State Ex Rel. Crown Power and Equipment Company, LLC v. Ravens

309 S.W.3d 798, 2009 Mo. LEXIS 535, 2009 WL 3833830

• Court: Supreme Court of Missouri
• Decided: November 17, 2009
• Docket: SC 89671
• Status: Published

Opinions

ZEL M. FISCHER, Judge.

The issue in this writ proceeding is whether an expert witness who was informally produced for his deposition because he was going to testify at a pretrial hearing on venue but was not designated to testify as an expert witness at trial may be compelled to disclose material provided to him unrelated to the venue issue.

Background

Crown Power & Equipment Company seeks a writ of prohibition preventing the trial court from compelling its expert witness’ testimony and production of his entire file.

Norfolk Southern Railway Company alleges that Crown Power was negligent in causing or contributing to cause a March 24, 2006, railroad grade crossing accident in Keytesville, Missouri. The case proceeded to jury trial in the Chariton County circuit court. Norfolk Railway moved for a mistrial before completing its voir dire on the grounds that, based on answers given by some potential jurors, the railroad could not receive a fair trial. Judge Gary Ravens granted Norfolk Railway’s motion.

Norfolk Railway then moved for change of venue, claiming that Chariton County inhabitants were prejudiced against Norfolk Railway and that Crown Power had undue influence over them. Norfolk Railway retained jury consultant Lisa Dahl to testify as an expert at a hearing on the venue motion. Crown Power informally advised Norfolk Railway that it had retained Thomas Beisecker, Ph.D., as an expert for the purpose of analyzing and critiquing Dahl’s venue study. Unknown to Norfolk Railway, prior to Dr. Beisecker’s deposition, Crown Power had retained Dr. Beisecker in the same case as a non-testifying consultant to conduct focus groups and assist in trial strategies, including jury selection.

During Dr. Beisecker’s video deposition, Norfolk Railway began to question him about work he had done for Crown Power unrelated to the venue study. Crown Power objected to the questions on the ground that Dr. Beisecker’s work unrelated to venue was protected from disclosure as attorney work product and instructed Dr. Beisecker not to testify or produce documents unrelated to venue matters. Dr. Beisecker complied, and the parties agreed that Norfolk Railway would formally raise the issue with Judge Ravens.

After the deposition, Norfolk Railway caused a subpoena duces tecum to be served on Dr. Beisecker in Kansas. In response, Crown Power filed a motion to quash the subpoena. The parties agreed to table Crown Power’s motion to quash the subpoena pending in Kansas until Judge Ravens made his rulings. Judge Ravens was presented with Norfolk Railway’s motion to compel production of Dr. Beisecker’s file unrelated to the venue issue and his continued deposition on topics unrelated to venue and Crown Power’s competing motion for protective order based on work product privilege. Prior to Judge Ravens ruling on these competing motions, Crown Power withdrew its objection to Norfolk Railway’s request for a change of venue and agreed to a change of venue from Chariton County to Sullivan County. Norfolk Railway had requested venue be changed to Sullivan or Platte County. No evidence was offered by either party; Judge Ravens sustained the motion for change of venue and ordered the case sent to Sullivan County.

At the conclusion of the hearing on venue, Norfolk Railway indicated it wanted to pursue its motion to compel despite the venue change. Judge Ravens granted the motion to compel the deposition and production of Dr. Beisecker’s file and overruled Crown Power’s motion for protective order.

Crown Power filed its petition for a writ of prohibition in this Court. This Court entered a preliminary writ of prohibition, which it now makes absolute.

Standard of Review

This Court has the authority to “issue and determine original remedial writs.” Mo. Const, art. V, sec. 4.1. Filing a petition for a writ of prohibition is an appropriate procedure when a party has been directed to produce material that is privileged. This is because the damage to the party against whom discovery is sought is irreparable, because if the privileged material is produced, the damage cannot be repaired on appeal. State ex rel. Boone Retirement Ctr., Inc. v. Hamilton, 946 S.W.2d 740, 741 (Mo. banc 1997).

Analysis

Crown Power claims that Norfolk Railway’s motion to compel is moot because Crown Power conceded to the change of venue to Sullivan County and withdrew Dr. Beisecker as a witness for any purpose. The matter is not moot because the order to compel is outstanding and because the venue decision theoretically may still be the subject of an appeal. This Court declines to quash the preliminary writ of prohibition on mootness grounds.

In State ex rel. Tracy v. Dandurand, this Court, interpreting Rule 56.01(b)(3), stated: “The discovery of facts known and opinions held by an expert are, until the expert is designated for trial, the work product of the attorney retaining the expert.” 30 S.W.3d 831, 834 (Mo. banc 2000). Rule 56.01(b)(3) protects attorney work product by requiring a showing that the party seeking discovery is “unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

Norfolk Railway argues that this Court’s decision in Tracy requires an attorney to disclose all documents given to an expert who testifies at a pretrial hearing even if the expert is not designated to testify at trial. Tracy is not so broad.

In Tracy, the plaintiff sued her insurance company for bad faith for allegedly exposing her to liability in excess of her policy coverage when defending her in a bodily injury claim. Tracy at 832. While preparing for trial, the insurer inadvertently sent confidential documents to its expert witness, who was designated to testify at trial. Id. at 833. Pursuant to a notice duces tecum, the expert produced his file for the plaintiff when he was deposed, but he was not questioned about the file at this deposition. Id. The plaintiffs counsel took the deposition of the insurer’s attorney and questioned him about the confidential documents; the attorney refused to answer citing attorney-client privilege. Id. At a subsequent video deposition of insurer’s expert, the plaintiff cross-examined him about the documents. Id. Thus, the expert in Tracy was provided with materials, he in turn provided opposing counsel with the materials at his deposition, and he was designated to testify at trial. Id. at 836.

