In Arizona, a medical expert who had previously been disclosed as testifying expert could not be re-designated as consulting expert—with privileges and discovery protections—after the expert’s opinions had been disclosed.
In a recent case, the plaintiff sued several medical corporations and doctors, including a surgeon and an OB/GYN doctor, for negligence and wrongful death on behalf of the patient’s family. After Connelly settled his claims against the Obstetric & Gynecology doctor, the surgeon sought to depose plaintiff’s medical expert who had been disclosed as testifying expert. The plaintiff’s medical expert witness had already provided his expert opinion on the standard of care, breach, and causation regarding the OBGY doctor. The plaintiff made a motion for the re-designation of this expert as a consulting expert.
The defendant surgeon noticed the plaintiff’s expert deposition and joined in a co-defendant’s designation of the OB/GYN doctor as a non-party at fault. The surgeon also gave notice of his intent to rely on the plaintiff’s previous disclosure of his expert’s opinions against the OB/GYN doctor. The plaintiff responded by filing a notice purporting to re-designate his expert as a consulting expert only, and moved the court to enter a protective order barring the non-settling defendants from deposing the medical expert witness or seeking discovery related to him.
The surgeon opposed Plaintiff’s motion for a protective order and requested that his medical expert be ordered to appear for deposition. The Maricopa County Superior Court granted the plaintiff’s request and re-designated his medical expert as a consulting expert, which precluded the expert’s deposition.
The defendant surgeon appealed the trial court’s re-designation of expert as consulting expert. The doctor argued that the re-designation of the expert witness as a consulting expert did not reinstate the privileges and discovery protections that apply to consulting experts because the re-designation came too late in the course of the litigation and disclosure.
The Arizona Court of Appeals was asked to decide whether re-designation of an expert witness in a civil case from “testifying” to “consulting” operates to insulate the expert from discovery.
Judge Swann of the Arizona Court of Appeals stated in his opinion that if a party chooses to present its consulting expert as a testifying witness, they waived the privileges and discovery protections that would otherwise apply to that expert. A party that retains an expert has the decision of whether to permit information and opinions that expert has to be open to discovery. Once they choose to disclose the expert’s information and opinions, “a mere change of label cannot erase the effect of the disclosure,” explained Judge Swann. “If the nominal re-designation of an expert after disclosure could restore the privilege against discovery, form would triumph over substance, and the effectiveness of the discovery rules as tools for efficient and fair resolution of disputes would be blunted.”
Judge Swann noted that the federal courts have split on the question whether an expert’s re-designation means that it will prevent discovery from that expert after his or her report or opinion has been disclosed.
Taking into account Arizona’s broad disclosure requirements, the judge declared that a party’s designation of an expert as a testifying witness does not automatically entitle the opposing party to call that expert at trial. The trial court, he explained, retains the discretion to evaluate and control the use of this testimony under Federal Rule of Evidence 403. According to Judge Swann, this approach protects the party who initially retained the expert from unfair prejudice. This could be the creation of an unwarranted impression in the jurors’ minds that the party is attempting to conceal evidence. This impression might come from the unrestricted use of the information and opinions held by the opposing party’s expert.
The court of appeals said that in certain “unique” circumstances, it has permitted reinstatement of privileges and discovery protections for witnesses, whose opinions were previously disclosed, citing to Slade v. Schneider (Az. App. 2006). In that decision, the appellate court upheld the state Corporation Commission’s work-product privilege for an investigator who had submitted an affidavit in support of an application for an ex parte temporary restraining order in a securities fraud case. Judge Swann distinguished Slade in that the investigator served only as a fact witness. The court held that the Corporation Commission had not waived its work-product protection as it had never designated the investigator as a testifying expert. Slade did, however, apply precedent to hold that a party’s designation of an accountant as an expert witness rendered the accountant’s file discoverable.
This was a case of first impression—whether an expert witness whose opinions have been disclosed may be shielded from discovery by mere re-designation. The court of appeals said they could not and reversed the superior court’s decision.
Case: County of Maricopa, 290 P.3d 1214, 646 Ariz. Adv. Rep. 12 (2012).
By: Kurt Mattson, J.D. LLM