MCDOUGALL v SCHANZ; SOBRAN v MCKENDRICK
Docket Nos. 107956, 110707
Supreme Court of Michigan
July 30, 1999
461 Mich 15
Argued May 5, 1999 (Calendar Nos. 1-2).
John R. and Carole S. Sobran brought a medical malpractice action in the Oakland Circuit Court against Alasdair McKendrick, M.D. The trial court, Robert C. Anderson, J., excluded testimony of the plaintiffs’ expert on the basis of
In an opinion by Justice YOUNG, joined by Chief Justice WEAVER, and Justices BRICKLEY and CORRIGAN, the Supreme Court held:
- It is beyond dispute that the Legislature envisioned and intended that
MCL 600.2169 ;MSA 27A.2169 often will compel different qualification determinations than MRE 702 when applied to a given case. While MRE 702 authorizes expert testimony on the basis of knowledge, skill, experience, training, or education, § 2169 operates to preclude certain witnesses from testifying solely on the basis of their lack of practice or teaching experience in the relevant specialty. Anyone qualified by virtue of the MRE 702 criteria of skill, training, or education nonetheless could be excluded under the statute‘s strict practice or teaching requirements. - Under
Const 1963, art 6, § 5 , the Supreme Court‘s constitutional rule-making authority extends only to matters of practice and procedure, not to enactment of court rules that establish, abrogate, or modify the substantive law. A statutory rule of evidence violatesConst 1963, art 6, § 5 only when no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified. Therefore, if a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration, the court rule should yield. Section 2169 is an enactment of substantive law, reflecting wide-ranging and substantial policy considerations relating to medical malpractice actions against specialists, not the mere dispatch of judicial business.
McDougall, reversed.
Sobran, affirmed in part.
Justice TAYLOR joined Justice YOUNG in Sobran only, and took no part in the decision in McDougall.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that
The authority to determine rules of procedure in judicial matters rests exclusively with the judiciary and the Supreme Court. The Legislature enacted
When confronted with a conflict between a court rule and a statute, the rule, properly enacted within its own domain, must prevail. The drafters of the Michigan Constitution squarely considered
Granzotto & Nicita, P.C. (by Mark Granzotto), Justin C. Ravitz, and Lakin, Worsham & Victor, P.C. (by Sanford N. Lakin and Ron S. Kirsch), for the plaintiff in McDougall.
Granzotto & Nicita, P.C. (by Mark Granzotto), for the plaintiffs-appellants in Sobran.
O‘Leary, O‘Leary, Jacobs, Mattson, Perry & Mason, P.C. (by John P. Jacobs), for defendant-appellant Reuben D. Eliuk, D.O.
O‘Leary, O‘Leary, Jacobs, Mattson, Perry & Mason, P.C. (by John P. Jacobs and Kevin P. Hanbury), for defendant-appellee Alastair McKendrick, M.D.
Amici Curiae:
Dickinson, Wright, P.L.L.C. (by John E.S. Scott, Robert W. Powell and Jeffery V. Stuckey), and Hugh F. Young, Jr., for Product Liability Advisory Council, Inc.
Bendure & Thomas (by Mark R. Bendure and Kevin P. Kavanagh), Sachs, Waldman, O‘Hare, Helveston, Bogan & McIntosh, P.C. (by Andrew A. Nickelhoff), and Jordan Rossen and Thomas C. Carey, for AFL-CIO and UAW.
Thomas K. Byerley for State Bar of Michigan.
Granzotto & Nicita, P.C. (by Angela J. Nicita), for Michigan Trial Lawyers Association, Michigan Consumer Federation, Citizens for Better Care, and Brain Injury Associations of Michigan.
Kitch, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman, Linda M. Garbarino, and Christina A. Ginter), for Michigan Health and Hospital Association.
Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), for PICOM Insurance Company.
Gross, Nemeth & Silverman, P.L.C. (by James G. Gross), for Michigan Defense Trial Counsel.
Kerr, Russell & Weber, P.L.C. (by Richard D. Weber and Joanne G. Swanson), for Michigan State Medical Society.
OPINION OF THE COURT
YOUNG, J. We granted leave to appeal in these consolidated cases to determine whether
A. MCDOUGALL
Plaintiff‘s wife, Sandra McDougall, became ill on August 27, 1990. As a result, Mrs. McDougall visited her family physician who confirmed Mrs. McDougall‘s belief that she was pregnant. Mrs. McDougall was then referred to an obstetrician-gynecologist, but was eventually sent home. The next day, Mrs. McDougall went to Garden City Hospital complaining of nausea, vomiting, and troubled breathing. She was treated by defendant Reuben Eliuk, D.O., a specialist in internal medicine. However, Mrs. McDougall died, allegedly from resultant complications of undiagnosed diabetes.
In 1991, plaintiff brought suit against Dr. Eliuk, the hospital, and several other physicians. Plaintiff offered Glen Mark Robia, M.D., as his expert to establish the standard of care owed by Dr. Eliuk. Like Dr. Eliuk, Dr. Robia is also board certified in internal medicine. However, he has not practiced in this field for some time. Primarily, Dr. Robia works as a pathologist (as well as serving as chief of staff of a small hospital) and county coroner in Minnesota, where he lives. Dr. Robia testified in his deposition that his full-time, active practice of internal medicine began in 1979 and ended in 1982.1
The trial court granted Dr. Eliuk‘s motion in limine to exclude Dr. Robia‘s testimony on the ground that Dr. Robia was not qualified under
(1) In an action alleging medical malpractice, if the defendant is a specialist, a person shall not give expert testimony on the appropriate standard of care unless the person is or was a physician licensed to practice medicine or osteopathic medicine and surgery or a dentist licensed to practice dentistry in this or another state and meets both of the following criteria:
(a) Specializes, or specialized at the time of the occurrence which is the basis for the action, in the same specialty or a related, relevant area of medicine or osteopathic medicine and surgery or dentistry as the specialist who is the defendant in the medical malpractice action.
