Should the Federal rules of bankruptcy procedure be amended to expressly authorize United States district and bankruptcy courts to appoint a special master in an appropriate...

University of Memphis Law Review, The, Winter 2001 by Clift, R Spencer III

The United States Supreme Court has invalidated and condemned the appointment of a special master when the circumstances and facts of the civil actions fail to merit the need for such an appointment.20 In La Buy v. Howes Leather Co., the Supreme Court held that congested dockets, complex civil actions, and lengthy trials failed to justify the appointment of a special master.21 Of course, courts should not use a special master to abdicate judicial responsibilities; exceptional circumstances must exist in an appropriate civil action.

A better understanding of the "exceptional conditions" requirement is exemplified by the following case summaries:

* Burlington Northern Railroad Co. v. Department of Revenue22 - The court failed to find exceptional circumstances to support a Rule 53 reference to a special master where the reference was "in the interest of judicial economy" and the master's reported recommendations were affirmed in a one sentence order.

* In re Agent Orange Product Liability Litigation23 - The court allowed the appointment of a special master pursuant to Rule 53 based upon the fact that the information sought in discovery was scientific, highly technical, and complex in nature.

* Caldwell Industries, Inc. v. New York Hospital-Cornell Medical Center24 - The court refused to allow for the appointment of a special master pursuant to Rule 53 where counsel for the litigants was deemed capable of explaining difficult medical and scientific materials and theories to an audience unfamiliar with the subjects.

* Mobil Oil Corp. v. Altech Industries, Inc.25 - The court found exceptional conditions existed and authorized the appointment of a special master pursuant to Rule 53 in order to supervise discovery due to conflicting factual evidence, the anticipated addition of new parties by the defendants, and the high volume of documentary evidence.

* U.S. v. Microsoft Corp.26 - The court relied on La Buy in refusing to appoint a special master pursuant to Rule 53 stating that there was no apparent need for an expert to interpret the "plain English" of a consent decree drafted by the parties and failed to see the technological complexities in this particular circumstance.27

Accordingly, the judicial definition of "exceptional circumstances" under Rule 53(b) seems to call for the appointment of a special master in complex, resource-exhausting civil actions such as mass tort cases (e.g., asbestos, agent orange, or DDT cases), massive commercial litigation, or remedial decrees rendered to formulate institutional change.28

Such complex issues also may arise in certain types of bankruptcy cases and proceedings, yet the plain text of Rule 9031 and its accompanying Advisory Committee note expressly prohibit the courts - both United States district and bankruptcy - from appointing a special master under any circumstance. Specifically, Rule 9031 and its accompanying Advisory Committee note, read collectively, provide that Rule 53 of the Federal Rules of Civil Procedure does not apply in cases and proceedings under the Code.29