Webinar for January

These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action and proceeding. IRCP Rule 1(a) Idaho trial courts are expected to effectively and actively manage discovery to achieve the purposes of the discovery rules and to reach a “just, speedy, and inexpensive” determination of the issues. Edmunds v. Kraner, 142 Idaho 867

What we will to cover today Scheduling Orders IRCP 26 (b)(4) Limiting the number of Experts Scheduling issues with Expert Witnesses Standard of Care and Proximate Cause Jury Instructions Your questions and concerns

COMMON PROBLEMS THAT WE ALL FACE:  SIGNIFICANT REQUEST FOR TRIAL DAYS  YEAR OR MORE OUT FOR A TRIAL  RESETING A TRIAL DUE TO EXPERT PROBLEMS –CAUSING SUBSTANTIAL DELAY  JURY TRIALS GOING LONGER THAN EXPECTED  GAPS IN TRIAL DAYS DUE TO EXPERT SCHEDULING ISSUES

What can be happening without your knowledge if you don’t actively manage the case: Lawyers having discovery disputes but they are reluctant to bring the dispute to your attention Lawyers can be reluctant to tell you they are behind in their discovery and motions practice. Lawyers may be reluctant to tell you that the trial will take much longer than expected Lawyers are not focused on how delays and the length of the trial will impact jurors

IRCP RULE 16(b) Subjects to be discussed at pre-trial conferences. The participants at any conference under this rule may consider and take action with respect to: (1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses; (4) the avoidance of unnecessary proof and of cumulative evidence;

Rule 26(b)(4). Trial preparation - Experts. Discovery of facts known and opinions held by experts expected to testify, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained by interrogatory and/or deposition, including: (A) (i) A complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; any qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

DISCLOSURE OF EXPERTS: All Plaintiff’s expert witnesses shall be disclosed by M/D/Year. Defendant’s expert witnesses shall be disclosed by M/D/Year. Plaintiff’s rebuttal expert witness shall be disclosed by M/D/Year. All parties’ disclosure as to experts shall be in compliance with Rule 26(b) (4) (A) (i). An expert is defined under Rule 702 of the Idaho Rules of Evidence. The failure of a party to comply with this Rule 26(b) (4) (A) (i) expert disclosure must be presented by the opposing party to the court within forty five (45) days from the due date for disclosure. If the opposing party does not object to the Rule 26(b) (4) (A) (i) within forty five (45) days after disclosure any objections to the expert disclosure will be deemed waived.

What do you accomplish by management:  Early disclosure and the opportunity to deal with any problems with experts and their opinions  The opportunity to deal with cumulative evidence  Early opportunity to deal with scheduling issues that may arise during the trial  The opportunity to move the trial if needed at a time when you have more options for an earlier reset of the trial.

Suggested Best Practices Contact the attorney’s by phone on: I. Scheduling order information II. Immediately after the deadline for all expert disclosure (at least 6 months prior to trial) III. 45 days prior to trial on Expert Scheduling IV. Set pre trial at least 21 days before trial

Limitation of Experts: Edmunds v. Kraner, 142 Idaho 867, , 136 P.3d 338, (2006): Edmunds was a medical malpractice case and in discovery St. Alphonsus had listed 53 expert witnesses and Edwards asked the District Court to limit the number of experts in the discovery phase of the litigation. St. Alphonsus indicated many of the “experts” were treating physicians and that they had really intended to only call three experts at the hearing before the District Court. The District Judge denied the request to limit experts.

Important precedent in Edwards:  …in addition to ruling on evidentiary issues at trial, Idaho courts have the inherent authority to delineate issues for trial and indicate the expert witness or witnesses allowed to testify to each relevant issue during the discovery phase of litigation.  Our law and our rules of civil procedure both provide that courts have the authority to limit the number of expert witnesses prior to trial. We have long recognized that courts have broad, inherent powers to control discovery. See Bailey v. Sanford, 139 Idaho 744, 749, 86 P.3d 458, 463 (2004). This includes the inherent authority to limit the number of expert witnesses during discovery. See Hansen, 974 P.2d at 1161

 We have also advised that “judges should not hesitate to exercise appropriate control over the discovery process.” Sierra Life Ins., Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 801, 623 P.2d 103, 109 (1980) (quoting Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 1649, 60 L.Ed.2d 115, 134 (1979)).  Our rules of civil procedure and the express purposes behind our discovery rules likewise recognize the court's authority to limit the number of expert witnesses. Rule 16(d)(4) provides that a court may limit the number of expert witnesses prior to trial.

