On how to apply the rule of exclusion of witnesses

At trial of this medical malpractice case the parties invoked the rule but the defense prepared its experts (one standard-of-care, the other causation) by showing them transcripts of the plaintiff’s experts’ testimony. Plaintiff found out about this on cross and moved to exclude the defense experts. The trial court concluded that Defendant had violated the rule but found no prejudice because the defense experts hadn’t changed their pre-trial opinions. It refused to exclude the experts but did instruct the jury about what had happened. The jury gave a defense verdict; Plaintiff’s motion for new trial was denied; Plaintiff appealed.

“[W]e hold that, by its terms, Rule 615 does not automatically exempt expert witnesses from exclusion [but] 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 to review transcribed testimony).” An expert isn’t automatically “essential” but 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 properly be based on other witnesses’ trial testimony.” But Defendant hadn’t asked permission so he violated the rule.

Plaintiff argued that prejudice must be presumed from this, citing a Supreme Court criminal case dealing with fact witnesses. But the court feels that “[n]o 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.” Plaintiff could show no such alteration.

The trial court’s remedy – an instruction rather than striking or excluding testimony — was within its discretion. The opinion mentions that the trial court found Defendant’s violation a mistake about the rule’s application, not an act of bad faith, but does not clarify what a lawyer’s motivation has to do with the question of whether experts changed their opinions.

For similar reasons the opinion affirms the new-trial ruling.

(Opinion: Spring v. Bradford)