The court says this is a case of first impression but this sort of maneuver has been tried more than once before. Lawyers are like that – full of brilliant, new ideas that aren’t either.
Plaintiff sued two doctors for malpractice. He settled with one. The other, Para, promptly named the settling doctor as a non-party at fault, scheduled the deposition of the expert Plaintiff had disclosed against the settlor, and indicated his intention to use that disclosure. In response, Plaintiff announced that he was re-designating that expert as a consultant and he moved for protective order against the deposition. The trial court granted it. The Court of Appeals accepted Para’s special action and reverses.
It doesn’t take the court much time or analysis to conclude that “a party may not reinstate the privileges and discovery protections that apply to consulting experts by redesignating an expert as a consultant once the expert’s opinions have been disclosed.” “Once the party chooses to disclose the expert’s information and opinions, a mere change of label cannot erase the effect of the disclosure.”
But the court also says that “while the opposing party may depose such an expert, the trial judge retains broad discretion under Ariz. R. Evid. 403 to regulate the use of that expert’s testimony at trial.” That’s all it says about that; it doesn’t say what sort of circumstances it has in mind or how the testimony might be “regulated.” Maybe the idea is that the trial court can exclude the fact that the Plaintiff’s lawyer was the one who selected the expert and elicited the opinion. Its typical of our courts to try to tidy up things in advance by throwing out broad hints about issues that are obvious but not before them.