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In Micheli, this Court reasoned that because the actual "independence" of these examinations is questionable, courts sometimes now use the term "insurance medical examination."
Summary of this case from Warda v. Farm Bureau Gen. Ins. Co. of Mich.Opinion
No. 356559
02-10-2022
Kathleen MICHELI, Plaintiff-Appellee, v. MICHIGAN AUTOMOBILE INSURANCE PLACEMENT FACILITY, also known as Michigan Assigned Claims Plan, Defendant, and Citizens Insurance Company, Defendant-Appellee, and Mary Kneiser, M.D., and Ability Assessments, PC, Nonparty-Appellants.
The Saperstein Law Firm, PLLC, Bloomfield Hills (by Andrew M. Saperstein ) for Kathleen Micheli. Secrest Wardle, Troy (by Sidney A. Klingler and Renee T. Townsend ) for Mary Kneiser, M.D., and Ability Assessments, PC. Vandeveer Garzia, PC (by Donald C. Brownell, Troy and Stephanie L. Arndt ) for Citizens Insurance Company.
The Saperstein Law Firm, PLLC, Bloomfield Hills (by Andrew M. Saperstein ) for Kathleen Micheli.
Secrest Wardle, Troy (by Sidney A. Klingler and Renee T. Townsend ) for Mary Kneiser, M.D., and Ability Assessments, PC.
Vandeveer Garzia, PC (by Donald C. Brownell, Troy and Stephanie L. Arndt ) for Citizens Insurance Company.
Before: Gleicher, C.J., and Borrello and Ronayne Krause, JJ.
Ronayne Krause, J.
Nonparty appellants, Ability Assessments, P.C. (Ability Assessments) and Dr. Mary Kneiser, M.D., appeal by leave granted the order denying the motion of defendant-appellee, Citizens Insurance Company (Citizens), to quash plaintiff's subpoena and for a protective order. On appeal, nonparty appellants argue that the trial court abused its discretion by denying Citizens’ motion to quash plaintiff's subpoena. We vacate the trial court's order and remand for further proceedings that are consistent with this opinion.
Micheli v Mich Auto Ins Placement Facility , unpublished order of the Court of Appeals, entered March 25, 2021 (Docket No. 356559).
We use the term "nonparty appellants" when referring collectively to Ability Assessments and Dr. Kneiser. We note that Citizens also disrespectfully filed a brief the day before oral argument. We have nevertheless considered the arguments presented by Citizens.
I. FACTS
This case arises from a December 2018 car-pedestrian collision. In her complaint, plaintiff alleged that she was hit by a car insured by Citizens. After this collision, plaintiff sued Citizens for personal protection insurance (PIP) benefits. Citizens retained Dr. Kneiser as an expert witness to conduct an insurance medical examination (IME) of plaintiff. On November 10, 2020, plaintiff's counsel sent a subpoena to Dr. Kneiser's office. The subpoena was directed to Ability Assessments, of which Dr. Kneiser is the sole owner; Ability Assessments employs or contracts no other physicians or medical providers. The subpoena asked Ability Assessments to produce the following:
Although IMEs are commonly referred to as "independent medical examinations," that appellation is a euphemistic term of art. In reality, and to a great extent central to this matter, an IME involves obtaining a second opinion from a doctor who is entirely selected and paid for by an insurance company, rendering the "independence" of the examination somewhat questionable.
1. The number of independent medical examinations performed by Mary K. Kneiser, MD at the Ability Assessments, P.C. offices in the years 2017, 2018, 2019, and 2020;
2. The number of patient examinations conducted by Mary K. Kneiser, MD at the Ability Assessments, P.C. offices in the years 2017, 2018, 2019, and 2020;
3. Copies of any records of pertaining [sic] to earnings, income, or other money Mary K. Kneiser, MD has been paid for conducting independent medical examinations, sitting for depositions pertaining to independent medical evaluations she has performed, and providing live testimony at trial pursuant to independent medical evaluations she has performed in the years of 2017, 2018, 2019, and 2020;
4. Any and all materials, including medical records and/or other tangible items provided to Ability Assessments, P.C. and/or Mary K. Kneiser, MD pertaining to the medical and/or other evaluations requested by Citizens Insurance
Company of the Midwest with regard to Kathleen Micheli (DOB: 12/24/1953). This request is for copies of any and all documents that were provided to Mary K. Kneiser, MD as it pertains to Kathleen Micheli.
5. Copies of any and all reports and drafts of reports written by Mary K. Kneiser, MD pertaining to Kathleen Micheli (DOB 12/24/1953).
