Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  May 15, 2020                                                                   Bridget M. McCormack,
                                                                                               Chief Justice

  158259                                                                              David F. Viviano,
                                                                                      Chief Justice Pro Tem

                                                                                    Stephen J. Markman
                                                                                         Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                 Richard H. Bernstein
            Plaintiff-Appellee,                                                    Elizabeth T. Clement
                                                                                   Megan K. Cavanagh,
                                                                                                    Justices
  v                                                      SC: 158259
                                                         COA: 336187
                                                         Allegan CC: 14-018862-FC
  ANTHONY RAY McFARLANE, JR.,
           Defendant-Appellant.

  _________________________________________/

         On March 4, 2020, the Court heard oral argument on the application for leave to
  appeal the June 19, 2018 judgment of the Court of Appeals. On order of the Court, the
  application is again considered, and it is DENIED, because we are not persuaded that the
  questions presented should be reviewed by this Court.

         MARKMAN, J. (concurring).

          The Court of Appeals concluded that the trial court plainly erred when, in a trial
  involving alleged child abuse, it allowed the prosecutor’s expert witness to testify
  regarding the diagnosis of “abusive head trauma”-- a medical diagnosis accepted by the
  American Academy of Pediatrics-- and “definite pediatric physical abuse,” a term the
  expert used interchangeably with “abusive head trauma.” People v McFarlane, 325 Mich
  App 507, 517, 520 (2018). In the judgment of the Court of Appeals, this diagnosis
  “[went] too far” by “implicat[ing] the defendant’s intent or knowledge when performing
  the act that caused the head trauma.” Id. at 523. That said, the Court of Appeals affirmed
  defendant’s conviction because the error did not affect his substantial rights. Id. at 526-
  527. While I concur with this Court’s order denying leave to appeal because the Court of
  Appeals, in my judgment, reached the correct result, I write separately to express why
  there was no “error” in the first place concerning the admission of the expert’s testimony.

         Recently, this Court explained that “an examining physician, if qualified by
  experience and training relative to treatment of sexual assault complainants, can opine
  with respect to whether a complainant ha[s] been sexually assaulted when the opinion is
  based on physical findings and the complainant’s medical history.” People v Thorpe, 504
  Mich 230, 255 (2019), citing People v Smith, 425 Mich 98, 110-112 (1986) (emphasis
  omitted). In People v Harbison, which was decided as a companion case to Thorpe, the
  prosecutor’s expert diagnosed the complainant with “ ‘probable pediatric sexual abuse.’ ”
  Thorpe, 425 Mich at 235. We held that this diagnosis was inadmissible at trial because it
  was not based on physical findings, but rather on “what the victim . . . told the
  physician.” Id. at 261-262 (quotation marks and citation omitted). Thus, in Harbison,
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the trial court plainly erred by admitting the diagnosis “because such testimony vouches
for the complainant’s veracity and improperly interferes with the role of the jury.” Id. at
235. However, what was pointedly not asserted was that mere reference to a medical
condition described as being the product of “abuse” “invades the province of the jury.”

        In the instant case, unlike in Harbison, the expert’s diagnosis of “abusive head
trauma,” or “definite pediatric physical abuse,” was in accord with Harbison because she
based her findings entirely on a personal physical examination of the infant, as well as the
infant’s full medical history. Specifically, she testified that she had conducted a thorough
physical examination; reviewed the medical history, including X-rays, CT scans, MRIs,
and lab reports; and had ordered further testing. After consideration of all the clinical
facts, the expert provided what is widely accepted within the medical community to
constitute a proper and legitimate medical diagnosis. She did not vouch for the veracity
of the infant victim, she did not state or otherwise suggest who specifically caused the
injuries, and she acknowledged that she could not opine as to precisely how the victim
sustained her injuries. And as a result, the expert did not pass judgment on defendant’s
guilt or otherwise invade the province of the jury in any way similar to the expert in
Harbison. Thus, I do not believe the trial court “plainly erred,” or erred at all, by
allowing the expert to testify concerning the diagnosis of medical harm suffered by the
victim.

       The Court’s denial of leave is ambiguous, and therein lies the problem. If it is the
majority’s intention to adopt the Court of Appeals’ analysis that the trial court erred in
some manner by permitting the expert testimony, it might have been more prudent to
have clearly stated so; in my judgment, the analysis of the Court of Appeals has no
provenance in either Harbison or any other decision of this Court. However, if it is the
majority’s intention to conclude only that the Court of Appeals did not err by finding that
the “substantial rights” of the defendant were unaffected by the expert’s testimony,
whether that testimony was proper or not, I again question whether it would have been
more prudent to have stated this intention clearly, for the Court of Appeals’ alteration of
the law in a published opinion is of consequence for the prosecution of child abuse and
“battered infant” cases. In agreement with the Prosecuting Attorneys Association of
Michigan, I believe the Court of Appeals has introduced confusion into the realm of
abusive head trauma cases by imposing upon expert witnesses seeking to testify in
support of this diagnosis the obligation either to obscure a medically accurate description
of the victim’s condition or to run afoul of the standard of the Court of Appeals.

       ZAHRA, J., joins the statement of MARKMAN, J.

       CAVANAGH, J. (concurring).

        I agree with the Court of Appeals that expert testimony was erroneously admitted
in this case, that the error was plain, and that the error did not affect the outcome of the
trial. People v McFarlane, 325 Mich App 507, 518-527 (2018). I write separately to
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explain why the Court of Appeals decision, while not controlled by our decision in the
companion cases of People v Thorpe and People v Harbison, 504 Mich 230 (2019), is
nevertheless consistent with that decision and why this Court should deny leave rather
than issue an opinion affirming the Court of Appeals.

