Larson v. Bailiff et al

Filing 139

ORDER denying without Plaintiff's 132 Motion for Court-Appointed Experts. Court finds that a court-appointed independent expert witness is not necessary at this time. Signed by Magistrate Judge Jill L. Burkhardt on 9/21/2015. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SCHA BUCK LARSON,
Plaintiff,

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Case No.: 13cv2790 BAS (JLB)
ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION
FOR COURT-APPOINTED
EXPERTS

v.
RONALD BAILIFF et al.,
Defendants.

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[ECF No. 132]

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Presently before the Court is Plaintiff’s ex parte Motion for Court-Appointed

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Experts. (ECF No. 132.) For the reasons set forth below, Plaintiff’s Motion is DENIED

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without prejudice.

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I. INTRODUCTION

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Plaintiff, proceeding pro se and in forma pauperis, filed a civil rights complaint

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pursuant to 42 U.S.C. § 1983. Plaintiff’s Complaint was filed on November 22, 2013.

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(ECF No. 1.) The Complaint alleges that Defendants – San Diego police officers – violated

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his civil rights when he was arrested on November 19, 2011, in San Diego, CA. (Id. at 3-

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25.) Plaintiff alleges that Defendants Ruiz, Cummings, Widner, and Curran used excessive

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force during his arrest, tortured him by using excessive force, and conspired with each

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other to fabricate police reports and prevent officers from writing police reports to cover

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up their use of excessive force and torture. (Id.) The Complaint further alleges that

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Defendant Bailiff tacitly authorized or was indifferent to the officers’ use of excessive force
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and torture. (Id. at 18.) On August 25, 2015, Plaintiff filed the instant Motion. (ECF No.

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132.)

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II. LEGAL STANDARD

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The Court has discretion to appoint an expert pursuant to Rule 706(a) of the Federal

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Rule of Evidence. In relevant part, Rule 706 states that “[o]n a party’s motion or on its

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own, the court may order the parties to show cause why expert witnesses should not be

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appointed . . . .” Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term

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Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Court appointment of an expert may

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be appropriate if evidence to be presented at trial is complex. See Levi v. Director of

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Corrections, 2006 WL 845733, at *1 (E.D. Cal. March 31, 2006) (citing Ledford v.

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Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). Pursuant to Rule 702, “a witness who is

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qualified as an expert by knowledge, skill, experience, training or education may testify in

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the form of an opinion or otherwise if: (1) the expert’s scientific, technical, or other

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specialized knowledge will help the trier of fact to understand the evidence or to determine

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a fact in issue . . . .” Fed. R. Evid. 702. Rule 706 does not contemplate court appointment

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. . . of an expert witness as an advocate for Plaintiff. Faletogo v. Moya, 2013 WL 524037,

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*2 (S.D. Cal. 2013).

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The court also has the discretion to apportion costs, including the apportionment of

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costs to one side. Fed. R. Evid. 706; see also Ford ex rel. Ford v. Long Beach Unified

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School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002). However, where the cost would likely

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be apportioned to the government, the court should exercise caution. Brooks v. Tate, 2013

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WL 4049043, at *1 (E.D. Cal. Aug. 7, 2013). Rule 706 is not a means to avoid the in forma

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pauperis statute. 28 U.S.C § 1915. “The in forma pauperis statute does not authorize the

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court to waive witness fees or expenses paid to those witnesses.” Manriquez v. Huchins,

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2012 WL 5880431, at *12 (E.D. Cal. 2012) (citing Dixon v. Ylst, 990 F.2d 478, 480 (9th

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Cir.1993)).

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//

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//
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III. DISCUSSION AND ORDER

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Here, Plaintiff seeks a court order appointing experts under Rule 706 of the Federal

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Rules of Evidence “to testify/depose respective experts’ opinions relevant to Plaintiff’s

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serious physical/mental injuries . . . .” (ECF No. 132 at 2.) Plaintiff seeks court-appointed

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“experts to present evidence of the quality of [his] serious physical/psych (sic) injuries”

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and because Plaintiff cannot afford to retain experts on his own. (Id. at 4.)

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Essentially, Plaintiff seeks the assistance of expert witnesses to testify on his behalf.

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However, Rule 706 does not contemplate court appointment of an expert witness to

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advocate for a particular party at trial. See, e.g., Manriquez v. Huchins, 2012 WL 5880431,

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*14 (E.D. Cal. 2012); Brooks v. Tate, 2013 WL 4049043, *1 (E.D. Cal. Aug. 7, 2013)

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(avoiding bias or otherwise assisting one party is not the purpose of Rule 706); Gorrell v.

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Sneath, 2013 WL 3357646, * 1 (E.D. Cal. Jul. 3, 2013) (purpose of court-appointed expert

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is to assist the trier of fact, not to serve as an advocate for a particular party).

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While the Court is cognizant of the challenges an in forma pauperis litigant, such as

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Plaintiff, faces in retaining an expert witness, the in forma pauperis statute does not grant

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the Court the authority to appoint expert witnesses on behalf of a party. 28 U.S.C § 1915;

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see also Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995).

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Plaintiff’s Motion focuses primarily on his need to establish and describe the

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physical and mental injuries he suffered as a result of Defendants’ alleged use of excessive

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force. (ECF No. 132 at 3-5.) However, Plaintiff fails to explain why expert testimony

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from medical personnel is necessary to convey this information to the trier of fact. Plaintiff

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has first-hand knowledge of his injuries, is well-situated to testify to the extent of his

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injuries, and can further support his testimony with documentary evidence set forth in his

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medical records.1

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Authenticating medical records does not require expert witness testimony. See, e.g., Fed. R. Evid.
803(6)(D) and 902(11).
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Finally, the Court finds that Plaintiff’s excessive force claims are not so complex as

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to require the testimony of expert witnesses to assist the trier of fact. Claims of excessive

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force are analyzed under the Fourth Amendment prohibition against unreasonable seizures.

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See Graham v. Connor, 490 U.S. 386, 394 (1989) (“Where, as here, the excessive force

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claim arises in the context of an arrest or investigatory stop of a free citizen, it is most

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properly characterized as one invoking the protections of the Fourth Amendment . . . .”);

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White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). To state an excessive force

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claim, a plaintiff must allege facts showing that the officer’s conduct was “objectively

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unreasonable in light of the facts and circumstances confronting them.” Graham, 490 U.S.

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at 397. In determining whether an officer’s conduct is objectively unreasonable, the Court

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must “balance the gravity of the intrusion on the individual against the government’s need

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for that intrusion to determine whether it was constitutionally reasonable.” Miller v. Clark

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Cnty., 340 F.3d 959, 964 (9th Cir. 2003). To determine the unreasonableness of a seizure,

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requires a careful consideration of the facts and circumstances that confronted the arresting

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officer. Id.

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These areas of inquiry are well within the purview of the trier of fact; no scientific,

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technical, or specialized knowledge is necessary for the trier of fact to understand the

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evidence or determine a fact at issue. Thus, the Court finds that a court-appointed

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independent expert witness is not necessary at this time.2 Accordingly, Plaintiff’s request

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is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: September 21, 2015

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The court may still appoint an expert witness if trial issues of sufficient complexity arise at a later stage
of the litigation. See Carroll v. Yates, 2012 WL 1868036, at *1 (E.D. Cal. May 22, 2012) (denying motion
for court-appointed expert as premature).
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