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.)
The statutory language in Evidence Code § 912 indicates that one must look to the words and conduct of the holder of the privilege to determine whether a waiver has occurred. The very conduct of the plaintiffs expert as well as his disclosure about the facts of this case belies a waiver. This was no accidental or inadvertent disclosure of privileged information. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Under Code of Civil Procedure §2034.201 et. seq., the attorney’s work product privilege does not apply to an expert’s pretrial statements once that expert is designated as a witness at trial. The statutory provisions entitles a party to request not only information about each expert retained and designated by a party, but is also includes a provision entitling a party to demand the production of all discoverable reports and writings upon which the expert bases his/her opinion. Moreover, a party is entitled to depose this same expert witness and inquire about an expert’s communications conducted for the purpose of formulating and expressing an opinion in anticipation of litigation. Through expert disclosure of plaintiff’s expert that work product privilege has been waived. (See e.g, United States v. Nobles (1975) 422 U.S. 225, 239-240, electing to present the expert as a witness destroys the work product privilege.)
California courts have recognized that the waiver doctrine is applicable to the work product rule as well as the attorney-client privilege. The work product protection may be waived by the attorney’s disclosure or consent to disclosure to a person, other than the client, who has no interest in maintaining the confidentiality of a significant part of the work product. (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 891.)
Applying these waiver principles in the context of communications among parties with common interests, it cannot be stated that plaintiffs expert during his exchange with Dr. Lee, could have any reasonable expectation that information disclosed will remain confidential. If a disclosing party does not have a reasonable expectation that a third party will preserve the confidentiality of the information, then any applicable privileges are waived. (OXY Resources California LLC v. Superior Court, supra, 115 Cal.App.4th at 891.) (See Part 5 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.