Mark K. Patton, M.D., a Single Man v. Lynn Jacob Cox, Wife, and as Independent of the Last Will of Michael D. Cox

HARLINGTON WOOD, JR., Circuit Judge,

dissenting:

The majority opinion is thoughtful and well written. I view this as a close case, but I believe the Arizona district court was correct and would affirm. Involved is a question of Arizona law relating to the immunity of a witness, Dr. Cox, now deceased, with his estate substituted as defendant. Dr. Cox testified in 1998 at a disciplinary hearing of the Arizona Board of Medical Examiners (“BOMEX”) involving plaintiff, Dr. Patton, who practices pediatric medicine.

The background facts are set out in the majority opinion which interprets existing Arizona law to preclude immunity to Dr. Cox. However, if the Arizona Supreme *501Court were to consider the circumstances in this case, some of which I will explain, I am not reluctant to predict that it would grant immunity to Dr. Cox.

Dr. Patton does not dispute either the accuracy or truth of Dr. Cox’s testimony before BOMEX, and concedes that witnesses ordinarily have absolute immunity in respect to their testimony, including at quasi-judicial proceedings.

There is no need to pursue the factual background, but there are some details which I believe need to be emphasized. Dr. Patton was not a patient of Dr. Cox which would have allowed Dr. Patton to invoke the confidentiality of a doctor-patient relationship. The examination of Dr. Patton by Dr. Cox was pursuant to a 1998 order of a Utah state court in a divorce case pending between Dr. Patton and his former wife. The primary issue was the sexual abuse by Dr. Patton of his teenage sister-in-law as that abuse related to child visitation and custody issues. Dr. Cox was a licensed psychologist and associate professor of psychiatry at Baylor College of Medicine in Houston, Texas. He was well known in his areas of expertise, including sexual abuse and sex offender issues. The sordid details of the relationship between Dr. Patton and the teenager are conceded by plaintiff and need not be detailed here, except to note that Dr. Cox diagnosed the plaintiff as possessing 'characteristics of a sex offender, a pedophile with personality disorders.

Just before Dr. Cox was to perform his evaluation of Dr. Patton, Dr. Patton claims he asked Dr. Cox to keep confidential the results of the court-ordered examination. Dr. Cox explicitly denied he entered into any such agreement with Dr. Patton. I see no need to reach this issue, but even if we assume such an agreement existed, it could have no validity as it lacked consideration since the examination was being done under court order. If Dr. Patton was concerned about adverse publicity, and he had already had considerable, he might have asked the Utah court to condition or qualify its order, but he did not. The Utah court was best suited to interpret its own order. As it turned out, Dr. Cox was never called to testify in Utah as the divorce case was settled.

Later, after the evaluation of Dr. Patton, Dr. Cox stated that he was contacted by an Arizona assistant attorney general to come to Arizona to testify at the BOMEX hearing concerning Dr. Patton’s fitness to practice medicine. A complaint had been filed with the Board by Dr. Patton’s former sister-in-law, the victim of his previous sexual abuse. Dr. Cox complied, went to Arizona, and appeared as an expert called by the State. He was compensated accordingly. The BOMEX resulting Order of February 3, 1999, found that Dr. Patton had engaged in unprofessional conduct and imposed discipline as follows:

1.. Respondent is placed on probation for a minimum of five years;
2. Respondent shall always have a female chaperone present when he examines female patients and the chaperone shall initial the patient’s chart at the time of the examination;
3. Respondent shall undergo psychotherapy with a Board approved therapist. The therapist shall provide the Board with quarterly reports;
4. Respondent shall practice in a structured practice setting; and,
5. Respondent is prohibited from examining the breast and genitalia of female patients 10 years of age and older.

It is inconceivable to me that as a matter of public policy so closely related to the health and safety of citizens of Arizona that the Arizona Supreme Court would strip Dr. Cox of his immunity and subject *502him to possible penalties. Otherwise witnesses would be reluctant to testify, or might tend to distort their testimony. In a child custody case from my own state, Bond v. Pecaut, 561 F.Supp. 1037, 1039 (N.D.I11.1983), the district court noted, “In the final analysis, we think that public policy is served if persons with knowledge of relevant facts can report to the courts without fear of civil liability.” See also Briscoe v. LaHue, 460 U.S. 325, 332-33, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In discussing absolute immunity of witnesses, the Supreme Court held that the dictates of public policy suggest that a witness without immunity might “be inclined to shade his testimony in favor of a potential plaintiff,” and in so doing “deprive the finder of fact of candid, objective and undistorted evidence.” Id. at 333, 103 S.Ct. 1108. In Arizona’s inquiry into the fitness of one of the state’s licensed doctors, the full unslanted truth would be crucial to protect the health and welfare of its citizens.

Public policy reasons are more than adequate in the circumstances of this case to support immunity. I do not regard this case as a mere private contract dispute based upon, at best, a very dubious alleged contractual relationship claimed by Dr. Patton and completely denied by Dr. Cox. To deprive Dr. Cox of immunity in these circumstances would be a great disservice not only to Dr. Cox but to the citizens of Arizona.

I must respectfully dissent.