The right expert can make or break a case. Expert testimony comes with a certain aura of credibility and inherently carries more weight than other witness’s testimony. Experts are often deemed more reliable because of the specialized knowledge and experience behind their opinions. To no surprise then, discovery centered around an expert’s background and how they formed the basis of their opinions is constantly evolving in Michigan.
Generally, MCR 2.302 governs discovery in Michigan, and provides that parties may typically obtain discovery of any non-privileged matter that is proportional to the needs of the case, as long as the burden in producing the discovery does not outweigh the likely benefit. These parameters apply to the parties, as well as experts.
As one may imagine, parties often differ on what information is “proportional to the needs of the case” or “unduly burdensome” which results in discovery disputes. Sometimes, disputes can be resolved between the parties. However, when it comes to discovery disputes involving experts, the stakes are raised, and the parties may rely on the Court to issue a ruling on the issues.
Background of Micheli v. MAIPF
Recently, the Court of Appeals took up an expert discovery issue in the context of an expert witness that conducts independent medical examinations. In Micheli v. Mich. Auto. Ins. Placement Facility, the Plaintiff, Kathleen Micheli, alleged that she sustained injuries related to a car accident and sued multiple parties, including Citizens Insurance. Since Ms. Micheli was claiming injury, Citizens sought to have the alleged injuries evaluated by an independent medical expert, and retained an independent doctor to examine Ms. Micheli’s complaints.
After the independent medical exam, Ms. Micheli’s lawyer sent the expert witness a subpoena, which requested various information both related, and seemingly unrelated to the legal issues in the case. The subpoena included requests for the expert’s:
- Complete file regarding Ms. Micheli;
- The number of exams conducted by the expert doctor over the last four years; and
- Information concerning the expert doctor’s earnings/income related to performing independent medical examinations.
Citizens responded to the subpoena by filing a motion to quash, and a motion for a protective order. In the motion to quash, Citizens argued three central points:
- Plaintiff could not subpoena the requested documentation without seeking leave from the Trial Court under 2.302(B)(4)(a)(iii);
- Most of the information sought was irrelevant and not proportional to the needs of the case; and
- The subpoena merely sought to harass the expert doctor and impose an undue burden to dissuade her from testifying.
The Trial Court denied Citizens’ motion to quash the subpoena. Following the Trial Court’s Order, the independent expert retained personal counsel and filed an emergency application for leave to appeal, which was granted. The issue regarding the subpoena was then presented to the Court of Appeals.
Court of Appeals’ Analysis and Ruling
After analyzing the issues and arguments regarding the subpoena, the Court of Appeals issued an opinion offering guidance on how to evaluate the scope of a subpoena to an expert independent medical examiner. The Court then vacated the Trial Court’s ruling denying Citizens’ motion to quash the subpoena and remanded the issue back down to the lower Court so that the Trial Court could re-evaluate the expert discovery issue based on the guidance they set out in their opinion.
In their analysis, the Court of Appeals first addressed whether Plaintiff was required to seek leave from the Court to issue the subpoena to the expert, pursuant to MCR 2.302(B)(4)(a)(iii). They found Plaintiff did not need to seek leave from the Court because the subpoena sought records kept in the ordinary course of business, not records solely related to facts or opinions developed in anticipation of litigation or trial.
The Court of Appeals next addressed Citizens’ contentions that the subpoena was overly broad and beyond the scope of discovery contemplated by MCR 2.302(B)(1), and that complying with the subpoena was unduly burdensome for the doctor. The Court of Appeals noted that while Michigan’s discovery policy is generally broad, it is not without limits. Accordingly, discovery disputes should be evaluated on a case-by-case basis to ascertain whether the discovery sought is within the constraints of the Court rules.
As to the scope and relevance of the materials, the Court of Appeals disagreed with Citizens, and deemed the information relevant. The Court reasoned that although much of the substance of the information was unrelated to the specific legal issues of the case, the information did go to the doctor’s credibility. As to an expert witness, the Court concluded that information bearing on an expert’s credibility, was always relevant.
However, the Court of Appeals also concluded that even relevant information must be evaluated under MCR 2.302(B)(1), which obligates the Court to weigh the burden and expense of producing the proposed discovery against the value or likely benefit of the information sought. Otherwise, the court noted that discovery could be weaponized to dissuade experts from participating in litigation altogether.
In Micheli, even though the information was deemed relevant, the Court of Appeals found that the Trial Court did not meet their obligation to weigh the burden of complying with the subpoena against the likely benefit of the information. Thus, the Court vacated and remanded the issue back to the Trial Court so that the Court could evaluate whether complying with the subpoena presented an undue burden on the expert witness.
Micheli seemingly attempts to open a door into a new world of expert discovery by deeming an independent doctor’s financial information relevant to their credibility. Nonetheless, it also leaves the most pivotal question unanswered – How much of a burden is too much?
Some of the pertinent factors that may go into the analysis could be how time consuming or expensive it would be for the expert to gather the information, whether there are any less intrusive means of obtaining the information, or whether the information sought constitutes an unjust invasion of the expert’s privacy.
For now, the Trial Court seems to have the discretion to weigh the burden v. benefit mandated by MCR 2.302(B)(1) on a case-by-case basis. With this in mind, the venue and the judge will be paramount when evaluating your expert strategy.
In light of Micheli, an open line of communication with any potential expert would also be beneficial so that you each know the type of information that may be required from the expert and whether or not they will produce it if needed, so that they are allowed to testify. In a field where an expert may just give your case an edge, don’t allow your expert to freeze up at a subpoena, or you may just be left out in the cold.