Davis, Justice:
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 proceeding (See
footnote 1) 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. (See
footnote 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.
Certified Question No. 1: May
the holding in Kessel v. Leavitt, 511 S.E.2d 720 (W. Va. 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?
YES PZJr
NO
Certified Question No. 2: Does
a cause of action exist for tortious interference with a parental relationship
as recognized in Kessel v. Leavitt, 511 S.E.2d 720 (W. Va. 1998),
in favor of a litigant involved in child custody/visitation proceedings against
an attorney representing an opposing party in that
litigation?
YES PZJr
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 Procedure (See
footnote 11) or otherwise as a condition precedent to assert the
tortious interference claim?
YES
NO PZJr
(Footnote added). By order entered March 24, 2005, this Court accepted these
certified questions for review. (See
footnote 12)
Certified Question No. 1: May
the holding in Kessel v. Leavitt, 511 S.E.2d 720 (W. Va. 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.
[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 Virginia and in other jurisdictions, witnesses have been regarded as having an absolute immunity regarding their testimony given during a trial. This immunity encourages witnesses “to speak freely without the specter of subsequent retaliatory litigation for their good faith testimony. The immunity was created at common law to shield the percipient [fact] witness who was called into court to testify as to what he saw, heard, or did that was relevant to an issue in the case.” Christopher M. McDowell, Note, Authorizing the Expert Witness to Assassinate Character for Profit: A Reexamination of the Testimonial Immunity of the Expert Witness, 28 U. Mem[.] L. Rev. 239, 275 (1997).
211 W. Va. at 267, 565 S.E.2d at 389. See also Davis, 211
W. Va. at 276, 565 S.E.2d at 398 (Starcher, J., concurring) (“The majority opinion clearly acknowledges
that there is not a cause of action for suing an opposing party's expert
witness in West Virginia, and there is absolutely no language in the majority
opinion that advocates for the creation of such a claim.” (emphasis in
original)). Similarly, in Williamson we commented, with respect to adverse
fact witnesses, that “[t]he court system simply could not function if
it permitted a losing party to sue an adverse witness . . . simply
because the losing party feels the witness testified falsely or inaccurately.
In the absence of specific evidence to the contrary, we must presume that witnesses
testify truthfully.” 214 W. Va. at 82, 585 S.E.2d at 374 (footnote
omitted). In spite of these dicta comments, however, the precise level of immunity
enjoyed by adverse expert witnesses in West Virginia remains unsettled.
While this Court has not yet defined the
parameters of expert witness immunity, other courts considering the issue have
definitively ruled on the matter. Preeminent among such tribunals is the United
States Supreme Court which addressed the immunity issue in Briscoe v. LaHue,
460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983). Reviewing
early English and American jurisprudence, the Court explained that “the
common law's protection for witnesses (See
footnote 14) is 'a tradition . . . well grounded in history
and
reason.'” Id., 460 U.S. at 334, 103 S. Ct. at 1115, 75 L. Ed. 2d
at 107 (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S. Ct.
783, 788, 95 L. Ed. 1019, 1027 (1951)) (footnote added). “In short,
the common law provided absolute immunity from subsequent damages liability
for all persons . . . who were integral parts of the judicial process.” 460
U.S. at 335, 103 S. Ct. at 1115-16, 75 L. Ed. 2d at 108. Such
protection was deemed to be necessary in order that “the paths which lead
to the ascertainment of truth should be left as free and unobstructed as possible.” 460
U.S. at 333, 103 S. Ct. at 1114, 75 L. Ed. 2d at 106 (internal
quotations and citation omitted). For this reason, “[t]he common law recognized
that . . . . '[a]bsolute immunity is . . . necessary
to assure that . . . witnesses can perform their . . .
function[] . . . without harassment or intimidation.'” 460 U.S.
at 335, 103 S. Ct. at 1115, 75 L. Ed. 2d at 108 (quoting Butz
v. Economou, 438 U.S. 478, 512, 98 S. Ct. 2894, 2913, 57 L. Ed. 2d
895, 919 (1978)). Such immunity traditionally was conditioned only upon the
prerequisite that the witness's “statements were relevant to the judicial
proceeding” in which they were made. (See
footnote 15) Briscoe, 460 U.S. at 331, 103 S. Ct. at
1113, 75 L. Ed. 2d at 105 (footnote omitted).
The Court further examined the public policy
reasons favoring a grant of immunity to expert witnesses, suggesting that, “ in
the absence of a privilege, honest witnesses might erroneously be subjected to
liability because they would have difficulty proving the truth of their statements.
This result seem[s] inappropriate in light of the witness' duty to testify.” 460
U.S. at 333 n.13, 103 S. Ct. at 1114 n.13, 75 L. Ed. 2d at 106
n.13 (citations omitted). More importantly, though, the Court recognized that
[a] witness' apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. . . . And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. . . . 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. . . . But the truth-finding process is better served if the witness' testimony is submitted to “the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.”
