Harris v. Drake

Decision Date14 October 2004
Docket NumberNo. 74025-9.,74025-9.
Citation152 Wash.2d 480,99 P.3d 872
CourtWashington Supreme Court
PartiesBradley R. HARRIS, individually, Respondent, v. Doris B. DRAKE, individually, and Dennis Drake, individually and the marital community composed thereof, Petitioners.

Marilee C. Erickson, Reed McClure, Two Union Square, Seattle, David Hadley Middleton, Federal Way, for Petitioner.

Kari Ingrid Lester, Ben F. Barcus & Associates PLLC, Tacoma, for Respondent.

Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, for Amicus Curiae Washington State Trial Lawyers Association Foundation.


In this case we consider whether the report of, and opinions gained from, a medical examination conducted pursuant to the terms of personal injury protection (PIP) in an automobile insurance policy may be considered work product in the subsequent litigation with the tortfeasor. We hold that the report may be entitled to the qualified immunity of the work product doctrine.


Doris Drake, defendant/petitioner, rearended Bradley Harris, plaintiff/respondent in April 1996. Harris injured his back and shoulder in the accident. He filed a PIP claim with his insurer, United Services Automobile Associates (USAA). Numerous physicians treated Harris over the next 20 months.

In November 1996, USAA required Harris undergo an independent medical examination (IME), according to the terms of Harris's PIP coverage. USAA retained Dr. Brandt Bede to perform the examination. Dr. Bede's report indicated that Harris had suffered an impingement syndrome of the left shoulder as a result of the automobile accident.

In September 1997, Harris's orthopedic surgeon also diagnosed him with impingement syndrome and performed arthroscopic surgery for the condition. By December 1997, Harris was recovered and pain free with full range of motion. He moved to Augusta, Georgia in February 1998.

Dr. Bede wrote a second report in February 1998, after reviewing additional medical information. In the second report, Dr. Bede concluded that Harris's impingement syndrome was not related to the automobile accident with Drake.

Harris filed suit against Drake in May 1998. During discovery, Drake obtained copies of Dr. Bede's reports though the reports were not provided by Harris or his attorney. Neither party contends that Harris knowingly and voluntarily provided Dr. Bede's reports to Drake. In March 1999, Drake listed Dr. Bede as a defense expert. The original trial date was continued from June 1999 to September 1999. The parties filed and exchanged witness and exhibit lists prior to the September 1999 trial date. Drake designated Dr. Bede as a witness and listed Dr. Bede's reports as exhibits. Harris objected to Dr. Bede's reports, but the objections did not raise the issue of privilege or work product immunity.

Once more the trial was postponed before going forward on April 10, 2001. On April 9, 2001, the day before trial, Harris filed a motion in limine to exclude the testimony of Dr. Bede. Harris contended that Dr. Bede was Harris' own consulting expert, whom Harris was not intending to call at trial. Further, Harris claimed that Dr. Bede's reports were the work product of Harris' insurance company. Harris claimed he was entitled to assert qualified immunity under the work product doctrine on behalf of the insurance company because Harris was authorized by USAA to seek reimbursement of the PIP coverage from Drake.

The trial court instructed the parties to consult with USAA concerning its position regarding Drake's use of Dr. Bede's report, and Drake's intent to call Bede as a witness. Joanne Randolph, a subrogation specialist at USAA, indicated during a phone call with Harris's counsel that USAA would not take a position adverse to its insured and would not allow Dr. Bede to be called as Drake's witness. Harris's counsel advised the court of USAA's position.

The court granted Harris's motion to exclude Dr. Bede. Drake argued that exclusion of Dr. Bede left her without a medical witness. She asked for a continuance. Noting that the trial had already been continued two times and that Harris had traveled from Georgia for the trial, the court denied Drake's request for a continuance.

At trial, Drake admitted liability. At the end of the evidence, the court directed a verdict for Harris on causation and special damages, and submitted general damages to the jury. The jury awarded $120,000 in general damages, plus costs, for a total verdict of $140,965.


