Wendy Rothstein | Fox Rothschild LLP | April 22, 2015
Today the Pa Superior Court affirmed a decision and verdict of the Northampton County Court of Common Pleas. Not a big deal. However in the decision there is mention of the fact that an expert witness brought his file to the witness stand and opposing counsel asked to see the file. Again, not a big deal. However, the expert had communications between himself and counsel in the file. That is a big deal. The Pa Superior Court determined that the issue was waived below and on appeal so the Court did not address the substantive issue.
This case is an important reminder regarding expert witnesses. First, they should not be bringing their files up to the witness stand. Second, if they do it should only be because it is necessary for their testimony. If it is necessary then counsel should review that file beforehand and remove any documents subject to the attorney client and/or work product privilege. Even if you prevail on your objection to opposing counsel reviewing the file or you prevail in having documents removed, it is a bad situation. The Jury will not understand the legal objections and will think that you, your client and/or the expert are hiding something.