Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 22, 2004
LINDA M. GILBERT,
Plaintiff-Appellee,
v No. 122457
DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
In this appeal, defendant seeks reversal or remittitur
of the largest recorded compensatory award for a single-
plaintiff sexual harassment suit in the history of the
United States. The $21 million verdict awarded, according
to plaintiff, barely compensates her for the lasting
effects of the sexual harassment she endured as an employee
of defendant, DaimlerChrysler, by whom she is still
employed and earning almost $100,000 a year. She contended
during her trial that defendant’s failure to deal
adequately with sexual harassment in her plant led to a
1
permanent change in her “brain chemistry” and a relapse
into substance abuse and depression, and that these
conditions will soon lead to her untimely and excruciating
death.
The foundation for this theory of recovery was laid by
the expert opinion testimony of a social worker who had a
longstanding relationship with plaintiff’s counsel. This
witness not only lacked any training, education, or
experience in medicine, but also testified falsely about
his credentials. Nevertheless, plaintiff asked the jury to
treat this witness’s testimony as a “prognosis,” and to
compensate plaintiff for the loss of her health and,
eventually, her life. Plaintiff’s counsel evoked images of
physical abuse and torture, compared his client to
survivors of the Holocaust, and argued that defendant
DaimlerChrysler thought of itself as “God Almighty,” exempt
from the legal norms that govern others. Thus, in
defendant’s view, the verdict was the product of
inflammatory rhetoric, unscientific “expert” testimony,
fraud on the court, and attorney misconduct.
We granted leave to appeal in order to determine
whether the verdict was a legitimate estimate of
plaintiff’s losses, as plaintiff contends, or whether it
was, as defendant argues, an unjust, excessive award
2
procured through systematic misconduct by plaintiff’s trial
counsel and supported by dubious evidence. The majority
and the dissent agree on one fundamental fact: the verdict
rendered in this case is excessive and cannot be affirmed.1
A careful review of the record reveals that
plaintiff’s trial counsel engaged in a sustained and
deliberate effort to divert the jury’s attention from the
facts and the law. In their stead, counsel interposed
1
We differ not, as the dissent suggests, because we
believe that the plaintiff has failed to make out a case of
sexual harassment worthy of a verdict. We differ instead
because we believe that this verdict is excessive and
because we have concluded that the record supporting this
verdict is the result of plaintiff counsel's repeated
invitation to the jury to exercise its collective
prejudices in preference to fairly compensating plaintiff
on the evidence presented. For all of the reasons detailed
in this majority opinion, we conclude that the repeated,
explicit and inappropriate references to the Holocaust,
defendant's German national origin, and defendant's status
as a corporation cannot be tolerated in Michigan courts any
more than in our society at large.
The people have declared in our Constitution that
"equal protection of the laws" shall not be denied on the
basis of national origin. Const 1963, art 1, § 2. See
also, the Michigan Civil Rights Act, MCL 37.2101 et seq.
The observance of this fundamental principle cannot stop at
the door of the courthouse. Indeed, it is within the
courthouse that we ought be most concerned that the merits
of a party's cause, not its alienage or status, should
remain the exclusive focus of a jury's deliberations.
Thus, while we hold no brief for the inadequacies of
defendant's counsel that the dissent has taken pains to
note, defendant was entitled to a trial free of naked
appeals to entice the jury to consider its passions and
prejudice rather than the evidence.
3
misleading argument, prejudice-baiting rhetoric, and pleas
for punitive damages. This rhetoric had its intended
result: the jury’s verdict unmistakably reflects passion
rather than reason and prejudice rather than impartiality.
We conclude that the trial court lacked any
justification for denying defendant’s postverdict motion
for a new trial under MCR 2.611. Thus, the trial court
abused its discretion in denying defendant’s motion for a
new trial. We reverse, and we remand to the trial court
for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
It is undisputed that plaintiff, Linda Gilbert, has
long waged a losing battle with substance abuse. Her
personal struggles were thoroughly documented in medical
records that plaintiff introduced at trial in order to
establish damages. According to those records, Ms. Gilbert
began drinking at fourteen and began using cocaine at
twenty years of age. Most of her adult life has since been
marked by excessive drinking. At one point during her
employment with defendant, she reported to her substance
abuse counselors that she was consuming a pint to one-fifth
gallon of alcohol a day. Her cocaine use also continued
during her employment with defendant, as documented by
4
records from St. John Hospital and Sacred Heart
Rehabilitation Center.
Ms. Gilbert sought professional assistance on a number
of occasions and has been treated on both an inpatient and
outpatient basis for substance abuse. On the basis of the
testimony at trial, however, it appears that none of these
treatments has been entirely successful. Indeed, the
foundation of plaintiff’s claim for $140 million in damages
was the assertion that plaintiff’s substance abuse would
continue until it resulted in her death.
Plaintiff’s work life contrasts markedly with her
personal difficulties. In the mid-eighties, plaintiff
began an apprenticeship to train for a career as a
millwright. By 1990, plaintiff had become a journeyman
millwright and was hired two years later by the Chrysler
Corporation.2 Plaintiff was the first female millwright to
work at Chrysler’s Jefferson North Assembly Plant in
Detroit. To our knowledge, plaintiff continues to work for
defendant and, according to her attorney, earns “nearly
$100,000 per year” with overtime pay.
2
Chrysler was a corporate predecessor of defendant
DaimlerChrysler. In 1998, Chrysler merged with Daimler
Benz AG to form DaimlerChrysler. DaimlerChrysler is the
named defendant in this action.
5
Plaintiff initiated the present sexual harassment
action against defendant on March 25, 1994, complaining
that a hostile work environment existed in defendant’s
Jefferson North plant. At that time, plaintiff had
reported two specific instances of harassment through
defendant’s formal discrimination reporting procedure. The
first incident took place on May 22, 1993, a little over a
year after plaintiff began working for defendant.
Plaintiff reported that she found a lewd cartoon taped to
her toolbox. It depicted a woman in a bar engaged in an
“arm-wrestling” match with a man’s penis. Plaintiff’s name
was written above the woman in the cartoon, and the name of
a coworker was written on the man whose penis was being
wrestled.3
After receiving plaintiff’s oral report of this
cartoon, plaintiff’s supervisor and area coordinator
apologized to plaintiff, stated that defendant “did not
condone such action” and that they would address the
problem by speaking with employees in the area and
distributing copies of defendant’s written policy against
3
When plaintiff described the cartoon in a written
report requested by defendant, she wrote that “[t]he woman
was bare-breasted and about to perform fellatio. I was
named as the woman. I was extremely insulted and degraded.
The insinuation that this happens between myself and a man
I work with everyday is humiliating.”
6
sexual harassment. Defendant’s internal memo notes that an
employee in Chrysler’s human resources department and
several other employees spoke with the workers in
plaintiff’s area and distributed the company’s sexual
harassment guidelines following plaintiff’s report.
The second reported incident took place on June 5, 1993,
when plaintiff found a Polaroid photograph of a penis on
her toolbox. She informed her supervisor about the
picture. Defendant’s internal memo concerning the
complaint indicates that its supervisory employees
apologized to plaintiff and reassured her that “[Chrysler
did] not approve of such action, and that [Chrysler was]
doing everything possible to prevent such harassment.”
On the basis of these two incidents, plaintiff
initiated a lawsuit against defendant alleging breach of
contract, violations of the Michigan Civil Rights Act, MCL
37.2101 et seq., and negligence in addressing plaintiff’s
concerns about sexual harassment in the workplace.4
After filing her lawsuit, plaintiff formally reported
to management several other incidents of harassment that
occurred while the suit was pending. Plaintiff reported
4
The breach of contract and negligence claims were
omitted from the pretrial order and were not presented to
the jury.
7
that, on October 10, 1994, she found a vulgar cartoon
entitled “Highway Signs You Should Know” taped to her
locker;5 she also reported that she had found an article by
“Dr. Ruth” taped to her locker one week earlier.6 In
response, Maya Baker, a human resources facilitator for
defendant, personally patrolled plaintiff’s work area on
occasion and also asked union leaders to share with union
members that the responsible party could be terminated.
Next, plaintiff reported that on March 12, 1995, she found
a lewd and misogynistic “poem” on a bulletin board in a
work area adjacent to hers.7 Defendant investigated these
latter two incidents and, being unable to determine the
responsible party, removed the bulletin board.
Finally, on September 2, 1997, plaintiff formally
reported that a coworker made references to his “big meat”
in front of her. In response to plaintiff’s complaint
5
The cartoon contains a number of lewd drawings, each
apparently meant sexually to illustrate “highway signs”
such as “Dead End” and “Men at Work.”
6
The article by columnist Dr. Ruth Westheimer was a
response to a man complaining that his penis was sore from
having sexual intercourse too frequently.
7
The “poem” is reproduced in the Court of Appeals’
opinion. Unpublished opinion per curiam, issued July 30,
2002 (Docket No. 227392), pp 6-7.
8
about her coworker’s apparent reference to his genitals,
defendant reprimanded the responsible employee.
These are the only sexual harassment incidents that
plaintiff made known to defendant through the formal
procedures established by defendant for such matters.
However, plaintiff contends that defendant had actual
notice of other incidents because of her description of
those incidents during her deposition testimony given after
the commencement of this suit and that defendant had
“constructive notice” of other incidents.8
Before trial, defendant moved to exclude “evidence
regarding incidents that were never reported.” After
hearing argument on this motion, the court denied
defendant’s request and admitted testimony and evidence on
these unreported incidents.
8
Plaintiff testified, for example, that on her first day
of work a coworker mentioned that he would like to hold a
ladder for plaintiff if she were wearing a dress; that a
coworker called her a “bitch” during a card game; that her
toolbox was “blocked” when coworkers intentionally placed
other equipment in front of it; that some coworkers ignored
her or made false claims in order to get her in trouble
with management; that a misogynistic cartoon was taped to
her toolbox with the word “bitch” written on the tape; that
a Penthouse article called “Why Men Have So Many Sperm” was
set on a table next to her beverage; and that a liquid—
which plaintiff now asserts was urine—was found on her
chair.
9
At trial, plaintiff offered the testimony of social
worker Carol Katz and of certified social worker and
substance abuse counselor Steven Hnat. Mr. Hnat had
counseled plaintiff regarding her substance abuse problems
before the initiation of her lawsuit against
DaimlerChrysler. He therefore testified as both a fact
witness and an expert witness. His testimony proved to be
the linchpin of plaintiff’s case.
Mr. Hnat opined that the harassment experienced by
plaintiff had caused irreversible changes in her brain
chemistry, causing her to relapse into alcoholism and to
develop “major depressive disorder.” He testified that he
had reviewed medical records prepared by other health
professionals and, in his opinion, those records read “like
a preview of [plaintiff’s] death certificate.” He further
opined that plaintiff’s body was beginning to
“decompensat[e],” and that she was “clearly dying.” Mr.
Hnat’s theory was that plaintiff would develop a fatal case
of pancreatitis, a disease that Mr. Hnat testified was “the
most painful way to die.” In the end, he told the jury
that plaintiff was likely to die relatively soon because of
“medical complications,” and that he “wouldn’t bet on her
living very long.”
