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HomeMy WebLinkAbout2007-3604 Civil CARL J. BARRICK and : IN THE COURT OF COMMON PLEAS OF BRENDA L. BARRICK, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : CIVIL ACTION – LAW vs. : NO. 07-3604 CIVIL : HOLY SPIRIT HOSPITAL OF : THE SISTERS OF CHRISTIAN : CHARITY, Individually and doing : business as HOLY SPIRIT : HOSPITAL; SODEXHO : MANAGEMENT, INC.; SODEXHO: OPERATIONS, LLC, and LINDA J. : LAWRENCE, : Defendants : JURY TRIAL DEMANDED IN RE: OPINION PURSUANT TO RULE 1925 The plaintiffs have appealed from our order of October 16, 2009, directing the Appalachian Orthopedic Center to produce, without limitation, all documents pertaining to the plaintiff, Carl J. Barrick. Appalachian Orthopedic Center is the office of Thomas J. Green, M.D., Mr. Barrick’s treating physician. The wrinkle in this case is that Dr. Green is also the plaintiff’s expert witness. In response to a records subpoena, Dr. Green provided all treatment records for the plaintiff. Certain documents were withheld and became the subject of a subsequent motion to enforce the records subpoena. By agreement of the parties, we conducted an in camera inspection of the documents. Because the plaintiffs contend that the contents of the documents 1 ought not to be disclosed and have appealed from our order requiring same, we feel constrained 1 Generally, discovery orders are not final and are therefore unappealable. Our courts have held, however, that discovery orders involving privileged material are nevertheless immediately appealable as collateral orders. Pa. Rule of Appellate Procedure 313(a). See T. M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa.Super. 2008). NO. 07-3604 CIVIL to discuss the documents only in the vaguest of terms. It is impossible, however, to address the issue before us without making some reference to their content. The plaintiffs refer to these documents as “communications between Dr. Green and counsel for Plaintiffs respecting the role of Dr. Green as an expert witness for Plaintiffs.” Of necessity, the communications in this case involve a discussion of the factual background of the case and the circumstances under which the plaintiff suffered injury. In his Statement of Matters Complained of on Appeal, the plaintiffs contend that we erred in requiring disclosure of records that go beyond records that were developed by the physician for the purposes of diagnosis and treatment. Saying it another way, the plaintiffs contend that it is “contrary to law to require disclosure of records of the physician that consist of letters and emails between the physician … and counsel for a plaintiff that were prepared in anticipation of litigation and that are addressed specifically to the role of the physician as an expert witness …” In support of their contentions, the plaintiffs rely on the case of Shambach v. Fike, et al., 82 Pa. th D.&C. 4 535 (Lack. 2006). We are satisfied that this case is inapposite to the matter sub judice. The Shambach case involved the scope of the deposition of a physician who was both a treating physician and an expert. The case observes that depositions of an expert are not normally allowed. A deposition of a treating physician is routine. The case holds (correctly, we believe) that the deposition of the treating physician could not be extended to include questioning of the physician in his capacity as an expert. Here, we are not talking about the scope of a deposition but, rather, the disclosure of correspondence. We are satisfied that this case is more akin, if not identical, to the situation faced by the th court in Pavlak v. Dyer, 59 D.&C. 4 353 (Pike 2003). There the issue was framed as follows: 2 NO. 07-3604 CIVIL During discovery, defendant Michael Dyer, through his attorney, issued a subpoena requesting medical records and documents from plaintiff’s expert witness, who is also the plaintiff’s treating physician. Although plaintiff’s lawyer conceded at oral argument that the medical records were discoverable because plaintiff’s physical condition is at issue, he objected to the discovery of attorney correspondence sent to his expert witness on the grounds that such letters constituted attorney work product. Defendant counters by arguing that anything the testifying expert witness reviews in preparing his testimony is discoverable. Essentially, this discovery dispute focuses on the tension between Pa.R.C.P. 4003.3 which protects attorney work product from discovery, and Pa.R.C.P. 4003.5 which allows for the discovery of “facts known and opinions held” by testifying expert witnesses including the grounds for each opinion, even if those facts were acquired in anticipation of litigation. Id. at 355. The court in Pavlak observes that following “an exhaustive review of Pennsylvania law on the subject” there is no controlling authority on this issue. The court does note, however, the trend in the federal courts to the effect