Plaintiff in Personal Injury Lawsuit Successfully Uses Work Product Doctrine to Suppress Presumably Unfavorable Expert Report

The Supreme Court of Missouri recently released an opinion reversing a trial court’s preliminary ruling to grant a personal injury defendant’s request to further question an expert witness. The expert had been formerly proposed by the plaintiff as an expert witness, but the plaintiff later “de-endorsed” the expert witness weeks into the proceedings without disclosing a report.

Golf CartThe defendant requested a copy of the report and to depose the expert, while the plaintiff claimed that the expert report was protected by the “work product doctrine,” which protects materials prepared by or for an attorney from pretrial discovery by the opposing side. Although the opinion does not explicitly reference the expected opinion of the expert or what his conclusions may be, the plaintiff’s attempts to remove the expert from the case suggested that his conclusions were not favorable to the plaintiff.

With the most recent ruling, the defendant will be prohibited from deposing the witness or accessing any report he may have prepared, and the case will proceed toward trial.

The Plaintiff Is Injured in a UTV Rollover Accident and Files a Lawsuit

The plaintiff in the case of Malashock v. Jamison is a man who was injured when a utility terrain vehicle (UTV) he was driving overturned, and the roof failed, causing his injuries. The plaintiff filed a product liability and personal injury claim against the defendant, which sold him and serviced the vehicle, alleging that the roof of the vehicle was negligently designed or installed.

After filing the complaint, the plaintiff designated a proposed expert who was expected to testify as to his conclusions on the design and functionality of the vehicle. Two weeks after designating the expert, the plaintiff contacted defense counsel and stated that the designated expert was being un-endorsed and would not be testifying at trial.

Likely assuming the expert did not reach the conclusions that the plaintiff expected or desired, the defendant requested the expert’s report and made a motion to the court to perform a deposition. The plaintiff objected to the defendant’s request, claiming that the expert’s conclusions and testimony were protected from disclosure by the work product doctrine. The trial court rejected the plaintiff’s objection and granted the defendant’s motion, leading the plaintiff to appeal to the Missouri Supreme Court.

The High Court Rejects the Trial Court’s Reasoning

On appeal, the Missouri Supreme Court took issue with the defendant’s arguments and the conclusions reached by the trial court. The trial court had decided that by designating and then disclosing the expert as a witness, the plaintiff had waived the work product doctrine, and the defendant was entitled to access his report and opinion. The state supreme court clearly stated that the rule protects the mental impressions, conclusions, and opinions of any attorney working on a case, as well as experts they have retained. The work product doctrine can be waived by a party, but only by intentionally relinquishing the protections by disclosing the information. The court found that the plaintiff consistently tried to protect the expert’s work and never waived the privilege. As a result of the ruling, the defendant will not be able to obtain an expert report or call the plaintiff’s former witness at trial.

Attorneys Want to Know Their Experts Before Designating Them

The ultimate result of this interlocutory appeal was favorable to the plaintiff, since the defendant will not be able to use the plaintiff’s own work against him. However, the ruling very easily could have gone the other way, and the defendant now has knowledge that at least one expert out there would have reached conclusions that the plaintiff’s attorney deemed harmful to their case.

Before commissioning a full expert report or designating an expert witness to a court, an attorney should have a reasonably sound idea of what the expert’s opinion will be. Victims and their attorneys should not find themselves paying thousands of dollars in expert fees, only to have the expert be used against them.

South Florida Product Liability and Negligence Attorneys Can Help

If you or a loved one has been injured or killed in a South Florida accident or by a dangerous or defective product, you may be entitled to a judgment as compensation for your loss. The South Florida negligence and product liability attorneys at the practice of Friedman, Rodman & Frank understand the importance that expert testimony can play in a case, and we have retained experts in multiple fields to support our clients’ claims. We can help you know what to expect in your negligence lawsuit. If you’ve been hurt, contact us and set up a free consultation to discuss the possibility of making a claim for relief. We have attorneys standing by and representing accident victims in the Miami area and throughout South Florida. Contact us at 877-448-8585 or use our web-based form to schedule a meeting today.

More Blog Posts:

State Supreme Court Refuses to Enforce Arbitration Clause Against Young Injury Victim, South Florida Personal Injury Lawyers Blog, published November 3, 2016.

Appellate Court Rejects $885,000 Verdict Against Educational Institution in Auto-Pedestrian Accident Case, South Florida Personal Injury Lawyers Blog, published October 19, 2016.

Contact Information