Expert Opinion Based Solely on Beliefs Excluded
A circuit court did not err in excluding a plaintiff's medical expert witness' opinion proffered without supporting literature, and where the defense provided contradictory, peer-reviewed medical literature, the Michigan Supreme Court has ruled, reversing the state Court of Appeals.
In Elher v. Dwijen Misra et al, (Mich. Supreme Court, 2016 Feb 8), Paulette Elher sued Dr. Dwijen Misra, Jr., and the hospital and his medical group, for breaching the applicable standard of care after a laparoscopic cholecystectomy (gallbladder removal) in which Misra inadvertently clipped the common bile duct, resulting in an emergency surgery to remove the clip and repair the duct.
Before the surgery, Misra discussed its risks and benefits with Elher, and she signed a consent form specifically mentioning the risk of injury to the common bile duct. Misra testified that "[t]he view from the laparoscope is not optimal and not recognized as optimal and illusions can be created in which the [common bile duct] could be clipped." Misra estimated that this complication occurs in 0.5 to 2% of all laparoscopic gallbladder surgeries.
Elher's general surgery expert witness, Dr. Paul Priebe, a board certified general surgeon and professor at Case Western Reserve University, and Elher's only standard-of-care expert witness, testified in his deposition that injuring the common bile duct during a laparoscopic cholecystectomy is virtually always malpractice, absent extensive inflammation or scarring. Priebe provided no support for his opinion, in the literature or otherwise. During his deposition, Priebe admitted that he could not cite any colleague or medical literature that supported his opinion, as he had not discussed this standard of care with any colleague and "… medical literature does not discuss standard of care."
Misra moved for summary disposition, arguing that Priebe failed to meet the requirements of MRE 702 and MCL 600.2955 because his opinion was unreliable.
Elher responded that Priebe's opinion was reliable under the factors listed in MCL 600.2955, given the surgeon's experience and qualifications.
Misra replied by filing affidavits from several experts and at least one peer-reviewed publication supporting their opinions that clipping the common bile duct is a known potential complication of laparoscopic cholecystectomy.
The circuit court found that Elher had failed to address whether Priebe's expert testimony was reliable under MRE 702 or met any of the requirements of MCL 600.2955. There was, the circuit court stated, no evidence that Priebe's opinion was subjected to scientific testing and replication, no evidence that it was based on peer-reviewed publications, and no evidence that it was generally accepted in the relevant expert community. The circuit court concluded that Priebe's testimony was unreliable and inadmissible, granting summary disposition in favor of Misra.
Elher appealed. The Court of Appeals reversed the circuit court in a split opinion, the majority holding that the circuit court had abused its discretion. The experts disagreed on "an issue outside the realm of scientific methodology," the appellate court found.
The Michigan Supreme Court disagreed. Priebe was admittedly qualified to testify as an expert based on his extensive experience, but the Supreme Court found his opinion insufficiently reliable under MRE 702 and MCL 600.2955. It noted that even though the United States Supreme Court has stated that, in some cases, "the relevant reliability concerns may focus upon personal knowledge or experience," that court has also stated that even in those cases, the Daubert factors can be helpful, even if all of the factors may not apply in determining the reliability of scientific testimony. Accordingly, it is within a trial court's discretion how to determine reliability, the state Supreme Court ruled.
The appellate court erred in concluding that the issue debated by the experts was not studied in peer-reviewed articles, the state Supreme Court found. It noted that the appellate court majority had conceded that one article, which was peer-reviewed, concluded that "… misperception errors do not constitute negligence."
The circuit court was also within its discretion when it considered the lack of evidence regarding the general acceptance of Priebe's opinion, the Supreme Court stated. The appellate court majority concluded incorrectly that there was no widespread acceptance of any standard-of-care, because to do so, under MCL 600.2955(1)(e), would require the court to consider the degree of acceptance of the opinion in the expert community.
The Supreme Court did agree with the appellate majority that the scientific testing and replication factor in MCL 600.2955 did not fit the type of opinion at issue in this case and that the circuit court abused its discretion by relying on that factor. However, relying on that factor did not render the circuit court's decision an abuse of discretion. An expert's background and experience in regard to Daubert are generally insufficient to argue that an expert's opinion is reliable.
The concern in relying on Priebe's personal opinion was that he may have held himself to a higher, or different, standard of care than the medical community at large, a particularly important concern where the medical literature is contradictory, the court noted.
[Note: This decision is somewhat at odds with the recent case of Hooks v. Ferguson, Mich. App., Jan. 5, 2016 in which many of the same factors were in contention.]