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131 Nev., Advance Opinion 12- 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

VIVIAN MARIE LEE HARRISON, 

Appellant, 

vs. 

NORTON A. ROITMAN, M.D., 

Respondent. 

No. 64569 

DEC 17 2015 

IPACTIE K. UN .!: 

CLE? ;:t ,' i p1.J EZ• DYLLA: VIAL; 

Appeal from a district court order dismissing a mett cal 

malpractice action. Eighth Judicial District Court, Clark County; 

Kenneth C. Cory, Judge. 

Affirmed. 

John Ohlson, Reno, 

for Appellant. 

John H. Cotton & Associates, Ltd., and John H. Cotton and John J. 

Savage, Las Vegas, 

for Respondent. 

BEFORE THE COURT EN BANC, 

OPINION 

By the Court, DOUGLAS, J.: 

In this opinion, we consider whether a party-retained expert 

providing a psychiatric analysis of an adverse party during divorce 

proceedings may later be sued by the adverse party based on statements 

made in his written psychiatric analysis report. In accordance with longestablished precedent extending absolute immunity to judicial 

participants, we recognize that party-retained expert witnesses have 

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absolute immunity from suits for damages arising from statements made 

in the course of judicial proceedings. 

FACTS AND PROCEDURAL HISTORY 

This action arose from a divorce proceeding to which Vivian 

Harrison (Vivian) and Kirk Harrison (Kirk) were parties. During the 

divorce proceeding, Kirk hired psychiatrist Norton Roitman, M.D., to 

conduct a psychiatric analysis of his then-wife, Vivian. Despite never 

examining or meeting Vivian, Dr. Roitman prepared and submitted to the 

court a written report diagnosing Vivian with a personality disorder and 

concluding that her prognosis was poor. 

Consequently, Vivian filed a complaint against Dr. Roitman, 

alleging that the statements made in his report constituted medical 

malpractice, intentional infliction of emotional distress, negligent 

infliction of emotional distress, and civil conspiracy. According to Vivian, 

Dr. Roitman's statements were founded solely on information obtained 

from Kirk, and his diagnosis, given without meeting or examining her, fell 

below the standard of care for a psychiatrist. 

Dr. Roitman subsequently filed an NRCP 12(b)(5) motion to 

dismiss, which was granted by the district court. The district court 

concluded that, as a witness preparing an expert report in connection with 

the matter in controversy, Dr. Roitman was absolutely immune from 

liability for each of Vivian's causes of action. Vivian appealed. 

DISCUSSION 

An order granting a motion to dismiss pursuant to NRCP 

12(b)(5) is subject to a rigorous review. Buzz Stew, LLC v. City of N. Las 

Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). This court 

recognizes all factual allegations in the complaint as true and draws all 

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inferences in favor of the complainant. Id. at 228, 181 P.3d at 672. Thus, 

Vivian's complaint should only be dismissed if it appears beyond a doubt 

that no factual allegations, taken as true, would entitle her to relief. Id. 

In this case, the validity of the district court's order granting dismissal 

turns on whether it correctly applied the doctrine of absolute immunity, 

which is a question of law that we review de novo. See Fink v. Oshins, 118 

Nev. 428, 432, 49 P.3d 640, 643 (2002). 

On appeal, Vivian contends that the district court improperly 

dismissed her complaint because Nevada limits the availability of an 

absolute immunity defense to claims for defamation. Because her 

complaint alleges medical malpractice rather than defamation, she argues 

that Dr. Roitman's defense of absolute immunity does not apply. In 

opposition, Dr. Roitman contends that he is entitled to the protection of 

absolute immunity because he made the challenged statements as an 

expert participating in a judicial proceeding. He further contends that his 

claim of absolute immunity is not contingent upon the type of action 

brought by Vivian. 

