If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

EDIE TAYLOR,

Plaintiff-Appellant,

UNPUBLISHED

August 12, 2021

v No. 352902

Wayne Circuit Court

MCKEEN and ASSOCIATES, PC, LC No. 16-016479-NM

Defendant-Appellee.

Before: SAWYER, P.J., and BOONSTRA and RICK, JJ.

PER CURIAM.

Plaintiff appeals by right the trial court’s order granting defendant’s motion for involuntary 

dismissal. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This legal malpractice action arises out of plaintiff’s earlier, unsuccessful, medical 

malpractice action. In 2009, plaintiff underwent surgery at Mackinaw Surgery Center. In 2011, 

plaintiff retained defendant to represent her in a medical malpractice action against the nurse 

anesthetist who was responsible for her anesthesia, as well as several corporate defendants.

Ultimately, the trial court in that case granted summary disposition in favor of the defendants. The 

facts of the underlying the medical malpractice case were summarized by this Court in plaintiff’s 

appeal of that matter:

Taylor’s out-patient hemorrhoid surgery was performed on September 28, 

2009. McCarthy recounted at her deposition that her initial attempt to intubate 

Taylor failed because she was unable to fully visualize Taylor’s vocal cords. With 

assistance from the attending anesthesiologist, Dr. Craig Bonhoff[1], McCarthy 

repositioned Taylor’s head while Dr. Bonhoff applied cricoid pressure. These 

maneuvers brought Taylor’s vocal cords into better view. McCarthy then bent the 

 

1

It appears that the proper spelling is “Bohnhoff.”
-2-

endotracheal tube into a “hockey stick” configuration, which allowed her to pass it 

into Taylor’s trachea. During the surgery, McCarthy noted blood in the 

endotracheal tube. After she extubated Taylor, McCarthy observed blood in 

Taylor’s suctioned secretions.

Taylor testified that when she awoke from the anesthesia, her mouth was 

“sore and painful” and felt worse than her rectum. At home, she had difficulty 

eating and opening and closing her mouth. Taylor could see abnormal areas inside 

of her mouth she described as “scrapings.”

On October 8, 10 days after the operation, Taylor’s general surgeon 

performed a routine postsurgical checkup. Taylor told him of her mouth pain. The 

surgeon’s note states: “She did sustain some perioral lacerations. Examination of 

the oral cavity today does not reveal any large abscess. There are some small 

scrapings internally.”

On October 13, Taylor went to an emergency room complaining of jaw 

pain. The emergency room record provides: “had surgery in sept and ever since 

has had pain in mouth, states something ‘poked her mouth when she was put under’

now jaw hurts and has headache[.]” A physician’s note indicates: “in the right 

lower jaw she has a wisdom tooth that is coming and irregular. . . . I do not believe 

this problem is related to endotracheal intubation. [I] believe this is a dental 

problem.”

On October 15, Taylor visited a dentist who diagnosed her problem as a 

“canker sore,” but the next day determined that alveolar bone was exposed in an 

area near her tongue. Taylor then consulted an oral surgeon, Dr. Reynold J. 

Baumstark. Dr. Baumstark confirmed the presence of exposed bone in her right 

mandible, near a wisdom tooth. The wisdom tooth was impacted and infected, and 

Dr. Baumstark recommended its removal.

Apparently Taylor did not have the money for the extraction. On October 

21, she returned to the emergency room complaining of “severe throbbing” right 

jaw pain. A CT scan obtained that day revealed a small fracture of the tongue-side 

of the right mandible “at the region of the last molar.” Dr. Baumstark removed the 

impacted wisdom tooth. Unfortunately, Taylor required an additional operation to 

remove a retained bone fragment. She also developed an infection near the 

operative site as well as “temporomandibular joint pain.” Both conditions 

necessitated additional treatment.

