                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                  EMMA SPRING, Plaintiff/Appellant,

                                   v.

             TIMOTHY R. BRADFORD, Defendant/Appellee.

                         No. 1 CA-CV 15-0505
                           FILED 1-12-2017


          Appeal from the Superior Court in Maricopa County
                         No. CV2011-098170
             The Honorable David M. Talamante, Judge

                              AFFIRMED


                              COUNSEL

Grysen & Associates, Spring Lake, Michigan
By B. Elliot Grysen

Law Office of Scott E. Boehm, PC, Phoenix
By Scott E. Boehm
Co-Counsel for Plaintiff/Appellant

Sanders & Parks, PC, Phoenix
By Mandi J. Karvis, Winn L. Sammons
Counsel for Defendant/Appellee
                         SPRING v. BRADFORD
                          Opinion of the Court



                                OPINION

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in
which Judge Lawrence F. Winthrop and Judge Maurice Portley1 joined.


C A T T A N I, Judge:

¶1            In this appeal, we consider whether and how the rule of
exclusion of witnesses under Rule 615 of the Arizona Rules of Evidence
applies to expert witnesses. We hold that, by its terms, Rule 615 does not
automatically exempt expert witnesses from exclusion. The superior court
may, however, exercise its discretion under subsection (c) of the rule—an
exemption for “essential” witnesses—to allow an expert witness to observe
other testimony (or to review transcribed testimony).

¶2            The defendant doctor in this medical malpractice case did not
request that his expert witnesses be exempted from exclusion, but
nevertheless provided the experts with transcripts of other witnesses’ trial
testimony in preparation for the experts’ testimony. The superior court
correctly concluded that the defendant violated Rule 615 by doing so, and
also appropriately addressed the minimal scope of resulting prejudice
through a jury instruction, rather than by striking the experts’ testimony.
Accordingly, and for reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶3            In January 2010, Emma Spring had her first appointment with
Dr. Timothy Bradford, a chiropractor, to address a “knot” in her shoulder.
After Bradford briefly massaged her shoulder, he used a “high velocity low
amplitude thrust” to adjust Spring’s neck. Spring immediately felt
significant pain.

¶4            Spring consulted a neurosurgeon, Dr. Daniel Lieberman, who
discovered a fragment of a herniated cervical disc compressing a nerve root
in her spine. Dr. Lieberman performed surgery to remove the disc fragment
and the remainder of the herniated disc, and he fused Spring’s spine.


1      The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


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                          SPRING v. BRADFORD
                           Opinion of the Court

Although Spring’s symptoms improved, she continued to experience pain
and weakness in her neck and left arm. Spring sued Bradford for medical
malpractice, alleging that Bradford had negligently performed the
chiropractic adjustment, thereby damaging her cervical spine.

¶5            At trial, the parties presented conflicting expert testimony.
Spring called as her standard of care expert Dr. Allen Bragman, who stated
that Bradford improperly used too much force and improperly used a
rotational maneuver during the adjustment. Bradford presented testimony
from Dr. Robert Iverson, who countered Dr. Bragman’s conclusions and
opined that Bradford’s adjustment technique was appropriate.

¶6           Spring presented causation testimony from Dr. Lieberman,
who stated that the timing of Spring’s symptoms and the type of disc
damage left him with “virtually no doubt” the chiropractic treatment had
caused her injury. Bradford offered controverting causation testimony
from Dr. Allen Hamilton, who testified that Spring had a preexisting disc
herniation that became “suddenly symptomatic” following the
manipulation, and that the cause of the injury was uncertain absent
evidence regarding the extent of Spring’s preexisting condition.

¶7           The jury returned a 6-2 verdict in favor of Bradford. The
superior court denied Spring’s motion for new trial, and Spring timely
appealed. We have jurisdiction under Arizona Revised Statutes (“A.R.S.”)
§ 12-2101(A)(1), (5)(a).2

                               DISCUSSION

¶8           Spring argues that the superior court erred in addressing
Bradford’s Rule 615 violations. She argues in particular that the court erred
by declining to strike or preclude testimony by Bradford’s experts as a
remedy for the violations.

