Section 14.9 “At-Issue” Waiver

• Library: Evidence 2017

A. (§14.9) “At-Issue” Waiver

Missouri courts have found waivers to exist in a number of circumstances, and the “at-issue” waiver is prominent among them. The at-issue waiver has been described as occurring “‘when the privilege holder makes assertions in a litigation context that put its otherwise privileged communications in issue.’” State ex rel. St. John’s Reg’l Med. Ctr. v. Dally, 90 S.W.3d 209, 215 (Mo. App. S.D. 2002) (quoting Resolution Trust Corp. v. Mass. Mut. Life Ins. Co., 200 F.R.D. 183, 191 (W.D.N.Y. 2001)).

Various acts have been held by the Missouri courts to amount to a waiver: plaintiff’s own testimony about the condition, the treatment and what the doctors advised, or calling one of his doctors to testify in his behalf . . . . In malpractice cases...