DEBBIE FERGUSON V PORT HURON HOSP
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STATE OF MICHIGAN
COURT OF APPEALS
DEBBIE FERGUSON, Personal Representative of
the Estate of TINA M. WILSON, Deceased,
UNPUBLISHED
April 10, 2007
Plaintiff-Appellant,
v
No. 263141
St. Clair Circuit Court
LC No. 96-003351-NH
PORT HURON HOSPITAL and DR. S. A.
MAKKI,
Defendants-Appellees,
and
ESTATE OF SUSAN WINE and BLUE WATER
MENTAL HEALTH CLINIC,
Defendants.
Before: Borrello, P.J., and Jansen and Cooper, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals as of right the trial court’s directed
verdict of no cause of action. Because plaintiff failed to introduce or proffer sufficient evidence
of causation during any stage of the proceedings below, we affirm.
I. Facts
On March 27, 1994, Tina M. Wilson (Wilson) committed suicide by carbon monoxide
inhalation at the home of her former therapist Susan Wine (Wine). Wilson had a history of
depression and several suicide attempts.
Wilson had sporadically treated with her personal psychiatrist, defendant Makki, since
1989. In January 1994, Makki was informed that Wilson had attempted suicide, determined that
1
1
Makki is a board-certified psychiatrist. Makki was not an employee of Port Huron Hospital,
(continued…)
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it was necessary to hospitalize her, and admitted her to defendant Port Huron Hospital. Makki
testified, “I couldn’t take any chances, she had to be hospitalized.”
Wilson2 was hospitalized in the Port Huron Hospital from January 6, 1994, until January
21, 1994. During that period, Wine was assigned as Wilson’s primary therapist and was in
charge of leading Wilson’s therapy sessions. Also during the hospitalization, Wilson informed
the hospital staff that she had not been getting along with her mother. Wilson apparently told
Makki on or about January 20, 1994, that she did not want to move back in with her mother
following her discharge, and that she had “a backup plan.”
After Wilson’s discharge, Makki did not see her again until February 10, 1994. At that
time, Wilson told Makki that she had become involved “in a love triangle,” and that she was
“living with another woman.” Makki did not inquire regarding the details of these statements,
and did not ask Wilson who the woman was. Makki did not see Wilson again until February 28,
1994.
Wilson was again hospitalized at Port Huron Hospital from February 27, 1994, until
March 14, 1994. Soon after Wilson was readmitted, Hospital staff was notified that Wine was
behaving inappropriately with a patient, that Wine had apparently removed the patient’s
restraints, and that Wine was “in bed with the patient petting and caressing her.” The patient was
Tina Wilson. Wine maintained that her interaction with Wilson was not inappropriate.
Wine was asked to go home and not to return to the hospital until her supervisors had a
chance to speak with her. However Wine thereafter returned during visiting hours and was seen
with Wilson again. Wine was again told to leave. Makki testified that he did not realize until
February 28, 1994, that Wine was the woman about whom Wilson had been talking. He
testified, “[T]hat’s when I put the two together.” Makki suspected that Wilson might be the
victim of a “boundary violation” by Wine, but never confronted Wine about her relationship with
Wilson.
Hospital staff met with Wine on March 1, 1994, for the purpose of “clarify[ing] with
[Wine] the expectations for professional conduct on the unit.” Wine was instructed that,
although she could continue working, she was to have no contact with Wilson and “was not to be
on the unit other than [during] her scheduled hours and in a professional capacity only.”
Also on March 1, 1994, hospital staff was notified that Wilson had attempted to slash her
wrist with a broken light bulb. Although Wine was not present at the time of this apparent
suicide attempt, a staff member had seen another individual relaying information between Wine
and Wilson that day. Hospital staff apprised Makki of the situation. Wine was then informed
that she could no longer work on the unit.
(…continued)
but had medical staff privileges there.
2
At the time of the events in question, Wilson was married. However, Wilson was estranged
from her husband.
