If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ALEXANDRIA MARAE SCOTT,

Plaintiff-Appellant,

UNPUBLISHED

March 16, 2023

v No. 361066

Huron Circuit Court

SCHEURER HOSPITAL and JASON TERRANCE 

WELLS, MD,

LC No. 19-105661-NH

Defendants-Appellees.

Before: MURRAY, P.J., and RIORDAN and YATES, JJ.

PER CURIAM.

This medical-malpractice case arises from a laparoscopic cholecystectomy that defendant, 

Jason Terrance Wells, M.D., performed at defendant, Scheurer Hospital, on plaintiff, Alexandria 

Marae Scott. The trial court held an extensive evidentiary hearing to address defendants’ challenge 

to plaintiff’s expert witness, Dr. Francis Lee, under Daubert v Merrell Dow Pharm, Inc, 509 US 

579; 113 S Ct 2786; 125 L Ed 2d 469 (1993), and its progeny. At the end of that hearing, the trial 

court concluded that “there is no doubt regarding Dr. Lee’s qualifications” and “no question” about 

“his education, his background, [and] his experience,” but his expert opinions were insufficiently 

reliable to be presented to the jury. See Elher v Misra, 499 Mich 11, 27-28; 878 NW2d 790 (2016). 

Thus, the trial court not only excluded expert testimony from Dr. Lee, but also awarded defendants

summary disposition under MCR 2.116(C)(10) because, without testimony from Dr. Lee, plaintiff 

could not prove her case. We affirm in part, reverse in part, and remand for further proceedings.

 I. FACTUAL BACKGROUND

On June 7, 2017, plaintiff went to Scheurer Hospital suffering from nausea and abdominal 

pain. Plaintiff was diagnosed with acute cholelithiasis (meaning formation of gall stones) and then 

she was admitted to the hospital for a laparoscopic cholecystectomy (meaning surgical gallbladder 

removal), which Dr. Wells performed on June 8, 2017. After the operation, plaintiff still suffered 

from pain, which turned out to be the result of a biliary obstruction (meaning a blockage of tubes

that carry bile from the liver to the gallbladder and small intestine). As a result, on June 26, 2017, 

plaintiff underwent a laparotomy (meaning a surgical incision into the abdominal cavity) to locate 
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and treat the obstruction and a leak. That procedure revealed that plaintiff’s common hepatic duct 

(meaning a tube that carries bile from the liver) was occluded (meaning obstructed) “with a clip.” 

During his deposition, Dr. Wells admitted that “[t]here was quite a bit of inflammation, quite a bit 

of swelling, and I’m sure during the removal of the gallbladder from the fossa that I inadvertently

must have placed that clip[.]”

On December 6, 2019, plaintiff filed a complaint for medical malpractice against Dr. Wells 

and Scheurer Hospital alleging that, during the surgery to remove plaintiff’s gallbladder, Dr. Wells 

“negligently caused iatrogenic injury [meaning illness caused by medical treatment] to one or more 

ducts in the surgical field.” The complaint further alleged that “[t]he iatrogenic injury resulted in 

accumulation of and leakage of bile.” More specifically, the complaint stated that “during surgery 

Dr. Wells negligently placed a surgical clip on the common hepatic duct[,] [w]hich led to infection 

and other complications.” The complaint included an “affidavit of meritorious claim” prepared by 

plaintiff’s expert, Dr. Lee, who stated that Dr. Wells had “negligently placed a surgical clip on the 

common hepatic duct causing infection” and breached the standard of care by causing “iatrogenic 

injury to one or more of the ducts in the surgical field.”

