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The Witness Litigation Privilege

January 18, 2019 in  News

New York Law Journal 

Let’s say an expert witness, during a trial or administrative hearing, presents false, seriously misleading or gravely biased testimony that causes the adverse litigant to lose the case outright or to have to bail out and settle for a piddling amount far short of the claim’s value. Can the losing party sue the misbehaving expert for damages incurred as a result of the untruthful statements? This issue, encased within a particular factual setting, split a Fourth Circuit Court of Appeals panel decision issued at the end of October. There’s some hefty law reflected in the majority and dissenting opinions along with some rather assertive critiques of the other’s positions.

The decision is Day v. Johns Hopkins Health Sys., 907 F.3d 766, 2018 U.S. App. LEXIS 30241 (4th Cir. Oct. 26, 2018) (rehearing en banc denied, 2018 U.S. App. LEXIS 34198 (4th Cir. Dec. 4, 2018). My discussion of the facts here is abbreviated because there’s lots of law and practical considerations to survey and limited space in this column. There’s a nice post on the decision by attorney-writer Anjelica Cappellino with informative background links to the circumstances. See “Fourth Circuit Affirms Immunity of Johns Hopkins Doctor as Expert Witness,” The Expert Institute (Dec. 4, 2018).

In a nutshell, here’s what happened in Day. Plaintiffs were survivors of two coal miners who sought benefits under the Black Lung Benefits Act, a statute enacted to compensate coal miners afflicted with “black lung disease” (pneumoconiosis). To recover, claimants must show “total disability” or death arising “at least in part out of coal mine employment.” If eligible for benefits, the mine operator that employed the miner is liable to pay those benefits.

The federal administrative program employs an adversarial system after a preliminary analysis is made of the miner’s claims by a Department of Labor district director. Should the latter determination be unsatisfactory, the decision can be challenged before an Administrative Law Judge (ALJ) where each party can present evidence, offer witnesses, cross-examine adverse experts and brief its case. The ALJ’s decision can be appealed to a Benefits Review Board and, thereafter, the Board’s decision can be appealed to an appropriate U.S. Court of Appeals.

Dr. Paul Wheeler, along with his radiology unit at Johns Hopkins University, provided expert opinions to coal mine operators opposing miners’ claims. In the claims here, Wheeler opined that neither miner suffered from black lung disease and that the x-ray results could be explained by other conditions. In October 2013, however, the Center for Public Integrity (CPI) issued a report concluding that Dr. Wheeler and the radiology unit were much less likely to find black lung disease than other doctors. Wheeler reviewed more than 1,500 cases and “never once concluded that a claimant suffered from a severe case of black lung.”

In 2014, the Department of Labor acted. The agency instructed its staff not to credit any evidence based on Dr. Wheeler’s expert opinion in the absence of persuasive evidence challenging CPI’s conclusions. The agency also encouraged affected miners to refile for benefits. Both miners here were awarded posthumous benefits after the report was published. The plaintiffs-survivors allege that these benefits are less than would have been awarded if their claims had not been denied on the basis of Dr. Wheeler’s testimony. The survivors sued alleging a variety of state law claims for fraud, tortious interference with economic interests, negligent misrepresentation and unjust enrichment. They also claimed violation of the federal RICO (Racketeer Influenced and Corrupt Organizations) Act.

Absolute Privilege

Defendants successfully moved to dismiss and the Fourth Circuit appellate panel affirmed 2-1. The primary basis for dismissal was the immunity afforded by the so-called Witness Litigation Privilege. The panel majority was guided by the “absolute immunity” our law provides to those persons who “aid in the truth-seeking mission of the judicial system. This protection extends to judges, prosecutors and witnesses.” The immunity for witnesses “is a longstanding and necessary part of the common law’s approach to adversarial adjudication.” Day, 2018 U.S. App. LEXIS 30241, at **6-**7. Thus, when a witness takes an oath, submitting his own testimony to cross-examination, the common law “does not allow his participation to be deterred or undermined by subsequent collateral actions for damages. The vital protection afforded all participants in litigation is unwavering. It is a bedrock of our law today just as it was centuries ago.” Id. at **7.

The panel majority was not writing on a blank slate. The immunity rule has been upheld by the U.S. Supreme Court in a variety of settings. See Briscoe v. Lahue, 460 U.S. 325 (1983) (rule applies to those who come forward of their own volition as well as those compelled). Indeed, the witness immunity rule applies to those who act with malice or ill will as well as those who are simply mistaken in their recollections. As stated by the nation’s high court in Briscoe, “the plaintiff could not recover even if the witness knew the statements were false and made them with malice.” Id. at 330.

So, can witnesses simply lie without deterrence or retribution? Of course not. Tribunals can disqualify unscrupulous witnesses from appearing in future proceedings. Prosecutors are authorized to seek convictions for perjury. As the Supreme Court has recognized, the criminal sanction for perjury is vital to “the integrity of our trial system.” United States v. Dunnigan, 507 U.S. 87, 97 (1993). What the Witness Litigation Privilege forecloses are lawsuits by disgruntled adversaries or collateral attacks by litigants on witness testimony. Sanctions for witness misbehavior are, rather, placed into the authority of a neutral officer—whether it be a judge, agency official or prosecutor. Day, 2018 U.S. App. LEXIS 30241 at **11.