¶9            We review for an abuse of discretion the superior court’s
rulings on the admission or exclusion of evidence, as well as its assessment
of appropriate remedies for rule violations. Sandretto v. Payson Healthcare
Mgmt., Inc., 234 Ariz. 351, 355, ¶ 8 (App. 2014); see also State v. Jones, 185
Ariz. 471, 483 (1996) (regarding remedy for violation of parallel rule of
criminal procedure); United States v. Washington, 653 F.3d 1251, 1268 (10th
Cir. 2011). We review the superior court’s interpretation of the rule of


2     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                            Opinion of the Court

exclusion of witnesses de novo. See State v. Steinle, 239 Ariz. 415, 417, ¶ 6
(2016).

I.     The Rule of Exclusion.

¶10           Rule 615 requires the court, upon request, to exclude
witnesses “so they cannot hear other witnesses’ testimony. Excluded
witnesses may not remain in the courtroom to hear the testimony of other
witnesses, nor may either side share with them other witnesses’ transcribed
trial testimony. See Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1373
(5th Cir. 1981);3 see also McGuire v. Caterpillar Tractor Co., 151 Ariz. 420, 425
(App. 1986). The rule is designed to prevent one witness’s testimony from
influencing that of another, and thus to prevent “fabrication, inaccuracy,
and collusion.” Fed. R. Evid. 615 advisory comm. note to 1972 proposed
rules; United States v. Hobbs, 31 F.3d 918, 921 (9th Cir. 1994).

¶11           At the beginning of trial, with both parties’ agreement, the
court ordered that the rule of exclusion of witnesses would be in effect. But
while cross-examining Dr. Hamilton (the defense causation expert),
Spring’s counsel learned that Bradford’s counsel had provided Dr.
Hamilton with a transcript of Spring’s causation expert’s trial testimony.
Bradford’s counsel had similarly provided Dr. Iverson (the defense
standard of care expert) with a transcript of the trial testimony of Spring’s
standard of care expert. Spring argued that this violated the witness
exclusion rule and asked the court to strike Dr. Hamilton’s testimony and
preclude Dr. Iverson from testifying.

¶12           The superior court found that Bradford’s counsel had
violated the exclusion order by providing trial transcripts to the defense
experts, but noted that had counsel sought permission, the court likely
would have allowed both sides’ experts to review or observe trial
testimony. The court further found that the violations had not prejudiced
Spring, and thus denied the request to strike/preclude the defense experts’
testimony (although with the caveat that the court would consider striking
portions of the testimony if Spring were to point out any actual change from
the expert’s pretrial opinion). The court instructed the jury, however, that
Bradford’s attorney had (without Spring’s knowledge) disclosed plaintiff’s


3       The rule has been amended to conform to Federal Rule of Evidence
615, see Ariz. R. Evid. 615 cmt. to 2012 amendment, so we may consider as
guidance federal case law interpreting the federal rule. See, e.g., State v.
Campoy, 220 Ariz. 539, 546, ¶ 18 (App. 2009); Haroutunian v. Valueoptions,
Inc., 218 Ariz. 541, 548 n.8, ¶ 18 (App. 2008).


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                           SPRING v. BRADFORD
                            Opinion of the Court

experts’ trial testimony for the defense experts’ review despite the rule of
exclusion being in effect, and that in weighing the testimony of Bradford’s
experts, the jury should take into consideration the fact that the experts
were presented in advance with trial testimony.

