In a significant reversal of its prior opinion, the Superior Court of Pennsylvania, sitting en banc, has ruled in Barrick v. Holy Spirit Hospital1 that communications between an attorney and his or her expert witness are not discoverable under the Pennsylvania Rules of Civil Procedure.
In Barrick, plaintiffs Carl M. Barrick and his wife Brenda Barrick sued a number of defendants in the Court of Common Pleas of Cumberland County, Pa., contending that Carl Barrick suffered severe spinal injuries when a chair collapsed underneath him in the cafeteria of Holy Spirit Hospital. Defendants Sodexho Management, Inc., Sodexho Operations, LLC and Linda Lawrence (collectively, "Sodexho") served a subpoena on third party Appalachian Orthopedic Center ("Appalachian") for a complete copy of its medical chart regarding Mr. Barrick. While at Appalachian, Mr. Barrick was treated by Dr. Thomas Green, who was later designated as an expert witness for the plaintiffs. In response to the subpoena, Appalachian produced an updated set of medical records for Mr. Barrick, but informed Sodexho that "[c]ertain records . . . that pertain to Mr. Barrick but were not created for treatment purposes are not being produced." Sodexho filed a motion to enforce the subpoena, which the plaintiffs opposed, arguing that the materials not disclosed by Appalachian included communications between plaintiffs' counsel and Dr. Green and other documents related to such communications. The trial court granted Sodexho's motion and ordered disclosure of all materials in Appalachian's custody. Mr. Barrick appealed the decision to the Superior Court in October 2009.
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