Private Conversations Between a Lawyer & an Expert Witness Are Protected in Pennsylvania

From the desk of John R. Badal, President of the Berks County law firm of Liever, Hyman & Potter. In Barrick v. Holy Spirit Hospital, an evenly divided Pennsylvania Supreme Court agreed with a Superior Court opinion that shielded attorney and expert witness communications from disclosure.

The plaintiff was seriously injured when a chair collapsed beneath him in the cafeteria of the hospital. After the plaintiff filed suit, defendants issued a records subpoena on one of the plaintiff’s treating physicians, who was also going to testify as an expert witness for the plaintiff. The subpoena sought all of the physician’s records, including relevant correspondence. The physician disclosed all records and correspondence related to the diagnosis and treatment of the plaintiff. However, defendants were notified that the disclosures did not include emails between counsel for the plaintiff and the physician that related to the physician’s role as an expert witness, on the basis that they were prepared in anticipation of litigation rather than for the purposes of diagnosis and treatment.

The defendants sought to compel discovery of the emails between plaintiff’s counsel and the physician that did not relate to the diagnosis or treatment of the plaintiff. The trial court ordered that the emails be disclosed, accepting the defendants’ arguments that such discovery is necessary to the truth-determination process.

The plaintiff appealed the order. The affirmance of the trial court order by a panel of the Superior Court immediately resulted in a still-pending proposal by the Civil Procedural Rules Committee to amend Rule 4003.5 to provide protection for correspondence between counsel and expert witnesses.

A motion for reargument before the entire Superior Court was granted, and the panel decision was withdrawn. After briefing and oral argument, the trial court order was reversed.

The Superior Court held that the records in question were “beyond the permissive scope” of expert witness discovery, which provides for discovery through interrogatories of the “substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” The Superior Court further held that attorney work product protection shielded the correspondence from disclosure, as it involved “the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” The correspondence did not fall within the limited exception for disclosure of attorney work product in which the product itself is “relevant” to the underlying action, such as when a party raises the defense of good faith reliance on counsel.

The defendant’s petition for appeal to the Pennsylvania Supreme Court was granted. The Supreme Court affirmed the Superior Court on the basis of an equally divided Court and confirmed the establishment of a bright-line rule denying discovery of communications between attorneys and expert witnesses.

The substance of this case summary was provided by the Pennsylvania Association for Justice. Liever, Hyman & Potter attorney John R. Badal has been proud to be a sustaining member of that organization for more than twenty years. Liever, Hyman & Potter has been championing the rights of those who have suffered injury and the families who have lost loved ones from wrongful injury for more than 55 years in Reading, PA, Berks County, PA, Pottsville, PA, Schuylkill County, PA, and all of Central and Eastern Pennsylvania.