If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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

CHRISTOPHER WEIR and DENISE WEIR,

Plaintiffs-Appellants,

UNPUBLISHED

August 11, 2022

v No. 357334

St. Clair Circuit Court

MCLAREN PORT HURON, PHYSICIAN 

HEALTHCARE NETWORK, PC, and DR. KAREN 

MCFARLANE,

LC No. 20-000007-NH

Defendants-Appellees.

Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.

PER CURIAM.

Plaintiffs appeal as of right the opinion and order granting summary disposition in favor of 

defendants, McLaren Port Huron (McLaren), Physician Healthcare Network PC (PHN), and 

Dr. Karen McFarlane (defendant). We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

Plaintiffs filed this action alleging medical malpractice was committed when defendant 

performed a laparoscopic cholecystectomy (LC) or gallbladder surgery on plaintiff but allegedly 

clipped the common bile duct.1 Specifically, plaintiff asserted that defendant performed his 

appendectomy on June 6, 2017, and he remained hospitalized through June 13, 2017. At his follow 

up appointment with defendant on June 22, 2017, plaintiff complained of pain, and imaging studies 

revealed a large gallstone. Defendant recommended an LC. After receiving clearance from 

plaintiff’s pulmonologist, defendant performed the LC on July 10, 2017, but it was alleged that 

she negligently transected the common bile duct during the procedure. As a result of this injury, 

 

1 Because plaintiff Christopher Wier was the patient treated by surgeon defendant Dr. McFarlane 

and the claim of malpractice arises from this patient-physician relationship, the singular plaintiff 

refers to Christopher Wier and the singular defendant to Dr. McFarlane. McLaren is the hospital 

where the procedure was performed, and PHN is defendant’s professional practice.
-2-

plaintiff was transferred to Henry Ford Hospital where another doctor constructed a repair 

procedure. Plaintiff, however, alleged that he continued to experience infection and pain 

purportedly because of defendant’s alleged breach of the standard of care by transecting the 

common bile duct. With the complaint, plaintiffs submitted the affidavit of merit of Dr. Michael 

S. Drew.

Defendant and PHN moved for summary disposition under MCR 2.116(C)(10), contending 

that the opinion by plaintiffs’ sole standard of care expert, Dr. Drew, was inadmissible.2 Because 

the breach of the standard of care was not obvious to a layperson, defendants alleged that expert 

testimony was required. In his testimony, Dr. Drew opined that the clipping of the common bile 

duct during the LC by defendant constituted a breach of the standard of care. However, defendants 

asserted that this opinion was premised on Dr. Drew’s own personal belief and did not reflect 

general acceptance in the medical community or find support in peer-reviewed literature. 

Additionally, the opinion was contrary to medical literature presented by defendants. Plaintiffs 

had the burden of demonstrating that the evidence was relevant and admissible. In Elher v Misra, 

499 Mich 11; 878 NW2d 790 (2016), our Supreme Court addressed the identical standard of care 

opinion in the context of the performance of an LC and the clipping of the common bile duct and 

rejected it. Because Dr. Drew’s standard of care opinion was inadmissible under MRE 702 and 

MCL 600.2955 and plaintiffs were left without expert testimony to support their medical 

malpractice action, defendants allegedly were entitled to summary disposition.3 Alternatively, if 

the trial court needed additional information on the issue, defendants requested a Daubert hearing.4

Plaintiffs filed a response in opposition to the defense motion for summary disposition. 

Plaintiffs alleged that Dr. Drew testified that a surgeon had to perform three acts to safely remove 

a gallbladder: (1) clear the hepatocystic triangle (the entity formed by the cystic duct, the common 

hepatic duct, and the inferior edge of the liver) from the fat and fibrous tissue; (2) separate the 

lower portion of the gallbladder from the liver to expose the cystic plate; and (3) visualize the only 

two structures entering the gallbladder, the cystic duct and the cystic artery. If these acts were 

followed, Dr. Drew concluded that it was medically impossible for the surgeon to clip, cut, or 

otherwise injure any other structure, such as the common bile duct. Furthermore, Dr. Drew’s 

opinion was purportedly supported by medical literature, specifically, the three acts to safely 

perform an LC were known as the critical view of safety (CVS) and were published in the Journal 

 

2 Defendant McLaren filed a pleading joining in the motion for summary disposition. Although 

McLaren merely joined in the motion, it attached the affidavits from doctors filed in the case of 

Elher v Misra, 499 Mich 11; 878 NW2d 790 (2016), which addressed the same issue.

