Miller v. State Farm Mutual Automobile Insurance

424 N.W.2d 31, 168 Mich. App. 238

• Court: Michigan Court of Appeals
• Decided: April 25, 1988
• Docket: Docket 87700
• Status: Published

Opinions

R. M. Maher, J.

We agree with the facts and disqualification of plaintiff’s expert witness as explained in Judge Beasley’s well-reasoned opinion, which was originally circulated as a proposed majority opinion, but must disagree as to that portion of his final paragraph where he finds "thermography, as presently developed in the medical field, to be a useless and unreliable technique.” We believe that, under the present record, that conclusion is premature and one which should be reserved until after the competing views are fully set forth in a Davis-Frye¹-type hearing.

As Judge Beasley recognizes, the trial court erred in failing to address defendants’ motion in limine by conducting a hearing on the reliability of thermographic evidence. We do not believe, though, that plaintiff should be penalized by the trial court’s mistake or by our ruling on appeal that Dr. Newman should have been disqualified from giving expert testimony. Had the court conducted a Davis-Frye hearing, and had plaintiff known that his witness was unable to testify on the scientific acceptance of thermography, he may have been able to present expert testimony from a competent witness. Plaintiff should not be made to suffer for his lack of foreknowledge.

For the above reasons, we believe the case should be remanded for a Davis-Frye-type hearing. The number of expert witnesses each side may call shall rest in the sound discretion of the trial court and shall be limited according to the dictates of the case.² At the conclusion of the hearing, the trial court shall decide, based upon the facts before it, whether thermography is accepted as reliable by the scientific community. If the court finds that it is, the verdict in favor of plaintiff is affirmed. If the court finds that it is not, the verdict is reversed and a hearing shall be conducted on whether plaintiff has otherwise satisfied the requirements of DiFranco v Pickard.3

Remanded for a Davis-Frye-type hearing.

M. E. Dodge, J., concurred.

1 Frye v United States, 54 US App DC 46; 293 F 1013 (1923); People v Davis, 343 Mich 348; 72 NW2d 269 (1955).

2 On remand, the trial judge is cautioned to find plaintiff’s expert witnesses competent to testify only if those persons satisfy the requirements of Kluck v Borland, 162 Mich App 695; 413 NW2d 90 (1987), as discussed in Judge Beasley’s dissenting opinion. Although this may limit plaintiff’s ability to obtain competent witnesses, we do not believe this would work an undue hardship on him. If the only persons willing to testify as to the reliability of thermography are those with a substantial financial interest in its practice, surely that field of medicine cannot claim to be widely accepted as reliable by the scientific community.

3 427 Mich 32; 398 NW2d 896 (19861.