Michigan Court of Appeals; Docket #360312; Unpublished
Judges Swartzle, Cavanagh, and Letica; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Causation Issues [§3135]
Issues Regarding Expert Witnesses
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s denial of Defendant Suburban Mobility Authority for Regional Transportation’s (“SMART”) motion for summary disposition, in which it sought dismissal of Plaintiff Estate of Terry Harris’s automobile negligence action. The Court of Appeals held that the trial court did not abuse its discretion in finding—following a Daubert hearing—that Harris’s treating doctor’s testimony was based on sufficient facts and data for purposes of MRE 702. The Court further held that a question of fact existed as to whether Harris’s injuries were caused by the subject motor vehicle crash.
Terry Harris was riding as a passenger on a SMART bus when the bus driver rear-ended the vehicle in front of him. Harris treated for back pain with multiple doctors following the crash, and ultimately underwent spinal surgery with Dr. Fernando Diaz. Ultimately, Harris filed an automobile negligence action against SMART, and SMART moved for summary disposition, arguing that Harris’s spinal injuries were all pre-existing. SMART presented evidence that Harris had injured his back as a result of a work injury in 2008 and after a falling off a ladder in 2013 or 2014, as well as the opinions of an orthopedic surgeon and an accident reconstructionist, both of whom asserted that the crash could not have caused Harris’s injuries. Alternatively, SMART requested a Daubert hearing under MRE 702 to challenge whether Dr. Diaz’s expert opinions were based on sufficient facts or data. Notably, by that time, Dr. Diaz had never given his opinions under oath or through an affidavit; he had only averred in his treatment records for Harris that there was a causal connection between Harris’ spinal surgery and the crash. Furthermore, in making its Daubert hearing request to the trial court, SMART emphasized that Dr. Diaz’s opinions were particularly unreliable and not based on sufficient facts or data, given that Harris told Dr. Diaz that he had never injured his back prior to the crash and that the crash occurred while the bus was traveling 45 miles per hour, whereas video evidence showed the bus traveling approximately five miles per hour at the time.
The Court denied SMART’s motion for summary disposition based on Dr. Diaz’s medical records, but granted SMART’s request for a Daubert hearing. Dr. Diaz testified at the hearing, offering his medical opinion that Harris’s spinal injuries were either caused or significantly aggravated as a result of the crash. Importantly, he offered this testimony after watching video of the crash and after being apprised of the previous back injuries Harris failed to disclose during his treatment. When questioned about the medical literature upon which he was basing his causation opinion, Dr. Diaz could not recall any specific literature, but stated—as paraphrased by the Court of Appeals—that “based on standard practices in neurosurgery, literature he had reviewed (but that he did not identify), and his multiple interactions with other experts in the field, that an impact at speeds as low as 5 miles per hour would generate sufficient force to cause injuries like [Harris’s].” Following the hearing and Dr. Diaz’s testimony, the trial court found that his opinion was based on sufficient facts or data, after which it denied SMART’s motion for summary disposition with prejudice and ordered that Dr. Diaz could testify regarding medical causation.
The Court of Appeals affirmed the trial court’s decision to admit Dr. Diaz’s expert opinions regarding causation under MRE 702. In so holding, the Court explained that the trial court acted within its discretion to allow Dr. Diaz’s opinions regarding causation. The Court noted that while Dr. Diaz did not have a complete and detailed medical history or understanding of the crash when he first formed his opinion regarding the cause of Harris’s injuries, he maintained his opinion after being made aware of Harris’s previous back injuries and watching video of the crash (before testifying at the Daubert hearing). The Court stated in pertinent part:
“Here, the trial court found Dr. Diaz’s opinion sufficiently reliable after conducting the Daubert hearing. While Dr. Diaz admitted not having complete and detailed information regarding Terry’s medical history—particularly his history of preexisting back issues—or the bus accident when Terry sought treatment, Dr. Diaz was made aware of Terry’s history and watched the video of the accident before his opinion was admitted. Once fully informed of the circumstances, and regardless of any of Terry’s preexisting issues, Dr. Diaz maintained that the bus accident caused or significantly exacerbated his injuries here. Dr. Diaz specifically testified, based on generally accepted principles in his field and his experience with other experts and applicable medical literature, that Terry’s injuries were consistent with even a low-speed collision. Although Dr. Diaz did not provide specific supporting medical literature, the trial court determined that it was unreasonable to make him specifically recall what studies he relied on when treating Terry six years earlier, and it was satisfied that his opinion had a sufficiently sound factual and scientific basis. It bears repeating that it is within a trial court’s discretion how to determine reliability. Elher, 499 Mich at 25; see also id. at 27 (‘peer-reviewed, published literature is not always necessary or sufficient to meet the requirements of MRE 702’). Under these circumstances, the trial court did not abuse its discretion by admitting Dr. Diaz’s causation opinion. Contra Elher, 499 Mich at 27 (‘[T]he lack of supporting literature, combined with the lack of any other form of support, rendered [the expert]’s opinion unreliable and inadmissible under MRE 702.’) (emphasis added); Edry, 486 Mich at 641 (same).”
The Court of Appeals also affirmed the trial court’s denial of SMART’s motion for summary disposition, holding that a question of fact existed regarding medical causation and that the trial court did not abuse its discretion in ordering that Dr. Diaz’s testimony be admitted. In reaching this holding, the Court explained that a plaintiff must present a causation theory that has some basis in established fact, but that a basis in only slight evidence is not enough. The Court further explained that a plaintiff cannot submit a causation theory that, while factually supported, is, at best, just as possible as another theory. Rather, the plaintiff must present substantial evidence from which a jury may conclude that more likely than not the subject crash caused the injuries at issue. The Court also found it important that “Dr. Diaz never conceded that [Harris’s] injury could have resulted even if there had not been trauma,” and that “Dr. Diaz did not otherwise indicate that some other causation theory was just as likely.” The validity of Dr. Diaz’s opinion, therefore—just as the validity of the opinions of SMART’s two experts—was to be determined by the jury.
“To survive summary disposition, plaintiff’s ‘causation theory must have some basis in established fact. However, a basis in only slight evidence is not enough. Nor is it sufficient to submit a causation theory that, while factually supported, is, at best, just as possible as another theory. Rather,  plaintiff must present substantial evidence from which a jury may conclude that more likely than not,’ the bus accident caused Terry’s injuries. Skinner v Square D Co, 445 Mich 153, 164-165; 516 NW2d 475 (1994). Given Dr. Diaz’s causation opinion—notably following his review of the accident video at the Daubert hearing—in conjunction with Terry’s medical records corroborating his injuries and postaccident treatment, we conclude that reasonable minds could differ on the issue of causation. While defendant submitted contrary causation opinions from its own experts, we agree with the trial court that the disputing opinions should be resolved by a jury at trial. Importantly, Dr. Diaz never conceded that Terry’s injury could have resulted even if there had not been trauma. And Dr. Diaz did not otherwise indicate that some other causation theory was just as likely. Accordingly, the trial court did not err by denying defendant’s motion for summary disposition.”