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.
reverses a trial court finding which said the defendant had a right to access
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
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.
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
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
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
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