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  • © The Regents of the University of California, 2010-2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Sometimes You’re Legally Right and Legally Wrong

459956463The following is a guest blog by Alan M. Goldberg of the Law Office of Alan Goldberg. Alan’s practice includes Appeals, Civil Trials, and Family Law. You can follow Alan on Twitter @AlanMGoldberg.

The law can have some seemingly unfair results, especially when the litigation privilege gets involved. Sometimes you’ve got the key evidence showing you’re legally right, but then the privilege pops up and makes it legally wrong to use it.

Here’s a scenario that illustrates this point: Jack meets Jill at a bar called Pods. They begin dating and things are great. They are in love, and two months later, they decide to get married. One problem: Jill is pregnant. Yeah, it could be Jack’s, but it’s only been two months so he’s not sure. Somehow county officials get wind of the pregnancy and file a paternity action against Jack. The happy couple agrees to a paternity test by a county lab. The county lab sends a letter with the test results to the parents and the county’s attorney to be used as evidence. The letter states that the test result is negative; Jack is 99.99% excluded as the biofather.

Eight years later, Jack is seeing a lot of himself in junior and asks for a retest at a different facility. The new test comes back positive. Jack and Jill sue the county lab seeking damages for negligence. Seems like an easy case? Think again. The court dismisses the case under an interesting law called the “litigation privilege.”

In California, the litigation privilege is found in CCP §47(b). This section states that a witness who makes a communication in and related to a judicial proceeding is protected from being sued for the statement.

A similar chronicle occurred in the case of Falcon v Long Beach Genetics, Inc. (2014) ___ CA4th ___. The Fourth District Court of Appeal’s ruling in that case helps us understand Jack & Jill’s situation.

In Falcon, the lab’s letter with the first DNA results showed the lab’s negligence in performing the DNA test. This letter provides the grounds for the parents’ suit against the lab, but it is also a communication in and related to the paternity litigation and is thus protected by the litigation privilege. The court held that the privilege protects the lab such that the lab can’t be sued even though it was negligent. The application of the litigation privilege is found to further California public policy.

What public policy is it that could justify the denial of a viable claim against a clearly negligent defendant? The California legislature has determined, in passing the litigation privilege legislation, that it’s necessary to protect witnesses who give evidence at a judicial proceeding so they can testify without the threat of litigation for their testimony and that it’s important to bring finality to litigation. If new law suits were permitted to spin-off prior law suits, then the litigation could go on forever.

So, the parents were legally right and legally wrong; they had the smoking gun letter as a basis for their suit, but they were barred from using it.

See how the litigation privilege impacts various tort claims in CEB’s California Tort Damages.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

2 Responses

  1. Hmm….this is interesting. I can see where such a privilege might be a good idea in cases where an individual witness is testifying in good faith but his memory or perception might be imperfect. E.g., a witness testifies in good faith that he saw a person commit a burglary, but describes the burglar somewhat inaccurately (wrong ethnicity, inaccurate age, etc.).

    But in cases where a lab is testing a tissue (or other) sample and has ample time to conduct the test and record the factual test results, I don’t see where a litigation privilege furthers any legitimate public policy. Maybe the statute should be modified?

  2. Dear Miles:
    Yours is a good argument. But, when we consider how easily witnesses can be intimidated by the threat of a lawsuit, I think the broad public policy is better as it protects all witnesses. Alan Goldberg, alangoldberglaw@gmail.com, @AlanMGoldberg.

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