Tuesday, January 10, 2012

PA Expert Discovery Limited to Facts and Opinions Only

Pennsylvania personal injury attorneys were thrilled when, on November 23, 2011, the original Barrick v. Holy Spirit Hospital decision, which allowed defendants discovery of your emails and communications with your own experts, was decisively overturned.

In Barrick v. Holy Spirit Hospital, 2011 Pa. Super 251, the Superior Court's 8-1 en banc decision reversed the original appellate opinion.  This decision broadly protects attorneys rights to discovery-free discourse with a hired expert.

The new opinion holds that a request for expert communications goes beyond the literal scope of Pa.R.C.P. 4003.5(a)(1), which says an attorney is only entitled to the facts and opinions- with basis- held by an opposing expert.  It also now holds that under the "good cause" language in 4003.5(a)(2) the party seeking discovery still doesn't get communications between counsel and his/her expert.  The opinion also suggests that attorney-expert communications are separately protected from disclosure under the work product doctrine of rule 4003.3, which may be construed to mean that the defendant is not even permitted to review your expert's file at trial or deposition and review the attorney's letters if they contain any case impressions.

Though many Pennsylvania personal injury attorneys were involved in staving off this decision, much credit should go to attorneys John Gismondi, Esq. and Terry Hyman, Esq. who wrote and argued the amicus brief respectively. Share this post :
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