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,
Defendants,
and
DIAMLER CHRYSLER CORPORATION, FORD
MOTOR COMPANY, GENERAL MOTORS
CORPORATION, and HONEYWELL, INC.,
formerly known as ALLIED SIGNAL
CORPORATION,
Defendants-Appellants.
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FOR PUBLICATION
January 30, 2007
9:10 a.m.
No. 257917
Wayne Circuit Court
LC No. 03-324775-NP
Official Reported Version
Before: Meter, P.J., and O'Connell and Davis, JJ.
O'CONNELL, J. (dissenting).
The sole issue in this case is whether the testimony of plaintiff 's1 expert, Dr. Lemen, is
admissible under the landmark case of Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US
579; 113 S Ct 2786; 125 L Ed 2d 469 (1993),2 and its progeny, Gilbert v DaimlerChrysler Corp,
470 Mich 749; 685 NW2d 391 (2004), General Electric Co v Joiner, 522 US 136; 118 S Ct 512;
139 L Ed 2d 508 (1997), and Kumho Tire Co, Ltd v Carmichael, 526 US 137; 119 S Ct 1167;
143 L Ed 2d 238 (1999).
According to Daubert, supra at 593, expert testimony only qualifies as admissible
"scientific knowledge" if empirical testing supports the theory or technique on which the expert
relies. Stated another way, plaintiff 's expert testimony is only relevant and admissible under
Daubert if plaintiff can establish, with the aid of empirical studies, that plaintiff 's work as a
brake mechanic caused him to contract mesothelioma.3
In the present case, both plaintiff 's expert and defendants' expert testified that no less
than 15 epidemiological studies have been conducted to determine if there is an empirically
verifiable correlation between brake grinding and mesothelioma. Both experts testified that
these studies were conducted properly in accordance with established scientific principles, and
that none of these studies established a causal connection between brake grinding and
mesothelioma.4 Dr. Lemen further testified that epidemiological studies are the best evidence for
1
Even though plaintiff Phillip R. Chapin is joined in this suit by his wife, Bernie Mae Chapin,
for the sake of clarity, I refer to Phillip Chapin as the singular plaintiff throughout this opinion.
2
Both the lead opinion and the concurring opinion initially acknowledge that the strictures set
forth in Daubert should control this case, but eventually both opinions revert back to the primary
elements found in the later-amended Davis/Frye test and fail to consider the implications of
Daubert. See People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54
App DC 46; 293 F 1013 (1923).
3
Originally there were 26 other defendants in this lawsuit. Plaintiff admits that he developed
mesothelioma as a result of being exposed to a variety of asbestos-containing products while
working at a number of different jobs from 1956 to 2002. Plaintiff has settled with the 26 other
defendants. The limited issue before this Court involves the existence of any scientific studies
that establish a correlation between automobile brake mechanics and an increased risk of
contracting mesothelioma. The record reflects that scientific studies have found a direct
correlation between the exposure to asbestos common in plaintiff 's other jobs and an increased
risk of contracting mesothelioma. However, plaintiff fails to point to any scientific studies that
demonstrate a correlation between mesothelioma and grinding brakes.
4
This dearth of supporting empirical data is accentuated by two other glaring deficiencies in
plaintiff 's proofs. First, causation in asbestos cases necessarily relates to the inhalation of
minute particles, so unlike many tort cases, there will never be eyewitness testimony of
causation, and the plaintiffs are forced to establish the legal element of proximate cause through
expert testimony. Yet Dr. Lemen never refuted the testimony of defendants' expert, who
(continued…)
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causation, and Dr. Goodman testified that epidemiological studies are the only way to establish
causation.5 Under Daubert, plaintiff bears the initial responsibility of establishing that scientific
studies support his expert's anticipated testimony. Simply put, other than Dr. Lemen's ipse dixit
testimony opining that such a causal relationship existed, the record lacks any scientific evidence
suggesting that there is a correlation between brake grinding and mesothelioma. Therefore,
under Daubert, Dr. Lemen's testimony is inadmissible. See also Kumho Tire Co, supra at 151
(Breyer, J.), and 158-159 (Scalia, J., concurring).
I would reverse the decision of the trial court.
/s/ Peter D. O'Connell
(…continued)
provided evidence that the brake-grinding process essentially prevents harmful asbestos fibers
from being discharged into the air that a brake grinder inhales. Second, the irrefutable evidence
indicates that plaintiff 's later occupations exposed him to an atmosphere certainly containing the
harmful asbestos fibers that, when inhaled in sufficient quantities, lead to the contraction of
mesothelioma. Therefore, this is not a case in which two or more equally culpable and probable
causes combine to injure a single plaintiff, but is instead an attempt to hold as many "pockets"
liable as possible, no matter how attenuated their probable relationship to the injury may be.
5
It bears repeating that this is not a case where there are no epidemiological studies available.
Both experts testified that there are numerous epidemiological studies available, and that none of
them substantiates plaintiff 's claims. I respectfully disagree with the concurring opinion's
exclusive reliance on the trial judge's expertise. The record demonstrates that the trial judge was
not suggesting that empirical data had already established the necessary causation in other cases,
but instead merely noted that other parties in other cases had taken the correlation between brake
grinding and mesothelioma for granted. Any reliance on such a presumption in this case
amounts to the application of a rogue mutation of res judicata and forecloses the courts' ability to
adapt to scientific innovation and new discoveries. Accordingly, I respectfully conclude that
bare reliance on a judge's experience, without further justification, contravenes the purposes of
Daubert and spoils the entire analysis.
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