author: DIANE M. HENSON, Justice. G. ALAN WALDROP, Justice,

text:
    Cristina L. TREADWAY, Appellant, Sheriff James R. Holder, and Comal County, Texas Cross-Appellants, v. Sheriff James R. HOLDER and Comal County, Texas, Appellees, Cristina L. Treadway, Cross-Appellee.
    No. 03-08-00086-CV.
    Court of Appeals of Texas, Austin.
    April 16, 2010.

      B. Craig Deats, Deats Durst Owen & Levy, PLLC, Austin, TX, for Appellant.
    Michael A. Shaunessy, Sedgwick, De-tert, Moran & Arnold, LLP, Austin, TX, for Appellees.
    Before Justices PATTERSON, WALDROP and HENSON.
   OPINION

DIANE M. HENSON, Justice.

Appellant Cristina Treadway appeals from the trial court’s order granting summary judgment in favor of appellees Sheriff James Holder and Comal County (collectively, “the County”) in her suit for declaratory and mandamus relief. The County cross-appeals, arguing that the trial court erred in denying its request for attorney’s fees. We reverse the trial court’s order granting summary judgment and remand for further proceedings. We affirm the trial court’s denial of the County’s request for attorney’s fees.

DISCUSSION

Treadway began employment with the Comal County Sheriffs Office in February 1994, serving as a corrections officer at the county jail. She was promoted to the rank of corporal, and again to the rank of sergeant, before moving into the position of administrative sergeant in October 2001.

In late December 2005, Jeff Paullus, the lieutenant in the jail division of the sheriffs office and Treadway’s supervisor, received a complaint from a shift sergeant that Treadway had met with a trainee, Jason Cline, only twice that month despite a requirement that she meet with him weekly. In response to this allegation, Treadway claimed that she had met with Cline four times that month, providing copies of weekly observation reports to confirm her statement. Paullus then reviewed the applicable employee time sheets and jail camera footage, and ultimately concluded that Treadway had not met with the trainee each week as required, and that she had fabricated the observation reports. On February 13, 2006, Sheriff Holder ordered Treadway’s termination. The County maintains that Treadway was not terminated for failing to meet with a trainee on a weekly basis, but for falsifying government documents and lying in the course of an investigation. According to Treadway, she learned about the allegations of her untruthfulness or falsification of government records for the first time from the County’s legal counsel after her discharge, and she never received a signed, written complaint regarding these allegations.

Treadway filed suit against the County, seeking a declaration that the County violated chapter 614, subchapter B of the government code (hereinafter, “Subchap-ter B”) in terminating her. See Tex. Gov’t Code Ann. §§ 614.021-.023 (West Supp. 2009). Subchapter B pertains to complaints against peace officers and describes procedures that must be followed before disciplinary action may be taken. See id. The parties filed cross motions for summary judgment, and on October 19, 2007, the trial court granted the County’s motion and denied Treadway’s motion. On February 7, 2008, the trial court entered a take-nothing judgment in favor of the County, but denied the County’s request for attorneys’ fees. This appeal and cross-appeal followed.

STANDARD OF REVIEW

Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The issues raised in this appeal involve statutory construction, which is also subject to de novo review. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). In determining the legislature’s intent in enacting a statute, courts should look to the plain meaning of the words used in the statute. See Fireman’s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex.2000). We presume that every word was deliberately chosen and that excluded words were intentionally excluded. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981).

DISCUSSION

In a single issue on appeal, Treadway argues that the trial court erred in granting the County’s motion for summary judgment on the ground that the requirements of Subchapter B do not apply to her termination because it was not based on a “complaint” as contemplated by the statute.

The County concedes that Treadway is a law enforcement officer subject to Sub-chapter B. See Tex. Gov’t Code Ann. § 614.021. Subchapter B provides as follows:

SUBCHAPTER B. COMPLAINT AGAINST LAW ENFORCEMENT OFFICER OR FIRE FIGHTER
§ 614.021. Applicability of Subchapter
§ 614.022. Complaint to be in Writing and Signed by Complainant
To be considered by the head of a state agency or by the head of a fire department or local law enforcement agency, the complaint must be:
(1) in writing; and
(2) signed by the person making the complaint.
§ 614.023. Copy of Complaint to be Given to Officer or Employee
(a) A copy of a signed complaint against a law enforcement officer of this state or a fire fighter, detention officer, county jailer, or peace officer appointed or employed by a political subdivision of this state shall be given to the officer or employee within a reasonable time after the complaint is filed.
(b) Disciplinary action may not be taken against the officer or employee unless a copy of the signed complaint is given to the officer or employee.
(c) In addition to the requirement of Subsection (b), the officer or employee may not be indefinitely suspended or terminated from employment based on the subject matter of the complaint unless:
(1) the complaint is investigated; and
(2) there is evidence to prove the allegation of misconduct.

Id. §§ 614.021-.023.

Treadway contends that the County violated Subchapter B in terminating her because she did not receive a copy of a signed complaint regarding her alleged dishonesty and falsifying of government documents prior to her termination. In response, the County argues that Subchap-ter B does not apply to Treadway’s termination because she was not terminated on the basis of a “complaint.” Accordingly, this appeal turns on the question of whether the internal allegations leading to Treadway’s termination constitute a “complaint” under Subchapter B.

The County argues that Sub-chapter B cannot be construed to apply to allegations made against an officer by his or her supervisors because to do so would alter the employment at-will status of peace officers in Texas. The long-standing rule in Texas is that absent a specific agreement to the contrary, employment may be terminated by the employer or the employee at will “for good cause, bad cause, or no cause at all.” See Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.1998). At-will employment may be modified by contract or by express rules or policies. See County of Dallas v. Wiland, 216 S.W.3d 344, 348 (Tex.2007); see also Muncy v. City of Dallas, 335 F.3d 394, 398 (5th Cir.2003) (stating that at-will status may be abrogated by “statute, rule, handbook, or policy which limits the condition under which the employment may be terminated”). While the County emphasizes the at-will status of peace officers in Texas, we need not address any effect Subchapter B might have on at-will employment because it is undisputed that Treadway was terminated for cause. The issue, then, is not whether she could have been terminated without cause, but whether the cause for which she was terminated — lying to a supervisor and falsifying training documents — resulted from a “complaint” that triggers the requirements of Subchapter B.

Subchapter B, while requiring complaints to be in writing and signed by the complainant, does not define “complaint.” See Tex. Gov’t Code Ann. §§ 614.021-.023. Given the lack of definitions in Subchapter B itself, at least one court of appeals has found guidance in interpreting Subchapter B by looking to the Fire Fighter and Police Officer Civil Service Act (the “Civil Service Act”), Tex. Loc. Gov’t Code Ann. §§ 143.001-.363 (West 2008 & Supp.2009). See Guthery v. Taylor, 112 S.W.3d 715, 723 (Tex.App.-Houston [14th Dist.] 2003, no pet.). The Civil Service Act, which applies to certain municipal fire fighters and police officers, was enacted in order to “secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.” Id. § 143.001. Section 143.123 of the Civil Service Act governs the interrogation of a fire fighter or police officer in the course of an investigation that might result in punitive action against that person. See id. § 143.123. After observing the “similar nature” of section 143.123 and Subchapter B in both purpose and legislative history, the court in Guthery held that the definition of “complainant” found in section 143.123 was equally applicable to Subchapter B. 112 S.W.3d at 723.

Like the court in Guthery, we look to section 143.123 of the Civil Service Act for guidance in interpreting Subsection B. An investigation under section 143.123 is triggered by a complaint. See Tex. Loc. Gov’t Code Ann. § 143.123(f). While “complaint” is not defined, the statute specifically provides that an interrogation may not be conducted “based on a complaint by a complainant who is not a peace officer” unless the complaint is verified. Id. This specific provision applying only to complaints by non-peace-officers suggests that in the absence of such qualifying language, the term “complaint” includes internal complaints by other officers. The requirement of a verified written complaint in this context is the only aspect of section 143.123 that differentiates complaints by citizens from internally generated complaints. The statute also provides that a complainant may not also be assigned to conduct an investigation into the complaint, further supporting the notion that the legislature did not intend the term “complaint” to be limited to external citizen complaints. See id. § 143.123(e).

Furthermore, section 143.123 defines “investigation” as “an administrative investigation, conducted by the municipality, of alleged misconduct by a fire fighter or police officer that could result in punitive action against that person.” This definition of “investigation” could be equally applied to an investigation of allegations of misconduct by a citizen, or to an investigation of internal allegations by an officer’s supervisor. There is no indication that the legislature intended to create a distinction.

Similarly, the language of Subchapter B states that an officer may not be suspended or terminated as the result of a complaint unless “the complaint is investigated” and “there is evidence to prove the allegation of misconduct.” Tex. Gov’t Code Ann. § 614.023(c). Consequently, it appears that under both the Civil Service Act and Subchapter B, a “complaint” triggers an investigation into allegations of misconduct. Compare Tex. Loc. Gov’t Code Ann. § 143.123(a)(2) with Tex. Gov’t Code Ann. § 614.023(c). Neither statute makes any distinction based on the source of the allegations. Therefore, it necessarily follows that a “complaint” for purposes of Subchapter B is any allegation of misconduct that could result in disciplinary action.

