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STATE OF MICHIGAN 

COURT OF APPEALS 

MARKELL VANSLEMBROUCK, Minor, by and 

through ERIC BRAVERMAN, Conservator, 

 Plaintiff-Appellee, 

and 

KIMBERLY A. VANSLEMBROUCK, 

 Plaintiff, 

UNPUBLISHED 

October 28, 2014 

v No. 309680 

Oakland Circuit Court 

ANDREW JAY HALPERIN, M.D., and 

WILLIAM BEAUMONT HOSPITAL, 

LC No. 2006-754585-NH 

 Defendant-Appellants. 

and 

MICHIGAN INSTITUTE OF GYNECOLOGY 

AND OBSTETRICS, P.C., 

 Defendant. 

Before: GLEICHER, P.J., and BORRELLO and SERVITTO, JJ. 

PER CURIAM. 

 This medical malpractice case arises from Markell VanSlembrouck’s 1995 birth at 

defendant William Beaumont Hospital. Markell is now 18 years old. She cannot walk, talk, or 

feed herself, and requires full-time care. After an 18-day trial, a jury attributed Markell’s 

neurologic injuries to the circumstances surrounding her birth and assessed her damages at $144 

million. 

 The trial evidence centered on the cause of Markell’s neurologic condition and the 

scientific validity of plaintiffs’ causation theories. Fifteen expert witnesses debated these 

questions over the course of the lengthy trial. In a nutshell, plaintiffs’ expert witnesses opined 

that Markell’s traumatic birth caused her disabilities. Defendants’ experts countered that a 

genetic abnormality called pontine cerebellar hypoplasia (PCH) fully accounts for Markell’s 
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current condition. Plaintiffs’ experts conceded that important components of Markell’s brain 

never properly developed. But absent birth trauma, they contended, this abnormality would have 

caused Markell only relatively insignificant neurological problems. 

 From start to finish, this case was a battle of experts espousing widely divergent views. 

Ultimately the jury credited plaintiffs’ negligence and causation explanations. Although the trial 

was far from perfect, we affirm. 

I. FACTUAL OVERVIEW 

 The underlying record is long and complex, but presents only a handful of factual 

disagreements. Because most of the appellate issues hinge on evidentiary questions, we describe 

the medical facts in considerable detail. Although we recite the evidence in the light most 

favorable to the prevailing parties, we have noted important factual conflicts. 

 There was no debate about one central fact: Markell’s birth was traumatic. She was an 

exceptionally large newborn, weighing in at 10.5 pounds. At delivery, Markell was limp, blue, 

and unresponsive. She did not breathe spontaneously. Her head, trunk, and upper extremities 

appeared bruised. Her collarbone was fractured during an obstetrical maneuver made necessary 

when her shoulders became stuck in the birth canal. Markell’s one-minute Apgar score was one; 

a zero score would have been consistent with her death. 

 In the days following Markell’s delivery, brain imaging studies displayed the presence of 

blood in several different cerebral locations. The studies also revealed a striking congenital 

abnormality: a portion of Markell’s cerebellum was missing, as was part of a brain structure 

called the pons. 

 Plaintiffs’ experts acknowledged these abnormalities, and conceded that they contributed 

to Markell’s abnormal neurological presentation. But in their view, birth trauma markedly 

worsened any deficits attributable to the absence of these brain components. Plaintiffs’ experts 

posited that Pitocin-induced hyperstimulation of Kimberly VanSlembrouck’s uterus, combined 

with Markell’s large size, compressed Markell’s head during the last hour of Kimberly’s labor. 

According to their theory, head compression resulted in cerebral ischemia (lack of adequate 

blood flow to the cerebrum), bleeding into the brain itself, and permanent brain damage 

attributable to the trauma. 

 Defendants’ experts insisted that Kimberly’s obstetrical care met all applicable standards. 

Further, they steadfastly maintained that Markell’s neurological problems stem solely from a 

genetic abnormality called pontine cerebellar hypoplasia, type 2 (PCH-2). PCH-2 is a rare 

disorder. The children afflicted with it lack substantial portions of the cerebellum and pons, as 

does Markell. Two medical articles describing children afflicted with PCH-2 portray its victims 

as neurologically similar to Markell. Defendants’ experts further contended that despite the 

brain bleeding and the evident trauma to Markell’s head, the substance of her cerebral cortex 

remain uninjured. The initial indicia of trauma, defendants’ experts claimed, faded quickly and 

produced no permanent damage. 
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 The trial court conducted a four-day Daubert hearing1

 to evaluate the scientific reliability 

of plaintiffs’ causation theory. At its conclusion, the court found plaintiffs’ experts qualified and 

their opinions reliable under MRE 703. 

 A month-long, bitterly contentious trial followed. The jury found in Markell’s favor and 

awarded the damages her counsel had sought. Defendants’ many appellate challenges focus 

largely on issues related to causation and damages. All merit considerable discussion, but none 

persuade us that a new trial is required. 

A. PRENATAL EVENTS 

 Kimberly VanSlembrouck obtained her prenatal care from defendant Andrew Jay 

Halperin, M.D., an employee of defendant Michigan Institute of Gynecology and Obstetrics, 

P.C. Kimberly gained approximately 70 pounds during her pregnancy. One week prior to 

delivery, Kimberly weighed 328 pounds. This weight gain exceeded normal limits. 

 The medical witnesses agreed that excessive weight gain during pregnancy signals the 

possible presence of gestational diabetes. Gestational diabetes often leads to large (macrosomic) 

infants.2

 Undisputed evidence established that macrosomia creates a risk of traumatic delivery or 

the need for a cesarean section. Plaintiffs’ experts opined that Kimberly’s undiagnosed 

gestational diabetes caused Markell’s excessive growth, and that if Markell’s size had been 

accurately established prenatally, her delivery would have been accomplished by an elective 

cesarean section. 

 The parties further agreed that the standard of obstetrical care includes screening 

pregnant women for gestational diabetes. Because Kimberly’s initial glucose screening test was 

abnormal, Dr. Halperin ordered a three-hour glucose tolerance test. The three-hour test entails 

an analysis of blood samples obtained before and after the patient drinks a liquid containing 

glucose. If two values are elevated, the patient has gestational diabetes. 

 One of Kimberly’s blood sample results was elevated; two others were one point below 

the normal limit. Dr. Halperin viewed this as a negative glucose tolerance test and advised 

Kimberly to watch her diet. Dr. Jeffrey Soffer, one of plaintiffs’ obstetrical experts, conceded 

that Kimberly did not meet the “strict criteria” for gestational diabetes, but opined that she 

should have been classified with the disorder based on the lab results and her weight gain. 

According to Dr. Soffer, Dr. Halperin breached the standard of care by failing to maintain 

suspicion of gestational diabetes throughout the pregnancy and by neglecting to carefully 

monitor the baby’s growth with serial ultrasounds. Had serial ultrasounds been obtained, Dr. 

Soffer testified, Dr. Halperin would have recognized that Markell was a large baby and that a 

cesarean delivery was required. 

 

1 Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993). 

2

 Macrosomia is defined as newborn weighing more than 4,000 grams, which is 8 pounds, 13 

ounces. 
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 Kimberly’s due date was calculated as December 1, 1995. Early that morning (1:25 

a.m.), she presented at Beaumont Hospital in early labor. A resident obtained a bedside 

ultrasound at 1:40 a.m., and calculated the baby’s weight as 3,200 grams. This estimate proved 

to be off by approximately 35%, as Markell actually weighed 4,797 grams (just over 10.5 

pounds). Dr. Halperin admitted that the resident’s estimate constituted “a large error,” but 

claimed it fell within a reasonable “margin of error,” because ultrasounds are not as accurate in 

“heavier women.” Plaintiffs’ experts disagreed, asserting that the estimate was so far off that it 

violated the standard of care. 

 Dr. Halperin admitted that if he had known that Markell weighed 4,795 grams, he would 

have discussed a cesarean section with Kimberly and allowed her to choose her delivery method. 

Dr. Soffer testified that he did not know of any woman who could safely deliver a baby of 

Markell’s size as a first child. Dr. Brian Torok, a Beaumont resident who participated in 

Kimberly’s obstetrical care, conceded that if he had known that the baby weighed 4,795 grams, 

“I would not labor that patient.” 

B. THE DELIVERY 

 At 10:15 a.m. on the day of Markell’s delivery, a resident attending Kimberly ordered 

Pitocin to augment her contractions. Plaintiffs’ experts claimed that the Pitocin caused 

hyperstimulation of Kimberly’s uterus. Hyperstimulation is defined as more than five uterine 

contractions during a ten-minute period.3

 When it occurs, the doctors concurred, blood flow to 

the baby through the placenta may be compromised. Plaintiffs’ experts relied on the electronic 

fetal monitor tracing to support their theory that Kimberly’s uterus had been hyperstimulated 

with Pitocin. Defendants’ experts disagreed with plaintiffs’ interpretation of the fetal monitor 

tracing. 

 Electronic fetal monitoring produces a graph of the fetal heart rate and the maternal 

contraction pattern. The parties’ experts generally agreed that reduced blood flow to the fetus 

slows the fetal heart rate, which appears on the tracing as a dip in the heart rate graph. The dips 

visible on the tracing are called decelerations. A deceleration occurring during a contraction 

(variable deceleration) or after a contraction (late deceleration) may potentially signal inadequate 

fetal oxygenation. 

 Dr. Soffer testified that during the second stage of Kimberly’s labor (the “pushing” 

stage), the fetal monitoring tracing demonstrated that Kimberly’s uterus was being 

hyperstimulated by Pitocin, causing “tumultuous” contractions and “severe late decelerations and 

multiple variable[]” decelerations. By using Pitocin, Dr. Soffer explained, “[t]hey pushed this 

baby through a pelvis . . . too small for this baby to fit.” Dr. Soffer maintained that the repetitive 

decelerations visible on the fetal monitor represented “red flags” of fetal distress, and by 3:00 

p.m., Dr. Halperin should have initiated a cesarean section. 

 

3

 Some of the testifying witnesses used the term “tachysystole” to refer to abnormally strong and 

rapid uterine contractions. 
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 Markell was delivered at 4:47 p.m., after Kimberly pushed for two-and-a-half hours. 

Although Markell’s head delivered spontaneously, Dr. Halperin encountered difficulty delivering 

her shoulders. Dr. Halperin performed a McRoberts maneuver, which involves repositioning the 

mother’s legs to open her pelvis. In the process of delivering Markell’s shoulders, her collarbone 

fractured. At birth, Markell was limp, blue, unresponsive to stimulation, not breathing, and had a 

slow heart rate. Her one-minute Apgar score was one.4 Resuscitation brought her five-minute 

score up to seven, and she was then transferred to the Special Care Nursery. 

C. THE SPECIAL CARE NURSERY 

 According to Special Care Nursery notations, Markell bore visible evidence of a 

traumatic transit through the birth canal. The medical record documents “scalp and facial 

bruising and swelling” as well as bruising on her left arm, left nipple, and right forearm. Nursing 

notes document additional bruising to Markell’s torso. The swelling of Markell’s head, known 

as a cephalohematoma, was caused by blood collecting under the tissue covering her skull bone. 

 In the nursery, Markell developed noticeable tremors and respiratory distress. She was 

unable to suck, lacked rooting and grasp reflexes, and required oxygen to maintain normal 

oxygen saturation. Within 24 hours of her birth Markell developed seizure activity. The 

physicians caring for her described her condition in the medical record as “perinatal depression.” 

 Markell remained hospitalized in Beaumont’s Special Care Nursery until December 18, 

1995. Several laboratory and radiologic studies conducted during this time formed the predicates 

for the experts’ causation opinions. We now introduce the studies. 

1. The Umbilical Blood Gases 

 The experts concurred that one objective indicator that a newborn has been deprived of 

oxygen during the birth process is a decreased pH level in the umbilical arterial blood. A fetus 

systemically deprived of oxygen (such as might occur when the umbilical cord is clamped or 

compressed) accumulates lactic acid in the blood, causing the pH to decrease. An umbilical 

artery blood pH of 7.0 or less signifies the presence of metabolic acidosis. This finding is 

universally recognized as consistent with fetal hypoxia (lack of oxygen) during delivery. 

 Shortly after her birth, physicians attending Markell ordered an umbilical arterial blood 

gas study. According to the medical record, the arterial study was “cancelled.” Instead of 

 

4

 Apgar scores reflect the health of a newborn at one minute and five minutes after birth. The 

one minute Apgar score measures how well the baby tolerated labor and delivery, while the five 

minute score assesses the baby’s adaptation to her environment and the efficacy of resuscitation 

efforts. Five criteria are assessed: heart rate, respiration, muscle tone, response to stimulation, 

and color. Each criteria is scored as zero, one or two, with two representing optimal health. The 

top score is a 10. Markell received a zero for every criteria except heart rate. 
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analyzing arterial umbilical blood, the Beaumont lab tested venous umbilical blood. The lab 

reported a pH of 7.29, which is within normal limits for venous blood. 

 The significance of the venous blood gas result was hotly contested throughout the trial. 

Plaintiffs maintained that the unexplained cancellation of the arterial blood study signaled a 

“cover up.” Defendants contended that the arterial blood study was cancelled because the 

laboratory received an insufficient quantity of arterial blood. Plaintiffs argued that the venous 

sample was useless as an indicator of Markell’s perinatal asphyxia, as venous umbilical blood 

derives from the mother and does not reflect the pH of the baby’s blood. During crossexamination, Dr. Halperin agreed with plaintiffs’ position, stating: “the venous pH is the 

mom’s.” Defendants’ experts took varying positions. Some asserted that the venous umbilical 

blood was a mixture of the mother and the baby’s blood, while others claimed it was solely the 

baby’s blood.5

 The defense experts generally opined that the venous pH correlated well with 

arterial pH, and that a venous pH of 7.29 indicated that Markell had not sustained any perinatal 

asphyxia.6

2. The Cranial Ultrasound 

 An ultrasound of Markell’s head obtained the day after her birth revealed “no definite 

evidence of hemorrhage,” according to the Beaumont radiologist who interpreted it. The 

radiologist also noted: “The ventricular systems appear normal.” Plaintiffs’ radiology expert, Dr. 

Barry Pressman, reviewed the same ultrasound films, and disagreed. Pressman testified that the 

ventricles were “actually almost invisible” demonstrating “a swollen brain.” He elaborated: 

“The whole brain is -- the cerebrum is swollen.” According to Dr. Pressman, brain swelling is 

consistent with an ischemic injury (injury caused by lack of blood flow) that occurred before and 

during delivery. 

3. The CT Scan 

 A CT scan was performed on December 4. A Beaumont radiologist interpreted the study 

in relevant part as follows: 

 

5

 We note that in an unpublished decision involving Dr. Ronald Gabriel, whose causation theory 

is also at issue here, this Court stated in a footnote: “A venous sample [from the umbilical cord] 

measures maternal blood gases and an arterial sample measures fetal oxygenation.” Dukes v 

Harper-Hutzel Hosp, unpublished opinion per curiam of the Court of Appeals, issued January 

30, 2007 (Docket No. 255824), unpub op at 3 n 3. 

6

 The dispute regarding the significance of a normal umbilical venous sample relates to one of 

the issues presented on appeal, whether the trial court denied defendants a fair trial by excluding 

from evidence criteria promulgated by the American College of Obstetricians and Gynecologists 

(ACOG) and the American Academy of Pediatrics for diagnosing an acute intrapartum hypoxic 

event. 
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 There is a small amount of hyperdensity within the occipital horns of both 

lateral ventricles. This is consistent with a small amount of intraventricular 

hemorrhage. There is also a small amount of hyperdensity in the interhemispheric 

fissure which may represent a small area of hemorrhage. 

* * * 

 There is hypoplasia of both cerebellar hemispheres as well as the vermis 

inferiorly with a correspondently enlarged surrounding CSF space believed to 

represent a megacisterna magna. 

The experts for both sides agreed that this CT scan revealed two important findings: (1) the 

presence of blood in Markell’s ventricles (the cerebrospinal fluid-filled chambers of the brain) 

and subdurally (beneath the dura, the covering of the brain), and (2) the partial absence 

(“hypoplasia”) of the cerebellum. Cerebellar functions include coordinating voluntary muscle 

movement and modulating balance and equilibrium. The experts agreed that the abnormality of 

Markell’s cerebellum is congenital, and not due to birth trauma. Dr. Pressman distinguished the 

congenital disorder from the effects of birth trauma as follows: 

So, we have a congenital hypoplasia or incomplete growth of the 

cerebellum. However, that has nothing to do with the fact that the brain is 

swollen and was traumatized and/or had inadequate blood supply or oxygen. 

They are totally separate conditions. 

 Defendants’ neuroradiology expert, Dr. Douglas Quint, opined that only a tiny amount of 

blood (“[m]aybe a 15th of an ounce”) remained in Markell’s ventricle by the time the CT scan 

was obtained, and an equally small amount was present in her subdural space. According to Dr. 

Quint, one-half of normal, asymptomatic babies have small brain bleeds following vaginal 

delivery. He estimated that 30% of Markell’s cerebellum was missing, and 20% of her pons. 

Dr. Quint testified that he observed none of the established indicia of hypoxic ischemia when he 

reviewed Markell’s CT scan. 

D. THE MEDICAL RECORDS 

 Plaintiffs employed several medical record discrepancies to buttress their negligence 

claims. During the trial, plaintiffs alleged that the resident who performed Kimberly’s 

ultrasound mixed up Markell’s estimated fetal weight with that of a different infant, baby boy 

Vergeldt. Vergeldt was a patient of Dr. William Floyd. Dr. Halperin covered for Dr. Floyd 

during the morning that both women labored. A resident obtained an ultrasound of the Vergeldt 

baby several hours after Kimberly’s ultrasound had been completed. The resident estimated the 

Vergeldt fetal weight as 3,210 grams. Vergeldt’s baby actually weighed 3,185 grams. However, 

a handwritten notation of the Vergeldt baby’s weight reveals an obvious change. At some point, 

someone changed the 3 to a 4 by overwriting the 3: 
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A weight of 4,210 grams (9.28 pounds) corresponds more accurately to Markell’s delivery 

weight. Defendants admitted that someone had changed the record but produced no further 

explanation. 

 Dr. Halperin conceded a second mix-up regarding the Vergeldt and VanSlembrouck 

babies. Five days after Markell’s birth, Dr. Halperin dictated an “operative report, delivery 

summary” describing the delivery in some detail. The summary states, “an internal scalp lead 

and intrauterine pressure catheter were placed. There were variable decelerations down to 90. A 

scalp pH was done which was normal at 7.25.” Dr. Halperin admitted that the statements 

regarding the variable decelerations down to 90 and the scalp pH referred to the Vergeldt baby, 

and not to Markell. This dictation error occurred, Dr. Halperin claimed, because he had 

confused Mrs. Vergeldt’s labor with Kimberly’s. 

 The medical record of Markell’s stay in the Special Care Nursery does not include a 

discharge summary. Plaintiffs alleged that hospital rules required a discharge summary. 

Throughout the trial, plaintiffs’ counsel argued that its absence evidenced an additional cover-up. 

E. THE 2010 GENETIC TESTING 

 After four years of litigation, defendants moved the trial court to order that Markell 

undergo genetic testing.7

 The trial court granted the motion. In November 2010, 

PreventionGenetics, a laboratory located in Marshfield, Wisconsin, reported that Markell had a 

genetic disorder: PCH-2 as well as subtype 4.8

 The lab report states in relevant part: 

“Pontocerebellar hypoplasias subtype 2 . . . and subtype 4 . . . are subsets of neurodegenerative 

disorders, characterized by small cerebellum and brainstem, variable neocortical atrophy, and 

 

7

 Genetic testing performed early in Markell’s life revealed no specific abnormalities. 

8

 Defendants’ genetics expert admitted that most children with PCH-4 die before age four, so “by 

inference it’s thought that she’s a so-called type two.” 
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impaired cognitive and motor development . . . .” The admissibility of the PreventionGenetics 

report supplies another contested issue on appeal. 

II. PERTINENT PROCEDURAL BACKGROUND 

 Kimberly filed suit on Markell’s behalf in May 2006. In August 2006, the circuit court 

granted defendants’ motion for summary disposition, ruling that the statute of limitations barred 

plaintiffs’ claim. This Court reversed in Vanslembrouck v Halperin, 277 Mich App 558; 747 

NW2d 311 (2008), and the Supreme Court granted defendants’ application for leave to appeal. 

VanSlembrouck v Halperin, 481 Mich 918; 750 NW2d 591 (2008). In its order granting leave, 

the Supreme Court directed the parties to address whether “the plaintiffs are entitled to the 

benefit of the tolling provision in MCL 600.5856(c) where the plaintiffs provided a notice of 

intent prior to the minor reaching 10 years of age but filed their complaint after the minor had 

reached 10 years of age,” and “whether MCL 600.5851(7) provides a period of limitation.” Id.

 Following oral argument the Supreme Court vacated its order granting leave, explaining 

“we are no longer persuaded that the question presented should be reviewed by this Court.” 

VanSlembrouck v Halperin, 483 Mich 965; 763 NW2d 919 (2009). 

Thereafter, the parties brought numerous interlocutory issues to this Court’s attention, 

including an application from the circuit court’s order denying defendants’ motion to strike as 

scientifically unreliable the testimony of plaintiffs’ causation experts: Ronald Gabriel, M.D., 

Yitzchak Frank, M.D., and Carolyn Crawford, M.D. This Court issued the following order: 

 In lieu of granting leave to appeal, pursuant to MCR 7.205(D)(2), the 

Court orders the case remanded to the Oakland Circuit Court for a pre-trial 

evidentiary hearing regarding the bases for plaintiffs’ causation experts’ opinions, 

whether those opinions are based on data viewed as legitimate in the context of 

their area of medical expertise, and whether the opinions based on that data were 

reached through reliable principles and methodology. MRE 702; Gilbert v 

DaimlerChrysler Corp, 470 Mich 749, 782-783; 685 NW2d 391 (2004). The 

circuit court shall perform a searching inquiry as to these factors as required by 

MRE 702 and Gilbert and make specific findings regarding those factors on the 

record or in a written opinion. [VanSlembrouck v Halperin, unpublished opinion 

of the Court of Appeals, entered July 12, 2011 (Docket No. 303548).] 

 Defendants predicate error on the trial court’s ruling following the Daubert hearing. 

According to defendants, the trial court abused its discretion in finding the causation theory 

espoused by plaintiffs’ experts scientifically valid, and committed legal error by failing to apply 

the reliability factors set forth in MCL 600.2955. We turn to a discussion of that hearing and our 

analysis of defendants’ Daubert-related arguments. 

III. THE DAUBERT HEARING 

A. THE EVIDENCE 

 Four expert witnesses testified for plaintiffs at the Daubert hearing: Dr. Carolyn 

Crawford, a neonatologist, Drs. Yitzchak Frank and Ronald Gabriel, pediatric neurologists, and 
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Dr. Barry Schifrin, a specialist in maternal-fetal medicine.9

 Plaintiffs submitted dozens of 

medical articles, Markell’s voluminous medical records, the deposition testimony of Dr. 

Pressman, and the depositions of several treating physicians. Defendants presented the 

testimony of Dr. Mary Bedard, a neonatologist, and Dr. Yoram Sorokin, a maternal-fetal 

medicine specialist. Defendants also produced volumes of medical articles for the trial court’s 

review, including the ACOG criteria for hypoxic-ischemic encephalopathy. 

 Dr. Crawford testified that physical trauma to an infant’s brain during the birth process 

can cause bleeding in the brain, and that this fact “has been known for years.” The trauma 

occurs when “you have obstruction to the passage of the head[.]” In such cases, the head “can 

act like a battering ram against the boney pelvis,” resulting in “traumatic brain lesions” 

manifested by brain bleeds. “[T]he process that caused those bleeds,” Dr. Crawford asserted, “is 

what causes the Cerebral Palsy.” 