Absolute immunity, a doctrine rooted in the common law, "is a 

broad grant of immunity not just from the imposition of civil damages, but 

also from the burdens of litigation, generally." State v. Second Judicial 

Dist. Court (Ducharm), 118 Nev. 609, 615, 55 P.3d 420, 423 (2002) (citing 

James L. Knoll, Protecting Participants in the Mediation Process: The Role 

of Privilege and Immunity, 34 Tort & Ins. L.J. 115, 122 (1998)). Questions 

of immunity are driven by public policy, requiring a balancing of "the 

social utility of the immunity against the social loss of being unable to 

attack the immune defendant." Id. at 614-15, 55 P.3d at 423. The 

doctrine is further 'justified and defined by the functions it protects and 

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serves." Rolon v. Henneman, 517 F.3d 140, 145 (2d Cir. 2008) (quoting 

Forrester v. White, 484 U.S. 219, 227 (19881); see also Briscoe v. LaHue, 

460 U.S. 325, 342 (1983) ("[O]ur cases clearly indicate that immunity 

analysis rests on functional categories."). Thus, in analyzing this issue, we 

are mindful that "functional categories, not. . . the status of the 

defendant' control[s] the immunity analysis." Rolon, 517 F.3d at 145. 

The United States Supreme Court has applied this "functional 

approach" to resolving questions of immunity. See, e.g., Briscoe, 460 U.S. 

at 335-36 (determining by application of the functional approach that a 

testifying police officer was protected by absolute witness immunity 

because while testifying he served the same functions as other witnesses); 

Buckley v. Fitzsimmons, 509 U.S. 259, 259 (1993) (applying the functional 

approach to determine whether qualified or absolute immunity applied to 

state actors accused of malicious prosecution).' This court applied the 

Supreme Court's functional approach in Ducharm to reach the conclusion 

that child protective service agents, integral constituents of the court 

process, act under the protection of absolute immunity when they provide 

information to the court. 2118 Nev. at 615-19, 55 P.3d at 424-26. We 

'In his concurrence, Justice Kennedy squarely rejects an analysis 

supplemented by bright-line rules rather than one established entirely on 

function. 509 U.S. at 289 (Kennedy, J., concurring). He explains that 

"ensuring parity in treatment among. . . actors engaged in identical 

functions" was the precise goal of the functional analysis. Id. at 288-89. 

21n Ducharm, we ultimately held that the district court did not err 

by refusing to dismiss the claims based on a defense of absolute immunity 

because the alleged negligence occurred after the court order was entered. 

118 Nev. at 620, 55 P.3d at 427. 

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similarly employ the functional approach here to determine whether the 

social utility of recognizing absolute immunity for party-retained experts 

is sufficiently great to justify their pardon from the burdens of litigation. 

We are convinced that, much like the child protective service agents in 

Ducharm, party-retained expert witnesses play an integral role in our 

judicial prows s. 3 

The functional approach 

The functional approach is made up of three separate 

inquiries. Id. at 616, 55 P.3d at 424. First, we ask "whether the [person 

seeking immunity] performed functions sufficiently comparable to those of 

[persons] who have traditionally been afforded absolute immunity at 

common law." Id.; see also Butz v. Economou, 438 U.S. 478, 513 (1978) 

(comparing the role of a federal hearing examiner with the role of a judge 

and concluding that they are "functionally comparable"). Second, we 

consider "whether the likelihood of harassment or intimidation by 

personal liability [is] sufficiently great to interfere with the [person's] 

performance of his or her duties." Ducharm, 118 Nev. at 616, 55 P.3d at 

424; see also Butz, 438 U.S. at 513 (concluding that the fractious nature of 

adjudications within a federal administrative agency, and the likelihood of 

harassing litigation evolving therefrom, are similar to the judicial 

process). Third, we ask "whether procedural safeguards exist in the 

system that would adequately protect against [illegitimate] conduct by the 

[person seeking immunity]." Ducharm, 118 Nev. at 616, 55 P.3d at 424-25 

3See also Briscoe, 460 U.S. at 345-46 (noting that the participation of 

witnesses "in bringing the litigation to a just—or possibly unjust—

conclusion is . . . indispensable"). 

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(citing Caroline Turner English, Stretching the Doctrine of Absolute QuasiJudicial Immunity: Wagshal v. Foster, 63 Geo. Wash. L. Rev. 759, 765-66 

(1995)); see also Butz, 438 U.S. at 513 (concluding that federal 

administrative law requires many of the same safeguards as the judicial 

process and extending immunity to persons performing adjudicatory 

functions within federal agencies). 

