Craig v. Oakwood Hospital

684 N.W.2d 296, 471 Mich. 67

• Court: Michigan Supreme Court
• Decided: July 23, 2004
• Docket: Docket Nos. 121405, 121407-121409, 121419. Calendar No. 5
• Status: Published

Opinions

Young, J.

Plaintiff, now an adult, suffers from cerebral palsy, mental retardation, and a number of other neurological and physical ailments. He argues, through his mother as next friend, that these conditions are the proximate results of defendants’ negligence in treating his mother during her labor leading to his delivery. Specifically, plaintiff maintains that defendants administered an excessive amount of a contraction-inducing medication to his mother and were unable to detect signs of fetal distress because they failed to make appropriate use of fetal monitoring devices. The trial court denied defendants’ request to hold a Davis-Frye hearing on expert testimony that purported to draw a causal connection between these breaches of the standard of care and plaintiffs present neurological and physiological condition.

Following a five week trial, the jury returned a verdict in plaintiffs favor. The trial court thereafter determined that defendant Henry Ford Health System was liable as a successor corporation to defendant Associated Physicians, EC. The trial court denied the defendants’ motions for judgment notwithstanding the verdict or for a new trial. The Court of Appeals affirmed the judgment of liability, but ordered remittitur on lost wage earning capacity.¹ We reverse and remand the matter for entry of judgment in defendants’ favor.

I. FACTS AND PROCEDURAL HISTORY

This appeal arises out of the events surrounding plaintiffs birth on July 16, 1980. Plaintiffs mother, Kimberly Craig, received prenatal care from defendant Associated Physicians, EC. Associated Physicians employed four obstetricians, including defendants Dr. Elias Gennaoui and Dr. Ajit Kittur.² Ms. Craig met with each obstetrician at some point before plaintiffs birth, but was primarily attended to by Dr. Gennaoui during plaintiffs delivery.

Ms. Craig’s amniotic and chorionic membranes ruptured at approximately 5:30 A.M. on July 16, 1980, and she was admitted to defendant Oakwood Hospital within a half hour. The resident doctor on call at the time noted that plaintiffs fetal heart tones were within a normal range. Dr. Kittur, who was the attending physician on staff when Ms. Craig was admitted, requested that Ms. Craig be given an intravenous (IV) “keep open” line to maintain hydration and to establish a channel for the intravenous administration of medication, should the need arise. Nurses applied an external fetal-uterine monitor to Ms. Craig at approximately 9:30 A.M., at which time she still had not experienced contractions. At 10:00, Ms. Craig began to receive 1000 cc of a 5% Ringer’s lactate solution through the “keep open” IV line.

Dr. Gennaoui, who had taken over for Dr. Kittur sometime after Ms. Craig was admitted, met with Ms. Craig at approximately 11:00 A.M. He was concerned that Ms. Craig and her child had been exposed to infection since her membranes burst earlier that morning,³ and concluded that Ms. Craig should be given ten units of Pitocin⁴ in order to induce labor.^{5 6}From 11:30 A.M. to 6:00 P.M., Ms. Craig was given doses of Pitocin in increasing amounts.

One of the central issues at trial was the precise amount of Pitocin administered to Ms. Craig and whether, as plaintiff argued, she had mistakenly received a double dosage. Plaintiffs standard of care expert, Paul Gatewood, M.D., testified that Ms. Craig’s medical records reveal that she was inadvertently given two doses of Pitocin. The first was administered shortly after 11:00 A.M. upon Dr. Gennaoui’s order. Nurse Quinlan wrote a check on Dr. Gennaoui’s order for Pitocin to indicate, according to Dr. Gatewood, that she had performed Dr. Gennaoui’s request and had administered Pitocin through the 5% Ringer’s lactate solution.

Dr. Gatewood noted, however, that another nurse, Tyra, had written in Ms. Craig’s records that she had administered Pitocin through a solution other than the 5% Ringer’s lactate Ms. Craig was already receiving intravenously. Thus, according to Dr. Gate-wood’s testimony, Dr. Gennaoui had given a single order for Pitocin that had been filled twice — once by Nurse Quinlan through the 5% Ringer’s lactate solution, and once by Nurse Tyra through the D5W solution.

Also contested at trial was whether Ms. Craig’s labor presented any complications. Medical records compiled after plaintiffs birth show that Ms. Craig began experiencing contractions of “moderate” strength after receiving Pitocin and that “moderate” contractions continued until plaintiffs delivery.

Plaintiff contends, however, that the records from a fetal uterine monitor tell a different story. These records, according to Dr. Gatewood, show that plaintiff experienced recurrent decelerations of his heart rate, or bradycardia, after Ms. Craig began to receive Pitocin. Dr. Gatewood explained at trial that the decelerations occurred because the Pitocin administered to Ms. Craig caused contractions of excessive intensity and duration. Plaintiffs umbilical cord became compressed because of these contractions, thereby decreasing the amount of blood flowing to plaintiff. The result was the pattern of decelerations in heart rate shown by the fetal uterine monitor and a decrease in the amount of oxygen flowing to plaintiffs brain, or “hypoxia” in medical parlance.

Plaintiff was born shortly before 7:00 P.M. that day. His Apgar scores, 8 and 9 (on a one to ten scale), were well within the typical range,⁷ indicating that plaintiff appeared to be a normal, healthy baby. Plaintiff also contests this Apgar assessment, maintaining that a picture of plaintiff taken shortly after his birth depicts an infant who had recently suffered head trauma. Specifically, plaintiff points to a “large ridge” across his forehead as evidence of “facial or brow molding,” and argues that the photograph clearly reveals bruising and edema,⁸ both sure signs of trauma. In addition, plaintiff contends that the postdelivery picture shows him “gazing” to the right while holding his left hand in a cortical position and that these “are indicative of acute brain injury.”

