Harris v. Drake

• Decision Date: 18 March 2003
• Docket Number: No. 27402-7-II.,27402-7-II.
• Citation: 65 P.3d 350,116 Wash. App. 261,116 Wn. App. 261
• Court: Washington Court of Appeals
• Parties: Bradley R. HARRIS, Respondent/Cross Appellant, v. Doris and Dennis DRAKE, Appellants/Cross Respondents.

65 P.3d 350

116 Wn. App. 261

116 Wash. App. 261

Bradley R. HARRIS, Respondent/Cross Appellant, v. Doris and Dennis DRAKE, Appellants/Cross Respondents.

No. 27402-7-II.

Court of Appeals of Washington, Division 2.

March 18, 2003.

David Hadley Middleton, Federal Way, WA, Marilee C. Erickson, Reed McClure, Seattle, WA, for Appellants/Cross-Respondents.

Kari Ingrid Lester, Ben F. Barcus & Associates PLLC, Tacoma, WA, for Respondents/Cross-Appellants.

MORGAN, J.

The main question in this appeal is whether, in an action brought by a PIP (Personal Injury Protection) insured against a third-party tortfeasor, the work product privilege protects facts and opinions acquired, prepared, and developed by a PIP medical examiner whom the PIP insured does not expect to call at trial. In our opinion, the answer is yes.

On April 26, 1996, Bradley Harris was rear-ended by Doris Drake. He did not seek medical attention at the scene. That night, however, he began having "shooting pain deep in his left shoulder."¹

The next day, Harris went to a hospital emergency room. The staff determined that he did not have any broken bones and released him with medication for pain and inflammation.

For the next twenty months, Harris had problems with his left shoulder. He saw Dr. Grannis, a chiropractor; Dr. Finkleman, a family-practice physician; Dr. Hoffmeister, an orthopedic surgeon; Dr. Nacht, another orthopedic surgeon; and three different physical therapists. He did not improve significantly.

In September, 1997, Dr. Nacht diagnosed "anterior impingement syndrome" in the left shoulder. On October 30, 1997, Dr. Nacht performed arthroscopic surgery for that condition. By December 11, 1997, Harris was pain-free with full range of motion in his left shoulder. Harris had his last physical therapy treatment on December 15, 1997, and moved to Georgia in February, 1998.

Shortly after the accident, Harris filed a PIP claim with his own insurer, United Services Automobile Associates (USAA). His policy contained a cooperation clause that gave USAA the right to demand an independent medical examination. The record does not show whether the policy contained a PIP arbitration clause.

In the fall of 1996, USAA demanded an independent medical examination and retained Dr. Brandt Bede to perform it. Dr. Bede conducted the examination on November 26, 1996.

After examining Harris, Dr. Bede wrote two reports. In the first, dated the same day as the examination, Dr. Bede opined that Harris had an "impingement syndrome of the left shoulder related to the motor vehicular accident."² In the second report, dated February 19, 1998, Dr. Bede opined that Harris' "impingement syndrome is unrelated to the motor vehicular accident of April 26, 1996."³

Harris sued Drake on May 29, 1998. During discovery, Drake listed Dr. Bede as a medical expert whom she intended to call at trial. Harris did not object at that time.

On April 9, 2001, the day before trial started, Harris served on Drake a motion in limine in which he asked the court to exclude Dr. Bede's testimony. The parties argued the motion on April 10, the first morning of trial. Harris asserted that Dr. Bede's examination was privileged work product under Heidebrink v. Moriwaki;⁴ that Drake was required to proceed under CR 35 "rather than try to adopt a PIP exam";⁵ and that he, Harris, could not cross-examine Dr. Bede for bias in favor of the insurance industry without suggesting, contrary to the collateral source rule, that USAA had "already covered" his medical bills.⁶ Drake responded that Harris lacked standing to object on work product grounds; in the words of her attorney,

it's not necessarily Mr. Harris's objection to make.... [I]f the insurance company was a party to this litigation and was standing before you, they might have the ability to say, "Wait a minute. That's our consulting expert. You can't call him at trial." But they're not here.[⁷] Drake further responded that Harris' claim should fail on its merits in light of Johnson v. McCay;⁸ that CR 35 did not affect her ability to call Dr. Bede; and that Harris could "ask about bias without raising insurance."⁹ Harris replied that he had standing because he and USAA were "aligned."¹⁰

During the course of these arguments, the trial court wondered what USAA would do "if they knew their PIP expert was being used to defeat their [subrogation] claim for PIP benefits."¹¹ The trial court then asked counsel to call USAA and ascertain its position. A short time later, plaintiff's counsel reported that he, or possibly he and defense counsel together,¹² had called JoAnne Randolph, a "subrogation specialist" at USAA Randolph had stated that USAA "would not allow the calling of Dr. Bede," and that USAA "will not take a position adverse to their insured[.]"¹³ The trial court then granted Harris' motion to exclude Dr. Bede's testimony.

