Craig v. Oakwood Hospital

Kelly, J.

{concurring in part and dissenting in part). I dissent from the majority’s decision that the trial court abused its discretion in denying a Davis-Frye1 hearing. I also disagree that there was insufficient evidence of causation. I agree with the conclusion that Henry Ford Hospital is not liable under the theory of successor liability. Therefore, with respect to the defendants other than Henry Ford Hospital, I would affirm the rulings of both lower courts for plaintiff.

THE DAVIS-FRYE HEARING

Defendant Oakwood Hospital failed to present any substantiation for its motion asserting that the testimony of plaintiffs causation expert, Dr. Ronald Gabriel, was inadmissible because it was not recognized in the scientific community. Rule 2.119(A)(1)(b) of the Michi*101gan Court Rules requires that a motion state with particularity the grounds and authority on which it is based. All that defendant stated was a conclusory and overbroad statement that

[t]he testimony and opinions regarding plaintiffs condition and the causes for it that were offered by Dr. Ronald Gabriel in deposition are groundless in the extreme and, by his own admission, without support or even mention in modern medical literature.

To this statement, defendant attached several pages of Dr. Gabriel’s deposition testimony. After reviewing them, I find that Dr. Gabriel’s only relevant admission is that few recent studies regarding fetal head compression exist because it occurs rarely. The reason it occurs rarely is that fetal heart monitors and other medical technology help detect the conditions associated with it so that head compression is averted.

A lack of recent studies does not necessarily indicate that a scientific theory has been abandoned or has fallen into disrepute. It may indicate that the theory has become generally accepted. For instance, although there are no recent scientific studies showing the shape of the earth, the statement, “The earth is round,” would be accepted in the scientific community.

In its response to defendant’s motion, plaintiff cited the Physician’s Desk Reference and quoted a textbook describing the effects of labor on a fetus. Defendant offered nothing in response. Had it set forth specific grounds and authority to support the motion, a Davis-Frye hearing would have been appropriate.

Under the majority’s relaxed standard articulated today, whenever in the future a party claims that a theory is “groundless in the extreme,” it appears that party will be entitled to a Davis-Frye hearing. This effectively removes from the trial court the discretion to *102decide whether a hearing is needed, making it automatic. Criminal defendants questioning proffered testimony regarding the psychological effect their actions had on a child victim could receive a Davis-Frye hearing on the bald assertion that the testimony is unacceptable in the scientific community.

Defendant’s written motion was vague. Attached to it was some of Dr. Gabriel’s deposition testimony in which he stated that a compression injury occurred and that it resulted from the administration of excessive Pitocin. The court heard oral argument on the motion. In focusing on the expert testimony that it believed was inadmissible, defendant referred to Dr. Gabriel’s testimony that plaintiff had experienced a traumatic head injury during childbirth. It asked for a hearing at which it might present an expert to testify that there is no scientific support for this theory. Defendant did not have an expert nor did it provide an affidavit signed by an expert indicating that Dr. Gabriel’s theory is not recognized in the scientific community.

In denying the motion, the judge noted:

The problem with your [defendant’s] motion is you don’t have any Affidavits. You don’t have any evidence in there that — I mean, that there should be a Davis Frye Hearing. I mean, it’s just you as an attorney saying that... [granting a hearing without any support for defendant’s argument] would mean that everybody can come in here and allege that whatever everybody’s expert is saying is not supported by scientific data, and I would have to hold a Davis Frye Hearing in every single case where any expert had to testify. And that’s not the standard. You have to submit some evidence to me that I need a Davis Frye Hearing, other than you just saying it.[2]

*103The judge indicated a willingness to revisit the motion should defendant provide support for its contention: “[Y]ou can submit anything additional. I will take a look at it. But that’s my ruling today.” Defendant never renewed the motion.

The Michigan Rules of Evidence grant considerable deference to a trial judge in ruling on motions. With regard to preliminary questions, MRE 104(a) provides that questions regarding the qualification of a person to be a witness and the admissibility of evidence “shall be determined by the court.... In making its determination, it is not bound by the Rules of Evidence except those with respect to privileges.” Contrary to the majority’s assertions and in accordance with this rule, the trial court was not bound by MRE 702, which governs the testimony of expert witnesses, when it ruled on defendant’s motion.

