*1 v Oakwood HOSPITAL v OAKWOOD CRAIG 10, 121407-121409, Argued 121405, March 121419. Docket Nos. 5). (Calendar Rehearing post, July denied 2004. Decided No. 1201. Craig, brought friend, Kimberly a Craig, by next his Antonio against Wayne Oakwood malpractice Circuit Court action in the System, Henry Hospital, Associ- Hospital, Associated Health Ford Gennaoui, M.D., seeking PC., dam- Physicians, and Elias G. ated ailments, physical neurological which were ages and for his treating negligence his mother allegedly by in defendants’ caused deliveiy. jury during leading A returned verdict to his her labor J, court, Youngblood, plaintiff. F. determined The Carole for the Ford) System (Henry Henry was hable Health that defendant Ford Physicians, corporation defendant Associated as successor judgment PC., notwith- motions for and denied the defendants’ Appeals, standing for a trial. The Court the verdict and new (Cooper, PJ, concurring part JJ. Sawyer Owens, including Henry part, Ford’s dissenting part), affirmed liability, remitti- trial court’s denial of and reversed the successor earning capacity. App damages for lost tur of appealed. The defendants joined by Chief Justice Corri- opinion In an Justice Young, Supreme the and Justices Weaver,
gan, Markman, Taylor, held.'. Court Hospital’s denying defendant Oakwood trial corut erred in The admissibility hearing evidentiary on the for an motion expert propounded witnesses. one of the theories notwithstanding judgment the verdict entitled to defendants are the because, although from which adduced evidence appro- breached the jury the defendants had could conclude that care, jury in the record to priate had no basis standard palsy, mental cerebral this breach caused conclude that Henry retardation, neurological Ford was conditions. and other pur- liability theory it had because under a successor not hable Physicians, portion of Associated the administrative chased practice. PC., than its medical rather sought case, Hospital an eviden- In defendant Oakwood 1. this qualifications and theories of tiary hearing regarding the [July- plaintiffs expert permitted one witnesses. MRE 702 testimony only admission of the witness’s if the court recognized scientific,technical, determined that it was based on or specialized knowledge. challenged other When the defendant *2 plaintiffs theory expert’s generally accepted as novel and not community, erroneously within the medical the trial court con required testimony cluded that the court was to review the for admissibilityonly preliminary showing if the defendant made a that testimony However, proponent the expert inadmissible. the opinion testimony proving bears the burden of that the contested opinion generally accepted methodology.People is based on Young v (1986). (AfterRemand), 470, 475 Therefore, 425 Mich the trial court by denying abused its discretion evidentiary the motion for an hearing relating plaintiffs expert theory. to the witness’s 2. malpractice, To establish a cause of action for medical a (1) plaintiff appropriate must demonstrate the standard of care governing the purported defendant’s conduct at the time of the (2) negligence, care, that the defendant breached that standard of (3) (4) plaintiff injured, that plaintiffs the and that the injuries proximate were the result of the defendant’s breach of the applicable Weymers Khera, standard 639, of care. v 454 Mich (1997); prove proximate MCL causation, 600.2912a. In order to a plaintiff theory must adduce a valid of causation based on facts in theory may evidence. This possibility causation not rest on a or plausible explanation, but must exclude with a fair amount of certainty any hypotheses. plaintiff other reasonable The failed to present relationship evidence of a present causal between his neurological repeated, pound- conditions and the Pitocin-induced ing against of the anatomy fetal head the maternal described expert Therefore, his witness. there was no evidence from which jury plaintiffs present the could neurological infer that disabilities applicable were caused a breach of the standard of care. Given any the injuries absence of evidence that are attribut- conduct, able to defendant’s denying the trial court erred in the judgment defendants’ for a notwithstanding motions the verdict Appeals affirming the Court of erred in that denial. erroneously imposed 3. The liability trial court successor on Henry corporation purchases Ford. A successor predecessor that corporation’s predecessor’s assets for cash assumes the liabilities only where, among circumstances, other the transaction was a merger, consolidation or corporation or the transferee is a mere continuation corporation. or reincarnation of the old Foster v Co, Cone-Blanchard Only Machine Craig y Oakwood Physicians, potentially EC. is portion practice of Associated medical only Henry purchased cash for malpractice Ford action. liable in this Physicians, portion bifurcated Associated of the the administrative merge or and because did not consolidate these entities EC. Because practice of Associ- Henry a continuation of the Ford is not EC., Henry as a successor. Physicians, Ford is not hable ated agreement concurring, his with stated Justice Cavanagh, regarding successor majority except the rationale for some of respect to the issue of liability. with He concurred in result liability. successor dissenting part, concurring part stated Justice Kelly, Davis-Frye hearing abuse of was not an failure to hold a that the Hos- this case. Defendant Oakwood under the facts of discretion support obligation provide for its claim pital failed to meet its regarding of the causation that community. accepted injury the scientific was not within traumatic present evidence to establish did sufficient the conclusion Justice concurred with Kelly element of causation. majority Henry Hospital is not liable under that Ford liability. Therefore, theory would affirm the she of successor plaintiff, except with in favor of the decisions of both lower courts majority Henry Hospital agrees respect with the Ford part of the decisions should be reversed. *3 entry judgment defen- for in the Reversed and remanded dants’ favor. — — — Theory Acceptance Expert General Scientific Evidence Witness’s Davis-Frye Hearing. opposing party malpractice moved to in a medical case has Once an theory expert testimony party’s as novel and exclude the other and generally scientifically accepted, proponent not proving opinion that the contested bears the burden of methodology. generally accepted opinion is based on Silverman, M.D., J.D., PC. Mark L. Mark L. (by Silverman, M.D.), plaintiff. for the (by Barbara H. Erard PLLC Wright Dickinson DeRosier) J. Hospital. for Phillip Oakwood Henk), Henk, A. and Kitch & PC. Leonard Kallas (by Heady Susan & Valitutti (by Wagner Drutchas Denardis Zitterman) System. Henry for Ford Health op Opinion the Court Jacobs,
John P. (by Jacobs), PC. John P. for Elias G. Gennaoui, M.D., and Physicians, Associated EC. Amici Curiae:
Honigman Miller Schwartz and Cohn LLP (by Chris Conti) E. Rossman and Jason Schian for the Michigan Health and Hospital Association.
Plunkett & Cooney, (by PC. Mary Ross), Massaron for The Defense Research Institute.
Foster, Smith, Swift, Collins & (by P.C. Thomas R. Meagher), for the Michigan Defense Trial Counsel.
Stinnett Thiebaud & Remington (by L.L.P. Mark A. Stinnett and M. Philipa Remington) and Plunkett & Cooney, PC. (by Kamenec), Robert G. for the American College of Obstetricians and Gynecologists. Plaintiff, adult, J. an now suffers from cere-
Young, bral palsy, retardation, mental and a number of other neurological physical ailments. He argues, through his mother friend, as next that these conditions are the proximate results of defendants’ negligence in treating his mother during her leading labor delivery. his Specifically, plaintiff maintains that defendants admin- istered an excessive amount of a contraction-inducing medication to his mother and were unable to detect signs of fetal they distress because failed to make appropriate use of fetal monitoring devices. The trial court denied defendants’ request to hold a Davis-Frye hearing on expert testimony that purported to draw a causal connection between these breaches of the stan- dard of care present neurological and physiological condition.
