State v. Riddle

• Citation: 155 Or.App. 526,964 P.2d 1056
• Parties: STATE of Oregon, Respondent, v. Douglas Leroy RIDDLE, Appellant. 95CR3069FE; CA A93789. . *
• Decision Date: 26 August 1998
• Court: Court of Appeals of Oregon

Page 1056

964 P.2d 1056

155 Or.App. 526

STATE of Oregon, Respondent, v. Douglas Leroy RIDDLE, Appellant.

95CR3069FE; CA A93789.

Court of Appeals of Oregon In Banc. ^*

Argued and Submitted Sept. 29, 1997.

Resubmitted In Banc Feb. 11, 1998.

Decided Aug. 26, 1998.

Walter J. Ledesma, Deputy Public Defender, argued the cause for Appellant. With him on the brief was Sally L. Avera, Public Defender.

Ann F. Kelley, Assistant Attorney General, argued the cause for Respondent. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

De MUNIZ, Judge.

Defendant appeals his convictions on two counts of criminally negligent homicide, ORS 163.145, two counts of fourth degree assault, ORS 163.160, and one count of driving while intoxicated, ORS 813.010. Defendant argues that the trial court abused its discretion in excluding certain evidence under OEC 403, and that the trial court erred in allowing the state to call as an expert witness an accident reconstructionist who had originally been retained to investigate the accident for the defense but was not called to testify by the defense. Defendant asserts that the expert's opinion concerning the causation of the accident that led to the charges against him were privileged under OEC 503. Because we agree with defendant's second argument, we do not address his first assignment of error.

At about 9:00 p.m. on November 12, 1995, while defendant was driving his pickup truck across a bridge on Highway 38 near Elkton, he crossed the center line and struck an oncoming car. The driver, Keelie Garrison, and one of the passengers, Sarah Robbins, were killed instantly. Two other passengers were injured and another passenger had no injuries. A witness who arrived very shortly after the collision spoke with defendant and noticed an odor of alcohol on his breath. The witness reported his observation to a police officer who arrived shortly thereafter. Defendant denied having anything to drink that evening. The officer gave defendant several field sobriety tests and concluded that he was impaired. Defendant consented to an Intoxilyzer test, which was administered at 11:41 p.m. and which showed defendant's blood alcohol level to be .088 percent. Blood and urine tests done several hours later also revealed the presence of alcohol, as well as marijuana metabolites, in defendant's system.

At trial, a waitress from a nearby inn testified that she had served defendant beer earlier in the evening and tequila at about 8:00 p.m. Defendant drank some coffee, then left the inn between 8:45 and 9:00 p.m. At about 9:00 p.m., a motorist who was driving on Highway 38 at approximately 55 miles per hour was overtaken and passed by defendant's pickup truck. The motorist and her passenger both testified that they believed that the truck was traveling at least 75 miles per hour. Less than a minute later, the motorist came on the accident scene on the bridge.

The state called as an expert witness an accident reconstructionist, Tom Fries, who testified that, in his opinion, the accident occurred because defendant had come around the corner before the bridge too fast and crossed the center line and then over corrected, causing him to strike the oncoming car. He estimated that defendant's truck had been going between 53 and 80 miles per hour and that the car had been going between 42 and 49 miles per hour when the impact occurred.

Defendant called John Talbot, another accident reconstructionist, who testified that Fries' reconstruction of the accident was physically impossible and that he believed that the collision had occurred because defendant's steering had locked up. He estimated that defendant's speed had been between 49 and 58 miles per hour at the time of the collision. Several of defendant's friends testified that they had noticed problems with the steering on defendant's truck prior to the collision.

