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Michigan Supreme Court Lansing, Michigan

Opinion
ANTONIO CRAIG, by his next friend, KIMBERLY CRAIG, Plaintiff-Appellee, v

Chief Justice

Justices

Maura D. Corrigan

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

FILED JULY 23, 2004


OAKWOOD HOSPITAL, HENRY FORD HOSPITAL, doing business as HENRY FORD HEALTH SYSTEM, ASSOCIATED PHYSICIANS, P.C., and ELIAS G. GENNAOUI, M.D., Defendants-Appellants, and AJIT KITTUR, M.D., Defendant. ________________________________ YOUNG, J.

Nos. 121405 121407-09 121419

Plaintiff, now an adult, suffers from cerebral palsy, mental retardation, and a number of other neurological and physical ailments. He argues, through his mother as next

friend, that these conditions are the proximate results of defendants' negligence in treating his mother during her labor leading to his delivery. Specifically, plaintiff

1


maintains that defendants administered an excessive amount of a contraction-inducing medication to his mother and were unable to detect signs of fetal distress because they

failed to make appropriate use of fetal monitoring devices. The trial court denied defendants' request to hold a DavisFrye hearing on expert testimony that purported to draw a causal connection between these breaches of the standard of care and plaintiff's present neurological and physiological condition. Following a five week trial, the jury returned a

verdict in plaintiff=s favor. determined that defendant

The trial court thereafter Ford Health System was

Henry

liable as a successor corporation to defendant Associated Physicians, P.C. The trial court denied the defendants=

motions for judgment notwithstanding the verdict or for a new trial. liability, capacity.1 The Court of Appeals affirmed the judgment of but ordered remittitur on lost wage earning

We reverse and remand the matter for entry of

judgment in defendants= favor. I. This appeal FACTS AND PROCEDURAL HISTORY arises out of the events surrounding

plaintiff's birth on July 16, 1980.

Plaintiff's mother,

1

249 Mich App 534; 643 NW2d 580 (2002). 2


Kimberly

Craig,

received

prenatal

care

from

defendant

Associated Physicians, P.C.

Associated Physicians employed

four obstetricians, including defendants Dr. Elias Gennaoui and Dr. Ajit Kittur.2 Ms. Craig met with each obstetrician

at some point before plaintiff's birth, but was primarily attended to by Dr. Gennaoui during plaintiff's delivery. Ms. Craig's amniotic and chorionic membranes ruptured at approximately 5:30
A.M.

on July 16, 1980, and she was

admitted to defendant Oakwood Hospital within a half hour. The resident doctor on call at the time noted that

plaintiff's fetal heart tones were within a normal range. Dr. Kittur, who was the attending physician on staff when Ms. Craig was admitted, requested that Ms. Craig be given an intravenous (IV) "keep open" line to maintain hydration and to establish of an a channel for the the intravenous need arise. to Ms.

administration Nurses applied

medication, external

should

fetal-uterine
A.M.,

monitor

Craig at approximately 9:30 had not experienced

at which time she still At 10:00, Ms. Craig

contractions.

began to receive 1000 cc of a 5% Ringer's lactate solution through the "keep open" Dr. Gennaoui, who
IV

line. had taken over for Dr. Kittur

Dr. Kittur is not a party to this appeal because the jury determined that he was not negligent. 3


2

sometime after Ms. Craig was admitted, met with Ms. Craig at approximately 11:00 and her child had
A.M.

He was concerned that Ms. Craig exposed to infection since her

been

membranes burst earlier that morning,3 and concluded that Ms. Craig should be given ten units of Pitocin4 in order to induce labor.5 From 11:30
A.M.

to 6:00

P.M.,

Ms. Craig was

given doses of Pitocin in increasing amounts. One of the central issues at trial was the precise amount of Pitocin administered to Ms. Craig and whether, as plaintiff dosage. argued, she had mistakenly of received care a double Paul

Plaintiff's

standard

expert,

Gatewood, M.D., testified that Ms. Craig's medical records reveal Pitocin. that she was inadvertently given two doses of

The first was administered shortly after 11:00 Nurse Quinlan wrote a for Pitocin had to indicate, Dr.

a.m. upon Dr. Gennaoui's order. check on Dr. to Gennaoui's Dr. order

according

Gatewood,

that

she

performed

Gennaoui's request and had administered Pitocin through the

Dr. Gennaoui testified that amniotic fluid, which was discharged when plaintiff's amniotic and chorionic membranes burst, protected the fetus from infection.
4 5

3

"Pitocin" is a brand name for synthetic oxytocin.

