Michigan Supreme Court Lansing, Michigan

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman 

# Opinion

**FILED JULY 23, 2004**

**ANTONIO CRAIG, by his next friend, KIMBERLY CRAIG,**  **Plaintiff-Appellee,**

**v Nos. 121405**  **121407-09 OAKWOOD HOSPITAL, HENRY FORD**  **HOSPITAL, doing business as HENRY FORD HEALTH SYSTEM, ASSOCIATED**  **PHYSICIANS, P.C., and ELIAS G. GENNAOUI, M.D.,**  **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 h is mother during her**  **labor leading to his delivery. Specifically, plaintiff**

1**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, the jury returned a verdict in plaintiff**  = **s favor. The trial court thereafter determined that defendant 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. FACTS AND PROCEDURAL HISTORY**  **This appeal arises out of the events surrounding plaintiff’s birth on July 16, 1980. Plaintiff’s mother,** 

**1 249 Mich App 534; 643 NW2d 580 (2002).** 

2**Kimberly Craig, received prenatal care from defendant Associated Physicians, P.C. 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 for the intravenous administration of medication, should the need arise.**  **Nurses applied an external fetal-uterine monitor to Ms. Craig at approximately 9:30**  **A .**  **M ., at which time she still**  **had not experienced contractions. At 10:00, Ms. Craig began to receive 1000 cc of a 5% Ringer’s lactate solution**  **through the “keep open” IV**  **line. Dr. Gennaoui, who had taken over for Dr. Kittur** 

**2 Dr. Kittur is not a par**  **ty 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**  **A .**  **M . He was concerned that Ms. Craig**  **and her child had been exposed to infection since her membranes burst earlier that morning,**  **3 and concluded that**  **Ms. Craig should be give n ten units of Pitocin**  **4 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 argued, she had mistakenly received a double dosage. Plaintiff’s standard of care expert, Paul**  **Gatewood, M.D., testified that Ms. Craig’s medical records reveal that she was inadvertently given two doses of**  **Pitocin. The first was administered shortly after 11:00**

**a.m. upon Dr. Gennaoui’s order. Nurse Quinlan wrote a**  **check on Dr. Gennaoui’s order for Pitocin to indicate, according to Dr. Gatewood, that she had 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 Ms. Craig was already receiving intravenously. Thus, according to Dr. Gatewood’s**  **testimony, Dr. Gennaoui had given a 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 any complications. Medical records compiled**  **after plaintiff’s birth show that Ms. Craig began**  **experiencing contractions of “moderate” strength after receiving Pitocin and that “moderate” contractions**  **continued until plaintiff’s delivery. Plaintiff contends, however, that the records from a**  **fetal uterine monitor tell a different story. These records, according to Dr. Gatewood, show that 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 administered to Ms. Craig caused contractions of excessive intensity and duration.**  **Plaintiff’s umbilical cord became compressed because of these contractions, thereby decreasing the amount of blood**  **flowing to plaintiff. The result was the pattern of decelerations in heart rate shown by the fetal uterine**  **monitor and a decrease in the amount of oxygen flowing to plaintiff’s brain, or “hypoxia” in medical parlance.**  **Plaintiff was born shortly before 7:00 P**  **. M**  **. 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 taken shortly after his birth depicts an**  **infant who had recently suffered head trauma. Specifically, plaintiff points to a “large ridge” across**  **his forehead as evidence of “facial or brow molding,” and argues that the photograph clearly reveals bruising and** 

**7 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 Dr. Carolyn Johnson, who concluded that plaintiff seemed to be healthy and displayed normal**  **cognitive functions. 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. Dr. Nigro diagnosed plaintiff with nonprogressive**  **encephalopathy 9**  **with global developmental delay and mild**  **spasticity. He concluded at the time and maintained throughout this trial that the etiology or 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 Web ster’s Unabridged Dictionary **(2d ed, 2001).**

**10 Dr. Nigro gave a slightly different diagnosis later,** 

7**Plaintiff initiated the present lawsuit in 1994 through his mother, Kimberly Craig, as next friend. He**  **alleged that Drs. Gennaoui and Kittur committed medical malpractice in failing to monitor plaintiff’s heartbeat**  **with an internal uterine catheter until 2:30 P**  **. M**  **. on July 16, 1980. Further, he alleged that Dr. Gennaoui and his**  **colleagues negligently administered Pitocin to Ms. Craig despite the fact that she presented physical symptoms**  **indicating that Pitocin was unnecessary and potentially harmful. As a result, plaintiff alleged, plaintiff**  **sustained brain damage either throug h 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 delive**  **red, 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, in the alternative, to conduct a**  Davis-Frye **hearing. 12**  **This motion was denied. Henry Ford filed a 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 the present value of the $36 million awarded by the jury.**  **The trial**

