*1 AND rel. CROWN POWER STATE ex L.L.C.,
EQUIPMENT COMPANY,
Relator, Gary RAVENS, E. Honorable
Respondent.
No. SC 89671. Missouri, Court of
Supreme
En Banc.
Nov.
way jury consultant Lisa Dahl to testify as an at a hearing on the venue motion. Crown Power informally Railway advised Norfolk it had re- Beisecker, Ph.D., tained Thomas ex- for pert purpose analyzing and cri- Larry Tyrl, Tyrl Bogdan, J. & Overland tiquing study. Dahl’s venue Unknown to Park, KS, for relator. Railway, Norfolk to Dr. prior Beisecker’s McLeod, Heinrichs, Richard E. Jeff deposition, Crown had Power retained Dr. Heinrichs, MO, City, McLeod & Kansas Beisecker in the same case as a non-testi- respondent. fying consultant to conduct focus groups strategies, and assist in including jury FISCHER, Judge. ZEL M. selection. proceeding The issue this writ During deposition, Dr. Beisecker’s video an expert whether witness who was infor- Railway question Norfolk began him produced mally for his about work he had done Crown Power pretrial going testify he was hear- study. unrelated to the venue Crown venue ing on but was not objected questions Power to the on the testify as an at trial may that Dr. Beisecker’s work ground unrelat- to disclose material compelled protected ed venue was from disclosure issue. him unrelated to the venue product and instructed produce Dr. Beisecker not to Background documents unrelated venue matters. Equipment Company Power & complied, parties Dr. Beisecker prohibition preventing seeks a writ of agreed Railway that Norfolk would formal- compelling trial court from Judge raise the ly issue with Ravens. testimony and of his en- production ness’ deposition, Railway After the Norfolk tire file. a subpoena caused duces tecum to be Railway Company Norfolk Sоuthern al- on Dr. served Beisecker Kansas. leges negligent Crown Power in response, filed a Crown Power motion to causing or cause contributing to a March quash subpoena. parties agreed 24, 2006, grade crossing railroad accident quash to table Crown motion to Power’s Keytesville, Missouri. The case subpoena pending Kansas until County trial in ceeded the Chariton Judge rulings. Judge Ravens made his Railway court. circuit Norfolk moved for presented Ravens was with Norfolk Rail- a mistrial before its voir dire completing way’s production motion to compel Dr. that, on grounds on the based answers Beisecker’s file unrelated the venue is- given by potential jurors, some the rail- and his on topics sue continued could not receive a fair trial. Judge road unrelated to venue and Crown Power’s Gary granted Railway’s Ravens protective competing motion for order motion. privilege. on based work Prior to Railway Judge change ruling competing then moved Ravens these venue, motions, claiming County objec- that Chariton Crown Power withdrew its Railway’s prejudiced against request inhabitants were Nor- tion to Norfolk for a agreed Railway change change folk and that Power had of venue and County influence over them. Norfolk Rail- venue from to Sullivan undue Chariton on mootness nary prohibition writ Railway requested had County. Norfolk grounds. changed Sullivan or Platte venue evidence was offered ei-
County. No Dandurand, ex In State rel. sustained the Judge Ravens party; ther Court, 56.01(b)(3), interpreting *3 change of venue and orderеd motion for “The of facts known and stated: County. to Sullivan case sent the are, the held an until trial, designated is for the work hearing the on ven- At the conclusion of expert.” retaining attorney the product ue, Railway wanted to Norfolk indicated (Mo. 2000). banc 0 S.W.3d 3 despite compel motion to the pursue attorney work protects granted Ravens the change. Judge venue showing the by requiring a compel the motion to seeking discovery “unable without party is file and over- Dr. Beisecker’s duction hardship obtain the substantial undue to protective for Power’s motion ruled Crown materials other equivalent the order. means.” for a petition Power filed its writ argues that this Railway Court’s in This Court. Court prohibition attorney an to Tracy requires decision preliminary prohibition, writ of entered a an given all to disclose documents it now makes absolute. which hearing at if pretrial testifies even who designated testify is to at the not Review Standard of Tracy is trial. not so broad. authority This Court has the to sued her insur- plaintiff original remedial “issue and determine company allegedly ance for bad faith Const, V, 4.1. Filing Mo. art. sec. writs.” liability her in excess of her exposing to is prohibition for a writ of petition