McDougall v. Eliuk

• Decision Date: 27 August 1996
• Docket Number: Docket No. 178042
• Citation: 554 N.W.2d 56,218 Mich.App. 501
• Parties: Edward McDOUGALL, Personal Representative of the Estate of Sandra M. McDougall, Plaintiff-Appellant/Cross-Appellee, v. Larry K. Schanz, Family Practice Center, Roger A. Shomo, D.O., P.C. and Marvin Coy, D.O., Defendants, and Reuben D. ELIUK, D.O., Defendant-Appellee/Cross-Appellant, and Frederick Broniak, D.O., Garden City Hospital, A. Kania, D.O., and Stephen B. Goldfarb, Defendants-Appellees, and Michigan Trial Lawyers Association, Michigan Defense Trial Counsel, and Michigan State Medical Society, Amici Curiae.
• Court: Court of Appeal of Michigan — District of US

Page 56

554 N.W.2d 56

218 Mich.App. 501

Edward McDOUGALL, Personal Representative of the Estate of Sandra M. McDougall, Plaintiff-Appellant/Cross-Appellee, v. Larry K. Schanz, Family Practice Center, Roger A. Shomo D.O., P.C. and Marvin Coy, D.O., Defendants and Reuben D. ELIUK, D.O., Defendant-Appellee/Cross-Appellant and Frederick Broniak, D.O., Garden City Hospital, A. Kania D.O., and Stephen B. Goldfarb, Defendants-Appellees, and Michigan Trial Lawyers Association, Michigan Defense Trial Counsel, and Michigan State Medical Society, Amici Curiae.

Docket No. 178042.

Court of Appeals of Michigan.

Submitted April 16, 1996, at Detroit.

Decided Aug. 27, 1996, at 9:10 a.m.

Released for Publication Oct. 15, 1996.

Lakin, Worsham & Victor, P.C. by Sanford N. Lakin, Larry A. Smith and Ron S. Kirsch, Southfield, for Edward McDougall.

O'Leary, O'Leary, Jacobs, Mattson, Perry & Mason, P.C. by John P. Jacobs, Southfield, for Reuben D. Eliuk.

Mark Granzotto, Detroit, for Amicus Curiae, Michigan Trial Lawyers Association.

Gross, Nemeth & Silverman, P.L.C. by James G. Gross, Detroit, for Amicus Curiae, Michigan Defense Trial Counsel.

Kerr, Russell and Weber by Richard D. Weber and Joanne G. Swanson, Detroit, for Amicus Curiae, Michigan State Medical Society.

Before TAYLOR, P.J., and FITZGERALD and P.D. HOUK, ^* JJ.

FITZGERALD, Judge.

In this medical malpractice action arising out of the death of plaintiff's thirty-year-old wife from complications arising from undiagnosed diabetes, plaintiff appeals as of right the trial court's finding that M.C.L. § 600.2169(1); M.S.A. § 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. ¹ 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.

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 N.W.2d 4 (1964); Mumaw v. Mumaw, 124 Mich.App. 114, 120, 333 N.W.2d 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 M.C.L. § 600.2169(1); M.S.A. § 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 acts ² 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. [M.C.L. § 600.2169; M.S.A. § 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 N.W.2d 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 N.W.2d 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 N.W.2d 505 (1996), have narrowed Perin'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, 550 N.W.2d 505. 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 that "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 N.W.2d 170 (1995). The plaintiff bears the burden of showing that his expert possesses the...