Doris & Dennis Drake v. Bradley

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. Morawaki;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.

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.

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 CR26(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?

Heidebrink v. Moriwaki28 is Washington's leading case on when work product
is acquired, prepared, or developed 'in anticipation of litigation.' It
directs that we answer that question by examining 'the specific parties
involved and the expectations of those parties.'29
In Heidebrink, the Supreme Court described its view of the parties and
their expectations when, after an accident, a liability insured gives
information to a liability insurer. On March 15, 1982, Moriwaki was
burning grain stubble in a field adjacent to the highway. The resulting
smoke obscured the vision of passing drivers and caused a chain reaction
collision. A driver, Heidebrink, was injured. Two days later, on March
17, 1982, Moriwaki gave a tape-recorded statement to an adjuster employed
by his liability carrier. As far as the opinion shows, neither Moriwaki
nor Heidebrink had yet decided to litigate, or even contacted an attorney.
Several months later, Heidebrink sued Moriwaki for her personal injuries.
In the discovery phase of the case, she requested a copy of Moriwaki's
statement to his liability carrier. Moriwaki and his carrier refused,
claiming work product. Sustaining that refusal, the Supreme Court ruled
that when a liability insured gives his or her liability insurer a
statement after an accident, the statement is prepared 'in anticipation of
litigation' even though no one has yet decided to litigate or even
contacted an attorney. The court reasoned (1) that insureds are
contractually obligated to provide such statements, and thus that they
expect their carriers to hold such statements in confidence; (2) that
insureds expect their carriers to forward such statements to counsel when
counsel is obtained; (3) that insureds will be hesitant to reveal their
knowledge to their insurers unless their statements are protected; and (4)
that insureds will bear the burdens of insurance without reaping its
benefits unless their statements are protected.

Heidebrink's reasoning applies as much to information given by a PIP
insured to a PIP insurer (either directly or through the PIP insurer's
medical expert) as to information given by a liability insured to a
liability insurer (or the liability insurer's representative). Just as a
liability insured is contractually obligated to provide accident
information by giving a written or recorded statement at the liability
insurer's request, a PIP insured is contractually obligated to provide
medical information by submitting to a independent medical examination at
the PIP insurer's request. Just as a liability insured expects his or her
accident information to be held in confidence, a PIP insured expects his or
her medical information to be held in confidence. (Indeed, a PIP insured
may expect his or her medical condition to be held more confidentially than
a liability insured's accident information.) Just as a liability insured
will be hesitant to reveal accident information that is not protected from
disclosure to the tortfeasor, a PIP insured will be hesitant to reveal
medical information that is not protected from disclosure to the
tortfeasor. Just as a liability insured will be hampered from reaping the
benefits of liability insurance unless accident information is protected, a
PIP insured will be hampered from reaping the benefits of PIP insurance
unless medical information is protected. Accordingly, we hold that
information given by a PIP insured to a PIP insurer (or the PIP insurer's
medical examiner) under the circumstances present here is given in
anticipation of PIP litigation or PIP arbitration within the meaning of CR
26(b)(4) and 26(b)(5), and that such information is entitled to the same
degree of work product protection as information given by a liability
insured to a liability insurer in anticipation of third-party tort
litigation. It would be inconsistent and unfair to hold that a PIP insured
(usually a plaintiff in later tort litigation) does not act in anticipation
of a PIP dispute when he or she gives information to a PIP medical examiner
seven months after an accident, while at the same time holding, as
Heidebrink requires, that a liability insured (usually a defendant in later
tort litigation) does act in anticipation of third-party litigation when he
or she gives information to a liability insurance adjuster only two days
after an accident.

In this case, USAA retained Dr. Bede to verify or refute Harris' PIP
claims. On November 26, 1996, Dr. Bede acquired information from Harris by
examining him, then used that information to prepare and develop opinions
concerning Harris' condition. Given Heidebrink's holding that a liability
insurer was acting in anticipation of tort litigation only two days after
the accident, USAA and Dr. Bede were certainly acting in anticipation of
PIP litigation or PIP arbitration more than seven months after the
accident. Accordingly, we hold that the work product privilege initially
attached to the information that Dr. Bede acquired, and to the opinions
that he thereafter prepared and developed.

