Presented by:

PAUL A. KATZ, ESQ.ASSISTANT ATTORNEY GENERAL

ARIZONA ATTORNEY GENERAL’S OFFICE1275 WEST WASHINGTONPHOENIX, ARIZONA 85007

1. May depose any person identified as an expert whose opinions may be presented at trial – generally not consultant who will not likely be called as a witness.

2. Under exceptional circumstance may discover facts known or opinions held by retained expert in anticipation of litigation or preparation for trial but who is not expected to testify. See Rules 26(4)(B) and 35 (b), Ariz. R. Civ. P. The latter deals with physical and mental health exams.

Rule 26(b)(4), Ariz. R. Civ. P.

(4) Trial Preparation: Experts.  *    *    *    *

(B) A party may through interrogatories or by deposition discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Rule 26(b)(4), Ariz. R. Civ. P.

(1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requestor, within twenty days of the examination, a copy of the detailed written report of the examining licensed professional setting out the professional's findings, including the results of all tests made, diagnoses and conditions, together with like reports of all earlier examinations of the same condition and copies of all written or recorded notes filed out by the examiner and the person examined at the time of the examination, providing access to the original written or recorded notes for purposes of comparing same with the copies. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that such party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician or psychologist fails or refuses to make a report the court may exclude the physician's or psychologist's testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.

(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or psychologist or the taking of a deposition of the physician or psychologist in accordance with the provisions of any other rule.

Rule 35(b), Ariz. R. Civ. P.

Expert disclosure within40 days of issues being joined and continuing duty to update.

Rules 26.1(a)(6) and (b)(1) and (2), Ariz. R. Civ. P.

(a) Duty to Disclose, Scope. Within the times set forth in subdivision (b), each party shall disclose in writing to every other party:

* * * *(6) The name and address of each person whom the

disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.

Rule 26.1(a)(6), Ariz. R. Civ. P.

(b)  Time for Disclosure; a Continuing Duty.

(1) The parties shall make the initial disclosure required by subdivision (a) as fully as then possible within forty (40) days after the filing of a responsive pleading to the Complaint, Counterclaim, Crossclaim or Third Party Complaint unless the parties otherwise agree, or the Court shortens or extends the time for good cause. If feasible, counsel shall meet to exchange disclosures; otherwise, the disclosures shall be served as provided by Rule 5. In domestic relations cases involving children whose custody is at issue, the parties shall make disclosure regarding custody issues no later than 30 days after mediation of the custody dispute by the conciliation court or a third party results in written notice acknowledging that mediation has failed to settle the issues, or at some other time set by court order.

(2) The duty prescribed in subdivision (a) shall be a continuing duty, and each party shall make additional or amended disclosures whenever new or different information is discovered or revealed. Such additional or amended disclosures shall be made seasonably, but in no event more than thirty (30) days after the information is revealed to or discovered by the disclosing party. A party seeking to use information which that party first disclosed later than sixty (60) days before trial shall seek leave of court to extend the time for disclosure as provided in Rule 37(c)(2) or (c)(3).

Rule 26.1(b)(1) and (2), Ariz. R. Civ. P.

Request a scheduling conference and set sequence and deadlines for expert disclosure.

Rules 16(b) and (c), Ariz. R. Civ. P.

Except in medical malpractice cases, upon written request of any party the court shall, or upon its own motion the court may, schedule a comprehensive pretrial conference. At any comprehensive pretrial conference under this rule, except for conferences conducted in medical malpractice cases, the court may:

(1) Determine the additional disclosures, discovery and related activities to be undertaken and a schedule therefor.

(A) The schedule shall include depositions to be taken and the time for taking same; production of documents or electronically stored information; non-uniform interrogatories; admissions; inspections or physical or mental examinations; and any other discovery pursuant to these rules.

(B) Among other orders the court may enter under this rule, the court may enter orders addressing one or more of the following:

(i) setting forth any requirements or limitations for the disclosure or discovery of electronically stored information, including the form or forms in which the electronically stored information should be produced;

(ii) setting forth any measures the parties must take to preserve discoverable documents or electronically stored information; and

(iii) adopting any agreements the parties reach for asserting claims of privilege or of protection as to trial preparation materials after production.

(2) Determine a schedule for the disclosure of expert witnesses. Such disclosure shall be within 90 days after the conference except upon good cause shown.

(3) Determine the number of expert witnesses or designate expert witnesses as set forth in Rule 26(b)(4).

Rule 16(b), Ariz. R. Civ. P.

In medical malpractice cases, within five days of receiving answers or motions from all defendants who have been served, plaintiff shall notify the court to whom the case has been assigned so that a comprehensive pretrial conference can be set. Within 60 days of receiving the notice, the court shall conduct a comprehensive pretrial conference. At that conference, the court and the parties shall:

(1) Determine the discovery to be undertaken and a schedule therefor. The schedule shall include the depositions to be taken, any medical examination which defendant desires to be made of plaintiff and what additional documents, electronically stored information, and other materials are to be exchanged. Only those depositions specifically authorized in the comprehensive pretrial conference shall be allowed except upon stipulation of the parties or upon motion and a showing of good cause. The court, upon request of any defendant, shall require an authorization to allow the parties to obtain copies of records previously produced under Rule 26.2(A)(2) of these Rules or records ordered to be produced by the court. If records are obtained pursuant to such authorization, the party obtaining the records shall furnish complete copies to all other parties at the sole expense of the party obtaining the records.

