In the

United States Court of Appeals

For the Seventh Circuit

No. 21-2107

STEVE STEVENSON,

Plaintiff-Appellant,

v.

WINDMOELLER & HOELSCHER CORP.,

Defendant-Appellee.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:19-cv-00052 — John Robert Blakey, Judge.

ARGUED FEBRUARY 17, 2022 — DECIDED JULY 7, 2022

Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges.

ROVNER, Circuit Judge. Plaintiff Steve Stevenson appeals the

district court’s decision in this product-liability action not to

appoint a neutral expert pursuant to Federal Rule of Evidence

706. Finding no abuse of discretion in the court’s decision, we

affirm.
2 No. 21-2107

I.

Stevenson was injured in the course of his employment

with a commercial printing company. He was moving a

portable ladder in order to clean a component of a Primaflex

printing press, manufactured by defendant Windmoeller &

Hoelscher Corporation, that prints flexible packaging for

consumer goods such as bread and potato chips. The printing

press is a large machine measuring some 53 feet long and 17

feet high. The ladder Stevenson was handling was one of two

supplied with the machine, and its use was necessary in order

to reach an otherwise out-of-reach printing plate on the upper

level of the machine’s interior. As Stevenson moved the ladder,

it caught on the 10-foot cable of an operator pendant attached

to the machine, which caused him to twist and injure his left

shoulder and back. He later had surgery as a result of the

injury.

Stevenson filed this product-liability suit against Windmoeller on theories of negligence and strict liability, arguing

that the design of the printing press—including the placement

of the 10-foot cable near the access door used to service the

interior components of the machine—was defective, in that it

foreseeably gave rise to the very scenario that injured Stevenson: the ladder catching on the cable. 

Shortly after the close of fact discovery, Stevenson’s courtappointed counsel1

 filed a motion asking the court to appoint

1

 Stevenson’s original counsel withdrew shortly after this suit was removed

from state to federal court. Stevenson proceeded pro se for approximately

(continued...)
No. 21-2107 3

an engineering expert2

 pursuant to Fed. R. Evid. 706, which in

relevant part provides:

On a party’s motion or on its own, the court may

order the parties to show cause why expert witnesses should not be appointed and may ask the

parties to submit nominations. The court may

appoint any expert that the parties agree on and any

of its own choosing. But the court may only appoint

someone who consents to act.

Rule 706(a). This rule codifies the inherent power of a trial

judge to appoint an expert who will function as a neutral

expert serving the court rather than any particular party. See 29

Charles A. Wright & Victor J. Gold, FEDERAL PRAC. & PROC.

§§ 6301–02 (1997). The rule also specifies that in a civil case

(other than one involving just compensation under the Fifth

Amendment), the expert’s compensation is payable “by the

parties in the proportion and at the time that the court

directs—and the compensation is then charged like other

costs.” Rule 706(c)(2). Stevenson’s position was that the

appointment of an engineering expert was necessary in order

to assist the jury in understanding the manufacturing and

product evidence that the parties would present, given that the

issues raised in the case (including the design and functioning

of the printing machine, the dangers presented, the feasibility

1

 (...continued)

10 months, until the district court appointed counsel to represent him.

2

 Stevenson also asked for the appointment of a medical expert, but he has

abandoned that request on appeal.
4 No. 21-2107

of alternative designs, and so on) were beyond the knowledge

and understanding of the ordinary layperson. Stevenson

added that he lacked the resources to employ his own expert,

and he asked the court to tax the cost of engaging such an

expert to the defendants. In his reply brief, in response to

Windmoeller’s argument that Stevenson was really seeking the

appointment of an expert to advocate for his own position,

Stevenson clarified that he was seeking the appointment of a

neutral expert. 

The district court denied this motion without prejudice and

set a deadline for the submission of Windmoeller’s anticipated

motion for summary judgment.

