Attorneys who are retained to provide expert witness testimony are not automatically shielded by the witness immunity doctrine and can be sued for professional malpractice, the Michigan Court of Appeals has ruled for the first time.

The witness immunity doctrine prevents witnesses from being held civilly liable for the consequences of their testimony in a court proceeding. The doctrine not only includes witness testimony, but also things said or done in preparation for court proceedings. The doctrine has an underlying public policy purpose: encourage persons to provide evidence or testimony without fear of having to defend lawsuits related to the information they provided.

In Estate of Voutsaras v Bender, et al. (Docket No. 340714), the trial court held that a party’s own expert witnesses are shielded by witness immunity and cannot be sued for professional malpractice, regardless of any duty they owe the client.

The Court of Appeals disagreed, finding the trial court extended the witness immunity doctrine too far. According to the Court of Appeals, licensed professionals, including lawyers, owe the same duty to the party for whom they testify as they would to any other client.

“We conclude that the trial court erred by construing the doctrine of witness immunity too broadly,” Judge Amy Ronayne Kraus wrote in a published decision. “A professional’s client is not precluded from maintaining a professional malpractice action by witness immunity, except to the extent the action is premised on the substance of evidence or testimony prepared for the benefit of the court.”

Judges Brock A. Swartzle and David H. Sawyer joined the opinion.

Foreclosure Proceedings

The case involved the foreclosure of a commercial mortgage and note entered into by Mr. and Mrs. Voutsaras and held by Gallagher Investments. Mr. and Mrs. Voutsaras hired the law firm of Murphy & Spagnuolo, PC, to represent them in the foreclosure proceedings. At the advice of counsel, Mr. and Mrs. Voutsaras filed a counterclaim against Gallagher Investments for malpractice, as well as various third-party claims.

In turn, Murphy & Spagnuolo, PC, hired defendants Kenneth M. Mogill, the law firm of Mogill Posner & Cohen, Kern G. Slucter and Gannon Group PC (“the Mogill defendants”) to provide litigation support and expert testimony at trial in the foreclosure action. The trial strategy was unsuccessful, however, and summary disposition was entered against Mr. and Mrs. Voutsaras.

Mrs. Voutsaras died a short time later and her estate filed this legal malpractice claim against Murphy & Spagnuolo, PC, and the Mogill defendants.

Regarding Murphy & Spagnuolo, the Estate asserted the firm failed to advise it of a favorable settlement offer and deliberately concealed the fact that the Estate’s claims were frivolous, in order to drive up legal costs. A settlement agreement was reached in October 2017 between the personal representative of the Estate and the defendants Gary Bender, Richard Cascarilla, Lindsay Dangle, Vincent Spagnuolo and Murphy & Spagnuolo, PC.

As for the Mogill defendants, the Estate claimed they breached their duty by failing to: 1) properly investigate the facts required to formulate their opinions, 2) understand the applicable standards and 3) provide a competent professional opinion.

The trial court granted summary disposition to the Mogill defendants, noting that the issue presented – the ability of a party to sue his or her own expert witnesses – had never been decided by a Michigan court. According to the trial court, the Mogill defendants were shielded from any liability by the witness immunity doctrine.

The Estate appealed, arguing the Mogill defendants owed it a legal duty and breached that duty. The Mogill defendants countered that Maiden v Rozwood, 461 Mich 109 (1999), stood for the proposition that all witnesses enjoy total immunity for any relevant testimony provided during judicial proceedings.

Witness Immunity Is No Defense

The Court of Appeals reversed the trial court, finding that “licensed professionals owe the same duty to the party for whom they testify as they would to any client, and witness immunity is not a defense against professional malpractice.”

In reaching this conclusion, the Court of Appeals examined decisions from both federal and state appellate courts across the country. Relying on these rulings, the Court of Appeals held that attorneys who are retained to provide expert witness services cannot be “absolutely” immune from legal malpractice claims when they already owe a duty of professional care, just because part of their retention included providing expert testimony.

The Court of Appeals also made it clear that its decision was limited. “[T]o the extent plaintiff may assert that the Mogill defendants gave testimony that was unfavorable to plaintiff, such assertions unambiguously run afoul of the witness immunity doctrine in Michigan. However, whether witness immunity protects the Mogill defendants from giving professionally incompetent testimony, which might or might not be favorable, was clearly not a matter considered” in the other federal and state cases reviewed by the Court of Appeals.

Here, the complaint “appears to allege that the Mogill defendants provided expert opinions for the benefit of plaintiff or plaintiff’s attorneys, in addition to intended expert testimony for the court,” the Court of Appeals said. “Furthermore, plaintiff alleges that the Mogill defendants not only provided incompetent opinions, but failed to undertake reasonable skill and care in forming those opinions. As discussed, we have already established that the Mogill defendants owed plaintiff a duty of professional care; plaintiff essentially alleges a perfectly ordinary claim of legal malpractice, asserting that the Mogill defendants breached that duty of professional care.”

Therefore, “[t]o the extent plaintiff’s claims rest on the Mogill defendants having provided damaging testimony or evidence intended for consideration by the trial court, the Mogill defendants are clearly protected by the doctrine of witness immunity,” the Court of Appeals wrote.

“However,” the Court of Appeals continued, “we find nothing in Maiden, or any other Michigan case law, suggesting that any other claim of professional malpractice by a client is precluded merely because the professional was expected to provide expert testimony. We decline to parse which particular claims in this matter are immunized. We hold only that the Mogill 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.”

According to the Court of Appeals, nothing existed in Michigan law suggesting that witness immunity precludes a claim by a client against a retained professional for the negligent performance of professional services. “We are persuaded by the reasoning in the … cases [we reviewed] that witness immunity should not be further extended. Where a duty of professional care exists such that a malpractice action may be maintained, witness immunity is not a defense to a malpractice action except, as noted, insofar as the action is premised on the substance of the professional’s evidence or testimony intended to be provided to the court.”

In conclusion, the Court of Appeals found the trial court construed the witness immunity doctrine too broadly. “We reverse the trial court’s grant of summary disposition … and we remand for further proceedings.”