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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**

VICTOR KHZOUZ and AMAL KHZOUZ,

Plaintiffs

- Appellees, UNPUBLISHED March 13, 2018

v No. 333901 Wayne Circuit Court STEPHEN MENDELSON, MD, and MENDELSON ORTHOPEDICS, PC, LC No. 14

- 009384

- NH

Defendants

- Appellants.

Before: M. J. K ELLY

, P .J., and J ANSEN and M ETER , JJ.

P ER C URIAM

.

In this medical malpractice case , defendants

, Stephen Mendelson, M.D., and his practice, Mendelson Orthopedics, P.C., appeal by leave granted 1 the trial court’s order granting partial summary disposition in favor of plaintiffs

, and denying defendants’ motion in limine to preclude certain expert testimony as scientifically unreliable. We reverse and remand for furt her proceedings consistent with this opinion

.

I. FACTUAL BACKGROU ND

This case arises out of post

- surgical treatment that plaintiff 2 received from defendant Dr.

Mendelson

, a board

- certified orthopedic surgeon

, foll owing arthroscopic knee surgery in August

2012. During the procedure, Dr. Mendelson inserted a “pain pump” in plaintiff’s knee. The parties dispute whether the pain pump was placed subcutaneously (i.e., under the skin) or intraarticularly (i.e., within the joint)

. Anesthesia (called bupivacaine) from the pump apparently managed plaintiff’s pain effectively following the surgery until the pump was remov ed . At that point, however, plaintiff’s pain increased dramatically. A subsequent MRI revealed that plaintiff

had lost a significant amount of cartilage in his knee , and plaintiff eventually sought treatment from a different physician

.

1 Victor Khzouz v Stephen Mendelson MD , unpublished order of the Court of Appeals, entered November 29, 2016 (Docket No. 333901).

2 References to plaintiff in the singular denote plaintiff Victor Khzouz.- 2

- P laintiff sued defendants for medical malpractice. He alleged that bupivacaine from the pain pump had caused a condition called c hondrolysis, causing the cartilage in plaintiff’s knee to rapidly deteriorate. Plaintiff further alleged that Dr. Mendelson’s use of the pain pump fell below the applicable standard of care.

D uring discovery , the parties deposed five experts. Defendants ’ experts included Dr. Mendelson, Dr. John Denzin

, and Dr. Roland Brandt. Plaintiff’s included Dr. Harish Hosalkar

and Dr. George Pappas.

Following discovery, the parties filed motions that essentially attacked the other side’s experts. Defendants fil ed a motion in limine seeking to preclude “unreliable” testimony of plaintiff’s experts, while plaintiff filed a motion for partial summary disposition, arguing that there was no genuine issue of material fact whether Dr. Mendelson breached the applicable standard of care by inserting the pain pump. In support of their respective motions, the parties presented several pieces of medical literature for the trial court’s consideration. The literature in question concerns pain pumps used following arthroscopi c shoulder surgery or intraarticularly, and it does not squarely address subcutaneous placement of a bupivacaine pain pump following arthroscopic knee surgery.

Ultimately, the trial court ruled in plaintiffs’ favor with regard to both their motion for

par tial summary disposition and defendants’ motion in limine challenging the reliability (and thus the admissibility) of the testimony of Dr. Pappas and Dr. Hosalkar. Plaintiffs sought and were granted interlocutory review in this Court.

II . STANDARDS OF R EVIEW

This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Heaton v Benton Constr Co , 286 Mich App 528, 531; 780 NW2d 618 (2009). The trial court granted plaintiffs partial summary disposition under MCR 2.116(C )(10).

A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ. [ Zaher v Miotke , 300 Mich App 132, 139

- 140; 832 NW2d 266 (2013) (quotations marks and citations omitted).]