On June 10, 2021, defendants filed a “motion for summary disposition, or in the alternative, 

for [a] Daubert hearing.” Defendants reasoned that, because Dr. Lee’s “testimony is objectionable 

and not admissible, summary disposition is, therefore, appropriate.” Defendants relied upon MRE 

702 and MCL 600.2955 in contesting the admissibility of Dr. Lee’s proposed testimony. The trial 

court conducted a Daubert hearing that spanned three days—October 7, 2021, November 18, 

2021, and January 4, 2022. At the conclusion of that hearing, the trial court granted defendants’ 

request to exclude in toto the proposed expert testimony of Dr. Lee as insufficiently reliable to be 

presented to a jury. After rendering that ruling, the trial court granted summary disposition to 

defendants as a byproduct of its exclusion of plaintiff’s expert witness, whose testimony was an 

essential part of plaintiff’s claim for medical malpractice. Plaintiff unsuccessfully moved for 

reconsideration, and then she filed this appeal.

 II. LEGAL ANALYSIS

The trial court resolved the case by granting summary disposition under MCR 2.116(C)(10) 

to defendants on plaintiff’s medical-malpractice claims. We review do novo the decision on the

motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 

NW2d 665 (2019). But the summary disposition motion hinged upon the decision to exclude Dr. 

Lee’s testimony, so we shall first consider plaintiff’s challenge to that ruling. We review the trial 

court’s decision to exclude evidence for an abuse of discretion. Elher, 499 Mich at 21. “An abuse 

of discretion occurs when the trial court chooses an outcome falling outside the range of principled 

outcomes.” Id. “We review de novo questions of law underlying evidentiary rulings, including 

the interpretation of statutes and court rules.” Id. “The admission or exclusion of evidence because 

of an erroneous interpretation of law is necessarily an abuse of discretion.” Id. Employing these 

standards, we must decide whether the trial court properly excluded Dr. Lee’s testimony.

A. THE DAUBERT CHALLENGE

As a general rule, “ ‘expert testimony is required in a malpractice case in order to establish 

the applicable standard of care and to demonstrate that the professional breached that standard.’ ” 
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Id. Plaintiff proffered Dr. Lee to furnish that expert testimony for her. But defendants challenged 

Dr. Lee’s proposed testimony as inadmissible under MRE 702 and MCL 600.2955. The trial court

then conducted a Daubert hearing where Dr. Lee and two experts on behalf of defendants testified. 

Not surprisingly, the testimony of defendants’ experts—Dr. John Webber and Dr. Linda Bailey—

differed from Dr. Lee’s testimony on significant issues. Dr. Lee testified that Dr. Wells breached 

the standard of care in five respects: (1) Dr. Wells failed to order an ultrasound in addition to a CT 

scan before the surgery; (2) Dr. Wells failed to call for assistance to address bleeding during the 

surgery; (3) Dr. Wells failed to convert from a laparoscopic procedure to an open procedure when 

the surgery required that change; (4) Dr. Wells failed to perform an intraoperative cholangiogram 

involving injection of contrast dye during the surgery; and (5) Dr. Wells failed to order laboratory 

tests after the surgery. The trial court excluded Dr. Lee’s proposed expert testimony on all five of 

the purported shortcomings as unreliable, so we must address each of the five subjects in turn.1

The standards for deciding the admissibility of expert testimony on each of the five subjects 

are set forth in MRE 702 and MCL 600.2955. According to MRE 702, a proposed expert witness 

may testify “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.” In this language, “MRE 702 

has imposed an obligation on the trial court to ensure that any expert testimony admitted at trial is 

reliable.” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d 391 (2004). “ ‘Under 

MRE 702, it is generally not sufficient to simply point to an expert’s experience and background 

to argue that the expert’s opinion is reliable and, therefore, admissible.’ ” Elher, 499 Mich at 23. 

Also, “[a] lack of supporting literature, while not dispositive, is an important factor in determining 

the admissibility of expert witness testimony.” Id.

Beyond MRE 702, defendants rely upon MCL 600.2955(1), which prescribes seven factors 

that trial courts must consider before admitting proposed expert testimony as reliable in a medicalmalpractice case:

(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.

 

1 Dr. Lee became board-certified in the field of general surgery in 1996, and he has been recertified 

twice. He is “a full-time general surgeon” who maintains “an office practice three days out of the 

week, and then surgery on a daily basis” at Sutter Coast Hospital in Crescent City, California. Dr. 

