                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2001

Hughes v. Long
Precedential or Non-Precedential:

Docket 99-2037




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Filed February 27, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-2037

PETER J. HUGHES, Jr.,

       Appellant

v.

LYNN E. LONG; KATHLEEN LACEY;
PATRICK J. MCHUGH

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 97-cv-03304)
District Judge: The Honorable Harvey Bartle, III

ARGUED December 14, 2000

BEFORE: NYGAARD, and STAPLETON, Cir cuit Judges,
and DEBEVOISE,* District Judge.

(Filed: February 27, 2001)

       Lek Domni, Esq. (Argued)
       Suite 1001
       1429 Walnut Street
       Philadelphia, PA 19102
        Attorney for Appellant



_________________________________________________________________
* Honorable Dickinson Debevoise, District Judge for the United States
District Court for the District of New Jersey, sitting by designation.
       L. Rostaing Tharaud, Esq.
        (Argued for Lynn E. Long)
       Jonathan F. Ball, Esq.
        (Argued for Patrick J. McHugh)
       Marshall, Dennehey, Warner,
        Coleman & Goggin
       1845 Walnut Street
       21st Floor
       Philadelphia, PA 19103
        Attorneys for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge.

This is the second time we have been asked to r esolve
issues stemming from divorce and custody proceedings
involving Peter and Pamela Hughes. In this appeal, Peter J.
Hughes challenges the District Court's grant of summary
judgment, dismissing his civil rights claims under 42
U.S.C. SS 1983 & 1985 and his state law claims against
defendants Lynn Long and Patrick McHugh. Hughes argues
that the District Court erroneously granted defendants
absolute prosecutorial and witness immunity for his civil
rights claims and that the Supreme Court of Pennsylvania's
recent decision in LLMD of Michigan, Inc. v. Jackson-Cross
Co., 559 Pa. 297, 740 A.2d 186 (Pa. 1999), pr ecludes
immunity for his state law claims. We affir m the District
Court's dismissal of Hughes's civil rights claims, although
for reasons different from those set forth by the District
Court;1 we also affirm the District Court's dismissal of
Hughes's state law claims because we predict that, if faced
_________________________________________________________________

1. We may affirm a District Court's judgment on grounds other than
those considered by the District Court itself. See, e.g., Guthrie v. Lady
Jane Collieries, Inc., 722 F.2d 1141, 1145 n. 1 (3d Cir. 1983) ("An
appellate court may affirm a result r eached by the District Court on
different reasons, as long as the record supports the judgment."); PAAC
v. Rizzo, 502 F.2d 306, 308 n. 1 (3d Cir . 1974) ("It is proper for an
appellate court to affirm a correct decision of a lower court even when
that decision is based on an inappropriate gr ound.").

                               2
with the issue, the Pennsylvania Supreme Court would not
extend its holding in LLMD to court-appointed witnesses.

I.

Hughes's claims against Long and McHugh stem fr om an
acrimonious child custody proceeding that took place in the
Court of Common Pleas of Chester County between Hughes
and his former wife, Pamela Hughes. The custody dispute
began when, in the midst of her divorce fr om Hughes,
Pamela filed a Petition for Temporary Custody of the
children. In response to this Petition, the court scheduled
a Conciliation Conference before a Custody Conciliator. The
Custody Conciliator recommended that appellee Long, a
licensed clinical social worker, conduct a full custody
evaluation. The court adopted this recommendation,
ordering Hughes and Pamela to participate in psychological
evaluations with Long. According to the or der, Long was to
report the results of the psychological evaluations to the
court and make any recommendations appr opriate to a
child custody determination. Although the court appointed
Long to conduct the evaluation, Long entered into a private
contract with the parties whereby each agr eed to pay fifty
percent of her fee.