coverage defending in a policy when her procedure party when a appropriate at 832. bodily injury Tracy claim. While produce directed to material is been the insurer preparing inadver- damage This is privileged. tently sent documents to its confidential against whom is witness, designated was to tes- irreparable, privi because if the sought is tify at trial. at 833. Pursuant Id. produced, leged damage material tecum, expert produced duces notice repaired appeal. State ex cannot be he his file for when was de- plaintiff Ctr., Retirement Inc. v. Hamil rel. Boone questioned but he about the posed, was (Mo. 1997). ton, 740, 741 banc 946 S.W.2d deposition. plaintiffs file at this Id. The counsel took the insurer’s Analysis attorney and him about questioned documents; Power claims that Norfolk re- confidential attorney-client answer Railway’s compel citing priv- motion to is moot be fused to At ilege. subsequent deposi- Id. video cause Crown Power conceded County expert, plaintiff cross- change of venue Sullivan tion insurer’s him Dr. as a witness examined about the documents. Id. withdrew Beisecker Thus, Trаcy The matter is not moot any purpose. be materials, compel outstanding provided oppos- the order to he in turn cause with at ing depo- counsel with the materials his and because venue decision theoretical sition, testify he at subject appeal. designated be the of an and was ly still quash prelimi- declines trial. Id. This Court concluded, Tracy produce given “The
This Court materials them re rung cannot be modified. unrung.” quested, has been is not bell But, case, has not Id. bell been 56.01(b)(4)(a) states: “A party rung. The facts of this case are distin- through interrogatories require any other major in three re- guishable from identify person each whom the First, Dr. never provid- Beisecker spects. to call party expects as an ed the non-venue-related materials by providing such Second, Railway. Dr. Beisecker name, address, occupation, place of em- never trial. ployment qualifications give Third, changed county venue was added). ...” *4 opinion (emphasis By its by suggested parties as suitable both 56.01(b)(4)(a) plain language, presup- testimony by without evidence offered poses that a testifying expert is one who party. either testify will not a consultant who not designated Dr. Beisecker was may provide testimony pretrial some at a therefore, trial; a testifying as witness for hearing that does deal with the merits compelled he cannot be to disclose all ma case, of the case. In this Dr. Beisecker provided to him Crown by terials Power. informally opposing disclosed to coun- In Court the bright-linе this stated sel as a witness to be called at venue testify given rule that materials “[a]ll In hearing. Tracy, this clear Court made must, ing expert requested, dis that expert mistakenly given when an is case, Dr. closed.” Id. this Beisecker documents, privileged attorney may “testifying expert” was not a as defined withdraw the designation as tes- 56.01(b)(4) Crown because Power tifying expert prior to the deposition; designated never him an testi then, can claim prod- work “[t]he at trial. fy Dr. Beisecker’s limited role protection uct that expert, as to was to offer hearing at the on since the will not be called Railway’s change motion for Here, trial.” Tracy at 835-36. venue, According which never occurred. consultant, Power never intended its ly, bright-line Tracy rule from Beisecker, Dr. be сalled at trial and has experts designated testify at trial pursu that Dr. Beisecker will conceded never 56.01(b)(4) produce ant to Rule must Accordingly, called at trial. Power given applicable material them is not protection claim of Dr. Therefore, the facts of this case.1 Beiseeker’s non-venue related materials.2 holding Tracy of State ex rel. v. Dandu (Mo. (5) rand, 2000), provide S.W.3d banc Rules experts testify at trial must rules of for both retained and dissenting alleges opinion lawyers judges 1. The what that Court know "abandon[ing] settled law and the Missouri means. theory behind it in favor of unworkable Yet, dissenting opinion rule.” the entire cites suggestion pages 5-6 that The dissent’s decision, only one Missouri case State ex rel. "trying help Court is Crown out its Dandurand, (Mo. Tracy v. S.W.3d banc merеly predicament” is incorrect. The Court 2000), thoroughly which is discussed. The case, likely will decides the facts which dissenting logic citing opinion supports reoccur, by application rules as never of its that, course, eight federal cases have differ- opinion in written. The well-reasoned ent for the witness rules. As claim 56.01(b)(3), Prepara- dealing with Rule "Trial "unworkability,” it is not unworkable for the Materials,” fully tion remains intact. word ‘Trial” in the to mean rules "trial” evidence. The claimed admissible non-retained provide at trial. rules do not need further of information These mere- experts who are for the given prepared to Dr. Beisecker is to be may provide or who ly him, testified, consultants but he never cross-examine testimony pretrial hearing. at a non-merits testify at trial.4 going and he is not proliferation use of With Conclusion purposes, for a myriad of changes existing
