UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DAFINKA STOJCEVSKI, individually 

and as Personal Representative of the 

Estate of DAVID STOJCEVSKI, 

 Civil Case No. 15-11019 

 Plaintiff, Honorable Linda V. Parker 

v. 

COUNTY OF MACOMB, et al. 

 Defendants. 

_____________________________________/ 

OPINION AND ORDER REJECTING DEFENDANTS’ OBJECTIONS TO 

MAGISTRATE JUDGE’S AUGUST 22, 2017 ORDER 

AND AFFIRMING ORDER

 This federal civil rights action, brought pursuant to 42 U.S.C. § 1983, arises 

from the death of Plaintiff’s decedent, David Stojcevski, while incarcerated at the 

Macomb County Jail. The matter presently is before the Court on objections filed by 

Defendant Correct Care Solutions (“CCS”) to Magistrate Judge David R. Grand’s 

August 22, 2017 Order Granting Plaintiff’s Motion to Compel. (ECF No. 92.) In the 

Order, Magistrate Judge Grand held that Michigan’s Peer Review Privilege, Mich. 

Comp. Laws § 333.21515, does not shield CCS’ Care Team Meeting and Mortality 

Review Documents from discovery. (Id.) CCS filed objections to Magistrate Judge 

Grand’s decision on September 5, 2017. (ECF No. 96.) In those objections, CCS also 

asks the Court to certify the privilege issue to the Sixth Circuit Court of Appeals for 
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interlocutory review if the Court affirms Magistrate Judge Grand’s decision. Plaintiff 

filed a response on September 19, 2017. (ECF No. 101.) 

 When a party objects to a magistrate judge’s non-dispositive decision, the 

reviewing court must affirm the magistrate judge’s ruling unless the objecting party 

demonstrates that it is “clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 72(a); 

28 U.S.C. § 636(b)(1)(A). The “clearly erroneous” standard does not empower a 

reviewing court to reverse a magistrate judge’s finding because it would have decided 

the matter differently. See, e.g., Anderson v. Bessemer City, N.C., 470 U.S. 564, 573-

74 (1985). Instead, the “clearly erroneous” standard is met when despite the existence 

of evidence to support the finding, the court, upon reviewing the record in its entirety, 

“is left with the definite and firm conviction that a mistake has been committed.” Id. 

(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). For the 

reasons that follow, this Court finds no error in Magistrate Judge Grand’s analysis. 

 CCS argues that Magistrate Judge Grand committed a legal error in failing to 

conclude that the Sixth Circuit’s decision in Loyd v. Saint Joseph Mercy Oakland, 766 

F.3d 580 (6th Cir. 2014), is controlling precedent and mandates the application of 

Michigan’s Peer Review Privilege in this § 1983 action. This Court disagrees. 

Neither the District Court nor Sixth Circuit in Loyd considered whether the privilege 

applies in a federal question case. 

 Instead, the issues presented were whether Michigan’s Peer Review Privilege 

(1) extends to reports involving actions committed by hospital staff members who are 
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not physicians or nurses, and (2) was waived by the hospital’s submission of a 

summary of its report to the EEOC. Loyd, 766 F.3d at 588-89. As a review of the 

briefing in Loyd reflects, the parties expressly proceeded under the assumption that 

the application of the privilege was being determined with respect to only the 

plaintiff’s state law claim for intentional infliction of emotional distress and was not 

relevant to the plaintiff’s federal discrimination claims. See Def.’s Br. in Resp. to 

Mot. Compel, Loyd v. St. Joseph Mercy Oakland, No. 12-cv-12567 (E.D. Mich. filed 

Feb. 15, 2013), ECF No. 22 at Pg ID 195; Appellee Br., id., No. 13-2335 (6th Cir. 

April 9, 2014), ECF No. 33 at Pg ID 69. In short, the Sixth Circuit in Loyd was not 

presented with and did not decide whether Michigan’s Peer Review Privilege is 

applicable in federal question cases. Thus, Magistrate Judge Grand committed no 

error in concluding that the Sixth Circuit’s decision lacked binding precedential value. 

