By Thomas Franz
BridgeTower Media Newswires
DETROIT-A Michigan Court of Appeals panel affirmed a Genesee County Circuit Court jury trial verdict in favor of Deere & Company following a riding lawnmower accident that injured a child.
In Janowski, as next friend of Case v. Deere & Company, the COA affirmed a trial court ruling that the testimony of the defendant's expert witness could be allowed without him supporting his opinions at trial with peer-reviewed literature.
"Their sole basis for saying he was unreliable was that he did not produce materials or documents to support some of his opinions at his deposition," said defense attorney Nancy Shane Rappaport of DLA Piper in Philadelphia. Jeffrey D. Smith of Honigman LLP in Kalamazoo was co-counsel for the defendant.
Judges Michael J. Kelly, Jane E. Markey and Elizabeth L. Gleicher unanimously affirmed the decision.
Background
On July 5, 2014, Starr Callahan was using a John Deere riding lawn mower to cut her grass.
Callahan is not related to the minor plaintiff Isabella Case or Nicole Janowski, Case's mother. However, Janowski and Case were living with Callahan at this time.
Callahan put the mower into reverse and collided with the 4-year-old Case.
The mower's blades kept moving as it reversed. The blades struck the child and caused one of her heels to be partially amputated.
Deere manufactured the mower in question on June 15, 1994. Janowski purchased the mower from a neighbor so that Callahan could use it. All safety systems on the mower were still in order and there were no claims of malfunction.
Legal argument
Janowski filed suit and complained the mower was defectively designed and unreasonably dangerous because it wasn't equipped with "no-mow-in-reverse" (NMIR) technology.
The COA panel wrote that NMIR technology was available when the mower was manufactured in 1994.
The NMIR system works in one of three ways by either forcing the operator to shut off the blades before shifting into reverse, automatically disengaging the blades when put in reverse, or preventing the operator from shifting into reverse if the blades are engaged.
The parties presented competing witnesses to discuss whether NMIR technology should've been used by Deere in its mowers in 1994.
Deere's sole expert witness, David Stricker, was the manager of Deere's product development division and managed the group that designed the mower deck for the mower involved in this case.
Stricker said Deere declined to use the NMIR technology because it caused the engine to cut frequently and interfered with the use of snow blower attachments.
Stricker also noted that NMIR technology allowed blades to continue to move for up to 12 feet while the mower reversed, which the court wrote 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," the court wrote.
The COA wrote that the tractor had several safety features, 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.
Stricker also asserted that the mower included design features intended to reduce the need for reverse travel by having 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, the court noted.
Prior to trial, the COA noted that the plaintiff attempted to exclude Stricker's testimony by arguing that Stricker did not produce any literature or other information to support his expert opinions.
Deere explained this by stating that those materials were already produced during discovery. Included in those materials were 900 pages 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," the court wrote. "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 the plaintiff's motion to exclude Stricker as the case went to a nine-day trial.
The plaintiff appealed the trial court's decision to permit Stricker's testimony to be allowed without supporting his opinion with peer-reviewed literature.
Analysis
The COA wrote in its analysis regarding the admission of Stricker's testimony that although he offered opinions about the NMIR features and the safety of the tractor, the bulk of his testimony was on Deere's design process.
That made Stricker a fact witness rather than an expert when he recounted that Deere was aware of blade injuries. The COA also determined Stricker was a fact witness when he spoke about the reasons that Deere used for not implementing NMIR technology.
"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," the court wrote. "Those opinions were not unreliable despite that they flowed primarily from engineering knowledge and experience rather than published literature."
The COA also wrote that only one lawn mower manufacturer, MTD, used NMIR technology in 1994, and that fact supported Stricker's opinions as being mainstream thought at that time.
Attorneys' comments
Rappaport said her side asserted that nobody was more qualified than Stricker to testify about the mower in question.
"Stricker not only had the design and engineering experience, but he also was experienced in investigating these types of accidents on behalf of the company and making sure their products were as safe as they could possibly be," Rappaport said.
Rappaport said she contested the plaintiff's arguments on the reliability of Stricker's opinions by stating that during deposition, Stricker had already produced all of the materials that resulted from his inception and testing of the tractor.
"That was odd to me. The company had already produced 900 pages of a study that addressed these very types of accidents and how it was going to change or whether it could change the design of the tractor to make it even safer in light of these types of accidents," Rappaport said.
Plaintiff's attorney Mark R. Bendure of Bendure & Thomas in Bloomfield Hills said the ruling by the COA wasn't a complete surprise.
"Obviously we're disappointed to lose. You're probably a 4-to-1 underdog statistically when you're going as the appellant," Bendure said. "The opinion is pretty self-explanatory. It was very well tried on both sides. There weren't a lot of controversial rulings, so it's hard to point to anything in particular in terms of a turning point."
Published: Mon, Sep 23, 2019
