## Facts

- Aizenhawar J. Marrogi, M.D., sued his former employer, Tulane, seeking unpaid or underbilled professional fees for medical services.
- Marrogi retained Ray Howard and Ray Howard & Associates, Inc., a consulting firm that represented itself as an expert in medical billing and coding, to provide pretrial analysis, reports/affidavits, and opinion testimony.
- Under the engagement, Howard agreed to review pathology reports, submit analyses to Marrogi’s counsel, and testify in depositions and at hearings/trial; Marrogi paid a retainer and additional fees.
- Because the state trial court limited discovery to one fiscal year unless discrepancies were shown, Howard reviewed records for that year and supplied an affidavit estimating a significant underbilling amount.
- Tulane identified mathematical errors in Howard’s calculations; Howard revised his opinion downward.
- During deposition, Howard admitted additional errors and then refused to continue his deposition or provide further services.
- The state court dismissed Marrogi’s suit against Tulane.
- Marrogi filed a federal action against Howard asserting negligence and breach of contract (and unjust enrichment in the alternative) based on Howard’s allegedly deficient expert services.
- The federal district court dismissed, concluding Howard was absolutely immune as a witness; the Fifth Circuit certified to the Louisiana Supreme Court whether witness immunity barred Marrogi’s claims.

## Issues

1. Under Louisiana law, does witness immunity bar a retaining party’s civil claim against its own retained expert witness for allegedly deficient litigation services, including opinion formulation and testimony?

## Decision

- The Louisiana Supreme Court answered the certified question in the negative.
- Witness immunity does not bar a malpractice or breach-of-contract claim by the party that retained the expert, where the claim arises from the expert’s allegedly negligent performance of professional and contractual duties in providing litigation services (including work connected to testimony).
- Traditional witness immunity remains available against claims by opposing parties or other third parties based on testimony.

## Legal Principles

- Witnesses generally enjoy absolute immunity from civil liability for damages arising from testimony in judicial proceedings, even if the testimony is false or malicious, subject to criminal sanctions for perjury.
- The principal purpose of witness immunity is to protect the judicial process by preventing retaliatory suits by disappointed litigants or third parties and encouraging candid testimony.
- A privately retained expert typically undertakes professional services pursuant to an express or implied contract with the retaining party and owes corresponding duties of competent performance.
- Witness immunity does not extend to shield a retained expert from liability to the retaining party for negligent performance of contracted professional services, even when those services are intertwined with anticipated or actual testimony.
- Recognizing retaining-party malpractice and contract claims does not defeat the policies of immunity because the claim targets deficient professional performance within a paid engagement, not harassment by adverse litigants over the substance of testimony.

## Conclusion

Louisiana law preserves absolute witness immunity against suits by adverse parties based on testimony, but it does not immunize a retained expert from malpractice or contract liability to the client who hired the expert for allegedly incompetent litigation-support services and related opinion testimony.


Marrogi v. Howard, 805 So. 2d 1118 (La. 2002)