Kluck v. Borland
| Decision Date | 15 October 1987 |
| Docket Number | Docket No. 93653 |
| Citation | 413 N.W.2d 90,162 Mich.App. 695 |
| Parties | Karen KLUCK, Plaintiff-Appellee, v. Tamara BORLAND, Defendant-Appellant. 162 Mich.App. 695, 413 N.W.2d 90 |
| Court | Court of Appeal of Michigan — District of US |
[162 MICHAPP 696] Condit, McGarry & Schloff, P.C. by Alexander B. McGarry and Thomas J. Trenta, Birmingham, for defendant-appellant.
Before WEAVER, P.J., and KELLY and KIRWAN, * JJ.
The sole issue raised in this appeal is whether the trial court abused its discretion by ruling that thermographic evidence was admissible to prove serious impairment of a body function. Defendant contends that it was error to admit the evidence. We agree and reverse and remand.
Plaintiff's claim is based on personal injuries she suffered after the automobile in which she was a passenger failed to stop at a blinking red light and collided with another car. Defendant driver admitted negligence at trial.
As a result of the accident plaintiff sought medical treatment. Despite the fact that x-rays did not reveal any injury, Arthur Kaselemas, M.D., plaintiff's examining physician, determined that plaintiff had sustained a fairly severe injury to her neck. Subsequently, Ram Gunabalan, M.D., performed a thermographic study of plaintiff, which in Doctor Gunabalan's opinion indicated an irritation of the eighth cervical nerve.
Prior to trial an evidentiary hearing was conducted to determine the admissibility of the results of the thermography. The trial court ruled that thermographic evidence was sufficiently accepted by disinterested experts to justify its admission. At the conclusion of trial, the trial court held:
[162 MICHAPP 697] "[B]ut for this thermographic test and evidence, the Court would have ruled that based upon current Michigan law today, and a review of medical evidence, the defendant [sic, plaintiff] did not meet the threshold to demonstrate serious impairment of a bodily function."
Based on the results of the thermography the lower court held that there was sufficient objective evidence and plaintiff had met her burden of proof.
"The admissibility of scientific evidence in this state is governed by the so-called Davis-Frye rule." People v. Young, 418 Mich. 1, 17, 340 N.W.2d 805 (1983).
That rule as it now stands is a culmination of the reasoning in Frye v. United States, 54 U.S.App.D.C. 46, 47, 293 F. 1013 (1923), People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955), and People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977). The rule is that expert testimony concerning a novel form of scientific evidence may be admitted so long as it is established that the evidence has achieved general scientific acceptance among impartial and disinterested experts in the field. The party offering the evidence has the burden of demonstrating that it has been accepted as reliable by the scientific community. People v. Young, supra 418 Mich. at 20, 340 N.W.2d 805.
At trial in this matter, plaintiff submitted the depositions of three experts to establish that thermography has achieved general scientific acceptance. Doctor Gunabalan stated that it was his opinion, based on his knowledge that thermography was used on a regular basis at leading medical institutions, that thermography was recognized and accepted as reliable and thermograms should be used as a diagnostic tool.
The deposition of Pierre Leroy, M.D., was also introduced into evidence on behalf of plaintiff. Dr. [162 MICHAPP 698] Leroy had written and lectured on the diagnosis and evaluation of pain through the use of thermography. Dr. Leroy likewise held the opinion that thermography was useful in the diagnosis and monitoring of pain in soft tissue injuries.
Plaintiff also introduced the deposition of Charles E. Wexler, M.D., a board-certified diagnostic radiologist as well as the secretary-treasurer of the American Academy of Thermology. It was Dr. Wexler's opinion that thermography was a scientifically sound diagnostic tool that provided unique information on sensory nerve damage otherwise unavailable.
Before determining whether the conclusions reached by plaintiff's experts established that thermography has achieved general scientific acceptance, it is first necessary to determine whether the experts are disinterested and impartial. People v. Young (After Remand ), 425 Mich. 470, 481, 391 N.W.2d 270 (1986). "The standard developed by this Court is whether the expert's 'livelihood was not intimately connected with the new technique.' " People v. Young (After Remand ), supra at 483, 391 N.W.2d 270, quoting People v. Tobey, 401 Mich. 141, 145, 257 N.W.2d 537 (1977).
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...technologies, such as DNA matching, because of its requirements. 15 For thermographic cases which cite Frye , see: Kluck v. Borland , 162 Mich.App. 695, 413 N.W.2d 90 (1987); State v. Martin , 101 Wash.2d 713, 684 P.2d 651 (1984); State v. Maule , 35 Wash.App. 287, 667 P.2d 96 (1983); State......
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...technologies, such as DNA matching, because of its requirements. 15 For thermographic cases which cite Frye , see: Kluck v. Borland , 162 Mich.App. 695, 413 N.W.2d 90 (1987); State v. Martin , 101 Wash.2d 713, 684 P.2d 651 (1984); State v. Maule , 35 Wash.App. 287, 667 P.2d 96 (1983); State......
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Internal Pictures
...technologies, such as DNA matching, because of its requirements. 15 For thermographic cases which cite Frye , see: Kluck v. Borland , 162 Mich.App. 695, 413 N.W.2d 90 (1987); State v. Martin , 101 Wash.2d 713, 684 P.2d 651 (1984); State v. Maule , 35 Wash.App. 287, 667 P.2d 96 (1983); State......
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Table of Cases
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