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State v. Riddle8/26/1998
whether a factor beyond defendant's control, i.e., a failure of the steering mechanism, was the actual cause of the collision. We agree with the state that Myers' testimony was not as unfavorable to defendant as was Fries' testimony, because he believed that tire problems or hydroplaning could have caused the collision. However, it is undisputed that Myers' testimony undermined the testimony of defendant's own expert witness, Talbot. We conclude that Myers' testimony did have a likelihood of affecting the jury's verdict in this case. Thus, we are unable to say that the admission of that evidence was harmless error.
Reversed.
WARREN, J., Dissenting.
The majority holds that the trial court erred in allowing the jury to hear highly relevant testimony from Myers, a qualified expert. The only reason for its holding is that Myers developed his opinion while working for the side that did not call him as a witness. It does not matter to the majority that Myers based his testimony entirely on the police reports, his measurements at the accident scene, and other generally available information, or that he neither relied on nor revealed any confidential information that he received while he worked for defendant. An expert, in the majority's view, is a hired gun who must remain forever loyal to the side that originally hired him, not an independent professional whose opinions may have some level of objectivity. The majority's decision is both contrary to the authorities on which it relies and unnecessarily enshrines in the law some of the most criticized aspects of the use of experts in litigation. Because I believe that the trial court acted within its discretion, I Dissent.
It is difficult to determine the precise basis for the majority's holding. The majority appears to rely on both the attorney-client privilege and the work product doctrine. However, its opinion moves between the two concepts in a way that is difficult to follow. ___ Or App ___ (slip opinion at 5-6) (states Conclusion concerning scope of attorney-client privilege in one paragraph, in next paragraph supports Conclusion by cases based on work product doctrine); id. at ___ (slip opinion at 11-12) (paragraph begins by referring to the work product doctrine, moves to a case that discusses the attorney-client privilege, and closes with an article and a case on the work product doctrine). It appears to rely on an amorphous "privilege" that seems to combine elements of both concepts, and it goes to great length to discuss matters, such as whether an expert's communication to an attorney is privileged, that are not in dispute.
In this Dissent I will treat the attorney-client privilege and the work product doctrine separately, showing that neither justifies the majority's result. Before doing so, I will emphasize two points that are central to my disagreement with the majority, neither of which it clearly discusses. The first is that the attorney-client privilege covers a communication between Myers and defendant's former attorney and only the communication; it does not turn the contents of Myers' mind into the attorney's property, nor does it necessarily prevent Myers from communicating his Conclusions to someone else or disqualify him as a witness for another party. It is the communication that is privileged, not the opinion. In contrast, the majority believes that, once it has decided that Myers' communication of his opinion to defendant's attorney was privileged, it has shown that Myers may not express the same opinion as a witness for the prosecution. As I will show, it has omitted a fundamental step from its analysis.
Second, the work product doctrine is primarily a limitation on compel
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