Day v. Johns Hopkins Health Sys. Corp.

• Decision Date: 26 October 2018
• Docket Number: No. 17-2120,17-2120
• Citation: 907 F.3d 766
• Parties: Michael S. DAY, Jr., As Personal Representative and Administrator of the Estate of Michael S. Day, Sr. and on behalf of all others similarly situated; Christi Ann Jordan Jarrett, As Personal Representative and Administrator of the Estate of Junior McCoy Barr and on behalf of all others similarly situated, Plaintiffs – Appellants, v. JOHNS HOPKINS HEALTH SYSTEM CORPORATION, d/b/a The Johns Hopkins Hospital; The Johns Hopkins Hospital, Inc., d/b/a The Johns Hopkins Hospital; Johns Hopkins Imaging, LLC ; The Johns Hopkins University, d/b/a Johns Hopkins Hospital; Paul Wheeler, MD, Defendants – Appellees. National Black Lung Association, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

907 F.3d 766

Michael S. DAY, Jr., As Personal Representative and Administrator of the Estate of Michael S. Day, Sr. and on behalf of all others similarly situated; Christi Ann Jordan Jarrett, As Personal Representative and Administrator of the Estate of Junior McCoy Barr and on behalf of all others similarly situated, Plaintiffs – Appellants,

v.JOHNS HOPKINS HEALTH SYSTEM CORPORATION, d/b/a The Johns Hopkins Hospital; The Johns Hopkins Hospital, Inc., d/b/a The Johns Hopkins Hospital; Johns Hopkins Imaging, LLC ; The Johns Hopkins University, d/b/a Johns Hopkins Hospital; Paul Wheeler, MD, Defendants – Appellees.

National Black Lung Association, Amicus Supporting Appellant.

No. 17-2120

United States Court of Appeals, Fourth Circuit.

Argued: September 26, 2018

Decided: October 26, 2018

ARGUED: Jonathan B. Nace, NIDEL & NACE, PLLC, Washington, D.C., for Appellants. James David Mathias, DLA PIPER LLP (US), Baltimore, Maryland, for Appellees. ON BRIEF: Christopher T. Nidel, NIDEL & NACE, PLLC, Washington, D.C., for Appellants. Andrew Jay Graham, Amy E. Askew, Justin A. Redd, KRAMON & GRAHAM PA, Baltimore, Maryland, for Appellee Paul Wheeler, M.D. Robert J. Mathias, Benjamin D. Schuman, DLA PIPER LLP (US), Baltimore, Maryland, for Appellees The John Hopkins Health System Corporation, The Johns Hopkins Hospital, Inc., Johns Hopkins Imaging, LLC, and The Johns Hopkins University. Stephen A. Sanders, APPALACHIAN CITIZENS’ LAW CENTER, Whitesburg, Kentucky, for Amicus Curiae.

Before WILKINSON, KING, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Thacker joined. Judge King wrote a dissenting opinion.

WILKINSON, Circuit Judge:

Plaintiffs brought suit against Dr. Paul Wheeler and Johns Hopkins Health System et al. for Wheeler’s actions as an expert witness in administrative hearings for the Federal Black Lung Program. This 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 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. For the reasons that follow, we affirm.

I.

Congress enacted the Black Lung

Benefits Act (BLBA) to compensate coal miners afflicted with pneumoconiosis, commonly known as black lung disease. Pub. L. No. 91-173 (1969) (codified at 30 U.S.C. § 901 et seq. (2012) ). A coal miner must demonstrate "total disability or death due to pneumoconiosis" in order to obtain benefits. 20 C.F.R. pt. 718. See Westmoreland Coal Co., Inc. v. Cochran , 718 F.3d 319, 320 (4th Cir. 2013). This disability must arise "at least in part out of coal mine employment." 20 C.F.R. § 718.203. If a miner is deemed eligible for benefits, "the mine operator that employed the disabled miner is liable for payment of those benefits." RB&F Coal, Inc. v. Mullins , 842 F.3d 279, 281 (4th Cir. 2016). When a miner has worked for multiple coal companies, "the Secretary of Labor [may] promulgate regulations to establish standards for apportioning liability among operators." Id. To determine eligibility, the Act combines features of expert administrative governance with the adversarial means of truth-seeking that are familiar to courts of law. See Sea "B" Mining Co. v. Addison , 831 F.3d 244, 248 (4th Cir. 2016) ("The Act creates an adversarial administrative procedure.")