Taylor’s complaint alleges that McCarthy fractured Taylor’s jaw during the 

intubation. According to Taylor’s complaint, “[a]s a consequence of [McCarthy’s] 

negligence, [Taylor] required multiple surgeries to repair the fracture and 

developed a significant infection requiring multiple hospitalizations and a 

prolonged course of intravenous antibiotics, as well as the sequelae therefrom. . . .”

An affidavit of merit signed by Charles Barton, CRNA, avers that McCarthy used 
-3-

“excessive and/or inordinate force” when intubating Taylor, “which caused a 

fracture to the patient’s mandible.”

The parties obtained depositions of most of the physicians and dentists who 

treated Taylor. Although Dr. Baumstark conceded that the exposed alveolar bone 

“could be consistent with an injury received during intubation,” he offered no 

opinion regarding the cause of Taylor’s jaw fracture. Further, he declined to state 

“within a reasonable degree of medical certainty or probability” that the intubation 

had actually caused the exposed bone. Another treating dentist agreed that a jaw 

fracture should not occur during intubation “in the absence of negligence.” The 

dentist offered no opinion regarding the cause of Taylor’s fracture, or the 

relationship of the fracture to her other jaw-related problems.

Barton testified that in his view, Taylor’s mandible fractured because 

McCarthy negligently failed to administer adequate paralytic medication before 

attempting to pass the endotracheal tube. Taylor’s unrelaxed jaw muscle worked 

as a force opposing McCarthy’s intubation efforts, Barton explained. He 

summarized: “I think the fracture occurred with the lifting of the jaw against the 

non-paralyzed masseter muscle that’s resisting it. And that’s why it snaps right at 

that level where the masseter muscle is and where the last molar is.”

Defendants moved for summary disposition pursuant to 

MCR 2.116(C)(10), contending that Barton was unqualified to provide expert 

causation testimony and that Taylor had offered no other competent evidence of 

proximate cause. According to defendants, nurses such as Barton are not permitted 

to make medical diagnoses, automatically disentitling them to testify regarding the 

cause of a patient’s disease or injury.

Taylor responded that Michigan law permits plaintiffs to establish causation 

with nonspeculative circumstantial evidence, and that in this case, the evidence 

pointed directly to the intubation as the cause of Taylor’s jaw problems. Taylor 

further invoked the res ipsa loquitor doctrine. Taylor’s brief did not address 

whether Barton was qualified to testify to proximate cause, and did not cite any of 

Barton’s testimony. During the oral argument, McCarthy’s attorney strenuously 

emphasized that Barton’s testimony “simply can’t give them causation.” Taylor’s 

counsel never addressed this argument.

In a written opinion, the trial court granted defendants’summary disposition 

motion. The court first noted, “Plaintiff concedes that she has no expert to testify 

as to causation.” The court then rejected Taylor’s argument that circumstantial 

evidence of causation sufficed, citing caselaw generally holding that expert 

testimony is necessary to establish a medical malpractice claim. Res ipsa loquitor, 

the court continued, allows a fact finder to infer negligence, but not proximate 

cause. The trial court concluded: “Leaving a jury of laypeople to speculate, in the 

absence of expert testimony, that Plaintiff’s intubation caused the injuries in 

question is simply not proper.” [Taylor v McCarthy, unpublished opinion of the 
-4-

Court of Appeals, issued February 3, 2015 (Docket No. 317766), unpub op at 1-3 

(footnote omitted).]

Plaintiff, still represented by defendant, appealed the trial court’s ruling. This Court 

affirmed, holding that plaintiff had “failed to preserve this challenge to the trial court’s ruling” by 

failing to cite before the trial court “any testimony offered by Barton in support of her proximate 

causation claim.” Id. at 4.

