FRE 706: An Alternative To Being "Completely At The Mercy Of The Parties’ Warring Experts”?

Under what circumstances should a trial court consider engaging its own expert? Generally, the concept of the court having its own specialist conflicts with the operation of the adversary system and with the parties' rights to present their evidence. However, the expert rules explicitly contemplate the appointment of an expert by the court in FRE 706. The Seventh Circuit has suggested that the use of FRE 706 experts could play a role in sharpening the "absorptive capacities of judges and juries," in complex cases, in In Re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651 (7th. Cir. 2002) (No. 01-3565)

The drafters of FRE 706 hoped that the rule's provisions for appointment by the court of its own expert would "exert[] a sobering effect" on parties who may have been “shopping” for experts to support their case. However the rule is not frequently used by the federal courts. Under FRE 706(a), "On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act." The operation of the rules was considered in a Seventh Circuit case.

Battle Of The Experts

In the case, plaintiff purchasers of high fructose corn syrup (HFCS) charged that defendant Archer Daniels Midland Co. (ADM) conspired with other major manufacturers of HFCS between 1988 to 1995 to fix the price of that product. The case was one in which the circuit found itself "naturally concerned about the practicability of a jury trial ... in a case with such a staggeringly large record-the sealed exhibits alone fill 14 large boxes-that includes so much highly technical statistical material." For instance one aspect of the plaintiff's proof of the alleged conspiracy involved a regression analysis by their expert. The expert construed the results of the regression to "statistically support[ ] the theory that there had been a price-fixing conspiracy. However, the defense presented its "regression analysis done by one of their economic experts, who added a couple of variables to the analysis of the plaintiffs' expert and, presto, the [plaintiff's statistical support that there was a conspiracy] ... ceased to be statistically significant." This was followed by another round of experts, as the circuit explained in exasperating detail:

The plaintiffs rebutted with still another expert who pointed out correctly that adding variables that are correlated with the variable of interest can make the effect of the latter disappear-to which the defendants reply, also correctly, that there are statistical methods for solving this problem (the problem of multicollinearity, as it is called by statisticians). They argue that their expert solved it and the plaintiffs argue that he did not and also that there was no statistical rationale for adding those other variables in the first place.
In re High ₣uctose Corn Syrup Antitrust Litigation, 295 F.3d at 665.

The FRE 706 Alternative

The circuit seemed to throw up its hands at this point in exasperation, observing that to sort out these contentions and reach a conclusion about the experts and their tools "requires a knowledge of statistical inference that judges do not possess." One solution to the seeming complexity of the case involved the application of FRE 706:

Turning to the technical statistical evidence (not the data themselves, which for the most part are uncontested, but the 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. The main objection to this procedure and the main reason for its infrequency are that the judge cannot be confident that the expert whom he has picked is a genuine neutral. The objection can be obviated by directing the party-designated experts to agree upon a neutral expert whom the judge will then appoint as the court's expert. The neutral expert will testify (as can, of course, the party-designated experts) and the judge and jury can repose a degree of confidence in his testimony that it could not repose in that of a party's witness. The judge and jurors may not understand the neutral expert perfectly but at least they will know that he has no axe to grind, and so, to a degree anyway, they will be able to take his testimony on faith.
In re High ₣ructose Corn Syrup Antitrust Litigation, 295 F.3d at 665 (citing Manual for Complex Litigation, supra, § 21.51; Ford ex rel. Ford v. Long Beach Unified School District, 291 F.3d 1086, 1090 (9th Cir. 2002); Meister v. Medical Engineering Corp., 267 F.3d 1123, 1125 and n. 3 (D.C. Cir. 2001); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999)).


Apparently on remand, the trial court did not feel it necessary to appoint its own expert or even to address the circuit's suggestion that FRE 706 be utilized to aid the court. The only reference the trial judge made to the admission of expert opinion after the remand was to note that "the Seventh Circuit declined to reconsider this Court's refusal to exclude Defendants' expert reports under Daubert." There are few cases directly considering the application of FRE 706. The In re High ₣ructose Corn Syrup Antitrust Litigation confirms again that courts may find the use of this avenue as an option to resolve issues in the case.


Federal Rules of Evidence