Petition for Writ of Certiorari — Gilbert v. DaimlerChrysler Corp.

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Court,

FILED

041673 APR 28 200

No OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

LINDA GILBERT,

Petitioner,

DAIMLER CHRYSLER CORPORATION,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Michigan

PETITION FOR WRIT OF CERTIORARI

Mark R. BENDURE

Counsel of Record

BENDURE & THOMAS

645 GRISWOLD

Suite 4100

Detroit, MI 48226

(313) 961-1525

Counsel for Petitioner

Becker Gallagher Legal Publishing, Inc. 800.890.5001

QUESTION PRESENTED

WHETHER THE FOURTEENTH AMENDMENT’S

DUE PROCESS GUARANTEE OF AN IMPARTIAL

DECISION MAKER IS INFRINGED WHEN A

LITIGANT’S FATE IS RELEGATED TO STATE

SUPREME COURT JUSTICES WHO HAVE RECEIVED

AN ESTIMATED $3,000,000 IN CAMPAIGN BENEFITS

FROM AN AMICUS WHICH SUPPORTS ITS MEMBER,

PETITIONER’S ADVERSARY, AND WHERE THOSE

JUSTICES HAVE PUBLICLY VILIFIED PETITIONER’S

COUNSEL AND PREDICATED THEIR CAMPAIGN ON

CRITICISM OF PETITIONER’S COUNSEL, WHO WAS

NOT THEN A CANDIDATE FOR PUBLIC OFFICE.

PARTIES TO PROCEEDINGS

Petitioner LINDA GILBERT' was the first female

journeyman millright to work at Chrysler Corporation’s

Jefferson North Assembly Plant. She was subjected to a

course of sexual harassment for which she sought recovery

under Michigan’s Elliott-Larsen Civil Rights Act, M.C.L.

37.2102, et. seq. Following an extended trial, she received

a substantial verdict which was upheld by the trial court

[166a-213a] and affirmed by the Michigan Court of Appeals

[93a-165a].

Throughout proceedings in the Michigan State courts,

Petitioner was represented-by Geoffrey Fieger, Esq. Mr.

Fieger had attained considerable notoriety and was the

Michigan Democratic Party’s nominee for Governor in the

1998 election, when he was defeated by John Engler, the

incumbent Republican nominee. Mr. Fieger and his firm

have an economic interest in the outcome of this Petition.

Respondent DAIMLER CHRYSLER CORPORATION is

the corporate successor to Chrysler Corporation, Ms.

Gilbert’s employer. Respondent is a member of the Michigan

Chamber of Commerce, which reportedly contributed about

' Following the Michigan Supreme Court decision, and while

a Motion for Rehearing was pending, Ms. Gilbert died of a heart

attack. The Court was notified of her death, but no formal

substitution of parties was effectuated. If certiorari is granted,

Petitioner will seek to substitute the Personal Representative of her

Estate as the named Petitioner.

$3,000,000 toward the successful 2000 election campaigns of

three Michigan Supreme Court Justices: Hon. Robert Young,

Hon. Clifford Taylor, and Hon. Steven Markman. All three.

were initially appointed to judgeships by Gov. Engler, were

nominated by the Republican Party for the 2000 election,

were beneficiaries of a television ad devised by the Chamber

of Commerce’s counsel, and conducted their campaign by

expressly attacking Mr. Fieger.”

After denying the recusal motion which is the focus of this

Petition, the Michigan Supreme Court, in a 4 to 3 decision,

reversed the verdict and awarded Daimler Chrysler a new

trial. The four Justices in the majority had been the subject

of the recusal motion.’ The three Justices whose recusal was

not sought dissented from the new trial grant.‘

*Mr. Fieger was not a candidate for election in 2000.

*The fourth Justice, Hon. Maura Corrigan, was also an Engler

appointee, and had previously filed a Request for Investigation with

the Michigan attorney discipline officials seeking an investigation

of Mr. Fieger which could lead to his disbarment.

*The remaining Justices would have granted remittitur but not

a new trial.

CORPORATE DISCLOSURE STATEMENT

Petitioner LINDA GILBERT, makes the following disclosure:

1. Is said party a subsidiary or affiliate of a

publicly owned corporation?

2. Is there a publicly owned corporation, not a

party to the appeal, that has a financial interest

in the outcome?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................

PARTIES TO THE PROCEEDINGS ............ ii

CORPORATE DISCLOSURE STATEMENT ....... iv

TABLE OF AUTHORITIES .................. ix

OPINIONS AND ORDER BELOW .............

SUPREME COURT JURISDICTION ............ 2

CONSTITUTIONAL PROVISIONS INVOLVED .... 3

STATEMENT OF THECASE ................ 3

THE REASONS WHY CERTIORARI

SHOULD BEGRANTED .................... 14

5. CURIE 8a kee Lis eee 14

2. The Question Whether The Due Process Clause

Permits Decision By One Who Has Obtained A

Multi-Million Dollar Campaign Benefit From A

Participating Amicus, Whose Member Is A

Litigant, Is A Substantial Issue ............ 16

3. The Question Whether Due Process

Guarantees Are Offended By The Participation

Of State Justices Who Have Publicly Vilified

Petitioner’s Counsel, And Have Founded Their

Campaigns For Office On Criticisms Of

Petitioner's Counsel, Is A Substantial One .. . . 20

COMIN ows cc ewecnt 00e8bernte eee 27

Appendix

Appendix A - Michigan Supreme Court

Order Denying Motion for Rehearing ........ la-2a

Appendix B - Michigan Supreme Court

Opinion Granting New Trial ............. 3a-69a

Appendix C - Michigan Supreme Court

Order Denying Reconsideration of

Recusal/Evidentiary Hearing ............ 70a-77a

Appendix D - Michigan Supreme Court

Order Denying Petitioner’s Motion for

Recusal or Evidentiary Hearing .......... 78a-90a

Appendix E - Michigan Supreme Court

Order Granting Motion of Chamber of

Commerce, Granting Leave to Appeal ..... 91a-92a

Appendix F - Michigan Court of Appeals

to Peet ee ee en 93a-165a

Appendix G - Trial Court Opinion Denying

Daimler Chrysler’s Post-Trial Motions ... 166a-213a

——e —itst—s

Vii

Appendix H - Affidavit of Geoffrey N.

Pe stuns ees babes a ede ae awe 214a-224a

Appendix I - Exhibits to Motion for Recusal ... 225a

Exhibit B - Transcript Excerpt of John

Ss: 0 60d baeneek eeeeeeens 225a-262a

Exhibit C - Request for Investigation -

GE. wo ue's 6453 aedwseexaes 263a-268a

Exhibit D - Dismissal - Request for

PD 6< Uci wae wes wewenes 269a-27 1a

Exhibit E - National Law Journal

rr rier re er er ey ee 272a-275a

Exhibit H - Transcript - Chamber of

EN 0 os ecu os tw ao 276a-277a

Exhibit I - Campaign Statement - )

ET Ce ee eee ee Ee 277a-288a

Exhibit J - Speech- Young ........ 288a-289a

Exhibi: K - Speech - Taylor ............ 289a

Exhibit M - Transcript - Campaign ad,

Markman, Taylor, Young ......... 290a-292a

Exhibit N - Campaign Advertisement .. 292a-294a

Exhibit O - Campaign Advertisement .. 294a-297a

viii

Exhibit P - Campaign Advertisement .. 297a-300a

Exhibit Q - Press Release ......... 300a-302a

Exhibit R - Victory Line .......... 302a-307a

Exhibit S - Letter to Editor ........ 307a-313a

Exhibit T - Newspaper Article ...... 313a-316a

Exhibit U - Newspaper Article ...... 316a-318a

Appendix J - Opinion and Order -

U.S. District Court, Gilbert, et al. v.