In 2016, plaintiff sued defendant, alleging that defendant had committed legal malpractice 

by failing to provide competent representation in the medical malpractice case, failing to know the 

law, and failing to retain a qualified expert witness to testify regarding causation. In 2019, the

case was reassigned to a new trial judge. At a November 8, 2019 hearing, plaintiff’s counsel orally

stated that plaintiff desired that the trial judge recuse himself. While indicating that he had been 

employed by defendant “sometime between 2008 and 2010,” the trial judge denied plaintiff’s 

request, stating:

I am satisfied that there is no basis for the Court to recuse itself in this, from 

this case because there’s no objective or reasonable perception given the length of 

time that I’ve been away from the lawyers, et cetera, to create any type of 

reasonable perception . . . or objective.

* * *

[T]he question is[,] is the Court, is there objective or reasonable perception 

that would require the Court to recuse itself and I can assure you that, and I hate 

saying this because it’s so obvious, I can assure you that the Court is going to be 

fair to the parties, that the parties interest and justice being accomplished is going 

to take place.

I’m not going to favor or disfavor the McKeen Law Firm because of my 

interaction with them over 9 years ago, so for all of these reasons I have to deny

your request for recusal.

The chief judge of the trial court upheld the trial judge’s denial of plaintiff’s request.

The case proceeded to a bench trial. Relevant to this appeal, plaintiff maintained that 

defendant had committed malpractice by failing to provide expert testimony to establish proximate 

cause in the underlying medical malpractice case.2 Plaintiff offered into evidence the de bene esse 

deposition testimony of Dr. Phillip Arbit, M.D., an anesthesiologist. Dr. Arbit testified that 

plaintiff’s medical records showed that “red blood suction from the posterior pharynx” was 

performed on plaintiff during her anesthesia, which means “something was scraped in the mouth, 

or it means there was some type of tissue injury in the mouth, teeth, gums, going backwards down 

the airway.” Dr. Arbit further testified that blood in the posterior pharynx could come from several 

injuries that could happen when a patient is intubated, including “if you pinch a lip,” “irritating the 

 

2 Plaintiff also argued that defendant erred by not naming Dr. Bohnhoff as a defendant.
-5-

gums,” “scraping along the inside of the gums with the laryngoscope,” “biting down on the 

tongue,” or scraping “the back of the pharynx.” According to Dr. Arbit, “[i]t’s not common to 

have blood in the back of the airway and not know where it’s coming from.” Dr. Arbit testified 

that, according to their depositions, the nurse anesthetist had informed the anesthesiologist that 

blood was noted in the patient’s pharynx and mouth. Dr. Arbit further testified regarding the postoperative procedures performed on plaintiff that “[e]verything appeared to be normal routine.”

Dr. Arbit opined that plaintiff “had an area on the back of her jaw that was . . . scraped, 

infected and then became necrotic,” and that this occurred “when there was blood in the mouth at 

the time of the laryngoscope, which is not an uncommon event.” When asked if he was speculating 

regarding whether plaintiff was scraped with the laryngoscope, Dr. Arbit responded: “Well, 

something happened in her mouth that caused it to bleed, right? It wasn’t her lips or gums because

they would have seen it and looked at it.” Dr. Arbit also referred to an article from Harvard Dental 

School documenting instances in which a laryngoscope scrape during anesthesia had led to 

infection and bone fracture. Dr. Arbit further opined that “there should have been some form of 

treatment” when the blood in the pharynx was noted, adding, “My thought process is that had they 

gotten a dentist involved and had Peridex[3] washing at that time, that it is very possible some of 

this would not have happened.”

Dr. Arbit testified that he did not necessarily consider the scrape itself to be a violation of 

the applicable standard of care, but believed that more should have been done to treat the injury 

that resulted, because “this could very easily turn into infection in her mouth that could cause the 

osteo, which is the infection in the bone, which can lead to a fracture and down a pathway similar 

to what happened to [plaintiff].” He also opined that Dr. Bohnhoff breached the applicable 

standard of care by failing to look in plaintiff’s mouth after being told there was blood in the 

airway: “He didn’t look and he didn’t treat it and he didn’t make the appropriate consultation. I 

think that falls below the standard of care.”

When asked for his opinion on proximate cause, Dr. Arbit responded:

I’m going to tell you what a reasonable person would say.

