I love dissents.  While majority opinions focus on legal analysis, as they should, dissents tell the story, because it is usually only in the context of the story that the legal analysis of the majority can be directly attacked.  Such is the case with the recent en banc decision by the Pennsylvania Superior Court in Barrick v. Holy Spirit Hospital, 2011 Pa. Super. 251 (2011).  But more on the dissent later.

First, the essential holding:  This decision, which reverses the prior opinion by the three judge panel, holds that:  (a)  a party cannot subpoena an expert, but rather, that all expert discovery must be conducted through counsel pursuant to Pa.R.Civ.Proc. 4003.5; (b)  correspondence between counsel and a retained expert fall within the protections of the attorney work product doctrine set forth in Pa.R.Civ.Proc. 4003.3; and (c)  the work product protection is virtually absolute, yielding only when the work product is related to the substance of the underlying action (for example, in a malpractice action).

Now, the background:  If the case name sounds familiar, it is because the original Superior Court decision, issued in September of last year, held that the plaintiff’s expert witness was required to turn over to defense counsel all of his communications with plaintiff’s counsel on the ground that such communications would reveal the bases for the expert’s opinion and were therefore discoverable under Pa.R.Civ.Proc. 4003.5.  In doing so, the Court held that the attorney work product protection was, if not inapplicable, then at least irrelevant because the defendants were “entitled to discover the extent of [plaintiff’s] counsel’s influence over [the expert’s] opinions and whether counsel directed [the expert] to reach certain conclusions or to disregard certain facts or take other facts into consideration.”  Barrick v. Holy Spirit Hospital, 5 A.3d 404, 412 (Pa. Super. 2010).  Possibly the most disturbing aspect of the opinion was that the Court saw no need for any in camera review of the documents to determine whether or not they actually did contain information that influenced the expert; as far as the Court was concerned, communications with an expert witness were just not shielded, in any way, from discovery.  Moreover, nothing in the opinion limited the extent of discovery to the expert’s files, and questions arose as to whether, in similar settings, an attorney could be required to produce its documents or even provide oral testimony concerning communications with the expert.  Needless to say, the decision sent shivers down the spines of litigators statewide as the exchange of information, strategies and draft reports between counsel and witness can be significant and the stakes can be high; experts can make or break a case.

The first Barrick decision came out before the Pennsylvania Supreme Court’s decidedGillard v. AIG Insurance, 15 A.3d 44 (2011), which overturned a lower court ruling and held that the attorney-client privilege in Pennsylvania was a broad one which protects attorney-client communications both ways – that is, not only from the clients to the attorney, but also from the attorney to the client – in order to facilitate free and open exchanges between client and counsel.  While the attorney work product doctrine was not directly at issue in Gillard, the Supreme Court did cite to cases holding that the protection is both “closely related” to the attorney-client privilege and, notably, even broader than it, protecting confidential and non-confidential materials prepared by an attorney in anticipation of litigation.  15 A.3d at 59.   Also of import here, at least seven entities filed amicus briefs in Gillard, advocating for stronger protection of attorney-client communications, and the Supreme Court cites these briefs liberally throughout its opinion. 

Why reflect back to Gillard?  Because one cannot help but believe that the Supreme Court’s decision heavily influenced the result in Barrick II.  Whereas Barrick I almost dripped with disdain for attorneys who might consult with their selected expert witnesses, and found no part of the attorney-expert communications protected,Barrick II, although precise in its reliance upon the written word of the Pennsylvania Rules of Civil Procedure, nevertheless implicitly extolls the virtues of the work product privilege, citing T.M. v. Elwyn, Inc., 950 A.2d 1050, 1062 (Pa. Super. 2008) to the point that it “promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.” Further, whereas Barrick I took the extreme view that no attorney-expert communications were privileged, Barrick II seems to take the reverse, but just as extreme, position that all communications between attorney and expert and between expert and attorney – the same two-way street found in Gillard – are protected from discovery, not just those that fall within the strict contours of the attorney work product doctrine, a very broad proposition indeed. 

I say “seems” because, as the dissent notes, while the Court concludes with an absolutist statement that none of the correspondence is discoverable, buried within the majority opinion is a statement that in camera review may be necessary to determine “precisely what aspects of the correspondence fall within the parameters of the attorney work-product doctrine.”   

Which brings us back to the dissent – actually a partial concurrence and a partial dissent – by Judge Bowes.  Judge Bowes tells us the story, which is that the expert witness at issue was also a treating physician and, at the time the subpoena was served, had not even been identified as an expert witness.  In other words, at the time the discovery was initiated, Pa.R.Civ.Proc. 4003.5 concerning discovery of expert witness information was not even implicated, and yet the majority took defense counsel to task for issuing a subpoena (as one would normally do for any third party witness) rather than serving expert interrogatories.  In fact, the physician was not even disclosed as an expert until after the Motion to Enforce the Subpoena was filed, which might make one wonder if an attorney could protect all of his or her communications with third parties just by instantaneously making the third party an “expert.” 

Judge Bowes then goes on to question the majority’s broad application of the attorney work-product doctrine.  Pointing out that nothing in the Rules of Civil Procedure protect all communications and correspondence by counsel, and that the attorney work-product doctrine only protects the work of a party’s counsel and agents, the dissent reads the majority opinion as tacitly, if not explicitly, concluding that testifying expert witnesses are, in fact, party representatives as opposed to the “independent” experts they are supposed to be but rarely are.  (Judge Bowes accuses the majority of “abandon[ing] any pretense of expert objectivity and independence.”)  And having reviewed the actual documents at issue and finding that at least some correspondence from the attorney provide factual information upon which the expert relied, and others consisting of communications from the expert which one would not think of a work product (unless the expert is, as just mentioned, considered an agent or representative of the party), Judge Bowes makes no bones about the fact that he believes the decision goes much too far, and will impinge on legitimate expert discovery, protecting all manner of documents and information provided to experts that should be disclosed, in contravention of the purpose of discovery, to prevent surprise and unfairness and ensure a fair trial. 

So, is it more important that attorneys and experts can consult freely with one another without fear that their communications will ever be seen, or that the trier of fact be permitted to learn exactly what went into the making of the expert’s opinion?  While there is a middle ground that would protect some correspondence but not others, would that leave too much uncertainty for counsel and expert to effectively prepare for trial? There’s enough in both the majority and the dissent to chew on, and I suspect that this won’t be the last we hear of the Barrick case.

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