Harrison v. Roitman

131 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
12-
VIVIAN MARIE LEE HARRISON, No. 64569
Appellant,
vs.
NORTON A. ROITMAN, M.D., DEC 17 2015
Respondent.
;:t
IPACTIE K. UN .!:
CLE? ,' i p1.J EZ•
DYLLA: VIAL;
Appeal from a district court order dismissing a mett cal
malpractice action. Eighth Judicial District Court, Clark County;
Kenneth C. Cory, Judge.
Affirmed.
John Ohlson, Reno,
for Appellant.
John H. Cotton & Associates, Ltd., and John H. Cotton and John J.
Savage, Las Vegas,
for Respondent.
BEFORE THE COURT EN BANC,
OPINION
By the Court, DOUGLAS, J.:
In this opinion, we consider whether a party-retained expert
providing a psychiatric analysis of an adverse party during divorce
proceedings may later be sued by the adverse party based on statements
made in his written psychiatric analysis report. In accordance with long-
established precedent extending absolute immunity to judicial
participants, we recognize that party-retained expert witnesses have
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recognizes all factual allegations in the complaint as true and draws all
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inferences in favor of the complainant. Id. at 228, 181 P.3d at 672. Thus,
Vivian's complaint should only be dismissed if it appears beyond a doubt
that no factual allegations, taken as true, would entitle her to relief. Id.In this case, the validity of the district court's order granting dismissal
turns on whether it correctly applied the doctrine of absolute immunity,
which is a question of law that we review de novo. See Fink v. Oshins, 118
Nev. 428, 432, 49 P.3d 640, 643 (2002).
On appeal, Vivian contends that the district court improperly
dismissed her complaint because Nevada limits the availability of an
absolute immunity defense to claims for defamation. Because her
complaint alleges medical malpractice rather than defamation, she argues
that Dr. Roitman's defense of absolute immunity does not apply. In
opposition, Dr. Roitman contends that he is entitled to the protection of
absolute immunity because he made the challenged statements as an
expert participating in a judicial proceeding. He further contends that his
claim of absolute immunity is not contingent upon the type of action
brought by Vivian.
Absolute immunity, a doctrine rooted in the common law, "is a
broad grant of immunity not just from the imposition of civil damages, but
also from the burdens of litigation, generally." State v. Second Judicial
Dist. Court (Ducharm), 118 Nev. 609, 615, 55 P.3d 420, 423 (2002) (citing
James L. Knoll, Protecting Participants in the Mediation Process: The Role
of Privilege and Immunity, 34 Tort & Ins. L.J. 115, 122 (1998)). Questions
of immunity are driven by public policy, requiring a balancing of "the
social utility of the immunity against the social loss of being unable to
attack the immune defendant." Id. at 614-15, 55 P.3d at 423. The
doctrine is further 'justified and defined by the functions it protects and
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serves." Rolon v. Henneman, 517 F.3d 140, 145 (2d Cir. 2008) (quoting
Forrester v. White, 484 U.S. 219, 227 (19881); see also Briscoe v. LaHue,
460 U.S. 325, 342 (1983) ("[O]ur cases clearly indicate that immunity
analysis rests on functional categories."). Thus, in analyzing this issue, we
are mindful that "functional categories, not. . . the status of the
defendant' control[s] the immunity analysis." Rolon, 517 F.3d at 145.
The United States Supreme Court has applied this "functional
approach" to resolving questions of immunity. See, e.g., Briscoe, 460 U.S.
at 335-36 (determining by application of the functional approach that a
testifying police officer was protected by absolute witness immunity
because while testifying he served the same functions as other witnesses);
Buckley v. Fitzsimmons, 509 U.S. 259, 259 (1993) (applying the functional
approach to determine whether qualified or absolute immunity applied to
state actors accused of malicious prosecution).' This court applied the
Supreme Court's functional approach in Ducharm to reach the conclusion
that child protective service agents, integral constituents of the court
process, act under the protection of absolute immunity when they provide
information to the court. 2 118 Nev. at 615-19, 55 P.3d at 424-26. We
'In his concurrence, Justice Kennedy squarely rejects an analysis
supplemented by bright-line rules rather than one established entirely on
function. 509 U.S. at 289 (Kennedy, J., concurring). He explains that
"ensuring parity in treatment among. . . actors engaged in identical
functions" was the precise goal of the functional analysis. Id. at 288-89.
2 1nDucharm, we ultimately held that the district court did not err
by refusing to dismiss the claims based on a defense of absolute immunity
because the alleged negligence occurred after the court order was entered.
118 Nev. at 620, 55 P.3d at 427.
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similarly employ the functional approach here to determine whether the
social utility of recognizing absolute immunity for party-retained experts
is sufficiently great to justify their pardon from the burdens of litigation.
