Do you believe that all communications, especially written, between the attorney and expert are confidential and protected?
Last Friday, in Barrick v. Holy Spirit Hospital, No. 948 MAL 2011 (Pa. Aug. 31, 2012) the Pennsylvania Supreme Court granted the Hospital’s Petition for Allowance of Appeal limited to the following issue:
Whether the Superior Court’s interpretation of Pa.R.C.P. No. 4003.3 improperly provides absolute work product protection to all communications between a party’s counsel and their trial expert?
Back on November 23, 2011, an en banc panel of the Pennsylvania Superior Court issued a 38 paged Opinion that served to overturn the trial court’s decision to allow one party to review written communications by the opposing party to the opposing party’s expert in the case of Barrick v. Holy Spirit Hospital, 1856 MDA 2009 (Pa. Super. Nov. 23, 2011)(8-1 Opinion by Mundy, J.)(Bowes, J. concurring and dissenting).
The trial court’s decision was overturned even though the Plaintiff’s attorney admitted in this matter that his written communications to the Plaintiff’s medical expert were specifically designed to address the expert’s formulation of his expert report for trial and even though the trial court judge had found, after an in camera inspection of the written communications that such communications could have “materially impacted” the expert’s formulation of his expert report.
No briefing schedule or argument date as of yet.
Schmidt Kramer – Ph: (717) 888-8888.