Estate of Green v. St. Clair County Road Com'n

Decision Date28 April 1989
Docket NumberDocket No. 109282
Citation175 Mich.App. 478,438 N.W.2d 630
PartiesESTATE OF Daniel David GREEN, by Mary Anne Green as Personal Representative of the Estate, and as Next Friend of minor children, Brian Green, Rachel Green, Megan Green and Heather Green, Plaintiff-Appellee, v. ST. CLAIR COUNTY ROAD COMMISSION, a Michigan municipal corporation, Defendant-Appellant, and Daniel Robert Lane, Tom Crocker, d/b/a Little Beverage Store, John Doe Party Store, James Currier and Pat Currier, Defendants.
CourtCourt of Appeal of Michigan — District of US

Flanigan, Monaghan & Traver by Daniel A. Traver, Port Huron, for plaintiff-appellee.

Highland & Currier, P.C. by R. Michael John, Southfield, for the St. Clair County Road Com'n.

Before SULLIVAN, P.J., and WAHLS and CAVANAGH, JJ.

WAHLS, Judge.

In this wrongful death action, defendant St. Clair County Road Commission (hereinafter defendant) appeals from a November 2, 1987, order of the St. Clair Circuit Court granting the motion of plaintiff, the estate of decedent Daniel David Green, for a protective order issued pursuant to MCR 2.302(C) regarding evidence relating to the alcohol content of decedent's blood as determined during the course of a post-mortem analysis conducted in accordance with a provision in the implied consent statute, M.C.L. Sec. 257.625a(10); M.S.A. Sec. 9.2325(1)(10). On appeal, defendant contends that the circuit court erred in granting plaintiff's motion for a protective order, thereby precluding at trial the admission into evidence of information revealing decedent's blood alcohol content at the time of his fatal automobile accident, because that information was not prohibited by the implied consent statute, by equal protection concerns, or by the physician-patient privilege. We agree with defendant and, accordingly, reverse the order of the circuit court and remand this case for further proceedings consistent with this opinion.

The record reveals that on September 7, 1986, Daniel David Green, then thirty years old, was killed in an automobile accident which occurred at the intersection of Indian Trail and Meisner Roads in China Township, St. Clair County. Apparently, Mr. Green had just left a wedding reception at the nearby Perch Point Conservation Club. The driver of the other car involved in the incident, Daniel Robert Lane, had shortly before the collision left a rock concert sponsored by Pat Currier. Mr. Green was killed in the collision, and his body was examined by the county medical examiner, Clemens M. Kopp, M.D. Dr. Kopp's autopsy report noted that the body fluids he had sent for analysis to the Toxicology Laboratory Center in Lansing disclosed that, at the time of death, decedent's blood alcohol content was 0.12 percent and his urine alcohol level was 0.16 percent. Dr. Kopp gave a copy of his autopsy report to defendant's insurer, which, in turn, made the report available to defendant's attorneys. In addition, the body-fluid test results were discussed by defendant and laboratory personnel.

The present wrongful death action was filed on September 29, 1986, by plaintiff, the estate of Daniel David Green, by Mr. Green's widow, Mary Anne Green, in her capacity as personal representative of the estate and as next friend of the decedent's four minor children, against Daniel Robert Lane, the driver of the other car involved in the incident; Tom Crocker, doing business as Little Beverage Store, and John Doe Party Store, licensed retailers of alcoholic beverages which allegedly furnished Lane with alcoholic beverages in violation of the dramshop act, M.C.L. Sec. 436.22 et seq.; M.S.A. Sec. 18.993 et seq.; James Currier, who was a passenger in Lane's car and who allegedly contributed to the cause of the collision by consuming alcoholic liquor in Lane's car; and Pat Currier, James Currier's uncle, who sponsored the rock concert attended by Lane and who allegedly contributed to the cause of the collision by negligently permitting minors, such as Lane, to unlawfully consume alcoholic beverages while attending the rock concert.

