Fassihi v. St. Mary Hosp. of Livonia

• Decision Date: 07 January 1983
• Docket Number: Docket No. 57519
• Citation: 121 Mich.App. 11,328 N.W.2d 132
• Parties: Mahmood FASSIHI, M.D., Plaintiff-Appellee, v. ST. MARY HOSPITAL OF LIVONIA, a Michigan non-profit corporation, Sister Mary Calasantia, Executive Director of, as well as a member of the Board of Trustees of St. Mary Hospital of Livonia, a Michigan non-profit corporation, and Jacob Sobieraj, Dr. John Shuey, Dr. Fred Davids, Sister Mary Cammille, Mr. Donald Dicomo, Mr. Henry Sonagere, Sister Mary Tenetta, Sister Mary Avila, Rita Radzialowski, Dr. Harry Tarpinian, Mrs. Benedict Stahl, Sister Mary Consuela, Sister Mary Carmeline, Sister Mary Serra, Sister Mary Emelita, Sister Mary Modesta, Bernard J. Keraney, Dr. Malcomb Delaney, Mother Mary Clarentine, Sister Mary Euphemia, Sister Mary Dennis, Sister Mary Cynthia and Sister Mary Columbine (and later) Mother Mary Columbine, all members of the Board of Trustees of St. Mary Hospital, Jointly and Severally, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 132

328 N.W.2d 132

121 Mich.App. 11

Mahmood FASSIHI, M.D., Plaintiff-Appellee, v. ST. MARY HOSPITAL OF LIVONIA, a Michigan non-profit

corporation, Sister Mary Calasantia, Executive Director of,

as well as a member of the Board of Trustees of St. Mary

Hospital of Livonia, a Michigan non-profit corporation, and

Jacob Sobieraj, Dr. John Shuey, Dr. Fred Davids, Sister Mary

Cammille, Mr. Donald Dicomo, Mr. Henry Sonagere, Sister Mary

Tenetta, Sister Mary Avila, Rita Radzialowski, Dr. Harry

Tarpinian, Mrs. Benedict Stahl, Sister Mary Consuela, Sister

Mary Carmeline, Sister Mary Serra, Sister Mary Emelita,

Sister Mary Modesta, Bernard J. Keraney, Dr. Malcomb

Delaney, Mother Mary Clarentine, Sister Mary Euphemia,

Sister Mary Dennis, Sister Mary Cynthia and Sister Mary

Columbine (and later) Mother Mary Columbine, all members of

the Board of Trustees of St. Mary Hospital, Jointly and

Severally, Defendants-Appellants.

Docket No. 57519.

Court of Appeals of Michigan.

Submitted July 12, 1982.

Decided Nov. 2, 1982.

Released for Publication Jan. 7, 1983.

Bushnell, Gage, Doctoroff & Reizen (by Noel A. Gage and Barbara A. Roulo), Southfield, for plaintiff-appellee.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. (by Gregory G. Drutchas and Stephen M. Kelley), Detroit, for defendants-appellants.

Before T.M. BURNS, P.J., and BEASLEY and SIMON, ^* JJ.

T.M. BURNS, Presiding Judge.

Defendants appeal two orders entered by the lower court by leave granted.

Plaintiff sued defendants in November, 1977, seeking damages for wrongful termination of hospital staff privileges. In a separate action, plaintiff sued a Dr. Lopez, the man who had fired him. Before that case was settled, plaintiff deposed defendant Sister Mary Calasantia who was then the hospital's executive director and a member of the Board of Trustees. Although a defendant in this suit, Sister Mary Calasantia was not a party to the suit in which she had been deposed.

On November 6, 1978, plaintiff noticed his intention to depose Sister Mary Calasantia. However, she was (and still is) seriously ill and unable to be deposed. On December 14, 1979, the trial court entered an order allowing plaintiff to use her deposition from the prior action. This is the first order that defendants are appealing.

Depositions may be admissible as long as admitted under the rules of evidence. Kueppers v. Chrysler Corp., 108 Mich.App. 192, 205, 310 N.W.2d 327, 332 (1981), GCR 1963, 302.4. The party seeking admission bears the burden under this court rule. Valley National Bank of Arizona v. Kline, 108 Mich.App. 133, 141, 310 N.W.2d 301, 305 (1981). Allowing in such evidence is within the trial judge's discretion. Socha v. Passino, 405 Mich. 458, 275 N.W.2d 243 (1979).

We rule that the trial judge did not abuse his discretion--the deposition may be used as an admission. MRE 801(d)(2). Admissions have been defined as "statements made by or on behalf of a party to the suit in which they are offered which contradict some position assumed by that party in that suit". Elliotte v. Lavier, 299 Mich. 353, 357, 300 N.W. 116 (1941). Sister Mary Calasantia is a party in the suit and the deposition is being offered to contradict her position. Therefore, the deposition may be properly admitted as evidence against her for so long as she remains in the suit. However, merely because an admission is admissible against one party does not necessarily mean that it is admissible against all others as substantive evidence. Smith v. Woronoff, 75 Mich.App. 24, 254 N.W.2d 637 (1977), lv. den. sub nom. Smith v. Love, 402 Mich. 902 (1978); Ghezzi v. Holly, 22 Mich.App. 157, 177 N.W.2d 247 (1970). Yet, such statements are allowed as admissions against the other parties in the suit if an agency relationship existed among them when the statement was made. MRE 801(d)(2)(D). We note that Sister Mary Calasantia was the hospital's president at the time the deposition was taken. As such, her deposition is also admissible against the defendant hospital. We leave up to the trial judge whether or not the sufficient agency relationship existed among Sister Mary Calasantia and the other 23 defendants. If so, the deposition is admissible against all defendants as substantive evidence in this case. Otherwise, it is admissible against only defendant Sister Mary Calasantia and defendant hospital.

Defendants also appeal the trial judge's order denying discovery of plaintiff's income tax returns. Generally, a party's income tax returns are subject to discovery. McLaren v. Zeilinger, 103 Mich.App. 22, 302 N.W.2d 583 (1981). But this case is more complicated because plaintiff has been filing joint income tax returns with his wife. He is now arguing that the returns should not be subject to discovery because his wife has never been a party to this action. The dilemma is rather obvious. On the one hand, we have a strong historical commitment to far-reaching and open discovery. Daniels v. Allen Industries, Inc., 391 Mich. 398, 216 N.W.2d 762 (1974). In fact, "[t]he modern tendency is to broaden the scope of discovery when necessary to facilitate preparation, guard against surprise and expedite justice". State ex rel Von Hoffman Press, Inc. v. Saitz, 607 S.W.2d 219, 222 (Mo.App., 1980). On the other hand, plaintiff's wife's income tax returns are confidential under certain circumstances. See 26 U.S.C. Sec. 6103. She has not waived this confidentiality by entering the suit. One reason behind this confidentiality is "to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes". Webb v. Standard Oil Co. of California, 49 Cal.2d 509, 513, 319 P.2d 621, 624 (1957). We note that courts across this country have differed on this particular issue. On the one hand, State ex rel Boswell v. Curtis, ...