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Spring v. Bradford

Supreme Court of Arizona

October 23, 2017

Emma Spring, Plaintiff/Appellant,
v.
Timothy R. Bradford, D.C. Defendant/Appellee.

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

         Opinion of the Court of Appeals, Division One 241 Ariz. 455 (App. 2017) AFFIRMED IN PART, VACATED IN PART

          B. 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

          Mandi J. Karvis (argued), Robin E. Burgess, Winn L. Sammons, Sanders & Parks, P.C., Phoenix, Attorneys for Timothy R. Bradford

          David 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

          VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES BRUTINEL, TIMMER, BOLICK, GOULD, and LOPEZ joined.

          OPINION

          PELANDER, VICE CHIEF JUSTICE

         ¶1 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.

         I.

         ¶2 Emma Spring sued Timothy Bradford, D.C., for medical malpractice. Spring alleged that Bradford negligently performed a chiropractic adjustment that damaged her cervical spine.

         ¶3 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.

         ¶4 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 Lieberman.

         ¶5 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 court's order.

         ¶6 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.

         ¶7 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 Plaintiff."

         ¶8 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 ΒΆ 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 finding ...


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