In Kiefer v Markley, the Court of Appeals held "reluctantly" that the trial court did not abuse its discretion in striking plaintiff's expert witness in a medical malpractice action.

The plaintiff's expert specialized in hand surgery, reconstructive surgery of the extremities, and cosmetic surgery. He devoted 30-40% of his practice to hand surgery, the specialty at issue in the case.

Under MCL 600.2169, the plaintiff's expert was required to spend a majority of his time in the relevant specialty. Because he spent at most 40% of his time performing hand surgery, the court held that his testimony was properly stricken.

There was a dissent. The dissenting judge argued, basically, that when the statute said "majority" it really meant "plurality." The majority opinion also concentrated on this issue.

I find the concentration on the majority vs. plurality issue strange. I find it strange because I think the more salient question is what is meant by specialty. Plaintiff's expert practiced hand surgery and reconstructive surgery on the extremeties as well as cosmetic surgery. How far do we parse "specialty"? Why can't we combine hand surgery and surgery on extremeties to prduce a majority specialty that would permit the expert to testify? What are the standards for determining what a specialty is under the statute?

My first thought was that maybe there is some law on this issue that I am not aware of that forced the discussion towards the majority/plurality issue rather than the specialty issue. This might still be the case. But the majority suggests that it "reluctantly" affirmed the trial court under the abuse of discretion standard, alluding to the fact that they would have considered hand surgery and extremety surgery the same specialty but were not prepared to find that it was outside reasonable debate that they were not the same specialty.

The end holding of the case is that the expert's specialty must constitute a real majority of his practice. If the issue were to cross my desk, I would look closely at what the law says about how to define specialty, whichever side I was on.