 Markell’s forehead was noticeably bruised, Dr. Crawford claimed, “[b]ecause that’s 

where [she] got stuck.” According to Dr. Crawford, a “mis-fit” between the infant’s head and 

the mother’s pelvis can lead to trauma.10 Dr. Crawford emphasized that conceptually, it has been 

established “ever since babies have been born” that if a baby’s brain is traumatized during birth, 

permanent damage may result. In her opinion, Markell’s brain injury was attributable to “[l]ack 

of oxygen and lack of blood flow.” She elaborated: “This baby was banged through the pelvis 

for a long period of time. The uterus was stimulated to contract excessively” by Pitocin. 

“[W]here you have so frequent contractions that you don’t provide oxygenated blood to the 

baby’s brain . . . [y]ou cause increased pressure, the blood can’t profuse the brain.” 

 Defense counsel challenged Dr. Crawford’s testimony based on its lack of congruence 

with criteria published in 2003 by the ACOG Task Force on Neonatal Encephalopathy and 

Cerebral Palsy. See American College of Obstetricians & Gynecologists, Neonatal 

Encephalopathy & Cerebral Palsy (American Academy of Pediatrics, 2003). The ACOG report 

declares that to define an acute event during labor and delivery as sufficient to cause cerebral 

palsy, four “essential criteria” must be met: 

 1. Evidence of a metabolic acidosis in fetal umbilical cord arterial 

 blood obtained at delivery (pH < 7 and base deficit ≥ 12 mmol/L) 

 2. Early onset of severe or moderate neonatal encephalopathy in 

 infants born at 34 or more weeks of gestation 

 3. Cerebral palsy of the spastic quadriplegic or dyskinetic type 

 

9

 Maternal-fetal medicine is a subspecialty of obstetrics and gynecology that focuses on high-risk 

pregnancies. 

10 This “mis-fit” is also known as cephalopelvic disproportion. 
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 4. Exclusion of other identifiable etiologies, such as trauma, 

 coagulation disorders, infectious conditions, or genetic disorders[.] [Id. at 

xviii, 74.] 

 Defendants closely questioned Dr. Crawford about the absence of metabolic acidosis, 

reflected by the normal umbilical venous pH. Dr. Crawford replied that acidosis may be absent 

where “there’s been such an arrest of circulation before birth that the acid is still in the tissues 

and your cord gas may look pretty normal.” She continued: “The standard is arterial. That’s 

what’s coming from the baby.” Dr. Crawford then rejected the ACOG standards in their entirety, 

characterizing them as lacking validity and particularly inapplicable when a fetus has sustained 

trauma. She further charged that the ACOG criteria were not peer-reviewed, and had been 

“mainly developed by a bunch of maternal fetal medicine specialists who know zip about 

Cerebral Palsy. . . . It was self-serving to try to cut down on lawsuits[.]”11

 Beaumont’s counsel next brought up the PreventionGenetics report. Dr. Crawford 

admitted having read it, continuing: “And, I researched the topic and it has absolutely no bearing 

on the injuries that she sustained during labor and delivery and were obvious at birth. Absolutely 

no relationship.” PCH-2, Dr. Crawford claimed, is “an incidental finding that came up 

subsequently after . . . variants of other types of brain malformations were eliminated.” Dr. 

Crawford conceded that Markell has PCH. She maintained that this genetic defect has “nothing 

to do with the insult and the injuries that she sustained.” In response to the court’s questioning 

Dr. Crawford explained: 

 [A]n example . . . would be if you have a child with Downs Syndrome and 

you drop them on the floor and they sustain head trauma. It’s like saying well this 

child was going to have impaired mental development anyway so the mental 

development that’s impaired is due to the genetic defect not the fact that you 

dropped him on the head and he had head trauma. 

 In other words, you can have a child who’s [sic] potential is compromised 

by events that happened to it at the time of birth even though it might have a 

genetic defect. So, you can have a child that maybe has the capability of 

achieving an IQ of let’s say 80 . . . [b]ut, you do something to that child and you 

traumatize them and you let them -- you cause birth trauma, you cause hypoxic 

ischemic injury and their potential becomes 40 or 30. 

Dr. Crawford resisted defense counsel’s efforts to cross-examine her with two medical journal 

articles discussing PCH-2. She insisted that PCH-2 didn’t fit Markell because “those babies start 

out with small heads and she didn’t,” but admitted, “there are maybe some children [with PCH2] that are not the majority” who have a normal head size at birth and later develop 

microcephaly. 

 

11 The report itself describes that it was subject to peer review. Id. at xix. 
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 Dr. Yitzchak Frank, a pediatric neurologist, emphasized that Markell’s inability to suck 

and grasp during the first days of her life were attributable to brain injury that occurred during 

labor and delivery, as was her gradual acquisition of microcephaly. In Dr. Frank’s view, the 

brain injury occurred due to “lack of blood supply. It was an ischemic abnormality to the brain.” 

He admitted, however, that there was “[n]o significant metabolic acidosis.” 

 Next, Dr. Gabriel set forth a “quadripartite” summary of the cause of Markell’s 

neurological injuries. First, he proposed that Markell was a “perfectly normal child” prenatally. 

Her heart rate during Kimberly’s labor initially appeared normal and her head circumference at 

birth was “perfectly normal.” Second, during labor and delivery “[w]e know that there was 

excessive uterine activity with hyperstimulation, cephalopelvic disproportion resulting in all the 

things you see” in the photographs taken of Markell immediately after her birth. Further, “there 

was severe asphyxia, virtually dead baby with an Apgar of one which means there was an 

abnormally low heart rate at birth . . . but also . . . before birth.” After resuscitation, “she 

demonstrated major acute neurological abnormalities, hypotonia, abnormal reflexes . . . . Did not 

suck. Did not cry without stimulation. Had no grasp. . . . [S]he had tremors and . . . was treated 

for convulsions.” Thus, Dr. Gabriel summarized, “we know that she had an acute injury to the 

brain following the delivery complications.” 

 Dr. Gabriel pointed out that the venous umbilical blood gas was “the mother’s blood,” 

and that no arterial umbilical blood gas had been obtained. He noted that the Beaumont medical 

records used the term “perinatal depression,” summarizing “this was a child that was acutely 

injured during the later stages of the delivery process.” 

 Third, Markell has both spastic and rigid quadriparesis and “extrapyramidal” movements 

“that go along with this kind of injury,” a seizure disorder, and “language, intelligence, and 

behavioral retardation.” Her head circumference started out at the 90th percentile, and “rapidly 

descended down to severe microcephaly which she now exhibits.” According to Dr. Gabriel, the 

microcephaly developed as a consequence of her birth trauma. Dr. Gabriel described the fourth 

part of his analysis as follows: 

[A]bnormal non-[physiological] pressures on the [calvarium], that’s the head of 

the fetus, can produce brain damage by two mechanisms. Number one, by 

stretching, tearing, and distorting the vessels and the contents of the brain because 

the skull plates are wide open and distensible. 

 And number two, by virtue of reduced blood flow to the brain because the 

high pressure, the abnormal, the non-physiological [pressure] on the skull plates, 

what we call the calvari[um], during the delivery process increases the pressure in 

the brain which in turn reduces the ability of the arteries to supply the brain with 

blood. The artery pressure has to fight against the increased pressure in the brain. 

As a consequence blood flow diminishes and the cerebral blood flow diminishes 

to a point where ischemia can occur. It can occur global or [diffused] or focal or 

regional or multi-focal. 

 Dr. Gabriel summarized, “the mechanical distortion of the vessels tearing and bleeding,” 

and “lack of blood flow, the ischemia which in turn results in reduced oxygen” had injured 
-13- 

Markell’s brain. As support for this theory he repeatedly referenced the following excerpt from a 

neonatal neurology textbook: 

 Determination of intracranial pressure is of particular importance in 

neonatal neurological disorders, since marked alterations of this pressure have 

major implications for diagnosis and management. Intracranial pressure 

alterations per se may lead to deleterious consequences via two basic 

mechanisms, disturbances of CBF [cerebral blood flow] and shifts of neural 

structures within the cranium. With the former consequence, cerebral perfusion 

pressure is related to the mean arterial blood pressure minus the intracranial 

pressure. Therefore when intracranial pressure increases, cerebral perfusion 

pressure decreases; if intracranial pressure increases markedly, cerebral 

perfusion pressure declines below the lower limit of autoregulation and CBF 

may be impaired severely. . . . [Volpe, Neurology of the Newborn (W.B. 

Saunders Co, 4th ed, 2001), p 153 (italics in original, bold added).][12]

Dr. Gabriel denied that there has ever been a “debate in the . . . field of medicine that mechanical 

injury or trauma to a child’s brain can produce brain damage,” emphasizing that he has never 

seen anything “in the world’s medical literature that disputes this point.” 

 Like Dr. Crawford, Dr. Gabriel conceded that Markell has PCH, but opined that “the rest 

of the brain which is 89 percent of the brain” was normal before her birth. He claimed, “[W]e 

can function near normally without a cerebellum,” expounding: 

You can have a malformed [brain] for any reason and the baby goes through a 

very bad labor and delivery for whatever reasons, could come out with additional 

damage as a consequence of the hypoxic ischemia or the mechanical trauma on 

top of what the baby may have had from the anomaly alone. 

 Dr. Schifrin, a board certified specialist in obstetrics and maternal-fetal medicine, began 

his testimony by distinguishing between the terms “hypoxia” and “ischemia:” 

Hypoxi[a] is a deficien[c]y of oxygen availability. Ischemia is a deficiency of 

oxygen availability related specifically to a lack of blood flow. So, if I were to 

reduce the amount of oxygen in the room you would be progressively hypoxemic, 

. . .you would have less oxygen in your blood, but under no circumstances . . . 

under those conditions would I interfere with any blood flow in any vessel in your 

body. 

 

12 Defendants’ primary pediatric neurology expert, Dr. Steven Leber of the University of 

Michigan, agreed at trial that the Volpe text is “the preeminent textbook” of neonatal neurology. 

As to the fourth edition, he commented: “[h]e’s probably the best textbook there is.” 
-14- 

Ischemia, on the other hand, involves “a deprivation of blood flow,” which “not only deprives 

the brain of oxygen but it deprives it of everything else carried with the blood including sugar for 

energy.” 

 Maximum oxygen exchange between baby and mother occurs when the uterus is not 

contracting. “The greater the amount of uterine activity . . . the greater the interference of 

oxygen availability.” When the uterus contracts, Dr. Schifrin testified, the baby raises its blood 

pressure “slightly to overcome the rise in pressure in the uterus,” thereby maintaining adequate 

blood flow to the brain. Usually, this mechanism allows a baby to preserve enough blood flow 

during contractions to protect the brain from injury. But the baby’s ability to autoregulate flow 

in this manner may be overwhelmed “if the pressure is so high either because of the duration of 

the contractions” or when the “added effects of pushing” increase the amplitude of the 

contractions. Ischemia occurs when the duration or intensity of the uterine contractions 

overcomes the baby’s ability to raise its blood pressure to compensate for the pressure being 

exerted by the uterus. In such circumstances, the baby may suffer an ischemic (rather than an 

hypoxic) injury. 

 The electronic fetal monitor strip “tell[s] you exactly what is happening.”13 At the outset 

of Kimberly’s labor, the electronic fetal monitor tracing reflected “no evidence whatsoever of 

oxygen debt, no evidence whatsoever of ischemia.” But during the second stage of Kimberly’s 

labor, Dr. Schifrin opined, Kimberly’s “uterine activity [was] simply excessive” due to the 

administration of Pitocin. Pitocin increased the frequency of the contractions, decreased the 

interval between contractions, and raised the resting tone of Kimberly’s uterus. 

 By the end of the tracing, there were “severe decelerations” of the baby’s heart rate, a 

rising baseline heart rate, and absent heart rate variability. Dr. Schifrin termed this “an ominous 

pattern, a terribly worrisome pattern. It is incompatible with any notion of [a] normally adapted 

fetus.” The baby did not suffer injury due to “a relentless failure of oxygen availability. . . . This 

baby [was] having problems getting blood to its brain.” Dr. Schifrin termed the electronic fetal 

monitor tracing “inescapable medical evidence” that during the second stage of Kimberly’s 

labor, the contractions and maternal pushing efforts overcame Markell’s ability “to provide 

enough blood flow to the brain.” In his view, the changes on the heart rate monitor “can only be 

consistent with an adverse response of the fetus to . . . a [sic] severe repetitive ischemic events.” 

 Dr. Mary Bedard, a neonatologist, testified as the defense counter to Dr. Crawford. She 

opined that based on the imaging studies, Markell had not sustained any lasting injury to the 

substance of her brain tissue caused by lack of oxygen, lack of blood flow, ischemia, or direct 

mechanical trauma. The trauma caused only “superficial” injury; in Dr. Bedard’s view, 

“intraventricular bleeding is . . . not a traumatic hemorrhage.” The subarachnoid hemorrhage 

was traumatic, but is common in vaginal deliveries. Dr. Bedard summarized: “[W]hat you really 

see in the literature in terms of abnormal labors, etcetera, causing brain damage is through 

 

13 Dr. Schifrin testified that he was one of the developers of electronic fetal monitoring during 

the 1970s, and has been involved in the continuing development of this technology ever since. 
-15- 

impaired blood supply, but not direct mechanical trauma to the brain in the absence of an 

operative delivery using forceps or a vacuum extractor.” 

 Dr. Bedard conceded that “under some circumstances you can have enough trauma that 

causes brain injury but that’s not the circumstances in this particular case.” Rather, Dr. Bedard 

considered Markell’s presentation entirely consistent with PCH-2: “The articles that describe the 

symptoms and clinical course fit this child to a T.” According to the two articles submitted to 

the trial court concerning PCH, every child with PCH-2 “is profoundly retarded and [has] a 

spastic quadriplegi[a].” 

 Dr. Yoram Sorokin, a maternal-fetal medicine specialist (the defense foil to Dr. Schifrin) 

testified that the ACOG criteria establish the elements necessary for a diagnosis of hypoxic 

ischemic encephalopathy, and Markell did not meet them. Dr. Sorokin opined that plaintiffs’ 

experts’ head compression theory “is not accepted in the medical literature.” He insisted that 

none of the articles supplied by plaintiffs supported that head compression during labor could 

cause brain damage. 

 On cross-examination, Dr. Sorokin admitted that hyperstimulation of the uterus can cause 

reduction of blood flow to the fetal brain. He disagreed, however, that this results in brain 

damage: 

 The scientific literature . . . uses the scientific method in order to arrive at 

the conclusion if something causes something else, okay. In this particular case 

we’re talking about a mechanism of compression that’s the one mechanism and 

the mechanism of pressure in the vagina. And, those mechanisms I’m saying the 

medical literature which is scientific literature which has tried to show that that 

causes brain damage and has not been successful and it’s not in the medical texts. 

 Defendants placed in evidence the depositions of two additional experts, Drs. Leber and 

Quint, the ACOG criteria and accompanying task force report, approximately a dozen articles 

and textbook excerpts, the PreventionGenetics report attesting that Markell has PCH-2, and 

various other materials. 

B. THE TRIAL COURT’S OPINION 

 Following the Daubert hearing, Judge Nichols issued a 17-page amended opinion and 

order finding plaintiffs’ experts’ testimonies “convincing, credible and reliable by a 

preponderance of the evidence.” The opinion commenced with a detailed summary of the “facts 

and medical evidence” on which Judge Nichols relied. Judge Nichols next discussed the 

“applicable law,” citing MRE 702 and several leading cases, including Gilbert, 470 Mich 749, 

and Chapin v A & L Parts, Inc, 274 Mich App 122, 127; 732 NW2d 578 (2007). The opinion 

specifically acknowledged, “[t]he trial court must also consider all of the factors listed in MCL 

§ 600.2955(1),” continuing, “While the trial court must consider all seven factors enumerated in 

the statute, it does not require that each and every one of those seven factors must favor the 

proffered testimony.” 
-16- 

 Judge Nichols then recounted in considerable detail the professional qualifications and 

testimony of each witness. Judge Nichols’s legal rulings, rather than his factual findings, have 

triggered defendants’ appellate challenges. 

 Judge Nichols acknowledged that in evaluating the evidence, he was required “to 

consider the requisites of scientific testing, peer review, generally accepted standards, potential 

error rate, degree of acceptance, and reliability of use by other experts and use in outside 

litigation[,] requisites of MCL 600.2955(1).” After twice reciting that he was bound to consider 

the factors set forth in MCL 600.2955(1), Judge Nichols criticized having to do so: 

 Both sides, but particularly Defendant[s], took it for granted that the 

inquiry here was a scientific one, that is, that Plaintiff[s’] theory of causation was 

not well based in science and was too novel or not generally accepted to be 

reliable. One Michigan case even appears to hold that a trial court must consider 

the seven factors embodied in MCLA 600.2955. Clerc v Chippewa Co War 

[Mem] [Hosp], 477 Mich 1067, 1068[; 729 NW2d 221 (2007)]. That law was not 

designed for the judicial system, but rather for those groups supporting it in the 

1990’s. In other words, it was not sound judicial doctrine a court should apply 

and utilize as has now been established by MRE 702 as amended in 2004.

 With no proof as to either medicine or science, Defendant[s have] 

assumed, incorrectly this Court believes, that the Court’s ruling is confined to 

science and a scientific methodology. But medicine is not necessarily science, 

and MRE 702 is not limited to just scientific knowledge; it reads in the 

disjunctive to also include technical or other specialized knowledge. . . . For 

the reasons that follow, this Court believes the latter applies to the case at bar, 

and that the remaining aspects of MRE 702 should apply without some of the 

restrictive and limiting aspects of MCLA 600.2955. [Bold in original, italics 

added]. 

 Judge Nichols proceeded to rationalize that MCL 600.2955 does not apply in this case 

because “medicine,” in contrast with basic sciences such as “anatomy, biology, biochemistry, 

physiology, etc.,” does not strictly qualify as “scientific.” Rather, Judge Nichols propounded, 

the practice of medicine constitutes “technical or other specialized knowledge under MRE 702.” 

 Judge Nichols then considered whether technical or other specialized knowledge would 

assist the trier of fact. In making that determination, Judge Nichols incorporated a number of 

“salient facts” from the medical record, echoing those recited at the outset of his opinion. Judge 

Nichols’s central findings are located in the following two paragraphs: 

 The issue to be decided by this Court is whether the testimony of 

Plaintiff[s’] experts, as it relates to labor and delivery causing compression to the 

head and brain, ischemia and brain damage, is reliable. Here the Court finds as a 

fact that multiple factors can be involved. Those factors include, but are not 

limited only to, mother’s weight, birth weight of the baby, amount of stimulation 

to the birth canal, contractions and contraction rate, medicines administered, 

blood flow, physical trauma to the fetus/baby and oxygen supply. Again this list 
-17- 

is not inclusive but only some of the factors at work in this process, a clinical 

process in medicine called labor. The Court finds and holds from all five 

witnesses testifying here, as a matter of fact and law, that in combination such 

factors can do [sic] result in cerebral palsey [sic], mental retardation, motor 

dysfunction and seizures. The Court further finds the following operative facts, 

among others to be in dispute, Plaintiff[s’] experts testifying one way, 

Defendant[s’] the other: 

 1. The application of ACOG principles, particularly as to whether its 

four point criteria for whether an event such as this causes cerebral 

palsey [sic], is in dispute. Indeed, it may not even apply, and 

Defendant[s’] experts appear to be in error in saying that it does 

because no arterial blood was tested. Moreover, Defendant[s’] 

experts agree there was trauma, albeit minor, and that must [be] 

ruled out in criteria four. However, determining the reliability of 

Defendant[s’] witnesses was not the charge given this Court by the 

Court of Appeals, and so this Court makes only an observation of 

conflict in testimony and does not in this opinion rule on their 

admissibility or reliability; 

 2. Whether this was an ischemic or hypoxic event, and significance 

of that; 

 3. Whether that trauma here was major or minor; 

 4. Whether that trauma adversely affects blood flow to the brain and 

did so here; 

 5. Whether the labor here can be described as difficult; 

 6. The effects and extent of Pitocin used; 

 7. The extent and effect of blood on Markell’s brain; 

 8. The significance and extent of bruising to Markell. 

 Incorporating the substance of the experts’ testimony . . . the Court also 

finds each of Plaintiff[s’] Expert[s’] testimonies convincing, credible and reliable 

by a preponderance of the evidence. Specifically, the Court finds their testimony 

would assist the jury in understanding the factors at work during labor and 

delivery, and that from their knowledge, training and experience, they used 

sufficient facts and data involving principles and methods from both their training 

and clinical experience and applied them to the facts of the case in a reliable 

manner. [Bold in original]. 

 Judge Nichols concluded by criticizing the Daubert hearing and MCL 600.2955: 
-18- 

 After almost three days of testimony and five witnesses, two of whom 

were for Defendant[s], this Court is hard-pressed to disagree with Plaintiff[s] that 

this hearing was an abuse of the Daubert hearing proceeding by Defendant[s]. 

Both of Defendant[s’] experts agree there is such a thing as trauma and ischemic 

injury, but simply that they do not exist here to the level testified to by 

Plaintiff[s’] experts. This Court finds as a fact there is evidence of it and any 

argument about it is a matter of degree. While Defendant[s] argue[] that 

Markell’s injuries are genetic, that fact, if proven, merely establishes its theory of 

the case. It does not prove that a birth trauma theory is unreliable. In fact, it is 

conceivable the jury might find both. Based on the Plaintiff[s’] experts’ 

testimony, the medical reports and records relied upon, and the literature in 

support, this Court finds the opinions are based on legitimate data within their 

field of expertise, that they are reliable and that they were reliably applied in this 

case. 

 Finally, this Court believes that to superimpose the requisites of MCL 

600.2955 upon MRE 702 is unduly restrictive and adds both unnecessary and 

unsound barriers to admissibility which operates to preclude legitimate access to 

the very people for whom courts exist: to serve the public, those are who have 

journeyed to the one and only place in our society that has as its sole purpose the 

resolution of disputes that arise during the course of human affairs. It does that by 

applying unsound judicial doctrine to medicine: the application of scientific 

methods and principles to something that is more than science, but also an art. It 

is that what we call medicine and is encapsulated in the medical record and 

reports. While science is intimately involved, it was not and cannot be the only

knowledge used in this case. For both legal and ethical reasons we cannot and do 

not subject such opinions regarding effects on the fetus/baby scientific testing and 

replication, peer review, error rates and general principles of acceptance/rejection. 

There is, instead, the human factor, human discernment, wisdom and judgment, 

bedside manners and experience, patient histories, medical devices and tests, 

differential diagnoses and pharmaceutical modalities involved as well. It is, in 

other words, a distinct human profession we call medicine revealed through 

medical records. In this Court’s opinion MCLA 600.2955 should be held 

ineffective under MRE 101 and MRE 702 should instead be applied to 

malpractice cases, since that itself is sound judicial doctrine embracing the best of 

legal principles that can operate and be applied to eliminate novel ideas and junk 

science in our courtroom. [Underlining in original]. 

 Before examining Judge Nichols’s opinion, we describe the controlling legal framework. 

C. GOVERNING LEGAL PRINCIPLES 

 The admission of expert testimony is governed by MRE 702, which 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, 
-19- 

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. 

MRE 702 “requires trial judges to act as gatekeepers who must exclude unreliable expert 

testimony.” Staff Comment to 2004 Amendment of MRE 702. In Gilbert, 470 Mich at 782, our 

Supreme Court elaborated that the trial court’s gatekeeper role 

applies to all stages of expert analysis. MRE 702 mandates a searching inquiry, 

not just of the data underlying expert testimony, but also of the manner in which 

the expert interprets and extrapolates from those data. Thus, it is insufficient for 

the proponent of expert opinion merely to show that the opinion rests on data 

viewed as legitimate in the context of a particular area of expertise (such as 

medicine). The proponent must also show that any opinion based on those data 

expresses conclusions reached through reliable principles and methodology. 

