substantive limits
Authority: MCL 600.2955 - enacted in 1995
MRE 702 - adopted in 2003
Brief description: Adopts restrictions similar to those announced in the Federal Daubert case (not applicable in state courts) on the introduction of scientific opinion testimony.
Statutory provisions: Before allowing expert testimony, the court must make a finding that the opinion is reliable. The statute then sets forth a number of factors that the court is to apply in determining whether to admit the testimony, including whether it has been subjected to scientific testing, challenge, and proof. One of the factors is the extent to which it has been accepted in the relevant scientific community. Another is whether experts outside of the litigation sphere rely upon it. §2955(1)
A novel methodology must be shown to have achieved general scientific acceptance in the field before it may be used in the courtroom. §2955(2) Previous law: Before 1986, any expert testimony on medical or scientific issues could be
admitted so long as the court found that it would assist the jury in making its decision.
The broad discretion of the court was limited in cases where a novel scientific theory was advanced, under the Davis-Frye rule:
• Frye v United States, 54 US App DC 46, 47; 293 F 1013 (1923)
• People v Davis, 343 Mich 348, 370; 72 NW2d 262 (1955) Both cases involved the admissibility of the results of polygraph testing.
Commentary: This rule is a Michigan adoption of the Federal Daubert rule, which imposes a
“gatekeeper” requirement on courts to ensure that only reliable and sound scientific testimony is permitted to be considered by the jury. See
http://www.daubertontheweb.com/Chapter_2.htm for information on Daubert and its progeny.
The purpose of this section, like that of the Daubert rule, is to prevent the admission of unproven or hypothetical medical and scientific theories, often dubbed “junk science”.
The problem with the former practice is that a wide range of novel and untested theories could be offered, regardless of whether they had any scientific validity.
The law gave the courts no guidance on what could be admitted, with the result that virtually everything was fair game in many courtrooms, subject only to the Davis-Frye rule.
The position taken by the courts in response to those who criticized the wide-ranging rule favoring admissibility was that the defense could introduce its own evidence, in the form of testimony from its own expert witnesses or otherwise, to counter the plaintiff’s theories, and the jury would make its ruling after hearing both sides.
The problem with that approach is that juries do not have the level of knowledge or sophistication necessary to make sound determinations on matters of scientific validity. The Daubert rule in Federal courts and the §2955 rule in Michigan are based on the premise that judges are more capable of doing so.
The Davis-Frye rule focused solely on the issue of whether the validity of particular method of testing is “generally accepted”. This statute raises a number of factors for the court to apply to a wide range of issues.
The restriction imposed by §2169 is on who can testify as an expert on standard of care issues. This section limits what can be said by any expert witness. It typically applies to causation rather than to standard of care issues, but that is not necessarily the case.
Note that §2955 by its terms applies only to personal injury cases.
Evidence Rule: Rule 702 of the Michigan Rules of Evidence was amended in July 2003, effective January 1, 2004, to add the following to the general rule governing expert testimony in all cases:
[The court may allow an expert to testify] if:
(1) the testimony is based on sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.
In personal injury cases, it is not clear what the amendment of MRE 702 will accomplish that MCL 600.2955 does not already accomplish. The amendment will ensure that the rule applies to non-injury cases, including criminal
prosecutions as well as 1 -party no-fault claims. The court’s order amendingst MRE 702 makes no mention of §2955, interestingly enough.
Complications: For medical malpractice cases, the interplay between this section and §2169 (qualification of expert witness on standard of care) must be kept in mind. Note the express statement at the very end that this section does not affect the criteria specified under §2169.
As is the case in the Federal courts under Daubert, adding an affirmative requirement that trial judges make findings on issues of scientific validity of testimony is a very complicated task. Many currently serving trial judges originally took the job without having that requirement as part of the job description.
Cases applying:
Edry v. Adelman
486 Mich. 634, 786 NW 2d 567 (2010)
Expert gynecologist who based opinion on web sites, and who claimed to refer to but could not produce peer-reviewed articles, found not qualified to offer opinions on cancer growth rates.
Morgan v Bediako
Court of Appeals (unpub 2010)
A trial judge need not conduct a separate evidentiary hearing as to the reliability of an expert's opinion testimony so long as he or she provides a "searching inquiry" and "thoughtful analysis."
