Antonio Craig v. Oakwood Hospital ( 2004 )

Michigan Supreme Court
Lansing, Michigan
Opinion
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
ANTONIO CRAIG, by his next
friend, KIMBERLY CRAIG,
Plaintiff-Appellee,
v Nos. 121405
121407-09
OAKWOOD HOSPITAL, HENRY FORD 121419
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.
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 Davis-
Frye 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. The trial court thereafter
determined that defendant Henry Ford Health System was
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. The Court of Appeals affirmed the judgment of
liability, but ordered remittitur on lost wage earning
capacity.1 We reverse and remand the matter for entry of
judgment in defendants= favor.
I. FACTS AND PROCEDURAL HISTORY
This appeal 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 a channel for the intravenous
administration of medication, should the need arise.
Nurses applied an external fetal-uterine monitor to Ms.
Craig at approximately 9:30 A.M., at which time she still
had not experienced contractions. At 10:00, Ms. Craig
began to receive 1000 cc of a 5% Ringer’s lactate solution
through the “keep open” IV line.
Dr. Gennaoui, who had taken over for Dr. Kittur
2
Dr. Kittur is not a party to this appeal because the
jury determined that he was not negligent.
3
sometime after Ms. Craig was admitted, met with Ms. Craig
at approximately 11:00 A.M. He was concerned that Ms. Craig
and her child had been exposed to infection since her
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 argued, she had mistakenly received a double
dosage. Plaintiff’s standard of care expert, Paul
Gatewood, M.D., testified that Ms. Craig’s medical records
reveal that she was inadvertently given two doses of
Pitocin. The first was administered shortly after 11:00
a.m. upon Dr. Gennaoui’s order. Nurse Quinlan wrote a
check on Dr. Gennaoui’s order for Pitocin to indicate,
according to Dr. Gatewood, that she had performed Dr.
Gennaoui’s request and had administered Pitocin through the
3
Dr. Gennaoui testified that amniotic fluid, which was
discharged when plaintiff’s amniotic and chorionic
membranes burst, protected the fetus from infection.
4
“Pitocin” is a brand name for synthetic oxytocin.
5
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 already receiving
intravenously. Thus, according to Dr. Gatewood’s
testimony, Dr. Gennaoui had given a single order for
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 any complications. Medical records compiled
after plaintiff’s birth show that Ms. Craig began
experiencing contractions of “moderate” strength after
receiving Pitocin and that “moderate” contractions
continued until plaintiff’s delivery.
Plaintiff contends, however, that the records from a
fetal uterine monitor tell a different story. These
records, according to Dr. Gatewood, show that plaintiff
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
6
Dr. Gatewood described this solution as a mix of
dextrose and water.
5
because the Pitocin administered to Ms. Craig caused
contractions of excessive intensity and duration.
Plaintiff’s umbilical cord became compressed because of
these contractions, thereby decreasing the amount of blood
flowing to plaintiff. The result was the pattern of
decelerations in heart rate shown by 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 taken shortly after his birth depicts an
infant who had 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
7
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
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 and that these “are indicative of acute brain
injury.”
Two days after his birth, plaintiff was examined by
pediatrician Dr. Carolyn Johnson, who concluded that
plaintiff seemed to be healthy and displayed normal
cognitive functions. Plaintiff received a vastly different
diagnosis approximately one year later. On June 6, 1981,
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. Dr.
Nigro diagnosed plaintiff with nonprogressive
encephalopathy9 with global developmental delay and mild
spasticity. He concluded at the time and maintained
throughout this trial that the etiology or cause of
plaintiff’s condition was unclear.10
8
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).
9
“Encephalopathy” is a general term for any disease of
the brain. Random House Webster’s Unabridged Dictionary
(2d ed, 2001).
10
Dr. Nigro gave a slightly different diagnosis later,
7
Plaintiff initiated the present lawsuit in 1994
through his mother, Kimberly Craig, as next friend. He
alleged that Drs. Gennaoui and Kittur committed medical
malpractice in failing to monitor plaintiff’s heartbeat
with an internal uterine catheter until 2:30 P .M . on July
16, 1980. Further, he alleged that Dr. Gennaoui and his
colleagues negligently administered Pitocin to Ms. Craig
despite the fact that she presented physical symptoms
indicating that Pitocin was unnecessary and potentially
harmful. As a result, plaintiff alleged, plaintiff
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
written language, due to injury of the brain.” Random
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 This motion was denied.
Henry Ford filed a successful motion to sever.
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. The trial
court denied defendants’ motion for 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
11
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.
12
See People v Davis, 343 Mich 348; 72 NW2d 269
(1955); Frye v United States, 54 App DC 46; 293 F 1013
(1923).
9
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 A court necessarily
abuses its discretion when it “admits evidence that is
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
249 Mich App 534, 544.
14
469 Mich 880 (2003) (citations omitted).
15
People v Katt, 468 Mich 272, 278; 662 NW2d 12
(2003).
16
Id.10
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
MCR 2.613(A).
18
MRE 103(a).
19
Sniecinski v Blue Cross & Blue Shield, 469 Mich 124,
131; 666 NW2d 186 (2003).
20
Id., quoting Wilkinson v Lee, 463 Mich 388, 391; 617
NW2d 305 (2000).
21
Id.22
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. We agree.
