ESTATE OF MARY E SWANSON V PENNOCK HOSPITAL (Per Curiam Opinion)
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STATE OF MICHIGAN COURT OF APPEALS ROBERT P. SYTSMA, Personal Representative of the ESTATE OF MARY E. SWANSON, also known as the ESTATE OF MARY E. SYTSMA, UNPUBLISHED March 15, 2018 Plaintiff-Appellant, v PENNOCK HOSPITAL, BRIGIT BRENNAN, M.D., ANDREW PARSONS, M.D., HASTINGS EMERGENCY PHYSICIAN, HASTINGS SURGEONS PC, MARC A. AFMAN, and AMY POHOLSKI, D.O., No. 336939 Barry Circuit Court LC No. 2014-000313-NH Defendants, and HASTINGS INTERNAL MEDICINE and DAVID PARKER, M.D., Defendants-Appellees. Before: O’CONNELL, P.J., and HOEKSTRA and SWARTZLE, JJ. PER CURIAM. In this medical malpractice case, plaintiff, Robert P. Sytsma, as the personal representative of the Estate of Mary E. Swanson (“the Estate”), also known as Mary E. Sytsma (“Sytsma”), appeals by interlocutory leave granted the trial court’s order granting partial summary disposition in favor of defendants, Hastings Internal Medicine, P.L.C. and David B. Parker, M.D., and the court’s order denying the Estate’s motion to strike proposed expert testimony. Because the trial court did not err by granting summary disposition to defendants and the trial court did not abuse its discretion by denying the Estate’s motion to strike, we affirm. I. BASIC FACTS AND PROCEDURAL HISTORY On January 14, 2013, Sytsma, who was then 68 years of age, went to Pennock Hospital’s emergency room with complaints of abdominal pain. A CT scan of Sytsma’s abdomen revealed -1- a “closed loop bowel obstruction.” Brigit Brennan, M.D. performed surgery later that day. She removed 7 feet of necrotic small bowel and then attached the remaining bowel segments together, leaving Sytsma with between 6 and 6½ feet of viable bowel remaining. Parker was involved with Sytsma’s post-operative care while she was at Pennock Hospital. Sytsma’s condition deteriorated after her surgery. On January 17, 2013, Sytsma was transferred to Spectrum Health, Blodgett Hospital, in Grand Rapids, Michigan, where Sytsma underwent additional surgery, performed by Andrea Wolf, M.D. After the surgery, Sytsma had approximately 85 centimeters of bowel. As a result of this “short bowel” syndrome, Sytsma had to be on long term total parenteral nutrition therapy (TPN). Wolf also later prescribed a new drug, Gattex, to improve Sytsma’s nutritional absorption while on TPN. Gattex was known to have “the potential to cause hyperplastic changes including neoplasia.” The drug warnings for Gattex indicated that Gattex should be discontinued in patients with an “active gastrointestinal malignancy.” Further, in patients with increased risk for malignancy or those with active non-gastrointestinal malignancy, the decision to use Gattex should be “based on risk-benefit considerations.” Sytsma started using Gattex in December 2013. Within about three weeks, Sytsma experienced problems with her nasal drainage, and she later noticed a lump on her neck. A CT scan revealed a mass, and Sytsma was diagnosed with cancer, specifically alveolar rhabdomyosarcoma of the nasopharynx. Sytsma sought treatment at the University of Michigan’s Sarcoma Clinic, where she was under the care of Scott M. Schuetze, M.D. In April 2014, Sytsma filed a medical malpractice suit against Pennock Hospital, the physicians who treated her there, and their respective medical practices. She alleged that her treating physicians failed to correct her original bowel obstruction in a timely fashion, that their postoperative treatment was deficient, and that they failed to timely recognize her deterioration after the first surgery. According to Sytsma’s complaint, as a result of these failings, she required additional surgery that resulted in short bowel syndrome and permanent TPN. Sytsma’s initial complaint did not involve allegations relating to Gattex or Sytsma’s cancer. Sytsma died of cancer in June 2015. Following her death, a personal representative was appointed, and the Estate was substituted as the plaintiff in this case. The Estate then filed an amended complaint, which included a claim for wrongful death. Notably, in asserting that defendants’ malpractice was a cause of Sytsma’s death, the Estate maintained that defendants’ malpractice necessitated the prescription for Gattex and, according to the Estate, the growth of Sytsma’s cancer was “likely accelerated” by her use of Gattex. The trial court dismissed the wrongful death claim under MCR 2.116(C)(10) on the ground that the Estate failed to present evidence that Sytsma’s use of Gattex caused or significantly contributed to Sytsma’s death. The trial court also denied the Estate’s motion to strike the expert testimony of Mark Agulnik, M.D. II. SUMMARY DISPOSITION The Estate first argues that the trial court erred when it granted summary disposition of the Estate’s wrongful death claim in favor of defendants. Specifically, the