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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NAKIA MCCLAIN,

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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.

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/

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On August 30, 2011, Plaintiff filed a motion for the appointment of an expert witness pursuant

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to Federal Rule of Evidence 706. Rule 706 provides federal courts with discretion to enter an order to

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show cause why an expert witness should not be appointed. Fed. R. Evid. 706(a). Thereafter, the court

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has discretion to either appoint an expert witness agreed upon by the parties or an expert witness based

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upon its own selection. Id.

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The Court finds appointment of an expert witness to be inappropriate in this case for two main

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reasons. First, the medical issues in this case are not so complex that appointment of an expert witness

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is necessary. A fact finder will be fully capable of understanding Plaintiff’s medical reports regarding

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his knee in determining whether Plaintiff suffered an injury as a result of Defendants’ alleged use of

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excessive force. Notably, this is not a complex Eighth Amendment inadequate medical care case that

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might require a fact finder to siphon through extensive, complex medical records.
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Second, Rule 706 requires that the appointed expert be reasonably compensated. Fed. R. Evid.

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706(b). Plaintiff, however, is proceeding in forma pauperis in this action. Therefore, Defendants will

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be the ones force to carry the burden of this cost, as the in forma pauperis statute does not authorize a

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district court to waive witness fees or pay expenses to witnesses. Tedder v. Odel, 890 F.2d 210, 211-12

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(9th Cir. 1989). This is something the Court will do only in exceptional cases. See Herrera v. Hall, No.

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1:08-cv-01882-LJO-SMS PC, 2011 U.S. Dist. LEXIS 68853, at *3-4 (E.D. Cal. June 27, 2011) (denying

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motion to appoint an expert witness where the case did not present particularly exceptional or complex

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legal issues). Plaintiff’s case is not exceptional.

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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.

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IT IS SO ORDERED.

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Dated: September 23, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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