• Plaintiffs and Defendants Need to Hire Expert Witnesses With Care
  • November 27, 2017 | Author: Heather L. Bohnke
  • Law Firm: Gust Rosenfeld P.L.C. - Tucson Office
  • The Arizona Supreme Court made it clear in its opinion issued last week in the case of Rasor/Miller v. Northwest Hospital, LLC that a plaintiff risks an adverse ruling on a motion for summary judgment if its standard of care expert fails to meet credential and clinical experience requirements. The Court also indicated that defendants do not need to challenge a preliminary expert affidavit as a prerequisite to filing a motion for summary judgment.

    Although this ruling favored the defendant, it shows that all parties - plaintiffs and defendants - need to select their expert witnesses with care to ensure that they meet the credential and experience requirements of A.R.S. §12-2604.

    In Rasor, the plaintiff alleged malpractice by ICU nurses. However, the plaintiff's preliminary expert affidavit came from a wound care nurse with little experience in the ICU. The defense did not challenge the preliminary affidavit, but instead filed a motion for summary judgment. The trial court granted the motion, noting that the nurse expert was not in the same specialty and had not devoted the majority of her practice to ICU nursing during the year before the subject incident, as required by A.R.S. §12-2604. The Court of Appeals reversed, agreeing that the nurse expert was not qualified, but remanding with instructions to allow the plaintiff to find a new expert.

    On appeal, the Arizona Supreme Court held that the trial court was required to permit a plaintiff to cure an expert deficiency with the provision of a new expert only during the preliminary phases of litigation. However, once the defendant files a motion for summary judgment based on the lack of a qualified expert, the trial court may, but is not required to, grant the plaintiff additional discovery time to respond to the motion for summary judgment as long as the procedures in Ariz. R. Civ. P 56(d) (formerly 56 (f)) are followed. This leave of court may include allowing the disclosure of a new expert.

    View the Rasor/Miller v. Northwest Hospital, LLC (CV-16-0134-PR) opinion here.