Estate asserts that it presented sufficient evidence to create a material question of fact as to whether Parker’s -2- negligence, which necessitated the prescription for Gattex, was a proximate cause of Sytsma’s death. In this regard, the Estate maintains that a question of fact exists given that (1) the Gattex drug warnings state that Gattex can cause acceleration of neoplastic growth, (2) Sytsma rapidly began showing cancer symptoms after she started taking Gattex, (3) Schuetze authored a publication regarding the mechanism by which Gattex contributed to the growth of Sytsma’s malignancy, and (4) Wolf opined that Gattex increased the growth of Sytsma’s cancer cells. A. STANDARD OF REVIEW We review de novo a trial court’s decision to grant a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). “When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all the evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact.” Sisk-Rathburn v Farm Bureau Gen Ins Co of Mich, 279 Mich App 425, 427; 760 NW2d 878 (2008). “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). “[A] moving party may be entitled to summary disposition as a result of the nonmoving party's failure to produce evidence sufficient to demonstrate an essential element of its claim.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 9; 890 NW2d 344 (2016). B. ANALYSIS “[A] wrongful death action grounded in medical malpractice is a medical malpractice action in which the plaintiff is allowed to collect damages related to the death of the decedent.” Jenkins v Patel, 471 Mich 158, 165-166; 684 NW2d 346 (2004). To establish a claim for medical malpractice, a plaintiff must show: (1) the applicable standard of care, (2) that the defendant breached the standard of care, (3) that the plaintiff was injured, and (4) “that the plaintiff's injuries were the proximate result of the defendant's breach of the applicable standard of care.” Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004). As such, as relevant to this appeal, in order to prove its medical malpractice claim, the Estate had to establish that Parker’s breach of the standard of care proximately caused Sytsma’s death. Id. The term proximate cause encompasses both cause in fact and legal cause. Id. To prove that an act or omission was a cause in fact of an injury, the plaintiff must show that “ ‘ “but for” the defendant’s actions, the plaintiff’s injury would not have occurred.’ ” Id. at 86-87, quoting Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). Legal cause, on the other hand, “ ‘normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.’ ” Id., quoting Skinner, 445 Mich at 163. “As a matter of logic, a court must find that the defendant's negligence was a cause in fact of the plaintiff's injuries before it can hold that the defendant's negligence was the proximate or legal cause of those injuries.” Id. at 87. To establish cause in fact, the plaintiff “need not prove that an act or omission was the sole catalyst for his injuries.” Id. For instance, a plaintiff can -3- establish liability for a harm that exacerbated or triggered an existing injury or symptoms. See Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305 (2000). However, while the plaintiff does not have to demonstrate that a defendant’s negligence was the sole cause of injury, the plaintiff “must introduce evidence permitting the jury to conclude that the act or omission was a cause.” Craig, 471 Mich at 87. “A plaintiff may show ‘cause in fact’ through circumstantial evidence and ‘reasonable inferences’ therefrom.” Lowery v Enbridge Energy Ltd Partnership, 500 Mich 1034; 898 NW2d 906 (2017) (quotation marks and citation omitted). But, as explained by the Michigan Supreme Court: It is important to bear in mind that a plaintiff cannot satisfy this burden by showing only that the defendant may have caused his injuries. Our case law requires more than a mere possibility or a plausible explanation. Rather, a plaintiff establishes that the defendant's conduct was a cause in fact of his injuries only if he “set[s] forth specific facts that would support a reasonable inference of a logical sequence of cause and effect.” A valid theory of causation, therefore, must be based on facts in evidence. And while “ ‘[t]he evidence need not negate all other possible causes,’ ” this Court has consistently required that the evidence “ ‘exclude other reasonable hypotheses with a fair amount of certainty.’ ” [Craig, 471 Mich at 87-88 (footnotes omitted; emphasis in original).] In a medical malpractice action, expert testimony is typically required to establish causation. Woodard v Custer, 473 Mich 1, 6; 702 NW2d 522 (2005). In this case, the Estate’s theory of causation rests on the assertion that Parker’s negligence in treating Sytsma at Pennock Hospital led to the second surgery at Blodgett Hospital and that, as a result of this second surgery, Sytsma had short bowel syndrome, which required TPN and which necessitated the prescription for Gattex. The Estate maintains that Gattex accelerated the growth of Sytsma’s cancer and that, because Parker’s negligence necessitated Gattex, defendants caused, or at least hastened, Sytsma’s death. In moving for summary disposition under MCR 2.116(C)(10), defendants maintained that no material question of fact remained regarding causation because the Estate could not establish that Gattex caused Sytsma’s cancer or had any effect on Sytsma’s prognosis, treatment, or lifespan. In short, the basic issue before us is whether a material question of fact remains regarding whether Gattex was a cause in fact of Sytsma’s death. Viewing the evidence in a light most favorable to the Estate, we conclude that the Estate has failed to present sufficient evidence that Gattex contributed to her death and thus the trial court did not err by granting summary disposition to defendants. In particular, given that the effects of Gattex on the prognosis and development of cancer are beyond the ken of ordinary persons, the Estate had to demonstrate causation through expert testimony. See Woodard, 473 Mich at 6. In attempting to demonstrate causation, the Estate has relied primarily on the expert opinions of Wolf and Schuetze. However, neither Wolf nor -4- Schuetze provided an opinion which supports the conclusion that Gattex was a cause in fact of Sytsma’s cancer or the hastening of her death.1 See Craig, 471 Mich at 87-88. With regard to Wolf, she indicated that she did not believe that Gattex caused Sytsma’s cancer. Instead, Wolf stated at her deposition that it was her “understanding” that Gattex can “increase the growth of preexisting abnormal cells,” and she opined that Gattex “accelerated the growth” of Sytsma’s cancer. However, Wolf did not provide any opinion regarding the rate of acceleration or the effect of this acceleration. Wolf acknowledged that she was not an oncologist and she testified that she would defer to a specialist concerning when the cancer likely first developed, whether it was metastasized, and the cancer’s rate of growth. Most notably, she also acknowledged that she had “no opinion and would defer to an oncologist” with regard to whether Gattex “played any role in altering [Sytsma’s] treatment, her therapy, her life expectancy or her living curve[.]” Considering Wolf’s opinion, at most, she indicated that Gattex accelerated the growth of Sytsma’s cancer.2 But, this acceleration is insufficient to establish causation without some indication that the acceleration affected Sytsma’s treatment, prognosis, and/or her lifespan. Wolf was not willing to offer such an opinion, and thus her opinion does not support the Estate’s assertion that Gattex contributed to Sytsma’s death. With regard to Schuetze, his opinion is set forth in a draft case report he authored about Sytsma. In this case report, Schuetze wrote that Gattex may have had some effect on the growth of Sytsma’s cancer, and he indicated that small tumor size—among other things—was a favorable prognostic indicator for the treatment of this type of cancer. But, he did not offer any opinion as to whether Gattex actually affected Sytsma’s cancer treatment or shortened her life. In particular, Schuetze wrote about the undesirable effects of insulin-like growth factor with regard to Sytsma’s type of cancer. He then described the effect of Gattex on insulin growth receptors and acknowledged that the drug has a warning about the potential for “acceleration of neoplastic growth.” But, he did not offer any statements indicating that Sytsma’s use of Gattex actually had an adverse effect on her prognosis. Rather, ultimately, in his conclusion, Schuetze opined that it was “unlikely” that the Gattex had a “causative role” in the development of 1 The Estate also obtained expert opinions from Brendan John Carroll, M.D., James W. Robey, M.D., Melissa Means, M.D., and David H. Goldstein, M.D. Although the Estate relies primarily on the opinions of Wolf and Schuetze, we note briefly that these other experts do not support the Estate’s theory of causation. Carroll testified at his deposition that he had “no personal opinion about whether Gattex does or doesn’t exacerbate or cause rhabdomyosarcoma.” Robey stated that he could not comment on the role that Gattex might have played in Swanson’s cancer because he was not a cancer specialist and was unfamiliar with Gattex. Means could offer no opinion about the survivability of Swanson’s cancer, and she agreed that she would defer to a specialist on the cause, development, and treatment for that cancer. Goldstein acknowledged that he would defer to an oncologist on the timing and other issues related to Swanson’s cancer. 