                              STATE OF MICHIGAN

                              COURT OF APPEALS



JAMES OEGEMA, as conservator for ELEANOR                          UNPUBLISHED
OEGEMA, a minor,                                                  November 13, 2014

                 Plaintiff-Appellant/Cross-Appellee,

v                                                                 No. 316499
                                                                  Ingham Circuit Court
PATRICIA BELL, D.O. and ALLIANCE                                  LC No. 04-000280-NH
OBSTETRICS AND GYNECOLOGY, P.C.,

                 Defendants-Appellees/Cross-
                 Appellants,
and

EDWARD W. SPARROW HOSPITAL
ASSOCIATION,

                 Defendant.



Before: OWENS, P.J., and MARKEY and SERVITTO, JJ.

PER CURIAM.

        Plaintiff, James Oegema, as conservator for Eleanor Oegema, a minor, appeals as of right
the trial court’s May 13, 2013 order, which entered a final judgment of no cause of action in
favor of defendants, Patricia Bell, D.O. and Alliance Obstetrics and Gynecology, P.C.1 We
affirm.

        Dr. Patricia Bell was employed as an obstetrician by defendant Alliance Obstetrics and
Gynecology, P.C. in 1998 when she assisted Melanee Oegema in the preparation for and birth of
her first child, Eleanor. During the delivery, Eleanor’s shoulder became impacted on Melanee’s
pelvic bone and she suffered a shoulder dystocia. Dr. Bell was called to the delivery room where
she witnessed the shoulder dystocia, which was evident when Eleanor’s head retracted after
Melanee pushed on a contraction. The shoulder dystocia can be relieved by certain maneuvers,


1
    Defendant, Sparrow Hospital, is not party to this appeal.


                                                  -1-
such as the McRobert’s maneuver, suprapubic pressure, or the corkscrew maneuver, but, in this
case, plaintiff alleged that these maneuvers were not performed and that Dr. Bell instead applied
excessive traction to Eleanor’s head and neck, resulting in a permanent and severe injury to the
child’s brachial plexus nerves, which disabled her right arm.

        The jury returned a verdict of no cause of action, finding that none of the defendants were
professionally negligent, after which, the trial court entered a judgment of no cause of action on
October 9, 2008. Plaintiff moved for a new trial, arguing, among other things, that the verdict
was against the great weight of the evidence. The trial court granted plaintiff’s motion, finding
that, in light of the other evidence presented, Dr. Bell’s testimony regarding whether she
performed the McRobert’s maneuver was incredible.2 Defendants appealed by leave granted3
the trial court’s order granting a new trial. This Court concluded that the trial court abused its
discretion by improperly acting as a thirteenth juror when it substituted its judgment for that of
the jury regarding Dr. Bell’s credibility. Oegema v Bell, unpublished opinion per curiam of the
Court of Appeals, issued April 30, 2013 (Docket No. 298114). Therefore, this Court “reverse[d]
and remand[ed] for reinstatement of the jury verdict.” Id. At the direction of this Court, the trial
court reinstated the jury verdict and entered a final judgment of no cause of action in favor of
defendants. Plaintiff then filed a claim of appeal, initiating the present appeal.

         As an initial matter, we reject defendants’ argument that this Court lacks jurisdiction over
this appeal based on the principles of res judicata. Defendants correctly note that Vanderwall v
Midkiff, 186 Mich App 191, 197-198; 463 NW2d 219 (1990), held that where a party could have
raised an issue in a previous appeal by way of cross-appeal, and this Court reversed and
remanded for reinstatement of the original judgment, the failure to raise the issue barred the party
under res judicata from raising the issue in a new appeal filed after the reinstated judgment.
However, in the previous appeal, defendants applied for leave to appeal an interlocutory order
granting a new trial. That order set aside the jury verdict and the October 9, 2008 final judgment
in favor of defendants. Thus, defendants cannot assert res judicata where they cannot establish
that a final judgment was entered. Andrews v Donnelly, 220 Mich App 206, 209; 559 NW2d 68
(1996).

