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Discovery and Experts in Family Law Following Barrick

July 17, 2014

Discovery and Experts in Family Law Following Barrick

by Anthony Hoover
Published in The Legal Intellegencer on July 8, 2014

Although limited by the Pennsylvania Rules of Civil Procedure in custody, “simple” support actions and protection from abuse actions, formal discovery has become a mainstay in family law. Additionally, the variety of a party’s potential assets, compensation and medical and mental health issues have necessitated the use of experts in almost every aspect of family law. The intersection of discovery and the use of experts was clarified in the recent Pennsylvania Supreme Court holding in Barrick v. Holy Spirit Hospital of Sisters of Christian Charity, 76 MAP 2012 (Pa. Apr. 29, 2014).

Barrick involved a personal injury action where Carl Barrick suffered injuries when a chair collapsed in the cafeteria of defendant Holy Spirit Hospital and Sodexho Management. Carl and Brenda Barrick filed suit. Following the initiation of the suit, the defendant filed a subpoena to obtain the records of Dr. Thomas Green, the plaintiff’s orthopedic surgeon. Green disclosed some of the records, but on advice of plaintiffs counsel withheld other records. The records were not disclosed because they were created for a purpose other than treatment.

The defendant filed a motion to enforce the subpoena, and Barrick objected, asserting that Green was his expert witness and such documentation was protected. Barrick contended that all communications between plaintiffs counsel and Green constituted privileged material pursuant to Pennsylvania Rule of Civil Procedure 4003.3. The trial court ruled in favor of the defendants; however, the Pennsylvania Superior Court reversed the trial court and held that the defendants were not entitled to obtain through discovery the communications between the plaintiff’s attorney and the plaintiff’s expert. The defendants appealed the decision to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court, in an evenly decided, 3-3 decision, affirmed the decision of the Superior Court by creating a bright-line rule that a party is not permitted to seek through discovery the communications between an attorney and his or her expert. The court issued two opinions, one in support of affirmance and one in support of reversal, each joined by three justices. Since the Supreme Court was evenly divided, the result was an affirmance of the lower court decision. Both Supreme Court opinions balanced two competing interests: the interest in maintaining the privilege of an attorney’s work product and the court’s interest in providing discovery of facts known and opinions held by an expert.

The defendants contended that without having access to correspondence between a party and its expert, an expert’s testimony at trial may be misleading and the truth-finding process be called into “serious question.” The opinion in support of reversal, also in favor of discovery, referenced Occulto v. Adamar of New Jersey, 125 F.R.D. 611 (D.N.J.1989), in which a lawyer drafted the expert’s opinion and sent it to the expert solely for the expert’s signature. The defendants and the opinion in support of reversal supported a process where the correspondence would be disclosed through discovery; however, if the correspondence contained any attorney work product, the correspondence would be subject to redaction and in camera review by the trial court.

The opinion in support of affirmance identified the difficulties when the policies of liberal discovery and protection of attorney work product converge. The Supreme Court acknowledged that “while some documents might solely contain an attorney’s mental impressions and legal theories, most correspondence between counsel and an expert witness will contain substantial overlap and intermingling of core attorney work product.” The court stated that attempting to redact attorney work product, followed by in camera review by the trial court, would result in unnecessary expense to parties and the trial courts. The court held that since the discoverable information may be obtained through other discovery methods that do not intrude upon the attorney’s work product, a bright-line rule was necessary to prevent discovery of attorney work product.

The opinion in support of affirmance’s rationale in Barrick is fairly consistent with the discovery tools available to practitioners in the financial aspects of divorce and complex support matters. All parties have the opportunity to use the discovery tools permitted by the rules of civil procedure, including interrogatories, requests for production of documents, depositions and service of subpoenas on third parties.

In addition to conducting discovery, the concerns of the opinion in support of reversal are addressed by rules and statutes promoting disclosure of relevant information in divorce matters. This includes Rule 1920.33, which requires each party to file an inventory describing all property owned or possessed. Also relevant is Section 3505(d) of the Pennsylvania Divorce Code, which states that if a party fails to disclose information, the aggrieved party may petition the court to create a constructive trust to hold all undisclosed assets.

The Supreme Court’s holding in Barrick, however, could create issues in custody matters where an issue before the trial court is whether the mental health of one of the parties is a relevant fact in making an award of custody.

A mandatory factor to be considered by a court when making an award of custody is the “mental and physical condition of a party.” Although this is a relevant factor, there are significant limitations on a party’s ability to obtain the mental health records of the opposing party. Specifically, the Pennsylvania Superior Court, in Gates v. Gates, 967 A.2d 1024 (Pa. Super. Ct. 2009), held that a party may maintain the statutory privilege of confidentiality and a party may decline to disclose his or her confidential mental health records in discovery.

This issue is compounded where a party’s mental health is at issue, and the party with the mental health issue retained an expert to assist him or her in the child custody matter. The attorney representing the party with the mental health issue could communicate with his or her expert regarding how to best present, and potentially minimize, the effect of the mental health issue, and the opposing party would be precluded from obtaining those communications.

While there are built-in protections for parties in divorce and complex support matters to obtain relevant information through discovery and mandatory disclosures, the above scenario evidences issues that arise with the protections provided by Barrick and Gates.

The holding established by Barrick could have both negative and positive effects on family law cases. While the holding raises the potential risk of nondisclosure of relevant facts, particularly in custody cases, it also provides a bright-line test to promote the efficient use of experts in all aspects of family law.

Anthony Hoover is an associate in the family law practice group at McNees Wallace & Nurick, and practices in the areas of divorce, support, child custody, property distribution and alimony. He is active in the Central Pennsylvania legal community, having presented on family law issues to the Dauphin County, Cumberland County and Pennsylvania bar associations.