In Harris v. Drake, __ Wn. App. __, 65 P.3d 350 (Wash. App., Div. 2, March 18, 2003), Division Two of the Washington Court of Appeals considered whether, in an action brought by a PIP (Personal Injury Protection) insured against a third-party tortfeasor, the work product privilege protected the opinions of a PIP medical examiner who the PIP insured did not expect to call at trial. The court held that the work product privilege protected both the PIP medical examiners' opinions and the factual bases for those opinions.
In Harris, Bradley Harris was rear-ended by Doris Drake. Afterwards, Harris complained of pain in his left shoulder. Harris filed a PIP claim with his insurer, USAA. In order to verify or refute Harris' claim, USAA demanded that Harris submit to an independent medical examination and retained Dr. Bede to perform it. After the examination, Dr. Bede wrote two, separate reports. In the first, Dr. Bede concluded that Harris' shoulder injury was related to the accident. In the second report, written over a year later, Dr. Bede concluded Harris' shoulder injury was not related to the accident.
Harris then sued Drake. During discovery, Drake listed Dr. Bede as the medical expert she intended to call at trial. Harris sought to block Dr. Bede from testifying, arguing that Dr. Bede's expert opinions, together with the factual bases for those opinions, were protected by the work product privilege. The trial court agreed and did not allow Dr. Bede to testify.
On appeal, the Washington Court of Appeals affirmed. The court first discussed the nature of the work product privilege and reiterated that it protects only information that is acquired, prepared, or developed "in anticipation of litigation." For example, if a liability insurer takes the recorded statement of its insured after an accident, that statement is said to have been acquired "in anticipation of litigation" and is therefore protected from disclosure in a third-party lawsuit against the insured. Similarly, said the court, when USAA demanded that Harris submit to the medical examination, USAA and Dr. Bede were acting in anticipation of either PIP litigation or PIP arbitration. Under either, the work product privilege applies.
Although work product protection attached for purposes of the USAA-Harris PIP proceeding, can the protection be claimed after that proceeding has concluded? The court answered this question in the affirmative. In so doing, the court put itself at odds with Division Three of the Washington Court of Appeals, which decided Johnson v. McCay, 77 Wn. App. 603, 893 P.2d 641 (1995).
In Johnson, the court interpreted the phrase "in anticipation of litigation" to mean in anticipation of the instant litigation only, not some earlier litigation—e.g., a PIP proceeding. According to Johnson, then, even if work product protection could have been claimed in an earlier PIP proceeding, that protection cannot be claimed in later tort litigation. The Harris court disagreed, reasoning that Johnson "runs counter to" several Washington Supreme Court decisions.
Because of the conflict between Harris and Johnson, PIP insurers in future cases should be mindful of where third-party tort litigation might be filed. If the litigation is filed in Division Two, the opinions of a PIP medical examiner, and the factual bases for those opinions, are protected. If the litigation is filed in Division Three, those same opinions and facts are discoverable. Unfortunately for PIP insurers, this is an uncertainty the Washington Supreme Court has yet to resolve.