[Emphasis in original.] 

 Before admitting expert scientific testimony, the trial court must satisfy its “fundamental 

duty” of ensuring that the expert testimony is reliable and relevant. Id. at 781. MRE 702 

explicitly incorporates the Daubert standards of admissibility regarding an expert’s testimony. 

Id. This task requires that the proponent of the testimony establish its reliability “by showing 

that it ‘is based on sufficient facts or data,’ that it ‘is the product of reliable principles and 

methods,’ and that the proposed expert witness ‘has applied the principles and methods reliably 

to the facts of the case.’” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008), 

quoting MRE 702. 

 This analysis does not hinge on discovering “absolute truth,” or resolving “genuine 

scientific disputes.” Id. at 137. “[I]t would be unreasonable to conclude that the subject of 

scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science.” 

Daubert, 509 US at 590. Rather, the trial court is tasked with filtering out unreliable expert 

evidence. “The inquiry is into whether the opinion is rationally derived from a sound 

foundation.” Chapin, 274 Mich App at 139. “The standard focuses on the scientific validity of 

the expert’s methods rather than on the correctness or soundness of the expert’s particular 

proposed testimony.” Unger, 278 Mich App at 217-218. An expert’s testimony meets the 

Daubert standard when the expert “employs in the courtroom the same level of intellectual rigor 

that characterizes the practice of an expert in the relevant field.” Kumho Tire Co, Ltd v 

Carmichael, 526 US 137, 152; 119 S Ct 1167; 143 L Ed 2d 238 (1999). As the United States 

Supreme Court emphasized in Daubert, 509 US at 594-595: 

The inquiry envisioned by Rule 702 is . . . a flexible one. Its overarching subject 

is the scientific validity and thus the evidentiary relevance and reliability—of the 

principles that underlie a proposed submission. The focus, of course, must be 

solely on principles and methodology, not on the conclusions that they generate. 

 We turn our attention to whether the scientific evidence produced during the Daubert

hearing met the requisite reliability standards. 
-20- 

D. OUR STANDARD OF REVIEW 

 We review for an abuse of discretion a circuit court’s evidentiary rulings. People v 

Farquharson, 274 Mich App 268, 271; 731 NW2d 797 (2007). When our inquiry concerns 

whether the trial court correctly applied a rule of evidence, our review is de novo. People v 

King, 297 Mich App 465, 472; 824 NW2d 258 (2012). Thus, we apply de novo review in 

assessing whether the trial court performed its gatekeeping role in conformity with the legal 

principles articulated in Gilbert, 470 Mich 749, in which our Supreme Court adopted the 

Daubert framework. If the trial court correctly executed its gatekeeping role, we review its 

ultimate decision to admit or exclude scientific evidence for an abuse of discretion. Craig v 

Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). When a trial court admits evidence 

based on an erroneous interpretation or application of law, it necessarily abuses its discretion. 

Kidder v Ptacin, 284 Mich App 166, 170; 771 NW2d 806 (2009). 

E. ANALYSIS 

 Defendants challenge Judge Nichols’s Daubert ruling on four grounds: (1) Judge Nichols 

“stubbornly refused to apply” the § 2955 factors “to the reliability equation;” (2) the articles 

relied upon by Judge Nichols are “outdated” and lack applicability to the facts of this case; (3) 

plaintiffs’ expert witnesses failed to reconcile their opinions with the “objective fact” of 

Markell’s genetic disorder, and (4) this Court has consistently rejected as scientifically unreliable 

plaintiffs’ “acute intrapartum hypoxic event/mechanical trauma theory.” We address each 

argument in turn. 

1. MCL 600.2955 

 Defendants are correct that Judge Nichols adamantly declared his opposition to applying 

MCL 600.2955(1) to the facts of this case. Had Judge Nichols actually failed to consider and 

apply the statutory criteria, he would have abused his discretion. A court acting as an expert 

testimony gatekeeper may not “‘perform the function inadequately.’” Gilbert, 470 Mich at 780, 

quoting Kumho Tire Co, 526 US at 158-159 (SCALIA, J., concurring). This means that a trial 

court abuses its discretion by omitting a necessary component of its gatekeeping obligation. But 

despite Judge Nichols’s gratuitous criticism of MCL 600.2955(1) and his disavowal of its 

mandate, he employed all relevant statutory factors when drawing his conclusions. Those factors 

he failed to mention either do not apply to this case or do not alter the § 2955 analysis. Judge 

Nichols’s ostensible rejection of MCL 600.2955(1) therefore qualifies as harmless. 

 Consistent with its “gatekeeper” role, a trial court must consider the factors listed in MCL 

600.2955(1). Clerc, 477 Mich at 1068. The Legislature dictated that the following factors 

inform a trial court’s analysis under MRE 702: 

 (1) In an action for the death of a person or for injury to a person or 

property, a scientific opinion rendered by an otherwise qualified expert is not 

admissible unless the court determines that the opinion is reliable and will assist 

the trier of fact. In making that determination, the court shall examine the opinion 

and the basis for the opinion, which basis includes the facts, technique, 
-21- 

methodology, and reasoning relied on by the expert, and shall consider all of the 

following factors: 

 (a) Whether the opinion and its basis have been subjected to scientific 

testing and replication. 

 (b) Whether the opinion and its basis have been subjected to peer 

review publication. 

 (c) The existence and maintenance of generally accepted standards 

governing the application and interpretation of a methodology or technique and 

whether the opinion and its basis are consistent with those standards. 

 (d) The known or potential error rate of the opinion and its basis. 

 (e) The degree to which the opinion and its basis are generally 

accepted within the relevant expert community. As used in this subdivision, 

“relevant expert community” means individuals who are knowledgeable in the 

field of study and are gainfully employed applying that knowledge on the free 

market. 

 (f) Whether the basis for the opinion is reliable and whether experts in 

that field would rely on the same basis to reach the type of opinion being 

proffered. 

 (g) Whether the opinion or methodology is relied upon by experts 

outside of the context of litigation. 

 (2) A novel methodology or form of scientific evidence may be 

admitted into evidence only if its proponent establishes that it has achieved 

general scientific acceptance among impartial and disinterested experts in the 

field. 

 (3) In an action alleging medical malpractice, the provisions of this 

section are in addition to, and do not otherwise affect, the criteria for expert 

testimony provided in [MCL 600.2169]. [MCL 600.2955.] 

Four of the seven factors identified in MCL 600.2955 (subparts (a)-(d)) derive directly from 

Daubert, 509 US at 593-594, and overlap with the components of MRE 702. This Court has 

held that each of these statutory factors need not favor the proposed expert’s opinion. Chapin,

274 Mich App at 137 (opinion by DAVIS, J.). It suffices that “the opinion is rationally derived 

from a sound foundation.” Id. at 139. In Kumho Tire Co, 526 US at 151, the United States 

Supreme Court explained that a similar approach governs the application of FRE 703: “Daubert . 

. . made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors 

do not all necessarily apply even in every instance in which the reliability of scientific testimony 

is challenged.” 
-22- 

 We agree with Judge Nichols that the following § 2955 factors are not germane to this 

case: “(a) Whether the opinion and its basis have been subjected to scientific testing and 

replication,” and “(d) The known or potential error rate of the opinion and its basis.” Defendants 

do not explain how plaintiffs’ theories of fetal head compression could be subjected to scientific 

testing and replication in human children or evaluated regarding an “error rate.” Nevertheless, 

several medical articles submitted by plaintiffs describe scientific studies involving fetal sheep. 

These studies lend support to plaintiffs’ causation theory. 

 Two of the § 2955 factors require that the trial court examine the scientific literature in 

determining the reliability of an expert’s causation theory. Specifically, the court must evaluate: 

“(b) Whether the opinion and its basis have been subjected to peer review publication,” and “(g) 

Whether the opinion or methodology is relied upon by experts outside of the context of 

litigation.” In pursuit of this mandate, the parties inundated the trial court with medical 

literature. Plaintiffs’ initial literature filing encompassed more than 600 pages. Defendants’ 

literature combined with plaintiffs’ additional submissions yielded more than 1,000 pages of 

material for the trial court’s review.14 

 Defendants charge that plaintiffs failed to establish factors (b) and (g), and that no peerreviewed literature used outside the context of litigation supports plaintiffs’ causation opinions. 

We now consider the plethora of articles bearing these factors in mind. 

 Multiple peer-reviewed articles supplied to Judge Nichols lent credence to plaintiffs’ 

experts’ causation theory. Specifically, several articles and textbook excerpts substantiated that a 

traumatic birth process can cause fetal head compression, which in turn may result in brain 

bleeds and permanent neurological injury. Dr. Crawford’s thesis that in the presence of 

cephalopelvic disproportion the fetal head acts as a “battering ram” against the maternal pelvis 

emanates from a 2007 article published in a peer-reviewed obstetrical journal. This article 

corroborates that brain bleeding may result from head trauma: 

 Virtually all significant fetal head and neck injuries that are associated 

with vaginal (both spontaneous and operative) delivery can be explained by the 

use of force to overcome cephalopelvic disproportion. Cephalopelvic 

disproportion is a relative term as each specific maternal fetal pair is unique; 

unique fetal size and positioning in the maternal pelvis and unique pelvis size and 

shape. As the fetal head descends into the pelvis, it can be likened to a battering 

ram taking the brunt of the pelvic resistance leading to molding to allow passage. 

Molding of the fetal cranium eventually can overcome the disproportion, but 

potentially at a cost. Excessive molding leads to distortion of the relatively fixed 

 

14 This approach to the statutory mandate does not strike us as particularly helpful. Rather than 

engaging in mutual “document dumps,” the process and the trial court would have been better 

served by careful selection of a handful of the most pertinent articles for discussion during the 

experts’ testimonies. 
-23- 

tentorium and falx structures[15] and subsequent tearing leading to subdural 

hemorrhages. . . . 

 The scalp is the fetal defense to the resistance of the birth canal tissues, 

both soft tissue and the bony pelvis. With significant resistance and repetitive 

pushing against this resistance, shear forces can be generated leading to scalp 

trauma and cephalohematomas. [Towner and Ciotti, Operative Vaginal Delivery: 

A Cause of Birth Injury Or Is It?, 50 Clinical Obstetrics & Gynecology 563, 571 

(2007).] 

A peer-reviewed medical journal article published in 1983 similarly explains that “[t]he 

mechanical forces of labor subject the infant’s head to considerable compression, shearing, and 

molding. Intrapartum and neonatal death can occur from mechanical trauma to the brain during 

birth.” Sorbe & Dahlgren, Some Important Factors in the Molding of the Fetal Head During 

Vaginal Delivery – A Photographic Study, 21 Int’l J Gynaecology & Obstetrics 205 (1983). 

 Other peer-reviewed articles reinforced plaintiffs’ experts’ theory that compression of a 

fetus’s skull during delivery may permanently compromise neurologic function. “Compression 

of the fetal skull may result from two sources: endogenous: the bony pelvis, the myometrium 

[uterus], the cervix, and the perineum; and exogenous[,]” the obstetrician’s hand, forceps, or a 

vacuum extractor. Kelly, Compression of the Fetal Brain, 85 Am J Obstetrics & Gynecology 

687 (1963). This article continues: “Compression of the fetal skull may produce brain damage 

by one of three mechanisms,” including that: 

[t]he increased pressure is transmitted inside the calvarium where it may 

overcome the intravascular blood pressure resulting in arrest of the cerebral 

circulation. The ensuing development of anoxia and asphyxia may damage not 

only the brain cells, but also the blood vessel walls, making them liable to rupture 

when exposed to hypertension. [Id.] 

 The Volpe textbook also supports that mechanical trauma can damage a fetus’s brain: 

In this discussion, . . . “perinatal trauma” refers to those adverse effects on the 

fetus during labor or delivery and in the neonatal period that are caused primarily 

by mechanical factors. Thus specifically excluded are the disturbances of labor 

and delivery that lead principally to hypoxic-ischemic brain injury . . . . 

(Nevertheless, overlap between mechanical trauma and the occurrence of 

hypoxic-ischemic cerebral injury is important to recognize because perinatal 

mechanical insults may result in primarily hypoxic-ischemic cerebral injury, 

 

15 The falx and the tentorium are folds of the dura (the membrane covering the brain) that 

separate the major substructures of the brain. The Brain & the Cranial Nerves, 

<www.linguistics.ucla.edu/people/ladefoge/manual%20files/chapter5.pdf > (accessed October 2, 

2014). 
-24- 

probably secondary to disturbances of placental or cerebral blood flow.) 

[Volpe, Neurology of the Newborn at 813 (italics in original, bold added).] 

 In a 1952 article, the author specifically identifies “trauma due to cephalopelvic 

disproportion” as a cause of cerebral palsy, elaborating: 

 Most of the traumatic causes of brain injury at birth may be considered as 

physiologic. Just being born is a difficult hurdle to pass. In the birth process, the 

baby uses its head for a battering ram propelled by strong uterine contractions. 

When the child’s head is large and the pelvis small, the natural safeguards which 

allow the skull to conform to the shape of the birth canal may be insufficient to 

protect the brain from injury. [Deaver, Etiological Factors in Cerebral Palsy, 28 

The Bulletin: NY Acad Med 532, 536 (1952).] 

 At least two articles supported Dr. Gabriel’s opinion that excessive uterine activity 

lowers the amount of oxygenated blood perfusing the fetal brain. In 2007, the American Journal 

of Obstetrics and Gynecology, a peer-reviewed journal, published a study evaluating “how UA 

[uterine activity] affects fetal outcome.” The researchers analyzed 1,433 electronic fetal monitor 

tracings, and compared them with the newborn infants’ umbilical artery pH. Bakker et al, 

Elevated Uterine Activity Increases the Risk of Fetal Acidosis at Birth, 196 Am J Obstetrics & 

Gynecology 313.el (2007). The study reported that “[i]ncreased uterine activity during the first 

and second stage of labor is associated with an increased incidence of lower pH values in the 

umbilical artery.” Id. at 313.e3. 

 Markell’s umbilical artery pH was not measured. However, the study also includes the 

following pertinent conclusion: “Excessive UA [uterine activity], by means of hyperstimulation 

and tachysystole, shortens the relaxation time. This results in higher levels of cerebral 

deoxygenated hemoglobin, lower levels of oxygenated hemoglobin, and decreased intracerebral 

saturation.” Id. at 313.e5. The article continues: “A contraction rate of more than 4 per 10 

minutes is considered ominous, leading to insufficient time for placental perfusion and iatrogenic 

fetal distress.” Id.

16 A second study of 10 fetuses, also published in a peer-reviewed journal, 

reached a more easily understood conclusion: “These data provide evidence of a direct relation 

between the frequency of uterine contractions and changes in human fetal cerebral oxygen 

saturation, and they indicate a critical contraction interval below which cerebral saturation is 

likely to fall.” Peebles et al, Relation Between Frequency of Uterine Contractions & Human 

Fetal Cerebral Oxygen Saturation Studied During Labour by Near Infrared Spectroscopy, 101 

Brit J Obstet & Gynaecology 44, 47 (1994). These articles generally validate that cephalopelvic 

disproportion and difficult, traumatic delivery can cause fetal distress, compression of the fetal 

skull, brain bleeds, and neurologic injury, satisfying MCL 600.2955(b) and (g).17

 

16 Dr. Schifrin testified that in his view, Kimberly’s “uterine activity . . . after the administration 

of [Pitocin] . . . is simply excessive.” Dr. Crawford testified that Kimberly had “tachsystole.” 

17 Subsection (g) requires an assessment of whether “the opinion or methodology is relied upon 

by experts outside the context of litigation.” Defendants have not contended otherwise. As 
-25- 

 Plaintiffs’ experts’ testimony does not satisfy one § 2955 factor: “(c) The existence and 

maintenance of generally accepted standards governing the application and interpretation of a 

methodology or technique and whether the opinion and its basis are consistent with those 

standards.” The ACOG standards reflect a general consensus in the medical community 

regarding the criteria necessary to demonstrate hypoxic ischemic injury. However, the ACOG 

standards include as an essential requirement an umbilical arterial blood gas demonstrating a pH 

of less than 7.0. An umbilical arterial blood gas was not obtained here. Given this discrepancy, 

Judge Nichols did not abuse his discretion by finding the ACOG criteria inapplicable to his 

reliability analysis. 

 The remaining factors focus on whether the expert’s testimony is “generally accepted” 

among other experts in the field, and whether other experts would reach similar conclusions: 

 (e) The degree to which the opinion and its basis are generally 

accepted within the relevant expert community. As used in this subdivision, 

“relevant expert community” means individuals who are knowledgeable in the 

field of study and are gainfully employed applying that knowledge on the free 

market. 

 (f) Whether the basis for the opinion is reliable and whether experts in 

that field would rely on the same basis to reach the type of opinion being 

proffered. 

Both sides’ experts repeatedly opined that their causation views were generally accepted in the 

medical community, and that the opposing views were not.18 And all testifying experts were 

“gainfully employed” in the practice of their medical specialties rather than simply “experts for 

hire.” Judge Nichols ruled that plaintiffs’ experts’ opinions “are based on legitimate data within 

their field of expertise, that they are reliable and that they were reliably applied in this case.” 

Accordingly, he applied these two criteria while claiming not to have done so, the evidence 

supported his conclusion, and we discern no abuse of discretion. 

Judge Nichols observed in his written opinion, the views expressed by all medical experts in this 

case derive from “principles and methods from . . . their training and clinical experiences[.]” 

Unlike in Daubert, the medical literature relied upon by the experts was, with the exception of 

one or two articles, written by physicians other than the testifying experts. See Daubert v 

Merrell Dow Pharm, Inc, 43 F3d 1311, 1314 (CA 9, 1995) (Daubert II) (“[A]part from the small 

but determined group of scientists testifying on behalf of the Bendectin plaintiffs in this and 

many other cases, there doesn’t appear to be a single scientist who has concluded that Bendectin 

causes limb reduction defects.”). 

18 Although defendants’ experts claimed that plaintiffs’ causation theories had been debunked or 

were no longer accepted as scientifically valid, defendants produced no literature supporting this 

argument. Given that plaintiffs’ literature submissions corresponded to their causation theory, 

Judge Nichols did not abuse his discretion in finding the data “legitimate.” 
-26- 

 Although we have rejected defendants’ claim that Judge Nichols’s purported failure to 

apply MCL 600.2955 mandates reversal, we reiterate that application of this statute is mandatory 

in every case involving death or personal injury in which scientific opinions are expressed. 

Judge Nichols’s opinion that the statute lacks applicability in medical malpractice cases is simply 

wrong. 

2. Scientific Reliability Under MRE 702 

 MRE 702 requires that an expert’s testimony (1) rest on sufficient facts, (2) qualify as the 

product of “reliable principles and methods,” and (3) reflect that the expert reliably applied the 

principles and methods to the case facts. As a gatekeeper, Judge Nichols was required to 

scrutinize plaintiffs’ scientific evidence to determine whether the “principles and methods” 

employed by the experts were reliably applied to the facts of the case. 

 Defendants assert that plaintiffs’ experts’ testimonies do not fulfill the MRE 702 

requirements because the experts failed to address the existence of Markell’s genetic disorder. 

This omission, defendants argue, rendered plaintiffs’ experts’ opinions unreliable. Specifically, 

defendants insist that plaintiffs’ experts’ failure to acknowledge the impact of Markell’s PCH 

diagnosis “in and of itself renders unreliable the ipse dixit of Plaintiff[s’] causation experts’ 

opinions.” 

 We initially observe that during the Daubert hearing, defense counsel repeatedly 

questioned plaintiffs’ experts about the PreventionGenetics report. Plaintiffs’ experts 

persistently disagreed that the PCH diagnosis had any significant bearing on Markell’s 

neurologic condition. For example, Dr. Crawford testified that Markell’s brain swelling was not 

caused by a genetic defect, characterizing PCH as an “incidental finding” that had nothing to do 

with the ischemia. Dr. Gabriel disputed that the partial absence of Markell’s cerebellum and 

pons caused her cerebral palsy. Although Dr. Gabriel maintained that Markell’s neurological 

presentation at birth was inconsistent with PCH, he conceded that the abnormality plays some 

part in her disabilities: 

 Q. Doctor, is it your opinion that the [PCH] in this case did not affect 

this child? 

 A. No, my opinion is that had Markell not gone through this terrible 

labor and delivery she would be essentially near normal or normal. She would 

probably not be an Olympic athlete or concert pianist or architect, but she would 

be able to function more or less like an ordinary human being based upon what I 

know about the condition of [PCH]. 

Thus, we find no merit in defendants’ contention that plaintiffs’ simply ignored relevant 

evidence of an alternative causation mechanism. 

 Nor are we persuaded that the trial court abused its discretion by rejecting defendants’ 

argument that only PCH reliably explains Markell’s neurologic deficits. Trial courts must 

carefully evaluate whether adequate data supports an expert’s opinion and whether the opinion 

qualifies as reliable in the relevant expert community. Part of this process involves consideration 

of alternate scientific explanations for a given result. The Committee Notes to FRE 702 provide 
-27- 

that a court may consider “[w]hether the expert has adequately accounted for obvious alternative 

explanations.” FRE 702 (2000) Committee Note. 

 However, this does not mean that a trial court is empowered to decide which of two 

competing and adequately supported scientific theories should prevail. “Although [Daubert] 

places the judge in the role of gatekeeper for expert testimony, the key to the gate is not the 

ultimate correctness of the expert’s conclusions.” Schultz v Akzo Nobel Paints, LLC, 721 F3d 

426, 431 (CA 7, 2013). “In evaluating proffered expert testimony, the trial court is ‘a 

gatekeeper, not a fact finder.’” City of Pomona v SQM North America Corp, 750 F3d 1036, 

1043 (CA 9, 2014) (citation omitted). The Supreme Court emphasized in Daubert that trial 

courts should focus “on principles and methodology, not on the conclusions they generate.” 

Daubert, 509 US at 595. “Vigorous cross-examination, presentation of contrary evidence, and 

careful instruction on the burden of proof are the traditional and appropriate means of attacking 

shaky but admissible evidence.” Id. at 596. 

 To be sure, expert testimony may be excluded when there is “too great an analytical gap 

between the data and the opinion proffered.” General Electric Co v Joiner, 522 US 136, 142; 

118 S Ct 512; 139 L Ed 2d 508 (1997). The Supreme Court explained in Joiner that “[t]rained 

experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal 

Rules of Evidence requires a district court to admit opinion evidence that is connected to existing 

data only by the ipse dixit of the expert.” Id. at 146. The “data” referred to by the Court in 

Joiner consisted of four epidemiological studies involving baby mice, which the plaintiff 

claimed as support for linking his small cell lung cancer with occupational exposure to PCBs. 

The district court found that the mice studies did not support the plaintiff’s expert’s conclusion: 

The infant mice in the studies had had massive doses of PCB’s injected directly 

into their peritoneums or stomachs. Joiner was an adult human being whose 

alleged exposure to PCB’s was far less than the exposure in the animal studies. 

The PCB’s were injected into the mice in a highly concentrated form. The fluid 

with which Joiner had come into contact generally had a much smaller PCB 

concentration of between 0-to-500 parts per million. The cancer that these mice 

developed was alveologenic adenomas; Joiner had developed small-cell 

carcinomas. No study demonstrated that adult mice developed cancer after being 

exposed to PCB’s. One of the experts admitted that no study had demonstrated 

that PCB’s lead to cancer in any other species. [Id. at 144.] 

