 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hancock v. Shook3/18/2003
t the party can elect whether to call the expert at trial, and that records given by the party to the expert are still subject to the attorney-client privilege if the expert is not designated as a trial witness. State ex rel. American Economy Ins . Co. v. Crawford , 75 S.W.3d 244 (Mo. banc 2002), makes no mention of the control question except to repeat Tracy's statement that a party has control over its expert witnesses and, interestingly, to characterize the statement as dicta. Id . at 246. Finally, the federal First Circuit cases Ortiz-Lopez v . Sociedad Espanola de Auxilio Mutuo v. Beneficiencia de Puerto Rico, 248 F.3d 29 (lst Cir. 2001), and Klonoski v. Mahlab , 156 F.3d 255 (1st Cir. 1998), are distinguishable because neither case involved an authorization form given to the party seeking discovery so as to afford both parties equal access.
In short, I am skeptical that under our rules, Dr. Mozier's failure to disclose the records constitutes a discovery violation that should be charged to plaintiffs. Plaintiffs, themselves, did not have actual possession, custody or control of the records, much less knowledge of the existence of the records. In fact, had any of the parties known of the existence of the records, they were equally available to all. Even if there was a technical discovery violation charged to plaintiffs, the circumstances here preclude the harsh sanction imposed by the trial court. Given the critical nature of the testimony, the fact that by all accounts Dr. Mozier's failure to disclose was inadvertent, not intentional, and further, the need to balance the vigilant enforcement of the rules of discovery with an abiding concern for a truth-seeking process, the trial court should have sought an alternative solution. The proper recourse was to have allowed the testimony after affording defendants sufficient time to examine the reports, depose Dr. Mozier and prepare for cross-examination. After all, this is not a case in which plaintiffs were "sandbagging" the defendants, withholding evidence in order to surprise the defendants at trial. Nor is this a case in which the late disclosure of the evidence gave rise to the need for an independent investigation to determine the veracity of the evidence, or the need to secure expert testimony to contravene the evidence. Indeed, even from a strategic standpoint, defendants would have suffered no prejudice because their defense of lack of causation, and their evidence in support of that defense, would have been the same with or without the introduction of Dr. Mozier's records.
For these reasons, I would reverse and remand for a new trial.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|