Rose Mezu v. Morgan State University

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2396

ROSE URE MEZU,

Plaintiff,

v.

MORGAN STATE UNIVERSITY; ARMADA W. GRANT, in her personal
capacity and as Director, Human Resources/Payroll for Morgan
State University; DOLAN HUBBARD, in his personal capacity
and as Chair, Department of English and Language Arts,
Morgan State University,

Defendants - Appellees,

and

OLACHI MEZU, Doctor,

Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:09-cv-02855-WMN)

Submitted: August 28, 2012 Decided: September 14, 2012

Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

C. Valerie Ibe, LAW OFFICE OF C. VALERIE IBE, West Hills,
California, for Appellant. Douglas F. Gansler, Attorney General
of Maryland, William F. Brockman, Acting Solicitor General,
Sally L. Swann, Assistant Attorney General, Baltimore, Maryland,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Dr. Olachi Mezu (“Dr. Mezu”), a non-party to the

underlying litigation, appeals the district court’s order

overruling her objections to the magistrate judge’s discovery

order. Rose Ure Mezu, Ph.D. (“Plaintiff”) brought the ongoing

employment discrimination suit against her employer, Morgan

State University, and two of its administrators (“Defendants”),

alleging interference with her right to take leave under the

Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, to care for

her adult daughter, Dr. Mezu, following emergency brain surgery.

On August 13, 2009, the day that Dr. Mezu was

discharged from the hospital, Plaintiff applied for FMLA leave

to care for Dr. Mezu for the period of August 31, 2009 to

October 2, 2009, attaching a medical certificate completed by

Dr. Mezu’s neurosurgeon, as required by the FMLA. Thereafter,

Plaintiff applied to extend the period of FMLA leave until

December 4, 2009. On September 18, 2009, Defendants notified

Plaintiff that the medical certificate she had submitted was

inadequate to support her leave request, and the physician who

had completed the certificate was not responding to requests for

additional information. On November 13, 2009, Defendants

notified Plaintiff that her request for paid sick leave was

denied and she would be placed on unpaid leave, effective

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immediately, until she provided the necessary medical

documentation.

Thereafter, Plaintiff initiated the underlying

lawsuit, asserting employment discrimination claims related to

the denial of her FMLA leave request. To present its defense

that Plaintiff was not entitled to leave under the FMLA,

Defendants subpoenaed the Johns Hopkins Custodian of Records for

additional medical records related to Dr. Mezu’s care. Dr. Mezu

filed a motion to quash the subpoena, asserting her privacy

interests in the medical records. Following a hearing, the

magistrate judge denied the motion to quash without prejudice,

finding that, although “[t]he medical records sought by

Defendant[s] are within the broad scope of discovery as defined

by Fed. R. Civ. P. 26(b),” Defendants failed to make the

requisite showing of necessity for the records. However, the

magistrate judge provided Defendants an opportunity to

demonstrate need for the subpoenaed records by “provid[ing] an

affidavit from a qualified medical professional demonstrating

that the records provided to date are insufficient to determine

the need for FMLA leave.”

Defendants subsequently submitted an affidavit from

neurosurgeon Dr. James Conway, who reviewed the medical records

previously produced by Plaintiff, stating that the records were

“entirely inadequate” to establish whether Dr. Mezu was

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incapable of self-care during the period that Plaintiff took

leave. Plaintiff and Dr. Mezu both moved to strike Dr. Conway’s

affidavit. The magistrate judge denied the motions to strike,

finding that “[n]either Plaintiff nor Dr. Mezu presents a non-

frivolous reason for striking Dr. Conway’s affidavit.”

Additionally, the magistrate judge denied Dr. Mezu’s motion to

quash the subpoena, reasoning that “Dr. Mezu’s additional

medical records remain significant to issues in this case, her

privacy rights in these documents will be protected through

implementation of a Confidentiality Order governing the records,

and production of the documents cannot be said to be

‘excessively burdensome or expensive.’” Thereafter, both

Plaintiff and Dr. Mezu filed objections to the magistrate

judge’s discovery ruling.

