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Hopkins doctor has expert witness’ liability protection, 4th Circuit holds

The 4th U.S. Circuit Court of Appeals, housed at the Lewis F. Powell Jr. U.S. Courthouse in Richmond, Virginia. (U.S. General Services Administration)

The 4th U.S. Circuit Court of Appeals, housed at the Lewis F. Powell Jr. U.S. Courthouse in Richmond, Virginia. (U.S. General Services Administration)

Expert witnesses in civil litigation cannot be sued based on their testimony even if it reflected not their true opinion but what those paying for their court appearance wanted them to say, a divided federal appeals court ruled Friday in dismissing black-lung victims’ fraud claim against Johns Hopkins and one of its doctors who regularly testified for coal companies.

This “witness litigation privilege” from lawsuits and liability is necessary to ensure witnesses remain willing to testify and be cross-examined so courts can arrive at the truth, the 4th U.S. Circuit Court of Appeals said in its published 2-1 decision.

This fear of liability’s chilling effect on testimony is so strong that the privilege must be applied to Dr. Paul Wheeler despite an independent group’s report and a federal agency’s deep concern that the radiologist’s testimony in black-lung litigation was and remains incredibly biased in favor of mining companies, the 4th circuit added in affirming a federal judge’s decision.

“It requires no great feat of imagination to see where a civil action for damages against a witness would lead,” Judge J. Harvie Wilkinson III wrote for the majority.

“Armed with a cause of action against opposing witnesses, both parties would use such actions to strafe those who testified for the other side,” added Wilkinson, who was joined by Judge Stephanie D. Thacker. “The havoc would fall on experts and lay witnesses alike, just as it would fall on those who appeared for the plaintiff, the defendant, or the prosecution. Stripped of their immunity, witnesses would be dragged into court once again, this time to defend their earlier testimony.”

The court’s decision was a defeat for Michael S. Day Sr.’s and Junior McCoy Barr’s family members. They had sought to sue Wheeler and Johns Hopkins Health System Corp. for fraud and related claims based on his successful testimony on behalf of coal-mining companies that Day and Barr had not died of black-lung disease.

Wheeler and Johns Hopkins deny the allegations.

Christopher T. Nidel, an attorney for the families, said Monday that he and his clients are weighing their options, including a potential appeal to the entire 4th Circuit or a request for review by the U.S. Supreme Court.

By immunizing experts who give false testimony, the 4th Circuit is “insulating people that are not just offering opinions but committing a crime,” said Nidel, of Nidel & Nace PLLC in Washington. “Something needs to be fixed.”

The families had sued following a 2013 Center for Public Integrity report that concluded Wheeler had reviewed more than 1,500 cases alleging black lung and never once found a severe instance of the disease.

The U.S. Labor Department, which adjudicates black-lung claims, had found the report so compelling it instructed agency staff to not credit Wheeler’s expert opinion and encouraged coal miners denied benefits based on his testimony to refile their claims. The Day and Barr families did so and were awarded posthumous benefits but then filed suit in federal court alleging the compensation would have been greater but for Wheeler’s discredited testimony.

The families claimed fraud under Maryland law and the federal Racketeer Influenced and Corrupt Organizations Act, popularly known as RICO. The families also alleged tortious interference with economic interests, negligent misrepresentation and unjust enrichment.

Senior U.S. District Judge J. Frederick Motz, who sits in Baltimore, dismissed the lawsuit, prompting the families’ appeal to the 4th Circuit.

The appeals court acknowledged the families’ desire to hold Wheeler and his employer Hopkins accountable but said their effort must yield to the justice system’s reliance on the willingness of witnesses to testify free of the fear of liability.

“No privilege comes without a cost,” Wilkinson wrote.

“A privilege is a trade-off,” he added. “It protects some admittedly bad actors in the hopes of achieving a much larger good. The reason for the 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.”

Though free of civil liability, witnessed who fail to testify truthfully can be unmasked during cross-examination, disqualified from testifying in future administrative and judicial proceedings and potentially prosecuted for perjury, the 4th Circuit stated.

In dissent, Judge Robert B. King said the witness litigation privilege should not apply to efforts to defraud opposing parties and, by extension, the judicial process.

“I am unable to fathom how the conspiratorial use of false and fraudulent expert reports – intended to mislead coal miners, coal companies, lawyers, and adjudicative bodies – can in any way contribute to the ‘truth-seeking function’ of the adversarial process,” King wrote. “Those distortions should neither be sanctioned nor encouraged by the courts. Just as muddy water does not become clear with the addition of more dirt, adjudicatory proceedings to determine the truth will never be aided by the addition of intentional falsehoods and deceptions.”

Wheeler’s attorney, Andrew Jay Graham, said Monday that “we are pleased with the decision.” Graham is with Kramon & Graham P.A. in Baltimore.

Johns Hopkins’ attorney, James D. Mathias, did not return telephone and email messages Monday seeking comment on the decision. Mathias is with DLA Piper LLP in Baltimore.

The 4th Circuit rendered its decision in Michael S. Day Jr. et al. v. Johns Hopkins Health System Corp. et al., No. 17-2120.

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