                                                   131 Nev., Advance Opinion
                       IN THE SUPREME COURT OF THE STATE OF NEVADA
                                                                                12-

                VIVIAN MARIE LEE HARRISON,                           No. 64569
                Appellant,
                vs.
                NORTON A. ROITMAN, M.D.,                                         DEC 17 2015
                Respondent.
                                                                                ;:t
                                                                               IPACTIE K. UN .!:
                                                                            CLE? ,' i p1.J  EZ•
                                                                            DYLLA: VIAL;
                           Appeal from a district court order dismissing a mett cal
                malpractice action. Eighth Judicial District Court, Clark County;
                Kenneth C. Cory, Judge.
                           Affirmed.

                John Ohlson, Reno,
                for Appellant.

                John H. Cotton & Associates, Ltd., and John H. Cotton and John J.
                Savage, Las Vegas,
                for Respondent.




                BEFORE THE COURT EN BANC,

                                                OPINION
                By the Court, DOUGLAS, J.:

                           In this opinion, we consider whether a party-retained expert
                providing a psychiatric analysis of an adverse party during divorce
                proceedings may later be sued by the adverse party based on statements
                made in his written psychiatric analysis report. In accordance with long-
                established precedent extending absolute immunity to judicial
                participants, we recognize that party-retained expert witnesses have
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                   absolute immunity from suits for damages arising from statements made
                   in the course of judicial proceedings.

                                     FACTS AND PROCEDURAL HISTORY

                               This action arose from a divorce proceeding to which Vivian
                   Harrison (Vivian) and Kirk Harrison (Kirk) were parties. During the
                   divorce proceeding, Kirk hired psychiatrist Norton Roitman, M.D., to
                   conduct a psychiatric analysis of his then-wife, Vivian. Despite never
                   examining or meeting Vivian, Dr. Roitman prepared and submitted to the
                   court a written report diagnosing Vivian with a personality disorder and
                   concluding that her prognosis was poor.
                               Consequently, Vivian filed a complaint against Dr. Roitman,
                   alleging that the statements made in his report constituted medical
                   malpractice, intentional infliction of emotional distress, negligent
                   infliction of emotional distress, and civil conspiracy. According to Vivian,
                   Dr. Roitman's statements were founded solely on information obtained
                   from Kirk, and his diagnosis, given without meeting or examining her, fell
                   below the standard of care for a psychiatrist.
                               Dr. Roitman subsequently filed an NRCP 12(b)(5) motion to
                   dismiss, which was granted by the district court. The district court
                   concluded that, as a witness preparing an expert report in connection with
                   the matter in controversy, Dr. Roitman was absolutely immune from
                   liability for each of Vivian's causes of action. Vivian appealed.
                                                  DISCUSSION
                               An order granting a motion to dismiss pursuant to NRCP
                   12(b)(5) is subject to a rigorous review. Buzz Stew, LLC v. City of N. Las
                   Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). This court
                   recognizes all factual allegations in the complaint as true and draws all
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                   inferences in favor of the complainant. Id. at 228, 181 P.3d at 672. Thus,
                   Vivian's complaint should only be dismissed if it appears beyond a doubt
                   that no factual allegations, taken as true, would entitle her to relief.   Id.
                   In this case, the validity of the district court's order granting dismissal
                   turns on whether it correctly applied the doctrine of absolute immunity,
                   which is a question of law that we review de novo. See Fink v. Oshins, 118
                   Nev. 428, 432, 49 P.3d 640, 643 (2002).
                               On appeal, Vivian contends that the district court improperly
                   dismissed her complaint because Nevada limits the availability of an
                   absolute immunity defense to claims for defamation. Because her
                   complaint alleges medical malpractice rather than defamation, she argues
                   that Dr. Roitman's defense of absolute immunity does not apply. In
                   opposition, Dr. Roitman contends that he is entitled to the protection of
                   absolute immunity because he made the challenged statements as an
                   expert participating in a judicial proceeding. He further contends that his
                   claim of absolute immunity is not contingent upon the type of action
                   brought by Vivian.
                               Absolute immunity, a doctrine rooted in the common law, "is a
                   broad grant of immunity not just from the imposition of civil damages, but
                   also from the burdens of litigation, generally."   State v. Second Judicial
                   Dist. Court (Ducharm), 118 Nev. 609, 615, 55 P.3d 420, 423 (2002) (citing
                   James L. Knoll, Protecting Participants in the Mediation Process: The Role
                   of Privilege and Immunity, 34 Tort & Ins. L.J. 115, 122 (1998)). Questions
                   of immunity are driven by public policy, requiring a balancing of "the
                   social utility of the immunity against the social loss of being unable to
                   attack the immune defendant."       Id. at 614-15, 55 P.3d at 423. The
                   doctrine is further 'justified and defined by the functions it protects and

