Opinion

Tabitha Martin v. Covenant Medical Center Inc

Court
Michigan Court of Appeals
Filed
Oct 9, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 30.7%

noting that the expert’s testimony was contradicted by defendant’s expert and published literature

How later courts described this case

  • noting that the expert’s testimony was contradicted by defendant’s expert and published literature

Written by the judges who cited it.

The opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

TABITHA MARTIN, UNPUBLISHED

October 09, 2024

Plaintiff-Appellant, 2:23 PM

v No. 366356

Saginaw Circuit Court

COVENANT MEDICAL CENTER, INC., doing LC No. 19-040924-NH

business as COVENANT HEALTHCARE, doing

business as COVENANT MEDICAL CENTER

HARRISON, doing business as SAGINAW

GENERAL HOSPITAL, COVENANT

HEALTHCARE SYSTEM, and VASIL

MAMALADZE, M.D.,

Defendants-Appellees.

Before: CAMERON, P.J., and K. F. KELLY and GARRETT, JJ.

PER CURIAM.

In this medical malpractice case, we consider the trial court’s ruling on the reliability of

plaintiff Tabitha Martin’s expert witness testimony, and its order granting summary disposition to

defendants, Covenant Medical Center, Inc., Covenant Healthcare System (collectively, Covenant),

and Dr. Vasil Mamaladze pursuant to MCR 2.116(C)(10). We hold that the trial court did not

abuse its discretion by excluding Dr. Ruchir Gupta’s testimony and that it did not err by granting

summary disposition to defendants. For those reasons, we affirm.

I. FACTUAL BACKGROUND

Martin fell and injured her knee in November 2016, and she underwent knee-replacement

surgery in in May 2017. As part of the surgery, Dr. Mamaladze performed an ultrasound-guided

adductor-canal block for postoperative pain control. An adductor-canal block affects the

saphenous nerve, which is a sensorial nerve that does not control motor function. Dr. Mamaladze

and the registered nurse who assisted him testified that Dr. Mamaladze inserted the needle at the

border of the lower third and middle third of Martin’s thigh. All of the doctors in this case agreed

that the location of the insertion was correct to perform an adductor-canal block. Dr. Mamaladze

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took two ultrasound images during the procedure, one before the medication was injected and one

after.

Martin testified at her deposition that she remembered waking from surgery and stating

that she could not feel her leg. According to Martin, that day and the following day, she could not

lift her feet or legs. She further stated that she could not raise her feet off the ground or do anything

else with them. Martin also testified that she reported these problems to her nurses.

In contrast, Martin’s medical records disclosed that, on the day of the surgery and the day

after, Martin “ambulated” to the bathroom with assistance.1 Her medical record also stated that,

at a physical therapy session, Martin’s circulation, motor function, and sensation were intact. At

a two-week postoperative visit, Martin had full knee-extension and “50 flexion.” But in June 2017,

Martin’s medical record indicated she had zero extension, 70 flexion, and could not contract her

right quadriceps muscle. An electromyography (EMG) report showed that Martin had femoral-

nerve palsy.2 For purposes of this appeal, no party disputes that Martin suffers from femoral-nerve

palsy.

In December 2020, Dr. Shawn Achtman conducted an independent medical evaluation and

reported that Martin had “0/5 hip flexion on right” and “knee extension 4/5 on the right.” Dr.

Achtman concluded that Martin “developed a right femoral nerve palsy status post right total knee

arthroplasty” in May 2017. Dr. Achtman testified that, although Martin’s EMG showed femoral-

nerve palsy, he could not determine the likely cause.

Martin filed her medical malpractice complaint against Dr. Mamaladze and Covenant in

November 2019. In December 2021, defendants moved for summary disposition under MCR

2.116(C)(10). Defendants took the position that Martin’s femoral nerve injury was located at a

point before the nerve bifurcated (i.e., branched) into the adductor canal. Given that location,

defendants maintained that it was anatomically impossible for Dr. Mamaladze to strike Martin’s

femoral nerve while performing an adductor-canal block, that no medical literature or reliable

science supported Martin’s claim that an adductor-canal block could cause femoral-nerve palsy,

and that Martin’s expert, Dr. Gupta, admitted that he had never heard of a diagnosis of femoral-

nerve palsy resulting from an adductor-canal block. Defendants further argued that, because

Martin could not demonstrate with any medical reliability that an adductor-canal block can cause

femoral-nerve palsy, she could not show that defendants’ alleged negligence caused her injury. In

the alternative, defendants requested an evidentiary hearing pursuant to Daubert v Merrell Dow

Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993) for the court to consider the

reliability of Dr. Gupta’s opinion testimony on the cause of Martin’s femoral-nerve palsy.

1

When referring to a patient, to be ambulatory is to be “able to walk about and not bedridden.”

Merriam-Webster’s Collegiate Dictionary (11th ed).

