Court Holds Plaintiff Does Not Need to Release Unused Expert Witness’ Report

Earlier this month, an appellate court in Missouri issued a written opinion in a personal injury case brought by a man who was injured when he crashed and rolled his utility terrain vehicle (UTV), and the roof collapsed. In the case, Malashock v. Jamison, the court’s opinion analyzed the application of the “attorney work product” doctrine, which requires that an attorney’s work on a client’s case remain confidential unless the privilege is waived. Specifically, the court held that designating an expert witness and then choosing not to use the expert’s testimony does not waive the attorney work product privilege.

CourtroomThe Facts of the Case

Malashock crashed the UTV that he purchased from the defendant. During the crash, the UTV rolled, and the roof collapsed, injuring Malashock. Malashock then filed a personal injury lawsuit against the defendant, seeking compensation for his injuries.

In preparation for the case, Malashock designated four expert witnesses to help him prove his case against the defendant. As a part of the designation process, Malashock provided a brief description of the areas each expert would discuss at trial. However, two weeks later, he reconsidered and decided not to use one of the experts. At no time were the specifics of the unused expert’s testimony made known to the defendant.

In response, the defendant sought the unused expert’s report through a discovery request. Malashock declined to share the report, arguing that it was covered under the attorney work product privilege. However, the court disagreed and ordered the production of the expert’s report. Malashock then filed an immediate appeal.

The Appellate Court’s Decision

On appeal, the court held that by designating an expert and then retracting that designation, a plaintiff does not waive the attorney work product privilege. The court began by explaining the work product privilege, including that it can only be waived intentionally by the plaintiff. Here, the court explained, the plaintiff merely disclosed the expert’s name and the area that his testimony would cover; nothing specific about the testimony was released. Designating the expert witness only began the process of waiving the privilege. The court explained that the “triggering event” when the privilege is actually waived is when the plaintiff releases the findings of the expert. As a result of the court’s decision, Malashock will not be required to release the findings of his unused expert.

Have You Been Injured in a Maryland or Washington, D.C. Accident?

If you or a loved one has recently been injured in any kind of Maryland or Washington, D.C. accident, you may be entitled to monetary compensation. It is very important that you discuss your case with a dedicated personal injury attorney as soon as possible to designate potential issues that may require expert testimony. The skilled personal injury lawyers at Lebowitz & Mzhen, LLC have decades of experience handling all kinds of injury cases, including those requiring expert witnesses. Call 410-654-3600 today to set up your free consultation.

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Trampoline Park’s Contract Mandating Arbitration Found to Be Unenforceable, Washington DC Injury Lawyer Blog, November 2, 2016

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