             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



    ESTATE OF DIANE M. SMITH, by WALTER R.                           UNPUBLISHED
    SMITH, Personal Representative,                                  February 18, 2020

                Plaintiff-Appellee,

    v                                                                No. 343667
                                                                     Genesee Circuit Court
    KARSTEN H. FLIEGNER, M.D., GENESYS                               LC No. 17-108694-NH
    HEALTH SYSTEM, GENESYS REGIONAL
    MEDICAL CENTER, doing business as
    GENESYS HEART INSTITUTE, GENESYS
    PRACTICE PARTNERS, INC., doing business as
    GENESYS HEART INSTITUTE PHYSICIAN
    GROUP, and GENESYS AMBULATORY
    HEALTH SERVICES, INC., doing business as
    GENESYS HEART INSTITUTE PHYSICIAN
    GROUP,

                Defendants-Appellants.


Before: MURRAY, C.J., and SWARTZLE and CAMERON, JJ.

PER CURIAM.

       In this medical-malpractice action arising out of the death of Diane M. Smith, defendants
appeal by leave granted1 the trial court’s order denying their motion for summary disposition under
MCR 2.116(C)(10) (no genuine issue of material fact) and their alternative request for a Daubert
hearing. We vacate the order appealed and remand for further proceedings consistent with this
opinion.




1
 Estate of Diane M Smith v Fliegner, unpublished order of the Court of Appeals, entered
November 13, 2018 (Docket No. 343667).


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                                         I. BACKGROUND

        This medical-malpractice action arises out of the 71-year-old decedent’s death several
weeks after she underwent heart surgery. On May 4, 2015, defendant Dr. Karsten Fliegner
performed the surgery, which involved “an aortic valve replacement and two vessel coronary
artery bypass grafting.” It is undisputed that four drainage tubes (or “drains”) were placed at the
end of the surgery. Two were larger chest tubes, and the other two were “smaller diameter,”
“bilateral Blake drains.” The two larger drains were removed from the decedent before she was
discharged from the hospital on May 11, 2015. The Blake drains, however, were left in place at
the time she was discharged. Physician’s Assistant Christopher Noth indicated that he decided to
discharge the decedent with the Blake drains still in place, without consulting Dr. Fliegner, because
of the amount of fluid that had been draining from them. At his deposition, plaintiff Walter R.
Smith, who is the decedent’s widower, indicated that he saw the Blake drains for the first time
shortly before the decedent was discharged.

         According to Noth, on May 22, 2015, the Blake drains were removed by a medical
assistant. Five days later, the decedent was brought to the emergency room of defendant Genesys
Regional Medical Center, complaining of “worsening shortness of breath, . . . lower extremity
edema and chest heaviness,” among other things. The decedent’s blood pressure was low, and
after she went into respiratory failure, she was intubated and placed on a ventilator. She was
diagnosed with acute cardiogenic shock, severe aortic insufficiency, and pulmonary edema. In
critical condition, she was transferred to Henry Ford Hospital by helicopter, while her condition
continued to deteriorate. A cardiac surgeon determined that the decedent was not a candidate for
further surgical intervention. After consulting with the medical staff about the decedent’s poor
prognosis, her family expressed their desire that she not be resuscitated if she went into cardiac
arrest. She subsequently did so and died.

         The day after the decedent’s death, Dr. Kanu Virani, the deputy-chief-medical examiner
for the Oakland County Medical Examiner’s Office, performed an autopsy. Dr. Virani discovered
a “large amount of pus around the midline chest surgical wound above and behind the sternum
infiltrating the soft tissue.” Also, “[s]ections taken from the chest wall tissue near the surgical
wound show[ed] acute inflammation and necrosis in skeletal muscles and adipose tissue.” Based
on his observations, Dr. Virani concluded that the decedent had “died of post surgical wound
infection,” with “[h]ypertensive and arteriosclerotic heart disease, and obesity . . . contributory.”

