Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathawa y A lton Thomas Davis,

J ustices 

# Order

December 22, 2010

139860

RAQUEL ROBELIN, Conservator, for TEIJA McCALL, Plaintiff-Appellee,

v SC: 139860 COA: 279780 Kent CC: 04-010444-NH SPECTRUM HEALTH HOSPITALS, d/b/a SPECTRUM HEALTH-EAST CAMPUS, JOHN HARTMANN, M.D., and ADVANTAGE HEALTH PHYSICIANS, P.C., Defendants-Appellants.

________________ _______________ __________/

On November 4, 2010, the Court heard or al argument on the application for leave to appeal the September 10, 2009 judgment of the Court of Appeals. On order of the Court, the application is agai n considered, and it is DENIED, there being no majority in favor of granting leave to a ppeal or taking other action.

K ELLY , C.J. ( concurring ).

I concur with the order denying leave to appeal I do not believe that the lower courts misapplied the legal standards govern ing the admissibility of expert testimony or that allowing the testimony of plai ntiff’s expert was improper.

FACTS AND PROCEEDINGS

Plaintiff’s daughter, McCall, was born at defendant Spectrum Hospital in 2001. Shortly after her birth, she suffered a neonatal stroke. As a result, she is unable to walk without assistance and has had significant develo pmental delays in language and speech.

Plaintiff filed this medical malpractic e action in 2004, alleging that McCall suffered hypoxia, which caused the stroke, which in turn caused neurol ogical disabilities. The parties dispute when the stroke occurre d and whether the hea lth care professionals

missed indicators of it.2

In 2008, defendants moved to strike the testimony of Dr. Ronald Gabriel, plaintiff’s causation expert. The trial court held a Daubert 1 hearing on the issue but ultimately denied the motion. The Court of Appeals denied interlocutory leave to appeal and denied defendants’ motion for a peremptory reversal. Defendants appealed here, and we remanded the case to the Court of App eals for consideration as on leave granted. 2

In 2009, on remand, the Court of Appeal s affirmed the trial court’s ruling denying defendants’ motion to exclude Dr. Gabriel’s testimony. 3 The panel ruled that the trial court had been correct in concluding that Dr. Gabriel simply us ed the process of elimination, a time-honored and well-te sted means of reaching a conclusion.

In 2010, defendants again sought leave to appeal in this Court. We heard oral argument on the application. 4

ANALYSIS

MCL 600.2955(1) and MRE 702 require that an expert’s opinion be “reliable,” “assist the trier of fact,” and be “the pr oduct of reliable principles and methods.” 5 The Court of Appeals has held that, as long as the basic methodology and principles utilized by an expert are “sound and create a trustw orthy foundation for the conclusion reached, the expert testimony is admissible no matter how novel.” 6

In this case, the trial court did not us e the magic word “reliable” or the phrase “will assist the trier of fact.” However, the trial court conducted a lengthy two-day

Daubert hearing to evaluate Dr. Gabriel’s propos ed testimony. The court concluded that the testimony has “a foundation in fact and in sc ience, and is based, at least in reasonable degree, upon demonstrable data.”

In that ruling, the court discussed its “gatekeeping function” under Daubert and

addressed each of the factors in MCL 600.2955(1). It certainl y does not appear to me, as

1 Daubert v Merrell Dow Pharmaceuticals Inc , 509 US 579; 113 S Ct 2786 (1993).

2 Robelin v Spectrum Health Hospitals , 482 Mich 985 (2008).

3 Robelin v Spectrum Health Hospitals , unpublished opinion per curiam of the Court of Appeals, issued September 10, 2009 (Docket No. 279780).

4 Robelin v Spectrum Health Hospitals , 486 Mich 851 (2010).

5 MCL 600.2955(1); MRE 702.

6 Nelson v American St erilizer Co (On Remand) , 223 Mich App 485, 492 (1997), citing

Daubert , 509 US at 596.3

it does to the dissenters, that the trial court’ s ruling involved an “oversight” as to what was required of it.

The dissenters also criticize the trial cour t’s application to Dr. Gabriel’s testimony of the factors set forth in MCL 600.2955(1 )(a), (b), (e), and (g). Contrary to the dissenters, I believe that the trial court did conclude that Dr. Gabriel’s theory had been subject to testing under MCL 600.2955(1 )(a). The court noted that it would be impracticable to do prospective studies of th is sort, so “replication” was impossible. However, it pointed to retrospective studies an alyzing data that “does seem to indicate some causal nexus between hypox ia in the prenatal state and a neonatal stroke.”

