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

ESTATE OF DIANE M. SMITH, by WALTER R. 

SMITH, Personal Representative,

Plaintiff-Appellee,

UNPUBLISHED

February 18, 2020

v No. 343667

Genesee Circuit Court

KARSTEN H. FLIEGNER, M.D., GENESYS 

HEALTH SYSTEM, GENESYS REGIONAL 

MEDICAL CENTER, doing business as 

GENESYS HEART INSTITUTE, GENESYS 

PRACTICE PARTNERS, INC., doing business as 

GENESYS HEART INSTITUTE PHYSICIAN 

GROUP, and GENESYS AMBULATORY 

HEALTH SERVICES, INC., doing business as 

GENESYS HEART INSTITUTE PHYSICIAN 

GROUP,

LC No. 17-108694-NH

Defendants-Appellants.

Before: MURRAY, C.J., and SWARTZLE and CAMERON, JJ.

PER CURIAM.

In this medical-malpractice action arising out of the death of Diane M. Smith, defendants 

appeal by leave granted1the trial court’s order denying their motion for summary disposition under 

MCR 2.116(C)(10) (no genuine issue of material fact) and their alternative request for a Daubert

hearing. We vacate the order appealed and remand for further proceedings consistent with this 

opinion.

 

1 Estate of Diane M Smith v Fliegner, unpublished order of the Court of Appeals, entered 

November 13, 2018 (Docket No. 343667).
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I. BACKGROUND

This medical-malpractice action arises out of the 71-year-old decedent’s death several 

weeks after she underwent heart surgery. On May 4, 2015, defendant Dr. Karsten Fliegner 

performed the surgery, which involved “an aortic valve replacement and two vessel coronary 

artery bypass grafting.” It is undisputed that four drainage tubes (or “drains”) were placed at the 

end of the surgery. Two were larger chest tubes, and the other two were “smaller diameter,”

“bilateral Blake drains.” The two larger drains were removed from the decedent before she was 

discharged from the hospital on May 11, 2015. The Blake drains, however, were left in place at 

the time she was discharged. Physician’s Assistant Christopher Noth indicated that he decided to 

discharge the decedent with the Blake drains still in place, without consulting Dr. Fliegner, because 

of the amount of fluid that had been draining from them. At his deposition, plaintiff Walter R. 

Smith, who is the decedent’s widower, indicated that he saw the Blake drains for the first time 

shortly before the decedent was discharged. 

According to Noth, on May 22, 2015, the Blake drains were removed by a medical 

assistant. Five days later, the decedent was brought to the emergency room of defendant Genesys 

Regional Medical Center, complaining of “worsening shortness of breath, . . . lower extremity 

edema and chest heaviness,” among other things. The decedent’s blood pressure was low, and 

after she went into respiratory failure, she was intubated and placed on a ventilator. She was 

diagnosed with acute cardiogenic shock, severe aortic insufficiency, and pulmonary edema. In 

critical condition, she was transferred to Henry Ford Hospital by helicopter, while her condition 

continued to deteriorate. A cardiac surgeon determined that the decedent was not a candidate for 

further surgical intervention. After consulting with the medical staff about the decedent’s poor 

prognosis, her family expressed their desire that she not be resuscitated if she went into cardiac 

arrest. She subsequently did so and died. 

The day after the decedent’s death, Dr. Kanu Virani, the deputy-chief-medical examiner 

for the Oakland County Medical Examiner’s Office, performed an autopsy. Dr. Virani discovered 

a “large amount of pus around the midline chest surgical wound above and behind the sternum 

infiltrating the soft tissue.” Also, “[s]ections taken from the chest wall tissue near the surgical 

wound show[ed] acute inflammation and necrosis in skeletal muscles and adipose tissue.” Based 

on his observations, Dr. Virani concluded that the decedent had “died of post surgical wound 

infection,” with “[h]ypertensive and arteriosclerotic heart disease, and obesity . . . contributory.” 

