McDaniel and Estate of Haught v. Payson Healthcare Management (7.8.22)

Plaintiff injured his leg in a motorcycle accident and later developed necrotizing fasciitis. He filed suit against some but not all of his health care providers. The Arizona Supreme Court decides: 1) treating physicians can opine on standard of care and not violate the one-expert rule under Rule 26(b)(4)(F)(i); and 2) a defendant dismissed on summary judgment cannot be named as a non-party at fault. The trial court correctly determined both legal issues, but the court of appeals decision ordering a new trial is affirmed because the “undisclosed expert opinions” were not adequately disclosed before trial. The case will be retried because of a lack of disclosure, and the trial court abused its discretion. The Court cites other opinions as examples including Solimeno and Englert. The Court’s footnotes explain what a nonparty at fault is, disclosure obligations on expert opinions, and the last one tells us the Court is not interpreting subpart (ii) of the “rule” allowing a defendant in a medical malpractice case to testify as to standard of care. Each of these points should have easily been made in the opinion or eliminated.

As you may notice, the Court capitalizes its references to the subpart of Rule 26(b)(4)(F)(I) as the “One-Expert Rule.” This gives it an easy reference and identity. The Court concludes, however, by grounding the rule to discretion. A trial court may still exclude cumulative testimony whether from a treating physician or a retained expert. And, the rule is a presumption. “Thus, a plaintiff may be entitled to additional experts under appropriate circumstances to fairly meet a ‘deluge’ of defense expert witnesses.’”

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