We are convinced that, much like the child protective service agents in
Ducharm, party-retained expert witnesses play an integral role in our
judicial prows s. 3
The functional approach
The functional approach is made up of three separate
inquiries. Id. at 616, 55 P.3d at 424. First, we ask "whether the [person
seeking immunity] performed functions sufficiently comparable to those of
[persons] who have traditionally been afforded absolute immunity at
common law." Id.; see also Butz v. Economou, 438 U.S. 478, 513 (1978)
(comparing the role of a federal hearing examiner with the role of a judge
and concluding that they are "functionally comparable"). Second, we
consider "whether the likelihood of harassment or intimidation by
personal liability [is] sufficiently great to interfere with the [person's]
performance of his or her duties." Ducharm, 118 Nev. at 616, 55 P.3d at
424; see also Butz, 438 U.S. at 513 (concluding that the fractious nature of
adjudications within a federal administrative agency, and the likelihood of
harassing litigation evolving therefrom, are similar to the judicial
process). Third, we ask "whether procedural safeguards exist in the
system that would adequately protect against [illegitimate] conduct by the
[person seeking immunity]." Ducharm, 118 Nev. at 616, 55 P.3d at 424-25
3 See
also Briscoe, 460 U.S. at 345-46 (noting that the participation of
witnesses "in bringing the litigation to a just—or possibly unjust—
conclusion is . . . indispensable").
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(citing Caroline Turner English, Stretching the Doctrine of Absolute Quasi-
Judicial Immunity: Wagshal v. Foster, 63 Geo. Wash. L. Rev. 759, 765-66
(1995)); see also Butz, 438 U.S. at 513 (concluding that federal
administrative law requires many of the same safeguards as the judicial
process and extending immunity to persons performing adjudicatory
functions within federal agencies).
Immunity at common law
At common law, "Mlle immunity of parties and witnesses from
subsequent damages liability for their testimony in judicial proceedings
was well established." Briscoe, 460 U.S. at 330-31 (footnote omitted)
(citing Cutler v. Dixon (1585) 76 Eng. Rep. 886; 4 Co. Rep. 14b.; Anfield v.
Feverhill (1614) 80 Eng. Rep. 1113; 1 Ro Rep. 61; Henderson v. Broomhead
(1859) 157 Eng. Rep. 964, 968; 4 M & N. 569). Quoting a 19th century
court, the United States Supreme Court reasoned that "the claims of the
individual must yield to the dictates of public policy, which requires that
the paths which lead to the ascertainment of truth should be left as free
and unobstructed as possible." Id. at 332-33 (quoting Calkins v. Sumner,
13 Wis. 193, 197 (1860)). The Court further explained that "[a] witness's
apprehension of subsequent damages liability might induce two forms of
self-censorship." Id. at 333. First, a witness may be reluctant to present
4As noted, Briscoe extended witness immunity to testifying police
officers. 460 U.S. at 346. Justice Marshall dissented. Id. Notably, he
argued that support for witness immunity at common law was not as well-
recognized as the majority presumed. Id. at 363 (Marshall, J., dissenting).
Nonetheless, the U.S. Supreme Court has continued to recognize witness
immunity as a well-established, common-law principle. See, e.g., Forrester
v. White, 484 U.S. 219, 226 (1988).
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testimony due to fear of subsequent damages liability. Id. Second, even if
a witness makes it to the stand, he may color his testimony as a
consequence of the same fear. Id. In particular, "[al witness who knows
that he might be forced to defend a subsequent lawsuit, and perhaps to
pay damages, might be inclined to shade his testimony in favor of the
potential plaintiff, to magnify uncertainties, and thus to deprive the finder
of fact of candid, objective, and undistorted evidence." Id. Rather than
subject witnesses to potential liability for their statements, "the truth-
finding process is better served if the witness's testimony is submitted to
the crucible of the judicial process so that the factfinder may consider it,
after cross-examination, together with the other evidence in the case to
determine where the truth lies." Id. at 333-34 (internal quotation
omitted); see also Imbler v. Pachtman, 424 U.S. 409, 439 (1976) (White, J.,
concurring) (stating that to find where the truth lies, a witness "must be
permitted to testify without fear of being sued if his testimony is
disbelieved"). The common law's protection for witnesses is therefore "a
tradition ... well grounded in history and reason." Briscoe, 460 U.S. at
334.
