UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SAMMY LEWIS, JOHN MILLER,

SHAWNE HENRY, CHRISTINE SINGLETON,

DANIEL HONOWAY, DANIEL DIDONATO,

ROBERTA CAREVIC, JANET CONFORTO,

ANGELA JONES, and MICHAEL BELLEVILLE,

on behalf of themselves and other persons

similarly situated,

Plaintiffs, CASE NUMBER: 09-11059

HONORABLE VICTORIA A. ROBERTS

v.

DR. PAUL DROUILLARD, UNITED PARCEL

SERVICE, and LIBERTY MUTUAL INSURANCE

COMPANY,

Defendants.

 / 

ORDER

I. INTRODUCTION

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. Dr. Drouillard moved to dismiss

claims against him on witness-immunity grounds, but the Court denied his motion on

March 22, 2010. (Dkt. #49). 

Plaintiffs and Dr. Drouillard filed timely cross-motions to reconsider the March 22

Order. (Dkt. ##50, 51.) On April 16, 2010, Plaintiffs filed a response to Dr. Drouillard’s

motion to reconsider. (Dkt. #52.) Dr. Drouillard moved to strike Plaintiffs’ response

(Dkt. #53), pursuant to E.D. Mich. LR 7.1(h)(2) (no response to motion for
2

reconsideration unless the court orders otherwise). Plaintiffs moved for leave to file

their response anyway. (Dkt. #54.)

For reasons stated, the Court CLARIFIES its findings of March 22, 2010, and

DENIES Plaintiffs’ and Dr. Drouillard’s motions for reconsideration. In addition, the

Court GRANTS Dr. Drouillard’s motion to strike, STRIKES Plaintiffs’ response to Dr.

Drouillard’s motion for reconsideration, and DENIES Plaintiffs’ application for leave to

respond.

II. BACKGROUND

Michigan’s Workers’ Disability Compensation Act, Mich. Comp. Laws (“M.C.L.”) §

418.101 et seq., allows employers and insurers to compel applicants for benefits to

submit to an independent medical examination (“IME”). § 418.385. Disputes over

compensation and benefits must be referred to the Workers’ Compensation Agency

(“WCA”), for resolution by a workers’ compensation magistrate. § 418.841, .847. The

party aggrieved by the magistrate’s decision may file an appeal to the Michigan

Worker’s Compensation Appellate Commission (“WCAC”). § 418.861a. The WCAC

considers the magistrate’s findings of fact conclusive if they are “supported by

competent, material, and substantial evidence on the whole record.” § 418.861a(3). 

Upon leave granted, the WCAC’s decision may be appealed to the Michigan Court of

Appeals and the Michigan Supreme Court. § 418.861a(14). On judicial appeal, the

WCAC’s findings of fact are considered conclusive, if “made by the commission acting

within its powers, [and] in the absence of fraud.” Id.

Plaintiffs are UPS employees whose workers’ compensation disability benefits
3

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. 

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. On July 20, 2009, Dr. Drouillard moved to dismiss, arguing that,

under the doctrine of witness immunity, he is not liable for testimony given to the WCA,

or for IME reports prepared and submitted as evidence in WCA hearings.

On March 22, 2010, the Court denied Dr. Drouillard’s motion to dismiss. Relying

on Alioto v. Shively, 835 F.2d 1173 (6th Cir. 1987), Spurlock v. Satterfield, 167 F.3d 995

(6th Cir. 1999), and Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006), the Court

held that Dr. Drouillard’s IME reports are nontestimonial, documentary evidence which

are not protected by testimonial immunity. However, the Court held that Dr. Drouillard

can claim absolute witness immunity for testimony to the WCA.

II. APPLICABLE LAW

A court may grant reconsideration under Fed. R. Civ. P. 59(e) if it finds: “(1) a

clear error of law; (2) newly discovered evidence; (3) an intervening change in
4

controlling law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson,

428 F.3d 605, 620 (6th Cir. 2005) (citing GenCorp, Inc. v. Am. Int’l Underwriters, 178

F.3d 804, 834 (6th Cir. 1999)). In addition, this Court–

will not grant motions for rehearing or reconsideration that merely present

the same issues ruled upon by the court, either expressly or by

reasonable implication. The movant must not only demonstrate a

palpable defect by which the court and the parties have been misled but

also show that correcting the defect will result in a different disposition of

the case.

