Kathleen Micheli v. Michigan Automobile Ins Placement Facility
356559
| Mich. Ct. App. | Feb 10, 2022Background
- Plaintiff sued Citizens for PIP benefits after a 2018 car crash; Citizens retained Dr. Mary Kneiser to perform an insurance medical examination (IME).
- Plaintiff served a subpoena on Ability Assessments, P.C. (Dr. Kneiser’s professional corporation) seeking: counts of IMEs/patient exams (2017–2020), compensation records for IME-related work (2017–2020), all materials provided for plaintiff’s evaluation, and reports/drafts related to plaintiff.
- Citizens moved to quash and for a protective order, arguing MCR 2.302(B)(4) requires court leave to subpoena an opposing party’s experts and that requests for exam counts/compensation were irrelevant and unduly burdensome.
- The trial court denied the motion, reasoning MCR 2.302(B)(4) was inapplicable because the subpoena targeted the employer (Ability Assessments) rather than the expert personally, and found Citizens had not shown hardship.
- On reconsideration Citizens submitted an affidavit from Dr. Kneiser explaining Ability Assessments does not segregate forensic income records; the trial court still denied reconsideration. The Court of Appeals granted leave to appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of MCR 2.302(B)(4) to subpoena for business records of nonparty expert’s professional corporation | Micheli: rule applies only to facts/opinions an expert acquired or developed in anticipation of litigation; here plaintiff seeks ordinary-course business records, not expert opinions | Citizens/Nonparty-appellants: rule applies to any discovery directed to an expert (including financial info) and requires leave to subpoena | Held: MCR 2.302(B)(4) does not apply because plaintiff sought ordinary-course business records, not facts/opinions acquired in anticipation of litigation. |
| Relevance of financial records and counts of IMEs/patient exams | Micheli: these records bear on Kneiser’s credibility and potential bias (pattern of testifying for insurers; pecuniary interest) | Citizens: marginal relevance; invasion of privacy; burdensome and unnecessary | Held: Records are relevant to credibility/bias; relevance not defeated by being unrelated to substantive issues. |
| Whether subpoena was unreasonable/oppressive under MCR 2.305(A)(4)(a) and proportional under MCR 2.302(B)(1) | Micheli: subpoena justified; deposing the expert is costly so document production is reasonable | Citizens: production would be time-consuming, expensive, invade privacy; less intrusive alternatives exist | Held: Trial court erred by failing to perform the required burden/benefit balancing under MCR 2.302(B)(1); remanded for the court to weigh value of discovery against burden (considering affidavit and alternatives). |
| Corporate form—treatment of Ability Assessments vs Dr. Kneiser | Micheli: subpoena to the corporation is distinct from subpoena to the individual expert | Citizens: corporation and Dr. Kneiser are effectively the same; discovery should be limited | Held: Court declined to decide definitively; noted corporate form generally respected but did not need to resolve because facts known to the corporation and doctor overlap; remand instructions account for practical burdens. |
Key Cases Cited
- Spine Specialists of Mich, PC v State Farm Mut. Auto Ins. Co., 317 Mich. App. 497 (discovery of expert limited to facts/opinions acquired in anticipation of litigation)
- Ronnisch Constr. Group, Inc. v Lofts on the Nine, LLC, 499 Mich. 544 (abuse-of-discretion standard; courts must avoid legal error)
- Acorn Investment Co v Mich. Basic Prop. Ins. Ass’n, 495 Mich. 338 (focus on plain language when interpreting court rules)
- Linebaugh v Sheraton Mich. Corp., 198 Mich. App. 335 (treating expert as ordinary witness for facts acquired in normal business activities)
- Reed Dairy Farm v Consumers Power Co., 227 Mich. App. 614 (Michigan permits liberal discovery)
- Augustine v Allstate Ins. Co., 292 Mich. App. 408 (discovery does not permit fishing expeditions)
- Wilson v Stilwell, 411 Mich. 587 (pattern of testifying for a category of parties bears on expert bias)
- US Fire Ins. Co. v Citizens Ins. Co. of America, 156 Mich. App. 588 (pecuniary interest as evidence of expert bias)