Michigan Court of Appeals; Docket #356559; Published
Judges Gleicher, Borrello, and Ronayne Krause; Per Curiam
Official Michigan Reporter Citation: Forthcoming; Link to Opinion; Link to Concurrence
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Independent (Insurance) Medical Evaluations
Evidentiary Issues
SUMMARY:
In this unanimous, published, per curiam decision (Gleicher, concurring), the Court of Appeals vacated the trial court’s order denying Plaintiff Kathleen Micheli’s subpoena of Defendant Citizens Insurance Company’s (“Citizens”) insurance medical examiner, in Micheli’s first-party action against Citizens. The Court of Appeals held, first, that Micheli did not need to seek leave of the trial court before serving Citizens’ insurance medical examiner (a nonparty) with a subpoena, seeking to discover information, financial and otherwise, related to the examiner’s performance of insurance medical examinations (IMEs). The Court of Appeals held, second, that such information is not beyond the permissible scope of discovery. The Court of Appeals held, third, that the trial court failed to analyze whether Micheli’s subpoena was “unreasonable and oppressive” under MCR 2.305(A)(4)(a), and therefore remanded to the trial court for consideration of that issue.
Kathleen Micheli was hit by a car insured by Citizens, and thereafter filed a claim with Citizens for no-fault PIP benefits related to her injuries. Citizens retained Mary Kneiser, MD, of Ability Assessments, PC (“Ability Assessments”), to perform an IME of Micheli, after which Micheli’s counsel served a subpoena on Dr. Kneiser and Ability Assessments, seeking various information, including the following: the number of IMEs performed by Dr. Kneiser between 2017 and 2020, the number of regular patient examinations conducted by Dr. Kneiser during that period, and the amount of money Dr. Kneiser earned for the performance of IMEs during that period. Micheli argued that the information sought was relevant to the credibility and potential bias of Dr. Kneiser, but Citizens moved to quash the subpoena, arguing, among other things, that, under MCR 2.302(B)(4), Micheli had to seek leave of the trial court before serving a nonparty subpoena on Ability Assessments and Dr. Kneiser; that the information sought was not relevant to the issues in this case; and that the subpoena was unreasonable and oppressive, pursuant to MCR 2.305(A)(4)(a). The trial court denied Citizens’ motion, ruling that MCR 2.302(B)(4) was inapplicable to Micheli’s subpoena and that Citizens failed to argue “ ‘how compliance with the subpoenas would cause any hardship to [Ability Assessments and Dr. Kneiser].’ ”
The Court of Appeals affirmed the trial court’s determination that MCR 2.302(B)(4) was not applicable to Micheli’s subpoena and held that Micheli was not required to seek leave of the court before serving said subpoena on Ability Assessments and Dr. Kneiser. Ability Assessments and Dr. Kneiser argued, as nonparty appellants, “that MCR 2.302(B)(4) applies to any discovery request made to a nonparty expert regardless of whether the information sought is about the expert or is known to the expert.” The Court of Appeals disagreed, noting, preliminarily, that MCR 2.302(B)(4) only applies to “ ‘[d]iscovery of facts known and opinions held by experts . . . acquired or developed in anticipation of litigation or for trial.’ ” Micheli’s subpoena “did not seek facts or opinions acquired or developed in anticipation of litigation or trial,” but rather “records kept in the ordinary course of business.”
“Therefore, by its plain language, MCR 2.302(B)(4) does not apply here. Plaintiff requested nonparty-appellants to produce records from 2017 through 2020, showing Dr. Kneiser’s earnings for performing medicolegal work and showing the number of patient examinations Dr. Kneiser performed. In other words, plaintiff sought records kept in the ordinary course of business. Plaintiff did not seek facts or opinions acquired or developed in anticipation of litigation or trial. Accordingly, regardless of the trial court’s reasoning, the trial court reached the correct result here: MCR 2.302(B)(4) was inapplicable to plaintiff’s request.”
The Court of Appeals then turned to Ability Assessments and Dr. Kneiser’s argument that the trial court abused its discretion by not finding Micheli’s subpoena to be unreasonable and oppressive. The Court first considered whether the information Micheli was seeking was relevant, finding that it was. Specifically, the Court held that a doctor’s history of serving as a defense medical examiner, and the amount of money he or she has received for doing so, bears on his or her credibility and is therefore relevant.
