Peter Nordberg. E-mail:
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Resolving Daubert Challenges
Special Masters and Court-Appointed Experts
Commentators are frequently very keen on the idea that district courts should employ court-appointed experts or special masters to assist in the resolution of complex scientific or technical issues. For whatever reasons, the district courts themselves seem much less keen on actually doing this, at least if the infrequency with which they employ such help is any guide. On the rare occasions when a district court does consider securing such assistance, litigants should be especially conscious of the potential role of court-appointed experts or special masters in the Rule 56/Daubert setting.
The duties of court-appointed experts are governed by Fed. R. Evid. 706. The key point to notice is that in the contemplation of Rule 706, court-appointed experts are witnesses, not judicial officers. What is envisaged, in the text of Rule 706, is that court-appointed experts will develop their own opinions, through their own investigations and methods, and testify at trial in addition to the parties' own experts. When they serve in this testimonial role, the opinions of Rule 706 experts are presumably subject to Daubert, like those of any other expert witness, and if admissible, their testimony may be available for use in connection with motions for summary judgment. Both court and counsel should be mindful, in this context, of any applicable ethical or procedural restrictions on communications with witnesses.
Rule 706 is also sometimes invoked in the appointment of experts to serve as nontestimonial technical advisors to the court -- although some authority holds that Rule 706 is inapplicable to such appointments. Counsel, in any event, should be wary of orders assigning Rule 706 experts to duties that may shade imperceptibly into the role of a magistrate or special master. The dangers here are legion, but two deserve specific discussion. First, to appointees who are themselves practicing scientists, the standards of review for Daubert and Rule 56 motions may seem inscrutable and artificial, and if such appointees are asked to recommend dispositions on such motions, they may feel inclined, by training and temperament, to determine which side has the better of the factual dispute on the scientific merits. That may be fine with litigants who expect the appointee to take their side, but it represents a potential encroachment on the jury's function. There is a cognate risk of encroachment on the judicial function, if the appointees busy themselves with determining whether genuine disputes of material fact exist (or whether Daubert's reliability criteria are satisfied).
Second, appointees from scientific backgrounds may not be sensitive to the problems associated with ex parte communications and judicial evidence-gathering under our adversary system. By professional instinct, they will often want to acquire their own data, perform their own analyses, and confer with other interested investigators (e.g., the parties' own experts). These all may be proper activities for a testimonial witness, but they become questionable when undertaken by quasi-judicial agents. Unless great care is taken to spell out the rules of engagement, a Rule 706 expert acting as a judicial advisor can create a procedural morass from which satisfactory escape is all but impossible.
Some of these same considerations apply to special masters appointed under Fed. R. Civ. P. 53, but Rule 53 at least includes various explicit procedural safeguards. Because Rule 53 incorporates an admonition that references to special masters should be the exception and not the rule, judges sometimes hesitate to invoke it, preferring to rely instead on notions of their "inherent authority." But if the appointee's role is essentially that of a special master, whether de jure or de facto, there are good arguments that Rule 53's procedural guidance should at least inform the process. Cf. TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360 (Fed. Cir. 2002).