The looming threat of liability
We next consider whether harassment or intimidation by
threat of personal liability may interfere with a party-retained expert's
duties. As to experts appointed by the court, we have concluded that
"[e]xposure to liability could deter their acceptance of court appointments
or color their recommendations." Duff v. Lewis, 114 Nev. 564, 569, 958
P.2d 82, 86 (1998) (internal quotation omitted). When we recognized
immunity for court-appointed experts, we offered that our purpose was to
"preserve the . . . truthfulness of critical judicial participants without
subjecting them to the fear and apprehension that may result from a
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threat of personal liability." Id. at 568-69, 958 P.2d at 85. Our decision to
extend absolute immunity, then, removed the possibility that court-
appointed experts would become a "lightning rod for harassing litigation."
Id. at 569, 958 P.2d at 86 (internal quotation omitted).
After considering the threat of liability posed to court-
appointed experts together with the threat faced by party-retained
experts, we conclude that the threat faced by party-retained experts is as
great as, or greater than, the threat to court-appointed experts, for whom
we have previously recognized absolute immunity See, e.g., id. at 571,
958 P.2d at 87 (recognizing immunity for a court-appointed psychologist
making a child custody recommendation). Both classes of experts,
notwithstanding source of hire, risk exposure to lawsuits when providing
expert opinions as participants in contentious judicial proceedings. See
Butz, 438 U.S. at 512 (explaining that devoid of absolute immunity,
judicial participants risk exposure to liability). Court-appointed experts,
however, are afforded the cloak of neutrality associated with their
appointments. See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting that
court-appointed experts' purpose is to act in an objective and independent
manner). In contrast, party-retained experts, like the often imposed label
"hired gun" denotes, are strongly associated with the hiring party. And as
a consequence of their relationship with the hiring party, the hired gun
will likely share in the threat of liability arising from the losing party's
animus. As the Butz Court explained: "[Clontroversies sufficiently intense
to erupt in litigation are not easily capped by a judicial decree. The loser
in one forum will frequently seek another, charging the participants in the
first with [unlawful] animus." 438 U.S. at 512. Accordingly, to grant
absolute immunity to court-appointed experts, who might avoid a losing
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party's animus by demonstrating objectivity, but to refuse it to party-
retained experts, who likely face greater animus by association, would be
to expose party-retained experts as a "lightning rod for harassing
litigation." Duff, 114 Nev. at 569, 958 P.2d at 86 (quoting Lavit v.
Superior Court, 839 P.2d 1141, 1144 (Ariz. Ct. App. 1992)).
We further conclude that the looming threat of liability would
interfere with party-retained experts' duties. The potential for liability
could encumber access to experts in two ways. First, party-retained
experts would be discouraged from accepting retainers. See id. at 570, 958
P.2d at 86 (noting that exposure to liability could deter court-appointed
experts from accepting appointments). Second, experts would be forced to
carry insurance or set retainers exorbitantly high to warrant the risk of
taking the stand, putting their price tag out of reach for many parties.
The Washington Supreme Court explained- "[I]mposing civil liability on
expert witnesses would discourage anyone who is not a full-time
professional expert witness from testifying. Only professional witnesses
will be in a position to carry insurance to guard against such liability."
Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 776 P.2d 666, 670 (Wash.
1989). Even if a party is able to retain an expert who dares to risk
collateral suit by taking the stand, and is additionally able to afford the
expert's price tag, the retained expert may dilute or distort disagreeable
conclusions to reduce the risk of liability. See Briscoe, 460 U.S. at 332(noting that the threat of liability would cause witnesses to distort candid
opinions). Thus, we conclude that to permit collateral actions against
party-retained experts based on statements made during judicial
proceedings would be to discourage candid expert opinions and to suppress
access. See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting that exposure of
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court-appointed experts to suit would likely cause a chilling effect on
acceptance of court appointments). And in so doing, we will have stifled
the ascertainment of truth, a result we seek to avoid. See Briscoe, 460
U.S. at 332 (noting that the path to truth is obstructed by witness's self-
censoring).
Procedural safeguards as remedies
As to the final consideration, whether remedies and
safeguards other than civil liability are sufficient to hold party-retained
experts accountable for their conduct, we conclude that they are. In Duff,
we recognized the availability of cross-examination, change of venue,
imposition of sanctions, and appellate review as adequate safeguards. 114
Nev. at 571, 958 P.2d at 87. Other jurisdictions have similarly recognized
the adequacy of procedural safeguards built into the judicial system. See
Lythgoe v. Guinn, 884 P.2d 1085, 1089 (Alaska 1994) (recognizing that
change of venue and appellate review are adequate procedural safeguards
to hold court-appointed experts accountable for negligence); LaLonde v.
Eissner, 539 N.E.2d 538, 542 (Mass. 1989) (observing as adequate the
availability of cross-examination, appellate review, and a request for
modification). The United States Supreme Court has additionally
acknowledged the check on unpersuasive evidence provided by the
impartial trier of facts as a procedural safeguard. See Butz, 438 U.S. at
517 ("Evidence which is false or unpersuasive should be rejected upon
analysis by an impartial trier of fact.").
