Friday, July 11, 2014

ANOTHER SAD DAY FOR THE TRUTH: The Law of Barrick Has Been Added to Rule of Civil Procedure 4003.5

Rule 4003.5 has been amended to incorporate the law of Barrick v. Holy Spirit Hospital which protects from disclosure in discovery any forms of communications from lawyers to their experts.  Also protected are draft reports by experts.

The Rule, promulgated under Pa.R.C.P. 4003.5(a)(4), states that such communications and draft reports need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."

The new Rule may be viewed HERE.


I believe I am in the minority camp of those who don't favor the Barrick result or, now, this official Rule of Civil Procedure pertaining to a prohibition against the discovery of communications between an attorney and a retained expert.  See my article "A Sad Day for the Truth" ( May 6, 2014) HERE.

Although the amendments to Rule 4003.5 leave the door slightly cracked open to secure the disclosure of communications between an attorney and their retained expert, the Rule does not clarify what circumstances would warrant disclosure of these communications or even how such circumstances could ever be discovered given that the communications between the attorney and expert are fully protected. 

For example, arguably an attorney in a litigation should be able to discover the fact that his or her opposing counsel has directed or told their expert what to write in their expert report.

Is it not a stretch to think that an attorney in this adversarial system driven by compensatory results, depending on which side the attorney is on, would write to their expert and say "Please make sure you state that the accident was/was not the cause of the Plaintiff's injuries" or, "Please make sure that you include in your report your opinion that the Plaintiff's alleged wage losses/medical expenses were/were not caused by the accident."

Shouldn't an opposing counsel be able to discover such communications in order to properly cross-examine the expert in front of a jury at trial to show that the expert's opinion was, at a minimum influenced, or at maximum, directed, by the opposing counsel? 

Isn't such information important for a jury to be made aware of through cross-examination (and then in Closing Argument) in order to weigh the merits of the conflicting expert opinions at a trial, many of which trials come down to who wins the proverbial "Battle of the Experts?"

As the answer to the above rhetorical questions is obviously a resounding "YES," then it is indeed a sad day for the Truth in Pennsylvania civil litigation matters as, in reality, such influencing or directing of an expert's opinion by an opposing counsel can never even be discovered unless it comes to light by some mistake.

Jumping down off my soapbox to point out a practical result of this new Rule, it is noted that attorneys should remember that, whenever an opposing counsel now requests to see the expert's file prior to commencing his or her cross-examination of the expert, the attorney offering the expert should first remove from that file any communications between the attorney and the expert, as well as any draft reports as they are not discoverable under this new rule.

I send thanks to Attorney Malcolm L. MacGregor of the Scranton, PA law firm of McDonald & MacGregor for bringing this Rule change to my attention.

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