Following trial, a five week jury returned a plaintiffs verdict favor. The trial court thereafter determined that defendant Ford Henry System Health Craig 71 v Oakwood to defendant corporation a successor was liable as The trial court denied Physicians, EC. Associated notwithstanding the judgment motions for defendants’ affirmed Appeals or for a new trial. Court verdict remittitur on liability, but ordered lost judgment reverse and remand wage earning capacity.1 We in defendants’ favor. entry judgment matter for HISTORY I. FACTS AND PROCEDURAL surrounding the events appeal This arises out of mother, Plaintiffs July birth on 1980. plaintiffs care defendant Kimberly Craig, prenatal received from Physicians em- Physicians, Associated EC. Associated Dr. obstetricians, including defendants ployed four Ajit Craig and Dr. Kittur.2 Ms. met with Elias Gennaoui birth, point each at some before obstetrician during attended to Dr. primarily but was Gennaoui plaintiffs delivery. amniotic and chorionic membranes Craig’s rup-
Ms. 16, 1980, at 5:30 A.M. on approximately July tured she was admitted to defendant Oakwood Hospital call within a half hour. The resident doctor on at the time noted that fetal heart tones were within Kittur, range. attending a normal who was the admitted, re- physician Craig on staff when Ms. an quested Craig given that Ms. be intravenous (IV) hydration line to maintain and to establish “keep open” a channel for the intravenous administration of medi- cation, should the need arise. Nurses an exter- applied at approximately nal fetal-uterine monitor to Ms. experienced 9:30 at which time she still had not A.M., 534; App NW2d jury party appeal Dr. Kittur not a to this because the determined is negligent. that he was not *5 Mich 471 67 Opinion of the Court 10:00, began
contractions. At Ms. Craig to receive 1000 Ringer’s through cc of 5% lactate solution the “keep open” IV line. Gennaoui,
Dr. who had taken over for Dr. Kittur admitted, Craig sometime after Ms. was met with Ms. Craig at 11:00 A.M. approximately He was concerned that Ms. and her child had Craig exposed been to infection since her membranes burst earlier that morning,3 concluded that Ms. should Craig given be ten units of Pitocin4 in order to induce 6From labor.5 11:30 A.M. Craig 6:00 Ms. was given doses of Pitocin in P.M., increasing amounts.
One of the central issues at trial precise was the amount of Pitocin administered to Craig Ms. whether, as plaintiff argued, she had re- mistakenly ceived a dosage. double Plaintiffs standard of care Gatewood, M.D., expert, Paul Craig’s testified that Ms. medical records reveal that inadvertently given she was two doses of Pitocin. The first was shortly administered after 11:00 A.M. Dr. upon Quin- Gennaoui’s order. Nurse lan wrote a check on Dr. Gennaoui’s order for Pitocin to indicate, according Gatewood, to Dr. that she had per- formed Dr. request Gennaoui’s and had administered Pitocin through Ringer’s 5% lactate solution. noted, however, Gatewood nurse, that another Tyra, Craig’s had written in Ms. records that she had administered Pitocin through a solution other fluid, discharged Dr. Gennaoui testified that amniotic which was burst, protected when amniotic and chorionic membranes fetus from infection. synthetic oxytocin. “Pitocin” is a brand name for 5 Plaintiff contends that records from a fetal uterine monitor show that was, fact, Craig experiencing Ms. contractions before Dr. Gennaoui’s decision to administer Pitocin. 6 Dr. Gatewood described this solution as a mix of dextrose water. Ceaig v Oakwood already lactate Ringer’s than the 5% Ms. Thus, to Dr. receiving intravenously. according Gate- single order testimony, given Dr. Gennaoui had wood’s for Pitocin that had been filled twice —once Nurse solution, and Quinlan through Ringer’s the 5% lactate Tyra through the D5W solution. once Nurse Craig’s at trial whether Ms. labor Also contested any compiled Medical records presented complications. Craig began expe- show that Ms. after birth strength of “moderate” after re- riencing contractions and that “moderate” con- ceiving Pitocin contractions *6 plaintiffs delivery. tinued until contends, however, that from a Plaintiff the records story. fetal uterine monitor tell a different These records, according Gatewood, to Dr. that plaintiff show rate, recurrent of heart or experienced decelerations his after Pitocin. bradycardia, Craig began Ms. to receive Dr. at explained Gatewood trial that the decelerations occurred because the Pitocin administered to Ms. Craig caused contractions of excessive and duration. intensity compressed Plaintiffs umbilical cord became because of contractions, thereby these decreasing the amount of flowing plaintiff. blood to the pattern result was by decelerations heart rate shown the fetal uterine monitor and a oxygen decrease the amount of flowing plaintiffs brain, to or “hypoxia” parlance. Plaintiff was shortly day. born before 7:00 that P.M. (on scores, Apgar scale), His 8 and 9 a one to ten were typical range,7 well within the that indicating plaintiff normal, appeared healthy baby. to be Plaintiff also assessment, contests this Apgar maintaining that a Apgar represents An score an evaluation of a newborn infant’s physical immediately condition after birth. An is evaluated at one infant effort, rate, respiratory and five minutes after birth on five criteria: heart tone, color, response muscle skin and to stimuli. Each criterion is Mich 67
Opinion Court an shortly depicts taken after his birth picture plaintiff head recently Specifi- infant who had suffered trauma. ridge” to a across his fore- cally, plaintiff points “large molding,” argues of “facial or brow head as evidence edema,8 clearly bruising that the reveals photograph addition, In con- signs plaintiff both sure of trauma. “gazing” shows him postdelivery picture tends that the to the left hand in a cortical right holding while his indicative of acute position and that these “are brain injury.” days birth,
Two after his was examined plaintiff Carolyn Johnson, Dr. who concluded that pediatrician healthy normal plaintiff displayed seemed be cognitive vastly functions. Plaintiff received a different 6, diagnosis approximately year one later. On June examined Ms. had Michael Nigro, neurologist, noticing after pediatric plain- tiff after began developmentally seem slow his third Nigro diagnosed plaintiff month. Dr. with nonprogres- global sive with encephalopathy9 developmental delay spasticity. and mild He concluded at the time and maintained trial throughout etiology this or of plaintiffs cause condition was unclear.10 two, assigned indicating a value zero and with a score of ten between Attorney’s Dictionary Illustrated, 1, p best condition. of Medicine vol A-475. *7 8 An “edema” is an “effusion of serious fluid into the interstices of cells spaces body in tissue or into cavities.” Random House Un Webster’s (2d 2001). abridged Dictionary ed, 9 “Encephalopathy” general any is a term for disease of the brain. (2d 2001). Unabridged Dictionary ed, Random House Webster’s 10 Nigro later, 30, gave slightly diagnosis Dr. a on different October 1981, chronic, opined plaintiff nonspecific encephal when he that had opathy psychomotor delay, palsy, epi with retardation or cerebral teens, lepsy. plaintiff early Nigro diagnosed When was in his him with profound encephalopathy, spastic quadriplegia, retardation, mental aphasia. “Aphasia” previously ability speak a is “the loss of held to or v Oakwood present Plaintiff initiated the lawsuit in 1994 mother, through Kimberly Craig, his as next friend. He alleged that Drs. Gennaoui and Kittur committed medi- cal malpractice failing plaintiffs to monitor heart- beat with an internal uterine catheter until 2:30 on P.M. July Further, 1980. he that Dr. alleged Gennaoui and his colleagues negligently administered Pitocin to Ms. the fact Craig despite presented physical that she symptoms indicating unnecessary Pitocin was potentially result, harmful. plaintiff alleged, As plain- tiff damage sustained brain either or through hypoxia through pounding against of head his rim” “pelvic mother’s before birth.
Plaintiff named Physicians, PC., also Associated employer Gennaoui, Drs. Kittur and theory under a In liability. addition, vicarious plaintiff named Oakwood Hospital, delivered, where and named Henry Ford under Hospital liability theory. a successor 21, 1997,
On January defendant asked the Court exclude the testimony Gabriel, of Dr. Ronald proposed expert, or, alternative, causation in the conduct a.Davis-Frye hearing.12 This motion was denied.