The dentist said that this could have happened bushing [sic] her teeth or chewing a 

nut. I would as a reasonable person what is more likely for her to do it [sic] biting 

on a nut and she never felt it, never knew it. Or is it more likely to happen when 

someone put a metal instrument in her mouth that scraped it and we have blood, 

and a week later she’s complaining of pain. So I think a reasonable person would 

say yes, this is a proximate cause.

At the close of plaintiff’s proofs, defendant moved for involuntary dismissal under 

MCR 2.504(B)(2). The trial court granted defendant’s motion, stating in relevant part:

Okay. Following the Defendant’s Motion for a Direct Verdict [sic] on 

[MCR] 2.504(B)(2) and in consideration of [MCR 2.517] the Court must indicate 

 

3 Peridex is an antibiotic mouthwash.
-6-

that of course in order to establish a prima facie case of legal malpractice the 

Plaintiff must of course prove that the lawyer owed a duty to provide representation 

within the applicable standard of care for an attorney, that the lawyer breached that 

duty, and that the lawyer’s breach caused an injury or harm to the client.

In the context of a legal malpractice claim against an attorney regarding the 

handling of a medical malpractice case the Plaintiff must also prove the case within 

the case.

That is[,] the Plaintiff would have to show by a preponderance of the 

evidence the professional negligence or malpractice of the physician and/or nurse 

practitioner . . .

* * *

[Model Civil Jury Instruction] 1501 [15.01] tells us the definition of 

proximate cause, it indicates, when I use the words proximate cause I mean first 

that the negligent conduct must have been a cause of the Plaintiff’s injury. And 

second that the Plaintiff’s injury must have been of a type that is a natural and 

probable result of the negligent conduct.

The law indicates further that these elements must be proven by a 

preponderance of the evidence, not by conjecture or speculation, but by a 

preponderance of the evidence.

Referring to the testimony of Dr. Arbit that has been discussed here today, 

specifically Pages 36, 36, and 38 of the trial transcript [,] Dr. Arbit indicates with 

respect to the issue of proximate causation on Line 3 they, meaning McCarthy 

and/or Bohnhoff in this case didn’t make any followup with any dentist or anybody.

* * *

Based upon the record before the Court, including the evidence that was 

admitted into evidence here during this trial[,] the Plaintiff’s proofs have failed to 

meet and establish in this case their burden, or Ms. Taylor’s burden of proof by a 

preponderance of the evidence, or stated otherwise more likely than not that the 

alleged malpractice, that the allegations of medical malpractice cited by Dr. Arbit 

were a proximate cause of Ms. Taylor’s injuries or damages.

Referring to the aforementioned record not only does Dr. Arbit fail to 

indicate his opinion with a reasonable degree of medical certainty, not only does he 

fail to state that [it is] more probable than not [that] these injuries in damages would 

have been avoided with the dental referral and Peridex washing, Dr. Arbit’s 

testimony cannot be shown to support the Plaintiff’s burden by a preponderance of 

the evidence on the necessary proximate causation.
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Similarly Dr. Arbit testifies again “Some of this would not have happened”

referring to inevitably a reasonable interpretation that some of this would have 

happened referring to the injuries and damages.

The testimony [“]some of this[”] is unclear in terms of what he’s referring 

to. Was it the fact that the mandible wouldn’t have been fractured. She would not 

have needed a PICC line. She would not have lost her impacted tooth. She would 

not have had pain. She would not have had suffering.

There is really nothing in the record that reveals to this Court what “some 

of this would not have happened,” what that means. There’s no explanation and 

there’s no explanation offered, and the Court as factfinder can only speculate as to 

what he was, he being Dr. Arbit[,] was referring to.

Having failed to meet its [sic] burden, having failed to meet its [sic] burden 

regarding the proximate causation and present evidence by a preponderance of the 

evidence the Court really has no recourse under the aforementioned court rules but 

to find that the Defendant’s Motion for a Directed Verdict [sic] must be granted.

