United States District Court, D. Nevada
ORDER (DOCKET NOS. 137, 141)
J. KOPPE, UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's motion for
court-appointed experts. Docket No. 137. The Court has
considered Plaintiff's motion, Defendants' response,
and Plaintiff's reply. Docket Nos. 137, 142, 146. Also
pending before the Court is Plaintiff's motion to strike
non-retained experts of Defendants. Docket No. 141. The Court
has considered Plaintiff's motion, Defendants'
response, and Plaintiff's reply. Docket Nos. 141, 143,
137. The motions are properly decided without a hearing.
See Local Rule 78-1.
November 7, 2011, the Court ordered that Plaintiff may
proceed on his claims of excessive use of force and assault
and battery related to his arrest on August 26, 2009. Docket
No. 9 at 10. On November 27, 2018, Plaintiff filed an amended
complaint alleging excessive use of force, assault and
battery, intentional infliction of emotional distress,
negligence, and a civil rights violation under § 1983.
Docket No. 125 at 6-12. Plaintiff previously brought a motion
to appoint expert on July 10, 2018, which the Court denied
without prejudice on August 2, 2018. Docket Nos. 108, 117. On
April 17, 2019, Defendants disclosed their initial expert
witnesses and reports. See Docket No. 141-1.
Defendants retained a medical expert to review limited
medical records, photos of wall damage that occurred during
Plaintiff's arrest, and transcripts from Plaintiff's
trial in state court. Id. at 20-23. Defendants'
disclosure also included Las Vegas Metropolitan Police
Department (“LVMPD”) officers and/or 30(b)(6)
witnesses, specifically naming officers not named as
Defendants. Id. at 2-3. On April 15, 2019, Plaintiff
disclosed his treating physicians as non-retained treatment
provider experts. Docket No. 141-2 at 7-11.
Motion for Court-Appointed Experts
in forma pauperis statute, 28 U.S.C. § 1915,
does not provide for the appointment of expert witnesses to
aid prisoners or other indigent litigants. Hannah v.
United States, 523 F.3d 597, 601 (5th Cir. 2008)
(quoting Pedraza v. Jones, 71 F.3d 194, 196 (5th
Cir.1995)); see also Faletogo v. Moya, 2013 WL
524037, at *2 (S.D. Cal. Feb. 12, 2013). Instead, the
district court has discretion to appoint an expert pursuant
to Rule 706(a) of the Federal Rules of Evidence which reads,
in part, “[t]he court may on its own motion or on the
motion of any party enter an order to show cause why expert
witnesses should not be appointed." Lopez v.
Scribner, 2007 WL 1215420 (E.D. Cal. Apr. 24, 2007)
(citing Fed.R.Evid. 706(a); see also Walker v. American
Home Shield Long Term Disability Plan, 180 F.3d 1065,
1071 (9th Cir.1999)).
706 expert does not serve as an advocate for any party and
each party retains the ability to call its own experts.
Fed.R.Evid. 706(e). Rule 706 permits the appointment of an
unbiased, neutral expert only if the expert's opinion
would promote accurate fact finding and only where an expert
would be particularly helpful evaluating complex or confusing
evidence, such as scientific, technical, or other specialized
knowledge. Gorton v. Todd, 793 F.Supp.2d 1171, 1179
(E.D. Cal. June 29, 2011; see also Ledford v.
Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). The
court should also consider whether (1) appointment of an
expert will promote accurate factfinding; (2) testimony from
the parties' experts is sufficient to reveal the facts;
and (3) the claim raises constitutional concerns.
Gorton, 793 F.Supp. 2d at 1171, 1182. A
court-appointed expert is entitled to reasonable compensation
and, in civil cases, the compensation is paid by the parties
in proportion and at such time as the court directs; however,
where one party is indigent, the court may apportion all the
cost to one side. O'Neill v. Bannister, 2012 WL
12542743, at *2 (D. Nev. Aug. 29, 2012).
asking the Court to appoint experts in the instant case,
Plaintiff submits that expert testimony is required regarding
his alleged not-readily observable injuries such as head
trauma, neck and back pain, grief, and headaches. Docket No.
