(dissenting). The majority holds that the Court of Appeals was precluded from deciding certain evidentiary issues on remand from this Court because of the law-of-the-case doctrine. I *62disagree. I would hold that this Court’s order remanding the case to the Court of Appeals for reconsideration included jurisdiction to decide the evidentiary issues. Determination of the applicability of the jury instruction at issue necessarily included the evaluation of all arguably relevant evidence. In turn, this evaluation required a decision whether such evidence was properly admitted.
The evidence presented at trial entitled the plaintiff to receive a jury instruction on the presumption of due care. I would hold that it was error requiring reversal for the trial court to refuse to give the requested "presumption of due care instruction,” SJI2d 10.08. Therefore, I respectfully dissent.
i
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff’s decedent, L. Dee Johnson, was killed in a two car accident which occurred on September 11, 1979. Donald White was the driver of the vehicle that collided with the decedent’s car. Plaintiff alleged that White was negligent in the operation of his vehicle, thereby contributing to the causation of the accident. A second defendant, Francis Beadle, owned and operated the Avalon Bar. The third defendant in the action was the Montmorency County Road Commission. Prior to trial, Francis Beadle settled with the plaintiff. Defendant Montmorency County settled with plaintiff during the appeal process. Only Donald White remains as a defendant.
At trial, plaintiff alleged that three factors primarily contributed to the accident. First, plaintiff complained of the negligent driving of defendant Donald White. Second, plaintiff complained of the *63improper location of the stop sign for eastbound traffic on Avalon Lake Road. Plaintiff alleged that placement of the stop sign more than one hundred feet away from the County Road 451 intersection caused the decedent to approach the intersection in a hazardous manner. Third, plaintiff complained that a vehicle leaving the Avalon Bar parking lot obstructed the view of the defendant, thus precluding defendant from having a clear view of the decedent’s car as it entered the intersection.
After a five-day trial, the jury returned a verdict of no cause of action in favor of defendant Donald White. The plaintiff appealed in the Court of Appeals, raising six issues. The Court of Appeals found one of these issues dispositive in that it required the grant of a new trial. This issue involved the trial court’s refusal to give a requested standard jury instruction, SJI2d 10.08, regarding the presumption of due care. On the basis of this Court’s decision in Javis v Ypsilanti Bd of Ed, 393 Mich 689; 227 NW2d 543 (1975), the Court of Appeals vacated the judgment of the trial court and granted plaintiff a new trial.1 In Javis, this Court established a prophylactic rule of reversal in cases where a trial court denies a proper request for a standard jury instruction. Id. at 702.
After its disposition of the appeal on the basis of the error in refusing to give the requested jury instruction, the Court of Appeals went on to discuss several additional issues. Although they were unnecessary to the disposition of the appeal, the Court felt it likely that these issues could possibly arise on remand in the trial court.2 Two of the issues discussed in this portion of the opinion involve assertions by the plaintiff that the trial *64court impermissibly allowed certain testimony into evidence.
First, plaintiff argued that the testimony of Francis Beadle regarding a statement made by an unidentified witness after the accident was inadmissible hearsay. Second, the plaintiff complained that the trial court improperly allowed the testimony of Deputy Schwartz of the Montmorency County Sheriff’s Department regarding the cause of the accident. Plaintiff asserted that the defendant did not offer a sufficient foundation for Deputy Schwartz to testify as an expert witness.
A divided Court of Appeals panel found that the testimony of Francis Beadle contained a declaration of an admissible present sense impression.3 Likewise, with respect to the testimony of Deputy Schwartz, the divided panel found that sufficient foundation had been laid for him to testify with regard to the cause of the accident.4
Both parties appealed in this Court from the Court of Appeals judgment granting the plaintiff a new trial. The defendant contested the Court of Appeals holding regarding the requested jury instruction. The plaintiff cross-appealed, asserting, inter alia, that the trial court and the Court of Appeals had erred in holding that the testimony of Francis Beadle and Deputy Schwartz was admissible. This Court issued the following order in response to the applications for leave to appeal and cross-appeal:
Pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, the case is remanded to the Court of Appeals for reconsideration in light of Johnson v Corbet, 423 Mich 304 [377 NW2d 713] (1985). Leave to appeal as cross-appellant is denied be*65cause the Court is not persuaded that it should review the questions presented. [424 Mich 869; 380 NW2d 39 (1986).]
