Berman & Asbel, LLP

PA court: Opponent can obtain correspondence between attorney and expert witness

A new opinion from the Pennsylvania Superior Court says that an opposing party can subpoena from an expert who will be testifying in a case the correspondence that the witness had with the attorney who retained him or her.  Generally, when a request for discovery asks for correspondence coming from an attorney, an objection will be raised that this is privileged attorney work product.  There is a rule of civil procedure that protects the mental impressions and work product of an attorney representing a party in a case from having to be disclosed.  However, there is also a rule which allows discovery of material regarding the opinions of an expert and the facts underlying those opinions.  In the case of Barrick v. Holy Spirit Hospital of Sisters of Christian Charity, the defense sought the correspondence between the plaintiff's attorney and the expert to examine whether and how the attorney was affecting the opinion of the expert.  The Superior Court ruled that the interest in obtaining the information about the expert's opinion on which he or she will testify takes priority over protecting attorney work product.

This opinion was issued on September 16.  It remains to be seen whether the plaintiffs in the case will attempt to appeal to the Pennsylvania Supreme Court.

The lesson for attorneys using expert witnesses is to avoid written correspondence with expert witnesses about the substance of their opinions and testimony.  Any such communications should only be oral and should not be recorded.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

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