Daniel J. Siegel ()
Everyone likes bright-line rules that spell out what conduct is or is not permitted. After all, these types of rules make things easy. Or, at least, they supposedly do.
That is why the equally divided Pennsylvania Supreme Court’s recent decision in Barrick v. Holy Spirit Hospital, 2014 Pa. LEXIS 1111, which affirms the Superior Court decision that essentially precluded the discovery of all communications between attorneys and expert witnesses, should make attorneys and experts happy. Right?
Perhaps. Or perhaps not. But, like most issues, the answer is not that simple, particularly because the Supreme Court was evenly divided and questions will remain about the long-term viability of the decision, and a more compromised approach or rule would better serve all of the constituencies impacted by the decision.
This column will analyze Barrick and suggest that the Pennsylvania Supreme Court should amend Pa.R.C.P. 4003.5 (relating to expert discovery) to affirm the general principle that expert discovery remains limited, recognize the potential for abuse, and permit parties to obtain limited discovery from experts for cause shown, as permitted under Federal Rule of Civil Procedure 4003.5(a)(2).
By way of background, the Pennsylvania Rules of Civil Procedure limit discovery of communications between counsel and experts and preclude fishing expeditions by attorneys merely seeking to harass. In addition, these rules promote the candid exchange of information between counsel and experts, thereby helping attorneys to analyze the merits of their cases and positions. I have also found that communications with experts that highlight the strengths and weaknesses of my cases are more beneficial than a cleansed report that may shield potentially fatal flaws.
As someone who litigates cases in which experts often play a crucial role, and as someone who serves as an expert in legal malpractice and professional responsibility matters, I have seen the difficulties that a bright-line approach such as the one ostensibly adopted in Barrick can cause, but I also recognize that granting a party unfettered access to experts is equally problematic. After all, in theory, the purpose of discovery is to help the parties seek the truth and to prevent surprise.
It is clear that discovery from experts must be limited both to prevent harassment and to ensure that attorneys are not compelled to disclose their work product and confidential client information.
On the other hand, an across-the-board ban may not be the best way to reach this result.
Some attorneys and experts, just like people in every field, prefer the easy route. Thus, they welcome the opportunity to merely sign a report that was drafted for them by counsel. Similarly, some attorneys have no reluctance asking an expert to draft a report stating a specific position, even if the evidence does not support it. At times, there can be a tension that results, and limited discovery is more likely to encourage experts to stick to their positions rather than acquiesce and adopt reports that the lawyers have drafted.
As a result of Barrick, some attorneys and experts—and the case impacts both plaintiffs and defendants—will simply take the path of least resistance, confident that their shortcut will never be subject to scrutiny. I suggest that a more balanced approach, such as the one utilized under the Federal Rules of Civil Procedure, is more equitable and can help curb abuses by all parties.
Barrick involves the interpretation of Pennsylvania Rule of Civil Procedure 4003.5, which limits discovery from expert witnesses. In particular, the case addresses the protection of attorney work product, including correspondence and other materials provided by counsel to an expert.
Barrick has a long history, which is highly instructive. Arising from a personal injury, the defendants sought to obtain subpoena records from the plaintiff’s treating orthopedic surgeon. The physician’s office provided certain records, but, based on the advice of plaintiffs counsel, it withheld certain records that “were not created for treatment purposes.” The defendants sought to enforce the subpoena, and the plaintiffs objected, asserting for the first time that they had designated the physician an expert witness, subject to Rule 4003.5, and that all communications between counsel and the doctor were privileged under Rules 4003.3 and 4003.5.
The trial court performed an in camera review and granted the motion to enforce the subpoena. The plaintiffs appealed, and a three-judge panel of the Superior Court affirmed. In 2011, on en banc reconsideration, the Superior Court reversed, holding that the records were “beyond the permissive scope” of Rule 4003.5(a)(1), which permits expert discovery via interrogatories addressed to the “substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Of relevance, Judge Correale F. Stevens joined the majority. In 2012, the Pennsylvania Supreme Court granted allocatur and agreed to hear the case.
