An en banc panel of the Pennsylvania Superior Court recently clarified and narrowed the scope of expert discovery, holding that virtually all communications between attorneys and retained experts are non-discoverable.
In Barrick v. Holy Spirit Hospital, the court analyzed the text of Pennsylvania Rule of Civil Procedure 4003.5(a), which controls the discoverability of expert testimony. The court determined that the Rule 4003.5 is “clear, explicit, and succinct,” and that Rule 4003.5(a)(1) specifies that “a party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion. Any other interrogatory, aside from these two specific inquiries, exceeds the scope of the plain language contained within Pa.R.C.P. 4003.5(a)(1)."1 If a party seeks additional discovery, the party must show cause and obtain a court order.2
The en banc panel’s opinion in Barrick is a complete reversal of an earlier decision by a three-judge panel of the Superior Court, which upheld an order to compel production of all attorney-expert communications.
In Barrick, a personal injury case, the defendant issued a document subpoena to the plaintiff’s treating physician, who also happened to be one of the plaintiff’s retained medical experts. The physician responded to the subpoena and produced all records related to the plaintiff’s treatment, but refused to produce documents “not created for treatment purposes,” i.e., documents related to the physician’s expected expert testimony. The defendant moved to compel the production of all correspondence between plaintiff’s counsel and the physician.
In reaching its decision, the court first clarified that a party may not elicit discovery directly from the opposing party’s expert witness, but must serve discovery on the opposing party.3 The court went on to apply its “clear, explicit, and succinct” reading of Rule 4003.5(a)(1) to the facts, finding that communications between plaintiff’s counsel and the expert witness fell outside the bounds of 4003.5(a)(1)’s two permissible inquiries and were therefore not discoverable. (The court does mention in a footnote that if the expert specifically cited attorney-expert communication as the basis for his opinion, the correspondence may be discoverable).
The court also found that the work-product doctrine served as independent grounds to bar discovery of the communications between plaintiff’s counsel and the expert witness, stating that “[t]he correspondence itself is not relevant to this action… [Plaintiff’s] action relies upon the opinions and analyses of the expert witness, not those of their attorneys.”4 The work-product doctrine served to “immunize” the non-relevant communications, thus shielding them from discovery.
1 Id. at 17(emphasis added).
2 Id. at 25. (“As our Supreme Court has previously determined, other than the interrogatories described in Pa.R.C.P. 4003.5(a)(1), the Rules of Civil Procedure require that a party show cause to obtain further discovery from an expert witness.”).
3 Id. at 17-18.
4 Id. at 24.