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Michigan (last Shepardized on 9/26/04)

    The attorney monitoring Michigan state law decisions for this site is M. Sean Fosmire, a shareholder in the law firm Garan Lucow Miller.

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Michigan Supreme Court

Craig v. Oakwood Hosp., 684 N.W.2d 296 (Mich. 2004).  Malpractice plaintiff alleges that his cerebral palsy was caused by administration of drug Pitocin to mother during labor, causing intense contractions, subjecting him to head trauma.  In support, plaintiff offers causation testimony from Dr. Ronald Gabriel.  Defendants move to exclude testimony or, alternatively, for Davis-Frye hearing.  Trial court denies motion and declines to convene hearing, on ground that defendants have not shown that testimony relies on any novel scientific theory.  Jury finds for plaintiff.  Court of appeals affirms, and Supreme Court grants review.  Admissibility reversed.  Trial court erred in concluding that it need evaluate admissibility of expert testimony only if theories on which it is based are novel.  Trial courts must discharge gatekeeping function whenever admissibility of expert evidence is challenged.  Trial court also erred in assigning burden of persuasion on admissibility to defendants.  That burden belongs to testimony's proponent, and medical literature offered by plaintiff here did not support witness's causal theory.  Remand for new trial is unnecessary, because plaintiff failed in any event to show breach of legal duty.

Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 685 N.W.2d 391 (2004).  In sexual harassment suit, plaintiff offers testimony from social worker Steven Hnat, who opines over defendant's objection that plaintiff's harassment will cause relapse of her alcoholism, acute medical complications, and painful death.  Jury awards damages of $21 million.  Admissibility reversed.  Expert was wholly without requisite medical qualifications to offer his prognosis, and moreover testified falsely about such credentials as he did have.  Trial court failed to discharge its gatekeeping obligations.  Reversed and remanded for new trial.

Michigan Court of Appeals

Longhini v. Michigan Medical, P.C., No. 243124 (Mich. Ct. App. Apr. 29, 2004) (unpublished).  To correct problems including occasional incontinence, plaintiff undergoes transurethral resection of prostate ("TURP").  Following surgery, patient experiences continued and more severe incontinence.  On visiting Mayo Clinic, plaintiff learns that his external sphincter is absent.  Blaming "inappropriate cutting," plaintiff brings malpractice action.  Defendants offer expert testimony that plaintiff's sphincter injury could have been caused by heat and/or electrical charge from Vaportrode loop (device used in surgery), which may have irritated nerve in external sphincter, causing it to remain open and unable to restrict.  Plaintiff seeks to exclude Vaportrode testimony as unreliable.  Trial court denies motion because testimony does not offer theory about what actually happened but merely one possible explanation of what might have happened.  Judgment for defendants is entered following jury trial.  Admissibility affirmed.  Defendants do not face lower standard for admissibility of expert evidence merely because they are defendants rather than plaintiffs, nor because testimony was offered as one possible causal explanation rather than as opinion on true cause.  But Vaportrode theory was supported by underlying principles enjoying widespread acceptance, and plaintiffs' own experts conceded its possibility.

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