Plaintiff subsequently moved for reconsideration, which the trial court denied. This appeal 

followed.

II. REQUEST FOR DISQUALIFICATION

Plaintiff argues that the trial judge abused his discretion by denying her request for 

disqualification, and that the chief judge erred by affirming that denial. We disagree. “When the 

Court of Appeals reviews a decision on a motion to disqualify a trial court judge, the trial court’s 

findings of fact are reviewed for an abuse of discretion, while the application of the facts to the 

relevant law is reviewed de novo.” People v Roscoe, 303 Mich App 633, 647; 846 NW2d 402

(2014) (quotation marks and citation omitted).

A trial judge is presumed to be unbiased, and the party moving for disqualification bears 

the burden of proving that the motion is justified. MCR 2.003(B); People v Dixson, 403 Mich 106, 

109; 267 NW2d 423 (1978); Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012); 

Coble v Green, 271 Mich App 382, 390; 722 NW2d 898 (2006). A judge should be disqualified

when he cannot impartially hear a case for any reason, such as when he is biased or prejudiced for 

or against a party or attorney, when he was employed by a party or lawyer in the case within the 

preceding two years, when he knows that he or a relative has an economic interest in the matter in 

controversy that could be substantially impacted by the proceeding, or when there is a serious risk 

of actual bias or the appearance of impropriety. MCR 2.003(C)(1); In re MKK, 286 Mich App 

546, 565; 781 NW2d 132 (2009); Coble, 271 Mich App at 390; Armstrong v Ypsilanti Twp, 248 

Mich App 573, 596; 640 NW2d 321 (2001). MCR 2.003(C)(1) provides in relevant part:

Disqualification of a judge is warranted for reasons that include, but are not limited 

to, the following:

(a) The judge is biased or prejudiced for or against a party or attorney,
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(b) The judge, based on objective and reasonable perceptions, has either (i) a serious 

risk of actual bias impacting the due process rights of a party as enunciated in 

Caperton v Massey, [556 US 868]; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) 

has failed to adhere to the appearance of impropriety standard set forth in Canon 2 

of the Michigan Code of Judicial Conduct.

* * *

(e) The judge was a partner of a party, attorney for a party, or a member of a law 

firm representing a party within the preceding two years.

In this case, the trial judge was employed by defendant, a party in this case, for some period 

of time between 2008 and 2010. His employment thus was not within the preceding two years of 

his involvement in this case. Accordingly, the trial judge was not even arguably required to be 

disqualified under MCR 2.003(C)(1)(e).

Plaintiff nonetheless argues that the trial judge should have been disqualified out of concern 

for the appearance of impropriety and the risk of actual bias. A judge should avoid impropriety 

and the appearance of impropriety in all activities. Michigan Code of Judicial Conduct, Canon 2; 

see also Neal v Department Of Corrections, 490 Mich 906; 804 NW2d 856 (2011). In Adair v 

Michigan, 474 Mich 1027, 1039; 709 NW2d 567 (2006), our Supreme Court set forth a test for 

determining whether there is an appearance of impropriety. Under MCR 2.003(C)(1)(b), a court 

should determine whether “the conduct would create in reasonable minds a perception that the 

judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is 

impaired.” Id. The appearance of impropriety test “must be assessed in light of what can be 

gleaned from existing court rules and canons, historical practices and expectations, and common 

sense.” Id. The standard requires an objective inquiry “made from the perspective of a reasonable 

observer who is informed of all the surrounding facts and circumstances.” Id. This Court, 

similarly, in Ireland v Smith ̧ 214 Mich App 235, 250; 542 NW2d 344 (1995), mod 451 Mich 457 

(1996), stated that “disqualification is merited if there is such a likelihood of an appearance of bias 

that the judge would be unable to balance the interest of the court with the interests of the affected 

party.” Id.

In this case, assessed in the light of the existing court rules and canons, the fact of the trial 

judge’s previous employment with defendant would not have created a perception that the judge’s 

ability to carry out his responsibilities with integrity, impartiality, and competence was impaired. 