2 Defendants dispute whether Wolf has the qualifications necessary to offer such an opinion. However, we decline to consider defendants’ arguments regarding Wolf’s qualifications because, regardless of whether she has the necessary qualifications, the Estate failed to establish a material question of fact regarding causation. -5- Sytsma’s cancer, and he stated only that it “may have contributed to growth of the malignancy, indirectly, through release (emphasis added)” of insulin-like growth factors. Schuetze’s belief that Gattex “may” have indirectly contributed to the growth of Sytsma’s malignancy is not adequate to establish that Gattex was a cause in fact of Sytsma’s death. See Craig, 471 Mich at 87-88. Moreover, even if Gattex contributed to the growth of Sytsma’s tumor, like Wolf, Schuetze failed to opine that Sytsma’s use of Gattex actually had an adverse effect on her treatment or caused her tumor to grow to a size that adversely affected her prognosis. Aside from evidence relating to Wolf and Schuetze, the Estate more generally notes that Gattex has the known potential to cause acceleration of neoplastic growth, as evinced by the drug warnings in the package insert for Gattex. However, the general proposition that Gattex can accelerate cancer growth does not establish that it did so in Sytsma’s particular case. Moreover, even if there was some acceleration of Sytsma’s cancer, as we have discussed, the mere fact of acceleration, without any evidence that the acceleration affected Sytsma’s prognosis, does not support the assertion that Gattex caused or hastened Sytsma’s death. Additionally, the Estate asserts that Sytsma’s medical records demonstrate that Sytsma’s tumor grew rapidly after she began taking Gattex. However, the temporal relationship between her use of Gattex and the growth of her tumor does not, on its own, support a reasonable inference that Gattex caused Sytsma’s cancer or hastened her death. See Lowery, 500 Mich at 1034 (“Relying merely on a temporal relationship is a form of engaging in the logical fallacy of post hoc ergo propter hoc (after this, therefore in consequence of this) reasoning.”) (quotation marks and citation omitted). In other words, lay fact-finders cannot be allowed to speculate as to causation based merely on timing. Instead, as we have discussed, whether Gattex caused Sytsma’s cancer, accelerated her cancer’s growth, affected her treatment, or hastened her death are matters beyond the ken of average jurors, which requires expert testimony. See Woodard, 473 Mich at 6. The Estate has failed to present expert testimony supporting its theory of causation and, without such expert testimony, the temporal relationship between Sytsma’s use of Gattex and her cancer symptoms does not create a material question of fact regarding causation. Moreover, even if it could be inferred from the onset of Sytsma’s symptoms that Gattex accelerated the growth of her tumor, as discussed, the mere fact of some amount of acceleration, without any evidence to connect the acceleration to Sytsma’s prognosis, does not support the assertion that Gattex caused or hastened Sytsma’s death. In sum, taken together, Wolf’s testimony, Schuetze’s draft report, Sytsma’s onset of symptoms following her use of Gattex, and general information regarding Gattex’s potential link to accelerated cancer growth were insufficient to establish that Sytsma’s use of Gattex was a cause in fact of her death. At best, this evidence indicates that Gattex accelerated the growth of Sytsma’s cancer, which suggests that Sytsma’s use of Gattex might have adversely affected her prognosis. However, although one might be tempted to assume that accelerating the growth of cancer would be adverse to the patient’s prognosis, causation cannot be based on conjecture or speculation. Skinner, 445 Mich at 164. Instead, the Estate would have to present additional evidence that demonstrated that there was a reasonable probability that Sytsma’s use of Gattex hastened her death. Id. at 166. It is thus fatal to the Estate’s causation theory that the Estate did not present testimony or evidence tending to show a reasonable probability that the acceleration of Sytsma’s cancer affected her prognosis and shortened her life. In other words, at most, the Estate presented evidence that suggested the possibility—not the probability—that Sytsma’s use -6- of Gattex shortened her life, which was not sufficient. See id. at 166-167. As a result, viewed in the light most favorable to the Estate, the evidence was insufficient to support an essential element of the Estate’s wrongful death claim; that is, the evidence does not support the assertion that Parker’s negligence was a cause in fact of Sytsma’s death. Consequently, defendants were entitled to judgment as a matter of law, and the trial court did not err by granting defendants’ motion for summary disposition under MCR 2.116(C)(10). III. MOTION TO STRIKE The Estate next argues that the trial court erred when it denied the Estate’s motion to strike Agulnik’s proposed