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28 U.S.C. 1915 makes no provision for a district court to either pay or waive fees for an expert witness. We cannot fault the court for not exercising a power it did not possess. Because the court has no authority to do so under 1915, it did not err in refusing to appoint an expert witness to help create a fact issue.

In appropriate circumstances, however, a court may appoint an expert under Fed.R.Evid. 706. The expert witness must either be agreed upon by the parties or selected by the court. Compensation is by the parties in such proportion as the court directs.

To qualify as an expert, a witness's testimony must rest on a reliable foundation and be relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands. This affidavit satisfies none of the indicia of reliability outlined in the Supreme Court's Daubert decision.

Because he possessed no personal knowledge of plaintiff's mental condition, his affidavit does not satisfy Rule 701. His general assertions based on his own experience and admission that each experience varies "depending on the person's tolerance and method of treatment" would not be helpful resolving if plaintiff was of unsound mind.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 95-40351

Dec. 27, 1995

Leopold PEDRAZA, Plaintiff-Appellant,
v.
Richard JONES et al, Defendants-Appellees.

Appeal from the U.S. District Court for the S. District of Texas.
Before POLITZ, Chief Judge, DAVIS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Leopold Pedraza appeals from a district court order granting summary judgment in favor of defendants on the ground that his claims were time-barred. Pedraza argues that, 1. an expert witness should have been appointed to help him prepare his case and, 2. that the district court erred in striking his affidavits. Finding no error, we affirm.

BACKGROUND

Pedraza filed a pro se 42 U.S.C. 1983 claim in forma pauperis, alleging that the defendants, officials in the Victoria Texas Police Dept., had denied him medical treatment for heroin withdrawal despite his repeated requests. The district court dismissed the claim because it was not filed within the Texas two-year statute of limitations.

This court subsequently vacated and remanded for determination of whether Pedraza's mental condition tolled the statute of limitations so as to allow his claim. Pedraza argued that he was of unsound mind from 7/86 to 10/87 as a result of heroin withdrawal.

The defendants filed a motion for summary judgment, containing the affidavit of their expert witness, Dr. Robert Lyman, a psychiatrist with extensive training in narcotic use and withdrawal. He stated that it's impossible to be impaired physically or mentally due to heroin withdrawal for five months or longer. [fn.2]

Pedraza filed two motions for appointment of an expert witness on heroin use and withdrawal, which the district court denied:

Plaintiff seeks assistance from a court-appointed expert on the ground that he cannot overcome the Defendants' expert without an expert of his own. While the court is cognizant of Plaintiff's plight, it is not in a position to appoint an expert. The in forma pauperis ("IFP") statute does not require or authorize the court to subsidize litigation by paying expert fees or other costs that IFP litigants may incur, such as depositions, duplication, exhibits, or travel. As a general matter, IFP litigants must hire their own experts.

Pedraza filed a response to the summary judgment motion supported by affidavits from himself and Antonio Marquez, which stated that heroin withdrawal could cause a person to be of unsound mind. The district court struck the affidavits and granted summary judgment for the defendants on the ground that Pedraza had failed to raise a genuine issue of material fact.

DISCUSSION

A. DISTRICT COURT'S FAILURE TO APPOINT AN EXPERT WITNESS

Pedraza argues that the district court erred in refusing to appoint an expert witness because, without the assistance of an expert witness, indigent prison inmates cannot raise these types of claims. He asserts that the 5th Circuit has awarded expert witness fees in many cases in recognition of counsel's need for experts' assistance. See Copper Liquor v. Adolph Coors, 684 F.2d 1087 (5th Cir.'82); Berry v. McLemore, 670 F.2d 30 (5th Cir.'82); Jones v. Diamond, 636 F.2d 1364 (5th Cir.)(en banc).[fn.3]

This Court has not addressed the issue of whether expert witnesses can be appointed to assist a plaintiff under the in forma pauperis statute, 28 U.S.C. 1915. The Supreme Court has held that "expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress." U.S. v. MacCollom, 426 U.S.317 ('76). The plain language of 1915 does not provide for the appointment of expert witnesses to aid an indigent litigant.

