Civil Procedure—Good Cause Required to Excuse Delay Disclosing Expert on Appeal From Mandatory Arbitration

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Cosper v. Mora, __Ariz. Adv. Rep. __, CV-11-0083-PR (February 6, 2012) (J. Brutinel)

ARIZONA RULE OF CIVIL PROCEDURE 77(g)(1)&(4) REQUIRE FILING LIST OF WITNESSES & EXHIBITS SIMULTANEOUSLY WITH APPEAL FROM ARBITRATION AND A LATER DISCLOSURE IS ALLOWED ONLY FOR “GOOD CAUSE” SHOWN

Plaintiff sued defendant for damages in a car crash. The day after an award was entered for plaintiff in compulsory arbitration the defendant filed a notice of appeal along with a list of witnesses and exhibits and asking for a trial de novo. Two months later the defendant filed a supplemental disclosure revealing a biomechanist he intended to call at trial along with the expert's report.

Plaintiff moved to strike the new witness on the grounds no “good cause” had been shown for the late disclosure under Arizona Rule of Civil Procedure 77 (g)(4). The trial court granted the motion. Defendant took a special action to the Arizona Court of Appeals which reversed citing rules 26 through 37 of the Arizona Rules of Civil Procedure for the proposition the defendant need not show good cause for any disclosure of new witnesses filed up to 80 days prior to trial. The Arizona Supreme Court reversed the court of appeals.

The supreme court held that because rule 77 specifically governs appeals from compulsory arbitration and rules 26-37 governed all civil proceedings generally, the specific rule would control over the general. While rules 26-37 allow discovery and disclosure up to 80 days prior to trial without regard to cause, rule 77 specifically, clearly and unambiguously requires disclosure of witnesses and exhibits simultaneously with the notice of appeal from arbitration and only allows supplementation upon a showing of good cause, which was not shown here.

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