Henry Ford filed a successful motion to sever. How- ever, the trial court found after conducting bench trial Henry Ford was liable to plaintiff as a successor to Physicians, Associated PC. jury
After the
found in plaintiffs
favor, the court
judgment
million,
entered
reflecting the present
$21
spoken
language,
injury
understand
or written
due to
of the brain.”
(2d
2001).
Unabridged Dictionary
ed,
Random House Webster’s
11 Henry
purchased
portion
Ford had
the administrative
of Associated
Physicians
Center, Inc.,
corporation
Medical
a business
created from the
professional corporation
employed
that had
defendants Dr. Gennaoui and
alleged malpractice.
relationships
Dr. Kittur at the time of the
corporate
greater
between
entities are discussed in
detail below.
People Davis,
348;
(1955); Frye
See
v
II. STANDARD OF REVIEW a trial decision to admit or exclude We review court’s A necessarily evidence for an abuse of discretion.15 court when it “admits evidence that is abuses its discretion However, any inadmissible as a matter of law.”16 error the admission or exclusion of evidence will not warrant action appellate ap- relief “unless refusal to take this justice,”17 or pears .. . inconsistent with substantial “a right [opposing] party.”18 affects substantial 13 App 249 Mich 544. 14 (2003) (citations omitted). 15 Katt, People 272, 278; v 662 NW2d 16 Id. 2.613(A). MCR 103(a). MRE v Oakwood grant de novo a trial court’s decision to or
We review notwithstanding a motion for the ver- deny judgment “ novo, conducting dict.19In review de ‘review this we light the evidence and all inferences in the legitimate ”20Only *9 most favorable to the when nonmoving party.’ “the light evidence viewed this fails to establish a moving party claim as a matter of law” is the entitled to judgment notwithstanding the verdict (JNOV).21 “ liability The doctrine of successor is ‘derived from ”22 equitable principles.’ application Its is therefore subject to de review novo.23
III. IMPROPER ADMISSION OF EXPERT TESTIMONY turn, first, We to the trial court’s erroneous conclusion that defendant Oakwood Hospital was not entitled to Davis-Frye hearing before the admission of Dr. Ronald Gabriel’s expert testimony. Defendant contends that the trial court erred denied when it its motion to exclude the expert opinion or, testimony of Dr. Gabriel in the alter- native, to hold a Davis-Frye hearing. agree. We
A. MRE 702 AND DAVIS-FRYE ANALYSIS
Expert testimony
pursuant
702,
is admitted
to MRE
provided,
which
at the pertinent
times:
recognized
scientific,
If the court determines
tech-
nical,
specialized
knowledge
or other
will assist
the trier of
19
Shield,
Sniecinski v Blue
&Cross Blue
124, 131;
469 Mich
666 NW2d
(2003).
186
20 Id., quoting
Lee,
388, 391;
v
Wilkinson
463 Mich
fact to understand skill, by knowledge, issue, qualified expert a witness as an education, may testify experience, training, or thereto opinion .... the form of an or otherwise “ evidence, apply rule of must ‘the construing In this we appli- the construction and govern legal principles ”24 an language When the cation of statutes.’ eviden- plain meaning we tiary unambiguous, apply rule is “ judicial further construction or of the text ‘without ”25 interpretation.’ of MRE 702 three plain language establishes expert to the admission of testi- preconditions broad First, mony.26 proposed expert witness must be testimony.27 to render the Gener- “qualified” proposed ally, may qualified by be virtue of “knowl- edge, skill, training, or education.”28 In a experience, one, action such as this the court’s malpractice expert’s “qualifications” assessment of an are now 600.2169(2): guided by MCL *10 determining qualifications expert In of an the witness malpractice, shall, alleging an action the court at a minimum, following: evaluate all of the
(a) professional training The educational and of the expert witness.
(b)
specialization
expert
The area of
of the
witness.
(c)
length
expert
The
of time the
witness has been
engaged
practice
in the
clinical
instruction of the
active
or
profession
specialty.
health
or the
24
Ass’n,
Edgewood
549, 554;
CAM Constr v Lake
Condo
640
Underwood,
(2002),
v
quoting
Grievance Administrator
NW2d 256
462
193;
Mich
28Id. v Oakwood
(d) relevancy testimony. The witness’s Second, proposed testimony the must “assist the trier of fact to understand the or to evidence determine ,”29 words, a fact in issue . .. In other expert opinion the testimony give “must serve to the trier of fact a better understanding of the evidence or in determining assist a fact in issue.”30
Finally, under MRE 702 as it read when matter this tried, expert testimony must have been based on a “scientific, “recognized” technical, form of or other specialized knowledge.”31 Appeals properly The Court of language Nelson v American Sterilizer construed this (On Remand): Co “recognized” general acknowledge
The word connotes a existence, validity, authority, genuineness ment of the or fact, adjective concept. claim or “scientific” connotes grounding principles, procedures, in the and methods of Finally, “knowledge” science. the word connotes more than subjective unsupported speculation. belief or The word applies any body any body of known facts or to of ideas accepted good inferred from such facts or as truths on grounds.[32]
29 MRE 702. J.). Beckley, supra (opinion at 711 Brickley, January 1, 2004, MRE 702. This rule was amended effective and now provides: scientific, technical, spe- If the court determines that or other knowledge cialized will assist the trier of fact understand issue, qualified evidence or to determine a fact in a witness as an skill, expert hy knowledge, experience, training, may or education (1)
testify
opinion
thereto in the
of an
form
or otherwise if
(2)
testimony
data,
is based on sufficient facts or
is
(3)
product
methods,
principles
of reliable
the witness
applied
principles
reliably
has
and methods
to the facts of the
case.
*11
32
(1997) (citations
485, 491;
App
223 Mich
80 Opinion Court lines, sig “technical” the word Continuing along these a knowledge, field of or specialized in a grounding nifies science, Similarly, “special like.”33 “art, or the particular study in field of or specific a foundation suggests ized” expertise.34 tried, of expert the admission this case was
When require to the threshold testimony subject only not was 702, to the articulated of MRE but also standard ments Davis,35now Michigan in as v known People generally Davis, In held that expert we Davis-Frye test.36 techniques on novel scientific is admis opinion based generally is underlying methodology if the sible Thus, community.37 the scientific accepted within determining proposed expert opinion whether scientific, technical, “recognized” in a field of grounded MRE specialized knowledge required by or other as was 702, obligated expert trial court to ensure that the accurate and generally accepted was based on opinion testimony methodologies.38 proponent under general acceptance of proving bears burden this standard.39 THE TRIAL FAILURE TO PERFORM ITS
B.
COURT’S
ROLE UNDER MRE 702
GATEKEEPING
case,
In this
defendant Oakwood
moved
Hospital
limine to exclude the
of Dr. Ronald Gabriel
33
2001).
(2d ed,
Unabridged Dictionary
Random House Webster’s
34 Id.
35
(1955).
348;
343 Mich
In response to this attorney pro- duced several articles and authorities that were meant to demonstrate a link between the use of Pitocin and type of injury by plaintiff. sustained But while some of these articles described a correlation between the use of Pitocin and generalized injury, brain none of these authorities supported theory of causation actually put forth Dr. is, Gabriel. That none supported a causal connection between Pitocin and brain injury incurred through repeated pounding of the fetal head against maternal anatomy.