“Circumstantial evidence can be sufficient to establish a genuine issue of material fact, but mere conjecture or speculation is insufficient.” McNeil l

- Marks v Midmichiga n Med Ctr

- Gratiot , 316 Mich App 1, 16; 891 NW2d 528 (2016)

. “This Court is liberal in finding genuine issues of

material fact.” Jimkoski v Shupe , 282 Mich App 1, 5; 763 NW2d 1 (2008).- 3

- On the other hand, this Court review s for an abuse of discretion the circuit court ’ s Daubert 3 de termination (i.e., its decision whether to exclude expert evide nce for lack of

scientific reliability )

. Elher v Misra , 499 Mich 11, 21; 878 NW2d 790 (2016). “ An abuse of

discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes,” and “[t]he admission or exclusion of evidence because of an erroneous interpretation of law is necessarily an abuse of discretion. ” Id

. “ We review de novo questions of law underlying evidentiary rulings , including the interpretati on of statutes and court rules.” Id

.

III . ANALYSIS

Defendants argue that the trial court erred in several distinct and yet closely interrelated

ways . They further argue that the trial court’s error s warrant reversal. We agre e.

“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, 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 t he defendant somehow breached that standard.” Birmingham v Vance , 204 Mich App 418, 421; 516 NW2d 95 (1994). 4 A defendant physician may be qualified to offer expert testimony, including expert testimony regarding the applicable

standard of care. Rice v Jaskolski , 412 Mich 206, 212; 313 NW2d 893 (1981).

For these purposes, “a ‘specialty’ is a particular branch of medicine or surgery in which one can potentially become board certified,” and “a ‘specialist’ is somebody who can potentially

become board certified. ” Woodard v Custer , 476 Mich 545, 561; 719 NW2d 842 (2006). Given

that Dr. Mendelson wa s board

- certified in orthopedic surgery at the time he utilized the pain pump at issue in this case, the partie s agree that he qualifies as an orthopedic specialist. Consequently, he is held to a different standard of care than a general practitioner. See MCL 600.2912a(1); Cox v Bd of Hosp Managers for City of Flint , 467 Mich 1, 17 n 17; 651 NW2d 356 (2002). The applicable standard is enumerated by MCL 600.2912a(1) , which provides, in pertinent part:

[I]n an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:

* * *

(b) The defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the

3 Daubert v Merrell Dow Pharm, Inc , 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).

4 Such expert testimony is unnecessary “when the lack of professional care is so manifest that it would be within the common knowledge and experience of the ordinary layman. . . .” Sullivan v

Russell , 417 Mich 398, 407; 338 NW2d 181 (1983) (quotation marks and citation omitted).- 4

- facilities available in the community or other facilities reasonably available under

the circumstances. . . .

Although this standard for specialists is sometimes referred to as a “national” standard of care,

see, e.g., Jalaba v Borovoy , 206 Mich App 17, 22; 520 NW2d 349 (1994), that is a misnomer,

Cox , 467 Mich at 17 n 17. As explained in Co x :

The term “national,” . . . is not an accurate description of the statutory standard of care for specialists. The plain language of subsection (b) states that the standard of care is that “within that specialty as reasonably applied in light of the facil ities available in the community or other facilities reasonably available under the circumstances.” Under the plain language of the statute, then, the standard of care for both general practitioners and specialists refers to the community. [ Id

. (citation omitted)

. ]

Turning to the facts of this case, we agree with defendants that the trial court’s analysis was erroneous in several fundamental ways. First, the trial court erred by failing to consider and decide whether the challenged testimony of plaintif fs’ experts was substantively admissible before considering it for purposes of summary disposition under MCR 2.116(C)(10). See MCR 2.116(G)(6); Maiden v Rozwood , 4 61 Mich 109, 121; 597 NW2d 817 (1999) (“ [t] he reviewing

court should evaluate a motion for s ummary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered”) (emphasis added). In other words, the trial court was incorrect when it reasoned that its summary disposition ruling

rendered defendants’ D aubert motion “moot ”. On the contrary, the substantive admissibility of such testimony was a key part of the summary disposition analysis

— one the trial court neglected. Further , “a question is not moot if it will continue to affect a [party] in some

coll ateral way,” In re Dodge Estate , 162 Mich App 573, 584; 413 NW2d 449 (1987), and

defendants’ Daubert challenge had implications extending beyond summary disposition; as a motion in limine, it was aimed at precluding admission of the challenged expert testimony at

trial

.

