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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.

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For expert testimony to be considered reliable in a medical malpractice matter, the expert must have more than just experience and credentials as a basis for his opinion, according to the Michigan Supreme Court in <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/SCT/20160208_S150824_42_01_Elher-OP.pdf" target="_blank" rel="noopener"><em>Elher v. Misra</em></a>, No. 150824.&nbsp; In addition to qualifications, the expert must also have support establishing that the opinion had some basis in fact and that it was the result of reliable principles or methods. &nbsp;Here, the lack of peer review literature in the face of literature contradicting the expert, combined with lack of any other support, rendered the testimony inadmissible.&nbsp; The court emphasized, however, that peer review literature is not always necessary or sufficient to satisfy MRE 702.

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Paulette Elher, the plaintiff, underwent a laparoscopic gall bladder removal procedure that was performed by Dr. Dwijen Misra, Jr., the defendant, on August 18, 2008.&nbsp; During the surgery, the defendant inadvertently clipped the wrong duct, resulting in the plaintiff having to undergo emergency surgery to remove the clip and repair the duct so that bile could properly drain from her liver.&nbsp; The plaintiff filed suit in Oakland Circuit Court alleging that the defendant breached the applicable standard of care.&nbsp;

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The plaintiff’s sole standard-of-care expert was Dr. Paul Priebe, who is a board certified general surgeon.&nbsp; He testified that in his opinion, it is virtually always malpractice to injure the common bile duct during a laparoscopic gall bladder removal procedure, absent extensive inflammation or scarring.&nbsp; Though he considered the plaintiff’s injury to be a breach of the standard of care, Dr. Priebe did not provide any supporting authority for his opinion.

The defendants moved for summary judgment arguing that the plaintiff’s expert failed to meet the requirements of MRE 702 and MCL 600.2955 because his opinion was unreliable.&nbsp; MRE 702 requires the circuit court to ensure that each aspect of an expert witness’s testimony, including the underlying data and methodology, is reliable.&nbsp; MCL 600.2955 requires the court to determine whether the expert’s opinion is reliable and will assist the trier of fact by examining the opinion and its basis, including the facts, technique, methodology, and reasoning relied on by the expert.

The circuit court determined that the plaintiff failed to admit any evidence supporting her expert’s opinion regarding the standard of care, and subsequently found the opinion testimony of the expert inadmissible under MRE 702.&nbsp; The court also found that the testimony did not meet the requirements of MCL 600.2955.&nbsp; In a split decision, the Court of Appeals reversed and remanded the circuit court decision after concluding that the court incorrectly applied MRE 702 and abused its discretion by excluding the testimony.&nbsp;

The Michigan Supreme Court reversed the Court of Appeals, reasoning that the opinion of the expert’s testimony was not based on reliable principles and methods, was contradicted by the defendant’s expert’s opinion and published literature, and was not supported by any literature the plaintiff admitted into evidence.&nbsp; Given the absence of other evidence supporting the expert’s opinion, the trial court did not abuse its discretion in concluding that the experience and background of the plaintiff’s expert were insufficient to deem his opinion reliable under MRE 702 and MCL 600.2955.

To read our previous blog post about the Court of Appeals’ opinion, click <a href="https://www.wnj.com/updates/coa-vacates-recent-opinion-on-admissibility-of-expert-medical-testimony-and-reaches-the-same-conclusion-that-surgeon-was-qualified-to-testify-about-the-standard-of-care/" target="_blank" rel="noreferrer noopener">here</a>.

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Gaëtan Gerville-Réache

Labor and Employment

Credentials alone are generally insufficient to establish reliability of expert testimony, says MSC

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Credentials alone are generally insufficient to establish reliability of expert testimony, says MSC

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