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Ulibarri v. Gerstenberger5/20/1993
855 (1990).
The plaintiff's affidavit raises a factual issue as to whether hypnosis prevented her from timely discovering and filing her claim. On remand she has the burden of affirmatively establishing her competence to testify at trial as to the matters in her affidavit. Ariz. R. Civ. P. 56(e).
B. Dr. Ritland's Affidavit
Having determined that the plaintiff's own testimony derived from her affidavit presents a triable issue as to whether she was unaware of her injuries because the defendant hypnotically concealed the cause of action, we consider whether there must also be expert testimony on hypnosis to support plaintiff's argument. The issue of concealment is raised only through the allegation of hypnotic mind control. We do not believe this to be an area within the general knowledge of the average juror. Consequently, expert testimony is necessary to establish the basis for this sort of concealment. The plaintiff attempted to provide that expert testimony with Dr. Ritland's affidavit. The trial court ruled generally that she had failed to refute that the action was barred by the statute of limitations. The defendant on appeal claims that she failed to qualify Dr. Ritland as an expert in hypnosis.
The affidavit of John Ritland, M.D., a medical doctor practicing in obstetrics and gynecology, purports to be an expert medical affidavit on the plaintiff's experience with the defendant's hypnosis. The defendant claims that it fails to establish that Dr. Ritland has the necessary expertise to render an opinion on hypnosis. The first paragraph of the affidavit states simply that Dr. Ritland is an obstetrician/gynecologist and "is a expert in hypnosis." To qualify a witness as a medical expert, the proponent must establish the witness's knowledge and familiarity with the standard of care commonly practiced by physicians in that specialty. Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972) (medical malpractice case involving a specialist). We must ask whether the fact that Dr. Ritland is a medical doctor specializing as an obstetrician/gynecologist, ipso facto, establishes his expertise in hypnosis. The defendant, in his response to the motion to vacate complained that Dr. Ritland's affidavit contained no explanation of the basis of his expertise. This, again, is an issue never directly ruled upon by the trial court. Whether a witness is competent to testify as an expert is a matter primarily for the trial court and largely within its discretion. State v. Salazar, Ariz.. , 844 P.2d 566 (1992).
If a party fails to lay adequate foundation for an expert's affidavit in response to a motion for summary judgment, that testimony is not considered. See Chess v. Pima County, 126 Ariz. 233, 235, 613 P.2d 1289, 1291 (App. 1980) (affidavit was insufficient for summary judgment purposes because "it contained Conclusions and failed to show that the affiant competent to testify to the matters stated therein"); National Housing Indus. v. E. L. Jones Dev. Co., 118 Ariz. 374, 576 P.2d 1374 (App. 1978) (witness not shown to be expert; proper foundation not laid for expert testimony). A witness may be qualified as an expert on the basis of knowledge, experience, training or education. State v. Saez, Ariz. , 845 P.2d 1119 (App. 1992). A claim that insufficient foundation was laid for the admission of evidence cannot be raised on appeal unless the claim was specifically pointed out to the trial court regarding the alleged defect in the foundation. State v. Guerrero, Ariz. , 840 P.
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