Lee testified that he has “performed over 3,000, if not 4,000, laparoscopy cholecystectomies.” On 

the basis of that background, the trial court had “no doubt regarding Dr. Lee’s qualifications in the 

field” and “no question [about] his education, his background, [and] his experience.” Accordingly, 

the Daubert hearing focused exclusively upon the reliability of Dr. Lee’s opinions in this case.
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(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.

To be sure, “all the factors in MCL 600.2955 may not be relevant in every case.” Elher, 499 Mich 

at 26. But the admissibility of Dr. Lee’s proposed testimony turns upon whether his opinions are 

“sufficiently reliable under the principles articulated in MRE 702 and by the Legislature in MCL 

600.2955.” Id. at 24.

In Elher, our Supreme Court applied the standards from MRE 702 and MCL 600.2955(1) 

to proposed expert testimony in a medical-malpractice case involving the same surgical procedure 

at issue in this case, i.e., “a laparoscopic cholecystectomy (removal of the gallbladder)” in which 

the surgeon “inadvertently clipped the common bile duct leading from plaintiff’s liver, resulting 

in plaintiff having to undergo emergency surgery to remove the clip and repair the duct so that bile 

could again drain from her liver.” Id. at 14-15. The Supreme Court held that “the circuit court did 

not abuse its discretion by excluding [the proposed expert]’s testimony” because he “admitted that 

his [expert] opinion was based on his own personal beliefs, there was no evidence that his opinion 

was generally accepted within the relevant expert community, there was no peer-reviewed medical 

literature supporting his opinion,” and “defendant submitted contradictory, peer-reviewed medical 

literature[.]” Id. at 14. Using those criteria as a template for our analysis, we must consider each 

of the five grounds that Dr. Lee identified in opining that Dr. Wells breached the standard of care 

in his treatment of plaintiff.2

1. FAILURE TO ORDER AN ULTRASOUND

Dr. Lee stated that Dr. Wells breached the standard of care by failing to order an ultrasound 

before performing surgery on plaintiff. Specifically, Dr. Lee faulted Dr. Wells for relying upon a 

CT scan when plaintiff had a history of gallbladder problems and likely had chronic inflammation 

and adhesions, which would limit a surgeon’s vision and make laparoscopic surgery difficult. As 

Dr. Lee stated, “it is a standard of care for general surgeons before embarking on a laparoscopy 

 

2 The parties seem to agree that Dr. Wells, as a board-certified general surgeon, is a specialist under 

MCL 600.2169, and therefore a national standard of care applies.
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surgery to insist and obtain an ultrasound before the surgery.” But Dr. Lee acknowledged that the 

CT scan “discovered the gallstones in the gallbladder” and also revealed “that the gallbladder was 

inflamed[.]” In addition, Dr. Lee conceded that Dr. Wells’s “choice of performing the laparoscopy 

cholecystectomy was appropriate at the time.” But Dr. Lee said that there was “a chance that [Dr. 

Wells] should have done further studies to make sure that it was a safe surgery.” On that matter, 

Dr. Lee explained that the “CT scan is not the real gold standard” for gallbladders. Instead, “it’s 

an ultrasound[,]” which “would have definitely helped [Dr. Wells] to be prepared much better” for 

the surgery by better seeing “whether there is a thickened gallbladder wall,” “whether there was a 

viable common bile duct and how big that is, whether there is a portal vein, [and] if there was an 

aberrant hepatic artery or right hepatic duct that is close to the cystic duct[.]” 

