Opinion
Civil Action No. 3:04CV809LN.
June 3, 2005
MEMORANDUM OPINION AND ORDER
This cause is before the court on motion of defendant C. Thomas Boylen, M.D., to dismiss plaintiff's claims against him pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Sheshadri Raju, M.D., has responded in opposition. The court, having considered the submissions of the parties and the relevant authorities, concludes that defendant's motion should be granted.
This action arises out of a medical malpractice lawsuit filed against Dr. Raju in Hinds County Circuit Court in which Dr. Boylen provided expert testimony on behalf of the plaintiff, Wanda Sue Brewer. In the wake of that action, Dr. Raju filed this lawsuit against Dr. Boylen seeking recovery of actual and punitive damages based on allegations that Dr. Boylen "was grossly negligent in forming his opinion" in the Brewer case in that he (1) testified on a "contingency fee" basis, (2) formed his opinion that Dr. Raju should have taken a chest x-ray without having the x-rays of the decedent and thereby formed an opinion which deviated from the applicable standard of care for a physician, and (3) misrepresented that he had examined x-rays that he did not have in his possession. Dr. Raju alleges that Dr. Boylen's actions injured him by raising his insurance premiums, injuring his reputation and causing him to suffer emotional distress and other damages.
On March 14, 2005, Dr. Boylen filed the instant motion to dismiss, contending that Dr. Raju's claims, which are grounded exclusively on Dr. Boylen's testimony as an expert witness in theBrewer case, are barred by the doctrine of absolute immunity, which shields witnesses in judicial proceedings from civil liability relating to their testimony. See Knotts by Knotts v. Hassell, 659 So. 2d 886, 889 (Miss. 1995). Dr. Raju argues in response that since the Mississippi Supreme Court has not recognized absolute immunity for expert witnesses, defendant's motion to dismiss should be denied.
"[U]nder the common law, any person involved in [judicial] proceedings, whether a party, witness, counsel, or judge is accorded absolute immunity so long as the statements made or documents filed are reasonably related to the judicial inquiry."Netterville v. Lear Siegler, Inc., 397 So. 2d 1109, 1112 (Miss. 1981); see also Knotts by Knotts v. Hassell, 659 So. 2d 886, 890 (Miss. 1995).
The Fifth Circuit summarized the rule and policy concerns underlying witness immunity in Quirk v. Mustang Engineering, Inc., stating:
Witnesses receive absolute quasi-judicial immunity from subsequent damages liability arising from their participation in judicial proceedings because they are considered an "integral" part of the judicial process. See Briscoe v. LaHue, 460 U.S. 325, 335, 103 S. Ct. 1108, 1115, 75 L. Ed. 2d 96 (1983). "It is precisely the function of a judicial proceeding to determine where the truth lies," id. at 335, 103 S. Ct. at 1115 (quoting Imbler v. Pachtman, 424 U.S. 409, 439, 96 S. Ct. 984, 999, 47 L. Ed. 2d 128 (1976) (White, J., concurring)), and witnesses play an essential role in that endeavor. If witnesses were subject to liability arising from their participation in judicial proceedings, however, they might be less inclined to come forward and provide "candid, objective, and undistorted" testimony. Id. at 333-34, 103 S. Ct. at 1113-14. Accordingly, witnesses are given absolute immunity so that "the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." Id. at 333, 103 S. Ct. at 1113 (quoting Calkins v. Sumner, 13 Wis. 193, 197 (1860)).143 F.3d 973, 975-76 (5th Cir. 1998); see also Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983) (recognizing that a witness may be reluctant to come forward to testify if he is concerned his testimony could subject him to a subsequent civil action for damages, or that if he does come forward and testify, his testimony "might be distorted by the fear of subsequent liability" and "thus . . . deprive the finder of fact of candid, objective, and undistorted evidence.").
Coupled with these policy underpinnings for witness immunity is the fact that "the safeguards built into the judicial process tend to reduce the need for private damages actions. . . ."Riemers v. O'Halloran, 678 N.W.2d 547, 551 (N.D. 2004). As the court in Riemers explained,
The judicial process contains safeguards against inaccurate testimony by witnesses immune from suits for damages: . . . "Witnesses are, of course, subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of the information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error."Id.; see also Zuber v. Buie, 849 So. 2d 559, 563 (La.App. 2003) (stating that "[p]ossible liability to the adverse party does not guarantee truth, and reliability may be adequately ensured by the witness' oath, the hazards of cross-examination, and the threat of a perjury prosecution").