On remand, the same Court of Appeals panel held that the standard of review announced in Johnson v Corbet, as applied to the instant case, required a new trial.5 Under that standard, failure to give a properly requested jury instruction requires reversal only if it "amounts to an error or defect’ in the trial so that the failure to set aside the verdict would be inconsistent with substantial justice.’ ” Johnson v Corbet, 423 Mich 304, 326; 377 NW2d 713 (1985); MCR 2.613(A). After reaffirming its prior decision that the plaintiff was entitled to a new trial,6 the Court of Appeals addressed the evidentiary issues involving the testimony of Francis Beadle and Deputy Schwartz. This time, however, the panel unanimously found that the testimony was inadmissible. Johnson v White (On Remand), 154 Mich App 425, 429; 397 NW2d 555 (1986). Defendant appealed in this Court, asserting that the Court of Appeals erred in granting the plaintiff a new trial and in holding that the testimony of Francis Beadle and Deputy Schwartz was inadmissible.7 We granted leave to appeal. 428 Mich 857 (1987).
ii
THE COURT OF APPEALS JURISDICTION ON REMAND
In remanding this case to the Court of Appeals for reconsideration in light of Johnson v Corbet, this Court in effect required the Court of Appeals to make the determination whether the failure of *66the trial court to give the standard jury instruction requested by the plaintiff was an error resulting in "such unfair prejudice to the [plaintiff] that the failure to vacate the jury verdict would be inconsistent with substantial justice.’ ” Johnson v Corbet, supra at 327; MCR 2.613. Compliance with our remand order necessarily included a review of the evidence to determine whether the use of SJI2d 10.08 was required under MCR 2.516(D)(2).
MCR 2.516(D)(2) provides:
Pertinent portions of the Michigan Standard Jury Instructions (sji) must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party. [Emphasis added.]
In my view, the Court of Appeals was fully within its jurisdiction on remand when it determined that certain testimony weighed by the trial court in its analysis of the applicability of SJI2d 10.08 was inadmissible. The determination of applicability must be based on competent evidence. Therefore, I disagree with the majority’s conclusion that the law-of-the-case doctrine precluded Court of Appeals jurisdiction to consider the admissibility of this evidence on remand.
LAW-OF-THE-CASE DOCTRINE
The law-of-the-case doctrine has been stated (as it applies to a case on remand) as follows:
After the case is remanded the court on a second appeal will consider only those questions arising subsequently to the remand or which were not adjudicated in the former determination. [5B CJS, Appeal and Error, § 1823, p 192.]
*67This general rule is qualified, however; "[T]he former decision may be reconsidered and reversed under exceptional circumstances and when cogent reasons therefor exist.” Id., § 1824, p 194.
In this case, the Court remanded to the Court of Appeals for reconsideration in light of Johnson v Corbet. As stated previously, application of the Johnson v Corbet standard necessarily requires consideration of evidentiary issues. Here, the Court of Appeals panel which had previously considered the evidentiary issues voted unanimously on reconsideration to reverse its former conclusion.
Thus, this case is easily distinguishable from the cases cited by the majority for the proposition that the Court of Appeals lacked jurisdiction to consider the evidentiary issues. In CAF Investment Co v Saginaw Twp, 410 Mich 428; 302 NW2d 164 (1981), this Court reversed the decision of the Tax Commission and remanded the case to the newly formed Tax Tribunal for a hearing de novo to determine the true cash value of certain property. Upon remand, the Tax Tribunal predicated valuation on the amount of income the plaintiffs property was "capable of producing” in direct contravention of this Court’s directions to use the actual income for valuation purposes. We held that the Court of Appeals was correct in reversing and remanding the case for a correct valuation because its prior determination that actual income was to be used for valuation purposes was the law of the case and therefore not subject to review by the Tax Tribunal. Id. at 456-457.
The instant case is not similar to CAF Investment Co. In that case, the Tax Tribunal violated, specific directions from this Court on remand. Here, however, the Court of Appeals merely sought to comply with our mandate on remand to *68fully consider all evidentiary issues in reaching its determination whether SJI2d 10.08 should have been given under the standard enunciated in Johnson v Corbet and the applicable court rule.
