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STATE OF MICHIGAN COURT OF APPEALS

ALICIA FLEMING, Minor, by her Conservator, LORA MOORE Plaintiff-Appellant, v SUSAN RICE, Defendant, and BOTSFORD GENERAL HOPSITAL, VANCE D. POWELL, JR., D.O., JAMES D. SPENCER, D.O., and RICHARD HERMAN, D.O., Defendants-Appellees.

UNPUBLISHED June 2, 2009

No. 283816 Oakland Circuit Court LC Nos. 2006-072140-NH; 2005-069020-NH

Before: Bandstra, P.J., and Owens and Donofrio, JJ. PER CURIAM. Plaintiff appeals as of right the trial court's order granting defendants' motion for summary disposition, premised on the trial court's determination that the testimony of plaintiff's causation expert was inadmissible in this medical malpractice action, because that testimony was too speculative and was without sufficient scientific basis as to when plaintiff's alleged injury occurred relative to the timing of plaintiff's birth. We affirm. Plaintiff's mother went to Botsford General Hospital on September 24, 1990 at approximately 10:30 p.m., complaining of contractions and possible "leaking fluid"; she was kept for observation and monitoring. The next morning, a biophysical profile was conducted by ultrasound. It was scored at 6 out of 10, with no fetal breathing and no fetal tone evident. Plaintiff's mother was admitted to labor and delivery for monitoring and to "see if she [would go] into spontaneous active labor or if cervical changes occur." Nonstress tests were conducted in the morning and in the afternoon, and both were read as reassuring as to fetal condition. A repeat biophysical profile was scheduled for the following morning. Fetal monitoring strips and nurses' notes document instances of prolonged contractions followed by decelerations in fetal heart tones during the afternoon of September 25th. Throughout the night, the fetal heart monitor continued to show late decelerations, and plaintiff's mother complained of no fetal movement after 10:00 p.m. -1-

At 8:55 a.m. on September 26th, the repeat biophysical profile was performed; it was scored 4 out of 10, with no fetal breathing, no fetal tone and no fetal motion evident. At 12:15 p.m., plaintiff was delivered via cesarean section. Plaintiff suffered tremors during her neonatal admission, but otherwise appeared to be a typical newborn. She required no specialized treatment following her birth. However, at six months of age plaintiff was diagnosed with a seizure disorder; later, plaintiff was also diagnosed with cerebral palsy. Plaintiff alleges that defendants breached the standard of care by failing to deliver her upon initial consultation following the first biophysical profile and that this breach caused her neurological injury. Plaintiff's sole causation expert, Dr. Ronald Gabriel, testified at deposition that plaintiff suffered a neurological injury, resulting in her development of a seizure disorder and cerebral palsy, during the period from 12 to 24 hours preceding her birth. Defendants moved for summary disposition, challenging the scientific basis for Gabriel's timing of the alleged injury.1 The trial court excluded Gabriel's testimony, finding that it was too speculative and that it lacked sufficient scientific basis to be admissible. Plaintiff was thus left without an expert to testify to causation, and, consequently, the trial court granted defendants' motion for summary disposition. Plaintiff argues that the trial court abused its discretion by excluding Gabriel's testimony, and therefore, that summary disposition should not have been granted. We disagree. This Court reviews a trial court's decision on a motion for summary disposition de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998); Rice v Auto Club Ins Ass'n, 252 Mich App 25, 30; 651 NW2d 188 (2002). The trial court's decision to grant defendants' motion for summary disposition resulted from its decision to exclude Gabriel's testimony. This Court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion. Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). A trial court abuses its discretion when its decision falls outside the range of principled outcomes. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006); Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). To establish medical malpractice, a plaintiff must prove the following elements: (1) the applicable standard of care, (2) breach of that standard, (3) injury, and (4) proximate causation between the alleged breach and the injury. Weymers v Khera, 454 Mich 639, 655; 563 NW2d 647 (1997). To establish proximate cause, plaintiff must prove the existence of both cause in fact and legal cause. Id., citing Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). To prove cause in fact, plaintiff must present substantial evidence from which a jury

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This was defendants' second motion for summary disposition. The first, challenging plaintiff's ability to establish proximate cause because Gabriel's testimony indicated that the injury could have occurred before the defendants were called to attend to plaintiff's mother, was denied. Defendants assert that the trial court's decision on this motion was in error, and that this serves as an alternative ground for affirmance. Because we conclude that the trial court did not abuse its discretion by excluding Gabriel's testimony, we need not address the trial court's earlier decision.

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may conclude that more likely than not, but for defendants' conduct, plaintiff's injuries would not have occurred. Weymers, supra at 647-648; see also, Craig, supra at 86-87. It is not sufficient for plaintiff to show that defendants may have caused her injury. Instead, she must "set forth specific facts that would support a reasonable inference of a logical sequence of cause and effect." Craig, supra at 87; Skinner, supra at 174. And, while "`[t]he evidence need not negate all other possible causes,'" it "`must exclude other reasonable hypotheses with a fair amount of certainty.'" Id. at 166, quoting 75A Am Jur 2d, Negligence,

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