The opinion
M. E. Kobza, J.
(concurring in part and dissenting in part). I agree with the result of this case: the trial court exceeded its authority in appointing an expert who could “make findings of fact, conclusions of law and a final recommendation and proposed judgment as to the disposition of this matter by August 31, 1993.” I agree with the portion of the opinion that declares that there is no constitutional authority for a trial court to delegate specific judicial functions to an expert witness. Furthermore, the constitution of this state reserves the power to decide all cases filed before the court system in this state to judges duly elected or appointed to those positions.
However, I disagree that this case should be totally reversed without an opportunity being given to the *125 trial court to provide a more suitable remedy in conformity with MRE 706. That rule, which has been quoted in the majority opinion, ante at 122, allows a trial court to appoint expert witnesses and take testimony for the court from those witnesses. Such witnesses are then subject to cross-examination by each party. While in this case the court exceeded the authority granted under the rules of evidence, I believe that can easily be remedied with the ability to salvage the work of the two experts who performed their duties at the request of the court. A more appropriate remedy, in my opinion, would simply be to remand the case to take the testimony in the case that would normally be allowed, specifically as it pertains to the experts in this case, to allow the experts to be subject to cross-examination, and to consider their evidence with all the other expert or lay testimony evidence presented to the court. The value of their efforts will not, therefore, be lost, nor will such a remedy destroy the concept that a court may draw upon experts to assist it, especially in cases where there is a significant amount of material that must be digested, analyzed, and synthesized so that it is in a more digestible form for the court. Trial courts are not experts in all areas of disciplines upon which testimony touches in many cases. The assistance of experts is always helpful, especially in those cases where opinions or conclusions drawn from the analysis of volumes of material are going to be critical to the court’s decision.
The majority opinion, after stating that the function of an expert is to supply expert testimony, suggests that the analysis of the material that was undertaken in this case was comparable to the testimony given in *126 the cited cases that held that an expert is prohibited from telling a factfinder how to decide the case. Although those cases do indeed suggest that an expert is prohibited from telling the factfinder how to decide the case, I believe that is an overly narrow interpretation of the function that experts play. For example the majority states: “Therefore, it is error to permit a witness to give the witness’ own opinion or interpretation of the facts because doing so would invade the province of the jury.” Ante at 123. Although I agree in principle with that statement, it should be considered in conjunction with MRE 702, which provides:
If the court determines that recognized, scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify therefore, in the form of an opinion or otherwise. [Emphasis added.]
In medical malpractice cases, the function of an expert is to testify whether the actions of a defendant doctor have violated a standard of medical care of a physician practicing in that area. That conclusion or opinion has to be based on an analysis of all the other testimony, records, interrogatories, and evidence testified to at trial. In short, the expert is analyzing and opining concerning the same subject that the jurors will be required to determine. It is the expert’s opinion concerning the interpretation of the facts that we are after, not the finding of those facts. As I understand this case, certain activities of the law firm were under scrutiny and those activities possibly would be better understood with the assistance of these two experts in synthesizing the material presented by the *127 parties. However, the experts should not, nor would they be permitted to, draw legal conclusions or factual conclusions based on those facts. Rather they can assist the trier of fact by their analysis and opinions.
It is in this sense, then, that I dissent from the final determination of the majority and would allow the case to be remanded for the trial court to utilize the experts, if it could, in a manner that is allowed under both MRE 706 and MRE 702. I do not believe this requires a determination on our part that none of their testimony should be used at this time. Rather, I believe it more appropriate to allow the court to admit the testimony with the guidance of this opinion, as set forth in the court rules. Therefore, I concur that the trial court has exceeded its authority under the court rules, but dissent from the disposition of the majority and would remand for preservation of that portion of that work performed by the two experts appointed by the court to assist the court in its job.