Fast
Facts:
Now
that MRE 702 has been conformed closely to FRE 702, the Michigan
courts will look to federal precedent for guidance.
Based
on Gilbert, it appears that Daubert standards
will be applied quite rigorously in Michigan.
The
new Michigan approach requires an expert to base opinions on facts
or data that are not only admissible, but actually admitted, in
evidence at trial.
|
Recent Amendments
to the Michigan Rules of Evidence (MRE) governing expert testimony will
significantly impact the trial of all cases in the Michigan courts.
This article outlines those changes, and discusses their implications
for the presentation of expert testimony.
The affected rules
are MRE 702 and 703. MRE 702 was amended, effective January 1, 2004,
to conform to the current language of Federal Rule of Evidence (FRE)
702, as amended in 2000 to incorporate the teachings of Daubert
v Merrell Dow Pharmaceuticals (Daubert). 1
Revised MRE 702 was recently construec by the Michigan Supreme Court
in Gilbert v DaimlerChrysler (Gilbert). 2
MRE 703 was amended,
effective September 1, 2003, to require that "[t]he facts and data
in a particular case upon which an expert bases an opinion or inference
shall be in evidence." MRE 703 now departs dramatically
from its federal counterpart, as discussed on the following pages.
MRE
702 and Daubert
The
amendment to MRE 702 added the following requirements, taken from FRE
702:
•
the testimony must be based on sufficient facts or data
•
the testimony must be the product of reliable principles and methods
•
the witness must have applied the principles and methods reliably
to the facts of the case
While
these new requirements may look rather bland on their face,3
the implications for Michigan evidence law are profound. The rule amendment
was plainly intended to adopt the principles of Daubert and its progeny
as part of the MRE, as shown by the Staff Note to MRE 702:
The
new language requires trial judges to act as gatekeepers who must exclude
unreliable expert testimony. See Kumho Tire Co v Carmichael,
526 US 137 (1999); Daubert v Merrell Dow Pharms, 509 US 579
(1993). The retained words emphasize the centrality of the court’s
gatekeeping role in excluding unproven expert theories and methodologies
from jury consideration.
Now
that MRE 702 has been conformed closely to FRE 702,4
the Michigan courts will look to federal precedent for guidance.5
Accordingly, it may be expected that Michigan courts will apply standards
for the admissibility of expert testimony that are similar to those applied
by the federal courts under Daubert.6
If anything, the trial court’s gatekeeping responsibility will be
given even more emphasis in Michigan courts. In Gilbert, the
Michigan Supreme Court stated:
[T]he
trial court’s obligation under MRE 702 is even stronger than that
contemplated by FRE 702 because Michigan’s rule specifically provides
that the court’s determination is a precondition to admissibility.7
In
addition, Michigan courts will likely be guided in applying MRE 702 by
the federal Advisory Committee Note on the 2000 amendment to FRE 702.8
Like the Staff Note to MRE 702, the federal Advisory Committee Note on
FRE 702 makes clear that the rule change adopted in 2000 was intended
to incorporate the principles of Daubert:
What
exactly are the ‘‘Daubert factors’’?
The original Daubert decision set forth the following basic
tests for admissibility of an expert opinion, related to the underlying
theory or technique employed by the expert (i.e., the ‘‘principles
and methods’’ prong of the new rule requirements set forth
above):
•
Has the theory or technique been tested?
•
Has the theory or technique been subjected to peer review and publication?
•
Is there a known potential rate of error?
•
Are there existing standards or controls?
•
Is the theory or technique generally accepted within the relevant professional
community?
Beyond
these original Daubert factors, subsequent decisions have established
additional parameters for the admissibility of expert opinion. For example,
in General Electric v Joiner,9
the U.S. Supreme Court held that Daubert applies equally to
the application of the underlying theory or technique (i.e., the third
prong of the new standards). The application of theory to fact is particularly
significant on issues of causation, as noted in Gilbert:
Careful
vetting of all aspects of expert testimony is especially important when
an expert provides testimony about causation.10
In
Kumho Tire Co, Ltd. v Carmichael,11
the U.S. Supreme Court made clear that the trial court’s gatekeeping
function applies to all expert testimony, not just to novel scientific
opinions.12
Other
Daubert factors identified in the federal Advisory Committee
Note include the following:
•
Whether experts are ‘‘proposing to testify about matters growing
naturally and directly out of research they have conducted independent
of the litigation, or whether they have developed their opinions expressly
for purposes of testifying.’’13
•
Whether the expert has adequately accounted for obvious alternative
explanations.14
•
Whether the expert ‘‘is being as careful as he would be
in his regular professional work outside his paid litigation consulting.’’15
•
Whether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.16
•
Other factors: No single factor is necessarily dispositive of the reliability
of a particular expert’s testimony.17
In
summary, the teachings of Daubert have now unequivocally arrived
in Michigan, and their application will no doubt take on a distinctly
Michigan flavor as the case law evolves under MRE 702. Based on Gilbert,
it appears that Daubert standards will be applied quite
rigorously in Michigan. Expert testimony in Michigan courts must be limited
to that based on reliable principles and methods, reliably applied, and
resting upon a sufficient evidentiary basis. The nature of that evidentiary
basis is the subject matter of the recent amendment to MRE 703.