“Although the records were unrelated to the substantive legal issues in this case, they were related to Dr. Kneiser’s credibility, and information that bears on witness credibility or bias is never irrelevant. Lewis v LeGrow, 258 Mich App 175, 211; 670 NW2d 675 (2003). To show an expert witness is potentially biased, one may show that an expert has a pattern of testifying for a particular category of defendants, see Wilson v Stilwell, 411 Mich 587, 599-600; 309 NW2d 898 (1981), or one may show that an expert has a pecuniary interest in the outcome. US Fire Ins Co v Citizens Ins Co of America, 156 Mich App 588, 592; 402 NW2d 11 (1986). Whether nonparty-appellants have a history of serving as experts for insurance companies, and their compensation for doing so, bears on Dr. Kneiser’s credibility, and it is therefore relevant.”
The Court of Appeals ultimately vacated the trial court’s order, however, holding that the trial court erred when it asserted that Citizens failed to argue “how compliance with the subpoenas would cause any hardship to [them].” The Court of Appeals noted that Citizens did, in fact, argue that compliance with the subpoena would be both time-consuming and expensive, that the subpoena constituted an unfair invasion of Dr. Kneisar’s privacy, and that there were less intrusive means of obtaining the information sought. Thus, the Court of Appeals remanded the case back to the trial court to “explicitly balance these considerations as required by MCR 2.302(B)(1).”
“In fact, Citizens did argue that compliance with the subpoena would be time-consuming and expensive, and doing so would constitute an unfair invasion of Dr. Kneiser’s privacy. Citizens also implicitly argued that to the extent plaintiff sought discoverable information, there were less intrusive means of obtaining that information. See generally Alberto v Toyota Motor Corp, 289 Mich App 328, 336-339; 796 NW2d 490 (2010); Hamed v Wayne Co, 271 Mich App 106, 109-111; 719 NW2d 612 (2006); Fitzpatrick v Sec of State, 176 Mich App 615, 617-618; 440 NW2d 45 (1989). The trial court’s failure to explicitly balance these considerations as required by MCR 2.302(B)(1) hampers our review. See Ronnisch Constr Group, Inc, 499 Mich at 552.
Because the decision whether to quash a subpoena is discretionary, we will not make that decision on behalf of the trial court. However, for remand, we note that Citizens attached to its motion for reconsideration an affidavit from Dr. Kneiser that appears to have provided at least some of the information plaintiff sought. On remand, the trial court shall proceed to balance the value of plaintiff’s proposed discovery, particularly in light of the disclosures already provided in Dr. Kneiser’s affidavit, against the burden of the discovery, including addressing nonparty-appellants’ privacy concerns and the practically available alternative means for plaintiff to discover the information.”
Judge Gleicher concurred with the majority’s holdings, but wrote separately to expand on the majority’s analysis. Additionally, Judge Gleicher chided Citizens for filing an “ ‘emergency’ ” motion to withdraw its appeal—on the ground of mootness—one week before oral argument. Judge Gleicher remarked that this move “strongly suggest[ed] blatant judge-shopping,” considering the following procedural history:
“Citizens vigorously contested the subpoena served on Ability Assessments in the circuit court. Ability Assessments and Dr. Kneiser filed an emergency application to appeal the circuit court’s denial of Citizens’ motion to quash the subpoena. We granted the application on March 25, 2021, and the briefs on appeal were filed by Ability Assessments and plaintiff by July 14, 2021. On December 3, 2021, this Court notified the parties of the names of the panel members assigned to the case. Suddenly, on December 23, 2021, Dr. Kneiser announced her withdrawal as an expert and moved to dismiss the appeal as moot. And Citizens waited until the day before oral arguments to join Dr. Kneiser’s motion.”
Judge Gleicher went on to state the following:
“It is difficult to view this turn of events as anything other than a ploy to avoid review by this Court of Appeals panel. Dr. Kneiser’s one-sentence letter to her counsel offers no reason for her decision to withdraw her services. Apparently, Dr. Kneiser had no interest in doing so until the identities of the three judges hearing this case were revealed. I regard this procedural posturing “with a critical eye,” as directed by Knox. And in my view, there is no explanation for this sudden change of mind other than forum shopping, which defeats mootness.”