As the Court of Appeals for the Third Circuit subsequently explained, “[G]iven the tenuous link 

in Joiner between plaintiff’s exposure to PCBs and the onset of his cancer a number of years 

later, the lack of studies linking PCBs to cancer in humans left only ‘the ipse dixit of the expert’ 

to support his conclusion.” Heller v Shaw Indus, Inc, 167 F3d 146, 155 (CA 3, 1999). Thus, 

Joiner instructs that trial courts must close the evidentiary gate when an expert’s conclusions 

lack any genuine relationship to the science alleged to support them. 

 Here, science and fact supported both sides’ causation views. That Markell’s birth 

involved head compression resulting in brain bleeding was not contested. Objective record facts 

supporting birth trauma included her Apgar score of one, her lack of muscle tone and normal 

newborn reflexes, her rapidly-emerging seizure disorder, and the blood detected in her brain. 
-28- 

The medical literature discussed above links traumatic birth and neurologic injury. On the other 

hand, genetic evidence indisputably demonstrated PCH. According to two articles supplied to 

the trial court by the defense, children with PCH display near absence of cognitive and voluntary 

motor development and progressive microcephaly. Markell’s condition fits that description. 

Faced with this conflict among the experts, the trial court did not abuse its discretion by deciding 

to admit both theories, finding both supported by peer-reviewed literature and credible expert 

opinion, thereby qualifying as reliable. 

3. This Court’s Prior Gabriel Opinions 

 Defendants’ final argument regarding the reliability of plaintiffs’ experts’ opinions rests 

on this Court’s prior unpublished opinions upholding the exclusion of Dr. Gabriel’s causation 

testimony in other medical malpractice cases. In nine different opinions, panels of this Court 

have held Dr. Gabriel’s causation testimony inadmissible. Unpublished opinions of this Court 

lack precedential value. MCR 7.215(C)(1). Moreover, our review of this Court’s previous 

Gabriel jurisprudence reveals marked dissimilarities with this case. None of the prior cases 

involved a baby with obvious head trauma and a one-minute Apgar score of one. Several of the 

other Gabriel cases involved entirely different alleged mechanisms of injury, including neonatal 

ischemic stroke and chorioamnionitis.19 Most importantly, Daubert and Craig instruct that a 

trial court’s admissibility decision must flow from the record created during the reliability 

hearing. Thus, cases presenting different facts and different scientific records may yield 

different rulings. Just as this Court’s rejection of Dr. Gabriel’s testimony in other cases would 

not have authorized Judge Nichols to entirely forego a Daubert hearing, the prior cases do not 

permit us to deem incredible as a matter of law Dr. Gabriel’s testimony here. Moreover, in this 

case, Dr. Gabriel was not the sole proponent of plaintiffs’ causation theory. Even were we to 

exclude his testimony, Drs. Crawford, Schifrin and Frank attested to the same mechanical trauma 

theory. 

 Nor does our Supreme Court’s opinion involving Dr. Gabriel, Craig, 471 Mich 67, alter 

our analysis. Like this case, Craig involved the use of Pitocin during labor. Craig, 471 Mich at 

 

19 We note that in one case, Mock v Hackley Hosp, unpublished opinion per curiam of the Court 

of Appeals, issued November 20, 2008 (Docket No. 280269), this Court cited testimony from the 

defendants’ experts which tends to support plaintiffs’ causation theory here: 

Defendants never contested that, according to the medical literature submitted by 

plaintiff and the testimony of their experts, certain compressive forces on the fetal 

brain, such as those exerted by the use of forceps and those arising in cases of 

cephalopelvic disproportion, may cause brain damage resulting in cerebral palsy. 

[Id. at 2 (emphasis added).] 

In Mock, this Court found that “none of the articles relied upon by Gabriel as supporting his 

theory and none of the defense experts stated that abnormal uterine pressures, alone, can be 

considered analogous to circumstances known to cause brain damage leading to cerebral palsy, 

such as cephalopelvic disproportion and the use of forceps[.]” Id. at 6. 
-29- 

72. According to the plaintiff’s obstetrical expert witness, the baby developed a slow heart rate 

due to excessively long, intense contractions. Id. at 73. One expert described that the baby’s 

“umbilical cord became compressed because of these contractions, thereby decreasing the 

amount of blood flowing to plaintiff.” Id. At birth, the plaintiff’s Apgar scores were 8 and 9, 

“well within the typical range,” although the plaintiff contended that other evidence supported 

that the child had sustained head trauma. Id. at 73-74. Dr. Gabriel testified at deposition that 

“hyperstimulation of the uterus” due to Pitocin caused the fetal head to pound against his 

mother’s pelvic anatomy, producing permanent brain damage. Id. at 81 (quotation marks 

omitted). The defendants moved for a Davis-Frye hearing, this state’s predecessor to a Daubert

hearing.20 In response, 

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. [Id.] 

The trial court denied the defendant’s motion for an evidentiary hearing, and the jury returned a 

large verdict for the plaintiff. Id. at 75. 

 The Supreme Court held that the trial court had abused its discretion by failing to conduct 

a Davis-Frye hearing, and that the plaintiff failed to demonstrate that Dr. Gabriel’s causation 

theory “was rooted in ‘recognized’ scientific or technical principles.” Id. at 82-83. The “causal 

sequence” described by Dr. Gabriel, the Supreme Court explained, should have been rejected: 

 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. [Id. at 83]. 

 The Supreme Court rested this aspect of its opinion in Craig on several facts unique to 

that case. “For one thing,” the Supreme Court observed, “Dr. Gabriel was unable to cite a single 

study supporting his traumatic injury theory during a voir dire conducted at trial.” Id. at 84. 

Instead, Dr. Gabriel pointed only to “studies . . . in animals” involving an excessive 

administration of Pitocin. Id. “Second,” the Court explained, 

 

20 See People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 App DC 

46; 293 F 1013 (1923). 
-30- 

Dr. Gabriel’s theory lacked evidentiary support. Dr. Gabriel was unable to 

identify the specific part of Ms. Craig’s 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. [Id.] 

 Dr. Gabriel also failed to offer testimony that his theory of vascular trauma could cause 

cerebral palsy or the “asymmetrical development shown in plaintiff’s MRI.” Id. at 84-85. 

“[G]iven the yawning gap between Dr. Gabriel’s testimony and the conclusions plaintiff hoped 

the jury would draw from it,” the Court concluded, this evidence would not have assisted the 

trier of fact and should have been excluded. Id. at 85. 

 Unlike in Craig, the peer-reviewed literature in this case supports that head compression 

can cause brain injury. Here, plaintiffs’ experts had no difficulty explaining the head 

compression mechanism: Dr. Crawford even insisted that a certain bruising pattern on Markell’s 

head corresponded to where her head had been “banged” through the pelvis. The articles 

submitted to Judge Nichols involved human babies and directly corresponded to plaintiffs’ 

experts’ testimony. Thus, the evidence presented during the Daubert hearing responded to and 

overcame the evidentiary infirmities described in Craig. 

 Just as one court’s acceptance of Gabriel’s methodology and conclusions would not bind 

another court to embrace Gabriel’s testimony without performing a “searching inquiry,” our 

Supreme Court’s rejection of Gabriel’s causation opinions in a different case, expressed in a 

different record, does not control the outcome here. In summary, we hold that Judge Nichols did 

not abuse his discretion by allowing the jury to consider Dr. Gabriel’s causation theory. 

IV. PROXIMATE CAUSE AT THE TRIAL 

 Defendants next contend that the trial evidence insufficiently supported plaintiffs’ 

causation theory. According to defendants, Markell’s genetic disorder accounts for the totality 

of her neurologic disabilities, and plaintiffs’ expert witnesses failed to support that a cesarean 

section “is capable of repairing genetic damage that inevitably causes profound retardation.” 

Judge Nichols erred, defendants assert, by failing to enter a judgment notwithstanding the verdict 

in favor of defendants regarding proximate cause. 

A. THE TRIAL EVIDENCE 

 Defendants premise their proximate cause argument on a central piece of the evidence: 

the PreventionGenetics report stating that Markell suffers from PCH-2. This genetic defect, 

defendants contend, constitutes the sole cause of Markell’s neurologic problems. According to 

defendants, plaintiffs “were unable to reconcile their opinions with the PCH evidence.” 

 Contrary to defendants’ argument, plaintiffs’ causation experts recognized that Markell 

has a genetic condition that resulted in the malformation of her cerebellum. They rejected that 

this genetic condition caused Markell’s cerebral palsy and her mental retardation. Accordingly, 
-31- 

plaintiffs created a fact question regarding whether birth trauma or PCH-2 caused Markell’s 

neurological deficits. 

 Defendants’ proximate cause argument posits that Markell’s neurologic condition was 

attributable only to PCH-2. Dr. Aubrey Milunsky served as the primary proponent of this 

defense at the trial. Dr. Milunsky, a professor of pediatrics, human genetics, obstetrics and 

gynecology and pathology at Boston University, testified that “Markell has a very well defined 

genetic disorder. It’s called [PCH]. Well recognized, well characterized and diagnosed with 

great precision by molecular or DNA diagnosis. It is really dramatically straightforward.” 

Markell’s small cerebellum, he explained, “was the first flag that this is a child that was born 

with an abnormality.” The genetic testing performed by PreventionGenetics cemented the 

clinical diagnosis. 

 Dr. Milunsky reviewed the PreventionGenetics report with the jury, explaining that the 

results revealed PCH types 2 and 4. In Dr. Milunsky’s view, the test is 99.9% accurate. “[T]he 

molecular diagnosis made in this case,” he opined, “is indisputable and absolute.” Dr. Milunsky 

maintained that Markell’s clinical findings of microcephaly, spasticity, seizures, mental 

retardation, difficulty swallowing and the inability to control her movements “are just highly 

typical of what’s been described before” as PCH-2. The infirmities caused by PCH-2 explain 

why Markell spent 18 days in the Special Care Nursery. And according to Dr. Milunsky, 

Markell’s life expectancy “is severely limited.” 

 Dr. Milunsky rejected that Markell suffered any injury related to the circumstances 

surrounding her birth: 

 Q. Doctor, are you able to exclude trauma to the brain as a cause of 

the current neurologic condition? 

 A. There’s absolutely no good reason to think trauma had anything 

whatsoever to do with this genetic condition. 

On cross-examination, Dr. Milunsky conceded, “a child can be injured by being battered against 

the wall of the pelvis.” On redirect examination, he stated: “There may be similar features that 

may appear [with perinatal depression] following lack of oxygen or . . . [b]ecause of a genetic 

condition.” He further agreed that unlike most children with PCH-2, Markell’s head 

circumference percentile initially increased instead of decreasing, and she has lived longer than 

the majority of children studied. Although Dr. Milunsky maintained that the disease is 

relentlessly progressive, he admitted that Markell does not appear to be getting worse; he noted, 

however, that at age 15 she weighed only 50 pounds. 

 Another defense expert, University of Michigan neuroradiologist Douglas Quint, M.D., 

testified that a CT scan taken when Markell was five months old demonstrated a “dragon fly 

pattern” in the area of her cerebellum, which is classic and diagnostic for PCH. The imaging 

studies did not reveal any evidence of brain abnormalities consistent with hypoxic ischemic 

encephalopathy, Dr. Quint maintained. Dr. Quint admitted that this is the only case of PCH that 

he has ever seen. 
-32- 

 Defendants’ pediatric neurology expert, Dr. Steven Leber, also testified that the imaging 

studies were inconsistent with hypoxic ischemic injury. The “dragon fly appearance” of 

Markell’s cerebellum, Dr. Leber expressed, correlates with PCH-2, and the PreventionGenetics 

report “very much” supported this diagnosis. Dr. Leber nevertheless conceded, “all of 

[Markell’s] clinical symptoms can be seen in children who have hypoxic ischemic injury:” 

 Q. . . . All of the things that she showed when she was born you 

testified under oath that they’re seen in children who have the injury that our 

experts have testified she has, right? 

 A. That’s correct. 

 As he had done with Dr. Milunsky, plaintiffs’ counsel established on cross-examination 

that although PCH-2 is a progressive neurological disorder (meaning that the condition of those 

who have it progressively worsens), Markell seemed to have experienced periods of 

improvement and gains in development. Markell can sit up and roll over, unlike many children 

with PCH-2. Dr. Leber conceded that cerebral palsy, the diagnosis reached by Markell’s treating 

physicians, is a nonprogressive disorder. Dr. Leber further acknowledged that his diagnosis is 

“[t]otally inconsistent with what her treating doctors and her medical course since birth show.” 

 Plaintiffs’ experts did not dispute that Markell has PCH. Whether PCH-2 or birth trauma 

caused Markell’s spastic quadriparesis and mental retardation, however, separated plaintiffs’ 

experts’ causation opinions from those of the defense witnesses. 

 Dr. Soffer testified that regardless of the genetic findings, the malpractice surrounding 

Markell’s birth harmed her: “The point is no matter what the condition of this baby was 

genetically the circumstances of events that happened during this labor made whatever condition 

this baby may have had at birth far, far worse than it would have been otherwise.” Plaintiffs’ 

primary proximate cause witness, Dr. Gabriel, set forth his causation opinion as follows: 

The reason for Markell’s present condition is because of two factors that occurred 

towards the end of labor and delivery. The first factor is there was considerable 

mechanical pressure, abnormal mechanical pressure on the unfused skull plates. . . 

. You put pressure on those skull plates and you put pressure on the brain and that 

can distort the vessels, stretch the vessels, and tear the vessels, and that’s what 

caused the bleeding in Markell’s brain. 

* * * 

The second phenomenon or mechanism is the reduction in blood flow to 

the brain. We know that happened independent of the mechanical trauma but 

with it because when Markell was one minute of age she was essentially dead 

with a very low heart rate. The Apgar was one and you have essentially a dead 

baby with an Apgar of one. The one indicates that the heart rate was present but it 

was abnormally low. So, we know that there was not enough blood getting to the 

brain during that period of time. 
-33- 

In Dr. Gabriel’s view, Markell’s injuries could have been avoided had a cesarean section been 

performed “before she went through the last 30, 60, 90 minutes of labor and delivery.” 

 Dr. Gabriel testified that the cerebellum constitutes “a very small part of the brain,” and 

claimed that “[m]ost” of Markell’s cerebellum is present. “What’s missing is probably anywhere 

from 10 to 20--25 percent is not there because of underdevelopment.” He disagreed with the 

opinion of defendants’ experts’ that Markell’s pons was congenitally absent: “She has both a 

pons and a small bump as you’ll see on the MRI.” And in his view, the cerebellar abnormality 

does not contribute to Markell’s condition: 

 Q. Does anything about the cerebellum or the smallness of her brain 

stem have anything to do with the condition that we see Markell in today? 

 A. No. On examination she has no abnormal cerebellar findings. 

* * * 

 Q: Let’s -- Doctor by the way, is she like the way she is now because she 

has some genetic disease they just discovered? 

A: No. Apart from the undergrowth of the cerebellum, no. The vast bulk 

of her condition is due to the mechanisms that I just mentioned. 

 Dr. Gabriel admitted that the cerebellar abnormality qualified as a genetic defect. He 

claimed to have read two research studies regarding PCH-2, but disagreed that they applied to 

Markell, expressing that the studies included no information regarding the “past history” of the 

children studied to determine whether other conditions, such as “meningitis, head trauma, birth 

trauma” or “toxic drugs,” could account for their conditions. Dr. Gabriel further distinguished 

Markell’s condition from that of the neurologically devastated children described in the 

published studies regarding PCH-2 as follows: 

She is able to reach and grasp and can transfer from hand to hand. She is 

interactive with her family. She makes eye contact especially with the right eye. 

She smiles. She enjoys music. She’s actually a vibrant youngster, severely 

impaired, but she has a very vibrant ability to interact with her family. You see 

she’s enjoying that. It’s the kind of tactile stimulation that makes her feel good 

and she responds. And, you can see how she has such good head control which is 

important in terms of her life expectancy. 

Dr. Gabriel emphasized that the majority of the children described in the PCH articles die within 

a few years of their birth. Nor did Dr. Gabriel discern the “classic dragonfly pattern” when he 

reviewed Markell’s imaging studies. 

 Dr. Crawford, too, testified that Markell’s injuries would have been prevented by a 

cesarean section. She rejected that the data in the PCH-2 studies applied to Markell because the 

children in the studies had microcephaly at birth, while Markell had a normal head size and her 

head actually grew normally for a short time. 
-34- 

 Thus, the battle lines were drawn. Defendants contend that the irrefutable PCH-2 

evidence is simply irreconcilable with plaintiffs’ explanation for Markell’s disabilities, and that 

plaintiffs’ failure to exclude PCH from the causation equation “with a fair amount of certainty” 

mandated JNOV. 

B. STANDARD OF REVIEW 

 We review de novo a trial court’s decision on a motion for JNOV. Reed v Yackell, 473 

Mich 520, 528; 703 NW2d 1 (2005). When faced with a JNOV motion, a court must “review the 

evidence and all legitimate inferences in the light most favorable to the nonmoving party. Only 

if the evidence so viewed fails to establish a claim as a matter of law, should the motion be 

granted.” Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). Granting a JNOV is 

contrary to our policy of giving all due deference to jury verdicts and should not be taken lightly. 

“The trial court cannot substitute its judgment for that of the factfinder, and the jury’s verdict 

should not be set aside if there is competent evidence to support it.” Ellsworth v Hotel Corp of 

America, 236 Mich App 185, 194; 600 NW2d 129 (1999). 

C. ANALYSIS 

 Plaintiffs’ evidence supported that defendants’ negligence constituted both the cause in 

fact and a proximate cause of Markell’s injuries and damages. Plaintiffs admitted that Markell 

tested positive for PCH-2. They disagreed that this genetic condition caused her neurological 

picture. Plaintiffs’ causation evidence was neither speculative nor insufficient. It was for the 

jury to sort out this disagreement. 

 The plaintiff in a medical malpractice case must prove that the defendant’s breach of the 

applicable standard of care proximately caused the plaintiff’s injuries. Craig, 471 Mich at 86. 

Proximate cause incorporates two separate elements: (1) cause in fact and (2) legal or proximate 

cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). 

 Cause in fact “generally requires showing that ‘but for’ the defendant’s actions, the 

plaintiff’s injury would not have occurred.” Id. at 163. “[L]egal or ‘proximate cause’ normally 

involves examining the foreseeability of consequences, and whether a defendant should be held 

legally responsible for them.” Id. “To establish legal cause, the plaintiff must show that it was 

foreseeable that the defendant’s conduct ‘may create a risk of harm to the victim, and . . . [that] 

the result of that conduct and intervening causes were foreseeable.’” Weymers v Khera, 454 

Mich 639, 648; 563 NW2d 647 (1997) (alterations in original), quoting Moning v Alfono, 400 

Mich 425, 439; 254 NW2d 759 (1977). It is well established that more than one proximate cause 

may contribute to an injury. O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 497; 791 NW2d 

853 (2010). Proximate cause is a question for the jury to decide unless reasonable minds could 

not differ regarding the issue. Nichols v Dobler, 253 Mich App 530, 532; 655 NW2d 787 

(2002). 

 Plaintiffs’ cause-in-fact proof rests on the testimony of both the obstetrical experts (Drs. 

Schifrin and Soffer) and Dr. Gabriel. Both Drs. Schifrin and Soffer testified that the standard of 

care required that Kimberly undergo a cesarean delivery, and that the inappropriate use of 

Pitocin “pushed this baby through a pelvis that now we know is too small for this baby to fit.” 
-35- 

Dr. Schifrin opined that the defendants could have prevented injury to Markell by stopping the 

Pitocin, and if that did not work, by performing a cesarean section. Dr Gabriel testified that had 

a cesarean section been performed, Markell would have avoided injury. Viewed in the light 

most favorable to plaintiffs, this testimony established causation in fact. 

 A genuine issue of material fact also existed regarding proximate cause. Defendants’ 

reliance on Skinner is misplaced, as in Skinner “[t]here was no evidence to support the plaintiff’s 

theory of causation,” Craig, 471 Mich at 88-89, while here plaintiffs’ evidence substantiated that 

Markell sustained an ischemic injury to her brain. 

 At the time of his death, the decedent in Skinner had been operating an electric metal 

“tumbling machine” of his own design and manufacture. Skinner, 445 Mich at 157. The 

plaintiffs theorized that defendant Square D Company defectively designed a switch that the 

decedent had incorporated in his tumbling machine such that the switch’s “large ‘phantom 

zone’” sometimes inaccurately signaled that the switch was “off” while power actually continued 

flowing to the machine. Id. at 158. Because no one witnessed the decedent’s accident, no direct 

evidence linked the switch and the decedent’s electrocution. The plaintiffs’ case against Square 

D was entirely circumstantial, predicated on a mere assumption that the Square D switch had 

played a role in the decedent’s death. Id. at 163. Furthermore, some of the physical evidence 

directly contradicted the hypothetical accident scenario proposed by the plaintiffs. Id. at 171-

172. Square D maintained that even assuming the presence of a defect in its switch, the 

plaintiffs’ circumstantial proofs failed to demonstrate that the decedent “was misled by the 

switch when he was fatally electrocuted.” Id. at 158. The Supreme Court agreed, concluding 

that the record contained no direct or circumstantial evidence from which a reasonable jury could 

infer the mechanism of the decedent’s electrocution or whether the switch contributed to the 

accident. Id. at 174. The Court emphasized in Skinner that “[t]o be adequate, a plaintiff’s 

circumstantial proof must facilitate reasonable inferences of causation, not mere speculation.” 

Id. at 164. 

 In Craig, the Supreme Court contrasted the facts in Skinner with those of Mulholland v 

DEC Int’l Corp, 432 Mich 395; 443 NW2d 340 (1989). The plaintiffs in Mulholland operated a 

dairy farm. Id. at 398. After they installed a new milking system supplied by the defendants, 

many cows developed mastitis. Id. at 399. An expert witness, Sidney Beale, observed the 

plaintiffs’ milking operation and concluded that the “problems were related to the configuration 

of the milking machinery.” Id. at 400. Beale recommended machinery changes which resulted 

in decreased mastitis and increased milk production. Id. In the subsequent litigation, Beale 

linked a milking machine defect with the cows’ mastitis. Id. at 409. The trial court granted a 

directed verdict for defendants, and the Supreme Court reversed. 

 The Supreme Court held that Beale was qualified as an expert, and also that his testimony 

rested on an adequate factual foundation: 

 Beale’s own perceptions at the Mulholland farm provided an ample basis 

for the conclusion that a defective milking machine caused the mastitis in the 

plaintiffs’ herd by making the cows more susceptible to infection. As we have 

noted, Beale observed a complete milking of the Mulholland herd on his first visit 
-36- 

to the farm. He noticed that a number of the cows had sore teat ends and mastitis. 

Beale also inspected the milking machinery in particular. [Id. at 413.] 

Beale’s testimony “did not rule out every other potential cause of mastitits[.]” Craig, 471 Mich

at 89. “[H]is opinion was nevertheless admissible and sufficient to support a finding of 

causation.” Id. at 90. The Mulholland Court explained:

 It is, of course possible, as the defendants suggested throughout the trial, 

that the true or more immediate cause of the mastitis was improper bedding, 

unsanitary stalls, or even mud in the barnyard. Neither Beale’s own perceptions 

nor those made known to him at or before trial would allow this expert to rule out 

these possibilities. Nevertheless, we do not find the greater wisdom in a rule 

which would require an evidentiary basis of this sort. To the extent that they are 

credible, the absence of an evidentiary basis upon which an expert may rule out 

other potential causes may reduce the credibility of the expert. To the extent that 

other potential causes are substantiated by the evidence of record, they may also 

support a verdict of comparative negligence. However, to require for each expert 

an evidentiary basis sufficient to negate all of the possible causes which might be 

asserted by opposing counsel would virtually eliminate expert testimony. We 

require only expertise of experts, not omniscience. In our view, it is sufficient if 

the expert has an evidentiary basis for his own conclusions. See, generally, 7 

Wigmore, Evidence (Chadbourn rev.), § 1922, pp. 26-29. 

