Giffin v. Summerlin

• Decision Date: 20 December 1995
• Docket Number: No. 94-2100,94-2100
• Parties: William M. GIFFIN, Plaintiff-Appellant, v. Jack SUMMERLIN, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1227

78 F.3d 1227

William M. GIFFIN, Plaintiff-Appellant, v. Jack SUMMERLIN, M.D., Defendant-Appellee.

No. 94-2100.

United States Court of Appeals, Seventh Circuit.

Submitted Dec. 20, 1995 ^*.

Decided March 15, 1996.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. 93 C 6; Sarah Evans Barker, Chief Judge.

William M. Giffin, (submitted), Springfield, IL, pro se.

David S. Allen, Todd J. Kaiser, Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, for Jack Summerlin, M.D.

Before CUMMINGS, KANNE and ROVNER, Circuit Judges.

PER CURIAM.

In this diversity action governed by Indiana law, William M. Giffin sued his treating physician Dr. Jack Summerlin for giving unfavorable deposition testimony in a malpractice lawsuit that Giffin brought against a previous treating physician. Giffin asserted that Dr. Summerlin owed him a duty to refrain from assisting his adversary in the malpractice litigation, and that Dr. Summerlin's breach of that duty gave rise to a cause of action for a violation of the confidential relationship between physician and patient. The district court granted summary judgment in favor of Dr. Summerlin. We hold that Dr. Summerlin is shielded from civil liability for his testimony under the doctrine of witness immunity, and we affirm.

BACKGROUND

This case arose out of a medical malpractice action filed by Giffin following plastic surgery he underwent in 1981 at Presbyterian University Hospital in Pittsburgh, Pennsylvania to correct a snarl on the left side of his face. The surgery, which was performed by Dr. J.W. Futrell, left Giffin facially disfigured by completely paralyzing the left center portion of his face. Giffin then saw Dr. Summerlin, a reconstructive surgeon in Indianapolis, Indiana, who performed five operations between 1982 and 1984 that improved Giffin's appearance and facial condition.

In November 1983, Giffin's attorney wrote Dr. Summerlin, asking him to respond to a set of five questions concerning the merit of a malpractice action against Dr. Futrell that Giffin was contemplating. Dr. Summerlin completed the questionnaire and promptly returned it to Giffin's attorney. Dr. Summerlin's In spite of Dr. Summerlin's views, Giffin brought a malpractice lawsuit in Pennsylvania state court in December 1983 against Dr. Futrell and Presbyterian University Hospital ("Pennsylvania litigation"). The case lingered in the state court for several years. In August 1990, counsel for Dr. Futrell sent Dr. Summerlin a request for any medical records relating to Giffin, and enclosed a medical release authorization signed by Giffin. ² Pursuant to that authorization, Dr. Summerlin furnished Dr. Futrell's attorney with the November 1983 letter from Giffin's counsel and his responses to the questionnaire.

responses reflected his belief that Dr. Futrell complied with the standard of care in treating Giffin. ¹

On June 5, 1991, shortly before the Pennsylvania litigation was scheduled to go to trial, Dr. Summerlin was deposed in Indianapolis by counsel for both Giffin and Dr. Futrell. According to Giffin, Dr. Summerlin agreed before the depositions to testify only about the surgeries he had performed on Giffin and not about any possible negligence or malpractice on the part of Dr. Futrell.

Dr. Summerlin did not limit the scope of his deposition testimony, however. At the first deposition, which was taken by Giffin's attorney, Dr. Summerlin testified on cross-examination that the procedure used by Dr. Futrell to treat Giffin's disfiguring snarl was an accepted method and had been performed within the standard of care. (R. 17, Ex. E at 31, 49.) At the second deposition, conducted by Dr. Futrell's counsel in the presence of Giffin and Giffin's attorney, Dr. Summerlin testified that he believed Dr. Futrell's operation was "an appropriate approach for the problem that existed" and that Dr. Futrell "performed with the skills that you would usually allow for that type [of] surgery." (R. 17, Ex. F at 18, 21.) At no time did Giffin's counsel object to any of Dr. Summerlin's testimony on the basis of the patient-physician privilege.

The parties proceeded with jury selection on January 7, 1991, and then initiated settlement negotiations. In April 1991, Giffin agreed to accept $21,000 as a settlement in exchange for his release of all claims arising out of the Pennsylvania litigation.