3 With the motion, defendants submitted Dr. Drew’s deposition testimony, the article entitled 

Causes and Prevention of Laparoscopic Bile Duct Injuries, Annals of Surgery, Vol 237, No. 4, 

460-469 by Dr. Lawrence W. Way, and an affidavit by defense expert Dr. John Webber, opining 

that Dr. Drew’s opinion regarding the breach of the standard of care was not generally accepted 

by the board-certified general surgery community.

4 Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 

(1993).
-3-

of the American College of Surgeons. Plaintiffs contended that two other articles supported 

Dr. Drew’s position. Therefore, his expert opinion met the threshold requirements of MRE 702 

and MCL 600.2955. Plaintiffs submitted that the Elher decision as cited by defendants was 

distinguishable, and the competing opinions offered by the defense medical experts presented 

questions of credibility and reliability for resolution by the trier of fact.5

Defendants filed a reply brief. It was asserted that plaintiffs misconstrued the testimony 

by Dr. Drew. Specifically, defendants alleged that Dr. Drew never testified that it was a breach of 

the standard of care to fail to employ the CVS during the LC. Additionally, the articles cited by 

plaintiffs merely explained the rationale for the CVS. When defense counsel questioned Dr. Drew 

about the article Critical View of Safety, Why it is Not the Only Method of Ductal Identification 

with the Standard of Care in Laparoscopic Cholecystectomy by Dr. Strasberg, Dr. Drew answered 

that he had not heard of it or read it. More importantly, in his deposition, Dr. Drew admitted that 

the infundibular approach used by defendant during plaintiff’s surgery complied with the standard 

of care. Further, Dr. Drew acknowledged that use of the CVS procedure did not preclude 

transaction of the common bile duct. In fact, Dr. Drew transacted the common bile duct when he 

performed surgery using the CVS method. Defendants submitted that this case was 

indistinguishable from the Elher decision, and therefore, summary disposition was appropriate in 

defendants’ favor. 6

Following oral argument, the trial court issued its opinion and order granting summary 

disposition in favor of defendants. After summarizing the parties’ arguments, the trial court stated:

The facts of this case are very similar to Elher. The Michigan Supreme 

Court in Elher found that the circuit court did not abuse its discretion in excluding 

an expert’s standard of care opinion when that opinion is based merely on the 

expert’s background and experience and without supporting medical literature. 

This is especially true when the defense presents a peer-reviewed article which 

states the opposite of that expert’s opinion. In Elher and in the current case, 

Defendants have put forward the peer-reviewed article by Dr. Way in which 

Dr. Way concluded after analyzing 252 operations, that 97% of the injuries in 

laparoscopic cholecystectomies occurred because of misperception and that such 

misperception errors do not constitute negligence. The plaintiff in Elher failed to 

provide any peer-reviewed medical literature that would contest the Dr. Way 

article. For Plaintiffs in this current case, the question becomes whether they have 

provided any supporting medical literature which corroborates Dr. Drew’s opinion 

 

5 With the response, plaintiffs submitted medical articles entitled Strategies for Minimizing Bile 

Duct Injuries – Adopting A Universal Culture of Safety in Cholecystectomy; Rationale and Use of 

the Critical View of Safety in Laparoscopic Cholecystectomy; and An Analysis of the Problem of 

Biliary Injury During Laparoscopic Cholecystectomy; as well as Dr. Drew’s deposition testimony; 

Dr. Drew’s Affidavit of Merit; and defendant’s deposition.

6 Defendants also moved for summary disposition of the contention that defendant should have 

ordered a hepatobiliary iminodiacetic acid (HIDA) Scan, and the trial court granted the motion. 

The HIDA Scan ruling is not raised on appeal, and we do not address its merits.
-4-

that Dr. McFarlane’s clipping of the common bile duct by failing to properly 

identify the common bile duct is a breach of the standard of care, if not, then the 

current case is exactly on point with Elher.

