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### STATE OF MICHIGAN

COURT OF APPEALS

JULIE B. KING,

Plaintiff-Appellant/Cross-Appellee, UNPUBLISHED September 22, 2016

v No. 328018

Washtenaw Circuit Court

CENTER FOR PLASTIC & RECONSTRUCTIVE SURGERY P.C. and PAUL H. IZENBERG, M.D., LC No. 13-000316-NH

Defendants-Appellees/CrossAppellants

and

CENTER FOR PLASTIC & RECONSTRUCTIVE SURGERY P.L.C.,

Defendant.

Before: J ANSEN , P.J., and K. F. K ELLY and O’B RIEN , JJ.

P ER C URIAM

.

Plaintiff, Julie B. King, appeals as of right the circuit cour t’s June 4, 2015 order granting summary disposition to defendants, C enter for Plastic & Reconst ructive Surgery, P.C., Center for

Plastic & Reconstruc tive Surgery P.L.C., 1 and Paul H. Izenberg, M.D., pursuant to MCR 2.116(C)(10). On appeal, plainti ff challenges this order as we ll as the circuit court’s April 6, 2015 order granting defendants’ mo tion to strike plaintiff’s ex pert witness’s testimony. Defendants cross-appeal as of ri ght the circuit court’s June 4, 2015 order as well, raising an alternative ground to support the circuit court’s decisions str iking plaintiff’s expert witness’s testimony and granting their motion for summary disposition. B ecause we are unable to

conclude whether the circuit cou rt abused its discretion in gra nting defendants’ motion to strike

1 The parties stipulated to dismiss Center for Plastic & Reconst ructive Surgery, P.L.C. According to defendants’ answer, “ the P.L.C. was not in existen ce in 2011.” Thus, any reference to “defendants” refers only to Center for Plastic & Reconstruct ive Surgery, P.C. and Dr. Izenberg.-2- Dr. Rosenberg’s testimony as unreliable pursuant to MRE 702 and MCL 600.2955, we are compelled to remand this matter for further proceedings.

This medical-malpractice lawsuit arises out of an injury to pl aintiff’s lateral femoral cutaneous nerve (LFCN) during a revision abdominoplasty surgery performed on plaintiff by Dr. Izenberg on May 19, 2011. It appears undisputed that Dr. Izenb erg partially severed plaintiff’s LFCN during that surgery, and plaintiff reported burning sensat ions and numbness immediately thereafter. Dr. Izenberg’s attempts to repair the LFCN in the days following the surgery proved unsuccessful, and the record reflects that plaintiff will likel y be required to treat the burning

sensations and numbness with med ication and injections indefini tely.

Plaintiff subsequently filed this lawsuit against defendants, alleging that Dr. Izenberg’s conduct during the revision abdo minoplasty surgery constituted medical malpractice. Specifically, plaintiff alleged t hat Dr. Izenberg was negligent in partially severing the LFCN, that he breached the applicable standard of care in doing so, and th at plaintiff suffered a variety of lifelong injuries as a result of this conduct. With her summon s and complaint, plaintiff included an Affidavit of Meritorious Claim by Michael H. Rosenberg, M.D. , F.A.C.S. In that affidavit, Dr. Rosenberg opined that Dr. Izenberg breached the applicable standard of care during the May 19 revision abdominoplasty surgery by partially severing the LF CN and that this breach caused plaintiff’s injuries.

Defendants filed their answer and affirmative defenses, assert ing that Dr. Izenberg’s conduct during the May 19 revisi on abdominoplasty surgery did n ot constitute medical malpractice. Specifically, defendants, while primarily asserti ng that the complaint was “inadequate and insufficient,” “den[ied] any and all allegation s or inferences disregarding duties and obligations, variance with the national standards of care, acts and omissions of negligence or malpractice in the premises . . . .” With their answer and aff irmative defenses, defendants included an Affidavit of Meritorious Defense by Paul S. Cederna , M.D. In that affidavit, Dr. Cederna opined Dr. Izenberg did not breach the applicable stand ard of care during the May 19 revision abdominoplasty surgery a nd took proper steps in an att empt to correct it after plaintiff’s postoperative symptoms arose.

