Kristine Hill and Dennis Hill, Relators v. Honorable Stanley J. Wallach

In the Missouri Court of Appeals

Eastern District

WRIT DIVISION ONE

KRISTINE HILL AND DENNIS HILL, ) ED110232

)

Relators, ) Appeal from the Circuit Court of

) St. Louis County

v. ) 19SL-CC02746

)

HONORABLE STANLEY J. WALLACH, ) Honorable Stanley J. Wallach

)

Respondent. ) Filed: April 19, 2022

INTRODUCTION

Kristine Hill and Dennis Hill (Relators) filed a Petition for Writ of Prohibition with this

Court, seeking to prohibit enforcement of the December 8, 2021 Order (Order) by Judge Stanley

J. Wallach (Respondent). The Order granted a Motion to Compel filed by Mercy Rehabilitation

Hospital – St. Louis, LLC (Mercy) in the action of Kristine Hill and Dennis Hill v. Mercy

Rehabilitation Hospital – St. Louis, LLC, et al., pending in the Circuit Court of St. Louis County,

Case No. 19SL-CC02746.

The Order required Relators, the plaintiffs in the underlying case, to produce all

documents regarding counsel’s settlement negotiations and release (settlement documents) from

an automobile accident involving Ms. Hill that occurred after the incident giving rise to the

pending litigation. Relators contend the settlement documents are protected work product and

Mercy made no showing pursuant to Rule 56.01(b)(5) 1 that it had a substantial need to discover

them, or that any probative value of those materials outweighed the highly sensitive and likely

prejudicial nature of an attorney’s settlement negotiations and the resulting settlement agreement.

We previously issued a Preliminary Order in Prohibition. Respondent filed an answer and

suggestions in opposition. In the interest of justice, we dispense with further briefing and oral

argument pursuant to Rule 84.24(i). The Preliminary Order in Prohibition is made permanent.

BACKGROUND

On July 9, 2019, Relators filed a lawsuit against defendants Mercy and Stryker

Corporation (Stryker), alleging, inter alia, that Mercy was negligent in failing to properly

inspect, maintain or fix the hospital bed that malfunctioned and collapsed on Ms. Hill causing

her severe back and spine injuries while she was a patient at Mercy on July 10, 2017. 2 On

January 18, 2018, Ms. Hill was in a car accident that exacerbated her back pain. She settled her

claim against the at-fault driver for a monetary payment subject to a confidentiality provision.

Consequently, Mercy filed an affirmative defense for a reduction of the amount of any settlement

from any other tortfeasor under Section 537.060, RSMo. 3

On May 24, 2021, Mercy sought the following discovery:

RFP 1: . . . all non-privileged communications, letters, messages, emails or

documents of any kind related to any claim or suit Mr. or Ms. Hill made or filed

related to the motor vehicle accident that occurred on January 18, 2018, involving

Kristine Hill.

RFP 2: . . . all non-privileged communications, letters, messages, emails or

documents of any kind related to any claim or suit Mr. or Ms. Hill made or filed

related to the motor vehicle accident that occurred on January 18, 2018, and any

settlement of said claim/suit.

1

All rule references are to the Missouri Supreme Court Rules (2020), unless otherwise indicated.

2

Mr. Hill alleges loss of consortium.

3

Both Mercy and Relators refer to this defense as “setoff” in their briefs, which is incorrect because Section 537.060

provides an affirmative defense of reduction, and should be referred to as such. See Sanders v. Ahmed, 364 S.W.3d

195, 201 n.2 (Mo. banc 2012). All statutory references are to RSMo. (2016), unless otherwise indicated.

2

Relators objected that the requests were overbroad, premature, duplicative, and sought

information protected by the work product doctrine. Relators produced a privilege log as

evidence to support their claim that the settlement documents were work product. During Ms.

Hill’s deposition, Relators’ counsel made a record that the settlement release of the auto claim

was subject to a confidentiality provision.

Relators produced all non-privileged documents related to the auto accident, including

the fire department accident report, EMS report, as well as all medical and treatment records in

their possession. Ms. Hill also executed every requested medical authorization, releasing all of

her medical and mental health records to the defendants.

On October 20, 2021, Mercy filed its motion to compel production of the settlement

documents possessed by Relators’ counsel. Mercy argued that during her deposition, Ms. Hill

could not recall what part(s) of her body she claimed were injured in her 2018 car accident and

testified she “did not know” if her back was injured in the accident. Mercy further asserted that

Relators’ counsel’s correspondence with third parties (the other driver’s counsel or insurer) was

not protected work product because these documents were prepared in avoidance – rather than in

anticipation – of litigation. Mercy also claimed the settlement documents were necessary to

properly plead and prove the existence of the settlement, including the precise amount of the

settlement, in order to obtain the reduction or credit as an affirmative defense permitted by

Section 537.060.

