Emma Spring v. Timothy R. Bradford ( 2017 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
EMMA SPRING,
Plaintiff/Appellant,
v.
TIMOTHY R. BRADFORD, D.C.
Defendant/Appellee.
No. CV-17-0068-PR
Filed October 23, 2017
Appeal from the Superior Court in Maricopa County
The Honorable David M. Talamante, Judge
No. CV2011-098170
AFFIRMED
Opinion of the Court of Appeals, Division One
241 Ariz. 455 (App. 2017)
AFFIRMED IN PART, VACATED IN PART
COUNSEL:
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
SPRING V. BRADFORD
Opinion of the Court
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF
JUSTICE BALES and JUSTICES BRUTINEL, TIMMER, BOLICK, GOULD, and LOPEZ
joined.
VICE CHIEF JUSTICE PELANDER, opinion of the Court:
¶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
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SPRING V. BRADFORD
Opinion of the Court
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 ¶ 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 that Bradford violated Rule 615 by providing trial
transcripts to the defense experts without first requesting exemption from exclusion.” Id.
at 460 ¶ 16.
¶9 In considering whether the trial court erred “by declining to apply a
presumption of prejudice resulting from Bradford’s technical Rule 615 violations,” id. at
461 ¶ 20, the court of appeals found no error because “a party asserting Rule 615 error in
a civil case must show prejudice.” Id. at 460 ¶ 17 (citing Kosidlo v. Kosidlo, 125 Ariz. 32, 35
(App. 1979), abrogated in part on other grounds by 125 Ariz. 18 (1979)). The court of appeals
also found no error in the trial court “appropriately address[ing] the minimal scope of
resulting prejudice through a jury instruction, rather than by striking the [defense]
experts’ testimony.” Id. at 457 ¶ 2.
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SPRING V. BRADFORD
Opinion of the Court
¶10 We granted review to address two recurring issues of statewide
importance: (1) whether prejudice should be presumed in a civil case when a party or
witness violates a court’s exclusion order under Rule 615, and (2) what a party must show
for the Rule 615(c) exception to apply to a witness. We have jurisdiction under article 6,
section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.
II.
¶11 We review the interpretation of court rules de novo. State v. Fitzgerald,
232 Ariz. 208, 210 ¶ 10 (2013). But we review for abuse of discretion a trial court’s choice
of appropriate remedy for violation of an order excluding witnesses. See State v. Jones,
185 Ariz. 471, 483 (1996) (finding no abuse of discretion in trial court’s refusal to strike
witness’s testimony or declare a mistrial for alleged violation of the Rule’s parallel
criminal procedure rule, Ariz. R. Crim. P. 9.3(a)). We likewise review a trial court’s denial
of a motion for a new trial for abuse of discretion. Am. Power Prods., Inc. v. CSK Auto, Inc.,
239 Ariz. 151, 154 ¶ 10 (2016).
¶12 “We interpret court rules according to the principles of statutory
construction.” State v. Aguilar, 209 Ariz. 40, 47 ¶ 23 (2004). Under those principles, if a
rule’s “language is subject to only one reasonable meaning, we apply that meaning.
When the language can reasonably be read more than one way, however, we may
consider the [rule]’s subject matter, legislative history, and purpose, as well as the effect
of different interpretations, to derive its meaning.” Bell v. Indus. Comm’n, 236 Ariz. 478,
480 ¶ 7 (2015) (internal citation omitted). And when “interpreting Arizona’s evidentiary
rules, we look to federal law when our rule is identical to the corresponding federal rule.”
Hernandez v. State, 203 Ariz. 196, 198 ¶ 10 (2002).
¶13 Arizona’s Rule 615, which parallels Federal Rule of Evidence 615 in all
material respects, provides that “[a]t a party’s request, the court must order witnesses
excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on
its own.” (emphasis added). The Rule has pre-statehood, common-law roots. See State
v. Sowards, 99 Ariz. 22, 26 (1965). But like its federal counterpart, our Rule differs from
its common-law antecedent by making the sequestration of witnesses mandatory when
requested by one of the parties. See Territory v. Dooley, 3 Ariz. 60, 61 (1889) (describing
exclusion as “solely a matter of discretion”). Of the five exceptions to Rule 615’s general
rule of exclusion, only one is relevant here. Under Rule 615(c), a court is not authorized
to exclude “a person whose presence a party shows to be essential to presenting the
party’s claim or defense.”