Dr. Drew is clear in his deposition that he believes the Critical View of 

Safety (CVS) method is the best and safest way to perform a laparoscopic 

cholecystectomy. He further stated that in his opinion, if the CVS had been utilized 

in this case, the injury to Plaintiff would not have occurred (Dr. Drew deposition at 

page 36). Dr. McFarlane used the infundibular approach. Dr. Drew admitted in his 

deposition (page 72) that it is within the standard of care to use the infundibular 

approach but if the infundibular approach is done correctly, this injury would not 

occur. At this point in his deposition, Dr. Drew stated that whenever there is a 

clipping of the common bile duct using the infundibular approach, it means it was 

done incorrectly (page 77). Dr. Drew was asked if there was any literature that 

supported this opinion and he stated that he was not aware of any (page 79).

This case is directly on point with Elher. Dr. Drew’s opinion is almost 

exactly the same as Dr. Priebe’s in Elher. Plaintiffs have the exact same issue as 

the plaintiffs in Elher, in that, there is no medical literature to support the opinion 

that it is always a breach of the standard of care to clip the common bile duct. 

Defendants in Elher and in the current case have provided peer-reviewed medical 

literature which states that it is not negligence to clip the common bile duct due to 

misperception.

Dr. Drew and Plaintiff have provided three articles which allegedly support 

his standard of care opinions and it is argued that these articles distinguish 

Plaintiff’s case from Elher. The articles that Plaintiff has provided support the 

opinion of Dr. Drew that the CVS method is a safer way of performing this surgery 

and can decrease the chances of bile duct injuries. However, even if there is support 

for the CVS method being a safer way of performing this surgery, it does not mean 

that Dr. McFarlane breached the standard of care. Dr. Drew admitted that using the 

infundibular approach is within the standard of care. Dr. Drew provides no medical

literature to support the opinion that it is a breach of the standard of care to clip the 

common bile duct due to misperception while using the infundibular approach. 

Defendants have provided the Dr. Way article which is peer-reviewed and used in 

Elher to support the opinion that it is not negligence to clip the common bile duct 

due to misperception.

Therefore, as in Elher, Dr. Drew’s standard of care opinion that it is always 

a breach of the standard of care to clip the common bile duct in the performance of 

a laparoscopic cholecystectomy absent severe inflammation or tumor is 

inadmissible as that opinion is only based on Dr. Drew’s own background and 

experience and is not supported by any peer-reviewed medical literature. Further, 

there is no evidence that this opinion is generally accepted within the relevant 

expert community. Dr. Drew’s opinion that the CVS method is a safer way of 

performing this surgery is supported by medical literature but does not support the 

conclusion that Dr. McFarlane was negligent or breached the standard of care. The 
-5-

infundibular approach used by Dr. McFarlane is within the standard of care and 

Defendants have provided peer-reviewed medical literature, which has not been 

rebutted or contradicted by Plaintiff, that clipping the common bile duct due to 

misperception is not negligence.

After concluding that the testimony of plaintiffs’ sole standard of care expert was inadmissible, 

the trial court granted defendants’ motion for summary disposition.

Plaintiffs moved for reconsideration, and the trial court issued an opinion and order 

denying reconsideration. The trial court first noted that it relied principally upon the Elher decision 

to grant defendants’ motion, but the Elher decision was not even addressed in plaintiffs’ motion 

for reconsideration. Therefore, the trial court concluded that plaintiffs failed to demonstrate a 

palpable error. Nonetheless, the trial court then stated:

After oral argument on Defendant’s [sic] Motion for Summary Disposition, 

Plaintiff submitted an affidavit by Dr. Drew that attempts to clarify what his 

standard of care opinion is. His carefully drafted attempt of clarification arguably 

conflicts with his deposition testimony. This affidavit highlights a portion of 

Dr. Drew’s deposition testimony where he states “there are situations where you 

could injure a common duct where it wouldn’t be a deviation, but putting your clip 

across it and misidentifying it is a deviation.” However, in this affidavit Dr. Drew 

also states that “The misidentification occurred as Dr. McFarlane failed to obtain 

the critical view of safety . . . .” Therefore, this attempt by Plaintiff to characterize 

the standard of care opinion as “misidentifying the organs of the biliary tree” is just 

another way of stating that it was an error not to use the CVS method. The standard 

of care does not require the use of the CVS method as Dr. Drew himself stated.

