EDWARD BIELASKA V UNIVERSITY OF MICH REGENTS
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STATE OF MICHIGAN
COURT OF APPEALS
EDWARD BIELASKA and CLAUDIA
BIELASKA,
UNPUBLISHED
February 9, 2001
Plaintiffs-Appellants,
v
No. 215286
Wayne Circuit Court
LC No. 96-614421-NM
LINDA ORLEY, LAURA ORLEY, and
WILLIAM ORLEY,
Defendants,
and
KAREN SCHULTE, FAMILY CONSULTATION
& TREATMENT SERVICES, INC., KATHLEEN
COULBORN FALLER, JANE MILDRED, and
ELLEN DEVOE,
Defendants-Appellees.
EDWARD BIELASKA and CLAUDIA
BIELASKA,
Plaintiffs-Appellants,
v
BOARD OF REGENTS OF THE UNIVERSITY
OF MICHIGAN, and UNIVERSITY OF
MICHIGAN SCHOOL OF SOCIAL WORK, d/b/a
UNIVERSITY OF MICHIGAN
INTERDISCIPLINARY PROJECT ON CHILD
ABUSE & NEGLECT, d/b/a FAMILY
ASSESSMENT CLINIC,
Defendants-Appellees.
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No. 215287
Court of Claims
LC No. 96-016160-CM
Before: Smolenski, P.J., and Holbrook, Jr. and Gage, JJ.
PER CURIAM.
Plaintiffs filed suit against defendants alleging several causes of action, including gross
negligence, intentional infliction of emotional distress, defamation, fraud, civil rights violations,
and bad faith. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7),
alleging that they were entitled to immunity, and pursuant to MCR 2.116(C)(8), alleging that they
owed no recognized legal duties to plaintiffs.1 On October 3, 1997, the trial court granted
summary disposition to defendants Faller, Mildred, DeVoe, and their employer, the University of
Michigan’s Family Assessment Clinic, pursuant to both MCR 2.116(C)(7) and (C)(8). On
November 7, 1997, the trial court granted summary disposition to defendant Schulte and her
employer, Family Consultation and Treatment Services, on the same grounds. Plaintiffs appeal
those orders by leave granted. We affirm.
First, defendants Faller, Mildred, DeVoe and the University of Michigan (hereafter the
FAC defendants) argue that this Court does not have jurisdiction over plaintiffs’ appeal. We
disagree. The trial court granted summary disposition to these defendants on October 3, 1997.
Plaintiffs filed a claim of appeal in this Court on October 15, 1997, in Docket No 206834. The
claim of appeal was dismissed on March 27, 1998, for lack of jurisdiction because the order
dated October 3, 1997, was not a final order. Plaintiffs filed a delayed application for leave to
appeal on October 23, 1998. Defendants argue that this Court lacks jurisdiction to hear the
appeal because plaintiffs filed the delayed application for leave to appeal more than twelve
months after the entry of the circuit court order being appealed. This argument has no merit
because the twelve month time period for filing a delayed application for leave to appeal
provided under MCR 7.205(F)(3) was tolled during the time that appellate proceedings
connected with the order at issue were pending in this Court. People v Kincade (On Remand),
206 Mich App 477, 483; 522 NW2d 880 (1994).
In addition to rejecting the jurisdictional challenge, we reject plaintiffs’ argument that
defendants were not entitled to summary disposition on the ground of witness immunity. The
FAC defendants were involved as expert witnesses in a previous child custody case wherein the
mother of plaintiff Edward Bielaska’s children accused Edward of sexually abusing them.
Pursuant to a trial court order, the FAC defendants conducted an evaluation of the case and
reached the conclusion that Edward had sexually abused the children. When the trial court later
quashed the order appointing the FAC defendants to conduct the independent evaluation, the
children’s mother used the FAC defendants as her experts at trial. The FAC defendants’
evaluations and testimony were taken into account at the custody trial.
Defendant Schulte became involved in the underlying custody case when, while the
custody case was pending, the children’s mother asked Schulte to evaluate and treat the children
1
The civil rights claims were dismissed by plaintiffs before the motions for summary disposition
were heard.
