McKeehan v. Milton S. Hershey Med. Ctr., 2024 Pa. Super. LEXIS 529 (Pa. Superior Ct., December 6, 2024)(Panella, J. and Stevens, J.)
OPINION BY PANELLA, P.J.E.
Appellants, David McKeehan (“Mr. McKeehan”) and Mary McKeehan, appeal from the order entered in the Dauphin County Court of Common Pleas on October 18, 2023, granting the motion to compel filed by Appellees, Milton S. Hershey Medical Center, et al. Relevantly, the order compelled the disclosure of notes, recordings, photos, and videos of meetings attended by Appellants and their experts. After careful review, we reverse the order of the trial court and remand for proceedings consistent with this decision.
We have previously concluded a non-final discovery order can be subject to appellate review pursuant to the collateral order doctrine if a “colorable claim” of privilege is raised. See Saint Luke’s Hosp. of Bethlehem v. Vivian, 2014 PA Super 171, 99 A.3d 534, 540 (Pa. Super. 2014).
We are persuaded that the discovery order at issue, involving allegedly privileged information, is appealable as collateral to the principal action pursuant to Pa.R.A.P. 313.
We conclude there was no basis for any additional discovery. Accordingly, the trial court’s order exceeds the scope of the expert witness discovery permitted under our rules. Further, even if there were cause for further discovery, we can find no authority for the invasive disclosure compelled here, i.e. requiring the production of “all transcripts, notes, recordings, photos, videos, and/or other information prepared and/or received” by both experts during the conferences.
Our rules simply do not authorize the production of “all” notes and other information and materials prepared and/or received by an expert, even where there is a question about what that expert relied in preparing the report. Notably, there was no question here. Appellees have not alleged any of the underlying facts in the reports are inaccurate or that the experts’ opinions are not their own or are unsupported. Further, the trial court did not expressly find that cause existed for further discovery and in fact, never made a determination at all about the competency and completeness of the expert reports. The trial court should have evaluated the experts’ opinions as a function of Appellants’ compliance with their discovery obligations. In this regard, the court had less drastic remedies available to it to cure any deficiency in the expert report.
