Lloyd v. Lloyd - Pa. Superior Court - December 20, 2005http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf
Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.
Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."
The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."
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