Plaintiff contends that records from a fetal uterine monitor show that Ms. Craig was, in fact, experiencing contractions before Dr. Gennaoui's decision to administer Pitocin. 4


5% Ringer's lactate solution. Dr. Gatewood noted, however, that another nurse, Tyra, had written in Ms. Craig's records that she had

administered Pitocin through D5W,6 a solution other than the 5% Ringer's lactate Ms. Craig was to a already Dr. single receiving Gatewood's order for

intravenously. testimony, Dr.

Thus, Gennaoui

according had given

Pitocin that had been filled twice--once by Nurse Quinlan through the 5% Ringer's lactate solution, and once by Nurse Tyra through the D5W solution. Also contested at trial was whether Ms. Craig's labor presented after any complications. birth show of that Medical that records Ms. compiled began after

plaintiff's

Craig

experiencing receiving

contractions Pitocin and

"moderate"

strength

"moderate"

contractions

continued until plaintiff's delivery. Plaintiff contends, however, that the records from a fetal uterine monitor to tell Dr. a different show story. that These plaintiff

records,

according

Gatewood,

experienced recurrent decelerations of his heart rate, or bradycardia, after Ms. Craig began to receive Pitocin. Dr.

Gatewood explained at trial that the decelerations occurred

Dr. Gatewood described this solution as a mix of dextrose and water. 5


6

because

the

Pitocin of

administered

to

Ms.

Craig and

caused

contractions Plaintiff's

excessive cord

intensity became

duration. because of

umbilical

compressed

these contractions, thereby decreasing the amount of blood flowing to plaintiff. in heart The rate result shown was by the pattern of

decelerations

the

fetal

uterine

monitor and a decrease in the amount of oxygen flowing to plaintiff's brain, or "hypoxia" in medical parlance. Plaintiff was born shortly before 7:00
P .M .

that day.

His Apgar scores, 8 and 9 (on a one to ten scale), were well within the typical range,7 indicating that plaintiff appeared to be a normal, healthy baby. Plaintiff also

contests this Apgar assessment, maintaining that a picture of plaintiff who taken had shortly after his birth depicts an

infant

recently

suffered

head

trauma.

Specifically, plaintiff points to a "large ridge" across his forehead as evidence of "facial or brow molding," and argues that the photograph clearly reveals bruising and

An Apgar score represents an evaluation of a newborn infant=s physical condition immediately after birth. An infant is evaluated at one and five minutes after birth on five criteria: heart rate, respiratory effort, muscle tone, skin color, and response to stimuli. Each criterion is assigned a value between zero and two, with a score of ten indicating the best condition. Attorney=s Dictionary of Medicine Illustrated, vol 1, p A-475. 6


7

edema,8 both sure signs of trauma.

In addition, plaintiff

contends that the postdelivery picture shows him "gazing" to the right while holding his left hand in a cortical position injury." Two days after his birth, plaintiff was examined by pediatrician plaintiff Dr. Carolyn to be Johnson, healthy who and concluded displayed that normal and that these "are indicative of acute brain

seemed

cognitive functions.

Plaintiff received a vastly different On June 6, 1981,

diagnosis approximately one year later.

Ms. Craig had plaintiff examined by Dr. Michael Nigro, a pediatric neurologist, after noticing that plaintiff began to seem developmentally slow after his third month. Nigro diagnosed with He this plaintiff global with Dr.

nonprogressive delay and or and mild

encephalopathy9 spasticity. throughout

developmental at the time

concluded trial that

maintained cause of

the

etiology

plaintiff's condition was unclear.10

An "edema" is an "effusion of serious fluid into the interstices of cells in tissue spaces or into body cavities." Random House Webster's Unabridged Dictionary (2d ed, 2001). "Encephalopathy" is a general term for any disease of the brain. Random House Webster's Unabridged Dictionary (2d ed, 2001).
10 9

8

Dr. Nigro gave a slightly different diagnosis later, 7


Plaintiff

initiated

the

present

lawsuit

in

1994 He

through his mother, Kimberly Craig, as next friend. alleged that Drs. in Gennaoui to and Kittur committed

medical

malpractice

failing

monitor

plaintiff's

heartbeat on July

with an internal uterine catheter until 2:30 16, 1980.