The trial court rejected Dr. Lee’s opinion on CT scans and ultrasounds as unreliable, stating 

that “this goes back to this Dr. Way article” in which “I don’t see anything relative to an ultrasound 

should have been performed instead of a CT” scan. That article, written by Lawrence Way, M.D., 

and other doctors and bearing the title “Causes and Prevention of Laparoscopic Bile Duct Injuries,” 

“analyzed 252 laparoscopic bile duct injuries” and found that “[t]he primary cause of error in 97% 

of cases was a visual perception illusion.” The article noted that “[b]ile duct injuries are the main 

serious technical complication of laparoscopic cholecystectomy.” But in their analysis of injuries 

of that nature, Dr. Way and his colleagues did not mention the benefits of ultrasounds. Moreover,

as the trial court noted, an article on Mirizzi syndrome (meaning common hepatic duct obstruction 

caused by extrinsic compression from an impacted stone in the cystic duct or infundibulum of the 

gallbladder) found the “sensitivity of abdominal ultrasound in the diagnosis of Mirizzi syndrome 

is 23 to 46 percent[,]” whereas “the sensitivity and specificity of abdominal CT for the diagnosis 

of Mirizzi syndrome were 42 and 99 percent, respectively.” That article fortifies the trial court’s 

concern about Dr. Lee’s testimony that the standard of care mandated an ultrasound instead of (or 

in addition to) the CT scan that plaintiff underwent before surgery. Accordingly, we conclude that 

the trial court did not abuse its discretion in precluding Dr. Lee from providing his proposed expert 

testimony about CT scans and ultrasounds.

2. FAILURE TO CALL FOR ASSISTANCE TO ADDRESS BLEEDING

Dr. Lee opined that Dr. Wells breached the standard of care by failing to call for assistance 

to deal with plaintiff’s extensive bleeding during the surgical procedure. Dr. Lee referred to “brisk 

bleeding” and said that, “[w]hen there is a bleeding of such, you have to do either [of] two things.” 

That is, “you tamponade the bleeding to buy some time [and] you have to call out for some help.” 

As Dr. Lee explained, “as a standard of care, you should be reaching out for somebody for a second 

opinion to come in and assist when you get into trouble.” But the trial court contrasted the teaching 

hospital where Dr. Lee works with defendant, Scheurer Hospital, which is not a teaching hospital. 

The trial court implied that there was no other physician whom Dr. Wells could call for help in the 

middle of the surgical procedure. Thus, the trial court did not furnish any findings before barring

Dr. Lee’s testimony about Dr. Wells’s failure to call for assistance. But findings were unnecessary 

because, when Dr. Lee was confronted at the Daubert hearing about the lack of assistance available 

to Dr. Wells, plaintiff’s counsel told the trial court that “I’ll stipulate that that’s not a claim that he 

should call in someone that’s not there. I’ll stipulate to that.” Plaintiff’s counsel’s stipulation took 

the issue of calling for assistance out of play. Accordingly, the trial court did not commit an abuse 

of discretion in precluding Dr. Lee from testifying about Dr. Wells’s failure to call for help during 

the surgical procedure.
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3. FAILURE TO CONVERT TO AN OPEN PROCEDURE

Dr. Lee testified that Dr. Wells breached the standard of care by failing to convert from the 

laparoscopic procedure to an open procedure to complete the surgery. As defendants explained in 

their brief, “[a] laparoscopic procedure is such that the surgeon is able to magnify the visual field, 

but the surgeon is seeing the area in two dimensions. An open procedure allows three dimensional 

visualization and feel by the surgeon but carries with it additional risks of a much larger incision.” 

In Ehler, our Supreme Court observed that defendants filed “affidavits from several experts and at 

least one peer-reviewed publication supporting their opinions that clipping the common bile duct 

is a known potential complication of laparoscopic cholecystectomy because of the lack of depth 

perception on the two-dimensional video monitor used to view the area while performing the 

surgery.” Ehler, 499 Mich at 17. In other words, the very mistake that Dr. Wells made here during 

the surgery on plaintiff is a known potential complication of a laparoscopic cholecystectomy. Id. 

Predictably, there is a wealth of scientific writing discussing the importance of converting from a 

laparoscopic procedure to an open procedure when performing a cholecystectomy.