2

As described in an article admitted at the evidentiary hearing, electrodiagnostic studies, such as

an EMG, “can locate the injury, but they do not determine what caused the injury.” H. David

Hardman, M.D., Evaluation and Management of Neurological Complications after Peripheral

Nerve Block, 42 No 18 (Current Rev for Nurse Anesthetists) (2020), at 224.

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The trial court conducted a Daubert hearing and, in a written opinion and order, ultimately

ruled that Dr. Gupta’s testimony did not meet standards of reliability and was, therefore,

inadmissible. MRE 702; MCL 600.2955. In the same opinion and order, the trial court granted

defendants’ motion for summary disposition. Martin now appeals the trial court’s order.

II. STANDARDS OF REVIEW

We review for an abuse of discretion a trial court’s decision regarding an evidentiary issue,

including whether the court properly determined that a proposed expert’s testimony was unreliable

and inadmissible. Danhoff v Fahim, ___ Mich ___, ___; ___ NW3d ___ (2024) (Docket

No. 163120); slip op at 11. A trial court abuses its discretion when it makes an error of law or if

its decision “falls outside the range of reasonable and principled outcomes.” Id. at ___; slip op

at 11 (quotation marks and citation omitted). This Court reviews de novo a trial court’s

interpretation of statutes and the rules of evidence. Id. at ___; slip op at 10. When reviewing an

issue de novo, “this Court independently reviews the issue without deference to the lower court.”

Id. at ___; slip op at 10.

III. LEGAL STANDARDS

The Michigan Supreme Court addressed the standards applicable to expert testimony in

medical malpractice cases in Danhoff:

A plaintiff in a medical malpractice action bears the burden of establishing (1) the

applicable standard of care, (2) breach of that standard of care by the defendant, (3)

injury, and (4) proximate causation between the alleged breach and the injury.

[Danhoff, ___ Mich at ___; slip op p 11.]

“Generally, medical malpractice claims require expert testimony regarding the appropriate

standard of care and causation.” Dorsey v Surgical Institute of Mich, LLC, 338 Mich App 199,

231; 979 NW2d 681 (2021). The proponent of the expert’s opinion has the burden to establish its

relevance and admissibility. Danhoff, ___ Mich at ___; slip op pp 11-12. When the parties do not

dispute the relevance of the expert’s opinion, the court’s focus is on the reliability of the testimony

under MCL 600.2955 and MRE 702. Id. at ___; slip op p 12.

Michigan has adopted the test for reliability articulated by the United States Supreme Court

in Daubert, 509 US 579, which is incorporated into MRE 702. Id. at ___; slip op p 12. Under the

Daubert test, the trial court must “make a preliminary assessment of whether the proposed expert’s

testimony is scientifically valid and whether the reasoning and methodology upon which the expert

bases their testimony can be applied to the facts in the case.” Danhoff, ___ Mich at ___; slip op p

13. A court engaged in this inquiry is acting as a gatekeeper. Id. at ___; slip op p 18.

At the time of the trial court’s opinion in this case, MRE 702 provided as follows:

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

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of reliable principles and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.

“The focus, of course, must be solely on principles and methodology, not on the conclusions that

they generate.” Daubert, 509 US at 595.

MCL 600.2955 provides further guidance regarding the admissibility and reliability of

medical-expert testimony. Danhoff, ___ Mich at ___; slip op p 15. MCL 600.2955 states, in

pertinent part, as follows:

(1) In an action for the death of a person or for injury to a person or

property, a scientific opinion rendered by an otherwise qualified expert is not

admissible unless the court determines that the opinion is reliable and will assist

the trier of fact. In making that determination, the court shall examine the opinion

and the basis for the opinion, which basis includes the facts, technique,

methodology, and reasoning relied on by the expert, and shall consider all of the

following factors:

(a) Whether the opinion and its basis have been subjected to scientific

testing and replication.

(b) Whether the opinion and its basis have been subjected to peer review

publication.

(c) The existence and maintenance of generally accepted standards

governing the application and interpretation of a methodology or technique and

whether the opinion and its basis are consistent with those standards.

(d) The known or potential error rate of the opinion and its basis.

(e) The degree to which the opinion and its basis are generally accepted

within the relevant expert community. As used in this subdivision, “relevant expert

community” means individuals who are knowledgeable in the field of study and are

gainfully employed applying that knowledge on the free market.

(f) Whether the basis for the opinion is reliable and whether experts in that

field would rely on the same basis to reach the type of opinion being proffered.

(g) Whether the opinion or methodology is relied upon by experts outside

of the context of litigation.

Not all of the factors listed in MCL 600.2955(1) may be relevant in every case. Elher v Misra,

499 Mich 11, 27; 878 NW2d 790 (2016). Further, our Supreme Court has emphasized that the

ultimate determination of reliability is within the trial court’s discretion:

[E]ven though the United States Supreme Court has stated that, in some cases, “the

relevant reliability concerns may focus upon personal knowledge or experience,”

the Court has also stated that even in those cases, the Daubert factors can be helpful,

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even if all of the factors may not necessarily apply in determining the reliability of

scientific testimony. Accordingly, it bears repeating that it is within a trial court’s

discretion how to determine reliability. [Id. at 25 (citations omitted).]

