Appeals Court Reverses Trial Court Found to Have Abused Its Discretion in Excluding the Testimony of a Plaintiff’s Expert Witness

Paulette Elher filed a medical malpractice lawsuit against Dr. Dwijen Misra Jr. M.D., seeking damages alleging that Dr. Misra accidentally clipped her common bile duct while performing a laparoscopic cholecystectomy. Elher wanted to have the court admit expert testimony where it would be stated that clipping a patient’s common bile duct during an otherwise uncomplicated laparoscopic cholecystectomy was a breach of the standard of care. She also claimed that negligence could be inferred from the improperly clipped bile duct under the doctrine of res ipsa loquitur.

The defendants in this case moved to exclude Elher’s proposed expert’s testimony on the ground that, because it was not supported by peer-reviewed literature or the opinions of other physicians, it did not meet the standards for reliability under the Rules of Evidence Section 702. Rule 702 is the rule of evidence regarding testimony by experts. The rule is in place to assist the jury or court in understanding scientific, technical or other specialized knowledge and to understand the evidence or to determine a fact in issue. A witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.

The court of appeals in Michigan held that the trial judge had abused its discretion by incorrectly applying Rule 702 to exclude the testimony of plaintiff’s expert witness because the factors that the trial court considered were not relevant to the expert’s testimony, which did not involve an unsound scientific methodology or questionable data. Rather, the majority concluded that injuring the common bile duct violated the applicable standard of care called for a value judgment derived from training and experience. The majority agreed, however, with the trial court that the doctrine of res ipsa loquitur did not apply to plaintiff’s claim. The dissent agreed with the majority’s analysis of the res ipsa loquitur issue but concluded that the trial court did not abuse its discretion by excluding the testimony of plaintiff’s expert regarding the standard of care because no basis had been offered for the testimony apart from the expert’s own personal views. The defendants sought leave to appeal to the Michigan Supreme Court.

Without granting leave to appeal and without hearing oral argument, the Michigan Supreme Court held that the proponent of expert testimony in a medical malpractice case must satisfy the court that the expert is qualified under Michigan’s evidentiary laws. The court found that the opinion of a plaintiff’s expert was not based on reliable principles or methods, his opinion was contradicted by the opinions of defendant’s experts and published literature on the subject that was admitted into evidence. Also, the court found that there was no literature supporting the testimony of plaintiff’s expert admitted into evidence. While peer-reviewed, published literature is not always necessary or sufficient to meet the requirements of Federal Rules of Evidence 702 or Michigan’s version of the same, the lack of supporting literature, combined with the lack of any other form of support, rendered the opinion of plaintiff’s expert unreliable and inadmissible under 702. The trial did not abuse its discretion by concluding that the experience and background of plaintiff’s expert were not sufficient to deem his opinion reliable under Section 702 given the absence of other evidence supporting his opinion.

Accordingly, the court of appeals reversed; the trial court order excluding the testimony of plaintiff’s expert and granting summary disposition in favor of the defendants was reinstated. There was a dissent filed by the Supreme Court that would have affirmed for the reasons stated in the court of appeals majority opinion.

Elher v. Misra, Michigan Supreme Court, Docket No. 150824 (Feb. 8, 2016).

Kreisman Law Offices has been handling medical malpractice cases, birth trauma injury cases and nursing home abuse cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Gurnee, Orland Park, Lincolnshire, Deerfield, Elmhurst, Naperville, Arlington Heights, Tinley Park, Mount Prospect, Long Grove, Chicago (Rogers Park, Wicker Park, Bucktown, South Loop, Lincoln Park, Lincoln Square, Chatham), Joliet, Elgin, Bolingbrook, Waukegan and St. Charles, Ill.

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