A ou eand oo Sk Re a ee 319a-34la

Appendix K - Sixth Circuit Court of Appeals,

Gilbert, et al. v. Ferry, etal. ......... 342a-354a

TABLE OF AUTHORITIES

Cases Page(s)

Aetna Life Ins. Co. v. Lavoie,

475 U.S. 813, 820-822 (1986) ............... 16

Cain v. Dept. of Corrections,

541 Mich. 470, 477, fn. 12; 548 N.W.2d 21 (1996) 6

City of Las Vegas Downtown Development Agency v.

Eighth Judicial District Court,

116 Nev. 460; 5 P.3d 1059 (2000) ............ 17

Crampton v. Dept. of State,

395 Mich. 347, 351; 235 N.W.2d 352 (1975) ..... 24

Ex Parte Bryant, 675 So.2d 552

es Sa ES BD nak o we do ea es 17

Gilbert v. Daimler Chrysler Corp.,

469 Mich. 883; 670 N.W.2d 560 (2003) ...... ee

Gilbert v. Daimler Chrysler Corp.,

470 Mich. 749; 685 N.W.2d 391 (2004) ........ 2

Gilbert v. Daimler Chrysler Corp.,

472 Mich. 1201; 691 N.W.2d 436 (2005) ....... io

Gilbert, et. al. v. Ferry, et. al.,

ee er ere eee 13

Cases Page(s)

Hobbins v. Attorney General,

205 Mich. App. 194; 518 N.W.2d 478 (1994) .. 5, 10

In re Chmura,

461 Mich. 517; 608 N.W.2d 31 (2000) ......... 6

In re Mississippi Code of Judicial Conduct,

RD daa gk doa bs ae wa ek ae 17

Johnson v. Mississippi,

gg Fe es) rr a re ee 15, 24

Kentucky Journal Publishing Co. v. Gaines,

139 Ky. 747; 110 S.W. 268 (1908) .......... 23

Loyd v. Georgia,

Ge. DURNOIED 64. 640 64 04K OR 22

Mayberry v. Pennsylvania,

oe Ms | a ee earn to. 15

Palenkas v. Beaumont Hospital, 432 Mich. 527;

GD Fe. Wr ce OCI 6 ok ke vbw civesaenar 8

People v. Lowenstein,

118 Mich. App. 475, 482-483;

ee eee ee ee CE bo 8 eee ee 14

Pierce v. Pierce,

39 P.3d Ton CRE, BD | 6 ok eee ae 17

Cases Page(s)

Ponder v. Davis,

233 N.C. 699; 65 S.E.2d 356 (1951) .......... 23

Public Utilities Commission of D.C. vs. Pollak,

343 U.S. 451, 466;

2 5S. Ce. B13; 96 L.Ed. 1068 (1952) 2... tk 21

Reems v. St. Joseph Hospital,

536 N.W.2d 666 (N.Dak. 1995) ............. 18

Rogers v. Bradley,

Pa ere re CeO, SOO. oot week LSS. 18

State v. Garner,

760 S.W.2d 893, 906 (Mo. App. 1988) ......... 26

Stephen v. Natchez,

261 So.2d 486, 489 (Miss. 1972) ............. 23

Talbert v. Muskegon Construction Co,

305 Mich. 345, 348; 9 N.W.2d 572 (1943) ...... i4

Tower Group, Inc. v. Doral Enterprises,

760 So.2d 256 (Fla. App. 2000) ............. 23

Town Centre of Islamorada, Inc. v. Overby,

592 S.2d 774 (Fla. App. 1992)

Ward v. Monroeville,

ee a rn kk ek Wee a ee

Xil

Cases Page(s)

Withrow v. Larkin,

ee Re eS Pe, Sr rrr 15

Statutes, Court Rules and other Authorities

Due Process Clause, Fourteenth

I sd oh er sg 3, 13, 14, 16, Zi, 27

Bourteenth Amendment,$1 ........02.2 2400s 3

RR i OE Sac Koa 8 koe ds Ae Oe ae y

Pe i TE 5 oh A Re ee 2

ee PE cares hee ee he

OPINIONS AND ORDERS BELOW

Following the trial, the trial judge denied Respondent’s

motions seeking post-trial relief [166a-213a]. That Opinion

is unpublished.

On July 30, 2002, the Michigan Court of Appeals issued

its unanimous Opinion affirming [93a-165a]. That Opinion

(2002 Mich App LEXIS 1168) is not published in the official

Michigan Appeals Reports or Northwest 2d volumes. The

Court of Appeals Order denying Respondent’s Motion for

Rehearing is also unpublished.

On April 8, 2003, the Michigan Supreme Court granted

Respondent’s Application for Leave to Appeal and the

Motions of the Michigan and national Chambers of Commerce

for leave to participate as Amici Curiae. That Order is

published as Gilbert v. Daimler Chrysler Corp., 468 Mich.

883; 661 N.W.2d 232 (2003) (91a-92a).

Petitioner then filed a Motion seeking the recusal of

Justices Young, Markman, Taylor and Corrigan, or an

evidentiary hearing. The Court denied both recusal and an

evidentiary hearing, Gilbert v. Daimler Chrysler Corp., 469

Mich. 883; 669 N.W.2d 265 (2003) (78a-90a). The Court

also denied Petitioner’s Motion for Rehearing, Gilbert v.

Daimler Chrysler Corp., 469 Mich. 889; 670 N.W.2d 560

(2003) (70a-77a).

° The Chambers had not participated in the case until it reached

the Michigan Supreme Court.

The Michigan Supreme Court decision of the appeal is

reported as Gilbert v. Daimler Chrysler Corp., 470 Mich.

749; 685 N.W.2d 391 (2004) (3a-69a). Its denial of rehearing

is reported as Gilbert v. Daimler Chrysler Corp., 472 Mich.

1201; 691 N.W.2d 436 (2005) (1a-2a).

SUPREME COURT JURISDICTION

The published decision of the Michigan Supreme Court

was issued on July 22, 2004. Petitioner sought rehearing

within the applicable 21 day period of M.C.R. 7.313(D). The

Court docketed the Motion for Rehearing and issued its Order

denying the Motion for Rehearing on January 28, 2005.

Petitioner invokes the certiorari jurisdiction conferred on this

Court by 28 U.S.C. § 1257(a), which provides:

“Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court by writ of

certiorari where the validity of a treaty or statute of

the United States is drawn in question or where the

validity of a statute of any State is drawn in question

on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States, or

where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution or

the treaties or statutes of, or any commission held or

authority exercised under, the United States.”

This Petition, filed within 90 days of the Michigan

Supreme Court Order denying rehearing, is timely under this

Court’s Rule 13.3.

CONSTITUTIONAL PROVISION INVOLVED

Petitioner’s central argument is that the participation of

Justices who have been the beneficiaries of about $3,000,000

in Campaign contributions from its adversary’s Amicus, and

who have publicly vilified Petitioner’s counsel, violates the

right to an impartial tribunal under the Fourteenth

Amendment to the Constitution of the United States. In

pertinent part, that Amendment provides:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law: nor deny to any person

within its jurisdiction the equal protection of the

laws.”