10
Thus, plaintiff’s theory of the case, as introduced
through Mr. Hnat, was that the sexual harassment plaintiff
encountered at Chrysler caused a permanent change in her
brain chemistry that produced a relapse into alcohol abuse
and the onset of depression. These conditions, in turn,
would lead inexorably to plaintiff’s untimely and
excruciating death.
After a six-week trial and 1-1/2 days of deliberation,
the jury returned a verdict of $21 million in favor of
plaintiff. With prejudgment interest, a judgment for more
than $30 million was entered for plaintiff.
On October 29, 1999, defendant moved for judgment
notwithstanding the verdict (JNOV), a new trial, remittitur,
an evidentiary hearing, and relief from judgment. The
motion argued, among other things, that plaintiff’s counsel
and Mr. Hnat had perpetrated fraud on the court through
misrepresentations about Mr. Hnat’s relationship with
plaintiff’s counsel and about his academic credentials.
Mr. Hnat testified at trial that he received a master’s
degree in “psychobiology” from the University of Michigan,
and that, as an undergraduate, he won the prestigious
Pillsbury Prize in psychology. These claims were
duplicated on a version of Mr. Hnat’s resume that was
introduced as a trial exhibit. In fact, both statements
11
were shown after trial to be false. Nevertheless, the
trial court denied defendant’s motions on May 1, 2000. The
Court of Appeals affirmed the jury’s verdict in an
unpublished opinion.
On April 8, 2003, we granted defendant’s motion for
leave to appeal.9
On appeal to this Court, defendant asserts four major
claims of error. First, DaimlerChrysler argues that
plaintiff failed to state a claim of sexual harassment
under the Michigan Civil Rights Act (CRA) because she did
not show that defendant’s response to the six reported
incidents of sexual harassment was inadequate. Second,
defendant argues that it is entitled to a new trial because
of the persistent and blatant misconduct of plaintiff’s
trial counsel. Third, defendant maintains that the trial
court committed error requiring reversal by admitting the
opinion testimony of a social worker on medical issues and
that this error was exacerbated by plaintiff’s use of that
testimony to inflame the jury. Finally, DaimlerChrysler
argues that the $21 million verdict received by plaintiff
9
468 Mich 883 (2003). We also granted motions from the
Michigan Chamber of Commerce and the United States Chamber
of Commerce to file briefs amicus curiae, and solicited
additional briefs amicus curiae from interested parties.
12
is so excessive and so clearly punitive that it is entitled
to remittitur.
II. ANALYSIS
A. STANDARD OF REVIEW
A trial court’s decision to grant or deny a motion for
a new trial under MCR 2.611 is reviewed for an abuse of
discretion.10 The determination that a trial court abused
its discretion “involves far more than a difference in
judicial opinion.”11 Rather, a court abuses its discretion
“when ‘an unprejudiced person’ considering ‘the facts upon
which the trial court acted, [would] say that there was no
justification or excuse for the ruling made.’”12
B. DEFENDANT’S MOTION FOR A NEW TRIAL
Defendant moved for postjudgment relief on a number of
grounds. One of the grounds was that the verdict was the
product of prejudice and passion. According to defendant,
plaintiff’s counsel had repeatedly equated plaintiff’s
experiences to those of the victims of the Holocaust, and
10
Kelly v Builders Square, Inc, 465 Mich 29, 34; 632
NW2d 912 (2001).
11
Alken-Ziegler, Inc v Waterbury Headers Corp, 461
Mich 219, 227; 600 NW2d 638 (1999).
12
People v Hendrickson, 459 Mich 229, 235; 586 NW2d
906 (1998) (opinion by KELLY, J.), quoting Detroit Tug &
Wrecking Co v Wayne Circuit Judge, 75 Mich 360, 361; 42 NW
968 (1889).
13
thereby associated defendant’s new German co-owners with
the Nazis who perpetrated that horror. This argument,
according to defendant, was bolstered by the expert
testimony of a social worker who suggested to the jury that
sexual harassment had altered plaintiff’s “brain chemistry”
and would lead to her untimely and agonizing death.
Defendant argued that the excessiveness of the verdict—a
$21 million award—palpably reflected the passion and
prejudice that plaintiff sought to instill in the jury.
The trial court had the discretion to grant this
request for a new trial under MCR 2.611(A)(1), which
provides:
A new trial may be granted to all or some of
the parties, on all or some of the issues,
whenever their substantial rights are materially
affected, for any of the following reasons:
(a) Irregularity in the proceedings of the
court, jury, or prevailing party, or an order of
the court or abuse of discretion which denied the
moving party a fair trial.
(b) Misconduct of the jury or of the
prevailing party.
(c) Excessive or inadequate damages
appearing to have been influenced by passion or
prejudice.
(d) A verdict clearly or grossly inadequate
or excessive.
(e) A verdict or decision against the great
weight of the evidence or contrary to law.
14
(f) Material evidence, newly discovered,
which could not with reasonable diligence have
been discovered and produced at trial.
(g) Error of law occurring in the
proceedings, or mistake of fact by the court. . .
An objective review of the proceedings below leads to
the conclusion that the trial court abused its discretion
in failing to grant a new trial under MCR 2.611(A)(1)(c).
The jury verdict is so excessive and so clearly the product
of passion and prejudice that there can be no justification
for the trial court’s denial of defendant’s motion for a
new trial.
1. AN “EXCESSIVE” VERDICT
In order to grant relief under MCR 2.611(A)(1)(c), it is
first necessary to determine whether the verdict is
“excessive.” Because subsection c does not define this
term, it must be given its “plain and ordinary meaning[].”13
“Excessive” is defined as “going beyond the usual,
necessary, or proper limit or degree; characterized by
excess.”14 In the context of compensatory damages, the
determination whether damages exceed the “necessary or
proper limit” is no simple task. “[T]he authority to
13
Koontz v Ameritech Services, Inc, 466 Mich 304, 312;
645 NW2d 34 (2002).
14
Random House Webster’s Unabridged Dictionary (2001).
15
measure damages,” as we stated in Kelly v Builder’s Square,
“inheres in the jury's role as trier of fact.”15 Because
the amount required to compensate a party for pain and
suffering is imprecise, that calculation typically belongs
to the jury.16
The difficulty of reviewing damage awards, however,
does not undermine the judicial obligation to do so under
MCR 2.611. A reviewing court is therefore faced with the
task of ensuring that a verdict is not “excessive” without
concomitantly usurping the jury’s authority to determine
the amount necessary to compensate an injured party. Given
the impossibility of using a simple algorithm for this
task, judicial review of compensatory awards must rely on
the fundamental principle behind compensatory damages—that
of recompensing the injured party for losses proven in the
record.
This, in effect, is the rationale behind three of the
four factors that a majority of this Court endorsed in
Palenkas v Beaumont.17 The Palenkas majority stressed that
appellate review of jury verdicts must be based on
15
Id. at 34.
16
Id. at 35.
17
432 Mich 527, 533; 443 NW2d 354 (1989).
16
objective factors and firmly grounded in the record.18
Accordingly, judicial review of purportedly excessive jury
verdicts should focus on the following objective factors:
[1] whether the verdict was the result of
improper methods, prejudice, passion, partiality,
sympathy, corruption, or mistake of law or fact;
[2] whether the verdict was within the limits of
what reasonable minds would deem just
compensation for the injury sustained; [and 3]
whether the amount actually awarded is comparable
to awards in similar cases within the state and
in other jurisdictions.[19]
When a verdict is procured through improper methods of
advocacy, misleading argument, or other factors that
confound the jury’s quantification of a party’s injuries,
that amount is inherently unreliable and unlikely to be a
fair estimate of the injured party’s losses. Likewise,
when a verdict is unsupported by the record or entirely
inconsistent with verdicts rendered in similar cases, a
reviewing court may fairly conclude that the verdict
exceeds the amount required to compensate the injured
party.
When analyzing a verdict according to the Palenkas
factors, courts must be mindful of the fact that punitive
damages are available in Michigan only when expressly
18
Id. at 532-33.
19
Id.
17
authorized by the Legislature.20 Here, the Civil Rights Act
does not authorize punitive damages—and, moreover, permits
compensation only for “injury or loss caused by each
violation of this act, including reasonable attorney's
fees.”21 Thus, the court has a statutory obligation under
the CRA to ensure, through consideration of the objective
factors described by Palenkas, that this damage award
serves the ends articulated by the Legislature.22
We turn first to the question “whether the verdict was
the result of improper methods, prejudice, passion,
partiality, sympathy, corruption, or mistake of law or fact
20
Rafferty v Markovitz, 461 Mich 265, 270-271; 602
NW2d 367 (1999). Punitive damages are authorized, for
example, by MCL 750.147.
21
MCL 37.2801(3).
22
There is also an overarching constitutional issue to
consider. In State Farm Mut Automobile Ins Co v Campbell,
538 US 408, 416; 123 S Ct 1513;
155 L Ed 2d 585 (2003), the United States Supreme Court
concluded that “[t]he Due Process Clause of the [United
States Constitution’s] Fourteenth Amendment prohibits
imposition of grossly excessive or arbitrary punishments on
a tortfeasor.” While State Farm dealt with punitive damage
awards, the due process concerns articulated in State Farm
are arguably at play regardless of the label given to
damage awards. A grossly excessive award for pain and
suffering may violate the Due Process Clause even if it is
not labeled “punitive.” In this case, however, there is no
need to reach this constitutional question, given the
necessity of reversal on other grounds.
18
. . .”23 As shown in greater detail in Part II(B)(2), we
have concluded that this verdict was the product of
misleading argument, inflammatory rhetoric, and the
improper admission of expert opinion testimony utterly
lacking in scientific support.24 The first Palenkas factor
listed above therefore provides strong support for the
conclusion that this verdict is “excessive,” as that term
is used in MCR 2.611(A)(1)(c).
The second Palenkas factor addresses “whether the
verdict was within the limits of what reasonable minds
would deem just compensation for the injury sustained
. . .”25 This inquiry into the reasonableness of the
verdict concerns, in essence, whether the verdict is
supported by the record. Here, it is apparent that the
jury verdict is unsupported by the evidence in one sense.
23
Palenkas, supra at 532.
24
The excessiveness of the verdict alone provided a
sufficient basis for the trial court to grant a new trial
under MCR 2.611(A)(1)(d). But the true abuse of discretion
below was not just the trial court’s failure to recognize
that this verdict was excessive as measured by comparable
cases, but its failure to recognize that plaintiff’s
counsel had engaged in a deliberate attempt to inflame the
jury——that the verdict below was the product of an
intentional course of improper conduct. Therefore, this
opinion focuses on defendant’s motion for a new trial under
subsection c.
25
Palenkas, supra at 532.