Drake immediately moved for a continuance. She argued that Harris had not brought his motion until "the day before trial";¹⁴ that the court's ruling "extend[ed] the law"¹⁵ and left her without medical testimony; and that she needed time to "get an expert to address the medical issues."¹⁶ The court denied a continuance.

At trial, Drake admitted liability. She wanted to present, but the trial court did not allow her to present, evidence that Harris had complained about pain to a chiropractor in February, 1995, fourteen months prior to the accident. At the end of the evidence, the trial court directed a verdict for Harris on causation and special damages, leaving general damages for the jury. The jury returned a verdict for Harris in the amount of $140,965, and the trial court later denied Harris' motion for prejudgment interest on his special damages.

Drake appeals, and Harris cross-appeals. The central issue is whether the trial court erred by excluding Dr. Bede's testimony. Additional issues are whether the trial court erred by denying Drake's motion for continuance; by not permitting Drake to prove that Harris had complained to a chiropractor in February, 1995; by granting a directed verdict on some issues; and by denying Harris' motion for prejudgment interest.

I.

The main issue on appeal is whether Dr. Bede's expert opinions, together with the factual bases for those opinions, were within the work product privilege. The goal of that privilege is "to protect the adversary process"¹⁷ by insuring that neither party pirates the trial preparation of another party.¹⁸

The work product privilege is described in CR 26(b)(4)¹⁹ and CR 26(b)(5).²⁰ These rules must be read together where, as here, "work product is claimed and discovery from an expert is sought."²¹ As noted by a concurring opinion in In re Firestorm 1991:

A number of courts have recognized the interplay between the work product provision of FED.R.CIV.P. 26(b)(3) and the provision governing discovery from experts involved in trial preparation, former FED. R.CIV.P. 26(b)(4). E.g., Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir.1984)

; Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D.Mich.1995); Dominguez v. Syntex Lab., Inc., 149 F.R.D. 158[ ] (S.D.Ind.1993); North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 108 F.R.D. 283 (M.D.N.C.1985). The court in Bogosian explained:

The first paragraph of Rule 26(b)(3)[²²] consists of two sentences .... the first sentence requires a showing of "substantial need" before work product must be produced. The second sentence requires protection against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party. The proviso introduces the first sentence of Rule 26(b)(3) ("Subject to the provisions of subdivision (b)(4)[²³] of this rule, a party may obtain discovery of documents... prepared in anticipation of litigation or for trial ...") and signifies that trial preparation material prepared by an expert is also subject to discovery, but only under the special requirements pertaining to expert discovery set forth in Rule 26(b)(4)....[²⁴]

Although CR 26(b)(4) and CR 26(b)(5) are closely related, CR 26(b)(5) controls in the event of a conflict. CR 26(b)(5) provides that when a party retains an expert who acquires or develops facts and opinions in anticipation of litigation, and the party does not expect to call that expert at trial, another party may obtain discovery "only as provided in rule 35(b) or 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."²⁵ CR 26(b)(4) provides, "subject to the provisions of subsection (b)(5)," that when a party or its representative prepares a document or tangible thing in anticipation of litigation, another party may obtain discovery "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he [or she] is unable without undue hardship to obtain the substantial equivalent of the materials by other means."²⁶ Neither rule protects information not acquired, prepared, or developed in anticipation of litigation, or information acquired, prepared, or developed by an expert expected to be called at trial by the party who retained him or her.

To apply these rules here, it is necessary to distinguish PIP arbitration or PIP litigation²⁷ between USAA and Harris from tort litigation between Harris and Drake. Then, it is necessary to address three major questions: (A) Did the work product privilege attach in anticipation of PIP litigation or PIP arbitration between USAA and Harris? (B) If the privilege attached, did it terminate before the trial of this tort litigation between Harris and Drake? (C) If the privilege attached and did not terminate, was it properly claimed at the trial of this tort litigation between Harris and Drake?

A.

Heidebrink v. Moriwakiw²⁸ is Washington's leading case on when work product is...