It is not sufficient to rely only on the expert’s experience and background to establish the reliability

of the expert’s opinion. Danhoff, ___ Mich at ___; slip op p 18.

IV. DISCUSSION

Martin argues that the trial court erred by striking Dr. Gupta’s testimony because it focused

on his conclusions rather than his methods, and that the trial court made findings of fact and

assessed Dr. Gupta’s credibility rather than considering the scientific basis for his opinions. The

record does not support Martin’s claims.

A. TESTIMONY

At the Daubert hearing, Dr. Gupta testified that he did not know the exact location of the

needle during the adductor-canal block because the needle tip did not appear in the ultrasound

image but, according to Dr. Gupta, the needle could have gone out of plane and “further north”

than intended. Dr. Gupta further testified that he relied on Martin’s assertion that she could not

lift her leg the next day, which was not consistent with her medical records.

Dr. Gupta also testified that the report from Martin’s EMG supported his opinion. Dr.

Gupta initially stated that the report did not identify where Martin’s injury was located, but he later

agreed that the EMG report stated that there was an injury to the femoral nerve located in Martin’s

pelvic area. Dr. Gupta believed, however, that the injury happened closer to the groin area. When

asked at the Daubert hearing whether Martin’s medical records referred to her pelvic area, Dr.

Gupta opined that the term “pelvic area” was subjective.

Dr. Gupta testified that he based his opinion that Martin’s injury occurred during the

adductor-canal block on the differential-diagnosis technique. He agreed that making a differential

diagnosis requires considering a patient’s symptoms to determine possible causes and that it is

important to form a wide differential in order to exclude other possible diagnoses before making a

final determination. He agreed that differential diagnoses for Martin’s condition included trauma

at the nerve root, a retroperitoneal hematoma, or a fluid collection along the psoas muscle. He

also explained how he ruled out each of those possible causes.

But when asked whether any other autoimmune or chronic health conditions could cause

peripheral neuropathy, Dr. Gupta testified that this was outside his area of expertise. He further

testified that he had not ruled out neuromuscular disorders, that he was not an expert in

neuromuscular disorders, but that an isolated femoral-nerve palsy would not be caused by a

neuromuscular disorder. When questioned whether he asked Martin if she suffered from meralgia

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paresthetica, Dr. Gupta testified, “I didn’t ask for any of those records.”3 Dr. Gupta testified at his

deposition that he did not examine Martin and had no plans to do so, and he agreed that he had not

reviewed certain records, including those of Martin’s primary-care physician or her pain-recovery

clinic. Dr. Gupta testified that he did not remember how tall Martin was and that he did not know

how much Martin weighed. Dr. Gupta opined that Martin’s weight was not important.4

Dr. Gupta testified at his deposition, “I don’t have any literature or case study that I would

look at. I’m just looking at common sense. It’s a known complication that if you do not have

good visualization of the needle, it can damage surrounding structures.” At the Daubert hearing,

Dr. Gupta agreed that he did not search for case reports regarding the incidence of saphenous-

nerve injury, but he stated that he was certain that such literature existed. He further opined that

medical publications and literature did not include studies of what happened when physicians

performed procedures incorrectly.

Dr. James Richardson testified at the Daubert hearing that he was board-certified in

electrodiagnostic medicine, that he predominantly conducted research regarding peripheral-nerve

disorders, and that he treated patients with femoral-nerve palsy. Dr. Richardson opined that

Martin’s injury could be postsurgical inflammatory neuropathy, also known as Parsonage-Turner

syndrome. Dr. Richardson described the syndrome as an autoimmune condition that affects nerve

tissue. According to Dr. Richardson, Parsonage-Turner syndrome was consistent with Martin’s

condition, and it did not appear that any doctor had considered postsurgical inflammatory

neuropathy as part of a differential diagnosis. Dr. Richardson also testified that having a high BMI

was a risk factor for postsurgical inflammatory neuropathy. Martin’s medical records show that,

at the time surgery, she was obese. Dr. Richardson further opined that a single mechanical injury

would not result in Martin’s knee extensors improving when her hip extensors did not improve.

At his deposition, Dr. Mamaladze testified that he researched literature for complications

related to peripheral-nerve blocks and adductor-canal blocks. The trial court admitted those

publications at the Daubert hearing. Notably, the articles stated that high BMI is correlated with

peripheral-nerve injury following surgery, including postsurgical inflammatory neuropathy.

Further, one article emphasized that there was no data to support that ultrasound guidance reduced

the risk of neuraxial injury and that adequate images of needle-nerve interface were not

consistently obtained by ultrasound operators.

