Order Michigan Supreme Court

Lansing, Michigan 

June 22, 2007 Clifford W. Taylor,

 Chief Justice 

133178 & (79)(83)(84)(85)(88)(89)(95)(101) Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. PHILLIP R. CHAPIN and BERNIE MAE Stephen J. Markman, CHAPIN, Justices 

Plaintiffs-Appellees, 

v SC: 133178 

 COA: 257917 

Wayne CC: 03-324775-NP

A & L PARTS, INC., AMCHEM PRODUCTS, 

AMERICAN STANDARD, BONDEX 

INTERNATIONAL, INC., BORG WARNER

CORPORATION, CARRIER CORPORATION, 

DAP, INC., DANA CORPORATION, DURO 

DYNE CORPORATION, GEORGIA PACIFIC 

CORPORATION, GOODRICH CORPORATION, 

HERCULES CHEMICAL COMPANY, 

INDIANHEAD INDUSTRIES, INC., KELSEY 

HAYES COMPANY, McCORD CORPORATION, 

METROPOLITAN LIFE INSURANCE COMPANY,

PARKER HANNIFIN CORPORATION, PNEUMO 

ABEX CORPORATION, ROYAL INDUSTRIES, 

INC., AII ACQUISITION CORPORATION, 

CARQUEST AUTO PARTS OF PINCKNEY

MICHIGAN, INC., GEORGE FAN SERVICE,

INC. & ALL EQUIPMENT COMPANY, 

STANDCO INDUSTRIES, INC., and MICHIGAN

MEDICAL COUNSEL,

Defendants, 

and 

DAIMLERCHRYSLER CORPORATION, 

 Defendant-Appellant, 

and 

FORD MOTOR COMPANY, GENERAL 

MOTORS CORPORATION, and HONEYWELL, 

INC., f/k/a ALLIED SIGNAL CORPORATION,

Defendants-Appellees. 

_________________________________________/ 
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On order of the Court, the motion for immediate consideration is GRANTED. 

The motions for admission pro hac vice are GRANTED. The motions for leave to file 

briefs amicus curiae are GRANTED. The application for leave to appeal the January 30, 

2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are 

not persuaded that the questions presented should be reviewed by this Court. 

MARKMAN, J., dissents and states as follows: 

I respectfully dissent. I would grant leave to appeal to determine whether the trial 

court acted properly under MRE 702 to “ensure that any expert testimony admitted at 

trial is reliable.” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780 (2004). The trial 

court denied defendants’ motion to exclude plaintiff’s expert testimony in this asbestos 

products-liability action, and the Court of Appeals affirmed in a split decision with Judge 

O’Connell dissenting. 

For the following reasons, I believe that this is a case of substantial significance 

that ought to be heard by this state’s highest court: (a) the sole issue in this appeal 

concerns the effect of plaintiff’s occupational exposure to asbestos, a product whose 

carcinogenic qualities have given rise to one of the most costly products-liability crises 

ever within our nation’s legal system; (b) in particular, this appeal concerns occupational 

exposure to asbestos fibers contained in automotive brake linings and, therefore, directly 

implicates the nation’s automobile industry in the asbestos products-liability crisis; (c) 

this appeal directly affects this Court’s, and our Legislature’s, efforts to replace the 

Davis-Frye test for assessing expert scientific testimony with the United States Supreme 

Court’s Daubert test in MRE 702 and MCL 600.2955; (d) this appeal also affects this 

Court’s efforts in adopting an administrative order concerning asbestos litigation in July 

of 2006 to ensure that asbestos litigants are subject to regular legal standards of due 

process; (e) our legal system’s treatment of plaintiff’s expert’s testimony in this case will 

serve as precedent for how similar testimony will be treated in the substantial number of 

asbestos cases queued in this system; (f) the Court of Appeals published decision, in 

which the concurring judge held that the trial court’s opinion “epitomized a proper 

exercise of discretion,” will constitute controlling caselaw in this state concerning the 

responsibilities of trial courts in assessing expert scientific testimony under MRE 702; (g) 

the Wayne circuit judge in this case has been given individual responsibility for the 

asbestos docket of this state and, absent further review by this Court, he will indelibly 

have set the rules for expert scientific testimony in asbestos litigation, if not the rules for 

generally assessing expert scientific testimony in complex litigation; and (h) there is 

perhaps no state whose businesses and economy have been more severely harmed in 

recent years by the introduction of what later proved to be dubious scientific testimony 

than Michigan; given the potentially far-reaching impact of this case, it is essential that 

the science communicated by plaintiff’s expert be thoroughly evaluated under the 

standards that we and the Legislature have set forth in MRE 702 and § 2955. 

