On April 29, 2014, the Pennsylvania Supreme Court, in a split decision, handed down the much anticipated opinion of Barrick v. Holy Spirit Hospital, which addresses the discovery of communications between attorneys and expert witnesses. As the Supreme Court was equally divided on the issue, the Superior Court’s prior en banc decision remains the law.
The previous Superior Court opinion addressed whether the Pennsylvania Rules of Civil Procedure should allow discovery of the written correspondence between counsel and an expert witness retained by counsel. Upon reviewing the rules regarding discovery of expert opinions and its interplay with the attorney work product doctrine, the Superior Court held that written communications between counsel and an expert witness retained by counsel are not discoverable. In short, the Superior Court determined that the Rules of Civil Procedure “immunizes from discovery” any work product contained within the correspondence between counsel and expert witnesses
What It Means to You
In the pre-suit investigation of cases where an expert may be indicated, thought should be given to retaining counsel early. Counsel can then retain the expert and, pursuant to the Barrick decision, communications between counsel and the expert will be protected from discovery. Conversely, communications between the client or claims adjuster and an expert would be discoverable as the attorney work product doctrine is not implicated under those circumstances.
Note that the Barrick case applies equally to plaintiffs and defendants. Thus, discovery of an expert’s prior draft reports or of the extent of opposing counsel’s influence over the expert’s opinion are now shielded from discovery, effectively eliminating this avenue of cross examination at trial.