Did you think your discussions of trial strategy with your expert witness were privileged, work product, or otherwise protected from disclosure to the opposing party? Think again, says the Pennsylvania Superior Court. In the case of Barrick v. Holy Spirit Hospital, the Superior Court ordered a plaintiff's attorney and his expert witness to disclose their communications regarding trial strategy to the defense. In affirming the trial court's order that initially compelled the disclosure, Judge Judith F. Olson wrote that:
"we are compelled to find that if an expert witness is being called to advance a party's case-in-chief, the expert's opinion and testimony may be impacted by correspondence and communications with the party's counsel; therefore, the attorney's work-product doctrine must yield to discovery of those communications."
What is the rule on this issue in your state? Has the Pennsylvania Superior Court made a reasonable ruling, or will this create chaos in pending cases that may be affected by the ruling? Should a lawyer be able to discuss the case freely with his or her expert witness, or must lawyers now be more cautious in what they divulge to their own experts? Post your thoughts on the ruling in the comments section below, or discuss the rule in your state in our Forum.
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