Rose Ure 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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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

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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Unpublished opinions are not binding precedent in this circuit.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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