In this medical malpractice case, the plaintiff appeals an opinion of the trial court excluding the opinion on oncology expert witness. The appeals court affirmed the lower court opinion.
Facts: This case (ESTATE OF PEYTON v. NOVI INTERNAL MEDICINE AND PEDIATRICS, PLLC – Court of Appeals of Michigan – April 13th, 2017) in an appeal from a trial court opinion granting summary disposition in favor of the defendants. The litigation involves an action for wrongful death based on medical malpractice. The decedent, Donny Payton, went for a check-up at Novi Internal Medicine and Pediatrics in the fall of 2010 complaining of back and joint pain. Mr. Payton had a history of cigarette smoking. Dr. Louis Schwartz diagnosed Mr. Payton with chronic obstructive pulmonary disease (COPD) and osteoarthritis and ordered an x-ray. The plaintiff alleges that Dr. Kristin Kamienecki, a radiologist, failed to identify an abnormal density in the right lung that was suspicious for lung cancer. After returning to the hospital in December 2011, Mr. Payton was diagnosed with metastatic non-small cell lung cancer and subsequently died in June 2012. After filing suit, the plaintiff hired Dr. Barry Singer (oncology expert witness) to provide expert witness testimony.
The trial court denied the admissibility of Dr. Singer’s testimony and granted summary disposition in favor of the defendant. The plaintiff appealed the opinion.
Discussion: The plaintiff disputes the threshold issue on the admissibility of Dr. Singer’s testimony. The major issue is whether Dr. Singer’s method of extrapolating pathologic staged cancer survival rates in the absence of pathologic information necessary for this form of cancer staging met the requirements of admissibility under the rules of evidence. During his testimony, Dr. Singer stated that pathologic staging could not be performed if the decedent’s tumor were not surgically removed. Despite lack of data, Dr. Singer opined that the decedent’s cancer was at pathologic stage I or II in September of 2010 and that the aggressive growth of the tumor led to his death in 2012. He then concluded that, based on survival rates associated with pathological staging, the decedent would have had a 50% survival rate had he been correctly diagnosed in September 2010.
The lower court concluded that the plaintiff was unable to show that Dr. Singer’s opinion was based on reliable scientific methods and principles. The plaintiff did not provide any evidence that Dr. Singer’s methods was accepted in the scientific community for cancer staging. The court mentioned that Dr. Singer seemed to have created his own methodology for the purposes of litigation. The court noted that Dr. Singer’s methodology is at issue here, not the cites survival rate studies.
Also, the plaintiff tries to validate Dr. Singer’s testimony by stating that he relied on what was known about the facts in the case, citing Daubert. The current court disagreed, by stating that this argument is misplaced. Daubert states that expert opinion should be based on appropriate validation of methodology, of which Dr. Singer’s testimony was not.
Conclusion: The appeals court affirmed the decision of the trial court, excluding the expert testimony of Dr. Singer.