Peterson v. Burris et al

Filing 47

ORDER denying 46 Motion to Appoint Expert. Signed by Magistrate Judge Elizabeth A. Stafford. (MarW)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
ANGEL PETERSON,
Plaintiff,
v.

Civil Action No.: 14-13000
Honorable Thomas L. Ludington
Magistrate Judge Elizabeth A. Stafford

ROCKY BURRIS, et al.,
Defendants.
__________________________________/
ORDER DENYING MOTION TO APPOINT EXPERT [R. 46]
Plaintiff Angel Peterson filed a complaint in this Court alleging
violations of her constitutional rights under 42 U.S.C. §1983. [R. 1]. The
District Court denied Defendants’ motion to dismiss Peterson’s Eighth
Amendment Claim, among others, finding that her claimed injury of high
blood pressure was sufficiently serious. [R. 42, PgID 212]. Discovery
ensued and Peterson now moves the Court for appointment of a
cardiology, cardiovascular and/or cardiopathy expert witness, arguing that
she cannot prove her case without this expert testimony. For the following
reasons, Peterson’s motion [R. 46] is denied.
Federal Rule of Evidence 706 governs the appointment of experts.
Although appointment of an expert is within the Court’s broad discretion,
(Dodson v. Wilkinson, 304 Fed. Appx. 434, 442 (6th Cir. 2008)), such

appointments are rare and are reserved to only those instances where
expert testimony is necessary to aid the Court’s fact-finding. Ledford v.
Sullivan, 105 F.3d 354, 358 (7th Cir. 1997) (“Generally, if scientific,
technical, or other specialized knowledge will assist the trier-of-fact to
understand the evidence or decide a fact in issue, a court will utilize expert
witnesses.”). Importantly, Rule 706 is not meant to as a vehicle for the
Court to assist the plaintiff in proving her case against the defendants.
Tangwell v. Robb, 2003 WL 23142190, *3-*4 (E.D.Mich. Dec. 23, 2003)
(“Indeed, the appointment of an expert witness for the plaintiff in this case
under Rule 706 would be tantamount to the Court assisting the plaintiff in
proving his case against the defendants.”). In the same vein, 28 U.S.C. §
1915, which governs cases brought in forma pauperis, “does not provide
for the appointment of an expert witness to aid an indigent litigant.”
Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995); Carter v. Mich. Dep’t of
Corr., No. 12-12621, 2013 U.S. Dist. LEXIS 133838, *20, 2013 WL
5291567 (E.D. Mich. Sept. 19, 2013).
Here, Peterson’s argues that she needs a cardiovascular expert in
order to prove that the alleged mistreatment she suffered caused her high
blood pressure. However, before causation for her injury is even relevant,
she would have to prove deliberate indifference. Peterson’s claim of
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deliberate indifference has not yet survived summary judgment and a
cardiovascular expert would not assist the Court in determining whether
she has submitted enough evidence to go forward on that issue. See
Berry v. City of Detroit, 25 F.3d 1342, 1354 (6th Cir. 1994) (“‘[D]eliberate
indifference’ is a legal term . . . [and it] is the responsibility of the court, not
testifying witnesses, to define legal terms.”). Moreover, although Peterson
requests that the Court appoint an expert at her own expense, granting her
request would be “tantamount to the Court assisting the plaintiff in proving
his case against the defendants.” Tangwell at *4. For these reasons,
Peterson’s motion to appoint an expert [R. 46] is DENIED.
Dated: September 28, 2015
Detroit, Michigan

s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge

NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
provides a period of fourteen (14) days from the date of receipt of a copy of
this order within which to file objections for consideration by the district
judge under 28 U.S. C. §636(b)(1).

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on September 28, 2015.
s/Marlena Williams
MARLENA WILLIAMS
Case Manager

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