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Last Post 21 Jul 2014 12:08 PM by  James Kloss
R-13-0042 Rule 26(b)(4)(C), Ariz.R.Civ.Proc.
 114 Replies
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Author Messages

24 Apr 2014 01:09 PM
Jo Ann Nieme
Anapol Schwartz
8700 E. Vista Bonita Dr., Ste. 268
Scottsdale, AZ 85255-3203

Dear Justices:

I write in support of this Petition. Our firm represents individuals who have suffered catastrophic injuries as a result of defective products. Our clients have been severely burned or have been rendered permanently brain injured or quadriplegic. Due to the nature of their injuries these patients are treated acutely by many of the finest physicians at facilities like Barrows Neurological Institute and Maricopa County MC Burn Center. These physicians are not litigation experts. They are busy, "in-the-trenches" clinicians. While these treating physicians sincerely want to help their patients, they should not be forced to do so without being fairly compensated for their time. Not doing so will result in their unwillingness -- due to time and financial constraints -- to the detriment of very seriously injured patients.

The recommended amendment the Rule will allow treating physicians to receive reasonable compensation for their litigation services.

It respectfully requested that the Court adopt the Petition.

Jo Ann Niemi

24 Apr 2014 01:10 PM
Eric W. Robinson
Escamilla Law Group, PLLC
2950 North 91st Avenue, Ste C-103
Phoenix, AZ 85037
(623) 877-3600
(623 877-3606
AZ Bar No. 029954

I write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at an appropriate rate for time testifying in deposition.

I have read through the comments and am likely the most junior attorney to comment on this petition. As such, I feel I have a unique perspective on its probable consequences.

Though I have only represented injured plaintiffs for a relatively short period of time, I am acutely aware of the difficulties my clients often face when seeking medical attention as a result of a third party's negligence. Many medical providers already refuse to see patients who are involved in an accident. I fear that within a short amount of time, after enough providers have been compensated at only $12.00 per hour for a significant amount of their time, the remaining providers will follow suit and cease treating accident victims.

I encourage the court to adopt the petition to ensure that treating providers are not unduly burdened, and so that injured parties may have continued access to the appropriate medical care.

Thank you,
Eric W. Robinson

24 Apr 2014 01:16 PM
Kenneth P. Gerber
Gerber Injury Law
12133 W. Bell Rd., Suite 202
Surprise, AZ 85378
866-809-8076 (fax)
AZ Bar No.: 027387

I am writing in support of Petition R-13-0042 to amend Rule 26(b)(4)(C). I have practiced Plaintiff's personal injury for almost 20 years. I practiced personal injury in Florida before moving to Arizona in 2009. I have found through the years, and in both states, that finding physicians to treat patients who have a personal injury claim is difficult enough without the added hurdle that they may be called to testify without being compensated for their time. With the current status of the law based on the recent ruling unscrupulous defense attorneys and insurance companies have an opportunity to make this an even bigger issue. Should the law stand, we are likely to have fewer and fewer physicians who are willing to stand up for patients injured and making a legal claim for just compensation. This will only further disadvantage our clients, who are already fighting an uphill battle against large corporations.

24 Apr 2014 01:17 PM
Michael Rich
Burke Panzarella Rich
2198 E Camelback Rd, Ste 375
Phoenix, AZ 85016
602-222-4848 phone
602-222-4860 fax
Bar # 015979

I have read the Petition by AzAJ to amend Rule 26(b)(4)(C). This amendment needs to be approved.

This is my twentieth year practicing personal injury law in Phoenix. Physicians who have treated injured parties are often called to testify in court proceedings. These physicians have been considered “experts” and have been compensated for their time. After the holding in Sanchez, treating physicians are no longer compensated fairly for the time they spend on legal matters. They are considered lay witnesses and compensated $12 an hour for their time. This is patently unfair for the plaintiff. Before the ruling in Sanchez, many physicians did not want to treat innocent injured parties because of potential legal matters. Many preferred to stay out of the potential conflict which often comes with litigation. However, other physicians would agree to treat victims who needed care and would be willing to testify if it was necessary. And, when it was necessary, the doctor was often pulled out of his office for hours or even days, but he was compensated a fair hourly rate commensurate with his or her normal hourly rate. This only seemed fair. Sanchez mistakenly changes all that. The treating doctor is no longer compensated for his time. Yet, on the other hand, the defense expert – a doctor hired to comment on the victim's care – can charge his or her normal hourly rate. The playing field is now no longer level. At this point, even doctors who were willing to get involved in legal matters prior to Sanchez will no longer be cooperative – and who would blame them.

