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«STATE OF MICHIGAN COURT OF APPEALS WILLIAM GARCIA, personal representative of UNPUBLISHED the Estate of BEVERLY KAY GARCIA, July 21, 2015 ...»

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See Kamangar, Bacterial Pneumonia, Medscape Reference: Drugs, Diseases & Procedures, October 12, 2012, p 1 (“Bacteria from the upper airways or, less commonly, from hematogenous spread, find their way to the lung parenchyma. Once there, a combination of factors... may lead to bacterial pneumonia.”). Practicing physicians authored the Medscape articles, and other practicing physicians reviewed and edited them.7 The articles demonstrated that Dr. Goldstein’s theory rested on an accepted scientific foundation; in other words, he did not simply fabricate a causal link between pneumococcal bacteremia in the bloodstream and lung infection. The literature he cited supports that it happens, although rarely.

Rather than viewing this literature and the inferences reasonably drawn from it in the light most favorable to plaintiff, the circuit court gave credence to the defendants’ experts’ opinion that pneumonia caused by streptococcus pneumoniae bacteremia cannot occur, except in two circumstances not pertinent here. This was error not only because the literature says otherwise, but also because in rejecting Dr. Goldstein’s opinion the circuit court weighed the experts’ credibility rather than objectively analyzing the science they presented. The court discounted Dr. Goldstein’s view based on the defense experts’ testimony that Dr. Goldstein was wrong, rather than on an independent examination of the evidence plaintiff presented. Doing so contravened MRE 702 and MCR 2.116(C)(10).

The defense experts, primarily Dr. Sherman, opined that lung infection due to streptococcus pneumonia can occur through hematogenous spread only by way of septic emboli and right-sided endocarditis. Dr. Sherman produced no literature to support this ipse dixit pronouncement. Nor did Dr. Sherman offer any reasoned explanation as to how or why septic emboli or right-sided endocarditis involving streptococcus pneumoniae can cause pneumonia, but hematogenous spread cannot. Defendants insist that because plaintiff bears the burden of demonstrating that Dr. Goldstein’s theory is reliable, defendants were under no obligation to produce any literature contradicting Dr. Goldstein. As a general proposition, we agree that the proponent of scientific evidence shoulders the burden of proving its reliability. However, Defendants assert that the medical literature produced by Dr. Goldstein “is not peer-reviewed and fails to provide an evidence-basis for the statements made.” This statement is incorrect, as the Medscape articles that we have cited specifically state the names of the reviewers, and include citations to other articles. Dr. Kamangar, who authored the article referencing hematogenous spread in bacterial pneumonia, is an associate professor of pulmonary medicine at the University of California, Los Angeles. Dr. Zab Mosenifar, director of pulmonary and critical care medicine at the Cedars Sinai Medical Center, University of California, Los Angeles, served as the primary editor of the article. Other named physicians also reviewed it.

-11where one party alleges that an expert’s conclusions do not follow from a given

data set, the responsibility ultimately falls on that challenging party to inform (via the record) those of us who are not experts on the subject with an understanding of precisely how and why the expert’s conclusions fail to follow from the data set.

Any failure by the challenging party to satisfy this responsibility is at that party’s peril. [Goebel v Denver & Rio Grande Western R Co, 346 F3d 987, 990 (CA 10, 2003).]

See also King v Burlington Northern Santa Fe Ry, 277 Neb 203, 232-233; 762 NW2d 24 (2009).

Here, Dr. Goldstein put forth a causation theory and supported it with medical literature.

Defendants claimed that the literature failed to support the proposition, and propounded a contradictory scientific proposition: that hematogenous spread of streptococcus pneumonia can never cause pneumonia except in two well-defined, irrelvant circumstances. Having affirmatively injected this scientific claim, defendants bore the burden of proving it. The circuit court adopted Dr. Sherman’s view of the science despite that the only evidence supporting it was Dr. Sherman’s say-so. The court exacerbated this error by rejecting the Medscape articles, based again on the defense experts’ authority.8 Moreover, peer-reviewed medical literature conclusively establishing a causal relationship has never been required by any court applying Daubert. Such a rule flies in the face of Daubert’s theme that the admissibility of scientific evidence depends on “good grounds” rather than certainty. Here, peer-reviewed literature supplied “good grounds” for Dr. Goldstein’s causation opinion in this medically unusual case.