However, the court did not rely on prof- authorities by plaintiff fered in denying defendant’s motion for a Davis-Frye hearing. Instead of consulting plaintiffs proffered scientific and literature, the court erroneously assigned the burden of proof under Davis- Frye to party defendant —the opposing the admission of Dr. Gabriel’s held that defendant was —and not entitled to a hearing because it failed to prove theory Gabriel’s lacked “general acceptance.”40
40 Indeed, explicit regard: the trial court was in this [Allocating proof proponent the burden of to the of novel testimony] everybody
scientific would mean that can come in here Mich 67 Opinion Court are described above principles the MRE 702 When court that the trial abused it is evident properly applied, for a defendant’s motion denying its discretion predi- of discretion was hearing. This abuse Davis-Frye errors. legal fundamental cated on two that it First, concluding court erred in had the trial plaintiffs proposed expert tes- obligation no review introduced evidence that the timony unless defendant MRE testimony was “novel.” Under all obligation had an review independent trial court testimony in order to ensure that expert opinion *13 testimony Beckley precondi- satisfied the three opinion by “qualified noted it was rendered a tions above—that trier testimony that the would “assist the expert,” in fact,” and, during under the rules of evidence effect trial, testimony the was rooted in opinion this that or technical “recognized” principles. scientific These expert obligations applied irrespective type testimony by the opinion parties.41 party offered While to call may any by failing waive claim of error this attention, to the court’s gatekeeping obligation court must evaluate under MRE 702 expert once that issue is raised. allege everybody’s expert saying and that whatever is is not data, Davis-Frye supported I scientific and would have to hold a every any testify.
hearing single expert in case where had to And that’s not the standard. You have to submit some evidence to me just Davis-Frye hearing, you saying that I need a other than it. post compare The same error. 100-103. But dissent makes the See Remand), Young (allocating proof (After supra at 475 the burden of under evidence). Davis-Frye proponent scientific to the of novel position advocated the trial court and the dissent is not Davis-Frye jurisprudence, it also defies at odds with our but logic. require party opposing The trial court’s rule would opinion expert testimony prove negative expert’s is —that generally accepted. thoroughly an not This is unreasonable impractical proof. allocation of the burden of 41 SeeMRE 702. v Oakwood
Second, the trial court erred in that there concluding justification no for a At Davis-Frye hearing. was issue that opinion Gabriel’s Pitocin administered to Craig produced Ms. contractions of excessive duration force, these contractions caused head repeatedly ground against Craig’s pelvic to be Ms. anatomy, and that head trauma resulting caused plaintiffs cerebral palsy. sequence, This causal defen- argued, dant has “never been described literature” and was at the testimony odds with other witnesses.
Plaintiff failed to single authority introduce a truly supported Dr. theory response Gabriel’s Instead, defendant’s motion. repeatedly stressed that medical literature amply supported the proposition that Pitocin could damage cause brain —a proposition defendant did supplied not contest —and the court with literature to that effect. But this litera- ture had little to do with Dr. theory Gabriel’s causal therefore did not counter the proposition that his expert opinion was based on novel science.
Therefore, a Davis-Frye more hearing jus- than tified in light of the information before the trial court when it ruled on defendant’s motion limine. The proponent opinion of expert testimony bears the burden of proving that opinion contested is based on *14 generally accepted methodology.42Because there was no evidence to indicate that Dr. Gabriel’s theory was novel, anything but the trial court was to required Davis-Frye conduct the inquiry requested by defendant. Had the trial court conducted the assessment re- quired by MRE it well might have determined that theory Dr. Gabriel’s “recognized” was not as required Indeed, our rules of evidence. the evidence supra at 475. Remand), (After Young of Dr. should have support offered in Gabriel that his notice to the trial court sufficient provided in the medical com- theory general acceptance lacked to cite a thing, one Dr. Gabriel was unable munity. For injury theory study his traumatic single supporting at trial. The authori- during a voir dire conducted that excessive proposition ties he offered for through may palsy amounts of Pitocin cause cerebral the traumatic mechanism he described at trial were cited in Pitocin caused palsy studies he which cerebral in in amounts. These given animals when excessive “bumping grinding” did not involve the studies testimony mechanism on which Dr. Gabriel’s fact, distinguished relied. In Dr. expressly Gabriel injuries he attributed mechanism which from those at work the animal studies. It would then, little evidence appear, there was that Dr. much theory “recognized,” generally Gabriel’s less neurology. accepted, pediatric within Second, had the court conducted the MRE 702 in- defendant, quiry requested by might it have discovered theory evidentiary that Dr. lacked support. Gabriel’s identify specific part Gabriel was unable Ms. which, Craig’s anatomy according theory, with to his Indeed, repeatedly during head collided labor. pointedly identify Dr. Gabriel refused to anatomical this chart, contending structure on a that such This failure to root causal beyond expertise. his his theory anything depiction but his own hypothetical anatomy of female indicates that Dr. testi- Gabriel’s mony may speculative have been too under MRE 702 to the trier of fact. assist hearing should have
Finally, Davis-Fryef.MRE At no part alerted the court to the error described IV. did Dr. the traumatic and point opine Gabriel *15 Craig v Oakwood Opinion of the Court vascular mechanisms he described could cause cerebral palsy, might produce or that those mechanisms the asymmetrical development shown MRI. testimony supported plaintiffs Thus, Dr. Gabriel’s malpractice jury permit- if claim the supporting assume, evidence, ted to without that a connection causal existed between these elements. As part permissible shown Consequently, this is not a inference. IV, again the court had to conclude reason testimony “assist[ed] that Dr. Gabriel’s could not have given yawning gap the trier of fact” Dr. between testimony plaintiff hoped Gabriel’s and the conclusions jury would draw from it. Although clearly declining the trial court erred in testimony admission, review Dr. Gabriel’s before its we need not determine whether reversal on this basis alone justice” is warranted under the “substantial standard of our court below, rules.43For the reasons stated remand SiDavis-Fryehearing unnecessary given plaintiffs for is
failure to establish causation element of his medical malpractice claim.
IV JUDGMENT NOTWITHSTANDING THE VERDICT plaintiff upon if Even were able to show remand that properly admitted, Gabriel’s defen- dants would nevertheless be entitled to JNOV. proofs by plaintiff record reveals that the submitted do support jury not the verdict rendered because of plaintiffs failure to establish that defendants’ breach of applicable proximately standard of care caused his palsy. cerebral entry We therefore reverse and remand for judgment notwithstanding the verdict. 2.613(A). MCR Mich 67
A. STATUTORY AND COMMON LAW BACKGROUND of action for medical In order to establish a cause must establish four elements: malpractice, *16 (1) care the appropriate governing the standard of of the purported neg- defendant’s conduct at the time (2) that the defendant that standard ligence, breached (3) (4) care, injured, that the plaintiff of plaintiffs injuries proximate the were the result of the defendant’s breach of the standard of care.44 applicable These common-law elements have been codified in MCL 600.2912a, requires plaintiff alleging which a to show that malpractice defendant, specialist, provide recog- if
[t]he a failed to the practice specialty nized standard or care within that as reasonably light applied in of the facilities available in the community reasonably or other facilities available under circumstances, proximate and as a result of defendant failing provide standard, plaintiff an suffered injury.
Furthermore, in a medical plaintiff malpractice case proximate must establish the causation prong his prima by preponderance facie case of the evidence.45 legal
“Proximate cause” is a term of art that incor (or porates both cause in fact and legal “proximate”) cause.46 defined We these elements Skinner v Square D :Co generally requires showing
The cause
fact element
actions,
plaintiffs injury
that “but for” the defendant’s
44
(1997).
