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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

09 May 2014 12:26 PM
John A. Furlong, Bar No. 018356
General Counsel, State Bar of Arizona
4201 N. 24th St., Suite 100
Phoenix, AZ 85016
Telephone: (602)340-7236
Fax: (602)271-4930
Shaw John

11 May 2014 04:40 PM
John Dalton Shaw
Law office of Shaw and Gould
1536 West Thomas Road
Phoenix, Arizona 85015
T- 602 265-1603
F- 602 265-1505
Bar # 005368

It is unrealistic to expect that medical providers will testify on behalf of their clients without reasonable compensation. This point was not addressed by the court in Sanchez v. Gama, No. 1 CA-SA 13-0072 (Ariz. App. Div. 1, Aug. 20, 2013). Therefore, Plaintiffs if the decision stands will be forced to compensate medical providers when they testify at depositions set by Defendants. The decision does not "save" or "reduce" litigation costs at all. What it does is shift the cost from the Defendants to the Plaintiffs. In most cases the Defendants litigation costs are paid by insurance companies who generally can afford litigation costs. In any event, the Defendants can always avoid the costs by foregoing a particular deposition. A decision that Plaintiffs must consider in the vast majority of cases. The proposed rule change restores the balance that existed before the Sanchez decision. The party seeking the testimony pay the medical provider for his time.


13 May 2014 10:38 AM
Richard W. Andreasen, DC
7400 S Power Rd, #120
Gilbert, AZ 85297
(480) 279-4441

Dear Justices,

I, too, write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure. I have practiced chiropractic in Arizona since 1997, with the majority of my practice being dedicated to treating personal injury victims. When called upon to go to court to testify, a physician must cancel patient appointments to allow for the time needed to travel, appear, and testify. Certainly the $12 fee does not provide fair compensation.

If this Rule is left unamended, I fear that I and my colleagues would be discouraged from testifying as to the treatment we provided our patients, and placing our patients at a serious disadvantage in receiving a fair outcome in their cases.

Thank you for your consideration.

Richard W. Andreasen, DC

13 May 2014 10:50 AM
Dr. Bill Gallagher
8426 E. Shea Blvd.
Scottsdale, AZ 85260

Please add me to the list of those in support of R-13-0042 Petition to Amend Rule 26(b)(4)(C), Ariz. R. Civ. P.

The thought of being paid $12/day and 20 cents/mile, one way, which really comes to 10 cents/mile goes beyond the absurd. Such fees would not only cause undue harm and stress to me but also to patients who would not have access to my services. These patients include those who could not be seen on days when I am called to testify as well as those who would not get care, if I know that treating anyone who may eventually need me to testify, would cost me money.

If the courts see fit to pay me as a fact testifying, treating doctor they can get the facts from my notes. If further questions requiring my knowledge, experience of opinion are needed I should be compensated for that. $12/ day is not compensation, it is an insult. The only way I could support the existing ruling is if the attorneys who call on me to testify are paid at the same $12/day.

13 May 2014 11:42 AM
Dr. James D. Suba
4229 W. Ina Rd., Ste. 101
Tucson, AZ 85741

I am an Arizona licensed Chiropractic Physician. While it may be the public's impression that physicians earn more than enough money through their work as a physician, that is untrue. In addition to not being wealthy, many of us including me have student loans in excess of $175,000.00 that we are paying back for our education that provided the opportunity for us to become licensed physicians. There are other costs involving mandatory continuing education, computers/software and other tools with continuing evolving technologies. This doesn't take into account daily living expenses.

So how does one begin to fathom that a physician's time required for a deposition involving time-off from work (no income generation), travel expense and preparation is only worth $12.00? A licensed physician has an exceptional liability regarding their testimony. Any perception of untruths, inaccurate information, lack of knowledge, etc. may not only compromise the case but could also result in a complaint with their licensing board resulting in an action against the physician further compromising their ability to have a job and earn income.

I do not wish to quote legislation and petition rule numbers in order to avoid making the mistake of supporting a petition inaccurately. However, I cannot state strong enough that being compensated only $12.00 for a deposition or other court testimony is one of the worst assaults to my profession that any legislature could impose. I am an employee, an associate physician, which obligates me to do what is in my job description. However, when the time comes that I have my own practice, it is highly unlikely that I will take any personal injury case patient due to this type of irresponsible legislation.

