7-1508. PREHEARING AND HEARING PROCEDURES. (1) The evaluator shall set the time and place of the evaluation hearing and shall give reasonable notice of the hearing to the parties. The parties may agree to hold the hearing by telephone. Except by stipulation among the parties and the evaluator, or for good cause shown, the hearing shall be scheduled to take place no sooner than twenty-eight (28) days, nor later than seventy (70) days, from the date of the assignment of the case to the evaluator. If a case will be heard later than seventy (70) days from the date of assignment, the evaluator shall file a notice with the trial court providing reasons for the delay and informing the court of the date of the hearing.

(2) Subject to the evaluator’s discretion, no party shall be allowed more than three (3) hours for presentation of its case at an evaluation hearing.

(3) Counsel for the parties and the evaluator may issue subpoenas for the hearing in the manner provided in the Idaho rules of civil procedure.

(4) Unless otherwise agreed by the parties, at least seven (7) days prior to the date of the evaluation, each party shall file with the evaluator and serve upon all other parties a prehearing statement containing a list of witnesses the party intends to call at the evaluation hearing and a list of exhibits and documentary evidence a party intends to utilize at the hearing. The document will identify whether the testimony shall be live, presented in a sworn writing, or taken by telephone. All written and other tangible evidence identified shall be made available for the opposing party’s inspection and copying at least seven (7) days prior to the hearing date. The evaluator may exclude any evidence not provided in compliance with this section.

(5) The evaluator shall control the mode and order of proof with the objectives of making the presentation of evidence effective for the ascertainment of facts, avoiding the needless consumption of time, protecting witnesses from harassment and undue embarrassment, and ensuring the fair, swift, and cost-effective determination of the case. Witnesses shall testify under oath administered by the evaluator with the full penalty of law to apply to violation of that oath. The evaluator may allow testimony by telephone or other nontraditional means. The evaluator may question any witness. A party has the right to cross-examine any other party and any witness called by another party.

(6) A stenographic or electronic recording may be made at the request and at the expense of any party.

(7) Proceedings shall be under the control of the evaluator and as informal as practicable. The extent to which the formal rules of evidence will be applied shall rest in the discretion of the evaluator. To the extent determined applicable, the evaluator shall construe those rules liberally in order to effectuate a fair, swift and cost-efficient procedure. Expert opinion testimony shall only be allowed if the conclusions and foundations therefore were appropriately disclosed and, if offered live, subjected to the opportunity for deposition pursuant to section 7-1507(2), Idaho Code, and otherwise admissible under the Idaho rules of evidence.

(8) To effectuate the fair, swift and cost-efficient nature of the evaluation, the following documents shall be presumed admissible and may be provided to the evaluator prior to the hearing, provided the documents are disclosed in the prehearing statement and, where relevant, the name, address and telephone number of the author of the document is contained in the document or set forth in the prehearing statement:

(a) Any written contract between the parties;

(b) A copy of any billing statement or invoice prepared in the normal course of business;

(c) Copies of any correspondence between the parties except documents inadmissible under rule 408 of the Idaho rules of evidence;

(d) Any document that would be admissible under rule 803(6) of the Idaho rules of evidence;

(e) A bill, report, chart, or record of a hospital, doctor, dentist, registered nurse, licensed practical nurse, physical therapist, psychologist or other health care provider, on a letterhead, or billhead or otherwise clearly identifiable as part of the provider’s professional record;

(f) A bill for drugs, medical appliances or other related expenses on letterhead, or billhead or otherwise clearly identifiable as part of a provider’s professional record;

(g) A bill for, or estimate of, property damage or loss on a letterhead or billhead. In the case of an estimate, the offering party shall notify the adverse party no later than, as part of the prehearing statement, whether the property was repaired, in full or in part and provide the actual bill showing the cost of repairs;

(h) A police, weather, or wage loss report or standard life expectancy table to the extent it is relevant without need for authentication;

(i) A photograph, videotape, x-ray, drawing, map, blueprint, or similar evidence to the extent it is relevant without the need for authentication;

(j) The written statement of any witness made as part of a police investigation;

(k) The written statement of any witness, including a written report of any expert witness that contains a statement of opinion based on proper qualifications which the witness would be allowed to express if testifying in person;

(l) A document not specifically covered by the foregoing but having equivalent circumstantial guarantees of trustworthiness, the admission of which would help in the swift, fair and cost-effective resolution of the dispute or otherwise serve the interests of justice.

(9) The admission of a document under subsection (8) of this section does not, in any manner, restrict argument or proof relating to the weight of the evidence admitted, nor does it limit the evaluator’s discretion to determine the weight of the evidence after hearing all evidence and the arguments of the parties.

(10) The evaluation hearing may proceed, and a decision may issue, in the absence of any party who, after due notice, fails to participate or to obtain a continuance. Continuances shall only be granted for good cause and for the shortest practicable time. If a party is absent, the evaluator may permit any party present to submit evidence supporting such present party’s position in the case. In a case involving more than one (1) defendant, the absence of a defendant shall not preclude the evaluator from assessing as part of the award, damages against the defendant or defendants who are absent. The evaluator, for good cause shown, may allow an absent party an opportunity to appear at a subsequent hearing before making an award. A party who fails to participate in the hearing or prehearing process without good cause waives the right to a trial de novo. If it is shown to the trial court by clear and convincing evidence that a party or its counsel has not acted in good faith during the evaluation, the trial court may impose any appropriate sanction against such party or its counsel.

History:

[7-1508, added 2002, ch. 137, sec. 1, p. 384; am. 2003, ch. 29, sec. 6, p. 108.]