Attorney-expert communications not discoverable

Superior Court reverses itself

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In a complete reversal of course from its decision last year, the state Superior Court has ruled communications between an attorney and his expert witness are not discoverable.

The nine-judge en banc panel in Barrick v. Holy Spirit Hospital ruled 8-1 to reverse an earlier three-judge panel that had found in September 2010 such communications were discoverable.

The ruling essentially returns Pennsylvania's attorney-expert discovery methods to their original state, before the Barrick case appeared in state appellate courts. But the ruling could also have side effects; namely, a raft of unneeded discovery motions.

The court ruled late last month that the Cumberland County trial judge and the three-judge panel below had misinterpreted Rule of Civil Procedure 4003.5, which deals with discovery of expert testimony related to trial preparation material.

"We also underscore that [rule] narrowly defines the substantive inquiries that a party may require an opposing expert to answer in an interrogatory," Judge Sallie Mundy said for the majority.

As the state Supreme Court indicated in its 2006 opinion in Cooper v. Schoffstall, Judge Mundy said, any additional discovery of testimony by an expert witness "other than this narrowly defined set of interrogatories" requires a party to show cause and get a court order to conduct the discovery.

In Barrick, defendant Sodexo Management Inc. served its subpoena on Thomas Green, who also served as an expert witness for plaintiffs Carl J. and Brenda L. Barrick. It sought the medical records of Carl Barrick, who was injured on Sodexo-managed property at Holy Spirit Hospital when a chair he was sitting on in the hospital cafeteria collapsed.

Dr. Green's practice, Appalachian Orthopedic Center, informed Sodexo that it would turn over the patient's file, but would exclude records that pertained to Ms. Barrick but were not created for treatment purposes.

Sodexo filed a motion to compel for failure to comply with the subpoena. Appalachian argued the subpoena cannot include trial preparation materials in connection with communications between Mr. Barrick's counsel and Dr. Green.

Judge Mundy said in her opinion that Sodexo's subpoena exceeded the scope of 4003.5(a)(1) for two reasons. First, Sodexo intended to use the subpoena to obtain records directly from an opposing party's expert witness by sending the subpoena directly to Appalachian, she said. Judge Mundy said that form of discovery is not allowed.

Second, Sodexo overreached in terms of substance because it sought information beyond the scope of 4003.5(a)(1), she said.

In a footnote, Judge Mundy said correspondence between a party's expert and attorney may be a valid response to the narrowly defined interrogatories outlined in 4003.5(a)(1) if the expert specifically cited such correspondence as the basis for his opinion. She said that wasn't the case, however, in Barrick.

President Judge Correale F. Stevens and Judges John T. Bender, Jack A. Panella, Christine L. Donohue, Jacqueline O. Shogan, Paula F. Ott and Robert A. Freedberg joined Judge Mundy in the decision. Judge Mary Jane Bowes wrote a concurring and dissenting opinion.

Judge Bowes said she agreed with the majority that 4003.5 prohibits the use of a subpoena directed to the expert to obtain documents in the expert's file. She said she disagreed, however, that rule 4003.3 "affords blanket work-product protection to all communications vis-a-vis the attorney and his expert."

Judge Bowes said the majority recognizes that a review might be necessary and such an approach implicitly recognizes that such correspondence is not attorney work product per se.

"I cannot reconcile these statements by the majority, however, with its simultaneous wholehearted approval of appellants' contention that 'forcing disclosure of any communications between counsel and an expert witness violates the work-product privilege contained in 4003.3,' " Judge Bowes said.

Terry S. Hyman of SchmidtKramer in Harrisburg argued the case on behalf of the Barricks. Stephen E. Geduldig and Stephanie L. Hersperger of Thomas, Thomas & Hafer in Harrisburg represented Sodexo. Mr. Geduldig said he hasn't spoken with his client yet about whether they would appeal.

Daniel E. Cummins filed an amicus brief in support of Sodexo on behalf of the Pennsylvania Defense Institute and Stephen Greecher Jr. of Tucker Arensberg filed an amicus brief in support of Barrick on behalf of the Pennsylvania Association for Justice.

Gina Passarella: or 215-557-2494. First Published December 5, 2011 5:00 AM


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