*104It is without question that, once a defendant shows that a genuine issue exists with regard to a theory’s acceptance, the theory’s proponent must prove its acceptance in the medical community. But before that, the party raising the issue must present more than a conclusory allegation that an issue exists.

Defendant failed to make the necessary showing in this case. It never provided support for counsel’s proposition that Dr. Gabriel’s traumatic injury theory lacked recognition in the scientific community. Even given the opportunity to provide support to the court, defendant was either unwilling or unable to do so. Hence, the trial court did not abuse its discretion when it refused to hold a Davis-Frye hearing.

THE EVIDENCE OF CAUSATION

Defendants assert that plaintiff failed to present sufficient evidence that his damages were caused by defendants’ medical malpractice to allow the case to go to the jury. In presenting its evidence of a prima facie case, a plaintiff must show causation but need not use any particular formulation of words.

In this case, plaintiffs expert did not say “Antonio Craig’s cerebral palsy was caused by hypoxia resulting from defendants’ breaches of the standard of care.” Although desirable, such precision is simply not mandated. “[T]he plaintiffs evidence is sufficient if it ‘establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible theories ....’” Skinner v Square D Co, 445 Mich 153, 159-160; 516 NW2d 475 (1994), quoting Mulholland v DEC Int’l Corp, 432 Mich 395, 415; 443 NW2d 340 (1989).

The trial court ruled that plaintiff presented sufficient evidence. After the jury found for plaintiff, defen*105dants moved for judgment notwithstanding the verdict. The motion was denied, and on appeal defendants challenge that ruling. They question the sufficiency of the evidence only with respect to the element of causation.

The standard for reviewing a decision on a motion for judgment notwithstanding the verdict is deferential to the nonmoving party:

If reasonable jurors could disagree, neither the trial court nor this Court has the authority to substitute its judgment for that of the jury. [Matras v Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986).]

The trial court found:

Dr. Donn testified that Pitocin can cause both trauma and hypoxia. Dr. Gatewood testified that Pitocin can cause compression, and compression can cause head injury. Dr. Dombrowski testified that Pitocin can cause trauma and hypoxia. Dr. Gabriel testified that Antonio suffered a brain injury during labor and delivery, based on the character of the labor and delivery, based on the fetal monitoring, based on the positioning of the head, based on the MRI findings, it was caused by the use of Pitocin. He testified that there was compression of the head in the pelvic ridge. There was elevation of the venous pressure and loss of blood flow and the loss of oxygen and fusing the brain.

Testimony was also presented that an excessive dose of Pitocin causes cerebral palsy in animals. The majority notes that animal experiments are the only authority that plaintiff offered showing a correlation between excessive amounts of Pitocin and cerebral palsy. The implication is that animal studies are insufficient evidence upon which to base medical expert testimony. That is incorrect.

Dr. Gabriel’s authority was sufficient for a jury reasonably to infer that the same effects occur in humans. Dr. Gabriel also testified that the animal *106studies were the types “upon which the American Medical Establishment formulated their warnings on the use of oxytoxic drugs.” These warnings appear in medical reference materials discussing the effects of Pitocin. Defendants did not refute these statements.

Dr. Gabriel testified that he believed that excessive Pitocin caused plaintiffs condition. He testified that the drug affected plaintiff in two ways. It produced both a vascular effect and a traumatic effect. At trial, Dr. Gabriel used the terms “pounding and grinding” to explain the traumatic component of the injury. He testified:

In part, what happened to Antonio I think is more complicated because I think there is a traumatic component as well as a vascular component. Those studies showed the vascular component, that is to say the reduced blood flow.
Antonio also suffered from the trauma of the head being pounded or grinded [sic] into the pelvic rim with successive uterine contractions which were of a high pressure and which resulted in marked decelerations. So I think it’s a combination of vascular and trauma.

Dr. Gabriel testified that what happened to Antonio Craig would not have happened without the administration of Pitocin.

