Moore v. Conliffe
| Decision Date | 28 April 1994 |
| Docket Number | No. S031410,S031410 |
| Citation | 871 P.2d 204,7 Cal.4th 634,29 Cal.Rptr.2d 152 |
| Court | California Supreme Court |
| Parties | , 871 P.2d 204, 62 USLW 2689 Ophelia Y. MOORE et al., Plaintiffs and Appellants, v. Milton CONLIFFE, Defendant and Respondent. |
Von Till & Associates, Stephen F. Von Till, Fremont, Jerry Wilhelm, Santa Rosa, and Dan Grimmer, Fremont, for plaintiffs and appellants.
Gail K. Hillebrand, San Francisco, Brian W. Newcomb, Menlo Park, Pillsbury, Madison & Sutro, William I. Edlund, Walter A. Allan and Joseph A. Hearst, San Francisco, as amici curiae on behalf of plaintiffs and appellants.
Kennedy P. Richardson, Mark Palley, Oakland, Lillian F. Hamrick, Sonora, Craddick, Candland & Conti and Robert W. Lamson, Danville, for defendant and respondent.
Proskauer, Rose, Getz & Mendelsohn, Steven G. Drapkin, Gibson, Dunn & Crutcher, Richard Chernick, Thelen, Marrin, Johnson & Bridges, Curtis A. Cole, Julia C. Wo, Los Angeles, Heller, Ehrman, White & McAuliffe, Stephen V. Bomse, Peter S. Hecker, Laurel E. Fletcher, San Francisco, Horvitz & Levy, Barry R. Levy, David S. Ettinger, Richard L. Hasen, Encino, William M. Pfeiffer and Judith K. Herzberg, Los Angeles, as amici curiae on behalf of defendant and respondent.
In this case we must decide whether a witness who testifies at a deposition held in connection with a private, contractual arbitration proceeding is subject to being sued in a tort action on the basis of statements made in the course of such testimony, or instead, like any witness in a court proceeding, is immunized from tort liability by virtue of the "litigation privilege" embodied in Civil Code section 47, subdivision (b) (hereafter section 47(b)). 1 As we shall explain, in view of the purpose and history of the litigation privilege and the numerous California decisions interpreting and applying the relevant statutory provision, we conclude that statements made in the course of a private, contractual arbitration proceeding are protected by the litigation privilege.
The appeal in this case is from a judgment of dismissal entered after the sustaining of a general demurrer. Accordingly, in setting forth the relevant facts for purposes of our review, we are guided by the familiar rules applicable in this setting. (Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.)
Plaintiffs are the mother, siblings and estate of DeWanda Atkinson, who died in March 1984, at 16 years of age, from hepatitis. Plaintiffs contend that DeWanda contracted this disease as a side effect of a drug, Isoniazid (also referred to as INH), that was prescribed for her because of her exposure to tuberculosis, and that she had ingested on a daily basis during the several months preceding her death.
After DeWanda's death, plaintiffs instituted a wrongful death action in San Mateo County Superior Court against DeWanda's health plan and physicians (hereafter referred to collectively as Kaiser), asserting that Kaiser had been negligent in prescribing and monitoring DeWanda's tuberculosis medication and that such negligence was the cause of DeWanda's death. Early in 1985, the parties to the civil proceedings stipulated that the action was subject to mandatory arbitration under the contractual provisions of the applicable Kaiser medical and hospital service agreement, and also stipulated that the civil action should be stayed pending arbitration. In view of the stipulation, the superior court, in March 1985, entered an order staying further proceedings in the civil action pending completion of the arbitration.
Sometime thereafter, Kaiser retained, as a medical expert, Dr. Milton Conliffe, the defendant in the proceeding now before us, to provide medical information regarding DeWanda, including his opinion as to the cause of her death.
The arbitration hearing on plaintiffs' claim against Kaiser began in October 1989. In December 1989, during a break in the hearing, plaintiffs scheduled a deposition with Dr. Conliffe, requesting that he produce documents relating to his review of DeWanda's case, including articles or writings he had reviewed, consulted, prepared, referred to, or relied upon in his work on the case.