**court denied**  **defendants’ motion**  **for 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 Hospital liable on a successor**  **liability theory.” 14**  **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 A court necessarily**  **abuses its discretion when it “admits evidence that is inadmissible as a matter of law.”**  **16 However, any error in**  **the admission or exclusion of evidence will not warrant appellate relief “unless refusal to take this action** 

**13 249 Mich App 534, 544.** 

**14 469 Mich 880 (2003) (citations omitted).** 

**15** People v Katt **, 468 Mich 272, 278; 662 NW2d 12 (2003).** 

**16** Id.

10**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 or, in the alternative, to hold a**  Davis-Frye **hearing. 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 that govern the construction and application of statutes.’”**  **24 When the language of an**  **evidentiary rule is unambiguous, we apply the plain meaning of the text “’without further judicial construction or** 

**24** 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 testimony.**  **27 Generally, the expert may be**  **qualified by virtue of “knowledge, skill, experience, training, or education.”**  **28 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 professional**  **training of the expert witness. (b)**  **The area of specialization of the expert witness.**  **(c) The length of tim**  **e 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 testimony must have been based on a**  **“recognized” form of “scientific, technical, or other specialized knowledge.”**  **31 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 case was tried, the admission of expert**  **testimony was subject not only to the threshold requirements of MRE 702, but also to the standard**  **articulated in** People v Davis, **35 now generally known in**  **Michigan as the** Davis-Frye **test. 36**  **In** Davis, **we held that expert opinion based on novel scientific techniques is**  **admissible only if the underlying methodology is generally**

**32 223 Mich App 485, 491; 566 NW2d 671 (1997)**  **(citations and quotation marks omitted).**

**33** 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 the scientific community. 37**  **Thus, in determining whether the proposed expert opinion was**  **grounded in a “recognized” field of scientific, technical, or other specialized knowledge as was required by MRE 702,**  **a trial court was obligated to ensure that the expert opinion was based on accurate and generally accepted**  **methodologies. 38**  **The proponent of expert testimony bears the burden of proving general acceptance under this**  **standard. 39** 

**B. THE**  **TRIAL COURT’S FAILURE TO PERFORM ITS 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 no t 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 mother’s pelvic anatomy, thereby producing permanent brain damage. This theory, 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. That is, none supported a causal connection between Pitocin and brain injury incurred**  **through repeated pounding of the fetal 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. Instead of consulting plaintiff’s proffered scientific and medical literature, the court**  **erroneously assigned the burden of proof under** Davis-Frye **to defendant—the party** opposing **the admission of Dr. Gabriel’s testimony—and held that defendant 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 to review plaintiff’s proposed expert**  **testimony unless defendant introduced evidence that the expert testimony was “novel.” 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. These obligations applied**  **irrespective of the type of expert opinion testimony offered by the parties.**  **41 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. Cr aig’s pelvic anatomy,**  **and that the resulting head trauma caused plaintiff’s cerebral palsy. This causal**  **sequence, defendant argued, has “never been described in medical literature” and was at**  **odds with the testimony of plaintiff’s other expert**

**41 See MRE 702.** 

19**witnesses. Plaintiff failed to introduce a single authority that**  **truly supported Dr. Gabriel’s theory in response to defendant’s motion. Instead, plaintiff repeatedly stressed**  **that medical literature amply supported the proposition that Pitocin could cause brain damage—a proposition**  **defendant did not contest—and supplied the court with literature to that effect. 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, a**  Davis-Frye **hearing was more than justified in light of the information 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 of evidence. Indeed, the evidence plaintiff**  **offered in support of Dr. Gabriel should have provided sufficient notice to the trial court that his theory lacked**  **general acceptance in the medical community. For one thing, Dr. Gabriel was unable to cite a single 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 that such testimony was beyond his expertise. This failure to root his causal theory in**  **anything but his own hypothetical depiction of female anatomy indicates that Dr. Gabriel’s testimony may have**  **been too speculative under MRE 702 to assist the trier of fact.**  **Finally, a** Davis-Frye **/MRE 702 hearing should have alerted the court to the error described in part IV. 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 bet ween 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 plaintiff hoped the jury would draw from it.** 