       A.     Exemption from Exclusion.

¶13           Rule 615 includes five express exemptions for witnesses not
subject to exclusion, one of which is relevant here: “a person whose
presence a party shows to be essential to presenting the party’s claim or
defense.” Ariz. R. Evid. 615(c). Citing this exemption, Bradford asserts that
experts in medical malpractice litigation are always essential witnesses and
thus are always exempt from exclusion. But even though experts do not
generally provide “fact” testimony that could be influenced by other
witnesses’ testimony, the language of the rule does not provide a blanket
exemption for experts; rather, it authorizes the superior court to allow an
exception to exclusion if a party “shows” the witness’s presence to be
essential. Ariz. R. Evid. 615(c); see also Morvant v. Constr. Aggregates Corp.,
570 F.2d 626, 629–30 (6th Cir. 1978) (recognizing that expert witnesses are
not automatically exempted from sequestration as essential witnesses
under Rule 615 and noting that “had the framers intended it, they would
have said so, or added [an additional] exception”); United States v. Seschillie,
310 F.3d 1208, 1213 (9th Cir. 2002) (same); Miller, 650 F.2d at 1373–74
(“Whether or not it would be reasonable for a trial court to exempt an expert
witness from a sequestration order, there is no required exemption implied
under rule 615.”).

¶14             Moreover, although an expert witness does not normally
testify to facts, there are circumstances in which an expert may do so.
Morvant, 570 F.2d at 630. In this case, for example, Spring’s treating
neurosurgeon, Dr. Lieberman, testified both as a fact witness regarding
Spring’s injury and treatment, and also as Spring’s causation expert. The
burden, therefore, properly remains on 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.” Id.; accord Opus 3 Ltd. v. Heritage
Park, Inc., 91 F.3d 625, 629 (4th Cir. 1996).

¶15          Although we hold that, by its terms, Rule 615 does not
automatically exempt expert witnesses from exclusion, the superior court
may nevertheless exercise its discretion under the “essential” witness
exemption of Rule 615(c) to allow an expert to listen to other testimony (or




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                           SPRING v. BRADFORD
                            Opinion of the Court

to review transcribed testimony).4 See McGuire, 151 Ariz. at 425 (finding no
error in superior court’s decision “permitt[ing]” defendant to use
transcribed testimony for expert witness’s preparation); 1 McAuliffe,
Arizona Practice Series: Law of Evidence § 615:1 (4th ed. 2016) (“[E]ven though
an exclusion order has been requested and made, the Court can permit one
side’s expert witness to hear or review the testimony of the opposing side’s
expert in order to be in a position to suggest areas for cross-examination.”);
see also Fed. R. Evid. 615 advisory comm. note to 1972 proposed rules
(noting that the essential witness category “contemplates such persons as
. . . an expert needed to advise counsel in the management of the litigation”);
Seschillie, 310 F.3d at 1213. And in exercising its discretion, the 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
properly be based on other witnesses’ trial testimony. See Ariz. R. Evid.
703; Morvant, 570 F.2d at 629 (noting “little, if any, reason for sequestering
a witness who is to testify in an expert capacity only and not to the facts of
the case”); see also Hill v. Porter Mem’l Hosp., 90 F.3d 220, 223 (7th Cir. 1996).

¶16            Here, however, Bradford’s counsel did not request that the
court exercise its discretion to allow an exemption for expert witnesses.
Accordingly, 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.

       B.     Prejudice.

¶17           Bradford’s rule violation notwithstanding, Spring is not
entitled to the relief she seeks because she has not shown that she was
prejudiced by the violation. Spring argues that the superior court was
required to presume prejudice stemming from the rule violation. But there
is no such requirement. See Kosidlo v. Kosidlo, 125 Ariz. 32, 35 (App.) (noting
that a party asserting Rule 615 error in a civil case must show prejudice),
disapproved in part on other grounds, 125 Ariz. 18 (1979).




4       Although Spring argues allowing exemption of experts under Rule
615(c) only benefits defendants, the rule applies equally to a plaintiff’s
expert who testifies during the case-in-chief based on facts presented in the
plaintiff’s lay witnesses’ testimony, as well as to a plaintiff’s expert who
testifies in rebuttal. See Davis v. State, 787 S.E.2d 221, 229 (Ga. 2016).