13 May 2014 11:50 AM
Keith Lavender
2915 E. Baseline Rd. Suite 126
Gilbert, AZ 85234

I am writing to voice my support to amend R-13-0042 Rule 26(b)(4)(C), Ariz.R.Civ.Proc. as outlined. As with our attorney friends, our client is our primary concern. Those clients seek us out for our expertise in our fields. That expertise requires that we have normal office hours and as a result we are only compensated when maintaining those open hours and caring for our clients. The doctor's time must be compensated at a rate commensurate with what they would be earning while in their office setting.

As a doctor I can tell you that the idea of not being fairly compensated for a deposition that may be required by one of my clients who has been the victim of an accident destroys the very foundations of professionalism between the justice system, victims of accidents and the medical community. This looks like a win-win for the insurance industry. I agree with the aforementioned comments and am pleased to see so many willing to express common sense in regards to the rules governing depositions. I therefore hope the court will adopt this petition.

Keith Lavender

14 May 2014 10:21 AM
Steven H. Pincus, Esq.
2133 E. Warner Road
Suite 101
Tempe, AZ 85284

Please add me to the list of those in support of R-13-0042 Petition to Amend Rule 26(b)(4)(C), Ariz. R. Civ. P.

I have been practicing personal injury law in Arizona for over 20 years.

Access to our legal system in personal injury cases is paramount. This is largely why contingent fee agreements are utilized in personal injury cases. Most innocent people who find themselves injured due to the negligence of another are not in a position to finance a lawsuit. Part of what gives such people access to the legal system is an attorney who is willing to take their case on a contingency. Another crucial part of having such access is the ability to keep costs in-check when the total case value you are dealing with may be in the $12,000 to $15,000.00 range; which is typical of automobile accidents.

No one should be asked to work for free, and this certainly includes treating physicians. If the defense is no longer required to pay treating physicians for their time, I see two options. One is that the Plaintiff pay their doctor for their time; which would increase the costs of litigating thereby making it financially not feasible to litigate such smaller dollar cases. The second is that doctors will simply refuse to treat accident patients – which many already refuse to do.
It is a basic principle that anyone who is asked to provide a service, that is within the realm of their livelihood, ought to be paid for their time. And, as it would serve to dismantle permitting access to our legal system to deny payment to treating physicians by the party noticing their deposition – this Rule change is needed.

Steven H. Pincus

14 May 2014 12:10 PM
Tod L. Stewart
Stewart & Torgersen, P.A.
2999 N. 44th Street, Ste. 318
Phoenix AZ 85018

I handle almost exclusively personal injury cases. A large majority of the cases that I handle involve soft tissue injuries and only a few catastrophic injury cases. I believe that this is reflective of average number of cases, by type, handled by most personal injury lawyers and law firms. Despite the low monetary value of the soft tissue claims, these cases need to be litigated when they are wrongfully denied or minimized. The injured victims of negligence have a constitutional right to recover for the harms done to them. Any disincentive to pursue those claims will be used as an opportunity by defendants attempting to avoid their legal liability.
A major disincentive to the pursuit of these legitimate claims will occur if the physicians are financially burdened by simply being part of an injury claim. The end result will be that many physicians will refuse to treat personal injury patients. If this petition is not approved, more physicians will refuse to treat individuals involved in accidents. Based on the holding in Sanchez v. Gama, I anticipate the ruling to be used as a basis to alienate doctors and have them in conflict with the best interests of their patients. This petition should be approved.

16 May 2014 03:59 PM
Scott DeMent, D.C.
6520 E Carondelet Dr. Tucson, Az 85710
fax 520-748-9028

Doctors need to be compensated for the time that they are out of the office to attend a deposition. Most of the Chiropractors are small business owners and the amount of lost income to go to a deposition is damaging to the business. If a doctor is being questioned about a case that they have been working on They should be fairly compensated. The depositions call on the doctors experience and knowledge in which the doctor has paid for through his/her education and long hours at work. This information has value and needs to be fairly compensated. Therefore rule 26 needs to be approved.

18 May 2014 02:20 PM
Richard Langerman
4506 N. 12th St.
Phoenix, AZ 85014-4246

I am a long time personal injury attorney. I write in support of R-13-0042. The proposed rule is necessary to undo the harm caused by the recent decision in Sanchez v. Gama.

Many doctors have developed an antipathy for the legal community - particularly to lawyers who represent accident victims. Over the last 30 years efforts have been undertaken in Arizona to facilitate dialogue and resolve disputes between the medical and legal communities. Despite these efforts some physicians do not want to get involved in personal injury litigation involving the physician's patients.

