McClain v. Gonzales et al

Filing 87

ORDER denying 79 MOTION/Request for appointment of expert witness signed by Magistrate Judge Jennifer L. Thurston on 9/23/2011. (Lundstrom, T)

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 NAKIA MCCLAIN, 13 14 15 16 Case No. 1:07-cv-00945 JLT (PC) Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR THE APPOINTMENT OF AN EXPERT WITNESS vs. L. GONZALES, et al., (Doc. 79) Defendants. 17 / 18 On August 30, 2011, Plaintiff filed a motion for the appointment of an expert witness pursuant 19 to Federal Rule of Evidence 706. Rule 706 provides federal courts with discretion to enter an order to 20 show cause why an expert witness should not be appointed. Fed. R. Evid. 706(a). Thereafter, the court 21 has discretion to either appoint an expert witness agreed upon by the parties or an expert witness based 22 upon its own selection. Id. 23 The Court finds appointment of an expert witness to be inappropriate in this case for two main 24 reasons. First, the medical issues in this case are not so complex that appointment of an expert witness 25 is necessary. A fact finder will be fully capable of understanding Plaintiff’s medical reports regarding 26 his knee in determining whether Plaintiff suffered an injury as a result of Defendants’ alleged use of 27 excessive force. Notably, this is not a complex Eighth Amendment inadequate medical care case that 28 might require a fact finder to siphon through extensive, complex medical records. 1 1 Second, Rule 706 requires that the appointed expert be reasonably compensated. Fed. R. Evid. 2 706(b). Plaintiff, however, is proceeding in forma pauperis in this action. Therefore, Defendants will 3 be the ones force to carry the burden of this cost, as the in forma pauperis statute does not authorize a 4 district court to waive witness fees or pay expenses to witnesses. Tedder v. Odel, 890 F.2d 210, 211-12 5 (9th Cir. 1989). This is something the Court will do only in exceptional cases. See Herrera v. Hall, No. 6 1:08-cv-01882-LJO-SMS PC, 2011 U.S. Dist. LEXIS 68853, at *3-4 (E.D. Cal. June 27, 2011) (denying 7 motion to appoint an expert witness where the case did not present particularly exceptional or complex 8 legal issues). Plaintiff’s case is not exceptional. 9 10 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. 11 12 IT IS SO ORDERED. 13 Dated: September 23, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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