¶14 The purpose of Rule 615 is “to prevent witnesses from ‘tailoring’ their
testimony to that of earlier witnesses and to aid in detecting testimony that is less than
candid.” United States v. Ell, 718 F.2d 291, 293 (9th Cir. 1983) (quoting Geders v. United
States, 425 U.S. 80, 87 (1976)); see also Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628
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SPRING V. BRADFORD
Opinion of the Court
(4th Cir. 1996) (stating that sequestering witnesses is “one of the greatest engines that the
skill of man has ever invented for the detection of liars in a court of justice” (quoting 6
John H. Wigmore, Wigmore on Evidence § 1838, at 463 (James H. Chadbourn ed., 1976))).
Excluding witnesses from trial discourages and exposes “fabrication, inaccuracy, and
collusion.” Fed. R. Evid. 615 advisory committee’s note to 1972 proposed rules; see also
Sowards, 99 Ariz. at 26 (“The purpose of excluding witnesses from the trial is to encourage
the discovery of truth, and detection and exposure of falsehood.”).
¶15 Rule 615 applies in both civil and criminal cases. See Ariz. R. Crim. P. 9.3
cmt. to 1989 amendment (stating that under Rule 615 “the trial court in both civil and
criminal cases no longer has discretion and sequestration is a matter of right”); cf. Allison
v. Ovens, 4 Ariz. App. 496, 501 (1966) (noting that the common-law “‘rule’ excluding
witnesses from the courtroom during trial” applied to both criminal and civil cases),
vacated in part on other grounds, 102 Ariz. 520, 524 (1967). And because the Rule does not
differentiate between types of witnesses, it applies to both expert and fact witnesses. See,
e.g., Morvant v. Constr. Aggregates Corp., 570 F.2d 626, 630 (6th Cir. 1978). Thus, the court
of appeals correctly held that, “by its terms, Rule 615 does not automatically exempt
expert witnesses from exclusion.” Spring, 241 Ariz. at 459 ¶ 15; see also United States v.
Seschillie, 310 F.3d 1208, 1213 (9th Cir. 2002) (noting that expert witnesses are not always
exempt from Rule 615’s general provision even though they often may be deemed
“essential” for purposes of the Rule’s exception).
¶16 We agree with the courts below that defense counsel’s conduct in providing
the transcribed trial testimony of Spring’s experts to Bradford’s expert witnesses before
their testimony violated the purpose and spirit, if not the express terms, of Rule 615.
Although the Rule expressly only prohibits witnesses from “hear[ing] other witnesses’
[trial] testimony,” the Rule’s purpose would be frustrated if a prospective witness were
permitted to read other witnesses’ trial testimony. Bradford has never argued otherwise,
and federal courts have recognized that Rule 615 is violated not only when a witness is
present in the courtroom and hears another witness’s testimony, but also when a witness
reads transcripts of another witness’s testimony. See, e.g., United States v. Jimenez, 780 F.2d
975, 980 & n.7 (11th Cir. 1986).
III.
¶17 The primary issue, then, is identifying which party should bear the burden
of proving the existence, or absence, of prejudice from a violation of the Rule. Relying on
State v. Roberts, 126 Ariz. 92 (1980), Spring argues that Bradford’s violations create a
presumption of prejudice. Like the courts below, however, we conclude that no such
presumption applies here.
¶18 In Roberts, a criminal case, the defendant challenged his conviction on the
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SPRING V. BRADFORD
Opinion of the Court
ground that the trial court improperly denied his “motion to invoke the rule on exclusion
of witnesses” under Arizona Rule of Criminal Procedure 9.3(a). 1 126 Ariz. at 94. This
Court held that “failure to honor an exclusionary request is presumed prejudicial unless
the absence of prejudice is clearly manifest from the record.” Id. We reasoned that,
although it is possible in some cases to “conclude with assurance that a defendant was
definitely not prejudiced by the failure to exclude,” there are cases when it is not possible
“to conclude that the failure to exclude was definitely prejudicial or definitely not
prejudicial to a defendant.” Id. In those cases of possible prejudice, we stated that “a rule
requiring an actual showing of prejudice works an injustice.” Id. But cf. Kosidlo, 125 Ariz.
at 35 (stating, pre-Roberts, that trial court’s failure to grant a party’s request in a domestic
relations case to exclude witnesses under Rule 615 did “not require reversal” because the
requesting party “failed to show prejudice”).
