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Superior Court Grants Petition for En Banc Re-Argument in Attorney Work-Product Privilege Matter

In a three-judge panel’s decision filed on September 16, 2010, the Superior Court in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, et al. affirmed the trial court’s order of October 16, 2009, which granted the discovery and production of correspondence between counsel for Appellants and Appellants’ treating physician and designated expert witness for trial.

Appellants filed suit against Appellees when Appellant was injured when a chair collapsed underneath him in the cafeteria at Holy Spirit Hospital. Appellant received care from his treating physician and designated expert witness shortly thereafter. During discovery, Appellees served subpoenas to procure Appellant’s medical file, including written correspondence between Appellant’s counsel and Appellant’s treating physician which pertained to the physician’s role as the designated expert in the case. After an in camera review of the correspondence, the trial court entered an order directing production of the requested documents.

In reviewing the order of the trial court, the Superior Court turned first to Appellee’s contention that Appellant’s failure to object to the subpoenas with 20 days of service constituted waiver of objection. Drawing on its decision in McGovern v. Hospital Service Association, 785 A.2d 1012 (Pa.Super. 2001), which, describing the court’s reluctance to compel any privileged discovery, held that such a failure to object within the prescribed time period did not automatically waive the right to object, the court determined that Appellants had indeed objected to the subpoenas at issue when they realized that privileged information was a potential target of Appellee’s request. As such, the court declined to find any waiver on the part of Appellants.

Turning next to the merits of Appellant’s appeal, the Superior Court sought to reconcile the apparent conflict between PA Rule 4003.3, which prohibits discovery of the mental impressions of a party’s representative in preparation for litigation, and 4003.5, which requires disclosure of the substance of facts and opinions underlying a testifying expert’s conclusions. The court ultimately held that if an expert witness is being called to advance a party’s case-in-chief, the expert’s opinion and testimony may be impacted by correspondence with the party’s counsel. Thus, the attorney’s work-product doctrine must yield to the discovery of those communications.

Deeming Appellant’s request to conduct an in camera inspection of the correspondence as impractical, the Superior Court justified its holding by claiming that the attorney work product privilege is “not sacrosanct.” Rather, according to the court, Appellants’ counsel could not reasonably expect his work product to remain privileged when Appellees were undoubtedly entitled to discover, under PA Rule 4003.5(b), the substance and grounds for the testifying expert’s opinion. Ultimately, discovery of such information was deemed necessary to test the weight and veracity of the expert’s conclusions. As such, the court concluded that the medical records already produced by Appellants did not contain all the information upon which the expert had relied, as direction from counsel may very well have acted as an additional basis for the expert’s opinion. As a result, the order of the trial court was upheld and the communications were deemed discoverable.

On November 19, 2010, the Superior Court withdrew the foregoing opinion, granting a petition for en-banc re-argument.

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