Similarly, the majority’s citations of Lyon v Ingham Circuit Judge, 37 Mich 378 (1877), and Thompson v Hurson, 206 Mich 139; 172 NW 544 (1919), are not on point. In both cases, the parties petitioned lower courts on remand to modify decrees of the Supreme Court. In both cases, we held on appeal that such a modification would be a violation of the law-of-the-case doctrine. The Court in Lyon v Ingham Circuit Judge, supra at 378, stated:
The court rendering the conclusive judgment may have a discretionary authority to review and revise its own action, but if that court shall have taken the case on appeal, and shall have remanded it after judgment, the court below can have no similar authority, because if it could and should exercise it, it would really be reviewing and revising the action of its superior; which would be absurd.
The Court in Lyon recognized that the law-of-the-case doctrine is qualified to the extent that an appellate court may, under certain circumstances, reconsider or review and subsequently revise its prior action. That is precisely what the Court of Appeals did here. It did not review or revise any action of a superior court. A panel which had previously split on an evidentiary issue unanimously determined that its prior ruling was in error and therefore modified that prior ruling.
Another recognized exception to the law-of-the-case doctrine involves revision of prior determinations where those determinations were made as dicta. 5 Am Jur 2d, Appeal and Error, §753, pp *69196-197. In this case, it is clear that the Court of Appeals discussion of the evidentiary issues in the first appeal was not essential to the holding that the plaintiff was entitled to a new trial. The Court of Appeals expressly stated that it found the issue of the failure to give the standard jury instruction a dispositive one and that the subsequent discussion of evidentiary issues was merely an attempt to clarify issues which might arise on remand.8 Such dicta may be revised without violation of the doctrine of the law of the case. The doctrine applies only to so much of an opinion expressed by the appellate court in a former decision in the same case as was essential to the determination then made by the appellate court. Id.
hi
EVIDENTIARY ISSUES
A. TESTIMONY OF FRANCIS BEADLE
Francis Beadle, the owner of the Avalon Bar, was permitted to testify with regard to the statements of an unidentified bystander shortly after the accident:
Q. Tell us about the conversation that you had with that man.
A. Well the man — I didn’t really say anything to him. He just started telling me what happened.
Q. And what did he say?
A. He said that he was following Mr. Johnson and . . .
Mr. Sumpter: I will object, Your Honor, on the basis of hearsay.
The Court: Objection overruled.
The Witness: And that Mr. Johnson had never *70stopped for the corner. He pulled right on out, and that’s when the accident happened.
The defendant argues that this statement should be found admissible pursuant both to MRE 803(1), present sense impression, and to MRE 803(2), excited utterance. I agree with Judge Kelly of the Court of Appeals in his dissent to the first opinion of the Court of Appeals in this case. This testimony is archetypical hearsay and does not fit within any exception to the hearsay rule. It is clear from Mr. Beadle’s testimony that there was a substantial period of time between the accident and the time at which he heard the statement by the unidentified witness to the accident. There is no indication in the testimony of Mr. Beadle that the witness had a reason to be excited. Nor is there any evidence that the statement was made before there was time to misrepresent or contrive to mislead investigation of the accident. See People v Petrella, 124 Mich App 745, 760; 336 NW2d 761 (1983), lv gtd on other grounds 419 Mich 922 (1984). It should also be noted that Mr. Beadle did not reveal the occurrence of this purported conversation until after he was made a party defendant in the instant litigation. There is inherent unreliability and bias in this testimony. Therefore, I would hold that this testimony was inadmissible hearsay.
B. TESTIMONY OF DEPUTY SCHWARTZ
The testimony presented to establish a foundation for the testimony of Deputy Schwartz was insufficient. It is unclear from the testimony whether Deputy Schwartz interviewed the unidentified witness described in the testimony of Mr. Beadle. He did interview defendant White, but *71made findings inconsistent with the statements of defendant White at the scene of the accident and White’s testimony at trial. Thus, because defendant White’s testimony does not substantiate the conclusions drawn by Deputy Schwartz and there is no indication that Schwartz interviewed any other witnesses of the accident, it was improper for the trial court to allow this testimony to be admitted. There was insufficient foundation.
iv
THE PRESUMPTION OF DUE CARE INSTRUCTION
SJI2d 10.08 contains the following language:
Presumption of Ordinary Care — Death Case
Because [name of decedent] has died and cannot testify, you must presume that [he/she] was in the exercise of ordinary care for [his/her] safety (and for the safety of others) at and before the time of the occurrence, unless you find the presumption is overcome by the evidence.
