Bruce v. Byrne-Stevens & Associates Engineers, Inc.

Page 123

113 Wn.2d 123

776 P.2d 666

Robert L. BRUCE and Sallee Bruce, husband and wife, and Mildred A. Smallwood, a widow, Respondents, v. BYRNE-STEVENS & ASSOCIATES ENGINEERS, INC., and Patrick J Byrne and Jane Doe Byrne, husband and wife, Petitioners.

No. 55250-9.

Supreme Court of Washington En Banc.

July 20, 1989.

Kane, Vandeberg, Hartiner & Walker, Harold T. Hartinger, Tacoma, for petitioners.

Sinnitt & Sinnitt, P.S., Paul Sinnitt, Tacoma, for respondents.

Russell C. Love, Seattle, amicus curiae, for petitioners on behalf of Washington Defense Trial Lawyers.

Bryan P. Harnetiaux, Robert H. Whaley, Spokane, amicus curiae for respondents Washington State Trial Lawyers Ass'n.

DORE, Justice.

We hold that an engineer who testified as an expert witness on behalf of respondents at a previous trial is entitled to immunity from suit based on his testimony.

FACTS

Respondents Bruce and Smallwood own separate parcels of property on Clear Lake in Pierce County. In 1979 a neighbor, John Nagle, conducted excavation work on his property, resulting in subsidence in the soil of the Bruce and Smallwood properties. They sued Nagle and retained petitioner Byrne-Stevens & Associates Engineers, Inc. (Byrne-Stevens) to calculate and testify as to the cost of stabilizing the soil on their land. The principal of the firm, Patrick J. Byrne, testified at the trial that the cost of restoring lateral support would be $10,020 on the Bruce property and $11,020 on the Smallwood property. The respondents obtained a judgment against Nagle for damages of $10,020 to Bruce and $11,020 to Smallwood.

Bruce and Smallwood sued Byrne-Stevens and Byrne alleging that the cost of restoring lateral support later proved to be double the amount of Byrne's estimate at trial. They contend that Byrne was negligent in preparing his analysis and testimony and that, but for Byrne's low estimate of the cost of restoring lateral support, they would have obtained judgment against Nagle for the true cost of the restoration.

The trial court granted the defendants' motion to dismiss based on witness immunity. The Court of Appeals reversed. Bruce v. Byrne-Stevens & Assocs. Engr's, Inc., 51 Wash.App. 199, 752 P.2d 949, review granted, 111 Wash.2d 1001 (1988). We reverse the Court of Appeals and dismiss the suit.

WITNESSES ARE ABSOLUTELY IMMUNE FROM SUIT

As a general rule, witnesses in judicial proceedings are absolutely immune from suit based on their testimony.

The immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law. Cutler v. Dixon, 4 Co.Rep. 14b, 76 Eng.Rep. 886 (Q.B.1585); Anfield v. Feverhill, 2 Bulst. 269, 80 Eng.Rep. 1113 (K.B.1614); Henderson v. Broomhead, 4 H. & N. 569, 578, 157 Eng.Rep. 964, 968 (Ex.1859); see Dawkins v. Lord Rokeby, 4 F. & F. 806, 833-834, 176 Eng.Rep. 800, 812 (C.P.1866).

(Footnotes omitted.) Briscoe v. LaHue, 460 U.S. 325, 330-31, 103 S.Ct. 1108, 1112-113, 75 L.Ed.2d 96 (1983). The rule is equally well established in American common law. See Lawson v. Hicks, 38 Ala. 279, 285-88 (1862); Myers v. Hodges, 53 Fla. 197, 208-10, 44 So. 357-61 (1907); Smith v. Howard, 28 Iowa 51, 56-57 (1869); Gardemal v. McWilliams, 43 La.Ann. 454, 457-58, 9 So. 106, 108 (1891); Burke v. Ryan, 36 La.Ann. 951, 951-52 (1884); McLaughlin v. Cowley, 127 Mass. 316, 319-20 (1879); Cooper v. Phipps, 24 Or. 357, 363-64, 33 P. 985, 986-87 (1893); Shaaden v. McElwee, 86 Tenn. 146, 149-54, 5 S.W. 602, 603-05 (1887); Cooley v. Galyon, 109 Tenn. 1, 13-14, 70 S.W. 607, 610 (1902); Chambliss v. Blau, 127 Ala. 86, 89-90, 28 So. 602, 603 (1900).

The purpose of the rule is to preserve the integrity of the judicial process by encouraging full and frank testimony.

In the words of one 19th-century court, in damages suits against witnesses, "the claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." Calkins v. Sumner, 13 Wis. 193, 197 (1860). A witness' apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. See Henderson v. Broomhead, [4 H. & N. 569, 578-79], 157 Eng.Rep., at 968. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. See Barnes v. McCrate, 32 Me. 442, 446-447 (1851). Even within the constraints of the witness' oath there may be various ways to give an account or to state an opinion. These alternatives may be more or less detailed and may differ in emphasis and certainty. A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence.

