Plaintiff’s Careless Selection of Presumably Unfavorable Expert Nearly Helps Opposing Party

Many personal injury cases require the testimony of at least one expert witness. Expert witnesses are used to establish certain facts that are beyond the common knowledge of lay witnesses. For example, in medical malpractice cases, expert witnesses are commonly used to explain to the jury what the standard procedures are in certain medical situations.

GavelThe selection of an expert witness is critical for several reasons. First, a selected expert should appear credible to both the judge and the jury, rather than looking like a “hired gun.” After all, many personal injury cases come down to a “battle of the experts,” in which each side has competing experts offering diametrically opposed opinions on the same subject. Second, an attorney should have a fairly good idea of what an expert’s opinion will be before retaining that expert. A party’s failure to know what an expert’s opinion will likely be can result in wasted time and expense. Furthermore, as a recent case indicates, careless expert selection can potentially provide favorable evidence to the opposing party.

Malashock v. Jamison:  The Defendant Seeks to Depose the Plaintiff’s Unused Expert

Malashock was injured in an accident involving the utility vehicle he was operating. He filed a personal injury lawsuit against the company that sold him the vehicle. Before the trial began, Malashock identified several expert witnesses by name and indicated the subject of their testimony. At no point was any of the experts’ reports provided to the defense.

A few weeks later, Malashock decided not to use one of the experts. The defense, likely believing that Malashock chose not to use the expert because he had offered a negative opinion of Malashock’s case, asked the court for the expert’s report and to interview the expert. The court granted the defendant permission to do so, and Malashock immediately appealed.

On appeal, the question was whether Malashock had waived the attorney work product privilege by designating an expert and providing a summary of what the expert’s proposed testimony would be. The court ultimately determined that Malashock did not waive the privilege and reversed the lower court’s decision.

Careful Expert Selection Is Key

While the appellate decision was favorable to Malashock, the selection and designation of an unused expert certainly resulted in additional expense, stress, and delay. This is a prime example of why it is important to retain a dedicated personal injury attorney with a broad network of well-qualified expert witnesses.

Have You Been Injured in an Indiana Car Accident?

If you or a loved one has recently been injured in any kind of Indiana accident, including a car accident or an incident of medical malpractice, you may be entitled to monetary compensation. The skilled personal injury attorneys at the Indiana law firm of Parr Richey Obremskey Frandsen & Patterson have decades of combined experience handling personal injury cases requiring specially selected expert testimony. Call 888-765-7411 to set up a free consultation to discuss your case today.

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Court Discusses Hotel’s Duty to Keep Guests Safe in Recent Opinion, Indiana Injury Lawyer Blog, November 16, 2016