Meanwhile, the Supreme Court was sitting with only six justices, Justice Joan Orie Melvin having been indicted. Also in 2012, the editorial board of this paper (on which I sit) opined that the suspension of Orie Melvin “left the court divided equally with three Democrats and three Republicans, creating the possibility of 3-3 split decisions and default affirmation of appellate court rulings.” We also noted the “madness” that could result because “the first-level appellate courts in Pennsylvania—the Superior and Commonwealth courts—may be the last stop in the state judicial process,” and that “members of the appellate bar and law professors agree that the votes will effectively neutralize the Supreme Court in many cases and leave in place rulings that litigants believe are dubious at best.”
After Orie Melvin’s conviction, Stevens was appointed to the open slot on the Supreme Court, but of course could not participate in the decision of a case on which he was a panelist on the Superior Court. With that background, on April 29, an equally divided Supreme Court (without Stevens) issued two opinions, one in support of affirmance, the other in support of reversal, and left in place one of the most controversial decisions of the past decade.
Justice Max Baer authored the opinion in support of affirmance, which upheld the Superior Court majority and precluded the discovery of the expert witness information. Baer noted that “attempting to extricate the work product from the related facts will add unnecessary difficulty and delay into the discovery process. Redaction followed by in camera review would result in needless litigation adding expense to the parties and tying up the trial courts.” This conclusion, which seemingly disapproves of in camera review of disputes over experts, is facially inconsistent with the court’s unanimous conclusion in Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006), which recognized the need for trial court involvement in determining the appropriate scope of expert witness-related discovery in individualized circumstances. While Cooper noted that such discovery should be limited, it did so “while permitting such additional inquiries as the interests of justice may require in special circumstances, as determined within the sound discretion of the supervising court.”
Conversely, the opinion in support of reversal authored by Justice Thomas G. Saylor was grounded on the belief that the Rules of Civil Procedure “simply do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert” and that the Superior Court’s holding to the contrary should be reversed. The justices supporting reversal noted that they could “see no reason why it is any more difficult to determine what material should be redacted to protect attorney work product” than to protect the financial information being sought in Cooper.
Litigants and expert witnesses are at a crossroads.
First, Pennsylvania law now affirms the concept that the attorney work product extends to expert witnesses, even though experts are not parties to an action, and often have financial and other incentives that impact their opinions. Former Justice Sandra Schultz Newman recognized this reality in her concurring opinion in Cooper, in which she noted that “the general belief is that expert testimony adds an aura of reliability to the theories and claims proffered by the parties [and that] the proliferation of forensic programs in the media has conditioned jurors to expect testimony from experts in the majority of cases.” She also expressed concern that “the general trial strategy [now] descends to an attack on the credibility of the expert witness to diminish his or her effectiveness in the eyes of the fact-finder and to enable the opposing party to ‘lift [the expert's] visor, so that the jury [can] see who he was, what he represented, and what interest, if any, he had in the results of the trial.’” It is this tension that underlies the Barrick case.
Second, the opinion in support of affirmance cites a proposed amendment to Rule 4003.5, which would preclude the discovery of “communications between another party’s attorney and any expert who is to be identified pursuant to Subdivision (a)(1)(A) regardless of the form of the communications,” but would still permit limited discovery about “information concerning fees paid to experts.”
Third, unlike the bright-line approach adopted in Pennsylvania, the 2010 amendments to the Federal Rules of Civil Procedure permitted limited discovery of information from experts. Under these amendments, parties must disclose only “facts or data” considered by their experts. The amendment to the rule was intended to limit the disclosure of an attorney’s work product, i.e., counsel’s theories and mental impressions, and to permit the disclosure of material that is more factual in nature. Under the amended rules, drafts of expert reports are protected from disclosure, “regardless of the form in which the draft is recorded,” and, with limited exceptions, communications between counsel and experts are protected from disclosure, “regardless of the form of the communications.”
While Barrick creates a clear Maginot line, a better approach remains a more multifaceted rule that permits discovery in those situations where a party can demonstrate prejudice, witness manipulation or other improper conduct. Consequently, now that it has decided Barrick, the full seven-member Supreme Court should amend Rule 4003.5 to affirm that parties may not discover draft expert reports, continue the general prohibition against the discovery of communications between counsel and experts, and permit discovery of expert communications, upon good cause shown, as permitted under Federal Rule 4003.5(a)(2).
Daniel J. Siegel is the principal of the Law Offices of Daniel J. Siegel, which provides appellate, writing and trial preparation services to other attorneys, as well as ethical and disciplinary guidance. He is also the president of Integrated Technology Services, a consulting firm that helps law offices improve their workflow through the use of technology.