Mulholland v. DEC International Corp.

Griffin, J.

(dissenting). The majority concludes that the trial court erred in ruling that witness Sidney Beale was not qualified to give an expert opinion as to the cause of mastitis in plaintiffs’ cows. I respectfully dissent.

The decision to qualify a witness as an expert is a matter for the discretion of the trial court, and its decision is not to be reversed absent abuse of discretion. Siirila v Barrios, 398 Mich 576, 591; 248 NW2d 171 (1976); McEwen v Bigelow, 40 Mich 215, 217 (1879).

In this case, Beale, a milking-management consultant, was called by plaintiffs as a witness and asked questions concerning his extensive experi*418ence with milking machines. Beale’s expertise relating to the design and functioning of milking machines was well documented and is not disputed. However, upon voir dire Beale conceded that he was not an expert on the medical causes of mastitis.1 Further, he admitted that he had received very limited formal education relating to mastitis, and that he had little practical experience or specialized training per se in connection with that disease.2 He also admitted that he was not an expert on cows’ teat-end lesions.3

There was no challenge to the claim by Beale that he was an expert in the design of milking machine systems. However, after reviewing the *419limits of Beale’s education and experience and focusing upon the fact he was not a licensed veterinarian, the judge ruled that Beale "has not had the academic or the testing procedures that the Court feels are necessary for a person to hold himself out as an expert who can determine the cause of a medical condition in an animal.”

Particularly in light of Beale’s admissions, I cannot agree with the majority that the trial court abused its discretion. On these facts, we are not required to reach the question whether one must be a veterinarian to give expert testimony concerning the diagnoses and causes of animal diseases. However, under these circumstances, certainly it was not inappropriate for the trial judge to consider that Beale lacked the credentials of a licensed veterinarian. As the judge explained, the state has established minimum standards of qualification to practice certain of the professions. Surely, a judge is not to be faulted for taking those standards into account.

A dental assistant with twenty years of experience in a dentist’s oflice might well absorb an extraordinary practical education in the field of dentistry. It is possible that one judge would find the assistant competent to testify as an expert in that field. However, it is also possible that a different judge could reach the contrary conclusion, and in so doing he might ascribe weight to the facts that the assistant lacked the formal education of a dentist and was not licensed to practice that profession. I would be hard pressed to say that either judge abused his discretion.

In the past we have frequently cautioned appellate courts against a substitution of judgment as to matters that clearly fall within the discretion of the trial court. For example, in the early case of *420Scripps v Reilly, 35 Mich 372, 387 (1877), this Court stated:

It can never be intended that a trial judge has purposely gone astray in dealing with matters within the category of discretionary proceedings, and unless it turns out that he has not merely misstepped, but has departed widely and injuriously, an appellate court will not re-examine. It will not do it when there is no better reason than its own opinion that the course actually taken was not as wise or sensible or orderly as another would have been. [Emphasis supplied.]

In Detroit Tug & Wrecking Co v Gartner, 75 Mich 360, 361; 42 NW 968 (1889), the Court said:

To warrant this Court in interfering in matters so entirely in the sound discretion of the circuit court as the granting or refusing of a new trial, the abuse of discretion ought to be so plain that, upon consideration of the facts upon which the court acted, an unprejudiced person can say that there was no justiñcation or excuse for the ruling made. [Emphasis supplied. See also Brookdale Cemetery Ass’n v Lewis, 342 Mich 14; 69 NW2d 176 (1955), and Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959).]

Our insistence upon deference to the trial judge in such matters is not inconsistent with the rule in other jurisdictions. For example, the United States Supreme Court has recognized that a reviewing court may not find abuse of discretion in a trial court’s ruling on the qualifications of an expert just because it would have ruled differently had it sat as the trial court. In Chateaugay Ore & Iron Co v Blake, 144 US 476, 484; 12 S Ct 731; 36 L Ed 510 (1892), the Court stated:

How much knowledge a witness must possess *421before a party is entitled to his opinion as an expert is a matter which, in the nature of things, must be left largely to the discretion of the trial court, and its ruling thereon will not be disturbed unless clearly erroneous.

