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

A New Twist on Daubert May Allow Novel Opinions

Figurski v Trinity Health-Michigan, unpublished opinion per curiam of the Court of Appeals, issued July 28, 2016 (Docket No. 318115); 2016 WL 4069459.

Facts: In Figurski, plaintiff newborn was diagnosed with a perinatal arterial ischemic stroke (PAIS) that plaintiff alleged was part of a global hypoxic ischemic brain injury resulting from mismanagement of labor and delivery. The latent or inactive phase of labor (contracting) lasted 29 hours, followed by two hours of active (pushing) labor. Labor was augmented with the drug Pitocin, which plaintiff claimed caused tachysystole from hyperstimulation of the uterus. Tachysystole occurs when too many contractions take place in a specific period of time, over a prolonged portion of the labor.

Plaintiff’s theory was that trauma to the fetus, including compression of the head from contracting, caused the PAIS and global hypoxic ischemic brain injury. Mother was diagnosed with chorioamnionitis (an infection of the placenta) and there was meconium (in utero bowel movement) discovered after the baby was born via C-section. Although the child was described as a healthy, 9 lb. 3 oz. boy, he began having seizures shortly after birth. A CT scan showed a stroke that was “hours to days” old.

Plaintiff alleged that a brain injury resulted from traumatic head compression or regional cerebral edema resulting from failure of the baby to descend down the birth canal, macrosomia (large baby), excessive contractions related to Pitocin with trauma augmented by the failure to descend, hypoxic ischemic injury resulting from uteroplacental insufficiency, and (umbilical) cord compression. Plaintiff also alleged that the obstetrician and labor-and-delivery personnel breached the standard of care in their use and management of Pitocin; by failing to respond to changes in the heart rate demonstrated on the fetal heart tracing; and by failing to timely perform a C-section.

Perinatology and neonatology physician Carolyn Crawford, M.D. signed an affidavit of merit on behalf of plaintiff. Dr. Crawford’s affidavit listed a number of risk factors for the injuries sustained by the child that she believed contributed to, or accounted for, the outcome. At deposition, Dr. Crawford testified that she believed head compression or other head trauma occurred during labor and caused the PAIS. She also testified that she believed the child suffered a global hypoxic ischemic injury that included the stroke. She opined that the global hypoxic ischemic injury also occurred secondary to the effects of mismanagement of Pitocin, tachysystole from uterine hyperstimulation, and resultant trauma to the fetal head.

Before trial, defendant brought two motions in limine. One was to preclude a claim for global hypoxic ischemic injury secondary to trauma, on the basis that, other than the PAIS, no other brain injury was diagnosed. Defendant also contended that there was no scientific basis to support Dr. Crawford’s opinion that hypoxic ischemic injuries result from head compression or trauma related to the use of Pitocin and the forces of labor. Defendant relied Craig v Oakwood Hospital since the Michigan Supreme Court rejected an almost identical theory of recovery in that case.

Defendant filed a separate motion in limine and/or for partial summary disposition to preclude a claim that intrapartum care caused the stroke. Analogous arguments were made in support of that motion. In addressing the PAIS specifically, defendant asserted that it was uncontested that the baby had such a stroke. Defendant requested that the court preclude plaintiff from offering opinions regarding the cause of the stroke, on the basis that there were no medically recognized causes of PAIS. Defendant further averred that Dr. Crawford did not offer a reliable scientific opinion to support her theories regarding its cause. Defendant contended even assuming arguendo that risk factors can equate to causation, Dr. Crawford’s statistics on risk factors and outcomes were unreliable and were contradicted in the published medical literature.

In response to defendant’s motions, plaintiff submitted another affidavit from Dr. Crawford and attached 51 exhibits consisting of published articles that allegedly supported Dr. Crawford’s opinions and theories on the issues in question. The trial court took both motions under advisement, but rather than render a detailed written opinion, the trial court ordered a Daubert hearing. Dr. Crawford testified at the Daubert hearing and discussed the articles attached to her second affidavit. Dr. Crawford dismissed literature presented by defendant on cross-examination as immaterial or “politically motivated” to protect physicians.