P .M .

Further, he alleged that Dr. Gennaoui and his

colleagues negligently administered Pitocin to Ms. Craig despite the fact that she was presented physical and symptoms

indicating harmful.

that As

Pitocin a

unnecessary

potentially plaintiff

result,

plaintiff

alleged,

sustained brain damage either through hypoxia or through the pounding of plaintiff's head against his mother's

"pelvic rim" before birth. Plaintiff also named Associated Physicians, P.C., the employer of Drs. Kittur and Gennaoui, under a theory of vicarious liability. In addition, plaintiff named Oakwood

Hospital, where plaintiff was delivered, and named Henry

on October 30, 1981, when he opined that plaintiff had chronic, nonspecific encephalopathy with retardation or psychomotor delay, cerebral palsy, and epilepsy. When plaintiff was in his early teens, Dr. Nigro diagnosed him with profound encephalopathy, spastic quadriplegia, mental retardation, and aphasia. "Aphasia" is "the loss of a previously held ability to speak or understand spoken or Random written language, due to injury of the brain." House Webster's Unabridged Dictionary (2d ed, 2001). 8


Ford Hospital under a successor liability theory.11 On January 21, 1997, defendant asked the Court to

exclude the testimony of Dr. Ronald Gabriel, plaintiff's proposed causation expert, or, in the alternative, to

conduct a Davis-Frye hearing.12 Henry Ford filed a

This motion was denied. motion to sever.

successful

However, the trial court found after conducting a bench trial that Henry Ford was liable to plaintiff as a

successor to Associated Physicians, P.C. After the jury found in plaintiff's favor, the court entered judgment of $21 million, reflecting the present

value of the $36 million awarded by the jury. court denied defendants' motion for

The trial judgment

notwithstanding the verdict or a new trial. On February 1, 2002, the Court of Appeals affirmed the jury verdict in plaintiff's favor, but ordered remittitur because of the jury's overestimation of plaintiff's lost

Henry Ford had purchased the administrative portion of Associated Physicians Medical Center, Inc., a business corporation created from the professional corporation that had employed defendants Dr. Gennaoui and Dr. Kittur at the time of the alleged malpractice. The relationships between the corporate entities are discussed in greater detail below. See People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 App DC 46; 293 F 1013 (1923). 9

12

11

wage earning capacity.13

The panel also affirmed the trial

court's conclusion that Henry Ford was liable to plaintiff as a successor corporation. We granted defendants' applications for leave to

appeal on September 12, 2003, limiting the parties to the following issues: "(1) Whether the witnesses' testimony was based on facts not in evidence and whether the trial court erred in permitting the testimony of plaintiff's expert

witnesses; (2) Whether the trial court erred in finding defendant Henry Ford Hospital liable on a successor

liability theory."14

We denied plaintiff's application for

leave to appeal the decision of the Court of Appeals. II. STANDARD OF REVIEW

We review a trial court's decision to admit or exclude evidence for an abuse of discretion.15 abuses its discretion when it A court necessarily evidence that is

"admits

inadmissible as a matter of law."16

However, any error in

the admission or exclusion of evidence will not warrant appellate relief "unless refusal to take this action

13 14 15

249 Mich App 534, 544.
469 Mich 880 (2003) (citations omitted).
People Id. 10
v Katt, 468 Mich 272, 278; 662 NW2d 12


(2003).
16

appears . . . inconsistent with substantial justice,"17 or affects "a substantial right of the [opposing] party."18 We review de novo a trial court's decision to grant or deny a motion for judgment notwithstanding the verdict.19 In conducting this review de novo, we "'review the evidence and all legitimate inferences in the light most favorable to the nonmoving party.'"20 Only when "the evidence viewed

in this light fails to establish a claim as a matter of law" is the moving party entitled to judgment

notwithstanding the verdict (JNOV).21 The doctrine of successor liability is "'derived from equitable principles.'"22 Its application is therefore

subject to review de novo.23

17 18 19

MCR 2.613(A).
MRE 103(a).


