"This case presents issues of first impression regarding the proper scope of discovery into an expert witness's purported bias." Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), attached official Slipsheet Opinion Paragraph 1. In that case, a Policyholder-Insured sued her UM/UIM Carrier for breach of contract and alleged Bad Faith. She caused a subpoena duces tecum to be issued on the Defendant Insurance Company's physician-Expert Witness. She also claimed that the doctor was biased in favor of the Insurance Company and against her. The subpoena served upon the Expert Witness in that case demanded that the doctor "produce extensive documentation." Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), Paragraph 6.
The Plaintiff-Policyholder had not yet deposed the Expert in that case. The Arizona Appellate Court also pointed out that in that case, the Plaintiff had not made an attempt to obtain "bias-related information" from the Expert other than by serving him with the Subpoena Duces Tecum at issue. The Plaintiff's announced purpose of this discovery, the Appellate Court recalled, was in fact to obtain "bias-related information". Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), paragraph 19. The Trial Court ordered the Expert to provide the "extensive documentation" demanded by the Plaintiff's Subpoena. It included financial information and other documentation that went far beyond the discovery and reporting requirements imposed on Expert Witnesses under the Rules of Civil Procedure.
In fact, the Trial Court's Order greatly expanded the timeframe for which the Plaintiff-Policyholder's Subpoena demanded that the Expert produce documents. "For reasons not explained by the record, the court instead ordered Dr. Zoltan to produce documentation 'for the period of five years preceding the date of the accident to the present," or for the period of nine (9) years before the appellate decision. Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), paragraph 17.
In addition, the Expert Witness in that case acknowledged that he was subject to being deposed, that he would be filing a Report, and that in short he had to meet the discovery and reporting burdens imposed on Experts under the Rules of Civil Procedure. Nothing in the record indicated that the Expert was reluctant to meet or resistant to these burdens. Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), Paragraph 27.
The Arizona Court of Appeals vacated the Trial Court's Order compelling the subpoenaed production from this Witness, and remanded after stating this holding:
We vacate the challenged portions of the superior court's discovery order and remand this matter for further proceedings consistent with this opinion, including an assessment of whether Allo [the Policyholder-insured] has explored less intrusive discovery and, if so, whether she can demonstrate good cause for more expanded inquiries. The [trial] court shall also impose a more reasonable time frame for any disclosures ordered on remand.
Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), Paragraph 30.
Expert Witnesses in Insurance Cases are examined in Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Second Edition Shepard's/McGraw-Hill, 2009 Supplement West Publishing Company), particularly ยงยง 8:17, 9:6, and 12:18 among many others. A related post concerning this new decision was published yesterday on Insurance Claims and Bad Faith Law Blog.
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