19
The jury awarded plaintiff $1 million in trust for future
medical expenses and “loss of future earning capacity,”
despite the fact that plaintiff failed to demonstrate any
economic harm in the present, much less a “loss of future
earning capacity.” In fact, according to her counsel,
plaintiff continues to earn almost $100,000 a year with
overtime pay as an employee of defendant. Similarly, there
was no evidence regarding the nature of medical treatment
that plaintiff may have to undergo in the future or the
likely cost of that treatment. The jury’s estimation of
plaintiff’s future economic loss was without support in the
record.
The remainder of the verdict—$20 million—was intended
to compensate plaintiff for emotional distress, “physical
pain and suffering,” and the aggravation of her substance
abuse. There may be some cases in which it is possible to
determine objectively that a compensatory award is or is
not supported by the record. But this determination is
extremely problematic where damages for emotional distress
are at issue. In such cases, comparison with damage awards
in comparable cases in this jurisdiction and beyond—the
final Palenkas factor—becomes most relevant. While the
resultant analysis is certainly imperfect, other damage
awards may provide a range of what constitutes reasonable
20
compensation for the type of injury suffered by a
plaintiff. With this range in mind, the reviewing court
may determine whether the verdict appears to be “within the
limits of what reasonable minds would deem just
compensation for the injury sustained . . .”26
Turning finally to the third Palenkas factor, the $21
million verdict awarded in this case is far beyond the
range of what other juries have determined to be reasonable
compensation for injuries similar to—and much worse than—
those suffered by plaintiff. To our knowledge, plaintiff’s
$21 million verdict is the largest amount ever awarded for
a single-plaintiff sexual harassment claim in the United
States. It is seventy times larger than the maximum award
permitted under title VII, the federal civil rights act.27
Indeed, plaintiff has not cited a single compensatory
verdict in an employment discrimination action from any
court within the United States that arguably rivals the
amount awarded to plaintiff.
In responding to defendant’s argument that the $21
million verdict is “the largest single-plaintiff sexual
26
Id. at 532.
27
See 42 USC 1981a(b)(3)(D).
21
harassment award upheld on appeal anywhere in the entire
country,” plaintiff has argued to this Court:
Defendant’s “other sexual harassment” case
analysis is far from honest. Looking only at
automobile companies, and ignoring every other
case of sexual harassment in any other field of
employment in the Country, the largest recovery
is a $34,000,000 settlement by Mitsubishi in June
of 1998. . . . While Daimler Chrysler may believe
that sexual harassment of women is acceptable and
insignificant, other automobile manufacturers
recognize their responsibilities and the gravity
of injury by agreeing to high seven and eight
figure settlements to avoid the higher measure of
full redress available to a victim like Linda
Gilbert who recovers for all losses at trial.
Plaintiff’s attack on defendant’s “dishonesty” here omits a
crucial fact: Mitsubishi’s $34 million settlement was in a
class action.28 We are unaware, therefore, of any single-
plaintiff employment discrimination verdict involving a
nonpunitive award that even arguably approaches the amount
awarded to plaintiff, and plaintiff has identified none.
Plaintiff argues that this discrepancy between her
verdict and every other sexual harassment verdict in United
States simply reflects the jury’s recognition that
defendant’s conduct was much, much worse than that of any
other defendant in a sexual harassment case. While we have
28
See, e.g., Braun, Mitsubishi to Pay $34 Million in
Sex Harassment Case, Los Angeles Times (June 12, 1998), p
A1 (noting that the settlement was distributed among
“hundreds of female employees”).
22
no doubt that plaintiff encountered truly ugly conduct at
Chrysler given the evidence and testimony adduced at trial,
we cannot accept the argument that plaintiff’s was the
worst case of sexual harassment in the history of the
country that has resulted in a verdict.
A survey of verdicts rendered in other sexual
harassment suits reveals that plaintiffs who endure sexual
harassment in its most aggressive form—unwanted touching
and persistent, predatory sexual advances—uniformly have
received far less in compensatory damages than the amount
awarded to plaintiff. For example, in Griffin v City of
Opa-locka, a party who alleged that she was sexually
harassed during a four-month period and was raped by her
manager was awarded $2 million.29 And in Grow v W A Thomas
Co, the plaintiff alleged that she was subjected to
“sexually explicit comments and unwanted kissing and
groping” over several years and recovered $192,684.30
Indeed, the only plaintiffs who have recovered sexual
harassment verdicts that are even arguably comparable to
that rendered in this case are those who recovered punitive
29
261 F3d 1295 (CA 11, 2001).
30
236 Mich App 696, 700; 601 NW2d 426 (1999).
23
damages.31 Even among cases in which a plaintiff recovered
punitive damages for sexual harassment, our research
discloses no case in which a party recovered a punitive
award that approached or exceeded $21 million that was
upheld on appeal.32
On the basis of three of the factors articulated by
this Court in Palenkas, we conclude that the verdict in
this case is “excessive” as that term is used in MCR 2.611.
Not only does the verdict exceed verdicts in similar cases
by leaps and bounds, but, as shown in this opinion, it was
awarded by a jury inflamed by hyperbolic rhetoric,
prejudice-baiting argument, and unscientific expert
testimony.
31
See Weeks v Baker & McKenzie, 63 Cal App 4th 1128;
74 Cal Rptr 2d 510 (1998) (the plaintiff, who alleged that
she sustained psychological injury from sexual harassment,
recovered $50,000 in compensatory damages and approximately
$7 million in punitive damages; the latter amount was later
reduced to $3.5 million); Deters v Equifax, 981 F Supp 1381
(D Kan, 1997) (plaintiff, whose coworkers rubbed and kissed
her against her will, received $5,000 in compensatory
damages and $1 million from the jury, reduced to $300,000
cap under 42 USC 1891a[b]), aff’d 202 F3d 1262 (CA 10,
2000).
32
See, e.g., Channon v United Parcel Service, Inc, 629
NW2d 835, 851 (Iowa, 2001) (the plaintiff, who was
subjected to unwelcome touching, sexual comments, and
assault, was awarded a verdict including approximately
$530,000 in compensatory damages and $80,220,000 in
punitive damages—the latter of which was reduced to
$300,000 under title VII).
24
2. PASSION AND PREJUDICE
Having determined that the verdict is excessive, we
also conclude excessiveness may be attributed to the effect
of plaintiff’s efforts to cause the jury to act on passion
and prejudice. An objective review of the record leads to
an unavoidable conclusion: plaintiff’s counsel engaged in a
systematic effort to divert the jury from its true task—
that of appropriately compensating the plaintiff for any
losses suffered as a result of defendant’s violation of the
CRA—and instead sought to inflame passion and to incite the
jury to punish the defendant even while disclaiming that he
was seeking punitive damages.
Plaintiff’s counsel deliberately tried to provoke the
jury by supplanting law, fact, and reason with prejudice,
misleading arguments, and repeated ad hominem attacks
against defendant based on its corporate status. Given the
undeniable role of this inflammatory rhetoric, the trial
court erred in denying defendant’s motion for a new trial.33
One of counsel’s tactics in this vein was his repeated
attempts to equate plaintiff with the victims of the
33
See Firchau v Foster, 371 Mich 75, 78, 79; 123 NW2d
151 (1963) (“[W]here language is such as evinces a studied
purpose to enflame or prejudice the jury, based upon facts
not in the case, this Court has not hesitated to
reverse.”).
25
Holocaust. This association began during the testimony of
plaintiff’s expert, Steven Hnat, when Mr. Hnat testified
that plaintiff’s psychological state was akin to that of
concentration camp survivors. Plaintiff’s counsel further
developed this theme during his closing argument:
Never again. Never again. That is a line
now used by the sabreurs [sic; sabras] in Israel,
the land of Israel, to mean that the unspeakable
horrors that were perpetrated on the people of
Israel, on the Jews, must never be forgotten and
must never happen again. Never again. Never
again.
Counsel also exhorted the jury to
provide full and complete justice and thereby, as
I indicated at the start of this trial, raise the
roof of this courthouse so that justice will ring
loud and clear. No more.
As those young [sabras] said in the land of
Israel, no more. We will not let this stand. We
will not allow this to pass. We will not allow
you, you, an equal with all of us in this, the
great equalizer, to crush the health and the
dreams of a woman who simply had the American
dream.
Even the final sentence of plaintiff’s closing argument
referenced the Holocaust theme: “Let’s bury this prejudice
once and for all so that we may appropriately say, never
again.”
This recurring rhetorical theme was especially
virulent given the context of plaintiff’s trial. In 1998,
Chrysler had merged with Daimler Benz AG, a German
26
automobile manufacturer. The merger was highly publicized—
particularly in metropolitan Detroit, where plaintiff’s
trial was held. And if any of the jurors had failed to
hear about the merger through media outlets, they were
privy to the news once plaintiff’s counsel pointed out
during his closing argument that Chrysler was under German
ownership:
Daimler-Chrysler may be powerful, but, my
God, they are going to have to recognize,
hopefully today by your verdict, that not only
must they face justice in this case, they must
obey the law.
We are a nation of laws, not powerful
individuals. We are a nation of laws . . .
And, I can assure that verdict will be heard
from the floor of that plant on Jefferson to the
board room in Auburn Hills or Stuttgart. . . .
Once they hear in Auburn Hills and in
Germany about Linda . . . it will stop.
Continuing on this theme, counsel argued that the jury now
had a chance to acquaint Chrysler’s German owners with a
distinctly American brand of justice:
[You must] ring that bell of justice even if
you have to have it rung across the oceans of
this land to their board rooms, wherever they may
be.
Chrysler must take notice that it is
responsible, under the Constitution and laws of
this state, and that we are ringing the bell of
justice so that she can walk a little taller and
stand a little prouder.
27
Thus, counsel’s closing argument had a clear
rhetorical aim of making defendant’s German ownership a
critical issue in the minds of the jurors. By associating
plaintiff with those who had endured inhuman treatment in
concentration camps, counsel likened defendant
DaimlerChrysler—which, as the jury was informed, was
partially under German ownership—with the Nazis. This
argument was an attempt to incite the jury to heap upon the
defendant the moral outrage that is now reserved for the
Nazis and those who assisted them in carrying out the
Holocaust. It was, in other words, a naked appeal to
passion and prejudice and an attempt to divert the jury
from the facts and the law relevant to this case.
Besides associating defendant with one of the most
destructive and inhumane forces in modern history, counsel
attempted artfully to convince the jury that defendant
itself had physically harmed plaintiff, when there was no
record of physical injury in the record. In describing
plaintiff’s refusal to quit her position as a millwright,
counsel argued:
She stayed. She was not going to give up.
You could kick her. You could torture her. You
could harass her. You could put her in
hospitals, but she was going to claw. She was
going to hold on. She was going to do whatever
was necessary to not lose that last shred of
humanity that made her pull—that constitutes the
28
soul, the thread, that will live on forever after
she is gone [Emphasis added].
Plaintiff’s counsel also equated plaintiff with a dog that
had been kicked, beaten, and physically abused on a daily
basis. Although counsel was quick to point out that he was
not saying that plaintiff was actually a dog, he failed to
mention that there was absolutely no evidence that
plaintiff had been physically abused in any way by any
employee of defendant.