Sniecinski v Blue Cross & Blue Shield, 469 Mich 124,
131; 666 NW2d 186 (2003). Id., quoting Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000).
21 22 20

Id.

Stevens v McLouth Steel Products Corp, 433 Mich 365, 376; 446 NW2d 95 (1989), quoting Musikiwamba v ESSI, Inc, 760 F2d 740, 750 (CA 7, 1985).
23

Stachnik v Winkel, 394 Mich 375, 383; 230 NW2d 529

(1975). 11


III. IMPROPER ADMISSION OF EXPERT TESTIMONY We turn, first, to the trial court's erroneous

conclusion that defendant Oakwood Hospital was not entitled to a Davis-Frye hearing before the admission of Dr. Ronald Gabriel's expert testimony. Defendant contends that the

trial court erred when it denied its motion to exclude the expert opinion testimony of Dr. Gabriel or, in the

alternative, to hold a Davis-Frye hearing. A. MRE 702 AND DAVIS-FRYE ANALYSIS Expert testimony is admitted

We agree.

pursuant

to

MRE

702,

which provided, at the pertinent times: If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise . . . . In construing this rule of evidence, we must apply "'the legal principles of that govern the the construction language of and an

application

statutes.'"24

When

evidentiary rule is unambiguous, we apply the plain meaning of the text "'without further judicial construction or

CAM Constr v Lake Edgewood Condo Ass'n, 465 Mich 549, 554; 640 NW2d 256 (2002), quoting Grievance Administrator v Underwood, 462 Mich 188, 193; 612 NW2d 116 (2000). 12


24

interpretation.'"25 The plain language of MRE 702 establishes three broad preconditions to the admission of expert testimony.26 First, the proposed expert witness must be "qualified" to render the proposed by testimony.27 virtue of Generally, "knowledge, the expert may be

qualified

skill,

experience,

training, or education."28

In a medical malpractice action

such as this one, the court's assessment of an expert's "qualifications" are now guided by MCL 600.2169(2): In determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following: (a) The educational and training of the expert witness. professional

(b) The area of specialization of the expert witness. (c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty. (d) The relevancy of the expert witness's testimony. Second, the proposed testimony must "assist the trier
25 26

Id.

People v Beckley, 434 Mich 691, 710-711; 456 NW2d 391 (1990) (opinion of BRICKLEY, J.).
27 28

MRE 702. Id. 13


of fact to understand the evidence or to determine a fact in issue . . . ."29 In other words, the expert opinion

testimony "must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue."30 Finally, under MRE 702 as it read when this matter was tried, expert testimony of must have been based or on a

"recognized"

form

"scientific,

technical,

other

specialized knowledge."31

The Court of Appeals properly

construed this language in Nelson v American Sterilizer Co (On Remand): The word "recognized" connotes a general acknowledgement of the existence, validity, authority, or genuineness of a fact, claim or concept. The adjective "scientific" connotes a grounding in the principles, procedures, and
29 30 31

MRE 702. Beckley, supra at 711 (opinion of BRICKLEY, J.).

MRE 702. This rule was amended effective January 1, 2004, and now provides: If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 14


methods of science. Finally, the word "knowledge" connotes more than subjective belief or unsupported speculation. The word applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.[32] Continuing along these lines, the word "technical"

signifies grounding in a specialized field of knowledge, or a particular "art, science, or the like."33 Similarly,

"specialized" suggests a foundation in a specific field of study or expertise.34 When testimony this was of in case was tried, not the only also now admission to to the the of expert

subject MRE People

threshold standard known in

requirements articulated

702, v

but

Davis,35

generally

Michigan as the Davis-Frye test.36 expert opinion based on novel

In Davis, we held that techniques is

scientific

admissible only if the underlying methodology is generally

223 Mich App 485, 491; 566 (citations and quotation marks omitted).
33

32

NW2d

671

(1997)

