Medical Malpractice Report

MDTC Medical Malpractice Practice Section

Barbara J. Kennedy and Vanessa F. McCamant,Aardema Whitelaw, PLLC

bkennedy@aardemawhitelaw.com, vmccamant@aardemawhitelaw.com

Medical-Malpractice Report

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Expert Qualification Dependent Upon Specific Experience

Walworth v Markiewicz, unpublished opinion per curium of the Court of Appeals, issued July 28, 2016 (Docket No. 327795); 2016 WL 4071174.

Facts: In Walworth, the plaintiff underwent a specialized otorhinolaryngologic procedure known as a canaloplasty. The canaloplasty was intended to address bony growths from the temporal bone, which were protruding into the plaintiff's ear canal. The ENT surgeon used a device called a Skeeter drill to remove the bony growths. After the surgery, the plaintiff developed total and permanent hearing loss in his operative ear. He sued the surgeon alleging that he hit the plaintiff's eardrum with the Skeeter drill, causing his hearing loss. The defendant denied liability and specifically denied that he hit the plaintiff's eardrum with the Skeeter drill during the canaloplasty procedure. Defendant also asserted that hearing loss was a known risk of the canaloplasty, as well as any other ENT surgery.

The plaintiff's complaint was accompanied by an affidavit of merit signed by a board-certified otolaryngologist. His credentials matched that of the defendant physician in that the plaintiff's expert practiced in the same specialty and had the same board certification as the defendant physician.

When the plaintiff's expert was deposed, he testified that he had never performed the canaloplasty procedure, had never used a Skeeter drill, and had last observed one of a total of six canaloplasty procedures he had ever observed during his residency training 27 years before the deposition (many years before the treatment at issue). The plaintiff's expert further testified that, if a patient in his practice needed a canaloplasty, he would refer that patient to another provider because he lacked the experience and training to perform the surgery. Likewise, he did not perform any surgical procedures involving the temporal bone, the source of the bony growths within plaintiff's right ear canal.

Five months after the plaintiff's expert's deposition and a couple of months before trial, the defendants brought a motion for summary deposition under MCR 2.116(C)(10) on the basis that there was no genuine issue of material fact that the expert was unqualified to offer opinion testimony under MCL 600.2169(2), (3)[1] and MRE 702.[2] The defendants relied upon the expert's own testimony that he lacked the requisite experience and training to offer a reliable opinion pertaining to the standard of care of the defendant in carrying out the canaloplasty procedure.

The plaintiff contested the motion on three bases: (1) the expert was qualified based on his own testimony as well as matching specialties and board certifications; (2) the plaintiff did not require an outside expert since the defendant had "admitted" that he breached the standard of care in his own deposition; and (3) at the hearing, the plaintiff argued that the court should allow him the opportunity to substitute expert witnesses.

The trial court quickly rejected the plaintiff's claims that the defendant admitted negligence since the plaintiff relied upon a singular statement in the defendant's deposition in which he "admitted" knowledge of the standard of care. The trial court found that while the defendant admitted familiarity with what the standard of care required, he emphatically denied breaching the standard of care, and explained that singular answer, in detail, in other portions of the deposition. The trial court also rejected the plaintiff's request for an opportunity to add another expert since the plaintiff's counsel knew, or should have known, of the problems he had with the retained expert for several months and the trial date was imminent.

The trial court relied upon MCL 600.2169(2)-(3) and MRE 702 in granting the defendant's motion to strike the expert. The judge found that the plaintiff's expert lacked the requisite qualifications to offer an opinion at trial based on the fact that he had never done the surgical procedure at issue and had merely observed a half a dozen or so of the procedures almost 30 years prior. In addition, the witness had never researched, wrote about, or presented any information to his peers regarding canaloplasty. He had never used the Skeeter drill utilized by the defendant. The trial court found that the expert's lack of experience was so significant that he could not allow the expert to offer opinions, finding that a jury should not be allowed to decide the weight of the unsubstantiated testimony. In light of the plaintiff's inability to carry the burden of proof without an expert to testify on standard of care, the trial court dismissed the case.

