            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



RITA WALSH and GARY WALSH,                                         UNPUBLISHED
                                                                   June 13, 2019
               Plaintiffs-Appellees,

v                                                                  No. 341131
                                                                   Oakland Circuit Court
MARC SAKWA, M.D., JEFFREY ALTSHULER,                               LC No. 2016-155529-NH
M.D., and WILLIAM BEAUMONT HOSPITAL,

               Defendants-Appellants,

and

SOUTHEASTERN MICHIGAN
CARDIOVASCULAR SURGEONS, PLLC,

               Defendant.


Before: SAWYER, P.J., and O’BRIEN and LETICA, JJ.

PER CURIAM.

       Defendant-appellants (defendants)—Marc Sakwa, M.D. and William Beaumont
Hospital1—appeal by leave granted2 an order denying their motion in limine to exclude the
testimony of plaintiffs’ standard-of-care expert, Dr. Louis Samuels, M.D. We vacate the order
and remand for further proceedings consistent with this opinion.




1
  Dr. Jeffrey Altshuler is listed as a defendant-appellant, but Dr. Altshuler was dismissed with
prejudice by stipulation of the parties on December 15, 2016. Dr. Altshuler is not a party to this
appeal, and “defendants” as used in this opinion refers to Dr. Sakwa and Beaumont Hospital.
2
 Walsh v Sakwa, unpublished order of the Court of Appeals, entered March 13, 2018 (Docket
No. 341131).



                                               -1-
        On June 25, 2013, Dr. Sakwa performed a minimally invasive mitral-valve-repair surgery
on Rita. During a minimally invasive mitral-valve-repair surgery, the surgeon makes an incision
in the side of the patient’s chest to access the heart. Once the surgeon has access to the heart, he
makes an incision to the left atrium, near the right atrium. A Swan-Ganz catheter runs through
the right atrium, and is used to monitor a patient’s blood pressure/flow during surgery. The
surgeon never sees inside the right atrium, and therefore never sees the Swan-Ganz catheter.
After the surgeon finishes repairing the mitral valve, the surgeon has to close the left atrium by
suturing it. During Rita’s surgery, the Swan-Ganz catheter was apparently sitting in the right
atrium near where Dr. Sakwa was suturing the left atrium, and Dr. Sakwa stitched the
Swan-Ganz catheter into Rita’s heart.

        After suturing the left atrium, Dr. Sakwa asked the anesthesiologist to move the
Swan-Ganz catheter to ensure that it was not entrapped, and the anesthesiologist reported that the
Swan-Ganz catheter moved freely. However, after closing the incision in the side of Rita’s
chest, the anesthesiologist reported that he was no longer able to move the Swan-Ganz catheter,
so Dr. Sakwa had to perform emergency open-heart surgery to free the catheter.

        Plaintiffs filed their complaint on October 12, 2016. Plaintiffs alleged two counts. Count
1 alleged medical malpractice against Dr. Sakwa, arguing that he breached the standard of care
by suturing the Swan-Ganz catheter into Rita’s heart. Count 2 alleged loss of consortium on
Gary’s behalf as a result of Dr. Sakwa’s medical malpractice. Plaintiffs alleged that Beaumont
Hospital was vicariously liable for both counts.

        In the Affidavit of Merit accompanying the complaint, Dr. Louis E. Samuels stated the
standard of care for suturing a Swan-Ganz catheter into the heart during a minimally invasive
mitral-valve-repair surgery as follows:

       The applicable standard of practice or care in this matter required that Marc
       Sakwa, M.D. . . .

                a. Refrain from suturing the Swan Ganz catheter into the suture line of the
       heart;

               b. Properly place sutures into the heart tissue, taking care to avoid placing
       stitches into or around the Swan Ganz catheter;

              c. Properly identify patient anatomy and the location of the Swan Ganz
       catheter when suturing the heart;

             d. Properly perform Mrs. Walsh’s surgical procedure to avoid suturing the
       Swan Ganz catheter into the suture line of the heart;

               e. Ensure the Swan Ganz catheter is not sutured into the suture line of the
       heart before closing the patient;

              f. Any and all other standard of care violations, which may become known
       throughout the course of discovery in this matter.


                                                -2-
       During discovery, the parties deposed Dr. Samuels. When asked whether he was “aware
that there was a risk of catheter entrapment in a minimally invasive [mitral-valve-repair]
procedure,” Dr. Samuels responded that “[i]t’s something that is so rare that it’s not at the
forefront of my mind,” but he acknowledged that it was something that he “heard about can
happen.” The following exchange then ensued:

              Q. Let me ask you this: The entrapment of the Swan-Ganz in a procedure
       such as this can happen in the absence of negligence; is that true?

              A. No, I don’t think so.

              Q. Based on what?

              A. Well, based on the standard of care of the operation is not to entrap the
       catheter.

              Q. No, I understand that’s the ideal, but it happens, correct?

              [Objection omitted.]

