J-A07018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 TONIA VIRNELSON, INDIVIDUALLY          :   IN THE SUPERIOR COURT OF
 AND AS ADMINISTRATRIX OF THE           :        PENNSYLVANIA
 ESTATE OF JAMES K. VIRNELSON,          :
 DECEASED                               :
                                        :
                                        :
              v.                        :
                                        :
                                        :   No. 3430 EDA 2017
 JOHNSON MATTHEY, INC., JOHNSON         :
 MATTHEY PHARMACEUTICAL                 :
 VENTURES, JOHNSON MATTHEY              :
 PHARMACEUTICAL MATERIALS, INC.,        :
 JOHNSON MATTHEY PROCESS                :
 TECHNOLOGIES, INC., 3V, INC., 3V       :
 TECH S.P.A., 3V TECH USA,              :
 LANMARK ELECTRIC, INC., IPS-           :
 INTEGRATED PROJECT SERVICES,           :
 LLC IPS-INTEGRATED PROJECT             :
 SERVICES, CORP., IPS-INTEGRATED        :
 PROJECT SERVICES, INC., D/B/A IPS      :
 INTEGRATED PROJECT SERVICES,           :
 LLC., UNITED INSPECTION AGENCY,        :
 INC., MCFLUSION, INC., AND             :
 MCFLUSION CORP.                        :
                                        :
                                        :
 APPEAL OF: JOHNSON MATTHEY,            :
 INC., JOHNSON MATTHEY                  :
 PHARMACEUTICAL VENTURES,               :
 JOHNSON MATTHEY                        :
 PHARMACEUTICAL MATERIALS, INC.,        :

                Appeal from the Order September 28, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): No. 01608

 TONIA VIRNELSON, INDIVIDUALLY          :   IN THE SUPERIOR COURT OF
 AND AS ADMINISTRATRIX OF THE           :        PENNSYLVANIA
 ESTATE OF JAMES K. VIRNELSON,          :
 DECEASED                               :
                                        :
                                        :
J-A07018-19


                v.                               :
                                                 :
                                                 :   No. 1253 EDA 2018
    IPS-INTEGRATED PROJECT                       :
    SERVICES LLC., IPS-INTEGRATED                :
    PROJECT SERVICES CORP., IPS-                 :
    INTEGRATED PROJECT SERVICES                  :
    INC., D/B/A IPS INTEGRATED                   :
    PROJECT SERVICES LLC., HAZTEK                :
    INC., A & B PROCESS SYSTEMS,                 :
    CORP. AND COVEX, LLC.                        :
                                                 :
                                                 :
    APPEAL OF: JOHNSON MATTHEY                   :
    INC., JOHNSON MATTHEY                        :
    PHARMACEUTICAL VENTURES,                     :
    JOHNSON MATTHEY                              :
    PHARMACEUTICAL MATERIALS INC.

                Appeal from the Order Entered April 12, 2018
     In the Court of Common Pleas of Philadelphia County Civil Division at
                   No(s): November Tem, 2015 No. 01608


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                    FILED JULY 25, 2019

       In these consolidated appeals, Johnson Matthey, Inc., Johnson Matthey

Pharmaceutical Ventures, and Johnson Matthey Pharmaceutical Materials, Inc.

(collectively, “Appellants”), appeal from the September 28, 2017 Order

entered in the Philadelphia County Court of Common Pleas granting Appellee

Tonia Virnelson’s Motion to Compel the production of, inter alia, an expert’s

report.1 Appellants also appeal from the April 12, 2018 Order granting in part
____________________________________________


*  Former Justice specially assigned to the Superior Court.
1On October 22, 2018, Appellee Virnelson filed an Application to Withdraw
her Brief in which she represented to this Court that she and Appellants had



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and denying in part their Motion for a Protective Order. After careful review,

we vacate the trial court’s September 28, 2017 and April 12, 2018 Orders,

and remand for further proceedings.2

       This case arises from the July 17, 2015 death of James Virnelson.

