Chapter 5 Court-Appointed Experts Under Fed. R. Evid. 706

• Jurisdiction: United States

Chapter 5 Court-Appointed Experts Under Fed. R. Evid. 706

Federal Rule of Evidence 706 authorizes the bankruptcy court to appoint an expert witness on its own motion.²¹⁴ Despite the rather open-ended invitation under Rule 706, the standard treatises on federal evidence have noted the general reluctance of federal courts in appointing their own experts.²¹⁵ Court-appointed witnesses have tended to be limited to antitrust cases,²¹⁶ multidistrict court litigation,²¹⁷ mass torts cases,²¹⁸ patent infringement cases²¹⁹ and other technically complicated cases. We are, however, witnessing the increased use of Federal Rule of Evidence 706 witnesses in the bankruptcy context, for reasons we will address below.

A 1998 decision by a senior federal district judge denied an indigent plaintiff's motion for a court-appointed expert witness; that court's reasoning reflected a formalist ideology against court-appointed witnesses.²²⁰ The context for the motion was the plaintiff's filing of a personal-injury action against the Litigation Trust established under the plan of reorganization for A. H. Robins Co. Inc. The indigent plaintiff needed the assistance of an expert witness to prove the causative link between the implanting of an intrauterine device (IUD) and her pelvic inflammatory disease (PID), but she could not afford to hire one. The Trust opposed her motion. In support of its decision, the court first observed that courts in the proper exercise of their discretion should only appoint an expert witness in "extraordinary circumstances," and in this case those extraordinary circumstances were absent. There was nothing, the court found, so "highly technical" about the disputed facts in this case that required "independent expert guidance." It further stated that any appointment by the court of an expert witness would necessarily constitute interference with and a lack of judicial respect for the adversarial process.²²¹ The court also noted that the cost for the expert witness would have to be borne by the Trust because of the indigence of the plaintiff. As the court noted, "judges have expressed reluctance to charge all of the costs to one party, unless the non-indigent party agrees to pay."²²² Here, the Trust objected to bearing the costs of the plaintiff's expert. The court in turn expressed its concern that the recoveries of the other claimants would be diminished by requiring the Trust to bear the cost of an expert witness.²²³ Under the circumstances, the court was "unwilling to place this financial burden on the defendant."²²⁴

As mentioned above, we have witnessed an increased use of Federal Rule of Evidence 706 experts in bankruptcy cases. In relatively small chapter 11 cases where a court, creditors or the U.S. Trustee is concerned about some aspects of a debtor in possession's pre- or post-petition behavior and would like a limited-scope investigation to be undertaken, courts have employed the Rule 706 expert as a device to retain an expert to conduct the limited investigation and prepare a report. Courts could also simply bypass the Rule 706 witness and appoint an examiner to undertake a substantially similar investigation. However, the Bankruptcy Code precludes the appointment of an examiner as a bankruptcy trustee in the same case.²²⁵ By using the Rule 706 device, the court may then appoint the expert as the bankruptcy trustee if the findings and conclusions of the court warrant such relief, thereby preserving estate assets if a different individual had to be appointed by the trustee. Although we recognize the inherent potential conflict in such situations, courts do have broad discretion in such matters, and the practice prevents the estate assets from being swamped by administrative expenses.

More recent decisions may reflect a trend toward greater judicial flexibility.²²⁶ Within the context of business bankruptcy cases, several of the traditional normative constraints against court-appointed experts under Federal Rule of Evidence 706 should have little or no bearing. The relevant constraints are...