(b) Devotes, or devoted at the time of the occurrence which is the basis for the action, a substantial portion of his or her professional time to the active clinical practice of medicine or osteopathic medicine and surgery or the active clinical practice of dentistry, or to the instruction of students in an accredited medical school, osteopathic medical school, or dental school in the same specialty or a related, relevant area of health care as the specialist who is the defendant in the medical malpractice action.
(2) In determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following:
(a) The educational and professional training of the expert witness.
(b) The area of specialization of the expert witness.
(c) The length of time the expert witness has been engaged in the active clinical practice or instruction of medicine, osteopathic medicine and surgery, or dentistry.
(d) The relevancy of the expert witness‘s testimony.
(3) This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section. [
MCL 600.2169 ;MSA 27A.2169 .]2
The Court of Appeals affirmed in part and reversed in part. 218 Mich App 501; 554 NW2d 56 (1996). The Court of Appeals majority determined that § 2169 conflicts with MRE 702 and, moreover, that the statute is an unconstitutional violation of this Court‘s rule-making authority. Judge TAYLOR dissented, arguing that, because § 2169 is “more akin to a substantive law than a procedural rule,” id. at 516, it takes precedence over MRE 702. We granted leave to appeal. 456 Mich 905 (1997).
B. SOBRAN
Plaintiff5 John Sobran was diagnosed with colon cancer in 1976. That same year, plaintiff‘s personal
Dr. Fox performed a sigmoidoscopy7 on September 14, 1992. As a result, Dr. Fox found polyps blocking plaintiff‘s intestinal tract. He performed surgery in January 1993 and successfully removed the polyps.
Plaintiff filed a medical malpractice suit against defendant, alleging that defendant should have performed a sigmoidoscopy in 1991. Plaintiff claimed that, had defendant done so, he would have discovered the polyps over a year before the examination performed by Dr. Fox.
Plaintiff offered Dr. Mark Caminker as his expert to establish the standard of care owed by defendant. While Dr. Caminker is board certified in internal medicine and gastroenterology he is not a colorectal surgeon. However, Dr. Caminker testified in his deposition that internists and surgeons follow the same standards of care for the diagnosis of gastrointestinal
Shortly before trial was scheduled to begin, defendant sought to exclude Dr. Caminker‘s proffered expert testimony. Defendant argued in relevant part that Dr. Caminker was not qualified under
Plaintiff appealed to the Court of Appeals, raising the constitutionality of
II. STANDARD OF REVIEW
The constitutionality of § 2169 presents a question of law. We review questions of law de novo. Cardinal Mooney High School v Michigan High School Athletic Ass‘n, 437 Mich 75, 80; 467 NW2d 21 (1991). Also rel-
III. ANALYSIS
A. DO § 2169 AND MRE 702 CONFLICT?
We first consider whether § 2169 and MRE 702 can be construed so as not to conflict, thus making it unnecessary to reach the constitutional question. When there is no inherent conflict, “[w]e are not required to decide whether [the] statute is a legislative attempt to supplant the Court‘s authority.” People υ Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996). “We do not lightly presume that the Legislature intended a conflict, calling into question this Court‘s authority to control practice and procedure in the courts.” People v Dobben, 440 Mich 679, 697, n 22; 488 NW2d 726 (1992).
According to defendants, § 2169 and MRE 702 do not conflict. Rather, defendants in both cases maintain that the statute serves merely to aid the court in applying the rule and that the ultimate decision whether to admit expert testimony rests with the trial court. We cannot agree with defendants’ characterization of the relationship between § 2169 and MRE 702.
While MRE 702 authorizes expert testimony on the basis of “knowledge, skill, experience, training, or education,” the statute operates to preclude certain witnesses from testifying solely on the basis of the
Finally, it appears beyond dispute that the Legislature envisioned and intended that the statute would often compel different qualification determinations than the rule when applied to a given case. As Judge TAYLOR noted in his dissent in McDougall, the Legislature became dissatisfied with the manner in which some courts were exercising their discretion regarding expert testimony, and enacted a statute designed to limit that discretion.9 Accordingly, given that
B. CONST 1963, ART 6, § 5
It is beyond question that the authority to determine rules of practice and procedure rests exclusively with this Court. Indeed, this Court‘s primacy in such matters is established in our 1963 Constitution:
The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.10
This exclusive rule-making authority in matters of practice and procedure is further reinforced by separation of powers principles. See
At the same time, it cannot be gainsaid that this Court is not authorized to enact court rules that establish, abrogate, or modify the substantive law. Shannon v Ottawa Circuit Judge, 245 Mich 220, 223; 222 NW 168 (1928). Rather, as is evident from the plain language of
C. SECTION 2169: A MATTER OF SUBSTANTIVE LAW OR PROCEDURE?
We are faced in these cases with a statutory provision that undoubtedly acts as a rule of evidence.
Plaintiffs in both cases, along with the dissent, simply contend that all “rules of evidence” are procedural in nature. Therefore, plaintiffs argue, because § 2169 purports to govern the admissibility of standard of care testimony in medical malpractice actions involving specialists, it represents an impermissible infringement on this Court‘s rule-making power. As would be expected, plaintiffs rely primarily on this Court‘s decision in Perin.