Citizens moved to quash the subpoena under MCR 2.305(A)(4)(a) and for a protective order under MCR 2.302(C). Citing MCR 2.302(B)(4)(a)(iii), Citizens argued that plaintiff could not subpoena its expert witnesses without first seeking leave of the trial court by motion. Citizens further argued that records showing the number of patient examinations Dr. Kneiser had performed—and her compensation for doing so—were not relevant to the core issues of the case: whether Citizens was required to pay plaintiff PIP benefits and whether plaintiff's injuries arose from the collision. Finally, Citizens argued that the subpoena merely sought to harass, embarrass, and dissuade participation in the litigation process and would impose a burden on the expert. Although Citizens in the trial court—and nonparty appellants on appeal—nominally challenged all five of the requests, the substance of their arguments applies only to requests (1) through (3). We therefore regard requests (4) and (5) as tacitly unchallenged both in the trial court and on appeal.
Plaintiff responded that the information sought was relevant to the credibility and potential bias of Dr. Kneiser. Plaintiff also argued that MCR 2.302(B)(4) was inapplicable, so she did not need to move the trial court to allow her to subpoena Citizens’ experts. Finally, plaintiff argued that even if MCR 2.302(B)(4) did apply, the court should still require nonparty appellants to produce the requested records because deposing Dr. Kneiser would be costly and would impose an undue hardship on plaintiff.
In a written order and opinion, the trial court denied Citizens’ motion. The trial court found that MCR 2.302(B)(4) was inapplicable because plaintiff was seeking information about Dr. Kneiser from her employer—Ability Assessments—not from Dr. Kneiser herself. The trial court also found that Citizens failed to show how producing the requested records would be burdensome to Ability Assessments. Citizens then moved for reconsideration, attaching an affidavit from Dr. Kneiser, who stated that Ability Assessments does not prepare or maintain documents that separate sources of income from forensic evaluations, examinations, deposition testimony, and trial testimony from other sources of income. The trial court admitted that "employer" had been a poor word to use in describing the relationship between Dr. Kneiser and Ability Assessments, but it nevertheless denied Citizens’ motion for reconsideration. Thereafter, nonparty appellants filed an emergency application for leave to appeal. We granted nonparty appellants’ application. Micheli v Mich Auto Ins Placement Facility , unpublished order of the Court of Appeals, entered March 25, 2021 (Docket No. 356559).
II. STANDARDS OF REVIEW We review a trial court's decision to grant or deny discovery for an abuse of discretion. Arabo v. Mich. Gaming Control Bd. , 310 Mich.App. 370, 397, 872 N.W.2d 223 (2015). We also review for an abuse of discretion a trial court's decision on a motion for a protective order. Id. "A trial court abuses its discretion when its decision falls outside the range of principled outcomes." Id. at 397-398 (quotation marks and citation omitted). "A trial court necessarily abuses its discretion when it makes an error of law." Ronnisch Constr. Group, Inc. v. Lofts on the Nine, LLC , 499 Mich. 544, 552, 886 N.W.2d 113 (2016).
We review de novo the interpretation and application of statutes, rules, and legal doctrines. Estes v. Titus , 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008). "When ascertaining the meaning of a court rule, the reviewing court should focus first on the plain language of the rule in question, and when the language of the rule is unambiguous, it must be enforced as written." See Acorn Investment Co. v. Mich. Basic Prop. Ins. Ass'n , 495 Mich. 338, 350, 852 N.W.2d 22 (2014). This Court will generally not reverse when a trial court reached a correct result, even if the trial court did so on the basis of incorrect reasoning. Lewis v. Farmers Ins. Exch. , 315 Mich.App. 202, 216, 888 N.W.2d 916 (2016).
III. APPLICABILITY OF MCR 2.302(B)(4)
Nonparty appellants and Citizens first argue that the trial court erred by concluding that MCR 2.302(B)(4) was inapplicable to plaintiff's discovery request. We disagree.
MCR 2.302(B)(4) sets forth the rules governing pretrial discovery and " ‘facts known and opinions held by experts.’ " Spine Specialists of Mich., P.C. v. State Farm Mut. Auto. Ins. Co. , 317 Mich.App. 497, 501, 894 N.W.2d 749 (2016), quoting MCR 2.302(B)(4). In relevant part, MCR 2.302(B)(4)(a) states:
(4) Trial Preparation; Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subrule (B)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(a)(i) A party may through interrogatories require another party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter about which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) A party may take the deposition of a person whom the other party expects to call as an expert witness at trial. The party taking the deposition may notice that the deposition is to be taken for the purpose of discovery only and that it shall not be admissible at trial except for the purpose of impeachment, without the necessity of obtaining a protective order as set forth in MCR 2.302(C)(7).
(iii) On motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions (pursuant to subrule [B][4][c]) concerning fees and expenses as the court deems appropriate.
Nonparty appellants argue 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. Plaintiff argues that MCR 2.302(B)(4) applies only when a party seeks "facts known" or "opinions held" by a nonparty expert and that plaintiff here was not seeking to discover Dr. Kneiser's opinion or facts known to Dr. Kneiser. Plaintiff also argues that MCR 2.302(B)(4) applies only when the facts known or opinions held by an expert were acquired or developed in anticipation of litigation, which the requested records here were not.
