Dr. Paul Wheeler, and his unit within Johns Hopkins Medical Center engaged in a pattern of false medical assessments of claimants seeking benefits under the Federal Black Lung Program. In Day v. John Hopkins Health System Corp., 907 F.3d 766 (4th Cir. October 26, 2018), a divided Fourth Circuit panel held that the witness litigation privilege extends to expert opinions offered in administrative proceedings. The privilege provides witnesses in adjudicative proceedings with absolute immunity from later civil liability for their testimony.
Day is a “hard case.” The witness litigation privilege is longstanding and serves important purposes. But Dr. Wheeler and his compatriots’ conduct was egregious — so egregious that the Department of Labor was forced to take extraordinary corrective actions. In particular, the Department instructed its staff to discredit any evidence based on Dr. Wheeler’s expert opinion, encouraged coal miners whose claims had been rejected due to Dr. Wheeler’s testimony to refile for benefits, and granted benefits on many of the refiled claims. This post will focus on the case.
Day v. Johns Hopkins: A Hard Case
Consider this disturbing fact pattern:
- Associate Professor Paul Wheeler led Johns Hopkins’ Pneumoconiosis Section, a part of the School’s Radiology Department, for a number of years.
- Wheeler and other doctors in his Section obtained B-reader accreditation, demonstrating knowledge and expertise in the International Labour Organization (“ILO”) classification system for reading radiographs.
- Wheeler and his fellow doctors understood their legal obligation, as accredited B-readers, to use the ILO classification system when interpreting radiographs for purposes of assessing miners “Black Lung” claims.
- Despite that legal obligation, they intentionally disregarded the ILO classification system in interpreting coal miners’ radiographs so as to falsely attribute positive readings to causes other than pneumoconiosis.
- Wheeler ultimately admitted purposefully disregarding his obligation to apply the ILO classification system, asserting that he did not “care about the law,” nor think coal miners deserved benefits just “because [they had] masses and nodules.”
- In exchange for their knowingly false expert opinions, Wheeler and his associates received fees from their coal company clients that “significant[ly]” exceeded “standard x-ray review fees.”
- Wheeler and his associates repeatedly committed mail fraud by using the mails to receive radiographs and to transmit their false readings to coal companies, the companies’ lawyers, and administrative adjudicators.
- In roughly 1500 radiograph interpretations, Wheeler and his compatriots never identified the most serious and obvious form of black lung for any claimant, even though other expert physicians using the ILO standards found that approximately 390 of those 1500 radiographs showed the presence of such a condition.
- In at least 280 of those cases, including Day’s, Wheeler and his compatriots successfully deceived the agency adjudicators. As a result, those diseased miners were denied the statutory black lung benefits to which they were entitled.
See, 907 F.3d 766 780-82 (King, J., dissenting).
This certainly sounds like a strong case for a civil treble damages claim under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), Organized Crime Control Act of 1970, Pub. L. 91–452, §901(a), 84 Stat. 922, 931 (codified at 18 U.S.C. §§1961–1968), as well as state fraud and unjust enrichment claims.
“Hard case” do indeed sometimes “make bad law.” Northern Securities Co. v. United States, 193 U.S. 197, 364 (1904)(Holmes, J., dissenting). Cases in which firmly established caselaw and a judge’s intuitive sense of justice in the individual case point in different directions can lead to creation of doctrines that become difficult to cabin – creating the classic “slippery slope” problem. But hard cases can also make “good law,” the accumulated wisdom of “generations of courts and jurists” borne of concern regarding the run of cases can be wrong. Arthur L. Corbin, Hard Cases Make Good Law, 33 YALE L.J. 78, 78 (1923); see, JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW 263-64 (1909)(“[i]f hard cases make bad law, bad law also makes hard cases”). The trick, of course, is to determine whether resolving a hard case by an intuitive sense of justice will ultimately produce a workable legal doctrine or an intractable mess.
The witness litigation privilege is certainly long-standing and salutary. Judge J. Harvie Wilkinson’s majority opinion in Day v. Johns Hopkins makes a powerful case for a broad application of the privilege.
