If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

NICOLE ANN JANOWSKI, as Next Friend of 

ISABELLA CASE,

Plaintiff-Appellant,

UNPUBLISHED

July 11, 2019

v No. 340665

Genesee Circuit Court

DEERE & COMPANY, LC No. 14-103771-NI

Defendant-Appellee,

and

STARR CALLAHAN,

Defendant.

Before: M. J. KELLY, P.J., and MARKEY and GLEICHER, JJ.

PER CURIAM.

Following a nine-day trial, a jury found no cause of action against Deere & Company in 

this product liability case involving a riding lawnmower. Plaintiff contends that the trial court’s 

erroneous evidentiary rulings and incomplete jury instructions led to an unjust result. Although 

we sympathize with plaintiff, we discern no prejudicial error and affirm.

I. BACKGROUND

Nicole Janowski filed suit against Deere & Company after her four-year-old daughter 

was injured in a riding lawnmower accident. The operator was maneuvering the mower in 

reverse and collided with the child. The mower blades continued moving as the operator 
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reversed, striking the child and amputating a portion of her heel.1 Janowski complained that the 

mower was defectively designed and unreasonably dangerous because it was not equipped with 

“no-mow-in-reverse” or NMIR technology. This technology, which was available when the 

mower was manufactured in 1994, works in one of three ways. One forces the operator to shut 

off the blades before shifting into reverse. If the operator fails to do so, the engine shuts down. 

The second automatically disengages the blades when the operator shifts into reverse. The third 

prevents the operator from shifting into reverse if the blades are engaged. Janowski also 

challenged the adequacy of the warnings on the mower.

The parties presented competing witnesses regarding the utility and effectiveness of 

NMIR technology and whether it should have been incorporated into Deere riding mowers in 

1994. At issue on appeal is the pretrial deposition testimony of David Stricker, Deere’s sole 

expert witness and its “corporate representative.” Stricker is an agricultural engineer who 

worked for Deere for 40 years and continues to consult with the company. Stricker served as the 

manager of Deere’s product development and product engineering services divisions. He 

managed the group that designed the mower deck used in the subject tractor. Stricker described 

in considerable detail the design choices that went into the production of the mower, a process in 

which he was directly involved. Stricker also chaired Deere’s product safety committee from 

1999 through 2009.

Stricker testified based upon his personal experience and personal knowledge, rather than 

upon a review of articles and peer-reviewed literature. He described in great detail the extensive 

testing process Deere used to explore NMIR technology and other safety features. Stricker noted 

that Deere decided against incorporating an NMIR feature in its riding lawnmowers because it 

caused the engine to cut out frequently and interfered with the use of snowblower attachments on 

the machines. Deere was concerned that users would disable the feature to improve functionality 

and accidentally impact other safety devices or injure themselves. Deere also determined that 

the NMIR features then available were not sufficiently effective. They allowed the mower 

blades to continue moving for up to 12 feet while the mower reversed. This was the zone in 

which most backover injuries occurred. In these regards, Stricker disagreed with plaintiff’s 

mechanical engineering expert, Kevin Sevart, who opined that Deere should have used an NMIR 

system similar to that used by MTD, a Deere competitor. Stricker expressed that Sevart failed to 

support his opinion with any statistical analyses or data.

Stricker opined based on his review of incident reports filed with the company that the 

subject mower “has been arguably one of Deere’s safest mowers.” The tractor had several safety 

features built in, including a blade housing extending below the blade plane, a narrow discharge 

pattern, a longer distance from the blade to the back of the tractor, and “a very slow reverse 

speed” “[s]o if the operator does begin to back up, he’s not doing so very quickly and doesn’t 

cover a lot of ground.” The tractor also “has basically no blind spots,” as nothing obstructs the 

operator’s ability to “turn around and see” behind.