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Hospital staff agreed to permit Wine to work off the unit so long as she had no contact
with Wilson. However, at about that time, Wilson filed a formal complaint with Port Huron
Hosptal, asserting that the hospital was wrongly denying her visitors. After this complaint was
filed, Makki decided that Wine should be allowed to visit Wilson during normal visiting hours
for “therapeutic” reasons. Makki believed that it would be better to keep Wilson in the hospital
and to permit Wine to visit, than to fully prevent Wine’s visits and run the risk that Wilson
would leave the facility against medical advice.
On March 4, 1994, Wine told a hospital employee that she was experiencing thoughts of
suicide. Wine was told not to come in to work due to her “emotional instability.” Nonetheless,
Wine came back to the hospital on about March 5, 1994, and told a hospital employee that she
was not sleeping or eating, had gotten a gun permit, and had bought some rope. Hospital staff
called Wine’s mother, and Wine was seen “weeping and out of control.” Wine’s family arrived
at the hospital and took her to a private treatment facility where she, herself, was hospitalized.
Makki left for vacation on about March 7, 1994. Wine was discharged from
hospitalization on about March 9, 1994. Wilson was then discharged from Port Huron Hospital
on March 14, 1994, before Makki returned from vacation. Although it is not entirely clear from
the record, Wilson was apparently discharged into the custody of Wine. Makki admitted that
when he returned from his vacation, he did not attempt to call or otherwise contact Wilson.
Wilson’s childhood friend testified that she saw Wilson on March 17, 2004. At that time,
Wilson told her friend that “she had decided that she was going to break off her relationship with
Susan [Wine],” and that she “had intentions of getting back together with her husband.” The
record contains little or no information concerning Wilson’s activities over the course of the next
ten days. On March 27, 1994, Wilson and Wine committed suicide together at Wine’s home.
II. Procedural History
In March 1996, plaintiff filed a complaint against Makki, Port Huron Hospital, and the
Estate of Susan Wine in St. Clair Circuit Court. The action was assigned Case No. 96-001094NH. Among other things, the original complaint in Case No. 96-001094-NH alleged claims of
“Professional Negligence” against Port Huron Hospital and Makki, a claim of “Ordinary
Negligence” against Port Huron Hospital, a claim of “Professional Negligence” against the
Estate of Susan Wine, and various intentional tort claims against the Estate of Susan Wine.
In August 1996, the trial court determined that the complaint sounded in medical
malpractice. Because plaintiff had not filed a notice of intent and an affidavit of merit, the trial
court dismissed the action.
Plaintiff appealed the dismissal. In addition to filing a claim of appeal with this Court,
plaintiff also re-filed the same complaint that had been dismissed. The new action was assigned
Case No. 96-003351-NH. Plaintiff filed an affidavit of merit with the new complaint, signed by
board-certified psychiatrist Richard Feldstein, M.D. Plaintiff also named Blue Water Mental
Health Clinic as an additional defendant in the re-filed action. Otherwise, the allegations in Case
No. 96-003351-NH were essentially identical to those in Case No. 96-001094-NH.
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On May 15, 1998, this Court affirmed the dismissal of Case No. 96-001094-NH.
Ferguson v Port Huron Hospital, unpublished memorandum decision of the Court of Appeals,
issued May 15, 1998 (Docket No. 197784). This Court ruled that plaintiff’s claims in Case No.
96-001094-NH had sounded in medical malpractice: “We reject the assertion that plaintiff’s
complaint alleges ordinary negligence and, to that extent, is not subject to MCL 600.2912b . . . .
Regardless of the form, the claim is one of malpractice.” Id., slip op at 1. Because plaintiff had
not properly filed a notice of intent in Case No. 96-001094-NH, this Court concluded that the
entire complaint had been properly dismissed. Id.
Case No. 96-003351-NH then proceeded. The claims against the Estate of Susan Wine
and Blue Water Mental Health Clinic were eventually dismissed by stipulation of the parties.
After substantial discovery and several pretrial motions, trial began in February 2005. Feldstein
testified that he believed Makki had breached the applicable standard of care in several ways.
Defense counsel objected to Feldstein’s testimony on the ground that it differed from that given
by Feldstein in his pretrial deposition. The trial court ruled that Feldstein could only testify
regarding those alleged instances of malpractice that he had identified in his pretrial deposition.
