Jean Lienard v. Applewood Nursing Center Inc ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JEAN LIENARD, UNPUBLISHED
April 27, 2023
Plaintiff-Appellant,
v No. 358562
Wayne Circuit Court
APPLEWOOD NURSING CENTER, INC., LC No. 19-006933-NH
Defendant-Appellee.
Before: CAVANAGH, P.J., and MARKEY and BORRELLO, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals as of right the trial court’s order
granting summary disposition, pursuant to MCR 2.116(C)(10), in favor of defendant. On appeal,
plaintiff argues that the trial court erred in granting summary disposition for defendant after it
incorrectly struck the testimony of her medical expert establishing causation. For the reasons set
forth in this opinion, we vacate and remand for further proceedings.
I. BACKGROUND
This case arose from plaintiff’s treatment at defendant’s nursing facility following hip-
replacement surgery. We begin by noting that the issue presented on appeal is narrow and is
limited to deciding whether the trial court erred by determining that the testimony of plaintiff’s
proposed expert on causation was inadmissible such that defendant was entitled to judgment as a
matter of law. Thus, our recitation of the pertinent facts will be appropriately focused.
As relevant to the issue on appeal, plaintiff alleged in her complaint that while she was
staying in defendant’s facility to recover from her right hip replacement surgery that had been
performed approximately two weeks earlier, an unidentified nursing assistant helped transfer
plaintiff from her bed and abruptly or suddenly pulled plaintiff’s right leg. Plaintiff immediately
experienced severe pain in her right leg and was taken to the hospital. Subsequent imaging studies
of plaintiff’s right hip revealed a “fracture of the medial wall of the acetabulum.”
In her deposition, plaintiff described the incident in more detail. According to plaintiff,
two nursing aids came into her room to help her get up from her bed to use the bathroom. Plaintiff
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testified that the two aids were talking to each other and “not paying attention” as they stood on
opposite sides of the end of the bed by plaintiff’s feet. Plaintiff stated that suddenly, “one took my
leg and yanked it that way, and the other one yanked it this way.” Plaintiff heard “like a crack”
and felt “[i]mmediate pain” beyond what she had otherwise experienced since her surgery.
Plaintiff’s surgeon testified in his deposition that there had been no complications during
plaintiff’s original hip replacement surgery and that a post-operative x-ray had revealed no
fractures. The imaging studies following the alleged incident with the two nursing assistants in
defendant’s facility showed a “change from the post-operative films,” which plaintiff’s surgeon
found “compatible with some type of failure of the bone around the prosthesis that needed to be
addressed.” Plaintiff’s surgeon explained that there was a fracture around the implant, with the
cup of the implant protruding into the pelvis. As a result of the fracture, plaintiff’s surgeon
performed another operation to address the fracture and repair plaintiff’s hip replacement.
Plaintiff subsequently initiated this medical malpractice action. Following discovery,
defendant moved for summary disposition under MCR 2.116(C)(10) or, alternatively, for a
Daubert1 hearing. Defendant argued, “Plaintiffs only causation expert, Dr. Robert Corn, has
acknowledged there is no medical literature to support his ultimate opinion that the acetabular
protrusion occurred due to forced abduction of the legs as described and alleged by Plaintiff.”
Defendant further argued that Corn’s testimony was unreliable and inadmissible under MRE 702,
and that plaintiff accordingly could not demonstrate the requisite but-for causation, because Corn
had “no support for his opinions and relie[d] on speculation and a ‘cherry picking’ of relevant facts
and circumstances in claiming that but for the alleged event as described by [plaintiff] this injury
would not have occurred.”
Plaintiff argued in response that Corn’s opinions were not speculative or unfounded.
Plaintiff maintained that Corn’s opinion was based on the evidence in the record, including
plaintiff’s testimony that she heard a crack and felt immediate pain after two aids pulled her legs
in opposite directions coupled with the testimony of plaintiff’s surgeon that the fracture was not
present immediately following plaintiff’s initial surgery. Corn stated that fractures result from the
application of force that exceeds the strength of the bone, and he opined that plaintiff’s hip fracture
would not have occurred but for the trauma she suffered when the aids pulled her legs in opposite
directions. Plaintiff argued that there was no evidence of any other trauma incurred by plaintiff.
Furthermore, Corn had explained that there were not any studies of this specific mechanism of
causation for such a fracture because, and not surprisingly, it would not be possible to find
volunteers for such a study.
The court held a Daubert hearing during which plaintiff’s expert and defendant’s expert
both testified. At the conclusion of the hearing, the trial court granted summary disposition in
defendant’s favor without clear explanation or elaboration of its reasoning. This appeal followed.
