Federal Evidence Review

After excluding a survey as unreliable by the plaintiffs’ expert in Fair Debt Collection Practices Act case, the Seventh Circuit suggests the trial court may wish to consider a court-appointed expert under FRE 706, in DeKoven v. Plaza Associates, 599 F.3d 578 (7th Cir. March 17, 2010) (Nos. 09-2016, 09-2249)

Although FRE 706 reflects the power of a trial court to appoint its own experts, why would a court do so when the parties have utilized FRE 702 to present their own experts? The Ninth Circuit suggested that where a party’s experts are “confusing and conflicting,” a court might well appoint its own independent expert to help reach a decision. See Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (”[T]he district court’s statement that the medical testimony was not ‘particularly clear’ suggests that the court found the evidence concerning fibromyalgia to be confusing and conflicting. This case presented the district court an appropriate occasion to appoint an independent expert to assist the court in evaluating contradictory evidence about an elusive disease of unknown cause.”) Despite the suggestions of some appellate courts, whether a court-appointed expert will minimize the confusion a judge or jury may face in observing a “battle” of experts may depend on the case.

The Seventh Circuit recently added to the appellate court suggestions for the appointment of a court-expert under FRE 706. In two cases consolidated on appeal, the district judges entered summary judgment for the defendant after rejecting survey evidence collected by the plaintiffs’ expert witnesses. Both cases were class actions in which the class plaintiffs’ cited “dunning letters sent them” by the defendant debt-collection agencies. The plaintiffs claimed the letters were deceptive, violating provisions of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p.

The plaintiffs proffered experts who had conducted surveys in an attempt to measure the alleged deception. For instance, the experts interviewed shoppers at a mall regarding the text of letters in order to probe whether the respondents interpreted the letters to be an opening offer by the defendant (which it in fact was) or a last chance to settle a debt dispute and not an “opening bid” by the defendant in the debt collection process (which the plaintiff’s claimed it was). However, the trial judges did not admit the survey results, finding that it failed to provide reliable data about the plaintiffs’ understanding of letters and whether they were deceived. In affirming the exclusion of the expert reports on the surveys, the Seventh Circuit succinctly noted an opening for the court-expert under FRE 706, citing district court cases in the circuit:

“Suits under the Fair Debt Collection Practices Act have repeatedly come to grief because of flaws in the surveys conducted by the plaintiffs’ experts …. District judges may want to consider exercising the clearly authorized but rarely exercised option of appointing their own expert to conduct a survey in FDCPA cases.”

DeKoven, 599 F.3d at 583 (citing Muha v. Encore Receivable Management, Inc., 558 F.3d 623, 625-26 (7th Cir. 2009); Jackson v. Midland Credit Management, Inc., 445 F.Supp.2d 1015, 1020-21 (N.D.Ill. 2006); Jackson v. National Action Financial Services, Inc., 441 F.Supp.2d 877, 882 (N.D.Ill. 2006); Hernandez v. Attention, LLC, 429 F.Supp.2d 912, 916-18 (N.D.Ill. 2005))

The circuit offered assurances about the process of FRE 706 appointment, although in a cursory manner:

“Judges can assure themselves of the expert’s neutrality by (as in arbitration) asking the parties’ own experts to nominate a third expert to be the court-appointed expert. A genuine neutral should be easy to find in the field of survey research because few survey researchers have settled views about debt collection.

DeKoven, 599 F.3d at 583. The circuit concluded its discussion by providing a bit of cautionary advice on proper use of FRE 706 experts:

“The decision to appoint an expert is within the discretion of the trial judge, of course, and we merely invite consideration of the possibility of using this procedural device to improve judicial understanding of survey methodology. Although the judge is authorized to allocate the cost of the court-appointed expert between the parties, Fed. R. Evid. 706(b), we do not suggest that the defendant should be made to contribute to the cost of a survey conducted by the neutral expert, for in cases under the Fair Debt Collection Practices Act defendants rarely conduct their own surveys but are content to point out the deficiencies in plaintiffs’ surveys. A survey conducted by a neutral is a possible alternative to the often unedifying spectacle of a battle of party-appointed experts.”

DeKoven, 599 F.3d at 583.

While encouraging use of FRE 706, it was clear that the circuit had difficulty finding examples of cases where the use of court-appointed experts had been assessed by other circuits. The Seventh Circuit cited only a handful, in the subject areas of antitrust violations, trademark infringement and medical litigation:

• General Electric Co. v. Joiner, 522 U.S. 136, 149-50 (1997) (Regarding use of court-appointed expert in conducting Daubert gatekeeping; FRE 706 is one of “the various Rules-authorized methods for facilitating the courts’ task, it seems to me that Daubert ‘s gatekeeping requirement will not prove inordinately difficult to implement.”) (Breyer, J., concurring)

• In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 665 (7th Cir. 2002) (In price conspiracy litigation, “Turning to the technical statistical evidence … inferences drawn from them by the use of statistical methodology … we recommend that the district judge use the power that Rule 706 of the Federal Rules of Evidence expressly confers upon him to appoint his own expert witness, rather than leave himself and the jury completely at the mercy of the parties’ warring experts”)

• Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd. Partnership, 34 F.3d 410, 414-15 (7th Cir. 1994) (In Lanham Act trademark case, “The judicial constraints on tendentious expert testimony are inherently weak because judges (and even more so juries, though that is not an issue in a trademark case) lack training or experience in the relevant fields of expert knowledge. But that is the system we have. It might be improved by asking each party’s hired expert to designate a third, a neutral expert who would be appointed by the court to conduct the necessary studies. The necessary authority exists, see Fed. R. Evid. 706, but was not exercised here.”)

• Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1070-71 (9th Cir. 1999) (In wrongful termination of disability benefits case, “The district court did not abuse its discretion in appointing an independent medical expert to help evaluate medical evidence. We have previously held that the district court has discretion to consider evidence beyond the record where ‘additional evidence is necessary to conduct an adequate de novo review of the benefit decision.’”)

• United States v. Microsoft Corp., 147 F.3d 935, 955 n. 22 (D.C.Cir. 1998) (In antitrust litigation civil contempt proceeding, “To the extent that adjudication may lead the court into deep technological mysteries, we note the court’s power under Rule of Evidence 706 to appoint expert witnesses. Whether such an expert is appointed by agreement of the parties or not, the expert’s exposure to cross-examination by both sides, see Rule 706(a), makes the device a far more apt way of drawing on expert resources than the district court’s unilateral, unnoticed deputization of a vice-judge.”)

DeKoven, 599 F.3d at 583.