January 10, 2011

Experts: To Communicate or Not

By Kevin L. Connors, Esquire

To communicate or not-that is the question, insidiously lifted from Hamlet.

No, this will not be a discourse on the subtle complexity and feral firepower of our deliciously human fascination with the art and science of communication, both oral and written.

Instead, it is a cautionary tale, predicated on the theorem of “less is more”, particularly in communications between counsel and expert witnesses, as evidenced by the Pennsylvania Superior Court’s recent opinion in Barrick v. Holy Spirit Hospital, rendered on September 16, 2010.

Attorney letters to their expert witnesses are discoverable, in the Superior Court’s opinion.

The short story, Barrick-fueled, would be that attorney letters to their expert witnesses are discoverable, in the Superior Court’s opinion, and that these communications are not privileged as attorney work product under any variation of the Pennsylvania Rules of Civil Procedure.

Barrick involved a personal injury lawsuit, that arose after Barrick was injured, when a chair collapsed underneath him in the cafeteria of the Holy Spirit Hospital.  Barrick then came under the care of Dr. Green, an orthopedic surgeon, with Dr. Green being designated as the Plaintiff’s expert medical witness for trial.

Holy Spirit contended that it was denied e-mail and written communications between Barrick’s attorney and Dr. Green.

During discovery, Holy Spirit Hospital had served Dr. Green’s office with a subpoena, seeking Barrick’s medical file.  In response, Barrick’s treatment records were produced.  However, Holy Spirit filed a Motion to enforce the subpoena, contending that it was denied e-mail and written communications between Barrick’s attorney and Dr. Green, pertaining to Dr. Green’s designation as Barrick’s expert medical witness.

Opposing Holy Spirit’s Motion, Barrick’s attorney contended that the e-mail and written communications between Dr. Green and counsel were privileged attorney work product documents.

The trial court, in Cumberland County, granted Holy Spirit’s Motion to enforce the subpoena, and directed Dr. Green to turn over the requested documents, after the trial court reviewed the documents in camera.

Barrick’s attorney argued that the communications dealt with legal theories and trial strategies, and were, therefore, “beyond the scope of permissible discovery”.

Barrick appealed the trial court’s ruling, alleging trial court error in ordering the disclosure of letters and e-mails between Dr. Green and counsel, as those communications were directed at Dr. Green’s expert opinions; specifically, Barrick’s attorney argued that the communications dealt with legal theories and trial strategies, and were, therefore, “beyond the scope of permissible discovery”.

In support of counsel’s assertion of privilege, counsel cited to Pennsylvania Rules of Civil Procedure Nos. 4003.3 and 4003.5.

Considering the question posed as one of “first impression”, the Superior Court, in an Opinion authored by Justice Olson, reviewed Pennsylvania’s Rules of Civil Procedure pertaining to discovery, with Rule 4003.3 limiting the disclosure of attorney “work product”, to include the attorney’s “mental impressions”, etc., contrasted against Rule 4003.5, which permits the “discovery of facts known and opinions held by an expert” that are “acquired or developed” in anticipation of litigation or for trial”.

The Court held that if the expert witness is being called upon to advance a party’s case-in-chief, and if expert’s opinion and testimony was impacted by communications with the party’s attorney, in that instance, the attorney work product doctrine must yield to the disclosure of the attorney-expert communications.

Concluding that there appeared to be a conflict between Rules 4003.3 and 4003.5, with the former rule prohibiting discovery of the “work product” and mental impressions of a party’s attorney, and the latter Rule requiring disclosure of the substance of the facts and opinions that would form the foundation for a testifying expert’s opinions and conclusions, presumably also including communications to and from a party’s attorney, the Court held that if the expert witness is being called upon to advance a party’s case-in-chief, and if expert’s opinion and testimony was impacted by correspondence and communications with the party’s attorney, in that instance, the attorney work product doctrine must yield to the disclosure of the attorney-expert communications.

Moreover, the Court noted that Barrick’s counsel “could not reasonably expect his work product to remain privileged”, when Holy Spirit Hospital was entitled to discover “the substance of the facts and opinions to which the expert is expected to testify”, as well as the “grounds for each opinion”. 

Finding that the written communications, both e-mail and letters, between counsel and Dr. Green were “highly relevant”, the Court found that Holy Spirit Hospital was entitled to test the weight and veracity of Dr. Green’s conclusions, through discovering the extent to which the expert’s opinions might have been influenced by counsel’s communications, particularly in terms of what counsel suggested that the expert take into consideration the inclusion or exclusion of certain conclusions or fact, in rendering an expert opinion.

Practical Implications

Beyond there being a very spirited debate within the Bar over the practical implications of the Barrick decision on present and future litigation, the decision itself is: (1) not that surprising, other than the Court’s notation that it is a case of “first impression”; (2) a rule that one would expect to be made 100 out of 100 times; (3) a result that is, no doubt, a reflection of the cursory thought given to the potential consequences of “spilling your guts” without any clear assurance of there being a “safe harbor” to hide in; and, (4) how much more obvious does this have to be?

If you do not want your expert to be cross-examined as to how you suggested that his expert report be written, let the expert draw his own conclusions.

So, if you do not want your expert to be cross-examined as to how you suggested that his expert report be written, let the expert draw his own conclusions, although it might be better to have a frank conversation with your expert, before the expert memorializes his/her opinion in an expert report.

And this is not, by any means or degrees, a suggestion that counsel “shape” an expert’s opinions, beyond being a reminder that we all live in slightly opaque glass houses, and that we should, therefore, be circumspect about not only what we say, but in what medium we decide to publish our less than infinite wisdom.

In truth, Barrick will have little impact on the practices of almost 99% of the Bar, irrespective of which side of the aisle that we have elected to demonize ourselves through less than lucid intentions, as it is, more likely than not, simply a nod of the forensic hat by  Dragnet’s Detective Friday, myopically intoning “just the facts”.

Questions

Questions concerning casualty litigation practice and procedures, can be directed to our general litigation department attorneys.

Questions concerning issues with regard to workers’ compensation litigation, can be directed to our workers’ compensation attorneys.

ConnorsLaw LLP

Our casualty litigation practice group routinely defends litigation for self-insureds, third-party administrators, and insurance carriers throughout Southeastern and Eastern Pennsylvania, appearing in state and federal civil courtrooms in Philadelphia, as well as in the surrounding counties of Bucks, Montgomery, Delaware, Chester, Lancaster, Berks, Lehigh, Northampton, and Schuylkill.

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