Governmental immunity; Motor-vehicle exception; MCL 691.1405; Expert admissibility; MRE 702; MCL 600.2955; Craig ex rel Craig v Oakwood Hosp; Gatekeeping; People v Warner; Harmless error; Substantial justice; MCR 2.613(A); Barnett v Hidalgo; UD-10 police crash report inadmissibility; MCL 257.624(1); Timely objection; Rebuttal evidence; Relevance; MRE 401; People v Crawford

The court held that the trial court abused its discretion by admitting unreliable expert testimony and not fulfilling its gatekeeping obligations under MRE 702 and MCL 600.2955. Further, the error was outcome-determinative given the verdict form and closing argument reliance, requiring a new trial and vacatur of case-evaluation sanctions. Plaintiff alleged defendant-City’s employee negligently operated a City van under the motor-vehicle exception to governmental immunity after a tire flew off and struck plaintiff. Plaintiff’s expert opined the driver “would likely have experienced significant wobbling” and would “audibly hear it and/or feel it or both.” The trial court refused a Daubert hearing and admitted the opinion as a “fair” match-up against the City’s expert, but on cross-examination the expert conceded he “didn’t measure anything,” did no testing, and that “the only appropriate testing” would have been “to take the van out and test” it, which “I didn’t do.” On appeal, the court stressed that once reliability is challenged a “‘court must evaluate expert testimony under MRE 702,’” that the gatekeeper must conduct “‘a searching inquiry,’” and that it is “‘generally not sufficient to simply point to an expert’s experience and background’” to establish reliability. It concluded the trial court “failed in its role as gatekeeper,” and the opinion that the driver would have perceived warning signs was not “based on sufficient facts or data” and not “the product of reliable principles and methods.” The court also held that the error was not harmless because plaintiff’s counsel repeatedly told the jury it could find negligence if it credited the expert’s “whole opinion,” the testimony went to the heart of the City’s notice defense, and the verdict form asked only whether a City employee was negligent in operating the vehicle, leaving “no way of knowing” which theory the jury credited. It further held that the trial court committed additional prejudicial errors by permitting use of a UD-10 report in opening despite MCL 257.624(1) (“shall not be available for use”), and by excluding surveillance video and the investigator’s testimony after the trial court’s late rulings that plaintiff would not testify but his deposition would be read. The video was relevant to damages and the City’s timing was driven by the late rulings. Vacated and remanded for a new trial.