expert opinion testimony on the ground that his proposed testimony was unreliable and not in accord with the facts. Alternatively, the Estate asserts that the trial court should have held an evidentiary hearing. Relevant to this argument, Agulnik opined that Sytsma had undiagnosed cancer when she presented at Pennock Hospital in January 2013. He also stated that individuals with cancer are hypercoagulable, meaning that they have a predisposition to arterial or venous clots. Wolf observed a clot—a thrombosis—in Sytsma’s colic vessels during surgery. It is defendants’ theory that this clot, caused by Sytsma’s hypercoagulable state, resulted in necrotic damage to Sytsma’s bowels that necessitated her second surgery and the removal of an additional portion of her bowel.3 A. STANDARD OF REVIEW This Court reviews a trial court’s evidentiary decision for an abuse of discretion. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). A trial court abuses its discretion when it selects an outcome that is outside the range of reasonable and principled outcomes. Id. “We review de novo questions of law underlying evidentiary rulings, including the interpretation of statutes and court rules.” Id. B. ANALYSIS Trial courts have discretion to consider the qualifications of a proposed expert and to determine whether his or her testimony is sufficiently reliable to be admitted at trial. See Gay v Select Specialty Hosp, 295 Mich App 284, 290; 813 NW2d 354 (2012). Nevertheless, trial courts must ensure that the expert and the proposed testimony meet the threshold requirements of the law at every stage of the litigation. Id. at 291. Under MRE 702, the court must “ensure that each aspect of an expert witness's testimony, including the underlying data and methodology, is reliable.” Elher, 499 Mich at 22. Specifically, 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 3 Although the wrongful death claim was properly dismissed, the Estate has pending medical malpractice claims relating to Sytsma’s injuries other than those that caused her death. See generally MCL 600.2921; Theisen v Knake, 236 Mich App 249, 256; 599 NW2d 777 (1999). -7- 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. Similarly, under MCL 600.2955(1), “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 considering the admissibility of the proposed opinion, courts must “examine the opinion and the basis for the opinion, which basis includes the facts, technique, methodology, and reasoning relied on by the expert,” and the court must also consider several enumerated factors. MCL 600.2955(1). However, “all of the factors may not necessarily apply in determining the reliability of scientific testimony,” and the court may premise its decision on the factor or factors that are dispositive. Elher, 499 Mich at 25-27. The proponent of expert testimony bears the burden of establishing its relevance and admissibility. Id. at 22. In this case, the Estate argues that Agulnik’s opinions were not supported by the facts of the case and that his opinions were not the product of reliable principles and methods.4 In arguing that Agulnik’s opinion was unsupported by the record evidence and was the result of unreliable principles and methods, the Estate attacks three distinct opinions: (1) that Sytsma had cancer before her bowel surgeries, (2) that persons with cancer are hypercoagulable, and (3) that Sytsma had blood clots that caused the loss of her colon and additional bowel losses. We address each separately. As noted, Agulnik offered his opinion that Sytsma had cancer before she reported to Pennock Hospital in January 2013. More specifically, he opined with a reasonable degree of medical certainty that Sytsma had cancer 15 to 18 months before she was diagnosed. He also opined that Sytsma lived her expected life expectancy for alveolar rhabdomyosarcoma. It is evident that Agulnik met the minimum requirements stated under MRE 702 and MCL 600.2955 to testify generally about cancer and specifically about the development and progression of rhabdomyosarcoma. Agulnik testified that he was a medical doctor and that he specialized in oncology. More specifically, he stated that he specialized in “bone and soft tissue sarcomas and cancers of the head and neck.” Notably, Agulnik estimated that he treated four to six patients who had adult-onset rhabdomyosarcoma every year for more than nine years. Of those patients, one or two per year were older than 65 years of age. Further, Agulnik testified that he reviewed some of Sytsma’s medical records, including the notes from Sytsma’s cancer treatment. As such, he had sufficient facts from which to derive his opinion. MRE 703. Based on his personal knowledge and experience treating adult-onset rhabdomyosarcoma as well as his review of the notes pertaining to Sytsma’s treatment in particular, Agulnik could offer a reliable opinion about when Sytsma likely developed