PA Superior Court Protects Attorney - Expert Communications from Discovery

An en banc panel of the Pennsylvania Superior Court has held that, absent a showing of cause, "the written communication between counsel and an expert witness retained by counsel is not discoverable under the Pennsylvania Rules of Civil Procedure.."  See Barrick v. Holy Spirit Hospital, 2011 Pa.Super.251 (11/23/11).  The short version- counsel are entitled to the written report only from an opposing expert, and not their written communications with opposing counsel, absent a showing of relevance and cause under Pa.R.C.P. 4003.5(a)(1). The underlying facts involved a treating physician who also agreed to serve as an expert witness.  The defendant issued a subpoena directly to the doctor, requesting treatment records, which were provided, along with a statement that documents which did not relate to treatment had not been produced. That lead to a Motion to Compel production of the withheld documents, and a hearing before the Court of Common Pleas.  The issue was framed as whether the withheld documents were privileged "trial preparation materials under Pa.R.C.P. 4003.3 or trial preparation materials in connection with communications between counsel for [plaintiff] and [their] expert witnesses in preparation for trial under Pa.R.C.P. 4003.5.”  The lower court reviewed the materials and ordered that they be produced, leading to the appeal. 

In deciding the issue, the Superior Court reasoned that the plain language of section 4003.5 (relating to expert disclosures) requires that  "a party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion."  Id. at p. 17. Thus, the court concluded that in order to obtain anything more than the foregoing, a "party must show cause and acquire a court order for the additional discovery" under Pa.R.C.P. 4003.5(a)(2).  Id..  As an additional ground for overturning the lower court, the Barrick court found that it was not permissible under the rules to issue a subpoena directly to an opposing expert for any materials, but that such requests are governed by Rule 4003.5 and must be directed to their retaining counsel.

The upshot of this opinion appears to be that in the majority of cases, counsel will never see any written communications between an opposing expert and counsel, unless they can establish that such information exists, is relevant and can show cause to a lower court to require its production - all presumably after discovery and expert deadlines have passed.   Unaddressed by the opinion is whether counsel has the right to direct a request to opposing counsel that their expert(s) bring "their entire file" to trial, for purposes of inspection during trial, and what, if any, penalty there would be if an expert fails to do so.  

NIED claims- Given new life by a split Pennsylvania Supreme Court

In Toney v. Chester County Hospital, an evenly divided Pennsylvania Supreme Court recently held that a plaintiff in a medical malpractice action may proceed with a negligent infliction of emotional distress cause of action without having sustained any physical impact, "where there exists a special relationship where it is
foreseeable that a breach of the relevant duty would result in emotional harm so extreme
that a reasonable person should not be expected to endure the resulting distress."  This is a change from prior case law which required that some physical harm have been suffered by the plaintiff, not just a purely emotional or psychic injury.

In the underlying case, the plaintiff-mother received an ultrasound while pregnant and was told her child was fine.  However, she later gave birth to a child with severe abnormalities.  Plaintiff-mother filed suit against her care providers, with her sole claim being that she suffered severe emotional distress as a result of being incorrectly informed that her fetus was fine based upon the ultrasound, as she was not prepared to see her child born with congenital abnormalities.                                                                                                                                                                                                                                            

The Chester County CCP dismissed the claim on PO’s, which was reversed by the Superior Court en banc.  In affirming the Superior Court, the three Justices in favor of affirmance wrote that an NIED cause of action can exist without any physical impact where a duty exists out of a particularly special relationship, such as a physician-patient relationship, and emotional distress is foreseeable.  These three Justices looked to the jurisprudence of other states that have reached a similar result, and noted that the NIED cause of action has evolved over time in Pennsylvania out of “humanitarianism.”   

Notably, Justice Orie Melvin did not participate in the case, as she sat on the Superior Court’s en banc panel and had authored a dissenting opinion, i.e. she was not in favor of the ruling which was affirmed by three of her Supreme Court colleagues. Additionally, the three dissenting justices believed that the Supreme Court should not be creating new causes of action in medical malpractice litigation, as the General Assembly is the proper body to do so.  Accordingly, should this issue reach the Supreme Court again, as presently constituted, there is a basis to conclude that a four justice majority may reverse the Toney decision.  (Thanks to Frank Camarota, Esq. of Christie Pabarue and Young, for help with the case analysis.)

 Here is a link to the Opinion of the Court: 

http://www.aopc.org/OpPosting/Supreme/out/J-7-2010pco.pdf