                                                                  Michigan Supreme Court
                                                                        Lansing, Michigan




Opinion
                                         Chief Justice 	              Justices
                                         Maura D. Corrigan 	          Michael F. Cavanagh
                                                                      Elizabeth A. Weaver
                                                                      Marilyn Kelly
                                                                      Clifford W. Taylor
                                                                      Robert P. Young, Jr.
                                                                      Stephen J. Markman



                                                           FILED JULY 23, 2004 




 ANTONIO CRAIG, by his next
 friend, KIMBERLY CRAIG,

         Plaintiff-Appellee,

 v                                                                 Nos. 121405
                                                                     121407-09
 OAKWOOD HOSPITAL, HENRY FORD                                           121419
 HOSPITAL, doing business as HENRY FORD
 HEALTH SYSTEM, ASSOCIATED
 PHYSICIANS, P.C., and ELIAS
 G. GENNAOUI, M.D.,

         Defendants-Appellants,

 and

 AJIT KITTUR, M.D.,

      Defendant.
 ________________________________

 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



                                    1

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 plaintiff’s present neurological and physiological

condition.

     Following        a    five    week     trial,    the    jury     returned    a

verdict in plaintiff=s favor.                  The trial court thereafter

determined     that       defendant      Henry      Ford   Health     System    was

liable as a successor corporation to defendant Associated

Physicians, P.C.            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

plaintiff’s birth on July 16, 1980.                        Plaintiff’s mother,



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

                                          2

Kimberly       Craig,        received       prenatal          care     from     defendant

Associated Physicians, P.C.                     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 plaintiff’s birth, but was primarily

attended to by Dr. Gennaoui during plaintiff’s 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

plaintiff’s 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


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

                                                3

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            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.            Plaintiff’s          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



        3
       Dr. Gennaoui testified that amniotic fluid, which was
discharged   when   plaintiff’s   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.

                                               4

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 D5W,6 a solution other than the

5%    Ringer’s        lactate     Ms.      Craig       was        already        receiving

intravenously.              Thus,       according            to     Dr.        Gatewood’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       plaintiff’s      birth       show         that        Ms.     Craig        began

experiencing          contractions       of         “moderate”       strength          after

receiving        Pitocin        and      that         “moderate”           contractions

continued until plaintiff’s 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


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

                                           5

because    the    Pitocin     administered            to   Ms.     Craig      caused

contractions       of     excessive           intensity          and       duration.

Plaintiff’s      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

plaintiff’s 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




      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.

                                        6

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

plaintiff’s condition was unclear.10



        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,

                                            7

      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     plaintiff’s        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    plaintiff’s         head   against    his         mother’s

“pelvic rim” before birth.

      Plaintiff also named Associated Physicians, P.C., 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




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).

                                            8

Ford Hospital under a successor liability theory.11

        On    January      21,    1997,       defendant     asked    the    Court      to

exclude the testimony of Dr. Ronald Gabriel, plaintiff’s

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, P.C.

        After the jury found in plaintiff’s 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 plaintiff’s favor, but ordered remittitur

because of the jury’s overestimation of plaintiff’s lost




        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).

                                              9

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    plaintiff's      expert

witnesses; (2) Whether the trial court erred in finding

defendant           Henry    Ford     Hospital        liable     on     a    successor

liability theory.”14             We denied plaintiff’s 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



        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.

                                             10

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




       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
            Id.
       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).

                                     11

                 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



        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).

                                          12

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


      25
           Id.
      26
        People v Beckley, 434 Mich 691, 710-711; 456 NW2d
391 (1990) (opinion of BRICKLEY, J.).
      27
           MRE 702.
      28
           Id.

                                      13

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


    29
         MRE 702.
    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 by knowledge,
    skill, experience, training, or education may
    testify thereto in the form of an opinion or
    otherwise if (1) the testimony is based on
    sufficient facts or data, (2) the testimony is
    the product of reliable principles and methods,
    and (3) the witness has applied the principles
    and methods reliably to the facts of the case.

                                14

      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,35     now    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




      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
           Id.
      35
           343 Mich 348; 72 NW2d 269 (1955).
      36
           See Frye v United States, 54 App DC 46; 293 F 1013
(1923).

                                          15

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 	 RIAL COURT’S FAILURE TO
                      T                                                   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

      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).

                                          16

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,         plaintiff’s           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         plaintiff’s

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.


                                           17

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    plaintiff’s     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


     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 at 2-4.
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.

