Spring v. Bradford, __Ariz.  Adv. Rep. __, 1 CA-CV 15-0505 (App. Div. I, January 12, 2017) (J. Cattani)

WHERE PARTIES AGREE TO APPLY RULE OF EXCLUDING WITNESSES DURING TRIAL IT IS IMPROPER TO ALLOW EXPERT WITNESSES TO READ TRIAL TRANSCRIPT OF OTHER WITNESSES WITHOUT FIRST GETTING COURT'S PERMISSION/WITNESSES ESSENTIAL TO MANAGEMENT OF CASE MAY BE EXEMPTED UNDER EVIDENCE RULE 615(C)

Plaintiff sued her chiropractor for negligent manipulation of her spine which resulted in the need for a spinal fusion.  The jury returned a defense verdict and plaintiff's motion for new trial was denied. Plaintiff argued the trial court erred in refusing to strike the defendant's standard of care and causation experts when it was learned they had been allowed to read the transcript of plaintiff's experts in violation of Rule 615, Arizona Rules of Evidence. The defendant did not timely request an exemption from the rule.  The trial court agreed the rule was violated but rather than striking the witnesses, issued a curative instruction.  The Arizona Court of Appeals affirmed.

Rule 615 requires the trial court, upon request, exclude witnesses from hearing or reading the testimony of other witnesses during trial to avoid “fabrication, inaccuracy, and collusion.” Here both parties at the beginning of trial agreed to invoke the rule.

During cross examination of defendant's causation expert, plaintiff's counsel first learned that the expert had been provided a copy of plaintiff's causation expert trial testimony. This led to the revelation that defendant's standard of care expert had also been provided trial testimony of plaintiff's standard of care expert. Plaintiff moved both experts' testimony be stricken.

The trial court agreed the rule had been violated because defense counsel had not asked permission to share the testimony with his experts. However, the court  also  found that had defense counsel asked the trial court likely would have allowed it under the rule's “essential witness” exemption, that prejudice to plaintiff was minimal if nonexistent and that a jury instruction would cure any problem.  Further the court stated it would consider striking portions of the testimony if plaintiff's counsel could point to any specific testimony that was inconsistent with what had been revealed in discovery. Specifically the jury was instructed that defense counsel had provided this testimony to his experts without the court's permission in violation of the rule and that the jury should consider this fact in weighing the defense experts' testimony.

Rule 615 (c) exempts, “a person whose presence a party shows to be essential to presenting the party's claim or defense” from exclusion. The court of appeals held that this exemption is not to be applied as a matter of course to all experts particularly where they testify to the facts of the case. The test for application of the exemption is that the proponent “make “a fair showing” that “the expert witness is in fact required for the management of the case.” Here there was no showing or even a request for exemption before the witnesses were provided the opposition's expert testimony. This was a clear violation of the rule.

However, while violation of the rule creates a presumption of prejudice concerning fact witnesses, generally, there is no such presumption regarding expert witnesses. This is so because the usual production of expert reports and depositions provides a basis for showing the change in testimony necessary to establish prejudice.

More importantly, the violation here was not the failure to exclude a witness who should have been excluded but the failure to ask permission. Where, as here, the trial court could have granted such permission and even indicated it probably would have, the potential prejudice is limited to a lack of notice that the experts would read the testimony and not the actual reading of the testimony itself. Plaintiff demonstrated no such prejudice.

The remedy for violation of the rule is best formulated by the trial court. Where, as here, the trial court determined the violation was based upon a good faith mistake in interpreting the rule and not an intentional effort to circumvent the rule, plaintiff's urging the striking of the testimony was properly rejected. The court's curative instruction fairly addressed the scope of the violation and was not an abuse of discretion.

Finally plaintiff argued that a new trial was in order because of the aggregate of misconduct by defense counsel. In addition to the Rule 615 violation, plaintiff's counsel pointed to defense counsel's use of information on a chiropractor website to impeach plaintiff's standard of care expert which had never been disclosed under Rule 26 of the Arizona Rules of Civil Procedure.  The court of appeals found the trial court's curative instruction on this point, that defense counsel had an obligation to seasonably disclose this impeachment information, failed to do so and it should therefore be disregarded, was adequate to address this relatively minor infraction.