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May 29, 2006

An interesting case came down last week that could have major ramifications on the way expert testimony is prepared.  The plaintiffs' experts in a wrongful death case were deposed, and testified that they discussed their findings with a nurse-paralegal working for the plaintiffs' attorney, who then prepared a report which the experts signed.  Could the defense use that as a justification to take the deposition of the nurse-paralegal?

Yes, said a majority of the court in Stanton v. University Hospitals Health System, Inc. The plaintiffs filed a protective order claiming that the nurse-paralegal's testimony fell under the work product privilege, but the court upheld the trial judge's denial of the order. The court relied heavily on a very recent decision of the U.S. District Court here, Reliance Ins. Co. v. Keybank U.S.A., 2006 U.S. Dist. LEXIS 12002 (ND Ohio 2006), which held that defense counsel were entitled to the attorneys' notes regarding the expert's report after the expert testified that the attorney had "assisted" him in writing the report.

Both Judge Kilbane's majority decision and Judge McMonagle's dissent make compelling arguments, and are in fact focused more on the effects of the decision than the merits of this particular case. The majority emphasizes that it is permitting the paralegal to be deposed only on the "single, narrow issue" of "how the expert reports were generated."

On the other hand, there's something to Judge McMonagle's "slippery slope" argument. She correctly observes that counsel often provide terminology - "reasonable medical certainty," for example - for experts to include in their reports. If the expert admitted as much on deposition, couldn't defense counsel use this to depose the attorney? Could they use this to call the attorney as a witness at trial, perhaps providing a basis for disqualification of the attorney? And given the dissent's observation that "'limited deposition' is an oxymoron," can any such discovery be so limited that it doesn't inevitably intrude upon the "mental processes of counsel" that the work product doctrine unquestionably protects?

There's not much question that Stanton will not be the last word on this subject; defense counsel from here on out can be expected to explore the expert-attorney relationship much more thoroughly. A lot of what happens will depend upon the trial courts and the bar itself. Stanton did present an unusual set of facts. It is quite customary for counsel to fine-tune an expert report; it is not customary for them to draft the report in its entirety and then ship it off to the expert for signature. As long as discovery under Stanton is limited to the latter situation, we probably won't be sliding down the slippery slope that Judge McMonagle worries about.

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