¶19 Although Roberts spoke in broad terms, we have no reason here to revisit
its holding because we find that case materially distinguishable. Unlike in this case, the
trial court in Roberts violated a party’s right to exclude witnesses by erroneously denying
the party’s request to exclude and incorrectly stated that the Rule is “discretionary,” 126
Ariz. at 94, whereas here the trial court properly applied the Rule, but a party and his
expert witnesses violated it. We previously noted this distinction in State v. Perkins, 141
Ariz. 278, 293 (1984), overruled on other grounds by State v. Noble, 152 Ariz. 284 (1987), in
which two fact witnesses violated the trial court’s exclusion order. Despite those
violations, this Court upheld the trial court’s refusal to strike one offending witness’s
testimony and to preclude the other from testifying, “absent an abuse of discretion and
evidence of prejudice to appellant’s case.” Id. at 293–94. We distinguished Roberts
because it “concerns the situation in which a court refuses a party’s request to invoke the
rule, and not the situation in which the rule is invoked and then violated by a witness.”
Id. at 294 (emphasis added).
¶20 Thus, as in Perkins, the situation here “is governed not by Roberts,” but
rather by the proposition that reversal is unwarranted absent an abuse of the trial court’s
discretion and demonstrated prejudice to the non-violating party. Id. (first citing State v.
Schlaefli, 117 Ariz. 1, 3–4 (1977); and then citing State v. Hadd, 127 Ariz. 270, 277 (App.
1980)); see also Ell, 718 F.2d at 293–94 (distinguishing a trial court’s failure to comply with
Rule 615, where prejudice is presumed, from a witness’s violation of a court’s
1 Arizona Rule of Criminal Procedure 9.3(a) provides that “[t]he court may, and at the
request of either party shall, exclude prospective witnesses from the courtroom during
opening statements and the testimony of other witnesses.” The comments to this rule
indicate that “Rule 9.3(a) retains the mandatory sequestration rule” set forth in Rule 615.
Ariz. R. Crim. P. 9.3 cmt. to 1989 amendment. (Current Rule 9.3 and its comments have
been abrogated and replaced with a restyled, but substantively similar, Rule 9.3, effective
January 1, 2018.) The differences between Rule 9.3(a) and Rule 615 are not relevant here.
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Opinion of the Court
exclusionary order issued under the Rule, where “the appropriate sanction” is committed
to the trial court’s discretion); United States v. Oropeza, 564 F.2d 316, 326 (9th Cir. 1977)
(concluding that trial court did not err in allowing witness to testify, despite his violation
of the Rule, when “no showing of prejudice” was made); Jones, 185 Ariz. at 483 (stating
that reversal for violation of Criminal Procedure Rule 9.3(a) is warranted only when the
non-violating party “suffered prejudice”).
¶21 Generally, although Rule 615 does not distinguish between types of
witnesses, violations involving fact witnesses are more likely to be prejudicial than
violations involving expert witnesses. As the court of appeals observed, “[n]o
presumption of prejudice is generally necessary in the context of purely expert witnesses
because disclosure of their expert reports and pretrial depositions establish a basis for
assessing actual prejudice in the form of altered opinions.” Spring, 241 Ariz. at 460 ¶ 18;
see also Hill v. Porter Mem’l Hosp., 90 F.3d 220, 222–24 (7th Cir. 1996) (concluding that a
trial court acted within its discretion in permitting the defendant’s expert witnesses to
testify after they received transcripts of the plaintiff’s expert witness’s trial testimony
because the defense experts testified to the same opinions they had expressed in their
pretrial reports and depositions, and thus the plaintiff could not show prejudice).
¶22 Those observations highlight another important distinction between
Roberts and this case. Roberts involved a material fact witness changing his story after
hearing the trial testimony of two other witnesses. 126 Ariz. at 94–95. Here, in contrast,
there is no indication that either of Bradford’s expert witnesses materially altered their
opinions based on their review of the other experts’ prior testimony, or that their trial
testimony varied from their prior reports or deposition. Cf. State v. Swillie, 357 N.W.2d
212, 215 (Neb. 1984) (noting that in the context of a Rule 615 violation, “[p]rejudice is
established where the witness’[s] testimony has changed or been influenced by what he
heard from other witnesses”).
¶23 To support her asserted presumption-of-prejudice standard when
“deliberate or intentional misconduct” makes “ascertaining prejudice practically
impossible,” Spring also cites Leavy v. Parsell, 188 Ariz. 69 (1997). In Leavy, “defense
counsel engaged in deliberate, serious misconduct” by repeatedly violating the trial
court’s pretrial orders. Id. at 70–72. There, we ruled that “prejudice should be inferred”
when a party’s counsel engages in misconduct, and
(1) the misconduct is significant, especially if the record establishes
knowing, deliberate violations of rules or court orders that a litigant may
confidently expect to be observed by his or her adversary; (2) the
misconduct is prejudicial in nature because it involves essential and
important issues, but the extent is impossible to determine in a close case;
and (3) the misconduct is apparently successful in achieving its goals.