3

Meralgia paresthetica is caused by compression of the lateral femoral cutaneous nerve;

compression of the nerve can cause numbness, tingling, pain, or a burning sensation in the outer

thigh. Johns Hopkins Medicine, Meralgia Paresthetica

<https://www.hopkinsmedicine.org/health/conditions-and-diseases/meralgia-paresthetica>

(accessed September 26, 2024).

4

In contrast, Dr. Mamaladze testified at his deposition that obesity is a chronic, stable medical

condition that is a risk-factor related to anesthesia. Medical literature that defendants submitted

during the Daubert hearing stated that obesity is frequently correlated with a higher incidence of

femoral-nerve palsy.

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B. THE TRIAL COURT’S RELIABILITY DECISION

The trial court ultimately ruled that Dr. Gupta’s opinion testimony was not reliable or

admissible and the court granted summary disposition to defendants. The court observed that Dr.

Gupta offered no medical literature to support his opinion and that the facts in evidence and

defendants’ literature contradicted his opinion regarding the cause of Martin’s femoral-nerve

palsy. Further, the trial court found that Dr. Gupta’s theory relied on assumptions and his inability

to see the needle on ultrasound images. He also based his opinion on “common sense” and stated

that he did not actually know the location of the needle during Martin’s procedure. The trial court

also noted that Dr. Gupta chose to believe Martin’s testimony over her medical records and had

not reviewed or even asked to see Martin’s preoperative records. The court also concluded that

Dr. Gupta held himself to a higher standard of care than the general medical community by

asserting that a needle must be visible at all times during an ultrasound-guided needle insertion.

The trial court considered Dr. Gupta’s testimony pursuant to Daubert as incorporated in

MRE 702 and concluded that his testimony was not based on sufficient facts or data, that his

opinion was not the product of reliable principles or methods, and that he had not applied the

principles and methods reliably to the facts of the case. The court reiterated that Dr. Gupta

admitted numerous times that he did not read Martin’s full medical records and he did not know

basic facts about her condition, including her weight and BMI. The trial court found it significant

that Dr. Gupta did not examine Martin or review her records because there were plausible,

alternative theories of causation, like postsurgical inflammatory neuropathy, which depended on

factors like the patient’s BMI and medical history. The trial court also observed that Dr. Gupta

based his opinion on a different doctor’s interpretation of Martin’s EMG report, and he founded

his theory that defendants caused her injury on hypothetical needle trajectories even though

medical literature stated that postsurgical inflammatory neuropathy is a possible complication of

anesthetic procedures.

The court also considered whether Dr. Gupta’s testimony was based on reliable principles

and methods. The court noted that Dr. Gupta admitted that he was not a neurologist and did not

perform EMGs. He further admitted that ultrasound-guidance videos would tell a different story

than the two snapshot images he viewed that did not show the location of a needle. The court

further found that Dr. Gupta gave conflicting testimony about whether hip flexion was Martin’s

primary deficit. Accordingly, the court concluded that Dr. Gupta’s testimony was not based on

reliable principles and methods.

The trial court also concluded that Dr. Gupta did not apply the principles and methods

reliably to the facts of the case. Dr. Gupta did not take into account the testimony of the nurse or

Dr. Mamaladze, both of whom testified that they performed the procedure in Martin’s medial

thigh, above the knee. Instead, Dr. Gupta speculated about the needle’s entry point and his

assertions about the orientation of the probe contradicted eyewitness testimony and medical

literature regarding the location where adductor-canal blocks are administered. The trial court

again emphasized in this analysis that Dr. Gupta did not base his differential diagnosis on Martin’s

medical history or a personal examination.

The court also considered the factors in MCL 600.2955 and concluded that the statute

weighed heavily against Martin’s evidence of causation through Dr. Gupta’s testimony. Regarding

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whether the basis of Dr. Gupta’s opinion was subjected to scientific testing and replication, the

trial court observed that Dr. Richardson explained the process of mechanical-lesion healing and

that Martin’s increasing function undermined Dr. Gupta’s theory of causation. Accordingly, Dr.

Gupta’s theory was undermined by the fact that nerve injuries are capable of being replicated,

tested, and observed. Regarding whether Dr. Gupta could identify literature to support his opinion,

he did not find, and had not tried to find, any such support. When considering the existence and

maintenance of generally accepted standards governing the method or technique, the court

reiterated that Dr. Gupta described a different standard than the general medical community.

The trial court further considered that Dr. Gupta could not identify an error rate in his

opinion or its basis and that it would have been helpful for Martin to provide a statistic regarding

how often femoral-nerve complications resulted from adductor-canal blocks. Considering whether

Dr. Gupta’s opinion and its basis were generally accepted in the expert community, the trial court

noted that Dr. Gupta testified that he thought that the anesthesia community was highly supportive

of his position, but that defendant’s experts and the medical literature disagreed with Dr. Gupta’s

assertions about the purpose of ultrasound guidance and whether it was possible to always

visualize a needle on an ultrasound.

