Opinion
No. 352541
04-29-2021
ESTATE OF MICHAEL WILK, by AMANDA WILK, Next Friend, Plaintiff-Appellee, v. MCLAREN CENTRAL MICHIGAN HOSPITAL, Defendant, and BHEKUMUSA MSIBI, M.D., Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Isabella Circuit Court
LC No. 18-014726-NH Before: JANSEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ. PER CURIAM.
In this medical malpractice action, defendant-appellant, Dr. Bhekumusa Msibi, appeals by leave granted the trial court's order granting plaintiff's motion to strike "the principal causation and timing opinion" testimony of defense expert, Dr. Harvey Kliman. We find the trial court's order in need of clarification, which we will provide, but otherwise we affirm.
I. RELEVANT FACTS AND BACKGROUND
Michael Wilk was born was born by emergency cesarean section at McLaren Central Michigan Hospital. According to Michael's mother, she obtained prenatal care and did not experience any complications during her pregnancy. However, shortly before Michael's birth, the fetal heart monitor strips were concerning, and the treating physician, Dr. Steven Podolsky, sought assistance from defendant, a pediatric physician. Michael was born with meconium (fetal stool) in his airways. After his birth, Michael was intubated and was diagnosed with respiratory distress syndrome. Within hours of his birth, Michael was transferred to Sparrow Hospital for specialized care. The Sparrow staff ordered a blood glucose test, and the results indicated that the baby was hypoglycemic, i.e., he had low blood glucose. Sparrow neonatologist, Dr. Isoken Olomu, noted that hypoglycemia can cause brain injury in newborns. He also noted that the baby's chest x-rays showed evidence of infiltrates, which could indicate infection. Michael sustained permanent brain damage.
Several other individuals or entities were named as defendants in plaintiff's complaint, but because only Dr. Msibi sought leave to appeal, the use of the singular term "defendant" is used to refer to him only.
Meconium aspiration occurs when a baby has breathed fecal material called meconium into the lungs before or around the time of birth.
Plaintiff, Michael's mother and next friend, brought this action against Dr. Msibi, among others, for medical malpractice. Plaintiff alleged that defendants breached the standard of care by failing to check Michael's blood glucose within the first hour after birth, and failing to give him glucose, failing to diagnose and treat him for hypoglycemia, failing to perform repeated glucose tests to determine the proper amount of glucose to prescribe, failing to provide Michael with adequate and effective oxygenation and ventilation, and failing to timely suction and intubate Michael "in lieu of high flow nasal cannula" and to prevent or treat respiratory and metabolic acidosis. Plaintiff alleged that the hypoglycemia caused Michael's brain injury. Defendant does not dispute the nature and extent of Michael's brain damage. Rather, defendant's position is that Michael "suffered from distress in utero (i.e. before birth), that lead to the aspiration of meconium in utero, that caused his current condition." In other words, defendant challenges the cause and timing of Michael's brain injury.
Metabolic acidosis is a buildup of too much acid in the bloodstream. --------
One of defendant's expert witnesses is Dr. Kliman, a board-certified anatomic and clinical pathologist. Although Dr. Kliman was not a pediatric or perinatal pathologist, he has a practice that specialized in studying placentas. Dr. Kliman reviewed deposition testimony, clinical records, and placental slides; he also conducted some independent analysis of the placental slides. Dr. Kliman was expected to provide several opinions: (1) that Michael's placenta was abnormally small relative to Michael's size, (2) that there was evidence showing that Michael had suffered an infection in utero and was suffering stress due to that infection, (3) that the stress of that infection was the cause of Michael passing meconium in utero, (4) that the infection had been present for up to 72 hours before his birth and the meconium was passed within 24 hours of his birth, (5) Michael may have had a genetic abnormality, and (6) that the above-noted combined stresses caused Michael's brain injury. Dr. Kliman emphasized repeatedly during his deposition that his conclusions were based on a combination of factors, some of which might have been of little significance on their own and could only be properly understood in context and in combination. He noted that various of his physical findings were indicative of infection or hypoxia, and they had well-understood onset durations, permitting a deduction of when a hypoxic event or passage of meconium had occurred. Although he understood Michael to have suffered severe brain damage on the basis of reports he had read; he did not look at or interpret head scans or brain imaging, he did not actually know what Michael's particular brain injury was, and he "would refer to the neuroradiologist for that."
Plaintiff moved to exclude Dr. Kliman's causation and timing testimony on several grounds. Plaintiff informed the court that Dr. Kliman had attempted to testify in other cases in Michigan and in a federal district court case in Illinois, and his causation testimony had been struck in those cases. Plaintiff also argued that Dr. Kliman's proposed opinions had not been peer reviewed and were not generally accepted by the placental pathology community. Plaintiff finally argued that Dr. Kliman could not possibly testify as to the cause of Michael's injuries because Dr. Kliman did not know what those injuries actually were, and moreover, Dr. Kliman was not qualified to form an opinion regarding brain injuries or to read radiology images. Thus, even though Michael's brain injuries are not disputed, plaintiff contended that Dr. Kliman's causation and timing testimony was necessarily speculative. Although not entirely clear from the trial court's order, at the hearing plaintiff objected only to the portion of Dr. Kliman's proposed opinion about what actually caused Michael's brain injury and when that injury occurred. Plaintiff acknowledged that Dr. Kliman's other opinions were properly addressed by cross-examination, and plaintiff explicitly disclaimed any admissibility challenge to Dr. Kliman testifying about his findings and observations.