137 at 12. Plaintiff additionally submits that expert opinion
is needed to resolve the factual dispute regarding the source
and cause of the injuries. Id. Plaintiff further
submits that expert testimony is necessary regarding the
medical treatment he received or should have received, and
the value of such treatment. Id. at 13. Finally,
Plaintiff submits that these issues constitute complex
medical issues and present a serious dispute that can only be
resolved or understood through expert testimony. Id.
response, Defendants submit that the circumstances of this
case do not present exceptional or compelling situations
warranting the Court's appointment of an expert. Docket
No. 142 at 10-11. Defendants further submit that
Plaintiff's motion is untimely, as the deadline to
disclose experts expired on April 17, 2019. Id.
Additionally, Defendants submit that Plaintiff's motion
seeks an expert to support his claim, which falls outside the
scope of Rule 706, and that the Court should not partake in
the business of advocating Plaintiff's case for him.
Id. at 11-12. Defendants submit that the in
forma pauperis statute, 28 U.S.C. § 1915, does not
entitle the expenditure of public funds for witnesses, and
that expending public funds for an expert exposes the public
to a costly burden. Id. at 12-13. Defendants also
submit that Plaintiff's motion fails to comply with the
procedural processes set forth in Rule 706. Id. at
13. Finally, Defendants submit that Plaintiff's claims
are focused on subjective analysis which does not involve the
evaluation of complex scientific evidence; therefore, a Rule
706 expert is not appropriate in this case. Id. at
reply, Plaintiff submits that he seeks the appointment of a
neutral expert and acknowledges that this appointment is at
the discretion of the Court. Docket No. 146 at 8, 10-11, 14.
Plaintiff submits that his medical treatment providers are
insufficient as expert witnesses because they are considered
non-retained experts and, therefore, cannot opine on a
variety of issues, including the opinions of other treating
physicians, causation, future damages, hypotheticals, the
reasonableness and necessity of other treatments, or the fees
and costs associated with other treatments. Id. at
9-10. Plaintiff additionally submits that his motion is
timely because he relied on Defendants' representations
that they were not retaining experts and were not challenging
causation; however, once Defendants disclosed their experts
on the expert disclosure deadline, Plaintiff renewed his
motion. Id. at 11. Plaintiff also submits that,
because an injury is a subjective condition, expert opinion
is required to establish a causal connection between the
incident and the injury. Id. at 12. Plaintiff
further submits that Defendants' concerns over the
potential cost of appointing experts in prisoner's rights
cases is unwarranted considering the fact thar only a paucity
of cases endure to the point of appointing experts.
Id. at 14-15. Finally, Plaintiff submits that he has
followed the correct procedure to ask the Court to appoint a
Rule 706 expert. Id. at 16.
Court finds that, under the circumstances of this case,
Plaintiff's motion is timely. The Court further finds
that the legal issues involved in this action are not
particularly complex and, therefore, the appointment of an
expert to promote accurate factfinding is not necessary.
See Walker v. American Home Shield Long Term Disability
Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (finding that
district court decision to appoint independent expert to
assist court in evaluating contradictory evidence about
elusive disease of unknown origin was appropriate). The Court
finds that the testimony of a neutral expert is not required
to “assist the trier of fact to understand the evidence
or to determine a fact in issue.” Fed.R.Evid. 702(a).
Further, the Court finds that the parties' disclosed
experts are sufficient to evaluate the facts of this case.
Accordingly, Plaintiff's motion for court-appointed
experts, Docket No. 137, is DENIED.
Motion to Strike Non-Retained Experts of Defendants
26(a)(2) requires a party to “disclose to the other
parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or
705.” See Fed. R. Civ. P. 26(a)(2). A
non-retained expert witness, who is not required to provide
an expert report, may testify as both a fact witness and an
expert witness under ...