ANTONIO CRAIG V OAKWOOD HOSPITAL
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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
OAKWOOD HOSPITAL, HENRY FORD
HOSPITAL, doing business as HENRY FORD
HEALTH SYSTEM, ASSOCIATED
PHYSICIANS, P.C., and ELIAS
G. GENNAOUI, M.D.,
Nos. 121405
121407-09
121419
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.
1
Specifically,
plaintiff
maintains that defendants administered an excessive amount
of a contraction-inducing medication to his mother and were
unable
to
detect
signs
of
fetal
distress
because
they
failed to make appropriate use of fetal monitoring devices.
The trial court denied defendants’ request to hold a DavisFrye hearing on expert testimony that purported to draw a
causal connection between these breaches of the standard of
care and plaintiff’s present neurological and physiological
condition.
Following
a
five
week
trial,
verdict in plaintiff=s favor.
determined
that
defendant
the
jury
returned
a
The trial court thereafter
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.
This
appeal
FACTS AND PROCEDURAL HISTORY
arises
out
of
the
plaintiff’s birth on July 16, 1980.
1
events
Plaintiff’s mother,
249 Mich App 534; 643 NW2d 580 (2002).
2
surrounding
Kimberly
Craig,
received
prenatal
Associated Physicians, P.C.
care
from
defendant
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
administration
of
medication,
Nurses
an
external
applied
Craig at approximately 9:30
had
not
experienced
for
should
the
the
fetal-uterine
A.M.,
intravenous
need
monitor
arise.
to
Ms.
at which time she still
contractions.
At
10:00,
Ms.
Craig
began to receive 1000 cc of a 5% Ringer’s lactate solution
through the “keep open”
Dr.
Gennaoui,
who
IV
line.
had
taken
2
over
for
Dr.
Kittur
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
and
her
child
had
A.M.
been
He was concerned that Ms. Craig
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
dosage.
argued,
she
had
Plaintiff’s
mistakenly
standard
of
received
care
a
double
expert,
Paul
Gatewood, M.D., testified that Ms. Craig’s medical records
reveal
that
Pitocin.
she
was
inadvertently
on
according
two
doses
of
The first was administered shortly after 11:00
a.m. upon Dr. Gennaoui’s order.
check
given
Dr.
Gennaoui’s
to
Dr.
order
Gatewood,
Nurse Quinlan wrote a
for
that
Pitocin
she
had
to
indicate,
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
intravenously.
testimony,
Ms.
Craig
Thus,
Dr.
was
already
according
a
Dr.
Gatewood’s
to
had
Gennaoui
receiving
given
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
after
any
complications.
plaintiff’s
experiencing
receiving
birth
contractions
Pitocin
and
Medical
show
of
that
records
Ms.
“moderate”
that
compiled
Craig
began
strength
after
“moderate”
contractions
continued until plaintiff’s delivery.
Plaintiff contends, however, that the records from a
fetal
uterine
records,
monitor
according
to
tell
Dr.
a
different
Gatewood,
show
story.
that
These
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
contractions
Plaintiff’s
of
administered
excessive
umbilical
cord
to
Ms.
intensity
became
Craig
and
compressed
caused
duration.
because
of
these contractions, thereby decreasing the amount of blood
flowing
to
plaintiff.
decelerations
in
heart
The
result
rate
shown
was
by
the
the
pattern
fetal
of
uterine
monitor and a decrease in the amount of oxygen flowing to
plaintiff’s brain, or “hypoxia” in medical parlance.
P .M .
Plaintiff was born shortly before 7:00
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
infant
who
taken
had
shortly
after
recently
his
suffered
birth
depicts
head
an
trauma.
Specifically, plaintiff points to a “large ridge” across
his forehead as evidence of “facial or brow molding,” and
argues
that
the
photograph
clearly
7
reveals
bruising
and
An Apgar score represents an evaluation of a newborn
infant=s physical condition immediately after birth. An
infant is evaluated at one and five minutes after birth on
five criteria: heart rate, respiratory effort, muscle tone,
skin color, and response to stimuli.
Each criterion is
assigned a value between zero and two, with a score of ten
indicating the best condition. Attorney=s Dictionary of
Medicine Illustrated, vol 1, p A-475.
