Motion to Compel Disclosures of Expert Opinion in Michigan

Understanding the Importance of Expert Opinion Discovery

“As MCR 2.302(B)(4) recognizes, the facts known and opinions held by an expert are not work product. Those facts and opinions are subject to discovery by means of interrogatories, deposition, and further discovery ordered by the court.” (Backiel v. Sinai Hospital (1987) 163 Mich. App. 774, 778.)

Filing a Motion to Compel Expert Discovery

Discovery and disclosure of expert opinions developed for use in the litigation process is controlled by MCR 2.302(B)(4)(a) which provides in relevant part:

Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subrule (B)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

1. “A party may through interrogatories require another party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter about which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
2. A party may take the deposition of a person whom the other party expects to call as an expert witness at trial.
3. On motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions (pursuant to subrule [B][4][c]) concerning fees and expenses as the court deems appropriate.”

(Backiel v. Sinai Hospital (1987) 163 Mich. App. 774, 776 quoting MCR 2.302(B)(4)(a).)

Federal Standard vs. State Standard for Expert Discovery

“[The Court] note[s] a significant difference between the Michigan and federal court rules. MCR 2.302(B)(4)(a)(ii) permits the taking of the expert's deposition without first obtaining a court order. The federal rules do not.” (Backiel v. Sinai Hospital (1987) 163 Mich. App. 774, 778 Fed. R. Civ. P. 26(b)(4).) “In Michigan courts, complete discovery of the facts known and opinions held by an expert is virtually unimpeded. In many instances, the real, but unstated, reason for seeking discovery of written communications between the expert and the attorney is to intrude upon those mental impressions of the attorney that are protected by the work-product doctrine. In those instances when reasons for seeking the reports are legitimate, the MCR 2.302(B)(3)(a) allowance for discovery of documents and tangible things prepared in anticipation of litigation or for trial upon a showing of ‘substantial need’ and ‘undue hardship’ affords defendant an adequate remedy.” (Backiel v. Sinai Hospital (1987) 163 Mich. App. 774, 778-79.)

Standard of Review and Burdens of Proof for Motions to Compel Expert Discovery

“A motion to compel discovery is a matter within the trial court's discretion, and the court's decision to grant or deny a discovery motion will be reversed only if there has been an abuse of that discretion.” (Linebaugh v. Sheraton Mich Corp. (1993) 198 Mich. App. 335, 343 citing Williams v Logan (1990) 184 Mich. App. 472, 476.)

Citing Court Decisions for Motions to Compel Expert Discovery

“[T]he reason for the more restrictive discovery standard in subsection (b) is that ‘while pretrial exchange of discovery regarding experts to be used as witnesses aids in narrowing the issues, preparation of cross examination and the elimination of surprise at trial, there is no need for a comparable exchange of information regarding non-witness experts who act as consultants and advisors to counsel regarding the course the litigation should take.’”(Nelson Drainage Dist v. Bay (1991) 188 Mich. App. 501, 505.)

“The court rules do not define the word ‘expert.’ [It] look[s] instead to the manner in which the word ‘expert’ is generally used in the legal context presented. “The normal use of that term applies to a witness retained by a party in relation to litigation.’” (Spine Specialists of Mich., P.C. v. State Farm Mut. Auto. Ins. Co. (2016) 894 N.W.2d 749, 752 citing Ginnever v. Scroggins (1993) 867 S.W.2d 597, 599 [holding that “MCR 2.302(B)(4) applies to experts who are third parties to the litigation; such experts examine the facts from a distance, offer opinions, and have no financial stake in the outcome other than receiving a court-approved witness fee.”])