Random House Webster's Unabridged Dictionary (2d ed, Id. 343 Mich 348; 72 NW2d 269 (1955). See Frye v United States, 54 App DC 46; 293 F 1013

2001).
34 35 36

(1923). 15


accepted

within

the

scientific the

community.37 expert

Thus, opinion

in was

determining

whether

proposed

grounded in a "recognized" field of scientific, technical, or other specialized knowledge as was required by MRE 702, a trial court was was obligated on to ensure and that the expert

opinion

based

accurate

generally

accepted

methodologies.38 the burden of

The proponent of expert testimony bears proving general acceptance under this

standard.39 B. THE  RIAL COURT'S FAILURE TO T GATEKEEPING ROLE UNDER MRE 702 In this case, defendant Oakwood PERFORM ITS

Hospital

moved

in

limine to exclude the testimony of Dr. Ronald Gabriel on the basis that Dr. Gabriel's theory of how plaintiff

sustained brain damage was not generally accepted within the medical community, as required by Davis-Frye. Dr.

Gabriel's etiological theory, as summarized by defendant in arguing its motion, was that "hyperstimulat[ion]" of the uterus caused the head of the fetus (plaintiff) to pound
37 38

Davis, supra at 370.

Id. at 372. See also People v Young, 418 Mich 1, 24; 340 NW2d 805 (1983) ("The Davis-Frye standard is the means by which the court can determine that the novel evidence offered for admission here enjoys such recognition."). People v Young (After Remand), 425 Mich 470, 475; 391 NW2d 270 (1986). 16

39

against

his

mother's

pelvic

anatomy, This

thereby

producing to

permanent

brain

damage.

theory,

according

defendant, was novel enough to be excluded and, at best, was admissible only once it passed through the crucible of Davis-Frye analysis. In response to this motion, plaintiff's attorney

produced several articles and authorities that were meant to demonstrate a link between the use of Pitocin and the type of injury sustained by plaintiff. But while some of

these articles described a correlation between the use of Pitocin and generalized brain injury, none of these

authorities supported the theory of causation actually put forth by Dr. Gabriel. connection through between That is, none supported a causal and of brain the injury head incurred against

Pitocin pounding

repeated

fetal

maternal anatomy. However, the court did not rely on authorities

proffered by plaintiff in denying defendant's motion for a Davis-Frye proffered hearing. scientific Instead and of consulting literature, plaintiff's the court

medical

erroneously assigned the burden of proof under Davis-Frye to defendant--the party opposing held the admission defendant of was Dr. not

Gabriel's

testimony--and

that

entitled to a hearing because it failed to prove that Dr.

17


Gabriel's theory lacked "general acceptance."40 When the MRE 702 principles described above are

properly applied, it is evident that the trial court abused its discretion in denying defendant's motion for a DavisFrye hearing. This abuse of discretion was predicated on

two fundamental legal errors. First, the trial court erred in concluding that it had no obligation unless to review plaintiff's introduced proposed evidence expert the

testimony

defendant

that

expert testimony was "novel."

Under MRE 702, the trial

court had an independent obligation to review all expert
40

Indeed, the trial court was explicit in this regard:

[Allocating the burden of proof to the proponent of novel scientific testimony] would mean that everybody can come in here and allege that whatever everybody's expert is saying is not supported by scientific data, and I would have to hold a Davis-Frye hearing in every single case where any expert had to testify. And that's not the standard. You have to submit some evidence to me that I need a Davis-Frye hearing, other than you just saying it. The dissent makes the same error. See post at 2-4. But compare Young (After Remand), supra at 475 (allocating the burden of proof under Davis-Frye to the proponent of novel scientific evidence). The position advocated by the trial court and the dissent is not only at odds with our Davis-Frye jurisprudence, but it also defies logic. The trial court's rule would require the party opposing expert testimony to prove a negative--that the expert's opinion is not generally accepted. This is an unreasonable and thoroughly impractical allocation of the burden of proof. 18