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for sexual abuse. Schulte did so, and later served as an expert witness at trial, testifying about
her evaluation and her conclusion that Edward had abused the children. Like the FAC
defendants, Schulte’s evaluation was taken into account by the trial court when deciding the
custody issue. Ultimately, the trial court determined that Edward had sexually abused both
children and awarded custody to the children’s mother.
Plaintiffs filed the instant suit against defendants while pursuing an appeal from the
underlying custody matter. In Bielaska v Orley, unpublished opinion per curiam of the Court of
Appeals, issued July 19, 1996 (Docket Nos. 173666, 174949, 175287, 175388), this Court held
that the trial court’s finding of sexual abuse by Edward was against the great weight of the
evidence, and we reversed the trial court’s decision granting custody of the children to their
mother. On remand, the trial court awarded Edward custody of both children and prohibited the
children’s mother from seeing them.
In the instant case, we must decide whether defendants were entitled to summary
disposition on the ground of witness immunity. Summary disposition may be granted under
MCR 2.116(C)(7) if:
[t]he claim is barred because of release, payment, prior judgment, immunity
granted by law, statute of limitations, statute of frauds, an agreement to arbitrate,
infancy or other disability of the moving party, or assignment or other disposition
of the claim before commencement of the action.
In Maiden v Rozwood, 461 Mich 109, 133-134; 597 NW2d 817 (1999), which was
decided after the parties to the instant case filed their briefs on appeal, the Court discussed the
issue of witness immunity. In Maiden’s companion case, Reno v Chung, 461 Mich 116, the
plaintiff found his wife and daughter brutally stabbed. Before the plaintiff’s daughter died, she
spoke to the plaintiff and told him who had attacked her. The plaintiff relayed this information to
police. Id. The medical examiner, who performed a subsequent autopsy, opined that the
plaintiff’s daughter could not have spoken after being stabbed. Id. On the basis of that opinion,
the plaintiff was arrested for murdering his wife and daughter and was bound over for trial. Id.
At the preliminary examination, the medical examiner testified that the plaintiff’s daughter could
not possibly have identified another person as the attacker. Id. Later, the medical examiner’s
opinions were found to be grossly incompetent and the charges against the plaintiff were
dismissed. Id. at 117, 128-129. The plaintiff sued the medical examiner and others, alleging
gross negligence. Id. at 117.
Our Supreme Court affirmed dismissal of the civil action, finding that summary
disposition was warranted under MCR 2.116(C)(7) and (8). Id. at 118. In that opinion, the Court
explained the scope of the witness immunity doctrine in Michigan. The Court stated:
[W]itnesses who testify during the course of judicial proceedings enjoy
quasi-judicial immunity. This immunity is available to those serving in a quasijudicial adjudicative capacity as well as “those persons other than judges without
whom the judicial process could not function.” Witnesses who are an integral part
of the judicial process “are wholly immune from liability for the consequences of
their testimony or related evaluations.” Statements made during the course of
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judicial proceedings are absolutely privileged, provided they are relevant,
material, or pertinent to the issue being tried. Falsity or malice on the part of the
witness does not abrogate the privilege. The privilege should be liberally
construed so that participants in judicial proceedings are free to express
themselves without fear of retaliation. As this Court [previously] noted:
“Witness immunity is also grounded in the need of the judicial system for
testimony from witnesses who, taking their oaths, are free of concern that they
themselves will be targeted by the loser for further litigation. Absent perjury of a
character requiring action by the prosecuting attorney, the testimony of a witness
is to be weighed by the factfinder in the matter at bar, not by a subsequent jury
summoned to determine whether the first lawsuit was tainted . . . .” [Id. at 133134 (citations omitted), (emphasis added).]
The Court specifically rejected the plaintiff’s argument that witness immunity was
unavailable because the subject of his lawsuit was the autopsy and murder investigations, as
opposed to the trial testimony. Id. at 134. The Court stated that the gravamen of a plaintiff’s
action is determined by considering the entire claim, and that the plaintiff could not “avoid the
protection of witness immunity by artful pleading.” Id. at 134-135.
In Couch v Schultz, 193 Mich App 292, 294-295; 483 NW2d 684 (1992), this Court
determined that witness immunity was not limited to “in court” testimony:
It is well settled in Michigan that statements made during the course of
legislative proceedings, statements made during the course of judicial
proceedings, and communications by military and naval officers are absolutely
privileged. “Judicial proceedings” may include any hearing before a tribunal or
administrative board that performs a judicial function. An absolutely privileged
communication is one for which no remedy is provided for damages in a
defamation action because of the occasion on which the communication is made.