be wise to consider prohibition writ of is made absolute. rules, changes but such should be made through process the appropriate TEITELMAN, RUSSELL, STITH, —not important attor- court decision. It is JJ., concur. neys parties rely to be able WOLFF, J., separate opinion concurs to follow as written. the rules Court filed. argues Railway TEITELMAN, concurs § requires language of 490.065.33 disclo WOLFF, J. facts or when the sure of data *5 designated testify any hearing. to at “The C.J., PRICE, separate in dissents upon data particular facts or in a case opinion filed. an an infer expert which bases or BRECKENRIDGE, J., in concurs may perceived ence be those or made PRICE, opinion of C.J. him healing at or before the known ” added). (emphasis .... Section 490.065.3 WOLFF, J., A. concurring. MICHAEL However, § with 490.065 deals admissibil present The case—and three decades of actions; in ity civil in observing participating wit- whereas, discovery the issue in this case is question: ness discovery prompts this — privileged information legal profession Has the lost its mind? held an who is not legal profession, the courts and the at The testify trial. confirms that differ paying public suffering conse- regarding ent apply standards what is dis quences promulgation of this Court’s 1974 coverable what is admissible at trial. 56.01(b)(4) But, authorizing expert it clear of Rule 56.01 makes the informa sought discovery.1 Discovery ness discovery tion must be reason discov- —and ably ery calculated disputes to lead to about what is in the heads of reasonably 3. Refеrences are to calculated lead to the statutes RSMo 56.01(b). unless otherwise indicated. evidence. Rule admissible 56.01(b)(4) amended in 1993 to requires rule in The which the disclo- specify what information must be disclosed of all sure materials expert. current version about trial, testify who preserves witness vides: integrity adversary system, of the Discovery it enables effective cross-examination. In this of facts known and held case, undisputed by experts, it is that Dr. Beisecker is not discoverable under otherwise trial, going testifying provisions so is no of Rule and ac- there Further, expected. quired developed anticipation in- cross-examination or of liti- sought gation formation to be discovered concerns or for be obtained selections, groups for juiy focus which no one follows: (a) interrogatories suggests through will be A admissible trial. The dis- identify compel require sent desires that is not each matters, jury driven the about costs consulted selection —have misery to insufferable lev- at the hearing. would little, any, providing while benefit in els This discovery dispute arises from preparation and trial cases. to produce Crown Power’s refusal docu- principal opinion says may ments related to Dr. Beisecker’s se- changes existing objection wise consider rules lection consultation and testimony regarding Dr. governing Bei- majority’s dissenting opinion says opin- earlier The trial secker’s work. court ion announces an rule. ‘unworkable’ overruled Crown motion Power’s to bar sentiments, with but I agree production protect both believe and to documents rethink we should witness rule from further testimo- entirely. about ny his earlier work. I hasten to out point nothing this controversy expert discovery over head, or documents the perfect in this case is a illustration of how prepared, has do with anything to the mer- imperfect system our This lawsuit is. re- its of the lawsuit between South- from an earlier lawsuit in which sulted ern and Crown Power.2 Railway Norfolk Southern was found liable case, damages arising from March 2006 this talented very two and able lawyers railroad crossing collision Chariton and their have spent assistants County. many After judgment, dispute hours bringing before Southern sued Power and the trial few Equip- judge, ap- court court of case, ment in the claiming peals judges judges seven *6 