On November 23, 2011, an en banc panel of the Pennsylvania Superior Court in Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 2011 PA Super 251 (Pa. Super. Ct. 2011), overturned a previous panel decision rendered by the court in the case, and barred defendants’ attempt to enforce a subpoena seeking confidential communications, which very likely were sensitive in nature.

In the underlying case, defendant had subpoenaed plaintiff’s expert to obtain the expert’s file, which included communications between the expert and plaintiff’s counsel. When plaintiff’s expert refused to provide the materials, defendant filed a Motion to Enforce the Subpoena and the trial court performed an in camera review. The trial court determined that the communications could have “materially impacted” the expert’s formulation of his expert report, such that the information was discoverable and the subpoena enforceable. Plaintiff appealed, and a panel of the Superior Court affirmed the trial court ruling.

In a very rare occurrence, the Superior Court granted re-argument en banc and reversed itself, holding that the subpoena was improper under the Pennsylvania Rules of Civil Procedure because: (1) it exceeded the scope of discovery as provided by Rule 4003.5(a)(1); (2) it was an improper method of obtaining additional expert discovery requiring defendant to “show cause” to the Court pursuant to Rule 4003.5(a)(2) why such information was needed; and, (3) it violated Rule 4003.3, which provides that communications between attorneys and their experts are privileged and non-discoverable.

Notably, the initial court’s holding appeared to return to the “old” standard and method of expert discovery in Pennsylvania; however, the en banc court’s reversal of that holding seems to provide carte blanche protection that may embolden litigants, and ultimately require additional motions to obtain what previously was routine expert discovery.

Additionally, Barrick may be raised to block or hinder counsel’s ability to review expert files after the expert gives testimony on direct examination either at trial depositions or at trial, possibly, affecting the cross-examination of the expert. At a minimum, attorneys are now more freely able to communicate with experts with less fear that this information may be obtained through discovery. Under Barrick, attorneys must “show cause” for discovery of attorney-expert communications; however, it is difficult to “show cause,” a difficult standard to reach.. Thus, Barrick opens the door for counsel to take a more commanding role in directing the composition and content of expert reports, rather than merely requesting that the expert prepare one.

What It Means to You

Issues involving expert selection and discovery are now more important than ever, as attorneys need not produce an expert’s file or communications between attorney and expert absent an opposing party “showing cause.” Thus, the potential for abuse by attorneys to direct or unduly influence experts has taken center-stage.

Enormous in effect, Barrick provides an overly inclusive iron curtain of protection for communications between attorneys and experts, and emphasizes the importance of a plan of attack for discovery since now the court may require a Motion to Show Cause prior to issuing a subpoena for the records of plaintiff’s treating physicians if the treating providers are identified as experts.

Furthermore, this decision seems to favor court involvement for in camera reviews and will likely increase litigation costs, particularly for defendants who have more incentive to uncover just how much of the language contained in plaintiff’s expert report mimics that of plaintiff’s counsel.