ANTHONY M LONGHINI V MICHIGAN MEDICAL PC
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STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY M. LONGHINI and KATHLEEN M.
LONGHINI,
UNPUBLISHED
April 29, 2004
Plaintiffs-Appellants,
v
MICHIGAN MEDICAL, P.C., MICHIGAN
MEDICAL SPECIALISTS, P.C., GRAHAM
BARNETT, M.D., BUTTERWORTH HOSPITAL,
and BUTTERWORTH HEALTH
CORPORATION, d/b/a/ SPECTRUM HEALTH
MED CENTER,
No. 243124
Kent Circuit Court
LC No. 99-010899-NH
Defendants-Appellees.
Before: Murray, P.J., and Murphy and Markey, JJ.
PER CURIAM.
In this medical malpractice action, plaintiffs appeal as of right from a judgment of no
cause of action entered by the trial court following a jury trial. We affirm.
Plaintiff Anthony Longhini first saw defendant Barnett in 1997 because he was suffering
from a frequency of urination, along with urgency and significant terminal dribbling, and
occasional post-micturitional incontinence. On December 10, 1997, plaintiff1 underwent a
transurethral resection of the prostate, or what is referred to as the “TURP” procedure. However,
after this procedure, plaintiff was still experiencing problems. On May 22, 1998, plaintiff had
the TURP procedure done a second time. Plaintiff experienced continuing and more severe
incontinence problems, and he went to the Mayo Clinic. At the Mayo Clinic, it was determined
that plaintiff’s external sphincter muscle was not present, and plaintiffs subsequently alleged that
this was due to defendant Barnett’s “inappropriate cutting” during the TURP procedure.
Plaintiffs filed suit alleging negligence and malpractice. The case proceeded to trial, and the jury
found that defendant Barnett was not professionally negligent when he performed surgery on
plaintiff.
1
Reference to “plaintiff” in the singular in this opinion refers to Mr. Longhini.
-1-
Besides maintaining that the injury could not have been caused by Dr. Barnett’s resection
in light of the physical evidence, defendants theorized that a possible cause of plaintiff’s
sphincter injury was the heat/electrical charge generated by the Vaportrode loop, which was used
in the TURP procedure.2 Defendants maintained that the heat or current could have caused an
irritative injury to the nerve of the external sphincter, resulting in it remaining open and unable to
restrict. Plaintiffs filed a motion in limine to preclude defendants from offering into evidence
any testimony relating to this theory. Plaintiffs argued that defendants’ theory was not based on
scientific fact and was not supported by any medical literature or other peer-review
documentation. The trial court denied plaintiffs’ motion on the basis that this theory was not an
opinion as to what happened, but merely an explanation as to what might have happened. The
trial court also reasoned that this theory was a conclusion derived from recognized scientific
principles of conduction of heat and electricity.
On appeal, plaintiffs contend that the trial court erred in denying their motion in limine.
This Court reviews a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Ellsworth v Hotel Corp of America, 236 Mich App 185, 188; 600 NW2d 129 (1999).
“We review a trial court’s decision regarding the admissibility of expert witness testimony for an
abuse of discretion.” In re Wentworth, 251 Mich App 560, 562-563; 651 NW2d 773 (2002).
We initially reject any suggestion that, because defendants’ theory of causation merely
constituted an explanation as to what might have happened, as opposed to a conclusive opinion
of causation, testimony regarding the theory was necessarily admissible. Although the
heat/electrical charge theory can be viewed as an “explanation” of what might have occurred in
the realm of possibilities, it nonetheless constituted a scientific or medical opinion on causation
with respect to Mr. Longhini’s injury. We also reject any assertion that a defendant in a
malpractice action has a lower threshold to overcome in interjecting opinion testimony as a
defense. The rules of evidence regarding expert testimony, MRE 702-707, and the relevant
statute, MCL 600.2955, apply equally regardless whether one is a plaintiff or defendant and
regardless whether one is presenting a conclusive theory of causation or possible theory of
causation; there is no language creating a distinction, nor should there be a distinction. Without
the gatekeeper aspect of the rules of evidence and the statutory provision being applied to a
defendant’s medical or scientific theories, the defendant could literally flood the courtroom with
unsupportable theories and possibilities predicated on questionable science, thereby muddying
the jury’s ability to reach the appropriate result on the basis of recognized and reliable science.
MRE 702 provides:
2
Plaintiffs indicate, consistent with the evidence, that the Vaportrode is a resectoscopic
instrument that is inserted into the urethra opening and slid to the area of blockage in the
prostate. The device consists of a camera and light to visualize the walls of the urethra, and of an
insulated tube, out of the end of which a small wire loop can be projected. This wire loop is
heated by an electrical current. The loop is used to cut away the tissue of the enlarged prostate
impinging the urethra. The heat of the wire assists in cauterizing the area being cut to reduce
bleeding and irritation.
-2-
If the court determines that recognized 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.
MRE 702 governs the admissibility of expert testimony, and creates a three-part test.
Wentworth, supra at 563. “First, the expert must be qualified. Second, the evidence must
provide the trier of fact a better understanding of the evidence or assist in determining a fact in
issue. Finally, the evidence must be from a recognized discipline.” Id.
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.
-3-
(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 [MCL 600.2169].
MCL 600.2955(2) reflects a codification of the Davis-Frye3 analysis, which provides that
a party offering novel scientific evidence must demonstrate that it has gained general acceptance
within the scientific community. Anton v State Farm Mut Automobile Ins Co, 238 Mich app 673,
679; 607 NW2d 123 (1999). When conducting the Davis-Frye analysis, the trial court must
focus on the method, process, or basis underlying an expert’s conclusions and whether it is
generally accepted and recognized, and not on the ultimate conclusion of the expert. Anton,
supra at 678-679.
