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Court of Appeals reverses trial judge; reinstates poisoned patient's causation expert

Teri Walters was accidentally poisoned by her dentist, Eaton County's Donald S. Falik.  Falik's receptionist gave Walters dental etching solution--which should be limited to a 20 second exposure--instead of tooth whitening solution.  After using the inappropriate solution overnight, Walters developed a constellation of symptoms that led to the diagnosis of a severe, chronic, life-shortening disease known as Wegener's granulomatosis (WG).  The trial judge ruled that Walters was entitled to summary disposition with regard to Falik's liability defense, but then ruled that her expert could not testify about the damages she had suffered as a result of the accidental poisoning.  She appealed.

The higher court reviewed the extensive documentation that supported the proposed expert witness's opinion, addressing each of the eight factors that supported his judgment.  It noted that while there were no existing studies that documented the development of WG after exposure to phosphoric acid--the pertinent chemical in the etching solution--there was strong support for causation resulting from a combination of genetic disposition and environmental exposure.  Directly exposing patients to phosphoric acid would be unethical, so the expert relied upon analogous exposures and a wealth of circumstantial evidence, including "textbook timing;" Walters' overwhelming immune response; the grossly inappropriate length of exposure to the chemical; the caustic properties of the solution; and analogical evaluation of scientific literature.  Based on this evidence, the high court ruled that the trial judge had erred in ruling the expert's testimony inadmissible.  Shockingly, Judge Patrick Meter dissented and would have ruled that the trial judge's decision was not an abuse of discretion.  In the same month, Meter also dissented from another Court of Appeals' panel's holding that refused to reward a malpractice insurer's "gamesmanship" in responding to a demand for patient records.  We guess his biases overcome the facts on a regular basis.

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