On April 29, an evenly divided Pennsylvania Supreme Court resolved an issue of paramount importance to Pennsylvania litigants: whether communications between an attorney and a testifying expert are protected from discovery by the work-product doctrine. The Supreme Court held that such communications are not discoverable, creating “a bright-line rule denying discovery of communications between attorneys and expert witnesses.”
The Supreme Court’s holding came in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, No. 76 MAP 2012 (Pa. April 29, 2014), a case with a long history. (See Pepper Hamilton’s Client Alert concerning Barrick for a discussion of earlier decisions.) Unable to reach a consensus, the Supreme Court issued a 3-3 split decision affirming the prior holding of the nine-judge en banc panel of the Superior Court.
In Barrick, the defendant served the plaintiff’s treating physician, who the plaintiff also retained as a testifying expert, with a subpoena to produce documents. The physician produced the subpoenaed medical records and related correspondence, but withheld materials created in his role as an expert witness, as well as correspondence with the plaintiff’s counsel. An en banc panel of the Superior Court agreed with the doctor that the work-product doctrine protected the materials from disclosure.
The Pennsylvania Supreme Court’s 3-3 split dictated affirmance of the Superior Court. Justices Baer, Todd and McCaffery issued the affirming opinion and explained that when balancing “the truth-determining process through liberal discovery” against “protecting attorney work product,” the Pennsylvania Rules of Civil Procedure (the “Rules”) favor protecting attorney work product.
The court acknowledged that the Rules broadly allow for a party to “obtain discovery regarding any matter, not privileged, relevant to the subject matter involved in the pending action,” and included in this broad scope is a party’s ability to discover the “facts known and opinions held by an expert.” But the Rules also protect against the disclosure of “mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theory.” The court acknowledged that it is possible that communications between attorneys and expert witnesses may not always contain attorney work product, but “it is preferable to err on the side of protecting the attorney’s work product by providing a bright-line rule barring discovery of attorney-expert communications.”
As the Barrick plaintiffs pointed in out in their briefing, the Federal Rules of Civil Procedure protect from discovery experts’ communications with counsel. The court’s interpretation of Rules 4003.3 and 4003.5 brings Pennsylvania practice into harmony with federal practice, and provides comfort to both plaintiffs and defendants, as the “result ... will impact plaintiffs and defendants equally to the extent they present expert testimony and correspondingly face discovery demands from the opposing party.”