                          STATE OF MICHIGAN

                            COURT OF APPEALS



MICHELE HOLT and FLOYD HOLT,                                        UNPUBLISHED
                                                                    May 26, 2016
              Plaintiffs-Appellees,

v                                                                   No. 325345
                                                                    Wayne Circuit Court
LEGACY HHH, VHS HARPER-HUTZEL                                       LC No. 13-002501-NO
HOSPITAL, INC., and HOLLISTER-WHITNEY
ELEVATOR CORPORATION,

              Defendants,

and

OTIS ELEVATOR COMPANY,

              Defendant-Appellant.


Before: BOONSTRA, P.J., and METER and BECKERING, JJ.

BOONSTRA, P.J. (concurring):

       I concur. I write separately simply to stress the following two points:
        First, I conclude from the evidentiary record that the causation standard of Skinner v
Square D Co, 445 Mich 153; 516 NW2d 475 (1994), has been satisfied, and that the question of
causation should thus be decided by a jury. Defendant posits that plaintiff’s causation theory is
wholly speculative because there are numerous potential causes for the overspeed switch to have
tripped and because the precise details of how that tripping occurred remain unknown. However,
this does not establish that it would be mere conjecture for a jury to conclude that defendant’s
negligence was the cause. In fact, defendant’s alternative causation theories (e.g., dust,
vibration) are purely theoretical and lacking support in the evidentiary record. Although the
particulars of the events causing the overspeed switch to trip may be unknown, the
preponderance of the evidence points to one or more acts of defendant, either singly or in
combination, as the most likely cause: e.g., an employee of defendant manually tripping the
switch, either intentionally or inadvertently; an employee of defendant propping open the door to
the restricted machine room, so as to allow another person, possibly the so-called “mystery man”
who was observed in the room, to trip the switch, either intentionally or inadvertently; or a
negligent act by defendant in the modernization or inspection that had recently occurred. Any or

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any combination of these potential causes derives from the alleged negligence of defendant, and
a jury therefore could reasonably infer from the evidence that it was more likely than not
defendant’s negligence that caused the switch to trip. Id. at 164-165.

        Second, I would add a note of caution, generally, with respect to the utilization of treating
physician testimony to establish causation of injuries. Issues regarding the weight or
admissibility of such testimony may arise where a treating physician offers a medical opinion
linking an injury to a particular cause, based solely on the medical history provided to the
physician by the patient. See e.g., Cooper v Nelson & Co, 211 F3d 1008, 1019-1021 (CA 7,
2000); Perkins v United States, 626 F Supp 2d 587, 592-593 (ED Va, 2009); see also Lynch,
Doctoring the Testimony: Treating Physicians, Rule 26, and the Challenges of Causation
Testimony, 33 Rev Litig 249, 319-325 (2014). As this matter proceeds, therefore, the trial court
should be cognizant of those issues and guard against affording potentially undue expert opinion
status to what essentially may be lay opinion testimony of a patient, albeit conveyed through the
physician. See also MRE 703; People v Fackelman, 489 Mich 515, 534; 802 NW2d 552 (2011)
(expert opinion must be based “exclusively on evidence that has been introduced into evidence in
some way other than through the expert’s hearsay testimony”).



                                                              /s/ Mark T. Boonstra




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