Sometimes a plaintiff’s lawyer’s entire liability case can be cemented in the Defendant’s investigator’s report and/or file. In almost all instances, a Defendant will resist production of a Defendant’s investigator’s report and/or file. Virnelson v. Johnson Matthey Inc. (JMI), et al., 2021 PA Super 20, is a case that involved a motion to compel an on-site investigation report of an industrial accident prepared by JMI’s consultant, Baker Engineering and Risk Consultants (BakerRisk).
On July 17, 2015, James Virnelson fell to his death while working as an employee of JMI’s pharmaceutical plant in Conshohocken, Pa. While inspecting an industrial-grade pressure filter dryer, Virnelson was allegedly exposed to excessive levels of nitrogen, causing him to lose consciousness and fall ten feet onto a concrete floor.
Within five days of Virnelson’s death, on July 22, 2015, the Defendants retained the services of BakerRisk, an independent consulting firm, to conduct a site safety investigation and determine the cause of Virnelson’s fatal accident. Sometime prior to Aug. 3, 2015, the BakerRisk team began its investigation, which included witnesses and employee interviews. BakerRisk assigned its employee, Michael Broadribb, to handle the matter. Following his investigation, Broadribb prepared a report (the Broadribb Report). Portions of the BroadribbReport were released to Occupational Safety and Health Administration (OSHA) investigators.
On Aug. 3, 2015, counsel for James Virnelson’s wife, Tonia Virnelson (Plaintiff), sent a letter to the Defendants informing them they had retained his firm for representation. Tonia filed suit on Nov. 11, 2015 alleging, inter alia, that the Defendants’ inadequate safety practices at the plant caused James Virnelson’s death, and that the pressure filter dryer was defectively designed and/or installed.
During the litigation, Plaintiff became aware of the Broadribb Report and requested a copy from the Defendants. The Defendants claimed the report was prepared in anticipation of litigation; therefore, it was protected from discovery as a non-testifying expert consultant’s report pursuant to Pennsylvania Rules of Civil Procedure 4003.3 and 4003.5(a). The Defendants further argued the Plaintiff did not raise the existence of any “exceptional circumstance” entitling her to the report. Plaintiff argued the Defendants did not retain BakerRisk in anticipation of litigation. Plaintiff asserted the Defendants, and not their attorneys, retained BakerRisk to prepare the report and produce it to OSHA in an attempt to negotiate a reduced penalty from OSHA. After argument, the trial court ordered production of the report. Thereafter, the Defendants appealed to the Pennsylvania Superior Court.
The Pennsylvania Superior Court reviewed Pa.R.C.P 4003.1, which provides:
[A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party[.]”). Pa.R.C.P. 4003.1.
Additionally, the Court discussed Rule 4003.3, which provides, in pertinent part:
[A] party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including by his or her attorney, consultant, surety, indemnitor, insurer or agent.
Pa.R.C.P. 4003.3. Finally, the Court reviewed Pa.R.C.P 4003.5(a)(3), which provides in pertinent part:
[A] party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, … except on order of court as to any other expert upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means[.]
Pa.R.C.P. 4003.5(a)(3). See Cooper v. Schoffstall, 905 A.2d 482, 492 (Pa. 2006) (“Rule 4003.5 should be read to restrict the scope of all discovery from non-party witnesses retained as experts in trial preparation.”).
Ultimately, the Superior Court agreed with the trial court and determined the testimony and documentary evidence pertaining to the retention of BakerRisk supported the trial court’s finding that BakerRisk was not retained or specifically employed in anticipation of litigation. Rather, the evidence supported the conclusion that BakerRisk was retained for a business purpose, to investigate the “root causes” of the accident and enable the company to implement operational changes to prevent such accidents in the future. Importantly, the Court held the fact that litigation was foreseen, in itself, does not preclude discovery of the Broadribb Report pursuant to Pa.R.C.P. 4003.5(a)(3).