PHILLIP R CHAPIN V A & L PARTS INC
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STATE OF MICHIGAN
COURT OF APPEALS
PHILLIP R. CHAPIN and BERNIE MAE CHAPIN,
Plaintiffs-Appellees,
v
A & L PARTS, INC., AMCHEM PRODUCTS,
AMERICAN STANDARD, BONDEX
INTERNATIONAL, INC., BORG WARNER
CORPORATION, CARRIER CORPORATION,
DAP, INC., DANA CORPORATION, DURO DYNE
CORPORATION, GEORGIA PACIFIC
CORPORATION, GOODRICH CORPORATION,
HERCULES CHEMICAL COMPANY,
INDIANHEAD INDUSTRIES, INC., KELSEY
HAYES COMPANY, MCCORD CORPORATION,
METROPOLITAN LIFE INSURANCE COMPANY,
PARKER HANNIFIN CORPORATION, PNEUMO
ABEX CORPORATION, ROYAL INDUSTRIES,
INC., AII ACQUISITION CORPORATION,
CARQUEST AUTO PARTS OF PINKNEY
MICHIGAN, INC., GEORGE FAN SERVICE, INC.
& ALL EQUIPMENT COMPANY, STANDCO
INDUSTRIES, INC., and MICHIGAN MEDICAL
COUNSEL,
FOR PUBLICATION
January 30, 2007
9:10 a.m.
No. 257917
Wayne Circuit Court
LC No. 03-324775-NP
Official Reported Version
Defendants,
and
DIAMLERCHRYSLER CORPORATION, FORD
MOTOR COMPANY, GENERAL MOTORS
CORPORATION, and HONEYWELL, INC., formerly
known as ALLIED SIGNAL CORPORATION,
Defendants-Appellants.
Before: Meter, P.J., and O'Connell and Davis, JJ.
-1-
DAVIS, J.
Defendants DaimlerChrysler Corporation, Ford Motor Company, General Motors
Corporation, and Honeywell, Inc., appeal by leave granted a stipulated order dismissing this case
with prejudice.1 This appeal arises from the trial court's decision to admit plaintiffs Phillip R.
and Bernie M. Chapin's expert's testimony. Defendants filed a motion in limine to exclude that
testimony, and the trial court denied that motion. This Court, Wilder, P.J., and Kelly and
Murray, JJ., vacated the order denying the motion and remanded for an evidentiary hearing.
Unpublished order of the Court of Appeals, entered May 19, 2004 (Docket No. 255415). The
trial court again ruled that plaintiffs' expert's testimony was admissible. The matter then went to
trial, but after little more than opening argument, the parties entered into a consent judgment that
was made subject to defendants' right to challenge the evidentiary ruling on appeal.
This case arises out of plaintiff Phillip R. Chapin's diagnosis with mesothelioma at the
age of 60, after having spent 45 years working as an automobile brake mechanic. Part of his job
involved grinding brake linings that contained chrysotile asbestos. At issue is whether plaintiffs'
expert presented scientifically reliable, and therefore legally admissible, evidence drawing a
causal connection between mesothelioma and inhalation of brake-lining dust. We affirm the trial
court's ruling in limine.
This Court reviews for an abuse of discretion a trial court's determination of the
qualifications of a proposed expert witness. Woodard v Custer, 476 Mich 545, 557; 719 NW2d
842 (2006). This Court likewise reviews for an abuse of discretion a trial court's decision
whether to admit evidence, although admission of legally inadmissible evidence is necessarily an
abuse of discretion. Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). The
interpretation of an evidentiary rule is reviewed de novo "in the same manner as the examination
of the meaning of a court rule or a statute." Waknin v Chamberlain, 467 Mich 329, 332; 653
NW2d 176 (2002). Rules of evidence are construed in the same way as statutes. Craig, supra at
78.
Before a trial court may admit any expert testimony, the trial court is required by MRE
702 "to ensure that each aspect of an expert witness's proffered testimony—including the data
underlying the expert's theories and the methodology by which the expert draws conclusions
from that date—is reliable." Gilbert v DaimlerChrysler Corp, 470 Mich 749, 779-783; 685
NW2d 391 (2004). "While the exercise of this gatekeeper role is within a court's discretion, a
trial judge may neither 'abandon' this obligation nor 'perform the function inadequately.'" Id.,
780, quoting Kumho Tire Co Ltd v Carmichael, 526 US 137, 158-159; 119 S Ct 1167; 143 L Ed
2d 238 (1999) (Scalia, J., concurring). "The plain language of [MCL 600.2955(1)] establishes
the Legislature's intent to assign the trial court the role of determining, pursuant to the Daubert[
1
Although numerous other defendants were named below, it appears that plaintiffs' claims
against them have all been settled or dismissed.