MRE 702 provides: 
 

 

 

 

 

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If the court determines that scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by knowledge, 

skill, experience, training, or education may testify thereto in the form of an 

opinion or otherwise if (1) the testimony is based on sufficient facts or data, 

(2) the testimony is the product of reliable principles and methods, and (3) 

the witness has applied the principles and methods reliably to the facts of 

the case. 

MCL 600.2955(1) provides: 

(1) In an action for the death of a person or for injury to a person or 

property, a scientific opinion rendered by an otherwise qualified expert is 

not admissible unless the court determines that the opinion is reliable and 

will assist the trier of fact. In making that determination, the court shall 

examine the opinion and the basis for the opinion, which basis includes the 

facts, technique, methodology, and reasoning relied on by the expert, and 

shall consider all of the following factors: 

(a) Whether the opinion and its basis have been subjected to 

scientific testing and replication. 

(b) Whether the opinion and its basis have been subjected to peer 

review publication. 

(c) The existence and maintenance of generally accepted standards 

governing the application and interpretation of a methodology or technique 

and whether the opinion and its basis are consistent with those standards. 

(d) The known or potential error rate of the opinion and its basis. 

(e) The degree to which the opinion and its basis are generally 

accepted within the relevant expert community. As used in this subdivision, 

“relevant expert community” means individuals who are knowledgeable in 

the field of study and are gainfully employed applying that knowledge on 

the free market. 

(f) Whether the basis for the opinion is reliable and whether 

experts in that field would rely on the same basis to reach the type of 

opinion being proffered. 

(g) Whether the opinion or methodology is relied upon by experts 

outside of the context of litigation. 

The United States Supreme Court has concluded under a similar federal court rule 

that “the trial judge must ensure that any and all scientific testimony or evidence admitted 

is not only relevant, but reliable.” Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 

579, 589 (1993). This Court has concluded that MRE 702 “incorporate[s] Daubert’s 

standards,” Gilbert supra at 781, and therefore that the judiciary must play a “gatekeeper 
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role” under this rule in the admission of expert scientific testimony. Id. at 780. “MRE 

702 has imposed an obligation on the trial court to ensure that any expert testimony 

admitted at trial is reliable.” Id. at 780. Indeed, “the trial court’s obligation under MRE 

702 is even stronger than that contemplated by [the federal rule] because Michigan’s rule 

specifically provides that the court’s determination is a precondition to admissibility.” Id. 

at 780 n 46. “This gatekeeper role applies to all stages of expert analysis,” and 

“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 that data.” Id. at 782 

(emphasis in original). “Careful vetting of all aspects of expert testimony is especially 

important when an expert provides testimony about causation.” Id. Moreover, § 2955 

complements and reinforces MRE 702. “The Legislature enacted [§] 2955(1) in an 

apparent effort to codify the United States Supreme Court’s holding in Daubert. . . .” 

Greathouse v Rhodes, 242 Mich App 221, 238 (2000), rev’d on other grounds 465 Mich 

885 (2001). Application of these standards constitutes an additional aspect of the trial 

court’s “gatekeeper role.” Clerc v Chippewa Co War Mem Hosp, 477 Mich 1067-1068 

(2007). 

The lone issue on appeal concerns whether the trial court abused its discretion in 

concluding that plaintiff’s expert’s testimony satisfied the standards of MRE 702 and § 

2955. It is not this Court’s function to compare the parties’ expert testimonies, but only 

to determine whether the trial court properly carried out its “gatekeeper role” in admitting 

plaintiff’s expert’s testimony. While it is the jury’s responsibility to compare 

testimonies, it is the trial court’s responsibility to determine whether such testimonies 

meet threshold standards for reliability sufficient to warrant their presentation to the jury. 

In reviewing the trial court, I would grant leave to appeal to consider at least the 

following questions arising from the testimony of plaintiff’s expert, Dr. Richard A. 

Lemen: 

(1) Whether it is relevant in assessing the reliability of Dr. Lemen’s testimony that 

there are 15 epidemiological studies that have failed to identify an increased risk of 

mesothelioma among brake mechanics and no epidemiological studies to the contrary. 

(2) Whether the trial court abused its discretion in concluding that Dr. Lemen’s 

opinion is “generally accepted” by the relevant scientific community when it is contrary 

to each of the 15 epidemiological studies that have been carried out concerning the 

relationship between asbestos exposure by brake mechanics and mesothelioma. Cf. 

Nelson v Amer Sterilizer Co (On Remand), 223 Mich App 485, 488 (1997)(“Where as 

here, no epidemiological study has found a statistically significant link . . . the expert 

testimony fails to exhibit the level of reliability required by MRE 702.”). 