E.D. Mich. LR 7.1(g)(3). A “palpable defect” is one which is obvious, clear,

unmistakable, manifest, or plain. Ososki v. St. Paul Surplus Lines Ins. Co., 162 F.

Supp. 2d 714, 718 (E.D. Mich. 2001) (citing Mktg. Displays, Inc. v. Traffix Devices, Inc.,

971 F. Supp. 262, 278 (E.D. Mich. 1997)).

On motion by one of the parties, a court may also amend its findings, or make

additional findings, and amend the judgment accordingly. Fed. R. Civ. P. 52(b).

III. ANALYSIS

Both parties ask the Court to clarify the March 22 Order with regard to testimony

submitted to the WCA in deposition form. The Court addresses this question first.

A. Immunity for Deposition Testimony

The parties did not previously raise the issue of whether Dr. Drouillard should be

absolutely immune for testimony consisting only of a sworn deposition. Each party

raises a different question with regard to depositions.

1. Depositions in General

Plaintiffs ask the Court to amend its Order to clarify Dr. Drouillard’s immunity

when he testifies to the WCA by deposition. Plaintiffs argue that deposition testimony
5

deprives the fact finder – in this case, the WCA magistrate – of the ability to observe a

witness’s demeanor and to question the witness directly. Counsel submits that the

absence of live testimony deprives WCA proceedings of a critical safeguard to ensure

the truthfulness of witnesses. In the absence of such protections, Plaintiffs argue Dr.

Drouillard should not benefit from absolute immunity for deposition testimony.

Workers’ compensation proceedings in Michigan are not required to strictly abide

by state rules of evidence. Edward M. Welch & Daryl C. Royal, Worker’s Compensation

in Michigan: Law & Practice § 17.36 (Institute of Continuing Legal Education, 5th ed.

2007). Often, the plaintiff-claimant is the only witness to testify in person at a WCA

hearing. Id. at § 17.48. Typically, medical testimony is taken by deposition, at the

doctor’s office. Id. at § 17.35. Nevertheless,

agencies must respect the due process rights of parties to cross-examine

adverse witnesses. A deposition is not admissible in court against a party

who is not notified of or present at its taking. To the extent that this

evidentiary rule protects the due process rights of parties, it is equally

applicable to agency proceedings.

Cooper v. Chrysler Corp., 125 Mich. App. 811, 818-19, 336 N.W.2d 877 (Ct. App. 1983)

(citations omitted). Plaintiffs do not allege they were deprived of the ability to crossexamine Dr. Drouillard.

The Sixth Circuit holds that “the form of the witness testimony should not affect

the status of the immunity attached thereto.” Todd v. Weltman, Weinberg & Reis Co.,

L.P.A., 434 F.3d 432, 440 (6th Cir. 2006). Todd cites with approval Giffin v. Summerlin,

in which the Seventh Circuit stated: 

The policy considerations underlying witness immunity for testimony in

open court apply with equal force to other forms of testimony such as

depositions and affidavits. The threat of a lawsuit for damages can have
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the same intimidating effect on a witness who testifies by deposition as

one who testifies in court. Testimony by deposition is an important part of

the judicial process and merits the same protection as in-court testimony.

78 F.3d 1227, 1231 (7th Cir. 1996) (internal citations omitted).

Todd and Giffin leave no doubt that witness immunity extends to testimony

submitted by a deposition placed into evidence at a WCA hearing.

Plaintiffs also distinguish between depositions actually submitted to a hearing

and those that are not. They claim 90% of workers’ compensation claims are settled

without a hearing, based in part on deposition testimony from IME physicians. The

Court found no case law on this issue. However, logic dictates that witness immunity

covers depositions even when no hearing occurs, because the need to promote truthful

testimony exists regardless of whether a case goes to trial. In Briscoe v. Lahue, the

Supreme Court explained that a witness’s apprehension of subsequent liability might

induce two forms of self-censorship: distortion of actual testimony, and reluctance to

come forward to testify. 460 U.S. 325, 333 (1983). If witnesses in settled cases faced

liability for statements made in depositions, very few people would be inclined to testify

at all, and the truthfinding process would suffer significant prejudice.

