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Gillentine v. Correctional Medical Services, Inc.

United States District Court, N.D. Alabama, Northeastern Division

November 6, 2014

TOMMY JAMES GILLENTINE, Plaintiff,
v.
CORRECTIONAL MEDICAL SERVICES, INC., et al., Defendants.

MEMORANDUM OF OPINION

R. DAVID PROCTOR, District Judge.

On February 25, 2014, the Eleventh Circuit vacated the district court's order granting summary judgment in favor of Defendants, and remanded the case to this court with instructions Ato consider Gillentine's motion for an expert witness, exercising its discretion in accordance with [Federal] Rule [of Evidence] 706.@ (Doc. 56-1; Gillentine v. Correctional Medical Services, et. al., No. 12-15334, 556 Fed.App'x 845 (11th Cir. 2014)). In doing so, the court of appeals explained:

We agree that, under Rule 706 of the Federal Rules of Evidence, courts have discretionary authority to appoint an expert and that discretion was not exercised here. See Fed.R.Evid. 706.
Rule 706 "provides the [district] court with discretionary power to appoint an expert witness either on the court's own motion or the motion of a party, " and this authority is not limited to criminal cases. See Steele v. Shah, 87 F.3d 1266, 1270-71 (11th Cir. 1996) (determining that the district court, by failing to give an explanation for its denial of indigent plaintiff's motion to appoint an expert witness, had failed to exercise informed discretion, and requiring, on remand, the district court to reconsider the motion and exercise its discretion in accordance with Rule 706).

Id. This court understands that its previous order was vacated because it appeared that it had not recognized it has the discretion, under Rule 706, to grant the request to appoint an expert and, furthermore, it did not explain any basis for not exercising that discretion. This point is made clear in the Eleventh Circuit's opinion remanding this case:

This court has not yet addressed the question of "whether, or under what circumstances" a district court may apportion all of the costs of a court-appointed expert to the non-indigent parties in a lawsuit. See Young v. City of Augusta, Ga., 59 F.3d 1160, 1170 (11th Cir. 1995). We decline to decide this question now and instead allow the district court to decide whether it is even necessary to reach this question.
"We emphasize that we do not here offer any opinion on the propriety of appointing an expert witness; we only direct that discretion on the matter be exercised and reflected in a reasoned ruling." Steele, 87 F.3d at 1271.
For the for[e]going reasons, we vacate the judgment and remand for the district court to consider Gillentine's motion for an expert witness, exercising its discretion in accordance with Rule 706.

Gillentine, 556 Fed App'x at 846-47 (footnote omitted).

In accordance with the instructions of the Eleventh Circuit, this court now considers Plaintiff's motion for appointment of an expert medical witness. (Doc. 28). Plaintiff asks the court to appoint a physician specializing in internal medicine or infectious disease or liver physiology Ato represent him@ in this matter in order to Arefute the Defendants's [(sic)] claims through expert testimony on his own." ( Id. at 1-2). Thus, it is clear that Plaintiff is seeking the appointment of his own expert witness, to assist him with the presentation of his version of the case, not a "court's expert" appointed to offer neutral advice or information to the court. For the reasons discussed below, Plaintiff's motion is due to be denied.

Traditionally, Federal Rule of Evidence 706 has granted courts broad discretion to appoint an independent, neutral expert to aid the court, not an expert for a party's benefit. See Hannah v. United States, 523 F.3d 597, 600 (5th Cir. 2008) (finding no error in district court's refusal to appoint a Rule 706 expert because "Rule 706 contemplates the appointment of an expert to aid the court.... Hannah seeks an expert for his own benefit."), citing Christopher B. Mueller & Laird C. Kirkpatrick, 3 FEDERAL EVIDENCE §§ 7:25, 7:26 (3d ed.2007). Nevertheless, Eleventh Circuit precedent, while not entirely clear, seems to assume that a Rule 706 expert can be appointed to assist an indigent civil litigant. For example, in Steele v. Shah, 87 F.3d 1266 (11th Cir. 1996), a prisoner sued a prison psychiatrist for discontinuing his psychotropic medication previously prescribed for him. To oppose the doctor's motion for summary judgment, the prisoner "filed a motion for appointment of an expert witness and particularly requested that Dr. Carra [plaintiff's former prison psychiatrist] be the appointed expert." The denial of the motion was reversed on appeal, with the court of appeals saying:

[Plaintiff] also challenges the district court's refusal to appoint counsel and an expert witness to assist him.
* * *
Rule 706, Fed.R.Evid. provides the court with discretionary power to appoint an expert witness either on the court's own motion or the motion of a party. [Plaintiff] invoked an exercise of that discretion and was entitled to a reasoned ruling upon it. The case is one that by its nature warrants consideration of the possible need in order to insure a just resolution of the claim. As the parties agree, the appropriate standard of psychiatric care is at issue in the case. Expert opinion on that issue and its application here obviously might be important to the finder of fact. See Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986). If, as he claims, [Plaintiff] is indigent, this could provide further reason to appoint an expert to avoid a wholly one-sided presentation of opinions on the issue. See Michael H. Graham, Federal Practice and Procedure § 6681, at 355 (interim ed. 1992) (noting that one of the rationales for Rule 706 is that some litigants may not have the wherewithal to locate and/or pay for an ...

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