The trial court was also not convinced that another expert in the field would rely on Dr.

Gupta’s differential diagnosis. Although the trial court concluded that differential diagnosis is a

valid scientific method, it opined that Dr. Gupta merely described his method as a differential

diagnosis, but his testimony did not support it. The trial court reiterated that Dr. Gupta based his

diagnosis on another doctor’s EMG assessment and Martin’s self-reported symptoms, he could not

rule out neuromuscular causes, and his diagnosis did not take Martin’s preoperative medical

history into consideration. The court opined that Dr. Gupta’s differential diagnosis was incomplete

and that it seemed that he created it for purposes of litigation.

Ultimately, as discussed, the trial court granted defendants’ motion to strike Dr. Gupta as

a proposed expert witness and granted defendants’ motion for summary disposition.

C. ANALYSIS OF RELIABILITY

Again, the proponent of an expert witness must establish that the expert’s “testimony is

based on sufficient facts or data.” MRE 702(b).5 In this case, the trial court focused on whether

Dr. Gupta’s opinion was based on sufficient facts in the record. Dr. Gupta admitted that he did

not read Martin’s full medical record, that he did not examine Martin, and that he did not know

Martin’s full medical history. The trial court was also concerned that Dr. Gupta did not know

basic facts about Martin, including Martin’s BMI, which ample evidence showed could lead to

complications like Martin’s following anesthetic procedures. The trial court also noted that Dr.

5

As noted, the Michigan Rules of Evidence were substantially amended on September 20, 2023,

effective January 1, 2024. See 512 Mich lxiii (2023). We rely on the version of MRE 702 in effect

at the time this matter was decided.

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Gupta based his opinion on a different doctor’s interpretation of Martin’s EMG report and not his

own first-hand interpretation.

Martin contends that the basis for Dr. Gupta’s opinion was his knowledge, training,

education, and experience. Martin is correct that the record reflects that Dr. Gupta has considerable

knowledge, training, and experience. But, as our Supreme Court made clear in Danhoff, standing

alone, an expert’s knowledge, training, and experience is not a sufficient basis to establish the

reliability of the expert’s opinion. See Danhoff, ___ Mich at ___; slip op p 18. Rather, Martin’s

argument on this ground encompasses only one of many factors the court should, and did, consider

when determining whether to admit the testimony of a proposed expert.

Martin also argues that, contrary to the trial court’s ruling, Dr. Gupta’s opinion was based

on objective facts, including the absence of a visible needle tip in the two still ultrasound images.

We disagree.

The record amply supports the trial court’s conclusion that Dr. Gupta’s opinion was based

on speculation. Dr. Gupta opined that, during the adductor-canal block, it was more likely than

not that Dr. Mamaladze’s needle inadvertently entered Martin’s femoral nerve before the nerve

bifurcated. Dr. Gupta testified that he thought that Dr. Mamaladze could have hit Martin’s femoral

nerve before it bifurcated because he did not know exactly where Dr. Mamaladze inserted the

needle, he could not see the needle tip in the ultrasound images, and Dr. Mamaladze could have

gone out of plane and “further north” than intended. Dr. Gupta testified that he based his opinion

on the absence of the needle tip appearing in two still ultrasound images and Martin’s subjective

complaints following surgery. During his deposition, Dr. Gupta admitted that he did not know the

actual location of the needle tip and that there was no picture evidence showing its location.

Similarly, Dr. Gupta testified at the Daubert hearing that he could not see the needle tip and did

not know where it was. He opined that, “in the grand scheme of everything that has happened and

the complaints of the patient . . .” he believed the needle was in a different location because he did

not see “a picture of where [Dr. Mamaladze] went.” The trial court did not err by concluding from

this testimony that Dr. Gupta was speculating about the location of the needle.

The trial court also did not err by concluding that Dr. Gupta did not base his opinion on the

facts of the case, including testimony about the procedure, testimony and literature about anatomy,

and the location on Martin where Dr. Mamaladze performed the adductor-canal block. Dr. Gupta

testified that the proper place to perform an adductor-canal block is the mid-thigh, which is

consistent with the testimony of defendant’s expert, Dr. John Pappas. Further, both Dr.

Mamaladze and the registered nurse who assisted in the procedure testified that this was where Dr.

Mamaladze inserted the needle on Martin. When counsel asked Dr. Gupta whether there was a

way to determine whether the femoral nerve was punctured before bifurcating, Dr. Gupta

responded that a patient’s symptoms would support that determination and that he did not know

of any imaging that could show whether the needle hit the femoral nerve. Again, the record

supports the trial court’s opinion that Dr. Gupta speculated about the location and trajectory of the

needle.