Under this definition, the allegations against Treadway — dishonesty and falsifying training records — qualify as a complaint. The fact that these allegations were made by Treadway’s supervisors is immaterial. Rather, the relevant facts are that there were allegations of misconduct, and that these allegations led to Tread-way’s termination. In requiring that there be an investigation and evidence to prove allegations of misconduct before an officer can be terminated, Subchapter B makes no exception for allegations by an officer’s supervisors. See Tex. Gov’t Code Ann. § 614.023(c). Because every word excluded from a statute is presumed to have been excluded for a purpose, we cannot read additional language into the statute to create such an exception. See Cameron, 618 S.W.2d at 540. Under the plain language of section 614.023, any “allegation of misconduct” for which disciplinary action may be imposed represents a complaint, regardless of the source. See Tex. Gov’t Code Ann. § 614.023.

Our conclusion that a “complaint” for purposes of Subchapter B includes any allegation of misconduct that could give rise to disciplinary action is consistent with the purpose of the statute as described in Turner v. Perry, 278 S.W.3d 806, 823 (Tex.App.-Houston [14th Dist.] 2009, pet. filed). The court in Tuner stated:

By enacting [Subchapter B], the State provided covered employees with procedural safeguards to reduce the risk that adverse employment actions would be based on unsubstantiated complaints. Moreover, the State determined that the value of these protections outweighs the fiscal and administrative burdens incurred by complying with statutory requirements.

Id.

The court went on to hold that by failing to provide proper documentation of the complaints against an officer before terminating him, the officer’s employer “impaired [his] ability to investigate or defend against the complaints made against him.” Id.

Here too, Treadway’s “ability to investigate or defend against the complaints made against h[er]” was impaired by the County’s failure to provide her with a written, signed complaint prior to her termination. Id. The legislature enacted Sub-chapter B to protect peace officers from disciplinary action based on unsubstantiated allegations of misconduct. See id. Because we must construe the statute as written, we decline to judicially create an exception for allegations coming from an officer's supervisors.

Furthermore, the definition of “complaint” under Subchapter B has previously been applied to internal complaints. See Fudge v. Haggar, 621 S.W.2d 196, 198 (Tex.App.-Texarkana 1981, writ ref'd n.r.e.); see also Op. Tex. Att’y Gen. No. GA-0251 (2004). In Fudge, the court held that a police department properly complied with the predecessor statute to Sub-chapter B by presenting a terminated officer with a letter of complaint, signed by his supervisor, prior to terminating him. 621 S.W.2d at 198. In reaching this conclusion, the court stated, “In this case we deal with an internally generated complaint. Even though the initial information received by the police department was external, coming from the Dallas County Sheriffs Office, the entire investigation began within the police department.” Id. (emphasis added). The court went on to state that the supervisor’s signed letter of complaint “was in compliance with [the predecessor to Subchapter B].” Id. The implication of Fudge is that Subchapter B applies to both externally generated and internally generated complaints, so that any complaint against a law enforcement officer, including complaints originating from within the police department, “must be reduced to writing and signed by the person making it.” Id. We see no reason why this proposition is not equally applicable in cases involving complaints originating from within an officer’s chain of command.

Texas Attorney General Opinion GA-0251 also contemplates the applicability of Subchapter B to internal complaints. Tex. Att’y Gen. No. GA-0251. The question at issue was whether certain provisions of the education code conflict with Subchapter B by allowing a school superintendent to terminate a school-district peace officer without a written, signed complaint. Id. After determining that both Subchapter B and the relevant education code provisions could be applied to school-district peace officers without conflict, the opinion addresses concerns that students or parents may be disinclined to provide a written complaint by stating, “As circumstances warrant, a superintendent of the school district or others may initiate disciplinary action by filing a signed complaint, or complaints may prompt an internal investigation and report by the police department sufficient to satisfy the requirements of [Subchapter B].” Id. (citing Fudge, 621 S.W.2d at 198). By citing Fudge in this context, and pointing out that an internal department report may satisfy Subchapter B, the opinion assumes the applicability of Subchapter B to internal complaints and suggests that an internal investigation must result in a written, signed complaint in order to comply with Subchapter B.

We hold that the allegations of misconduct giving rise to Treadway’s termination constitute a “complaint” for purposes of Subchapter B. Accordingly, we reverse the trial court’s order granting summary judgment in favor of the County and remand for further proceedings.

The County’s Cross-Appeal

In a sole issue on cross-appeal, the County argues that the trial court erred in denying its request for attorneys’ fees. Because we hold that the County’s motion for summary judgment was granted in error, we affirm the order denying the County’s request for attorneys’ fees.

CONCLUSION

We reverse the trial court’s order granting summary judgment in favor of the County and remand for further proceedings consistent with this opinion. The trial court’s order denying the County’s request for attorneys’ fees is affirmed.

Dissenting Opinion by Justice WALDROP.

G. ALAN WALDROP, Justice,

dissenting.

I believe that government code chapter 614, subchapter B, properly interpreted, does not apply to allegations that originate from within the employee’s chain of command. In order to hold that Subchapter B applies to allegations originating from within the employee’s chain of command, the majority relies on evidence favoring neither interpretation and ignores the evidence favoring the opposite interpretation. I would affirm the judgment of the district court in all respects.

The issue in this case is whether the allegations that Treadway lied to her supervisor and falsified training documents — allegations that originated from within Treadway’s chain of command— constituted a “complaint” in accordance with Subchapter B. In construing a statute, our primary objective is to ascertain and give effect to the legislature’s intent. City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex.2006). We should look first to the plain and ordinary meaning of the statute’s words. Id.. We may also consider the object sought to be attained, the consequences that would follow from a particular construction, and any legislative history. See Tex. Gov’t Code Ann. § 311.023 (West 2005). We should presume that the legislature intended a just and reasonable result. See id. § 311.021(3) (West 2005).

The majority concludes that any “allegation of misconduct,” regardless of its source, constitutes a “complaint” for purposes of Subchapter B. However, the majority’s conclusion is an unreasonable reading of the statutes’ plain language. Under the majority’s construction, the agency head’s own allegations could not even be “considered” until he first wrote them down and signed the document. See id. § 614.022 (West Supp.2009). There seems little reason to require a complaint from one’s own superiors to be “signed,” see id. § 614.022(2), as the employee would presumably know the identity of his own superiors. It also seems unnecessary to require such a complaint to be “filed,” see id. § 614.023(a) (West Supp.2009), when the employee’s superiors would presumably be filing the document with themselves. Moreover, when the employee’s superiors’ complaint is based on their own observations and conclusions, they would have little reason to ensure that their complaint is “investigated,” see id. § 614.023(c)(1), particularly when the employee’s employment is at will. If section 614.023 were intended to apply to any termination for cause— which is the practical consequence of the majority’s interpretation of the statute-one would expect such' intent to be more explicit than is present in Subchapter B. Instead, Subchapter B’s language indicates that the purpose of the legislation is to ensure that the employee’s chain of command sufficiently identify, communicate, and investigate complaints originating from outside that chain of command. The more reasonable interpretation of Sub-chapter B is that a “complaint” is one that is received — not created — by the employee’s chain of command.

Recent legislative history supports the interpretation that the term “complaint” does not refer to disciplinary actions originating from within the employee’s chain of command. A bill analysis for the 2005 amendment to Subchapter B — which expanded the class of employees covered by Subchapter B and added subsection (c) to section 614.023 — stated as follows:

Current law allows politically powerful people to have an officer fired simply by filing a complaint. Therefore, the only people who might be deterred by this bill from filing a complaint are those who intend to file baseless complaints for their own personal benefit. Those who file legitimate claims, which are the majority of complainants, would not be hindered by this bill.

Tex. House Research Org., Bill Analysis, Tex. H.B. 639, 79th Leg., R.S. (2005). An implication of this paragraph is that Sub-chapter B is directed at those who seek to have an officer fired, not at those who already possess the direct authority to fire them. The majority’s conclusion to the contrary will, I believe, be a surprise to the legislature.

According to another bill analysis for the 2005 amendment, a flaw in the pre-2005 version of the statute was that it did not require investigation or sufficient evidence “when disciplinary action is taken against an employee based on a complaint.” See Tex. House Comm, on Urban Affairs, Bill Analysis, Tex. H.B. 639, 79th Leg., R.S. (2005) (emphasis added). The inclusion of the italicized phrase indicates that disciplinary action can also be taken in the absence of a complaint. Since it is reasonable to assume that disciplinary action would occur only in the event of alleged misconduct, it stands to reason that not all such allegations constitute a “complaint” for purposes of the statute. The employee’s supervisor may make a determination of cause for disciplinary action in the absence of a Subchapter B complaint, or independent of such a complaint — as, I would hold, occurred here.

It is also noteworthy that the courts of appeals that have construed Subchapter B (or its predecessor statute) have done so in the context of an allegation of misconduct originating from outside the employee’s chain of command. See Turner v. Perry, 278 S.W.3d 806, 823-24 (Tex.App-Houston [14th Dist.] 2009, pet. denied) (statements from “fellow officers who wish to remain anonymous” and “concerning unidentified students”); City of Athens v. MacAvoy, 260 S.W.3d 676, 678 (Tex.App.-Tyler 2008, no pet.) (allegations by female citizen and her husband); City of Seagoville v. Lytle, 227 S.W.3d 401, 405-06 (Tex.App.-Dallas 2007, no pet.) (complaint filed against immediate supervisor); Guthery v. Taylor, 112 S.W.3d 715, 717-18 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (citizen’s complaint prompting departmental investigation); Fudge v. Haggar, 621 S.W.2d 196, 197 (Tex.Civ.App.-Texarkana 1981, writ ref'd n.r.e.) (report from sheriffs department of improper conduct by patrolman in police department); see also Putter v. Anderson, 601 S.W.2d 73, 77 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.) (citizen’s written complaint); Graves v. City of Dallas, 532 S.W.2d 106, 107 (Tex.Civ.App.-Dallas 1975, writ ref'd n.r.e.) (citizens’ written charges of misconduct). Since Subchapter B’s original enactment in 1969, there is no authority (other than the majority’s holding in this case) for the proposition that an allegation or disciplinary issue originating from within one’s chain of command constitutes a “complaint” for purposes of Subchapter B.

