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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

20 May 2014 08:30 AM
Sherman Joyce
American Tort Reform Association
1101 Connecticut Ave NW
Suite 400
Washington DC 20036
414214 (Admitted to DC Bar)

I am writing on behalf of the American Tort Reform Association (ATRA) to express our opposition to the suggested changes to Rule 26 (b) (4) (c) of the Arizona Rules of Civil Procedure. ATRA, founded in 1986, is a broad-based bipartisan coalition of more than 300 businesses, corporations, municipalities, associations, and professional firms that have pooled their resources to promote reform of the civil justice system with the goal of ensuring fairness, balance, and predictability in civil litigation.

ATRA strongly urges the Commission not to adopt the proposed changes to Rule 26 (b) (4) (c) of the Arizona Rules of Civil Procedure. By requiring parties to pay physicians who testify to the facts surrounding treatment the same fee as expert witnesses, Arizona would become an outlier when examining the national landscape. The rule would place Arizona far outside the rules of other state courts and would place an increased burden on parties to pay for testimony that is necessary to the fair resolution of litigation. This is a burden that is not present in other states and would have a negative impact on Arizona’s legal climate.

Most states, including Arizona, have adopted a version of the federal rules of civil procedure and the state statutes are very similar to Arizona Rule 26 (b) (4) (c), in its current form. More specifically, New Mexico, California, Utah and Colorado’s rules on expert testimony discovery all model the federal rules, and their statutes simply reimburse fact witnesses for expenses incurred in discharging a civic duty under a statutory regime. No distinction is made between the professions or careers of the witness – only their capacity as expert or fact witnesses, and if they will be or may be providing evidence at trial.

Thomson West’s Corpus Juris Secundum (CJS), an encyclopedia of American federal and state law, addresses witness compensation through sections 70 and 85. The CJS states that the right of a witness to compensation is statutory since there was no such right at common law as factual testimony in controversy is considered a civic duty. The CJS characterizes the witness compensation statutory provisions as intended to pay expenses while away from home, not compensate an individual for wages that could have otherwise been earned during that time.

It is inappropriate to compensate treating physicians as expert witnesses because of the difference in the nature of their testimony. Treating physicians offer factual testimony about information that is essential to the facts of litigation, whereas an expert witness delivers testimony based on his or her medical opinion. A medical fact witness does not need additional time to prepare to answer questions separate from reviewing his or her own medical records that were written during the normal course of business. The treating physician’s facts and opinions delivered in his or her testimony are not developed in anticipation of litigation, unlike expert witness testimony that is prepared based on the case at hand. Expert witnesses require compensation because they must review the work done by other doctors and familiarize themselves with the facts of the case. Additionally, explaining medical terms and educating jurors does not constitute expert testimony and should not be treated as such.

Carving out an exception from the general rule for doctors sets an unwise precedent. Why should a treating doctor be compensated differently than an ordinary fact witness when his or her testimony is based on his or her participation in the subject matter of the lawsuit? They should be treated the same as any other fact witness, because who is to say that a similar exception should not be created for other professionals who testify to the facts of a case, such as engineers, architects and the like.

Finally, the petition warns that if this rule is not adopted by the Commission, doctors will refuse to treat patients due to their fear of being involved in litigation. This is a misguided and incorrect assumption. There is no risk of doctors declining care to patients who may be involved in litigation at a later date. It is not occurring in Arizona, or anywhere else in the country, and states have been operating under the current rules for decades. It is irrational to believe that doctors would ignore their professional responsibility simply because they want to avoid the possibility of having to testify in court.

It is for these reasons that ATRA strongly urges the Commission to not adopt the proposed changes and maintain the state’s reasonable status quo.
jon zoltan

20 May 2014 12:11 PM
Jon Zoltan, MD
2222 E. Highland
Phoenix. AZ 85028

During a deposition or a court proceeding all participants are paid a fair compensation for their services, whether they be the court reporter, bailiff, judge, or expert. The proposed maximum reimbursement selectively penalizes the treating physician or the medical expert. Such a limitation of reimbursement wiil uniformly stifle medical expert participation for the plaintiff or defense side. I support the petition to amend Rule 26.

20 May 2014 02:03 PM
Dale W. Robinson
Roninson & Allen PLC
48 N. Macdonald St.
Mesa, AZ 85201-7329

I want to add my comment to the many comments on this important issue. I have practiced on both the defense and the plaintiffs' side of personal injury cases for over 25 years. It has already been the case for many years that Plaintiffs at times have difficulty finding doctors willing to treat them for injuries suffered in accidents.