negligent causing Crown Power was If the аttorney Court. South- seeks, contributing to cause the March 2006 rail- were he get everything ern what crossing get? road accident. When the he He gets does the documents the Southern, came to expert case after examined or when con- prepared questioning by its prospective jurors, adversary groups of sulted his about focus moved for a change persons demographic venue on the who bear similari- County jurors that ground Chariton were ties to those who have served might against railway. biased the The trial court in the the trial jurors county origi- where motion; a hearing nally may set on the venue also get was to be held. He the Beisecker, Power Thomas Ph. opportunity question Dr. Beisecker ex- D., previously haustively whom Crown Power about had whatever result,
person party expects injustice whom the other tire court would shall re- by call as an witness at trial seeking quire discovery name, address, viding expert's such occu- pay from an a reason- pation, place employment qualifi- and hourly able time fee for the such is give opinion, cations to an or if such deposed. expert's information is available on the vitae, curriculum such curriculum vitae September 2. Crown Power in 2008 withdrew may interrogatory attached to an- opposition change to Norfolk’s motion for response interrog- swers as a full such request of venue and acceded Norfolk’s atory, general and to state the nature of change County venue from to Sulli- Chariton subject matter which the is Cоunty, van county that Norfolk's expected testify, expert's and hour- urges witness recommended. Power ly deposition fee. this renders venue motion Norfolk's (b) party may by A discover moot, dispute discovery goes but the on and and to which facts by on until writ. euthanized this Court's testify. Unless manifest possibility remote as modern increasingly opined have learned or about might he evolve, part of the discov- case. trials because at issue here. mind ery provisions the conduct of either I do not criticize attorneys witnesses games that seek- attorney in this case. amusing another play with one following here is ing times, they costly. In the federal but trying norm in this state of professional everything whose oppos- system, to find court Court mightily out knows that is emulates,4 retained about ing рarty’s unfortunately 1.8 lawsuit, remotely even about percent of cases survive to be tried.5 doing attorney resisting vanishing been called “the aptly What protect prod- his sacred work his best large misery part trial” is caused system legal fact that our en- uct. The discovery.6 civil expense (or very perhaps requires) these courages are the Depositions spend their time professionals talented money in biggest waste of time and sign in this be a engaged nonsense result in system. They immodest fees to But I digress.3 our civilization’s decline. experts; steady of income for source Vanishing Trial and, attorneys billing court reporters; hour, a cushion of comfort our Actually to the merits a con- getting legal profession hardly trial is in the troversy having becoming forebears general recently proposition er Antonin made a simi illustration 3. Justice Scalia Weiss, just something Debra lar observation. See Cassens is in the Federal Rules Litigators necessarily Worries Should Be Do Scalia Procedure does not mean Civil Gifted Productive, Something ing ABA More good. it is Journal, at http://www. available Oct. abajournaI.com/weekly/scalia_worries_high_ ("[Gjoing at 517 See Galanter trial has court_litigators_should_be_doing_something_ costly more has become become (accessed 13, 2009). more_product technical, Nov. complex, expensive. Ris- more ing increasingly specialized lawyers, costs of Rule 26 of Civil Procedure was Federal *7 experts, deploy expensive jury the need to (b)(4) amended 1970 to include section consultants, expenses all associated have governing expert discovery. Missouri fol market.”). priced parties out of the See some thereafter, shortly suit and Rule 56.01 lowed College Report, Final 2009 American also of 1, January effective became 1975. Rule Lawyers Trial for the Institute Advance- 56.01(b)(4) was specifi the first Missouri rule Legal (University System the American ment of cally discussing Joseph experts. J. Simeone (revised 15, 2009), April 3 avail- Denver) of Walsh, P. and John The New Missouri Rules http://www.du.edu/legalinstitute/ able (Nov. Discovery, Civil J. Mo. B. on (accessed 13, 2009) publications.html Nov. 1974). Dec. (“Trials, trials, jury especially are vital to fos- Galanter, tering