Downie v. Kent Products, Inc.

• Citation: 362 N.W.2d 605,420 Mich. 197
• Decision Date: 14 January 1985
• Docket Number: No. 4,Docket No. 71735,4
• Parties: , 53 USLW 2374, Prod.Liab.Rep. (CCH) P 10,709 Marjorie Phyllis DOWNIE, Plaintiff-Appellant, v. KENT PRODUCTS, INC., and the Home Indemnity Company, Defendants-Cross- Appellees, and E.W. Bliss Company, Gulf and Western Industry, Inc., and Gulf and Western Industrial Products Company, Defendants-Appellees-Cross-Appellants, and General Motors Corporation, Defendant. Calendar
• Court: Michigan Supreme Court

Page 605

362 N.W.2d 605

420 Mich. 197, 53 USLW 2374,

Prod.Liab.Rep. (CCH) P 10,709

Marjorie Phyllis DOWNIE, Plaintiff-Appellant, v. KENT PRODUCTS, INC., and the Home Indemnity Company, Defendants-Cross- Appellees, and E.W. Bliss Company, Gulf and Western Industry, Inc., and

Gulf and Western Industrial Products Company,

Defendants-Appellees-Cross-Appellants,

and

General Motors Corporation, Defendant.

Docket No. 71735.

Calendar No. 4.

Supreme Court of Michigan.

Argued Oct. 2, 1984.

Decided Dec. 28, 1984.

Released for Publication Jan. 14, 1985.

McCroskey, Feldman, Cochrane & Brock, by J. Walter Brock, Muskegon for plaintiff.

Rhoades, McKee & Boer, Michael J. Roberts, Gregory A. Block, Grand Rapids, for defendants-appellees.

Cholette, Perkins & Buchanan, Edward D. Wells, Kenneth L. Block, Grand Rapids, for defendants-appellees-cross-appellants.

BRICKLEY, Justice.

This is an appeal of a products liability action arising out of a work-related injury. In addition to her pursuit of workers' compensation benefits from her employer, plaintiff filed this suit against the manufacturer of the machine on which she was injured.

This case poses three distinct questions for our consideration. The first is whether the courts below erred in denying defendant E.W. Bliss' motion for a directed verdict premised on the assertion that plaintiff had failed to present sufficient evidence to demonstrate the existence of a prima facie case of negligence due to a failure to warn. The second issue is whether evidence of warning labels, installed on defendants' presses manufactured after the date of sale of this press, but before the date of the plaintiff's injury, should have been excluded under MRE 407 or M.C.L. Sec. 600.2946(3); M.S.A. Sec. 27A.2946(3). The third issue involves three related questions: whether it was proper for the jury to be allowed to apply comparative negligence principles and apportion the fault between the defendant and the employer, who was not a party to the suit; whether the employer could be added as a party after the verdict had been rendered; and whether it is permissible under M.C.L. Sec. 418.827(5); M.S.A. Sec. 17.237(827)(5), to reduce the employer's workers' compensation lien by the amount determined by the jury to be reflective of the employer's responsibility for plaintiff's injuries.

We agree with the Court of Appeals on the first and third issues; however, we disagree with the reasoning and result of the Court of Appeals on the second issue. Defendant Bliss' motion for directed verdict on the failure to warn count was correctly denied. However, evidence of warning tags used by Bliss subsequent to the sale in this case but prior to plaintiff's injury was properly admitted. Comparative negligence does not apply where contribution is sought from plaintiff's employer; therefore, the apportionment of negligence by the jury, the amended complaint, and the reduction of the lien were all in error.

I

Plaintiff Marjorie Downie filed this products liability action for injuries sustained December 10, 1975, in the course of her employment with Kent Products, Inc. ¹ The injury occurred while plaintiff was working on a power press manufactured by E.W. Bliss Company and purchased by Kent from Bliss in 1961. A portion of plaintiff's hand was amputated when the press unexpectedly recycled while she was hand-loading it. The recycling was apparently due to the malfunctioning of the clutch latch assembly which controls the stroking motion of the press. The part of this assembly which made the press a single-stroke machine, rather than one which would continuously recycle, broke at the time of plaintiff's injury.

Plaintiff was granted workers' compensation benefits for the injury from Kent and its workers' compensation liability insurer, The Home Indemnity Company. At the same time, she instituted this action against Bliss pursuant to M.C.L. Sec. 418.827; M.S.A. Sec. 17.237(827).

During the course of trial, plaintiff advanced several theories of recovery, ² but only the issues of implied warranty and negligence arising from a duty to warn were presented to the jury. ³ The jury received a special verdict form on which it was permitted to apportion the liability among plaintiff, Bliss, and Kent. Kent was not a party to the litigation at that time. The jury found no breach of implied warranty but found that defendant's negligence in failing to warn was a proximate cause of the plaintiff's injuries. The jury awarded $121,000, attributing 45% of the negligence to Kent and 55% to Bliss.

