By Kevin L. Connors, Esquire

With apologies to the Immortal Bard, as well as to the most famous and eloquent soliloquy in the English language, resonating in existential self-reflection, the Pennsylvania Supreme Court’s recent Decision in Barrick v. Holy Spirit Hospital requires consideration on several Vulcan mind-meld levels, to include the scope of discovery, what constitutes an attorney’s work product, and an attorney’s disclosures to Expert Witnesses.

The Supreme Court issued an Opinion, supporting affirmance of the underlying Superior Court’s disposition of this same issue in a Decision circulated by the Superior Court on November 23, 2011, the citation being 32 A.3d800 (Pa. Super. 2011), with the Supreme Court, in a divided 3-3 Ruling, effectively affirming the Superior Court’s Ruling, which held that a balance must be struck between the competing policies of promoting the truth-seeking process through liberal discovery, while protecting attorney-client work product from discovery, in order to encourage efficient and effective client representation.

In affirming and not overruling the underlying holding of the Superior Court, the Supreme Court has created a bright-line rule denying discovery of communications between attorneys and Expert Witnesses, the same being a very important holding in the context of any civil actions involving the party-retention of Expert Witnesses.

Barrick involved a personal injury action that resulted from injuries that the Plaintiff allegedly sustained when a chair that he had been sitting in, in the cafeteria of the Holy Spirit Hospital, collapsed, with the Plaintiff then filing suit against two Defendants, including the Hospital and its Cafeteria Manager.

During the discovery phase of the case, the Defendants served a subpoena to obtain the records, including all relevant correspondence, of the Plaintiff’s treating orthopedic surgeon. The treating surgeon was Dr. Thomas Green.

Subsequently, the Defendants again requested updated records from Dr. Green’s practice, with Dr. Green producing some records, but, on instruction from Plaintiff’s counsel, withholding other records, on grounds that “certain records of this office that pertain to (Plaintiff Carl Barrick), but were not created for treatment purposes.”

Taking offense, the Defendants filed a Motion to Enforce the Subpoena, with the Plaintiffs, through counsel, objecting to the Subpoena, on grounds that they were designating Dr. Green as their Expert Witness under Pa.R.C.P. 4003.5, which governs discovery of Expert Witnesses.

In short, the Plaintiffs contended that Dr. Green was their Expert Witness, and all communications between counsel and the Expert constituted privileged material under Pa.R.C.P. 4003.3 and 4003.5.

Rule 4003.5 provides:

Rule 4003.5. Discovery of Expert Testimony. Trial Preparation Material

(a)                Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

(1)               A party may through interrogatories require

(a)                any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

(b)               the other party to have each expert so identified state 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 party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert.

(2)               Upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.

(3)               A party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, except a medical expert as provided in Rule 4010(b) or except on order of court as to any other expert upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.

In the course of considering the objections raised by the Plaintiffs, the Trial Court reviewed Dr. Green’s file materials in camera, with the Trial Court ultimately granting the Defendants’ Motion to Enforce the Subpoena.

In the course of granting the Motion to Enforce, the Trial Court issued an Opinion, holding that “where an Expert is being called to advance a Plaintiff’s case and achieve in the nature of the Expert’s testimony may have been materially impacted by correspondence with counsel,” the Trial Court believed that the Defendants had satisfied the “cause shown” requirement for additional discovery, effectively extending beyond the Expert’s recitation of facts and opinion, to determine how the Expert might have been influenced by the legal theorem advanced by counsel.

Appealing to the Superior Count, the Plaintiff initially asserted that the issue was subject to immediate Appeal as a Collateral Order, with the Plaintiffs arguing that they should not be required to disclose records beyond those developed for diagnosis and treatment, and that any letters and emails that might have been exchanged between their counsel and their Expert Witness, Dr. Green, were protected from discovery, as those communications had been prepared in anticipation of litigation, and the communications specifically addressed Dr. Green’s role in serving as an Expert Witness in the Plaintiffs’ case-in-chief.

Initially, a Panel of three Judges of the Superior Court affirmed the Trial Court’s Order, concluding that the Defendant had been entitled to discover whether the Expert’s conclusions were his own, or were those which were guided or influenced by Plaintiffs’ counsel.

Seeking reconsideration, an en banc Panel of Superior Court granted Plaintiffs’ Petition, reversing the Trial Court, in the course of which the Superior Court held that the records sought by the Defendants, being the communications between Plaintiffs’ counsel and their Expert Medical Witness, were “beyond the permissive scope” of Rule 4003.5(a)(1), as that Rule specifically provides for Expert Discovery to be conducted through Interrogatories, as to the “substantive facts and opinions to which the Expert is expected to testify and a summary of the grounds for each opinion”.