In accordance with the court's order , Long conducted the
evaluation. She interviewed Hughes, Pamela, the children,
and others. She also referred Hughes and Pamela to
Kathleen Lacey, a psychologist who worked with Long in
her custody evaluations, for psychological testing. Because
Lacey was not licensed at the time of the evaluations, she
practiced under the supervision of appellee McHugh, a
licensed clinical psychologist. McHugh did not dir ectly
supervise the tests administered by Lacey, but he did
review the results and approved her r ecommendations.

It is not clear what occurred at the conclusion of the
psychological testing. Apparently, after completing the
psychological tests, Long informally told Hughes her
custody recommendation for the children. For reasons
unexplained, Hughes was dissatisfied with this
recommendation and therefore he hir ed his own expert, Dr.
Gerald Cooke, to evaluate the results of the tests that Long

                               3
and Lacey administered. According to Hughes, Long and
Lacey refused to give Dr. Cooke the information upon which
they based their conclusions, despite repeated requests and
a court order. Hughes claims that, rather than complying,
Long fabricated new data to support her report and that
Lacey and McHugh produced new psychological tests and
results that were more favorable toward Pamela. He
contends that Long, Lacey, and McHugh gave these false
reports to Dr. Cooke and destroyed the original data.

During the custody hearing, Hughes presented his
allegations of fraudulent behavior by Long, Lacey, and
McHugh. All three testified during the hearing and denied
creating false reports, destroying any originals, or
intentionally failing to comply with the court's or der to
release their raw data. Long testified in person and the
depositions of Lacey and McHugh were read. Despite
Hughes's allegations of fraud, the court adopted Long's
formal recommendation and awarded joint custody to
Hughes and Pamela.

Hughes appealed the order of joint custody to the
Superior Court of Pennsylvania but later withdr ew the
appeal. After abandoning his state court appeal, hefiled
suit against the appellees2 in the United States District
Court for the Eastern District of Pennsylvania, alleging
interference with his familial rights in violation of the
Fourteenth Amendment and his civil rights under 42 U.S.C.
SS 1983 and 1985(3). Hughes also alleged the following
state law violations: (1) abuse of legal process; (2)
defamation, false light, and invasion of privacy; (3) civil
conspiracy; (4) fraud; (5) tortious interfer ence with familial
_________________________________________________________________

2. Along with Long and McHugh, Hughes also filed suit against Lacey
and Judge MacElree, who presided over the underlying custody
proceeding in the Chester County Court of Common Pleas. Lacey,
however, refused to file a response to his complaint and, therefore, the
District Court entered a default judgment against her. Judge MacElree
filed a Motion to Dismiss arguing that he was entitled to absolute
judicial immunity. The District Court granted his motion to dismiss and,
on appeal, we affirmed. See Hughes v. MacElree, 1997 WL 733609, at *1
(E.D. Pa. Nov. 13, 1997), rev'd on other grounds, 168 F.3d 478 (3d Cir.
1998). As such, neither Lacey nor Judge MacElr ee are parties to this
appeal.

                                4
relations; (6) breach of contract; and (7) breach of implied
contract. In response to Hughes's complaint, appellees filed
their respective motions to dismiss. The District Court
granted those motions on the basis of the Rooker -Feldman
doctrine, which holds that a federal court does not have
subject-matter jurisdiction to review the final adjudications
of a state's highest court or to evaluate constitutional
claims that are inextricably intertwined with the state
court's custody proceeding. In dismissing Hughes's claims,
the court relied solely on this doctrine and did not rule on
appellees' arguments that they are entitled to absolute
prosecutorial immunity pursuant to our decision in Ernst v.
Child & Youth Servs., 108 F.3d 486 (3d Cir. 1997).

On appeal, we reversed the District Court with respect to
its holding that the Rooker-Feldman doctrine warranted a
dismissal of Hughes's claims. See Hughes v. MacElree, 168
F.3d 478 (3d Cir. 1998). We also refused to affirm the
dismissal of Hughes's complaint on the alter native basis
that Long and McHugh are entitled to absolute
prosecutorial immunity under Ernst . We found that an
evidentiary record of appellees' pr ecise functions with
respect to their participation in the underlying custody case
had not been developed.

