I. GENERAL LITIGATION

In In Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, --- A.2d ----, 2010 WL 3584461 (Pa.Super., September 16, 2010), Appellants, Carl and Brenda Barrick appealed from an order directing the discovery and production of correspondence between counsel for Appellants and Dr. Thomas Green, Mr. Barrick's treating physician and designated expert witness at trial. The only issue for review was whether it was error for the lower court to order disclosures of letters and emails between Dr. Green and counsel for Appellants that addressed the strategy as to how to frame the physician's expert opinions where all of the treatment records of Mr. Barrick have been disclosed to Appellees. The question was one of first impression.

The court acknowledged that a conflict existed between two rules of civil procedure governing discovery, Rules 4003.3 and 4003.5. The former Rule prohibits discovery of the mental impressions of a party's representative, including an attorney, in preparation for litigation; where, the latter Rule requires disclosure of the substance of the facts and opinions underlying a testifying expert's conclusions, which ostensibly would include communications with an attorney.

The court provided “In reconciling this conflict, 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.”

The trial court examined two conflicting Common Pleas Court cases in rendering its decision to compel discovery of the correspondence between Dr. Green and Appellants' counsel: Shambach v. Fike, 82 Pa. D. & C. 4th 535 (Lackawanna County 2006) and Pavlak v. Dyer, 59 Pa. D. & C. 4th 353 (Pike County 2003).

In Shambach, Shambach instituted suit against his employer for alleged injuries caused when Fike struck him with a forklift. Shambach designated his treating physician as an expert for trial. His employer sought to depose the physician. The Shambach court determined that Rule 4003.5 requires that expert discovery other than written requests, i.e. oral discovery such as a deposition, requires cause shown; whereas, Rule. 4003.6 allows a party to depose a treating physician.

In Pavlak, plaintiff’s treating physician was also designated his expert at trial. Pavlak objected to a subpoena for correspondence between Pavlak's counsel and the expert. The Pavlak court determined that the defendant was entitled to discovery of written correspondence between plaintiff's counsel and the designated expert. However, the court concluded that the attorney work-product contained within said documents should be redacted. In the exercise of caution, the trial court further required plaintiff's counsel to submit the original correspondence for in camera review.

Here, the court agreed with the trial court’s determination that the case at hand was similar, if not identical, to the situation faced by the court in Pavlak. The court also agreed with the trial court that a “bright line” rule must be adopted. As such, the court concluded that attorney work-product must yield to the disclosure of the basis of a testifying expert's opinion.

Trial Lawyers Can Google Prospective Jurors During Voir Dire

In an unpublished opinion, Carino v. Muenzen, 2010 WL 3448071 (N.J.A.D. August 30, 2010), a medical malpractice case, the plaintiffs’ appealed the trial court’s ruling in favor of defendant. The appeal was based on the trial judge’s ruling that counsel could not make use of the internet during jury selection.

By way of background, the courthouse in which the trial was held provided wireless internet access. During the jury selection, plaintiff’s counsel began using a laptop computer to access the internet, intending to obtain information on prospective jurors. Defense counsel objected. The trial judge asked plaintiff’s counsel if he was Googling jurors’ names during the selection process. The plaintiff’s counsel responded, “Your Honor, there’s no code law that says I’m not allowed to do that. . . . I’m getting information on jurors — we’ve done it all the time, everyone does it. It’s not unusual. It’s not. There’s no rule, no case or any suggestion in any case that says.” The trial judge replied, “No, no, here is the rule. The rule is it’s my courtroom and I control it.” The judge then prohibited counsel from using the internet during jury selection.

On appeal, plaintiff argued that the trial judge abused his discretion during jury selection by precluding his attorney from accessing the internet to obtain information on prospective jurors. He further argued that the trial judge deprived him of “the opportunity to learn about potential jurors one of the most fundamental rights of litigation.”

The Court of Appeals held that trial lawyers can Google prospective jurors during voir dire, reversing the trial judge who ordered plaintiff’s counsel to disconnect from the court house wireless Internet. The court provided:

There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

II. INSURANCE COVERAGE