Johnson v. Rodriguez

Filing 47

ORDER DENYING without prejudice, Plaintiff's 44 Motion to Appoint Expert signed by Magistrate Judge Stanley A. Boone on 06/12/15. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONARD JOHNSON,

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Plaintiff,

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v.
HUMBERTO RODRIGUEZ,
Defendant.

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Case No.: 1:12-cv-00820-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR COURT
APPOINTED EXPERT WITNESS
[ECF No. 44]

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Plaintiff Leonard Johnson is proceeding in this civil rights action pursuant to 42 U.S.C. § 1983.

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Pursuant to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of the United States magistrate

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judge. Local Rule 302.

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On June 11, 2015, Plaintiff filed a motion for the appointment of an expert witness. (ECF No.

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44.) . The Court heard argument at the Pretrial Conference on June 11, 2015 and gave its tentative

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ruling from the bench after giving the parties an opportunity to be heard.

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Plaintiff moves, pursuant to Rule 706 of the Federal Rules of Evidence, for appointment of a

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medical expert, during the summary judgment motion phase of this case. Pursuant to Rule 702 of the

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Federal Rules of Evidence, “[i]f scientific, technical, or other specialized knowledge will assist the

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trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert

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by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or

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otherwise.” Fed. R. Evid. 702. Under Rule 706, the Court may on its own motion, or on the motion of

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a party appoint an expert witness. Fed. R. Evid. 706 (a).
Plaintiff’s motion must be denied without prejudice. In this instance, the Court finds that

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appointment of an expert is not necessary or appropriate at this time. First, Plaintiff’s request is

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untimely as discovery closed on June 2, 2014, and Plaintiff failed to provide timely disclosure of such

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expert pursuant to Rule 26(a)(2)(D). In addition, Plaintiff based upon the proffer given at the hearing

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as to his intended use of the expert, to show the damages portion of the excessive force claim, Plaintiff

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has failed to demonstrate the need for an expert witness to aid the Court’s understanding of the

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excessive force claim and resulting damage. Hence, there is no basis at this time for appointment

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under Rule 706. To the extent Plaintiff finds an expert witness for use at trial, Plaintiff may renew the

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instant motion consistent with the rules of law and providing the necessary disclosure to the

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defendant.. Accordingly, Plaintiff’s motion for the appointment of an expert witness pursuant to Fed.

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R. Evid. 706 is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

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June 12, 2015
UNITED STATES MAGISTRATE JUDGE

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