"This case presents issues of first impression regarding the proper scope of discovery into an expert witness's purported bias." Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), attached official Slipsheet Opinion Paragraph 1. In that case, a Policyholder-Insured sued her UM/UIM Carrier for breach of contract and alleged Bad Faith. She caused a subpoena duces tecum to be issued on the Defendant Insurance Company's physician-Expert Witness. She also claimed that the doctor was biased in favor of the Insurance Company and against her. The subpoena served upon the Expert Witness in that case demanded that the doctor "produce extensive documentation." Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), Paragraph 6.
The "extensive documentation" was ordered by the Trial Court. It included financial information and other documentation that went far beyond the discovery and reporting requirements imposed on Expert Witnesses under the Rules of Civil Procedure.
In addition, the Expert Witness in that case acknowledged that he was subject to being deposed, that he would be filing a Report, and that in short he had to meet the discovery and reporting burdens imposed on Experts under the Rules of Civil Procedure. Nothing in the record indicated that the Expert was reluctant to meet or resistant to these burdens. Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), Paragraph 27.
The Arizona Court of Appeals vacated the Trial Court's Order compelling the subpoenaed production from this Witness, and remanded after stating this holding:
We vacate the challenged portions of the superior court's discovery order and remand this matter for further proceedings consistent with this opinion, including an assessment of whether Allo [the Policyholder-insured] has explored less intrusive discovery and, if so, whether she can demonstrate good cause for more expanded inquiries. The [trial] court shall also impose a more reasonable time frame for any disclosures ordered on remand.
Download American Family Mut. Ins. Co. v. Hon. Larry Grant (Ariz. Ct. App., Div. One, Opinion Filed October 8, 2009), Paragraph 30.
Expert Witnesses in Insurance Cases are examined in Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Second Edition Shepard's/McGraw-Hill, 2009 Supplement West Publishing Company), particularly ยงยง 8:17, 9:6, and 12:18 among many others.
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