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«STATE OF MICHIGAN COURT OF APPEALS WILLIAM GARCIA, personal representative of UNPUBLISHED the Estate of BEVERLY KAY GARCIA, July 21, 2015 ...»

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WILLIAM GARCIA, personal representative of UNPUBLISHED

the Estate of BEVERLY KAY GARCIA, July 21, 2015


v No. 320781

Manistee Circuit Court


SCHMOKE, M.D., Defendants-Appellees, and MUNSON HEALTHCARE and MANISTEE COUNTY, Defendants.

Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.


Can an inadequately treated skin infection caused by streptococcus pneumoniae lead to fatal pneumococcal pneumonia? That is the scientific issue presented in this medical malpractice lawsuit. Plaintiff’s expert witness, Dr. David Goldstein, testified that under the unusual circumstances presented in this case, Beverly Garcia’s incompletely treated skin infection progressed to fatal pneumococcal pneumonia. The circuit court found Dr. Goldstein’s opinion unreliable under MRE 702 and MCL 600.2955 and excluded it. Because plaintiff lacked alternative causation evidence, the court granted summary disposition to defendants.

In reaching its reliability conclusion, the circuit court misunderstood the medical literature produced by Dr. Goldstein and misconstrued the legal principles underlying MRE 702 and MCL 600.2955. More fundamentally, by weighing the credibility of plaintiff’s causation

-1theory against the defense experts’ testimony, the circuit court improperly usurped the role of the factfinder, thereby abusing its discretion. We reverse.


Beverly Garcia was admitted to defendant West Shore Medical Center with swelling of her left ear and redness of the skin on the left side of her face. Her white blood cell count was elevated, signaling an infection. According to Dr. Richard Scharp, Garcia’s skin condition had worsened despite outpatient treatment with Cipro, an oral antibiotic. Dr. Scharp diagnosed erysipelas, the medical term for a bacterial skin infection. Erysipelas is an uncommon disorder.

When it occurs, the offending bacteria most commonly belong to a species called Group A streptococcus. Streptococcus pneumoniae, a different bacterial strain, accounts for a much smaller number of erysipelas cases.1 Streptococcus pneumoniae bacteria normally inhabit the throat and the nose and are the most common bacterial cause of middle ear infections. Erysipelas due to streptococcus pneumoniae has been reported in peer-reviewed medical literature as an uncommon variant of the disease, sometimes associated with chronic middle ear infections, immunosuppression, or connective tissue disorders. Garcia’s medical records indicate that she had frequent left middle ear infections and had been diagnosed with Raynaud’s disease (a connective tissue disorder), rheumatoid arthritis (an autoimmune disease), and was taking Medrol when seen in the emergency room (Medrol is a steroid which may cause immunosuppression). Defendant Raymond Schmoke, M.D., who examined Garcia in the emergency room, noted that her erysipelas was “most likely... caused by a streptococcal infection.” Defendants concede that streptococcus pneumoniae can cause erysipelas. If untreated or treated incorrectly, erysipelas can develop into cellulitis, a deeper infection of the skin and underlying soft tissues. This, too, the defense admits. The defense further acknowledges that worsening cellulitis can progress to bacteremia, which means the presence of bacteria in the blood.

Defendants treated Garcia’s erysipelas with intravenous Kefzol, an antibiotic. The infection worsened. Dr. Schmoke decided that Garcia’s infection was due to the herpes zoster virus rather than to bacteria, and stopped the intravenous Kefzol. Instead, Dr. Schmoke prescribed antiviral therapy. Garcia’s condition improved and Dr. Schmoke discharged her from the hospital. Defendants’ infectious disease expert, Dr. Michael McIlroy, admitted that herpes zoster almost always presents with characteristic blisters called vesicles. None of the physicians who examined Garcia detected any vesicles. Dr. McIlroy agreed that “a very low number” of patients with herpes zoster present without the hallmark rash. Whether Garcia had erysipelas The italicized term streptococcus pneumoniae refers to the bacterial species involved in this case. Streptococcal or streptococcus pneumonia refers to the disease which took Garcia’s life.

-2and cellulitis (plaintiff’s view) or herpes zoster (defendants’ claim), the parties agree that hers was an unusual case.