As plaintiff’s sole expert, 2 Dr. Rosenberg’s testimony was cr ucial and is at the center of the issues raised by both parties on appeal. Dr. Rosenberg was deposed de bene esse 3 on

2 In her witness list, plainti ff identified Dr. Rosenberg and “A ll treating physicians of Julie King, including but not limited to Fasail Ahmad, M.D.” as her only ex pert witnesses. We are unable to find any indication in the record that plaintiff intended to ca ll any expert witnesses other than Dr. Rosenberg to establish the elements of negligence.

3 Plaintiff’s counsel stated at the beginning of the December 15 deposition that Dr. Rosenberg’s testimony on that date was “to be used at his trial in March of 2015 in place of his live appearance at the trial.” While he now claims that he may well have elected to instead present Dr. Rosenberg as a live witness at trial, it seems clear, at le ast in our view, that counsel intended to present the December 15 deposition testimony only.-3- December 15, 2014. In his December 15 deposition, Dr. Rosenber g testified that he was board certified in general surgery, that he was licensed to practice medicine in New York and in military installations, that he specializes in plastic and reco nstructive surgery and has done so for approximately 20 years, that he obtained his undergraduate and medical degrees from Columbia University, that he did his resi dency at Columbia Presbyterian Medical Center in both general surgery and plastic surgery, and that he had a publication on a bdominoplasty. As it relates to revision abdominoplasty surgeries , Dr. Rosenberg testified that it is “a percentage of [his] work” but “not the major component” of it.

Dr. Rosenberg testified that, as it relates to this case, he h ad “reviewed the records that [he] was sent from Dr. Izenberg’s office regarding Julie,” “Dr. Sturm’s records, mostly related to cardiology and clearance for surg ery,” “Dr. Beird’s records who had performed both the original abdominoplasty back . . . in 2008 and a partial revision on a p ortion of the scar later on,” “the neuro pain consultant records, most of Dr. Linninger,” “the Fli nt Neurological Center records of Dr. Faisel,” “the back pain and sports rehab specialist records of Dr. Atty,” “the complaint,” “the deposition of Dr. Izenberg,” “the deposition of Julie,” “the de position of . . . her fiancé, Justin Dennis Henry,” “an affidavit of meritorious defense of Dr. Cerd ena,” “the record of [his] own deposition,” and “some background ma terial from an anatomical t ext.”

Based on his review of the materials described above as well a s his experience, Dr. Rosenberg testified as follows when asked for his “criticisms” of Dr. Izenberg’s conduct during the May 19 revision abdominoplasty surgery: “In the course of the revision abdominoplastly Dr. Izenberg injured a major branch or portion of the lateral femor al cutaneous nerve which directly led to symptoms of pain, burni ng, numbness that Julie will have to deal with her entire life.” Dr. Rosenberg testified that Dr. Izenberg deviated from the applica ble standard of care during the May 19 revision abdominoplasty surgery when he “expose[d] th[e LFCN] to injury and then injure[d] it.” As to how this occurred, Dr. Rosenberg opined a s follows: “Either he was dissecting deeper than he thought he was, he may have misjudged the level of the facia and where he was, or he placed his suture significantly deeper as h e was trying to anchor the upper scar down towards the . . . inferior or caudal area of the body .” Ultimately, Dr. Rosenberg was clear in opining that the LFCN “has no role to play in this ope ration[,]” that “[t]his particular nerve should not have been injured in this particular surgery,” that the LFCN “is not in the operative field and should not be subject to injury,” and that Dr. Izenberg injured the LFCN by “dissecting where he . . . did not need to be,” i.e., “undernea th the fascia[.]”

