Opinion
No. 349179 No. 349459
07-23-2020
DON M. BOSCO, as Personal Representative of the ESTATE OF HEPING ZHAO, Plaintiff-Appellee, v. AMEED MOHAMMAD SAEED RAOOF, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Washtenaw Circuit Court
LC No. 17-000236-NO Before: METER, P.J., and BECKERING and O'BRIEN, JJ. PER CURIAM.
Defendant, Ameed Mohammad Saeed Raoof, appeals the trial court's order denying his motion for summary disposition under MCR 2.116(C)(4) (lack of subject-matter jurisdiction), (C)(7) (immunity granted by law or expired statute of limitations), and (C)(10) (no genuine issue of material fact) with respect to plaintiff's claim of intentional infliction of emotional distress (IIED). Because plaintiff, the Estate of Heping Zhao, has produced no admissible evidence to establish a genuine issue of material fact with respect to whether defendant engaged in extreme and outrageous conduct sufficient to support a claim of IIED, we reverse and remand for entry of an order granting summary disposition in favor of defendant.
Estate of Heping Zhao v Raoof, unpublished order of the Court of Appeals, entered October 22, 2019 (Docket No. 349459). In Docket No. 349179, defendant appeals by right the trial court's denial of his motion for summary disposition on the ground that plaintiff's complaint is barred by governmental immunity. In Docket No. 349459, defendant appeals by leave granted the trial court's denial of his motion for summary disposition on grounds that the court lacked subject-matter jurisdiction over plaintiff's IIED claim, the statute of limitations relevant to plaintiff's IIED claim had expired, and plaintiff's claim lacked merit. We granted defendant's application for leave to appeal and consolidated the appeals in the same October 22, 2019 order.
I. RELEVANT FACTS AND PROCEEDINGS
This case arose as a result of Zhao's death on or about April 9, 2013. Zhao was an employee at the University of Michigan's plastination laboratory. Until his retirement in 2012, defendant was Zhao's supervisor at the lab. On April 9, 2013, Zhao took his customary walk during the workday, but he did not return to work. Two days later, Zhao's body was found in a secluded area between a parking structure and a building. His death was deemed a suicide, with Zhao having jumped off the top of the parking structure. Plaintiff was appointed as the personal representative of Zhao's estate in March 2016.
Although defendant's status after his retirement is unclear, it appears from the record that he continued to work a few hours at the lab monthly and to supervise lab activities.
In March 2017, plaintiff filed a complaint alleging IIED and negligence and seeking damages from defendant on behalf of Zhao's estate. Regarding the IIED claim, plaintiff alleged that Zhao was under tremendous stress in 2012 and 2013 because of defendant's mismanagement of the plastination lab and his demands that Zhao engage in unethical or wrongful behavior, which Zhao refused to do. Because Zhao had applied for a green card, he could not lose his job, and he feared that defendant would fire him for not following orders. Plaintiff alleged that Zhao had observed defendant remove human body specimens from the plastination lab and take expensive chemicals from the lab and replace them with cheaper substitutes in furtherance of a side gig of his own. Plaintiff further alleged that defendant knew Zhao was aware of his wrongdoing. The complaint further indicated that Zhao sought medical treatment for anxiety and depression in November 2012, and although defendant knew Zhao had resorted to medical assistance for his work-related stress, he continued to demand that Zhao engage in unethical or wrongful behavior. Plaintiff alleged that defendant's misconduct was extreme and outrageous, intentional and/or reckless and without regard for Zhao, and that it caused Zhao mental and emotional distress; as a result, Zhao suffered physical injury, damage to his health, and emotional distress, causing him to seek medical assistance and treatment.
Plaintiff subsequently abandoned the negligence claim. Plaintiff's only remaining claim is IIED.
While he was employed by the University of Michigan, defendant formed and operated Global Anatomy Project (GAP) and Global Plastinates (GP). GAP sent anatomical specimens to international medical institutions. GP was the laboratory that prepared the specimens that were sent by GAP. GAP, as well as GP, had a conflict-of-interest agreement with the University of Michigan. Under the agreements, GP was prohibited from obtaining specimens from within the state of Michigan, and GAP was prohibited from sending specimens to medical schools in the United States. According to defendant, GAP and GP never received any specimens, silicone, or chemicals that were from the plastination lab.
