                       REVISED - JULY 10, 1998

                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                     ___________________________

                             No. 97-31289
                     ___________________________


   GERARD QUIRK and ROSE QUIRK, individually and on behalf of
            JOEY QUIRK, GERRY QUIRK and RUSTY QUIRK,

                        Plaintiffs-Appellees,

                               VERSUS


 MUSTANG ENGINEERING, INC., DEEPWATER PRODUCTION SYSTEMS, INC.,
     BP EXPLORATION & OIL, INC., and TATHAM OFFSHORE, INC.,

          Defendants-Third-Party Plaintiffs-Appellees,


                               VERSUS


                        J. FRAZER GAAR, M.D.,

                      Defendant-Third-Party Defendant-Appellant.


       ___________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
       ___________________________________________________

                          June 29, 1998
Before GARWOOD, DAVIS, and EMILIO M. GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Dr. J. Frazer Gaar appeals from an order of the district court

denying his motion for summary judgment based on absolute quasi-

judicial immunity.   For the reasons set forth below, we affirm.
                                    I.

       On June 5, 1993, while working as a pipe fitter for Seawolf

Services, Inc., appellee Gerard Quirk tripped and fell backwards on

an offshore platform, injuring his back.              He was immediately

treated at a local hospital emergency room.          Quirk did not return

to work after the accident and began receiving benefits under the

Longshoremen’s and Harbor Workers’ Compensation Act (“LHWCA”).

       Soon after the accident, Quirk was examined by his family

physician, Dr. Joseph Patton.       Dr. Patton referred Quirk to Dr.

Stuart Phillips, an orthopedic surgeon. After months of treatment,

Dr. Phillips recommended that Quirk undergo surgery to correct a

herniated   disc.    At   the   request   of   his   employer’s   insurance

company, Gray Insurance (“Gray”), Quirk was examined by Dr. Clifton

Shepherd.   Dr. Shepherd concluded that Quirk did not need surgery.

       On July 15, 1994, a claims adjuster for Gray wrote Quirk’s

attorney concerning the conflicting medical opinions and suggested

that Quirk submit to an Independent Medical Examination (“IME”) by

a third physician.   The parties agreed to have Dr. Gaar perform the

IME.    After examining Quirk and reviewing his chart, Dr. Gaar

issued a report in which he concluded that Quirk did not need

surgery and that he was able to return to work.          Consequently, in

October 1994, Gray terminated Quirk’s benefits.

       Quirk subsequently filed a complaint with the Department of




                                    2
Labor (“DOL”) contesting the termination of his benefits.1       On

December 1, 1994, an informal conference was held by a DOL claims

examiner.2   After the conference, the claims examiner reviewed the

materials in Quirk’s file, including Dr. Gaar’s report, and decided

that Quirk was not entitled to further workers’ compensation

benefits.3 In his memorandum of conference, the examiner expressly

relied on Dr. Gaar’s opinions, stating that “Dr. Gaar, the IME

physician agreed to by both parties, released the claimant to

return to work at his previous work and activities.   As this was an

IME agreed to by both parties and the doctor found no disability,

there are no benefits due . . . .”

   1
          Under the regulations governing the administration of the
LHWCA, an employee may contest an employer’s or a carrier’s
termination of benefits by filing a complaint or notice of contest
with the office of the DOL district director having jurisdiction.
See 20 C.F.R. § 702.261.
       2
          The district director may hold an informal conference in
an attempt to resolve a dispute.     20 C.F.R. § 702.311.    Such
conferences are conducted by the district director or a designee.
20 C.F.R. § 702.312.
       3
          If the parties cannot come to an agreement during an
informal conference, the district director or his or her designee
brings the conference to a close, evaluates all the evidence
available to him or her, and prepares a memorandum of conference
setting forth all outstanding issues, such facts or allegations as
appear material, and his or her recommendations and rationale for
resolution of such issues.     20 C.F.R. § 702.316. Copies of the
memorandum are sent to each of the parties who indicate whether
they agree or disagree with the recommendations. Id. If either of
the parties disagrees, then the district director or his or her
designee may schedule further conferences as may bring about an
agreement. Id. If the district director or his or her designee is
satisfied that additional conferences would be unproductive, or if
any party has requested a hearing, the case is transferred to an
administrative law judge. Id.

                                 3
      On December 5, 1995, Dr. Phillips performed an emergency

spinal fusion on Quirk.           After the surgery, Quirk’s DOL complaint

became   moot   as    Gray     voluntarily        reinstated        Quirk’s   worker’s

compensation benefits and paid Quirk over $16,000 in benefits

previously denied.

