J-A07018-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TONIA VIRNELSON, INDIVIDUALLY 

AND AS ADMINISTRATRIX OF THE 

ESTATE OF JAMES K. VIRNELSON, 

DECEASED

v.

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., IPSINTEGRATED 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.,

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3430 EDA 2017

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 

AND AS ADMINISTRATRIX OF THE 

ESTATE OF JAMES K. VIRNELSON, 

DECEASED

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
J-A07018-19

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v.

IPS-INTEGRATED PROJECT 

SERVICES LLC., IPS-INTEGRATED 

PROJECT SERVICES CORP., IPSINTEGRATED 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.

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 No. 1253 EDA 2018

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 

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* Former Justice specially assigned to the Superior Court.

1 On 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

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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 IPSIntegrated 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 

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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 DonohueBabiak, 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 nontestifying 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.

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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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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 attorneyclient 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 workproduct 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 

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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.

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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