Defendants moved to strike Dr. Rosenberg’s December 15 testimo ny approximately two months later. According to the ir motion, defendants argued tha t Dr. Rosenberg’s testimony was

unreliable under MRE 702 and MCL 600.2955 because he was “unabl e to cite any literature which supports his bold assertion that injury to this nerve in this type of procedure is negligent and malpractice,” because “[h]e did not offer any testimony ind icating a reliable basis for his opinion,” because “his testimony is contrary to known medical p rinciples and the body of literature on the subject he comments upon,” and because, “[d]u ring the entire time of Dr. Rosenberg’s testimony, not once did he give any reliable data, studies, or information upon which he based his opinions or support his opinions.” In essen ce, defendant’s position was simple—Dr. Rosenberg’s testimony was unreliable because literat ure, data, studies, or other similar materials do not support it.-4- Plaintiff responded, arguing that Dr. Rosenberg admittedly did not “cite any literature but this was because it was unnecessary, pointless, and probably no n-existent” given the obvious nature of Dr. Izenberg’s negligence. Plaintiff argued that Dr. Rosenberg’s opinion was based on his review of the medical and leg al records in this case as wel l as his knowledge , skill, education, training, and experience, and th at “[t]his background [wa]s muc h more than sufficient to form an adequate foundational basis for his testimony in this matter.” Plaintiff also requested that she be awarded attorney fees and costs pursuant to MCL 600.2591 and MC R 2.625(A)(2), arguing that plaintiff’s motion was noth ing more than frivolous.

Oral argument on defendants’ motion to strike was held on Marc h 19, 2015, and the parties’ arguments differed quite a bit from what we perceive a s those originally raised by the parties in their pleadings. While defendants did argue that Dr . Rosenberg’s testimony was unreliable because it was not supported by literature, their ar gument focused on a distinction between the “typical” location of the LFCN and the location of plaintiff’s LFCN. According to defendants, Dr. Rosenberg’s “whole theory” was unreliable becau se, according to Dr. Izenberg’s operative records, plaintiff’s LF CN was not located in a “typic al” location. Because Dr. Rosenberg’s testimony was limited to cases involving the “norma l” location of the LFCN, his testimony was simply too unreliable to present to a jury. Plai ntiff countered, arguing that the location of the LFCN is entirely irrelevant:

Doesn’t make a difference. The nerve is below the fascia. Eve n if it’s . . . in a wrong position it’s below the fas cia and the surgery [sic] nerv e goes below the fascia. I mean that’s really the bottom line in this case. Yo u’re supposed to never go below the fascia. The whole operation occurs above the fasc ia. That nerve never, never occurs above the fascia. It’s that simple.

The circuit court granted defe ndants’ motion to strike, explai ning, in full, as follows:

[B]ut I think your argument makes sense. I don’t think that th is physician -- I don’t think there’s any evidence to the contrary that the nerve was located -- which the person who was there said it was -- that it is varian t. It appears to be in an extreme location ah -- and there’s been no testimony that gi ven that variance, this isn’t a normal procedure, t hat this doctor violated the st andard of care. Your motion is granted.

Thus, apparently based solely on Dr. Izenberg’s testimony that the LFCN was “in an extreme location” and “variant,” the circuit court determined that Dr. Rosenberg’s testimony was wholly

unreliable under MRE 702 and MCL 600.2955 and excluded it in fu ll. A written order submitted by defendants pursuant to the seven-day, MCR 2.602(B), rule ref lecting the circuit court’s decision was entered on April 6, 2015. 4

4 The circuit court denied plaintiff’s motion for reconsideratio n of the April 6 order, and this Court subsequently dismissed plai ntiff’s appeal from that order for lack of jurisdiction, i.e., because the April 6 order was not a final order appealable as o f right. King v Ctr for Plastic &-5- Relying on the circuit court’s April 6 order granting their mo tion to strike Dr. Rosenberg’s testimony, defendant s then moved for summary dispos ition pursuant to MCR 2.116(C)(10), and the circuit court granted that motion. A wri tten order submitted by defendants pursuant to the seven-day rule reflecting the circuit court’s d ecision was entered June 5, 2015, and this appeal followed.