The majority’s holding is also inconsistent with the Fourteenth Court of Appeals’ analysis in Guthery v. Taylor. In Guthery, the police department proposed disciplinary action against a police officer based on its investigation of a citizen’s complaint against the officer. See 112 S.W.3d at 718-19. At issue was whether the applicable complainant was the chief of police or the citizen. See id. at 721. In holding that the citizen was the complainant, the court relied on section 143.123 of the Texas Local Government Code based on the statutes’ similar nature, purpose, and legislative history. See id. at 722-23. The majority in this case, addressing Guthery, acknowledges that section 143.123 defines the term “complainant” as “a person claiming to be the victim of misconduct.” See Tex. Log. Gov’t Code Ann. § 143.123(a)(1) (West 2008). Yet, in this case, there is simply no “victim of misconduct,” other than the sheriffs office itself. If Tread-way’s termination were based on Cline’s allegation of missed meetings, a complaint might have been required under Subchap-ter B. Treadway’s termination was based, instead, on her alleged dishonesty to her superiors during the investigation of Cline’s allegation. This is not a situation in which the protections of Subchapter B are necessary. There is no concern of individuals outside Treadway’s chain of command conspiring to interfere with her employment. Treadway’s alleged misconduct was an internal disciplinary matter, and the allegations of such conduct were made by her superiors.

The evidence demonstrates, as a matter of law, that the allegations of Treadway’s dishonesty originated from within her chain of command during an investigation of a trainee’s complaint, and that Tread-way’s termination of employment was based on those allegations, not the complaint under investigation. Therefore, I would affirm the judgment of the district court.

      . Section 143.123 defines ‘‘complainant" as “a person claiming to be the victim of misconduct by a fire fighter or police officer.” Tex. Loc. Gov't Code Ann. § 143.123(a)(1) (West 2008). It was this definition that led the Guthery court to conclude that an internal report based on an external citizen complaint could not satisfy the requirements of Sub-chapter B, as the victim of the misconduct under those circumstances would be the citizen, rather than the police department itself. Guthery, 112 S.W.3d at 723. There is no citizen complainant in this case. The only victim of Treadway's alleged misconduct would be the sheriff’s office itself.

      . "Opinions of the attorney general, while not binding on the judiciary, are persuasive and are entitled to consideration.” In re Texas Dep’t of State Health Servs., 278 S.W.3d 1, 4-5 (Tex.App.-Austin 2008, no pet.).

      . We note that to the extent the opinion suggests that an internal department report based on an external citizen complaint may comply with Subchapter B in the absence of a written complaint from the citizen, that notion conflicts with the holding of Guthery v. Taylor, 112 S.W.3d 715, 723 (Tex.App.-Houston [14th Dist.] 2003, no pet.). In Guthery, the court held that a written complaint under Subchapter B must be signed by the complaining victim, so that an internal report based on a citizen’s complaint would be insufficient to satisfy Subchapter B. Id. In the present case, the allegations of misconduct arose internally, so there was no external complaint or citizen victim.

      . While Treadway urges us to render judgment in her favor, we find remand to be the more appropriate remedy. The County's motion for summary judgment was limited to whether Subchapter B applied to the facts of this case. On appeal, the County contends that a disputed fact issue remains as to whether Treadway received a signed complaint that would have complied with Sub-chapter B. Furthermore, other than attorneys’ fees, the record contains no evidence of Treadway’s damages.

      . I agree with the majority that there is no distinction between "external” complaints relating to an employee and "internal” complaints — i.e., between complaints generated outside an organization and those generated within the organization — for purposes of the application of Subchapter B. However, I do believe there is a distinction, for purposes of Subchapter B, between "complaints” made against an employee by persons outside the employee’s supervisory or reporting hierarchy and performance evaluations within the hierarchy.

      . I construe the term "filed” to refer to the delivery of the complaint, not its storage. See Tex. Gov't Code Ann. § 614.023(a) (West Supp.2009) (copy of complaint to be provided "within a reasonable time after the complaint is filed”). Otherwise, the employee's superiors could determine whether and when to disclose the existence of a complaint against the employee.

      . Both Treadway and the County also appeal the district court's denial of their respective requests for attorneys' fees. In addition to affirming the district court's ruling on the parties' motions for summary judgment, I would conclude that the district court did not abuse its discretion in denying both sides' requests for attorneys' fees.


source: Caselaw Access Project

author: GRAVES, Senior Judge.

license: Public Domain

text:
    Todd Carl FILZEK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-000536-MR.
    Court of Appeals of Kentucky.
    Feb. 20, 2009.
    Ordered Published by Supreme Court Aug. 19, 2009.
    Discretionary Review Denied by Supreme Court Aug. 19, 2009.
    R. Tucker Richardson, III, Brandi Lewis, Lexington, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Heather M. Fryman, Assistant Attorney General, Frankfort, KY, for appel-lee.
    Before LAMBERT and TAYLOR, Judges; GRAVES, Senior Judge.

      . Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

GRAVES, Senior Judge.

Todd Carl Filzek entered a conditional guilty plea to four counts of violating KRS 510.155, which prohibits the unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities. In exchange for his plea, he received a total of five years’ imprisonment. On appeal, Filzek argues that: (1) KRS 510.155 is unconstitutional; and (2) the multiple counts of the indictment violate double jeopardy principles. We affirm.

The charges against Filzek arose from four conversations he had on the internet and telephone with an undercover police detective posing as a fourteen-year-old girl named Joy. During these internet conversations, Filzek provided Joy with his telephone number so that she could call him and listen to him masturbate. Filzek also arranged to meet Joy in person so that he could engage in sexual activities with her. He sent Joy photographs of himself including one of his penis. In total, there were four separate conversations occurring October 5th, 6th, 10th, and 12th. Filzek entered a conditional guilty plea in Fayette Circuit Court. This appeal followed.

Filzek argues that the peace officer provision of KRS 510.155 violates the First Amendment of the United States Constitution both on its face and as applied to him because no actual child was involved in his communications and that the statute punishes mere belief.

KRS 510.155(1) states:

It shall be unlawful for any person to knowingly use a communications system, including computers, computer networks, computer bulletin boards, cellular telephones, or any other electronic means, for the purpose of procuring or promoting the use of a minor, or a peace officer posing as a minor if the person believes that the peace officer is a minor or is wanton or reckless in that belief, for any activity in violation of KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 529.100 where that offense involves commercial sexual activity, or 530.064(l)(a), or KRS Chapter 531.

“Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” U.S. v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 1841, 170 L.Ed.2d 650 (2008). In Williams, the United States Supreme Court held that a federal statute which prohibited the pandering and solicitation of child pornography did not run afoul of the First Amendment. Id. The Supreme Court further found that the statute in question did not violate the First Amendment protection of virtual child pornography enunciated in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) because “[a] crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children.” Williams, 128 S.Ct. at 1844.

KRS 510.155 merely prohibits the use of electronic means to engage in or solicit already otherwise prohibited activities. As such, the First Amendment protections are not implicated. Under Williams, a defendant could be convicted for pandering or soliciting virtual pornography if the defendant believed that the pornography involved actual children. The same reasoning applies by analogy to the peace officer provision of KRS 510.155. It is not material that the child turned out to be a police officer. It is the defendant’s belief that he was soliciting an actual child to engage in sexual activities which is at issue. “There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts.” Williams, 128 S.Ct. at 1845. KRS 510.155 is not unconstitutional on its face or as applied to Filzek.

Filzek next argues that the multiple counts of the indictment violated the protection against double jeopardy because they were part of an ongoing course of conduct.

KRS 505.020 provides in relevant part: (1) When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:
(c) The offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.

“Whether a particular course of conduct involves one or more distinct offenses under a statute depends on how a legislature has defined the allowable unit of prosecution.” Williams v. Commonwealth, 178 S.W.3d 491, 495 (Ky.2005).

KRS 510.155(1) defines its unit of prosecution as the unlawful use of electronic means to procure or promote the use of a minor “... for any activity in violation of KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 529.100 where that offense involves commercial sexual activity, or 530.064(l)(a), or KRS Chapter 531.” The singular use of the words “any” and “activity” indicates that the Legislature intended prosecution for each incident involving electronic means to engage in the proscribed conduct.

In this case each count of the indictment referred to conduct which would constitute a violation of KRS 510.155 in and of itself. On October 5, 2006, Filzek used the internet to send an explicit photograph of himself to Joy and indicated several times that he wished to perform oral sodomy on her. On October 6, 2006, Filzek again stated that he wished to engage in sexual activity with Joy and asked that she engage in phone sex with him. He also solicited “naughty” photographs of Joy. On October 10, 2006, Filzek masturbated while on the phone with Joy, stated that he would like to touch her, and asked if she would like to lose her virginity to him. On October 12, 2006, Filzek again masturbated while on the telephone and arranged a meeting place for sexual activity. The facts of this case did not demonstrate a course of conduct which culminated in a single proscribed activity. Although Filzek’s conversations all involved internet and telephone conversations with Joy, each count of the indictment referred to temporally discrete incidents that involved the use of the internet and telephone to engage in distinct proscribed activities. The protection against double jeopardy was not violated.

Accordingly, the judgment of the Fay-ette Circuit Court is affirmed.

