Last week, in a per curiam opinion, an evenly divided Pennsylvania Supreme Court affirmed the Order of the Superior Court in Barrick v. Holy Spirit Hospital, creating a bright-line rule denying discovery of communications between attorneys and expert witnesses. 2014 Pa. LEXIS 1111 (Pa. April 29, 2014).
In Barrick, a personal injury lawsuit, the defendants served a subpoena to obtain records from the plaintiff’s orthopedic surgeon, who was expected to testify at trial. On advice of plaintiffs’ counsel, the doctor withheld records not created for treatment purposes. The defendants filed a motion to enforce the subpoena, which the plaintiffs contested on the basis that defendants sought privileged communications between counsel and an expert witness. The trial court enforced the subpoena, adopting a rule favoring full discovery. Initially, a panel of three Superior Court judges affirmed the trial court order.
Then, in November 2011, an en banc panel of the Pennsylvania Superior Court issued a 38- page opinion that overturned the trial court’s decision which had allowed one party to review written communications by the opposing party to the opposing party’s expert in the case of Barrick v. Holy Spirit Hospital, 1856 MDA 2009 (Pa. Super. Nov. 23, 2011) (8-1 Opinion by Mundy, J.) (Bowes, J. concurring and dissenting). The Superior Court concluded, inter alia, that Pennsylvania Rule of Civil Procedure 4003.3 protected such communications from disclosure under the attorney work product doctrine.
On appeal, the Supreme Court affirmed via a three-three split, with Justice Max Baer writing an Opinion in support of affirmance that was joined by Justice Seamus P. McCaffery and Justice Debra M. Todd. Justice Thomas G. Saylor wrote an Opinion in support of reversal that was joined by Chief Justice Ronald D. Castille and Justice J. Michael Eakin.
The opinion in support of affirmance based its holding on Rule 4003.3 in conjunction with Rule 4003.5, which governs discovery of expert testimony and trial preparation material. As noted in the Barrick decision, currently pending before the Supreme Court is a proposal from the Civil Procedural Rules Committee to amend Rule 4003.5 to provide protection for correspondence between counsel and expert witnesses. Although the Court did not rely on this proposed amendment in reaching its decision, it noted that “it would appear that the Rules Committee believes that adoption of a bright-line test for denying discovery of communications between counsel and expert witnesses would not result in a change in practice in Pennsylvania.”