Marrogi v. Howard

Aizenhawar Marrogi (plaintiff) sued Tulane University School of Medicine (Tulane) for payment of services Marrogi had performed that Tulane had not billed or had underbilled. Marrogi retained Ray Howard and his firm (defendants) to provide pretrial analysis and litigation-support services. Howard, a professed expert in medical billing and coding, was to review records, provide affidavits, and testify. Tulane pointed out mathematical errors in the calculations contained in an affidavit provided by Howard. Howard’s revised opinion reduced the amount Tulane owed Marrogi. Howard admitted additional errors when he was deposed and then refused to continue to be deposed and to provide any further services to Marrogi. The court dismissed Marrogi’s suit against Tulane. Marrogi sued Howard in federal court for negligence and breach of contract. Howard claimed he was immune from suit because Marrogi’s claims arose out of Howard’s testimony as a witness in a court proceeding. Marrogi argued that the witness-immunity rule did not bar a party from suing a retained expert witness for professional malpractice. The court concluded that Howard had absolute immunity and dismissed the complaint. On appeal, the Fifth Circuit certified to the Louisiana Supreme Court the question of whether witness immunity barred a claim against a retained expert witness for the expert’s allegedly deficient performance of his duties to provide litigation services and give opinion testimony before or during trial.