Martin contends that the trial court erred by concluding that Dr. Gupta held himself to a

higher standard of care than other medical professionals regarding whether the tip or shaft of the

needle must be visible on the ultrasound during the entire procedure. Martin argues that this was

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erroneous because the trial court relied on a medical article from 2015. Martin has provided no

legal support for her argument that the trial court could not or should not rely on medical literature

from 2015, which stated that not all operators could obtain adequate images of the interface

between the ultrasound needle and the nerve. In any case, the medical literature was consistent

with testimony at the Daubert hearing.

Dr. Gupta himself agreed that an ultrasound video is an entire process, that a person

performing an out-of-plane approach would only see the tip of the needle, and that an out-of-plane

approach was consistent with the standard of care. Further, defendants’ expert also testified at the

Dabuert hearing that the needle was not visible during the entire procedure but rather came “in

and out of focus as compared to the ultrasound probe.” We do not agree that the trial court erred

by ruling that Dr. Gupta held himself to a higher standard of care than the general medical

community by opining that the needle needed to be visible on the ultrasound at all times.

Martin further asserts that the trial court erred because Dr. Gupta properly based his opinion

on Martin’s testimony. The record shows that, to the contrary, Dr. Gupta did not sufficiently base

his opinion on facts related to Martin.

The trial court concluded that Dr. Gupta did not consider sufficient facts or data because

he admitted that he did not read Martin’s medical records, he lacked knowledge of basic facts

about Martin, and he relied on another doctor’s interpretation of Martin’s EMG. Dr. Gupta

testified that he based his opinion on Martin’s medical records and deposition testimony but,

contrary to Martin’s later assertions, Martin’s medical records stated that she was able to walk

with assistance after surgery and that her knee flexion improved. Dr. Gupta countered that medical

records are not objective data and he speculated that medical professionals must have ignored

Martin’s complaints. Regarding Martin’s EMG report, he testified inconsistently that the report

did not state where the injury occurred and that the report stated that the injury occurred in Martin’s

groin.

According to Martin, the trial court should not have discounted Dr. Gupta’s testimony

merely because he did not personally examine her. This assertion takes one part of the trial court’s

rationale out of context which we decline to do. Graziano v Brater, 342 Mich App 358, 367; 994

NW2d 521 (2022). Further, contrary to Martin’s assertion, Dr. Gupta’s failure to examine Martin

was one of many of reasons the trial court found Dr. Gupta’s testimony unreliable, and we decline

to address this statement out of context.

To the extent Martin asserts that the trial court erred by comparing Dr. Gupta’s opinions

about the EMG report with Dr. Richardson’s, this argument also lacks merit. A trial court may

consider, among other things, that an expert’s opinion was contradicted by the opinion of another

party’s expert, if the opinion was contradicted by published literature on the subject, or if no

literature admitted into evidence supported the expert’s testimony. Elher, 499 Mich at 28. A trial

court is permitted to compare the testimony of different experts, as it did in this case.

Finally, we note that Martin does not discuss numerous other factors that a court may

consider, and that the trial court did consider in this case when determining that Dr. Gupta’s

opinion was unreliable. The trial court considered whether Dr. Gupta’s theory was subjected to

scientific testing and replication, consistent with MCL 600.2955(1)(a); that Dr. Gupta had not

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presented an error rate for his opinion, consistent with MCL 600.2955(1)(d); and whether the basis

for Dr. Gupta’s opinion was generally accepted in the expert community, consistent with MCL

600.2955(1)(e). Martin has not challenged the court’s considerations or conclusions regarding any

of these additional factors.

D. HEARSAY AND RELIANCE ON LITERATURE

Martin argues that the court should not have relied on the medical literature that defendants

introduced because it was hearsay that may only be used for impeachment purposes. This

argument is flawed because the court is not bound by all rules of evidence when making a

preliminary evidentiary ruling.

Hearsay is “a statement, other than the one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Former MRE

801(c).6 Generally, during cross-examination, statements in a treatise, periodical, or pamphlet may

be used for impeachment purposes, but the treatise may not be admitted as an exhibit. Former

MRE 707.7 However, the trial court may answer preliminary questions concerning the

admissibility of evidence, and when doing so, it is not bound by other rules of evidence except

those related to privilege. Former MRE 104(A). The medical literature in this case is not related

to privilege, and accordingly, the general hearsay rules did not preclude the trial court from

considering it for the preliminary purpose of determining whether Dr. Gupta’s testimony was

admissible. Further, the trial court’s consideration of the literature that the parties admitted during

the Daubert hearing is consistent with opinions of the Michigan Supreme Court. See Edry v

Adelman, 486 Mich 634, 640; 786 NW2d 567 (2010) (noting that the expert’s testimony was

contradicted by defendant’s expert and published literature); Elher, 499 Mich at 28 (same). There

is no basis from which to conclude that the general rule that permits the trial court to consider

evidence that would be otherwise inadmissible when ruling on the admissibility of evidence does

not apply under these circumstances.

