Two justices of the Pennsylvania Supreme Court on Wednesday questioned whether opening the gates of discovery to communications between an attorney and his or her expert would have an unfavorable impact on litigation in Pennsylvania courts.
Addressing one defense attorney hoping to gain access to communications between opposing counsel and his expert physician, Justice Max Baer said using such communications to precisely establish, and possibly attack, the origins of an expert’s opinion would lead to "chaos."
Justice Debra Todd, noticeably reluctant to accept the defense theory in support of discovery, told attorney Stephanie L. Hersperger she was concerned about what impact allowing the discovery would have on the practice of law in this state. In Todd’s words, a decision in the defendants’ favor would "handicap every attorney," plaintiffs or defense.
Hersperger, the Thomas, Thomas & Hafer attorney representing defendant Sodexho Management Inc., said the language of Pennsylvania Rule of Civil Procedure 4003.3, on the scope of discovery, does not mention "expert" and therefore does not extend a work-product protection to communications between expert and attorney. She said Rule 4003.5, on discovery of expert testimony related to trial preparation material, does not provide for access to the communications automatically as of right, but at least allows attorneys to show cause as to why the information may be relevant.
John P. Gismondi, of the Law Offices of Gismondi & Associates in Pittsburgh, refuted the notion that the issue before the justices is one of "high theory."
Instead, the plaintiffs’ attorney said it’s an issue of "case management."
Gismondi added a number of committees have reviewed the issue and all have come to the same conclusion: Opening up the gates of discovery to attorney-expert communication as the federal courts have done would invite unnecessary mischief, time and expense into the litigation process.
The comments came during the argument of Barrick v. Holy Spirit Hospital in the second of a two-day session Wednesday in Pittsburgh. A ruling from the justices has been long awaited after the Superior Court reversed itself in November 2011 and ruled, 8-1, that such communications are not discoverable.
The high court took up the case to determine whether the Superior Court’s interpretation of Rule 4003.3 "improperly provides absolute work-product protection to all communications between a party’s counsel and their trial expert."
In Barrick, Sodexho served its subpoena on treating physician Dr. Thomas Green, who also served as an expert witness for plaintiffs Carl J. and Brenda L. Barrick. It sought the medical records of Carl Barrick, who was injured on Sodexho-managed property at Holy Spirit Hospital when a chair he was sitting on in the hospital cafeteria collapsed.
Green’s practice, Appalachian Orthopedic Center, informed Sodexho that it would turn over the patient’s file, but would exclude records that pertained to Barrick but were not created for treatment purposes. Sodexho filed a motion to compel for failure to comply with the subpoena. Appalachian argued the subpoena cannot include trial preparation materials in connection with communications between Barrick’s counsel and Green.
Holy Spirit Hospital’s attorney, Brett W. Farrar of Dickie, McCamey & Chilcote in Pittsburgh, argued treating physicians are historically fact witnesses subject to a different set of discovery rules than experts.
Farrar argued that when there are communications between an attorney and a treating physician, and that treating physician is later designated an expert witness, then those communications can no longer be considered attorney work-product.
"To insulate that person by unilaterally designating them an expert is incorrect," Farrar said.
Gismondi said that Pennsylvania case law has, for years, allowed such witnesses to wear "two hats," recognizing the fact that lawyers cannot compel treating physicians to render expert testimony.
During Gismondi’s presentation, Baer said the matter really boiled down to whether the Superior Court went too far in its ruling, when a majority of the court ruled Rule 4003.5(a)(1) narrowly defines what a party may ask an opposing expert to answer in interrogatories.
Writing for the majority, Judge Sallie Updyke Mundy said: "As this section of the rule specifies, a party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion. Any other interrogatory, aside from these two specific inquiries, exceeds the scope of the plain language contained within Pa.R.C.P. 4003.5(a)(1)."
When the Superior Court decided the case, Judge Mary Jane Bowes wrote a concurring and dissenting opinion saying she agreed with the majority that Rule 4003.5 prohibits the use of a subpoena directed to the expert to obtain documents in the expert’s file.
She disagreed, however, that Rule 4003.3 "affords blanket work-product protection to all communications vis-a-vis the attorney and his expert."
Bowes said the majority recognizes that an in camera review might be necessary, and such an approach implicitly recognizes that such correspondence is not attorney work-product per se.
"I cannot reconcile these statements by the majority, however, with its simultaneous wholehearted approval of appellants’ contention that ‘forcing disclosure of any communications between counsel and an expert witness violates the work-product privilege contained in 4003.3,’" Bowes said.
She said the majority’s blanket conference of work-product protection "impermissibly expanded Rule 4003.3 with far-reaching implications" and potentially infringes upon a party’s right to show cause as to why additional expert discovery is warranted.
Bowes also took issue with using the attorney work-product doctrine to protect expert communications with an attorney because, as she put it, the majority concluded the expert is a party representative falling within the "penumbra of Rule 4003.3."
Rule 4003.3 lists a litigant’s representative as an "attorney, consultant, surety, indemnitor, insurer or agent," but does not mention expert.
Addressing Hersperger, Baer said his response to this point in Bowes’ dissent was, "So what?"
The attorney responded that Pennsylvania has a separate rule, in Rule 4003.5, for experts. Consultants, she pointed out, generally don’t testify at trial.
Immediately following that point, Baer asked Hersperger the basic premise of her argument: Was it that attorney-expert communications are not protected by Rule 4003.3, that they’re allowed under Rule 4003.5, or a "conflation" of the two rules?
Hersperger responded that it was a mixture of the two rules. While you don’t get the information as of right under Rule 4003.5, a party should be able to show cause under that rule, she said, later adding that the Superior Court’s ruling stands to block her from that opportunity.
Incidentally, at least based upon her impression of an in camera review of the privileged communications, she said she thought the defense would be able to show cause.
As Todd expressed concern with the practical implications of a reversal, Hersperger responded by saying an attorney is disadvantaged by not being able to discover the origins of an expert’s opinion to see if that expert borrowed from outside data or was somehow otherwise influenced.
Todd responded by asking if that was not the point of cross-examination — to grill an expert on the grounds that underlie his or her opinion.
Hersperger said in some instances that was not available, namely cases where the claim is under $50,000 and experts are not subject to cross-examination, as their opinions are submitted solely through their reports.
Addressing Hersperger, and hearkening back to his days as an Allegheny County Court of Common Pleas judge, Baer said the defense position was interesting as a "law school question," but questioned its applicability in the real world of trial practice.
Baer pointed to what he called a certain "give and take" between a lawyer and his or her expert, which an opposing attorney could portray as a conversation in which the lawyer helped form the expert’s opinion for him or her.
Speaking as the lawyer who had just collected such a conversation on discovery, Baer said: "Aha! You planted that in the expert’s head."
He added: "Trying to cut with a surgical scalpel the origination of an expert’s hypothesis … it just seems to me to be chaos."
Toward the end of the argument, Baer asked Gismondi if, under the Superior Court’s interpretation, he would object on work-product privilege grounds to the following line of inquiry: An attorney, cross-examining his opponent’s expert, asks the witness whether opposing counsel (in other words, the attorney who retained the expert) spoke with the expert before he testified.
Gismondi said he would not object under the work-product privilege.
Justice J. Michael Eakin seemed focused on why a plaintiff would need an expert witness in a case where a chair broke and a plaintiff fell and broke his back.