In Perin, this Court considered the validity of a statute prohibiting the admission in any civil action of evidence relating to a violation of the motor vehicle code.13 The Court found the statute to be of no effect to the extent that it conflicted with longstanding rules of evidence relating to impeachment of witness credibility. In doing so, the Perin Court declared that this Court‘s constitutional authority regarding practice and procedure “include[s],” of course, the “rules of evidence“:
“The judicial function constitutionally empowers the courts to make their own rules of procedure, including rules of evidence (subject only to specific constitutional limitations). Virtually all of the original rules of evidence were invented by the courts. . . .
“In recent times, the just prerogative of the courts to make their own rules of procedure has been vindicated in professional opinion; and a healthy movement to relegate generally procedure to the courts has long been under way. That this prerogative of the courts includes the power to formulate and to alter the rules of evidence ought not to be doubted.” [Id. at 541-542 (emphasis in original; citation omitted).]
However, as authority for this proposition, the Perin Court relied, not on an analysis of the text of
However, we now recognize that the Perin Court failed to consider the constitutionally required distinction between “practice and procedure” and substantive law and thus overstated the reach of our rule-making authority. We will not continue mechanically to characterize all statutes that resemble “rules of evidence” as relating solely to practice and procedure. Such an analysis merely begs the question what makes a particular “rule of evidence” procedural as opposed to substantive in nature. We instead adopt a more thoughtful analysis that takes into account the undeniable distinction “between procedural rules of evidence and evidentiary rules of substantive law. . . .” Golden v Baghdoian, 222 Mich App 220, 225; 564 NW2d 505 (1997) (emphasis in original). This
We conclude that a statutory rule of evidence violates
[m]ost rules of evidence have been made by courts. Now and then the legislature has, as a result of policy consideration over and beyond matters involving the orderly dispatch of judicial business, enacted rules of evidence. The distinction previously pointed out between policy considerations involving the orderly dispatch of judicial business on the one hand and policy considerations involving something more than that on the other hand is the distinction that must be carried through into the evidence field. [Id. at 650-651.]16
We conclude that this common-sense approach properly gives effect to the constitutionally required distinction between “practice and procedure” and substantive law. While we acknowledge that the analytical exercise required will not always be an easy one, it certainly is not novel. In People v McKenna, 196 Colo 367, 371-372; 585 P2d 275 (1978), the Colorado Supreme Court, applying a provision of the Colo-
Plaintiffs argue, and the dissent agrees, that the drafters of our 1963 Constitution manifested their intent that the Legislature not be permitted in any fashion to intrude upon this Court‘s power to determine “rules of evidence” when the drafters considered and rejected the following proposed amendment of
The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts in the state, it being provided that where there is a conflict between supreme court rule and a statute concerning evidence or substantive law the statute shall prevail. [1 Official Record, Constitutional Convention 1961, p 1289.]18
Plaintiffs also direct our attention to the following comments made by Delegate Robert J. Danhof in opposition to the proposed amendment:
Rules of evidence have historically been made by the courts over the years. They have developed through usage, through practice, through various cases, and with but very few exceptions except as relates to presumptions and privileges, the rules of evidence as to what may be introduced are and should continue to be a court function. The legislature may write statutes as they relate to the substantive law, but the rulemaking power of the court as it relates to the admission of evidence should not be limited, as this would do.
Again we have here something which shows a consistent pattern to endeavor to restrict and tie in knots the administration of justice in the operation of our supreme court. I think too often we tend to let the personalities of the court personnel interfere with our consideration of the system. If there is one thing this committee should do, it is to try to set up a good system, and then find ways by which we can staff the system by the fairest means. Every single authority in the field of administration of court decisions has held that the power of rulemaking over evidence, and so on, and practice and procedure should not be tampered with. [Id.]
By quoting only select portions of the convention debates, plaintiffs and the dissent have mischaracterized the thrust of the debates regarding the proposed amendment. The delegates opposing the amendment expressed concern that it undercut this Court‘s rule-making authority over practice and procedure by deeming all rules of evidence to be substantive law and thus the province of the Legislature. Even the delegates opposing the amendment recognized that rules of evidence can be procedural, substantive or a combination of both. One of the amendment‘s primary opponents, Delegate William D. Ford, explained:
When we are talking about the lines between substantive law and procedural law, not all of us are as positive as
[Delegate Ann E.] Donnelly that we know when we cross over this line from one to the other.
*
*
*
And the danger we see in trying to create this distinction as if it were a clear cut line between the 2 is that we are opening the door for all sorts of litigation to start confusing the future rulemaking power of the court . . . . [Id. at 1291.]
Another opponent, Delegate Melvin Nord, also acknowledged that there may indeed be a distinction between substantive and procedural rules of evidence:
Now, the question I was asked by [Delegate Eugene G.] Wanger is a very tough question, that is to say, should evidence be counted as procedure or not. Normally it is. Possibly there are some rules that should not be. We know that it is a difficult line between procedure and substantive in some cases. And, as a matter of fact, the same subject matter will sometimes be called substantive and sometimes procedural depending on the context. [Id. at 1292 (emphasis added).]
Delegate Nord further summarized his concerns:
The question that has never really been determined at all is how far this word “procedure” goes. There we are shooting out into the dark. Now, in my opinion, if we attempt to settle this question here, then we change our minds from where we were a few days ago. A few days ago we said the judicial power shall be exclusively in the court, and now we are saying, basically, it shall be exclusively in the constitutional convention, that we are going to determine in advance everything that is procedural and everything that isn‘t. We are going to make up our minds now [by approving the proposed amendment] that all evidence is not procedural. [Id.]