The trial court granted plaintiff's motion "to strike the principal causation and timing opinion" of Dr. Kliman. The court first determined that Dr. Kliman's testimony was not scientifically reliable, partially because it found persuasive three other trial court rulings regarding Dr. Kliman. The court also noted that although defense counsel had explained during the hearing that Dr. Kliman had testified "hundreds of times," he had only testified 18 times in the last 10 years. Discussing plaintiff's argument that Dr. Kliman's opinions should be struck under MRE 702, the court found that any conclusion by Dr. Kliman about the timing and cause of Michael's injury would be speculative. The court also discussed whether the timing and causation opinions should be struck pursuant to MCL 600.2955. The court again discussed the decisions of the other courts, as well as deposition testimony in one of the other cases, and a summary from the American College of Obstetricians and Gynecologists, Neonatal Encephalopathy and Neurologic Outcome (2014), Ch 4, p 55, which provides:
The paucity of large, controlled studies in representative populations means that the magnitude of the increased risk associated with specific placental lesions is difficult to quantify. Until controlled studies are available, it is difficult to reach an evidence-based determination of whether or to what degree a given placental finding has contributed to adverse outcomeThe trial court noted that defendant had presented literature allegedly supporting Dr. Kliman's position, but it found that even if defendants could show that other experts in the relevant field agreed with Dr. Kliman's opinions, he was not qualified to testify about them, explaining:
An opinion on causation and timing of a brain injury given by a general pathologist who is not a Board-certified placental pathologist or an expert in neuropathology is clearly not a reliable and generally accepted opinion within the
relevant scientific community. Defendants stated that they would have other experts testifying on the same subject. Therefore, aside from the fact that Dr. Kliman is not qualified to provide his causation and timing opinions, his testimony is not even necessary to the defendants' case. This court grants plaintiff's motion to strike the principal causation and timing opinion of defense expert Dr. Harvey Kliman.
After the trial court denied defendant's motion for reconsideration, defendant filed an interlocutory application for leave to appeal, which this Court granted.
II. CLARIFICATION OF ORDER
As an initial matter, we agree with plaintiff that defendant appears to construe the trial court's order as broader than was likely intended, but from the face of the order, we are sympathetic to defendant's confusion. We therefore observe, by way of clarification, that the order striking a portion of Dr. Kliman's testimony was narrowly limited only to Dr. Kliman's ultimate conclusion that Michael's brain injury was caused by a combination of in utero stresses, including an undersized placenta, an infection up to 72 hours before birth, and passing meconium up to 24 hours before birth. Put another way, the trial court's order did not preclude Dr. Kliman from opining that Michael's placenta was undersized, that Michael suffered from an infection up to 72 hours before birth, that Michael passed meconium up to 24 hours before birth, or that Michael would have undergone stress as a consequence of each of those factors.
Defendant further describes the trial court's order as precluding Dr. Kliman from testifying "that his findings are evidence of hypoxia that can be timed before birth." As plaintiff observes, this is not accurate, in part because the trial court's order made no mention of hypoxia. As noted, plaintiff explicitly disclaimed any challenge to Dr. Kliman's testimony of his findings and observations from the materials he reviewed and the further analysis he conducted of the placental slides. Dr. Kliman's testimony makes clear that he based his conclusion that Michael had suffered from hypoxia at least 24 hours before birth and an infection at least 72 hours before birth based on his own personal findings of, inter alia, nucleated red blood cells in the placenta with no evidence of fetal blood loss, the presence of macrophages containing meconium, the presence of neutrophils in certain umbilical tissue, his knowledge of whether those findings were abnormal and how long after a stressful event they took to develop, and his knowledge of the range of possible causes for those findings. The trial court's order would not preclude any of Dr. Kliman's testimony as to his findings or their significance, including his conclusion that Michael had suffered pre-birth hypoxia. Dr. Kliman is precluded only from opining that any such hypoxia caused Michael's brain injury. We emphasize that this is readily apparent from a review of the record, but courts speak through the orders and judgments actually entered. People v Batten, 9 Mich App 195, 203; 156 NW2d 640 (1967); Foltz v Foltz, 281 Mich 179, 180; 274 NW 755 (1937); see also Piercefield v Remington Arms Co, 375 Mich 85, 90-91; 133 NW2d 129 (1967) (O'Hara, J., dissenting). Without further clarification, the trial court's reference to "strik[ing] the principal causation and timing opinion of" Dr. Kliman could, on its face alone, appear unintentionally overbroad.
