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The Pennsylvania Superior Court, in Barrick v. Holy Spirit Hospital, has held that communications between counsel and their trial experts are discoverable. This ruling carries significant implications for both health care providers who act as expert witnesses and defense counsel.

The case involved an injury which occurred when Plaintiff’s chair collapsed in the hospital cafeteria. He sought treatment from an orthopedic surgeon, who later agreed to serve as his expert witness for trial. Defense counsel served a subpoena on Plaintiff seeking production of his complete “medical file.” Plaintiffs’ counsel produced treatment records, but objected to production of electronic mail and written correspondence between themselves and the orthopedic expert, citing the attorney work product privilege. Defendants filed a motion to compel. The Cumberland County Court conducted an in camera review of the correspondence, and subsequently directed its production. An appeal was immediately filed.

The Superior Court upheld the trial court’s Order, finding that there is an inherent conflict between Rule 4003.3 (prohibiting disclosure of the mental impressions of a party’s attorney or representative) and Rule 4003.5 (requiring disclosure of the grounds for an expert’s opinions). The Court held that in order to reconcile this conflict, “the attorney’s work product doctrine must yield to discovery of those communications.” The Court rejected the argument that a trial expert is a party’s “representative” (which includes a “consultant”) under Rule 4003.3, and also noted that the Rules distinguish between an expert who will testify at trial “and an expert who serves as a consultant only and will not testify.”

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