Michigan Expert Witness Rules: What Litigators Need to Know

In Michigan civil litigation, expert witnesses play a pivotal role in shaping the outcome of complex cases, from medical malpractice to product liability claims. However, expert testimony is tightly regulated by a combination of court rules, statutes, and procedural expectations that differ in key ways from federal court or other jurisdictions. Attorneys who fail to understand Michigan’s expert witness rules risk not only exclusion of critical testimony but potential dismissal of their case.

Designation Requirements: MCR 2.302

Michigan does not follow the federal model of requiring a formal “designation” of expert witnesses early in the litigation process. Instead, expert identification is generally governed by Michigan Court Rules (MCR) and judicial scheduling orders. Under MCR 2.302(B)(4), a party must disclose the identity of any expert witness expected to testify at trial upon request through interrogatories or other discovery mechanisms.

However, in medical malpractice cases, the process is far more rigid. Pursuant to MCL 600.2912d, a plaintiff must include in the Notice of Intent to File a Claim (NOI) the name of any health professional expected to testify and the subject matter of their expected testimony. This requirement occurs before a complaint is filed, and a failure to adhere to this procedural step has been grounds for dismissal in multiple appellate rulings.

Expert Disclosure Process

Expert discovery in Michigan is largely driven by interrogatories and case-specific discovery orders. As a general practice, once expert witnesses are identified, parties exchange:

• A summary of the expert’s opinions and the basis for those opinions
• The facts or data considered by the expert in forming their conclusions
• The expert’s qualifications, including a CV
• A list of publications, if requested
• A record of testimony in prior cases (usually within a specified number of years)

Michigan does not impose a mandatory rule requiring a full written expert report in all civil cases, unlike the federal system under FRCP 26(a)(2)(B). However, trial courts often impose tailored requirements during pretrial conferences or via scheduling orders, especially in complex or high-value cases.

Required Declarations

There is no general statutory requirement in Michigan for expert witnesses to submit signed declarations or affidavits as part of their disclosure. However, in specific instances—such as medical malpractice—a sworn affidavit of merit must accompany the complaint. This affidavit, signed by a qualified medical expert, must attest that the defendant breached the applicable standard of care and that this breach caused the plaintiff’s injuries.

This affidavit functions not merely as a procedural formality but as substantive evidence of the viability of the claim. Its omission, or defects in the expert’s qualifications under MCL 600.2169, has led to case dismissals and remains a critical component of pre-suit compliance.

Fees and Compensation

Michigan does not regulate expert witness fees at the state level. Compensation is subject to private agreement between the expert and the retaining party. However, under MCR 2.302(B)(4)(c), if an expert is not retained but is instead consulted by an adverse party, the court may order compensation for the expert’s time spent in discovery, particularly during depositions. The requesting party is generally responsible for these costs.

Courts have discretion to deny excessive fee demands, and in cases where fee disputes arise, judges may intervene to determine a reasonable rate based on prevailing market standards, complexity of testimony, and the expert’s qualifications.

Discovery Scope and Limitations

Under Michigan law, the scope of expert discovery is generally confined to facts known and opinions held by experts expected to testify. Parties may obtain this information through interrogatories or depositions. For experts not expected to testify, discovery is allowed only upon a showing of “exceptional circumstances,” consistent with MCR 2.302(B)(4)(b).

The rules allow depositions of expert witnesses, but courts retain wide discretion to limit such discovery. Protective orders are frequently sought in cases involving proprietary data, ongoing research, or confidential information. Michigan courts typically weigh the necessity of the discovery against the burden or prejudice to the expert or retaining party.

Admissibility Standards

Michigan adheres to the Daubert standard for the admissibility of expert testimony, as adopted by the Michigan Supreme Court in Gilbert v DaimlerChrysler Corp, 470 Mich 749 (2004). In that decision, the court rejected the more lenient Frye test and emphasized the role of trial judges as “gatekeepers” in ensuring expert testimony is both relevant and reliable.

Under this framework, an expert’s opinion must be based on:

• Scientific knowledge that is reliable
• Principles and methods that are generally accepted in the relevant field
• Application of those methods to the facts of the case in a valid manner

Trial courts routinely conduct Daubert hearings to evaluate the admissibility of contested expert evidence. A failure to establish reliability or qualifications under MRE 702 can result in exclusion of testimony, regardless of the expert’s experience.

Key Deadlines & Strategy Notes

Deadlines for expert disclosures and reports in Michigan are typically governed by court-issued scheduling orders. However, in medical malpractice cases, plaintiffs must comply with strict pre-filing deadlines, including the 182-day waiting period under MCL 600.2912b, during which the Notice of Intent and expert details must be served.

Strategically, attorneys are advised to:

• Engage experts early to ensure compliance with pre-suit affidavit requirements
• Ensure experts meet statutory qualifications, particularly in medical cases
• Prepare for potential Daubert challenges by documenting the expert’s methodology, peer-reviewed sources, and application to case-specific facts
• Monitor local court practices, as some Michigan counties impose additional procedural rules on expert discovery

State-Specific Statutes & Local Rules

Several state-specific statutes govern expert testimony in Michigan, particularly in healthcare-related litigation:

• MCL 600.2169 – Specifies the criteria for medical experts, including board certification and active clinical practice
• MCL 600.2912d – Requires the affidavit of merit in malpractice claims
• MCL 600.2912b – Establishes pre-suit notice requirements

In addition to statewide statutes, Michigan's 57 circuit courts may enforce localized rules or administrative orders impacting expert disclosures. For example, the Third Judicial Circuit (Wayne County) often mandates early case evaluation summaries that include expert witness disclosures and opinion summaries.

Attorneys practicing in Michigan must remain alert to both statewide mandates and jurisdiction-specific procedures to ensure compliance and preserve the admissibility of crucial expert testimony. Failing to do so may significantly undermine a client’s case, regardless of its merits.