[Fourteenth Amendment, § 1]

STATEMENT OF THE CASE

The Underlying Suit

This Petition focuses on the participation of Justices of the

Michigan Supreme Court who were financially beholden to

the Chamber of Commerce, an organization to which

Respondent belongs, and which the Court allowed to

participate as Amicus Curiae on behalf of Respondent. As the

underlying suit is peripheral to that issue, the background of

that case can be briefly summarized.

Ms. Gilbert, the first female millright, was subjected to a

host of indignities which, she alleged, constituted a hostile

work environment on the basis of her gender. These included

lewd “cartoons” and “poems”, a photograph of a penis,

references by a male worker to his “big meat”, vulgarities,

urination on her chair, and other misconduct recounted at

length in the Michigan Court of Appeals Opinion (94a-1 16a).

Proceedings Prior To The Chamber Of

Commerce Involvement

After an extended trial, the jury returned a $21,000,000

verdict for Petitioner. The trial court denied Respondent’s

post-trial motions (166a-213a). In turn, the Michigan Court

of Appeals unanimously affirmed (93a-165a). Consequently,

prior to the involvement of the Chambers of Commerce, all

judges and jurors concluded that Petitioner was entitled to

recover. :

The Background Facts Regarding Petitioner’s

Counsel And Michigan Supreme Court Justices

Taylor, Markman, Young And Corrigan

In the early 1990’s, Geoffrey Fieger, the trial attorney for

Linda Gilbert in this case, represented Dr. Jack Kevorkian.

Dr. Kevorkian was an outspoken advocate, and practitioner,

of physician-assisted suicide. His views and activities were

the focus of considerable controversy and media attention.

John Engler, who was then Michigan’s Governor, was an

opponent of Dr. Kevorkian and his views. In March of 1992,

Governor Engler appointed to the Court of Appeals Hon.

Clifford Taylor and Hon. Maura Corrigan (193 Mich App vi,

EEE

vii). Both later became members of the Michigan Supreme

Court to which this case of Linda Gilbert was presented.

Less than one year later, in February of 1993, Governor

Engler signed legislation aimed at outlawing the physician-

assisted suicide activities of Dr. Kevorkian. Ona radio show

that month, Governor Engler advocated the disbarment of Mr.

Fieger to curtail the activities of Dr. Kevorkian (Ex. A,’

audiotape; Ex. B, transcript of audiotape) (234a). In response

to a caller’s question about what would stop Dr. Kevorkian,

Governor Engler publicly stated:

“We probably could stop him if his lawyer were

disbarred.”

The legislation referred to on that occasion came before

the Michigan Court of Appeals in Hobbins v. Attorney

General, 205 Mich. App. 194; 518 N.W.2d 487 (1994).

Judges Taylor and Fitzgerald of the Court of Appeals sat on

the panel with visiting Judge Shelton. Mr. Fieger represented

Dr. Kevorkian in the Hobbins case. In pertinent part, over

the dissent of Judge Shelton, Judges Taylor and Fitzgerald

voted to uphold the constitutionality of the statute. Mr.

® Governor Engler would later appoint Justice Taylor to the

Michigan Supreme Court in the fall of 1997 (456 Mich ccxxxiv -

CCXXXVili).

’ Alphabetic Exhibit designations refer to Exhibits filed with

and in support of the Motion for Recusal. All are part of the

record in the Michigan Supreme Court, and some have been

separately reproduced as part of the Appendix filed with this

Petition.

Fieger responded with public comments highly critical of

Judge (now Justice) Taylor and Judge Fitzgerald.

The following year, 1995, Governor Engler appointed

Hon. Steven Markman (208 Mich App xiv) and Hon. Robert”

Young (213 Mich App at vii) to the Court of Appeals. Both

have since become members of the Michigan Supreme Court.

In short, by 1995, four of the members of the Michigan

Supreme Court had been appointed to appellate judgeships by

a Governor who had publicly advocated the disbarment of Mr.

Fieger as a means to curtail the activities of Dr. Kevorkian.

In 1996, Judge (now Justice) Corrigan initiated a filing

that could have led to the disbarment of Plaintiff's counsel

which Governor Engler had suggested the year before.

Reacting to a statement critical of her by Mr. Fieger, Justice

Corrigan filed, on government stationary, a Request for

Investigation (Ex. C) (263a-268a).° That Request has since

* In 1993, Governor Engler, who had appointed Judge Corrigan,

publicly referred to another Judge as a “lunatic” who “I think he got

his law degree from a mail-order school” [Cain v. Dept. of

Corrections, 451 Mich. 470, 477, fn. 12; 548 N.W.2d 210 (1996)].

According to the Michigan Supreme Court decision, it was that Judge,

not Judge Corrigan, who brought the Governor’s statement to the

attention of the Attorney Grievance Commission (451 Mich. at 477-

478). That Commission had dismissed the Request involving

Governor Engler more than two years before Judge Corrigan

complained of Mr. Fieger (451 Mich. at 479).

Justice Corrigan later authored the Opinion for the Court in Jn re

Chmura, 461 Mich. 517; 608 N.W.2d 31(2000). In Chmura, the

Court recognized the First Amendment protections afforded public

comments challenged as false or misleading (461 Mich. 529-544).

been dismissed by the Attorney Grievance Commission (Ex.

D) (269a-27 1a). :

In 1998, Mr. Fieger received the nomination of the

Democratic Party to run for the gubernatorial office held by

Governor Engler, who was re-nominated by the Republican

Party. During this time (and for some time before) Lucille

Taylor, the wife of Justice Taylor, served as counsel to

Governor Engler.

The 1998 campaign featured acrimonious insults between

Mr. Fieger and Governor Engler. When the dust settled,

Governor Engler was re-elected by a wide margin. Mr.

Fieger has never run for public office before or since the 1998

gubernatorial campaign.

This case of Linda Gilbert had been filed in 1994. It came

for trial in the summer of 1999. At the trial, Ms. Gilbert was

represented by Mr. Fieger. Neither the United States nor

Michigan Chamber of Commerce participated, or sought to

participate. After a lengthy trial, the jury returned a

substantial verdict for Ms. Gilbert which received

considerable media attention. On May 1, 2000, the trial court

denied Respondent’s post-trial motions. Shortly afterward,

Respondent appealed of right to the Michigan Court of

Appeals.

With this state of affairs, Justices Taylor, Markman and

Young ran for re-election in 2000. The Michigan Chamber

of Commerce, which was later granted leave to participate

and filed an Amicus Curiae Brief on behalf of its member,

Respondent Daimler Chrysler, reportedly provided over

$3,000,000 in financial support to the candidacies of these

Justices [National Law Journal, 10/28/02, p. A9 (Ex.

E)(274a)].” A successful “dancing tree” ad is credited to Mr.

LaBlant, the Michigan Chamber’s general counsel and the

author of its Amicus Brief opposing Petitioner in the Michigan

Supreme Court (/d). Among the ads for Justices Taylor,

Markman and Young paid for by the Michigan Chamber was

one which mentioned Mr. Fieger by name, and claimed that

he was proud of an ad which, the Chamber claimed, mis-

characterized rulings (Ex. F).

Mr. Fieger was not a candidate for office in 2000.

Nonetheless, the Justices and their campaign supporters

publicly implied and announced opposition to Mr. Fieger

personally, depicting him as the enemy.