In a 2012 article written by Dr. Viet H. Le, M.D., and others and published in The American 

Surgeon that is entitled “Conversion of Laparoscopic to Open Cholecystectomy in the Current Era 

of Laparoscopic Surgery,” Dr. Le and his colleagues state: “Conversion to open cholecystectomy 

is not a sign of failure but should be viewed as a safe alternative in difficult situations.” Difficult 

situations that require intraoperative conversion include “inflammation,” “adhesions,” “anatomic 

difficulty,” and “bleeding[.]” Similarly, a 1994 paper published by Jeffrey H. Peters, M.D., FACS, 

and others in The American Journal of Surgery called “Reasons for Conversion from Laparoscopic 

to Open Cholecystectomy in an Urban Teaching Hospital” says that laparoscopic cholecystectomy 

“can be successfully performed the majority of the time,” but “there remains a significant number 

of patients who require conversion to open cholecystectomy.” Dr. Peters and his colleagues state

that “[t]he most common reason for conversion to open cholecystectomy was difficult dissection 

secondary to dense adhesions, severe inflammation, or obscure anatomy.” Further, interoperative 

complications in the form of bleeding necessitated conversion to an open procedure because “[a]ll 

bleeding was easily controlled with laparotomy” (meaning a surgical incision into the abdominal 

cavity). Finally, “[p]atients admitted with acute symptoms were eight times more likely to require 

conversion to open cholecystectomy than were those without.” 

Plaintiff exhibited nearly all of the risk factors discussed in the Le and Peters publications. 

First, the emergency room report and the operative report noted a diagnosis of acute cholecystitis 

severe enough to prompt her immediate admission to the hospital and the scheduling of a surgical 

procedure. Second, the findings in the operative report included “a severely inflamed gallbladder 

. . . along with fairly large blood vessels that were adhered to the area secondary to longstanding 

inflammation.” Third, Dr. Wells testified at his deposition that, during the surgical procedure that 

he performed laparoscopically, “[t]here was bleeding associated with the liver that wasn’t stopping 

with direct pressure[.]” Dr. Wells summarized that the surgery he performed on plaintiff “was by 

far one of the most difficult gallbladders I’ve done” because “inflammation was an issue, the size 

of the gallbladder was an issue[,]” and “[t]here was quite a few things that made that difficult.” 

Dr. Wells conceded that “[n]obody intentionally would place a clip on [the common hepatic] duct.” 

Nevertheless, he acknowledged that “[t]here was quite a bit of inflammation, quite a bit of swelling 

and I’m sure during the removal of the gallbladder from the fossa that I inadvertently must have 

placed that clip” on the common hepatic duct.
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Defendants point out that the operative report reflects a laparoscopic cholecystectomy that 

ended “without [plaintiff] suffering any adverse events.” But in the fullness of time, a laparotomy 

performed on June 26, 2017, to address an obstruction and a leak revealed that plaintiff’s common 

hepatic duct was occluded “with a clip.” Dr. Wells’s failure to detect that problem in surgery was 

a perfectly predictable result of his failure to convert to an open procedure in response to difficult 

conditions. A 1993 article written by Vivian S. Lee, M.D., and others published in The American 

Journal of Surgery called “Complications of Laparoscopic Cholecystectomy” emphatically directs 

that “[w]hen bleeding is difficult to control, conversion to open cholecystectomy is required.” The 

reason for that directive is explained in clear terms by the authors. “A classic mechanism of injury 

has been recognized in the majority of laparoscopic bile duct injuries.” “This mechanism consists 

of misidentification of the common bile duct or common hepatic duct as the cystic duct during the 

initial dissection.” But when that mistake occurs, “[m]ost major bile duct injuries are not detected 

intraoperatively because of the basic misconception.” Significantly, though, an “exception occurs 

occasionally after the operation is converted to open cholecystectomy.” In other words, converting 

to an open procedure is the method for detecting the mistake that Dr. Wells made in this case.

