Thursday, September 16, 2010

AMICUS CURIAE POSITION ADVOCATED FOR PENNSYLVANIA DEFENSE INSTITUTE PREVAILS AT SUPERIOR COURT LEVEL

I am happy to report that the amicus curiae brief and oral argument I presented on behalf of the Pennsylvania Defense Institute in the case of first impression of Barrick v. Holy Spirit Hospital has prevailed in the Superior Court as confirmed by the Court's Opinion handed down yesterday. The prevailing defense attorney is Attorney Stephanie L. Hersperger of the Harrisburg, PA office of Thomas, Thomas & Hafer.

The appeal involved the novel expert discovery issue of whether a plaintiff's treating doctor/medical expert witness for trial should be required to produce letters and e-mails the doctor received from the plaintiff's attorney dealing, in part, with how the expert should frame his opinion.

This issue was raised through the actions of the Plaintiff's attorney in the matter. The Plaintiff's attorney wrote letters and emails to the Plaintiff's medical provider that admittedly addressed the strategy of how the doctor should frame his expert report. When the defense pursued the production of those letters in discovery by way of a subpoena for the doctor's file, Plaintiff's counsel objected.

The trial court allowed for the discovery, and it was the Plaintiff's attorney who appealed the matter up to the Superior Court.

On September 16, 2010 the Superior Court issued an Opinion affirming the trial court's decision in Barrick v. Holy Spirit Hospital, 2010 Pa.Super. 170 (Pa.Super. Sept. 16, 2010, Musmanno, Lazarus, Olson, J.)(Opinion by Olson, J.).

Noting that it was faced with a case of first impression, the Superior Court rejected the Plaintiff's contention that the letters and emails at issue were protected by the attorney work product doctrine. Rather, the court found that it was "compelled to find that if an expert witness is being called to advance a party's case-in-chief, the expert's opinion and testimony may be impacted by correspondence and communications with the party's counsel; therefore, the attorney's work product doctrine must yield to discovery of those communications."

In so ruling, the Superior Court adopted a bright line rule in favor of the production of such written communications to a trial expert by counsel. The Court stated that litigants are entitled to discover whether an expert's opinions are his own or a mere parroting of what he or she was told by counsel. The Court further warned that, since the attorney work product doctrine is not an absolute privilege against disclosure, counsel took a risk in communicating as he did with the expert.

It is noted, parenthetically, that the Superior Court favorably pointed to prior trial court decisions on this issue by Lackawanna County Court of Common Pleas Judge Carmen D. Minora in Shambach v. Fike, 82 Pa.D.&C. 4th 535 (Lacka. Co. 2006) and Pike County Court of Common Pleas Judge Harold A. Thomson, Jr. in Pavlak v. Dyer, 59 Pa.D.&C. 4th 353 (Pike Co. 2003).

Obviously, this decision will impact defense counsel and their communications with independent medical examination (IME) experts as well. But seasoned defense counsel have long known to keep such letters neutral with the understanding that they may have to be produced in discovery. Now, with Barrick v. Holy Spirit Hospital, there is no question that plaintiff's counsel will likewise have to produce their correspondence to plaintiff's medical experts for trial as well.

Here's a link to the Superior Court's Opinion in Barrick v. Holy Spirit Hospital:

http://www.aopc.org/OpPosting/Superior/out/a20042_10.pdf


If you have any questions or comments you can click on "comments" at the bottom of this post or contact me at dancummins@comcast.net.

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