(3) Whether the trial court sufficiently required Dr. Lemen to explain the 

shortcomings of existing epidemiological studies involving brake mechanics and 

mesothelioma as a precondition to considering epidemiological studies drawn from what 

are arguably significantly different occupations that necessarily require extrapolation. 
5 

(4) Whether the trial court abused its discretion in allowing Dr. Lemen in his 

conclusions to extrapolate from studies addressing higher levels of asbestos exposure to 

conditions involving lower levels of exposure. 

(5) Whether, where the lowest level at which epidemiological studies have shown 

a causal relationship between asbestos exposure and mesothelioma allegedly is 9 fibers 

per cubic centimeter, the trial court abused its discretion in allowing Dr. Lemen to 

extrapolate from such studies to testify concerning an occupational environment in which 

exposure levels to asbestos are less than 0.1 fibers per cubic centimeter. 

(6) Whether the trial court abused its discretion in allowing Dr. Lemen to testify 

concerning “peak” levels of asbestos exposure by brake mechanics exceeding 0.1 fibers 

per cubic centimeter without assessing whether only total asbestos exposure levels are 

relevant in establishing a relationship with mesothelioma. 

(7) Whether the trial court abused its discretion in allowing Dr. Lemen in his 

conclusions to extrapolate from studies concerning types of asbestos fibers different from 

those to which brake mechanics are typically exposed. 

(8) Whether the trial court abused its discretion in allowing Dr. Lemen in his 

conclusions to extrapolate from studies concerning sizes of asbestos fibers different from 

those to which brake mechanics are typically exposed. 

(9) Whether the trial court abused its discretion in allowing Dr. Lemen in his 

conclusions to extrapolate data from occupations arguably involving different types of 

asbestos exposure, such as asbestos mining and factory work. 

(10) Whether the trial court was required to assess the statistical methods, and the 

reliability of such methods, by which Dr. Lemen “extrapolated” from various asbestos 

studies. 

(11) Whether the trial court was required to have Dr. Lemen identify all the 

specific asbestos studies from which his conclusions had been extrapolated. 

(12) Whether, where Craig v Oakwood Hosp, 471 Mich 67, 93 (2004), counseled 

that “correlation is not causation,” and that it constitutes a lapse in logic to “infer that A 

causes B from the mere fact that A and B occur together,” the trial court was required to 

undertake adequate precautions to ensure that a jury would not be confused by these 

distinct concepts and thereby conflate relationship with causation. 

(13) Whether the Court of Appeals abused its discretion in asserting that “studies 

have continued to confirm that asbestos causes mesothelioma, “Chapin v A & L Parts, 

Inc, 274 Mich App 122, 133 (2007), without distinguishing between levels of asbestos 

exposure, the nature of asbestos exposure, types and sizes of asbestos fibers, and the form 

of asbestos transmission. 

(14) Whether the trial court abused its discretion in observing that “no court in the 

country has felt that it was necessary to hold a hearing to determine whether auto 

mechanics exposed to asbestos in brake linings are at a greater risk for mesothelioma.” 
6 

(15) Whether there is an adequate scientific basis for Dr. Lemen’s statement that 

“there is no known safe exposure to asbestos below which it would not cause 

mesothelioma,” 274 Mich App at 135, and, if so, what that basis is. 

(16) Whether Dr. Lemen’s conclusion concerning a causal relationship between 

brake mechanics’ exposure to asbestos and mesothelioma was scientifically reliable, 

where it was allegedly based on the presence of asbestos in automobile friction products 

and the connection in arguably different occupational environments between asbestos 

exposure and mesothelioma. 

(17) Whether the trial court abused its discretion in asserting that there is 

affirmative evidence indicating a causal relationship between exposure to automobile 

friction products and mesothelioma, where defendants allege that the only support for this 

proposition consists of one article that was never introduced into evidence and a second 

article — Dr. Lemen’s — that did not assert this proposition but merely concluded that 

the evidence “by no means exonerates the brake mechanic from being susceptible to a 

causal relationship between asbestos exposure and mesothelioma.” 

(18) Whether, where Gilbert, supra at 789, asserts that the trial court must take 

care not to treat an issue of reliability of expert testimony as a matter of “weight,” rather 

than “admissibility,” the trial court here abused its discretion in enabling a jury to draw 

conclusions concerning the existence of a scientifically valid causal relationship between 

brake mechanics’ exposure to asbestos and mesothelioma. 

(19) Whether, where Gilbert, supra at 782, asserts that “[c]areful vetting of all 

aspects of expert testimony is especially important when an expert provides testimony 

about causation,” the trial court here abused its discretion in enabling a jury to draw 

conclusions concerning the existence of a scientifically valid causal relationship between 

brake mechanics’ exposure to asbestos and mesothelioma. 

