State ex rel. Malashock v. Hon. Michael Jamison – Rescinding Expert Witness Designation in Crash Case

Expert witnesses are a key component in many complex personal injury cases. They can make or break a claim with rational, compelling analysis and explanations. Securing and presenting expert witness testimony is often a complex process. In fact, there are some situations in which expert witnesses you may have initially wanted to testify don’t ultimately reach conclusions that are favorable to your case. In these instances, you can rescind them. However, one must be careful because, in some cases, the opposing side may seek to depose or utilize that same expert accident

This was the case in State ex rel. Malashock v. The Honorable Michael T. Jamison, a matter before the Missouri Supreme Court involving a personal injury plaintiff who alleged a defectively designed utility terrain vehicle caused him serious injuries when the vehicle overturned, and the roof failed.

Before the trial started, the plaintiff designated four expert witnesses. One of those became the subject of this appeal. This expert was slated to testify regarding the performance of the utility terrain vehicle at various speeds, the forces involved in the crash, and the factors that would affect the performance of the vehicle. The “expert witness” designation never offered up the witness’ analysis or his conclusions on any issues in the case.

About two weeks later, the plaintiff sent an email to the defense attorneys, notifying them that this expert witness had been “de-endorsed.” The defendant then filed a motion to amend the scheduling order to permit this particular expert witness to be deposed during discovery. The trial court allowed this request because, as the judge reasoned, the plaintiff had waived the protections typically afforded by the “work product” doctrine by designating this individual as an expert witness.

The work product doctrine, for those who may not be familiar, involves material that is prepared in anticipation of litigation. It can involve tangible material or its intangible equivalent, and it’s typically protected from discovery by the other side.

The plaintiff filed a petition for a writ of prohibition, asserting this witness’ opinions and conclusions were protected from the discovery process by the work product doctrine.

The Missouri Supreme Court granted review. Although the state high court’s opinion doesn’t have any direct bearing on North Carolina, it is well established that state high courts often look at the legal reasoning of other courts when facing similar circumstances.

In this case, the court noted firstly that the opinions, knowledge, and conclusions of an expert witness are the work product of the attorney who retains the expert. Therefore, in order for the plaintiff to waive the work product doctrine, he would have had to intentionally relinquish those protections by disclosing his opinion or conclusions regarding the case.

However, those conclusions and opinions weren’t ever disclosed here. In fact, he is no longer expected to testify at the trial.

The fact that the plaintiff designated this person as an expert witness did not irrevocably waive the work product doctrine based on the state’s case law. Instead, the court held that the “disclosing event” for an expert witness occurs when that individual’s opinions and conclusions are actually disclosed.

It’s important that counsel rescind an expert witness prior to any depositions or disclosures of other reports, opinions, or conclusions.

Contact the Carolina car accident lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

State ex rel. Malashock v. The Honorable Michael T. Jamison, Nov. 1, 2016, Missouri Supreme Court

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