Medical malpractice; Motion to exclude expert testimony; Danhoff v Fahim; MRE 702; MCL 600.2955(1); Elher v Misra; Edry v Adelman; Standard of care (SOC)

On remand from the Supreme Court, the court held in this interlocutory appeal that Danhoff did “not alter or negate the conclusion” in its prior opinion in this case that the trial court clearly erred in finding that plaintiffs’ SOC expert’s (Dr. S) “opinion testimony satisfied the factors in MCL 600.2955(1), and thus the trial court abused its discretion by admitting the testimony.” As a result, it again reversed and remanded “for entry of an order granting defendants’ motion to exclude” S’s testimony. The case was on remand for reconsideration in light of the Supreme Court’s decision in Danhoff. In its prior opinion, the court concluded the evidence was insufficient to show that S’s opinion was reliable. The court found that its “previous analysis comports with the standard announced in Danhoff, which reaffirmed the Supreme Court’s prior rulings in Elher and Edry, and confirmed as proper the application of MRE 702 and MCL 600.2955 upon which” the court’s opinion here rested. It concluded to “the extent that Danhoff clarifies that Elher and Edry do not preclude the admissibility of an expert’s opinion as reliable when the adverse medical event is rare and no supporting medical literature exists, the analysis in this case does not change.” The court noted that “unlike Danhoff, in this case the adverse medical event was not entirely rare and medical literature discussing the circumstances of the event was not absent. Moreover, unlike Danhoff, this Court in this case did not find the expert opinion testimony unreliable because it was unsupported by medical literature; rather, [it] held that [S’s] testimony and the literature proffered to support his opinion did not properly articulate a” SOC. The court noted that it “is insufficient to establish the [SOC] simply to describe a bad outcome and decry it; rather, the [SOC] should explain what a reasonably prudent doctor would do, in keeping with the standards of professional practice, to avoid that bad outcome.” The court found that the proffered published material here “suffers from the same defect inherent in [S’s] testimony.” Both the literature and S “merely counsel against a certain bad result, but without instructing how to avoid the bad result. The failure of [S’s] testimony” was that it did not articulate a SOC. The court’s holding was based on this deficiency, “not strictly on the lack of scientific literature in support of it, which was the issue addressed in Danhoff.”