Arizona Rule of Civil Procedure 68
In Scottsdale Insurance Co. v. Cendejas, 220 Ariz. 281, 205 P.3d 1128 (App. 2009), the expert in question never testified in trial because he withdrew from the case due to a health concern. Id. at 289,40, 205 P.3d at 1136.
However, he did testify in a deposition and a substitute expert relied on the findings of the non-testifying expert. Id. at41.
On that record, the Court held that the first expert qualified under arizona rule of civil procedure 68. Id. at42.
Other courts dealing with this problem have reached a similar result. Oklahoma allows recovery of reasonable expert witness fees only when the claimant demonstrates that the fees were incurred preparing for and testifying at trial, but disallows fees for expert activity unrelated to the presentation of opinion evidence. Fuller v. Pacheco, 2001 OK CIV APP 39, 21 P.3d 74, 81-82 (Okla. Civ. App. 2001).
The Hawaii Supreme Court allowed expert witness fees for the creation of an expert's video deposition, even though the deposition was never used at trial. Canalez v. Bob's Appliance Serv. Ctr., Inc., 89 Haw. 292, 972 P.2d 295, 312 (Haw. 1999).
The court reasoned that the deposition related to the expert's qualifications to testify at trial and a mid-trial decision not to present that testimony did not preclude a party from recovering the expert's fee pursuant to Rule 68. Id.