Barrick v. Holy Spirit Hospital, et al., 2010 PA Super 170 (J. Olsen, September 16, 2010)

Case of first impression: take warning—communications between counsel and his testifying expert are discoverable.

In a case of first impression, the Pennsylvania Superior Court held that "if an expert witness is being called to advance a party's case-in-chief, the expert's opinion and testimony may be impacted by correspondence and communications with the party's counsel; therefore, the attorney's work product doctrine must yield to discovery of those communications." A party is entitled to the discovery of information that would enable them to ascertain whether a testifying expert's opinions are those of his own or whether the testifying expert merely intended to parrot what he was told by counsel. An opposing party is entitled to discover the extent of counsel's influence of his testifying expert's opinions and whether counsel directed his expert to reach certain conclusions or to disregard certain facts or take other facts into consideration. As such, through discovery, a party may obtain written communications between counsel and his testifying expert. As to oral communications between counsel and his testifying expert, the court held that an "expert may still be cross-examined during trial about oral communications with counsel, and said communications would not be protected." Finally, the Barrick Court held that their decision applies to the case in which it was announced and to all pending cases. Plaintiff's counsel very recently filed a petition with the Superior Court for reargument en banc.

Case Law Alert - 4th Qtr 2010