The Sanchez decision has undermined the modicum of cooperation developed between the medical and legal communities. The decision is unfair to doctors whose practices include treatment of trauma victims and will exacerbate the problem that trauma victims have in obtaining access to quality medical treatment.

The proposed rule change would establish an appropriate balance to the demands placed on physicians whose practices include treatment of trauma victims. Such physicians deserve to be fairly compensated when they are required to spend time away from their medical practice to participate in the legal process. By requiring fair treatment of physicians, the proposed rule will ameliorate the reluctance of members of the medical community to serve our citizens who have the misfortune of being injured by the negligence of others.

I urge the justices to approve the proposed rule.
Richard Langerman
Kurt Maahs

19 May 2014 12:51 PM
Kurt D. Maahs
Phillips Law Group PC
3101 N. Central Ave. Ste. 1500
Phoenix, AZ 85012-2681

Dear Justices:

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 their professional rate for time testifying in deposition and at trial. I have represented plaintiffs and defendants in personal injury matters for nearly 20 years. After Gama ruling, I have seen some defense attorneys subpoena every treating provider for a deposition at the defense lawyer's office. Prior to Gama, attorneys would work together and pay a physician for his time. These depositions were usually held at the doctor's office to minimize the inconvenience to the physician's practice. This was the the practice for many years until the Gama decision. A primary care physician or chiropractor is now paid $12 plus a small mileage fee for an afternoon of seeing patients. Not surprisingly, physicians are telling people that are injured due to the fault of another that they will no longer treat them. The proposed amendment is fair and equitable. It also codifies the common practice that was in place for years before the Gama ruling. It is important for the medical community and the legal community to work together to aid in the administration of justice.

Unfortunately, the current state of affairs is tilted against injured persons making claims. Doctors hired by the defendants are always considered "experts" and are able to charge their hourly deposition fees of $500 to $1500. The medical personnel that actually treat the injured person is limited to $12. This is an inequity that must be remedied.

19 May 2014 01:01 PM
Frederick Curtis Berry, Jr.
3101 N. Central Ave., Ste. 840
Phoenix, AZ 85012-2679

Frequently I am retained as a standard of care expert witness in insurance bad faith and insurance marketing malpractice litigation. As such, I believe my expert witness fees are protected by Rule 26(b)(4)(C), Ariz. R. Civ. Pro.

Treating physicians and other health care providers, however, may not be specially retained experts but, nevertheless, are specially trained and educated experts. Unlike me and other "experts" who hold themselves out to give depositions and testify in trial, their expert time is not presently protected. As A. Lincoln said, "Time is a lawyer's stock in trade." The same is true of physicians who in fairness should be paid a reasonable expert witness fee whether they are specially retained or find themselves having to testify arising out of providing a physician's service.

I 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 their professional rate for time testifying in deposition.

19 May 2014 04:01 PM
Shawn J. Dow, Esq.
Pincus & Associates, PC
2133 E. Warner Rd. Suite 101
Tempe, AZ 85284

I am writing in support of Petition R-13-0042 Rule 26(b)(4)(C), Ariz.R.Civ.Proc. I have practiced in the area of Personal Injury law for approximately five years. With the current state of the law, a procedural disadvantage exists for accident victims.
Outside of the procedural disadvantage for accident victims, the current law causes long-term harm by limiting the number of medical providers for accident victims to those willing to endure a deposition on their free time. To make matters worse, the law exacerbates the already all-too-common problem of medical providers turning away accident victims because of the fear of being drawn into a lawsuit.
On a professional level, I am embarrassed that the current law allows for the monetary determent of other professionals such as treating doctors. Unlike lay witnesses, treating doctors can and will be questioned about their “special knowledge” without the benefit of compensation as long as the questions constitute a factual inquiry.
In all, I respectfully request that the court adopt the proposed amendment.

19 May 2014 04:08 PM
Jeffrey D. Scott, M.D.
Board Certified Physical Medicine and Rehabilitation
Palo Brea Pain and Rehabilitation, PLC
P: (602) 368-3600 F: (602) 368-3235

Dear Supreme Court Justices:

As a member of the medical community, I thought it important to personally weigh in on this matter and support the amendment. I spend the majority of my time as a treating physician but have also served as an expert witness, both of which have resulted in depositions and trial testimony. As a treating physician, I have never been asked questions that limit my testimony to statements of a “fact witness as defined in the Court of Appeals opinion in Sanchez v Gama. In every case I am asked to draw conclusions and express opinions on relevant medical issues in a medical-legal setting. Other than a rote regurgitation or reiteration of the existing medical file, medical testimony must include conclusion and opinion in order for it to have any substantive value to either party.