A privileged occasion is an occasion where the public good requires that a person
be freed from liability for the publication of a statement that would otherwise be
defamatory. Public policy is the principle underlying the doctrine of absolute
privilege.
If absolute privilege applies, there can be no action for defamation. The
question whether a privilege attaches is a question of law for the trial court.
In this case, we are concerned with the absolute privilege for statements
made during the course of judicial proceedings. Statements made by witnesses
during the course of such proceedings are absolutely privileged, provided they are
relevant, material, or pertinent to the issue being tried. The immunity extends to
every step of the proceeding and covers anything that may be said in relation to
the matter at issue, including pleadings and affidavits. The judicial proceedings
privilege should be liberally construed so that participants in judicial proceedings
are free to express themselves without fear of retaliation. [(Citations omitted),
(emphasis added).]
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This Court has also previously ruled that social workers play an important part in the
judicial process where the safety and welfare of children are concerned, and are entitled to
absolute immunity. Martin v Children’s Aid Society, 215 Mich App 88, 96-97; 544 NW2d 651
(1996). In that case, the plaintiffs sued the Department of Social Services and numerous other
defendants, including the Children’s Aid Society, after the plaintiffs were falsely accused of
physically abusing their thirteen-week-old daughter and were separated from her for numerous
years. The plaintiffs alleged several claims, including negligence, breach of statutory and
contractual duties, bad faith, and violation of their constitutional rights. Id. at 93. This Court
ruled that summary disposition was appropriate for the defendants on immunity grounds, Id. at
94-95, and adopted the proposition that absolute immunity exists for social workers involved in
probate proceedings. Id. at 97. In reaching that decision, this Court found the following
argument persuasive:
Professional assistance to the Probate Court is critical to its ability to make
informed, life deciding judgments relating to its continuing jurisdiction over
abused children. Its advisors and agents cannot be subject to potential suits by
persons, aggrieved by the Court’s decision vindictively seeking revenge against
the Court’s assistant as surrogates for the jurist. Faced with such liability, the
social worker would naturally tend to act cautiously and refrain from making
difficult decisions, delay in intervening to protect the child, avoid confronting the
aggressive parent with the necessity of changing his attitudes and seeking
psychiatric help to do so. Such an atmosphere defeats the function of the
continuing jurisdiction of the Probate Court in the abstract, and in reality poses the
potential for death for an abused child who is not protected because the social
worker exercised excessive caution in arriving at a judgment as to whether there is
sufficient evidence of abuse to merit action on his or her part.
Mere qualified immunity is not enough protection to prevent the chilling
effect of a potential suit on the exercise of a social worker’s professional
judgment and discretion in operating as an arm of the Probate Court to protect
abused children. [Id. at 97-98.]
Although Martin addressed social workers in the context of child welfare proceedings in
probate court, it conferred absolute immunity because it recognized that there is a strong public
policy interest in providing expert witnesses with absolute immunity in cases where allegations
of abuse are made. The public policy concerns articulated in Martin are equally applicable in
child custody cases where allegations of abuse have been made and social workers have
evaluated those claims and rendered professional assistance to the trial court in deciding the best
interests of children.
The instant case falls squarely within the immunity principles previously articulated by
our courts. During an acrimonious custody case, the defendants at issue were called upon to
evaluate the situation and reach conclusions. They subsequently testified about their evaluations
and conclusions in order to assist the trial court in determining the best interests of the children.
While the defendants’ evaluations may have been deficient, defendants are entitled to absolute
witness immunity as described in Maiden, supra at 133-134, and Couch, supra at 294-295. A
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finding of immunity for defendants comports with the articulated scope of witness immunity in
Michigan and with the public policies expressed in Martin, supra. A separate cause of action
based on deficiencies in the experts’ evaluations would not serve the public policies of allowing
witnesses freedom to render opinions and testify at trial and of providing our courts with
professional assistance in determining the best interests of the children of this State.