-2-
v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993)]
criteria, whether proposed scientific opinion is sufficiently reliable for jury consideration."
Greathouse v Rhodes, 242 Mich App 221, 238; 618 NW2d 106 (2000), rev'd on other grounds
465 Mich 885 (2001) (emphasis in original). The United States Supreme Court emphasized that
the inquiry is flexible and focused "solely on principles and methodology" rather than ultimate
conclusions, and its "overarching subject is the scientific validity—and thus the evidentiary
relevance and reliability—of the principles that underlie a proposed submission." Daubert,
supra at 594-595.
The specific question presented to us in this appeal is whether the expert opinion
testimony given by plaintiffs' expert, Dr. Richard Allen Lemen, was admissible as a matter of
law under MRE 702 and MCL 600.2955(1), which govern the inquiry into whether expert
evidence is scientifically reliable.2 I would hold today that the trial court's role as gatekeeper
does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve
genuine scientific disputes. The facts that an opinion held by a properly qualified expert is not
shared by all others in the field or that there exists some conflicting evidence supporting and
opposing the opinion do not necessarily render the opinion "unreliable." A trial court does not
abuse its discretion by nevertheless admitting the expert opinion, as long as the opinion is
rationally derived from a sound foundation.
MRE 702 provides:
If the court determines that 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 if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
And MCL 600.2955(1) provides:
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
2
I do not believe, unlike the dissent, that the admissibility of Dr. Lemen's testimony is in any
way affected by plaintiffs' possible reasons for having initially joined the now-dismissed
defendants in the action below. Presuming, as the dissent asserts, that plaintiff Phillip Chapin
was more likely to have contracted mesothelioma from elsewhere, Dr. Lemen explicitly testified
that he had no knowledge of plaintiff or his particular circumstances. The admissibility of his
testimony turns solely on whether it, taken by itself, satisfies the pertinent criteria—not whether
plaintiff 's case itself, when facts extraneous to Dr. Lemen's testimony are considered, might or
might not be a strong one when presented to the jury.
-3-
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:
(a) Whether the opinion and its basis have been subjected to scientific
testing and replication.
(b) Whether the opinion and its basis have been subjected to peer review
publication.
(c) 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.
(d) The known or potential error rate of the opinion and its basis.
(e) 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.
(f) 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.
(g) Whether the opinion or methodology is relied upon by experts outside
of the context of litigation.
Defendants do not contend that Dr. Lemen's opinion would not "assist the trier of fact" under
either the court rule or the statute, a determination that the United States Supreme Court has
explained "goes primarily to relevance." Daubert, supra at 591. Furthermore, whether "the
witness has applied the principles and methods reliably to the facts of the case," does not seem
applicable to this case. Dr. Lemen explained that he had no knowledge of the specific plaintiff
in this matter, and the issue seems to be only whether in the abstract exposure to automobile
brake dust is or can be a causal factor of mesothelioma.
When he gave his testimony, Dr. Lemen was a private consultant in the fields of public
health, occupational health, and epidemiology; he had retired from the United States Public
Health Service, where he held the rank of Assistant Surgeon General of the United States and
was also the Deputy Director of the National Institute for Occupational Safety and Health
(NIOSH). He had authored approximately two dozen peer-reviewed publications relating to
asbestos disease and epidemiology, and he "had been involved in every recommendation for
asbestos that NIOSH or [sic] had made to OSHA [Occupational Safety and Health
Administration]" between NIOSH's first asbestos document in 1972 and Dr. Lemen's retirement
in 1996. Dr. Lemen's other credentials and experience included a professorship, an adjunct
professorship, a Ph.D. in epidemiology, graduate work in toxicology and occupational medicine,
providing testimony to the United States Congress regarding asbestos and occupational disease,
-4-
numerous peer-reviewed journal publications and scientific lectures around the world, and work
with some of the most-respected scientists in his field.
