Elher v. Misra, — N.W.2d — 2016 WL 483425 (Mich. 2016)
Expert witnesses testifying in medical malpractice cases focus on three issues: negligence, causation and damage. Experts testifying about a physician’s negligence are fact witnesses, whose role is twofold. First, they must identify the profession’s practices, protocols and customs that the physician ought to have followed in treating the patient. Second, they must identify the physician’s deviation from or compliance with those practices, protocols and customs. See Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1209-13 (2012).
Such experts do not testify about findings generated through application of scientific methods. For that reason, Federal Rule of Evidence 702 and its state equivalents do not apply. These rules, guided by the Daubert doctrine, only apply to experts testifying about damage and causation, and the same is true about state rules guided by Frye (See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Frye v. United States 293 F. 1013 (D.C. Cir. 1923)).
In Elher v. Misra, — N.W.2d — 2016 WL 483425 (Mich. 2016), the Michigan Supreme Court applied the Daubert multifactor test (incorporated in Michigan Rule of Evidence 702) to disqualify an expert who came to identify the medical profession’s standard of conduct.
This test requires the trial court to examine the following:
(a) Whether the opinion and its basis have been subjected to scientific testing and replication.
(b) Whether the opinion and its basis have been subjected to peer review publication.
(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.
(d) The known or potential error rate of the opinion and its basis.
(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.
(g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation.
This test does not apply to fact witnesses testifying about professional standards of conduct, and its use by the Michigan Supreme Court was wrong. Happily, this decision was a harmless error because the disqualified expert failed to identify the accepted standard and even admitted that “he knew of no one that shared his opinion.”