United States District Court, E.D. Michigan, Southern Division
DAFINKA STOJCEVSKI, individually and as Personal Representative of the Estate of DAVID STOJCEVSKI, Plaintiff,
COUNTY OF MACOMB, et al. Defendants.
OPINION AND ORDER REJECTING DEFENDANTS'
OBJECTIONS TO MAGISTRATE JUDGE'S AUGUST 22, 2017 ORDER
AND AFFIRMING ORDER
V. PARKER U.S. DISTRICT JUDGE.
federal civil rights action, brought pursuant to 42 U.S.C.
§ 1983, arises from the death of Plaintiff s decedent,
David Stojcevski, while incarcerated at the Macomb County
Jail. The matter presently is before the Court on objections
filed by Defendant Correct Care Solutions ("CCS")
to Magistrate Judge David R. Grand's August 22, 2017
Order Granting Plaintiffs Motion to Compel. (ECF No. 92.) In
the Order, Magistrate Judge Grand held that Michigan's
Peer Review Privilege, Mich. Comp. Laws § 333.21515,
does not shield CCS' Care Team Meeting and Mortality
Review Documents from discovery. (Id.) CCS filed
objections to Magistrate Judge Grand's decision on
September 5, 2017. (ECF No. 96.) In those objections, CCS
also asks the Court to certify the privilege issue to the
Sixth Circuit Court of Appeals for interlocutory review if
the Court affirms Magistrate Judge Grand's decision.
Plaintiff filed a response on September 19, 2017. (ECF No.
party objects to a magistrate judge's non-dispositive
decision, the reviewing court must affirm the magistrate
judge's ruling unless the objecting party demonstrates
that it is "clearly erroneous" or "contrary to
law." Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A).
The "clearly erroneous" standard does not empower a
reviewing court to reverse a magistrate judge's finding
because it would have decided the matter differently.
See, e.g., Anderson v. Bessemer City, N.C., 470 U.S.
564, 573-74 (1985). Instead, the "clearly
erroneous" standard is met when despite the existence of
evidence to support the finding, the court, upon reviewing
the record in its entirety, "is left with the definite
and firm conviction that a mistake has been committed."
Id. (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)). For the reasons that
follow, this Court finds no error in Magistrate Judge
argues that Magistrate Judge Grand committed a legal error in
failing to conclude that the Sixth Circuit's decision in
loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580
(6th Cir. 2014), is controlling precedent and mandates the
application of Michigan's Peer Review Privilege in this
§ 1983 action. This Court disagrees. Neither the
District Court nor Sixth Circuit in loyd considered
whether the privilege applies in a federal question case.
the issues presented were whether Michigan's Peer Review
Privilege (1) extends to reports involving actions committed
by hospital staff members who are not physicians or nurses,
and (2) was waived by the hospital's submission of a
summary of its report to the EEOC. Loyd, 766 F.3d at
588-89. As a review of the briefing in Loyd
reflects, the parties expressly proceeded under the
assumption that the application of the privilege was being
determined with respect to only the plaintiffs state law
claim for intentional infliction of emotional distress and
was not relevant to the plaintiffs federal discrimination
claims. See Def's Br. in Resp. to Mot. Compel,
Loyd v. St. Joseph Mercy Oakland, No. 12-cv-12567
(E.D. Mich, filed Feb. 15, 2013), ECF No. 22 at Pg ID 195;
Appellee Br., id., No. 13-2335 (6th Cir. April 9,
2014), ECF No. 33 at Pg ID 69. In short, the Sixth Circuit in
Loyd was not presented with and did not decide
whether Michigan's Peer Review Privilege is applicable in
federal question cases. Thus, Magistrate Judge Grand
committed no error in concluding that the Sixth Circuit's
decision lacked binding precedential value.
Magistrate Judge Grand correctly held, "[q]uestions of
privilege are to be determined by federal common law in
federal question cases." Reed v. Baxter, 134
F.3d 351, 355 (6th Cir. 1998) (citing Fed.R.Evid. 501).
Federal courts have nearly uniformly declined to create a
federal peer review privilege. See, e.g., Grabow v. Cty.
of Macomb, No. 12-cv-10105, 2013 WL 3354505, at *6 (E.D.