        Acting as personal representative of the decedent’s estate, plaintiff filed suit against
defendants, alleging that they, or their agents or employees, had breached the applicable standard
of care by failing to remove the drains from the decedent’s chest within a few days after her
surgery. Plaintiff alleged that it had been “especially important to remove the drains from [the
decedent] because she had a high risk of infection because of her prior history of diabetes, obesity
and radiation to her chest as a result of . . . breast cancer.” Plaintiff also claimed that defendants’
alleged breach of the standard of care “substantially increased the risk of the development of an
insidious post-operative infection,” that it did, in fact, cause the decedent to develop “septic shock
resulting from mediastinitis” (i.e., an infection of the mediastinum), and that the decedent died as
a result. The allegations in plaintiff’s complaint were supported by an affidavit of merit (AOM)
executed by Dr. Louis E. Samuels, who indicated that he is “a board certified surgeon and thoracic


                                                 -2-
surgeon, with a specialty in cardiothoracic surgery, licensed to practice in the State of
Pennsylvania.”

        Following discovery, defendants moved for summary disposition under MCR
2.116(C)(10) or, in the alternative, a Daubert hearing. Defendants argued that plaintiff’s expert
witness regarding causation, Dr. Herbert Tanowitz, had admitted that the decedent’s mediastinitis
either was seeded during the initial surgery or was more likely seeded at that time than at any later
time. Therefore, defendants argued, plaintiffs could not carry their burden of demonstrating that
defendants’ alleged breach of the standard of care—which allegedly occurred days after the
surgery—had proximately caused the decedent’s mediastinitis and her ensuing death. In support,
defendants cited Dr. Tanowitz’s deposition testimony that (1) “[s]ternal wound infections are
usually implanted at the time of the surgery,” (2) “intraoperative wound contamination probably
occurs in virtually all patients” who undergo “a sternotomy” (i.e., a medical procedure in which
the patient’s sternum is opened to provide access to the heart or lungs), (3) infections like the
decedent’s mediastinitis are “usually seeded at the time of surgery,” (4) the pleurae are not located
within the mediastinum, (5) “there was no evidence of any infection or inflammation of the pleura
here,” nor of any fistula (i.e., abnormal connection) between the pleurae and the mediastinum, and
(6) Dr. Tanowitz did not “know the exact anatomy” of how “chest tubes” are generally placed, or
of how they were placed in this case, because he does not personally perform such procedures.

         In response, plaintiff argued that there was a genuine issue of material fact for resolution
at trial about whether defendants’ failure to remove the Blake drains from the decedent within 48
hours of surgery constituted a breach of the applicable standard of care that proximately caused
her death. As evidentiary support, plaintiff cited (1) Dr. Samuels’s AOM, in which he averred that
the standard of care is to remove such drains from a patient a few days after surgery, and that “[i]t
was the presence of the drains, for weeks longer than recommended, that caused the infection
which led to septic shock and [the decedent’s] death,” (2) a peer-reviewed article from 2017 that
states, “In the existing literature, it is suggested that drainage tube removal be performed as soon
as possible, and always within 1 to 2 days after surgery,” (3) a peer-reviewed article from 1989
indicating “that drains generally can be removed safely on the first postoperative day” and that
removing them later “unnecessarily increases the risk of infection, mechanical irritation by the
tubes and discomfort to the patient,” (4) a peer-reviewed article from 2013 that states, “Retention
of drains longer than 48 hours in the operative site” is an “important modifiable risk factor[] for
the development of organ/space sternal wound infections after cardiac surgery,” (5) a peer-
reviewed article from 2002 suggesting that physicians “[t]hink again about the value of
prophylactic drains” and, if they elect “to continue using them, remove them after 24-48 hours,”
(6) an excerpt from chapter 11 of the Sabiston Textbook of Surgery (20th ed), which states, “Drains
placed in incisions probably cause more infections than they prevent. . . . Considering . . . this risk,
they should be used as little as possible and removed as soon as possible,” and (7) an affidavit in
which Dr. Samuels indicated that his trial testimony concerning causation would be supported by
the 2017 peer-reviewed article and the foregoing excerpt from Sabiston. Before oral argument,
plaintiff also produced an affidavit, executed by Dr. Tanowitz in March 2018, that supported
plaintiff’s causation theory more directly than had Dr. Tanowitz’s deposition testimony.

