In a recent decision, the Michigan Court of Appeals (COA) reversed a trial court’s denial of a motion to exclude an independently retained plaintiff’s expert witness in a medical malpractice case (not a Cambridge Medical Expert), underscoring the critical importance of articulating a reliable standard of care. The ruling, Walsh v. Sakwa; MiLW No. 08-109485, serves as a reminder to litigators that expert testimony in Michigan malpractice cases must be firmly grounded in reliable methodology and clearly expressed under MRE 702, MCL 600.2955, and MCL 600.2169. It is crucial to keep the right expert on retainer, as this is pivotal to the success of a case.
Case Background
The dispute stems from a 2013 minimally invasive heart procedure performed at the defendant hospital. During the operation, the anesthesiologist reported that a catheter could no longer be moved freely. This led the defendant physician to perform emergency open-heart surgery to release the catheter.
The plaintiffs, a patient and her husband, filed suit alleging the surgeon breached the standard of care, causing unnecessary pain and suffering, and asserted a derivative loss of consortium claim.
To support their claims, plaintiffs offered expert testimony from a physician who stated that “the standard of care of the operation is not to entrap the catheter” and that suturing the catheter was outside the standard of care. However, the expert admitted to reviewing only one article about this specific catheter type before forming his opinion.
Procedural History
The defendants moved to exclude the expert’s testimony, arguing it failed to reliably establish a standard of care. The trial court denied the motion, but the COA twice reversed on interlocutory appeal, holding that the testimony did not satisfy the reliability factors under Michigan law.
Following the Michigan Supreme Court’s ruling in Danhof v. Fahim, M.D., the case was remanded for reconsideration in light of that precedent. In Danhof, the Court clarified that the absence of published literature does not automatically make expert testimony inadmissible, but trial courts must rigorously evaluate reliability under the statutory and evidentiary framework.
On remand, the COA again concluded the expert’s opinion was inadmissible, not because it lacked supporting literature, but because neither the testimony nor the literature adequately articulated a medical standard of care.
The Court’s Reasoning
The COA emphasized that:
- Expert testimony must clearly define the applicable standard of care.
- Merely asserting that an adverse event “shouldn’t happen” is insufficient under Michigan law.
- Reliance on minimal literature, without a thorough explanation of its connection to the case facts, undermines reliability.
- Unlike in Danhof, the medical event at issue was not rare, and relevant literature existed, yet the expert did not meaningfully integrate it into his standard-of-care analysis.
The court remanded the case to enter an order granting the defendants’ motion to exclude the expert’s testimony. Judge Stephen L. Borrello dissented, asserting that Danhof warranted a reevaluation of the prior conclusions.
Attorney Perspectives
Practitioners offered differing views on the decision’s implications:
- Some see it as a clear warning that Michigan courts will scrutinize whether experts can articulate, not just assert, how and why the standard of care was breached.
- Others express concern that medical literature rarely states a standard of care in explicit terms, and evolving standards often require expert interpretation rather than direct citation.
Key Takeaways for Attorneys
- Vet Expert Opinions Early – Ensure your expert can move beyond conclusory statements and tie their opinion to established, articulated standards.
- Integrate Literature Effectively – While the absence of literature is not fatal, if literature exists, your expert must engage with it substantively.
- Anticipate MRE 702 / MCL 600.2955 Challenges – Prepare for rigorous admissibility scrutiny, especially in high-stakes malpractice litigation.
- Understand the Danhof Impact – While Danhof prevents automatic exclusion based on lack of literature, it reinforces the need for a reasoned reliability analysis.
The Walsh v. Sakwa ruling reinforces that in Michigan malpractice litigation, the success or failure of a case may hinge on the expert’s ability to clearly and reliably define the standard of care and to explain how it applies to the alleged breach.