Mich. July 3, 2013) ("The overwhelming majority of
federal courts agree that there is not a federal common law
peer review privilege."); Zamorano v. Wayne State
Univ., No. 07-cv-12943, 2008 WL 2067005, at *5 (E.D.
Mich. May 15, 2008) ("Notably, every federal court of
appeals that has addressed the issue for purposes of federal
common law has determined that there is no 'federal'
peer review privilege."). The Supreme Court has
recognized that Federal Rule of Evidence 501 "authorizes
federal courts to define new privileges, " but cautioned
that any such undertaking must "start with the
fundamental maxim that the public ... has a right to every
man's evidence." Jaffee v. Redmond, 518
U.S. 1, 9(1996).
out-of-district cases CCS cites in its objections do not
convince this Court that Magistrate Judge Grand erred in his
decision. The District Court for the Northern District of
Illinois in Cornejo v. Mercy Hospital and Medical
Center, No. 12-cv-1675, 2014 WL 4817806 (Sept. 15,
2014), did not analyze whether the state's peer review
privilege was applicable to a federal claim as the case
involved a personal injury/medical malpractice claim, albeit
under the Federal Tort Claims Act. Id. at * 1. State
law provides the rule of decision for such a claim. 28 U.S.C.
§ 2674; Ward v. United States, 838 F.2d 182,
184 (6th Cir. 1998) ("The liability of the United States
in actions under the Federal Tort Claims Act is governed by
the law of the place where the alleged tort occurred.").
court in Elkharwily v. Mayo Holding Co., No.
12-cv-3062, 2014 WL 3573674 (D. Minn. July 21, 2014),
premised its discussion of the application of the peer review
privilege with the statement: "Where, as here, a
plaintiff alleges claims under both federal and state law, it
is within the court's discretion to apply the state peer
review privilege statute." Id. at *3.
Similarly, the court in Nelson v. Green, No.
06-cv-70, 2014 WL 2695535 (W.D. Va. June 12, 2014), based its
holding on the fact that "the remaining claim in th[e]
case [wa]s a state law claim before the [c]ourt under pendent
jurisdiction." Id. at *2. The Sixth Circuit has
held, however, that in a federal question case with pendent
state claims, the court must apply the federal law of
privilege. Hancock v. Dodson, 958 F.2d 1367, 1373
(1992) ("Since the instant case is a federal question
case by virtue of the appellant's section 1983 claim, we
hold that the existence of pendent state law claims does not
relieve us of our obligation to apply the federal law of
the Court is unpersuaded by the reasoning in Hadix v.
Caruso, No. 92-cv-110, 2006 WL 2925270 (W.D. Mich. Oct.
6, 2006). As one district court stated in rejecting
Hadix, the decision "drew upon dicta from a
gigantic footnote in United States v. Michigan, 940
F.2d 143, 161-166 & n.12 (6th Cir. 1991), ... and
"cited no precedent except for Bredice v. Doctors
Hospital, Inc., 50 F.R.D. 249, 250-51 (D.D.C. 1970), a
thirty-seven year old district court case that... itself
cited only a single source of authority." Jenkins v.
DeKalb Cty., Ga., 242 F.R.D. 652, 660 (N.D.Ga. 2007).
concluded that Magistrate Judge Grand did not err in
declining to apply Michigan's Peer Review Privilege in
this § 1983 action, the Court turns to CCS' request
for certification of the issue to the Sixth Circuit for
interlocutory review under 28 U.S.C. § 1292(b). Section
1292(b) allows a district court to certify an issue for
immediate appeal if the court is "of the opinion that
such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation ...."
28 U.S.C. § 1292(b). As explained above, there is not a
substantial ground for difference of opinion on the question
of whether a state's peer review privilege applies in a
§ 1983 action. Federal courts have nearly uniformly
declined to create a federal peer review privilege. Moreover,
immediate appeal will not materially advance the ultimate
termination of this litigation.
these reasons, the Court rejects CCS' objections to
Magistrate Judge Grand's August 22, 2017 Order and
AFFIRMS the decision.