As an initial matter, nonparty appellants argue that Dr. Kneiser and Ability Assessments are one and the same, so plaintiff's subpoena to Ability Assessments was really a subpoena to Dr. Kneiser. We find this reasoning questionable. Subject to exceptions for malpractice, principles of respecting the corporate form generally apply to professional corporations. See Nugent v. Weed , 183 Mich.App. 791, 794-796, 455 N.W.2d 409 (1990) ; Craigv. Oakwood Hosp. , 471 Mich. 67, 93-99, 684 N.W.2d 296 (2004). It appears that Dr. Kneiser wishes to "have it both ways," at least to some extent. Nevertheless, as a practical matter, any fact known to Ability Assessments is necessarily known to Dr. Kneiser, and vice versa. Furthermore, the exception for malpractice does slightly blur the distinction between Dr. Kneiser and her professional corporation. Ultimately, we need not resolve this question.
In Spine Specialists , this Court noted that MCR 2.302(B)(4) applies only to facts known or opinions held by an expert that were " ‘acquired or developed in anticipation of litigation ’ "—not to any and all information possessed by an expert. Spine Specialists , 317 Mich.App. at 501-502, 894 N.W.2d 749, quoting MCR 2.302(B)(4). This Court has similarly held that to the extent an expert witness acquired information as a factual witness "or as a result or consequence of his or her normal business activities and duties," the expert is "treated just as if they were any other potential witness, and the scope of discovery as to them is limited only by the provisions of [MCR] 2.302(B)(1)." Linebaugh v. Sheraton Mich. Corp. , 198 Mich.App. 335, 345, 497 N.W.2d 585 (1993) (quotation marks, citation, and emphasis omitted). This Court in Spine Specialists concluded that a doctor who acquired facts about his patient while treating him could not be said to have acquired those facts in anticipation of litigation under MCR 2.302(B)(4). Spine Specialists , 317 Mich.App. at 502, 894 N.W.2d 749.
Nonparty appellants and Citizens cite several unpublished opinions of this Court. Unpublished opinions are not binding, although they may be persuasive. Eddington v. Torrez , 311 Mich.App. 198, 203, 874 N.W.2d 394 (2015). Nonparty appellants argue that in Smith v. Goenka , unpublished per curiam opinion of the Court of Appeals, issued January 7, 2021 (Docket No. 347127), pp. 3-5, 2021 WL 69342, this Court held that MCR 2.302(B)(4) applies when a party seeks an expert witness's financial information. Although Smith did involve a party that requested financial information from an expert witness, no party contended that MCR 2.302(B)(4) was inapplicable, as plaintiff does here. Id. at 3-5. Therefore, the applicability of MCR 2.302(B)(4) was not at issue in Smith , and Smith has no persuasive value in this matter.
Citizens cites two additional unpublished cases, but Citizens presents no argument in support of those cases’ potential applicability. We therefore decline to consider those cases. Mitcham v. Detroit , 355 Mich. 182, 203, 94 N.W.2d 388 (1959). Citizens also points out, correctly, that discovery should not be abused as a weapon of gamesmanship. Rock v. Crocker , 499 Mich. 247, 267 n. 15, 884 N.W.2d 227 (2016). We would wholeheartedly agree with that proposition even if we were not bound to do so, which is why, as we discuss later in this opinion, the trial court has a duty to consider the propriety of the scope of a subpoena and balance the various parties’ competing interests. However, to the extent Citizens argues that certain information should not be discoverable based on considerations beyond the facts of this case, Citizens presents a policy argument that is the exclusive province of the Legislature or our Supreme Court.
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.
IV. SCOPE OF SUBPOENA
Nonparty appellants also argue that the trial court still abused its discretion by declining to quash plaintiff's subpoena because plaintiff's subpoena was unreasonable and oppressive under MCR 2.305(A)(4)(a) and because her request was beyond the scope of discovery under MCR 2.302(B)(1). We agree in part.
"Michigan follows an open, broad discovery policy that permits liberal discovery...." Reed Dairy Farm v. Consumers Power Co. , 227 Mich.App. 614, 616, 576 N.W.2d 709 (1998). "However, Michigan's commitment to open and far-reaching discovery does not encompass fishing expeditions." Augustine v. Allstate Ins. Co. , 292 Mich.App. 408, 419-420, 807 N.W.2d 77 (2011) (quotation marks, alteration, and citation omitted). MCR 2.302(B)(1) addresses the general scope of discovery:
In General. Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claims or defenses and proportional to the needs of the case, taking into account all pertinent factors, including whether the burden or expense of the proposed discovery outweighs its likely benefit, the complexity of the case, the importance of the issues at stake in the action, the amount in controversy, and the parties’ resources and access to relevant information. Information within the scope of discovery need not be admissible in evidence to be discoverable.
