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### STATE OF MICHIGAN

COURT OF APPEALS

TERI WALTERS and KIM WALTERS,

Plaintiffs-Appellants, UNPUBLISHED January 29, 2015

v No. 319016 Eaton Circuit Court DONALD S. FALIK, D.D.S., d/b/a FALIK FAMILY DENTISTRY, ROBERT C. FALIK, D.D.S., and JANE DOE, LC No. 12-000658-NH

Defendants-Appellees.

Before: M URPHY , P.J., and M ETER and S ERVITTO , JJ.

M ETER , J. ( dissenting)

. Because I believe that the lower court properly exercised its discretion in excluding the testimony of Dr. M. Eric Gershwi n, I respectfully dissent. I w ould affirm the trial court’s ruling.

Plaintiffs contended that defe ndants erroneously provided phos phoric acid etching solution to Teri Walters instead of the teeth-whitening solutio n that they were supposed to have provided. In February 2011, Teri used this solution overnight. Defendant Donald Falik agreed that etching solution is only intended to be used for seconds a t a time. Teri testified at her deposition that in the morning af ter she used the solution, it felt like her mouth was burning. She claimed that defendants admitted giving her the wrong solution and that they attempted to repair the stains that had resulted on her teeth.

In April 2011, Teri was diagnosed with chronic sinusitis and l ater complained of a plugging sensation in her left ear . After persistent symptoms, she was diagnosed with Wegener’s granulomatosis (WG), an autoimmune disease that shortens typica l lifespan and that is characterized by symptoms such as inflammation of the sinuses a nd lungs. Plaintiffs’ proposed expert witness, Gershwin, testified during his deposition that, in his opinion, Teri developed WG because of the use of the etchi ng solution combined with a gene tic predisposition to WG.

Gershwin testified that WG occurs in persons who are genetical ly predisposed to having a “promiscuous” immune system that is highly responsive to anti bodies. He stated that some mechanism will induce the death of cells, causing the release o f a “neutrophillic antigen,” and a person who is genetically susceptible will then mount an immune response. He testified that there are a variety of environmental agents that can contribute to the response. Gershwin admitted that he had provided no literature concluding that pho sphoric acid causes or contributes-2- to WG, but stated that there are data about solvents, hydrocarb ons, and silica, which is adjacent to phosphorus on the periodic tab le. Gershwin te stified that w hat happened was that the phosphoric acid hit water, dissociated, and produced a large in flammatory response. He opined that although plaintiff might have gotten WG at some point rega rdless, she would not have gotten it when she did without the exposure to the etching solu tion.

Defendants filed a motion in limine to exclude Gershwin’s test imony due to lack of supporting evidence that exposure to phosphoric acid is recogni zed as a cause of WG. The trial court heard argument on the motion on September 19, 2013, and i ssued its decision from the bench.

Applying MRE 702, the court found that Gershwin was highly qua lified in the field and that expert testimony would assist the trier of fact, but went on to find that it was questionable whether his opinion was based on sufficient facts. The court f ound that the majority of the articles presented by the partie s indicated that the etiology f or WG was unknown, and none of the studies referred to phosphoric acid or any kind of acid exp osure as a cause. The court noted that the literature did not support Gershwin’s conclusions with the same degree of certainty that he professed. The court stated that “the cutting edge of medic ine is simply not the standard for a courtroom. In applying MRE 702, I just don’t find his testimon y reliable enough to allow it to go to the jury. So I’m going to grant the motion.”

Plaintiffs’ counsel questioned the court regarding the possibi lity of a Daubert 1 hearing. The court stated that it would not preclude a hearing, but it w as doubtful whether plaintiffs would be able to prevail. The c ourt specifically stated that t here was sufficient time for such a hearing to take place and even stated that it would make accomm odations to allow for Gershwin to testify by video. P laintiffs did not pursue a hearing.

Plaintiffs now contend that the trial court erred in granting defendants’ motion in limine. This Court reviews for abuse of discretion a trial court’s deci sion whether to admit evidence. Chapin v A & L Parts
, Inc
, 274 Mich App 122, 126; 732 NW2d 578 (2007).

MRE 702 provides:

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 provides:

1 Daubert v Merrell Dow Pharmaceuticals
, Inc , 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).-3- (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 peer review publication.

(c) The existence and maintenance of generally accepted stand ards 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 basis.

(e) The degree to which the opi nion and its basis are general ly 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 basis to reach the type of op inion being proffered.

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

(2) A novel methodology or form of scientific evidence may be admitted into evidence only if its propone nt establishes that it has ach ieved general scientific acceptanc e among impartial and disinterested experts in the field.

