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Trial Court Allows Defendant to Interview Plaintiff’s Unused Expert, Appellate Court Reverses on Appeal

Earlier this month, an appellate court in Missouri reversed a lower court that had allowed a defendant in a product liability case to depose the plaintiff’s expert witness after the plaintiff disclosed the identity and substance of the expert’s testimony and then decided not to use the expert. In the case of Malashock v. Jamison, the appellate court held that the lower court erred in determining that the plaintiff had waived the attorney work product privilege by designating the expert and disclosing some basic information about his testimony.

GavelThe Attorney Work Product Privilege Protects Certain Information Prepared in Anticipation of Litigation

In Florida, the attorney work product doctrine acts to protect certain information from pre-trial discovery. Normally, parties are able to ask for all relevant information from the opposing party during pre-trial discovery. However, under the privilege, a party does not need to pass “documents and other tangible things . . . prepared in anticipation of litigation or for trial.” Importantly, the privilege covers both facts as well as opinions about a case or issue.

A Plaintiff’s Expert Is Nearly Used Against Him

The plaintiff in Malashock v. Jamison was injured in an accident involving a utility vehicle. The plaintiff filed a personal injury lawsuit against the dealer from which he obtained the vehicle. To help prove his claim, the plaintiff designated four experts who were to testify at trial. While the experts’ names and areas of specialty were released to the defendant, no specifics about the experts’ testimony were made available.

After the plaintiff decided not to use one of the experts, the defendant sought to interview the expert himself. While the defendant’s motives are unknown, it is likely that he hoped the expert’s testimony was unfavorable to the plaintiff, and that is why the plaintiff chose not to have the expert testify. The trial court allowed the defendant to interview the expert, and the plaintiff appealed that decision.

On appeal, the court reversed the lower court’s decision. The appellate court held that the attorney work product privilege can only be intentionally waived, and here it had not been. The court explained that the plaintiff merely designated the expert and provided his name and a brief summary of his testimony; at no point was the expert’s report made available. The court ultimately determined that since the report was never released, the privilege remained with the plaintiff, and the defendant could not seek to interview the expert for his own purposes.

Have You Been Injured in a Florida Car Accident?

If you or a loved one has recently been injured in any kind of Florida accident, you may be entitled to monetary compensation. The skilled South Florida auto accident lawyers at Cecere Santana have decades of experience representing clients in all kinds of motor vehicle collision and other personal injury cases, including those requiring expert testimony. With a wide network of well-qualified and respected experts, the attorneys at Cecere Santana can help you pursue the compensation you deserve. Call 800-753-5529 today to set up your free consultation.

More Blog Posts:

Attorneys at Cecere Santana Share Driving Tips for Teens to Prevent Fatal Accidents, Cecere Santana Injury Lawyers Blog, published October 19, 2016.

Cecere Santana Supports Food Drive, Cecere Santana Injury Lawyers Blog, published November 4, 2016.

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