 1 Janowski filed suit against the operator of the lawnmower as well. The jury entered a sizable 

judgment against her and she is not a party to this appeal.
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Stricker based his opinion that the warnings used on the tractor were not defective on his 

experience in designing products for Deere, along with the training he received early in his 

career. He explained that based on his direct involvement in Deere’s engineering processes, he 

“fully understand[s] how Deere not only develop[s] the warnings and labels for each individual 

product,” but was also familiar with the “standards we try and follow when we do that.” Deere’s 

safety committee reviews and approves the warnings.

Before trial, plaintiff sought to exclude Stricker’s testimony, asserting that his failure to 

produce any literature or other information supporting his expert opinions rendered those 

opinions unreliable. The Supreme Court’s decision in Elher v Misra, 499 Mich 11; 863 NW2d 

722 (2014), formed the centerpiece of plaintiff’s legal argument. Plaintiff argued that Elher

stands for the proposition that an expert must support his testimony with “evidence that his 

opinion [is] generally accepted in the relevant expert community,” not just his “subjective belief”

and “say so.”

Deere responded that Stricker did not bring any documents to his deposition because 

Deere had already produced the relevant materials during discovery. Those documents included 

the ANSI standards,2 the operator’s manual for the tractor, video documentation of the tractor’s 

inspection, photos of the tractor, and approximately 900 pages of materials documenting Deere’s 

study of backover blade injuries. Deere emphasized that much of Stricker’s testimony flowed 

from his personal knowledge of Deere’s design process, and that Stricker was uniquely qualified 

to testify in that regard. Plaintiff never disputed Stricker’s qualifications, Deere insisted, and 

failed to recognize that Stricker’s opinions were based on his personal experience with the 

tractor’s design.

The trial court denied plaintiff’s motion after entertaining extensive oral argument, during 

which Deere’s counsel suggested that plaintiff should have sought a Daubert3 hearing instead. 

Counsel asserted that Stricker would have “pass[ed] the Daubert test with flying colors.” The 

court found Stricker qualified to testify as an expert based upon his qualifications and as the 

materials upon which he based his opinions would be admitted into evidence.

The trial of this case consumed nine days. Relevant to the claims against Deere, plaintiff 

presented the testimony of two liability experts: Sevart and Lila Laux, an industrial psychologist 

and an expert in human factors. Sevart testified that the tractor was unreasonably dangerous and 

defectively designed because it did not include an NMIR feature. Sevart acknowledged that 

 2 In 2003, the American National Standards Institute (ANSI) issued ANSI B71.1, which 

recommended for the first time an NMIR feature on riding mowers and was “intended to reduce 

the possibility of inadvertent blade contact at the rear of the machine by removing power from 

the mower blade during reverse operation, by increasing the operator’s awareness of reverse 

operation, and by encouraging the operator to find alternate ways to mow instead of the reverse 

direction.”

3 Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
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Deere had tested such features, but believed that “convenience overruled safety” for the 

manufacturer. NMIR devices have proven effective, Sevart claimed, with “no accidents” 

reported from their use. He had never heard of an injury caused by an NMIR-equipped mower 

that occurred when the blade was spinning down. In his opinion, MTD’s NMIR system would 

have prevented the injuries sustained in this case.

Dr. Laux’s testimony concentrated on the warnings used on the tractor. She opined that 

warnings are not as effective as guards, and that a reasonable manufacturer aware of a known 

hazard should design the hazard out of the device rather than relying on warnings to keep users 

safe.

Plaintiff also presented the videotaped deposition testimony of Steve Eklund, a retired 

Deere engineer. Eklund had had been tasked to chair a project called Engineering Order 883. 

His charge was to perform a preliminary study of past accidents involving riding mowers, to 

determine the contributing factors to backover accident, and to develop engineering solutions. 

During this study Eklund collected reports of child backover injuries, some going back 20 years. 

The study did not result in a recommendation for the integration of NMIR technology.