Clerc v. Chippewa County War Memorial Hospital, 267 Mich App 597; 705 NW2d 703 (2005), remanded in part 477 Mich 1067 (2007)
Order granting summary disposition reversed. The trial court failed to conduct an adequate hearing on the validity of the scientific evidence offered (staging in a cancer case). Unlike the Davis-Frye rule, MRE 702 does not apply only to novel scientific theories.
Craig v Oakwood Hospital,
249 Mich App 534; 643 NW2d 580 (2002) 471 Mich 67 (2004)
Court of Appeals:
A Davis-Frye hearing is not necessary for testimony not involving a novel scientific issue.
Supreme Court:
Whenever the defendant requests a hearing on the scientific validity of the plaintiff's offered testimony, the court must hold it. There is no burden on the defendant to establish (or even to make a preliminary showing that there is reason to believe) that the theory espoused by plaintiff is not scientifically valid. (Issues decided under the old version of MRE 702, not under §2955, but still instructive.)
Gilbert v DaimlerChrysler Corp., 470 Mich 749 (2004)
The trial court erred in admitting the testimony of a social worker on issues relating to the effect of acts of sexual harrassment on the plaintiff's brain chemistry and overall medical health. The court must evaluate and approve the methodology followed by the witness because, if it does not, "ostensibly legitimate data may serve as a Trojan horse that facilitates the surreptitious advance of junk science and spurious, unreliable opinions". (Also decided under MRE 702, rather than §2955.)
Longhini v Michigan Medical, P.C., Court of Appeals (unpub 2004)
An expert may testify about an alternative theory of causation if it is a possibility; he need not assert that it is the true theory. The court must focus on the methodology used, not the expert's conclusion, in applying
§2955.
Safeco Insurance Company v Carrier Corporation Court of Appeals (unpub 2003)
Plaintiff's expert electrical engineer found not qualified to offer expert opinion testimony as to safer alternative designs for furnace circuit boards where he failed to adequately examine or test either the original or proposed alternatives by disassembly, recreating the failure, or analyzing and comparing the components and their properties. Opinion found not reliable.
"The plain language of the state establishes the Legislature's intent to assign the trial court the role of determining pursuant to the Daubert criteria, whether proposed scientific opinion is sufficiently reliable for jury consideration." The legislature enacted MCL 600.2955(1) "in an apparent effort to codify the United States Supreme Court's holding in Daubert."
Special commentary on McDougall
The decision of the Supreme Court in McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999), upholding the constitutionality of §2169, would seem to apply in full force to this section as well, for the same reasons.
The Supreme Court's reversal of the Court of Appeals’s constitutionality ruling in McDougall far overshadowed the other holding by the Court of Appeals panel in that case. In addition to holding that the 1993 medical malpractice expert witness statute was unconstitutional, the majority held (before the 1995 amendments which introduced §2955) that trial judges already had a responsibility under MRE 702, similar to the Daubert standard in Federal courts, to act as "gatekeepers" and to ensure that all expert scientific testimony offered at trial is reliable. This portion of the opinion imposed upon Michigan judges, under MRE 702, an obligation to ensure the reliability of expert scientific testimony, albeit without the requirement of a formal hearing for each and every scientific expert witness as §2955 requires. Other appellate panels in the Court of Appeals subsequently accepted this idea, as well. See, for example, Nelson v American Sterilizer (on remand), 223 Mich App 485; 566 NW2d 671 (1997), in which the court affirmed as inadmissible testimony by the plaintiff's treating physicians that exposure to a certain toxin caused his condition because the animal studies on which those opinions were based were too inconclusive to justify that conclusion, and thus the testimony was not admissible as expert opinion based upon "recognized scientific knowledge."
Now that §2955 has been adopted, effective in 1996, the courts have that duty as a matter of statute, and they are required to make the findings set forth in the statute as to each proposed expert who is challenged by the opponent.
The holding of the Court of Appeals panel, however, would still have validity in cases other than those “for injury to a person”.
Further, as noted above, MRE 702 was itself amended, effective January 1, 2004, to place similar obligations on the judge in cases in which §2955 does not apply, including first-party no-fault claims.