Your client is a licensed medical professional whom you are defending in an
administrative hearing wherein the state wants to suspend or terminate his
license over an alleged breach of the standard of care.
The state presents "Dr. Doolittle" as an expert witness on the issue of the
breach. During voir dire, you easily demonstrate that "Dr. Doolittle" is
not an expert as envisaged by the Michigan Rules of Evidence.
You are also able to demonstrate that this "expert":
• has no sense of the data of his discipline;
• cannot explain peer review; and
• has no sense of basic scientific methodology, hypothesis testing and
falsifiability.
You ask the administrative law judge to strike this "expert" witness as he is
not able to satisfy the requirements of the new MRE 702.
The state counters that rules of evidence apply in a "relaxed" mode to
administrative hearings and, therefore, the expert witness should be allowed.
Now that Michigan is a Daubert state, it is crucial for administrative law
judges to understand that their gatekeeping tasks are no less than that of other
judges. Otherwise, administrative hearings will turn into a farce that
allows the ipse dixit of any and all "experts."
Law
MCL 24.275; MSA 3.560(175), which governs the admission of evidence in contested
administrative hearings, provides as follows:
"In a contested case the rules of evidence as applied in a non-jury civil case
in circuit court shall be followed as far as practicable, but an agency may
admit and give probative effect to evidence of a type commonly relied upon by
reasonably prudent men in the conduct of their affairs."
It is often argued that a "relaxed" evidentiary standard should be applied to
administrative hearings on the basis of the "reasonably prudent men in the
conduct of their affairs standard. This raises the pertinent issue of
whether MRE 702 and 703 apply to the administrative hearings in a "relaxed" mode
or in their entire letter and spirit.
The Michigan Supreme Court has carefully explained:
"In general, those rules of evidence designed to allow the adjudicatory process
to function effectively are procedural in nature, and therefore subject to the
rulemaking power." (See McDougall v. Sham, Law. Wkly. No. 36400) .
Therefore, the description in MCL 24.275; MSA 3.560(175) is a rule of practice
and procedure.
Further, the rules of evidence are binding on Michigan courts and their scope
and applicability are governed by MRE 101 and MRE 1101. (See People v.
Berkey, 437 Mich. 40, 49; 467 N.W.2d 6 (1991)).
As the Court of Appeals recently instructed in People v. Strong, 213 Mich. App.
107, 112; 539 N.W.2d 736 (1995): "In resolving a conflict between a
statute and a court rule, the court rule prevails if it governs practice and
procedure." (See also Constitution of 1963, art. 6, 55; MCL 5 600.223; MSA §
27A.223) .
Policy
Michigan has been moving toward putting an end to junk science in all Michigan
courts for a decade.
The Legislature moved to stop junk science in medical malpractice cases by
enacting MCL § 600.2169; MSA § 27A.2169. Following the Legislature's
enactment of these statutes, the Michigan Supreme Court began the process of
changing Michigan Rules of Evidence 702 and 703.
In July 2004, the Michigan Supreme Court clearly articulated the culmination of
this important public policy trend: MRE 702 has since been amended
explicitly to incorporate Daubert's standards of reliability . . . . It
has not altered the court's fundamental duty of ensuring that all expert opinion
testimony - regardless of whether the testimony is based on 'novel' science - is
reliable." (See Gilbert v. Daimler Chrysler Corporation, Law. Wkly. No.
46095) .
What MRE 702 &. 703 Require
A simple review of the rules in 1-2-3 "if-then" form makes their requirements
clear:
"If the court determines that 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 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." (MRE 702 emphasis added). |
-then -
|
The facts or data in a particular case upon which an expert
bases an opinion shall be in evidence." (MRE 703 emphasis added) . |
When this process is broken into its component parts, we
have simple instructions for gatekeeping:
- Establish that the proposed testimony is
actually needed.
|
- Determine if the proposed witness really is
an expert.
|
- Determine whether the proposed witness's
testimony is based upon sufficient facts or data.
|
- Determine whether the proposed witness's
testimony is the product of reliable principles and methods.
|
- Determine whether the proposed witness has
applied the principles and methods reliably to the facts of the
case.
|
- Determine whether it is more likely than
not that the facts or data upon which the proposed witness bases her
opinion is or will be properly in evidence.
|
The issue here, is that before any witness professing to testify as an
"expert" is allowed to testify, the court has to fulfill its gatekeeping
functions.
Where can we find helpful guidelines? The Michigan Supreme Court has instructed
that we can look to federal precedent when working to understand practice and
application of rules like MRE 702 and 703. (See People v. Barrem, Law.
Wkly. No.24536) .
In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993), the U.S.
Supreme Court held that "the trial judge must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable."
Compared to lay witnesses, experts purport to offer testimony that is
scientific. Justice Blackmun indicated that by using the term "scientific," the
witness implies "grounding in the methods and procedures of science."
The court's instruction to the trial courts was that when "expert," "scientific"
testimony is offered, "the trial judge must determine at the outset, pursuant to
Rule 104 (a), whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or determine a
fact in issue. This entails a preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in
issue." (Id. at 592-93).
Grounding its admissibility analysis in the principles and methodology of
science, the court further noted "that scientists typically distinguish between
'validity' (does the principle support what it purports to show?) and
'reliability' (does application of the principle produce consistent results?) .
. . . . [O]ur reference here is to evidentiary reliability - that is,
trustworthiness . . . . In a case involving scientific evidence,
evidentiary reliability will be based upon scientific validity." (Id. at 590
n.9) .
Then, in Gen. Elec. Co. v. Joiner, 522 U.S. 136; 118 S.Ct. 512 (1997), the
Supreme Court revisited some of the unanswered questions raised by commentators
after Daubert.
Contrary to the court's previous holding in Daubert which stated that "the
focus, of course, must be solely on principles and methodology, not on the
conclusions that they generate," Chief Justice Rehnquist expressed the new view
that, "conclusions and methodology are not entirely distinct from one another .
. . . A court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered . . . . That is what the
district court did here, and we hold that it did not abuse its discretion in so
doing." (Id. at 146) .
By approving the district court's exclusion of the plaintiffs' expert testimony
on the basis of improperly drawn conclusions, the court in Joiner broadened the
scope of judicial gatekeeping. In exercising their gatekeeping
responsibilities, Joiner obligates trial judges to evaluate the analytical
reasoning employed by scientific experts.
Thereafter, in a decision widely hailed as the "tombstone" for junk science in
the courtroom, Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137; 119 S.Ct. 1167
(1999), the Court simply held "Daubert . . . applies to all expert testimony."
Quoting from Judge Learned Hand, Justice Breyer explained that experts of all
kinds tie observations to conclusions through the use of "general truths derived
from . . . specialized experience." The court went on to instruct that
judges should expect the same intellectual rigor of experts as the experts
expect of themselves in their own professional settings. Facing junk
science in all its forms, the Michigan Supreme Court has clearly explained that,
'While the exercise of this gatekeeper role is within a court's discretion, a
trial judge may neither 'abandon' this obligation nor 'perform the function
inadequately." (See Gilbert at 780) .
MRE 702 and 703 apply to the administrative hearings in its proper letter and
spirit as envisaged by the Michigan Supreme Court. The argument that these
rules apply in some kind of "relaxed" mode waters down the decisions in
Daubert-Joiner-Kumho and flies in the face of the ongoing battle to keep "junk
science" out of the courts. |