Following the Daubert hearing, the court again took the motions under advisement and ultimately rendered a written opinion. The trial court held that there was no reliable basis for Dr. Crawford’s opinions and that they did not pass muster under Daubert. The court found there was no support for plaintiff’s claims of perinatal malpractice and granted partial summary disposition as to those claims. The trial court excluded Dr. Crawford’s opinions on causation, including plaintiff’s theory that a global hypoxic ischemic injury occurred during labor.

Plaintiff sought leave to appeal with the Michigan Court of Appeals, asserting that the trial court abused its discretion in striking plaintiff’s expert witness and dismissing his theory of perinatal malpractice. The Court of Appeals issued an initial unpublished per curiam opinion on March 5, 2015, reversing the trial court. Therein, the Court of Appeals relied heavily upon its opinion in Elher v Misra.

Defendant sought leave to appeal to the Michigan Supreme Court. On April 1, 2016, the Michigan Supreme Court issued an order in lieu of granting leave to appeal. Therein, it vacated substantial portions of the Court of Appeals’ opinion and remanded the case back to the Court of Appeals for reconsideration in light of the Supreme Court’s reversal of Elher.

Sections IV.A, B & C of the Court of Appeals’ March 5, 2015 opinion were not vacated by the Michigan Supreme Court. Those sections of the original Court of Appeals’ opinion described the proceedings during the defense motions in limine, as well as the subsequent Daubert hearing. With reference to the motions in limine, the original Court of Appeals’ opinion explained plaintiff’s position that the child suffered one injury, which included a PAIS. The defense was described as positing that a fetus cannot suffer a stroke from “traumatic” uterine contractions or other forces of labor.

As to the Daubert hearing, the Court of Appeals illustrated Dr. Crawford’s testimony at length, and prominently cited the literature she produced. Notably, Dr. Crawford admitted there was no direct support in the literature for her causation theories. Rather, she relied on portions of information from various literary sources to parse together scientific support for her opinions. The Court of Appeals also described several interesting interactions between plaintiff’s counsel and the trial court judge.

The last section of the original Court of Appeals’ opinion preserved by the Michigan Supreme Court was its description of the trial court’s opinion after taking the issues raised at the Daubert hearing under advisement. Specifically, that a lengthy written opinion was issued which addressed the literature and potential scientific bases for Dr. Crawford’s opinion. The Court of Appeals remarked that the trial court rejected most of the opinions and the literature, but had failed to perform a detailed analysis under MCL 600.2955.

Ruling: On July 28, 2016, the Court of Appeals issued its second unpublished per curiam opinion in Figurski. In many respects, the Court of Appeals essentially reiterated its prior opinion of March 5, 2015, but without reliance upon the now-reversed Court of Appeals’ decision in Elher. The Court of Appeals also distinguished the Figurski and Elher cases, in upholding its prior decision that Dr. Crawford’s opinions and theories should not be excluded. Defendant filed an application for leave to appeal to the Michigan Supreme Court on September 7, 2016. That application is currently pending.

The Michigan Court of Appeals addressed the vacated portion of its prior opinion with reference to the standard of review applicable to a trial court’s decision on the admission or exclusion of expert testimony. It held that a dual standard of review applied.

With reference to whether the trial court properly performed its gatekeeping function, the applicable standard of review was held to be de novo under Gilbert. If the trial court properly performed the gatekeeping role, the Court of Appeals then applies an abuse of discretion standard to the trial court’s decisions to admit or exclude the evidence at issue. In its July 28, 2016 opinion, the Court of Appeals restated this dual standard, but in a much more concise fashion. It also relied on the Supreme Court’s decision in Elher for application of those standards.