ALL CONCUR.


author: NICKELL, Judge.

text:
    CITIZENS NATIONAL BANK OF JESSAMINE COUNTY, n/k/a Citizens Bank of Jessamine County, Appellant, v. WASHINGTON MUTUAL BANK; Anthony Reynolds; Kim Reynolds; GTKY Credit Union, Inc.; and Rose Day, Appellees.
    No. 2008-CA-000155-MR.
    Court of Appeals of Kentucky.
    April 9, 2010.

      William Miles Arvin, Jr., Nicholasville, KY, for Appellant.
    Valerie Van Valkenburg, Stephanie A. Maguire, Cincinnati, OH, for Appellee, Washington Mutual Bank.
    No brief filed for Anthony Reynolds.
    No brief filed for Kim Reynolds.
    No brief filed for Rose Day.
    Before KELLER and NICKELL, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

NICKELL, Judge.

In this foreclosure action, Citizens National Bank of Jessamine County (Citizens) has appealed from the Garrard Circuit Court’s November 2, 2007, order accepting the report and recommendations of the master commissioner which found Washington Mutual Bank held a valid, first and prior security interest in a manufactured home owned by Anthony and Kim Reynolds, and finding Citizens’ security interest in the same home was inferior to Washington Mutual’s lien. The master commissioner found Washington Mutual’s filing of the foreclosure action accompanied by the filing of a notice of lis pendens placed all creditors on notice of its claimed interest in and to the manufactured home and created a priority claim in it, thereby defeating Citizens’ assertion of a priority claim against the home based upon its later-acquired perfected security interest. After a careful review of the record, the law, and the arguments of the parties, we reverse.

The sole issue to be decided in this appeal is the priority of competing liens in and to a manufactured home located on, but not attached to, a parcel of real estate which is the subject of a foreclosure action. The salient facts are not in dispute and were succinctly set out by the master commissioner in his report. For the sake of judicial economy, we recite those facts as set forth in the report and adopt them as our own.

The land and mobile home were both previously owned by Rose Day. On February 18, 1999[,] Ms. Day conveyed the real estate to Anthony Reynolds and Kim Reynolds by deed, which was thereafter duly recorded in the Garrard County Clerk’s Office. The deed description does not mention the mobile home; but it is clear from the record that the Reynolds were purchasing both from Ms. Day. The Reynolds further executed a mortgage to Washington Mutual Bank’s predecessor in interest that was recorded shortly after the deed conveying a security interest in the Thompson Road property. There is no question the Washington Mutual Bank has a valid and first lien on the real property. There is no specific mention of the mobile home on the mortgage. Additionally, the Reynolds did not obtain a title certificate to the mobile home in their name. The evidence reveals that at the time of filing of the Complaint in this action by Washington Mutual, the mobile home was still titled in Ms. Day’s name. There was no title lien statement issued in favor of Washington Mutual, or its predecessors in interest. The parties acknowledge that the mobile home was never legally affixed to the real property so as to remove it from the motor vehicle title records and change its character from personal property to real property. As of the date of the filing of the Complaint, no person or entity had perfected any security interest in the mobile home.
On or about May 30, 2002, the Reynolds executed a second mortgage encumbering the real property in favor of Citizens. Once again there was no description of the mobile home in the mortgage and no title lien statement issued in favor of Citizens. The Reynolds subsequently defaulted on both loans prompting the filing of the present litigation.
The Complaint was filed by Washington Mutual on April 16, 2007, claiming lien priority on both the real estate and the manufactured home. On April 19, 2007, the Plaintiff recorded a lis pen-dens notice with the Garrard County Clerk’s Office claiming an interest in both the real estate and the mobile home. (E18, P724). The lis pendens and its amendment both identified Citizens National Bank of Jessamine County as an interested party. Further, Citizens was listed as a party defendant and properly served with the Complaint. On May 16, 2007, after being served with the Complaint, Citizens and the Reynolds executed a Title Lien Statement regarding the mobile home, which was recorded in the Garrard County Clerk’s Office on August 14, 2007. Both Washington Mutual and Citizens obtained judgments entered by the Court on September 21, 2007, both of which appear to grant both parties priority claims on the mobile home.

The master commissioner, citing P.A. Stark Piano Co. v. Fannin, 212 Ky. 640, 279 S.W. 1080 (1926), determined that KRS 382.440 applied equally to real and personal property. Without further citation to authority, the master commissioner found “the filing of the Complaint and lis pendens by Washington Mutual created a priority claim in the mobile home.” The report held Citizens had legal notice of Washington Mutual’s claim to the mobile home and the title lien statement executed after Citizens and Reynolds were put on notice constituted a transfer or assignment of interest and, pursuant to the mandates set forth in KRS 378.010, was void as to Washington Mutual. Thus, the master commissioner concluded Washington Mutual’s claims to the real estate and the manufactured home should be given priority over all other claims.

Citizens filed exceptions to the master commissioner’s report and recommendations, claiming the filing of a notice of lis pendens did not independently create a lien against property and did not take priority over liens filed subsequent to the lis pendens filing. The trial court denied the exceptions and confirmed the master commissioner’s report by docket order on November 2, 2007. Citizens’ subsequent motion to alter, amend or vacate the order was denied. This appeal followed.

Citizens contends the trial court erred in confirming the master commissioner’s report as it was based on the erroneous conclusion that the filing of a complaint and lis pendens created a priority lien on the manufactured home. Citizens contends the purpose of a lis pendens is to provide notice of a claim and applies only to interests in real estate. Further, Citizens argues Strong v. First Nationwide Mortgage Co., 959 S.W.2d 785 (Ky.App.1998), stands for the proposition that a lis pendens does not independently create a lien and does not take priority over subsequently perfected liens.

On the contrary, Washington Mutual claims — and the master commissioner held — it created a valid Us pendens, the lis pendens doctrine applies to personal property, the filing of the lis pendens created a lien on the manufactured home, and Citizens’ attempt to encumber the manufactured home after it received notice of Washington Mutual’s claim was void. As did the master commissioner, Washington Mutual relies on P.A. Stark in support of its position. Washington Mutual further claims that because the lis pendens was filed several months prior to Citizens’ perfection of its lien, Citizens cannot acquire a superior interest even though Washington Mutual did not perfect its lien.

We agree with Citizens. Kentucky’s Us pendens statute clearly applies only to real estate. KRS 382.440. In Greene v. McFarland, 43 S.W.3d 258, 260 (Ky.2001) (citing Black’s Law Dictionary 943 (7th ed. 1999)), the Supreme Court of Kentucky defined Us pendens as “[a] notice, recorded in the chain of title to real property, ... to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome.” Further, as correctly noted by Citizens, the mere filing of a notice of lis pendens is insufficient to independently create a security interest. KRS 382.440; Strong, 959 S.W.2d at 787-88 (quoting Leonard v. Farmers and Traders Bank, Shelbyville, 605 S.W.2d 770, 772 (Ky.App.1980)). Neither does such a filing affect the priority of competing security interests. Id. at 788.

Washington Mutual claims P.A. Stark and New Holland Mach. Co. v. Bell, 357 S.W.2d 868 (Ky.1962), held that the common law doctrine of Us pendens applied to personal property and the statutory enactment of the doctrine did not abrogate its application to personal property. However, Washington Mutual fails to appreciate that the cases upon which it relies were decided under laws in effect prior to Kentucky’s adoption of the Uniform Commercial Code (UCC), which now governs priorities among competing lien claimants. See Williams v. Fulmer, 695 S.W.2d 411 (Ky.1985). As adopted in this Commonwealth, the UCC does not allow for the filing of a lis pendens on personal property such as the manufactured home in issue here. We are unable to locate any Kentucky case applying the lis pendens doctrine to certificated personal property and we are convinced none exists.

There is no question that Reynolds did not comply with the requirements of KRS 186A.297 and, therefore, the manufactured home remains personal property. KRS 186A.190 provides that the sole means of perfecting a security interest in personal property for which a certificate of title is issued is by placing a notation of the lien on the certificate of title. See also Hiers v. Bank One, 946 S.W.2d 196, 198 (Ky.App.1996). There is no dispute Citizens has so perfected its lien but Washington Mutual has not. It is fundamental that unperfected security interests are subordinate to perfected security interests. See KRS 355.9-317. This is true regardless of Citizens’ knowledge of Washington Mutual’s filing of a notice of Us pendens and any claim set up by such filing because, as we stated earlier, the notice of lis pendens applied only to the real estate which was the subject of the underlying foreclosure action, and not the manufactured home situated thereon. Because Washington Mutual has failed to perfect its lien under the mandates of KRS 186A.190, its interest in the Reynolds’ manufactured home must necessarily give way to Citizens’ perfected claim. The master commissioner’s findings were incorrect and the trial court erred in not so finding.

Finally, it is important to note that the sole issue decided in this appeal is the priority of the competing liens of two creditors. Nothing in this opinion should be construed to imply that Washington Mutual does not have an interest in the manufactured home. Rather, we hold only that Washington Mutual’s claim against the home is junior to Citizens’ interest. Our holding also does not diminish the extent of Washington Mutual’s interest against the Reynolds.

For the foregoing reasons, the judgment of the Garrard Circuit Court is reversed and the cause remanded for entry of a judgment consistent with this opinion.

ALL CONCUR.

      . The trial court, the master commissioner and the parties use the terms "mobile home” and "manufactured home” interchangeably. However, the term "mobile home” has fallen out of favor in recent years and has been replaced by the more modern and correct term "manufactured home.” When quoting the trial court, the master commissioner or an argument of the parties, we will adopt the language utilized in the original. However, we shall otherwise use the more current terminology.

