Follow the Bright-Line Road!

In the Supreme Court of Pennsylvania

No. 76 MAP 2012

On Appeal from Superior Court 11/23/2011 Docket

Carl J. Barrick and Brenda L. Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity Individually and d/b/a Holy Spirit Hospital, Sodexho Management, Inc., Sodexho Operations, LLC and Linda J. Lawrence 

Affirming the en banc decision of the Superior Court, the Pennsylvania Supreme Court created a bright-line rule denying discovery of communications between attorneys and expert witnesses. 

It is well known the attorney-client privilege afforded to attorney-client communications gives an attorney the ability to develop theories and legal strategies with the aid of information given to him from his client. Equally as important to the ability for an attorney to strategize includes communication between the attorney and an expert witness. Pa.R.C.P. 4003 provides clear directives on what is covered as “privileged” between an attorney and her clients and witness to ensure attorneys have every ability to strategize and devise legal strategies without fear of compromising confidential information or of exposure.

In a case heard before the Supreme Court of Pennsylvania on an interlocutory appeal, Carl J. Barrick and Brenda L. Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity d/b/a Holy Spirit Hospital, et al. (No. 76 MAP 2012), the Court had this very issue before it. The Court was tasked with the balancing between Pennsylvania liberal discovery rules and time-honored tradition of protecting attorney work product.  What determines the fine line between the liberal rules of civil procedure allowing discovery of just about anything that’s relevant and protecting privileged materials, especially the communications between an attorney and expert containing the attorney’s work product? The Court held that it would, “create a bright-line rule denying discovery of communications between attorneys and expert witnesses” using the language of Pa.R.C.P. 4003.3 and 4003.5 as the guiding light to determine what falls under this bright-line rule.

Carl J. Barrick brought the initial action against the Defendants after incurring serious injuries from the collapse of a chair in the cafeteria of Defendant Holy Spirit Hospital, which was under the management of Sodexho. Defendant had served a subpoena in the original action in March 2008 to Dr. Thomas Green, Barrick’s orthopedic surgeon, to obtain the records of Barrick and certain correspondence. The Defendants were supplied the documents. When Defendants requested updated records and correspondence, however, they were denied on the basis that Plaintiffs had instated Dr. Green as an expert witness. Using the language of Pa.R.C.P. 4003.3,  which states, “A party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial…” Plaintiffs argued to restrict Defendants’ ability to enforce the subpoena. Defendants filed a motion to enforce the subpoena, and trial court granted the motion in favor of full discovery, and Plaintiffs appealed the decision.  The Superior Court initially affirmed the trial court’s order; however, upon Plaintiffs’ petition, an en banc panel of the Superior Court reversed the trial court, showing the complexity of the issue.

The Supreme Court acknowledge Defendants’ principal argument that a party should be able to discovery opposing party’s expert file to determine what “facts, data, assumptions or grounds” came from the expert and what came from, presumably, from the opposing party’s attorney.  In response, Plaintiffs argued “the work product privilege is not a document privilege but a thought process privilege.”   They argued the “correspondence between counsel and expert” should be protected “because it helps frame how counsel will strategize the case.”

Siding with Plaintiffs, the Supreme Court has opined that it is better to protect the attorney-expert communications, because there are other methods that opposing counsels can use to obtain discoverable information, such as through cross-examination of the witness. The Court held, therefore, “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.”  The Court noted that a party could still obtain further expert information by “cause shown” under Rule 4003.5(a)(2), but as a general rule the communications between an attorney and his expert are not discoverable.

With the holding from the Supreme Court, it is clear that an attorney has tight control over what can be produced to opposing counsel in reference to the attorney’s communications with his experts.  Given that a party may still discover the communications between opposing counsel and his expert by showing “cause” under Rule 4003(a)(2), every lawyer should still use caution when talking to her expert.

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