"[A] trial court should protect parties from excessive, abusive, or irrelevant discovery requests." Thomas M. Cooley Law Sch. v. Doe 1 , 300 Mich.App. 245, 260-261, 833 N.W.2d 331 (2013).
MCR 2.305(A)(1) allows a party to subpoena a nonparty to produce documents in the nonparty's possession. MCR 2.305(A) states, in relevant part:
(1) A represented party may issue a subpoena to a non-party for a deposition, production or inspection of documents, inspection of tangible things, or entry to land upon court order or after all parties have had a reasonable opportunity to obtain an attorney, as determined under MCR 2.306(A). An unrepresented party may move the court for issuance of non-party discovery subpoenas....
* * *
(4) A subpoena issued under this rule is subject to the provisions of MCR 2.302(C), and the court in which the action is pending or in which the subpoena is served, on timely motion made by a party or the subpoenaed
non-party before the time specified in the subpoena for compliance, may:
(a) quash or modify the subpoena if it is unreasonable or oppressive;
(b) enter an order permitted by MCR 2.302(C) ; or
(c) conditionally deny the motion on prepayment by the party on whose behalf the subpoena is issued of the reasonable cost of producing documents or other tangible things.
Nonparty appellants argue that the information sought by plaintiff is, at most, only marginally relevant. Therefore, they contend that the trial court should have concluded that the expense of having nonparty appellants produce these records outweighs the likely benefit. For mostly the same reasons, nonparty appellants argue that plaintiff's subpoena was unreasonable and oppressive under MCR 2.305(A)(4)(a), and therefore the trial court should have quashed the subpoena.
We disagree with nonparty appellants regarding relevance. 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 N.W.2d 675 (2003). To show that 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. Stilwill , 411 Mich. 587, 599-600, 309 N.W.2d 898 (1981), and one may show that an expert has a pecuniary interest in the outcome, U.S. Fire Ins. Co. v. Citizens Ins. Co. of America , 156 Mich.App. 588, 592, 402 N.W.2d 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.
Plaintiff also argues that the requested records are relevant to establishing whether Dr. Kneiser was qualified to conduct a mental or physical examination under MCL 500.3151. In relevant part, MCL 500.3151(2)(b) imposes certain requirements on examining physicians for "the year immediately preceding the examination ...." (Emphasis added). Even if plaintiff's request were relevant to whether Dr. Kneiser met the requirements under this statute, only one year of records would be relevant. In other words, records from 2017, 2018, and most of 2019 would be irrelevant.
Nonparty appellants alternatively argue that even if MCR 2.302(B)(4) is inapplicable, the trial court erred by failing to quash the subpoena as being "unreasonable or oppressive" under MCR 2.305(A)(4)(a). MCR 2.305(A)(4)(a) uses the word "may." Although the word "may" can impose a mandate, it usually connotes a grant of discretion. See People v. Arnold , 502 Mich. 438, 466-467, 918 N.W.2d 164 (2018). In contrast, the plain language of MCR 2.302(B)(1) clearly obligates the trial court to balance the burden of the proposed discovery against the value of the proposed discovery. The trial court dispensed with this obligation by merely stating that Citizens had "not argued how compliance with the subpoenas would cause any hardship to the Doctors." We decline to make a determination of whether the subpoena should be quashed. However, we conclude that the trial court's analysis was inadequate.
In fact, Citizens did argue that compliance with the subpoena would be time-consuming and expensive and that 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 N.W.2d 490 (2010) ; Hamed v. Wayne Co. , 271 Mich.App. 106, 109-111, 719 N.W.2d 612 (2006) ; Fitzpatrick v. Secretary. of State , 176 Mich.App. 615, 617-618, 440 N.W.2d 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, 886 N.W.2d 113.
Individuals have a privacy interest in their personal tax returns. See Fassihi v. St. Mary Hosp. of Livonia , 121 Mich.App. 11, 15-16, 328 N.W.2d 132 (1982). However, we find persuasive the observation of the United States Court of Appeals for the Sixth Circuit that corporate financial records give rise to somewhat lessened (albeit not nonexistent) privacy concerns. Doe v. United States , 253 F.3d 256, 269 (C.A. 6, 2001). Federal caselaw is not binding, but we may consider it persuasive. Sharp v. Lansing , 464 Mich. 792, 802-803, 629 N.W.2d 873 (2001). As discussed, Dr. Kneiser chose to avail herself of the corporate form, and the subpoena was addressed to her professional corporation. Conversely, MCL 600.2169(5)(a) is plainly inapplicable because this is not a medical malpractice claim and plaintiff is not seeking nonparty appellants’ tax returns to show that Dr. Kneiser is unqualified.
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 of 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.