Dr. Lee testified that, when a surgeon encounters uncontrolled bleeding while performing 

a laparoscopic cholecystectomy, “standard of care would be to convert to open cholecystectomy” 

so that the surgeon “will know and identify exactly all the anatomical details to make sure that you 

do not cause any major problems.” Dr. Wells conceded that, during plaintiff’s surgery, he had to 

deal with “bleeding associated with the liver that wasn’t stopping with direct pressure[.]” He also 

confronted other risk factors, such as “quite a bit of inflammation, quite a bit of swelling.” Thus, 

Dr. Lee’s opinion on the standard of care requiring conversion to an open procedure was grounded 

in facts, not supposition, and his opinion was congruent with a wealth of published authority. We 

conclude, therefore, that the trial court abused its discretion by barring Dr. Lee’s expert testimony 

on conversion to an open procedure.

4. FAILURE TO PERFORM AN INTRAOPERATIVE CHOLANGIOGRAM

Dr. Lee concluded that Dr. Wells breached the standard of care by failing to perform an 

intraoperative cholangiogram during the laparoscopic procedure. As Dr. Lee put it, intraoperative 

cholangiography means “inserting a needle or inserting a plastic catheter into various places above 

the common bile duct or common hepatic duct, usually by making a small incision where you think 

the cystic duct is.” Then “you can inject a contrast dye that you can see on x-ray.” “[B]y injecting 

this contrast dye and then visualizing it, you can actually see where . . . there is a common hepatic 

duct, where the common bile duct is, where the cystic duct is.” But Dr. Lee hedged on the standard 

of care for performing an intraoperative cholangiogram, stating that “I cannot really attest whether 

there is a standard of care directly attributed to the intraoperative cholangiogram.” Consequently, 

although the Way article proposes, as a rule of thumb, that good surgeons should “obtain operative

cholangiograms liberally whenever the anatomy is confusing or when inflammation and adhesions 

result in a difficult dissection[,]” the trial court did not abuse its discretion in barring Dr. Lee from 

testifying about a standard of care to which he could not attest.

5. FAILURE TO ORDER POST-OPERATIVE LABORATORY TESTS

Dr. Lee testified that Dr. Wells breached the standard of care by failing to order laboratory 

tests for plaintiff after surgery. Specifically, Dr. Lee explained that “the postoperative note by Dr. 
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Wells clearly delineates that there were no labs or any other test that was ordered.” Dr. Lee said: 

“I believe that that is below the standard of care for this particular case.” The cross-examination

of Dr. Lee asked if “there’s no peer-review literature you’re aware of that indicates that a general 

surgeon must order postop labs in a situation where he does not think there’s a problem, true?” In 

response, Dr. Lee acknowledged that “I do not know of any article that states the standard of care 

is that you have to order all these” tests. Because the operative notes reflect no concerns Dr. Wells 

had after he finished the surgery, the trial court did not abuse its discretion in precluding Dr. Lee 

from testifying about Dr. Wells’s failure to order post-operative testing for plaintiff. 

B. SUMMARY DISPOSITION

The trial court’s summary disposition award under MCR 2.116(C)(10) flowed inexorably 

from the exclusion of Dr. Lee’s proposed expert testimony. In Elher, our Supreme Court approved 

the trial court’s decisions to bar the testimony of plaintiff’s expert as unreliable and grant summary 

disposition because of the lack of expert testimony supporting the plaintiff’s case. Ehler, 499 Mich 

at 18, 28. Our Supreme Court pointed out that, as a general matter, “ ‘expert testimony is required 

in a malpractice case in order to establish the applicable standard of care and to demonstrate that 

the professional breached that standard.’ ” Id. at 21. Here, however, we have decided that, in one 

respect, the trial court abused its discretion in excluding Dr. Lee’s expert testimony. Accordingly, 

the foundation for the trial court’s award of summary disposition to defendants no longer remains 

in place, so we must reverse the trial court’s summary disposition award and remand the case for 

further proceedings.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with 

this opinion. We do not retain jurisdiction.

/s/ Christopher M. Murray

/s/ Michael J. Riordan

/s/ Christopher P. Yates