Immunity at common law 

At common law, "Mlle immunity of parties and witnesses from 

subsequent damages liability for their testimony in judicial proceedings 

was well established." Briscoe, 460 U.S. at 330-31 (footnote omitted) 

(citing Cutler v. Dixon (1585) 76 Eng. Rep. 886; 4 Co. Rep. 14b.; Anfield v. 

Feverhill (1614) 80 Eng. Rep. 1113; 1 Ro Rep. 61; Henderson v. Broomhead 

(1859) 157 Eng. Rep. 964, 968; 4 M & N. 569). Quoting a 19th century 

court, the United States Supreme Court reasoned that "the claims of the 

individual must yield to the dictates of public policy, which requires that 

the paths which lead to the ascertainment of truth should be left as free 

and unobstructed as possible." Id. at 332-33 (quoting Calkins v. Sumner, 

13 Wis. 193, 197 (1860)). The Court further explained that "[a] witness's 

apprehension of subsequent damages liability might induce two forms of 

self-censorship." Id. at 333. First, a witness may be reluctant to present 

4As noted, Briscoe extended witness immunity to testifying police 

officers. 460 U.S. at 346. Justice Marshall dissented. Id. Notably, he 

argued that support for witness immunity at common law was not as wellrecognized as the majority presumed. Id. at 363 (Marshall, J., dissenting). 

Nonetheless, the U.S. Supreme Court has continued to recognize witness 

immunity as a well-established, common-law principle. See, e.g., Forrester 

v. White, 484 U.S. 219, 226 (1988). 

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testimony due to fear of subsequent damages liability. Id. Second, even if 

a witness makes it to the stand, he may color his testimony as a 

consequence of the same fear. Id. In particular, "[al 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." Id. Rather than 

subject witnesses to potential liability for their statements, "the truthfinding process is better served if the witness's 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 (internal quotation 

omitted); see also Imbler v. Pachtman, 424 U.S. 409, 439 (1976) (White, J., 

concurring) (stating that to find where the truth lies, a witness "must be 

permitted to testify without fear of being sued if his testimony is 

disbelieved"). The common law's protection for witnesses is therefore "a 

tradition ... well grounded in history and reason." Briscoe, 460 U.S. at 

334. 

The looming threat of liability 

We next consider whether harassment or intimidation by 

threat of personal liability may interfere with a party-retained expert's 

duties. As to experts appointed by the court, we have concluded that 

"[e]xposure to liability could deter their acceptance of court appointments 

or color their recommendations." Duff v. Lewis, 114 Nev. 564, 569, 958 

P.2d 82, 86 (1998) (internal quotation omitted). When we recognized 

immunity for court-appointed experts, we offered that our purpose was to 

"preserve the . . . truthfulness of critical judicial participants without 

subjecting them to the fear and apprehension that may result from a 

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threat of personal liability." Id. at 568-69, 958 P.2d at 85. Our decision to 

extend absolute immunity, then, removed the possibility that courtappointed experts would become a "lightning rod for harassing litigation." 

Id. at 569, 958 P.2d at 86 (internal quotation omitted). 

After considering the threat of liability posed to courtappointed experts together with the threat faced by party-retained 

experts, we conclude that the threat faced by party-retained experts is as 

great as, or greater than, the threat to court-appointed experts, for whom 

we have previously recognized absolute immunity See, e.g., id. at 571, 

958 P.2d at 87 (recognizing immunity for a court-appointed psychologist 

making a child custody recommendation). Both classes of experts, 

notwithstanding source of hire, risk exposure to lawsuits when providing 

expert opinions as participants in contentious judicial proceedings. See 

Butz, 438 U.S. at 512 (explaining that devoid of absolute immunity, 

judicial participants risk exposure to liability). Court-appointed experts, 

however, are afforded the cloak of neutrality associated with their 

appointments. See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting that 

court-appointed experts' purpose is to act in an objective and independent 

manner). In contrast, party-retained experts, like the often imposed label 

"hired gun" denotes, are strongly associated with the hiring party. And as 

a consequence of their relationship with the hiring party, the hired gun 

will likely share in the threat of liability arising from the losing party's 

animus. As the Butz Court explained: "[Clontroversies 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 [unlawful] animus." 438 U.S. at 512. Accordingly, to grant 

absolute immunity to court-appointed experts, who might avoid a losing 

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party's animus by demonstrating objectivity, but to refuse it to partyretained experts, who likely face greater animus by association, would be 

to expose party-retained experts as a "lightning rod for harassing 

litigation." Duff, 114 Nev. at 569, 958 P.2d at 86 (quoting Lavit v. 

