Background
Lynda Danhoff and her husband filed a Michigan medical malpractice action against Daniel K. Fahim, M.D. and others regarding a surgical procedure performed on Lynda known as extreme lateral intrabody fusion (XLIF). Lynda began to experience complications following the procedure, including pain, fever, and elevated body temperature and blood pressure. A CT scan revealed that there was “free air and free material” outside Lynda’s colon, and Lynda had to have another surgical procedure to correct this issue. The surgeon performing this procedure observed that Lynda’s sigmoid colon was perforated and was leaking stool. Lynda had four more surgeries to correct the perforation, which led to permanent medical conditions.
Plaintiffs alleged that the surgeons who performed the XLIF procedure had committed malpractice by perforating Lynda’s sigmoid colon during the XLIF procedure. Defendants moved for summary disposition, arguing that plaintiffs had failed to establish the standard of care or causation. The trial court found that the affidavit of merit submitted by plaintiffs’ expert was not sufficiently reliable to admit his testimony because the expert had failed to cite any published medical literature or other authority to support his opinion that defendants had breached the standard of care. Plaintiffs moved for reconsideration and submitted another affidavit from their expert. The trial court denied the motion, concluding that the opinions of plaintiffs’ expert still were not supported by reliable principles and methods or by the relevant community of experts. Plaintiffs appealed, and the Court of Appeals affirmed in an unpublished per curiam opinion. Plaintiffs applied for leave to appeal in the Michigan Supreme Court, which granted oral argument on the application.
MCL 600.2955(1) presents a nonexhaustive list of seven factors that a trial court must consider in determining whether an expert’s opinions are reliable, including: (1) whether the opinion and its basis have been subjected to scientific testing and replication; (2) whether the opinion and its basis have been subjected to peer-reviewed publication; (3) the existence 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; (4) the known or potential error rate of the opinion and its basis; (5) the degree to which the opinion and its basis are generally accepted within the relevant expert community; (6) 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; and (7) whether the opinion or methodology is relied upon by experts outside of the context of litigation.
The Michigan Supreme Court stated in its July 8, 2024 decision: “While published literature may be an important factor in determining reliability, it is not dispositive, and thus its absence does not require finding that the proposed expert testimony is unreliable and therefore inadmissible. Expert testimony is inadmissible when it does not meet the reliability requirements of MRE 702, MCL 600.2955, and MCL 600.2169, not because the testimony was not or could not be supported by peer-reviewed literature. The lower courts erred by focusing so strictly on plaintiffs’ inability to support their expert’s opinions with published literature such that it was inadmissible under MRE 702. If a lack of supportive medical literature were treated as dispositive when the opinions of a plaintiff’s expert were otherwise reliable, patients who experience complications so rare they have not been studied by the academic community or discussed in peer-reviewed publications would not be able to offer admissible expert testimony when seeking legal recourse for their injuries. The avoidance of such a result is why MCL 600.2955 has several factors to be considered in determining reliability.”
The Michigan Supreme Court reversed and remanded the case.
Danhoff v. Fahim, Docket No. 163120.
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