6
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
plaintiff
Dr.
Carolyn
seemed
to
cognitive functions.
be
Johnson,
healthy
who
and
concluded
displayed
that
normal
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.
Nigro
diagnosed
encephalopathy9
spasticity.
throughout
plaintiff
with
He
this
global
concluded
trial
with
nonprogressive
developmental
delay
at
and
that
the
the
Dr.
time
etiology
or
and
mild
maintained
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
through his mother, Kimberly Craig, as next friend.
alleged
that
malpractice
Drs.
in
Gennaoui
failing
to
and
Kittur
monitor
committed
plaintiff’s
with an internal uterine catheter until 2:30
16, 1980.
1994
He
medical
heartbeat
P .M .
on July
Further, he alleged that Dr. Gennaoui and his
colleagues negligently administered Pitocin to Ms. Craig
despite
the
indicating
harmful.
fact
that
As
that
Pitocin
a
she
presented
was
unnecessary
result,
plaintiff
physical
and
symptoms
potentially
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,
conduct a Davis-Frye hearing.12
Henry
Ford
filed
a
in
the
alternative,
to
This motion was denied.
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
value of the $36 million awarded by the jury.
court
denied
defendants’
motion
for
the
present
The trial
judgment
notwithstanding the verdict or a new trial.
On February 1, 2002, the Court of Appeals affirmed the
jury verdict in plaintiff’s favor, but ordered remittitur
because of the jury’s overestimation of plaintiff’s lost
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
liability theory.”14
Hospital
liable
on
a
successor
We denied plaintiff’s application for
leave to appeal the decision of the Court of Appeals.
II.
STANDARD OF REVIEW
We review a trial court’s decision to admit or exclude
evidence for an abuse of discretion.15
abuses
its
discretion
when
it
A court necessarily
“admits
inadmissible as a matter of law.”16
evidence
that
is
However, any error in
the admission or exclusion of evidence will not warrant
appellate
relief
“unless
refusal
to
take
this
13
249 Mich App 534, 544.
14
action
469 Mich 880 (2003) (citations omitted).
15
People
v
Katt,
468
Mich
(2003).
16
Id.
10
272,
278;
662
NW2d
12
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
alternative, to hold a Davis-Frye hearing.
or,
in
the
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
application
of
that
govern
statutes.’”24
the
When
construction
and
language
an
the
of
evidentiary rule is unambiguous, we apply the plain meaning
of
the
text
“’without
further
24
judicial
construction
or
CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich
549,
554;
640
NW2d
256
(2002),
quoting
Grievance
Administrator v Underwood, 462 Mich 188, 193; 612 NW2d 116
(2000).
12
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
qualified
by
testimony.27
virtue
of
training, or education.”28
Generally,
“knowledge,
the
expert
skill,
may
be
experience,
In a medical malpractice action
such as this one, the court’s assessment of an expert’s
“qualifications” are now guided by MCL 600.2169(2):
In determining the qualifications of an
expert witness in an action alleging medical
malpractice, the court shall, at a minimum,
evaluate all of the following:
(a)
The
educational
and
training of the expert witness.
professional
(b) The area of specialization of the expert
witness.
(c) The length of time the expert witness
has been engaged in the active clinical practice
or instruction of the health profession or the
specialty.
(d) The relevancy of the expert witness’s
testimony.
Second, the proposed testimony must “assist the trier
25
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
“recognized”
testimony
form
of
must
have
“scientific,
specialized knowledge.”31
been
based
technical,
or
on
a
other
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
testimony
was
requirements
articulated
of
in
case
was
subject
MRE
People
tried,
not
702,
v
the
only
but
opinion
based
on
Davis,35
novel
to
also
now
Michigan as the Davis-Frye test.36
expert
admission
of
the
to
expert
threshold
the
generally
standard
known
in
In Davis, we held that
scientific
techniques
is
admissible only if the underlying methodology is generally
32
223 Mich App 485, 491; 566
(citations and quotation marks omitted).
