Michigan Court of Appeals Affirms Order Striking Plaintiff’s Sole Standard of Care Expert

(August 16, 2016) In a recent unanimous opinion in Walworth v Metropolitan Hospital, et al (Docket No. 327795), the Michigan Court of Appeals affirmed Kent Court Circuit Court Judge Mark Trusock’s order striking the plaintiff’s sole standard of care expert and dismissing the plaintiffs’ complaint shortly before trial.  Walworth involved the performance of a canaloplasty ear procedure by the defendant otolaryngologist.  The plaintiffs’ sole standard of care expert Dr. Kitain testified during his deposition that he had never performed a canaloplasty procedure during his career and conceded that his experience with the canaloplasty procedure was limited to observing “maybe half a dozen” such procedures during his residency.  Dr. Kitain further testified that he referred patients in need of a canaloplasty to other physicians due to his lack of training and experience in performing the procedure.  Dr. Kitain’s deposition occurred on November 4, 2014.  Trial was subsequently scheduled to commence on June 15, 2015.

On April 13, 2015 the defendants filed a motion to strike Dr. Kitain under MRE 702, MCL 600.2169(2) and MCL 600.2955(1) and to dismiss Plaintiff’s complaint with prejudice.  The defendants argued that while Dr. Kitain met the matching specialty requirements of MCL 600.2169(1) he could not be found qualified under the additional requirements of MRE 702, MCL 600.2169(2) and MCL 600.2955(1) due to his lack of knowledge, training or experience with the canaloplasty procedure.  Judge Trusock agreed with the defendants’ position and found that Dr. Kitain was not qualified as required by MRE 702, 600.2169(2) and MCL 600.2955(1) due to his lack of familiarity and experience with the canaloplasty procedure.  Judge Trusock further found that there was no good cause to allow the plaintiffs the opportunity to retain and disclose a new expert and dismissed the case with prejudice.

On appeal, the Court of Appeals affirmed Judge Trusock’s order in all respects.  First, the Court rejected the plaintiffs’ argument that MRE 702 creates a minimal threshold and that Dr. Kitain met the requirements of MRE 702 merely based on his familiarity with ear anatomy and his professed knowledge of the standard of care.  The Court of Appeals found that there was no evidence to establish that Dr. Kitain had a foundation for his professed knowledge of the standard of care applicable to performance of canaloplasty in light of his deposition testimony regarding his lack of training and experience with the procedure.  Therefore, Dr. Kitain was not qualified under MRE 702 and MCL 600.2169(2) and there was no reliable basis for his professed knowledge of the standard of care under MCR 600.2955(1).

The Court of Appeals also affirmed Judge Trusock’s decision dismissing the plaintiffs’ complaint with prejudice after finding Dr. Kitain unqualified.  The Court first rejected the plaintiffs’ argument that they should have been permitted to proceed to trial without a standard of care expert due to the possibility of obtaining standard of care testimony from the defendant at trial.  The Court held that the plaintiffs could not rely on a single ambiguous statement made by the defendant during his deposition to avoid dismissal particularly where the defendant explained and clarified the ambiguous statement later in his deposition.  The Court explicitly found that the timing of the defendants’ motion (i.e. two months prior to trial) was appropriate under the Michigan Supreme Court opinion in Greathouse v Rhodes.  Finally, the Court held that Judge Trusock acted within his discretion in finding a lack of good cause to allow the plaintiffs the opportunity to disclose a new expert citing the fact that the plaintiffs chose to rely on Dr. Kitain as their sole expert and were (or should have been) aware of his potential lack of qualification long before the filing of the defendants’ motion.

While unpublished, the Walworth opinion is significant to the defense medical malpractice bar in a number of respects.  First, Walworth demonstrates that it is possible to successfully challenge the qualification of an expert witness under MRE 702, MCL 600.2169(2) and MCL 600.2955(1) if the expert lacks training and experience with the surgical procedure or treatment at issue in the case even if the expert meets the matching specialty requirements of MCL 600.2169(1).  The opinion also demonstrates that an expert cannot simply profess to have knowledge of the applicable standard of care if the expert has no foundation from training, education or experience to support the professed knowledge.  Finally, the opinion demonstrates that it is appropriate to challenge an expert’s qualification shortly before trial and that immediate dismissal is an appropriate remedy if the plaintiff’s only standard of care expert is found unqualified shortly before trial.