Pennsylvania Supreme Court Upholds and Favors Bright Line Rule Protecting Communications Between Attorneys and Testifying Experts

On April 29, 2014, the Supreme Court of Pennsylvania issued its opinion in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 91 A.3d 680 (Pa. 2014), and addressed the issue of the scope of discovery and attorney work product under Pennsylvania's rules of civil procedure, particularly the discovery of communications between attorneys and testifying expert witnesses.  The court adopted a bright line rule that communications between attorneys and testifying experts are protected from disclosure.

The case was a personal injury action in which the plaintiff suffered serious injuries when a chair in which he was sitting in a hospital cafeteria collapsed. In response to defendants' subpoena requests, the treating physician withheld records that the physician contended were not created for treatment purposes. When the defendants sought to compel production, the plaintiffs designated the physician as a testifying expert and claimed that all communications between the physician and counsel were privileged. The trial court, after an in camera review, ordered the communications produced. 

The plaintiffs appealed to the Superior Court, where a three judge panel first upheld the trial court's decision, concluding that the defendants were entitled to discover whether the expert's conclusions were his own or guided by counsel. But on the plaintiffs' petition, an en banc panel of the Superior Court concluded that the communications at issue were not subject to discovery and that the defendants had not met their burden of showing "cause" as to why the records should be produced, as required by Rule 4003.5(a)(2). And although the court noted that an in camera review might be necessary to determine which aspects of the communications constituted protected material, the court broadly ruled that the communications were protected from disclosure as attorney work product under Rule 4003.3. Judge Bowes of the Superior Court, in a dissenting and concurring opinion, parted ways with the majority regarding a blanket protection for correspondence between counsel and an expert witness. 

The defendants requested that the Pennsylvania Supreme Court review whether the Superior Court's interpretation of Rule 4003.3 improperly provided absolute protection to all communications between a party's counsel and their trial expert.   The defendants' key issue with the Superior Court's blanket ruling was the issue noted by the first panel of the Superior Court: being able to determine whether an expert's opinions and conclusions were the expert's independent conclusions or whether the opinions and conclusions had been guided by counsel.  

After review of the applicable rules, their history, and purpose, the court acknowledged that while some communications between counsel and experts might solely contain the attorney's mental impressions and legal theories, most would have substantial overlap and intermingling of work product and facts that trigger the attorney's work product. The court further stated that attempting to extricate the work product from the related facts would add unnecessary delay and difficulty to the discovery process, and redaction following in camera review would result in needless litigation, adding expense to the parties and tying up the trial courts. The court found it preferable to err on the side or protecting the attorney work product, given the tools such as cross-examination at trial and interrogatories that opponents could use to find out further information, where appropriate. Accordingly, the court affirmed the Superior Court's bright-line rule and holding.  

While this decision is, of course, jurisdiction-specific and is based on the court's analysis of Pennsylvania's rules of procedure, it will be interesting to see if more courts take - and more attorneys urge - a similar bright-line approach to communications between attorneys and experts and add a prong to the analysis regarding the cost, time, and effort related to in camera review of communications parties believe are privileged and protected.