Plaintiff also argues that the trial court erred by discounting Dr. Gupta’s opinion because

peer-reviewed, published literature is not always necessary for admission of an expert’s opinion

under former MRE 702. However, the trial court’s opinion clearly stated that this was not a

determining factor in its decision.

6

As noted, the Michigan Rules of Evidence were substantially amended effective January 1,

2024. See 512 Mich lxiii (2023). Although the specific language of MRE 801(c) changed, no

party argues that the amended language altered the hearsay rule applicable at the time of the court’s

May 11, 2023 opinion. The current language also appears to be consistent with historical

applications of the hearsay rule. See, e.g., People v Musser, 494 Mich 337, 350; 835 NW2d 319

(2013).

7

Again, the language of MRE 707 was substantially altered by the recent updates to the Michigan

Rules of Evidence. However, the current language appears consistent with historical applications

of the learned-treatise rule. See, e.g., Hilgendorf v St John Hosp & Med Ctr Corp, 245 Mich App

670, 701-705; 630 NW2d 356 (2001).

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Again, it is well-established that the appellant must address the basis of the trial court’s

decision. Derderian, 263 Mich App at 381. In this case, the court explicitly stated that “[p]eer

reviewed, published literature is not always necessary or sufficient to meet the requirements of

MRE 702, but the lack of supporting literature, combined with his singular reliance on his own

hypothetical and speculative depiction, renders Dr. Gupta’s opinion unreliable and inadmissible

under MRE 702.” The trial court determined that Dr. Gupta had not addressed whether his opinion

or its basis was subjected to peer review publication. The trial court observed that Dr. Gupta was

unable to identify any supporting literature, he admitted that he did not try to find any, and that he

did not address the literature defendants provided; instead, Dr. Gupta conjectured that literature

might potentially exist. We conclude that the trial court applied the correct standard, and rather

than basing its holding on a lack of literature supporting Dr. Gupta’s opinion, it based its decision

in part on Dr. Gupta’s failure to attempt to look for literature or to address the literature that

defendants introduced.

Martin makes a cursory argument that the trial court erred by relying on articles that were

released before the ultrasound technique at issue was used, but this argument is inaccurate. The

trial court relied on an article released by the American Society of Regional Anesthesia and Pain

Medicine in its September-October 2015 volume regarding the possible neurological

complications associated with regional anesthesia. Joseph M. Neal, M.D., et al, The Second ASRA

Practice Advisory on Neurologic Complications Associated with Regional Anesthesia and Pain

Medicine, 40 No. 5 (Am. Soc’y of Regional Anesthesia & Pain Med.) (September-October 2015).

The journal specifically stated that ultrasound guidance was not associated with a reduction of

long-term peripheral-nerve injury. Id. at 417. It also stated that “[t]here are no data to support the

concept that ultrasound guidance of needle placement reduces the risk of neuraxial injury in

patients under general anesthesia or deep sedation.” Id. at 416 at Table 10 (emphasis in original).

It further stated that “[c]urrent ultrasound technology does not have adequate resolution to discern

between” injections in and outside the nerve and that “[a]dequate images of needle-nerve interface

are not consistently obtained by all operators and in all patients.” Id. at 416 at Table 11. The

article concluded that there was no evidence that ultrasound monitoring prevented peripheral-nerve

injury. Id. at 417. As can be seen from this very brief summary, this article extensively addresses

ultrasound guidance. To the extent that Martin takes exception to the age of the article, we have

already addressed this point.

E. DIFFERENTIAL DIAGNOSIS

Plaintiff argues that Dr. Gupta’s use of the differential-diagnosis technique rendered his

causation opinion reliable. We hold that the trial court did not err by recognizing that the

differential-diagnosis technique is a valid scientific method but that Dr. Gupta did not reliably

apply that method to reach his opinion.

Former MRE 702 required the proponent of the expert testimony to establish, among other

things, that “the testimony is the product of reliable principles and methods” and that “the witness

has applied the principles and methods reliably to the facts of the case.” This Court has recognized

that differential diagnosis “is simply a method by which all possible causes of a condition are listed

and then the various causes are ruled out so as to leave the most likely cause or causes of a

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particular patient’s problem.” Dengler v State Farm Mut Ins Co, 135 Mich App 645, 649; 354

NW2d 294 (1984).8

Similarly, federal courts have recognized the method of differential diagnosis. The

decisions of federal courts of appeal are not binding on this Court but may be considered for their

persuasive value. Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004). Federal

courts have acknowledged that “[d]ifferential diagnosis is a common scientific technique, and

federal courts, generally speaking, have recognized that a properly conducted differential diagnosis

is admissible under Daubert.” Clausen v M/V NEW CARISSA, 339 F3d 1049, 1057 (CA 9, 2003).

