Van Buren v Panther Crankshafts, unpublished, per curium opinion, COA #275435, released March 6, 2008
On May 12, 2003, the Plaintiff, in the course of her employment with the Defendant, slipped and fell on an oily substance on the floor. She was about 25 weeks pregnant.

On June 7, 2003, a placental abruption was diagnosed and the child was delivered by Cesarean section. At birth, he suffered from numerous cardiovascular, neurological, and respiratory ailments, deficiencies, and problems, including brain damage. He died on August 10, 2003.

The Plaintiff’s medical expert testified that when the Plaintiff fell, a small portion of her placenta separated from her uterus, the fall set in motion a chain of events leading to the child’s premature birth and death, and the doctor testified that if he had not been born prematurely, he would not have died.

The Defendant-employer filed a Motion for Summary Disposition, claiming that all the claims including that of the Plaintiff as well as the claim brought on the behalf of her deceased child’s estate was barred by the exclusive remedy provision of the Workers’ Disability Compensation Act. The trial Court held that the mother’s individual claim was barred by the Workers’ Disability Compensation Act. However, the trial Court allowed the claim of the estate of the child to proceed.

In the first appeal, the Court of Appeals held that the claims of the estate were barred by the Workers’ Disability Compensation Act, but it remanded the matter to the trial Court to allow the Plaintiff the opportunity to amend the pleadings to allege a theory that did not fall within the Workers’ Disability Compensation Act.

The amended complaint alleged that while the child was in utero, the child slipped and fell on the factory floor resulting in severe injuries that ultimately resulted in his death. On remand, the trial Court held that the child’s claim arose only from the injury to the mother and that injury to the mother was barred by the Workers’ Disability Compensation Act.

On appeal, the Second Panel of the Court of Appeals looked at MCL 600.2922a, which pertains to actions brought on behalf of fetuses or children born with fetal injuries, MCL 418.131 addressing the exclusive remedy provision. The Court of Appeals instructed that the two statutes can be interpreted harmoniously to provide a cause of action for negligent acts causing miscarriages, still births, injuries or death to an embryo or fetus, where the conduct occurs in the context of the employer-employee relationship, such that the Workers’ Disability Compensation Act is implicated, which limits any right of recovery to benefits under the Workers’ Disability Compensation Act.

Because the original Panel of the Court of Appeals ruled the allegations made by the child’s estate were based on injuries that flowed from the workplace injury to the mother, the law of the case doctrine required the Second Panel find as such and the Second Panel dismissed the claims made by the child’s estate. However, the Second Panel of the Court of Appeals advised that if it had not been constrained by the original Panel’s findings that the child’s injuries were based on injuries that flowed directly from the workplace injury to the mother, the Second Panel would have permitted the action of the child’s estate to proceed based on case law that has developed, which support the proposition that the exclusive remedy provision and workers’ compensation statutes do not bar a child from bringing an action for his or her own physical injuries sustained either in utero or on premature birth that resulted from work-related negligence of the mother’s employer towards the child’s mother, regardless of the whether the mother was also injured or whether the child’s physical injuries flowed from injuries to the mother.