The plaintiff filed a claim of appeal, asserting that the trial court abused its discretion in striking the plaintiff's sole expert witness and dismissing the case.

Ruling: The Michigan Court of Appeals, in an unpublished per curium opinion, found that the trial court had not abused its discretion in vetting the qualification of the plaintiff's expert as well as the admissibility of his opinions. Absent an abuse of discretion, the Court of Appeals deferred to the trial court, finding that the outcome was reasonable and principled.

The Court of Appeals also rejected the plaintiff's argument that he could call the defendant physician as an expert against himself based on their own detailed review of the defendant physician's deposition testimony. Finally, the Court of Appeals agreed with the trial court's conclusion that the plaintiff knew or should have known from the time the deposition testimony was elicited from his own expert, that the expert's qualifications were questionable. Based on a lack of diligence in seeking new expertise at that time, the Court of Appeals felt that the trial court's decision to deny plaintiff the opportunity to substitute experts was also a reasonable and principled outcome.

The plaintiff relied heavily upon MCL 600.2169(1)[3] to support the position that the expert was qualified to offer opinions about the standard of care. Neither the defendants, the trial court, nor the Court of Appeals had offered any justification under section 2169(1) to strike the expert. Consequently, those arguments were ineffective. The Court of Appeals pointed out that in its appellate submissions, the plaintiff had failed to address the provisions of sections 2169(2) and (3) whatsoever. In failing to address the applicability of those statutory provisions, the plaintiff had abandoned any claim of error with reference to the rulings that relied upon those provisions.[4]

The Court of Appeals clarified that the analysis regarding experts and the opinions that they may offer does not end with matching specialties. The plaintiff relied only on section 2169(1) and MRE 702, arguing that the qualifications of their expert made his opinions essentially ipso facto sufficiently reliable. The plaintiff contended that the expert's familiarity with ear anatomy and his professed knowledge of the standard of care pertaining to canaloplasty rendered him qualified and his opinions reliable. The Court of Appeals held that the expert's self-professing of expertise without foundation was insufficient to find his opinions reliable. The mere appearance of expertise based on matching backgrounds was not enough to make the expert's opinion reliable.

The plaintiff also attempted to argue that the trial court's decision contradicted the case of Albro v Drayer.[5] In Albro, three defense experts were found to be qualified to testify regarding a specialized ankle reconstruction procedure even though none of them performed that specific procedure. The Court of Appeals in Walworth found that the plaintiff's reliance on Albro was misplaced. In Albro, the expert orthopedic surgeons offered by the defense all regularly did ankle reconstructions, all were familiar with the specific procedure at issue, and all had discussed the procedure in publications that they had authored or co-authored. The experts in Albro had demonstrated their knowledge of the procedure and had performed similar procedures numerous times. In Albro, the issue was whether the experts were qualified to discuss a specific type of ankle reconstruction even though the experts performed their own ankle reconstructions in a different way than the defendant physician.

The Walworth court further distinguished Albro, stating that the plaintiff's expert ENT had never performed a canaloplasty procedure and had never even operated on a temporal bone. In addition, he had never used the drill at issue and admittedly lacked the training and experience to perform a canaloplasty. Finally, he had never published or spoken on the canaloplasty procedure, demonstrating a significantly greater lack of expertise than that purported to be present in the Albro case.

In Walworth, the Court of Appeals found that the trial court made the correct decision based on analyzing the expert's qualifications and the reliability of his opinions under MCL 600.2955[6] (in addition to sections 2169(2), (3) and MRE 702). They agreed that the proposed expert lacked sufficient knowledge, skill, experience, training and education regarding the specific procedure to render a reliable opinion on standard of care. Under MCL 600.2955, an expert opinion is not admissible unless the court determines that it is reliable. The determination of reliability is based upon the opinion itself and the basis for the opinion. The statute provides a non-exhaustive list of factors the court may consider in determining whether an opinion is reliable.

