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PA Superior Court finds Communication Between Attorney and Expert Witness is Not Discoverable Unless it Forms Basis of Expert’s Opinion

In Barrick v. Holy Spirit Hospital, Sodexho Management, Inc., et al., Carl Barrick was injured on the property of Defendant, Holy Spirit Hospital, when a chair he was sitting on in the hospital cafeteria collapsed on March 29, 2006. Barrick filed suit against defendants on June 18, 2007. During the course of litigation, Defendant Sodexho Management, Inc. served a subpoena on Barrick’s treating physician, for the purpose of obtaining his medical records. In response, the practice group to which the physician belonged stated that it would produce Barrick’s file, but otherwise would exclude any materials which were not generated for the purposes of Barrick’s treatment. Notably, Barrick’s treating physician was also serving as plaintiffs’ expert witness. Sodexho thereby filed a motion to compel to enforce the subpoena.

Following an in camera review of the pertinent correspondence between the physician and Barrick’s attorney, the trial court entered an order granting Sodexho’s motion to enforce the subpoena on October 16, 2009. Following an appeal by Barrick, the Superior Court affirmed the trial court’s order on September 16, 2010. Barrick thereafter sought reargument en banc. On November 19, 2010, the Superior Court entered an order withdrawing the panel’s opinion and ordering reargument. On November 23, 2011, an en banc panel for the Superior Court reversed and remanded.

Despite the “general parameters” for discovery outlined in Pa.R.C.P 4003.1, the court noted that Rule 4003.5 “should be read to restrict the scope of all discovery from non-party witnesses retained as experts in trial preparation.” According to the court, Rule 4003.5(a)(1) “narrowly defines the substantive inquiries that a party may require an opposing expert to answer in an interrogatory,” as “a party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion.” Referencing its 2006 opinion in Cooper v. Schoffstall, the court noted that parties must show cause and obtain a court order to obtain any additional discovery of testimony by an expert witness “other than [the] narrowly defined set of interrogatories” described in 4003.5. Furthermore, as the information sought by defendant’s subpoena qualified as “further discovery by other means,” the court held that the under Rule 4003.5(a)(2), a court order should have been obtained before Sodexho’s request was made.

The court held that the information sought in Sodexho’s subpoena exceeded the permissible scope of discovery in two ways. First, while Sodexho’s subpoena was intended to obtain discovery directly from Barrick’s expert witness, 4003.5(a)(1) “does not authorize any party to discover any written document directly from an expert witness.” Second, in light of the foregoing analysis, the court determined that Sodexho’s request for correspondence between plaintiffs’ attorney and their expert witness ultimately fell outside the permissible scope of Rule 4003.5(a)(1).

The en banc opinion also discussed Rule 4003.3 and the Explanatory Comment regarding attorney work product. Specifically, the court noted that while the work product doctrine is not absolute, the privilege only surrenders to the need for discovery when the attorney’s work product itself becomes relevant to the action. Moreover, under Rule 4003.5(2) cause must be shown demonstrating why the privilege must yield to the need for discovery. In Barrick, the court found that the correspondence at issue was not relevant to the action, and thus concluded that Pa.R.C.P. 4003.3 served as a separate and independent basis for the decision.

The holding in Barrick was accompanied by a concurring and dissenting opinion by Judge Bowes. Specifically, Bowes supported the majority’s analysis of permissible expert discovery under Rule 4003.5, but took exception to the “blanket work-product protection to all communications” pursuant to Rule 4003.3. According to Judge Bowes, it was improper to impose attorney work product protection with regard to all communication between Barrick’s attorney and his expert, as Rule 4003.3 only prohibits disclosure of an attorney’s mental impressions which, Bowes noted, may not necessarily be contained in the communication protected from discovery. Furthermore, Judge Bowes wrote that because an expert witness is not an “attorney, consultant, surety, indemnitor, insurer[, ]agent,” or other entity specified under Rule 4003.3, communication from an expert witness is not entitled to protection under Rule 4003.3.

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