33
NW2d
671
(1997)
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
determining
the
whether
community.37
scientific
the
proposed
expert
Thus,
in
opinion
was
grounded in a “recognized” field of scientific, technical,
or other specialized knowledge as was required by MRE 702,
a
trial
opinion
court
was
was
based
obligated
on
to
ensure
accurate
and
that
the
generally
expert
accepted
methodologies.38
The proponent of expert testimony bears
the
proving
burden
of
general
acceptance
under
this
PERFORM
ITS
standard.39
B. THE RIAL COURT’S FAILURE TO
T
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
permanent
mother’s
brain
pelvic
damage.
anatomy,
This
thereby
theory,
producing
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.
connection
through
between
repeated
That is, none supported a causal
Pitocin
pounding
and
of
brain
the
injury
fetal
incurred
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.
proffered
scientific
Instead
and
of
medical
consulting
literature,
plaintiff’s
the
court
erroneously assigned the burden of proof under Davis-Frye
to
defendant—the
Gabriel’s
party
testimony—and
opposing
held
the
that
admission
defendant
of
Dr.
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 DavisFrye hearing.
This abuse of discretion was predicated on
two fundamental legal errors.
First, the trial court erred in concluding that it had
no
obligation
testimony
unless
to
review
defendant
plaintiff’s
introduced
expert testimony was “novel.”
proposed
evidence
expert
that
the
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.
irrespective
of
the
These
type
offered by the parties.41
of
obligations
expert
applied
opinion
testimony
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
cerebral palsy.
resulting
head
trauma
caused
plaintiff’s
This causal sequence, defendant argued,
has “never been described in medical literature” and was at
odds
with
41
the
testimony
of
See MRE 702.
19
plaintiff’s
other
expert
witnesses.
Plaintiff failed to introduce a single authority that
truly
supported
Dr.
defendant’s motion.
that
medical
that
could
did
not
theory
in
response
to
Instead, plaintiff repeatedly stressed
literature
Pitocin
defendant
Gabriel’s
amply
cause
brain
contest—and
literature to that effect.
supported
the
damage—a
supplied
the
proposition
proposition
court
with
But this literature had little
to do with Dr. Gabriel’s causal theory and therefore did
not counter the proposition that his expert opinion was
based on novel science.
Therefore,
justified
in
a
light
Davis-Frye
of
the
hearing
information
was
more
than
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
offered
in
of
evidence.
support
Indeed,
of
Dr.
the
Gabriel
evidence
should
plaintiff
have
provided
sufficient notice to the trial court that his theory lacked
general
thing,
acceptance
Dr.
Gabriel
in
the
was
medical
unable
to
community.
cite
a
For
single
one
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
expertise.
anything
anatomy
This
but
that
failure
his
own
indicates
that
such
to
testimony
root
his
hypothetical
Dr.
was
beyond
causal
depiction
Gabriel’s
theory
of
testimony
his
in
female
may
have
been too speculative under MRE 702 to assist the trier of
fact.
Finally,
a
Davis-Frye/MRE
702
hearing
should
alerted the court to the error described in part IV.
have
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
would draw from it.
22
plaintiff
hoped
the
jury
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.
therefore
reverse
and
remand
for
entry
of
We
judgment
notwithstanding the verdict.
A. STATUTORY AND COMMON LAW BACKGROUND
In order to establish a cause of action for medical
malpractice, a plaintiff must establish four elements: (1)
the appropriate standard of care governing the defendant’s
43
MCR 2.613(A).
23
conduct at the time of the purported negligence, (2) that
the defendant breached that standard of care, (3) that the
plaintiff
injuries
was
were
injured,
the
and
proximate
(4)
that
result
of
the
plaintiff’s
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
44
We defined these elements in Skinner v Square D
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,
defendant’s
negligence
plaintiff’s
injuries
a
court
was
a
must
cause
before
it
can
find
in
hold
the
of
the
that
fact
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
need
not
catalyst
prove
for
that
his
an
act
injuries,
or
he
While a plaintiff
omission
must
was
introduce
the
sole
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
defendant
may
have
requires
more
burden
than
explanation.51
caused
a
by
his
mere
showing
only
injuries.
possibility
Our
or
a
that
the
case
law
plausible
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
defendant had malfunctioned.55
switch
manufactured
by
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
the
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,
disconnected from its power source.59
despite
being
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
court
had
56
Id.
