EAST ST. LOUIS – Chief U.S. District Judge Nancy Rosenstengel ordered two experts for injury lawyer Brian Wendler to testify regarding preparation of their reports.
On Sept. 5, Rosenstengel granted a motion by Peregrine Transportation to continue depositions of truck safety expert John Wise and cellular device expert Christopher Keel.
At their depositions, they were allegedly instructed not to identify the typist of their reports.
Rosenstengel wrote, “Here, it is impossible for defendants to know whether all or any portion of plaintiffs’ experts’ reports were prepared by counsel, as the experts were instructed not to answer any questions about who typed the report.”
“Without that information, defendants are unable to effectively cross examine the experts on the facts and data they considered or the assumptions they relied upon,” she added.
Wendler represents Maxwell Schramm and Alexandria Schramm, who sued Peregrine and truck driver Pamela Kidd in St. Clair County Circuit Court in 2021.
Maxwell Schramm claimed he suffered injuries when Kidd was stopped in the right shoulder and then pulled her westbound tractor trailer into his lane on Interstate 64 in St. Clair County.
Kidd told an officer she traveled about 55 miles an hour, and Schramm failed to slow down.
Wendler’s complaint alleged that Schramm was charged with a crime, and Kidd was not.
He claimed Peregrine knew dashboard camera footage contradicted her statements.
Wendler claimed Peregrine was willing to allow Schramm’s prosecution and conviction rather than risk a fine and damage to its record.
He alleged negligent operation against Kidd and negligent hiring, training, and supervision against Peregrine.
On Alexandria Schramm’s behalf, Wendler sought damages for loss of consortium.
Peregrine and Kidd removed the complaint to district court last year because of diverse citizenship as Kentucky citizens.
Their counsel, Lawrence Hall of St. Louis, moved to dismiss the complaint, and Wendler amended it last year.
Hall moved again to dismiss and filed a counter claim that Schramm caused the crash.
The Schramms moved to dismiss the counter claim.
Peregrine and Kidd deposed experts Wise and Keel last October without identifying their typist.
This March, Rosenstengel ruled that the Schramms could pursue a claim that Kidd violated Illinois criminal code when she supplied false information to officers.
She found that whether Maxwell Schramm was speeding was irrelevant to that claim.
She also found the Schramms failed to state a negligent hiring claim but adequately stated a claim of negligent training and supervision sufficient to seek punitive damages.
Rosenstengel declined to dismiss the counter claim, “given the stage of this case and the potential interplay between plaintiffs’ punitive damages claim, Alexandria Schramm’s loss of consortium claim, and defendants’ counterclaim for contributory negligence.”
Keel filed a rebuttal to a report of Peregrine and Kidd, and they deposed him again in May. He again did not identify the typist.
Hall moved to compel answers on Aug. 16.
Wendler responded, citing rules of attorney client privilege and two cases where judges protected the privilege.
He claimed Wise drives a truck and works daily, Keel was deposed twice, and the motion to compel bordered on harassment.
Hall replied that draft reports of experts weren’t at issue and defendants asked the court to depose and cross examine them regarding who drafted their final reports.
“If in fact Plaintiffs’ counsel did write a significant portion of the expert reports, this evidence is probative regarding the weight that should be afforded to the experts’ opinions,” he wrote.
Rosenstengel found it was undisputed in both cases that counsel contributed to preparation of the reports.
“Thus, there was no objection to the question of authorship, but rather to disclosing in exact detail who typed each section of the report,” she wrote.
Rosenstengel followed the decision of another judge who found the typist of a final report was not protected because it was not a draft and it contained facts, data, or assumptions that counsel provided to the expert.
That judge found defendants should be able to cross examine the expert with the fact that portions of the report were typed by someone else.
She quoted a Texas judge who wrote, “Experts should not be attorneys’ puppets who merely parrot opinions ginned up by counsel.”
Rosenstengel has set trial to begin in February.