Dr. Mezu appealed the district court’s subsequent

order overruling her objections, arguing that: (1) her medical

records are confidential and protected from disclosure under

federal law; (2) her medical records have no legal relevance to

the underlying case; and (3) any hypothetical relevance does

not outweigh the harm caused. In response, Defendants question

whether this court has jurisdiction to review the discovery

order at issue, emphasizing that appellate courts seldom

exercise jurisdiction to review discovery orders in an

interlocutory posture. Defendants further assert that the

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district court did not abuse its discretion by refusing to quash

the subpoena for Dr. Mezu’s medical records, contending that the

records are properly within the scope of discovery and the

district court gave appropriate consideration to the

confidential nature of the records and the terms under which

they would be exposed.

We first address the issue of jurisdiction. This

court may exercise jurisdiction only over final decisions, 28

U.S.C. § 1291 (2006), and certain interlocutory and collateral

orders. 28 U.S.C. § 1292 (2006); Fed R. Civ. P. 54(b); Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). A final

decision is one that “ends the litigation on the merits and

leaves nothing for the court to do but execute the

judgment.” Caitlin v. United States, 324 U.S. 229, 233 (1945).

“Discovery orders generally do not meet this requirement”

because “they are necessarily only a stage in the litigation and

almost invariably involve no determination of the substantive

rights involved in the action.” MDK, Inc. v. Mike’s Train

House, Inc., 27 F.3d 116, 119 (4th Cir. 1994) (internal

quotation marks and citations omitted); see also Church of

Scientology v. United States, 506 U.S. 9, 18 n.11 (1992) (“As a

general rule, a district court’s order enforcing a discovery

request is not a ‘final order’ subject to appellate review.”).

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 However, this court has recognized the so-

called Perlman doctrine announced by the Supreme Court

in Perlman v. United States, 247 U.S. 7, 13 (1918), as

conferring appellate jurisdiction for certain discovery orders.

The Perlman doctrine provides that “a discovery order directed

at a disinterested third party is treated as an immediately

appealable final order because the third party presumably lacks

a sufficient stake in the proceeding to risk contempt by

refusing compliance.” Church of Scientology, 506 U.S. at 18

n.11; see also United States v. Meyers, 593 F.3d 338, 345 (4th

Cir. 2010) (discussing Perlman doctrine). In this case,

Defendants subpoenaed the Johns Hopkins Custodian of Records, a

disinterested third party that has already produced several of

Dr. Mezu’s medical records and would presumably not risk a

citation for contempt in order to secure for Dr. Mezu an

opportunity for judicial review. Accordingly, appellate

jurisdiction to review the discovery order exists under

the Perlman doctrine.

We now address Dr. Mezu’s arguments with respect to

the merits of the discovery order. “This [c]ourt affords a

district court substantial discretion in managing

discovery,” LoneStar Steakhouse & Saloon, Inc. v. Alpha of Va.,

Inc., 43 F.3d 922, 929 (4th Cir. 1995), and therefore “review[s]

a district court’s discovery orders for abuse of

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discretion.” Carefirst of Md., Inc. v. Carefirst Pregnancy

Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). An abuse of

discretion occurs when the district court’s decision is “guided

by erroneous legal principles” or “rests upon a clearly

erroneous factual finding.” Westberry v. Gislaved Gummi AB, 178

F.3d 257, 261 (4th Cir. 1999). Reversal is required if this

court “has a definite and firm conviction that the court below

committed a clear error of judgment in the conclusion it reached

upon a weighing of the relevant factors.” Id.

On appeal, Dr. Mezu emphasizes that her medical

records are private and confidential, maintaining that

disclosure should have been denied because her privacy concerns

outweigh Defendants’ interests in the information. Dr. Mezu

correctly notes that the Health Insurance Portability and

Accountability Act of 1996 (“HIPAA”), 42 U.S.C. §§ 1320d-1320d-

9, provides protections against disclosure of medical records.

