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139860 - Robelin v Spectrum Health

Raquel Robelin, Conservator, for Teija McCall,
Mark R. Granzotto
(Appeal from Ct of Appeals)
(Kent – Johnston, D.)
Spectrum Health Hospitals, d/b/a Spectrum Health-East Campus, John Hartmann, M.D., and Advantage Health Physicians, P.C.,
Jon D. Vander Ploeg


​Within 24 hours of her birth, Teija McCall suffered a stroke; she has serious neurological impairments as a result. Her mother, Raquel Robelin, sued Spectrum Health Hospitals, and the physician who attended Robelin during labor and delivery, for medical malpractice. Dr. Ronald Gabriel, a Los Angeles pediatric neurologist, is one of Robelin’s expert witnesses. He testified that hypoxia, as indicated by a late deceleration pattern in the fetal heart rate, is an indicator of stroke. Gabriel asserted that the defendants failed to properly monitor the fetal heart rate and, as a result, failed to take action to prevent the infant’s stroke. While it was not possible to be completely certain about what had happened to the infant, Gabriel said, “in the “absence of an alternative explanation,” the “most likely explanation is thrombus formation due to decreased velocity of internal carotid blood flow due to the abnormal changes in fetal heart rate.” None of the events or evidence during labor could really predict what would happen, he added, but they were of some value in reconstructing what might have happened, and in excluding “other potential causes.”

After taking Gabriel’s deposition, the defendants filed a motion to strike him from Robelin’s witness list. They contended that Gabriel’s theories about the cause of the infant’s stroke were not accepted in the scientific community, and that his opinions were not supported by sufficient facts and data. Following a two-day evidentiary hearing, the trial court denied the defendants’ motion. Although Gabriel’s testimony was probably not the majority position in the field, the court said, his theories had a “foundation in fact and in science” and were based, at least to a reasonable degree, upon “demonstrable data.” That was sufficient, the trial court ruled, to allow Gabriel’s opinions to be presented to a jury.

The defendants appealed, but the Court of Appeals affirmed the trial court’s ruling in an unpublished per curiam opinion. The trial court did not abuse its discretion in concluding that Gabriel’s testimony was admissible, the Court of Appeals said, citing Michigan Rule of Evidence 702 and MCL 600.2955. Under MRE 702, a court can admit expert testimony if the court determines that “(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. “ MCL 600.2955 provides in part that … a scientific opinion rendered by an otherwise qualified expert is not admissible unless the court determines that the opinion is reliable and will assist the trier of fact. In making that determination, the court shall examine the opinion and the basis for the opinion, which basis includes the facts, technique, methodology, and reasoning relied on by the expert….” The trial court had properly applied both the evidence rule and the statute, the Court of Appeals said. “[N]ovelty or a lack of general acceptance is not necessarily fatal to admission of scientific evidence,” the appellate panel stated. The Court of Appeals continued, “Defendants argue that it is impossible to prospectively predict a stroke. …. Dr. Gabriel actually testified that he used “the totality of the database” to retrospectively analyze the available medical information and thus determine the most probable time of and reason for that stroke’s occurrence, using process of elimination.” The defendants appeal.