Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  April 13, 2018                                                                      Stephen J. Markman,
                                                                                                 Chief Justice

  154390 & (107)                                                                            Brian K. Zahra
                                                                                    Bridget M. McCormack
  ALEXANDER FIGURSKI, Minor, by his                                                       David F. Viviano
                                                                                      Richard H. Bernstein
  Conservator, HOWARD LINDEN,                                                              Kurtis T. Wilder
               Plaintiff-Appellee,                                                   Elizabeth T. Clement,
  v                                                       SC: 154390                                  Justices
                                                          COA: 318115
                                                          Livingston CC: 11-026468-NH
  TRINITY HEALTH-MICHIGAN, d/b/a SAINT
  JOSEPH MERCY LIVINGSTON HOSPITAL,
  WILLIAM BRADFIELD, M.D., and
  CATHERINE McAULEY HEALTH
  SERVICES CORPORATION, a/k/a SAINT
  JOSEPH MEDICINE FACULTY ASSOCIATES,
  a/k/a SAINT JOSEPH MERCY PRIMARY CARE,
              Defendants-Appellants.
  _________________________________________/

         By order of May 10, 2017, the application for leave to appeal the July 28, 2016
  judgment of the Court of Appeals was held in abeyance pending the decision in Walters v
  Falik (Docket No. 154489). On order of the Court, the case having been decided on
  December 15, 2017, 501 Mich 938 (2017), the application is again considered, and it is
  DENIED, because we are not persuaded that the questions presented should now be
  reviewed by this Court. The motion to strike is DENIED.

        MARKMAN, C.J. (dissenting).

         Plaintiff brought a medical malpractice action against defendants. The trial court
  granted defendants’ motion to exclude plaintiff’s causation experts and granted
  defendants’ motion for partial summary disposition, but the Court of Appeals reversed.
  Because I would reverse the Court of Appeals judgment, I respectfully dissent from this
  Court’s order denying leave to appeal.

         Plaintiff’s complaint alleged that defendants’ malpractice during his mother’s
  labor and delivery caused two injuries: a general hypoxic-ischemic injury to his entire
  brain and a perinatal arterial ischemic stroke (PAIS). More specifically, the complaint
  alleged that these injuries were caused by the compression of plaintiff’s head during
  contractions resulting from the administration of Pitocin to his mother during labor.
  Plaintiff sought to admit expert testimony to prove this theory of causation.

        The admissibility of expert witness testimony is governed by MRE 702, which
  provides:

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

Additionally, trial courts must consider the factors described in MCL 600.2955 when
adjudicating medical malpractice cases:

              (1) In an action for the death of a person or for injury to a person or
      property, a scientific opinion rendered by an otherwise qualified expert is
      not admissible unless the court determines that the opinion is reliable and
      will assist the trier of fact. In making that determination, the court shall
      examine the opinion and the basis for the opinion, which basis includes the
      facts, technique, methodology, and reasoning relied on by the expert, and
      shall consider all of the following factors:

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

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

            (c) The existence and maintenance of generally accepted standards
      governing the application and interpretation of a methodology or technique
      and whether the opinion and its basis are consistent with those standards.

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

             (e) The degree to which the opinion and its basis are generally
      accepted within the relevant expert community. As used in this
      subdivision, “relevant expert community” means individuals who are
      knowledgeable in the field of study and are gainfully employed applying
      that knowledge on the free market.

              (f) Whether the basis for the opinion is reliable and whether experts
      in that field would rely on the same basis to reach the type of opinion being
      proffered.

             (g) Whether the opinion or methodology is relied upon by experts
      outside of the context of litigation.

       We have repeatedly stated that trial courts are gatekeepers with respect to expert
testimony. Clerc v Chippewa Co War Mem Hosp, 477 Mich 1067, 1067-1068 (2007);
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Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780 (2004). In accordance with this
responsibility, they must ensure that expert testimony is not only relevant, but also
reliable. Edry v Adelman, 486 Mich 634, 640 (2010), citing Daubert v Merrell Dow
Pharm, Inc, 509 US 579, 589 (1993). This fundamental duty has remained the same
regardless of the precise standard by which reliability has been judged. Gilbert, 470
Mich at 782. Indeed, when MRE 702 was last amended to conform with its federal
counterpart, the words “the court determines that” in the first sentence of MRE 702 were
retained specifically to emphasize “the centrality of the court’s gatekeeping role . . . .”
MRE 702, 469 Mich cxci-cxcii (staff comment).