Plaintiff then attempts to argue that the reason that there is no scientific 

literature supporting the opinion that it is a breach of the standard of care to 

misidentify the structures of the biliary tree or use the CVS method is because the 

issue is so obvious that such an article would not be written. Plaintiff cites Garcia 

v. West Shore Med. Ctr., 2015 Mich. App. LEXIS 1433 [7]as authority for his 

position that this court committed palpable error. However, Elher, a Michigan 

Supreme Court case that involves the same procedure, injury, and opinion is the 

controlling authority, not Garcia, an unpublished case involving a different medical 

procedure and opinion. In Garcia, the medical expert whose opinion was at issue 

gave a “case-specific causation theory” and the Court of Appeals found that 

because this theory was so narrow, specific, and dangerous to replicate, there is no 

way it could have been subject to scientific testing and replication. This is not the 

case with Dr. Drew’s opinion. Defendants have put forward a peer-reviewed study 

by Dr. Way which contradicts Dr. Drew’s opinion. Plaintiff has provided no 

literature which supports the relevant standard of care opinion in this case. This 

court is not weighing the credibility of the experts as Plaintiff suggests, but simply 

 

7 Estate of Beverly Kay Garcia v West Shore Medical Ctr, unpublished per curiam opinion of the 

Court of Appeals, issued July 21, 2015 (Docket No. 320781).
-6-

acknowledging that this contradictory study exists, as did the Michigan Supreme 

Court in Elher.

From these decisions, plaintiffs appeal.

II. STANDARDS OF REVIEW

A trial court’s ruling on a motion for summary disposition is reviewed de novo. Houston 

v Mint Group, LLC, 335 Mich App 545, 557; 968 NW2d 9 (2021). Summary disposition is 

appropriate pursuant to MCR 2.116(C)(10) where there is “no genuine issue as to any material 

fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” 

MCR 2.116(C)(10). When reviewing a motion for summary disposition challenged under 

MCR 2.116(C)(10), the court considers the affidavits, pleadings, depositions, admissions, and 

other admissible documentary evidence then filed in the action or submitted by the parties in the 

light most favorable to the nonmoving party. MCR 2.116(G)(4), (G)(5); Buhl v City of Oak Park, 

507 Mich 236, 242; 968 NW2d 348 (2021).

The trial court’s decision to admit evidence is reviewed for an abuse of discretion. Sabbagh 

v Hamilton Psychological Servs, PLC, 329 Mich App 324, 355; 941 NW2d 685 (2019). An abuse 

of discretion occurs when the trial court selects an outcome that falls outside the range of 

reasonable and principled outcomes. Id. at 355-356.

III. ANALYSIS

Plaintiffs contend that the trial court erred by excluding the testimony of Dr. Drew and 

granting summary disposition in favor of defendants. We disagree.

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

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

between the alleged breach and the injury.” Wischmeyer v Schanz, 449 Mich 469, 484; 536 NW2d 

760 (1995). For a claim of medical malpractice, expert testimony is required to establish the 

applicable standard of care and a breach of that standard. Kalaj v Khan, 295 Mich App 420, 429; 

820 NW2d 223 (2012). Further, expert testimony is necessary to establish causation. Teal v 

Prasad, 283 Mich App 384, 394; 772 NW2d 57 (2009). An expert opinion cannot be premised on 

hypothetical situations to demonstrate a legitimate causal connection between a defect and an 

injury. Id. An expert must support his testimony with facts in evidence. Id. at 395.

MRE 702 addresses testimony by experts and 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 (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.
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MCL 600.2955 also governs admission of scientific or expert opinion evidence and 

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.

(3) In an action alleging medical malpractice, the provisions of this section are in 

addition to, and do not otherwise affect, the criteria for expert testimony provided 

in section 2169.[8]

 

8 MCL 600.2169 addresses that the person providing expert testimony must be a licensed health 

professional, and if a specialty is involved, must be board-certified in the same specialty as the 

alleged tortfeasor. The parties do not challenge MCL 600.2169 in this appeal.
-8-

The proponent of evidence bears the burden of establishing the relevance and admissibility. 

