Immunity Holds for Discredited Expert Witness

Violating applicable standards, providing misleading testimony and exhibiting clear bias are insufficient grounds to erode the absolute immunity of expert witnesses from RICO and state law claims, even in administrative tribunals, the 4th U.S. Circuit Court of Appeals has affirmed in a 2-1 decision.

In Day v. Johns Hopkins Health System Corp., 4th Cir. 2018 (No. 17-2120), a class action suit was brought against Johns Hopkins and Dr. Paul Wheeler, the head of Johns Hopkins' radiology unit that read X-rays of coal miners seeking black lung benefits. The suit was brought by coal miners and their families after a joint investigation by ABC News and the Center for Public Integrity (CPI) was broadcast highlighting the the relationship between John Hopkins and coal mining companies.

Dr. Wheeler had served as a radiology expert witness for coal companies in over 1,500 claims made under the Federal Black Lung Program. In all of those cases, he never once found any significant disease. In a news interview, Dr. Wheeler defended his opinions, stating that he would never find black lung disease by only reading an X-ray — he would have to first see a biopsy test, a test not required under the Black Lung Program. Dr. Wheeler also admitted to disregarding regulations on how to interpret X-rays to diagnose the disease. Subsequent biopsies and autopsies found significant black lung diseases in over 100 of the cases Dr. Wheeler reviewed.

The claims, made under the federal RICO statute and state laws, were dismissed by the district court based on what the court termed the “Witness Litigation Privilege”, which protects testifying expert witnesses from civil liability for their testimony.

The plaintiffs appealed.

The majority of the 4th Circuit agreed with district court, citing in their opinion the US Supreme Court in Briscoe: “[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 majority noted that the appellants had admitted that they had an opportunity to present their own experts contradicting Dr. Wheeler.

The appellants argued, however, that they were unaware of “Dr. Wheeler's systemic violations of international standards” until the Center for Public Integrity (CPI) published its report on the Johns Hopkins radiology unit.

The 4th Circuit acknowledged that, after the CPI report was published, the US Department of Labor instructed its staff not to credit Dr. Wheeler's expert opinions and encouraged coal miners who had been subject to Dr. Wheeler's opinions to refile claims for benefits.

While the 4th Circuit admitted that there may be questions as to the scope of the Witness Litigation Privilege, the Privilege “is foundational to any system of adversary justice.” The Privilege “protects some admittedly bad actors in the hopes of achieving a much larger good.”

The dissenting justice, Robert B. King, found the RICO allegations compelling and that 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.”

Justice King found that the majority had expanded the “so-called witness litigation privilege” unnecessarily. He concluded that the racketering scheme carried on by Johns Hopkins and Dr. Wheeler was “both sophisticated and complex.” The majority, he said, framed the RICO claim as seeking to “punish misleading statements” when the defendants “were actually engaged in a RICO scheme and conspiracy” intended to “deprive sick coal miners and their families of their statutory benefits.”

Justice King found that the majority's reliance on Briscoe overlooked the boundaries the US Supreme Court had drawn in the case where it had emphasized that common-law action was inappropriate because the case of a question of civil liability for false testimony during a state court criminal trial.

Two years after the CPI report was published, Johns Hopkins shut down its black lung unit (which coal companies had paid more than a million dollars to for reading X-rays). Dr. Wheeler retired.

In December 2017, Johns Hopkins' board voted to divest its significant holdings in major coal producers.

The majority's opinion that the greater good of almost absolute privilege outweighs the appellants' rights seems a manufactured absurdity from some Jeremy Bentham quote, or something out of a sci-fi movie: “the needs of the many outweigh the needs of the few.” Illogical.