Villa v. Cate et al

Filing 59

ORDER Granting In Part and Denying In Part 54 Plaintiff's Ex Parte Application: Denying Motion to Appoint Expert; Granting Motion for Extension of Time to File. The deadline for Plaintiff to serve a list of experts he expects to call at trial is continued to March 22, 2013. Signed by Magistrate Judge Jan M. Adler on 3/13/2013. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT VILLA,
Plaintiff,

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v.

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J.S. HILL, et al.,

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Defendants.

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Case No. 11CV2426-GPC(JMA)
ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S EX PARTE
APPLICATION [DOC. NO. 54]

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On February 13, 2013, Plaintiff Robert Villa, who is proceeding pro se

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and in forma pauperis (“IFP”) pursuant to 42 U.S.C. § 1983 and 28 U.S.C.

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§ 1915(a), filed an Ex Parte Application for an Order Extending Time to

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Retain an Expert to Call For Trial and Motion for Court Appointment of

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Expert. [Doc. No. 54.] The current deadline for Plaintiff to serve on all

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parties a list of experts he expects to call at trial is February 1, 2013.

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Plaintiff requests the deadline be continued because he is awaiting a

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response from Dennis M. Baumann, who is described as a Gang and

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Prison Procedures expert, as to whether Mr. Baumann can be retained by

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Plaintiff with respect to this case. Id.

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With good cause appearing, the Court hereby GRANTS Plaintiff’s ex
parte application with respect to the request for a continuance. The
11cv2426-GPC(JMA)

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deadline for Plaintiff to serve a list of experts he expects to call at trial is

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continued to March 22, 2013. The deadline for the exchange of

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supplemental expert designations is also continued and reset for April 19,

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2013.

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Plaintiff also requests the Court appoint an expert in this case.

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Federal Rules of Evidence 706(a) authorizes a court to appoint an expert

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on its own motion or on the motion of any party. When the Court appoints

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an expert, the cost is apportioned between the parties. Fed. R. Evid.

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706(c)(2).
Plaintiff contends the appointment of medical experts is necessary

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“so Plaintiff’s trial won’t be biased and one sided.” [Doc. No. 54, p. 1.] This,

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however, is not an adequate basis for appointment under Rule 706(a). The

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role of a court appointed expert is to serve as an independent neutral

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advisor in order to enlighten the Court and the jury on issues that are

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excessively complex or confusing. Plaintiff has not shown a need exists for

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such an expert, and the issues in this case are not sufficiently complex as

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to necessitate the appointment of a court expert.
Plaintiff’s intended use of the requested expert witness appears to be

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more consistent with the typical usage of witnesses testifying pursuant to

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Rules 702 - 705, which permit parties to proffer qualified expert testimony

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in support of their claims or defenses. While the Court is cognizant of the

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challenges an IFP litigant such as Plaintiff faces in retaining an expert

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witness, the IFP statute does not grant the Court the authority to appoint

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expert witnesses on behalf of a party. 28 U.S.C.A. § 1915; See also

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Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995). As a general matter,

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IFP litigants must hire their own experts. Plaintiff’s ex parte application,

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11cv2426-GPC(JMA)

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therefore, is DENIED with respect to his request for the Court to appoint an

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expert witness in this case.

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IT IS SO ORDERED.

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DATED: March 13, 2013

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Jan M. Adler
U.S. Magistrate Judge

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11cv2426-GPC(JMA)