                                    18

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 plaintiff’s head to

be repeatedly ground against Ms. Craig’s pelvic anatomy,

and    that     the     resulting      head      trauma       caused     plaintiff’s

cerebral palsy.             This causal sequence, defendant argued,

has “never been described in medical literature” and was at

odds     with     the      testimony      of     plaintiff’s           other    expert



        41
             See MRE 702.

                                          19

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

requirement by MRE 702, it might well have determined that



       42
            Young (After Remand), supra at 475.

                                            20

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 plaintiff’s 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


                                         21

anatomy with which, according to his theory, plaintiff’s

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-Frye/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 plaintiff’s MRI.               Thus, Dr. Gabriel’s testimony

supported plaintiff’s 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.


                                        22

      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 a

Davis-Frye hearing is unnecessary given plaintiff’s 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 plaintiff’s 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



      43
           MCR 2.613(A).

                                    23

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     plaintiff’s

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



       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

                                     24

Co:

            The cause in fact element generally requires
       showing that “but for” the defendant’s actions,
       the plaintiff’s 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

plaintiff’s            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


NW2d 475 (1994).
       47
            Id. at 163 (citations omitted).
       48
            Id.
       49
            Id.    See also Prosser, Torts (4th ed, 1971), p 239.
       50
       Jordan v Whiting Corp, 396 Mich 145, 151; 240 NW2d
468 (1976).

                                                25

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 plaintiff’s decedent had



     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.

                                          26

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 plaintiff’s 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 plaintiff’s theory of

causation.60          Consequently,       we        concluded     that    the   trial

court        had    properly    granted     summary        disposition      to    the


        56
             Id.

        57
             Id.

        58
             Id.

        59
             Id.

        60
             Id.


                                          27

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


       61
            432 Mich 395; 443 NW2d 340 (1989).
       62
            Id. at 399.
       63
            Id. at 400.
       64
            Id.
       65
            Id. at 398.

                                             28

plaintiff’s       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    plaintiff’s     prima    facie    case   of

medical malpractice must draw a causal connection between

the defendant’s breach of the applicable standard of care

and the plaintiff’s 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




     66
          Id. at 413. 

     67
          Id.


                                         29

plaintiff’s 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 plaintiff’s neurological diseases and his prenatal


                                         30

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   plaintiff’s     injuries    was    to   be    supplied

instead by the expert testimony of Dr. Ronald Gabriel.                    Dr.

Gabriel opined that plaintiff’s injuries were attributable

to two mechanisms that affected plaintiff’s 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 plaintiff’s

head to be “pounded or grinded [sic] into [his mother’s]

pelvic rim” during her labor.              Because of this pounding,




      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 11-12.

     Indeed, the dissent seems to conflate the testimony of
plaintiff’s 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 plaintiff’s 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 plaintiff’s cerebral
palsy.

                                    31

plaintiff’s        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 plaintiff’s 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 plaintiff’s 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


                                          32

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     plaintiff’s           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 plaintiff’s head


        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).

                                                33

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 plaintiff’s

injury would not have occurred.”71                           Where the connection

between      the        defendant’s         negligent          conduct      and   the

plaintiff’s injuries is entirely speculative, the plaintiff

cannot establish a prima facie case of negligence.72

     Here,        any     causal        connection           between      plaintiff’s

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 LIABLITY

     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




     71
          Skinner, supra at 163 (emphasis added). 

     72
          See id. at 174. 


                                            34

(Henry       Ford)73      was    liable       as    a    corporate        successor       to

Associated Physicians, P.C.                    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,          P.C.,          which     was      a     medical

professional corporation organized under the Professional

Service Corporation Act.74

       Six        years     after          plaintiff’s           birth,        Associated

Physicians, P.C., 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,        P.C.,

could neither legally merge with nor sell its shares to

Henry Ford, given that Henry Ford=s shareholders were not

physicians.75



       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

                                              35

       Consequently, Associated Physicians, P.C., 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, P.C., a new professional corporation.

       Henry     Ford       purchased     all    the      shares   of       Associated

Physicans       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, P.C.,

entered       into     an     agreement       with        Associated        Physicians

Medical       Center,       Inc.,    in   which        the    latter    controlled


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.

                                          36

billing, record keeping, and other administrative aspects

of the medical practice.            This arrangement ended in 1993,

when APMC, P.C., 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,       P.C.     (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, Inc.                 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




          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.

                                      37

        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


             (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
             Id.
        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.”).

                                        38

      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.

      Plaintiff’s            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

      83
           Id. at 702 (citations omitted). 

      84
           Id.


                                           39

        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, Inc.               Henry Ford was therefore able

to purchase only the administrative aspects of the former



        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
             Id.

