929 N.W.2d 809
Mich. Ct. App.2019Background
- The Estate of Diana Voutsaras sued law-firm defendants and retained experts (the Mogill defendants) after losing underlying foreclosure litigation and after Diana’s death; the Estate alleged professional malpractice by the experts in providing litigation support and expert opinions.
- The Mogill defendants were retained by the Voutsarases’ lawyers to provide litigation support and to serve as expert witnesses at trial (legal ethics and real-estate brokerage expertise).
- The trial court granted summary disposition for the Mogill defendants based solely on witness immunity, treating the experts as absolutely immune for their role in the judicial process.
- On appeal the Court of Appeals considered whether witness immunity bars a client (or a client’s estate) from suing its own retained experts for professional malpractice that concerns negligent performance rather than the substance of testimony.
- The Court of Appeals reversed, holding that witness immunity shields witnesses from suits premised on the substance of testimony or evidence presented to the court, but does not bar malpractice claims based on negligent preparation, investigation, or other professional failures where a duty of professional care exists.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a party may sue its own retained expert for professional malpractice | The Estate: retained experts owed a duty and may be liable for negligence in preparing opinions and providing litigation support | Mogill: witness immunity grants absolute protection for testimony/evidence tied to judicial proceedings, barring malpractice suit | Court: Witness immunity protects the substance of testimony/evidence, but does not bar malpractice claims for negligent professional services where a duty exists; reversed summary disposition |
| Scope of witness immunity — does it extend to negligent formulation of expert opinions prepared for litigation? | Estate: immunity should not shield negligent formulation and investigation because those are professional services to the hiring party | Mogill: immunity should be broadly construed to cover experts retained for litigation | Court: immunity does not extend to negligent performance in formulating opinions (except to the extent suit targets the substance of testimony) |
| Whether Michigan precedent (Maiden) forecloses suits against friendly experts | Estate: Maiden does not address friendly/expert malpractice and should not preclude such suits | Mogill: Maiden establishes broad immunity for witnesses, including party-retained experts | Court: Maiden protects relevant testimony but did not decide malpractice-by-client against party-retained experts; Maiden is not controlling for negligent-performance claims |
| Whether resolution requires remand to determine duty and breach | Estate: factual questions remain about duty and breach by experts | Mogill: immunity disposal prevents need to reach duty/breach | Court: remanded — court did not decide existence of duty or breach; those issues to be determined below |
Key Cases Cited
- Maiden v. Rozwood, 461 Mich 109 (Mich. 1999) (discusses quasi-judicial/witness immunity and privilege for testimony in judicial proceedings)
- Briscoe v. LaHue, 460 U.S. 325 (U.S. 1983) (federal recognition of witness immunity to protect candid testimony and truth-finding)
- Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392 (Cal. Ct. App. 1992) (litigation privilege did not bar malpractice suit by party against its retained expert who provided litigation support)
- LLMD of Mich., Inc. v. Jackson-Cross Co., 559 Pa. 297 (Pa. 1999) (witness immunity did not bar malpractice claim alleging negligent formulation of expert opinion)
- Denhof v. Challa, 311 Mich App 499 (Mich. Ct. App. 2015) (explains that immunity extends to materials prepared for court but distinguishes immunity scope)