The Pennsylvania Superior Court has decided to reconsider its own recent ruling that made information considered by an expert fair ground for full discovery by other parties in the lawsuit.
Barrick v. Holy Spirit Hospital
On September 16, 2010, in the case of Barrick v. Holy Spirit Hospital, the Pennsylvania Superior Court decided that emails and letters between a defendant’s litigation expert and the defendant’s lawyer were “discoverable,” i.e. they had to be turned over to the other party in the lawsuit. These letters and emails included the lawyer’s trial strategies and tactics. Such communications were previously considered privileged and confidential attorney work product and therefore not subject to discovery.
The basis for the Court’s ruling was that all parties to a lawsuit should be entitled to discover the extent of a lawyer’s influence over an expert’s opinions in order to test the truthfulness of the expert’s conclusions, and to determine whether the lawyer directed the expert to reach certain conclusions, to disregard certain facts or take other facts into consideration.
The Superior Court’s landmark decision has come under severe fire during the few months following its rendering. The decision has been criticized for flying in the face of customary legal practice in Pennsylvania, and bucking the trend in federal courts that such communications are protected from discovery. In fact, the Federal Rules of Civil Procedure, which govern cases filed in federal court (as opposed to state court where the Barrick decision was made), were recently amended to specifically protect the exact same type of communications from discovery.
Impact of Decision
The Barrick decision, should it stand, will completely change the practice lawyers and litigation experts have been operating under: that communications between litigation experts and lawyers is work product that is not subject to discovery. The decision will make a lawyer think twice before bouncing ideas off an expert, and possibly prevent him or her from making comments or asking questions about a draft expert report, for fear that someone would obtain those communications and accuse the lawyer of writing the expert’s report for him.
Reconsideration of Decision
In an unusual change of events, the Court recently withdrew its decision and is going to hear re-argument on the case “en banc”, meaning that a larger panel of judges (up to nine) will hear the argument and participate in the decision as opposed to only the traditional three judge panel. A re-argument date has not been scheduled.
Although the Barrick case was a personal injury case, the Superior Court’s ultimate ruling will critically impact construction litigation cases as well. Experts, including architects and engineers, are frequently used in construction litigation cases and are often critical in developing and proving a party’s claims or defenses. Should the Barrick decision stand, attorneys will have to carefully manage their communications with experts to ensure that trial strategies, tactics and discussions regarding the strengths and weaknesses of their clients’ case are not subject to discovery.
We will continue to monitor the Superior’s Court’s argument schedule, and will keep readers advised on this important matter.