Stricker testified as Deere’s only liability expert. He admitted that Deere was aware of 

the danger of backover accidents involving children. But Stricker’s testimony mostly focused on 

his Deere experience with the design of the tractor and the reasons Deere rejected an NMIR 

feature. The solutions for this tractor, Stricker asserted, included design features intended to 

reduce the need for reverse travel: a shorter turning radius, a mowing deck that allowed for 

trimming on both sides, and a discharge chute located in the back rather than a side. Deere 

rejected NMIR, Stricker explained, because it “didn’t meet the needs of the customer,” and 

because customers were “frustra[ted]” when they could not back up. According to Stricker, 

Deere had concluded that the MTD mower was a less safe machine, as it had a higher speed in 

reverse and could travel 10 to 11 feet before the blades actually stopped. 

Stricker also testified regarding Deere’s statistical analysis regarding the rarity of 

backover accidents, calculating that based on the number of mowers in service and the number of 

times per year on average each is used, there are more than 110,000,000 opportunities for 

backing up each year. Stricker estimated that “safety incidents” occur only in one out of 

1,000,000 uses. 

II. ADMISSION OF STRICKER’S TESTIMONY

Plaintiff contends that the trial court should have excluded Stricker’s testimony because it 

failed to meet the reliability requirements of MRE 702 and MCL 600.2955(1), as interpreted in

Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993), and 

Elher, 499 Mich 11. We review for an abuse of discretion a trial court’s decision regarding the 

admission of evidence. Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). Despite 

that Stricker did not support his opinion with peer-reviewed literature, the court acted within its 

discretion in finding Stricker’s reliability supported on other grounds.
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A

MRE 702 governs the admission of expert testimony: 

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.

This rule incorporates the standards of admissibility set forth in Daubert. Gilbert v 

DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004). Daubert focuses on 

evidentiary reliability. It instructs trial courts to “determine at the outset . . . whether the expert 

is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand 

or determine a fact in issue.” Daubert, 509 US at 592. “This entails a preliminary assessment of 

whether the reasoning or methodology underlying the testimony is scientifically valid and of 

whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-

593.

A Daubert analysis does not hinge on discovering “absolute truth” or “resolv[ing]

genuine scientific disputes.” Chapin v A & L Parts, Inc, 274 Mich App 122, 127; 732 NW2d 

578 (2007) (opinion by DAVIS, J.). Rather, the trial court is tasked with filtering out unreliable 

expert evidence. “The inquiry is into whether the opinion is rationally derived from a sound 

foundation.” Id. at 139. “The standard focuses on the scientific validity of the expert’s methods 

rather than on the correctness or soundness of the expert’s particular proposed testimony.” 

People v Unger, 278 Mich App 210, 217-218; 749 NW2d 272 (2008).

In Kumho Tire Co, Ltd v Carmichael, 526 US 137; 119 S Ct 1167; 143 L Ed 2d 238 

(1999), a product liability case, the United States Supreme Court reviewed and clarified the 

reliability principles advanced in Daubert. The Supreme Court held that engineering testimony, 

like the medical evidence considered in Daubert, must pass muster as reliable under FRE 702. 

Kumho, 526 US at 141-142. The Court elucidated that the analysis is tied to context: the facts of 

the case, and the nature of the opinions being offered.

We also conclude that a trial court may consider one or more of the more specific 

factors that Daubert mentioned when doing so will help determine that 

testimony’s reliability. But, as the Court stated in Daubert, the test of reliability 

is “flexible,” and Daubert’s list of specific factors neither necessarily nor 

exclusively applies to all experts or in every case. Rather, the law grants a district 

court the same broad latitude when it decides how to determine reliability as it 

enjoys in respect to its ultimate reliability determination. [Id.]

The overarching question is whether the expert’s testimony “ ‘has a reliable basis in the 

knowledge and experience of [the relevant] discipline.’ ” Id. at 149, quoting Daubert, 509 US at 

592.
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In Kumho, 526 US at 150, the Court explicitly recognized that in some cases involving 

engineering evidence, “the relevant reliability concerns may focus upon personal knowledge or 

experience.” In Elher, 499 Mich at 25, the Michigan Supreme Court implicitly expressed the 

same view by pointing out that the Daubert factors are relevant to an inquiry under MRE 702 

“even if all of the factors may not necessarily apply in determining the reliability of scientific 

testimony.” Our Supreme Court emphasized, “[I]t is within a trial court’s discretion how to 

determine reliability.” Id.