Adair, 474 Mich at 1039. The “reasonable observer who is informed of all the surrounding facts 

and circumstances” would be aware of the two-year time period in MCR 2.003(C)(1)(e), and 

would be aware that the trial judge’s employment with defendant fell well outside that time period. 

Id. In fact, by holding otherwise, we would essentially render MCR 2.003(C)(1)(e) nugatory—in 

other words, because any previous employment with a party would be sufficient to raise the 

appearance of impropriety and thus require disqualification, the two-year period in 

MCR 2.003(C)(1)(e) would be meaningless. We decline to adopt such an interpretation of the 

court rule. See Casa Bella Landscaping, LLC v Lee, 315 Mich App 506, 510; 890 NW2d 875 

(2016) (“Court rules, like statutes, must be read to give every word effect and to avoid an 

interpretation that would render any part of the [court rule] surplusage or nugatory”) (quotation 

marks and citation omitted).
-9-

Plaintiff has not shown that anything beyond the bare fact of the trial judge’s previous 

employment with defendant raised the appearance of impropriety. Plaintiff argues that the trial 

judge’s “insistence” on hearing the case was out-of-the-ordinary and demonstrated the risk of an 

appearance of impropriety. We disagree. The record is devoid of evidence that the trial judge in 

any way “insisted” on hearing this case, apart from the mere fact that he denied plaintiff’s request 

for disqualification. Plaintiff does not explain how the trial judge had any interest one way or 

another in the outcome of the case. Plaintiff’s assertion that the trial judge was “placed in a very 

uncomfortable position when he was assigned to be the trier of fact in this case against McKeen & 

Associates” is similarly unexplained.4

Plaintiff also has not supported her contention that the trial judge had a “personal 

relationship” with defendant. For the reasons noted, the mere fact of a judge’s prior employment

with a firm nearly a decade prior does not establish a disqualifying personal relationship with that 

firm. We conclude that the circumstances of this case do not give rise to an appearance of 

impropriety requiring the trial judge’s disqualification.

Nor has plaintiff demonstrated actual bias or the serious risk of actual bias. See 

MCR 2.003(C)(1)(a), (b). See Cain v Dep’t of Corrections, 451 Mich 470, 495 (1996). “[T]he 

party who challenges a judge on the basis of bias or prejudice must overcome a heavy presumption 

of judicial impartiality.” Id. at 497. Neither the trial judge’s previous employment with defendant,

nor his denial of plaintiff’s request for recusal, nor his ultimate decision in favor of defendant 

demonstrate actual bias. Judicial rulings, even if unfavorable to a party, do not demonstrate bias 

or prejudice unless they “display a deep-seated favoritism or antagonism that would make fair 

judgment impossible.” Id. at 496, quoting Liteky v United States, 510 US 540, 555; 114 S. Ct. 

1147; 127 L Ed 2d 474 (1994).

Plaintiff also argues that, notwithstanding the court rule, the trial judge’s denial of her 

request for recusal was a violation of her right to due process, citing Crampton v Dep’t of State, 

395 Mich 347, 351; 235 NW2d 352 (1975). The Due Process Clause of the United States 

Constitution “requires an unbiased and impartial decisionmaker.” Cain, 451 Mich at 497. 

“[W]here the requirement of showing actual bias or prejudice under [the court rule] has not been 

met, or where the court rule is otherwise inapplicable, parties have pursued disqualification on the 

basis of the due process impartiality requirement.” Id. Although Crampton is “the leading 

Michigan case addressing the constitutional basis for disqualification,” plaintiff has failed to 

properly apply Crampton to the facts of this case. Our Supreme Court held in Crampton that a

showing of actual bias is not necessary when “experience teaches that the probability of actual bias 