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                  serves." Rolon v. Henneman, 517 F.3d 140, 145 (2d Cir. 2008) (quoting
                  Forrester v. White, 484 U.S. 219, 227 (19881); see also Briscoe v. LaHue,
                  460 U.S. 325, 342 (1983) ("[O]ur cases clearly indicate that immunity
                  analysis rests on functional categories."). Thus, in analyzing this issue, we
                  are mindful that "functional categories, not. . . the status of the
                  defendant' control[s] the immunity analysis." Rolon, 517 F.3d at 145.
                               The United States Supreme Court has applied this "functional
                  approach" to resolving questions of immunity. See, e.g., Briscoe, 460 U.S.
                  at 335-36 (determining by application of the functional approach that a
                  testifying police officer was protected by absolute witness immunity
                  because while testifying he served the same functions as other witnesses);
                  Buckley v. Fitzsimmons, 509 U.S. 259, 259 (1993) (applying the functional
                  approach to determine whether qualified or absolute immunity applied to
                  state actors accused of malicious prosecution).' This court applied the
                  Supreme Court's functional approach in Ducharm to reach the conclusion
                  that child protective service agents, integral constituents of the court
                  process, act under the protection of absolute immunity when they provide
                  information to the court. 2 118 Nev. at 615-19, 55 P.3d at 424-26. We



                        'In his concurrence, Justice Kennedy squarely rejects an analysis
                  supplemented by bright-line rules rather than one established entirely on
                  function. 509 U.S. at 289 (Kennedy, J., concurring). He explains that
                  "ensuring parity in treatment among. . . actors engaged in identical
                  functions" was the precise goal of the functional analysis. Id. at 288-89.

                        2 1nDucharm, we ultimately held that the district court did not err
                  by refusing to dismiss the claims based on a defense of absolute immunity
                  because the alleged negligence occurred after the court order was entered.
                  118 Nev. at 620, 55 P.3d at 427.



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                 similarly employ the functional approach here to determine whether the
                 social utility of recognizing absolute immunity for party-retained experts
                 is sufficiently great to justify their pardon from the burdens of litigation.
                 We are convinced that, much like the child protective service agents in
                 Ducharm, party-retained expert witnesses play an integral role in our
                 judicial prows s. 3
                 The functional approach
                               The functional approach is made up of three separate
                 inquiries. Id. at 616, 55 P.3d at 424. First, we ask "whether the [person
                 seeking immunity] performed functions sufficiently comparable to those of
                 [persons] who have traditionally been afforded absolute immunity at
                 common law." Id.; see also Butz v. Economou, 438 U.S. 478, 513 (1978)
                 (comparing the role of a federal hearing examiner with the role of a judge
                 and concluding that they are "functionally comparable"). Second, we
                 consider "whether the likelihood of harassment or intimidation by
                 personal liability [is] sufficiently great to interfere with the [person's]
                 performance of his or her duties." Ducharm, 118 Nev. at 616, 55 P.3d at
                 424; see also Butz, 438 U.S. at 513 (concluding that the fractious nature of
                 adjudications within a federal administrative agency, and the likelihood of
                 harassing litigation evolving therefrom, are similar to the judicial
                 process). Third, we ask "whether procedural safeguards exist in the
                 system that would adequately protect against [illegitimate] conduct by the
                 [person seeking immunity]." Ducharm, 118 Nev. at 616, 55 P.3d at 424-25


                       3 See
                           also Briscoe, 460 U.S. at 345-46 (noting that the participation of
                 witnesses "in bringing the litigation to a just—or possibly unjust—
                 conclusion is . . . indispensable").