We turn next to whether work product protection terminated before the trial
in this case. We inquire (1) whether work product protection terminates
when the litigation or arbitration in which it initially attached
terminates, and (2) whether work product protection terminates at the end
of the discovery phase of the litigation or arbitration in which it is
presently being claimed.

As just seen, our first termination-related inquiry is whether work product
protection can be claimed after the proceeding in which the protection
attached has been concluded. In at least three cases, the Washington
Supreme Court has said yes.
In Pappas v. Holloway,31 Holloway retained Pappas and several other lawyers
as co-counsel in litigation involving diseased cattle. After that
litigation had ended, Pappas sued Holloway for fees, and Holloway
counterclaimed against Pappas for legal malpractice. Pappas then cross-
claimed against his former co-counsel and sought to discover documents they
had prepared in anticipation of the diseased-cattle litigation. The trial
court denied work product protection to co-counsel, reasoning that 'the
materials Pappas requested were prepared in anticipation of litigation
which had already terminated.'32 Rejecting this position, the Washington
Supreme Court stated:

We disagree with the trial court that the protection provided by the work-
product doctrine ceases after the litigation for which the documents were
prepared has terminated.
. . . .

Courts have generally relied on Hickman in holding the work-product
doctrine continues to protect materials prepared in anticipation of
litigation even after the litigation has terminated. . . . We agree that
the underlying purposes served by the work-product doctrine and articulated
in Hickman can be preserved only if the protection attaches even after
litigation has terminated. For this reason we hold the trial court erred
in ruling the work-product doctrine did not apply in this case.{33}

The court ultimately held that Pappas had demonstrated 'substantial need'
for the documents that he sought.
In Dawson v. Daly34 and Limstrom v. Ladenburg,35 the Washington Supreme Court
revisited the same question. The Dawson court stated, 'The protection of
the work product rule is triggered prior to the official initiation of
litigation and extends beyond the official termination of litigation.'36
The Limstrom court stated, 'The work product rule continues to protect
materials prepared in anticipation of litigation even after the litigation
has terminated.

Drake relies on Johnson v. McCay.38 In December, 1990, Johnson was a
passenger in Turner's car when McCay rear-ended Turner's car. Johnson
incurred medical expenses, so she made a PIP claim against Turner's PIP
carrier, Allstate. Allstate demanded that Johnson submit to a PIP medical
examination by Dr. Grow, and the examination took place in October, 1991.
In March, 1992, Johnson sued McCay for negligence, and in June, 1993, the
case was tried. When McCay wanted to call Dr. Grow as a witness, Johnson
claimed work product protection. The trial court sustained her claim, and
McCay appealed. Division Three stated:

Had Ms. Johnson and Allstate been the litigants here, and had Dr. Grow been
retained by Ms. Johnson, her attorneys, or her insurance carrier, his
medical evaluation of Ms. Johnson would clearly have been in anticipation
of litigation. But this litigation is between Ms. Johnson and Ms. McCay .
. . . Allstate, the party requiring the medical examination, was neither a
party nor the representative of a party. . . .

Division Three went on to say that work product protection applies 'only
insofar as the information sought was obtained for the very purpose of
preparing for the litigation in question';40 that 'Dr. Grow's medical
examination . . . was not . . . in anticipation of this litigation';41 and,
similarly, that 'Dr. Grow's medical examination . . . was not performed in
anticipation of the instant litigation.'42 Division Three ultimately
concluded that the trial court had erred by sustaining Johnson's claim of
work product protection, but that the error was harmless under the
particular circumstances. Division Three seems to have reasoned in part
that work product protection could have been claimed in the earlier PIP
proceeding between Johnson and Turner's PIP carrier (Allstate), but that
work product protection could not be claimed in a different proceeding,
including but not limited to the present tort litigation between Johnson
and McCay. We think, however, that this reasoning runs counter to Pappas,
Dawson, and Limstrom, and that we are obligated to follow the Supreme
Court.43 Accordingly, we hold here that work product protection did not
terminate when the Harris-USAA PIP proceeding terminated.

Our second termination-related inquiry is whether work product
protection can be claimed after the end of the discovery phase of the case
in which the claim is made. The Washington cases uniformly answer yes.45
Here then, the work product protection that attached to Dr. Bede's facts
and opinions on November 26, 1996 did not terminate before the date of
trial, April 10, 2001.

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Click the case caption above for the full text of the Court's Opinion.