own more strict of method for interpret these chest x rays and they succeeded in denying what were clearly earned federal benefits the district court dismissed the case because of witness immunity but the witness munity should not be a shield for on the black on benefit act is a remedial statute that's implemented through a series of regulations federal regulations most important of these touch on the adoption of the international labor organization classification system a supreme court case briscoe any over says witnesses don't have immunity when they testified a proceeding the briscoe case in talking about the nine hundred eighty five section of  did say that your honor it said it would be the congress had evidence and intent and the statute was incompatible with the witness immunity and congress has the power to create those causes of actions and to give people remedies where none previously damages action i mean this is a game that both plaintiffs and defendants can play i mean in this case you strafing the defendants witnesses but in other cases the defendants are going to be strafing most commonly they flop the report up on the table sort of and i didn't ask so other words they didn't testify on very rare occasions when they be called to testify usually usually by the cooperative themselves to explain their their opinion as a result of these false reports that's right on and that's what i think that's sort of what the complaint is a new pledge brought under maryland law and reka correct he did it but a big part of the complaint has to do with false test of our i don't think we allege that he testified under oath in deposition in any of my client's cases i don't think that was we talked about his interpretation of the films and the fact that he signed the be reading form and submitted it and it was used to take away the black line benefits that were earned by my clients in the class so the the ilo system incorporates this is incorporated into the black one benefit that and when people know what is the district director of the benefit review board they are all presuming the people are following the system in this administrative proceeding move forward administrative law and you agree that they were the immunity attaches to participation in a quasar judicial proceeding i can't deny that's the lawyer yeah but that's that's what we're coming after him for when you look at it as a whole they're coming after him for witness testimony and and  is cross examination and everything about his participation in the a o j proceeding your honor i'm not i'm not coming coming at him for and the opinions that he came up with i'm coming we're brought this case because he knew what the regulations commanded he admitted that he did not follow them and that resulted in my clients in some significant battle about this but we're still getting at the same time because down the road and see where we're going well on this case on these facts these individuals systematically for years defeated this not by giving different opinions not by giving their opinions but by failing to follow the law that do will allow it to work in an unfettered free way but that's exactly what what dr weil in his colleagues undermined here they undermined the civil justice system itself and by giving them this witness immunity we're not promoting  that to judge wilkinson this point can't you see a day perhaps the day after an opinion comes out in your paper in which the same argument you know making it will be made against your expert witnesses ins cases you might have i mean i don't have any in particular i'm not disparaging any of your expert myself but i'm sure opposing counsel will i mean i can give an opportunity  of collateral action to take place any time a corporation does a larger point as products liability expert where am you going to have a you're going to have a separate collateral action i mean this i think witness immunity would extend to testimony and and participation in a case but we've always had the idea that fa testimony would be corrected through cross examination and if that was the greatest you know supreme court say that's a greatest engine ever invented for the discovery of of truth or it can be  if you don't like dr wheeler and i have ours i don't know anything about the gentleman but you can disqualify him from subsequent testimony in any black one cases in extreme cases you can bring a perjury prosecution and the all kinds of ways to stop this stuff but to have a collateral civil action and i don't see that i don't see the support of a case law  it either in maryland law or whatever i don't see the support of it's in the rico statute for it i just i'm sitting that i don't see that textual support in rico for it i don't see the support in the maryland case law people and they're a testimony to reach informed results in the cases before us and if they're going to be subject to damages action you cutting off an avenue of  they didn't care what the civil justice system and the only reason this case would come is because after dr wheeler was done going through this successfully defeating benefits for thousands of individuals and their families he admitted it he admitted it to  defending dr who we are i don't know the gentleman i don't know anything about it i'm not to not defending him what i'm saying is that even if what you say is correct that hard cases can make horrible law and if you look in the maryland case law and you look at obama and his supreme court case law o'brien and briscoe and and adams and others they've been very careful not to discourage and chill witness testimony primarily the kind of witness participation where people aren't dragged into court by a subpoena but but but privileged to everything that's ever said during litigation that grows out of the defamation contacts it has grown into other torts and even into some contract actions but even given that it's never grown into a situation where somebody then that had to do purely with judicial proceeding so you switched over and then you talk about section fifteen twelve section fifteen twelve of rico does not have to do with with abrogating witness community immunity it had to do all through with witness tampering didn't have to do with witness testimony and you know you think you thought the abrogation was section fifteen twelve but that doesn't deal with those that's a witness tampering statute and and then you know you try to find it in fifteen  five and which addresses of