Defendants' expert, Dr. Michael Goodman, was an assistant professor at the Department
of Epidemiology at Emory School of Public Health, and he was a consultant to and former
employee of a company called Exponent, "a consulting research organization." His testimony
was provided in that role as an Exponent employee. He had been a pediatrician before 1994 but
had obtained a master's degree in public health and took a number of courses in epidemiology
and biostatistics. Dr. Goodman also coauthored two papers along with others from Exponent.
Dr. Goodman explained that his "area of expertise" did not include either "case reports in
general" or case reports dealing with asbestos disease, and he further stated that he was not
interested in the history of science, nor was he a medical expert.
The experts agreed, either explicitly or implicitly, on a number of salient facts. Both
testified that the science of epidemiology concerns the identification of the causes of diseases
and ways to prevent them. Both experts agreed that the only known cause of mesothelioma was
exposure to asbestos, although both also indicated that some cases of mesothelioma could not be
traced to any known asbestos exposure. Both experts agreed that asbestos affects all individuals
who are exposed to it in essentially the same way, and the important considerations were how
much exposure one suffers and what kind of asbestos to which one is exposed. Both experts
agreed that there are two general types of asbestos fibers: shorter serpentine/chrysotile fibers
and longer amphibole fibers. Amphibole fibers are significantly more hazardous than chrysotile
fibers, but both kinds cause mesothelioma, and the more asbestos one inhales the greater the risk.
These facts are not in dispute.
Dr. Lemen further testified that there was no known "safe" dose of asbestos, and the
World Health Organization's International Program for Chemical Safety had particularly found
in 1998 that there was no safe level for chrysotile asbestos, although Dr. Lemen opined that there
probably was such a level. OSHA implemented a standard for exposure of 0.1 fibers per cubic
centimeter (cc),3 and Dr. Lemen testified that he was personally involved in setting that standard.
However, Dr. Lemen explained that OSHA's exposure level was not recognized as safe, but it
was chosen because 0.1 fibers per cc was the lowest level that could actually and feasibly be
measured with the analytical methodology available. The experts agreed that a given
individual's job is only relevant for determining how much exposure to asbestos that individual
will suffer. It is undisputed that automobile brake mechanics are exposed to airborne chrysotile
asbestos fibers from inhaling the dust produced by grinding brake linings,4 although the average
3
It was not explained whether this refers to cubic centimeters of air or of some other substance.
4
The dissent asserts that "Dr. Lemen never refuted the testimony of defendants' expert, who
provided evidence that the brake-grinding process essentially prevents harmful asbestos fibers
from bring discharged into the air that a brake grinder inhales." Post at ___ n 4. This is an
incorrect reading of the testimony. It is in fact undisputed that the asbestos contained in brake
linings degrades into a harmless substance called forsterite during normal use of the brakes, so
brake dust produced during braking contains essentially no asbestos. However, the degradation
(continued…)
-5-
dosage is below OSHA's standard. Defendants provided no expert evidence tending to suggest
that modern science is aware of a safe exposure level to chrysotile asbestos. Defendants pointed
out, and Dr. Lemen agreed, that chrysotile fibers do not accumulate in the lungs, but Dr. Lemen
explained that many of them migrate elsewhere in the body and that mesothelioma was a disease
of the lining of the lungs, not technically a disease of the lungs themselves, so studies measuring
the body burden only in the lungs do "not tell the whole story."
The experts' only serious point of contention was over how one could draw causal
connections. Dr. Goodman asserted that association between a pathogen and a disease can only
be established through controlled epidemiological studies,5 never through case reports, and case
reports are not informative in the presence of epidemiological evidence. Dr. Goodman further
stated that case reports were "a very old form of conveying information," but he considered them
irrelevant because they "don't lend themselves to statistical analysis." In contrast, Dr. Lemen
explained that epidemiology relied on a number of tools, including case reports, epidemiological
cohort studies, biological plausibility of materials, animal studies, and toxicological studies. He
further explained that establishing cause and effect required looking at many issues, so one "can't
rely simply upon say epidemiology." Dr. Lemen asserted that once a substance is known to be
toxic, it would be inappropriate to conduct epidemiological studies specifically looking for
deaths in a given profession, which is why the safety standards are based on exposure and not
job title. Dr. Lemen opined that epidemiological studies in the 1930s had established beyond
any reasonable doubt that asbestos causes asbestosis and that studies in the 1960s had
established beyond any reasonable doubt that asbestos causes mesothelioma. He stated that
studies have continued to confirm that asbestos causes mesothelioma.