Four days after she went home from the hospital, Garcia returned to the emergency room complaining of nausea, vomiting, dry heaves, and headache. She told the emergency room physician, “I can’t breathe, I think I’ve got pneumonia.” The emergency physician diagnosed “nausea” precipitated by the antiviral drugs and sent Garcia home with additional medication.

Within a week, Garcia was admitted to the hospital in septic shock. Blood cultures revealed the presence of streptococcus pneumoniae, and chest x-rays demonstrated extensive pneumonia.

Garcia rapidly succumbed to multiorgan failure caused by septic shock and pneumonia.

Plaintiff alleges that defendants incorrectly diagnosed herpes zoster instead of cellulitis or worsening erysipelas and negligently discontinued Garcia’s antibiotic treatment. As a consequence, plaintiff asserts, Garcia’s cellulitis progressed to bacteremia and to sepsis (a severe inflammatory reaction caused by bacteremia), and then to pneumonia. Dr. David Goldstein served as plaintiff’s primary causation expert. Dr. Goldstein is board certified in internal medicine and pulmonology. He received most of his training at Harvard Medical School, has practiced his medical specialties for more than two decades, and teaches internal medicine, pulmonology, and hospital medicine at Florida State University Medical School. Defendants have not challenged Dr. Goldstein’s qualifications to offer causation testimony in this case.

Defendants’ experts asserted at their depositions that an inadequately treated skin infection could not have caused Garcia’s fatal sepsis and pneumonia, as they believe that streptococcus pneumonia cannot be acquired through hematogenous spread.2 The defense experts admitted that streptococcus pneumoniae can cause erysipelas and cellulitis, and that a patient inadequately treated for a streptococcus pneumoniae skin infection can develop bacteremia and sepsis. Defendants’ experts took issue with the third and final link in the causation chain: that streptococcus pneumoniae bacteremia can spread through the bloodstream and infect the lungs, causing pneumonia. According to Dr. Stanley Sherman, a pulmonologist retained by the defense, streptococcus pneumoniae are capable of hematogenous travel to the lungs only in patients with “right-sided endocarditis, where you have bacteria going right into the

distal portions of the lung,” or in patients with septic emboli. Dr. Sherman opined:

“pneumococcal pneumonia does not stem from a skin infection; that doesn’t happen.” Defendants successfully moved for a Daubert3 hearing.

Plaintiff redeposed Dr. Goldstein, eliciting in greater detail the scientific basis for his causation conclusion. Dr. Goldstein explained that although streptococcus pneumoniae bacteria rarely cause skin infections such as erysipelas, the medical literature confirms “it does occur.” Garcia was at particular risk for infection caused by this bacterial species because she suffered from recurrent middle ear infections, Dr. Goldstein explained, which often involve streptococcus Hematogenous means “disseminated by the circulation or through the blood stream.” Dorland’s Illustrated Medical Dictionary (25th ed, 1974), p 689.

Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).

-3pneumoniae. Proper treatment of Garcia’s erysipelas, Dr. Goldstein continued, required 10 days of intravenous antibiotic therapy. Dr. Goldstein maintained that defendants’ decision to prematurely stop the antibiotics led to a deeper skin infection (cellulitis), and then to bacteremia.

“[B]acteremia with strep pneumonia can seed any organ in the body and can cause pneumonia,” he opined.

Dr. Goldstein produced several medical articles supporting that streptococcus pneumoniae is a known cause of erysipelas and cellulitis, and that patients with erysipelas and cellulitis can develop bacteremia. As to the final link in the causation chain, that streptococcus pneumoniae bacteremia can cause fatal pneumonia, Dr. Goldstein primarily relied on three articles published by Medscape. The first, Pneumococcal Infections, states in relevant part, “S pneumoniae can cause a wide variety of clinical symptoms, either by direct extension from the nasopharynx or by invasion and hematogenous spread.” The article identifies “[o]titis media” as a condition that can develop with “direct extension... from the nasopharynx,” and “[b]acteremia,” “[j]oint and bone infections,” “[c]ardiac infections (endocarditis and pericarditis)” and “[s]oft tissue infections (eg, cellulitis, myositis, periorbital cellulitis, and abscess)” as conditions that “may develop with invasion and hematogenous spread of S pneumoniae[.]” The article further explains, “pneumococci may reach normally sterile areas, such as the blood, peritoneum, cerebrospinal fluid, or joint fluid, by hematogenous spread after mucosal invasion.” A second Medscape article, Bacterial Pneumonia, instructs that “[b]acteria from the upper airways or, less commonly, from hematogenous spread, find their way to the lung parenchyma. Once there, a combination of factors (including virulence of the infecting organism, status of the local defenses, and overall health of the patient) may lead to bacterial pneumonia.”4 A third article, Erysipelas in Emergency Medicine Follow-up, lists “pneumonia” as a possible complication of erysipelas. The articles note that immunocompromised patients are at heightened risk for the development of bacteremia. At his Daubert deposition, Dr. Goldstein emphasized that Garcia’s skin infection and its progression to pneumonia were unusual medical events, but scientifically both plausible and likely given the facts of this case.

