587
Using Court-Appointed Experts
The Honorable Timothy Hillman
*Good Morning. Following Professor Park with Federal Rule 7061 is like
following Drew Carey with a great business meeting. I will do my best. I wanted to speak with you about something I think is very important, in light of all the scientific information that we are being asked as courts to digest. That is, consideration of courts and counsel in using Federal Rule 706,2 which allows for court-appointed experts. At the risk of being very
dry, I want to speak a little bit about the mechanics of Rule 706.3 I also
want to talk about some practical uses of the rule, as well as some in-stances where I have considered its possible uses, although I have not per-sonally used it. But, frankly, it's coming, and it's going to happen sooner, rather than later.
The general authority for this Rule has long-standing effect; Professor McCormack traces it back to the 14th Century. As long ago as 1962, how-ever, our federal courts said that the court’s discretionary appointment of an impartial expert, in this case, a medical expert, is an equitable and for-ward-looking technique for promoting the fair trial of a lawsuit. It is now well accepted that the trial judge is not a mere umpire at the trial. Indeed, there may be circumstances in which he or she may have a duty to seek impartial assistance in order to enlighten the jury and themselves, because the issues have been confused by partisan presentation.
The courts have moved forward since 1962. The mechanics of Rule 7064 tell a lot about the ability of the court to use it, and the ability of
counsel to recommend it to the court. First of all, the court may have its own motion, along with a motion of any party, to enter an order to show cause for why an expert should not be appointed.5 The court may ask for
* Judge Hillman has been a Judge of the Massachusetts Superior Court in Worcester since 1998. From 1991 to 1998, he was an Associate Justice and Presid-ing Justice in the Gardner District Court and the PresidPresid-ing Justice in the Worcester District Court. He has prior experience in private practice, the Worcester County District Attorney’s Office, and as Town Counsel and City Solicitor. Judge Hillman is a 1973 graduate of Suffolk University Law School. He received his bachelor’s degree from Coe College in 1970. Judge Hillman currently teaches Law & Psy-chiatry at the Massachusetts School of Law.
1. FED.R.EVID.706.
2. Id.
3. Id.
4. Id.
588 NEW ENGLAND LAW REVIEW [Vol. 36:3 nominations.6 More importantly, the court may ask for a limitation on the
scope of the expert's particular ability, or for a particular focus on the areas under which the court or the finders of fact need enlightenment. The Rule also provides that the court must inform the expert and the parties, in writ-ing, of the scope of their duties. Of course, this writing must be filed with the clerk of the court.7 This process of narrowing down, shows the finders
of fact what the court specifically wants. Is it judicial touring? Does it do anything for the jury? Is it some sort of camp order, or something along those lines? A witness can be deposed by either party and can be called by either party.8 A neat little part of Rule 706 says, when the rule is raised by
either party, the expert witness may be cross-examined.9 In other words,
the expert being called for an adverse party, under the rule, may be cross-examined by different techniques. One of the problems with this practice is addressed within the rule in as clear a method as possible. First, court-appointed experts are paid from funds provided by law in criminal cases, or in civil cases where somebody invokes a privilege.10 In civil cases, you
have to wait to see what constitutes a privilege, and you may want to get a court-appointed expert if there are funds available for indigents that may be used. In civil cases, the cost of the expert is as the court directs, there-after, designated as cost. The court may tell the finder of fact that the per-son is an expert. For those of you who practice in Massachusetts, the Mas-sachusetts Rule of Criminal Procedure 41,11 allows for the appointment of interpreters. It also puts the words "or expert" in the rule.12 There are no decided cases on it to date. When mental health competency issues exist, the court has a responsibility regarding these issues, although this is not spelled out in Rule 41.13 This is when court-appointed experts come into
play, even though we do not call them that. For those of you who practice in Massachusetts, there is civil authority for such appointments. In basic cases, the Superior Court judges have needed to buy supplies, such as tape recorders. This example of the overall superintendent's powers of the court is somehow dovetailed in the Rule 70614 analysis. There is no
Mas-sachusetts ruling on Rule 706,15 however, its power is present, apparent,
and I see no problem with it.
6. Id. 7. Id. 8. Id. 9. FED.R.EVID.706(a). 10. FED.R.EVID.706(b). 11. MASS. R. CRIM.P.41. 12. Id. 13. Id. 14. FED.R.EVID.706. 15. Id.
2002] COURT-APPOINTED EXPERTS 589 Rule 706 has many uses.16 The use of this rule that bears the most scru-tiny, and the greatest potential for use, is the use of court-appointed experts as technical advisors to the court.17 One example that demonstrates the many potential uses of Rule 70618 deals with a particular patent selling issue. In Worcester, there is a bio-medical center. As a result, there are many bio-medical cases that arise. I currently have a dispute before me over a settlement agreement on a nuclear transferred-derived cell. I have no idea what a nuclear transferred-derived cell is. Frankly, the issue is actually over the settlement agreement. At some point, however, I told the court that I am going to have to learn what a nuclear transferred-derived cell is. I think under certain appropriate circumstances, I have the power to appoint an expert to explain what it is, and use the explanation in appli-cation to the settlement agreement. Another use of a court appointed ex-pert is as a judicial tutor on esoteric subjects, which dovetails with the last use of Rule 706.19 Finally, the last use of the rule, with regard to court
appointed experts is with respect to witnesses.20 When using the rule in
application to witnesses, you have to be careful.