Justice Markman campaigned on the platform that he was

personally an opponent of aitorneys like Mr. Fieger who

represented plaintiffs in medical malpractice cases."° In a

public statement to a medical group (Ex. 1)(277a-288a),

Justice Markman referred to attorneys like Mr. Fieger (“the

people who quite frankly make a livelihood by suing you”) as |

* Part of the $3,000,000 was a Chamber of Commerce ad

{audiotape, Ex. G; transcript, Ex. H (276a-277a)] which castigated

Democratic candidate Judge Edward Thomas for accepting

substantial contributions from attorneys. In its own words, the

Chamber voiced the view that election of a Justice who accepts

“special interest money” of significant magnitude from those “who

could appear before him” would be “bad for Michigan”.

'° The fact that Mr. Fieger represents plaintiffs in malpractice

cases has been a matter of public record long before the 2000

campaign. See e.g. Palenkas v. Beaumont Hospital, 432 Mich.

527; 443 N.W.2d 354 (1989). .

— LS Um

the opponents himself and his fellow Republican nominees

(“our opponents”).

Justice Young was even more unabashed about

characterizing the relationship with Mr. Fieger as one which

he regards as hateful, “Geoffrey Fieger and his trial lawyer

cohorts hate this court” (Ex. J) (289a).'' Nor does Justice

Young regret the relationship he believes to be grounded in

hate. On the contrary, his avowed position is that, “There’s

honor in that” (/d).

Justice Taylor also personalized the campaign, referring

to this case and others in which Mr. Fieger had obtained

substantial verdicts for his clients. It is reported (Ex.

K)(290a) that Justice Taylor, at a fund-raiser, noted,

“Geoffrey Fieger currently has $90 million of lawsuit awards

pending in the State Court of Appeals.”

The three Justices also attacked Mr. Fieger personally in

a radio advertisement (audio tape, Ex. L; transcript, Ex.

M)(290a-291a) in which they implied that Petitioner’s counsel

supported the opposing candidates because of Mr. Fieger’s

attraction to vicious, false, degrading attacks on them. They

characterized the ads of the Democratic nominees as

“vicious”, “false”, “seedy”, a “smear campaign” and

“degrading the Court and the public confidence in Michigan's

judiciary”, then insinuated that Mr. Fieger (who had nothing

'' There is some ambiguity in Justice Young’s reference to

“this court”. In context, he seemingly did not believe that

Petitioner’s counsel hated the Supreme Court as an institution, but

instead believed that the hate was directed at the Justices as

individuals, particularly the members who comprised the

Republican majority.

to do with the ads in issue) supported their opponents for that

very reason, “Some people will do anything to get elected.

No wonder Geoffrey Fieger, Jesse Jackson [and others

support the Democratic candidates]”. The voices of Justices

Young, Markman and Taylor themselves can be heard at the

end of that advertisement.

Another instance of the “anti-Fieger” tone of the 2000

campaign of Justices Young, Markman and Taylor is the

“He’s back . . .” flyer distributed on behalf of these Justices

(Ex. N) (293a-294a). The campaign literature features Mr.

Fieger’s face, characterizes the opposing candidates as

“FIEGER’s FRIENDS” and “the Fieger team”, and asserts

that, “Geoffrey Fieger [and others are] trying to take over

Michigan’s Supreme Court”.

Another piece of campaign literature distributed on behalf

of Justices Taylor, Markman and Young was entitled, “Our

police make critical judgements each day” (Ex. O) (294a-

297a). That literature criticized the opposing candidates as

“Geoffrey Fieger’s friends.”

Yet another piece of literature (Ex. P) (297a-300a)

characterized Judge Fitzgerald (who Mr. Fieger had stridently

criticized over the Hobbins decision), the Democratic

candidate, as a “Geoffrey Fieger libera[l].” The literature

was entitled, “Forever isn’t long enough for a child

molester”, implying that Mr. Fieger supported the sexual

abuse of children.

A significant feature of the 2000 campaign for Justices

Young, Taylor and Markman was to depict Mr. Fieger as a

person who had acquired wealth by bringing lawsuits that

were without substantive merit. In addition to Justice

TTF

Markman’s (“people who . . . make a livelihood by suing

you”) reference and the (“Geoffrey Fieger . . . $90 million of

lawsuit awards”) comment of Justice Taylor, a March 3, 2000

press release criticizing Ms. Robinson (a Democratic

nominee) identified her as favored by “a multi-millionaire

trial lawyer” who, if elected, would allow “trial lawyers like

Geoff Fieger [to] keep getting richer while Michigan families

keep footing the bill” (Ex. Q) (301a). The “Victory Line”

publication (Ex. R)(302a-306a), which promoted the

candidacy of Justices Young, Taylor and Markman, attacked

Petitioner’s counsel by name and accused Mr. Fieger of using

“specious legal reasons” to foster litigation which was

primarily without merit (“most of which is frivolous,

excessive and very expensive for taxpayers”).

These campaign statements have sparked comment in the

legal media by the former President of the State Bar of

Michigan (Ex. S) (307a-312a). They have also been the

subject of comment in the popular media (Ex. T) (313a-316a).

The statements discussed above by and on behalf of

Justices Young, Markman and Taylor accomplished their

goal. All three were elected in 2000.

On July 30, 2002, the Michigan Court of Appeals

affirmed the Judgment for Ms. Gilbert in this action. On

September 12, 2002, the Court denied Daimler Chrysler’s

Motion for Rehearing. The Michigan Chamber of Commerce

did not participate in Court of Appeals proceedings.

Respondent Daimler Chrysler filed its Application for

Leave to Appeal. As Exhibits to its Application, which

castigated Mr. Fieger and characterized the case as

substantively meritless, Respondent provided a newspaper

article regarding Mr. Fieger’s 1998 gubernatorial campaign

(Ex. J to Application) and a political website critical of

Governor Engler (Ex. K to Application).

In the fall of 2002, the United States and Michigan

Chambers of Commerce entered the case when it reached the

Michigan Supreme Court. Both asked the Court to rule in

favor of their member, Daimler Chrysler.

At about the same time, Justice Young was running for re-

election. The Michigan Chamber of Commerce financed a

television campaign endorsing Justice Young (Ex. U). On

April 8, 2003, the Court issued an Order granting what the

Michigan Chamber of Commerce requested: leave to

participate as Amicus Curiae, and leave to appeal to its

member, Defendant Daimler Chrysier.

Recusal Proceedings In The State Court

Once the case was before the Michigan Supreme Court,

Petitioner filed her Motion for Recusal and for Evidentiary

Hearing,'’? presenting the constitutional questions now

featured in this Petition. Together with the Exhibit materials

discussed above, Petitioner filed the Affidavit of Mr. Fieger

(215a-224a).

The recusal motion was denied without explanat'on and

without an evidentiary hearing. Gilbert v. Daimler Chrysler

'? The initial Motion also sought the recusal of Justice Weaver,

the recipient of Chamber of Commerce support in the 2002

election. When Justice Weaver explained her decision (unlike the

others in issue), Petitioner did not seek rehearing as to her.

Corp., 469 Mich. 883; 669 N.W.2d 265 (2003). Justice

Weaver explained why she did not think that her recusal was

required (/d.). Petitioner sought rehearing as to Justices

Young, Markman, Taylor and Corrigan, and that Motion was

likewise denied without comment or opinion except by Justice

Weaver. Gilbert v. Daimler Chrysler Corp., 469 Mich 889;

670 N.W.2d 560 (2003).

Related Federal Proceedings

While the recusal motion was pending before the

Michigan Supreme Court, Petitioner and Fieger filed suit in

the United States District Court for the Eastern District of

Michigan (Gilbert, et. al. v. Ferry, et al, No. 03-60185). In

essence, invoking their Fourteenth Amendment rights, they

sought declaratory and injunctive relief on the basis that their

cases would not be impartially heard by Michigan Supreme

Court Justices Markman, Taylor, Young or Corrigan because

of their bias toward Fieger and his clients. Ultimately, the

federal district court judge declined to provide a federal forum

(319a-341a), and the Sixth Circuit Court of Appeals has

recently affirmed F.3d _(6" Cir. 2005) (342a-354a).