 Rule 1(a) requires that the rules of civil procedure “be liberally construed to secure the just, speedy, and inexpensive determination of every action and proceeding.” Our discovery rules were designed to prevent surprise at trial, Pearce v. Ollie, 121 Idaho 539, 552, 826 P.2d 888, 901 (1992), and discovery rules regarding expert witnesses were designed to promote fairness and candor, see Radmer, 120 Idaho at 89, 813 P.2d at 900.

 Ideally, the lower court should have held a conference pursuant to I.R.C.P. 16(d) to discuss limiting the number of experts and determine more fully on which issues these experts would be expected to testify in order to comport with the purposes behind expert witness discovery and to prevent possible discovery abuses.

Standard of Care: …. claimant or plaintiff must, as an essential part of his or her case in chief,  affirmatively prove by direct expert testimony,  by a preponderance of all the competent evidence,  that such defendant …negligently failed to meet the applicable standard of health care practice of the community

 in which such care allegedly was or should have been provided,  as such standard existed at the time and place of the alleged negligence of such physician and surgeon,  as such standard then and there existed with respect to the class of health care provider that such defendant then and there

 Such individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class  in the same community,  taking into account his or her training, experience, and fields of medical specialization, if any.  If there be no other like provider in the community and the standard of practice is therefore indeterminable, evidence of such standard in similar Idaho communities at said time may be considered.

 As used in this act, the term "community" refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.

 The applicable standard of practice must be established in such cases by …  knowledgeable, competent expert witnesses, and such expert testimony may only be admitted in evidence if the foundation therefor is first laid, establishing  (a) that such an opinion is actually held by the expert witness,  (b) that the said opinion can be testified to with reasonable medical certainty, and  (c) that such expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed;

…provided, this section shall not be construed to prohibit or otherwise preclude a competent expert witness who resides elsewhere from adequately familiarizing himself with the standards and practices of (a particular) such area and thereafter giving opinion testimony in such a trial.

Standard of care case law:  The standard of care in a medical malpractice action is the care typically provided under similar circumstances by the relevant type of health care provider in the community at the time and place of the alleged negligent act. Shane v. Blair, 75 P.3d 180, 139 Idaho 126 (2003),  In medical malpractice case, health care providers are to be judged in comparison with similarly trained and qualified providers of same class in same community. I.C. § Dekker v. Magic Valley Regional Medical Center, 115 Idaho 332, 766 P.2d 1213 (1988).

“Community”, for purposes of statute requiring as essential part of medical malpractice case affirmative proof that defendant failed to meet applicable standards of health care practice in community in which care was, or should have been, provided, is that geographical area ordinarily served by licensed general hospital at or nearest to which the care was or allegedly should have been provided. I.C. § Dekker v. Magic Valley Regional Medical Center, 115 Idaho 332, 766 P.2d 1213 (1988).

Jury Instructions: See IDJI Instructions : IDJI Medical malpractice instructions80 IDJI – Standard of care: health care professionals are specialists80 IDJI Standard of care: health care providers are not specialists. 81 IDJI Charging elements of medical negligence82 IDJI Consent to medical treatment83 IDJI – Necessity for consent84 IDJI – Who can give consent85 IDJI – Consent on behalf of minor or incapacitated person86 IDJI – Informed consent defined87 IDJI – Consequences of invalid consent88 IDJI – Emergency exception89 IDJI – Charging instruction on elements of lack of consent90 IDJI – Charging instruction – defense of emergency exception91

IDJI – Proximate cause – “substantial factor,” without "but for" test. INSTRUCTION NO. ___ When I use the expression "proximate cause," I mean a cause that, in natural or probable sequence, produced the injury, the loss or the damage complained of. It need not be the only cause. It is sufficient if it is a substantial factor in bringing about the injury, loss or damage. It is not a proximate cause if the injury, loss or damage likely would have occurred anyway. There may be one or more proximate causes of an injury. When the negligent conduct of two or more persons or entities contributes concurrently as substantial factors in bringing about an injury, the conduct of each may be a proximate cause of the injury regardless of the extent to which each contributes to the injury.

Pucket v Verska The district court offered four jury instructions regarding the standard of care. IDJI , which stated that Puckett had the burden of proving that Verska failed to meet the applicable standard of care, that she was injured, and that Verska’s acts proximately caused her injuries. IDJI , which provided that Verska had a duty to possess and exercise a degree of skill similar to other specialists in the community. Idaho Code § , it stated that Puckett must prove that Verska failed to meet the standard of health care practice in Boise with respect to his specialty as it existed on the date of surgery. Last, it instructed the jury on the definition of community, using the statutory definition provided in Idaho Code §

Idaho Rule of Evidence 611 provides that: (a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. I.R.E. 611(a)-(b). The limiting and control of cross-examination is within the province of the trial judge. State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968); State v. Linebarger, 71 Idaho 255, 232 P.2d 669 (1951).