Two days after his birth, plaintiff was examined by pediatrician Dr. Carolyn Johnson, who concluded that plaintiff seemed to be healthy and displayed normal cognitive functions. Plaintiff received a vastly different diagnosis approximately one year later. On June 6, 1981, Ms. Craig had plaintiff examined by Dr. Michael Nigro, a pediatric neurologist, after noticing that plaintiff began to seem developmentally slow after his third month. Dr. Nigro diagnosed plaintiff with nonprogressive encephalopathy⁹ with global developmental delay and mild spasticity. He concluded at the time and maintained throughout this trial that the etiology or cause of plaintiffs condition was unclear.¹⁰

Plaintiff initiated the present lawsuit in 1994 through his mother, Kimberly Craig, as next friend. He alleged that Drs. Gennaoui and Kittur committed medical malpractice in failing to monitor plaintiffs heartbeat with an internal uterine catheter until 2:30 P.M. on July 16, 1980. Further, he alleged that Dr. Gennaoui and his colleagues negligently administered Pitocin to Ms. Craig despite the fact that she presented physical symptoms indicating that Pitocin was unnecessary and potentially harmful. As a result, plaintiff alleged, plaintiff sustained brain damage either through hypoxia or through the pounding of plaintiffs head against his mother’s “pelvic rim” before birth.

Plaintiff also named Associated Physicians, PC., the employer of Drs. Kittur and Gennaoui, under a theory of vicarious liability. In addition, plaintiff named Oakwood Hospital, where plaintiff was delivered, and named Henry Ford Hospital under a successor liability theory.¹¹

On January 21, 1997, defendant asked the Court to exclude the testimony of Dr. Ronald Gabriel, plaintiffs proposed causation expert, or, in the alternative, to conduct a.Davis-Frye hearing.¹² This motion was denied.

Henry Ford filed a successful motion to sever. However, the trial court found after conducting a bench trial that Henry Ford was liable to plaintiff as a successor to Associated Physicians, PC.

After the jury found in plaintiffs favor, the court entered judgment of $21 million, reflecting the present value of the $36 million awarded by the jury. The trial court denied defendants’ motion for judgment notwithstanding the verdict or a new trial.

On February 1, 2002, the Court of Appeals affirmed the jury verdict in plaintiffs favor, but ordered remittitur because of the jury’s overestimation of plaintiffs lost wage earning capacity.¹³ The panel also affirmed the trial court’s conclusion that Henry Ford was liable to plaintiff as a successor corporation.

We granted defendants’ applications for leave to appeal on September 12, 2003, limiting the parties to the following issues: “(1) Whether the witnesses’ testimony was based on facts not in evidence and whether the trial court erred in permitting the testimony of plaintiffs expert witnesses; (2) Whether the trial court erred in finding defendant Henry Ford Hospital liable on a successor liability theory.”¹⁴ We denied plaintiffs application for leave to appeal the decision of the Court of Appeals.

II. STANDARD OF REVIEW

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.¹⁵ A court necessarily abuses its discretion when it “admits evidence that is inadmissible as a matter of law.”¹⁶ However, any error in the admission or exclusion of evidence will not warrant appellate relief “unless refusal to take this action appears .. . inconsistent with substantial justice,”¹⁷ or affects “a substantial right of the [opposing] party.”¹⁸

We review de novo a trial court’s decision to grant or deny a motion for judgment notwithstanding the verdict.¹⁹ In conducting this review de novo, we “ ‘review the evidence and all legitimate inferences in the light most favorable to the nonmoving party.’ ”²⁰ Only when “the evidence viewed in this light fails to establish a claim as a matter of law” is the moving party entitled to judgment notwithstanding the verdict (JNOV).²¹

The doctrine of successor liability is “ ‘derived from equitable principles.’ ”²² Its application is therefore subject to review de novo.²³

III. IMPROPER ADMISSION OF EXPERT TESTIMONY

We turn, first, to the trial court’s erroneous conclusion that defendant Oakwood Hospital was not entitled to a Davis-Frye hearing before the admission of Dr. Ronald Gabriel’s expert testimony. Defendant contends that the trial court erred when it denied its motion to exclude the expert opinion testimony of Dr. Gabriel or, in the alternative, to hold a Davis-Frye hearing. We agree.

A. MRE 702 AND DAVIS-FRYE ANALYSIS

Expert testimony is admitted pursuant to MRE 702, which provided, at the pertinent times:

If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise ....

In construing this rule of evidence, we must apply “ ‘the legal principles that govern the construction and application of statutes.’ ”²⁴ When the language of an evidentiary rule is unambiguous, we apply the plain meaning of the text “ ‘without further judicial construction or interpretation.’ ”²⁵

The plain language of MRE 702 establishes three broad preconditions to the admission of expert testimony.²⁶ First, the proposed expert witness must be “qualified” to render the proposed testimony.²⁷ Generally, the expert may be qualified by virtue of “knowledge, skill, experience, training, or education.”²⁸ In a medical malpractice action such as this one, the court’s assessment of an expert’s “qualifications” are now guided by MCL 600.2169(2):

In determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following:

(a) The educational and professional training of the expert witness.

(b) The area of specialization of the expert witness.

(c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty.

(d) The relevancy of the expert witness’s testimony.