A. MRE 702 AND DAVIS-FRYE ANALYSIS
Expert testimony is admitted 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 that govern the construction and
application of statutes.’”24 When the language of an
evidentiary rule is unambiguous, we apply the plain meaning
of the text “’without further judicial construction or
24
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
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 testimony.27 Generally, the expert may be
qualified by virtue of “knowledge, 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 professional
training of the expert witness.
(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
Id.26
People v Beckley, 434 Mich 691, 710-711; 456 NW2d
391 (1990) (opinion of BRICKLEY, J.).
27
MRE 702.
28
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 must have been based on a
“recognized” form of “scientific, technical, or 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
MRE 702.
30
Beckley, supra at 711 (opinion of BRICKLEY, J.).
31
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 this case was tried, the admission of expert
testimony was subject not only to the threshold
requirements of MRE 702, but also to the standard
articulated in People v Davis,35 now generally known in
Michigan as the Davis-Frye test.36 In Davis, we held that
expert opinion based on novel scientific techniques is
admissible only if the underlying methodology is generally
32
223 Mich App 485, 491; 566 NW2d 671 (1997)
(citations and quotation marks omitted).
33
Random House Webster’s Unabridged Dictionary (2d ed,
2001).
34
Id.35
343 Mich 348; 72 NW2d 269 (1955).
36
See Frye v United States, 54 App DC 46; 293 F 1013
(1923).
15
accepted within the scientific community.37 Thus, in
determining whether the proposed expert opinion was
grounded in a “recognized” field of scientific, technical,
or other specialized knowledge as was required by MRE 702,
a trial court was obligated to ensure that the expert
opinion was based on accurate and generally accepted
methodologies.38 The proponent of expert testimony bears
the burden of proving general acceptance under this
standard.39
B. THE RIAL COURT’S FAILURE TO
T PERFORM ITS
GATEKEEPING ROLE UNDER MRE 702
In this case, defendant Oakwood 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
Davis, supra at 370.
38
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.”).
39
People v Young (After Remand), 425 Mich 470, 475;
391 NW2d 270 (1986).
16
against his mother’s pelvic anatomy, thereby producing
permanent brain damage. This theory, according to
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. That is, 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 authorities
proffered by plaintiff in denying defendant’s motion for a
Davis-Frye hearing. Instead of consulting plaintiff’s
proffered scientific and medical literature, the court
erroneously assigned the burden of proof under Davis-Frye
to defendant—the party opposing the admission of Dr.
Gabriel’s testimony—and held that defendant was not
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 Davis-
Frye hearing. This abuse of discretion was predicated on
two fundamental legal errors.
First, the trial court erred in concluding that it had
no obligation to review plaintiff’s proposed expert
testimony unless defendant introduced evidence that the
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 principles. These obligations applied
irrespective of the type of expert opinion 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. Instead, plaintiff repeatedly stressed
that medical literature amply supported the proposition
that Pitocin could cause brain damage—a proposition
defendant did not contest—and supplied the court with
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, a Davis-Frye hearing was more than
justified in light of the information before the trial
court when it ruled on defendant’s motion in limine. The
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 of evidence. Indeed, the evidence plaintiff
offered in support of Dr. Gabriel should have provided
sufficient notice to the trial court that his theory lacked
general acceptance in the medical community. For one
thing, Dr. Gabriel was unable to cite a 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 that such testimony was beyond his
expertise. This failure to root his causal theory in
anything but his own hypothetical depiction of female
anatomy indicates that Dr. Gabriel’s testimony may have
been too speculative under MRE 702 to assist the trier of
fact.
Finally, a Davis-Frye/MRE 702 hearing should have
alerted the court to the error described in part IV. At no
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
standard of care proximately caused his cerebral palsy. We
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 was injured, and (4) that the plaintiff’s
injuries were the proximate result of the defendant’s
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).
45
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
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 must find that the
defendant’s negligence was a cause in fact of the
plaintiff’s injuries before it can hold that the
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 While a plaintiff
need not prove that an act or omission was the sole
catalyst for his injuries, he must 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
Id. at 163 (citations omitted).
48
Id.49
Id. See also Prosser, Torts (4th ed, 1971), p 239.
50
Jordan v Whiting Corp, 396 Mich 145, 151; 240 NW2d
468 (1976).
25
cannot satisfy this burden by showing only that the
defendant may have caused his injuries. Our case law
requires more than a mere possibility or a 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
based on facts in evidence.53 And while “'[t]he evidence
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
Skinner, supra at 172-173.
52
Id. at 174.
53
Id. at 166.
54
Id. at 166, quoting with approval 57A Am Jur 2d,
Negligence, § 461, p 422.
55
Skinner, supra at 157.
26
built a tumbling machine that was used to wash metal parts,
and had used the defendant’s switch to turn the machine on
and off.56 Wires from the defendant’s switch were attached
to the tumbling machine with alligator clips.57 Immediately
before his death, the plaintiff’s decedent was found with
both alligator clips in his hands while electricity coursed
through his body.58
In order to find that a flaw in the defendant’s
product was a cause in fact of that electrocution, the jury
would have had to conclude, in effect, that the decedent
had disconnected the alligator clips and that the machine
had somehow been activated again, despite being
disconnected from its power source.59 Not only was this
scenario implausible, but there was no evidence to rule out
the possibility that the decedent had been electrocuted
because he had mistakenly touched wires he knew to be live.
