Marrogi v. Howard, No. 2001-CQ-1106.

CourtSupreme Court of Louisiana
Writing for the CourtCALOGERO, Chief Justice.
Citation805 So.2d 1118
PartiesAizenhawar (Aizen) J. MARROGI v. Ray HOWARD and Ray Howard & Associates, Inc.
Docket NumberNo. 2001-CQ-1106.
Decision Date15 January 2002

805 So.2d 1118

Aizenhawar (Aizen) J. MARROGI
v.
Ray HOWARD and Ray Howard & Associates, Inc

No. 2001-CQ-1106.

Supreme Court of Louisiana.

January 15, 2002.


805 So.2d 1119
Jeffery C. Vaughan, Lead Counsel, William C. Beary, Peter J. Butler, Peter J. Butler, Jr., New Orleans, Counsel for Appellant

Anthony P. Dunbar, New Orleans, Kenneth B. Wright, Counsel for Appellee.

805 So.2d 1120
CALOGERO, Chief Justice.1

We accepted the certified question presented to this court by the United States Fifth Circuit Court of Appeals in Marrogi v. Howard, 248 F.3d 382, 386 (5th Cir. 2001).2 The question is this: "Under Louisiana law, does witness immunity bar a claim against a retained expert witness, asserted by a party who in prior litigation retained that expert, which claim arises from the expert's allegedly deficient performance of his duties to provide litigation services, such as the formulation of opinions and recommendations, and to give opinion testimony before or during trial?" For the reasons that follow, we answer that question in the negative.

FACTS and PROCEDURAL HISTORY

In 1997, Aizenhawar (Aizen) J. Marrogi, M.D., brought suit in a Louisiana state court against the Tulane Educational Fund d/b/a the Tulane University School of Medicine ("Tulane"), seeking to recover fees for professional medical services that Dr. Marrogi performed while employed by Tulane but for which Tulane allegedly failed to bill or underbilled.3 After filing suit, Dr. Marrogi retained the services of Ray Howard and his consulting firm, Ray Howard & Associates, Inc. (collectively referred to as "Howard"), to provide pretrial analysis and litigation support services. Howard, a Florida resident, held himself out as an expert in medical billing and coding. The agreement between Dr. Marrogi and Howard specifically called for Howard (1) to review pathology reports that would be sent to him from Louisiana, (2) to submit reports and affidavits to Dr. Marrogi's Louisiana attorney for use in preparing for and prosecuting the claim against Tulane, (3) to testify in depositions, and (4) to testify in hearings and at trial in Louisiana. Howard was paid a retainer of $1,200.00 and additional remittances totaling roughly $7,000 to $10,000.

In the course of the Marrogi/Tulane litigation, the Civil District Court for the Parish of Orleans ruled that Dr. Marrogi would be permitted only limited discovery of Tulane's medical records, i.e., records for one fiscal year out of the five years in question, unless he could establish a billing discrepancy or discrepancies in that one year. After reviewing the pathology reports, together with a billing and coding schedule for the one fiscal year, Howard provided Dr. Marrogi with an affidavit containing Howard's opinion that Tulane should have billed $523,485.00 for Dr. Marrogi's services during that fiscal year. In fact, Tulane had billed less than $250,000 for those services, an alleged difference of some $273,485. Relying on the billing discrepancies identified by Howard in his affidavit, Dr. Marrogi filed a motion to compel Tulane to produce the other four years of its medical records. At the hearing on the motion to compel, Tulane pointed to numerous mathematical errors in Howard's affidavit, as well as errors in his assignment of prices to coded services. In light of these errors, the court ordered that Howard submit to a deposition prior to the

805 So.2d 1121
court's considering the merits of the motion to compel

At the request of Dr. Marrogi, Howard thereupon prepared and submitted a revised opinion that reduced to $392,740.00, rather than the earlier $523,485, the amount that Tulane should have billed for Dr. Marrogi's services during the one fiscal year under review. Dr. Marrogi furnished a copy of this revised opinion to Tulane. Then, under questioning at the deposition, Howard was forced to admit to having made additional pricing and coding errors in his revised opinion. During a break in the deposition, Howard informed Dr. Marrogi's attorney that he was disgusted by the numerous errors that he had made and that he would neither participate in the remainder of his scheduled deposition nor provide any of the other litigation support that he had contracted to furnish.

