I have been watching the Bielaska v Orley case since it was covered by the Detroit Free Press where
I first became aware of it. When the Court of Appeals issues an "UNPUBLISHED" decision it means
that no one may quote it, or cite it as a legal authority, in a court filing, legal brief, or argument. In other
words the Court of Appeals made the decision and does not want to hear about it again.

Unpublished cases are not generally available unless they are obtained directly from the Clerk of the
Court of Appeals. There are some legal services that do make unpublished cases available.

I have made the entire seven (7) page decision available here for it shows the extent that immunities
have evolved within the courts. Immunities have been extended through the courts to include witnesses
that may be appointed by the court and called to testify, or participate in the legal process.

What may be read between the lines is that in Michigan a judge may appoint an expert witness to make
an evaluation in any case before the court and knowingly appoint an "expert witness" who will lie,
manufacture and fabricate the facts and there will still be immunities for the judge and the appointed
expert witness. That is the case law in Michigan that is upheld by the Michigan Court of Appeals and
the Michigan Supreme Court. The theory is that these experts cannot be held to a standard that may
compromise their independent decision making because if they were subject to lawsuits for their actions
they may not be willing to tell the truth to avoid a lawsuit. It amazes me that given the theory justifying
immunities that the "higher authourities" cannot see that the alternative has been to "open the door" to
anything now goes and it is now called "DUE PROCESS!"

I have included the relevant quote from the case directly below with my own highlights.
 

"Our Supreme Court affirmed dismissal of the civil action, finding that summary disposition was
warranted under MCR 2.116(C)(7) and (8). Id. at 118. In that opinion, the Court explained the scope of
the witness immunity doctrine in Michigan. The Court stated: [W]itnesses who testify during the course
of judicial proceedings enjoy quasi-judicial immunity. This immunity is available to those serving in a
quasi-judicial adjudicative capacity as well as "those persons other than judges without whom the
judicial process could not function." Witnesses who are an integral part of the judicial process "are
wholly immune from liability for the consequences of their testimony or related evaluations." Statements
made during the course of judicial proceedings are absolutely privileged, provided they are relevant,
material, or pertinent to the issue being tried. Falsity or malice on the part of the witness does not
abrogate the privilege. The privilege should be liberally construed so that participants in
judicial proceedings are free to express themselves without fear of retaliation."
 

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UNPUBLISHED
February 9, 2001
No. 215286
LC No. 96-614421-NM
Wayne Circuit Court
No. 215287
LC No. 96-016160-CM
Court of Claims

                          S T A T E  O F  M IC H IGA N
                          C O U R T  O F  A P P E A L S

EDWARD BIELASKA and CLAUDIA
BIELASKA,
Plaintiffs-Appellants,

v

LINDA ORLEY, LAURA ORLEY, and
WILLIAM ORLEY,
Defendants,
and
KAREN SCHULTE, FAMILY CONSULTATION
& TREATMENT SERVICES, INC., KATHLEEN
COULBORN FALLER, JANE MILDRED, and
ELLEN DEVOE,
_______________________________________
Defendants-Appellees.
EDWARD BIELASKA and CLAUDIA
BIELASKA,
Plaintiffs-Appellants,

v

BOARD OF REGENTS OF THE UNIVERSITY
OF MICHIGAN, and UNIVERSITY OF
MICHIGAN SCHOOL OF SOCIAL WORK, d/b/a
UNIVERSITY OF MICHIGAN
INTERDISCIPLINARY PROJECT ON CHILD
ABUSE & NEGLECT, d/b/a FAMILY
ASSESSMENT CLINIC,

Defendants-Appellees.
__________________________________________

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Before: Smolenski, P.J., and Holbrook, Jr. and Gage, JJ.
PER CURIAM.

Plaintiffs filed suit against defendants alleging several causes of action, including gross negligence,
intentional infliction of emotional distress, defamation, fraud, civil rights violations, and bad faith.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), alleging that they were
entitled to immunity, and pursuant to MCR 2.116(C)(8), alleging that they owed no recognized legal
duties to plaintiffs.1 On October 3, 1997, the trial court granted summary disposition to defendants
Faller, Mildred, DeVoe, and their employer, the University of Michigan’s Family Assessment Clinic,
pursuant to both MCR 2.116(C)(7) and (C)(8). On November 7, 1997, the trial court granted summary
disposition to defendant Schulte and her employer, Family Consultation and Treatment Services, on the
same grounds. Plaintiffs appeal those orders by leave granted. We affirm.