 Here, the expert provided an ample basis in his own perceptions for his 

testimony as to the cause of mastitis in the Mulholland herd. We do not find a 

lack of evidentiary basis to be an adequate alternative ground upon which to 

uphold the ruling of the trial court. [Mulholland, 432 Mich at 413-414.] 

 Here, the jury was presented with two competing theories of causation: the mechanical 

pressure/ischemia explanation, and defendants’ claim that PCH-2 doomed Markell to suffer the 

neurologic abnormalities she exhibits. Plaintiffs’ theory rested on an evidentiary foundation: 

Markell’s large size, the electronic fetal monitor evidence of hyperstimulation and decelerations, 

the difficult delivery, Markell’s brain bleeds, her low Apgar score, her neurologic problems at 

delivery, and the radiologic findings which, according to plaintiffs’ radiology expert, were 

consistent with ischemic brain injury. In other words, plaintiffs presented evidence illustrating a 

logical sequence of cause and effect. Unlike the plaintiffs in Skinner, who lacked any factual 

support connecting the switch with the mechanism of the decedent’s death, plaintiffs here 

marshaled evidence from the medical records from which a jury could reasonably conclude that 

Markell sustained an ischemic injury to the brain. Even Dr. Milunsky admitted that “a child can 

be injured by being battered against the wall of the pelvis,” and that the clinical presentation of 

PCH-2 shares “similar features” with perinatal depression due to birth trauma. Thus, plaintiffs’ 

proximate cause analysis was plausible and nonspeculative. 

 Moreover, plaintiffs cast some doubt on the credibility of defendants’ experts’ conclusion 

that PCH-2 completely explained Markell’s problems. Plaintiffs questioning highlighted that 

Markell’s condition differed from that of the children described in the PCH-2 articles relied upon 

by defendants’ experts. She had lived to an age almost unheard of in the articles, had some 
-37- 

control of her motor functions, and her head initially grew at a normal rate rather than becoming 

progressively smaller in comparison to her peers. In other words, plaintiffs’ experts stressed that 

the defense had conflated the laboratory diagnosis of PCH-2 with an immutable clinical 

presentation. 

 Given the potential weaknesses in Dr. Milunsky’s claim that PCH-2 fully explained 

Markell’s condition, Dr. Milunsky’s causation theory was subject to disbelief by the jury. And 

even absent facts that seemed to distinguish Markell from the PCH-2 children described by Dr. 

Milunsky, the jury was entitled to reject defendants’ experts’ opinions. A jury may disregard 

testimony that, in the words of Justice Cooley, “probably ought to have satisfied any one. . . .” 

Woodin v Durfee, 46 Mich 424, 427; 9 NW 457 (1881). As the Supreme Court expressed in 

Mulholland, requiring plaintiffs to negate all other possible causes of injury “would virtually 

eliminate expert testimony.” Mulholland, 432 Mich at 414. 

 In summary, viewed in the light most favorable to plaintiffs, Drs. Gabriel, Crawford and 

Soffer neither ignored nor discounted that Markell had a genetic disorder. Plaintiffs’ experts 

disagreed that this abnormality proximately caused her profound neurological disabilities. 

Because the record evidence supplied a basis for this disagreement, Judge Nichols did not err by 

denying defendants’ motion for judgment notwithstanding the verdict. 

V. EXCLUSION OF THE ACOG CRITERIA 

 Defendants argue that Judge Nichols denied them a fair trial and abused his discretion by 

excluding from evidence the ACOG criteria, which defendants contend would have “destroyed” 

plaintiffs’ argument that Markell’s PCH-related disabilities were aggravated by hypoxic 

ischemic encephalopathy. According to defendants, the ACOG criteria represent an 

“international consensus . . . based upon the best science available” of the clinical findings 

required to define an acute event during labor and delivery as a cause of cerebral palsy. Absent 

admission of evidence concerning the ACOG criteria, defendants complain, the jury was left 

unaware that the published standards would exclude birth trauma as a potential cause of 

Markell’s cerebral palsy. 

A. AN INTRODUCTION TO THE ACOG CRITERIA 

 In 2003, the American College of Obstetricians and Gynecologists (ACOG) published the 

report of its Task Force on Neonatal Encephalopathy and Cerebral Palsy (NECP). This 105-page 

document was intended “to collate and review the best scientific data available on the topic and 

to publish these findings.” ACOG at xvii. The report sets forth “clearly delineated objective 

criteria to use when defining an acute intrapartum hypoxic event,” and explains that an 

examination focused on four identified benchmarks must be conducted before a physician 

concludes that events during labor and delivery caused a baby’s cerebral palsy: 

These criteria should be examined before a label of birth asphyxia or hypoxicischemic encephalopathy is written into the infant’s case notes and given to the 

parents as a diagnosis. Accurately defining the relatively uncommon event of 

intrapartum asphyxia, with its uncommon sequelae of neonatal encephalopathy 

and cerebral palsy, will allow for better definitions of the possible nonhypoxic 
-38- 

causes of encephalopathy and cerebral palsy. Criticism of the management of 

labor should not be confused with cerebral palsy causation because the two often 

may not be linked. [Id. at xi.] 

 The report sets forth four “essential” criteria, and five additional criteria that “collectively 

suggest an intrapartum timing . . . but are nonspecific to asphyxia insults.” Id. at xviii, 74. As to 

the nine total criteria, the report highlights the importance of blood gases: 

 The nine criteria endorsed by the ACOG Task Force in Chapter 8 

emphasize that analysis of peripartum blood gases is essential to prove that 

hypoxia was present around birth. For a causative link to be established, a severe 

metabolic acidosis must occur in sequence with early neonatal encephalopathy 

and a type of cerebral palsy that could have been caused by the hypoxia. Because 

intrapartum compromise can be simply a reflection of antenatal fetal pathology, 

known etiologies or strong associations with subsequent cerebral palsy should 

help to exclude primary intrapartum hypoxia as the likely cause. [Id. at xii.]

 Before delving into the nine criteria, the NECP report describes various fetal and 

maternal conditions that may generate a risk of neonatal cerebral palsy, and reviews fetal heart 

monitoring and its impact on preventing adverse outcomes. At the outset of Chapter 6, the report 

notes that “[d]ozens of distinct genetic, metabolic, and anatomic factors may contribute to the 

etiology of neonatal encephalopathy.” Id. at 63. Chapter 8 addresses the “criteria required to 

define an acute intrapartum hypoxic event as sufficient to cause cerebral palsy.” Id. at 73. The 

report provides: 

 Part 1.1 of the criteria presents four essential criteria that are necessary 

before an intrapartum hypoxic event can be considered as a cause of cerebral 

palsy. If any 1 of the 4 essential criteria is not met, this provides strong evidence 

that intrapartum hypoxia was not the cause of cerebral palsy. [Id.]

We repeat the four “essential” criteria here: 

 1. Evidence of a metabolic acidosis in fetal umbilical cord arterial blood 

obtained at delivery (pH <7 and base deficit ≥12 mmol/L) 

 2. Early onset of severe or moderate neonatal encephalopathy in infants 

born at 34 or more weeks of gestation 

 3. Cerebral palsy of the spastic quadriplegic or dyskinetic type 

 4. Exclusion of other identifiable etiologies, such as trauma, coagulation 

disorders, infectious conditions, or genetic disorders. [Id. at xviii, 74.]

 The report examines each criterion in some detail. As to the metabolic acidosis 

requirement, the report makes no mention of substituting a venous umbilical blood gas result for 

an arterial pH. See id. at 74. Regarding the fourth criterion, the report instructs: 
-39- 

 A large proportion of cerebral palsy cases are associated with maternal 

and antenatal factors, such as preterm birth, intrauterine growth restriction, 

intrauterine infection, maternal or fetal coagulation disorders, multiple pregnancy, 

antepartum hemorrhage, breech presentation, and chromosomal or congenital 

abnormalities . . . . These causes must be considered and excluded before 

concluding intrapartum hypoxia is the cause of cerebral palsy. [Id. at 75.]

B. PROCEDURAL BACKGROUND 

 Plaintiffs filed a motion in limine seeking to prevent defendants from referencing the 

ACOG criteria during the trial, arguing initially that exclusion was an appropriate sanction for 

Beaumont’s failure to obtain an umbilical arterial blood gas or to report the results of an arterial 

blood gas in Markell’s medical record. Plaintiffs also urged that the criteria did not apply to the 

facts of this case. The trial court issued a lengthy opinion and order granting plaintiffs’ in-limine 

motion, identifying two evidentiary bases for its ruling. First, the trial court ruled that because 

plaintiffs’ causation theory involved ischemia due to trauma and not simply hypoxia, the ACOG 

criteria could not be reliably applied to the facts of the case: 

 Under MRE 702, the Court must say the principles and methods are 

reliable and reliably applied. Here the Court cannot say that Defendants are 

reliably applying their four criteria to establish a sufficient hypoxic-ischemic 

event causing cerebral palsy because Defendants are unilaterally and deliberately, 

it appears to this Court, distorting Plaintiff[s’] theory in saying that it must be an 

hypoxic–ischemic event. Plaintiff[s’] theory is a combination of trauma and 

ischemia leading to minor Plaintiff’s injuries and damages. This is very 

significant, because the Court held, as a matter of fact and law on September 7, 

2011, that cerebral palsy can occur in the face of a multiple of factors -- not just 

those in ACOG, especially here where Plaintiff[s are] not arguing hypoxia alone. 

 Next, the trial court found that the unavailability of an arterial blood gas result rendered 

scientifically unreliable any attempted application of the criteria: 

 In addition, and most significantly here, the Court cannot find Defendants’ 

defense theory was reliably employed because the Court cannot conclude that 

Defendants’ witnesses correctly applied the medical facts to the criteria. The 

Court cannot find as a fact that arterial blood was tested (and thus used) and 

that there was no trauma. [ACOG at] 74 left column (“must meet all four”). 

The Court finds conclusively that Defendants’ own witnesses say there was 

no arterial blood gas tested and there was trauma. Defendants fail to 

establish, from the medical testimony, records and reports admitted at the 

hearings, all of which define this case from a medical perspective, that two of 

its four mandated criteria apply. [Bold in original].

The court continued: 

 For these reasons, the Court cannot conclude that Defendants’ attempt to 

use this theory in order to discredit Plaintiff[s’] case is reliable or reliably applied. 
-40- 

The court holds that the Defendants have failed, in particular, to carry their 

burden by a preponderance of the evidence under MRE 702 that the defense 

theory has been reliably applied. 

 The trial court then turned to a discussion of MRE 403, and found that the probative 

value of the criteria was “significantly outweighed” by the prejudicial effect: 

 Employing the weighing process of MRE 403, the probative value of 

Defendants’ defense stating Plaintiff[s] cannot prove an hypoxic-ischemic event 

based upon ACOG’s four criteria is significantly outweighed by its prejudicial 

effect, confusion of the issues, misleading the jury, and considerations of undue 

delay and waste of time, where, as here, it misstates Plaintiff[s’] theory of the case 

and has been erroneously applied in methodology. It is undisputable that the 

criteria required by ACOG has not been established in this case. Specifically as 

to the first and fourth criteria, no arterial blood was tested and birth trauma exists. 

To allow testimony on Defendant[s’] theory here will unnecessarily confuse and 

mislead the jury and be a waste of time since the criteria has not established and 

has even been conceded as existing as to birth trauma by Defendant[s’] own 

witnesses. The probative value of the evidence is clearly substantially 

outweighed by the potential of prejudicial effect to Plaintiff[s]. 

 The trial court concluded: 

 Finally, the Court agrees in theory that the ACOG hypoxic-ischemic event 

defense could be critical to Defendants. But to allow it in view of its MRE 702 

deficiencies as to reliability and its MRE 403 effects would be clearly 

inappropriate and an invitation to error on appeal which this Court is trying to 

avoid. 

C. ANALYSIS 

 We review Judge Nichols’s evidentiary rulings for an abuse of discretion. People v 

Bragg, 296 Mich App 433, 445; 824 NW2d 170 (2012). “A trial court abuses its discretion when 

its ruling falls outside the range of principled outcomes.” Id.

 Judge Nichols perceived that the ACOG criteria lacked applicability to the facts of this 

case for two reasons: no arterial blood sample was obtained, and neither trauma nor genetics 

could be ruled out as causative of Markell’s injuries. He further concluded that admission of the 

criteria would confuse the jury. Although we partially disagree with Judge Nichols’s reasoning, 

his decision falls within the range of principled outcomes, and we find no error meriting reversal. 

 Defendants sought to use the ACOG criteria to prove that an intrapartum hypoxic event 

could not have caused Markell’s cerebral palsy because (1) the umbilical blood test results did 

not demonstrate metabolic acidosis, and (2) a genetic disorder had not been excluded as a cause 
-41- 

of her neurological infirmities.21 By its plain terms, however, the NECP report mandates that 

physicians assessing whether perinatal events caused cerebral palsy take into account an arterial

umbilical blood gas result. Defendants presented no evidence that the ACOG criteria may be 

reliably applied when only a venous umbilical blood sample is available. None of the defense 

experts claimed that the ACOG guidelines treated arterial and venous samples as interchangeable 

or that umbilical venous blood accurately reflects fetal acid-base status at the time of delivery. 

And given that an arterial umbilical blood gas is one of the touchstones of the ACOG rubric, we 

cannot fault Judge Nichols’s conclusion that application of the ACOG standards would neither 

qualify as reliable nor as grounded in the case facts. Thus, Judge Nichols acted within his 

discretion in excluding opinion testimony premised on the ACOG criteria under MRE 703. Nor 

do we find that Judge Nichols abused his discretion in finding admission of the criteria confusing 

under MRE 403. 

 We do take issue with one aspect of Judge Nichols’s reasoning. The NECP report 

additionally posits that before a physician concludes that an intrapartum hypoxic event caused 

cerebral palsy, both traumatic and genetic causes of cerebral palsy must be ruled out. In other 

words, the report instructs physicians that when either trauma or genetic abnormalities are 

present, intrapartum hypoxia cannot be considered to have caused a child’s neurologic injuries. 

Plaintiffs contended (and Judge Nichols agreed) that because (1) their experts premised their 

causation theories on ischemia rather than hypoxia, and (2) trauma cannot be ruled out as 

causative, the criteria lack applicability. We reject this logic. The term “trauma” is not 

specifically defined in the ACOG document. However, it is used along with other terms 

(“coagulation disorders, infectious conditions, or genetic disorders”) describing maternal 

conditions or conditions unrelated to the birth process. The “trauma” alleged by plaintiffs 

occurred intrapartum and, according to plaintiffs, resulted in ischemia. The claimed ischemia, in 

turn, disrupted the supply of oxygen to involved brain tissue. Accordingly, had an arterial 

umbilical blood gas been obtained, the ACOG criteria would have been fully applicable. 

 Despite partially premising his ruling on a specious ground, Judge Nichols accurately 

assessed that expert testimony premised on the ACOG criteria would not “‘serve to give the trier 

of fact a better understanding of the evidence or to assist in determining a fact in issue.’” Craig, 

471 Mich at 79, quoting People v Beckley, 434 Mich 691, 711; 456 NW2d 391 (1990) (opinion 

of BRICKLEY, J.). In other words, the ACOG criteria would not fulfill the relevancy requirement 

incorporated within MRE 702. “[E]ven proposed expert testimony that is offered by a qualified 

expert and based on reliable scientific data and methods may be properly excluded if it is not 

relevant to the facts of the case[.]” People v Kowalski, 492 Mich 106, 122; 821 NW2d 14 

(2012). Thus we find no fault with Judge Nichols’s ruling that without the data necessary to 

perform the ACOG assessment, the criteria were inadmissible under MRE 403. 

 

21 Markell’s condition fulfilled the remaining two criteria: she experienced an early onset of 

severe or moderate neonatal encephalopathy, and had been diagnosed with cerebral palsy of the 

quadriplegic or dyskinetic type. 
-42- 

 In summary, because exclusion of the ACOG was a reasonable and principled outcome 

given that the criteria could not reliably be applied to Markell, the trial court’s decision did not 

amount to an abuse of discretion. 

VI. EXCLUSION OF THE PREVENTIONGENETICS REPORT 

 Defendants next assert that the trial court erred by refusing to allow them to place in 

evidence the PreventionGenetics report. According to defendants, the PreventionGenetics report 

constituted the “core of Defendants’ proximate cause defense” because it confirmed with 99.9% 

certainty that Markell carries the gene defect that causes PCH-2. Although Judge Nichols ruled 

that the PreventionGenetics report satisfied the conditions precedent to admission as an exhibit, 

defendants claim that he inexplicably reversed this ruling during the trial, disallowed the report’s 

use, and proceeded to denigrate the importance of the report in the jury’s presence. 

 Plaintiffs’ response to this argument is simple: the report was placed in evidence, went to 

the jury, and defendants’ argument lacks any factual foundation. At oral argument, we explored 

with counsel a question we thought quite basic: did the report go to the jury, or did it not? Not 

surprisingly, the parties vehemently disagreed. 

 Thus, we are in a difficult position, as the foundation for defendants’ evidentiary 

argument—that a key piece of evidence was improperly kept from the jury—may or may not be 

accurate. Based on our study of the record, we have concluded that the evidence probably was 

given to the jury, and that even if the report itself did not make it to the jury room, its substance 

was well-presented throughout the trial. The path to our decision has required us to dig deeply 

into the trial court record. We begin with a detailed review of the facts from which we have 

drawn our conclusions. 

A. PROCEDURAL BACKGROUND 

 Pursuant to the trial court’s order, in November 2010, two test tubes of Markell’s blood 

were drawn at the Detroit Medical Center for further genetic testing.22 The blood eventually 

made its way to the PreventionGenetics laboratory in Wisconsin, where a gene sequencing test 

proved positive for PCH-2. Plaintiffs moved in limine to exclude the PreventionGenetics report 

based on alleged failures of defendants to (1) establish the chain of custody of the blood, and (2) 

“authenticate” the test results. Plaintiffs asserted that authentication could be accomplished only 

“from the testimony of every witness that handled the unsealed and non-tamper proof blood, 

from the time it was allegedly drawn from Markell . . . at DMC Children’s Hospital by a 

phlebotomist named Nicole Fuller in Detroit, Michigan, to then allegedly being sent to Spokane, 

Washington, to Salt Lake City, Utah, and/or to Marshfield, Wisconsin.” 

 

22 All genetic testing previously performed at Beaumont had proven negative for an identifiable 

genetic disorder. When one of defendants’ experts suggested testing Markell for the genetic 

defect giving rising to PCH-2, the trial court ordered additional testing. 
-43- 

 At a hearing held on September 7, 2011, plaintiffs’ counsel, Geoffrey Fieger, attempted 

to withdraw his motion to preclude the PreventionGenetics report, but the trial court expressed 

concern regarding “the nature of [the] evidence. Whether an item is what it purports to be. 

Authentication.” Joseph Babiarz, one of defendants’ attorneys, explained that the blood was 

obtained at the DMC, both tubes were sent to Signature Genomics, a laboratory in Washington. 

Signature Genomics took “a couple of drops of the blood out of one of the tubes” and sent the 

rest to ARUP “to do a microarray,” which was “normal.”23 

 While those blood tests were in progress, Mr. Babiarz learned from one of his experts 

that only two labs in the United States could test for the specific gene defect suspected by 

defendants’ experts. PreventionGenetics was one of them. Mr. Babiarz averred that Signature 

Genomics transferred the blood to PreventionGenetics, where it tested positive for TSEN54, the 

genetic defect consistent with PCH-2. 

 Following this recitation, Mr. Fieger complained that the PreventionGenetics testing “has 

never been subjected to any testing” and was not peer reviewed. The trial court inquired, “Why 

aren’t you moving to have it struck for reliability?” Mr. Fieger responded: “Because I think I 

want to do it at trial, but I don’t want to take any more time.” After more discussion on the 

record, the trial court stated, “both the questions regarding chain and reliability were withdrawn 

but reserved.” 

 The parties reconvened on September 19, 2011. Judge Nichols introduced that day’s 

hearing by explaining that the court would consider the chain of custody of the blood used for 

the PreventionGenetics testing, and would “examine the reliability of the genetics testing that 

was done . . . both in terms of the test and in terms of its application.” The court invited 

defendants “to make a record regarding chain of custody.” 

 Mr. Babiarz summarized affidavits and depositions filed with the court attesting to the 

chain of custody. Kelly Sartor, Supervisor of DMC University Labs, testified and averred that 

when Markell’s blood was drawn at the DMC on November 19, 2010, the phlebotomist placed 

handwritten labels stating Markell’s name and birth date on two tubes of blood. Joyce Simmons, 

a DMC employee, brought the two tubes of blood to Sartor. Sartor packaged the two tubes in a 

sealed bag and placed them in a “secure fridge.” Sartor filled out a Signature Genomics request 

for genetic testing, and on November 22, 2010, packed the blood and the request in a container 

labeled with a Federal Express tag and placed the package in a FedEx drop-off bin at the DMC. 

 Dr. Bessem Bejjani, the chief medical officer for Signature Genomics in Spokane, 

Washington, averred that Signature Genomics received intact the FedEx package sent by Sartor. 

DNA was extracted and the blood was maintained under refrigeration at Signature Genomics. 

On December 10, 2010, Mr. Babiarz instructed Signature Genomics to send the blood to 

PreventionGenetics. Dr. Marwan Tayeh, a clinical molecular geneticist at PreventionGenetics, 

received the FedEx package from Signature Genomics on December 14, 2010. It contained one 

tube of blood labeled with Markell’s name and birth date. Mr. Babiarz asserted that the 

 

23 “ARUP” refers to a lab in Utah. The microarray study it performed is inconsequential. 
-44- 

affidavits and deposition testimony substantiating these facts sufficed to satisfy any chain of 

custody concerns. 

 Mr. Fieger complained that defendants had failed to produce every person who had 

touched the blood during its travels, and pointed out that one of the tests done at Signature 

Genomics reported that the blood contained male chromosomes. Judge Nichols then ruled, 

“[E]very item that plaintiff raises in this regard goes not to admissibility but to weight. Plaintiff 

must let the jury decide that. The Court’s opinions on whether or not and what the jury will do 

with it is irrelevant.” Judge Nichols continued: “At this point, the matter goes forward and the, 

the chain of custody has been reasonably satisfied as far as this Court is concerned and it is now 

incumbent [upon] the parties to address the question of weight which they will do during the 

trial.” Although this ruling seems relatively straightforward, it disintegrated into many pieces at 

the trial. 

 The court then turned its attention to whether the gene sequencing test qualified as 

reliable. Mr. Fieger asserted that he intended to challenge both the “scientific reliability” of the 

test and “the scientific basis of the conclusions” offered in the report, which he characterized as 

“if you have these genes you have this disease.” Judge Nichols advised Mr. Babiarz: 

 You need to satisfy the Court by a preponderance of the evidence that . . . 

the tests done here is [sic] not novel and invented by Marwan Tayeh, number one 

. . . . And number two, that the tests for genetic sequence allows the argument to 

the jury that there is a diagnostic human disease here that you can argue. 

The court then took telephone testimony from Dr. Tayeh, who testified that the gene sequencing 

study he performed was the “gold standard method” and had been in existence “for a long time.” 

He asserted that DNA sequencing is reliable and has been subjected to peer-review testing. Dr. 

Tayeh further claimed that “[w]hat we found is consistent with the diagnosis” of PCH. During 

deposition testimony later read to the jury, Dr. Tayeh displayed a test tube with three labels, each 

bearing Markell’s name, and stated that the blood used to conduct the genetic testing came from 

that tube. PreventionGenetics also kept a log listing the names of every person who had received 

and handled the blood. 

