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Breaking Legal Developments

03-03-2003

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Michigan Court Rejects Expert's Opinion in Furnace Case


(1) MICHIGAN COURT REJECTS EXPERT'S OPINION IN FURNACE CASE

In Flock v. Scripto-Tokai Corp., No. 02-20098 (February 03,2003), (unpublished not binding precedent), the Michigan Court of Appeals reviewed a defense directed verdict in a product liability claim.

A home that was under construction started on fire on December 4, 1997. Plaintiff insured the house. Plaintiff, as a subrogee of the homeowners, sued defendant on two theories: design defect and breach of implied warranty. Plaintiff's theory was that the fire started in the furnace that defendant designed.

Plaintiff argued that the trial court abused its discretion in ruling that the opinion of plaintiff's expert, Dr. Anderson, with regard to a design defect, was not based on reliable, scientific evidence. The Court of Appeals disagreed. "The decision to admit or exclude expert testimony is within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion." Berryman v. K Mart Corp., 193 Mich. App. 88, 98; 483 N.W.2d 642 (1992).

In the case at hand, Dr. Anderson was received as an expert witness in electrical engineering. However, the trial court took under advisement whether Dr. Anderson could offer opinions with regard to the design defect. Dr. Anderson testified that the circuit board in the furnace, which was designed by defendant, caused the fire. Dr. Anderson also testified that the 009 and 016 circuit boards, which were different boards from the one in the furnace, were alternate designs.

At the close of plaintiff's proofs, defendant moved for and was granted a directed verdict. The trial court stated that it could not find one of the key elements established -- an alternate design that was economically and technically feasible. The trial court further stated that Dr. Anderson's opinions regarding an alternate design and the defective condition of the furnace were not supported by reliable, scientific evidence as required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469 (1993), and MRE 702. We review a trial court's grant or denial of a directed verdict de novo. Derbabian v. S & C Snowplowing, Inc., 249 Mich. App. 695, 701; 644 N.W.2d 779 (2002).

In Daubert, supra at 582, the question before the Court was what the standard is for admitting expert scientific testimony in a federal trial. The Court found that the Fryen1 test, i.e., the "general acceptance test," was superseded by the adoption of the FRE 702. Id. at 587-588.

The Michigan Legislature enacted MCL 600.2955(1) "in an apparent effort to codify the United States Supreme Court's holding in Daubert, [supra.]" Greathouse v. Rhodes, 242 Mich. App. 221, 238; 618 N.W.2d 106 (2000), rev'd on other grounds 465 Mich. 885, 636 N.W.2d 138 (2001). MCL 600.2955 states in part:

  1. In an action for the death of a person or for injury to a person or property, a scientific opinion rendered by an otherwise qualified expert is not admissible unless the court determines that the opinion is reliable and will assist the trier of fact. In making that determination, the court shall examine the opinion and the basis for the opinion, which basis includes the facts, technique, methodology, and reasoning relied on by the expert, and shall consider all of the following factors:
    1. Whether the opinion and its basis have been subjected to scientific testing and replication.
    2. Whether the opinion and its basis have been subjected to peer review publication.
    3. The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards.
    4. The known or potential error rate of the opinion and its basis.
    5. The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, "relevant expert community" means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.
    6. Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered.
    7. Whether the opinion or methodology is relied upon by experts outside of the context of litigation.

"The plain language of the statute establishes the Legislature's intent to assign the trial court the role of determining, pursuant to the Daubert criteria, whether proposed scientific opinion is sufficiently reliable for jury consideration." Greathouse, supra at 238 (emphasis in original).

The trial court listed a number of reasons why Dr. Anderson's opinions with regard to a design defect were not reliable, including that Dr. Anderson had not disassembled the 011 circuit board (the same board that was in the furnace); that Dr. Anderson did not test an 011 board; and that Dr. Anderson made no effort to recreate the failure of the 011 board. The trial court noted that Dr. Anderson concluded that the 011 board did not have to be tested separately because except for the board materials, it was for all other relevant purposes, identical to the 008 boards. However, the trial court noted that Dr. Anderson could not state from what the board materials were made, whether one board was stiffer than the other, or whether their thermal properties differed.

The trial court also stated that Dr. Anderson testified that the 009 and the 016 boards were alternative designs. But then the trial court noted that Dr. Anderson would not agree that the 009 was a safe alternative design that he would "sign off on" and that Dr. Anderson could not say that the 016 board was better than the 011 board with regard to any specific design changes.

"In evidentiary rulings, an abuse of discretion will be found 'only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made.'" Berryman, supra at 98, quoting Gore v. Rains & Block, 189 Mich. App. 729, 737; 473 N.W.2d 813 (1991) (citation omitted). After reviewing Dr. Anderson's testimony, we conclude that his opinion testimony with regard to a design defect was not supported by appropriate validation or indication of reliability, as required by Daubert, MRE 702, and MCL 600.2955(1). Therefore, the trial court did not abuse its discretion in finding that Dr. Anderson's opinion testimony was not reliable.

Plaintiff also argued that the trial court erred in granting defendant's motion for a directed verdict. The Court of Appeals disagreed. In order to prove breach of an implied warranty, the plaintiff must show that the product left the manufacturer in a defective condition and that the defect caused the plaintiff's injuries. Jodway v. Kennametal, Inc., 207 Mich. App. 622, 629; 525 N.W.2d 883 (1994). A product is defective if it is not "reasonably fit for its intended, anticipated or reasonably foreseeable use." Gregory v. Cincinnati Inc., 450 Mich. 1, 34; 538 N.W.2d 325 (1995) (citations omitted).

As discussed above, the trial court did not abuse its discretion in finding that Dr. Anderson's opinion regarding the design defect was not reliable. Plaintiff presented no other evidence to establish that the furnace was defective. Because the evidence was insufficient to establish a prima facie case for breach of implied warranty, the trial court properly granted defendant's motion for a directed verdict. Reisman v. Regents of Wayne State University, 188 Mich. App. 526, 538; 470 N.W.2d 678 (1991).

Plaintiff also brought a claim against defendant for design defect. "A plaintiff who claims that a product was defectively designed has the burden of producing evidence of the magnitude of the risk posed by the design, alternatives to the design, or other factors concerning the unreasonableness of the risk of a particular design." Lawrenchuk v. Riverside Arena, Inc., 214 Mich. App. 431, 435; 542 N.W.2d 612 (1995) (citations omitted). Again, because the trial court did not abuse its discretion in finding that Dr. Anderson's opinion with regard to alternate designs was not reliable, the court found that the evidence presented was insufficient to establish a prima facie case. Therefore, the trial court did not err in granting defendant's motion for a directed verdict with regard to plaintiff's design defect claim.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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