Virnelson was exposed to excessive levels of nitrogen causing him to lose

consciousness and fall to his death while working on an industrial-grade

pressure filter dryer at a pharmaceutical plant owned by Appellants.

       Within five days of Virnelson’s death, on July 22, 2015, Appellants

retained    the    services    of   Baker      Engineering   and   Risk   Consultants

(“BakerRisk”), an independent consulting firm, to conduct a site safety

investigation and determine the cause of Virnelson’s fatal accident. BakerRisk


____________________________________________


reached a settlement agreement. See Application, 10/22/18, at ¶ 3. By Order
dated March 8, 2019, this Court denied Appellee Virnelson’s Motion.

       By Orders dated March 8, 2019, this Court also granted the Applications
filed by Appellees, 3V, Inc. and 3V Tech S.p.A., and Appellees, IPS-Integrated
Project Service, LLC, IPS-Integrated Project Services, Corp., and IPS-
Integrated Project Services, Inc. d/b/a IPS-Integrated Project Services, LLC
to amend their Appellate Briefs to adopt and incorporate by reference the Brief
and arguments made by Appellee Virnelson.

2 Because these Orders pertain to the discovery of privileged materials, they
are appealable collateral orders. See Pa.R.A.P. 313 (“An appeal may be taken
as of right from a collateral order[.] . . . A collateral order is an order separable
from and collateral to the main cause of action where the right involves is too
important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.”); Dodson v. DeLeo, 872 A.2d 1237, 1240 (Pa. Super. 2005)
(“This court has previously relied on the collateral order doctrine to exercise
review of discovery orders involving privileged material.”).


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assigned its employee, Michael Broadribb (“Broadribb”), to handle the matter.

Following his investigation, Broadribb prepared a report (the “Broadribb

Report”).

       Two and a half weeks after Virnelson’s death, on August 3, 2015,

counsel for Appellee sent a letter to Appellants informing them that Appellee

had retained his firm to represent them. On November 11, 2015, Appellee

filed a Complaint initiating this case, alleging that Appellants’ inadequate

safety practices at the plant caused Virnelson’s death, and that the pressure

filter dryer was defectively designed and/or installed.

       During the course of discovery in this matter, Appellee became aware

of the existence of the Broadribb Report. On June 30, 2017, Appellee filed a

Motion to Compel Appellants to produce the Broadribb Report. The trial court

scheduled a hearing on the Motion for August 23, 2017.

       On August 23, 2017, the Honorable John M. Younge held a hearing on

the Motion to Compel, at which counsel for the parties presented argument.

No witnesses testified at the hearing and the parties did not move for the

admission of any documentary evidence.3 Appellants argued that the court


____________________________________________


3 Pursuant to local rule, Appellants handed up to the court a written Response
in Opposition to the Motion to Compel. Over Appellee’s objection, the trial
court subsequently entered Appellants’ Response with attached exhibits and
their Supplemental Brief into the record. See Docket Entry, 10/18/17.
Attached as exhibits to the Response were the affidavit of Amy Donohue-
Babiak, Esquire, Appellants’ in-house counsel and the August 3, 2015 letter
from Appellee’s counsel advising Appellants’ that Appellee had retained



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should not compel production of the Broadribb Report because, inter alia,

Appellants retained BakerRisk and Broadribb in anticipation of litigation, and,

therefore, the Broadribb Report “absolutely falls under the consulting expert

privilege.”4   N.T., 8/23/17, at 18-19; see also [Appellants’] Response in

Opposition to [Appellee’s] Motion to Compel Broadribb Report, 10/19/17, at

4-5. In particular, Appellants argued that Broadribb and BakerRisk were non-

testifying expert consultants retained in anticipation of litigation, and that

Appellee did not raise the existence of any “exceptional circumstance” entitling

her to the Broadribb Report. N.T., 8/23/17, at 19; see also Pa.R.C.P. 4003.5.