. . . is too high to be constitutionally tolerable.” Crampton, 395 Mich at 351. Certain situations 

have been identified as posing such a risk, such as “where the judge or decisionmaker (1) has a 

pecuniary interest in the outcome; (2) has been the target of personal abuse or criticism from the 

party before him; (3) is enmeshed in [other] matters involving petitioner . . .; or (4) might have 

 

4 For the same reasons, to the extent plaintiff argues that the trial judge’s “insistence” on hearing 

the case demonstrates actual bias or a serious risk of actual bias, that argument is meritless. See 

MCR 2.003(C)(1)(a), (b); see also Cain v Dep’t of Corrections, 451 Mich 470, 495 (1996).
-10-

prejudged the case because of prior participation as an accuser, investigator, fact finder or initial 

decisionmaker.” Crampton, 395 Mich. at 351 (quotation marks and citations omitted).

None of the circumstances identified in Crampton is present here. Although plaintiff 

implies that the trial judge in this case has some pecuniary interest in the outcome of this trial, the 

record does not support such a finding. Regardless of whether the trial judge and defendant may 

have once “made a lot of money for one another,” plaintiff does not explain how the trial judge

would stand to gain from a victory by defendant in this case. The trial judge’s brief employment 

with defendant ended approximately ten years ago. Plaintiff has not presented any evidence that 

the trial judge had any ongoing interest in the firm’s success or financial well-being.

Further, there is no evidence to suggest that the trial judge has been the target of personal 

abuse or criticism from either party. Crampton, 395 Mich at 351. And there is no evidence to 

suggest that the trial judge was “enmeshed” in other matters involving either party, and certainly 

not since his employment there ten years prior. Id. Finally, the trial judge had no prior 

participation in this case, either as an employee of defendant or otherwise. Id.

On the whole, we conclude that, because the trial judge satisfied the requirements set forth 

in MCR 2.003 and the Code of Judicial Conduct, and plaintiff has not established that the trial 

judge’s participation in this matter would result in either actual (or a constitutionally intolerable 

risk of) bias or an appearance of impropriety, the trial judge’s denial of plaintiff’s recusal request 

did not constitute an abuse of discretion. Roscoe, 303 Mich App at 647.

III. MOTION FOR INVOLUNTARY DISMISSAL

Plaintiff further argues that the trial court erred by granting defendant’s motion for 

involuntary dismissal on the ground that Dr. Arbit’s testimony had not established proximate 

cause. We disagree. In considering a motion for involuntary dismissal under MCR 2.504(B)(2) 

after a bench trial, we review de novo issues of law, and review for clear error the trial court’s 

findings of fact. Sands Appliance Services, Inc v Wilson, 463 Mich 231, 235-236 n 2, 238; 615 

NW2d 241 (2000). A motion for involuntary dismissal should be granted if, after the presentation 

of the plaintiff’s evidence, the trial court determines that “on the facts and the law, the plaintiff has 

no right to relief.” MCR 2.504(B)(2).

The elements of a legal malpractice claim are: “(1) the existence of an attorney-client 

relationship; (2) negligence in the legal representation of the plaintiff; (3) that the negligence was 

the proximate cause of an injury; and (4) the fact and extent of the injury alleged.” Charles 

Reinhart Co v Winiemko, 444 Mich 579, 586; 513 NW2d 773 (1994) (citation omitted). Regarding 

proximate cause, “a plaintiff in a legal malpractice action must establish that the defendant’s action 

was a cause in fact of the claimed injury.” Id. In other words, a plaintiff pursuing a legal 

malpractice claim “is faced with the difficult task of proving two cases within a single proceeding.” 

Id. (citation omitted). “To hold otherwise would permit a jury to find a defendant liable on the 

basis of speculation and conjecture.” Id.