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                          SPRING v. BRADFORD
                           Opinion of the Court

¶18           Spring relies on the Arizona Supreme Court’s statement in a
criminal case that the superior court’s “failure to honor an exclusionary
request is presumed prejudicial unless the absence of prejudice is clearly
manifest from the record.” State v. Roberts, 126 Ariz. 92, 94 (1980).5 But
Roberts involved a failure to honor an exclusionary request in the context of
fact witnesses. Id. 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. Here, Spring’s counsel received
documentation of Bradford’s experts’ opinions before trial, and thus was
well positioned to recognize any change in those opinions resulting from
the experts’ access to trial testimony. And Spring has not detailed any such
change or any other form of prejudice resulting from the Rule 615
violations.

¶19            Moreover, 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. The distinction is critical because, as described above,
the superior court could have—and in fact indicated it likely would have—
exercised its discretion to allow the expert witnesses to review relevant trial
transcripts under the essential witness exemption of Rule 615(c). The
relevant prejudice in this case thus does not stem from the expert’s review
of prior testimony, but rather only from Spring’s counsel lack of advance
notice that the defense experts had reviewed trial transcripts.
Consequently, the scope of potential prejudice is significantly more limited
than the potential prejudice from allowing fact witnesses to review other
fact witnesses’ testimony before testifying. Compare Roberts, 126 Ariz. at 94
(noting that it would be impossible to show how a fact witness’s testimony
had been influenced by observation of others’ testimony), with Hill, 90 F.3d
at 223 (noting that pretrial expert reports and depositions mitigate the risk
that experts might improperly tailor their testimony in violation of Rule
615).

¶20           Accordingly, the superior court did not err by declining to
apply a presumption of prejudice resulting from Bradford’s technical Rule
615 violations.




5      Spring also cites State v. Fulminante, 193 Ariz. 485 (1999), for this
principle. But the court in Fulminante did not reach the issue of prejudice
because the witness, as a crime victim, was properly exempted from
exclusion. See id. at 502, ¶¶ 58–59.


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                           SPRING v. BRADFORD
                            Opinion of the Court

       C.     Remedy.

¶21           Spring further argues that the superior court’s remedy for the
Rule 615 violations was inadequate. She claims that the court should have
struck or precluded the defense experts’ testimony, rather than simply
instructing the jury to consider the experts’ access to trial transcripts in
weighing the evidence.

¶22            The superior court has discretion to determine an appropriate
remedy given the particular circumstances of a rule violation. See
Montgomery Ward & Co. v. Superior Court, 176 Ariz. 619, 621–22 (App. 1993)
(describing superior court’s discretion to determine appropriate sanction
for discovery violation); see also Washington, 653 F.3d at 1268. Potential
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.
United States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997) (citing Holder v. United
States, 150 U.S. 91, 92 (1893)); Hobbs, 31 F.3d at 921 (same). An intentional
violation of the rule militates in favor of a more significant sanction. See
Washington, 653 F.3d at 1268–69.

¶23           Spring asserts that Bradford’s counsel intentionally violated
the rule in order to secure an unfair advantage and that his actions
constituted “secret, deliberate and repeated misconduct under Rule 615.”
But the superior court (which was in the best position to assess counsel’s
motivations and the effects of counsel’s actions) found that counsel’s
actions were based on a mistaken interpretation of the rule’s strictures,
rather than bad faith.

