Harrison v. Roitman

• Decision Date: 17 December 2015
• Docket Number: No. 64569.,64569.
• Citation: 362 P.3d 1138
• Parties: Vivian Marie Lee HARRISON, Appellant, v. Norton A. ROITMAN., M.D., Respondent.
• Court: Nevada Supreme Court

362 P.3d 1138

Vivian Marie Lee HARRISON, Appellant,

v.Norton A. ROITMAN., M.D., Respondent.

No. 64569.

Supreme Court of Nevada.

Dec. 17, 2015.

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 absolute immunity from suits for damages arising from statements made in the course of judicial proceedings.

FACTS AND PROCEDURAL HISTORY

This action arose from a divorce proceeding to which Vivian Harrison (Vivian) and Kirk Harrison (Kirk) were parties. During the divorce proceeding, Kirk hired psychiatrist Norton Roitman, M.D., to conduct a psychiatric analysis of his then-wife, Vivian. Despite never examining or meeting Vivian, Dr. Roitman prepared and submitted to the court a written report diagnosing Vivian with a personality disorder and concluding that her prognosis was poor.

Consequently, Vivian filed a complaint against Dr. Roitman, alleging that the statements made in his report constituted medical malpractice, intentional infliction of emotional distress, negligent infliction of emotional distress, and civil conspiracy. According to Vivian, Dr. Roitman's statements were founded solely on information obtained from Kirk, and his diagnosis, given without meeting or examining her, fell below the standard of care for a psychiatrist.

Dr. Roitman subsequently filed an NRCP 12(b)(5) motion to dismiss, which was granted by the district court. The district court concluded that, as a witness preparing an expert report in connection with the matter in controversy, Dr. Roitman was absolutely immune from liability for each of Vivian's causes of action. Vivian appealed.

DISCUSSION

An order granting a motion to dismiss pursuant to NRCP 12(b)(5) is subject to a rigorous review. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227–28, 181 P.3d 670, 672 (2008). This court recognizes all factual allegations in the complaint as true and draws all 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 serves.’ "

Rolon v. Henneman, 517 F.3d 140, 145 (2d Cir.2008) (quoting Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) ); see also Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 75 L.Ed.2d 96 (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, 103 S.Ct. 1108 (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, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (applying the functional approach to determine whether qualified or absolute immunity applied to state actors accused of malicious prosecution).¹ 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 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 process.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, 98 S.Ct. 2894, 57 L.Ed.2d 895 (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, 98 S.Ct. 2894 (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 (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, 98 S.Ct. 2894 (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, "[t]he 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, 103 S.Ct. 1108⁴ (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; Hen derson 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, 103 S.Ct. 1108 (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, 103 S.Ct. 1108. First, a witness may be reluctant to present 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, "[a] 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, 103 S.Ct. 1108 (internal quotation omitted); see also Imbler v. Pachtman, 424 U.S. 409, 439, 96 S.Ct. 984, 47 L.Ed.2d 128 (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, 103 S.Ct. 1108.

The looming threat of liability

We next...