Second, the proposed testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue . .. ,”²⁹ In other words, the expert opinion testimony “must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue.”³⁰

Finally, under MRE 702 as it read when this matter was tried, expert testimony must have been based on a “recognized” form of “scientific, technical, or other specialized knowledge.”³¹ The Court of Appeals properly construed this language in Nelson v American Sterilizer Co (On Remand):

The word “recognized” connotes a general acknowledgement of the existence, validity, authority, or genuineness of a fact, claim or concept. The adjective “scientific” connotes a grounding in the principles, procedures, and methods of science. Finally, the word “knowledge” connotes more than subjective belief or unsupported speculation. The word applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.[³²]

Continuing along these lines, the word “technical” signifies grounding in a specialized field of knowledge, or a particular “art, science, or the like.”³³ Similarly, “specialized” suggests a foundation in a specific field of study or expertise.³⁴

When this case was tried, the admission of expert testimony was subject not only to the threshold requirements of MRE 702, but also to the standard articulated in People v Davis,³⁵now generally known in Michigan as the Davis-Frye test.³⁶ In Davis, we held that expert opinion based on novel scientific techniques is admissible only if the underlying methodology is generally accepted within the scientific community.³⁷ Thus, in determining whether the proposed expert opinion was grounded in a “recognized” field of scientific, technical, or other specialized knowledge as was required by MRE 702, a trial court was obligated to ensure that the expert opinion was based on accurate and generally accepted methodologies.³⁸ The proponent of expert testimony bears the burden of proving general acceptance under this standard.³⁹

B. THE TRIAL COURT’S FAILURE TO PERFORM ITS GATEKEEPING ROLE UNDER MRE 702

In this case, defendant Oakwood Hospital moved in limine to exclude the testimony of Dr. Ronald Gabriel on the basis that Dr. Gabriel’s theory of how plaintiff sustained brain damage was not generally accepted within the medical community, as required by Davis-Frye. Dr. Gabriel’s etiological theory, as summarized by defendant in arguing its motion, was that “hyperstimulat[ion]” of the uterus caused the head of the fetus (plaintiff) to pound against his mother’s pelvic anatomy, thereby producing permanent brain damage. This theory, according to defendant, was novel enough to be excluded and, at best, was admissible only once it passed through the crucible of Davis-Frye analysis.

In response to this motion, plaintiffs attorney produced several articles and authorities that were meant to demonstrate a link between the use of Pitocin and the type of injury sustained by plaintiff. But while some of these articles described a correlation between the use of Pitocin and generalized brain injury, none of these authorities supported the theory of causation actually put forth by Dr. Gabriel. That is, none supported a causal connection between Pitocin and brain injury incurred through repeated pounding of the fetal head against maternal anatomy.

However, the court did not rely on authorities proffered by plaintiff in denying defendant’s motion for a Davis-Frye hearing. Instead of consulting plaintiffs proffered scientific and medical literature, the court erroneously assigned the burden of proof under Davis-Frye to defendant — the party opposing the admission of Dr. Gabriel’s testimony — and held that defendant was not entitled to a hearing because it failed to prove that Dr. Gabriel’s theory lacked “general acceptance.”⁴⁰

When the MRE 702 principles described above are properly applied, it is evident that the trial court abused its discretion in denying defendant’s motion for a Davis-Frye hearing. This abuse of discretion was predicated on two fundamental legal errors.

First, the trial court erred in concluding that it had no obligation to review plaintiffs proposed expert testimony unless defendant introduced evidence that the expert testimony was “novel.” Under MRE 702, the trial court had an independent obligation to review all expert opinion testimony in order to ensure that the opinion testimony satisfied the three Beckley preconditions noted above — that it was rendered by a “qualified expert,” that the testimony would “assist the trier of fact,” and, under the rules of evidence in effect during this trial, that the opinion testimony was rooted in “recognized” scientific or technical principles. These obligations applied irrespective of the type of expert opinion testimony offered by the parties.⁴¹ While a party may waive any claim of error by failing to call this gatekeeping obligation to the court’s attention, the court must evaluate expert testimony under MRE 702 once that issue is raised.

Second, the trial court erred in concluding that there was no justification for a Davis-Frye hearing. At issue was Dr. Gabriel’s opinion that Pitocin administered to Ms. Craig produced contractions of excessive duration and force, that these contractions caused plaintiffs head to be repeatedly ground against Ms. Craig’s pelvic anatomy, and that the resulting head trauma caused plaintiffs cerebral palsy. This causal sequence, defendant argued, has “never been described in medical literature” and was at odds with the testimony of plaintiffs other expert witnesses.

Plaintiff failed to introduce a single authority that truly supported Dr. Gabriel’s theory in response to defendant’s motion. Instead, plaintiff repeatedly stressed that medical literature amply supported the proposition that Pitocin could cause brain damage — a proposition defendant did not contest — and supplied the court with literature to that effect. But this literature had little to do with Dr. Gabriel’s causal theory and therefore did not counter the proposition that his expert opinion was based on novel science.

Therefore, a Davis-Frye hearing was more than justified in light of the information before the trial court when it ruled on defendant’s motion in limine. The proponent of expert opinion testimony bears the burden of proving that the contested opinion is based on generally accepted methodology.⁴² Because there was no evidence to indicate that Dr. Gabriel’s theory was anything but novel, the trial court was required to conduct the Davis-Frye inquiry requested by defendant.

Had the trial court conducted the assessment required by MRE 702, it might well have determined that Dr. Gabriel’s theory was not “recognized” as required by our rules of evidence. Indeed, the evidence plaintiff offered in support of Dr. Gabriel should have provided sufficient notice to the trial court that his theory lacked general acceptance in the medical community. For one thing, Dr. Gabriel was unable to cite a single study supporting his traumatic injury theory during a voir dire conducted at trial. The only authorities he offered for the proposition that excessive amounts of Pitocin may cause cerebral palsy through the traumatic mechanism he described at trial were studies he cited in which Pitocin caused cerebral palsy in animals when given in excessive amounts. These studies did not involve the “bumping and grinding” mechanism on which Dr. Gabriel’s expert testimony relied. In fact, Dr. Gabriel expressly distinguished the mechanism to which he attributed plaintiffs injuries from those at work in the animal studies. It would appear, then, that there was little evidence that Dr. Gabriel’s theory was “recognized,” much less generally accepted, within pediatric neurology.