Briscoe, 460 U.S. at 332-33, 103 S.Ct. at 1113-114.

In addition to the benefits obtained by extending immunity, the rule also rests on the safeguards against false or inaccurate testimony which inhere in the judicial process itself. A witness' reliability is ensured by his oath, the hazard of cross-examination and the threat of prosecution for perjury. Briscoe, at 332, 103 S.Ct. at 1113. See Engelmohr v. Bache, 66 Wash.2d 103, 401 P.2d 346 (Witness immunity not applicable to statements made in administrative hearing which did not resemble a judicial proceeding), cert. dismissed, 382 U.S. 950, 86 S.Ct. 431, 15 L.Ed.2d 463 (1965). In light of these safeguards, the detriments of imposing civil liability on witnesses outweigh the benefits.

The scope of witness immunity is broad. Immunity has been extended to witnesses before grand juries. Macko v. Byron, 760 F.2d 95, 97 (6th Cir.1985); Kincaid v. Eberle, 712 F.2d 1023 (7th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983). Witnesses in other pretrial proceedings are also absolutely immune. Holt v. Castaneda, 832 F.2d 123, 125 (9th Cir.1987); Williams v. Hepting, 844 F.2d 138 (3d Cir.1988).

Guardians, therapists and attorneys who submit reports to family court are absolutely immune. Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987). Probation officers who allegedly include false statements in pretrial bond reports have been held immune. Tripati v. United States Immigration & Naturalization Serv., 784 F.2d 345, 348 (10th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 755, 98 L.Ed.2d 767 (1988).

The respondents and amicus curiae on behalf of Washington State Trial Lawyers Association have offered three reasons why the general rule of witness immunity should not apply: (a) the expert is retained and compensated by a party for his testimony; (b) witness immunity is limited to defamation cases; and, (c) witness immunity is limited to statements made at trial. None of these arguments has merit.

PRIVATELY RETAINED AND COMPENSATED EXPERT WITNESSES ARE IMMUNE

The Washington case most on point here is Bader v. State, 43 Wash.App. 223, 716 P.2d 925 (1986). In Bader, Eastern State Hospital evaluated a criminal defendant, Morris Roseberry, for the purpose of determining whether he was competent to stand trial. Roseberry was diagnosed as paranoid schizophrenic and manic depressive, but was found competent to stand trial. Roseberry was acquitted and released, conditioned on his submitting to treatment. He later murdered a neighbor and the victim's estate sued Eastern State for negligence in its evaluation of Roseberry.

Division Three of the Court of Appeals held Eastern State immune from suit on grounds of judicial immunity. Bader, at 226, 716 P.2d 925. Accord, Tobis v. State, 52 Wash.App. 150, 758 P.2d 534 (1988); Moses v. Parwatikar, 813 F.2d 891, 892 (8th Cir.1987); Burkes v. Callion, 433 F.2d 318, 319 (9th Cir.1970); Bartlett v. Weimer, 268 F.2d 860 (7th Cir.1959); In re Scott Cy. Master Docket v. Scott Cy., 618 F.Supp. 1534, 1575 (D.Minn.1985); Kravitz v. State, 8 Cal.App.3d 301, 87 Cal.Rptr 352 (1970); Linder v. Foster, 209 Minn. 43, 45, 295 N.W. 299 (1940).

The Court of Appeals found Bader distinguishable, arguing: "Such immunity certainly would not apply to an expert retained by a party to litigation, because such an expert does not act on the court's behalf." Bruce, 51 Wash.App. at 201 n. 1, 752 P.2d 949. Reasoning along the same lines, the Court of Appeals held that the general rule of witness immunity should not apply here because:

Byrne is a professional, with a pecuniary motive for testifying. He voluntarily undertook to render his expert opinion in the original action, knowing that the parties and the court would rely on that opinion. He was not merely a bystander who fortuitously came to have information relevant to the claim, nor was he subject to contempt of court if he refused to assume this undertaking.

Bruce, 51 Wash.App. at 201, 752 P.2d 949.

The fact that Byrne was retained and compensated by a party does not deprive him of witness immunity. The Court of Appeals assumed that participants in adversarial judicial proceedings derive their immunity from their relationship to the judge, who is himself immune from suit. In many instances, that is correct. See Adkins v. Clark Cy., 105 Wash.2d 675, 717 P.2d 275 (1986) (immunity of bailiff). However, the rationale behind quasi-judicial immunity, as set out in Briscoe, sweeps more broadly. The purpose of granting immunity to participants in judicial proceedings is to preserve and enhance the judicial process. "The central focus of our analysis has been the nature of the judicial proceeding itself." Briscoe, 460 U.S. at 334, 103 S.Ct. at 1115. The various grants of immunity for judges and witnesses, as well as for prosecutors and bailiffs, are all particular applications of this central policy. They are best...