Dr. Lemen explained that recommendations and publications issued by governmental
organizations such as the Environmental Protection Agency (EPA), NIOSH, OSHA, and so on
were not themselves epidemiological studies, but rather were based on all available scientific
literature, including toxicological, environmental, epidemiological, and exposure studies,
compiled together and analyzed in the aggregate.
He stated that case studies and
epidemiological studies are different, but the most important thing was a study's methodology,
which generally refers to how the study is conducted. Dr. Lemen stated that the most-adopted
methodology for determining causation was published in 1965 by Sir Bradford Hill, a British
(…continued)
requires temperatures in excess of 600 to 800 degrees Celsius, which are achieved during
braking but not during maintenance grinding operations. Dr. Lemen explained that the lack of
asbestos in brake dust produced by braking is only relevant to urban air pollution, not to asbestos
levels in a machine shop, and Dr. Goodman did not dispute this point.
5
The two most significant kinds are "cohort studies" and "case control studies." Cohort studies
are expensive and involve following groups, or "cohorts," of individuals both with and without
certain characteristics over a number of years to see whether they display any differences
pertinent to a given hypothesis. Case control studies are in a sense the opposite: they start with
a group that already has a given condition, and they then analyze that group alongside an
otherwise-similar group without that condition to look for differences pertinent to a given
hypothesis. Another kind is a "proportion mortality ratio" study, which can be used to compare
groups to the general population.
-6-
statistician who was knighted for his work in public health. The Sir Bradford Hill methodology
"goes much beyond just using epidemiological data" and is primarily intended to determine
cause and effect for the purpose of making decisions that will ideally prevent unnecessary
deaths.
The Sir Bradford Hill methodology, as explained by Dr. Lemen, contains nine criteria, all
of which should be considered when determining causation. "Strength of association" means a
sufficiently strong association between a substance and an effect can permit conclusions without
statistical epidemiologic data. For example, no epidemiological studies were needed to show
that cyanide gas kills film-recovery plant workers when they are exposed to it. Dr. Lemen
explained that epidemiological evidence "is clearly the best that we've got" and "it leaves little
doubt" when it exists, but it was not needed to draw conclusions on which to base preventive
actions. "Temporality" means that cause must precede effect or there can be no association.
"Biologic gradient," or "response gradient," refers to basic toxicological knowledge that more
exposure increases the risk of disease, as asbestos does. "Consistency" means a given effect
must "be observed repeatedly in multiple studies," preferably different kinds of studies, and
"specificity" means an agent always causes the same kind or kinds of disease. It is undisputed
that asbestos consistently causes the same few diseases. "Biological plausibility" looks at
whether a theory of causation comports with other known facts, such as whether an agent can
actually affect a certain body part, and asbestos fits this criterion. "Coherence" is similar to
biological plausibility in that it checks for inconsistency with other theories of causation. Dr.
Lemen noted that the animal studies and the biological studies on asbestos fit together.
"Experimental evidence" could include animal and laboratory studies in the case of asbestos, and
the experimental evidence also connected asbestos to the same diseases. It would, of course, be
unethical to perform clinical experiments on people by deliberately exposing them to asbestos to
confirm its toxicity, no matter how probative such an experiment might be.
The final factor in the Sir Bradford Hill methodology is "analogy." Dr. Lemen explained
that, as applied to the circumstances of this case, "analogy" looks at whether automobile brake
workers are actually exposed to enough of the agent under discussion to cause disease. Dr.
Lemen again stated that there was no known safe exposure level to asbestos below which it
would not cause mesothelioma, and studies exist showing that automobile brake workers are
exposed to asbestos, thereby indicating a cause and effect relationship. On the basis of all of the
foregoing factors, combined with the known asbestos exposure and "thousands of
epidemiological studies and animal studies and toxicological studies," Dr. Lemen concluded that
there was ample scientific evidence to link mesothelioma to occupational exposure to asbestoscontaining brake products. Dr. Lemen further pointed out that none of the factors was
dispositive by itself, but the best way to determine causation was to consider them all and to
further consider reports issued by governments and health agencies or organizations.