Feldstein did not testify regarding any specific alleged instances of malpractice or negligence by
Port Huron Hospital.
Plaintiff’s counsel noted that Feldstein was her only expert witness on the element of
proximate causation—both with respect to the claims against Port Huron Hospital, and with
respect to the claims against Makki. Before Feldstein had completed his testimony, defendants
moved for a directed verdict of no cause of action, asserting that Feldstein would not be able to
establish proximate causation. The trial court granted the motion. Plaintiff’s counsel conceded
that Feldstein would not be able to establish proximate causation at trial. However, she argued
that Feldstein could not do so only because the trial court had excluded much of the testimony
that he intended to give. In an effort to establish a record, plaintiff’s counsel requested to make
an offer of proof concerning the testimony that Feldstein would have given had he received an
opportunity to do so. Plaintiff’s counsel submitted the offer of proof in writing.
III. Law of the Case
Underlying plaintiff’s theory of this case is her notion that certain claims set forth in the
complaint sound in ordinary negligence rather than in medical malpractice. In contrast,
defendants assert that all of plaintiff’s claims sound in medical malpractice, and that this issue
was already decided in a previous appeal. We review de novo whether the law of the case
doctrine applies in a given matter. Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1
(2001).
Under the law of the case doctrine, an appellate court’s decision on a particular issue
binds both the lower courts and other appellate panels in subsequent appeals of the case.
Grievance Administrator v Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000). The law of the
case doctrine applies to questions actually decided in the prior appeal and to those questions
necessary to the court’s prior determination. Kalamazoo v Dep’t of Corrections (After Remand),
229 Mich App 132, 135; 580 NW2d 475 (1998). The doctrine is applied when the prior appeal
involved the “same set of facts, the same parties, and the same question of law” as the
subsequent appeal. Manistee v Manistee Fire Fighters Ass’n, 174 Mich App 118, 125; 435
NW2d 778 (1989).
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This Court determined in Ferguson, supra (Docket No. 197784), that because plaintiff’s
claims in Case No. 96-001094-NH sounded in medical malpractice, plaintiff was required to file
a notice of intent and affidavit of merit in that case. After classifying the nature of plaintiff’s
case as a “medical malpractice action,” the Ferguson panel specifically stated, “We reject the
assertion that plaintiff’s complaint alleges ordinary negligence and, to that extent, is not subject
to MCL 600.2912b . . . . Regardless of the form, the claim is one of malpractice.”
Id., slip op at 1.
Although Case No. 96-001094-NH and the present case were numbered as two separate
and distinct actions by the St. Clair Circuit Court, the claims set forth against defendants Makki
and Port Huron Hospital in Case No. 96-001094-NH were identical to those set forth in the
present matter. Because both actions involved the same facts, the same parties, and the same
questions of law, we are required by the law of the case doctrine to follow the decision in
Ferguson, supra. Manistee, supra at 125. Because we are bound to follow the holding of
Ferguson in this case, we must conclude that all of plaintiff’s present claims sound in medical
malpractice.3
IV. Proximate Causation
Plaintiff argues that the trial court erred in finding insufficient evidence of proximate
causation and in directing a verdict of no cause of action. We disagree. We review de novo the
trial court’s decision on a motion for a directed verdict. Zantel Marketing Agency v Whitesell
Corp, 265 Mich App 559, 568; 696 NW2d 735 (2005). A directed verdict is appropriate only
when no factual question exists on which reasonable jurors could differ. Cacevic v Simplimatic
Engineering Co (On Remand), 248 Mich App 670, 679-680; 645 NW2d 287 (2001). The
appellate court reviews all the evidence presented up to the time of the directed verdict motion,
considers that evidence in a light most favorable to the nonmoving party, and determines
whether a question of fact existed. Id. at 679.
To establish a cause of action for medical malpractice, a 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.” MCL 600.2912a(2). Thus, in order to properly
support her medical malpractice claims, plaintiff was required to establish that Wilson’s suicide
was proximately caused by defendants’ breaches of the applicable standards of care. Craig v
Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).