Khera,
Weymers
639, 655;
v
Opinion op the Court hand, legal On the other cause or would not have occurred. normally examining “proximate involves the fore cause” seeability consequences, and whether a defendant conseq legally responsible for should be held such uences.[47] find that the defen- logic,
As a matter of court must a cause in fact of the negligence dant’s negli- it can hold that the defendant’s injuries before or gence proximate legal inju- was the cause of those ries.48 an
Generally, an act or omission is a cause fact of injury only injury if the could not occurred without have (or for”) that a plaintiff “but act or omission.49 While need not an prove that act or omission was the sole for catalyst injuries, his he must introduce evidence permitting the to conclude that the act or jury omission was a cause.50 important
It is
in mind that a plaintiff
bear
cannot
*17
satisfy
by showing only
this burden
that the defendant
have caused
may
injuries.
requires
his
Our case law
more than a mere
or a
possibility
plausible explana-
Rather,
plaintiff
a
the defen-
establishes
tion.51
dant’s conduct
a
in
if
injuries only
cause
fact of his
specific
support
“set[s]
he
forth
facts that would
a
logical sequence
reasonable inference
of cause and
theory
causation, therefore,
effect.”52 A valid
must be
“
based on facts in evidence.53 And while
‘[t]he evidence
”
causes,’
negate
need not
all other
Court
possible
this
47
(citations omitted).
163
Id. at
48Id.
(4th
Prosser,
ed, 1971), p
Id. See also
Torts
239.
145,
Whiting Corp,
151;
Jordan v
52Id. at 174.
53Id. at 166. Opinion the Court “ the evidence ‘exclude consistently required
has with a fair amount of hypotheses other reasonable certainty.’ ”54 Skinner, example, plaintiff
In for we held that negligence failed to show that the defendant’s caused product the decedent’s electrocution. Skinner was a in liability action which the claimed that an decedent was killed because electrical switch manu- had factured defendant malfunctioned.55 decedent had machine that tumbling built parts, was used to wash metal- and had used the turn defendant’s switch to the machine on and off.56 from Wires the defendant’s switch were attached to the tumbling alligator machine with Immediately clips.57 death, before his decedent was found with alligator clips electricity both his hands while through coursed his body.58 In order to find that a flaw the defendant’s product electrocution, jury was a cause fact of that would conclude, in effect, have had to that the decedent had disconnected the and that alligator clips the machine had again, despite somehow been activated dis- being power connected from its Not this source.59 scenario implausible, but there was no evidence to rule possibility out the that the decedent had been electro- mistakenly cuted he had because touched wires he knew to be live. There was no evidence to support the 166, quoting approval 2d, Id. Negligence, § at Am with 57A Jur p 422. 55 Skinner, supra at 157.
56 Id.
57 Id.
58 Id.
59 Id. 89 v Oakwood Consequently, theory we con- plaintiffs causation.60 granted properly sum- trial court had that the cluded mary disposition the defendant. provides factual a useful v DEC Mulholland Int’l,61 plaintiffs’ counterpoint Mulholland, the In to Skinner. milking mastitis, a bacterial contracted cows herd began plaintiffs a to use udder, after the ofthe infection milking Key expert system the built defendants.62 Sidney expert testimony provided Beale, an dairy agriculture Mr. Beale had observed science. plaintiffs’ milking the deduced that farm and at the configuration improper to the was related mastitis plaintiffs suggested milking that the He the system.63 changes, implement and, indeed, once these certain put practice, noticed “a decrease into were production in the in milk and an increase in mastitis herd.”64 testimony, held, the basis of this on
We granted improperly a directed verdict trial court testimony Because Mr. Beale’s defendant.65 milking machin- on his direct observation of based ery, plaintiffs’ herd, and teat inflamma- on the its use following milking, jury herd tion in the reasonably concluded, of this on the basis could have milking machinery testimony, masti- caused every did not rule out Mr. Beale’s While tis.66 merely potential re- mastitis, this fact cause of other 60Id. 395; Mich NW2d 62Id. at 399.
63Id. at 400.
64Id.
65Id. at 398.
66Id. at 413.
Opinion op the Court lated to the credibility of his testimony; opinion his nevertheless admissible and sufficient to support finding of causation.67
B. PLAINTIFF’S FAILURE TO ESTABLISH CAUSATION The statutory and background common-law provided above it makes clear that a plaintiffs prima facie case of medical malpractice must draw a causal connection between the defendant’s breach of the applicable stan- dard of care and the plaintiffs injuries. case, In this evidence adduced at trial cannot support the jury’s verdict because plaintiff has failed to make the neces- sary causal links. Even if plaintiff had shown that defendants breached care, the standard of the jury had no basis in the record to connect this breach to the palsy, cerebral mental retardation, injuries and other now presented by plaintiff. trial,
At plaintiff attempted to connect defendants’ purported violations of the applicable standard of care to injuries through the expert testimony of Drs. Paul Gatewood and Ronald Gabriel. Dr. Gatewood testified principally as a standard of care witness, interpreting the medical of plaintiff records and Ms. Craig, and opining that defendants breached the appli- cable standard of by care administering excessive amounts of by Pitocin and failing to an use internal pressure uterine catheter. Dr. Gatewood also testified that records from fetal and uterine monitors indicated Craig Ms. experienced excessive and severe con- tractions, and that these reduced the oxygenated flow of blood plaintiff both compressing the umbilical cord reducing periods oxygenation be- tween contractions. Dr. Gatewood that, testified aas
67id. Oakwood v ' Opinion Court and correlated hypoxia from result, suffered plaintiff rate. in his heart decelerations defen- testimony connected Dr. Gatewood’s While to physi- of care of the standard alleged dants’ breach birth, before his by plaintiff symptoms displayed ological condi- prebirth these declined to connect he specifically sought for which injuries the particular tions to had the denied he Indeed, Dr. Gatewood compensation. and ex- linkage to make causal expertise requisite relationship between testify to a causal pressly refused care. He prenatal and his neurological diseases *20 baby’s to happened that “what insisted instead neurologist.”68 of a purview was “[within] brain” defen- that the link between Plaintiff contended was to be plaintiffs injuries and negligence dants’ testimony of Dr. Ronald by supplied instead injuries were opined plaintiffs Dr. Gabriel. Gabriel plaintiffs that affected to two mechanisms attributable mechanisms delivery; he referred to these brain before According to Dr. Gabri- and “vascular.” as “traumatic” injuries “traumatic” sustained testimony, plaintiff el’s by induced Pitocin uterine contractions when excessive grinded [sic] or “pounded head to be plaintiffs caused Be- her labor. during rim” pelvic [his mother’s] into paying fact; analysis suffers for the dissent’s This is a critical regarding expertise of heed Dr. disclaimer insufficient Gatewood’s etiology palsy. post See at 107. of cerebral testimony Indeed, two to conflate the the dissent seems grind- “bumping experts by concluding principal that Dr. Gabriel’s supported theory Dr. Gatewood’s ing” was somehow of causation reality, there testimony dangers doses of Pitocin. In about the of excessive experts. proffered gap these between the theories was a fundamental plaintiffs head doses of Pitocin caused Dr. testified that excessive Gabriel grinding, anatomy pelvic that this ground against his mother’s to be dosage testify turn, hypoxia. that an excessive Dr. Gabriel did not led to injuries is, compression sustained without head of Pitocin alone —that plain- anatomy- have caused repeated contact with maternal from —could palsy. cerebral tiffs cause of this pounding, plaintiffs brain sustained com- pression injuries, which resulted in elevated venous “pressures” impeded blood Dr. “arter[ial] flow.” analogized Gabriel this “venous component” to the distribution of water through a lawn sprinkler system, explaining that pressure increased in certain areas of the brain reduced the oxygenated flow of blood to outlying, regions “watershed” just the brain as “the sprinkler last gets who the pressure [sic] is the least able provide water for that area of the lawn.” The crux of Dr. Gabriel’s theory, then, was that plaintiff suffered traumatic head injury during labor and was detrimentally affected by that trauma and the accom- panying vascular effects.
