388 P.3d 849
Ariz. Ct. App.2017Background
- Plaintiff Emma Spring alleged chiropractic malpractice after a neck adjustment by Dr. Timothy Bradford led to a herniated cervical disc and surgery; she sued for negligence.
- Trial featured dueling experts on standard of care (Dr. Bragman for Spring; Dr. Iverson for Bradford) and causation (Dr. Lieberman for Spring; Dr. Hamilton for Bradford).
- The court invoked Rule 615 (witness exclusion) at the start of trial; Bradford’s counsel provided defense experts with transcripts of plaintiff’s experts’ trial testimony without seeking the court’s permission.
- The superior court found a Rule 615 violation but concluded Spring suffered no actual prejudice, declined to strike the defense experts, and gave a jury instruction informing jurors of the disclosure.
- Spring moved for a new trial based on aggregate misconduct (Rule 615 violations plus a limited non-disclosure used for impeachment); the court denied the motion. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 615 automatically exempts experts from sequestration | Spring: Experts should not be allowed to hear other testimony; violation harms trial fairness | Bradford: Experts in malpractice cases are essential and thus exempt | Court: Rule 615 does not automatically exempt experts; exemption possible under 615(c) if party shows witness is essential |
| Whether providing trial transcripts to defense experts violated Rule 615 | Spring: Disclosure violated sequestration and warranted striking/preclusion | Bradford: Experts needed transcripts; exemption applies (or court would have allowed it) | Court: Providing transcripts without seeking 615(c) permission violated Rule 615 |
| Whether prejudice is presumed from the Rule 615 violation | Spring: Presumed prejudice (citing criminal precedent) such that remedy must follow | Bradford: No presumption; plaintiff must show actual prejudice | Court: No presumption in civil/expert context; plaintiff failed to show actual prejudice given prior disclosures and available pretrial materials |
| Appropriate remedy for the Rule 615 violation and related nondisclosures | Spring: Strike/preclude experts or grant new trial for aggregate misconduct | Bradford: Court’s jury instruction and cross-examination were adequate; no bad faith | Court: Trial court acted within discretion; jury instruction and cross-examination were proportionate; no new trial warranted |
Key Cases Cited
- Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981) (expert witnesses are not automatically exempt from sequestration)
- Morvant v. Constr. Aggregates Corp., 570 F.2d 626 (6th Cir. 1978) (party seeking exemption must show expert is required for case management)
- United States v. Seschillie, 310 F.3d 1208 (9th Cir. 2002) (no required exemption for experts under Rule 615)
- McGuire v. Caterpillar Tractor Co., 151 Ariz. 420 (App. 1986) (permitting use of transcribed testimony for expert preparation was not error)
- State v. Roberts, 126 Ariz. 92 (1980) (presumption of prejudice where exclusion request for fact witnesses is ignored)
- Hill v. Porter Mem’l Hosp., 90 F.3d 220 (7th Cir. 1996) (pretrial expert reports/depositions mitigate sequestration concerns)
- Leavy v. Parsell, 188 Ariz. 69 (1997) (new trial may be granted when misconduct probably influenced the verdict)
- Holder v. United States, 150 U.S. 91 (1893) (court may comment to jury and fashion remedy for sequestration violations)