DENVER (Legal Newsline) - Defendants aren't entitled to certain information from plaintiff lawyers just because they shared it with their experts.
The Colorado Supreme Court said that on June 10 in a case involving the firm Lewis Roca Rothgerber Christie and watched by the state's trial lawyers association. An unanimous court ruled against Terumo Sterilization Services, which has been hit with a toxic tort lawsuit in Jefferson County.
The plaintiffs retained an expert to show where and when they were exposed to ethylene oxide around the defendant's plant in Lakewood. To do so, lawyers sent the expert a spreadsheet of where each plaintiff lived and worked.
That was information Terumo wanted, so it demanded both the spreadsheet and all communications between lawyers at the firm that contained the information used to create it.
Judge Lindsay VanGilder allowed it, leading Lewis Roca to appeal. The Supreme Court was tasked with deciding if the attorney-client privilege doesn't apply to protect a client's confidential communications of facts to their lawyers and whether the provision of the spreadsheet to the expert waived the attorney-client privilege.
The high court found for Lewis Roca, saying VanGilder erred.
"Clients routinely provide factual information to their counsel," Justice Richard Gabriel wrote. "This does not mean that opposing counsel is entitled to obtain the clients' communications containing such facts.
"Rather, the proper method of obtaining such facts is through discovery directed at the clients."
And giving those facts to the expert did not waive the attorney-client privilege, the decision says.
"(I)f such communications can be deemed not privileged merely because counsel compiled, distilled and transmitted non-privileged facts to third parties, such as an expert, then no client would feel confident communicating with their counsel because counsel could not assure the client that those conversations would remain privileged," Gabriel added.
"As noted above, this is simply not the law."
The lawsuits sprung up in 2020 and 2021. Ethylene oxide is a carcinogen emitted during a sterilization process for medical products.
These cases have targeted facilities that use EO. In 2022, one was the largest verdict in Illinois that year, with a Cook County jury awarding $363 million to a woman who was diagnosed with breast cancer.