Plaintiff’s counsel also played on prejudice against
corporations, arguing that DaimlerChrysler thought that it
did not have to obey the law simply because of its
corporate status:
You [defendant] are not God Almighty sitting
on the mountain. You are not Zeus . . .
We will hold you to the same standard we
will hold to anyone else, because their attitude
speaks volume [sic] of their belief that they are
above being held to the same standard as a lowly
woman millwright would be held to.
Later, plaintiff’s counsel argued:
[A]pparently . . . when you enter the
confines of a multi, a very, very successful
business over on Jefferson, that the laws of
civility don’t apply.
That they are . . . permitted under the laws
and the Constitution of this state to be less
civil and less respectful of civil rights. . . .
They think, they must think that it is okay with
you that this type of thing went on day after
29
day. That it was okay to treat a woman the way
Linda was treated.
That it was okay with you that they tried to
take away a woman’s livelihood, the first and
only female millwright ever employed at that
plant. That it is okay to humiliate and degrade
a woman as she tries to earn and do her best[.]
Equally telling is counsel’s argument that “[plaintiff was]
discriminated against twice, because she is not Lee
Iacocca. She is just a millwright.”
There was no evidence presented at trial suggesting
that anyone employed by defendant thought incorporation
relieved it of the obligation to follow the law. Nor was
there evidence that anyone in the management of
DaimlerChrysler approved of sexual harassment or would have
responded differently had a corporate officer been the
subject of sexual harassment.
These arguments were little more than pleas for the
jury to consider defendant’s corporate status rather than
its true liability under the CRA. However justifiable
counsel’s moral indignation over the treatment plaintiff
encountered while working for DaimlerChrysler, that
indignation does not and cannot justify rhetoric that
attempts to inflame passion and prejudice and that
intentionally subverts the jury’s fact-finding role.
30
Finally, plaintiff’s counsel attempted to inject
passion and prejudice into the adjudication of this matter
by deliberately and repeatedly using language that calls
for punitive rather than compensatory damages. A number of
these pleas for punitive damages have already been cited.
One request for punitive damages was particularly overt:
You must consider the days, the minutes, the
hours, and the weeks that she went through for
seven years, and for as long as God gives her on
this plant [sic], God help her, and allows her to
maintain on this plant [sic], despite the disease
that she is suffering from, the diseases that she
will suffer from, and that will kill her, you
must consider that, and so that your verdict
reflect the enormity of the wrong, the
intolerable nature of the injury, the extent of
the humiliation, the torture, the extent of the
outrage perpetrated upon, I can suggest, and you
can go back in your jury room, and you determine
whether this is right. That is should be more,
that it should be less.
But I suggest to you that you award as full
and complete justice for the seven years of past
and for the future, whatever it holds,
$140,000,000.00. You can break that any way you
want . . .
[T]he hopes and dreams of all free Americans
exist in Linda the way they do in all of us.
And to destroy those, and to subject anyone
to the type of indignity and injustice and
intolerable acts that this woman has been
subjected to for the past seven years, that
figure reflects a symbol, if you will, since you
can’t adequately compensate her for every . . .
31
This soliloquy stopped briefly only when defense counsel
objected to this use of punitive damages rhetoric and the
court gave a curative instruction.
The verdict rendered by the jury, however, showed that
the damage had been done—that counsel’s inflammatory
rhetoric had its intended effect. Instead of awarding
plaintiff an amount that fully and fairly compensated her,
the jury returned a verdict that responded to plaintiff’s
request that they “send a message” to Chrysler.
Counsel’s persistent and deliberate efforts to incite
passion and prejudice distinguish this case from those in
which inflammatory remarks were fleeting and
unintentional.34 Plaintiff’s counsel has been admonished in
two published Court of Appeals opinions since this trial
for precisely the same sort of hyperbolic and vitriolic
argument he made on behalf of Linda Gilbert.35
34
See, e.g., People v Bahoda, 448 Mich 261; 531 NW2d
659 (1994) (rejecting the defendant’s claim of
prosecutorial misconduct where references to the
defendant’s ethnicity were “innocuous, unintended, and not
of a degree that prejudiced the defendant's right to a fair
trial”).
35
In Powell v St John Hospital, 241 Mich App 64; 614 NW2d
666 (2000), the Court of Appeals “admonish[ed]” counsel for
misconduct that included his efforts to “gratuitously
insert[]” the issue of race into a medical malpractice
claim, [his] repeated “belittle[ing]” of witnesses, his
inappropriate assertion that the decedent had been
(continued…)
32
Overreaching, prejudice-baiting rhetoric appears to be a
calculated, routine feature of counsel’s trial strategy.
This deliberate use of improper argument, coupled with the
astonishingly excessive verdict rendered against defendant,
precludes us from concluding that counsel’s misconduct was
“innocuous” and “unintended.”
In fact, plaintiff’s counsel’s behavior during trial
is remarkably similar to what necessitated a new trial in
Reetz v Kinsman Marine Transit Co.36 The plaintiff in Reetz
was injured when he fell into an open hatch while working
(…continued)
“tortured,” and his personal attacks against defense
counsel.
Earlier, in Badalamenti v Beaumont Hosp-Troy, 237 Mich
App 278, 281; 602 NW2d 854 (1999), the Court of Appeals
held that counsel’s misconduct was so pervasive that it
would have provided a separate basis for a new trial.
Again, in Badalamenti, that Court rebuked counsel for his
personal attacks against the defendant and defense counsel,
his repeated argument that the defendant was greedy and
only cared about money, and that his appeal to the jurors’
self-interest as taxpayers. The panel concluded:
[Plaintiff’s counsel] sought to divert the
jurors’ attention from the merits of the case and
to enflame the passion of the jury. That
strategy paid off handsomely here in the form of
a large verdict for plaintiff. The cumulative
effect of the improper innuendo, remarks, and
arguments by plaintiff’s lead trial counsel was
so harmful and so highly prejudicial that we are
unable to conclude that the verdict in this case
was not affected. [Id. at 292.]
36
416 Mich 97; 330 NW2d 638 (1982).
33
as a deckhand. The vessel on which plaintiff sustained his
injuries was owned by Kinsman Marine Transit Company, and
George Steinbrenner, III, served as chairman of the board
for Kinsman’s parent company. Reetz’s counsel made
Kinsman’s corporate status an issue at trial, arguing that
Kinsman “cared nothing about Reetz’s welfare . . . .”37
Further, Reetz’s counsel made “repeated references” to Mr.
Steinbrenner, despite the fact that Mr. Steinbrenner had no
personal involvement in the case.38 We concluded in Reetz
that
[t]he effect of these comments was to create in
the minds of the jurors an image of Kinsman as an
unfeeling, powerful corporation controlled by a
ruthless millionaire. Even a juror who harbored
no prejudice against corporations or millionaires
might have been swayed by these inflammatory
remarks to alter his view of the evidence.[39]
On the basis of counsel’s ad hominem attacks against the
defendant and his numerous references to mutlimillion
dollar verdicts in other cases, we concluded that the jury
had been incurably tainted and a new trial was necessary.40
37
Id. at 110.
38
Id.
39
Id. at 111.
40
Id. at 107, 112.
34
The parallel to arguments made by plaintiff’s counsel
in this case is striking. Here, however, the anticorporate
rhetoric was even less subtle than that supporting a new
trial in Reetz.41 And instead of referring to other
multimillion dollar verdicts, counsel repeatedly utilized
language calling for punitive damages.42 Therefore, we
conclude that
“[t]he record in the instant case shows a
deliberate course of conduct on the part of
counsel for plaintiff aimed at preventing
defendant from having a fair and impartial trial.
We think the course of misconduct was so
persistently followed that a charge of the Court
in an effort to obviate the prejudice would have
been useless.”[43]
When faced with defendant’s motion for postjudgment
relief under MCR 2.611, the trial court had no reason to
deny relief and every reason to grant it. In making its
ruling on defendant’s posttrial motions, the trial court
clearly ignored the prominence of prejudicial rhetoric in
plaintiff’s closing argument and the effect that this
rhetoric had on the jury.
41
See, e.g., p 29 (“[A]pparently . . . when you enter
the confines of a multi, a very, very successful business
over on Jefferson, . . . the laws of civility don’t
apply.”).
42
See p 27.
43
Id. at 111-112, quoting Steudle v Yellow & Checker
Cab & Transfer Co, 287 Mich 1, 11-12; 282 NW2d 879 (1938).
35
The trial court’s failure to grant a new trial was,
therefore, an abuse of discretion. We reverse the judgment
of the Court of Appeals and remand this action to the
circuit court for proceedings in accordance with this
opinion.
C. MRE 702 & THE EXPERT OPINION TESTIMONY OF STEVEN HNAT
In order to provide guidance for the new trial, we
address the controversy surrounding the expert testimony
and the erroneous standard propounded by the Court of
Appeals concerning the gate keeping role required by MRE
702. We now clarify that MRE 702 requires the trial court
to ensure that each aspect of an expert witness’s proffered
testimony—including the data underlying the expert’s
theories and the methodology by which the expert draws
conclusions from that data—is reliable.
1. THE COURT’S GATEKEEPER ROLE UNDER MRE 702
MRE 702, as it existed at the time of trial,44
provided:
44
MRE 702 was amended effective January 1, 2004, to
particularize the kind of gatekeeper inquiry the trial
court is required to make. MRE 702 now states:
If the court determines that scientific,
technical, or other specialized knowledge will
assist the trier of fact to understand the
(continued…)
36
If the trial court determines that
recognized 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.
In both its former and current incarnations,45 MRE 702 has
imposed an obligation on the trial court to ensure that any
expert testimony admitted at trial is reliable.46 While the
(…continued)
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.
45
See n 18 and accompanying text.
46
See MRE 702 (providing that expert testimony is
admissible “[i]f the court determines” that certain
preconditions are met). See also Daubert v Merrell Dow
Pharmaceuticals, Inc, 509 US 579, 589; 113 S Ct 2786, 125 L
Ed 2d 469 (1993) (concluding from similar language in
Federal Rule of Evidence 702 that “the trial judge must
ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable” [emphasis
added]).
In fact, the trial court’s obligation under MRE 702 is
even stronger than that contemplated by FRE 702 because
Michigan’s rule specifically provides that the court’s
determination is a precondition to admissibility. Compare
FRE 702 (“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue . . .”) with the
(continued…)
37
exercise of this gatekeeper role is within a court’s
discretion, a trial judge may neither “abandon” this
obligation nor “perform the function inadequately.”47
Indeed, the obligation imposed by MRE 702 is
reinforced by MRE 104(a), which provides that
“[p]reliminary questions concerning the qualification of a
person to be a witness . . . shall be determined by the
court . . . .”48 The requirements of MRE 104(a) extended to
the application of MRE 702 because the admission of expert
testimony under this rule hinges on preliminary questions
concerning qualification. For example, reference in MRE
702 to “scientific” evidence “implies a grounding in the
methods and procedures of science,” and the rule’s
reference to “knowledge” “connotes more than subjective
belief or unsupported speculation.”49 As such, MRE 104
(…continued)
older MRE 702 (“If the court determines that recognized
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue . . . .” [Emphasis added.]).