The privilege was well-known in English law, and corresponds to the absolute privilege protecting other trial participants, like judges and lawyers. See, Briscoe v. LaHue, 460 U.S. 325, 330-36 (1983). In 1983, the Supreme Court reaffirmed the privilege and, in the Fourth Circuit’s view, established a strong presumption that statutes creating civil causes of action do not implicitly abrogate the doctrine. Id. at 345; Day v. Johns Hopkins, 907 F.3d at 776. The Court rejected the argument that convicted criminal defendants could bring section 1983 actions, 42 U.S.C. §1983, against law enforcement officials who had allegedly committed perjury during their trials.
In a closely divided decision, the Court held that the witness litigation privilege provided absolute immunity against such claims. The majority did not find a sufficient indication in section 1983 or its legislative history to overcome the presumption that the witness litigation privilege applied. 460 U.S. at 336-41. The Court contrasted section 1983 with 42 U.S.C §1985(3). The latter imposes imposing civil and criminal liabilities for conspiracies to deprive individuals of their civil rights. Section 1985(3)’s legislative history revealed legislators’ concerns about the use of perjury to secure acquittals of members of the Ku Kux Klan who had participated in campaigns of terror aimed at depriving newly-freed slaves and their supporters of their constitutional rights. Id. at 337; see, Day v. Johns Hopkins, 907 F.3d at 776; see generally, United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 836-37 (1983).
As for the critical function the witness litigation privilege serves, the Day majority explained that “a witness asked to testify without absolute protection may decline to do so, fearful of retribution.” Id. at 772. Moreover, even those who agree to testify may “be inclined to shade [their] testimony in favor of the potential [collateral action] plaintiff,” depriving “the finder of fact of candid, objective, and undistorted evidence.” Id. (quoting Briscoe, 460 U.S. at 333).
Judge Wilkinson noted other means by which perjurers could be prevented from harming litigants and subjected to punishment after the fact. He noted that the potential for a perjury prosecution and cross examination serve to constrain witness dishonesty. Id. at 772-73. Moreover, “[i]n [the] public benefits setting,” “the legislature or agency may also provide avenues of redress to those who believe they have been wronged by false testimony.” Id. at 773. The majority explained that each of these remedial measures shared one critical feature, namely “they place the decision to sanction the witness under the authority of a neutral officer—whether it be a judge, agency official, or prosecutor—rather than in the hands of a disgruntled adversary.” Id.
In addition, but unmentioned by the majority, some witnesses, particularly expert witnesses, may be subject to consequences for their testimony in the form of professional discipline. But those processes, as well, lie beyond disgruntled litigants’ control. Indeed, the organizations in charge of professional discipline will likely be quite sensitive to preventing their processes from being used to facilitate wrongful vendettas against professionals who have given expert testimony.
The majority noted that the privilege applies to “administrative proceedings” of a “quasi-judicial” nature, explaining that “[t[he Supreme Court has recognized that the need for witness immunity does not turn on a tribunal’s ‘particular location within government.’” Day v. Johns Hopkins, 907 F.3d at 774 (quoting Butz v. Economou, 438 U.S. 478, 512 (1978)). Such a “functional approach,” the Court noted, “recognizes that the public policy concerns that motivate immunity in court apply just as forcefully when the witness appears in other adjudicative proceedings that share the essential features of litigation.” Id. To the majority, the key features seemed to relate to the adversarial process. Thus, it is not clear whether the witness immunity doctrine will apply to inquisitorial processes, see, Jon Dubin, Torquemada Meets Kafka: The Misapplication of The Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 COLUM. L. REV. 1289 (1997)(distinguishing inquisitorial and adversarial processes); Sims v. Apfel, 530 U.S. 103, 109-12 (2000)(holding that different exhaustion rules apply in inquisitorial proceedings), like administrative proceedings to determine claims for disability benefits under the Social Security Act.
The majority also concluded that neither the RICO statute itself nor its legislative history indicated any congressional intention to abrogate the traditional witness litigation privilege. Day v. Johns Hopkins, 907 F.3d at 776-78. It ultimately closed its opinion with the following observation:
Rather than acknowledge the protection of the Witness Litigation Privilege, appellants and our dissenting colleague offer a competing theory of witness immunity, applicable only in some cases, only for some witnesses, and only for certain acts. If a plaintiff seeks damages for a claim other than defamation, or against an expert witness who appeared voluntarily, or based on allegations of deliberate wrongdoing, then the privilege could be overcome by every judge’s independent notions of good policy.