Gilbert v Daimler Chrysler Corp, 470 Mich 749, 781; 685 NW2d 391 (2004). The court serves 

as the gatekeeper of the admission of evidence, and this 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. Thus, it is insufficient for the proponent of expert opinion merely 

to show that the opinion rests on data viewed as legitimate in the context of a 

particular area of expertise (such as medicine). The proponent must also show that 

any opinion based on those data expresses conclusions reached through reliable 

principles and methodology.

Careful vetting of all aspects of expert testimony is especially important 

when an expert provides testimony about causation. [Id. at 782.]

In Elher, the plaintiff underwent an LC performed by the defendant, Dr. Dwijen Misra, Jr. 

Before the surgery, the defendant discussed the risks and the benefits of the surgery, and the 

plaintiff signed the consent form. The consent form specifically apprised the plaintiff of the risk 

of injury to the common bile duct. During the LC, the defendant inadvertently clipped the common 

bile duct that extended from the plaintiff’s liver. Consequently, the plaintiff was required to 

undergo emergency surgery to repair the duct to allow bile to drain from the liver. The defendant 

attributed the clipping to the fact that the “view from the laparoscope is not optimal and not 

recognized as optimal and illusions can be created” that cause the common bile duct to be clipped. 

The defendant estimated that the complication occurred between .5 and 2% of all laparoscopic 

gallbladder surgeries. Elher, 499 Mich at 14-15.

The plaintiff filed a medical malpractice action alleging that the defendant breached the 

standard of care by clipping the common bile duct and offered the expert testimony of Dr. Paul 

Priebe in support. Dr. Priebe, a board-certified general surgeon and professor, opined that it was 

“malpractice to injure the common bile duct during a laparoscopic cholecystectomy, absent 

extensive inflammation or scarring.” However, when pressed, Dr. Priebe could not provide any 

supporting authority for his position. Specifically, he could not proffer any colleague to support 

his position or medical literature. Consequently, the defendants moved for summary disposition, 

asserting that Dr. Priebe’s opinion could not satisfy MRE 702 and MCL 600.2955 because the 

opinion was unreliable. The plaintiff asserted that expert testimony was not required because the 

negligence by the defendant was obvious to a layperson, and nonetheless, the opinion was reliable 

under MCL 600.2955. The trial court granted the motion, concluding that Dr. Priebe merely 

addressed his experience and background, but failed to show that his opinion and its basis was 

subjected to scientific testing and replication, peer-reviewed publications, and general acceptance 

in the relevant expert community. Dr. Priebe admitted that there was no authority to support his 

standard of care opinion, he was unaware if anyone agreed with his opinion, and he could not 

substantiate his opinion with medical literature. A majority of the Court of Appeals reversed the 

trial court. Id. at 17-19.

Our Supreme Court reversed the Court of Appeals’ decision and reinstated the trial court’s 

decision. After examining the evidentiary standard for admission, the Court noted that a lack of 

supporting medical literature was not controlling but was an important factor in determining the 
-9-

admissibility of expert witness testimony. That is, it was generally insufficient to simply rely on 

an expert’s experience and background to submit that the opinion was reliable and admissible. Id. 

at 23. The Court stated:

At the outset, we reject plaintiff’s contention that this is a case in which the 

breach of the standard of care is so obvious to a layperson that no expert testimony 

is required. Priebe himself conceded that some professionals believe that clipping 

the common bile duct, absent extensive scarring or inflammation, is not necessarily 

a breach of the standard of care. Accordingly, expert testimony was required to 

prove the applicable standard of care and a breach of that standard of care in this 

case.

There is no doubt that Priebe, plaintiff’s sole expert, regarding the standard 

of care, was qualified to testify as an expert based on his extensive experience. On 

the basis of this experience, he opined that, absent extensive scarring or 

inflammation, it is virtually always a breach of the standard of care to clip the 

common bile duct. In Priebe’s opinion, because there was no evidence of scarring 

or inflammation, [the defendant] breached the standard of care in this case. The 

question is whether this opinion was sufficiently reliable under the principles 

articulated in MRE 702 and by the Legislature in MCL 600.2955.