The elements of a medical malpractice claim are “(1) the appropriate standard of care 

governing the defendant’s conduct at the time of the purported negligence, (2) that the defendant 

breached that standard of care, (3) that the plaintiff was injured, and (4) that the plaintiff’s injuries 
-11-

were the proximate result of the defendant’s breach of the applicable standard of care.” Craig v 

Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004). The element of proximate cause 

encompasses both cause-in-fact (“but for” cause) and legal cause. Id. Proximate cause must be 

proven by a “more probable than not” standard; however, a plaintiff need not prove that the 

defendant’s negligence was the sole cause of his or her injuries. Id. at 87. In a medical malpractice 

case, “[e]xpert testimony is essential to establish a causal link between the alleged negligence and 

the alleged injury.” Pennington v Longabaugh, 271 Mich App 101, 104 (2006). This testimony 

must draw “a causal connection between the defendant’s breach of the applicable standard of care 

and the plaintiff’s injuries.” Craig, 471 Mich at 90. An “expert opinion based upon only 

hypothetical situations is not enough to demonstrate a legitimate causal connection between a 

defect and an injury.” Skinner, 445 Mich at 173. A plaintiff must establish causation by setting 

forth “specific facts that would support a reasonable inference of a logical sequence of cause and 

effect.” Id. at 174. When the connection between the defendant’s conduct and the plaintiff’s 

injuries is entirely speculative or merely a possibility, plaintiff cannot establish proximate cause. 

Craig, 471 Mich at 93.

The record shows that Dr. Arbit’s proximate cause opinion was based upon multiple layers 

of assumption and speculation. Dr. Arbit first assumed that the injury to plaintiff’s mouth was 

caused by her pharynx being scraped by the laryngoscope because “something happened in her 

mouth that caused it to bleed” and he believed that the medical providers “would have seen” if the 

blood was from her lips or gums. He admitted that there were several ways that a few drops of 

blood could be found in the airway and that no particular injury to plaintiff’s mouth or throat was 

recorded that day. He also admitted that “[t]he dentist said that this could have happened 

b[r]ushing her teeth or chewing a nut,” but asked “what is more likely for her to do it biting on a 

nut, and she never felt it, never knew it. Or is it more likely to happen when someone put a metal 

instrument in her mouth that scraped it and we have blood, and a week later she’s complaining of 

pain [?].” Dr. Arbit essentially conjectured that plaintiff’s injury was caused by a laryngoscope 

scrape, based on little more than his “common sense” belief that it was “most likely.” See Skinner, 

445 Mich at 174.

Having speculated as to the cause of the injury, Dr. Arbit then further speculated that, had 

the defendants in the medical malpractice action noticed the injury, and immediately treated it with 

a dental consultation and antibiotic mouthwash, “it is very possible some of this would not have 

happened.” The trial court correctly noted that this statement was speculative and imprecise, and 

that a mere possibility did not suffice to establish proximate cause. Craig, 471 Mich at 93. 

Although plaintiff argues that the trial court ignored other statements from Dr. Arbit that supported 

his opinion, the portion of Dr. Arbit’s deposition cited by plaintiff does not support that argument. 

Dr. Arbit described the course of plaintiff’s injury and treatment in the weeks following her 

surgery. When he finished, plaintiff’s counsel asked him “Does this make sense that this related 

to scraping her gum, inserting the tube?,” to which Dr. Arbit answered, “Yes. Hundred percent.” 

Plaintiff’s counsel then asked if Dr. Arbit felt “that’s what happened here?.” to which Dr. Arbit 

again responded, “Yes.” These statements amount to little more than restatements of Dr. Arbit’s 

opinion; they did not alter the opinion’s essentially speculative nature. Skinner, 445 Mich at 174.

We conclude that the trial court did not err by granting defendant’s motion for involuntary 

dismissal. Sands, 463 Mich at 235-236 n 2, 238. Having failed to establish proximate causation 

through expert testimony, Pennington, 271 Mich App at 104, plaintiff could not prove that, but for 
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defendant’s allegedly negligent representation, she would have prevailed in the underlying medical 

malpractice case, Charles Reinhart Co, 444 Mich at 586.

Affirmed.

//s/ David H. Sawyer

/s/ Mark T. Boonstra

/s/ Michelle M. Rick