Applying the substance/procedure analysis set forth above, we conclude that § 2169 is an enactment of substantive law. It reflects wide-ranging and substantial policy considerations relating to medical malpractice actions against specialists. We agree with the Court of Appeals dissent in McDougall that the statute
reflects a careful legislative balancing of policy considerations about the importance of the medical profession to the people of Michigan, the economic viability of medical specialists, the social costs of “defensive medicine,” the availability and affordability of medical care and health insurance, the allocation of risks, the costs of malpractice insurance, and manifold other factors, including, no doubt, political factors—all matters well beyond the competence of the judiciary to reevaluate as justiciable issues. [218 Mich App 518 (TAYLOR, P.J., dissenting).]
Clearly then, the statute does not involve the mere dispatch of judicial business.19
IV. CONCLUSION
We appreciate the difficulty that attends the drawing of the line between “practice and procedure” and substantive law. That the task is difficult and one that must be made on a case-by-case basis is no legitimate challenge to our constitutional duty to draw that line in a fashion that respects this Court‘s constitutional authority as well as that of the Legislature. The rule we adopt today recognizes the difficulty inherent in
Finally, despite the dissent‘s apparent anxiety about our supposed lack of fidelity to the protection of “judicial turf,” we merely note that it is ultimately this Court that will determine in each instance where the substance/procedure line must be drawn.
We conclude that
In McDougall, we reverse the judgment of the Court of Appeals and reinstate the trial court‘s grant of summary disposition in favor of defendant Eliuk.
In Sobran, the Court of Appeals relied on
WEAVER, C.J., and BRICKLEY and CORRIGAN, JJ., concurred with YOUNG, J.
TAYLOR, J., concurred with YOUNG, J., in Sobran only, and took no part in the decision in McDougall.
CAVANAGH, J. (dissenting). We are called on to determine whether the statutorily provided restrictions on expert witnesses in medical malpractice actions,
I
A
At issue in these cases is the interaction of the statute in question,
The original version of the statute at issue, the 1986 version, reads as follows in the relevant section:
(1) In an action alleging medical malpractice, if the defendant is a specialist, a person shall not give expert testimony on the appropriate standard of care unless the person is or was a physician licensed to practice medicine or osteopathic medicine and surgery or a dentist licensed to practice dentistry in this or another state and meets both of the following criteria:
(a) Specializes, or specialized at the time of the occurrence which is the basis for the action, in the same specialty or a related, relevant area of medicine or osteopathic medicine and surgery or dentistry as the specialist who is the defendant in the medical malpractice action.
(b) Devotes, or devoted at the time of the occurrence which is the basis for the action, a substantial portion of his or her professional time to the active clinical practice of medicine or osteopathic medicine and surgery or the active clinical practice of dentistry, or to the instruction of students in an accredited medical school, osteopathic medical school, or dental school in the same specialty or a related, relevant area of health care as the specialist who is the defendant in the medical malpractice action. [
MCL 600.2169 ;MSA 27A.2169 .]
(1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who
is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
(c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed. [
MCL 600.2169 ;MSA 27A.2169 .]
As noted, this Court has long provided a court rule,
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. [
MRE 702 .]
The constitutional doctrine of separation of powers in Michigan can be traced to our first constitution, which predated even our statehood.1 Since then, it has continued to be embodied in each of our successive state constitutions.2 It is found in our current constitution:
The powers of the government are divided into three branches; legislative, executive and judicial. No person exercising the powers of one branch shall exercise the powers properly belonging to another branch except as expressly provided in this constitution. [
Const 1963, art 3, § 2 .]
Writing for this Court, Justice COOLEY offered the following analysis of the basis of this doctrine, and reasoning to which the intervening years and decisions have had little to add:
Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is for-
bidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties. [Sutherland v Governor, 29 Mich 320, 324-325 (1874).]
Until today, we have found no reason to depart from this longstanding doctrine in our recent decisions. As we have noted, “an indispensable ingredient of the concept of coequal branches of government is that ‘each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches.‘” Employees & Judges of the Second Judicial Dist Court v Hillsdale Co, 423 Mich 705, 717; 378 NW2d 744 (1985).
C
As a prelude to the analysis of the instant case, I note that, heretofore, it has been without question that the authority to determine rules of procedure in judicial matters rests exclusively with the judiciary and this Court. As we noted in Perin v Peuler (On Rehearing), 373 Mich 531, 541-542; 130 NW2d 4 (1964), this rule-making authority can be traced from our earlier constitutions3 to its present inception:
The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be abolished. The office of master in chancery is prohibited. [
Const 1963, art 6, § 5 .]
In our prior cases as well, beginning long before Perin, we have held that, where a statute and court rule conflict, the court rule shall control, absent the sort of acquiescence alluded to in Perin. Berman v Psiharis, 325 Mich 528, 533; 39 NW2d 58 (1949); In re Koss Estate, 340 Mich 185, 189-190; 65 NW2d 316 (1954).6
While such an acquiescence to a statute that intrudes upon a court rule has not been often forthcoming, I note that, on occasion, this Court has side-stepped issues such as this, and because such occasions are now offered by the defendant and the dis-
In People v Daniels, 394 Mich 524; 232 NW2d 171 (1975), a memorandum opinion, we held that a statute dealing with one situation would be given precedence over a court rule dealing with another situation, both of which concerned the availability of a personal recognizance bond, when both applied to the same individual. It is fair to say that over the course of the three paragraphs that comprise Daniels, this Court did not consider the constitutional question raised here today.