On November 2, 1987, the St. Clair Circuit Court granted plaintiff's motion for a protective order. That order precluded the introduction of evidence at trial revealing the blood alcohol content of Mr. Green at the time of his death. Defendants St. Clair County Road Commission, James Currier and Pat Currier filed in this Court an application for leave to appeal from the circuit court's order, which was denied on December 27, 1987. Defendant then filed an application for leave to appeal in the Supreme Court, which, on May 23, 1988--the day before trial was scheduled to begin in this case--issued an order granting defendant's motion for immediate consideration and staying proceedings in the circuit court. On June 1, 1988, the Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted and specified that "[t]he stay of proceedings previously ordered by this Court remains in effect until further order of the Court of Appeals." Green Estate v. St. Clair Co. Road Comm, 430 Mich. 887, 423 N.W.2d 910 (1988). 1

In granting plaintiff's motion for a protective order regarding Mr. Green's blood alcohol content, the trial court stated:

"I am satisfied that section ten [MCL 257.625a(10); MSA 9.2325(1)(10) ] overrules Hubenschmidt. [Hubenschmidt v. Shears, 403 Mich 486; 270 NW2d 2 (1978) ]. What bothers me about a situation of this kind is that if defense counsel are correct in their interpretation, then the decedent would have lesser or fewer rights than one who had survived. If the right is to come from the implied consent statute, then having had Hubenschmidt in mind, it's the apparent intention of the legislature, through section ten, to preclude this evidence.

"I also feel that there is an equal protection argument, as well as the privilege arguments that do apply.

"In any event, the motion for protective order on this issue is granted."

On appeal, defendant first argues that the trial court erred in ruling that Sec. 625a of the implied consent statute, M.C.L. Sec. 257.625a; M.S.A. Sec. 9.2325(1), prohibits the admission into evidence of information relating to Mr. Green's blood alcohol content. Defendant emphasizes that Sec. 625a does not limit the admissibility of test results in civil cases regarding a decedent's blood alcohol content, but merely permits such admissibility in certain enumerated criminal prosecutions. Moreover, defendant asserts that the admissibility of such test results in civil cases regarding a decedent driver's blood alcohol content is provided for in Hubenschmidt v. Shears, 403 Mich. 486, 270 N.W.2d 2 (1978). Section 625a of the implied consent statute presently provides in pertinent part:

"(1) The amount of alcohol or presence of controlled substances or both in the driver's blood at the time alleged as shown by chemical analysis of the person's blood, urine, or breath shall be admissible into evidence in a criminal prosecution for any of the following:

"(a) A violation of section 625(1), (2), or (3), or 625b, or of a local ordinance substantially corresponding to section 625(1), (2), or (3), or 625b.

"(b) Felonious driving, negligent homicide, or manslaughter resulting from the operation of a motor vehicle while the driver is alleged to have been impaired by or under the influence of intoxicating liquor or a controlled substance or a combination of intoxicating liquor and a controlled substance, or to have had a blood alcohol content of 0.10% or more by weight of alcohol.

* * * * * *

"(10) If after a highway accident the driver of a vehicle involved in the accident is deceased, a sample of the decedent's blood shall be withdrawn in a manner directed by the medical examiner for the purpose of determining blood alcohol content or presence of a controlled substance or both."

In Hubenschmidt, supra, p. 487, 270 N.W.2d 2, the Supreme Court, regarding the two cases before it consolidated on appeal, stated:

"The issue to be decided in these two cases is whether the results of a test for alcohol content of a blood sample taken from a dead body may be admitted as evidence in a wrongful death action brought by or against the decedent's representative. We hold that if the requisite foundation is established showing the integrity of the results, they may be admitted into evidence if they are found to be relevant. MRE 401."

In response, plaintiff, stressing that Mr. Green's blood was withdrawn in accordance with Sec. 625a(10) of the implied consent statute, argues that Sec. 625a(1) of that statute, in permitting the admission into evidence of test results regarding blood so withdrawn in specific and enumerated criminal prosecutions, by negative implication prohibits the admission of such test results in all civil actions. Moreover, plaintiff points out that the Hubenschmidt case was decided prior to the addition of Sec. 625a(10) to the implied consent statute and thus did not include an analysis of the effect of that subsection. See also McLean v. Rogers, 100 Mich.App. 734, 300 N.W.2d 389 (1980). At the time Hubenschmidt was decided in 1978, plaintiff avers, the implied consent statute did not include a provision for the withdrawal of blood from a deceased driver for the purpose of determining blood alcohol content. In 1980, the Legislature, in 1980 P.A. 515, rewrote Sec. 625c of the implied consent statute and, among other things, added the following language:

"(4) If after a highway accident the driver of a vehicle involved in the accident is deceased, a sample of the decedent's blood shall be withdrawn in a manner directed by the medical examiner for the purpose of determining blood alcohol content. The results of an examination of the blood of a deceased driver shall be used for statistical purposes only."

