Barrick and Forth: The Pennsylvania Superior Court Reverses Course and Finds that Attorney/Expert Communications are Immune From Discovery

Author: Marc L. Penchansky

On November 23, 2011, the Superior Court sitting en banc issued its opinion in Barrick v. Holy Spirit Hospital, 2011 Pa. Super. 251 (2011). The full Court disagreed with a previous panel’s opinion and held that that communications between an expert and a party’s attorney were not discoverable.

By way of background, John Barrick was injured while in the cafeteria at Holy Spirit Hospital. Mr. Barrick sought treatment for his injuries from an orthopedic surgeon. That surgeon was later retained by Mr. Barrick as an expert witness in his suit against the Hospital. The Hospital issued a rather innocuous-sounding subpoena requesting Mr. Barrick’s complete file and medical records from the orthopedic surgeon. The orthopedic surgeon agreed to provide the medical records but did not provide the records that pertain to Mr. Barrick but were not created for the purpose of treatment.
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