Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity

CONCURRING AND DISSENTING OPINION BY

BOWES, J.:

The majority holds that Pennsylvania Rules of Civil Procedure 4003.3 and 4003.5 each independently renders letters and emails between counsel and his expert witness non-discoverable. I agree that Pa.R.C.P. 4003.5, which defines the permissible methods and scope of expert witness discovery, precludes the use of a subpoena directed to the expert to obtain documents in the expert’s file. Thus, I concur in that portion of the majority opinion. However, I disagree with the majority that Pa.R.C.P. 4003.3 affords blanket work-product protection to all communications vis-a-vis the attorney and his expert. From that part of the majority writing, I respectfully dissent.

Preliminarily, I am perplexed that the majority berates Sodexho for using a subpoena to obtain discovery from an expert “in complete disregard of the plain language of Pa.R.C.P. 4003.5,” Majority Opinion at 807, but is willing to overlook Appellants’ non-compliance with the procedures set forth in Pa.R.C.P. 4009.21(c) for objecting to a subpoena. The majority fails to appreciate that when Sodexho first served a subpoena upon Appalachian on March 19, 2008, Dr. Green was simply Appellant’s treating physician. The use of a subpoena is a sanctioned method for seeking discovery from a non-party, including a treating physician. See Pa.R.C.P. 4009.21.

On June 8, 2009, Sodexho sought updated records and correspondence via subpoena and, again, Appellants did not object.12 Sodexho still believed that it was dealing with a treating physician and using an acceptable discovery method to do so. Unbeknownst to Sodexho, however, Appellants had retained Dr. Green as an expert witness on April 23, 2009. Appellants did not object to the use of a subpoena seeking the expert’s correspondence and other documents on the ground that Dr. Green was a testifying expert witness and that the use of a subpoena exceeded the scope of permissible discovery of experts under Rule 4003.5. Instead, Appellants asked Appalachian not to disclose letters and emails between counsel and Dr. Green that addressed how the physician should frame his expert testimony, and Appalachian complied. Appellant’s original brief at 7.

Sodexho learned for the first time that Dr. Green was Appellants’ trial expert on July 16, 2009, when Appellants opposed Sodexho’s motion to enforce the subpoena and asserted that any correspondence between counsel and Dr. Green was privileged. At that point, the trial court had already scheduled argument on the motion to compel and the parties had agreed to an in camera, review to determine if the correspondence was work-product privileged. Had Appellants timely objected and articulated Rule 4003.5 as the basis for their objection, the trial court could have ruled on this issue without an in camera examination.

As the majority correctly points out, a party is not permitted to obtain written documents directly from an opposing expert; discovery of an expert is limited to *815interrogatories directed to opposing counsel seeking a summary of the “substance of the facts and opinions to which the expert is expected to testify!,]” and the “grounds for each [of his or her] opinion[s],” or the expert’s report. Pa.R.C.P. 4003.5(a)(1)(b). That rule provides in full:

Rule 4003.5. Discovery of Expert Testimony. Trial Preparation Material
(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(1) A party may through interrogatories require
(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert.
(2) Upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.

Pa.R.C.P. 4003.5(a)(1)-(2). See Cooper v. Schoffstall, 588 Pa. 505, 905 A.2d 482 (2006) (holding that Rule 4003.5 restricts the scope of all discovery from non-party witnesses retained as experts in trial preparation). Interrogatories calculated to obtain the substance of the expert’s facts and opinions are the proper method of expert discovery. I agree that the use of a subpoena to obtain the expert’s correspondence runs contrary to the specific language of the above rule.13 Although the rule permits additional discovery “upon cause shown,” no such argument was advanced in this case to justify any alternate forms of discovery. Bearing in mind that Rule 4003.5 is a discovery rule and extends its protection only until trial, I am in agreement with the majority’s application of this rule to these facts.

However, I must part company with the majority regarding the balance of its holding. The majority, instead of relying solely upon Rule 4003.5 as the basis for its decision, also opines that the correspondence at issue constitutes work product and is protected pursuant to Rule 4003.3. Majority Opinion at 811. That rule states:

Rule 4003.3. Scope of Discovery. Trial Preparation Material Generally
Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indem-nitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his *816or her conclusions, opinions, memoran-da, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.