Additionally, in its late-filed brief, Citizens contends that nonparty appellants have withdrawn their services and that this case is now moot. That contention is not a fact of record. Nevertheless, it is well established that courts may review a technically moot issue if the issue is of public significance and the underlying conduct is likely to recur yet evade judicial review. See, e.g., Detroit v. Ambassador Bridge Co. , 481 Mich. 29, 50-51, 748 N.W.2d 221 (2008). Citizens contends that insurance companies will never be able to retain their own hired doctors if those doctors may be subjected to discovery intended to show that those doctors are biased. The ability of insurance companies to conduct their own medical examinations is certainly one of public significance. Furthermore, if all doctors choose to withdraw their services when served with a discovery request, the propriety of those discovery requests may never come to appellate review. Citizens’ own arguments demonstrate a high likelihood that, unless we consider this case now, a similar situation will recur yet evade appellate review. We therefore choose to review this matter.
Vacated and remanded for proceedings that are consistent with this opinion. We do not retain jurisdiction.
Borrello, J., concurred with Ronayne Krause, J.
Gleicher, C.J. (concurring).
The majority holds that the circuit court did not abuse its discretion by refusing to quash the third-party subpoena issued to Dr. Kneiser. I concur and write separately to expand on the majority's analysis.
The issue presented is whether plaintiff should have been permitted to serve a nonparty subpoena seeking the production of documents on defendant Citizens Insurance Company's expert witness, Dr. Mary Kneiser. The subpoena requested information regarding the percentage of Dr. Kneiser's time devoted to "independent medical examinations" during the preceding four years and copies of financial records reflecting Dr. Kneiser's earnings for performing "independent medical examinations" during the same period. The circuit court refused to quash the subpoena. I agree with the majority that the information sought was discoverable and that the case is not moot.
I. MOOTNESS
Whether a case is justiciable is a court's initial consideration. Here, mootness did not surface as an issue until after the case was submitted to a panel for decision—telling timing, in my view.
One week before oral argument, Ability Assessments’ counsel filed an "emergency" motion to withdraw this appeal on the ground of mootness. Counsel's motion included a letter from Dr. Kneiser dated December 23, 2021, stating simply: "I withdraw as an expert witness in the above listed case." We denied this "emergency" motion a few days later. On January 4, 2022—the day before oral argument—Citizens filed a brief on appeal, a request for oral argument, and a motion for immediate consideration. During the nine months that the case awaited hearing in this Court, Citizens had not filed a single appellate pleading, despite having strenuously objected to the subpoena in the circuit court.
Citizens’ late-filed appellate brief beseeched us to refrain from issuing a "published decision ... affirming the trial court's decision...." During oral argument, counsel for Ability Assessments echoed this plea, adding a mootness argument based on Dr. Kneiser's last-minute withdrawal.
The majority properly holds that the issue presented by the parties’ briefing is publicly significant, capable of repetition, and yet likely to evade review. An additional legal ground defeats the mootness claim and justifies publication of this opinion. The circumstances surrounding Dr. Kneiser's withdrawal as an expert smack of gamesmanship. The United States Supreme Court has declared that "postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye." Knox v. Serv. Employees Int'l Union, Local 1000 , 567 U.S. 298, 307, 132 S Ct 2277, 183 L Ed 2d 281 (2012). This permutation of mootness principles, known as the voluntary-cessation doctrine, has not yet been adopted in Michigan, but it applies here.
In Knox , the petitioner had "defended the decision below on the merits," but after certiorari was granted, took an action designed to render the case moot. Id. The Supreme Court held that the petitioner's action—refunding union dues—would not justify a dismissal for mootness because the petitioner could simply resume the challenged conduct after dismissal. Id. Here, Citizens and Ability Assessments waited until the eleventh hour to decide that they did not want this panel to review the validity of a third-party subpoena seeking an expert's financial records. The legal issue presented in this appeal could arise again on remand and is likely to recur in other cases.
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 argument to join Dr. Kneiser's motion.
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. Ability Assessments has not explained why this Court should now simply pass on an issue it persuasively argued was legally significant. Nor has it addressed a well-recognized exception to mootness involving issues capable of repetition and yet evading review. A narrow exception to the voluntary-cessation doctrine provides that a case is moot when "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Ass'n, Inc, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). The party asserting mootness bears a "heavy burden" of persuasion. Friends of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quotation marks and citation omitted). Ability Assessments has not carried this burden. To the contrary, the facts support that today's "mootness" argument is nothing more than a calculated diversionary tactic intended to avoid a decision by the three judges randomly assigned to hear this case, and that had Ability Assessments drawn a different panel, the legal issue would have been joined without protest.
