Spring v. Bradford (10/23/2017)

November 13, 2017

The Arizona Supreme Court holds that a witness’s violation of an exclusion order under Ariz. R. Evid. 615 is presumptively prejudicial only if the violation is “substantial” and makes proving prejudice nearly impossible; otherwise, the burden is on the moving party to show “an objective likelihood of prejudice.”

Spring sued Bradford for medical malpractice.  At the start of trial, the court granted the parties’ request under Ariz. R. Evid. 615 to exclude potential witnesses from the courtroom during other witnesses’ testimony.  When Spring learned that Bradford’s experts had received transcripts of prior witness testimony before taking the stand, she moved to strike and preclude their testimony.  Although the trial court agreed that Bradford had violated Rule 615, it determined that Spring had not shown any prejudice and thus declined to limit his experts’ testimony.  The jury returned a verdict for Bradford; Spring appealed.

The Arizona Court of Appeals, Division One, affirmed.  The Arizona Supreme Court subsequently granted review to address whether a violation of Rule 615 in a civil case creates a presumption of prejudice, and whether Rule 615(c)’s exemption for “essential” witnesses automatically applies to experts.

As an initial matter, the Supreme Court agreed with the Court of Appeals’ conclusion that providing a witness with transcripts of earlier testimony violated the spirit and purpose of Rule 615.  The Court also agreed, however, that Bradford’s violation of the exclusion order did not give rise to a presumption of prejudice. 

Citing Leavy v. Parsell, 188 Ariz. 69 (1997), and American Power Products, Inc. v. CSK Auto, Inc., 239 Ariz. 151 (2016), the Court reasoned that a rebuttable presumption of prejudice should apply only in cases where the violation is “substantial” and makes proving prejudice “nearly impossible.”  The burden in all other cases is on the moving party to prove that a witness’s Rule 615 violation created an “objective likelihood of prejudice.”  Because Spring failed to show any prejudice resulting from the Rule 615 violation, despite having the opportunity to do so, the Court ruled that it was within the trial court’s discretion to admit the challenged expert testimony.

The Court also clarified that expert witnesses are not automatically exempt from exclusion under Rule 615(c) as witnesses “essential to presenting the party’s claim or defense.”  Rather, a party must request the exemption and “make a fair showing that the expert witness is in fact required for the management of the case.”  Spring v.Bradford, 241 Ariz. 455, 459 ¶ 14 (App. 2017) (internal quotation marks and citation omitted).

Vice Chief Justice Pelander authored the unanimous opinion.