Wilson v. Bernet
| Decision Date | 18 November 2005 |
| Docket Number | No. 32578.,32578. |
| Court | West Virginia Supreme Court |
| Parties | George Butler WILSON, Plaintiff, v. William BERNET, Vanderbilt University, and Thomas Gillooly, Defendants. |
Syllabus by the Court
1. "The appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
2. An adverse expert witness enjoys civil immunity for his/her testimony and/or participation in judicial proceedings where such testimony and/or participation are relevant to said judicial proceedings.
3. No cause of action for tortious interference with parental or custodial relationship may be maintained against an adverse expert witness based upon his/her expert testimony and/or participation in a child custody and visitation proceeding.
Anthony F. Serreno, Hunt & Serreno, Edward ReBrook, III, Charleston, for the Plaintiff.
Michael M. Fisher, Holly G. DiCocco, Andrea N. Markins, Offutt, Fisher and Nord, Charleston, for the Defendants.
Justice STARCHER concurs and reserves the right to file a concurring opinion.
This case comes before the Court upon questions certified by the Circuit Court of Kanawha County concerning whether a cause of action for tortious interference with a parental or custodial relationship may be maintained against an adverse expert witness based upon his/her expert testimony and participation in a child custody and visitation proceeding1 and whether, if such a cause of action is proper, it must first be preceded by a motion made pursuant to Rule 60 of the West Virginia Rules of Civil Procedure.2 Upon a review of the parties' arguments, the pertinent authorities, and the record designated for our consideration, we answer the first certified question in the negative: no cause of action for tortious interference with parental or custodial relationship may be maintained against an adverse expert witness based upon his/her expert testimony and/or participation in a child custody and visitation proceeding. We further decline to answer the circuit court's remaining certified question insofar as our response to the first question renders the subsequent question moot.
The instant proceeding originated during the course of divorce proceedings between the plaintiff herein, George Butler Wilson, M.D. [hereinafter "Dr. Wilson"], and his then-wife Sharon Bicks Wilson [hereinafter "Ms. Bicks"] and the ensuing child custody and visitation dispute regarding the parties' minor child, G.B.W.3 During the custody proceedings, counsel for Ms. Bicks, Thomas Gillooly [hereinafter "Mr. Gillooly"], a defendant herein, consulted an expert witness in child psychiatry, William Bernet, M.D. [hereinafter "Dr. Bernet"], another defendant herein. Mr. Gillooly consulted Dr. Bernet, who was the Medical Director of the Psychiatric Hospital of Vanderbilt University, after Dr. Wilson alleged that Ms. Bicks' then-boyfriend had sexually abused G.B.W.4 Dr. Bernet found no evidence of such abuse,5 and, based upon the evidence presented, the circuit court also found no such abuse had occurred. By final order entered June 4, 1997, the circuit court awarded permanent custody of G.B.W. to Ms. Bicks and visitation privileges to Dr. Wilson.6 The circuit court additionally asked Dr. Bernet to formulate a reunification and visitation plan to re-establish contact7 between G.B.W. and Ms. Bicks.8
Following the aforementioned resolution of the custody and visitation proceedings, Dr. Wilson, on July 13, 1999, filed the instant matter against Mr. Gillooly, Dr. Bernet, and Vanderbilt University asserting a cause of action for tortious interference with a parental or custodial relationship.9 Thereafter, on February 10, 2000, Mr. Gillooly, joined by the remaining defendants, filed a motion for summary judgment, but the circuit court deferred ruling thereon until the completion of discovery. Following various other procedural delays,10 Dr. Bernet and Vanderbilt University renewed their motion for summary judgment on March 18, 2004. On April 16, 2004, Mr. Gillooly also renewed his motion for summary judgment. By order entered July 19, 2004, the circuit court granted, in part, and denied, in part, the defendants' motions for summary judgment; of particular import to the instant proceeding, the circuit court denied the defendants' motions for summary judgment on Dr. Wilson's claims of tortious interference with a parental or custodial relationship. As a result, the defendants then moved the circuit court to certify to this Court questions pertaining to the tortious interference claims. By order entered October 4, 2004, the circuit court certified the following questions to this Court:
Certified Question No. 1: May the holding in Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998), which adopted a cause of action for tortious interference with a parental or custodial relationship, be applied to maintain a cause of action against an adverse child psychiatry expert witness who provides expert testimony in a hearing concerning visitation and custody and who participates in a reunification plan between mother and child pursuant to the orders of the court?
NO ___
Certified Question No. 2: Does a cause of action exist for tortious interference with a parental relationship as recognized in Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998), in favor of a litigant involved in child custody/visitation proceedings against an attorney representing an opposing party in that litigation?
NO ___
Certified Question No. 3: If the tortious interference with a parental/custodial relationship claim is based upon factual issues and/or allegations that were raised and resolved against the litigant in the child custody/visitation proceeding, must the litigant first seek and obtain relief from the judgment entered in the child custody/visitation proceeding with respect to such issues or allegations pursuant to Rule 60 of the West Virginia Rules of Civil Procedure11 or otherwise as a condition precedent to assert the tortious interference claim?
YES ___
(Footnote added). By order entered March 24, 2005, this Court accepted these certified questions for review.12
The issues presented by instant matter involve questions of law certified to this Court. When called upon to consider certified questions, we employ a plenary review and review anew the answers provided by the circuit court. "The appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). See also Syl. pt. 1, Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999) (); Syl. pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998) (). Mindful of this standard, we proceed to consider the questions presented for our determination.
In this case, we are called upon to answer two13 certified questions from the Circuit Court of Kanawha County:
Certified Question No. 1: May the holding in Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998), which adopted a cause of action for tortious interference with a parental or custodial relationship, be applied to maintain a cause of action against an adverse child psychiatry expert witness who provides expert testimony in a hearing concerning visitation and custody and who participates in a reunification plan between mother and child pursuant to the orders of the court?
Certified Question No. 3: If the tortious interference with a parental/custodial relationship claim is based upon factual issues and/or allegations that were raised and resolved against the litigant in the child custody/visitation proceeding, must the litigant first seek and obtain relief from the judgment entered in the child custody/visitation proceeding with respect to such issues or allegations pursuant to Rule 60 of the West Virginia Rules of Civil Procedure or otherwise as a condition precedent to assert the tortious interference claim?
Considering these questions, the circuit court answered the first question in the affirmative and the third question in the negative. Before this Court, Dr. Wilson contends that the circuit court correctly answered the questions before it, while Dr. Bernet argues that the circuit court's answers were erroneous.
Before addressing the issue squarely presented by the circuit court's certified questions, it is instructive to examine the context within which such questions are posed, i.e., the level of immunity, if any, generally enjoyed by an expert witness. Although we previously have considered whether or not an expert witness is entitled to immunity vis-a-vis his/her testimony and participation in judicial proceedings, we have not squarely decided the issue. See Davis ex rel. Davis v. Wallace, 211 W.Va. 264, 269, 565 S.E.2d 386, 391 (2002) (per curiam) (). See also Williamson v. Harden, 214 W.Va. 77, 585 S.E.2d 369 (2003) (per curiam) (). For example, in Davis we recognized that
[t]he law regarding witness immunity is sparse in West Virginia, and the issue of expert witness immunity has not been addressed by this Court. Historically, in West...
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