Michigan Supreme Court 

# Order

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, GOODRI CH CORPORATION, HERCULES CHEMICAL COMPANY, INDIANHEAD INDUSTRI ES, INC., KELSEY HAYES COMPANY, McCO RD CORPORATION, METROPOLITAN LIFE INSURANCE COMPANY, PARKER HANNIFIN CORP ORATION, 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 GR ANTED. The motions for leave to file briefs amicus curiae are GRANTED. The app lication 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 presente d should be reviewed by this Court.

M ARKMAN , J., dissents and states as follows:
I respectfully dissent. I woul d grant leave to appeal to determine whether the trial court acted properly under MR E 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 expe rt testimony in this asbestos products-liability action, and th e Court of Appeals affirmed in a split decision with Judge O’Connell dissenting.
For the following reasons, I be lieve that this is a case of substantial significance that ought to be hear d by this state’s highest court: (a ) the sole issue in this appeal concerns the effect of plaintiff’s occupati onal 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 concer ns occupational exposure to asbestos fibers contained in auto motive brake linings and, therefore, directly implicates the nation’s automobi le 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 ar e subject to regular le gal 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 simila r testimony will be treated in the substantia l number of asbestos cases queued in this system; (f) th e 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 expe rt scientific testimony under MRE 702; (g) the Wayne circuit judge in this case has be en given individual responsibility for the asbestos docket of this state and, absent fu rther review by this Court, he will indelibly have set the rules for expert scientific testim ony in asbestos litigation, if not the rules for generally assessing expert scientific testim ony in complex litigati on; and (h) there is perhaps no state whose businesses and econom y have been more severely harmed in recent years by the introduction of what later proved to be dubious scientific testimony than Michigan; given th e potentially far-reaching impact of this case, it is essential that the science communicated by plaintiff’s expert be thor oughly evaluated under the standards that we and the Legislature ha ve set forth in MRE 702 and § 2955.

MRE 702 provides:3

If the court determines that scientif ic, 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 relia ble 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 pe rson or for injury to a person or property, a scientific opini on rendered by an otherwise qualified expert is
not admissible unless the court determin es 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 re asoning 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 maintenan ce of generally accepted standards governing the application and interpre tation of a methodol ogy or technique and whether the opinion and its basis ar e consistent with those standards.

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

(e) The degree to which the opi nion and its basis are generally accepted within the relevant expert comm unity. As used in this subdivision, “relevant expert community” means i ndividuals 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 th e same basis to reach the type of opinion being proffered.

(g) Whether the opinion or me thodology is reli ed upon by experts outside of the context of litigation.

The United States Supreme Court has conclu ded under a similar federal court rule that “the trial judge must ensure that any an d 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 conc luded that MRE 702 “incorporate[s] Daubert ’s standards,” Gilbert supra at 781, and therefore that the judiciary must play a “gatekeeper4

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 tria l 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 determ ination 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, no t just of the data underlying expert testimony, but also of the manner in which the expert interp rets and extrapolates from that data.” Id . at 782 (emphasis in original). “Careful vetting of a ll aspects of expert testimony is especially important when an expert provi des 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 ot her grounds 465 Mich 885 (2001). Application of th ese standards constitutes an add itional 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 whethe r the trial court abused its discretion in concluding that plaintiff’s expert’s testim ony satisfied the standards of MRE 702 and §
2955. It is not this Court’ s function to compare the partie s’ expert testimonies, but only to determine whether the trial court properly carried out its “gatekeep er role” in admitting plaintiff’s expert’s testimony. While it is the jury’s resp onsibility to compare testimonies, it is the trial court’s responsibi lity to determine whether such testimonies
meet threshold standards for relia bility sufficient to warrant thei r presentation to the jury.
In reviewing the trial court, I would grant leave to appeal to consider at least the following questions arising fro m 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 wh en 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 epidemiologica l studies involving brake mechanics and mesothelioma as a precondition to consider ing epidemiological st udies drawn from what are arguably significantly different occupations that necessarily require extrapolation.5

(4) Whether the trial court abused its discretion in allowi ng Dr. Lemen in his conclusions to extrapolate from studies addre ssing 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 con cerning 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 disc retion in allowing Dr. Lemen to testify concerning “peak” levels of asbestos exposu re by brake mechanics exceeding 0.1 fibers per cubic centimeter without a ssessing whether only total asbe stos exposure levels are relevant in establishing a relationship with mesothelioma.

