Civil Procedure/Evidence: Discovery-Expert Witness to Consulting

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Expert Para v. Anderson, 646 Ariz. Adv. Rep. 12 (App. Div. I, November

1, 2012) (J. Swann) ONCE EXPERT WITNESS OPINIONS DISCLOSED CANNOT PROTECT EXPERT FROM FURTHER DISCOVERY BY REDESIGNATING AS A "CONSULTANT"

Respondent brought a medical negligence wrongful death claim against various health care providers. Pursuant to ARS sec. 12-2603 respondent filed an affidavit with Dr. Pantilat's opinions alleging negligence by Dr. Khoury. Thereafter respondent settled with Khoury. Remaining defendants then designated Khoury as a nonparty at fault. Respondent then attempted to redesignate Pantilat as a "consulting" expert and filed a motion for protective order in an effort to shield Pantilat from discovery. The trial court granted the protection and the nonsettling defendants sought special action relief. The Arizona Court of Appeals accepted jurisdiction and granted relief.

The court noted that due to the "sharp distinction" between what can be discovered of a testifying versus consulting expert, an expert cannot be both. Once a consulting expert is designated as a testifying expert the protections against discovering her opinions and communications are waived. However, these protections can be reinstated if the expert is redesignated a consulting expert before his opinions are disclosed. Once opinions are disclosed the protections are waived and the expert is subject to discovery. However, while discovery will be allowed, whether or not the opposing party can call the witness at trial is subject to the sound discretion of the trial judge under Rule 403 Rules of Evidence (probative value outweighed by prejudice). The trial judge may very well conclude that allowing the opposing party to use the expert at trial would create unfair prejudice to the party initially retaining her-"creation of an unwarranted impression in the minds of jurors that the party is attempting to conceal evidence."

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