After Windmoeller filed its summary judgment motion,

Stevenson renewed his motion for the appointment of an

expert pursuant to Rule 706, again anticipating the need for

expert opinion testimony and emphasizing that he was asking

for the appointment of a neutral expert. The court once again

denied the motion, reasoning that what Stevenson was really

asking for was the appointment of an expert to support his

own case, rather than a neutral expert to aid the court. The

court added that under the Northern District of Illinois’ Local

Rule 83.40, Stevenson was eligible to seek reimbursement for

reasonable expert witness fees and expenses. The court added

that “[i]f the Court later determines that it really does need a

neutral expert to help evaluate the evidence, it will revisit the

issue.” The court subsequently entered an order giving

Stevenson just over one month to respond to the motion for

summary judgment. 
No. 21-2107 5

Stevenson contends that the month that the court allowed

him to respond to the summary judgment motion was insufficient to hire his own expert, allow the defense additional time

for discovery related to that expert, and then for Stevenson to

file his response to the summary judgment motion. He instead

filed his summary judgment response without the support of

any expert opinion.

The district court granted summary judgment in favor of

Windmoeller. The court reasoned in the first instance that

Stevenson had no expert opinion to support his theory of the

case as to the condition and design of the printing machine,

which was “a specialized piece of industrial equipment that the

vast majority of the population has never seen or used,” and

thus was beyond the knowledge and understanding of the

ordinary layperson. Without the support of an expert to

identify any respect in which Windmoeller’s printing press was

defective, thereby rendering it unreasonably dangerous and

the proximate cause of the plaintiff’s injuries, the court concluded that the factfinder could not find in favor of the

plaintiff. See, e.g., Clark v. River Metals Recycling, LLC, 929 F.3d

434, 440 (7th Cir. 2019) (noting that Illinois courts recognize

that product liability actions frequently involve specialized

knowledge or expertise outside of a layperson’s knowledge

and so may require expert testimony). The court went on to

hold that apart from the lack of expert testimony, the plaintiff’s

claims independently failed for lack of other evidence to create

a triable issue of fact. 

Stevenson appeals, arguing that the district court abused its

discretion in denying his Rule 706 motion for the appointment

of a neutral expert and that the court’s refusal to appoint such
6 No. 21-2107

an expert was the determinative factor in the failure of his case

at summary judgment.

II.

In view of the permissive language of Rule 706, we review

the district court’s decision declining to appoint an expert

solely for abuse of discretion. Martin v. Redden, 34 F.4th 564,

569 (7th Cir. 2022) (per curiam); Giles v. Godinez, 914 F.3d 1040,

1052 (7th Cir. 2019); Ledford v. Sullivan, 105 F.3d 354, 358 (7th

Cir. 1997).

The purpose of a court-appointed expert is to assist the

court in evaluating the evidence or deciding a fact in issue.

Giles, 914 F.3d at 1053 (citing Ledford, 105 F.3d at 358–59). The

court may, for example, invoke the aid of an appointed expert

“to resolve the clash of ... warring party experts,” Planned

Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 799 (7th Cir.

2013); see also In Re High Fructose Corn Syrup Antitrust Litig., 295

F.3d 651, 665 (7th Cir. 2002); Students of Cal. Sch. for the Blind v.

Honig, 736 F.2d 538, 548–49 (9th Cir. 1984), cert. granted &

j. vacated on other grounds, 471 U.S. 148, 105 S. Ct. 1820 (1985);

Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957,

1000 (5th Cir. 1976), to help the court evaluate the admissibility

of a party’s proffered expert opinion, Gen. Elec. Co. v. Joiner, 522

U.S. 136, 148–50, 118 S. Ct. 512, 520–21 (1997) (Breyer, J.,

concurring), to address ambiguities, confusion, or contradictions within the parties’ opinion evidence, Walker v. Am. Home

Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.