MCL 600.2955(1) must also inform a trial court’s consideration of reliability. The statute 

provides in relevant part:

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. [Id.]

Four of the seven factors identified in MCL 600.2955(1) (subparts (a)-(d)) derive directly from 

Daubert, 509 US at 593-594, and overlap with the components of MRE 702. This Court has 

held that each of these statutory factors need not favor the proposed expert’s opinion. Chapin,

274 Mich App at 137 (opinion by DAVIS, J.). It suffices that “the opinion is rationally derived 

from a sound foundation.” Id. at 139. Kumho, 526 US at 151, posits that a similar approach 
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governs the application of FRE 702: “Daubert . . . made clear that its list of factors was meant to 

be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every 

instance in which the reliability of scientific testimony is challenged.”

Elher, the focal point of plaintiff’s argument, is inapposite for several reasons. Elher was 

a medical malpractice case that arose from laparoscopic gallbladder surgery. During the 

procedure the defendant clipped the common bile duct rather than the cystic duct. Elher, 499 

Mich at 14-15. Plaintiff’s expert, Dr. Paul Priebe, testified that the defendant committed 

malpractice by clipping the common bile duct. But Dr. Priebe was unable to cite any medical 

literature supporting his opinion that a surgeon who clips the wrong duct has violated the 

standard of care. Id. at 15-17. The trial court excluded Dr. Priebe’s testimony based on his 

failure to demonstrate its reliability by providing evidence that any other physicians, or the peerreviewed literature, shared his standard-of-care view. Id. at 17-18.

This Court reversed, holding that Dr. Priebe’s qualifications and extensive experience 

with gall bladder surgery sufficed to demonstrate the reliability of his opinions, and that the 

circuit court had abused its discretion by precluding their admission. Elher v Misra, 308 Mich 

App 276, 278; 870 NW2d 335 (2014). The Supreme Court disagreed and reversed this Court, 

emphasizing that “it is within a trial court’s discretion how to determine reliability.” Elher, 499 

Mich at 25. The Supreme Court held that the trial court’s decision to strike Priebe’s testimony 

did not fall outside the range of principled outcomes, as “it is generally not sufficient to simply 

point to an expert’s experience and background to argue that the expert’s opinion is reliable and, 

therefore, admissible.” Id. at 23, quoting Edry, 486 Mich App at 642. The Supreme Court added 

that “[a] lack of supporting literature, while not dispositive, is an important factor in determining 

the admissibility of expert witness testimony.” Elher, 499 Mich at 23.

Aside from not producing any medical literature in support of his position, Priebe also 

failed to demonstrate that his approach was generally accepted. Id. at 25. “Priebe admitted that 

he knew of no one that shared his opinion,” the Court explained, and “[t]his was a relevant factor 

for the circuit court to consider.” Id. at 26. The Supreme Court summarized:

Plaintiff failed to provide any support for Priebe’s opinion that would demonstrate 

that it had some basis in fact and that it was the result of reliable principles or 

methods. While peer-reviewed, published literature is not always necessary or 

sufficient to meet the requirements of MRE 702, the lack of supporting literature, 

combined with the lack of any other form of support, rendered Priebe’s opinion 

unreliable and inadmissible under MRE 702. [Id. at 27.]

The Supreme Court’s determination that Priebe could not testify rested on two pillars not 

present here. First, in Elher the Court emphasized that the standard of review under MRE 702 is 

for an abuse of discretion. The trial court’s ruling in that case was not outside the range of 

principled outcomes, the Supreme Court declared. Here as well, the trial court’s decision to 

admit Stricker’s testimony is not devoid of a legal or factual basis. Second, Elher is a narrow 

decision that should be confined to its distinctive facts. In essence, the Supreme Court held that 

an expert may be disqualified under MRE 702 at the discretion of a trial court if the court finds 

the expert’s experience and qualifications insufficient to establish the reliability of the expert’s 

testimony. Elher bears no resemblance to this case.
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B

