07-cv-00945 JLT (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR THE APPOINTMENT OF AN EXPERT
L. GONZALES, et al.,
On August 30, 2011, Plaintiff filed a motion for the appointment of an expert witness pursuant
to Federal Rule of Evidence 706. Rule 706 provides federal courts with discretion to enter an order to
show cause why an expert witness should not be appointed. Fed. R. Evid. 706(a). Thereafter, the court
has discretion to either appoint an expert witness agreed upon by the parties or an expert witness based
upon its own selection. Id.
The Court finds appointment of an expert witness to be inappropriate in this case for two main
reasons. First, the medical issues in this case are not so complex that appointment of an expert witness
is necessary. A fact finder will be fully capable of understanding Plaintiff’s medical reports regarding
his knee in determining whether Plaintiff suffered an injury as a result of Defendants’ alleged use of
excessive force. Notably, this is not a complex Eighth Amendment inadequate medical care case that
might require a fact finder to siphon through extensive, complex medical records.
Second, Rule 706 requires that the appointed expert be reasonably compensated. Fed. R. Evid.
706(b). Plaintiff, however, is proceeding in forma pauperis in this action. Therefore, Defendants will
be the ones force to carry the burden of this cost, as the in forma pauperis statute does not authorize a
district court to waive witness fees or pay expenses to witnesses. Tedder v. Odel, 890 F.2d 210, 211-12
(9th Cir. 1989). This is something the Court will do only in exceptional cases. See Herrera v. Hall, No.
1:08-cv-01882-LJO-SMS PC, 2011 U.S. Dist. LEXIS 68853, at *3-4 (E.D. Cal. June 27, 2011) (denying
motion to appoint an expert witness where the case did not present particularly exceptional or complex
legal issues). Plaintiff’s case is not exceptional.
Accordingly, for all the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s
August 30, 2011 motion for the appointment of an expert witness (Doc. 79) is DENIED.
IT IS SO ORDERED.
Dated: September 23, 2011
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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