State Ex Rel. William G. Montgomery v. the Honorable Christopher Whitten

• Decision Date: 21 July 2011
• Docket Number: No. 1 CA–SA 11–0127.,1 CA–SA 11–0127.
• Citation: 228 Ariz. 17,262 P.3d 238,613 Ariz. Adv. Rep. 44
• Parties: STATE of Arizona ex rel. William G. MONTGOMERY, Maricopa County Attorney, Petitioner,v.The Honorable Christopher WHITTEN, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,Ricky Brett Keahy Martinez and District Medical Group, Real Parties in Interest.
• Court: Arizona Court of Appeals

228 Ariz. 17

262 P.3d 238

613 Ariz. Adv. Rep. 44

STATE of Arizona ex rel. William G. MONTGOMERY, Maricopa County Attorney, Petitioner,

v.The Honorable Christopher WHITTEN, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,Ricky Brett Keahy Martinez and District Medical Group, Real Parties in Interest.

No. 1 CA–SA 11–0127.

Court of Appeals of Arizona, Division 1, Department A.

July 21, 2011.

William G. Montgomery, Maricopa County Attorney By Adam Susser, Deputy County Attorney, Phoenix, Attorneys for Petitioner.David G. Derickson, Phoenix, Attorney for Real Party in Interest Martinez.Snell & Wilmer L.L.P. By Paul Giancola, Brett W. Johnson, Sara J. Agne, Phoenix, Attorneys for Real Party in Interest District Medical Group.Arizona Prosecuting Attorney's Advisory Council By Elizabeth B. Ortiz, Faith Cheree Klepper, Phoenix, Attorneys for Amicus Curiae.

OPINION

DOWNIE, Judge.

¶ 1 Several physicians treated an infant who was admitted to the hospital with mortal injuries. When the State sought to call the physicians as witnesses at the criminal trial of the man accused of murdering the child, the doctors objected that they would be testifying as expert witnesses and demanded to be paid as experts. The superior court ordered the State to compensate several of the physicians as expert witnesses. For the following reasons, we accept jurisdiction of the State's special action petition and grant relief.

FACTS AND PROCEDURAL HISTORY

¶ 2 Seven-week-old Lilliana was admitted to Maricopa Medical Center (“MMC”) after a reported fall from a bed. Testing revealed that Lilliana had suffered a massive brain injury and several skull fractures. She died four days later. Real party in interest Ricky Martinez was charged with first degree murder and child abuse.

¶ 3 More than two dozen physicians and healthcare professionals treated Lilliana at MMC. The superior court ordered eleven MMC doctors to submit to pretrial interviews, which occurred at the offices of real party in interest District Medical Group (“DMG”).¹ After the interviews, the State disclosed that it would call eight of the physicians as trial witnesses.

¶ 4 DMG filed a Motion for Protective Order and Motion for Accommodation. DMG argued, inter alia, that the testimony sought from its physicians was “within the realm of their professional expertise” and “beyond that of a fact witness.” DMG asked the court to order the parties to “compensate its physicians in the amount of $350 per hour for their preparation for, travel to, and attendance at trial.” (Emphasis in original.)

¶ 5 After a hearing, the superior court ordered that six of the MMC doctors be compensated as experts if they are called as trial witnesses. The court denied the State's motion for reconsideration, whereupon the State sought special action relief in this Court.

Special Action Jurisdiction

¶ 6 A special action petition seeks extraordinary relief that is usually granted only when justice cannot be obtained by other means. Nataros v. Superior Court, 113 Ariz. 498, 499, 557 P.2d 1055, 1056 (1976). A primary consideration is whether the petitioner has an equally plain, speedy, and adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); State ex rel. Romley v. Superior Court, 172 Ariz. 109, 111, 834 P.2d 832, 834 (App.1992). We also consider whether the special action petition presents an issue of statewide importance affecting numerous cases. Lind v. Superior Court, 191 Ariz. 233, 236, ¶ 10, 954 P.2d 1058, 1061 (App.1998).

¶ 7 The State cannot appeal from the superior court's interlocutory order. Its petition presents a legal question of first impression and statewide importance that has apparently arisen in a number of criminal cases. In the exercise of our discretion, we accept special action jurisdiction.