III. STANDARD OF REVIEW
The trial court's decision whether to admit evidence is reviewed for an abuse of discretion, but preliminary legal determinations of admissibility are reviewed de novo. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). "The admission or exclusion of evidence because of an erroneous interpretation of law is necessarily an abuse of discretion." Id. To the extent a trial court's decision relies on factual findings, we review those factual findings for clear error, meaning we defer to the trial court unless definitely and firmly convinced the trial court made a mistake. We otherwise review de novo the trial court's determinations of law; but any factual findings made by the trial court in support of its decision are reviewed for clear error, and ultimate discretionary decisions are reviewed for an abuse of that discretion. Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 470-472; 719 NW2d 19 (2006). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." Elher, 499 Mich at 21 (quotation omitted).
IV. ADMISSIBILITY OF EXPERT TESTIMONY
The proponent of expert testimony must establish its relevance and admissibility. Elher, 499 Mich at 21-22. In relevant part, the proponent must establish that the expert is qualified under MRE 702, which "requires the circuit court to ensure that each aspect of an expert witness's testimony, including the underlying data and methodology, is reliable." Id. at 22. The proponent must also establish that the expert is qualified under MCL 600.2955(1), which "requires the court to determine whether the expert's opinion is reliable and will assist the trier of fact by examining the opinion and its basis, including the facts, technique, methodology, and reasoning relied on by the expert, and by considering seven [enumerated] factors." Id. at 23. Nonetheless, the courts are not the appropriate place to resolve genuine scientific disputes, so a lack of complete acceptance in the scientific community is not, by itself, grounds for excluding an expert's opinion. Chapin v A&L Parts, 274 Mich App 122, 139; 732 NW2d 578 (2007) (DAVIS, J).
MRE 702 provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.In relevant part, plaintiff argued that because Dr. Kliman was not a clinician or a neuropathologist, and he admitted that he did not specifically know the nature of Michael's brain injury, Dr. Kliman necessarily lacked the knowledge, experience, training, or education to provide an opinion on the cause of Michael's brain injuries. The trial court agreed that Dr. Kliman's opinion was speculative, and the trial court also appeared to rely on the fact that Dr. Kliman is not "a Board-certified placental pathologist or an expert in neuropathology" to find that Dr. Kliman's opinions were not accepted in the relevant community and were speculative.
We agree in part with defendant that the trial court's opinion appears flawed insofar as it implies that a board certification in placental pathology exists. We note that defendant initially described Dr. Kliman as a placental pathologist, but defendant expressly corrected that error, and apologized to the trial court, at the hearing. We therefore reject plaintiff's contention that defendant perpetrated a fraud. Indeed, plaintiff concedes that there is no "placental pathologist" subspecialty, yet described one of her own expert witnesses as a "placental pathologist." Finally, to the extent the trial court's opinion suggests, or plaintiff argues, that Dr. Kliman needed to match a specialty or spend a majority of time in clinical practice, they are incorrect, because those principles apply only to standard-of-care witnesses. See Estate of Norczyk v Danek, 326 Mich App 113, 117-118; 931 NW2d 59 (2018); Elher, 499 Mich at 22 n 12. However, although it might be a matter of common knowledge that a lack of oxygen may, very generally, cause some kind of eventual brain damage, it was clear from Dr. Kliman's testimony that he has little medical knowledge about brain injuries or how to interpret brain imaging beyond that of a layperson. Therefore, notwithstanding his expertise to conclude that Michael suffered pre-birth hypoxia, the significance of which might seem obvious, Dr. Kliman did not, in fact, have "specialized knowledge" regarding the narrow and specific issue of what caused Michael's brain injury. Thus, the trial court's ultimate ruling was correct, irrespective of whether any other portion of the trial court's reasoning contained any flaws.
As a consequence, we need not address any of the other challenges defendant presents to the trial court's opinion, nor do we need to address any of plaintiff's other efforts to challenge defendant's challenges. If a trial court's result was correct, this Court will generally affirm, even if the trial court's reasoning was not correct. Mulholland v DEC Internat'l Corp, 432 Mich 395, 411 n 10; 443 NW2d 340 (1989). Additionally, in light of the narrowness of the trial court's holding, we do not think defendant's defense will be seriously impeded. As noted, the trial court's order does not preclude Dr. Kliman from opining that Michael suffered from several in utero stressors that he concluded caused hypoxia. Although Dr. Kliman was not qualified to render expert opinion as to whether in utero hypoxia caused Michael's brain injuries or did so at any particular time, it would hardly be a stretch for the trier of fact to draw the connection if it chooses to believe Dr. Kliman's permissible testimony in the face of plaintiff's cross-examination. Consequently, to the extent the trial court's result depended on any exercise of discretion, we cannot conclude that it fell outside the range of principled outcomes. See Elher, 499 Mich at 21.
The trial court's opinion and order is affirmed. However, because we conclude defendant's confusion about the trial court's holding is not wholly unwarranted, we direct that the parties shall bear their own costs on appeal. MCR 7.219(A).
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause
/s/ Michael F. Gadola