A circuit court’s decision to admit or exclude evidence is rev iewed for an abuse of

discretion. Elher v Misra , 499 Mich 11, 21; 878 NW2d 790 (2016). A circuit court abuses its discretion when it chooses an outcome that falls beyond the ran ge of principled outcomes. Id

. “The admission or exclusive of evidence because of an erroneous interpretation of law is necessarily an abuse of discretion.” Id . A circuit court’s interpr etation and application of statutes and court rules in the process of determining whether evidence is or is not admissible is

reviewed de novo. Id . Likewise, a circuit court’s de cision on a party’s motion for summary disposition is also reviewed de novo. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition pursuant to MCR 2.116(C)(10) is ap propriate only where no genuine issue of material fact i s established, and the moving p arty is entitled to judgment as a

matter of law. Id . at 120.

On appeal, plaintiff argues, amo ngst other things, that the ci rcuit court abused its discretion in excluding Dr. Rose nberg’s testimony as unreliable pursuant to MRE 702 and MCL

600.2955.

In medical malpractice cases, plaintiffs must establish the fo llowing: (1) the applicable standard of care, (2) that the applicable standard of care was breached by the defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Woodard v

Custer , 473 Mich 1, 6; 702 NW2d 522 (2005). To do so, expert testimo ny is generally required.

Id . A party offering expert testimony in a medical-malpractice l awsuit must demonstrate that the expert is qualified pursuant to MRE 702 and MCL 600.2955.

MRE 702 provides as follows:

If the court determines that scie ntific, technical, or other sp ecialized 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, ex perience, training, or education may testify thereto in the form of an opinion or othe rwise if (1) the testimony is based on sufficient facts or data, (2) the testimo ny is the product of reliable principles and methods, and (3) the witness has applie d the principles and

methods reliable to the facts of the case.

MRE 702 “requires the circuit court to ensure that each aspect of an expert witness’s testimony, including the underlying data and methodology, is reliable.” Elher , 499 Mich at 22. See also
Daubert v Merrell Dow Pharm, Inc , 509 US 579, 589; 113 S Ct 2786; 125 L Ed 2d 469 (1993)

Reconstructive Surgery PLC , unpublished order of the Court of Appeals, entered June 9, 20 15 (Docket No. 328018).-6- (providing that a “trial judge mus t ensure that any and all sci entific testimony or evidence admitted is not only relevant, but reliable.”).

MCL 600.2955(1) similarly provides as follows:

In an action for the death of a person or for injury to a pers on or property, a scientific opinion rendered by an otherwise qualified expert is not admissible unless the court determines that the opinion is reliable and wi ll assist the trier of fact. In making that determination, the court shall examine th e opinion and the basis for the opinion, which includes the facts, technique, met hodology, and reasoning relied on by the expert, a nd shall consider all of th e following factors:

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

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

(c) The existence and maintenance of generally accepted standa rds governing the application and interpretation of a methodology o r technique and whether the opinion and its basis are consistent with those sta ndards.

(d) The known or potential erro r rate of the opinion and its b asis.

(e) The degree to which the opinion and its basis are generall y accepted within the relevant expert community. As used in this subdivis ion, “relevant expert community” means individuals who are knowledgeable in th e field of study and are gainfully employe d 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 basi s to reach the type of opinion being proffered.

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

In sum, MRE 702 and MCL 600.2955 require that the trial court e ngage in a thorough analysis to determine whether an expert’s testimony is sufficiently reliabl e to be presented to a jury.

After reviewing the record in this case, we are simply unable to conclude whether the

circuit court abused its discre tion in granting defendants’ mot ion to strike Dr. Rosenberg’s testimony as unreliable pursuan t to MRE 702 and MCL 600.2955. “An evidentiary hearing under MRE 702 and MCL 600.2955 is merely a threshold inquiry to ensure that the trier of fact is not called upon to rely in whole or in part on an expert opi nion that is only masquerading as

science.” Chapin v A & L Parts, Inc , 274 Mich App 122, 139; 732 NW2d 578 (2007) (emphasis in original); see also Gilbert v DaimlerChrysler Corp , 470 Mich 749, 782; 685 NW2d 391 (2004) (providing that “MRE 702 mandates a searching inquiry” a nd “[c]areful vetting of all aspects of expert testimony”). In this case, a review of the c ircuit court’s decision (quoted in full above) reflects that the circuit court did not mention, much le ss address or carefully analyze,-7- MRE 702, MCL 600.2955, or Daubert . Rather, the circuit court merely adopted Dr. Izenberg’s testimony that the location of plaintiff’s LFCN was variant and found that determination dispositive. Thus, the requisite threshold inquiry was lacking . In short, we ha ve no idea whether

