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
LYNDA DANHOFF and DANIEL DANHOFF, UNPUBLISHED
May 6, 2021
Plaintiffs-Appellants,
v No. 352648
OAKLAND CIRCUIT COURT
DANIEL K. FAHIM, M.D. and MICHIGAN HEAD LC No. 2018-166129-NH
& SPINE INSTITUTE,
Defendants-Appellees,
and
DANIEL K. FAHIM, M.D., PC, KENNETH P
D’ANDREA, D.O., and WILIAM BEAUMONT
HOSPITAL, doing business as BEAUMONT
HOSPITAL-ROYAL OAK,
Defendants.
Before: TUKEL, P.J., and SERVITTO and RICK, JJ.
PER CURIAM.
In this medical malpractice action, plaintiffs Lynda Danhoff and Daniel Danhoff appeal as
of right the trial court’s order granting summary disposition to defendants Dr. Daniel K. Fahim,
M.D. and Michigan Head & Spine Institute.1 Plaintiffs argue that the trial court erred by
concluding that their standard of care expert, Dr. Christopher Koebbe, was not qualified to testify
as an expert witness because he failed to satisfy the standards for determining the reliability of
1
Defendants Daniel K. Fahim, M.D., PC; Dr. Kenneth P. D’Andrea, D.O.; and William Beaumont
Hospital, also known as Beaumont Hospital-Royal Oak, were all dismissed from this case. All
references to “defendants” will refer to Dr. Daniel K. Fahim, M.D. and Michigan Head & Spine
Institute. As Daniel Danhoff’s alleged cause of action is derivative of his wife Lynda’s claims, all
of our references to “plaintiff” refer to Lynda Danhoff.
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expert testimony first established by Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct
2786; 125 L Ed 2d 469 (1993); the basis for the trial court’s ruling was that Dr. Koebbe failed to
support his opinion with medical journals or other authority to establish his opinion’s reliability.
We find that the trial court acted within its discretion in ruling Dr. Koebbe’s testimony
inadmissible, and consequently we affirm the orders of the trial court.
I. UNDERLYING FACTS
This case arises from a December 7, 2015 surgery on plaintiff’s back. Dr. Fahim, a board-
certified neurosurgeon, was the lead surgeon. Plaintiff’s procedure was to be performed in two
separate surgeries; the first surgery, which occurred on December 7, 2015, is the surgery that
involved the alleged malpractice in this case. During this surgery, Dr. Fahim operated on
plaintiff’s L3 and L4 vertebrae.
The December 7, 2015 surgery was a minimally invasive procedure referred to as an
“extreme lateral intrabody fusion” (XLIF). During an XLIF procedure, surgeons make an incision
on the patient’s side and reach the patient’s spine by carefully moving fat and muscle out of the
way. As explained by Dr. Fahim, the entire procedure should take place in the “retroperitoneal
space,” which is “an area of fat that is behind the peritoneum.” “The peritoneum is what contains
all the intraabdominal structures; the intraabdominal organs,” including the sigmoid colon, which
is the only organ at issue in this case. Instruments called retractors are used to keep the peritoneum
space away from the location of the surgery. When done correctly, the sigmoid colon should be
about “12 to 15 centimeters away” from the location of the surgery. After reaching the spine, a
knife is then used on the relevant disk for the operation on the spine itself. According to Dr. Fahim,
the December 7, 2015 surgery “went without complications as far as anyone could tell at the time
of the procedure.”
Plaintiff experienced pain the day after the December 7 surgery and had a fever that rose
to a peak of 102.4 degrees Fahrenheit. Dr. Fahim, however, opined that these were normal
symptoms following an XLIF surgery and were not cause for concern. As a result, Dr. Fahim
proceeded with the second surgery on December 9, 2015, which took place without issue. The
following day, December 10, 2015, the location of the incision from the December 7 surgery
appeared red. Plaintiff’s temperature and blood pressure rose to the extent that she was taken to
the intensive care unit (ICU) and a computed tomography (CT) scan was taken; the CT scan
revealed “free air and free material outside the colon.”
Another surgery, the third, was then performed to rectify the issue. Dr. Anthony Iacco
performed this surgery and observed that stool was leaking from plaintiff’s sigmoid colon due to
a hole in it. Dr. Iacco suctioned up the stool and performed an ostomy to divert stool from
plaintiff’s sigmoid colon while it healed. During the surgery, Dr. Iacco observed a perforation of
plaintiff’s sigmoid colon near the incision site from the December 7 surgery. In all, plaintiff
required four surgeries in six days to correct the sigmoid colon issue; she was discharged from the
hospital on January 6, 2016.