Unfortunately if treating doctors are also forced to testify without being compensated for the time this takes, it will become very difficult for those injured in accidents to obtain medical care.

Basic fairness requires that doctors be compensated a reasonable amount for testifying in injury cases.

I wholeheartedly support this amendment to put things back to where the practice has been for many years.

20 May 2014 03:43 PM
Collin T. Welch
2155 W. Pinnacle Peak Rd., Ste. 220
Phoenix, AZ 85027-1209

I support both the Court’s holding in Sanchez v. Gama and the Arizona Association of Defense Counsel’s Opposition to the proposed rule change. In addition to the arguments already raised, I write separately to add that equal access among litigants to the salient facts of a dispute is a hallmark of our modern disclosure rules and serves the express purpose of early evaluation and possible disposition of the litigation. The proposed rule change will be a step backwards as the attendant increase in costs will chill the complete and accurate exchange of information during discovery. Litigants to injury cases review medical records kept by treating physicians, which are notes open to subjective interpretation by the parties. Evidence is also often presented by plaintiffs through hearsay testimony and disclosures, which are inaccurate for various reasons. Frequently, the resolution of a case is delayed by either party’s misinterpretation of those material facts that have not been previously, clearly stated by the treating physician. Maintaining equal access to fact witnesses like treating physicians will ensure that both plaintiffs and defendants have accurate information to evaluate cases for possible settlement.

The petition for a rule change should be rejected. Thank you for your consideration.

20 May 2014 05:22 PM
Barry D. Halpern (#005441)
Sara J. Agne (#026950)
Joy L. Isaacs (#030693)
One Arizona Center
400 E. Van Buren
Phoenix, AZ 85004-2202
Telephone: (602) 382-6000
Attorneys for Arizona Medical Association

The Arizona Medical Association (“ArMA”) does not view this petition as a “plaintiff” or “defense” issue. ArMA believes that the expectations, impositions on physicians and patients, and financial impact of physician testimony are unique.

Compensation for a treating physician’s testimony is not, as characterized by the AADC, a “privilege.” The decades-old practice of compensating a treating physician for time spent testifying simply recognizes that testimony regarding complicated medical issues is never simply “factual.” If a party simply wanted “facts,” a records subpoena should suffice. It is the physician’s highly specialized knowledge and expertise that is sought in a deposition or at trial – all of which is expert testimony.

The AADC also misses the mark in asserting that the Sanchez ruling would decrease costs. The costs of collateral litigation to determine the distinction between fact and expert witness testimony and the costs to treating physicians attempting to delineate the limits of purely “factual” testimony would both increase. Without the proposed amendment to Rule 26(b)(4), Ariz. Civ. P., a physician would frequently have to hire counsel to advise on the parameters of his or her testimony.

Moreover, the AADC’s contention that a judge would only have to look at a party’s Rule 26.1 disclosure statement to determine whether a witness was a fact witness or expert witness is fatuous. The civil dockets are clogged with lawyer fights over myriad disclosure issues.

For these reasons, in addition to those provided in its Formal Comment, ArMA supports the amendment to Rule 26(b)(4), as proposed in Rules Petition R-13-0042.

20 May 2014 06:31 PM
Jacob Kost
TELEPHONE (602) 272-5289
FAX (602) 272-8634
email pmcinc@cox.net

Please see Message Attachment


20 May 2014 06:34 PM
Peter Grosso D.C.
6544 West Thomas Rd #37
Phoenix, Az 85033

I have been treating patients in Arizona as a licensed Chiropractor since 1988, and have had the good fortune to hep patients with many different types of injuries over the years. Unfortunately, I've experienced increasing problems treating patients that have accident related injuries. The reason for this is simple: defense attorneys have become increasingly disrespectful of
doctors’ time and antagonistic in their approach to gathering information for their cases. Over the years I’ve been involved in more than a few depositions, arbitration's, and jury trial appearances and have witnessed a growing sort of arrogance and unprofessional demeanor to which doctors are subjected, while trying to offer unbiased expert testimony. In my experience one law firm that has led the way in this changing attitude is the Cavanaugh Law Firm, as they recently succeeded in convincing the Court of Appeals to strike down a long-standing standard practice of compensating doctors for their time and expertise. Of course, often times a plaintiff lists a treating doctor as a trial witness and it is necessary for the defense to depose them. However, the practice that I have seen is the scorched-earth deposing of doctors, as well as other staff, regardless of whether the plaintiff plans to call the doctors as witnesses and even in arbitration cases that are supposed to be on a fast-
track. As it was, the Cavanagh Law Firm took advantage as much as possible in summoning doctors such as myself to appear in court proceedings when we were being compensated to some degree, and with the recent Sanchez ruling negating attorneys’ responsibility to pay the treating doctors’ expert witness fees,
they will undoubtedly take FULL advantage of the situation and tie all
doctors up in court as often as they wish for as long as they wish! Other law firms are pursuing the same abusive strategy. The lack of respect, regard or concern for the treating doctor's time affects not only the doctors but their staff and patients, all of whom lose either care or income when the doctor is out of the office and tied up in court. To now remove all monitory consequence to the lawyers pushing this practice will only worsen the effect on doctors and patients and lead to the even more indiscriminate use of the subpoena on doctors to be deposed or appear in court resulting in far less effective treatment for our patients. Meanwhile, the attorneys are still receiving their hourly rates without disruptions or consequences!