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Opinion of the Court
Id. at 73.
¶24 Leavy is inapposite. In that case counsel directly violated the trial court’s
pretrial orders three times “with malice aforethought” and improperly commented on
some highly prejudicial, inadmissible evidence at least eleven times. Id. at 71 (internal
quotation marks omitted). The conduct involved in this case is not comparable to
counsel’s egregious, “significant misconduct affecting the essential rights of a litigant” in
Leavy. Id. at 73. Here, although Bradford’s counsel knowingly and deliberately furnished
the transcripts of Spring’s experts’ trial testimony to his own experts, the trial court
determined that his actions, though violating the Rule, were not in bad faith.
¶25 In addition, this is not a case in which the extent of any prejudice from the
violations “is impossible to determine.” Id. Rather, any significant deviation between
Bradford’s experts’ trial testimony and their prior reports and deposition testimony could
have been easily established. Although the trial court gave her the opportunity, Spring
made no showing that Bradford’s expert witnesses changed their testimony based on
their review of Spring’s expert witnesses’ trial testimony.
¶26 More apropos to our analysis and to providing a useful framework for
considering claims of prejudice is American Power Products, Inc. In considering Arizona
Rule of Evidence 606 and a bailiff’s improper communication with deliberating jurors,
we stated that “our rules charge the trial judge with deciding, based on the available
evidence, whether the error likely ‘affect[ed] the substantial rights of the parties’ such
that refusing to order a new trial would be ‘inconsistent with substantial justice.’”
239 Ariz. at 155 ¶ 17 (alteration in original) (quoting Ariz. R. Civ. P. 61). We further stated
that when an “improper communication creates a structural defect in the trial that
deprives a litigant of an essential right, the trial judge must conclusively presume
prejudice.” Id. at 156 ¶ 17. In all other cases, however, “the moving party is not required
to prove actual prejudice, but is required to demonstrate the objective likelihood of
prejudice.” Id.
¶27 Like the improper bailiff conduct at issue in American Power Products, a Rule
615 violation “may render it impossible to prove the extent of any prejudice,” but that
fact “does not warrant a presumption of prejudice and ordering a new trial in all cases.”
Id. at 155 ¶ 16. Instead, considering the Rule’s purpose, the nature, scope, and willfulness
of a Rule 615 violation, and the framework set forth in American Power Products, we
conclude that a rebuttable presumption of prejudice should apply only in those limited
cases in which a witness’s Rule 615 violation is substantial and, as in Roberts, makes
proving the existence of prejudice nearly impossible. Again, that is not the situation here.
In all other cases, the moving party must at least prove that a witness’s Rule 615 violation
gave rise to an “objective likelihood of prejudice.” Id. ¶ 17. On this record, the trial court
did not err in implicitly finding that standard unmet here.
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SPRING V. BRADFORD
Opinion of the Court
¶28 In sum, we agree with the court of appeals that the trial court “did not abuse
its discretion in assessing the impact of the Rule 615 violations or in fashioning an
appropriate remedy.” Spring, 241 Ariz. at 461 ¶ 24. Spring cross-examined Bradford’s
experts regarding their receipt and review of her experts’ prior trial testimony and was
permitted to argue that point to the jury. In addition, the trial court instructed the jury
with regard to Bradford’s two violations of the Rule, informing the jurors that Bradford
had an “affirmative duty” to abide by Arizona’s court rules and “not to disclose trial
testimony to anticipated witnesses prior to their testimony”; that Bradford’s counsel
(without knowledge of the court or Spring’s counsel) breached that duty by disclosing to
his experts the prior trial testimony of Spring’s corresponding experts; and that in
weighing the testimony of Bradford’s experts, the jurors should consider that each
defense expert “was presented in advance with trial testimony and expected questions of
Plaintiff’s counsel.”
¶29 As the court of appeals observed, “[p]otential remedies for violating an
exclusion order include contempt, allowing cross-examination regarding the violation,
instructing the jury regarding the violation, or under the right circumstances, precluding
the testimony.” Spring, 241 Ariz. at 461 ¶ 22; cf. Allison, 4 Ariz. App. at 500–01 (upholding
a trial court’s preclusion of two material fact witnesses’ testimony for violation of the
common law rule of exclusion). In light of the jury instructions the trial court gave, the
opportunity Spring was afforded to show that the defense experts’ testimony was altered
or affected by Bradford’s violations of the Rule, and the lack of any demonstrated
prejudice, the trial court did not abuse its discretion in denying Spring’s request to strike
or preclude their testimony. Cf. Jones, 185 Ariz. at 483 (stating that “[i]f a witness violates
rule 9.3(a), the trial court has discretion when deciding whether to admit that witness’s
testimony”). Nor did the court abuse its discretion in denying Spring’s motion for a new
trial.