1999), to supply an additional, independent viewpoint when

one party has, whether for lack of resources or another reason,

omitted to present expert opinion in support of its case,
No. 21-2107 7

resulting in an incomplete or inadequate exposition of the

issues, Joe S. Cecil & Thomas E. Willging, Court-Appointed

Experts: Defining the Role of Experts Appointed Under Federal Rule

of Evidence 706, at 14 (Fed. Judicial Ctr. 1993); 29 Wright & Gold

§ 6304, at 468, or to supply expert guidance that the parties

themselves have neglected to provide on points that are

material to the court’s decision, e.g., In re Walgreen Co. Stockholder Litig., 832 F.3d 718, 724 (7th Cir. 2016) (noting that

district court, in evaluating reasonableness of proposed

settlement of class action challenging sufficiency of notices

provided to shareholders regarding corporate merger, could

have appointed expert to address meaningfulness of supplemental disclosures provided for in settlement); Ortiz v. Martinez, 789 F.3d 722, 724 (7th Cir. 2015) (in international custody

dispute brought under Hague Convention, district court

appointed psychologist to evaluate children for signs of sexual

abuse as raised by respondent parent’s affirmative defenses);

Redman v. RadioShack Corp., 768 F.3d 622, 631 (7th Cir. 2014)

(noting that district court, in reviewing merits of proposed

“coupon settlement” of consumer class action, could have

appointed expert to address consumer response to coupons).

Although the rule permits a party to move for the appointment of an expert, the language of the rule envisions a neutral

expert (“[t]he court may appoint any expert that the parties

agree on and any of its own choosing”), and it is widely

understood that the job of a neutral, court-appointed expert is

to serve the interests of the court rather than those of any

party. See Martin, 34 F.4th at 569; Kennedy v. Huibregtse, 831

F.3d 441, 443 (7th Cir. 2016); Rowe v. Gibson, 798 F.3d 622, 632

(7th Cir. 2015); Van Hollen, 738 F.3d at 798–99; Jackson v. Pollion,
8 No. 21-2107

733 F.3d 786, 790 (7th Cir. 2013); DeKoven v. Plaza Assocs., 599

F.3d 578, 583 (7th Cir. 2010); High Fructose Corn Syrup Antitrust

Litig., 295 F.3d at 665; see also Hannah v. United States, 523 F.3d

597, 600 (5th Cir. 2008); Honig, 736 F.2d at 549.

Because the neutral expert envisioned by Rule 706 is one

who serves the court as opposed to a party, Stevenson’s effort

to demonstrate an abuse of discretion in the district court’s

decision not to appoint such an expert encounters a logical

obstacle from the outset. Stevenson would have to show, for

example, that the court’s own consideration of the evidence or

the issues presented was hampered by the lack of an independent expert to aid and guide the court in its evaluation of the

case. But Stevenson has not made any argument along these

lines, and indeed the record does not suggest to us that the

court had any difficulty in appreciating the nature of his claims

or in resolving the arguments presented in the briefing on

Windmoeller’s motion for summary judgment. Indeed, the

relevant point that the court made in granting the summary

judgment motion was that Stevenson’s case suffered from the

lack of partisan expert opinion to substantiate his claims, not

that the court’s evaluation was in any way hindered by the lack

of a neutral expert’s viewpoint.3

3

 Stevenson points out that Windmoeller itself did not argue, in seeking

summary judgment, that the support of an expert was required in order for

him to make a prima facie case of product defect. The district court

arguably ought to have given the parties notice and an opportunity to

respond before granting summary judgment on a ground not argued by the

movant. See Fed. R. Civ. P. 56(f); e.g., Firestone Fin. Corp. v. Meyer, 796 F.3d

822, 829 (7th Cir. 2015) (citing Williams v. City of Chicago, 733 F.3d 749, 755

(continued...)
No. 21-2107 9

Stevenson nonetheless postulates that a neutral expert

might have helped his case by supplying the court with an

independent point of view that could have potentially lent

support to Stevenson’s theory that the printing press was

defective. The key word here is “potentially.”

One can only guess as to the impact that a court-appointed

expert might have had on Stevenson’s own case. Stevenson

himself concedes that there is no way to know whether or not

a neutral expert would have supported his theory of recovery.

