NESHIA FREEMAN V FMC CORP
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STATE OF MICHIGAN
COURT OF APPEALS
NESHIA FREEMAN, Conservator and Guardian of
the Person and Estate of WILVARD L. FREEMAN,
Incompetent,
UNPUBLISHED
February 3, 1998
Plaintiff-Appellant,
and
UNISYS CORPORATION,
Intervening Plaintiff,
v
No. 183386
Wayne Circuit Court
LC No. 89-908868-NP
FMC CORPORATION,
Defendant-Appellee,
and
MANUS DISTRIBUTORS, INC., d/b/a MANUS
POWER MOWERS, INC.,
Defendant.
NESHIA FREEMAN, Conservator and Guardian of
the Person and Estate of WILVARD L. FREEMAN,
Incompetent,
Plaintiff-Appellees,
and
UNISYS CORPORATION,
-1
Intervening Plaintiff,
v
No. 197873
Wayne Circuit Court
LC No. 89-908868-NP
FMC CORPORATION,
Defendant-Appellant,
and
MANUS DISTRIBUTORS, INC., d/b/a MANUS
POWER MOWERS, INC.,
Defendant.
Before: Markman, P.J., and McDonald and Cavanagh, JJ.
PER CURIAM.
In Case No. 183386, a products liability case, plaintiff appeals as of right from the jury’s verdict
in favor of defendant FMC. In Case No. 197873, defendant FMC appeals by delayed leave granted
from the trial court’s denial of its motion for mediation sanctions and taxable costs in the same case.
We affirm in both cases.
Plaintiff was severely injured when the tractor mower he was using, as an employee of Unisys,
went backwards over a retaining wall and into the street below and then rolled over him. The mower
was designed, manufactured and sold by FMC. Plaintiff passed away following the trial but before
defendant filed its motion for mediation sanctions.
Plaintiff first argues that the trial court abused its discretion in allowing defendant FMC to
endorse a witness mid-trial, and in allowing the witness to testify on rebuttal and surrebuttal. We
disagree. Plaintiff’s expert (Dr. Crimp) testified that a gear handle on the tractor had been cracked
when it was shaped during manufacture and that, according to the engineering drawing of the handle,
such cracking was expected and tolerated. The crack would become worse with wear, weakening the
handle, and could cause it to fail, especially since the particular transmission was difficult to engage. If
the tractor was operated while the transmission was only partially engaged, it could spontaneously come
out of gear. While out of gear, that is, in neutral, it would have no brakes and would travel backwards
faster than in gear, which would tend to explain how it cleared the sidewalk and landed in the street
when it went off the retaining wall.
-2
On the first day of defendant’s case, counsel moved for permission to endorse a new witness
(Dr. Packer) to meet plaintiff’s evidence that the transmission had been operated while only partially
engaged. The trial court found that plaintiff’s expert had presented a “new field of inquiry” and, in the
interest of helping the jury, allowed defendants to endorse a new expert. Defense counsel was ordered
to make him available to plaintiff’s counsel for a deposition that afternoon, which in fact occurred.
Further, the court adjourned early and told plaintiff’s counsel that it was giving him “the night to consider
your cross-exam, to forestall the series of arguments that you had that this kind of testimony is a total
surprise.”
The decision whether to allow the late endorsement of an expert witness is reviewed for abuse
of discretion. Herrera v Levine, 176 Mich App 350, 355; 439 NW2d 378 (1989); Pastrick v
General Tel Co, 162 Mich App 243, 245; 412 NW2d 279 (1987). “Trial courts should not be
reluctant to allow an unlisted witness to testify where justice so requires, particularly with regard to
rebuttal witnesses.” Pastrick, supra, at 245. There is no list of conditions which must be met before
the late endorsement is proper. Id. A trial court should set appropriate conditions to prevent prejudice
and to enable the opposing party to meet the testimony of the new witness. Id. at 246 (relying on
Pollum v Borman’s, Inc, 149 Mich App 57, 62-63; 385 NW2d 724 [1986]). “[J]ustice is best
served where an unlisted witness can be permitted to testify while the interests of the opposing party are
adequately protected” because doing so affords the jury “a fuller development of the facts surrounding
the case.” Pastrick, supra, at 246.