IV.
¶30 We address one other point, primarily for future reference, relating to the
second issue on which we granted review. As noted above, one of the exceptions to Rule
615’s general exclusionary rule provides that the Rule “does not authorize excluding . . .
a person whose presence a party shows to be essential to presenting the party’s claim or
defense.” Ariz. R. Evid. 615(c). This exception “contemplates such persons as . . . an
expert needed to advise counsel in the management of the litigation.” Fed. R. Evid. 615
advisory committee’s note to 1972 proposed rules. Generally, a trial court has discretion
under Rule 615(c) in determining whether a particular witness’s presence is “essential”
and in permitting an expert witness to hear (or read) other witnesses’ testimony. See, e.g.,
Malek v. Fed. Ins., 994 F.2d 49, 53–54 (2d Cir. 1993); Polythane Sys., Inc. v. Marina Ventures
Int’l, Ltd., 993 F.2d 1201, 1209 (5th Cir. 1993); McGuire v. Caterpillar Tractor Co., 151 Ariz.
420, 425 (App. 1986).
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Opinion of the Court
¶31 Bradford argues that because expert witnesses are usually essential to the
presentation of a party’s medical malpractice claim or defense, they are always exempt
from the rule of exclusion under Rule 615(c). Spring, on the other hand, argues that,
based on Rule 615’s plain language, “it is not the witness who must be essential,” rather
it is “his or her presence (or reading of prior testimony).” Therefore, according to Spring,
“the essential nature of any witness (expert or lay) is irrelevant under Rule 615(c).”
¶32 The trial court seemingly agreed with Bradford’s interpretation of Rule
615(c), noting “that had [Bradford’s] counsel sought permission, the court likely would
have allowed both sides’ experts to review or observe trial testimony.” Spring, 241 Ariz.
at 459 ¶ 12. Similarly, 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” under “the essential witness exemption of Rule 615(c),” a
request the trial court indicated it likely would have granted in its discretion. Id. at 460
¶ 19.
¶33 To the extent the courts below suggested that in a medical malpractice case,
or in any case involving expert testimony, the Rule 615(c) exception necessarily applies
and should be granted merely upon a party’s request, we disagree. Again, expert
witnesses are not automatically exempt from the general rule of exclusion in Rule 615.
See Seschillie, 310 F.3d at 1213. And, as the court of appeals correctly observed elsewhere
in its opinion, before a trial court exempts a witness from the general rule of exclusion
under Rule 615(c), the party “requesting the . . . exemption [must] make ‘a fair showing’
that ‘the expert witness is in fact required for the management of the case.’” Spring, 241
Ariz. at 459 ¶ 14 (quoting Morvant, 570 F.2d at 630). This requirement appropriately
balances Rule 615’s text and the policy in favor of sequestration with a party’s need to
exempt from a court’s exclusion order any witnesses whose presence (or reading of prior
testimony) is essential to presenting the party’s claim or defense.
¶34 Contrary to Bradford’s assertion, the request and showing under Rule
615(c) must be made before, not after, a party engages in conduct that would otherwise
violate a court’s exclusion order, that is, before having a witness hear, or read, other
witnesses’ trial testimony. Although Bradford failed to properly or timely request an
exemption for his expert witnesses under Rule 615(c), that failure does not undermine
the trial court’s appropriate handling of the Rule 615 issue or its fashioning a suitable
remedy for Bradford’s violations in this case.
¶35 Finally, although counsel must comply with orders of the court (including
exclusionary orders issued under Rule 615), and trial courts should not countenance
willful violation of their orders, nothing in this opinion should be construed as limiting
or interfering with a party’s appropriate trial preparation or strategy, including meeting
with prospective trial witnesses, generally discussing their anticipated testimony, and
readying them for court appearance. We trust in the good faith, sound judgment, and
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Opinion of the Court
professionalism of the Arizona bar in that regard.
V.
¶36 For the reasons stated above, we affirm the trial court’s judgment and order
denying Spring’s motion for a new trial. We vacate paragraphs 19 and 33–34 of the court
of appeals’ opinion but otherwise affirm.
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