The proposed amendment to Rule 26(b)(4)(C) needs to be adopted. It will allow treating physicians to receive reasonable compensation for their involvement in litigation. Fairness, and ultimately justice, is at stake.


24 Apr 2014 01:24 PM
H. Christian Bode
Bode & Collins, P.L.C.
7377 E. Doubletree Ranch Road #210
Scottsdale, AZ. 85258
480.355.5020 phone
480.355.5021 fax
Az. Bar # 007346

Dear Justices:

I write in support of the proposed amendment to Rule 26 that would require medical professionals to be compensated a reasonable fee for their time testifying. I have been in practice for almost 32 years and for the first twenty years of my practice represented primarily defendants in personal injury litigation. The last ten years of my practice has been representing plaintiffs in personal injury and medical malpractice cases. In short, I know this issue from both sides of the aisle.

Until Sanchez v. Gama, the custom throughout the state was to reasonably compensate doctors for their time when testifying. Whoever noticed the deposition or called the doctor at trial paid the doctor a for the doctor's time. The system worked great and the only issue that ever arose was determining what a "reasonable fee" was.

Since Sanchez, I have had personal experience where my clients' doctors have fired them as patients when they learn that the client is pursuing litigation. This is because they do not want to be forced to give testimony--relevant, material, testimony--for free. And who can blame them? Also, since Sanchez, doctors are now refusing to speak with lawyers informally about the patient's/client's condition for fear of being called as a witness for no compensation. As a result, we have had to hire at great cost independent physicians to review the first doctor's records and then give testimony as to the reasonableness and necessity of the first doctor's care and prognosis for the patient/client. The defendants then pay the second doctor for the doctor's time to take a deposition because the second doctor is now an "expert" hired for the litigation. These combined charges far exceed the reasonable fee typically and previously afforded the treating physician.

Now, instead of having a system that worked well for at least 30 years, we now often are forced to present testimony of an arguable "hired gun" working off of second-hand reports instead of the neutral doctor with the greatest knowledge of the client's/patient's injuries and their relationship to the defendant's negligent conduct. That is no way to run a system of justice.

Rule 26 should be amended to incorporate the practices that worked so well for the last thirty years.

24 Apr 2014 01:29 PM
Samuel Saks
3003 N. Central Avenue
Suite 600
Phoenix, AZ 85012
Tel. (602)200-1022
Fax. (602)200-0106

I write in support of R-13-0042. Doctors should not have to suffer because they routinely become "witnesses" in practicing medicine. Injured patients should not be turned away due to legitimate concerns from doctors that treatment will lead to business interruption. It is the litigants that should bear the financial costs associated with their litigation.

24 Apr 2014 01:30 PM
Eric S. Shapiro (AZ Bar #018915)
Eric S. Shapiro, Attorney at Law, P.L.C.
3030 N. Central Avenue, Suite 802
Phoenix, Arizona 85012
(602) 274-7400
fax (602) 274-8585


The majority of my legal practice involves handling personal injury cases arising from motor vehicle collision. My clients often suffer significant injuries which require extensive medical care. During my sixteen years of practice, I have discovered that medical providers are often reluctant to treat an individual that is injured as a result of a motor vehicle due to the fact that the provider does not want to become involved in potential litigation (this reluctance includes my clients' primary care physicians that have treated clients for over a decade). The recent ruling in Sanchez v. Gama, limiting treating providers to a $12.00 witness fee, will significantly reduce the number of medical providers that remain willing to treat collision-related injured parties. The increased level of reluctance will be directly tied to the fact that medical provider will be pulled out of his/her practice for half of a day, a full day, multiple days, to appear for a deposition (resulting in lost revenue of thousands of dollars as the provider will be unable to see patients while in depositions), while only compensating the provider's lost time from work at the rate of $12.00/hour.

At the same time, consider the fact that defense counsel's "retained expert witness" medical provider (whom often times no longer has a medical practice) is allowed to charge literally thousands of dollars to appear for a similar deposition. This provider, whom has interjected him/herself into the litigation, receives a greater consideration for their time than the treating professional? There simply is no justification for this difference, and this difference is harmful to society's needs.

Finally, it has come to my attention that defense attorneys are setting depositions with treating medical providers, paying the providers $12.00 for their attendance, spending 30 minutes of the deposition focused upon factual issues (the treatment/injuries), and then use the remaining 3.5 hours to harass the medical provider. The current state of the rule, and its interpretation in Sanchez v. Gama, is a license for abuse of the medical profession and it is casting a dark shadow upon the legal profession.