The state sought to introduce evidence from another accident reconstructionist, John Myers, to rebut Talbot's testimony. Defendant objected on the ground that Myers' opinion was protected under OEC 503, because Myers originally had been retained by the defense to investigate the accident. The court then received testimony from Daniel Bouck, who had been defendant's attorney at the time that Myers was retained to investigate the accident. Bouck testified that he had retained Myers to analyze data from the collision and to render an opinion as to the cause of the collision. Myers went with Bouck and a defense investigator to the scene of the collision to gather data. Bouck and Myers discussed a number of potential theories of the case, including the theory put forth by the state at the preliminary hearing. Bouck had not decided whether he would retain Myers to testify at trial, but he did intend to retain Myers to explain the mathematics and physics necessary for Bouck to be able to cross-examine the state's accident reconstructionist. Bouck did not intend for Myers to disclose their theories to the state. Bouck related to Myers at least one statement that had been made by defendant and possibly more. The trial court ruled that Myers' opinion as to the cause of the collision was not privileged under OEC 503, but the fact that Myers had been retained by the defense, had investigated the scene with defense counsel and had developed theories about the case with defense counsel would be inadmissible, as would defendant's statements that had been related to Myers by defense counsel.

On rebuttal, Myers testified that he had examined the site of the collision, as well as police reports and photographs, and that, in his opinion, the collision occurred because defendant lost control of the vehicle, possibly due to overinflation of the tires and hydroplaning. He estimated the speed on defendant's truck at the time of the collision to be 45 to 65 miles per hour. He also testified that he disagreed with Talbot's reconstruction of the accident.

On appeal, defendant asserts that the trial court erred in admitting Myers' testimony on rebuttal, because Myers' opinion about the cause of the collision was developed for the defense in anticipation of litigation and, thus, fell within the privilege codified at OEC 503, or within the work product doctrine. "A client has a privilege to * * * prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client * * * [b]etween the client's lawyer and the lawyer's representative." OEC 503(2)(b). " 'Representative of the lawyer' means one employed to assist the lawyer in the rendition of professional legal services, but does not include a physician making a physical or mental examination under ORCP 44." OEC 503(1)(e). The legislative commentary to the OEC states:

"The definition of 'representative of the lawyer' is consistent with present Oregon law. It recognizes that in rendering legal service, a lawyer may use advisors and assistants in addition to those employed in the process of communicating. The definition includes an expert who is hired to assist in rendering legal advice or to help in the planning and conduct of litigation, but not one employed to testify as a witness." Legislative Commentary to OEC 503, reprinted in Laird C. Kirkpatrick, Oregon Evidence 209-10 (3d ed 1996) (emphasis supplied).

A "confidential communication" is a "communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client [.]" OEC 503(1)(b). Myers clearly was a "representative of the lawyer," as he was retained to help defense counsel in the planning and conduct of litigation. The question before us is whether the expert opinion that Myers developed in the course of his employment by defense counsel, which he communicated to defense counsel, was a "confidential communication" within the meaning of OEC 503. The trial court concluded that the fact that the opinion was developed for defense counsel and with the assistance of defense counsel was privileged, but the contents of the communication were not privileged. We disagree.

A significant body of literature exists concerning this topic, and numerous cases have discussed it at length. Most jurisdictions treat expert opinions rendered in anticipation of litigation either as privileged or as falling within the work product doctrine of qualified privilege discussed below. The trial court apparently believed the question to be one of first impression in Oregon and, therefore, based its conclusion on a law review article that took the position that a privilege for expert opinion rendered in anticipation of litigation might not be necessary. See Edward J. Imwinkelried, The Applicability of the Attorney-Client Privilege to Non-Testifying Experts: Reestablishing the Boundaries Between the Attorney-Client Privilege and the Work Product Protection, 68 Wash U L Q 19, 21-22 (1990). That approach, however, is not consistent with Oregon law, as explained below. ¹

A discussion of whether material prepared in anticipation of litigation is subject to a privilege or a qualified privilege logically begins with Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Although Hickman was decided under the Federal Rules of Civil Procedure, its rationale has been almost universally adopted to one degree or another by most states, including Oregon, as discussed below. In Hickman, one party sought to discover through interrogatories various oral and written statements made by witnesses to an attorney for the opposing party. The Court concluded that the memoranda, statements and mental impressions sought did not, strictly speaking, fall within the attorney-client privilege. That conclusion, however, did not end the inquiry. The Court noted that the party seeking the information had full access to...