This Court in Tracy concluded, “The bell has been rung and cannot be unrung.” Id. But, in this case, the bell has not been rung. The facts of this case are distinguishable from Tracy in three major respects. First, Dr. Beisecker never provided the non-venue-related materials to Norfolk Railway. Second, Dr. Beisecker never was designated to testify at trial. Third, venue was changed to a county that was suggested as suitable by both parties without evidence or testimony offered by either party.

Dr. Beisecker was not designated as a testifying witness for trial; therefore, he cannot be compelled to disclose all materials provided to him by Crown Power. In Tracy, this Court stated the bright-line rule that “[a]ll materials given to a testifying expert must, if requested, be disclosed.” Id. In this case, Dr. Beisecker was not a “testifying expert” as defined by Rule 56.01(b)(4) because Crown Power never designated him as an expert to testify at trial. Dr. Beisecker’s limited role was to offer opinions at the hearing on Norfolk Railway’s motion for change of venue, which never occurred. Accordingly, the bright-line rule from Tracy that experts designated to testify at trial pursuant to Rule 56.01(b)(4) must produce all material given to them is not applicable to the facts of this case.¹ Therefore, the holding of State ex rel. Tracy v. Dandurand, 30 S.W.3d 831 (Mo. banc 2000), that experts designated to testify at trial must produce all materials given to them if requested, is not modified.

Rule 56.01(b)(4)(a) states: “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing such expert’s name, address, occupation, place of employment and qualifications to give an opinion ...” (emphasis added). By its plain language, Rule 56.01(b)(4)(a) presupposes that a testifying expert is one who will testify at trial, not a consultant who may provide some testimony at a pretrial hearing that does not deal with the merits of the case. In this case, Dr. Beisecker was informally disclosed to opposing counsel as a witness to be called at the venue hearing. In Tracy, this Court made clear that when an expert is mistakenly given privileged documents, the attorney may withdraw the expert’s designation as a testifying expert prior to the deposition; then, “[t]he attorney can claim work product protection as to that retained expert, since the expert will not be called for trial.” Tracy at 835-36. Here, Crown Power never intended its jury consultant, Dr. Beisecker, be called at trial and has conceded that Dr. Beisecker will never be called at trial. Accordingly, Crown Power may claim work product protection of Dr. Beiseeker’s non-venue related materials.²

Rules 56.01(b)(4) and (5) provide the rules of discovery for both retained and non-retained experts who are expected to testify at trial. These 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. With the proliferation of the use of expert testimony for a myriad of purposes, it may be wise to consider changes to existing rules, but such changes should be made through the appropriate process — not a court decision. It is important for attorneys and parties to be able to rely on this Court to follow the rules as written.

Norfolk Railway argues that the language of § 490.065.3³ requires disclosure of facts or data when the expert is designated to testify at any hearing. “The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the healing .... ” Section 490.065.3 (emphasis added). However, § 490.065 deals with admissibility of expert testimony in civil actions; whereas, the issue in this case is discovery of privileged work product information held by an expert who is not designated to testify at trial. Tracy confirms that different standards apply regarding what is discoverable and what is admissible at trial. But, Rule 56.01 makes it clear the information sought in discovery must be reasonably calculated to lead to the discovery of admissible evidence. The only claimed need for further discovery of information given to Dr. Beisecker is to be prepared to cross-examine him, but he never testified, and he is not going to testify at trial.⁴

Conclusion

The writ of prohibition is made absolute.

TEITELMAN, RUSSELL, and STITH, JJ., concur.

WOLFF, J., concurs in separate opinion filed.

TEITELMAN, concurs in opinion of WOLFF, J.

PRICE, C.J., dissents in separate opinion filed.

BRECKENRIDGE, J., concurs in opinion of PRICE, C.J.

1 . The dissenting opinion alleges the Court is "abandon[ing] settled Missouri law and the theory behind it in favor of an unworkable rule.” Yet, the entire dissenting opinion cites only one Missouri case decision, State ex rel. Tracy v. Dandurand, 30 S.W.3d 831 (Mo. banc 2000), which is thoroughly discussed. The dissenting opinion supports its logic by citing eight federal cases that, of course, have different expert witness rules. As for the claim of "unworkability,” it is not unworkable for the word ‘Trial” in the rules to mean "trial” because lawyers and judges know what that means.

2 . The dissent’s suggestion at pages 5-6 that the Court is "trying to help Crown out of its predicament” is incorrect. The Court merely decides this case, the facts of which will likely never reoccur, by application of its rules as written. The well-reasoned opinion in Tracy dealing with Rule 56.01(b)(3), "Trial Preparation Materials,” remains fully intact.

3 . References to statutes are to RSMo 2000, unless otherwise indicated.

4 . The rule in Tracy, which requires the disclosure of all materials provided to an expert witness who was to testify at trial, preserves the integrity of the adversary system, because it enables effective cross-examination. In this case, it is undisputed that Dr. Beisecker is not going to be testifying at trial, so there is no cross-examination expected. Further, the information sought to be discovered concerns focus groups for juiy selections, which no one suggests will be admissible at trial. The dissent desires to compel discovery that is not reasonably calculated to lead to the discovery of admissible evidence. Rule 56.01(b).