In Knotts, supra, the Mississippi Supreme Court considered whether a claim could be stated against two physicians in a medical malpractice action for allegedly testifying falsely in their depositions that a drug had been administered when they knew this was untrue. The court found it doubtful that such a claim was legally cognizable, observing,
Although this Court has failed to address this issue previously, several other states have refused to allow a civil suit for damages suffered as a result of perjury . . . In the opinion of the courts which have taken this position, no civil action may be based upon perjured testimony due to the fact that such testimony is absolutely privileged. This Court has long recognized the absolute privilege that is attached to relevant statements made during the course of judicial proceedings . . . In order to facilitate the policy concerns supporting the privilege-namely to encourage open and honest communication-we adopt the position of our sister states by finding that no civil action may be based upon perjured testimony.Knotts, 659 So. 2d at 889-90 (citations omitted).
Plaintiff acknowledges that the Mississippi Supreme Court has held that a lay witness in a judicial proceeding is immune from liability for his testimony. He points out, though, that the Mississippi courts have not considered whether an expert witness would similarly enjoy absolute immunity, and he submits that the Mississippi Supreme Court would likely accord expert witnesses only qualified immunity, rather than absolute immunity, given the similarity between experts and plaintiffs, recent instances of experts abusing their absolute immunity in other jurisdictions, and that court's recent "conservative rulings." The court is unpersuaded.
Witness immunity has been consistently held to extend to expert witnesses where subsequent civil liability is sought to be imposed based on the substance of their testimony. See, e.g., Metoyer v. Connick, 2000 WL 863133, *4 (E.D. La. 2000) (observing that immunity analysis "rests on functional categories, not on the status of the defendant," and that from a functional standpoint, the government's expert witness "on the witness stand performs the same functions as any other witness" and should be entitled to the same immunity for his testimony);Kahn v. Burman, 673 F. Supp. 210 (E.D. Mich. 1987), aff'd, 878 F.2d 1436 (6th Cir. 1989) (holding, in action by physician for defamation, negligence, and fraud against physician who gave deposition testimony as expert witness against him in earlier malpractice action against the plaintiff, that the expert witness's deposition testimony was absolutely protected against civil liability); JM Co. v. Whynott, 2004 WL 2397329, *1 (Conn.Super. 2004) (holding that plaintiff's claims against expert witness were barred by the doctrine of absolute immunity);Zuber, 849 So. 2d at 563 (finding that "the fundamental principles of witness immunity continue to shield a for-hire, volunteer witness against an adverse party's subsequent defamation claim"); Riemers, 678 N.W.2d at 551 (holding an accountant enjoyed absolute immunity for his testimony as an expert in a divorce action); Eye Medical Surgical Ass'n, Inc. v. Advantage Health Partners, 2005 WL 23360, *3 (Ohio App. 2005) (holding that an expert witness for the government was immune from civil liability "from any tortious acts she allegedly committed in that capacity," noting that "absolute immunity `extends to all persons, whether governmental, expert, or lay witnesses, integral to the trial process'") (citations omitted);Cooper v. Parker-Hughey, 894 P.2d 1096, 1099 (Okla. 1995) (concluding that expert witness was immune from suit based upon her testimony in the criminal trial of the plaintiff); Hoechlin v. Urbiha, 2005 WL 950716, *3 (Wash.App. 2005) (affirming dismissal of claims based on expert witness immunity). Implicit in all these cases is that the same policy considerations, and the same safeguards built into the judicial process, which support witness immunity for "lay" witnesses apply with equal force to expert witnesses.
In fact, in cases involving expert witnesses, the judicial process provides even greater safeguards against inaccurate or unsupported testimony. See Fed.R.Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (holding that the trial court performs a "gatekeeping function," and must make a "preliminary assessment of whether the reasoning or methodology underlying [an expert's] testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue"); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 248 (1999) (extending Daubert test to all expert testimony); Mississippi Transp. Com'n v. McLemore, 863 So. 2d 31, 35 (Miss. 2003) (adoptingDaubert/Kumho test for evaluating admissibility of expert testimony).
In this vein, the court notes that while Dr. Raju has pointed to the recent revelation of alleged gross improprieties by experts in silica multidistrict litigation in Texas in relation to providing opinions, In re Silica Products Liability Litigation, No. 04-1553 (S.D. Tex.), as grounds for withholding absolute witness immunity from experts, it appears from the record in that case that the court is addressing the expert witnesses' role and testimony therein in accordance with its gatekeeping function as mandated by Daubert. That is, "the safeguards built into the judicial process" are at work to prevent the admission of inaccurate testimony.