Second, the trial court applied an incorrect legal standard to determine the appli cable standard of care, erroneously relying on the pertinent model jury instruction, M Civ JI 30.01, 5

5 M Civ JI 30.01 provides:

When I use the words “professional negligence” or “malpractice” with respect to the defendant’s conduct, I mean the failure to do something which a [ name profession ] of ordinary learning, judgment or sk ill in [ this community or a similar one / [ name particular specialty ] ] would do, or the doing of something which a [ name profession / name particular specialty ] of ordinary learning, judgment or skill would not do, under the same or similar circumsta nces you find to exist in this case.

It is for you to decide, based upon the evidence, what the ordinary [ name profession / name particular specialty ] of ordinary learning, judgment or skill would do or would not do

under the same or similar circumstanc es.- 5

- rather than the language of the statute that sets forth the applicable standard of care for specialists, MCL 600.2912a(1)

. Although model jury instructio ns “ are intended to accurately state applicable law ,” they do not constitute legal authority. Moore v City of Detroit , 252 Mich App 384, 387; 652 NW2d 688 (2002) (emphasis added). Conversely , it is well

- settled that MCL 600.2912a(1) does authoritatively “ set [] forth the standards of care for general practitioners and specialists. ” Cox , 467 Mich at 16. Therefore, when considering the applicable standard of care for purposes of summary disposition, the trial court should have relied on the actual language of MCL 600.2912a(1) , not the model jury instruction’s attempt to paraphrase that statute for lay jurors.

Third, the trial court erred by determining that it could not consider medical literature as

Daubert evidence. “ Under MRE 702, it is generally not s ufficient 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). “[T] he whole point

of Daubert is that experts can’t spe culate. They need analytically sound bases for their opinions,

and it is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate. ” Id . at 642 n 6 (quotation marks, citations, and brackets omitted). “[W]hile not dispositive, a lack of supporting literature is an important factor in determining the admissibility of expert witness testimony.” Id . at 640. Likewise, as our Supreme Court has explained several times, pursuant to MCL 600.2955(1) a court must consider the peer

- reviewed medical literature cited by the parties when entertaining a Daubert challenge. Elher , 499 Mich at 28. Scholarly publications, peer

- reviewed studies, and FDA publications are all “examples of objective and

verifiable eviden ce[.]” Krohn v Home

- Owners Ins Co , 490 Mich 145, 178; 802 NW2d 281 (2011). By holding otherwise, the trial court erred. And because its error in that regard formed part of the foundation for its ruling concerning the reliability of the challenged testim ony (i.e., its admissibility under MRE 702 and MCL 600.2955(1) ), the resulting ruling was “necessarily an

abuse of discretion.” See Elher , 499 Mich at 21.

Nevertheless, the trial court’s several errors do not necessarily warrant reversal of its ruling re garding summary disposition. “This Court will not reverse a trial court’s order of summary disposition when the right result was reached for the wrong reason.” Forest Hills Coop v City of Ann Arbor , 305 Mich App 57 2, 615; 854 NW2d 172 (2014). Accordingl y, plenary de novo review is required to determine whether the trial court ultimately reached the correct result.

A. SUBSTANTIVE ADMISSIB ILITY OF THE CHALLEN GED EXPERT TESTIMONY

As explained in Rock , 499 Mich at 260, “[a] physician who testifies regard ing the standard of care at issue must satisfy the requirem ents of MCL 600.2169(1).” Pursuant to MCL 600.2169( 2 ) , when

determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate a ll of the following:

(a) The educational and professional training of the expert witness.

(b) The area of specialization of the expert witness.- 6

- (c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty.

(d) The relevancy of the expert witness’s testimony.