The dissenting judge would allow the RICO claim for reasons expressed in the opinion—an approach the majority characterized as a “deep indifference to the Witness Litigation Privilege and a willingness to abrogate that privilege to a degree that no court has before.” Id. at **25.

In reality, the witness immunity topic is huge and, it follows, that many have written on the subject. (E.g., L.L. Hill, “The Litigation Privilege: Its Place in Contemporary Jurisprudence,” 44 Hofstra L. Rev. 401 (2015); G. Gerganoff, “Lawyers, Expert Witnesses and Ethics—Beyond Mere Testimony” (discussing ethical considerations); T. Hatcher, “Can An Expert Witness Be Sued?” The Expert Institute (Feb. 7, 2017); T.E. Peisch & C.M. Licursi, “Witness Immunity in the Post-Daubert World,” For The Defense (DRI, March 2008); J.L. Hill, “Blanket Immunity Sliding Away From Expert Witnesses,” LexVisio (June 28, 2015); B.R. Lanier & R.E. Carmody, “The Boundaries of the Litigation Privilege,” American Bankruptcy Inst. Journal (July/Aug. 2003).

The reasons for a strong, time-honored witness immunity rule are rooted in logic and common sense. Were witnesses, experts or others to be convenient targets for lawsuits by disappointed, disgruntled litigants, many witnesses would be chilled from testifying. Even if such lawsuits were unsuccessful in the main, the costs and inconvenience of defending oneself would be penalty enough for a witness not to incur the risk. Our adversarial adjudication systems would suffer qualitatively or, perhaps, even grind to a halt.

State Inroads?

Now, does that mean that it’s a “free ride” for misbehaving liars, short of perjury prosecutions? Not really. As strong as it is, the Witness Litigation Privilege is a common law rule. State law governs when the anti-expert lawsuits are grounded on state law causes of action. States can limit the impact of the immunity rule by legislation or court decision. Indeed, some writers report that a number of states (e.g., Pennsylvania, Alaska, California, New Jersey, Missouri and Texas) have abrogated witness immunity in cases where the expert was negligent in forming his opinion. (See Anjelica Cappellino’s post cited above; T. Hatcher’s post cited above, referring additionally to Connecticut, Louisiana, Massachusetts as permitting suit against the “friendly” expert for breach of contract or professional malpractice; and Michigan as allowing the attorney to sue his expert for damages resulting from reliance on the expert’s mistaken opinion; see also the “Blanket Immunity” post cited above.)

My own columns have discussed lawsuits against experts for professional misfeasance. See, e.g., M. Hoenig, “Liability Exposure When Experts Flub,” NYLJ, Nov.14, 2016, p. 3 (decisions in California and Pennsylvania).

The breadth of the common law witness immunity rule also might be affected via decisional law of a state. In Stega v. N.Y. Downtown Hospital, 31 N.Y.3d 661 (2018), the state’s highest court held that whether an absolute privilege applies to a communication made in the course of a quasi-judicial proceeding depends on the status of the subject of the communication. Thus, where plaintiff’s employment by a hospital was terminated and she was removed as chairperson of the hospital’s Institutional Review Board because of statements made to a federal agency’s inspectors (the FDA) by the hospital’s Acting Chief Medical Officer, plaintiff sued defendants for defamation.

Defendants moved to dismiss asserting that the statements made by the hospital’s chief officer to federal inspectors were protected by an absolute privilege. The motion court allowed the defamation claim because the statements were not shielded by an absolute privilege, the court reasoning that the FDA’s investigation had none of the indicia of a quasi-judicial proceeding and, further, lacked an adversarial procedure or a determination subject to review. The Appellate Division majority reversed, however, holding that the statements “were made in a quasi-judicial context in which an absolute privilege protects them.” The intermediate appellate court granted leave to appeal.

The Court of Appeals majority (four Judges) held that the allegedly defamatory statements by the hospital’s acting chief were not protected by absolute privilege. The court stated that the absolute immunity is generally reserved for communications made by “individuals participating in a public function, such as judicial, legislative, or executive proceedings. The absolute privilege … is designed to ensure that their own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function.” Statements uttered in the course of a judicial proceeding are absolutely privileged “as long as such statements are material and pertinent to the questions involved” in the proceeding.

A qualified or conditional privilege applies when a statement is “fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned. When the conditional or qualified privilege applies, statements are protected if they were not made with ‘spite or ill will’ or ‘reckless disregard of whether [they were] false or not.’” Whether administrative bodies exercise a quasi-judicial function is a critical question. The process involved must make available a mechanism for the party alleging defamation to challenge the allegedly false and defamatory statements. The absolute privilege “extends only if procedural safeguards enable the defamed party to contest what was said against her.”

In the Stega case, plaintiff was not entitled to participate, by way of a hearing or otherwise, in the FDA’s review and to challenge the statements. The FDA’s investigative process did not afford plaintiff a hearing or an opportunity to contest the remarks. Thus, the defamation suit could proceed. Two dissenting Judges, however, urged that the communications about plaintiff were absolutely privileged.


The Witness Litigation Privilege continues to be a formidable policy-based immunity rule. However, its application in given cases requires careful analysis, state-by-state, as legislative or decisional incursions have been effected. The fact that the Fourth Circuit’s Day decision and the N.Y. Court of Appeals’ Stega decision triggered strong dissenting opinions on appeal shows that significant tensions may exist in specific scenarios. Counsel need to devote attentive scrutiny to applicable precedent in a given state.