Attorney-expert talks weighed by high court in discovery case

2 Pennsylvania justices are leery about lifting such confidentiality

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Two Pennsylvania Supreme Court justices are questioning whether opening the gates of discovery to communications between an attorney and his or her expert would have an unfavorable impact on litigation in Pennsylvania courts.

Addressing one defense attorney hoping to gain access to communications between opposing counsel and his expert physician, Justice Max Baer said using such communications to precisely establish -- and possibly attack -- the origins of an expert's opinion would lead to "chaos."

Justice Debra Todd, noticeably reluctant to accept the defense theory in support of discovery, told attorney Stephanie L. Hersperger she was concerned about what impact allowing the discovery would have on the practice of law in the state. In her words, a decision in the defendants' favor would "handicap every attorney," plaintiffs or defense.

The comments came during the argument of Barrick v. Holy Spirit Hospital in the second day of the two-day Pittsburgh session. The Supreme Court travels occasionally for its hearings, and was in Pittsburgh last week.

A ruling from the justices has been long awaited after the Superior Court reversed itself in November 2011 and ruled, 8-1, that such communications are not discoverable.

Ms. Hersperger, the Thomas, Thomas & Hafer attorney representing defendant Sodexho Management Inc., said the language of Pennsylvania rules on the scope of discovery does not mention "expert," and therefore does not extend a work-product protection to communications between expert and attorney.

John P. Gismondi, of the law offices of Gismondi & Associates in Pittsburgh, refuted the notion that the issue before the justices is one of "high theory." Instead, the plaintiffs' attorney said it's an issue of "case management."

Mr. Gismondi added that a number of committees have reviewed the issue and all have come to the same conclusion: Opening up the gates of discovery to attorney-expert communication as the federal courts have done would invite unnecessary mischief, time and expense into the litigation process.

The high court took up the case to determine whether the Superior Court's interpretation of discovery rules "improperly provides absolute work-product protection to all communications between a party's counsel and their trial expert."

In Barrick, Sodexho served its subpoena on treating physician 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 Sodexho-managed property at Holy Spirit Hospital in Camp Hill, Pa., near Harrisburg, when a chair he was sitting on in the hospital cafeteria collapsed.

Dr. Green's practice, Appalachian Orthopedic Center, informed Sodexho 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. Sodexho filed a motion to compel, but Appalachian argued the subpoena cannot include trial preparation materials in connection with communications between Ms. Barrick's counsel and Dr. Green.

Holy Spirit Hospital's attorney, Brett W. Farrar of Dickie, McCamey & Chilcote in Pittsburgh, argued treating physicians are historically fact witnesses subject to a different set of discovery rules than experts.

Mr. Farrar argued that when there are communications between an attorney and a treating physician, and that treating physician is later designated an expert witness, then those communications can no longer be considered attorney work-product.

"To insulate that person by unilaterally designating them an expert is incorrect," Mr. Farrar said.

Mr. Gismondi said Pennsylvania case law has, for years, allowed such witnesses to wear "two hats," recognizing the fact that lawyers cannot compel treating physicians to render expert testimony.


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