Private Conversations Between A Lawyer And 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 Pa. Supreme Court agreed with a Superior Court opinion which 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 plaintiff filed suit, defendants issued a records subpoena on one of plaintiff’s treating physicians who was also going to testify as an expert witness for plaintiff. The subpoena sought all of the physician’s records, including relevant correspondence. The physician disclosed all records and correspondence that related to the diagnosis and treatment of plaintiff. But defendants were notified that the disclosures did not include emails between counsel for plaintiff and the physician that related to the role of the physician as an expert witness for plaintiff on the basis that they were prepared in anticipation of litigation as opposed to 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 plaintiff. The trial court ordered that the emails to be disclosed on the basis of defendants arguments that such discovery is necessary to the truth-determination process.

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

Motion for reargument before the entire Superior Court was granted, and the panel decision was withdrawn.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 the protection of attorney work product shielded the correspondence from disclosure as involving “the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories,” where 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.

Defendant’s petition for appeal to PA 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 lawyer 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 that 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.


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