that expert disclosure requirements “trump” any assertion of the work product privilege. After reviewing federal case law, the trial court developed something of a compromise solution. Even the leading federal practice treatises are equally divided. Section 26.80 [1][a] of Moore’s Federal Practice (Third ed., 2001) states that the 1993 amendments were not intended to abrogate the enhanced protection of opinion work product recognized by the Supreme Court in Upjohn v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 66 L.Ed. 2d 584 (1981). But Wright and Miller’s Federal Practice and Procedure § 1203.1.1 (1994) states that “counsel should now expect that any written or tangible data provided to testifying experts will have to be disclosed.” 3 NO. 07-3604 CIVIL One of the policies behind the “bright-line” full disclosure rule is that litigation certainty will be achieved because lawyers will know that any documents provided to a testifying expert will be subject to discovery. But Pennsylvania’s lack of clear appellate authority favoring such a bright-line rule, and the difference between this state’s discovery rules and the federal rules, makes this court reluctant to adopt such a policy. While a full disclosure rule would augment the defendant’s ability to discern the amount of attorney influence on the expert’s testimony, that reason alone is not enough for us to adopt such a wide-sweeping rule. Id. at 363. The Pike County Court then went on to grant, in part, the defendant’s motion to strike the plaintiff’s objection to its subpoena. It ordered plaintiff’s counsel to provide defense counsel with a redacted copy of all written correspondence between the plaintiff’s attorney and the plaintiff’s expert witness. The court allowed plaintiff’s counsel to redact his opinion work product from the letters before forwarding them to defense counsel. The court then went on to provide for further court intervention, a step which we find to be troublesome. The court directed that: In order to insure that only attorney opinion work product (the lawyer’s mental impressions, conclusions, legal research, legal theories and strategy) has been edited out, plaintiff’s attorney is also ordered, within seven days, to provide this court with copies of the redacted correspondence and copies of the complete, unedited letters. If this in camera inspection of the documents reveals that plaintiff’s counsel has inappropriately redacted factual allegations or anything else that does not constitute attorney opinion work product, then this court shall forward copies of the unedited letters to defendant’s attorney as an immediate sanction. Id. at 368. 4 NO. 07-3604 CIVIL We are more than concerned with the adoption of a discovery rule which requires in camera review in order to insure attorney compliance. Our distinguished colleague from Allegheny County, the Honorable R. Stanton Wettick, Jr., has authored an article on in camera inspections which appears in Allegheny County Discovery Opinions, Volume 2, Pittsburgh: Allegheny County Law Library, 1991. As he notes: The major reason that other judges and I are reluctant to conduct in camera inspections is because we are not comfortable making decisions without the participation of both parties. We do not have the background of the case that counsel has. Without this background and without input from counsel, we are frequently not in a position to make an informed judgment concerning the discoverability of a document. A review of documents in camera is likely to raise more questions than it answers. We note that it is seldom possible to discern where the legal theory of counsel ends and the medical opinion being sought from the expert begins. Also, in many of these cases, the documents in the expert’s file will include correspondence not only to the expert but copies of correspondence from the expert as well. The responses of the expert will, of necessity, allude to the legal theories in correspondence from counsel. Any attempt to redact out this information becomes impracticable. It is for the foregoing reasons that we have adopted a “bright line” rule in this case. We have no quarrel with the proposition that an attorney’s work product is not discoverable. We are equally satisfied, however, that where an expert is being called to advance a plaintiff’s case in 5 NO. 07-3604 CIVIL 2 chief and the nature of the expert’s testimony may have been materially impacted by correspondence with counsel, such correspondence is discoverable. BY THE COURT, December 15, 2009 _______________________________ Kevin A. Hess, J. Wayne F. Shade, Esquire For the Plaintiffs Thomas M. Chairs, Esquire For Defendant Holy Spirit Hospital Stephen E. Geduldig, Esquire For Defendants Sodexho and Lawrence Appalachian Orthopedic Center Ltd. :rlm 2 The situation may be very different where the plaintiff has retained an expert for the purpose of assisting in cross- examination of an opponent’s expert. 6