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.