        Appellee argued in opposition that the Broadribb Report did not

constitute a privileged consulting expert report because Appellants, and not

their attorneys, had hired BakerRisk.          Appellee, thus, concluded, that the

Broadribb Report could not have been prepared in anticipation of litigation.

N.T., 8/23/17, at 21.         In further support of this theory, Appellee cited

references     in   a   post-accident    investigation   report   produced   by   the

Occupational Safety and Health Administration (“OSHA”) to Appellants having

hired BakerRisk to conduct an independent evaluation of the accident. N.T.,

8/23/17, at 15-16, 21. Appellee inferred from this reference that Appellants

retained BakerRisk so they could negotiate a lower penalty from OSHA, and

not in preparation for litigation. Id. at 13, 21.
____________________________________________


counsel, requesting the preservation of evidence, and indicating that he would
like to inspect the accident site.
4   Pa.R.C.P. 4003.5(a)(3).

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J-A07018-19



      At the conclusion of the hearing, Judge Younge granted Appellants

permission to submit a supplemental brief in support of its arguments, but

advised Appellee not to do so, and to “quit[] while you[’re] ahead.” Id. at 27-

28. Appellants filed the supplemental brief, annexing various documents.

      On September 28, 2017, the Honorable John M. Younge granted

Appellee’s Motion to Compel and ordered Appellants to produce the Broadribb

Report. Appellants filed a timely appeal to this Court.

      Subsequently, on January 9, 2018, Appellants filed a Motion for

Protective Order seeking to preclude, inter alia, discovery by Appellee of

information concerning Broadribb’s investigation—including the contents of

draft reports prepared by Broadribb, the conclusions reached by Broadribb,

and the “participation of or provision of information” by Appellants’ current or

former employees in discovery concerning Broadribb’s investigation.        See

Proposed Order annexed to Motion for Protective Order, 1/9/18. Appellants

also sought an Order staying its compliance with the September 28, 2017

Order pending appeal, pursuant to Pa.R.A.P. 1701.

      The trial court held a hearing on Appellants’ Motion on February 21,

2018. At the hearing, Appellants’ counsel argued that, pursuant to Pa.R.C.P.

4003.5,   the   facts   and   statements   communicated    to   the   BakerRisk

investigators by Appellants’ current and former employees during Broadribb’s

investigation, as well as any knowledge those employees have of the facts

held or findings of Broadribb, were precluded from discovery. N.T., 2/21/18,

at 11, 14-15.

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      Appellee’s counsel disputed the applicability of Rule 4003.5, and instead

suggested that the arguably operable rule is Rule 4003.3, which covers work

product. Id. at 16. He argued that Appellee should be able to ask Appellants’

employees facts or request documents from Appellants’ employees such as:

      “Were you interviewed by [Broadribb]? When did the interview
      occur? Who else was there for the interview? What is your
      understanding of why you were being interviewed? How long did
      the interview last? Were there multiple interviews? Did you
      provide them? Did you provide them with documents for the
      interview? If so, where did you get the documents? Anything
      about the witness’ role in the interview.

      Frankly, did you see the report from [Broadribb]? What facts or
      information did you learn from the report? Did that impact your
      working at the plant in a safe fashion?

Id. at 20-21. Appellee conceded that the court should not permit him to ask

witnesses about any opinions they read in the Broadribb Report. Id. at 21.

      On April 12, 2018, the Honorable Lisa M. Rau granted in part and denied

in part Appellants’ Motion for a Protective Order. In sum, Judge Rau’s Order

compelled “individuals who were questioned in the BakerRisk investigation” to

answer questions about: (1) any communications they had had with BakerRisk

investigators   and   the   contents    of   those   communications,    except

communications concerning the value or merit of legal claims, defenses,

strategy, or tactics; (2) the extent of their participation in the BakerRisk

investigation; (3) any information they learned about why BakerRisk was

conducting an investigation; (4) any and all people who had seen any copies

of the Broadribb Report, including drafts; and (5) whether and how they had




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been shown or otherwise reviewed the Broadribb Report. Order, 4/12/18, at

1.