      .KRS 382.440.

      . The home, a 1994 Fleetwood Stoneridge, is located at 422 Thompson Road, Lancaster, Garrard County, Kentucky. It has not been affixed to the land in a permanent manner, nor has there been recorded an affidavit of conversion to real estate pursuant to KRS I86A.297. The priority of liens on the real estate is not in dispute as all parties concede Washington Mutual has a first and prior mortgage interest on the land.

      . KRS 378.010 states in pertinent part:
      Every gift, conveyance, assignment or transfer of, or charge upon, any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to delay, hinder or defraud creditors, purchasers or other persons, and every bond or other evidence of debt given, action commenced or judgment suffered, with like intent, shall be void as against such creditors, purchasers and other persons. This section shall not affect the title of a purchaser for a valuable consideration, unless it appears that he had notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor.

        . As previously noted, there is no dispute Washington Mutual holds a first and prior mortgage interest in the real property.

      . KRS 186A.297 provides:
      (1) When a manufactured home is or is to be permanently affixed to real estate, the owner may execute and file an affidavit of conversion to real estate with the county clerk of the county in which the real estate is located. The affidavit shall attest to the fact that the home has been or will be permanently affixed to the real estate and be accompanied by a surrender of the Kentucky certificate of title. The county clerk shall file the affidavit of conversion to real estate in the miscellaneous record book.
      (2) A county clerk shall not accept a surrender of a Kentucky certificate of title which displays an unreleased lien unless it is accompanied by a release of the lien. When the county clerk files the affidavit of conversion to real estate, the county clerk shall furnish a copy to the property valuation administrator for inclusion in the real property tax rolls of the county. A filing of an affidavit of conversion to real estate and a surrender of a Kentucky certificate of title shall be deemed a conversion of the property as an improvement to the real estate upon which it is located.


author: ZEL M. FISCHER, Judge. MICHAEL A. WOLFF, J., WILLIAM RAY PRICE, JR., Chief Justice,

text:
    STATE ex rel. CROWN POWER AND EQUIPMENT COMPANY, L.L.C., Relator, v. The Honorable Gary E. RAVENS, Respondent.
    No. SC 89671.
    Supreme Court of Missouri, En Banc.
    Nov. 17, 2009.

      Larry J. Tyrl, Tyrl & Bogdan, Overland Park, KS, for relator.
    Richard E. McLeod, Jeff Heinrichs, McLeod & Heinrichs, Kansas City, MO, for respondent.
   ZEL M. FISCHER, Judge.

The issue in this writ proceeding is whether an expert witness who was informally produced for his deposition because he was going to testify at a pretrial hearing on venue but was not designated to testify as an expert witness at trial may be compelled to disclose material provided to him unrelated to the venue issue.

Background

Crown Power & Equipment Company seeks a writ of prohibition preventing the trial court from compelling its expert witness’ testimony and production of his entire file.

Norfolk Southern Railway Company alleges that Crown Power was negligent in causing or contributing to cause a March 24, 2006, railroad grade crossing accident in Keytesville, Missouri. The case proceeded to jury trial in the Chariton County circuit court. Norfolk Railway moved for a mistrial before completing its voir dire on the grounds that, based on answers given by some potential jurors, the railroad could not receive a fair trial. Judge Gary Ravens granted Norfolk Railway’s motion.

Norfolk Railway then moved for change of venue, claiming that Chariton County inhabitants were prejudiced against Norfolk Railway and that Crown Power had undue influence over them. Norfolk Railway retained jury consultant Lisa Dahl to testify as an expert at a hearing on the venue motion. Crown Power informally advised Norfolk Railway that it had retained Thomas Beisecker, Ph.D., as an expert for the purpose of analyzing and critiquing Dahl’s venue study. Unknown to Norfolk Railway, prior to Dr. Beisecker’s deposition, Crown Power had retained Dr. Beisecker in the same case as a non-testifying consultant to conduct focus groups and assist in trial strategies, including jury selection.

During Dr. Beisecker’s video deposition, Norfolk Railway began to question him about work he had done for Crown Power unrelated to the venue study. Crown Power objected to the questions on the ground that Dr. Beisecker’s work unrelated to venue was protected from disclosure as attorney work product and instructed Dr. Beisecker not to testify or produce documents unrelated to venue matters. Dr. Beisecker complied, and the parties agreed that Norfolk Railway would formally raise the issue with Judge Ravens.

After the deposition, Norfolk Railway caused a subpoena duces tecum to be served on Dr. Beisecker in Kansas. In response, Crown Power filed a motion to quash the subpoena. The parties agreed to table Crown Power’s motion to quash the subpoena pending in Kansas until Judge Ravens made his rulings. Judge Ravens was presented with Norfolk Railway’s motion to compel production of Dr. Beisecker’s file unrelated to the venue issue and his continued deposition on topics unrelated to venue and Crown Power’s competing motion for protective order based on work product privilege. Prior to Judge Ravens ruling on these competing motions, Crown Power withdrew its objection to Norfolk Railway’s request for a change of venue and agreed to a change of venue from Chariton County to Sullivan County. Norfolk Railway had requested venue be changed to Sullivan or Platte County. No evidence was offered by either party; Judge Ravens sustained the motion for change of venue and ordered the case sent to Sullivan County.

At the conclusion of the hearing on venue, Norfolk Railway indicated it wanted to pursue its motion to compel despite the venue change. Judge Ravens granted the motion to compel the deposition and production of Dr. Beisecker’s file and overruled Crown Power’s motion for protective order.

Crown Power filed its petition for a writ of prohibition in this Court. This Court entered a preliminary writ of prohibition, which it now makes absolute.

Standard of Review

This Court has the authority to “issue and determine original remedial writs.” Mo. Const, art. V, sec. 4.1. Filing a petition for a writ of prohibition is an appropriate procedure when a party has been directed to produce material that is privileged. This is because the damage to the party against whom discovery is sought is irreparable, because if the privileged material is produced, the damage cannot be repaired on appeal. State ex rel. Boone Retirement Ctr., Inc. v. Hamilton, 946 S.W.2d 740, 741 (Mo. banc 1997).

Analysis

Crown Power claims that Norfolk Railway’s motion to compel is moot because Crown Power conceded to the change of venue to Sullivan County and withdrew Dr. Beisecker as a witness for any purpose. The matter is not moot because the order to compel is outstanding and because the venue decision theoretically may still be the subject of an appeal. This Court declines to quash the preliminary writ of prohibition on mootness grounds.

In State ex rel. Tracy v. Dandurand, this Court, interpreting Rule 56.01(b)(3), stated: “The discovery of facts known and opinions held by an expert are, until the expert is designated for trial, the work product of the attorney retaining the expert.” 30 S.W.3d 831, 834 (Mo. banc 2000). Rule 56.01(b)(3) protects attorney work product by requiring a showing that the party seeking discovery is “unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

Norfolk Railway argues that this Court’s decision in Tracy requires an attorney to disclose all documents given to an expert who testifies at a pretrial hearing even if the expert is not designated to testify at trial. Tracy is not so broad.

In Tracy, the plaintiff sued her insurance company for bad faith for allegedly exposing her to liability in excess of her policy coverage when defending her in a bodily injury claim. Tracy at 832. While preparing for trial, the insurer inadvertently sent confidential documents to its expert witness, who was designated to testify at trial. Id. at 833. Pursuant to a notice duces tecum, the expert produced his file for the plaintiff when he was deposed, but he was not questioned about the file at this deposition. Id. The plaintiffs counsel took the deposition of the insurer’s attorney and questioned him about the confidential documents; the attorney refused to answer citing attorney-client privilege. Id. At a subsequent video deposition of insurer’s expert, the plaintiff cross-examined him about the documents. Id. Thus, the expert in Tracy was provided with materials, he in turn provided opposing counsel with the materials at his deposition, and he was designated to testify at trial. Id. at 836.

This Court in Tracy concluded, “The bell has been rung and cannot be unrung.” Id. But, in this case, the bell has not been rung. The facts of this case are distinguishable from Tracy in three major respects. First, Dr. Beisecker never provided the non-venue-related materials to Norfolk Railway. Second, Dr. Beisecker never was designated to testify at trial. Third, venue was changed to a county that was suggested as suitable by both parties without evidence or testimony offered by either party.

Dr. Beisecker was not designated as a testifying witness for trial; therefore, he cannot be compelled to disclose all materials provided to him by Crown Power. In Tracy, this Court stated the bright-line rule that “[a]ll materials given to a testifying expert must, if requested, be disclosed.” Id. In this case, Dr. Beisecker was not a “testifying expert” as defined by Rule 56.01(b)(4) because Crown Power never designated him as an expert to testify at trial. Dr. Beisecker’s limited role was to offer opinions at the hearing on Norfolk Railway’s motion for change of venue, which never occurred. Accordingly, the bright-line rule from Tracy that experts designated to testify at trial pursuant to Rule 56.01(b)(4) must produce all material given to them is not applicable to the facts of this case. Therefore, the holding of State ex rel. Tracy v. Dandurand, 30 S.W.3d 831 (Mo. banc 2000), that experts designated to testify at trial must produce all materials given to them if requested, is not modified.