The Michigan Supreme Court Decision

By Opinion and denial of rehearing, Justices Young,

Taylor, Markman and Corrigan, the very Justices whose

recusal was sought, voted to provide Respondent with a new

trial. Except for those four, no other Judge, Justice or juror

would provide that relief to Respondent. Since the four

comprised a majority of the seven Justice Michigan Supreme

Court, the verdict for Petitioner was abrogated.

These facts frame the central issue presented. Petitioner

submits that the Court should consider whether the Due

Process Clause of the Fourteenth Amendment is offended by

State procedures by which her fate is relegated to decision-

makers with an intense pronounced public dislike for her

counsel, and who are the recipients of a $3,000,000 campaign

benefit from an Amicus favoring its member, Petitioner’s

litigation adversary.

THE REASONS WHY CERTIORARI

SHOULD BE GRANTED

1. Overview

It is commonly said that ours is a system of law, not of

men or women. That ideal reflects the profound truth that the

most fundamental feature of American justice is that it is

administered by those having no interest, or apparent interest,

in the outcome. Talbert v. Muskegon Construction Co, 305

Mich. 345, 348; 9 N.W.2d 572 (1943).

An impartial judiciary is of obvious importance to the

litigants and attorneys whose cases are adjudicated. This

interest is recognized by the core precept of constitutional law

that the Due Process Clause guarantees an impartial decision-

maker. People v. Lowenstein, 118 Mich. App. 475, 482-483;

325 N.W.2d 462 (1982) (“The right to a fair tribunal is a

' “One of the fundamental rights of a litigant under

our judicial system is that he shall be entitled to a

hearing before a court to which no taint of

prejudice is attached. This is so firmly established

as to regularly constituted courts as to need no

comment.”

right grounded in due process”). This Court’s decisions have

repeatedly embraced that truism. See e.g. Withrow v.

Larkin, 421 U.S. 35, 46-47 (1975); Mayberry v.

Pennsylvania, 400 U.S. 455 (1971); Ward v. Monroeville,

408 U.S. 57 (1972); Johnson v. Mississippi, 463 U.S. 212

(1971).

This case is truly extraordinary. While electoral politics

inevitably result in campaign contributions, the sheer amount

paid by the Chamber of Commerce for these Justices who

favored their member, Daimler Chrysler, is eye-popping. If

$3,000,000 in payments is not cause for recusal, one may

wonder whether justice is truly for sale in America.

Similarly, the degree of animosity publicly directed at

Petitioner’s counsel by the Justices who decided Petitioner’s

case is seemingly unprecedented. Ifa Justice who revels ina

relationship of hatred toward counsel is deemed “impartial”,

or if a Justice who seeks to have counsel disbarred is

“unbiased”, then the constitutional guarantee is rendered

hollow indeed.

Without certiorari review, the ability of State Supreme

Court Justices to vent their political spleens is literally

unbridled and unreviewed. There are no other State Court

Judges to provide review. The federal courts will not

entertain a suit to vindicate federal rights (319a-341a, 342a-

354a), essentially on the ground that review should be sought

by certiorari. Absent review by this Court, there is no forum

at all to protect the important Constitutional right here at

stake.

In short, this case presents timely and extraordinarily

important questions that strike to the heart of American justice

and public confidence in the judiciary. Those questions

warrant certiorari.

2. The Question Whether The Due Process Clause

Permits Decision By One Who Has Obtained A

Multi-Million Dollar Campaign Benefit From A

Participating Amicus, Whose Member Is A

Litigant, Is A Substantial Issue

While many issues of recusal are purely matters of state

law, the Due Process Clause at least provides protection in

extreme cases. See e.g., Aetna Life Ins. Co. v. Lavoie, 475

U.S. 813, 820-822 (1986). Here, the participation of Justices

who have received such largesse from an iuterested party or

its Amicus organization is so out of line with norms of

propriety as to raise a significant constitutional issue.

In JI-65 (2/25/93), the State Bar of Michigan Standing

Committee on Professional and Judicial Ethics recognized the

recusal implications of undue involvement with a Chamber of

Commerce. Concluding that a judge could not properly

participate in a Chamber political action committee, the

Committee noted:

“The judge . . . would incur the appearance of being

pre-disposed in favor of pro-business interests or

members of the Chamber of Commerce and would

face recusal in legal proceeding involving such

interests.”

More remarkable still is the astounding size of the

Chamber payment. JI-2 (1/28/89) notes with approval an

article discussing the implications of an extraordinarily large

contribution from a single source:

ita oral,

“In Terrance J. Brook’s article, Campaigning for

Judicial Office: An Overview of the Ethical

Constraints, he points out a New York ethics opinion

(Opinion No. 289, 1973), which states that a judicial

campaign committee should not accept an amount

from a single source, other than the candidate or

his/her family, which is so large as to foster an

appearance that the donor is seeking favored

treatment. The contribution of a large sum might be

misinterpreted as improperly intended, even if that is

not the case, and although there is nothing unethical in

a contribution of that size in and of itself. Implicit in

such a contribution is the possibility that the donor is

hoping to improve his or her or its reception in the

courtroom.”

Judges and commentators have grappled with the tension

between the need for campaign contributions and the need to

assure the public that judicial rulings are not for sale. In

general, the prevailing view is that campaign contributions are

relevant to the disqualification calculus, do not necessarily

lead to recusal, but may require recusal where the amount is

extraordinary. See Ex Parte Bryant, 675 So.2d 552 (Ala.

Crim. App. 1996) (under Alabama law, “a campaign

contribution to a circuit judge in excess of $2,000 will

presumptively bias a circuit judge in the mind of the public”);

In re Mississippi Code of Judicial Conduct, Canon 3 (E)(2)

(that an attorney is a “major donor” is a recognized basis for

a disqualification motion, but disqualification is not

automatic); City of Las Vegas Downtown Development Agency

v. Eighth Judicial District Court, 116 Nev. 640; 5 P.3d 1059

(2000) (campaign contributions of $2,000 or less are not so

large as to require disqualification); Pierce v. Pierce, 39 P.3d

791 (Alabama, 2000) (campaign contributions by counsel and

his father of $10,000, coupled with campaign efforts for the

judge, make recusal appropriate); Reems v. St. Joseph

Hospital, 536 N.W.2d 666 (N. Dak. 1995) [commentary to

North Dakota Canon 5(C)(2), “Though not prohibited,

campaign contributions of which a judge has_ knowledge,

made by lawyers or others who appear before the judge, may

be relevant to disqualification under Section 3, E”}.

A similar, but less compelling, case for recusal arose in

Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995), where the

political action committee of the Texas Medical Association

had produced a video, sympathetic to the plight of Dr.

Bradley, which endorsed Supreme Court candidates. Even

though the PAC did not participate in Supreme Court

proceedings (in contrast to the Chamber’s direct participation

in this case), one of the Justices endorsed by the PAC (Justice

Gammage) recused himself, while another (Justice Enoch)

declined todo so. Justice Gammage explained:

“T believe that (1) where a person or entity has sought

to engender support, financial or otherwise, for a

judicial candidate or group of candidates, and (2)

where that effort is made through a medium which is

intended to be widely circulated, and (3) where that

effort ties the success of the person’s or entity’s

chosen candidate or candidates to the probable result

in a pending or impending case, a judge should recuse

from participating in that case under Rule 18b (2)(a).

