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. Opinion Stephen J. Markman 

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 his 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 party to this appeal because the 

jury determined that he was not negligent. 

3
 
 

sometime after Ms. Craig was admitted, met with Ms. Craig 

at approximately 11:00 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 given ten units of Pitocin4 in order to 

induce labor.5 From 11:30 A.M. to 6:00 P.M., Ms. Craig was 

given doses of Pitocin in increasing amounts. 

One of the central issues at trial was the precise 

amount of Pitocin administered to Ms. Craig and whether, as 

plaintiff 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 

encephalopathy9 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 Webster’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 through hypoxia or through 

the pounding of plaintiff’s head against his mother’s 

“pelvic rim” before birth. 

Plaintiff also named Associated Physicians, P.C., the 

employer of Drs. Kittur and Gennaoui, under a theory of 

vicarious liability. In addition, plaintiff named Oakwood 

Hospital, where plaintiff was delivered, and named Henry 

on October 30, 1981, when he opined that plaintiff had

chronic, nonspecific encephalopathy with retardation or 

psychomotor delay, cerebral palsy, and epilepsy. When 

plaintiff was in his early teens, Dr. Nigro diagnosed him

with profound encephalopathy, spastic quadriplegia, mental

retardation, and aphasia. “Aphasia” is “the loss of a

previously held ability to speak or understand spoken or

written language, due to injury of the brain.” Random 

House Webster’s Unabridged Dictionary (2d ed, 2001). 

8
 
 

 

Ford Hospital under a successor liability theory.11 

On January 21, 1997, defendant asked the Court to 

exclude the testimony of Dr. Ronald Gabriel, plaintiff’s 

proposed causation expert, or, 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 time the expert witness 

has been engaged in the active clinical practice

or instruction of the health profession or the 

specialty. 

(d) The relevancy of the expert witness’s

testimony. 

Second, the proposed testimony must “assist the trier 

25 Id. 

26 People v Beckley, 434 Mich 691, 710-711; 456 NW2d

391 (1990) (opinion of BRICKLEY, J.). 

27 MRE 702. 

28 Id. 

13
 
 

of fact to understand the evidence or to determine a fact 

in issue . . . .”29 In other words, the expert opinion 

testimony “must serve to give the trier of fact a better 

understanding of the evidence or assist in determining a 

fact in issue.”30 

Finally, under MRE 702 as it read when this matter was 

tried, expert 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 not generally accepted within 

the medical community, as required by Davis-Frye. Dr. 

Gabriel’s etiological theory, as summarized by defendant in 

arguing its motion, was that “hyperstimulat[ion]” of the 

uterus caused the head of the fetus (plaintiff) to pound 

37	 Davis, supra at 370. 

38 Id. at 372. See also People v Young, 418 Mich 1,

24; 340 NW2d 805 (1983) (“The Davis-Frye standard is the 

means by which the court can determine that the novel

evidence offered for admission here enjoys such 

recognition.”). 

39 People v Young (After Remand), 425 Mich 470, 475;

391 NW2d 270 (1986). 

16
 
against his 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. Craig’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 between these elements. 

As shown in part IV, this is not a permissible inference. 

Consequently, the court again had reason to conclude that 

Dr. Gabriel’s testimony could not have “assist[ed] the 

trier of fact” given the yawning gap between Dr. Gabriel’s 

testimony and the conclusions 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 element of his medical 

malpractice claim. 

IV. JUDGMENT NOTWITHSTANDING THE VERDICT 

Even if plaintiff were able to show upon remand that 

Dr. Gabriel’s testimony was properly admitted, defendants 

would nevertheless be entitled to JNOV. The record reveals 

that the proofs submitted by plaintiff do not support the 

verdict rendered by the jury because of plaintiff’s failure 

to establish that defendants’ breach of the applicable 

standard of care proximately caused his cerebral palsy. 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 commonlaw 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 

24
 
 

 

 

Co: 

The cause in fact element generally requires

showing that “but for” the defendant’s actions,

the plaintiff’s injury would not have occurred.

On the other hand, legal cause or “proximate

cause” normally involves examining the 

foreseeability of consequences, and whether a 

defendant should be held legally responsible for

such consequences.[47] 

As a matter of logic, 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 affected 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, “watershed” regions of the 

brain just as “the last sprinkler who [sic] gets the 

pressure is the least able to provide water for that area 

of the lawn.” The crux of Dr. Gabriel’s theory, then, was 

that plaintiff suffered traumatic head injury during labor 

and was detrimentally affected by that trauma and the 

accompanying vascular effects. 

