Twitter LinkedIn Share this page Facebook RSS

Blogs

Missouri Law BlogLegal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

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

November 1, 2016 | John Mahon, Jr.

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.

Subscribe
About Missouri Law Blog

The BSCR Missouri Law Blog examines significant developments, trends and changes in Missouri law on a broad range of topics of interest to Missouri practitioners and attorneys and businesses with disputes subject to Missouri law. Learn more about the editor, David Eisenberg.

DISCLAIMER

The Missouri Law Blog is made available by Baker Sterchi Cowden & Rice LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. Your use of this blog site alone creates no attorney client relationship between you and the firm.

CONFIDENTIAL INFORMATION

Do not include confidential information in comments or other feedback or messages related to the Missouri Law Blog, as these are neither confidential nor secure methods of communicating with attorneys. The Missouri Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.