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December 18th, 2024
In the case of McKeehan v The Milton S. Hershey Medical Center, 2024 PA Super 290 (Dec. 6, 2024), the Pennsylvania Superior Court reversed a trial court’s decision that compelled the Plaintiffs to disclose notes, recordings, photos, and videos of meetings attended by Plaintiffs and their experts to the Defendants.
The Plaintiffs, David McKeehan and Mary McKeehan alleged that healthcare providers at The Milton S. Hershey Medical Center negligently monitored Mr. McKeehan while providing anesthesia during surgery. More specifically, the Plaintiffs alleged that the hospital’s agents failed to monitor and maintain Mr. McKeehan’s blood pressure and related levels during surgery, causing post-operative vision loss, which has led to permanent blindness.
The plaintiffs disclosed the report of their expert, Mary Ann Miknevich, MD, and a life care plan authored by Alex Karras in support of their claim. In both expert reports, there were numerous references to conferences and meetings that occurred between Dr. Miknevich and Mr. Karras, as well as a conference between Mr. Karras and Christian Kcomt, M.D., who provided psychiatric care to Mr. McKeehan. There was also a conference involving the Plaintiffs, Dr. Miknevich and Mr. Karras. Some of these conferences also included Plaintiffs’ counsel, but many did not. The Defendants sought any and all notes, recordings, photos, or videos that were taken during these conferences. The Plaintiffs objected on the basis of attorney-client privilege and/or the work product doctrine. The Defendants filed a motion to compel this discovery. The trial court ultimately issued an order granting the Defendants’ motion to compel and ordering the production of any and all transcripts, notes, recordings, photos, videos, and/or other information prepared and/or received by Mr. Karras and/or Dr. Miknevich during the conferences and interviews referenced in their reports.
The plaintiffs appealed the trial court’s decision to the Superior Court. In its 1925(a) opinion, the trial court maintained its belief that the compelled disclosures fell within the scope of Pennsylvania Rules of Civil Procedure Rule 4003.5. The Superior Court first determined that the trial court’s non-final discovery order was subject to appellate review pursuant to the collateral order doctrine since a “colorable claim” of privilege was raised. See Saint Luke’s Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540 (Pa. Super. 2014).
In support of their position, the Defendants cited Farda v. Chelsea Prop. Group. Inc., 81 Pa. D&C 4th 108 (C.P. Philadelphia 2006) for the proposition that “[a]n expert’s report must provide the opposing party with sufficient information to avoid surprise at trial and permit appropriate pretrial preparation, including the filing of warranted pretrial motions.” In Farda, a court of common pleas decision involving property appraisal, the expert report was found to be insufficient under Rule 4003.5(a)(1)(b) because it failed to fully identify the factual basis on which the opinion had been rendered. See id. at *1. More specifically, the court in Farda found that the expert’s opinion was based on conversations, the content of which was not disclosed in the report. Accordingly, the court concluded the expert report failed to describe all material considered and, therefore, failed to identify the substance of the facts to which the expert was expected to testify and failed to provide the basis for the opinions expressed. See id. at 1.
In this case, the Superior Court determined the Plaintiffs’ experts’ reports fully described all material the experts considered in formulating their opinions. Specifically, Dr. Miknevich’s expert report identified the records she considered and included a 10-page summary of the relevant medical history. Dr. Miknevich also specifically described the content of the interviews and evaluations of Mr. McKeehan, the dates the interviews and evaluations occurred, and who was present. Moreover, the Court found the Life Care Plan prepared by Mr. Karras was extensive, spanning 54 pages. Like Dr. Miknevich, Mr. Karras noted that he conducted an in-person interview and teleconference with Mr. McKeehan on two separate occasions, and he summarized the relevant information gleaned during those encounters. In the Court’s opinion, Mr. Karras thoroughly summarized his review of Mr. McKeehan’s relevant medical history, and he also noted that he conducted multiple conferences with Dr. Miknevich regarding her evaluations of Mr. McKeehan and her resulting expert report. Finally, Mr. Karras provided a life expectancy chart, followed by a projected life care plan, including costs.
Ultimately, the Court found that the Plaintiffs’ experts’ extensive summaries of the interviews in question left nothing to the imagination that would “unfairly surprise” the defense. Therefore, the Court concluded that the Plaintiffs’ expert reports provided “the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Pa.R.C.P. 4003.5(a)(1)(B).
The Defendants also asserted, “a defendant may challenge pretrial whether the expert has truly applied expertise to an issue or is merely parroting the opinions of others.” Primavera v. Celotex Corp., 608 A.2d 515 (Pa. Super. 1992), for the proposition that an expert “should not be permitted simply to repeat another’s opinion or data without bringing to bear on it his own expertise and judgment.” According to the Court, the basis for the proposition is that a non-testifying witness will not be on the witness stand and will not be available for cross-examination. See id. However, in this case, the Court concluded there were no opinions of third parties who are not subject to cross-examination that were relied upon by Plaintiffs’ experts. Accordingly, the Court held the trial court’s order exceeded the scope of the expert witness discovery.
Finally, the Court emphasized that compliance with Pa.R.C.P. 4003.5(a)(1)(B) requires only that a party submit a summary report of his expert’s testimony. The Court noted that if the recipients of discovery believe their opponent has not sufficiently complied, they may seek additional discovery from the court “[u]pon cause shown.” Pa.R.C.P. 4003.5(a)(2); see Cooper v. Schoffstall, 905 A.2d 482. Moreover, the 2014 comment to Pa.R.C.P. 4003.5 discusses the production of a supplemental report if additional discovery is found necessary upon cause shown.
The opinion in the case of McKeehan v The Milton S. Hershey Medical Center, 2024 PA Super 290 (Dec. 6, 2024) can be accessed here.