The uncertainty of such an approach would sound the death knell of the privilege. . . . This is not to say that every witness is the embodiment of perfect recall or integrity, but only that the alternative suggested by appellants to the existing remedies and sanctions for flawed testimony would be far worse.
Id. at 780.
Commentary: Making Bad Law or Good Law
This case does not present the paradigm case for the witness litigation immunity. It does not involve a lay witness, much less a reluctant one. It does not involve merely mistaken testimony. And, it does not involve a court proceeding. Should any of this make a difference or point the way to a manageable exception to witness immunity?
Expert vs. Lay Testimony
Should expert witnesses be treated differently than lay witnesses? In Briscoe v. LaHue, the Court declared that “immunity analysis rests on functional categories, not on the status of the defendant,” and concluded that because police officers serve the same functions when testifying as any other witness, the litigation witness immunity should apply. 460 U.S. at 342.
However, the witness immunity rule developed long before experts came to be used as extensively as they are today, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, 137 F.R.D. 53, 157 (September 1991), and Briscoe v. LaHue, the Court’s contemporary reaffirmation on the privilege, involved lay witness testimony. Expert witnesses are compensated, often quite lucratively, for the time they spend in preparing for the case and testifying, which creates a financial incentive shade the truth. Expert witnesses can give opinion testimony based on scientific, technical, or other specialized knowledge, unlike lay witnesses. FED. R. CIV. P. 701-703. And, perhaps most importantly, expert testimony is often harder for adversaries to question and decision-makers to assess. Even if cross-examination is “the greatest legal engine ever invented for the discovery of truth,” 5 J. WIGMORE, EVIDENCE § 1367 (J. Chadbourn rev. 1974), its utility is greatly diminished in the context of expert witnesses, whose expertise cross-examining lawyers can rarely hope to match. And indeed, the difficulty of at least juror assessments of expert witnesses is so significant that the Court has created special gate-keeper rules to prevent unreliable expert witness testimony from being presented to the jury. FED. R. CIV. P. 702 -703; Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Indeed, it is quite likely that jurors at least will resolve disputes between experts based on “more or less irrelevant proxies,” such as the expert witnesses’ relative credentials, rhetorical skills, and personality, rather than applying any independent judgment to scientific and technical arguments the experts are proffering.
At least theoretically, the problem of assessing expert testimony should be diminished somewhat in the context of administrative proceedings. Administrative adjudicators can be expected to gain some level of sophistication or expertise over time. Nevertheless, as the influence of B-reader opinions in the Black Lung program illustrates, it is often difficult for even specialized administrative adjudicators to uncover expert error or outright dishonesty.
Ironically, there seems to be a greater push for removing the witness litigation privilege for the testimony of friendly experts — experts whose negligence in reaching expert opinions harm the party that engages them. See, Mark Hansen, Experts Are Liable, Too: Client Suits Against ‘Friendly Experts’ Multiplying, Succeeding, 86-NOV. A.B.A. J. 17 (2000). The case for permitting negligence suits against friendly witnesses is weaker than that for permitting perjury and fraud suits against adverse witnesses. Experts already have significant incentives to aid friendly parties and “shade” their testimony in their client’s favor. Removing witness immunity in that context merely provides another reason for expert witnesses to fear disappointing the parties that hire them, only increasing those incentives to shade testimony in their favor (all the more so if they retain immunity against suits by adverse parties). Granted, the availability of a cause of action against an adverse witness is likely to lead to a much greater volume of litigation.
Any doctrine removing immunity for expert witnesses, while helpful to plaintiffs in Day, may prove a curse to plaintiffs in general. The existence of such a doctrine may exacerbate the difficulty plaintiffs’ encounter in securing experts to testify in professional malpractice cases. See, Trull v. Long, 621 So.2d 1278 (Ala. Sup. Ct. 1993)(citing scholarly discussions recognizing the “conspiracy of silence” and judicial opinions on both sides of the issue). And plaintiffs’ more often rely on unconventional experts who use less widely-accepted methodologies to make their cases. Accordingly, it is far more likely that suits for fraudulent testimony will be brought against plaintiffs’ experts than defense experts, skewing litigation involving expert testimony even more in favor of defendants.