Second, had the court conducted the MRE 702 inquiry requested by defendant, it might have discovered that Dr. Gabriel’s theory lacked evidentiary support. Dr. Gabriel was unable to identify the specific part of Ms. Craig’s anatomy with which, according to his theory, plaintiffs head repeatedly collided during labor. Indeed, Dr. Gabriel pointedly refused to identify this anatomical structure on a chart, contending that such testimony was beyond his expertise. This failure to root his causal theory in anything but his own hypothetical depiction of female anatomy indicates that Dr. Gabriel’s testimony may have been too speculative under MRE 702 to assist the trier of fact.

Finally, a Davis-Fryef.MRE 702 hearing should have alerted the court to the error described in part IV. At no point did Dr. Gabriel opine that the traumatic and vascular mechanisms he described could cause cerebral palsy, or that those mechanisms might produce the asymmetrical development shown in plaintiffs MRI. Thus, Dr. Gabriel’s testimony supported plaintiffs medical malpractice claim only if the jury was permitted to assume, without supporting evidence, that a causal connection existed between these elements. As shown in part IV, this is not a permissible inference. Consequently, the court again had reason to conclude that Dr. Gabriel’s testimony could not have “assist[ed] the trier of fact” given the yawning gap between Dr. Gabriel’s testimony and the conclusions plaintiff hoped the jury would draw from it.

Although the trial court clearly erred in declining to review Dr. Gabriel’s testimony before its admission, we need not determine whether reversal on this basis alone is warranted under the “substantial justice” standard of our court rules.⁴³ For the reasons stated below, remand for SiDavis-Frye hearing is unnecessary given plaintiffs failure to establish the causation element of his medical malpractice claim.

IV JUDGMENT NOTWITHSTANDING THE VERDICT

Even if plaintiff were able to show upon remand that Dr. Gabriel’s testimony was properly admitted, defendants would nevertheless be entitled to JNOV. The record reveals that the proofs submitted by plaintiff do not support the verdict rendered by the jury because of plaintiffs failure to establish that defendants’ breach of the applicable standard of care proximately caused his cerebral palsy. We therefore reverse and remand for entry of judgment notwithstanding the verdict.

A. STATUTORY AND COMMON LAW BACKGROUND

In order to establish a cause of action for medical malpractice, a plaintiff must establish four elements: (1) the appropriate standard of care governing the defendant’s conduct at the time of the purported negligence, (2) that the defendant breached that standard of care, (3) that the plaintiff was injured, and (4) that the plaintiffs injuries were the proximate result of the defendant’s breach of the applicable standard of care.⁴⁴ These common-law elements have been codified in MCL 600.2912a, which requires a plaintiff alleging medical malpractice to show that

[t]he defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of defendant failing to provide that standard, the plaintiff suffered an injury.

Furthermore, the plaintiff in a medical malpractice case must establish the proximate causation prong of his prima facie case by a preponderance of the evidence.⁴⁵

“Proximate cause” is a legal term of art that incorporates both cause in fact and legal (or “proximate”) cause.⁴⁶ We defined these elements in Skinner v Square D Co:

The cause in fact element generally requires showing that “but for” the defendant’s actions, the plaintiffs injury would not have occurred. On the other hand, legal cause or “proximate cause” normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.[⁴⁷]

As a matter of logic, a court must find that the defendant’s negligence was a cause in fact of the plaintiffs injuries before it can hold that the defendant’s negligence was the proximate or legal cause of those injuries.⁴⁸

Generally, an act or omission is a cause in fact of an injury only if the injury could not have occurred without (or “but for”) that act or omission.⁴⁹ While a plaintiff need not prove that an act or omission was the sole catalyst for his injuries, he must introduce evidence permitting the jury to conclude that the act or omission was a cause.⁵⁰

It is important to bear in mind that a plaintiff cannot satisfy this burden by showing only that the defendant may have caused his injuries. Our case law requires more than a mere possibility or a plausible explanation.⁵¹ Rather, a plaintiff establishes that the defendant’s conduct was a cause in fact of his injuries only if he “set[s] forth specific facts that would support a reasonable inference of a logical sequence of cause and effect.”⁵² A valid theory of causation, therefore, must be based on facts in evidence.⁵³ And while “ ‘[t]he evidence need not negate all other possible causes,’ ” this Court has consistently required that the evidence “ ‘exclude other reasonable hypotheses with a fair amount of certainty.’ ”⁵⁴

In Skinner, for example, we held that the plaintiff failed to show that the defendant’s negligence caused the decedent’s electrocution. Skinner was a product liability action in which the plaintiff claimed that the decedent was killed because an electrical switch manufactured by the defendant had malfunctioned.⁵⁵ The plaintiffs decedent had built a tumbling machine that was used to wash metal- parts, and had used the defendant’s switch to turn the machine on and off.⁵⁶ Wires from the defendant’s switch were attached to the tumbling machine with alligator clips.⁵⁷ Immediately before his death, the plaintiffs decedent was found with both alligator clips in his hands while electricity coursed through his body.⁵⁸

In order to find that a flaw in the defendant’s product was a cause in fact of that electrocution, the jury would have had to conclude, in effect, that the decedent had disconnected the alligator clips and that the machine had somehow been activated again, despite being disconnected from its power source.⁵⁹ Not only was this scenario implausible, but there was no evidence to rule out the possibility that the decedent had been electrocuted because he had mistakenly touched wires he knew to be live. There was no evidence to support the plaintiffs theory of causation.⁶⁰ Consequently, we concluded that the trial court had properly granted summary disposition to the defendant.