(20) Whether the trial court properly assumed the relevance of precautionary 

warnings by the government concerning safe levels of asbestos exposure where plaintiff’s 

legal obligation is to prove a causal relationship between brake mechanics’ exposure to 

asbestos and mesothelioma. 

(21) Whether, where Gilbert, supra at 783, counsels that the trial court must take 

care under MRE 702 to avoid a “yawning ‘analytical gap’” between an expert’s 

testimony and the underlying data, the trial court adequately undertook to avoid such a 

gap in this case. 

(22) Whether, in view of Gilbert’s admonition, supra at 782, that the court’s 

“gatekeeper role” under MRE 702 “applies to all stages of expert analysis,” the trial court 

“searchingly” attempted to ensure that the scientific method was adhered to at every 

linkage point in Dr. Lemen’s argument and that both his data and his intermediate and 

final conclusions drawn from such data were reliable. 

(23) Whether it is significant, in terms of the MRE 702 evaluation, that an expert 

witness would assert concerning the causal relationship between brake mechanic work 
7 

and mesothelioma, “[T]he answer is that time will tell . . . and we will know an answer 

probably at some point in time. But we’re not going to know that answer right now . . . 

what I am saying is that there is adequate information in my opinion in the literature to 

show that brake repair workers have the potential to be exposed to concentrations of 

asbestos that can cause disease.” 

(24) Whether it is significant, in terms of the MRE 702 evaluation, that an expert 

witness would respond to a question concerning whether there is a causal relationship 

between exposure to small asbestos fibers and mesothelioma, “I cannot state to a 

reasonable degree of scientific certainty that they do or do not.” 

(25) Whether, where Craig, supra at 93, states that “the connection between the 

defendant’s negligent conduct and the plaintiff’s injuries [cannot be] entirely 

speculative,” and that plaintiff cannot satisfy his or her burden “by showing only that the 

defendant may have caused his injuries,” id. at 87, plaintiff’s expert’s testimony was 

sufficient to satisfy MRE 702. 

(26) Whether it is relevant that Dr. Lemen’s written work, which did not 

apparently conclude that mesothelioma is caused by long-term exposure to automotive 

friction products, was peer-reviewed, whereas his actual testimony, which concluded that 

such a causal relationship existed, was not peer-reviewed. 

(27) Whether the Court of Appeals misapprehended the trial court’s 

responsibilities in concluding that the “gatekeeper” role “does not require the trial court 

to search for absolute truth,” and whether it is nonetheless the role of the “gatekeeper” to 

ensure that the jury is presented only with sufficiently reliable scientific evidence to assist 

the latter in determining “absolute truth.” 

(28) Whether the trial court impermissibly shifted the burden of proof among the 

parties by commenting on the alleged absence of evidence concerning a causal 

relationship between asbestos exposure and mesothelioma. 

(29) Whether, where it appears that at least some forms of mesothelioma are 

idiopathic, there is a burden on an expert witness to address why a party’s mesothelioma 

was not of such a nature. 

(30) Whether epidemiological studies are merely the “best evidence” for 

establishing causation between asbestos exposure and mesothelioma, as acknowledged by 

plaintiff’s expert, or constitute the “only way” of establishing such causation, as argued 

by defendant’s expert. 

(31) Whether the trial court misapprehended its responsibilities under MRE 702 

and abused its discretion when it asserted, “It is not really important to have an 
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8 

epidemiological study to determine whether the risk of cancer is increased by asbestos 

exposure in every occupation. What is important to know is the permissible exposure 

level and to make a determination whether in that work or occupation an employee is 

exposed to asbestos in excess of the permissible exposure levels.” 

(32) Whether, in “assisting the trier of fact” in the exercise of its “gatekeeper 

role,” there are any responsibilities imposed on the trial court that go beyond ensuring the 

reliability of evidence, such as, for example, ensuring the logic or clarity of its 

presentation to the jury. 

(33) Whether the trial court and the Court of Appeals majority clearly recognized 

that the Davis-Frye standard of evaluating expert scientific evidence had been superseded 

in this state by the Daubert standard. 

I do not purport to know the answers to each of these questions. But I do believe 

that it is essential to the fairness and integrity of the justice system that these questions be 

reviewed and answered. These questions go to the heart of the differences between the 

Davis-Frye and Daubert tests. Defendants have raised legitimate questions concerning 

the application of MRE 702 and § 2955. Therefore, I would grant leave to appeal. 

0619 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

June 22, 2007 

 Clerk