In 1982, the Legislature, in 1982 P.A. 310, deleted...

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6 cases
  • Swickard v. Wayne County Medical Examiner
    • United States
    • Michigan Supreme Court
    • September 19, 1991
    ...purpose of the privilege "is to encourage free discussion between doctors and their patients...." In Estate of Green v. St Clair Co Road Comm., 175 Mich.App. 478, 489, 438 N.W.2d 630 (1989), the Court considered whether an autopsy fit within the privilege in the context of a wrongful death ......
  • Dampier v. Wayne County
    • United States
    • Court of Appeal of Michigan — District of US
    • February 5, 1999
    ...and therefore not exempt from disclosure under the Freedom of Information Act. Id. See also Estate of Green v. St. Clair Co. Rd. Comm., 175 Mich.App. 478, 489, 438 N.W.2d 630 (1989). There was no indication in Swickard that the plaintiffs sought to obtain any information regarding the treat......
  • McCalla v. Ellis
    • United States
    • Court of Appeal of Michigan — District of US
    • October 26, 1989
    ...its discretion and will not be disturbed on appeal absent a showing of an abuse of discretion. Estate of Green v. St. Clair Co. Road Comm., 175 Mich.App. 478, 485, 438 N.W.2d 630 (1989). Defendant specifically objects to an instance when Dr. Theresa Foley testified that in her opinion the s......
  • Huss v. US
    • United States
    • U.S. District Court — Western District of Michigan
    • April 24, 1990
    ...prohibition, however, does not extend to use of blood alcohol tests performed on deceased persons. Green v. St. Clair County Road Comm'n, 175 Mich.App. 478, 438 N.W.2d 630, 631 (1989). Even assuming that the requirements of M.C.L.A. section 257.625a(10) pertain to the admissibility of the t......
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12 books & journal articles
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2017 Testimonial evidence
    • July 31, 2017
    ...36 In re Brink , 536 N.E.2d 1201, 42 Ohio Misc.2d 5 (Ohio Com.Pl. 1989); see also Estate of Green v. St. Clair County Road Com’n ., 438 N.W.2d 630, 175 Mich.App. 478 (Mich.App. 1989). 37 Desai v. Blue Shield of Northeastern New York, Inc. , 540 N.Y.S.2d 569, 146 A.D.2d 264 (N.Y.A.D. 3 Dept.......
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2018 Testimonial evidence
    • August 2, 2018
    ...36 In re Brink , 536 N.E.2d 1201, 42 Ohio Misc.2d 5 (Ohio Com.Pl. 1989); see also Estate of Green v. St. Clair County Road Com’n ., 438 N.W.2d 630, 175 Mich.App. 478 (Mich.App. 1989). 37 Desai v. Blue Shield of Northeastern New York, Inc. , 540 N.Y.S.2d 569, 146 A.D.2d 264 (N.Y.A.D. 3 Dept.......
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2020 Testimonial evidence
    • August 2, 2020
    ...37 In re Brink , 536 N.E.2d 1201, 42 Ohio Misc.2d 5 (Ohio Com.Pl. 1989); see also Estate of Green v. St. Clair County Road Com’n ., 438 N.W.2d 630, 175 Mich.App. 478 (Mich.App. 1989). 38 Desai v. Blue Shield of Northeastern New York, Inc. , 540 N.Y.S.2d 569, 146 A.D.2d 264 (N.Y.A.D. 3 Dept.......
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part I - Testimonial Evidence
    • July 31, 2015
    ...36 In re Brink , 536 N.E.2d 1201, 42 Ohio Misc.2d 5 (Ohio Com.Pl. 1989); see also Estate of Green v. St. Clair County Road Com’n ., 438 N.W.2d 630, 175 Mich.App. 478 (Mich.App. 1989). 37 Desai v. Blue Shield of Northeastern New York, Inc. , 540 N.Y.S.2d 569, 146 A.D.2d 264 (N.Y.A.D. 3 Dept.......
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