Under
MRE 703, the facts or data in a particular case upon which an expert bases
an opinion must now be in evidence. This contrasts sharply with FRE 703,
which provides in relevant part:
If
of a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence in order for
the opinion or inference to be admitted.
The
federal approach allows experts to use the same kinds of data they typically
rely upon in their day-to-day work outside the courtroom. The theory is
that, if such data are adequate for life-and-death decisions in the non-judicial
world, they are sufficiently reliable for courtroom decision-making as
well. As stated in the Advisory Committee Note, FRE 703 was intended:
to
bring the judicial practice into line with the practice of the experts
themselves when not in court. Thus a physician in his own practice bases
his diagnosis on information from numerous sources and of considerable
variety, including statements by patients and relatives, reports and
opinions from nurses, technicians and other doctors, hospital records,
and X rays. Most of them are admissible in evidence, but only with the
expenditure of substantial time in producing and examining various authenticating
witnesses. The physician makes life-and-death decisions in reliance
upon them. His validation, expertly performed and subject to cross-examination,
ought to suffice for judicial purposes.
The
new Michigan approach rejects this philosophy, requiring an expert to
base opinions on facts or data that are not only admissible, but actually
admitted, in evidence at trial. This creates not only a divergence in
roles between an expert’s court-related work and the expert’s
everyday practice, but also a convergence of roles between the expert
and the sponsoring attorney that did not previously exist. In performing
their work, experts have not typically concerned themselves with whether
the facts they use are admissible in evidence; likewise, attorneys have
been loathe to dictate to their experts what facts they may or may not
rely upon in reaching their opinions. Indeed, it is a common cross-examination
device to suggest that the expert’s work is tainted because it has
been directed, at least in part, by counsel.
Now,
however, experts will have to be conscious at all times of the admissibility
of their data under the rules of evidence, since they are at risk of
having their work product thrown out once they get to court, should
the underlying facts prove inadmissible. Since most expert witnesses
are not equipped to make this legal determination, they must work
closely with counsel throughout the preparation of their opinions. Counsel,
too, must be aware, from the outset, of the facts and data their experts
will be relying upon, and guide them not to rely on facts or data that
will not ultimately be admissible, all the while taking care not to
intrude upon the experts’ independence. Counsel will also need
to determine, at the commencement of the case, if not before, what facts
or data the expert will need to rely on, to ensure that the appropriate
witnesses, documents, and other evidence are made available in discovery
and otherwise. Clearly, early and close collaboration between expert
and attorney will be required.
What
are the primary evidentiary problems under the new rule? In large part,
the issue is one of hearsay, i.e., the expert will no longer be able to
base an opinion upon out-of-court statements, written and oral, offered
to prove the truth of the matter asserted,18
unless a hearsay exception is applicable. Other than bringing
in a series of live witnesses to establish the basis for the expert’s
opinion, the primary strategies will involve (a) finding appropriate hearsay
exceptions and (b) finding alternative ways of introducing the factual
basis of the opinion into evidence.
Depending
on the area of expertise, there are a number of hearsay exceptions that
will be useful. The ‘‘business records’’ exception19
will be of major assistance to financial experts, as it will allow the
admission of most accounting and transactional records of a business.
It will not, however, allow the admission of documents prepared specifically
for purposes of the litigation.20
Business records may now be authenticated by written declaration,
eliminating the need for live testimony from a custodian of records.21
The public records exception22
will allow the admission of government data compilations and statistics.
The exception for market reports and other published compilations23
will cover information on such things as publicly-traded companies,
as well as compilations of market transaction data.24
Finally, where applicable, the ‘‘catch-all’’
exception25
may allow the admission of hearsay that fails to qualify under the other
exceptions, including hearsay that ‘‘nearly misses’’
the requirements of a specific exception.26
Even
where no hearsay exception is available, the underlying facts may be admissible
if obtained in the form of party-opponent admissions, which are defined
as non-hearsay.27 Such
admissions may be obtained through discovery depositions, as well as through
requests for admission and stipulations of fact.