 As Magistrate Judge Grand correctly held, “[q]uestions of privilege are to be 

determined by federal common law in federal question cases.” Reed v. Baxter, 134 

F.3d 351, 355 (6th Cir. 1998) (citing Fed. R. Evid. 501). Federal courts have nearly 

uniformly declined to create a federal peer review privilege. See, e.g., Grabow v. Cty. 

of Macomb, No. 12-cv-10105, 2013 WL 3354505, at *6 (E.D. Mich. July 3, 2013) 

(“The overwhelming majority of federal courts agree that there is not a federal 

common law peer review privilege.”); Zamorano v. Wayne State Univ., No. 07-cv12943, 2008 WL 2067005, at *5 (E.D. Mich. May 15, 2008) (“Notably, every federal 

court of appeals that has addressed the issue for purposes of federal common law has 
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determined that there is no ‘federal’ peer review privilege.”). The Supreme Court has 

recognized that Federal Rule of Evidence 501 “authorizes federal courts to define new 

privileges,” but cautioned that any such undertaking must “start with the fundamental 

maxim that the public ... has a right to every man’s evidence.” Jaffee v. Redmond, 

518 U.S. 1, 9 (1996). 

 The out-of-district cases CCS cites in its objections do not convince this Court 

that Magistrate Judge Grand erred in his decision. The District Court for the Northern 

District of Illinois in Cornejo v. Mercy Hospital and Medical Center, No. 12-cv-1675, 

2014 WL 4817806 (Sept. 15, 2014), did not analyze whether the state’s peer review 

privilege was applicable to a federal claim as the case involved a personal 

injury/medical malpractice claim, albeit under the Federal Tort Claims Act. Id. at *1. 

State law provides the rule of decision for such a claim. 28 U.S.C. § 2674; Ward v. 

United States, 838 F.2d 182, 184 (6th Cir. 1998) (“The liability of the United States in 

actions under the Federal Tort Claims Act is governed by the law of the place where 

the alleged tort occurred.”). 

 The court in Elkharwily v. Mayo Holding Co., No. 12-cv-3062, 2014 WL 

3573674 (D. Minn. July 21, 2014), premised its discussion of the application of the 

peer review privilege with the statement: “Where, as here, a plaintiff alleges claims 

under both federal and state law, it is within the court’s discretion to apply the state 

peer review privilege statute.” Id. at *3. Similarly, the court in Nelson v. Green, No. 

06-cv-70, 2014 WL 2695535 (W.D. Va. June 12, 2014), based its holding on the fact 
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that “the remaining claim in th[e] case [wa]s a state law claim before the [c]ourt under 

pendent jurisdiction.” Id. at *2. The Sixth Circuit has held, however, that in a federal 

question case with pendent state claims, the court must apply the federal law of 

privilege. Hancock v. Dodson, 958 F.2d 1367, 1373 (1992) (“Since the instant case is 

a federal question case by virtue of the appellant’s section 1983 claim, we hold that 

the existence of pendent state law claims does not relieve us of our obligation to apply 

the federal law of privilege.”). 

 Finally, the Court is unpersuaded by the reasoning in Hadix v. Caruso, No. 92-

cv-110, 2006 WL 2925270 (W.D. Mich. Oct. 6, 2006). As one district court stated in 

rejecting Hadix, the decision “drew upon dicta from a gigantic footnote in United 

States v. Michigan, 940 F.2d 143, 161-166 & n.12 (6th Cir. 1991), . . . and “cited no 

precedent except for Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250-51 (D.D.C. 

1970), a thirty-seven year old district court case that ... itself cited only a single 

source of authority.” Jenkins v. DeKalb Cty., Ga., 242 F.R.D. 652, 660 (N.D. Ga. 

2007). 

 Having concluded that Magistrate Judge Grand did not err in declining to apply 

Michigan’s Peer Review Privilege in this § 1983 action, the Court turns to CCS’ 

request for certification of the issue to the Sixth Circuit for interlocutory review under 

28 U.S.C. § 1292(b). Section 1292(b) allows a district court to certify an issue for 

immediate appeal if the court is “of the opinion that such order involves a controlling 

question of law as to which there is substantial ground for difference of opinion and 
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that an immediate appeal from the order may materially advance the ultimate 

termination of the litigation ....” 28 U.S.C. § 1292(b). As explained above, there is 

not a substantial ground for difference of opinion on the question of whether a state’s 

peer review privilege applies in a § 1983 action. Federal courts have nearly uniformly 

declined to create a federal peer review privilege. Moreover, immediate appeal will 

not materially advance the ultimate termination of this litigation. 

 For these reasons, the Court rejects CCS’ objections to Magistrate Judge 

Grand’s August 22, 2017 Order and AFFIRMS the decision. 

IT IS SO ORDERED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: February 27, 2018 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, February 27, 2018, by electronic and/or U.S. 

First Class mail. 

 s/ R. Loury 

 Case Manager