JEFFERSON CITY, Mo. (Legal Newsline) – The Supreme Court of Missouri ruled in November that a work-product privilege waiver does not apply to expert witnesses dismissed by a legal party prior to a deposition.

The decision reverses a trial court finding which said the defendant had a right to access such work.

The case, State ex rel. Malashock v The Honorable Michael T. Jamison, involved a consumer who sued Chesterfield Valley Sports Inc. when his purchased utility-terrain vehicle (UTV) flipped and the roof of the vehicle allegedly failed to protect the plaintiff, who was seriously injured.

As part of his case, Jason Malashock enlisted the services of four expert witnesses. One of these experts, Herbert Newbold, who was set to address forensic and product liability issues regarding the incident, was released two weeks later.

Trial attorney and products liability attorney, John F Mahon Jr. of Williams Venker & Sanders in St. Louis, told Legal Newsline, “There are a variety of strategic reasons that a party might endorse an expert, and then later dis-endorse the expert. This applies to plaintiffs and defendants alike.”

Newbold, the expert in question, also spoke with Legal Newsline and quickly ruled out the belief that he had produced results unfavorable to the plaintiff.

“Anything that I would say to them [the defense] was not going to help their case. They thought that because of what happened but that is absolutely not true,” Newbold said.

Newbold stated that the reason for his dismissal, while unusual in his experience, was due purely to a legal strategy pursued by the plaintiff and stated that Malashock’s suit is still a “great case.”

Despite this assertion, the defense’s move was made in the apparent belief that Newbold may have come to conclusions favorable to their case so Chesterfield’s attorneys moved to depose Newbold.

Mahon, while saying the defense’s intentions are unknown, seemed to allow for this possibility.

“Presumably, the defense believed the expert would express opinions harmful to plaintiff’s case, which was why plaintiff’s counsel dis-endorsed the expert,” said Mahon.

The trial court agreed that the plaintiff had designated and disclosed Newbold as a witness, and had repeatedly tried to protect Newbold’s work. A witness waiver was never issued by the plaintiff, thus allowing the defendant to access Newbold’s report and opinion.

The plaintiff appealed to the state Supreme Court and moved to exempt Newbold’s findings using a writ of prohibition method called the work-product privilege waiver. The trial court concurred with the plaintiff.

The work-product privilege waiver states that the disclosed work done by witnesses or other entities for a party to a legal matter is protected, even if that entity is dismissed by the party. It is one of the two granted immunities for the protection of a legal party’s privy information, the other being attorney-client privilege.

However, the state Supreme Court, which has the power to review remedial writs like that submitted by Malashock, found that the work-product privilege waiver does not exempt information and findings from discovery if they never reach the deposition stage, because the legally required and immunized "disclosing event" was never allowed to occur.

The court found that while a writ of prohibition is an “appropriate remedy” for protecting the work of a client’s experts, the law stated that “once an expert is designated as a trial witness, ‘[the law] authorizes discovery by deposition of facts and opinions to which the expert is expected to testify.’ 

"The fact that a designated expert witness is subject to discovery does not mean that the act of designation irrevocably waives the work product privilege. Instead, the ‘designation of an expert as a trial witness begins a process of waiving privilege.’”

Asked to interpret the court’s ruling, Mahon replied, “The court appears to have based its ruling on Missouri Rule of Civil Procedure 56.01 and case law precedent making the deposition the preferred discovery vehicle for expert witness opinions. In Missouri state court, expert opinions are typically discovered via oral deposition, rather than via written disclosure or report.”

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