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STATE OF MICHIGAN 

COURT OF APPEALS 

TERRY TUCK, Guardian of MICHAEL D. 

TUCK, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 16, 2017 

v No. 330784 

Oakland Circuit Court 

WIXOM SMOKERS SHOP, SALAM PETRO, 

LEO BRIKHO, and LEO AND SAM, INC., 

LC No. 2014-139444-NO 

 Defendants-Appellants, 

and 

JOHN DOE DISTRIBUTORS and JOHN DOE 

MANUFACTURERS, 

 Defendants. 

Before: RIORDAN, P.J., and METER and FORT HOOD, JJ. 

PER CURIAM. 

 Defendants-appellants, Wixom Smokers Shop, Salam Petro, Leo Brikho, and Leo and 

Sam, Inc. (“defendants”), appeal by leave granted from the trial court’s order denying their 

motion for summary disposition under MCR 2.116(C)(10) in this product-liability action brought 

by plaintiff Terry Tuck as guardian of his son Michael D. Tuck. We reverse and remand for 

entry of summary disposition in favor of defendants. 

 Plaintiff alleges that Michael started acting erratically, experienced hallucinations, and 

displayed severe episodes of paranoia after ingesting a product known as “spice” or “K2,” also 

known as synthetic marijuana, on June 3, 2011. Within days of using the substance, Michael 

threatened to shoot a mail carrier and a newspaper-delivery person for coming to the home. 

Approximately five days after ingesting the spice, Michael burned down the family home. 

Criminal charges against him were resolved by a plea of not guilty by reason of insanity. 

 Plaintiff filed this product-liability action against defendants, as the alleged sellers of the 

product that caused Michael’s mental injury and breakdown. Michael was never deposed, 

apparently because of continuing physical and mental health issues. Instead, plaintiff relied on 
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Michael’s friend, Jared Alcorn, to establish defendants’ identity as the sellers of the product that 

caused Michael’s injury. Alcorn testified that on June 3, 2011, he and Michael drove to 

defendants’ business establishment to purchase spice. However, Alcorn did not accompany 

Michael into the store and did not know what specific product Michael purchased. Alcorn 

admitted that Michael sometimes purchased spice from other locations. 

 After leaving defendants’ store, Alcorn and Michael went to the home of another friend, 

Brian Lowe, to ride dirt bikes. During the evening, Michael and several others who were there 

consumed the spice that Michael brought, and another person also supplied some spice that was 

shared with the group. Alcorn did not know where that other person purchased the spice that he 

brought. According to Alcorn, the group smoked between seven and nine blunts of spice, but 

Alcorn denied being part of that group. Alcorn knew that Michael used other drugs, including 

Vicodin and Xanax, as well as alcohol. Alcorn did not think Michael consumed any alcohol that 

evening, but did not know if Michael consumed any other drugs besides the spice. According to 

Alcorn, Michael did not have any spice left when he and Alcorn left Lowe’s home. 

 Later that evening, Michael suffered from delusions and became extremely paranoid. 

None of the other individuals at Lowe’s home experienced issues similar to those experienced by 

Michael. The next day, Michael showed Alcorn and Lowe some guns and said he would use 

them “for when they come.” Michael kept a loaded gun hidden next to his bed and accused 

Lowe of stealing a four-wheeler from plaintiff. On June 9, 2011, Michael burned down the 

family home. There is no indication that Michael was monitored or closely observed between 

his consumption of the spice on June 3 and the fire on June 9. 

 Plaintiff filed this product-liability action against defendants, raising claims for breach of 

express and implied warranties; (2) negligence/gross negligence/strict liability; and (3) violation 

of the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq. Defendants moved for 

summary disposition under MCR 2.116(C)(10), alleging, among other things, that plaintiff could 

not prove causation. They claimed that Alcorn could not identify what product, if any, Michael 

purchased from defendants’ store on June 3, and they further claimed that even if Michael did 

purchase spice from their store, plaintiff could not prove that Michael’s breakdown was caused 

by that specific product. Plaintiff argued that there were disputed issues of fact regarding 

causation that precluded summary disposition. The trial court agreed and denied defendants’ 

motion. This Court granted defendants’ application for leave to appeal. 

