McDougall v. Schanz

597 N.W.2d 148, 461 Mich. 15

• Court: Michigan Supreme Court
• Decided: July 30, 1999
• Docket: Docket Nos. 107956, 110707, Calendar Nos. 1, 2
• Status: Published

Opinions

Young, J.

We granted leave to appeal in these consolidated cases to determine whether MCL 600.2169; MSA 27A.2169, which provides strict requirements for the admission of expert testimony in medical malpractice cases brought against specialists, impermissibly infringes this Court’s exclusive authority under Const 1963, art 6, § 5, to promulgate rules governing practice and procedure in Michigan courts. We conclude that § 2169 is an enactment of substantive law. Therefore, we uphold the statute as a valid exercise of the Legislature’s public policy-making prerogative.

I. FACTUAL AND PROCEDURAL BACKGROUND

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 MCL 600.2169; MSA 27A.2169. At that time, the statute provided, in relevant part, as follows:

(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 rejected plaintiff’s argument that the statute is unconstitutional, concluding instead that § 2169 and MRE 702, governing the admission of expert testimony,³ are complementary.⁴

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 physician, Dr. Thomas Fox, performed an ileostomy.⁶ Fifteen years later, in 1991, plaintiff began experiencing abdominal pain. He was eventually referred to defendant, Dr. Alasdair McKendrick, a board-certified colorectal surgeon. Defendant diagnosed an ileostomy dysfunction and recommended another surgery to improve the ileostomy. This operation was performed in December 1991, but it did not improve plaintiffs complaint of abdominal pain. After six months of unsuccessful treatment with defendant, plaintiff returned to Dr. Fox.

Dr. Fox performed a sigmoidoscopy⁷ on September 14, 1992. As a result, Dr. Fox found polyps blocking plaintiffs 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 problems and for the performance of diagnostic procedures such as sigmoidoscopy.

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 MCL 600.2169; MSA 27A.2169 to testify regarding the standards of care applicable to colorectal surgeons. The trial court granted defendant’s motion and, after declining to allow plaintiff additional time to locate another expert, dismissed plaintiff’s claim with prejudice.

Plaintiff appealed to the Court of Appeals, raising the constitutionality of MCL 600.2169; MSA 27A.2169. The Court acknowledged that § 2169 had been declared unconstitutional by the Court of Appeals panel in McDougall, and that the trial court’s ruling was based upon the statute.⁸ Nevertheless, the Court upheld the trial court’s ruling on the ground that Dr. Caminker was not qualified under MRE 702, a ground that was neither argued before nor decided by the trial court. We granted leave to appeal, and specifically ordered the parties to address the question whether the statute is invalid as in conflict with MRE 702. 456 Mich 905 (1997).

n. 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 relevant to our assessment of § 2169’s validity is the well-established rule that a statute is presumed to be constitutional unless its unconstitutionality is clearly apparent. Johnson v Harnischfeger Corp, 414 Mich 102, 112; 323 NW2d 912 (1982); People v Bricker, 389 Mich 524, 528; 208 NW2d 172 (1973).

HI. 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 v 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 witness’ lack of practice or teaching experience in the relevant specialty. Anyone qualified by virtue of the MRE 702 criteria of skill, training, or education could nonetheless be excluded under the statute’s strict practice or teaching requirements. Indeed, as the Court of Appeals in McDougall correctly noted, the trial court in that case considered Dr. Robia to be qualified under MRE 702. However, the trial court’s discretion to permit Dr. Robia’s expert testimony was limited by § 2169’s practice or teaching requirements.

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 § 2169 and MRE 702 clearly conflict, we must determine whether the statute impermissibly infringes upon this Court’s constitutional authority to enact rules governing practice and procedure.

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 Const 1963, art 3, § 2; In re 1976 PA 267, 400 Mich 660; 255 NW2d 635 (1977). Thus, in Perin v Peuler (On Rehearing), 373 ; 130 NW2d 4 (1964), we properly emphasized that “[t]he function of enacting and amending judicial rules or practice and procedure has been committed exclusively to this Court . . .; a function with which the legislature may not meddle or interfere save as the Court may acquiesce and adopt for retention at judicial will.”