        However, Judge Rau’s April 12, 2018 Order protected the same people

from answering questions concerning: (1) the contents of the Broadribb

Report or any drafts of it; (2) any expert opinions that had been

communicated to BakerRisk investgators; (3) any opinions or conclusions of

BakerRisk investigators about the value or merit of legal claims, defenses,

strategy, or tactics; and (4) any communications between Appellants’

employees and legal counsel within the scope of counsel’s representation. Id.

at 2.

        This timely appeal followed.

        With respect to the appeal from Judge Younge’s September 28, 2017

Order, Appellants’ raise the following five issues, which we have reordered for

ease of disposition:

        1. Whether Judge Younge erred by granting [Appellee’s] Motion
           to Compel, as the consulting expert’s report and its drafts are
           protected pursuant to Pa.R.C.P. 4003.5(a)(3) since the
           consultant was retained in anticipation of litigation and
           [Appellants do] not presently intend to call him as a witness at
           trial, and the report is otherwise protected under the attorney-
           client and work-product privileges?

        2. Whether Judge Younge erred in determining that BakerRisk
           was not specially retained by [Appellants] in anticipation of
           litigation or preparation for trial within the meaning of Rule
           4003.5(a)(3)?

        3. Whether     Rule   4003.5(a)(3)    precludes    discovery  of
           [Appellants’] consulting expert as [Appellee] never argued or
           proved “exceptional circumstances” whereby [Appellee] cannot
           discover the relevant facts by any other means, and there is

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         no evidence to support a belief that the consulting expert is the
         only source or that the information cannot be derived from the
         documents produced by [Appellants] and others, or through
         other discovery?

      4. Whether [Appellants] waived the attorney-client        or work-
         product privileges by virtue of a brief comment        to OSHA
         investigators or otherwise, as Pennsylvania does not   recognize
         subject matter waiver and there was no waiver          on other
         grounds?

      5. Whether Judge Younge erred by granting [Appellee’s] Motion
         to Compel the consulting expert’s report which was based upon
         [Appellee’s] counsel’s improper and unethical use of
         information from [Appellants’] inadvertently disclosed and
         privileged Case Evaluation Report, which is [Appellee’s] only
         possible source for knowledge of the consultant’s report, and
         which is subject to a protective order in this case?

Appellants’ Brief at 11-12.

      With respect to the appeal from Judge Rau’s April 12, 2018 Order,

Appellants’ raise the following two issues:

      1. Whether Judge Rau erred by compelling [Appellants’]
         deponents to answer questions concerning all information
         provided to [Appellants’] consulting expert, which is not merely
         factual information known by the deponent but equivalent to
         the consultant’s strategy, analysis[,] and “facts known and
         opinions held,” thus protected from discovery by Rule
         4003.5[(a)(3)] and the attorney-client and work-product
         privileges, and as these witnesses can and have been deposed
         as to any and all facts that they know?

      2. Whether Judge Rau’s Order is supported by her [O]pinion[,]
         which inaccurately and improperly suggests that [Appellants
         are] trying to insulate facts known by witnesses, but where the
         Order compels witnesses to provide facts and answer questions
         about what they communicated to BakerRisk?

Appellants’ Brief at 12-13 (emphasis in original).

September 28, 2017 Order of Judge Younge



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      Each of Appellants’ first three issues challenge Judge Younge’s rejection

of their claim that, pursuant to Pa.R.C.P. 4003.5, the Broadribb Report is

privileged because it contains the “facts known or opinions held” of Appellants’

non-testifying expert witness who Appellants’ retained in anticipation of

litigation. We, therefore, address these issues together.

      Our standard of review in addressing the propriety of a discovery order

is whether the trial court committed an abuse of discretion.             Gallo v.

Conemaugh Health Sys., Inc., 114 A.3d 855, 860 (Pa. Super. 2015).