opinion

testimony

in

order

to

ensure

that

the

opinion

testimony satisfied the three Beckley preconditions noted above--that it was rendered by a "qualified expert," that the testimony would "assist the trier of fact," and, under the rules of evidence in effect during this trial, that the opinion testimony was rooted in "recognized" scientific or technical irrespective principles. of the type These of obligations expert opinion applied testimony

offered by the parties.41

While a party may waive any claim

of error by failing to call this gatekeeping obligation to the court's attention, the court must evaluate expert

testimony under MRE 702 once that issue is raised. Second, the trial court erred in concluding that there was no justification for a Davis-Frye hearing. At issue

was Dr. Gabriel's opinion that Pitocin administered to Ms. Craig produced contractions of excessive duration and

force, that these contractions caused plaintiff's head to be repeatedly ground against Ms. Craig's pelvic anatomy, and that the resulting head trauma caused plaintiff's

cerebral palsy.

This causal sequence, defendant argued,

has "never been described in medical literature" and was at odds with the testimony of plaintiff's other expert

41

See MRE 702. 19


witnesses. Plaintiff failed to introduce a single authority that truly supported Dr. Gabriel's theory in response to

defendant's motion. that that medical Pitocin did

Instead, plaintiff repeatedly stressed amply supported the proposition proposition court with

literature could not

cause

brain

damage--a the

defendant

contest--and

supplied

literature to that effect.

But this literature had little

to do with Dr. Gabriel's causal theory and therefore did not counter the proposition that his expert opinion was based on novel science. Therefore, justified in a Davis-Frye of the hearing was before more the than trial The

light

information

court when it ruled on defendant's motion in limine.

proponent of expert opinion testimony bears the burden of proving that the contested opinion is based on generally accepted methodology.42 Because there was no evidence to

indicate that Dr. Gabriel's theory was anything but novel, the trial court was required to conduct the Davis-Frye

inquiry requested by defendant. Had the trial court conducted the assessment

requirement by MRE 702, it might well have determined that

42

Young (After Remand), supra at 475. 20


Dr. Gabriel's theory was not "recognized" as required by our rules in of evidence. of Indeed, Dr. the evidence have plaintiff provided

offered

support

Gabriel

should

sufficient notice to the trial court that his theory lacked general thing, acceptance Dr. Gabriel in the medical to community. cite a For one

was

unable

single

study

supporting his traumatic injury theory during a voir dire conducted at trial. The only authorities he offered for

the proposition that excessive amounts of Pitocin may cause cerebral palsy through the traumatic mechanism he described at trial were studies he cited in which Pitocin caused cerebral palsy in animals when given in excessive amounts. These studies did not involve the "bumping and grinding" mechanism on which Dr. Gabriel's expert testimony relied. In fact, Dr. Gabriel expressly distinguished the mechanism to which he attributed plaintiff's injuries from those at work in the animal studies. It would appear, then, that

there was little evidence that Dr. Gabriel's theory was "recognized," much less generally accepted, within

pediatric neurology. Second, had the court conducted the MRE 702 inquiry requested by defendant, it might have discovered that Dr. Gabriel's theory lacked evidentiary support. Dr. Gabriel

was unable to identify the specific part of Ms. Craig's

21


anatomy with which, according to his theory, plaintiff's head repeatedly collided during labor. Indeed, Dr. Gabriel

pointedly refused to identify this anatomical structure on a chart, contending This his that such to testimony his was beyond theory of his in

expertise. anything anatomy but

failure own that

root

causal

hypothetical Dr. Gabriel's

depiction testimony

female have

indicates

may

been too speculative under MRE 702 to assist the trier of fact. Finally, a Davis-Frye/MRE 702 hearing should have At no

alerted the court to the error described in part IV.

point did Dr. Gabriel opine that the traumatic and vascular mechanisms he described could cause cerebral palsy, or that those mechanisms might produce the asymmetrical development shown in plaintiff's MRI. Thus, Dr. Gabriel's testimony

supported plaintiff's medical malpractice claim only if the jury was permitted to assume, without supporting evidence, that a causal connection existed between these elements. As shown in part IV, this is not a permissible inference. Consequently, the court again had reason to conclude that Dr. Gabriel's testimony could not have "assist[ed] the

trier of fact" given the yawning gap between Dr. Gabriel's testimony and the conclusions plaintiff hoped the jury

would draw from it.