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 art 6, § 5, this Court’s constitutional rule-making authority extends only to matters of practice and procedure.¹¹ Shannon, supra at 222-223. Accordingly, in order to assess the constitutionality of MCL 600.2169; MSA 27A.2169, we must determine whether the statute addresses purely procedural matters or substantive law.¹²

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. Indeed, as previously discussed, § 2169 contains strict requirements concerning the qualification of expert witnesses in medical malpractice cases. The statute affects what expert testimonial evidence may be admitted in the trial of such cases.

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 art 6, § 5, but on the 1962 pocket supplement for 1 Wig-more, Evidence (3d ed). Since Perin, this Court, again without any apparent consideration of the meaning of “practice and procedure” as stated in art 6, § 5, has reaffirmed Perm’s broad statement of our authority over all matters relating to the admission of evidence. See, e.g., People v Mitchell, 402 Mich 506; 265 NW2d 163 (1978); People v Jackson, 391 Mich 323; 217 NW2d 22 (1974); Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971).

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 distinction is one that was not only advocated by recognized scholars contemporaneously with the development and passage of our 1963 Constitution,¹⁴ but one that, as further explained below, the drafters contemplated.

We conclude that a statutory rule of evidence violates Const 1963, art 6, § 5 only when “ ‘no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified ....’” Kirby v Larson, 400 Mich 585, 598; 256 NW2d 400 (1977) (opinion of Williams, J.), citing 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 404;¹⁵ see also Joiner & Miller, Rules of practice and procedure: A study ‘of judicial rule making, 55 Mich L R 623, 650-651 (1957). Therefore, “[i]f 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.” Joiner & Miller, supra at 635. We agree with Professor Joiner that

[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 Colorado Constitution that is substantially similar to Const 1963, art 6, § 5,¹⁷ upheld that state’s “rape shield” statute in large part because it “represents far more than merely a legislative attempt to regulate the day-to-day procedural operations of the courts.” Id. at 372. See also Nolan v Sea Airmotive, Inc, 627 P2d 1035, 1042 (Alas, 1981). To the extent that this Court’s prior decision in Perin and its progeny suggest that all statutes affecting the admission of evidence are procedural, they are overruled.

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 art 6, § 5:

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 farther 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.]

We think it clear from a reading of the entire debate concerning the proposed amendment that the drafters of our 1963 Constitution believed, not that rules of evidence are always procedural, but that the proposed amendment was unwise in that it would forever have determined that evidentiary rules are always substantive. Thus, the convention debates actually support the distinction we here recognize and draw between substantive and procedural “rules of evidence.”

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

We also agree with the McDougall dissent that, because the Legislature is authorized to change a common-law cause of action or abolish it altogether, O’Brien v Hazelet & Erdal, 410 Mich 1, 15; 299 NW2d 336 (1980), it necessarily has the ability to “circumscribfe] those qualified to give the requisite proofs to establish the elements of the cause of action.” 218 Mich App 518 (Taylor, P.J., dissenting). The applicable standard of care is an essential element in a medical malpractice action. Locke v Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994). Section 2169 essentially modifies that element to require that proof of malpractice “emanate from sources of reliable character as defined by the Legislature.” 218 Mich App 518 (Taylor, P.J., dissenting). As stated, we will not declare a statute to be violative of art 6, § 5 merely because it is drafted in terms of the admission or exclusion of evidence.

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 this line-drawing task—one that the drafters of the 1963 Constitution themselves acknowledged. See supra at 32-34.

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 MCL 600.2169; MSA 27A.2169 is an enactment of substantive law. As such, it does not impermissibly infringe this Court’s constitutional rule-making authority over “practice and procedure.”

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 MRE 702 to affirm the trial court’s grant of summary disposition to defendant McKendrick, despite the fact that the parties never argued the application of MRE 702 and the trial court never ruled on the issue. We do not reach the propriety of that decision because it is clear that the trial court correctly granted summary disposition under § 2169. Accordingly, we affirm the judgment of the Court of Appeals because it reached the correct result.

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.

1 Dr. Robia testified that he practiced internal medicine on a limited “moonlight basis” until 1985.

2 The statute was subsequently amended in 1993, resulting in changes that are not important for purposes of our decision. The parties have stipulated that only the original, 1986 version of the statute is at issue in these consolidated cases. Moreover, given that the 1986 and 1993 versions of the statute interact with MRE 702 in the same manner, our decision applies with equal force to the 1993 version. We do note that the requirements contained in the 1993 version of the statute are even more restrictive than the 1986 version.

