By Bruce Merenstein
Special to The Legal
Testifying experts and the lawyers who hire them have an extra reason to give thanks this holiday season. The Pennsylvania Superior Court, in an en banc decision issued on the eve of Thanksgiving, held that communications between lawyers and testifying experts are protected by the work-product doctrine and are not discoverable.
With certain exceptions, communications between counsel and testifying experts are protected from disclosure in federal court under an amendment to Rule 26 of the Federal Rules of Civil Procedure that became effective about a year ago. Around the same time, the Pennsylvania Civil Procedural Rules Committee recommended adoption of an amendment to Rule 4003.5 of the Pennsylvania Rules of Civil Procedure that would have protected from disclosure all communications between counsel and a testifying expert. While the Pennsylvania Supreme Court has not yet adopted the proposed amendment, the Superior Court held, in its 8-1 decision in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, that communications between counsel and a testifying expert are protected from disclosure by the work-product doctrine.
In Barrick, one of the defendants in a personal injury action served two subpoenas on the office of the injured plaintiff's treating physician, seeking all documents pertaining to the plaintiff, including communications between plaintiff's counsel and the treating physician. The office produced all medical records, but declined to produce the communications. Although defendant was unaware of it at the time, plaintiff had retained his treating physician as a testifying expert shortly before service of the second subpoena. The defendant moved for enforcement of the subpoena and, over plaintiff's objection, the trial court issued an order compelling production of the withheld communications. The plaintiff then filed an interlocutory appeal to the Superior Court.
A panel of the Superior Court initially affirmed the trial court order, in an opinion by Judge Judith Olson, joined by Judges John Musmanno and Anne Lazarus. The Superior Court then granted the plaintiff's application for re-argument en banc and, after a nine-judge en banc panel (that did not include any of the judges from the original panel) reheard the case, reversed the trial court order.
In a portion of the en banc opinion in which all nine judges joined, the court reiterated that Rule 4003.5, the rule governing discovery from experts, requires a party to seek expert discovery from the opposing party and not directly from a testifying expert. In Barrick, the subpoenas were served on the testifying expert because, at the time, the defendant was unaware that the treating physician had been retained as a testifying expert. But, the court emphasized, once the treating physician became a testifying expert, all discovery had to be directed to the party and not the expert.
The court also noted that Rule 4003.5 limits expert discovery to the facts and opinions to which the expert expects to testify and the grounds for his or her opinion. Any additional discovery is permitted only "upon cause shown," and pursuant to a court order, in accordance with Rule 4003.5(a)(2). Thus, the court held, the rule governing expert discovery does not permit disclosure of communications between counsel and a testifying expert unless the party seeking the disclosure demonstrates "cause" for such disclosure and obtains a court order compelling the disclosure of the communications.
The court did note that communications between counsel and a testifying expert could be encompassed in the required disclosure under Rule 4003.5 "if, for example, the expert specifically cited such correspondence as one basis for his or her expert opinion." Thus, where an expert discloses in his or her report or interrogatory responses under Rule 4003.5(a)(1) that his or her opinion is based in part on information communicated to the expert by counsel, such communications may be discoverable. That was not the case in Barrick, however, so this exception did not apply.
Plainly, the court could have reversed the trial court's order compelling disclosure of the communications between counsel and the testifying expert in Barrick solely on the basis of its holdings regarding Rule 4003.5. Yet, it went on to decide (in a portion of its opinion to which Judge Mary Jane Bowes dissented) that Rule 4003.3, the rule governing discovery of attorney work product, also precluded discovery of all communications between counsel and a testifying expert.
Rule 4003.3 broadly permits discovery of materials "prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative," including the party's attorney, but precludes discovery of an attorney's mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. The court in Barrick held that this work-product protection precluded discovery of all communications between counsel and a testifying expert. Although the court indicated that communications that are directly relevant to an action (such as communications relevant to a reliance-on-counsel defense) may be discoverable, its holding precludes from discovery virtually all communications between counsel and a testifying expert.
The Barrick court did not address whether disclosure of attorney work-product to a third party (the testifying expert) constitutes waiver of the work-product protection, but Judge Bowes, in a footnote in her dissent, noted that she was unaware of any Pennsylvania authority supporting such a rule. In any event, given the broad holding in Barrick, it appears clear now that such disclosure does not waive work-product protection and that, in most situations, communications between counsel and a testifying expert are protected from disclosure, even without adoption of the proposed amendment to Rule 4003.5.
Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].
This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.
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