Plaintiffs filed a complaint alleging, in relevant part, that Dr. Fahim committed medical
malpractice by puncturing plaintiff’s sigmoid colon during the December 7 surgery. According to
plaintiffs, Dr. Fahim’s actions constituted medical malpractice and Michigan Head & Spine was
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vicariously liable for its employee, Dr. Fahim. Plaintiffs additionally alleged that Daniel Danhoff
suffered the loss of plaintiff’s love and affection as a result of Dr. Fahim’s malpractice.
Defendants denied the allegations and after discovery moved for summary disposition,
arguing that plaintiffs’ standard of care expert, Dr. Koebbe, was not qualified because his standard
of care opinion was based solely on his experience and background. Plaintiffs responded, arguing
that Dr. Koebbe’s expert testimony was reliable, but they failed to provide any scholarly authority
supporting Dr. Koebbe’s testimony. In reply, defendants submitted affidavits from two doctors
stating that Dr. Fahim did not breach the standard of care. The trial court granted summary
disposition to defendants, but informed plaintiffs it would address the issue on reconsideration if
plaintiffs could provide additional authority supporting Dr. Koebbe’s standard of care testimony.
Plaintiffs moved for reconsideration and submitted an affidavit by Dr. Koebbe and scholarly
articles in support, but the trial court nevertheless denied plaintiffs’ motion. This appeal followed.
II. STANDARD OF REVIEW
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of a complaint and is reviewed de novo. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205-206;
815 NW2d 412 (2012). This Court reviews a motion brought under MCR 2.116(C)(10) “by
considering the pleadings, admissions, and other evidence submitted by the parties in the light
most favorable to the nonmoving party.” Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d
369 (2018). Summary disposition “is appropriate if there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law.” Id. “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). “Only the substantively admissible evidence actually
proffered may be considered.” 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 525;
773 NW2d 57 (2009) (quotation marks and citation omitted). “Circumstantial evidence can be
sufficient to establish a genuine issue of material fact, but mere conjecture or speculation is
insufficient.” McNeill-Marks v Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d
528 (2016). “Like the trial court’s inquiry, when an appellate court reviews a motion
for summary disposition, it makes all legitimate inferences in favor of the nonmoving
party.” Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994); see also Dextrom v
Wexford Co, 287 Mich App 406, 415; 789 NW2d 211 (2010) (a court must draw all reasonable
inferences in favor of the nonmoving party).
The moving party has the initial burden to support its claim with documentary evidence,
but once the moving party has met this burden, the burden then shifts to the nonmoving party to
establish that a genuine issue of material fact exists. AFSCME v Detroit, 267 Mich App 255, 261;
704 NW2d 712 (2005). Additionally, if the moving party demonstrates that the nonmovant lacks
evidence to support an essential element of one of his or her claims, the burden shifts to the
nonmovant to present sufficient evidence to dispute that fact. Lowrey v LMPS & LMPJ, Inc, 500
Mich 1, 7; 890 NW2d 344 (2016).
“The trial court’s decision regarding whether an expert witness is qualified is reviewed for
an abuse of discretion.” Turbin v Graesser, 214 Mich App 215, 217-218; 542 NW2d 607 (1995).
“An abuse of discretion occurs when the decision resulted in an outcome falling outside the range
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of principled outcomes.” Hayford v Hayford, 279 Mich App 324, 325-326; 760 NW2d 503 (2008).
A decision on a close evidentiary question ordinarily cannot constitute an abuse of discretion, Barr
v Farm Bureau Gen Ins Co, 292 Mich App 456, 458; 806 NW2d 531 (2011), but an erroneous
application of the law is by definition an abuse of discretion, Gay v Select Specialty Hosp, 295
Mich App 284, 292; 813 NW2d 354 (2012).
Finally, “[t]his Court reviews for an abuse of discretion a trial court’s decision on a motion
for reconsideration.” In re Estate of Moukalled, 269 Mich App 708, 713; 714 NW2d 400 (2006).
MCR 2.119(F)(3) provides:
Generally, and without restricting the discretion of the court, a motion for
rehearing or reconsideration which merely presents the same issues ruled on by the
court, either expressly or by reasonable implication, will not be granted. The
moving party must demonstrate a palpable error by which the court and the parties
have been misled and show that a different disposition of the motion must result
from correction of the error.
