Mulholland v. DEC Intern. Corp.
| Decision Date | 06 June 1989 |
| Docket Number | No. 81545,81545 |
| Parties | , Prod.Liab.Rep. (CCH) P 12,231 Robert and Betty MULHOLLAND, husband and wife, and Richard and Lori Mulholland, husband and wife, Plaintiffs-Appellants, v. DEC INTERNATIONAL CORPORATION, a foreign corporation, and Tom Nelson Crawford, doing business as Tommy's Refrigeration Service, Defendants-Appellees. |
| Court | Michigan Supreme Court |
Edward R. Post, Miller, Johnson, Snell & Cummiskey, Grand Haven, for plaintiffs-appellants.
Mika, Meyers, Beckett & Jones by Douglas A. Donnell, Grand Rapids, for defendant-appellee Tom Nelson Crawford.
Bremer, Wade, Nelson & Alt by William M. Bremer, Phillip J. Nelson, Grand Rapids, for defendant-appellee DEC Intern.
Two issues are raised in the plaintiffs' appeal from the directed verdict in their product liability action. The first is whether the trial court erred by ruling that plaintiffs' expert, Sidney Beale, was qualified to give an expert opinion as to the cause of mastitis in the plaintiffs' herd of dairy cows. The second issue is whether the plaintiffs' proofs were sufficient to survive the motion for a directed verdict, with or without Beale's testimony as to the cause of mastitis in the Mulholland herd. We have concluded that both questions must be answered in the affirmative and that this matter must be remanded to the trial court for further proceedings.
The plaintiffs, Robert and Betty Mulholland, operated a dairy farm in Montcalm County for many years. The Mulholland operation was small. About fifty to fifty-five cows were milked in an old barn. Feed was raised on 140 acres of the farm.
In 1979, the Mulhollands reached an agreement in which two of their sons, Richard and Randy, would return to the farm and the dairy operation would be enlarged to support the three families. According to the plan, the dairy herd would be expanded to two hundred cows by September of 1982. A new barn was also to be built, including a new milking parlor. Finally, a new milking system was to be installed in the barn.
The barn was completed and the new milking system installed in March, 1980. The equipment for the milking system was supplied by the defendant DEC International Corporation and installed by defendant Tom Nelson Crawford, doing business as Tommy's Refrigeration Service.
By the time the new barn and milking equipment were operational, the Mulholland herd was already up to seventy-one cows. Additional cows were added to the herd in April and October, 1980, as well as March, 1981. Most, if not all, of the additional cows were purchased from other farms.
Sometime after March, 1980, the Mulhollands observed that their cows were not "milking out." The cows appeared to be uncomfortable and "steppy" or nervous around the milking parlor. On June 1, 1980, the Mulhollands went from two to three milkings each day in an attempt to get the cows to milk out. About that time, they noticed sores beginning to develop on the teat ends of the cows. Increased mastitis, an infection and inflammation of the udder, also was noticed. On July 21, the Mulhollands returned to two milkings each day, but sores continued to develop on the cows' teat ends and mastitis continued to grow in the herd. The milk from infected cows could not be sold.
George Stuewer, a doctor of veterinary medicine, began working with the Mulholland herd after the new, expanded operation began. Dr. Stuewer treated the more acute cases of mastitis, while the Mulhollands themselves treated the milder cases. Dr. Stuewer noted the scabs on the teat ends of the cows, as well as the "pinched" look of the teat ends after the milking cups were removed. He was aware that this condition was associated with milking machine problems. While watching a milking, Dr. Stuewer also observed that the milk was "thrashing" in the machinery, rather than developing a smooth flow. Dr. Stuewer did not profess to be an expert on milking machines. He therefore suggested the Mulhollands consult with Sidney Beale. Dr. Stuewer had previously spoken with Beale and was impressed with Beale's knowledge of milking machinery.
Sidney Beale was not a veterinarian, but did have a B.A. degree in agriculture with an emphasis in dairy science. Beale began working with milking machines in 1950 and had been employed as a consultant for about ten years. When he arrived at the Mulholland farm in November, 1980, Beale first observed a complete milking of the herd. He too noticed the sore teat ends, mastitis, the fact that the cows were not milking out, and that the milk was thrashing in the milk lines. Beale ruled out other problems in the milking parlor and then concluded that these problems were related to the configuration of the milking machinery. Specifically, Beale concluded that the use of a header in the vacuum lines was causing the thrashing in the lines, thereby pinching the teat ends and preventing the cows from being milked out. Beale did not examine other aspects of the Mulholland operation, but did prescribe changes in the configuration of the machinery which would allow for removal of the header.
The changes prescribed by Beale were implemented by Tommy's Refrigeration Service in December, 1980. Afterwards, Beale, Dr. Stuewer, and the Mulhollands all noted a decrease in mastitis and an increase in milk production in the herd.
The Mulhollands filed suit in February, 1981, alleging a breach of warranty, negligence in the design and manufacture of the milking machinery, and a failure to warn. Extensive discovery followed, and trial commenced on April 16, 1985. In the course of Beale's testimony, counsel for the plaintiff sought to establish a foundation for the witness' testimony as to the cause of mastitis in the Mulholland herd. After a lengthy voir dire, the trial court ruled that Beale was not qualified to give such an opinion because he was not a licensed veterinarian.
No further proofs were offered by the plaintiffs and the defense counsel brought a motion for a directed verdict. Defense counsel argued that the plaintiffs had not established a prima facie case in that they had produced no evidence that the milking machinery had caused either an increase in mastitis or the consequential decrease in milk production. The trial court agreed and entered an order of directed verdict for the defendant.
The plaintiffs appealed the decision, arguing that the trial court erred in ruling that Beale lacked the necessary qualifications to express his opinion as to the cause of mastitis in the Mulholland herd. Alternatively, the plaintiffs argued that there was sufficient circumstantial evidence of the cause of mastitis to create an issue of fact for the jury. The Court of Appeals, in an unpublished opinion dated August 5, 1987, disagreed, affirming the trial court's decision. We granted leave to appeal on both issues in an order dated March 22, 1988. 430 Mich. 857 (1988).
The Michigan Rules of Evidence provide:
"If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to 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." MRE 702. 1
It is a long-established principle of Michigan law that the qualification of an expert to render an opinion is a matter which rests in the discretion of the trial court. Appellate courts will interfere with a trial court's ruling in this regard only to correct an abuse of discretion. People v. Gambrell, 429 Mich. 401, 407, 415 N.W.2d 202 (1987).
Wigmore notes and endorses the abuse of discretion review standard over trial court rulings as to the qualifications of experts. 2 Wigmore, Evidence (Chadbourn rev), Sec. 561, pp 756-759. According to Wigmore, three considerations underlie the restrictive review standard in these matters. First, a determination of the expert's qualifications in light of the proposed testimony often involves complicated factual reviews. Second, cross-examination of the expert is an "ample and sure safeguard." Third, the matter of qualifications is considered to be too trifling to warrant appellate review.
The trial court's ruling in this case touched upon a number of general concerns regarding the qualification of experts, but ultimately came to rest upon the matter of licensing. As the trial court explained:
We believe that the trial court abused its discretion in so ruling.
MRE 702 expressly provides that an expert may be qualified by virtue of his knowledge, skill, experience, training, or education. It does not refer to licensing as a method of qualification, much less as a requisite for the qualification of an expert. We do not believe that this omission was inadvertent. At best, a license is evidence of qualifications and thereby a useful shorthand in day-to-day commerce. Except in the most narrow legal sense, 2 a license is not a qualification in itself. Even its value as...
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