Doctor’s treated several broken bones of defendant Audra Talmadge’s three-month-old daughter. The state charged Talmadge with several counts of child abuse. But the defense asserted that the child’s bones were to blame.

Temporary Brittle Bone Disease (TBBD) caused the fractures argued the defense. TBBD is a controversial cousin to the well-known and better-accepted bone disease known as Osteogenesis Imperfecta. Dr. Marvin Miller was supposed to be the main defense witness on TBBD, but they could not successfully subpoena him from out of state. The trial court granted defense motion to take Dr. Miller’s testimony by videotape.

When the parties couldn’t agree on a date for the taping, the state went on the offensive. The state challenged Dr. Miller’s testimony as lacking general acceptance under the Frye test (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)). The court denied the Frye challenge but reversed its ruling allowing for videotaped testimony.

The defense then tried to get Dr. Colin Paterson of Scotland. Dr. Patterson is arguably the world’s greatest expert on TBBD. Defense disclosed Dr. Richard Roberts as a defense witness and later disclosed Dr. Paterson as a surrebuttal witness. The court granted the state’s motion to exclude Dr. Paterson’s testimony for late disclosure. At trial, Dr. Roberts testified and Talmadge was convicted on all charges.

But This Is That Rare Case

The Arizona Supreme Court held that precluding a witness should be a sanction of the last resort. The discretion of the trial court in allowing rebuttal testimony is great. The discretion to allow surrebuttal testimony is even greater. Only in rare cases will failure to allow surrebuttal testimony be error.

Dr. Paterson’s testimony would not have been cumulative, it went to the heart of the defense. Dr. Roberts’ expertise on TBBD was very limited. He had diagnosed only one case. Dr. Patterson has diagnosed over 800 cases. Consequently, the state’s experts were easily able to discredit Dr. Roberts. Dr. Robert’s relative lack of expertise prevented him from effectively rebutting the State expert’s harsh challenge to TBBD theories. Drs. Paterson and Miller had the expertise to respond to these criticisms.

Excluding Dr. Paterson and Dr. Miller’s testimony deprived Talmadge of her only defense. Without it, she had little hope of acquittal. Therefore, the Court found that excluding the testimony was reversible error.

The Court went on to comment about the unwillingness of the attorneys in the case to accommodate each other. Particularly the prosecutor’s attack on the admissibility of the TBBD testimony. We observe that this is a case in which adversarial hostility gained control with the result that justice went begging.

A Well-Reasoned Dissent

Justice Frederick Martone dissented from the opinion. He pointed out that the general rule that witness preclusion is a remedy of last resort applies only to the case-in-chief, not to rebuttal or surrebuttal testimony. Such testimony is wholly discretionary. The trial judge properly precluded surrebuttal testimony disclosed one day before trial.

Nor should we be criticizing the lawyering in this case, said Justice Martone. That was not an issue before us. We have an obligation to give lawyers notice and an opportunity to be heard before we draw into question their professionalism in a published opinion.