Annabel v. Frost et al
OPINION and ORDER DENYING PLAINTIFF'S 188 MOTION for Appointment of an Expert Witness - Signed by Magistrate Judge R. Steven Whalen. (CCie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
District Judge Arthur J. Tarnow
Magistrate Judge R. Steven Whalen
JACK FROST, ET AL.,
OPINION AND ORDER
Before the Court is Plaintiff Robert Annabel’s Renewed Motion for Appointment
of Expert Witness [Doc. #188]. He seeks the appointment of a “forensic document
examiner,” at Defendant Eaton’s expense, to ascertain if Eaton forged a copy of
On February 16, 2017, Plaintiff filed a previous motion requesting discovery and
the appointment of an expert, also alleging that Eaton forged grievance documents [Doc.
#84]. On September 30, 2017, the Court granted in part Plaintiff’s motion to compel
discovery of misconduct reports and parole documents, but denied the motion “in all
other respects,” including the Plaintiff’s request for appointment of an expert [Doc.
#134]. On November 16, 2017, Plaintiff filed another motion for appointment of a
handwriting expert [Doc. #148], but following the appointment of pro bono counsel,
withdrew that motion [Doc. #179].
Plaintiff’s motion will be denied for two reasons. First, it is, in effect, a motion for
reconsideration of this Court’s September 30, 2017 order denying the appointment of an
expert. Motions for reconsideration are governed by E.D. Mich. Local Rule 7.1(g)(3),
(3) Grounds. Generally, and without restricting the court’s discretion, the
court will not grant motions for rehearing or reconsideration that merely
present the same issues ruled upon by the court, either expressly or by
reasonable implication. The movant must not only demonstrate a palpable
defect by which the court and the parties have been misled but also show
that correcting the defect will result in a different disposition of the case.”
A motion for reconsideration “must be filed within 14 days after entry of
the...order.” E.D. Mich. L.R. 7.1(h)(1). Here, the Plaintiff filed his motion well outside
the 14-day period. In addition, Plaintiff has offered nothing to show a “palpable defect”
by which the Court was misled when it denied the original motion, but rather presents the
same issues and arguments that formed the basis of the original motion.
Secondly, even if the present motion were considered de novo, Plaintiff has not
shown entitlement to the extraordinary remedy of a court-appointed expert, paid for by a
defendant. In Dorise v. Cummings, 2009 WL 3462621, at *1 (E.D. Mich. Oct. 23, 2009),
the Court explained as follows:
“As this Court has recognized, the use of court-appointed experts is
relatively infrequent and most judges ‘view the appointment of an expert as
an extraordinary activity that is appropriate only in rare instances.’
Tangwall v. Robb, 2003 WL 23142190 (E.D.Mich.2003), quoting, Joe S.
Cecil & Thomas E. Willging, Court–Appointed Experts: Defining the Role
of Experts Appointed Under Federal Rule of Evidence 706, 4–5 (Fed. Jud.
Center 1993). Indeed, the Court should appoint an expert only in the most
‘compelling’ of circumstances. Id., citing, Applegate v. Dobrovir, Oakes &
Gephardt, 628 F.Supp. 378, 383 (D.D.C.1985).”
See also U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1059 (8th Cir. 1984), where the
Court “strongly emphasize[d] that this discretionary power is to be exercised only under
compelling circumstances.” Here, Plaintiff argues that if a forensic examiner were to find
that Defendant Eaton forged a document (and Plaintiff has shown no substantial predicate
basis to support a theory of forgery), that fact could be used for impeachment. Yet
Plaintiff also claims that he “has an overwhelming amount of direct evidence of
defendant[‘]s dishonesty,” Motion, at 4, Pg. ID 2141, which suggests that he already has
the ammunition for impeachment.
For these reasons, Plaintiff’s motion for appointment of an expert witness [Doc.
#188] is DENIED.
IT IS SO ORDERED.
s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: October 9, 2018
CERTIFICATE OF SERVICE
I hereby certify on October 9, 2018, I electronically filed the foregoing paper with
the Clerk of the Court sending notification of such filing to all counsel registered
electronically. I hereby certify that a copy of this paper was mailed to non-registered ECF
participants on October 9, 2018.
Case Manager to
Magistrate Judge R. Steven Whalen
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?