Michael Bradley Sowders, Michael Glen Sowders, and Pamela Sowders v. Hon. Thomas R. Lewis, Special Judge, Whitley Circuit Court

Summary

The Supreme Court of Kentucky reviewed a petition for a writ of mandamus seeking to disqualify a medical expert who had previously consulted with the plaintiffs’ prospective co-counsel. The court held that the expert should be disqualified because confidential attorney work product and privileged communications were at risk, and the plaintiffs lacked an adequate remedy by appeal. The court affirmed the denial of relief concerning defense counsel and the request to strike the defendants’ answer.

Holdings

1. When an expert reviews a case for one side before litigation and gives an opinion, that circumstance is sufficient to require the expert's disqualification from testifying for the opposing side; the court need not make a detailed finding about exactly what materials the expert reviewed.
2. Mandamus is available when a lower court acts erroneously, there is no adequate remedy by appeal or otherwise, and great injustice or irreparable injury will result; those requirements were satisfied because permitting the expert to testify could disclose protected information that could not be recalled.
3. Mandamus relief disqualifying defense counsel was properly denied because no evidence established that counsel became privy to information protected by the attorney-client or work-product rules.
4. The request to strike the defendants' answer was properly denied because striking the answer was not relevant to the privilege and expert-disqualification issue presented.

Questions Presented

1. Whether the Court of Appeals abused its discretion by denying mandamus relief to prevent Dr. Bonnarens from testifying as a defense expert after he had previously reviewed the case for prospective plaintiffs' co-counsel.
2. Whether mandamus relief was warranted to disqualify defense counsel.
3. Whether the defendants' answer should be stricken.

Disposition

reversed_and_remanded