Superior Court Of Pennsylvania Holds Communications Between Attorneys And Experts Are Not Discoverable

In a significant reversal of its prior opinion, the Superior Court of Pennsylvania, sitting en banc, has ruled in Barrick v. Holy Spirit Hospital1 that communications between an attorney and his or her expert witness are not discoverable under the Pennsylvania Rules of Civil Procedure.

In Barrick, plaintiffs Carl M. Barrick and his wife Brenda Barrick sued a number of defendants in the Court of Common Pleas of Cumberland County, Pa., contending that Carl Barrick suffered severe spinal injuries when a chair collapsed underneath him in the cafeteria of Holy Spirit Hospital. Defendants Sodexho Management, Inc., Sodexho Operations, LLC and Linda Lawrence (collectively, "Sodexho") served a subpoena on third party Appalachian Orthopedic Center ("Appalachian") for a complete copy of its medical chart regarding Mr. Barrick. While at Appalachian, Mr. Barrick was treated by Dr. Thomas Green, who was later designated as an expert witness for the plaintiffs. In response to the subpoena, Appalachian produced an updated set of medical records for Mr. Barrick, but informed Sodexho that "[c]ertain records . . . that pertain to Mr. Barrick but were not created for treatment purposes are not being produced." Sodexho filed a motion to enforce the subpoena, which the plaintiffs opposed, arguing that the materials not disclosed by Appalachian included communications between plaintiffs' counsel and Dr. Green and other documents related to such communications. The trial court granted Sodexho's motion and ordered disclosure of all materials in Appalachian's custody. Mr. Barrick appealed the decision to the Superior Court in October 2009.

In 2010, a three-member panel of the Superior Court affirmed the trial court's decision. However, in an 8-1 decision, the en banc panel of the court held that written materials generated by and related to any communications between plaintiffs' counsel and Dr. Green were not discoverable and thus were not subject to disclosure under the subpoena. The court first held that Pennsylvania Rule of Civil Procedure 4003.5, governing the discovery of "Expert Testimony and Trial Preparation Material," requires only that experts "state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion."2 Under prior Supreme Court of Pennsylvania precedent, discovery beyond these narrowly drawn categories requires a party to show cause for the discovery and to obtain a court order compelling the...