In their response, Relators argued that Ms. Hill already provided all the relevant and

discoverable facts and records about the accident and settlement. While Relators agreed Mercy

may be entitled to discover the amount of the settlement for the purpose of a reduction, they

merely disagreed on when they were required to disclose the information. Relators asserted that

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Mercy was only entitled to the discovery if a monetary judgment is entered in their favor because

that is when Mercy’s reduction would be applied by the trial court pursuant to Section 537.060.

In reply, Mercy claimed Ms. Hill’s medical records demonstrated a consistent

improvement in her condition following the July 2017 hospital bed incident but then worsened

following the January 2018 accident. Specifically, Mercy asserted that certain injuries, such as

urinary dysfunction or immobility, became permanent; thus rendering her medical records and

settlement documents in that case relevant and admissible at trial here.

On December 8, 2021, Respondent granted Mercy’s motion to compel Relators to

produce the confidential settlement release and settlement negotiations from the January 2018

automobile accident claim. Relators filed their Petition for Writ of Prohibition, arguing that an

attorney’s settlement documents are protected work product and Mercy made no showing of a

substantial need for them. This Court issued a Preliminary Order in Prohibition. Respondent’s

Answer and Suggestions in Opposition claimed the settlement documents were discoverable

because they were relevant to the issues of causation and damages, and they were not protected

work product, thus Respondent was not required to establish a “substantial need” pursuant to

Rule 56.01(b)(5).

DISCUSSION

Relators sought to prohibit enforcement of the entire December 8, 2021 Order compelling

discovery; however, the only arguments presented here address Relators’ counsel’s settlement

negotiation communications with the claims agent for the automobile injury claim, and the

settlement release itself.

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Standard of Review

Prohibition is a discretionary writ that is limited to “fairly rare” situations; it only issues

to prevent an abuse of judicial discretion, to prevent exercise of extra-jurisdictional power, or to

avoid irreparable harm to a party, or there is an issue of law that will likely escape review on

appeal and cause considerable hardship or expense to the aggrieved party. State ex rel. Helms v.

Rathert, 624 S.W.3d 159, 163 (Mo. banc 2021) (quoting State ex rel. Schwarz Pharma, Inc. v.

Dowd, 432 S.W.3d 764, 768 (Mo. banc 2014)); see also State ex rel. Rosenberg v. Jarrett, 233

S.W.3d 757, 760 (Mo. App. W.D. 2007) (citing State ex rel. Riverside Joint Venture v. Mo.

Gaming Comm’n, 969 S.W.2d 218, 221 (Mo. banc 1998)).

Prohibition is particularly appropriate where the trial court orders “production of work

product when there has been no showing, as required by Rule 56.01(b)[(5)] ‘that a party seeking

discovery has substantial need of the materials in the preparation of his case and that he is unable

without undue hardship to obtain the substantial equivalent of the material by other means.’”

State ex rel. Mitchell Humphrey & Co. v. Provaznik, 854 S.W.2d 810, 812 (Mo. App. E.D. 1993)

(quoting Enke v. Anderson, 733 S.W.2d 462, 465 (Mo. App. S.D. 1987)).

Analysis

The crux of the issue before this Court is the discoverability of settlement documents

from Ms. Hill’s 2018 car accident in this action for her injuries resulting from the 2017 hospital

bed incident. The question is whether the settlement documents are protected work product.

Admissibility and Privilege

Our analysis of the discoverability of the settlement documents at issue here begins with

the fundamental evidentiary rule in Missouri and other jurisdictions that “evidence of settlement

agreements is not admissible.” Mengwasser v. Anthony Kempker Trucking, Inc., 312 S.W.3d

5

368, 376 (Mo. App. W.D. 2010). “This is because settlement agreements tend to be highly

prejudicial and, thus, should be kept from the jury unless a clear and cogent reason exists for

admitting a particular settlement agreement.” Id.

“Claims of privilege present an exception to the general rules of evidence which provide

that all evidence, material, relevant and competent to a judicial proceeding shall be revealed if

called for. As such, they are carefully scrutinized.” State ex rel. Dixon Oaks Health Ctr., Inc. v.

