On April 29, 2014 an evenly divided Supreme Court let stand a Superior Court opinion which effectively creates a blanket prohibition on discovery of communications between an attorney and his or her expert. On November 23, 2011 the Superior Court handed down its opinion in Barrick vs. Holy Spirit Hospital, (32 A.3d 800). In that case, Carl Barrick brought suit against the hospital and its catering company, Sodexho, for injuries suffered when chair on which he was sitting collapsed beneath him in hospital cafeteria. Sodexho sought discovery directly from one of Mr. Barrick’s treating physicians, Dr. Greene, who was also designated as an expert witness to testify at trial. The medial records were produced, but Dr. Greene refused to produce “Certain records of this office that pertain to Mr. Barrick but were not created for treatment purposes….” These records included communication between Dr. Greene and Mr. Barrick’s attorney. Sodexho moved to enforce the subpoena which was granted by the trial court. An interlocutory appeal followed.
The Superior Court reversed. Its analysis focused on Pa.R.C.P. 4003.3 which protects from discovery counsel’s work product and 4003.5 which limits expert discovery. Discussing Rule 4003.5, the Superior Court reiterated the Supreme Courts’ interpretation of the rule in a prior case which held that, in Pennsylvania, expert discovery absent cause shown, is limited to the interrogatories described in Pa.R.C.P. 4003.5(a)(1) .
The Superior Court went on to hold that written communication between counsel and an expert witness retained by counsel is not discoverable as it is protected under the work-product doctrine of Pa.R.C.P. 4003.3. The only exception to this blanket prohibition arises where the party propounding the discovery can show that the communication itself is relevant.
Justice Correale F. Stevens, having heard the case while a member of the Superior Court, was unable to participate in the Supreme Court’s decision leading to the even division of the Court on the issue. In his opinion in support of affirmance, Justice Baer noted that the Civil Procedural Rules Committee has proposed an amendment to Pa.R.C.P. 4003.5 barring discovery of all communication between an expert and the counsel retaining him or her effectively codifying the Superior Court’s holding in this case.
The holding (and the rule amendments if adopted) bring Pennsylvania closer to prevailing Federal practice. F.R.C.P. 26(b)(4)(C) prohibits discovery of communications between a party’s attorney and expert witness with three exceptions. Communications relating to compensation paid to the expert; communications identifying facts or data provided by a party’s attorney which the expert considered in reaching his or her conclusions; and, communications identifying assumptions provided by a party’s attorney relied on by the expert in reaching the opinion are all discoverable.
Because Justice Stevens voted with the majority in the Barrick case, it seems reasonable to expect that the Supreme Court will exercise its rulemaking power to adopt the rule proposed by the Civil Procedural Rules Committee prohibiting discovery of attorney-expert communications. Until it does, the Superior Court’s opinion in Barrick controls the issue and in all but the most unusual case will prohibit discovery of attorney-expert communications.