Lopez v. General Motors Corp., Docket No. 164400

• Decision Date: 22 July 1997
• Docket Number: Docket No. 164400
• Citation: 569 N.W.2d 861,224 Mich.App. 618
• Parties: , Prod.Liab.Rep. (CCH) P 15,060 Misti S. LOPEZ, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 861

569 N.W.2d 861

224 Mich.App. 618, Prod.Liab.Rep. (CCH) P 15,060

Misti S. LOPEZ, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

Docket No. 164400.

Court of Appeals of Michigan.

Submitted Feb. 14, 1997, at Lansing.

Decided July 22, 1997, at 9:10 a.m.

Released for Publication Oct. 8, 1997.

Beltz & Associates by Charles D. Riley, Flint, for plaintiff-appellant.

Reynolds, Beeby & Magnuson by Dawn Reveley Martin and Michael C. McKinnon, Troy, and Kirkland & Ellis by J. Andrew Langan, Chicago, IL, for defendant-appellee.

Before HOLBROOK, Jr., P.J., and MacKENZIE, GRIBBS, FITZGERALD, HOEKSTRA, MARKMAN and YOUNG, JJ.

YOUNG, Judge.

Plaintiff brought suit against defendant alleging negligence and breach of an implied warranty as a result of injuries she sustained in an accident in an automobile manufactured by defendant. Plaintiff appealed from a judgment of no cause of action entered by the Shiawassee Circuit Court following a jury verdict that defendant was not negligent and did not breach an implied warranty. A panel of this Court reversed and remanded for a new trial because of the admission and use of two videotapes depicting crash tests conducted by defendant. Lopez v. General Motors Corp., 219 Mich.App. 801, 555 N.W.2d 875 (1996). However, two members of that panel concurred in the reversal solely because they were constrained by Administrative Order No.1996-4 to follow Sumner v. General Motors Corp., 212 Mich.App. 694, 538 N.W.2d 112 (1995).

Pursuant to the conflict invoked by the concurring members of the Lopez panel under Administrative Order No.1996-4, the members of this Court were polled and a majority voted to convene this conflict panel. On December 30, 1996, an order was entered convening this panel and vacating the Lopez opinions.

For the reasons stated below, we overrule Sumner insofar as it establishes an evidentiary rule concerning the introduction of demonstrative evidence different from that set forth in Smith v. Grange Mut. Fire Ins. Co. of Michigan, 234 Mich. 119, 208 N.W. 145 (1926). We affirm the circuit court judgment entered in this case.

I Factual Background

Plaintiff's lawsuit arises out of a single-car accident that occurred in the dark early morning hours of January 10, 1989. Plaintiff was driving a 1987 two-door Chevrolet Chevette hatchback manufactured by defendant General Motors Corporation. Ms. Lopez drove her Chevette to an intersection with a stop sign and thereafter into the side of a freight train parked across a subsequent intersection. Plaintiff estimated that she may have been traveling as fast as twenty-one or twenty-two miles an hour at impact. ¹ Although plaintiff was wearing the lap and shoulder belt supplied by the defendant with the automobile, she sustained substantial facial and upper-body injuries as a result of the accident. Plaintiff brought a product liability action against defendant, alleging that she sustained her injuries because the seat belt restraint system in her Chevette failed on impact.

A lengthy trial ensued. As noted, the jury returned a verdict of no cause of action in favor of defendant. ² Of central importance to this appeal was the trial court's admission of two videotapes of crash tests conducted by defendant on Chevettes--so-called "sled" and "frontal barrier" tests ³--and the use of these tests by defendant's experts during trial.

II The Nature of the Parties' Evidentiary Dispute

At trial, plaintiff's liability theory was that, because of an alleged manufacturing defect in the retractor mechanism of the Chevette's shoulder belt restraint system, the shoulder belt failed initially to engage properly, or if it engaged initially, it broke on impact, causing plaintiff's face and body to strike the steering wheel. ⁴ Plaintiff's theory was supported by her expert witness, Henry Kowalski.

Defendant's theory at trial was that there was no defect in the restraint system, that it operated properly, and that the type of injuries plaintiff received were of a kind to be expected in accidents such as plaintiff's. Defendant's position was supported by expert witnesses Karen Morley and David Peruski. Morley testified ⁵ as an expert in occupant kinematics (body movements) and biomechanics (how bodies react to forces). Peruski testified about the operation of the restraint system and the retractor mechanism. Peruski testified with the aid of the videotapes of the sled test and the frontal-barrier crash test. The videotapes showed the movement of dummies in test vehicles during the crashes. The heads of the "driver" dummies in the two tests could be seen to strike the steering wheel even though they were restrained by a three-point lap and shoulder safety belt system. At trial, after being ruled qualified to do so, Peruski also testified about occupant kinematics. He did so again with specific reference to the videotaped tests. It was the opinion of both Peruski and Morley that the restraint system functioned properly and that plaintiff's injuries were consistent with a properly functioning restraint system.