47
Kumho Tire Co Ltd v Carmichael, 526 US 137, 158-159;
119 S Ct 1167; 143 L Ed 2d 238 (1999) (Scalia, J.,
concurring).
48
MRE 104(a) (emphasis added).
49
Daubert, supra at 590.
38
requires the trial court to address these preconditions
before admitting expert testimony.
It is well-established that the proponent of evidence
“bears the burden of establishing relevance and
admissibility.”50 At the time this case was tried, the
proponent of expert opinion evidence bore the burden of
establishing admissibility according to the Davis-Frye
“general acceptance” standard.51 MRE 702 has since been
amended explicitly to incorporate Daubert’s standards of
reliability. But this modification of MRE 702 changes only
the factors that a court may consider in determining
whether expert opinion evidence is admissible. It has not
altered the court’s fundamental duty of ensuring that all
expert opinion testimony—regardless of whether the
testimony is based on “novel”52 science—is reliable.
50
People v Crawford, 458 Mich 376, 388 n 6; 582 NW2d
785 (1998) (describing this rule as “basic hornbook law”).
51
See People v Davis, 343 Mich 348; 72 NW2d 269
(1995); Frye v United States, 54 App DC 46; 293 F 1013
(1923).
52
See, e.g., People v Young, 418 Mich 1, 24; 340 NW2d
805 (1983). Because the court’s gatekeeper role is
mandated by MRE 702, rather than Davis-Frye, the question
whether Davis-Frye is applicable to evidence that is not
“novel” has no bearing on whether the court’s gatekeeper
responsibilities extend to such evidence. These
responsibilities are mandated by MRE 702 irrespective of
whether proffered evidence is “novel.” See MRE 702; see
(continued…)
39
Thus, properly understood, the court’s gatekeeper role
is the same under Davis-Frye and Daubert.53 Regardless of
which test the court applies, the court may admit evidence
only once it ensures, pursuant to MRE 702, that expert
testimony meets that rule’s standard of reliability. In
other words, both tests require courts to exclude junk
science; Daubert simply allows courts to consider more than
just “general acceptance” in determining whether expert
testimony must be excluded.
This gatekeeper role applies to all stages of expert
analysis. MRE 702 mandates a searching inquiry, not just
of the data underlying expert testimony, but also of the
manner in which the expert interprets and extrapolates from
those data. Thus, it is insufficient for the proponent of
expert opinion merely to show that the opinion rests on
data viewed as legitimate in the context of a particular
area of expertise (such as medicine). The proponent must
(…continued)
also General Electric Co v Joiner, 522 US 136, 142; 118 S
Ct 512; 139 L Ed 2d 508 (1997) (noting that FRE 702
overruled Frye but left intact the court’s gatekeeper
responsibilities).
53
See Joiner, supra at 142 (“[W]hile the Federal Rules
of Evidence allow district courts to admit a somewhat
broader range of scientific testimony than would have been
admissible under Frye, they leave in place the ’gatekeeper’
role of the trial judge in screening such evidence.”
[Emphasis added.]).
40
also show that any opinion based on those data expresses
conclusions reached through reliable principles and
methodology.54
Careful vetting of all aspects of expert testimony is
especially important when an expert provides testimony
about causation.55 The United States Supreme Court’s caveat
in Joiner is persuasive:
[N]othing in either Daubert or the Federal
Rules of Evidence requires a district court to
admit opinion evidence which is connected to
existing data only by the ipse dixit of the
expert. A court may conclude that there is simply
too great an analytical gap between the data and
the opinion proffered.[56]
When a court focuses its MRE 702 inquiry on the data
underlying expert opinion and neglects to evaluate the
extent to which an expert extrapolates from those data in a
manner consistent with Davis-Frye (or now Daubert), it runs
the risk of overlooking a yawning “analytical gap” between
54
See, e.g., Porter v Whitehall Labs, Inc, 9 F3d 607,
615-617 (CA 7, 1993) (holding that the district court
properly excluded expert testimony in which the expert’s
theory that plaintiff’s injuries were caused by ingestion
of ibuprofen failed under Daubert).
55
See, e.g., Diaz v Johnson Matthey, Inc, 893 F Supp
358, 377 (D NJ, 1995) (concluding that an expert’s
“testimony on specific causation [was] not sufficiently
reliable to be admissible under Rule 702”).
56
Joiner, supra at 146.
41
that data and the opinion expressed by an expert.57 As a
result, ostensibly legitimate data may serve as a Trojan
horse that facilitates the surreptitious advance of junk
science and spurious, unreliable opinions.
2. MR. HNAT’S MEDICAL OPINION TESTIMONY
Both the trial court and the Court of Appeals seem
unaware of the core gatekeeper principles described above.
As a result, the faux “medical” opinion of an individual
who lacked any medical education, experience, training,
skill, or knowledge became the linchpin of plaintiff’s case
and unmistakably affected the verdict.
Plaintiff’s theory at trial was that the sexual
harassment she encountered as defendant’s employee had
produced a permanent change in her “brain chemistry,” that
this neurological change led to an increase in substance
abuse and that, in the end, defendant’s failure to curb
sexual harassment in plaintiff’s workplace would cause her
to die the most painful death imaginable because of the
metabolic physiological phenomena he described.58 The
57
Id.
58
Mr. Hnat told the jury that “[p]ancreatitis is the
worse [sic] pain a person could experience. The pancreas
as you know is very innervated [sic] and when you develop
pancreatitis that is the most painful way to die.”
42
theory was presented through the testimony of Mr. Hnat, a
social worker, and was based on his analysis of medical
records from various hospitals and clinics where plaintiff
was treated for substance abuse.
Mr. Hnat testified that he was a certified social
worker with experience in substance abuse treatment.59 He
also testified that he had received a master’s degree in
psychobiology, although it was revealed after trial that
this testimony was patently false.60
59
A social worker is certified in Michigan under MCL
333.18511. “Social work,” as used in this section, is
defined as
the professional application of social work
values, principles, and techniques to counseling
or to helping an individual, family, group, or
community do 1 or more of the following:
(i) Enhance or restore the capacity for
social functioning [or]
(ii) Provide, obtain, or improve tangible
social and health services. [MCL 333.18501(d)].
60
Mr. Hnat was allowed to testify based in part on his
assertions—both in court and in a written resume submitted
as an exhibit—that he had a master’s degree in
psychobiology from the University of Michigan and that he
had received the prestigious Pillsbury Prize in psychology
as an undergraduate. Defendant discovered after trial that
both statements were false. Contrary to his sworn
testimony, plaintiff had neither obtained a master’s degree
in psychobiology nor received the Pillsbury Prize as an
undergraduate.
(continued…)
43
Apparently influenced by Mr. Hnat’s claim to have
expertise in psychobiology, the trial court permitted
plaintiff to introduce medical records through Mr. Hnat’s
testimony. Before the admission of records from Sacred
Heart Rehabilitation Center, defense counsel raised the
following objection:
Your Honor, I object to their admission.
Certainly, with regard to this witness, he is not
a medical doctor to review all of these other
records and testify about them. He is a social
worker and he is competent to testify about his
own records.
It is just not appropriate. The foundation
hasn’t been laid for the introduction of those
records, certainly not pursuant to this
individual.
(…continued)
We disagree with the Court of Appeals’ suggestion that
the trial court could have legitimately concluded that Mr.
Hnat “had simply misspoken” when he said that he had a
Master’s degree in psychobiology and had won the Pillsbury
Prize. Slip op p 30. We doubt that anyone could honestly
misspeak about having a degree that he did not, in fact,
possess, much less that he could “misspeak” in a written
resume. We also disagree with the lower courts’ conclusion
that there is no real difference between completing
coursework necessary for a degree and actually receiving a
degree. Unless and until an educational institution
confers a degree, which is the institution’s official
determination that a student has met all the requirements,
an expert witness may not, consistent with the oath,
affirmatively represent to having “received” the degree.
This discrepancy in Mr. Hnat’s qualifications could
not have been inadvertent and ought to have given the JNOV
motion. In addition, the falsification of Mr. Hnat’s
credentials supports our concern that the trial of this
case was rife with unseemly tactics by plaintiff’s counsel.
44
The trial court rejected defendant’s argument that Mr. Hnat
was unqualified to articulate an opinion based on records
compiled when plaintiff sought treatment for substance
abuse. However, the record in this case reveals that,
irrespective of whether the medical records detailing
plaintiff’s substance abuse treatment were admissible, Mr.
Hnat was asked to interpret those records and thereby
render an opinion that he was wholly unqualified to give.
For example, the following exchange took place during
plaintiff’s direct examination of Mr. Hnat:
Q. Will [plaintiff] be able to work in light
of what you know about her condition as recently
as yesterday? Will she continue to be physically
able to work?
A. No. Her medical complications at this
point have progressed to the point where she is
going to be physically unable to work fairly
soon.
She is going to have increasing
hospitalizations most likely to deal with the
cirrhosis, the pancreatitis, she may need
transplants at some point, she may need any range
of radical medical intervention. So her ability
to work physically is severely impaired at this
point even though right now she is functioning
okay. There is going to be increasing problems
associated with this medical condition. It’s
unavoidable. People have those severe
complications must work [sic].
Q. Do you have any idea what was the cause
of her problems as they exist in this lady as
late as yesterday?
45
A. Alcoholism, major depression precipitated
by work stresses, and sexual harassment. That is
the bottom line.
Q. What do you mean that is the bottom line?
A. I mean that is what happened here, that
is what is killing this person, probably has
killed her as far as you can tell at this point.
I wouldn’t bet on her living very long. She
might, if she gets treatment. There’s a chance.
If she doesn’t get treatment, she’ll die fairly
soon. [Emphasis added.]
The impact of Mr. Hnat’s “medical opinion” on the verdict
rendered in this case could not have been more pronounced.
Especially noteworthy is the fact that, during closing
arguments, plaintiff’s counsel encouraged the jury to treat
Mr. Hnat’s opinion as an actual medical prognosis:
You heard testimony, and I don’t think Mr.
Hnat was being glib when he testified about the
fact that although he is not an omniscient, he is
not a sooth sayer, he has read her death
certificate.
Her death certificate, her death will come
sooner or later, none of us can know for sure.
You will consider this in a haze of alcohol. She
will die either in a violent event if she drives,
or she will die of the effects of alcohol on her
body. She will have chronic hepatitis, in other
words, a disease of the liver, cirrhosis, if you
will. She will have dehydration as Mr. Hnat
testified to. She will have metabolic acidosis
that will slowly put her into a coma.
She will have increased red blood cells, or
low blood cells to fight infection. She will
have chronic pancreatitis. One of the most
painful diseases known to medical science,
inflammation of her pancreas. And she has
46
suffered all of these during hospitalizations, as
Mr. Hnat has testified to.
She will suffer severe abdominal pain, and
she will die. And she will not live out her
life.
