John Kennedy Law

Communication Between Lawyer and expert Medical Witness are NOT Discoverable

The Pa. Supreme Court has ruled that communications from the defendant’s lawyer to an expert medical witness are not discoverable.

http://scholar.google.com/scholar_case?q=barrick+holy+spirit&hl=en&as_sdt=2,39&case=10141454655492957526&scilh=0

According to the Court:

We further conclude that, even if Sodexho had attempted to show cause pursuant to Pa.R.C.P. 4003.5(a)(2), it would not have been entitled to discover the correspondence in this case. Insofar as the information sought is protected by the work-product doctrine, showing cause under Pa.R.C.P. 4003.5(a)(2) requires demonstrating why the privilege must yield to the need for discovery. See Cooper, supra at 494-495 (reasoning that the proponents of discovery bear the burden of demonstrating why they are entitled to additional discovery under Pa.R.C.P. 4003.5(a)(2) in regard to expert testimony). Although the work-product doctrine is not absolute, we noted above that the privilege only surrenders to the need for discovery when the attorney’s work product itself becomes relevant to the action. Pa.R.C.P. 4003.3, Explanatory Comment at ¶ 4-5. Here, unlike the examples in the explanatory comment accompanying Pa.R.C.P. 4003.3, the correspondence is only relevant because of the subject matter discussed between Appellants’ counsel and Dr. Green. The correspondence itself is not relevant to this action. In stark contrast to the examples in the explanatory comment, Appellants’ action relies upon the opinions and analyses of the expert witness, not those of their attorneys. Id. (providing examples illustrating that attorney work product “is not protected against discovery” where a party’s claim or defense relies upon the opinion of its attorney). Therefore, even if Sodexho had complied with Pa.R.C.P. 4003.5(a)(2), the correspondence between Appellants’ counsel and Dr. Green was not discoverable. Accordingly, we conclude that Pa.R.C.P. 4003.3 serves as a separate and independent basis for our decision.

In closing, based upon our interpretation of the Pennsylvania Rules of Civil Procedure, drawing upon the plain language of the rules and the case law of this jurisdiction, we conclude that the trial court committed an error of law in granting Sodexho’s motion to enforce. As our Supreme Court has previously determined, other than the interrogatories described in Pa.R.C.P. 4003.5(a)(1), the Rules of Civil Procedure require that a party show cause to obtain further discovery from an expert witness. Cooper, supra at 492. Sodexho in this case failed to make any such showing. Thus, we hold that Sodexho’s subpoena seeking documents from Appellants’ expert witness was beyond the scope of Pa.R.C.P. 4003.5, without first showing cause as to why such a discovery request was needed. Furthermore, the written communication between counsel and an expert witness retained by counsel is not discoverable under the Pennsylvania Rules of Civil Procedure to the extent that such communication is protected by the work-product doctrine, unless the proponent of the discovery request shows pursuant to Pa.R.C.P. 4003.5(a)(2) specifically why the communication itself is relevant. As such, we also hold that Pa.R.C.P. 4003.3 immunizes from discovery any work product contained within the correspondence between Appellants’ counsel and Dr. Green.

Therefore, for all the reasons discussed in our above analysis, we hold that the correspondence at issue in this case is not discoverable under the Pennsylvania Rules of Civil Procedure pursuant to both Pa.R.C.P. 4003.3 and Pa.R.C.P. 4003.5.