State ex rel. Jason H. Malashock, Relator v. The Honorable Michael T. Jamison

SUPREME COURT OF MISSOURI
en banc
STATE ex rel. JASON H. MALASHOCK,) Opinion issued November 1, 2016
)
Relator, )
)
v. ) No. SC95606
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THE HONORABLE MICHAEL T. )
JAMISON, )
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Respondent. )
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
Honorable Michael T. Jamison, Judge
The issue in this writ proceeding is whether, for purposes of pretrial discovery,
the work product doctrine is waived when a party designates an expert witness pursuant
to Rule 56.01 and then rescinds the designation without disclosing the expert’s analysis
or conclusions. This Court holds that designating an expert witness pursuant to Rule
56.01 does not, standing alone, irrevocably waive the protections afforded by the work
product doctrine. This Court issued a preliminary writ of prohibition, which is now made
permanent.
Facts
Jason Malashock (Plaintiff) was injured when his utility terrain vehicle (UTV)
overturned. Plaintiff alleged that the roof of the UTV failed and caused his injuries. As
relevant to this writ petition, Plaintiff sued Chesterfield Valley Sports, Inc. (Defendant).
Plaintiff designated four expert witnesses expected to testify at trial. One of the
designated experts was Herbert Newbold. Plaintiff’s designation of Mr. Newbold as an
expert stated that he would testify regarding the UTV’s “performance” at various speeds,
the “forces” involved in the accident, and the “performance and factors impacting the
performance” of the UTV. The designation did not disclose Mr. Newbold’s analysis or
conclusions regarding any issues in the case.
Approximately two weeks later, Plaintiff sent an e-mail to defense counsel stating
“we have de-endorsed Herb Newbold” as an expert witness. Defendant filed a motion to
amend the scheduling order to permit the deposition of Mr. Newbold. The trial court
sustained the motion on grounds that Plaintiff had waived the protections afforded by the
work product doctrine by designating Mr. Newbold as an expert witness. Plaintiff then
filed the instant petition for a writ of prohibition asserting that Mr. Newbold’s opinions
and conclusions were protected from discovery by the work product doctrine.
Analysis
This Court has the authority to “issue and determine original remedial writs.” Mo.
Const. art. V, sec. 4.1. When a party has been directed to produce privileged information,
a writ of prohibition is an appropriate remedy because an appeal cannot remedy the
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improper disclosure. State ex rel. Crown Power & Equip. Co. v. Ravens, 309 S.W.3d
798, 800 (Mo. banc 2009).
The dispositive issue is whether Plaintiff waived the work product doctrine by
endorsing Mr. Newbold as an expert witness. The work product doctrine is a defense to
pretrial discovery. Callahan v. Cardinal Glennon Hosp., 863 S.W.3d 852, 868 n.5 (Mo.
banc 1993). “A waiver is ordinarily an intentional relinquishment or abandonment of a
known right or privilege.” State v. Driskill, 459 S.W.3d 412, 426 (Mo. banc 2015)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The work product doctrine
precludes discovery of the mental impressions, conclusions, opinions, or legal theories,
both tangible and intangible, created or commissioned by counsel in preparation for
possible litigation. State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367
(Mo. banc 2004) (citing Rule 56.01(b)(3)). An expert’s knowledge, opinions and
conclusions are the work product of the attorney retaining the expert. State ex rel. Tracy
v. Dandurand, 30 S.W.3d 831, 834 (Mo. banc 2000). Therefore, for Plaintiff to waive
the work product doctrine with respect to Mr. Newbold, Plaintiff had to intentionally
relinquish the protections provided by the work product doctrine by disclosing
Mr. Newbold’s opinions or conclusions regarding the underlying case. Mr. Newbold’s
opinions and conclusions were never disclosed, and he is no longer expected to testify at
trial. Consequently, Plaintiff did not waive the work product doctrine by designating
Mr. Newbold as an expert witness without disclosing Mr. Newbold’s opinions or
conclusions.
