The Pennsylvania Superior Court recently confirmed that
attorneys appearing in Pennsylvania state court must always be wary
that their communications with testifying experts could wind up in
the hands of their adversaries. In the case of Barrick v. Holy
Spirit Hospital, No 1856 MDA 2009, 2010 WL 3584461 (Pa. Super.
September 16, 2010), Pennsylvania's intermediate appellate
court held that communications between an attorney and a testifying
expert are not protected from discovery by the attorney
work-product doctrine.
The issue in Barrick began when the plaintiff's
testifying expert refused to turn over written communications with
the plaintiff's lawyer in response to a subpoena. Defendants
filed a motion to enforce the subpoena, arguing that the
communications were relevant and discoverable. Plaintiff opposed
the motion, arguing that the communications contained privileged
attorney work-product in the form of "'legal theories,
trial strategy, and 'tactics as to how the [expert]
opinions...will be framed for the purposes of negotiation and
trial.'" Barrick, 2010 WL 3584461 at *3. The
trial court ruled in favor of defendants and ordered production,
expressly fashioning a "bright line" rule that all
attorney correspondence with a testifying expert is discoverable.
See December 15, 2009 opinion by Judge Hess of the Court of Common
Pleas of Cumberland County. Plaintiff immediately appealed.
On appeal, the Superior Court recognized that the issue presented a
conflict between two rules of Pennsylvania civil procedure
– Pa.R.C.P. 4003.3, which prohibits discovery of
materials commonly referred to as attorney work-product, and
Pa.R.C.P. 4003.5, which permits discovery of the facts and opinions
underlying a testifying expert's conclusions. Barrick,
2010 WL 3584461 at *4. Noting that the attorney work-product
privilege "is not sacrosanct," the Superior Court held
that the "attorney work-product doctrine must yield" to
the expert discovery rule. Id. at *5. The court reasoned
that the defendants were entitled to discover information that
would enable them to ascertain the extent to which the expert
witness' opinions were influenced by counsel. Id.
Although the Superior Court arguably fell just short of fashioning
a bright-line rule that all attorney-expert correspondence is
discoverable, the Superior Court agreed with the trial court that
an in camera inspection "would be a waste of judicial
resources," given its holding that the expert discovery rule
trumps the attorney work-product privilege. Id. at
6.
Even though only written communications were at issue in
Barrick, the Superior Court also expressly stated that the
attorney work-product privilege did not protect oral communications
between a lawyer and a testifying expert either. The court opined
that an expert's oral communications with an attorney would be
a proper target of cross-examination at trial. Id. The
Superior Court's focus on cross-examination at trial was made
in recognition of the fact that the Pennsylvania rules do not
ordinarily permit an expert to be deposed.
The scope and effect given to the Barrick decision remains
to be seen as trial courts begin to digest its holding. Will
Barrick be extended to require production of lawyer-expert
communications that reveal not just attorney work-product, but
client communications as well? Will trial courts now require
testifying experts to disclose the contents of oral communications
with an attorney in response to expert interrogatories? In light of
the uncertainty, and out of an abundance of caution, counsel in
Pennsylvania would be wise to limit their conversations and
communications with an expert witness to non-privileged facts of
record.
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