The Superior Court also concluded that the Defendant had failed to satisfy Rule of 4003.5(a)(2), allowing for additional discovery, as the Defendant had not demonstrated “cause shown”, prior to serving the Subpoena on the Plaintiff’s Expert Medical Witness.

The Superior Court also held that Rule 4003.3 shielded the attorney work product from disclosure, holding, in reliance upon Rule 4003.3, that “discovery shall not include disclosure of the mental impressions of a parties’ attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.”

Rule 4003.3, titled “Scope of Discovery, Trial Preparation Material Generally”, provides:

Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.

The Defendant then appealed to the Supreme Court, arguing that Pennsylvania had a long history of liberal discovery to prevent unfair surprise at Trial. The Defendant contended that the Pennsylvania Rules of Civil Procedure generally permit a party to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending litigation….”

The Defendant further argued that an attorney providing a Trial Expert with facts or other information, or telling or suggesting to the Expert what to say, should not be entitled to the protection of a privilege, as it does not constitute attorney work product, and should not, therefore, have the protection that might otherwise be available under the Rules of Civil Procedure.

Moreover, the Defendant argued that the very restrictive, bright-line rule, proposed by the Plaintiff, and adopted by the Superior Court was “untenable because it does not balance the important competing rights and issues, in this case, attorney work product protection of a parties’ against the right to discover all of the facts and bases for a Trial Expert’s Opinion.”

Whether to Barrick or not, the Defendant argued that the Plaintiff’s proposal for a bright-line rule “ignores the reality that sometimes it is necessary for a party to discover the opposing party’s Expert file because there is cause to believe that the attorney provided the Expert with additional and different facts, data, assumptions or grounds, which are not in the Expert’s Report.”

In support of the Superior Court’s Barrick holding to be affirmed, the Plaintiff argued:

  • That communications between counsel and Expert Witness falls within the broad purview of the work product doctrine;
  • That “privileged ‘always’ trumps irrelevance”;
  • That the right to Pre-Trial depositions of Expert Witnesses in Pennsylvania is not allowed, notwithstanding it being allowed in Federal Courts;
  • That Rule 4003.1 requires that relevance always yield to privilege, citing “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter.”;
  • That the work product privilege is not a document privilege, but a thought process privilege;
  • That the purpose for Expert Witness preparation is to discover what theories might be advanced, as well as how to respond to cross-examination, neither of which were intended to be protected by the work product doctrine;
  • That the Federal Courts, in 2010, adopted a new Rule, barring discovery of attorney-expert communications, with very limited exceptions, to include discovery relating to an Expert’s compensation, and discovery related to identifying facts that the Expert relied upon, or assumptions the Expert has relied upon; and,
  • Plaintiffs also argued that the disclosure of communications between counsel and Experts undermines the purpose for retaining Experts, which is to allow counsel to secure a fuller understanding of the strengths and weaknesses of their cases, and to allow attorneys and Experts to play devil’s advocate, when preparing for Trial.

Holding that the issues in Barrick required the Court to interpret the interaction between Pa.R.C.P. 4003.3, governing the scope of discovery in attorney work product, and Pa.R.C.P. 4003.5, entitled “Discovery of Expert Testimony”, the Supreme Court, in an Opinion authored by Justice Baer, found that “allowing counsel to document legal theories without concern of disclosure encourages better representation of clients, which, in turn, benefits justice.”

Concluding that Rule 4003.3 amended the protection of documents that include disclosure of the mental impressions of a party’s attorney, to include their conclusions, opinions, memoranda, notes or summaries, legal research or legal theories, Justice Baer, with Justices Todd and McCaffery concurring, found that the documents that the Defendant sought disclosure of in Barrick were protected by Rule 4003.3’s work product provisions.

Recognizing that some documents might entail substantial overlap intermingling attorney work product with other facts that might not necessarily be entitled to the same protections of work product, Justices Baer, Todd, and McCaffery concluded that attempting to extricate the work product from the related facts would create unnecessary difficulty and delay in the discovery process, and that redaction through in camera review would result in needless litigation, adding substantial expense to the litigation process, in the course of which the Trial Courts would be consumed with being asked to resolve the issues of disclosure versus protection.