The defense experts reiterated that streptococcus pneumonia cannot be contracted through bacteremia triggered by a skin infection caused by streptococcus pneumoniae. Dr.

McIlroy, a defense expert, characterized Dr. Goldstein’s theory as “bordering on ludicrous.” Notably, none of the defense experts produced any medical literature refuting Dr. Goldstein’s analysis. Instead, the defense experts contended that the Medscape articles cited by Dr.

We must consider the evidence, including inferences, in the light most favorable to plaintiff.

Given that pneumococcal pneumonia is one of the most common causes of bacterial pneumonia, it logically follows that this article encompasses pneumonias caused by streptococcus pneumoniae among those that can spread hematogenously. The inference that we have drawn from the article is entirely reasonable. See Debano-Griffin v Lake County, 493 Mich 167, 181NW2d 634 (2013).

-4- Goldstein were not “reliable” or “peer reviewed,” although the latter claim is manifestly incorrect.5 Analyzing the factors listed in MCL 600.2955(1), the circuit court found that plaintiff failed to demonstrate that Dr. Goldstein’s testimony had “been subjected to scientific testing and replication,” and made no showing that Dr. Goldstein’s specific opinion had been subjected to “direct peer review or publication.” The defense experts’ disagreement with Dr. Goldstein, the court continued, evidenced that the latter’s opinion is not generally accepted in the relevant medical community. Nor was “the basis” for Dr. Goldstein’s opinion reliable, the court found, as other experts in his field would not use it to reach the type of opinion Dr. Goldstein proffered.

As to the final factor, MCL 600.2955(g), the court summarized:

And the last factor is factor (g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation. And, of course, there is some publication that talks about the occurrence here and that publication is general and generic. And as [defense counsel] points out, if you step back you can see that there are articles that say that the infection in the blood, the circumstances in the blood can cause the pneumonia that’s caused here, bacteremia that’s there. However, I can’t find that factor (g) supports admission of the testimony.

Having determined that every § 2955 factor it considered weighed against admissibility, the court granted defendants’ motion to exclude Dr. Goldstein’s testimony. Because plaintiff could not prove proximate causation without Dr. Goldstein’s assistance, the circuit court granted summary disposition to defendants pursuant to MCR 2.116(C)(10).


This Court reviews for an abuse of discretion a circuit court’s evidentiary rulings. People v Farquharson, 274 Mich App 268, 271; 731 NW2d 797 (2007). A circuit court’s interpretation of the requirements of Rule 702 and MCL 600.2955, however, is subject to de novo review.

Elher v Misra, 308 Mich App 276, 288; 863 NW2d 722 (2014). Thus, de novo review is appropriate when this Court assesses whether the circuit court performed its gatekeeping role in conformity with the legal principles articulated in Gilbert v DaimlerChrysler Corp, 470 Mich 749; 685 NW2d 391 (2004), in which our Supreme Court adopted the Daubert framework.

Medscape is an “open access” medical journal, which means that it “provide[s] access to trusted articles and data at no cost.” The End of Peer Review and Traditional Publishing as We The Medscape Journal of Medicine, November 24, 2008, Know It, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2605128/ (accessed July 9, 2015). The articles cited by Dr. Goldstein identify the physicians who reviewed them. The reviewing physicians are listed at the end of the articles. For example, the Pneumococcal Infections article was reviewed by Thomas E. Herchline, M.D., a Professor of Medicine at Wright State University, Burke A. Cunha, M.D., a Professor of Medicine at the State University of New York School of Medicine at Stony Brook, and others.

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