Spring v. Bradford

• Decision Date: 23 October 2017
• Docket Number: No. CV-17-0068-PR.,CV-17-0068-PR.
• Citation: 403 P.3d 579
• Parties: Emma SPRING, Plaintiff/Appellant, v. Timothy R. BRADFORD, D.C., Defendant/Appellee.
• Court: Arizona Supreme Court

403 P.3d 579

Emma SPRING, Plaintiff/Appellant,

v.Timothy R. BRADFORD, D.C., Defendant/Appellee.

No. CV-17-0068-PR.

Supreme Court of Arizona.

Filed October 23, 2017

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.

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 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, 388 P.3d 849, 851 (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, 388 P.3d at 853. 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, 388 P.3d at 854.

¶ 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, 388 P.3d at 855, 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, 388 P.3d at 854 (citing Kosidlo v. Kosidlo , 125 Ariz. 32, 35, 607 P.2d 15, 18 (App. 1979), abrogated in part on other grounds by 125 Ariz. 18, 607 P.2d 1 (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, 388 P.3d at 851.

¶ 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, 303 P.3d 519, 521 (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, 917 P.2d 200, 212 (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, 367 P.3d 55, 58 (2016).

¶ 12 "We interpret court rules according to the principles of statutory construction." State v. Aguilar , 209 Ariz. 40, 47 ¶ 23, 97 P.3d 865, 872 (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, 341 P.3d 1149, 1151 (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, 52 P.3d 765, 767 (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, 406 P.2d 202 (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, 78 P. 138 (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, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) ); see also Opus 3 Ltd. v. Heritage Park, Inc. , 91 F.3d 625, 628 (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...