Pa.R.C.P. 4003.3.

The majority initially reiterates what I believe to be the long-standing view that where documents such as the correspondence herein allegedly contain, inter alia, the attorney’s mental impressions and strategies, “in camera review may be necessary in order to determine precisely what aspects of the correspondence fall within the parameters of the attorney work-product doctrine.” Majority Opinion at 812. See T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa.Super.2008) (remand required for trial court to issue ruling whether each document was privileged and if necessary, in camera examination); In re Estate of Wood, 818 A.2d 568, 573 (Pa.Super.2003) (Superior Court instructs trial judge to review material in camera to determine if work-product doctrine applies). This approach implicitly recognizes that such correspondence is not attorney work product per se. In its discussion, the majority properly qualifies its statements, such as, “to the extent that the correspondence between Appellants’ counsel and Dr. Green constitutes attorney work-product ..., we conclude that it is not discoverable ...,” Majority Opinion at 813, and “Insofar as the information sought is protected by the work-product doctrine....” Id.

I cannot reconcile these statements by the majority, however, with its simultaneous wholehearted approval of Appellants’ contention that “forcing disclosure of any communications between counsel and an expert witness ‘violates the work-product privilege contained in [Pa.R.C.P.] 4003.3.’ ” Majority Opinion at 811 (quoting Appellants’ substituted brief on en banc reargument at 10-11) (emphasis added). The majority’s premise is refuted by Rule 4003.3’s general proviso that “a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative!.]” Presumably, that would include correspondence. Only the disclosure of mental impressions of the attorney “or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories!,]” is precluded. See Pa.R.C.P. 4003.3. Conspicuously absent is any blanket prohibition against the disclosure of an attorney’s correspondence generally, or communication with an expert specifically. Such correspondence, to the extent it contains the mental impressions and conclusions of the attorney, may be determined to be protected work product following an in camera examination. However, Rule 4003.3 clearly does not insulate all attorney communications from discovery.

Using the attorney work-product doctrine to protect the expert’s correspondence to the attorney is even more problematic. In reaching its result, the majority implicitly concludes that the expert is a party representative so that his correspondence presumptively falls within the penumbra of Rule 4003.3. However, that rule limits representatives to a party’s “attorney, consultant, surety, indemnitor, insurer or agent.” No mention is made of an expert witness as a representative of the party.14 The majority does not bridge this *817logical gap and offers no insight as to how or why it arrived at the conclusion that the expert’s correspondence is entitled to Rule 4003.3 protection.15

A review of the documents at issue in this case certainly reveals some attorney work product. However, the documents also contain facts that were provided by counsel to the expert and correspondence from the expert to the attorney, neither of which constitutes attorney work product. I believe that by conferring work-product protection upon all correspondence between the attorney and his expert, the majority has impermissibly expanded Rule 4003.3, with far-reaching implications.- It potentially infringes upon a party’s right to obtain additional expert discovery upon cause shown pursuant to Rule 4003.5(a)(2). The ramifications also extend to trial. Presently, an expert’s file becomes available for an opponent’s inspection and use at trial. If all communications between the expert and the attorney constitute work product, they will be protected through the course of the trial.

Our job in construing a rule of civil procedure is to “ascertain and effectuate the intention of the Supreme Court.” Pa.R.C.P. 127(a); Kurian v. Anisman, 851 A.2d 152 (Pa.Super.2004). When the rule is clear and unambiguous, “the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Pa.R.C.P. 127(b). Absent explicit guidance, we consider several factors in ascertaining the intent of our Supreme Court, among them the necessity for the rule, its history, and the mischief to be remedied. See Pa.R.C.P. 127(c).