respect public in the civil Vanishing 5. Marc Trial: An Ex- of justice system. represent Trials a. do not amination Trials and Related Matters in fail- of Courts, system. They ure are the cornerstone Legal and State Federal 1 J. Empirical of of (2004), justice system. Unfortunately, Roger 462-63 cited L. civil be- Stud. Goldman, Why delay, expense civil Law Students Should. Take of both bench cause Course, disappearing.”) Courts 53 St. Louis Federal U.L.J. and civil trials are trials 2009). (Spring Henry, original); (emphasis in James F. Perspec- 26(b)(4) at a Crossroads: A Consumer Courts more Federal elaborate System, tive the Judicial 95 Geo L.J. 945 than Missouri’s rule for witness discov- of Friedman, (2007); 56.01(b)(4). Day M. ery, Lawrence Be- This difference reflects Vanished, Legal managerial Trials J. role the federal have rules Empirical fore Stud. (2004). judges. created for trial anoth- federal This is sanity a imagined.7 on coast of the not could have United States has no for sanity. Oregon renowned a which single I recall instance in cannot allowing discovery as to experts.8 testifies, When an par- adverse real anything of value in a ness revealed given ties are all the materials the expert instanc- probably lawsuit. There are some has opportunity and an study reviewed useful, es in which but them in preparation cross-examination. surely have information could been ob- Imagine that. by other, costly Per- tained less means. I haps this observation means have bad No actually imagine; need consider I I am memory, have led sheltered life or this from one journeyed observer who admitting Even exaggerating. Oregon: however, failings, not personal these does In years, my recent consulting corpo- my point negate financial rate аnd securities law matters car- has emotional costs witness ried me into law firm offices and courts outweigh far its usefulness. York, Illinois, Alabama, Idaho, in New Moreover, at- experienced as most Alaska, Washington, Oregon and Ha- know, torneys many de- experts welcome highest professional- waii. The level of positions just they for the income —not ism the greatest civility amount of I provide they but give also And, among lawyers see is in Oregon. experts an opportunity educated guess jurisdictions, what? Of those adversary’s approach about the to cross- Oregon only one that [the] course, adversary, examination. The adopted the Federal Rules Civil Pro- pays for this education. cedure. Discovery Repeal the Rule? Oregon ... procеdure rules civil per- jurisdiction Is there a that has refused mit opportunities engage fewer absurdity to succumb to the ex- “litigation litigation.” certainly all-out within pert I am discovery? happy know that true respect with report sanctuary there Oregon, is— piloted Simplified procedure Colorado has tried to reduce the harsh ef- in six July day discovery May between adopting modern counties 2004 and fects of $1,230 average cost of a case was under procedure” applies “simplified civil procedure the simplified compared $100,000. with involving cases claims of less than $2,212 average using total cost of a case addressing depositions, C.R.C.P. 16.1. *8 procedures. traditional Civil Justice simplified procedure permits depositions only Reform Summit, 2007 Institute for the Advancement preserve testimony or for use at trial Legal system (University the American of Den- Any obtain and wit- authenticate documents. report 13-14. The Institute's available ver) deposed ness who has been not be of- http://www.du.edu/ Web site testimony a live fered as witness (accessed legalinstitute/publications2007.html party taking depositions, the and 13, 2009). Nov. any party portions of the offer admissible depositions, showing a witness’ without (quoting 8. Civil at 11 Justice Summit Reform 16.1(k)(4) (C.R.C.P. unavailability. Czerniak, C.R.C.P. Stevens v. Or. P.3d disclosed, requires (2004)). also Although Oregon rules not do including expert a name of the and writ- provide discovery, expert they also witness report opinions ten all prohibit parties agreeing includes do not from expressed expert par- exchange and basis and or infоrmation do whatever the therefore, among things). agree prepare a reasons other ties is needed case. Missouri respect not know who the I the fact our counsel does
