Estate of Patricia E Leblanc v. Eugene J Agnone Md
330416
| Mich. Ct. App. | Jul 6, 2017Background
- Estate of Patricia E. LeBlanc sued multiple physicians for medical malpractice; dispute arose over admissibility of Dr. Gerald Sokol as plaintiff’s standard-of-care expert regarding defendant Dr. Eugene Agnone.
- Michigan statute MCL 600.2169(1)(b) requires a proposed expert who will opine on a defendant doctor’s standard of care to have “devoted a majority of his or her professional time to” active clinical practice in the same specialty as the defendant.
- Lower court disqualified Dr. Sokol as an expert, concluding he was overqualified or did not meet the statutory “majority” requirement for medical oncology relative to Agnone’s specialty.
- Judge Ronayne Krause (concurring in part and dissenting in part) argues the exclusion was improper: she reads “a majority” as the largest share of professional time (not necessarily >50%) and contends Sokol’s testimony showed he devoted most of his work to medical oncology.
- Krause treats the Supreme Court’s statement in Woodard that “a specialist can only devote a majority of his professional time to one specialty” as dicta and criticizes the Court of Appeals’ precedent in Kiefer for equating “a majority” with “more than 50%.”
Issues
| Issue | Plaintiff's Argument (LeBlanc) | Defendant's Argument (Agnone) | Held |
|---|---|---|---|
| Whether Dr. Sokol satisfied MCL 600.2169(1)(b)’s “devoted a majority” requirement to testify on Agnone’s standard of care | Sokol spent the largest portion of his professional time in medical oncology and his testimony shows substantial oncology clinical, teaching, and call duties | Sokol’s time allocation was unclear and he was effectively overqualified/ not primarily a medical oncologist for >50% of time | Majority affirmed trial court’s exclusion; Judge Krause would reverse, finding Sokol met the requirement (and in any event met >50%) |
| Interpretation of “a majority” in the statute: does it mean the largest share or strictly more than 50%? | “A majority” should mean the largest percentage of time (not necessarily >50%) and statute’s phrasing supports that meaning | Precedent (Kiefer) treats “a majority” as >50%, and Woodard suggests a specialist can only have one majority specialty | Panel majority follows Kiefer/Woodard (treating majority as >50%); Judge Krause dissents, arguing those authorities are dicta or wrongly decided |
| Precedential weight of Woodard’s statement that a specialist can only devote a majority to one specialty | Woodard’s line is dicta on this precise question and should not control; statutory text controls | Woodard is binding precedent that a specialist’s majority must be a single specialty (>50%) | Judge Krause: Woodard’s statement is dicta and not controlling; majority treats it as binding via Kiefer |
| Whether testimony form/labels matter versus substance of Sokol’s actual duties | Substance controls; Sokol’s reluctance to use legal terminology does not defeat his demonstrable oncology practice time | Sokol’s testimony was unclear and noncompliant with statutory framing, warranting exclusion | Judge Krause: substance wins — testimony supports admissibility; majority sustained exclusion based on statutory interpretation and perceived lack of clarity |
Key Cases Cited
- Woodard v. Custer, 476 Mich 545 (Michigan 2006) (discussed “majority” devotee requirement for expert testimony in medical-malpractice context)
- Kiefer v. Markley, 283 Mich App 555 (Mich. Ct. App. 2009) (interpreted “a majority” as meaning more than 50% for expert-qualification rule)
- Ortega v. Lenderink, 382 Mich 218 (Mich. 1969) (courts look to substance of testimony not labels)
- Zantop Int’l Airlines v. Eastern Airlines, 200 Mich App 344 (Mich. Ct. App. 1993) (arguments of counsel are not evidence)