September 23, 2013
LOUIS WATLEY, Plaintiff-Appellant,
DR. ROBERT SHALER, Defendant-Respondent
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-9493-12.
Louis Watley, appellant, argued the cause pro se.
Paul Casteleiro argued the cause for respondent.
Before Judges Messano and Ostrer.
Plaintiff Louis Watley appeals from the trial court's September 12, 2012 order dismissing his complaint against defendant, whom he retained as a testimonial expert in a post-conviction relief (PCR) hearing. Plaintiff asserted he was fraudulently induced to retain defendant, who then testified contrary to his pre-hearing assurances. The trial court held that defendant was shielded by the litigation privilege. We affirm.
Plaintiff filed his complaint in Special Civil Part. He alleged that he hired defendant, an expert in DNA evidence, because defendant "represented to plaintiff . . . that he would give specific testimony before the evidentiary hearing court." In particular, plaintiff asserted that defendant falsely represented that he would testify that certain forensic reports that the State submitted in plaintiff's trial were "improperly prepared and contained tainted evidence." Defendant also, allegedly, falsely assured plaintiff he would testify that the State DNA report contained exculpatory evidence. Plaintiff alleged defendant's false representations were made with the intent to induce plaintiff to retain him.
Plaintiff alleged that at his PCR hearing, defendant testified contrary to his pre-hearing assurances, failed to testify truthfully, and failed to protect his interests. Plaintiff asserts that as a result of defendant's testimony, plaintiff failed to secure PCR, and was incarcerated for four more years. He sought compensatory damages of $14, 999, and punitive damages of $1.
We need not review the details of defendant's underlying conviction, and the issues presented for collateral review. Suffice it to say, defendant was convicted in 2000 of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), and other related crimes. The victim was assaulted in a bed in defendant's home. Blood and DNA evidence were collected from the bedsheet. We affirmed his conviction. State v. Watley, No. A-4295-00 (App. Div. Apr. 23, 2004), certif. denied, 180 N.J. 458 (2004). However, we later reversed and remanded in part the trial court's 2005 denial of his PCR petition, focusing on the ineffective assistance of counsel. State v. Watley, No. A-5970-04 (App. Div. Apr. 5, 2007). After the hearing at which defendant testified, the court denied relief. On appeal, we affirmed after we reviewed the issues involved in the PCR hearing and defendant's hearing testimony. State v. Watley, No. A-1132-07 (App. Div. Dec. 17, 2008), certif. denied, 199 N.J. 514 (2008).
Plaintiff argues the trial court erred by finding that defendant was entitled to immunity based on the litigation privilege. We disagree.
We review well-settled principles. "[A] witness in a judicial or quasi-judicial proceeding enjoys an absolute immunity from civil suit for his words and actions relevant to the judicial proceedings." Durand Equip. Co. v. Superior Carbon Prods., Inc., 248 N.J.Super. 581, 583 (App. Div. 1991). "This absolute immunity is afforded even if the words are written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed." Id. at 583-84 (internal quotation marks and citation omitted). Furthermore, "[t]he litigation privilege is not limited to statements made in a courtroom during a trial; 'it extends to all statements or communications in connection with the judicial proceeding.'" Hawkins v. Harris, 141 N.J. 207, 216 (1995) (quoting Ruberton v. Gabage, 280 N.J.Super. 125, 133 (App. Div.), certif. denied, 142 N.J. 451 (1995)). Thus, it covers "preliminary conversations and interviews between a prospective witness and an attorney if they are in some way related to or connected with a pending or contemplated action." Ibid. (internal quotation marks and citation omitted). To determine whether an out-of-court statement is subject to a privilege, the Court adopted a four-part test: "The absolute privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Ibid. (internal quotation marks and citation omitted).
Absent the privilege, a witness might shade his testimony to avoid subsequent lawsuits. Durand, supra, 248 N.J.Super. at 584. In Durand, we held the privilege applied where a plaintiff claimed that a defendant presented false and fraudulent testimony and documents which resulted in the plaintiff's conviction. We held the privilege covered the testimony and documents utilized "in preparation of and for the criminal proceedings." Id. at 583.
In another context, then-Judge Hoens instructively applied the privilege to a claim against a court-appointed county-psychologist. The plaintiff alleged the psychologist misdiagnosed the child as a victim of sexual abuse, resulting in harm to the parent-child relationship. The court held the privilege barred the claim. P.T. v. Richard Hall Cmty. Mental Health Care Ctr., 364 N.J.Super. 561, 582-84 (Law Div. 2002), aff'd o.b., 364 N.J.Super. 460, 462 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).
We review the trial court's decision to dismiss de novo. J.D. ex rel. Scipio-Derrick v. Davy, 415 N.J.Super. 375, 398 (App. Div. 2010). However, we discern no error. Although we accept as true plaintiff's allegations, Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989), defendant is entitled to immunity, as plaintiff's fraud claim is based on defendant's statements made in preparation for his testimony, and the statements he made as a witness.
Plaintiff argues, however, that Levine v. Wiss & Co., 97 N.J. 242 (1984), permits him to assert his claims against defendant. In Levine, the parties entered into an agreement to select the defendants to perform a valuation that would be binding upon them. Id. at 244. The trial court filed a consent order confirming the defendants' appointment to undertake the evaluation. Ibid. The plaintiff thereafter filed a lawsuit alleging, among other things, that the defendants had performed the valuation negligently and breached the contract as well as certain fiduciary duties. Id. at 245. The Levine Court held that the defendants were not entitled to immunity merely because the trial court had entered an order confirming the parties' agreement selecting the defendants to perform the valuation. Id. at 252. The Court stated, "A court-appointment is not a talisman for immunity." Ibid.
In our view, plaintiff's reliance upon Levine is misplaced. Levine did not address the litigation privilege. The accountants in that case neither prepared for, nor participated in a trial. Rather, the accountants sought the protection of judicial immunity, as an asserted arm of the court.