LINDA M GILBERT V DAIMLERCHRYSLER CORP
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 22, 2004
LINDA M. GILBERT,
Plaintiff-Appellee,
v
No. 122457
DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
In this appeal, defendant seeks reversal or remittitur
of the largest recorded compensatory award for a singleplaintiff
sexual
harassment
suit
in
the
history
of
the
United States.
The $21 million verdict awarded, according
to
barely
plaintiff,
compensates
her
for
the
lasting
effects of the sexual harassment she endured as an employee
of
defendant,
DaimlerChrysler,
by
whom
employed and earning almost $100,000 a year.
during
her
trial
that
defendant’s
she
is
still
She contended
failure
to
deal
adequately with sexual harassment in her plant led to a
1
permanent change in her “brain chemistry” and a relapse
into
substance
abuse
and
depression,
and
that
these
conditions will soon lead to her untimely and excruciating
death.
The foundation for this theory of recovery was laid by
the expert opinion testimony of a social worker who had a
longstanding relationship with plaintiff’s counsel.
witness
not
only
lacked
any
training,
This
education,
or
experience in medicine, but also testified falsely about
his credentials.
Nevertheless, plaintiff asked the jury to
treat this witness’s testimony as a “prognosis,” and to
compensate
plaintiff
for
the
loss
of
her
health
and,
eventually, her life.
Plaintiff’s counsel evoked images of
physical
torture,
abuse
survivors
of
and
the
compared
Holocaust,
and
his
argued
client
that
to
defendant
DaimlerChrysler thought of itself as “God Almighty,” exempt
from
the
legal
norms
defendant’s
view,
inflammatory
rhetoric,
that
the
govern
verdict
others.
was
unscientific
Thus,
the
product
“expert”
in
of
testimony,
fraud on the court, and attorney misconduct.
We
whether
granted
the
leave
verdict
to
was
appeal
a
in
order
legitimate
to
determine
estimate
of
plaintiff’s losses, as plaintiff contends, or whether it
was,
as
defendant
argues,
an
2
unjust,
excessive
award
procured through systematic misconduct by plaintiff’s trial
counsel and supported by dubious evidence.
The majority
and the dissent agree on one fundamental fact: the verdict
rendered in this case is excessive and cannot be affirmed.1
A
careful
plaintiff’s
review
trial
of
counsel
the
engaged
record
in
a
reveals
sustained
that
and
deliberate effort to divert the jury’s attention from the
facts and the law.
In their stead, counsel interposed
1
We differ not, as the dissent suggests, because we
believe that the plaintiff has failed to make out a case of
sexual harassment worthy of a verdict.
We differ instead
because we believe that this verdict is excessive and
because we have concluded that the record supporting this
verdict is the result of plaintiff counsel's repeated
invitation
to
the
jury
to
exercise
its
collective
prejudices in preference to fairly compensating plaintiff
on the evidence presented. For all of the reasons detailed
in this majority opinion, we conclude that the repeated,
explicit and inappropriate references to the Holocaust,
defendant's German national origin, and defendant's status
as a corporation cannot be tolerated in Michigan courts any
more than in our society at large.
The people have declared in our Constitution that
"equal protection of the laws" shall not be denied on the
basis of national origin.
Const 1963, art 1, § 2.
See
also, the Michigan Civil Rights Act, MCL 37.2101 et seq.
The observance of this fundamental principle cannot stop at
the door of the courthouse.
Indeed, it is within the
courthouse that we ought be most concerned that the merits
of a party's cause, not its alienage or status, should
remain the exclusive focus of a jury's deliberations.
Thus, while we hold no brief for the inadequacies of
defendant's counsel that the dissent has taken pains to
note, defendant was entitled to a trial free of naked
appeals to entice the jury to consider its passions and
prejudice rather than the evidence.
3
misleading argument, prejudice-baiting rhetoric, and pleas
for
punitive
damages.
This
rhetoric
had
its
intended
result: the jury’s verdict unmistakably reflects passion
rather than reason and prejudice rather than impartiality.
We
conclude
justification
for
that
the
denying
trial
defendant’s
for a new trial under MCR 2.611.
court
lacked
postverdict
any
motion
Thus, the trial court
abused its discretion in denying defendant’s motion for a
new trial.
We reverse, and we remand to the trial court
for further proceedings consistent with this opinion.
I.
FACTS AND PROCEDURAL HISTORY
It is undisputed that plaintiff, Linda Gilbert, has
long
waged
a
losing
battle
with
substance
abuse.
Her
personal struggles were thoroughly documented in medical
records
that
plaintiff
introduced
at
trial
in
order
to
establish damages.
According to those records, Ms. Gilbert
began
fourteen
drinking
at
twenty years of age.
and
began
using
cocaine
at
Most of her adult life has since been
marked by excessive drinking.
At one point during her
employment with defendant, she reported to her substance
abuse counselors that she was consuming a pint to one-fifth
gallon of alcohol a day.
during
her
employment
Her cocaine use also continued
with
defendant,
4
as
documented
by
records
from
St.
John
Hospital
and
Sacred
Heart
Rehabilitation Center.
Ms. Gilbert sought professional assistance on a number
of occasions and has been treated on both an inpatient and
outpatient basis for substance abuse.
On the basis of the
testimony at trial, however, it appears that none of these
treatments
has
been
entirely
successful.
Indeed,
the
foundation of plaintiff’s claim for $140 million in damages
was the assertion that plaintiff’s substance abuse would
continue until it resulted in her death.
Plaintiff’s
personal
began
work
life
difficulties.
an
apprenticeship
millwright.
contrasts
In
the
to
train
markedly
mid-eighties,
for
a
with
her
plaintiff
career
as
a
By 1990, plaintiff had become a journeyman
millwright and was hired two years later by the Chrysler
Corporation.2
work
at
Plaintiff was the first female millwright to
Chrysler’s
Jefferson
North
Assembly
Plant
in
Detroit.
To our knowledge, plaintiff continues to work for
defendant
and,
according
to
her
attorney,
earns
“nearly
$100,000 per year” with overtime pay.
2
Chrysler was a corporate predecessor of defendant
DaimlerChrysler.
In 1998, Chrysler merged with Daimler
Benz AG to form DaimlerChrysler.
DaimlerChrysler is the
named defendant in this action.
5
Plaintiff
action
that
initiated
defendant
against
a
hostile
Jefferson
North
reported
two
the
on
work
present
March
environment
plant.
specific
At
harassment
1994,
25,
complaining
existed
that
instances
sexual
in
time,
of
defendant’s
plaintiff
harassment
had
through
defendant’s formal discrimination reporting procedure.
The
first incident took place on May 22, 1993, a little over a
year
after
plaintiff
began
working
for
defendant.
Plaintiff reported that she found a lewd cartoon taped to
her toolbox.
It depicted a woman in a bar engaged in an
“arm-wrestling” match with a man’s penis.
Plaintiff’s name
was written above the woman in the cartoon, and the name of
a coworker was written on the man whose penis was being
wrestled.3
After
plaintiff’s
oral
plaintiff’s
cartoon,
receiving
supervisor
and
apologized
to
condone
such
problem
by
plaintiff,
action”
speaking
report
area
that
defendant
that
they
would
with
employees
in
this
coordinator
stated
and
of
“did
not
address
the
the
area
and
distributing copies of defendant’s written policy against
3
When plaintiff described the cartoon in a written
report requested by defendant, she wrote that “[t]he woman
was bare-breasted and about to perform fellatio.
I was
named as the woman. I was extremely insulted and degraded.
The insinuation that this happens between myself and a man
I work with everyday is humiliating.”
6
sexual harassment.
employee
several
in
Chrysler’s
other
plaintiff’s
Defendant’s internal memo notes that an
human
employees
area
and
resources
spoke
with
distributed
department
the
the
workers
company’s
and
in
sexual
harassment guidelines following plaintiff’s report.
The second reported incident took place on June 5, 1993,
when plaintiff found a Polaroid photograph of a penis on
her
toolbox.
picture.
complaint
She
informed
Defendant’s
indicates
her
internal
that
its
supervisor
memo
about
the
concerning
the
supervisory
employees
apologized to plaintiff and reassured her that “[Chrysler
did] not approve of such action, and that [Chrysler was]
doing everything possible to prevent such harassment.”
On
the
basis
of
these
two
incidents,
plaintiff
initiated a lawsuit against defendant alleging breach of
contract, violations of the Michigan Civil Rights Act, MCL
37.2101 et seq., and negligence in addressing plaintiff’s
concerns about sexual harassment in the workplace.4
After filing her lawsuit, plaintiff formally reported
to management several other incidents of harassment that
occurred while the suit was pending.
4
Plaintiff reported
The breach of contract and negligence claims were
omitted from the pretrial order and were not presented to
the jury.
7
that,
on
entitled
October
“Highway
10,
1994,
Signs
she
You
found
Should
a
vulgar
Know”
taped
cartoon
to
her
locker;5 she also reported that she had found an article by
“Dr.
Ruth”
response,
taped
Maya
to
her
Baker,
a
locker
human
one
week
resources
earlier.6
In
facilitator
for
defendant, personally patrolled plaintiff’s work area on
occasion and also asked union leaders to share with union
members
that
the
responsible
party
could
be
terminated.
Next, plaintiff reported that on March 12, 1995, she found
a lewd and misogynistic “poem” on a bulletin board in a
work area adjacent to hers.7
Defendant investigated these
latter two incidents and, being unable to determine the
responsible party, removed the bulletin board.
Finally,
on
September
2,
1997,
plaintiff
formally
reported that a coworker made references to his “big meat”
in front of her.
In response to plaintiff’s complaint
5
The cartoon contains a number of lewd drawings, each
apparently meant sexually to illustrate “highway signs”
such as “Dead End” and “Men at Work.”
6
The article by columnist Dr. Ruth Westheimer was a
response to a man complaining that his penis was sore from
having sexual intercourse too frequently.
7
The “poem” is reproduced in the Court of Appeals’
opinion.
Unpublished opinion per curiam, issued July 30,
2002 (Docket No. 227392), pp 6-7.
8
about her coworker’s apparent reference to his genitals,
defendant reprimanded the responsible employee.
These are the only sexual harassment incidents that
plaintiff
made
procedures
However,
known
to
established
plaintiff
defendant
by
through
defendant
contends
that
for
the
such
defendant
formal
matters.
had
actual
notice of other incidents because of her description of
those incidents during her deposition testimony given after
the
commencement
of
this
suit
and
that
defendant
had
“constructive notice” of other incidents.8
Before
regarding
hearing
trial,
incidents
argument
defendant
that
on
moved
were
this
to
never
motion,
exclude
“evidence
reported.”
the
court
After
denied
defendant’s request and admitted testimony and evidence on
these unreported incidents.
8
Plaintiff testified, for example, that on her first day
of work a coworker mentioned that he would like to hold a
ladder for plaintiff if she were wearing a dress; that a
coworker called her a “bitch” during a card game; that her
toolbox was “blocked” when coworkers intentionally placed
other equipment in front of it; that some coworkers ignored
her or made false claims in order to get her in trouble
with management; that a misogynistic cartoon was taped to
her toolbox with the word “bitch” written on the tape; that
a Penthouse article called “Why Men Have So Many Sperm” was
set on a table next to her beverage; and that a liquid—
which plaintiff now asserts
was urine—was found on her
chair.
9
At trial, plaintiff offered the testimony of social
worker
Carol
Katz
and
of
certified
social
substance abuse counselor Steven Hnat.
worker
and
Mr. Hnat had
counseled plaintiff regarding her substance abuse problems
before
the
initiation
DaimlerChrysler.
of
her
lawsuit
against
He therefore testified as both a fact
witness and an expert witness.
His testimony proved to be
the linchpin of plaintiff’s case.
