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Volkert v. Fairbank Construction Co., Inc.

Court of Appeals of Washington, Division 1

April 8, 2019

ERIC D. VOLKERT, Respondent,
FAIRBANK CONSTRUCTION CO., INC., a Washington corporation, Petitioner, and ELIZABETH ZIEGLER, PH.D., Non-Party Petitioner.

          Hazelrigg-Hernandez, J.

         Eric D. Volkert subpoenaed all of Dr. Elizabeth Ziegler's past medical reports prepared for litigation in an attempt to show her bias against treating doctors. The trial court ordered Ziegler to produce the records. Fairbank Construction Co. and Ziegler seek reversal, arguing that Washington's Uniform Health Care Information Act (UHCIA) prohibits disclosure of the records absent authorization from the prior examinees or notice and an opportunity to object. Because the trial court applied the wrong standard and the reports contain confidential health care information, we reverse.


         On September 5, 2012, Eric Volkert was injured while working on a construction site at which Fairbank Construction Company, Inc. was the general contractor. Volkert struck his head on a piece of lumber protruding from the back of a truck owned by Fairbank. On September 26, 2013, Volkert filed a suit for negligence against Fairbank and claimed that he had suffered severe and permanent injuries from the incident, including traumatic brain injury (TBI) and neurological injuries. Fairbank asserted contributory negligence of the plaintiff as an affirmative defense.

         Volkert's treating doctors testified that he had sustained a TBI as a result of the accident. Fairbank hired neuropsychologist Elizabeth A. Ziegler, Ph.D. to give her expert opinion on Volkert's injuries. Ziegler holds a Ph.D. in clinical psychology, completed an accredited postdoctoral fellowship in clinical neuropsychology, and is a practicing, licensed psychologist in Washington. Ziegler reviewed Volkert's medical records, conducted a forensic interview with Volkert, and performed her own neuropsychological evaluation of Volkert. Her evaluation included administration of sixteen individual tests as well as a "[b]attery of free standing and embedded performance validity tests." She prepared a lengthy report in which she opined that there was no objective evidence of concussion or mild TBI stemming from the accident. In the report, Ziegler noted that a brain injury is diagnosed based on acute characteristics at the time of the event and stated that she could not find support for such a diagnosis in Volkert's medical records from the day of the accident. She also found that inconsistencies in his responses during the neuropsychological evaluation indicated that malingering may have been a factor.

         The case went to trial in July 2016 and the jury found Volkert and Fairbank equally negligent. The jury awarded Volkert past and future economic damages of $334, 000 but did not award any non-economic damages for pain and suffering. Upon Volkert's motion for a new trial on damages, the trial court found that the jury's award of $0 for non-economic damages was not supported by substantial evidence and ordered a new trial on damages only.

         Volkert deposed Ziegler before the second trial. At the deposition, Ziegler estimated that she works with the defense in personal injury cases about 99% of the time and has prepared forensic reports for about 225 to 250 cases. She keeps copies of most of the forensic reports that she writes on a laptop. Although she was not able to estimate how often she disagrees with plaintiffs' treating healthcare providers, she asserted that she was "very, very likely" to disagree with treatment plans in cases of mild TBI "because they're not evidence-based." Ziegler agreed that, based on an empirical review analyzing reports prepared during litigation from neuropsychologists throughout the country, malingering was identified as a factor in 30-50% of cases. However, she did not know the rate at which she found malingering to be a factor in her examinations. She stated that she does not track this data and would have to spend "weeks to months going through each report" and conducting statistical analysis to produce that information.

         Volkert's counsel questioned Ziegler regarding her awareness of anything that limited her ability to use the reports that she had created and the degree of confidentiality that was afforded to the information. Ziegler responded that she did not know of any limitations on her use of her reports or ability to testify to their contents apart from motions in limine. She testified that she informs examinees during the consent process that the examination and whatever is in their records is "an open book." She admitted that she testifies in open court regarding the content of her reports and does not attempt to hide the identity of the examinee because "the case is such-and-such versus such-and-such. It's very obvious who I'm talking about when I'm on the stand, so there's no reason to take protective measures." Counsel did not ask whether Ziegler had testified to or otherwise disclosed the contents of any of her reports outside of the examinee's own case. When asked about the possibility of Volkert's counsel looking through her past reports to identify patterns, Ziegler expressed concern that disclosing the reports would infringe on the past examinees' privacy and stated that she did not understand the consent to disclosure to apply outside examinees' own cases.

         The same day, Volkert subpoenaed from Ziegler all medical legal reports and reviews that she had authored concerning any Personal Injury Protection (PIP) claims, Underinsured Motorist (UIM) claims, or as otherwise ordered under CR 35. Ziegler was directed to produce the reports within eight days. Fairbank lodged seven objections to the subpoena, arguing that the subpoena imposed an undue burden and expense on Ziegler, the materials requested were beyond the scope of discovery permitted, the subpoena did not provide sufficient time for production of the requested material, the subpoena requested the disclosure of privileged, confidential, and protected information, the subpoena requested materials and expert opinions which were unrelated to the case in question, the subpoena was so broad and overreaching that a detailed description of the exact nature of the privileges involved was not possible in the time allotted to respond, and Ziegler had never received permission through the consent process from the subjects of the reports requested to disseminate their information to other attorneys outside of the case in connection with which they were interviewed.

         In response to Fairbank's objections, Volkert proposed a stipulation that would require Ziegler to produce any reports that were not subject to protective orders preventing disclosure. However, the stipulation would ensure that the subjects of the reports would only be referenced by their initial at trial and that no "highly sensitive information contained in the report such as rape, incest, abortions, sexual abuse, HIV status, or similar matters" would be referenced by either party.

         The stipulation specified that any examination regarding these reports at trial would focus on "matters related to patterns of [Ziegler's] opinions that can be shown over the body of work that she has performed as a forensic expert," particularly concerning findings of malingering and disagreements with treating doctors regarding TBI and treatment plans. The proposed stipulation did not provide for redaction of the records before they were disclosed to Volkert. Ziegler did not agree to produce the records and Fairbank did not sign the proposed stipulation.

         Volkert then filed a motion requesting that the court strike Ziegler's objections to the subpoena and order her to produce the documents. In the motion, Volkert argued that the reports were not confidential and were relevant to show Ziegler's bias against treating doctors. Through independent counsel, Ziegler filed a response to the motion arguing that the reports contained confidential health information, the request was unduly burdensome because Ziegler would be required to redact each of the reports extensively, and that production and analysis of the reports would not lead to any new evidence because Ziegler had already asserted at her deposition that she almost always testifies for defendants and routinely disagrees with treating physicians. Ziegler included as an exhibit an example of a stipulation regarding a CR 35 examination which includes the following term:

No part of the examiner's report, testing, conclusions, opinions or files may be given or shown to anyone other than defendant, defense counsel and staff, and defendant's expert witnesses for any reason. The doctor and defendant's counsel should be permitted to use these for trial preparation and in trial only. They should not be disseminated to any other person at any time for any reason.

         The sample stipulation was not from one of Ziegler's files and was signed by a different doctor. Counsel for Ziegler noted that, in reviewing her own files, over two thirds of the CR 35 stipulations contained a similar confidentiality provision. She also noted that these stipulations are not always provided to the examiners and Ziegler would therefore have to check the court records of every case to determine whether she could disclose the report. In his reply, Volkert argued that Ziegler had no standing to assert the privacy interests of the subjects of her reports and ...

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