The doctrine of witness immunity protects testimony given in deposition form,

regardless of whether a WCA hearing takes place. Therefore, the Court must address

whether everything contained in these depositions is equally protected.

2. IME Reports Transcribed in Depositions

Dr. Drouillard states that, when physicians testify by deposition to the WCA, “[i]t

is common practice for the doctor to incorporate his report in the deposition transcript by

having the court reporter type the report into the record verbatim.” (Drouillard’s Mot.
7

Reconsider 8.) He argues that, if depositions command absolute witness immunity, IME

reports transcribed therein should be covered as well.

The Sixth Circuit’s witness-immunity doctrine precludes this result. In Gregory,

the Sixth Circuit held that expert-witness reports exist independently from the witness’s

judicial testimony, even if the reports are prepared in anticipation for possible judicial

proceedings. 444 F.3d at 741. The court noted that an expert report is a piece of

documentary evidence that affects the course of a judicial proceeding independent of

the witness’s testimony to its contents. Id. The same is true for IME reports, which

maintain a separate existence and can affect a claim for benefits regardless of whether

a WCA hearing occurs.

Furthermore, giving immunity to IME reports merely because they are part of a

deposition would defeat the purpose of holding witnesses accountable for pre-trial

fabrication of evidence. In Spurlock, the Sixth Circuit unequivocally held: “The simple

fact that acts may ultimately lead to witness testimony does not serve to cloak these

actions with absolute testimonial immunity.” Spurlock, 167 F.3d at 1001 (citing with

approval Mastroianni v. Bowers, 160 F.3d 671, 677 (11th Cir. 1998) (testimonial

immunity does not “relate backwards” to “protect [a defendant] for any activities he

allegedly engaged in prior to taking the witness stand for his grand jury testimony.”)).

For these reasons, the Court holds that, although Dr. Drouillard is absolutely

immune from liability for testimony in deposition form, these protections do not extend to

his IME reports, even when they are incorporated verbatim into his depositions.

B. Plaintiffs’ Motion to Reconsider

Plaintiffs take issue with the Court’s ruling in two significant respects. First, they
8

argue that expert witnesses should not receive immunity for testimony in administrative

proceedings. Second, they disagree that WCA hearings are the functional equivalent of

judicial proceedings, because applicants for workers’ compensation benefits cannot

raise fraud claims before the WCA.

1. Expert Witnesses

Plaintiffs argue that Butz v. Economou, 438 U.S. 478 (1978), on which this Court

relies, did not determine whether expert witnesses who testify at administrative hearings

can claim absolute witness immunity. It is true that Butz deals only with immunity

protections of administrative law judges and officials who perform functions of a

prosecutorial nature. In this Court’s opinion, however, the holding of Butz extends

beyond these categories. 

Butz repeatedly puts witnesses on the same level as judges and prosecutors, as

trial participants for whom absolute immunity is necessary to “perform their respective

functions without harassment or intimidation.” Id. at 512. In addition, there is nothing to

suggest that the Supreme Court intended to limit Butz to administrative law judges and

agency lawyers acting as prosecutors. To the contrary, the Court states: “We think that

adjudication within a federal administrative agency shares enough of the characteristics

of the judicial process that those who participate in such adjudication should also be

immune from suits for damages.” Id. at 512-13 (emphasis added).

The Court sees no reason to draw an artificial distinction between lay and expert

witnesses, nor do Plaintiffs provide case law to support their argument. 

2. Inability to Raise Fraud Claims in WCA Proceedings
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Plaintiffs argue that limitations on discovery in WCA proceedings prevent

claimants from obtaining or introducing evidence of conspiracy or fraud. Counsel for

Plaintiffs has over 20 years of experience practicing workers’ compensation law in

Michigan. He explains that because the issues in WCA proceedings are limited, the

scope of discovery is correspondingly reduced. Therefore, the plaintiff in a WCA

proceeding cannot discover how many IME reports a particular doctor wrote for an

insurer over a given period, how much compensation he received in return, or any other

evidence that might reveal fraud or collusion between the insurer and the doctor. 