Mr.
plaintiff
Hnat
opined
that
the
harassment
had
caused
irreversible
changes
experienced
in
her
by
brain
chemistry, causing her to relapse into alcoholism and to
develop “major depressive disorder.”
had
reviewed
medical
records
He testified that he
prepared
by
other
health
professionals and, in his opinion, those records read “like
a preview of [plaintiff’s] death certificate.”
opined
that
plaintiff’s
body
was
He further
beginning
to
“decompensat[e],” and that she was “clearly dying.”
Mr.
Hnat’s theory was that plaintiff would develop a fatal case
of pancreatitis, a disease that Mr. Hnat testified was “the
most painful way to die.”
In the end, he told the jury
that plaintiff was likely to die relatively soon because of
“medical complications,” and that he “wouldn’t bet on her
living very long.”
10
Thus, plaintiff’s theory of the case, as introduced
through Mr. Hnat, was that the sexual harassment plaintiff
encountered at Chrysler caused a permanent change in her
brain chemistry that produced a relapse into alcohol abuse
and the onset of depression.
These conditions, in turn,
would
plaintiff’s
lead
inexorably
to
untimely
and
excruciating death.
After a six-week trial and 1-1/2 days of deliberation,
the jury returned a verdict of $21 million in favor of
plaintiff.
With prejudgment interest, a judgment for more
than $30 million was entered for plaintiff.
On
October
29,
1999,
defendant
moved
for
judgment
notwithstanding the verdict (JNOV), a new trial, remittitur,
an
evidentiary
hearing,
and
relief
from
judgment.
The
motion argued, among other things, that plaintiff’s counsel
and Mr. Hnat had perpetrated fraud on the court through
misrepresentations
plaintiff’s
about
Mr.
and
about
counsel
Hnat’s
his
relationship
academic
with
credentials.
Mr. Hnat testified at trial that he received a master’s
degree in “psychobiology” from the University of Michigan,
and
that,
as
an
Pillsbury
Prize
duplicated
on
a
undergraduate,
in
he
psychology.
version
of
Mr.
introduced as a trial exhibit.
11
won
the
These
Hnat’s
prestigious
claims
resume
that
were
was
In fact, both statements
were shown after trial to be false.
Nevertheless, the
trial court denied defendant’s motions on May 1, 2000.
Court
of
Appeals
affirmed
the
jury’s
verdict
in
The
an
unpublished opinion.
On April 8, 2003, we granted defendant’s motion for
leave to appeal.9
On appeal to this Court, defendant asserts four major
claims
of
plaintiff
error.
failed
First,
to
state
DaimlerChrysler
a
claim
of
argues
sexual
that
harassment
under the Michigan Civil Rights Act (CRA) because she did
not
show
incidents
that
of
defendant’s
sexual
response
harassment
was
to
the
six
inadequate.
reported
Second,
defendant argues that it is entitled to a new trial because
of
the
persistent
trial counsel.
and
blatant
misconduct
of
plaintiff’s
Third, defendant maintains that the trial
court committed error requiring reversal by admitting the
opinion testimony of a social worker on medical issues and
that this error was exacerbated by plaintiff’s use of that
testimony to inflame the jury.
Finally, DaimlerChrysler
argues that the $21 million verdict received by plaintiff
9
468 Mich 883 (2003). We also granted motions from the
Michigan Chamber of Commerce and the United States Chamber
of Commerce to file briefs amicus curiae, and solicited
additional briefs amicus curiae from interested parties.
12
is so excessive and so clearly punitive that it is entitled
to remittitur.
II.
A.
ANALYSIS
STANDARD OF REVIEW
A trial court’s decision to grant or deny a motion for
a new trial under MCR 2.611 is reviewed for an abuse of
discretion.10
its
The determination that a trial court abused
discretion
“involves
judicial opinion.”11
far
more
than
a
difference
in
Rather, a court abuses its discretion
“when ‘an unprejudiced person’ considering ‘the facts upon
which the trial court acted, [would] say that there was no
justification or excuse for the ruling made.’”12
B.
DEFENDANT’S MOTION FOR A NEW TRIAL
Defendant moved for postjudgment relief on a number of
grounds.
One of the grounds was that the verdict was the
product of prejudice and passion.
plaintiff’s
counsel
had
According to defendant,
repeatedly
equated
plaintiff’s
experiences to those of the victims of the Holocaust, and
10
Kelly v Builders Square, Inc, 465 Mich 29, 34; 632
NW2d 912 (2001).
11
Alken-Ziegler, Inc v Waterbury Headers Corp,
Mich 219, 227; 600 NW2d 638 (1999).
12
461
People v Hendrickson, 459 Mich 229, 235; 586 NW2d
906 (1998) (opinion by KELLY, J.), quoting Detroit Tug &
Wrecking Co v Wayne Circuit Judge, 75 Mich 360, 361; 42 NW
968 (1889).
13
thereby associated defendant’s new German co-owners with
the
Nazis
who
according
perpetrated
to
defendant,
that
was
horror.
This
bolstered
by
argument,
the
expert
testimony of a social worker who suggested to the jury that
sexual harassment had altered plaintiff’s “brain chemistry”
and
would
lead
to
her
untimely
and
agonizing
death.
Defendant argued that the excessiveness of the verdict—a
$21
million
award—palpably
reflected
the
passion
and
prejudice that plaintiff sought to instill in the jury.
The
request
trial
for
a
court
new
had
trial
the
discretion
under
MCR
to
grant
2.611(A)(1),
this
which
provides:
A new trial may be granted to all or some of
the parties, on all or some of the issues,
whenever their substantial rights are materially
affected, for any of the following reasons:
(a) Irregularity in the proceedings of the
court, jury, or prevailing party, or an order of
the court or abuse of discretion which denied the
moving party a fair trial.
(b)
Misconduct
prevailing party.
of
the
jury
or
of
the
(c)
Excessive
or
inadequate
damages
appearing to have been influenced by passion or
prejudice.
(d) A verdict clearly or grossly inadequate
or excessive.
(e) A verdict or decision against the great
weight of the evidence or contrary to law.
14
(f) Material evidence, newly discovered,
which could not with reasonable diligence have
been discovered and produced at trial.
(g)
Error
of
law
occurring
in
the
proceedings, or mistake of fact by the court. . .
An objective review of the proceedings below leads to
the conclusion that the trial court abused its discretion
in failing to grant a new trial under MCR 2.611(A)(1)(c).
The jury verdict is so excessive and so clearly the product
of passion and prejudice that there can be no justification
for the trial court’s denial of defendant’s motion for a
new trial.
1.
AN “EXCESSIVE” VERDICT
In order to grant relief under MCR 2.611(A)(1)(c), it is
first
necessary
“excessive.”
to
determine
whether
the
verdict
is
Because subsection c does not define this
term, it must be given its “plain and ordinary meaning[].”13
“Excessive”
necessary,
excess.”14
is
or
In
determination
proper
limit”
defined
proper
the
“going
limit
or
context
of
whether
is
as
no
damages
simple
beyond
degree;
task.
usual,
characterized
compensatory
exceed
the
the
“[T]he
by
damages,
the
“necessary
or
authority
to
13
Koontz v Ameritech Services, Inc, 466 Mich 304, 312;
645 NW2d 34 (2002).
14
Random House Webster’s Unabridged Dictionary (2001).
15
measure damages,” as we stated in Kelly v Builder’s Square,
“inheres in the jury's role as trier of fact.”15
Because
the amount required to compensate a party for pain and
suffering is imprecise, that calculation typically belongs
to the jury.16
The difficulty of reviewing damage awards, however,
does not undermine the judicial obligation to do so under
MCR 2.611.
A reviewing court is therefore faced with the
task of ensuring that a verdict is not “excessive” without
concomitantly usurping the jury’s authority to determine
the amount necessary to compensate an injured party.
the
impossibility
of
using
a
simple
algorithm
Given
for
this
task, judicial review of compensatory awards must rely on
the fundamental principle behind compensatory damages—that
of recompensing the injured party for losses proven in the
record.
This, in effect, is the rationale behind three of the
four factors that a majority of this Court endorsed in
Palenkas v Beaumont.17
The Palenkas majority stressed that
appellate
jury
review
of
verdicts
must
be
15
Id. at 34.
16
Id. at 35.
17
432 Mich 527, 533; 443 NW2d 354 (1989).
16
based
on
objective
factors
and
firmly
grounded
in
record.18
the
Accordingly, judicial review of purportedly excessive jury
verdicts should focus on the following objective factors:
[1] whether the verdict was the result of
improper methods, prejudice, passion, partiality,
sympathy, corruption, or mistake of law or fact;
[2] whether the verdict was within the limits of
what
reasonable
minds
would
deem
just
compensation for the injury sustained; [and 3]
whether the amount actually awarded is comparable
to awards in similar cases within the state and
in other jurisdictions.[19]
When
a
verdict
advocacy,
is
procured
misleading
through
argument,
or
improper
other
methods
factors
of
that
confound the jury’s quantification of a party’s injuries,
that amount is inherently unreliable and unlikely to be a
fair estimate of the injured party’s losses.
Likewise,
when a verdict is unsupported by the record or entirely
inconsistent
reviewing
exceeds
with
court
the
verdicts
may
amount
rendered
fairly
in
conclude
required
to
similar
cases,
a
that
the
verdict
compensate
the
injured
party.
When
analyzing
a
verdict
according
to
the
Palenkas
factors, courts must be mindful of the fact that punitive
damages
are
available
18
Michigan
Id. at 532-33.
19
in
Id.
17
only
when
expressly
authorized by the Legislature.20
Here, the Civil Rights Act
does not authorize punitive damages—and, moreover, permits
compensation
violation
fees.”21
the
CRA
factors
of
only
for
this
“injury
act,
or
including
loss
caused
reasonable
by
each
attorney's
Thus, the court has a statutory obligation under
to ensure, through consideration of the objective
described
by
Palenkas,
that
this
damage
award
serves the ends articulated by the Legislature.22
We turn first to the question “whether the verdict was
the
result
of
improper
methods,
prejudice,
passion,
partiality, sympathy, corruption, or mistake of law or fact
20
Rafferty v Markovitz, 461 Mich 265, 270-271; 602
NW2d 367 (1999).
Punitive damages are authorized, for
example, by MCL 750.147.
21
MCL 37.2801(3).
22
There is also an overarching constitutional issue to
consider. In State Farm Mut Automobile Ins Co v Campbell,
538
US
408,
416;
123
S
Ct
1513;
155 L Ed 2d 585 (2003), the United States Supreme Court
concluded that “[t]he Due Process Clause of the [United
States
Constitution’s]
Fourteenth
Amendment
prohibits
imposition of grossly excessive or arbitrary punishments on
a tortfeasor.” While State Farm dealt with punitive damage
awards, the due process concerns articulated in State Farm
are arguably at play regardless of the label given to
damage awards.
A grossly excessive award for pain and
suffering may violate the Due Process Clause even if it is
not labeled “punitive.” In this case, however, there is no
need to reach this constitutional question, given the
necessity of reversal on other grounds.
18
. . .”23
have
As shown in greater detail in Part II(B)(2), we
concluded
misleading
improper
that
this
argument,
admission
of
verdict
inflammatory
expert
above
therefore
the
product
of
and
the
rhetoric,
opinion
lacking in scientific support.24
listed
was
testimony
utterly
The first Palenkas factor
provides
strong
support
for
the
conclusion that this verdict is “excessive,” as that term
is used in MCR 2.611(A)(1)(c).
The
verdict
would
second
was
deem
Palenkas
within
just
the
factor
limits
This
verdict
concerns,
inquiry
in
into
what
reasonable
for
the
injury
the
essence,
supported by the record.
“whether
of
compensation
. . .”25
addresses
the
minds
sustained
reasonableness
whether
the
of
verdict
the
is
Here, it is apparent that the
jury verdict is unsupported by the evidence in one sense.
23
Palenkas, supra at 532.
24
The excessiveness of the verdict alone provided a
sufficient basis for the trial court to grant a new trial
under MCR 2.611(A)(1)(d). But the true abuse of discretion
below was not just the trial court’s failure to recognize
that this verdict was excessive as measured by comparable
cases, but its failure to recognize that plaintiff’s
counsel had engaged in a deliberate attempt to inflame the
jury——that the verdict below was the product of an
intentional course of improper conduct.