With reference to the law applicable to expert testimony, the Court of Appeals framed the issue as a controversy surrounding the cause of the PAIS. Plaintiff attributed the stroke to trauma during labor. Defendant asserted that the stroke was unrelated to the labor, and that there was no reliable information pointing towards a specific cause of PAIS in newborns. With reference to the allegations that the child suffered a global hypoxic ischemic injury, plaintiff relied upon the opinion of Dr. Crawford. Defendant asserted there was never any diagnosis of global hypoxic ischemic injury.

The Court of Appeals provided a lengthy dissertation on the evolution of law surrounding the admissibility of expert opinions. This included discussion of MRE 702, the emergence of Daubert based on the prior standard annunciated in Davis-Frye, and the subsequent history of the Daubert case. The Court of Appeals extensively defined many terms, sometimes inappositely. The Court of Appeals also looked to the Kumho Tire case in which the United States Supreme Court applied Daubert standards to non-scientific expert testimony. The Court of Appeals accurately described the enactment of MCL 600.2955 as “in response to” the Daubert and Kumho opinions.

The Court of Appeals’ opinion discusses the import of MCL 600.2955 in vetting expert opinions, but the Court’s analysis is rather scant. The opinion doesn’t provide application of the elements of the statute to the facts of Figurski. The opinion continues the historical discussion of law relating to expert testimony by referencing Gilbert v. Daimler Chrysler at length. Notably, the Gilbert decision was primarily one that addressed qualifications of an expert to address issues and secondarily, the scientific bases for the expert’s opinions.

The Court of Appeals’ opinion also discusses the Craig case extensively, including Craig’s application of the old Davis-Frye standard. Even though the facts and proposed expert opinions in Craig were closely analogous to Figurski, the Court of Appeals’ opinion goes to great lengths to distinguish Craig in the context of subsequent developments in the law. (Notably, those developments have made the admission of novel scientific theories more restrictive, not less so.)

The Court of Appeals also relied upon its opinion in Chapin v A&L Parts, Inc., in which the plaintiff allegedly suffered from mesothelioma after working as an automotive-brake mechanic for 45 years. The Court of Appeals relied on Chapin for the proposition that the trial court cannot conduct its own “mini trial” of a case since a Daubert vetting of expert testimony is “not a search for absolute truth.” According to Chapin, the role of the trial court is to filter out unreliable testimony while keeping in mind the evolving nature of science.

Finally, the Court of Appeals discussed Edry v Adelman, in which an oncologist’s expert testimony was stricken on the basis that there was no published literature to support his opinions, or any general acceptance of his causation theories. The Court of Appeals pointed out that in Edry, there was neither literature nor general acceptance of the expert’s theories. But in Figurski, the Court of Appeals was impressed that Dr. Crawford produced numerous articles and offered extensive testimony regarding the alleged acceptance of her theories in the scientific community.

The Court of Appeals concluded that the trial court judge had far exceeded her role as gatekeeper and rather than decide issues related to expert opinions, decided the issue of proximate causation itself. The Court of Appeals was critical that the judge looked primarily at the conclusions of plaintiff’s expert, and not the way in which those conclusions were reached. The Court of Appeals also cited other analogous expert testimony from other (unpublished) Court of Appeals’ opinions in which it endorsed the theory that head compression can cause fetal injury.

The Court of Appeals’ opinion describes its consideration of the Michigan Supreme Court’s pronouncement in Elher. Even in light of Elher, the Court of Appeals still concluded that the trial court erred in granting defendant’s motion in limine to exclude plaintiff’s causation expert and dismissing the claims of perinatal malpractice.

The Court of Appeals distinguished the facts of Elher from the case before it in several respects. For instance, the Elher opinion dealt with an expert being offered on the issue of standard of care whereas, in Figurski, the expert was offered on the issue of proximate causation. In Elher, the plaintiff’s expert offered his personal definition of the standard of care, a fact not present in the Figurski case. In Elher, the plaintiff’s expert offered no literature whatsoever to support his opinions, whereas Dr. Crawford produced massive amounts of literature that she testified formed the basis for her opinions. In Elher, there was significant literature that contradicted the opinion of the plaintiff’s expert. In the Figurski case, some literature was produced by the defense that contradicted Dr. Crawford’s opinions or at least shed doubt upon them. The Court of Appeals commented that the defendants produced nothing directly or specifically contrary to Dr. Crawford’s opinions. Also, in Elher, the defense produced expert testimony that contradicted the opinions of the plaintiff’s proposed expert, whereas, in Figurski, no defense expert was produced at the time of the Daubert hearing.