The voluntary-cessation rule prohibits a party from evading judicial review by ceasing challenged conduct to avoid judicial scrutiny. Here, the record strongly suggests blatant judge-shopping. Ability Assessments went to an unusual and costly length—filing an interlocutory application for leave to appeal—to seek redress for a judicial ruling it characterized as clearly wrong and a flagrant abuse of discretion. This Court granted that application because it raised an issue worthy of plenary consideration. Because the situation presented here is likely to recur the next time a party seeks similar information from an expert witness, the public interest is served by addressing the fully briefed and well-argued legal issue here.
II. AN OVERVIEW OF THE PERTINENT COURT RULES
Ability Assessments raises three substantive arguments: a nonparty subpoena may not be used to discover information possessed by an expert witness without leave of the court, an expert's financial information is beyond the permissible scope of discovery, and the circuit court abused its discretion by failing to quash the subpoena based on its "oppressiveness." I would approach these arguments somewhat differently than the majority, but I reach the same ultimate conclusions. My analysis begins with the general principles underlying the court rules governing discovery.
The Michigan Court Rules declare at their outset that the rules "are to be construed, administered, and employed by the parties and the court to secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties." MCR 1.105. A "just, speedy, and economical determination" of the case at hand is served by discovery that fulfills the central purpose of pretrial discovery: preparation of a lawsuit for trial. That purpose necessarily includes gathering the groundwork for effective cross-examination of the other side's witnesses.
The scope of discovery authorized by the court rules is broad and explicitly recognizes that information relevant to a party's "defenses" is discoverable and need not be admissible at trial:
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claims or defenses and proportional to the needs of the
case, taking into account all pertinent factors, including whether the burden or expense of the proposed discovery outweighs its likely benefit, the complexity of the case, the importance of the issues at stake in the action, the amount in controversy, and the parties’ resources and access to relevant information. Information within the scope of discovery need not be admissible in evidence to be discoverable. [ MCR 2.302(B)(1).]
A matter is "relevant" to a party's defense when it has a practical bearing on that defense or is "pertinent" to it. McClellan v. Collar (On Remand) , 240 Mich. App. 403, 410, 613 N.W.2d 729 (2000) (quotation marks and citation omitted). "Relevance" is broadly defined in Michigan to include evidence that has "any tendency" to make a fact of consequence more or less probable. MRE 401 (emphasis added). Our Supreme Court has explained, "The threshold is minimal: ‘any’ tendency is sufficient ...." People v. Crawford , 458 Mich. 376, 390, 582 N.W.2d 785 (1998), citing MRE 401.
Evidence of a witness's bias readily qualifies as relevant and discoverable. Bias is a common-law term describing "the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party." People v. Layher , 464 Mich. 756, 763, 631 N.W.2d 281 (2001) (quotation marks and citation omitted). A "witness’[s] like, dislike, or fear of a party, or by the witness’[s] self-interest" may demonstrate bias. Id. (quotation marks and citation omitted). "Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’[s] testimony." Id. (quotation marks and citation omitted). In Layher , our Supreme Court expressly advanced a "traditionally liberal view of cross-examination regarding witness bias." Id. at 768, 631 N.W.2d 281. See also Hayes v. Coleman , 338 Mich. 371, 381, 61 N.W.2d 634 (1953) ("It is always permissible upon the cross-examination of an adverse witness to draw from him any fact or circumstance that may tend to show his relations with, feelings toward, bias or prejudice for or against, either party, or that may disclose a motive to injure the one party or to befriend or favor the other. The party producing a witness may not shield him from such proper cross-examination for the reason that the facts thus elicited may not be competent upon the merits of the cause.") (quotation marks and citation omitted).
The next question is whether an expert's financial relationship to a party provides relevant and discoverable evidence of bias.
"Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it." Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (quotation marks and citation omitted). For that reason, cross-examination may help a jury to sort out which experts are more credible than others. An expert witness's credibility is critical to that inquiry.
More than 40 years ago, our Supreme Court acknowledged that "[a]n expert witness's experience testifying in court may influence the manner in which he or she testifies. The same is true for experience in evaluating cases which may come to court. It is thus proper to bring out on cross-examination the number of times a witness testifies in court, or is involved in particular types of cases." Wilson v. Stilwill , 411 Mich. 587, 599-600, 309 N.W.2d 898 (1981). Today, that is an unremarkable proposition. Routinely, experts are extensively questioned at deposition and trial regarding their testimonial track records. This Court has recognized the importance and the legitimacy of such evidence:
While there is nothing improper about doctors choosing to spend a large amount of time reviewing cases and testifying on behalf of injured persons, this does not mean that a reasonable person, made aware of how often such doctors give depositions, and the noteworthy fees such services command, might not, without pejorative intent, describe such practitioners as "litigation doctors" who "were paid a large amount of money." [ Hunt v. Freeman , 217 Mich.App. 92, 98, 550 N.W.2d 817 (1996) (citation omitted).]
