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STATE OF MICHIGAN COURT OF APPEALS

MARY T. SCOTT, Plaintiff-Appellant, v FRANK HARON WEINER & NAVARRO; DAVID L. HARON; MONICA P. NAVARRO; and J. LAEVN WEINER, Defendants-Appellees.

UNPUBLISHED August 18, 2009

No. 286833 Oakland Circuit Court LC No. 07-086204-NM

Before: Stephens, P.J., and Jansen and Wilder, JJ. PER CURIAM. Plaintiff appeals by right from the circuit court's order granting defendants' motion for summary disposition, in this action alleging legal malpractice. We affirm. This action arises from defendant's representation of plaintiff in an action in federal district court, wherein plaintiff alleged that her employer, Metropolitan Health Corporation ("Metropolitan") engaged in fraudulent billing of medical claims. The facts of the underlying case are set forth in the federal district court's opinion in United States ex rel Scott v Metro Health Corp, 375 F Supp 2d 626, 628 (WD Mich, 2005), and we draw from that opinion to briefly state the facts. In 1996, plaintiff began work as a consultant for Metropolitan, a hospital in Grand Rapids, Michigan. United States ex rel Scott, supra at 629. During her consulting relationship with Metropolitan, plaintiff expressed legal compliance (tax and Medicare) concerns about Metropolitan's purchases of physician practices. Id. In 1997, Metropolitan hired the plaintiff as vice president of network development, in which capacity plaintiff functioned as a leading manager for Metropolitan's for-profit sister entities, "Metropolitan Enterprises." Metropolitan Enterprises provided billing services for Metropolitan's associated physicians, managed the "Metro Health Plaza" offices, managed the third-party payer relationships for the Hospital and physicians, and performed other tasks generally related to the Hospital's mission. As a part of this assignment, plaintiff served as one member of Metropolitan's Compliance Committee, as well as a member of Metropolitan's Billing and Coding Task Force, an important legal compliance committee assignment because of its role in private and governmental billings. Soon thereafter, however, problems arose concerning plaintiff's interactions with co-workers, subordinates, and physicians. Id. at 630. Plaintiff began making secret tape recordings of certain -1-

conversations. Id. at 631. Plaintiff also lodged complaints about various legal compliance concerns she had. Id. at 634. Eventually, in February 2002, plaintiff met with a lawyer to contemplate filing a sex discrimination or whistle blowers lawsuit against Metropolitan. United States ex rel Scott, supra at 634. Plaintiff also began investigating her employer at work. Id. at 636-637. "The truck load of straw that broke the camel's back in terms of [one manager's] tolerance of Scott's personal investigation was Scott's treatment of audiotapes and minutes of the February 7, 2002 Metropolitan Enterprises Board meeting." Id. at 636. The tapes included tapes of a meeting of the Executive Committee of Metropolitan's Board. After that Board meeting, another manager caught plaintiff rifling through the manager's desk, looking for the tapes of the meeting, because plaintiff believed the drafted minutes were inaccurate. Id. The manager told plaintiff to return the tapes, but they were not returned. Id. Later, three tapes "showed up," in plaintiff's words, by "sheer luck," but one tape was, according to plaintiff, "lost." United States ex rel Scott, supra 637. On May 28, 2002, the manager received the minutes back from plaintiff (a while after they had been emailed to her), in amended form. The federal district court reviewed the evidence in detail, and concluded that plaintiff's changes misrepresented what was said at the meeting. Id. at 637-640. Plaintiff was placed on administrative leave, so that she could not interfere with an internal investigation concerning her allegations. Id. at 639. After plaintiff was placed on administrative leave, her counsel and Metropolitan's counsel discussed the location of the tapes and the alterations of the minutes. Plaintiff quoted a portion of what was said at the infamous meeting." Id. at 639. This caused a Metropolitan manger to ask plaintiff if she had the tapes. Plaintiff then admitted that she had a tape of the meeting, but refused to produce it. "It was not disclosed until Plaintiff's opposition brief filing [in the underlying case] on March 15, 2005, that Plaintiff, in fact, possessed all three tapes of the meeting." United States ex rel Scott, supra at 639. Metropolitan completed its investigation, which concluded in part that Scott should be terminated. Scott was given the opportunity to resign from Metropolitan with a severance package, through the vehicle of a "neutral" administrative reorganization. United States ex rel Scott, supra at 639-640. Plaintiff refused this offer, so Metropolitan terminated her. Id. at 640. Plaintiff then commenced the underlying action against Metropolitan in July 2002, in federal district court, alleging fraudulent billing by Metropolitan of Medicare claims (a qui tam claim) under the federal False Claims Act (FCA), 31 USC 3730(h). Plaintiff was the qui tam relator. Plaintiff also alleged that Metropolitan retaliated against her for disclosing fraudulent billings. Initially, plaintiff was represented by the law firm of Sommers Schwartz. However, plaintiff later fired Sommers Schwartz, and was thereafter represented by her husband, attorney Mark Scott, and the law firm of Frank Haron Weiner & Navarro. United States ex re Scott, supra at 627. The United States joined the lawsuit, after which The United States and Metropolitan settled the qui tam claim (for fraud upon Medicare). Plaintiff's qui tam relator fee was impounded, and her retaliation claim against Metropolitan remained.

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Following the settlement with The United States, Metropolitan filed a motion for partial summary judgment of the retaliation claim. United States ex rel Scott, supra at 627-628. The district court granted the motion. Id. at 649.1 The federal district court held that, even assuming that plaintiff could prove a prima facie case, summary judgment was warranted by the established record of plaintiff's misconduct: In this case, Plaintiff has admitted facts which establish beyond any genuine issue of material fact that she wrongly altered corporate records and that she withheld from the corporation tapes evidencing corporate minutes. The withholding of the tapes was not `protected conduct' . . . . Moreover, the alteration of the corporate minutes was not only bad conduct, it was a crime under Michigan and common law. [Id. at 646.] The federal district court also held that plaintiff failed to show that the reasons for her termination were pretextual, given her extensive misconduct: There is no evidence raise a serious doubt that the Board lacked a `reasonable belief' as to the manifold reasons for discharging Plaintiff

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