Wednesday, June 9, 2010

Superior Court Holds Oral Argument on Expert Discovery Issue

On June 9, 2010 I traveled to Harrisburg to participate in oral argument before the Pennsylvania Superior Court during which I presented the Pennsylvania Defense Institute's amicus curiae position in the case of Barrick v. Holy Spirit Hospital, No. 1856 MDA 2009 (Pa.Super. 2009).

As you may recall from recent posts on Tort Talk, the issue presented, as set forth in my amicus brief and filed of public record, is "[w]hether the trial court [Cumberland County Court of Common Pleas--Judge Hess] properly ruled, within its broad discretion, that repeated communications from plaintiff's attorney to the plaintiff's expert medical witness for trial were discoverable by the defense where the letters and e-mails to the expert purposefully addressed how the expert should frame his opinion testimony and where the trial court found, after an in camera inspection of the documents, that such written documents may have materially impacted the expert's formulation of his opinion."

Plaintiff's counsel argued, in part, that his letters and e-mails were protected from disclosure by the attorney work product doctrine. He also asserted that recent changes to the companion Federal Rules of Discovery in this regard allegedly showed a trend in favor of protecting such communications from disclosure.

Here are links to the other Tort Talk posts on this case:

http://www.torttalk.com/2010/02/amicus-brief-on-expert-discovery-issue.html

http://www.torttalk.com/2009/12/plaintiffs-also-required-to-produce.html

http://www.torttalk.com/2010/02/new-westlaw-citation-for-trial-court.html


The Superior Court took the matter under advisement. I will post a summary of the Court's decision here on Tort Talk once it is handed down.

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