Historically in the United States, witnesses are afforded immunity when testifying in judicial proceedings. The 4th Circuit Court of Appeals has further affirmed this doctrine in a recent decision establishing that expert witnesses squarely fall within the scope of these protections. In Day, et al. v. Johns Hopkins, Health System, et al., No. 17-2120 (4th Cir. 2018), the district court dismissed the plaintiff’s claims against a Johns Hopkins doctor, which alleged that the defendant purposely provided false medical testimony during an administrative hearing for the Federal Black Lung Program. The 2-1 decision, which found that expert witnesses are shielded from civil liability under Maryland and federal law, is a telling indicator that courts have no intention to displace the scope of witness privilege.
The Allegations Against the Expert
Plaintiffs filed a lawsuit against Dr. Paul Wheeler and Johns Hopkins Hospital in relation to expert witness testimony Wheeler had given in administrative hearings, which concluded that the plaintiffs did not suffer from black lung disease, and accordingly, were not entitled to benefits under the Federal Black Lung Program. Congress enacted the Black Lung Benefits Act to provide compensation to coal miners disabled by pneumoconiosis (also known as black lung disease) related to coal mine employment. In order to obtain benefits, claimants, who can either be coal miners or their survivors, must demonstrate total disability or death due to the disease. If deemed eligible for benefits, the mine operator that employed the miner is liable for payments. The Department of Labor completes the preliminary analysis, and then the decision can be challenged before an Administrative Law Judge. The ALJ’s decision can be appealed to the Benefits Review Board, and in turn, that decision can be appealed to the United States Court of Appeals.
The appellants of Day, et al. v. Johns Hopkins, et al. are the survivors of two coal miners who had sought benefits under the Black Lung Benefits Act but were denied on the basis of Dr. Wheeler’s testimony. As an expert witness for the coal mine operators opposing the claims, Dr. Wheeler, along with the Johns Hopkins University’s radiology unit, testified that the former miners did not suffer from black lung disease.
The appellants then filed a class action lawsuit against the doctor and hospital under the federal Racketeer Influenced and Corrupt Organizations Act as well as state claims of fraud, tortious interference with occupational economic interests, negligent misrepresentation, and unjust enrichment. The lawsuit was largely based on an investigation conducted by the Center for Public Integrity, in partnership with ABC News, which discovered that a unit of radiologists were misreading X-rays that almost always concluded that the miner did not have black lung disease. The coal companies then used these readings in administrative hearings to defend against the payout of benefits to miners. The investigation found that Dr. Wheeler had read X-rays in over 1,500 cases since 2000 but never found one case of black lung disease, despite hundreds of instances with conflicting medical opinions. The class action suit alleged that Johns Hopkins and Wheeler “engaged in a pattern and practice with the intent to defraud at least hundreds of toxically injured coal miners of federally earned benefits.” In 2017, a Maryland federal judge dismissed the lawsuit, finding that Dr. Wheeler had immunity as an expert witness for coal companies and could not be sued under Maryland and federal law.
The 4th Circuit’s Decision: Expert Immunity
In its 2-1 decision, the 4th Circuit affirmed the district court’s dismissal of the class action lawsuit against the doctor and hospital on the basis of the Witness Litigation Privilege. As the Circuit explains, “[i]mmunity for witnesses―commonly known as the Witness Litigation Privilege―is a longstanding and necessary part of the common law’s approach to adversarial adjudication.” Established in English common law, “[w]hen a witness takes the 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.”
Citing United States Supreme Court decisions and Maryland precedent, the 4th Circuit held that the Witness Litigation Privilege “is foundational to any system of adversary justice, and is therefore vital to both federal law and the law of the sovereign states.” The Court opined that if a witness were not able to testify with immunity, he would be less inclined to offer his testimony, for fear of retribution, or may purposely alter his testimony and distort the evidence. As the Court further explained: “Any erosion of the common law immunity for witnesses would undermine the truth-seeking function of the initial proceeding, invite new claims by disgruntled litigants, and deter participation by those in a position to offer valuable testimony. The privilege has been around so long and recognized so widely for a reason: it helps the judicial system work.” The Circuit held that experts, such as Dr. Wheeler, clearly fall within the scope of the privilege and are thereby barred from civil claims related to his testimony as an expert.
The 4th Circuit noted that the immunity “does not empower a witness to violate his oath with impunity,” as all witnesses are still subject to cross examination. Witnesses may also be disqualified from testifying in future proceedings, and in severe cases, can be prosecuted for perjury. The Court concluded that “while the alleged conduct in this case, if true, would be morally reprehensible, that is simply not dispositive of the legal question before us. Any balancing or sliding-scale test that varies with the type of witness testimony in the initial trial or the form of the claim in the later collateral action would guarantee the vexatious litigation that the privilege was designed to prevent.”
What’s Next for Expert Immunity?
Immunity of all witnesses – including experts – from civil liability is grounded in common law principles. The 4th Circuit’s decision in Day may appear, as the described by the dissent, as an unnecessary expansion of the Witness Litigation Privilege. However, this decision should be viewed in the larger context of expert trends in the past few years. There are a number of states, including Pennsylvania, Alaska, California, New Jersey, Missouri, and Texas) that have abrogated witness immunity in cases where the expert was negligent in forming his opinion. In support of truthful, unbiased expert testimony, the American Medical Association, along with various other physicians’ groups, such as the American Society of Anesthesiologists, the American Board of Urology, the American Academy of Pediatrics, have developed their own codes of conduct and requirements for physicians when testifying as experts.
Overall, despite the decision in Day, the general trends have indicated more – not less – scrutiny when evaluating the propriety of expert testimony. However, witness immunity is an important issue to watch to see if courts, one day, resolve the split in decisions.