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Reilly v. United States

United States Court of Appeals, First Circuit
863 F.2d 149 (1988)
ELI5:

Rule of Law:

A federal district court has inherent authority to appoint a non-testifying technical advisor to assist in understanding complex issues, and this power is not governed by the procedural requirements of Federal Rule of Evidence 706, which applies only to expert witnesses. A party waives its right to object to the procedural aspects of such an appointment if it fails to raise a timely objection.


Facts:

  • On December 11, 1984, Donna Reilly was admitted to Newport Naval Hospital, a government facility, while in labor.
  • An electronic monitor indicated a dramatic deceleration in the fetal heart rate, signaling that the baby, Heather, was in danger of asphyxiation.
  • The obstetrician did not perform an immediate caesarean section, instead removing the monitor and proceeding with a vaginal delivery.
  • The delayed delivery required the use of a vacuum/suction instrument on Heather's head.
  • As a direct result of the doctor's negligence, Heather Reilly was born with severe and irremediable brain damage.
  • The injuries left Heather unable to walk, talk, feed, or care for herself in any way, and rendered her almost completely blind.

Procedural Posture:

  • Peter and Donna Reilly filed a $10,000,000 administrative claim with the Navy on behalf of their daughter, Heather.
  • After the claim was not resolved within six months, the Reillys sued the United States in the U.S. District Court for the District of Rhode Island under the Federal Tort Claims Act (FTCA).
  • During the bench trial on damages (liability was conceded), the district judge appointed an economist as a technical advisor to assist in calculating the award.
  • The district court awarded the Reillys a total of $11,037,964 in damages.
  • The United States (defendant) filed a motion for a new trial, arguing that the appointment of the technical advisor was improper and the damage award was excessive.
  • The district court denied the motion for a new trial.
  • The United States (defendant-appellant) appealed the judgment to the U.S. Court of Appeals for the First Circuit.

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Issue:

Does Federal Rule of Evidence 706, which governs the appointment of expert witnesses, also govern a district court's inherent authority to appoint a non-testifying technical advisor?


Opinions:

Majority - Selya, Circuit Judge

No. Federal Rule of Evidence 706 applies only to court-appointed expert witnesses who provide evidence, not to non-testifying technical advisors who merely assist the judge in understanding complex material already in the record. The court possesses a separate, inherent power to appoint a technical advisor, a power not subsumed by Rule 706. The rule's plain language refers to 'expert witnesses,' and its procedural requirements, such as depositions and cross-examination, are ill-suited for a non-evidentiary advisor whose role is to educate the judge, not to contribute new facts. The court also held that the government waived any objection to the lack of procedural safeguards surrounding the appointment, such as identifying the advisor or providing written instructions, by knowingly acquiescing and failing to raise these concerns until after receiving an unfavorable verdict.



Analysis:

This decision clarifies the important distinction between a court-appointed expert witness under FRE 706 and a non-testifying technical advisor appointed under the court's inherent authority. It affirms that judges have a valuable tool to manage exceptionally complex cases, particularly those involving esoteric economic or scientific calculations, without being strictly bound by the procedural formalities of Rule 706. However, the ruling also serves as a strong caution to litigants that they must object promptly to procedural irregularities or risk waiving their right to challenge them on appeal. This precedent reinforces the court's case management powers while emphasizing the 'use it or lose it' principle for procedural objections.

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