Arizona Court of Appeals Division One Holds That a Treating Physician’s Testimony Regarding Diagnosis, Treatment, and Prognosis of His or Her Patient is Not Expert Testimony Simply Because It Draws Upon the Physician’s Skill or Training.

Heydy Hernandez and Santiago Sanchez were involved in a car accident in Scottsdale.  Hernandez sued Sanchez for personal injury damages, including chiropractic treatment.  Hernandez listed Injury Chiropractic as a witness to testify regarding his injuries and treatment.  Hernandez also listed Injury Chiropractic as an expert witness to testify, as his treating physician, “to the injuries and medical treatment and anticipated medical treatment.”  Dr. David Hobbs was the treating chiropractic physician.  Sanchez subpoenaed Dr. Hobbs to take his deposition.  After Dr. Hobbs filed a motion to quash, Judge Gama held that Dr. Hobbs was an expert under Ariz. R. Civ. P. 26(b)(4)(A) & (C) and ordered his fees to be paid, and an arbitrator issued a similar ruling.  Sanchez sought special action relief and the Court of Appeals accepted special jurisdiction, explaining that a lack of guidance in this area had resulted in conflicting superior court decisions. 

To support his position, Sanchez relied on a criminal case, Montgomery v. Whitten, 228 Ariz. 17, 262 P.3d 238 (App. 2011).  In Montgomery, the court discussed the differences between a fact witness and an expert witness.  Noting that physicians should not be compensated as experts merely because their testimony requires specialized knowledge, the court explained that a fact witness was one who acquired information independent of the litigation and whose knowledge was derived from the five senses.  Expert witnesses, on the other hand, are required to review records or testimony of another health care provider or opine about treatment provided by another physician.  An expert may receive hypothetical questions, whereas a fact witness testifies as to what he or she actually saw.  The Court of Appeals explained that Dr. Hobbs was not retained in anticipation of litigation, but, rather, would testify as to the facts of his treatment.  The Court further noted that Montgomery was consistent with another appellate decision that held that a plaintiff’s treating physician is not an expert under Rule 26(b)(4), and rejected Dr. Hobbs’s arguments that such a reading would render Rule 30 meaningless. 

The Court also rejected Dr. Hobbs’s assertion that Montgomery was not applicable because it was a criminal case and because a footnote stated that “[n]othing in this opinion, though, should be read as affecting disclosure obligations or witness compensation issues in civil cases.”  The Court explained that not only do civil litigants have the right to defend themselves in court by gathering relevant facts, but a court’s choice to limit the application of a particular decision also does not automatically preclude later courts from applying the principles in another context.  Moreover, a majority of the supporting cases cited in Montgomery were civil cases, and other jurisdictions have reached similar conclusions.

Finally, the Court rejected Dr. Hobbs’s argument that Rule 26(b)(4)(A) and (B) require reasonable payment to two types of experts: one whose opinions are presented at trial under Rules of Evidence 702 and 703 and one who is specially employed and will not testify.  Both evidentiary rules only address expert witnesses, not fact witnesses.  Dr. Hobbs does not qualify as an expert under Rule 26(b)(4)(A) because, while listed as an expert, the description of his “expert” testimony was no different than that of his fact-based witness testimony.  And Rule 26(b)(4)(B) does not apply because Dr. Hobbs was not retained in anticipation of, or preparation for, litigation.  Furthermore, the Court of Appeals did not want to carve out a special exemption for physicians as de facto paid expert witnesses while excluding other professions.  The Court concluded by noting that whether a physician is an expert will often depends on the individual circumstances and questions presented, and stated that it would rely on the trial court’s discretionary powers to determine when expert testimony is being solicited. 

Judge Thompson authored the opinion; Presiding Judge Gemmill and Judge Kessler concurred.