(dissenting in part).
I dissent from so much of the opinion as holds that the trial judge acted without error in appointing at the very outset of the trial a physician of his own choice to examine the plaintiff Wayne Scott out of court and to testify to his findings, conclusions and prognosis at the trial without any prior report thereof to the parties.
My brothers say that “the appointment of an impartial medical expert by the court * * * is an equitable and forward-looking technique for promoting the fair trial of a lawsuit.” I agree that this is so when the appointment is safeguarded to insure the impartiality of the expert and to protect the parties from surprise. But that was not done here.
The desirability of the selection of unbiased experts by the judge is discussed by Wigmore in § 563 of his treatise. The preferred procedure is outlined in j[ (3) (C) of that section (3rd ed., Vol. II, p. 648). There Wigmore accepts as “the final solution” of the underlying problem the model uniform Act proposed in 1937 by the National Conference of Commissioners on Uniform State Laws after years of debate and study. Perusal of the Act which is set forth in § 563 (Vol. II, p. 651 et seq.) will show numerous vital safeguards provided by the Act not taken by the court below.
Thus §§ 2 and 4 of the model Act require that before making an appointment the judge shall give reasonable notice to the parties of the names of the experts proposed for appointment and shall appoint the experts agreed on by the parties. Here the notice on the very eve of trial was far less than reasonable: it was so short that an expert on whom the parties apparently could have agreed could not be obtained in time — an obstacle which could have been avoided by but a few days’ notice. The unreasonableness of notice on the eve of trial is further pointed up by the fact that at pre-trial three months earlier the trial judge had indicated no intention of him*933self appointing an expert or any need therefor. Yet the only reason given for an appointment at the eve of trial was that because the plaintiff Wayne was an infant the “Court has the very important duty to protect an infant’s rights” and “wanted to appoint a doctor to examine that infant as of today for the purpose of ascertaining the extent of his injuries, etc.” One may question whether a court is under a duty to appoint expert witnesses for infant plaintiffs represented by counsel: But even so, the duty could have been as well discharged under a more seasonable notice which would have given time for the parties to agree on an expert.
Section 6 of the model Act makes provision for written reports by the court’s experts to be filed and open to inspection by any party and later to be read by the witness in court. Here, appellants’ counsel was not advised of what the expert would say until he actually testified. This was after counsel had completed his cross-examination of Wayne’s mother on whose version of Wayne’s “history” the expert’s testimony was solely based. And of course at that stage it was too late to consult and perhaps call other psychiatrists.
Section 10 of the model Act provides that the compensation of the court’s expert, as approved by the court, may eventually be taxed as costs against the losing party. In the absence of enabling legislation or of provision for compensation by agreement between the parties, there is no authority for compelling a party to compensate the court’s expert. The party who calls an expert is generally the only available source of his compensation, except of course for the insignificant per diem of $4 allowed under 28 U.S.C.A. § 1821 and taxable under 28 U.S.C.A. § 1920. I think it would be a clear abuse of discretion for a judge to order a professional man, medical or engineering, to go to the labor of examining a patient or other subject-matter out of court and then testify as to his expert opinion without provision for compensation more nearly adequate than the meagre fee provided by 28 U.S.C.A. § 1821. Indeed, it would be unfair to expect physicians and scientists to serve as experts on that basis in cases in which the lawyers presumably have retainers carrying adequate compensation. Without adequate authorized compensation for court-appointed experts there is danger of some sub rosa arrangement for compensation by a party — a situation under which the court’s expert in fact would be no more unbiased than one called by a party.
It is true that the model Act above discussed has not been widely adopted— only in South Dakota and Vermont so far as my researches show. But the failure of an Act such as this with all its restrictive safeguards to achieve enactment, is scant reason for judges, at least in run-of-the-mill cases such as this, to arrogate to themselves unrestricted powers which under traditional trial procedure are reserved to counsel.
Any consideration of the desirability of court-appointed experts should not overlook the fact that in the medical field, as well as in other sciences, there are many areas in which the experts are divided into opposing schools of thought. Under the conventional trial technique, the opposing parties will each generally proffer experts favorable to his position thus leaving it to the trier to decide, with such aid as cross and redirect examination may afford, which view rests upon the more reliable base — a difficult task especially for a jury. On the other hand, a judge making an a priori appointment often unaware of the existence of opposing schools in the area may inadvertently appoint an expert who, by his professional and personal attitudes, is precommitted to a particular school and his views, with the accolade flowing from a judicial appointment, may well be decisive. Thus the outcome of unilateral judicial appointment may be not so much an improvement of justice as the fortuitous product of arbitrary — albeit well-intended — judicial action.
The procedure adopted here did not comply with that prescribed for crim*934inal cases by Fed.Rules Crim.Proc. rule 28. It was in violation of the spirit of Fed.Rules Civ.Proc. rule 38(b). Surely a party needs protection from surprise caused by a judge as much as that caused by his adversary. And I cannot understand my brothers’ reliance on Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919, which involved the power of a judge to appoint an auditor whose task it was to organize and report on independent evidence — not to contribute new evidence as does a witness.
I would reverse the judgment in favor of Wayne Scott, and remand. In all other respects, I concur.