When he appeared for his deposition, Dr. Conliffe produced only his personal resume. In his testimony at the deposition, Dr. Conliffe stated it was his opinion that DeWanda's death had resulted from viral hepatitis, rather than nonviral hepatitis, and therefore that the use of Isoniazid did not contribute to her death. In response to questions at the deposition, Dr. Conliffe also testified he had reviewed the articles and literature submitted by plaintiffs, but denied recalling or being aware of any medical literature that attributed hepatitis to the use of Isoniazid. When asked specifically about his own contributions to publications, Dr. Conliffe stated only that he had contributed certain "epidemiological information" to an article on "toxicity."
The complaint does not allege that Dr. Conliffe testified at the arbitration hearing itself or that his deposition testimony was introduced at that hearing. The complaint does allege, however, that Kaiser's position at the arbitration hearing was consistent with Dr. Conliffe's deposition testimony, namely, that DeWanda's death was caused by a form of viral hepatitis and was not drug induced. At the conclusion of the arbitration proceeding in January 1990, a majority of the arbitrators found that, although Kaiser had been negligent in the care and treatment of DeWanda, plaintiffs had failed to prove that the cause of her death was Isoniazid-induced hepatitis. On that basis, the arbitrators ruled in favor of Kaiser.
Sometime after the arbitrators had rendered their decision, plaintiffs' attorney discovered that in September 1989, three months prior to Dr. Conliffe's deposition, an article had been published in a medical journal by another physician, reviewing a number of hepatitis deaths in California attributed to Isoniazid, and that Dr. Conliffe, himself, had contributed information concerning DeWanda's case to the author of the article, allegedly as an example of Isoniazid-induced death. As noted above, the complaint alleged Dr. Conliffe did not disclose the existence of this article in testifying at the deposition, and plaintiffs claimed the article demonstrated that Dr. Conliffe knowingly and intentionally provided false testimony at his deposition.
In May 1990, plaintiffs filed a petition in Alameda County Superior Court seeking to vacate the arbitration award. While that matter was pending, plaintiffs, in August 1990, filed the present separate tort action in Alameda County Superior Court. The two actions, along with the initial action filed by plaintiffs against Kaiser in 1984, were joined in a coordination proceeding (Cal.Rules of Court, rule 1501 et seq.) before the San Mateo County Superior Court. From the record before us, it appears that plaintiffs' petition to vacate the arbitration award has remained in abeyance pending resolution of the present matter.
In their initial complaint in the present tort action, plaintiffs, as a result of misconduct alleged to have occurred in the arbitration proceeding, sought to recover damages against Kaiser, Kaiser's attorneys in the arbitration action, and the neutral arbitrator who presided over the arbitration proceeding, but did not name Dr. Conliffe as a defendant. In October 1990, plaintiffs filed a first amended complaint in the action, setting forth a cause of action against Dr. Conliffe on a theory of "concealment and suppression of evidence." After Dr. Conliffe demurred to the first amended complaint, plaintiffs filed additional amendments to the complaint, adding causes of action against Dr. Conliffe for negligence, intentional and negligent misrepresentation, suppression of fact, civil conspiracy, breach of contract, and intentional infliction of emotional distress. Dr. Conliffe again demurred, asserting that his deposition testimony was privileged under section 47(b). Sustaining Dr. Conliffe's demurrer without leave to amend, the trial court dismissed the action against him with prejudice.
On appeal, the Court of Appeal reversed, concluding that the litigation privilege embodied in section 47(b) does not apply to a witness's testimony or to other statements made in the course of a private contractual arbitration proceeding, but only to testimony and statements made in a court proceeding. Accordingly, the Court of Appeal held that plaintiffs' action against Dr. Conliffe should be permitted to go forward to trial. Because of the importance of the issue, we granted review, limiting the issue to be argued before this court to the question "whether communications in connection with private arbitration proceedings are protected by the litigation privilege."
Under the current provisions of section 47(b), the Legislature has accorded an absolute privilege or immunity to statements made in a number of contexts: in any (1) legislative proceeding, (2) judicial proceeding, (3) other official proceeding authorized by law, or (4) proceeding authorized by law and reviewable by writ of mandate. 2 Although Dr. Conliffe argues that statements made in the course of a private, contractual arbitration proceeding properly can be viewed as falling within several of the subsections of section 47(b), he contends primarily that such statements come within the aegis of section 47(b)(2), which provides an absolute privilege to statements made in "any judicial proceeding"--the provision more commonly referred to as the "litigation privilege."
In Silberg v. Anderson (1990) 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365 (Silberg ), we had...
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