On February 8, the Michigan Supreme Court upheld the trial court’s grant of summary disposition for the defendants in a medical malpractice case because the plaintiff’s expert was not shown to be sufficiently reliable.
On August 18, 2008, Paulette Elher underwent surgery to remove her gallbladder. Prior to the surgery, performed by Dr. Dwijen Misra, Elher signed a consent form that specifically mentioned a risk of injury to the common bile duct. During the surgery, Dr. Misra inadvertently clipped the bile duct, resulting in the plaintiff having to undergo emergency surgery.
In February 2011, Elher filed suit in Oakland Circuit Court, alleging that Dr. Misra breached the applicable standard of care by clipping the common bile duct. Elher’s sole standard-of-care expert was Priebe, a board-certified general surgeon and professor at Case Western Reserve University. At his deposition, Priebe opined that absent extensive scarring or inflammation, it is almost always a breach to clip the common bile duct during the type of procedure performed on Elher. He did not provide any support for his opinion.
The defendants moved for summary disposition, arguing in part that Priebe failed to meet the requirements of Michigan Rule of Evidence 702 and Michigan Compiled Law 600.2955 (both governing expert testimony) because his opinion was unreliable. Elher responded that expert testimony was not required because Dr. Misra’s negligence would be apparent even to a layperson, and Priebe’s opinion was reliable given his experience and qualifications. The defendants replied by filing affidavits from several experts and at least one peer-reviewed publication supporting their opinion that clipping the common bile duct is a known potential complication during this type of procedure.
Concluding that there was no evidence that Priebe’s opinion and its basis were the subject of peer-reviewed publications, and no evidence regarding the degree to which his opinion and its basis were generally accepted in the relevant expert community, the circuit court concluded that Priebe’s testimony was inadmissible. The court therefore granted summary disposition for the defendants.
The plaintiff appealed, and the appeals court reversed in a split opinion. The majority held that the circuit court incorrectly applied MRE 702 and abused its discretion by concluding that Priebe’s testimony was inadmissible. The majority characterized the case as a difference of opinion among qualified experts and concluded that the experts disagreed on an issue outside the realm of scientific methodology, and therefore neither MRE 702 nor MCL 600.2955 barred Priebe’s testimony.
On appeal to the high court, the defendants contended that the circuit court did not abuse its discretion in excluding Priebe’s testimony. The Michigan Supreme Court agreed.
The court first rejected the plaintiff’s argument that the breach of the standard of care was so obvious that no expert testimony was required. Priebe himself conceded that some professionals believe that clipping the common bile duct is not necessarily a breach of the standard of care. Therefore, expert testimony was required.
The court next found that Priebe was qualified to testify as an expert based on his experience. The question was whether this opinion was sufficiently reliable, given his experience and knowledge.
The Michigan Supreme Court stressed that it is within a trial court’s discretion to determine reliability. Based on its decision in Edry v. Adelman, the state high court held the circuit court did not abuse its discretion by concluding that Priebe’s testimony was deficient because it did not conform to MRE 702. In Edry, the court held that an expert failed to meet the requirements of MRE 702 because his opinion was not based on reliable principles, his opinion was contradicted by the defendant’s expert and published literature, and there was no literature supporting the plaintiff’s expert. As in Edry, Priebe’s opinion “was not based on reliable principles or methods,” his opinion was contradicted by the opinion of the defendant’s expert and published literature on the subject, and there was no literature supporting the testimony of the plaintiff’s expert. While peer-reviewed, published literature is not always necessary or sufficient to meet the requirements of MRE 702, the lack of supporting literature, combined with the lack of any other form of support, rendered Priebe’s opinion unreliable and therefore inadmissible under MRE 702.
The Michigan Supreme Court therefore concluded that the circuit court did not abuse its discretion in granting summary disposition for the defendants. As noted by the dissent in the appellate court opinion, the concern in relying on Priebe’s personal opinion was that Priebe may have held himself to a higher or different standard than that practiced by the medical community at large. This was particularly concerning given the contradictory medical literature. The state high court therefore reversed the judgment of the court of appeals and reinstated the May 2013 order of the Oakland Circuit Court.
Personal injury lawyer Kelly Neumann at the Neumann Law Group represents victims of medical malpractice throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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