More recently, in People v Adair, 452 Mich 473; 550 NW2d 505 (1996), we were called on to interpret our rape-shield statute.7 We were not, however, presented with the constitutional question we face today. Indeed, while we have adopted a court rule dealing with some aspects of the rape-shield statute,8 and
Although we did little more than note the potential conflict that appeared on the face of the statute, it is fair to say that our opinion on this point has resulted in some disagreement and academic debate regarding how we intended to address this conflict.11 Today we find the defendants arguing that our approach in Adair amounted to a silent acquiescence, and thus a “softening” of our view of legislative enactments that intrude into court rules. While it appears that open questions may remain concerning the interaction of
D
It is equally true, however, that we must be mindful of the fact that separation of powers requires not only that we dutifully guard against an encroachment on the powers granted to this Court, but also requires, with equal and compelling force, that we dutifully respect those powers granted to the other branches of government and abstain from any exercise thereof. It is this delicate balance that has led us to respect, to every extent possible, the enactments of the other branches, and, where reasonably and realistically possible, to find no conflict should such an interpretation be possible. Accordingly, we have, where possible, read enactments of the Legislature that presented a potential conflict with our court rules in a fashion that would allow both provisions to exist in harmony. See People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), People v Mateo, 453 Mich 203; 551 NW2d 891 (1996).
Where it can be said that there is no inherent conflict between the legislative enactment and the judiciary‘s rule, “[w]e are not required to decide whether [the] statute is a legislative attempt to supplant the Court‘s authority.” Mateo at 211. “We do not lightly presume that the Legislature intended a conflict, calling into question this Court‘s authority to control practice and procedure in the courts.” People v Dobben, 440 Mich 679, 697, n 22; 488 NW2d 726 (1992). Mindful of these constraints, I proceed to the cases at hand.
II
MCDOUGALL
A
This case arrives before us in a somewhat unique fashion. While, as noted throughout this opinion, questions of conflict between statutes and court rules appear before us from time to time, the genesis of this conflict is unusual. Previously, we generally have been presented with questions of conflict where a court rule was alleged to be in conflict with some statute that existed before its enactment. On other occasions, such as Berman, supra, it would appear that such conflict was inadvertent in nature, with the conflict itself appearing only when the provisions actually interacted in the course of a dispute. Here, however, we find the Legislature enacted
Indeed, the very problem at issue today was also presented to the Legislature. In the report of the House Legislative Analysis Section on HB 5169, pp 2-3, issued November 20, 1985, under the section entitled “Arguments Against,” it was stated:
The determination of the qualifications of witnesses in trial court proceedings falls within the exclusive jurisdiction of the courts and may not be invaded by the legislature. The Michigan Court Rules already require that an expert be qualified before he or she may testify, and it is always within the court‘s discretion to disqualify a witness. [Id. at 3.]
In such a case, given the clear intent of the Legislature, and its awareness of the conflict, our reluctance to find a conflict and desire to, as much as possible, respect the enactments of our coequal branch, must face the reality of a conflict apparent in both intent and the facts before us.
The trial court ruled Dr. Robia was disqualified under
Moreover, while, at times, we have been able to find a statute to amount to no more than a restatement, in different form, of a court rule or rules, i.e., Mateo, it is important that the entire thrust of this rule is exclusionary in nature.
Finally, that there is a conflict is so precisely because, as noted above, the statute was drafted to accomplish this purpose. As was noted in the dissent below,15 the Legislature became unsatisfied with the manner in which some courts were exercising their discretion regarding expert testimony, and enacted a statute designed to limit such discretion. In accomplishing such intent, the wording of the statute was successful, and belies the attempts by defendant to now suggest that it is but an aid to such discretion. There can be no evasion of a conflict in this case, and thus I agree with the majority on this point.
B
When confronted with a conflict between a court rule and a statute, the invariable question is which should control. As we have stated, the nearly invariable rule (until today), required by the doctrine of sep-
In the course of the constitutional convention, there was debate over what would become
The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts in the state, it being provided that where there is a conflict between supreme court rule and a statute concerning evidence or substantive law the statute shall prevail. [1 Official Record, Constitutional Convention 1961, p 1289 (the emphasized language was not adopted in the final document).]
Clearly, were such language adopted, it would have amounted to an express endorsement of the result sought by defendants. The result, however, after
C
It was argued below, however, and now is accepted by the majority today, that this statute addresses a substantive, as opposed to procedural, concern, and, thus, it is within the domain of the Legislature in any event, with citation below to Smith v Smith, 433 Mich 606; 447 NW2d 715 (1989).19 While, as noted below, that case lacked a majority opinion, there is no dispute of the basic proposition for which it was apparently cited, that the Legislature alone controls substantive law making. See note 18. The actual dispute in Smith centered on the interaction of two statutes:
Relevant to the question before us today, the Smith majority‘s decision resulted in a reading of the statutes that conflicted with
The argument then goes, as offered both in dissent below, and by the majority today, that the statutes herein amount to substantive law determinations and are thus within the province of the Legislature. As noted, there is no dispute that, were the antecedent true, the logic of the analysis would follow.21 Without
It was offered in dissent below that because the statute herein “constitutes a substantive change in a statutory cause of action that originated from the common law, which the Legislature is authorized to effect, it takes precedence over
It has long been held (again, no more so as of today) that “[t]he judicial function constitutionally empowers the courts to make their own rules of procedure, including rules of evidence . . . .” Perin, 373 Mich 541 (emphasis deleted).23 A primary theme
D
The majority, rather than examining Smith, seems content to merely attack Perin as ill-grounded.24
“The judicial function constitutionally empowers the courts to make their own rules of procedure, including rules of evidence (subject only to specific constitutional limitations).” [Perin at 541 (emphasis added).]
What then was the Court speaking of in its citation of constitutional limitations, but the very prohibition of substantive lawmaking unquestionably endorsed by the delegates of our last constitutional convention (and recognized by this Court and many others long before)? And yet today we see the majority reveling in this limitation as though it is both a basis for its decision and a revelation to the rest of the world, that somehow strayed from the path of light. There is a tendency among those who walk under a standard espousing such views to attribute every past decision with which they disagree to a failure to share their enlightenment, and, equally, a zeal evidenced to, with much dispatch, overrule all such prior decisions as simply wrong. The debate is not so simple, nor those who came before us so unenlightened, as we are led to believe by the majority herein.