It is for these obvious reasons that I petition you to please reconsider this undoing of the previous law that applied an excellent common sense solution which encouraged attorneys not to abuse a doctor's time allowing us to give our patients the level of care they have come to expect and fully deserve.


Peter E. Grosso D.C.

20 May 2014 06:40 PM
Glenn Hamer
Arizona Chamber of Commerce and Industry
3200 N. Central Avenue
Suite 1125
Phoenix, AZ 85012
015777 (inactive)

The Arizona Chamber of Commerce and Industry (“Arizona Chamber”) respectfully submits this comment to express our opposition to Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure. The Arizona Chamber is a nonpartisan, nonprofit organization that is the leading statewide advocate for the Arizona business community. Our diverse membership employs 250,000 Arizonans in all business sectors from manufacturing to services and includes small, medium, and large employers. We are committed to advancing Arizona’s competitive position in the global economy by advocating free-market policies that stimulate economic growth, and protecting businesses from unnecessary and cumbersome legal and regulatory burdens.

By requiring parties to pay treating physicians, who testify to the facts, that same fee as expert witnesses, Arizona would become an outlier compared to other states. The rule would place Arizona far outside the rules of other state courts and would place an increased burden on parties to pay for testimony that is necessary to the fair resolution of litigation. This is a burden that is not present in other states like New Mexico, California, Utah and Colorado and would have a negative impact on Arizona’s legal climate, and therefore Arizona’s business climate and our ability to be competitive in attracting business to our state.

Additionally, Petition R-13-0042 warns that if this rule is not adopted by the Commission, doctors will refuse to treat patients due to their fear of being involved in litigation. This is a misguided and incorrect assumption. There is no risk of doctors declining care to patients who may be involved in litigation at a later date. It is not occurring in Arizona, or anywhere else in the country, and states have been operating under the current rules for decades. It is irrational to believe that doctors would ignore their professional responsibility simply because they want to avoid the possibility of having to testify in court.

For these reasons, the Arizona Chamber strongly urges the Commission not to adopt the proposed changes to Rule 26 (b) (4) (c).

20 May 2014 06:57 PM
Lance A. Gardner D.C.
6544 W. Thomas Rd #37
Phoenix, AZ 85033
Ph: 623-849-1188
Fax: 602-391-2187

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.


20 May 2014 07:01 PM
(FIRM STATE BAR NO. 0003200)

TELEPHONE: (602) 506-3800

20 May 2014 07:47 PM
Jonathan V. O'Steen
O'Steen & Harrison PLC
300 W. Clarendon Ave., Ste. 400
Phoenix, AZ 85013-3424

I support Petition R-13-0042 to amend Ariz.R.Civ.P. 26(b)(4)(C) to ensure fair compensation for treating doctors. I respectfully disagree with the objection lodged by Sherman Joyce of the American Tort Reform Association. Contrary to her claim, injured people often have difficulty finding specialists to treat them following an accident. I often hear from clients who are told by office staff that the physician does not treat accident victims. This problem only will become worse if the Supreme Court rejects this Petition and denies fair compensation to doctors for their time testifying. This will interfere with an injured person's ability to receive quality, affordable medical care.

The ruling in Sanchez v. Gama encourages insurance companies and corporate defendants to take unnecessary depositions of treating doctors who already have authored medical reports regarding the care they provided. Trial courts will be burdened with the responsibility of resolving disputes between physicians and those noticing the doctor's deposition to determine what questions require compensation and what do not. That will unnecessarily increase the expense of litigation, by requiring more work from our courts (and defense attorneys paid hourly to litigate these matters) to the detriment of the "just, speedy and inexpensive determination of every action." See Ariz.R.Civ.P. 1.

It is unfair to expect the cost of Sanchez v. Gama to be borne entirely by treating doctors, while all of the other actors (including attorneys, court reporters, videographers and court staff) are compensated fairly for their time. If a treating doctor's testimony is integral to a case, insurance companies and corporate defendants can afford to compensate these doctors in a fair manner.

