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Although all judges agree he is qualified, victim's doctor expert cannot testify

Marilyn and George Kiefer sued Dr. John Markley, a hand surgeon, claiming a botched surgery.    They relied upon an expert witness who split his time between hand surgery, "the closely related area" of reconstructive surgery of the extremities, and cosmetic surgery.  The expert was board certified and spent more than forty percent of his time in hand surgery, and all three judges of the Court of Appeals agreed that as a matter of fact, he was well-qualified to testify with regard to whether the Defendant complied with the operable standard of care.  Nevertheless, two of the judges agreed to strike him as a witness, contending that under a tort "reform" statute, he needed to dedicate more than fifty percent of his time to hand surgery in order to testify. 

The dissenting judge would not agree with this interpretation.  Under the law as it existed before the "Engler Majority" controlled the Michigan Supreme Court, it was up to Michigan judges to decide which witnesses were qualified to testify and what testimony would be allowed in court.  The Engler Majority allowed the insurance-oriented tort "reformers" to take away this judicial discretion by restrictive stipulations that are abitrary and in some cases irrelevant.  The net result of abdicating this responsibility is the promotion of decisions like this decision in  Kiefer v. Markley:  judges are precluded from basing their decisions on common sense and good judgment.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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