The circuit court further faulted Dr. Goldstein’s testimony by finding it deficient under § 2955(1)(e), “[t]he degree to which the opinion and its basis are generally accepted in the relevant expert community.” The court determined that the defense experts’ strenuous rejection of the notion that hematogenously spread streptococcus pneumoniae verified that Dr. Goldstein’s opinion is not generally accepted or reliable. But unlike the Medscape articles, the retained defense experts were far from neutral, objective resources. Indeed, Dr. Sherman testified that 15% of his income derives from serving as an expert witness in “legal matters,” 90% of the time for the defense. Permitting a retained expert like Dr. Sherman to vouch for the beliefs of the “relevant expert community” is inconsistent with Daubert and MRE 702.

At his deposition, Dr. Sherman referred to Medscape as “a low quality medical publication.” In response to plaintiff’s argument that the defense had failed to present articles rebutting Dr.

Goldstein’s theory, Dr. Sherman claimed that “nobody” would publish an article stating that “pneumococcal bacteremia does not lead to pneumonia.” Perhaps Dr. Sherman is correct. But these assertions are not facts—they are opinions. Gatekeeping under MRE 702 does not involve cherry-picking which of several conflicting expert opinions to believe and which to discredit.

Dr. Sherman’s arguments about the articles are for the jury to evaluate, along with the rest of the evidence supporting or contradicting Dr. Goldstein’s theory.

-12The court was tasked with the responsibility of sorting out whether the data, methodology, and literature advanced by Dr. Goldstein supported the conclusion Dr. Goldstein reached. This inquiry required a focus on the case facts, the literature on which Dr. Goldstein relied, and the method Dr. Goldstein used to apply the scientific information in the literature to the facts. Here, however, the court focused on the experts’ ultimate proximate cause conclusions and selected the conclusion it believed rang truer, thereby conflating reliability with persuasiveness.

Where competing “experts’ opinions are supported by evidence and sound scientific reasoning, the question of who is right is a question for the jury.” Milward v Acuity Specialty Prods Group, Inc, 639 F3d 11, 23 (CA 1, 2011). “A factual dispute is best settled by a battle of the experts before the fact finder, not by judicial fiat. Where two credible experts disagree, it is the job of the fact finder, not the trial court, to determine which source is more credible and reliable.” City of Pomona v SQM North America Corp, 750 F3d 1036, 1049 (CA 9, 2014).

Here, published medical literature supports Dr. Goldstein’s causation theory. Even if the intellectual provenance of Dr. Goldstein’s testimony is doubtful, as Dr. Sherman insists, the adversary system is designed to resolve such debates through rigorous cross-examination, the introduction of countervailing evidence, and a jury instruction that plaintiff bears the burden of proof. That the defense experts vigorously disagreed with the Medscape authors and Dr.

Goldstein simply did not render Dr. Goldstein’s opinion unreliable.

Moreover, the “general acceptance” factor incorporated in § 2955(1)(e) generally relates to novel (new) scientific theories and therefore lacks relevance here.9 The “general acceptance” That Dr. Goldstein’s theory is not novel is demonstrated by the following excerpt from an

Indiana case decided in 1919:

On this phase of the case the uncontradicted testimony of the attending physician is that on April 8, 1918, the wound resulting from Buanno’s injury had not fully healed, there being at that time an open sore on the arm about an inch square, which became infected with erysipelas, causing the arm to become swollen to twice its normal size, and that this infection spread “over his neck to the side of his face, and finally developed into streptoccocal pneumonia.” The attending

physician also testified that:

“There was no mistake in the diagnosis of the infection on the arm. It was erysipelas. There could be no such infection without some exterior brasure of the skin. There would have to be some point of entry. In my opinion the primary cause of this infection was the unhealed portion of his injury. It is rather common for pneumonia to follow such infection.” It is our opinion that the evidence fully sustains the finding that Pasqualle Buanno died as a result of the injury he received.... [Ft Wayne Rolling Mill Corp v Buanno, 69 Ind App 464, 465-466; 122 NE 362 (1919).]