Deliberately False Statements vs. Mistaken Statements
There is clearly a difference between mistaken testimony and deliberately false and misleading testimony. In general, we view such intentional acts as much more culpable than negligent acts. Dr. Wheeler’s course of conduct is thus far more serious than negligence, and less worthy of the cloak of immunity. The difficulty with permitting suits based on fraudulent expert testimony but prohibiting suits based merely on negligent testimony is that it is often difficult to tell “innocent” errors from deliberate ones.
Agency Proceedings vs. Court Proceedings
Unlike a court, an agency is not disinterested, litigation serves as a component of the agency’s positive program, see, JERRY L. MASHAW, BUREAUCRATIC JUSTICE 23-40 (1983) Jerry L. Mashaw, Conflict and Compromise Among Models of Administrative Justice, 1981 DUKE L.J. 181, 183-95. Thus, experts have a greater obligation to follow the methodologies that administrative agencies specify than is generally the case in judicial proceedings — in which an expert can use whatever legitimate approach he or she believes appropriate, and seek to convince the decisionmaker, whether judge or jury, of its merit. Moreover, administrative tribunals are often created so that the process of making claims is simpler and more straightforward than litigation in federal court. Indeed, in worker’s compensation programs in particular, the grand bargain struck long ago was that workers suffering job-related injuries would receive more limited compensation than other tort claimants, but would have a greater certainly of recovery. Thus to expect plaintiffs to be able to effectively cross-examine or otherwise discredit expert witnesses is particularly problematic.
Indeed, the majority emphasizes the adversarial nature of the adjudicative process under the Black Lung program, leaving open the possibility of refusing toextend the witness immunity doctrine in inquisitorial proceedings. But the only reason that the SSA disability program differs from the Black Lung Program is the financing of the respective compensation systems — coal companies rather than government revenues, see, Usery v. Turner Elkhorn Mining, 428 U.S. 1, 8-10 (1976), giving companies an adversarial interest in opposing benefits absent from the SSA disability program.
A Potential Approach
Nevertheless, we should be concerned about the prospect of losing parties keeping a controversy alive by turning their attention to potential liability of adverse expert witnesses. The Day majority is quite right to note that many of the consequences for allegedly perjured testimony lie beyond the control of the party who lost the case as a result of that testimony.
Perhaps a solution to the need for some remedy for perjured expert testimony and the need to preclude litigation vendettas is to require a party who wishes to bring a suit claiming such perjury to first obtain the concurrence of the tribunal in which the perjured testimony was given or show that a the witness was criminally prosecuted for perjury or false statement. This would retain one aspect of current doctrine that Judge Wilkinson found so salutary, the control over litigation over false trial statements being in the hands of someone more objective than the losing party to a suit. Granted, the Supreme Court rejected a similar approach in Briscoe v. Lahue, 460 U.S. at 344. In any event, crafting such a solution is a much more appropriate task for the political branches of government than for the federal judiciary.
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 The initial story was published by the Center of Public Integrity as the second part of its three-part series entitled “Breathless and Burdened: Dying from Black Lung, Buried by Law and Medicine.” Chris Hamby, et al., Johns Hopkins Medical Unit Rarely Fins Black Lung, Helping Coal Industry Defeat Miner’s Clams (October 30, 2013, updated January 13, 2015).
 The Center for Public Integrity reported that those funds flowed to John Hopkins Radiology Department or to scholarships. Chris Hamby, Consulting Fees in Black Lung Cases Flow Directly to Johns Hopkins (October 30, 2013, updated May 19, 2014).
 A diagnosis of complex pneumoconiosis establishes an conclusive presumption of disability, entitling the miner to benefits. Usery v. Turner Elkhorn Mining, 428 U.S. 1, 11, 22-23 (1976).
 In general, the Center for Public Integrity reported that fewer than 10% of black lungs claimants receive benefits. Chris Hamby, Senators Push Reform of Black Lung Program That ‘Failed’ Sick Miners (November 5, 2013, updated May 19, 2014). .
 “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Id.
 See Frederick Schauer, Slippery Slopes, 99 HARV. L. REV. 361 (1985).
