Expert Witness Blog
Plaintiff sued her doctor after her common bile duct was clipped during surgery to remove her gall bladder. The Circuit Court excluded the testimony of her expert witness and the appeals court overturned the ruling. Now, the Supreme Court reversed the judgment of the appeals court and reinstated the opinion of the Circuit Court.
Facts: In this medical malpractice case (PAULETTE ELHER v. DWIJEN MISRA, JR., M.D, et al – Michigan Supreme Court – February 8th, 2016), the Plaintiff (Elher) underwent surgery for the removal of her gall bladder. During the surgery, the doctor (Misra) accidentally clipped the common bile duct which leads to the patients liver. Elher had to undergo emergency surgery to remove the clip. Elher sued the doctor in Oakland Circuit Court and hired Dr. Paul Priebe as a gastroenterology expert witness causation expert. The doctor filed a motion to exclude Priebe’s expert witness testimony. The court granted the motion and Elher appealed. A split appeals court overruled the Circuit Court, stating that the expert testimony should not be excluded. The case is now before the Michigan Supreme Court.
Discussion: During his deposition in the Circuit Court case, Priebe testified that it is always malpractice if the bile duct is injured during a gall bladder removal surgery. That said, he did not provide any supporting documents or authority for his opinion. Misra filed a motion for summary disposition stating that Priebe’s testimony was unreliable. The Circuit Court agreed, stating that the Plaintiff only pointed to Priebe’s experience and background to argue that his opinion was reliable. He did not show that his opinion was scientifically valid and subject to peer-reviewed publications. Thus, the court granted the motion to exclude and for summary disposition.
The Plaintiff subsequently appealed this decision and the Court of Appeals, in a split opinion, reversed the opinion of the Circuit Court. The majority stated that this case was a difference of opinion among qualified experts and the opinion was outside of the scope of scientific study. The Circuit Court relied on three guideposts for their opinion. The Court of Appeals addressed each in turn. First, they stated that there was no testing to support either side’s opinion. Second, they stated that there was no peer-reviewed literature to prove both side’s opinions. Third, they stated that since there was no widespread standard of care in the literature in cases like this, Priebe’s expert testimony should be admitted. The case went up to the Michigan Supreme court for a final ruling.
The court first rejected the Plaintiff’s notion that the breach of standard of care in this case is obvious to a layperson and that no expert witness testimony is required. In addition, the court stated that the circuit court did not abuse its discretion by relying on two factors. First, the appeals court erred when it stated that the issue was not studied in peer-reviewed articles. There was indeed a peer-reviewed article, written by Dr. Lawrence Way. Second, the court stated that the circuit court did not abuse its discretion by stating that there was a lack of evidence regarding the degree of which Priebe’s opinion was accepted widely. They stated that the lack of supporting literature to support Priebe’s opinion, added with no other form of support, they would have to conclude that his opinion was not reliable or admissible.
Held: the opinion of the appeals circuit court, admitting the opinion of Dr. Priebe, was overruled.