On remand, Long and McHugh filed a motion for
summary judgment, reasserting their argument that they
are entitled to prosecutorial immunity under Ernst. The
District Court granted Long's and McHugh's motions,
agreeing that they are entitled to absolute prosecutorial
immunity from Hughes's SS 1983 and 1985 claims.
Alternatively, the court held that Long and McHugh were
entitled to witness immunity. The court also held that
under Pennsylvania law, Long and McHugh were entitled to
immunity from Hughes's supplemental state law claims. On
December 9, 1999, Hughes filed a timely Notice of Appeal.

II.

Hughes first argues that the District Court erred by
holding that Long and McHugh are entitled to absolute
prosecutorial immunity pursuant to our holding in Ernst.
He argues that appellees did not function as"advocates" for

                               5
the "state" like prosecutors and child welfare workers.
Further, he argues that, in contrast to prosecutors and
child welfare workers who initiate criminal and dependency
proceedings, appellees did not initiate the custody
proceedings. We have jurisdiction pursuant to 28 U.S.C.
S 1291 and exercise plenary review over a District Court's
grant of summary judgment. See Mardell v. Harleysville Life
Ins. Co., 31 F.3d 1221, 1224 (3d Cir . 1994).

Section 1983 provides that "[e]very person who, under
color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects . . . any citizen of the
United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws shall be liable to the party injured." 42 U.S.C. S 1983.
On its face, it contains no defense of official immunity. In
Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788
(1951), however, the Supreme Court held that Congress did
not intend S 1983 to abrogate immunities"well grounded in
history and reason." In determining whether an immunity
meets this standard, a court must first deter mine whether
"an official was accorded immunity fr om tort actions at
common law when the Civil Rights Act was enacted in
1871." Malley v. Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092,
1095 (1986). If a common-law counterpart is found, a court
must next determine whether S 1983's history or purposes
nonetheless discourage recognition of the same immunity
in S 1983 actions. See id.

Even if an official did not enjoy absolute immunity at
common law, she may still be entitled to immunity if she
performs "special functions" that are similar or analogous
to functions that would have been immune when Congr ess
enacted S 1983. See Butz v. Economou, 438 U.S. 478, 406,
98 S.Ct. 2894, 2911 (1978). This "functional appr oach"
looks to the nature of the function per formed, not the
identity of the actor who performed it and evaluates the
effect that exposure to particular for ms of liability would
likely have on the appropriate exercise of that function. See
Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542
(1988). The official seeking immunity bears the burden of
showing that it is justified by the function in question. See
id.

                               6
Under its historical and functional approach, the
Supreme Court has recognized the defense of absolute
immunity from civil rights suits in several well-established
contexts involving the judicial process. This immunity has
given functionaries in the judicial system the ability to
perform their tasks and apply their discretion without the
threat of retaliatory S 1983 litigation. Thus, a judge acting
in his judicial capacity is absolutely immune fr om suits,
unless he acts without any colorable claim of jurisdiction.
See Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct.
1099, 1104-05 (1978); Pierson v. Ray, 386 U.S. 547, 553-
55, 87 S.Ct. 1213, 1217-18 (1967). Witnesses, including
public officials and private citizens, are immune from civil
damages based upon their testimony. See Briscoe v. LaHue,
460 U.S. 325, 341, 345-46, 103 S.Ct. 1108, 1118, 1120-21
(1983). The Court has also granted absolute immunity to
prosecutors for activities that are "intimately associated
with the judicial process" such as initiating and pursuing a
criminal prosecution and presenting the state's case in
court. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984,
994-95 (1976). A prosecutor's administrative and
investigative duties, however, are not immune. See id. at
430-31, 96 S.Ct. at 994-96.