3 MRE 702 provides:

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.

4 Plaintiff conceded that Dr. Robia is not qualified under § 2169 to give standard-of-care testimony against Dr. Eiiuk.

5 The claims of John Sobran’s wife, plaintiff Carole Sobran, are purely derivative in nature. For the sake of simplicity, all references in this opinion to “plaintiff” will be to John Sobran only.

6 An ileostomy is a surgical procedure involving the creation of an opening in the patient’s abdomen. Fecal matter can then move through the opening from the intestines into an attached external bag rather than through the lower alimentary canal in the normal course.

7 This procedure enables a physician to view the patient’s intestinal tract through a scope inserted into the alimentary canal.

8 Unpublished opinion per curiam of the Court of Appeals, issued April 11, 1997 (Docket No. 185581). The Court was, of course, bound by the McDougall panel’s determination under Administrative Order No. 1996-4 (currently MCR 7.215[H]).

9 Quoting the Report of the Senate Select Committee on Civil Justice Reform,, issued September 26, 1995, Judge Taylor’s dissent noted:

“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).]

10 This rule-making power also existed under our predecessor constitutions. Const 1908, art 7, § 5, provided:

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, Const 1850, art 6, § 5, stated:

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.

11 This is a point that the dissent purports to acknowledge, but then immediately disregards. Post at 53-55. The essence of the dissent’s position is that, if this Court creates a rule of evidence, that rule is, ipse dixit, one encompassing only procedure. No doctrinal support for this proposition is offered. That this Court has the power to declare that a matter of substance is procedure is no answer to the question whether it has the constitutional authority to do so. Certainly, there is no indication in this Court’s rules or public statements suggesting that, in enacting rules of evidence, this Court even considers whether such rules encroach upon substantive policy questions.

12 To the extent that the term “practice” encompasses more than in-court “procedure,” that issue is not before us.

13 At the time Perin was decided, MCL 257.731; MSA 9.2431 provided: “No evidence of the conviction of any person for any violation of this chapter or of a local ordinance pertaining to the use of motor vehicles shall be admissible in any court in any civil action.”

14 See Joiner & Miller, Rules of practice and procedure: A study of judicial rule making, 55 Mich L R 623, 635, 650-651 (1957).

15 Honigman and Hawkins further explain the distinction between procedural and substantive “rules of evidence”:

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 MCL 257.731; MSA 9.2431 (the very same provision at issue in Perrin), concluded that the statute was superseded by court rule even though “[t]wo different legislative policies might lie behind Section 731.” See Honigman & Hawkins, supra (emphasis added). If the dissent were entirely forthcoming, it would have noted that what the authors of the commentary actually concluded was that “the legislative policy behind [the statute] is not clear.” Id. If such policy had been clear, the authors concluded, “it would raise a serious question as to the validity of [the court rule].”

16 We find curious the dissent’s suggestion that, because many of our rules of evidence are undergirded by judicially recognized “policy” determinations, such policies are inherently procedural in nature and thus beyond the constitutional power of the Legislature to change. Post at 59-64. We also find it at least a debatable proposition that a court-enacted rule of evidence embodying public policy affecting broad social and commercial interests is, as the dissent would have it, immune from legislative change.

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.

17 Colo Const, art 6, § 21 provides in relevant part that “[t]he supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases . . .

18 The amendment was offered by Delegates Ann E. Donnelly, Karl K Leibrand, and Thomas R. McAllister.

19 However dissatisfied the dissent may be with the legislative determination that led to the enactment of § 2169, there unquestionably is an extensive record (frequently quoted in the dissent) establishing the policy concerns of our Legislature regarding the medical malpractice crisis it believed the state of Michigan faced and the policy choices that influenced its enactment of § 2169 to redress the crisis.

The dissent agrees with us that the Legislature “is better equipped to undertake a deliberative approach to making policy decisions.” Post at 55. However, the dissent proceeds to reject the Legislature’s finding of a health care crisis because such a finding does not conform to the dissent’s world view—one which the dissent must admit is informed, at best, by anecdotal “evidence.”