732 N.W.2d 578 (Mich.App. 2007), 257917, Chapin v. A & L Parts, Inc.

Docket Nº:257917.
Citation:732 N.W.2d 578, 274 Mich.App. 122
Opinion Judge:DAVIS, J.
Party Name:Phillip R. CHAPIN and Bernie Mae Chapin, Plaintiffs-Appellees, v. A & L PARTS, INC., Amchem Products, American Standard, Bondex International, Inc., Borg Warner Corporation, Carrier Corporation, Dap, Inc., Dana Corporation, Duro Dyne Corporation, Georgia Pacific Corporation, Goodrich Corporation, Hercules Chemical Company, Indianhead Industries, In
Attorney:Zamler, Mellen & Shiffman, P.C. (by Margaret H. Jensen and Alice A. Buffington) and Charfoos & Christensen, P.C. (by David R. Parker), Southfield, Detroit, for Phillip R. and Bernie M. Chapin. Clark Hill PLC (by John E. Berg, Elizabeth Jollife, and Paul C. Smith), Detroit, for DaimlerChrysler Cor...
Judge Panel:Before: METER, P.J., and O'CONNELL and DAVIS, JJ.
Case Date:January 30, 2007
Court:Court of Appeals of Michigan
 
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732 N.W.2d 578 (Mich.App. 2007)

274 Mich.App. 122

Phillip R. CHAPIN and Bernie Mae Chapin, Plaintiffs-Appellees,

v.

A & L PARTS, INC., Amchem Products, American Standard, Bondex International, Inc., Borg Warner Corporation, Carrier Corporation, Dap, Inc., Dana Corporation, Duro Dyne Corporation, Georgia Pacific Corporation, Goodrich Corporation, Hercules Chemical Company, Indianhead Industries, Inc., Kelsey Hayes Company, McCord Corporation, Metropolitan Life Insurance Company, Parker Hannifin Corporation, Pneumo Abex Corporation, Royal Industries, Inc., AII Acquisition Corporation, Carquest Auto Parts of Pinkney Michigan, Inc., George Fan Service, Inc. & All Equipment Company, Standco Industries, Inc., and Michigan Medical Counsel, Defendants,

and

Daimlerchrysler Corporation, Ford Motor Company, General Motors Corporation, and Honeywell, Inc., formerly known as Allied Signal Corporation, Defendants-Appellants.

No. 257917.

Court of Appeals of Michigan

January 30, 2007

Submitted Jan. 11, 2007, at Detroit.

Page 579

Zamler, Mellen & Shiffman, P.C. (by Margaret H. Jensen and Alice A. Buffington) and Charfoos & Christensen, P.C. (by David R. Parker), Southfield, Detroit, for Phillip R. and Bernie M. Chapin.

Clark Hill PLC (by John E. Berg, Elizabeth Jollife, and Paul C. Smith), Detroit, for DaimlerChrysler Corporation.

Dykema Gossett PLLC (by Ted T. Amsen, Kathleen McCree Lewis, and Laura Sagolla), Detroit, for Ford Motor Company and General Motors Corporation.

Harvey Kruse, P.C. (by Dale R. Burmeister and Stephanie I. Marino), Troy, for Honeywell, Inc.

Crowell Moring (by Michael Goecke), Washington, D.C, for Coalition for Litigation Justice, Inc., and others.

Before: METER, P.J., and O'CONNELL and DAVIS, JJ.

DAVIS, J.

[274 Mich.App. 125] Defendants DaimlerChrysler Corporation, Ford Motor Company, General Motors Corporation, and Honeywell, Inc., appeal by leave granted a stipulated order dismissing this case with prejudice. 1 This appeal arises from the trial court's decision to admit plaintiffs Phillip R. and Bernie M. Chapin's expert's testimony. Defendants filed a motion in limine to exclude that testimony, and the trial court denied that motion. This Court, Wilder, P.J., and Kelly and Murray, JJ., vacated the order denying the motion and remanded for an evidentiary hearing. Unpublished order of the Court of Appeals, entered May 19, 2004 (Docket No. 255415). The trial court again ruled that plaintiffs' expert's testimony was admissible. The matter then went to trial, but after little more than opening argument, the parties entered into a consent judgment that was made subject to defendants' right to challenge the evidentiary ruling on appeal.

