Litigation News – Fall 2014
October 18, 2014
Are Attorney-Expert Communications Discoverable in Pennsylvania? (Almost never) Some Clarity from the Appellate Courts
By Donald Kaufman and Kelly Martin
In Pennsylvania, testifying experts usually are not deposed before trial; typically, their written reports are provided in advance of trial and delineate the substance and scope of their testimony. Attorneys often wish to communicate with their client’s expert and comment on drafts of the reports. Until April 2014, the law was not clear whether these communications were discoverable. This uncertainty made it problematic and potentially perilous for a party’s attorney to communicate with the party’s testifying expert, particularly in advance of the disclosure of the expert’s report. In Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, No. 2014 WL 1688447 (Pa. Apr. 29, 2014), the Justices of the Supreme Court of Pennsylvania took up the issue of the discovery of attorney-expert communications and split 3-3. This left intact the Superior Court’s bright-line rulepreventing discovery of attorney-expert communications—a rule now to be applied by Pennsylvania trial courts.
The history of the Barrick case underscores the competing considerations at issue. The case began with a complaint in December 2007 where Plaintiffs sought compensation for injuries that Mr. Barrick suffered when a chair collapsed beneath him in the hospital cafeteria. In 2008, Defendants served Barrick’s treating physician with a subpoena to obtain all records and relevant correspondence regarding Barrick’s injuries. Problems arose later when Defendants requested the doctor’s updated records. Because Plaintiffs had since engaged the doctor as an expert witness, the doctor supplied some records but withheld others on the advice of Plaintiffs’ counsel. When Defendants moved to enforce the subpoena, Plaintiffs claimed protection for the communications under the rules governing discovery.
The trial court adopted a bright-line rule allowing the discovery of the communications, concluding:
[W]here an expert is being called to advance a plaintiff’s case in chief and the nature of the expert’s testimony may have been materially impacted by correspondence with counsel, such correspondence is discoverable.
Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 2009 WL 5841789, at *1 (Pa. Com. Pl. Dec. 15, 2009). But the trial court’s would not be the last word.
Plaintiffs appealed the ruling, and the Superior Court initially affirmed the bright-line rule allowing the discovery of the communications, reiterating the trial court’s concern with improper influence on expert testimony. See Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 5 A.3d 404 (Pa. Super. 2010). The court, however, granted rehearing and withdrew its first opinion. The nine-judge en banc panel then issued its decision on November 23, 2010, reversing the trial court’s ruling and superseding the withdrawn opinion issued earlier that month. See Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800 (Pa. Super. 2011).
The en banc Superior Court adopted a bright-line rule as well, but the very opposite of the earlier decisions. The court found that Defendants’ subpoena for the doctor’s communications with Plaintiffs’ counsel exceeded the scope of discovery permitted under Rule 4003.5(a)(1), which only allows interrogatories inquiring as to the substance of the facts and opinions to which the expert expects to testify. Because the attorney-expert communications requested fell outside the scope of 4003.5(a)(1), the Defendants needed to show cause sufficient to overcome the protections of the work product doctrine (discovery shall not include disclosure of mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories) before seeking the documents. The court held that without a showing as to why the communication itself is especially relevant to the underlying action, the work product doctrine protects any and all communication between attorney and expert witness. The Superior Court’s ruling brought the state in concert with recent amendments to the Federal Rules of Civil Procedure and in agreement with proposed amendments to the Pennsylvania Rules of Civil Procedure.
The only issue before the Supreme Court of Pennsylvania was whether the Superior Court’s interpretation of the scope of 4003.3 (which governs the scope of discovery of trial preparation material) improperly provided work product protection to all communications between a party’s attorney and his/her trial expert. Justice Baer, writing for the Opinion in Support of Affirmance, acknowledged that the Rules generally allow broad discovery, but disagreed with Defendants’ argument that the Superior Court’s bright-line rule ignored the balance between confidentiality and truth-finding. Justice Baer focused on the impracticality of reviewing in camera original or redacted attorney-expert communications to parse out where the work product ends and the factual discussion begins. Instead, he opined that even if the evidence contained in the communications could sometimes expose improper behavior on the part of the attorney, expert, or both, it would be a greater evil to expose all communications to discovery just to find the few infringing examples.
Under the Barrick bright-line rule attorneys on both sides can communicate more freely and discuss the details of the law and legal theories with testifying experts, without exposing those communications to discovery. That the expert’s opinion not be improperly manipulated by counsel will be left to ethics and good faith, as is true of much of discovery.
© 2014 McNees Wallace & Nurick LLC
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