Spring v. Bradford, __Ariz. Adv. Rep. __, No. CV-17-0068-PR (October 23, 2017) (J. Pelander)

WHERE PARTY VIOLATES COURT ORDER EXCLUDING WITNESSES FROM HEARING OTHER WITNESS' COURT TESTIMONY, THERE IS NO PRESUMPTION OF PREJUDICE TO THE OPPOSING PARTY/ABSENT A SHOWING OF ACTUAL PREJUDICE, SUCH AS ALTERED TESTIMONY INCONSISTENT WITH DISCLOSURE STATEMENTS, OFFENDING WITNESS WILL NOT BE EXCLUDED FROM TESTIFYING NOR HAVE TESTIMONY STRIKEN/CURATIVE INSTRUCTION BY COURT TO JURY IS ADEQUATE TO REMEDY VIOLATION/RULE 615 APPLIES TO EXPERTS AND LAY WITNESSES AND PARTY MUST SHOW COURT WITNESS IS ESSENTIAL TO MANAGEMENT OF CASE BEFORE EXPERT WITNESS IS ALLOWED ACCESS TO TRIAL TESTIMONY OF OTHER WITNESSES

Plaintiff sued defendant chiropractor for negligence in adjusting her spine which she claimed caused her injury. The trial court invoked Rule 615 Rules of Evidence prohibiting witnesses from hearing testimony of other witnesses before they testify. Each party had a standard of care and causation expert. During cross-examination of defendant's causation expert plaintiff learned the expert had been provided with a transcript of plaintiff's causation expert trial testimony. Later, plaintiff learned that defendant's standard of care expert had also been provided a trial transcript of plaintiff's standard of care expert. Plaintiff objected and sought the striking and exclusion of the defense expert testimony. The trial court ruled that while the defense had breached the court's order regarding exclusion, absent a showing of actual prejudice by plaintiff, a curative instruction to the jury would suffice. Plaintiff could show no prejudice. The trial court further ruled that any testimony inconsistent with the defendant's disclosure statement regarding the standard of care expert would be excluded. There was no inconsistency.  The jury returned a defense verdict. Plaintiff appealed and the Arizona Court of Appeals affirmed the trial court and suggested expert witnesses are automatically excepted from Rule 615. The Arizona Supreme Court affirmed the court of appeals in part and vacated in part.

Rule 615 Arizona Rules of Evidence provides: “[a]t a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own.”  The purpose of the rule is to avoid witnesses tailoring their testimony to meet or refute other testimony and to ferret out liars. To allow a witness to read a transcript defeats this purpose the same as if the witness had “heard” the testimony.  In the civil context, however, violation of the rule only has serious consequences if the offended party can prove actual prejudice. There is no presumption of prejudice.

Actual prejudice (“the error likely ‘affect[ed] the substantial rights of the parties' such that refusing to order a new trial would be ‘inconsistent with substantial justice'”) is more likely to exist where the witness violating the rule is a lay witnesses.  Due to the disclosure requirements regarding expert testimony, prejudice is less likely to occur and can be identified by altered court room testimony inconsistent with prior disclosures. 

Finally, the rule makes an exception where a party can show it is necessary a witness hear or read prior testimony in order for the witness to help the party “manage the case.” While this is almost always the case with expert witnesses, the rule does not automatically except them from application of the rule.  A party must still ask the court to except their expert from the rule and make a showing that the expert's knowledge of other testimony is essential to the management of the party's case.  Where a party fails to ask the court to except the expert and then violates the rule, the trial court, as here may instruct the jury of the violation and allow the offended party to argue the violation to the jury.