The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)
California law upholds this notion of waiver of work-product privilege when a disclosure is made to a third party. The protection offered by the attorney work product privilege can be waived if work product is disclosed to third parties. (Id; See also, Meza v. H Muehlstein & Co.. Inc., (2009) 176 Cal. App. 4th 969, 981.) Dr. Gamble waived the work product privilege by disclosing otherwise protected information to a third party, to wit, Dr. Lee. The fact that the individual Dr. Gamble chose to approach was the defense expert makes no legal difference. An expert’s decision to consult a third party, cannot be shielded since it is by definition related to the work done in connection with the case. That plaintiff expert consulted another doctor is discoverable whether or not it was the defense expert since it relates to the credibility and foundation of the plaintiffs expert’s opinions. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
While communications with an expert retained to assist in the preparation of a defense may initially be protected by the attorney-client privilege, the privilege is waived when the expert is identified or a substantial portion of his otherwise privileged evaluation is disclosed. (Woods v. Superior Court (1994) 25 Cal. App. 4th 178, 187.) The fact that Dr. Gamble sought out advice or information from the defense expert, as well as any statements made by the physician represents a type of disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney’s work product and trial preparation. (Meza v. H. Muehlstein & Co., Inc., supra, 176 Cal. App. 4th at 981.)
The burden is on the party claiming waiver (i.e. plaintiff) to prove the existence of an intentional and knowing waiver. (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1188.) Under the circumstances in this instant matter, by intentionally seeking out the advice of the defense expert, Dr. Gamble (and plaintiff’s counsel) has intentionally and knowingly waived any rights to claim a work-product privilege.
Here, plaintiffs counsel and expert should have been aware of the fact that by approaching other health care professionals to discuss the facts of the case, they were intentionally jeopardizing any work-product privilege. Opposing counsel cannot justifiably claim ignorance or inadvertence there. The lack of discretion was blatant. Thus, plaintiff is no longer entitled to claim that privilege. Plaintiffs decision to proceed with the disclosure of his expert has resulted in a waiver of any work product complaints that might have existed. The voluntary disclosure of plaintiff’s expert subjects all actions taken by the expert to discovery, and that no work product privilege can lie under those circumstances.
For all the foregoing reasons, the Defense is entitled to make reference to both the fact that Dr. Gamble approached Dr. Lee and the fact that they work together. Plaintiff is not entitled to use the conversation to threaten Defendants that they must find a new expert and then turn around and claim that the conversation should not be disclosed.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.