Rule 56.01(b)(4)(a) states: “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing such expert’s name, address, occupation, place of employment and qualifications to give an opinion ...” (emphasis added). By its plain language, Rule 56.01(b)(4)(a) presupposes that a testifying expert is one who will testify at trial, not a consultant who may provide some testimony at a pretrial hearing that does not deal with the merits of the case. In this case, Dr. Beisecker was informally disclosed to opposing counsel as a witness to be called at the venue hearing. In Tracy, this Court made clear that when an expert is mistakenly given privileged documents, the attorney may withdraw the expert’s designation as a testifying expert prior to the deposition; then, “[t]he attorney can claim work product protection as to that retained expert, since the expert will not be called for trial.” Tracy at 835-36. Here, Crown Power never intended its jury consultant, Dr. Beisecker, be called at trial and has conceded that Dr. Beisecker will never be called at trial. Accordingly, Crown Power may claim work product protection of Dr. Beiseeker’s non-venue related materials.

Rules 56.01(b)(4) and (5) provide the rules of discovery for both retained and non-retained experts who are expected to testify at trial. These rules do not provide for the discovery of experts who are merely used as consultants or who may provide testimony at a non-merits pretrial hearing. With the proliferation of the use of expert testimony for a myriad of purposes, it may be wise to consider changes to existing rules, but such changes should be made through the appropriate process — not a court decision. It is important for attorneys and parties to be able to rely on this Court to follow the rules as written.

Norfolk Railway argues that the language of § 490.065.3 requires disclosure of facts or data when the expert is designated to testify at any hearing. “The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the healing .... ” Section 490.065.3 (emphasis added). However, § 490.065 deals with admissibility of expert testimony in civil actions; whereas, the issue in this case is discovery of privileged work product information held by an expert who is not designated to testify at trial. Tracy confirms that different standards apply regarding what is discoverable and what is admissible at trial. But, Rule 56.01 makes it clear the information sought in discovery must be reasonably calculated to lead to the discovery of admissible evidence. The only claimed need for further discovery of information given to Dr. Beisecker is to be prepared to cross-examine him, but he never testified, and he is not going to testify at trial.

Conclusion

The writ of prohibition is made absolute.

TEITELMAN, RUSSELL, and STITH, JJ., concur.

WOLFF, J., concurs in separate opinion filed.

TEITELMAN, concurs in opinion of WOLFF, J.

PRICE, C.J., dissents in separate opinion filed.

BRECKENRIDGE, J., concurs in opinion of PRICE, C.J.

MICHAEL A. WOLFF, J.,

concurring.

The present case — and three decades of observing and participating in expert witness discovery — prompts this question: Has the legal profession lost its mind?

The legal profession, the courts and the paying public are suffering the consequences of this Court’s 1974 promulgation of Rule 56.01(b)(4) authorizing expert witness discovery. Discovery — and discovery disputes about what is in the heads of retained experts — have driven the costs and misery of litigation to insufferable levels while providing little, if any, benefit in the preparation and trial of cases.

The principal opinion says it may be wise to consider changes to existing rules governing expert witness discovery. The dissenting opinion says the majority’s opinion announces an ‘unworkable’ rule. I agree with both sentiments, but I believe we should rethink the expert witness rule entirely.

The controversy over expert discovery in this case is a perfect illustration of how imperfect our system is. This lawsuit resulted from an earlier lawsuit in which Norfolk Southern Railway was found liable for damages arising from a March 2006 railroad crossing collision in Chariton County. After that judgment, Norfolk Southern sued Crown Power and Equipment in the present case, claiming that Crown Power was negligent in causing or contributing to cause the March 2006 railroad crossing accident. When the present case came to trial, Norfolk Southern, after its questioning of prospective jurors, moved for a change of venue on the ground that Chariton County jurors were biased against the railway. The trial court set a hearing on the venue motion; Crown Power designated Thomas Beisecker, Ph. D., whom Crown Power previously had consulted about jury selection matters, as an expert who would testify at the hearing.

This discovery dispute arises from Crown Power’s refusal to produce documents related to Dr. Beisecker’s jury selection consultation and its objection to deposition testimony regarding Dr. Bei-secker’s earlier work. The trial court overruled Crown Power’s motion to bar production of the documents and to protect the expert from further deposition testimony about his earlier work. I hasten to point out that nothing in this expert’s head, or the documents the expert used or prepared, has anything to do with the merits of the lawsuit between Norfolk Southern and Crown Power.

In this case, two very talented and able lawyers and their assistants have spent many hours bringing this dispute before the trial court judge, a few court of appeals judges and the seven judges of this Court. If the attorney for Norfolk Southern were to get everything he seeks, what does he get? He gets the documents the expert examined or prepared when consulted by his adversary about focus groups of persons who bear demographic similarities to those who might have served as jurors in the county where the trial originally was to be held. He also may get the opportunity to question Dr. Beisecker exhaustively in a deposition about whatever he might have learned or opined about this case.

I do not criticize the conduct of either attorney in this case. The attorney seeking the discovery here is following the professional norm in this state of trying mightily to find out everything an opposing party’s retained expert knows that is even remotely about the lawsuit, and the attorney resisting the discovery is doing his best to protect his sacred work product. The fact that our legal system encourages (or perhaps requires) these very talented professionals to spend their time engaged in this nonsense may be a sign of our civilization’s decline. But I digress.

The Vanishing Trial

Actually getting to the merits of a controversy and having a trial is becoming an increasingly remote possibility as modern trials evolve, in part because of the discovery provisions at issue here. The mind games that attorneys and expert witnesses play with one another may be amusing at times, but they are costly. In the federal court system, whose discovery this Court unfortunately emulates, only about 1.8 percent of cases survive to be tried. What aptly has been called “the vanishing trial” is caused in large part by the misery and expense of civil discovery.

Depositions of retained experts are the biggest waste of time and money in the system. They result in immodest fees to experts; a steady source of income for court reporters; and, for attorneys billing by the hour, a cushion of comfort our forebears in the legal profession hardly could have imagined.

I cannot recall a single instance in which the discovery deposition of an expert witness revealed anything of real value in a lawsuit. There probably are some instances in which discovery was useful, but the information surely could have been obtained by other, less costly means. Perhaps this observation means I have a bad memory, I have led a sheltered life or I am exaggerating. Even admitting to any of these personal failings, however, does not negate my point that the financial and emotional costs of expert witness discovery far outweigh its usefulness.

Moreover, as most experienced trial attorneys know, many experts welcome depositions — not just for the income they provide but also because they give the experts an opportunity to be educated about the adversary’s approach to cross-examination. The adversary, of course, pays for this education.

Repeal the Discovery Rule?

Is there a jurisdiction that has refused to succumb to the absurdity of all-out expert witness discovery? I am happy to report there is — Oregon, a sanctuary of sanity on a coast of the United States not renowned for sanity. Oregon has no rule allowing discovery as to retained experts. When an expert testifies, the adverse parties are given all the materials the expert has reviewed and an opportunity to study them in preparation for cross-examination. Imagine that.

No need actually to imagine; consider this from one observer who journeyed to Oregon:

In recent years, my consulting on corporate and securities law matters has carried me into law firm offices and courts in New York, Illinois, Alabama, Idaho, Alaska, Washington, Oregon and Hawaii. The highest level of professionalism and the greatest amount of civility I see among lawyers is in Oregon. And, guess what? Of all those jurisdictions, Oregon is [the] only one that has not adopted the Federal Rules of Civil Procedure.
... Oregon rules of civil procedure permit fewer opportunities to engage in “litigation within litigation.” I certainly know that to be true with respect to discovery.
Opposing counsel does not know who the opposing side’s expert is until the expert begins testimony. Upon completion of direct examination, opposing counsel receives the materials the expert reviewed with a long recess or lunch break to prepare cross examination. In many ways, it is a more efficient system. The cross examination is just as sharp and thorough as in other jurisdictions. A side effect is much more civility among members of the bar. The animosities that build up through protracted discovery, with motions to compel, argument over scheduling depositions, motions for sanctions, trials within trials, and the like seem less extreme, or nonexistent, in Oregon.

Perhaps this Court will ask one or more committees to study problems with expert witness discovery. I welcome this; there certainly is room for improvement. One overarching question should be asked: Will a committee studying expert witness discovery simply recommend rearranging the deck chairs on this Titanic? Or will a committee recommend that the Court sink the damned ship and start over?

I respect the fact that our Missouri imaginations may not be sufficient to embrace the complete abolition of expert witness discovery in civil cases as Oregon has accomplished by its stubborn refusal to join the ‘modern’ world of federal’ expert discovery. There is a problem with simply tinkering with the details of a flawed system, however: One definition of ‘insanity’ — a word I use to describe the current system — is doing the same thing over again and expecting different results.

If we cannot get our minds around a complete repeal of the expert witness discovery rule, let me propose instead a less drastic means of curtailing the blight of expert discovery. My proposed rule (1) would require a party who proposes to use a retained expert’s testimony at trial or other hearing to disclose in advance the name of the expert, the expert’s curriculum vitae, a list of materials the expert has reviewed, a summary of each of the expert’s opinions, and the expert’s fees; and (2) would allow parties by agreement — and only by agreement of all parties whose interests would be affected by expert testimony — to engage in any other discovery as to experts.

This modest compromise between our current insanity and the Oregon model would allow the expert’s opinions to be used in summary judgment proceedings. It also would allow attorneys to know the identity of retained experts so they could use the Internet and other available sources to examine the expert’s publications and activities that might bear fruit for cross-examination. Eliminating depositions will avoid parties essentially paying for their lawyers to educate their adversaries’ experts. It would promote civility among lawyers, a feature observed in the Oregon system. Most importantly, it would diminish greatly, if not eliminate, the needless waste of time and money involved in controversies such as the present one.

Tinkering with the details of the current rule will not help much, if at all. Abolishing the rule would be a great improvement, returning us to the pre-1974 era when lawyers had to use their wits and their ability to cooperate with their adversaries.

