Order                                                                           Michigan Supreme Court
                                                                                      Lansing, Michigan

  July 6, 2012                                                                         Robert P. Young, Jr.,
                                                                                                 Chief Justice

  Rehearing No. 583                                                                    Michael F. Cavanagh
                                                                                             Marilyn Kelly
                                                                                       Stephen J. Markman
                                                                                       Diane M. Hathaway
  142537                                                                                   Mary Beth Kelly
                                                                                           Brian K. Zahra,
                                                                                                      Justices


  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellant,
  v                                                        SC: 142537
                                                           COA: 289343
                                                           Oakland CC: 2008-219989-FH
  MALINI RAO,
           Defendant-Appellee.

  _________________________________________/

           On order of the Court, the motion for rehearing is considered, and it is DENIED.

           YOUNG, C.J. (concurring).

        I concur fully in the denial of defendant’s motion for rehearing, but write briefly to
  respond to defendant’s claim that the proffered evidence was “exculpatory,” leading to
  the conclusion that “there has been a wrongful conviction in this case.”

        As indicated in the trial court’s opinion and order denying defendant’s motion for
  a new trial, the “newly discovered evidence” at issue was exhibits J, 1 K, 2 and L. 3 While
  the actual x-ray films were submitted as an exhibit, 4 it is patently obvious that the proper
  interpretation of radiological films, and the clinical significance of that interpretation,
  lay well beyond the understanding and competence of an untrained layman, thus
  necessitating the use of expert medical opinion 5 to support defendant’s claim of
  exculpatory evidence.

  1
      Exhibit J was the radiology report of Dr. Gibson dated May 6, 2009.
  2
      Exhibit K consisted of the x-ray films of the victim dated May 6, 2009.
  3
     Exhibit L was the supplemental report of Dr. Rothfeder dated June 11, 2009. Dr.
  Rothfeder was one of several medical experts who testified for the defense at defendant’s
  trial.
  4
      See MRE 703.
  5
    See MRE 702 (stating that an expert witness may testify “[i]f 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”) (emphasis added); People v
  Smith, 425 Mich 98, 106 (1986) (stating that whether the use of an expert is proper “is to
                                                                                         2


      However, the Court of Appeals specifically disavowed that exhibit L, the
supplemental report of Dr. Rothfeder, provided the basis for reversing the trial court’s
order denying defendant’s motion for a new trial. The Court of Appeals stated that “the
newly discovered evidence consists of the condition of [RS’s] ribs as revealed in the
2009 skeletal survey, not Rothfeder’s report.” 6

       This leaves exhibit J, the radiology report of Dr. Gibson, as the sole basis for the
Court of Appeals’ conclusion that the 2009 skeletal survey “shatter[ed] the scientific
cornerstone of the prosecution’s evidence that the rib abnormalities were consistent only
with fractures, and not an underlying bone abnormality.” 7 However, this conclusion is
not remotely consistent with Dr. Gibson’s report. The report states that on May 6, 2009
(18 months after the child was removed from the home and 10 months after defendant’s
trial concluded), the victim had some irregularities and abnormalities on several of her
ribs “which may be due to old fractures.” The report provides no basis to conclude that
the “irregularities” and “abnormalities” were indicative of metabolic bone disease.
Moreover, when Dr. Rothfeder’s supplemental report indicated that the 2009 skeletal
survey suggested metabolic bone disease, Dr. Gibson’s follow-up correspondence was
blunt and clear, removing any lingering doubt regarding his medical opinion: “The
changes in the ribs described in my report could be accounted for on the basis of past
trauma. I did not, in my opinion, see any evidence on the films to suggest metabolic
bone disease.”

      Thus, contrary to the assertions of defendant and the conclusion of the Court of
Appeals, the evidence relied on by defendant was not exculpatory. I fully concur in the
denial of defendant’s motion for rehearing.




be determined on the basis of assisting the trier” and is a “common sense inquiry” that
considers “whether the untrained layman would be qualified to determine intelligently
and to the best possible degree the particular issue” without the expert’s assistance)
(citation and quotation marks omitted).
6
 People v Rao, unpublished opinion per curiam of the Court of Appeals, issued
December 7, 2010 (Docket No. 289343), p 9 (emphasis added).
7
    Id. at 10.
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MARILYN KELLY and HATHAWAY, JJ., would grant rehearing.




                I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
          foregoing is a true and complete copy of the order entered at the direction of the Court.
                July 6, 2012                        _________________________________________
t0703                                                               Clerk
