Elher v. Misra
499 Mich. 11
| Mich. | 2016Background
- Paulette Elher sued Dr. Dwijen Misra after he inadvertently clipped her common bile duct during a laparoscopic cholecystectomy; emergency repair followed. Plaintiff had signed a consent form that listed common bile duct injury as a known risk.
- Plaintiff relied on a single standard-of-care expert, Dr. Paul Priebe (board‑certified general surgeon), who testified it is virtually always malpractice to clip the common bile duct absent extensive scarring/inflammation, and found Misra breached the standard here.
- At deposition Priebe admitted he could cite no peer‑reviewed literature, no colleagues who agreed, and that his opinion was based on his own belief system rather than demonstrably tested methodology.
- Defendants submitted affidavits from experts and peer‑reviewed literature (including a study by Way showing most injuries result from perceptual error and are not negligence) supporting that such injuries can be known, non‑negligent complications of laparoscopy.
- The circuit court excluded Priebe’s testimony under MRE 702 and MCL 600.2955 as unreliable and granted summary disposition for defendants; the Court of Appeals (majority) reversed, but this Court reinstated the circuit court, holding exclusion proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to prove breach of standard of care | Elher: injury is obvious to layperson or, if expert needed, Priebe’s experience suffices | Defendants: expert testimony required and Priebe’s opinion is unreliable under MRE 702/MCL 600.2955 | Expert testimony was required; Priebe’s testimony was excluded as unreliable |
| Whether Priebe’s opinion satisfied MRE 702 (reliability) | Priebe: his experience and specialized knowledge make his opinion admissible; Daubert factors may be less relevant for clinical judgment | Defendants: lack of testing, peer‑review, general acceptance, and contradictory peer‑reviewed literature render the opinion unreliable | MRE 702 not satisfied—experience alone insufficient; testimony inadmissible |
| Relevance of MCL 600.2955 factors (peer review, general acceptance, testing) | Elher: factors not applicable because dispute is clinical judgment outside scientific methodology | Defendants: factors are pertinent; peer‑reviewed literature exists contradicting Priebe | Court: testing/replication factor inapplicable here, but peer‑review and general‑acceptance factors were relevant and weighed against Priebe |
| Whether circuit court abused its discretion in excluding the expert | Elher: exclusion was abuse—this is a legitimate difference of opinion among qualified experts | Defendants: no abuse—circuit court reasonably found opinion had no reliable basis | No abuse of discretion; circuit court properly excluded testimony and summary disposition affirmed |
Key Cases Cited
- Edry v. Adelman, 486 Mich 634 (expert opinion inadmissible where contradicted by literature and lacked supporting authority)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (trial judge must ensure scientific testimony is relevant and reliable)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies to all expert testimony, including non‑scientific)
- Craig v. Oakwood Hosp., 471 Mich 67 (elements plaintiff must prove in medical malpractice and general requirement of expert testimony)