We have provided social workers absolute immunity for
actions involving the initiation and prosecution of child
custody or dependency proceedings. In Er nst v. Child &
Youth Servs. of Chester County, 108 F .3d 486 (3d Cir.
1997), we held that child welfare workers ar e entitled to
absolute immunity for their actions on behalf of the state in
preparing for, initiating, and pr osecuting dependency
proceedings, and that this immunity was br oad enough to
include the formulation and presentation of
recommendations to the court in the course of the
proceedings. In reaching this conclusion, we first reasoned
that, similar to prosecutors who are r esponsible for the
initiation of criminal proceedings, child welfare workers are
responsible for bringing dependency proceedings and must
exercise independent judgement in deter mining when to
bring such proceedings. We also noted that, like
prosecutors, child welfare workers often have to make
decisions in a short amount of time and with limited
information. See id. at 495-96.

                               7
Additionally, we explained that child services workers are
like prosecutors because they are " `advocates for the
State' " and serve in a function " `intimately associated with
the judicial phase of the [child protection] process.' " Id.
(quoting Imbler, 424 U.S. at 430-31 n.33, 96 S.Ct. at 995,
996 n.33). Specifically, we noted that child welfare workers
are directly responsible for r ecommendations made to the
court in dependency proceedings and for their actions in
determining those recommendations and communicating
them to the court. We concluded that this dir ect
responsibility was similar to a prosecutor's in criminal
prosecutions. See id.

Next, we reasoned that public policy considerations
support absolute immunity for child welfare workers. See
id. We noted that the fear of personal liability would
compromise a worker's independent judgement, r endering
her overly cautious in dangerous situations where
immediate action on behalf of a child is needed. W e also
noted that the likelihood of suits in retaliation for the
initiation of dependency proceedings was gr eat, given a
parent's predictable resentment of state interference in the
parent-child relationship. Finally, in concluding that child
welfare workers deserve absolute immunity, we r ecognized
that alternative mechanisms exist to pr event
unconstitutional conduct by child welfare workers. These
mechanisms include appellate review of a judge's decision
in a dependency hearing and agency supervision of a child
welfare worker. See id.

Here, the District Court held that the functions of Long
and McHugh in the child custody proceeding wer e similar
to roles of prosecutors and child welfar e workers. According
to the court, even though Long and McHugh wer e initially
impartial fact-finders, once they arrived at a
recommendation they became "de facto advocates for their
recommendations." We disagree and hold that Long and
McHugh enjoy judicial immunity because they acted as
"arms of the court," similar to a guar dian ad litem or a
court-appointed doctor or psychologist, a non-judicial
person who fulfills a quasi-judicial role at the court's
request.

                               8
To explain our analysis, we must examine the precise
functions of Long and McHugh in the custody pr oceedings.
As indicated above, Long was the court-appointed custody
evaluator. In that role, she interviewed Hughes, his former
wife, their children, and other relevant parties. She also
administered parenting tests to Hughes and his former wife
and sent them to Lacey for psychological testing. As
directed by the court, Long made a recommendation
regarding a custody arrangement for the Hughes children.
McHugh's role was slightly differ ent. He was not appointed
by the court, but as Lacey's supervisor, he r eviewed and
verified the psychological test results and the reports Lacey
prepared for Long. Thus, he assisted in the completion of
Long's testing, which was an essential and primary
component of Long's recommendation. Without his
assistance, Long could not have completed the court-
ordered psychological evaluations. Like Long, McHugh also
reported his findings to the court.

Although Long and McHugh acted like prosecutors and
child welfare workers in formulating and presenting
recommendations to the court, their roles differed in other
significant respects. Most notably, Long and McHugh did
not initiate the custody proceeding. Indeed, the court
appointed Long after the proceeding began and, thus, Long
had no discretion to initiate or "pr osecute" the custody
proceeding. Similarly, McHugh only became involved after
the proceedings began.

