McDOUGALL v. ELIUK

554 N.W.2d 56, 218 Mich. App. 501

Opinions

Fitzgerald, J.

In this medical malpractice action arising out of the death of plaintiffs thirty-year-old wife from complications arising from undiagnosed diabetes, plaintiff appeals as of right the trial court’s finding that MCL 600.2169(1); MSA 27A.2169(1) is constitutional and that plaintiff’s only expert, Dr. Mark Robia, did not meet the qualifications set forth in the statute to testify against defendant Reuben D. Eliuk, D.O.

* The trial court also held that, if the issue of competency was resolved solely under MRE 702, plaintiff’s expert would be qualified to testify. In this case of first impression, plaintiff appeals the trial court’s dismissal of the claim against Dr. Eliuk.

1

The parties agree that the Supreme Court’s rule-making power in matters of practice and procedure is superior to that of the Legislature. Const 1963, art 6, § 5. The rules of practice and procedure include the rules of evidence. Perin v Peuler (On Rehearing), 373 Mich 531, 541; 130 NW2d 4 (1964); Mumaw v Mumaw, 124 Mich App 114, 120; 333 NW2d 599 (1983). The parties also agree that a statutory rule of evidence not in conflict with the Michigan Rules of Evidence remains effective until superseded by rule or decision of the Supreme Court. MRE 101. Despite their rhetoric, the parties also agree that MCL 600.2169(1); MSA 27A.2169(1) prevents, and was intended to prevent, some experts from testifying in malpractice cases who would have been able to testify if their qualifications had been tested solely under MRE 702. The narrow issue presented, therefore, is whether the Supreme Court’s adoption of MRE 702 precludes the Legislature from enacting a statute that imposes additional competency requirements beyond those listed in the court rule for qualification of an expert.

The general rule in Michigan regarding qualification of expert witnesses is MRE 702:

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.

In 1986, the Michigan Legislature passed a series of bills commonly referred to as the tort reform acts of 1986. One of the acts² established new and more stringent standards for the qualification of expert witnesses in medical malpractice actions:

(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.2169.³]

In determining whether there is a real conflict between a statute and a court rule, both should be read according to their plain meaning, Buscaino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971), and the common-sense meaning of the words should be given the effect most likely understood by those who adopted them. Id.

First, the conflict between § 2169 and MRE 702 is readily apparent. The plain language of MRE 702 grants the trial court discretion to qualify a witness as an expert if the expert possesses the requisite “knowledge, skill, experience, training or education.” By contrast, the trial court may not exercise discretion under § 2169(2)⁴ unless the competency requirements of § 2169(1) are met.

Second, in giving effect to the common-sense meaning of each provision, the evidentiary rule clearly embodies the same determination made by the Michigan Legislature that expert testimony is required to establish the standard of care in a medical malpractice case. However, the evidentiary rule does not exclude experts who are qualified by their knowledge, skill, experience, training, or education, from testifying against a specialist solely because the expert does not specialize in the same or a related area of medicine as the defendant and does not devote a substantial portion of professional time to the practice or instruction of the same or a related area of medicine as the defendant. While the statute barred the qualification of Dr. Robia as an expert in the present case, the trial court determined that Dr. Robia would have been qualified as an expert under the evidentiary rule.

Thus, it is evident that the two provisions are not redundant, but rather reflect two different approaches in determining the qualification of an expert as a witness. Inasmuch as the two provisions stand at odds, the evidentiary rule must be found to supersede § 2169(1). See, e.g., Mumaw, supra (this Court found a direct conflict between a statute that declared that a spouse was incompetent to testify on the issue of adultery in a divorce action and a court rule declaring that all persons are competent to testify), and Dahn v Sheets, 104 Mich App 584; 305 NW2d 547 (1981) (this Court found a conflict between the dead man’s statute and the court rule regarding competence to testify). Thus, to the extent that § 2169(1) conflicts with the procedural mandates of MRE 702, it is unconstitutional.

We disagree with the dissent’s conclusion that cases such as People v Adair, 452 Mich 473; 550 NW2d 505 (1996), have narrowed Perm's holding that the Supreme Court’s rule-making power in matters of practice and procedure is superior to that of the Legislature. In Adair, the Court was not confronted with a conflict between the rape-shield statute (which calls for exclusion of evidence of past sexual conduct not incident to the alleged sexual assault when the probative value is merely outweighed by prejudicial consideration) and MRE 403 (which calls for the exclusion of probative evidence when “substantially” outweighed by prejudicial considerations). Rather, in analyzing the statute as a backdrop to a determination of the meaning of the word “past” in the rape-shield statute, the Court noted that the Legislature determined that past sexual conduct is legally irrelevant and inadmissible as a matter of law. Id. at 482. The Court was not confronted with the issue that is presented in the instant case. Further, MRE 101 merely echoes Const 1963, art 6, § 5, which gives the Supreme Court rule-making power in matters of practice and procedure.

The dissent suggests that it is “antimajoritarian” in a republican form of government for the judiciary to declare unconstitutional an act of the Legislature. We vehemently disagree. Const 1963, art 3, § 2 provides: “The powers of government are divided into three branches: legislative, executive, and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” The three branches of government are equal and independent. The constitution has given the Supreme Court rule-making power in matters of practice and procedure. Const 1963, art 6, § 5. Where the Legislature exercises powers belonging to the Supreme Court by enacting a statutory rule of evidence in conflict with an existing rule of evidence, it acts unconstitutionally. There is nothing antimajoritarian about the judiciary so declaring.

On cross appeal, defendant argues that the trial court abused its discretion in finding that Dr. Robia was qualified to testify as an expert under MRE 702. We disagree.

A party offering the testimony of an expert must demonstrate the witness’ knowledge of the applicable standard of care. Bahr v Harper-Grace Hosps, 448 Mich 135, 141; 528 NW2d 170 (1995). The plaintiff bears the burden of showing that his expert possesses the necessary learning, knowledge, skill, and experience to testify. Siirila v Barrios, 398 Mich 576, 591; 248 NW2d 171 (1976). A trial court’s decision to qualify a witness as an expert is reviewed for an abuse of discretion. Bahr, supra at 141.

Dr. Robia testified to the trial court’s satisfaction regarding his qualifications and familiarity, based on education and training, with the standard of care applicable to an internist. The trial court noted that Dr. Robia is board-certified in internal medicine. Dr. Robia actively practiced as an internist until 1982 and currently spends a small percentage of his professional time in consultation. Dr. Robia regularly keeps abreast of the medical literature and testified that he is aware of the applicable standard of care for an internist. Given Dr. Robia’s knowledge, experience, education, and training, we cannot conclude that the trial court abused its discretion in finding Dr. Robia qualified to testify as an expert under MRE 702.

Affirmed in pari and reversed in pari.

R D. Houk, J., concurred.

Circuit judge, sitting on the Court of Appeals by assignment.

1 Plaintiff stipulated that Dr. Robia did not meet the qualifications set forth in the statute because he did not specialize in the field of internal medicine at the time of the proceedings below or at the time of the alleged malpractice.

2 1986 PA 178, effective October 1, 1986.

3 The statute was subsequently further amended to require that an expert who testifies against a specialist must specialize in the same field, not merely in a related relevant area. Also under the amendment an expert may not testify in a medical malpractice action against a board-certified specialist unless the witness is also board-certified in the same specialty and during the year preceding the occurrence a majority of the witness’ time was devoted to either the clinical practice or the teaching of that particular specialty. MCL 600.2169(lXb)(i) and (ii); MSA 27A2169(l)(b)(i) and (ii).

4 MCL 600.2169(2); MSA 27A.2169(2).