154489 - Teri Walters v Donald S. Falik
Attorney Information
Teri
Walters and Kim Walters,
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Daniel W. Rucker
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Plaintiffs-Appellees,
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v
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(Appeal from Ct of Appeals)
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(Eaton – Eveland, T.)
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Donald S. Falik, D.D.S.,
d/b/a Falik Family Dentistry, Robert C. Falik, D.D.S., and Jane Doe,
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Ronald S. Lederman
Keith P. Felty
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Defendants-Appellants.
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Summary
Page Content
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split unpublished opinion, the Court of Appeals reversed and remanded for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.