While the majority would chastise Perin for its citation of Wigmore, the majority‘s citation of a Court of Appeals opinion of recent vintage and identical authorship as the majority opinion is hardly more persuasive. The remainder of the authority offered for the proposition advanced is a 1957 law review article and dicta offered by Justice WILLIAMS in Kirby v Larson, 400 Mich 585, 598; 256 NW2d 400 (1977), in a portion of his opinion that failed to garner the allegiance of a majority of the Court. While certainly not disputing the esteem of the latter author, I fear the majority has misconstrued both Justice WILLIAMS’ words and his meaning.
While the Kirby Court decided the case on very distinct grounds, Justice WILLIAMS offered a considerably broader opinion, joined only by two other justices, suggesting, inter alia, that a statute prohibiting the admission of evidence of a conviction for violation of the motor vehicle code (or similar local ordinances) in any civil action was invalid as being con
Thus, since admissibility of a traffic ticket is an evidentiary question, the court rule supersedes the statute. As suggested in 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 404, “Because no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified,”7 section 731 should be construed simply as a statutory rule of practice, validly superseded by Rule 607 to the extent applicable.”
[400 Mich 598.]
Thus, viewing the entire text of this discussion, several things can be seen. First, of course, this discussion had its genesis in the commercial annotations offered to the court rules of the time by the authors noted. Second, while speaking of the inability to identify policy considerations other than judicial dispatch, the annotation authors themselves identified two distinct potential, albeit “not clear,” policy considerations, one the majority today would likely argue could be within the legislative realm.25 Third, and most
In Kirby, Justice WILLIAMS suggested that no legislative policy other than judicial dispatch could be found to support the statute, even though he himself then, in footnote 7, cited Honigman & Hawkins as suggesting two such rationales. What the majority says today, however, stands that quotation on its head: “only when ‘no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified‘,” (ante at 30) will we find a statute to be unconstitutional. So, if a statute and a court rule conflict, and the matter is one concerning solely judicial dispatch of litigation, then the court rule must control. But if the statute has as its rationale a policy choice regarding anything other than
So we must wonder exactly how many of our court rules deal with items that might evoke considerations other than judicial dispatch, and thus be subject to alteration on the basis of those considerations, evidencing decisions of “substantive” law by the Legislature. As a starting point, it is worth recalling that judicial dispatch is generally taken to be somewhat synonymous with judicial efficiency. Presuming a definition of judicial unnecessary in this context, we find that the word dispatch refers, again in this context, to the prompt or speedy transaction or disposal of matters:
Dispatch (di spach‘) v.t. 1. to send off or away with speed, as a messenger, telegram, body of troops, etc. 2. to dismiss (a person), as after an audience. 3. to put to death; kill: The spy was promptly dispatched. 4. to transact or dispose of (a matter) promptly or speedily. —v.i. 5. Archaic. to hasten; be quick. —n. 6. the sending off of a messenger, letter, etc., to a destination. 7. the act of putting to death; killing; execution. 8. prompt or speedy transaction, as of business. 9. expeditious performance; promptness, or speed: Proceed with all possible dispatch. 10. Com. a. a method of effecting a speedy delivery of goods, money, etc. b. a conveyance or organization for the expeditious transmission of goods, money, etc. [The Random House Dictionary of the English Language, Second Edition Unabridged, p 567 (emphasis added).]28
So, then, the majority offers us a rule today that says, where matters of judicial efficiency alone are at hand, the judiciary is supreme. However, where other concerns might arise, and might implicate policy decisions that the majority has, by focusing solely on the Legislature‘s abilities in such regard (and ignoring the proper place of such concerns in our own regulation of judicial matters), left now solely to the Legislature, it must be “substantive,” and our court rules will suffice only until the Legislature speaks, at which time, the rules must yield.
Thus, if this is to be the rule, we should consider exactly what of our court rules might deal solely with concerns of judicial dispatch, and thus be insulated from legislative intrusion, and which might reflect those policy considerations that the majority now finds, even within the context of regulating our own,
Is there a substantive policy question about when court-appointed experts are required, or how they should be compensated?
The point of this discussion is not to invite the Legislature to discover that the majority has knocked down the fence that has separated our branches until this day, nor not to invite it to graze upon those of our court rules it wishes to modify. The effect of the majority‘s decision, however, is to invite the Legislature to trample whatever rules of the judiciary might arguably concern something other than judicial efficiency, and the majority‘s decision herein offers so little to support its conclusion that the matter discussed today is substantive that it invites legislative “questions” far more fanciful than the ones above.
Recall again what it is that the majority finds persuasive in holding that the instant matter is substantive. Consider:
Applying the substance/procedure analysis set forth above, we conclude that § 2169 is an enactment of substantive law. It reflects wide-ranging and substantial policy considerations relating to medical malpractice actions against specialists. We agree with the Court of Appeals dissent in McDougall that the statute
“reflects a careful legislative balancing of policy considerations about the importance of the medical profession to the people of Michigan, the economic viability of medical spe
cialists, the social costs of ‘defensive medicine,’ the availability and affordability of medical care and health insurance, the allocation of risks, the costs of malpractice insurance, and manifold other factors, including, no doubt, political factors—all matters well beyond the competence of the judiciary to reevaluate as justiciable issues. [218 Mich App 518 (TAYLOR, P.J., dissenting).]” Clearly then, the statute does not involve the mere dispatch of judicial business. [Ante at 35.]
