About DRI

Membership

Membership & Referral Directory

Update Member Profile

Pay Dues Online

CLE Seminars and Events

Committees

Expert Witness Database

Publications

Archive

In a recent case in Orange County, California, the trial judge took the almost inconceivable step of ordering counsel for the defendant nursing home to testify by way of deposition – as an expert witness on her client’s staffing during the residency of plaintiff’s decedent. Carehouse Convalescent Hospital v. Superior Court of Orange County, 143 Cal. App. 4th 1558 (Calif. Ct. App. 2006). Although the California Court of Appeals summarily corrected the trial court’s decision, it is disturbing to contemplate the potential for such rulings by trial court judges in discovery disputes.

The Carehouse case involved allegations of understaffing that are so typical in cases against healthcare facilities, particularly nursing homes. In this particular case, however, the defendant was forced to admit, in response to plaintiff’s requests for admissions, that there were days during the relevant time period that it did not meet the staffing ratio per patient day required by state and federal regulations. The plaintiff predictably followed up on that admission with interrogatories asking for the staffing ratio on each day of the decedent’s one-year residency at the facility. In earlier discovery, the plaintiff had already been provided with documentation pertinent to staffing, such as staff sign-in sheets, but there were no documents kept by the facility that specifically set forth its staffing ratios for each day. Defendant objected to the interrogatory on the grounds that it had provided the plaintiff with all the documentation in its possession relevant to staffing, and the plaintiff filed a motion to compel an answer to that interrogatory.

At the hearing on plaintiff’s motion to compel, defense counsel represented to the trial court that she had responded to the requests for admission by compiling a summary of the staffing at the facility for each day, using the same documentation that had been provided to the plaintiff previously, which in conjunction with the applicable regulations enabled her to ascertain whether or not appropriate staffing ratios were maintained on a given day. Her work in analyzing the staffing documentation in terms of the regulations should be, she logically reasoned, protected from discovery under the principles of attorney work product. The trial court disagreed.

In ordering the defendant to respond to the staffing interrogatory, if necessary by providing the deposition of defense counsel, the court found that, by analyzing the staffing information and preparing a compilation of that information, defense counsel had “placed herself in the position of being an expert witness and plaintiff is entitled to depose her as an expert.” 2006 Cal. App. LEXIS 1649 at *4. This decision was made by the trial judge notwithstanding the fact that the plaintiff had been provided with (and had conceded that he had been provided with) the exact same materials used by defense counsel to compile her information.

Applying a three-prong test on interlocutory review, the appellate court found that the plaintiff had failed to make the required showing of any of the three requisite factors: 1) lack of other means of obtaining the information; 2) the information is crucial to the case; and 3) the information is not privileged. Obviously, the plaintiff had other means of obtaining the information, since he had the same materials from which to calculate the staffing ratios that defense counsel had used. The information from defense counsel’s deposition testimony was not crucial to the plaintiff’s case, simply because plaintiff wanted to confirm and verify her calculations because she had held herself out as “an expert with superior knowledge of how nursing staff ratios should be calculated.” Id. at *11. The appellate court soundly rejected plaintiff's argument, noting that the attorney “is an advocate, not an expert witness” and since she had (obviously) not been designated as a testifying expert by the defendant, “her deposition is irrelevant, and her opinions are not evidence.” Id. Finally, the appellate court found that the defendant had made the showing that the information compiled by defense counsel was protected attorney work product.

This same type of three-prong test, originally developed by the Eighth Circuit in the leading case of Shelton v. American Motors Corp, 805 F.2d 1323 (8th Cir. 1986), has been adopted by the majority of jurisdictions that have addressed the issue of deposing opposing counsel. The burden of making the requisite showing is difficult to meet, because the deposition of opposing counsel is, of course, disfavored by the courts due to its obvious chilling effect on the adversarial judicial process. As one court phrased it, “a party shouldn’t be able to use a deposition to sucker-punch the other side’s quarterback or listen in on the other side’s huddle.” Cascone v. Niles Home for Children, 897 F.Supp. 1263, 1267 (W.D. Mo. 1995). The trial judge in the Carehouse case was, however, undeterred by these principles from making a ruling that was not only clearly erroneous, but also had the potential for irreparable harm to the defense.