Long, 929 S.W.2d 226, 229 (Mo. App. S.D. 1996) (quoting State v. Beatty, 770 S.W.2d 387, 391

(Mo. App. S.D. 1989)). One such exception is the attorney-client privilege, which protects

confidential communications between an attorney and the client. See State ex rel. Kilroy Was

Here, LLC v. Moriarty, 633 S.W.3d 406, 413 (Mo. App. E.D. 2021). “[The Missouri Supreme

Court] has spoken clearly of the sanctity of the attorney-client privilege,” and the need to

eliminate any interference with it:

. . . . The relationship and the continued existence of the giving of legal advice by

persons accurately and effectively trained in the law is of greater societal value . .

. than the admissibility of a given piece of evidence in a particular lawsuit.

Contrary to the implied assertions of the evidence authorities, the heavens will not

fall if all relevant and competent evidence cannot be admitted.

State ex rel. Peabody Coal v. Clark, 863 S.W.2d 604, 607 (Mo. banc 1993) (citing State ex rel.

Great American Ins. Co. v. Smith, 574 S.W.2d 379, 383 (Mo. banc 1978)).

Similarly, Missouri courts generally protect both tangible and intangible work product

because the failure to do so would likely have a chilling effect on the cause of justice:

. . . . Were such [work product] materials open to opposing counsel on mere

demand, much of what is now put down in writing would remain unwritten. An

attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency,

unfairness and sharp practices would inevitably develop in the giving of legal

advice and in the preparation of cases for trial. The effect on the legal profession

would be demoralizing. And the interests of the clients and the cause of justice

would be poorly served.

6

State ex rel. Rogers v. Cohen, 262 S.W.3d 648, 651 (Mo. banc 2008) (citing Hickman v. Taylor,

329 U.S. 495, 510-11 (1947)). The privilege “precludes an opposing party from discovering

materials created or commissioned by counsel in preparation for possible litigation.” State ex

rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004); 4 see also Kilroy Was

Here, 633 S.W.3d at 414. Intangible work product consists of an attorney’s mental impressions,

conclusions, opinions, and legal theories. Westbrooke, 151 S.W.3d at 367. Intangible work

product has complete immunity from discovery. See id. (citing State ex rel. Atchison, Topeka &

Santa Fe Ry. Co. v. O’Malley, 898 S.W.2d 550, 552-53 (Mo. banc 1995)); Rule 56.01(b)(5) (“. . .

the court shall protect against disclosure of the mental impressions, conclusions, opinions, or

legal theories of an attorney or other representative of a party concerning the litigation.”)

(emphasis added). Tangible work product consists of trial preparation documents such as written

statements, briefs, and attorney memoranda, which may be discoverable pursuant to Rule

56.01(b)(5). Westbrooke, 151 S.W.3d at 367.

Thus, Missouri law affords complete protection to both attorney-client communications

and intangible work product for compelling policy reasons. However, tangible work product is a

qualified immunity that, although subject to the same policy considerations, may still be

discoverable in certain, limited circumstances.

Discoverability and Privilege

Rule 56.01(b)(5) codifies the tangible work product exception to discovery. Westbrooke,

151 S.W.3d at 367. An analysis of Rule 56.01 must begin with the oft-repeated maxim that

“[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the

4

The terms “work product doctrine” and “work product privilege” have been used interchangeably. See State ex

rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 n.4 (Mo. banc 2004). For purposes of this opinion, we

utilize the term “privilege.”

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subject matter involved in the pending action . . . .” Id. at 366 (emphasis added); Rule

56.01(b)(1). The party seeking the discovery first bears the burden of establishing that the

information is relevant or at least “appears reasonably calculated to lead to the discovery of

admissible evidence.” Rule 56.01(b)(1).

However, even if relevant, Rule 56.01(b)(5) mandates that tangible work product is not

discoverable absent a showing that the party seeking discovery has (1) a substantial need of the

documents to prepare their case, and (2) is unable, without undue hardship, to obtain the

substantial equivalent by other means. Rule 56.01(b)(5); see Westbrooke, 151 S.W.3d at 366;

State ex rel. Shelter Mut. Ins. Co. v. Wagner, 575 S.W.3d 476, 484 (Mo. App. W.D. 2018).

In response to the party seeking to discover tangible work product pursuant to Rule

56.01(b)(5), the party opposing the discovery and asserting privilege bears the burden of

showing that the privilege applies. Kilroy Was Here, 633 S.W.3d at 414. Blanket assertions of

work product are insufficient to invoke protection. Id. (citing State ex rel. Faith Hosp. v.

Enright, 706 S.W.2d 852, 856 (Mo. banc 1986)). To properly invoke the work product privilege,

the party opposing discovery must establish via competent evidence that the materials sought to

be protected (1) are documents or tangible things, (2) were prepared in anticipation of litigation

or for trial, and (3) were prepared by or for a party or a representative of that party. Westbrooke,

151 S.W.3d at 367. “Competent evidence” includes privilege logs and affidavits from counsel.

Id.; Kilroy Was Here, 633 S.W.3d at 415.