¶24            Given the absence of actual prejudice, and in light of the
court’s statements that it would have exempted the experts from exclusion
if requested, the court did not abuse its discretion by imposing a lesser
sanction than outright preclusion of the testimony. The instructions
informing the jury of the violations and directing the jury to consider prior
knowledge of opposing experts’ testimony in weighing the defense experts’
testimony provided a remedy that was closely tailored to the scope of the
violation. See Hill, 90 F.3d at 223; see also Holder, 150 U.S. at 92 (noting that
a witness’s “testimony is open to comment to the jury” to address a
sequestration violation). Accordingly, the superior court did not abuse its
discretion in assessing the impact of the Rule 615 violations or in fashioning
an appropriate remedy.




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                           SPRING v. BRADFORD
                            Opinion of the Court

II.    New Trial Based on Aggregate Misconduct.

¶25           Spring argues that the superior court erred by denying her
motion for new trial premised on aggregate misconduct—the Rule 615
violations, together with a disclosure violation for failing to disclose
impeachment evidence used by Bradford’s counsel during cross-
examination. We review the court’s ruling regarding the disclosure
violation, as well as the denial of a motion for new trial, for an abuse of
discretion. See Leavy v. Parsell, 188 Ariz. 69, 72 (1997); Sandretto, 234 Ariz. at
355, ¶ 8.

¶26          During his deposition, Spring’s standard of care expert Dr.
Bragman characterized “subluxation,” Bradford’s initial diagnosis of
Spring’s shoulder pain, as “nonsense.” At trial, Bradford’s counsel
impeached Dr. Bragman with evidence that websites for chiropractic clinics
with which Dr. Bragman was affiliated referenced subluxation (a slight
displacement of a vertebra). The website evidence had not previously been
disclosed, and at Spring’s request, the court instructed the jury that
Bradford had failed to disclose the website documents despite an
affirmative duty to do so, and to disregard the questioning relating to the
websites.

¶27           Under Arizona Rule of Civil Procedure 59(a)(2), the superior
court may grant a new trial on the basis of misconduct that materially
affected the moving party’s rights. See also Grant v. Ariz. Pub. Serv. Co., 133
Ariz. 434, 451 (1982). The remedy of a new trial may be applied not as a
form of discipline for counsel, but rather “to prevent a miscarriage of
justice,” id. (citation omitted), “when it appears probable that the
misconduct ‘actually influenced the verdict.’” Leavy, 188 Ariz. at 72
(quoting Grant, 133 Ariz. at 454).

¶28           Spring argues that the superior court erred under Leavy by not
inferring prejudice stemming from Bradford’s counsel’s aggregate rules
violations. In Leavy, the Arizona Supreme Court stated that prejudice
should be inferred (unless rebutted) in the case of significant misconduct
(particularly knowing or deliberate violations) that bears on essential issues
and renders the extent of actual prejudice impossible to determine, and that
“is apparently successful in achieving its goals.” 188 Ariz. at 73.

¶29           Here, any misconduct was, in context, relatively insignificant.
As described above, the Rule 615 violations were largely technical rather
than substantive, and the non-disclosure was of information used only
briefly for impeachment on a collateral issue. Although Spring claims the



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                          SPRING v. BRADFORD
                           Opinion of the Court

misconduct represented deliberate violations, the court specifically found
otherwise. And the misconduct did not render the extent of prejudice
impossible to determine; rather, the superior court reasonably assessed the
relatively minor scope of resulting prejudice. Further, the court reasonably
concluded that any such prejudice was adequately addressed by Spring’s
opportunity to cross-examine the experts and by the instructions allowing
the jury to consider the experts’ receipt of trial transcripts, as well as the
instruction directing the jury to disregard the brief website discussion.
Finally, although Spring asserts that the defense verdict is evidence that
Bradford’s counsel’s actions successfully swayed the jury, the superior
court reasonably rejected that argument and found that the verdict was
supported by the evidence. Accordingly, the court did not abuse its
discretion by denying Spring’s request for a new trial on grounds of
aggregate misconduct.

                               CONCLUSION

¶30            The judgment is affirmed. As the prevailing party, Bradford
is entitled to his costs on appeal upon compliance with ARCAP 21.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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