Fourth Circuit Confirms Scope of “Witness Litigation Privilege”


On October 26, in the case of Day v. Johns Hopkins Health Sys. Corp., divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling that the common law “Witness Litigation Privilege” protects an expert witness in a Black Lung Benefits Act benefits proceeding against civil claims that allege a federal RICO violation and Maryland state law claims for fraud, tortious interference, negligent misrepresentation and unjust enrichment attended the testimony of the expert witness.

The expert witness testified under oath and cross examination that it was his conclusion that the evidence he reviewed regarding the coal miners’ claim for Black Lung Benefits Act benefits did not support those claims. The claim was denied, but then a report from the Center for Public Integrity (CPI) alleged that the John Hopkins radiology unit and its expert witnesses were much less likely to find cases of black lung disease than other doctors.

Following the issuance of this report, the Department of Labor instructed its staff not to credit any evidence based on the expert opinions of these witnesses, and awarded the claimants posthumous benefits. This lawsuit resulted, but the District Court dismissed the lawsuit on the basis of this privilege.

On appeal, the plaintiffs argued that these expert witnesses misled the tribunal and the miners as to which standards he was applying, and as the CPI report documents, this amounted to a systemic violation of international standards. However, the Fourth Circuit panel stated that “absolute immunity” applies to those persons who ”aid the truth-seeking mission of the judicial system.” Indeed, “when a witness takes the oath, submitting his own testimony to cross-examination, the common law does not allow his participation to be deterred or undermined by subsequent collateral actions for damages.”

The Fourth Circuit held that the witness litigation privilege is part of the federal common law and the state laws of Maryland. The federal claim here arises under the Racketeer Influenced and Corrupt Organizations Act (RICO), and the Fourth Circuit determined that nothing in RICO displaced or abrogated this common law privilege. In addition, the majority’s review of Maryland law discloses no intent to dislodge this common law privilege.

There was a strong dissent, pointing out that the allegations in the complaint describe a sophisticated and complex RICO scheme; moreover, the dissent argues that the privilege should not relate back to non-testimonial actions occurring prior to testimony.