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### STATE OF MICHIGAN

COURT OF APPEALS

SHANTE HOOKS,

Plaintiff-Appellant, UNPUBLISHED January 5, 2016

v No. 322872 Oakland Circuit Court LORENZO FERGUSON, M.D., and ST. JOHN HEALTH d/b/a ST. JOHN PROVIDENCE HOSPITAL, LC No. 2013-132522-NH

Defendants-Appellees.

Before: S TEPHENS , P.J., and C AVANAGH and M URRAY , JJ.

M URRAY , J ( concurring ).

Our Court’s recent decision in Elher v Misra , 308 Mich App 276; 863 NW2d 335 (2014), dealt with the same issue under almost identical facts, and con cluded that an expert who proffered testimony almost identi cal to plaintiff’s expert in t his case, was admissible. I cannot legitimately distinguish our case from Elher , and so I must concur in th e majority’s conclusion to reverse the trial court order. MCR 7.215(J)(1). However, I ag ree with Judge H OEKSTRA ’ S dissenting opinion in Elher , see 308 Mich App at 313-317, and were it not for Ehler , I would vote to affirm.

The dispositive issue is whether the trial court abused its di scretion by excluding the testimony of plaintiff’s proposed expert witness on the basis t hat it failed to meet the requirements of MCL 600.2955 and MRE 702. Craig v Oakwood Hosp , 471 Mich 67, 76; 684 NW2d 296 (2004). Although establishing an abuse of discretion is not as difficult as it once was,

see Spaulding v Spaulding , 355 Mich 382, 384-385; 94 NW2d 810 (1959) (setting forth the mostly discarded standard of having to demonstrate that a decis ion was “so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”), it is still a very defer ential standard of review that requires for reversal a conclusion that the trial court’s decision was outside the range of reasoned an d principled outcomes. See Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007). This standard recogni zes that “ ‘there will be more than one reasonable and principled outcome,’ ” Maldonado v Ford Motor Co , 476 Mich 372, 388; 719 NW2d 809 (2006), quoting People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003), and therefore the appellate court must still h ave far more than a difference of judicial opinion with the lower c ourt regarding the outcome rea ched. See Saffian v Simmons
,-2- 477 Mich 8, 12; 727 NW2d 132 (2007), quoting Gilbert v DaimlerChrysler Corp , 470 Mich 749, 761; 685 NW2d 391 (2004), quoting Alken-Ziegler, Inc v Waterbury Headers Corp , 461 Mich 219, 227; 600 NW2d 638 (1999).

As noted by the majority, the admissibility of expert testimon y in a medical malpractice case is governed by MRE 702 and MCL 600.2955. MRE 702 states:

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion 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 reliabl y to the facts of the case.

MCL 600.2955 states:

(1) In an action for the death of a person or for injury to a person or property, a scientific opinion re ndered by an otherwise qualifi ed expert is not admissible unless the court determines that the opinion is reli able and will assist the trier of fact. I n making that determi nation, the court sha ll 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 c onsider all of the 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.-3- The trial court thoroughly examined and then applied the relev ant criteria to the undisputed facts. In the end, the court set forth the followin g reasoning in excluding plaintiff’s expert:

I have reviewed the motions, the responses, the replies, the d eposition testimony of the doctor. I find that, for the reasons articula ted by the defendants, that the doctor’s testimony is unreliable.

There isn’t a need for a Daubert [ 1 ] hearing as the deposition is very thorough and has fully explored a nd exhaustively addressed thes e issues. In particular, the doctor makes—and without limiting the foregoing , which is incorporating by reference the argument of the defense counsel not only on the record, but also in the briefs a nd the reply, but in particular , just to highlight, this particular doctor has articulated a standard of care, which is not supported by the scientific community, by the s upporting literature or the other factors that have been mentioned and the statutory ba sis that this Court is inten ded to vet.

He has made a[n] infallibility standard, which is that if ther e’s any injury, there must be negligence. In the course of his discussion unde r oath, he vacillates and contradicts himself in sev eral material respects.

He—and I agree with the problem with—although I looked hard to see if I could parse out portions of the opinion to eliminate the infall ibility and look to the other more concrete examples of claims of negligence, that I ag ree with the premise that the foundation of infallibility is fatally flawed. And, therefore, the remainder of his opinion is unr eliable and otherwise unsupporte d by the literature.