the circuit court found Dr. Ros enberg reliable or not. Instead , we only know that the circuit court

believes that the location of the LFCN controls whether a surge on is negligent if he or she partially severs it during a re vision abdominoplasty surgery. Aside from the fact that this, as far as we can tell, is a question of fact for a jury to determine, we must point out that there is nothing in the record—medical, legal, o r otherwise—to conclusively supp ort a conclusion that the location of the LFCN is, in and of itself, dispositive of all i ssues raised in this case. 5 But, even more importantly, it is certainly not dispositive of the issue raised by both parties before the circuit court and on appeal—whether Dr. Rosenberg’s testimony w as sufficiently reliable under

MRE 702 and MCL 600.2955.

Because we are unable to conclude whether the circuit court ab used its discretion in granting defendants’ motion to s trike Dr. Rosenberg’s testimony as unreliable pursuant to MRE 702 and MCL 600.2955, we are compelled to remand this matter fo r further proceedings. On remand, the circuit court is to address defendants’ argument th at Dr. Rosenberg’s testimony should be struck as unreliable because it is not supported by l iterature based on the record as created by the parties under MRE 702, MCL 600.2955, and Daubert . Should the circuit court determine that his testimony was unreliable, it should grant de fendants’ motion, and proceedings should continue accordingly. Should the circuit court determin e that his testimony was reliable, it should deny defendants’ motion, and proceedings should conti nue accordingly.

It is important to make clear that we are not expressing a vie w as to whether plaintiff has carried her burden in proving that Dr. Rosenberg’s testimony wa s sufficiently reliable to be presented to the jury, nor are we expressing a decision as to w hether plaintiff will be able to create a genuine issue of material fact in regard to the elemen ts of her malpractice-claim based

5 To be clear, neither plaintiff nor defendants have provided an ything to support a conclusion that the location of the LFCN is, in and of itself, dispositive othe r than the conflicting testimony of their own experts. Plaintiff provided Dr. Rosenberg’s testimon y that the location of the LFCN is irrelevant based on his opini on that Dr. Izenberg should not ha ve operated below the fascia at all. Defendants provided Dr . Izenberg’s testimony that the location of plaintiff’s LFCN was so vastly different from its typical location that he could not have know n he would have partially severed it when stitching to the fascia. Defendants also provided medi cal literature that they claimed directly contradicts Dr. Rosenberg’s opinion before the circuit court. Their claim in this regard is, at best, mistaken and, at worst, deliberately misleading. While defendants claimed that “[t]he accepted literature states there is an incidence of injury to this lateral femoral cutaneous nerve during this procedure” (emphasis added), the only medical literature presen ted by defendants expressly excludes “revisional (correctional proce dures after a primary procedure) ,” i.e., the only procedure at issue in this case. While defendants also claimed before the circuit court that their “experts are gonna say that revisi onal surgeries are even harde r and the incidents of nerve damage from those even increases, so it’s more than what it is for general abdominoplasties,” there is absolutely nothing in t he record to support this claim

.-8- solely on Dr. Rosenberg’s testi mony. Instead, we are choosing to remand this matter for further proceedings before the circuit court because, based on the reco rd as presented before us, we are simply unable to conclude whether the circuit court’s ultimate decision reflects an exercise of its gatekeeping function that falls w ithin the range of principled outcomes.

Accordingly, we vacate the circuit court’s April 6, 2015 order granting defendants’ motion to strike plaintiff’s expert witness’s testimony and its June 4, 2015 order granting defendants’ motion for summary disposition and remand for furth er proceedings consistent with this opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.

/s/ Kathleen Jansen /s/ Kirsten Frank Kelly

/s/ Colleen A. O’Brien