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.