However, HIPAA also permits release of such records “in response

to a subpoena, discovery request, or other lawful process.” 45

C.F.R. § 164.512(e)(1)(ii). The magistrate judge appreciated

the confidential and private nature of Dr. Mezu’s records,

requiring Defendants to submit an expert affidavit to show need

for the medical records before ruling on Dr. Mezu’s motion to

quash. Moreover, the magistrate judge issued a “Confidentiality

Order” designating Dr. Mezu’s subpoenaed medical records as

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confidential, requiring the records to be filed under seal,

limiting the individuals able to review the records to counsel,

experts employed by the parties, and one designated client

representative, and prohibiting photocopying or dissemination of

the records. Accordingly, Dr. Mezu’s privacy arguments with

respect to the magistrate judge’s discovery order are not

compelling.

Dr. Mezu also asserts that her medical records “simply

have no relevance to any of the claims in [Plaintiff’s] lawsuit”

and are “totally irrelevant to any dispute between Plaintiff and

[her employer].” Dr. Mezu insists that “[o]ther medical records

not shared with the employee, which the employee would not have

had the training to evaluate, have no possible relevance” to

Plaintiff’s FMLA interference claim because “[a]s long as the

doctors told the employee that [Dr. Mezu] needed care, it would

be irrelevant even if the records showed that these physicians

were wrong or even, for some reasons, lying.” Dr. Mezu further

contends that the FMLA “does not allow retroactive attacks on

physicians’ judgments” when an employer fails to seek a second

opinion at the time of the leave request.

Contrary to Dr. Mezu’s assertions, the magistrate

judge and the district court properly found that her medical

records are relevant to the underlying lawsuit. Plaintiff

alleged that her employer interfered with her right to leave

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under the FMLA. To prevail on this claim, Plaintiff “bears the

burden of proof in establishing that [she] is entitled to the

benefit at issue under the statute.” Yashenko v. Harrah’s NC

Casino Co., LLC, 446 F.3d 541, 549 (4th Cir. 2006). To do so,

Plaintiff must prove that her daughter was “18 years of age or

older and incapable of self-care because of a mental or physical

disability.” 29 U.S.C.A. § 2611(12); see also Rhoads v. Fed.

Deposit Ins. Corp., 357 F.3d 373, 384 (4th Cir. 2001) (to state

FMLA interference claim, plaintiff must establish that employee

or applicable relative “was afflicted with an FMLA-qualifying

condition, because otherwise she did not have any right under

the Act with which her employer could have interfered.”).

Federal Rule of Civil Procedure 26(b)(1) permits discovery of

“nonprivileged matter that is relevant to any party’s claim or

defense.” In defense, Defendants have asserted that Dr. Mezu

was not “incapable of self-care” and, therefore, Plaintiff was

not entitled to FMLA leave. Accordingly, Dr. Mezu’s medical

records are, in fact, relevant to the underlying lawsuit.

Moreover, Dr. Mezu’s claim that Defendants waived the

right to challenge whether she was incapable of self-care by

failing to seek a second opinion at the time Plaintiff requested

leave has been foreclosed by Fourth Circuit precedent. We

previously addressed whether an employer waives the right to

contest an employee’s “qualifying health condition” under the

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FMLA by failing to seek a second opinion under the statute

in Rhoads v. Fed. Deposit Ins. Corp., 357 F.3d 373, 385 (4th

Cir. 2001), holding that the FMLA “does not require an employer

to obtain a second opinion or else waive any future opportunity

to contest the validity of the certification.” In reaching this

conclusion, we emphasized, “The FMLA provides only that an

employer ‘may’ seek a second, or third, opinion if it questions

the validity of an employee’s proffered medical certification of

her condition.” Id. at 386. Therefore, “the plain language of

the Act does not suggest that an employer must pursue these

[second opinion] procedures or be forever foreclosed from

challenging whether an employee suffered from a serious health

condition; and nothing in the legislative history of the FMLA

explicitly supports that interpretation.” Id.

Accordingly, we conclude that the district court did

not abuse its discretion in overruling Dr. Mezu’s objections to

the magistrate judge’s discovery order, as the subpoenaed

medical records are relevant to the underlying litigation and a

strict confidentiality order has been put in place to protect

Dr. Mezu’s privacy interests. We therefore affirm the district

court’s judgment. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

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 AFFIRMED

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