Giffin, proceeding pro se, filed this present action in January 1993. Giffin alleged that Dr. Summerlin breached the physician-patient privilege and the confidential relationship between physician and patient by speaking with Dr. Futrell's counsel outside the presence of Giffin's counsel and by testifying at his depositions that it was his opinion that Dr. Futrell was not negligent. Specifically, Giffin alleged that Dr. Summerlin provided "extra judicial interviews" to Dr. Futrell's attorney; gave false testimony in support of Dr. Futrell; testified as an expert witness for Dr. Futrell contrary to Giffin's interests; breached his fiduciary duty to Giffin; provided Dr. Futrell's attorney with work product of Giffin's own counsel; misled Giffin and Giffin's attorney about the nature of his testimony; and showed loyalty to Dr. Futrell rather than Giffin. As a direct and proximate result of these acts, Giffin alleged, the Pennsylvania litigation was "rendered winless" and he was "compelled" to settle for $21,000. Giffin's complaint also included one count for breach of implied contract and one count for breach of express contract. Giffin based his claims exclusively upon Dr. Summerlin's Dr. Summerlin moved for summary judgment, which the district court granted in February 1994. ³ The court held that Giffin had waived the physician-patient privilege when he filed his Pennsylvania action. The court also found that the alleged contract was unenforceable, if one even existed, because it violated a public policy of favoring full and true testimony.

reports and deposition testimony provided in connection with the Pennsylvania litigation.

In April 1994, the court denied Giffin's motion for reconsideration.

DISCUSSION

As a threshold matter, we consider whether Dr. Summerlin is entitled to absolute immunity from civil liability for his deposition testimony as a witness in the Pennsylvania litigation. The district court did not address this issue in its order granting summary judgment, ⁴ and on appeal Dr. Summerlin renews his contention that he is immune from all civil liability regarding his deposition testimony. We of course may affirm the judgment of the district court on any ground supported by the record. Taylor v. Canteen Corp., 69 F.3d 773, 784 (7th Cir.1995).

Whether the deposition testimony of a witness renders that witness absolutely immune from civil suit is a question of first impression under Indiana law, which the parties agree is controlling here. ⁵ As a federal court sitting in diversity, we must best estimate how the Indiana Supreme Court would rule as to its law. See Shirley v. Russell, 69 F.3d 839, 843 (7th Cir.1995).

Indiana courts have long afforded witnesses absolute immunity from civil suit for their testimony in judicial proceedings. See Hutchinson v. Lewis, 75 Ind. 55, 60-61 (1881) ("All statements of a witness, as a general rule, are absolutely privileged."); Hamed v. Pfeifer, 647 N.E.2d 669, 672 (Ind.Ct.App.1995) (citing Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)); Hill v. Beghin, 644 N.E.2d 893, 897 (Ind.Ct.App.1994) (medical opinion in worker's compensation proceeding); Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind., 452 N.E.2d 989, 997 (Ind.Ct.App.1983) (defamatory allegations contained in pleadings); Rhiver v. Rietman, 148 Ind.App. 266, 265 N.E.2d 245, 248 (1970) (medical opinion in mental illness commitment proceeding). Public policy requires that " 'witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury.' " Rhiver, 265 N.E.2d at 248 (quoting Baldwin v. Hutchison, 8 Ind.App. 454, 35 N.E. 711, 712 (1893)). The purpose of witness immunity is to ensure that the judicial system functions unimpeded by fear on the part of its participants that they may be sued for damages for their role in the proceedings. See Briggs, 452 N.E.2d at 997.

The policy considerations underlying witness immunity for testimony in open court apply with equal force to other forms of testimony such as depositions and affidavits. Kahn v. Burman, 673 F.Supp. 210, 212 (E.D.Mich.1987), aff'd. without opinion, 878 F.2d 1436 (6th Cir.1989); Collins v. Walden, 613 F.Supp. 1306, 1314 (N.D.Ga.1985); aff'd without opinion, 784 F.2d 402 (11th Cir.1986); Moore v. Conliffe, 7 Cal.4th 634, 29 Cal.Rptr.2d 152, 156-57, 871 P.2d 204, 208-09 (1994); Stolte v. Blackstone, 213 Neb. 113, 328 N.W.2d 462, 466 (1982); Darragh v. Superior Court in and for County of Maricopa, 183 Ariz. 79, 900 P.2d 1215, 1217-18 (1995). The threat of a lawsuit for damages can have the same intimidating effect on a witness who testifies by deposition as one who testifies in court. Testimony by deposition is an important part of the judicial process and merits the same protection as in-court testimony.

The only authority Giffin cited to the district court to oppose Dr. Summerlin's request for witness immunity was the dissenting opinion in Moses v. McWilliams, 379 Pa.Super. 150, 549 A.2d 950 (1988) (en banc), appeal denied, 521 Pa. 630, 631, 558 A.2d 532 (1989). In Moses, plaintiff's treating physician disclosed information about plaintiff's medical condition to plaintiff's adversary in a malpractice action, even though plaintiff had not consented to these disclosures. Plaintiff's physician also testified at trial as a fact witness. Plaintiff then sued her physician in tort, claiming that his unauthorized communications with her adversary in the malpractice litigation were...