 We review de novo a trial court’s decision to grant or deny summary disposition. Beek v 

City of Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014); Castro v Goulet, 312 Mich App 1, 3; 

877 NW2d 161 (2015). Plaintiff moved for summary disposition under MCR 2.116(C)(10), 

which tests the factual support for a claim. A reviewing court must examine the evidence 

submitted by the parties, viewing that evidence in the light most favorable to the nonmoving 

party. Rambin v Allstate Ins Co, 495 Mich 316, 325; 852 NW2d 34 (2014). Summary 

disposition is appropriate if there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Id. Speculation and conjecture cannot be used to create 

a genuine issue of material fact. Meemic Ins Co v DTE Energy Co, 292 Mich App 278, 282; 807 

NW2d 407 (2011). 
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 A “product liability action” is defined as “an action based on a legal or equitable theory 

of liability brought for the death of a person or for injury to a person or damage to property 

caused by or resulting from the production of a product.” MCL 600.2945(h). A plaintiff raising 

a product-liability action may proceed under either a negligence or warranty theory, but must 

demonstrate that the defendant supplied a product that was defective and that the defect was the 

cause of the injury. MASB-SEG Prop/Cas Pool, Inc v Metalux, 231 Mich App 393, 399; 586 

NW2d 549 (1998). A seller cannot be liable for harm allegedly caused by a product unless the 

seller failed to exercise reasonable care with respect to the product and the failure was a 

proximate cause of the person’s injuries, or the seller made an express warranty regarding the 

product, the product did not conform, and the lack of warranty conformance was the proximate 

cause of the person’s harm. MCL 600.2947(6). 

 All of plaintiff’s claims are dependent upon plaintiff proving that Michael’s mental 

breakdown and injuries were caused by his consumption of spice purchased from defendants’ 

store.1 That is, plaintiff must show that defendants supplied the product that caused Michael’s 

injury. Although the element of causation may be supported by circumstantial evidence, such 

evidence “must facilitate reasonable inferences of causation, not mere speculation.” Skinner v 

Square D Co, 445 Mich 153, 164; 516 NW2d 475 (1994). As the Michigan Supreme Court 

explained in Skinner: 

In Kaminski v Grand Trunk W R Co, 347 Mich 417, 422; 79 NW2d 899 (1956), 

this Court highlighted the basic legal distinction between a reasonable inference 

and impermissible conjecture with regard to causal proof: 

 As a theory of causation, a conjecture is simply an 

explanation consistent with known facts or conditions, but not 

deducible from them as a reasonable inference. There may be 2 or 

more plausible explanations as to how an event happened or what

produced it; yet, if the evidence is without selective application to 

any 1 of them, they remain conjectures only. On the other hand, if 

there is evidence which points to any 1 theory of causation, 

indicating a logical sequence of cause and effect, then there is a 

juridical basis for such a determination, notwithstanding the 

existence of other plausible theories with or without support in the 

evidence. 

 We want to make clear what it means to provide circumstantial evidence 

that permits a reasonable inference of causation. As Kaminski explains, at a 

minimum, a causation theory must have some basis in established fact. However, 

 

1

 We disagree with plaintiff’s argument that defendants abandoned any challenge to the MCPA 

claim because they did not request dismissal of that claim in the trial court. A review of 

defendants’ motion for summary disposition and brief in support of that motion reveals that 

defendants sought dismissal of all of plaintiff’s “claims.” 
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a basis in only slight evidence is not enough. Nor is it sufficient to submit a 

causation theory that, while factually supported, is, at best, just as possible as 

another theory. Rather, the plaintiff must present substantial evidence from which 

a jury may conclude that more likely than not, but for the defendant's conduct, the 

plaintiff's injuries would not have occurred. [Skinner, 445 Mich at 164-165.] 

