The Court of Appeals vacated three protective orders issued by Genesee Circuit Judge Geoffrey Neithercut that prevented the Michigan Department of Human Services (DHHS) from accessing McClaren-Flint Hospital medical records in Department of Health and Human Services v Genessee Circuit Judge No. 334491. In this action for superintending control, the COA held that the circuit court lacked legal authority to issue the protective orders and the orders were an abuse of Judge Neithercut’s discretion.

In issuing its order, the court stated “an order restricting the flow of information to a state agency, or curtailing a state agency’s ability to fulfill its statutory mandate, cannot rest on catchy phrases or naked assertions devoid of factual support. And nothing more than that has been presented to this court.”

FACTS: This matter arose out of the Flint Water Crises. According to the Flint Water Advisory Task Force, the events that led to the water quality debacle created lead exposure and heightened susceptibility to Legionnaire’s Disease. DHHS tried to investigate the Legionnaire’s cases at the hospital, however, it was stopped when Judge Neithercut issued three protective orders barring DHHS from obtaining any information from McLaren relating to the hospital’s legionnaire’s outbreak.

The investigation began with a request by DHHS for a site visit to the hospital. That site visit request was denied by the hospital because of the various lawsuits arising out of the Flint Water crises that named both the hospital and the Department as parties which, it believed, could be a conflict of interest. The Assistant Attorney General Darrin Fowler and Genesee County Chief Assistant Prosecuting Attorney Celeste Bell requested reconsideration of that decision, issuing an investigative subpoena.

Michael P. Manley, attorney for McClaren-Flint, went to the court to obtain a protective order.

Three protective orders were issued:

1. Protective order one: The Judge issued the first protective order declaring the requested medical records confidential. The order was issued after meetings and other communications, none of which took place on the record nor did the proponents of the order file a petition or other document requesting the order. Counsel for DHHS was not present at any of the meetings.

2. Protective order two: After another off-record meeting, the court issued a second order declaring the records confidential and also denying DHHS access to them.

3. Protective order three followed shortly after order two. It prohibited DHHS from viewing any of the hospital’s scientific records related to Legionnaire’s disease.

Immediately, DHHS filed a motion for superintending control in the COA on the grounds of separation of powers. The hospital and counsel for the court argued that MCR 6.201, which governs criminal cases, gave the court authority to issue protective orders in this matter because of the on-going criminal charges against individuals involved in the Water Crises.

The Court of Appeals rejected that argument since MCR 6.201applied to criminal, not civil cases. The COA decided that the circuit court lacked any legal authority to issue the protective orders because no motions requesting the orders were filed, no testimony was taken and no record of proceedings was created. The court also found that the “broad scope of the orders constituted an abuse of Judge Neithercut’s discretion.”

The Court of Appeals vacated each of the protective orders.