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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Plaintiff-Appellee, UNPUBLISHED March 16, 2017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: R IORDAN , P.J., and M ETER and F ORT H OOD , JJ.

P ER C URIAM

.

Defendants-appellants, Wixom Smokers Shop, Salam Petro, Leo Br ikho, and Leo and Sam, Inc. (“defendants”), appeal by leave granted from the tria l court’s order denying their motion for summary disposition under MCR 2.116(C)(10) in this p roduct-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, exp erienced hallucinations, and displayed severe episodes of par anoia 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 carri er and a newspaper-delivery per son for coming to the home. Approximately five days after ing esting the spice, Michael burn ed down the family home. Criminal charges against him were resolved by a plea of not gui lty by reason of insanity.

Plaintiff filed this product-liability action against defendan ts, as the alleged sellers of the product that caused Michael’s men tal injury and breakdown. Mic hael was never deposed, apparently because of continuing physical and mental health iss ues. Instead, plaintiff relied on-2- Michael’s friend, Jared Alcorn, to establish defendants’ identi ty 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 M ichael purchased. Alcorn admitted that Michael sometimes purchased spice from other loca tions.

After leaving defendants’ store , Alcorn and Michael went to th e home of another friend, Brian Lowe, to ride dirt bikes. During the evening, Michael an d several others who were there consumed the spice that Michael brought, and another person als o supplied some spice that was shared with the group. Alcorn did not know where that other pe rson purchased the spice that he brought. According to Alcorn, the group smoked between seven a nd nine blunts of spice, but Alcorn denied being part of that group. Alcorn knew that Micha el used other drugs, including Vicodin and Xanax, as well as alc ohol. Alcorn did not think Mi chael consumed any alcohol that evening, but did not know if Michael consumed any other drugs b esides the spice. According to Alcorn, Michael did not have any s pice 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 a t Lowe’s home experienced issues similar to those experienced by Michael. The next day, Michael showed Alcorn and Lowe some gun s and said he would use them “for when they come.” Michael kept a loaded gun hidden ne xt to his bed and accused Lowe of stealing a four-wheeler from plaintiff. On June 9, 201 1, Michael burned down the family home. There is no indicat ion that Michael was monitored or closely observed between his consumption of the spi ce on June 3 and the fire on June 9.

Plaintiff filed this product-liability action against defendan ts, raising claims for breach of express and implied warranties; (2) negligence/gross negligence /strict liability; and (3) violation of the Michigan Consumer Pro tection Act (MCPA), MCL 445.901 et seq . Defendants moved for summary disposition under MCR 2.116(C)(10), alleging, among oth er things, that plaintiff could not prove causation. They claime d that Alcorn could not identi fy what product, if any, Michael purchased from defendants’ store on June 3, and they further cl aimed that even if Michael did purchase spice from their store, plaintiff could not prove that Michael’s breakdown was caused by that specific product. Plainti ff argued that there were dis puted issues of fact regarding causation that precluded summary disposition. The trial court agreed and denied defendants’ motion. This Court granted defenda nts’ application for leave t o appeal.

We review de novo a trial court’s decision to grant or deny su mmary 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 u nder 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 mo st favorable to the nonmoving
party. Rambin v Allstate Ins Co , 495 Mich 316, 325; 852 NW2d 34 (2014). Summary disposition is appropriate if th ere is no genuine issue of mate rial 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).-3- 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 negligenc e or warranty theory, but must demonstrate that the defendant supplied a product that was defe ctive 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 p roduct 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 d ependent upon plaintiff proving that Michael’s mental breakdown and injuries were cause d by his consumption of spice purchased from defendants’

store. 1 That is, plaintiff must show t hat defendants supplied the pro duct that caused Michael’s injury. Although the element of causation may be supported by circumstantial evidence, such evidence “must facilitate reasonable inferences of causation, n ot mere speculation.” Skinner v Square D Co , 445 Mich 153, 164; 516 NW2d 475 (1994). As the Michigan Supr eme 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 re asonable 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 applicat ion 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 i s a juridical basis for such a det ermination, notwithstanding the existence of other plausible t heories with or without support i n 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 ar gument that defendants abandone d any challenge to the MCPA claim because they did not request dismissal of that claim in t he trial court. A review of defendants’ motion for summary disposition and brief in support of that motion reveals that defendants sought dismissal of a ll of plaintiff’s “claims.”-4- a basis in only slight evidence is not enough. Nor is it suffi cient to submit a causation theory that, while factually supported, is, at best, just as possible as another theory. Rather, the pla intiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defe ndant'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 defe ndants’ store on June 3, 2011, i t is mere speculation to conclude that the purchased spice caused Michael’s injury.

According to Alcorn, Michael shared his spice with others on J une 3, 2011, and Michael also combined his consumption with spice provided by another pe rson. 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 thi s evidence, it is entirely speculative to conclude that any spice purchased from defendants’ store cau sed Michael’s adverse reaction. Moreover, Michael shared his spice with other members of the gr oup, 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 hav e occurred but for the ingestio n of the K2 Spice Compound.” However, the report does not rec ognize 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 ac cepted 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 location s 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’ s tore caused Michael’s illness. In short, there is no evidence sele ctively identifying any spice p urchased from defendants’ store as the more likely cause of Michael’s injury.

Plaintiff also argues that defendants’ sale of spice in June 2 011 violated MCL 333.7402, which became effective in April 2003 and served to ban controll ed-substance analogues, and also violated various other statutes. Plaintiff argues that these b reaches 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 Departme nt of Licensing and Regulatory Affairs, the Michigan Legislature banned spice and o ther synthetic drugs in 2012 by classifying them as Schedule 1 Drugs, and closing a loophole th at allowed manufacturers to

2 It is unknown whether Michael continued to abuse spice purchas ed 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 c aused his progressively worsening illness.-5- 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 t he spice at issue was subject to regulation at the time of sale, such that any statutory violati on may be considered prima facie evidence of a breach of duty of care, plaintiff must still demo nstrate that defenda nts’ 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 c ause 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 warrant ed in defendants’ favor.

Reversed and remanded for entry of an order granting summary d isposition to
defendants. We do not ret ain jurisdiction.

/s/ Michael J. Riordan
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood

3 Michigan’s Department of Licen sing 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).