              A. It is not happening within the standard of care would be my answer.

              Q. And based on what? Your personal opinion?

              A. No, it’s not my personal opinion. It’s the standard of care of the
       operation. The catheter should not be entrapped, it should not -- it should not
       happen in the standard of care.

               Q. So what you’re then saying is anytime it happens, that in and of itself
       is negligence?

              A. Correct.

              Q. Doesn’t matter whether -- what the circumstances are, it shouldn’t
       happen and that’s just the way it is?

              A. Well, in the circumstances of this particular operation, it should not
       happen under the standard of care.

             Q. That’s not what I’m asking you. I’m asking you anytime, anyplace,
       anywhere.

              [Objection omitted.]

              Q. If somebody accidentally stiches the Swan into the atrium, that’s
       negligence in your mind?

              [Objection omitted.]


                                               -3-
       Q. Professional negligence.

       A. That is not supposed to happen within the standard of care.

       Q. That’s not what I’m asking you. Is anytime --

       A. I don’t know how --

       Q. No, it’s a yes or no.

       A. I don’t know how to answer that very, very broadly speaking, but it is
not supposed to happen ever. It should never happen.

                                      * * *

        Q. I’m asking you in and of itself by virtue of the fact that that Swan was
stitched into the atrium, is that in and of itself evidence of professional
negligence?

       [Objection omitted.]

       A. Under the cardiac surgery operation, that is negligence. That catheter
should not be sewn into the heart under the cardiac surgery circumstances that
we’re talking about.

       Q. So it doesn’t matter if it was Dr. Sakwa or any surgeon who stitches
that Swan-Ganz in, they’ve committed negligence in your mind?

       A. Yes.

       Q. And where in the literature can you point me to that says that?

        A. You can’t because it is such a rare complication that you’re not going
to find that written and spelled out in that way. It’s understood that that is not
within the standard of care to sew a catheter into the heart.

       A. Because you say it?

       A. Whether it is --

       [Opposing counsel]: Let him finish. Let him finish.

       The Witness:    Whether it is intentional or not, that is not within the
standard of care.

       Q. Are you --

       A. Whether it is accidental or not, it is not within the standard of care.


                                         -4-
        Dr. Samuels testified that he only looked at a single article on the subject of Swan-Ganz
catheter entrapment. He explained that he did not read any of the articles discussed in the article
that he read because that article “did a wonderful job of” describing complications related to the
Swan-Ganz catheter and he “didn’t feel the need to check the references of [that] article.” Dr.
Samuels also testified that he did not discuss Swan-Ganz catheter entrapment with any of his
colleagues, nor did he attend any meetings, seminars, or presentations about the issue. Dr.
Samuels then doubled-down on his conclusion that entrapping the Swan-Ganz catheter was
negligence as “a conclusion based on the standards of care of our profession and based upon my
review of this particular article.”

        When pressed again for where he drew his conclusion on the standard of care from, Dr.
Samuels testified that suturing the catheter is negligence “because it is not the standard of care;
that’s why.” In attempting to explain why he did not have a conversation about this standard of
care with other professionals, Dr. Samuels stated:

               A. So this complication, albeit rare, is unintentional, is a complication that
       resulted from a deviation from the standard of care. I don’t think I necessarily
       even have to have the kind of conversations and things on this kind of a rarity to
       know that this is a breach of the standard of care and represents malpractice. In
       our field, having been doing this for decades, it’s something that -- please allow
       me to finish --

               Q. Yeah.

               A. It’s something that is so obvious that you’re not going to find it in a
       textbook to say you don’t sew the catheter into the heart. It’s just that -- it’s that
       obvious that you don’t do that, that’s a deviation from the standard of care. You
       sew up the heart, you don’t sew the catheter with it. You’re not going to find that
       in a textbook. You’re not going to find it.

       Following discovery, defendants moved to exclude Dr. Samuels’ standard-of-care
testimony on August 2, 2017. The trial court held a hearing on defendants’ motion on October
25, 2017. After listening to the parties arguments, the trial court issued the following ruling:

               The Court finds that the doctor’s own level of experience is a weight
       objection and the doctor has enough to let the jury decide whether or not to accept
       his opinion, and the Court is of the opinion that the doctor has satisfied MRE 702
       and the statute, 600.2955, and may testify. So that’s the ruling of the Court.

       Defendants now appeal by leave granted.

       Defendants argue that the trial court abused its discretion by not excluding Dr. Samuels’
standard-of-care testimony. Because we conclude that the trial court’s ruling is so lacking that it




                                                -5-
effectively precludes our review, we vacate the trial court’s order and remand for the trial court
to either explain its reasoning or hold a Daubert3 hearing on the issue.

        “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). A trial court abuses
its discretion when it chooses an outcome “outside the range of principled outcomes.” Id. The
admission of evidence because of an erroneous interpretation of the law is necessarily an abuse
of discretion. Craig ex rel Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004).