There was no evidence to support the plaintiff’s theory of
causation.60 Consequently, we concluded that the trial
court had properly granted summary disposition to the
56
Id.57
Id.58
Id.59
Id.60
Id.27
defendant.
Mulholland v DEC Int’l,61 provides a useful factual
counterpoint to Skinner. In Mulholland, the plaintiffs’
herd of milking cows contracted mastitis, a bacterial
infection of the udder, after the plaintiffs began to use a
milking system built by the defendants.62 Key expert
testimony was provided by Sidney Beale, an expert in
agriculture and dairy science. Mr. Beale had observed a
milking at the plaintiffs’ farm and deduced that the
mastitis was related to the improper configuration of the
milking system.63 He suggested that the plaintiffs
implement certain changes, and, indeed, once these were put
into practice, the plaintiffs noticed “a decrease in
mastitis and an increase in milk production in the herd.”64
We held, on the basis of this expert testimony, that
the trial court improperly granted a directed verdict to
the defendant.65 Because Mr. Beale’s testimony was based on
his direct observation of the milking machinery, its use on
the plaintiffs’ herd, and teat inflammation in the
61
432 Mich 395; 443 NW2d 340 (1989).
62
Id. at 399.
63
Id. at 400.
64
Id.65
Id. at 398.
28
plaintiff’s herd following milking, a jury could have
reasonably concluded, on the basis of this testimony, that
the milking machinery caused mastitis.66 While Mr. Beale’s
testimony did not rule out every other potential cause of
mastitis, this fact merely related to the credibility of
his testimony; his opinion was nevertheless admissible and
sufficient to support a finding of causation.67
B. PLAINTIFF’S FAILURE TO ESTABLISH CAUSATION
The statutory and common-law background provided above
makes it clear that a plaintiff’s prima facie case of
medical malpractice must draw a causal connection between
the defendant’s breach of the applicable standard of care
and the plaintiff’s injuries. In this case, the evidence
adduced at trial cannot support the jury’s verdict because
plaintiff has failed to make the necessary causal links.
Even if plaintiff had shown that defendants breached the
standard of care, the jury had no basis in the record to
connect this breach to the cerebral palsy, mental
retardation, and other injuries now presented by plaintiff.
At trial, plaintiff attempted to connect defendants’
purported violations of the applicable standard of care to
66
Id. at 413.
67
Id.29
plaintiff’s 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 records of plaintiff and Ms. Craig, and opining
that defendants breached the applicable standard of care by
administering excessive amounts of Pitocin and by failing
to use an internal uterine pressure catheter. Dr. Gatewood
also testified that records from fetal and uterine monitors
indicated that Ms. Craig experienced excessive and severe
contractions, and that these reduced the flow of oxygenated
blood to plaintiff both by compressing the umbilical cord
and by reducing the periods of oxygenation between
contractions. Dr. Gatewood testified that, as a result,
plaintiff suffered from hypoxia and correlated
decelerations in his heart rate.
While Dr. Gatewood’s testimony connected defendants’
alleged breach of the standard of care to physiological
symptoms displayed by plaintiff before his birth, he
specifically declined to connect these prebirth conditions
to the particular injuries for which plaintiff sought
compensation. Indeed, Dr. Gatewood denied he had the
requisite expertise to make the causal linkage and
expressly refused to testify to a causal relationship
between plaintiff’s neurological diseases and his prenatal
30
care. He insisted instead that “what happened to the
baby’s brain” was “[within] the purview of a neurologist.”68
Plaintiff contended that the link between defendants’
negligence and plaintiff’s injuries was to be supplied
instead by the expert testimony of Dr. Ronald Gabriel. Dr.
Gabriel opined that plaintiff’s injuries were attributable
to two mechanisms that affected plaintiff’s brain before
delivery; he referred to these mechanisms as “traumatic”
and “vascular.” According to Dr. Gabriel’s testimony,
plaintiff sustained “traumatic” injuries when excessive
uterine contractions induced by Pitocin caused plaintiff’s
head to be “pounded or grinded [sic] into [his mother’s]
pelvic rim” during her labor. Because of this pounding,
68
This is a critical fact; the dissent’s analysis
suffers for paying insufficient heed to Dr. Gatewood’s
disclaimer of expertise regarding the etiology of cerebral
palsy. See post at 11-12.
Indeed, the dissent seems to conflate the testimony of
plaintiff’s two principal experts by concluding that Dr.
Gabriel’s “bumping and grinding” theory of causation was
somehow supported by Dr. Gatewood’s testimony about the
dangers of excessive doses of Pitocin. In reality, there
was a fundamental gap between the theories proffered by
these experts. Dr. Gabriel testified that excessive doses
of Pitocin caused plaintiff’s head to be ground against his
mother’s pelvic anatomy and that this grinding, in turn,
led to hypoxia. Dr. Gabriel did not testify that an
excessive dosage of Pitocin alone—that is, without head
compression injuries sustained from repeated contact with
maternal anatomy—could have caused plaintiff’s cerebral
palsy.
31
plaintiff’s brain sustained compression injuries, which
resulted in elevated venous “pressures” and impeded
“arter[ial] blood flow.” Dr. Gabriel analogized this
“venous component” to the distribution of water through a
lawn sprinkler system, explaining that increased pressure
in certain areas of the brain reduced the flow of
oxygenated blood to outlying, “watershed” regions of the
brain just as “the last sprinkler who [sic] gets the
pressure is the least able to 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
accompanying vascular effects.