The rule does not require that the judge must have

engaged in any biased or prejudicial conduct. It does

require the judge to recuse if ‘his impartiality might

reasonably be questioned,’ regardless of the source or

circumstances giving rise to the question of

impartiality and even though the source and

circumstances may be beyond the judge’s volition or

control.

Because I believe a reasonable member of the public

at large, knowing all of the facts in public domain,

would doubt that the justices portrayed favorably in

the TEX-PAC video are actually impartial I recuse

myself from participation in all matters related to this

cause.”

Here, the economic benefit to the campaigns of Justices

Taylor, Young, and Markman from the Michigan Chamber

of Commerce vastly exceeds the amount of any other

contribution. The payments were made in the context of a

campaign which urged voters to elect Justices Markman,

Young and Taylor to oppose Mr. Fieger personally.

On the most benign level, those aspiring to be Supreme

Court Justices necessarily have a strong desire to attain that

office -- the campaign rigors and unkind criticisms they

undergo attest to that desire. Just as obviously, it is the most

basic human nature to be profoundly grateful to, and wish to

reciprocate the kindness of, an interested party whose massive

payments have enabled a Justice to attain his or her seat.

These fundamental human emotions cannot help but cause the

Justices in issue to look more favorably on a position

advocated by a seven-figure benefactor then one advocated by

a stranger.

The appearance of impropriety is borne out by the

outcome. Not a single judge involved in the case, other than

those whose recusal was sought, has ever opined that

Respondent should receive a new trial. The participation of

Justices who received campaign benefits from the Chamber

sends the unmistakable message that multi-million dollar

campaign contributions will be rewarded by the decisions of

Justices who benefit from them. It is grossly unseemly for

Justices Young, Taylor and Markman to rule as requested by

the Chamber, which had no interest in the case until it reached

the Supreme Court, after accepting the benefit of a multi-

million dollar political advertising campaign which the

Chamber waged publicly.

In brief, the Constitutional issue is substantial. It should

be reviewed by this Court.

3. The Question Whether Due Process Guarantees Are

Offended By The Participation Of State Justices

Who Have Publicly Vilified Petitioner’s Counsel,

And Have Founded Their Campaigns For Office

On Criticisms Of Petitioner’s Counsel, Is A |

Substantial One |

This case involves far more than the inevitable difference

in political views that may arise when a litigant is represented

by counsel of a political party different than that of a

Governor who appointed Judges or Justices. Rather, it

involves intense, regrettably personal, enmity. While the

mutual disrespect between Governor Engler and Mr. Fieger

does not inherently require the recusal of Judges or Justices

appointed by the former Governor, it does provide the

backdrop to animosity that far transcends simple, and civil,

political disagreements.

The clash goes back at least 10 years when the debate over

physician-assisted suicide became personalized by Governor

Engler’s advocacy of Mr. Fieger’s disbarment as a means of

preventing Dr. Kevorkian from activities deemed

ee |

objectionable. The two were direct adversaries in a

gubernatorial campaign that featured mean-spirited comments

far surpassing mere political disagreement.

Under any circumstances, a fair-minded person who owes

his or her judgeship to Governor Engler would be hard-

pressed to entirely set aside hostility when judging a case

brought by Mr. Fieger whose enmity with Governor Engler

has been so public and virulent. These are not the best of

circumstances, where the appointee has remained aloof from

the fray. Rather, in numerous respects, Justices Taylor,

Markman, Corrigan and Young have been personally drawn

into the controversy, expressing their own aversion or

hostility toward Ms. Gilbert’s attorney. Neither justice nor

its appearance is served by resigning Petitioner’s fate to

decision-makers who harbor that attitude toward her attorney.

Justice Young has publicly proclaimed his belief that

Petitioner’s counsel, Mr. Fieger, hates him. He has

expressed the “honor” he finds in a relationship characterized

by hate. Feelings toward Petitioner’s counsel as

overwhelming as “hate” (a word that similarly characterizes

Osama Bin Laden’s attitude about America, or the Ku Klux

Klan’s view of interracial dating, or the Saddam Hussein-

President Bush relationship) make it inappropriate for Justice

Young to sit in judgment of this case under the Fourteenth

Amendment standard.

Justice Frankfurter has observed, “Where there is ground

for believing that . . . unconscious feelings may operate in the

ultimate judgment, or may not unfairly lead others to believe

they are operating, judges recuse themselves . . .” Public

Utilities Commission of D.C. v. Pollak, 343 U.S. 451, 466;

72 S. Ct. 813; 96 L.Ed. 1068 (1952). Surely Petitioner can

only believe “not unfairly” that she cannot receive the totally

impartial consideration of a Justice who regards his

relationship with her attorney as hateful.

As noted in McCullough v Davis, 147 P 779 (Okla, 1915):

“The framers of our Constitution guarded with special

care our judiciary and tried to place it above suspicion

of unfairness, passion, or prejudice, so that public

confidence in our courts would not be shaken, and )

provided that right and justice should be administered |

without prejudice. By virtue of this constitutional |

provision, who can doubt or question the absolute and

unqualified right of the citizen, when called to answer

in a court of justice, to demand that his trial shall be

before an impartial judge and by impartial jurors?

Any other doctrine would place the rights of the

citizen which were intended to be protected by this

constitutional provision at the mercy or control of the

court or judge thereof.”

Perhaps even more troubling is that Justice Young has no

regret about that perceived animosity. Instead of lamenting

the perceived hatred, he seemingly delights in it, believing it

an “honor” to be hated. The unmistakable implication is that

Justice Young is delighted to reciprocate, publicly no less, the

hate which he believes is directed toward him by Mr. Fieger.

The potency of the emotion “hate” was discussed in Loyd

v. Georgia, 45 Ga. 57 (1872):

“Hatred is another one of the bad passions that |

spring from the corruption of the heart. It is

condemned by that great moral law which Infinite

Wisdom has prescribed for the conduct of man. To

hate our neighbor is a crime and a vice against the

moral law. But men will hate one another, and in

order to justify this basest of passions of the heart,

will concoct and carry out schemes of mischief that

result in death, and that bring sorrow and grief into

innocent households.”

In other cases, the challenged judge regarded counsel as

a party with animosity that was not expressed in terms as

strong as “hate”. Even so, recusal has been deemed

appropriate where a clear animosity between the judge and

counsel exists. See e.g. Town Centre of Islamorada, Inc v.

Overby, 592 So.2d 774 (Fla. App. 1992); Tower Group, Inc

v. Doral Enterprises, 760 So.2d 256 (Fla. App. 2000)

(counsel was judge’s opponent in an acrimonious campaign);

Kentucky Journal Publishing Co v. Gaines, 139 Ky. 747; 110

S.W. 268 (1908) (political enmity and publicly announced

position required recusal); Ponder v. Davis, 233 N.C. 699; 65

S.E.2d 356 (1951) (political activities adverse to the movant).

In Stephen v. Natchez, 261 So.2d 486, 489 (Miss. 1972),

the trial judge expressed his belief that there was a “lot of

political motivation, revenge and hate in connection with this

lawsuit”. The imputation of hate was one of several factors

leading to the conclusion that the judge should have recused

himself.