First, defendants Faller, Mildred, DeVoe and the University of Michigan (hereafter the FAC
defendants) argue that this Court does not have jurisdiction over plaintiffs’ appeal. We disagree. The
trial court granted summary disposition to these defendants on October 3, 1997. Plaintiffs filed a claim
of appeal in this Court on October 15, 1997, in Docket No 206834. The claim of appeal was dismissed
on March 27, 1998, for lack of jurisdiction because the order dated October 3, 1997, was not a final
order. Plaintiffs filed a delayed application for leave to appeal on October 23, 1998. Defendants argue
that this Court lacks jurisdiction to hear the appeal because plaintiffs filed the delayed application for
leave to appeal more than twelve months after the entry of the circuit court order being appealed. This
argument has no merit because the twelve month time period for filing a delayed application for leave to
appeal provided under MCR 7.205(F)(3) was tolled during the time that appellate proceedings
connected with the order at issue were pending in this Court. People v Kincade (On Remand), 206
Mich App 477, 483; 522 NW2d 880 (1994).

In addition to rejecting the jurisdictional challenge, we reject plaintiffs’ argument that defendants were
not entitled to summary disposition on the ground of witness immunity. The FAC defendants were
involved as expert witnesses in a previous child custody case wherein the mother of plaintiff Edward
Bielaska’s children accused Edward of sexually abusing them. Pursuant to a trial court order, the FAC
defendants conducted an evaluation of the case and reached the conclusion that Edward had sexually
abused the children. When the trial court later quashed the order appointing the FAC defendants to
conduct the independent evaluation, the children’s mother used the FAC defendants as her experts at
trial. The FAC defendants’ evaluations and testimony were taken into account at the custody trial.

Defendant Schulte became involved in the underlying custody case when, while the custody case was
pending, the children’s mother asked Schulte to evaluate and treat the children
_________________________
1 The civil rights claims were dismissed by plaintiffs before the motions for summary disposition
were heard.
_________________________

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for sexual abuse. Schulte did so, and later served as an expert witness at trial, testifying about her
evaluation and her conclusion that Edward had abused the children. Like the FAC defendants,
Schulte’s evaluation was taken into account by the trial court when deciding the custody issue.
Ultimately, the trial court determined that Edward had sexually abused both children and awarded
custody to the children’s mother.

Plaintiffs filed the instant suit against defendants while pursuing an appeal from the underlying custody
matter. In Bielaska v Orley, unpublished opinion per curiam of the Court of Appeals, issued July 19,
1996 (Docket Nos. 173666, 174949, 175287, 175388), this Court held that the trial court’s finding of
sexual abuse by Edward was against the great weight of the evidence, and we reversed the trial court’s
decision granting custody of the children to their mother. On remand, the trial court awarded Edward
custody of both children and prohibited the children’s mother from seeing them.

In the instant case, we must decide whether defendants were entitled to summary disposition on the
ground of witness immunity. Summary disposition may be granted under MCR 2.116(C)(7) if:

[t]he claim is barred because of release, payment, prior judgment, immunity granted by law, statute of
limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or
assignment or other disposition of the claim before commencement of the action.

In Maiden v Rozwood, 461 Mich 109, 133-134; 597 NW2d 817 (1999), which was decided after the
parties to the instant case filed their briefs on appeal, the Court discussed the issue of witness immunity.
In Maiden’s companion case, Reno v Chung, 461 Mich 116, the plaintiff found his wife and daughter
brutally stabbed. Before the plaintiff’s daughter died, she spoke to the plaintiff and told him who had
attacked her. The plaintiff relayed this information to police. Id. The medical examiner, who performed
a subsequent autopsy, opined that the plaintiff’s daughter could not have spoken after being stabbed. Id.
On the basis of that opinion, the plaintiff was arrested for murdering his wife and daughter and was
bound over for trial. Id. At the preliminary examination, the medical examiner testified that the
plaintiff’s daughter could not possibly have identified another person as the attacker. Id. Later, the
medical examiner’s opinions were found to be grossly incompetent and the charges against the plaintiff
were dismissed. Id. at 117, 128-129. The plaintiff sued the medical examiner and others, alleging
gross negligence. Id. at 117.

Our Supreme Court affirmed dismissal of the civil action, finding that summary disposition was
warranted under MCR 2.116(C)(7) and (8). Id. at 118. In that opinion, the Court explained the scope of
the witness immunity doctrine in Michigan. The Court stated:

[W]itnesses who testify during the course of judicial proceedings enjoy quasi-judicial immunity. This
immunity is available to those serving in a quasi-judicial adjudicative capacity as well as “those persons
other than judges without whom the judicial process could not function.” Witnesses who are an integral
part of the judicial process “are wholly immune from liability for the consequences of their testimony or
related evaluations.” Statements made during the course of
__________________________

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judicial proceedings are absolutely privileged, provided they are relevant, material, or pertinent to the
issue being tried. Falsity or malice on the part of the witness does not abrogate the privilege. The
privilege should be liberally construed so that participants in judicial proceedings are free to express
themselves without fear of retaliation. As this Court [previously] noted:

“Witness immunity is also grounded in the need of the judicial system for testimony from witnesses
who, taking their oaths, are free of concern that they themselves will be targeted by the loser for
further litigation. Absent perjury of a character requiring action by the prosecuting attorney, the
testimony of a witness is to be weighed by the factfinder in the matter at bar, not by a subsequent jury
summoned to determine whether the first lawsuit was tainted . . . .” [Id. at 133- 134 (citations omitted),
(emphasis added).]

