## Facts

- Kathy McAbee underwent colorectal surgery by Dr. Darren Chapman in January 2010, including colon resection and creation of a colostomy.
- In May 2010, Chapman performed surgery to reverse the colostomy and reconnect the colon (an anastomosis) using a surgical stapling device.
- McAbee later developed severe complications, including a fistula between the bladder and rectum, and required additional surgeries.
- McAbee sued Chapman for medical malpractice, alleging negligent performance of the anastomosis and misuse of the stapler causing the fistula and resulting damages.
- At trial, both sides presented expert testimony on the standard of care and causation; McAbee’s expert attributed the fistula to stapler use, while Chapman’s experts disputed negligence and causation.
- Before trial, McAbee requested sequestration of witnesses under Kentucky Rule of Evidence (KRE) 615, including experts.
- The trial court allowed Chapman’s expert witnesses to remain in the courtroom under the “essential person” exception, based on the view that it would be more helpful for them to hear live testimony.
- The jury returned a defense verdict for Chapman; the Court of Appeals affirmed, finding any sequestration error harmless.

## Issues

1. Whether the trial court abused its discretion under KRE 615 by exempting the defense expert witnesses from sequestration as “essential” without a specific, adequate showing.
2. If so, whether the failure to sequester the defense experts required reversal or was harmless error.

## Decision

- The Supreme Court of Kentucky held the trial court abused its discretion by exempting Chapman’s experts from sequestration without a sufficient, case-specific showing they were “essential” under KRE 615.
- The Court held the error was harmless because the record did not show that the experts’ courtroom presence substantially affected McAbee’s substantial rights or the verdict.
- The Court affirmed the defense judgment.

## Legal Principles

- Upon request, KRE 615 generally requires exclusion of witnesses from hearing other witnesses’ testimony to reduce tailoring, fabrication, and collusion.
- Expert witnesses are not automatically exempt from sequestration; the “essential person” exception requires more than general assertions that presence would be helpful or convenient.
- A party seeking exemption under KRE 615 must make an adequate, case-specific showing that the witness’s presence is necessary to manage or present the case.
- Misapplication of KRE 615 warrants reversal only if the error is prejudicial; harmless-error review focuses on whether the error likely influenced the outcome.

## Conclusion

The court clarified that experts remain subject to KRE 615 and may be exempted only upon a concrete showing of necessity, but it affirmed the defense verdict because the erroneous denial of sequestration did not materially affect the trial’s outcome.


McAbee v. Chapman, 504 S.W.3d 18 (Ky. 2016)