Applying Revised MRE 702 703

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 condu