Important Pennsylvania Decision Protects From Discovery Communications Between Attorneys and Their Experts

In the medical malpractice case of Barrick v. Holy Spirit Hospital, 2011 PA Super 251, the Pennsylvania Superior Court, in an en banc decision, held that written correspondence between an attorney and an expert medical witness is not generally discoverable, pursuant to Rules 4003.5 and 4003.3 of the Pennsylvania Rules of Civil Procedure.

Rule 4003.5(a)(1) states that, through interrogatories, a party may discover the name of the opponent's expert witness and the "substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." These interrogatories cannot be served directly upon the expert witness, but rather may only be sent to the party retaining the expert.

In Barrick, the defendant attempted to discover the correspondence between plaintiff's counsel and plaintiff's expert by serving a subpoena on the witness, who was also a treating physician. The court concluded that the subpoena exceeded the scope of 4003.5(a)(1) in both form and substance. First, it was wrong in form because the subpoena was sent directly to the expert rather than to counsel for the party who had retained the expert. Second, it was wrong in substance because it sought production of the written correspondence between the attorney and the expert, which contradicts the language in 4003.5(a)(1) allowing discovery only of the opinions and facts about which the expert will testify during trial.

The court also found that the subpoena sought information protected by the work-product doctrine under Rule 4003.3, which prohibits discovery of the "mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or . . . legal theories." The court concluded that the correspondence between an expert and an attorney qualifies as attorney work product and is not discoverable under Rule 4003.3

For further information about the important Barrick v. Holy Spirit Hospital decision, or other litigation discovery issues, please contact Craig Murphey or any other member of MacDonald Illig's Insurance Practice Group.