III. ANALYSIS
“A plaintiff in a medical malpractice action must establish (1) the applicable standard of
care, (2) breach of that standard of care by the defendant, (3) injury, and (4) proximate causation
between the alleged breach and the injury.” Elher v Misra, 499 Mich 11, 21; 878 NW2d 790
(2016) (citation and quotation marks omitted). In general, “expert testimony is required in a
malpractice case in order to establish the applicable standard of care and to demonstrate that the
professional breached that standard.” Id. (citation and quotation marks omitted). But an expert
witness is not required “when the professional’s breach of the standard of care is so obvious that
it is within the common knowledge and experience of an ordinary layperson.” Id. at 21-22 (citation
omitted). Finally, “[t]he proponent of the evidence has the burden of establishing its relevance
and admissibility.” Id. at 22 (citation omitted). “The proponent of expert testimony in a medical
malpractice case must satisfy the court that the expert is qualified under MRE 702, MCL 600.2955
and MCL 600.2169.” Elher, 499 Mich at 22 (citation and quotation marks omitted).
MRE 702 incorporates the Daubert standard. See Gilbert v DaimlerChrysler Corp, 470
Mich 749, 781; 685 NW2d 391 (2004) (noting that “MRE 702 has . . . been amended explicitly to
incorporate Daubert’s standards of reliability.”). It 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 (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.
The trial court’s obligation under Daubert generally is referred to as “gatekeeping” or the
“gatekeeper role.” See Gilbert, 470 Mich at 782. MRE 702, as applied to the trial court’s discharge
of its gatekeeping role, “requires the circuit court to ensure that each aspect of an expert witness’s
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testimony, including the underlying data and methodology, is reliable.” Elher, 499 Mich at 22
(citation omitted; emphasis added). Reliability for purposes of Daubert is a term of art. “The
objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to
make certain that an expert, whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho Tire Co, Ltd v Carmichael, 526 US 137, 152;
119 S Ct 1167; 143 L Ed 2d 238 (1999). “The inquiry envisioned by Rule 702 is, we emphasize,
a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance
and reliability—of the principles that underlie a proposed submission. The focus, of course, must
be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509
US at 594-595. Furthermore,
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. Thus, it is insufficient for the proponent of expert opinion merely
to show that the opinion rests on data viewed as legitimate in the context of a
particular area of expertise (such as medicine). The proponent must also show that
any opinion based on those data expresses conclusions reached through reliable
principles and methodology. [Gilbert, 470 Mich at 782.]
Thus, we are called on to review whether the trial court abused its discretion in finding that
Dr. Koebbe’s testimony regarding the standard of care failed to establish reliability as Daubert
defined that term.
Daubert set forth a non-exhaustive list of factors for a trial court to consider in making the
reliability determination. The factors include: (1) whether the theory or technique has been tested;
(2) whether the theory or technique has been subjected to peer review and publication, (3) the
known or potential rate of error; and (4) the general acceptance of the scientific technique.
Daubert, 509 US at 593-594.
In considering the medical opinion testimony of an expert in a malpractice case, our
Supreme Court has held that “[a] lack of supporting literature, while not dispositive, is an important
factor in determining the admissibility of expert witness testimony.” Elher, 499 Mich at 23
(citation omitted). Furthermore, “[u]nder MRE 702, it is generally not sufficient to simply point
to an expert’s experience and background to argue that the expert’s opinion is reliable and,
therefore, admissible.” Id. (citation and quotation marks omitted). Consequently, standard of care
experts, such as Dr. Koebbe, generally must base their standard of care expert testimony on
something more than their experience and background. See id.
The standard of care is a threshold issue that an expert witness must be qualified to testify
about before a trial court even considers the expert witness’s substantive testimony. See MCL
600.2912a(1). Accordingly, the trial court must first exercise the gatekeeping function regarding
the applicable standard of care before determining that the witness is qualified to testify as an
expert as to the applicable standard of care. MCL 600.2912)a(2); see also Kumho Tire Co, 526
US at 149; citing Daubert, 509 US at 590 and 592 (holding that Rule 702 “establishes a standard
of evidentiary reliability” which “requires a valid . . . connection to the pertinent inquiry as a
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precondition to admissibility”); Gilbert, 470 Mich at 780 n 46 (MRE 702 provides that the trial
the court’s determination of the reliability of expert testimony “is a precondition to admissibility”).
Plaintiffs have appealed two separate orders in this case: (1) the trial court’s order granting
summary disposition to defendants and (2) the trial court’s order denying plaintiffs’ motion for
reconsideration. Because Dr. Koebbe’s standard of care testimony was supported by medical
literature at the motion for reconsideration stage only, we will address each order separately. See
Pena v Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003) (“[W]e only
consider what was properly presented to the trial court before its decision on the motion.”).