Zhao's widow, Yingjie Zhang, signed an affidavit on July 10, 2017 attesting to many of the allegations in the complaint. She said that Zhao told her in July 2009 that another plastination lab employee, Longping Liu, would be leaving the lab and that his workload and duties would fall on Zhao's shoulders. In 2011, Zhao told her that specimens were missing from the plastination lab. He later told her that, in March or April 2012, he witnessed defendant take a specimen from the plastination lab without following proper protocol, and that, on another occasion, he saw defendant take a barrel of silicone from the plastination lab. Zhang avowed that Zhao had no one to report defendant to without fear of losing his job, and that he continuously worried about these incidents ruining his reputation, his career, and his dream of becoming a United States citizen. Because of the plastination lab being understaffed and defendant assigning more students than usual to be taught by him, Zhao was under enormous pressure, particularly from June 2012 until his death in April 2013. Zhang stated that she saw great stress in Zhao's personality and demeanor, and Zhao became more withdrawn as time went on.
Zhang further attested that, beginning on January 8, 2013, she worked as a volunteer in the plastination lab, alongside Zhao, to help with his workload and to give him support. Zhang stated that she knew defendant stole a specimen from the plastination lab in March 2013, and that Zhao was concerned he would be blamed for the missing specimen. She averred that mismanagement of the lab and theft of human body specimens by defendant were the direct causes of Zhao's depression and distress, and that there was no truth to any claim that Zhao's distress was caused by family problems.
In July 2012, after returning from a trip to China, Zhang e-mailed Zhao's physician about distress Zhao had experienced while in China:
More than one month ago [i.e., June 2012] while we were in our home town, we met with some unexpected unhappiness. Heping [Zhao] and I were deeply shocked, and especially Heping became more and more anxious; then we both suffered from insomnia. Heping's condition has been much more serious than mine.
In April 2019, Zhang gave a video deposition from China with the help of an interpreter. During her deposition, she admitted that many of the claims she made in her affidavit were based on what Zhao had told her. Zhang had personal knowledge only about happenings in the plastination lab that occurred between January 2013, when she began volunteering there, and April 2013, when Zhao died. As to the assertion in her affidavit that defendant stole a specimen from the lab, Zhang testified that on one occasion, while defendant was working in the plastination lab after he retired, she saw defendant's bag "kind of bulge." She did not look into defendant's bag, nor did she ask defendant what was in his bag. Zhang could not identify the specimen that she believed defendant took from the plastination lab.
Defendant, who was working for Weill Cornell Medicine in Qatar at the time, also gave a video deposition in April 2019. Among other things, defendant testified that Zhao was a good employee whom he cared for and considered to be a close friend. After Liu left, defendant worked with the University of Michigan to get Liu's position passed to Zhao so Zhao could become a permanent employee of the plastination lab. Defendant was aware that Zhao was suffering from depression in 2012 and was seeking help, but he did not believe that Zhao ever raised a concern about his workload. Defendant also testified that at no time while he was director of the lab was a human body specimen ever suspected or confirmed to be missing, nor were any chemicals ever found to be missing.
Following the close of discovery, defendant filed a motion for summary disposition, arguing that plaintiff's claims were barred by governmental immunity, the three-year statute of limitations for intentional torts, and the exclusive remedy provision of the Worker's Disability Compensation Act, MCL 418.101 et seq. Defendant further argued that plaintiff was unable to meet the burden of establishing all the elements of the IIED claim. Among other documents attached to the motion for summary disposition were transcripts of Zhang's deposition and of defendant's deposition, medical records related to Zhao's treatment for anxiety and depression, and responses from the University of Michigan to a November 5, 2018 subpoena, in which the university replied in relevant part that it was unaware of any human body specimens or supplies that were unaccounted for or missing from the plastination lab.