Therefore, this
opinion focuses on defendant’s motion for a new trial under
subsection c.
25
Palenkas, supra at 532.
19
The jury awarded plaintiff $1 million in trust for future
medical
expenses
and
“loss
of
future
earning
capacity,”
despite the fact that plaintiff failed to demonstrate any
economic harm in the present, much less a “loss of future
earning
capacity.”
In
fact,
according
to
her
counsel,
plaintiff continues to earn almost $100,000 a year with
overtime pay as an employee of defendant.
Similarly, there
was no evidence regarding the nature of medical treatment
that plaintiff may have to undergo in the future or the
likely cost of that treatment.
The jury’s estimation of
plaintiff’s future economic loss was without support in the
record.
The remainder of the verdict—$20 million—was intended
to compensate plaintiff for emotional distress, “physical
pain and suffering,” and the aggravation of her substance
abuse.
There may be some cases in which it is possible to
determine objectively that a compensatory award is or is
not supported by the record.
But this determination is
extremely problematic where damages for emotional distress
are at issue.
In such cases, comparison with damage awards
in
cases
comparable
final
Palenkas
resultant
in
this
jurisdiction
factor—becomes
analysis
is
most
certainly
and
relevant.
imperfect,
beyond—the
While
other
the
damage
awards may provide a range of what constitutes reasonable
20
compensation
plaintiff.
for
the
type
of
injury
suffered
by
a
With this range in mind, the reviewing court
may determine whether the verdict appears to be “within the
limits
of
what
reasonable
minds
would
deem
just
compensation for the injury sustained . . .”26
Turning finally to the third Palenkas factor, the $21
million verdict awarded in this case is far beyond the
range of what other juries have determined to be reasonable
compensation for injuries similar to—and much worse than—
those suffered by plaintiff.
To our knowledge, plaintiff’s
$21 million verdict is the largest amount ever awarded for
a single-plaintiff sexual harassment claim in the United
States.
It is seventy times larger than the maximum award
permitted under title VII, the federal civil rights act.27
Indeed,
plaintiff
verdict
in
an
has
not
employment
cited
a
single
discrimination
compensatory
action
from
any
court within the United States that arguably rivals the
amount awarded to plaintiff.
In
million
responding
verdict
is
to
defendant’s
“the
largest
26
Id. at 532.
27
See 42 USC 1981a(b)(3)(D).
21
argument
that
single-plaintiff
the
$21
sexual
harassment award upheld on appeal anywhere in the entire
country,” plaintiff has argued to this Court:
Defendant’s “other sexual harassment” case
analysis is far from honest.
Looking only at
automobile companies, and ignoring every other
case of sexual harassment in any other field of
employment in the Country, the largest recovery
is a $34,000,000 settlement by Mitsubishi in June
of 1998. . . . While Daimler Chrysler may believe
that sexual harassment of women is acceptable and
insignificant,
other
automobile
manufacturers
recognize their responsibilities and the gravity
of injury by agreeing to high seven and eight
figure settlements to avoid the higher measure of
full redress available to a victim like Linda
Gilbert who recovers for all losses at trial.
Plaintiff’s attack on defendant’s “dishonesty” here omits a
crucial fact: Mitsubishi’s $34 million settlement was in a
class action.28
plaintiff
We are unaware, therefore, of any single-
employment
discrimination
verdict
involving
a
nonpunitive award that even arguably approaches the amount
awarded to plaintiff, and plaintiff has identified none.
Plaintiff
argues
that
this
discrepancy
between
her
verdict and every other sexual harassment verdict in United
States
simply
reflects
the
jury’s
recognition
that
defendant’s conduct was much, much worse than that of any
other defendant in a sexual harassment case.
28
While we have
See, e.g., Braun, Mitsubishi to Pay $34 Million in
Sex Harassment Case, Los Angeles Times (June 12, 1998), p
A1 (noting that the settlement was distributed among
“hundreds of female employees”).
22
no doubt that plaintiff encountered truly ugly conduct at
Chrysler given the evidence and testimony adduced at trial,
we
cannot
worst
accept
case
of
the
sexual
argument
that
harassment
plaintiff’s
in
the
was
the
of
the
history
country that has resulted in a verdict.
A
survey
of
verdicts
rendered
in
other
sexual
harassment suits reveals that plaintiffs who endure sexual
harassment in its most aggressive form—unwanted touching
and
persistent,
predatory
sexual
advances—uniformly
have
received far less in compensatory damages than the amount
awarded to plaintiff.
Opa-locka,
a
party
For example, in Griffin v City of
who
alleged
that
she
was
sexually
harassed during a four-month period and was raped by her
manager was awarded $2 million.29
Co,
the
“sexually
plaintiff
explicit
alleged
And in Grow v W A Thomas
that
comments
and
she
was
unwanted
subjected
to
kissing
and
groping” over several years and recovered $192,684.30
Indeed, the only plaintiffs who have recovered sexual
harassment verdicts that are even arguably comparable to
that rendered in this case are those who recovered punitive
29
261 F3d 1295 (CA 11, 2001).
30
236 Mich App 696, 700; 601 NW2d 426 (1999).
23
damages.31
Even among cases in which a plaintiff recovered
punitive
damages
for
sexual
harassment,
our
research
discloses no case in which a party recovered a punitive
award
that
approached
or
exceeded
$21
million
that
was
upheld on appeal.32
On the basis of three of the factors articulated by
this Court in Palenkas, we conclude that the verdict in
this case is “excessive” as that term is used in MCR 2.611.
Not only does the verdict exceed verdicts in similar cases
by leaps and bounds, but, as shown in this opinion, it was
awarded
by
a
prejudice-baiting
jury
inflamed
argument,
by
and
hyperbolic
unscientific
rhetoric,
expert
testimony.
31
See Weeks v Baker & McKenzie, 63 Cal App 4th 1128;
74 Cal Rptr 2d 510 (1998) (the plaintiff, who alleged that
she sustained psychological injury from sexual harassment,
recovered $50,000 in compensatory damages and approximately
$7 million in punitive damages; the latter amount was later
reduced to $3.5 million); Deters v Equifax, 981 F Supp 1381
(D Kan, 1997) (plaintiff, whose coworkers rubbed and kissed
her against her will, received $5,000 in compensatory
damages and $1 million from the jury, reduced to $300,000
cap under 42 USC 1891a[b]), aff’d 202 F3d 1262 (CA 10,
2000).
32
See, e.g., Channon v United Parcel Service, Inc, 629
NW2d 835, 851 (Iowa, 2001) (the plaintiff, who was
subjected to unwelcome touching, sexual comments, and
assault, was awarded a verdict including approximately
$530,000 in compensatory damages and $80,220,000 in
punitive damages—the latter of which was reduced to
$300,000 under title VII).
24
PASSION AND PREJUDICE
2.
Having determined that the verdict is excessive, we
also conclude excessiveness may be attributed to the effect
of plaintiff’s efforts to cause the jury to act on passion
and prejudice.
An objective review of the record leads to
an unavoidable conclusion: plaintiff’s counsel engaged in a
systematic effort to divert the jury from its true task—
that of appropriately compensating the plaintiff for any
losses suffered as a result of defendant’s violation of the
CRA—and
instead sought to inflame passion and to incite the
jury to punish the defendant even while disclaiming that he
was seeking punitive damages.
Plaintiff’s counsel deliberately tried to provoke the
jury by supplanting law, fact, and reason with prejudice,
misleading
arguments,
and
repeated
ad
hominem
against defendant based on its corporate status.
attacks
Given the
undeniable role of this inflammatory rhetoric, the trial
court erred in denying defendant’s motion for a new trial.33
One of counsel’s tactics in this vein was his repeated
attempts
to
equate
plaintiff
33
with
the
victims
of
the
See Firchau v Foster, 371 Mich 75, 78, 79; 123 NW2d
151 (1963) (“[W]here language is such as evinces a studied
purpose to enflame or prejudice the jury, based upon facts
not in the case, this Court has not hesitated to
reverse.”).
25
Holocaust.
This association began during the testimony of
plaintiff’s expert, Steven Hnat, when Mr. Hnat testified
that plaintiff’s psychological state was akin to that of
concentration camp survivors.
Plaintiff’s counsel further
developed this theme during his closing argument:
Never again.
Never again.
That is a line
now used by the sabreurs [sic; sabras] in Israel,
the land of Israel, to mean that the unspeakable
horrors that were perpetrated on the people of
Israel, on the Jews, must never be forgotten and
must never happen again.
Never again.
Never
again.
Counsel also exhorted the jury to
provide full and complete justice and thereby, as
I indicated at the start of this trial, raise the
roof of this courthouse so that justice will ring
loud and clear. No more.
As those young [sabras] said in the land of
Israel, no more. We will not let this stand. We
will not allow this to pass.
We will not allow
you, you, an equal with all of us in this, the
great equalizer, to crush the health and the
dreams of a woman who simply had the American
dream.
Even
the
final
sentence
of
plaintiff’s
closing
argument
referenced the Holocaust theme: “Let’s bury this prejudice
once and for all so that we may appropriately say, never
again.”
This
recurring
rhetorical
theme
was
especially
virulent given the context of plaintiff’s trial.
Chrysler
had
merged
with
Daimler
26
Benz
AG,
In 1998,
a
German
automobile manufacturer.
particularly
in
trial was held.
hear
about
privy
to
the
the
The merger was highly publicized—
metropolitan
Detroit,
where
plaintiff’s
And if any of the jurors had failed to
merger
news
through
once
media
plaintiff’s
outlets,
counsel
they
were
pointed
out
during his closing argument that Chrysler was under German
ownership:
Daimler-Chrysler may be powerful, but, my
God, they are going to have to recognize,
hopefully today by your verdict, that not only
must they face justice in this case, they must
obey the law.
We are
individuals.
a nation of laws, not powerful
We are a nation of laws . . .
And, I can assure that verdict will be heard
from the floor of that plant on Jefferson to the
board room in Auburn Hills or Stuttgart. . . .
Once they hear in Auburn Hills
Germany about Linda . . . it will stop.
and
in
Continuing on this theme, counsel argued that the jury now
had a chance to acquaint Chrysler’s German owners with a
distinctly American brand of justice:
[You must] ring that bell of justice even if
you have to have it rung across the oceans of
this land to their board rooms, wherever they may
be.
Chrysler must take notice that it is
responsible, under the Constitution and laws of
this state, and that we are ringing the bell of
justice so that she can walk a little taller and
stand a little prouder.
27
Thus,
rhetorical
counsel’s
aim
of
closing
making
argument
defendant’s
had
German
critical issue in the minds of the jurors.
a
clear
ownership
a
By associating
plaintiff with those who had endured inhuman treatment in
concentration
camps,
DaimlerChrysler—which,
counsel
as
the
likened
jury
was
defendant
informed,
partially under German ownership—with the Nazis.
was
This
argument was an attempt to incite the jury to heap upon the
defendant the moral outrage that is now reserved for the
Nazis
and
those
Holocaust.
It
who
was,
assisted
them
in
words,
other
in
carrying
a
naked
out
the
appeal
to
passion and prejudice and an attempt to divert the jury
from the facts and the law relevant to this case.
Besides
associating
defendant
with
one
of
the
most
destructive and inhumane forces in modern history, counsel
attempted
artfully
to
convince
the
jury
that
defendant
itself had physically harmed plaintiff, when there was no
record of physical injury in the record.
In describing
plaintiff’s refusal to quit her position as a millwright,
counsel argued:
She stayed.
She was not going to give up.
You could kick her. You could torture her. You
could harass her.
You could put her in
hospitals, but she was going to claw.
She was
going to hold on.
She was going to do whatever
was necessary to not lose that last shred of
humanity that made her pull—that constitutes the
28
soul, the thread, that will live on forever after
she is gone [Emphasis added].
