MRE 706 Interpretation
MRE 706 states in pertinent part:
(a) Appointment. the court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. the court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. a witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. a witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. the witness shall be subject to cross-examination by each party, including a party calling the witness.
In Carson Fischer Potts & Hyman v. Hyman, 220 Mich. App. 116, 119-121; 559 N.W.2d 54 (1996), the trial court cited MRE 706 as authority for the appointment of the special master; in this case the court relied on MCR 1.105. However, neither the rule of evidence nor the court rule expressly authorizes such an appointment.
Most importantly, in both cases, the master's proposed findings of fact and conclusions of law were mere recommendations to the trial court: "If the expert's recommendation was adopted, the trial court would enter judgment in the same manner as if the action had been tried by the court." Carson, supra at 123.
Further, the order in Carson, like the order herein appointing the special master, "permitted the parties to file written objections to the final findings and recommendations and permitted the court to adopt the expert's recommendation and judgment, to modify the recommendation, or to refer the recommendation to the expert with further instructions." Carson, 220 Mich. App. at 121.