Arizona Court of Appeals Division One holds that expert witnesses are not automatically exempted from the rule of exclusion, but that a trial court may exercise its own discretion to exempt an expert witness from the rule.

Arizona Rule of Evidence 615 requires the court, upon request, to exclude witnesses so that they may not hear other witnesses’ testimony.  Excluded witnesses are also prohibited from reviewing transcripts of other witnesses’ testimony.  In this medical malpractice case, both parties agreed to invoke the rule, but the defendant’s expert witness reviewed the testimony of the plaintiff’s expert from the trial transcript.  The plaintiff moved to strike the defense expert’s testimony, but the trial court refused to do so, arguing that the defendant could have sought an exemption from the rule for its expert and that the court would likely have granted the exemption.  Instead, the trial court instructed the jury to weigh the defense expert’s prior knowledge when considering his testimony.

The Court of Appeals affirmed.  It held that, although an expert is not automatically exempted from the rule when it is invoked by the parties, a party may request that his expert be exempted under Rule 615(c), which permits the court to exempt certain “essential” witnesses.  It also held that the plaintiff had suffered no prejudice as a result of the defendant’s failure to request an exemption before permitting his expert to view trial transcripts.  First, distinguishing State v. Roberts, which held that prejudice must be presumed from failure to exclude fact witnesses, the Court held that no such prejudice must be presumed from the failure to exclude expert witnesses.  Further, the Court reasoned that, since the trial court had admitted that it would have granted the exemption if requested, the proper measure of prejudice was from the failure to give notice to plaintiff’s lawyer, and not from the testimony itself.  The curative jury instruction thus corrected any prejudice that may have occurred. 

Judge Cattani delivered the unanimous opinion, in which Judges Winthrop and Portley concurred.