       On appeal, plaintiff first argues that the trial court abused its discretion by denying his
motion in limine to exclude evidence regarding consequences of waiting too long to deliver a
child with a shoulder dystocia because it was irrelevant and prejudicial. We disagree. We
review for an abuse of discretion a trial court’s decision to grant or deny a motion in limine.
People v Vansickle, 303 Mich App 111, 117; 842 NW2d 289 (2013). See also Bartlett v Sinai
Hosp of Detroit, 149 Mich App 412, 416; 385 NW2d 801 (1986). “An abuse of discretion



2
  The trial court denied plaintiff’s motion on the alternative grounds cited by plaintiff that there
was evidence admitted that was unfairly prejudicial and that defense counsel’s remarks during
closing arguments were improper.
3
  Oegema v Bell, unpublished order of the Court of Appeals, entered September 29, 2010
(Docket No. 298114).


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occurs when the decision results in an outcome falling outside the range of principled outcomes.”
Zaremba Equip, Inc v Harco Nat Ins Co, 302 Mich App 7, 21; 837 NW2d 686 (2013).

       To be admissible, evidence must be relevant. MRE 402. “ ‘Relevant evidence’ ” means
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” MRE 401. Relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” MRE 403.

        Plaintiff sought to exclude evidence regarding hypoxia, severe neurological injury, and
cerebral palsy, which can occur when a shoulder dystocia is not resolved within a certain number
of minutes.4 Plaintiff argued that there was no evidence whatsoever that the child was in fetal
distress or at risk of oxygen deprivation, and thus, the evidence was irrelevant, not probative, and
unfairly prejudicial. However, as the trial court correctly concluded, the evidence was necessary
to explain why immediate delivery of Eleanor was necessary once she presented with a shoulder
dystocia. The evidence was particularly relevant in light of plaintiff’s theory that Dr. Bell was
negligent because she delivered Eleanor too quickly, without performing any of the required
maneuvers.

        Contrary to plaintiff’s argument, there is no indication that the probative value of the
evidence was substantially outweighed by the danger of unfair prejudice. The evidence certainly
does not cast Dr. Bell in a heroic light, as plaintiff contends. Rather, the evidence explains why a
doctor would want to resolve a shoulder dystocia as expeditiously as possible. It was necessary
for the jury to hear this evidence to determine whether the traction Dr. Bell applied was
necessary under the circumstances given the risks associated if the child was not delivered
quickly, and if so, whether it was negligent. Even Dr. Wolf, one of the experts, testified that if a
brachial plexus injury occurs because of traction during a shoulder dystocia event, it is not
malpractice, and that 25% of children that are delivered with a shoulder dystocia suffer injury.
Thus, contrary to plaintiff’s argument, introduction of the evidence did not necessarily mislead
the jury to believe that a damaged arm outweighed the risk of more severe injuries that could
have resulted. Rather, the evidence puts into perspective a doctor’s thoughts and actions when
faced with that type of obstetrical emergency. Therefore, the trial court did not abuse its
discretion by denying plaintiff’s motion in limine.

       Plaintiff next argues that the trial court erred by declining to grant plaintiff a new trial
based on defense counsel’s remarks during closing argument. We disagree. We review for an
abuse of discretion the trial court’s decision to deny plaintiff a new trial on this ground.
Zaremba Equip, Inc, 302 Mich App at 21. Additionally, this Court reviews de novo claims of
counsel misconduct to determine whether a party was denied a fair trial. Moody v Home Owners
Ins Co, 304 Mich App 415, 445; 849 NW2d 31 (2014), citing Reetz v Kinsman Marine Transit
Co, 416 Mich 97, 100; 330 NW2d 638 (1982).


4
    Expert testimony placed the range of minutes from “a few” to seven or nine minutes.


                                                -3-
        Plaintiff argues that the following remarks made during closing argument cast Dr. Bell as
a hero and chastised the parents for being litigious.

               Dr. Bell did what she was trained to do, and that was to deliver a shoulder
       dystocia infant alive, with no brain damage, in the most expeditious fashion
       possible under the circumstances. And, what would happen if she didn’t? What
       would happen if Dr. Bell said, you know, I think we’ve got two more minutes,
       let’s spend some more time trying to get Ellie out. Two minutes passes, and they
       do get Ellie out, and Ellie does have brain damage?