In
addition, certain facts may be relied upon by the expert for their effect
on state of mind, a non-hearsay use because the facts are not being
offered to prove the truth of the matter asserted. For example, a business
valuation expert may base an opinion on information that the ‘‘hypothetical
willing buyer’’ would take into account in arriving at a
purchase price, such as the economic outlook for an industry, the reputation
of a business, the recognition of a brand name in the marketplace, the
sales prices of comparable businesses, and the like. So long as it is
information that would be relied upon by buyers in the particular market,
such information may be introduced in evidence as the basis of an opinion
as to value without running afoul of the hearsay rule, since the information
is not offered for its truth but for its impact on the price that would
be paid.28
The
recent amendments of MRE 702 and 703 should be studied closely by all
Michigan litigators, as they will have a tremendous impact on how experts
are selected, prepared, presented, and cross-examined. Through these
amendments, the Michigan Supreme Court has announced to the trial bar
that expert testimony is expected to meet standards of reliability,
and to be based on facts that are sufficient both to support the conclusions
reached and to pass the test of admissibility under the evidence rules.
It has also emphasized the trial courts’ ‘‘gatekeeping
role in excluding unproven expert theories and methodologies.’’
It
is now even more important than ever that trial counsel work closely with
their experts, starting early in the case, to ensure the admissibility
of both their opinions and the facts on which those opinions are based.
2. 470 Mich 749, 2004 WL 1632857
(July 22, 2004) (‘‘MRE 702 has since been amended explicitly
to incorporate Daubert’s standards of reliability.’’).
3.
Students of Aristotelian logic will recognize that the new requirements
may be neatly categorized as the minor premise, major premise, and conclusion
of a classic syllogism.
4. Only a minor language difference
remains. The Michigan version includes the phrase ‘‘the court
determines that’’ after the initial ‘‘If,’’
to ‘‘emphasize the centrality of the court’s gatekeeping
role.’’ Staff Note to MRE 702.
5.
See Gilbert, supra, citing FRE 702 cases throughout; People
v Barrera, 451 Mich 261, 267 (1998) (‘‘MRE 804(b)(3)
is modeled after Federal Evidentiary Rule 804(b)(3). Accordingly, we
can look to federal precedent for guidance.’’). See also
People v Meredith, 459 Mich 62, 70 n 15 (1998) (‘‘over
the years, we have freely cited explanatory sources from federal jurisprudence
for guidance in the construction of parallel provisions in the Michigan
Rules of Evidence’’).
6. This is already the case under
MCL 600.2955(1), adopting Daubert-like standards for scientific
opinions in cases involving death, personal injury or injury to property.
7.
Gilbert, supra, at n 46.
8. People v Poole, 444
Mich 151, 161 (1993) (‘‘[W]e are guided by the comment of
the Advisory Committee for the Federal Rules of Evidence concerning FRE
804(b)(3), on which the Michigan rule is modeled.’’).
9.
522 US 136 (1997), cited in Gilbert, supra, at n 52.
10. Gilbert, supra,
text at n 55, citing Diaz v Johnson Matthey, Inc, 893 F
Supp 358, 377 (D NJ 1995).
11.
526 US 137 (1999), cited in Gilbert, supra, at n 47.
12. See Gilbert, supra,
at n 52 (trial court’s gatekeeping responsibilities ‘‘are
mandated by MRE 702 irrespective of whether proffered evidence is ‘novel.’’’).
13.
Daubert v Merrell Dow Pharmaceuticals, Inc, 43 F3d 1311, 1317
(CA 9, 1995).
14. See Claar v Burlington
NRR, 29 F3d 499 (CA 9, 1994) (testimony excluded where the expert
failed to consider other obvious causes for the plaintiff’s condition).
15.
Sheehan v Daily Racing Form, Inc, 104 F3d 940, 942 (CA 7, 1997).
See Kumho, supra, 526 US at 152 (Daubert requires
the trial court to assure itself that the expert ‘‘employs
in the courtroom the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field’’).
16. See Kumho, supra,
526 US at 151 (Daubert’s general acceptance factor does
not ‘‘help show that an expert’s testimony is reliable
where the discipline itself lacks reliability, as, for example, do theories
grounded in any so-called generally accepted principles of astrology or
necromancy.’’)
17.
Id. at 152 (‘‘[W]e conclude that the trial judge must have
considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.’’).
See, e.g., Heller v Shaw Industries, Inc, 167 F3d 146, 155
(CA 3, 1999) (‘‘not only must each stage of the expert’s
testimony be reliable, but each stage must be evaluated practically
and flexibly without bright-line exclusionary (or inclusionary) rules.’’)
20. People v McDaniel,
469 Mich 409, 414, 670 NW2d 659 (2003).
24. US v Cassiere,
4 F3d 1006, 1018 (CA 1, 1993) (comparable real estate sales data).
25.
MRE 803(24). See, e.g., Pittsburgh Press Club v US, 579 F2d
751, 757–58 (CA 3, 1978) (survey results may be admissible under
catch-all exception).
26. People v Katt,
468 Mich 272, 286, 662 NW2d 12 (2003).
28. Spragg v Shore Care,
293 NJ Super 33, 57, 679 A2d 685 (1996) (statement offered to show probable
state of mind induced in listener not excluded as hearsay); US v 88
Cases, 187 F2d 967, 974 (CA 3, 1951) (survey results non-hearsay when offered
to show reaction of general public).
|