II. STANDARD OF REVIEW
1
Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
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This Court reviews a trial court’s decision on a motion for summary disposition de novo.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). On a motion
under MCR 2.116(C)(10), the evidence must be considered in the light most favorable to the
opposing party, and the motion may only be granted if no genuine issue of material fact exists. Id.
at 160. “A genuine issue of material fact exists when the record leaves open an issue upon which
reasonable minds might differ.” Id. (quotation marks and citation omitted).
To the extent the trial court’s decision involved the exclusion of evidence,
[w]e review the circuit court’s decision to exclude evidence for an abuse of
discretion. “An abuse of discretion occurs when the trial court chooses an outcome
falling outside the range of principled outcomes.” We review de novo questions of
law underlying evidentiary rulings, including the interpretation of statutes and court
rules. The admission or exclusion of evidence because of an erroneous
interpretation of law is necessarily an abuse of discretion. [Elher v Misra, 499 Mich
11, 21; 878 NW2d 790 (2016) (citations omitted).]
III. ANALYSIS
A claim of medical malpractice requires a plaintiff to prove the following four elements:
(1) the appropriate standard of care governing the defendant’s conduct at the time
of the purported negligence, (2) that the defendant breached that standard of care,
(3) that the plaintiff was injured, and (4) that the plaintiff’s injuries were the
proximate result of the defendant’s breach of the applicable standard of care.
[Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).]
“ ‘Proximate cause’ is a legal term of art that incorporates both cause in fact and legal (or
‘proximate’) cause.” Id. (citation omitted). At issue in this case is the cause-in-fact element, which
“generally requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not
have occurred.” Teal v Prasad, 283 Mich App 384, 391; 772 NW2d 57 (2009) (quotation marks
and citation omitted). “Generally, an act or omission is a cause in fact of an injury only if the
injury could not have occurred without (or ‘but for’) that act or omission. While a plaintiff need
not prove that an act or omission was the sole catalyst for his injuries, he must introduce evidence
permitting the jury to conclude that the act or omission was a cause.” Craig, 471 Mich at 87(citations omitted).
In a medical malpractice case, “[e]xpert testimony is essential to establish a causal link
between the alleged negligence and the alleged injury.” Pennington v Longabaugh, 271 Mich App
101, 104; 719 NW2d 616 (2006). An expert’s opinion must be based on facts in evidence, and
“an expert opinion based upon only hypothetical situations is not enough to demonstrate a
legitimate causal connection between a defect and injury.” Teal, 283 Mich App at 394-395(quotation marks and citation omitted). A plaintiff must instead “set forth specific facts that would
support a reasonable inference of a logical sequence of cause and effect.” Id. (quotation marks
and citation omitted).
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Furthermore, “[t]he proponent of expert testimony in a medical malpractice case must
satisfy the court that the expert is qualified under MRE 702, MCL 600.2955 and MCL
600.2169.[2]” Elher, 499 Mich at 22 (quotation marks and citation omitted). MRE 702 provides:
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.
MRE 702 “requires the circuit court to ensure that each aspect of an expert witness’s
testimony, including the underlying data and methodology, is reliable,” and this rule of evidence
“incorporates the standards of reliability that the United States Supreme Court articulated in
Daubert v Merrell Dow Pharm, Inc,[ 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993),] in
order to interpret the equivalent federal rule of evidence.” Elher, 499 Mich at 22. “Under Daubert,
the trial judge must ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Id. at 22-23 (quotation marks and citation omitted).
Similarly, MCL 600.2955(1) provides:
(1) In an action for the death of a person or for injury to a person or property,
a scientific opinion rendered by an otherwise qualified expert is not admissible
unless the court determines that the opinion is reliable and will assist the trier of
fact. In making that determination, the court shall examine the opinion and the
basis for the opinion, which basis includes the facts, technique, methodology, and
reasoning relied on by the expert, and shall consider all of the following factors:
(a) Whether the opinion and its basis have been subjected to scientific
testing and replication.
(b) Whether the opinion and its basis have been subjected to peer review
publication.
(c) The existence and maintenance 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.
(d) The known or potential error rate of the opinion and its basis.
(e) The degree to which the opinion and its basis are generally accepted
within the relevant expert community. As used in this subdivision, “relevant expert
2
MCL 600.2169 pertains primarily to the general qualifications required for an individual to testify
as an expert in medical malpractice actions. This statute is not relevant to this appeal.
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community” means individuals who are knowledgeable in the field of study and are
gainfully employed applying that knowledge on the free market.
(f) 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.
(g) Whether the opinion or methodology is relied upon by experts outside
of the context of litigation.
“[A]lthough MCL 600.2955(1) explicitly requires the trial court to consider all seven of
the factors it enumerates, the statute does not require that each and every one of those seven factors
must favor the proffered testimony.” Chapin v A & L Parts, Inc, 274 Mich App 122, 137; 732
NW2d 578 (2007) (opinion by DAVIS, J.). “The only proper role of a trial court at a Daubert
hearing is to filter out expert evidence that is unreliable, not to admit only evidence that is
unassailable. The inquiry is not into whether an expert’s opinion is necessarily correct or
universally accepted.” Id. at 139.