This case arises out of plaintiff Phillip R. Chapin's diagnosis with mesothelioma at the age of 60, after having spent 45 years working as an automobile brake mechanic. Part of his job involved grinding brake linings that contained chrysotile asbestos. At issue is whether plaintiffs' expert presented scientifically reliable, and therefore legally admissible, evidence drawing a causal connection between mesothelioma and inhalation of brake-lining dust. We affirm the trial court's ruling in limine.

Page 580

[274 Mich.App. 126] This Court reviews for an abuse of discretion a trial court's determination of the qualifications of a proposed expert witness. Woodard v. Custer, 476 Mich. 545, 557, 719 N.W.2d 842 (2006). This Court likewise reviews for an abuse of discretion a trial court's decision whether to admit evidence, although admission of legally inadmissible evidence is necessarily an abuse of discretion. Craig v. Oakwood Hosp., 471 Mich. 67, 76, 684 N.W.2d 296 (2004). The interpretation of an evidentiary rule is reviewed de novo "in the same manner as the examination of the meaning of a court rule or a statute." Waknin v. Chamberlain, 467 Mich. 329, 332, 653 N.W.2d 176 (2002). Rules of evidence are construed in the same way as statutes. Craig, supra at 78, 684 N.W.2d 296.

Before a trial court may admit any expert testimony, the trial court is required by MRE 702 "to ensure that each aspect of an expert witness's proffered testimony--including the data underlying the expert's theories and the methodology by which the expert draws conclusions from that date--is reliable." Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 779-783, 685 N.W.2d 391 (2004). "While the exercise of this gatekeeper role is within a court's discretion, a trial judge may neither 'abandon' this obligation nor 'perform the function inadequately.' " Id., 780, 685 N.W.2d 391, quoting Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 158-159, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (Scalia, J., concurring). "The plain language of [MCL 600.2955(1) ] establishes the Legislature's intent to assign the trial court the role of determining, pursuant to the Daubert[ v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ] criteria, whether proposed scientific opinion is sufficiently reliable for jury consideration." Greathouse v. Rhodes, 242 Mich.App. 221, 238, 618 N.W.2d 106 (2000), rev'd on other grounds 465 Mich. 885, 636 N.W.2d 138 (2001) (emphasis in original). The United States Supreme[274 Mich.App. 127] Court emphasized that the inquiry is flexible and focused "solely on principles and methodology" rather than ultimate conclusions, and its "overarching subject is the scientific validity--and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission." Daubert, supra at 594-595, 113 S.Ct. 2786.

The specific question presented to us in this appeal is whether the expert opinion testimony given by plaintiffs' expert, Dr. Richard Allen Lemen, was admissible as a matter of law under MRE 702 and MCL 600.2955(1), which govern the inquiry into whether expert evidence is scientifically reliable. 2 I would hold today that the trial court's role as gatekeeper does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes. The facts that an opinion held by a properly qualified expert is not shared by all others in the field or that there exists some conflicting evidence supporting and opposing the opinion do not necessarily render the opinion "unreliable." A trial court does not abuse its discretion by nevertheless

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admitting the expert opinion, as long as the opinion is rationally derived from a sound foundation.

MRE 702 provides:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to [274 Mich.App. 128] understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (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.

And MCL 600.2955(1) provides:

In an action for the death of a person or for injury to a person or property, 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, and shall consider all of the following factors:

(a) Whether the opinion and its basis have been subjected to scientific testing and replication.

(b) Whether the opinion and its basis have been subjected to peer review publication.

(c) The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards.

(d) The known or potential error rate of the opinion and its basis.

(e) The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, "relevant expert community" means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.

(f) Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered.

[274 Mich.App. 129] (Fg) Whether the opinion or methodology is relied upon by experts outside of the context of litigation.

Defendants do not contend that Dr. Lemen's opinion would not "assist the trier of fact" under either the court rule or the statute, a determination that the United States Supreme Court has explained "goes primarily to relevance." Daubert, supra at 591, 113 S.Ct. 2786 Furthermore, whether "the witness has applied the principles and methods reliably to the facts of the case," does not seem applicable to this case. Dr. Lemen explained that he had no knowledge of the specific plaintiff in this matter, and the issue seems to be only whether in the abstract exposure to automobile brake dust is or can be a causal factor of mesothelioma.

When he gave his testimony, Dr. Lemen was a private consultant in the fields of public health, occupational health, and epidemiology; he had retired from the United States Public Health Service, where he held the rank of Assistant...

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