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.)
Under well established discovery rules, when it appears reasonably certain that the consultant-expert will give his or her professional opinion as a witness on a material matter in dispute, the attorney’s work product privilege terminates and the expert’s knowledge and opinions are subject to discovery and disclosure. (County of Los Angeles v. Superior Court (1990) 222 Cal. App. 3d 647, 654-655) In other words:
Once it appears reasonably certain that the consultant-expert is to become a witness in the action, the attorney’s work-product privilege terminates and the expert’s knowledge and opinions are subject to discovery and disclosure. (Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 202, citing, San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Thus, in this case, since plaintiff’s expert has been designated, the work product privilege can no longer be claimed. That privilege has effectively been terminated. This rule of termination is one of fairness.
The attorney who employed the expert cannot be permitted to still assert the attorney’s work-product privilege after a decision has been made that the expert’s knowledge and opinions are to be thrust into the evidence arena. (Brokopp v. Ford Motor Co., supra, 71 Cal. App. 3d at 847-848, quoting Jefferson, Cal. Evidence Benchbook (1972) § 41.1, pp. 704-705 (citations omitted).)
Plaintiffs expert, Dr. Gamble, has made a grave error in judgment, one that is both discoverable and admissible. Since by virtue of the fact that Dr. Gamble, initiated contact with defendant’s expert, Dr. Lee, in order to converse about the facts of this case and obtain defense expert’s opinion well in advance of trial, and more than 30 days before the deadline for expert designation, any claim of work product privilege is inapplicable here. (See Part 3 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.