C Kathleen Micheli v. Michigan Automobile Ins Placement Facility
356559
| Mich. Ct. App. | Feb 10, 2022Background
- Plaintiff served a third-party subpoena on nonparty expert Dr. Mary Kneiser (and her company Ability Assessments) seeking: (a) the percentage of her time spent doing independent medical examinations (IMEs) over the prior four years, and (b) financial records reflecting earnings for IMEs over that period.
- Citizens Insurance (defendant) and Ability Assessments moved to quash; the circuit court denied the motion and refused to quash the subpoena.
- Ability Assessments and Dr. Kneiser sought interlocutory review; this Court granted the application. Shortly before oral argument Dr. Kneiser withdrew as an expert and Ability Assessments/Citizens argued the appeal was moot.
- The concurrence (Gleicher, C.J.) agreed the subpoena was properly allowed, rejected mootness (invoking voluntary cessation/judge-shopping concerns), and analyzed applicable court rules and protective-order principles.
- Court concluded the sought information was relevant to expert bias/credibility and discoverable; remand limited to permitting Citizens to seek a protective order addressing burden/oppressiveness.
Issues
| Issue | Plaintiff's Argument (Micheli) | Defendant's Argument (Citizens / Ability Assessments) | Held |
|---|---|---|---|
| Mootness after expert withdrawal | Not moot; issue is publicly significant, capable of repetition, and voluntary cessation exception applies | Withdrawal moots the appeal | Not moot — public interest and voluntary-cessation/judge-shopping concerns; appeal proceeds |
| Whether a nonparty subpoena on a designated expert is permissible without court leave under MCR 2.302(B)(4) | Permissible: the subpoena seeks information not "acquired or developed in anticipation of litigation" and MCR 2.305 provides an alternative route | MCR 2.302(B)(4) (expert-discovery rule) precludes using a nonparty subpoena; court leave required | Rules harmonized: subpoena path is permissible here; MCR 2.302(B)(4) does not bar this discovery and court may order further discovery under the rule |
| Discoverability of expert financial records (bias evidence) | Financials and time-allocation are relevant to bias/credibility and discoverable; proportionality applies | Financials are private/confidential and beyond permissible scope | Financial information is relevant to bias and within discovery scope subject to proportionality and protective-order safeguards |
| Whether the subpoena was oppressive/burdensome | No adequate evidence showing undue burden; Citizens has opportunity to seek protective order | Subpoena is unduly burdensome, oppressive, and harassing | Circuit court did not abuse discretion in finding discovery proportional; remand allows Citizens to file a protective-order motion to address burden |
Key Cases Cited
- Knox v Serv Employees Int'l Union, 567 U.S. 298 (2012) (voluntary cessation and skepticism of late maneuvers to evade review)
- Friends of the Earth v Laidlaw Environmental Servs, 528 U.S. 167 (2000) (party asserting mootness bears heavy burden)
- United States v Concentrated Phosphate Export Ass'n, 393 U.S. 199 (1968) (mootness exception when wrongful conduct cannot reasonably be expected to recur)
- Daubert v Merrell Dow Pharm, 509 U.S. 579 (1993) (expert evidence can be powerful/misleading; importance of scrutiny and cross-examination)
- People v Layher, 464 Mich 756 (2001) (traditionally liberal cross-examination to expose witness bias)
- People v Crawford, 458 Mich 376 (1998) (MRE 401 minimal relevance threshold: any tendency)
- McClellan v Collar, 240 Mich App 403 (2000) (relevance has practical bearing; definition for discovery)
- Wilson v Stilwill, 411 Mich 587 (1981) (proper to probe an expert's frequency/testimonial track record)
- Hunt v Freeman, 217 Mich App 92 (1996) (recognizing ‘‘professional witness’’ characterization based on frequency/fees)
- Heins v Detroit Osteopathic Hosp Corp, 150 Mich App 641 (1986) (permissible to question practice limited to evaluations and label as professional witness)
- Collins v Wayne Corp, 621 F.2d 777 (5th Cir. 1980) (pattern of compensation can suggest slanted testimony and is relevant impeachment)
- Behler v Hanlon, 199 FRD 553 (D. Md. 2001) (expert income history and economic ties to insurers relevant to bias/discoverable)
- Costa v Community Emergency Med Servs, Inc, 263 Mich App 572 (2004) (harmonize court rules when plain terms do not conflict)
- Decker v Trux R Us, Inc, 307 Mich App 472 (2014) (focus on plain language and structure of court rules to resolve potential conflicts)
- Reed Dairy Farm v Consumers Power Co, 227 Mich App 614 (1998) (discovery's purpose is to simplify/clarify issues and facilitate trial preparation)