The existence of inter-personal animosity, or collateral

litigation, between a judge and counsel has been frequently

regarded as calling upon a judge to refrain from judging a

case of his or her adversary. Indeed, a judge who is

“enmeshed in other matters” involving the movant may be

regarded as constitutionally disqualified for that reason.

Johnson v. Mississippi, 403 U.S. 212, 215; 91 S. Ct. 1778;

29 L.Ed.2d 423, 427 (1971); Crampton v. Dept. of State, 395

Mich. 347, 351; 235 N.W.2d 352 (1975).

In 1993, Governor Engler had publicly suggested the

disbarment of Mr. Fieger as a means of ending the activities

of Dr. Kevorkian. Chief Justice Corrigan’s husband was an

outspoken critic of Dr. Kevorkian’s activities. After having

been appointed by Governor Engler, Chief Justice Corrigan

made the filing which could have resulted in the very

outcome, disbarment of Mr. Fieger, that her sponsor had

publicly discussed. The inevitable appearance of these events

is one of personal animosity to Mr. Fieger arising from the

spirited conflict which pitted Mr. Fieger and Dr. Kevorkian

against Governor Engler, Chief Justice Corrigan, and her

husband.

Even without the contexi provided by Governor Engler’s

call for disbarment, the filing of a Request of Investigation is

inherently personal in nature. Such a filing jeopardizes the

attorney’s ability to represent clients, pursue a chosen career,

or earn a livelihood. Feelings so intense that they motivate a

judge to attempt to destroy an attorney’s career undermine the

right to an impartial decision-maker.

It is also significant that the Request against Mr. Fieger

has been dismissed (Ex. D). If it had been sustained, one

might at least plausibly contend that a client whose attorney

has been professionally disciplined cannot complain about a

meritorious grievance filing. Here, however, no such

contention can be made.

In 2000, Mr. Fieger was not a candidate for political

office. Nonetheless, the campaign advertisements of Justices

Markman, Young and Taylor cast Plaintiff's counsel as their

opponent. This campaign approach raises two distinct bases

for recusal: the expression of personalized opposition to Mr.

Fieger, and the implicit public campaign promise that, if

elected, they will oppose Mr. Fieger’s perceived interests.

On behalf of Justices Markman, Young and Taylor, it has

been publicly claimed that Mr. Fieger was “trying to take

over the Supreme Court”, and that the opposing candidates

were “Fieger’s Friends”, or the “Fieger team”. The

apparent implication is that Petitioner’s counsel and these

Justices were personally at odds, a theme echoed by the

“hate” and “opponent” comments of Justices Young and

Markman (Exs. I, J).

The antipathy toward Petitioner’s counsel in those public

statements is more explicit in the literature which

characterizes Judge Fitzgerald as a “Geoffrey Fieger libera{I]”

while proclaiming “Forever isn’t long enough for a child

molester” (Ex. P). The totally false implication that Mr.

Fieger is favorably disposed toward child molesters

underscores the depth of the bias and prejudice harbored

toward Mr. Fieger.

In fairness, it may be noted that these “anti-Fieger”

statements were made by the party that nominated the Justices

rather than the Justices themselves. Petitioner does not know

what role, if any, the Justices personally played in the public

criticisms of Mr. Fieger on their behalf. If personal

participation by the Justices is deemed significant, that is yet

another appropriate subject for the evidentiary hearing which

Petitioner unsuccessfully sought.

What is known is that the Justices themselves have

personally participated in making Petitioner’s counsel a target

in the 2000 campaign. The voices of Justices Young,

Markman and Taylor appear on the advertisement which

mentions Mr. Fieger by name and implies that the reason

(“No wonder Geoffrey Fieger”) Petitioner’s counsel supports

their opponents is that they resorted to a “vicious” “false”,

“silly”, “smear campaign” “degrading the Court and the

public’s confidence in Michigan’s judiciary”. The professed

belief of Justices Young, Markman and Taylor that

Petitioner’s counsel relishes vicious, false efforts to degrade

the Court and erode public confidence, on the basis of a

campaign ad by the Democratic candidates that Mr. Fieger

had nothing to do with, conveys the disrepute in which

Petitioner’s counsel is held by these Justices, a disrepute that

may be regarded as “bias” or “prejudice” in the absence of

any involvement by Mr. Fieger in the Democratic ad that

spawned the comments found in Ex. L.

In State v. Garner, 760 S.W.2d 893, 906 (Mo. App.

1988), the court recognized how prior adverse statements are

inconsistent with the impartiality that is required:

“Conduct or speech of a trial judge indicative of a

belief as to the accused’s guilt is the antithesis of

impartiality. Acts or conduct [that] give the

appearance of partiality should be avoided with the

same degree of zeal as acts or conduct [that]

inexorably bespeak partiality.” ;

CONCLUSION

In sum, the public denouncement of Petitioner’s counsel

by Justices Taylor, Young, Markman and Corrigan bespeaks

a partiality that is at odds with Fourteenth Amendment

guarantees. Certiorari should be granted.

Respectfully submitted,

FIEGER, FIEGER, KENNEY & JOHNSON

By:

GEOFFREY N. FIEGER (P30441)

TAMMY J. REISS (P41851)

Attorneys for Petitioner

19390 West Ten Mile Road

Southfield, Michigan 48075

(248) 355-5555

BENDURE & THOMAS

MARK R. BENDURE (P23490)

Counsel of Record

645 Griswold, Suite 4100

Detroit, Michigan 48226

(313) 961-1525

Dated: May 26, 2005

APPENDIX A

SUPREME COURT OF MICHIGAN

No. 122457

[Decided January 28, 2005]

LINDA M. GLIBERT,

Plaintiff-Appellee,

¥.

DAIMLERCHRYSLER CORPORATION,

Defendant-Appellant.

i a ee ee ee ae ee

JUDGES: Clifford W. Taylor, Chief Justice, Michael F.

Cavanagh, Elizabeth A. Weaver, Marilyn Kelly, Maura D.

Corrigan, Robert P. Young, Jr. Stephen J. Markman,

Justices. Cavanagh and Kelly, JJ., would grant rehearing for

the reasons stated in the dissenting opinion by Cavanagh, J.

Weaver, J., dissenting.

OPINION

Order

In this cause, a motion for rehearing is considered, and it

is DENIED.

Cavanagh and Kelly, JJ., would grant rehearing for the

reasons stated in the dissenting opinion by Cavanagh, J.

DISSENTBY: Weaver

DISSENT:

Weaver, J. (dissenting)

I dissent from the decision of the four-justice majority

(Chief Justice Taylor and Justices Corrigan, Young, and

Markman) to deny plaintiff's motion for rehearing. After six

weeks of testimony and argument, a jury found defendant,

DaimlerChrysler Corporation, liable for several years of

sexual harassment suffered at work by plaintiff, Linda

Gilbert. Tragically, four months after the four majority

justices reversed the jury verdict, plaintiff, Linda Gilbert,

died at age 45 of a heart attack.

I would grant plaintiff's motion for rehearing, vacate the

majority’s reversal of a jury verdict in this exceedingly strong

case of sexual harassment, and remand for remittitur.

RL a

APPENDIX B

SUPREME COURT OF MICHIGAN

No. 122457

[Filed July 22, 2004]

LINDA M. GLIBERT,

Plaintiff-Appellee,

DAIMLERCHRYSLER CORPORATION,

Defendant-Appellant.

Nee Nee Nee Ne eee" ee”

BEFORE THE ENTIRE BENCH. Chief Justice: Maura D.