Section 2955(3) specifically provides that in a malpractice action, its provisions are in addition to, and not independent of, the criteria for experts and expert testimony set forth in MCL 600.2169. The Court of Appeals called section 2955 the "codification of Daubert,"[7] emphasizing that the Court must apply Daubert standards in analyzing the reliability of scientific expert opinions offered in Michigan courts. The Court of Appeals also relied upon the case of Greathouse v Rhodes[8] for the proposition that statutory sections 600.2955 and 600.2169 work in harmony for purposes of determining the admissibility of expert opinions.

When looking at MCL 600.2169(2), the Court of Appeals determined that the trial court had properly evaluated the qualifications of an expert according to the factors set forth in subsections 2(a)–(d). Specifically, the trial court properly evaluated the expert's education, training, specialization, experience and the relevancy of his opinions. In Walworth, the expert lacked education, training, and experience with reference to the canaloplasty procedure. He had never performed the surgery, observed a handful of the procedures about 30 years prior, and admittedly was not trained to perform the surgery. The Court also pointed out that the trial court was not limited by the provisions of section 2169(2), since section 2169(3) provides that the trial court has the power to disqualify an expert on grounds other than the specific factors listed in the statute.

Relying upon MRE 702, the Court of Appeals again expressed the opinion that this Rule of Evidence requires that the trial court determine that proffered expert testimony will assist the trier of fact and that the witness offering the opinion is qualified by "knowledge, skill, experience, training or education." MRE 702 also directs that an expert's opinions must be based on sufficient facts or data, be the product of reliable principles and methods, and demonstrate reliable application of the principles and methods to the facts of the particular case.

In the Court of Appeals' view, the overriding Daubert issue central to the outcome in Walworth, was the foundation from which the expert could rationally render opinion testimony. The trial court was responsible to ensure that the expert testimony was relevant and also rested on a reliable foundation. The qualifications under MRE 702 to render a reliable opinion are knowledge, skill, experience, training and education. The plaintiff's proffered expert lacked the requisite skill and training in the surgical procedure at issue to offer an opinion.

Without the foundation for reliability, the Court of Appeals stated that expert's opinions are merely speculation or the particular beliefs of the expert:

It is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate. * * * [T]he word 'knowledge' connotes more than subjective belief or unsupported speculation. * * * The standard of care represents 'generally accepted standards,' within the 'relevant expert community,' * * * and not the personal opinion of the particular expert. [citations omitted]

In Walworth, the Court of Appeals found that the plaintiff failed to satisfy the burden of showing the expert had adequate foundation for his professed knowledge regarding the standard of care for performance of a canaloplasty procedure. The trial court's finding that this expert was not qualified to offer reliable expert opinion testimony on standard of care was within the range of reasonable and principled outcomes.

With reference to the trial court's dismissal of the complaint based on striking the plaintiff's only standard of care expert, the Court of Appeals commented that since the plaintiff could not meet the burden of proof in the case without the expert testimony, dismissal of the complaint was appropriate. They rejected the plaintiff's suggestion that he could call the defendant physician as an expert against himself, since the defendant's deposition testimony did not support such a conclusion. The Court of Appeals commented that the plaintiff took one singular response by the defendant in isolation in an attempt to establish he had "admitted" liability.

The Court further commented on the plaintiff's attempt to justify "cherry picking" one statement from the defendant's deposition, which justification was based on the standard for ruling on motions brought under MCR 2.116(C)(10). Plaintiff argued that the Court must view all facts in the light most favorable to the non-moving party, including that singular statement by the defendant physician. The Court of Appeals commented that the defendant had fully explained and even modified his answer to that singular question and that his deposition testimony must be viewed as a whole. Finally, the plaintiff had relied upon pre-1993 tort reform cases or other inapplicable authority in arguing that he should be allowed to use the defendant physician as an expert.

