Macgregor v. Rutberg

• Decision Date: 27 February 2007
• Docket Number: No. 06-2829.,06-2829.
• Citation: 478 F.3d 790
• Parties: Margaret MacGREGOR, Plaintiff-Appellant, v. L. David RUTBERG, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

478 F.3d 790

Margaret MacGREGOR, Plaintiff-Appellant, v. L. David RUTBERG, Defendant-Appellee.

No. 06-2829.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2007.

Decided February 27, 2007.

Scott T. Longman (argued), Brad E. Rago, Barnes & Thornburg, Chicago, IL, for Plaintiff-Appellant.

David A. Rolf (argued), Sorling Northrup Hanna Cullen & Cochran, Springfield, IL, for Defendant-Appellee.

Before POSNER, WOOD, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

The parties to this diversity suit governed by Illinois law are neurosurgeons. Rutberg testified as an expert witness for a patient of MacGregor's in a malpractice suit that the patient had brought against MacGregor in an Illinois state court. In the present case, MacGregor is suing Rutberg, complaining that his testimony in the malpractice suit was defamatory and a breach of contract. The district court dismissed MacGregor's suit for failure to state a claim, and she appeals.

MacGregor had performed an anterior cervical discectomy on the patient who later sued her for malpractice. That is an operation in which a herniated disk in the part of the spine that is at the back of the neck is removed through an incision made in the front. In the course of the operation the patient's esophagus was punctured. Her suit alleged that the puncture was due to the negligence of Dr. MacGregor. Dr. Rutberg testified by deposition that MacGregor had indeed failed to exercise due care and that the failure had been responsible for the puncture. He testified that she had placed the surgical retractors — instruments that hold the esophagus, trachea, arteries, and other soft tissue away from the incision to prevent their being damaged by the surgeon's knife — in the wrong position.

The state court granted summary judgment for MacGregor, paving the way for the present suit, in which she alleges — and in the procedural posture of the case we must assume the truth of her allegations — that Rutberg failed to disclose in his deposition that he was offering a medical opinion at variance with the consensus of neurosurgeons and failed even to review the depositions of MacGregor and of the patient, which would have confirmed that MacGregor had put the retractors in the right place. She claims that Rutberg defamed her by his testimony and in addition violated a rule of the professional association to which both of them belonged when he testified — a rule that she argues constituted a contract between Rutberg and her.

Illinois like other states recognizes an absolute privilege for statements in testimony or pleadings in a judicial proceeding. Ritchey v. Maksin, 71 Ill.2d 470, 17 Ill.Dec. 662, 376 N.E.2d 991, 993 (Ill.1978); Spaids v. Barrett, 57 Ill. 289, 291 (1870); McNall v. Frus, 336 Ill.App.3d 904, 271 Ill.Dec. 20, 784 N.E.2d 238, 239-40 (2002); Jurgensen v. Haslinger, 295 Ill.App.3d 139, 229 Ill.Dec. 574, 692 N.E.2d 347, 349-50 (1998). What a witness testifies to cannot be made the basis of a suit against him, except a criminal prosecution for perjury or for a crime to which he confessed in the course of testifying. The privilege mainly protects against suits for defamation; however reckless or dishonest the testimony, the witness cannot be sued because of its defamatory content.

A number of states, including Illinois, see, e.g., Spaids v. Barrett, supra, 57 Ill. at 291; Starnes v. Int'l Harvester Co., 184 Ill.App.3d 199, 132 Ill.Dec. 566, 539 N.E.2d 1372, 1374 (1989); McGranahan v. Dahar, 119 N.H. 758, 408 A.2d 121, 129 (1979); see also Briscoe v. LaHue, 460 U.S. 325, 331 and n. 11, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), have carved an exception for cases in which the defamatory testimony is unarguably irrelevant to the case in which it was given — suppose that in the trial of an antitrust case a witness, wanting to take advantage of the privilege, blurted out: "And by the way, my ex-husband is a murderer, a thief, a deadbeat, and a purveyor of child pornography." See Macie v. Clark Equipment Co., 8 Ill. App.3d 613, 290 N.E.2d 912, 913-15 (1972); Parker v. Kirkland, 298 Ill.App. 340, 18 N.E.2d 709, 712-13 (1939); Burdette v. Argile, 94 Ill.App. 171, 175-77 (1901); Sherwood v. Powell, 61 Minn. 479, 63 N.W. 1103, 1104 (1895). MacGregor wants another exception — an exception for expert testimony.