Moreover, even if the plaintiff seeks to introduce evidence of fraud by the IME doctor,

the magistrate will exclude the documents as irrelevant to the proceeding at hand. 

Plaintiffs state that the ability to discover and introduce evidence of fraud is an

important protection which exists in judicial proceedings, but not in hearings before the

WCA. They argue that the absence of such protection renders WCA hearings and

judicial proceedings functionally incomparable, and therefore, the same witnessimmunity rules should not apply to both. 

The fact that certain types of claims cannot be made at WCA hearings has little

bearing on their functional comparability with judicial proceedings. Many courts are

restricted in their ability to hear certain claims. Limited jurisdiction is also a typical

feature of administrative adjudication. See Harborlite Corp. v. Interstate Commerce

Com., 613 F.2d 1088, 1092 (D.C. Cir. 1979) (“The paramount strength of administrative

adjudication is its efficient processing of massive amounts of complex and specialized

litigation.”). Lastly, the Supreme Court does not identify the ability to hear certain claims

as a “characteristic of the judicial process.” Instead, the Court cites only:
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(a) the need to assure that the individual can perform his functions without

harassment or intimidation; (b) the presence of safeguards that reduce the

need for private damages actions as a means of controlling

unconstitutional conduct; (c) insulation from political influence; (d) the

importance of precedent; (e) the adversary nature of the process; and (f)

the correctability of error on appeal.

Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz, 438 U.S. at 512).

This Court found that WCA hearings bear all the hallmarks of the judicial

process: they are conducted by a magistrate serving in an adjudicative capacity only;

the parties are represented by lawyers, and may call upon, and cross-examine,

witnesses; WCA determinations are subject to appeal to the WCAC, and judicial review

by the Michigan Court of Appeals or the Michigan Supreme Court. These courts may

set aside the WCAC’s findings of fact upon a showing of fraud. M.C.L. § 418.861a(14).

The fact that WCA proceedings cannot adjudicate claims of fraud does not

deprive them of their functional comparability to the judicial process. 

C. Dr. Drouillard’s Motion to Reconsider

Dr. Drouillard contends that the March 22 Order is plainly defective because it

applies the “functional approach” test to determine whether he is entitled to witness

immunity. He also argues the Court erred by not relying on Kahn v. Burman, 673 F.

Supp. 210 (E.D. Mich. 1987).

Before addressing the first argument, it is helpful to summarize the Court’s

reasoning in dismissing Dr. Drouillard’s motion.

At federal common law, witnesses are absolutely immune from civil liability based

on their testimony in judicial proceedings. The Supreme Court recognizes two kinds of

immunity defenses: absolute immunity, which protects persons “whose special functions
1

 Of course, the result is different when a public official performs a function which

is not afforded immunity protection at common law. In that case, the official remains

entitled to a restricted, i.e., “qualified,” immunity, as long as he does not violate “clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Harlow, 457 U.S. at 818. 

2 The discussion of qualified immunity occurs only if the court determines that

absolute immunity does not apply. See, e.g., Spurlock, 167 F.3d at 1004 (“Having

rejected [the defendant’s] argument that he is entitled to absolute testimonial immunity .

. . , we now turn to [whether] he is entitled to qualified immunity for these acts.”). 

11

or constitutional status requires complete protection from suit,” and qualified immunity,

which applies to “government officials performing discretionary functions.” Harlow v.

Fitzgerald, 457 U.S. 800, 807, 818 (1982). 

To determine which type of immunity applies, the Supreme Court employs “a

‘functional approach,’ which looks to ‘the nature of the function performed, not the

identity of the actor who performed it.’” Buckley v. Fitzsimmons, 509 U.S. 259, 269

(1993) (quoting Burns v. Reed, 500 U.S. 478, 486 (1991); Forrester v. White, 484 U.S.

