Can a trial court exclude an expert witness from hearing or otherwise reviewing the trial testimony of other witnesses? That is the issue the Arizona Court of Appeals addressed in this medical malpractice case. The court held the “rule of exclusion of witnesses” contained in Rule 615 of the Arizona Rules of Evidence, which generally requires a trial court (at a party’s request) to “order witnesses excluded so that they cannot hear other witnesses’ testimony” and allows a trial court (in the absence of such a request) to order the exclusion of witnesses on its own, applies to expert witnesses. But the court also held that a trial court may exercise its discretion under subsection (c) of the rule–an exemption for “essential” witnesses–to allow an expert witness to observe other trial testimony or to review transcribed trial testimony.
The patient in this case sued her chiropractor, alleging he negligently performed an adjustment of her neck, causing significant injuries to her spine. At the beginning of trial, with the agreement of both parties, the trial court ordered the rule of exclusion of witnesses would be in effect. The attorney for the chiropractor did not request that his expert witnesses be exempted from exclusion. Mistakenly believing those experts were automatically exempted under Rule 615(c), the chiropractor’s attorney then provided the chiropractor’s experts with transcripts of other witnesses’ trial testimony in preparation for the experts’ testimony at trial. During cross-examination of one of the chiropractor’s experts, the attorney for the patient discovered the chiropractor’s attorney had supplied the chiropractor’s experts with the transcripts of the trial testimony given by the patient’s experts. The patient argued these actions violated the witness exclusion rule and asked the court to strike the testimony of the chiropractor’s first expert and preclude the chiropractor’s second expert from testifying.
The trial court agreed the chiropractor’s attorney had violated witness exclusion rule, but declined to impose the remedies suggested by the patient. The trial court found the violations had not prejudiced the patient, noting the trial court likely would have allowed both sides’ experts to review or observe trial testimony had the attorney for either party sought the court’s permission. As a remedy for the violations, the trial court instructed the jury that the chiropractor’s attorney had (without the patient’s knowledge) disclosed the patient’s experts’ trial testimony to the chiropractors’ experts for their review despite the rule of exclusion being in effect, and that in weighing the testimony of the chiropractors’ experts, the jury should take into consideration the fact that the experts were presented in advance with trial testimony.
The court of appeals noted that of the five exemptions to the rule of exclusion of witnesses contained in Rule 615, only the exemption found in subsection (c) was at issue in this case. That subsection provides that Rule 615 does not authorize excluding “a person whose presence a party shows to be essential to presenting the party’s claim or defense.” The court of appeals held this language “does not provide a blanket exemption for experts; rather, it authorizes the superior court to allow an exemption to exclusion if a party ‘shows’ the witness’s presence to be essential.” The burden rests with the party requesting the Rule 615 exemption to make a fair showing that the expert witness is in fact required for the management of the case. If that burden is met, the trial court may allow an expert to listen to other testimony or review transcribed testimony. And in exercising its discretion to determine whether a particular expert witness is “essential,” the trial court “may properly consider that the anti-fabrication purpose of Rule 615 applies principally to fact witnesses, that an expert may review other experts’ opinion reports and pretrial depositions, and that an expert’s opinion may property be based on other witnesses’ trial testimony.”
Appling these principles to the facts before it, the court of appeals ruled the trial court did not err in finding the chiropractor’s counsel had violated Rule 615 by providing trial transcripts to the chiropractor’s experts without first requesting exemption from the rule of exclusion of witnesses. The court of appeals also held the trial court did not err in finding the patient was not prejudiced by these violations. The court of appeals rejected the patient’s argument that the trial court was required to presume prejudice stemming from the rule violation. It explained: “No 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.” And in this case, the court of appeals found there was no actual prejudice because the trial court said it would have exempted the experts from the rule of exclusion of witnesses had either party requested it.
The court of appeals went on to affirm the remedy employed by the trial court: instructing the jury to consider the experts’ access to trial transcripts in weighing the evidence. The court of appeals held the superior court “has discretion to determine an appropriate remedy given the particular circumstances of a rule violation.” It noted potential remedies for violating an order imposing the rule of exclusion of witnesses in a case include contempt, allowing cross-examination regarding the violation, instructing the jury regarding the violation, or (under the right circumstances) precluding the expert from testifying. Because there was no prejudice to the patient in this case from the rule violation, the trial court did not abuse its discretion by imposing the lesser sanction of instructing the jury regarding the violation–a remedy the court of appeals said was “closely tailored to the scope of the violation.”
So what can attorneys learn from this case? If the rule of exclusion of witnesses has been invoked and you want to allow your expert to hear live trial testimony or view trial transcripts, ask the trial court to exempt your expert witness from the rule of exclusion of witnesses under Rule 615(c).
To read the court of appeals full opinion in this case, click here.