Lopez v. General Motors Corp. ( 1996 )

Bandstra, J.

(concurring). I concur in the decision to reverse and remand because that result is required by Sumner v General Motors Corp, 212 Mich App 694; 538 NW2d 112 (1995), which we must follow because of Administrative Order No. 1996-4.¹ However, I believe that Sumner was wrongly decided.

Before Sumner, our Court had distinguished cases involving tests or experiments that recreated the accident at issue from cases where tests or experiments were useful in illustrating general principles surrounding the accident, without attempting to recreate the accident. See, e.g., Gorelick v Dep’t of State Hwys, 127 Mich App 324, 336; 339 NW2d 635 (1983); Green v General Motors Corp, 104 Mich App 447, 450; 304 NW2d 600 (1981); Thorp v Dayton Tire & Rubber Co, 51 Mich App 514, 519-521; 215 NW2d 600 (1974). Where test results were offered to recreate the specific accident at issue, they had to be “virtually identical” or an “almost exact” representation of the accident. Green, supra. Accord Gorelick, supra (motion pictures offered to recreate the scene of an accident had to “portray conditions almost identical to those prevailing at the time of the accident itself”). With respect to evidence offered to illustrate general principles rather than recreate an accident, it was enough if “the conditions of the experiment [were] sufficiently similar to those involved in the particular case.” Przeradski v Rexnord, Inc, 119 Mich App 500, 506; 326 NW2d 541 (1982), remanded on other grounds 417 Mich 1100.19 (1983). Accord Gorelick, supra at 337 (a film was admissible because it was “a ‘close enough representation’ of conditions ... to serve as a useful and relevant piece of evidence”); Muniga v General Motors Corp, 102 Mich App 755, 759; 302 NW2d 565 (1980) (“[e]xperimental data are admissible if the tests from which the data are drawn involved conditions sufficiently similar to those involved in the particular case to assist the trier of fact in reaching its conclusions”). Our decisions allowing the admission of sufficiently similar evidence, used to illustrate general principles rather than recreate an accident, found their genesis in the Supreme Court’s decision in Smith v Grange Mutual Fire Ins Co of Michigan, 234 Mich 119; 208 NW 145 (1926). See Przeradski, supra at 506, n 7; Muniga, supra. Smith made clear that, if there is sufficient similarity between an experiment and the accident at issue in a case, evidence of the experiment should be admitted to “assist[ ] the jury to an intelligent consideration of the issues of fact presented.” Smith, supra at 126.² Because “the lack of exact identity affects only the weight and not the competency of the evidence,” id., any differences between the conditions of the experiment and the actual accident could be the subject of cross-examination and jury argument, but not grounds for challenging admissibility, see Green, supra at 451-452.

The Sumner panel did not apply the sufficient similarity test required by these many precedents, but, instead, created a whole new test. The Sumner panel decided that the contested crash test videotapes were inadmissible because they were used “to prove a very important specific factual question: what role the defective welds played in the alleged enhancement of plaintiff’s injuries.” Sumner, supra at 697. It appears that the rule created in Sumner is that if the proponent of an experiment attempts to use the experiment to argue about a material fact in the case, the experiment becomes inadmissible.

This rule and result are inconsistent with many precedents where evidence of sufficiently similar tests was allowed into evidence even though it was used to prove, in the words of Sumner, “a very important specific factual question.” For example, in Kirk v Ford Motor Co, 147 Mich App 337, 344; 383 NW2d 193 (1985), we approved the introduction of sufficiently similar test results that had been used by the plaintiff “to illustrate the vulnerability of under-the-floor fuel tanks . . . and to establish defendant’s negligence in the design.” In Gorelick, supra at 331, 337, a “crucial consideration” for the factfinder was the sight distance available to a motorist at the point where a “pass with care” sign was placed, and we approved introduction of a contested film even though that sight distance was the “sole matter” that the film illustrated. In Green, supra at 452, we approved introduction of a movie that helped prove the defendant’s contention that “the frontal impact of plaintiffs’ vehicle with the tree . . . caused the axle fracture” instead of the fracture causing the accident. Similarly, in Muniga, supra at 758, we approved introduction of test results used to show that separated engine mounts resulted from an accident rather than caused the accident, contrary to the plaintiff’s theory of liability. Under Sumner, all this evidence would be inadmissible.

Sumner places litigants on the horns of a dilemma that will make it virtually impossible to introduce and use evidence of sufficiently similar tests and experiments in future cases. On the one hand, under Smith and its progeny, proponents of this evidence will have to argue that, notwithstanding any differences, the tests and experiments are similar enough to be useful to the jury in deciding the factual questions surrounding the accident. But, in the process of doing this, they will likely fall prey to the Sumner rule against using this evidence to prove contested factual questions. Sumner itself illustrates this dilemma. The opinion correctly recites the rule that “[rjesults obtained in an out-of-court experiment are not admissible unless the conditions of the experiment are sufficiently similar to those involved in the particular case,” but then incongruously criticizes the defendant’s experts for “implicitly suggestpng] the tests had been conducted under conditions similar to those of the accident.” Sumner, supra at 696-697.

I find this to be an unfortunate approach, considering how useful this kind of evidence has been to factfinders in the precedents discussed above. A much better approach is that employed in those precedents, to allow the introduction of experiments and tests that are sufficiently similar to the accident at issue and, thus, are useful in illustrating general principles surrounding that accident. I trust that the jury can afford such evidence its proper weight, enlightened by the litigants’ cross-examination and arguments regarding relevant dissimilarities and their significance.³ But for Sumner, I would affirm the trial court’s decision to allow the videotapes of the contested experiments into evidence.

W. P. Cynar, J., concurred.

1 To the extent that Judge White bases reversal and remand on another ground, i.e., that the trial court incorrectly decided that there was insufficient similarity between the crash test results and the accident, I would disagree. The trial court is granted “wide discretion” with respect to this relevancy question. Muniga v General Motors Corp, 102 Mich App 755, 758-759; 302 NW2d 565 (1980). Accord Przeradski v Rexnord, Inc, 119 Mich App 500, 506; 362 NW2d 541 (1982), remanded on other grounds 417 Mich 1100.19 (1983) (the decision to admit sufficiently similar test results rests within the “sound discretion” of the trial court). We reverse only if there is an abuse of discretion. Kirk v Ford Motor Co, 147 Mich App 337, 344; 383 NW2d 193 (1985). An abuse of discretion will be found only when the decision below is “ ‘so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ” Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992), quoting Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). I do not conclude that there was any abuse of discretion under this test.

2 Under these precedents, experiments that are not introduced to recreate an accident are nonetheless improperly admitted if there is insufficient similarity and the tests are of no use to the factfinder. Pelley v Peterbilt Motors Co, 133 Mich App 664, 669; 350 NW2d 787 (1984); Przeradski, supra at 510-511 (R. M. Maher, P.J., dissenting).

3 Judge White worries that the jury might be “lulled or confused into” thinking that these tests and experiments depict “what actually occurred.” Ante at n 10. I do not share this lack of confidence in jurors; surely, we trust them to sort through distinctions much more subtle than this on a regular basis.