Estate of Michael Dempsey v. Spokane Washington Hospital Co., LLC
34573-4
| Wash. Ct. App. | Dec 14, 2017Background
- Ellen Smith (individually and as personal representative for the Estate of Michael Dempsey) sued Deaconess, Rockwood Clinic, and Dr. Wukelic for medical negligence; plaintiffs retained Dr. Steven Simons as a testifying medical expert.
- Defense counsel subpoenaed Dr. Simons for documents and deposition, requesting all correspondence and notes concerning Michael Dempsey, specifically including materials received from plaintiffs' counsel.
- Plaintiffs asserted attorney work product and other privileges; a special discovery master ordered in-camera production of the contested documents and a privilege log, but stated no privileges applied to counsel–expert exchanges because Simons was a testifying expert.
- The trial court affirmed the discovery master; plaintiffs sought discretionary review by the Court of Appeals.
- The Court of Appeals reversed in part and remanded to the special discovery master for in-camera review consistent with the opinion, resolving scope of waiver when an attorney provides materials to a testifying expert and whether draft expert opinions are discoverable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney-prepared documents given to a testifying expert remain attorney work product or are waived | Plaintiffs: attorney work product protects documents prepared by counsel even if given to a testifying expert; any disclosure should be assessed under CR 26(b)(4)'s substantial-need/undue-hardship standard | Wukelic: producing attorney-prepared materials to a testifying expert waives protection and materials should be discoverable | Court: Attorney work product protection survives but is waived to the extent the attorney provided facts (or assumptions) to the testifying expert that the expert considered in forming opinions; mental impressions/opinion work product remain protected and require in-camera review. |
| Whether draft expert opinions (preliminary drafts) are discoverable | Plaintiffs: drafts are work product/opinion work product and protected from discovery | Defendant: seeks disclosure of draft writings underlying expert opinions | Court: Draft opinions of a testifying expert are protected as expert witness work product and are not discoverable. |
| Whether federal Rule 26(b) interpretations should be adopted | Plaintiffs: urge adoption of federal interpretations (including protection for certain communications) | Defendant: also urged federal guidance (disagreed on contours) | Court: Declined to wholesale adopt federal interpretations because CR 26(b) differs from federal rules; state rule analyses control. |
| Entitlement to appellate attorney fees and sanctions | Plaintiffs sought fees under CR 37 and CR 45 for overbroad subpoena | Defendant/record: no evidence Simons incurred fees or lost earnings | Court: Denied attorneys’ fees on appeal and below; no basis shown for CR 37 or CR 45 sanctions. |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (1947) (origin of attorney work-product doctrine protecting counsel’s trial preparation)
- Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299 (1993) (standard of appellate review for discovery rulings; abuse of discretion)
- In re Firestorm 1991, 129 Wn.2d 130 (1996) (distinguishing protections for expert materials and applicability of CR 26(b)(5))
- In re Detention of West, 171 Wn.2d 383 (2011) (scope of expert disclosure under CR 26(b)(5); distinction between testifying and consulting experts)
- Soter v. Cowles Publ'g Co., 131 Wn. App. 882 (2006) (discussing CR 26 and attorney work-product protection)
- Pappas v. Holloway, 114 Wn.2d 198 (1990) (limiting attorney work-product protection where material is central to claim or defense)
- Dietz v. Doe, 131 Wn.2d 835 (1997) (privilege is not absolute; limits and rationale for disclosure)