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Lewis v. Drouillard

March 22, 2010


The opinion of the court was delivered by: Honorable VICTORIA A. Roberts



Plaintiffs sued the United Parcel Service ("UPS"), Liberty Mutual Insurance Co. ("Liberty") and Dr. Paul Drouillard under the Federal Racketeer Influence and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Before the Court is Dr. Drouillard's Motion to Dismiss (Dkt. #32). Dr. Drouillard seeks dismissal on grounds that the claims against him are barred by the doctrine of witness immunity. On December 22, 2009, the Court ordered the parties to brief whether it should apply the witness-immunity doctrine as defined under Michigan or federal law (Dkt. #39). Oral argument was held on February 24, 2010.

For reasons stated, the motion is DENIED.


Michigan's Workers' Disability Compensation Act ("the WDCA"), Mich. Comp. Laws ("M.C.L.") § 418.101 et seq., allows employers and insurers to compel applicants for disability benefits to submit to an independent medical examination ("IME"). § 418.385. The law stipulates that if an employee refuses to participate, "his or her right to compensation shall be suspended and his or her compensation during the period of suspension may be forfeited." Id. Disputes over compensation and benefits must be referred to the Workers' Compensation Agency ("WCA"), for resolution by a workers' compensation magistrate. § 418.841. If the amount in controversy exceeds $2,000, or if the parties request, the matter must be submitted to mediation or set for hearing. § 418.847.

Plaintiffs are UPS employees whose workers' compensation disability benefits were discontinued. They allege that Defendants operated a scheme to fraudulently terminate or deny legitimate claims for benefits. Plaintiffs allege that one aspect of Defendants' scheme involved sending claimants to so-called "cut-off" doctors, to undergo IMEs. According to Plaintiffs, these physicians wrote IME reports, stating that claimants did not have any work-related disability, whether or not this was true. These reports gave UPS and Liberty a reason to terminate or deny benefits.

Plaintiffs allege that Dr. Drouillard was a "cut-off" doctor who performed scores of IMEs for UPS and Liberty between 2003-2008, and received substantial compensation for his services. Plaintiffs claim that, in his role as an independent medical examiner, Dr. Drouillard testified at hearings before the WCA.

Plaintiffs filed this action under the federal RICO statute, alleging that UPS, Liberty and Dr. Drouillard worked together to defraud claimants of their workers' compensation benefits. Plaintiffs seek certification as a class. The action was assigned to the Honorable Robert H. Cleland, who eventually recused himself. Before his recusal, Judge Cleland stayed the case pending the resolution of Brown v. Cassens Transp. Co., 546 F.3d 347 (6th Cir. 2008), cert. denied, 130 S.Ct. 795 (2009). However, Judge Cleland authorized Dr. Drouillard to file a limited motion under Fed. R. Civ. P. 12(b)(6) on any non-RICO issue, specific to him (Dkt. #31).

On July 20, 2009, Dr. Drouillard filed this motion to dismiss and, alternatively, for judgment on the pleadings. Dr. Drouillard argues that, pursuant to the doctrine of witness immunity, he cannot be held civilly liable for performing IMEs and reporting his conclusions. Since Judge Cleland only permitted Dr. Drouillard to file a motion under Rule 12(b)(6), the Court construes his motion solely as one to dismiss.


A. Standard of Review

In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When reviewing a motion to dismiss for failure to state a claim, the district court "must construe the complaint liberally in the plaintiff's favor and accept as true all factual allegations and permissible inferences therein." Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994) (citing Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976)).

B. Governing Law

The witness-immunity doctrine arises entirely from common law. Like state courts, federal courts maintain a separate body of common law. Since federal common law is more limited than state common law, there are relatively few areas of overlap; however, when federal and state common law exists with regard to a particular issue, the presiding court must decide which one to apply.

The issue must be addressed here, because Dr. Drouillard relies extensively on both Michigan cases and federal-diversity cases applying state common law. He also contends that state law should apply because he performed his IMEs in Michigan, pursuant to a state statute. On the other hand, Plaintiffs mainly cite federal-question cases, which apply federal common law. None of these cases explains the reasons for its choice of law.

To decide which common law applies, the Court looks to Federal Rule of Evidence 501 for guidance:

Except as otherwise required..., the privilege of a witness... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness... shall be determined in accordance with State law.