That alone makes it impossible for Stevenson to show that he

was prejudiced by the district court’s decision not to appoint

such an expert. Coupled with the fact that a neutral expert is

meant to assist the court rather than the parties, speculation

about whatever incidental benefit that expert might have lent

to Stevenson’s case gets him nowhere in a challenge to the

district court’s refusal to invoke its authority under Rule 706.

3

 (...continued)

(7th Cir. 2013)). But, of course, Stevenson himself had anticipated the need

for expert opinion in support of his case when he asked the court to appoint

an expert pursuant to Rule 706, so the district court’s rationale could not

have taken him entirely by surprise. Moreover, as framed by Stevenson’s

briefing, the issue presented in this appeal is not whether it was appropriate

in the abstract for the district court to grant summary judgment in Windmoeller’s favor for want of expert opinion supporting Stevenson’s theory

of the case. In other words, Stevenson does not quarrel with the notion that

the specialized knowledge of an expert was required. Rather, his argument

is that given the necessity of expert opinion to make his case, it was an

abuse of discretion for the district court to deny his Rule 706 requests and

unfair for the court to then rely on the absence of expert opinion as a basis

for entering summary judgment against him. 
10 No. 21-2107

Certainly a district court, confronted with a summary

judgment record that is either devoid of expert opinion

altogether or is limited to expert opinion on only one side of

the dispute, may exercise its discretion to appoint its own

expert as one way to address the gap or the imbalance in the

record, particularly if there are issues as to which the court

believes it would benefit from an independent viewpoint. See

29 Wright & Gold § 6302, at 452 (“Appointment of a court

expert ... may be justified where the parties entirely fail to

present expert testimony or only some parties present such

testimony, thus depriving the trier of fact of a balanced view of

the issues.”); § 6304, at 468 (“Th[e] judicial encroachment upon

adversary powers [exemplified by appointing a neutral expert]

is justified because it is a means of compensating for weaknesses in the adversary system that can undermine accurate

factfinding.”); e.g., Norwood v. Zhang, 2013 WL 5162202, at *6

(N.D. Ill. Sept. 13, 2013) (granting prisoner’s request for

appointment of expert pursuant to Rule 706 in case alleging

that health care providers committed malpractice and were

deliberately indifferent to his serious medical condition); but see

also Martin, 34 F.4th at 570 n.2 (noting that “caution is especially warranted” when party seeks appointment of expert

under Rule 706 to fill hole in its own case, and that court

should consider, inter alia, “whether appointing such an expert

may undermine the court’s neutrality”). But the court was

under no obligation to do so here, particularly when Stevenson

has been unable to identify any respect in which the court’s

own analysis was hampered by the lack of a neutral expert. 

In the end, only an advocate expert could have filled the

gap that the district court cited in Stevenson’s case, and there
No. 21-2107 11

were means available to Stevenson and his counsel to engage

such an expert. We can certainly accept as true Stevenson’s

representation that he lacked the resources to pay for an

expert—and his additional assertion that his court-appointed,

pro bono counsel should not have been required to advance

the costs of such an expert—but as the district court pointed

out, Stevenson could have asked the court to pre-authorize the

payment for such an expert from a district court fund under

Local Rule 83.40. In relevant part, the rule provides:

Any party for whom counsel has been recruited by

the Court pursuant to LR 83.36 and has filed an

appearance on behalf of the party shall bear expenses of the litigation to the extent reasonably

feasible in light of the party’s financial condition.

Such expenses shall include, but not be limited to

discovery expenses, subpoena and witness fees, and

transcript expenses. If the party is unable to pay the

expenses of litigation, recruited counsel may advance part or all of the payment of any such expenses without requiring that the party remain

ultimately liable for such expenses, except out of the

proceeds of any recovery. The assigned attorney or

firm is not required to advance the payment of such

expenses.

N.D. Ill. Local Rule 83.40(a). 

