Kleehammer v. Monroe County

LeGENDRE v MONROE COUNTY Docket No. 194647. Submitted November 18, 1997, at Lansing. Decided April 2, 1999, at 9:15 A.M. Terrie J. LeGendre and Nancy M. Feick, former Monroe County assistant prosecutors, brought an action under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against Monroe County and the Monroe County Prosecutor after they were not reappointed as assistant prosecutors and not offered other employment with the county. LeGendre alleged gender discrimination and retaliation for filing civil rights complaints with the Equal Employment Opportunity Commission and the Michigan Department of Civil Rights. Feick raised the same allegations made by LeGendre and further alleged age discrimination and raised issues concerning political activity and affiliation. Both plaintiffs alleged that they suffered embarrassment, mortification, humiliation, and outrage as a result of the claimed discriminatory acts of the defendants. The court, Timothy P. Pickard, J., granted a motion by the defendants for severance of the plaintiffs’ actions. After LeGendre asserted the physician-patient privilege in declining to answer the defendants’ interrogatories about her medical history, including psychiatric care, if any, the court granted defendants’ motion under MCR 2.314 to preclude her from presenting evidence about her medical history or mental or physical condition as they relate to the claim of mental distress. After LeGendre failed to comply with a discovery order to produce medical records related to a physical injury for which she received disability insurance benefits while employed in the prosecutor’s office, the court dismissed her action. LeGendre appealed. The Court of Appeals held,-. 1. The trial court did not abuse its discretion in granting the defendants’ motion for severance. Different proofs would be required to establish each of the plaintiffs’ cases in light of differences in their backgrounds, levels of experience, length of employment in the prosecutor’s office, and positions held in the prosecutor’s office. Feick also raised claims that were not raised by LeGendre. There was great potential for jury confusion and prejudice against the defendants had the claims not been severed. 2. The trial court did not err in precluding LeGendre from presenting evidence of her medical history or mental or physical condition. Administrative Order No. 1996-4 constrains this panel of the Court of Appeals to follow the holding in Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511 (1997), that allegations of ordinary mental distress by a plaintiff in an employment discrimination case place the plaintiff’s mental condition in controversy and, thus, make it open to discovery pursuant to MCR 2.314. MCR 2.314(B)(2) provides that, unless the court orders otherwise, if a party asserts that medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition. Were it not for Hyde, the Court would hold that the mental condition of a party is in controversy for purposes of MCR 2.314 when there is a separate tort claim for emotional distress, the plaintiff alleges that the plaintiff suffers from a severe ongoing mental injury or a psychiatric disorder, the plaintiff will offer expert testimony to support the claim, or the plaintiff concedes that the plaintiff’s mental condition is in controversy. Because none of these situations is involved in this case, the Court, were it not for Hyde, would reverse the order precluding the plaintiff from introducing evidence supportive of her claim of emotional distress. 3. The trial court abused its discretion in dismissing LeGendre’s action for her failure to comply with the discovery order for the production of medical records related to her disability claim. An in camera hearing is the appropriate vehicle to determine whether the information requested was protected by the physician-patient privilege as contended by LeGendre. The case must be remanded for such a determination. Orders of severance and preclusion of LeGendre from presenting evidence regarding emotional distress affirmed; order of dismissal vacated; case remanded for in camera hearing regarding whether disability medical records are subject to privilege. 1. Trial — Severance. A court may grant a motion for separate trials to avoid prejudice or for convenience, expedition, or economy; although a ruling regarding such a motion is reviewed on appeal for abuse of discretion, severance should be ordered only upon the most persuasive showing that the convenience of all the parties and the court requires it (MCR 2.505[B]). 2. Peetrial Procedure — Discovery — Remedies — Appeal. The Court of Appeals reviews for abuse of discretion a trial court’s decision to dismiss an action or impose sanctions for the plaintiff’s failure to permit discovery. 