FRE 706 Expert Witnesses And The "Fear And Loathing Of Science"

Does the legal profession's "fear and loathing of science" account for the scarce use of procedures, like FRE 706 for appointment by the court of its own expert witness? The Seventh Circuit suggested as much, recommending a FRE 706 expert witness, or other pro-active steps could have expeditiously resolved a prisoner's denial of medical treatment case; had the court used FRE 706 experts, for example, it might have "saved a good deal of time, effort, and paper" in assessing any scientific issues that could resolve Jackson v. Pollion, _ F.3d _ (7th Cir. Oct. 28, 2012) (No. 12–2682)

FRE 706 allows a trial court to appoint an expert either sua sponte or on motion of a party. Rule 706(a) provides in part: "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." If the trial court appoints an expert, Rule 706(e) clarifies that the "rule does not limit a party in calling its own experts." The Seventh Circuit recently encouraged consideration of court-appointed experts as an option to address case issues, among other avenues.

At least for the Seventh Circuit the matter seemed simple. It was a "plainly meritlesss suit ... filed ... more than four years ago," in which the participants energies had "been consumed largely by procedural wrangling and protracted, tedious depositions." This was the circuit's conclusion about a case involving a prisoner serving a 40-year sentence for first-degree murder. The prisoner accused two prison employees "of having been deliberately indifferent to his serious medical condition—hypertension (high blood pressure)—for which he was not receiving his prescribed medication" for all of three weeks. Jackson, _ F.3d at _.

Trial Court Summary Judgment

The Seventh Circuit rejected that the prisoner's complaint had any foundation for the argument that the defendants had "inflict[ed] cruel and unusual punishment" on the prisoner, providing a basis for his 42 U.S.C. § 1983 constitutional tort suit. This was also recognized by:

The district judge [who] granted summary judgment in favor of the defendants and dismissed the suit. The judge's ground, so clearly correct as not to require elaboration by us, is that neither defendant was deliberately indifferent to the plaintiff's condition: the nurse practitioner didn't know the plaintiff wasn't receiving his medication and the correctional counselor, who is not a member of the prison's medical staff, though he knew about the plaintiff's problem assumed the medical staff would deal with it.
Jackson, __ F.3d at __. This was not the sort of conduct that could make up a deliberate indifference claim.

Unnecessary Complications?

The circuit seemed to suggest that the case was a slam-dunk dismissal. It found "troubling" that the plaintiff's filings “'can present evidence permitting a reasonable inference' that he had experienced a serious medical condition as a consequence of the interruption of his medication. This is mistaken, and (not surprisingly) has no support in the record. But it is not only repeated in the plaintiff's brief in this court, as one would expect; it is largely ignored by the defendants. Jackson, __ F.3d at __.

The circuit seemed of mixed mind about the reasons for the delay and complications. At times it suggested the case reflected a lack of vigor because the participants "could have skipped all medical questions, relying entirely on the lack of evidence of deliberate indifference by either defendant." Instead the defendants let the case be battled out on the “objective seriousness” of the plaintiff's medical situation. Essentially this involved the question of whether the plaintiff had any medical condition for which the defendants were culpable. The circuit described that the case's focus was "not hypertension but the medical consequences, in fact negligible, of a three-week deprivation of medicine for mild, early-stage hypertension." Jackson, __ F.3d at __.

Fear Of Scientific Knowledge

The Seventh Circuit offered a variety of actions that the participants in the case might have taken to alleviate the unnecessary complications. It noted that:

To determine the effect on the plaintiff's health of a temporary interruption in his medication, the lawyers in the first instance, and if they did their job the judges in the second instance, would have had to make some investment in learning about the [plaintiff's claimed medical] condition. That could have taken the form of a judge's appointing a neutral expert under Fed. R. Evid. 706, or insisting that the plaintiff's lawyer obtain an expert's affidavit [as allowed by FRE 702], or just consulting a reputable medical treatise [as permitted by FRE 201].
Jackson, __ F.3d at __. At its root, the Seventh Circuit observed, "[t]he legal profession must get over its fear and loathing of science." It was the result of the legal profession's and the judiciary's "discomfort ... with science and technology." It is ingrained in the profession because "[i]nnumerable ... lawyers ... explain that they picked law over a technical field because they have a 'math block' — 'law students as a group, seem peculiarly averse to math and science.'” But it's increasingly concerning, because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation." Jackson, __ F.3d at __ (citation omitted).


Cases like Jackson serve to remind that there are competing approaches to resolving litigation, some more complex than others. The FRE provides a number of avenues, as the Seventh Circuit noted by number and example that could help move the case forward, such as “appointing a neutral expert under Fed. R. Evid. 706,” or having a party provide an instructive expert under FRE 702, or “just consulting a reputable medical treatise,” which can be considered to some degree under FRE 201 procedures for judicial notice of adjudicative fact.


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