Michigan Court of Appeals; Docket # 342741; Unpublished
Judges Gadola, Boonstra, and Swartzle; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Issuance of Court Orders in Discovery Disputes [§3159]
Good Cause Requirement for Court Orders [§3159]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision involving a discovery dispute, the Court of Appeals affirmed the trial court’s denial of the defendant’s motion for a qualified protective order that would enable it to conduct ex parte interviews with the plaintiff’s doctors. The Court of Appeals held that although Michigan law and the Michigan court rules generally allow for ex parte interviews with a plaintiff’s doctors in civil litigation, the no-fault act, itself, specifically MCL 500.3159, controls discovery disputes in no-fault actions. MCL 500.3159 requires that the defendant establish good cause for seeking specific discovery, and permits the trial court to limit or refuse such discovery if the defendant fails to do so. In this case, the Court of Appeals held that the trial court did not abuse its discretion in determining that the defendant did not establish the requisite good cause in support of its motion for a QPO.
The plaintiff, Felisha Newby, was injured in a motor vehicle collision and filed this first-party action against her insurer, American Zurich Insurance Company after it refused her claim for no-fault PIP benefits. Thereafter, American Zurich requested that Newby authorize a qualified protective order which would have permitted American Zurich to conduct ex parte interviews with Newby’s doctors. Newby declined to authorize the QPO, arguing that permitting American Zurich to conduct ex parte interviews with her doctors would allow it “unfettered access to all of her physicians and medical records, regardless of relevance.” American Zurich then filed a motion requesting that the trial court issue the QPO, which the trial court declined.
The Court of Appeals affirmed the trial court’s denial of the defendant’s motion and rejected American Zurich’s argument that, because insurers are permitted to conduct ex parte interviews with plaintiffs’ doctors in other types of civil litigation, American Zurich should be allowed to do the same in this case. The Court noted that cases brought under the no-fault act are distinct and should not necessarily be controlled by the court rules in the same way as any other type of civil litigation. In the words of the Supreme Court, “while the court rules control matters on which the no-fault act is silent, they do not control matters specifically addressed by the [no-fault] act.” This specific matter was addressed by the no-fault act, specifically MCL 500.3159, which requires that the defendant establish good cause for seeking the discovery. MCL 500.3159 also permits the trial court to limit or refuse discovery if the requisite good cause is not established, which both the trial court and the Court of Appeals agreed was the case here.
We recognize that “Michigan follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending case,” Augustine v Allstate Ins Co, 292 Mich App 408, 419; 807 NW2d 77 (2011) (quotation marks and citation omitted), and that, generally, “nothing precludes defense counsel from seeking an ex parte interview with a plaintiff’s treating physician once the plaintiff has waived the physician-patient privilege.” Holman, 486 Mich at 449. However, the discovery dispute in this action under the no-fault act is controlled by MCL 500.3159, and under that statute an order of discovery is discretionary with the trial court upon a showing of good cause.