The experts agreed that a number of epidemiological studies had analyzed mesothelioma
among automobile brake mechanics and failed to show an association between asbestos-based
automobile brake products and mesothelioma. The significance of these epidemiological studies
is the primary point of departure between the experts. Dr. Goodman concluded that, in effect,
these studies conclusively show that Dr. Lemen's opinion is "junk science," no matter how
plausible the opinion might be. Indeed, Dr. Goodman opined that the results of the studies are
-7-
"surprising" because brakes are known to contain asbestos and brake workers are known to be
exposed to brake dust while working on brakes.6 He stated that there "must be an explanation,"
but he thought it was highly unlikely that the explanation was that the studies were flawed. Dr.
Goodman stated that he did not consider case reports in drawing his conclusions because he did
not consider them informative when epidemiological evidence was available, and he opined that
case reports could not establish association.
Dr. Lemen, however, regarded the epidemiological studies as only one consideration
among many.7 He further asserted that the epidemiological studies suffered from a variety of
self-acknowledged limitations, and in any event they did not constitute evidence that asbestos
brake products would not cause mesothelioma. He explained that some of the studies had been
too small or they had been too diluted in their sampling, and a study purporting to negate a wellfounded causal link would need to feature sufficient latency, exposure, and sample size to ensure
that the results do not stem from mere chance.8 Dr. Lemen noted that all the other factors
outlined in the Sir Bradford Hill methodology mandated the conclusion that asbestos-containing
brake products caused mesothelioma, and the epidemiological studies did not provide any reason
to change that conclusion. Dr. Lemen also stated that a mesothelioma registry in Australia had
found automobile brake workers to have ten times more mesothelioma than the general
6
The dissent states that "the record lacks any scientific evidence suggesting that there is a
correlation between brake grinding and mesothelioma." Post at ___. Dr. Goodman's testimony
was that brake grinding does not cause mesothelioma. However, if that finding is "surprising,"
then even Dr. Goodman must have perceived some reliable scientific support, at least until the
disputed epidemiological studies were performed, that would suggest such a causal connection.
7
Despite the fact that this was the primary dispute between the experts, the dissent concludes
that Dr. Goodman's position is legally correct, citing Daubert, supra at 593. That portion of
Daubert only states that the distinguishing characteristic of science is that its hypotheses are
subjected to empirical testing. "Empirical" merely means that knowledge is derived from
observed tests rather than pure conjecture. Our reading of the record is that both experts
presented testimony regarding scientific knowledge that had, in fact, been subjected to testing;
they disputed how well it had been tested and how relevant the results were. I see nothing in
Daubert to suggest that testing a hypothesis necessarily requires any particular kind of test.
8
Although not explored in depth at the evidentiary hearing, the experts referred to "statistical
significance," which our own research reveals to be a measure of how likely it is that a given
observation occurred by accident. It is not a measure of how "practically significant" or perhaps
how impressive, in the lay sense, a result is. Relating to this, the dissent appears to conclude
that, because the studies attempted to draw connections between automobile brake work and
mesothelioma, they were specifically intended as studies of automobile brake workers. In fact,
at least some of those who conducted the studies, by their own admissions as Dr. Lemen noted,
focused on individuals who worked more broadly as automobile mechanics or suffered from
other sampling problems. The dissent also concludes that the experts agreed that the studies
were properly conducted, despite Dr. Lemen's testimony that most of them were too limited in
one way or another to be useful.
-8-
population, although the experts agreed that the registry was not subject to statistical analysis.9
Dr. Lemen concluded that "as I sit here today, no government entity that I'm aware of has
changed their [sic] recommendations or their regulations to eliminate brake workers, which is the
standard that I would go by to say it's not been accepted in the scientific, regulatory, and medical
community."
Although defendants raise individual arguments under each factor enumerated in MCL
600.2955(1), all but two are premised on the epidemiological studies. The trial court correctly
recognized that Dr. Lemen's opinion had no error rate, but the key point of defendants' argument
is that Dr. Lemen's opinion is wrong, not that it has an "error rate." Furthermore, although MCL
600.2955(1) explicitly requires the trial court to consider all seven of the factors it enumerates,
the statute does not require that each and every one of those seven factors must favor the
proffered testimony. Defendants also contend that Dr. Lemen's opinion is significantly broader
than the opinion expressed in his peer-reviewed article, thus making the opinion "not subjected
to peer review publication." The article states that the studies are "equivocal" and "by no means
exonerate" a causal relationship between brake work and mesothelioma, which, taken out of
context, indeed fails to constitute affirmative support for such a causal connection. However,
that conclusion was stated in the context of other evidence tending to support a causal link
between mesothelioma and grinding asbestos-containing brake linings.