Mulholland v DEC Int’l,⁶¹ provides a useful factual counterpoint to Skinner. In Mulholland, the plaintiffs’ herd of milking cows contracted mastitis, a bacterial infection of the udder, after the plaintiffs began to use a milking system built by the defendants.⁶² Key expert testimony was provided by Sidney Beale, an expert in agriculture and dairy science. Mr. Beale had observed a milking at the plaintiffs’ farm and deduced that the mastitis was related to the improper configuration of the milking system.⁶³ He suggested that the plaintiffs implement certain changes, and, indeed, once these were put into practice, the plaintiffs noticed “a decrease in mastitis and an increase in milk production in the herd.”⁶⁴

We held, on the basis of this expert testimony, that the trial court improperly granted a directed verdict to the defendant.⁶⁵ Because Mr. Beale’s testimony was based on his direct observation of the milking machinery, its use on the plaintiffs’ herd, and teat inflammation in the plaintiffs herd following milking, a jury could have reasonably concluded, on the basis of this testimony, that the milking machinery caused mastitis.⁶⁶ While Mr. Beale’s testimony did not rule out every other potential cause of mastitis, this fact merely related to the credibility of his testimony; his opinion was nevertheless admissible and sufficient to support a finding of causation.⁶⁷

B. PLAINTIFF’S FAILURE TO ESTABLISH CAUSATION

The statutory and common-law background provided above makes it clear that a plaintiffs prima facie case of medical malpractice must draw a causal connection between the defendant’s breach of the applicable standard of care and the plaintiffs injuries. In this case, the evidence adduced at trial cannot support the jury’s verdict because plaintiff has failed to make the necessary causal links. Even if plaintiff had shown that defendants breached the standard of care, the jury had no basis in the record to connect this breach to the cerebral palsy, mental retardation, and other injuries now presented by plaintiff.

At trial, plaintiff attempted to connect defendants’ purported violations of the applicable standard of care to plaintiffs injuries through the expert testimony of Drs. Paul Gatewood and Ronald Gabriel. Dr. Gatewood testified principally as a standard of care witness, interpreting the medical records of plaintiff and Ms. Craig, and opining that defendants breached the applicable standard of care by administering excessive amounts of Pitocin and by failing to use an internal uterine pressure catheter. Dr. Gatewood also testified that records from fetal and uterine monitors indicated that Ms. Craig experienced excessive and severe contractions, and that these reduced the flow of oxygenated blood to plaintiff both by compressing the umbilical cord and by reducing the periods of oxygenation between contractions. Dr. Gatewood testified that, as a result, plaintiff suffered from hypoxia and correlated decelerations in his heart rate.

While Dr. Gatewood’s testimony connected defendants’ alleged breach of the standard of care to physiological symptoms displayed by plaintiff before his birth, he specifically declined to connect these prebirth conditions to the particular injuries for which plaintiff sought compensation. Indeed, Dr. Gatewood denied he had the requisite expertise to make the causal linkage and expressly refused to testify to a causal relationship between plaintiffs neurological diseases and his prenatal care. He insisted instead that “what happened to the baby’s brain” was “[within] the purview of a neurologist.”⁶⁸

Plaintiff contended that the link between defendants’ negligence and plaintiffs injuries was to be supplied instead by the expert testimony of Dr. Ronald Gabriel. Dr. Gabriel opined that plaintiffs injuries were attributable to two mechanisms that affected plaintiffs brain before delivery; he referred to these mechanisms as “traumatic” and “vascular.” According to Dr. Gabriel’s testimony, plaintiff sustained “traumatic” injuries when excessive uterine contractions induced by Pitocin caused plaintiffs head to be “pounded or grinded [sic] into [his mother’s] pelvic rim” during her labor. Because of this pounding, plaintiffs brain sustained compression injuries, which resulted in elevated venous “pressures” and impeded “arter[ial] blood flow.” Dr. Gabriel analogized this “venous component” to the distribution of water through a lawn sprinkler system, explaining that increased pressure in certain areas of the brain reduced the flow of oxygenated blood to outlying, “watershed” regions of the brain just as “the last sprinkler who [sic] gets the pressure is the least able to provide water for that area of the lawn.” The crux of Dr. Gabriel’s theory, then, was that plaintiff suffered traumatic head injury during labor and was detrimentally affected by that trauma and the accompanying vascular effects.

Even if we accept Dr. Gabriel’s testimony in full, a fatal flaw remains in plaintiffs prima facie case: Dr. Gabriel never testified that the injuries stemming from this pounding and its accompanying vascular effects could cause cerebral palsy, mental retardation, or any of the other conditions now presented by plaintiff.

Dr. Gabriel began his testimony by explaining that an MRI image showed that plaintiffs brain tissue had developed asymmetrically. He failed, however, to trace this asymmetric development either back to the traumatic and vascular mechanisms he described or forward to the specific neurological conditions presently displayed by plaintiff. Thus, how exactly the mechanisms he described led to cerebral palsy (as opposed to any other neurological impairment) and how they were connected to the asymmetric brain development depicted in plaintiffs MRI was never explained.⁶⁹

It is axiomatic in logic and in science that correlation is not causation.⁷⁰ This adage counsels that it is error to infer that A causes B from the mere fact that A and B occur together. Given the absence of testimony on causation supplied by Dr. Gabriel, the jury could have found for plaintiff only if it indulged in this logical error — concluding, in effect, that evidence that plaintiff may have sustained a head injury, combined with evidence that plaintiff now has cerebral palsy, leads to the conclusion that the conduct that caused plaintiffs head injury also caused his cerebral palsy.