Next, in formulating and making their r ecommendations
to the court, Long and McHugh were not "advocates of the
State" like prosecutors and child welfar e workers. Rather
than making arguments, Long and McHugh mer ely offered
their opinions, based upon fact-gathering, in or der to aid
and inform the family court. Long's contract states:
"[w]henever possible, I make every reasonable attempt to
serve as a court appointed impartial examiner , rather than
an advocate in custody litigation." J.A. at 1695. Thus, Long
and McHugh functioned more like witnesses or assistants
to the court than advocates.

Finally, although not a dispositive differ ence, Long and
McHugh were not acting under any time constraints and
were not forced to make any "snap judgments" based on

                               9
incomplete information, as is often the case with
prosecutors and child welfare workers. Rather, Long and
McHugh took six months to complete their evaluations and
did so in a deliberate, methodical, and thor ough fashion.
Although the District Court discounts this dif ference, we
expressly recognized it as a factor in holding that child
welfare workers are analogous to pr osecutors in Ernst. See
108 F.3d at 496.3

Although not cloaked in prosecutorial immunity, Long
and McHugh are entitled to judicial immunity because they
acted as "arms of the court" and per formed functions
integral to the judicial process. Specifically, the court
appointed Long to gather information, conduct an
evaluation, and make a recommendation to aid the custody
determination. McHugh, although not dir ectly appointed,
was indirectly assigned this task because his r eview of the
court-ordered psychological evaluations was necessary for
their completion. In essence, Long's and McHugh's
functions were to engage in neutral fact-finding and advise
the court. These functions are intimately r elated and
essential to the judicial process because they aid and
inform the court in its discretionary duties. In the absence
of the extensive fact-finding and recommendations of child-
custody evaluators, courts would be requir ed to make
custody recommendations with little, if any, unbiased
information about the family. Given this integral
relationship to the court, we hold that Long and McHugh
are entitled to judicial immunity.

Long's and McHugh's similarity to a guardian ad litem,
an individual who enjoys judicial immunity, supports this
conclusion. A guardian ad litem is a person appointed by
the court in custody proceedings to serve as an investigator
and gather information about the parents and the children
and report back to the court recommending which parent
_________________________________________________________________

3. Moreover, the public policy considerations enumerated by the District
Court are an insufficient basis for granting prosecutorial absolute
immunity. Courts "do not have license to establish immunities from
S 1983 actions in the interests of what[they] judge to be sound public
policy." Buckley v. Fitzsimmons, 509 U.S. 259, 278, 113 S.Ct. 2606,
2618 (1993).

                               10
should receive custody. See Cok v. Cosentino, 876 F.2d 1,
3 (1st Cir. 1989) ("A GAL typically gathers information,
prepares a report and makes a r ecommendation to the
court regarding a custody disposition."); Raven C. Lidman,
The Guardian Ad Litem in Child Custody Cases: The
Contours of Our Judicial System Stretched Beyond
Recognition, 6 GEO. MASON L. REV. 256 (1998) (same).
Characterized as "agents" of the court, Cok, 876 F.2d at 2-
3, and "actual functionar[ies] or ar m[s] of the court,"
guardian ad litems aid and inform the court. Gardner v.
Parson, 874 F.2d 131, 146 (3d Cir . 1989) ("[a] guardian ad
litem would be immune in exercising such functions as . . .
making reports and recommendations to the court in which
the guardian acts as an actual functionary or arm of the
court."). Because of this intimate relationship to the court
and the judicial process, several courts have held that
when performing certain delegated duties, guardian ad
litems are entitled to absolute judicial immunity. See
Gardner, 874 F.2d at 145; Cok , 876 F.2d at 2-3; see also
Myers v. Morris, 810 F.2d 1437 (8th Cir . 1987), rev'd on
different grounds, Bur ns v. Reed, 500 U.S. 478, 111 S.Ct.
1934 (1991). Given the striking similarities between the
functions of Long and McHugh and the functions of a
guardian ad litem, Long and McHugh are entitled to the
same judicial immunity.

