Barrick Supreme Court decision will
embolden tinkering with experts with impunity
By
Daniel
E. Cummins
The Pennsylvania Supreme Court’s much-anticipated decision in the case of Barrick v. Holy Spirit Hospital is disappointing in more ways than one.
By a split decision no less, six Justices of the Pennsylvania Supreme Court in Barrick equally differed on the all-important the issue of whether or not communications between an attorney and his expert witness are discoverable. With this split decision, the hell or high water results-oriented decision by the en banc Pennsylvania Superior Court stands. The en banc Superior Court ruled that information given by an attorney to that attorney’s expert and pertaining to the creation of that expert’s opinion is not discoverable.
By way of background, the Dauphin County trial court ruled that such information was indeed discoverable where an in camera review of the communications by Plaintiff's counsel to a medical expert revealed that the communications could have “materially impacted” that expert's opinion.
On appeal, an original three-member panel of the Superior Court initially affirmed the trial court's decision that the communications were discoverable in order that any “parroting” by the expert of a requested opinion from an attorney could be made the subject of cross-examination at trial. For full disclosure purposes, I represented the Pennsylvania Defense Institute in its amicus curiae submissions at the Superior Court stage of the litigation only. Thereafter, on re-argument before an en banc panel of the Pennsylvania Superior Court, the previous decisions were reversed and that court held that the communications from the attorney to the expert were not discoverable. By default, the Supreme Court’s split on the issue allows the Superior Court en banc decision to stand.
No Place for Split Decisions
It is initially noted that the Pennsylvania Supreme Court’s decision in Barrick is frustratingly disappointing by the fact that there is no reason why split decisions should be allowed to exist at the highest level of this Commonwealth’s court system.
All too often in recent times, there have been equally split decisions at the Supreme Court level on a variety of issues. If an issue is important enough to be accepted for review by the Pennsylvania Supreme Court, there should be a mechanism in place to ensure that there are seven Justices to rule upon, and finally settle, the pressing question presented.
Pennsylvania Law Weekly writer Howard Bashman, Esquire proposed that where a Justice is unable to sit in on a matter for one reason (or another), another appellate court judge from the Superior Court or Commonwealth Court should be allowed to sit in on a random, rotating basis (to avoid politics), with a Commonwealth appellate court judge sitting in on Superior Court appeals and vice versa in order to avoid conflicts. Seems a simple enough solution.
Perhaps the disappointing split decision by the Pennsylvania Supreme Court in Barrick will serve as an impetus for that Court to explore and create a proper mechanism to prevent split decisions, i.e. moot decisions from Pennsylvania’s highest court, in the future.
A Roadblock to the Quest for
the Truth At Trial
More importantly, the split decision by the Pennsylvania Supreme Court in Barrick amounted to a disappointing day for the Truth.
The specific issue before Court in Barrick involved the question of whether the attorney work product doctrine protects from disclosure letters and e-mails from a party’s attorney to that party’s medical expert where the correspondence specifically and purposefully addresses the role of the expert witness and the strategy on how the expert opinion should be framed. The question, which essentially answers itself, was an issue of first impression in the Pennsylvania appellate courts.
Taking a step back from the very specific discovery issue presented and looking at the big picture, it is well established under Pennsylvania jurisprudence that “the purpose of…civil trials is to discover the truth….” Bailey v. Tucker, 621 A.2d 108, 113 (1993)[emphasis in original].
As a sometimes crucial part of the truth-finding process of trial, parties are permitted to present expert witnesses to provide opinion testimony on matters that may be beyond the common knowledge of lay persons on the jury panel. See Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa.Super. 2004); see also Pa.R.E. 702-706.
Pre-trial discovery of information given to witnesses is therefore important as it is well-settled that, in the search for the truth at trial, it is for the jury to determine the credibility of the witnesses, including expert witnesses, along with the weight to be given to the testimony of the witnesses. See Ludmer v. Nernberg, 640 A.2d 939, 942 (1994).
Stated otherwise, in a case where the credibility of the witnesses is at issue, for example as where there is a “battle of the experts,” the weight to be assigned to its testimony of various witnesses is within the exclusive province of the jury. See Smith v. Shaffer, 515 A.2d 527, 528-529 (1986).