Plaintiff’s counsel also equated plaintiff with a dog that
had been kicked, beaten, and physically abused on a daily
basis.
Although counsel was quick to point out that he was
not saying that plaintiff was actually a dog, he failed to
mention
that
there
was
absolutely
no
evidence
that
plaintiff had been physically abused in any way by any
employee of defendant.
Plaintiff’s counsel also played on prejudice against
corporations, arguing that DaimlerChrysler thought that it
did
not
have
to
obey
the
law
simply
because
of
corporate status:
You [defendant] are not God Almighty sitting
on the mountain. You are not Zeus . . .
We will hold you to the same standard we
will hold to anyone else, because their attitude
speaks volume [sic] of their belief that they are
above being held to the same standard as a lowly
woman millwright would be held to.
Later, plaintiff’s counsel argued:
[A]pparently . . . when you enter the
confines of a multi, a very, very successful
business over on Jefferson, that the laws of
civility don’t apply.
That they are . . . permitted under the laws
and the Constitution of this state to be less
civil and less respectful of civil rights. . . .
They think, they must think that it is okay with
you that this type of thing went on day after
29
its
day.
That it was okay to treat a woman the way
Linda was treated.
That it was okay with you that they tried to
take away a woman’s livelihood, the first and
only female millwright ever employed at that
plant. That it is okay to humiliate and degrade
a woman as she tries to earn and do her best[.]
Equally telling is counsel’s argument that “[plaintiff was]
discriminated
Iacocca.
against
twice,
because
she
is
not
Lee
She is just a millwright.”
There was no evidence presented at trial suggesting
that
anyone
employed
by
defendant
thought
incorporation
relieved it of the obligation to follow the law.
there
evidence
that
anyone
in
the
Nor was
management
of
DaimlerChrysler approved of sexual harassment or would have
responded
differently
had
a
corporate
officer
been
the
subject of sexual harassment.
These arguments were little more than pleas for the
jury to consider defendant’s corporate status rather than
its
true
liability
under
CRA.
the
However
justifiable
counsel’s moral indignation over the treatment plaintiff
encountered
indignation
attempts
to
while
does
working
not
inflame
and
for
cannot
passion
and
DaimlerChrysler,
that
justify
that
rhetoric
prejudice
and
intentionally subverts the jury’s fact-finding role.
30
that
Finally,
plaintiff’s
counsel
attempted
to
inject
passion and prejudice into the adjudication of this matter
by deliberately and repeatedly using language that calls
for punitive rather than compensatory damages.
A number of
these pleas for punitive damages have already been cited.
One request for punitive damages was particularly overt:
You must consider the days, the minutes, the
hours, and the weeks that she went through for
seven years, and for as long as God gives her on
this plant [sic], God help her, and allows her to
maintain on this plant [sic], despite the disease
that she is suffering from, the diseases that she
will suffer from, and that will kill her, you
must consider that, and so that your verdict
reflect
the
enormity
of
the
wrong,
the
intolerable nature of the injury, the extent of
the humiliation, the torture, the extent of the
outrage perpetrated upon, I can suggest, and you
can go back in your jury room, and you determine
whether this is right.
That is should be more,
that it should be less.
But I suggest to you that you award as full
and complete justice for the seven years of past
and
for
the
future,
whatever
it
holds,
$140,000,000.00. You can break that any way you
want . . .
[T]he hopes and dreams of all free Americans
exist in Linda the way they do in all of us.
And to destroy those, and to subject anyone
to the type of indignity and injustice and
intolerable acts that this woman has been
subjected to for the past seven years, that
figure reflects a symbol, if you will, since you
can’t adequately compensate her for every . . .
31
This soliloquy stopped briefly only when defense counsel
objected to this use of punitive damages rhetoric and the
court gave a curative instruction.
The verdict rendered by the jury, however, showed that
the
damage
rhetoric
had
had
its
been
done—that
intended
counsel’s
effect.
Instead
inflammatory
of
awarding
plaintiff an amount that fully and fairly compensated her,
the jury returned a verdict that responded to plaintiff’s
request that they “send a message” to Chrysler.
Counsel’s persistent and deliberate efforts to incite
passion and prejudice distinguish this case from those in
which
inflammatory
unintentional.34
remarks
were
fleeting
and
Plaintiff’s counsel has been admonished in
two published Court of Appeals opinions since this trial
for precisely the same sort of hyperbolic and vitriolic
argument
34
he
made
on
See, e.g., People v
659
(1994)
(rejecting
prosecutorial
misconduct
defendant’s ethnicity were
of a degree that prejudiced
trial”).
behalf
of
Linda
Gilbert.35
Bahoda, 448 Mich 261; 531 NW2d
the
defendant’s
claim
of
where
references
to
the
“innocuous, unintended, and not
the defendant's right to a fair
35
In Powell v St John Hospital, 241 Mich App 64; 614 NW2d
666 (2000), the Court of Appeals “admonish[ed]” counsel for
misconduct that included his efforts to “gratuitously
insert[]” the issue of race into a medical malpractice
claim, [his] repeated “belittle[ing]” of witnesses, his
inappropriate
assertion
that
the
decedent
had
been
(continued…)
32
Overreaching, prejudice-baiting rhetoric appears to be a
calculated, routine feature of counsel’s trial strategy.
This deliberate use of improper argument, coupled with the
astonishingly excessive verdict rendered against defendant,
precludes us from concluding that counsel’s misconduct was
“innocuous” and “unintended.”
In fact, plaintiff’s counsel’s behavior during trial
is remarkably similar to what necessitated a new trial in
Reetz v Kinsman Marine Transit Co.36
The plaintiff in Reetz
was injured when he fell into an open hatch while working
(…continued)
“tortured,” and
counsel.
his
personal
attacks
against
defense
Earlier, in Badalamenti v Beaumont Hosp-Troy, 237 Mich
App 278, 281; 602 NW2d 854 (1999), the Court of Appeals
held that counsel’s misconduct was so pervasive that it
would have provided a separate basis for a new trial.
Again, in Badalamenti, that Court rebuked counsel for his
personal attacks against the defendant and defense counsel,
his repeated argument that the defendant was greedy and
only cared about money, and that his appeal to the jurors’
self-interest as taxpayers. The panel concluded:
[Plaintiff’s counsel] sought to divert the
jurors’ attention from the merits of the case and
to enflame the passion of the jury.
That
strategy paid off handsomely here in the form of
a large verdict for plaintiff.
The cumulative
effect of the improper innuendo, remarks, and
arguments by plaintiff’s lead trial counsel was
so harmful and so highly prejudicial that we are
unable to conclude that the verdict in this case
was not affected. [Id. at 292.]
36
416 Mich 97; 330 NW2d 638 (1982).
33
as a deckhand.
The vessel on which plaintiff sustained his
injuries was owned by Kinsman Marine Transit Company, and
George Steinbrenner, III, served as chairman of the board
for
Kinsman’s
parent
company.
Reetz’s
counsel
made
Kinsman’s corporate status an issue at trial, arguing that
Kinsman “cared nothing about Reetz’s welfare . . . .”37
Further, Reetz’s counsel made “repeated references” to Mr.
Steinbrenner, despite the fact that Mr. Steinbrenner had no
personal involvement in the case.38
We concluded in Reetz
that
[t]he effect of these comments was to create in
the minds of the jurors an image of Kinsman as an
unfeeling, powerful corporation controlled by a
ruthless millionaire.
Even a juror who harbored
no prejudice against corporations or millionaires
might have been swayed by these inflammatory
remarks to alter his view of the evidence.[39]
On the basis of counsel’s ad hominem attacks against the
defendant
and
his
numerous
references
to
mutlimillion
dollar verdicts in other cases, we concluded that the jury
had been incurably tainted and a new trial was necessary.40
37
Id. at 110.
38
Id.
39
Id. at 111.
40
Id. at 107, 112.
34
The parallel to arguments made by plaintiff’s counsel
in this case is striking.
Here, however, the anticorporate
rhetoric was even less subtle than that supporting a new
trial
in
Reetz.41
And
instead
of
referring
to
other
multimillion dollar verdicts, counsel repeatedly utilized
language
calling
for
punitive
damages.42
Therefore,
we
conclude that
“[t]he record in the instant case shows a
deliberate course of conduct on the part of
counsel
for
plaintiff
aimed
at
preventing
defendant from having a fair and impartial trial.
We think the course of misconduct was so
persistently followed that a charge of the Court
in an effort to obviate the prejudice would have
been useless.”[43]
When faced with defendant’s motion for postjudgment
relief under MCR 2.611, the trial court had no reason to
deny relief and every reason to grant it.
In making its
ruling on defendant’s posttrial motions, the trial court
clearly ignored the prominence of prejudicial rhetoric in
plaintiff’s
closing
argument
and
the
effect
that
this
rhetoric had on the jury.
41
See, e.g., p 29 (“[A]pparently . . . when you enter
the confines of a multi, a very, very successful business
over on Jefferson, . . . the laws of civility don’t
apply.”).
42
See p 27.
43
Id. at 111-112, quoting Steudle v Yellow & Checker
Cab & Transfer Co, 287 Mich 1, 11-12; 282 NW2d 879 (1938).
35
The trial court’s failure to grant a new trial was,
therefore, an abuse of discretion.
of
the
Court
circuit
court
of
Appeals
for
and
We reverse the judgment
remand
proceedings
in
this
action
accordance
to
with
the
this
opinion.
C.
MRE 702 & THE EXPERT OPINION TESTIMONY OF STEVEN HNAT
In order to provide guidance for the new trial, we
address the controversy surrounding the expert testimony
and
the
erroneous
standard
propounded
by
the
Court
of
Appeals concerning the gate keeping role required by MRE
702.
We now clarify that MRE 702 requires the trial court
to ensure that each aspect of an expert witness’s proffered
testimony—including
theories
and
the
the
data
methodology
underlying
by
which
the
the
expert’s
expert
draws
conclusions from that data—is reliable.
1.
MRE
THE COURT’S GATEKEEPER ROLE UNDER MRE 702
702,
as
it
existed
at
the
time
of
trial,44
provided:
44
MRE 702 was amended effective January 1, 2004, to
particularize the kind of gatekeeper inquiry the trial
court is required to make. MRE 702 now states:
If the court determines that scientific,
technical, or other specialized knowledge will
assist the trier of fact to understand the
(continued…)
36
If
the
trial
court
determines
that
recognized
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.
In both its former and current incarnations,45 MRE 702 has
imposed an obligation on the trial court to ensure that any
expert testimony admitted at trial is reliable.46
While the
(…continued)
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.
45
See n 18 and accompanying text.
46
See MRE 702 (providing that expert testimony is
admissible “[i]f the court determines” that certain
preconditions are met).
See also Daubert v Merrell Dow
Pharmaceuticals, Inc, 509 US 579, 589; 113 S Ct 2786, 125 L
Ed 2d 469 (1993) (concluding from similar language in
Federal Rule of Evidence 702 that “the trial judge must
ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable” [emphasis
added]).
In fact, the trial court’s obligation under MRE 702 is
even stronger than that contemplated by FRE 702 because
Michigan’s rule specifically provides that the court’s
determination is a precondition to admissibility.
Compare
FRE 702 (“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue . . .”) with the
(continued…)
37
exercise
of
discretion,
this
a
gatekeeper
trial
judge
role
may
is
within
neither
a
court’s
“abandon”
this
obligation nor “perform the function inadequately.”47
Indeed,
reinforced
the
by
obligation
MRE
imposed
104(a),
by
which
MRE
702
provides
is
that
“[p]reliminary questions concerning the qualification of a
person to be a witness . . . shall be determined by the
court . . . .”48
The requirements of MRE 104(a) extended to
the application of MRE 702 because the admission of expert
testimony under this rule hinges on preliminary questions
concerning qualification.