At one point during closing arguments, plaintiff’s counsel
even told the jury that plaintiff had to leave the
courtroom for a portion of his closing argument because the
“prognosis that she has for her life” was too grim for her
to hear.61
As these excerpts reveal, Mr. Hnat unquestionably used
the content of plaintiff’s treatment records to render an
opinion that required medical expertise. He speculated
about plaintiff’s impending physical inability to work,
testified about the type of medical complications that
plaintiff would soon experience, predicted the cause of her
death, and gave testimony concerning plaintiff’s life
expectancy. Mr. Hnat expressed his “opinion” on
physiological disease, cause of death, and plaintiff’s
lifespan. Yet there was no evidence or showing that Mr.
61
After plaintiff left the courtroom (apparently at
counsel’s request), counsel told the jury, “While it is
necessary for me to review evidence, I don’t believe that
it is necessary for me to review statements made by doctors
in front of Linda Gilbert with regard to the prognosis that
she has for her life, because I don’t believe that it is my
job here to rob her of whatever hope that she may have for
the future.”
47
Hnat was qualified by training, experience, or knowledge to
render such opinions or interpret medical records that
would arguably support such a diagnosis or prognosis.
There was, in other words, no evidence that Mr. Hnat was
qualified to testify that defendant’s actions concerning
workplace harassment caused neurological and physiological
changes in plaintiff and shortened her life.
Plaintiff’s arguments in support of Mr. Hnat’s testimony
and the Court of Appeals’ acceptance of those arguments can
be based only on a misinterpretation of MRE 702. Plaintiff
argued, for example, that Mr. Hnat was qualified to
interpret plaintiff’s medical records because he is a
“treater.” In order for Mr. Hnat to provide an admissible
opinion interpreting medical records for purposes other
than those related to the expertise of social workers,
plaintiff bore the burden of showing that Mr. Hnat was
qualified by knowledge, skill, experience, training, or
education in medicine. Given the absence of such evidence,
plaintiff failed to carry the burden of establishing the
admissibility of Mr. Hnat’s medical opinions, regardless of
the admissibility of the records that ostensibly informed
this opinion.
Likewise, we reject the Court of Appeals’ argument
that “the ‘mere fact’ that Mr. Hnat ‘is not a medical
48
practitioner does not render him unqualified as an expert
witness’” because “[a]ny limitations in” Mr. Hnat’s
“qualifications are relevant to the weight, not the
admissibility, of his testimony.”62 The Court of Appeals’
observation that one need not be a medical practitioner to
testify as an expert is little more than a truism. And we
do not disagree with the proposition that, in some
circumstances, an expert’s qualifications pertain to weight
rather than to the admissibility of the expert’s opinion.63
That is not to say, however, that any issue of
qualification relates to weight rather than admissibility.
As shown, MRE 702 establishes preconditions for the
admission of expert opinion. Such testimony must be rooted
62
Slip op at 33-34, quoting Grow, 236 Mich App 713-
714.
63
In Grow, for example, the Court of Appeals held that
the testimony of a certified social worker with fourteen
years of experience in counseling “victims of sexual,
physical, and emotional abuse” was admissible on the issue
of plaintiff’s posttraumatic stress disorder. Id. at 713.
Because the social worker in Grow had actual experience in
counseling persons suffering from posttraumatic stress
disorder, his testimony was admissible under MRE 702, which
refers to a witness “qualified as an expert by knowledge,
skill, experience, training, or education . . . .”
(Emphasis added.) If the defendant in Grow had offered the
expert opinion of a psychiatrist with experience in
treating posttraumatic stress disorder, the more limited
qualifications of plaintiff’s certified social worker would
have been relevant to the weight of his testimony even
though they would not have barred its admission.
49
in “recognized scientific, technical, or other specialized
knowledge” and must assist the trier of fact. The burden
is on the party offering the expert to satisfy the
preconditions established by MRE 702.64
Where the subject of the proffered testimony is far
beyond the scope of an individual’s expertise—for example,
where a party offers an expert in economics to testify
about biochemistry—that testimony is inadmissible under MRE
702. In such cases, it would be inaccurate to say that the
expert’s lack of expertise or experience merely relates to
the weight of her testimony. An expert who lacks
“knowledge” in the field at issue cannot “assist the trier
of fact.”
Here, according to plaintiff’s counsel, Mr. Hnat gave
plaintiff a “prognosis” on the basis of his interpretation
of records from medical and treatment facilities. The
medical “prognosis” of a social worker who has no training
in medicine and lacks any demonstrated ability to interpret
medical records meaningfully is of little assistance to the
trier of fact.
We also reject the Court of Appeals’ assertion that
Mr. Hnat’s medical testimony on the physiological effects
64
Crawford, supra at 388 n 6.
50
of alcoholism and depression was admissible because these
effects are “common knowledge.”65 As the United States
District Court for the Eastern District of Michigan has
aptly stated:
[E]xpert testimony is not admissible unless
it will be helpful to the fact finder. Such
testimony is unhelpful when it is unreliable or
irrelevant, as the [Supreme] Court observed in
Daubert, . . . and also when it merely deals with
a proposition that is not beyond the ken of
common knowledge.[66]
To justify the admission of an expert opinion on the basis
of the belief that no expertise is necessary to render such
an opinion is to fail to give any effect to MRE 702, and,
indeed, to turn that rule on its head. The previous MRE
702 allowed expert opinion testimony only “[i]f the trial
court determines that recognized scientific, technical, or
other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue.
. . .” Thus, the Court of Appeals panel’s rationalization
that Mr. Hnat’s expert opinion testimony was harmlessly
admitted because it was based on “common knowledge” is
inconsistent with the requirements of MRE 702.
65
See slip op at 34.
66
Zuzula v Abb Power T & D Co, Inc, 267 F Supp 2d 703,
711 (ED Mich, 2003) (emphasis added).
51
Unless information requiring expert interpretation
actually goes through the crucible of analysis by a
qualified expert, it is of little assistance to the jury
and therefore inadmissible under MRE 702. We direct the
trial judge on retrial to ensure that expert opinion
testimony meets the purpose expressed in MRE 702—that of
assisting the trier of fact through the introduction of
reliable “scientific, technical, or other specialized
knowledge.”
D. THE SUFFICIENCY OF PLAINTIFF’S CLAIM UNDER THE CRA
We turn finally to defendant’s claim that the trial court
erred by admitting evidence regarding incidents of sexual
harassment of which defendant was never properly notified.
Defendant moved in limine to exclude incidents that
plaintiff reported for the first time at her deposition.
The court denied that motion, concluding that the jury
could consider each incident in order to determine whether
defendant had actual or constructive notice that plaintiff
was subjected to a hostile environment. The Court of
Appeals employed a similar logic in concluding that each
incident was admissible.
52
While the trial court did not err in denying defendant’s
motion to exclude those incidents,67 this ruling has
resulted in substantial confusion. We now clarify the
legal justification for the trial court’s decision in order
to minimize confusion during retrial.
Under the Civil Rights Act, an employer may be liable
for an employee’s sexual harassment when the employer has
notice of the harassment and fails to take appropriate
corrective action.68 In Chambers, we held that “notice of
sexual harassment is adequate if, by an objective standard,
the totality of the circumstances were such that a
reasonable employer would have been aware of a substantial
probability that sexual harassment was occurring.”69
67
We do not mean to say, however, that every incident
described at trial was admissible to support a claim of
sexual harassment. In Haynie v Michigan, 468 Mich 302; 664
NW2d 129 (2003), we stressed that sexual harassment is
defined by statute as “unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct or
communication of a sexual nature . . . ." Id. at 309,
quoting MCL 37.2103(i) (emphasis added). Some of the
incidents described during this trial were not sexual in
nature and therefore were improperly admitted to support
plaintiff’s theory of sexual harassment. Haynie shall
control the admission of evidence at the retrial.
68
Chambers v Trettco, Inc, 463 Mich 297, 312; 614 NW2d
910 (2000).
69
Id. at 319.
53
When a plaintiff describes an incident of sexual
harassment for the first time at her deposition, evidence
pertaining to that incident may be admissible under two
rationales. First, such evidence may be admissible in
order to establish the nature and extent of the hostile
environment to which plaintiff was subjected and the
adequacy of defendant’s response upon being notified about
sexual harassment. Second, that evidence may be admissible
under a “constructive notice” theory when a plaintiff
contends that sexual harassment was so pervasive that her
employer should have known of the need for corrective
measures.70
In this case, plaintiff gave actual notice to defendant
through defendant’s formal reporting procedures before
initiating this lawsuit. Any incidents that she described
for the first time at her deposition were admissible in
order to establish an element of her hostile environment
claim—that “the unwelcome sexual conduct or communication
was intended to or in fact did substantially interfere with
the employee's employment or created an intimidating,
hostile, or offensive work environment,”71—and to establish
70
See id.
71
Id at 311 (emphasis added).
54
the inadequacy of defendant’s response to that hostile
environment. Therefore, the circuit court did not err by
denying defendant’s motion to exclude evidence of any
incident that plaintiff described for the first time at her
deposition.
III. CONCLUSION
For the foregoing reasons, we conclude that the trial
court abused its discretion in denying defendant’s motion
for a new trial under MCR 2.611. Once the jury issued its
verdict, it should have been apparent to the trial court
that the persistent and calculated efforts of plaintiff’s
trial counsel to thwart the jury’s fact-finding role had
borne fruit. The jury’s deliberations had been palpably
affected and this wrought substantial harm to defendant’s
right to a fair trial. This case is remanded to the Wayne
Circuit Court for a new trial to be held consistently with
this opinion.
Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor
Stephen J. Markman
55
S T A T E O F M I C H I G A N
SUPREME COURT
LINDA M. GILBERT,
Plaintiff-Appellee,
v No. 122457
DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (dissenting).
This case is about male employees sexually harassing a
female employee and an employer that did very little to try
to make it stop. This case is not about plaintiff’s
counsel’s “routine” behavior, contrary to the assertions of
the majority. Ante at 33. Whatever plaintiff’s counsel
may have done in past cases is irrelevant to this
particular case. In this case, an objective review of the
evidence indicates that plaintiff overwhelmingly provided
facts to prove that she was sexually harassed and that
defendant conducted an inadequate investigation into this
harassment. Defendant’s inadequacies in the work place
continued in the courtroom as it selected a trial strategy
intended to “blame the victim” for the harassment that
occurred. Defendant’s repeated errors in judgment should
not now be redressed by this Court.
The majority remands this matter for a new trial
because it asserts that the trial court abused its
discretion in denying defendant’s motion for a new trial.
The majority claims that “it should have been apparent to
the trial court that the persistent and calculated efforts
of plaintiff’s trial counsel to thwart the jury’s fact-
finding role had borne fruit.” Ante at 54. I disagree and
believe there was substantial admissible evidence for the
jury to hold defendant liable. Therefore, I respectfully
dissent.
