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Spring v. Bradford

Court of Appeals of Arizona, First Division

January 12, 2017

EMMA SPRING, Plaintiff/Appellant,
v.
TIMOTHY R. BRADFORD, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County No. CV2011-098170 The Honorable David M. Talamante, Judge

         AFFIRMED.

          Grysen & Associates, Spring Lake, Michigan By B. Elliot GrysenGrysen & Associates, Spring Lake, Michigan By B. Elliot Grysen

          Sanders & Parks, PC, Phoenix By Mandi J. Karvis, Winn L. Sammons Counsel for Defendant/Appellee

          Presiding Judge Kent E. Cattani delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge Maurice Portley[1] joined.

          OPINION

          CATTANI, Judge.

         ¶1 In this appeal, we consider whether and how the rule of exclusion of witnesses under Rule 615 of the Arizona Rules of Evidence applies to expert witnesses. We hold that, by its terms, Rule 615 does not automatically exempt expert witnesses from exclusion. The superior court may, however, exercise its discretion under subsection (c) of the rule-an exemption for "essential" witnesses-to allow an expert witness to observe other testimony (or to review transcribed testimony).

         ¶2 The defendant doctor in this medical malpractice case did not request that his expert witnesses be exempted from exclusion, but nevertheless provided the experts with transcripts of other witnesses' trial testimony in preparation for the experts' testimony. The superior court correctly concluded that the defendant violated Rule 615 by doing so, and also appropriately addressed the minimal scope of resulting prejudice through a jury instruction, rather than by striking the experts' testimony. Accordingly, and for reasons that follow, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         ¶3 In January 2010, Emma Spring had her first appointment with Dr. Timothy Bradford, a chiropractor, to address a "knot" in her shoulder. After Bradford briefly massaged her shoulder, he used a "high velocity low amplitude thrust" to adjust Spring's neck. Spring immediately felt significant pain.

         ¶4 Spring consulted a neurosurgeon, Dr. Daniel Lieberman, who discovered a fragment of a herniated cervical disc compressing a nerve root in her spine. Dr. Lieberman performed surgery to remove the disc fragment and the remainder of the herniated disc, and he fused Spring's spine. Although Spring's symptoms improved, she continued to experience pain and weakness in her neck and left arm. Spring sued Bradford for medical malpractice, alleging that Bradford had negligently performed the chiropractic adjustment, thereby damaging her cervical spine.

         ¶5 At trial, the parties presented conflicting expert testimony. Spring called as her standard of care expert Dr. Allen Bragman, who stated that Bradford improperly used too much force and improperly used a rotational maneuver during the adjustment. Bradford presented testimony from Dr. Robert Iverson, who countered Dr. Bragman's conclusions and opined that Bradford's adjustment technique was appropriate.

         ¶6 Spring presented causation testimony from Dr. Lieberman, who stated that the timing of Spring's symptoms and the type of disc damage left him with "virtually no doubt" the chiropractic treatment had caused her injury. Bradford offered controverting causation testimony from Dr. Allen Hamilton, who testified that Spring had a preexisting disc herniation that became "suddenly symptomatic" following the manipulation, and that the cause of the injury was uncertain absent evidence regarding the extent of Spring's preexisting condition.

         ¶7 The jury returned a 6-2 verdict in favor of Bradford. The superior court denied Spring's motion for new trial, and Spring timely appealed. We have jurisdiction under Arizona Revised ...


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