Opposing sufficient to not be em- expert imaginations may is until the opposing side’s complete abolition testimony. completion of brace the begins Upon examination, Oregon in cases has counsel re- ness civil as opposing direct by its stubborn refusal accomplished materials the reviewed ceives the join a recess lunch break to the ‘modern’ world federal’ long with or many discovery. problem simply a with examination. There is prepare cross sys- flawed system. tinkering with the details of a ways, it is a more efficient tem, ‘insani- sharp howеver: One definition of just cross examination is ty’ I the current jurisdictions. in A word use to describe thorough as other —a civility system thing among doing much the same over side effect is more —is again results. expecting the bar. The animosities different members of up protracted discov- through that build around a get If we cannot our minds ery, compel, argument motions to with repeal witness dis- complete depositions, scheduling over motions for rule, covery propose let me instead less trials, sanctions, trials and the within curtailing blight means of drastic nonexistent, extreme, or like seem less (1) My expert discovery. proposed Oregon.9 in require a use proposes would Perhaps expert’s ask one more at trial this Court will or study hearing with other disclose in advance11 the problems committees to this; curricu- expert, expert’s witness there name of welcome vitae, lum certainly improvement. room for One a list of materials the reviewed, summary overarching question be asked: has of each of the should fees; studying expert expert’s opinions,12 a committee witness Will (2) rearranging parties by agree- would allow simply recommend by agreement par- Titanic? the deck chairs on this Or will ment—and affected by committee recommend that Court sink ties whose interests would be ship expert testimony engage any over? damned10 and start —to (quot- require proposed perhaps rale 9. Civil Justice Summit 11-12 also should Reform Branson, ing Douglas Corpo- providing update M. No Contest: the information to any Lawyers change rаte if there is in the Perversion Justice disclosure ex- America, pert's opinion require W. 48 Case 472-73 or its bases and would Res. L.Rev. (1998)). changes. a time limit such The ex- strictly pert’s testimony would limited pre-trial those set forth disclo- epi- 10. I word used the "damned” sure. Dictionary thet but rather its Webster’s "doomed,” necessarily sense of albeit not although punishment eternal ... some 12.This is a current modification Missouri’s likely 56.01(b)(4). depositions My proposed do seem to last for rule would eternity. require a list of the materials (which discoverable) reviewed would be and a *9 summary opinions, expert's of each of the specified 11. The would be a of time number (30, 60, 90, whatever) provision than days rather the current rale’s for before the date set general merely subject hearing, provision "the nature of the mat- for a trial or with a for the time, testify." expert expand ter on which the court to shorten or contemplates longer current shows cause for a shorter rule further discov- time, emphati- parties agree ery by deposition; my proposed or for the the time rule not, specified cally parties agree. other than that in the rule. The does unless the experts.13 greatly, eliminate, as to would diminish if not the needless waste of time and money compromise This modest between our involved pres- controversies such as the insanity Oregon current model ent one.15 expert’s opinions would allow Tinkering with the details of the current summary judgment proceedings.14 much, rule will not help if at all. Abolish- attorneys It also would allow to know thе ing the rule great would be a improve- identity they of retained so could ment, returning us to the pre-1974 era use Internet and other available when lawyers had to use their wits and to examine the expert’s publica- sources their ability cooperate with their adver- might tions and activities that bear fruit saries. Eliminating depo- for cross-examination. parties essentially paying sitions will avoid Some civil has become more lawyers for their to educate their adver- complex since 1974 when this Court experts. promote civility saries’ It would adopted the rule permitting discovery of among lawyers, a feature observed in the experts. If the complexity of modern liti- system. Oregon importantly, gation Most produces some felt need to have 13.This is somеwhat similar to the recommen- party only The rule also would allow each dations issue, as to witnesses set forth in any given one witness for except College Report, Final extraordinary Century cases. 