Regarding factor (b), the court explicitly found that journal ar ticles in the record seemingly demonstrated the causal nexus that Dr. Gabriel asserted and had been subject to peer review. Hence, his opinion on causa tion and its basis have been subject to peer review. It appears that th e dissent reads MCL 600.2955(1 )(b) as requiring that a peerreviewed article mention Dr. Gabriel by name and attribute the opini on specifically to him. This is an overly rest rictive view of factor (b). The only requirement in MCL 600.2955(1)(b) is that the expert opinion and its basis have been subjected to peer review.

Regarding factor (g), the trial court specifi cally found that “the articles referenced certainly are outside the context of litigation. ” Simply because Dr. Gabriel’s opinion is retrospective in nature does not preclude it or his methodology fro m being used outside the context of litigation.

Regarding factor (e), I agree with the di ssent that the trial court should have considered a “relevant expert community” expanding beyond plaintiff’s and defendants’ experts. This factor directs trial courts to consider whether an opinion and its basis are generally accepted by “individuals who are k nowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.” Thus, the trial court should have considered the broader expert community when evaluating this factor.

Nonetheless, because the trial court othe rwise fulfilled its gatekeeper function, I do not believe that its misapplic ation of one of many evaluativ e criteria warrants reversal. Moreover, the trial court also applied the three other factors from MCL 600.2955(1), and the dissent does not take issue with its application of those factors.

The dissenters similarly err in their criti cisms of the Court of Appeals decision. Their criticisms are premised on its conclusion that Dr. Gabriel’s retrospective use of the process of elimination is fl awed because there are no k nown predictors of neonatal strokes. Therefore, supposedly, defendants could not have acted pr ospectively to prevent McCall’s stroke. However, Dr. Gabriel’s prop osed testimony was that evidence arising

before and after McCall’s birth demonstr ated that she expe rienced hypoxia and a decreased heart output, leading to a blood clot and stroke. The medical literature in the4

record establishes that perinatal asphyxia is considered the most common cause of neonatal stroke. If the treating physicians could have discerned that McCall suffered hypoxia, it was foreseeable that she c ould suffer a neonatal stroke. Thus, Chapin v A & L

Parts Inc

, 7 is not distinguishable and Dr. Gabr iel’s testimony was properly admitted.

Moreover, the dissenters assert that Dr. Gabriel’s process of elimination methodology fails to establish that whatever remains is a proximate cause of the alleged injury. They are mi staken. It is certainly true that “correlation does not equal

causation.” 8 However, this argument ha s nothing to do with the reliability of Dr. Gabriel’s opinion. Instead, what the dissenters se em to be arguing is that plaintiff’s claim

must fail as a matter of law for failure to sh ow proximate cause. As we are not reviewing a motion for summary disposition, this argumen t is outside the scope of this Court’s

review. CONCLUSION The trial court adequately perform ed its gatekeeper function under Daubert , MCL 600.2955, and MRE 702. Theref ore, it did not “shirk[] its responsibility,” as the dissent contends, nor was its decision to admit Dr. Ga briel’s testimony an abuse of discretion. Thus, I concur in the order denying defe ndants’ application fo r leave to appeal.

C AVANAGH and H ATHAWAY , JJ., would affirm the judgment of the Court of Appeals.

C ORRIGAN , J. ( dissenting ).

I would reverse the judgment of the Cour t of Appeals and remand for entry of an order granting defendants’ motion to stri ke the testimony of pl aintiff’s proffered causation expert. By denying leave to app eal today, the Court fails to correct the misapplication of the legal stan dards that govern the admissibility of expert testimony. Accordingly, I respectfully dissent.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May 2001, plaintiff’s daughter Teija McCall suffered a neonatal stroke, which resulted in the now nine-year-o ld child experiencing severe developmental disabilities. On October 25, 2004, plaintiff filed this me dical malpractice action, alleging that the stroke could have been prev ented if defendants timely diagnosed and treated the fetal distress and immediately delivered McCall via caesarian section, rather than permitting plaintiff’s vaginal delivery to proceed. Defendants disputed the timing and the cause of

the stroke. Defendants also moved to stri ke the testimony of plaintiff’s proffered

7 274 Mich App 122 (2007).

