Court abused its discretion when it struck Plaintiff's experts in medical malpractice case
The Court of Appeals reversed the trial judge and reinstated a medical malpractice case brought by the Estate of Saralyn M. Clerc against Robert Baker, M.D., and the Chippewa County War Memorial Hospital. The trial judge had granted the Defendants summary disposition after ruling that the Estate's causation expert physician and its economic loss expert should be struck. The Court of Appeals concluded that the judge abused his discretion in striking these experts and reinstated the Plaintiff Estate's wrongful death action.
Baker is a radiologist who reviewed the Decedent's lung x-ray in 1997, finding no abnormalities. In 1998, however, Saralyn was diagnosed with lung cancer which claimed her life in March of 1999. Her family filed a lawsuit relying on the testimonyt of two oncology specialists who testified that her probability of survival was sixty percent, if she had been diagnosed in 1997. The specialists testified that based on their "general experience" they could not say with reasonable medical certainty that the decedent's probability of five-year survival was sixty percent, but that the "weighted averages" of five-year survival rates favored that conclusion for patients with Stage I or Stage II lung cancer.
Defendants asked the Court to strike this testimony and the Court concluded that it was not adequately based upon scientific evidence. The Court deemed the oncologist's opinions "mere speculation and conjecture." After striking the expert testimony, the trial judge granted summary disposition since the Plaintiff could no longer present evidence that Baker's mis-diagnosis was a contributing factor in Saralyn's death.
On appeal, in 2007, the Court of Appeals ruled that the trial judge exceeded his authority and should not have struck the experts' testimony without conducting a Davis-Frye hearing. After conducting that hearing, the trial judge reversed his prior order and concluded that the experts' testimony on causation was not speculative, that it was based on sufficient factual data, and the product of reliable principles and methods. It was, therefore, properly admissible.
The Defendants then asked the Court to strike the family's economic expert's testimony about the decedent's future earning capacity and personal consumption. On November 23, 2011, the trial judge held yet another hearing on yet another motion by the Defendants to strike one of the Plaintiff's causation experts, the oncologist Dr. Veach. The judge again reversed himself and again struck the Oncologist's testimony, concluding that it was pure "conjecture and speculation." The family filed another appeal.
The three appellate judges filed an opinion this week unanimously reversing the trial judge's orders striking the Plaintiff's expert testimony. It reviewed the findings from the mandated Davis-Frye hearing conducted to test the foundation for the doctors' opinions. It noted that control studies could not be performed to observe the progression of lung cancer from Stage I to Stage III, and therefore, it was impossible for oncologists to support their opinions about causation with standard scientific research. The stricken testimony was, however, the result of reliable application of scientific principles and methods, by well-qualified experts, and therefore it was admissible to prove causation (or to dis-prove causation if offered by defense experts).
The Court noted that the disputed testimony was offered after the expert evaluated the decedent at Sloan-Kettering Cancer Center, where he practiced oncology, and that the expert formed his opinions and developed supporting inferences through the principled application of known facts. Therefore, the lower court erred when it struck the doctor's testimony as "purely speculative."
The appellate court then adressed the ruling striking the family's economic expert. The trial judge had concluded that since loss of "financial support" is the only item of economic damages which a family can recover under the Wrongful Death Act, it was unduly prejudicial to the defendants to allow the family to offer evidence of the Decedent's future earnings. The family argued that it could not prove lost support without first establishing the decedent's likely earnings. The Court of Appeals agreed and ruled that the trial judge's absurd decision to the contrary had been unfair to the victim's family. Perhaps, some day, this 16-year old death case based on an acknowledged mis-diagnosis will go to trial. We hope it is within Saralyn's immediate family's lifetime.