Reference Manual on Scientific Evidence Third Edition

This post was written by Gary A. Jeffrey.

The Reference Manual on Scientific Evidence, Third Edition has recently been released by the National Academies Press. This work is a substantial update to the prior version, which was first published in 2000, and is intended as a guide to the federal judiciary in assessing complex scientific, economic and engineering issues. In addition to revisions to existing chapters there are four new sections on Forensic Identification Expertise, Exposure Science, Neuroscience, and Mental Health. Of special interest is the new Reference Guide on Exposure Science, which is meant to compliment the sections on epidemiology and toxicology by describing the methods used in estimating the dose of a potentially toxic material to which persons may have been exposed. The newly drafted section on Neuroscience covers the use of neuroimaging or scans to assess an individuals claims concerning pain, and in the context of a criminal proceeding diminished capacity, sanity and honesty. The Third Edition may be purchased form National Academies Press or a free PDF version downloaded at their website (registration required).

Changes to Rule 26 Make It Easier To Work With Experts

This post was written by Meghan K. Landrum.

Recent changes to the Federal Rules of Civil Procedure (FRCP) Rule 26 make it easier to communicate with expert witnesses and to prepare them for deposition and trial testimony while still protecting attorney work product. While expert discovery has been a part of federal practice since 1993, the period dedicated to the discovery of attorney-expert communications and draft expert reports has become increasingly time consuming during pre-trial preparation. The amendments to Rule 26 address this development and attempt to create an atmosphere that encourages better communication between attorneys and their experts.

To learn more about the changes made to Rule 26 and the immediate impact this has on working with expert witnesses, read our full alert.

Communications Between Attorney and Testifying Expert Are Discoverable in Pennsylvania

This post was written by George M. Linge and Natalie C. Metropulos.

Addressing an issue of first impression in Pennsylvania, the Pennsylvania Superior Court recently concluded that an attorney's communications with a testifying expert are discoverable. This important decision puts Pennsylvania law squarely at odds with the newly amended Federal Rule 26(b)(4), set to take effect December 1, 2010, which prohibits discovery of drafts of an expert's reports as well as communication between counsel and the expert. Now, as much as ever, it is critical to understand the venue-specific rules on communications with experts.

In Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, No. 1856 MDA 2009, 2010 PA Super 170 (Pa. Super. Sept. 16, 2010), Carl Barrick claimed to be injured when the chair he was sitting on in a hospital cafeteria collapsed. Barrick was treated by Dr. Thomas Green, whom plaintiff’s counsel also identified as an expert. In discovery, plaintiff’s counsel produced the medical treatment records but, citing the privilege afforded attorney-work product, refused to produce communications between plaintiff’s counsel and Dr. Green. Following an in camera review, the trial court concluded that the communications between counsel and the expert were discoverable.

On appeal, the Pennsylvania Superior Court affirmed, finding 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 and communications with the party’s counsel; therefore, the attorney’s work-product must yield to discovery of those communications.”  To learn more about the recognized tension between two basic state rules of discovery in this case: Rule 4003.3, which limits the scope of production of an attorney’s trial preparation materials; and Rule 4003.5, which permits “discovery of the facts known and opinions held by an expert” that are “acquired or developed in anticipation of litigation or for trial," read our full alert.