Tuesday, September 21, 2010

Attorney-Expert Witness Correspondence Held Discoverable

UPDATE 11/30/2010: The Superior Court has withdrawn the opinion and granted en banc review in Barrick v. Holy Spirit Hospital.

On September 16, 2010, the Pennsylvania Superior Court held that correspondence between an attorney and an expert witness who the attorney intends to call at trial is discoverable. Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 2010 PA Super 170 (Sep. 16, 2010). This will come as quite a shock to attorneys who believed that they were free to discuss strategy with expert witnesses without the fear of it ending up in enemy hands.

The decision attempted to strike a balance between the Pennsylvania attorney work-product rule, Pa. R. Civ. P. 4003.3, and the rule providing for discovery of the knowledge and opinions of experts, 4003.5. The Court announced a "bright line" rule that "attorney work-product must yield to the disclosure of the basis of a testifying expert’s opinion." The party opposing discovery argued that the trial court should at the very least perform in camera review of the correspondence. The Superior Court held this "unnecessary."

This case is a personal injury action, actually arising from a cafeteria chair collapsing beneath the guy sitting in it. It's amazing how random little events can lead to major developments in the law! But nothing in the opinion limits the holding to injury actions, so it's an important decision for all lawyers (yes, this is the tenuous employment law tie-in for the day), including employment lawyers.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.