Moreover, Long and McHugh perfor med functions similar
to court-appointed doctors and psychiatrists, who have also
received absolute judicial immunity. For example, in
McArdle v. Tronetti, 961 F .2d 1083 (3d Cir. 1992), we held
that a prison doctor who conducted a psychiatric exam on
an inmate at the request of the court had absolute judicial
and witness immunity. Specifically, we reasoned that the
psychiatrist's conduct in completing the exam and
furnishing a written report to the court at the request was
entitled to absolute judicial immunity because the
psychiatrist was "functioning as an arm of the court." Id. at
1085. We also held that the psychiatrist's r eport and
recommendation to the court constituted testimony
protected by absolute witness immunity.

Similarly, in Moses v. Parwatikar, 813 F .2d 891 (8th Cir.
1987), the Eighth Circuit granted absolute judicial and

                                11
witness immunity to a psychiatrist appointed by the court
to conduct a competency evaluation. The psychiatrist's
appointed duties consisted of examining the plaintif f and
reporting his findings to the court. The court held that
these duties were "functions essential to the judicial
process." Id. at 892. It went on to state that the
psychiatrist's function was analogous to a witness in a
judicial proceeding. Accordingly, the court granted absolute
immunity to ensure that the " `paths which lead to the
ascertainment of truth . . . be left as free and unobstructed
as possible.' " Id. (quoting Briscoe v. LaHue, 460 U.S. 325,
333, 103 S.Ct. 1108, 1114 (1983)).

Finally, in Meyers v. Contra Costa County Dep't of Social
Servs., 812 F.2d 1154 (9th Cir. 1987), the Ninth Circuit
granted absolute judicial immunity to counselors employed
by a family court. The counselors' duties included
mediation of custody and visitation disputes, investigating
matters pertaining to such disputes, and providing reports
to the court. The Ninth Circuit affir med the District Court's
holding that the counselors were "officers of the court,"
reasoning that they were "perfor ming a judicial function at
the direction of the court." Id. at 1159. Given the nature of
their duties, the counselors were granted "quasi-judicial"
immunity.

These cases are factually identical to ours and support
our conclusion that Long and McHugh are entitled to
judicial rather than prosecutorial immunity. Accordingly,
we affirm the District Court's grant of summary judgment
motion in favor of Long and McHugh dismissing Hughes's
SS 1983 & 1985 claims on the basis of judicial immunity.4

III.

Hughes next contends that the Pennsylvania Supr eme
Court's holding in LLMD of Michigan, Inc. v. Jackson-Cross
_________________________________________________________________

4. Because we hold that judicial immunity insulates the entirety of
Long's and McHugh's conduct from liability pr emised on alleged SS 1983
& 1985 violations, we need not address the District Court's alternative
holding that Long and McHugh are entitled to summary judgment based
on witness immunity.

                               12
Co., 559 Pa. 297, 740 A.2d 186 (Pa. 1999), which was
decided several days after the District Court's ruling,
suggests that Long and McHugh are not entitled to witness
immunity for his state law claims. He asks us to r eview
their immunity claims in light of LLMD, which holds that
witness immunity does not bar professional malpractice
actions against private experts who negligently for mulate
their opinions. See LLMD, 559 Pa. at 306, 740 A.2d at 191.
Based on LLMD, he asks us to predict that the
Pennsylvania Supreme Court will extend the exception to
court-appointed experts and causes of action outside of
negligence. Given the unique and essential r ole of court-
appointed witnesses, we believe that, if faced with the
issue, the Pennsylvania Supreme Court would confine its
holding in LLMD to privately retained experts sued for
professional malpractice.

