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Last year, the Superior Court sent a shiver through the bar with its opinion in Barrick v. Holy Spirit Hospital.  The controversial decision ruled a counsel had to produce correspondence, both letters and e-mail, with a treating physician who had been identified as an expert witness in a medical malpractice case.  On Nov. 19, the  Pennsylvania Superior Court granted a petition for en banc re-argument and withdrew the original opinion.  The en banc opinion has just been published, reversing the prior opinion.  The court engages in an in-depth discussion of the rules regarding discovery of expert opinion and comes to the conclusion that:

[I]nterrogatories under Pa.R.C.P. 4003.5(a)(1) may only require an opposing party’s expert witness to “state the substance of the facts and opinions to  which the expert is expected to testify and [to] summar[ize] [] the grounds for each opinion.”  Any discovery request for information beyond the boundaries of this clear, explicit, and succinct statement is impermissible under Pa.R.C.P. 4003.5(a)(1).  Thus, a discovery request for the content of any correspondence between an opposing party’s attorney and the expert witness retained by that party falls outside the express language of Pa.R.C.P. 4003.5(a)(1).

The Superior Court agrees with Appellants that “forcing the disclosure of any communications between counsel and an expert witness violates the work product privilege contained in [Pa.R.C.P.] 4003.3.”

Apparently the spirit of Thanksgiving is alive and well in the Superior Court.

-Josh J.T. Byrne, Esquire