Below is another guest post from a lawyer who prefers to remain anonymous, part of an ongoing series of updates that informally supplement the Pennsylvania Civil Discovery book I co-wrote with Jim Beasley, Jr. I previously wrote about the now-overruled Barrick opinion in this post about attorney-client privilege in Pennsylvania, and I agree with the en banc Superior Court’s new opinion. Tort Talk also has a summary.


Discovery Discoveries

By: JLawyer

You said what to your expert???

An en banc panel of the Pennsylvania Superior Court recently ruled that the correspondence between counsel and an expert witness retained by counsel is not subject to discovery.

Plaintiff was injured when a chair in which he was sitting collapsed in the cafeteria of the defendant hospital.  The hospital’s property management company issued a subpoena to the orthopedic center with which plaintiff’s treating physician was associated.  Specifically, the subpoena requested a “complete copy of the entire medical chart/file” of the plaintiff pursuant to Pennsylvania Rule of Civil Procedure 4009.21.  The center did not object to the subpoena, nor did it seek a protective order.  It did, however, withhold from production certain records pertaining to plaintiff which “were not created for treatment purposes.”  In response, the property management company filed a motion to enforce the subpoena on grounds that the center did not comply with the subpoena request.

In Barrick v. Holy Spirit Hospital, (No. 1856 MDA 2009, November 23, 2011)(PDF opinion here) the Court reversed its September, 2010 ruling which affirmed the trial court’s order granting enforcement of the subpoena.   The trial court’s order directed the orthopedic center to produce “any and all documents” pertaining to the plaintiff, including the correspondence between the center’s counsel and the treating physician.  Notably, the physician was also designated to testify as an expert witness at trial.

The issue presented to the en banc panel was whether “the trial court erred by ordering a treating physician, who will also be testifying as [an] expert witness, to disclose letters and emails between the physician and counsel . . . that addressed the strategy as to how to frame the physician’s expert opinions . . . .”

Writing for the panel, Judge Sallie Mundy concluded,

because the correspondence concerns only [the physician’s] preparation for his role as an expert witness, any discovery request pertaining to said correspondence falls squarely within the purview of [Pennsylvania Rule of Civil Procedure] 4003.5 [pertaining to discovery of expert testimony].

The “plain language” of the Rule permits only the discovery (through specific interrogatories) of 1) the facts and opinions on which experts are expected to testify and 2) a summary of the grounds for each such opinions.  Accordingly, the information requested by the subpoena exceeded the scope of, and fell outside the express language of Rule 4003.5.  Any further discovery (by subpoena or otherwise) would have required a court order entered “upon cause shown” before the request was made.

The panel also held that the correspondence between counsel and the expert were protected from discovery on the basis of the work product privilege set forth in Pennsylvania Rule of Procedure 4003.3.   Acknowledging that the privilege is inapplicable where the information sought is “directly relevant to the action,” Judge Mundy concluded that the correspondence itself was “not relevant” to the action and therefore not subject to discovery.

Judge Mary Jane Bowes issued a concurring and dissenting opinion wherein she agreed with the panel’s ruling on the basis of Rule 4003.5 regarding expert witness discovery.  However, Judge Bowes disagreed with the conclusion that Rule 4003.3 “affords blanket work-product protection to all communications [between] the attorney and his expert.”  Rather, an in camera examination is necessary to determine what, if any, of the correspondence is indeed protected work product.