It has been less than one year since the Pennsylvania Supreme Court codified, via amendment of the civil practice rules, its holding in Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa.2014). In Barrick, an evenly divided court affirmed a ruling issued by an en banc panel of the Superior Court, and held that all communications between an attorney and his testifying expert were shielded from discovery by the attorney work-product doctrine.

Since Barrick (and the subsequent rule change), there has been considerable debate over whether the court got it right or wrong. On one hand, some practitioners lauded the decision and the new rule as bringing Pennsylvania in line with the federal rules pertaining to expert discovery. While others have denounced the same, calling it an open invite for unscrupulous opponents to mold, if not create, their own expert's opinions. But the reality is, while we will never stop an unethical practitioner from, well, practicing unethically, the new rules have begun to create a dangerously more relaxed and casual communication environment between attorney and expert, one that may blur the lines for even the most careful and ethical “Type A” attorneys, who may feel they have been given a license from the court to interject more of themselves (literally) into their expert's reports.

Prior to the new rules, parties routinely requested and received, in discovery, correspondence between a party's attorney and his or her testifying expert. In fact, every Pennsylvania attorney I know has, at one time or another, been cautioned by his or her mentor to “watch what you write to your expert, and what he writes to you,” as that note “will be discoverable.” While attorneys regularly consulted with their experts and discussed legal theories with them, the potential disclosure of embarrassing and likely prejudicial ghostwriting of expert reports kept many attorneys from crossing the line. Has the proverbial line now disappeared or been blurred since Barrick? Can an attorney now draft the report for his or her expert, so long as the expert's theories are incorporated therein?