Subsequently, the trial court permitted plaintiff to amend her complaint, adding Kent and Home Indemnity as defendants. Kent and Home Indemnity filed a counterclaim and raised affirmative defenses to the amended complaint. However, the court ordered that the workers' compensation lien and subrogation rights of Kent and Home Indemnity would be limited according to the special verdict, allowing no reimbursement of workers' compensation benefits paid or payable until those payments exceeded the amount of Kent's portion of the liability ($54,450).

Kent and Home Indemnity appealed the trial court's order allowing amendment of the complaint after the verdict. Bliss cross-appealed, alleging several errors related to the court's denial of Bliss' directed verdict motion regarding the duty to warn. Plaintiff also cross-appealed on the issue of whether Kent's negligence was properly considered by the jury.

After a lengthy analysis of the evidence presented to the trial court, the Court of Appeals concluded that denial of Bliss' motion for a directed verdict was correct in that plaintiff had made out a prima facie cause of action for negligence on a failure to warn theory. However, the Court of Appeals reversed and remanded the case for a new trial because of the trial court's improper admission of evidence regarding the warning tags used by Bliss subsequent to the sale of the press, and because the jury's consideration of the employer's negligence was improper under the exclusive remedy and reimbursement provisions of the Worker's Disability Compensation Act, M.C.L. Sec. 418.131, Sec. 418.827(5); M.S.A. Sec. 17.237(131), Sec. 17.237(827)(5).

Plaintiff's application for rehearing in the Court of Appeals was denied on May 10, 1983. Plaintiff applied for leave to appeal in this Court, addressing only the evidentiary issue. Bliss cross-appealed on the directed verdict and comparative negligence issues, and answered in opposition to plaintiff's appeal. Kent answered Bliss' cross-appeal on the comparative negligence issue only. We granted the application and cross-application for leave to appeal. 418 Mich. 948 (1984).

II

In its cross-appeal, Bliss maintains that the Court of Appeals erred in upholding the trial court's denial of Bliss' motion for a directed verdict, especially in light of the trial judge's comments to the effect that he was denying the motion only to avoid a remand, ⁴ and in light of the Court of Appeals misquotation of those comments. ⁵ Bliss also alleges error in the Court of Appeals reliance upon the testimony of plaintiff's expert--testimony which embraced an ultimate fact or legal conclusion. ⁶

The Court of Appeals devoted six pages of its published opinion to a thorough analysis of the facts relevant to plaintiff's cause of action for negligence based on a duty to warn. The Court of Appeals concluded that, even though the evidence was conflicting, it was sufficient to establish a prima facie case that Bliss' failure to warn was a proximate cause of plaintiff's injuries. In spite of the trial judge's comments to the contrary, and the typographical mistake in the Court of Appeals opinion, we find no error in the Court of Appeals analysis which would require reversal.

Regarding Bliss' claim that the Court of Appeals impermissibly relied upon testimony of an expert witness which embraced an ultimate fact or conclusion of law, we agree with the Court of Appeals that there was no error in its admission, but not only for the reason that no specific objection was made at trial. It is true that defendant never made a specific objection to the testimony on the grounds now asserted, see MRE 103(a)(1); People v. Worrell, 111 Mich.App. 27, 38-39, 314 N.W.2d 516 (1981); however, even if the objection had been made at trial there was no basis on the record for sustaining it.

"Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." MRE 704; FRE 704. See People v. Robinson, 417 Mich. 231, 331 N.W.2d 226 (1983); Ruddock v. Lodise, 413 Mich. 499, 320 N.W.2d 663 (1982).

That rule is consistent with prior Michigan common law. See Committee Note, MRE 704.

"The function of the expert witness is to supply expert testimony. This includes, when proper foundation is laid, opinion evidence. This opinion evidence may even embrace ultimate issues of fact. * * *

"What the opinion of an expert does not yet extend to is the creation of new legal definitions and standards, and legal conclusions." In re Powers Estate, 375 Mich. 150, 172, 134 N.W.2d 148 (1965); Brown v. Unit Products Corp., 105 Mich.App. 141, 152, 306 N.W.2d 425 (1981).

The project engineer's statement to which defendant Bliss apparently objects ⁷ was in response to the question,

"Is there any way to design [a safety stop pin and nut] so if it failed, it wouldn't cause an unexpected cycle of the press?"

Mr. Lewis responded,

"Well, my philosophy has been, as a professional philosopher, that anything mechanical will wear, and anything mechanical will fatigue. And therefore, I subscribe to the philosophy of no hands in the press."

We find nothing objectionable about this statement. Likewise, we do not find that subsequent statements by Mr. Lewis in any way attempted to create a new legal definition or standard. For example, although it embraced an ultimate issue,...