struction of justice before administrative agencies but so the civil remedy and rico doesn't cover violations oh mail fraud and fifteen twelve see correct your honor of title eighteen correct of the criminal cut the correct amount and thirteen forty one of the criminal code those are the predicate crimes for in a statute there's a if there's a civil cause of action created in the statute that abrogates this immunity you still have to find out in the create civil remedies new civil remedies things that called imaginative civil remedies for victims of crimes like this that is the text of itself when when when the fifteen fraud conflict with the witness immunity congress has the power to supersede that well did they do it yet you talk about their power have they done it here they've done it in the statute when it because it conflicts have they done  here i believe yes your honor and what provision of the law does it hear fifteen twelve see two and zero will recall the predicate the fact that rico gave them the civil remedy is what does it well it's going to conflict with the predicate acts and rico rico provided talks about witness tampering it doesn't talk about abrogation of a witness immunity in the six circuit says there's no clear statement in rico that abrogates the common law federal privilege and and so with libya's there would be a conflict with that circuit in the other thing you're ignoring his queen's statute construe it in an open ended broad way without a specific kind of support that you would need and and there is no doubt that congress has the power to do it but whether we have the power to charge  we'll start by addressing a point that was raised not in the breeze but this morning about the scope of the immunity or precludes called a witness immunity or litigation privilege it is not limited testimony the cases are very clear that it applies to judicial proceedings law under their co extensive in that regard so  applied to slander or libel type claims right no i would not agree with that your honor robert actually says that it applies to any claim and cites briscoe for that proposition under the federal law the privilege well the privilege applies to testimony not to claim by claim accounts it applies to the testimony itself so the point your honor that i started out making was that the witness immunity or litigation privilege applies to the role of a person as a witness the only role that dr wheeler had here at all was as a witness in these proceedings and in fact he rules the parties have the right to request the presence of an adverse witness or never sekret at a hearing before before the a l j and so it's clear that there nothing here happened in any pedal court excuse and they were for the most part were written reports tendered to administrative bodies that that is correct i mean all variants and all that is essentially outside t record all begun here is a complaint right the yes we have the complaint here and the worry since is where there were depositions but the point here is that the privilege applies to your role as a witness in the things you do in connection says briscoe made it clear that this is on page three sixty seven of the rayburn opinion briscoe made it clear the witness of unity extends beyond defamation the public policy disc this dictate is for truth seeking and free testimony and what's in the complaint that's what we got here we're looking at the complaint that's what it says in the complaint and that was not like other stuff we don't have it's outside a record but we did know that much we do and that's something that comes up with regard to every expert collateral actions for damages on the grounds that something is a certainly falls i mean but that's where we have cross examination for well in fact i would say that every time you face an expert witness some of your chief questions when looking at the report and their testimony is are they objective have they applied the standards that apply to them correctly are they telling the truth are they just a hired gun for their side in the case you frequently administrative hearings have witnesses who appear over and over and over again on the same side of the types of disputes the same thing is true with expert witnesses and medical malpractise cases or products liability cases and i would submit that there's no principled way to make a decision here that the witness immunity does not apply in this one context and allows a cause of action where it wouldn't apply in those other contexts and you would be opening the door t it's clear from his opinion he believed that the witness privilege applied to all the claims and they have not made any showing of what it is that they would have pled to have amended no attention in a complaint no w and i think on its face i think this case begins and ends with the application of the witness immunity or litigation privilege but even if you and under maryland law as to all the common law cause of  action in the reply brief it seemed as though they had essentially given up on those and focus their attention on the rico claims but even if you were to get beyond the the witness immunity they still have to have pled a proper rico claim and there's nothing here to suggest that this is a properly plug we rico case claim there's we can we get a firm and that way you could affirm on that basis and there are a number of course but the district court didn't address your claims on the rico deficiencies and you raised issues about the sufficiency of the allegations of rico which the court didn't address and even if we disagreed with judge much on the his handling of the instance the maersk in dari case which was an appeal from a california federal district court went to the ninth circuit and they didn't address the witness immunity even though that had been the basis for the dismissal in the district court and they said we don't need to reach witness you have to read conference i narrowly but in addition there just isn't any civil cause of action created in the statute this this this cause of action that's brought under rico is something that rico didn't do i agree your honor and what the other side has said is that briscoe opens that door by focusing on the discussion there of section one thousand nine hundred five which dealt with the statute during reconstruction and eight hundred seventy one that was focused explicitly on the problem in reconstruction of perjury that was  being that the people were pressuring perjury the