Application of the Tangible Work Product Privilege

In sum, the party seeking to discover tangible work product must establish both relevance

pursuant to Rule 56.01(b)(1) and that the party has substantial need of the materials and cannot,

without undue hardship, obtain the substantial equivalent of the materials by other means

8

pursuant to Rule 56.01(b)(5). Westbrooke, 151 S.W.3d at 368. The party opposing the

discovery and asserting privilege then bears the burden of showing through competent evidence

that the privilege applies in that the materials sought to be protected (1) are documents or

tangible things, (2) were prepared in anticipation of litigation or for trial, and (3) were prepared

by or for a party or a representative of that party. Id. at 367.

Here, we are dubious that Mercy met its burden to show that the January 2018 auto

accident settlement documents were relevant pursuant to Rule 56.01(b)(1), especially in light of

the medical records voluntarily produced. Mercy argues the settlement documents are relevant

to prove its affirmative defense of reduction pursuant to Section 537.060, citing Sanders v.

Ahmed, 364 S.W.3d 195, 211-14 (Mo. banc 2012). In Sanders, the Missouri Supreme Court

decided it was error for the trial court to deny the defendants a reduction pursuant to Section

537.060. Id. In so holding, the court determined that to properly assert the affirmative defense

of reduction, the defendants had the burden to plead and prove (1) the existence and applicability

of the settlement, and (2) the amount paid by the settling tortfeasors. Id. at 213. In the absence

of a work product claim, the trial court had no discretion to deny discovery of the terms of a

settlement agreement, the proof of which was crucial to the defendants’ affirmative defense of

reduction. Id.

In this matter, Mercy sought not only the terms of Ms. Hill’s settlement of the 2018 auto

accident, but also Relators’ counsel’s communications with the driver’s insurer in negotiating the

settlement and the settlement release itself. Such a discovery request clearly exceeds the

materials sought in Sanders. Moreover, Relators stipulated that the settlement was for the 2018

auto accident’s exacerbation of injuries that Ms. Hill initially sustained in the 2017 hospital bed

incident, thereby establishing the existence and applicability of the settlement agreement.

9

Relators similarly offered to stipulate to the amount paid under the settlement agreement post-

trial, as occurred in Sanders. These stipulations would allow Mercy to prove its affirmative

defense of reduction pursuant to Section 537.060.

Once the two requirements for Mercy’s affirmative defense of reduction were met as

mandated by Sanders, we discern no further relevance for Mercy to discover the settlement

documents. Mercy further argues the settlement documents could lead to the discovery of

admissible evidence on the issue of causation, and cites State ex rel. BNSF Ry. Co. v. Neill, 356

S.W.3d 169, 171 (Mo. banc 2011), for the proposition that even though the settlement documents

related to the January 2018 accident may not be admissible evidence at trial, they are

discoverable. There, the Missouri Supreme Court allowed discovery of inadmissible documents

because the defendant had demonstrated a sufficient likelihood that the records would contain

information relevant to the issue of causation. Id. at 174-75.

We find Neill distinguishable for multiple reasons. Most important here, Neill is

inapposite because Mercy did not demonstrate a sufficient likelihood that the settlement

documents would contain specific relevant information. Moreover, Neill warns against

permitting parties to “engage in a fishing expedition in otherwise privileged records in the hope

that they might contain relevant information,” as Mercy does here in the form of hypothetical

admissions that might exist in the settlement documents. Id. at 175. Mercy has failed to

demonstrate how the settlement documents would provide facts and admissions regarding the

2018 auto accident and Ms. Hill’s back condition which would not be duplicative of information

already found in her medical records.

But even if Mercy met its burden to establish the relevance of the settlement documents

because they might somehow demonstrate causation or permanency of her injuries due to the

10

2018 auto accident rather than by the initial 2017 hospital bed incident, Mercy did not meet the

burden imposed by Rule 56.01(b)(5). Mercy did not establish its substantial need of the

materials and that it could not, without undue hardship, obtain the substantial equivalent of the

materials by other means in order to compel the production of the documents at issue.

Westbrooke, 151 S.W.3d at 368.

Mercy argued that Ms. Hill objected to questions premised on confidentiality during her

deposition regarding her injuries from the car accident and thus, it could not obtain all the

necessary facts and admissions. We are not persuaded the deposition alone meets Mercy’s

burden because Relators provided the relevant facts regarding the 2018 auto accident and fully

disclosed all the treatment she received for her injuries. The disclosures defeat Mercy’s

argument that it had a substantial need for the settlement documents as mandated by Rule

56.01(b)(5). Moreover, these disclosures are the “substantial equivalent” of the requested

settlement documents because they provided Mercy the ability to contest the causation of Ms.

