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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,
1 Marrogi v. Howard, 248 F.3d 382 (5th Cir. 2001)("Marrogi I").
2 Marrogi v. Howard, 794 So. 2d 778 (La. 2001).

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
3 2002 WL 47842 (La. 2002).
4 Marrogi I, 248 F.3d at 386.
2

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
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

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