460 U.S. at 333-34, 103 S. Ct. at 1114-15, 75 L. Ed. 2d at 106-07
(quoting Imbler v. Pachtman, 424 U.S. 409, 440, 96 S. Ct. 984,
999, 47 L. Ed. 2d 128, 149 (1976) (White, J., concurring)) (citations
and footnotes omitted). Accordingly, the Court concluded that the adverse expert
witnesses involved in the Briscoe litigation should be afforded immunity
for their trial testimony.
Other jurisdictions faced with the question
of expert witness immunity have
generally followed the precedent set by the United States Supreme Court in Briscoe and
have determined that adverse or opposing expert witnesses should enjoy immunity
for their testimony and participation in judicial proceedings. (See
footnote 16) In sum, these courts concur that expert witness immunity is
designed “to protect adverse witnesses from suit by opposing parties after
the lawsuit ends.” Mattco Forge, Inc. v. Arthur Young & Co.,
6 Cal. Rptr. 2d
781, 789, 5 Cal. App. 4th 392, 405 (1992). Accord Marrogi
v. Howard, 805 So. 2d 1118, 1126 (La. 2002) (“[A]n adverse expert
witness [is] . . . immune from a retaliation suit filed by the losing
party in the earlier litigation[.]”). See also LLMD of Michigan,
Inc. v. Jackson- Cross Co., 559 Pa. 297, 307, 740 A.2d 186, 191 (1999)
(“An expert witness may not be held liable merely because his or her opinion
is challenged by another expert or authoritative source.”); Bruce v.
Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wash. 2d 123, 131, 776 P.2d
666, 670 (1989) (en banc) (“Civil liability is too blunt an instrument
to achieve much of a gain in reliability in the arcane and complex calculations
and judgments which expert witnesses are called upon to make.”).
The reasons given by these tribunals for
granting such immunity are varied and include a recognition that “the expert
owes no professional duty to the adversary,” (See
footnote 17) Murphy v. A.A. Mathews, a Division of CRS Group Engineers,
Inc., 841 S.W.2d 671, 682 n.11 (Mo. 1992) (en banc), and the concern that, “unless
expert witnesses are entitled to immunity, there will be a loss of objectivity
in expert testimony generally,” Bruce, 113 Wash. 2d at 130, 776 P.2d
at 670. Other courts have determined that immunity is essential in order that “all
witnesses may speak freely without the fear of a reprisal suit for slander,”
Moity v. Busch, 368 So. 2d 1134, 1136 (La. Ct. App. 1979), and
to avoid the potential “chilling effect on free testimony and access to
the courts” if suits against adverse expert witnesses were permitted, Wright
v. Yurko, 446 So. 2d 1162, 1164 (Fla. Dist. Ct. App. 1984). A further
consideration in favor of affording adverse expert witnesses immunity is that “the
protected interest [i]s the administration of justice and its objective to
uncover the truth,” Marrogi, 805 So. 2d at 1128, and a corresponding
concern that if adverse expert witnesses were not granted immunity, they “would
always be fearful of subsequent civil suits and would be extremely hesitant
or unwilling to testify,” Mattco Forge, 6 Cal. Rptr. 2d
at 789, 5 Cal. App. 4th at 405 (internal quotations and citation
omitted).
However, perhaps the most compelling reason
to grant adverse expert witnesses immunity for their testimony and trial participation
is the built-in mechanism, in the litigation process, itself, to ascertain the
truth and credibility of an adverse witness's testimony.
The law places upon litigants
the burden of exposing during trial the bias of witnesses and the falsity of
evidence, thereby enhancing the finality of judgments and avoiding an unending
roundelay of litigation, an evil far worse than an occasional unfair result. . . .
This policy can logically apply, however, only to trial testimony of adverse
witnesses. (See footnote
18) Mattco Forge, 6 Cal. Rptr. 2d at 789, 5 Cal. App. 4th
at 406 (footnote added) (internal quotations and citations omitted).
Based upon the foregoing authorities and
maintaining consistency with our prior cases discussing this matter, we therefore
hold that 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. (See
footnote 19) In rendering this
ruling, we do not, however, address those circumstances in which an expert
witness's testimony or participation in judicial proceedings may constitute
criminal activity insofar as Dr. Wilson has not alleged in his underlying civil
action that any of the defendants' actions rise to the level of criminal conduct.
Certified Question No. 1: May the holding in Kessel v. Leavitt, 511 S.E.2d 720 (W. Va. 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?
Dr. Wilson argues that the facts of this case support his maintenance of a
tortious
interference cause of action against Dr. Bernet because, in Dr. Wilson's opinion,
Dr. Bernet's testimony and participation in the underlying child custody and
visitation proceedings constituted tortious interference with Dr. Wilson's
parental and custodial rights vis-a-vis his son. By contrast, Dr. Bernet contends
that such a cause of action is not maintainable in this case because adverse
expert witnesses enjoy immunity from suit.