After reviewing the qualifications of the witness, the Supreme Court affirmed and commented: "We think the ruling of the trial court in excluding his opinion was right; at any rate, it cannot be adjudged clearly erroneous.” Id. See also Turner v American Security & Trust Co, 213 US 257, 261; 29 S Ct 420; 53 L Ed 788 (1909); Wojciuk v US Rubber Co, 19 Wis 2d 224, 230; 120 NW2d 47 (1963) (" 'The questions in that regard, however, relate to mere competency, and, therefore, the trial judge’s determination thereof, within all reasonable limits is supreme’” [emphasis supplied]); Henningsen v Bloomfield Motors, Inc, 32 NJ 358, 411; 161 A2d 69 (1960) ("In our view, the experience of the witness, as an automobile repairman and as an appraiser of damaged cars, was such as to preclude a holding by us that the trial court accepted his qualifications without any reasonable basis” [emphasis supplied]); Ricard v Prudential Ins Co of America, 87 NH 31, 33; 173 A 375 (1934) ("The only question before us is whether there is any evidence upon which the decision of that court could reasonably be made” [emphasis supplied]); and Webb v Olin Mathieson Chemical Corp, 9 Utah 2d 275; 342 P2d 1094 (1959).

Such cases are illustrative of the general rule as set forth by a leading author on evidence:

As with the question of whether expert opinion upon the subject matter should be permitted, the qualification of the expert is a question which lies within the sound discretion of the trial judge whose ruling will not be overturned in the absence *422of clear abuse, a standard which will rarely be met. [3 Weinstein, Evidence, Opinions and Expert Testimony, § 702(04), pp 702-45 to 702-47. See also 5 Am Jur 2d, Appeal and Error, §843, p 287; 31 Am Jur 2d, Expert and Opinion Evidence, § 31, pp 530-533.]

In this instance the trial judge’s ruling was sound, particularly in light of undisputed record evidence that the mastitis in plaintiffs’ herd may have been related to one or more of a number of causes.4 Plaintiff Robert Mulholland admitted that cows in the herd had mastitis problems before the *423dec milking system was installed,5 and his records showed that as late as seven months after the system was modified by Beale, eighteen cows were being treated for mastitis, eleven of which had not been treated before. Dr. George Stuewer, a veterinarian, testified that nationwide, forty percent of all cows have two or more quarters which are infected with mastitis.

Plaintiff Robert Mulholland acknowledged that unsanitary conditions or unsuitable bedding may be a contributing cause of mastitis, and there was evidence at trial that these conditions existed on plaintiffs’ farm. Mr. Robert Mulholland testified that in 1979 and 1980 the Department of Agriculture inspected the farm and instructed him to clean the barn walls and to change the inflations (rubber lining) of the claws of their milking machines. Despite those instructions, he admitted that after four and one-half years he had not completely cleaned out the cows’ stalls.

Mr. Robert Mulholland also testified that he put lime bedding in the stalls in September, 1980.6 *424Thereafter, on December 17, 1980, Dr. Mellenberger of the Michigan State University Extension Service advised the Mulhollands to remove the lime, an irritating substance, from the cows’ bedding. Notwithstanding that advice, the lime was not removed. According to Mr. Robert Mulholland, "We didn’t clean it out. We just kept adding sawdust to it.”

In addition, the record suggests the possibility that cows purchased by plaintiffs to expand their herd were already infected. Robert and Richard Mulholland testified that they bought at least eighty-nine cows between November, 1979, and March, 1981, and that none of that number was tested for mastitis.

Dr. Stuewer, a licensed veterinarian, testified that sometimes it is impossible to detect the precise cause of mastitis,7 and that he was "not going to attempt as an expert witness to tell anybody that the milking equipment was definitely involved” in the cows’ mastitis problem. In response to a question, Beale conceded that it would be necessary to eliminate all the other potential causes before it would be possible to settle on one cause of mastitis in a particular cow.8

*425If the "abuse of discretion” standard is to have meaning, there must be room for some difference in judgment. Williams v Hofley Mfg Co, 430 Mich 603, 619; 424 NW2d 278 (1988). In this case, the question presented admittedly is a close call. Precisely because that is so, the trial judge’s decision is entitled to deference. We cannot say there was abuse of discretion because we might have ruled differently had we been sitting as the trial court.

