Third-party no-fault action; Affirmative defense based on the plaintiff’s intoxication pursuant to MCL 600.2955a; Admission of a toxicologist’s testimony; Woodard v. Custer; MRE 702; Surman v. Surman; MRE 703; Badiee v. Brighton Area Sch.; Challenges going to the weight rather than the admissibility of testimony; Lenawee Cnty. v. Wagley; The jury’s finding that plaintiff’s intoxication was a “proximate cause” of the accident; Distinguishing Piccalo v. Nix (On Remand) & Mallison v. Scribner; Attempt to “appeal from an error to which the aggrieved party contributed by plan or negligence”; Smith v. Musgrove; Comparative negligence; Placek v. Sterling Heights; Claim the jury was inconsistent in its award of past but not future economic damages; Kelly v. Builders Square; Denial of motion for a new trial on the basis the verdict was against the great weight of the evidence; Hill v. Henderson; Blood-alcohol level (BAL); Underinsured motorist (UIM) benefits

[Unpublished opinion.] Concluding that the toxicologist’s (M) opinion was based on facts in evidence and his expert qualifications, the court found “no abuse of discretion in the trial court’s admission of this evidence.” It also found that cases on which the plaintiff relied, Piccalo and Mallison, did not support her claim that the jury’s verdict was inconsistent, and concluded that the trial court did not err in denying her motion for a new trial. Plaintiff appealed the trial court’s judgment, following a jury trial, awarding her $70,192.80 in damages. “The judgment reduced the jury award of $116,988 by 40% in light of the jury’s finding, via special verdict form, that plaintiff’s comparative negligence amounted to 40% of the cause of the accident.” The case arose from a single vehicle accident. Plaintiff (the passenger) sued defendant-Curtis (the driver) for third-party no-fault benefits and asserted claims for UIM benefits against her own no-fault insurer. Defendants raised an affirmative defense based on plaintiff’s intoxication pursuant to MCL 600.2955a. She argued on appeal that M (the insurer’s expert) lacked an evidentiary foundation of the intoxication of plaintiff or Curtis, and thus should not have been permitted to opine as to their intoxication at the time she asked Curtis for a ride home. However, their BAL tests after the accident were admitted into evidence. The record showed that M “based his opinion on that evidence and his experience as a toxicologist.” Plaintiff was allowed to explore the assumptions M made in reaching his conclusions and elicited testimony that he “lacked direct evidence of plaintiff’s or Curtis’s alcohol consumption or visible intoxication on the night in question.” M agreed “at his deposition that he could not state with certainty that Curtis appeared intoxicated at the time plaintiff asked him for a ride, or that plaintiff was ‘legally intoxicated’ when she made her decision to accept that ride.” He did “not opine differently at trial; rather, given certain assumptions such as weight and gender, he gave his expert opinion” as to the lowest BAL they “could have had when they left the bar.” Plaintiff’s challenges to that testimony went to “its weight, not its admissibility.” Affirmed.