Pennsylvania Superior Court Holds Attorney-Expert Communications Discoverable

by Maureen A. Gallagher Esq.

The Pennsylvania Superior Court, in Barrick v. Holy Spirit Hospital, has held that communications between counsel and their trial experts are discoverable. This ruling carries significant implications for both health care providers who act as expert witnesses and defense counsel.

The case involved an injury which occurred when Plaintiff’s chair collapsed in the hospital cafeteria. He sought treatment from an orthopedic surgeon, who later agreed to serve as his expert witness for trial. Defense counsel served a subpoena on Plaintiff seeking production of his complete “medical file.” Plaintiffs’ counsel produced treatment records, but objected to production of electronic mail and written correspondence between themselves and the orthopedic expert, citing the attorney work product privilege. Defendants filed a motion to compel. The Cumberland County Court conducted an in camera review of the correspondence, and subsequently directed its production. An appeal was immediately filed.

The Superior Court upheld the trial court’s Order, finding that there is an inherent conflict between Rule 4003.3 (prohibiting disclosure of the mental impressions of a party’s attorney or representative) and Rule 4003.5 (requiring disclosure of the grounds for an expert’s opinions). The Court held that in order to reconcile this conflict, “the attorney’s work product doctrine must yield to discovery of those communications.” The Court rejected the argument that a trial expert is a party’s “representative” (which includes a “consultant”) under Rule 4003.3, and also noted that the Rules distinguish between an expert who will testify at trial “and an expert who serves as a consultant only and will not testify.”

The Superior Court also declined to apply its decision in a purely prospective manner, noting that its holding is “merely clarifying the incongruity between two rules, rather than instituting a complete change in the law.” The Court specifically noted that plaintiffs’ counsel could not reasonably have expected his work product to remain privileged when defendants were entitled to discover “the grounds for each opinion” set forth by his expert, pursuant to Rule 4003.5. Further, “because attorney work-product is not absolutely privileged,” plaintiffs’ counsel should have anticipated that his communications with his expert could be subject to discovery, and he ”undertook a risk in corresponding with [his trial expert].” Thus, this ruling is immediately applicable to all pending cases.

Finally, the Superior Court acknowledged that recent amendments to Federal Rule of Civil Procedure 26 will prohibit disclosure of drafts of expert reports and expert communications with counsel, effective December 2010. However, the Superior Court expressly “disavows any reliance upon FRCP 26,” since the explanatory comment to PaRCP 4003.3 states that it differs materially from FRCP 26(b)(3).

Health care providers acting as expert witnesses and defense counsel should carefully read the Superior Court’s opinion in this case because of the implications associated with the discovery of attorney-expert communications.