(3) In an action alleging medical malpractice, the provisions of this section are in addition to, and do not otherwise affect, the cr iteria for expert testimony provided in section 2169.

In Chapin , 274 Mich App at 133, the Court recognized the reliance of the expert witness on the “Sir Bradford Hill” methodology for determining causatio n.
The Sir Bradford Hill methodology, as explained by Dr. Lemen, contains nine criteria, all of which should be considered when determini ng causation. “Strength of association” means a sufficiently strong associati on between a substance and an effect can permit conclusions without statisti cal epidemiologic data. For example, no epidemiological studies were needed to s how that cyanide-4- gas kills film-recovery plant w orkers when they are exposed to it. Dr. Lemen explained that epidemiological e vidence “is clearly the best th at we’ve got” and “it leaves little doubt” when it exists, but it was not needed to draw conclusions on which to base preventive actions. “Temporality” means that cause must precede effect or there can be no association. “Biologic gradi ent,” or “response gradient,” refers to basic toxicological knowledge that more ex posure increases the risk of disease, as asbestos does. “Consistency” means a g iven effect must “be observed repeatedly in multiple studies,” preferably differ ent kinds of studies, and “specificity” means an agent always causes the same kind or kinds of disease. It is undisputed that asbestos c onsistently causes the same few diseases. “Biological plausibility” looks at whether a theory of causatio n comports with other known facts, such as whether an agent can actually affect a certain body part, and asbestos fits this criterion. “Coherence” is similar to biological plausibility in that it checks for inconsistency with other the ories of causation. Dr. Lemen noted that the animal s tudies and the biological stud ies on asbestos fit together. “Experimental evidence” could include animal and lab oratory studies in the case of asbestos, and the experimental evidence also connec ted asbestos to the same diseases. It would, of course, be unethical to perform cl inical experiments on people by deliberately exposing them to asbestos to confirm its toxicity, no matter how probative such an experiment might be.

The final factor in the Sir Bradford Hill methodology is “anal ogy.” Dr. Lemen explained that, as applied to the circumstances of this c ase, “analogy” looks at whether automobile brake workers are actually exposed to enough of the agent under discussion to cause disease. Dr. Lemen again state d that there was no known safe exposure level to asbestos below which it would not cause mesothelioma, and studies exist showing that automobile brake w orkers are exposed to asbestos, thereby indicating a cause and effect rela tionship. On the basis of all of the foregoing fact ors, combined with the known asbestos exposure and “thousands of epidemiological studies and animal studies an d toxicological studies,” Dr. Lemen concluded that there was ample scientific e vidence to link mesothelioma to occupational exposure to asbestos-containing br ake products. Dr. Lemen further pointed out that none of the factors was disp ositive by itself, but the best way to determine causation was to consider them al l and to further consider reports issued by governments and health agencies or o rganizations. [ Id

. at 133-135.]

In place of an epidemiological study, plaintiffs primarily rel y on the Bradford Hill method to support their theory o f causation and to support thei r argument that Gershwin’s testimony was admissible. However , the trial court thoughtfull y considered the Bradford Hill method in reaching its conclusi ons and it carefully distinguish ed the Chapin case. The trial court noted that in Chapin , “the history with asbestos, asbestos causing these problems [ i.e., mesothelioma] was clearly well established. . . . [A]sbestos a ffects all individuals who are exposed to it in essentially the same way.” The only dispute i n Chapin concerned whether brake workers , in particular, would develop mesothelioma as a result of expo sure to asbestos-based brake products during their work. See id . at 135. The present case is fundamentally different because there are evidently no studies showing that phosphoric acid causes WG. Importantly,-5- Gershwin himself admitted that none of the litera ture he provided showed such c ausation. Under the circumstances, I simply cannot find that the trial court ab used its discretion by granting defendants’ motion in limine. “An abuse of discretion occurs w hen the trial court chooses an outcome falling outside the range of principled outcomes.” Edry v Adelman , 486 Mich 634, 639; 786 NW2d 567 (2010). The court’s d ecision was not outside the range of principled outcomes. I note that the Michigan Supreme Court “has implied that, while n ot dispositive, a lack of supporting literature is an important factor in determining the admissibility of expert witness testimony.” Id . at 640. The court did not abu se its discretion in essentiall y concluding that Gershwin’s testimony amounted to speculation.

It is at least conceivable that a more expansive hearing would have provided additional support for Gershwin’s theory, but plaintiffs failed to pursue a Daubert hearing even after being specifically invited to do so by the trial court.

I would affirm.

/s/ Patrick M. Meter