Some civil litigation has become more complex since 1974 when this Court adopted the rule permitting discovery of experts. If the complexity of modern litigation produces some felt need to have expert witness discovery, the Court should go no further than the rule proposed in this opinion, or the similar rule recently proposed by the Institute for the Advancement of the American Legal System and the American College of Trial Lawyers. To do otherwise, that is, to perpetuate the current system of expert witness depositions, is to continue a needless source of harm to our profession and the paying public.

Conclusion

I most heartily agree with the principal opinion that it may be wise to examine the expert witness discovery provisions. As to the outcome of the present controversy, I am indifferent. Either side of this discovery dispute can prevail; the fate of the parties’ lawsuit probably will be unaffected. And the fate of the republic likewise is unaffected.

Having said that, I believe that the dissenting opinion adheres more faithfully to the dysfunctional spirit of the present discovery rule. It would give the bench and bar a bright-line rule for discovery as to experts.

But the history and language of the rule tends to favor the result reached in the principal opinion. Before 1974, there was no rule for discovery of retained experts. The problem Rule 56.01(b)(4) appears to have solved is that experts came to trial and testified without the benefit of prior notice and opportunity for discovery. The rule that was adopted in 1974 solved that “problem” by allowing discovery, including deposition testimony, of an expert whom the other party “expects to call as an expert witness at trial.... ” The expert in this case was not expected to be called at trial, so he is not covered by the language of the rule. I therefore concur in the principal opinion.

WILLIAM RAY PRICE, JR., Chief Justice,

dissenting.

Because the majority abandons settled Missouri law and the theory behind it in favor of an unworkable rule, I dissent.

Missouri law regarding the discovery of experts was clearly set out in State ex rel. Tracy v. Dandurand, 30 S.W.3d 831 (Mo. banc 2000). This Court stated in unequivocal language: “All materials given to a testifying expert must, if requested, be disclosed. This is a ‘bright line’ rule ... It is clear, understandable, and does not require the application of a multi-prong test.” The Court provided the reasoning for its holding in the following words: “Rule 56.01(b)(4) should be read to require production of all the materials provided to the expert. To hold otherwise would allow the expert witness or the party retaining the expert to select which documents to produce after the expert has reviewed the documents in preparation for the expert’s testimony.”

Unlike a lay witness, an expert does not have his own knowledge of the facts of the case. “The documents, materials, and other information provided to him are the sources of the facts he knows.” While counsel may not force the other side’s expert to work for him, this Court stated that “it is appropriate ... to cross-examine an expert witness as to information provided to [him or her] that may contradict or weaken the basis for his or her opinion.” Tracy is unambiguous on this issue.

The majority’s interpretation is simply a gloss on the language of Rule 56.01(b)(4)(a) and (b). Rule 56.01(b)(4)(b), which governs depositions, provides that “a party may discover by deposition the facts and opinions to which an expert is expected to testify.” The majority attempts to limit this language, which is not limited itself, by reference to Rule 56.01(b)(4)(a). Rule 56.01(b)(4)(a), which governs interrogatories, states that “a party may through interrogatories require any other party to identify each person whom the other party expects to call as a witness at trial....” To reach its conclusion then, the majority grafts the “at trial” language from the paragraph governing interrogatories onto the one governing depositions. In doing so, the majority ignores the introductory language of 56.01(b)(4), which provides that the rule permits discovery of facts known and opinions held by experts that were “acquired or developed in anticipation of litigation or for trial.” Rule 56.01(b)(4) does not limit the application of subsections (a) and (b) to experts expected to be called only at trial.

The distinction intended by the rule is between consulting and testifying expert witnesses — not between pretrial and trial testifying expert witnesses. The reasoning supporting this distinction is simple and clear.

A consulting expert collaborates with counsel on trial strategy; the work product protection serves to incentivize and reward diligent trial preparation and free communication between counsel and his consultant. “A lawyer’s decisions about which people to use in confidence for which purposes in preparing a case ... are as central to lawyering strategy as one can get.”

Once counsel decides to have his expert present opinions to a fact finder, however, the privilege is waived. When “an attorney communicates opinion work product to an expert witness specifically intended to testify ... he unavoidably foresees the likelihood that those opinions will be communicated to the fact finder, through the expert.” Opposing counsel must know what information was provided to the expert to test the experts’ opinions. Because expert testimony usually focuses on subjects about which the fact finder knows little, and because the fact finder depends on the “efficacy of cross-examination of the expert’s testimony to point out any weaknesses,” the rule set out in Tracy preserves the integrity of the adversary system. It would be “manifestly unfair to allow a party to use the privilege to shield information which it had deliberately chosen to use offensively.”

The federal courts have held, as this Court did in Tracy, that opposing counsel is permitted the opportunity to “reveal [any] influence that counsel has achieved over the expert’s testimony.” And the federal courts have adopted a bright-line rule, as this Court did in Tracy, to enable effective cross-examination of expert witnesses and dispel any lingering uncertainty over the disclosure of documents divulged to a testifying expert.

What neither this Court nor any other jurisdiction has done is to recognize a “trial” on the merits as a temporal limitation for purposes of expert discovery. The time at which an expert witness testifies has nothing to do with whether he should be subject to cross-examination or the discovery process. The moment Crown decided to avail itself of the benefits of having its consulting expert testify, it waived the privilege over the materials it provided to him.

The majority’s attempt to split the baby invites a whole new world of “hide the ball” expert shenanigans. The new rule proposed today is an “invitation for abuse” that allows an attorney to “effectively construct the ... opinion testimony to support the attorney’s theory of the case, while blocking opposing counsel from learning of or exposing this influence.” The majority’s new interpretation permits only the expert and his counsel to know the entirety of the information provided and relied on and leaves the fox guarding the hen house.

The majority’s new interpretation also sets Rule 56.01(b)(4) in contradiction to section 490.065(3), RSMo 2000. The statute allows an expert opinion to be based on “facts or data ... made known to him at or before the hearing.” It recognizes no temporal distinction as to when the expert’s testimony is offered during the litigation process. To have a narrower rule for discovery than admissibility at trial simply makes no sense.

The reality of this case is that Crown made a mistake. It used the same expert witness to perform two functions — to provide focus group jury selection work and to give testimony regarding venue selection. What would have been protected work product was then waived and subject to discovery. In trying to help Crown out of its predicament, the majority creates an artificial distinction in Rule 56.01(b)(4) that opens the door to manipulation of the discovery process. This Court should leave the consequences of the mistake to the party who made it instead of gutting Missouri law governing expert discovery.

I respectfully dissent.

      . The dissenting opinion alleges the Court is "abandon[ing] settled Missouri law and the theory behind it in favor of an unworkable rule.” Yet, the entire dissenting opinion cites only one Missouri case decision, State ex rel. Tracy v. Dandurand, 30 S.W.3d 831 (Mo. banc 2000), which is thoroughly discussed. The dissenting opinion supports its logic by citing eight federal cases that, of course, have different expert witness rules. As for the claim of "unworkability,” it is not unworkable for the word ‘Trial” in the rules to mean "trial” because lawyers and judges know what that means.

      . The dissent’s suggestion at pages 5-6 that the Court is "trying to help Crown out of its predicament” is incorrect. The Court merely decides this case, the facts of which will likely never reoccur, by application of its rules as written. The well-reasoned opinion in Tracy dealing with Rule 56.01(b)(3), "Trial Preparation Materials,” remains fully intact.

      . References to statutes are to RSMo 2000, unless otherwise indicated.

      . The rule in Tracy, which requires the disclosure of all materials provided to an expert witness who was to testify at trial, preserves the integrity of the adversary system, because it enables effective cross-examination. In this case, it is undisputed that Dr. Beisecker is not going to be testifying at trial, so there is no cross-examination expected. Further, the information sought to be discovered concerns focus groups for juiy selections, which no one suggests will be admissible at trial. The dissent desires to compel discovery that is not reasonably calculated to lead to the discovery of admissible evidence. Rule 56.01(b).

      . Rule 56.01(b)(4) was amended in 1993 to specify what information must be disclosed about the expert. The current version provides:
      Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Rule 56.01(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
      (a) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing such expert's name, address, occupation, place of employment and qualifications to give an opinion, or if such information is available on the expert's curriculum vitae, such curriculum vitae may be attached to the interrogatory answers as a full response to such interrogatory, and to state the general nature of the subject matter on which the expert is expected to testify, and the expert's hourly deposition fee.
      (b) A party may discover by deposition the facts and opinions to which the expert is expected to testify. Unless manifest injustice would result, tire court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.

      . Crown Power in September 2008 withdrew its opposition to Norfolk’s motion for change of venue and acceded to Norfolk’s request to change venue from Chariton County to Sullivan County, the county that Norfolk's expert witness recommended. Crown Power urges that this renders Norfolk's venue motion moot, but the discovery dispute goes on and on until euthanized by this Court's writ.

      . Justice Antonin Scalia recently made a similar observation. See Debra Cassens Weiss, Scalia Worries Gifted Litigators Should Be Doing Something More Productive, ABA Journal, Oct. 1, 2009, available at http://www.abajournaI.com/weekly/scalia_worries_high_court_litigators_should_be_doing_something_ more_product (accessed Nov. 13, 2009).

      . Federal Rule 26 of Civil Procedure was amended in 1970 to include section (b)(4) governing expert discovery. Missouri followed suit shortly thereafter, and Rule 56.01 became effective January 1, 1975. Rule 56.01(b)(4) was the first Missouri rule specifically discussing experts. Joseph J. Simeone and John P. Walsh, The New Missouri Rules on Civil Discovery, J. Mo. B. 463, 465 (Nov.Dec. 1974).

      . Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 462-63 (2004), cited in Roger L. Goldman, Why Law Students Should. Take the Federal Courts Course, 53 St. Louis U.L.J. 745, 759 (Spring 2009).
      Federal Rule 26(b)(4) is more elaborate than Missouri’s rule for expert witness discovery, Rule 56.01(b)(4). This difference reflects the managerial role the federal rules have created for federal trial judges. This is another illustration of the general proposition that just because something is in the Federal Rules of Civil Procedure does not necessarily mean it is good.

      . See Galanter at 517 ("[Gjoing to trial has become more costly as litigation has become more technical, complex, and expensive. Rising costs of increasingly specialized lawyers, the need to deploy expensive experts, jury consultants, and all associated expenses have priced some parties out of the market.”). See also Final Report, 2009 American College of Trial Lawyers and the Institute for the Advancement of the American Legal System (University of Denver) 3 (revised April 15, 2009), available at http://www.du.edu/legalinstitute/ publications.html (accessed Nov. 13, 2009) (“Trials, especially jury trials, are vital to fostering the respect of the public in the civil justice system. Trials do not represent a. failure of the system. They are the cornerstone of the civil justice system. Unfortunately, because of expense and delay, both civil bench trials and civil jury trials are disappearing.”) (emphasis in original); James F. Henry, The Courts at a Crossroads: A Consumer Perspective of the Judicial System, 95 Geo L.J. 945 (2007); Lawrence M. Friedman, The Day Before Trials Vanished, 1 J. Empirical Legal Stud. 689 (2004).

      . Colorado has tried to reduce the harsh effects of modern day discovery in adopting a “simplified procedure” that applies to civil cases involving claims of less than $100,000. C.R.C.P. 16.1. In addressing depositions, simplified procedure permits depositions only to preserve testimony for use at trial or to obtain and authenticate documents. Any witness who has been deposed may not be offered as a witness to present live testimony at trial by the party taking the depositions, and any party may offer admissible portions of the witness’ depositions, without a showing of unavailability. C.R.C.P. 16.1(k)(4) (C.R.C.P. 26 also requires that experts be disclosed, including the name of the expert and a written report that includes all opinions to be expressed by the expert and the basis and reasons therefore, among other things).
      Simplified procedure was piloted in six counties between July 2004 and May 2005. The average cost of a case was $1,230 under the simplified procedure compared with an average total cost of $2,212 for a case using traditional procedures. Civil Justice Reform Summit, 2007 Institute for the Advancement of the American Legal system (University of Denver) 13-14. The Institute's report is available on its Web site at http://www.du.edu/ legalinstitute/publications2007.html (accessed Nov. 13, 2009).

      . Civil Justice Reform Summit at 11 (quoting Stevens v. Czerniak, 336 Or. 392, 84 P.3d 140, 147 (2004)). Although Oregon rules do not provide for expert witness discovery, they also do not prohibit the parties from agreeing to exchange information or do whatever the parties agree is needed to prepare a case.

      . Civil Justice Reform Summit at 11-12 (quoting Douglas M. Branson, No Contest: Corporate Lawyers and the Perversion of Justice in America, 48 Case W. Res. L.Rev. 459, 472-73 (1998)).

      . I used the word "damned” not as an epithet but rather in its Webster’s Dictionary sense of "doomed,” albeit not necessarily to eternal punishment ... although some expert witness depositions do seem likely to last for an eternity.

      . The time would be a specified number of days (30, 60, 90, whatever) before the date set for a trial or hearing, with a provision for the trial court to shorten or expand the time, if a party shows cause for a shorter or longer time, or for the parties to agree to the time other than that specified in the rule. The proposed rale perhaps also should require the party providing the information to update the disclosure if there is any change in the expert's opinion or its bases and would require a time limit for any such changes. The expert’s testimony would be limited strictly to those opinions set forth in the pre-trial disclosure.

      .This is a modification of Missouri’s current Rule 56.01(b)(4). My proposed rule would require a list of the materials the expert has reviewed (which would be discoverable) and a summary of each of the expert's opinions, rather than the current rale’s provision for merely "the general nature of the subject matter on which the expert is expected to testify." The current rule contemplates further discovery by deposition; my proposed rule emphatically does not, unless the parties agree.

      .This is somewhat similar to the recommendations as to expert witnesses set forth in Final Report, 2009 American College of Trial Lawyers and the Institute for the Advancement of the American Legal System, at 17 which states:
      Experts should be required to furnish a written report setting forth their opinions, and the reasons for them, and their trial testimony should be strictly limited to the contents of their report. Except in extraordinary cases, only one expert witness per party should be permitted for any given issue.
      The federal rules and many state rules require written expert reports and we urge that the requirement should be followed by all courts. The requirement of an expert report from an expert should obviate the need for a deposition in most cases. In fact, some Task Force members believe that it should obviate altogether the need for a deposition of experts.

      (Emphasis added because I agree with these well-informed task force members).
      The recommendations in the Final Report now have been published as proposed rules. The "Pilot Project Rules” include this proposed rule on discovery of retained experts:
      Each expert must furnish a written report setting forth his or her opinions, and the reasons for them, and the expert's direct testimony will be strictly limited to the contents of the report. There must be no additional discovery of expert witnesses except as provided in the initial pretrial order.
      The rule also would allow each party only one expert witness for any given issue, except in extraordinary cases. 21st Century Civil Justice System: A Roadmap for Reform: Pilot Project Rules, 2009 American College of Trial Lawyers and the Institute for the Advancement of the American Legal System (University of Denver) 7.

      . The proposed rule might provide simply that information disclosed as to the expert would be treated as being under oath for the purpose of summary judgment under Rule 74.04.

      . So far as I know, no Missouri court has accepted the invitation to hold a "Daubert" hearing such as those in federal trial courts in which the validity of expert testimony is evaluated in hearings that may last for days. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). That, I hope, is because Missouri lawyers and judges realize that § 490.065, RSMo 2000, differs from the expert provisions of the Federal Rules of Evidence and does not make the judge a gatekeeper of the validity of expert testimony. The criterion that the statute provides in civil cases is limited to the question of whether the facts and data on which an expert relies are those reasonably relied on by experts in the relevant field. See also State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 149 (Mo. banc 2003), and McDonagh, 123 S.W.3d at 160 (Wolff, L, concurring).

      . The expert witness rule proposed by the Institute for the Advancement of the American Legal System and the American College of Trial Lawyers is quoted in footnote 13.

      . Tracy v. Dandurand, 30 S.W.3d at 835.

      . Id.

      . Friedenthal, Discovery and Use of an Adverse Party’s Expert Information, 14 Stan.L.Rev. 455, 482 (1962).

      . Tracy, 30 S.W.3d at 834; Heitmann v. Concrete Pipe Machinery, 98 F.R.D. 740, 742 (E.D.Mo.1983).

      . Id.; John Doe v. U.S., 350 F.3d 299, 302 (2nd Cir.2003); Heitmann, 98 F.R.D. at 742 (holding that even when a report was prepared by a non-testifying expert, it was subject to discovery when it was needed for effective cross-examination of a testifying expert who relied on it in reaching his opinion).

      . The majority opinion is internally inconsistent. Because Beisecker was never designated to testify at trial, not only his supposedly unrelated work but his entire file should have been protected from disclosure. Yet the majority specifically sanctions discovery of Bei-secker's venue-related work.

      . Rule 56.01(b)(4). Emphasis added.

      . Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir.1984); Employees Committed for Justice v. Eastman Kodak Company, 251 F.R.D. 101, 104 (W.D.N.Y.2008) (holding that materials used by experts retained as litigation consultants are privileged and immune from disclosure).

      . In re Pizza Time Theatre Securities Litigation, 113 F.R.D. 94, 98 (N.D.Cal.1986) (stating that a non-testifying expert is a "unique repository of insights into counsel's opinion work product”).

      . Musselman v. Phillips, 176 F.R.D. 194, 199 (D.Md.1997).

      . Id.

      . CP Kelco U.S. Inc. v. Pharmacia Corp., 213 F.R.D. 176, 178-79 (D.Del.2003).

      . Musselman, 176 F.R.D. at 198.

      . Karn v. Rand, 168 F.R.D. 633, 639-40 (N.D.Ind.1996).

      . See Employees Committed for Justice, 251 F.R.D. at 104 (holding that “when an expert alternately dons and doffs the 'privileged hat' of a litigation consultant and the ‘non-privilege hat’ hat of a testifying witness” the materials he uses to form his opinion testimony are discoverable).

      . Musselman, 176 F.R.D. at 199.


author: PER CURIAM:

text:
    Clarence S. WILSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 69254.
    Missouri Court of Appeals, Western District.
    Feb. 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.
    Stephen M. Patton, Kansas City, MO, for appellant.
    Shaun Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent.
    Before ALOK AHUJA, P.J., JAMES M. SMART, JR., and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM:

Clarence Wilson appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Determining that the motion court did not clearly err in denying the motion, we affirm the judgment. Rule 84.16(b).


text:
    Rickey E. FERDINAND, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71012.
    Missouri Court of Appeals, Western District.
    Feb. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.
    Rickey Ferdinand, Jefferson City, MO, Appellant Acting pro se.
    Chris Koster, Jayne T. Woods, Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., LISA WHITE HARDWICK, and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM:

Mr. Rickey E. Ferdinand appeals the order denying the motion to reopen his Rule 29.15 post-conviction proceeding. Mr. Ferdinand challenges the motion court’s ruling that the post-conviction relief counsel’s untimely filing of the amended motion did not prejudice him.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).