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                (citing Caroline Turner English, Stretching the Doctrine of Absolute Quasi-
                Judicial Immunity: Wagshal v. Foster, 63 Geo. Wash. L. Rev. 759, 765-66
                (1995)); see also Butz,     438 U.S. at 513 (concluding that federal
                administrative law requires many of the same safeguards as the judicial
                process and extending immunity to persons performing adjudicatory
                functions within federal agencies).
                      Immunity at common law
                            At common law, "Mlle immunity of parties and witnesses from
                subsequent damages liability for their testimony in judicial proceedings
                was well established."    Briscoe, 460 U.S. at 330-31 (footnote omitted)
                (citing Cutler v. Dixon (1585) 76 Eng. Rep. 886; 4 Co. Rep. 14b.; Anfield v.
                Feverhill (1614) 80 Eng. Rep. 1113; 1 Ro Rep. 61; Henderson v. Broomhead
                (1859) 157 Eng. Rep. 964, 968; 4 M & N. 569). Quoting a 19th century
                court, the United States Supreme Court reasoned that "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." Id. at 332-33 (quoting Calkins v. Sumner,
                13 Wis. 193, 197 (1860)). The Court further explained that "[a] witness's
                apprehension of subsequent damages liability might induce two forms of
                self-censorship." Id. at 333. First, a witness may be reluctant to present


                      4As noted, Briscoe extended witness immunity to testifying police
                officers. 460 U.S. at 346. Justice Marshall dissented. Id. Notably, he
                argued that support for witness immunity at common law was not as well-
                recognized as the majority presumed. Id. at 363 (Marshall, J., dissenting).
                Nonetheless, the U.S. Supreme Court has continued to recognize witness
                immunity as a well-established, common-law principle. See, e.g., Forrester
                v. White, 484 U.S. 219, 226 (1988).



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                 testimony due to fear of subsequent damages liability. Id. Second, even if
                 a witness makes it to the stand, he may color his testimony as a
                 consequence of the same fear. Id. In particular, "[al 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."      Id. Rather than
                 subject witnesses to potential liability for their statements, "the truth-
                 finding process is better served if the witness's 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."             Id. at 333-34 (internal quotation
                 omitted); see also Imbler v. Pachtman, 424 U.S. 409, 439 (1976) (White, J.,
                 concurring) (stating that to find where the truth lies, a witness "must be
                 permitted to testify without fear of being sued if his testimony is
                 disbelieved"). The common law's protection for witnesses is therefore "a
                 tradition ... well grounded in history and reason." Briscoe, 460 U.S. at
                 334.
                        The looming threat of liability
                              We next consider whether harassment or intimidation by
                 threat of personal liability may interfere with a party-retained expert's
                 duties. As to experts appointed by the court, we have concluded that
                 "[e]xposure to liability could deter their acceptance of court appointments
                 or color their recommendations." Duff v. Lewis, 114 Nev. 564, 569, 958
                 P.2d 82, 86 (1998) (internal quotation omitted). When we recognized
                 immunity for court-appointed experts, we offered that our purpose was to
                 "preserve the . . . truthfulness of critical judicial participants without
                 subjecting them to the fear and apprehension that may result from a
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                threat of personal liability." Id. at 568-69, 958 P.2d at 85. Our decision to
                extend absolute immunity, then, removed the possibility that court-
                appointed experts would become a "lightning rod for harassing litigation."
                Id. at 569, 958 P.2d at 86 (internal quotation omitted).
                            After considering the threat of liability posed to court-
                appointed experts together with the threat faced by party-retained
                experts, we conclude that the threat faced by party-retained experts is as
                great as, or greater than, the threat to court-appointed experts, for whom
                we have previously recognized absolute immunity            See, e.g., id. at 571,
                958 P.2d at 87 (recognizing immunity for a court-appointed psychologist
                making a child custody recommendation). Both classes of experts,
                notwithstanding source of hire, risk exposure to lawsuits when providing
                expert opinions as participants in contentious judicial proceedings.         See
                Butz, 438 U.S. at 512 (explaining that devoid of absolute immunity,
                judicial participants risk exposure to liability). Court-appointed experts,
                however, are afforded the cloak of neutrality associated with their
                appointments.    See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting that
                court-appointed experts' purpose is to act in an objective and independent
                manner). In contrast, party-retained experts, like the often imposed label
                "hired gun" denotes, are strongly associated with the hiring party. And as
                a consequence of their relationship with the hiring party, the hired gun
                will likely share in the threat of liability arising from the losing party's
                animus. As the Butz Court explained: "[Clontroversies sufficiently intense
                to erupt in litigation are not easily capped by a judicial decree. The loser
                in one forum will frequently seek another, charging the participants in the
                first with [unlawful] animus." 438 U.S. at 512. Accordingly, to grant
                absolute immunity to court-appointed experts, who might avoid a losing