However, whether a privilege protects a communication from disclosure is a

question of law. Saint Luke’s Hosp. of Bethlehem v. Vivian, 99 A.3d 534,

540 (Pa. Super. 2014). “Our standard of review over questions of law is de

novo and to the extent necessary, the scope of our review is plenary as [the

appellate] court may review the entire record in making its decision. With

respect to factual conclusions, we may reverse the trial court only if its findings

of fact are predicated on an error of law or are unsupported by competent

evidence in the record.” Mastroni–Mucker v. Allstate Ins. Co., 976 A.2d

510, 517–18 (Pa. Super. 2009) (citations omitted).         “The party invoking a

privilege must initially set forth facts showing that the privilege has been

properly invoked[.]”    Red Vision Sys., Inc. v. Nat’l Real Estate Info.

Servs., L.P., 108 A.3d 54, 62 (Pa. Super. 2015) (citation omitted). “Once

the invoking party has made the appropriate proffer, then the burden shifts

to the party seeking disclosure to set forth facts showing that disclosure should

be compelled either because the privilege has been waived or because an

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exception to the privilege applies.” Yocabet v. UPMC Presbyterian, 119

A.3d 1012, 1019 (Pa. Super. 2015) (citing Red Vision, supra).

       Pa.R.C.P. 4003.5(a)(3) provides, in relevant part, that 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[.]”   Pa.R.C.P. 4003.5(a)(3).            “[N]o discovery of such a witness is

permitted . . . unless there is an order of court. To obtain this order of court,

the inquirer must prove ‘exceptional circumstances’ under which there is no

practical way to find the facts or opinions by some other means.”              Id.,

Explanatory Cmt. 1978 (emphasis in original).

       The disposition of these issues is dependent on Judge Younge’s factual

determination that Appellants did not retain BakerRisk and Broardribb as a

non-testifying expert witness in anticipation of litigation. As noted above,

Judge Younge held a hearing on Appellee’s Motion to Compel Production of the

Broadribb Report. However, the notes of testimony from the August 23, 2017

hearing reflect that, although Judge Younge heard the parties’ argument as to

whether Appellants had retained BakerRisk in anticipation of litigation or for

some other purpose, the parties did not present the testimony of any

witnesses or any other evidence to support their respective arguments.5

____________________________________________


5 Our review of the record indicates that only Appellants submitted evidence
in support of their argument against production of the Broadribb Report. In



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Judge Younge, therefore, decided this question of fact, i.e. that Appellants did

not retain BakerRisk’s services in anticipation of litigation, without the benefit

of a factual record. Trial Ct. Op., 4/2/18, at 3.6

       Given that the trial court did not develop a factual record on this

threshold issue, we are unable to determine whether Judge Younge’s

conclusion as to the nature of the relationship between Appellants and

BakerRisk is “predicated on an error of law or [is] unsupported by competent

evidence in the record.”           See Mastroni–Mucker, 976 A.2d at 518.

Accordingly, we are constrained to vacate Judge Younge’s September 28,

2017 Order compelling production of the Broadribb Report, and remand for a

hearing to develop a factual record.

       In light of this disposition, and the interrelatedness of Judge Younge’s

September 28, 2017 Order and Judge Rau’s April 12, 2018 Order, we likewise

vacate the latter Order.

____________________________________________


particular, Appellants included an affidavit of their in-house counsel, Amy
Donohue-Babiak, Esquire, as an exhibit to their Response in Opposition to the
Motion to Compel, and Attorney Donohue-Babiak’s supplemental affidavit as
an exhibit to their Supplemental Brief filed after the August 23, 2017 hearing.
Appellants also included Appellee’s counsel’s August 3, 2015 letter and email
correspondence between Attorney Donohue-Babiak and Appellee’s counsel as
exhibits to the Supplemental Brief. Judge Younge did not acknowledge in his
Rule 1925(a) Opinion that he considered this evidence when granting
Appellee’s Motion.

6 Similarly, our review of the record confirms that Judge Younge reached the
factual conclusion that “exceptional circumstance[s] exist in this instance that
require production” without developing a factual record. Trial Ct. Op., 4/2/18,
at 3.


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     Orders vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/19




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