The Court specifically rejected the plaintiff’s argument that witness immunity was unavailable because
the subject of his lawsuit was the autopsy and murder investigations, as opposed to the trial testimony.
Id. at 134. The Court stated that the gravamen of a plaintiff’s action is determined by considering the
entire claim, and that the plaintiff could not “avoid the protection of witness immunity by artful
pleading.” Id. at 134-135. In Couch v Schultz, 193 Mich App 292, 294-295; 483 NW2d 684 (1992), this
Court determined that witness immunity was not limited to “in court” testimony:

It is well settled in Michigan that statements made during the course of legislative proceedings,
statements made during the course of judicial proceedings, and communications by military and naval
officers are absolutely privileged. “Judicial proceedings” may include any hearing before a tribunal or
administrative board that performs a judicial function. An absolutely privileged communication is one for
which no remedy is provided for damages in a defamation action because of the occasion on which the
communication is made. A privileged occasion is an occasion where the public good requires that a
person be freed from liability for the publication of a statement that would otherwise be defamatory.
Public policy is the principle underlying the doctrine of absolute privilege. If absolute privilege applies,
there can be no action for defamation. The question whether a privilege attaches is a question of law
for the trial court. In this case, we are concerned with the absolute privilege for statements made during
the course of judicial proceedings. Statements made by witnesses during the course of such
proceedings are absolutely privileged, provided they are relevant, material, or pertinent to the issue
being tried. The immunity extends to every step of the proceeding and covers anything that may be said
in relation to the matter at issue, including pleadings and affidavits. The judicial proceedings privilege
should be liberally construed so that participants in judicial proceedings are free to express themselves
without fear of retaliation. [(Citations omitted), (emphasis added).]
_______________________

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This Court has also previously ruled that social workers play an important part in the judicial process
where the safety and welfare of children are concerned, and are entitled to absolute immunity. Martin v
Children’s Aid Society, 215 Mich App 88, 96-97; 544 NW2d 651 (1996). In that case, the plaintiffs sued
the Department of Social Services and numerous other defendants, including the Children’s Aid
Society, after the plaintiffs were falsely accused of physically abusing their thirteen-week-old daughter
and were separated from her for numerous years. The plaintiffs alleged several claims, including
negligence, breach of statutory and contractual duties, bad faith, and violation of their constitutional
rights. Id. at 93. This Court ruled that summary disposition was appropriate for the defendants on
immunity grounds, Id. at 94-95, and adopted the proposition that absolute immunity exists for social
workers involved in probate proceedings. Id. at 97. In reaching that decision, this Court found the
following argument persuasive:

Professional assistance to the Probate Court is critical to its ability to make informed, life deciding
judgments relating to its continuing jurisdiction over abused children. Its advisors and agents cannot be
subject to potential suits by persons, aggrieved by the Court’s decision vindictively seeking revenge
against the Court’s assistant as surrogates for the jurist. Faced with such liability, the social worker
would naturally tend to act cautiously and refrain from making difficult decisions, delay in intervening to
protect the child, avoid confronting the aggressive parent with the necessity of changing his attitudes
and seeking psychiatric help to do so. Such an atmosphere defeats the function of the continuing
jurisdiction of the Probate Court in the abstract, and in reality poses the potential for death for an
abused child who is not protected because the social worker exercised excessive caution in arriving at a
judgment as to whether there is sufficient evidence of abuse to merit action on his or her part.

Mere qualified immunity is not enough protection to prevent the chilling effect of a potential suit on the
exercise of a social worker’s professional judgment and discretion in operating as an arm of the
Probate Court to protect abused children. [Id. at 97-98.]

Although Martin addressed social workers in the context of child welfare proceedings in probate court,
it conferred absolute immunity because it recognized that there is a strong public policy interest in
providing expert witnesses with absolute immunity in cases where allegations of abuse are made. The
public policy concerns articulated in Martin are equally applicable in child custody cases where
allegations of abuse have been made and social workers have evaluated those claims and rendered
professional assistance to the trial court in deciding the best interests of children.

