Antitrust attorneys

In the fifth lawsuit between the parties’ litigation that has lasted nearly a decade, the respondents argued that the district court erred by dismissing or restricting their claims against and expert witness and some of the defendants based on absolute privilege.  The Minnesota Court of Appeals held that an expert witness who submits an affidavit in the course of a legal proceeding is absolutely immune from liability under the absolute-privilege doctrine.

The appellant, Asian Women United of Minnesota (AWUM), is a Minnesota nonprofit corporation that operated a battered women’s shelter.  The organization provided advocacy services within the Asian–Pacific Islander community.  The female respondent was employed as its executive director from July 1999 until she was fired in February 2004.  The male respondent performed pro bono legal services for AWUM from 2002 until early 2004.

The couple alleged that AWUM maliciously prosecuted legal-malpractice and conversion actions. They also claimed abuse of process, intentional infliction of emotional distress, civil conspiracy, civil aiding and abetting, negligent infliction of emotional distress, loss of consortium, and vicarious liability. In addition to AWUM, the respondent sued the current and former executive directors of AWUM and a number of current and former members its board of directors.

EFK was hired by AWUM to provide expert testimony in connection with its legal-malpractice action against Lawrence Leiendecker.

The husband and wife claim against EFK were based solely on allegations that he knowingly made false statements in his expert affidavit submitted during the legal-malpractice claim against Lawrence.  In their complaint, they alleged that the expert:  (i) consciously provided information and affidavit testimony that was materially false and/or misleading that purposefully omitted facts known to then exist knowing the intended wrongful objectives; (ii) that disclosure of that information was necessary to make the information and testimony not false and/or misleading; and (iii) that the information was designed to encourage and assist AWUM in the abusive and malicious prosecution of claims.  The couple also argued that the absolute-privilege doctrine should not apply in this case because of the alleged malice behind the affidavits.

All of the plaintiffs; claims against EFK and those against the directors were based on affidavits submitted during litigation that sounded in defamation, in that they stemmed from or grew out of their allegedly false statements.  Appellate Judge Francis J. Connolly wrote that when absolute privilege applies, the speaker is totally protected from liability for his or her statements—even in the event that these statements are intentionally false or malicious.  This doctrine, he held, applied equally to expert witnesses.

They contended that their injuries did not arise from the content of the expert and directors’ allegedly false statements in their affidavits, but from the abusive conduct of the litigation:  they claimed that there was a distinction “between tort claims that are concerned with the intent of a defendant in utilizing judicial process and those that are merely concerned with a defendant’s communications.”  The malicious prosecution and other claims against EFK did not sound in defamation because those claims did not involve injuries that stemmed from defamation.  Rather, they involve injuries that arose out of” maliciously and/or wrongfully implemented and prosecuted legal proceedings.”

In Minnesota, the required elements of a claim sounding in defamation include:  (i) proof that the alleged statements were made; (ii) that the statements were communicated to someone other than the plaintiff; (iii) that the statements were false; and (iv) that, as a result, the plaintiff’s reputation was harmed.

In his opinion, Judge Connolly cited the Minnesota Supreme Court decision of Mahoney & Hagberg v. Newgard (Minn. 2007), which held that absolute privilege protects witnesses from lawsuits based on statements made during judicial proceedings.  The Mahoney decision also said that public policy favored using absolute privilege because it encouraged witnesses to participate in judicial proceedings in order to find the truth:  when absolute privilege is applicable, the speaker is “completely shielded from liability for her statements, even statements that are intentionally false or made with malice.”

In Mahoney, a law firm sued a former secretary, claiming that an affidavit she submitted during a lawsuit was a breach of client and firm confidences, a breach of fiduciary duty, an invasion of privacy, and part of a civil conspiracy.  In addition, the law firm alleged that the secretary was conspiring to do it harm.  The secretary moved to dismiss the claims based on absolute privilege; however, the district court denied her motion. The court of appeals reversed, and the supreme court affirmed the appellate decision in that the law firm’s claims sounded in defamation and were barred by absolute privilege:

Although appellant frames its claims as breaches of confidences, invasion of privacy, and civil conspiracy, the basis of appellant’s complaint is that [the defendant] made false statements when she knew that those statements would harm the firm. Regardless of the label, appellant’s claims are in essence defamation claims; they are claims that arise as a consequence of [defendant’s] purported defamatory statements.

As a result, in the present case, the court of appeals held that the district court did not err in dismissing the couple’s claims against the expert witness and restricting their claims against the two directors of the association on the basis of absolute privilege.

Leiendecker v. Asian Women United of Minnesota, — N.W.2d —-, 2013 WL 2372179
(Minn.App. June 03, 2013).

By: Kurt Mattson, J.D., LLM