Even if accept we Dr. full, Gabriel’s testimony in fatal flaw remains in plaintiffs prima facie case: Dr. Gabriel never testified injuries that the stemming from this pounding and its accompanying vascular effects could cause palsy, cerebral retardation, mental any or the other conditions now presented by plaintiff. began Gabriel his by explaining that an MRI image showed brain tissue had developed asymmetrically. failed, however, He to trace asymmetric this development either back to the trau- matic and vascular mechanisms he described or forward to the specific neurological conditions presently dis- *21 played by plaintiff. Thus, exactly how the mechanisms (as he described led to palsy cerebral opposed to any other neurological impairment) and they how were connected to the asymmetric brain development de- picted in plaintiffs MRI was never explained.69 69 Compare Bank, Mid-Michigan 1st States, America v United 752 F (ED 1990) Supp 764, Mich, (finding 765 negligence that the of Air Force physicians proximately palsy plaintiff caused a child’s cerebral where the presented and the defendant etiology extensive on the palsy); 1988) McGee, (Ala, cerebral (holding v 534 So 2d 1076 Bradford plaintiffs presented that the jury evidence sufficient for the to determine Oakwood v 93 that correlation and in logic in science
It is axiomatic error to that it is counsels adage This not causation.70 is B that A and B from that A causes the mere fact infer testimony on the absence together. Given occur could have Gabriel, jury the by Dr. supplied causation logical in this indulged if it plaintiff for found plaintiff effect, that evidence concluding, error — with evi- injury, combined a head may have sustained the leads to palsy, cerebral now has plaintiff dence that head plaintiffs that caused that the conduct conclusion palsy. his cerebral injury also caused on jurisprudence our prohibited is indulgence Such to show plaintiff long required have causation. We actions, the plaintiffs the defendant’s “that ‘but for’ connection Where the not have occurred.”71 injury would and conduct negligent the defendant’s between plaintiff entirely speculative, is injuries negligence.72 facie case of prima cannot establish cere- between Here, any causal connection had to by Dr. Gabriel the events described palsy bral Therefore, the trial jury. ex nihilo supplied be defendants’ denying of law in erred as a matter court motion for JNOV. Court of judgment reverse We with this proceedings remand for consistent Appeals opinion. LIABILITY
V SUCCESSOR failed has have established Although we must we malpractice, a valid claim of to state negligence proximately their son’s cerebral caused that the defendant’s 1980). (D ND, Lewis, Supp palsy); v 506 F Dick 2199; 7; O’Hagan, 138 L 691 n 117 S Ct States v 521 US United (1997) dissenting part). (Thomas, J., concurring part Ed 2d 724 added). Skinner, supra (emphasis at 163 id. at 174. See *22 also correct an legal erroneous conclusion in pub- opinion lished of the Court of Appeals.
The panel Henry held that Ford Health Care Corpo- Ford)73 (Henry ration a corporate liable as succes- sor to Physicians, Associated EC. To the contrary, we conclude that the trial court erroneously imposed suc- cessor liability on Henry Ford.
At the time of the alleged malpractice in 1980, defendant Drs. Kittur and Gennaoui were employees of Associated Physicians, EC., which was a profes- sional corporation organized under the Professional Corporation Service Act.74 years Six after plaintiffs birth, Associated Physicians, EC., began to consider the possibility Henry Ford might take over its administrative bookkeeping services. While Henry Ford was interested in pursuing this arrangement with Associated Physicians, the lat- corporate ter’s form an posed obstacle. professional As a corporation, Physicians, Associated EC., could neither legally merge with nor sell its shares to Henry Ford, given that Henry Ford’s shareholders were physi- not cians.75 73 Henry Corporation Ford Health Henry Care became Ford Heath System clarity, in 1989. For the sake of “Henry we refer to both as Ford.” seq. MCL 450.221 et 75 See, generally, Corporation Act, Professional Services MCL 450.221 seq. professional
et corporation may “shares” of a not be except sold or transferred eligible to an individual who is to be a corporation personal shareholder of the representative or to the or legally estate incompetent of a deceased or shareholder or to a split trust,
trust or interest in which the trustee and the current beneficiary persons income professional are both licensed in a corporation. [MCL 450.230.] may An individual professional not become a shareholder in a services corporation person.” unless he or she is a “licensed MCL 450.224. A Craig y Oakwood Opinion op the Court into EC., Physicians, split Associated Consequently, incorpo- portion entities. administrative two Its Inc., a Center, Physicians Medical rated Associated could nonphysicians in which corporation business *23 prac- Its medical ownership and control. legally share APMC, EC., a new tice, however, professional became corporation. all the shares of Associated
Henry Ford purchased Center, Inc., in accordance the with Physicians Medical thereby be- Henry Act.76 Ford Corporation Business Physicians the of Associated parent corporation came the Center, Inc. As the intended before parties Medical APMC, Asso- sale, EC., agreement entered into an with Inc., the Physicians Center, Medical in which ciated ad- billing, keeping, record and other latter controlled the ar- practice. of This aspects ministrative APMC, EC., in dissolved rangement ended when the the initiation of lawsuit. present before that, it the Henry argued Ford because assumed portion of the of Associ- ownership only administrative (which Physicians, vicariously ated EC. liable justify impo- the plaintiff), equitable concerns liability of in this case. present sition successor are not The trial of Ford’s Henry court severed issue trial, a the trial liability. successor After one-hour bench Henry held Ford liable a successor court as Physicians, EC. The Court of corporation to Associated courts the factors Appeals agreed. part Both relied on duly legally person” or individual licensed otherwise “licensed is “an who is court, board, practice department, professional authorized to service a commission, jurisdiction, any agency an of this another or state or persons.” corporation all are licensed MCL of whose shareholders 450.222(a). 76 seq. MCL 450.1101 et supporting
listed Turner v Bituminous Cas Co77as imposition liability.78 of successor recently liability
We described the of successor scope in Foster v There, Cone-Blanchard Machine Co.79 we liability observed the “traditional rule” that successor requires an examination of “the nature of the transac- tion predecessor between corporations.”80 successor In a merger exchanged in which stock is as consider- ation, the corporation successor all “generally assumes predecessor’s its liabilities.”81 pur- When successor cash, however, chases assets for the successor corpora- tion assumes its predecessor’s liabilities (1) express implied assumption where there is an or (2)
liability;
where
transaction amounts to a consolida
; [82](3)
merger
tion or
where the transaction was fraudu
(4)
lent;
purchase
good
where some
the elements
406, 430;
81Id. (“It Turner, supra Michigan See at 419-420 is the law that if two corporations obligations merge, obligations of each become the of the resulting corporation.”). Oakwood v Opinion the Court without was lacking, or where the transfer faith were not of the transferor were and the creditors consideration (5) corporation for; the transferee provided or where corpora old of the or reincarnation mere continuation tion.[83] that the sale of Associated alleged not
Plaintiff has fraudulent, Center, Inc., bad Physicians Medical Likewise, has faith, lacking or consideration. Ford or Henry expressly no evidence adduced Physi- the liabilities of Associated assumed impliedly Center, Inc. therefore must inquiry Our cians Medical (1) a consolida- the transaction was focus on whether (2) (either facto), de or de and jure merger tion or a “mere continuation”84 Henry Ford is whether Physicians. Associated First, plain- accounts. claim fails on both
Plaintiffs took jure merger place, that a de allege tiff does not merger a de facto oc- not demonstrated that he has of the each merger A de facto exists when curred. is met: following requirements (1) enterprise of the seller There is a continuation continuity management, corporation, so that there is a location, assets, general personnel, physical business operations.
(2) continuity of which results There is a shareholders acquired purchasing corporation paying for the from the stock, ultimately stock of its own this assets with shares corpo- of the seller coming to be held the shareholders they part of the become a constituent ration so that purchasing corporation.
