Psst, can I stop whispering in your ear and just email you instead? Its work-product.
Psst, can I stop whispering in your ear and just email you instead? Its protected as work-product.

Many of my cases involve the use of expert witnesses; individuals hired to review and testify about a specific issue or topic. Usually they are financial experts whose job is value a particular asset such as a business, while other experts could be psychologists conducting a custody evaluation. In other areas of law, there are individuals qualified as experts in virtually every conceivable topic and issue.  Whatever the underlying issue of a case, it is reasonable to assume there is an expert out there prepared to testify about it.

Consequently, communication between an attorney and the expert working on the case is critical and often encompasses trial strategy. It is vitally important that the expert and the attorney can openly and easily communicate about the case.  Not too long ago, however, this relationship and communication became subject to discovery in the case of Barrick et al. v. Holy Spirit Hospital of the Sisters of the Christian Charity et al.  At the time, the trial court ruled that expert testimony was subject to Pennsylvania’s liberal discovery rules and should be turned over to the other side. This was a radical departure from commonly held beliefs and practices protecting this communication and created significant consternation among attorneys.

The Superior Court heard the case in 2011 and overruled the trial court’s decision and barred the production of communication between a surgeon serving as an expert and the plaintiff’s attorney in a personal injury case. Attorneys across the state breathed a sigh of relief; they could actually email their experts again.

Recently, any ambiguity was mostly removed when the Pennsylvania Supreme Court upheld the Superior Court’s decision through a split, 3-3 decision (an evenly divided court results in affirmation of the Superior Court decision). I say mostly because it was a 3-3 split, but in affirming the decision, three justices created a bright-line rule denying the production of expert/attorney communication.

The argument that communications with experts did not fall within the work-product doctrine of confidentiality and were critical for counsel to the cross-examination and critiquing by counsel was not accepted by the Court. The Court felt that by having the opportunity to cross-examine the expert, there was sufficient opportunity to attack his/her opinion without having to divulge communications between the expert and attorney.

This is an important decision in Pennsylvania and affects every litigator, regardless of area of expertise and will allow for experts and attorneys to freely exchange ideas without fear that they will turn into trial exhibits.

Photo Credit: www.health.com

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty

As lawyers we are commonly asked to forecast judicial outcomes.  What will a court do given a stated set of facts?  Of course, it is rare for facts to be the same in the eyes of two adverse parties but even when the facts are agreed, lawyers and judges sometimes cannot agree on the law.  Thus begins the story of Carl Barrack and his suit against Sodexho and the hospital that treated him.

This is not a family law case but the November 23 ruling of the Superior Court has implications for family law and all other forms of civil (non criminal litigation).  In this decision the Superior Court reversed itself and a prior ruling by a trial court in Cumberland County.

 

Carl Barrack sustains injuries when a chair he was sitting in suddenly collapsed.  He sued the business where the chair was located and the physicians who treated him.  Under rules regulating pre-trial discovery it is fairly common and understood that the defendants he sued for his injuries are entitled to secure copies of his medical records.  In this case the defendants did precisely that. The rules allows Mr. Barrack and his attorney to object any subpoena issued by other parties to the case.  In this case the demand was for all records relating to Mr. Barrack.  It was directed to the treating physician’s employer, a hospital.  Because this was fairly routine and otherwise not the subject of objection by Barrack, the hospital produced the records of the treating physicians to the extent they reflected what was Mr. Barrack’s course of treatment from the time of admission.

 

When it published these records in accordance with the subpoena the hospital noted that Barrack’s physician had been identified as Mr. Barrack’s expert witness concerning his injuries and that records of reports and correspondence generated between the treating physician and Barrack’s lawyer were not being produced because they were not medical records concerning treatment but expert opinions related to either the nature or extent of Barrack’s injuries.

 

The defendant’s were not content with this answer.  No objection to the subpoena had been filed.  Therefore, they asserted that any objection was waived and that the trial court should compel production of all records including correspondence between the expert and Barrack’s attorney.

The trial court agreed despite the argument made by Barrack’s attorney that communications between a lawyer and his client’s expert were not permitted under the law.  The matter was appealed to the Superior Court which heard the case because it involved an assertion of privilege which, if not heard could forever harm the Plaintiff’s case.

 

A three judge panel of the Superior Court agreed with the trial court largely on the basis that the interests of justice should permit open discovery of how expert opinions had been formed.  This was contra to wide held understandings in the legal community and certainly many lawyers and experts held candid correspondence in their files concerning how an expert opinion was received.

Because this was so controversial, the parties sought immediate review by a nine judge panel of the Superior Court.  That request was granted in November, 2010 approximately sixty days after the three judge panel of the same court affirmed the trial court.

 

This panel decision prompted tremendous controversy.  The prevailing view had been that communications between a lawyer and the expert witness were not subject to inspection or inquiry. Many litigation attorneys trembled in fear that communications that they had made in pending cases with experts would now be subject to scrutiny.  These letters had been written before Barrack I was decided.

 

The case was complicated by the fact that the expert was also the treating physician.  It is clear that the physician’s treatment records are subject to review in a case for personal injuries.  But the use of the same physician as the expert witness is more the exception than the rule in this area of practice.

 

The decision is Barrack II reversed the panel decision and is a strict construction of Pennsylvania Rule of Civil Procedure 4003.5. That rule strictly limits what access a party to litigation gets to another party’s expert. The entitlement set forth in the rule is to either answers to interrogatories regarding who the expert is and what is the substance of the expert’s findings or a copy of the expert’s report. Anything beyond that is secured either by agreement or through a separate court order based upon cause shown. Pa. R.C.P. 4003.5 (a)(3). Had the Supreme Court intended for litigants to secure more by right, they would have made the rule more permissive.

 

The argument was asserted by the defense attorneys that the plaintiff’s failure to object to the subpoena was waiver of the rights set forth under the rule. The Superior Court rejected this as well noting that when the subpoena was issued it was not clear to the party issuing it that the physician had a dual role as both treating physician and expert witness. The plaintiff was within his rights to assume that the discovery material would be limited to treatment records.

 

The decision is in a civil case but it has direct bearing on family law cases involving experts of all stripes. An expert report in family law is governed by the same rule as in personal injury cases.