Barrick v. Holy Spirit Hospital: Attorney-Expert Communications Remain Privileged Due to PA Supreme Court Split
A six justice Supreme Court panel was unable to reach a consensus on the issue of “whether the Superior Court’s interpretation of Pa.R.C.P. 4003.3 improperly provides absolute work-product protection to all communications between a party’s counsel and their trial expert.” As such, the Superior Court’s November 2011 decision, which created a bright line rule barring discovery of attorney-expert communications, remains the law in Pennsylvania.
In his opinion supporting affirmance, Justice Max Baer stated that it is preferable to create a bright-line rule barring discovery of attorney-expert correspondence, thereby erring on the side of protecting attorney work-product. Although Justice Baer acknowledged that there may be an extremely limited category of attorney-expert correspondence that does not include work-product, he concluded that allowing for discovery of such documents would result in unnecessary litigation and in camera review of documents.
Justice Thomas G. Saylor wrote an opinion in support of reversal stating that the opinion in support of affirmance fails to address factors such as counsel manipulation of an expert’s opinion. While he agreed that portions of correspondence constituting attorney work-product must be protected, he stated that all other material should be discoverable. He disagreed with the premise that this would result in needless and burdensome litigation.