Even if we accept Dr. Gabriel’s testimony in full, a
fatal flaw remains in plaintiff’s prima facie case: Dr.
Gabriel never testified that the injuries stemming from
this pounding and its accompanying vascular effects could
cause cerebral palsy, mental retardation, or any of the
other conditions now presented by plaintiff.
Dr. Gabriel began his testimony by explaining that an
MRI image showed that plaintiff’s brain tissue had developed
asymmetrically. He failed, however, to trace this
asymmetric development either back to the traumatic and
vascular mechanisms he described or forward to the specific
32
neurological conditions presently displayed by plaintiff.
Thus, how exactly the mechanisms he described led to
cerebral palsy (as opposed to any other neurological
impairment) and how they were connected to the asymmetric
brain development depicted in plaintiff’s MRI was never
explained.69
It is axiomatic in logic and in science that
correlation is not causation.70 This adage counsels that it
is error to infer that A causes B from the mere fact that A
and B occur together. Given the absence of testimony on
causation supplied by Dr. Gabriel, the jury could have
found for plaintiff only if it indulged in this logical
error—concluding, in effect, that evidence that plaintiff
may have sustained a head injury, combined with evidence
that plaintiff now has cerebral palsy, leads to the
conclusion that the conduct that caused plaintiff’s head
69
Compare 1st of America Bank, Mid-Michigan v United
States, 752 F Supp 764, 765 (ED Mich, 1990) (finding that
the negligence of Air Force physicians proximately caused a
child’s cerebral palsy where the plaintiff and the
defendant presented extensive testimony on the etiology of
cerebral palsy); Bradford v McGee, 534 So 2d 1076 (Ala,
1988) (holding that the plaintiffs presented evidence
sufficient for the jury to determine that the defendant’s
negligence proximately caused their son’s cerebral palsy);
Dick v Lewis, 506 F Supp 799 (D ND, 1980).
70
United States v O’Hagan, 521 US 642, 691 n 7; 117 S
Ct 2199; 138 L Ed 2d 724 (1997) (Thomas, J., concurring in
part and dissenting in part).
33
injury also caused his cerebral palsy.
Such indulgence is prohibited by our jurisprudence on
causation. We have long required the plaintiff to show
“that ‘but for’ the defendant’s actions, the plaintiff’s
injury would not have occurred.”71 Where the connection
between the defendant’s negligent conduct and the
plaintiff’s injuries is entirely speculative, the plaintiff
cannot establish a prima facie case of negligence.72
Here, any causal connection between plaintiff’s
cerebral palsy and the events described by Dr. Gabriel had
to be supplied ex nihilo by the jury. Therefore, the trial
court erred as a matter of law in denying defendants’
motion for JNOV. We reverse the judgment of the Court of
Appeals and remand for proceedings consistent with this
opinion.
V. SUCCESSOR LIABLITY
Although we have established that plaintiff has failed
to state a valid claim of medical malpractice, we must also
correct an erroneous legal conclusion in the published
opinion of the Court of Appeals.
The panel held that Henry Ford Health Care Corporation
71
Skinner, supra at 163 (emphasis added).
72
See id. at 174.
34
(Henry Ford)73 was liable as a corporate successor to
Associated Physicians, P.C. To the contrary, we conclude
that the trial court erroneously imposed successor
liability on Henry Ford.
At the time of the alleged malpractice in 1980,
defendant Drs. Kittur and Gennaoui were employees of
Associated Physicians, P.C., which was a medical
professional corporation organized under the Professional
Service Corporation Act.74
Six years after plaintiff’s birth, Associated
Physicians, P.C., began to consider the possibility that
Henry Ford might take over its administrative and
bookkeeping services. While Henry Ford was interested in
pursuing this arrangement with Associated Physicians, the
latter’s corporate form posed an obstacle. As a
professional corporation, Associated Physicians, P.C.,
could neither legally merge with nor sell its shares to
Henry Ford, given that Henry Ford=s shareholders were not
physicians.75
73
Henry Ford Health Care Corporation became Henry Ford
Heath System in 1989. For the sake of clarity, we refer to
both as “Henry Ford.”
74
MCL 450.221 et seq.
75
See generally Professional Services Corporation Act,
MCL 450.221 et seq. The shares of a professional
35
Consequently, Associated Physicians, P.C., split into
two entities. Its administrative portion was incorporated
Associated Physicians Medical Center, Inc., a business
corporation in which nonphysicians could legally share
ownership and control. Its medical practice, however,
became APMC, P.C., a new professional corporation.
Henry Ford purchased all the shares of Associated
Physicans Medical Center, Inc., in accordance with the
Business Corporation Act.76 Henry Ford thereby became the
parent corporation of Associated Physicians Medical Center,
Inc. As the parties intended before the sale, APMC, P.C.,
entered into an agreement with Associated Physicians
Medical Center, Inc., in which the latter controlled
corporation may not be
sold or transferred except to an individual who
is eligible to be a shareholder of the
corporation or to the personal representative or
estate of a deceased or legally incompetent
shareholder or to a trust or split interest
trust, in which the trustee and the current
income beneficiary are both licensed persons in a
professional corporation. [MCL 450.230.]
