GLADU v. ROSS et al

Filing 48

ORDER denying 35 Motion to appoint expert witness. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GLADU,
Plaintiff
v.
TROY ROSS, et al.,
Defendants

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2:15-cv-00274-DBH

ORDER ON PLAINTIFF’S MOTION TO APPOINT EXPERT WITNESS
In this action, Plaintiff Nicholas Gladu, an inmate at the Maine Correctional Center, alleges
that he was assaulted by a corrections officer while he was assigned to the Maine State Prison. Plaintiff
was previously granted permission to proceed in forma pauperis. (ECF No. 6.) The matter is before

the Court on Plaintiff’s Motion to Appoint Medical Expert. (ECF No. 35.) Through his motion,
Plaintiff requests an order permitting him, at Defendants’ expense, to consult a neurologist for the
evaluation of symptoms he allegedly suffers as a result of an injury to his hand, which injury
Plaintiff contends was caused by the assault.
Preliminarily, the Court does not have authority to appoint an expert witness under 28
U.S.C. § 1915 (the in forma pauperis statute). Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995);
Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991 (1988).
Perhaps recognizing this fact, Plaintiff relies upon Federal Rule of Evidence 706 in support of his
request.
Rule 706 authorizes the court to “order the parties to show cause why expert witnesses
should not be appointed” and to “appoint someone who consents to act” in that capacity. Fed. R.
Evid. 706(a). In a civil case, the court may require the parties to compensate the expert “in the

proportion and at the time that the court directs,” with the cost being charged like other costs at
the conclusion of the case. Fed. R. Evid. 706(c)(2). A court has “broad discretion” when
determining whether to appoint an expert witness. Stones v. McDonald, 7 F. Supp. 3d 422, 431
(D. Del. 2014)
Ordinarily, Rule 706 is employed by courts to appoint an independent, or neutral expert.
See, e.g., id. at 431 – 32; Griffin v. Hillsborough Cnty. Dep’t of Corr., No. 1:13-CV-00539-SM,
2015 WL 3970291, at *3 (D.N.H. June 30, 2015). Appointment of an expert is the exception rather
than the rule. Particularly in the context of in forma pauperis prisoner litigation, courts should
appoint an expert sparingly given the considerable expense that would otherwise be imposed on
governmental defendants due to the volume of such cases. Ezzard v. Ajibade, No. 3:14-cv-00141,
2015 WL 5838494, at *1 (S.D. Ga. Oct. 5, 2015); Thomas v. Antipov, No. 2:11-cv-01138, 2013
WL 6086765, at *3 (E.D. Cal. Nov. 19, 2013).
Several factors militate against the appointment of an expert in this case. First, Plaintiff
seeks a court-appointed expert to support his damages claim. From Plaintiff’s perspective,
therefore, the expert is not necessarily intended to serve as a neutral expert. In addition, insofar as
the expert would not address the liability issue, the expert is not essential to Plaintiff’s claim. 1
Furthermore, Plaintiff could present his damage case without an expert. While he could not testify
as to a medical diagnosis, he could describe his symptoms and the impact of the injury.
In short, the Court is not convinced that the appointment of an expert is warranted in this
case. The Court, therefore, denies Plaintiff’s Motion to Appoint Medical Expert. (ECF No. 35.)

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Even when the issue on which expert testimony is sought is dispositive of a claim, a court may deny a motion to
appoint an expert. Swan v. United States, 738 F. Supp. 2d 203, 206 (D. Mass. 2010).

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CERTIFICATE
Any objections to this Order shall be filed in accordance with Fed. R. Civ. P. 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 5th day of January, 2016.

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