(3) ordinary business corporation ceases its The seller legally liquidates, as soon as operations, and dissolves possible. practically
(4) liabilities purchasing corporation assumes those *25 (citations omitted). Id. at 702 84 Id. obligations ordinarily necessary of the seller for the uninterrupted continuation of of the seller corporation. [85] normal business operations This transaction is merger not a de facto simply because Henry Ford, purchasing corporation, paid in cash rather Thus, than stock. there is no “continuity of shareholders which results from the purchasing corpo ration paying for the acquired assets with shares of its own stock . . . .”86
We also conclude that Henry Ford is not a “mere continuation” of Physicians Associated Center, Medical Inc. As the history recited shows, above Associated Physicians split into two entities immediately before Henry purchase Ford’s of Associated Physicians Medi- Center, cal Inc. professional corporation— Associated Physicians’ medical practice —became APMC, PC. Henry Ford was therefore purchase able to only the administrative aspects of the profes- former sional corporation. The core functions of the entity that originally became vicariously liable to plaintiff were carried on exclusively by APMC, PC., a professional corporation, rather than the business corporation pur- chased Henry Ford. Having analyzed the “nature of the transaction,”87 we can only conclude that the only company even arguably liable as a successor to Associ- ated Physicians, PC., is that which continued its medi- cal practice namely, APMC, PC. —
Moreover, we have never applied successor liability the medical malpractice context. Plaintiff has adduced 85 Turner, supra (citations, quotation marks, at 420 emphasis deleted), quoting Co, Langston Shannon v Supp 797, Samuel 379 F (WD 1974). Mich, 86Id.
87Foster, supra at 702. *26 v Oakwood only are in this case. Not should do so why we no reason but, here more not met requirements the Turner/Foster justify imposition that policies important, here. We noticeably inapplicable are liability successor in Foster that stated provide a to the decision in Turner was thrust of
[t]he injured plaintiff in those cases in which remedy to an de “legally practically becomes corporation first and/or underlying for the Turner Court’s . .. The rationale funct.” corporate principles disregard law to traditional decision recovery injured plaintiffs.[88] for provide to a source of judg- and Here, already sought obtained plaintiff has Kittur, from Associated ment from Drs. Gennaoui Because EC., Hospital. and from Oakwood Physicians, sources, against other judgment obtained a on liability impose there was no need to successor had Ford, if the factors Henry even Turner/Foster erred in imposing The trial court justified liability. such Ford and the Court of liability Henry on successor ruling. affirmed this erroneously Appeals
VI. CONCLUSION trial court erred when it refused conclude that the We notwithstand- judgment defendants’ motion for grant present any Plaintiff failed to evidence ing the verdict. reasonably conclude the fact-finder could from which standard of care any applicable breach of the mental palsy, caused his cerebral proximately defendants conditions. In addi- retardation, neurological and other denied defendant Oak- tion, improperly trial court hearing evidentiary an Hospital’s compel motion wood propounded theories regarding qualifications the trial Finally, plaintiffs expert witnesses. one 88 Foster,supra at 705-706. 471 Mich Concurring Opinion by Cavanagh, J.
court erred in concluding Henry Ford Health Care Corporation was a corporate successor to the profes- sional corporation that employed Dr. Gennaoui. reasons, For those we judgment reverse the of the Court of Appeals and remand the entry matter for judgment in defendants’ favor.
Corrigan, C.J., and Weaver, Taylor, Markman, JJ., J. YOUNG, concurred with J. I {concurring). concur with the majority
Cavanagh, *27 in this I case. write separately, however, because I do not
agree with some of the rationale regarding successor liability by articulated the majority in part Therefore, V. pertains as it to successor I liability, concur in the result only. J. {concurring part and dissenting part).
Kelly, I dissent from the majority’s decision that the trial court abused its discretion in denying Davis-Frye1 hearing. I disagree also that there was insufficient evidence of agree causation. I with the conclusion that Henry Ford Hospital is not liable under the theory of successor liability. Therefore, with respect to the defen- other dants than Henry Ford Hospital, I would affirm the rulings of both lower for plaintiff. courts
THE DAVIS-FRYE HEARING
Defendant Oakwood Hospital
present
failed to
any
substantiation for its motion asserting that
the testi-
mony
causation expert, Gabriel,
Ronald
was inadmissible because it was not recognized in the
2.119(A)(1)(b)
scientific community. Rule
of the Michi-
1 People Davis,
348;
v
(1955),
Frye
[t]he offered Dr. Ronald for it that were and the causes and, by groundless in the extreme deposition are Gabriel admission, support or even mention in without his own medical literature. modern pages statement, attached several
To this defendant reviewing testimony. deposition After of Dr. Gabriel’s admission them, I that Dr. relevant find Gabriel’s compres- regarding fetal head recent studies is that few rarely. it occurs it occurs The reason sion exist because rarely fetal heart monitors and other is that technology help it associated with detect the conditions compression head is averted. so that necessarily indicate of recent studies does not A lack theory or has that a scientific has been abandoned theory may disrepute. It indicate that the has fallen into although generally accepted. instance, For become showing shape there are no recent scientific studies statement, round,” would earth, ofthe “The earth is community. accepted in the be scientific response motion, cited In its to defendant’s *28 quoted Physician’s a Desk Reference and textbook the describing a Defendant the effects of labor on fetus. specific nothing response. Had it set forth offered authority support grounds motion, a Davis- to the appropriate. hearing Frye have been would majority’s articulated relaxed standard Under the party today, a a claims that in the future whenever appears theory “groundless extreme,” it that in the is hearing. Davis-Frye party This to a will be entitled effectively to from the trial court the discretion removes by Opinion Kelly, J. hearing needed,
decide whether a is it making auto- matic. Criminal defendants questioning proffered testi- mony regarding psychological effect their actions had on a child victim could receive a Davis-Frye hearing on the bald assertion that the testimony unacceptable is in the scientific community.
Defendant’s written motion was vague. Attached to it was some of Dr. deposition testimony Gabriel’s in which he compression stated that a injury occurred and that it resulted from the administration of excessive Pitocin. The court heard oral argument on the motion. In focusing on the expert testimony that it believed was inadmissible, defendant referred Gabriel’s testi- mony that had experienced a traumatic head injury during childbirth. It hearing asked for a at which it might present an expert testify that there is no scientific support for this theory. Defendant did not have an expert provide nor did it an signed affidavit expert an indicating that Dr. theory Gabriel’s is not recognized in the scientific community.
In denying motion, judge noted: problem your with you [defendant’s] motion is any any don’t have Affidavits. You don’t have evidence in — mean, there that I Frye there should be a Davis Hearing. mean, just you I attorney it’s an saying as [granting that... hearing any support without for defen argument] dant’s everybody would mean that can come in allege here everybody’s expert saying whatever is supported data, is not scientific and I would have to hold Frye Hearing every single any Davis case where testify. had to And that’s not the standard. You have to submit some evidence Frye to me that I need a Davis it.[2] Hearing, you just saying other than judge case, As did the in this others have noted the difference between persuasion, proponent evidence, burden of which is on the production. judicial economy initial burden of “Because of and the *29 103 v Oakwood by Opinion Kelly, J. motion willingness to revisit the judge The indicated for its contention: provide support defendant should additional. I will take a anything can submit “[Y]ou Defendant never my ruling today.” at it. But that’s look the renewed motion. grant of considerable Michigan
The
Rules
Evidence
ruling
on motions. With
judge
deference to a trial
104(a) provides
MRE
regard
preliminary questions,
to
person
the
of a
to
questions regarding
qualification
admissibility
the
of evidence “shall be
be a witness and
making
the court....