Civil Rule (CR) 26 sets forth the general rules of discovery in civil matters. That rule allows for discovery of anything material to the litigation and not protected by privilege. The work product doctrine provides a qualified immunity from discovery. Under the work product doctrine, documents prepared in anticipation of litigation are discoverable only upon a showing of substantial need. Heidebrink v. Moriwaki, 104 Wash.2d 392, 396, 706 P.2d 212 (1985). The doctrine is incorporated in CR 26(b)(4),1 which provides in part:

Subject to the provision of subsection (b)(5) of this rule, a party may obtain discovery of documents and tangible things... prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Thus, CR 26(b)(4) requires that work product can be obtained only upon a showing of necessity for one's case and an inability to acquire similar material elsewhere. Pappas v. Holloway, 114 Wash.2d 198, 210, 787 P.2d 30 (1990).

As set out above, CR 26(b)(4) begins with a proviso: "Subject to the provisions of subsection (b)(5) of this rule a party may...." CR 26(b)(5) concerns discovery from experts. 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 CR 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. Detwiler v. Gall, Landau & Young Constr. Co., 42 Wash.App. 567, 568-69, 712 P.2d 316 (1986). The work product doctrine limits not only pretrial discovery but may also prevent a consulting expert who is hired in anticipation of litigation from testifying at deposition or trial. See Crenna v. Ford Motor Co., 12 Wash.App. 824, 828-31, 532 P.2d 290 (1975)


To determine whether the work product privilege should apply under the facts of this case, the Court of Appeals proposed three questions: (1) Did the work product protection attach in anticipation of PIP litigation or arbitration between USAA and Harris?, (2) If the privilege attached, did it terminate before the trial of this tort litigation between Harris and Drake?, and (3) If the privilege attached and did not terminate, was it properly claimed at the trial of this tort litigation between Harris and Drake? Harris v. Drake, 116 Wash.App. 261, 272, 65 P.3d 350 (2003).

Did the work product protection attach?

In answering the first question, we refer to Heidebrink, 104 Wash.2d 392, 706 P.2d 212, the key Washington case on work product doctrine. Under Heidebrink, determination of whether material was prepared in the anticipation of litigation in a particular case, and thus qualifies as work product, requires examination of the specific parties and their expectations. Id. at 400, 706 P.2d 212.

In Heidebrink, the defendant/insured gave a recorded statement to his insurer following an automobile accident. Plaintiff brought suit for injuries and sought to obtain a copy of the defendant/insured's recorded statement. The insurance company refused to turn it over, claiming the recorded statement was prepared in anticipation of a possible lawsuit against the insured and was therefore work product. Heidebrink, 104 Wash.2d at 399, 706 P.2d 212 (citing Fireman's Fund Ins. Co. v. McAlpine, 120 R.I. 744, 391 A.2d 84 (1978) (where a Rhode Island court reasoned that the seeds of prospective litigation are sown when the insured reports a claim to the insurance company, and the prudent party begins to prepare his or her case at that time)).

Further, the Heidebrink court noted that when the insurance company takes its insured's statement of how the accident happened, the insured reasonably expects that this statement to his own insurer will be kept confidential, will be transmitted to the attorney selected to represent the insured, and will not be turned over to the opposing side. Id. at 400, 706 P.2d 212. In addition, the insured is required by the insurance contract's cooperation clause to supply a statement to the insurer. An insured risks losing coverage for the incident if he or she fails to cooperate by refusing to supply the requested statement. Tran v. State Farm Fire & Cas. Co., 136 Wash.2d 214, 224, 961 P.2d 358 (1998). This contractual obligation creates a reasonable expectation in the insured that the information obtained by the insurer will be kept confidential. Heidebrink, 104 Wash.2d at 400, 706 P.2d 212.

Just as the insured's statement in Heidebrink was obtained for the purpose of defending against a liability claim, Harris's medical examination was conducted by USAA for the purpose of defending against a claim for further PIP benefits. In addition, like the "liability insured" in Heidebrink, a "PIP insured" has a contractual obligation to submit to an IME at the PIP insurer's request. The insured must comply with the insurance contract's requirements in order to secure the promised coverage. Like the...

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