In a previous post we discussed the Michigan Court of Appeals decision allowing a cause of action to proceed against an expert witness alleging professional malpractice. In Estate of Voutsaras v. Bender, 326 Mich. App. 667 the Michigan Court of Appeals held that the doctrine of witness immunity did not shield a lawyer, serving as an expert witness, from a claim for professional malpractice.
The defendant-expert filed an application for leave to appeal that decision to the Michigan Supreme Court. The Supreme Court held an oral argument on that application. However, because there was “no majority in favor of granting leave to appeal or taking other action” the application was denied. This means that the Court of Appeals’ published decision is good and binding law on Michigan trial courts.
Practically, we advise any professional (doctor, lawyer, accountant, engineer, etc.) who is engaged in providing expert witness testimony to review their malpractice insurance policy or contact their malpractice insurance carrier to make certain that their services as an expert witness are covered under that policy. Professionals who serve as expert witnesses may also wish to revise their engagement agreement to include forum selection or arbitration clauses for malpractice actions.
Expert witness liability is now a fact of life in Michigan.