The issue of proximate cause is generally a question of fact. Meek v Dep't of
Transportation, 240 Mich App 105, 115; 610 NW2d 250 (2000). If, however, “the facts bearing
3
Plaintiff suggests that certain of her claims sound in ordinary negligence, and that this Court’s
prior decision was thus incorrect in classifying the entire complaint as one for medical
malpractice. However, the law of the case doctrine applies “without regard to the correctness of
the prior determination, so that a conclusion that a prior appellate decision was erroneous is not
sufficient in itself to justify ignoring the law of the case doctrine.” Grace v Grace, 253 Mich
App 357, 363; 655 NW2d 595 (2002).
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upon proximate cause are not in dispute and reasonable persons could not differ about the
application of the legal concept of proximate cause to those facts,” the issue is a question of law
for the court. Paddock v Tuscola & Saginaw Bay R Co, Inc, 225 Mich App 526, 537; 571 NW2d
564 (1997).
Here, plaintiff specifically admitted that Dr. Feldstein was her only expert witness on
causation. Expert testimony is generally required in medical malpractice cases. Woodard v
Custer, 473 Mich 1, 6; 702 NW2d 522 (2005); Locke v Pachtman, 446 Mich 216, 222, 231-233;
521 NW2d 786 (1994). This Court has specifically held that expert testimony is required to
establish causation in an action for medical malpractice. Thomas v McPherson Community
Health Ctr, 155 Mich App 700, 705; 400 NW2d 629 (1986).
To establish proximate causation in a medical malpractice case, the evidence “must draw
a causal connection between the defendant’s breach of the applicable standard of care and the
plaintiff’s injuries.” Craig, supra at 90. Testimony that only establishes a correlation between
conduct and injury is not sufficient to establish cause in fact, as “[i]t is axiomatic in logic and in
science that correlation is not causation.” Id. at 93. Where the connection between the
defendant’s negligent conduct and the plaintiff’s injuries is speculative or merely a possibility,
the plaintiff cannot establish causation. Id. Further, an “expert opinion based upon only
hypothetical situations is not enough to demonstrate a legitimate causal connection between a
defect and injury.” Skinner v Square D Co, 445 Mich 153, 173; 516 NW2d 475 (1994).
“‘[T]here must be facts in evidence to support the opinion testimony of an expert.’” Id. (citation
omitted). “The evidence need not negate all other possible causes,” but the evidence of
causation “must exclude other reasonable hypotheses with a fair amount of certainty.” Id. at 166.
Turning to the case at bar, we find that plaintiff failed to establish proximate causation
with respect to her claims against both Makki and Port Huron Hospital. Feldstein did not offer
testimony on the element of proximate causation at trial. Even plaintiff admits this, having
conceded in open court that Feldstein’s testimony did not prove that Wilson’s suicide was
proximately caused by Makki’s or Port Huron Hospital’s negligence. However, plaintiff argues
that Feldstein would have been able to establish proximate causation had he been permitted to
give certain testimony before the jury. Plaintiff made an offer of proof, identifying the substance
of this testimony that Feldstein would have given.
The fundamental problem with plaintiff’s argument is that the offer of proof is itself
insufficient to support a reasonable finding of proximate cause with respect to any of the claims.
Plaintiff’s offer of proof states that, “[a]s an offer of proof, plaintiff incorporates Dr. Feldstein’s
Affidavit of Merit . . . .” The offer of proof also states that, “as plaintiff’s offer of proof in this
regard, plaintiff offers and incorporates herein, Dr. Feldstein’s entire deposition . . . .” In
addition, plaintiff’s offer of proof describes certain specific items about which Feldstein
purportedly would have testified at trial.
First, we note that any reliance on the affidavit of merit to create an issue of fact with
respect to proximate causation is misplaced. Concerning the element of proximate causation, the
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affidavit of merit stated only, “It is my professional opinion within a reasonable degree of
medical certainty that the above-described breaches of the standard of care proximately caused
Wilson’s death by suicide.”4 A conclusory affidavit that is unsupported by specific, factual
averments is not sufficient to create a genuine issue of fact for trial. Bowerman v Malloy
Lithographing, Inc, 171 Mich App 110, 115-116; 430 NW2d 742 (1988); Jubenville v West End
Cartage, Inc, 163 Mich App 199, 207; 413 NW2d 705 (1987).