A. MOTION FOR SUMMARY DISPOSITION
In granting summary disposition, the trial court ruled:
While the Court recognizes that, practically, there may have been a breach of the
standard of care, the law requires that expert testimony have a basis in recognized
scientific or technical principles. The Court finds that Dr. Koebbe’s testimony
regarding the standard of care is not sufficiently reliable for admission under MRE
702. Dr. Koebbe is Plaintiffs’ sole standard of care witness. Without establishing
the proper standard of care, Plaintiffs cannot maintain a claim for medical
malpractice. Weymers v Khera, 454 Mich 639, 647 (1997); see also Locke v
Pachtman,446 Mich 216,222 (1994). Therefore, based on the evidence before it,
the Court has no choice but to strike Dr. Koebbe’s testimony and grant Defendant's
Motion.
At the summary disposition phase of the trial court proceedings Dr. Koebbe’s standard of
care testimony was not supported by any literature. As explained earlier, standard of care opinion
testimony must be reliable and “[a] lack of supporting literature, while not dispositive, is an
important factor in determining the admissibility of expert witness testimony.” Elher, 499 Mich
at 23 (citation omitted). Furthermore, “[u]nder MRE 702, it is generally not sufficient to simply
point to an expert’s experience and background to argue that the expert’s opinion is reliable and,
therefore, admissible.” Id. (citation and quotation marks omitted). Indeed, both the US Supreme
Court and the Michigan Supreme Court have emphasized that an expert witness’s mere say so, or
ipse dixit, is insufficient to establish reliability of the proposed testimony. See Gen Elec Co v
Joiner, 522 US 136, 146; 118 S Ct 512; 139 L Ed 2d 508 (1997) (noting that “nothing in
either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence
that is connected to existing data only by the ipse dixit of the expert. A court may conclude that
there is simply too great an analytical gap between the data and the opinion proffered.”); Kumho
Tire, 526 US at 137 (same, citing Joyner); Gilbert, 470 Mich at 783 (same, citing Joyner).
Plaintiffs argue that no case holds that a witness must support his or her opinion with
scholarly articles. That is of course correct, because Daubert’s list of permissible factors to
consider at the gatekeeping stage is non-exhaustive. But the fact that scholarly support for a
position is not required is not dispositive; there must be some evidence, beyond the witness’s mere
say so, that establishes that the opinion is based on reliable principles. However, at the summary
disposition stage in this case, Dr. Koebbe’s testimony was based entirely on his background and
experience. Plaintiffs and Dr. Koebbe failed to support. his standard of care testimony with
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supporting literature; and they similarly failed to establish that Dr. Koebbe’s standard of care
opinion was the product of any other reliable principle or methods. As such, his testimony was
not admissible under MRE 702.
In his deposition, Dr. Koebbe testified that perforating the sigmoid colon is an extremely
rare complication during XLIF procedures and that, because that type of injury is so rare, “more
likely than not, an instrument went awry or something apparent that would, to me, violate the
standard of care.” Consequently, Dr. Koebbe’s standard of care opinion amounted to concluding
that the breach of the standard of care was based solely on the unlikelihood of such an injury. Dr.
Koebbe’s opinion may well be correct, as the trial court noted, as rare injuries during medical
procedures are undoubtedly frequently the result of malpractice, and it may even be the case that
the more rare a complication, the more likely it was due to malpractice. But Dr. Koebbe’s standard
of care opinion testimony was based entirely on his and his assumptions in that regard, solely as a
result of his own background and experience. Indeed, at his deposition, Dr. Koebbe testified that
he conducted a search for relevant medical literature, but only to confirm his preexisting notion
that an injury to the sigmoid colon during such surgery is extremely unusual; Dr. Koebbe could
not find any medical literature to support his standard of care opinion that any injury to the sigmoid
colon during such surgery was ipso facto outside the standard of care, and in fact his research
supported the opposition conclusion—although such injuries are in fact very rare, they are not non-
existent. Even more to the point, no such articles or other supporting methodology were provided
to the trial court before it granted summary disposition to defendants.
