Hicks v. Arya

Filing 67

ORDER signed by Magistrate Judge Kendall J. Newman on 7/27/18 DENYING 65 motion for a court appointed expert witness. (Plummer, M)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

MICHAEL J. HICKS,

11
12
13

No. 2:16-cv-2465 TLN KJN P

Plaintiff,
v.

ORDER

AFSHIN ARYA, et al.,

14

Defendants.

15
16

Plaintiff is a state prisoner, proceeding pro se, with a civil rights action pursuant to 42

17

U.S.C. § 1983. Pending before the court is plaintiff’s motion for the court to appoint an expert

18

witness. (ECF No. 65.) Plaintiff requests that the court appoint a handwriting expert to examine

19

medical records to determine whether defendant Bodenheimer forged the signature of Dr. Sahota.

20

In support of this request, plaintiff has provided medical records containing allegedly forged

21

signatures.

22

Rule 706 of the Federal Rules of Evidence authorizes the court to appoint an independent

23

expert. Such an appointment is within the discretion of the trial judge and may be appropriate

24

when “scientific, technical, or other specialized knowledge will assist the trier of fact to

25

understand the evidence or decide a fact in issue.” See Torbert v. Gore, 2016 WL 3460262, at *2

26

(S.D. Cal. June 23, 2016) (citation omitted); see also Walker v. Am. Home Shield Long Term

27

Disability Plan, 180 F.3d 1065, 1070–71 (9th Cir. 1999) (finding that district court did not abuse

28

its discretion by sua sponte appointing a medical expert to help the court evaluate confusing and
1

1

contradictory evidence regarding fibromyalgia, which the court described as “an elusive disease

2

of unknown cause”); Ledford v. Sullivan, 105 F.3d 354, 358–60 (7th Cir. 1997) (upholding

3

district court’s denial of prisoner’s motion to appoint an expert in section 1983 action, where the

4

expert planned to testify regarding whether prison officials showed deliberate indifference to the

5

prisoner's serious medical needs).

6

An expert appointed pursuant to Rule 706 does not serve as an advocate for either party

7

and each party retains the ability to call its own experts. Fed. R. Evid. 706(e); Faletogo v. Moya,

8

2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013) (Rule 706 “does not contemplate court

9

appointment and compensation of an expert witness as an advocate for one of the parties.”);

10

Walker v. Woodford, 2008 WL 793413, at *1 (S.D. Cal. Mar. 24, 2008) (“[r]easonably construed,

11

[Rule 706] does not contemplate the appointment of, and compensation for, an expert to aid one

12

of the parties.”) (citation omitted).

13
14
15

The undersigned finds that appointment of a handwriting expert to determine whether
defendant Bodenheimer forged the signature of Dr. Sahota is not warranted.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for a court-appointed

16

expert witness (ECF No. 65) is denied.

17

Dated: July 27, 2018

18
19
20
21

hick2465.31c

22
23
24
25
26
27
28
2