8 Post at ___.5

causation expert, Dr. Ronald Gabriel, argui ng that Dr. Gabriel’s proposed testimony did

not meet the criteria set fort h in MCL 600.2955 and MRE 702.

After conducting a two-day Daubert 9 hearing, the trial court issued an opinion

from the bench. The court denied defendan ts’ motion to strike, opining that it would admit Dr. Gabriel’s testimony and “let the ch ips fall where they may.” On remand from this Court, the Court of Appeals affirmed the trial court’s decision. 10 The Court of Appeals concluded that the trial court di d not abuse its discretion in admitting Dr. Gabriel’s testimony, stating in part:

The trial court correctly conclude d that Dr. Gabriel simply used process of elimination, a sufficiently tested and time-honored way to arrive

at an answer that it is even th e quintessential Sherlock Holmes methodology. Stated in various ways in various books, once all impossibilities are filtered out, whatev er remains, irrespective of its improbability, must be the truth. 10

___________________ _____________________ ____________________

10 In The Hound of th e Baskervilles, chapter 4, Sherlock Holmes observed that “we balance probabilities and choose th e most likely. It is the scientific use of the imagination, bu t we have always some ma terial basis on which to start our speculation.”

___________________ _____________________ ____________________

Defendants applied for leave to appeal in th is Court. We heard oral argument on the application.

II. ANALYSIS

An abuse of discretion occurs when the trial court’s decision to admit or exclude evidence, including expert testimony, falls outside the range of principled outcomes. 11
When a court admits legally inadmissible evidence, it nece ssarily abuses its discretion. 12

In this case, the trial court abused its discre tion when the court denied defendants’ motion

9 Daubert v Merrell Dow Pharmaceuticals Inc , 509 US 579 (1993).

10 Robelin v Spectrum Health Hospitals , unpublished opinion per curiam of the Court of Appeals, issued September 10, 2009 (Docket No. 279780).

11 Woodard v Custer , 476 Mich 545, 557 (2006).

12 Craig v Oakwood Hosp , 471 Mich 67, 76 (2004).6

to strike the testimony of pl aintiff’s proffered causation expert because Dr. Gabriel’s testimony fails to satisfy the ex acting criteria of MCL 600.2955 13 and MRE 702. 14

13 MCL 600.2955 provides in pertinent part:

(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 qu alified expert is not admissible unless the court determines that the opini on is reliable and will assist th e trier of fact. In making that determination, the court sha ll examine the opini on and the basis for the opinion, which basis includes the facts, technique, methodol ogy, and reasoning re lied 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 ge nerally 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 pote ntial error rate of the opinion and its basis.

(e) The degree to which the opinion and its basis are gene rally accepted within the relevant expert community. As used in this subdivision, “relev ant 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 whet her 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.

14 MRE 702 provides:

If the court determines that scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to determin e a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and7

The trial court erred when it failed to expressly determine that Dr. Gabriel’s proposed testimony is reliable and that his cau sation opinion would assist the fact-finder. MCL 600.2955(1) states that “[i]n an action fo r the death of a person or for injury to a person or property, a scientific opinion rendered by an othe rwise qualified expert is not

admissible unless the court determines that the opinion is reliable and will assist the trier of fact .” The language of MRE 702 underscores the im portance of admitting reliable expert testimony that will assist the fact-find er. MRE 702 provides in pertinent part:

If the court determines that scientif ic, 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 . . . 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 applie d the principles and methods reliably to the facts of the case

.

Both the statute and the eviden tiary rule emphasize the court’ s obligation to ensure that any expert testimony is relia ble and will assist the fact-finder. However, the record

reflects that the trial court di d not make either determinati on. The record also reflects

that the trial court failed to reference MRE 70 2 or determine that D r. Gabriel’s testimony: “(1) . . . is based on sufficient facts or data, (2) . . . is the product of reliable principles and methods, and (3) the witness has applied the prin ciples and methods reliably to the facts of the case.” Contrary to Chief Justic e Kelly’s view, the abse nce of these critical

determinations on the record before us should not be minimi zed as a failure to “use the magic word” or sidestepped by characterizing the two-day Daubert hearing as “lengthy.” 15 Rather, these apparent oversights dem onstrate an inadequate exercise of the court’s gatekeeping role and bolster the conclusion that the trial court abused its

discretion when it denied defendants’ mo tion to strike Dr. Gabriel’s testimony. 16

Although the trial court addressed the cr iteria set forth in MC L 600.2955(1)(a)-(g), the court erred when it failed to apply each criterion with diligence or precision. For

methods, and (3) the witness has applied the pr inciples and methods reliably to the facts

of the case.