 Day v. Johns Hopkins, 907 F.3d at 780.
 Agencies can proactively take preventative measures, such as the Department of Labor’s Office of Worker’s Compensation Programs has done with regard to B-readers. See, Memorandum of Understanding between the Department of Labor Office of Workers’ Compensation Programs (OWCP) and the Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health (NIOSH) Establishing a B Reader Quality Assurance Program (September 24, 2015).
 See, e.g., American Medical Assn, Code of Medical Ethics Opinion 9.7.1; Committee on Medical Liability, American Assn of Pediatrics, Guidelines for Expert Witness Testimony in Medical Malpractice Litigation, 109 PEDIATRICS 974 (2002); American Urological Assn, Expert Witness Testimony in Medical Liability Cases.
 At least two jurisdictions do not recognize the witness litigation immunity with regard to either adverse expert witnesses or “impartial” expert witnesses, James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982)(adverse witness); Levine v. Wiss & Co., 478 A.2d 397, 402-03 (N.J. 1984)(impartial witness selected by the litigants). With regard to friendly experts, Bruce v. Byrne-Stevens & Assoc. Engineers, Inc., 776 P.2d 666 (Wash. 1989), extended immunity so such witnesses, but other jurisdictions have refused to do so. See, Mattco Forge v. Arthur Young & Co. 6 Cal. Rptr. 2d 781, 787-90 (Ct. App. 1992); Murphy v. A.A. Matthews, 841 S.W.2d 671, 680-82 (Mo. 1992); Andrew Jurs, The Rationale for Expert Immunity or Liability Exposure and Case Law Since Briscoe: Reasserting Immunity Protection For Friendly Expert Witnesses, 38 U. MEM. L. REV. 49 (2007)(collecting cases).
 Law enforcement officer’s giving of false testimony is so prevalent, it has spawned the term “testilying.” Christopher Slobogin, Testilying: Police Perjury and What To Do About It, 67 U. COLO. L. REV. 1037 (1996); Joseph Goldstein, ‘Testilying’ by Police: A Stubborn Problem, N.Y. TIMES A1 (March 19, 2018); Radley Balko, How Do We Fix The Police ‘Testilying’ Problem?, WASH. POST (April 16, 2014).
 Law enforcement officials, the subject of Briscoe v. LaHue, are also compensated for their time in preparing and giving testimony, as such testimony is a part of their salaried employment. However, that economic incentive does not seem to be the major motivation underlying false law enforcement testimony. See, Briscoe v. LaHue, 460 U.S. at 342 (noting police officer’s professional interest in obtaining convictions).
 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 (1993) (“[u] nlike an ordinary witness . . . an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation).
 See, e.g., Jack B. Weinstein, Rule 702 Of The Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)(“Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge . . . exercises more control over experts than over lay witnesses. The judge may insist, for example, on strong guarantees that tests relied on by an expert were properly conducted since a careless laboratory is a terrible hazard to justice.”)
 “But,” as Learned Hand asked over a century ago, “how can the jury judge between two [expert] statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all.” Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 54 (1901).
 Christopher Tarver Robertson, Blind Expertise, 85 N.Y.U. L. REV. 174, 192 & n.85 (2010).
 Blind Expertise, supra, 85 N.Y.U. L. REV. at 185-88.
 Barefoot v. Estelle, 463 U.S. 880, 898 (1983)(“[t]he rules of evidence … anticipate that relevant, unprivileged evidence should be admitted and its weight left to the fact finder, who would have the benefit of cross-examination and contrary evidence by the opposing party”); Weinstein, supra, 138 F.R.D. at 631 (“The Rules [of Evidence] were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts. The judge was intended to serve the limited role of facilitator rather than controller.”); accord, Weinstein, supra, 138 F.R.D. at 641 (“An expert’s testimony can be sound even when another expert and the judge disagree with him or her.”); Committee Notes on Rule 702 — 2000 Amendment (“When a trial court, applying this amendment, rules that an expert’s testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise”).
 Indeed, initially the benefits were paid by the federal government. Id.
 The Court refused the invitation to abrogate police officers’ immunity against allegation of perjury even where criminal defendants had already vindicated themselves in another forum, either on appeal or by collateral attack.