      During the interim, on June 6, 1994, Quirk and his wife filed

this action against defendants-appellees Mustang Engineering, Inc.,

and   Deepwater      Production      Systems,          Inc.,   subsequently       adding

defendants-appellees         BP    Exploration          &   Oil,    Inc.   and    Tatham

Offshore,   Inc.       Quirk      alleged       that    defendants-appellees        were

responsible for the injuries he sustained.                         On June 27, 1997,

defendants-appellees filed a third-party complaint against Dr.

Gaar, alleging medical malpractice.               On July 22, 1997, Quirk added

Dr. Gaar as a defendant, also alleging medical malpractice.

      On October 8, 1997, Dr. Gaar filed a motion for summary

judgment based on absolute quasi-judicial immunity.                              After a

hearing on November 13, 1997, the district court orally denied Dr.

Gaar’s motion.        Dr. Gaar appeals.                We have jurisdiction over

interlocutory appeals from orders denying summary judgment based on

absolute immunity where, as here, there are no material factual

issues in dispute.      See Williams v. Collins, 728 F.2d 721, 726 (5th

Cir. 1984).

                                        II.

      Dr. Gaar argues that he is entitled to absolute quasi-judicial



                                            4
immunity from any civil liability based on the opinions he rendered

in connection with the IME he performed on Quirk.      He contends that

he is entitled to such immunity because his opinions were relied on

by the claims examiner and he thus functioned as a witness at the

informal conference.

     Witnesses   receive   absolute   quasi-judicial    immunity     from

subsequent damages liability arising from their participation in

judicial proceedings because they are considered an “integral” part

of the judicial process.    See Briscoe v. LaHue, 460 U.S. 325, 335

(1983).   “It is precisely the function of a judicial proceeding to

determine where the truth lies,” id. at 335 (quoting            Imbler v.

Pachtman, 424 U.S. 409, 439 (1976) (White, J., concurring)), and

witnesses play an essential role in that endeavor.        If witnesses

were subject to liability arising from their participation in

judicial proceedings, however, they might be less inclined to come

forward and provide “candid, objective, and undistorted” testimony.

Id. at 333-34.   Accordingly, witnesses are given absolute immunity

so that “the paths which lead to the ascertainment of truth should

be left as free and unobstructed as possible.”            Id.     at 333

(quoting Calkins v. Sumner, 13 Wis. 193, 197 (1860)).       In Butz v.

Economou, 438 U.S. 478, 512-13 (1978), the Supreme Court held that

an “adjudication within a federal administrative agency shares

enough of the characteristics of the judicial process that those

who participate in such adjudication should also be immune from


                                  5
suits for damages.”

     Although the parties dispute whether the informal conference

was an “adjudication within a federal administrative agency,” we

need not decide that issue.         Even if we were to determine that the

informal conference was such an adjudication, we would nevertheless

conclude that Dr. Gaar is not entitled to immunity.               At the time

Dr. Gaar rendered his opinions, not only was he unaware that his

opinions would be used in an adjudicatory proceeding relating to

Quirk’s claim for LHWCA benefits, but no such proceeding was

pending, scheduled, or even contemplated.                As Dr. Gaar did not

render his opinions in connection with or in anticipation of an

adjudicatory proceeding, none of the considerations supporting

witness immunity apply.         Accordingly, there is no reason to afford

Dr. Gaar immunity.

                                      III.

     For the reasons set out above, we conclude that the district

court    did   not   err   in   denying   Dr.   Gaar’s   motion   for   summary

judgment.4

     AFFIRMED.

EMILIO M. GARZA, Circuit Judge, dissenting:

     The majority rejects Dr. Gaar’s claim of immunity because at

the time that Dr. Gaar gave his opinions, he was “unaware that his

opinions would be used in an adjudicatory proceeding” and because

“no such proceeding was pending, scheduled, or even contemplated.”

     4
          We, of course, express no opinion as to Dr. Gaar's
libility to Quirk or Mustang.
See ante at 5.      In denying his claim for witness immunity, the

majority incorrectly focuses on what Dr. Gaar thought at the time

that he rendered his opinions.          Dr. Gaar’s mental state at that

time and his corresponding medical opinion had no legal effect

until Gray and the Department of Labor (“DOL”) used his medical

opinion    (i.e.,   Gray   terminated    Quirk’s   benefits   and   the   DOL

rejected Quirk’s claim to further workers’ compensation).            It was

this use of Dr. Gaar’s opinion that provided the basis for Quirk’s

medical malpractice claim.      Because the use of Dr. Gaar’s medical

opinion    occurred    in    “an   adjudication      within    a    federal

administrative agency,”5 he is entitled to immunity for his medical

opinion.    Accordingly, I respectfully dissent.




     5
          The DOL informal conference shares enough of the
characteristics of the judicial process to constitute “an
adjudication within a federal administrative agency.”     Butz v.
Economou, 438 U.S. 478, 512-13, 98 S. Ct. 2894, 2913-14, 57 L. Ed.
2d 895 (1978).

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