At trial and on appeal, plaintiff primarily challenges the admission of the two videotapes of the test crashes. Before the commencement of defendant's case in chief, the trial court addressed plaintiff's challenges to the admission of the two videotapes in response to plaintiff's oral motion in limine. Defendant offered the two tapes as business records, asserting that they were relevant to the issue of due care, demonstrating that defendant tested its seat belt system. Defendant further asserted that the tests were critical as necessary aids to the testimony of defendant's experts concerning general principles of occupant kinematics in a frontal crash. Defendant acknowledged that the two tests were conducted before plaintiff's accident and conceded that the tests were not intended as re-creations of the accident at issue, but were offered as demonstrative evidence that was "substantially similar" to that accident. ⁶

In the circuit court, plaintiff objected to the admission of the videotapes of the tests on several grounds: (1) lack of foundation, ⁷ (2) the tests were not relevant because they did not replicate the identical conditions of plaintiff's collision, ⁸ and (3) the results of the tests were inadmissible, prejudicial hearsay. ⁹

The trial court found that the videotapes were proper business records under MRE 803(6); that, because the defendant was offering the videotapes as demonstrative evidence rather than as a re-creation of the plaintiff's accident, the dissimilarities between the tests and the accident went not to the admissibility of the evidence, but to its weight; and that the evidence was relevant and not more prejudicial than probative. Accordingly, the court allowed admission of the videotapes without limitation, and plaintiff requested no limiting instruction.

As stated, this Court initially reversed, concluding that the tests violated the rule propounded in Sumner, and held as follows:

The defense was in essence using the tests to prove that the severity and extent of the plaintiff's injuries were the normal results of a frontal collision. The record establishes that the videotapes were used well beyond the illustration of general scientific principles and their admission was error [sic]. Under these circumstances, I am unable to conclude that the videotapes of the tests were properly admitted as limited [ ¹⁰] to establishing general principles of occupant kinematics or as having been conducted under conditions substantially similar to plaintiff's accident.

Crucial to the liability issue was the question whether under these accident conditions, a properly functioning seat belt would be expected to restrain this plaintiff to the extent that she would not have suffered the injuries she did. The experts disagreed with regard to this issue. However, defendant's experts' testimony was buttressed by the videotapes depicting the dummies of a dissimilar size, traveling at a dissimilar speed, hitting the steering wheel. Like the Court did in Sumner, supra, I conclude that the evidence addressed a major issue in the case and was visually compelling. Therefore, the admission of the tapes was not harmless. [Lopez, supra at 812-813, 555 N.W.2d 875 (emphasis added).]

A. Business Record Exception

Two of plaintiff's evidentiary challenges to the admission of the tests are founded on a misapprehension of the business record exception. Business records, as defined by MRE 803(6), constitute an exception to the hearsay rule, MRE 803, and a purported business record may be admitted if it meets the foundational requirements of that rule. See People v. Safiedine, 163 Mich.App. 25, 33, 414 N.W.2d 143 (1987). As with any other form of evidence, once a business record is admitted, in the absence of other bases for challenge or a limiting instruction, it is admitted for all purposes and may be used as such. ¹¹ See People v. Spillman, 399 Mich. 313, 319, 249 N.W.2d 73 (1976) (quoting 1 Wigmore, Evidence [3d ed], § 13, p 300).

The testimony of Peruski and Morley described how the videotapes were created and maintained by the defendant in a manner sufficient to satisfy the foundational requirements. ¹² Contrary to plaintiff's argument, it was not necessary for defendant to present a witness who actually conducted the tests or made the videotapes in order to establish a proper foundation. People v. Safiedine, 152 Mich.App. 208, 216-217, 394 N.W.2d 22 (1986). We conclude on this record that it was not an abuse of discretion to admit the videotapes into evidence as business records. Id.; Hadley v. Trio Tool Co., 143 Mich.App. 319, 328, 372 N.W.2d 537 (1985).

B. Demonstrative Evidence: The Rule of Smith v. Grange Mut. Fire Ins. Co.

Plaintiff's remaining attacks on the admissibility of the videotapes are essentially assaults on the rule established by our Supreme Court in Smith v. Grange Mut. Fire Ins. Co....