Now it is true that the privilege is especially designed for the protection and encouragement of disinterested lay witnesses. Since they have no stake in the case and cannot be paid more than a nominal fee for testifying, they would be highly reluctant to testify if the threat of a defamation suit hung over their heads. See Murphy v. A.A. Mathews, 841 S.W.2d 671, 674 (1992); cf. McNall v. Frus, supra, 271 Ill.Dec. 20, 784 N.E.2d at 239. It would be cruel to force them by testifying to assume that risk. Expert witnesses, in contrast, could be paid to assume the risk. See Jurgensen v. Haslinger, supra, 229 Ill.Dec. 574, 692 N.E.2d at 349-50; Murphy v. A.A. Mathews, supra, 841 S.W.2d at 674. Nevertheless they are not excepted from the privilege, McNall v. Frus, supra, 271 Ill.Dec. 20, 784 N.E.2d at 239-40, and that is sensible. Litigation is costly enough without judges' making it more so by throwing open the door to defamation suits against expert witnesses. That would not only tend to turn one case into two or more cases (depending on the number of expert witnesses), but also drive up expert witnesses' fees; expert witnesses would demand as part of their fee for testifying compensation for assuming the risk of being sued because of what they testified to.

The pressure to allow such suits in order to keep expert testimony honest has actually diminished in recent years because of enhanced awareness of the potential abuses involved in such testimony. Courts do much more than they used to do to screen out expert testimony that does not satisfy reasonable standards of scientific accuracy. Fed.R.Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Wilson v. City of Chicago, 6 F.3d 1233, 1238-39 (7th Cir. 1993). The screening is imperfect. But it is a better check on the abuses than allowing every unsuccessful lawsuit to be turned into two or more lawsuits as the winner goes after the expert witnesses who testified unsuccessfully against him.

That a privilege is absolute does not define its scope; it merely protects the holder of the privilege from a suit based on deliberate or reckless misconduct ("malice," as the defamation cases say, cf. Matheny v. United States, 469 F.3d 1093, 1097 (7th Cir.2006)), as distinct from a suit based merely on negligence or mistake. E.g., Zych v. Tucker, 363 Ill.App.3d 831, 300 Ill.Dec. 561, 844 N.E.2d 1004, 1008 (2006); Murphy v. A.A. Mathews, supra, 841 S.W.2d at 675. We gave one example of a limitation on the scope of the privilege earlier. California has limited its scope further in cases in which a witness spills a trade secret or violates a confidentiality agreement. E.g., Wentland v. Wass, 126 Cal.App.4th 1484, 25 Cal.Rptr.3d 109, 113-16 (2005); ITT Telecom Products Corp. v. Dooley, 214 Cal.App.3d 307, 262 Cal.Rptr. 773, 779-81 (1989). Illinois has not followed suit, however, and perhaps wisely, since there is another, and generally effective, way of protecting trade secrets in litigation — requiring testimony that reveals a trade secret to be given at a hearing from which the public is excluded and the transcript of the testimony sealed.

Noting that the cases affirming the breadth of the privilege in Illinois come from the state's intermediate appellate court rather than from its supreme court, which has not been heard from on the question since Ritchey v. Maksin, supra, a quarter of a century ago, MacGregor asks us to predict that if seised of the issue the supreme court would carve out an exception either for all expert testimony or for testimony in breach of contract cases. (The plaintiff's contract claim is discussed below; we shall see that it doesn't depend on the scope of the privilege.) But we have explained in previous cases that a person who wants a novel ruling of state law should sue in state court rather than federal court. Doe v. City of Chicago, 360 F.3d 667, 672 (7th Cir.2004); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1234 (7th Cir.1993); Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1087-88 (7th Cir.1990); cf. In re C-T of Virginia, Inc., 958 F.2d 606, 611-12 (4th Cir.1992). Of course if she does that and the defendant removes the case to federal court we must try as best we can to determine whether the state supreme court would adopt the novel ruling. But this is not such a case. The plaintiff sued in federal court though there was nothing to stop her from suing in an Illinois state court. Had she done that, Rutberg could have removed the case to federal court, but it is not certain that he would have done so.

Moreover, the fact that the Supreme Court of Illinois has not weighed in on the scope of the witness privilege does not mean that that court is likely, should it ever do so, to reject the consensus of the intermediate appellate judges. On the contrary, its reticence suggests, if anything, contentment with that consensus.

At argument, MacGregor's lawyer proposed for the first time that we certify the issue of the scope of the privilege to the Supreme Court of Illinois. The proposal is unfortunate as well as belated, in suggesting rather an excessive taste for litigation on MacGregor's part. For just as her malpractice suit became two suits with the decision to go after the losing party's expert witness, we are invited to split the present suit in two, one piece retained in this court and the other sent to Illinois's supreme court. That might be unavoidable if MacGregor had been dragged into federal court against her will and if the validity of her state-law claim were profoundly unclear, but neither condition is satisfied.

We turn to the...