An individual may not become a shareholder in a
professional services corporation unless he or she is a
“licensed person.” MCL 450.224. A “licensed person” is
“an individual who is duly licensed or otherwise legally
authorized to practice a professional service by a court,
department, board, commission, an agency of this state or
another jurisdiction, or any corporation all of whose
shareholders are licensed persons.” MCL 450.222(a).
76
MCL 450.1101 et seq.
36
billing, record keeping, and other administrative aspects
of the medical practice. This arrangement ended in 1993,
when APMC, P.C., dissolved before the initiation of the
present lawsuit.
Henry Ford argued that, because it assumed the
ownership of only the administrative portion of Associated
Physicians, P.C. (which was vicariously liable to
plaintiff), the equitable concerns that justify the
imposition of successor liability are not present in this
case. The trial court severed the issue of Henry Ford’s
successor liability. After a one-hour bench trial, the
trial court held that Henry Ford was liable as a successor
corporation to Associated Physicians, Inc. The Court of
Appeals agreed. Both courts relied in part on the factors
listed in Turner v Bituminous Cas Co77 as supporting the
imposition of successor liability.78
77
397 Mich 406, 430; 244 NW2d 873 (1976).
78
See Turner, 397 Mich 430:
(1) There was basic continuity of the
enterprise of the seller corporation, including,
apparently, a retention of key personnel, assets,
general business operations, and even the
[corporate] name.
(2) The seller corporation ceased ordinary
business operations, liquidated, and dissolved
soon after distribution of consideration received
from the buying corporation.
37
We recently described the scope of successor liability
in Foster v Cone-Blanchard Machine Co.79 There, we observed
the “traditional rule” that successor liability requires an
examination of “the nature of the transaction between
predecessor and successor corporations.”80 In a merger in
which stock is exchanged as consideration, the successor
corporation “generally assumes all its predecessor’s
liabilities.”81 When the successor purchases assets for
cash, however, the successor corporation assumes its
predecessor’s liabilities only
(1) where there is an express or implied
assumption of liability; (2) where the
transaction amounts to a consolidation or
merger;[82] (3) where the transaction was
fraudulent; (4) where some of the elements of a
purchase in good faith were lacking, or where the
transfer was without consideration and the
(3) The purchasing corporation assumed those
liabilities and obligations of the seller
ordinarily necessary for the continuation of the
normal business operations of the seller
corporation.
(4) The purchasing corporation held itself
out to the world as the effective continuation of
the seller corporation.
79
460 Mich 696; 597 NW2d 506 (1999).
80
Id. at 702.
81
Id.82
See Turner, supra at 419-420 (“It is the law in
Michigan that if two corporations merge, the obligations of
each become the obligations of the resulting
corporation.”).
38
creditors of the transferor were not provided
for; or (5) where the transferee corporation was
a mere continuation or reincarnation of the old
corporation.[83]
Plaintiff has not alleged that the sale of Associated
Physicians Medical Center, Inc., was fraudulent, in bad
faith, or lacking in consideration. Likewise, plaintiff
has adduced no evidence that Henry Ford expressly or
impliedly assumed the liabilities of Associated Physicians
Medical Center, Inc. Our inquiry therefore must focus on
whether (1) the transaction was a consolidation or merger
(either de jure or de facto), and (2) whether Henry Ford is
a “mere continuation”84 of Associated Physicians.
Plaintiff’s claim fails on both accounts. First,
plaintiff does not allege that a de jure merger took place,
and he has not demonstrated that a de facto merger
occurred. A de facto merger exists when each of the
following requirements is met:
(1) There is a continuation of the
enterprise of the seller corporation, so that
there is a continuity of management, personnel,
physical location, assets, and general business
operations.
(2) There is a continuity of shareholders
which results from the purchasing corporation
paying for the acquired assets with shares of its
own stock, this stock ultimately coming to be
83
Id. at 702 (citations omitted).
84
Id.
39
held by the shareholders of the seller
corporation so that they become a constituent
part of the purchasing corporation.
(3) The seller corporation ceases its
ordinary business operations, liquidates, and
dissolves as soon as legally and practically
possible.
(4) The purchasing corporation assumes those
liabilities and obligations of the seller
ordinarily necessary for the uninterrupted
continuation of normal business operations of the
seller corporation. [85]
This transaction is not a de facto merger simply because
Henry Ford, the purchasing corporation, paid in cash rather
than stock. Thus, there is no “continuity of shareholders
which results from the purchasing corporation paying for
the acquired assets with shares of its own stock. . . .”86
We also conclude that Henry Ford is not a “mere
continuation” of Associated Physicians Medical Center, Inc.
As the history recited above shows, Associated Physicians
split into two entities immediately before Henry Ford’s
purchase of Associated Physicians Medical Center, Inc. The
professional corporation—Associated Physicians’ medical
practice—became APMC, Inc. Henry Ford was therefore able
to purchase only the administrative aspects of the former
85
Turner, supra at 420 (citations, quotation marks,
and emphasis deleted), quoting Shannon v Samuel Langston
Co, 379 F Supp 797, 801 (WD Mich, 1974).
86
Id.
40
professional corporation. The core functions of the entity
that originally became vicariously liable to plaintiff were
carried on exclusively by APMC, Inc., a professional
corporation, rather than the business corporation purchased
by 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 Associated
Physicians, P.C., is that which continued its medical
practice—namely, APMC, Inc.
