Legal News

Barrick v. Holy Spirit Hospital Withdrawn

By Brian Harris

By James Ronca
Special to the Legal

Good news. On Nov. 19,the  Pennsylvania Superior Court granted a petition for en banc re-argument in Barrick v. Holy Spirit Hospital, and the original opinion in this case has also been withdrawn. 

As you remember, this was a case of first impression. The original opinion has caused great concern, as it required counsel to produce confidential correspondence, both letters and e-mail between counsel and a treating physician -- who had been identified as an expert witness in this medical malpractice case -- during discovery pertaining to the expert's formulation of his opinion for trial.

The court stated it was "compelled to find 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."

The impact of the opinion was magnified by the fact the Federal Rules have changed in exactly the opposite direction, protecting such communication from discovery effective December 2010.

The net result was counsel for both plaintiffs and defendants being hit with interrogatories and requests for production asking for communications with the experts. The case also completely changed the practice we all have been operating under for years: that communication with litigation experts is attorney work product and is therefore privileged and not subject to discovery. The case opened the floodgates of collateral discovery that went right to the heart of a lawyer?s work product (including in particular the lawyer?s mental impressions and theories) protected forever by Pa.R.C.P. 4003.3 and case law.

Imagine the chilling effect of the decision where you could not bounce ideas off an expert, ask questions or make comments about a draft report for fear someone would get it and accuse the lawyer of writing the expert?s report for him. It is one thing (good litigation practice) to ask questions and raise issues. It is quite another to convince the expert to change substantive opinions not supported by facts or science (questionable ethics). 

The underlying opinion was based upon particularly egregious facts, inspected in camera by the trial judge who felt compelled to allow discovery under the circumstances. So Barrick ended up the classic case of bad facts making bad law. Hopefully, now it will be reversed or modified, and the Supreme Court will clarify through rulemaking.

James Ronca is a shareholder at Anapol Schwartz Weiss Cohan Feldman & Smalley.  He represents victims of medical injury cases involving pharmaceutical and medical devices.  He most recently served as co-lead plaintiffs counsel for the Trasylol multidistrict litigation centered in the U.S. District Court for the Southern District of Florida and plaintiffs' liaison counsel for the Philadelphia Common Pleas Court Trasylol mass tort program.  He also advocates for victims in major car and truck accident cases. Contact him at jronca@anapolschwartz.com.

Full post as published by The Legal Intelligencer Blog on November 23, 2010 (boomark / email).