I would affirm the decision of the Court of Appeals.

Riley, C.J., and Brickley, J., concurred with Griffin, J.

Beale testified as follows:

Q. Isn’t it true that you are not an expert in the medical causes of mastitis? You’ve admitted that under oath before?
A. I don’t follow what you mean by medical causes of mastitis.
Q. You were asked under oath, "Are you an expert in the medical causation of mastitis?” I believe that’s a quote, and you admitted you weren’t, isn’t that true?
A. That would be true because there isn’t any medical causes I know of.

Upon direct examination, Beale testified:

Q. When did you have any formal training on mastitis?
A. I had just the basic that you get in college, Dairy Bacteriology, and I’ve had opportunity to work on some problems, but that wouldn’t be the formal education.
Q. Did you have any practical experience or specialized training in mastitis?
A. Not per se. I took one—as I recall I took a problems course when I was in college, which would be more or less just an overview of a problem.

Upon voir dire by counsel for dec, Beale testified:

Q. Well, you’re not only not a veterinarian, but you’re not a teat end lesion expert, either?
A. I’m not an expert in that area, but I can recognize when a teat end is not normal and healthy.

Plaintiff Robert Mulholland testified upon direct examination:

Q. Did you have any—is mastitis a common ailment or common problem in cow herds?
A. Oh, farmer’s always got a few. He shouldn’t have very many, but he’s always going to have a few.
Q. And do you know some of the causes of the mastitis?
A. Yes, there’s injury is the biggest cause, but it can be a lot of things will cause it, but injury’s your biggest problem.

George Stuewer, the veterinarian, testified upon direct examination:

Q. Have you made a study or have you familiarized yourself with mastitis?
A. Over the years, certainly.
Q. And can you tell different—what causes it?
A. Many things.

Finally, Beale testified upon voir dire examination by counsel for dec:

Q. Mr. Beale, there has been testimony from a veterinarian that has already testified in this case that mastitis may be caused by many different things that a cow’s teats may come into contact with. You would at least accept that, wouldn’t you?
A. Yes.
Q. You can get from [sic] the environment, by dragging its teats through the mud?
A. Yes.
Q. It can get it if it happens to be lying in its own manure?
A. Yes.
Q. Will cows do that if the manure isn’t taken out regularly?
A. Yes.
*423Q. It can get bacteria into its teats from the bedding if the bedding turns out to be unsuitable material?
A. This is—these are all true, providing the . . .

Robert Mulholland testified upon cross-examination by counsel for Crawford:

Q. Now, I understand your testimony to be that immediately before you moved into the new system in [sic] March 19th, 1980, you had no cases of mastitis, true?
A. We didn’t have any the day we move [sic] in, right,
Q. Well, what about a couple days before?
A. I couldn’t tell you about a couple days. There was [sic] times we had one or two cases of mastitis all the way, all our life, but I couldn’t tell you the exact dates by now.

According to Robert Mulholland, an "epidemic of mastitis” struck in October or November, 1980. This was one to two months after lime was placed in the cows’ stalls.

Dr. Stuewer testified upon cross-examination by counsel for Crawford:

Q. And am I also correct that by knowing what type of bacteria is causing the mastitis sometimes that gives you a clue as to how the mastitis was caused, isn’t that true?
A. Well, it will give you the—give you a clue as to what organism is involved. It might—there might be some other factor that triggers the mastitis, of course, that you don’t find out, and sometimes there’s probably nothing that you can put your finger on that did trigger it.

Beale’s concession came during voir dire by counsel for defendant dec:

Q. If we’re going to try to determine what the—of all these *425potential causes, is the cause of mastitis in one particular cow, then we’re really going to have to find a way that we can eliminate all the other potential causes and settle on the one cause that we say did cause the mastitis to occur in that’s [sic] cow’s teat, correct?
A. Yes.