Monday, December 27, 2010

Changes Proposed to Pa.R.C.P. 4003.5 Regarding Expert Discovery

Tort Talkers may recall that, on November 19, 2010, the Pennsylvania Superior Court granted the Plaintiff’s Petition for Re-argument and withdrew its opinion in Barrick v. Holy Spirit (affirming trial court's decision that written communications between counsel and a testifying expert that "materially impact" expert's formulation of his or her opinion are discoverable). To date, a re-argument date has not been set.

In the meantime, it has come to light that the Supreme Court Civil Procedural Rules Committee has drafted Proposed Recommendation No. 248, seeking to amend PA.R.C.P. 4003.5, which pertains to expert discovery.

This Proposed Recommendation from the Supreme Court Civil Procedural Rules Committee brings State practice more in line with Federal Practice. Significantly, it expressly prohibits the discovery of any kind of communications between any attorney and his or her expert.

I am uncertain as to whether this recommendation came about because of the recent changes to the Federal Rules of Civil Procedure in this regard, because of the Barrick decision, or a combination of both events. The proposed Explanatory Note does make reference to the recent amendments to the Federal Rules of Civil Procedure on this topic.

Anyone wishing to view Proposed Recommendation No. 248 of the Supreme Court of Pennsylvania Civil Rules Committee may click on this link:

There appears to be at least two schools of thought on this issue. Those falling in one group fear that the ruling of Barrick, allowing for the discovery of communications between attorneys and experts may create a slippery slope that may lead to the erosion of the protections that the attorney work product doctrine provides to an attorney's thoughts, conclusions, and mental impressions regarding strategy or the merit of any claim or defense. The thought is that attorneys should be able to freely litigate their cases to the benefits of their clients, including the fine tuning of the opinions of their expert witnesses, without fear of the attorney's litigation strategy being laid bare for all to see in the discovery process.

The other school of thought believes that the ruling of Barrick is a correct decision that prevents any tampering with the litigation process by over-zealous attorneys, plaintiff or defense, seeking a favorable result for their clients. The recognized purpose of a jury trial is to uncover the truth of the claims and defenses pled and requires a transparency in the process, which includes, in part, the ability of a party to be able to cross-examine an opponent's experts as to whether or not the expert's opinion is really the opinion of the expert or was, instead, the opinion suggested to the expert by the attorney. The thought is that , in order to cross-examine the expert in this regard, discovery of the communications between the attorney and the expert is necessary. In the end, a tangential benefit may be that the knowledge that communications between the attorney and the expert are discoverable may prevent attorneys from attempting to influence the expert's opinion in this truth-seeking process.

What do you think? Feel free to click on the word "comment" below this post to list your thoughts.

I thank David Cole, Executive Director of the Pennsylvania Defense Institute, for bringing this matter to my attention.

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