The Pennsylvania Supreme Court appears poised to reshape the ground rules on whether attorney-expert communications are subject to discovery, as the justices are considering the issue in a pending case and a proposed rule change.

Some attorneys favor having a bright-line rule banning any discovery of those communications, while some attorneys favor having some exceptions, as the federal courts have. If Pennsylvania did provide some discovery exceptions about attorney-expert communications, some lawyers would favor allowing depositions of experts, while others only would want to see interrogatories of experts allowed.

Both the eight-member en banc Superior Court majority in Barrick v. Holy Spirit Hospital, pending before the Supreme Court, and the Pennsylvania Civil Procedural Rules Committee favor a bright-line rule against such discovery.

Kevin P. Allen, a member of Eckert Seamans Cherin & Mellott in Pittsburgh who practices in commercial law, said the instincts of the authors of the proposed new rule and the Barrick decision "are good, because they want to bring clarity to the issue of what is discoverable and what is not discoverable because it has been for years unclear. … But there should be certain exceptions that would permit discovery in unique circumstances," just as the current rule has a safety valve of allowing inquiry into such communications if cause is shown.

Allen said he would not be surprised if the civil procedural rule that comes from the Supreme Court or the justices’ decision in Barrick retains some allowances for discovery of attorney-expert communications. "I can’t imagine everything would be immunized and there is not a way to get at any form of communications," he said.

The state civil rules committee said in a proposed amendment to Pa.R.C.P. 4003.5(a)(1) that "a party may not discover the communications between another party’s attorney and any expert who is to be identified … regardless of the form of the communication."

Superior Court Judge Sallie Updyke Mundy, writing for the majority in Barrick, said "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)."

During oral argument before the Supreme Court, plaintiffs attorney John P. Gismondi, of the Law Offices of Gismondi & Associates in Pittsburgh, argued 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.

In contrast, the Federal Rules of Civil Procedure except work-product protection for communications between attorneys and their experts regarding the expert’s compensation, the facts or data that the attorney provided and the expert considered in forming his or her opinion, and the assumptions that the attorney provided and the expert relied upon in forming his or her opinion.

The Pennsylvania committee rejected instituting some of the exceptions that the federal rules provide because the committee saw no indication that it was not working to have "questions regarding the compensation of the expert" be addressed at trial. The committee also said facts or data and the assumptions provided by counsel to their retained experts have to be disclosed because experts have to state the facts and opinions to which they are expected to testify in their expert reports.

Former Pennsylvania Bar Association President Thomas G. Wilkinson Jr., a member of Cozen O’Connor in Philadelphia who practices in business litigation, business torts, complex insurance coverage and professional responsibility matters, said that while "it’s sometimes easier to create bright-line rules … there are some communications between lawyers and experts that would not in the normal course qualify for work-product protection. It’s important to recognize the distinction."

Wilkinson also argued in favor of consistency between the federal and state court rules in order to reduce the possibility of confusion among lawyers and to reduce the incidence of malpractice.

Thomas J. Duffy, a plaintiffs lawyer with Duffy & Partners in Philadelphia who handles cases as varied as medical malpractice, motor vehicle accidents and aviation law, said lawyers cannot just wait until cross-examination during trial to address any issues with the other side’s experts.

"You don’t want to ask a question on cross-examination that you don’t know the answer to," Duffy said. Duffy cited a situation in which his expert was asked about his fee agreement by opposing counsel and his expert explained that his fee was given to charity.

"If the expert’s opinion was molded, shaped or formed by the attorney, then the jury should know that" is not the expert’s original opinion, Duffy said.

But Duffy said not all of an attorney’s work product should be available to the other side without having to dig it out on their own, Duffy said.

If there is a bright line against any discovery of communications with experts, "everybody fakes and hedges," Duffy said. "It’s a form of deception on the court when you pretend certain things didn’t happen."

Jonathan B. Stepanian, a shareholder with McQuaide Blasko in Hershey who practices in the area of medical malpractice and health law, said the clearest way to provide guidance on this issue would be by rule amendment and not in case-specific rulings.

Stepanian said he likes the federal rule, but he added "there should be a limit to protect information provided by counsel or communications between counsel and the expert. The reason I think that is because open communications between counsel and the expert facilitate the expert’s review. It helps narrow the expert’s areas of inquiry and therefore helps reduce costs."

Too much revelation of counsel-expert communications would show how lawyers see their cases, Stepanian said.

Duffy said he disfavors depositions of experts before trial because he thinks they would not advance the ball to get cases resolved or tried expeditiously.

Stepanian, however, said he does favor allowing depositions in state court, although he does not think Pennsylvania is likely to abandon its reliance on expert reports.

Although expert reports are meant to reduce costs, "I don’t think they ultimately achieve that goal, because your opponent doesn’t get the opportunity to size up the expert before the trial," Stepanian said.

Litigation is getting more and more expensive, and it is understandable that many lawyers do not want to have routine depositions of experts in state court, Wilkinson said. But then disclosures made by experts have to be adequately detailed and discovery should be permitted if the experts shifted position because they were pressed to do by the lawyers who retained them, Wilkinson said.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter 
@AmarisTLI. •