21 May 2014 02:03 AM
Barbara T.Brown
1215 E Ruth Ave.
Phoenix Arizona 85020
602 570-0127

May 20,2014

Please accept my strong opposition to the proposed rule, both overbroad and unnecessary, which was crafted to negate Sanchez. While I no longer practice law,I was a civil rights lawyer for many years and am currently representing myself in a wrongful death case with limited funds and am dependent upon the testimony of a treating physician since expert witness fees are prohibitive. As both a former civil rights attorney and current personal injury litigant with limited funds I believe I provide a unique perspective on the ill advised attempt to co-opt Sanchez by scare tactics of purported unintended consequences. I applaud Sanchez not only for the equal treatment it mandates regarding treating physicians as percipient fact witnesses but also for recognition of the artificial barriers to justice that unnecessary litigation costs create. I have long been aware of the importance of the dual concerns of Sanchez including equal treatment of the same class of witnesses and the facilitation of access to the courts which I understand is a primary mandate of the Arizona Supreme Court, well reflected in the Court of Appeals Sanchez opinion which should remain as controlling unless or until the facts and the law before an appellate court or the Arizona Supreme Court in its reviewing capacity deem otherwise based on an expansion of facts or law, and not through unsupported fears of limited access to medical care (absurd in the era of Medicare, Obama care, Accountable Care, and Medical Homes, as well as expanding Eings and free standing Urgent Care facilities etc. In addition,the trial court has ample means at its disposal to deal with discovery abuses such as depositions that are mischaracterized as mere fact witness depositions that are really expert witness depositions, including assessing expert witness fees as well as monetary sanctions. Further the Sanchez criteria for characterizing a witness as that of a treating physician as opposed to an expert witness is in accord with the 9th circuit opinion in Goodman v.Staples, 644 F.3d 817 (2011).

For additional comments see attachment.


25 May 2014 02:23 AM
Allen Earl Stout, DC, RN
Stout Wellness Center
5130 Highway 95
Fort Mohave, Arizona. 86426

To the Arizona Supreme Court:

I am writing in support of R-13-0042. I have treated many patients involved in personal injury cases over the last 20 plus years.

Recently, I have seen medical and casualty industry personnel exploit new rules that allow them to compel physician testimony regarding treatment provided to their patients without paying expert witness compensation. In my case, I have seen the number of depositions/court summons increase dramatically.

It is clear that insurance industry personnel are using the new rules to harass doctors like myself. Forcing us to leave our practices to testify without the usual compensation afforded expert witnesses, causes us direct loss of income that is needed to maintain our finacial viability in difficult economic times. This situation is placing physicians like myself in an ethically dilemma: Do we stop treating patients who may face insurance litigation in leu of other patient to ensure our financial viability (by eliminating frequent unpaid depositions)... or do we continue treating patients that may become involved in insurance litigation and face finacial losses?

I already understand that many medical providers will not treat litigation cases now. Failure to approve R-13-0042 will cause the remaining physicians to follow their colleagues in order to avoid medical and casualty industry personnel exploitation.

For the sake of fundamental fairness and patient safety, the petition should be granted.

Thank you for your consideration.

05 Jun 2014 09:52 AM
Nicholas E. Vakula
The Vakula Law Firm, P.C.
11240 N Tatum Blvd
Suite 120
Phoenix, AZ 85028
Ph: (480) 905-9114
E-mail: vakulalawfirm@aol.com
Fax: (480)905-9113
James Kloss

21 Jul 2014 12:08 PM
James K. Kloss
Phoenix Plaza Tower II
2929 N. Central Ave., Suite 1700
Phoenix, AZ 85012-2761

Doctors are not some special category of people. They should be treated the same as everyone else who may be a witness with relevant testimony. If the president of a company witnesses a car accident, they are subject to being subpoenaed to give testimony. They are compensated at the statutory rate. The fact that they are losing time from running their business that day is just the price paid for being a member of society.

Doctors are not some special breed of person. They are no better, no worse than any other witness and should be treated the same.

The shrill posts by PI lawyers are complaining of a non-existent problem. No doctors are actually refusing to testify or treat patients. That is a completely unverified allegation that is nothing more than a scare tactic.

Further, despite the unfair and inaccurate accusations to the contrary, defense lawyers are not out to depose treating doctors willy-nilly. A treating doctor is deposed in perhaps one PI case in 10, at most. Deposing a doctor carries with it high costs in lawyer fees, which carriers seek to avoid.

This proposal is a bad solution in search of a non-existent problem.
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