Medical and economic expert testimony: some insights from Clerc


The admission of expert testimony in Michigan is rarely a straightforward matter—yet it can make or break a plaintiff’s case. It is critical, therefore, for litigators to remain up-to-date on Michigan appellate courts’ jurisprudence in this area. Clerc v Chippewa County War Memorial Hospital is the latest entry in this field.

In Clerc, the defendants allegedly failed to detect cancer in an x-ray of the plaintiff’s decedent’s lungs. By the time the decedent’s cancer was diagnosed the following year, it had advanced significantly. The plaintiff brought a medical malpractice action, claiming that, had the defendants diagnosed the decedent’s cancer earlier, her life expectancy would have been much greater.

The defendants challenged the proposed testimony of the plaintiff’s medical expert. This physician used “backward staging,” which involves using the plaintiff’s medical records and a general knowledge about the progression of cancers to determine what stage the plaintiff’s cancer was likely in when the defendants examined her x-ray. The defendants argued that this testimony was inadmissible because it had no known error rate and had not been validated by control studies.

The Court of Appeals concluded that it was admissible, however, because (a) it was based on an examination of the plaintiff’s medical records and the expert’s knowledge as a certified oncologist, (b) backward staging is generally accepted by oncologists, and (c) there was no evidence that the expert applied backward staging in an unreliable manner. The panel’s ruling was based, in part, on the impossibility of conducting control studies on backward staging, as that would involve a deliberate failure to treat known illnesses in test subjects.

The Court of Appeals also held that the testimony of the plaintiff’s proposed economic expert was admissible. The defendants’ main argument was that the plaintiff was entitled only to compensation for “loss of financial support” and, therefore, the plaintiff’s expert’s proposed testimony about the decedent’s future earnings was irrelevant and prejudicial. The Court of Appeals held that “establishing the decedent’s future earnings is necessary to determine the loss of financial support” and, therefore, “testimony regarding the decedent’s future earnings is relevant to the damages recoverable under the wrongful death act.”

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