Disqualify defense expert who was previous consulting expert for plaintiff: SOWDERS V. HON. THOMAS LEWIS (SC 12/20/2007)

DATE RENDERED: 12/20/2007

The Supreme Court reversed the COA’s denial of a petition for a writ of mandaus to disqualify a defendant’s expert witness (Dr. Bonnarens) in a medical negligence action finding that the Dr. Bonnarens had been contacted by the plaintiff’s attorney and the attorney-client privilege attached to those communications.

The "Sowders" had filed a medical malpractice action on behalf of their son alleging the doctor failed to properly diagnose and treat their son’s septic hip.
Attorney Lee Turner represented Appellants (Sowders) in the case and had prior to suit obtained and reviewed medical records, performed legal research, consulted with experts, and prepared work product–including a memorandum summarizing the records, his research, and his mental impressions. Attorney Paul Casi was working with Turner and claimed he contacted Dr. Bonnarena to review "confidential attorney work product information, including information concerning the mental impressions and conclusions of Attorney Turner including his work product memoranda." The defense later retained Bonnarens as their expert.

With regard to the denial of the write, the issue whether Dr. Bonnarens should be allowed to testify at trial–falls within the second class of writ cases . The Court of Appeals denied the writ, finding that Appellants failed to satisfy their burden of proof that Dr. Bonnarens received work product. Upon review of the matter, SC found Court of Appeals abused its discretion in refusing to compel the circuit court to disqualify Dr. Bonnarens. Accordingly, SC reversed the part of the Court of Appeals’ denial of the writ of mandamus concerning the disqualification of Dr. Bonnarens.

The attorney-client privilege applies to a confidential communication "made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]: the client, the client’s representatives, the lawyer, or the lawyer’s representatives." ‘Where the privilege applies its breach undermines confidence in the judicial system and harms the administration of justice." In this matter, the attorney-client privilege attached to any confidential communications between Casi and Dr. Bonnarens. There is evidence that Casi, plaintiffs’ prospective co-counsel, provided Dr. Bonnarens, a consulting medical expert, with work product. In his affidavit, Casi stated that he asked Dr. Bonnarens to review "confidential attorney work product information, including information concerning the mental impressions and conclusions of Attorney Turner including his work product memoranda." Thus, there is great risk that Dr. Bonnarens’ testimony could violate the attorney-client privilege. In addition, any work product Casi provided to Dr. Bonnarens is protected from discovery. See CR 26 .02(4)(b) . Although Dr. Bonnarens insists he was not given work product, the circumstances suggest otherwise.

It is evident, that petitioners are without an adequate remedy by appeal or otherwise. Once the information is furnished it cannot be recalled. It may or may not be used at the trial, and the injury suffered by petitioners will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case . Petitioners have no other adequate remedy.

Moreover, under the unduly narrow interpretation of the work product doctrine adopted by the Court of Appeals, attorneys will be reluctant to disclose confidential information to non-testifying consulting experts, because of the risk that they might testify on privileged matters for the opposing party. This will surely result in a chilling effect on the use of pre-litigation consultative evaluations.

The SC declined to employ a rule of inclusion / exclusion for expert witnesses in this instance that requires a finding of fact (which was never made in this case) as to exactly what the expert reviewed for the opposing party. A simple finding that the expert did review the case for the opposing party and gave an opinion is sufficient. No one disputes that this occurred here . Litigation experts understand this rule and it is not difficult to comply with. This resolution protects the spirit of Newsome and facilitates continued pre-litigation consultation. Appellants are thus without an adequate remedy by appeal or otherwise and allowing Dr. Bonnarens to testify would result in a substantial miscarriage of justice. Additionally, this result removes any possibility of circumstances occurring at trial where Dr. Bonnarens might inadvertently blurt out, "I reviewed the case for the plaintiffs before it was filed and told them there was no claim."

Michael Stevens

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