Michigan Court of Appeals; Docket #353611; Unpublished
Judges Letica, Servitto, and Kelly; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Issues Regarding Expert Witnesses
In this unanimous, unpublished, per curiam decision, the Court of Appeals (on remand from the Supreme Court) affirmed the trial court’s denial of Defendant City of Detroit’s motion for summary disposition, seeking dismissal of Plaintiff Bruce Wood’s auto negligence action against it. The Court of Appeals held that a question of fact existed as to whether James Derrick Pennington, a bus driver for the City of Detroit, was negligent in his operation of a bus that had a tire fly off of it and strike Wood, injuring him. More specifically, the Court of Appeals held that the trial court did not err in refusing to strike Wood’s expert accident reconstructionist’s opinion regarding what Pennington would have felt as he drove a bus without a properly affixed tire.
Bruce Wood was walking across the street when he was struck by a tire which flew off of a City of Detroit bus. The bus was being operated at the time by James Derrick Pennington, who testified that he did not notice anything wrong with the bus until the tire flew off. It was later determined, however, that the tire which flew off was missing lug nuts which were needed to affix it to the vehicle. In Wood’s subsequent auto negligence action against the City of Detroit, he argued that Pennington was negligent in attempting to operate a bus that he reasonably should have known was not safe to operate. In support of his negligence claim, Wood presented a report from accident reconstructionist Timothy Robbins, who concluded that “the lack of lug nuts was evident by the chaffing and scarring to the tire and that the driver of the van would have experienced significant wobbling to alert him about the unsecured tire.” The City of Detroit subsequently retained its own accident reconstructionist, Jerome Eck, who cast doubt on Robbins’s opinion and the fact that Robbins’s report did not cite any academic literature. The City of Detroit argued that, based on Dr. Eck’s conclusions and Pennington’s testimony, Dr. Robbins’s report should be stricken and that, as a result, summary disposition should be granted in the City of Detroit’s favor. The trial court disagreed and denied the City’s motion, and the Court of Appeals affirmed on interlocutory appeal, finding that a question of fact existed as to whether Pennington was negligent. In reaching its holding, the Court of Appeals implied—but did not explicitly find—that Dr. Robbins’s affidavit was admissible.
Several months later, Wood filed a separate complaint against the City of Detroit and 17 mechanics who would have been responsible for maintenance on the bus, and the defendants jointly moved for summary disposition, again arguing that Robbins’s affidavit was inadmissible. The trial court disagreed and again denied the City’s motion, and the Court of Appeals again affirmed, holding that the Wood I Court decided, by implication, the issue of the admissibility of Robbins’s affidavit and that the City was thereafter barred by challenging its admissibility pursuant to the law-of-the-case doctrine. The Supreme Court then vacated the Court of Appeals’ application of the law-of-the-case doctrine based on its decision in Rott v Rott, 508 Mich 274 (2021), in which it essentially held that an implied ruling does not create “law of the case.” The Supreme Court then vacated the Court of Appeals to explicitly decide the issue of Robbins’s affidavit’s admissibility.
On remand, the Court of Appeals affirmed the trial court’s finding that Robbins’s affidavit was admissible. In doing so, the Court noted that Robbins’s affidavit set forth his “qualification as an expert traffic crash reconstructionist and his years of training and experience,” and therefore did not necessarily need to cite to “scientific articles to support his viewpoint.” If the City of Detroit wanted to actually challenge the scientific validity of his viewpoint, it could have requested a Daubert hearing, which it declined to do.
“In defendants’ expert’s affidavit, Dr. Ecks concluded that Robbins’s opinion was contrary to ‘scientific, peer reviewed research[.]’ Yet, Dr. Ecks did not delineate the application of the attached articles and how those articles demonstrated that Robbins’s expert opinion as an accident reconstructionist should be stricken. Dr. Ecks simply presented a different view of the evidence, not a basis to strike Robbins’s affidavit. Whether Robbins’s opinion would meet the standards set forth in Daubert presents a different question for which defendants did not request a hearing. Accordingly, the trial court appropriately denied summary disposition when faced with the demand that Robbins’s affidavit be stricken.”