In predicting how a matter would be decided under state
law we examine: (1) what the Pennsylvania Supr eme Court
has said in related areas; (2) the decisional law of the
Pennsylvania intermediate courts; (3) federal appeals and
district court cases interpreting state law; and (4) decisions
from other jurisdictions that have discussed the issues we
face here. See Boyanowski v. Capital Ar ea Intermediate
Unit, 215 F.3d 396, 406 (3d Cir. 2000). As the appellant
indicates, LLMD provides the most r ecent statement from
the Pennsylvania Supreme Court on the witness immunity
doctrine and its contours.

In LLMD, the Pennsylvania Supreme Court carved out an
exception to the state's long standing principle that
communications which are "issued in the r egular course of
judicial proceedings and which are pertinent and material
to the redress or relief sought" are immune from civil
liability. Post v. Mendel, 510 Pa. 213, 221, 507 A.2d 351,
355 (Pa. 1986). LLMD involved an expert witness hired by
a plaintiff to calculate and testify r egarding his lost profits
resulting from a breach of contract. During cross-
examination of the plaintiff 's expert, defense counsel
established that the expert's lost profits calculation
contained an error that completely under mined the basis
for the damage amount. Because the expert had not
calculated the damages himself, he was unable to correct

                                13
the error and, as a result, the trial judge struck his
testimony. The day after the expert's testimony was
stricken, the plaintiff accepted a settlement offer of
$750,000. Subsequently, the expert provided a corrected
computation of lost profits that indicated $2.7 million in
damages. The plaintiff then filed a suit against the expert,
asserting causes of action for breach of contract and
professional malpractice; the expert claimed immunity
under the witness immunity doctrine. See LLMD , 559 Pa. at
187-189, 740 A.2d at 299-301.

Before ruling on the expert's defense, the LLMD court
reviewed the public policy considerations underlying the
judicial and witness immunity doctrines. The court stated,
" `[t]he privilege is also extended to parties to afford freedom
of access to the courts, to witnesses to encourage their
complete and unintimidated testimony in court, and to
counsel to enable him to best represent his client's
interests.' " Id. at 189, 740 A.2d at 302 (quoting Binder v.
Triangle Publ'n, Inc. 275 A.2d 53 (1971)). Quoting extensive
language from Briscoe v. LaHue, the Supreme Court's
seminal witness immunity case, the court also explained
that " `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 fact finder of fact of candid, objective, and
undistorted evidence.' " Id. (quoting Briscoe v. LaHue, 460
U.S. 325, 103 S.Ct. 1108 (1983)).

The court recognized the continuing significance of these
policy concerns but nonetheless concluded that extending
witness immunity to actions arising from the negligent
formulation of an opinion would not addr ess these
concerns. See id. at 191, 740 A.2d at 306. Rather, allowing
liability for this sort of negligence would enhance the
judicial process "by requiring that an expert render services
to the degree of care, skill and pr oficiency commonly
exercised by the ordinarily skillful, car eful and prudent
members of their profession." Id. The court, however, was
careful to point out the limits of its holding. It stressed that
experts were still immune from liability premised on the
substance of an expert's opinion. Further , the court

                               14
explained that an expert witness may not be held liable
simply because his or her opinion is challenged by another
expert or authoritative source. See id. Additionally, the
court noted that because the sole issue befor e it was the
liability of private experts, its opinion did not address
exceptions to the witness immunity doctrine for court-
appointed witnesses. See id. at 301 n.4, 740 A.2d at 188
n.4.

