How the Barrick case was won
Wayne Shade, Esq.

In Barrick v. Holy Spirit Hospital, et al. 2014 Pa. LEXIS 1111, an evenly divided Pa. Supreme Court affirmed a Superior Court opinion which in general shields attorney–expert communications from discovery.

The plaintiff was seriously injured when a chair collapsed beneath him in the cafeteria of the hospital. After plaintiff filed suit, defendants issued a records subpoena on one of plaintiff’s treating physicians who was also going to testify as an expert witness for plaintiff. The subpoena sought all of the physician’s records, including relevant correspondence. The physician disclosed all records and correspondence that related to the diagnosis and treatment of plaintiff. But defendants were notified that the disclosures did not include emails between counsel for plaintiff and the physician that related to the role of the physician as an expert witness for plaintiff on the basis that they were prepared in anticipation of litigation as opposed to for the purposes of diagnosis and treatment.

Defendants sought to compel discovery of the emails between plaintiff’s counsel and the physician that did not relate to the diagnosis or treatment of plaintiff. The trial court ordered that the emails to be disclosed on the basis of defendants arguments that such discovery is necessary to the truth-determination process.

Plaintiff appealed the order as a collateral order, and counsel for plaintiff requested the involvement of the Pennsylvania Association for Justice. The affirmance of the trial court order by a panel of the Superior Court was, immediately, a matter of such substantial concern in all quarters of the Pennsylvania trial bar that it resulted in the still pending proposal by the Civil Procedural Rules Committee to amend Rule 4003.5 to provide protection for the correspondence between counsel and expert witnesses.

Due to the importance of the case, the leadership of the Association facilitated the involvement of Champion of Justice John P. Gismondi, Esq. His motion for reargument before the Superior Court en banc was granted, and the panel decision was withdrawn. After briefing by Attorney Gismondi and oral argument by PAJ Member, Terry S. Hyman, Esq., the trial court order was reversed.

The Superior Court held that the records in question were "beyond the permissive scope" of Rule 4003.5(a)(1 ) expert witness discovery, which provides for discovery through interrogatories of the "substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." The Superior Court further held that Rule 4003.3's protection of attorney work product shielded the correspondence from disclosure as involving “the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories," where the correspondence did not fall within the limited exception for disclosure of attorney work product in which the product itself is "relevant" to the underlying action, such as when a party raises the defense of good faith reliance on counsel.

Defendant’s petition for allocator was granted on the issue of whether the Superior Court's interpretation of Rule 4003.3 improperly provides absolute work product protection to all communications between a party's counsel and their trial expert.

In his brief and oral argument, Attorney Gismondi urged the Supreme Court to affirm the Superior Court’s adoption of a clear and unequivocal rule, similar to that embodied in the proposed amendment to Rule 4003.5, which declares that attorney-expert communications are simply not discoverable. The Supreme Court affirmed the Superior Court on the basis of an equally divided Court and confirmed the establishment of a bright-line rule denying discovery of communications between attorneys and expert witnesses.

Sustaining member Wayne F. Shade, Esq. of Carlisle is Plaintiff’s counsel in Barrick.

Share |