Walthour, the defendants in an automobile accident case sought certiorari review
of a trial court order directing the defendants to disclose four redacted
paragraphs in a medical opinion report prepared by their expert witness.
The case involves personal injuries resulting from a motor vehicle accident.
The plaintiff later had surgery which allegedly was necessary because
of the accident. A separate medical malpractice claim was filed against
the surgeon based on a perforated colon that occurred during surgery.
The complaint filed in this case, however, did not allege medical malpractice
nor did it seek damages for any complications arising from the surgery.
The defendants retained an orthopedic surgeon who, at defense counsel’s
request, prepared a report summarizing his opinions regarding causation
between the accident and the surgery as well as the standard of care rendered
by the surgeon who perforated the plaintiff’s colon. The defendants
disclosed the orthopedic surgeon as an expert who would testify as to
the causal connection between the accident and the surgery. The defendants
produced a copy of the expert’s report, but redacted four paragraphs,
claiming work product. The trial court later compelled the defendants
to disclose the paragraphs. This appeal followed.
The First District noted that parties are entitled to discovery regarding
any matter, not privileged, that is relevant to the subject matter of
the pending action. To obtain discoverable documents protected by as work
product, a party must show a need for the materials for the preparation
of their case and the inability to obtain the substantial equivalent without
undue hardship. The First District first found that the expert’s
opinion as to whether the injuries for which the plaintiff had surgery
were related to accident was relevant to the case, and not privileged.
The First District then noted, however, that the defendants also retained
the expert to render opinions as the standard of care attendant to the
plaintiff’s surgery. Because the plaintiff is not seeking damages
in this case for medical malpractice connected to the surgery, the expert’s
standard of care opinions are not relevant. The court further noted that
the standard of care opinions were rendered at the instruction of counsel
and in order to ascertain the defendants’ potential recourse against
the surgeon should a verdict be entered in favor of the plaintiff. Therefore,
the redacted paragraphs of the medical opinion concerning the standard
of care were irrelevant and privileged. The plaintiff argued that discovery
of the standard of care opinions was necessary to explore motive and bias.
The First District ruled, however, that offering an expert’s unpresented
opinions simply to attack the expert’s credibility is improper.