 On September 20, 2011, the parties again gathered in Judge Nichols’s courtroom to argue 

about the trial exhibits. During the arguments, Judge Nichols and Mr. Babiarz engaged in the 

following exchange regarding plaintiffs’ chain of custody challenge to the admissibility of the 

PreventionGenetics report: 

Mr. Babiarz: Your Honor, since the Court has already ruled that the 

chain of custody is not relevant what’s the -- 

The Court: Hold on, hold on -- 

Mr. Fieger: No. 

The Court: -- Mr. Babiarz, I don’t like you misstating things I say. 

Mr. Babiarz: I’m sorry if I did, your Honor. 
-45- 

The Court: And I don’t like it if Mr. Fieger does too, but I seem to hear 

it more from you. And you misstate what I say. 

Mr. Babiarz: Okay, maybe I did, your Honor. 

The Court: I didn’t say they weren’t relevant. 

Mr. Babiarz: Well yesterday, your Honor, you ruled that the chain of 

custody that he had failed to meet his burden attacking our chain of custody. That 

was my understanding of your ruling. 

The Court: I, I said that -- I’m saying his arguments go to an argument 

to be made before the jury. Can they -- can they trust this chain or not. It’s not 

me that can make that decision, that’s what I’m saying. 

 At the end of that day, Judge Nichols issued a four-page opinion and order titled: 

“Opinion and Order Denying Plaintiff’s Objections to Defendants’ Genetic Testing.” In his 

opinion and order, Judge Nichols addressed only “the Court’s findings on the reliability of that 

testing.” After summarizing the PreventionGenetics report and Dr. Tayeh’s testimony, Judge 

Nichols concluded in relevant part: 

 Having considered the arguments, the testimony of Tayeh, and referenced 

publications, the Court finds that the genetic testing methodology is reliable 

within the scientific community and is sufficiently based on discoveries of 

mutations that identify a genetic defect consistent with [PCH]. While Plaintiff 

argues no article exists establishing that a genetic defect in TSEN54 causes 

[PCH], the very title of Budde states just that -- mutations cause cerebellar 

hypoplasia. Moreover, while the articles use adjectives like “associated”, 

“corresponds” and “is responsible for most patients with [PCH-2]”, Tayeh 

testified that more probable [sic] than not, and based on the gene being reported 

several times with patients having [PCH], the genetic defect is the cause of 

Plaintiff’s [PCH]. 

 To conclude, the Court finds the genetic testing and application in this 

case reliable under MRE 702 and existing law. 

 During the presentation of plaintiffs’ proofs at trial, defendants frequently referenced the 

PreventionGenetics report. Dr. Soffer admitted that Markell tested positive for PCH-2. Dr. 

Gabriel acknowledged that PreventionGenetics “confirmed by DNA testing” that Markell has 

PCH. Kimberly VanSlembrouck, too, was questioned regarding her knowledge of the genetic 

testing results. 

 Although defendants freely referenced the report when cross-examining plaintiffs’ 

witnesses, confusion regarding the report’s admissibility surfaced during Mr. Babiarz’s 

examination of the first defense witness, Yoram Sorokin, M.D., on the tenth day of the trial. 

Despite the trial court’s rulings that (1) the report was scientifically reliable and admissible under 

MRE 702, and (2) whether the chain of custody had been satisfied would be for the jury, Mr. 

Fieger objected when Mr. Babiarz attempted to question Dr. Sorokin about it: 
-46- 

 Q. Doctor, have you seen the report from PreventionGenetics? 

 A. Yes. 

 Q. Would that support your conclusion? 

Mr. Fieger: Objection. That’s not in evidence. 

The Court: Sustained. 

Mr. Babiarz: Your Honor, it’s been admitted as an exhibit I thought. 

Mr. Fieger: It has not. There’s -- 

The Court: Sustained. 

Mr. Fieger: Thank you. 

The Court: The ruling necessarily been as to its admission or not, [sic] 

the ruling is as to his ability to do -- testify to that topic matter. 

 BY MR. BABIARZ: 

 Q. Doctor, if this child has been found to have a genetic disease 

would that assist your, your -- confirm your belief that labor and delivery did not 

cause her harm? 

 A. It will not change . . . my opinion. 

 Q. Would it support your opinion? 

 A. Yes. 

 At the close of Dr. Sorokin’s testimony and after the jury had been excused for the day, 

Mr. Fieger raised the chain of custody with the trial court: 

Mr. Fieger: Okay. I foresee a problem, your Honor, arising tomorrow. 

I want to alert the Court, I don’t know if you want to deal with it now or 

tomorrow morning? But Doctor Milunsky is a geneticist and there has been no 

chain of custody evidence here. 

 And your order is quite clear and you can’t start putting in this evidence 

without having a chain of custody, he just doesn’t get it miraculously in. 

The parties then embarked on a lengthy discussion (19 pages of transcript) regarding the chain of 

custody issue. 

 Mr. Fieger argued that Judge Nichols’s original order for the genetic testing required that 

the DMC accomplish the testing. According to Mr. Fieger, Mr. Babiarz “ignored your order and 
-47- 

started sending blood all over the world. And so tests got conducted in Washington, in Salt Lake 

City, in Washington again and then in Wisconsin.” Mr. Fieger continued: “[W]e probably 

[would] not have a chain of custody problem if your order had been followed. But instead now 

and you’ve ordered that I’m entitled to contest the chain of custody.” 

 Mr. Babiarz responded in relevant part: 

 Your Honor, we had a hearing a couple weeks ago on the chain of custody 

and you, you took testimony from Doctor Tayeh and some deposition testimony 

and affidavits were brought to your attention which clearly established a clear 

chain of custody. 

 You found that the chain of custody he be allowed to attack it, it went to 

weight not admissibility, that was the Court’s finding. He can attack the chain all 

he wants, but we’ll establish without any doubt that there’s a good secure chain of 

custody pursuant to Michigan law. 

* * * 

 . . . [Y]ou made a ruling that you found the chain of custody to be 

sufficient under Michigan law. It went to weight not admissibility and Mr. Fieger 

could attack it. 

 So here’s what we’re left with. You found that the, the admissibility of 

the document was in. It was admissible but the weight of it was in question and 

you found it was reliable. 

 So, therefore, under Michigan law under 901 it meets all the criteria for 

inclusion as an exhibit. 

 Judge Nichols seemed to have difficulty recalling his ruling, and indicated: “I speak 

through a written order.” Mr. Babiarz offered to “bring in an order that conforms with what you 

said from the bench[.]” Judge Nichols stated, “Well I’m not going to sign it tomorrow morning 

in view of this objection.” After further argument, the court stated that in making its prior ruling, 

“I did not say that it was authenticated.” The court continued, “[B]ut if a witness sits up here and 

testifies that, that it was marked and you know they’re reasonably satisfied that it is what came 

from DMC then they’re going to satisfy it. You can argue all you want to the jury.” 

 Mr. Fieger continued to argue that no chain of custody could be established. Mr. Babiarz 

pointed out that Dr. Milunsky was scheduled to testify the next day, and that was the only day 

that he could appear. And defendants could not establish the chain of custody prior to Dr. 

Milunsky’s testimony, Mr. Babiarz asserted. The Court ruled, “I mean it’s conditional 

admissibility. . . . [I]t’s not a burden that’s impossible to overcome, but there’s got to be some 

reasonable satisfaction that this DMC sample is the one that ended up where it ended up.” The 

issue closed for the day with Judge Nichols’s admonition: 

 Okay, so we’re not done yet. So we’re going to proceed tomorrow and do 

remind me, I’ll tell the jurors this is conditional admissibility depending upon 
-48- 

whether or not chain of custody has been established, but which is also a question 

they’re going to answer to their satisfaction. 

 The next morning, the parties again took up the chain of custody issue. The judge stated: 

“But you know it’s not -- folks, we’re elevating this thing to way out of proportion. Chain, chain 

of custody is simply the jurors[’] satisfaction that the blood sample started at DMC. It’s a blood 

sample in Wisconsin.” Mr. Fieger requested that the court instruct the jury that the 

PreventionGenetics report was “not in evidence yet.” The Court evidently agreed, stating 

“[Y]ou’ve not asked for a formal admission of the sample into evidence and it’s not in 

evidence.”24 Mr. Babiarz then moved for the introduction of “the PreventionGenetics exhibit.” 

Mr. Fieger objected, asserting: “He wants to put it in without having to put in the chain of 

custody.” The following colloquy ensued: 

Mr. Babiarz: Your Honor, you ruled that the chain of custody had been 

satisfied and the cases we cited in a civil case you don’t have to bring in every 

person that handled it. In the cases we cited -- 

The Court: I agree. 

Mr. Babiarz: -- say you can establish chain of custody by direct, indirect 

and circumstantial evidence. 

The Court: You know what--you know whether I do it or not I’m still 

going to let the jurors know that they’ll need to be reasonably satisfied because 

it’s their question, not the Court’s. Okay? 

Mr. Babiarz: Fair enough, Your Honor. 

The Court: So I’m going to let them know one way or another. Again, 

we’re making . . . a mountain out of a mole hill. 

 During Dr. Milunsky’s testimony, defendants displayed the PreventionGenetics report to 

the jury. Mr. Fieger asked for an instruction. The court complied: 

 Ladies and gentlemen, let me--let me bring this to your attention. Facts or 

data upon which an expert bases his opinion normally must be in evidence. The 

Court can in its discretion allow . . . proposed testimony with a condition that the 

evidence will be admitted later. 

 Previously at a hearing that you need not be concerned with I made the 

decision to allow it for that hearing. That, however, is not binding on you in 

 

24 Here and elsewhere in the record, the Judge seemed confused about whether defendants 

intended or needed to introduce the actual blood “sample,” or the report of the testing. 
-49- 

terms of whether you believe it is what defendant says it is, that is the blood 

sample of Markell. 

 In other words, I’m admitting this testimony conditionally based on this 

sample here, but it’s up to at least six of you to decide it is the blood sample of 

plaintiff Markell, okay. Got that? 

 When testimony concluded on October 6, Mr. Babiarz’s co-counsel again brought up the 

chain of custody issue: 

Ms. Andreou: Actually I have -- tomorrow, your Honor, we have Doctor 

Quinn[t] but what I would like to give Mr. Fieger a heads up on is that as it relates 

to chain of custody if there’s still a question in the Court’s mind we do have the 

deposition of -- 

The Court: Okay. What do you mean if there’s a question in the Court’s 

mind? 

Ms. Andreou: Well if we need further evidence on that. 

The Court: Folks, I’m not the one you have to convince. 

Ms. Andreou: Okay. 

The Court: You have six people here that will need to decide. I’ll say it 

one more time and I’m not going to say it again, that the sample blood from DMC 

was what ended up in Wisconsin. Okay. 

Now if Mr. Fieger wants to keep poking holes at it and poking holes at it 

then you know maybe you go through the chain, you show it. I can’t tell you how 

to practice. [Emphasis added]. 

Subsequently, defendants read into the record the deposition testimonies of Sartor, Bejjani, and 

Tayeh. 

 When questioning of defendants’ final witness concluded, the following colloquy ensued: 

The Court: Does defendant have any other witnesses? 

Mr. Babiarz: No, your Honor. But . . . before we rest we would like to 

offer our exhibits and identify them for the jury if we may. 

Mr. Fieger: They’ve already been--they’ve been accepted into 

evidence, Judge, way before this trial started. 

Mr. Babiarz: Okay, I won’t rattle them off then your Honor. 

The Court: Okay. No other witnesses? 
-50- 

Mr. Babiarz: Yeah, and . . . I just want to make clear we are offering the 

PreventionGenetics report, your Honor, as an exhibit. 

* * * 

The Court: Mr. Fieger, do you have any rebuttal? 

Mr. Fieger: No, your Honor. 

The Court: Ladies and gentlemen, we’re ready for closing arguments 

tomorrow morning. The game plan I think will be like this, we’ll start--they can 

take a total together up to three hours. Not apiece, they’ll take an hour and a half 

most, okay. It doesn’t mean they have to. I keep telling them that, but I keep 

telling them that I’m going to tell you, remind you that what they say is not 

evidence. They’re going to marshal the facts according to the way they see them 

as it pertains to their clients, okay. 

 But the evidence comes from what you’ve heard here on the witness stand 

and the exhibits that have been offered and received. So hold them to that test. 

 During closing argument, Mr. Babiarz referenced the chain of custody issue: 

Let’s talk a little bit about the chain of custody. You heard -- and it’s a 

little bit boring to have depositions read to you, but -- and Mr. Fieger said we 

were boring the jury. Well, the reason we had to do that is because he was 

questioning the chain of custody and those long and boring questions were the 

ones being asked by his partner which he refused to read. But, let’s look at the 

chain of custody. October second the Court orders a blood draw of Markell 

Vanslembrouck [sic]. November 19th, 2010, blood drawn at DMC Nicole Fuller. 

November 22nd, blood sent from DMC to Signature Genomics (ph). You heard 

the deposition of Ms. Sartor (ph) with FedEx tracking number 796477091951. 

November 23rd, blood received by Signature Genomics from DMC per the 

deposition of Dr. Bejoini (ph), exact same tracking number. December 13th, 

blood sent from Signature Genomics in Spokane to Prevention Genetics in 

Wisconsin per the deposition of Dr. Bejoini [sic], FedEx tracking number 

received, same tracking number -- or sent rather with this tracking number. 

Received by Prevention Genetics from Signature Genomics per the deposition of 

Dr. Tayeh (ph) with the exact same FedEx tracking number. And, then on 

January 24th after they complete their testing what do they report? Molecular 

genetics report by Prevention Genetics, [PCH], subtype two and four, TSEN-54 

gene sequencing positive. There was never any break in the chain of custody. 

And, we are obligated to read those depositions to you to link that up. 

Again, if Mr. Fieger questioned the chain of custody, why didn’t he have 

the blood tested. Why didn’t he have the parents tested? He didn’t do it. 
-51- 

This excerpt tends to indicate that the report was, in fact, admitted in evidence.25

 Nevertheless, defendants filed a motion for JNOV, contending that the trial court erred by 

excluding the report. During oral argument regarding that motion, plaintiffs’ counsel (Mr. 

Beam) and the trial court questioned Mr. Kamenec, representing defendants, regarding whether 

he contended that the report had not actually gone to the jury. Mr. Kamenec responded, “I don’t 

know if it went to the jury. It was never admitted.” Mr. Beam represented: “It went to the . . . 

jury, Your Honor, as far . . . as I know. And if it didn’t go to the jury, that was . . . nobody’s 

fault but defense counsel.” After more argument, the judge stated: “I have no doubt that it went 

to the jury.” 

B. ANALYSIS 

 Defendants premise their legal argument on their claim that Judge Nichols refused to 

admit the PreventionGenetics report in evidence. Although the numerous and protracted 

arguments regarding the report reflect some inconsistency and lack of clarity on Judge Nichols’s 

part, he found that the jury was provided with the report and the record tends to support this 

finding. 

 Plaintiffs’ “chain of custody” challenge to the report rested on a factually unsupported 

allegation that the blood tested at PreventionGenetics was not Markell’s blood. Defendants 

argued that any gaps in the chain of custody of Markell’s blood from the time it was drawn until 

the time it allegedly arrived in Wisconsin went to the weight of the evidence, not its 

admissibility. Assuming that plaintiffs’ chain of custody argument had any merit whatsoever, 

defendants are correct. Moreover, the trial court agreed with defendants. 

 Plaintiffs’ chain of custody argument boiled down to an assertion that defendants never 

properly authenticated the PreventionGenetics report. MRE 901 sets out the “requirement of 

authentication or identification” and governs our analysis of this issue: 

(a) General Provision. The requirement of authentication or 

identification as a condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter in question is what its proponent 

claims. 

 

25 And even assuming that it was not, the issue was squarely placed before the jury throughout 

the trial. Mr. Babiarz summarized during his closing argument: 

 To their credit though they all agree there’s a genetic defect of the brain 

and they all agree it occurred in the first or second trimester of pregnancy, they 

just won’t acknowledge what it is or what the significance of it [is]. They won’t 

admit this child has [PCH] even though it’s been tested with DNA certainty. 

[Emphasis added]. 
-52- 

(b) Illustrations. By way of illustration only, and not by way of 

limitation, the following are examples of authentication or identification 

conforming with the requirements of this rule: 

 (1) Testimony of Witness With Knowledge. Testimony that a matter is 

what it is claimed to be. . . . 

 “Evidence sufficient to support a finding means evidence upon which a reasonable jury 

could find by a preponderance of the evidence an item to be what the proponent claims it is.” 2 

McCormick, Evidence (7th ed), § 212, p 6. The judge has a “limited screening role” in making 

this determination. Id. “If a witness has personal knowledge and gives direct testimony on the 

matter, this is sufficient.” Id. at 6-7. 

Here, the question confronting Judge Nichols was whether PreventionGenetics tested 

Markell’s blood or that of someone else. Dr. Tayeh testified that PreventionGenetics tested a 

blood sample contained in a tube labeled with Markell’s name. That evidence sufficed to satisfy 

MRE 901. Notably, plaintiffs identified no evidence supporting a gap in the chain of the blood’s 

custody along the path it traveled to PreventionGenetics. Assuming for the sake of argument that 

the side trip to Signature Genomics introduced some uncertainty regarding the integrity of the 

blood sample, the trial court correctly allowed the jury to consider the significance of this detour. 

 “Once a proper foundation has been established, any deficiencies in the chain of custody 

go to the weight afforded to the evidence, rather than its admissibility.” People v White, 208 

Mich App 126, 133; 527 NW2d 34 (1994). Plaintiffs’ unsubstantiated claims that the chain of 

custody had been broken did not preclude the report’s admission. Rather, plaintiffs’ fanciful 

concern that somehow other blood was substituted for that of Markell affected only the weight of 

the evidence. Id. And although Judge Nichols perhaps could have been more consistent, his 

core ruling—that it was for the jury to decide whether to credit that the blood sampled was that 

of Markell—remained unchanged.26 The record further indicates that on more than one 

 

26 Moreover, we believe that the chain-of-custody argument was legally baseless, and that Judge 

Nichols should have ended this controversy well before trial. Defendants sought to introduce the 

PreventionGenetics report, not the blood sample itself. The report was clearly admissible under 

MRE 803(6), which provides an exception to the hearsay rule for records of regularly conducted 

activity: 

A memorandum, report, record, or data compilation, in any form, of acts, 

transactions, occurrences, events, conditions, opinions, or diagnoses made at or 

near the time by, or from information transmitted by, a person with knowledge, if 

kept in the course of a regularly conducted business activity, and if it was the 

regular practice of that business activity to make the memorandum, report, record, 

or data compilation, all as shown by the testimony of the custodian or other 

qualified witness, unless the source of information or the method or 

circumstances of preparation indicate lack of trustworthiness. The term 

“business” as used in this paragraph includes business, institution, association, 
-53- 

occasion, Judge Nichols stated that the report satisfied the standard for admissibility with the 

caveat that plaintiffs remained at liberty to attack the chain of custody. 

 Nor do we perceive that Judge Nichols “denigrated” the report in the jury’s presence. 

While we agree that Judge Nichols should have ruled more forcefully at the outset that the 

physical document containing the report would be admitted, the jury was well aware of its 

contents. We find no error regarding the PreventionGenetics report warranting reversal. 

VI. THE ARGUMENT OF PLAINTIFFS’ COUNSEL 

 Defendants assert that Mr. Fieger’s misconduct “permeated this trial, and overshadowed 

the legitimate defense argued to the jury.” According to defendants, Mr. Fieger employed his 

“signature trial strategy” of accusing defendants and their witnesses of lying, conspiring, 

covering up, and fabricating evidence. Mr. Fieger’s misconduct reached its zenith, defendants 

insist, when he urged the jurors during closing argument “not to kill Markell.” 

The following framework guides our evaluation of this argument: 

 When reviewing an appeal asserting improper conduct of an attorney, the 

appellate court should first determine whether or not the claimed error was in fact 

error and, if so, whether it was harmless. If the claimed error was not harmless, 

the court must then ask if the error was properly preserved by objection and 

request for instruction or motion for mistrial. If the error is so preserved, then 

there is a right to appellate review; if not, the court must still make one further 

inquiry. It must decide whether a new trial should nevertheless be ordered 

because what occurred may have caused the result or played too large a part and 

may have denied a party a fair trial. If the court cannot say that the result was not 

affected, then a new trial may be granted. Tainted verdicts need not be allowed to 

profession, occupation, and calling of every kind, whether or not conducted for 

profit. [Emphasis added.] 

No evidence supported that the “circumstances of preparation” of the report indicated a lack of 

trustworthiness. Before trial, defendants established that the report was created and kept in the 

regular course of business. This foundation sufficed for admission of the document. Not a shred 

of evidence or shadow of reasonable inference supported that the blood tested did not come from 

Markell. Accordingly, the report was admissible under MRE 803(6). See Merrow v Bofferding, 

458 Mich 617, 626-627; 581 NW2d 696 (1998). 

 Although the issue has not been considered in Michigan, we are of the view that “chain 

of custody” arguments such as the one advanced by plaintiffs apply only to physical evidence or 

to “time-sensitive tests” taken when an event, arrest, or accident occurs, such that the result 

“cannot be replicated outside that time frame.” Ex parte Dep’t of Health & Environmental 

Control v Doe, 350 SC 243, 248-249; 565 SE2d 293 (2002). No chain of custody analysis was 

warranted here, as retesting could have readily confirmed the accuracy of the PreventionGenetics 

report, adding to its trustworthiness. 
-54- 

stand simply because a lawyer or judge or both failed to protect the interests of 

the prejudiced party by timely action. [Reetz v Kinsman Marine Transit Co, 416 

Mich 97, 102-103; 330 NW2d 638 (1982).] 

A lawyer’s comments will usually not be cause for reversal unless they indicate a 

deliberate course of conduct aimed at preventing a fair and impartial trial or 

where counsel’s remarks were such as to deflect the jury’s attention from the 

issues involved and had a controlling influence on the verdict. [Ellsworth, 236 

Mich App at 191-192.] 

A. THE TRIAL 

 Before we describe the episodes of claimed misconduct, we offer the following overview. 

The record in this case reflects that counsel for both sides argued with each other incessantly, 

delayed the trial by making long-winded and legally meritless objections, interjected snide, 

sarcastic remarks at every opportunity, and otherwise acted unprofessionally on a daily basis. 

Neither came close to modeling acceptable courtroom behavior. Judge Nichols’s frustration with 

the behavior of the lawyers emerged on several occasions. The following excerpts from just one 

trial day (September 27) illustrate the combative atmosphere that permeated these proceedings: 

Mr. Fieger: You told us earlier there were no abnormal. Here’s two 

abnormal and then there’s a third one. A three hour glucose tolerance test was 

done. It had one abnormal value, did you write that? 

A. I did write that. 

Q. Okay, now -- 

A. Well, like I explained the one hour -- the three hour with one abnormal 

does not make a patient a diabetic. 

Q. And, the other two were just one number below abnormal, weren’t 

they? 

A. It was normal test. 

Q. Please it will be much easier. I’m just asking. The other two that 

[you] say were normal was one number below abnormal, wasn’t it? 

A. It was one below the upper limit of the normal. 

Q. Right. So, if it had been one higher it would have been abnormal, the 

other two right? 

A. Yes. 

Mr. Babiarz: Your Honor, objection. If wishes were horses, beggars 

would ride. The test was normal. 
-55- 

Mr. Fieger: What does this -- 

The Court: What is your objection? I would appreciate not little phrases 

of Dickens of whoever is, but the, you know -- 

Mr. Babiarz: He’s arguing with the witness, that’s my objection. 

The Court: Well, they went through different wording processes and, if 

anything Mr. Fieger, it’s not necessary that you summarize his statement; likewise 

with you. 

* * * 

Q. She was actually -- they used an ultrasound on her didn’t they on those 

pre-hospital admissions? 

