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Harris v. Drake3/18/2003
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.'
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.' 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.'
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; that Drake was required to proceed under CR 35 'rather than try to adopt a PIP exam'; 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. 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; that CR 35 did not affect her ability to call Dr. Bede; and that Harris cou
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