By Laura DePonio
In a case of first impression, the Michigan Court of Appeals recently ruled that expert witnesses in professional malpractice actions may themselves be sued for malpractice if their testimony is not competent. The court ruled that witness immunity does not apply to bar all claims against expert witnesses.
Voutsaras v. Mogill, issued January 3, 2019 (Docket No 340714), reversed a grant of summary judgment by the Ingham Circuit Court regarding experts and the applicability of the witness immunity doctrine. The Court of Appeals narrowed the application of the doctrine, finding that in some cases experts do not retain complete immunity, regardless of which party they were retained by and whether they testify at trial.
Diana and Spiro Voutsaras hired a law firm to represent them in foreclosure proceedings regarding a mortgage and note made by the Voutsaras family. As part of the litigation, the law firm hired an attorney (the “Expert”) and his firm to provide both litigation support and serve as legal experts at trial. Ultimately, the Voutsarases lost their case on summary disposition, after the law firm they had retained in the matter notified them that the litigation strategy would fail and that the Voutsarases would lose at trial.
Diana Voutsaras passed away shortly thereafter and her estate sued the law firm retained in the underlying litigation and the Expert for malpractice, claiming: (1) that the defendant law firm failed to advise them of a favorable settlement offer; (2) the law firm lied to the Voutsarases and pursued frivolous claims on behalf of the estate in order to drive up legal costs; and (3) that the Expert breached his duty to the estate by failing to investigate the facts in the underlying litigation needed to form their opinions.
At issue in this case was the third claim regarding the Expert’s alleged malpractice. The trial court, relying solely on the witness immunity doctrine, ruled against the Estate on its malpractice claims against the Expert. The court found that the Expert was protected under the witness immunity doctrine and therefore could not be sued for tort claims related to the case, including professional malpractice.
The Court of Appeals reversed the trial court’s broad reading of the witness immunity doctrine, finding that the Expert could be liable for professional malpractice, depending upon the trial court’s finding of facts on the matter. In it reasoning, the court relied on the Michigan Supreme Court’s holding in Maiden v. Rozwood, 461 Mich. 109 (1999), which found that in general, a witness owes its duty “to the court, not the adverse party” and thus a breach of that duty does not impose a liability for malpractice or other tort actions. In particular, the Court of Appeals cited to the Supreme Court’s policy goal in its decision – that testifying witnesses must have the freedom to give damaging testimony without fear of a malpractice claim or other torts by the damaged party.
However, the Court of Appeals limited the grant of immunity, finding that the immunity does not extend to “professionally incompetent testimony” regardless of its favorability to the party. Furthermore, an expert party that provided testimony at trial may still be liable for malpractice for expert opinions provided to the plaintiff outside of the in-court testimony.
The Court declined to make a specific ruling on whether the Expert’s services supported a claim for malpractice in this case and remanded it back to the trial court. However, it indicated that such an analysis of testimony and materials provided for the client versus the court would be a fact specific determination:
“To the extent plaintiff’s claims rest on the [Expert] defendants having provided damaging testimony or evidence intended for consideration by the trial court, the [Expert] defendants are clearly protected by the doctrine of witness immunity…… We only hold that the [Expert] defendants are not absolutely immunized from professional malpractice claims where they already owed a duty of professional care, merely because part of their retention included the provision of expert testimony.”
Although the opinion is narrow and does not establish what would constitute malpractice by an expert witness; it sends a clear signal to experts – testimony at trial does not beget automatic immunity from malpractice claims.