The trial court did not abuse its discretion in allowing the late endorsement of the witness,
subject to conditions. Plaintiff did not request more time to prepare and plaintiff did depose the witness
before he testified. “The trial court’s conditions of permitting [plaintiffs] an opportunity to interview the
undisclosed witness and to secure their own expert were reasonable.” Pastrick, supra, at 246.
Particularly given that plaintiff’s principal objection is that the rebuttal testimony was cumulative, it is
difficult to understand how the expert’s testimony could be so prejudicial as to merit reversal. MRE
103(a).
As to the allegedly improper surrebuttal, plaintiff claims that Dr. Packer should not have been
allowed to modify his prior testimony after having heard testimony from Dr. Crimp, out of the presence
of the jury, which asserted that the gear used by Dr. Packer in his initial testimony was not really a used
gear as he claimed. The expert testimony in this case was based on an examination of the transmission
gear of the tractor involved in the accident (the “subject” gear), of two identical unused “new” gears,
and of a used gear from an identical tractor (the “exemplar” gear). Dr. Packer testified about an exhibit
which he thought was the exemplar gear but which, in fact, turned out to be one of the new gears. He
testified on the basis of his own pictures of the actual exemplar gear rather than the exhibit itself. This
mistake was discovered when Dr. Crimp took his own high magnification photographs of the exhibit in
controversy and saw no signs of wear on the gear’s teeth. Because the parties initially thought that this
was a mere difference of opinion, and court did not wish to have a battle of the experts in front of the
jury, Dr. Crimp was not allowed to testify that the exhibit could not be the exemplar gear because it
showed no signs of wear at all.
-3
Later in the trial, the court allowed Dr. Crimp to testify that the exhibit was not the same as the
exemplar gear photographed and relied upon by Dr. Packer. In response, defense counsel not
surprisingly indicated that he wanted to bring Dr. Packer back in light of this evidence. The court
indicated that it would allow defendants to present Dr. Packer as a surrebuttal witness to Dr. Crimp’s
new testimony.1 Further, it would accord considerable leeway to plaintiff on cross-examination and
consider the possibility of allowing Dr. Crimp to make new photographs of the real exemplar gear to
supplement his previous testimony
As expected, Dr. Packer testified that the original exhibit was a new unused gear, not the
exemplar gear, and that therefore, as previously testified by Dr. Crimp, the photographs of that gear did
not show any signs of wear. The genuine, used, exemplar gear was introduced as a new exhibit. Dr.
Packer maintained that, although the wrong gear was originally brought into the courtroom and placed in
evidence as an exhibit, his opinions remained the same because they were based on his examination and
photographs of the real exemplar gear. After Dr. Packer’s surrebuttal testimony, the judge asked
plaintiff’s counsel whether he wanted more time to have the real exemplar gear examined by the expert,
suggesting that it might be willing to award plaintiff some costs “because of defendant’s admitted error.”
Plaintiff declined and indicated that she was ready for closing argument. Under these circumstances, the
trial court did not abuse its discretion in allowing Dr. Packer to testify rather than allowing the jury to
proceed to a verdict under an admitted mistake of fact.
Plaintiff also argues that the trial court abused its discretion in a
llowing another expert (Dr.
Guenther) to testify because his opinion was allegedly unsupported by the evidence. Again we disagree.
The expert was merely asked to reconstruct the accident based upon the differing testimony of various
witnesses. Triple-E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 175; 530
NW2d 772 (1995); MRE 703.
