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December 2011 Evidence Law Update

The Court of Common Pleas of Cumberland County’s year old decision that all expert witness materials, including correspondence between the expert and counsel, are discoverable has been abrogated by the Pennsylvania Superior Court.

Much to the relief of the plaintiff’s bar, and just as much (if not more) to the relief of the defense bar, the Superior Court’s decision in Barrick v. Holy Spirit Hospital abrogated the Court of Common Plea’s ruling that the entire file of a treating doctor who will also be an expert witness is not fair game for discovery.

In Barrick, the lower court ordered that a treating doctor, who had also been designated as an expert witness for trial, turn over his complete file on a patient in response to a subpoena.  The issue here was that the doctor’s file on the injured patient included letters and e-mails between the doctor and counsel addressing trial strategy.

In crafting their decision, the Superior Court discussed the standard discovery rules that govern the production of a treating doctor’s medical records, the specific rules covering disclosure of expert witness information and the “work product” doctrine.  At the conclusion of their review of these standards the Court ultimately held that although the medical records of treating/expert doctor’s patients are discoverable that anything beyond that was shielded from disclosure by the work product doctrine.  If the other side wants additional information they will need to obtain it through the normal discovery practices for exchanging expert witness information (answers to expert interrogatories or a signed report) or shows grounds under Pa RCP 4003.5(a)(2) to circumvent the “work product” doctrine.

As to the impact of the decision on the day to day practice of PI litigation it brings to mind the old adage of “what’s good for the goose is good for the gander” and it is probably safe to say that both plaintiff and defense attorneys are more comfortable keeping their discussions with their experts private even if that means the other side can do likewise.

To read the entire decision in Barrick click here.