The Court of Appeals viewed this case as one in which the experts’ opinions 

were outside the realm of scientific methodology and in which Priebe’s opinion 

was reliable given his specialized experience and knowledge. The United States 

Supreme Court has recognized, as did the circuit court, that the Daubert factors 

may or may not be relevant in assessing reliability, depending on the nature of the 

issue, the expert’s expertise, and the subject of the expert’s testimony. And even 

though the United States Supreme Court has stated that, in some cases, “the relevant 

reliability concerns may focus upon personal knowledge or experience,” the Court 

has also stated that even in those cases, the Daubert factors can be helpful, even if 

all of the factors may not necessarily apply in determining the reliability of 

scientific testimony. Accordingly, it bears repeating that it is within a trial court’s 

discretion how to determine reliability.

We conclude that the circuit court did not abuse its discretion by relying on 

two of the factors listed in MCL 600.2955 and by concluding that Priebe’s opinion 

was not reliable. First, the Court of Appeals erred by concluding that the issue 

debated by the experts was not studied in peer-reviewed articles and, therefore, that 

the circuit court abused its discretion when it relied on this factor. The majority 

conceded that the article authored by Way was peer-reviewed. Way concluded, 

after analyzing 252 operations, that 97% of injuries occur because of misperception 

and that such misperception errors do not constitute negligence. Thus, the issue 

being debated has been studied. Plaintiff, however, failed to submit any peerreviewed medical literature in support of Priebe’s opinion, and Priebe admitted that 

he knew of none.
-10-

The circuit court also did not abuse its discretion by relying on the lack of 

evidence regarding the degree to which Priebe’s opinion was generally accepted. 

The Court of Appeals majority misinterpreted this factor. The majority concluded 

that there was no widespread acceptance of any standard-of-care statement. But 

this factor requires the court to consider “[t]he degree to which the opinion and its 

basis are generally accepted within the relevant expert community.” Priebe 

admitted that he knew of no one that shared his opinion. While the articles 

submitted by defendants may have suggested that “purists” in the field agreed with 

Priebe, there was still no indication regarding the degree of acceptance of his 

opinion. The majority conceded that there was no evidence regarding whether 

Priebe’s view had general acceptance within the relevant expert community. This 

was a relevant factor for the circuit court to consider.

We do, however, agree with the Court of Appeals majority that all the 

factors in MCL 600.2955 may not be relevant in every case. Indeed, we agree with 

the majority that the scientific testimony and replication factor does not fit the type 

of opinion at issue in this case. Therefore, the circuit court abused its discretion by 

relying on this factor. But this does not render the circuit court’s ultimate decision 

an abuse of discretion. Plaintiff merely pointed to Priebe’s background and 

experience in regard to the remaining factors, which is generally not sufficient to 

argue that an expert’s opinion is reliable. Priebe admitted that his opinion was 

based on his own beliefs, there was no medical literature supporting his opinion, 

and plaintiff failed to provide any other support for Priebe’s opinion.

The circuit court also did not abuse its discretion by concluding that Priebe’s 

testimony was deficient because it did not conform to MRE 702. We find this 

Court’s decision in Edry v Adelman [486 Mich 634; 786 NW2d 567 (2010)] to be 

instructive. In Edry, this Court concluded that an expert failed to meet the 

requirements of MRE 702 because his opinion “was not based on reliable principles 

or methods;” his opinion was contradicted by the opinion of the defendant’s expert 

and published literature on the subject that was admitted into evidence, which even 

he acknowledged as authoritative; and there was no literature supporting the 

testimony of plaintiff’s expert admitted into evidence. As in Edry, Priebe’s opinion 

“was not based on reliable principles or methods,” his opinion was contradicted by 

the opinion of defendant’s expert and published literature on the subject that was 

admitted into evidence, and there was no literature supporting the testimony of 

plaintiff’s expert admitted into evidence. Plaintiff failed to provide any support for 

Priebe’s opinion that would demonstrate that it had some basis in fact and that it 

was the result of reliable principles or methods. While peer-reviewed, published 

literature is not always necessary or sufficient to meet the requirements of 

MRE 702, the lack of supporting literature, combined with the lack of any other 

form of support, rendered Priebe’s opinion unreliable and inadmissible under 

MRE 702 . . . .

We hold that the circuit court did not abuse its discretion by concluding that 

Priebe’s background and experience were not sufficient to render his opinion 

reliable in this case when Priebe admitted that his opinion was based on his own 
-11-

beliefs, there was no evidence that his opinion was generally accepted within the 

relevant expert community, there was no peer-reviewed medical literature 

supporting his opinion, plaintiff failed to provide any other support for Priebe’s 

opinion, and defendants submitted contradictory peer-reviewed literature. As noted 

by the Court of Appeals dissent, the concern in relying on Priebe’s personal opinion 

is that Priebe may have held himself to a higher, or different, standard than that 

practiced by the medical community at large. This is particularly true where, as 

here, there is contradictory medical literature. [Elher, 499 Mich at 24-28.]