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The conclusion that Plaintiff’s designation of Mr. Newbold as an expert witness
did not irrevocably waive the work product privilege is confirmed by the language of
Rule 56.01 and this Court’s case law. Once an expert is designated as a trial witness,
Rule 56.01(b)(4)(b) 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
waiving privilege.” State ex rel. American Economy Ins. Co. v. Crawford, 75 S.W.3d
244, 246 (Mo. banc 2002). The waiver is incomplete until there is a “disclosing event.”
Id.This Court’s cases establish that the “disclosing event” is the actual disclosure of
the expert’s opinions and conclusions, not simply the designation of the expert as a trial
witness. For instance, in Tracy, 30 S.W.3d at 836, the disclosing event was the expert’s
production of files during his deposition. Id.. This Court held that a party could not
claim privilege for materials disclosed pursuant to a subpoena during a deposition, even
though the disclosure was inadvertent. Id. at 836. Additionally, Tracy expressly
recognized that, prior to deposition, counsel has the option of rescinding an expert’s
designation as a trial witness. When counsel rescinds the designation, “[t]he attorney can
claim work product protection as to that retained expert, since the expert will not be
called for trial.” Id. at 835-36. In this case, as expressly permitted by Tracy, Plaintiff’s
counsel withdrew the designation of Mr. Newbold as an expert well before trial and
before there was any disclosure of Mr. Newbold’s reports, opinions or conclusions.
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In American Economy, the disclosing event was the expert’s disclosure of his files
in prior litigation. 75 S.W.3d at 246-47. Due to the disclosure of the expert’s files, the
work product privilege was waived “despite plaintiff’s re-designation of the expert as a
non-testifying consultant.” Id. at 247. As in Tracy, American Economy held that the
waiver resulted from the actual disclosure of the expert’s files and due to the act of
designating him as a possible trial witness.
Finally, in Crown Power, a party retained an expert to critique a venue study
conducted by the opposing party. 309 S.W.3d 799. The expert testified at the pretrial
venue hearing. Id. The opposing party argued that the expert’s testimony at the pretrial
venue hearing waived the work product privilege for the expert’s consultation with
counsel on the merits of the lawsuit. Id. This Court held that the discovery rules “do not
provide for the discovery of experts who are merely used as consultants or who may
provide testimony at a non-merits pretrial hearing.” Id. at 802. Crown Power holds that
disclosure of an expert’s opinion on a pretrial matter does not waive a work product
objection to that expert’s non-disclosed consultation with counsel on a merits issue on
which the expert consultant was not designated as an expert witness. Crown Power does
not support Defendant’s argument that Plaintiff’s rescinded designation of Mr. Newbold
as an expert witness constitutes an irrevocable waiver of the work product privilege.
Defendant also argues that Plaintiff’s designation of Mr. Newbold constitutes a
waiver of the work product privilege because the designation did, in fact, disclose
Mr. Newbold’s opinions and conclusions. Defendant asserts that Mr. Newbold’s
opinions and conclusions were disclosed because the designation of Mr. Newbold is
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substantially similar to Plaintiff’s designations of the remaining expert witnesses. Unlike
Mr. Newbold’s designation, Plaintiff’s designations of the remaining experts expressly
disclosed their conclusions that Plaintiff’s injuries were caused by defects in the UTV
roof and that the UTV’s warnings, instructions and manuals were inadequate. Therefore,
even if Plaintiff’s designations of the other experts constituted a waiver of the work
product privilege, it does not follow that the waiver extends to Plaintiff’s designation of
Mr. Newbold.
Conclusion
Plaintiff designated Mr. Newbold as a trial witness and rescinded that designation
without disclosing Mr. Newbold’s opinions or conclusions regarding the case.
Consequently, this Court holds that there was no disclosing event that waived the work
product privilege. The preliminary writ of prohibition is made permanent.
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Richard B. Teitelman, Judge
All concur.
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