15 Ante at __.

16 See Gilbert v DaimlerChrysler Corp , 470 Mich 749, 780 (2004), quoting Kumho Tire

Co Ltd v Carmichael , 526 US 137, 158-159 (1999) (Scalia, J., concurring) (“While the exercise of this gatekeeper ro le is within a court’s discre tion, a trial judge may neither ‘abandon’ this obligation nor ‘pe rform the function inadequately.’”).8

example, the trial court ackno wledged that Dr. Gabriel’s opi nion had not been “subjected to scientific testing and rep lication,” contrary to § 2955(1 )(a). Yet the court concluded that plaintiff met this criterion, even though it expressly found that plaintiff did not, and could not, satisfy § 2955(1)(a). The trial cour t also determined that plaintiff satisfied § 2955(1)(b) without id entifying any publication that had subjected Dr. Gabriel’s opinion to peer review. In effect, the court invert ed § 2955(1)(b), which instructs it to consider “[w]hether the opinion and its basis have been subjected to peer review publication,” and not whether Dr. Gabriel can extrapolate any modicum of support for his opinion from the inconclusive medical literature published to date. Additionally, the court concluded that plaintiff satisfied § 2955(1)(e), which directs th e trial court to consider “[t]he degree to which the opinion and its ba sis are generally accepted within the relevant expert community.” This finding is puzzling because the court limited its discussion of the “relevant expert community,” which § 2955(1)(e) define s as “individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market,” to the two causation expert s who testified. Also puzzling is the trial court’s failure to identify any member of the relevant expert community besides Dr. Gabriel who “generally accepted” his opinion. 17 Further, the trial c ourt determined that plaintiff satisfied § 2955(1)(g ) although the admittedly re trospective nature of Dr. Gabriel’s opinion precludes it from being “relie d upon by experts outside of the context of litigation.” That is, Dr. Gabriel’s opinion has no practical value whatsoever for those interested in predicting and preventing neonatal strokes because it relies entirely on a retrospective analysis of case-specific factors in the context of litiga tion. The dearth of findings that actually satisfy the criteria of § 2955(1) expose s the trial court’s abuse of

discretion.

The Court of Appeals essentially glossed ov er the trial court’s flawed analysis and concluded that Dr. Gabriel’s testimony should reach a jury because Dr. Gabriel derived his opinion from the process of elimination or “the quintessentia l Sherlock Holmes methodology.” However, the Court of Ap peals offhand observ ation ignores the unambiguous language of the statute and the evidentiary rule. No provision in MCL

600.2955 or MRE 702 excuses the trial court from fulfilling its obligation as gatekeeper when an expert claims that the methodol ogy underlying his opinion derives from the process of elimination. And referring to “the quintessential Sherlock Holmes methodology” does not negate the fact that the trial court’s role as gatekeeper “applies to all stages of expert analysis.” 18 Indeed, the “[c]areful vetti ng of all aspects of expert

17 The other causation expert identified by the c ourt, Dr. Michael Johnston, testified that “[t]here’s no scientific eviden ce for what [Dr. Gabriel] says[, ]” and that “scientifically, what has been said, on paper and by deposition by Dr. Gabrie l, is completely wrong.”

18 Gilbert , 470 Mich at 782 (emphasis in original).9

testimony is especially important when an expert provides testimony about causation.” 19
The trial court was obligated to thoroughly vet Dr. Gabriel’ s testimony under the criteria

set forth in MCL 600.2955 and MRE 702. Quite simply, the court shirked its responsibility. The Court of Appeals clearly erred when it affirmed the trial court’s misapplication of the legal standards govern ing the admissibility of expert testimony.

