The plaintiffs brought suit against Dr. Paul Wheeler and Johns Hopkins Health System and others for Dr. Wheeler’s actions as an expert witness in administrative hearings for the Federal Black Lung Program. Dr. Wheeler, along with his radiology unit at Johns Hopkins University, provided expert opinions to coal mine operators that opposed the miners’ claims. He offered his opinion in the plaintiffs’ hearings, concluding that neither suffered from black lung disease.
The plaintiffs’ lawsuit alleged Dr. Wheeler’s expert opinion was biased toward the coal industry. Specifically, they alleged that Dr. Wheeler concluded that the X-ray results in each case were not consistent with black lung disease and could instead be explained by other conditions, even when proper application of medical standards would lead to a contrary opinion. The plaintiffs further alleged that Dr. Wheeler misled the tribunal and the miners as to which standards he was applying.
The plaintiffs alleged that Dr. Wheeler’s systemic violation of international standards was not apparent until the Center for Public Integrity (CPI) published a critical report on the Johns Hopkins radiology unit in 2013. The CPI report found that Dr. Wheeler and his colleagues at Johns Hopkins were much less likely to find cases of black lung disease than other doctors. This made the unit a favorite of coal companies, which routinely used these opinions to defeat miners’ claims. The CPI found that Dr. Wheeler reviewed more than 1,500 cases and never once concluded that a claimant suffered from a severe case of black lung.
The plaintiffs’ lawsuit included a federal claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), Pub. L. No. 91-452, Title IX (1970) (codified at 18 U.S.C. §§ 1961-1968 (2012)), as well as a variety of Maryland state law claims. The district court dismissed each of these claims on the basis of the Witness Litigation Privilege, which protects witnesses who testify in judicial and quasi-judicial proceedings from later civil liability.
Witness Litigation Privilege
The Witness Litigation Privilege affords absolute immunity to those persons who aid the truth-seeking mission of the judicial system, which extends to judges, prosecutors and witnesses. When 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 Witness Litigation Privilege applies to those who come forward of their own volition as well as those who are compelled. It also applies to those who provide factual testimony as well as those who provide opinions. The U.S. Supreme Court has stated, “[t]he witness had an absolute privilege [and] [t]he plaintiff could not recover even if the witness knew the statements were false and made them with malice.”
The U.S. Court of Appeals for the Fourth Circuit (“Federal Appellate Court”) stated its opinion published on October 26, 2018 in the present case: “The Witness Litigation Privilege in other words is foundational to any system of adversary justice, and is therefore vital to both federal law and the law of the sovereign states.” The Federal Appellate Court further stated, “The reason for the witness privilege here is plain: the prospect of liability for those who participate in judicial proceedings would weaken ‘the ultimate fairness of the operation of the system itself.'”
Nonetheless, the absolute protection of the witness litigation privilege does not empower a witness to violate his oath with impunity: witness statements are routinely submitted to cross-examination; tribunals can disqualify unscrupulous witnesses from appearing in future proceedings; and, prosecutors are authorized to, in a severe case, seek a conviction for perjury against a witness who has knowingly lied under oath. 18 U.S.C. § 1621.
In the case it was deciding, the Federal Appellate Court stated that the witness litigation privilege is part of both federal common law and the state law of Maryland, and the absolute immunity found in both bodies of law are coextensive.
The Federal Appellate Court held that the allegations made against Dr. Wheeler and his associates at Johns Hopkins fall squarely within the scope of the Witness Litigation Privilege: the allegations against Dr. Wheeler relate to testimony and opinions that he offered in the plaintiffs’ BLBA proceedings, which were quasi-judicial in nature, and the statements made by Dr. Wheeler as an expert in the administrative proceeding are within the privilege’s scope.
The Federal Appellate Court further held that RICO’s civil cause of action manifests no intention to displace the Witness Litigation Privilege: “Given the complete absence of direction on the subject of witness immunity, as well as the explicit decision to not include perjury within the definition of racketeering activities, we cannot conclude that RICO abrogated witness immunity.”
A dissenting opinion stated, in part: “the majority’s treatment of the civil RICO claim is fatally flawed and lacks supporting authority. In my view, the RICO allegations are compelling and should go forward in the district court. The majority’s decision will leave America’s coal miners and their families with no civil remedy for the criminal activities of Dr. Wheeler and his racketeering partners. Put succinctly, the majority has — on an ultra-thin record — unnecessarily expanded the so-called witness litigation privilege (the doctrine of “absolute witness immunity”), and then misapplied its expanded immunity principles to affirm the dismissal of the civil RICO claim. Second, notwithstanding the reluctance of federal courts to expand state law, the majority has applied its broad view of absolute witness immunity to the state law claims in the complaint and endorsed their dismissal as well.”
Source Day v. Johns Hopkins Health System Corporation, No. 17-2120.
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