In the instant case, we agree with defendants that the trial court erred by considering Dr. Pappas’s standard

- of

- care testimony for purposes of summary dispositi on. Under MCL 600.2169(1) (a), an expert witness may only offer testimony regarding the applicable standard of care for a specialist if the proposed expert wa s board

- certified in the same specialty “ at the time

of the occurrence that is the basis for the c laim or action .” Rock , 499 Mich at 262. Aside from Dr. Pappas ’ s deposition transcript, plaintiffs cite no evidence regarding his qualifications as an expert. Although Dr. Pappas discussed orthopedic surgery at length during his deposition, he

was neithe r asked nor did he testify whether he was board

- certified in orthopedics or any other specialty, let alone whether he was board

- certified at the time the surgery in this case was performed. Accordingly, plaintiffs failed to establish that Dr. Pappas’s testimony concerning the applicable standard of care in this matter was substantively admissible, and it thus cannot be considered for purposes of this analy s is.

However we disagree with defendants’ contention that the trial court erred by considering

Dr. Hosalkar’s standard

- of

- care testimony for purposes of MCR 2.116(C)(10). To begin with, plaintiffs produced substantively admissible evidence establishing that Dr. Hosalkar was qualified under MCL 600.2169(1) . Specifically, they produced his deposition t estimony that he

was board

- certified in orthopedic surgery on the date in question and had devoted a majority of his professional time to the clinical practice of orthopedic surgery in the year preceding plaintiff’s surgery, practicing “mainly” orthopedics during that timeframe.

Furthermore, on this record we cannot conclude that Dr. Hosalkar’s testimony was substantively inadmissible under Daubert . In concert, MRE 702 and MCL 600.2955(1) “govern the inquiry into whether expert evidence is scientifically reliable.” Chapin v A & L Parts, Inc

, 274 Mich App 122, 127; 732 NW2d 578 (2007). 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 determi ne 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 prod uct of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

On the other hand, MCL 600.2955(1) provides, in pertinent part:

In an action . . . for injury to a person . . . , a scien tific 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 o pinion, which basis includes the facts, technique, methodology, and reasoning relied on by the expert, and shall consider all of the following factors:- 7

- (a) Whether the opinion and its basis have been subjected to scientific testing and replication.

(b) W hether 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 b asis 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.

“[A]ll the factors in MCL 600.2955 may not be relevant in every case.” Elher , 499 Mich at 27. Additionally, “t he trial court ’ s role as gatekeeper does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes. ” Chapin , 274 Mich App at 127. Rather, an expert opinion may be r eliable even if it “ is not shared by all others

in the field or

. . . there exists some conflicting evidence supporting and opposing the opinion [.]”

Id . Put differently, “ as long as the opinion is rationally derived from a sound foundation,” it is

admiss ible. Id . “Gaps or weaknesses in the witness’ expertise are a fit subject for cross

examination, and go to the weight of his testimony, not its admissibility.” Wischmeyer v Schanz

, 449 Mich 469, 480; 536 NW2d 760 (1995).

At root , defendants’ argument i s that because there is no medical literature directly supporting Dr. Hosalkar’s opinion, it is unreliable and thus inadmissible. T he parties spend a great deal of their respective briefs debating the substance of the medical literature, with both

sides i nexorably concluding that such literature supports their position. This ignores the fact that every expert deposed in this case opined that there was no authoritative medical literature that is directly on point. Moreover, defendants ignore the fact that while a lack of supporting literature “is an important factor,” it is not dispositive. See Elher , 499 Mich at 23. In this case, given the experts’ consensus that no authoritative literature exists in support of either side’s position, plaintiffs cannot be faulted for failing to produce such literature.

Also, we disagree with defendants’ assertion that the cited medical literature does not offer any support for Dr. Hosalkar’s standard

- of

- care testimony. Collectively, such literature

establishes that

, be ginning in at least 2009, there was a growing concern within the orthopedic community that the intraarticular use of bupivacaine pain pumps was unsafe. Although such literature may not directly support every aspect of Dr. Hosalkar’s standard

- of

- care testi mony, it- 8

- lends credence to his opinion that, at the time in question here, the use of a bupivacaine pain pump following arthroscopic knee surgery

— whether intraarticularly or subcutaneously

— fell

below the recognized standard of practice or care for board

- ce rtified orthopedic surgeons. At a minimum, the literature shows that Dr. Hosalkar’s opinion was rooted in hard science, not merely speculation about effects that bupivacaine might have.