Most of Stricker’s testimony did not involve MRE 702 at all. Although Stricker offered 

opinions about the inadvisability of NMIR features, the safety of the tractor, and the cause of the 

accident, the bulk of his trial testimony focused on Deere’s design process. Stricker testified as a 

fact witness rather than an expert when he recounted that Deere was aware of blade-contact 

injuries to children based on its own review of incident reports and considered whether to 

implement NMIR technology on its riding mowers. He testified as a fact witness rather than an 

expert when he described the reasons that Deere decided against doing so, including that in 

Deere’s judgment NMIR features made the mower more difficult to operate, extended the 

mowing time, increased the likelihood of snowblower-related injuries, and would not eliminate 

all backover incidents. None of this testimony was subject to objection under MRE 702.

During Stricker’s extended discussion of how and why Deere decided against 

incorporating an NMIR feature in this mower, he laid the foundation for his expert opinions. 

Those opinions were not unreliable despite that they flowed primarily from engineering 

knowledge and experience rather than published literature. Unlike in Elher, evidence of industry 

practices supported that the “standard of care” did not necessitate NMIR features.

The plaintiff in Elher presented no evidence that Dr. Priebe’s standard-of-care opinion 

was shared by anyone else. Medical literature introduced by the defendant substantiated that it 

was not a breach of the standard of care to inadvertently clip the common bile duct during 

laparoscopic gallbladder surgery. The plaintiff failed to counter that literature with anything 

other than Priebe’s unsupported opinion, derived solely from his experience and training and 

buttressed by nothing more. 

Here, abundant evidence substantiated that the standard of care in the lawnmower 

manufacturing community did not require NMIR. Only one manufacturer, MTD, incorporated 

NMIR features in its riding mowers in 1994. This fact, standing alone, supports that Stricker’s 

views about NMIR technology were within the mainstream of engineering thought at the time. 

Furthermore, defendants pointed out that none of the industry standards in place in 1994 required 

manufacturers to include NMIR technology as a standard feature. The ANSI standard did not 

mandate the use of NMIR features, and the CPSC refused to order that riding mowers include an 

NMIR feature despite a request that it do so. These facts establish that Stricker’s views were 

generally accepted in the relevant technical community, and thereby reliable under MRE 702.

Although Stricker did not produce any peer-reviewed literature specifically stating that an 

NMIR feature was an unnecessary, unsafe, or otherwise inappropriate option, application of 

several of the factors listed in MCL 600.2955(1) also support the reliability of his views. 

Subsection (c) references “[t]he 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.” As discussed above, the standard 

discussed at trial, ANSI B71.1, did not require an NMIR feature at the time the mower was 

manufactured. Stricker’s testimony was consistent with that standard. Subsection (f) addresses 

“[w]hether 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.” That the overwhelming majority of 

manufacturers did not include NMIR features in 1994 demonstrates that other experts in 
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lawnmower design considered it unnecessary or inappropriate for other reasons. And Stricker’s 

lengthy discourse regarding Deere’s internal design process satisfies subsection (g), which asks 

“[w]hether the opinion or methodology is relied upon by experts outside of the context of 

litigation.”

Stricker’s opinions that backover injuries are rare and best addressed with warnings and 

design modifications that reduce the need for operators to shift into reverse also finds support 

outside of Stricker’s mere “say so.” Deere’s calculation of the number of backover injuries per 

mower use was unchallenged during the trial, substantiating that backover injuries are, in fact, 

relatively uncommon. His explanation of the process Deere used to identify hazards, including 

backover accidents, and to design ways to avoid them, furnished evidence of a methodology that 

was neither novel nor unique in any way. Indeed, Sevart and Stricker both testified extensively 

regarding the “safety hierarchy,” which Sevart considered part of “proper engineering 

methodology.” Sevart described that the first step in the hierarchy is to “eliminate the 

hazard, . . . that’s the best solution there is.” The next step in the design-tier “is to provide 

safeguards to prevent people from coming into contact with . . . that hazard.” If safeguards are 

impossible or impractical, Sevart continued, “then you go to the next step, which would be 

warnings and instructions.” He added that a designer never uses warnings and instructions “as a 

substitute for the safeguards.”