DISCUSSION

¶ 8 DMG acknowledges that treating physicians may be called as fact witnesses in criminal cases and that no compensation is due for such testimony. Indeed, treating physicians frequently serve as fact witnesses. See, e.g., Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir.1999) (a treating physician “is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party”); Fisher v. Ford Motor Co., 178 F.R.D. 195, 197 (N.D.Ohio 1998) (“Courts consistently have found that treating physicians are not expert witnesses merely by virtue of their expertise in their respective fields.”); Beaty v. St. Luke's Hosp. of Kansas City, 298 S.W.3d 554, 559 (Mo.Ct.App.2009) (a treating physician “is first and foremost a fact witness” (citation omitted)); Donovan v. Bowling, 706 A.2d 937, 941 (R.I.1998) (testimony by a treating physician is “entirely different from that of an expert retained solely for litigation purposes because a treating physician is like an eyewitness to an event and will be testifying primarily about the situation he or she actually encountered and observed while treating the patient”).²

¶ 9 The State avowed in the superior court that, notwithstanding the broad-ranging questions it posed during the physicians' interviews, it will call the MMC doctors as trial witnesses “strictly regarding what they did to treat this child.” Given this avowal, the question becomes whether the superior court, in ordering the State to compensate six of the physicians, viewed too narrowly the parameters of medical fact testimony. At oral argument, the court opined:

[O]nce you start asking [the physicians] for things that are outside of what a lay person would have been able to testify to, if they were in that position, then they are entitled to be compensated.

So if you are calling a doctor or a nurse just to say, you know, I saw the girl, her face appeared to be blue, she wasn't breathing, I went to the family. I told them that. The defendant said X, Y, Z. Those are all fact witness things.

....

If you are going to ask them things that are outside of what a lay person could answer, that requires some specialized knowledge. When you get into how did you treat them, I think that necessarily is going to open up a can o[f] worms on why did you do that? And that's going to require some expertise.

The superior court ruled it would not entertain trial objections regarding the scope of the physicians' testimony, but instead would engage in a post-trial, retrospective analysis of any compensation-related issues, stating:

[T]he person who calls [the physician] pays them absent a showing of good cause which can be made after the trial is over. If it should be shifted, we can determine that at the end of the trial based on a transcript. If there is a disagreement about who should have to pay them, I will review the transcript and see who was using them as an expert.

¶ 10 We adopt a simpler procedure that is more consistent with disclosure obligations in criminal cases and that provides increased certainty about what will transpire at trial. Prior to trial, the parties must determine and disclose the capacity in which the physicians will be called as trial witnesses. See Ariz. R.Crim. P. 15.1(b), 15.2(c); see also State v. Roque, 213 Ariz. 193, 207–09, ¶¶ 32–40, 141 P.3d 368, 382–84 (2006) (discussing State's disclosure obligations). These disclosures will then dictate the proper parameters of the doctors' trial testimony.

¶ 11 As previously noted, the State has avowed that it will call the six doctors at issue as fact witnesses. We assume that the physicians have factual information relevant to the criminal charges.³ The challenge then becomes differentiating between factual testimony the witnesses may offer as treating physicians and expert testimony.⁴

¶ 12 It is not possible to articulate a bright-line rule for determining when a treating physician crosses the line from fact witness to expert witness. However, we reject as overly broad DMG's position that its physicians must be treated (and compensated) as expert witnesses when any part of their testimony requires specialized knowledge obtained through professional education or work experience.

¶ 13 Both in the superior court and in this Court, DMG has focused on questions the State posed during its interviews that elicited information about the physicians' professional experience and specialization. DMG suggests such questions demonstrate the parties are using the doctors as expert witnesses. We conclude otherwise. Questions about a healthcare professional's background, experience, training, and specialization seek basic foundational information. They do not establish that the ensuing questions call for expert testimony. Such background information is relevant to jurors in assessing the credibility of fact witnesses and in determining the weight to give their testimony. It is appropriate questioning for a treating physician.

¶ 14 A fact witness typically testifies about information he or she has acquired independent of the litigation, the parties, or the attorneys. See Schreiber v. Estate of Kiser, 22 Cal.4th 31, 91 Cal.Rptr.2d 293, 989 P.2d 720, 723 (1999) (“[W]hat distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar” with the medical information.); see also Indem. Ins. Co. of N. Am. v. Am. Eurocopter L.L.C., 227 F.R.D. 421, 423–24 (M.D.N.C.2005) (“When the treating physician goes beyond the observations and opinions obtained by treating the individual and expresses opinions acquired or developed in anticipation of trial, then the treating physician steps into the shoes of an expert....”). Other than reviewing his or her own records, a medical fact witness will not usually be required to perform additional work, investigation, or review in order to answer questions.

¶ 15 Asking a treating physician the “who, what, when, where, and why” regarding his own patient and medical records will generally elicit fact-based testimony....