3. Pretrial Procedure — Discovery — Privileged Information — In Camera Hearings. An in camera hearing is the appropriate vehicle to determine whether information requested in discovery proceedings is protected by a statutory privilege. Green & Green (by Christine A. Green), for Terrie J. LeGendre. Cummings, McClorey, Davis & Acho, P.C. (by Suzanne P. Bartos and Thomas J. Laginess), for Monroe County. Johnson, Rosati, Galica, LaBarge, Aseltyne & Field, P.C. (by Laura A. Amtsbuechler and Marcelyn A. Stepanski), for Monroe County Prosecutor. Before: Hood, P.J., and McDonald and White, JJ. Per Curiam. In this sex discrimination and retaliation case brought under the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) el seq., plaintiff appeals as of right from the circuit court’s orders severing plaintiff’s case from that of a coplaintiff; precluding plaintiff from presenting evidence relating to her psychological, emotional, or physical condition in support of her claims for noneconomic damages; and granting dismissal in favor of defendants. We vacate the circuit court’s order of dismissal and affirm its order severing the cases. Regarding the order precluding plaintiff from presenting evidence relating to her psychological, emotional, or physical condition, we disagree with, but must follow, Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511; 575 NW2d 36 (1997), under Administrative Order No. 1996-4, and therefore affirm. Were it not for Hyde, we would reverse the portion of the order precluding testimony regarding plaintiffs ordinary psychological or emotional distress and remand for further proceedings consistent with this opinion. Plaintiff and Nancy M. Feick, initially a coplaintiff in this case, were attorneys in the Monroe County Prosecutor’s Office. Feick was hired by the prosecutor’s office in 1985 and plaintiff was hired in 1991. In January of 1991, Feick was promoted to chief assistant prosecutor by then-prosecutor William Frey. Defendant Edward F. Swinkey was elected Prosecuting Attorney of Monroe County in the 1992 election. Plaintiff had run against him. Plaintiff and Feick were the only two women working in the Monroe County Prosecutor’s Office when Swinkey took office. Plaintiffs and Feick’s employment ended on December 31, 1992, when Swinkey did not reappoint them. Two male assistant prosecutors were also not reappointed by Swinkey. Plaintiff and Feick filed complaints with the Equal Employment Opportunity Commission (eeoc) and the Michigan Department of Civil Rights (mdcr), claiming that Swinkey fired them because of their gender. Subsequently, plaintiff applied for an assistant prosecutor position and was granted an interview. During the interview, Swinkey questioned plaintiff about her discrimination charges and warned her that what she had said would be held against her. Swinkey hired a female applicant who had not yet passed the bar examination to fill the position. During the summer of 1993, plaintiff was offered the position of Special Prosecutor for Domestic Affairs for Monroe County, but only when she agreed to withdraw her discrimination charges. Plaintiff left that position at the end of 1993. In December of 1993, plaintiff applied for a position as a Monroe County Juvenile Court Referee, but a male was hired for the job. In the scant excerpts of plaintiffs deposition before us, plaintiff testified that she left the position of special prosecutor for domestic affairs after only six months because of a difference of opinion with a supervisor, John Pace, regarding her being on disability. Plaintiff testified that her doctor had told her that she could go back to work part-time following foot surgery. She testified that she was teaching at a community college at the time and had done so for the preceding four years. Plaintiff testified that she approached Pace regarding working part-time until the end of the college semester, which was in six weeks, and said that she would then return to work full-time. Plaintiff testified that Pace told her that if she could not work full-time as a prosecutor, she could not teach at the college. Plaintiff testified that classes at the college were starting that day, that she could not leave the college without an instructor, and that she therefore left the prosecutor’s position. Plaintiff believed she had been treated discriminatorily by her supervisor because a male co-worker had been allowed to take a great deal of disability time off and hold an outside job without reprisal. Plaintiff received disability payments after her foot surgery, but refused to divulge the amount at deposition, asserting the physician-patient privilege. Plaintiff and Feick filed their complaint on July 14, 1995. They alleged that defendants’ actions regarding their employment violated the cra, as well as their right to equal protection guaranteed by Const 1963, art 1, § 2. The complaint alleged that defendants fired and refused to rehire them because they were female, because of Feick’s