The FAC defendants only became involved in the underlying custody case as independent
evaluators on order of the trial court. Their purpose was to provide the trial court with
information to assist it in determining the best interests of the children. Their evaluations and
testimony were relevant, material and pertinent to the custody issue being litigated and are clearly
protected under the cloak of witness immunity. Maiden, supra. The fact that the FAC was later
dropped by the court as an independent evaluator and used by the children’s mother as her expert
witness does not alter the outcome. All of the work which the FAC defendants performed was
done for purposes of the custody case and was an integral part of the judicial proceedings.
Although Schulte and her employer, Family Consultation & Treatment Services, are in a
slightly different position than the FAC defendants, they too are entitled to immunity from
plaintiffs’ suit. Schulte became involved in the custody case only after the children’s mother
sought Schulte out to evaluate and counsel the children for sexual abuse. Schulte was not a court
appointed witness. However, when she was retained, the issue of custody was already being
litigated in the trial court and one of the three allegations of sexual abuse had already been made.
Schulte evaluated the children and was called upon to render expert testimony about her
evaluation and conclusions to the trial court. Her conclusions were subject to extensive cross
examination at the custody trial. Her trial testimony was based on her evaluation and, as such,
her evaluation was an integral part of the judicial proceedings and was relevant, material and
pertinent to the custody matter.
While plaintiffs do not dispute that Schulte’s trial testimony was protected by immunity,
they make the disingenuous argument that everything leading up to her trial testimony was
unprotected by the witness privilege. This conclusion is contrary to current law. Maiden, supra.
Schulte’s relationship with the children involved two phases: evaluation and treatment. A
review of the pleadings in this case reveals that plaintiffs’ allegations do not focus on Schulte’s
treatment of the children2 and it does not appear that plaintiffs sustained any damages or are
claiming any damages as the result of any treatment Schulte rendered to the children. Schulte’s
evaluation forms the basis of the causes of action alleged and, as previously noted, that
evaluation was a necessary predicate to her testimony and was relevant, material and pertinent to
the issue of what was in the best interests of the children. Schulte, like the FAC defendants, is
therefore entitled to witness immunity. Plaintiffs’ artful attempt to plead and argue around
witness immunity fails like the plaintiff’s argument in Reno, supra.
2
Plaintiffs did plead that defendants were grossly negligent in refusing to incorporate plaintiffs in
the process of assessment, evaluation, diagnosis, treatment or prognosis. This is not an allegation
of deficient treatment but rather is simply an allegation that defendants failed to include plaintiffs
in the process, which complaint is part and parcel of plaintiffs’ criticism of the evaluations,
which were testified about at trial and called into question at that time.
-6-
We also find that defendants’ immunity extends to all of the claims alleged by plaintiffs.
In Michigan, courts have applied witness immunity to defamation actions, Couch, supra at 293294, negligence actions, Maiden, supra at 133-134, false imprisonment and battery actions,
Dabkowski v Davis, 364 Mich 429, 432-433; 111 NW2d 68 (1961), and tortious interference
actions, Meyer v Hubbell, 117 Mich App 699, 710-711; 324 NW2d 139 (1982).
Finally, plaintiffs argue that summary disposition pursuant to MCR 2.116(C)(8) was
inappropriate because defendants owed them a duty when evaluating the children. We need not
address this issue because we find that immunity bars the causes of action alleged against
plaintiffs. Moreover, we note that, while plaintiffs set forth law with regard to finding a duty,
they completely fail to apply that law to the facts of their case. They simply restated general
legal principles and then make the following, conclusory statement:
A fair reading of Plaintiff/Appellants’ complaint as well as a rational
understanding of “duty” as it has been described by this Court and the Michigan
Supreme Court finds adequate support for the very duties these Defendants seek
to avoid.
The complaints against defendants do not set forth any specific duties, but simply allege that
defendants owed clearly cognizable duties. Because plaintiffs leave this Court to guess at the
duties they are trying to establish and to analyze whether those duties are recognized, we decline
to review this issue. “An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for his claims.” People v Kelly, 231 Mich App 627,
640-641; 588 NW2d 480 (1998). We note, however, that an expert witness does not owe any
duty to an adverse party. Maiden, supra.
Affirmed.
/s/ Michael R. Smolenski
/s/ Donald E. Holbrook, Jr.
/s/ Hilda R. Gage
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