Edry v. Adelman

Decision Date22 July 2010
Docket NumberDocket No. 138187.,Calendar No. 4.
Citation486 Mich. 634,786 N.W.2d 567
PartiesTracy EDRY, Plaintiff-Appellant,v.Marc ADELMAN and Marc Adelman, D.O., P.C., Defendants-Appellees.
CourtMichigan Supreme Court

Sommers Schwartz, P.C., Southfield (by Richard D. Toth), for plaintiff.

Saurbier & Siegan, P.C., St. Clair Shores (by Debbie K. Taylor), for defendants.

Warner Norcross & Judd LLP, Grand Rapids (by John J. Bursch, Matthew T. Nelson, and Julie Lam) for Amicus Curiae Michigan Health & Hospital Association.

Kerr, Russell and Weber, PLC, Detroit (by Daniel J. Schulte and Joanne Geha Swanson) for Amicus Curiae Michigan State Medical Society.

MEMORANDUM OPINION.

In this case we must decide whether the trial court abused its discretion by excluding plaintiff's expert's testimony under MRE 702 and whether the trial court erred by dismissing plaintiff's entire complaint. We affirm the Court of Appeals judgment that the trial court did not abuse its discretion by barring the expert's testimony as unreliable and did not err by dismissing plaintiff's entire complaint.1

In June 2003, plaintiff noticed an approximately three-millimeter lump under her arm. Before noticing the lump, plaintiff had been seeing defendant, 2 an obstetrician and gynecologist (OB/GYN), for routine check-ups. According to plaintiff, she brought the lump to defendant's attention in 2003, and defendant told her to check back with him if the lump increased in size, but he did not order any tests, consult with a surgeon, or schedule a follow-up appointment. In 2005, plaintiff was diagnosed with breast cancer. The initial biopsy indicated that the cancer was invasive and had spread to 16 lymph nodes. Plaintiff then had a radical mastectomy, three rounds of chemotherapy, and radiation therapy.

Plaintiff filed a suit against defendant, alleging that defendant breached the applicable standard of care by failing to test for cancer when plaintiff first brought the lump to defendant's attention in 2003. Plaintiff alleged that her opportunity for longterm survival was substantially diminished by the delay in diagnosis and treatment and that she was subjected to more invasive, severe, and disfiguring medical treatment as a result of defendant's negligence. Dr. Rainna Brazil, an OB/GYN, signed plaintiff's affidavit of merit, which explained defendant's standard of care and how he breached that standard of care, and claimed that defendant's breach resulted in plaintiff having to undergo more invasive medical treatment. Dr. Brazil also testified at a deposition regarding defendant's standard of care. Specifically, Dr. Brazil testified that cancer growth rates and survival statistics of breast cancer patients are not within her area of expertise and that such determinations are best left to a medical oncologist. Plaintiff's second OB/GYN expert, Dr. Roger Kushner, also testified that cancer growth rates are best determined by an oncologist.

Dr. Barry Singer testified at a deposition as plaintiff's oncology expert. He stated that plaintiff's chances of surviving five years would have been 95 percent if she had been diagnosed in June 2003 and that the delay in diagnosis reduced her five-year survival chance to 20 percent. Dr. Singer acknowledged that the American Joint Cancer Commission (AJCC) manual was authoritative on this subject and reported a 60 percent five-year survival rate for breast cancer patients when the cancer has spread to four or more lymph nodes. Dr. Singer stated, however, that the manual was not applicable to plaintiff's case because the cancer had spread to 16 lymph nodes, and he believed that the more lymph nodes involved, the poorer the chance of survival. During his deposition, Dr. Singer referred to textbooks and journal articles that supported his theory, but plaintiff never produced those authorities to support his testimony.

Defendant's oncology expert, Dr. Joel Appel, testified that plaintiff's chance of survival was 60 percent based on the AJCC manual and that it was medically improper to consider the number of lymph nodes involved as a predictor of a patient's chance of survival. Further, Dr. Appel testified that Dr. Singer's opinion was not based on recognized scientific or medical knowledge, was not generally accepted in the medical community, and could not be substantiated with any medical evidence.

