Commercial Litigation and Arbitration

Court-Appointed Experts — Standard of Review

Does a plaintiff have a right to a court-appointed expert where expert testimony is an element of the plaintiffs’ cause of action? Not in the D.C. Circuit, under Gaviria v. Reynolds, 2007 U.S. App. LEXIS 2890 (D.C. Cir. Feb. 9, 2007) (a medical malpractice action brought by a pro se prisoner). Recognizing that the ‛standard for reviewing the district court's refusal to appoint an expert under Rule 706 is a matter of first impression“ in the D.C. Circuit, the Gaviria Court concluded that the abuse-of-discretion standard was most appropriate ‛because the rule speaks in permissive terms and requires an individualized case-specific determination.“ The D.C. Circuit noted that ‛Rule 706 provides no instruction as to when an expert should be appointed except insofar as the district court ‘may’ do so,“ and that ‛[c]ourts have hesitated to find any affirmative obligation to exercise the Rule 706 power.“ The fact that the requested expert testimony pertained to an essential element of the plaintiff’s claim was a factor for the District Judge to consider (and a factor not present in any other appellate decision on the subject, according to the court), but that, alone, did not dictate the appointment of a court-appointed expert. The issue remained a matter of judicial discretion, which the appellate court found well exercised given that the pro se plaintiff’s erstwhile (appointed) counsel had consulted an expert who found no likely support for the plaintiff’s claim.

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