       The trial court in this case erred by allowing a prosecution expert to opine to the
jury that the complainant had suffered “abusive head trauma” and “definite pediatric
physical abuse.” In People v Smith, 425 Mich 98, 115 (1986), we held that a physician
could testify as to the results of a physical examination of a complainant in a sexual
assault case, but that any opinion must be “based upon a proper factual foundation.” That
foundation was lacking in Smith because the expert’s “opinion that the complainant had
been sexually assaulted was based, not on any findings within the realm of his medical
capabilities or expertise as an obstetrician/gynecologist, but, rather, on the emotional state
of, and the history given by, the complainant.” Id. at 112. In Harbison, Thorpe’s
companion case, we held that “an examining physician, if qualified by experience and
training relative to treatment of sexual assault complainants, can opine with respect to
whether a complainant ha[s] been sexually assaulted when the opinion is based on
physical findings and the complainant’s medical history.” Thorpe, 504 Mich at 255. In
both Smith and Harbison, physicians testifying as expert witnesses had opined on
whether the complainant had been sexually assaulted based on the physician’s opinions
of the complainant’s veracity, rather than physical evidence, which amounted to improper
vouching for the complainant. Smith, 425 Mich at 112-113; Thorpe, 504 Mich at 262-
263.

       I agree with the Court of Appeals that, at least under Smith and Harbison, a
physician may opine on whether physical injuries are the result of human agency as long
as that opinion is grounded in the physical findings of the examination. 1 But the terms
“abusive head trauma” and “definite pediatric physical abuse” carry connotations greater
than mere human agency. As the Court of Appeals explained:

       The ordinary understanding of the term “abuse”—as opposed to neglect or
       carelessness—implies a level of willfulness and moral culpability that
       implicates the defendant’s intent or knowledge when performing the act
       that caused the head trauma. [McFarlane, 325 Mich App at 523.]
More than merely providing an opinion from which the jury could infer that the
defendant possessed the requisite intent, the expert explicitly connected the terms to the
defendant’s state of mind:

       She repeatedly told the jury that KM’s injuries were “caused by definite
       pediatric physical abuse,” and she stated that “we know that abusive head

1
  Any such opinion would of course be subject to challenge under MRE 702 and Daubert
v Merrell Dow Pharm, Inc, 509 US 579 (1993).
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       trauma” causes these injuries because people confess to hospital staff and
       investigators or other family members after inflicting the injuries. She also
       agreed that KM had suffered previous abuse even though she was only nine
       weeks old. She further told the prosecutor that she was correct when the
       prosecutor noted that Brown looked at the totality of the circumstances
       before concluding that this case involved “child abuse.” [Id. at 524.]
       The testimony as a whole went beyond the “proper factual foundation” required by
Smith and was not based solely on the “physical findings” as required by Harbison.

       Our decision in Harbison does not broadly sanction, without limitation, all expert
testimony that a victim was abused as long as the expert’s opinion is based on physical
findings and the complainant’s medical history. The question we decided in Harbison
was whether the expert improperly vouched for a witness. The question the Court of
Appeals decided in this case was whether the diagnostic labels “abusive head trauma”
and “definite pediatric physical abuse” invade the province of the jury. McFarlane, 325
Mich App at 523. The Court of Appeals was correct that these diagnoses imply a level of
willfulness and culpability that the jury alone is tasked to determine. Id. While the Court
of Appeals explained that an expert opinion that trauma was inflicted or not accidental
would be permissible if based on objective medical evidence, the challenged terminology
“goes too far.” Id.

        The terminology at issue here has the potential to confuse medical diagnosis with
legal determination and is more prejudicial than probative in violation of MRE 403. The
fact that the medical community has decided to use certain terminology for a diagnosis
does not relieve the trial court of its obligation to ensure that overly prejudicial testimony
is not admitted. Even the Prosecuting Attorneys Association of Michigan admits that this
terminology presents a risk of prejudice and juror confusion, offering a proposed jury
instruction to lessen this risk. In this child abuse trial, where the diagnoses at issue
suggested that the expert could and did determine that the defendant acted knowingly or
intentionally and was criminally responsible for child abuse, the expert’s testimony was
admitted in error.

       Further, I agree with the Court of Appeals that the error here was plain. People v
Carines, 460 Mich 750, 763 (1999). As we said in Harbison, “[o]ur decision in Smith
was unanimous and has never been called into question. Smith provides a very
straightforward bright-line test that trial courts can readily observe.” Thorpe, 504 Mich
at 262. But I also agree with the Court of Appeals that the error did not “affect[] the
outcome of the lower court proceedings,” Carines, 460 Mich at 763, for the reasons the
court discussed, McFarlane, 325 Mich App at 525-527.

       I appreciate Justice MARKMAN’s concern that our resolution of this case could
create ambiguity. If the Court of Appeals had erred on its substantive determination as to
the admissibility of the expert testimony, I agree that this Court’s role would have been to
clarify the state of the law. But, as explained earlier, I believe the Court of Appeals
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opinion is correct. Because the opinion below is published, it has precedential effect.
MCR 7.215(C)(2). Consequently, I do not see an ambiguity that needs to be clarified.

      MCCORMACK, C.J., joins the statement of CAVANAGH, J.




                        I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        May 15, 2020
       t0512
                                                                            Clerk
