You can’t say that

You have decided to be an expert witness for the defense in a malpractice case. You are board certified and have lots of other supporting credentials. Your testimony was taken at a de benne esse deposition. This type of deposition is videotaped and taken in anticipation of your being unavailable to testify at the trial. At this type of deposition, you are sworn in as you would be at the trial, you provide your direct testimony, and you are also cross-examined by the opposing counsel. The entire deposition is preserved, and the recording can then be introduced at the trial if you cannot appear.

Mackenzie v Koziarski, no. 289234 (Mich Ct. App., March 22, 20011), dealt with this issue when, on the day before the trial, the defendant sought to have the plaintiff’s expert declared incompetent to testify because his opinion was not reliable. The trial court noted that the expert was highly qualified and board certified; therefore, his deposition testimony could be read into the record. A directed verdict was given at the trial based on another matter, an appeal ensued, and this issue—the reliability of an expert’s testimony based on his credentials and unsupported opinion—was 1 issue addressed in the appeal. Now for the facts.

The patient was operated on and died. The defendant, a board-certified general surgeon, elected to use a laparoscopic approach instead of an open one to repair the patient’s hernia. During the deposition of the plaintiff’s expert, he opined that, although the surgery was performed adequately, and a perforated bowel (which ultimately caused the patient to suffer sepsis and then death) was a known potential negative sequela of a laparoscopic approach, the surgeon was nonetheless negligent because (1) the patient suffered from multiple adhesions, which made laparoscopic bowel perforation more likely; (2) the risk of perforation is lower in open than in closed procedures; and (3) if perforations occur, they are more detectable and more amenable to correction in open vs closed procedures. The plaintiff’s expert also noted during his deposition that, although he was familiar with laparoscopic surgery, (1) he himself had performed fewer than 30 of the procedures in question, (2) that he was not performing the procedure in question when the incident gave rise to the lawsuit, (3) he could not remember the last time he performed this procedure, (4) the surgical principles are the same regardless of the exact type of surgery performed, and (5) he had developed a new method of open surgery that would have been preferable under the circumstances. The trial court ruled that the expert was qualified to render his opinions, and that his relative lack of familiarity with the procedure in question should go to the weight of his testimony as determined by the jury rather than to its admissibility.

The appellate court ruled that the trial court erred by not attending to its “gatekeeper” function, since trial courts have wide discretion in determining what evidence is admissible. When it comes to scientific evidence, they cannot allow evidence to be admitted solely because the expert proffering that testimony is highly qualified or has board certification. Rather, trial courts must perform a gatekeeping examination as to the reliability of the testimony proffered. This function is based on the principles elaborated in Daubert (cit omit), a landmark case dealing with the admissibility of scientific evidence. Michigan codified Daubert in MCL 600.2955(1) and MRE 702, which require courts to determine the following.

  • 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-review publication.

  • 3.

    The existence and maintenance of generally accepted standards governing the application and interpretation of the 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 in the relevant expert community. “Relevant expert community” means people who are knowledgeable in the field of study, and are gainfully employed and applying that knowledge on the free market.

  • 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.

  • 7.

    Whether the opinion or methodology is relied upon by experts outside the context of litigation.

The appellate court was clear in its holding. It stated that the gatekeeping role of the trial judge:

[M]andates a searching inquiry, not just of the data underlying expert testimony, but also of the manner in which the expert interprets and extrapolates from that data. Thus it is insufficient for the proponent of an expert opinion merely to show that the opinion rests on data viewed as legitimate in the context of a particular area of expertise (such as medicine). The proponent must also show that any opinion based on those data expresses conclusions reached through reliable principles and methodology.

The appellate court also noted established case law holding that:

The 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. Rather, an evidentiary hearing… is merely a threshold inquiry to ensure that the trier of fact is not called on to rely in whole or in part on an expert opinion that is only masquerading as science. An expert’s opinion is not necessarily unreliable if it is not shared by all others in the field or if there exists some conflicting evidence. A trial court does not abuse its discretion by nevertheless admitting an expert opinion, as long as the opinion is rationally derived from a sound foundation. The exercise of the trial court’s gate-keeper role is within its discretion, but the trial court may not abandon its obligation or perform the function inadequately (cits omit).

The case was remanded for a new trial.


So, what’s the message? Probably the most important message the court was sending was that experts can’t get up on a witness stand and say, “Well, in my hands…” or “it has been my experience that…” or “most doctors I know believe…” and similar statements.

The court was saying that an expert’s opinion must be based on data such as peer-reviewed articles on the subject, information obtained at duly sponsored scientific meetings that offer continuing education credits for attending the lectures where such data are disseminated, experience gained through practice and teaching at accredited universities and interacting with other faculty members concerning that topic, engaging in research that has passed muster or scrutiny regarding the methodology and the analyses used to analyze the data, and so on. We cannot, nor should we, support expert testimony that does not have at its core a foundation based on clinical or basic science relating to the issue in question. Of course, that is the problem in a nutshell.

Current clinical science in orthodontics is somewhat vague and misleading. What we do does not lend itself to the same exactitude that is found in other areas of clinical medicine. Our diagnostics often deal with the subjective rather then the objective, our ministrations are often patient dependent, the techniques available to elicit a certain result are many, and in many cases we are faced with an “all roads lead to Rome” result. No, unfortunately, we are not always or even often able to perform clinical orthodontic studies in the same manner as other areas of the healing arts can.

That being said, there is no reason to throw in the towel and go back to the glorious days of yesteryear of “in my hands”; well, you get the picture. Let’s all just decide to step it up a notch. Let’s try to inject a little more science into our expert testimonies, and let’s try to be as reliable as our gatekeepers hope we will be. Merely because our science is a little weaker than we would like does not mean it is a free-for-all and that anybody is entitled to say anything to support the side of the bench that he or she is advocating. Until the day comes, if it ever does, that the science of orthodontics becomes a hard science instead of a soft one, let’s use the science we have, eradicate the junk, minimize the unsubstantiated, and understand that in the end there is still a patient who believes he or she has been injured and a doctor who believes he or she has been wronged, and that somewhere in the middle lies the truth.

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on You can’t say that
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