Expert Disclosure Rules Apply to Defendant in Medical Negligence Case

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Medical Negligence-Expert Disclosure Re Defendant Doctor/Sanctions

Solimeno v. Yonan, ___ Ariz. Adv. Rep. ___ , No. 1 CA-CV 09-0139 (App., Div. I, March 18, 2010) (J. Downie)

WHERE DEFENDANT DOCTOR IN A MEDICAL MALPRACTICE CASE TESTIFIES HE COMPLIED WITH STANDARD OF CARE THERE MUST BE A TIMELY PRETRIAL DISCLOSURE OF THE FACTS, OPINIONS AND A SUMMARY OF THE GROUNDS FOR THE OPINIONS/ ARS SEC 12-349 (A)(3) ALLOW FOR AWARD OF FEES AND COSTS FOR FAILURE TO DISCLOSE THUS CAUSING MISTRIAL

Plaintiffs brought a medical negligence wrongful death claim. Defense counsel repeatedly objected during plaintiffs' case on the basis of nondisclosure on even minor points. Then during defense case allowed the defendant doctor to volunteer opinions and the basis for those opinions regarding the standard of care that had not been previously disclosed except in a very general way. Further, this testimony elaborated far beyond what the defendant had testified to in deposition and in some instances conflicted with that deposition testimony.

The trial court granted the mistrial finding the failure to disclose these details was a flagrant violation of the disclosure rules particularly when defense counsel had insisted on such meticulous disclosure during plaintiffs' case in chief. The Court of Appeals agreed and further found that it is not defense to nondisclosure that adverse counsel could have discovered the information had she asked more artful and thorough questions in deposition. Under the disclosure rules sandbagging and gamesmanship is not allowed.

Finally, the Court of Appeals sustained an award of $125,000 in attorneys' fees and costs pursuant to ARS sec. 12-349 (A)(3) finding the failure to disclose here constituted "unreasonable expansion or delay in the proceedings." Further, fees awarded a plaintiffs' attorney are not measured by what insurance defense counsel is permitted to charge.

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