The instant case falls squarely within the immunity principles previously articulated by our courts.
During an acrimonious custody case, the defendants at issue were called upon to evaluate the situation
and reach conclusions. They subsequently testified about their evaluations and conclusions in order to
assist the trial court in determining the best interests of the children. While the defendants’ evaluations
may have been deficient, defendants are entitled to absolute witness immunity as described in Maiden,
supra at 133-134, and Couch, supra at 294-295. A
_______________________________

-6-
finding of immunity for defendants comports with the articulated scope of witness immunity in Michigan
and with the public policies expressed in Martin, supra. A separate cause of action based on
deficiencies in the experts’ evaluations would not serve the public policies of allowing witnesses
freedom to render opinions and testify at trial and of providing our courts with professional assistance in
determining the best interests of the children of this State.

The FAC defendants only became involved in the underlying custody case as independent evaluators on
order of the trial court. Their purpose was to provide the trial court with information to assist it in
determining the best interests of the children. Their evaluations and testimony were relevant, material
and pertinent to the custody issue being litigated and are clearly protected under the cloak of witness
immunity. Maiden, supra. The fact that the FAC was later dropped by the court as an independent
evaluator and used by the children’s mother as her expert witness does not alter the outcome. All of the
work which the FAC defendants performed was done for purposes of the custody case and was an
integral part of the judicial proceedings.

Although Schulte and her employer, Family Consultation & Treatment Services, are in a slightly
different position than the FAC defendants, they too are entitled to immunity from plaintiffs’ suit.
Schulte became involved in the custody case only after the children’s mother sought Schulte out to
evaluate and counsel the children for sexual abuse. Schulte was not a court appointed witness.
However, when she was retained, the issue of custody was already being litigated in the trial court and
one of the three allegations of sexual abuse had already been made. Schulte evaluated the children and
was called upon to render expert testimony about her evaluation and conclusions to the trial court. Her
conclusions were subject to extensive cross examination at the custody trial. Her trial testimony was
based on her evaluation and, as such, her evaluation was an integral part of the judicial proceedings and
was relevant, material and pertinent to the custody matter.

While plaintiffs do not dispute that Schulte’s trial testimony was protected by immunity, they make the
disingenuous argument that everything leading up to her trial testimony was unprotected by the witness
privilege. This conclusion is contrary to current law. Maiden, supra. Schulte’s relationship with the
children involved two phases: evaluation and treatment. A review of the pleadings in this case reveals
that plaintiffs’ allegations do not focus on Schulte’s treatment of the children 2 and it does not appear
that plaintiffs sustained any damages or are claiming any damages as the result of any treatment
Schulte rendered to the children. Schulte’s evaluation forms the basis of the causes of action alleged
and, as previously noted, that evaluation was a necessary predicate to her testimony and was relevant,
material and pertinent to the issue of what was in the best interests of the children. Schulte, like the
FAC defendants, is therefore entitled to witness immunity. Plaintiffs’ artful attempt to plead and argue
around witness immunity fails like the plaintiff’s argument in Reno, supra.
_______________
2 Plaintiffs did plead that defendants were grossly negligent in refusing to incorporate plaintiffs
in the process of assessment, evaluation, diagnosis, treatment or prognosis. This is not an
allegation of deficient treatment but rather is simply an allegation that defendants failed to
include plaintiffs in the process, which complaint is part and parcel of plaintiffs’ criticism of the
evaluations, which were testified about at trial and called into question at that time.
________________

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We also find that defendants’ immunity extends to all of the claims alleged by plaintiffs. In Michigan,
courts have applied witness immunity to defamation actions, Couch, supra at 293- 294, negligence
actions, Maiden, supra at 133-134, false imprisonment and battery actions, Dabkowski v Davis, 364
Mich 429, 432-433; 111 NW2d 68 (1961), and tortious interference actions, Meyer v Hubbell, 117 Mich
App 699, 710-711; 324 NW2d 139 (1982).

Finally, plaintiffs argue that summary disposition pursuant to MCR 2.116(C)(8) was inappropriate
because defendants owed them a duty when evaluating the children. We need not address this issue
because we find that immunity bars the causes of action alleged against plaintiffs. Moreover, we note
that, while plaintiffs set forth law with regard to finding a duty, they completely fail to apply that law to
the facts of their case. They simply restated general legal principles and then make the following,
conclusory statement:

A fair reading of Plaintiff/Appellants’ complaint as well as a rational understanding of “duty” as it has
been described by this Court and the Michigan Supreme Court finds adequate support for the very
duties these Defendants seek to avoid.

The complaints against defendants do not set forth any specific duties, but simply allege that defendants
owed clearly cognizable duties. Because plaintiffs leave this Court to guess at the duties they are trying
to establish and to analyze whether those duties are recognized, we decline to review this issue. “An
appellant may not merely announce his position and leave it to this Court to discover and rationalize the
basis for his claims.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). We note,
however, that an expert witness does not owe any duty to an adverse party. Maiden, supra.

Affirmed.
/s/ Michael R. Smolenski
/s/ Donald E. Holbrook, Jr.
/s/ Hilda R. Gage