Even if we accept Dr. Gabriel’s testimony in full, a 

fatal flaw remains in plaintiff’s prima facie case: Dr. 

Gabriel never testified that the injuries stemming from 

this pounding and its accompanying vascular effects could 

cause cerebral palsy, mental retardation, or any of the 

other conditions now presented by plaintiff. 

Dr. Gabriel began his testimony by explaining that an 

MRI image showed that plaintiff’s brain tissue had developed 

asymmetrically. 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 that caused plaintiff’s head 

69 Compare 1st of America Bank, Mid-Michigan v United

States, 752 F Supp 764, 765 (ED Mich, 1990) (finding that

the negligence of Air Force physicians proximately caused a

child’s cerebral palsy where the plaintiff and the 

defendant presented extensive testimony on the etiology of

cerebral palsy); Bradford v McGee, 534 So 2d 1076 (Ala,

1988) (holding that the plaintiffs presented evidence 

sufficient for the jury to determine that the defendant’s

negligence proximately caused their son’s cerebral palsy);

Dick v Lewis, 506 F Supp 799 (D ND, 1980). 

70 United States v O’Hagan, 521 US 642, 691 n 7; 117 S

Ct 2199; 138 L Ed 2d 724 (1997) (Thomas, J., concurring in

part and dissenting in part). 

33
 
 

 

injury also caused his cerebral palsy. 

Such indulgence is prohibited by our jurisprudence on 

causation. We have long required the plaintiff to show 

“that ‘but for’ the defendant’s actions, the plaintiff’s 

injury would not have occurred.”71 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 consider the possibility that 

Henry Ford might take over 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 Co77 as supporting the 

imposition of successor liability.78 

77 397 Mich 406, 430; 244 NW2d 873 (1976).

78 See Turner, 397 Mich 430: 

(1) There was basic continuity of the 

enterprise of the seller corporation, including,

apparently, a retention of key personnel, assets,

general business operations, and even the 

[corporate] name. 

(2) The seller corporation ceased ordinary

business operations, liquidated, and dissolved 

soon after distribution of consideration received 

from the buying corporation. 

37
 
 

 

We recently described the scope of successor liability 

in Foster v Cone-Blanchard Machine Co.79 There, we observed 

the “traditional rule” that successor liability requires an 

examination of “the nature of the transaction 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 purchasing corporation paying for 

the acquired assets with shares of its own stock. . . .”86 

We also conclude that Henry Ford is not a “mere 

continuation” of Associated Physicians Medical Center, Inc. 

As the history recited above shows, Associated Physicians 

split into two entities immediately before Henry Ford’s 

purchase of Associated Physicians Medical Center, Inc. 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. 

KELLY, 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-Frye1 

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 this case, others have noted the 

4
 
 

 

The judge indicated a willingness to revisit the motion 

should defendant provide support for its contention: "[Y]ou 

can submit anything additional. I will take a look at it. 

But that's my ruling today." Defendant never renewed the 

motion. 

difference between the burden of persuasion, which is on

the proponent of the evidence, and the initial burden of

production. "Because of judicial economy and the 'liberal

thrust' of the rules pertaining to experts, it seems 

reasonable to place the initial burden of production on the

opponent for purposes of [a] hearing." Gentry v Magnum, 195

W Va 512, 522; 466 SE2d 171 (1995). Appellate decisions in

the area offer "little guidance on how trial courts should

procedurally accomplish their gatekeeping responsibilities

without frustrating" the policy of liberal admissibility of

expert evidence. Alberts v Wickes Lumber Co, 1995 US Dist

LEXIS 5893 (ND Ill, 1995). 

Commentators have also addressed the problem. They

have noted that allocating the initial burden of production

to the opponent of the evidence "furthers the []

gatekeeping objective without hampering the 'liberal 

thrust' of the [rules of evidence]." Accordingly, the 

opponent's burden is merely to go forward with evidence

showing that the plaintiff's expert proof is inadmissible.

"Plaintiff bears the burden of showing by a preponderance

of the evidence that the expert's opinion is admissible."

Berger, Procedural paradigms for applying the Daubert test,

78 Minn L Rev 1345, 1365-1366 (1994). See, also, Brown,

Procedural issues under Daubert, 36 Hous L Rev 1133, 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 

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