Thereafter, Tulane filed a motion for summary judgment, seeking dismissal of Dr. Marrogi's suit. In support of the motion, Tulane submitted Howard's deposition testimony to demonstrate that Dr. Marrogi was unable to produce any credible evidence of underbilling. The Civil District Court, Parish of Orleans, granted the motion and dismissed the suit.4

After dismissal of this state court litigation, Dr. Marrogi filed a lawsuit against Howard in the United States District Court for the Eastern District of Louisiana, alleging two causes of action: negligence and beach of contract, or in the alternative, unjust enrichment. With regard to the negligence claim, Dr. Marrogi asserted that Howard had held himself out as an expert in medical billing and coding, that Howard made numerous mathematical and coding errors in analyzing the pathology reports, that the inaccurate analysis resulted in the dismissal of Dr. Marrogi's claims against Tulane, that Howard's actions breached the professional duties owed to Dr. Marrogi, and that Howard is liable to Dr. Marrogi for all losses incurred as a result thereof. With respect to the contract claim, Dr. Marrogi asserted that Howard's inaccurate analysis and his failure to continue performance under the contract constituted breaches of the agreement, that Howard had either billed or overbilled for the deficient services Howard had performed under the agreement, and that Dr. Marrogi was entitled to the sums paid to Howard under the agreement, either as contract damages, or for unjust enrichment.

Howard subsequently filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that, under Louisiana's witness immunity doctrine, Dr. Marrogi's action failed to state a claim upon which relief could be granted.5 Howard asserted he was absolutely immune from suit because the claims were the result of his actions as a witness in a court proceeding. In opposition to Howard's motion, Dr. Marrogi argued that the witness immunity doctrine does not preclude a claim for professional malpractice against an expert witness by the party who had retained the expert witness.

Before granting the 12(b)(6) motion, the United States district court judge noted that no court applying Louisiana law has ever addressed the issue of witness immunity in the context of a party suing his own

805 So.2d 1122
retained expert witness over the expert's performance of litigation support services. While the federal district court judge observed that Dr. Marrogi's position on the issue of retained expert witness immunity was "fully supported" by a Pennsylvania Supreme Court case, LLMD of Michigan, Inc. v. Jackson-Cross Co., 559 Pa. 297, 740 A.2d 186 (1999), she nonetheless stated that she was "unable and unwilling to be the first court to recognize such a modification of Louisiana law." The judge acknowledged "a certain logic to the rationale adopted by the LLMD court," but she also expressed concern that making an exception to the general rule of witness immunity for retained expert witnesses might entail "a multitude of evidentiary and practical problems in its application." The federal judge concluded that, under Louisiana law, Howard is entitled to absolute immunity like any other witness. Accordingly, the judge dismissed Dr. Marrogi's action with prejudice

On appeal, the United States Fifth Circuit Court of Appeals found that the case turned on an important issue of first impression under Louisiana law, noting that no Louisiana court (or any other court applying Louisiana law) has addressed, much less decided, whether the general principle of witness immunity admits of an exception for the retained expert witness who is alleged to have performed litigation support duties deficiently, to the detriment of the party who retained that expert. The Fifth Circuit concluded this court should more properly address that issue, hence the certified question.

DISCUSSION

We initially dispose of defendant Howard's assertion that this court should not issue what in effect would be either an improper advisory opinion or an opinion contingent upon uncertain events. Under the circumstances of this case, we do not agree that our answer to the question certified to us will be either simply advisory or contingent.

Defendant Howard's "advisory" opinion argument is premised upon the federal district court's finding the existence in that court of personal jurisdiction. He contends the federal district court found personal jurisdiction only because Dr. Marrogi's petition and argument in that court were directed toward the presentation and effect of Howard's affidavit and deposition testimony upon the prior litigation in the Orleans Parish civil district court. As support for this contention, Howard points out that the federal district court, in a footnote, indicated that it would not have had personal jurisdiction over a claim of negligent preparation alone because that activity had occurred wholly in Florida.6 Howard maintains that Dr. Marrogi on appeal to the Fifth Circuit retrenched from his original focus in the federal district court, i.e., on the presentation and effect of Howard's affidavit and deposition testimony upon the Louisiana litigation, and instead couched his argument, as he does now in this court, in terms of Howard's negligent preparation and formulation of his opinion, acts that allegedly occurred wholly in Florida. Asserting that the federal district court does

805 So.2d 1123
not have personal jurisdiction if the focus is on the formulation of his opinion, acts that transpired in Florida, Howard argues that this court's present opinion will, therefore, necessarily be contingent upon a change in the federal district...