her cancer and the progression of that cancer. MRE 702; MCL 600.2955(1); see also Elher, 499 Mich at 25 (stating that the relevant reliability concerns may focus on matters of personal knowledge and experience). Thus, the trial court did not abuse its 4 The Estate does not challenge whether Agulnik had the requisite education, experience, or training to offer an expert opinion. See MRE 702. -8- discretion to the extent that it denied the Estate’s motion to preclude Agulnik from offering an opinion on the origin, development, and prognosis of Sytsma’s cancer. Elher, 499 Mich at 21. Next, Agulnik testified that the term “hypercoagulative state” referred to a “predisposition to arterial or venous thromboses.” He opined that anyone with adult-onset rhabdomyosarcoma would be hypercoagulable. Agulnik acknowledged that there were no studies linking Sytsma’s specific cancer to hypercoagulability, but he nevertheless concluded that persons with that cancer would be at a high risk for thromboses. He relied in part on two articles, which indicate that individuals with cancer are at a heightened risk for thromboses.5 He also relied on his experience and other articles that he had read over the years. The fact that Agulnik had published literature in support of his view suggests that his opinion was reliable. See Elher, 499 Mich at 28; MCL 600.2955(1)(b). Furthermore, the Estate’s own experts— Means, Robey, Carroll and Goldstein—agreed that cancer may place a person at a higher risk for developing a blood clot. Their testimony was evidence that the medical community has generally accepted the proposition that cancer patients are at a heightened risk for blood clots. See MCL 600.2955(1)(e). Given the published literature and the testimony of other experts supporting the proposition that individuals with cancer may face a heightened risk of blood clots, Agulnik had a sound basis on which to offer his opinion that individuals with adult-onset rhabdomyosarcoma, such as Sytsma, are at a heightened risk of developing a blood clot. See Lenawee Co v Wagley, 301 Mich App 134, 162; 836 NW2d 193 (2013) (“The [threshold admissibility] inquiry is into whether the opinion is rationally derived from a sound foundation.” (citation omitted)). Consequently, the trial court did not abuse its discretion when it determined that Agulnik could offer these opinions at trial. Elher, 499 Mich at 21. Finally, contrary to the Estate’s contention, Agulnik never offered an opinion that Sytsma’s cancer caused her to have a particular blood clot or that a particular blood clot caused her loss of bowel. Agulnik admitted that he could not state the “etiology” of the blood clot found during Sytsma’s second surgery. He clarified that all he was stating was that “patients with malignancies are at risk for thromboses due to a hypercoagulable state” and whether a particular patient would develop a clot depended on “several cofounding factors that would impact that.” He specified that he did not intend to offer any opinion aside from the opinion that Sytsma was at “risk for clots.” The trial court was well aware of the limits on Agulnik’s testimony when it made its decision. At the hearing on the motion to strike, the lawyer for Pennock Hospital noted that Agulnik’s testimony was not intended to be sufficient to establish the claimed defense; he stated that Agulnik was presenting a “piece within his area of expertise” and that other experts would have to testify to “complete the puzzle.” Whether the other experts would be able to make the necessary connections to allow this defense at trial is not at issue in this appeal. The only issue 5 Although the two articles involved specific types of blood clots and whether to screen for cancer in patients who had an unexplained blood clot, the articles generally supported the conclusion that a person with cancer has a heightened risk for blood clotting. Indeed, the articles indicated that there has been a recognized link between cancer and thrombosis since 1865. -9- before us is whether the trial court abused its discretion in admitting the expert opinion testimony that Agulnik actually intends to offer. As discussed, the trial court did not abuse its discretion when it denied the Estate’s motion to preclude Agulnik’s expert testimony. 6 Elher, 499 Mich at 21. Affirmed. Having prevailed in full, defendants may tax costs pursuant MCR 7.219. /s/ Peter D. O’Connell /s/ Joel P. Hoekstra /s/ Brock A. Swartzle 6 Because the record evidence was sufficient to allow the trial court to make a reasoned decision on the reliability of the proposed testimony, it did not need to hold a hearing to explore whether Agulnik’s opinions were reliable. Therefore, the trial court also did not abuse its discretion when it refused to hold an evidentiary hearing on the issue. Lenawee Co, 301 Mich App at 162. -10-
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