Hill’s injuries from the 2017 hospital bed incident.

More importantly, Relators, as the party opposing the discovery and asserting the work

product privilege, met their burden of showing through competent evidence that the work

product privilege applies to the settlement documents because they (1) are documents or tangible

things, (2) were prepared in anticipation of litigation or for trial, and (3) were prepared by or for

a party or a representative of that party. The settlement documents claimed in Relators’ privilege

log were subject to the work product privilege because the settlement negotiations and release

were “prepared in anticipation of litigation or for trial.” Westbrooke, 151 S.W.3d at 367. The

purpose of the settlement negotiations is not the question; rather, the test for work product is

whether “in the light of the nature of the document and the factual situation in the particular case,

11

the document can fairly be said to have been prepared or obtained because of the prospect of

litigation.” State ex rel. Day v. Patterson, 773 S.W.2d 224, 228 (Mo. App. E.D. 1989).

The record before us supports Relator’s assertion that the settlement documents were

prepared with the anticipation of trial if it was not resolved. These documents can fairly be said

to have been prepared or obtained in anticipation of litigation, which includes avoiding a trial in

favor of settlement. Moreover, the settlement documents were prepared by or for Relators and

their representative, Relators’ counsel. Accordingly, the settlement documents are not

discoverable because (1) Relators met their burden to show the settlement documents were

tangible work product; and (2) Mercy failed to meet its burden to show “substantial need” and

“undue hardship” as required by Rule 56.01(b)(5).

Waiver and Privilege

Despite the absolute nature of attorney-client privilege and intangible work-product

privilege, and the quasi-immunity granted to tangible work product, any of these protections may

be lost by waiver. “[W]ork product immunity, as any other, may be relinquished by voluntary

disclosure of the protected information.” Mitchell Humphrey & Co., 854 S.W.3d at 813. The

party seeking discovery has the burden “. . . to establish that the materials’ work product status

has been lost by prior disclosure without an accompanying protective order or confidentiality

agreement . . . .” Westbrooke, 151 S.W.3d at 368 (emphasis added). However, a disclosure

made in trial preparation and that is “not inconsistent with maintaining secrecy against

opponents[] should be allowed without waiver of the [work product immunity].” See Mitchell

Humphrey & Co., 854 S.W.2d at 813; see also Edwards v. Missouri State Bd. of Chiropractic

Examiners, 85 S.W.3d 10, 27 (Mo. App. W.D. 2002) (attorney’s communication with a fact

witness and her attorney regarding instant litigation did not constitute a waiver).

12

However, Mercy attempts to rely on Westbrooke to claim the work product privilege was

lost because of the communications and correspondence between Relators’ counsel and the

driver’s insurance company. But Mercy ignores the confidential settlement agreement, which

Westbrooke deemed a critical fact. The court held that work product may become discoverable if

the party seeking it establishes “that the materials’ work product status has been lost by prior

disclosure without an accompanying protective order or confidentiality agreement. . .”

Westbrooke, 151 S.W.3d at 368 (emphasis added). Moreover, there is no waiver when the

disclosure is made during trial preparation and is “not inconsistent with maintaining secrecy

against opponents.” Mitchell Humphrey & Co., 854 S.W.2d at 813; see also Edwards, 85

S.W.3d at 27. As this writ proceeding demonstrates, Relators’ counsel’s disclosures were made

in negotiating the settlement documents with the driver’s insurance company, and those

settlement documents ultimately contained a confidentiality agreement that was intended to

maintain secrecy with respect to outside parties such as Mercy. Therefore, Mercy did not

establish that disclosure of Relators’ work product to the settling insurer constituted a waiver of

the work product privilege.

CONCLUSION

Based on the foregoing analysis, and in consideration of the detrimental chilling effects

that this order compelling discovery of settlement documents would have on not only Relators in

this matter but on any party in the litigation process, we find the trial court abused its discretion.

We are obliged to act in prohibition to prevent an irreparable harm that cannot be addressed on

appeal as it is undisputed the documents themselves are inadmissible at trial.

13

The Preliminary Order in Prohibition is made permanent. The trial court is directed to

vacate the order of December 8, 2021, ordering Relators to produce settlement negotiation

communications and the settlement release related to the January 2018 auto accident.

____________________________________

Lisa P. Page, Presiding Judge

Colleen Dolan, J. and

Kelly C. Broniec, J., concur.

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