Before addressing whether the facts of this
particular case are sufficient to support a cause of action for tortious interference
with a parental or custodial relationship, we must first consider the context
within which this question is posed. In other words, the person against whom
relief is sought is an adverse expert witness. As we explained in the preceding
section, we are reluctant to recognize a party's right to bring a cause of action
against an adverse expert witness because of the chilling effect that such a
course would undoubtedly have upon the truth seeking process of the judicial
system. Therefore, our primary inclination is to answer this certified question
in the negative.
Nonetheless, we must also consider the nature
of the cause of action asserted to determine whether, in fact, a cause of action
for tortious interference with parental or custodial relationship should be excepted
from our rule of adverse expert witness immunity. As stated in Syllabus point
7 of Kessel v. Leavitt,
[t]o make out a prima facie claim for tortious interference with parental or custodial relationship, the complaining parent must demonstrate: (1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent's parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent's consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party's intentional interference caused harm to the complaining parent's parental or custodial relationship with his/her child; and (4) damages resulted from such interference.
204 W. Va. 95, 511 S.E.2d 720 (1998). Not included within the scope of this cause of action, however, are claims asserting tortious interference with a parent's visitation rights. As to this point, we cautioned that “[o]ur discussion of tortious interference will be limited to tortious interference with a parent's parental or custodial relationship with his/her child as distinguished from tortious interference with a parent's visitation rights . . . .” Kessel, 204 W. Va. at 135 n.43, 511 S.E.2d at 760 n.43. Moreover, in recognizing the tortious interference with parental or custodial relationship cause of action and its limitations, we enumerated certain affirmative defenses thereto:
Where a parent presents a prima facie case of tortious interference with his/her parental or custodial relationship, the party interfering with such relationship may assert the affirmative defense of justification, i.e., the party possessed a reasonable, good faith belief that interference with the parent's parental or custodial relationship was necessary to protect the child from physical, mental, or emotional harm, as contemplated by W. Va. Code § 49-1-3 (1994) (Repl. Vol. 1996). A party also cannot be held liable for tortious interference with a parental or custodial relationship if he/she acted negligently, rather than intentionally; possessed a reasonable, good faith belief that the interference was proper (i.e., no notice or knowledge of an original or superseding judicial decree awarding parental or custodial rights to complaining parent); or reasonably and in good faith believed that the complaining parent did not have a right to establish or maintain a parental or custodial relationship with the minor child (i.e., mistake as to identity of child's biological parents where paternity has not yet been formally established).
Syl. pt. 8, Kessel v. Leavitt, 204 W. Va. 95, 511 S.E.2d 720.
It appears, then, that the primary consideration
in maintaining a tortious interference with parental or custodial relationship
cause of action against one who has allegedly so tortiously interfered is that
the defendant has removed or detained the child from his/her parent or custodian
or otherwise interfered in the parent's or custodian's exercise of such rights.
Syl. pt. 7, id. In Kessel, the misconduct that led to our recognition
of this cause of action involved an unwed mother who, in collusion with her parents,
her brother, and two attorneys, not only prevented the child's father from learning
of the child's whereabouts but also precluded him from formulating or developing
any type of parental relationship with the child or exercising any sort of parental
rights whatsoever by secretly placing the child for adoption in Canada. Involved
therein was conduct involving the intentional, deliberate, conspiratorial, and
elaborately orchestrated cross-country and international taking and concealment
of the child; the compelled separation of the child from his biological father;
and other egregious conduct that barely fell short of outright
kidnaping and abduction. While compelling arguments can arguably be made to
permit such a cause of action to be maintained against an adverse expert witnesses
where the facts so warrant, particularly in light of the sanctity we accord
to the parent-child relationship, (See
footnote 20) we do not believe that an adverse expert witness's
trial testimony and participation in child custody and visitation proceedings
normally constitutes the type of wrongful conduct contemplated by the Kessel Court.
Therefore, we hold that 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. Accordingly, we answer
the circuit court's first certified question in the negative.
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?
Dr. Wilson suggests that moving for relief pursuant to Rule 60 (See
footnote 22) is not a necessary prerequisite to filing a tortious
interference cause of action against an adverse expert witness, while Dr. Bernet
contends that Dr. Wilson has not satisfied the requirements of Rule 60 by either
moving for relief thereunder or filing an independent action (See
footnote 23) as
contemplated thereby.
Reviewing the language employed by the circuit
court in this question, and considering it with respect to the other questions
certified contemporaneously therewith, it is apparent that this question presupposes
that one may maintain a cause of action for tortious interference with a parental
or custodial relationship against an adverse expert witness based upon the witness's
testimony and/or participation in a child custody and visitation proceeding.
In other words, this question inquiring about the necessity of requesting Rule
60 relief as a prerequisite to maintaining a tortious interference cause of action
comes into play only if such a cause of action is found to be permissible. Insofar
as we have concluded that a cause of action for tortious interference with a
parental or
custodial relationship may not be maintained against an adverse expert
witness who has testified and/or participated in a child custody and visitation
proceeding, it is irrelevant as to whether a Rule 60 motion must first precede
such impermissible suit. Because our negative answer to the first certified
question effectively disposes of the need to answer this certified question,
we find the circuit court's third certified question to have been rendered
moot and decline further to consider the matter.