STATE ex rel. JASON H. MALASHOCK, Relator,
THE HONORABLE MICHAEL T. JAMISON, Respondent.
FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY Honorable Michael
T. Jamison, Judge
Richard B. Teitelman, Judge
issue in this writ proceeding is whether, for purposes of
pretrial discovery, the work product doctrine is waived when
a party designates an expert witness pursuant to Rule 56.01
and then rescinds the designation without disclosing the
expert's analysis or conclusions. This Court holds that
designating an expert witness pursuant to Rule 56.01 does
not, standing alone, irrevocably waive the protections
afforded by the work product doctrine. This Court issued a
preliminary writ of prohibition, which is now made permanent.
Malashock (Plaintiff) was injured when his utility terrain
vehicle (UTV) overturned. Plaintiff alleged that the roof of
the UTV failed and caused his injuries. As relevant to this
writ petition, Plaintiff sued Chesterfield Valley Sports,
designated four expert witnesses expected to testify at
trial. One of the designated experts was Herbert Newbold.
Plaintiff's designation of Mr. Newbold as an expert
stated that he would testify regarding the UTV's
"performance" at various speeds, the
"forces" involved in the accident, and the
"performance and factors impacting the performance"
of the UTV. The designation did not disclose Mr.
Newbold's analysis or conclusions regarding any issues in
two weeks later, Plaintiff sent an e-mail to defense counsel
stating "we have de-endorsed Herb Newbold" as an
expert witness. Defendant filed a motion to amend the
scheduling order to permit the deposition of Mr. Newbold. The
trial court sustained the motion on grounds that Plaintiff
had waived the protections afforded by the work product
doctrine by designating Mr. Newbold as an expert witness.
Plaintiff then filed the instant petition for a writ of
prohibition asserting that Mr. Newbold's opinions and
conclusions were protected from discovery by the work product
Court has the authority to "issue and determine original
remedial writs." Mo. Const. art. V, sec. 4.1. When a
party has been directed to produce privileged information, a
writ of prohibition is an appropriate remedy because an
appeal cannot remedy the improper disclosure. State ex
rel. Crown Power & Equip. Co. v. Ravens, 309 S.W.3d
798, 800 (Mo. banc 2009).
dispositive issue is whether Plaintiff waived the work
product doctrine by endorsing Mr. Newbold as an expert
witness. The work product doctrine is a defense to pretrial
discovery. Callahan v. Cardinal Glennon Hosp., 863
S.W.3d 852, 868 n.5 (Mo. banc 1993). "A waiver is
ordinarily an intentional relinquishment or abandonment of a
known right or privilege." State v. Driskill,
459 S.W.3d 412, 426 (Mo. banc 2015) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). The work product
doctrine precludes discovery of the mental impressions,
conclusions, opinions, or legal theories, both tangible and
intangible, created or commissioned by counsel in preparation
for possible litigation. State ex rel. Ford Motor Co. v.
Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004) (citing
Rule 56.01(b)(3)). An expert's knowledge, opinions and
conclusions are the work product of the attorney retaining
the expert. State ex rel. Tracy v. Dandurand, 30
S.W.3d 831, 834 (Mo. banc 2000). Therefore, for Plaintiff to
waive the work product doctrine with respect to Mr. Newbold,
Plaintiff had to intentionally relinquish the protections
provided by the work product doctrine by disclosing Mr.
Newbold's opinions or conclusions regarding the
underlying case. Mr. Newbold's opinions and conclusions
were never disclosed, and he is no longer expected to testify
at trial. Consequently, Plaintiff did not waive the work
product doctrine by designating Mr. Newbold as an expert
witness without disclosing Mr. Newbold's opinions or
conclusion that Plaintiff's designation of Mr. Newbold as
an expert witness did not irrevocably waive the work product
privilege is confirmed by the language of Rule 56.01 and this
Court's case law. Once an expert is designated as a trial
witness, Rule 56.01(b)(4)(b) authorizes discovery by
deposition of "facts and opinions to which the expert is
expected to testify." The fact that a designated expert
witness is subject to discovery does not mean that the act of
designation irrevocably waives the work product privilege.
Instead, the "designation of an expert as a trial
witness begins a process of waiving privilege."
State ex rel. American Economy Ins. Co. v. Crawford,
75 S.W.3d 244, 246 (Mo. banc 2002). The waiver is incomplete
until there is a "disclosing event." Id.
Court's cases establish that the "disclosing
event" is the actual disclosure of the expert's
opinions and conclusions, not simply the designation of the
expert as a trial witness. For instance, in Tracy,
30 S.W.3d at 836, the disclosing event was the expert's
production of files during his deposition. Id.. This
Court held that a party could not claim privilege for
materials disclosed pursuant to a subpoena during a
deposition, even though the disclosure was inadvertent.
Id. at 836. Additionally, Tracy expressly
recognized that, prior to deposition, counsel has the option
of rescinding an expert's designation as a trial witness.
When counsel rescinds the designation, "[t]he attorney
can claim work product protection as to that retained expert,
since the expert will not be called for trial."
Id. at 835-36. In this case, as expressly permitted
by Tracy, Plaintiff's counsel withdrew the
designation of Mr. Newbold as an expert well before trial and
before there was any disclosure of Mr. Newbold's reports,
opinions or conclusions.
American Economy, the disclosing event was the
expert's disclosure of his files in prior litigation. 75
S.W.3d at 246-47. Due to the disclosure of the expert's
files, the work product privilege was waived "despite
plaintiff's re-designation of the expert as a
non-testifying consultant." Id. at 247. As in
Tracy, American Economy held that the
waiver resulted from the actual disclosure of the
expert's files and due to the act of designating him as a
possible trial witness.
in Crown Power, a party retained an expert to
critique a venue study conducted by the opposing party. 309
S.W.3d 799. The expert testified at the pretrial venue
hearing. Id. The opposing party argued that the
expert's testimony at the pretrial venue hearing waived
the work product privilege for the expert's consultation
with counsel on the merits of the lawsuit. Id. This
Court held that the discovery rules "do not provide for
the discovery of experts who are merely used as consultants
or who may provide testimony at a non-merits pretrial
hearing." Id. at 802. Crown Power
holds that disclosure of an expert's opinion on a
pretrial matter does not waive a work product objection to
that expert's non-disclosed consultation with counsel on
a merits issue on which the expert consultant was not
designated as an ...