Levy v. Alfaro – 6/19/2007

June 28, 2007

Arizona Court of Appeals Division One Holds That the Term Reasonable Expert Witness Fees As Used in ARCP 68(d) Is Not Limited To Fees Paid To Experts For Testifying At Trial.

Levy brought a civil suit against the Alfaros alleging injuries arising from a minor traffic accident. The Alfaros made an offer of judgment pursuant to Ariz. R. Civ. P. Rule 68, which Levy refused. The matter proceeded to trial and the jury returned a verdict in favor of Levy but for less than the offer of judgment. The Alfaros then moved for sanctions pursuant to Rule 68(d). The court granted sanctions, and after offsetting the awards, entered a substantial judgment in favor of the Alfaros and deemed Levy’s judgment satisfied. Levy timely appealed.

On appeal, Levy argued that the language of Rule 68 limits sanctions for expert witness fees to only those fees for time the expert spent testifying at trial. A substantial portion of the sanction against Levy included fees for the time the Alfaros’ expert spent analyzing issues and preparing for trial. The Court of Appeals affirmed, and held that nothing in the plain language of Rule 68(d) provided for such a limitation on sanctions for expert witness fees. The Court found Levy’s citation to Rule 54(f)(2), applicable in medical malpractice cases, and case law interpreting A.R.S. § 12-332(A)(2) unpersuasive.

Judge Barker authored the opinion; Presiding Judge Norris and Judge Thompson concurred.