Therein, we see the key to the majority‘s decision, a key that flings open the door that has previously separated our branches of government. All the Legislature need do is determine some questions outside the “mere dispatch of judicial business,” and the Court‘s own regulation of its own judicial function may be cast aside. As demonstrated above, many, perhaps most, of our court rules are susceptible to questions being found under as flexible and one-sided a “test” as the majority gives us today.
Very shortly after he authored the Kirby decision and dicta, Justice WILLIAMS joined a unanimous Court in taking the most unusual action of addressing the legislative and executive branches sua sponte regarding another attempted legislative encroachment on the judicial branch‘s domain, the Open Meetings Act:
Const 1963, art 3, § 2 divides the powers of government among three branches and commits to each branch exclusive exercise of the functions properly belonging to it, except as otherwise expressly provided in the Constitution. This separation of powers is designed to preserve the independence of the three branches of government.
Art 6, § 1 vests the judicial power of the state exclusively in one court of justice.Section 4 of that article vests general superintending control over all courts in the state in the Supreme Court and§ 5 confers upon this Court thepower to make rules to govern the practice and procedure within the courts. It is also well settled that under our form of government the Constitution confers on the judicial department all the authority necessary to exercise its powers as a coordinate branch of government. . . . The judicial powers derived from the Constitution include rulemaking, supervisory and other administrative powers as well as traditional adjudicative ones. They have been exclusively entrusted to the judiciary by the Constitution and may not be diminished, exercised by, nor interfered with by the other branches of government without constitutional authorization. . . . It is our opinion that 1976 PA 267 is an impermissible intrusion into the most basic day-to-day exercise of the constitutionally derived judicial powers. [In re 1976 PA 267, 400 Mich 660, 662-663; 255 NW2d 635 (1977).]
The logic, constitutional support, and underlying premise of a government of checks and balances, all these things from which this decision arose, remain true today. Less true, however, is the majority‘s recognition of them. One must wonder how a question such as one raised by In re 1976 PA 267 would be resolved under the majority‘s analysis today. While it would appear that the question of open versus closed deliberative processes would have a marked effect on judicial efficiency, one would be hard-pressed indeed to argue that the policy concerns underlying the Legislature‘s enactment of the OMA had anything at all to do with judicial dispatch. Thus, it would seem that, under the majority‘s rationale, In re 1976 PA 267 should be decided differently. And yet, consider Federated Publications, Inc v Michigan State Univ Bd of Trustees, 460 Mich 75; 594 NW2d 491 (1999). Would the majority afford to constitutional universities more protection than a coequal branch of government? Doubtful indeed, particularly when the majority‘s reference to In re 1976 PA 267 in this recent case is
E
It may be asked then, given the Legislature‘s obvious intent and deliberation on this matter, why we should not acquiesce to its wishes, as contemplated
Now and again, the Court may endeavor to “rebalance” its scales when an ill-advised trend appears.33 No information has been presented to convince us that such dark clouds appear on the horizon. While counsel pointed to specific instances of very questionable “expert” testimony, the trial court, as always, retains discretion to prohibit such testimony, and such decisions remain reviewable on appeal in the usual fashion. Indeed, in the two years since the Court of Appeals issued its decision in this case,
Furthermore, while the statute seems too ill-balanced to be adopted as a rule, it also can be seen, both from the instant cases and hypothetical situations, to be lacking in the relevance of its criteria to its result. Certainly, for expert witnesses to be of help to a court, they must be well-informed in their subject area, or, in common parlance, qualified. The statute‘s requirements, growing more stringent with the 1993 amendments, have taken this laudable goal to an extreme that would often frustrate its purpose.
Recall that, as it now exists, the statute requires a specialist for specialist “match-up” between witnesses and defendants. It would seem that under this rule, were a defendant practicing medicine outside his specialty area (which might well be a factor in the underlying claim) when malpractice was alleged, the statute would seem to require, nonetheless, a witness in his specialty, as opposed to one who specializes in the area he was practicing in. The result of the statute would seem to favor having a witness as unqualified as the defendant in such cases. As can be seen in the facts of Sobran, the lines between various medical specialties are often not the most well-defined.
Such concerns aside, the statute fails to recognize many of the avenues by which an expert might come to have knowledge of the subject at hand, and gives undue credence to other considerations. Moreover, it limits itself to only medical and dental malpractice actions. To the extent this Court might wish to re
In view of the trial court‘s ruling on
III
SOBRAN
The Court of Appeals ruled in Sobran that Dr. Caminker was unqualified under
Unlike the Court below, this Court has had the benefit of briefing and argument by the parties on the issue of Dr. Caminker‘s qualifications under
Given that the Court of Appeals lacked the benefit of either a record on this issue or briefing by the parties, I would specifically note that the trial court should not consider itself bound by the decision of the Court of Appeals on the issue of
I would affirm the decision of the Court of Appeals in McDougall, and reverse the decision of the Court of Appeals in Sobran, remanding both cases to the trial courts for further proceedings. “That this prerogative of the courts includes the power to formulate and to alter the rules of evidence ought not to be doubted.” Perin at 542.37 While we have, at least until today, moved cautiously and hesitantly in making these determinations, aware of the coequal dignity of our Legislature, the constitutional basis for the conclusion I reach should not be doubted. In speaking against the Donnelly/Leibrand/McAllister amendment (and thus in favor of the version adopted in our current constitution), Committee on the Judicial Branch Chairman Robert J. Danhof noted the clear distinction that the statute impermissibly crossed: “The Legislature may write statutes as they relate to the substantive law, but the rulemaking power of the court as it relates to the admission of evidence should not be limited, as this would do.” 1 Official Record, supra, p 1289. The drafters of our current constitution declined to turn against the provisions of every constitution in our state‘s history and permit the Legislature to impose restraints on the judiciary‘s power
KELLY, J., concurred with CAVANAGH, J.