. . . I want to highlight a coupl e of things. One is that I agree with defense counsel’s argument that some of the argument made was not appro priately disclosed in the notice of intent and the affidavit of merit, a nd that we have a very strong statutory scheme in which vague allegations are inapprop riate and that there must be specificity with regard to medical malpractice to allow an appropriate defense of the same, and that to spring on at the l ast moment additional theories of malpractice is inappropriate and not—sho uld not be countenanced to allow a case to p roceed through such argument.

The statutory basis that was initially addressed by Dr. Fergus on’s counsel, I think is very strong. It reveals why this particular opinion is not supported. I will not reiterate it here, but every single factor that one lo oks at in connection with the statutory requirements of 2955, I agree that they are not met. There’s no scientific testing, no peer revie w, no generally accepted princ iples. The error rate is not known, not accepted by the relevant community, et cetera

.

1 Daubert v Merrell Dow Pharm, Inc , 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).-4- And, therefore . . . [f]or all the arguments I’ve already addr essed and/or incorporated, I will grant the motion. And I will issue an ord er reflecting the

same.
As the foregoing makes clear, the trial court offered several reasons for excluding the proposed expert testimony: (1) his opinion had no support in th e scientific community or in the medical literature, (2) his opi nion set forth a negligence per se (or “infallibility”) standard, (3) his opinion did not meet any of the other requirements set forth in the statute, and (4) part of his opinion addressed an issue not presen ted in the affidavit of me rit or notice of intent.

Although the majority correctly disposes of the second rationa le used by the trial court,

see Woodward v Custer , 473 Mich 1, 8; 702 NW2d 522 (2005), the trial courts other re asons for excluding the testimony were a rea sonable application of the st atutory requirements and its conclusions were not outside the r ange of principled outcomes. Like the Ehler Court, the majority criticizes the trial court’s recognition of the absenc e of any support of the expert’s opinion in the medical literature or amongst his peers, but tho se are, of course, two mandatory criteria that must be considered under the statute. MCL 600.29 55(1)(b) & (e). Clerc v Chippewa County War Memorial Hosp , 477 Mich 1067; 729 NW2d 221 (2007). And, as the trial court noted, there was no evidence that the opinion and i ts basis have been subjected to any kind of any scientific testi ng, MCL 600.2955(1)(a), nor has pla intiff submitted any other evidence pertaining to any other of the relevant statutory crit eria. And, of course, it is plaintiff’s burden to do so. Gilbert , 470 Mich at 781. 2 Thus, even though each statutory criteria may not always prove applicable to eac h case, here we have no evidence pertaining to any of the factors.

Much of the parties focus has been on Elher , which is factually a nalogous to this case. Elher essentially approves the use of an expert despite there being no evidence submitted by the plaintiff that is relevant to the statutory requirements or the analysis required by MRE 702, and does so on the basis that there is no information relevant to t hese statutory requirements. See Elher , 308 Mich App at 296-309. Relying in part on the United States Court of Appeals for the Sixth Circuit decision in Dickenson v Cardiac & Thoracic Surgery of Eastern Tennessee , 388 F3d 976 (CA 6, 2004), the Court he ld that the expert’s experien ce and qualifications were alone sufficient to allow his testimony before the jury. But our Sup reme Court has held that “[u]nder MRE 702, it is generally not suffi cient to simply point to an e xpert’s experience and background to argue that the expert’s opini on is reliable and, therefore, admissible.” Edry v Adelman , 486 Mich 634, 642; 786 NW2d 567 (2010). See also, Elher , 308 Mich App at 316 (H OEKSTRA , J., dissenting). And, since courts are required to apply MRE 702 ( and MCL 600.2955, for that matter) to ensure that any expert testimony is “reliable”, Gilbert , 470 Mich at 780, how can a trial court make that critical determination without any information by which to gauge the opinion? The expert’s qualific ations and experience only tell us about the individual, not about the reliability of his proposed testimony.

2 Indeed, plaintiff spends a good deal of time arguing why the l iterature defendants submitted is not proper to consider, but it is the literature (or any other evidence) that plaintiff produces that is relevant.-5- Nevertheless, Elher is binding on us and thus I relucta ntly must vote to reverse.

/s/ Christopher M. Murray