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                   party's animus by demonstrating objectivity, but to refuse it to party-
                   retained experts, who likely face greater animus by association, would be
                   to expose party-retained experts as a "lightning rod for harassing
                   litigation."    Duff, 114 Nev. at 569, 958 P.2d at 86 (quoting Lavit v.
                   Superior Court, 839 P.2d 1141, 1144 (Ariz. Ct. App. 1992)).
                                  We further conclude that the looming threat of liability would
                   interfere with party-retained experts' duties. The potential for liability
                   could encumber access to experts in two ways. First, party-retained
                   experts would be discouraged from accepting retainers. See id. at 570, 958
                   P.2d at 86 (noting that exposure to liability could deter court-appointed
                   experts from accepting appointments). Second, experts would be forced to
                   carry insurance or set retainers exorbitantly high to warrant the risk of
                   taking the stand, putting their price tag out of reach for many parties.
                   The Washington Supreme Court explained- "[I]mposing civil liability on
                   expert witnesses would discourage anyone who is not a full-time
                   professional expert witness from testifying. Only professional witnesses
                   will be in a position to carry insurance to guard against such liability."
                   Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc.,     776 P.2d 666, 670 (Wash.
                   1989). Even if a party is able to retain an expert who dares to risk
                   collateral suit by taking the stand, and is additionally able to afford the
                   expert's price tag, the retained expert may dilute or distort disagreeable
                   conclusions to reduce the risk of liability.   See Briscoe, 460 U.S. at 332
                   (noting that the threat of liability would cause witnesses to distort candid
                   opinions). Thus, we conclude that to permit collateral actions against
                   party-retained experts based on statements made during judicial
                   proceedings would be to discourage candid expert opinions and to suppress
                   access. See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting that exposure of

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                court-appointed experts to suit would likely cause a chilling effect on
                acceptance of court appointments). And in so doing, we will have stifled
                the ascertainment of truth, a result we seek to avoid.     See Briscoe, 460
                U.S. at 332 (noting that the path to truth is obstructed by witness's self-
                censoring).
                      Procedural safeguards as remedies
                              As to the final consideration, whether remedies and
                safeguards other than civil liability are sufficient to hold party-retained
                experts accountable for their conduct, we conclude that they are. In Duff,
                we recognized the availability of cross-examination, change of venue,
                imposition of sanctions, and appellate review as adequate safeguards. 114
                Nev. at 571, 958 P.2d at 87. Other jurisdictions have similarly recognized
                the adequacy of procedural safeguards built into the judicial system.   See
                Lythgoe v. Guinn, 884 P.2d 1085, 1089 (Alaska 1994) (recognizing that
                change of venue and appellate review are adequate procedural safeguards
                to hold court-appointed experts accountable for negligence); LaLonde v.
                Eissner, 539 N.E.2d 538, 542 (Mass. 1989) (observing as adequate the
                availability of cross-examination, appellate review, and a request for
                modification). The United States Supreme Court has additionally
                acknowledged the check on unpersuasive evidence provided by the
                impartial trier of facts as a procedural safeguard.   See Butz, 438 U.S. at
                517 ("Evidence which is false or unpersuasive should be rejected upon
                analysis by an impartial trier of fact.").
                              Here, Vivian was at liberty to avail herself of any number of
                remedies. For instance, she might have cross-examined Dr. Roitman to
                establish the negligent method from which his diagnosis and prognosis