k k k in the south was pressuring perjury and that's what the language of the statute talks about they take a witness tampering statute that says that one of many provision you're focusing on half of them of the allegation fifteen twelve even if you're right on that you have and you haven't taken all of the fact that mail fraud is not a federal crime it's prosecuted every day has to make sufficient allegations as to allege an enterprise you say they did the court didn't address that the court didn't address he didn't say there's no rico claim alleged kind of test testimony like this and if the civil cause of action was intended not only was it created but it was intended to abrogate the witness privilege and you know if if they don't do both of those they lose your right your honor abrogation has to be either express or where it has to be a situation where the statute is irreconcilable with the privilege and there's no evidence that that was true here and they don't cite a case for that and there are cases that apply federal cases that we cited that apply the witness privilege to rico case i mean congress could do it but the statute is presently written does doesn't support this cause of action that's attempted here and i thought the sixth circuit turned down with privilege and they have to do both things to win and if congress thought that was appropriate to make an exception to rico for perjury or alleged false testimony they could do so but they haven't done so and th l he did mention both and said that it applies under both so and with regard to to the black lung program itself look this case is not about the tragedies from a terrible disease as you know you've lived your whole life in west virginia  but in a case like this the administrative process can be amended can be can be changed if there are problems with it and in fact as in the record in this case when information about mr wheeler came or dr will or came out that lie ed to this complaint they did go back to the department of labor made changes and allowed hearings be reopened whether that was satisfactory to the claimants here or not is not something that should be litigated here in this context and blaming a witness for something that they think that partner labor and the administrative process didn't adequately address is just so far removed and the precedent that would be setting by unsatisfied litigants going after adverse witnesses for civil remedies is i submit a terrible terrible precedent to set and i don't think rico turns here i understand that judge mots did not address it in his opinion but rico doesn't turn on legal niceties here you have the entire complaint is about something dr wheeler did or allegedly did there's no enterprise there's no racketeering there's no crime here other then the same what he did as a testifying witness and there's just that's something that the law is clear you're not allowed to use to bring a claim against somebody that's what the immunity means  if i believe in responding to your questions i've addressed the points i wanted to make i did want to just reemphasize although i'm sure you're aware of it the because it came up in their reply the idea that you can get around the witness know that they stated early on that there was one reason to believe that they went the opinion continued and it said there are reasons not to believe that and ultimately they said we are not going to decide that issue today six circuit did not find that the ninth circuit in the case looked at a similar issue with a legislative immunity regarding bribery and bribery being a predicate act under weak oh the six circuit  bribery as well as the the legislative immunity and they said does this evidence an intent to use the bribery predicate act other than for an intent to abrogate that legislative immunity ultimately the have been given no reason to suppose that rico was intended to abolish it either it would be anomalous we think of officials who are immune from say for alleged violations of constitution itself should be denied immunity from suit for alleged violations of a statute that is not incorporate the constitution particularly a statute is amorphous as rico and that's quoting from  it is your honor and i are free later on in the opinion if they will we will preterm it that question to a later time it just is a matter i think of respecting with respect of this rico of respect in congress and what congress is is judge king earlier pointed out congress can do it if congress wants to do it but the question is have they done it here and i just can't find any a ny indication that they created this condo civil cause of action for this particular offense or that they have tended to intended to abrogate an immunity that is so congress created rico gave civil remedies to victims of these crimes including and listed the predicate acts that people could provide a civil action for one of them is mail fraud one of them is a charge under the ninth circuit circuit there is evidence that they found that congress has a part in this as i think that will continue agree they do have the power and they look to the stack you to see if the stack you conflicted with the witness immunity and if it did they would have because they have if they can plead rico with these predicate acts and there's no witness immunity then they have that that claim now if witness immunity part of the common law conflicts with that that cannot supersede what congress has provided so the question is has congress provided them this civil action you know the all you're all this case law you're citing is is is far afield citing government contractor cases and you you know you're you're you're citing cases that didn't involve any kind of witness testimony of others you're citing cases like mango where witness immunity was not involved in adam's we packed where testimony was not involved and then you're citing other cases like bar which actually expanded the witness testimony don't simply disappear when you have a non defamation suit they apply regardless of the subject of the suit you want to encourage people to testify without the paying of all  r of a civil action which will be brought in many many cases where the witness testimony is run of the mill little be used as a club but that's still at any rate i think we know what your position is and i think we know what they're posing councils we thank you for your argument we will not adjourn court or be happy to come down and greet you thank you