Acting as personal representative of the decedent’s estate, plaintiff filed suit against 

defendants, alleging that they, or their agents or employees, had breached the applicable standard 

of care by failing to remove the drains from the decedent’s chest within a few days after her 

surgery. Plaintiff alleged that it had been “especially important to remove the drains from [the 

decedent] because she had a high risk of infection because of her prior history of diabetes, obesity 

and radiation to her chest as a result of . . . breast cancer.” Plaintiff also claimed that defendants’

alleged breach of the standard of care “substantially increased the risk of the development of an 

insidious post-operative infection,” that it did, in fact, cause the decedent to develop “septic shock 

resulting from mediastinitis” (i.e., an infection of the mediastinum), and that the decedent died as 

a result. The allegations in plaintiff’s complaint were supported by an affidavit of merit (AOM) 

executed by Dr. Louis E. Samuels, who indicated that he is “a board certified surgeon and thoracic 
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surgeon, with a specialty in cardiothoracic surgery, licensed to practice in the State of 

Pennsylvania.”

Following discovery, defendants moved for summary disposition under MCR 

2.116(C)(10) or, in the alternative, a Daubert hearing. Defendants argued that plaintiff’s expert 

witness regarding causation, Dr. Herbert Tanowitz, had admitted that the decedent’s mediastinitis 

either was seeded during the initial surgery or was more likely seeded at that time than at any later 

time. Therefore, defendants argued, plaintiffs could not carry their burden of demonstrating that 

defendants’ alleged breach of the standard of care—which allegedly occurred days after the 

surgery—had proximately caused the decedent’s mediastinitis and her ensuing death. In support, 

defendants cited Dr. Tanowitz’s deposition testimony that (1) “[s]ternal wound infections are 

usually implanted at the time of the surgery,” (2) “intraoperative wound contamination probably 

occurs in virtually all patients” who undergo “a sternotomy” (i.e., a medical procedure in which 

the patient’s sternum is opened to provide access to the heart or lungs), (3) infections like the 

decedent’s mediastinitis are “usually seeded at the time of surgery,” (4) the pleurae are not located 

within the mediastinum, (5) “there was no evidence of any infection or inflammation of the pleura 

here,” nor of any fistula (i.e., abnormal connection) between the pleurae and the mediastinum, and 

(6) Dr. Tanowitz did not “know the exact anatomy” of how “chest tubes” are generally placed, or 

of how they were placed in this case, because he does not personally perform such procedures.

In response, plaintiff argued that there was a genuine issue of material fact for resolution 

at trial about whether defendants’ failure to remove the Blake drains from the decedent within 48 

hours of surgery constituted a breach of the applicable standard of care that proximately caused 

her death. As evidentiary support, plaintiff cited (1) Dr. Samuels’s AOM, in which he averred that 

the standard of care is to remove such drains from a patient a few days after surgery, and that “[i]t 

was the presence of the drains, for weeks longer than recommended, that caused the infection 

which led to septic shock and [the decedent’s] death,” (2) a peer-reviewed article from 2017 that 

states, “In the existing literature, it is suggested that drainage tube removal be performed as soon

as possible, and always within 1 to 2 days after surgery,” (3) a peer-reviewed article from 1989 

indicating “that drains generally can be removed safely on the first postoperative day” and that 

removing them later “unnecessarily increases the risk of infection, mechanical irritation by the 

tubes and discomfort to the patient,” (4) a peer-reviewed article from 2013 that states, “Retention 

of drains longer than 48 hours in the operative site” is an “important modifiable risk factor[] for 

the development of organ/space sternal wound infections after cardiac surgery,” (5) a peerreviewed article from 2002 suggesting that physicians “[t]hink again about the value of 

prophylactic drains” and, if they elect “to continue using them, remove them after 24-48 hours,”

(6) an excerpt from chapter 11 of the Sabiston Textbook of Surgery (20th ed), which states, “Drains 

placed in incisions probably cause more infections than they prevent. . . . Considering . . . this risk, 

they should be used as little as possible and removed as soon as possible,” and (7) an affidavit in 

which Dr. Samuels indicated that his trial testimony concerning causation would be supported by 

the 2017 peer-reviewed article and the foregoing excerpt from Sabiston. Before oral argument, 

plaintiff also produced an affidavit, executed by Dr. Tanowitz in March 2018, that supported 

plaintiff’s causation theory more directly than had Dr. Tanowitz’s deposition testimony.