Boring v. Kozakiewicz, 833 F.2d 468 (3rd Cir.'87), held that 1915 makes no provision for a district court to either pay or waive fees for an expert witness. It concluded that "in these circumstances we cannot fault the district court for not exercising a power it did not possess." Id.[fn.4] We agree. Because the district court has no authority to appoint an expert witness under 1915, it did not err in refusing to appoint one to help Pedraza create a fact issue concerning whether heroin withdrawal can cause an unsound mind.[fn.5]

B. STRIKING OF THE AFFIDAVITS

Pedraza contends the district court erred in striking the affidavits of Pedraza and Antonio Marquez. He argues that Marquez's was admissible either as expert testimony or lay opinion and that his own affidavit qualified as lay opinion. A district court's decision to strike either expert or lay opinion testimony is subject to review under an abuse of discretion standard.

Under Fed.R.Evid. 702, a witness may be qualified as an expert by knowledge, skill, experience, training, or education. See Lavespere v. Niagara, 910 F.2d 167 (5th Cir.'90). Pedraza asserts that Marquez is an expert on heroin withdrawals because of 30-years experience as a heroin addict.

To qualify as an expert, the witness's testimony must "both rest on a reliable foundation and [be] relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands." Daubert v. Merrell Dow, 113 S.Ct.2786 ('93). Marquez's affidavit satisfies none of the indicia of reliability outlined in Daubert. The district court did not abuse its discretion in refusing to consider the affidavit as expert testimony.

Pedraza also argues that both affidavits are admissible as lay opinion under Rule 701, which provides that a lay witness may testify in the form of opinions or inferences only when they are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Because Marquez possessed no personal knowledge of Pedraza's mental condition, his affidavit does not satisfy the requirements of Rule 701. The general assertions he makes based on his own experience and his admission that each individual's experience varies "depending on the person's tolerance and method of treatment for recovery" would not be helpful in resolving whether Pedraza was of unsound mind. Pedraza's affidavit similarly fails because he makes only conclusory statements as to why the heroin withdrawal caused him to be of unsound mind. We conclude the district court did not abuse its discretion.

CONCLUSION

For the forgoing reasons, the order of the district court granting summary judgment is affirmed.

FOOTNOTES

2. Because limitations ran on 6/12/88 and Pedraza did not file his suit until 11/21/88, five months is the minimum amount of time that he must have been impaired in order to bring his claim within the limitations period.

3. These cases were subsequently overruled to the extent that they allowed recovery of expert fees in excess of the amount specified by 28 U.S.C.1821. Int'l Woodworkers. v. Champion, 790 F.2d 1174 (5th Cir.'86)(en banc); Crawford Fitting v. J.T. Gibbons, 482 U.S.437 ('87). The cases involved situations where expert witness fees were awarded after plaintiff prevailed in a civil rights suit. See 42 U.S.C. 1988(b) (allowing for the recovery of atty fees, which many courts found included expert fees when the expert was helpful to determination of the issues).

4. Although 1915(c) provides that "[w]itnesses shall attend as in other cases," the Circuit Courts that have addressed the issue of court payment for non-expert witness fees, such as attendance and mileage, have consistently held that federal courts are not authorized to waive or pay witness fees on behalf of an IFP litigant. See Malik v. Lavalley, 994 F.2d 90 (2nd Cir.'93); Tedder v. Odel, 890 F.2d 210 (9th Cir.'89); McNeil v. Lowney, 831 F.2d 1368 (7th Cir.'87); Cookish v. Cunningham, 787 F.2d 1 (1st Cir.'86); U.S. Marshals v. Means, 741 F.2d 1053 (8th Cir.'84); Johnson v. Hubbard, 698 F.2d 286 (6th Cir.); see also Hodge v. Prince, 730 F.Supp.747 (N.D.Tx.'90), aff'd, 923 F.2d 853 (5th Cir.'91)(mem.).

5. The court apparently believed that 1915 was the sole source of authority to appoint an expert for an indigent. In appropriate circumstances, however, a court may appoint an expert under Rule 706. The expert must either be agreed upon by the parties or selected by the court. Compensation of the expert is by the parties "in such proportion and at such time as the court directs." Rule 706(b). A few circuits have allowed appointment even when one party was indigent and unable to bear a portion of the costs. See McKinney v. Anderson, 924 F.2d 1500 (9th Cir.'91); Webster v. Sowders, 846 F.2d 1032 (6th Cir.'88).

Pedraza made no showing that he attempted to procure an expert, never submitted medical or psychological records regarding his mental condition, never requested the appointment of an expert pursuant to Rule 706, and requested an appointment only for his own benefit. Under these circumstances, Rule 706 is not applicable.

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