Rita Walsh v. Marc Sakwa Md

            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


RITA WALSH and GARY WALSH,                                            UNPUBLISHED
                                                                      July 08, 2025
              Plaintiffs-Appellees,                                   12:14 PM

v                                                                     No. 356517
                                                                      Oakland Circuit Court
MARC SAKWA, M.D., and WILLIAM                                         LC No. 2016-155529-NH
BEAUMONT HOSPITAL,

              Defendants-Appellants,

and

SOUTHEASTERN MICHIGAN
CARDIOVASCULAR SURGEONS PLLC,

              Defendant.


                                          ON REMAND


Before: GADOLA, C.J., and BORRELLO and M. J. KELLY, JJ.

BORRELLO, J. (dissenting).

        I maintain my colleagues’ majority opinion that Dr. Louis Samuels, M.D.’s expert
testimony is inherently unreliable and consequently inadmissible is erroneous. Furthermore, I
contest their assertion that our Supreme Court’s ruling in Danhoff v Fahim, M.D., 513 Mich 427;
15 NW3d 262 (2024), does not necessitate a reevaluation of my colleagues’ prior conclusions on
remand. Accordingly, I again respectfully dissent, and reiterate my prior conclusions regarding
this matter.

       As I stated in my prior dissent:

              Here, Samuels, a board-certified cardiothoracic surgeon who had
       experience in performing the surgical procedure at issue in this case, testified at the


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Daubert hearing that if the procedure is performed correctly within the standard of
care, there is no reason for the surgeon’s needle to ever enter the right atrium where
it could potentially ensnare the Swan-Ganz catheter. Samuels explained that it is a
basic principle of surgery that a surgeon needs to always know where a needle,
knife, or other instrument is going within the patient’s body. Samuels also testified
that the location of the incision in the left atrium, which the surgeon knows will
have to be stitched closed at the end of the procedure, must be chosen by the
surgeon to avoid the possibility of “blindly” putting a needle or stitch some place,
especially since the surgeon knows that the Swan-Ganz catheter is present in the
right atrium and cannot be seen visually. There is no dispute that the inside of the
right atrium where the Swan-Ganz catheter is located cannot be seen by the surgeon
during the procedure. In light of these considerations, Samuels opined that it was
a breach of the standard of care for a surgeon to allow the needle to enter the right
atrium and ensnare the Swan-Ganz catheter under the circumstances that existed in
this case.

        Additionally, the articles in the record and cited by Samuels make clear that
inadvertently suturing the Swan-Ganz catheter during [minimally] invasive mitral-
valve-repair surgery is a potential problem to be avoided by remaining aware of its
presence and location during the operation, and by exercising due caution in placing
sutures. These articles thus support the basis for Samuels’ conclusion. One article,
which lists Mehmet Kaplan, M.D. as the first author (the Kaplan article), concluded
that “the surgeon should not leave the Swan-Ganz catheter in the suture while
closing the right or left atriotomy or during venous cannulation.” The Kaplan
article discussed the complications that arise, including the necessity of
“reoperation,” when a Swan-Ganz catheter is sutured to the heart. The authors
advised “while completing the atrial sutures, the route of the Swan-Ganz catheter
in the atrium should be taken into account and the surgeon should be careful not to
leave it in the sutures,” after which the catheter should be moved to ensure that it
was not caught in the sutures. Another article, which listed Eduard J. Vucins, M.D.,
as the first author, discussed the risk of inadvertently entrapping the Swan-Ganz
catheter with a suture during cardiac surgery, potentially serious complications that
could result, and steps taken to decrease the possibility of catheter entrapment so as
to avoid the potential for those complications.