In this regard, a jury is permitted to believe all, a part of, or none of the testimony of any witness. Neison v. Hines, 653 A.2d 634, 636-637 (1995). Ultimately, a jury is under no obligation to accept as true the testimony presented by either side of the case, but must compare the conflicting evidence to determine the truth. Metz v. Travelers Fire Ins. Co., 49 A.2d 711, 713 (1946). In fact, a jury may even disbelieve the testimony of expert witnesses, even when that testimony is uncontradicted. Douglass v. Licciardi Construction Co., 562 A.2d 913, 916 (1989); Janson v. Hughes, 402, 455 A.2d 670, 671 (1982). Thus, pre-trial discovery of information fed or provided to a witness, and particularly an expert witness, may prove important in the process of exploring the credibility of that witness through the truth-seeking tool of cross-examination.
The most important tool provided to a litigant to test the credibility of the opinion of an adversary’s expert witness and thereby challenge the truth of the adversary’s claims at trial, is the right to cross-examine witnesses. The primary purpose of cross-examination is to elicit testimony tending to refute all inferences and deductions raised by direct examination. Collins v. Cooper, 746 A.2d 615, 617-618 (Pa. Super. 2000). The right of cross-examination includes the right to examine the witness on any facts tending to refute those inferences or deductions.
The Rules of
Discovery Support the Search for the Truth
The Courts of Pennsylvania have recognized that the cross-examining attorney is unlikely to have the requisite expertise on the topic testified to by the expert, or any knowledge as to how the expert formulated his or her opinion, without some procedural assistance from the Rules of court.
It is for this reason that the Pennsylvania Rules of Civil Procedure require the pre-trial identification by experts along with the substance and the grounds for the expert’s opinion. This affords the opposing counsel an opportunity to prepare an appropriate cross-examination during the search for the truth at trial. See Freeman v. Maple Point, Inc., 574 A.2d 684, 689 (1990).
It is reiterated, so as not to be forgotten, that the overriding purpose of civil trials is to determine the truth of the claims and defenses presented. The courts of Pennsylvania have repeatedly held that it therefore follows that “the purpose and spirit of discovery proceedings is to avoid surprises at trial and to permit trials to be a truth-seeking devi[c]e.” Feld v. Merriam, 1980 WL 194225, 4 Phila.Co.Rptr. 511 (Phila.
Under the liberal Pennsylvania Rules of Civil Procedure pertaining to discovery, i.e., Pa. R.C.P. 4003.1(a), a party is generally permitted to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action” even if that discovery was prepared in preparation for litigation or trial. 42 Pa.R.C.P. 4003.1(a); Pa.R.C.P. 4003.3. With regards to expert discovery, the discovery rules avoid surprises and allow for a fair trial on the merits by providing that a party may require an adversary to identify the trial expert, state the subject matter on which the expert is expected to testify, state the facts and opinions to which the expert is expected to testify, and state a summary of the grounds for each opinion. Pa.R.C.P. 4003.5(a)(1)(b).
Rule 4003.5 specifically allows for the discovery of “facts known” and opinions held by the testifying exert witness including the grounds for each opinion, even if those facts were acquired in anticipation of litigation. See Pavlak v. Dyer, 59 D.&C.4th 353, 355 (C.P. Pike Co. 2003 Thomson, J.). In providing for such discovery pertaining to the expert and the formulation of his or her opinion, Rule 4003.5 has been construed as intending to allow for the effective cross-examination and rebuttal of an expert witness by opposing parties. 9 Goodrich-Amram §4003.5:2 (2008; 2009-2010 Suppl.).
The en banc Superior Court in Barrick generally held 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, all of which were deemed to be protected from disclosure under Pa.R.C.P. 4003.3.
Conclusion
The end result in Barrick’s preclusion of this type of discovery is the creation of
the obvious danger that some attorneys, knowing that such activity can never be
discovered, may not be able to resist the temptation to suggest, or even worse,
tell their experts how to craft their opinion in favor of that attorney’s
client and thereby surreptitiously impact the truth-seeking purpose of civil
trials.
In the end,
depending on which side you are on, the Pennsylvania Supreme Court’s moot split
decision in Barrick v. Holy Spirit
Hospital turned out to be either a boon to the unscrupulous game players of
civil litigation matters or a great loss for those pursuing the noble search
for the truth at trial.
The only
hope is that, in addition to being an impetus for a movement towards action to
avoid future split decisions by the Pennsylvania Supreme Court, perhaps Barrick will also serve as a catalyst
for additional discussion on the proposed Rule changes pertaining to the
permissible scope of expert discovery in Pennsylvania state courts.
What do you think?
What do you think?
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