22**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 elem**  **ent 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. We therefore reverse and remand for entry of 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 was injured, and (4) that the plaintiff’s injuries were the proximate result of 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**  **We defined these elements in** Skinner v Square D

**44** 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**

24Co **: 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, a court must find that the defendant’s negligence was a cause in fact of the**  **plaintiff’s injuries before it can hold 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**  **While a plaintiff need not prove that an act or omission was the**  sole **catalyst for his injuries, he must introduce 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 burden by showing only that the defendant**  may **have caused his injuries. Our case law requires more than a mere possibility or a plausible**  **explanation. 51**  **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 switch manufactured by the defendant had malfunctioned.**  **55 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**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, despite being disconnected from its power source.**  **59 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**  **Consequently, we concluded that the trial court had properly granted summary disposition to the** 

**56** Id.

**57** Id.

**58** Id.

**59** Id.

**60** Id.

27**defendant.** Mulholland v DEC Int’l, 61 **provides a useful factual counterpoint to**  Skinner **. In** Mulholland, **the plaintiffs’ herd of milking cows contracted mastitis, a bacterial**  **infection of the udder, after the plaintiffs began to use a milking system built by the defendants.**  **62 Key expert**  **testimony was provided by Sidney Beale, an expert in agriculture and dairy science. Mr. Beale had observed a**  **milking at the plaintiffs’ 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 in the** 

**61 432 Mich 395; 443 NW2d 340 (1989).** 

**62** Id. **at 399.**

**63** Id. **at 400.**

**64** Id.

**65** Id. **at 398.**

28**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 the periods of oxygenation between**  **contractions. Dr. Gatewood testified that, as a result, plaintiff 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 injuries for which plaintiff sought**  **compensation. Indeed, Dr. Gatewood denied he had the requisite expertise to make the causal linkage and**  **expressly refused to testify to a causal 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 affect**  **ed plaintiff’s brain before delivery; he referred to these**  **mechanisms as “traumatic” and “vascular.” According to Dr. Gabriel’s testimony,**  **plaintiff sustained “traumatic” injuries when 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 brain sustained compression injuries, which resulted in elevated venous “pressures” and impeded**  **“arter[ial] blood flow.” Dr. Gabriel 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, “water shed” 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. He failed, however, to trace this asymmetric development either back to the traumatic and**  **vascular mechanisms he described or forward to the specific**

32**neurological conditions presently displayed by plaintiff. Thus, how exactly the mechanisms he described led to**  **cerebral palsy (as opposed to any other neurological impairment) and how they were connected to the asymmetric**  **brain development depicted in plaintiff’s MRI was never explained.**  **69 It is axiomatic in logic and in science that**  **correlation is not causation. 70**  **This adage counsels that it is error to infer that**  **A causes**  **B from the mere fact that**  **A and**  **B occur together. Given**  **the absence of testimony on causation supplied 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 t hat 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 Where the connection**  **between the defendant’s 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 erred as a matter of law in denying defendants’**  **motion for JNOV**  **. We reverse the judgment of the Court of Appeals and 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**(Henry Ford) 73**  **was liable as a corporate successor to Associated Physicians, P.C. To the contrary, we conclude**  **that the trial court erroneously imposed successor liability on Henry Ford.**  **At the time of the alleged malpractice in 1980, defendant Drs. Kittur and Gennaoui were employees of**  **Associated Physicians, P.C., which was a medical professional corporation organized under the Professional**  **Service Corporation Act. 74**  **Six years after plaintiff’s birth, Associated Physicians, P.C., began to co**  **nsider the possibility that Henry Ford might take ov**  **er its administrative and bookkeeping services. While Henry Ford was interested in**  **pursuing this arrangement with Associated Physicians, the latter’s corporate form posed an obstacle. As a**  **professional corporation, Associated Physicians, 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**  **See generally Professional Services Corporation Act, MCL 450.221**  et seq **. The shares of a professional**