This was defendant's third motion for summary disposition. The trial court justified its denial of the first two on the ground that discovery had not yet been completed. Defendant appealed after each denial, but we were not persuaded that the matter required immediate review. Estate of Heping Zhao v Raoof, unpublished order of the Court of Appeals, entered February 22, 2018 (Docket No. 339718); Estate of Heping Zhao v Raoof, unpublished order of the Court of Appeals, entered December 20, 2018 (Docket No. 344771). --------
Plaintiff argued in opposition to the motion that governmental immunity did not apply to defendant's actions because they were outside the scope of his employment. Plaintiff also argued that the court had already addressed defendant's statute-of-limitations argument, and the court's final decision was not subject to reconsideration. Further, plaintiff indicated that Zhang's affidavit raised and supported a valid IIED claim, particularly attestations that defendant's acts had caused Zhao to become distressed about missing human body specimens and materials and gave rise to Zhao's fear that he would lose his employment and visa status in the United States. Plaintiff argued that "taking all of the well-pleaded facts as true, as the court must, the issue of causation for the IIED claim presents a material question of fact for the trier of fact."
The trial court heard oral arguments on defendant's motion on May 23, 2019. Afterwards, the court declined to revisit its prior rulings on governmental immunity, the statute of limitations, and the WDCA, and denied defendant's motion under MCR 2.116(C)(10) based on its conclusion that "there is evidence that a reasonable juror could conclude that the action did occur under this element under the law." The court further noted that "whether or not a particular piece of evidence of what is said is admissible, we deal with that as it comes up." An order denying defendant's motion for summary disposition for the reasons stated on the record was entered on June 4, 2019.
II. ANALYSIS
Defendant argues that the trial court erred in denying his motion for summary disposition pursuant to MCR 2.116(C)(10) because plaintiff failed to establish the existence of a genuine issue of material fact concerning its IIED claim. We agree.
This Court reviews de novo a trial court's decision on a motion for summary disposition. Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Summary disposition under MCR 2.116(C)(10) is proper when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." "Because a motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint, the circuit court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties . . . in the light most favorable to the party opposing the motion." Joseph v Auto Club Ins Ass'n, 491 Mich 200, 206; 815 NW2d 412 (2012) (citation omitted). "A question of fact exists when reasonable minds could differ as to the conclusions to be drawn from the evidence." Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). However, when the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass'n, 202 Mich App 233, 237; 507 NW2d 741 (1993).
Establishing a claim of IIED requires evidence of "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress." Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999). Liability for IIED will only be found when the conduct complained of is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id. "The test is whether the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to claim, 'Outrageous!' " Id. at 674-675 (quotation marks and citation omitted). It is initially for the court to determine whether the defendant's conduct reasonably may be regarded as so extreme and outrageous as to permit recovery. Doe v Mills, 212 Mich App 73, 92; 536 NW2d 824 (1995). But, when reasonable minds may differ, it is for the jury to determine whether the conduct is extreme and outrageous. Id.
Plaintiff asserts that Zhang's sworn testimony establishes a factual dispute regarding whether defendant's conduct was extreme and outrageous, reckless, and the cause of Zhao's severe emotional distress. It does not. An affidavit in support or opposition of a motion must be made on the basis of personal knowledge, MCR 2.119(B)(1)(a), and it may only be considered to the extent that the content or substance would be admissible as evidence, MCR 2.116(G)(6). Inadmissible hearsay cannot be used to create a genuine issue of material fact. McCallum v Dep't of Corrections, 197 Mich App 589, 603; 496 NW2d 361 (1992).
As Zhang admitted at her deposition, much of what she claimed in her affidavit was not based on personal knowledge, but on what Zhao had communicated to her. Those claims included that the plastination lab was understaffed after Liu left, that defendant mismanaged the lab, that specimens were missing from the lab, that defendant took specimens and a barrel of silicon from the lab, and that the lab was behind in fulfilling orders. This testimony about matters of which Zhang had no personal knowledge is inadmissible hearsay testimony, and it cannot be used to create a genuine issue of material fact as to whether defendant misappropriated specimens or supplies from the lab. Id.
