from the Superior Court in Maricopa County The Honorable
David M. Talamante, Judge No. CV2011-098170
of the Court of Appeals, Division One 241 Ariz. 455 (App.
2017) AFFIRMED IN PART, VACATED IN PART
Elliot Grysen (argued), Grysen & Associates, Spring Lake,
MI; and Scott E. Boehm, Law Office of Scott E. Boehm, P.C.,
Phoenix, Attorneys for Emma Spring
J. Karvis (argued), Robin E. Burgess, Winn L. Sammons,
Sanders & Parks, P.C., Phoenix, Attorneys for Timothy R.
L. Abney, Ahwatukee Legal Office, P.C., Phoenix; John Jeffrey
Bouma, Cronus Law PLLC, Phoenix; Patricia E. Ronan, Patricia
E. Ronan Law, LLC, Phoenix; and Frank Verderame, Randall A.
Hinsch, Plattner Verderame, P.C., Phoenix, Attorneys for
Amici Curiae Plaintiff Law Firms
CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which CHIEF JUSTICE BALES and JUSTICES BRUTINEL, TIMMER,
BOLICK, GOULD, and LOPEZ joined.
PELANDER, VICE CHIEF JUSTICE
Arizona Rule of Evidence 615 ("the Rule") generally
provides that a trial court, at a party's request,
"must order witnesses excluded so that they cannot hear
other witnesses' testimony." We hold that the Rule,
when invoked, prohibits a party from providing prospective
trial witnesses with transcripts of prior witnesses'
trial testimony. We further hold, however, that a violation
of this prohibition is not presumptively prejudicial in a
civil action; but even when no prejudice is shown, the trial
court must take some corrective action by tailoring an
appropriate remedy under the circumstances. Finally, we hold
that although expert witnesses are not automatically exempt
from the Rule, under Rule 615(c), a trial court must permit a
witness to hear (or read) a prior witness's testimony if
a party shows that such an exception is essential to that
party's claim or defense.
Emma Spring sued Timothy Bradford, D.C., for medical
malpractice. Spring alleged that Bradford negligently
performed a chiropractic adjustment that damaged her cervical
Each party hired two expert witnesses to testify at trial.
Spring retained Dr. Alan Bragman to address whether
Bradford's chiropractic adjustment complied with the
applicable standard of care and Dr. Daniel Lieberman to
address whether that treatment caused Spring's spinal
injury. Bradford hired Dr. Robert Iverson as his
standard-of-care expert and Dr. Allan Hamilton as his
causation expert. During pretrial discovery, both parties
submitted disclosure statements relating to their respective
expert witnesses as required by Arizona Rule of Civil
Procedure 26.1(a)(6). In addition, Drs. Bragman, Lieberman,
and Iverson were deposed.
Before any witness testified on the first day of trial, the
court (with both parties' agreement) invoked the Rule
excluding any prospective trial witnesses from the courtroom
during other witnesses' testimony. In her case-in-chief,
Spring presented expert testimony from Drs. Bragman and
In the defendant's case-in-chief, Bradford presented
testimony from Dr. Hamilton. During cross-examination,
Spring's counsel first learned that Bradford's
counsel had provided Dr. Hamilton with a transcript of Dr.
Lieberman's trial testimony. After Dr. Hamilton finished
testifying, the trial court found that Bradford's counsel
and Dr. Hamilton had violated the court's exclusion
order. Before testimony resumed the next day, Spring's
counsel learned that Bradford's counsel had also provided
Dr. Iverson with a transcript of Dr. Bragman's trial
testimony. The trial court found that, although
Bradford's counsel did not act in bad faith,
Bradford's counsel and Dr. Iverson had violated the
In determining an appropriate remedy for the violations, the
trial court did not presume prejudice but instead placed the
burden on Spring to show actual prejudice. Finding that
Spring had not established any prejudice, the court denied
her requests to strike Dr. Hamilton's testimony and to
preclude Dr. Iverson from testifying. Although it allowed Dr.
Iverson to testify, the court indicated that Spring could
request that portions of Dr. Iverson's testimony be
stricken if his opinions at trial varied from those disclosed
in his deposition. Spring did not identify any such variance.
The trial court also indicated that if Bradford had asked,
the court probably would have excepted both sides' expert
witnesses from the Rule. Lastly, the trial court provided the
jury with two curative instructions relating to
Bradford's violations of the Rule.
The jury returned a verdict in favor of Bradford. Spring
moved for a new trial based on, among other things,
Bradford's violations of the Rule. The trial court denied
the motion, finding that "the corrective instructions
given during trial to the jury along with the opportunity for
cross-examination prevented actual prejudice to
The court of appeals affirmed. Spring v. Bradford,241 Ariz. 455, 457 ¶ 2 (App. 2017). The court held
"that, by its terms, Rule 615 does not automatically
exempt expert witnesses from exclusion, " but a superior
court may nevertheless "exercise its discretion"
under Rule 615(c) "to allow an expert witness to observe
other testimony (or to review transcribed testimony)."
Id. ¶ 1. The court reasoned that although no
"blanket exemption for experts" exists, Rule 615
authorizes a trial court "to allow an exception to
exclusion if a party 'shows' the witness's
presence to be essential." Id. at 459 ¶
13. Because "Bradford's counsel did not request that
the court exercise its discretion to allow an exemption for
expert witnesses, " however, the court of appeals
concluded that "the superior court did not err by