A dispute between the experts over the significance or meaning of a publication is not the
same as an absolute failure to publish. And again, defendants contend that there are no
published epidemiological studies supporting Dr. Lemen's opinion. Finally, the bases for Dr.
Lemen's opinion—specifically, that chrysotile asbestos causes mesothelioma and that automobile
brake workers are exposed to chrysotile asbestos released during brake work—were subjected to
peer-review testing and are facts that defendants do not contest. Otherwise, defendants' criticism
of five of the seven factors is based solely on the epidemiological studies that fail to support Dr.
Lemen's conclusion. In effect, defendants contend that, no matter how reasonable Dr. Lemen's
opinion is, it has simply been proven wrong, and as such it no longer constitutes "recognized
scientific knowledge."
When reduced to their essential points, Dr. Goodman's opinion is that the only way to
establish causation is by performing analyses that have control groups, whereas Dr. Lemen's
opinion is that it is proper to look at all sources of data. Dr. Goodman explained that case
reports, although useful for forming hypotheses, can easily produce wrong results because of
coincidence. Dr. Lemen explained that a sufficiently strong and consistent result from case
reports and other consistent data can lead one to reliable conclusions.
The fact that two scientists value the available research differently and ascribe different
significance to that research does not necessarily make either of their conclusions unreliable.
9
The dissent concludes that this registry does not even rise to the level of "any scientific
evidence."
-9-
Indeed, science is, at its heart, itself an ongoing search for truth, with new discoveries occurring
daily, and with regular disagreements between even the most respected members of any given
field. A Daubert-type hearing of this kind is not a judicial search for truth. The courts are
unlikely to be capable of achieving a degree of scientific knowledge that scientists cannot. An
evidentiary hearing under MRE 702 and MCL 600.2955 is merely a threshold inquiry to ensure
that the trier of fact is not called on to rely in whole or in part on an expert opinion that is only
masquerading as science. The courts are not in the business of resolving scientific disputes. The
only proper role of a trial court at a Daubert hearing is to filter out expert evidence that is
unreliable, not to admit only evidence that is unassailable. The inquiry is not into whether an
expert's opinion is necessarily correct or universally accepted. The inquiry is into whether the
opinion is rationally derived from a sound foundation. See Nelson v American Sterilizer Co (On
Remand), 223 Mich App 485, 491-492; 566 NW2d 671 (1997).
Dr. Lemen conceded that epidemiological studies are the "best" evidence for causation.
However, Dr. Lemen also pointed out that the "epidemiology textbooks" are divided on the issue
whether case control studies are "the best" or merely useful tools. The experts disagreed over
the need for studies that can be subjected to statistical analysis where other strong evidence is
available. Given the numerous points of agreement, it appears that all the evidence other than
the epidemiological studies supports Dr. Lemen's opinion. This case does not present a situation
involving questionable or absent epidemiological evidence coupled with questionable or absent
other evidence, see Craig, supra at 83-85; Nelson, supra at 495-498, or coupled with an "expert"
who actually lacks the requisite qualifications. See Gilbert, supra at 783-791. Rather, this is a
case involving strong and undisputed support for Dr. Lemen's position, coupled with fairly
consistent yet potentially questionable contradictory evidence, depending on which expert is to
be believed. Although clearly not universally accepted, and although unsupported by
epidemiological studies that may or may not be flawed, Dr. Lemen's opinion is certainly
objective, rational, and based on sound and trustworthy scientific literature. The trial court was
faced with a disagreement between two experts over the significance of epidemiological studies.
This is precisely the situation in which the trial court is called on to exercise discretion, and
where this Court should not thereafter interfere.
We further agree with the New Jersey courts' resolution of the same issue. Whether
automobile brake dust causes mesothelioma is the central issue in this case. Both parties
presented scientifically sound expert testimony tending to support their respective positions.
Therefore, deciding this case at an evidentiary hearing, depriving the jury of the opportunity to
fulfill its proper role as fact-finder, would be inappropriate. See Becker v Baron Bros, Coliseum
Auto Parts, Inc, 138 NJ 145, 154-159; 649 A2d 613 (1994). The trial court properly found Dr.
Lemen's opinion reliable and admitted it for the jury's consideration.
Affirmed.
/s/ Alton T. Davis
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