The proposed rule change will address these issues, ensure that medical providers in Arizona will remain willing to treat individuals that sustain injuries as a result of motor vehicle collisions, injuries on the job, or elsewhere, and improve the overall reputation of the legal profession.

24 Apr 2014 01:34 PM
Lawrence K. Lynde
4506 N. 12th St.
Phoenix, AZ 85014-4246

I write in support of this petition. Treating doctors invariably provide expert testimony when deposed or otherwise called upon to testify. The Sanchez v Gama decision is contrary to the long-accepted/acknowledged practice in the personal injury community that treating doctors, like other expert witnesses, are entitled to be compensated for their time. This practice most particularly applies to treating doctors. Treating these doctors solely as fact witnesses is, respectfully, a fiction that penalizes these those doctors who help/treat injured people. It is inevitable that doctors will begin to decline to treat injured people if they know they may later be subpoenaed and deposed for 1-4 hours without being compensated for their time.

Experts of all types are required to be compensated for their time in testifying. The notion that treating doctors are not entitled to the same treatment is contrary to long-standing practice and common sense. The proposed rule codifies the custom and practice that has existed since long-before I began to practice 25+ years ago. I respectfully urge that the proposed rule change be adopted.

Lawrence K. Lynde

24 Apr 2014 01:59 PM
Frank I. Powers
Harris Powers & Cunningham
361 E. Coronado
Phoenix, AZ 85004
602-271-9344 (phone)
602-252-2099 (fax)
AZ Bar No. 013369

Physicians who make themselves available and testify in litigated cases should be fairly compensated for their professional time. Forcing them to miss time from there practice and lose practice income without reasonable compensation is untenable. I therefore support the proposed petition.

Frank Powers

24 Apr 2014 03:32 PM
Nicholas A. Moceri
7550 E. Addis Av.
Prescott Valley, AZ 86314


I write in support of the petition. I have represented plaintiffs in personal injury cases for 38 years, 35 in Prescott, AZ. In my small town I have watched the number of physicians willing to treat injury victims dwindle because of the hassle involved in litigation. Doctors have even refused to treat existing patients for accident-related conditions. Continuing under the Sanchez opinion will reduce that number even further. Doctors have a finite amount of time to devote to patients' concerns, and uncompensated time will be done away with.

There is no upside to the system mandated by the Sanchez opinion. The opinion is premised on a deposition where no opinion questions are asked. Sanchez failed to recognize that there is little, if any, reason to depose a treating doctor without asking opinion questions. Except in the rare cases of indecipherable medical records, all the factual information regarding plaintiff's medical treatment already is in the hands for the defense attorney in written form.

I agree with the comments above. There needs to be a clarification of the obligation to fairly compensate medical witnesses and protect them from meaningless infringements on their time.


24 Apr 2014 04:19 PM
William C. Bacon
Goldberg & Osborne
33. N. Stone Ave. 900
Tucson, AZ 85701
Fax 520-620-3991
State bar No. 004895

I am writing in support of the petition to amend Rule 26(b)(4)(C). I have observed a clear trend in the last few years where statutes and appellate opinions seem to be eroding the idea that the courthouse should be open to everyone. The Sanchez decision will effectively limit injured parties' ability to present evidence from their treating physicians. If those doctors are not reasonably compensated for their time in depositions, they will either refuse to get involved in treating patients when the case might end up in litigation or the injured party will have to compensate the physician for the time spent in the deposition noticed by the defense. Either scenario potentially limits access to the courts. The proposed changes will keep the courthouse available to everyone, not just those with the resources to seek justice.

24 Apr 2014 04:23 PM
Noah J. Van Amburg
Van Amburg Law Firm, P.L.L.C.
145 S. 6th Ave.
Tucson, Arizona 85701
T: (520) 323-4559
F: (520) 323-4595
E: njv@azbar.org
AZ Bar No. 022373

I have reviewed the AzAJ petition to amend Rule 26(b)(4)(C) and I would like to provide my support for the proposed changes. Any attorney involved in the litigation of injury claims---whether an insurance defense attorney, a plaintiff's attorney, or a sitting trial judge---knows that compelling treating physicians to testify without reasonable compensation for their time has enormous consequences that transcend the partisan interests of our bar community. Many attorneys will never feel free to comment on the issue or wish to do so because of the short term gain the current rule provides them in the adversarial system. However, it is difficult to imagine that, in a moment of anonymous candor, any but the most dogmatic would not admit that the rule as written and interpreted by Sanchez does significant harm that is both immediate and long term in nature.