Without this petition, my testimony as a treating physician would be provided under only duress if I am unable to be compensated for my time away from my practice. Furthermore, who would decide when a question exceeds the bounds of fact versus expert witness? Once that line is breached, then what will happen? I for one would be certain to analyze every question and limit my responses to fit the definition of a “fact witness.” The entire medical community will feel the same way. As a practical matter, what physician is going to want to be subject to this process?

The function of a physician is to take basic facts and formulate conclusions and opinions. This Is how differential diagnoses and treatment plans are developed. In the words of the Court of Appeals in Sanchez v Gama, this is the definition of an expert witness only if it’s done in the context of a medical legal setting?! Physicians function as expert witnesses every day in a clinical practice by this definition. To assign the definition of an expert only when it’s provided in a medical legal setting is absurd.

Lastly, let me respond to the Court of Appeals opinion and be the first to provide a logical explanation why physicians should be awarded a “reasonable fee” when other classes of professionals or laborers may not. Physicians are not providing a service like other professionals or laborers, they are providing an entitlement. Health care has been assigned as an entitlement benefit for everyone in this country. In an effort to make the right to health care affordable, physician fees are reduced, controlled, monitored, and regulated with additional anti-trust and anti-kick-back laws to limit the profit a physician can take from a societal entitlement. If I lose clinical time, I cannot raise my fees unlike other professionals to recoup the lost time and operating expenses. If I am taken away from the clinic, how would that time loss be compensated? This will only add acrimony to an already perceived contentious environment in which most physicians do not want to participate as is. In summary, without this amendment, Sanchez v Gama threatens the viability of the medical community to treat personal injuries.


Jeffrey D. Scott, M.D.

Neal Thomas

19 May 2014 04:19 PM
Neal B. Thomas
Thomas Thomas & Markson PC
2700 N. Central Ave. Ste. 800
Phoenix, AZ 85004-1185

As is typical this rulemaking dispute seems to fall along Plaintiff/Defendant lines. This is unfortunate. Experts get paid for expert opinion. Lay witnesses tell what they saw or experienced. The "special treatment" afforded doctors should not be permitted. The same claim of compensating physicians could be applied to items such as needed car repairs as a simple illustration.

Frankly, Medical testimony is exhorbitant when the " causation" opinion need be in most cases no more than a note in the chart. Moreover, physicians need to give solid treatment and not be well paid for defending their peripheral practices. Offering and being paid for "opinions" is not altered.

As the court in Sanchez noted labels are not important the substance of the testimony is controlling. The "custom and practice" was for the ease of the Plaintiffs Bar and to the detriment of Defendants and,let's face it the real target,insurers. Someone took on a distinction often discussed and never litigated. A "practice" for efficiency outside of the rules is no reason to change the rule.

What about the all to common practice of PI attorneys designating all treating physicians as "experts"? True expert opinions are not subject to Sanchez. Indeed, generally, lay testimoy comes in as part of a medical record and no time need be spent with "lay doctors". Disclosure of "experts" will allow for treatment of as experts. This discovery cottage industry has gone on w/o "regulation" until Sanchez finally stated the obvious. Lay opinion is not to be compensated.

Also, what is not often stated is special damages can effect the evaluation of general damages. Any overlap will inflate damages requested and more importantly in any event passes a cost for lay testimony onto defendants and insurers in the end even if the form of a statement of costs. Cleary, medical industry and plaintiffs bar proponents want another pocket to pick. Lay medical testimony is no better or worse than other lay testimony and should not be singled out. Perhaps with Sanchez there will be more efficient medical claims handling and less overreaching.

We could surely "brief" this matter and argue tit for tat. An emergency petition is not such a place. The carve out for special witnesses is not needed. Doctors take an oath to treat and whether opinion is needed should be treated differently. There should be no confusion between obtaining lay testimony and expert testimony.

19 May 2014 04:43 PM
Arizona Association of Defense Counsel (AADC)
Counsel for AADC:
Charles M. Callahan
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012

Opposition to Petition to Amend Rule 26(b)(4)(C)

The AADC submits that the proposed amendment (1) is not grounded in good public policy, (2) is incompatible with the sound reasoning set forth in the Sanchez decision,1 (3) would at a minimum be constitutionally suspect, (4) would unwisely increase litigation expenses and access to the courts, and (5) would be contrary to the interests of the clients represented by members of the Petitioner organization.

