Issues: Medical malpractice; Expert testimony; MRE 702; MCL 600.2955; Gilbert v. DaimlerChrysler Corp.; Chapin v. A & L Parts, Inc.; Kumho Tire Co., Ltd. v. Carmichael; Standard of care opinions and testing or "replication"; Palandjian v. Foster (MA); Peer-review publication; Edry v. Adelman; The "general acceptance" factor; Daubert v. Merrell Dow Pharms., Inc.; Frye v. United States (DC Cir.); Dickenson v. Cardiac & Thoracic Surgery of E. TN, PC (6th Cir.); The role of "gatekeeping" courts; Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co. (1st Cir.); United States v. Sandoval-Mendoza (9th Cir.); Applicability of res ipsa loquitur; Jones v. Porretta; Maroules v. Jumbo, Inc. (7th Cir.)

Court: Michigan Court of Appeals (Published)

Case Name: Elher v. Misra

e-Journal Number: 58672

Judge(s): Gleicher and Beckering; Concurring in part, Dissenting in part – Hoekstra


The court held that the trial court incorrectly applied MRE 702 and abused its discretion by excluding the testimony of plaintiff's expert (Dr. P). The reliability factors it invoked to reject P's standard of care opinion "lacked relevance to the testimony offered and the evidence received." The evidence validated that P "grounded his opinions in 'good science.'" However, the trial court correctly concluded that the res ipsa loquitur doctrine did not apply to plaintiff's medical malpractice claims. Thus, the court reversed in part, affirmed in part, and remanded for further proceedings. Defendant-Misra, a general surgeon, "clipped the wrong bile duct" during plaintiff's laparoscopic gallbladder surgery. P, "a general surgeon with extensive experience in the procedure, testified that clipping a patient's common bile duct during an otherwise uncomplicated operation is a breach of the standard of care. Defendants' expert opined that bile duct injuries frequently occur even absent professional negligence." Defendants argued that P's testimony did not qualify as reliable under MRE 702 because P could not specifically identify any peer-reviewed literature or other physicians who supported his viewpoint. The trial court agreed with defendants and dismissed the case. The court concluded that neither "the soundness of a scientific methodology nor the legitimacy of underlying data plays a role here. Rather, the experts' disagreement focuses on scientifically sustainable and equally justifiable conclusions. MRE 702 requires that an expert's opinion rest on reliable scientific principles. Once that foundation has been established, MRE 702 does not empower trial courts to determine which of several competing expert opinions enjoys more support." Thus, a jury must decide whether to credit P's views. The court noted that his "qualifications - his 'knowledge, skill, experience, training, [and] education - are not in dispute. Given the number of laparoscopic gallbladder surgeries he has performed (more than 2,000) and his board certification as a general surgeon, he is qualified to express opinions regarding the standard of care." The court noted that "no testing or 'replication' underlies either side's expert opinions" and no evidence supported that "the standard-of-care issue debated by the parties' experts has been tested, analyzed, investigated or studied in peer-reviewed articles." Finally, the court concluded that P's opinion, "distilled to its essence, hardly qualifies as novel, groundbreaking, or even dubious." Relying on Misra's sworn testimony, P opined that "Dr. Misra breached the standard of care by clipping the wrong duct." P's "extensive experience in laprascopic gallbladder surgery qualified him to opine as to what could and should have been seen when the anatomy is clearly delineated."


Full Text Opinion
Back to e-Journal Mobile
News/Moves | Classifieds | Contacts | Full Version

© 2014 State Bar of Michigan