For example, reference in MRE
702 to “scientific” evidence “implies a grounding in the
methods
and
reference
belief
or
to
procedures
of
“knowledge”
“connotes
unsupported
science,”
and
more
speculation.”49
As
than
the
rule’s
subjective
such,
MRE
104
(…continued)
older MRE 702 (“If the court determines that recognized
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue . . . .” [Emphasis added.]).
47
Kumho Tire Co Ltd v Carmichael, 526 US 137, 158-159;
119 S Ct 1167; 143 L Ed 2d 238 (1999) (Scalia, J.,
concurring).
48
MRE 104(a) (emphasis added).
49
Daubert, supra at 590.
38
requires
the
trial
court
to
address
these
preconditions
before admitting expert testimony.
It is well-established that the proponent of evidence
“bears
the
burden
admissibility.”50
of
establishing
relevance
and
At the time this case was tried, the
proponent of expert opinion evidence bore the burden of
establishing
admissibility
according
“general acceptance” standard.51
amended explicitly to incorporate
to
the
Davis-Frye
MRE 702 has since been
Daubert’s standards of
reliability.
But this modification of MRE 702 changes only
the
that
factors
a
court
may
consider
in
determining
whether expert opinion evidence is admissible.
It has not
altered the court’s fundamental duty of ensuring that all
expert
opinion
testimony—regardless
of
whether
the
testimony is based on “novel”52 science—is reliable.
50
People v Crawford, 458 Mich 376, 388 n 6; 582 NW2d
785 (1998) (describing this rule as “basic hornbook law”).
51
See People v Davis, 343 Mich 348; 72 NW2d 269
(1995); Frye v United States, 54 App DC 46; 293 F 1013
(1923).
52
See, e.g., People v Young, 418 Mich 1, 24; 340 NW2d
805 (1983).
Because the court’s gatekeeper role is
mandated by MRE 702, rather than Davis-Frye, the question
whether Davis-Frye is applicable to evidence that is not
“novel” has no bearing on whether the court’s gatekeeper
responsibilities
extend
to
such
evidence.
These
responsibilities are mandated by MRE 702 irrespective of
whether proffered evidence is “novel.”
See MRE 702; see
(continued…)
39
Thus, properly understood, the court’s gatekeeper role
is the same under Davis-Frye and Daubert.53
Regardless of
which test the court applies, the court may admit evidence
only once it ensures, pursuant to MRE 702, that expert
testimony meets that rule’s standard of reliability.
other
words,
both
tests
require
courts
to
exclude
In
junk
science; Daubert simply allows courts to consider more than
just
“general
acceptance”
in
determining
whether
expert
testimony must be excluded.
This gatekeeper role applies to all stages of expert
analysis.
MRE 702 mandates a searching inquiry, not just
of the data underlying expert testimony, but also of the
manner in which the expert interprets and extrapolates from
those data.
Thus, it is insufficient for the proponent of
expert opinion merely to show that the opinion rests on
data viewed as legitimate in the context of a particular
area of expertise (such as medicine).
The proponent must
(…continued)
also General Electric Co v Joiner, 522 US 136, 142; 118 S
Ct 512; 139 L Ed 2d 508 (1997) (noting that FRE 702
overruled Frye but left intact the court’s gatekeeper
responsibilities).
53
See Joiner, supra at 142 (“[W]hile the Federal Rules
of Evidence allow district courts to admit a somewhat
broader range of scientific testimony than would have been
admissible under Frye, they leave in place the ’gatekeeper’
role of the trial judge in screening such evidence.”
[Emphasis added.]).
40
also show that any opinion based on those data expresses
conclusions
reached
through
reliable
principles
and
methodology.54
Careful vetting of all aspects of expert testimony is
especially
important
about causation.55
when
an
expert
provides
testimony
The United States Supreme Court’s caveat
in Joiner is persuasive:
[N]othing in either Daubert or the Federal
Rules of Evidence requires a district court to
admit opinion evidence which is connected to
existing data only by the ipse dixit of the
expert. A court may conclude that there is simply
too great an analytical gap between the data and
the opinion proffered.[56]
When
a
court
underlying
focuses
expert
its
MRE
702
inquiry
opinion
and
neglects
to
on
the
evaluate
data
the
extent to which an expert extrapolates from those data in a
manner consistent with Davis-Frye (or now Daubert), it runs
the risk of overlooking a yawning “analytical gap” between
54
See, e.g., Porter v Whitehall Labs, Inc, 9 F3d 607,
615-617 (CA 7, 1993) (holding that the district court
properly excluded expert testimony in which the expert’s
theory that plaintiff’s injuries were caused by ingestion
of ibuprofen failed under Daubert).
55
See, e.g., Diaz v Johnson Matthey, Inc, 893 F Supp
358, 377 (D NJ, 1995) (concluding that an expert’s
“testimony on specific causation [was] not sufficiently
reliable to be admissible under Rule 702”).
56
Joiner, supra at 146.
41
that data and the opinion expressed by an expert.57
As a
result, ostensibly legitimate data may serve as a Trojan
horse that facilitates the surreptitious advance of junk
science and spurious, unreliable opinions.
2.
MR. HNAT’S MEDICAL OPINION TESTIMONY
Both the trial court and the Court of Appeals seem
unaware of the core gatekeeper principles described above.
As a result, the faux “medical” opinion of an individual
who
lacked
any
medical
education,
experience,
training,
skill, or knowledge became the linchpin of plaintiff’s case
and unmistakably affected the verdict.
Plaintiff’s
harassment
she
theory
at
encountered
trial
as
was
that
defendant’s
the
sexual
employee
had
produced a permanent change in her “brain chemistry,” that
this neurological change led to an increase in substance
abuse and that, in the end, defendant’s failure to curb
sexual harassment in plaintiff’s workplace would cause her
to die the most painful death imaginable because of the
metabolic
57
physiological
phenomena
he
described.58
The
Id.
58
Mr. Hnat told the jury that “[p]ancreatitis is the
worse [sic] pain a person could experience.
The pancreas
as you know is very innervated [sic] and when you develop
pancreatitis that is the most painful way to die.”
42
theory was presented through the testimony of Mr. Hnat, a
social worker, and was based on his analysis of medical
records from various hospitals and clinics where plaintiff
was treated for substance abuse.
Mr.
Hnat
testified
that
he
was
a
certified
social
worker with experience in substance abuse treatment.59
He
also testified that he had received a master’s degree in
psychobiology, although it was revealed after trial that
this testimony was patently false.60
59
A social worker is certified in Michigan under MCL
333.18511.
“Social work,” as used in this section, is
defined as
the professional application of social work
values, principles, and techniques to counseling
or to helping an individual, family, group, or
community do 1 or more of the following:
(i) Enhance or restore
social functioning [or]
the
capacity
for
(ii) Provide, obtain, or improve tangible
social and health services. [MCL 333.18501(d)].
60
Mr. Hnat was allowed to testify based in part on his
assertions—both in court and in a written resume submitted
as
an
exhibit—that
he
had
a
master’s
degree
in
psychobiology from the University of Michigan and that he
had received the prestigious Pillsbury Prize in psychology
as an undergraduate. Defendant discovered after trial that
both statements were false.
Contrary to his sworn
testimony, plaintiff had neither obtained a master’s degree
in psychobiology nor received the Pillsbury Prize as an
undergraduate.
(continued…)
43
Apparently
expertise
in
influenced
by
psychobiology,
Mr.
the
Hnat’s
trial
claim
court
to
have
permitted
plaintiff to introduce medical records through Mr. Hnat’s
testimony.
Heart
Before the admission of records from Sacred
Rehabilitation
Center,
defense
counsel
raised
the
following objection:
Your Honor, I object to their admission.
Certainly, with regard to this witness, he is not
a medical doctor to review all of these other
records and testify about them.
He is a social
worker and he is competent to testify about his
own records.
It is just not appropriate.
The foundation
hasn’t been laid for the introduction of those
records,
certainly
not
pursuant
to
this
individual.
(…continued)
We disagree with the Court of Appeals’ suggestion that
the trial court could have legitimately concluded that Mr.
Hnat “had simply misspoken” when he said that he had a
Master’s degree in psychobiology and had won the Pillsbury
Prize. Slip op p 30. We doubt that anyone could honestly
misspeak about having a degree that he did not, in fact,
possess, much less that he could “misspeak” in a written
resume. We also disagree with the lower courts’ conclusion
that there is no real difference between completing
coursework necessary for a degree and actually receiving a
degree.
Unless and until an educational institution
confers a degree, which is the institution’s official
determination that a student has met all the requirements,
an expert witness may not, consistent with the oath,
affirmatively represent to having “received” the degree.
This discrepancy in Mr. Hnat’s qualifications could
not have been inadvertent and ought to have given the JNOV
motion.
In addition, the falsification of Mr. Hnat’s
credentials supports our concern that the trial of this
case was rife with unseemly tactics by plaintiff’s counsel.
44
The trial court rejected defendant’s argument that Mr. Hnat
was unqualified to articulate an opinion based on records
compiled
abuse.
when
plaintiff
sought
treatment
for
substance
However, the record in this case reveals that,
irrespective
of
whether
the
medical
records
detailing
plaintiff’s substance abuse treatment were admissible, Mr.
Hnat
was
asked
to
interpret
those
records
and
thereby
render an opinion that he was wholly unqualified to give.
For example, the following exchange took place during
plaintiff’s direct examination of Mr. Hnat:
Q. Will [plaintiff] be able to work in light
of what you know about her condition as recently
as yesterday? Will she continue to be physically
able to work?
A.
No.
Her medical complications at this
point have progressed to the point where she is
going to be physically unable to work fairly
soon.
She
is
going
to
have
increasing
hospitalizations most likely to deal with the
cirrhosis,
the
pancreatitis,
she
may
need
transplants at some point, she may need any range
of radical medical intervention.
So her ability
to work physically is severely impaired at this
point even though right now she is functioning
okay.
There is going to be increasing problems
associated with this medical condition.
It’s
unavoidable.
People
have
those
severe
complications must work [sic].
Q. Do you have any idea what was the cause
of her problems as they exist in this lady as
late as yesterday?
45
A. Alcoholism, major depression precipitated
by work stresses, and sexual harassment. That is
the bottom line.
Q. What do you mean that is the bottom line?
A. I mean that is what happened here, that
is what is killing this person, probably has
killed her as far as you can tell at this point.
I wouldn’t bet on her living very long.
She
might, if she gets treatment. There’s a chance.
If she doesn’t get treatment, she’ll die fairly
soon. [Emphasis added.]
The impact of Mr. Hnat’s “medical opinion” on the verdict
rendered in this case could not have been more pronounced.
Especially
noteworthy
is
the
fact
that,
during
closing
arguments, plaintiff’s counsel encouraged the jury to treat
Mr. Hnat’s opinion as an actual medical prognosis:
You heard testimony, and I don’t think Mr.
Hnat was being glib when he testified about the
fact that although he is not an omniscient, he is
not a sooth sayer, he has read her death
certificate.
Her death certificate, her death will come
sooner or later, none of us can know for sure.
You will consider this in a haze of alcohol. She
will die either in a violent event if she drives,
or she will die of the effects of alcohol on her
body. She will have chronic hepatitis, in other
words, a disease of the liver, cirrhosis, if you
will.
She will have dehydration as Mr. Hnat
testified to.
She will have metabolic acidosis
that will slowly put her into a coma.
She will have increased red blood cells, or
low blood cells to fight infection.
She will
have chronic pancreatitis.
One of the most
painful
diseases
known
to
medical
science,
inflammation of her pancreas.
And she has
46
suffered all of these during hospitalizations, as
Mr. Hnat has testified to.
She will suffer severe abdominal pain, and
she will die.
And she will not live out her
life.
At one point during closing arguments, plaintiff’s counsel
even
told
the
jury
that
plaintiff
had
to
leave
the
courtroom for a portion of his closing argument because the
“prognosis that she has for her life” was too grim for her
to hear.61
As these excerpts reveal, Mr. Hnat unquestionably used
the content of plaintiff’s treatment records to render an
opinion
about
that
required
plaintiff’s
testified
about
medical
impending
the
type
expertise.
physical
of
He
speculated
inability
medical
to
work,
complications
that
plaintiff would soon experience, predicted the cause of her
death,
and
gave
expectancy.