As discussed by Geoff Trachtenberg and Richard Plattner, as well as many of the comment authors above, our system of justice relies upon participation by various persons at different levels of commitment. A witness who observes a collision may often be called upon to give a statement over the telephone, rearrange his or her work schedule in order to appear at a deposition at a time convenient for the attorneys, and possibly testify at a trial at a time largely dictated by the court. Fortunately, it is very unlikely that any one witness like this would have to give up such a significant amount of time on a regular basis.

In contrast, other individuals are likely to have more forced contact with the legal system as a witness. My father was a school superintendent and school headmaster. In that role, he was forced to attend depositions regarding children's injuries or other matters on a far more regular basis than those in many other professions. The fact that our legal system forced him to spend significant time being subject to examination without any concern for his time, his schedule or the collateral costs, was a source of his repeated complaints.

Medical providers, more than any other individuals, bear the brunt of our system's evidentiary consequences. Our rules require the testimony of treating physicians under most circumstances in order for claimants to meaningfully exercise their remedial rights. The right to depose those treating doctors comes as part and parcel of that requirement under our rules. It has always been the case, even before Sanchez, that my clients were informed by certain physician's groups that the doctors would not accept a referral to their medical office from another doctor because of the manner in which the victims were injured; these victims were informed that because the injury could lead to a claim or litigation, the doctors would not see the prospective patient. If Rule 26(b)(4)(C) is not amended in conformity with this petition, the frequency of these refusals to provide care to injury victims will undoubtedly increase. If that happens, we as members of the legal profession will be responsible for the further victimization of these individuals who rely upon the legal system for help.

It is my hope that the greater good of the justice system is the perspective from which this proposed change is viewed. If so, I am confident that the correct decision will be reached regarding this petition.

Noah J. Van Amburg

[i] [/i]

24 Apr 2014 04:45 PM
Randall A. Hinsch
316 E. Flower St, P.O.Box 36570
Phoenix, AZ 85067
Ph: (602)266-2002
FAX: (602)266-6908

I am a certified specialist in Personal Injury and Wrongful Death. The Sanchez ruling punishes doctors as well as injure parties. Without be allowed to be properly compensated for their time doctors will stop providing treatment to those people injured in accidents. It in effect will deprive a class of people access to the courthouse. I wholeheartedly endorse this petition.

24 Apr 2014 05:54 PM
Samuel P. Moeller
Law Offices of Samuel P. Moeller, PLLC
1411 N. 3rd St
Phoenix, AZ 85004
(602) 374-8009
(602) 535-1201 fax
AZ Bar No. 025270

Dear Justices:

I am writing in support of R-13-0042. I have read the above comments and agree with all of them. The decision in Sanchez puts a very unfair economic burden on plaintiffs. Once a victim, twice a victim. Most plaintiffs are already in a disadvantaged economic situation as a result of the underlying tort giving rise to the need for litigation. The decision in Sanchez just further pours salt in the wound. Sanchez is clearly an unfair burden to the plaintiffs and is a windfall to the insurance companies.

I believe the court should adopt the petition.

Sam Moeller

24 Apr 2014 05:57 PM
Terrence A. Jackson
1670 E. River Rd., Ste. 200
Tucson, AZ 85718-5970

this is support of R-130042. There are already doctors who are reluctant to treat accident victims for fear of being dragged into litigation, or who gladly treat the victim, but resist cooperating in the patient's claim process. Historically, most treating physicians have agreed to testify if upon payment of an amount commensurate with what they would have earned while seeing patients during the time they are required to be out of their practice. This system worked pretty well, with plaintiff's paying the doctor for his report or direct testimony and defendants or their insurers payin the doctor or his time in discovery deposition. The recent court decision requiring doctors to appear upon subpoena, typically by defendants, with only the $12 subpoena fee as compensation is grossly unfair to the doctors and will make them wary of treating accident victims. More often, this situation will have doctors treat the victim but refuse to testify on the plaintiff's behalf as to the reasonableness and necessity of the treatment. This is unfairly prejucial to injured victims and in some cases will make it impossible for them to receive fair compensation in our judicial system. It will be a windfall for the defendants who caused the harm and their insurers. Please amend the rule to cur this situation. Thank you for considering my comments.

