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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UNPUBLISHED 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: STEPHENS, P.J., and CAVANAGH and MURRAY, JJ. 

MURRAY, 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 concluded that an expert who 

proffered testimony almost identical to plaintiff’s expert in this case, was admissible. I cannot 

legitimately distinguish our case from Elher, and so I must concur in the majority’s conclusion to 

reverse the trial court order. MCR 7.215(J)(1). However, I agree with Judge HOEKSTRA’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 discretion by excluding the 

testimony of plaintiff’s proposed expert witness on the basis that 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 decision 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 deferential standard of review that requires for reversal a conclusion that 

the trial court’s decision was outside the range of reasoned and principled outcomes. See Barnett 

v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007). This standard recognizes 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 have far more than a difference of 

judicial opinion with the lower court regarding the outcome reached. See Saffian v Simmons, 
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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 testimony in a medical malpractice 

case is governed by MRE 702 and MCL 600.2955. MRE 702 states: 

 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. 

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 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. 
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 The trial court thoroughly examined and then applied the relevant criteria to the 

undisputed facts. In the end, the court set forth the following reasoning in excluding plaintiff’s 

expert: 

 I have reviewed the motions, the responses, the replies, the deposition 

testimony of the doctor. I find that, for the reasons articulated 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 and exhaustively addressed these 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 and 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 supporting literature or the other factors that have 

been mentioned and the statutory basis that this Court is intended to vet. 

 He has made a[n] infallibility standard, which is that if there’s any injury, 

there must be negligence. In the course of his discussion under oath, he vacillates 

and contradicts himself in several 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 infallibility and look to the 

other more concrete examples of claims of negligence, that I agree with the 

premise that the foundation of infallibility is fatally flawed. And, therefore, the 

remainder of his opinion is unreliable and otherwise unsupported by the literature. 

 . . . I want to highlight a couple of things. One is that I agree with defense 

counsel’s argument that some of the argument made was not appropriately 

disclosed in the notice of intent and the affidavit of merit, and that we have a very 

strong statutory scheme in which vague allegations are inappropriate 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 last moment 

additional theories of malpractice is inappropriate and not—should not be 

countenanced to allow a case to proceed through such argument. 

 The statutory basis that was initially addressed by Dr. Ferguson’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 looks at in connection 

with the statutory requirements of 2955, I agree that they are not met. There’s no 

scientific testing, no peer review, no generally accepted principles. 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). 
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 And, therefore . . . [f]or all the arguments I’ve already addressed and/or 

incorporated, I will grant the motion. And I will issue an order 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 the scientific community or in the 

medical literature, (2) his opinion 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 presented in the affidavit of merit or notice of intent. 

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

see Woodward v Custer, 473 Mich 1, 8; 702 NW2d 522 (2005), the trial courts other reasons for 

excluding the testimony were a reasonable application of the statutory requirements and its 

conclusions were not outside the range of principled outcomes. Like the Ehler Court, the 

majority criticizes the trial court’s recognition of the absence of any support of the expert’s 

opinion in the medical literature or amongst his peers, but those are, of course, two mandatory 

criteria that must be considered under the statute. MCL 600.2955(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 its basis have been subjected to any

kind of any scientific testing, MCL 600.2955(1)(a), nor has plaintiff submitted any other 

evidence pertaining to any other of the relevant statutory criteria. 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 each case, here we have no evidence pertaining to any of the factors. 

Much of the parties focus has been on Elher, which is factually analogous 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 these 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 held that the expert’s experience and qualifications were alone 

sufficient to allow his testimony before the jury. But our Supreme Court has held that “[u]nder 

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.” Edry v Adelman, 486 

Mich 634, 642; 786 NW2d 567 (2010). See also, Elher, 308 Mich App at 316 (HOEKSTRA, 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 qualifications 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 literature defendants submitted is 

not proper to consider, but it is the literature (or any other evidence) that plaintiff produces that is 

relevant. 
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 Nevertheless, Elher is binding on us and thus I reluctantly must vote to reverse. 

 

/s/ Christopher M. Murray