Moreover, we have never applied successor liability in
the medical malpractice context. Plaintiff has adduced no
reason why we should do so in this case. Not only are the
Turner/Foster requirements not met here but, more
important, the policies that justify the imposition of
successor liability are noticeably inapplicable here. We
stated in Foster that
[t]he thrust of the decision in Turner was to
provide a remedy to an injured plaintiff in those
cases in which the first corporation “legally
and/or practically becomes defunct.” . . . The
underlying rationale for the Turner Court's
decision to disregard traditional corporate law
principles was to provide a source of recovery
for injured plaintiffs.[88]
87
Foster, supra at 702.
88
Foster, supra at 705-706.
41
Here, plaintiff has already sought and obtained a judgment
from Drs. Gennaoui and Kittur, from Associated Physicians,
P.C., and from Oakwood Hospital. Because plaintiff
obtained a judgment against other sources, there was no
need to impose successor liability on Henry Ford, even if
the Turner/Foster factors had justified such liability.
The trial court erred in imposing successor liability on
Henry Ford and the Court of Appeals erroneously affirmed
this ruling.
V. CONCLUSION
We conclude that the trial court erred when it refused
to grant defendants’ motion for judgment notwithstanding
the verdict. Plaintiff failed to present any evidence from
which the fact-finder could reasonably conclude that any
breach of the applicable standard of care by defendants
proximately caused his cerebral palsy, mental retardation,
and other neurological conditions. In addition, the trial
court improperly denied defendant Oakwood Hospital’s motion
to compel an evidentiary hearing regarding the
qualifications and theories propounded by one of the
plaintiff=s expert witnesses. Finally, the trial court
erred in concluding that Henry Ford Health Care Corporation
was a corporate successor to the professional medical
42
corporation that employed Dr. Gennaoui. For those reasons,
we reverse the judgment of the Court of Appeals and remand
the matter for entry of judgment in defendants= favor.
Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Stephen J. Markman
43
S T A T E O F M I C H I G A N
SUPREME COURT
ANTONIO CRAIG, by his next
friend, KIMBERLY CRAIG,
Plaintiff-Appellee,
v Nos. 121405
121407-121409
121419
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.
_______________________________
CAVANAGH, J. (concurring).
I concur with the majority in this case. I write
separately, however, because I do not agree with some of
the rationale regarding successor liability articulated by
the majority in part V. Therefore, as it pertains to
successor liability, I concur in the result only.
Michael F. Cavanagh
S T A T E O F M I C H I G A N
SUPREME COURT
ANTONIO CRAIG by his next
friend, Kimberly Craig,
Plaintiff-Appellee,
v Nos. 121405
121407-121409
OAKWOOD HOSPITAL, HENRY FORD 121419
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.
_______________________________
KELLY, J. (concurring in part and dissenting in part).
I dissent from the majority's decision that the trial
court abused its discretion in denying a Davis-Frye1
hearing. I also disagree that there was insufficient
evidence of causation. I agree with the conclusion that
Henry Ford Hospital is not liable under the theory of
successor liability. Therefore, with respect to the
1
People v Davis, 343 Mich 348; 72 NW2d 269 (1955), and
Frye v United States, 54 App DC 46; 293 F 1013 (1923).
defendants other than Henry Ford Hospital, I would affirm
the rulings of both lower courts for plaintiff.
The Davis-Frye Hearing
Defendant Oakwood Hospital failed to present any
substantiation for its motion asserting that the testimony
of plaintiff's causation expert, Dr. Ronald Gabriel, was
inadmissible because it was not recognized in the
scientific community. Rule 2.119(A)(1)(b) of the Michigan
Court Rules requires that a motion state with particularity
the grounds and authority on which it is based. All that
defendant stated was a conclusory and overbroad statement
that
[t]he testimony and opinions regarding
plaintiff's condition and the causes for it that
were offered by Dr. Ronald Gabriel in deposition
are groundless in the extreme and, by his own
admission, without support or even mention in
modern medical literature.
To this statement, defendant attached several pages of
Dr. Gabriel's deposition testimony. After reviewing them,
I find that Dr. Gabriel's only relevant admission is that
few recent studies regarding fetal head compression exist
because it occurs rarely. The reason it occurs rarely is
that fetal heart monitors and other medical technology help
detect the conditions associated with it so that head
compression is averted.
2
A lack of recent studies does not necessarily indicate
that a scientific theory has been abandoned or has fallen
into disrepute. It may indicate that the theory has become
generally accepted. For instance, although there are no
recent scientific studies showing the shape of the earth,
the statement, "The earth is round," would be accepted in
the scientific community.
In its response to defendant's motion, plaintiff cited
the Physician's Desk Reference and quoted a textbook
describing the effects of labor on a fetus. Defendant
offered nothing in response. Had it set forth specific
grounds and authority to support the motion, a Davis-Frye
hearing would have been appropriate.
Under the majority's relaxed standard articulated
today, whenever in the future a party claims that a theory
is "groundless in the extreme," it appears that party will
be entitled to a Davis-Frye hearing. This effectively
removes from the trial court the discretion to decide
whether a hearing is needed, making it automatic. Criminal
defendants questioning proffered testimony regarding the
psychological effect their actions had on a child victim
could receive a Davis-Frye hearing on the bald assertion
that the testimony is unacceptable in the scientific
community.
