Applying FRE 706 In A Hard Case

In a diversity medical malpractice suit by an in forma pauperis plaintiff against surgeons who operated on the plaintiff's jaw during the time of his incarceration, even though expert testimony was required for the plaintiff's prima facie malpractice case, under FRE 706 the trial court was not required to appoint an expert witness to help develop the case once it was clear that the plaintiff was unable to "adduce any evidence" -- expert or otherwise -- supporting his malpractice claims, in Gaviria v. Reynolds,476 F.3d 940 (D.C. Cir. Feb. 9, 2007) (No. 05-7010)

FRE 706 is not frequently employed by federal courts to aid the court in resolving highly complex or technical issues or to aid the trial court in resolving conflicts in the evidence. The Advisory Committee Notes to FRE 706 suggest the drafters expected the rule to provide a convenient device for the court to receive the expert information needed for decision and for resolving conflicts in the evidence, particularly when the parties seemed unable or unwilling to do so. The Advisory Committee expected that having the option to appoint a court-sponsored expert, the court could “exert[] a sobering effect” on the positions taken by the parties who may have been “shopping” for experts as well as on experts witnesses the parties had procured, who otherwise could display “venality” in proffering expert opinion to the fact finder. See ACN. The Advisory Committee recognized that the Rule would be seldom used, but expected it would establish a “comprehensive scheme” for court-appointed experts that would apply in both criminal and civil cases. The D.C. Circuit has explored how extensive the "comprehensive scheme" was for FRE 706.

In the case, plaintiff Gaviria sought an order by the district court to appoint an expert to assist in resolving his diversity malpractice case. The defendant contended that under FRE 706 the court was required to appoint its own expert when a party was unable to provide an essential expert opinion which, under the prevailing law, was a requirement for the medical malpractice case. The plaintiff's complaint was that he received a fractured jaw during an arrest in Massachusetts in 1989. Five years later, while in custody in the District of Columbia Jail, he began to complain of problems on his right jaw and had five surgeries to repair his jaw in the D.C. General Hospital.

After his jaw did not improve, he brought the medical malpractice suit against Reynolds and the other eight surgeons who provided medical care. Initially the trial court appointed an attorney to assist the plaintiff make his claim. But the appointed counsel eventually withdrew from the case and the plaintiff had to proceed in the litigation pro se. While he was represented by appointed counsel, the attorney sent the plaintiff’s records of the medical procedures to a “dentist specializing in oral surgery” such as that suffered by the plaintiff. That doctor reported seeing nothing “unusual” in the surgeries and opined that the underlying problems suffered by the plaintiff “frequently” are “never cured.” The attorney reported these findings to the plaintiff and withdrew from the case. The trial court granted the plaintiff’s request to proceed pro se.

The court then appointed new counsel to assist the plaintiff in a court-annexed mediation. There counsel assisted the plaintiff in making further discovery but when the mediation ultimately failed, this appointed counsel withdrew as well. The trial judge declined the plaintiff’s multiple requests for a court-appointed expert under FRE 706 so that the court could evaluate the plaintiff's malpractice claims. The trial judge declined this, finding that extensive discovery had occurred, that the plaintiff had been aided by qualified counsel in that process, and that the discovery conducted had produced virtually no evidence probative of the plaintiff’s malpractice claim. Accordingly, the court granted summary judgment to the defendant surgeons after the plaintiff failed to provide “a sworn statement or any other evidence from the [expert] doctors ... to support his claim pertaining to causation.” As the plaintiff proved unable to “provide expert testimony on the applicable standard of care,” the plaintiff lost the case.

The D.C. Circuit rejected the plaintiff's contentions, finding that there was no affirmative obligation of a district court to appoint an expert in the case. Gaviria, 476 F.3d at 973. In affirming the grant of summary judgment against the plaintiff, the circuit assessed the trial judge's decision not to appoint an expert. It found no error. The circuit noted that under FRE 706 there was no affirmative duty to make an appointment of an expert witness. Gaviria, 476 F.3d at 975 (citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1348-49 (11th Cir. 2003) (noting “we are unfamiliar with any set of circumstances under which a district court bears an affirmative obligation to appoint an independent expert”); Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996) (remanding for determination of whether appointment was warranted); Okla. Natural Gas Co. v. Mahan & Rowsey, Inc., 786 F.2d 1004, 1007 (10th Cir. 1986) (“The fact that the parties’ experts have a divergence of opinion does not require the district court to appoint experts to aid in resolving such conflicts. We conclude that the district court was in no way obligated to appoint an expert in this case and its failure to do so cannot give rise to error.”)).

While an expert opinion was essential to the plaintiff’s medical malpractice claim, there was no obligation of the trial court to appoint an expert under FRE 706. As the circuit concluded:

[I]t is fair to say that Gaviria’s claims fail not because of the district court’s refusal to appoint an expert witness but because of his broader failure to adduce any evidence that the claims have merit. The district court and mediation counsel guided Gaviria through discovery and, through the efforts of appointed counsel, an expert examined the medical records from Gaviria’s first two surgeries and found that there was likely nothing wrong, a conclusion supported by the subsequent medical tests forwarded to the district court by the Bureau of Prisons. Under the circumstances, the district court did not abuse its discretion in refusing to appoint an expert witness.
Gaviria 476 F.3d at 976 (emphasis added).

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