Cottrell v. Ogbuehi et al

Filing 59

ORDER DENYING, WITHOUT PREJUDICE, Plaintiff's 58 Motion to Appoint a Independent Expert Witness; ORDER GRANTING Thirty (30) Day Extension to Time to File an Opposition to Defendants' Motion for Summary Judgment, signed by Magistrate Judge Stanley A. Boone on 12/18/2015. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DALE L. COTTRELL,

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Plaintiff,

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v.

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FELIX IGBINOSA, et al.,

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Defendants.

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Case No.: 1:13-cv-01530-LJO-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR APPOINTMENT OF
INDEPENDENT EXPERT WITNESS
[ECF No. 58]

Plaintiff Dale L. Cottrell is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On December 17, 2015, Plaintiff filed a motion for appointment of an independent expert to
refute Defendants’ pending motion for summary judgment.

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An expert witness may testify to help the trier of fact understand the evidence or determine a

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fact at issue. Fed. R. Evid. 702. Under Rule 706(a) of the Federal Rules of Evidence, the Court has

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discretion to appoint a neutral expert on its own motion or on the motion of a party. Fed. R. Evid.

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706(a); Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999).

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Rule 706 does not contemplate court appointment and compensation of an expert witness as an

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advocate for Plaintiff. See Gamez v. Gonzalez, No. 08cv1113 MJL (PCL), 2010 WL 2228427, at *1

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(E.D. Cal. June 3, 2010). Indeed, appointment of an independent expert under “Rule 706 should be

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reserved for exceptional cases in which the ordinary adversary process does not suffice.” In re JoinT
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E. & S. Dists. Asbestos Litig., 830 F.Supp. 686, 693 (E.D.N.Y. 1993) (allowing appointment of

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independent expert in mass tort case).

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The appointment of an independent expert is to assist the trier of fact, not a particular litigant.

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Thus, the Court may not appoint an expert witness to advocate for Plaintiff at trial. Defendants have

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filed a motion for summary judgment supported with declarations from Defendants and medical expert

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testimony by non-Defendant, Dr. Barnett. Plaintiff submits that appointment of an independent

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cardiologist expert will assist the Court in understanding why it should not grant summary judgment

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upon reliance of the declarations submitted by Defendants. At this juncture, without a thorough

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review of Defendants’ motion for summary judgment, the Court cannot determine whether

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appointment of an independent medical expert is necessary to resolve Defendants’ motion.

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Accordingly, Plaintiff’s motion for a appointment of an independent expert witness shall be

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DENIED, without prejudice, to later renewal by Plaintiff and/or sua sponte renewal by the Court if

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deemed necessary to resolve Defendants’ motion for summary judgment. In the interest of justice,

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Plaintiff is granted an extension of thirty (30) days to file an opposition to Defendants’ motion for

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summary judgment. Plaintiff is advised that the failure to file a timely opposition will be deemed a

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waiver of any opposition to the granting of the motion and may result in the imposition of sanctions.

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Local Rule 230(l).

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IT IS SO ORDERED.

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Dated:

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December 18, 2015
UNITED STATES MAGISTRATE JUDGE

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