In sum, we discern no reason that Dr. Hosalkar’s standard

- of

- care testimony would be inadmissible at trial. Hence, it is substantively admissible, and it may be considered for purposes

of our ensuing summary disposition analysis.

B. SUMMARY DISPOSITION UNDER MCR 2.116(C)( 10)

Considering all of the substantively admissible record evidence in the light most

favorable to defendants

, as the nonmoving parties, we conclude that partial summary disposition in plaintiffs’ favor is unwarranted. Several genuine issues of material fact remain with regard to the applicable standard of care and whether Dr. Mendelson breached it.

Indeed, in their brief on appeal, plaintiffs inadvertently acknowledge one such genuine issue of material fact, a sserting that “there is a question of fact a s to whether the pain pump at issue was placed intra

- articularly or subcutaneously.” Plaintiffs are correct. Although Dr. Mendelson testified unequivocally that the pain pump was placed subcutaneously , and that he

had “ never inserted a pain pump intraart icularly ,” there is circumstantial evidence suggesting that his testimony in that regard might be either mistaken or intentionally false. (Emphasis added.) From such evidence, and in light of the evidence that it was widely known that intraarticular plac ement of a pain pump was associated with chondrolysis, a rational juror could infer that Dr. Mendelson’s testimony regarding the placement of the pain pump was either mistaken or intentionally false . Hence, a genuine issue of material fact remains whether the pump was placed intraarticularly or subcutaneously.

Additionally, as several of the expert witnesses noted, even assuming that the pain pump

was placed subcutaneously, there is a dearth of evidence about where, exactly, it was placed under plaintiff’ s skin. Accordingly, there is no evidence of how proximate the pain pump was to the site of plaintiff’s arthroscopy. Consequently, there are at least two issues of fact with regard to where the pain pump was placed, and those factual disputes are decided ly material. Without a factual determination of what Dr. Mendelson actually did, and how he did it, it cannot be

determined whether his conduct violated the applicable standard of care.

Finally, and contrary to the trial court’s conclusion, there is a genuine dispute regarding the applicable standard of care. Dr. Mendelson opined that based on the existing literature when plaintiff’s surgery was performed in 2012, it would not have been a violation of the standard of care for an orthopedic surgeon to p lace a bupivacaine pain pump intraarticular ly following knee arthroscopy. Likewise, Dr. Denzin expressed the opinion that whether the intraarticular use of a Bupivacaine pain pump constituted a deviation from the standard of care at that time depended

on the unique circumstances of the given case, noting that doing so might have been appropriate

“ if there was some reason to think that [plaintiff ’ s] pain problem would have been excessive[.] ”

Dr. Denzin further testified that although subcutaneous placement of a pain pump following arthroscopic surgery is unnecessary “ most of the time, ” every patient is unique. From such- 9

- testimony, a reasonable juror could conclude that either intraarticular or subcutaneous placement

of a bupivacaine pain pump accorded with the applicable standard of care under the

circumstances of this case.

We recognize that both Dr. Mendelson and Dr. Denzin made other statements that are arguably inconsistent with their standard

- of

- care testimony, and Dr. Hosalkar vigorously disagreed wi th their opinions. But “doubts pertaining to credibility, or an opposing party’s disagreement with an expert’s opinion or interpretation of facts, present issues regarding the weight to be given the testimony, and not its admissibility.” Surman v Surman

, 277 Mich App 287, 309; 745 NW2d 802 (2007). “ The extent of a witness ’ s expertise is usually for the jury to

decide. ” Id . Accordingly, for the se purposes, it is improper to gauge the credibility of the expert

witnesses. See Bank of America, NA v Fideli ty Nat’l Title Ins Co , 316 M ich App 480, 512; 892

NW2d 467 (2016) (“A trial court may not weigh evidence when ruling on a summary disposition motion, or make credibility determinations.”) (citations omitted). Given the conflicting testimony from qualified experts in this case, it must be left for the trier of fact to decide which

expert or experts to believe.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Kathleen Jan sen /s/ Patrick M. Meter