Superior Court, 839 P.2d 1141, 1144 (Ariz. Ct. App. 1992)). 

We further conclude that the looming threat of liability would 

interfere with party-retained experts' duties. The potential for liability 

could encumber access to experts in two ways. First, party-retained 

experts would be discouraged from accepting retainers. See id. at 570, 958 

P.2d at 86 (noting that exposure to liability could deter court-appointed 

experts from accepting appointments). Second, experts would be forced to 

carry insurance or set retainers exorbitantly high to warrant the risk of 

taking the stand, putting their price tag out of reach for many parties. 

The Washington Supreme Court explained- "[I]mposing civil liability on 

expert witnesses would discourage anyone who is not a full-time 

professional expert witness from testifying. Only professional witnesses 

will be in a position to carry insurance to guard against such liability." 

Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 776 P.2d 666, 670 (Wash. 

1989). Even if a party is able to retain an expert who dares to risk 

collateral suit by taking the stand, and is additionally able to afford the 

expert's price tag, the retained expert may dilute or distort disagreeable 

conclusions to reduce the risk of liability. See Briscoe, 460 U.S. at 332 

(noting that the threat of liability would cause witnesses to distort candid 

opinions). Thus, we conclude that to permit collateral actions against 

party-retained experts based on statements made during judicial 

proceedings would be to discourage candid expert opinions and to suppress 

access. See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting that exposure of 

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court-appointed experts to suit would likely cause a chilling effect on 

acceptance of court appointments). And in so doing, we will have stifled 

the ascertainment of truth, a result we seek to avoid. See Briscoe, 460 

U.S. at 332 (noting that the path to truth is obstructed by witness's selfcensoring). 

Procedural safeguards as remedies 

As to the final consideration, whether remedies and 

safeguards other than civil liability are sufficient to hold party-retained 

experts accountable for their conduct, we conclude that they are. In Duff, 

we recognized the availability of cross-examination, change of venue, 

imposition of sanctions, and appellate review as adequate safeguards. 114 

Nev. at 571, 958 P.2d at 87. Other jurisdictions have similarly recognized 

the adequacy of procedural safeguards built into the judicial system. See 

Lythgoe v. Guinn, 884 P.2d 1085, 1089 (Alaska 1994) (recognizing that 

change of venue and appellate review are adequate procedural safeguards 

to hold court-appointed experts accountable for negligence); LaLonde v. 

Eissner, 539 N.E.2d 538, 542 (Mass. 1989) (observing as adequate the 

availability of cross-examination, appellate review, and a request for 

modification). The United States Supreme Court has additionally 

acknowledged the check on unpersuasive evidence provided by the 

impartial trier of facts as a procedural safeguard. See Butz, 438 U.S. at 

517 ("Evidence which is false or unpersuasive should be rejected upon 

analysis by an impartial trier of fact."). 

Here, Vivian was at liberty to avail herself of any number of 

remedies. For instance, she might have cross-examined Dr. Roitman to 

establish the negligent method from which his diagnosis and prognosis 

10 
were derived. We note, however, that the extent to which Vivian actually 

took advantage of available remedies is unclear from the record.° Even so, 

our determination is not contingent upon a factual finding that Vivian 

successfully utilized the remedies at her disposal. Thus, we satisfy the 

final query of the functional approach by simply noting the existence of 

these safeguards See Duff, 114 Nev. at 570, 958 P.2d at 86 (noting the 

existence of procedural remedies, but not questioning whether the 

claimant actually availed himself); see also Ducharm, 118 Nev. at 616, 55 

P.3d at 425 (noting that the third inquiry is "whether procedural 

safeguards exist" (emphasis added)). 