Mr.
physiological
lifespan.
testimony
Hnat
disease,
concerning
expressed
cause
of
plaintiff’s
his
death,
“opinion”
and
life
on
plaintiff’s
Yet there was no evidence or showing that Mr.
61
After plaintiff left the courtroom (apparently at
counsel’s request), counsel told the jury, “While it is
necessary for me to review evidence, I don’t believe that
it is necessary for me to review statements made by doctors
in front of Linda Gilbert with regard to the prognosis that
she has for her life, because I don’t believe that it is my
job here to rob her of whatever hope that she may have for
the future.”
47
Hnat was qualified by training, experience, or knowledge to
render
would
such
opinions
arguably
or
support
interpret
such
a
medical
diagnosis
records
or
that
prognosis.
There was, in other words, no evidence that Mr. Hnat was
qualified to testify that defendant’s actions concerning
workplace harassment caused neurological and physiological
changes in plaintiff and shortened her life.
Plaintiff’s arguments in support of Mr. Hnat’s testimony
and the Court of Appeals’ acceptance of those arguments can
be based only on a misinterpretation of MRE 702. Plaintiff
argued,
for
interpret
“treater.”
opinion
than
example,
plaintiff’s
Mr.
medical
Hnat
was
records
qualified
because
he
is
to
a
In order for Mr. Hnat to provide an admissible
interpreting
those
that
related
medical
to
the
records
for
expertise
of
purposes
social
other
workers,
plaintiff bore the burden of showing that Mr. Hnat was
qualified
by
knowledge,
education in medicine.
skill,
experience,
training,
or
Given the absence of such evidence,
plaintiff failed to carry the burden of establishing the
admissibility of Mr. Hnat’s medical opinions, regardless of
the admissibility of the records that ostensibly informed
this opinion.
Likewise,
that
“the
we
‘mere
reject
fact’
the
that
Court
Mr.
48
of
Hnat
Appeals’
‘is
not
argument
a
medical
practitioner does not render him unqualified as an expert
witness’”
because
“qualifications
“[a]ny
are
limitations
relevant
to
admissibility, of his testimony.”62
the
in”
Mr.
weight,
Hnat’s
not
the
The Court of Appeals’
observation that one need not be a medical practitioner to
testify as an expert is little more than a truism.
do
not
disagree
with
the
proposition
that,
And we
in
some
circumstances, an expert’s qualifications pertain to weight
rather than to the admissibility of the expert’s opinion.63
That
is
not
to
say,
however,
that
any
issue
of
qualification relates to weight rather than admissibility.
As shown, MRE 702 establishes preconditions for the
admission of expert opinion.
62
Such testimony must be rooted
Slip op at 33-34, quoting Grow, 236 Mich App 713-
714.
63
In Grow, for example, the Court of Appeals held that
the testimony of a certified social worker with fourteen
years of experience in counseling “victims of sexual,
physical, and emotional abuse” was admissible on the issue
of plaintiff’s posttraumatic stress disorder.
Id. at 713.
Because the social worker in Grow had actual experience in
counseling persons suffering from posttraumatic stress
disorder, his testimony was admissible under MRE 702, which
refers to a witness “qualified as an expert by knowledge,
skill, experience, training, or education . . . .”
(Emphasis added.) If the defendant in Grow had offered the
expert opinion of a psychiatrist with experience in
treating posttraumatic stress disorder, the more limited
qualifications of plaintiff’s certified social worker would
have been relevant to the weight of his testimony even
though they would not have barred its admission.
49
in “recognized scientific, technical, or other specialized
knowledge” and must assist the trier of fact.
is
on
the
party
offering
the
expert
to
The burden
satisfy
the
preconditions established by MRE 702.64
Where the subject of the proffered testimony is far
beyond the scope of an individual’s expertise—for example,
where a party offers an expert in economics to testify
about biochemistry—that testimony is inadmissible under MRE
702.
In such cases, it would be inaccurate to say that the
expert’s lack of expertise or experience merely relates to
the
weight
of
her
testimony.
An
expert
who
lacks
“knowledge” in the field at issue cannot “assist the trier
of fact.”
Here, according to plaintiff’s counsel, Mr. Hnat gave
plaintiff a “prognosis” on the basis of his interpretation
of
records
from
medical
and
treatment
facilities.
The
medical “prognosis” of a social worker who has no training
in medicine and lacks any demonstrated ability to interpret
medical records meaningfully is of little assistance to the
trier of fact.
We also reject the Court of Appeals’ assertion that
Mr. Hnat’s medical testimony on the physiological effects
64
Crawford, supra at 388 n 6.
50
of alcoholism and depression was admissible because these
effects
are
“common
knowledge.”65
As
the
United
States
District Court for the Eastern District of Michigan has
aptly stated:
[E]xpert testimony is not admissible unless
it will be helpful to the fact finder.
Such
testimony is unhelpful when it is unreliable or
irrelevant, as the [Supreme] Court observed in
Daubert, . . . and also when it merely deals with
a proposition that is not beyond the ken of
common knowledge.[66]
To justify the admission of an expert opinion on the basis
of the belief that no expertise is necessary to render such
an opinion is to fail to give any effect to MRE 702, and,
indeed, to turn that rule on its head.
The previous MRE
702 allowed expert opinion testimony only “[i]f the trial
court determines that recognized scientific, technical, or
other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue.
. . .”
that
Thus, the Court of Appeals panel’s rationalization
Mr.
admitted
Hnat’s
because
expert
it
was
opinion
based
testimony
on
was
“common
harmlessly
knowledge”
is
inconsistent with the requirements of MRE 702.
65
See slip op at 34.
66
Zuzula v Abb Power T & D Co, Inc, 267 F Supp 2d 703,
711 (ED Mich, 2003) (emphasis added).
51
Unless
actually
information
goes
requiring
through
the
expert
crucible
of
interpretation
analysis
by
a
qualified expert, it is of little assistance to the jury
and therefore inadmissible under MRE 702.
trial
judge
on
retrial
to
ensure
that
We direct the
expert
opinion
testimony meets the purpose expressed in MRE 702—that of
assisting the trier of fact through the introduction of
reliable
“scientific,
technical,
or
other
specialized
knowledge.”
D.
THE SUFFICIENCY OF PLAINTIFF’S CLAIM UNDER THE CRA
We turn finally to defendant’s claim that the trial court
erred by admitting evidence regarding incidents of sexual
harassment of which defendant was never properly notified.
Defendant
moved
in
limine
to
exclude
incidents
that
plaintiff reported for the first time at her deposition.
The
court
denied
that
motion,
concluding
that
the
jury
could consider each incident in order to determine whether
defendant had actual or constructive notice that plaintiff
was
subjected
to
a
hostile
environment.
The
Court
of
Appeals employed a similar logic in concluding that each
incident was admissible.
52
While the trial court did not err in denying defendant’s
motion
to
resulted
exclude
in
those
substantial
incidents,67
confusion.
We
this
ruling
has
now
clarify
the
legal justification for the trial court’s decision in order
to minimize confusion during retrial.
Under the Civil Rights Act, an employer may be liable
for an employee’s sexual harassment when the employer has
notice
of
the
harassment
corrective action.68
and
fails
to
take
appropriate
In Chambers, we held that “notice of
sexual harassment is adequate if, by an objective standard,
the
totality
of
the
circumstances
were
such
that
a
reasonable employer would have been aware of a substantial
probability that sexual harassment was occurring.”69
67
We do not mean to say, however, that every incident
described at trial was admissible to support a claim of
sexual harassment. In Haynie v Michigan, 468 Mich 302; 664
NW2d 129 (2003), we stressed that sexual harassment is
defined by statute as “unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct or
communication of a sexual nature . . . ."
Id. at 309,
quoting MCL 37.2103(i) (emphasis added).
Some of the
incidents described during this trial were not sexual in
nature and therefore were improperly admitted to support
plaintiff’s theory of sexual harassment.
Haynie shall
control the admission of evidence at the retrial.
68
Chambers v Trettco, Inc, 463 Mich 297, 312; 614 NW2d
910 (2000).
69
Id. at 319.
53
When
a
plaintiff
describes
an
incident
of
sexual
harassment for the first time at her deposition, evidence
pertaining to that incident may be admissible under two
rationales.
First,
such
evidence
may
be
admissible
in
order to establish the nature and extent of the hostile
environment
to
which
plaintiff
was
subjected
and
the
adequacy of defendant’s response upon being notified about
sexual harassment.
under
a
Second, that evidence may be admissible
“constructive
notice”
theory
when
a
plaintiff
contends that sexual harassment was so pervasive that her
employer
should
have
known
of
the
need
for
corrective
measures.70
In this case, plaintiff gave actual notice to defendant
through
defendant’s
formal
initiating this lawsuit.
reporting
procedures
before
Any incidents that she described
for the first time at her deposition were admissible in
order to establish an element of her hostile environment
claim—that “the unwelcome sexual conduct or communication
was intended to or in fact did substantially interfere with
the
employee's
employment
or
created
an
intimidating,
hostile, or offensive work environment,”71—and to establish
70
See id.
71
Id at 311 (emphasis added).
54
the
inadequacy
environment.
denying
of
defendant’s
response
to
that
hostile
Therefore, the circuit court did not err by
defendant’s
motion
to
exclude
evidence
of
any
incident that plaintiff described for the first time at her
deposition.
III. CONCLUSION
For the foregoing reasons, we conclude that the trial
court abused its discretion in denying defendant’s motion
for a new trial under MCR 2.611.
Once the jury issued its
verdict, it should have been apparent to the trial court
that the persistent and calculated efforts of plaintiff’s
trial counsel to thwart the jury’s fact-finding role had
borne fruit.
The jury’s deliberations had been palpably
affected and this wrought substantial harm to defendant’s
right to a fair trial.
This case is remanded to the Wayne
Circuit Court for a new trial to be held consistently with
this opinion.
Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor
Stephen J. Markman
55
S T A T E
O F
M I C H I G A N
SUPREME COURT
LINDA M. GILBERT,
Plaintiff-Appellee,
v
No. 122457
DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (dissenting).
This case is about male employees sexually harassing a
female employee and an employer that did very little to try
to
make
it
stop.
This
case
is
not
about
plaintiff’s
counsel’s “routine” behavior, contrary to the assertions of
the majority.
may
have
Ante at 33.
done
particular case.
in
past
Whatever plaintiff’s counsel
cases
is
irrelevant
to
this
In this case, an objective review of the
evidence indicates that plaintiff overwhelmingly provided
facts to prove that she was sexually harassed and that
defendant conducted an inadequate investigation into this
harassment.
Defendant’s
inadequacies
in
the
work
place
continued in the courtroom as it selected a trial strategy
intended
to
“blame
the
victim”
for
the
harassment
that
occurred.
Defendant’s repeated errors in judgment should
not now be redressed by this Court.
The
majority
because
it
remands
asserts
this
the
that
matter
trial
for
a
court
new
trial
abused
its
discretion in denying defendant’s motion for a new trial.
The majority claims that “it should have been apparent to
the trial court that the persistent and calculated efforts
of plaintiff’s trial counsel to thwart the jury’s factfinding role had borne fruit.”
Ante at 54.
I disagree and
believe there was substantial admissible evidence for the
jury to hold defendant liable.
Therefore, I respectfully
dissent.
I.
The
EVIDENCE OF HARASSMENT AND THE CONDUCT OF
PLAINTIFF’S COUNSEL
majority
unmistakably
prejudice
reflects
rather
disagree.
states
that
passion
than
“the
rather
jury’s
than
impartiality.”
verdict
reason
Ante
at
4.
and
I
The standard for reviewing defendant’s motion
for a new trial, MCR 2.611, is the abuse of discretion
standard.
