Masters v. Kraft Foods Global, Inc.Masters v. Kraft Foods Global, Inc.
Decided: November 16, 2012
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Brian Reddy and Donald J. Kral, for appellee/cross-appellant.
John J. Haggerty, for appellant/cross-appellee.
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OSOWIK, J.
{¶ 1} This is an appeal from a September 27, 2011 order of the Lucas County Court of Common Pleas, which granted a motion to compel appellant/cross-appellee to produce documents containing facts known to a testifying expert, in accordance with
{¶ 3} On January 13, 2011, Masters filed a motion to compel discovery responses from SPX seeking production of documents that contained the commentary of this key expert witness. On September 27, 2011, after performing an in camera inspection, the trial court issued a journal entry granting the motion to compel. The production of the expert’s report and documents was ordered. This appeal and cross-appeal ensued.
{¶ 4} For reasons set forth below, this court affirms the judgment of the trial court.
{¶ 5} SPX sets forth the following sole assignment of error:
THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE/CROSS-APPELLANT GARY D. MASTER’ MOTION TO COMPEL DOCUMENTS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE AND AUTHORED BY APPELLANT/CROSS-APPELLEE SPX CORPORATION’S EMPLOYEE AND TESTIFYING EXPERT ED LONG.
{¶ 7} Masters is employed by Kraft Foods, Inc. and was seriously injured in the course of employment when his arm was crushed by a bacon press that was designed and manufactured by SPX.
{¶ 8} On November 29, 2007, Masters filed a complaint alleging personal injuries based upon this incident. SPX was named as one of the defendants. On June 9, 2010, during the deposition of a witness, the witness testified that he had prepared and sent a “commentary” to SPX’s management team regarding modifications made to the bacon press. This witness had not been disclosed to be an expert witness. Following the deposition, SPX designated the witness as an expert witness. In addition, SPX did not furnish the referenced documents prior to Masters’ deposition of the witness. Thus, Masters could not properly depose the witness regarding his expert opinions.
{¶ 9} SPX asserted that their general counsel requested the witness’s commentary prior to the start of litigation. The witness sent multiple memorandums to SPX’s management and general counsel which SPX alleged rendered the documents protected by attorney-client privilege. On January 13, 2011, Masters filed a motion to compel discovery responses seeking production of the expert witness’s documents.
{¶ 10} On August 16, 2011, the trial court held an in camera inspection of the disputed documents. Based upon the inspection, the trial court concluded that SPX had waived its attorney-client privilege when, as held by the trial court, it “voluntarily, affirmatively, and offensively” named the expert witness. In other words, SPX’s own
{¶ 11} SPX’s sole assignment of error claims that the trial court erred in granting the motion to compel documents because they were protected by attorney-client privilege. Appellant argues that the trial court incorrectly applied outdated federal jurisprudence. We disagree.
{¶ 12} SPX claims that the trial court relied on principles of outdated federal jurisprudence that were never adopted by the Ohio courts. This explicitly contradicts the trial court’s written entry in favor of Masters which plainly states that the ruling was not done in reliance upon an interpretation of federal rules. On the contrary, the trial court relied on the language of
(b) As an alternative or in addition to obtaining discovery under division (B)(5)(a) of this rule, a party by means of interrogatories may require any other party (i) to identify each person whom the other party expects to call as an expert witness at trial, and (ii) to state the subject matter on which the expert is expected to testify. Thereafter, any party may discover from the expert or the other party facts known or opinions held by the expert which are relevant to the stated subject matter. Discovery of the expert’s opinions and the grounds therefore is restricted to those previously given to the other party or those to be given on direct examination at trial.
{¶ 14} When SPX identified the disputed witness to be a person it “expects to call as an expert witness at trial,” Masters was thereby entitled to discover facts known by the expert and was not restricted to those offered on direct examination. Masters is entitled to discovery of facts and opinions previously given to appellant by the expert witness. The expert witness disclosed in his testimony that he had provided his opinions to SPX prior to suit being filed. The opinions discussed the pre-injury modifications of the bacon press and are highly relevant to the case. The trial court reviewed those materials in camera and ruled that the materials fall under the scope of discovery pursuant to
Specifically, the Court finds that, contrary to [appellant’s] reading of Civil Rule 26(B)(5)(b), the in camera documents would otherwise fall within the express scope of that Rule in that they pertain to “facts known or opinions held by the expert which are relevant to the stated subject matter” and, in particular, to opinions “previously given to the other party.”
{¶ 16} SPX is claiming that the expert’s opinion is protected under the attorney-client privilege doctrine. However, SPX waived any attorney-client protection encompassing the disputed materials when it, as held in pertinent part by the trial court in response to the discovery dispute, “voluntarily, affirmatively, and offensively” named the trial witness as an expert witness. Wherefore, we find SPX’s assignment of error not well-taken.
{¶ 17} Lastly, Masters filed a cross-appeal from the trial court’s ruling that the expert witness’s opinions were originally protected from discovery under the doctrine of attorney-client privilege. This issue is subsumed by our above decision on SPX’s assignment of error. Therefore, this cross-appeal is moot.
{¶ 18} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. SPX is ordered to pay costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________ JUDGE
Mark L. Pietrykowski, J. _______________________________ JUDGE
Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.