219, 229 (1988)). If a private party or a government official performs a function to which

immunity protections attach, that person is entitled to absolute immunity. If there is no

common-law immunity for the particular function performed, the private party can claim

no protection.1

Absolute immunity is not without boundaries, however. These limits are defined

by a variety of appellate and Supreme Court cases, including civil rights claims against

public officials under 42 U.S.C. § 1983. In these cases, courts typically start by asking

whether the function performed is entitled to absolute immunity, which, in turn, compels

them to trace the contours of absolute immunity. This is why § 1983 cases are so

relevant to the question raised by Dr. Drouillard.2
12

The Sixth Circuit holds that absolute immunity does not extend to claims that a

witness fabricated non-testimonial, documentary evidence, like an expert report. The

court reasons that expert reports exist independently from the witness’s testimony, even

if they are prepared in anticipation for possible litigation. Gregory, 444 F.3d at 740-41. 

Dr. Drouillard’s IME reports are nontestimonial, documentary evidence; therefore, he is

not entitled to absolute immunity from claims of falsifying evidence.

1. “Functional Approach” Test

Dr. Drouillard claims the Court erroneously applied the functional approach test

to determine whether he is entitled to witness immunity. The Court did no such thing. 

As the summary above shows, the Court mentioned the functional approach in the

process of explaining why, contrary to Dr. Drouillard’s assertion, § 1983 jurisprudence

bears directly on his witness-immunity claim, even though most immunity claimants in §

1983 cases are public officials. This didactic attempt apparently failed, because Dr.

Drouillard continues to insist that Alioto, Spurlock, and Gregory are inapposite because

they deal with state officials. However, Dr. Drouillard provides no ground to reconsider

the March 22 Order. The Court still holds that the law of absolute witness immunity, as

construed by § 1983 cases, applies by default in all federal claims, unless the

underlying statute provides otherwise.

2. Applicability of Kahn v. Burman

Dr. Drouillard argues the Court was mistaken in failing to grant his motion based

on the reasoning of Kahn v. Burman, 673 F. Supp. 210 (E.D. Mich. 1987) (Churchill, J.). 

The Court will not repeat the reasons why Kahn does not govern. In any case,
13

Dr. Drouillard relies less on Kahn’s precedential weight than its policy arguments, in

particular the notion that without absolute witness immunity, physicians will be so chilled

from performing IMEs that no doctor will be willing to evaluate the legitimacy of workers’

compensation claims. 

The Court explained why this argument is fails, in part because IME physicians

have a pecuniary interest in testifying, which ordinary witnesses do not share. Thus,

even if Dr. Drouillard’s predictions came to pass, and lawsuits against IME physicians

increased substantially, the market would adjust to compensate them accordingly.

Furthermore, claimants desiring to sue IME physicians must comply with Federal

Rule of Civil Procedure 9(b), which requires fraud claims to be “state[d] with

particularity.” This higher pleading standard, which does not apply to medical

malpractice and other tort claims, reduces the risk of having to defend against frivolous

lawsuits. See, e.g., Brightman v. Freeway Assoc., No. 90-4072, 940 F.2d 658, 1991

WL 151057, 1991 U.S. App. LEXIS 19069, at *5-6 (6th Cir. Aug. 8, 1991) (unreported

table case) (upholding district court’s dismissal of RICO claim for failure to plead with

sufficient particularity).

IV. CONCLUSION

Plaintiffs and Dr. Drouillard fail to state a legitimate reason for the Court to

reconsider its Order Denying Dr. Drouillard’s Motion to Dismiss. (Dkt. #49.) Therefore,

the Court DENIES Plaintiffs’ and Dr. Drouillard’s motions for reconsideration. (Dkt.

##50, 51.)

In addition, the Court:
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1. GRANTS Dr. Drouillard’s motion to strike (Dkt. #53);

2. STRIKES Plaintiffs’ motion to respond to Dr. Drouillard’s motion for

reconsideration (Dkt. #52);

3. DENIES Plaintiffs’ motion for leave to respond to Dr. Drouillard’s motion

for reconsideration (Dkt. #54); and

4. AMENDS its Order of March 22, 2010, and HOLDS that: (1) Dr. Drouillard

is absolutely immune for testimony given by deposition, regardless of

whether a WCA hearing is planned or occurs; and (2) immunity does not

extend to IME reports, even when incorporated verbatim into depositions.

IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: August 30, 2010

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

August 30, 2010.

s/Carol A. Pinegar 

Deputy Clerk