After entertaining oral argument, the trial court denied defendants’ motion for summary 

disposition and partially denied their request for a Daubert hearing, holding that the court would 
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entertain such a hearing—at trial—as to Dr. Samuels, but not as to Dr. Tanowitz. Defendants filed 

a motion for reconsideration, which the trial court denied. This appeal followed.

II. ANALYSIS

On appeal, defendants primarily argue that the trial court erred by denying their motion for

summary disposition under MCR 2.116(C)(10). In part, their argument rests on the assertion that 

the trial court should not have considered the expert opinions of Dr. Samuels and Dr. Tanowitz 

without first entertaining the requested Daubert hearings concerning those experts. We conclude

that, under the circumstances in this case, a Daubert hearing in the trial court is necessary before 

a proper determination concerning summary disposition is possible.2

We review de novo a trial court’s decision to grant or deny a motion for summary 

disposition to determine whether the moving party was entitled to judgment as a matter of law. 

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “A motion under MCR 

2.116(C)(10) tests the factual sufficiency of the complaint.” Id. at 120. When evaluating such a 

motion, a trial court considers the evidence submitted by the parties in the light most favorable to 

the party opposing the motion. Id. Where the proffered evidence fails to establish a genuine issue 

regarding any material fact, the moving party is entitled to judgment as a matter of law. Id.

Regarding a motion under MCR 2.116, the moving party bears the initial burden of 

production, which may be satisfied in one of two ways. Quinto v Cross & Peters Co, 451 Mich 

358, 361; 547 NW2d 314 (1996). “First, the moving party may submit affirmative evidence that 

negates an essential element of the nonmoving party’s claim. Second, the moving party may 

demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an 

essential element of the nonmoving party’s claim.” Id. at 362 (cleaned up). Once the moving 

party satisfies its burden in one of those two ways, “[t]he burden then shifts to the opposing party 

to establish that a genuine issue of disputed fact exists.” Id. 

“In a medical malpractice case, the plaintiff bears the burden of proving (1) the applicable 

standard of care, (2) a breach of that standard by the defendant, (3) an injury, and (4) proximate 

causation between the alleged breach of duty and the injury.” Rock v Crocker, 499 Mich 247, 255; 

884 NW2d 227 (2016). At issue here are the first two elements, along with the fourth, and as a 

general rule, “[e]xpert testimony is required in medical malpractice cases to establish the 

applicable standard of care and to demonstrate that the defendant somehow breached that 

standard.” Birmingham v Vance, 204 Mich App 418, 421; 516 NW2d 95 (1994). 

 

2 Although this Court previously granted plaintiff’s motion to expand the record to include two 

affidavits executed by Dr. Virani, Estate of Diane M Smith v Fliegner, unpublished order of the 

Court of Appeals, entered April 8, 2019 (Docket No. 343667), those affidavits are not properly 

considered in our review here because they were not presented to the trial court before it ruled 

concerning summary disposition. See Barnard Mfg Co, Inc v Gates Performance Engineering, 

Inc, 285 Mich App 362, 380; 775 NW2d 618 (2009). Accord Innovative Adult Foster Care, Inc v 

Ragin, 285 Mich App 466, 474 n 6; 776 NW2d 398 (2009); Peña v Ingham Co Rd Comm, 255 

Mich App 299, 313 n 4; 660 NW2d 351 (2003).
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We conclude that the trial court erred by failing to consider and decide whether the 

challenged expert testimony was substantively admissible before considering it for purposes of 

summary disposition under MCR 2.116(C)(10). Under MCR 2.116(G)(6), “[a]ffidavits, 

depositions . . . and documentary evidence offered in support of or in opposition to a motion based 

on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance 

would be admissible as evidence to establish or deny the grounds stated in the motion.” The 

reviewing court “should evaluate a motion for summary disposition under MCR 2.116(C)(10) by 

considering the substantively admissible evidence actually proffered.” Maiden, 461 Mich at 121 

(emphasis added).

MCL 600.2955 provides:

(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.

