2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

4. Civil Procedure Case Lawa. Discovery of Expertsi. Barrick v. Holy Spirit Hosp. of the Sisters of ChristianCharityIn Barrick, 5 A.3d 404 (Pa. Super. 2010), the Superior Court of Pennsylvania consideredwhether correspondence between attorneys and experts was beyond the scope of permissiblediscovery.In this issue of first impression, the Court reviewed the Court of Common Pleas decisionthat the correspondence was discoverable. The Court concluded that the situation in Barrick wasnearly identical to that of Pavlak v. Dyer, 59 Pa. D. & C.4 th 353 (Pike Cty. Ct. Com. Pl. 2003).Plaintiff sought to use its examining physician as its expert witness at trial. Defendant thensought discovery of the written correspondence between plaintiff’s counsel and the expert. TheCourt concluded that Pavlak was useful as guidance, but created its own bright-line rule inconcluding that “attorney work-product must yield to the disclosure of the basis of a testifyingexpert’s opinion.” Barrick, at 12. The Court justified this decision with the rationale that partiesneed to know the basis for an expert’s professional conclusions and to what extent counsel’sopinion has swayed the expert’s anticipated testimony. Furthermore, the Court concluded thatbecause of this newly created rule, “in camera inspection[s] would be duplicative and a waste ofjudicial resources.” Id. at 14.Put another way, the discovery of the basis of expert opinion under Rule 4003.5(a)trumped the attorney work-product protection under R. 4003.3.It should be noted that Barrick was the opposite of new Fed. R. 26(b)(3).The Superior Court withdrew its first opinion in Barrick and granted reargument.2010 Pa. Super. LEXIS 3833 (Pa. Super. Nov. 19, 2010). On reargument, the SuperiorCourt departed from the conclusion reached in its withdrawn opinion. It held:In closing, based upon our interpretation of the PennsylvaniaRules of Civil Procedure, drawing upon the plain language ofthe rules and the case law of this jurisdiction, we conclude thatthe trial court committed an error of law in granting Sodexho'smotion to enforce. As our Supreme Court has previouslydetermined, other than the interrogatories described inPa.R.C.P. 4003.5(a)(1), the Rules of Civil Procedure requirethat a party show cause to obtain further discovery from anexpert witness. Cooper, supra at 492. Sodexho in this casefailed to make any such showing. Thus, we hold that Sodexho'ssubpoena seeking documents from Appellants' expert witnesswas beyond the scope of Pa.R.C.P. 4003.5, without firstshowing cause as to why such a discovery request was needed.141