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A Better Partnership
May 04, 2015

MSC grants mini-oral argument on whether a court must consider all seven factors in MCL 600.2955(1) when determining an expert witness’s reliability

In Cullum v. Lopatin, No. 149955, Cullum sued Dr. Lopatin for medical malpractice after he developed avascular necrosis (AVN) in his right hip bone allegedly following Dr. Lopatin’s steroid treatment of his sinusitis. Cullum alleged that AVN is a well-known potential side effect of that treatment. Cullum submitted two affidavits of merit with his claim. One stated that Dr. Lopatin breached his standard of care; the other stated that the treatment was the probable cause of Cullum’s AVN.  As is frequently the case in medical malpractice actions, Cullum’s case boiled down to a battle of the experts.  The trial court found Cullum’s expert’s testimony to be too speculative.  The Court of Appeals found the trial court’s expert analysis lacking.  The Michigan Supreme Court granted argument on the application for leave on the following issues: (1) whether the trial court was required to consider all of the factors in MCL 600.2955(1) in light of Edry v. Adelman, 486 Mich. 634 (2010); (2) whether the trial court abused its discretion in holding that plaintiff’s expert’s opinion was inadmissible under MRE 702 because it was based on speculation; and (3) whether the Court of Appeals applied the correct standard of review.
 
Dr. Lopatin won on summary disposition at the trial court. He successfully argued that Cullum failed to establish a question of fact as to causation. Cullum’s expert, Dr. McKee, testified that the Medrol Dosepaks were a cause in fact of Cullum’s AVN. Dr. McKee’s opinion was based on that he had published and on his own experiences with patients. Still, the trial court found his testimony to be “speculative and unsupported.” The trial court then granted Dr. Lopatin’s motion for summary disposition.
 
The Court of Appeals found the trial court’s expert-witness analysis wanting. The trial court found that Dr. McKee’s study was insufficient evidence to establish that steroid therapy was a cause in fact of Cullum’s AVN. But the Court of Appeals held that the trial court failed to apply the proper tests under MRE 702 and MCL 600.2955(1). The trial court failed to consider Dr. McKee’s own experience with patients in determining his reliability as an expert. Instead, the trial court isolated Dr. McKee’s study as the entire basis for his opinion. The Court of Appeals held that to be an error.
 
Next, the Court of Appeals held that the trial court failed to apply the expert reliability factors MCL 600.2955(1). That statute provides seven factors that courts must weigh in expert reliability determinations. The trial court did not explicitly mention even one factor in its determination.
 
Finally, the trial court also made improper credibility determinations about the parties’ experts. The Court of Appeals, therefore, reversed the trial court’s grant of summary disposition to Dr. Lopatin.
 
Now Dr. Lopatin has appealed to the Michigan Supreme Court, which has granted mini-oral argument on the following issues: (1) whether the trial court was required to consider all of the factors in MCL 600.2955(1) in light of Edry v. Adelman, 486 Mich. 634 (2010); (2) whether the trial court abused its discretion in holding that plaintiff’s expert’s opinion was inadmissible under MRE 702 because it was based on speculation; and (3) whether the Court of Appeals applied the correct standard of review.
 
The parties have 42 days from April 29, 2015 to submit supplemental briefs on those issues.

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