Indeed, counsel may properly refer to an opponent's expert as a "professional witness" when the proofs showed the doctor's practice was "limited to evaluations." Heins v. Detroit Osteopathic Hosp. Corp. , 150 Mich.App. 641, 644-645, 389 N.W.2d 141 (1986).
Equally unremarkable is the notion that an expert who regularly testifies for one particular attorney or client may be biased in a party's favor. Wilson , 411 Mich. at 600-601, 309 N.W.2d 898. And because experts are compensated for their services, inquiry into the amount of compensation received is also standard practice on cross-examination. It is no stretch to conclude that an expert who is well compensated by a particular party, or who has a continuing and close financial relationship with a party, may be biased in that party's favor. It is well accepted that "[a] showing of a pattern of compensation in past cases raises an inference of the possibility that the witness has slanted his testimony in those cases so he would be hired to testify in future cases." Collins v. Wayne Corp. , 621 F.2d 777, 784 (C.A. 5, 1980).
[T]he fact that an expert witness may have a 20 year history of earning significant income testifying primarily as a witness for defendants, and an ongoing economic relationship with certain insurance companies, certainly fits within recognized examples of bias/prejudice impeachment, making such facts relevant both to the subject matter of the litigation, and the claims and defenses raised, and placing it squarely within the scope of discovery authorized by [Federal Rule of Civil Procedure] 26(b)(1) .... [ Behler v. Hanlon , 199 F.R.D. 553, 557 (D. Md., 2001).]
That said, an expert's tax returns and other financial details may constitute private and confidential information, or may require time-consuming efforts to pull together. In medical malpractice cases, the Legislature has decreed that an expert's tax returns are simply off-limits. MCL 600.2169(5)(a). In all other cases, the court rules permit the trial judge to issue a protective order to protect an expert "from annoyance, embarrassment, oppression, or undue burden or expense ...." MCR 2.302(C).
Michigan's discovery rules authorize comprehensive inquiry into relevant subjects, including a witness's credibility, provided that the inquiry is "proportional to the needs of the case." MCR 2.302(B)(1). The information at issue here is relevant to Dr. Kneiser's possible bias in favor of insurance companies, specifically, Citizens. Relevant information is discoverable. The more complicated questions are whether plaintiff's subpoena seeking that information conformed with the court rules, and whether the burden or expense of the discovery of this information outweighs its likely benefits.
III. MCR 2.302(B)(4) VERSUS MCR 2.305
Two court rules are at play in this case: one governing discovery from expert witnesses, MCR 2.302(B)(4), and the other allowing a party to subpoena a nonparty for documents, MCR 2.305(A)(1). Ability Assessments contends that the expert-discovery rule trumps the nonparty-subpoena rule. In my view, these two rules should be read individually and then harmonized. This approach has been applied in countless cases. For example, in Costa v. Community Emergency Med. Servs., Inc. , 263 Mich.App. 572, 584, 689 N.W.2d 712 (2004), we explained that where "the plain terms of the rules do not conflict with each other, we interpret them individually by their unambiguous terms. If we can construct two rules so that they do not conflict, that construction should control." (Quotation marks and citations omitted.) More recently, we highlighted the importance of focusing on the "plain language" of the rules and discerning their intent based on that language and the "structure" of the court rules as a whole. Decker v. Trux R. Us, Inc. , 307 Mich.App. 472, 479, 861 N.W.2d 59 (2014) (quotation marks and citation omitted). When a potential conflict is not "irreconcilable," the two rules should be read as a "harmonious whole." Id. at 481, 861 N.W.2d 59. Doing so here yields the conclusion that the discovery of evidence relevant to an expert's credibility may be pursued in several different ways.
The catch line of MCR 2.302(B)(4) is "Trial Preparation; Experts." The rule's first sentence provides that it covers "[d]iscovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subrule (B)(1) and acquired or developed in anticipation of litigation or for trial...." Information meeting that description may be discovered "only" in accordance with the methods described in the balance of the rule. The rule does not offer the option of serving a third-party subpoena on a designated expert. The rule does, however, allow a court "[o]n motion" to "order further discovery by other means," subject to payment of the expert of a reasonable fee for time spent in complying with a discovery request. MCR 2.302(B)(4)(a)(iii ).
The majority correctly concludes that MCR 2.302(B)(4) applies only to facts and opinions "acquired or developed" by an expert "in anticipation of litigation." Information relevant to Dr. Kneiser's credibility does not fit that description. The most natural construction of the term "acquired or developed in anticipation of litigation" suggests that the rules’ drafters anticipated that other subjects would arise during discovery. But even if MCR 2.302(B)(4) is broadly and nontextually construed to include the information sought in the subpoena, any error in permitting the discovery is entirely harmless.
MCR 2.302(B)(4)(a)(iii ) empowers the circuit court to "order further discovery" on motion. Plaintiff did not bring the motion leading to the order from which this appeal flows—Ability Assessments and Dr. Kneiser did. This is a distinction without a difference, as the rule contemplates that a judge may order discovery of an expert beyond the limits described in MCR 2.302(B)(4) —and a judge did.