Plaintiff’s premise-- that an expert’s opinion must always be based upon facts in evidence-- is
mistaken. Rather, the rules of evidence provide that “[t]he facts or data in a particular case upon which
an expert bases an opinion or inference may be those perceived by or made known to the expert at or
before the hearing.” MRE 703. “The court may require that underlying facts or data essential to an
opinion or inference be in evidence,” MRE 703 (emphasis added), but did not do so in this case. Thus,
“an expert witness may base an opinion on hearsay or the findings and opinions of other experts.” Id.
at 175.
Dr. Guenther, an accident reconstructionist, testified that, if one assumed that the decedent
weighed between 175 and 200 pounds; that he received only one blow to the head (above and slightly
behind the ear); and that the tractor went backwards off a four-foot high wall, cleared a ten-foot
sidewalk, and landed eight to ten feet into the street (as testified by the only eyewitness to the actual
fall), then the tractor must have been traveling at about sixteen miles per hour. He testified further that,
if one assumed instead that the tractor made initial contact at a sixty degree angle to the ground and
landed upside down about two or three feet into the street (as testified to by another witness), then the
tractor would have only been traveling at about five or six miles an hour, which is within the range for the
tractor in reverse gear, and must have bounced once before coming to rest on the street. Lastly, he was
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asked to assume that the tractor had landed four or five feet into the street (as testified to by still another
witness) and he replied that the tractor must have been traveling at about six miles per hour or a bit
faster. He indicated that, based on his examination of the damage to the tractor, it was his opinion that it
left the wall going about five or six miles an hour, hit the ground at about a sixty degree angle, bounced,
and landed somewhere between two and five feet into the street. Given the size of the tires, and the
momentum and rotation of the vehicle as it fell, the expert specifically discredited other testimony that
the tractor did not bounce. Dr. Guenther also specifically stated that the various eyewitness testimonies
were inconsistent and that he could not provide an explanation that accommodated all of them. In our
judgment, the trial court did not abuse its discretion in finding that Dr. Guenther’s opinion was
admissible.
Next, plaintiff argues that the trial court erred in refusing to give both a negligence instruction and
a breach of implied warranty instruction. We disagree. Where the claim is negligence in the design of a
product, the two theories merge and giving both instructions would have been erroneous. Gregory v
Cincinnati Inc, 450 Mich 1, 12-13; 538 NW2d 325 (1995); Prentis v Yale Manufacturing Co, 421
Mich 670, 691-692, 694-695; 365 NW2d 176 (1984). Indeed, separate breach of warranty and
negligence “instructions could have created jury confusion and prejudicial error.” Id. “Such an
instruction would have been repetitive and unnecessary and could have misled the jury into believing that
plaintiff could recover on the warranty count even if it found [that] there was no ‘defect’ in the design of
the product.” Id. Therefore, “in a products liability action against a manufacturer, based upon defective
design, the jury need only be instructed on a single unified theory of negligent design.” Id. at 695.
Finally, defendant FMC claims that the trial court erred in refusing to award mediation sanctions
against plaintiff. We disagree. The record shows that defendant clearly waived its right to collect
sanctions from plaintiff. Moore v First Security Cas Co, 224 Mich App 370, 376; 568 NW2d 841
(1997). While FMC did not waive its right to obtain an order awarding costs and sanctions against
plaintiff, it did repeatedly promise not to collect on it. Counsel at all times led the trial court to believe
that her client had already agreed not to collect on such an order. It would be a waste of time and
judicial resources to remand this case for an evidentiary hearing concerning the reasonableness of
attorney fees which defendant has already vowed not to collect. Reversal is therefore unwarranted.
The trial court did not err in refusing to enter an order which defendant had already promised not to
enforce.
Affirmed.
/s/ Stephen J. Markman
/s/ Gary R. McDonald
/s/ Mark J. Cavanagh
1
The trial court expressly indicated its belief that Dr. Packer’s initial testimony was the product of a
mistake on his part rather than a product of any intent to mislead or deceive the jury.
-5
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