Scope of Discovery of Expert Bias

Civil Procedure—Scope of Discovery of Expert's Bias

American Family Mutual Ins. Co. v. Grant, 566 Ariz. Adv. Rep. 26 (Ct. App. Div. II, October 8, 2009) (J. Downie)

WHERE EVIDENCE OF PRIOR TESTIMONY AND BIAS IS AVAILABLE SUBPOENA DUCES TECUM FOR ALL REPORTS FOR AN INSURANCE COMPANY OR ATTORNEY AND LIST OF ALL CASES WAS OVERBROAD

Plaintiff was involved in an auto accident which resulted in a Underinsured Motorist claim against the defendant. The claim was denied based upon an Independent Medical Exam performed by Dr. Zoltan who opined plaintiff had prior accidents and preexisting conditions responsible for her problems and the accident at issue was not causing her any ongoing problems.

Plaintiff sued for bad faith and before deposing Dr. Zoltan served a subpoena duces tecum upon him seeking all prior reports to the defense firm and a list of all cases he testified in for the last 5 years, all reports for the last 3 years to the defendant or any other insurance company and detailed financial information.

The trial court essentially overruled defendant's objection and the Court of Appeals reversed. The Court of Appeals found that where the plaintiff already had much of this information from other sources and where such burdensome requests might deter experts from being willing to participate in the civil process, requests this broad were inappropriate. The court found that if the expert is uncooperative on bias issues in deposition or the bias information were not otherwise available, the trial court could fashion the least intrusive relief necessary to assure plaintiff the right to prove bias.