Nor was Feldstein’s deposition sufficient to create a jury-submissible question of fact on
the issue of proximate causation. We have carefully reviewed Feldstein’s pretrial deposition.
Feldstein testified regarding the standards of care applicable in this case and the manner in which
he believed Makki and Port Huron Hospital had breached those standards. However, he did not
address or even mention the issue of proximate causation during the deposition, and at no time
actually linked defendants’ alleged negligence to Wilson’s eventual suicide. Therefore,
plaintiff’s reliance on Feldstein’s deposition to create a question of fact for trial concerning
proximate causation is unavailing.
Finally, even the offer of proof, itself, fails to support plaintiff’s theory of causation.
After reviewing the offer of proof, we conclude that even if Feldstein had received a full
opportunity to testify before the jury, his testimony would not been sufficient to allow a rational
trier of fact to conclude that the actions of Makki or Port Huron Hospital proximately caused
Wilson’s suicide.
In regard to the claims against Port Huron Hospital, plaintiff’s offer of proof provided the
following on the issue of proximate causation:
If [Feldstein] had been permitted to testify, he would have testified that it
was reasonably foreseeable that the boundary violation [by] Susan Wine, herself a
suicidal and homicidal, mentally unstable individual, when put in a position by
[Port Huron Hospital] to exploit a vulnerable, impulsive patient such as Tina
Wilson—would result in suicide.
***
Because of the imbalance of power in a relationship that arises as a result of a
boundary violation, suicide is predictable if your suicide counselor (in a specific
therapeutic trust relationship with you) agrees to join you. Of course it is the
answer to your . . . problems because your own counselor says so.
4
Because the affidavit of merit did not state “[t]he manner in which it alleged the breach of the
standard of practice or care was the proximate cause of the injury claimed in the notice,” MCL
600.2912b(4)(e) (emphasis added), we question whether it was even sufficient to support this
medical malpractice action in the first instance, see Roberts v Mecosta Co Gen Hosp (After
Remand), 470 Mich 679, 699-700 n 16; 684 NW2d 711 (2004).
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Plaintiff’s offer of proof also provided that if certain Port Huron Hospital records had been
admitted, they would have established in conjunction with Feldstein’s testimony that Wine was
mentally unstable, that she likely had plans to commit suicide at the time of her relationship with
Wilson, and that
[t]he hospital had placed [Susan Wine] in a position where she could seduce Tina
[Wilson]. The evidence of [Wine’s] mental state up to the deaths, when
combined with other evidence, are important links in the proximate cause chain
from the formation of the relationship . . . to the suicides as a foreseeable
consequence of the initial boundary violation.
With respect to the claims against Makki, the offer of proof merely “offer[ed] and
incorporat[ed]” Feldstein’s deposition testimony on the issue of causation. Otherwise, the offer
of proof omitted any mention of proximate causation and did not identify the manner in which
Feldstein’s trial testimony would have causally linked Makki’s actions to Wilson’s suicide.
Feldstein’s affidavit, deposition, and proffered trial testimony were all deficient on the
matter of proximate causation “because each lacked a basis in established fact.” Skinner, supra
at 174. While the evidence in this case may well have supported plaintiff’s contention that
Makki and Port Huron Hospital breached their respective standards of care, it did not causally
link Makki’s and Port Huron Hospital’s alleged negligence to Wilson’s ultimate suicide.
“Michigan law does not permit us to infer causation simply because a tragedy occurred[.]” Id.
Plaintiffs were “required to set forth specific facts that would support a reasonable inference of a
logical sequence of cause and effect.” Id. Instead, plaintiff posited a theory of proximate
causation premised on mere possibilities and not adequately supported by Feldstein’s proffered
testimony.
The proffered expert testimony and other evidence in this case was not supported by
specific, enumerated facts sufficient to tie defendant’s alleged negligence to Wilson’s ultimate
death. Of course, the jury could have hypothesized that the conduct of Makki and Port Huron
Hospital more probably than not proximately caused Wilson’s suicide. However, such a
hypothesis would not have been sufficiently based on the expert testimony and the other facts in
evidence. Although there were undoubtedly some facts to support plaintiff’s theory of causation,
“a basis in only slight evidence is not enough.” Skinner, supra at 164.
