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154489 - Teri Walters v Donald S. Falik

Teri Walters and Kim Walters,
Daniel W. Rucker
(Appeal from Ct of Appeals)
(Eaton – Eveland, T.)
Donald S. Falik, D.D.S., d/b/a Falik Family Dentistry, Robert C. Falik, D.D.S., and Jane Doe,
Ronald S. Lederman
Keith P. Felty


Defendant Donald S. Falik, DDS, conceded that he provided plaintiff Teri Walters with the wrong solution for whitening her teeth. Instead of the usual hydrogen peroxide solution, plaintiff was given a phosphoric acid solution used for etching teeth. A few months later, she was diagnosed with Wegener’s granulomatosis (WG), an autoimmune disease. Plaintiff’s proposed expert, M. Eric Gershwin, MD, an epidemiologist, opined that the disease was “triggered” by the exposure to phosphoric acid. Dr. Gershwin admitted that there was no scientific literature to support his conclusion that phosphoric acid causes WG; instead, the scientific literature stated that WG is a disease of unknown etiology. The trial court granted defendant’s motion to exclude Dr. Gershwin’s testimony, noting in part that none of the scientific articles presented by the parties referred to phosphoric acid or any kind of acid exposure as a cause of WG. In a split unpublished opinion, the Court of Appeals reversed and remanded for further proceedings. The majority relied on the Sir Bradford Hill criteria adopted by the Court of Appeals in Chapin v A&L Parts, Inc, 274 Mich App 122 (2007), for the proposition that a plaintiff need not “definitively establish a causal link between the exposure and WG,” and the appeals panel noted that “there is no indication that there exist any studies showing that phosphoric acid does not cause WG.” The dissenting judge concluded that, in view of the complete absence of support for Dr. Gershwin’s opinion, the trial court had not abused its discretion by granting the motion in limine. The Supreme Court has directed oral argument on the application for leave to appeal to address: (1) whether the Court of Appeals erred in its interpretation of MCL 600.2955(1) and MRE 702; and (2) whether the trial court erred in its application of those evidentiary standards or abused its discretion in granting the motion in limine to exclude the testimony of plaintiff’s experts and the motion for summary disposition.