By Ben Solis
Gongwer News Service
Scientific literature is not always required to support an expert witness’ standard of care opinion in malpractice lawsuits, but scientific literature is one of the factors that a trial court should consider when determining if the opinion relayed is reliable, a split Supreme Court ruled Monday.
In an 5-2 decision, with an opinion written by Justice Kyra Harris Bolden, the court’s majority reversed the opinion of the Court of Appeals, which upheld the Oakland Circuit Court’s grant of summary disposition to the defendant in Danhoff v. Fahim (MSC Docket No. 163120).
Justice Richard Bernstein wrote a concurring opinion, and Justice Brian Zahra, joined by Justice David Viviano, dissented.
The case arose from a malpractice lawsuit against the defendant where an expert witness had testified in favor of the plaintiff. The defendant moved for summary disposition by arguing that the plaintiff’s expert failed to establish the standard of care causation at the root of the case.
An Oakland judge found the affidavit of merit submitted by the expert was not sufficiently reliable to admit his testimony because the expert failed to cite published medical literature or any other authority to support his opinion that the defendants breached the standard of care.
The plaintiff moved for reconsideration and submitted another affidavit from the same expert, but the judge denied the motion, concluding that the opinion was still not supported by reliable principles or methods. Upon appeal, the Court of Appeals in an unpublished opinion affirmed the lower court.
But Bolden – joined by Chief Justice Elizabeth Clement, Justice Megan Cavanagh, Justice Elizabeth Welch and Bernstein – ruled otherwise.
“As we have said before, ‘peer-reviewed, published literature is not always a necessary or sufficient method of meeting the requirements of MRE 702,’ thus establishing reliability. This means that each case will present unique circumstances for a trial court to determine whether the expert’s opinion is reliable. In some cases, a lack of supportive literature may be fatal to a plaintiff’s expert’s reliability,” Bolden wrote. “In others, a plaintiff’s expert may demonstrate reliability without supportive literature, especially where a complication is rare and there is a dearth of supportive literature available to support the opinion.”
Consistent with Elher and Edry, Bolden wrote that the guidepost for admissibility is “reliability, and trial courts must consider MRE 702 as well as the statutory reliability factors presented in MCL 600.2955 when determining if an expert is reliable.”
“Determining that the expert is unreliable and granting summary disposition without first considering all such applicable factors, as the trial court did here, is an abuse of discretion,” she added.
Bernstein wrote separately to note that he questioned whether Edry and Elher were correctly decided but remained open to revisiting those decisions in future cases.
Zahra wrote that he disagreed with the majority that the trial court improperly applied rules of evidence.
“The majority opinion erroneously holds that the trial court abused its discretion when, in fact, the trial court perfectly applied the law to the facts and reached a sound and correct result,” Zahra wrote.
“Because the majority opinion reverses and disparages the trial court’s sound exercise of discretion, I dissent.”
Gongwer News Service
Scientific literature is not always required to support an expert witness’ standard of care opinion in malpractice lawsuits, but scientific literature is one of the factors that a trial court should consider when determining if the opinion relayed is reliable, a split Supreme Court ruled Monday.
In an 5-2 decision, with an opinion written by Justice Kyra Harris Bolden, the court’s majority reversed the opinion of the Court of Appeals, which upheld the Oakland Circuit Court’s grant of summary disposition to the defendant in Danhoff v. Fahim (MSC Docket No. 163120).
Justice Richard Bernstein wrote a concurring opinion, and Justice Brian Zahra, joined by Justice David Viviano, dissented.
The case arose from a malpractice lawsuit against the defendant where an expert witness had testified in favor of the plaintiff. The defendant moved for summary disposition by arguing that the plaintiff’s expert failed to establish the standard of care causation at the root of the case.
An Oakland judge found the affidavit of merit submitted by the expert was not sufficiently reliable to admit his testimony because the expert failed to cite published medical literature or any other authority to support his opinion that the defendants breached the standard of care.
The plaintiff moved for reconsideration and submitted another affidavit from the same expert, but the judge denied the motion, concluding that the opinion was still not supported by reliable principles or methods. Upon appeal, the Court of Appeals in an unpublished opinion affirmed the lower court.
But Bolden – joined by Chief Justice Elizabeth Clement, Justice Megan Cavanagh, Justice Elizabeth Welch and Bernstein – ruled otherwise.
“As we have said before, ‘peer-reviewed, published literature is not always a necessary or sufficient method of meeting the requirements of MRE 702,’ thus establishing reliability. This means that each case will present unique circumstances for a trial court to determine whether the expert’s opinion is reliable. In some cases, a lack of supportive literature may be fatal to a plaintiff’s expert’s reliability,” Bolden wrote. “In others, a plaintiff’s expert may demonstrate reliability without supportive literature, especially where a complication is rare and there is a dearth of supportive literature available to support the opinion.”
Consistent with Elher and Edry, Bolden wrote that the guidepost for admissibility is “reliability, and trial courts must consider MRE 702 as well as the statutory reliability factors presented in MCL 600.2955 when determining if an expert is reliable.”
“Determining that the expert is unreliable and granting summary disposition without first considering all such applicable factors, as the trial court did here, is an abuse of discretion,” she added.
Bernstein wrote separately to note that he questioned whether Edry and Elher were correctly decided but remained open to revisiting those decisions in future cases.
Zahra wrote that he disagreed with the majority that the trial court improperly applied rules of evidence.
“The majority opinion erroneously holds that the trial court abused its discretion when, in fact, the trial court perfectly applied the law to the facts and reached a sound and correct result,” Zahra wrote.
“Because the majority opinion reverses and disparages the trial court’s sound exercise of discretion, I dissent.”
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