Michigan Supreme Court Addresses Reliability of Expert Opinion on Standard of Care
In a recent ruling, the Michigan Supreme Court has reaffirmed the state’s stringent requirements for reliable expert witness testimony on the standard of care in medical malpractice cases, overruling a published opinion by the Michigan Court of Appeals that relaxed those requirements.
The Supreme Court’s opinion in Elher v Misra, MD, Docket No. 150824 (Feb. 8, 2016), issued in lieu of granting leave to appeal, confirms the standards set by MRE 702 and MCL 600.2955 for expert testimony in medical malpractice cases and upholds the trial court’s discretion in applying those standards. Rob Kamenec and Karen Beach of Plunkett Cooney’s Appellate Practice Group authored the successful application for leave to appeal.
The trial court in Elher found the plaintiff’s proposed standard of care expert unqualified to testify under the reliability standards set forth in MRE 702 and MCL 600.2955, more commonly known as the “Daubert” criteria. The proposed expert, Dr. Priebe, opined that clipping a patient’s common bile duct during an otherwise uncomplicated laparoscopic cholecystectomy (gallbladder removal) was a breach of the standard of care.
The trial court excluded the testimony under MRE 702 and MCL 600.2955 as unreliable because the opinion was not supported by peer-reviewed literature or the opinions of other physicians.
The appellate court, in a published majority opinion, held that the trial court had abused its discretion by incorrectly applying MRE 702 to exclude Dr. Priebe’s testimony because the standard of care opinion at issue involved a value judgment derived from his training and experience. A dissenting opinion found that Dr. Priebe’s testimony had been properly excluded because no basis was offered for the testimony apart from Dr. Priebe’s own personal views.
In a 5-1 per curiam opinion (Justice Larsen did not participate and Justice Bernstein dissented), the Supreme Court held the trial court did not abuse its discretion in applying the reliability factors of MRE 702 and MCL 600.2955 to exclude Dr. Priebe’s standard of care testimony. Specifically, the trial court properly applied § 2955(1)(b) to find that Dr. Priebe’s opinion and its basis were not supported by peer-reviewed publications because the surgical error at issue had been studied in medical literature. The plaintiff submitted no literature in support of Dr. Priebe’s opinion, and the defense submitted a peer-reviewed article finding that 97 percent of those errors were due to misperception, which did not constitute negligence.
Also, the trial court properly applied §2955(1)(e) to find that Dr. Priebe’s opinion was not generally accepted by the scientific community, as Dr. Priebe admitted that he knew of no one that shared his opinion. However, the Supreme Court agreed with the appellate court majority that the trial court had improperly applied § 2955(1)(a) because this “scientific testing and replication factor” does not fit the type of opinion offered by Dr. Priebe.
With respect to MRE 702, the Supreme Court found its prior opinion in Edry v Adelman, 486 Mich 634; 786 NW2d 567 (2010), to be instructive. As in Edry, Dr. Priebe’s opinion was not based on reliable principles or methods, and it was contradicted by the opinion of the defendant’s expert and published literature on the subject, as well as there was no other support provided for Dr. Priebe’s opinion. The doctor’s background and experience, standing alone, were insufficient to meet the reliability requirements of MRE 702 and MCL 600.2955.
The Supreme Court rejected the notion that these reliability factors do not apply to standard of care opinions which might be characterized as “a difference of opinion among highly qualified experts” or “outside the realm of scientific methodology.” Instead, the Supreme Court affirmed that “it is within a trial court’s discretion how to determine reliability,” namely by deciding which factors of MRE 702 and MCL 600.2955 are relevant to the type of opinion being offered.