Zhang did have personal knowledge about conditions in the plastination lab after she began volunteering there in January 2013, and she stated in her affidavit that she knew of a specimen theft by defendant in March 2013. However, Zhang later admitted that she could not identify the specimen that she believed defendant stole. Rather, she had only seen a "kind of bulge" in defendant's bag, and did not look in the bag or ask defendant what was in the bag. Thus, the only evidence in support of Zhang's assertion that defendant stole a specimen in March 2013 was her testimony she saw a "bulge" in defendant's bag and her speculation that it was a human body specimen. The opposing party's speculation and conjecture are insufficient to create a question of fact. Skinner v Square D Co, 445 Mich 153, 172-173; 516 NW2d 475 (1994). Accordingly, plaintiff has not presented evidence from which reasonable minds could differ regarding whether defendant stole a specimen from the plastination lab in March 2013.
Additionally, Zhang stated in her affidavit that defendant demanded that Zhao engage in unethical, immoral, and illegal acts. However, plaintiff never referenced any evidence that specified what those acts were, and Zhang did not provide any details of those acts during her deposition. By not specifying what alleged unethical, immoral, and illegal acts defendant demanded Zhao engage in, plaintiff has not established that such demands by defendant were so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. Id.
Further, Zhang testified that she witnessed defendant's mismanagement of the plastination lab when she volunteered in the lab. According to Zhang, the mismanagement of the plastination lab caused the lab to be understaffed and behind in fulfilling orders for specimens and caused more students than usual to be assigned to Zhao. However, mismanagement of a workplace that causes the workplace to be understaffed and behind in its duties and to have additional duties assigned to an employee is not conduct so outrageous in character, and so extreme in degree, as to go beyond all possible founds of decency. Graham, 237 Mich App at 674. It cannot be regarded as atrocious and utterly intolerable in a civilized society. Id.
Viewing the evidence in the light most favorable to plaintiff, Zhang's inadmissible hearsay testimony cannot be used to create a genuine issue of material fact. McCallum, 197 Mich App at 603. Her admissible testimony that the "bulge" she saw in defendant's bag in March 2013 was a specimen is mere speculation, which also cannot be used to create a genuine issue of material fact. Skinner, 445 Mich at 172-173. Because there is no admissible evidence establishing a material factual dispute regarding whether defendant engaged in the alleged conduct of wrongfully removing specimens and chemicals from the lab and no admissible evidence that defendant demanded unethical or wrongful behavior from Zhao, or that such alleged demands were extreme or outrageous, and because defendant's alleged mismanagement of the lab did not rise to the level of extreme and outrageous conduct required to sustain an IIED claim, defendant was entitled to summary disposition pursuant to MCR 2.116(C)(10).
Defendant argues that the trial court also erred in denying his motion for summary disposition pursuant to MCR 2.116(C)(4) and (C)(7). However, in light of our conclusion that summary disposition under MCR 2.116(C)(10) was appropriate, we need not address defendant's additional issues on appeal. Accordingly, we reverse the trial court's order and remand for entry of an order consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Jane M. Beckering
/s/ Colleen A. O'Brien
Later that month, Zhao saw another physician, Dr. Charisse Gencyuz, who made the following note about the visit:
The patient is accompanied by his wife today[,] who provides most of the history. He was visiting family in China in a village where he witnessed something that is described as "unpleasant and sad." Since then, he has been unable to sleep, upset about it, anxious. He usually wakes up around 3 or 4 in the morning and cannot get back to sleep. . . . He used it [prescribed medication] for sleep initiation and then gets up several hours later [in] the night anxious and thinking about the incident. He cannot get back to sleep, so he takes another one. He is able to work. He is not suicidal or homicidal. He refused to tell me what the incident was.Zhang testified at her deposition that Zhao's distress was caused by defendant, not by any family issue. She said she told a "white lie" when she told Zhao's doctors that Zhao's problems were caused by a family issue. She could not tell the truth because the truth would cause a lot of harm to defendant and they had to uphold defendant's reputation.