This is a civil action under the federal RICO statute, 18 U.S.C. § 1961 et seq. Plaintiffs allege that Dr. Drouillard conspired to participate, and participated in, a pattern of racketeering activity affecting interstate commerce, in violation of § 1962(c) and (d), and that his actions violated the federal mail- and wire-fraud statutes, 18 U.S.C. §§ 1341 and 1343. Despite Plaintiffs' repeated claims that RICO and the mail-fraud statute "criminalized" Dr. Drouillard's alleged pattern of racketeering, (Pls.' Supp. Br. 18), this case remains a civil one. Plaintiffs also claim violations of certain state statutes -- the Michigan Uniform Trade Practices Act, M.C.L. § 500.2001 et seq., and the Michigan Workers' Disability Compensation Act, M.C.L. § 418.101 et seq. -- but none of these claims appears directed at Dr. Drouillard. Indeed, this was clarified at the hearing. Therefore, since state law does not govern any element of any claim or defense, the Court applies federal common law. See Reg'l Airport Auth. v. LFG, LLC, 460 F.3d 697, 712 (6th Cir. 2006) ("Where... the underlying claim is based on federal law, federal common law determines the extent of the [attorney-client] privilege.") (citing Fed. R. Evid. 501; Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998)).

C. Witness-Immunity Doctrine

The doctrine of witness immunity, also referred to as testimonial immunity, is not a free-standing principle, but part of the "cluster of immunities" which, at common law, "protect[s] the various participants in judge-supervised trials." Butz v. Economou, 438 U.S. 478, 512 (1978). The emergence of these common-law immunities came with the recognition that -- controversies 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 unconstitutional animus.

Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.

Id. (citations omitted). See also Mitchell v. Forsyth, 472 U.S. 511, 521-22 (1985) (given the adversarial nature of the judicial process, "[i]t is inevitable that many of those who lose will pin the blame on judges, prosecutors, or witnesses and will bring suit against them in an effort to relitigate the underlying conflict.") (citation omitted).

Judicial immunity, the"immunity of judges from liability for damages for acts committed within their judicial jurisdiction," was solidly established at common law. Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (citing Bradley v. Fisher, 13 Wall. 335 (1872)). Based on the nature of their responsibilities, other participants in judicial proceedings enjoyed similar immunity. See Imbler v. Pachtman, 424 U.S. 409, 423 n.20 (1976) (because their judgments were functionally comparable to those of judges, prosecutors and grand jurors were considered "quasi-judicial" officers, entitled to "quasi-judicial" immunity). "In short, the common law provided absolute immunity from subsequent damages liability for all persons -- governmental or otherwise -- who were integral parts of the judicial process." Briscoe v. Lahue, 460 U.S. 325, 335 (1983).

In Briscoe v. LaHue, the Supreme Court reaffirmed the common-law principle that witnesses, like judges and prosecutors, are absolutely immune from civil liability based on their testimony in judicial proceedings. 460 U.S. at 326. The issue before the Court was whether a police officer who committed perjury during a criminal trial could be held liable for damages under 42 U.S.C. § 1983, for violating the defendant's constitutional rights. Id. at 326-27. The Supreme Court responded in the affirmative; after reviewing the doctrine's common-law roots, id. at 330-32, the Court emphasized its continuing role in promoting truthful testimony by witnesses:

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 truthfinding 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."

Id. at 333-34 (quoting Imbler, 424 U.S. at 440 (White, J., concurring in judgment)) (citations and footnotes omitted). The Court held that the immunity accorded to judges and prosecutors should "also apply to witnesses, who perform a somewhat different function in the trial process but whose participation in bringing the litigation to a just -- or possibly unjust -- conclusion is equally indispensable." Id. at 345-46.

In the Sixth Circuit, witnesses are immune from suit "no matter how egregious or perjurious that testimony was alleged to have been." Moldowan v. City of Warren, 578 F.3d 351, 390 (6th Cir. 2009) (citation omitted). The doctrine of witness immunity also protects conspiracies to render false testimony; therefore, a plaintiff may not circumvent absolute immunity by alleging that multiple defendants conspired to commit perjury. Macko v. Byron, 760 F.2d 95, 97 (6th Cir. 1985) (per curiam).

Briscoe confirmed the continued vitality of the witness-immunity doctrine, but did little to clarify its scope. In subsequent cases, the Supreme Court laid out certain limits to testimonial immunity. See, e.g., Malley v. Briggs, 475 U.S. 335, 340-41 (1986) (police officer seeking arrest warrant is a complaining witness, and complaining witnesses are not absolutely immune from § 1983 claims); Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997) (prosecutor who executes a fact certification for an arrest warrant acts as a complaining witness, and cannot claim absolute immunity).

The circuits have also stepped in to clarify issues that Briscoe left unresolved.

Compare Briscoe, 460 U.S. at 328 n.5 (declining to address whether witnesses in pretrial proceedings are immune), with Macko, 760 F.2d at 97 (absolute immunity bars actions against witnesses in grand jury proceedings); San Filippo v. U.S. Trust Co. of N.Y., 737 F.2d 246 (2d Cir. 1984) (same), cert. denied, 470 U.S. 1035 (1985); Briggs v. Goodwin, 712 F.2d 1444 (D.C. Cir. 1983) (same), cert. denied, 464 ...

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