Such indulgence is prohibited by our jurisprudence on causation. We have long required the plaintiff to show “that ‘but for’ the defendant’s actions, the plaintiffs injury would not have occurred.”⁷¹ Where the connection between the defendant’s negligent conduct and the plaintiffs injuries is entirely speculative, the plaintiff cannot establish a prima facie case of negligence.⁷²

Here, any causal connection between plaintiffs cerebral palsy and the events described by Dr. Gabriel had to be supplied ex nihilo by the jury. Therefore, the trial court erred as a matter of law in denying defendants’ motion for JNOV. We reverse the judgment of the Court of Appeals and remand for proceedings consistent with this opinion.

V SUCCESSOR LIABILITY

Although we have established that plaintiff has failed to state a valid claim of medical malpractice, we must also correct an erroneous legal conclusion in the published opinion of the Court of Appeals.

The panel held that Henry Ford Health Care Corporation (Henry Ford)⁷³ was liable as a corporate successor to Associated Physicians, EC. To the contrary, we conclude that the trial court erroneously imposed successor liability on Henry Ford.

At the time of the alleged malpractice in 1980, defendant Drs. Kittur and Gennaoui were employees of Associated Physicians, EC., which was a medical professional corporation organized under the Professional Service Corporation Act.⁷⁴

Six years after plaintiffs birth, Associated Physicians, EC., began to consider the possibility that Henry Ford might take over its administrative and bookkeeping services. While Henry Ford was interested in pursuing this arrangement with Associated Physicians, the latter’s corporate form posed an obstacle. As a professional corporation, Associated Physicians, EC., could neither legally merge with nor sell its shares to Henry Ford, given that Henry Ford’s shareholders were not physicians.⁷⁵

Consequently, Associated Physicians, EC., split into two entities. Its administrative portion was incorporated Associated Physicians Medical Center, Inc., a business corporation in which nonphysicians could legally share ownership and control. Its medical practice, however, became APMC, EC., a new professional corporation.

Henry Ford purchased all the shares of Associated Physicians Medical Center, Inc., in accordance with the Business Corporation Act.⁷⁶ Henry Ford thereby became the parent corporation of Associated Physicians Medical Center, Inc. As the parties intended before the sale, APMC, EC., entered into an agreement with Associated Physicians Medical Center, Inc., in which the latter controlled billing, record keeping, and other administrative aspects of the medical practice. This arrangement ended in 1993, when APMC, EC., dissolved before the initiation of the present lawsuit.

Henry Ford argued that, because it assumed the ownership of only the administrative portion of Associated Physicians, EC. (which was vicariously liable to plaintiff), the equitable concerns that justify the imposition of successor liability are not present in this case. The trial court severed the issue of Henry Ford’s successor liability. After a one-hour bench trial, the trial court held that Henry Ford was liable as a successor corporation to Associated Physicians, EC. The Court of Appeals agreed. Both courts relied in part on the factors listed in Turner v Bituminous Cas Co77 as supporting the imposition of successor liability.⁷⁸

We recently described the scope of successor liability in Foster v Cone-Blanchard Machine Co.79 There, we observed the “traditional rule” that successor liability requires an examination of “the nature of the transaction between predecessor and successor corporations.”⁸⁰ In a merger in which stock is exchanged as consideration, the successor corporation “generally assumes all its predecessor’s liabilities.”⁸¹ When the successor purchases assets for cash, however, the successor corporation assumes its predecessor’s liabilities only

(1) where there is an express or implied assumption of liability; (2) where the transaction amounts to a consolidation or merger;[⁸²] (3) where the transaction was fraudulent; (4) where some of the elements of a purchase in good faith were lacking, or where the transfer was without consideration and the creditors of the transferor were not provided for; or (5) where the transferee corporation was a mere continuation or reincarnation of the old corporation.[⁸³]

Plaintiff has not alleged that the sale of Associated Physicians Medical Center, Inc., was fraudulent, in bad faith, or lacking in consideration. Likewise, plaintiff has adduced no evidence that Henry Ford expressly or impliedly assumed the liabilities of Associated Physicians Medical Center, Inc. Our inquiry therefore must focus on whether (1) the transaction was a consolidation or merger (either de jure or de facto), and (2) whether Henry Ford is a “mere continuation”⁸⁴ of Associated Physicians.

Plaintiffs claim fails on both accounts. First, plaintiff does not allege that a de jure merger took place, and he has not demonstrated that a de facto merger occurred. A de facto merger exists when each of the following requirements is met:

(1) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations.

(2) There is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation.

(3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible.

(4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation. [⁸⁵]

This transaction is not a de facto merger simply because Henry Ford, the purchasing corporation, paid in cash rather than stock. Thus, there is no “continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock . . . .”⁸⁶

We also conclude that Henry Ford is not a “mere continuation” of Associated Physicians Medical Center, Inc. As the history recited above shows, Associated Physicians split into two entities immediately before Henry Ford’s purchase of Associated Physicians Medical Center, Inc. The professional corporation— Associated Physicians’ medical practice — became APMC, PC. Henry Ford was therefore able to purchase only the administrative aspects of the former professional corporation. The core functions of the entity that originally became vicariously liable to plaintiff were carried on exclusively by APMC, PC., a professional corporation, rather than the business corporation purchased by Henry Ford. Having analyzed the “nature of the transaction,”⁸⁷ we can only conclude that the only company even arguably liable as a successor to Associated Physicians, PC., is that which continued its medical practice — namely, APMC, PC.

