On April 29, 2014, an evenly divided Pennsylvania Supreme Court issued an order affirming the Pennsylvania Superior Court’s decision in Barrick v. Holy Spirit Hospital. The ruling means that communications between a party’s counsel and a party’s expert witness remain exempt from disclosure during discovery.
Barrick v. Holy Spirit Hospital
In this case, arising out of injuries sustained in March 2006 due to a collapse of a chair in a hospital cafeteria, there has been much consideration of the issue of whether documents containing communications between a party’s counsel and the party’s expert witness are “discoverable,” i.e., whether they have to be turned over to the other party in the lawsuit. Initially, the trial court concluded that the documents had to be turned over. The Superior Court went back-and-forth on the issue and ultimately a full panel of judges determined that communications between counsel and an expert are beyond the scope of expert discovery under Pennsylvania Rule of Civil Procedure 4003.5(a)(1), which generally only allows for discovery through interrogatories, or written questions, of the substance of the facts and opinions of the expert’s expected testimony and a summary of the basis for each opinion. In addition, the Superior Court held that such communications are protected by the attorney work product doctrine under Pennsylvania Rule of Civil Procedure 4003.3, which generally protects the disclosure of the mental impressions of a party’s attorney.
Following the Superior Court’s ruling, the Pennsylvania Supreme Court granted review limited to a singular issue: whether the Superior Court’s interpretation of Rule 4003.3 giving absolute work product protection to all communications between a party’s counsel and their trial expert was proper. After hearing argument, the Supreme Court, consisting of only six justices as opposed to the full panel of seven (one of the Justices had been part of the Superior Court panel that previously ruled on the case), was evenly split with three justices in favor of affirmance and three justices in favor of reversal. As a result, the Supreme Court entered an order on April 29, 2014 affirming the Superior Court’s ruling.
Justice Baer (joined by Justices Todd and McCaffery) wrote an opinion in support of affirmance (“OISA”) and Justice Saylor (joined by Chief Justice Castille and Justice Eakin) wrote an opinion in support of reversal (“OISR”). The OISA argued in favor of a bright-line rule barring discovery of attorney-expert communications. The OISA also noted that the Procedural Rules Committee has proposed an amendment to Pennsylvania Rule of Civil Procedure 4003.5 that would expressly adopt the bright-line rule. The OISR argued that the Superior Court’s conclusion that all communication between counsel and an expert is protected, regardless of the content, is unsupportable. Instead, the OISR would consider the content of the communication at issue rather than holding that all attorney-expert communications are exempt from disclosure.
Because the Supreme Court was evenly divided on the issue presented, neither the OISA nor the OISR constitutes precedent, and lower courts are not bound by either opinion. Instead, the lower courts are to follow the Superior Court’s decision because a decision of the Supreme Court that is not comprised of a majority of the court is not binding precedent. As a result, the Superior Court’s en banc opinion continues to control, and as a rule, communications between an attorney and an expert are not discoverable.
It will be interesting to see what impact this case may have on the proposed amendment to Rule of Civil Procedure 4003.5, which would codify the Superior Court’s bright-line rule. It will also be interesting to see if the Pennsylvania Supreme Court will look to hear another case in order to create precedent with a majority opinion. Regardless of what may occur, for now, communications between a party’s counsel and a party’s expert witness remain not subject to discovery.
We will continue to monitor developments regarding discovery between an attorney and an expert and keep readers advised.
Jennifer M. Horn is a Partner at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.
Matthew L. Erlanger is an Associate in the Construction Group.