21st Civil Jus- 2009 American of Trial System: Lawyers Roadmap tice A Pilot and the Institute for the Advancement for Reform: Legal at 17 which Rules, Project College System, of the American 2009 American of Trial states: Lawyers and the Institute for the Advancement Legal System (University American Experts required should be furnish Denver) report setting opinions, written forth their them, and the for reasons and their trial proposed might 14. The provide simply testimony strictly should be limited to the that information disclosed as to the report. Except contents of their in extraor- being would be treated as under oath for the cases, dinary per one purpose summary judgment under Rule permitted any given should be for 74.04. issue. many The federal rules and state rules re- know, 15. So far Ias no Missouri court has quire expert reports urge written and we accepted the invitation to hold a "Daubert" requirement that the should be followed hearing such as those in federal trial courts in requirement courts. of an validity expert testimony which the is eval- report from an should obviate the hearings days. uated in last for See need for a in most cases. Pharmaceuticals, Inc., Daubert v. Merrell Dow fact, some Task Force members believe that 2786, 509 U.S. 113 S.Ct. 125 L.Ed.2d altogether it should obviate the need That, (1993). hope, is because Missouri experts. 490.065, lawyers judges § realize that (Emphasis agree аdded because I with these expert provi- RSMo from the members). differs well-informed task force sions of the Federal Rules of Evidence and Report recommendations in the Final judge gatekeeper does not make the published proposed now have been rules. validity expert testimony. Project The criterion "Pilot Rules” include this provides that the statute in civil posed cases is limit- experts: rule on of retained question ed to the of whether report Each must the facts and furnish a written setting opinions, data on which an forth his or her and the relies those rea- them, sonably by experts expert's reasons relied on in the relevant direct strictly Registration will field. limited to the See also State Bd. con- report. Healing tents of the McDonagh, There must be no addi- Arts v. 123 S.W.3d (Mo. 2003), tional except McDonagh, witnesses banc L, (Wolff, pretrial concurring). the initial order. S.W.3d at 160 *10 deposition testimony, of whom discovery, should the Court
expert witness to call as an party “expects in the other proposed than the go further rule no ” The at trial.... recently expert witness the similar rule opinion, or called Advance- case was by the Institute the proposed language the so he is not covered Legal System and of the American ment concur in the of the rule. I therefore College Lawyers.16 of Trial the American is, otherwise, principal opinion. the perpetuate To do deposi- of system current PRICE, JR., RAY WILLIAM Chief
tions, of continue a source is to needless Justice, dissenting. profession paying and thе harm to our public. majority settled the abandons Because theory it in Missouri law and the behind
Conclusion
rule, I
favor
an unworkable
dissent.
heartily agree
principal
with the
I most
the
regarding
Missouri law
wise
the
to examine
experts
clearly set out
State ex rel.
discovery provisions. As to
expert witness
(Mo.
Dandurand,
Tracy v.
809 (a) him, (b) work this subsections expected for Court stated only ... to be called trial. appropriate that “it is cross-exam- ine an witness to information by The distinction intended the rule is that provided her] or contra- [him consulting testifying between weaken her dict or the basis his or witnesses —not between pretrial and trial opinion.”5 Tracy unambiguous is on testifying expert witnesses. reason- issue. ing supporting this distinction is simple and clear. majority’s is interpretation simply 56.01(b)(4)(a) Rule gloss language A consulting expert collaborates with (b). 56.01(b)(4)(b), which gov- strategy; prod- counsel on work depositions, that “a provides party erns uct protection serves to incentivize and discover facts and diligent reward trial preparation and free opinions which an communication between counsel and his testify.” majority attempts to limit consultant.8 “A lawyer’s decisions about itself, language, which is not limited which people use in confidence which 56.01(b)(4)(a). by reference to Rule Rule purposes in ... preparing a case are as 56.01(b)(4)(a), governs interrogato- lawyering strategy which central to as one can ries, may through get.”9 states that “a