I. EVIDENCE OF HARASSMENT AND THE CONDUCT OF
PLAINTIFF’S COUNSEL
The majority states that “the jury’s verdict
unmistakably reflects passion rather than reason and
prejudice rather than impartiality.” Ante at 4. I
disagree. The standard for reviewing defendant’s motion
for a new trial, MCR 2.611, is the abuse of discretion
standard. Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914
(1942). An abuse of discretion occurs “only when the
result is so palpably and grossly violative of fact and
logic that it evidences not the exercise of will but
perversity of will, not the exercise of judgment but
2
defiance thereof, not the exercise of reason but rather of
passion or bias.” Alken-Ziegler, Inc v Waterbury Headers
Corp, 461 Mich 219, 227; 600 NW2d 638 (1999) (citations and
internal quotation marks omitted). While the majority
clearly disagrees with the verdict, there was ample
testimony from numerous witnesses to support the jury’s
verdict that plaintiff, the first and only female
millwright for a lengthy period at defendant’s plant, was
the victim of sexual harassment and that defendant did not
engage in an adequate investigation or remedial action to
stop this harassment.
An employee in defendant’s human resources department
testified that the investigation into plaintiff’s sexual
harassment claims was inadequate.1 Another employee in
defendant’s human resources department testified that
1
Q. But we all know that you didn’t do any
investigation?
A. Not adequately. Yes. As has been
brought out here.
* * *
Q. After the Polaroid penis, you did
nothing, am I correct, you did nothing, you
decided you did everything you could do and you
decided not to take any further action, correct.
A. That’s what we decided.
3
without being given a name he would not even know where to
begin a sexual harassment investigation. Yet another
employee in the human resources department testified that
she told plaintiff she would provide her with the name and
number of a union representative who might be helpful, but
the name and number were never provided to plaintiff
because the employee never saw plaintiff again.2
Defendant’s corporate representative at trial, who was also
one of plaintiff’s supervisors, conveyed to the jury that
defendant’s investigation essentially consisted of passing
out defendant’s sexual harassment policy and asking the men
if they harassed plaintiff or knew who did.3 The trial
2
Q. And you actually never did give Linda
[plaintiff] that number because you didn’t see
her again am I correct?
A. That is correct.
3
Q. And if somebody didn’t come forward to
you, apparently, and tell you that they saw so
and so do it, that was it?
A. Working with the frame of the union, the
local agreements, that’s it.
* * *
Q. And you’re claiming—by the way, with
regard to this [the March 1995 incident, which
(continued…)
4
representative said he approached some of the men as a
group and asked if they knew who was sexually harassing
plaintiff. He also said he hoped someone else would do the
investigating and that he did not feel it was his
responsibility to investigate.4 The trial representative
(…continued)
was the poem “The Creation of a Pussy”] that’s
the only thing that you know of that–or the only
claim quote unquote investigation that you did
was ask the men whether they knew who did it; is
that what you claim?
A. Yes, sir.
Q. Okay. Now you didn’t do it in a
systematic fashion, did you?
A. As far as questioning the men?
Q. Right.
A. No, I did not.
Q. You just as you could run into them?
A. As I approached them, yes.
4
Regarding later incidents, the trial representative
testified:
Q. Since you felt that you expected Chrysler
[defendant] would assign the lawyers or somebody
else to investigate Linda’s [plaintiff’s] sworn
statement regarding the continued and unabated
acts of harassment between 1992 and November 4 of
199—on November 3, 1994 when her statement was
taken, did you ever see anybody from Chrysler
assigned to investigate these claims—not you but
somebody else, as a result of the statement?
A. No, I did not.
(continued…)
5
later testified that asking the men if they knew who was
responsible for the incidents was inadequate. He further
stated that he did not know of any other investigation that
was done.
An employee who worked for defendant for thirty-one
years testified that he had never seen anyone treated like
plaintiff. He stated, “She was relentlessly pounded with
derogatory statements, with no help when she was given a
job, and there were several people involved on the same
job. She would not get a lot of cooperation. She was just
basically resented that she was a woman, making a man’s
wage.” The employee also testified that plaintiff was
subjected to physical danger by not getting the cooperation
she needed, and that other millwrights received, when doing
her work. Although millwrights commonly work in pairs, she
was often forced to work alone. He testified that this
abusive conduct occurred nearly every day, was devastating
to plaintiff, and was readily apparent to plaintiff’s
supervisors. He also testified that supervisors made
(…continued)
Q. So when you said you would have expected
the lawyers to do it, even though you expected it
apparently nobody at Daimler Chrysler did it, am
I correct?
A. Not that I’m aware of.
6
offensive comments as well. This employee drove plaintiff
home from work for a period and testified she cried at
least one hundred times on the way home from work. “She
never knew what to expect on any given day that she went
into work . . . .” He also testified that the stench of
urine from a chair in an area set off for plaintiff made it
evident that someone had urinated on it. Further, the
employee stated that he did not observe any of defendant’s
employees try to stop the harassment.
Plaintiff testified that when she went to work each
day she “never knew what to expect.” She said abusive
comments were essentially an everyday occurrence, and she
said she was isolated and ostracized at work. Plaintiff
stated that the conduct made her afraid and angry and that
she had problems sleeping. She also experienced headaches,
stomach problems, and problems associated with her asthma.
Plaintiff said she felt hopeless and attempted suicide
because she could not get any cooperation or help from
defendant.5 Regarding her suicide attempt, plaintiff said
5
Plaintiff testified:
And I tried to do something about it, and
nothing got done about it. People saw what was
happening. Nobody would do anything. Nobody
would help me.
(continued…)
7
“that’s what I did and I regret it, but I just felt pushed
to that point where I couldn’t take it anymore.” Plaintiff
said she felt torn up inside and that the harassment was an
assault to her person. Plaintiff said she began drinking
“to escape” and help dull her feelings. Plaintiff
testified that the abusive comments were still being made
at the time of the trial, but she was not going to quit
over the harassment; she refused to be driven out of her
job.
I believe even this limited testimony indicates that
there was ample evidence to support the jury’s verdict, and
(…continued)
* * *
I turned things in. There was a, in my
opinion, there was a slight attempt at,
perfunctory attempt at making a report. After
those things were turned in, the guys laughed
about it. They thought it was a big joke. The
first thing that got turned in. It was a week
and a half later that the second thing, picture
of the penis was on my tool box.
So, that showed how serious they took
everything.
Plaintiff also testified that when she
reported that “BITCH” was written on masking tape
and fastened to her toolbox, she was told by a
supervisor not to show that it bothered her and
the harassment may stop. Plaintiff was also told
that changing her clothes in a certain location,
which was enclosed, was “drawing attention to”
herself.
8
I disagree that the verdict was the result of plaintiff’s
counsel’s inflaming the jury with “hyperbolic rhetoric,
prejudice-baiting argument, and unscientific expert
testimony.” Ante at 24. Plaintiff’s counsel vigorously
pursued this case; however, defense counsel’s approach was
no less vigorous.
Although defense counsel’s strategy ultimately proved
to be ineffective, and although the majority certainly
disagrees with the verdict, it does not necessarily mean
that plaintiff’s counsel behaved inappropriately. A
thorough review of defense counsel’s conduct during trial
illustrates that defense counsel’s strategy was inadequate
and, at times, disingenuous.
For example, defense counsel tried to characterize
some of the men alleged to have engaged in the harassment
as “ornery” and she referred to one as “basically a good
guy.” She tried to characterize their comments as “shop
talk”6 or “a slip of the tongue,” and their conduct as
6
Plaintiff testified she “was called a fucking cunt,
whore, bitch, drunk ass, pussy.”
Defense counsel then asked witnesses if words like
bitch or cunt were appropriate as “shop talk.”
9
“horseplay.”7 She repeatedly questioned plaintiff about
whether she reported harassing incidents to supervisors
while plaintiff continually testified that the supervisors
were standing right next to her during the incidents.8 When
plaintiff testified that a coworker was snidely telling
other employees to watch what they were saying or it would
be labeled sexual harassment, defense counsel tried to
characterize the coworker as being helpful by merely
7
Contrary to defense counsel’s characterization, an
employee in defendant’s human resources department stated
that a reasonable person would find the cartoons and
pictures offensive. Another said he considered the penis
photograph to be sexual harassment.
8
A. [The supervisors h]ad been standing in
the group of people with him speaking that way,
yes.
Q. And did you at any time ask either of
them why they are permitting this individual to
address you in such fashion?
A. No, I didn’t.
Q. Then, how can you be certain they heard
what you heard?
A. Because they were right there.
Q. What do you mean by right there,
shoulder-to-shoulder with you?
A. We were all in a group. I mean, they
weren’t far enough away where they were out of
earshot.
10
instructing other people about what is appropriate.
Regarding an article about men and sperm left near
plaintiff’s soda can, defense counsel attempted to minimize
the incident because the article was in a scientific
magazine.
Defense counsel questioned plaintiff about plaintiff’s
alleged failures to keep abreast of defendant’s
investigations. Defense counsel also repeatedly alluded to
the fact that plaintiff knew who was harassing her, even
though plaintiff repeatedly said she did not know for
certain and she did not want to falsely accuse someone.
Defense counsel argued, “She [plaintiff] thought it was
more important to protect whoever it was that was
responsible.”9 Regarding plaintiff, defense counsel argued,
“There is absolutely nothing wrong with her.” Consistent
with the strategy that plaintiff was responsible for the
continued mistreatment, defense counsel asked witnesses if
plaintiff was a “tomboy” and she also questioned whether
plaintiff had “put herself in a position of being in a
profession that has historically been dominated by me[n].”
9
Defendant’s records, however, indicate that plaintiff
did not know who was responsible for leaving harassing
items. For example, defendant’s records on October 10,
1994 state, “She [plaintiff] also stated she know [sic] it
is a maintenance employee and she can only guest [sic] at
this time because she hasn’t seen them doing this.”
11
During closing argument, defense counsel brought up
private incidents relating to plaintiff that occurred over
twenty years ago, even though plaintiff did not begin
working with defendant until 1992. She argued the only
problem plaintiff’s coworkers had with plaintiff related to
her alcoholism. “They never had a problem with Ms. Gilbert
as a female.” Defense counsel’s theme was to blame the
victim. This was demonstrated in a statement she made
indicating that plaintiff’s “medical records also reflect
that she has a tendency to blame everyone else for her
problems, rather than look directly at her problems.”
The majority criticizes the conduct of plaintiff’s
counsel; however, a thorough review of the trial
transcripts and lengthy closing argument finds sparse
objections made by defense counsel and no impropriety
justifying a new trial. Regarding statements made by
plaintiff’s counsel during closing argument, he first
stated that plaintiff thanked the jury for allowing her to
exercise her right as an American citizen to have her day
in court. Plaintiff’s theme during closing argument was
that plaintiff had great fortitude to withstand the
harassment. Plaintiff had repeatedly testified that she
was not a quitter, she had every right to work at the
plant, and she was not going to let them run her out.