We recently started trying these applications of Rule 70621 in Worcester,
which are purported to be the first cases in the United States involving such uses of the Rule. I do not know if I have any authority for this, other than what the lawyers have told me, but we have a number of cases from younger people who were hemophiliacs who were transfused in the early 1980s and mid-1970s with HIV-infected blood. Those cases are now com-ing forward. The issues before the court are ones of informed consent, and when the companies knew or should have known about the effect of the blood. In addition, the lawyers were pretty good, and they did not just tell me the authority of Rule 706,22 but on their own, they basically designated
the plaintiff's expert as the historical expert to explain the progression of the disease. The expert went in, and as awful as it was, it was helpful to the finder of fact, and it laid a foundation. Then, we were able to go back and argue about who knew what, when and what they did. As a founda-tion, it was very helpful. I do not know whether the plaintiff and the de-fendant shared the expense of this expert, but they both agreed on having the historical expert, and they both had their points that they wanted to get from the expert. As a result, there was very little cross-examination. It was mostly direct examination and it was very helpful.
16. Id. 17. FED.R.EVID.706(a). 18. Id. 19. FED.R.EVID.706. 20. Id. 21. Id. 22. Id.
590 NEW ENGLAND LAW REVIEW [Vol. 36:3 The problems: Problems are fairly common with Rule 70623 and court-
appointed experts, which rely on the common law tradition against courts getting involved in the fact-finding process. This way of thinking is tradi-tional and long-standing. It is ingrained in the culture. But, times have changed. In fact, when Judge Lauriat is here this afternoon, I hope he gets into some innovations that he and the Superior Court have been doing. I use the word "innovations" because I am almost ashamed to tell you that they are only recently allowing jurors to take notes and ask questions dur-ing trial. These are considered innovations in Massachusetts. The impor-tance of these new innovations like court-appointed experts and juror note-taking is that we are now getting more and more involved in the fact-finding process, in order to make sure that the jury is searching for and reaching the truth. As mundane as that may sound, this is what they are supposed to be doing. Jurors taking notes and asking questions is inevita-ble, if we want jurors to be involved in this search for the truth. Judge Lauriat has been a real pioneer, and I followed along in his lead. Our Su-preme Court in Massachusetts has allowed juror questions, even in an as-sault and battery with a dangerous weapon case, and there were nearly forty questions asked.24
There are two problems. The first problem is the legitimate fear of ex-parte communications. The second problem is the expense. It is obviously expensive to ask an indigent plaintiff, or some plaintiff in a medical mal-practice case or a criminal defendant, who does not have many resources, to share in the expenses. Let me give you some brief examples. We re-cently had an awful mess, involving a junkyard out in Gardner and the issue over cleaning it up. The defendant was clearing in violation of a zoning ordinance. The junkyard clearly needed to be cleaned up, and I considered appointing a court-appointed expert to help the Court in decid-ing what goes to the dump, what is good, what needs to go where and as-sessing the cost. All of this information was successfully determined through the use of the expert.
Court-appointed experts and asbestos litigation seem to be common too. Judge Lobel has a session over in Middlesex devoted primarily to this type of litigation, in which court appointed experts prove to be key players. Complex medical cases also seem to lend themselves to the issue of court-appointed experts. One very well known and lengthy litigation involved breast implantations, in which the judge who consolidated and tried the cases, used a detective used him well, and with approval of the federal courts. Then, of course, there is the novel, scientific evidence that
23. Id.
24. See Commonwealth v. Burgos, 739 N.E.2d 717 (Table) Mass. App.
2002] COURT-APPOINTED EXPERTS 591 sor Park talked about. For example, the Genome Project in Worcester dealing with bio-meds, and all of the scientific projects that go on in this Commonwealth are perfect for using experts under Rule 706.25 I strongly urge you to consider this rule when practicing as attorneys. There is plenty of foundation for it. I know I am going to consider using it, so you can beat me to the punch and get brownie points if you suggest it yourself be-fore the court. Let me just end with a comment from the Federal Rules on Rule 70626: The practice of shopping for experts, the venality of some
experts, and the reluctance of many reputable experts to involve them-selves in litigation, have been matters of deep concern. Though the con-tention is made that the court appointed expert acquire an aura of infallibil-ity to which they are not entitled, the trend is increasingly to provide for their use. While experience indicates that actual appointment is a rela-tively infrequent occurrence, the assumption may be made that the avail-ability of the procedure in itself decreases the need for resorting to it. The ever-present possibility that the judge may appoint an expert in a given case must inevitably exert a sobering effect on the expert witness of a party and upon the person utilizing his services.27
Thank you.
25. FED.R.EVID.706.
26. Id.
