Rules of Civil Procedure—Expert Witness: Treating Doctors Not Experts If Testimony Limited to Facts

Sanchez v. Gama, 667 Ariz. Adv. Rep. 49 (Ct. App. Div. I, August 2, 2013) (J. Thompson)


Hernandez sued Sanchez for injuries sustained in an auto accident. Sanchez sought to depose Hernandez' treating chiropractor but refused to pay expert witness fees. The trial court ordered expert fees be paid. Sanchez brought this special action seeking an adjudication that under Arizona Rule of Civil Procedure 26(b)(4)(a) & (c) a treating doctor asked only to testify to his examination, care and treatment and opinions formed during that treatment, as well as the reasonableness of his charges is not entitled to an expert witness fee. The Arizona Court of Appeals accepted jurisdiction and granted petitioner the relief sought .

Under criminal procedural law the court of appeals had previously held a treating doctor is not entitled to expert witness fees if only asked to testify about her care and treatment of a party where she was only required to review her own records in order to testify. State ex rel. Montgomery v. Whitten, 228 Ariz. 17, 262 P.3d 238 (App. 2011). Even where the doctor is asked to explain medical terminology and techniques to jurors, the mere fact the doctor has and uses special, knowledge, training and expertise, does not make her an expert witness whose testimony was prepared in anticipation of litigation. Only where the treating doctor is asked to review the records of other physicians and opine on them, is asked to address hypothetical questions or opine re causation, is the doctor an expert entitled to expert fees. Relying primarily upon the interest of saving costs and promoting efficiency and noting that nonmedical professionals receive no special treatment and are not entitled to expert fees for lay testimony the court held:

When a treating doctor is testifying only to the injury, medical treatment, and other first-hand knowledge not obtained for purposes of litigation, the treating doctor is a fact witness and need not be compensated as an expert. However, where expert testimony is solicited, whether the source of the expert's underlying information is from personal observation or the observations of others, but the testimony is developed for purposes of litigation, the doctors must be compensated accordingly.

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