In the present case, Dr. Drew acknowledged that when receiving consent from patients to 

perform an LC, they were apprised that damage to the common bile duct was a possible 

complication. When asked if it was a risk of the procedure, he answered, “I think it’s a risk . . . . 

In my opinion, if it’s damaged, it’s because you did something wrong except in very special cases, 

but it’s an inherent risk of the procedure, yes.” Dr. Drew opined that a common bile duct injury 

could occur and still comply with the standard of care if there was a tumor or extremely inflamed 

gallbladder. However, those scenarios were distinct from placing a clip across the duct, clamping 

it, and cutting it. Thus, in his opinion, the clipping or transection of the common bile duct was 

always a breach of the standard of care, even if there was a shortened cystic duct. However, Dr. 

Drew would not be critical if there were two structures so close together they were “literally 

adherent to each other.” In summary, any time a clipping or transaction of the common bile duct 

occurred, Dr. Drew concluded it was a breach of the standard of care.

Dr. Drew knew that defendant testified about performing approximately 560 LC surgeries, 

this was her first bile duct injury, and he believed that she fell within the national average for 

percentage of injuries. Although Dr. Drew advocated for the performance of the CVS method in 

performing the LC surgery, he acknowledged that it was not the only approach that complied with 

the standard of care, but he opined that as the safest method, it should be the standard of care. 

Dr. Drew recognized that defendant performed the infundibular approach; this involved dividing 

the cystic duct and the cystic artery sequentially and mobilizing the gallbladder out of the liver 

bed. Nonetheless, even though the injury was rare, Dr. Drew opined that to avoid even this rare 

injury, the CVS procedure should have been used. When asked if the complication rate for 

common bile duct injury was solely caused by the failure to employ the CVS method, Dr. Drew 

answered, “They might be,” and “There’s no way of knowing that.” Nonetheless, he opined with 

“100 percent” certainty that this injury could have been avoided if the CVS was performed. 

Dr. Drew had not spoken to colleagues to receive input regarding his review or opinion of the case.

Dr. Drew acknowledged an article addressing guidelines for LC surgery. However, he 

could not comment on the statistics and whether application of CVS had any bearing on the 

complication rate. Dr. Drew was familiar with two articles by Dr. Strasberg, a recognized authority 

in the field. The CVS method notes that, when there is inflammation or other difficulty, CVS or 

removal of the bottom of the gallbladder from the liver bed helps to avoid transection or dissection 

of the common bile duct. After discussing an article by Dr. Strasberg, Dr. Drew ultimately testified

that the infundibular approach employed by defendant for plaintiff’s surgery was within the 

standard of care. Nonetheless, Dr. Drew stated, “The infundibular approach was used and it caused 

a problem. It would have been avoided by the use of the CVS, and . . . I don’t understand why 

that’s not the standard of care.” Moreover, Dr. Drew opined that defendant did not perform the 

infundibular approach correctly simply because there was an injury. However, Dr. Drew, although 
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insistent that the injury (a known complication or risk for LC) meant that the procedure was 

performed incorrectly and therefore breached the standard of care, could not identify any literature 

to support his point of view. Although Dr. Drew opined that the CVS method was the safest way 

to perform the LC, he acknowledged that he transected the common bile duct while using CVS 

and was sued for malpractice. Dr. Drew opined that he committed malpractice and settled the case 

because he breached the standard by injuring the bile duct. He acknowledged that there was a 

peer-reviewed study by Dr. Way that concluded visual perceptual illusion was the primary cause 

of error in LC cases, and misperception errors did not constitute negligence. Dr. Drew called the 

article controversial and was unaware that the article was deemed authoritative by the Michigan 

Supreme Court.

