Tuesday, April 5, 2011

En Banc Superior Court Panel Hears Re-Argument in Barrick

On April 5, 2011, I attended the re-argument of the Barrick v. Holy Spirit Hospital case before an En Banc Superior Court Panel. 

The argument was held at a special session of the Court at the MMI Preparatory School in Freeland, Luzerne County, Pennsylvania and it was noted that this was the first time an En Banc Superior Court  had ever heard arguments in a high school setting.

You may recall that Barrick v. Holy Spirit Hospital involved the issue of whether repeated written communications by one attorney to that attorney's retained medical expert were discoverable, particularly where such communications were admittedly and purposefully designed to address the strategy of how the expert should frame his opinion and where such communications were found by the the trial court judge to have potentially "materially impacted" the expert's formulation of his opinion.

I wrote the amicus curiae appellate brief on behalf of the Pennsylvania Defense Institute in support of the appellee's position that such communications should indeed be discoverable under the Pennsylvania Rules of Civil Procedure.  The amicus brief can be viewed at this link: 

http://www.jdsupra.com/post/documentViewer.aspx?fid=13d479ae-68e2-41c2-8279-492075821e68

Judge Hess of the Cumberland County Court of Common Pleas originally ruled in Barrick at the trial court level that such communications were discoverable.  On appeal, the original Superior Court panel, which consisted of Judges Musmanno, Lazarus, and Olsen, affirmed.

When the Plaintiff's Petition for Re-Argument En Banc was granted, the Superior Court's original decision was withdrawn.

The En Banc Panel of Superior Court Judges that heard the re-argument did not consist of any of the Judges who heard the case the first time around. 

The panel instead consisted of President Judge Correale F. Stevens, Judge John T. Bender, Judge Mary Jane Bowes, Judge Jack A. Panella, Judge Christine L. Donohue, Judge Jacqueline O. Shogan, Judge Sallie Updyke Mundy, Judge Paula Francisco Ott, and Judge Robert A. Freedberg.

After a spirited debate between the panel and the attorneys over the interplay between Pa.R.C.P. 4003.3 and 4003.5, i.e. the balance between the protections of the attorney work product doctrine and the discoverability of the bases for an expert's opinion, the Court took the matter under advisement.

I will keep you advised as to any decision issued by the Court.

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