Consequently, at the summary dispositions stage, the information before the trial court
established that Dr. Koebbe’s standard of care opinion was based solely on his own knowledge
and experience. As such, Dr. Koebbe’s opinion was not based on any methodology other than his
bare assertion that he had never heard of such an injury, and therefore, he would conclude that any
such injury was caused by malpractice. But plaintiff, and by extension Dr. Koebbe, failed to
establish that this opinion was shared by the broader medical community or that it was in any way
a reliable method for identifying malpractice. Indeed, and even apart from the application of the
Daubert standard, Michigan has long held that the ipse dixit of an expert is insufficient to establish
the standard of care in medical malpractice cases. See Ballance v Dunnington, 241 Mich 383,
386-387; 217 NW 329 (1928) (“The standard of care, skill, and diligence required of an X-ray
operator is not fixed by the ipse dixit of an expert, but by the care, skill, and diligence ordinarily
possessed and exercised by others in the same line of practice and work in similar localities.”).
Furthermore, MRE 702 is not fulfilled by an expert simply having a methodology used to
determine his or her expert opinion; rather, MRE 702 requires a showing that “the testimony is the
product of reliable principles and methods.” MRE 702 (emphasis added). Plaintiffs failed to make
that showing. Consequently, at the summary disposition stage the trial court did not abuse its
discretion, by concluding that Dr. Koebbe’s testimony was inadmissible under MRE 702.
B. MOTION FOR RECONSIDERATION
As noted, the trial court ruled that it had “no choice” at the summary disposition stage but
to rule Dr. Koebbe’s proposed testimony inadmissible, because there was no basis for finding it
reliable. Nonetheless, the trial court went on to invite additional briefing on the topic. The trial
court stated, “However, if there is a basis for Dr. Koebbe’s testimony of which the Court is
unaware, the Plaintiffs are invited to file a motion for reconsideration of this opinion.”
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Plaintiffs did file additional material with the trial court, consisting of some medical
literature. The only fact that literature established however, was that bowel injuries, such as a
perforated sigmoid colon, are exceedingly rare in XLIF procedures. Although we address that
literature on the merits, as did the trial court, we first pause to note that both the trial court, and
this Court, could simply deny the motion because it provided nothing which could not have been
provided at the time of the motion for summary disposition. This Court has previously stated that
“[w]e find no abuse of discretion in denying a motion [for rehearing] resting on a legal theory and
facts which could have been pled or argued prior to the trial court’s original order.” Woods v SLB
Prop Mgt, LLC, 277 Mich App 622, 629-630; 750 NW2d 228 (2008) (quotation marks and citation
omitted). We agree, but we nevertheless choose to address this issue on the merits.
As explained by the trial court, the medical article and abstracts plaintiffs provided did not
actually directly support Dr. Koebbe’s standard of care opinion that the injury to plaintiff’s sigmoid
colon during the December 7, 2015 surgery was malpractice per se. Rather, those articles
established that such an injury is quite rare. They did not, however, make the connection between
rare occurrences in surgery and malpractice on which Dr. Koebbe based his opinion. Similarly,
the articles did not address whether bowel injuries were “acceptable” or “unacceptable”
complications of XLIF surgeries. Indeed, these articles did not even address medical malpractice
or the standard of care; they only collected statistics on the numbers of incidences of such injuries.
As such, we do not see how they could possibly support an argument that Dr. Koebbe’s standard
of care opinion was the product of reliable principles and methods. While Dr. Koebbe used the
conclusions from these articles regarding the rarity of sigmoid colon injuries during XLIF surgeries
to bolster his standard of care opinion, they failed to establish that Dr. Koebbe used any
methodology to form his opinion, or that if he did so such methodology was reliable.
Finally, we additionally note that the trial court gave plaintiffs every opportunity to cure
the deficiencies in Dr. Koebbe’s testimony. Indeed, the trial court even invited plaintiffs to raise
the issue on reconsideration and specifically asked plaintiffs to provide documentary support for
Dr. Koebbe’s standard of care testimony. By doing so, the trial court told plaintiffs what it deemed
necessary to make Dr. Koebbe’s expert testimony admissible. Nevertheless, plaintiffs still failed
to establish that Dr. Koebbe’s standard of care testimony was based on reliable methods, and
defendant countered it with expert opinions stating that Dr. Kibbe’s opinion and methodology were
unreliable. Thus, the trial court certainly did not abuse its discretion by denying plaintiffs’ motion
for reconsideration.
IV. CONCLUSION
For the reasons stated in this opinion, the trial court’s orders granting summary disposition
to defendants and denying plaintiffs’ motion for reconsideration are affirmed. Defendants, as the
prevailing parties, may tax costs pursuant to MCR 7.219.
/s/ Jonathan Tukel
/s/ Michelle M. Rick
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