Here, Vivian was at liberty to avail herself of any number of
remedies. For instance, she might have cross-examined Dr. Roitman to
establish the negligent method from which his diagnosis and prognosis
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were derived. We note, however, that the extent to which Vivian actually
took advantage of available remedies is unclear from the record.° Even so,
our determination is not contingent upon a factual finding that Vivian
successfully utilized the remedies at her disposal. Thus, we satisfy the
final query of the functional approach by simply noting the existence of
these safeguards See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting the
existence of procedural remedies, but not questioning whether the
claimant actually availed himself); see also Ducharm, 118 Nev. at 616, 55
P.3d at 425 (noting that the third inquiry is "whether procedural
safeguards exist" (emphasis added)).
Absolute immunity under Nevada law
Despite our conclusions, derived from the United States
Supreme Court's functional approach and grounded in common law,
Vivian argues that Nevada has not, and should not now, extend the
defense of absolute immunity beyond defamation claims. We note that the
cases of Duff and Foster negate Vivian's assertion. In Duff, we applied
absolute immunity to a court-appointed psychologist accused of negligence
in making a child custody recommendation amidst allegations of child
abuse. 114 Nev. at 571, 958 P.2d at 87. Similarly, in Foster v. Washoe
County, we granted absolute immunity to court-appointed special
advocates sued for negligent investigation of child abuse. 114 Nev. 936,
943, 964 P.2d 788, 793 (1998). These applications of absolute immunity to
claims for negligence demonstrate that we have not limited the doctrine's
5 The district court questioned Vivian's failure to exclude Dr.
Roitman as an expert witness, to impeach his testimony, or to seek
sanctions, but this discussion failed to make the record more clear.
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application to claims for defamation. 6 This court has not in fact made an
issue of the type of claim brought when considering the availability of an
absolute immunity defense, and we do not at present find good reason to
depart from that convention.
An unobstructed path to truth
Vivian additionally argues that because expert witnesses are
procured to testify to the benefit of a hiring party, the goal of ensuring
that the path to truth is unobstructed is not advanced by immunizing
experts from negligence. She argues that the immunity that applies to a
court-appointed expert, who is a neutral expert appointed by the court to
assist the trier of fact, should not be afforded to a party-retained expert,
who is a partisan witness advocating a position for a party. We disagree.
Experts may be sought after and procured subject to the understanding
that they will provide statements in support of a party's particular
position. However, under the law, an expert opinion is not admitted to
assist one party or the other; rather, it is admitted to assist the trier of
6 The common-law and United States Supreme Court jurisprudence
indicate that absolute immunity protects witness statements made during
judicial proceedings from tort liability in general and do not limit absolute
immunity's application to defamation claims. See Briscoe, 460 U.S. at 335("[T]he common law provided absolute immunity from subsequent
damages liability for all persons—governmental or otherwise—who were
integral parts of the judicial process." (emphasis added)). We note,
however, that our application of absolute immunity has limitations. See
Alioto v. City of Shively, 835 F.2d 1173, 1174 n.1 (6th Cir. 1987) ("[T]he
doctrine of witness immunity does not shield from liability alleged
conspiracies to falsify nontestimonial evidence."). Our adoption of the
doctrine does not protect an expert's fraudulent acts.
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fact by providing specialized knowledge. NRS 50.275; 7 see also Panitz v.
Behrend, 632 A.2d 562, 565 (Pa. 1993) ("The primary purpose of expert
testimony is not to assist one party or another in winning the case but to
assist the trier of the facts in understanding complicated matters."). Once
testimony is admitted, it is for the trier of fact to weigh the credibility of
the expert's opinion and for additional safeguards to advance truth-
finding. See Briscoe, 460 U.S. at 333-34 (noting that the fact-finder
determines where the truth lies). It is in this light we conclude that the
path to truth is best paved by immunizing expert witnesses, court-
appointed or party-retained, from tort liability.
Accordingly, even if the factual allegations contained in
Vivian's complaint were true, as a matter of law, Dr. Roitman's defense of
absolute immunity precludes her claim, and the district court properly
dismissed each of her causes of action. 8
7 NRS 50.275 provides: "If scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by special
knowledge, skill, experience, training or education may testify to matters
within the scope of such knowledge."
8 Dr.Rottman also contends that there was no doctor-patient
relationship, and thus, he owed no duty of care to Vivian. We conclude
that our holding as to absolute immunity is dispositive, and we therefore
need not address this issue.
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Based on the foregoing, we affirm the district court's order of
dismissal.
We concur:
, C. J.
Hardesty
Parraguirre
J.
Cherry
J.
J.
Gibbons
J.
Pickering
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