Deatherage v. Examining Board of Psychology

948 P.2d 828, 134 Wash. 2d 131
CourtWashington Supreme Court
DecidedDecember 24, 1997
DocketNo. 65339-9
StatusPublished
Cited by29 cases

This text of 948 P.2d 828 (Deatherage v. Examining Board of Psychology) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deatherage v. Examining Board of Psychology, 948 P.2d 828, 134 Wash. 2d 131 (Wash. 1997).

Opinion

Johnson, J.

The question presented is whether an expert witness is absolutely immune from the disciplinary action of a state licensing board when the board initiates the proceeding based upon work performed as an expert witness in child custody cases. We reverse the Court of Appeals and hold absolute witness immunity does not extend to professional disciplinary proceedings.

FACTS

The State of Washington, Examining Board of Psychology (Board) brought disciplinary proceedings against Edward Deatherage alleging Deatherage failed to meet professional ethical standards in work that formed the basis of his expert testimony in several child custody suits. The [134]*134Board found Deatherage’s failure to qualify statements, his mischaracterization of statements, his failure to verify information, and his interpretation of test data were adequate grounds for initiating disciplinary proceedings under RCW 18.83.120(4), RCW 18.83.120(13), and RCW 18.83.130(5), (6).1 His conduct was also found to violate regulations of the Board: WAC 308-122-600; WAC 308--122-610(6); WAC 308-122-630(3); and WAC 308-122--680(5).2 After an extensive hearing, the Board found Deatherage had committed misconduct in three custody evaluations, and suspended his license for 10 years.3

Deatherage filed a petition in the Spokane County Superior Court seeking judicial review of the Board’s decision to suspend his license. The superior court upheld the 10-year suspension of Deatherage’s professional license, found Deatherage did not have absolute immunity, and could be subjected to a disciplinary proceeding. The Court of Appeals reversed the superior court, found absolute immunity was a bar to introduction of evidence of professional misconduct, but held Deatherage would have lost his license for 10 years based on the other conduct and, therefore, upheld the 10-year license revocation. Deatherage v. Examining Bd. of Psychology, 85 Wn. App. 434, 450, 932 P.2d 1267 (1997).

We reverse the Court of Appeals on the single issue of witness immunity and hold such immunity cannot be raised [135]*135as a defense to a state licensing board’s initiation of a professional disciplinary proceeding.

ANALYSIS

The State argues the Court of Appeals misapplied the law of expert witness immunity when it extended the doctrine to include immunity from a state licensing board proceeding. This is a legal question; therefore, the standard of review is de novo. Barr v. Day, 124 Wn.2d 318, 324, 879 P.2d 912 (1994).

In this case, the State subjected Deatherage to a professional disciplinary proceeding for Deatherage’s alleged negligent rendering of professional opinion in child custody cases. Deatherage has raised the defense of absolute witness immunity which he argues prevents the Board from initiating disciplinary proceedings against him based upon his work and conduct as an expert witness testifying in a court proceeding.

The defense of absolute privilege generally applies to statements made in the course of judicial proceedings and acts as a bar to any civil liability. Twelker v. Shannon & Wilson, Inc., 88 Wn.2d 473, 475, 564 P.2d 1131 (1977). The absolute privilege of witness immunity is well stated by the Restatement (Second) of Torts § 588 (1977):

A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.

The comments to the Restatement emphasize that the privilege does not provide blanket immunity to all statements, and the comments hmit the scope of the privilege to statements that have some relation to the proceeding or to a party to the proceeding.

This court’s early application of the privilege was consistent with the Restatement. In Twelker, the defendant raised the defense of absolute immunity in an attempt to [136]*136bar a lawsuit based upon statements in an engineering report made by a prospective witness prior to the initiation of the lawsuit. Twelker, 88 Wn.2d at 474-75. The appellant contended false statements regarding the content of his original soil report were made, and that these statements defamed his professional reputation. Twelker, 88 Wn.2d at 475. We held absolute immunity could not be extended to include such statements. Twelker, 88 Wn.2d at 478.

The privilege of immunity is a judicially created privilege founded upon the belief that the administration of justice requires witnesses in a legal proceeding be able to discuss their views without fear of a defamation lawsuit. Twelker, 88 Wn.2d at 476. Absolute immunity was originally confined to judges, lawyers, legislatures in debate, and executive and military personnel when within the scope of the duties of their offices. Twelker, 88 Wn.2d at 476. The scope of absolute privilege has been limited to situations where some power to discipline remains available and to situations where the testimony could be stricken to eliminate statements that exceeded the bounds of permissible conduct. Twelker, 88 Wn.2d at 476. The privilege of absolute witness immunity creates an “extraordinary breadth” of protection and should not be extended absent the existence of compelling public policy justifications. Twelker, 88 Wn.2d at 478.

In 1989, the privilege was extended, and we held an expert witness cannot be found civilly liable for any action done as part of a judicial function. Bruce v. Byrne-Stevens & Assocs. Eng’rs, Inc., 113 Wn.2d 123, 125, 776 P.2d 666 (1989). Until Bruce, the privilege of witness immunity was not a shield to be raised against potential civil liability for professional negligence. We must now determine whether the reasoning of Bruce applies to the present case.

Witness immunity rests on the fact that an individual is a participant in a judicial proceeding. The rule is provided as an “encouragement to make a full disclosure of all pertinent information within their knowledge.” 2 Fowler V Harper et al., The Law of Torts § 5.22, at 187 (2d ed. 1986). [137]*137Immunity was extended beyond eyewitnesses to include expert witnesses because courts realized that forcing an expert witness to face retaliatory lawsuits by those who disagree with the expert’s opinion may cause an expert to be reluctant to appear in litigation. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 114, at 816-17 (5th ed. 1984).

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Bluebook (online)
948 P.2d 828, 134 Wash. 2d 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deatherage-v-examining-board-of-psychology-wash-1997.