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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20141125_C316478_31_316478.OPN.PDF" target="_blank" rel="noopener"><em>Elher v. Misra</em>, No. 316478</a>, the Court of Appeals held that the trial court should have admitted an expert to testify that a doctor breached the standard of care despite the expert’s inability to identify peer-reviewed literature or other physicians in the community who supported his conclusions.

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In this case, Dr. Misra performed gallbladder surgery on Paulette Elher and accidentally clipped the wrong bile duct during her procedure. Ms. Elher was forced to undergo another surgery to remove the clip and reconstruct her drainage system. She filed suit against Dr. Misra for medical malpractice and offered expert testimony from Dr. Paul Priebe, a board certified general surgeon, who asserted that Dr. Misra’s conduct fell below the standard of care. Dr. Priebe was unable to provide literature or proof of acceptance in the community to support his conclusions. Dr. Misra offered a defense expert who disputed Dr. Priebe’s opinion, relying on several well-known articles. The trial court excluded Dr. Priebe’s testimony on the basis that it was unreliable under Michigan’s rules of evidence.

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MRE 702 governs the admissibility of expert testimony and requires that an expert’s opinion is the product of reliable principles and methods. The rules further require courts to examine the expert’s opinion and its basis, including the facts, technique, methodology and reasoning relied on by the expert. Courts may rely on factors such as whether peer reviewed literature or general acceptance in the community exists to support an expert’s conclusions.

The Court of Appeals held that the trial court abused its discretion when Dr. Priebe’s testimony was excluded at trial. First, the Court concluded that the trial court’s reliance on the “peer review” prong was improper. The Court reasoned that there is no evidence a standard of care issue has been tested, analyzed, or studied in peer-reviewed articles for the surgery at issue in this case. The Court also ruled that the general acceptance theory used by courts is not dispositive in determining an expert’s reliability. The Court explained that Dr. Priebe’s reasoning was medically sound, which was sufficient. The Court also noted that the clashing conclusions between the experts in this case is exactly what a jury is designed to resolve. Therefore, the Court of Appeals affirmed in part the trial court’s conclusion that a res ipsa loquitur theory does not apply to this case and reversed in part the trial court’s holding to exclude the expert’s testimony and remanded for further proceedings.

Judge Hoekstra provided an opinion dissenting from the majority’s holding that the trial court abused its discretion. He reasoned that the expert could not put forth any basis for his asserted knowledge except for his personal views, which is not enough to surpass the reliability threshold.

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Jason L. Byrne

Labor and Employment

COA holds that expert testimony on the standard of care need not be supported by peer-reviewed literature or general acceptance in the community

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COA holds that expert testimony on the standard of care need not be supported by peer-reviewed literature or general acceptance in the community

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