        After entertaining oral argument, the trial court denied defendants’ motion for summary
disposition and partially denied their request for a Daubert hearing, holding that the court would


                                                  -3-
entertain such a hearing—at trial—as to Dr. Samuels, but not as to Dr. Tanowitz. Defendants filed
a motion for reconsideration, which the trial court denied. This appeal followed.

                                         II. ANALYSIS

        On appeal, defendants primarily argue that the trial court erred by denying their motion for
summary disposition under MCR 2.116(C)(10). In part, their argument rests on the assertion that
the trial court should not have considered the expert opinions of Dr. Samuels and Dr. Tanowitz
without first entertaining the requested Daubert hearings concerning those experts. We conclude
that, under the circumstances in this case, a Daubert hearing in the trial court is necessary before
a proper determination concerning summary disposition is possible.2

        We review de novo a trial court’s decision to grant or deny a motion for summary
disposition to determine whether the moving party was entitled to judgment as a matter of law.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “A motion under MCR
2.116(C)(10) tests the factual sufficiency of the complaint.” Id. at 120. When evaluating such a
motion, a trial court considers the evidence submitted by the parties in the light most favorable to
the party opposing the motion. Id. Where the proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled to judgment as a matter of law. Id.

        Regarding a motion under MCR 2.116, the moving party bears the initial burden of
production, which may be satisfied in one of two ways. Quinto v Cross & Peters Co, 451 Mich
358, 361; 547 NW2d 314 (1996). “First, the moving party may submit affirmative evidence that
negates an essential element of the nonmoving party’s claim. Second, the moving party may
demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an
essential element of the nonmoving party’s claim.” Id. at 362 (cleaned up). Once the moving
party satisfies its burden in one of those two ways, “[t]he burden then shifts to the opposing party
to establish that a genuine issue of disputed fact exists.” Id.

       “In a medical malpractice case, the plaintiff bears the burden of proving (1) the applicable
standard of care, (2) a breach of that standard by the defendant, (3) an injury, and (4) proximate
causation between the alleged breach of duty and the injury.” Rock v Crocker, 499 Mich 247, 255;
884 NW2d 227 (2016). At issue here are the first two elements, along with the fourth, and as a
general rule, “[e]xpert testimony is required in medical malpractice cases to establish the
applicable standard of care and to demonstrate that the defendant somehow breached that
standard.” Birmingham v Vance, 204 Mich App 418, 421; 516 NW2d 95 (1994).



2
  Although this Court previously granted plaintiff’s motion to expand the record to include two
affidavits executed by Dr. Virani, Estate of Diane M Smith v Fliegner, unpublished order of the
Court of Appeals, entered April 8, 2019 (Docket No. 343667), those affidavits are not properly
considered in our review here because they were not presented to the trial court before it ruled
concerning summary disposition. See Barnard Mfg Co, Inc v Gates Performance Engineering,
Inc, 285 Mich App 362, 380; 775 NW2d 618 (2009). Accord Innovative Adult Foster Care, Inc v
Ragin, 285 Mich App 466, 474 n 6; 776 NW2d 398 (2009); Peña v Ingham Co Rd Comm, 255
Mich App 299, 313 n 4; 660 NW2d 351 (2003).

                                                -4-
       We conclude that the trial court erred by failing to consider and decide whether the
challenged expert testimony was substantively admissible before considering it for purposes of
summary disposition under MCR 2.116(C)(10). Under MCR 2.116(G)(6), “[a]ffidavits,
depositions . . . and documentary evidence offered in support of or in opposition to a motion based
on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance
would be admissible as evidence to establish or deny the grounds stated in the motion.” The
reviewing court “should evaluate a motion for summary disposition under MCR 2.116(C)(10) by
considering the substantively admissible evidence actually proffered.” Maiden, 461 Mich at 121
(emphasis added).

