Patton v. Cox

• Decision Date: 07 January 2002
• Docket Number: No. 00-15537,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,00-15537
• Citation: 276 F.3d 493
• Parties: (9th Cir. 2002) MARK K. PATTON, M.D., A SINGLE MAN,, v. LYNN JACOB COX, WIFE, AND AS INDEPENDENT EXECUTRIX OF THE LAST WILL OF MICHAEL D. COX,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 493

276 F.3d 493 (9th Cir. 2002)

MARK K. PATTON, M.D., A SINGLE MAN, PLAINTIFF-APPELLANT, v. LYNN JACOB COX, WIFE, AND AS INDEPENDENT EXECUTRIX OF THE LAST WILL OF MICHAEL D. COX, DEFENDANT-APPELLEE.

No. 00-15537

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 15, 2001

Filed January 7, 2002

Counsel Charles E. Buri (argued), Friedl, Richter & Buri, P.A., for the appellant.

Foster Robberson (argued), Susan M. Freeman, W. Todd Coleman, Lewis & Roca, Llp, for the appellee.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Chief District Judge, Presiding D.C. No. CV-99-00471-SMM

Before: Harlington Wood, Jr.,^* Alex Kozinski, and Diarmuid F. O'Scannlain, Circuit Judges.

Opinion by Judge O'Scannlain; Dissent by Judge Wood, Jr.

O'SCANNLAIN, Circuit Judge

In this diversity action, we must decide whether a witness in a state quasi-judicial proceeding is immune from a breach of contract action arising out of his testimony.

I.

Dr. Mark K. Patton practices medicine in Arizona. He and his former wife, Shellie Trembath, divorced in 1994 and are embroiled in a bitter and protracted child-custody battle, which is taking place in a Utah state court. In December of 1996, Trembath asked the Utah court to order Dr. Patton to submit to a psychological evaluation by Dr. Cox, who practices psychology in Texas. The Utah court granted her request and issued the order. Dr. Cox evaluated Dr. Patton in Texas in January of 1997. Before the evaluation began, Dr. Patton asked Dr. Cox to keep the results of the evaluation confidential; the parties dispute whether Dr. Cox agreed to Dr. Patton's request. It also appears that before evaluating Dr. Patton, Dr. Cox had a therapeutic relationship with Trembath, her new husband, and Trembath's sister -Dr. Patton's former sister-in-law, the latter of whom alleged that Dr. Patton had engaged in improper sexual conduct with her. As a result, the Arizona Board of Medical Examiners ("BOMEX") filed a complaint, charging him with unprofessional conduct and unfitness to practice medicine.

The complaint against Dr. Patton was heard by an Administrative Law Judge in Phoenix in May of 1998. At the BOMEX hearing, Dr. Cox voluntarily testified as an expert witness on behalf of the State of Arizona. Both his testimony and his pretrial communications with the state Attorney General revealed the results of his examination of Dr. Patton -namely, he believed that Dr. Patton was a pedophile and a danger to children. Dr. Patton subsequently sued Dr. Cox for breach of contract, promissory estoppel, and infliction of severe emotional distress.

The district court found that absolute witness immunity precludes any liability arising from the testimony and pre-trial proceedings of a quasi-judicial hearing. Accordingly, it granted Dr. Cox's motion to dismiss for failure to state a claim upon which relief can be granted. Dr. Patton timely appealed.

II.

This is a diversity action under 28 U.S.C. §§ 1332. When a federal court sits in diversity, it must look to the forum state's choice of law rules to determine the controlling substantive law. See Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496 (1941). Because this suit was filed in the District Court of Arizona, we look to that state's choice of law rules. Arizona courts follow the Restatement (Second) of Conflict of Laws (hereinafter "Restatement") as a guide in choice of law questions. Lucero v Valdez, 884 P.2d 199, 201 (Ariz. Ct. App. 1994). The Restatement §§ 6 sets forth several relevant factors in determining which law to apply, including: (1) the needs of the interstate systems, (2) the relevant policies of the forum state, (3) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (4) the protection of justified expectations, (5) the basic policies underlying the particular field of law, (6) certainty, predictability, and uniformity of result, and (7) ease in the determination and application of the law to be applied.

A.

Because each state has a connection to the parties or the matter, Arizona, Texas, or Utah law could potentially apply. According to the Restatement, the objective is to apply the law of the state that has the "most significant relationship" with the parties and the dispute. See SYMEON C. SYMEONIDES, ET AL., Conflicts of Laws: American, Comparative, International (1998). A "significant relationship " includes not only the raw number of contacts a state has with a matter, but also the importance and depth of those contacts.