age, and in retaliation for their civil rights complaints to the EEOC and the MDCR. It further alleged that they “each suffered injuries, all of which are continuing in nature,” including embarrassment, mortification, humiliation, and outrage. Before discovery began, Swinkey filed a motion to sever plaintiff’s and Feick’s claims, pursuant to MCR 2.505(B), 2.206, and 2.207, with which Monroe County concurred. The circuit court granted defendants’ motion, severing the cases for discovery as well as trial. After both defendants filed motions to compel plaintiff and Feick to answer interrogatories, the parties stipulated that plaintiff and Feick would produce the interrogatory answers within ten days. Plaintiff and Feick served answers to Swinkey’s interrogatories within the stipulated time, but both responded to the following interrogatories with the answer “Plaintiff objects to this interrogatory for the reason that it calls for privileged information.” 14. Have you treated with or consulted with any psychologist, psychiatrist, social worker, clergyman or other professional regarding the mental distress alleged in your Complaint? 15. If you [sic] response to the proceeding [sic] interrogatory was in the affirmative, please state: (a) The name and address of each and every such person visited; (b) The dates that you consulted with, or treated with each and every such professional; (c) Please complete, sign and return the enclosed authorization from [sic] for each and every such person. 16. List chronologically with dates, the names and addresses of all doctors, psychiatrists, psychologist or social workers whom you have seen or with whom you have consulted from January 1980 to present; the nature of the ailment or other reason for which each doctor was consulted and the treatment on each occasion. 17. Give the names and address of all hospitals, including psychiatric, where you have been either and [sic] in-patient or an out-patient during yo [sic] entire life and as to each hospital, give: (a) Date of admission and discharge; (b) Nature of the ailment or illness for which you were hospitalized; (c) Name and addresses of any attending physicians. The interrogatories also asked the foüowing question regarding physical injury: 18. Do you allege any physical injury as a result of the incidents alleged within your Complaint? If so, set forth the exact nature of all present physical complaints which you allege are attributable to the incidents complained of. ANSWER: No. 19. If you have been hospitalized or treated by a doctor or, [sic] medical professional by reason of this incident, list the names and addresses of all such hospitals, doctors clinics or other medical institutions with which you were a patient as well as the date of confinement in any hospital. ANSWER: Not applicable. 20. Have you discussed this case with any potential expert witnesses or do you intend to expect to call an expert to testify on your behalf as the time of trial?. . . . ANSWER: No. Swinkey filed a motion to preclude plaintiffs from presenting evidence of their physical and mental damages at trial pursuant to MCR 2.314(B)(2) so that he would not be “sandbagged” with unknown and unforeseen information. Monroe County concurred in Swinkey’s motion. At the beginning of the hearing regarding Swinkey’s motion, the circuit court requested that separate complaints be filed because it had not received them after entering its order to sever. Plaintiff’s counsel asserted that plaintiff had not put her physical and mental conditions in controversy simply by alleging embarrassment, mortification, humiliation, and outrage, and further stated that plaintiff did not plan to present expert testimony at trial about any physical or mental injuries suffered. The circuit court granted defendants’ motion, stating: It appears from the court rule that when you invoke the privilege that the parties may not thereafter present or introduce any physical, documentary or testimonial evidence relating to the medical history, mental or physical condition of the Plaintiff who is complaining. And I can see a real pitfall to the Defendant if such a motion were not filed for the simple reason that if the testimony comes in at the time of trial that somebody was crying uncontrollably or demonstrating mental or physical stress and trying to relate it to the complaint against the Defendant without the ability to discover these facts there might be some other underlying cause for that emotional distress. So, therefore, I would grant the motion. Swinkey subsequently filed a motion to compel production of plaintiff’s disability insurance records pursuant to MCR 2.313(A)(2)(a). Swinkey had requested medical records related to plaintiff’s disability claim, but plaintiff refused to release them, asserting the physician-patient privilege. Swinkey alleged that plaintiff left the special prosecutor’s job because of her