Background
Sunantra Kirk underwent a total knee arthroplasty performed by Dr. Benjamin Harper of River Valley Orthopedics PC. During the surgery, her popliteal artery was damaged and required emergency repair by a vascular surgeon. Following discharge, Kirk developed numbness and nerve pain treated by a neurologist. She sued Dr. Harper for medical malpractice and River Valley Orthopedics on a vicarious liability theory, alleging that Dr. Harper failed to properly use retractors, misused the surgical saw, and failed to timely recognize the arterial injury.
Kirk’s sole standard-of-care expert, Dr. Glenn Whitted, opined that the arterial injury could not have occurred without negligence and that use of a “plunging” saw technique — as opposed to a “whittling” technique — constituted a breach of the standard of care. Although Dr. Whitted acknowledged he lacked supporting medical literature, he grounded his opinion in the rarity and severity of the injury and the absence of abnormal arterial anatomy. Notably, defendants’ own expert, Dr. Mark Karadsheh, agreed that a plunging technique would breach the standard of care, and Dr. Harper testified at deposition that his saw technique was “a little bit of both” plunging and whittling.
Defendants moved to exclude Dr. Whitted’s testimony as unreliable under MRE 702 and moved for summary disposition under MCR 2.116(C)(10), arguing that without an admissible expert, Kirk could not establish a prima facie malpractice case. The Kent Circuit Court granted both motions. Kirk appealed as of right.
The Court’s Holding
The Michigan Court of Appeals reversed and remanded. The panel held that the trial court abused its discretion in excluding Dr. Whitted’s testimony under MRE 702. While the court acknowledged that a lack of supporting literature is an important factor in assessing reliability, it is not dispositive. Here, Dr. Whitted’s opinion regarding the plunging-versus-whittling distinction was corroborated by defendants’ own expert and was therefore a generally accepted standard in the field — satisfying both MRE 702 and MCL 600.2955.
Because Dr. Whitted’s testimony was improperly excluded, the trial court’s grant of summary disposition necessarily failed as well. The court found that Kirk had presented sufficient expert testimony to establish a prima facie case of medical malpractice, and that a genuine issue of material fact existed as to what saw technique Dr. Harper actually employed and whether abnormal anatomy in Kirk’s knee played any role in the outcome.
Key Takeaways
- Absence of supporting medical literature does not automatically render a plaintiff’s expert opinion inadmissible under MRE 702 — courts must weigh it as one factor among many, not as a dispositive bar.
- Corroboration from a defendant’s own expert can be sufficient to establish that a plaintiff’s expert’s standard-of-care opinion reflects a generally accepted methodology, satisfying both MRE 702 and MCL 600.2955.
- Where a plaintiff’s only standard-of-care expert is improperly excluded, summary disposition under MCR 2.116(C)(10) is equally erroneous — the two rulings rise and fall together.
- A defendant surgeon’s deposition admission that his technique was a hybrid of two approaches — one concededly negligent — is enough to create a genuine issue of material fact precluding summary disposition.
Why It Matters
This decision reinforces that Michigan trial courts functioning as gatekeepers under MRE 702 must conduct a holistic reliability analysis rather than mechanically disqualifying experts who lack published literature. In specialized surgical contexts, consensus among the parties’ own experts about the applicable standard can itself supply the reliability foundation MRE 702 demands.
For plaintiffs’ medical malpractice counsel, the case illustrates the strategic value of locking in defense experts on points of agreement at deposition: Dr. Karadsheh’s concession that a plunging technique is negligent effectively validated Dr. Whitted’s core opinion and provided the appellate hook that unraveled both the exclusion ruling and summary disposition.