The Court of Appeals also supported the trial court's decision to deny the plaintiff the opportunity to substitute experts citing the length of time that elapsed (five months) between the deposition and the filing of defendant's motion. The Court further observed that the plaintiff only made an oral motion at the time of hearing, one month after the dispositive motion was filed, to substitute experts. The Court of Appeals agreed with the trial court that the plaintiff had failed to demonstrate diligence in identifying a different expert.

Practice Note: Although Walworth is unpublished, it is still very persuasive, particularly in cases involving highly specialized procedures. It is also significant in demonstrating that it is possible to successfully challenge the qualifications of an expert witness beyond the issue of matching specialties and board certifications. The Court of Appeals' analysis under MCL §§600.2169(2),(3) and 2955, as well as MRE 702 was noteworthy, particularly when an expert lacks specific training and experience relevant to the procedure or treatment at issue.

Walworth also establishes that an expert cannot merely profess to have knowledge of the applicable standard of care without any foundation based upon the expert's training, education and experience. The Court of Appeals also determined that it was appropriate to challenge an expert's qualification shortly before trial[9] and that dismissal is an appropriate remedy when a plaintiff's only standard of care expert is unqualified. It was beneficial to the defendants' position that many months had elapsed since the time that it should have been apparent to the plaintiff that the expert lacked specific, relevant expertise.

Walworth is in some respects a "wake up call" with reference to analyzing the qualifications of expert witnesses. This is the first significant appellate opinion since Albro to address a particular procedure and whether an expert is qualified to discuss it based on his own experience and training. Counsel on both sides of a case should carefully vet the specific expertise of any potential expert; any potential problems with distinctive, relevant expertise should be addressed as soon as they become apparent.



[1] MCL 600.2169 (2), (3) provides:

(2) In determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following:

(a) The educational and professional training of the expert witness.

(b) The area of specialization of the expert witness.

(c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty.

(d) The relevancy of the expert witness's testimony.

(3) This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section.

[2] Michigan Rule of Evidence 702 provides:

Rule 702 Testimony by Experts

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

[3] MCL 600.2169(1) provides:

(1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:

(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.

(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:

(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.

(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.

(c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:

(i) Active clinical practice as a general practitioner.

(ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed.

[4] "The failure to brief these related bases for the trial court's decision results in abandonment of any claim of error with respect to these other grounds for the trial court's decision. See Mate v Wolverine Mut Ins Co, 233 Mich App 14, 16; 592 NW2d 379 (1998), citing Mitcham v Detroit, 355 Mich 182, 203, 94 NW2d 388 (1959)." The Court of Appeals statement regarding abandonment of arguments may be a significant impediment to success on further appeal should the plaintiff seek leave with the Michigan Supreme Court.

[5] Albro v Drayer, 303 Mich App 758, 762-763; 846 NW2d 70 (2014).

[6] MCL 600.2955 provides:

(1) In an action for the death of a person or for injury to a person or property, a scientific opinion rendered by an otherwise qualified expert is not admissible unless the court determines that the opinion is reliable and will assist the trier of fact. In making that determination, the court shall examine the opinion and the basis for the opinion, which basis includes the facts, technique, methodology, and reasoning relied on by the expert, and shall consider all of the following factors:

(a) Whether the opinion and its basis have been subjected to scientific testing and replication.

(b) Whether the opinion and its basis have been subjected to peer review publication.

(c) The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards.

(d) The known or potential error rate of the opinion and its basis.

(e) The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, "relevant expert community" means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.

(f) Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered.

(g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation.

(2) A novel methodology or form of scientific evidence may be admitted into evidence only if its proponent establishes that it has achieved general scientific acceptance among impartial and disinterested experts in the field.

(3) In an action alleging medical malpractice, the provisions of this section are in addition to, and do not otherwise affect, the criteria for expert testimony provided in section 2169.

[7] Daubert v Merrell Dow Pharmaceuticals Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).

[8] Greathouse v Rhodes, 242 Mich App 221, 238; 618 NW 2d 106 (2000), rev'd on other grounds, 465 Mich 885; 636 NW2d 138 (2001).

[9] And within the parameters set forth in the trial court's scheduling order.

Categories: Volume 7-2

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