(2) Determine a schedule for the disclosure of standard of care and causation expert witnesses. Except upon good cause shown, such disclosure shall be simultaneous and within 30 to 90 days after the conference, depending upon the number and complexity of the issues. No motion for summary judgment based upon the lack of expert testimony will be filed prior to the expiration of the date set for the simultaneous disclosure of expert witnesses except upon a showing of good cause.

(3) Determine the order of and dates for the disclosure of all other expert and non-expert witnesses, provided that the date for disclosure of all witnesses, expert and non-expert, shall be at least 45 days before the close of discovery. Any witnesses not appropriately disclosed shall be precluded from testifying at trial unless there is a showing of extraordinary circumstances.

(4) Limit the number of experts as provided in Rule 26(b)(4)(D) of these Rules.

Rule 16(c), Ariz. R. Civ. P.

Ask Court to require written expert reports?

A. Rule 612, Ariz. R. Evid., potentially requires disclosure of any writing used to refresh witness’s memory either: (1) before testifying; or (2) while testifying.

(a)  Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b)  Adverse Party's Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c)  Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or--if justice so requires--declare a mistrial.

 B.Either supply information to expert orally or with documents or records that will be disclosed to opposing parties. May otherwise lose work product privilege.

C. Retention letters or agreements should contain outline of subject matter upon which opinions are desired and questions you want answered and not facts you want expert to assume.

A. Qualified by knowledge, skill, experience, training or education.

B. Specialized knowledge will help trier of fact.

C. Sufficient facts or data.

D. Product of reliable principles and methods.

E. Reliable application of principles and methods to facts of case.

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Rule 703, Ariz. R. Evid.

Daubert and Kumho = reasoning or methodology “Scientifically Valid” – not Frye Test of “General Acceptance”.

Before the 2012 amendment of Rule 702, where the evidence to be provided by the expert consisted primarily of an explanation of the results of the application of a particular scientific technique, the Arizona courts required the scientific technique in question be shown to be reliable and/or generally accepted within the scientific community (the "general acceptance" test). Frye v. U.S., 293 F. 1013 (App. D.C. 1923). In 1993, the United States Supreme Court rejected/abandoned Frye's "general acceptance" test for the admissibility of expert scientific evidence in favor of simply requiring that the trial court make a preliminary assessment of whether the underlying reasoning or methodology employed by the expert is "scientifically valid." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The United States Supreme Court later extended the standards for admissibility announced in Daubert to all forms of expert evidence. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), rejected by Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000). The 2000 amendments to Federal Rules of Evidence 701 and 702 essentially codified the decisions in Daubert and Kumho Tire.

Brief mention of Logerquist, 196 Ariz. 470 (2000).

Initially the Court rules that the trial court had erred in applying the Frye test at all, holding that the Frye test applies only to the use of scientific theories or processes to produce results, and not to testimony or conclusions based on experience and observation about human behavior for the purpose of explaining that behavior.

May want to request pre-trial hearing pursuant to Rules 104(a) and (b), Ariz. R. Evid.

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Rule 104(a) and (b), Ariz. R. Evid.

A. Establish qualifications even if opposing counsel stipulates to the same.

B. Establish lack of bias, i.e. works for plaintiffs and defendants.

C. Ask about subject matter upon which expert has been asked to opine. Rule 705, Ariz. R. Evid., allows opinions without first testifying to underlying facts and data.

Unless the court orders otherwise, an expert may state an opinion--and give the reasons for it--without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.Rule 705, Ariz. R. Evid.

D. Establish grounds for each opinion offered. Have expert discuss facts and data relied upon and have expert discuss inferences and assumptions made.

E. Do not hesitate to refresh recollection, even with a leading question or two if necessary.

F. Warn expert to repeat questions to self on cross-examination prior to answering and to only answer questions asked. Advise your expert to not anticipate where opposing counsel is going.

G. Expert’s body language should be the same on direct and cross examination.

H. Instruct expert (particularly new expert) that his or her testimony is not designed to show how smart they are – stick to the subject matter in issue.

I. Remember you have re-direct examination and closing argument.

A. In respectful manner and only when appropriate review weaknesses in training, education and experience – be careful.

B. Lock expert into factual assumptions made, especially if those facts are in dispute, self-serving to party offering or are erroneous.

C. Do not argue with opposing expert!

1. Not professional and will cause jury empathy.

2. You are not smarter than expert in his or her field.

D. If you represent a defendant, remember your expert will have a chance to critique the validity of the opposing expert’s opinions and/or the facts upon which they are predicated.

E. If you represent plaintiff have your expert critique opposing experts expected opinions or better yet, the false or unreliable facts upon which their opinions are predicated.

F. If opposing expert’s opinions are tangential to issues at bar or not in direct opposition to those tendered by your expert, remember you have rebuttal and closing argument.

G. Do not ask one question too many or that you do not know answer to – you might get burned.