Stricker concurred with that approach, signaling that his methodology and Sevart’s were 

actually identical. They differed in how the safety hierarchy could and should have been applied 

in the design of this mower. In Stricker’s view, modifications other than NMIR technology 

sufficed to reduce the risk of backover injuries. Sevart insisted that an NMIR feature should 

have been required. This divergence of opinion does not mean that one expert was reliable and 

the other was not. To the contrary, the evidence supports that both views rested on an accepted 

and reliable engineering methodology, and were admissible. Accordingly, plaintiff’s argument 

that Stricker’s testimony should have been excluded lacks merit.

III. FACT ADMISSION BY DEERE’S COUNSEL

Plaintiff next claims that the trial court erred by excluding evidence that Deere’s counsel 

admitted at a pretrial hearing that Deere knew about the risk of backover accidents when it 

manufactured the riding mower in question. In the trial court, plaintiff asserted that this 

statement was admissible as a “judicial admission.” On appeal, plaintiff additionally describes 

the statement as an evidentiary admission governed by MRE 801(d)(2). We review plaintiff’s 

preserved challenge for an abuse of discretion and unpreserved claim for plain error. Elher, 499 

Mich at 21; Hilgendorf v St. John Hosp & Med Ctr Corp, 245 Mich App 670 700; 630 NW2d 

356 (2001). Here, counsel’s statement was not a judicial admission and even if it was admissible 

on some other basis, the trial court’s decision to exclude it was harmless.

The statement in question was made during a motion hearing concerning the admission of 

certain documents produced by retired Deere engineer Steve Eklund at his deposition. As noted, 

Eklund collected accident and incident reports involving Deere riding mowers as part of a 

feasibility study designed to investigate approaches to prevent backover injuries. Plaintiff filed a 

motion seeking to admit the accident and incident reports, arguing that they were not hearsay 
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because they would be introduced to prove the “effect on the listener” rather than their truth. 

Alternatively, the documents were admissible as ancient records, plaintiff claimed.

Defense counsel objected to the documents’ admission, arguing that Eklund had merely 

collected and kept whatever came to him. Some of the documents were incomplete, others had 

been altered, and many merely excerpted longer documents no longer in existence. The 

collection lacked any indicia of reliability, counsel claimed. During the argument counsel also 

contended that plaintiff had no need to introduce the actual documents as “there is no question 

that Deere knew that there were other incidents” and “Deere has already conceded that it knew 

that other incidents were happening; and it already conceded that it knew this type of accident 

would happen, which is exactly why [an engineering study] was initiated.” The trial court 

granted the motion to admit the documents but also permitted Deere to draft an instruction 

“address[ing] the fact that [they were] not being offered for the truth of the matter asserted.”

During the trial, plaintiff attempted to introduce counsel’s admission regarding Deere’s 

notice, contending that counsel’s statement constituted a binding judicial admission. The trial 

court denied plaintiff’s request.

Two strands of caselaw describe judicial admissions. The first describes statements made 

by counsel during a trial, defining a judicial admission as “a statement made by a party or his 

counsel, in the course of trial, [which] is considered a binding judicial admission if it is a distinct, 

formal, solemn admission made for the express purpose of, inter alia, dispensing with the formal 

proof of some fact at trial.” Ortega v Lenderink, 382 Mich 218, 222-223; 169 NW2d 470 

(1969). This form of judicial admission is “beyond challenge,” and must be narrowly interpreted 

by courts. Hilgendorf, 245 Mich App at 690. Counsel’s statement that Deere knew that 

backover incidents had occurred does not meet the criteria for a binding judicial admission under 

this standard. It was not made at trial, and it was not made for the purpose of dispensing with 

formal proof of a fact at the trial. Rather, the statement was made during a motion hearing for 

the purpose of convincing the court that certain documents were inadmissible.