A. I believe they did just to check the position of the baby. 

Q. And, the other -- if you want to you can check the size of the baby 

can’t you? 

A. Yes. 

Q. But, nobody did that apparently? 

A. What happened -- 

Q. Yes or no, did anybody do that? 

A. No. 

Q. Okay. I didn’t ask for excuses, I’m just asking for facts. 

Mr. Babiarz: Your Honor, that’s argumentative -- 

The Court: I agree. That will be struck from the record. 

Mr. Babiarz: Move to strike. 

The Court: I agree. 

Mr. Fieger: We’ll get -- I’ll get -- I’m not trying to be argumentative with 

you, I’m just trying to get you to answer my questions. 

Mr. Babiarz: Could have fooled me, Your Honor, that was argumentative. 

The Court: Both comments will be struck. Just ask the question please. 

* * * 
-56- 

Q. And then we -- she comes into the hospital on the first of December, 

right? 

A. Yes. 

Q. Now, apparently there was another patient there by the name of 

Vergelt, you know that right? 

Mr. Babiarz: Your Honor, I’m going to object because the records will 

show that Ms. Vergelt wasn’t even in the hospital -- 

Mr. Fieger: These aren’t objections. He is just testifying. He has 

obstructed this testimony Your Honor, for the last hour. 

Mr. Babiarz: Your Honor, this is a mischaracterization. He said and there 

was another patient there. There was no another [sic] patient there, and that’s a 

fact and he’s mischaracterizing the testimony. 

Mr. Fieger: He can’t testify. 

The Court: Ladies and gentlemen I’m beginning to think we need a time 

out and I’m almost thinking about sending you home today and coming back 

tomorrow if this continues. I will -- it’s not fair to you and with the inherent 

authority I have, there’s no direct authority on this. I believe I can give these 

gentlemen a timeout and we can come back tomorrow. 

Gentlemen if this continues that will happen. That’s my word to you. 

You’re objection’s overruled. It’s a part of the testimony. 

Mr. Fieger: Thank you, Your Honor.[27]

 

27 Before trial commenced, Messrs. Babiarz and Fieger had demonstrated hostility, 

intemperance, and plain rudeness on numerous occasions, particularly during the Daubert

hearing. The trial court expressed its exasperation more than once. During a 2010 hearing 

regarding defendants’ motion for genetic testing, Judge Nichols’s had endured enough: 

The Court: By the way, Mr. Beam, both of you; I am going to 

command this lawsuit like a dictator because you two are misbehaving and so 

impolite with one another that I am going to run it like a dictator. 

 My rule is law and when I tell you to jump you are to say how high. I am 

not taking any garbage on this, and I mean no affront to either one of you. Both 

of you -- this is a high -- this is one of the most contentious litigious cases I’ve 

ever had so I run it like a dictator. 
-57- 

 Defendants argue that Mr. Fieger improperly interjected unfounded allegations of coverup, conspiracy, and perjury during his questioning of the witnesses. To be sure, Mr. Fieger, did 

sound those themes during the trial. Defendants assert that similar conduct was condemned by 

this Court in Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 289-294; 602 

NW2d 854 (1999): 

 Throughout the entire trial, plaintiff’s lead trial counsel completely tainted 

the proceedings by his misconduct. For example, through innuendo and direct 

attack, plaintiff’s lead trial counsel repeatedly and with no basis in fact accused 

defendants and their witnesses of engaging in conspiracy, collusion, and perjury 

to cover up their alleged malpractice. Plaintiff’s lead trial counsel continually 

accused defense witnesses of fabricating, in response to the instant litigation, the 

defense that plaintiff had a rare, severe reaction to streptokinase that caused his 

injuries. Indeed, this appeared to be his main theme. Plaintiff’s lead trial counsel 

also repeatedly belittled defense witnesses and suggested, again, with no basis in 

fact, that they destroyed, altered or suppressed evidence. [Id. at 290-291 

(emphasis added).] 

 Unlike Badalamenti, however, this case actually did present legitimate questions 

regarding the integrity of the medical records. Defendants admitted that Dr. Halperin confused 

Mrs. Vergeldt with Mrs. VanSlembrouck when he dictated the VanSlembrouck discharge 

summary, resulting in the entry of erroneous information in Kimberly’s medical record. The 

alteration of the Vergeldt baby’s estimated fetal weight gives rise to a reasonable inference that 

whoever changed the 3 to a 4 thought the alteration was being made in the VanSlembrouck 

record to coincide with Markell’s large size. Additionally, Dr. Halperin ordered an umbilical 

arterial blood gas that would have provided probative information as to whether Markell had 

sustained birth hypoxia, but that test was not done. The medical record simply indicates without 

further explanation that the study was “cancelled.” While defendants eventually produced 

evidence that the study was cancelled because an insufficient volume of blood was submitted to 

the lab, this explanation emerged late in the case and Judge Nichols refused to allow the jury to 

hear it. Additional background regarding the blood gas study places some of Mr. Fieger’s trial 

comments in fuller context. 

 During discovery, plaintiffs repeatedly requested that Beaumont produce Markell’s 

complete medical record, including the umbilical blood gas result and the discharge summary for 

Markell’s 18-day stay in the Special Care Nursery. No additional records were produced. 

Defendants advised that a short note written in Markell’s medical record constituted her 

discharge summary, although it was not formally designated as such. 

 Plaintiffs deposed Dr. Halperin in December 2009, and asked him why the arterial blood 

gas studies had been cancelled. Dr. Halperin stated: “I didn’t know they were cancelled.” 

Approximately a month before the Daubert hearing, defendants produced a document called an 

“audit trail,” which defendants claimed was generated “only in response to Plaintiff[s’] false 

allegation that Defendants destroyed and/or discarded an arterial blood gas sample.” The audit 

Unfortunately, despite this admonition, the antics continued. 
-58- 

trail apparently indicated that the test was not done because an insufficient volume of arterial 

blood had been obtained. The trial court precluded defendants from using the audit trail at the 

trial, finding that they had obtained it well before providing it to plaintiffs and had deliberately 

withheld it. The trial court’s order further provides: “The document, even if admissible under a 

proper foundation, presents an unfair surprise and is prejudicial to Plaintiff[s] when the trial is 

imminent in that it is less than one week away.” 

 The absence of a formal discharge summary in Markell’s chart also engendered 

controversy. The parties argued at great length about whether the Joint Commission for the 

Accreditation of Hospitals (JCAH) required a formal discharge summary for a newborn treated 

in a Special Care Nursery. Mr. Fieger told the court that he intended to use the absence of a 

discharge summary as evidence of a missing record and concealment. Ultimately, the trial court 

denied plaintiffs’ motion to give a missing record instruction and curtailed further discussion 

regarding the JCAH standards. 

 Defendants contend the following questioning of Dr. Schifrin regarding the blood gas 

results demonstrates Mr. Fieger’s misconduct: 

Mr. Fieger: Why is it so important to take an arterial blood gas, Doctor? 

A. Well you want to understand the mechanism of problems that the baby 

might have. 

Q. What do you mean you want to understand? What if you don’t want to 

understand the mechanism of problems? What if you don’t want to see or 

anybody else to see what really happened? 

Mr. Babiarz: Your Honor, I think this is argumentative. What if you 

don’t want someone to see I mean it’s -- 

Mr. Fieger: Well if you don’t want -- let me answer [sic] it another way. 

If you don’t want somebody to look or see what really happened is a way to 

prevent that by not being honest in the operative note and not being -- taking the 

tests that show it? 

Mr. Babiarz: Your Honor, again that’s argumentative. 

The Court: That kind of assumes a fact the jury hasn’t even been asked to 

decide yet. 

Mr. Fieger: Okay. 

The Court: It’s kind of like -- so we need to rephrase it again. 

Mr. Fieger: I will. If you don’t do these tests or describe it how will 

anybody coming later know? 
-59- 

A. One, obviously you can’t know and as I said it was obviously at least a 

passing through for several people and would ordinarily have been an indication 

on the basis of either the tracing, the impression of the baby at birth would 

normally have required a, a, a cord blood sample. 

Q. Is there any indication in this chart why it wasn’t taken? 

A. No. Further than that there is the -- appears to be the affirmative 

not[at]ion that it was canceled. See it’s not a question of somebody gave the 

order, they did it, it was lost or forgot to do it or it was lost. Somebody actually 

canceled the order. 

Q. Now this says here also the infant was taken over to the special care 

nursery for observation due to the baby’s size. Is that even a true statement? 

A. Well I’m sure there may have been some -- 

Mr. Babiarz: Your Honor, he’s, he’s – [Badalamenti]. The case law is -- 

the records say what they say. It’s not an expert’s role to say that the records are 

somehow inaccurate or misleading. [Badalamenti]. He cannot -- he may disagree 

what’s in the record, but he can’t say this is someone wrote this and -- wrote this 

in or anything of the sort. 

Mr. Fieger: [Badalamenti] is my case, my response is but beyond that the 

records are replete in this case that the baby suffered severe injuries that are 

documented. Except Doctor Halperin says they were taken over for observation 

to do [sic] the baby’s size, which are contradictive [sic] by the records in the 

chart, Judge. 

Mr. Babiarz: Your Honor – 

Mr. Fiegier: So I’m asking him if that’s -- 

The Court: Rephrase the question. 

Mr. Fieger: Okay. Does this in any way -- the infant was taken over to 

the special care nursery for observation. In any reflect the injuries that the -- that 

are reflected in this chart? 

A. The answer is no not at all, but what I was trying to say is the baby’s 

large size. So small fraction is baby’s size, but that it not in any way, shape or 

form what is compelling about getting this baby to special care. 

 Mr. Fieger’s questioning does not rise to the level of reversible misconduct. The 

inquiries were designed to highlight the medical record discrepancies that had been brought to 

light during the trial, the absence of an arterial blood gas result, and to infer that defendants’ 

stated reason for admitting Markell to the Special Care Nursery—her large size—was incorrect 

or incomplete given her impaired neurological condition. These were genuine issues in the case. 
-60- 

In Reetz, our Supreme Court declined to find comments regarding a party’s untruthfulness 

improper when some evidence supported that inference: 

If, as in this case, the testimony of a witness for the plaintiff directly contradicts 

the testimony of a witness for the defendant, and there is no reason to believe that 

an honest mistake has been made, so that one witness must be fabricating, each 

counsel has the right to argue that his witness speaks the truth while the other 

presents a fabrication. [Reetz, 416 Mich at 109.] 

Despite Mr. Fieger’s unnecessary inference that defendants did not want to know what 

happened, because the trial court had excluded the audit trail explanation (a decision that 

defendants do not challenge on appeal), the cited questions do not supply grounds for a new trial. 

 However, we agree with defendants that Mr. Fieger crossed the line on other occasions. 

For example, in examining Dr. Zakalik, a Beaumont neurosurgeon who examined Markell 

during her initial hospitalization and when she was five months old, Mr. Babiarz asked whether 

the doctor had sent a copy of his report regarding Markell to the VanSlembroucks. The doctor 

stated that they had asked for a copy, and that the report specifically stated that Markell had a 

congenital Dandy-Walker malformation. The questioning was interrupted by Mr. Fieger’s 

inappropriate objection and statement: 

 Q. Did Mrs. VanSlembrouck ever call you up and say hey Doctor 

what does this mean? 

 A. Well I talked to her at the office and kind of explained what [a] 

Dandy Walker cyst is. I don’t think we ever talked about it afterwards. 

 Q. Did you explain to her it was your belief -- 

 MR. FIEGER: Objection, leading. 

 THE COURT: It is. 

BY MR. BABIARZ: 

 Q. What would you have explained to her with regard to the timing of 

the injury? 

 MR. FIEGER: Objection. He said what he said already. He’s just 

suggesting say some more, make up some more. 

 MR. BABIARZ: Your Honor, I move to strike that. 

 MR. FIEGER: Judge, this is -- 

 THE COURT: We will strike that. What was the question again? 

[Emphasis added]. 
-61- 

 Defendants have brought to our attention more than two-dozen additional trial excerpts 

that they claim reflect Mr. Fieger’s misconduct. We have reviewed each excerpt and while we 

agree that several comments were unwarranted, we cannot conclude that Mr. Fieger’s 

questioning or comments denied defendants a fair hearing. This was an extraordinarily long trial 

marked by multiple episodes of improper commentary on both sides. The trial court sustained 

Mr. Babiarz’s objections to most of Mr. Fieger’s allegedly improper statements or questions. 

More importantly here, unlike in Badalamenti, a factual basis existed for Mr. Fieger’s inquiries 

concerning whether the medical records and testimony had been altered or fabricated. The 

unnecessary comments, gratuitous interjections, and pursuit of irrelevant lines of inquiry 

identified by defendants played little part in this long trial, likely made Mr. Fieger look foolish 

rather than effective, and do not justify reversal. 

B. THE CLOSING ARGUMENT 

 Mr. Fieger’s closing argument presents a far closer question. Following are the 

comments that raise misconduct concerns: 

Mr. Fieger: . . . I’ve been waiting over seven years for someone to hear 

this case. Markell has waited for 15 years. Mr. Babiarz wouldn’t listen to me. 

He only filed motions to keep me from getting into court -- 

Mr. Babiarz: Your Honor -- Your Honor, I’m sorry; this is improper 

argument. 

The Court: It is. It’s per -- we’ve agreed at the outset we would not direct 

that to the attorney. 

 Mr. Fieger: Beaumont Hospital wouldn’t listen to me. They turned a deaf 

ear to Markell; put up defenses that you’ve heard here today and during the trial. 

Markell and I have waited all these years to be heard. And we’re finally here. 

And I’m eager to make these final statements to you, because in the end, you 

eight people, and when six of the eight of you agree on a verdict, you will be the 

persons who hear us, and who can finally give us justice. 

* * * 

 For 15 years, Kimberly and John have been responsible for the safety of 

Markell and her well-being. They’ve done a magnificent job. And then they gave 

her to me and asked me and I agreed to shoulder the responsibility for Markell’s 

life. Because that’s what we have in our hands right now, her life, in this case, 

and today, in a very, very short while, I’m going to turn over the case to you. I’m 

going to turn over Markell’s life, quite literally, quite literally, to you. And today 

I pray that you treat her with the same compassion and the same justice that all of 

us, all of us, expect in this courtroom, in this -- they call it a temple of justice. 

* * * 
-62- 

 Now we collectively can’t undo what’s been done. We can make her life 

easier until the day she dies. We can also, by your verdict, reach out to others to 

ensure that the injustice that’s gone on here in this courtroom and for the last 15 

years that the Defendant has tried to perpetrate, shall not stand. That Markell’s 

life shall have meaning and shall have not been in vain. 

 It is by virtue, therefore, of what you do and what we say here today by 

your verdict, that we’ll say injustice shall not prevail. 

* * * 

 The damages in this case are what it takes to care for Markell. . . . 

* * * 

 It goes out for 81 years. You will literally hold her life in your hands, 

because if you stop at age 30, you literally will be deciding that at age 30, if she’s 

not dead, then she will be immediately warehoused. If you don’t provide that 

money for her life, you will decide when her life will end, very effectively 

literally. You will decide that. And that is her future medical costs. 

* * * 

 And when he says well, she’s been taken care of well by the taxpayers, the 

VanSlembroucks, so don’t make Beaumont Hospital pay, don’t make them pay 

here; that’s what he is saying. Who do you think is going to care for her? 

 What do we as jurors do about what’s been done here? We have the 

power of justice in our hands. And yes, tomorrow, because in countless other 

cases there’s innocent children being hurt. My question and I ask do we 

recognize the power that we have? Do we understand that in a nation whose laws 

are based on precedent, that there will be an endless line of innocent children who 

will look for guidance by what you do in this case. Do we realize that in the 

future, we will show and need the courage that you can provide here in this case 

by uncompromised justice to other innocent children? Do we understand that our 

verdict today may say -- 

Mr. Babiarz: Your Honor, I’m sorry to interrupt, but I think he’s asking 

the jury to -- to become saviors of children in the future, which is outside the 

scope of this -- this case. 

 The Court: It’s final argument. I’ll instruct you -- 

 Mr. Fieger: Do we understand that by our verdict today, we can save 

other children from these mistakes? 

Now, most of us don’t understand our power. We live so vividly in the 

present that we have little understanding of our consequences in the future. And I 
-63- 

think probably the founders of -- of this country didn’t realize it either. But 

they’re responsible for us being together today 200 years later. But for them, 

there wouldn’t be eight people from Oakland County deciding what’s right and 

what’s wrong. As they met in Philadelphia on that hot summer day to sweat and 

argue in a poorly ventilated place called Constitution Hall, do you think that they 

foresaw that we’d be here today? Do you think that they would have a full 

understanding of the consequences of their actions, their labor, their love of 

freedom, their passion for justice? It was probably most likely just another 

business day for them. Business at hand. The need to act wisely, the need to act 

decisively, to establish a new nation. I doubt they could have understood that a 

jury would be evaluating the life of Markell VanSlembrouck in 2011. 

 So it’s with us. We have the power to do what’s just. We have the power 

to tell the world today that a hospital may not do this to a child. We have the 

power to say they will pay by uncompromised justice. And rarely, as I said at the 

very beginning of this case, does anyone have the opportunity to bring into our 

lives important change. Most of us are never given the chance to exercise the 

God-given power that’s vested in each one of us. It’s wasted. These are rare 

opportunities that respectfully fate has provided. 

* * * 

. . . Her only opportunity -- her only opportunity -- she may never come before 

anyone else again -- to have her day in court, to have justice. So that now, as I 

said to you at the beginning, John and Kimberly have borne that responsibility 

magnificently, and then they placed Kimberly in my care to care for her 

throughout this trial, and now I place that responsibility to you, not only for 

what’s gone on from December 1st through today, but from today, for every year 

she’s likely to live. And you will have her life in your hands, because if you stop 

at any year up until her life expectancy of 81, she will literally be cut off, she will 

literally be warehoused. That day I can promise you will be her death sentence, 

because no -- her parents are not likely to be -- 

Mr. Babiarz: Your Honor, I think this is improper. He’s suggesting to the 

jury we’re condemning this child to death. I think this is improper argument. 

 The Court: We’re almost done, I think. 

Mr. Fieger: Her parents may no longer be here. She will be dependent 

upon the kindness of strangers. She will be dependent upon the kindness of 

strangers. Some of those strangers to her are us. 

I’m now shifting the responsibility for the -- for the days, for the weeks, 

the months, and the years that that little girl has lived on this earth ‘til today, and 

then for day, and then years into the future, I shift that responsibility now to your 

shoulders, and hope that you bear that responsibility with the same majesty, with 
-64- 

the same compassion and with the same sense of justice that we all said is 

inherent and believed in our system of justice. 

 Based on Mr. Fieger’s arguments during closing, defendants sought a new trial. The trial 

court denied this motion, reasoning: 

 Having considered the parties’ arguments and statements cited by 

Defendants, the Court rejects defense counsel’s characterization relative to 

misconduct as exaggerated auxesis, if not false, and a desperate attempt 

epitomized by Defendants to do whatever it takes to overturn what was otherwise 

a fair though fiercely fought medical malpractice trial. In other words, the Court 

finds that Plaintiff[s’] counsel’s statements do not amount to misconduct and did 

not deny Defendants a fair trial. The majority of the statements made by 

Plaintiff[s’] counsel were objected to and addressed by the Court at the time they 

were being made. The jury was regularly instructed that what attorneys say is not 

evidence. In some instances, permissible inferences were made, such as 

alterations of documents, which, just because Defendant[s were] offended, does 

not mean they could not be found among possible conclusions. Still the jury was 

reminded that it was up to them to determine the facts and inferences therefrom. 

And, while misconduct in the form of scorn and contempt did occur during the 

trial, it occurred about equally on each side, was kept to a minimum, and was 

actively and forcefully dealt with by the Court whenever it came too close to 

having an adverse effect upon the trier of fact. For the most part, if not totally, 

any such conduct was from the weariness and fatigue of a lengthy and highly 

contested trial; in no way was it a “deliberate course of conduct” by either side. 

While the trial was both a protracted and vigorous one, the conduct alleged was 

not sufficient to constitute one in which Defendants’ substantial rights were 

materially affected where, as here, the final verdict was 5-2, the two voting “no 

cause”. Given the totality of this approximate four week trial, the Court finds 

misconduct simply did not play too large a part so as to have denied Defendant[s] 

a fair trial. For these reasons and those further stated by Plaintiffs, Defendants’ 

motion for a new trial based on prevailing party misconduct and improper 

arguments are denied. 

 Instruction by a trial court that the statements of counsel are not evidence is generally 

sufficient to cure any prejudice that might arise from improper remarks by counsel. Tobin v 

Providence Hosp, 244 Mich App 626, 641; 624 NW2d 548 (2001). However, this Court will 

order a new trial where the misconduct “may have caused the result or played too large a part 

and may have denied a party a fair trial.” Reetz, 416 Mich at 103. In making this determination, 

a reviewing court must first determine whether the attorney’s conduct constituted error, “and, if 

so, whether it was harmless.” Id. 

Contrary to the trial court’s conclusion, several of Mr. Fieger’s comments did qualify as 

misconduct. Mr. Fieger advanced a “civic duty” argument of the sort condemned in Joba Constr 

Co, Inc v Burns & Roe Inc, 121 Mich App 615, 637; 329 NW2d 760 (1982). Mr. Fieger also

improperly appealed to the jurors’ passions and prejudices by exhorting them not to “decide 

when” Markell’s life would end. Argument of this sort has no place in the courtroom. 
-65- 

 Although Mr. Fieger employed inappropriate and objectionable rhetoric, we cannot 

conclude that his improper remarks reflect a studied effort to divert the jury’s attention from the 

central issues presented in the case. Nor did they have a controlling influence on the verdict. 

 Portions of Mr. Fieger’s argument regarding Markell’s future bore a meaningful 

relationship to the evidence, distinguishing this argument from that in Badalamenti. Here, Mr. 

Fieger urged that if the jury failed to adequately compensate Markell for the future, she would be 

“warehoused” when her parents died. Mr. and Mrs. VanSlembrouck testified that they alone 

cared for their daughter, without assistance from anyone. They expressed concern about what 

would happen to Markell if they could not care for her. Dr. Gabriel testified that children with 

PCH-2 placed in nursing homes were at risk of death during infancy, in contrast to a child such 

as Markell, who received exemplary care at home. Dr. Gabriel specifically used the term 

“warehoused:” “She’s not being warehoused or put off into some institution as so many children 

like Markell were in the past, especially in the past.” Accordingly, issues surrounding Markell’s 

future care and longevity were part and parcel of the case. 

 Furthermore, it appears that in rendering the largest portion of the verdict, that 

representing future economic damages and loss of earning capacity, the jury adopted without 

addition the figures offered by plaintiffs’ economist expert.28 Defendants did not call an 

economist and offered no evidence contradicting these dollar amounts. 

The trial court instructed the jurors that neither sympathy nor prejudice should influence 

their decision. M Civ JI 3.02. The jurors were further instructed that their verdict “must be 

solely to compensate plaintiff for her damages, and not to punish the defendant.” M Civ JI 

50.01. While in Badalamenti, 237 Mich App at 292, counsel sought “to divert the jurors’ 

attention from the merits of the case and to inflame the passions of the jury,” here Mr. Fieger 

confined his comments to the issues that the jury would confront and the facts introduced in 

evidence. And here, unlike other cases involving Mr. Fieger, the evidence regarding economic 

damages was unrebutted. On the whole and in context, we hold that Mr. Fieger’s improper 

comments were not so harmful or prejudicial that the court’s instructions were incapable of 

curing any damage. Judge Nichols was in a far better position than are we to gauge the effect of 

the evidence on the jury and to evaluate the persuasiveness of the experts for both sides. His 

finding that any misconduct did not deny defendants a fair trial is entitled to some measure of 

deference. And although Mr. Fieger’s conduct throughout trial and closing argument was often 

inappropriate and his words inflammatory, we are unable to conclude that the isolated episodes 

of misconduct tainted the long trial or prejudiced its result. 