24 Apr 2014 07:28 PM
Carolyn Kaluzniacki
Law Office of Carolyn Kaluzniacki
2700 North Central Ave, Ste 1400
Phoenix, AZ 85004
State Bar #004991

To: The Arizona Supreme Court:

I write in support of Amendment R-13-0042 to Rule 26(b)(4) which will reinstate the common practice of allowing reasonable compensation for physicians who testify about care they provide to patients and about the injured patient’s condition. This long- standing, reasonably functional practice was abruptly barred by a recent court decision that was ill advised and needs immediate correction.

Doctors are called on to save lives and provide care when injuries occur and therefore have unique observations relevant to litigation, criminal or civil. Sometimes they risk their own lives to save patients. Generally they make a good living. But if we force them to testify for free or for $12 whenever they provide care in injury cases that result in litigation, they may be less willing to jump in and provide care in difficult cases and charity cases and they will become more terse, resentful and uncooperative as witnesses. More than most other professions, doctors, particularly certain doctors, such as trauma surgeons, anesthesiologists, ER doctors and others are called upon to save lives and to also testify in the ensuing litigation.

A close friend of mine who was a trauma surgeon used to ask me what a fair charge would be in the many cases he was called upon to testify—criminal and civil. He never made as much testifying as he made in surgery. He preferred to have his free time instead of waiting around to testify and to be berated or bullied by attorneys. He felt a duty to testify. He knew it was important to the patient, to society and to our judicial system.

We need doctors as caregivers and we also need their observations as witnesses of events that inevitably result in litigation. The long-standing practice of reasonable compensation for these special witnesses should be reinstated.

I urge you to adopt the proposed amendment.

Carolyn M. Kaluzniacki
Carl Piccarreta

24 Apr 2014 07:39 PM
Carl Piccarreta
145 S. Sixth Ave.
Tucson, AZ 85701
007151 (Bar number

I write in support of Petition R-13-0042 amending Rule 26(b)(4)(C).

Physicians', like attorneys, stock in trade is their time. The Sanchez opinion greatly discourages any physician from treating an injury victim for fear such treatment will take one away from his/her practice for the cost of a witness fee for both deposition and trial--$12.00. A significant percentage of physicians are already reluctant, or outright refuse, to treat folks who may get involved in litigation. The Sanchez Rule will, in fairly short time, dramatically raise that percentage effectively denying access to justice to many of our innocent fellows. That is not justice. That is not the American legal system.

I urge your favorable consideration of this important, and fair, Rule change.
Thank you,

24 Apr 2014 10:21 PM
Bernard E. Grysen
806 River
Spring Lake, MI 49456-1953

I support this rule change. Treating physicians and providers deserve to be appropriately compensated for their time. The court rules should reflect the respect we have for these medical professionals. The rule will codify the previously prevailing practice and prevent abusive and disrespectful tactics.

25 Apr 2014 08:58 AM
Robert N. Edwards
2150 3rd Ave., Ste. 300
Anoka MN 55303-2296

Dear Justices;

I have reviewed the Petition in this matter and would like to share with you my perspective as an attorney practicing in Minnesota and Arizona. Rule 45.03(d) of the Minnesota Rules of Civil Procedure states:

Compensation of Certain Non-Party Witnesses. Subject to the provisions of Rules 26.02 and 26.03, a witness who is not a party to the action or an employee of a party [except a person appointed pursuant to Rule 30.02(f)] and who is required to give testimony or produce documents relating to a profession, business, or trade, or relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents.

This Rule, which has been in effect for as long as I've been practicing (34 years) works well. The present state of affairs in Arizona following the Gama decision will have a very detrimental effect on the ability of injured people to obtain the best medical care. The doctors who routinely treat injured people will quickly learn that $12 plus mileage is a bad deal for them and will simply stop treating accident victims.

Respectfully Submitted;

Robert Edwards
Anoka, Minnesota

25 Apr 2014 12:38 PM
Paul G. Hofmann
7440 N. Oracle Rd., Bldg. 5
Tucson, AZ 85704-6379
(520) 797-1041
(520) 797-1491 fax

As many who are familiar with personal injury practice know, it is already difficult to find doctors who will treat those who've been injured in accidents. But at least, prior to the Sanchez decision, the providers who agreed to treat accident patients could rely on being properly compensated for the additional time required for their involvement in litigation. Moreover, paying a professional for their time has never, until now, been controversial.

This rule change is critically important to ensure that those injured through no fault of their own get proper care, and, hopefully, a just outcome.

I strongly urge you to adopt the rule change.

Paul Hofmann
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