Absolute immunity under Nevada law 

Despite our conclusions, derived from the United States 

Supreme Court's functional approach and grounded in common law, 

Vivian argues that Nevada has not, and should not now, extend the 

defense of absolute immunity beyond defamation claims. We note that the 

cases of Duff and Foster negate Vivian's assertion. In Duff, we applied 

absolute immunity to a court-appointed psychologist accused of negligence 

in making a child custody recommendation amidst allegations of child 

abuse. 114 Nev. at 571, 958 P.2d at 87. Similarly, in Foster v. Washoe 

County, we granted absolute immunity to court-appointed special 

advocates sued for negligent investigation of child abuse. 114 Nev. 936, 

943, 964 P.2d 788, 793 (1998). These applications of absolute immunity to 

claims for negligence demonstrate that we have not limited the doctrine's 

5The district court questioned Vivian's failure to exclude Dr. 

Roitman as an expert witness, to impeach his testimony, or to seek 

sanctions, but this discussion failed to make the record more clear. 

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application to claims for defamation. 6This court has not in fact made an 

issue of the type of claim brought when considering the availability of an 

absolute immunity defense, and we do not at present find good reason to 

depart from that convention. 

An unobstructed path to truth 

Vivian additionally argues that because expert witnesses are 

procured to testify to the benefit of a hiring party, the goal of ensuring 

that the path to truth is unobstructed is not advanced by immunizing 

experts from negligence. She argues that the immunity that applies to a 

court-appointed expert, who is a neutral expert appointed by the court to 

assist the trier of fact, should not be afforded to a party-retained expert, 

who is a partisan witness advocating a position for a party. We disagree. 

Experts may be sought after and procured subject to the understanding 

that they will provide statements in support of a party's particular 

position. However, under the law, an expert opinion is not admitted to 

assist one party or the other; rather, it is admitted to assist the trier of 

6The common-law and United States Supreme Court jurisprudence 

indicate that absolute immunity protects witness statements made during 

judicial proceedings from tort liability in general and do not limit absolute 

immunity's application to defamation claims. See Briscoe, 460 U.S. at 335 

("[T]he common law provided absolute immunity from subsequent 

damages liability for all persons—governmental or otherwise—who were 

integral parts of the judicial process." (emphasis added)). We note, 

however, that our application of absolute immunity has limitations. See 

Alioto v. City of Shively, 835 F.2d 1173, 1174 n.1 (6th Cir. 1987) ("[T]he 

doctrine of witness immunity does not shield from liability alleged 

conspiracies to falsify nontestimonial evidence."). Our adoption of the 

doctrine does not protect an expert's fraudulent acts. 

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fact by providing specialized knowledge. NRS 50.275; 7 see also Panitz v. 

Behrend, 632 A.2d 562, 565 (Pa. 1993) ("The primary purpose of expert 

testimony is not to assist one party or another in winning the case but to 

assist the trier of the facts in understanding complicated matters."). Once 

testimony is admitted, it is for the trier of fact to weigh the credibility of 

the expert's opinion and for additional safeguards to advance truthfinding. See Briscoe, 460 U.S. at 333-34 (noting that the fact-finder 

determines where the truth lies). It is in this light we conclude that the 

path to truth is best paved by immunizing expert witnesses, courtappointed or party-retained, from tort liability. 

Accordingly, even if the factual allegations contained in 

Vivian's complaint were true, as a matter of law, Dr. Roitman's defense of 

absolute immunity precludes her claim, and the district court properly 

dismissed each of her causes of action. 8 

7NRS 50.275 provides: "If scientific, technical or other specialized 

knowledge will assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by special 

knowledge, skill, experience, training or education may testify to matters 

within the scope of such knowledge." 

8Dr. Rottman also contends that there was no doctor-patient 

relationship, and thus, he owed no duty of care to Vivian. We conclude 

that our holding as to absolute immunity is dispositive, and we therefore 

need not address this issue. 

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Parraguirre 

Cherry 

Gibbons 

Based on the foregoing, we affirm the district court's order of 

dismissal. 

We concur: 

, C. J. 

Hardesty 

J. 

J. 

J. 

J. 

Pickering 

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