        Defendants argue that Samuels’ opinion testimony was unreliable because
he could not cite literature or other qualified experts who had already expressly
stated the same conclusion, using identical syntax, that Samuels had reached
regarding the standard of care in this case. However, defendants have lost sight of
the fact that the relevant inquiry by the trial court in fulfilling its duty to ensure that
“an expert’s testimony both rests on a reliable foundation and is relevant to the task
at hand,” [Daubert v Merrell Dow Pharm, Inc, 509 US 579, 597; 113 S Ct 2786;
125 L Ed 2d 469 (1993)], is “a flexible one” that focuses “solely on principles and
methodology, not on the conclusions that they generate,” id. at 594-595. The
“overarching subject” of this inquiry is “the scientific validity and thus the
evidentiary relevance and reliability—of the principles that underlie a proposed
submission.” Id. (emphasis added). Defendants’ improper focus on Samuels’


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       conclusion rather than his principles and methodology is insufficient to demonstrate
       that the trial court abused its discretion. Id. The majority’s analysis suffers from
       the same deficiency.

               Moreover, our Supreme Court has recognized that “it is within a trial court’s
       discretion how to determine reliability”; that the relevancy of the Daubert factors
       in assessing reliability may be affected by “the nature of the issue, the expert’s
       expertise, and the subject of the expert’s testimony”; and that “in some cases, the
       relevant reliability concerns may focus upon personal knowledge or experience.”
       [Elher v Misra, 499 Mich 11, 24-25; 878 NW2d 790 (2016)] (quotation marks and
       citation omitted). The instant case is one of those cases where perhaps the most
       relevant reliability concern is Samuels’ experience as a surgeon in performing the
       mitral-valve repair operation and the application of general principles of surgery to
       avoid blindly inserting a needle into an area of the body that cannot be seen while
       being aware of the undisputed importance of avoiding entrapping the catheter
       residing in that unseen portion of the heart. Furthermore, unlike the expert witness
       who was excluded from testifying in Elher, Samuels cited literature and other
       colleagues’ opinions that supported his opinions. See Elher, 499 Mich at 14. The
       trial court fully explained the basis for its ruling in this case, including the factors
       it found relevant and the factors that were not applicable. In summation, the trial
       court did not err in its findings of fact or law. [Walsh v Sakwa, unpublished per
       curiam opinion of the Court of Appeals, issued September 1, 2022 (Docket No.
       356517) (BORRELLO, J., dissenting), pp 2-3.]

        I continue to subscribe to the above analysis, especially in light of our Supreme Court’s
analysis in Danhoff. In Danhoff, our Supreme Court clearly explained that a trial court’s inquiry
when performing its gatekeeping function in this context is “flexible based on the circumstances
of each case but may include a determination that the expert’s theory or the techniques used to
generate that theory—but not the expert’s conclusions—can be tested, has been subjected to peer
review and publication, has a known or potential error rate, or is generally accepted among the
scientific community.” Danhoff, 513 Mich at 444 (emphasis added). In that case, “Dr. Koebbe
opined that because a bowel perforation like plaintiff experienced is so rare and so likely to have
been caused by a medical instrument in an area it should not have been that it constitutes a breach
of the standard of care,” and our Supreme Court stated, “This key fact makes a difference.” Id. at
451.

        Dr. Samuels presented testimony asserting that adherence to fundamental surgical
principles, combined with a thorough understanding of relevant anatomical considerations, would
render it unnecessary for the surgeon’s needle to penetrate the right atrium, where the Swan-Ganz
catheter was located. If believed, the ensnarement of the catheter could only be attributed to
negligent practices on the part of defendant. Contrary to the conclusions reached by my colleagues,
I conclude that Dr. Samuels’ expert opinion drew upon both his clinical experience and pertinent
medical literature, which were included in the record.

        In further contrast to the arguments posited by my colleagues in the majority, Dr. Samuels
articulated specific procedural adjustments that could have been implemented to prevent the
entrapment of the Swan-Ganz catheter within the sutures. He underscored the imperative for


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surgeons to maintain a clear awareness of the needle’s trajectory within the patient’s anatomy and
to judiciously select the incision site to mitigate the risk of entangling the unseen Swan-Ganz
catheter. Dr. Samuels thereby delineated a clear standard of care that was applicable in this case
and illustrated how it was breached under the circumstances. Hence, I remain in support of
affirming the trial court’s ruling.

                                                            /s/ Stephen L. Borrello




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