-13test for admissibility was announced in Frye v United States, 293 F 1013 (DC Cir, 1923). Frye involved evidence derived from a “crude precursor to the polygraph machine.” Daubert, 509 US at 585. The Supreme Court identified the following “famous (perhaps infamous) passage” as

encapsulating the Frye rule:

“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stage is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” [Id. at 585-586, quoting Frye, 293 F at 1014 (emphasis in original).] FRE 702 superseded the Frye test. In Daubert, the Supreme Court reasoned that Frye

could not be reconciled with the letter or the spirit of the federal rules of evidence:

[A] rigid “general acceptance” requirement would be at odds with the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.” Given the Rules’ permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention “general acceptance,” the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made “general acceptance” the exclusive test for admitting scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials. [Daubert, 509 US at 588-589 (citations omitted).] No objective, verifiable evidence presented to the circuit court addressed whether Dr.

Goldstein’s views lack “general acceptance.” Accordingly, the “general acceptance” factor is not pertinent here, and the circuit court erred by relying on it to exclude Dr. Goldstein’s testimony.


Lastly we consider the circuit court’s determination that despite the “general and generic” statements in the Medscape publications supporting Dr. Goldstein’s methodology, “I can’t find that factor (g) supports admission of the testimony.” Factor (g) concerns whether “the opinion or methodology is relied upon by experts outside of the context of litigation.” The circuit court offered no meaningful explanation for its determination that factor (g) cuts against the admission of Dr. Goldstein’s testimony, particularly in light of its directly contrary conclusion that “there are articles that say the infection in the blood, the circumstances in the blood can cause the pneumonia that’s caused here, bacteremia that’s there.” Medscape is a publication designed to be read by doctors, not lawyers. The Medscape articles demonstrate that Dr. Goldstein’s deductive methodology flows from accepted medical principles that bear no

-14relationship to lawsuits. Simply put, the articles support that an infection caused by streptococcus pneumoniae can spread hematogenously to the lungs. By relying on this factor to exclude Dr. Goldstein’s testimony, the circuit court erred.10

–  –  –

Daubert and its progeny instruct that an inquiry into methodology does not encompass a determination of which expert’s view seems more convincing. Nor does any case law mandate as a precondition of admissibility an expert possess first-hand experience with precisely the same medical condition at issue in the case. Rather, the gatekeeping obligation envisions an inquiry into the soundness of an expert’s underlying methodology. If the thrust of the expert’s reasoning finds purchase in the medical literature, or if the expert has reasonably extrapolated from an established scientific foundation, his or her testimony should be admitted for a jury’s consideration.

Determining whether evidence is truly scientific is not simple. As Judge Alex Kozinski, who authored Daubert II, put it: “Federal judges ruling on the admissibility of expert scientific testimony face a far more complex and daunting task in a post-Daubert world than before.” Daubert II, 43 F3d at 1315. MCL 600.2955 provides circuit courts with helpful guideposts in making this determination. Here, application of the guideposts supports rather than prohibits the admission of Dr. Goldstein’s testimony. We emphasize that neither MRE 702 nor MCL

600.2955 require the party proffering expert testimony to “carry the burden of proving to the judge that the expert’s assessment of the situation is correct.” Ruiz-Troche v Pepsi Cola of Puerto Rico Bottling Co, 161 F3d 77, 85 (CA 1, 1998). The touchstone is reliability, not ultimate accuracy or believability.

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