Defendant moved for summary disposition on the basis that Dr. Singer's testimony was not admissible under MRE 702. After a hearing on the issue, the trial court entered an order that barred Dr. Singer from testifying at trial, but it did not state whether it was granting defendant's motion for summary disposition. Plaintiff moved to set aside the trial court's order barring Dr. Singer's testimony, and defendant moved to dismiss the complaint, arguing that plaintiff could not prove medical malpractice without Dr. Singer's testimony. After a second hearing, the trial court denied plaintiff's motion and granted defendant's motion to dismiss the case in its entirety with prejudice. Plaintiff appealed as of right.

Noting that the trial court's basis for disposing of the case was not clear, the Court of Appeals reviewed the record and determined that the trial court's decision should be reviewed as a decision on a motion for summary disposition under MCR 2.116(C)(10).3 Edry v. Adelman, unpublished opinion per curiam of the Court of Appeals, issued December 23, 2008 (Docket No. 279676), p. 2, 2008 WL 5382667. The Court of Appeals then affirmed, reasoning that Dr. Singer's testimony was properly barred under MRE 702, among other reasons. Id. at 5. This Court granted leave to appeal. Edry v. Adelman, 485 Mich. 901, 772 N.W.2d 427 (2009).

This Court reviews a motion for summary disposition de novo. Spiek v. Dep't of Transp., 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Craig v. Oakwood Hosp., 471 Mich. 67, 76, 684 N.W.2d 296 (2004). An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes. People v. Babcock, 469 Mich. 247, 269, 666 N.W.2d 231 (2003). This Court has stated that “the proponent of evidence bears the burden of establishing relevance and admissibility....” People v. Crawford, 458 Mich. 376, 386 n. 6, 582 N.W.2d 785 (1998).

The admissibility of expert witness testimony is governed by MRE 702, which states:

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.

This Court has stated that MRE 702 incorporates the standards of reliability that the United States Supreme Court described to interpret the equivalent federal rule of evidence in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 781, 685 N.W.2d 391 (2004). Under Daubert, “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. This Court has implied that, while not dispositive, a lack of supporting literature is an important factor in determining the admissibility of expert witness testimony. See Craig, 471 Mich. at 83-84, 684 N.W.2d 296 (stating that the expert's singular reliance on his own hypothetical depiction of an event may have been too speculative and, therefore, inadmissible under MRE 702). See, also Daubert, 509 U.S. at 593, 113 S.Ct. 2786 (stating that whether there is peer-reviewed and published literature on a theory is a “pertinent consideration” because “submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected”).

Here, Dr. Singer's testimony failed to meet the cornerstone requirements of MRE 702. Dr. Singer's opinion was not based on reliable principles or methods; his testimony was contradicted by both the defendant's oncology expert's opinion and the published literature on the subject that was admitted into evidence, which even Dr. Singer acknowledged as authoritative. Moreover, no literature was admitted into evidence that supported Dr. Singer's testimony. Although he made general references to textbooks and journals during his deposition, plaintiff failed to produce that literature, even after the court provided plaintiff a sufficient opportunity to do so. Plaintiff eventually provided some literature in support of Dr. Singer's opinion in her motion to set aside the trial court's order, but the material consisted only of printouts from publicly accessible websites that provided general statistics about survival rates of breast cancer patients. The fact that material is publicly available on the Internet is not, alone, an indication that it is unreliable, but these materials were not peer-reviewed and did not directly support Dr. Singer's testimony.4 Moreover plaintiff never provided an affidavit explaining how Dr. Singer used the information from the websites to formulate his opinion or whether Dr. Singer ever even reviewed the articles.

Plaintiff failed to provide any support for Dr. Singer's opinion that would demonstrate that it has some basis in fact, that it is the result of reliable principles or methods, or that Dr. Singer applied his methods to the facts of the case in a reliable manner, as required by MRE 702. While peer-reviewed, published literature is not...

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