Notes
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
SeeHonigman & Hawkins suggest that two possible policies underlie the rule, one that such convictions are not credible evidence or are unduly prejudicial, and the other that the policy is to encourage guilty pleas in traffic courts. However, since, as drafted, the statute relates only to the admissibility of evidence, a subject clearly more within the rule-making competence of the courts, the rule should supersede the statute where the two conflict. 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 404.Evidence of specific instances of the victim‘s sexual conduct, opinion evidence of the victim‘s sexual conduct, and reputation evidence of the victim‘s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim‘s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. [
MCL 750.520j(1) ;MSA 28.788(10)(1) .]
Character of victim of sexual conduct crime. In a prosecution for criminal sexual conduct, evidence of the victim‘s past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin or semen, pregnancy, or disease . . . .
“As a practical matter, in many courts merely a license to practice medicine is needed to become a medical expert on an issue.
“This has given rise to a group of national professional witnesses who travel the country routinely testifying for plaintiffs in malpractice actions. These ‘hired guns’ advertise extensively in professional journals and compete fiercely with each other for the expert witness business. For many, testifying is a full-time occupation and they rarely actually engage in the practice of medicine. There is a perception that these so-called expert witnesses will testify to whatever someone pays them to testify about.
“This proposal is designed to make sure that expert witnesses actually practice or teach medicine. In other words, to make sure that experts will have firsthand practical expertise in the subject matter about which they are testifying. In particular, with the malpractice crisis facing high-risk specialists, such as neurosurgeons, orthopedic surgeons and ob/gyns, this reform is necessary to insure that in malpractice suits against specialists the expert witnesses actually practice in the same speciality. This will protect the integrity of our judicial system by requiring real experts instead of ‘hired guns.‘” [218 Mich App 509, n 1 (TAYLOR, P.J., dissenting).]
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The supreme court shall by general rules establish, modify and amend the practice in such court and in all other courts of record, and simplify the same.
Applying this provision in Berman v Psiharis, 325 Mich 528, 533; 39 NW2d 58 (1949), we held that Court Rule No 26, § 1 (1945), which provided for the amendment of a pleading as of right “at any time before answer is put in, or within 15 days thereafter,” superseded a contrary statute requiring leave of the court.
By the same token,
The supreme court shall, by general rules, establish, modify, and amend the practice in such court and in the circuit courts, and simplify the same.
It is certainly arguable, however, that the Court in People v Hackett, 421 Mich 338, 351; 365 NW2d 120 (1984), resolved this question by adopting the
“This has given rise to a group of national professional witnesses who travel the country routinely testifying for plaintiffs in malpractice actions. These ‘hired guns’ advertise extensively in professional journals and compete fiercely with each other for the expert witness business. For many, testifying is a full-time occupation and they rarely actually engage in the practice of medicine. There is a perception that these so-called expert witnesses will testify to whatever someone pays them to testify about.
“This proposal is designed to make sure that expert witnesses actually practice or teach medicine. In other words, to make sure that experts will have firsthand practical expertise in the subject matter about which they are testifying. In particular, with the malpractice crisis facing high-risk specialists, such as neurosurgeons, orthopedic surgeons and ob/gyns, this reform is necessary to insure that in malpractice suits against specialists the expert witnesses actually practice in the same speciality. This will protect the integrity of our judicial system by requiring real experts instead of ‘hired guns.‘” [218 Mich App 501, 509, n 1; 554 NW2d 56 (1996) (TAYLOR, P.J., dissenting), quoting Report of the Senate Select Committee on Civil Justice Reform, issued September 26, 1995.]
In general, those rules of evidence designed to allow the adjudicatory process to function effectively are procedural in nature, and therefore subject to the rule-making power. Examples are rules of evidence designed to let the jury have evidence free from the risks of irrelevancy, confusion and fraud. On the other hand certain rules of evidence are inextricably involved with legal rights and duties. They are substantive declarations of policy, although they may be drafted in terms of the admission or exclusion of evidence. . . [Id., p 403.]
The dissent, post at 57-59, questions our reliance on this commentary because the authors, in discussing
Thus, without being drawn into the dissent‘s invitation to decide hypothetical cases not before us, we simply observe that it is not ineluctably clear, for example, that MRE 407‘s exclusion of evidence of subsequent remedial measures is one having so few substantive policy implications that the Legislature has no constitutional authority to enact an alternative policy. It can hardly be argued that MRE 407 encompasses no important policies involving commerce or legal rights.
See, e.g., Berman; In re Koss Estate, supra.In so construing our statute we have in mind that it is the duty of this Court to make the ultimate decision on whether to adopt, amend or retain a rule of evidence.
In regard to the presence of such evidence, I can only raise an eyebrow at the majority‘s citation of the legislative record, which would seem to be something of a doctrinal departure in citing a source which those in the majority usually view with considerable disdain. See, e.g., Hagerman v Gencorp Automotive, 457 Mich 720, 761, n 14; 579 NW2d 347 (1998) (TAYLOR, J., dissenting). While I certainly acknowledge the presence of such a history, I suggest that this Court should not, on the basis of what is offered therein, be persuaded to acquiesce in the rule the Legislature established. Whether such history was (obviously) or should have been (a matter for academics, not the Court) sufficient to move the Legislature is not the question. Rather, the question is whether the Legislature, regardless of how great the motivation, may intrude on the constitutional province of the judiciary. In answering the Perin question of acquiescence, I must examine the Legislature‘s motivations, but in answering the former question of constitutional intrusion, I, in contrast to the majority, would not consider the merits of such motivations at all, reviewing them only as much as is necessary to determine whether the intent to overrun a constitutional boundary was present. The barrier established in