22


Although the trial court clearly erred in declining to review Dr. Gabriel's testimony before its admission, we

need not determine whether reversal on this basis alone is warranted under the "substantial justice" standard of our court rules.43 For the reasons stated below, remand for a

Davis-Frye hearing is unnecessary given plaintiff's failure to establish the causation element of his medical

malpractice claim. IV. JUDGMENT NOTWITHSTANDING THE VERDICT

Even if plaintiff were able to show upon remand that Dr. Gabriel's testimony was properly admitted, defendants would nevertheless be entitled to
JNOV.

The record reveals

that the proofs submitted by plaintiff do not support the verdict rendered by the jury because of plaintiff's failure to establish that defendants' breach of the applicable We

standard of care proximately caused his cerebral palsy. therefore reverse and remand for entry of

judgment

notwithstanding the verdict. A. STATUTORY AND COMMON LAW BACKGROUND In order to establish a cause of action for medical malpractice, a plaintiff must establish four elements: (1) the appropriate standard of care governing the defendant's

43

MCR 2.613(A). 23


conduct at the time of the purported negligence, (2) that the defendant breached that standard of care, (3) that the plaintiff injuries was were injured, the and (4) that of the the plaintiff's defendant's

proximate

result

breach of the applicable standard of care.44

These common-

law elements have been codified in MCL 600.2912a, which requires a plaintiff alleging medical malpractice to show that [t]he defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of defendant failing to provide that standard, the plaintiff suffered an injury. Furthermore, the plaintiff in a medical malpractice case must establish the proximate causation prong of his prima facie case by a preponderance of the evidence.45 "Proximate cause" is a legal term of art that

incorporates both cause in fact and legal (or "proximate") cause.46 We defined these elements in Skinner v Square D

44

Weymers v Khera, 454 Mich 639, 655; 563 NW2d 647

(1997). See MCL 600.2912a(2) (stating that "the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants").
46 45

Skinner v Square D Co, 445 Mich 153, 162-163; 516 24


Co: The cause in fact element generally requires showing that "but for" the defendant's actions, the plaintiff's injury would not have occurred. On the other hand, legal cause or "proximate cause" normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.[47] As a matter of logic, a court a must in find fact that of that the the the

defendant's plaintiff's

negligence injuries

was before

cause it can

hold

defendant's negligence was the proximate or legal cause of those injuries.48 Generally, an act or omission is a cause in fact of an injury only if the injury could not have occurred without (or "but for") that act or omission.49 need not prove for that an act or he While a plaintiff was the sole

omission must

catalyst

his

injuries,

introduce

evidence

permitting the jury to conclude that the act or omission was a cause.50 It is important to bear in mind that a plaintiff

NW2d 475 (1994).
47 48 49 50

Id. at 163 (citations omitted). Id. Id. See also Prosser, Torts (4th ed, 1971), p 239.

Jordan v Whiting Corp, 396 Mich 145, 151; 240 NW2d 468 (1976). 25


cannot

satisfy may more

this have than

burden caused a mere

by

showing injuries.

only Our or a

that case

the law

defendant requires

his

possibility

plausible

explanation.51

Rather, a plaintiff establishes that the

defendant's conduct was a cause in fact of his injuries only if he "set[s] forth specific facts that would support a reasonable inference of a logical sequence of cause and effect."52 A valid theory of causation, therefore, must be And while "'[t]he evidence

based on facts in evidence.53

need not negate all other possible causes,'" this Court has consistently required that the evidence "'exclude other

reasonable hypotheses with a fair amount of certainty.'"54 In Skinner, for example, we held that the plaintiff failed to show that the defendant's negligence caused the decedent's electrocution. Skinner was a product liability

action in which the plaintiff claimed that the decedent was killed because an electrical switch manufactured by the

defendant had malfunctioned.55

The plaintiff's decedent had

51 52 53 54

Skinner, supra at 172-173. Id. at 174. Id. at 166.

Id. at 166, quoting with approval 57A Am Jur 2d, Negligence,

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