35**Consequently, Associated Physicians, P.C., split into two entities. Its administrative portion was incorporated**  **Associated Physicians Medical Center, Inc., a business corporation in which nonphysicians could legally share**  **ownership and control. Its medical practice, however, became APMC, P.C., a new professional corporation.**  **Henry Ford purchased all the shares of Associated Physicans Medical Center, Inc., in accordance with the**  **Business Corporation Act. 76**  **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 agreement with Associated Physicians**  **Medical Center, Inc., in which the latter 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. (which was vicariously liable to plaintiff), the equitable concerns that justify 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. The Court of Appeals agreed. Both courts relied in part on the factors**  **listed in** Turner v Bituminous Cas Co **77 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 between predecessor and successor corporations.”**  **80 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, however, the 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, in bad faith, or lacking in consideration.**  **Likewise, plaintiff has adduced no evidence that 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 not demonstrated that a de facto merger**  **occurred. A de facto merger exists when each of the 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**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 purch asing 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. The professional corporation—Associated Physicians’ medical**  **practice—became APMC, Inc. 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 liable as a successor to Associated**  **Physicians, P.C., is that which continued 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. Not only are the** Turner/Foster **requirements not met here but, more important, the policies that justify the imposition of**  **successor liability are noticeably inapplicable here. We 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**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 evidentiary hearing regarding the**  **qualifications and theories propounded by one of the plaintiff**  = **s expert witnesses. Finally, the trial court erred in concluding that Henry Ford Health Care Corporation**  **was a corporate successor to the professional medical**

42**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 to successor liability, I concur in the result only.**  **Michael F. Cavanagh _______________________________**  **v 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,**

**Nos. 121405**  **121407-121409 OAKWOOD HOSPITAL, HENRY FORD**  **121419 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.**

**K ELLY**  **, J. (**  concurring in part and dissenting in part **). I dissent from the majority's decision that the trial**  **court abused its discretion in denying a** Davis-Frye 1 **hearing. I also disagree that there was insufficient evidence of causation. I agree with the conclusion that**  **Henry Ford Hospital is not liable under the theory of successor liability. Therefore, with respect to the** 

**1** 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 it was not**  **recognized in the scientific community. 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 with it so that head compression is averted.** 

**2 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 Desk Reference and quoted a textbook**  **describing the effects of labor on a fetus. Defendant offered nothing in response. Had it set 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 to a** Davis-Frye **hearing. This effectively removes from the trial court the discretion 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 in the scientific**  **community.**

**3 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 it**  **resulted from the administration of excessive Pitocin. The court heard oral argument on the motion. In focusing on**  **the expert testimony that it believed was inadmissible, defendant referred to Dr. Gabriel's 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 thi**  **s 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, 1140 -**  **1141 (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 the admissibility of evidence "shall be**  **determined by the court . . . . In making 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 issue exists with regard to a theory's acceptance, the theory's proponent must prove its**  **acceptance in the medical community. 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. It never provided support for counsel's proposition that Dr. Gabriel's traumatic injury theory lacked**  **recognition in the scientific community. Even given the opportunity to provide support to the court, defendant was**  **either unwilling or unable to do so. Hence, the trial**

**6 court did not abuse its discretion when it refused to hold** 

**a** Davis-Frye **hearing. The Evidence of Causation**  **Defendants assert that plaintiff failed to present sufficient evidence that his damages were 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." Although desirable, such precision is simply not mandated. "[T]he**  **plaintiff's evidence is sufficient if it '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 was sufficient for a jury** 

**8 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 appear in medical reference materials**  **discussing the effects of Pitocin. 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 on Dr. Gabriel's**

**9 "pounding and grinding" theory as if it were the only**  **theory that plaintiff presented. It was not. Dr. Gabriel testified that there were two different contributors to**  **plaintiff's injuries. He claimed that plaintiff suffered from both a decreased blood flow and from a traumatic**  **compression injury. 3**  **In addition to Dr. Gabriel, Dr. Paul Gatewood testified for plaintiff regarding the standard of care. He**  **stated that an excessive dosage of Pitocin was given to plaintiff's mother. In his expert opinion, this was a**  **deviation from the standard of care. Dr. Gatewood 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 cerebral palsy in animals. In Dr. Gabriel’s**  **opinion, the excessive Pitocin caused the 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. Both Dr. Gabriel and**

**4 When plaintiff's counsel asked whether these**  **deviations "were the proximate causes of the reduced oxygen, reduced blood flow to the fet[us] here Antonio**  **Craig," the doctor answered "[T]hese deviations are a result in the hypoxic episodes . . . all of these factors**  **contributed to the development and prolongation of the interim hypoxia that this baby's brain suffered."** 

**5 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**