In January 2019, the Michigan Court of Appeals issued Estate of Voutsaras v Bender, a published opinion recognizing a new limit on the witness-immunity doctrine. As explained in our earlier blog post, the Court held, as a matter of first impression, that licensed professionals retained as expert witnesses or consultants aren’t absolutely immune from malpractice claims simply because part of their professional services included providing expert testimony. Under Voutsaras, professionals can’t face liability for merely unfavorable testimony, but they may face liability for professionally incompetent testimony.
After the Court of Appeals issued its decision, the losing attorney-experts sought leave to appeal before the Michigan Supreme Court. The Supreme Court granted oral argument on their applications and requested supplemental briefing. The case was the first to be heard remotely via Zoom in April 2020.
Recently, the Supreme Court issued an order denying the applications for leave, explaining that there was “no majority in favor of granting leave to appeal or taking other action.” Justice Markman authored a strongly worded dissent, joined by Chief Justice McCormack and Justice Zahra. In their view, the Court of Appeals’ decision cut against well-established Michigan law granting immunity for all witnesses—including experts—and the public-policy considerations supporting broad witness immunity. The dissenting justices also believed that such a significant alteration of Michigan immunity jurisprudence should be evaluated and directed by the Supreme Court, not the Court of Appeals. Thus, they would have granted leave to appeal.
Now, the Court of Appeals’ decision remains binding precedent. But this could change if the Supreme Court has another opportunity to consider the issue. In this instance, only six justices participated, facilitating a 50/50 split in opinion. So, a different outcome could result in the future.