Marrogi v. Howard, 00-30786

• Decision Date: 12 April 2001
• Docket Number: No. 00-30786,00-30786
• Citation: 248 F.3d 382
• Parties: (5th Cir. 2001) AIZENHAWAR (AIZEN) J. MARROGI, Plaintiff-Appellant, v. RAY HOWARD and RAY HOWARD & ASSOCIATES, INC., Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 382

248 F.3d 382 (5th Cir. 2001)

AIZENHAWAR (AIZEN) J. MARROGI, Plaintiff-Appellant, v. RAY HOWARD and RAY HOWARD & ASSOCIATES, INC., Defendants-Appellees.

No. 00-30786

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

April 12, 2001

Appeal from the United States District Court For the Eastern District of Louisiana.

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF LOUISIANA, PURSUANT TO RULE XII OF THE LOUISIANA SUPREME COURT TO THE SUPREME COURT OF LOUISIANA AND THE HONORABLE JUSTICES THEREOF:

WIENER, Circuit Judge:

I. STYLE OF THE CASE

The style of the case in which certification is made is Aizenhawar (Aizen) J Marrogi, Plaintiff-Appellant, versus Ray Howard and Ray Howard & Associates, Inc., Defendants-Appellees, in the United States Court of Appeals for the Fifth Circuit, on appeal from the United States District Court for the Eastern District of Louisiana. This case involves a determinative question of state law, and federal jurisdiction is based solely on diversity of citizenship.¹

II. STATEMENT OF THE CASE

A. Prior Litigation

In 1997, Plaintiff-Appellant Aizenhawar (Aizen) J. Marrogi ("Dr. Marrogi") brought suit in Louisiana state court (the "prior litigation") against his former employer, the Tulane University School of Medicine ("Tulane"), seeking monies allegedly owed as a result of Tulane's underbilling for his services. Dr. Marrogi engaged Defendants-Appellees Ray Howard and Ray Howard Associates (collectively, "Howard"), who held themselves out as experts in medical billing and coding, to provide pretrial analysis and litigation support in connection with the prior litigation. Howard, a Florida resident, entered into a contract in which he agreed to perform medical billing and code services with respect to the prior litigation. The services required under that contract included (1) reviewing pathology reports that would be sent to Howard from Louisiana, (2) submitting reports and affidavits to Dr. Marrogi's Louisiana attorney for use in preparing for and prosecuting the prior litigation, (3) testifying in depositions, and (4) testifying in hearings and at trial in Louisiana.

At the outset of the prior litigation, the state court ruled that Dr. Marrogi could obtain medical records of only one fiscal year from the five-year period during which he was employed by Tulane unless he could establish a billing discrepancy. After reviewing Tulane's records together with a billing and coding schedule from 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 the subject fiscal year. Tulane had actually billed less than $250,000.00 for these services.

At the hearing on Dr. Marrogi's motion to compel Tulane to produce the other medical records on the basis of this discrepancy, Tulane pointed to numerous mathematical errors in Howard's reports as well as errors in his assignment of prices to coded services. In light of these errors, the state court ordered that Howard be deposed prior to the court's consideration of Dr. Marrogi's motion to compel.

At the request of Dr. Marrogi, Howard prepared and submitted a revised report which reduced to $392,740.00 the amount that, in Howard's opinion, Tulane should have billed for Dr. Marrogi's services. Dr. Marrogi, in turn, furnished a copy of Howard's revised opinion to Tulane. Under questioning at his ensuing deposition, Howard was forced to admit to having made additional pricing and coding errors. During a break in the deposition, Dr. Marrogi's attorney was informed by Howard that he was chagrined by the numerous errors 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.

Tulane then filed a motion for summary judgment, seeking dismissal of Dr. Marrogi's suit. In support of its motion, Tulane submitted Howard's deposition testimony as evidence that Dr. Marrogi was not able to produce any credible summary judgment evidence of underbilling. The state court granted the motion for summary judgment and dismissed the prior litigation.

B. Current Litigation

Dr. Marrogi then initiated the instant action (the "current litigation") by filing suit against Howard in the Eastern District of Louisiana, alleging injury and damage resulting from Howard's deficient performance in the prior litigation. Howard filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) seeking dismissal of Dr. Marrogi's action for failure to state a claim on which relief could be granted. The gravamen of the motion was Louisiana's witness immunity doctrine.

Noting that no Louisiana court had ever addressed the issue of witness immunity in the context of a party suing his own retained expert witness² over the expert's performance of litigation support services in connection with prior litigation, the district court concluded that under Louisiana law Howard is entitled to absolute immunity like any other witness and accordingly dismissed Dr. Marrogi's action with prejudice. In so doing, the district court announced that it was "unable and unwilling to be the first court to recognize such a modification of Louisiana law."

The district court did, however, observe that Dr. Marrogi's position on the issue of retained expert witness immunity was "fully supported" by LLMD of Michigan, Inc. v. Jackson-Cross Co.,³ in which the Supreme Court of Pennsylvania recognized an exception to the general rule of witness immunity for retained expert witnesses from suit by the party who retained them.⁴ Although the trial court here agreed that "there is a certain logic to the rationale adopted by the LLMD court," it 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." Nevertheless, the district court refrained from engaging in any extended discussion of the merits of the issue, choosing instead to ground its refusal to recognize an exception to the general rule of witness immunity in the fact that "this exception . . . has not been recognized in any other reported opinion by any court applying Louisiana law."

As this appeal turns on an important issue of first impression under Louisiana law, we conclude that the question presented is most properly addressed to the Supreme Court of Louisiana and the Honorable Justices thereof.

III. BACKGROUND⁵

Louisiana courts "have long recognized that there is absolute immunity from civil liability for testimony given by a non-party witness in a judicial proceeding."⁶ Dr. Marrogi does not dispute either that (1) the policy considerations underlying witness immunity, such as the promotion of truthful and unfettered testimony and the discouragement of vexatious litigation, or (2) the contexts in which witness immunity has been extended, are generally sound. Instead, Dr. Marrogi argues that these policy considerations do not mandate the extension of witness immunity to an expert witness sued by the party who had retained the expert for litigation support services and then claims that the retained expert damaged the party in prior litigation by deficiently performing professional duties assumed by that expert. Indeed, Dr. Marrogi contends that the judicial process will only be enhanced by an exception to the general rule of witness immunity that would effectively hold retained expert witnesses accountable for the performance of their duties to the same degree as attorneys, doctors, accountants, and other...