Superior Court rules expert witness discovery invalid

By Michael P. Tremoglie | Nov 29, 2011

The Pennsylvania Superior Court issued a ruling Nov. 23, reversing a trial court’s decision permitting discovery of the written communications of an expert witness.

The court’s ruling is consistent with that of federal discovery procedures which protect communications between attorneys and their expert witnesses.

The case in question was that of Barrick v. Holy Spirit Hospital, in which the Court of Common Pleas of Cumberland County granted a motion Oct. 16, 2009, to enforce a subpoena issued for the appellant’s medical records. The order directed Appalachian Orthopedic Center to produce any and all documents including the correspondence between appellant's counsel and the appellant’s physician who was also designated to testify as an expert witness at trial.

The plaintiff sued the hospital for alleged injuries sustained when the chair the plaintiff was using in the hospital cafeteria collapsed. The doctor who treated the plaintiff provided all the records concerning the medical treatment to the defendant’s counsel. But the doctor did not turn over other records. The plaintiff’s counsel filed a motion to obtain them.

The records being requested were in conjunction with the physician's role as an expert witness and were protected, it was argued. The trial court rejected the argument.

The Superior Court, however, ruled that the subpoena went beyond the Pennsylvania rules of civil procedure by requesting written materials pertaining to the physician’s role as an expert witness without first showing cause as provided by law. The Superior Court determined that the defense failed to substantially comply with the Pennsylvania rules of civil procedure.

The court noted the defense intended to use its subpoena to obtain “written documents directly from an opposing party’s expert witness. Specifically, the record indicates that defense subpoena was sent directly to Appalachian and sought the written correspondence between Appellants overreached in terms of substance because it sought information beyond the permissive scope..."

The court also ruled that the work-product privilege doctrine did not apply because to the extent that the correspondence between appellants’ counsel and the physician constituted “attorney-work product."

"[D]iscovery shall not include disclosure of the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories," the court wrote.

Ultimately, the court said that the Pennsylvania Supreme Court has said that in order for an expert witness to produce documents the party requesting the discovery must show just cause.

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