Relatedly, as stated by our Supreme Court:
The United States Supreme Court has recognized . . . that the Daubert factors may
or may not be relevant in assessing reliability, depending on the nature of the issue,
the expert’s expertise, and the subject of the expert’s testimony. And even though
the United States Supreme Court has stated that, in some cases, the relevant
reliability concerns may focus upon personal knowledge or experience, the Court
has also stated that even in those cases, the Daubert factors can be helpful, even if
all of the factors may not necessarily apply in determining the reliability of
scientific testimony. Accordingly, it bears repeating that it is within a trial court’s
discretion how to determine reliability. [Elher, 499 Mich at 24-25 (quotation marks
and citations omitted).]
Here, the trial court failed to clearly explain its reasoning or the basis for its ruling granting
summary disposition. From its ruling we glean that the trial court at least impliedly determined
that Corn’s proposed expert opinion testimony was inadmissible under MRE 702. However, the
trial court did not engage in the requisite legal analysis for determining whether the testimony was
admissible under MRE 702, MCL 600.2955, and the Daubert standard. Elher, 499 Mich at 22.
Instead, the trial court appeared more concerned with conducting a miniature trial and adjudicating
the battle between the parties’ respective experts. Although the trial court asserted, “I don’t think
there’s a factual dispute here where the Court is trying to determine who’s telling the truth[,]” the
trial court’s other statements on the record belie that claim. The trial court stated as follows to
plaintiff’s counsel:
The Court: Okay. I understand your argument.
Here’s the problem . . . that I see with your case. It’s that your client has
already testified, as well as other people I believe have speculated on her testimony
anyway, of how this incident occurred.
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So trying to now state after her testimony that it happened by trauma and
because of the trauma that that, you know, that the Dr. Corn’s testimony is
supported or somehow, you know, cause and affect here, it doesn’t match up to
what she alleges occurred.
So what she alleges occurred, your client, the plaintiff, is that apparently
there were two nurses pulling her legs in different directions.
And the problem with Dr. Corn’s testimony, who clearly is very learned in
this area, is that a traumatic event had to have occurred in order for her injury to—
you know, in order for her injury.
But there is no support, peer review or otherwise, that supports the injury to
the way she describes the incident, right?
So that’s the problem here is that I think what you’re trying to do now is
change her testimony and now allege that her injury occurred from a traumatic
event which it sounds like traumatic (Inaudible) but that’s not her testimony. Are
you with me?
So if that’s what she had testified to that a traumatic event occurred, she fell
or they dropped her or I don’t know, something, then it seems to me that Dr. Corn’s
testimony would be supported.
But that’s not what she claimed happened. What she claimed happened is
that two nurses pulled her legs in different directions.
And I should add that there’s no one to corroborate that testimony either
(inaudible) meaningful. But the problem is, I don’t see how that alleged incident
could now be connected to the injury, so I think your case fails.
Dr. Corn cannot produce any peer review or other literature to support his
position as it relates to the description of how these (Inaudible). . . .
It is thus clear that the main thrust of the trial court’s analysis involved using the purported
Daubert hearing as an opportunity to evaluate the strength of plaintiff’s case and opine on the
court’s view of the evidentiary weight to be afforded to Corn’s testimony. This is improper
because
[a] Daubert-type hearing of this kind is not a judicial search for truth. The courts
are unlikely to be capable of achieving a degree of scientific knowledge that
scientists cannot. An evidentiary hearing under MRE 702 and MCL 600.2955 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. The
courts are not in the business of resolving scientific disputes. [Chapin, 274 Mich
App at 139 (opinion by DAVIS, J.).]
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To the extent the trial court apparently placed emphasis on the lack of peer-reviewed
articles cited by Corn, which in itself is one of the proper considerations, the trial court erred by
treating that fact as dispositive and by failing to consider or address the other factors. See Elher,
499 Mich at 23 (“A lack of supporting literature, while not dispositive, is an important factor in
determining the admissibility of expert witness testimony.”). The trial court simply stated a
conclusion without providing any analysis. By failing to apply the proper legal framework in
reaching its decision, the trial court erred as a matter of law. Id. at 21. We thus vacate the trial
court’s order and remand for further proceedings not inconsistent with this opinion. See Clerc v
Chippewa Co War Mem Hosp, 477 Mich 1067, 1068; 729 NW2d 221 (2007) (remanding to the
trial court for a “proper inquiry” because the trial court failed to fulfill its gatekeeping role under
MRE 702 where the trial court focused only on “its concern that plaintiff could not present specific
studies on the growth rate of untreated cancer” and “did not consider the range of indices of
reliability listed in MCL 600.2955”).
Vacated and remanded. We do not retain jurisdiction. Plaintiff having prevailed may tax
costs. MCR7.219(A).
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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