12
Plaintiff’s counsel referenced the strength of those who
were affected by the Holocaust. He also referenced
Prometheus and Zeus, and stated that the myth of the eagle
pecking at Prometheus’s liver for all eternity reminded him
of plaintiff’s ordeal. He compared plaintiff to Rosa Parks
and Arthur Ashe, as well as a dog that was kicked and
abused every day. He even referred to plaintiff as a
pioneer. When reviewing the closing argument in context,
it is obvious that plaintiff’s counsel was arguing that
plaintiff was courageous and determined. Contrary to the
majority’s assertion, plaintiff’s counsel was no more
likening plaintiff to the Holocaust victims than he was
likening her to a figure in Greek mythology being pecked by
a bird.
Plaintiff’s counsel also appropriately stated that
defendant should be judged just as any individual would be
judged. And he stated that the jury could not punish
defendant; it could only compensate plaintiff for the harm
suffered. While plaintiff’s counsel did refer to “torture”
and “beating plaintiff down,” the jury heard weeks of
testimony and was aware that no evidence of physical abuse
was introduced. Defense counsel obviously did not think
the phrases were inflammatory because there was no
objection raised. To suggest, as the majority does, that
13
the jury was somehow influenced or confused by these random
phrases during closing arguments is insulting to the
jurors’ intelligence.
The majority’s blanket statements about plaintiff’s
counsel belie the truth of the record. Plaintiff’s counsel
no more played on the prejudices of the jury because
defendant was a German company than he played on the
prejudices of the jury because he hoped the jury liked
dogs, tennis players, or well-known pioneers such as Lewis
and Clark. While plaintiff’s counsel’s comments are
highlighted by the majority, the references were miniscule
in the context of the entire trial. The majority hopes
that by merely stating that these references were “naked
appeals to entice the jury to consider its passions and
prejudice,” ante at 3, it can magically transform the
events that occurred at trial. However, a review of the
whole record reveals that the majority’s approach misstates
the events at trial.
The majority states, “Overreaching, prejudice-baiting
rhetoric appears to be a calculated, routine feature of
counsel’s trial strategy.” Ante at 33. I do not know if
that statement is accurate. But what I do know is that it
is not an accurate statement in this case. No matter what
plaintiff’s counsel’s routine may be, this Court should
14
focus only on the facts before us. An impartial review of
those facts indicates the behavior of plaintiff’s counsel
does not warrant a new trial.
II. EXPERT WITNESS TESTIMONY
I agree with the majority that “MRE 702 has imposed an
obligation upon the trial court to ensure that any expert
testimony admitted at trial is reliable.” Ante at 36-37.
However, I disagree that the trial court erred in failing
to conduct its gatekeeper role in this case.
Stephen Hnat, a fact and expert witness called by
plaintiff, testified that he is a clinical social worker,
which means he is licensed to perform psychotherapy—both
group therapy and individual therapy—primarily for people
who have substance abuse disorders, or depressive or
emotional disorders. He has worked as a clinical social
worker since 1981. Among other positions, Mr. Hnat served
as staff therapist and the director of cocaine treatment
for Ford Hospital-Maplegrove.
During his testimony, Mr. Hnat clarified that he is
not a doctor and that he did not complete his Ph.D. Unlike
the majority, I do not find any evidence that Mr. Hnat’s
misstatement that he possessed a master’s degree was
intentional. Mr. Hnat entered a doctorate program that he
did not complete. It is not unreasonable that, twenty
15
years later, he was unclear about whether he had completed
the required paperwork to be awarded his master’s degree.
I also do not find that, in light of Mr. Hnat’s other
credentials, the misstatement affected the jury verdict.
Mr. Hnat detailed a lengthy career that included consulting
with the Michigan Department of Transportation, as well as
the Detroit Red Wings, Detroit Tigers, Detroit Lions, and
the University of Michigan Athletic Department. Mr. Hnat
also served as a consultant to the National Institute of
Drug Abuse and served on the President’s Task Force for a
Drug-Free Workplace. He also conducted research over the
years and authored an award-winning video used by numerous
corporations. Further, he served as an instructor at the
Michigan Judicial Institute and as an adjunct professor at
the University of Detroit Mercy. During direct
examination, plaintiff’s counsel and Mr. Hnat were
forthcoming about their past working relationship.
Mr. Hnat first treated plaintiff in 1992. He
testified that there is a withdrawal period when an
alcoholic stops drinking. The withdrawal period depends on
the person and how much the person drank, but “if you stop
using alcohol very quickly, your body can be, the brain is
overstimulated and you can develop some serious life-
16
threatening complications at that time.” Mr. Hnat also
testified:
Alcoholism is, you know, is a progressive
disease which ultimately is fatal and it’s fatal
in a number of different ways unless it’s
arrested but then it’s not fatal but the way that
alcoholics or people with addiction generally die
are associated with overdoses, accidents because
of the effect of the drug and the functioning of
the environment. More often than not it’s a very
slow and painful process as the body begins to
break down because of the toxic effects of the
chemical, so in the case of alcoholics, the
process of dying usually involves the development
of some very painful medical complications such
as pancreatitis or hepatitis or cirrhosis.[10]
He further explained that alcoholism “continues to capture
more of the brain’s functions so that the person is, you
know, the brain, it becomes more and more focused on
getting and using the drug.”
Unlike the majority, I do not find this testimony
“utterly lacking in scientific support.” Ante at 19. In
short, Mr. Hnat’s testimony was that plaintiff was an
alcoholic. Stress related to the sexual harassment she
suffered while employed by defendant caused plaintiff to
start drinking again and suffer from depression, which also
exacerbated her drinking.11 As an alcoholic suffering from
10
Medical records listed various medical conditions
suffered by plaintiff, including chronic pancreatitis.
11
Plaintiff testified:
(continued…)
17
depression, plaintiff may die from a disease common to
alcoholics. Mr. Hnat testified that “for the person who
has alcoholism, that kind of stress [from sexual
harassment] produces an additional risk not only of
emotional distress but of triggering a process of
compulsive drug seeking. That the person will, they feel
bad, and that sort of natural connection of the brain is I
feel bad. I feel like drinking.” Medical records signed
by various medical professionals indicate that plaintiff
suffered “extreme stress in her work environment due to
sexual harassment.” I do not believe that the trial court
abused its discretion in admitting Mr. Hnat’s testimony.
(…continued)
It [the harassment] just got worse. And
being an alcoholic, sometimes that is the way we
cope with things is by going back to the bottle
and that is what I did.
* * *
I belief [sic] that the daily abuse that I
have been subjected to at work has hindered me
greatly in being able to remain sober.
In contrast, defense counsel suggested that
plaintiff’s depression was not the result of repeated
sexual harassment at work, but could have been the result
of having to depend on other people for transportation.
18
III. REMITTITUR
The jury found that plaintiff had been subjected to
sexual harassment in violation of the Michigan Civil Rights
Act, MCL 37.2101 et seq., and that defendant did not
adequately investigate and take prompt and appropriate
remedial action. The jury awarded $20 million for mental
anguish, physical pain and suffering, fright and shock,
denial of social pleasures and enjoyments, embarrassment,
humiliation, mortification, shame, anger, chagrin,
disappointment, worry, outrage, disability including the
loss or impairment of plaintiff’s psychological well-being,
and the increase in plaintiff’s disease of substance abuse
arising from an aggravation of a preexisting condition.
The jury also awarded $1 million in a trust fund for
plaintiff to use for future medical expenses; contrary to
the majority’s assertion, when the jury verdict was read,
the jury did not state that this amount was for future
earning capacity.
As stated, I believe that the jury’s verdict for the
plaintiff was amply supported by testimony offered at
trial. I also disagree with the majority’s statement that
“we cannot accept the argument that plaintiff’s was the
worst case of sexual harassment in the history of the
country that has resulted in a verdict.” Ante at 22.
19
Plaintiff does not have to prove that her case was the
worst case of sexual harassment in the history of the
country to support the verdict. However, the verdict must
be properly supported by the evidence and reviewed to
determine
[1] whether the verdict was the result of
improper methods, prejudice, passion, partiality,
sympathy, corruption, or mistake of law or fact;
[2] whether the verdict was within the limits of
what reasonable minds would deem just
compensation for the injury sustained; [3]
whether the amount actually awarded is comparable
to awards in similar cases within the state and
in other jurisdictions. [Palenkas v Beaumont
Hosp, 432 Mich 527, 532; 443 NW2d 354 (1989).]
On the basis of the evidence introduced at trial and
awards in other sexual harassment cases, as detailed by the
majority, I believe that the jury award in this case is too
great. See id. at 538-540; Precopio v Detroit, 415 Mich
457, 479; 330 NW2d 802 (1982). While defendant’s conduct
was reprehensible and plaintiff’s suffering indisputable, a
review of jury awards in other sexual harassment cases
indicates that the jury’s award in this case was
inappropriate. While a review of other awards cannot serve
as an exact indicator and circumstances may certainly
justify higher awards than those granted by other juries,
the disparity between this award and others involving a
single plaintiff indicates that it is not analogous.
20
I stress, however, that I do not believe the matter
should be remanded for remittitur on the basis of any
misconduct on the part of plaintiff’s counsel. The
excessively large verdict in plaintiff’s favor is
attributable solely to the conduct of defendant and defense
counsel.12 In an ironic exchange during the trial,
plaintiff’s counsel actually predicted the outcome of the
case after defense counsel requested a jury instruction
regarding plaintiff’s lack of mitigation. Defense counsel
stated that plaintiff was causing her own medical problems
and “could have ameliorated the later incidents [of sexual
harassment] which could have harmed her.” Plaintiff’s
12
In a telling exchange, an employee of the human
resources department attempted to dismiss plaintiff’s
complaints of sexual harassment.
Q. She did actually complain to you that she
had been the victim of harassment, didn’t she?
A. Complained no. It was more upon [sic] a
conversation.
* * *
A. Like a factfinding thing, like she wants
to know what she could do, what avenues she could
take, that sort of thing.
Q. So she was asking you for advice on what
she should do?
A. Yes.
21
counsel stated that defense counsel’s argument that
plaintiff is responsible for her damages
is going to pump up the damages in this case when
they start blaming [plaintiff]. So, I want the
record to reflect I am acceding to this on behalf
of my client because it is my firm belief that
this would increase the amount of damages that is
awarded to my client, rather than decrease them.
. . . And I just want to make a record. If we
get an astronomical verdict and the Defendant
comes back and asks for a remittur [sic], Judge,
I want the record to reflect that the Defendant
is requesting an instruction that I think would
have the effect of further angering the jury and
increasing the damages.
While I find plaintiff’s counsel’s prescience
impressive, the excessively high verdict cannot be allowed
to stand merely because plaintiff’s counsel made a record
of defense counsel’s woeful error in strategy. Therefore,
I would remand this matter to the trial court for
remittitur.
IV. CONCLUSION
Defendant’s trial strategy was to question, and
minimize, the harassment experienced by plaintiff and blame
plaintiff for not being more active in seeking to stop the
harassment. This strategy was chosen by defendant and
rejected by the jury. Conduct by plaintiff’s counsel that
is now classified as unacceptable was frequently not
objected to by defendant. I do not believe that this Court
22
should now step in to help defendant correct its errors in
judgment. Therefore, I respectfully dissent.
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
23