See Opposition Brief, attached.


19 May 2014 05:42 PM
Dr. Mike Papamatheakis
1945 W. Dunlap Ave., Suite 10
Phoenix, AZ 85021

Please add me to the list in support of R-13-0042 petition to amend rule 26(b)(4)(C), ariz. r. civ.p.

Our offices serves many personal injury clients and the thought of being paid 12$/day is insulting. This rule would cause harm to many of our existing patients as I would not be available to serve them on days that i would be called to testify. Please consider the damage this would cause my current patients.

If a treating doctor should be called to testify he should be adequately compensated. 12 dollars a day is not a fair compensation.

Thank You

Dr. Mike


19 May 2014 07:12 PM
Michael Gary Kelley
Thomas Thomas & Markson PC
2700 N. Central Ave., Ste. 800
Phoenix, AZ 85004-1185

There is no need to change the Rules on such an expedited basis. All of the scenarios should be carefully considered, including the potential for abuse and injustice.

As the Court may know, the standard practice of most personal injury attorneys is to designate all treating physicians as "experts", despite the fact that they will likely only call one of the physicians as an expert at trial. This may include emergency room physicians, chiropractors, nurses, and surgeons. Many of these physicians have evidence regarding statements made by the Plaintiff, the Plaintiff's subjective complaints, and the Plaintiff's appearance after an accident. None of this testimony falls into the category of "expert" testimony. Any change to the current rule would require Defendants to pay an expert witness fee to a nurse, chiropractor, or any other individual who will mostly be giving fact testimony regarding their conversations with the Plaintiff and their observation of the Plaintiff during treatment.

Additionally, in most accident cases the treating physician has an incentive to cooperate with Plaintiff's counsel and provide testimony at trial because they have a lien against the Plaintiff's recovery. However, if called by the Defendants, the same physician will require payment of expert fees, which in some cases exceed the original charges. For example, a chiropractor may be paid $180 per hour to treat a patient, but charge $700 per hour to provide testimony. The same physician who will testify for free for the Plaintiff will charge thousands of dollars if called to testify by the defense. The only true way to avoid the physician from making this inequitable decision is to follow the Sanchez opinion and only reimburse the physician as an expert if he or she is providing expert testimony.

The first Rule is most often forgotten, but is applicable here: "[The Rules] shall be construed to secure the just, speedy, and inexpensive determination of every action." Ariz. R. Civ. P. 1. Allowing fact witnesses to charge an expert fee just because they are a treating physician runs afoul of this rule.

19 May 2014 08:57 PM
Thomas G. Kelly, III
201 W. 2nd St.
Yuma, Az. 85364
Bar Number 4703

I have practiced personal injury law in Arizona for 30 years. I am writing in support of R-13-0042 because many doctors refused to see their patients who were injured in traffic accidents before Sanchez v. Gama. Now, I fear, no doctors will want to treat accident victims. My clients are victimized when they suffer an injury in a traffic accident and will be further victimized when their doctor refuses to treat them because he knows that the legal system will not compensate him fairly. It is unfair to both doctors and their patients. It is very important for this court to approve this rule.Your consideration in this matter is appreciated.

19 May 2014 11:49 PM
David C. Potts
Jones, Skelton & Hochuli, PLC
2901 N. Central Ave., Ste. 800
Phoenix, AZ 85012
(602) 263-4547

I am writing in opposition to R-13-0042 Petition to Amend Rule 26(b)(4)(C), Ariz. R. Civ. P.

First, a number of commenters have claimed that [i]Sanchez v. Gama[/i] will increase costs or shift costs from defendants to plaintiffs. How? If anything, this decreases costs for both Defendants and Plaintiffs -- Defendants as they will not incur the expert fees associated with deposing treating physicians and Plaintiffs as they will not incur those expert fees as taxable costs if they lose at trial or fail to beat an offer of judgment.

Second, multiple commenters have suggested that, it "is a basic principle that anyone who is asked to provide a service, that is within the realm of their livelihood, ought to be paid for their time." But this rule doesn't do that for everyone -- it only does that for treating physicians, ironically one of the groups least in need of charity. Mechanics, chemists, police officers, firefighters, plumbers, and accountants may be called to testify about work they've done "that is within the realm of their livelihood," yet they are excluded from this rule. Ignoring any potential constitutional concerns, it is just wrong to treat an entire professional class categorically differently from all others.

Given these serious defects and inequalities, this Petition should not be granted.
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