3
Defendant's written motion was vague. Attached to it
was some of Dr. Gabriel's deposition testimony in which he
stated that a compression 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 to Dr. Gabriel's testimony that
plaintiff had experienced a traumatic head injury during
childbirth. It asked for a hearing at which it might
present an expert to testify that there is no scientific
support for this theory. Defendant did not have an expert
nor did it provide an affidavit signed by an expert
indicating that Dr. Gabriel's theory is not recognized in
the scientific community.
In denying the motion, the judge noted:
The problem with your [defendant's] motion
is you don't have any Affidavits. You don't have
any evidence in there that -- I mean, that there
should be a Davis Frye Hearing. I mean, it's just
you as an attorney saying that . . . .[granting a
hearing without any support for defendant's
argument] 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.[2]
2
As did the judge in this case, others have noted the
4
The judge indicated a willingness to revisit the motion
should defendant provide support for its contention: "[Y]ou
can submit anything additional. I will take a look at it.
But that's my ruling today." Defendant never renewed the
motion.
difference between the burden of persuasion, which is on
the proponent of the evidence, and the initial burden of
production. "Because of judicial economy and the 'liberal
thrust' of the rules pertaining to experts, it seems
reasonable to place the initial burden of production on the
opponent for purposes of [a] hearing." Gentry v Magnum, 195
W Va 512, 522; 466 SE2d 171 (1995). Appellate decisions in
the area offer "little guidance on how trial courts should
procedurally accomplish their gatekeeping responsibilities
without frustrating" the policy of liberal admissibility of
expert evidence. Alberts v Wickes Lumber Co, 1995 US Dist
LEXIS 5893 (ND Ill, 1995).
Commentators have also addressed the problem. They
have noted that allocating the initial burden of production
to the opponent of the evidence "furthers the []
gatekeeping objective without hampering the 'liberal
thrust' of the [rules of evidence]." Accordingly, the
opponent's burden is merely to go forward with evidence
showing that the plaintiff's expert proof is inadmissible.
"Plaintiff bears the burden of showing by a preponderance
of the evidence that the expert's opinion is admissible."
Berger, Procedural paradigms for applying the Daubert test,
78 Minn L Rev 1345, 1365-1366 (1994). See, also, Brown,
Procedural issues under Daubert, 36 Hous L Rev 1133, 1140-
1141 (1999). While these decisions and articles deal with
the newer Daubert test, the inquiry about who bears the
burden of production is not affected. See Daubert v
Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct
2786; 125 L Ed 2d 469 (1993). The change occasioned by the
adoption of the Daubert test relates only to what the
proponent must show to prove admissibility once the
determination is made that a hearing is warranted.
5
The Michigan Rules of Evidence grant considerable
deference to a trial judge in ruling on motions. With
regard to preliminary questions, MRE 104(a) provides that
questions regarding the qualification of a person to be a
witness and the admissibility of evidence "shall be
determined by the court . . . . In making its
determination, it is not bound by the Rules of Evidence
except those with respect to privileges." Contrary to the
majority's assertions and in accordance with this rule, the
trial court was not bound by MRE 702, which governs the
testimony of expert witnesses, when it ruled on defendant's
motion.
It is without question that, once a defendant shows
that a genuine issue exists with regard to a theory's
acceptance, the theory's proponent must prove its
acceptance in the medical community. But before that, the
party raising the issue must present more than a conclusory
allegation that an issue exists.
Defendant failed to make the necessary showing in this
case. It never provided support for counsel's proposition
that Dr. Gabriel's traumatic injury theory lacked
recognition in the scientific community. Even given the
opportunity to provide support to the court, defendant was
either unwilling or unable to do so. Hence, the trial
6
court did not abuse its discretion when it refused to hold
a Davis-Frye hearing.
The Evidence of Causation
Defendants assert that plaintiff failed to present
sufficient evidence that his damages were caused by
defendants' medical malpractice to allow the case to go to
the jury. In presenting its evidence of a prima facie case,
a plaintiff must show causation but need not use any
particular formulation of words.
In this case, plaintiff's expert did not say "Antonio
Craig's cerebral palsy was caused by hypoxia resulting from
defendants' breaches of the standard of care." Although
desirable, such precision is simply not mandated. "[T]he
plaintiff's evidence is sufficient if it 'establishes a
logical sequence of cause and effect, notwithstanding the
existence of other plausible theories . . . ." Skinner v
Square D Co, 445 Mich 153, 159-160; 516 NW2d 475 (1994),
quoting Mulholland v DEC Int'l Corp, 432 Mich 395, 415; 443
NW2d 340 (1989).
The trial court ruled found that plaintiff presented
sufficient evidence. After the jury found for plaintiff,
defendants moved for judgment notwithstanding the verdict.
The motion was denied, and on appeal defendants challenge
that ruling. They question the sufficiency of the evidence
7
only with respect to the element of causation.
The standard for reviewing a decision on a motion for
judgment notwithstanding the verdict is deferential to the
nonmoving party:
If reasonable jurors could disagree, neither
the trial court nor this Court has the authority
to substitute its judgment for that of the jury.
[Matras v Amoco Oil Co, 424 Mich 675, 682; 385
NW2d 586 (1986).]
