Criminal attorneys are familiar with the Brady rule that requires the government to disclose to a criminal defendant evidence favorable to his defense. See Brady v. Maryland, 373 U.S. 83, 86-87 (1963).
Can an argument be made to extend the Brady rule to civil litigation between two private adversaries? More specifically, under certain circumstances, might a party be obligated to disclose unfavorable reports by its non-testifying experts to its opponent? The 4th Circuit recently entertained, and rejected such propositions in Fox v. Elk Run Coal Co., Inc., 2014 WL 26556 (4th Cir. Jan. 3, 2014). The decision provides an enlightening review of the appropriate roles of parties, experts and judges, in our traditional adversary system of civil justice.
The fact pattern in Fox involved a corporate defendant in the coal mining business, Elk Run, opposing a request for black lung disease benefits by one of its former employees, Fox. Black lung disease, clinically known as “pneumoconiosis,” is a progressive and irreversible pulmonary condition that can afflict those regularly exposed to coal dust.
A federal statute, the Black Lung Benefits Act (BLBA), provides a mechanism for coal workers afflicted with pneumoconiosis to seek benefits from their employers. Under BLBA regulations, an initial finding that a claimant is entitled to benefits triggers an evidentiary hearing before an administrative law judge (ALJ).
Fox had worked as a coal miner for 30 years. In 1997, chest X-rays revealed an unidentified mass in his right lung. In 1998, a pathologist, Dr. Koh, concluded that the mass was an “inflammatory pseudotumor,” but did not diagnose pneumoconiosis. Nevertheless, Fox filed a claim for BLBA benefits, which ultimately led to the scheduling of a BLBA hearing before an ALJ in September 2000.
Prior to the hearing, two non-testifying consulting pathologists retained by Elk Run, Dr. Naeye and Dr. Caffrey, issued reports concluding that Fox was suffering from pneumoconiosis – contrary to the opinion of Dr. Koh.
At the hearing, Elk Run admitted Dr. Koh’s report (as well as several other favorable reports) into evidence. However, Elk Run did not disclose the existence of Dr. Naeye’s or Dr. Caffrey’s reports diagnosing pneumoconiosis to either Fox or the ALJ. Proceeding pro se, Fox offered only his own testimony. Based on the evidence in the record, the ALJ denied Fox’s claim on January 5, 2001, finding that Fox failed to show he had pneumoconiosis.
In 2006, Fox retained counsel and filed a new claim. But this time Fox, through his attorney, conducted vigorous discovery, and Elk Run ultimately turned over Dr. Naeye’s and Dr. Caffrey’s reports. At a 2011 hearing, the ALJ found that Elk Run’s nondisclosure of the unfavorable pathology reports at the 2000 hearing constituted a fraud on the court, set aside the 2001 judgment against Fox, and awarded Fox benefits dating back to January 1997.
On appeal, the Fourth Circuit held that Elk Run’s nondisclosure at the 2000 hearing did not constitute fraud upon the court. As the Court explained, to avoid undermining the principles of finality, the doctrine of fraud upon the court should be “construed very narrowly,” and limited to situations involving judicial corruption (such as bribery of a judge or juror, or improper influence exerted on the court by an attorney). Fox, 2014 WL 26556, at *4.
The facts of the case before it did not meet that high standard. Instead, as the 4th Circuit explained, nondisclosure of unfavorable expert reports in civil litigation is best addressed through the “adversary process” under which “a party relying on weak evidence to sustain its case runs the risk that its experts will crumble upon cross-examination or otherwise be impeached by the opposing party.” Id. at *5. Applying this notion to the case at hand, the 4th Circuit observed:
Fox had the right to cross-examine Dr. Koh regarding his qualifications and conclusions . . . He had the right to cross-examine Elk Run’s other experts to test their understanding of and reliance on Dr. Koh’s report. He had the right to question the apparent lack of additional pathology reports. He had the right to present a contradictory medical opinion from a pathologist of his own choosing. That he did none of those things is not so much an indictment of the adversary system as it is a statement that he did not fully avail himself of it.
Id. at *6.
To hold otherwise, the 4th Circuit noted, would amount to imposing a civil Brady rule, “where parties would be obligated to disclose or at least identify any evidence helpful to their opponent regardless of whether it is privileged.” Id. at *7. The Court found absolutely no precedent to justify such a monumental upheaval to the traditional adversarial process applicable in civil litigation. Indeed, as Elk Run itself pointed out, since neither Dr. Naeye nor Dr. Caffrey were testifying experts, their reports were protected by the work product doctrine, and could not be disclosed without causing the loss of such protection.Please share your thoughts. Do you think Elk Run acted appropriately? Can you think of any circumstances under which it may be appropriate to require a party in civil litigation to disclose unfavorable evidence to its