In
its determina-
by
determined
tion,
by
except
it
not bound
the Rules of Evidence
is
Contrary to the ma-
respect
privileges.”
those with
to
rule,
and in accordance with this
the
jority’s assertions
702,
by
governs
trial court
not
MRE
which
bound
witnesses,
it ruled on
expert
the
of
when
defendant’s motion.
pertaining
experts,
rules
to
it seems reasonable to
‘liberal thrust’ of the
production
opponent
purposes
place
[a]
for
of
the initial burden of
on the
(1995).
512, 522;
hearing.” Gentry Magnum, 195 W Va
Alberts v WickesLumber LEXIS They problem. have noted Commentators have also addressed the allocating production opponent to the of the the initial burden objective hampering gatekeeping [] “furthers the without evidence Accordingly, opponent’s [rules evidence].” ‘liberal thrust’ of the merely go showing that the burden is forward with evidence showing by expert proof is inadmissible. “Plaintiff bears the burden of preponderance expert’s opinion of the that the is admissible.” evidence test, Berger, paradigms applying L Procedural the Daubert 78 Minn for (1994). 1345, See, also, Brown, Rev 1365-1366 Procedural issues under (1999). Daubert, L 1140-1141 While these decisions 36 Hous Rev test, inquiry deal the newer Daubert about who articles with production the burden of is not affected. See Daubert vMerrell Dow bears Pharmaceuticals, 2786; Inc, 579; L 509 US 113S Ct 125 Ed 2d 469 change adoption Daubert test relates occasioned the proponent prove admissibility once the determi- what the must show to hearing nation is made that a is warranted. Mich Opinion J. Kelly, that, It is without once a defendant shows question genuine theory’s that a issue with to a regard exists acceptance, theory’s proponent prove must its ac- *30 ceptance community. that, in the medical But before raising the party present issue must more than a conclusory that an allegation issue exists. failed to make necessary showing
Defendant provided this case. It never for counsel’s support propo- sition that Dr. traumatic injury theory Gabriel’s lacked recognition in the community. given scientific Even opportunity provide court, to to the support defendant was either unwilling Hence, or unable to do so. the trial court did not its abuse discretion when it to refused Davis-Frye hold a hearing.
THE EVIDENCE OF CAUSATION Defendants assert that plaintiff present failed to sufficient evidence damages that his by were caused defendants’ medical malpractice to allow the case to go to the jury. In presenting its evidence of a facie prima case, a plaintiff must show causation but need not use any particular formulation of words. case,
In this
plaintiffs expert did
say
not
“Antonio
Craig’s cerebral palsy
was caused
hypoxia resulting
from defendants’ breaches of the standard of care.”
Although desirable,
precision
such
is
not man-
simply
dated.
“[T]he
evidence is sufficient
if it
logical
‘establishes a
sequence
effect,
of cause and
notwithstanding the
plausible
existence of other
theo-
Co,
ries ....’”
Skinner v
D
Square
445 Mich
159-160;
(1994),
quoting
NW2d 475
Mulholland v
395, 415;
DEC Int’l
Corp,
Dr. Donn testified cause hypoxia. Dr. Gatewood testified that Pitocin can cause injury. compression, compression head can cause testified that Pitocin can cause trauma and Dombrowski hypoxia. Dr. that Antonio suffered a brain Gabriel testified *31 injury during delivery, labor and based on the character of delivery, monitoring, and on the fetal based the labor based head, positioning findings, on the of the based on the MRI it was caused the use of Pitocin. He testified that there ridge. compression pelvic of the head in the There was pressure elevation of the and loss of and venous blood flow fusing oxygen the brain. the loss and also that an dose Testimony presented excessive palsy major- of Pitocin causes cerebral in animals. The ity experiments notes that animal are the author- ity plaintiff showing that offered a correlation between The palsy. excessive amounts of Pitocin and cerebral that animal are insufficient evi- implication is studies to upon testimony. dence which base That is incorrect. authority jury
Dr. was sufficient for Gabriel’s reasonably to infer that the same effects occur the animal humans. Dr. Gabriel also testified Opinion by Kelly, J. the American types “upon studies were the which their warnings Medical Establishment formulated on oxytoxic drugs.” warnings appear the use of These discussing medical reference materials effects of not refute Pitocin. Defendants did these statements. Dr. that he Gabriel testified believed excessive Pitocin caused condition. He testified that the drug ways. produced affected in two It both a trial, vascular effect and a traumatic effect. At “pounding grinding” Gabriel used the terms the traumatic explain component injury. He testi- fied: part, happened
In I what to Antonio think is more complicated component because I think there is a traumatic component. as well as a vascular Those studies showed the component, say vascular that is to the reduced blood flow. being Antonio suffered also from the trauma of the head pounded grinded pelvic or [sic] into the rim with successive high pressure uterine contractions which were of a which resulted marked decelerations. So I think it’s a combination of vascular and trauma.
Dr. Gabriel testified that what happened Antonio not happened would have without the adminis- tration of Pitocin. majority
The focused attention on Dr. Gabriel’s if “pounding grinding” theory as it were the only theory that It plaintiff presented. was not. Dr. Gabriel testified that there were different two contributors to injuries. He claimed that plaintiff suffered from both a decreased blood flow and from a traumatic compression injury.3 majority testify maintains that “Dr. Gabriel did not that an *32 dosage plaintiffs excessive of Pitocin alone ... could have caused cere palsy.” (emphasis original). Yet, majority
bral Ante 91 n at 68 begins by noting “[e]ven its causation discussion that if were v Oakwood Opinion Kelly, J. Gabriel, In addition to Dr. Dr. Paul Gatewood testi plaintiff regarding fied for the standard of care. He stated that an excessive of Pitocin dosage given mother. In expert opinion, his this was a deviation from the standard of care. Dr. Gatewood also explained that the administration of excessive Pitocin was the proximate injuries. cause of Antonio’s
After Dr. duty, Gatewood established breach of Gabriel testified that Pitocin excessive causes fetal damage brain and cerebral palsy animals. In Dr. opinion, Gabriel’s Pitocin excessive caused the fetal brain damage that led to In palsy.5 Antonio’s cerebral all, there was sufficient evidence to establish the ele- ment jury of causation. The was entitled to decide the case on the presented. evidence
CONCLUSION The failure to hold a Davis-Frye hearing was not an abuse of discretion under the facts this case. Defen- upon testimony properly able to show remand that Dr. Gabriel’s admitted, defendants would nevertheless entitled be Ante at 85. JNOV.” Thus, purposes discussion, majority for of its causation assumes both case, proper theories were admissible. Were this not the outcome Davis-Frye hearing, appellate ruling should a remand be for a not an jnov. the defendants were entitled to of Dr. Gabriel (“the indicates that excessivePitocin causes reduced blood flow vascular component”). compo- The studies link showed a between this vascular palsy. causation, nent and cerebral There was sufficient evidence regardless majority’s reading of the record. When counsel asked whether these deviations “were the proximate oxygen, fet[us] causes of the reduced reduced blood flow to the “[Tjhese Craig,” here Antonio the doctor answered deviations are a result hypoxic episodes develop in the ... all of these factors contributed to the prolongation hypoxia baby’s ment and of the interim brain this suffered.” palsy When asked whether Antonio’s cerebral was related to the administering Pitocin, the doctor testified that this “without Pitocin happened.” would not have *33 Opinion Kelly, J. support for obligation provide dant had an Oakwood injury theory was claim that Dr. traumatic Gabriel’s community. the scientific accepted not within evidence to Moreover, sufficient plaintiff presented Both Dr. the element of causation. Gabriel establish effectively testified that an excessive Gatewood to the conditions that caused dosage gave of Pitocin rise baby’s injuries. Therefore, I would affirm the decision of the Court Hospital that Ford is Appeals except Henry on all issues In theory liability. under a of successor liable majority’s I with the conclusion that the regard, agree was incorrect. Appeals exception, Court of With affirmed. Appeals decision of the Court should be