The trial court found:
Dr. Donn testified that Pitocin can cause
both trauma and hypoxia. Dr. Gatewood testified
that Pitocin can cause compression, and
compression can cause head injury. Dr. Dombrowski
testified that Pitocin can cause trauma and
hypoxia. Dr. Gabriel testified that Antonio
suffered a brain injury during labor and
delivery, based on the character of the labor and
delivery, based on the fetal monitoring, based on
the positioning of the head, based on the MRI
findings, it was caused by the use of Pitocin. He
testified that there was compression of the head
in the pelvic ridge. There was elevation of the
venous pressure and loss of blood flow and the
loss of oxygen and fusing the brain.
Testimony was also presented that an excessive dose of
Pitocin causes cerebral palsy in animals. The majority
notes that animal experiments are the only authority that
plaintiff offered showing a correlation between excessive
amounts of Pitocin and cerebral palsy. The implication is
that animal studies are insufficient evidence upon which to
base medical expert testimony. That is incorrect.
Dr. Gabriel's authority was sufficient for a jury
8
reasonably to infer that the same effects occur in humans.
Dr. Gabriel also testified that the animal studies were the
types "upon which the American Medical Establishment
formulated their warnings on the use of oxytoxic drugs."
These warnings appear in medical reference materials
discussing the effects of Pitocin. Defendants did not
refute these statements.
Dr. Gabriel testified that he believed that excessive
Pitocin caused plaintiff's condition. He testified that the
drug affected plaintiff in two ways. It produced both a
vascular effect and a traumatic effect. At trial, Dr.
Gabriel used the terms "pounding and grinding" to explain
the traumatic component of the injury. He testified:
In part, what happened to Antonio I think is
more complicated because I think there is a
traumatic component as well as a vascular
component. Those studies showed the vascular
component, that is to say the reduced blood flow.
Antonio also suffered from the trauma of the
head being pounded or grinded [sic] into the
pelvic rim with successive uterine contractions
which were of a high pressure and which resulted
in marked decelerations. So I think it's a
combination of vascular and trauma.
Dr. Gabriel testified that what happened to Antonio Craig
would not have happened without the administration of
Pitocin.
The majority focused attention on Dr. Gabriel's
9
"pounding and grinding" theory as if it were the only
theory that plaintiff presented. It was not. Dr. Gabriel
testified that there were two different contributors to
plaintiff's injuries. He claimed that plaintiff suffered
from both a decreased blood flow and from a traumatic
compression injury.3
In addition to Dr. Gabriel, Dr. Paul Gatewood
testified for plaintiff regarding the standard of care. He
stated that an excessive dosage of Pitocin was given to
plaintiff's mother. In his expert opinion, this was a
deviation from the standard of care. Dr. Gatewood also
explained that the administration of excessive Pitocin was
3
The majority maintains that "Dr. Gabriel did not
testify that an excessive dosage of Pitocin alone . . .
could have caused plaintiff's cerebral palsy." Ante at 31
n 68 (emphasis in original). Yet, the majority begins its
causation discussion by noting that "[e]ven if plaintiff
were able to show upon remand that Dr. Gabriel's testimony
was properly admitted, defendants would nevertheless be
entitled to JNOV." Ante at 23. Thus, for purposes of its
causation discussion, the majority assumes both theories
were admissible. Were this not the case, the proper outcome
should be a remand for a Davis-Frye hearing, not an
appellate ruling that the defendants were entitled to JNOV.
The testimony of Dr. Gabriel indicates that excessive
Pitocin causes reduced blood flow ("the vascular
component"). The studies showed a link between this
vascular component and cerebral palsy. There was sufficient
evidence of causation, regardless of the majority's reading
of the record.
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the proximate cause of Antonio's injuries.4
After Dr. Gatewood established a breach of duty, Dr.
Gabriel testified that excessive Pitocin causes fetal brain
damage and cerebral palsy in animals. In Dr. Gabriel’s
opinion, the excessive Pitocin caused the fetal brain
damage that led to Antonio’s cerebral palsy.5 In all, there
was sufficient evidence to establish the element of
causation. The jury was entitled to decide the case on the
evidence presented.
Conclusion
The failure to hold a Davis-Frye hearing was not an
abuse of discretion under the facts of this case. Defendant
Oakwood had an obligation to provide support for the claim
that Dr. Gabriel's traumatic injury theory was not accepted
within the scientific community.
Moreover, plaintiff presented sufficient evidence to
establish the element of causation. Both Dr. Gabriel and
4
When plaintiff's counsel asked whether these
deviations "were the proximate causes of the reduced
oxygen, reduced blood flow to the fet[us] here Antonio
Craig," the doctor answered "[T]hese deviations are a
result in the hypoxic episodes . . . all of these factors
contributed to the development and prolongation of the
interim hypoxia that this baby's brain suffered."
5
When asked whether Antonio’s cerebral palsy was
related to the administering of Pitocin, the doctor
testified that “without Pitocin this would not have
happened.”
11
Dr. Gatewood testified effectively that an excessive dosage
of Pitocin gave rise to the conditions that caused the
baby's injuries.
Therefore, I would affirm the decision of the Court of
Appeals on all issues except that Henry Ford Hospital is
liable under a theory of successor liability. In that
regard, I agree with the majority's conclusion that the
Court of Appeals was incorrect. With that exception, the
decision of the Court of Appeals should be affirmed.
Marilyn Kelly
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