               Do you think that we would be here, in the same courtroom with the same
       eight of you sitting there, and Mr. Ash would be saying, why did you wait so
       long, Dr. Bell? Why didn’t you just break a clavicle? Why didn’t you just use a
       little more force and get Ellie born, and maybe she’d have a brachial plexus
       injury, but she wouldn’t have brain damage?

Following an objection by plaintiff’s counsel that the trial court sustained, defense counsel
proceeded to argue why a shoulder dystocia is an obstetrical emergency. In doing so, defense
counsel stated,

       Now, Dr. Bell delivered Ellie, and Ellie was subsequently diagnosed to have a
       brachial plexus injury. No diagnosis of any other problem. No neurologic deficit,
       no cognitive deficit, no other problem. Dr. Wolf was asked, when you deliver—
       when you’re confronted with this obstetrical emergency, and you deliver this
       youngster, if this youngster has a brachial plexus injury, does that automatically
       mean the doctor is negligent? And, he said no.

Defense counsel continued to argue that the goal with shoulder dystocia is to deliver the baby
alive, without brain injury, and because Dr. Bell did just that, she could not be negligent.
Defense counsel then stated,

                However, as her attorney, it’s my obligation and my privilege to address
       all of the different issues, and one of the issues that has to be discussed is the issue
       of damages. Nobody, including myself, is standing up in front of you and telling
       that Ellie didn’t experience an injury to her right arm at the time of her birth.
       Some may look at that and say, what a disaster. Others may look at it and say,
       Thank God that’s what it was.

        When analyzing claims of counsel misconduct, this Court must first determine whether
an attorney’s comments were improper, i.e., an error. Hunt v Freeman, 217 Mich App 92, 95;
550 NW2d 817 (1996). If the comments were error, this Court must then determine whether the
error requires reversal. Id.

       An attorney’s comments usually will not be cause for reversal unless they indicate
       a deliberate course of conduct aimed at preventing a fair and impartial trial.
       Reversal is required only where the prejudicial statements of an attorney reflect a
       studied purpose to inflame or prejudice a jury or deflect the jury’s attention from
       the issues involved. [Id. (citations omitted).]
                                                 -4-
        We conclude that defense counsel’s comments were not improper. When read in context,
the statements were commenting on the evidence introduced at trial and supported defendants’
theory that Dr. Bell did not act negligently when she was faced with the obstetrical emergency
because she acted promptly to prevent Eleanor from suffering the severe consequences that can
result with shoulder dystocia when delivery takes more than a few minutes. Defense counsel
was attempting to argue that Dr. Bell delivered Eleanor as she was trained to do when faced with
such an obstetrical emergency, and that was to deliver Eleanor quickly to prevent brain damage.

         Even if defense counsel’s comments were improper, they would not require reversal.
These comments do not indicate a “deliberate course of conduct aimed at preventing a fair and
impartial trial.” Hunt, 217 Mich App at 95. Rather, the comments were defense counsel’s
attempt to argue the evidence and defendants’ theory of the case. There is no indication that the
comments “reflect a studied purpose to inflame or prejudice a jury,” id., and plaintiff has not
shown how they have a “controlling influence on the verdict.” Ellsworth v Hotel Corp of
America, 236 Mich App 185, 192; 600 NW2d 129 (1999). Further, the trial court instructed the
jury the attorneys’ arguments were not evidence, which is sufficient to cure the alleged
misconduct. Moody, 304 Mich App at 446 (“Proper instructions to the jury will cure most, but
not all, misconduct by counsel.”). Plaintiff was not entitled to a new trial on this ground.

        Finally, defendants, on cross-appeal, argue that the trial court erred by granting plaintiff a
directed verdict on causation. However, our resolution of the issues raised by plaintiff renders
this issue moot and we need not address it.

       Affirmed.




                                                              /s/ Donald S. Owens
                                                              /s/ Jane E. Markey
                                                              /s/ Deborah A. Servitto




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