Moreover, Justice Baer, Todd and McCaffery found that there was no need for Courts to draw fine lines between what should or should not be redacted, when properly discoverable information could be obtained through other discovery methods, that would not intrude upon attorney work product, to include the utilization of Interrogatories under Rule 4003.5(a)(1).

No less true, an Expert’s opinion can always be directly challenged under cross-examination.

Finding it preferable to err on the side of protecting attorney work product, through a bright-line rule barring discovery of attorney-Expert communication being established, Justices Baer, Todd and McCaffery further noted that the Procedural Rules of Committee was working on an Amendment to Rule 4003.5, for purposes of embracing an ambiguous bright-line rule, denying discovery of all attorney-Expert communications, such that “a party may not discover the communications between another parties’ attorney and any Expert who is expected to testify as an Expert Witness at Trial regardless of the form of communication.”

The proposed Rule referred to by Justices Baer, Todd and McCaffery in their Barrick Opinion has now been adopted by the Supreme Court, upon recommendation of the Civil Procedural Rules Committee, with the proposal having been published at 40 Pa.B. 7334 (December 25, 2010).

The Rule is to be adopted as law as of August 9, 2014.

The Rule amends Pa.R.C.P. 4003.5, consistent with the Barrick Opinion in favor of affirmance, negating a parties’ right to discover communications between a parties’ attorney and an Expert that is expected to testify as an Expert Witness at Trial.

In summary, balancing disclosure versus protection, Justices Baer, Todd and McCaffery voted in favor of protection, citing to there being other forms of discovery, to include Interrogatories and cross-examination that would permit a party to challenge an Expert Witnesses’ opinions.

OPINION IN SUPPORT OF REVERSAL

Justice Saylor authored the dissenting Opinion, joined by Justices Castille and Eakin, under which the dissent argued that the truth-determining process of a Trial necessarily requires meaningful cross-examination of Expert Witnesses, with dissent believing that effective cross-examination depends on Pre-Trial Discovery, to include the information upon which the Expert has relied upon in formulating their opinions, incorporated into their Trial testimony.

The dissent argued that this necessarily means that Pre-Trial Discovery must include the information upon which an Expert has relied upon in formulating their opinions, to include the information which an attorney has supplied to the Expert.

The dissent Opinion tracked the more liberal Federal Discovery Rules, supporting broader disclosure, in reliance upon the policy consideration of:

“First, the impact of Expert Witnesses on modern-day litigation cannot be overstated; yet, to some, they are nothing more than willing musical instruments upon which manipulative counsel can play whatever tune desired. This thought leads to the belief that Expert testimony is often the subject to improper influences, and that counsel can all too easily color the Expert’s opinion by simply controlling the Expert’s access to information. To compound the problem and the risk for abuse, Expert Witnesses testify regarding subjects outside the common knowledge of the finder of fact, so the jury cannot rely on the experience of common sense of its members to ferret out distorted evidence. Thus, full, effective cross-examination is critical to the integrity of the truth-finding process.”

Karn v. Ingersoll-Rand Co., 168 F.R.D. 633 (N.D. Ind. 1996).

Reviewing the balancing of competing interests that Federal Courts have weighed, in the course of resolving Discovery disputes, the dissent noted that several Federal Rulings that have allowed the following:

  • Holding that core work product is always protected, but factual work product can be discovered, in Bogosian v. Golf Oil Corporation, 738 F.2d 587 (3d Cir. 1984);
  • Permitting discovery of all communications from a lawyer to an Expert related to the Expert’s testimony “absent extraordinary showing of unfairness that goes well beyond the interests generally protected by the work product doctrine, in Intermedics, 139 F.R.D. 387;
  • Allowing full disclosure of documents reviewed by Expert Witnesses before their opinions are formed, in Boring v. Keller, 97 F.R.D. 404 (D. Colo. 1983);
  • Permitting discovery of work product that “could have influenced” the Expert, in SiLite, Inc. v. Creative Bath Prods., 1993 WL 384562.

Moreover, the dissent believed that shielding all communications, as the Opinion in Support of Affirmance would allow, without qualification, under the guise of protecting the attorney-work-product privilege, was too broad a brush stroke in terms of limiting Discovery that might be necessary to prepare for effective cross-examination of Expert Witnesses at Trial.

As of August 9, 2014, the Opinion in Support of Affirmance is scheduled to be adopted as a bright-line Rule, in the course of which communications between attorneys and experts will be limited within the scope of the Amended Rule to Pa.R.C.P. 4003.5.

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