A
SAD DAY FOR THE TRUTH
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. Id. Another crucial purpose of cross-examination
is to provide an opportunity to elicit answers that will impeach the
impartiality of the witness. Catina v. Marie, 415 A.2d 413, 420
(1980), rev’d on other grounds, 447
A.2d 228 (1982).
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.
Co.
1980),
aff’d as modified, 461 A.2d 225 (1983),
rev’d on other grounds, 485 A.2d 742 (1984).
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, t
he 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?
