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«STATE OF MICHIGAN COURT OF APPEALS WILLIAM GARCIA, personal representative of UNPUBLISHED the Estate of BEVERLY KAY GARCIA, July 21, 2015 ...»

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-5Elher, 308 Mich App at 288. If the circuit court correctly executed its gatekeeping role, its ultimate decision to admit or exclude scientific evidence is evaluated for an abuse of discretion.

Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). When a circuit court excludes evidence based on an erroneous interpretation or application of law, it necessarily abuses its discretion. Kidder v Ptacin, 284 Mich App 166, 170; 771 NW2d 806 (2009).

We review de novo a circuit court’s summary disposition ruling, considering the evidence submitted by the parties in the light most favorable to the non-moving party. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).

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MRE 702 governs the admission of expert testimony:

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.

The aspects of MRE 702 at issue here are whether Dr. Goldstein’s testimony draws upon “reliable principles and methods,” and whether he “applied the principles and methods reliably to the facts of the case.” MRE 702 incorporates the admissibility parameters set forth in Daubert. Gilbert, 470 Mich at 782. Daubert focuses on the reliability of an expert’s methodology, not his or her conclusions. To assist judges in performing the requisite analysis, the Supreme Court outlined four factors that might assist judges in gauging reliability: 1) whether the expert’s theory “can be (and has been) tested”; 2) whether the theory “has been subjected to peer review and publication”; 3) the theory’s “known or potential rate of error” and the existence of “standards controlling the technique’s operation”; and 4) the extent to which the methodology or technique employed by the expert is generally accepted in the scientific community. Daubert, 509 US at 593-594.

The analysis required under MRE 702 does not hinge on discovering “absolute truth” or resolving “genuine scientific disputes.” Chapin v A & L Parts, Inc, 274 Mich App 122, 127; 732 NW2d 578 (2007). “[I]t would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science.” Daubert, 509 US at 590. Rather, the trial court is tasked with filtering out unreliable expert evidence. “The inquiry is into whether the opinion is rationally derived from a sound foundation.” Chapin, 274 Mich App at 139. “The standard focuses on the scientific validity of the expert’s methods rather than on the correctness or soundness of the expert’s particular

-6proposed testimony.” People v Unger, 278 Mich App 210, 217-218; 749 NW2d 272 (2008).

The United States Supreme Court emphasized in Daubert:

The inquiry envisioned by Rule 702 is... a flexible one. Its overarching subject is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate. [Daubert, 509 US at 594-595.] In Kumho Tire Co, Ltd v Carmichael, 526 US 137, 152; 119 S Ct 1167; 143 L Ed 2d 238 (1999), the United States Supreme Court revisited Daubert and clarified its teachings. One question presented in Kumho was whether a trial court evaluating proposed engineering expert testimony “may consider several more specific factors that Daubert said might ‘bear on’ a judge’s gatekeeping determination.” Id. at 149 (emphasis in original). The listed factors


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The Supreme Court resolved the inquiry in the following manner: “Emphasizing the word ‘may’ in the question, we answer that question yes.” Id. at 150.

The Court accented that the inquiry under Rule 702 is “ ‘a flexible one’ ” in which the factors cited “do not constitute a ‘definitive checklist or test.’ ” Id. (emphasis in original, citation omitted). Using language especially relevant to the case before us, the Supreme Court continued: “And Daubert adds that the gatekeeping inquiry must be ‘tied to the facts’ of a particular case.” Id. This means that the Daubert factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of the testimony.” Id. The Court stressed that the applicability of the Daubert factors necessarily varies case by case, expert by expert. “Too much depends upon the particular circumstances of the particular case at issue” to impose hard and fast rules. Id. Thus, when screening scientific evidence under MRE 702, a court must determine which factors reasonably measure reliability within a case-specific factual context.

Along with its MRE 702 gatekeeping duties, a trial court must also consider the factors listed in MCL 600.2955(1). Clerc v Chippewa Co War Mem Hosp, 477 Mich 1067, 1068; 729

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(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:

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(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.

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(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 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.

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(2) A novel methodology or form of scientific evidence may be admitted into evidence only if its proponent establishes that it has achieved general scientific acceptance among impartial and disinterested experts in the field.

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Four of the seven factors identified in MCL 600.2955 [subparts (a)-(d)] derive directly from Daubert, 509 US at 593-594, and overlap with MRE 702. This Court has held that each of the statutory factors need not favor the proposed expert’s opinion. Chapin, 274 Mich App at 137 (opinion by DAVIS, J.). It suffices that “the opinion is rationally derived from a sound foundation.” Id. at 139. A similar approach governs the application of FRE 703: “Daubert...

made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged.” Kumho, 526 US at 151.

We turn to the factors discussed by the court.

