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Groom v. Knoll Construction9/22/2005
UNPUBLISHED
Before: Sawyer, P.J., and Talbot and Borrello, JJ.
Defendant Knoll Construction, Inc., appeals as of right from a jury verdict in favor of plaintiff. We affirm.
Plaintiff purchased a newly constructed condominium from defendant in July 2000 and moved into the residence in October 2000. Thereafter, plaintiff discovered that the roof leaked. Plaintiff brought suit against defendant and others alleging negligence, breach of express warranty, breach of implied warranty, and violation of the Michigan Consumer Protection Act, MCL 445.901 et seq., seeking to recover for property damage and for personal injury allegedly caused by mold and fungus growth resulting from the leak.
Defendant first argues that the trial court erred in admitting the testimony of plaintiff's experts. We disagree. The admissibility of expert testimony is in the trial court's discretion, and this Court will not reverse the trial court's decision to admit such testimony on appeal absent an abuse of that discretion. Mulholland v DEC Int'l Corp, 432 Mich 395, 402; 443 NW2d 340 (1989); Hamilton v Kuligowski, 261 Mich App 608, 610; 684 NW2d 366 (2004). An abuse of discretion will be found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. Franzel v Kerr Mfg Co, 234 Mich App 600, 620; 600 NW2d 66 (1999). "A court necessarily abuses its discretion if it 'admits evidence that is inadmissible as a matter of law.'" Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004) (citation omitted).
Plaintiff offered the testimony of David Lutkenhoff, a certified industrial hygienist who conducted an air quality assessment of plaintiff's residence, and Dr. Frederick DeTorres, the doctor that treated her for allergies and asthma. Defendant asserts that this testimony, which it characterizes as purporting to establish that exposure to mold causes adverse human health effects, was novel scientific evidence for which plaintiff failed to provide sufficient foundation. The record, however, dispels this notion. Lutkenhoff testified as to the amount of mold in plaintiff's residence, to which defendant affirmatively consented; Lutkenhoff mentioned only in passing that reference materials and literature in the industrial health industry indicated that certain symptoms might be indicative of the presence of mold. Both Lutkenhoff and plaintiff's counsel expressly disavowed that Lutkenhoff was testifying regarding any causal connection between exposure to mold and adverse health effects, and his testimony was admitted only as to his identification and measurement of mold in plaintiff's residence. Thus, even if this Court were to accept defendant's argument that testimony regarding adverse human health effects caused by exposure to mold was novel scientific evidence, there simply was no such testimony offered by Lutkenhoff. Accordingly, defendant's challenge to the admission of Lutkenhoff's testimony lacks merit.
DeTorres testified that plaintiff tested positive for allergy to mold and, therefore, that the presence of mold in her residence would exacerbate her symptoms. Defendant did not object to DeTorres' qualifications or methods and did not challenge the scientific reliability of allergy tests or the science underlying the practice of allergy and immunology. Contrary to defendant's characterization, DeTorres did not purport to testify regarding any general adverse effect of mold exposure on human health. Rather, he testified as plaintiff's treating allergist regarding the specific effect of exposure to mold on her. MCL 600.2955(2) requires that a "novel methodology or form of scien
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