And there is another reason that plaintiff's failure to move for permission to serve the subpoena on Dr. Kneiser and her professional corporation is much ado about nothing. The rule permits a party to take an expert's deposition. MCR 2.302(B)(4)(a)(ii ). The rule governing depositions on oral examination, MCR 2.306, allows a party's notice of deposition to include "a request for the production of documents and tangible things at the taking of the deposition. MCR 2.310 applies to the request." MCR 2.306(B)(2). Ability Assessments and Dr. Kneiser concede that an expert's "bias and credibility" are "relevant," but contend that "such matters may be inquired into on cross examination" rather than being the subject of subpoenas. MCR 2.306(B)(2) directly refutes that argument. The rule permitted plaintiff to seek information at issue by way of a notice of deposition accompanied by a request for production, which serves precisely the same function as a subpoena. Plaintiff apparently decided to forgo the deposition (in the time of COVID-19, not an unreasonable choice). Once again, any deviation from the strict letter of the rules was harmless.
"[T]he purpose of discovery is to simplify and clarify issues." Reed Dairy Farm v. Consumers Power Co. , 227 Mich.App. 614, 616, 576 N.W.2d 709 (1998). "Thus, the rules should be construed in an effort to facilitate trial preparation and to further the ends of justice." Id. And the rules are intended to promote "the just, speedy, and economical determination of every action," which requires overlooking errors that "do[ ] not affect the substantial rights of the parties." MCR 1.105. Here, Ability Assessments and Dr. Kneiser decry plaintiff's failure to notice Dr. Kneiser's deposition and to request the information contained in the third-party subpoena via a deposition notice. They have yet to explain what possible difference this could have made. Had the deposition notice been served with a request for production, Ability Assessments and Dr. Kneiser would have filed an objection. And exactly the same result would have been obtained.
Finally, MCR 2.305(A)(1) and (2) permit a party to "issue a subpoena to a non-party for a deposition, production or inspection of documents, inspection of tangible things, or entry to land" and to state in the subpoena that "it is solely for producing documents ... for inspection and copying, and that the party does not intend to examine the deponent." The nonparty may move to quash the subpoena or to request prepayment of the reasonable cost of producing the documents. MCR 2.305(A)(4). MCR 2.305 is not limited to nonexperts. Reading this rule in conjunction with MCR 2.306(B) leads to the inescapable conclusion that MCR 2.305 offers an alternative pathway for discovering facts relevant to an expert's credibility and evidence pertinent to MCL 500.3151(2)(b), which requires that "[d]uring the year immediately preceding [an] examination" related to a claim for personal protection insurance benefits, a physician "must have devoted a majority of his or her professional time" to the "active clinical practice of medicine" or to the instruction of medical students. Facts germane to this statute are most easily garnered in precisely the manner that plaintiff employed.
The court rules under scrutiny do not conflict. Rather, they are part of a comprehensive approach to discovery embodied by rules designed to open doors to information rather than to make the process onerous and unreasonably complex.
IV. PROTECTIVE ORDERS
In its motion to quash the subpoena, Citizens argued that it was overly burdensome, expensive, and would "serve[ ] only to annoy and disturb" Dr. Kneiser. Citizens alleged that it would take Dr. Kneiser "a significant amount of time" to comply but produced no evidence to that effect, such as an affidavit from Dr. Kneiser shedding light on her record-keeping practices. After the circuit court refused to quash the subpoena, Citizens filed a motion for reconsideration and attached an affidavit signed by Dr. Kneiser that partially addressed the subjects of the nonparty subpoena. But the affidavit provided no information relevant to Citizens’ argument that the subpoena was unduly burdensome. The circuit court admitted in its opinion denying reconsideration that it had not initially addressed Citizens’ argument that the subpoena was oppressive or burdensome, noting that Citizens "still has not provided the Court with any information regarding the burden or expense of the proposed discovery in order for this Court to determine whether such outweighs its likely benefit." The circuit court continued:
Similarly, Citizens has not made a cogent argument that the subpoenas issued by Plaintiff were intended to harass, embarrass, and dissuade the Doctors from participating in the litigation process. Merely citing to a case where the Court of Appeals determined that it was not an abuse of discretion to deny a discovery request does not show that any discovery regarding an expert witness’[s] potential bias is intended to harass, embarrass, or intimidate them.
In my view, Citizens and Dr. Kneiser have been afforded ample opportunity to support that alleged burden imposed by the subpoena or that it was the product of improper motives. I would hold that the circuit court did not abuse its discretion in finding the discovery proportional. Nevertheless, in its opinion on reconsideration the circuit court generously afforded Citizens the option of filing a "separate motion requesting a protective order." Given that concession, I agree that remand regarding that question alone is appropriate.