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.)
Plaintiff Has Effectively Waived A Privilege Which Can No Longer Be Asserted
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Any attempt by plaintiffs counsel to argue that his expert’s decision to approach the defense expert for an opinion or consultation on the case as being privileged or protected information is futile. The party asserting a privilege (plaintiffs counsel and expert) must establish whatever preliminary facts are necessary to show that the proffered evidence is privileged. (Evidence Code § 405) Here, opposing counsel will undoubtedly attempt to argue that the very fact that its ER expert sought out the opinion of the defense expert is a matter which falls under the protection of the attorney work product privilege and should remain so. This notion is contrary to California law however. Evidence Code § 912 subd. (a) states in pertinent part regarding waiver of privilege:
(a) Except as otherwise provided in this section, the right of any person to claim a privilege … is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure. (See Part 4 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.