interrogatories require Once counsel decides have his expert identify person each whom the other party finder, however, opinions fact to call expects as a witness trial....”6 the privilege is waived. “an When attor- then, majority To reach conclusion ney opinion communicates work product to grafts language the “at trial” from the an expert specifically intended to paragraph governing interrogatories onto testify unavoidably ... he foresees the governing depositions. doing the one that opinions likelihood those will be com- so, introductory majority ignores finder, to the fact through municated 56.01(b)(4), language of which provides expert.”10 Opposing counsel must know permits discovery the rule of facts what information was the ex- by experts known and held pert experts’ opinions. to test Because anticipa- “acquired developed were or expert testimony usually focuses on sub- litigation tion for trial.”7 jects about which the finder fact knows little, does not limit the because the finder application depends fact Id.; U.S., 299, Artiles, 888, (10th Durflinger v. 5. John 8. Doe v. 350 F.3d 302 727 F.2d 891 Heitmann, (2nd Cir.2003); Cir.1984); Employees 98 F.R.D. at Committed Justice v. (holding report pre- even when Company, Eastman Kodak 251 F.R.D. pared non-testifying expert, it was sub- (W.D.N.Y.2008) (holding that materials ject when it needed for effec- by experts retained as consul testifying expert tive cross-examination of a privileged tants are and immune from disclo reaching opinion). relied on it in his sure). majority opinion internally inconsis- Litiga- 9. In re Time Theatre Securities Pizza designat- tent. Because Beisecker was never tion, (N.D.Cal.1986) (stat- 113 F.R.D. supposedly ed to his ing non-testifying expert "unique that a is a work file unrelated but his entire should have insights repository into counsel's protected been from Yet the ma- disclosure. product”). jority specifically sanctions of Bei- secker's venue-related work. Phillips, F.R.D. Musselman 56.01(b)(4). (D.Md.1997). Emphasis 7. Rule added. *12 blocking learning from “efficacy opposing of cross-examination of the counsel
on the majori- influence.”16 The any exposing this expert’s testimony point to out weak- only the nesses,” ty’s interpretation permits new pre- out in Tracy the rule set know entire- expert and his counsel tо adversary sys- of the integrity serves “manifestly ty provided to of the information and relied tem.11 It would be unfair hen guarding to on and the fox privilege allow to use the shield leaves a deliberately it had cho- house. information which offensively.”12
sen to use interpretation also majority’s The new 56.01(b)(4) held, to sets contradiction federal courts have The 490.065(3), 2000. The stat- counsel section RSMo Tracy, opposing did in Court expert opinion to ute allows an permitted opportunity “reveal based ... known him at has “facts or data made [any] influence that counsel achieved hearing.” It no recognizes or before the expert’s testimony.”13 over the And ex- to when the adopted bright-line temporal have a distinction as federal courts rule, liti- pert’s testimony during is offered this Court did enable rule gation process. To have a narrower cross-examination of effective admissibility than dispel any lingering uncertain- nesses simply makes no sense. ty of documents di- over disclosure vulged expert.14 a testifying is that reality of case It mistake. same made neither this nor
What Court to perform two functions—to recognize is to “tri- jurisdiction has done group vide focus selection work a temporal al” on the merits as limitation give testimony regarding venue selec- discovery. purposes been protected tion. What would have time at which an witness testifies subject then waived he nothing to do with whether should discovery. help out trying subject or the dis- cross-examination predicament, majority of its creates an covery process. The moment Crown de- artificial distinction in Rule cided avail itself of the benefits of hav- opens manipulation door dis- ing expert testify, it waived consulting covery process. leave This Court should the privilege over the materials it consequences to the mistake to him.15 Mis- gutting who made instead majority’s attempt split baby governing souri law invites whole new world of “hide the respectfully dissent. expert shenanigans. ball” new proposed today is an “invitation for abuse” to “effectively allows con- ... testimony
struct the
opinion
support
case,
attorney’s
theory of the
while
Justice,
Employees
11. Id.
15. See
Committed for
(holding
F.R.D.
that “when an
alternately
'privileged
hat'
12.
v.
dons
doffs
Corp.,
CP Kelco U.S. Inc. Pharmacia
(D.Del.2003).
the ‘non-privi-
F.R.D.
178-79
consultant and
lege
testifying
mate-
hat’ hat of a
witness” the
Musselman,
he
to form his
13.
rials
uses