An equally divided Pennsylvania Supreme Court has affirmed a superior court decision adopting the bright-line exclusion from discovery of all communications between a lawyer and an expert witness. Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, No. J-26-2013 (Pa., decided April 29, 2014). The issue arose in a case involving injuries allegedly sustained when a chair collapsed in the cafeteria of the defendant hospital. The expert was initially identified as the plaintiff’s treating ortho- pedic surgeon, and early requests for his records were unopposed. After the plaintiffs designated him as an expert witness, however, they resisted disclosure on the ground that all communications between counsel and the witness were privileged.
Those justices agreeing with the intermediate appellate court concluded “that it is preferable to err on the side of protecting the attorney’s work product by providing a bright-line rule barring discovery of attorney-expert communications.”They reasoned that “attempting to extricate the work product from the related facts will add unnecessary difficulty and delay into the discovery process” and noted that a rules committee proposal, if adopted, will “embrace unambiguously the bright-line rule denying discovery of all attorney-expert communications.”Those justices opposing a blanket prohibition would have found no particular burdens for counsel and courts to separate core attorney work product from matter subject to discovery, such as information relating to expert compensa- tion and the facts and assumptions on which the expert relies. They also objected to the adoption of a new discovery rule in the context of litigation