(1942).
Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914
An
abuse
of
discretion
occurs
“only
when
the
result is so palpably and grossly violative of fact and
logic
that
perversity
it
of
evidences
will,
not
not
the
the
exercise
2
exercise
of
of
will
but
judgment
but
defiance thereof, not the exercise of reason but rather of
passion or bias.”
Alken-Ziegler, Inc v Waterbury Headers
Corp, 461 Mich 219, 227; 600 NW2d 638 (1999) (citations and
internal
clearly
quotation
disagrees
testimony
verdict
from
that
marks
omitted).
with
numerous
the
verdict,
witnesses
plaintiff,
the
While
to
first
the
majority
there
was
ample
support
the
jury’s
and
only
female
millwright for a lengthy period at defendant’s plant, was
the victim of sexual harassment and that defendant did not
engage in an adequate investigation or remedial action to
stop this harassment.
An employee in defendant’s human resources department
testified that the investigation into plaintiff’s sexual
harassment
claims
defendant’s
human
was
inadequate.1
resources
Another
department
employee
testified
1
Q. But we all know that you didn’t do any
investigation?
A. Not adequately.
brought out here.
Yes.
As
has
been
* * *
Q.
After the Polaroid penis, you did
nothing, am I correct, you did nothing, you
decided you did everything you could do and you
decided not to take any further action, correct.
A. That’s what we decided.
3
in
that
without being given a name he would not even know where to
begin
a
sexual
harassment
investigation.
Yet
another
employee in the human resources department testified that
she told plaintiff she would provide her with the name and
number of a union representative who might be helpful, but
the
name
because
and
the
number
were
employee
never
never
provided
saw
to
plaintiff
plaintiff
again.2
Defendant’s corporate representative at trial, who was also
one of plaintiff’s supervisors, conveyed to the jury that
defendant’s investigation essentially consisted of passing
out defendant’s sexual harassment policy and asking the men
if they harassed plaintiff or knew who did.3
The trial
2
Q. And you actually never did give Linda
[plaintiff] that number because you didn’t see
her again am I correct?
A. That is correct.
3
Q. And if somebody didn’t come forward to
you, apparently, and tell you that they saw so
and so do it, that was it?
A. Working with the frame of the union, the
local agreements, that’s it.
* * *
Q. And you’re claiming—by the way, with
regard to this [the March 1995 incident, which
(continued…)
4
representative said he approached some of the men as a
group and asked if they knew who was sexually harassing
plaintiff.
He also said he hoped someone else would do the
investigating
and
that
he
did
responsibility to investigate.4
not
feel
it
was
his
The trial representative
(…continued)
was the poem “The Creation of a Pussy”] that’s
the only thing that you know of that–or the only
claim quote unquote investigation that you did
was ask the men whether they knew who did it; is
that what you claim?
A. Yes, sir.
Q. Okay.
Now you didn’t
systematic fashion, did you?
do
it
in
a
A. As far as questioning the men?
Q. Right.
A. No, I did not.
Q. You just as you could run into them?
A. As I approached them, yes.
4
Regarding later incidents, the trial representative
testified:
Q. Since you felt that you expected Chrysler
[defendant] would assign the lawyers or somebody
else to investigate Linda’s [plaintiff’s] sworn
statement regarding the continued and unabated
acts of harassment between 1992 and November 4 of
199—on November 3, 1994 when her statement was
taken, did you ever see anybody from Chrysler
assigned to investigate these claims—not you but
somebody else, as a result of the statement?
A. No, I did not.
(continued…)
5
later testified that asking the men if they knew who was
responsible for the incidents was inadequate.
He further
stated that he did not know of any other investigation that
was done.
An employee who worked for defendant for thirty-one
years testified that he had never seen anyone treated like
plaintiff.
He stated, “She was relentlessly pounded with
derogatory statements, with no help when she was given a
job, and there were several people involved on the same
job.
She would not get a lot of cooperation.
She was just
basically resented that she was a woman, making a man’s
wage.”
The
employee
also
testified
that
plaintiff
was
subjected to physical danger by not getting the cooperation
she needed, and that other millwrights received, when doing
her work.
Although millwrights commonly work in pairs, she
was often forced to work alone.
He testified that this
abusive conduct occurred nearly every day, was devastating
to
plaintiff,
supervisors.
and
was
He
also
readily
apparent
testified
that
to
plaintiff’s
supervisors
(…continued)
Q. So when you said you would have expected
the lawyers to do it, even though you expected it
apparently nobody at Daimler Chrysler did it, am
I correct?
A. Not that I’m aware of.
6
made
offensive comments as well.
This employee drove plaintiff
home from work for a period and testified she cried at
least one hundred times on the way home from work.
“She
never knew what to expect on any given day that she went
into work . . . .”
He also testified that the stench of
urine from a chair in an area set off for plaintiff made it
evident that someone had urinated on it.
Further, the
employee stated that he did not observe any of defendant’s
employees try to stop the harassment.
Plaintiff testified that when she went to work each
day she “never knew what to expect.”
She said abusive
comments were essentially an everyday occurrence, and she
said she was isolated and ostracized at work.
Plaintiff
stated that the conduct made her afraid and angry and that
she had problems sleeping.
She also experienced headaches,
stomach problems, and problems associated with her asthma.
Plaintiff
said
she
felt
hopeless
and
attempted
suicide
because she could not get any cooperation or help from
defendant.5
5
Regarding her suicide attempt, plaintiff said
Plaintiff testified:
And I tried to do something about it, and
nothing got done about it.
People saw what was
happening.
Nobody would do anything.
Nobody
would help me.
(continued…)
7
“that’s what I did and I regret it, but I just felt pushed
to that point where I couldn’t take it anymore.”
Plaintiff
said she felt torn up inside and that the harassment was an
assault to her person.
Plaintiff said she began drinking
“to
dull
escape”
and
help
her
feelings.
Plaintiff
testified that the abusive comments were still being made
at the time of the trial, but she was not going to quit
over the harassment; she refused to be driven out of her
job.
I believe even this limited testimony indicates that
there was ample evidence to support the jury’s verdict, and
(…continued)
* * *
I turned things in.
There was a, in my
opinion,
there
was
a
slight
attempt
at,
perfunctory attempt at making a report.
After
those things were turned in, the guys laughed
about it.
They thought it was a big joke.
The
first thing that got turned in.
It was a week
and a half later that the second thing, picture
of the penis was on my tool box.
So, that
everything.
showed
how
serious
they
took
Plaintiff also testified that when she
reported that “BITCH” was written on masking tape
and fastened to her toolbox, she was told by a
supervisor not to show that it bothered her and
the harassment may stop. Plaintiff was also told
that changing her clothes in a certain location,
which was enclosed, was “drawing attention to”
herself.
8
I disagree that the verdict was the result of plaintiff’s
counsel’s
inflaming
prejudice-baiting
testimony.”
the
jury
argument,
Ante at 24.
with
and
“hyperbolic
rhetoric,
unscientific
expert
Plaintiff’s counsel vigorously
pursued this case; however, defense counsel’s approach was
no less vigorous.
Although defense counsel’s strategy ultimately proved
to
be
ineffective,
and
although
the
majority
certainly
disagrees with the verdict, it does not necessarily mean
that
plaintiff’s
counsel
behaved
inappropriately.
A
thorough review of defense counsel’s conduct during trial
illustrates that defense counsel’s strategy was inadequate
and, at times, disingenuous.
For
example,
defense
counsel
tried
to
characterize
some of the men alleged to have engaged in the harassment
as “ornery” and she referred to one as “basically a good
guy.”
She tried to characterize their comments as “shop
talk”6 or “a slip of the tongue,” and their conduct as
6
Plaintiff testified she “was called a fucking cunt,
whore, bitch, drunk ass, pussy.”
Defense counsel then asked witnesses if
bitch or cunt were appropriate as “shop talk.”
9
words
like
“horseplay.”7
She
repeatedly
questioned
plaintiff
whether she reported harassing incidents to
about
supervisors
while plaintiff continually testified that the supervisors
were standing right next to her during the incidents.8
plaintiff
testified
that
a
coworker
was
snidely
When
telling
other employees to watch what they were saying or it would
be
labeled
characterize
sexual
the
harassment,
coworker
as
defense
being
counsel
helpful
tried
by
to
merely
7
Contrary to defense counsel’s characterization, an
employee in defendant’s human resources department stated
that a reasonable person would find the cartoons and
pictures offensive.
Another said he considered the penis
photograph to be sexual harassment.
8
A. [The supervisors h]ad been standing in
the group of people with him speaking that way,
yes.
Q. And did you at any time ask either of
them why they are permitting this individual to
address you in such fashion?
A. No, I didn’t.
Q. Then, how can you be certain they heard
what you heard?
A. Because they were right there.
Q. What do you mean
shoulder-to-shoulder with you?
by
right
there,
A. We were all in a group.
I mean, they
weren’t far enough away where they were out of
earshot.
10
instructing
Regarding
other
an
people
article
about
about
men
what
is
appropriate.
and
sperm
left
near
plaintiff’s soda can, defense counsel attempted to minimize
the
incident
because
the
article
was
in
a
scientific
magazine.
Defense counsel questioned plaintiff about plaintiff’s
alleged
failures
investigations.
to
keep
abreast
of
defendant’s
Defense counsel also repeatedly alluded to
the fact that plaintiff knew who was harassing her, even
though
plaintiff
repeatedly
said
she
did
not
know
for
certain and she did not want to falsely accuse someone.
Defense
more
counsel
important
responsible.”9
argued,
to
“She
protect
[plaintiff]
whoever
it
thought
was
it
that
was
was
Regarding plaintiff, defense counsel argued,
“There is absolutely nothing wrong with her.”
Consistent
with the strategy that plaintiff was responsible for the
continued mistreatment, defense counsel asked witnesses if
plaintiff was a “tomboy” and she also questioned whether
plaintiff had “put herself in a position of being in a
profession that has historically been dominated by me[n].”
9
Defendant’s records, however, indicate that plaintiff
did not know who was responsible for leaving harassing
items.
For example, defendant’s records on October 10,
1994 state, “She [plaintiff] also stated she know [sic] it
is a maintenance employee and she can only guest [sic] at
this time because she hasn’t seen them doing this.”
11
During closing argument, defense counsel brought up
private incidents relating to plaintiff that occurred over
twenty
years
ago,
even
though
plaintiff
working with defendant until 1992.
did
not
begin
She argued the only
problem plaintiff’s coworkers had with plaintiff related to
her alcoholism.
“They never had a problem with Ms. Gilbert
as a female.”
Defense counsel’s theme was to blame the
victim.
This was demonstrated in a statement she made
indicating that plaintiff’s “medical records also reflect
that she has a tendency to blame everyone else for her
problems, rather than look directly at her problems.”
The
majority
counsel;
criticizes
however,
transcripts
and
objections
a
plaintiff’s
thorough
lengthy
made
justifying
a
by
new
closing
defense
trial.
counsel
the
during
conduct
review
of
of
argument
counsel
Regarding
closing
and
plaintiff’s
the
trial
finds
sparse
no
impropriety
statements
argument,
made
he
by
first
stated that plaintiff thanked the jury for allowing her to
exercise her right as an American citizen to have her day
in court.
that
Plaintiff’s theme during closing argument was
plaintiff
harassment.
had
great
fortitude
to
withstand
the
Plaintiff had repeatedly testified that she
was not a quitter, she had every right to work at the
plant, and she was not going to let them run her out.
12
Plaintiff’s counsel referenced the strength of those who
were
affected
by
the
Holocaust.
He
also
referenced
Prometheus and Zeus, and stated that the myth of the eagle
pecking at Prometheus’s liver for all eternity reminded him
of plaintiff’s ordeal.
He compared plaintiff to Rosa Parks
and Arthur Ashe, as well as a dog that was kicked and
abused
every
pioneer.
day.
