We blogged the Court of Appeals Opinion here; go there first.
The Supreme Court affirms that the witness was not qualified as a standard-of-care expert: “We . . . hold that, pursuant to § 12-2604, an expert is unqualified to testify on standard of care if she did not engage in active clinical practice or teaching during the year immediately preceding the injury.” And it affirms the challange: “We hold that a defendant may move for summary judgment based on a proposed expert’s lack of requisite qualifications under A.R.S. § 12-2604 without first challenging the sufficiency of the expert affidavit under A.R.S. § 12-2603.” “[T]he proper recourse for a plaintiff whose expert’s qualifications are challenged for the first time in a summary judgment motion is to seek relief under Rule 56(d).”
However, the court vacates the portions of the Court of Appeals’ opinion remanding to allow Plaintiff to find a new expert. Its own disposition might allow that — the court says that that was justified because prior decisions on the relationship between 2603 and 2604 were in conflict and because the trial court had repeatedly told Plaintiff that she could use the expert on standard-of-care. But it adds a wrinkle. There were quesitons, apparently argued in the Court of Appeals, about whether a causation expert was necessary and, if so, if Plaintiff’s expert qualifed as such. The Supreme Court remands to the Court of Appeals to decide those things. If an expert is necessary and Plaintiff’s doesn’t qualify then the Court of Appeals “should affirm the trial court’s grant of summary judgment.” Otherwise, that court “should remand to the trial court to provide Rasor an opportunity to file a Rule 56(d) motion and for any other appropriate proceedings.”