Further, we cannot omit mention of the fact that Wilson’s and Wine’s concurrent suicides
occurred on March 27, 1994—thirteen days after Wilson’s discharge from hospitalization on
March 14, 1994. Courts in other jurisdictions have held that any negligence attributable to
medical personnel and institutions is not the proximate cause of a later suicide that occurs too
remotely in time from the decedent’s discharge from hospitalization. See, e.g., Garby v George
Washington Univ Hosp, 886 A2d 510 (DC App, 2005) (holding that the plaintiff failed as a
matter of law to prove that the defendants’ negligence proximately caused the decedent’s death
when the decedent committed suicide six hours after being discharged); see also Scheidt v
Denney, 644 So2d 813 (La App, 1994) (affirming jury verdict of no cause of action when,
although the defendant doctor breached the appropriate standards of care, the breach was not
substantially related to the decedent’s suicide, which occurred after the decedent’s mental state
had apparently improved and the decedent had been discharged from hospitalization); see also
Farwell v Un, 902 F2d 282 (CA 4, 1990) (holding that even if the care rendered by the
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decedent’s doctor was negligent, the physician’s care could not have been the proximate cause of
the decedent’s suicide ten days later because the link between the care and the suicide was too
tenuous). Indeed, as the New York Court of Appeals has observed, “[T]here may be and
undoubtedly have been cases where the causal nexus becomes too tenuous to permit a jury to
‘speculate’ as to the proximate cause of the suicide. And the tenuous link is not strengthened or
made more real by however strong a verbalization of cause.” Fuller v Preis, 35 NY2d 425, 434;
322 NE2d 263; 363 NYS2d 568 (1974).
In the present case, although a friend testified that she saw Wilson on March 17, 1994,
there was little or no other evidence concerning Wilson’s activities between the date of her
discharge and the date of her death. Without sufficient evidence of Wilson’s activities during
this 13-day, post-hospitalization period, a jury would have been at best able to speculate
regarding the existence or nonexistence of intervening or superceding causes. It is not sufficient
“to submit a causation theory that, while factually supported, is, at best, just as possible as
another theory. Rather, the plaintiff must present substantial evidence from which a jury may
conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would
not have occurred.” Skinner, supra at 164-165. With precious little evidence concerning what
happened during the thirteen days following Wilson’s discharge, it would have been
presumptuous for any jury to exclude the possibility of other, more direct theories of causation in
this case. Any finding that defendants’ conduct more probably than not proximately caused
Wilson’s suicide would have amounted to impermissible speculation. ‘‘‘The law is well settled
that a case should not be submitted to the jury where a verdict must rest upon a conjecture or
guess.’” Farm Credit Services of Michigan’s Heartland, PCA v Weldon, 232 Mich App 662,
680; 591 NW2d 438 (1998), quoting Scott v Boyne City, G & A R Co, 169 Mich 265, 272; 135
NW 110 (1912).
We sympathize with plaintiff in this tragic case. It is clear from the record that Susan
Wine committed critical errors of judgment and that certain aspects of Wilson’s treatment indeed
may have been mismanaged. However, without sufficient legal proof of causation, neither
Makki nor Port Huron Hospital may be held liable for malpractice. As noted above, plaintiffs in
medical malpractice actions must establish proximate causation, Craig, supra at 86, and they
must generally do so through the use of expert witnesses, Woodard, supra at 6. Here, neither the
evidence actually introduced nor the expert testimony put forth in the offer of proof was
sufficient to allow a rational jury to conclude that defendants’ negligence more probably than not
proximately caused Wilson’s suicide. Because rational jurors could not have concluded on the
basis of the evidence in this case that defendants’ actions proximately caused Wilson’s death, the
trial court properly removed plaintiff’s claims from the jury. Cacevic, supra at 679-680. We
must affirm the directed verdict of no cause of action. Id.
In light of our resolution of this issue, we decline to consider the remaining issues raised
by plaintiff on appeal.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Jessica R. Cooper
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