60
concluded
summary
Id.
59
granted
Id.
58
properly
we
Id.
57
Consequently,
Id.
27
that
the
disposition
trial
to
the
defendant.
Mulholland v DEC Int’l,61
counterpoint to Skinner.
herd
of
milking
cows
provides a useful factual
In Mulholland, the plaintiffs’
contracted
mastitis,
a
bacterial
infection of the udder, after the plaintiffs began to use a
milking
system
testimony
was
built
by
provided
defendants.62
the
by
Sidney
agriculture and dairy science.
milking
at
the
plaintiffs’
Beale,
Key
an
expert
expert
in
Mr. Beale had observed a
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
61
432 Mich 395; 443 NW2d 340 (1989).
62
Id. at 399.
63
Id. at 400.
64
Id.
65
Id. at 398.
28
in
the
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
contractions.
plaintiff
the
periods
of
oxygenation
between
Dr. Gatewood testified that, as a result,
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
compensation.
injuries
Indeed,
requisite
expertise
expressly
refused
to
Dr.
to
for
which
Gatewood
make
testify
the
to
plaintiff
denied
causal
a
causal
he
sought
had
the
linkage
and
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.”
plaintiff
According
sustained
to
“traumatic”
Dr.
Gabriel’s
injuries
when
testimony,
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
resulted
brain
in
“arter[ial]
sustained
elevated
blood
compression
venous
flow.”
injuries,
“pressures”
Dr.
Gabriel
and
which
impeded
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.
asymmetric
He
development
failed,
either
however,
back
to
to
the
trace
this
traumatic
and
vascular mechanisms he described or forward to the specific
32
neurological conditions presently displayed by plaintiff.
Thus,
how
cerebral
exactly
palsy
the
(as
mechanisms
opposed
to
he
any
described
other
led
to
neurological
impairment) and how they were connected to the asymmetric
brain
development
depicted
in
plaintiff’s
MRI
was
never
science
that
explained.69
It
is
axiomatic
in
logic
and
in
correlation is not causation.70
This adage counsels that it
is error to infer that
B
and
B
occur together.
causation
supplied
causes
A
from the mere fact that
A
Given the absence of testimony on
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
between
the
defendant’s
Where the connection
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
denying
erred
motion for
Appeals
as
JNOV.
and
a
matter
of
law
in
defendants’
We reverse the judgment of the Court of
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
Ford)73
(Henry
was
liable
as
Associated Physicians, P.C.
that
the
trial
court
a
corporate
successor
to
To the contrary, we conclude
erroneously
imposed
successor
liability on Henry Ford.
At
the
defendant
time
Drs.
Associated
of
the
Kittur
alleged
and
Physicians,
malpractice
Gennaoui
P.C.,
which
were
in
1980,
employees
was
a
of
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
bookkeeping services.
take
over
its
administrative
and
While Henry Ford was interested in
pursuing this arrangement with Associated Physicians, the
latter’s
corporate
professional
form
corporation,
posed
an
Associated
obstacle.
Physicians,
As
a
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
MCL
See generally Professional Services Corporation Act,
450.221 et seq.
The shares of a professional
35
Consequently, Associated Physicians, P.C., split into
two entities.
Associated
Physicians
corporation
ownership
Its administrative portion was incorporated
in
and
which
Medical
Center,
nonphysicians
control.
Its
Inc.,
could
medical
a
business
legally
practice,
share
however,
became APMC, P.C., a new professional corporation.
Henry
Physicans
Ford
purchased
Medical
Center,
all
the
Inc.,
Business Corporation Act.76
shares
in
of
accordance
Associated
with
the
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
Medical
Center,
agreement
Inc.,
in
with
which
Associated
the
latter
Physicians
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.
plaintiff),
the
(which
equitable
was
vicariously
concerns
that
liable
justify
to
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.
Appeals agreed.
The Court of
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
predecessor and successor corporations.”80
between
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,
the
however,
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,
faith, or lacking in consideration.
has
adduced
no
evidence
that
in
bad
Likewise, plaintiff
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
occurred.
not
A
de
demonstrated
that
facto
exists
merger
a
de
facto
when
each
merger
of
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
the
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.
professional
corporation—Associated
practice—became APMC, Inc.