(2) A novel methodology or form of scientific evidence may be admitted 

into evidence only if its proponent establishes that it has achieved general scientific 

acceptance among impartial and disinterested experts in the field.

Additionally, MRE 702 provides:

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 
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(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.

As a general rule, “there is no requirement that an expert’s qualifications and methods be 

incorporated into an affidavit submitted in support of, or opposition to, a motion for summary 

disposition. Rather, the content of the affidavits must be admissible in substance, not form.” 

Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). Trial courts, however, 

have a “gatekeeping obligation” under MRE 702, which obliges them “to review all expert opinion 

testimony” for admissibility under that rule. Craig v Oakwood Hosp, 471 Mich 67, 82; 684 NW2d 

296 (2004). “This gatekeeper role applies to all stages of expert analysis. MRE 702 mandates a 

searching inquiry, not just of the data underlying expert testimony, but also of the manner in which 

the expert interprets and extrapolates from those data.” Gilbert v DaimlerChrysler Corp, 470 Mich 

749, 782; 685 NW2d 391 (2004). Furthermore, “[c]areful vetting of all aspects of expert testimony 

is especially important when an expert provides testimony about causation.” Id. “While a party 

may waive any claim of error by failing to call this gatekeeping obligation to the court’s attention, 

the court must evaluate expert testimony under MRE 702 once that issue is raised.” Craig, 471 

Mich at 82. Moreover, a party need not wait until trial to raise such a challenge; rather, the issue 

is properly raised at summary disposition. See, e.g., Elher v Misra, 499 Mich 11, 14; 878 NW2d 

790 (2016). A party relying on expert-opinion testimony to survive summary disposition bears 

the burden of demonstrating that such testimony will be admissible at trial, under MRE 702, before 

it can be properly considered for purposes of summary disposition. Amorello v Monsanto Corp, 

186 Mich App 324, 331-332; 463 NW2d 487 (1990).

In this case, defendants raised a challenge under MRE 702 to the causation and standardof-care opinions offered by two of plaintiffs’ medical experts: Dr. Samuels and Dr. Tanowitz. 

After correctly recognizing that, in the face of such a challenge, the trial court was “compelled to 

have a Daubert hearing,” the trial court nevertheless held that it would only entertain one with 

regard to Dr. Samuels—refusing to permit a Daubert hearing as to Dr. Tanowitz. Moreover, the 

trial court ruled on the motion for summary disposition before conducting the requested Daubert

hearing, ruling that it would conduct that hearing during the trial, immediately before Dr. Samuels 

testified. 

By so ruling, the trial court disregarded its gatekeeping obligation under MRE 702, 

considering the disputed expert testimony to be substantively admissible for purposes of summary 

disposition without first determining whether it would, in fact, be admissible at trial under MRE 

702. Indeed, the trial court abdicated its gatekeeping role concerning Dr. Tanowitz altogether, 

holding that it would not consider the scientific reliability of his opinion testimony even at trial. 

This is particularly concerning given that, when Dr. Tanowitz was deposed, he admitted that he 

did not “know the exact anatomy” of how “chest tubes” are generally placed, or how the Blake 

drains at issue here were placed, because he does not personally perform such procedures. In any 

event, by basing its decision concerning summary disposition on challenged expert testimony that 

may prove to be substantively inadmissible following a Daubert hearing, the trial court erred. 

Therefore, we vacate the order appealed and remand for further proceedings consistent 

with this opinion. On remand, the trial court shall (1) permit plaintiff an opportunity to name a 

new expert or experts to take the place of Dr. Tanowitz, who died during the pendency of this 
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appeal; (2) afford the parties an opportunity to conduct discovery concerning any such new expert 

or experts; (3) hold a Daubert hearing with regard to all expert opinions that the parties may elect 

to challenge on remand under MRE 702; and (4) after ruling on the Daubert matter, reconsider the

summary disposition issue, permitting the parties to file new briefs in light of whether the disputed 

expert testimony is deemed to be admissible under MRE 702. 

Vacated and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction.

/s/ Christopher M. Murray

/s/ Brock A. Swartzle

/s/ Thomas C. Cameron