Experts are either or both routinely hired and consulted in cases involving personal injury. Experts take many forms. In some cases, they are physicians who give opinions about the nature, cause, and extent of a person’s injuries. Others are used to dispute the reasonableness of charges. Still, others assist the jury in determining whether a company’s decision violated some standard or practice that caused or contributed to a person’s injury and whether a company’s decisions were either or both negligent and grossly negligent.
Experts are divided into two factions—testifying experts and consulting experts. Depending on which faction experts find themselves, their opinions and materials may be discoverable.
A testifying expert is an expert who may be called to testify as an expert witness at trial. Tex. R. Civ. P. 192.7(c). On the other hand, a consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert. Tex. R. Civ. P. 192.7(d). The identity, mental impressions, and opinions of testifying experts are discoverable. However, the identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are generally privileged and are not discoverable. Tex. R. Civ. P. 192.3(e). That said, the consulting expert privilege is not limitless, as will be discussed below:
A consulting expert’s opinions are discoverable if the opinions are voluntarily disclosed. In In re Mendez, 234 S.W.3d 105, 109 (Tex. App.—El Paso 2007, no pet.), the Defendant hired a consulting expert to controvert the reasonableness of the cost and necessity of medical treatment provided to the Plaintiff. The consulting expert, Dr. Doone, executed an affidavit containing his opinions, and the affidavit was given to the Plaintiff. The Court of Appeals for El Paso held that the consulting expert privilege is waived when the consulting expert’s opinions are voluntarily disclosed.
If a consulting expert’s opinions are used to combat summary judgment or some other proceeding, the consulting expert privilege is waived. In Hardesty v. Douglas, 894 S.W.2d 548 (Tex.App.-Waco 1995)(orig.proceeding), a medical malpractice case, the defendant physician filed a motion for summary judgment supported by his own affidavit as evidence that he had met the appropriate standard of care. Another defendant filed a motion for summary judgment utilizing the doctor’s affidavit. The Plaintiffs filed a response to the motion, supported by the affidavit of Dr. Robert Capehart. The trial court granted the defendants’ motions for summary judgment and later reversed them by the appellate court. After the case was remanded, the defendants attempted to depose Dr. Capehart. The plaintiffs designated Dr. Capehart as a consulting expert and refused to produce him for the deposition because he was a consulting expert. The trial court granted the defendants’ motion to compel, and the plaintiffs sought mandamus relief. The court of appeals determined that the plaintiffs used the expert as a sword and could not rely on the consulting expert privilege as a shield. Id.
Ultimately, a party can waive the consulting expert privilege through offensive use. It is settled in Texas that “the protection afforded by the consulting expert privilege is intended to be only a shield to prevent a litigant from taking undue advantage of his adversary’s industry and effort, not a sword to be used to thwart justice or to defeat the salutary objects of discovery.” Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 559 (Tex. 1990) (internal quotations omitted). If a party puts a consulting expert’s work at issue, including by re-designating a consulting expert, the consulting expert privilege is waived. The purpose of the privilege is no longer served, and the opposing party is entitled to discovery regarding the expert’s work in his consulting capacity. Hardesty v. Douglas, 894 S.W.2d 548, 551 (Tex. App.–Waco 1995, no writ).
While a consulting expert’s opinions can be shielded from discovery on the basis of privilege, there are circumstances where the privilege is waived.
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