from the Superior Court in Maricopa County No. CV2011-098170
The Honorable David M. Talamante, Judge
& Associates, Spring Lake, Michigan By B. Elliot
GrysenGrysen & Associates, Spring Lake, Michigan By B.
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
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
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.
AND PROCEDURAL BACKGROUND
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.
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.
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
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.
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