DARNELL DUNLAP V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
DARNELL DUNLAP,
UNPUBLISHED
April 17, 2001
Plaintiff-Appellee,
and
DEPARTMENT OF SOCIAL SERVICES,
Intervening Plaintiff,
v
No. 210413
Wayne Circuit Court
LC No. 95-502402-NO
CITY OF DETROIT,
Defendant/Third-Party-Plaintiff,
and
DETROIT EDISON COMPANY,
Defendant/Third-Party
Defendant/Appellant,
and
VALTZ EXCAVATION COMPANY,
Defendant.
Before: Markey, P.J., and Doctoroff and Murphy, JJ.
MARKEY, J. (dissenting).
I respectfully dissent from the majority’s decision to affirm the trial’s disallowing the
expert testimony offered by Dr. Uzgiris. I would find that the trial court abused its discretion in
disallowing Dr. Uzgiris’ testimony; consequently, I would reverse and remand for a new trial on
that basis.
As the majority has set forth, a person may be qualified to testify by virtue of his
knowledge, skill, experience, training, or education in the subject matter of the testimony. Here,
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Dr. Uzgiris testified that he has a bachelor of science and a master of science degrees in
mechanical engineering, and doctorate degrees in both mechanical and aerospace engineering.
He was not familiar with the design or maintenance of a “Boosey valve or any similar valve,” nor
had he been involved in the design, operation, or maintenance of an underground steam system
like the one at issue. On that basis, the trial court found that Dr. Uzgiris was unqualified to
testify as an expert on the subject of the Boosey valve.
After reading relevant testimony in this trial and correlating it to the issues, I believe the
trial court’s decision was an abuse of discretion. Certainly, Dr. Uzgiris has tremendous
educational credentials, and, in my opinion, the issue involved was well within his realm of
understanding and training. Dr. Uzgiris testified that his lack of personal involvement or
familiarly with or in the design or maintenance of either a Boosey valve or any similar valve or
an underground steam system was unimportant because the valve and the components of the
steam system were “elementary” for a mechanical engineer. The critical question in MRE 702 is
whether expert testimony will aid the trier of fact in reaching the ultimate decision. The witness
must be qualified as an expert, must give the trier of fact a better understanding of the evidence
or assist in determining a fact at issue, and must be from a recognized discipline. MRE 702. I
believe that the proffered testimony, particularly when viewed in context and as it related and
compared to the expert testimony provided by defendant’s expert, more than adequately
demonstrates that Dr. Uzgiris was not only an expert in this area but also could very much have
assisted the triers of fact in reaching their ultimate decision as to what caused the water accident.
I agree with defendant’s contention that the trial court was also inconsistent in his rulings
because plaintiff’s expert, who had similar qualifications, was allowed to testify regarding the
Boosey valve and the source of water in the manhole. Again, Dr. Uzgiris’ testimony that the
check valve at issue was “elementary,” explained that a check valve is nothing more than a
simple gravity flapper that allows the flow of water to go in one direction. Dr. Uzgiris also stated
that he was competent to render an engineering opinion regarding the mechanics of the Boosey
valve.
This case is somewhat similar to that of Berryman v K Mart Corp, 193 Mich App 88; 483
NW2d 642 (1992). Berryman was a slip and fall case where the plaintiff’s proffered expert also
was not allowed to testify. The expert held a Ph.D. in experimental psychology and had
extensively researched and published in the fields of psychology, human-factors engineering, and
human perception. Id. at 98. The proffered expert had served as an expert in a number of cases
involving people who had fallen but not one specifically involving a K Mart store. Id. at 99. He
was, however, familiar with other kinds of retail stores. Id. The trial court refused to allow the
expert to testify because he had never “examined a situation” similar to the one at hand, he had
never been admitted by an expert to another court and he had not examined the scene of the
plaintiff’s accident. Id. at 97-98. On appeal, the Berryman Court found that the trial court
abused its discretion in refusing to allow this expert to testify noting that pursuant to MRE 703,
an expert’s testimony may be based on facts “perceived by or made known to him at or before the
hearing.” Id. at 99. The expert in Berryman had read depositions of the plaintiff and two of the
defendant’s employees. Id. He had, however, not actually examined the scene of the accident at
K Mart. Id.
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Certainly, the argument in support of allowing Dr. Uzgiris to testify is far stronger here.
His credentials were certainly more than appropriate to establish his expertise. He had a
plausible opinion to offer as to why there was so much water in the underground system, and he
indicated that he had “plenty of experience” with check valves because they are extremely
common and that he completely understood defendant’s steam heating system. Moreover, he
would most certainly have aided the triers of fact in deciding the issue before them: why there
was so much water underground. Refusing to allow Dr. Uzgiris to testify was in my opinion an
abuse of discretion and contrary to established law. Consequently, I would reverse and remand
for a new trial.
/s/ Jane E. Markey
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