How important is scientific literature in a Daubert challenge?
In Wendt v. Bowerman, No. 343612 (Mich. Ct. App. June 11, 2019), the Michigan Court of Appeals upheld the trial court’s decision to exclude the testimony of an expert whose opinions were unsupported by scientific literature, a decision which led to summary judgment in favor of a medical malpractice defendant.
The plaintiff alleged that she suffered nerve damage during knee surgery due to overapplication of anesthesia and that she should not have been given that a sciatic nerve block in light of her obesity and diabetes. She offered the testimony of an anesthesiologist, Dr. Rein, concerning the applicable standard of care and how Dr. Bowerman, the defendant anesthesiologist, breached that standard. Dr. Bowerman moved to exclude the testimony of plaintiff’s expert under Michigan Rule of Evidence 702 (which tracks the familiar Daubert standard), primarily on the grounds that the opinion was unsupported by scientific literature.
Relying heavily on the lack of scientific literature supporting Dr. Rein’s opinions, the Court of Appeals found that Dr. Rein’s proposed testimony had been properly excluded. The court stated:
In the present case, Dr. Rein was unable to cite scientific literature to show that a person with obesity and diabetes was not a good candidate for a sciatic nerve block. Dr. Rein even acknowledged that some diabetics were good candidates for nerve blocks, depending on their size, insulin use, oral agents, the risks, and whether the diabetes was well controlled. Furthermore, Dr. Pappas [defendant’s expert] testified that there was no literature that indicated that patients with obesity and diabetic peripheral neuropathy should not be administered sciatic nerve blocks. Dr. Pappas explained that he and other anesthesiologists at his hospital routinely performed sciatic nerve blocks on patients who were obese and diabetic. Dr. Pappas testified that Dr. Rein’s opinions were not supported by scientific literature, and were not generally accepted within the anesthesiology community. Additionally, the journal articles that plaintiff submitted in support of Dr. Rein’s testimony did not support Dr. Rein’s opinions and, instead, tended to support Dr. Bowerman’s position. In contrast, Dr. Bowerman submitted ample scientific literature supporting not only the conclusion that nerve blocks were the most efficient method for post-TKA pain management, but also that nerve blocks could (and should) be used in obese and diabetic patients.
Therefore, the trial court did not abuse its discretion in finding that Dr. Rein’s opinions were unreliable. His opinions were unsupported by scientific literature and the scientific community, and were based on erroneous assumptions and facts. The trial court properly referenced various factors in MCL 600.2955, including the use of scientific literature, MCL 600.2955(1)(b), whether Dr. Rein’s opinions were generally accepted within the scientific community, MCL 600.2955(1)(e), and whether Dr. Rein’s opinions had been subjected to testing, replication, or review, MCL 600.2955(1)(a). Dr. Rein’s opinions were essentially based only on his own experience, knowledge, and background, but this on its own does not make such opinions reliable under MRE 702.