The Court of Appeals also clearly erre d when it endorsed Dr. Gabriel’s opinion, which purports to establish causation based on his retrospective analysis of several factors. As the Court of Appeals acknowledg ed, “Dr. Gabriel did not rely on any of the medical evidence for its prospec tive, predictive value, but rath er as evidence upon which to retrospectively exclude impossible scenario s.” The notion that Dr. Gabriel can testify as a causation expert based on his retrospec tive use of the “process of elimination” is

flawed for three reasons.

First, it is undisputed that there are no known predictors of neonatal strokes. As the medical literature relied upon by Dr. Gabr iel establishes, because neonatal strokes occur unexpectedly and without any known indicia, ther e is no foreseeable basis from which defendants could have acted to pr ospectively prevent McCall’s stroke. 20
Critically, proximate causation requires foreseeability , yet Dr. Gabriel—plaintiff’s proffered causation expert—can not establish that McCall’s stroke could have been predicted and avoided.

Second, the mere act of eliminating se veral possibilities through the process of elimination does not necessarily establish that whatever remains is a proximate cause of the injury alleged. 21 It is axiomatic that corre lation does not equal causation.

19 Id

. 20 See e.g., Jeffery M. Perlman et al., Neonatal Stroke: Clinic al Characteristics and

Cerebral Blood Flow Velocity Measurements , Pediatric Neurology Vol. 11 No. 4, at 281 (1994) (“The data indicate that infant s who develop neonatal stroke cannot be distinguished from infants who do not develop the lesion by current markers of perinatal

distress. Because neonatal stroke frequently occurs as an unanticipated event, prevention may not be possible .”).

21 For the process of elimination to apply in th e first instance, there mu st be some discrete universe of possibilities that have been estab lished through the prerequisite scientific testing. Once the probabilities have been narrowed to some certain and definite number, it is logical to apply the process of elimination to establish proximate cause. In this case, it is undisputed that there are no known predictors of neonatal strokes. Because of the lack of any certain and definite number of pr edictors, indeed any known predictors at all, deductive reasoning through the process of elimination is si mply inapt. This does not mean that I question the value of deductive reasoning and th e process of elimination in general, only that it has been applied here in circumstances where it cannot logically produce the conclusion drawn.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk December 22, 2010

d1221 10

Nonetheless, Dr. Gabriel seeks to testify th at a correlating event was the causal event

because there are no other known causes . Even a cursory readin g of MCL 600.2955 and

MRE 702 establishes that the act of “ruling out” possibilitie s does not, and should not, automatically “rule in” the causation sought to be establis hed by plaintiff’s expert here.

Third, the lone case cited by the Court of Appeals to support its endorsement of Dr. Gabriel’s retrospective use of the process of elimination, Chapin v A & L Parts Inc

, 274 Mich App 122 (2007), is disti nguishable from this case. In Chapin , the lack of epidemiological studies establishing a link be tween the plaintiff’s occupational exposure

to brake dust and mesothelioma was not outc ome determinative because the link between mesothelioma and asbestos exposure was al ready established. As a result, deductive logic provided an appropriat e means of concluding that the plaintiff’s occupational exposure to asbestos caused his mesothelio ma. In this case, however, there is no established link between any known predictor and neonatal strokes, as Dr. Gabriel admitted by stating that “you ca nnot use fetal monitoring in a prospective or predictive manner because there is none.” At best, Dr. Gabriel’s opinion amounts to an exercise in retrospective speculation, rather than viable deductive logic. His opinion fails to satisfy the legal standards governing the admissibility of expert testimony, and the Court of Appeals clearly erred when it re ached a contrary conclusion.

III. CONCLUSION

Because the trial court failed to carefully consider the testim ony of plaintiff’s proffered causation expert under MCL 600.2955 and MRE 702, its decision to admit Dr. Gabriel’s testimony fell outside the range of pr incipled outcomes. The Court of Appeals clearly erred when it failed to correct th e trial court’s misapp lication of the legal standards that govern the admi ssibility of expert testimony. I would reverse the judgment of the Court of Appeals and remand for entr y of an order granting defendants’ motion to strike. Consequently, I dissent from the Court’s denial of leave to appeal.

Y OUNG and M ARKMAN , JJ., join the statement of C ORRIGAN , J.

D AVIS , J., not participating. I recuse myse lf and am not par ticipating because I was on the Court of Appeals panel in this case. See MCR 2.003(B).