In this case, even assuming that plaintiff presented sufficient circumstantial evidence that 

Michael purchased spice at defendants’ store on June 3, 2011, it is mere speculation to conclude 

that the purchased spice caused Michael’s injury. 

 According to Alcorn, Michael shared his spice with others on June 3, 2011, and Michael 

also combined his consumption with spice provided by another person. Michael also purchased 

spice from other locations, and Alcorn stated, “they would keep these stupid containers and 

they’d empty the packets into the container . . . .” Given this evidence, it is entirely speculative 

to conclude that any spice purchased from defendants’ store caused Michael’s adverse reaction. 

Moreover, Michael shared his spice with other members of the group, but no one else 

experienced issues similar to those experienced by Michael. In addition, we note that Michael 

was known to use Vicodin and Xanax, and to consume alcohol, and his initial exhibition of 

paranoia and hallucinations later became heightened.2

 

 Plaintiff submitted a medical report from Dr. Gerald Shiener, who concluded that 

Michael’s “illness could not have occurred but for the ingestion of the K2 Spice Compound.” 

However, the report does not recognize that there were at least two sources of spice that Michael 

consumed on June 3, 2011, and it does not identify defendants’ sale of spice as the cause of 

Michael’s mental breakdown. Even if Dr. Shiener’s report is accepted as competent evidence 

that Michael’s ingestion of spice caused his mental breakdown, in light of the evidence that 

Michael purchased different brands of spice from other locations and the evidence that another 

person also supplied some of the spice that Michael consumed on June 3, 2011, it is mere 

speculation to conclude that spice purchased from defendants’ store caused Michael’s illness. In 

short, there is no evidence selectively identifying any spice purchased from defendants’ store as 

the more likely cause of Michael’s injury. 

 Plaintiff also argues that defendants’ sale of spice in June 2011 violated MCL 333.7402, 

which became effective in April 2003 and served to ban controlled-substance analogues, and also 

violated various other statutes. Plaintiff argues that these breaches of a statutory duty of care 

establish a presumption of negligence. Dep’t of Transp v Christensen, 229 Mich App 417, 420; 

581 NW2d 807 (1998). However, according to Michigan’s Department of Licensing and 

Regulatory Affairs, the Michigan Legislature banned spice and other synthetic drugs in 2012 by 

classifying them as Schedule 1 Drugs, and closing a loophole that allowed manufacturers to 

 

2

 It is unknown whether Michael continued to abuse spice purchased from another establishment 

during the approximate five-day period between his purchase on June 3 and the burning of the 

home, or whether he used other drugs or alcohol that may have caused his progressively 

worsening illness. 
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continue the sale of a product by altering the chemical makeup of the drug.3 That amendment of 

MCL 333.7402 became effective on July 1, 2012, more than a year after Michael’s purchase of 

the product in this case. At any rate, regardless of whether the spice at issue was subject to 

regulation at the time of sale, such that any statutory violation may be considered prima facie 

evidence of a breach of duty of care, plaintiff must still demonstrate that defendants’ sale was the 

proximate cause of Michael’s injury. As previously discussed, a factfinder would have to 

speculate that spice purchased from defendants’ store was the cause of Michael’s injury. Thus, 

plaintiff’s attempt to rely on a purported violation of the law does not alter our conclusion that 

summary disposition is warranted in defendants’ favor. 

 Reversed and remanded for entry of an order granting summary disposition to 

defendants. We do not retain jurisdiction. 

/s/ Michael J. Riordan 

/s/ Patrick M. Meter 

/s/ Karen M. Fort Hood 

 

3

 Michigan’s Department of Licensing and Regulatory Affairs, Snyder signs bills to classify K2, 

Spice as Schedule 1 Drugs <http://www.michigan.gov/lara/0,4601,7-154-10573_11472-280858--

,00.html> (accessed March 1, 2017).