Although the LLMD court did not expr essly prohibit the
applicability of its exception to witness immunity to court-
appointed witnesses, we believe that, if faced with the
issue, the Pennsylvania Supreme Court would not disturb
the complete immunity that court-appointed witnesses
currently enjoy. See, e.g., Clodgo v. Clodgo, 411 Pa. Super.
267, 601 A.2d 342 (Pa. Super. Ct. 1992) (holding that
witness immunity doctrine insulates a court-appointed
witness from liability premised upon medical malpractice).
Our conclusion is largely premised on the differences
between privately retained experts, which wer e at issue in
LLMD, and court-appointed experts, which ar e at issue in
this case. As we emphasized earlier, court-appointed
experts hold a unique role in judicial pr oceedings. Because
they work on behalf of the court rather than any one party,
court-appointed experts provide unbiased, neutral
information and recommendations and aid the court in its
decision-making process. This neutral infor mation is
essential to the court, which cannot make necessary
observations and gather relevant facts without assistance.
Thus, it is crucial to the judicial process that court-
appointed witnesses are free to for mulate and make
recommendations unhindered by the fear of liability.
Without such immunity, these "advisors" may be reluctant
to assist the court, thereby depriving the court of its sole
source of neutral information.

While privately retained experts also pr ovide information
to the court, they differ in that they enter into a private
contract with a party and typically receive compensation for
their testimony from that party. Therefor e, to some extent,
they are expected to provide a recommendation that favors
their client. See FED. R. CIV. P. 26(a)(2)(B) (requiring a party
to disclose information concerning its expert witness

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including the compensation to be paid for the study and
testimony and a listing of any other cases in which the
witness has testified as an expert at trial or by deposition
within the preceding four years); United States v. 412.93
Acres of Land, 455 F.2d 1242, 1247 (3d Cir. 1972) (holding
that the District Court properly permitted the introduction
of an expert witness's per diem fee in order to show his
possible bias); Michelle Morgan Ketchum, Experts:
Witnesses for the Persecution? Establishing an Expert
Witness's Bias Through the Discovery and Admission of
Financial Records, 63 UMKC L. REV. 133, 157-59 (1994)
(discussing the legal community's general distrust of expert
witnesses and the resulting discovery r equests for discovery
of an expert witness's financial recor ds in order to establish
interest, bias, or prejudice). Although private experts serve
an important role and aid the court in "its path to truth,"
they are not neutral "advisors" to the court and thus
should not be subject to the same treatment as court-
appointed experts. In sum, the significant and distinct
advisory role of court-appointed experts persuades us that
the Pennsylvania Supreme Court will continue to afford
them full immunity, despite its exception in LLMD.

Moreover, we believe that LLMD's exception to immunity
for the negligent formulation of an opinion is confined to
privately retained experts because they owe their clients a
duty of reasonable care by virtue of their contractual
relationship. As explained by the LLMD court, the purpose
of its witness immunity exception is to ensur e that expert
witnesses "render services to the degr ee of care, skill and
proficiency commonly exercised by the or dinarily skillful,
careful and prudent members of their pr ofession." LLMD,
559 Pa. at 307, 740 A.2d at 191. Here, we have neither a
private expert nor a cause of action for professional
malpractice, both of which compelled the exception in
LLMD. Rather we have a court-appointed witness whose
role in the judicial proceedings dif fers from a private expert.
Further, we have state law claims for abuse of legal
process, defamation, false light, invasion of privacy, civil
conspiracy, fraud, tortious interference with familial
relations, breach of contract, and br each of implied
contract, which do not parallel a cause of action for
negligence. Therefore, we believe that LLMD's exception to

                               16
the witness immunity doctrine has limited applicability and
does not abrogate Long's and McHugh's immunity from
Hughes's state law claims.

IV.

In sum, Long's and McHugh's duties were similar to
those of a guardian ad litem or court-appointed psychiatrist
or doctor, both of whom are "agents" or "arms" of the court.
Therefore, we will affirm the District Court's grant of
summary judgment with respect to appellant'sSS 1983 and
1985 claims on the basis of judicial immunity. Mor eover,
we affirm the District Court's grant of summary judgment
with respect to appellant's state law claims because we
believe that, if faced with the issue, the Pennsylvania
Supreme Court will not extend LLMD's exception to witness
immunity to court-appointed witnesses.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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