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33 practice notes
  • Lambert v. Carneghi, No. A113388.
    • United States
    • California Court of Appeals
    • January 11, 2008
    ...Levine v. Wiss & Co. (1984) 97 N.J. 242, 478 A.2d 397 [court-appointed accountants not immune from suit]; Marrogi v. Howard (La.2002) 805 So.2d 1118 [expert who provided pretrial analysis and litigation support services not immune from suit merely because he or she provides testimony]; Jame......
  • Wynn v. Earin, No. 78247-4.
    • United States
    • United States State Supreme Court of Washington
    • April 3, 2008
    ...Commonwealth Attorney's Office v. Kaplan, 65 S.W.3d 916, 921 (Ky.2001); Stone v. Glass, 35 S.W.3d 827 (Ky.App.2000); Marrogi v. Howard, 805 So.2d 1118, 1124-27 (La.2002); Reichardt v. Flynn, 374 Md. 361, 366-72, 823 A.2d 566 (2003); Sriberg v. Raymond, 370 Mass. 105, 108, 345 N.E.2d 882 (19......
  • Davis ex rel. Davis v. Wallace, No. 29966.
    • United States
    • Supreme Court of West Virginia
    • April 26, 2002
    ...in relation to 565 S.E.2d 391 the judicial proceeding and that professional testifies by affidavit or deposition. Marrogi v. Howard, 805 So.2d 1118, 1133 (La.2002) (holding that witness immunity does not bar a claim against a retained expert witness for negligence performance of his Many co......
  • Wilson v. Bernet, No. 32578.
    • United States
    • Supreme Court of West Virginia
    • November 18, 2005
    ...ends." Mattco Forge, Inc. v. Arthur Young & Co., 6 Cal. Rptr.2d 781, 789, 5 Cal.App.4th 392, 405 (1992). Accord Marrogi v. Howard, 805 So.2d 1118, 1126 (La.2002) ("[A]n adverse expert witness [is] . . . immune from a Page 712 suit filed by the losing party in the earlier litigation[.]"). Se......
  • Request a trial to view additional results
33 cases
  • Lambert v. Carneghi, No. A113388.
    • United States
    • California Court of Appeals
    • January 11, 2008
    ...Levine v. Wiss & Co. (1984) 97 N.J. 242, 478 A.2d 397 [court-appointed accountants not immune from suit]; Marrogi v. Howard (La.2002) 805 So.2d 1118 [expert who provided pretrial analysis and litigation support services not immune from suit merely because he or she provides testimony]; Jame......
  • Wynn v. Earin, No. 78247-4.
    • United States
    • United States State Supreme Court of Washington
    • April 3, 2008
    ...Commonwealth Attorney's Office v. Kaplan, 65 S.W.3d 916, 921 (Ky.2001); Stone v. Glass, 35 S.W.3d 827 (Ky.App.2000); Marrogi v. Howard, 805 So.2d 1118, 1124-27 (La.2002); Reichardt v. Flynn, 374 Md. 361, 366-72, 823 A.2d 566 (2003); Sriberg v. Raymond, 370 Mass. 105, 108, 345 N.E.2d 882 (19......
  • Davis ex rel. Davis v. Wallace, No. 29966.
    • United States
    • Supreme Court of West Virginia
    • April 26, 2002
    ...in relation to 565 S.E.2d 391 the judicial proceeding and that professional testifies by affidavit or deposition. Marrogi v. Howard, 805 So.2d 1118, 1133 (La.2002) (holding that witness immunity does not bar a claim against a retained expert witness for negligence performance of his Many co......
  • Wilson v. Bernet, No. 32578.
    • United States
    • Supreme Court of West Virginia
    • November 18, 2005
    ...ends." Mattco Forge, Inc. v. Arthur Young & Co., 6 Cal. Rptr.2d 781, 789, 5 Cal.App.4th 392, 405 (1992). Accord Marrogi v. Howard, 805 So.2d 1118, 1126 (La.2002) ("[A]n adverse expert witness [is] . . . immune from a Page 712 suit filed by the losing party in the earlier litigation[.]"). Se......
  • Request a trial to view additional results

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