Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity
91 A.3d 680
Pa.2014Background
- Carl and Brenda Barrick sued after a chair collapse; Dr. Thomas Green, the treating orthopedist, was later designated as a testifying expert. Defendants subpoenaed his records and correspondence.
- Dr. Green’s practice initially produced treatment records but withheld non-treatment records on Plaintiffs’ counsel’s advice as materials not created for treatment.
- Trial court, after in camera review, compelled production of counsel–expert correspondence, adopting a bright-line rule favoring disclosure when an expert’s testimony may have been materially impacted by counsel.
- A Superior Court panel affirmed; on rehearing en banc the Superior Court reversed, holding attorney–expert correspondence is protected under Pa.R.C.P. 4003.3 (work product) and not discoverable absent prior cause shown under Pa.R.C.P. 4003.5.
- This Court considered whether Pennsylvania’s rules create a categorical bar to discovery of communications between counsel and a testifying expert and was evenly divided, resulting in affirmance of the Superior Court by operation of law.
Issues
| Issue | Barrick (Plaintiffs) Argument | Sodexho (Defendants) Argument | Held |
|---|---|---|---|
| Are all communications between counsel and a testifying expert categorically protected from discovery under Pa.R.C.P. 4003.3? | Communications reflect attorney mental impressions/work product and must be protected to preserve trial preparation secrecy. | Work product is an exception to broad discovery and should be narrowly construed; correspondence may contain discoverable facts/assumptions relevant to expert opinions. | Majority would create a bright-line protection for counsel–expert communications; a plurality would bar disclosure (affirming Superior Court). (Court split.) |
| Does Pa.R.C.P. 4003.5 permit discovery of facts/opinions underlying an expert’s testimony and, upon cause shown, other materials? | Even if Rule 4003.5 allows limited expert discovery, communications remain privileged under 4003.3 and therefore not subject to 4003.5. | Rule 4003.5 permits discovery of facts/opinions and additional materials upon cause shown; counsel–expert communications with non‑work‑product content should be discoverable via 4003.5(a)(2). | Dissent would reverse Superior Court and remand to allow cause‑shown process; majority refused to adopt that approach. |
| If a document contains both attorney work product and factual material, must courts require redaction/in camera review or bar production? | Redaction/in camera review is impracticable and risks disclosure; better to bar discovery altogether. | Redaction and in camera review (or privilege logs) are appropriate to segregate protected work product from discoverable facts. | Majority favored avoiding redaction/in camera review and protecting communications; dissent endorsed redaction/targeted review and cause‑shown process. |
| May opposing counsel adequately test an expert’s independence without access to attorney–expert communications? | Cross‑examination and interrogatories under Rule 4003.5(a)(1) suffice; full access would chill expert consultation and impose costs. | Without documentary access, cross‑examination may fail to reveal attorney influence or parroting; access is necessary in some cases to ensure effective challenge. | Court divided: those favoring protection prioritized shielding work product; dissent prioritized allowing discovery when rules and cause‑showing permit. |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (articulates the core work‑product protection rationale).
- Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006) (discusses need for trial court supervision regarding expert discovery and least‑intrusive means).
- Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir. 1984) (distinguishes core opinion work product from factual work product; allows discovery of facts).
- Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384 (N.D. Cal. 1991) (permits disclosure of lawyer‑to‑expert communications to protect the integrity of expert testimony).
- Occulto v. Adamar, 125 F.R.D. 611 (D.N.J. 1989) (example where counsel authored an expert report and sent it for signature — a paradigm of improper lawyer control).
- Karn v. Ingersoll‑Rand Co., 168 F.R.D. 633 (N.D. Ind. 1996) (discusses policy reasons for broad disclosure to enable effective cross‑examination of experts).