Moreover, we have never applied successor liability in the medical malpractice context. Plaintiff has adduced no reason why we should do so in this case. Not only are the Turner/Foster requirements not met here but, more important, the policies that justify the imposition of successor liability are noticeably inapplicable here. We stated in Foster that

[t]he thrust of the decision in Turner was to provide a remedy to an injured plaintiff in those cases in which the first corporation “legally and/or practically becomes defunct.” . .. The underlying rationale for the Turner Court’s decision to disregard traditional corporate law principles was to provide a source of recovery for injured plaintiffs.[⁸⁸]

Here, plaintiff has already sought and obtained a judgment from Drs. Gennaoui and Kittur, from Associated Physicians, EC., and from Oakwood Hospital. Because plaintiff obtained a judgment against other sources, there was no need to impose successor liability on Henry Ford, even if the Turner/Foster factors had justified such liability. The trial court erred in imposing successor liability on Henry Ford and the Court of Appeals erroneously affirmed this ruling.

VI. CONCLUSION

We conclude that the trial court erred when it refused to grant defendants’ motion for judgment notwithstanding the verdict. Plaintiff failed to present any evidence from which the fact-finder could reasonably conclude that any breach of the applicable standard of care by defendants proximately caused his cerebral palsy, mental retardation, and other neurological conditions. In addition, the trial court improperly denied defendant Oak-wood Hospital’s motion to compel an evidentiary hearing regarding the qualifications and theories propounded by one of the plaintiffs expert witnesses. Finally, the trial court erred in concluding that Henry Ford Health Care Corporation was a corporate successor to the professional medical corporation that employed Dr. Gennaoui. For those reasons, we reverse the judgment of the Court of Appeals and remand the matter for entry of judgment in defendants’ favor.

Corrigan, C.J., and Weaver, Taylor, and Markman, JJ., concurred with YOUNG, J.

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

2 Dr. Kittur is not a party to this appeal because the jury determined that he was not negligent.

3 Dr. Gennaoui testified that amniotic fluid, which was discharged when plaintiffs amniotic and chorionic membranes burst, protected the fetus from infection.

4 “Pitocin” is a brand name for synthetic oxytocin.

5 Plaintiff contends that records from a fetal uterine monitor show that Ms. Craig was, in fact, experiencing contractions before Dr. Gennaoui’s decision to administer Pitocin.

6 Dr. Gatewood described this solution as a mix of dextrose and water.

7 An Apgar score represents an evaluation of a newborn infant’s physical condition immediately after birth. An infant is evaluated at one and five minutes after birth on five criteria: heart rate, respiratory effort, muscle tone, skin color, and response to stimuli. Each criterion is assigned a value between zero and two, with a score of ten indicating the best condition. Attorney’s Dictionary of Medicine Illustrated, vol 1, p A-475.

8 An “edema” is an “effusion of serious fluid into the interstices of cells in tissue spaces or into body cavities.” Random House Webster’s Unabridged Dictionary (2d ed, 2001).

9 “Encephalopathy” is a general term for any disease of the brain. Random House Webster’s Unabridged Dictionary (2d ed, 2001).

10 Dr. Nigro gave a slightly different diagnosis later, on October 30, 1981, when he opined that plaintiff had chronic, nonspecific encephalopathy with retardation or psychomotor delay, cerebral palsy, and epilepsy. When plaintiff was in his early teens, Dr. Nigro diagnosed him with profound encephalopathy, spastic quadriplegia, mental retardation, and aphasia. “Aphasia” is “the loss of a previously held ability to speak or understand spoken or written language, due to injury of the brain.” Random House Webster’s Unabridged Dictionary (2d ed, 2001).

11 Henry Ford had purchased the administrative portion of Associated Physicians Medical Center, Inc., a business corporation created from the professional corporation that had employed defendants Dr. Gennaoui and Dr. Kittur at the time of the alleged malpractice. The relationships between the corporate entities are discussed in greater detail below.

12 See People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 App DC 46; 293 F 1013 (1923).

13 249 Mich App 534, 544.

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

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

16 Id.

17 MCR 2.613(A).

18 MRE 103(a).

19 Sniecinski v Blue Cross & Blue Shield, 469 Mich 124, 131; 666 NW2d 186 (2003).

20 Id., quoting Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000).

²¹

22 Stevens v McLouth Steel Products Corp, 433 Mich 365, 376; 446 NW2d 95 (1989), quoting Musikiwamba v ESSI, Inc, 760 F2d 740, 750 (CA 7, 1985).

23 Stachnik v Winkel, 394 Mich 375, 383; 230 NW2d 529 (1975).

24 CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 554; 640 NW2d 256 (2002), quoting Grievance Administrator v Underwood, 462 Mich 188, 193; 612 NW2d 116 (2000).

²⁵

26 People v Beckley, 434 Mich 691, 710-711; 456 NW2d 391 (1990) (opinion of Brickley, J.).

27 MRE 702.

²⁸

²⁹

30 Beckley, supra at 711 (opinion of Brickley, J.).

31 MRE 702. This rule was amended effective January 1, 2004, and now provides:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert hy knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

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

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

³⁴

35 343 Mich 348; 72 NW2d 269 (1955).

36 See Frye v United States, 54 App DC 46; 293 F 1013 (1923).

37 Davis, supra at 370.

38 Id. at 372. See also People v Young, 418 Mich 1, 24; 340 NW2d 805 (1983) (“The Davis-Frye standard is the means by which the court can determine that the novel evidence offered for admission here enjoys such recognition.”).

