We blogged the Court of Appeals opinion here.
The Supreme Court agrees for the most part. “We hold that the rule . . . prohibits a party from providing prospective trial witnesses with transcripts of prior witnesses’ trial testimony.” Defendant violated the rule.
“We further hold . . . that a violation . . . is not presumptively prejudicial in a civil action,” at least the witnesses are experts. “[A] rebuttable presumption of prejudice should apply only in those limited cases in which a witness’s Rule 615 violation is substantial and . . . makes proving the existence of prejudice nearly impossible.” “In all other cases, the moving party must at least prove that a witness’s Rule 615 violation gave rise to an ‘objective likelihood of prejudice.'”
But the court adds that “even when no prejudice is shown, the trial court must take some corrective action by tailoring an appropriate remedy under the circumstances.”
The court also agrees that “violations involving fact witnesses are more likely to be prejudicial than violations involving expert witnesses.” But it thinks that the courts below may have gone a bit too far. “To the extent [they] suggested that in a medical malpractice case, or in any case involving expert testimony, the Rule 615(c) exception necessarily applies and should be granted merely upon a party’s request, we disagree. Again, expert witnesses are not automatically exempt from the general rule of exclusion in Rule 615.” And “the request and showing under Rule 615(c) must be made before, not after, a party engages in conduct that would otherwise violate a court’s exclusion order, that is, before having a witness hear, or read, other witnesses’ trial testimony.”