The Michigan Supreme Court Holds That Experts Cannot Rely Solely On Background And Experience For Reliability When Contradictory Evidence Has Been Presented

Feb 18, 2016

Saurbier

In the newly released opinion Elher v Misra, the Michigan Supreme Court has tightened the evidentiary requirements for admissible expert opinions, holding that an expert’s background and experience may be insufficient to render his opinion admissible as reliable under MRE 702 when the expert “admitted that his opinion was based on his own beliefs, there was no evidence that his opinion was generally accepted within the relevant expert community, there was no peer-reviewed medical literature supporting his opinion, plaintiff failed to provide any other support for [the expert’s] opinion, and defendants submitted contradictory peer-reviewed literature.”  Stated simply: an expert cannot rely solely on his background and experience as evidence of the reliability of his opinion in the face of a contradictory opinion supported by additional evidence of reliability put forth by the opposing party.

In Elher, Plaintiff underwent a laparoscopic cholecystectomy during which the defendant “inadvertently clipped the common bile duct… resulting in Plaintiff having to undergo emergency surgery to remove the clip and repair the duct.” Plaintiff’s only standard of care expert, Dr. Priebe, testified that “it is virtually always malpractice to injure the common bile duct during a laparoscopic cholecystectomy absent extensive inflammation or scarring.” Plaintiff produced no supporting medical literature, supporting opinions from other experts, or any other evidence establishing the reliability of Dr. Priebe’s opinion.  In response, Defendants filed additional affidavits from experts and peer-reviewed publications contradicting Dr. Priebe’s opinion. On motion for summary disposition, the Circuit Court found the absence of 1) any scientific testing and replication, 2) peer-reviewed publications, or 3) general acceptance of Dr. Priebe’s opinion enough to grant summary disposition in Defendants’ favor. In a split opinion in the Court of Appeals, the majority held that the Circuit Court’s finding Priebe’s testimony inadmissible was an incorrect application of MRE 702 and that the three guideposts used to reach that position were irrelevant. The Supreme Court disagreed with the Court of Appeals concluding that “the circuit court did not abuse its discretion by relying on two of the factors listed in MCL 600.2955 and by concluding that Priebe’s opinion was not reliable.”

This is not a full rollback to the Davis-Frye construct, which limited the admissibility of novel scientific evidence by requiring the presenting party to demonstrate general acceptance of the theory or method for admissibility. However, under Elher, an expert cannot rely solely on his experience and background to support his opinion when the opposition has introduced contradictory opinions and support.   Elher does not say that an unsupported expert opinion cannot be admitted absent supporting evidence of reliability; but that a challenged unsupported expert opinion may be excluded for reliability issues if no additional evidence of reliability is offered.

The Supreme Court nicely captured why unsupported expert opinions are problematic concluding that “the concern in relying on Priebe’s personal opinion is that Priebe may have held himself to a higher, or different, standard than that practiced by the medical community at large.”  Experts are not required to demonstrate general acceptance of every opinion but neither can they arbitrarily set a higher standard of care without some supporting evidence of reliability under MCL 600.2955(1).