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                were derived. We note, however, that the extent to which Vivian actually
                took advantage of available remedies is unclear from the record.° Even so,
                our determination is not contingent upon a factual finding that Vivian
                successfully utilized the remedies at her disposal. Thus, we satisfy the
                final query of the functional approach by simply noting the existence of
                these safeguards   See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting the
                existence of procedural remedies, but not questioning whether the
                claimant actually availed himself); see also Ducharm, 118 Nev. at 616, 55
                P.3d at 425 (noting that the third inquiry is "whether procedural
                safeguards exist" (emphasis added)).
                Absolute immunity under Nevada law
                            Despite our conclusions, derived from the United States
                Supreme Court's functional approach and grounded in common law,
                Vivian argues that Nevada has not, and should not now, extend the
                defense of absolute immunity beyond defamation claims. We note that the
                cases of Duff and Foster negate Vivian's assertion. In Duff, we applied
                absolute immunity to a court-appointed psychologist accused of negligence
                in making a child custody recommendation amidst allegations of child
                abuse. 114 Nev. at 571, 958 P.2d at 87. Similarly, in Foster v. Washoe
                County,   we granted absolute immunity to court-appointed special
                advocates sued for negligent investigation of child abuse. 114 Nev. 936,
                943, 964 P.2d 788, 793 (1998). These applications of absolute immunity to
                claims for negligence demonstrate that we have not limited the doctrine's


                     5 The district court questioned Vivian's failure to exclude Dr.
                Roitman as an expert witness, to impeach his testimony, or to seek
                sanctions, but this discussion failed to make the record more clear.



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                   application to claims for defamation. 6 This court has not in fact made an
                   issue of the type of claim brought when considering the availability of an
                   absolute immunity defense, and we do not at present find good reason to
                   depart from that convention.
                   An unobstructed path to truth
                                 Vivian additionally argues that because expert witnesses are
                   procured to testify to the benefit of a hiring party, the goal of ensuring
                   that the path to truth is unobstructed is not advanced by immunizing
                   experts from negligence. She argues that the immunity that applies to a
                   court-appointed expert, who is a neutral expert appointed by the court to
                   assist the trier of fact, should not be afforded to a party-retained expert,
                   who is a partisan witness advocating a position for a party. We disagree.
                   Experts may be sought after and procured subject to the understanding
                   that they will provide statements in support of a party's particular
                   position. However, under the law, an expert opinion is not admitted to
                   assist one party or the other; rather, it is admitted to assist the trier of




                         6 The  common-law and United States Supreme Court jurisprudence
                   indicate that absolute immunity protects witness statements made during
                   judicial proceedings from tort liability in general and do not limit absolute
                   immunity's application to defamation claims. See Briscoe, 460 U.S. at 335
                   ("[T]he common law provided absolute immunity from subsequent
                   damages liability for all persons—governmental or otherwise—who were
                   integral parts of the judicial process." (emphasis added)). We note,
                   however, that our application of absolute immunity has limitations. See
                   Alioto v. City of Shively, 835 F.2d 1173, 1174 n.1 (6th Cir. 1987) ("[T]he
                   doctrine of witness immunity does not shield from liability alleged
                   conspiracies to falsify nontestimonial evidence."). Our adoption of the
                   doctrine does not protect an expert's fraudulent acts.



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                fact by providing specialized knowledge. NRS 50.275; 7 see also Panitz v.
                Behrend, 632 A.2d 562, 565 (Pa. 1993) ("The primary purpose of expert
                testimony is not to assist one party or another in winning the case but to
                assist the trier of the facts in understanding complicated matters."). Once
                testimony is admitted, it is for the trier of fact to weigh the credibility of
                the expert's opinion and for additional safeguards to advance truth-
                finding.   See Briscoe, 460 U.S. at 333-34 (noting that the fact-finder
                determines where the truth lies). It is in this light we conclude that the
                path to truth is best paved by immunizing expert witnesses, court-
                appointed or party-retained, from tort liability.
                              Accordingly, even if the factual allegations contained in
                Vivian's complaint were true, as a matter of law, Dr. Roitman's defense of
                absolute immunity precludes her claim, and the district court properly
                dismissed each of her causes of action. 8




                      7 NRS  50.275 provides: "If scientific, technical or other specialized
                knowledge will assist the trier of fact to understand the evidence or to
                determine a fact in issue, a witness qualified as an expert by special
                knowledge, skill, experience, training or education may testify to matters
                within the scope of such knowledge."

                      8 Dr.Rottman also contends that there was no doctor-patient
                relationship, and thus, he owed no duty of care to Vivian. We conclude
                that our holding as to absolute immunity is dispositive, and we therefore
                need not address this issue.



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                                         Based on the foregoing, we affirm the district court's order of
                           dismissal.




                           We concur:


                                                         ,   C. J.
                           Hardesty



                           Parraguirre


                                                             J.
                           Cherry


                                                             J.



                                                             J.
                           Gibbons


                                                             J.
                           Pickering




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