Utah's connection to this dispute is minimal. Neither petitioner nor respondent are domiciles of, or licensed to work in, Utah. Dr. Cox's evaluation of Dr. Patton and the testimony for which he seeks immunity took place elsewhere. However, the impetus behind the evaluation came from a Utah court charged with resolving a custody dispute between Dr. Patton and his former wife. The Utah court expressly ordered Dr. Patton to see Dr. Cox in order to determine his fitness to visit his children; thus, Dr. Cox evaluated Dr. Patton in contemplation of testifying in a Utah court. Further, Dr. Patton expected that any information gleaned from the evaluation would only be used in the Utah proceeding. Dr. Cox's testimony became unnecessary, however, and was never given in the Utah court.

Texas's connection to the litigation is stronger than Utah's. First, Dr. Cox is domiciled and licensed to practice psychology in Texas. Second, the evaluation took place in Houston at Dr. Cox's office. Finally, it appears that Dr. Cox's promise to Dr. Patton that he would not release the results of his evaluation in circumstances other than the Utah child custody proceeding occurred in Texas.

Arizona also has a significant relationship to the dispute. Dr. Patton is licensed to practice medicine in Arizona and has actively done so since 1996. The proceeding in which Dr. Cox gave the testimony for which he now seeks immunity took place in Arizona. Also, the impact of Dr. Cox's testimony was centered primarily in Arizona, as BOMEX placed Dr. Patton on probation for no fewer than five years, ordered him to undergo psychotherapy, and restricted his ability to treat young female patients.

B.

Using the Restatement's §§ 6 factors to guide our analysis, we conclude that Arizona law applies to this dispute. Because Utah never used the results of the evaluation it ordered, its connection to this dispute ended before the Arizona proceedings began. We reference the Utah order only to show the intended scope of disclosure of Dr. Cox's evaluation. While both Texas and Arizona claim one party who both lives and works in its state, it is Arizona that has the strongest interest in applying its laws governing the liability of witnesses who testify in its quasi-judicial proceedings.

Considering the relevant interests of both Texas and Arizona in the determination of a witness' immunity, most persuasive is the fact that this quasi-judicial proceeding and Dr. Cox's testimony took place in Arizona. While Texas has an interest in protecting its professionals who choose to give expert testimony, Arizona's interest is far greater in ensuring the proper public policy balance in its quasi-judicial proceedings among truth-finding, protecting privacy, and respecting prior agreements.

Furthermore, because the testimony and proceeding occurred in Arizona, the reasonable expectations of the parties would be that Arizona law would apply. While the actual agreement of limited disclosure between Dr. Patton and Dr. Cox arose in Texas, this appeal is not about whether that contract was formed and breached, but rather, even if it were, whether Dr. Cox nevertheless enjoys immunity for his testimony. As such, when he chose to be a witness in an Arizona proceeding, Dr. Cox could have reasonably expected that Arizona law would apply. So, too, would someone subject to BOMEX discipline proceedings, like Dr. Patton, expect Arizona law to govern any dispute arising from it.

Finally, Arizona has a strong interest in ensuring uniformity of witness immunity in its quasi-judicial proceedings. If a witness carried with him the witness immunity laws of the state in which he were domiciled, Arizona citizens' ability to pierce a witness' claim of immunity would vary depending upon the state in which that particular witness lived. By applying Arizona law, however, the state can ensure that all participants in its quasi-judicial proceedings enjoy uniform and predictable rules with respect to witness immunity.

For these reasons, we are persuaded that Arizona has the "most significant" relationship with the dispute and we apply Arizona law.

III.

Arizona courts have extended witness immunity to quasi-judicial proceedings and pre-trial communications. See Burns v. Davis, 993 P.2d 1119 (Ariz. Ct. App. 1999); Western Techs. Inc. v. Sverdrup & Parcel, Inc., 739 P.2d 1318, 1322 (Ariz. Ct. App. 1986). Dr. Patton seems to concede that witness immunity would protect Dr. Cox from a tort claim (e.g., defamation); however, he argues that the scope of immunity should not extend to breach of contract claims. Arizona courts have not apparently addressed the issue of whether witness immunity bars a claim for breach of contract against the witness. Therefore, we must predict how the Arizona Supreme Court would rule in this case.¹

A.

Courts have articulated the policies protected by granting witnesses immunity from suits arising out of their testimony: the free-flow of information in a truth-finding process, see Jurgensen v. Haslinger, 692 N.E.2d 347, 350 (Ill. App. Ct. 1998) (Absolute immunity "provides complete immunity from civil action, even though the statements are made with malice, because public policy favors the free and unhindered flow of information."), encouraging witnesses to come forward to testify, see Briscoe v. LaHue,...