Physicians’
The
medical
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
Physicians,
liable
P.C.,
is
as
that
a
successor
which
to
continued
Associated
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.
Turner/Foster
important,
the
requirements
policies
not
that
met
justify
Not only are the
here
the
but,
imposition
successor liability are noticeably inapplicable here.
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
more
of
We
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
qualifications
plaintiff=s
evidentiary
and
expert
theories
hearing
propounded
witnesses.
Finally,
regarding
by
one
of
the
trial
the
the
court
erred in concluding that Henry Ford Health Care Corporation
was
a
corporate
successor
to
42
the
professional
medical
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
successor liability, I concur in the result only.
Michael F. Cavanagh
to
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.
_______________________________
KELLY, J. (concurring in part and dissenting in part).
I dissent from the majority's decision that the trial
court
abused
hearing.
I
its
also
discretion
disagree
in
that
denying
there
Davis-Frye1
a
was
insufficient
evidence of causation.
I agree with the conclusion that
Henry
not
Ford
successor
1
Hospital
liability.
is
liable
Therefore,
under
with
the
theory
of
respect
to
the
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
scientific community.
it
was
not
recognized
in
the
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
compression is averted.
2
with
it
so
that
head
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
describing
offered
the
nothing
Desk
Reference
effects
in
of
and
labor
response.
quoted
on
a
it
set
Had
a
textbook
fetus.
Defendant
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
removes
from
to
the
a
Davis-Frye
trial
court
hearing.
the
This
discretion
effectively
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
community.
3
in
the
scientific
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
resulted from the administration of excessive Pitocin.
court heard oral argument on the motion.
the
expert
defendant
testimony
referred
that
to
it
Dr.
believed
The
In focusing on
was
Gabriel's
it
inadmissible,
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, 11401141 (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
determined
the
by
admissibility
the
court
.
of
.
evidence
.
.
In
"shall
making
be
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
acceptance,
the
issue
exists
theory's
with
regard
proponent
acceptance in the medical community.
to
must
a
theory's
prove
its
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.
that
It never provided support for counsel's proposition
Dr.
Gabriel's
traumatic
injury
recognition in the scientific community.
theory
lacked
Even given the
opportunity to provide support to the court, defendant was
either unwilling or unable to do so.
6
Hence, the trial
court did not abuse its discretion when it refused
to hold
a Davis-Frye hearing.
The Evidence of Causation
Defendants
sufficient
assert
evidence
that
that
plaintiff
his
damages
failed
were
to
present
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."
desirable, such precision is simply not mandated.
plaintiff's
evidence
is
sufficient
if
it
Although
"[T]he
'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
8
was
sufficient
for
a
jury
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
discussing
the
appear
effects
in
of
medical
reference
Pitocin.
materials
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
9
on
Dr.
Gabriel's
"pounding
and
grinding"
theory
theory that plaintiff presented.
testified
that
there
were
two
as
if
it
were
It was not.
different
the
only
Dr. Gabriel
contributors
to
plaintiff's injuries. He claimed that plaintiff suffered
from
both
a
decreased
blood
flow
and
from
a
traumatic
Paul
Gatewood
compression injury.3
In
addition
to
Dr.
Gabriel,
Dr.
testified for plaintiff regarding the standard of care. He
stated that an excessive dosage of Pitocin was given to
plaintiff's
deviation
mother.
from
the
In
his
expert
standard
of
opinion,
care.
Dr.
this
was
Gatewood
a
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.
10
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
opinion,
cerebral
the
palsy
excessive
in
animals.
Pitocin
caused
In
Dr.
the
Gabriel’s
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.
4
Both Dr. Gabriel and
When
plaintiff's
counsel
asked
whether
deviations "were the proximate causes of the
oxygen, reduced blood flow to the fet[us] here
Craig," the doctor answered "[T]hese deviations
result in the hypoxic episodes . . . all of these
contributed to the development and prolongation
interim hypoxia that this baby's brain suffered."
5
these
reduced
Antonio
are a
factors
of the
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
12
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