         At issue here is MRE 702 and MCL 600.2955. MRE 702 states:

                 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 of reliable principles and methods, and (3) the witness has applied the
         principles and methods reliably to the facts of the case.

And MCL 600.2955 states:

                  (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


3
    Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).


                                                 -6-
       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.

               (3) In an action alleging medical malpractice, the provisions of this section
       are in addition to, and do not otherwise affect, the criteria for expert testimony
       provided in section 2169.

        In Elher v Misra, 499 Mich 11; 878 NW2d 790 (2016), our Supreme Court explained that
the trial court’s role in applying MRE 702 and MCL 600.2955—which codified the United
States Supreme Court’s opinion in Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct
2786; 125 L Ed 2d 469 (1993)—was not only to act as a gatekeeper to ensure that the jury heard
reliable scientific evidence, but to use its discretion to decide how reliability, itself, is
determined:

       The United States Supreme Court has recognized . . . that the Daubert factors may
       or may not be relevant in assessing reliability, depending on the nature of the
       issue, the expert’s expertise, and the subject of the expert’s testimony. And even
       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, 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. [Elher, 499 Mich at 24-25
       (footnotes omitted).]

The Elher Court went on to explain that “all the factors in MCL 600.2955 may not be relevant in
every case.” Id. at 27.

        Here, the trial court’s failure to explain how it determined that Dr. Samuels’ testimony
was reliable—that is, how the testimony satisfied MRE 702 and MCL 600.2955—effectively
prevents this Court from reviewing the issue. MCL 600.2955(1) lists seven factors that courts
must consider, and as explained in Elher, not all of those factors are always relevant, and there
may even be times when none of the factors are relevant. The trial court clearly considered MCL
600.2955 satisfied, but it never explained how. And because the trial court failed to explain how
MCL 600.2955 was satisfied, this Court cannot discern which factors listed in MCL
600.2955(1), if any, the trial court believed were applicable, and we therefore cannot determine
whether the trial court abused its discretion by relying on those factors—assuming that any
factors applied. Perhaps more problematic, there is no suggestion in the trial court’s ruling that it
                                                -7-
even considered the factors listed in MCL 600.2955(1), which it was required to do by the
statute’s plain language. See MCL 600.2955(1) (stating that the court “shall consider all of the
following factors”) (emphasis added).

        The trial court’s failure to address which factors listed in MCL 600.2955(1) that it relied
on when rendering its decision makes this Court’s review of the parties’ arguments on appeal
futile. For instance, the parties argue over whether Dr. Samuels’ testimony was supported by
peer-reviewed medical literature. See MCL 600.2955(1)(b). But the trial court never stated or
otherwise implied that it was relying on MCL 600.2599(1)(b) to conclude that Dr. Samuels’
testimony was reliable, so deciding whether that factor is satisfied is premature. Similarly, the
parties dispute whether Dr. Sakwa, in his deposition testimony, agreed with Dr. Samuels’
proposed standard of care, and whether this establishes that Dr. Samuels’ opinion was “generally
accepted within the relevant expert community.” MCL 600.2599(1)(e). But with this too, the
trial court never stated or otherwise implied that it was relying on MCL 600.2599(1)(e) to
conclude that Dr. Samuels’ testimony was reliable, so deciding whether the factor is satisfied
neither supports nor contradicts the trial court’s decision. 4

        In sum, MCL 600.2955(1) is clear: “the court . . . shall consider” the seven factors listed.
(Emphasis added.) The trial court’s opinion here is so lacking that it is impossible to determine
whether the trial court considered the factors listed in MCL 600.2955(1). And even if it did
consider those factors, it is unclear which of those factors the trial court found applicable and
why. This makes our review of this case—as well as our review of the parties’ arguments—
virtually impossible. We therefore conclude that the trial court necessarily abused its discretion
because, based on the trial court’s ruling, it appears that it did not consider the factors listed in
MCL 600.2955(1), which it was required to do by law. See Craig, 471 Mich at 76. Rather than
reversing the trial court’s order, we vacate the order and remand for the trial court to either
explain its reasoning for why Dr. Samuels’ testimony was reliable—being sure to address which
factors listed in MCL 600.2955(1), if any, apply to this case and why—or, in its discretion, hold
a Daubert hearing as was originally requested by defendants, and then issue an opinion
explaining whether Dr. Samuels’ testimony is reliable under MRE 702 and MCL 600.2955.

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



                                                              /s/ David H. Sawyer
                                                              /s/ Colleen A. O’Brien
                                                              /s/ Anica Letica




4
  Moreover, the parties disputed at trial—and continue to dispute on appeal—whether Dr. Sakwa
actually agreed with Dr. Samuels’ standard-of-care testimony, and the trial court never resolved
that disagreement.


                                                -8-