39 People v Young (After Remand), 425 Mich 470, 475; 391 NW2d 270 (1986).

40 Indeed, the trial court was explicit in this regard:

[Allocating the burden of proof to the proponent of novel scientific testimony] would mean that everybody can come in here and allege that whatever everybody’s expert is saying is not supported by scientific data, and I would have to hold a Davis-Frye hearing in every single case where any expert had to testify. And that’s not the standard. You have to submit some evidence to me that I need a Davis-Frye hearing, other than you just saying it.

The dissent makes the same error. See post 100-103. But compare Young (After Remand), supra at 475 (allocating the burden of proof under Davis-Frye to the proponent of novel scientific evidence).

The position advocated by the trial court and the dissent is not only at odds with our Davis-Frye jurisprudence, but it also defies logic. The trial court’s rule would require the party opposing expert testimony to prove a negative — that the expert’s opinion is not generally accepted. This is an unreasonable and thoroughly impractical allocation of the burden of proof.

41 See MRE 702.

42 Young (After Remand), supra at 475.

⁴³

44 Weymers v Khera, 454 Mich 639, 655; 563 NW2d 647 (1997).

45 See MCL 600.2912a(2) (stating that “the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants”).

46 Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994).

47 Id. at 163 (citations omitted).

⁴⁸

49 Id. See also Prosser, Torts (4th ed, 1971), p 239.

50 Jordan v Whiting Corp, 396 Mich 145, 151; 240 NW2d 468 (1976).

51 Skinner, supra at 172-173.

52 Id. at 174.

53 Id. at 166.

54 Id. at 166, quoting with approval 57A Am Jur 2d, Negligence, § 461, p 422.

55 Skinner, supra at 157.

⁵⁶

⁵⁷

⁵⁸

⁵⁹

⁶⁰

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

62 Id. at 399.

63 Id. at 400.

⁶⁴

65 Id. at 398.

66 Id. at 413.

⁶⁷

68 This is a critical fact; the dissent’s analysis suffers for paying insufficient heed to Dr. Gatewood’s disclaimer of expertise regarding the etiology of cerebral palsy. See post at 107.

Indeed, the dissent seems to conflate the testimony of plaintiffs two principal experts by concluding that Dr. Gabriel’s “bumping and grinding” theory of causation was somehow supported by Dr. Gatewood’s testimony about the dangers of excessive doses of Pitocin. In reality, there was a fundamental gap between the theories proffered by these experts. Dr. Gabriel testified that excessive doses of Pitocin caused plaintiffs head to be ground against his mother’s pelvic anatomy and that this grinding, in turn, led to hypoxia. Dr. Gabriel did not testify that an excessive dosage of Pitocin alone — that is, without head compression injuries sustained from repeated contact with maternal anatomy- — could have caused plaintiffs cerebral palsy.

69 Compare 1st of America Bank, Mid-Michigan v United States, 752 F Supp 764, 765 (ED Mich, 1990) (finding that the negligence of Air Force physicians proximately caused a child’s cerebral palsy where the plaintiff and the defendant presented extensive testimony on the etiology of cerebral palsy); Bradford v McGee, 534 So 2d 1076 (Ala, 1988) (holding that the plaintiffs presented evidence sufficient for the jury to determine that the defendant’s negligence proximately caused their son’s cerebral palsy); Dick v Lewis, 506 F Supp 799 (D ND, 1980).

70 United States v O’Hagan, 521 US 642, 691 n 7; 117 S Ct 2199; 138 L Ed 2d 724 (1997) (Thomas, J., concurring in part and dissenting in part).

71 Skinner, supra at 163 (emphasis added).

72 See id. at 174.

73 Henry Ford Health Care Corporation became Henry Ford Heath System in 1989. For the sake of clarity, we refer to both as “Henry Ford.”

74 MCL 450.221 et seq.

75 See, generally, Professional Services Corporation Act, MCL 450.221 et seq. The “shares” of a professional corporation may not be

sold or transferred except to an individual who is eligible to be a shareholder of the corporation or to the personal representative or estate of a deceased or legally incompetent shareholder or to a trust or split interest trust, in which the trustee and the current income beneficiary are both licensed persons in a professional corporation. [MCL 450.230.]

An individual may not become a shareholder in a professional services corporation unless he or she is a “licensed person.” MCL 450.224. A “licensed person” is “an individual who is duly licensed or otherwise legally authorized to practice a professional service by a court, department, board, commission, an agency of this state or another jurisdiction, or any corporation all of whose shareholders are licensed persons.” MCL 450.222(a).

76 MCL 450.1101 et seq.

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

78 See Turner, 397 Mich 430:

(1) There was basic continuity of the enterprise of the seller corporation, including, apparently, a retention of key personnel, assets, general business operations, and even the [corporate] name.

(2) The seller corporation ceased ordinary business operations, liquidated, and dissolved soon after distribution of consideration received from the buying corporation.

(3) The purchasing corporation assumed those liabilities and obligations of the seller ordinarily necessary for the continuation of the normal business operations of the seller corporation.

(4) The purchasing corporation held itself out to the world as the effective continuation of the seller corporation.

79 460 Mich 696; 597 NW2d 506 (1999).

80 Id. at 702.

⁸¹

82 See Turner, supra at 419-420 (“It is the law in Michigan that if two corporations merge, the obligations of each become the obligations of the resulting corporation.”).

83 Id. at 702 (citations omitted).

⁸⁴

85 Turner, supra at 420 (citations, quotation marks, and emphasis deleted), quoting Shannon v Samuel Langston Co, 379 F Supp 797, 801 (WD Mich, 1974).

⁸⁶

87 Foster, supra at 702.

88 Foster, supra at 705-706.