The majority focused attention on Dr. Gabriel’s “pounding and grinding” theory as if it were the only theory that plaintiff presented. It was not. Dr. Gabriel testified that there were two different contributors to plaintiffs injuries. He claimed that plaintiff suffered from both a decreased blood flow and from a traumatic compression injury.3

*107In addition to Dr. Gabriel, Dr. Paul Gatewood testified for plaintiff regarding the standard of care. He stated that an excessive dosage of Pitocin was given to plaintiffs mother. In his expert opinion, this was a deviation from the standard of care. Dr. Gatewood also explained that the administration of excessive Pitocin was the proximate cause of Antonio’s injuries.4

After Dr. Gatewood established a breach of duty, Dr. Gabriel testified that excessive Pitocin causes fetal brain damage and cerebral palsy in animals. In Dr. Gabriel’s opinion, the excessive Pitocin caused the fetal brain damage that led to Antonio’s cerebral palsy.5 In all, there was sufficient evidence to establish the element of causation. The jury was entitled to decide the case on the evidence presented.

CONCLUSION

The failure to hold a Davis-Frye hearing was not an abuse of discretion under the facts of this case. Defen*108dant Oakwood had an obligation to provide support for the claim that Dr. Gabriel’s traumatic injury theory was not accepted within the scientific community.

Moreover, plaintiff presented sufficient evidence to establish the element of causation. Both Dr. Gabriel and Dr. Gatewood testified effectively that an excessive dosage of Pitocin gave rise to the conditions that caused the baby’s injuries.

Therefore, I would affirm the decision of the Court of Appeals on all issues except that Henry Ford Hospital is liable under a theory of successor liability. In that regard, I agree with the majority’s conclusion that the Court of Appeals was incorrect. With that exception, the decision of the Court of Appeals should be affirmed.

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

As did the judge in this case, others have noted the difference between the burden of persuasion, which is on the proponent of the evidence, and the initial burden of production. “Because of judicial economy and the *103‘liberal thrust’ of the rules pertaining to experts, it seems reasonable to place the initial burden of production on the opponent for purposes of [a] hearing.” Gentry v Magnum, 195 W Va 512, 522; 466 SE2d 171 (1995). Appellate decisions in the area offer “little guidance on how trial courts should procedurally accomplish their gatekeeping responsibilities without frustrating” the policy of liberal admissibility of expert evidence. Alberts v Wickes Lumber Co, 1995 US Dist LEXIS 5893 (ND Ill, 1995).

Commentators have also addressed the problem. They have noted that allocating the initial burden of production to the opponent of the evidence “furthers the [] gatekeeping objective without hampering the ‘liberal thrust’ of the [rules of evidence].” Accordingly, the opponent’s burden is merely to go forward with evidence showing that the plaintiffs expert proof is inadmissible. “Plaintiff bears the burden of showing by a preponderance of the evidence that the expert’s opinion is admissible.” Berger, Procedural paradigms for applying the Daubert test, 78 Minn L Rev 1345, 1365-1366 (1994). See, also, Brown, Procedural issues under Daubert, 36 Hous L Rev 1133, 1140-1141 (1999). While these decisions and articles deal with the newer Daubert test, the inquiry about who bears the burden of production is not affected. See Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993). The change occasioned by the adoption of the Daubert test relates only to what the proponent must show to prove admissibility once the determination is made that a hearing is warranted.

The majority maintains that “Dr. Gabriel did not testify that an excessive dosage of Pitocin alone ... could have caused plaintiffs cerebral palsy.” Ante at 91 n 68 (emphasis in original). Yet, the majority begins its causation discussion by noting that “[e]ven if plaintiff were *107able to show upon remand that Dr. Gabriel’s testimony was properly admitted, defendants would nevertheless be entitled to JNOV.” Ante at 85. Thus, for purposes of its causation discussion, the majority assumes both theories were admissible. Were this not the case, the proper outcome should be a remand for a Davis-Frye hearing, not an appellate ruling that the defendants were entitled to jnov. The testimony of Dr. Gabriel indicates that excessive Pitocin causes reduced blood flow (“the vascular component”). The studies showed a link between this vascular component and cerebral palsy. There was sufficient evidence of causation, regardless of the majority’s reading of the record.

When plaintiffs counsel asked whether these deviations “were the proximate causes of the reduced oxygen, reduced blood flow to the fet[us] here Antonio Craig,” the doctor answered “[Tjhese deviations are a result in the hypoxic episodes ... all of these factors contributed to the development and prolongation of the interim hypoxia that this baby’s brain suffered.”

When asked whether Antonio’s cerebral palsy was related to the administering of Pitocin, the doctor testified that “without Pitocin this would not have happened.”