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9th Circuit's 1991 McKinney Opinion Ruling that Court Could and Should have Appointed an Expert to Assist Prisoner in his 2nd-Hand Smoke Suit

The court may on its own motion or on the motion of another party appoint an expert witness. The expert so appointed is entitled to reasonable compensation as the court may allow, and in a civil case the compensation is "paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs," unless funds have been provided by law to pay the compensation.

U.S. 9TH CIRCUIT COURT OF APPEALS
No. 89-16589.

McKINNEY v. ANDERSON
924 F.2d 1500 (9th Cir. 1991)

Submitted Nov. 6, 1990. Decided Feb. 1, 1991.

Appeal from the U.S. District Court for the District of Nevada.

Before BROWNING, PREGERSON, and TROTT, Circuit Judges.


PREGERSON, Circuit Judge:

William McKinney, a prisoner in Nevada State Prison in Carson City, filed a pro se civil rights complaint in U.S. District Court under 42 U.S.C. 1983. McKinney, a non-smoker, alleged that he is almost constantly exposed to secondary cigarette smoke, also known as environmental tobacco smoke (ETS). causing him nosebleeds, headaches, chest pains, and loss of energy. McKinney stated that the prison officials repeatedly denied his requests to be transferred to a single room or housed with a nonsmoker. fn.1

McKinney asserts two distinct 8th Amendment claims. and sought damages and injunctive relief to remedy the alleged violations of his constitutional rights. All proceedings in this action were conducted before a magistrate. fn.2

Both before and during trial, McKinney sought to litigate the degree of his exposure to ETS and the actual and potential effects of such exposure on his health. The magistrate, however, excluded evidence that did not relate to McKinney's current medical symptoms, including documentation of the potential health effects of exposure to ETS.

After McKinney presented his evidence to a jury, the defendants moved for a directed verdict on the ground that McKinney failed to produce any evidence to support his claim that the defendants were deliberately indifferent to his serious medical symptoms. The magistrate granted the motion. . .

On appeal, McKinney raises the following. . .: (3) that the magistrate erred in refusing to appoint an expert witness to testify about the health effects of exposure to ETS.

C. Should the Magistrate Have Appointed an Expert Witness?

Important to McKinney's case would be the testimony of an environmental toxicologist regarding the health effects of exposure to ETS. Because he was unable to find an expert who would testify without a fee, McKinney requested that the district court appoint an expert witness at government expense under R.706. The magistrate denied his requests.

Under R.706, the court may on its own motion or on the motion of another party appoint an expert witness. R.706(a). The expert so appointed is entitled to reasonable compensation as the court may allow, and in a civil case the compensation is "paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs," unless funds have been provided by law to pay the compensation. R.706(b).

The magistrate found that because no funds have been provided by law to pay the compensation of an expert witness in civil rights cases, any expert appointed by the court must be paid by the parties. The magistrate then ruled that no expert may be appointed in the present case because McKinney, who proceeded in forma pauperis, would be unable to pay his proportion of the fees. The magistrate interpreted Rule 706(b) as allowing court-appointed experts only when both sides are able to pay their respective shares.

We believe that the magistrate's ruling was based upon an unduly restrictive reading of the rule. As we noted in Students of Cal. School v. Honig, 736 F.2d 538 (9th Cir.'84), "R.706 . . . allows the court to assess the cost of the expert's compensation as it deems appropriate." We believe that the phrase "such proportion as the court directs," in an appropriate case, permits the district court to apportion all the cost to one side. Otherwise, we are faced with an inflexible rule that would prevent the district court from appointing an expert witness whenever one of the parties in an action is indigent, even when the expert would significantly help the court.

We hold that the district court does have the discretion to appoint an expert witness in this case and that McKinney is entitled to the benefit of the court's exercise of its discretion. Considering the complexity of the scientific evidence in the present case, we recommend that, on remand, the district court consider appointing an expert witness or witnesses who can provide the court with scientific information on the health effects of ETS and on the concentration levels of ETS in the Carson City prison. . .

CONCLUSION

We reverse and remand this claim for further equitable proceedings, including a trial, if necessary, with the possible assistance of an attorney and an expert witness. fn.34

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

FOOTNOTES

1. McKinney also named two cigarette manufacturers and a distributor of cigarettes sold in the prison. The companies were never served with the complaint and have not made an appearance in the action.

2. The parties consented to have a U.S. Magistrate conduct the trial and order the entry of a final judgment. Under 28 U.S.C. 636(c)(3), parties may appeal "directly to the appropriate U.S. court of appeals from the judgment of the magistrate in the same manner as an appeal from any other judgment of a district court."

34. Our decision to remand obviates the need to rule on whether the magistrate correctly granted the defendants' motion in limine.

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