                                         40

professional corporation.               The core functions of the entity

that originally became vicariously liable to plaintiff were

carried        on     exclusively      by     APMC,     Inc.,      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,          P.C.,     is    that    which      continued       its   medical

practice—namely, APMC, Inc.

       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]

       87
            Foster, supra at 702.

       88
            Foster, supra at 705-706.




                                            41

Here, plaintiff has already sought and obtained a judgment

from Drs. Gennaoui and Kittur, from Associated Physicians,

P.C.,     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.

                                V.      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 Oakwood Hospital’s motion

to      compel     an      evidentiary        hearing      regarding         the

qualifications      and     theories        propounded    by    one    of    the

plaintiff=s      expert    witnesses.         Finally,    the     trial     court

erred in concluding that Henry Ford Health Care Corporation

was   a   corporate       successor    to     the    professional      medical



                                      42

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.

                              Robert P. Young, Jr.
                              Maura D. Corrigan
                              Elizabeth A. Weaver
                              Clifford W. Taylor
                              Stephen J. Markman




                             43

                 S T A T E     O F    M I C H I G A N 


                             SUPREME COURT 



ANTONIO CRAIG, by his next
friend, KIMBERLY CRAIG,

      Plaintiff-Appellee,

v                                                             Nos. 121405
                                                            121407-121409
                                                                   121419
OAKWOOD HOSPITAL, HENRY FORD
HOSPITAL, doing business as
HENRY FORD HEALTH SYSTEM,
ASSOCIATED PHYSICIANS, P.C.,
and ELIAS G. GENNAOUI, M.D.,

      Defendants-Appellants,

and

AJIT KITTUR, M.D.,

      Defendant.

_______________________________

CAVANAGH, J. (concurring).

      I concur with the majority in this case.                   I write

separately, however, because I do not agree with some of

the rationale regarding successor liability articulated by

the   majority   in   part   V.      Therefore,   as   it    pertains   to

successor liability, I concur in the result only.

                                     Michael F. Cavanagh
                      S T A T E      O F   M I C H I G A N 


                                  SUPREME COURT 



ANTONIO CRAIG by his next
friend, Kimberly Craig,

        Plaintiff-Appellee,

v                                                                  Nos. 121405
                                                                 121407-121409
OAKWOOD HOSPITAL, HENRY FORD                                            121419
HOSPITAL, doing business as
HENRY FORD HEALTH SYSTEM,
ASSOCIATED PHYSICIANS, P.C.,
and ELIAS G. GENNAOUI, M.D.,

        Defendants-Appellants,

and

AJIT KITTUR, M.D.,

     Defendant.
_______________________________

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



        1
       People v Davis, 343 Mich 348; 72 NW2d 269 (1955), and
Frye v United States, 54 App DC 46; 293 F 1013 (1923).
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 plaintiff's causation expert, Dr. Ronald Gabriel, was

inadmissible       because    it   was    not    recognized      in    the

scientific community.         Rule 2.119(A)(1)(b) of the Michigan

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
       plaintiff's 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.



                                   2

       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   decide

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.


                                           3

      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]


      2
          As did the judge in this case, others have noted the


                                         4

The 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.



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 '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 plaintiff's 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.




                               5

        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.

        It 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


                                              6

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, plaintiff's 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

plaintiff's     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 found that plaintiff presented

sufficient evidence.         After the jury found for plaintiff,

defendants moved for judgment notwithstanding the verdict.

The motion was denied, and on appeal defendants challenge

that ruling.      They question the sufficiency of the evidence


                                       7

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


                                 8

reasonably to infer that the same effects occur in humans.

Dr. Gabriel also testified that the animal studies 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 plaintiff's 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



                                         9

"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

plaintiff's injuries. He claimed that plaintiff suffered

from       both   a     decreased      blood        flow   and    from   a    traumatic

compression injury.3

       In     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

plaintiff's           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




       3
        The majority maintains that "Dr. Gabriel did not
testify that an excessive dosage of Pitocin alone . . .
could have caused plaintiff's cerebral palsy." Ante at 31
n 68 (emphasis in original). Yet, the majority begins its
causation discussion by noting that "[e]ven if plaintiff
were able to show upon remand that Dr. Gabriel's testimony
was properly admitted, defendants would nevertheless be
entitled to JNOV." Ante at 23. 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.


                                              10

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. Defendant

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


      4
        When   plaintiff's  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 "[T]hese 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."
      5
        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.”


                                    11

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.

                                    Marilyn Kelly




                                   12