The procedural path of the program is as follows. First, a district director from the Department of Labor completes a preliminary analysis of a miner’s claim. 20 C.F.R. § 725.401. If the miner is not satisfied with this determination, he or she is next able to challenge the director’s decision before an Administrative Law Judge (ALJ). The coal company that will ultimately be liable if the miner is successful is invited to contest the claim before the ALJ. Id. § 725.407. These proceedings between the miner and the company borrow heavily from judicial process. The miner and coal company are situated as adversaries. Each party can present evidence, offer witnesses, cross-examine adverse experts, and brief its case. Id. §§ 725.414; 725.455(d); 725.457(a). For its part, the ALJ possesses such judicial powers as the authority to administer oaths, issue subpoenas, and direct discovery proceedings, among other things. Id. §§ 725.351; 725.455(b). After the hearing, the ALJ must set forth a decision and order containing "a statement of the basis for the order, findings of fact, [and] conclusions of law." Id. § 725.477. The decision of the ALJ can be appealed to the agency’s Benefits Review Board, id. § 725.481; while decisions of the Board can in turn be appealed to the appropriate United States Court of Appeals. Id. § 725.482.

Appellants are the survivors of two coal miners who sought benefits under the BLBA, Michael Day and Junior Barr. All of the claims in this case stem from actions taken by Dr. Wheeler and his colleagues as part of the agency’s adversary process. Day’s proceedings began in 2004, while Barr filed for benefits four times between 1981 and 2010. 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 both Day and Barr’s hearings, concluding that neither suffered from black lung disease

.

This appeal comes to us on a motion to dismiss for failure to state a claim. Fed. R. Civ. P. 12(b)(6). We therefore "accept as true all well-pled facts in the complaint." SD3, LLC v. Black & Decker (U.S.) Inc. , 801 F.3d 412, 422 (4th Cir. 2015). According to the appellants, Wheeler’s expert opinion was biased toward industry. Specifically, they allege 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. Appellants further allege that he misled the tribunal and the miners as to which standards he was applying. Appellants acknowledge that they were afforded an opportunity to present contrary evidence and did in fact submit competing medical opinions.

Appellants contend, however, 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. According to the CPI report, which is the foundation for the complaint in this case, 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. As asserted by CPI, Wheeler reviewed more than 1,500 cases and never once concluded that a claimant suffered from a severe case of black lung. See Chris Hamby et al., Ctr. for Pub. Integrity, Breathless and Burdened: Part 2 (Oct. 30, 2013).

The Department of Labor acted following the CPI report’s publication. In 2014, the agency instructed its staff not to credit any evidence based on Dr. Wheeler’s expert opinion in the absence of persuasive evidence challenging CPI’s conclusions. DOL also encouraged coal miners who had been adversely affected by his testimony to refile for benefits. See U.S. Dep’t of Labor, Office of Workers’ Compensation Programs, BLBA Bulletin, No. 14-09 (June 2, 2014). Both Day and Barr were awarded posthumous benefits after the report was published. The survivors of both men allege that these benefits are less than would have been awarded if their claims had not been denied on the basis of Dr. Wheeler’s testimony. This civil suit followed.

In their complaint, plaintiffs raised a federal RICO claim and state law claims for fraud, tortious interference with economic interests, negligent misrepresentation, and unjust enrichment. The district court dismissed each of their claims on the same ground—the Witness Litigation Privilege. In the view of the district judge, the privilege shielded the defendants from civil liability for their actions as expert witnesses during BLBA proceedings.

II.

Our law affords absolute immunity to those persons who aid the truth-seeking mission of the judicial system. This protection extends to judges, prosecutors and witnesses. See Pierson v. Ray , 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Imbler v. Pachtman , 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ; Briscoe v. LaHue , 460 U.S. 325, 330-34, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Immunity for witnesses–commonly known as the Witness Litigation Privilege–is a longstanding and necessary part of the common law’s approach to adversarial adjudication. In fact, "the immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law." See Briscoe , 460 U.S. at 330-31, 103 S.Ct. 1108. 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 vital protection afforded all participants in litigation is unwavering. It is a bedrock of our law today just as it was centuries ago. See Rehberg v. Paulk , 566 U.S. 356, 363, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012) ; Bradley v. Fisher , 80 U.S. 13 Wall. 335, 346-47, 20 L.Ed. 646 (1871).

The Witness Litigation Privilege is a broad one. It applies to those who come forward of their own volition as well as those who are compelled, see Briscoe , 460 U.S. at 333, 103 S.Ct. 1108 ; to those who provide factual testimony as well as those who provide opinions, see Bruce v. Byrne-Stevens & Assoc. Eng’rs , 113 Wash.2d 123, 776 P.2d 666,...