However, “[s]imply claiming that an expert used the ‘differential diagnosis’ method is not some

incantation that opens the Daubert gate.” Tamraz v Lincoln Elec Co, 620 F3d 665, 674 (CA 6,

2010), quoting Bowers v Norfolk S Corp, 537 F Supp 2d 1343, 1360 (MD Ga, 2007). A court

should consider whether an expert accurately diagnosed the disease, reliably considered and ruled

in the possible causes, and reliably considered and ruled out the rejected causes. Tamraz, 620 F3d

at 674. These decisions are consistent with former MRE 702, which requires a court to consider

whether the testimony is the product of reliable principles and methods and whether the expert

applied that method reliably to the facts of the case.

In this case, the trial court did not reject differential diagnosis as a valid scientific

technique. Instead, the trial court found that Dr. Gupta’s application was flawed because his

differential diagnosis was not comprehensive and was, instead, incomplete. As discussed, the trial

court reasoned that Dr. Gupta did not know basic facts about Martin and that he did not personally

examine her or review all of her records. This was significant in light of alternative, plausible

theories of causation, including postsurgical inflammatory neuropathy, which required knowing a

patient’s BMI and complete medical history. The trial court also noted that Dr. Gupta did not rule

out other types of lesions on the femoral nerve and had not asked to review her preoperative records

to determine if she was suffering from meralgia paresthetica.

Again, the trial court’s rulings are supported by the record. Dr. Gupta agreed that it was

important to have a wide differential when making a differential diagnosis. He testified that he

ruled out diagnoses of trauma at the nerve root, a retroperitoneal hematoma, or a fluid collection

along the psoas muscle. However, when asked whether any other autoimmune or chronic health

conditions could cause peripheral neuropathy, Dr. Gupta testified that that was outside his area of

expertise. However, the record reflects that an autoimmune condition exists that could have caused

Martin’s injury, as mentioned in two of the articles provided by defendants, and as explained by

Dr. Richardson. It is irrelevant whether this condition in fact caused Martin’s injury; the question

is whether this potential cause was recognized and ruled out as part of Dr. Gupta’s differential

diagnosis. But Dr. Gupta did not consider autoimmune disorders, he testified that he was not an

8

We acknowledge that this Court should not treat an opinion decided before November 1, 1990,

as binding. Stegall v Resource Tech Corp, ___ Mich ___, ___ n 10; ___ NW3d ___ (2024) (Docket

No. 165450); slip op p 18 n 10. However, important prudential considerations, such as the length

of time since an opinion was issued and public reliance, may support this Court following a

decision released before this date. 2000 Baum Family Trust v Babel, 488 Mich 136, 180 n 26; 793

NW2d 633 (2010). We have found no basis to depart from Dengler.

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expert on neuromuscular disorders, and he did not address the risks of the chronic health condition

of morbid obesity, which plaintiff had at the time of her surgery. Scientific literature supported

that a patient’s BMI is an important risk factor related to anesthesia. However, Dr. Gupta did not

know how tall Martin was or how much she weighed, and he instead opined that her weight was

not important.

On the basis of the record evidence, the trial court’s conclusion that Dr. Gupta did not

conduct a sufficiently reliable differential diagnosis was well within the range of principled

outcomes. Danhoff, ___ Mich ___; slip op at 11. In order to effectively rule out other possible

causes of a plaintiff’s injury, those possibilities must be considered, and Dr. Gupta did not consider

all possible causes of plaintiff’s peripheral-nerve injury. Accordingly, the trial court did not err

by ruling that Dr. Gupta did not reliably apply the differential-diagnosis technique to the facts of

this case.

F. PREMATURITY

Martin argues that defendants’ request to strike Dr. Gupta’s testimony was premature

because it will be confirmed by additional evidence at trial. Contrary to this argument, numerous

cases establish that an expert’s testimony may be stricken and summary disposition may be granted

before trial. See, e.g., Elher, 499 Mich at 28; Edry, 486 Mich at 640. Martin had the opportunity

to develop the record through depositions, documents, and testimony at the Daubert hearing.

Further, if a plaintiff must be allowed to present witnesses and evidence at trial before an expert’s

proposed testimony may be stricken, the Daubert hearing has no purpose.

IV. CONCLUSION

Ultimately, the trial court’s decision that Dr. Gupta’s causation testimony was inadmissible

did not result from an error of law or fall outside the range of principled outcomes. The trial court

issued a thorough opinion considering both MRE 702 and MCL 600.2955(1), and it did not find

facts or attempt to determine scientific truth in its opinion. Instead, the trial court fulfilled its role

as gatekeeper after determining that Dr. Gupta’s proposed testimony was not based on reliable

scientific principles and methods that had been reliably applied to the facts of Martin’s case.

Martin’s argument that the trial court erred by granting summary disposition under MCR

2.116(C)(10) is entirely reliant on her argument that the trial court improperly struck Dr. Gupta’s

testimony. Accordingly, this argument also fails.

Affirmed.

/s/ Thomas C. Cameron

/s/ Kirsten Frank Kelly

/s/ Kristina Robinson Garrett

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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