LITIGATION AND LEGISLATION

You can’t say that

Laurance JerroldJacksonville, Fla

You have decided to be an expert witness for thedefense in a malpractice case. You are board cer-tified and have lots of other supporting creden-

tials. Your testimony was taken at a de benne essedeposition. This type of deposition is videotaped andtaken in anticipation of your being unavailable to testifyat the trial. At this type of deposition, you are sworn in asyou would be at the trial, you provide your direct testi-mony, and you are also cross-examined by the opposingcounsel. The entire deposition is preserved, and the re-cording can then be introduced at the trial if you cannotappear.

Mackenzie v Koziarski, no. 289234 (Mich Ct. App.,March 22, 20011), dealt with this issue when, on theday before the trial, the defendant sought to have theplaintiff’s expert declared incompetent to testify becausehis opinion was not reliable. The trial court noted thatthe expert was highly qualified and board certified;therefore, his deposition testimony could be read intothe record. A directed verdict was given at the trial basedon another matter, an appeal ensued, and this issue—thereliability of an expert’s testimony based on his creden-tials and unsupported opinion—was 1 issue addressed inthe appeal. Now for the facts.

The patient was operated on and died. The defen-dant, a board-certified general surgeon, elected to usea laparoscopic approach instead of an open one to repairthe patient’s hernia. During the deposition of the plain-tiff’s expert, he opined that, although the surgery wasperformed adequately, and a perforated bowel (whichultimately caused the patient to suffer sepsis and thendeath) was a known potential negative sequela of a lap-aroscopic approach, the surgeon was nonetheless negli-gent because (1) the patient suffered from multipleadhesions, which made laparoscopic bowel perforationmore likely; (2) the risk of perforation is lower in openthan in closed procedures; and (3) if perforations occur,they are more detectable and more amenable to correc-tion in open vs closed procedures. The plaintiff’s expertalso noted during his deposition that, although he was

President, Orthodontic Consulting Group, LLC, Jacksonville, Fla.Am J Orthod Dentofacial Orthop 2012;141:248-90889-5406/$36.00Copyright � 2012 by the American Association of Orthodontists.doi:10.1016/j.ajodo.2011.10.017

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familiar with laparoscopic surgery, (1) he himself hadperformed fewer than 30 of the procedures in question,(2) that he was not performing the procedure in questionwhen the incident gave rise to the lawsuit, (3) he couldnot remember the last time he performed this procedure,(4) the surgical principles are the same regardless of theexact type of surgery performed, and (5) he had devel-oped a new method of open surgery that would havebeen preferable under the circumstances. The trial courtruled that the expert was qualified to render his opin-ions, and that his relative lack of familiarity with the pro-cedure in question should go to the weight of histestimony as determined by the jury rather than to its ad-missibility.

The appellate court ruled that the trial court erred bynot attending to its “gatekeeper” function, since trialcourts have wide discretion in determining what evi-dence is admissible. When it comes to scientific evidence,they cannot allow evidence to be admitted solely be-cause the expert proffering that testimony is highly qual-ified or has board certification. Rather, trial courts mustperform a gatekeeping examination as to the reliabilityof the testimony proffered. This function is based onthe principles elaborated in Daubert (cit omit), a land-mark case dealing with the admissibility of scientific ev-idence. Michigan codified Daubert in MCL 600.2955(1)and MRE 702, which require courts to determine the fol-lowing.

1. Whether the opinion and its basis have been sub-jected to scientific testing and replication.

2. Whether the opinion and its basis have been sub-jected to peer-review publication.

3. The existence and maintenance of generally ac-cepted standards governing the application and in-terpretation of the methodology or technique, andwhether the opinion and its basis are consistentwith those standards.

4. The known or potential error rate of the opinion andits basis.

5. The degree to which the opinion and its basis aregenerally accepted in the relevant expert commu-nity. “Relevant expert community” means peoplewho are knowledgeable in the field of study, andare gainfully employed and applying that knowl-edge on the free market.

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6. Whether the basis for the opinion is reliable andwhether experts in that field would rely on thesame basis to reach the type of opinion beingproffered.

7. Whether the opinion or methodology is relied uponby experts outside the context of litigation.

The appellate court was clear in its holding. It statedthat the gatekeeping role of the trial judge:

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[M]andates a searching inquiry, not just of the dataunderlying expert testimony, but also of the mannerin which the expert interprets and extrapolates fromthat data. Thus it is insufficient for the proponent ofan expert opinion merely to show that the opinionrests on data viewed as legitimate in the context ofa particular area of expertise (such as medicine). Theproponent must also show that any opinion basedon those data expresses conclusions reached throughreliable principles and methodology.

The appellate court also noted established case lawholding that:

The trial court’s role as gatekeeper does not require itto search for absolute truth, to admit only uncontestedevidence, or to resolve genuine scientific disputes.Rather, an evidentiary hearing. is merely a thresholdinquiry to ensure that the trier of fact is not called onto rely in whole or in part on an expert opinion that isonly masquerading as science. An expert’s opinion isnot necessarily unreliable if it is not shared by allothers in the field or if there exists some conflictingevidence. A trial court does not abuse its discretionby nevertheless admitting an expert opinion, as longas the opinion is rationally derived from a sound foun-dation. The exercise of the trial court’s gate-keeperrole is within its discretion, but the trial court maynot abandon its obligation or perform the functioninadequately (cits omit).

The case was remanded for a new trial.

COMMENTARY

So, what’s the message? Probably the most impor-tant message the court was sending was that expertscan’t get up on a witness stand and say, “Well, in myhands.” or “it has been my experience that.” or

erican Journal of Orthodontics and Dentofacial Orthoped

“most doctors I know believe.” and similar state-ments.

The court was saying that an expert’s opinion mustbe based on data such as peer-reviewed articles on thesubject, information obtained at duly sponsored scien-tific meetings that offer continuing education creditsfor attending the lectures where such data are dissemi-nated, experience gained through practice and teachingat accredited universities and interacting with other fac-ulty members concerning that topic, engaging in re-search that has passed muster or scrutiny regarding themethodology and the analyses used to analyze thedata, and so on. We cannot, nor should we, support ex-pert testimony that does not have at its core a foundationbased on clinical or basic science relating to the issue inquestion. Of course, that is the problem in a nutshell.

Current clinical science in orthodontics is somewhatvague and misleading. What we do does not lend itselfto the same exactitude that is found in other areas ofclinical medicine. Our diagnostics often deal with thesubjective rather then the objective, our ministrationsare often patient dependent, the techniques availableto elicit a certain result are many, and in many caseswe are faced with an “all roads lead to Rome” result.No, unfortunately, we are not always or even oftenable to perform clinical orthodontic studies in thesame manner as other areas of the healing arts can.

That being said, there is no reason to throw in thetowel and go back to the glorious days of yesteryear of“in my hands”; well, you get the picture. Let’s all just de-cide to step it up a notch. Let’s try to inject a little morescience into our expert testimonies, and let’s try to be asreliable as our gatekeepers hope we will be. Merely be-cause our science is a little weaker than we would likedoes not mean it is a free-for-all and that anybody is en-titled to say anything to support the side of the benchthat he or she is advocating. Until the day comes, if itever does, that the science of orthodontics becomesa hard science instead of a soft one, let’s use the sciencewe have, eradicate the junk, minimize the unsubstanti-ated, and understand that in the end there is still a pa-tient who believes he or she has been injured anda doctor who believes he or she has been wronged,and that somewhere in the middle lies the truth.

ics February 2012 � Vol 141 � Issue 2