While silence is sometimes regarded as being golden, the Superior Court’s recent ruling, on November 23, 2011 in Barrick v. Holy Spirit Hospital, involving the delicate issue of counsel communications with expert witnesses, thankfully will not stand for that proposition, with the Superior Court holding, in an Opinion authored by Justice Mundy, that counsel communications with expert witness are not discoverable, absent there being a showing of cause under Pennsylvania Rule of Civil Procedure 4003.5(a)(1) and (2).
So holding, the Court determined that “any mental impressions or legal analyses posited by … counsel and contained within the sought correspondence constitute attorney work product”, which are not discoverable under Pennsylvania Rule of Civil Procedure No. 4003.3.
By way of unfamiliar background, Barrick involves the appeal of the Plaintiffs, seeking to strike a trial court order that had granted the motion of defense counsel, to enforce a subpoena issued for the Plaintiff’s medical records. The Plaintiffs had filed a lawsuit against the Defendant, Holy Spirit Hospital, alleging that the Plaintiff, Carl Barrick, had sustained personal injuries, to include severe spinal injuries, when a chair that he was sitting on had collapsed in the cafeteria of the Hospital on March 29, 2006.
The Plaintiffs filed suit against four Defendants, and one Defendant, Sodexho, had served the Plaintiff’s treating physician with a subpoena, requesting a “complete copy of the entire medical chart”. No objection was filed to that subpoena by the Plaintiffs.
A response to the subpoena was then produced, to include the Plaintiff’s medical records, although records that were “not created for treatment purposes” were not produced.
Sodexho sought to enforce the subpoena, seeking production of all records in the Plaintiff’s medical chart.
The medical practice, Appalachian, against whom the subpoena was sought to be enforced, filed a response to the Motion to Enforce Subpoena, contending that it had fully responded to the subpoena, and that the additional records being sought by Sodexho were records protected under Pennsylvania Rule of Civil Procedure 4003.3 (trial preparation materials), as well as under Pennsylvania Rule of Civil Procedure 4003.5.
Specifically, Appalachian contended that the subpoena sought “trial preparation material”, as well as communications between Plaintiff’s counsel and expert witnesses, excluded under Pennsylvania Rule of Civil Procedure 4003.5.
Following oral argument on that issue before the trial court, the trial court reviewed the documents and materials that Appalachian sought to exclude from production, with the trial court then granting Sodexho’s Motion to Enforce the subpoena.
The Plaintiffs then filed a timely notice of appeal, with the Superior Court first addressing the issue of whether the Plaintiffs had waived their ability to challenge the trial court’s order granting the Motion to Enforce the subpoena, as the Plaintiffs had not filed any objections to the subpoena, as required under Pennsylvania Rule of Civil Procedure 4009.21.
Since the subpoena issued by Sodexho was specifically addressed to the medical practice where the Plaintiff’s treating expert medical witness was associated, the subpoena, at least on its face, did not appear to be seeking discovery pertaining to an expert witness, and, at least, facially, sought production of medical records that are permitted to be subpoenaed under Pennsylvania Rule of Civil Procedure No. 4009.21.
Finding that there was no reason why the Plaintiffs would have anticipated that Sodexho sought to improperly discover correspondence between their counsel and their expert medical witness, using the subpoena addressed to Appalachian, the Superior Court held that the Plaintiffs had not waived their right to challenge the trial court’s granting of the Motion to Enforce subpoena.
Turning to the ultimate issue before the Superior Court, being whether the Pennsylvania Rules of Civil Procedure allow discovery of the written correspondence between counsel and an expert witness retained by counsel, the Superior Court held that Pennsylvania Rule of Civil Procedure 4003.5 restricts the scope of all discovery directed at non-party witnesses retained as experts in trial preparation. See Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006).
This Rule of Civil Procedure allows a party to submit Interrogatories to any other party, for purposes of identifying a party’s expert witnesses, as well as “to have these checks or so identified stayed the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion”.
Cooper Interrogatories must be served upon the party retaining the expert as a witness, and not directly upon the expert witness.
On review of the trial court record and its order granting the Motion to Enforce Subpoena, the Superior Court found that Sodexho had intended to use its subpoena to obtain written documents directly from an opposing party’s expert witness. The subpoena was sent directly to Appalachian, and it sought written communications between the Plaintiff’s expert medical witness and Plaintiff’s counsel.
The Superior Court held that Pennsylvania Rule of Civil Procedure 4003.5(a)(1) does not allow this form of discovery, resulting in the Superior Court reversing the trial court’s granting of the Motion to Enforce.
Moreover, the Superior Court agreed with the Plaintiffs that the trial court’s discovery order had contravened Pennsylvania Rule of Civil Procedure 4003.3, as it resulted in the disclosure of communications between counsel and an expert witness, with the communications being protected under the work product doctrine set forth in Pennsylvania Rule of Civil Procedure 4003.3.
Citing the explanatory comment to Pennsylvania Rule of Civil Procedure 4003.3, the comments indicate
“The underlying purpose of the work-product doctrine is to shield the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client’s case. The doctrine promotes the adversary system by enabling attorneys to prepare cases without fear that their work-product will be used against their clients.”
In effect, this rule “immunizes the lawyer’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories, and nothing more.”
Recognizing that the “work product privilege is not absolute”, a limited exception to the work product doctrine only arises in situations when the work product itself is relevant to the issue in dispute, such as in an action for malicious prosecution, abuse of process, or bad faith-based litigation.
Concurring/Dissenting Opinions
Justice Bowes issued a concurring and dissenting Opinion, agreeing with the majority’s Opinion, precluding the use of the subpoena directed to the expert to obtain documents in the expert’s file, although Justice Bowes did not agree with the majority’s Opinion concerning the work product protection extended to communications between the attorney and expert.
Practically Speaking
Without question, this is an important ruling by the Superior Court, as it is a ruling that sets boundaries, for all sides, in the battle lines that are drawn over attorney-expert communications, and discovery sought of expert witnesses.
Relying upon Barrick, it is axiomatic that careful attention must be paid whenever an opponent seeks discovery of a party’s expert witness, the same being no less true when an expert witness is being called to testify, either at deposition or trial, as to the documents and materials produced in anticipation of the witness’s testimony, in avoidance of either confusion or improper discovery.
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