Ford v. Wildey et al

Filing 154

ORDER Denying 153 Plaintiff's Motion for Court to Order Independent Wrist Examination, signed by Magistrate Judge Stanley A. Boone on 12/28/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENNY FORD,

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Plaintiff,
v.
G. WILDEY, et al.,
Defendants.

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Case No.: 1:10-cv-01024-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR COURT TO ORDER INDEPENDENT
WRIST EXAMINATION
[ECF No. 153]

Plaintiff Benny Ford is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On December 23, 2015, Plaintiff filed a motion for the Court to order an independent wrist
examination. (ECF No. 153.)
Pursuant to Rule 702 of the Federal Rules of Evidence, “[i]f scientific, technical, or other

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specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in

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issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may

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testify thereto in the form of an opinion or otherwise.” Fed. R. Evid. 702. Under Rule 706, the Court

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may on its own motion, or on the motion of a party appoint an expert witness. Fed. R. Evid. 706 (a).

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While the Court has the discretion to appoint an expert and to apportion costs, including the

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appointment of costs to one side, Fed. R. Evid. 706; Ford ex rel Ford v. Long Beach Unified School
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Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker v. American Home Shield Long Term Disability

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Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), where the cost would likely be apportioned to the

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government, the Court should exercise caution.
In addition, Rule 706 does not provide an avenue to avoid the in forma pauperis statute and its

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prohibition against using public funds to pay for the expenses of witnesses, Manriguez v. Huchins, No.

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1:09-cv-00456-LJO-BAM (PC), 2012 WL 5880431, *12 (E.D. Cal. 2012), nor does Rule 706

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contemplate court appointment and compensation of an expert witness as an advocate for Plaintiff,

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Faletogo v. Moya, No. 12cv631 GPC (WMC), 2013 WL 524037, *2 (S.D. Cal. 2013).
Here, Plaintiff seeks the appointment of an expert witness to examine his wrists and hands and

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provide professional opinion on how Plaintiff could have received the injuries to counteract the

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testimony provided by Defendants’ expert. Avoiding bias or otherwise assisting one party is not the

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purpose of Rule 706, and the Court does not find that expert testimony is necessary for Plaintiff to

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present his case to the jury. Accordingly, Plaintiff’s motion for appointment of an expert witness is

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DENIED.

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IT IS SO ORDERED.

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Dated:

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December 28, 2015
UNITED STATES MAGISTRATE JUDGE

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