disability, not because of defendants’ threats that she would receive and keep the job only if she dropped her discrimination complaints or because she was forced to choose between employment by Monroe County or by the community college. Swinkey claimed that he needed the disability records to ascertain plaintiff’s ability to hold the special prosecutor’s job or find similar employment and so meet her obligation to mitigate damages. Swinkey also argued that any disability payments plaintiff received after resigning her position as special prosecutor for domestic affairs were a collateral source that defendants should be allowed to deduct from any wage-loss claim under MCL 600.6303(1); MSA 27A.6303(1), and that this information should be contained in the disability insurance records. Swinkey further argued that defendants believed plaintiff was on disability for a different reason before returning to work for the prosecutor’s office in the summer of 1993. He argued that it appeared that plaintiff made the disability claim before leaving the prosecutor’s office on January 1, 1993. At the hearing regarding Swinkey’s motion, Swinkey’s counsel argued that although plaintiff was now willing to answer questions regarding when she received disability and the records of payments received, and that the parties would stipulate an order requiring that she answer those questions and produce records of payment, plaintiff still refused to release the medical records contained in the disability records on the basis of privilege. Counsel asserted that the records were relevant to plaintiff’s ability and efforts to mitigate her damages incurred after leaving the friend of the court position in 1993. Plaintiff’s counsel argued that plaintiff’s medical condition was irrelevant, in that it was not necessary to know the specific medical condition to determine whether plaintiff was available for work because, if she received disability benefits, she was unavailable for work and could not obtain back-pay for those periods. Counsel argued that it was the fact of disability that was relevant, that plaintiff had agreed to provide that information, and that the court had already stricken noneconomic damages and plaintiff still insisted on her right of privacy. Counsel for Monroe County then suggested a compromise, i.e., that the court view the medical records in camera. Plaintiff’s counsel and Swinkey’s counsel agreed, noting: Ms. Amtsbeuchler [defense counsel]: That would be fine. I just want to make sure we are clear, I think there is more than one disability application. I think there may be three: one before she can [sic, came] to the prosecutor’s office: one while she was at the prosecutor’s office, after the time she found out she wasn’t going to be reappointed: and three, at the special prosecutor’s job. We think they are all relevant, whether it was foot surgery or some other condition. I guess the condition may or may not be important depending on what it is. We have no way of knowing until, obviously, somebody takes a look at them. And if the court is willing to do that, that’s fine. Plaintiffs counsel responded: If the Court is inclined to provide copies of the medical records to the Defendants, I think in fairness to the Plaintiff the Plaintiff should have the opportunity to dismiss the lawsuit rather than waiving that privilege. The Court: At this point I will not read the medical records in camera because I will not investigate this case and do the work of the attorneys. I will grant the motion that she either produce those [disability records including the medical records] or the case be dismissed. Plaintiff did not produce the records, and the court dismissed her case. This appeal ensued. i First, we disagree with plaintiffs argument that the circuit court erred in granting defendants’ motion to sever her claims from Feick’s. MCR 2.505(B) allows a circuit court to sever trials to avoid prejudice or for convenience, expedition, or economy. Hodgins v Times Herald Co, 169 Mich App 245, 261; 425 NW2d 522 (1988). Although we review for abuse of discretion a circuit court’s grant of a motion to sever, the decision to sever trials should be ordered only upon the most persuasive showing that the convenience of all parties and the court requires it. Id.; Jemaa v MacGregor Athletic Products, 151 Mich App 273, 278; 390 NW2d 180 (1986). Plaintiff’s claims arose from a different set of occurrences than Feick’s, except, possibly, Swinkey’s not reappointing them on December 31, 1992. See Jemaa, id. at 279. On that date, plaintiff was an assistant prosecutor and had worked for the prosecutor’s office for about one year, while Feick was chief assistant prosecutor and had worked for the prosecutor’s office for over seven years. Feick had more responsibility and more seniority than plaintiff. After not being reappointed, plaintiff and Feick applied for different positions