He
even
referred
to
plaintiff
as
a
When reviewing the closing argument in context,
it is obvious that plaintiff’s counsel was arguing that
plaintiff was courageous and determined.
majority’s
assertion,
plaintiff’s
Contrary to the
counsel
was
no
more
likening plaintiff to the Holocaust victims than he was
likening her to a figure in Greek mythology being pecked by
a bird.
Plaintiff’s
counsel
also
appropriately
stated
that
defendant should be judged just as any individual would be
judged.
And
he
stated
that
the
jury
could
not
punish
defendant; it could only compensate plaintiff for the harm
suffered.
and
While plaintiff’s counsel did refer to “torture”
“beating
plaintiff
down,”
the
jury
heard
weeks
of
testimony and was aware that no evidence of physical abuse
was introduced.
the
phrases
Defense counsel obviously did not think
were
objection raised.
inflammatory
because
there
was
no
To suggest, as the majority does, that
13
the jury was somehow influenced or confused by these random
phrases
during
closing
arguments
is
insulting
to
the
jurors’ intelligence.
The
majority’s
blanket
statements
counsel belie the truth of the record.
no
more
defendant
played
was
a
on
the
prejudices
German
company
of
than
about
plaintiff’s
Plaintiff’s counsel
the
he
jury
played
because
on
the
prejudices of the jury because he hoped the jury liked
dogs, tennis players, or well-known pioneers such as Lewis
and
Clark.
While
plaintiff’s
counsel’s
comments
are
highlighted by the majority, the references were miniscule
in the context of the entire trial.
The majority hopes
that by merely stating that these references were “naked
appeals to entice the jury to consider its passions and
prejudice,”
ante
at
3,
it
can
events that occurred at trial.
magically
transform
the
However, a review of the
whole record reveals that the majority’s approach misstates
the events at trial.
The majority states, “Overreaching, prejudice-baiting
rhetoric appears to be a calculated, routine feature of
counsel’s trial strategy.”
that statement is accurate.
Ante at 33.
I do not know if
But what I do know is that it
is not an accurate statement in this case.
plaintiff’s
counsel’s
routine
14
may
be,
this
No matter what
Court
should
focus only on the facts before us.
An impartial review of
those facts indicates the behavior of plaintiff’s counsel
does not warrant a new trial.
II. EXPERT WITNESS TESTIMONY
I agree with the majority that “MRE 702 has imposed an
obligation upon the trial court to ensure that any expert
testimony admitted at trial is reliable.”
Ante at 36-37.
However, I disagree that the trial court erred in failing
to conduct its gatekeeper role in this case.
Stephen
Hnat,
a
fact
and
expert
witness
called
by
plaintiff, testified that he is a clinical social worker,
which means he is licensed to perform psychotherapy—both
group therapy and individual therapy—primarily for people
who
have
substance
abuse
emotional disorders.
worker since 1981.
disorders,
or
depressive
or
He has worked as a clinical social
Among other positions, Mr. Hnat served
as staff therapist and the director of cocaine treatment
for Ford Hospital-Maplegrove.
During his testimony, Mr. Hnat clarified that he is
not a doctor and that he did not complete his Ph.D.
Unlike
the majority, I do not find any evidence that Mr. Hnat’s
misstatement
that
intentional.
Mr. Hnat entered a doctorate program that he
did not complete.
he
possessed
a
master’s
degree
was
It is not unreasonable that, twenty
15
years later, he was unclear about whether he had completed
the required paperwork to be awarded his master’s degree.
I also do not find that, in light of Mr. Hnat’s other
credentials, the misstatement affected the jury verdict.
Mr. Hnat detailed a lengthy career that included consulting
with the Michigan Department of Transportation, as well as
the Detroit Red Wings, Detroit Tigers, Detroit Lions, and
the University of Michigan Athletic Department.
Mr. Hnat
also served as a consultant to the National Institute of
Drug Abuse and served on the President’s Task Force for a
Drug-Free Workplace.
He also conducted research over the
years and authored an award-winning video used by numerous
corporations.
Further, he served as an instructor at the
Michigan Judicial Institute and as an adjunct professor at
the
University
examination,
of
Detroit
plaintiff’s
Mercy.
counsel
During
and
Mr.
direct
Hnat
were
forthcoming about their past working relationship.
Mr.
testified
Hnat
that
first
treated
there
is
alcoholic stops drinking.
plaintiff
a
withdrawal
in
1992.
period
He
when
an
The withdrawal period depends on
the person and how much the person drank, but “if you stop
using alcohol very quickly, your body can be, the brain is
overstimulated
and
you
can
develop
16
some
serious
life-
threatening complications at that time.”
Mr. Hnat also
testified:
Alcoholism is, you know, is a progressive
disease which ultimately is fatal and it’s fatal
in a number of different ways unless it’s
arrested but then it’s not fatal but the way that
alcoholics or people with addiction generally die
are associated with overdoses, accidents because
of the effect of the drug and the functioning of
the environment. More often than not it’s a very
slow and painful process as the body begins to
break down because of the toxic effects of the
chemical, so in the case of alcoholics, the
process of dying usually involves the development
of some very painful medical complications such
as pancreatitis or hepatitis or cirrhosis.[10]
He further explained that alcoholism “continues to capture
more of the brain’s functions so that the person is, you
know,
the
brain,
it
becomes
more
and
more
focused
on
getting and using the drug.”
Unlike
the
majority,
I
do
not
find
“utterly lacking in scientific support.”
short,
Mr.
alcoholic.
Hnat’s
testimony
was
that
this
testimony
Ante at 19.
plaintiff
was
In
an
Stress related to the sexual harassment she
suffered while employed by defendant caused plaintiff to
start drinking again and suffer from depression, which also
exacerbated her drinking.11
As an alcoholic suffering from
10
Medical records listed various medical conditions
suffered by plaintiff, including chronic pancreatitis.
11
Plaintiff testified:
(continued…)
17
depression,
alcoholics.
has
plaintiff
emotional
die
from
a
disease
common
to
Mr. Hnat testified that “for the person who
alcoholism,
harassment]
may
that
produces
distress
kind
an
but
compulsive drug seeking.
of
stress
additional
of
[from
risk
triggering
not
a
sexual
only
of
process
of
That the person will, they feel
bad, and that sort of natural connection of the brain is I
feel bad.
I feel like drinking.”
Medical records signed
by various medical professionals indicate that plaintiff
suffered “extreme stress in her work environment due to
sexual harassment.”
I do not believe that the trial court
abused its discretion in admitting Mr. Hnat’s testimony.
(…continued)
It [the harassment] just got worse.
And
being an alcoholic, sometimes that is the way we
cope with things is by going back to the bottle
and that is what I did.
* * *
I belief [sic] that the daily abuse that I
have been subjected to at work has hindered me
greatly in being able to remain sober.
In
contrast,
defense
counsel
suggested
that
plaintiff’s depression was not the result of repeated
sexual harassment at work, but could have been the result
of having to depend on other people for transportation.
18
III. REMITTITUR
The jury found that plaintiff had been subjected to
sexual harassment in violation of the Michigan Civil Rights
Act,
MCL
37.2101
adequately
et
seq.,
and
investigate
and
that
take
defendant
prompt
and
did
not
appropriate
remedial action.
The jury awarded $20 million for mental
anguish,
pain
physical
and
suffering,
fright
and
shock,
denial of social pleasures and enjoyments, embarrassment,
humiliation,
mortification,
disappointment,
worry,
shame,
outrage,
anger,
disability
chagrin,
including
the
loss or impairment of plaintiff’s psychological well-being,
and the increase in plaintiff’s disease of substance abuse
arising
The
from
jury
an
also
aggravation
awarded
$1
of
a
preexisting
million
in
a
condition.
trust
fund
for
plaintiff to use for future medical expenses; contrary to
the majority’s assertion, when the jury verdict was read,
the jury did not state that this amount was for future
earning capacity.
As stated, I believe that the jury’s verdict for the
plaintiff
trial.
was
amply
supported
by
testimony
offered
at
I also disagree with the majority’s statement that
“we cannot accept the argument that plaintiff’s was the
worst
case
country
of
that
sexual
has
harassment
resulted
in
19
a
in
the
verdict.”
history
of
the
Ante
at
22.
Plaintiff does not have to prove that her case was the
worst
case
of
sexual
harassment
country to support the verdict.
be
properly
supported
by
the
in
the
history
of
the
However, the verdict must
evidence
and
reviewed
to
determine
[1]
whether the verdict was the result of
improper methods, prejudice, passion, partiality,
sympathy, corruption, or mistake of law or fact;
[2] whether the verdict was within the limits of
what
reasonable
minds
would
deem
just
compensation
for
the
injury
sustained;
[3]
whether the amount actually awarded is comparable
to awards in similar cases within the state and
in other jurisdictions.
[Palenkas v Beaumont
Hosp, 432 Mich 527, 532; 443 NW2d 354 (1989).]
On the basis of the evidence introduced at trial and
awards in other sexual harassment cases, as detailed by the
majority, I believe that the jury award in this case is too
great.
See id. at 538-540; Precopio v Detroit, 415 Mich
457, 479; 330 NW2d 802 (1982).
While defendant’s conduct
was reprehensible and plaintiff’s suffering indisputable, a
review
of
indicates
jury
that
inappropriate.
as
an
exact
awards
the
in
other
jury’s
sexual
award
harassment
in
this
case
cases
was
While a review of other awards cannot serve
indicator
and
circumstances
may
certainly
justify higher awards than those granted by other juries,
the disparity between this award and others involving a
single plaintiff indicates that it is not analogous.
20
I stress, however, that I do not believe the matter
should
be
remanded
misconduct
on
excessively
for
the
remittitur
part
large
of
on
the
plaintiff’s
verdict
in
basis
of
counsel.
plaintiff’s
any
The
favor
is
attributable solely to the conduct of defendant and defense
counsel.12
In
an
ironic
exchange
during
the
trial,
plaintiff’s counsel actually predicted the outcome of the
case
after
defense
counsel
requested
a
regarding plaintiff’s lack of mitigation.
jury
instruction
Defense counsel
stated that plaintiff was causing her own medical problems
and “could have ameliorated the later incidents [of sexual
harassment]
which
could
have
harmed
her.”
Plaintiff’s
12
In a telling exchange, an employee of the human
resources department attempted to dismiss plaintiff’s
complaints of sexual harassment.
Q. She did actually complain to you that she
had been the victim of harassment, didn’t she?
A. Complained no.
conversation.
It was more upon [sic] a
* * *
A. Like a factfinding thing, like she wants
to know what she could do, what avenues she could
take, that sort of thing.
Q. So she was asking you for advice on what
she should do?
A. Yes.
21
counsel
stated
that
defense
counsel’s
argument
that
plaintiff is responsible for her damages
is going to pump up the damages in this case when
they start blaming [plaintiff].
So, I want the
record to reflect I am acceding to this on behalf
of my client because it is my firm belief that
this would increase the amount of damages that is
awarded to my client, rather than decrease them.
. . . And I just want to make a record. If we
get an astronomical verdict and the Defendant
comes back and asks for a remittur [sic], Judge,
I want the record to reflect that the Defendant
is requesting an instruction that I think would
have the effect of further angering the jury and
increasing the damages.
While
I
find
plaintiff’s
counsel’s
prescience
impressive, the excessively high verdict cannot be allowed
to stand merely because plaintiff’s counsel made a record
of defense counsel’s woeful error in strategy.
Therefore,
I
court
for
question,
and
would
remand
this
matter
to
the
trial
remittitur.
IV. CONCLUSION
Defendant’s
trial
strategy
was
to
minimize, the harassment experienced by plaintiff and blame
plaintiff for not being more active in seeking to stop the
harassment.
This
strategy
rejected by the jury.
is
now
classified
was
chosen
by
defendant
and
Conduct by plaintiff’s counsel that
as
objected to by defendant.
unacceptable
was
frequently
not
I do not believe that this Court
22
should now step in to help defendant correct its errors in
judgment.
Therefore, I respectfully dissent.
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
23
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