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MCL 600.2955(1)(a) asks whether an expert’s “opinion and its basis have been subjected to scientific testing and replication.” The circuit court found Dr. Goldstein’s testimony deficient because the conclusions Dr. Goldstein expressed in this case have never undergone scientific testing. We are unsure how Dr. Goldstein’s case-specific causation theory could ever be “subjected to scientific testing and replication.” No reputable physician or scientist we can imagine would infect a patient’s skin with streptococcus pneumoniae, fail to treat the resulting erysipelas or cellulitis, and watch to see what happened next. Nor can we envision a study that would allow untreated erysipelas to progress even to cellulitis. Given the rarity of the conditions at issue, “replication” of the case facts is at best impractical, and at worst dangerous. This factor was irrelevant and should not have informed the circuit court’s judgment.


The circuit court next relied on MCL 600.2955(1)(b), which addresses whether an “opinion and its basis have been subjected to peer review publication.” In its bench ruling, the court rejected that plaintiff had met this guidepost, reasoning: “Certainly the individual steps that have taken place throughout the progression of the plaintiff’s theory have been subjected to that, but no direct peer review or publication with respect to the causation that is attempted to be linked here.” According to the statute’s plain terms, the trial court’s task is to “consider” the factors in assessing reliability. To “consider” means to “1. to look at carefully; examine 2. to think about in order to understand or decide; ponder [to consider a problem] 3. to keep in mind; take into account....” Webster’s New World Dictionary of the American Language (2d College Ed), p

303. The language of § 2955 supports that the listed factors are adjuncts to the gatekeeping process, and not a definitive checklist that must be tallied.

-9We confess some confusion regarding the circuit court’s meaning. By using the term “direct peer review” was the circuit court’s focus on whether Dr. Goldstein’s specific opinion in this case was subjected to peer review? Or did the court intend to convey that in general, Dr.

Goldstein’s causation theory lacked peer review support? Either way, the court erred.

That Dr. Goldstein failed to publish an article setting forth the particular causation theory propounded here is hardly surprising. Garcia’s skin infection and its consequences are unlikely to be of interest to the medical community, given the rarity (one hopes) of inadequately treated erysipelas. Nor is it even remotely likely such a case report would have been published and peer reviewed before Dr. Goldstein gave his deposition testimony. See Daubert v Merrell Dow Pharm, Inc, 43 F3d 1311, 1318 n 9 (CA 9, 1995) (Daubert II) (“There may well be good reasons why a scientific study has not been published. For example, it may be too recent or of insufficiently broad interest.”). Furthermore, anecdotal case reports do not suffice to prove cause and effect. See McClain v Metabolife Int’l, Inc, 401 F3d 1233, 1253-1254 (CA 11, 2005); Jones v United States, 933 F Supp 894, 899 (ND CA, 1996).

In cases involving whether exposure to a marketplace drug or an environmental chemical caused injury, peer-reviewed studies testing causation theories may separate the scientificallyreliable wheat from the statistically-unproven chaff. Here, we deal with an issue more closely akin to pure science than to epidemiologically-proven relationships. Accordingly, as applied in this case, factor (b) contemplates whether peer-reviewed medical literature generally corroborates the scientific principles and methods advanced by an expert. And this record substantiates that it does.

The inquiry mandated by § 2955(1)(b) assists a court in assessing reliability by requiring an examination of whether the proponent of a causation theory can cite “objective, verifiable evidence that the testimony is based on ‘scientifically valid principles.’” Daubert II, 43 F3d at 1317-1318. “One means of showing this is by proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication.” Id. In Edry v Adelman, 486 Mich 634, 641; 786 NW2d 567 (2010), our Supreme Court observed that “peer-reviewed, published literature is not always a necessary or sufficient method of meeting the requirements of MRE 702[.]” In that case, “the lack of any supporting literature, combined with the lack of any other form of support” for the expert’s opinion rendered it unreliable and inadmissible. Id. Notably, in Edry, the challenged expert’s opinion “was contradicted by both the defendant’s oncology expert and the published literature on the subject that was admitted into evidence[.]” Id at 640. “Moreover,” the Supreme Court continued, “no literature was admitted into evidence that supported [the challenged expert’s] testimony.” Id.

It bears emphasis that this case involves a highly unusual constellation of facts. Bacterial skin infections are not rare, but skin infections so advanced that they require hospital admission for intravenous therapy are decidedly uncommon. Streptococcus pneumoniae skin infections that develop into bacteremia are even more unusual, as most skin infections successfully resolve with antibiotic therapy. Thus, the universe of patients akin to Garcia is small indeed, and it is hardly surprising that Dr. Goldstein could cite no studies discussing or describing identical

-10patients. Rather, the salient question is whether the medical literature supports that the methodology Dr. Goldstein employed in reaching his opinion is scientifically sound.

Dr. Goldstein pointed to three articles published in a widely-read medical resource (Medscape) substantiating that when streptococcus pneumoniae bacteria enter the bloodstream, infection may result in the joints and bones, the heart, and the lungs. Hematogenous spread of streptococci pneumoniae, one article pointed out directly, can cause pneumonia, albeit rarely.

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