The court is aware of only two situations in which witness immunity has not been extended to expert witnesses. The first is in cases in which an expert has occupied the status of a "complaining witness" in pre-trial proceedings. See, e.g., Keko v. Hingle, 318 F.3d 639, 642 (5th Cir. 2003) (finding a forensic dentist was not entitled to qualified immunity for his participation in probable cause hearing); Carney v. U.S., 2004 WL 1285037, *8 (N.D. Tex. 2004) (citing Keko for proposition that "[t]here is an exception to absolute immunity . . . when a witness is a `complaining witness'"); see also Anthony v. Baker, 955 F.2d 1395, 1398-1401 (10th Cir. 1992) (in malicious prosecution action, holding that a lay witness receives absolute immunity for grand jury testimony whereas a complaining witness/deputy sheriff receives qualified immunity for grand jury testimony). A "complaining witness," described by the Fifth Circuit as one who "instigates, encourages, or continues [a] prosecution," Keko, 318 F.3d at 642, is entitled only to qualified immunity, and not absolute immunity.
In his response to defendant's motion, Dr. Raju points out that a plaintiff in a civil action may be held liable in a subsequent action for malicious prosecution or abuse of process if the plaintiff is found to have acted with malice or an ulterior motive in instituting the underlying proceedings. He likens this malice requirement to qualified immunity recognized in the "complaining witness" cases, and analogizes the role of a plaintiff in a civil action to an expert witness since an expert, unlike a lay witness, stands to gain financially from his testimony. The court finds his argument wholly unpersuasive.
First, civil actions for malicious prosecution and abuse of process serve to deter citizens from instituting (or instigating) civil or criminal actions out of malice or from misusing the legal process. See Pugh v. Easterling, 367 So. 2d 935 (Miss. 1979). Thus the plaintiff's role in the process is far different from that of his witnesses, including his expert witnesses. Here, Dr. Boylens' role in the Brewer litigation cannot be properly characterized as that of a "complaining witness" or a "complaining party." He was merely hired by the plaintiff to provide his expert opinion and testimony and did not himself instigate, encourage or continue prosecution of the claims against Dr. Raju.
A second exception to witness immunity has been recognized by some courts in cases where a plaintiff has sued his own retained expert for professional negligence or breach of contract. See, e.g., Marrogi v. Howard, 282 F.3d 854 (5th Cir. 2002) (under Louisiana law, witness immunity does not bar a claim against a party's own retained expert witness arising from the expert's allegedly deficient performance of his duties to provide litigation services, such as the formulation of opinions and recommendations, and to give opinion testimony before or during trial); Murphy v. A.A. Mathews, 841 S.W.2d 671, 682 (Mo. 1992) (permitting cause of action against a party's own expert witness for negligently performing litigation support services, reasoning that by agreeing to provide professional services to a party for a fee, the expert assumed the duty of care of a skillful professional); Pollock v. Panjabi, 781 A.2d 518 (Conn.Super. 2000) (holding that claims in connection with expert's alleged failure to provide adequate support services were not barred by witness immunity). These so-called cases involving a "friendly expert", which are premised on the existence of an expert's contractual or legal duty to his client, are an exception to the general rule of witness immunity, and have no application to a party's claim against an adverse expert witness. See Williams v. National Medical Services, Inc., 400 F.3d 1102, 1104 (8th Cir. 2005) (holding that an adverse expert witness is not subject to malpractice liability "because in that situation, the expert owes no professional duty to the adversary"); Kahn v. Burman, 673 F. Supp. 210 (E.D. Mich. 1987), aff'd, 878 F.2d 1436 (6th Cir. 1989).
In view of the foregoing, it is manifest that Dr. Boylen's motion to dismiss should be granted. In addition to dismissal, Dr. Boylen has asked the court to award him attorney's fees and costs associated with defending this action pursuant to Rule 11 of the Mississippi Rules of Civil Procedure. In response, plaintiff contends that his complaint addresses a matter of first impression under Mississippi law, and therefore, the complaint cannot be characterized as frivolous and the court agrees.
The court rejects Raju's argument that the "current conservative Mississippi Supreme Court would address this abuse in the same manner it has handled abuses in mass joinder . . . [and] abuses in out-of-state plaintiffs [sic] forum shopping," citing the court's recent opinions in Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004) and Culbert v. Johnson Johnson, 883 So. 3d 550 (Miss. 2004).
Based on the foregoing, Dr. Boylen's motion to dismiss Dr. Raju's claims against him is granted; however, defendant's motion for costs is denied.
A separate judgment will be entered in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED.