1 Marrogi v. Howard, 248 F.3d 382 (5th Cir. 2001)(“Marrogi I”).

2 Marrogi v. Howard, 794 So. 2d 778 (La. 2001). 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 00-30786 

__________________________

AIZENHAWAR (AIZEN) J. MARROGI,

Plaintiff-Appellant,

versus

RAY HOWARD and 

RAY HOWARD & ASSOCIATES, INC.,

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court

For the Eastern District of Louisiana

___________________________________________________

February 14, 2002

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

WIENER, Circuit Judge:

We first heard this appeal in 2001, with federal jurisdiction

based on diversity of citizenship. As the case involved a

determinative but unanswered question of Louisiana law, we filed an

opinion on April 12, 2001, certifying that question to the Supreme

Court of Louisiana.1 The court graciously accepted our

certification,2 and in a unanimous opinion rendered on January 15,
3 2002 WL 47842 (La. 2002).

4 Marrogi I, 248 F.3d at 386.

2

2002,3 answered the question we had posed by certification: “Under

Louisiana law, does witness immunity bar a claim against a retained

expert witness, asserted by a party who in prior litigation

retained that expert, which claim arises from the expert’s

allegedly deficient performance of his duties to provide litigation

services, such as the formulation of opinions and recommendations,

and to give opinion testimony before or during trial?”4 Answering

our certified question in the negative, the Supreme Court of

Louisiana held that such a claim is not barred by the doctrine of

witness immunity.

The operable facts and procedural history of this case are set

forth in detail in Marrogi I. For purposes of this opinion, it

suffices that Dr. Marrogi brought suit in a Louisiana state court

against his former employer, the Tulane University School of

Medicine, seeking a money judgment for alleged underbilling of his

services by Tulane. Dr. Marrogi retained Howard as an expert to

provide specified litigation support services. Following several

purported miscues on the part of Howard, which culminated in

Howard’s refusal to complete his participation in a deposition and

to provide any of the other litigation support that he had

contracted to furnish, Tulane filed a motion for summary judgment

seeking dismissal of Dr. Marrogi’s action, and the state trial
5 Howard also sought dismissal for lack of personal jurisdiction

and venue, and alternatively sought transfer to the Middle District

of Florida. The district court held that it had jurisdiction (a

ruling we affirmed sub silentio in certifying to the Supreme Court

of Louisiana that its answer to the witness immunity question would

determine the outcome of this case). The district court did not,

however, rule on the transfer issue because it dismissed the action

with prejudice under Rule 12(b)(6).

3

court granted Tulane’s motion. 

This prompted Dr. Marrogi to file suit against Howard in

federal court, claiming damages caused by his deficient performance

in the state litigation. Dr. Marrogi asserted that Tulane had

based its successful motion to dismiss on the doctor’s inability to

produce any credible summary judgment evidence of underbilling.

And, according to Dr. Marrogi, that inability was the direct result

of Howard’s deficient performance of the litigation support

obligations that he had contracted to provide.

Howard filed a Federal Rule of Civil Procedure 12(b)(6) motion

to dismiss Dr. Marrogi’s action for failure to state a claim on

which relief could be granted. Howard’s motion was granted by the

district court, which concluded that Louisiana had never expressly

recognized an exception to its general rule of witness immunity to

allow claims to be asserted against witnesses who, like Howard,

were retained as experts to provide litigation services such as

those at issue here.5 In granting Howard’s dismissal motion, the

district court declined to make an “Erie guess” that Louisiana’s

highest court would recognize such an exception.

We represented to the Supreme Court of Louisiana that “[i]f an
6 Marrogi I, 248 F.3d at 386.

4

exception to witness immunity is recognized for retained expert

witnesses, [this] case will be remanded to the federal district

court for further proceedings consistent with that ruling.”6 As

the Supreme Court of Louisiana recognized such an exception, we

reverse the district court’s dismissal of Dr. Marrogi’s action and

remand for further consistent proceedings.

REVERSED and REMANDED.