Turning to the case before us today, it is necessary to first determine the proper analytical
framework. The ultimate opinion that we are addressing is that the use of the Vaportrode
possibly caused an irritative injury to the nerve of the external sphincter, resulting in it remaining
open and unable to restrict, thereby causing stress incontinence. Our focus, however, is not
directly on that conclusion, which still must be considered under MCL 600.2955, but must stress
the reliability and recognition of the underlying basis of this medical-scientific conclusion, which
is that heat and electrical charges or impulses from surgical instruments such as the Vaportrode
can extend beyond the point of cutting and cause injuries in the body. Because the opinion
testimony proffered by defendants does not assert that the heat/electrical charge theory is
conclusively the cause of Mr. Longhini’s injury, but merely a possible cause, our attention must
be on whether there was sufficient information and evidence, indicating scientific recognition
and reliability, as to support the proposition that the theory could explain a possible cause of the
complained injury. Record support must be sufficient such that we cannot conclude that the trial
court’s ruling was “so palpably and grossly violative of fact and logic that it evidence[d]
perversity of will, a defiance of judgment, or the exercise of passion or bias.” Barrett v Kirtland
Community College, 245 Mich App 306, 325; 628 NW2d 63 (2001).
The trial court ruled, in part:
The other reason for admitting it is that, while the theory is, itself,
something that has apparently not gained a lot of currency, perhaps, because this
implement [Vaportrode] is too new for there to have been a lot of experience with
it, it does strike me that the theory or opinion is really just a conclusion derived
from recognized scientific knowledge and basic scientific methodology and
principles.
It’s, frankly, just an example of the process of elimination, which is a
standard principle of science. It also does seem to simply be applying the concept
of conduction of heat and electricity, which are, again, readily accepted scientific
principles.
3
People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 US App DC 46;
293 F 1013 (1923).
-4-
In the Anton case, as well as others . . ., our courts have said that
something is not novel, even though it might be the first of its particular
conclusion being drawn, so long as it is being drawn based upon methodologies
and principles which are, themselves, accepted.
The learned trial court’s focus and analysis above is correct. Moreover, the record
supports the court’s findings and conclusion.
The record reflects that the manufacturer of the Vaportrode initially recommended
operation of the instrument at a wattage of between 250 and 300. Subsequent to Mr. Longhini’s
surgery, the manufacturer issued new guidelines that recommended a much lower setting.
Defendant Barnett, who opined that the injury to the sphincter or the nerves controlling its
function could have resulted from the transmission of heat/electricity, stated, in relation to the
reduction in wattage:
There was a concern that some of our patients, after having a resection of
the prostate with this particular loop [Vaportrode], they were experiencing
irritative symptoms over and above what we’d normally expect for a patient who
has had a resection of the prostate. Those symptoms lasted anywhere from two to
six months. This was a commonly recognized problem, especially with my
colleagues in the area. After discussing it with the representative, it was their
opinion it would be wise to cut back to 180 [watts] . . . .
The reduction in the wattage recommendation was acknowledged by other experts
retained for trial. Defendant Barnett also testified that “we do know for sure that when heat gets
too close to the capsule of the prostate, that it can cause damage to some of these fibers and
that’s the reason why these patients develop impotence.”
Dr. Kasper, one of plaintiffs’ witnesses, acknowledged on cross-examination that
although defendant’s theory was not particularly described in medical literature, it may have
occurred, and that there was “a remote possibility” that heat/electrical charges or impulses
caused Mr. Longhini’s injury. Regarding the wattage, Dr. Kasper stated that “the higher the
wattage, the more likely the theory [defendants] purport could have some credence.” There was
deposition testimony by Dr. Sirls that heat/electrical current may have caused the injury. Dr.
Rodriguez, who opined that the heat/electrical transference theory was logical and intuitive,
testified:
Well, it’s, umm, known that the electricity used to do the cutting extends
beyond the actual location of the loop as it’s going through the prostate tissue. In
other words, the power can dissipate or extend for certain distance beyond that
point.
Dr. Gerber testified that Mr. Longhini’s external sphincter could have become damaged
through heat transfer or electrical energy transfer from the Vaportrode to the sphincter area. Dr.
Leach, who testified on plaintiffs’ behalf by way of deposition, indicated that an electrical
current can be transmitted to surrounding nerves and other tissue through use of the Vaportrode,
and that use of the instrument increased complications of irritation in patients.
-5-
Our overall review of the record indicates unanimous agreement by the medical experts,
who have treated their own patients over the years, that heat/electrical charges, currents,
impulses, or transferences can extend beyond the exact point of surgery and possibly do injury to
nearby nerves and tissue. Dr. Kasper’s acknowledgement that the specific conclusory opinion
was also possible further supports admittance of the evidence. Taking into consideration the
dictates of MRE 702 and MCL 600.2955, along with the required deference that must be given to
the trial court in these circumstances, we conclude that the court’s finding that the pertinent
medical opinion and its basis were reliable and recognized by the medical and scientific
community was not “so palpably and grossly violative of fact and logic that it evidence[d]
perversity of will, a defiance of judgment, or the exercise of passion or bias.” Barrett, supra at
325.
Affirmed.
/s/ Christopher M. Murray
/s/ William B. Murphy
/s/ Jane E. Markey
-6-
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