Based upon these distinctions from the Elher case, and after eliminating any reliance on the Court of Appeals decision in Elher, the conclusion was that Dr. Crawford’s testimony should be admitted and plaintiff could pursue recovery based upon a theory of perinatal malpractice. Although the July 28, 2016 opinion is unpublished and therefore not precedential, it may prove in certain venues to be persuasive with reference to the admission of novel theories of causation or even liability.

Summary: Pending any further action by the Michigan Supreme Court, Figurski is a case in which a plaintiff can pursue a novel theory of causation. Careful review of the original Figurski Court of Appeals’ opinion of March 5, 2015 makes it clear that, while Dr. Crawford believes in her theory of causation, she struggled to explain how the literature directly supports it. Dr. Crawford herself admitted that none of the literature she produced expressly supports her theory, but that piecing together portions of the literature created peer-reviewed support for her opinion.

The Michigan Supreme Court must first decide whether to grant or deny leave to appeal. If leave is granted, the Supreme Court’s substantive decision in Figurski will be important. Should the Court of Appeal’s decision be affirmed, this means our Supreme Court endorses piecing together literature to bolster the essence that opinions pass the “peer reviewed” test. If the basis for an expert opinion passes “peer reviewed” muster in this fashion, a plaintiff can argue that the opinion has general acceptance within the relevant expert community. Almost any novel theory of liability or causation could be “supported” by piecing together enough portions of published literature. That outcome would be dire in light of the fact that it would seem to contradict the long history of case law pertaining to expert testimony, the intent of MRE 702, and more importantly, the history and progeny of MCL 600.2955.

Figurski indirectly provides some practical tips that may be useful in analyzing expert testimony offered on behalf of a plaintiff or to be offered on behalf of a defendant: Recognize what issue or issues the expert is actually qualified to discuss (standard of care, proximate cause, or both). Attempt to obtain any literature that forms the basis of a plaintiff expert’s opinion before the expert’s discovery deposition. Ask the expert to cite to any literature that supports their opinion during the deposition regardless of whether the expert considers the literature to be authoritative, generally reliable, or neither. If an expert testifies that he or she is unaware of the existence of any peer-reviewed literature that supports the offered opinions, this may be helpful in a future attempt to exclude the expert’s opinions. Pursue this testimony with some follow-up questions to further establish the lack of literature and/or general acceptance in the relevant expert community.

It is advisable to discuss at length with your own expert any literature identified by the other side. It is important to become very familiar with the literature upon which a plaintiff will allegedly rely, and ask your expert (and your client) to provide literature that supports the defense position on standard of care and proximate causation. If the trial court conducts a Daubert hearing, thoroughly argue the weaknesses of the opponent’s literature. In Figurski, it was clear that the defendant made the trial judge aware that none of the literature produced by Dr. Crawford directly supported her opinions. This forced Dr. Crawford to explain that the literature had to be “pieced together” to support her opinions; a fact that must be addressed in the setting of a Daubert hearing.

Depending upon the circumstances, it may be beneficial to produce defense experts to respond to expert opinions offered by a plaintiff at the hearing. Make sure any defense experts not only address the literature that supports the defense position, but literature produced by a plaintiff that contradicts his or her own theories. In addition to arguing the point, have your expert testify that piecing together (or cherry picking) literature from several sources is not how scientific theories gain general acceptance in the relevant expert community. Last, but not least, recognize that your opponent may be purposefully attempting to create bias on the part of the trial judge in order to claim bias at an appellate level. Attempt to diffuse any bias that an impatient or frustrated trial judge may be demonstrating so as to prevent issues unrelated to the substance of the expert testimony from gaining any significance.

Categories: Volume 7-3

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