       This Court has recognized that the gatekeeping task necessitates a “ ‘searching
inquiry.’ ” Clerc, 477 Mich at 1068, quoting Gilbert, 470 Mich at 782. Above all, it
demands that a court adequately sort the scientific from the “junky.” Kumho Tire Co, Ltd
v Carmichael, 526 US 137, 159 (1999) (Scalia, J., concurring). This is despite the reality
that most judges are general practitioners, not medical specialists. So while a court may
not abandon its gatekeeping function, Gilbert, 470 Mich at 780, it can do no more than
rule on the strength of the record presented, see Edry, 486 Mich at 640-642. And it is
invariably for the proponents of expert testimony to demonstrate that such evidence is
sufficiently reliable. Elher v Misra, 499 Mich 11, 22 (2016).

       Recognizing that trial courts are in the best position to conduct this inquiry, we
have held that the admission of expert testimony is within their reasonable discretion.
See Craig v Oakwood Hosp, 471 Mich 67, 76 (2004). An abuse of discretion occurs
when a court’s decision falls outside the range of principled outcomes or, alternatively,
when an unprejudiced person considering the facts on which the trial court acted would
say that there was no justification for the ruling. Novi v Robert Adell Children’s Funded
Trust, 473 Mich 242, 254 (2005), citing People v Babcock, 469 Mich 247, 269 (2003),
and Gilbert, 470 Mich at 762.

        With these principles in mind, it is clear that the trial court here was acting within
its reasonable discretion when it excluded plaintiff’s experts. The court considered all of
the factors described in MCL 600.2955(1) and determined that plaintiff’s experts did not
present sufficient evidence to support plaintiff’s theory of causation. At the most,
plaintiff’s own evidence indicated only that pressure on the fetal head constitutes one
“risk factor” for hypoxic/ischemic injury and stroke, along with a host of other “risk
factors,” and that, even when three or more “risk factors” are present, hypoxic/ischemic
injury or stroke results in no more than 0.5% of cases. Plaintiff did not present any
evidence that head compression, rather than another risk factor, caused his injuries and
none of the articles cited by plaintiff’s experts directly supported their conclusion that
pressure on the fetal head during labor and delivery causes either brain damage and/or
strokes. See Elher, 499 Mich at 23 (“A lack of supporting literature, while not
dispositive, is an important factor in determining the admissibility of expert witness
testimony.”). Ultimately, the trial court ruled that plaintiff’s experts had not adequately
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demonstrated the reliability of their testimony. Considering the underlying facts, this was
a principled exercise of judgment, discussed at length in a thoughtful 30-page opinion.

        The Court of Appeals criticized the trial court for misunderstanding the gatekeeper
role and resolving the issue of causation instead of determining whether plaintiff’s
experts could offer a reliable opinion. In particular, the Court of Appeals relied heavily
on its prior decision in VanSlembrouck v Halperin, unpublished per curiam opinion of the
Court of Appeals, issued Oct 28, 2014 (Docket No. 309680),1 in which similar testimony
was admitted. Yet the trial court here was obliged to rule on the record of this case, not
some other. And on this record, it clearly stated that plaintiff’s experts failed to explain
why their testimony was reliable. Indeed, the trial court noted that plaintiff’s experts had
argued in a conclusory way that the testimony was admissible under applicable standards,
despite the court’s prompting that they do so in a more robust manner. This does not
mean that the experts were wrong or fabricated their theory. It simply means that they
failed to adequately justify it in this proceeding. The Court of Appeals thus erred by
relying so heavily on VanSlembrouck. What mattered was that the trial court reached a
principled decision on the facts before it.

        Because I do not believe that the trial court abused its discretion by excluding
plaintiff’s causation experts, I would reverse the Court of Appeals judgment and reinstate
the trial court’s order granting defendants’ motion to exclude plaintiff’s causation experts
and granting defendants’ motion for partial summary disposition.

       ZAHRA and WILDER, JJ., join the statement of MARKMAN, C.J.




1
  The defendants in VanSlembrouck sought leave to appeal the Court of Appeals decision
in this Court, but the parties filed a stipulation to dismiss the application before any
action was taken. VanSlembrouck, 868 NW2d 914 (2015).



                         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.
                         April 13, 2018
       d0410
                                                                             Clerk
