PHOENIX (Legal Newsline) – The Arizona Supreme Court affirmed a trial court’s decision and denied a motion for a new trial in a case involving whether an expert witness can be excluded from hearing or reviewing the trial testimony of other witnesses.
The case, Emma Spring v. Timothy R. Bradford D.C., was a debate over Arizona Rule of Evidence 615. Rule 615 allows a trial court to exclude witnesses from observing trial testimony in the courtroom or reviewing transcribed trial testimony. The court affirmed the Maricopa County Superior Court's order denying Spring a new trial and vacated part of the Court of Appeals, Division 1 ruling Oct. 23.
“I think what attorneys need to take away from the ruling is that you need to be prepared to establish why your expert is essential to your claim or defense and not just presume that they will be essential even in a medical malpractice case or other case that requires expert testimony,” attorney Mandi J. Karvis of Phoenix-based Sanders & Parks told Legal Newsline. Karvis argued for the defense.
“I think the practice pointer is to have a well-thought out argument regarding the special and unique nature of your expert’s role in your case and how they are truly ‘essential,’" said Karvis. “Alternatively, this can be stipulated to by counsel, but the court would still need to be informed of the agreed upon exception.”
According to the court's opinion, Emma Spring sued her chiropractor, Timothy Bradford, in 2010 over allegations of medical malpractice. She alleged that Bradford negligently performed a neck adjustment that caused her spinal injuries.
Spring argued that Bradford’s defense violated the witness exclusion rule under Rule 615 of the Arizona Rules of Evidence. Spring maintained that the defense prepared its medical experts by showing them transcripts of her medical experts’ testimony.
Spring moved to exclude the defense experts but the trial court declined. It concluded that the defense had violated the rule, although not in bad faith, but held that a trial court can exercise exemption for “essential” witnesses. Spring argued that “the essential nature of any witness (expert or lay) is irrelevant under Rule 615.”
Spring argued that Bradford’s violations created a presumption of prejudice. The trial court found no prejudice because the defense experts hadn’t changed their pre-trial opinions. Further, Spring could not demonstrate prejudice, the opinion states.
The jury ruled in favor of Bradford. Spring appealed, arguing that the superior court’s remedy of Rule 615 was inadequate.
The Court of Appeals affirmed the superior court’s judgment. It held “that, by its terms, Rule 615 does not automatically exempt expert witnesses,” but a superior court may nevertheless “exercise its discretion,” the opinion states. The court of appeals stated that “the violations in question were not the failure to exclude a witness, but rather Bradford’s counsel’s failure to ask permission for an exemption,” according to the court.
The court of appeals also held the trial court’s ruling that Spring was not prejudiced by violation of the rule. Spring moved for a new trial.
The Arizona Supreme Court mostly agreed with the appellate court and affirmed.
In his opinion, Vice Chief Justice John Pelander wrote that a “rebuttable presumption of prejudice should apply only in those limited cases in which a witness’s Rule 615 violation is substantial.”
The Supreme Court agreed with the court of appeals that the trial court did not abuse its discretion in assessing the impact of the Rule 615 violation. The court disagreed with the appellate court’s ruling that Rule 615 be granted merely upon a party’s request.
Pelander wrote “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.”
The court adds, “expert witnesses are not automatically exempt from the general rule of exclusion in Rule 615.”