Court's Rule 706 Mistake Isn't Reversible Error
Just because a court doesn't know its own power doesn't mean the court committed reversible error.
The Eleventh Circuit Court of Appeals ruled this week that a district court's lack of familiarity with the specifics of Federal Rule of Evidence 706 wasn't sufficient to reverse the court on summary judgment.
Federal prisoner William Robinson brought a medical negligence claim against the government under the Federal Tort Claims Act (FTCA). Robinson's claim related to the treatment he received for a hernia and a skin condition while incarcerated at the U.S. Penitentiary in Atlanta. The district court granted summary judgment because Robinson conceded he received adequate treatment for his hernia and did not present any expert medical testimony about his skin condition.
But wait! This isn't an open-and-shut case, (even though it is an unpublished opinion.) Robinson wanted an expert. He asked the court to appoint an expert. The court refused; not out of cruelty, but ignorance.
In FTCA actions, liability is determined under the law of the state in which the alleged negligence occurred. For Robinson, that meant proving medical negligence under Georgia state law. To prevail on his medical negligence claim, Robinson had to show: (1) the duty of the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that the failure was the proximate cause of his the injury.
To establish proximate cause, he had to use expert testimony. Robinson asked the court to appoint an expert to his case, but the request was denied.
Robinson argued to the Eleventh Circuit Court of Appeals that the district court erred when it declined to appoint an expert medical witness based on a belief that it had no authority to do so. Under Rule 706, a district court has the discretionary power to appoint an expert witness.
The Eleventh Circuit ruled that there was no reversible error in Robinson's case. Here, the district court appointed counsel to represent Robinson, and his counsel could have secured an expert. After Robinson was examined by a dermatologist, his counsel filed a response opposing the government's summary judgment motion, but indicating that he has "no expert opinion evidence to submit." In light of his attorney's filing, the Eleventh Circuit concluded that the outcome would not have differed if the court appointed an expert witness, and affirmed summary judgment.
The EvidenceProf Blog points out that Rule 706 is "rarely used, and courts are generally under no obligation to appoint experts." While a court has the authority to appoint an expert witness, you're unlikely to win a summary judgment challenge based on a Rule 706 misunderstanding.
- Robinson v. U.S. (Eleventh Circuit Court of Appeals)
- Expert Witness Directory (FindLaw)
- Expert Witness Testimony Not Limited to Expert Report Content (FindLaw's First Circuit Blog)
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