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Evidence: Rebuttal Expert Witnesses—One Expert Per Issue/Cumulative

Posted by Ted A. Schmidt | Jun 19, 2017 | 0 Comments

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Nevens v. AZHH, LLC, 766 Ariz. Adv. Rep. 19 (App. Div. I, May 30, 2017) (J. Downie)

REBUTTAL EXPERT ADDRESSING CAUSATION ISSUE NOT ADDRESSED IN CASE IN CHIEF ALLOWED/LOSS OF CONSORTIUM OF PARENT DOESN'T REQUIRE CATASTROPHIC INJURY

Plaintiff sued the Arizona Heart Hospital [AZHH] as a vulnerable adult for negligent nursing care resulting in bed sores. Plaintiff called an internal medicine doctor specializing in infectious disease as her causation expert. He opined that the bed sores were preventable with proper nursing care and deferred on vascular issues.

The defendant's causation expert was a vascular surgeon who testified the bed sores were caused by a vascular health problem wholly unrelated to the nursing care. Plaintiff then offered a vascular surgeon expert as a rebuttal witness.  The court granted defendants' motion to preclude plaintiff's rebuttal witness on the basis his testimony was cumulative.  The defendant argued in closing that plaintiff failed to prove her case because she failed to call a vascular surgeon to address the defense vascular surgeon's causation opinions.

After a nine day trial the jury returned a defense verdict.  Plaintiff's motion for new trial was denied and this appeal followed. The Arizona Court of Appeals found prejudicial error in the trial court's preclusion of the plaintiff's rebuttal witness.  Reversed and remanded.

The court of appeals found that while there may have been some testimony from plaintiff's rebuttal vascular surgeon expert that would rightfully be precluded as duplicative of the internal medicine doctor's testimony in plaintiff's case in chief, his opinions regarding the absence of a causative link between the bed sores and a vascular problem was not duplicative and should have been allowed. 

The court made note of the fact that the defense appeared to have been laying in the weeds on this issue. While other witnesses were objected to in the Pretrial Statement as duplicative, there was no objection raised in the pretrial concerning plaintiff's right to call the vascular surgeon.  In fact, this issue was not raised until the fifth day of trial when the witness was about to be offered. 

The court further held that a child seeking damages for loss of consortium with a parent need not prove catastrophic injuries; it is the injury to the normal relationship between parent and child that should be the focus.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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