I recognize the salutary purpose of the work-product doctrine, which is “to shield the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client’s case.” Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222 (Pa.Super.2003) (citations and quotation marks omitted); see also T.M. v. Elwyn, Inc., supra at 1062-63. However, while the goal is “to keep the files of counsel free from examination by the opponent,” it does so only insofar as the lawyer’s files do not include “written statements of witnesses, documents or property which belong to the client or third parties, or other matter which is not encompassed in the broad category of the ‘work product’ of the lawyer.” See Civil Procedural Rules Committee Explanatory Comment to Rule 4003.3 (1978). Rule 4003.3 “immunizes the lawyer’s mental impressions, conclusions, opinions, memoran-da, notes, summaries, legal research and legal theories, nothing more[,]” id., to enable attorneys to prepare their cases “without fear that their work product will be used against their clients.” Commonwealth v. Noll, 443 Pa.Super. 602, 662 A.2d 1123, 1126 (1995).

Although the purpose of the work-product doctrine is to provide an attorney with intellectual room to ruminate about his strategy and thoughts on his client’s ease, we must be mindful of the equally important goal of advancing the truth-seeking process during the course of litigation. Prior to the adoption of our current discov*818ery rules in 1978, all information obtained by a party in anticipation of litigation or trial was protected from discovery under what was then Rule 4011(d). Civil Procedural Rules Committee Explanatory Comment to Rule 4003.3 (1978). Rule 4003.3 abolished most of that work-product/trial preparation protection in favor of broader discovery. “The purpose of the discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits.” Dominick v. Hanson, 753 A.2d 824, 826 (Pa.Super.2000) (citations omitted). The work-product doctrine is an exception to the general discovery rules, Gocial, supra, and the privilege embodied therein is not an absolute one. Id.; see also The Birth Center v. St. Paul Companies, Inc., 727 A.2d 1144, 1165 (Pa.Super.1999) overruled on other grounds Mishoe v. Erie Ins. Co., 573 Pa. 267, 824 A.2d 1153 (2003) (work product discoverable in situations where the legal opinion of an attorney becomes a relevant issue in an action).16

In holding that Rule 4003.3 work product provides blanket protection of all correspondence between the attorney and his expert on the facts herein, including all properly discoverable material included therein, the majority fails to serve both the letter and the spirit of that rule. Such an interpretation would seem to undermine our High Court’s intent to carefully circumscribe the protection afforded an attorney’s trial preparation in favor of broader discovery. Moreover, by treating an expert witness as a party representative for purposes of Rule 4003.3 work-product, the majority abandons any pretense of expert objectivity and independence.17

For the foregoing reasons, I agree that Rule 4003.5 precludes the discovery of correspondence and emails between attorney and expert via use of a subpoena in this case. I find no basis for holding sacrosanct all correspondence between expert and attorney as work-product protected under Rule 4003.3 and, from that portion of the majority holding, I respectfully dissent.

. While the majority characterizes the subpoena as seeking only a "[cjomplete copy of the entire medical chart/file regarding CARL J. BARRICK, DOB [...],” the subpoena clearly stated, "including but not limited to: office notes, doctor's records/reports/correspondence/notes/memoranda, ...” Subpoena, 6/2/09, at 1.

. Upon cause shown, a party may be permitted to engage in supplemental discovery related to potential bias or favoritism of a non-party expert witness retained for trial where there is a reasonable basis "to believe that the witness may have entered the professional witness category.” Cooper v. Schoffstall, 588 Pa. 505, 905 A.2d 482, 494-495 (2006).

. Under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters. See Atcovitz v. Gulph Mills *817Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1223 (2002). Pursuant to this doctrine, the absence of any reference to an expert witness as a party representative would imply that the expert was excluded from that category and, hence, from the protection of the work-product doctrine.

. Sodexho also contended that in disclosing attorney work-product protected information to his expert, a non-representative, Appellants waived any work-product privilege. Appellants cite no Pennsylvania authority to this effect, and I am unaware of any.

. Whether work-product protection should yield to discovery pursuant to Pa.R.C.P. 4003.5(a)(2), where the attorney’s work product serves as the basis of an expert's opinion, is an issue which has not yet been addressed by our appellate courts.

. Appellants point out, and I am mindful, that the Pennsylvania Supreme Court’s Civil Procedural Rules Committee has proposed a change to Pa.R.C.P. 4003.5, which would make all communications between a party’s attorney and testifying expert non-discoverable, regardless of the form of the communications. Such an amendment could be perceived as largely redundant if Rule 4003.3 already provides such protection from discovery as the majority now holds.