In deciding whether the presumption is overcome, you must weigh the presumption with all the evidence. If, after so weighing, you are unable to decide that the presumption has been overcome, then you must find that [name of decedent] was not negligent.
This instruction is to be given in a negligence action when one of the parties is deceased. See Note on Use, SJI2d 10.08. The effect of the presumption is to place upon the defendant the burden of showing that the decedent failed to exercise due care. Salvati v Dep’t of State Hwys, 92 Mich App 452, 462; 285 NW2d 326 (1979). The use of the presumption has been described as follows:
When direct, positive and credible rebutting evidence is introduced, the presumption ceases to operate; but when circumstantial evidence of doubtful value is the only rebutting evidence offered, the question should be submitted to the *72jury, and if they decide that the circumstantial evidence should be disregarded, the presumption is still sufficient to establish plaintiffs case as to the exercise of proper care by the deceased. [Gillett v Michigan United Traction Co, 205 Mich 410, 415-416; 171 NW 536 (1919).]
The majority holds that the failure to give SJI2d 10.08 does not require reversal in this case, whether or not it was error. They assert that it was sufficient for the trial judge merely to instruct the jury on the operation of comparative negligence. The Court states:
[T]he jury was clearly informed that the negligence of the decedent, if any, would not bar recovery by the plaintiff against the defendant, but that the total amount of damages to which the plaintiff would otherwise be entitled would be reduced by the percentage of the decedent’s negligence that was a proximate cause of his death. [Ante, p 60.]
This argument ignores the rule that the presumption of due care operates in favor of a decedent where there has been no direct evidence of negligence on the part of the decedent. In this case, there has been no such direct evidence submitted by the defendant. Therefore, the operation of the presumption was necessary to negate any circumstantial evidence that the defendant put forth to establish negligence on the part of the decedent. This Court has stated:
There is no reason why an unsuccessful attempt to show the negligence of deceased in some particular respect should place upon the plaintiff the burden of proving by affirmative evidence that the deceased used due care in all respects — a burden which did not rest upon him before the attempt was made. [Gillett, supra at 416.]
The majority also asserts that the special verdict form that prescribes the order of jury deliberations *73somehow negated any error resulting from failure to give SJI2d 10.08. This is speculative at best. The Court notes that the first question on the form required the jury to determine whether defendant White was negligent. The second question required the jury to determine whether the defendant road commission was negligent. If the answer was "no” to both of those questions, the jury was instructed not to proceed further. The majority relies on the jury’s negative answer to these two questions to argue that the jury would have never reached question six asking whether Mr. Johnson was negligent and that therefore there was no need to give the instruction on the presumption of due care. This argument fails to take into account the possibility that the jury, in the absence of the presumption of due care instruction, may have considered only the circumstantial evidence presented by the defendant to establish the decedent’s negligence. This would have colored its consideration as to whether defendant White or the road commission was negligent. Thus, having influenced the answer to the first two questions, the failure to give the instruction may have in fact precluded the jury from reaching question six, which would have been directly affected by the jury instruction at issue.
CONCLUSION
For the above reasons, I would hold that, on these facts, the Court of Appeals had the jurisdiction to determine appropriate evidentiary issues on remand. I would also hold that the trial court’s failure to give SJI2d 10.08, the presumption-of-due-care instruction, was harmful error and that failure to grant the plaintiff a new trial is inconsistent with substantial justice. Therefore, I respectfully dissent.
Levin, J., concurred with Archer, J.144 Mich App 458, 464; 376 NW2d 130 (1985).
Id.
144 Mich App 467.
Id. at 470.
154 Mich App 425, 428; 397 NW2d 555 (1986).
Id. at 427-428.
Id. at 428-429.
144 Mich App 464.