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Supreme Court of Missouri Holds No Waiver of Work Product Privilege When Party Rescinds Designation of Expert Witness Without Disclosing the Expert's Analysis or Conclusions

State ex rel. Jason H. Malashock v. The Honorable Michael T. Jamison, SC 95606 (November 1, 2016)

The Supreme Court of Missouri reversed a trial court’s order permitting the deposition of a plaintiff expert witness on the grounds that, by designating the expert, the plaintiff had waived the work product privilege.  The Court held that designating an expert witness pursuant to Rule 56.01 does not, standing alone, irrevocably waive the work product privilege.  The case provides guidance to trial practitioners on the concept of waiving work product privilege protection of expert witness opinions.

The personal injury plaintiff was injured when his utility terrain vehicle overturned.  Plaintiff filed suit, alleging the vehicle’s roof failed, causing his injuries.  He designated four expert witnesses expected to testify at trial.  The designation of one of the experts stated he would testify regarding the vehicle’s performance and the forces involved in the accident.  The designation did not disclose the expert’s analysis or conclusions.

Approximately two weeks later, plaintiff’s counsel sent an e-mail to defense counsel stating “We have de-endorsed” the expert witness.  In response, the defendant filed a Motion to allow a deposition of the expert.  The trial court sustained the Motion on the grounds that, by designating the expert, the plaintiff had waived the work produce privilege.  Plaintiff appealed this decision.

On appeal, the Supreme Court of Missouri discussed the nature of the protections afforded by the work product privilege and the concept of waiver.  Because the plaintiff did not actually disclose the expert’s opinions and conclusions, the Court found the plaintiff did not waive the work product privilege, even though he had endorsed, and later dis-endorsed the expert.

The Court found support for its holding in Rule 56.01 and case law.  Rule 56.01(b)(4)(b) authorizes discovery of expert witness opinions via deposition.  Even though a designated expert is subject to discovery, it does not follow that the act of designation in and of itself irrevocably waives the work product privilege.  Instead, the designation of an expert merely begins a process of waiving privilege that is not complete unless and until there is a disclosing event, which is the actual disclosure of the expert’s opinions and conclusions.  Because the plaintiff withdrew the expert’s designation before disclosure of the expert’s opinions and conclusions, there was no disclosing event that waived the work product privilege.