We recognize that Dr. Drew was an expert under MRE 702. In light of his years of practice 

as a surgeon, he had the requisite knowledge, skill, experience, training or education. However, 

to admit his opinion, Dr. Drew’s testimony had to be premised on sufficient facts or data, the 

testimony had to be the product of reliable principles and methods, and he had to apply the 

principles and methods reliably to the facts of the case. MRE 702. Although an experienced 

surgeon, Dr. Drew opined that the safest method to perform the LC was to use the CVS method, 

because it was the safest method it should be the standard of care, and he was 100 percent certain 

that if defendant had employed the CVS method, plaintiff’s injury would not have occurred. 

Despite Dr. Drew’s citation to articles that discussed the CVS method, these articles did not 

identify the CVS method as the sole standard of care. There was no definitive determination that 

CVS was the safest method, the medical literature failed to indicate that the safest method was the 

standard of care, and there was no determination that another methodology could not also deemed 

to be within the standard of care. Accordingly, Dr. Drew’s opinion did not demonstrate that it was 

the product of reliable principles and methods. MRE 702. Rather, Dr. Drew acknowledged that 

he could point to no scientific literature to support his position, and it was apparent that he offered 

his personal opinion that the transection of the common bile duct would not have occurred unless 

there was a breach of the standard of care. Finally, Dr. Drew opined that he was 100 percent 

certain that if defendant had employed the CVS method, a transaction of the common bile duct 

would not have occurred. Yet, Dr. Drew’s testimony on this point is belied by his acknowledgment 

that he performed an LC with the CVS method and clipped a common bile duct. Dr. Drew was 

sued for medical malpractice and settled the case. Thus, Dr. Drew’s testimony that the CVS 

method is the safest and essentially foolproof way to perform an LC is not mirrored in the peerreviewed articles and belied by his experience in applying the methodology. Furthermore, when 

asked to peruse the articles by Dr. Strasberg, Dr. Drew was forced to acknowledge that the 

literature reflected that the infundibular approach employed by defendant fell within the standard 

of care.

Moreover, Dr. Lawrence Way was the lead author of Causes and Prevention of 

Laparoscopic Bile Duct Injuries as published in the Annals of Surgery, Vol. 237, No. 4, 460-469. 

This article was cited as authority in the Elher decision. Dr. Way’s article did not conclude that 

bile duct injuries were the product of negligence. Rather, the article noted that training and 

anatomical structures created a misperception for surgeons.

In light of Dr. Drew’s testimony and medical articles, plaintiffs failed to establish that 

Dr. Drew’s testimony comported with MRE 702. Although Dr. Drew was a surgeon with years of 

experience, his opinions did not appear to be recognized by the scientific community and reflected 
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his own personal belief that if a common bile duct injury occurred, in the absence of a tumor or 

inflammation, it was the product of the breach of a standard of care and the failure to employ the 

CVS method.

With regard to the application of MCL 600.2955, consistent with the Elher Court, plaintiffs 

failed to demonstrate that Dr. Drew’s opinion was subjected to peer-reviewed literature and 

accepted within the medical community. Plaintiffs submit that the Elher decision is 

distinguishable because there was a complete lack of citation to medical literature, and plaintiffs 

submitted three articles addressing the safest method to perform the LC, known as the CVS 

method. Curiously, on appeal, plaintiffs submit and argue that the articles support Dr. Drew’s 

standard of care testimony. However, when questioned during his deposition, Dr. Drew could not 

identify in the articles that CVS was the standard of care and the preferred method by colleagues 

to perform the LC because of the reduction in common bile duct injuries. Rather, Dr. Drew 

acknowledged that there was no way to know if the CVS method lowered the bile duct injuries. 

The import given to the articles on appeal was not correlated by Dr. Drew in his testimony. Rather, 

Dr. Drew was forced to admit in his testimony that the infundibular approach used by defendant 

during the LC was within the standard of care.

To support a medical malpractice case, the plaintiff was required to prove: “(1) the 

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

causation between the alleged breach and the injury.” Wischmeyer, 449 Mich at 484. Plaintiffs

failed to demonstrate that the standard of care for LC surgery was the CVS method and that the 

failure to perform the CVS method constituted a breach of the standard of care. Accordingly, 

because Dr. Drew’s opinion testimony did not satisfy the criteria of MRE 702 and MCL 600.2955, 

the trial court properly granted defendants’ motion for summary disposition.

Affirmed.

/s/ Michael J. Riordan

/s/ Stephen L. Borrello

/s/ Anica Letica