 

28 The jury awarded $150,000 in past economic damages, $2,500,000 in past noneconomic 

damages, and $11,189,000 for future noneconomic damages, at a rate of $167,000 per year from 

2011 through 2077. The balance represented future economic damages and lost earning 

capacity. 
-66- 

VII. JURY INSTRUCTION CHALLENGES 

 Defendants assert that the trial court erroneously instructed the jury pursuant to M Civ JI 

50.10 and 50.11. According to defendants, neither instruction applied to the facts of this case. 

The former instruction addresses preexisting conditions predisposing a plaintiff to injury, such as 

arthritis or an undetected brain tumor. Defendants declare that PCH is not of that character. 

Defendants insist that no evidence supported that Markell’s underlying genetic condition was 

aggravated by her birth or that her damages were indivisible, the underlying premises of M Civ 

JI 50.11. Plaintiffs respond that defendants waived any challenge to these instructions by failing 

to object to them in a timely manner, and that the two instructions correctly state the law 

applicable to this case. 

 We agree that defendants failed to object to the instructions within the timeframe set forth 

in the trial court’s scheduling order. Nor are we persuaded that defendants’ stated rationale for 

their belated objection justified relaxation of preservation requirements established by the trial 

court. We have considered defendants’ arguments under the plain error standard and find that 

they do not warrant a new trial. 

A. PROCEDURAL BACKGROUND 

 The trial court’s pertinent scheduling order required plaintiffs to submit their proposed 

jury instructions by January 10, 2011. Plaintiffs complied, requesting the reading of M Civ JI 

50.10 and 50.11. These instructions provide: 

You are instructed that the defendant takes the plaintiff as [he / she] finds [him / 

her]. If you find that the plaintiff was unusually susceptible to injury, that fact will 

not relieve the defendant from liability for any and all damages resulting to 

plaintiff as a proximate result of defendant’s negligence. [M Civ JI 50.10.] 

If an injury suffered by plaintiff is a combined product of both a preexisting 

[disease / injury / state of health] and the effects of defendant’s negligent conduct, 

it is your duty to determine and award damages caused by defendant’s conduct 

alone. You must separate the damages caused by defendant’s conduct from the 

condition which was preexisting if it is possible to do so. 

However, if after careful consideration, you are unable to separate the damages 

caused by defendant’s conduct from those which were preexisting, then the entire 

amount of plaintiff’s damages must be assessed against the defendant. [M Civ JI 

50.11.] 

 Defendants filed extensive objections to plaintiffs’ proposed instructions but raised no 

challenge whatsoever to M Civ JI 50.10 or 50.11. At the January 2011 hearing scheduled to 

address jury instruction challenges, defendants again made no mention of M Civ JI 50.10 or 

50.11. Following the hearing, the trial court partially granted defendants’ motion to amend other 

jury instructions and in a February 2011 order, ruled that it would give M Civ JI 50.10 and 50.11. 
-67- 

 In June 2011, defendants filed a new motion regarding the jury instructions, asking for 

“additions” and “clarifications,” and including new “objections.” In relation to the current 

challenge, defendants argued: 

 6. Defendants further object to the giving of M Civ JI 50.10, as it is 

inapplicable to any theory being pursued by Plaintiffs in this case. 

 7. Defendants also object to the giving of M Civ JI 50.11, for the 

same reasons that they object to the giving of M Civ JI 50.10. 

In their accompanying brief, defendants made no effort to justify or explain their delayed 

objections. Rather, defendants argued that plaintiffs had not “conceded that Markell . . . had any 

pre-existing condition which would make her ‘unusually susceptible to injury’ and thus, [M Civ 

JI 50.10] is inapplicable to the facts of this case.” Defendants continued, 

[E]ven if Plaintiffs were willing to concede that genetic testing has demonstrated 

that Markell . . . suffers from [PCH-2], Plaintiffs have set forth no offer of proof 

that such made Markell ‘unusually susceptible to injury;’ rather, this birth defect 

demonstrates that Markell was already injured (and significantly so) prior to the 

events at issue. 

Defendants asserted that a “congenital anomaly is not the type of underlying condition for which 

M Civ JI 50.10 is applicable,” and argued that this reasoning similarly supported their objection 

to M Civ JI 50.11. 

 Plaintiffs objected to defendants’ attempt to revisit the jury instructions, noting that the 

court had already heard arguments on this issue and entered its ruling. Plaintiffs continued, “At 

this point judicial economy would probably dictate that this Honorable Court hear the evidence 

presented at trial before further refining the jury instructions.” Plaintiffs maintained this waitand-see posture when specifically addressing defendants’ objections to M Civ JI 50.10 and 

50.11. Plaintiffs asserted, “[T]his is a classic case for submission of both M Civ JI 50.10 and 

50.11:” 

 In short, Plaintiff[s] will submit evidence that Markell’s injuries and 

damages were proximately caused by a combination of birth trauma and 

hypoxia/ischemia to her brain. With the exclusion of the blood test from the 

purple/lavender tube, defense experts will still attempt to theorize that all of 

Markell’s injuries and damages were caused by a congenital defect. Assuming 

that these two competing scenarios are presented, the jury will hear testimony that 

Markell was unusually susceptible to birth trauma and hypoxia/ischemia from 

none other than Defendants’ own genetics expert Aubrey Milunsky, M.D. 

Plaintiffs summarized: 

Even Defendants do not and cannot deny that Markell came out bruised, battered 

and purple, with a fractured clavicle, which was not because of any congenital 

defect. M Civ JI 50.10 and M Civ JI 50.11 were drafted for cases where a jury is 

presented with two convening causes for a plaintiff’s injury. 
-68- 

 The trial court did not consider defendants’ new challenges to the proposed jury 

instructions until its September 7, 2011 pretrial hearing. In regard to the jury instructions 

regarding damages, the court agreed with defense counsel that those instructions would “need to 

[be] tweak[ed]” based on the “proofs that are ultimately submitted at trial.” Defense counsel 

then elaborated that the question to the jury, “Has the child sustained injury?” might need to be 

clarified “[b]ecause we’re dealing with someone who had a pre-existing congenital injury and 

defect” and counsel did not “want the jury to be confused about, Did she sustain an injury from 

this purported care and labor and delivery?” Mr. Fieger objected that the trial court had already 

ruled on proximate cause and the issue could not be revisited through revision of the jury 

instructions or verdict form. 

 The court wrapped up this argument at the pretrial hearing as follows: 

The Court. Jury Instructions. I’ve already ruled on that. 

Mr. Fieger. Yes. 

The Court. The Court’s ruled regarding jury instructions to be given and 

an order dated February [16], 2011, was entered. 

Mr. Fieger. Thank you. 

The Court. Any resubmitted requests and/or objections, for example . . . 

50.10, and 50.11 are denied. They were . . . untimely and/or waived. 

 As the trial’s end drew near, the court revisited the jury instruction issues. On October 

11, plaintiffs and defendants presented the court with the latest versions of their proposed 

instructions.29 The court stated, “I’m going to read them just and [sic] I think at that point if you 

want to lay an objection that you were opposed to but I, I sustain on I mean I think it would make 

a better record for everybody’s protection here, okay?” Plaintiffs’ counsel and the court 

addressed the order of the instructions. Both stated on the record that M Civ JI 50.10 and 50.11 

would be given. Defendants did not renew their objection to those two instructions at that time. 

 At the close of the trial, the court read M Civ JI 50.10 and 50.11 to the jury. Despite 

Judge Nichols’s October 11 suggestion that in the interest of “a better record” counsel should 

object to any jury instructions “that you were opposed to,” defense counsel raised no objection to 

M Civ JI 50.10 or 50.11. The court then asked the parties if they were “satisfied” with the 

instructions as given and defense counsel answered in the affirmative. 

B. ANALYSIS 

 MCR 2.512(C) instructs: “A party may assign as error the giving of or the failure to give 

an instruction only if the party objects on the record before the jury retires to consider the verdict 

 

29 We have not located those documents in the record. 
-69- 

. . . stating specifically the matter to which the party objects and the grounds for the objection.” 

Failure to object to a jury instruction constitutes a forfeiture of the right; nevertheless, a claim of 

instructional error may be reviewed on appeal for plain error. People v Carter, 462 Mich 206, 

215; 612 NW2d 144 (2000). However, a party is deemed to have waived a challenge to the jury 

instructions when the party has expressed satisfaction with, or denied having any objection to, 

the instructions as given. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002). A 

waiver extinguishes instructional error and precludes appellate review. Carter, 462 Mich at 215. 

 In contrast, we review preserved claims of instructional error de novo. Case v 

Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). When an objection to an 

instruction has been preserved, “we examine the jury instructions as a whole to determine 

whether there is error requiring reversal.” Id. We are guided by the precepts that 

[t]he instructions should include all the elements of the plaintiff’s claims and 

should not omit material issues, defenses, or theories if the evidence supports 

them. Instructions must not be extracted piecemeal to establish error. Even if 

somewhat imperfect, instructions do not create error requiring reversal if, on 

balance, the theories of the parties and the applicable law are adequately and 

fairly presented to the jury. [Id.] 

Defendants failed to abide by the trial court’s scheduling order and have given us no 

reason to find that the trial court abused its discretion by refusing to hear their tardy objections.30 

We reject defendants’ argument that the instructions became objectionable only after 

PreventionGenetics reported the genetic-testing results in January 2011. In advance of that date, 

the parties were aware of the possibility that plaintiffs would pursue a claim that both conditions 

contributed to Markell’s infirmities. At his December 2010 deposition, Dr. Milunsky opined that 

Markell likely suffered from PCH-2. He further testified: 

 Q. Does the genetic condition shield against or protect against 

hypoxia or traumatic injury? 

 A. No. It may be quite the opposite. It may make them more 

vulnerable. 

 Q. And why is that? 

 A. Well, in a general sense, and I think it’s more empirical than 

evidentiary, that the genetic disorders generally, whatever they may be, and with 

special reference to brain, make an individual more susceptible to the stressors, 

 

30 However, “[t]rial courts have the discretion to entertain additional requests for jury 

instructions and, in fact, customarily do so . . . .” Johnson v Corbet, 423 Mich 304, 315; 377 

NW2d 713 (1985). That a court has the discretion to consider late-filed instruction requests, 

does not require such action. 
-70- 

for example, of labor and delivery or in other instances to the vagaries of 

infection. 

Given this testimony, by January 2011, defendants knew every fact necessary to challenge giving 

M Civ JI 50.10 and M Civ JI 5.11. No new information emerged between December 2010 and 

June 2011, when defendants first brought their objections to these two jury instructions to the 

court’s attention. Judge Nichols did not abuse his discretion by refusing to hear argument at that 

late date. See Kemerko Clawson, LLC v RXIV Inc, 269 Mich App 347, 352; 711 NW2d 801 

(2005). Furthermore, defendants then failed to place an objection on the record when 

specifically invited to do so. We treat their objection as unpreserved and forfeited rather than 

waived. 

 M Civ JI 50.10 instructs on “a basic tort rule of law—a tortfeasor takes his victim as he 

finds him.” Richman v Berkley, 84 Mich App 258, 261; 269 NW2d 555 (1978). This instruction 

embodies this “eggshell skull” doctrine, a venerable tort principle: 

All first-year law students are taught that a tortfeasor “takes his victim as he finds 

him,” and are given the example of “the man with the eggshell skull.” The 

principle is that if you hit a person on the head and a cracked skull results, you are 

responsible for the consequences, even if the skull was weak to begin with and 

you gave only a slight blow as a joke. [Pierce v Gen Motors Corp, 443 Mich 137, 

155-156; 504 NW2d 648 (1993) (citation omitted).] 

 Both M Civ JI 50.10 and M Civ JI 50.10 relate to damages. Beadle v Allis, 165 Mich 

App 516, 525; 418 NW2d 906 (1987). A jury considers damages only after deciding the 

questions of negligence and proximate cause. M Civ JI 50.10 informs jurors that even if a 

plaintiff was unusually susceptible to injury, the defendant nonetheless may be held liable for 

damages proximately caused by defendant’s negligence. The instruction does not permit a jury 

to assess “eggshell skull”-related damages until the jury has concluded that a defendant’s 

negligent action or inaction proximately caused injury to the plaintiff. 

 Dr. Milunksy’s deposition testimony created a potential fact question regarding whether 

Markell’s PCH rendered her susceptible to birth trauma. Accordingly, plaintiffs established an 

evidentiary basis for requesting M Civ JI 50.10. And at the trial, Dr. Soffer expressed, “no 

matter what the condition of this baby was genetically the circumstances of events that happened 

during this labor made whatever condition this baby may have had at birth far, far worse than it 

would have been otherwise.” “The determination whether an instruction is accurate and 

applicable” based on the characteristics of a case lies within the sound discretion of the trial 

court. Stevens v Veenstra, 226 Mich App 441, 443; 573 NW2d 341 (1997). Dr. Soffer’s 

testimony established a factual foundation for plaintiffs’ argument that if the jury determined that 

birth trauma proximately caused Markell’s injuries and damages, she could recover even if PCH 

rendered her more susceptible to the effects of the trauma. We find no error, plain or otherwise. 

 M Civ JI 50.11 instructs a jury that it must apportion damages when both a preexisting 

condition and the defendant’s negligence have proximately caused an injury. Only if the jury 

determines that it is “unable to separate the damages caused by defendant’s conduct from those 

which were preexisting” may the “entire amount of plaintiff’s damages be assessed against the 
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defendant.” M Civ JI 50.11. Thus, this instruction informs the jury that it must strive to hold a 

defendant liable only for those damages attributable to the defendant’s conduct. If it is simply 

impossible to separate the damages caused by a preexisting condition from the damages 

proximately caused by a defendant’s negligence, a jury is permitted to impose liability for all 

damages on the defendant. In that circumstance, the law treats an injury as indivisible, even 

though two different proximate causes produced it. 

 Here, the parties’ proximate cause arguments were poles apart. Plaintiffs maintained that 

defendants’ obstetrical negligence standing alone proximately caused injury to Markell’s brain; 

defendants charged that only PCH proximately caused Markell’s neurologic disabilities. None 

of the causation experts expressed that the damages flowing from the two causes could be 

considered indivisible. Accordingly, the evidence did not support Judge Nichols’s decision to 

read M Civ JI 50.11 to the jury. However, reversal is not required unless the failure to order a 

new trial would be inconsistent with substantial justice, MCR 2.613(A), and is not warranted if 

an instructional error did not affect the trial’s outcome. Jimkoski v Shupe, 282 Mich App 1, 9; 

763 NW2d 1 (2008). After reviewing the jury instructions in their entirety, we conclude that the 

trial court fairly presented the applicable law. A single incorrect instruction, mentioned only 

once and briefly during plaintiffs’ closing argument, did not affect the outcome of this trial. 

Even were we to hold that the error in giving this instruction qualified as plain, it was harmless. 

XIII. DAMAGES CHALLENGES 

 Defendants attack the jury’s damage award on four fronts. First, defendants assert that 

plaintiffs presented only “incompetent” testimony concerning Markell’s life expectancy, thereby 

invalidating the life expectancy data underlying the testimony of plaintiffs’ economists and 

necessitating remittitur. Next, defendants urge that the lower cap on medical malpractice 

damages applies here, rather than the higher cap. Third, defendants contend that plaintiffs’ 

expert economists incorrectly calculated future damages using a compound interest method. 

Fourth, defendants quarrel with the manner in which the trial court reduced the jury’s award of 

future damages to present cash value. 

A. LIFE EXPECTANCY EVIDENCE 

 Defendants filed a pretrial challenge to the anticipated life expectancy testimony of 

plaintiffs’ experts, arguing that no scientific basis supported that Markell would live for more 

than an additional five years. At their depositions, Drs. Gabriel, Crawford, and Frank opined that 

Markell’s life expectancy was “50 plus,” “[m]aybe another . . . forty to fifty years,” and “near 

normal,” respectively. Defendants’ motion to strike this life expectancy testimony averred that 

according to the published medical literature, children with cerebral palsy such as Markell have a 

life expectancy of less than 20 years. 

 Plaintiff countered by filing two peer-reviewed medical articles with the trial court. The 

articles reviewed study data reflecting that children with cerebral palsy who maintain an ability 

to roll and are not tube-fed have longer rates of survival than more neurologically devastated 

children. The articles further highlighted that access to acute medical care generally enhances 

survival. The trial court issued an order denying defendants’ motion. 
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 During the trial, Dr. Gabriel testified to his experience in treating children with cerebral 

palsy and maintained that Markell would have a “fairly lengthy life expectancy although not 

normal.” Dr. Crawford testified that Markell had the opportunity to live for a “relatively normal 

life expectancy,” explaining: 

[S]he gets really good care and she’s not currently having seizures but she’s on 

seizure medicine to prevent seizures. She doesn’t have frequent hospitalizations. 

She’s never gone back into status epilepticus. She doesn’t have frequent 

aspiration pneumonia. She’s extremely well cared for. 

Dr. Gary Yarkony, a specialist in physical medicine and rehabilitation, examined Markell and 

opined that “if she’s cared for, she should have a normal life expectancy.” Dr Yarkony expanded 

as follows: 

 I have been treating disabled people for 30 years, and I treated people 

regularly in their fifties, sixties, seventies. I must say only two in their eighties 

with cerebral palsy and brain injury, and it really -- if they don’t have some 

degenerative disease where they don’t have some medical disease, as long as 

they’re cared for properly, they can have a long life expectancy. And particularly 

someone like Markell who’s mobile, who’s fed by mouth, who hasn’t had any 

major complications. She’s already 16 years old. She looks exactly the way I 

saw her two years ago. There’s nothing in her medical records about any 

neurological deterioration by any of her doctors. It’s just a matter of providing 

her with nursing care, and with nursing care she could have a normal life 

expectancy. 

 Defendants’ experts testified that Markell’s life expectancy was markedly shortened due 

to her PCH-2. They premised their testimony on the two articles describing children with the 

genetic disorder. According to the articles, (one involving 16 subjects and the other 169), life 

expectancy of PCH patients is “difficult to predict,” with one reported patient alive at age 31. 

 The jury verdict included future damages until Markell reaches age 82. 

 Defendants sought remittitur, arguing as they do here, that the expert testimony 

underlying the verdict did not qualify as scientifically reliable. The trial court denied 

defendants’ motion, reasoning: 

Both Plaintiff[s] and Defendants’ experts testified regarding life expectancy and 

the jury believed whom they wanted. Contrary to Defendants’ arguments, there 

was sufficient testimonial evidence regarding Plaintiff[s’] future damages which 

the jury was free to believe or disbelieve. To conclude that Plaintiff’s life 

expectancy was only five years post-trial date is like asking the Court to find in 

favor of Defendants on their defense that Plaintiff suffers from PCH and no harm 

occurred at birth. Plaintiffs’ expert testimony regarding future medicals was, for 

the most part, uncontested in an all or nothing approach by the defense. 
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B. ANALYSIS 

 We review a trial court’s remittitur decision for an abuse of discretion, bearing in mind: 

 An appellate court reviewing a trial court’s grant or denial of remittitur 

must afford due deference to the trial judge since the latter has presided over the 

whole trial, has personally observed the evidence and witnesses, and has had the 

unique opportunity to evaluate the jury's reaction to the witnesses and proofs. 

Accordingly, the trial judge, having experienced the drama of the trial, is in the 

best position to determine whether the jury’s verdict was motivated by such 

impermissible considerations as passion, bias, or anger. Deference to the trial 

judge simply reflects the recognition that the trial judge has observed live 

testimony while the appellate court merely reviews a printed record. [Palenka v 

Beaumont Hosp, 432 Mich 527, 534; 443 NW2d 354 (1989).] 

 We find no abuse of discretion. The evidence supplied by plaintiffs’ expert witnesses, 

primarily Dr. Yarkony, supported that Markell would likely have a near-normal life expectancy. 

Dr. Yarkony in particular relied on objective criteria—Markell’s health history and her current 

medical condition—in rendering his opinion. Viewing the evidence in the light most favorable 

to plaintiffs, as we must, we cannot jury’s life expectance determination as excessive. See 

Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 462; 750 NW2d 615 (2008). 

B. THE CORRECT CAP 

 Defendants cursorily argue that “[i]f Plaintiff Minor had already sustained spastic 

quadriplegia and mental retardation before her birth due to her preexisting condition, then the 

predicate for applying the higher cap amount is destroyed, and the noneconomic damages should 

be remitted to the lower cap amount for 2011. . . .” This argument lacks merit, as the jury’s 

verdict unequivocally reflects that it rejected defendants’ PCH-2 causation theory. 

C. INTEREST CALCULATION 

 Next, defendants assert that plaintiffs’ expert in vocational economic assessment, Dr. 

Anthony Gamboa, Jr., incorrectly employed a compound method to calculate future damages, 

which the trial court reduced using only a simple interest methodology. According to 

defendants, these calculations resulted in an arbitrary $2,170,969.43 “windfall” for plaintiffs. 

This challenge comes too late. Defendants’ raised no objection to Gamboa’s methodology 

during the trial. Defense counsel extensively cross-examined Dr. Gamboa regarding his 

methods, and defendants offered no expert testimony refuting the validity of Gamboa’s 

calculations. We find no legal error. 

D. REDUCTION TO PRESENT VALUE 

 Defendants’ final argument concerning damages centers on our Supreme Court’s holding 

in Nation v WDE Electric Co, 454 Mich 489; 563 NW2d 233 (1997). According to defendants, 

Nation was incorrectly decided. We are bound by Nation. Accordingly, we hold that the trial 

court did not err by reducing plaintiffs’ future damages to present value using the simple interest 

method. 
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IX. THE STATUTE OF LIMITATIONS 

 Lastly, defendants allege that plaintiffs’ lawsuit is untimely because it was not filed by 

Markell’s 10th birthday. The law of the case doctrine controls our resolution of this question. 

Under the law of the case doctrine, “if an appellate court has passed on a legal 

question and remanded the case for further proceedings, the legal questions thus 

determined by the appellate court will not be differently determined on a 

subsequent appeal in the same case where the facts remain materially the same.” 

The appellate court’s decision likewise binds lower tribunals because the tribunal 

may not take action on remand that is inconsistent with the judgment of the 

appellate court. Thus, as a general rule, an appellate court’s determination of an 

issue in a case binds lower tribunals on remand and the appellate court in 

subsequent appeals. [Grievance Administrator v Lopatin, 462 Mich 235, 259-

260; 612 NW2d 120 (2000) (citations omitted).] 

“The rationale supporting the doctrine is the need for finality of judgment and the want of 

jurisdiction in an appellate court to modify its own judgments except on rehearing.” Webb v 

Smith (After Second Remand), 224 Mich App 203, 209-210; 568 NW2d 378 (1997). 

 In a prior appeal in this case, this Court held that the 10th-birthday provision of MCL 

600.5851(7) is a limitations period, not a saving provision. VanSlembrouck, 277 Mich App at 

569. As such, this Court held that plaintiffs’ November 2005 notice of intent tolled the statute of 

limitations. Id. at 570. While the Supreme Court initially granted leave to consider this issue, 

VanSlembrouck, 481 Mich 918, it later vacated its order and declined to consider it. 

VanSlembrouck, 483 Mich at 965. As this Court’s prior opinion “is unaffected by a higher 

court’s opinion,” McNees v Cedar Springs Stamping Co, 219 Mich App 217, 222; 555 NW2d 

481 (1996), it is the law of the case. Accordingly, we decline to further consider this issue. 

 We affirm. 

/s/ Elizabeth L. Gleicher 

/s/ Stephen L. Borrello 

/s/ Deborah A. Servitto