Wednesday, November 23, 2011

Barrick v. Holy Spirit Hospital Reversed by En Banc Panel of Superior Court

On November 23, 2011, an en banc panel of the Pennsylvania Superior Court issued a 38 paged Opinion that serves to overturn the trial court's decision to allow one party to review written communications by the opposing party to the opposing party's expert in the case of Barrick v. Holy Spirit Hospital, 1856 MDA 2009 (Pa. Super. Nov. 23, 2011)(8-1 Opinion by Mundy, J.)(Bowes, J. concurring and dissenting).

The trial court's decision was overturned even though the Plaintiff's attorney admitted in this matter that his written communications to the Plaintiff's medical expert were specifically designed to address the expert's formulation of his expert report for trial and even though the trial court judge had found, after an in camera inspection of the written communications that such communications could have "materially impacted" the expert's formulation of his expert report.

I wrote the amicus curiae briefs on behalf of the Pennsylvania Defense Institute in this matter.

For a review of the trial court's decision and the original decision of the Pennsylvania Superior Court in Barrick in favor of the disclosure of such communications, type "Barrick" in the Search Box in the upper right hand corner of the blog (

The en banc Barrick Opinion can be viewed online here.  What follows is a synopsis of the decision.

In the just released en banc decision, the Superior Court falls in line with the recent amendments to the Federal Rules of Discovery that protect from disclosure communications from attorneys to their retained experts.

In Barrick, the Pennsylvania Superior Court shifted gears from the previous decisions issued in this case and focused on the mechanism by which the defense sought out information from the Plaintiff's expert/treating physician, i.e. by way of a subpoena to the treating physician for a copy of his file.  This issue was barely addressed in the previous filings and Opinions on the question presented.

The en banc Barrick Court ruled that the proper way to secure additional, detailed information from a party's expert, above and beyond the expert's report and curriculum vitae, and other than by way of Interrogatories as permitted under the Pennsylvania Rule of Civil Procedure 4003.5(a)(1), was to show cause to the court for the need for such additional information by way of motion.

The Court held that the defendant's subpoena to the treating doctor/expert for his file was beyond the scope of Pa.R.C.P. 4003.5 in that the defendant had not first shown cause to support this request for additional information from the opposing party's expert.

The Superior Court in Barrick also found that the communications from the attorney to the expert were generally protected under the attorney work product doctrine as those communications contained mental impressions, conclusions, legal analysis etc. of the attorney which were all protected from disclosure under Pa.R.C.P. 4003.3.

In her concurring and dissenting opinion, Judge Bowes agreed with the majority's finding that "Pa.R.C.P. 4003.5, which defines the permissible methods and scope of the expert witness discovery, precludes the use of a subpoena directed to the expert to obtain documents in the expert's file."

Judge Bowes dissented from the majority's Opinion that Pa.R.C.P. 4003.3 "affords blanket work-product protection to all communications vis-a-vis the attorney and his expert.

The Barrick decision essentially returns the method of expert discovery in Pennsylvania state courts back to the way it always was before this case went up the appellate ladder.  However, it appears that there may be additional ramifications.

Under the Barrick decision, does it now follow that whenever the defense wishes to subpoena the file of a plaintiff's doctor(s), the defense will have to file a motion under Pa.R.C.P. 4003.5 to show cause in support of the request for the production of such documents?

Will that scenario serve to flood the courts with largely unnecessary discovery motions that may also require the court's to conduct in camera reviews of the innumerable files that will be produced in this process assuming the motion is granted?

Also, Barrick appears to read that the long-standing practice of attorneys requesting to review the file of the opposing party's expert after the conclusion of the direct examination of the expert at trial or at a trial video deposition, and before the cross-examination, can be objected to as not required or permissible. 

At the very least, the attorney offering up the expert as a witness may arguably remove any letters from the attorney to the expert from the expert's file before the opposing party is permitted to review the remaining documents in the file.

Perhaps the most troubling aspect of the Barrick decision is that, now that there seems to be a blanket protection against the production of attorney letters to experts, what's to stop the unscrupulous attorney from tampering with the overall goal of civil litigation--the search for the truth on the claims and defenses presented--by way of influencing, or even telling, the expert what to put in his report and testimony for trial.

What are your thoughts?  There's a "Comment" button below if you'd like to note your take on this decision.

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