The other form of judicial admission arises under MCR 2.312, which addresses requests 

for admission, and is inapplicable here. “Admissions under MCR 2.312 are ‘judicial’ 

admissions. 2 McCormick, Evidence (4th ed), § 254, p 142 n 11.” Radtke v Miller, Canfield, 

Paddock & Stone, 453 Mich 413, 420; 551 NW2d 698 (1996). Under either legal rubric, defense 

counsel’s statement was not a judicial admission.

Alternatively, plaintiff contends that counsel’s statement qualifies as an “evidentiary 

admission.” Evidentiary admissions arise under MRE 801(d)(2), and are otherwise known as 

admissions by a party opponent. They are admissible as proof of disputed issues, but are not 

binding on the finder of fact.

Assuming that counsel’s statement was an evidentiary admission, the trial court’s failure 

to admit it as such was not plain error, and alternatively was harmless. “Plain error occurs at the 

trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, 

meaning it affected the outcome of the lower court proceedings.” Duray Dev, LLC v Perrin, 288 

Mich App 143, 150; 792 NW2d 749 (2010). Plaintiff was not prejudiced by the failure to admit 

counsel’s statement because abundant evidence demonstrated precisely the same point—that 
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Deere knew of injuries to children caused by operation of the riding mower in reverse. Stricker 

testified in great detail regarding Deere’s awareness of backover injuries, that children were the 

frequent victims, and that backover injuries involving children were foreseeable. Thus, Deere 

repeatedly acknowledged through Stricker, its expert witness and spokesperson, that Deere had 

notice of backover injuries and their potentially severe consequences.

IV. JURY INSTRUCTIONS

Finally, plaintiff challenges the trial court’s rejection of her request to read M Civ JI 

10.07 to the jury. We review such instructional challenges de novo, examining the instructions 

as a whole to determine whether the issues were “adequately and fairly presented to the jury.” 

Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).

Here, the court instructed the jury consistent with the applicable product liability 

statute—MCL 600.2946(2)—and product liability jury instruction—M Civ JI 25.31:

The Plaintiff, Isabella Case, has alleged that Defendant, John Deere was 

negligent in producing the lawn tractor. John Deere has a duty to use reasonable 

care at the time of producing the lawn tractor so as to eliminate unreasonable risk 

of harm or injury that were reasonably foreseeable. Reasonable care means that 

degree of care that a reasonably prudent manufacturer would exercise under the 

circumstances that you find existed in this case. It is for you to decide, based on 

the evidence, what a reasonably prudent manufacturer would do or would not do 

under these circumstances. A failure to fulfill the duty to use reasonable care is 

negligence. However, John Deere had no duty to produce the lawn tractor to 

eliminate reasonable risk of harm or injury or risks that were not reasonably 

foreseeable.

However, plaintiff wanted the court to additionally instruct the jury:

The law recognizes that children act upon childish instincts and impulses. 

If you find the defendant knew or should have known that a child or children were 

or were likely to be in the vicinity, then the defendant is required to exercise 

greater vigilance and this is a circumstance to be considered by you in 

determining whether reasonable care was used by the defendant. [M Civ JI 

10.07.]

Plaintiff has cited no caselaw supporting that the manufacturer of a product must 

“exercise greater vigilance” in its design process when the manufacturer knows that the product 

will be used around children. Additionally, the risk-utility analysis required under Michigan law 

incorporates precisely the same concept. Most of the trial was devoted to an exploration of the 

risks of backover injuries to children posed by riding mowers lacking NMIR technology. The 

vast majority of the victims of backover accidents are children, as would be logically expected. 

Plaintiff’s defective design claim focused virtually exclusively on precisely the same ideas set 

forth in M Civ JI 10.07. Plaintiff’s theory that the standard of care required Deere to design a 

mower with features that would protect children when the operator moved in reverse was 
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adequately and fairly presented to the jury, and the standard instruction (M Civ JI 25.31) fully 

captured the essence of plaintiff’s claims.

We affirm.

/s/ Michael J. Kelly 

/s/ Jane E. Markey 

/s/ Elizabeth L. Gleicher