American Family Insurance v. Grant (CA1 10/8/09)

This special action involves an issue that personal-injury lawyers run into all the time.  The court calls it an issue of first impression, though, and maybe it is. The question is how extensively you can discover into an expert’s life to try to show bias.

Lauren Allo had a UIM claim against AmFam arising out of a motor vehicle accident. It hired a doctor to review her medical records. He decided that many of her problems were pre-existing or unrelated. AmFam apparently denied the UIM claim. Allo sued for bad faith. She subpoenaed the doctor’s reports, correspondence, tax returns, financial statements, etc., for the prior 3-5 years. AmFam objected, though it agreed to produce all files the doctor examined for this case, lists it assumed it kept (as most experts do) of past cases he had worked on, and some other information. The trial court ruled that Allo was entitled the doctors IME reports for five years prior to the accident – which would mean nine year’s worth, the amount of his fees in each of those cases, and the requested financial/tax data.

The Court of Appeals accepted AmFam’s special action, finding that the issue is of statewide importance and is one on which  trial courts have disagreed (which perhaps admits that most judges, unlike this one, craft a ruling that people can just about live with).

The court said that although evidence of an expert’s potential bias is admissible, and although a litigant has a right to develop such evidence, these rights are balanced against the witnesses’ rights to be free from burdensome and intrusive discovery and the court’s right to prevent expensive, time-consuming discovery that serves no useful purpose.

The court first quickly ruled that the nine-year period – which was longer than the subpoena had requested – was too long. There was no support in the record for it. The opinion cites authority from other states approving 3-5 year time frames.

As for the substance of the subpoena, the court said that there is an obligation to try less intrusive forms of discovery first. Some jurisdictions, it says, require that the expert’s deposition be taken first (Allo hadn’t taken it), though the court said that this is not a requirement in Arizona. A subpoena may be used first but it cannot be overbroad. Relevant to this is whether the discovering party is able to obtain bias evidence in some other way; in this case, Allo had information from the Trial Reporter, some of the doctor’s prior depositions, and discovery from another case in which the doctor gave information about his income from IMEs.

The court refused to draw any bright lines regarding what information could and could not be obtained. But it expressly agreed that some courts had gone too far in allowing this sort of discovery when it merely produces more detail about things that simple cross-examination could make plain to a jury.

The court also thought it significant that AmFam and the doctor were basically willing to provide much of this information, though in less-intrusive form. On the other hand, it acknowledged that sometimes your discovery has to be detailed in order to get results.

The bottom line is that this sort of discovery is allowable “only in the most compelling of circumstances, and only after less intrusive means of obtaining bias-related evidence have been explored.”

And now for something completely different. We’ve griped about this before but there’s no reason not to do so again. The first named defendant in this special action, pursuant to the rule, is the judge, “The Honorable Larry Grant.” When the court sends out notice of the case, though, this is reduced to “Hon. Grant.”

What member of the legal profession could possibly believe that that is a graceful or appropriate way to refer to a judge? But the court didn’t, as we recall, used to do that, which means that somewhere, at some point, for some reason, somebody made an actual decision to do it that way. Surely it takes a closeted, clerical bureaucrat to believe that a judge would be offended by seeing only his last name in the caption or that “Hon.” is just a dandy abbreviation. Why is it acceptable to use just last names for everybody except “hons?”

Look, folks, here’s the deal: “the honorable John Doe” is the way to say it, and the only way. It’s not ‘honorable John Doe” or “honorable Doe” or “honorable John.” There is no slightest thing wrong with calling the case “Allo v. Grant.” The only lawyers who don’t know that are the same ones who address a judge on the bench as “judge,” a rude barbarism we used to expect only from pro se parties and criminal defendants.