In turn, District Court Fund Regulation 4G, of the Regulations Governing the Prepayment and Reimbursement of

Expenses in Pro Bono Cases, expressly provides that “[r]easonable costs for expert services, other than interpreters, not
12 No. 21-2107

otherwise avoided, waived, or recoverable, may be reimbursed

from the District Court Fund ... .” By the terms of the local

rule, counsel has the option of either advancing the expense of

hiring an expert and then seeking reimbursement from the

court fund at a later date or seeking pre-payment of such an

expense. Rule 83.40(b). In his reply brief, Stevenson notes that,

given the likely cost of hiring an expert, prior court approval

of the expense surely would have been required. See District

Court Fund Regulations 3G, 4G. He is almost certainly correct

in that regard. But he does not explain why he could not have

obtained quotes from one or more prospective experts and

asked the district court to approve the cost in advance, so that

his counsel was not at risk of incurring substantial costs that

might not be reimbursed later. Given the option of employing

an expert at the expense of the district court fund, we cannot

see why Stevenson was not obliged to at least try to engage an

expert of his own and seek authorization for the expert to be

compensated from the district court fund. 

All of this would have taken time, of course, and Stevenson,

as we have acknowledged, suggests that the one month that

the district judge gave him to respond to Windmoeller’s

summary judgment motion was insufficient for this purpose.

But Stevenson could have asked the court for more time as

necessary. Likewise, to the extent Stevenson’s engagement of

an expert might have entitled the defense to take discovery

related to his expert’s opinions, there is no reason to think that

the district judge would not have extended discovery and the

summary judgment briefing schedule for that purpose.

Stevenson also complains that although the district judge,

in denying his Rule 706 motions, said that he would revisit the
No. 21-2107 13

need for a court-appointed expert as necessary in addressing

the motion for summary judgment, he ultimately did not do so

(at least explicitly). Indeed, the judge went on to grant Windmoeller’s summary judgment on the ground that Stevenson

needed an expert to support his case, without acknowledging

that the court had previously denied Stevenson’s request for

the appointment of an expert. Stevenson accuses the judge of

engaging in a sort of “gotcha” reasoning in this regard. But,

again, Stevenson is failing to appreciate the distinction between

a court-appointed, neutral expert and an advocate expert

engaged by a party to support his own case. Stevenson’s case

failed at summary judgment because he had no expert opinion

to back up his own claims. The case did not fail because the

district judge did not have the benefit of a neutral expert, who

as far as we know might have supported Windmoeller’s case

or neither party’s case, as opposed to Stevenson’s case. On

summary judgment, it was Stevenson’s burden, not the court’s,

to present evidence—including, as necessary, evidence in the

form of expert opinion—demonstrating the existence of a

dispute of material fact. The court did not have an obligation

under Rule 706 to appoint an expert to help Stevenson for that

purpose. See Hannah, 523 F.3d at 600. And, in view of the fact

that the court had already made this clear to Stevenson in its

prior order denying his second request for the appointment of

an expert, the court was not required to make the same point

yet again in resolving Windmoeller’s motion for summary

judgment.

We note that the district court, in granting Windmoeller’s

motion for summary judgment, found that even apart from

Stevenson’s lack of expert testimony to support his case,
14 No. 21-2107

Windmoeller was entitled to summary judgment on other

grounds. Stevenson argues on appeal that those additional

grounds cannot be separated from his own lack of expert

testimony. We can accept this assertion as true arguendo for

present purposes. Given that the court did not abuse its

discretion in refusing to appoint a neutral expert, there is no

need to consider whether the court properly could have

granted summary judgment on those other grounds.

Likewise, we do not need to reach any other arguments on

the merits of the parties’ respective cases, including Windmoeller’s theory as to the post-sale modification of its printing

machine.

III.

The district court did not abuse its discretion in rejecting

Stevenson’s requests that it appoint an independent expert

pursuant to Rule 706.

AFFIRMED