United States District Court, D. Arizona
S. WILLETT, UNITED STATES MAGISTRATE JUDGE
Court has reviewed the parties' briefing concerning
Defendants' “Motion to Disqualify Plaintiff's
Expert, John O'Steen, M.D.” (Doc. 24). For the
reasons explained below, the Court will deny the Motion.
courts have the inherent power to disqualify expert witnesses
to protect the integrity of the adversary process, protect
privileges that otherwise may be breached, and promote public
confidence in the legal system. See Campbell Indus. v.
M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980) (“A
district court is vested with broad discretion to make
discovery and evidentiary rulings conducive to the conduct of
a fair and orderly trial . . . including disqualifying expert
testimony.”). Disqualification is a drastic measure
that courts should use reluctantly and rarely.
Hewlett-Packard Co. v. EMC Corp., 330 F.Supp.2d
1087, 1092 (N.D. Cal. 2004).
is the statutory beneficiary of the deceased William Holtz,
who died while incarcerated in an Arizona state prison.
Plaintiff alleges that Mr. Holtz' death was a result of
Defendants' failure to provide adequate medical care.
(Doc. 1-3 at 3-9). Plaintiff has disclosed John O'Steen,
M.D. as an expert witness to provide testimony concerning the
standard of care that Defendants should have used in treating
Mr. Holtz' medical conditions. Defendants do not dispute
that Dr. O'Steen meets the professional qualifications of
an expert under Ariz. Rev. Stat. § 12-2604 and Federal
Rule of Civil Procedure 702. (Doc. 27 at 3). Nevertheless,
Defendants assert that Dr. O'Steen must be disqualified
in this matter.
Motion to Disqualify (Doc. 24) relies primarily on a decision
in a Superior Court of Arizona case that involved the death
of another Arizona prisoner. The plaintiff in that case also
retained Dr. O'Steen as a medical standard of care
expert. (Doc. 24-1 at 2-6). The state court found that Dr.
O'Steen communicated with two of the defendants'
staff members regarding the plaintiff's medical care both
before and after he was retained as the plaintiff's
expert. (Id. at 4). The state court's decision
Dr. O'Steen's action in interviewing witnesses for
Plaintiffs is akin to being Plaintiffs' investigator. The
Court did not see any evidence that Plaintiffs' legal
team did anything to warn Dr. O'Steen not to speak with
Corizon's former employees . . . . Plaintiffs' legal
team also knew since May 14, 2017 that Dr. O'Steen had
discussions with Corizon employees about [the deceased's]
(Id.). The state court concluded that
Plaintiffs' counsel violated Arizona Rule of Professional
Conduct ER 4.2 “when Dr. O'Steen had
ex-parte communications ‘about the subject of
the representation' with a represented
party.” (Id. at 4-5). The state court
further found that Plaintiffs' counsel violated Arizona
Rules of Professional Conduct ER 5.3 and 8.4(a) when
Plaintiffs' legal team asked Dr. O'Steen to find out
who would be willing to testify, knew that Dr. O'Steen
was going to talk to witnesses, took no action to warn Dr.
O'Steen not to talk to [the two staff members], failed to
disclose the information provided by Dr. O'Steen, and
took advantage of the information provided by Dr. O'Steen
by noticing [the two staff members] for deposition and
asserting a new claim for deliberate indifference. The Court
specifically finds that Plaintiffs' attorneys ratified
Dr. O'Steen's conduct.
(Id. at 5). As a sanction for the misconduct of the
Plaintiffs' counsel, the state court struck Dr.
O'Steen as an expert and precluded Plaintiffs from
calling the two staff members in their case-in-chief.
(Id. at 6). Defendants have not disputed
Plaintiff's assertion that those staff members worked at
a different prison complex than Mr. Holtz was housed. (Doc.
25 at 6). Defendants have not produced substantive evidence
indicating that the staff members had contact with Mr. Holtz.
Nor have Defendants alleged that Plaintiffs counsel has
engaged in the type of professional misconduct in this matter
for which counsel was sanctioned in the state court case. The
Court does not find the existence of circumstances that
warrant the disqualification of Dr. O'Steen as an expert
witness in this matter.
on the foregoing, IT IS ORDERED denying
Defendants' “Motion to Disqualify Plaintiffs