       MCL 600.2955 provides:
               (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.
               (2) A novel methodology or form of scientific evidence may be admitted
       into evidence only if its proponent establishes that it has achieved general scientific
       acceptance among impartial and disinterested experts in the field.

               Additionally, 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

                                                 -5-
       (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.

        As a general rule, “there is no requirement that an expert’s qualifications and methods be
incorporated into an affidavit submitted in support of, or opposition to, a motion for summary
disposition. Rather, the content of the affidavits must be admissible in substance, not form.”
Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). Trial courts, however,
have a “gatekeeping obligation” under MRE 702, which obliges them “to review all expert opinion
testimony” for admissibility under that rule. Craig v Oakwood Hosp, 471 Mich 67, 82; 684 NW2d
296 (2004). “This gatekeeper role applies to all stages of expert analysis. MRE 702 mandates a
searching inquiry, not just of the data underlying expert testimony, but also of the manner in which
the expert interprets and extrapolates from those data.” Gilbert v DaimlerChrysler Corp, 470 Mich
749, 782; 685 NW2d 391 (2004). Furthermore, “[c]areful vetting of all aspects of expert testimony
is especially important when an expert provides testimony about causation.” Id. “While a party
may waive any claim of error by failing to call this gatekeeping obligation to the court’s attention,
the court must evaluate expert testimony under MRE 702 once that issue is raised.” Craig, 471
Mich at 82. Moreover, a party need not wait until trial to raise such a challenge; rather, the issue
is properly raised at summary disposition. See, e.g., Elher v Misra, 499 Mich 11, 14; 878 NW2d
790 (2016). A party relying on expert-opinion testimony to survive summary disposition bears
the burden of demonstrating that such testimony will be admissible at trial, under MRE 702, before
it can be properly considered for purposes of summary disposition. Amorello v Monsanto Corp,
186 Mich App 324, 331-332; 463 NW2d 487 (1990).

         In this case, defendants raised a challenge under MRE 702 to the causation and standard-
of-care opinions offered by two of plaintiffs’ medical experts: Dr. Samuels and Dr. Tanowitz.
After correctly recognizing that, in the face of such a challenge, the trial court was “compelled to
have a Daubert hearing,” the trial court nevertheless held that it would only entertain one with
regard to Dr. Samuels—refusing to permit a Daubert hearing as to Dr. Tanowitz. Moreover, the
trial court ruled on the motion for summary disposition before conducting the requested Daubert
hearing, ruling that it would conduct that hearing during the trial, immediately before Dr. Samuels
testified.

        By so ruling, the trial court disregarded its gatekeeping obligation under MRE 702,
considering the disputed expert testimony to be substantively admissible for purposes of summary
disposition without first determining whether it would, in fact, be admissible at trial under MRE
702. Indeed, the trial court abdicated its gatekeeping role concerning Dr. Tanowitz altogether,
holding that it would not consider the scientific reliability of his opinion testimony even at trial.
This is particularly concerning given that, when Dr. Tanowitz was deposed, he admitted that he
did not “know the exact anatomy” of how “chest tubes” are generally placed, or how the Blake
drains at issue here were placed, because he does not personally perform such procedures. In any
event, by basing its decision concerning summary disposition on challenged expert testimony that
may prove to be substantively inadmissible following a Daubert hearing, the trial court erred.

       Therefore, we vacate the order appealed and remand for further proceedings consistent
with this opinion. On remand, the trial court shall (1) permit plaintiff an opportunity to name a
new expert or experts to take the place of Dr. Tanowitz, who died during the pendency of this

                                                 -6-
appeal; (2) afford the parties an opportunity to conduct discovery concerning any such new expert
or experts; (3) hold a Daubert hearing with regard to all expert opinions that the parties may elect
to challenge on remand under MRE 702; and (4) after ruling on the Daubert matter, reconsider the
summary disposition issue, permitting the parties to file new briefs in light of whether the disputed
expert testimony is deemed to be admissible under MRE 702.

        Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                              /s/ Christopher M. Murray
                                                              /s/ Brock A. Swartzle
                                                              /s/ Thomas C. Cameron




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