No Obligation To Appoint FRE 706 Experts To Aid Litigants

In medical malpractice action, there was no affirmative obligation of the trial court to appoint an expert after plaintiff failed to procure such an expert and where counsel who specialized in medical malpractice cases was also unable to find an expert who would not contradict plaintiff’s claim, and medical record evidence contradicted plaintiff’s prima facie claim, in Gaviria v. Reynolds, 476 F.3d 940 (D.C. Cir. Feb. 9, 2007) (No. 05-7010)

FRE 706 provides discretion for the trial court to appoint an expert witness. The rule fails to set the standards or timing for a court-appointed expert. This often has to be provided in the case law, and the incidence of FRE 706 cases is not extensive. In a 2007 case, the D.C. Circuit addressed whether a trial court must appoint an expert where a party has been unable to provide its own expert to make out an essential expert element of the case -- where the underlying law essentially requires a litigant to support their claims with expert testimony. This is common in medical malpractice actions where expert testimony is often necessary regarding the applicable standard of care. The D.C. Circuit failed to find any affirmative obligation of the trial court to appoint an expert in the case.

In the case, plaintiff Gaviria 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. When his jaw did not improve, he brought a medical malpractice suit against nine of the surgeons who provided medical care.

His court-appointed attorney apparently had difficulty developing the plaintiff's claim and withdrew, so the plaintiff pursued the litigation pro se. The district court appointed a replacement attorney for the plaintiff, who sent the plaintiff’s records of the operations to a “dentist specializing in oral surgery” such as that suffered by the plaintiff. That doctor reported not to “see anything ususual” in the surgeries and that the underlying problem suffered by the plaintiff “frequently” are “never cured.” Gaviria, 476 F.3d at 942.

The attorney reported these findings to the plaintiff and this counsel also withdrew from the case. The trial court granted the plaintiff’s request to proceed pro se. The court then appointed counsel to assist the plaintiff in court annexed mediation. Counsel assisted the plaintiff in further discovery and when mediation failed, counsel withdrew. The court declined to appoint further legal counsel and rejected the plaintiff's multiple requests for a court-appointed expert. The trial judge found that extensive discovery had occurred, aided by qualified counsel, and that the discovery had produced no evidence probative of the plaintiff’s claim. Summary judgment was granted in favor of the defendant surgeons after the plaintiff failed to provide “a sworn statement or any other evidence from the [expert] doctors at the ... facility to support his claim pertaining to causation” and he was unable to “provide expert testimony on the applicable standard of care.” Gaviria, 476 F.3d at 943 (quoting Gaviria v. D.C. Gen. Hosp., Civ. No. 00-2350, mem. op. at 4 (D.D.C. Sept. 16, 2004))

The circuit affirmed the trial court’s decision not to appoint an expert, finding no abuse of discretion. The circuit noted that FRE 706 provided no guidance on “when” the court should appoint an expert and that courts have been reluctant to conclude there is an affirmative duty to make an appointment under FRE 706. Gaviria, 476 F.3d at 945 (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); 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.”) (other citations omitted))

The D.C. Circuit did not cite to any case which involved a situation precisely like that of the plaintiff -- where an expert was needed for the pro se plaintiff to present a prima facie showing. As the circuit noted, “other courts to consider Rule 706 have required only that the district court actually exercise its discretion and expressly articulate a reasoned explanation for its determination.” Gaviria, 476 F.3d at 945 (citing Quiet Tech., 326 F.3d at 1348-49 (“[A]s long as the district court thoroughly considers a request for the appointment of such an expert and reasonably explains its ultimate decision thereon, that decision is vested in the sound discretion of the trial court.”); Steele, 87 F.3d at 1270-71 (“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.”)).

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 so that the pro se plaintiff could make the claim. As the circuit concluded:

it 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 946.

The holding in Gaviria is also instructive in light of the drafting history of FRE 706. As indicated by the Advisory Committee Notes, the Rules Advisory Committee recognized that the rule would be seldom used. Rather, the committee hoped to establish a "comprehensive scheme" for court-appointed experts that would apply in both criminal and civil cases. But the underlying theory to proposed FRE 706 was that the expert was an aid to the court, not necessarily to the parties. Having this rule on appointing its own expert witnesses was to ensure the court received the expert information needed for decision and for resolving conflicts in the evidence, as well as “exert[ing] a sobering effect” on the positions taken by the parties who may have been “shopping” for experts and on their expert witnesses, who occasionally displayed “venality.” See ACN.

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Federal Rules of Evidence
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