(7) Whether the trial court abused its discretion in allowi ng 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 allowi ng Dr. Lemen in his conclusions to extrapolate from studies concerni ng sizes of asbestos fibers different from those to which brake mechanics are typically exposed.

(9) Whether the trial court abused its discretion in allowi ng Dr. Lemen in his conclusions to extrapolate data from occupati ons arguably involving different types of asbestos exposure, such as as bestos mining and factory work.

(10) Whether the trial court was required to assess the statisti cal methods, and the reliability of such methods, by which Dr. Lemen “extrapol ated” from various asbestos
studies.

(11) Whether the trial court was require d to have Dr. Leme n identify all the specific asbestos studies from which hi s 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 to gether,” the trial court was required to undertake adequate precautions to ensure th at a jury would not be confused by these distinct concepts and thereby conf late 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 betw een 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 disc retion in observing th at “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 greate r risk for mesothelioma.”6

(15) Whether there is an adequate scien tific basis for Dr. Le men’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 co ncerning 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 o ccupational 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 betwee n exposure to automobile friction products and mesothelio ma, where defendants allege th at the only support for this proposition consists of one article that was never introduced into ev idence and a second
article — Dr. Lemen’s — that did not assert this proposition but me rely concluded that the evidence “by no means exonerates the brake mechan ic 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 expe rt testimony as a matter of “weight,” rather than “admissibility,” the trial co urt here abused its discretion in enabling a ju ry to draw conclusions concerning the existence of a scie ntifically 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 im portant 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 scie ntifically valid causal relationship between brake mechanics’ exposure to asbestos and mesothelioma.

(20) Whether the trial court properly a ssumed the relevance of precautionary warnings by the government conc erning safe levels of asbest os exposure where plaintiff’s legal obligation is to prove a causal relati onship 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 da ta, 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 MR E 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 da ta and his intermediate and
final conclusions drawn from such data were reliable.

(23) Whether it is significant, in terms of the MRE 702 evaluatio n, that an expert witness would assert concerning the causal relationship between brake mechanic work7

and mesothelioma, “[T]he answer is that time will tell . . . and we will know an answer probably at some point in tim e. But we’re not going to kno w that answer right now . . . what I am saying is that there is adequate in formation in my opinion in the literature to show that brake repair worker s have the potential to be e xposed to concentrations of
asbestos that can cause disease.”

(24) Whether it is significant, in terms of the MRE 702 evaluatio n, that an expert witness would respond to a question concerni ng whether there is a causal relationship between exposure to small asbestos fibers and mesothelioma, “I cannot state to a reasonable degree of scientific certai nty that they do or do not.”

(25) Whether, where Craig

, supra at 93, states that “t he connection between the defendant’s negligent conduct and the plaintiff’s inju ries [cannot be] entirely speculative,” and that pl aintiff 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 D r. Lemen’s written wo rk, which did not apparently conclude that mesothelioma is caused by long-term ex posure to automotive friction products, was peer-reviewed, whereas his actual testimony, which concluded that such a causal relationship exis ted, was not peer-reviewed.

(27) Whether the Court of Appeal s misapprehended the trial court’s responsibilities in concluding that the “gatekeepe r” 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 su fficiently reliable scientific evidence to assist the latter in determining “absolute truth.”

(28) Whether the trial court impermissibl y 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 w itness to address why a party’s mesothelioma
was not of such a nature.

(30) Whether epidemiological studies are merely the “b est evidence” for establishing causation between asbestos expos ure and mesothelioma, as acknowledged by plaintiff’s expert, or constitute the “only way” of establishi ng 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 im portant to have an_______________________________________ __ 8

epidemiological study to dete rmine whether the risk of can cer is increased by asbestos exposure in every occupation. What is im portant 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 fa ct” in the exercise of its “gatekeeper role,” there are any responsib ilities imposed on the trial court that go beyond ensuring the reliability of evidence , such as, for example, ensuri ng the logic or clarity of its presentation to the jury.

(33) Whether the trial court and the Cour t of Appeals majority clearly recognized
that the Davis-Frye standard of evaluating expert scien tific 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 th at 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. Th erefore, I would grant leave to appeal.

0619 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

June 22, 2007

Clerk