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Evidence: One Expert Rule/Indispensable Party/Non-Disclosure

Posted by Ted A. Schmidt | Jul 11, 2022 | 0 Comments

McDaniel v. Payson Healthcare, No. CV-20-0333-PR (July 8, 2022) (J. Montgomery)

Plaintiff injured his knee while riding his dirt bike. He was treated at defendant hospital where his C-Reactive Protein [CRP] level, a marker for infection, was incorrectly recorded.  His condition worsened and he was transferred to another hospital where he was treated by several additional doctors. Plaintiff ultimately suffered necrotizing fasciitis resulting in the surgical removal of all the skin on his right leg. Plaintiff sued the hospital and several doctors, through his conservator, claiming the failure to accurately report the  CRP level resulted in his permanent injury. 

Before trial, one of the doctors was dismissed in response to a motion for summary judgment which was uncontested by the plaintiff. The defendant hospital's motion to name this doctor as a nonparty at fault was denied.

At trial several treating physicians were called by the defendants to testify regarding their care and treatment of the plaintiff and that the standard of care was not breached. The defendants made it clear during this testimony that these treating doctors were not paid experts.  The defendants had disclosed that these doctors would testify consistent with their depositions and medical records, regarding their care and treatment of the plaintiff but did not disclose that they would testify regarding the standard of care. Defendants also called a retained and paid expert to further bolster their claim the standard of care was not breached.  In closing the defense argued 13 doctors, including the treating physicians, had all testified the standard of care had not been breached in this case against the plaintiff's single expert.

The jury returned a defense verdict. Plaintiff's motion for new trial was denied and this appeal followed. The defendant hospital cross-appealed the denial of its motion to name the dismissed doctor as a nonparty at fault.

The Arizona Court of Appeals reversed and remanded finding the defendants had violated Arizona Rule of Civil Procedure 26(b)(4)(F)(i) which allows each side in a case to call only one expert to testify on an issue and finding the trial court should have excluded the nondisclosed expert opinions. The court of appeals also found the dismissed doctor was an indispensable party to the cross-appeal and because the defense had not notified him of the cross-appeal the court lacked jurisdiction to consider the issue.  The Arizona Supreme Court vacated the court of appeals decision in part and affirmed the trial court in part remanding the case to the trial court. 

The supreme court held that the One Expert Rule creates only a “presumption” that each side can call only one “retained or specially employed expert” and that there was no error in allowing multiple treating physicians to testify regarding the standard of care within the context of their personal observations, care and treatment of the plaintiff. The court specifically found their testimony relevant. These doctors were not “retained or specially employed” experts. Further the One Expert Rule is intended to reduce costs not to balance the presentation of evidence. The court noted that the rule only creates a presumption which can be overcome for good cause. To the extent allowing such testimony creates an imbalance, the comment to the rule advises the court that allowing additional experts to testify (in this case for the plaintiff) is permissible.

Further the trial court has discretion, to disallow additional testimony on a single issue, such as the standard of care on the grounds the testimony would be cumulative. See Rule 403 of Evidence. The trial court's decision not to apply rule 403 here was not an abuse of discretion. 

Further, the court does have jurisdiction to consider a cross-appeal regarding the denial of the motion to designate the dismissed doctor as a nonparty at fault without notice to the doctor.  A jury apportioning fault against a nonparty does not create liability on that party.  Here the cross-appeal must be denied because a party dismissed on summary judgment, where there is no evidence the motion was unopposed due to a settlement, has been determined as a matter of law to not be at fault.

Finally, it was error for the trial court to allow the standard of care testimony from treating physicians where this expected testimony had not been timely disclosed  as required by Arizona Rule of Civil Procedure 37(c)(1).  Accordingly, the case is remanded for a new trial.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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