Baker v. Macomber et al

Filing 158

ORDER signed by District Judge Troy L. Nunley on 3/16/2020 DENYING plaintiff's requests for a Court-appointed neutral medical expert witness without prejudice. (Coll, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY RAY BAKER,

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Plaintiff,

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v.

No. 2:15-cv-00248-TLN-AC

ORDER

J. MACOMBER, et al.,
Defendants.

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This case is set for trial on April 27, 2020. The Court issued an Amended Final Pretrial

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Order on June 11, 2019. (ECF No. 134.) Presently before the Court is Plaintiff’s Request for a

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Court-appointed neutral expert medical witness. While Plaintiff does not seek such relief through

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any substantive motion currently pending before this Court, the Court notes Plaintiff asserts a

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request for the appointment of a neutral medical expert witness in his Pretrial Statement, and

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Plaintiff’s request is also noted in the Amended Pretrial Order. (See ECF No. 121 at 8 (“Plaintiff

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is Requesting A Court Appointed Neutral Expert Medical Witness.”); ECF No. 134 at 4 (same).)

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The Court further notes Plaintiff previously requested a neutral medical expert witness on

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February 24, 2016 (ECF No. 27 at 2), and Plaintiff’s motion was denied (ECF No. 34 at 4).

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Under Federal Rule of Evidence 706(a), the Court has the discretion to appoint an expert

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witness sua sponte at any time. Walker v. American Home Shield Long Term Disability Plan,

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180 F.3d 1065, 1071 (9th Cir. 1999). However, the purpose of a court-appointed expert under
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Rule 706 is to assist the trier of fact, not to serve as an advocate. See Pedraza v. Jones, 71 F.3d

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194, 196 (5th Cir. 1995) (“[t]he plain language of section 1915 does not provide for the

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appointment of expert witnesses to aid an indigent litigant.”); accord, Boring v. Kozakiewicz, 833

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F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991 (1988). Importantly, these principals are

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not altered when a district court authorizes a party to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993); see also Tedder v. Odel, 890

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F.2d 210, 211–12 (9th Cir. 1989) (an indigent prisoner must bear the costs of litigation, including

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payment of fees or expenses for witnesses). Accordingly, an expert may be appointed to assist

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the trier of fact only where it “will promote accurate factfinding.” Gorton v. Todd, 793 F. Supp.

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2d 1171, 1179 (E.D. Cal. 2011).
Here, Plaintiff has not filed a motion requesting the Court appoint a neutral medical expert

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witness; he has merely requested a Court-appointed expert in his pretrial statement. (See ECF

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No. 121 at 8; ECF No. 134 at 4.) Plaintiff does not specify the anticipated scope of testimony of

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his requested expert witness. Nor does Plaintiff otherwise provide any argument in support of his

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request. In sum, Plaintiff fails to demonstrate that the trier of fact needs evidence from a Court-

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appointed expert.

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For these reasons, the Court finds Plaintiff has not established that the circumstances of

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this case warrant the appointment of a neutral medical expert witness. Accordingly, IT IS

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HEREBY ORDERED that Plaintiff’s requests for a Court-appointed neutral medical expert

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witness (ECF No. 121 at 8; ECF No. 134 at 4) are DENIED, without prejudice.

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IT IS SO ORDERED.
DATED: March 16, 2020

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Troy L. Nunley
United States District Judge

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