Corrigan, Justices: Michael F. Cavanagh, Elizabeth A.

Weaver, Marilyn Kelly, Clifford W. Taylor, Robert P.

Young, Jr., Stephen J. Markman. CAVANAGH, J.

(dissenting).

ROBERT P. YOUNG, JR.

OPINION

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 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.

V’e 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 procured through systematic

misconduct by plaintiff's trial counsel and supported by

dubious evidence. The majority and the dissent agree on one

nr eee

fundamental fact: the verdict rendered in this case is excessive

and cannot be affirmed. '

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 misleading argument, prejudice-baiting

rhetoric, and pleas for punitive damages. This rhetoric had its

' 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's 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 seg. 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.

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 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.” 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. 3

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

> 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.

cartoon, and the name of a coworker was written on the man

whose penis was being wrestled.’

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 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

> When plaintiff described the cartoon in a written report

requested by defendant, she wrote that “the woman was bare-

breasted and about to perform fellatio. | 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.”

seq., and negligence in addressing plaintiff's concerns about

sexual harassment in the workplace.‘

After filing her lawsuit, plaintiff formally reported to

management several other incidents of harassment that

occurred while the suit was pending. Plaintiff reported that,

on October 10, 1994, she found a vulgar cartoon entitled

“Highway Signs You Should Know” taped to her locker:> she

also reported that she had found an article by “Dr. Ruth”

taped to her locker one week earlier.* 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.’

Defendant investigated these latter two incidents and, being

unable to determine the responsible party, removed the

bulletin board.

* The breach of contract and negligence claims were omitted

from the pretrial order and were not presented to the jury.

* The cartoon contains a number of lewd drawings, each

apparently meant sexually to illustrate “highway signs” such as

“Dead End” and “Men at Work.”

° — 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.

” The “poem” is reproduced in the Court of Appeals’ opinion.

Unpublished opinion per curiam, issued 2002 Mich. App. LEXIS

1168, July 30, 2002 (Docket No. 227392), pp 6-7.

10a

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 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.®

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.

* 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.

‘ies Mees ware, Da oes

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lla

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 plainiiff’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 “decompensate,” 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.”

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.

12a

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

miusrepresentations 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 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.” |

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,

° 468 Mich. 883, 661 N.W.2d 232 (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.

ene ee

13a

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 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." The determination that a trial court abused its

discretion “involves far more than a difference in judicial

opinion.”'' 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.’””

0 Kelly v Builders Square, Inc, 465 Mich. 29, 34; 632 N.W.2d

912 (2001).

'' Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich. 219,

227; 600 N.W.2d 638 (1999).

'2 People v Hendrickson, 459 Mich. 229, 235; 586 N.W.2d 906

(1998) (opinion by KELLY, J.), quoting Detroit Tug & Wrecking

Co v Wayne Circuit Judge, 75 Mich. 360, 361; McGrath 859; 42

NW 968 (1889).

14a

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

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.

15a

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.

(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)®. 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)®, 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{].”"

“Excessive” is defined as “going beyond the usual, necessary,

'S Koontz v Ameritech Services, Inc, 466 Mich. 304, 312: 645

N.W.2d 34 (2002).

16a

or proper limit or degree; characterized by excess.”'* In the

context of compensatory damages, the determination whether

damages exceed the “necessary or proper limit” is no simple

task. “The authority to measure damages,” as we stated in

Kelly v Builder’s Square, “inheres in the jury’s role as trier

of fact.”’° Because the amount required to compensate a

party for pain and suffering is imprecise, that calculation

typically belongs to the jury.'°

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." The Palenkas majority stressed that appellate

review of jury verdicts must be based on objective factors and

'* Random House Webster’s Unabridged Dictionary (2001).

'S Id. at 34.

'© Td. at 35.

'7 432 Mich. 527, 533; 443 N.W.2d 354 (1989).

Te RN

17a

firmly grounded in the record.'* 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.'°

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

authorized by the Legislature.” Here, the Civil Rights Act

'§ Id. at 532-33.

9 Id.

(1999). Punitive damages are authorized, for example, by MCL

18a

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.”

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.”

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 . . .”” 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

Fe em ae AAO ll TP ae tt enti Cl a i ON eT Rs

750.147.

*! MCL 37.2801(3).

* There is also an overarching constitutional issue to consider. In

State Farm Mut Automobile Ins Co v Campbell, 538 U.S. 408, 416;

123 S. Ct. 1513; 155 L. Ed. 2d 585 (2003), the United States

Supreme Court concluded that “the 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.

3 Palenkas, supra at 532.

———e lc

19a

opinion testimony utterly lacking in scientific support.”* 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)°.

The second Palenkas factor addresses “whether the

verdict was within the limits of what reasonable minds would

deem just compensation for the injury sustained . . .” 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. 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

* The excessiveness of the verdict alone provided a sufficient basis

for the trial court to grant a new trial under MCR 2.61 1(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.

* Palenkas, supra at 532.

20a

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 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 . . . “”°

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.” Indeed, plaintiff

6 Id. at 532

7 See 42 USC 1981a(b)(3)(D).

2la

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 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 ina class

action.”* We are unaware, therefore, of any single-plaintiff

employment discrimination verdict involving a nonpunitive

** See, e.g., Braun, Mitsubishi to Pay $34 Million in Sex

Harassment Case, Los Angeles Times (June 12, 1998), p Al

(noting that the settlement was distributed among “hundreds of

female employees”).

22a

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 the 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 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.” 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.”

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

? 261 F.3d 1295 (CA 11, 2001).

* 236 Mich. App. 696, 700; 601 N.W.2d 426 (1999).

23a

damages.*' 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.”

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.

*' 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) (the 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 1981a[b]), aff'd 202 F.3d

1262 (CA 10, 2000).

* See, e.g., Channon v United Parcel Service, Inc, 629 N.W.2d

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).

24a

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.*

One of counsel’s tactics in this vein was his repeated

attempts to equate plaintiff with the victims of the 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:

3 See Firchau v Foster, 371 Mich. 75, 78, 79; 123 N.W.2d 151

(1963) (“Where 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.”).

25a

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 forgotteri 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 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

26a

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.

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

iliac caaaai aii

27a

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 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.

28a

Pe Tee ee ee ee Se ea

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.

A a i es pe oe ray

Later, plaintiff's counsel argued: {

Apparently . . . 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 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{[.]

29a ;

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 7

prejudice and that intentionally subverts the jury’s fact-finding

role.

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

;

a s&s

30a

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... .

The 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... .

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

3la

inflammatory remarks were fleeting and unintentional.*

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.*° Overreaching, prejudice-baiting

* See, e.g.,People v Bahoda, 448 Mich. 261; 531 N.W.2d 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”).

* In Powell v St John Hospital, 241 Mich. App. 64; 614 N.W.2d

666 (2000), the Court of Appeals “admonished” counsel for

misconduct that included his efforts to “gratuitously insert[{}” the

issue of race into a medical malpractice claim, [his] repeated

“belittleing” of witnesses, his inappropriate assertion that the

decedent had been “tortured,” and his personal attacks against

defense counsel.

Earlier, in Badalamenti v Beaumont Hosp-Troy, 237 Mich.

App. 278, 281; 602 N.W.2d 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

32a

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.*° The plaintiff in Reetz was

injured when he fell into an open hatch while working as a

deckhand. The vessel on which the 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... .”*’

Further, Reetz’s counsel made “repeated references” to Mr.

Steinbrenner, despite the fact that Mr. Steinbrenner had no

personal involvement in the case.** We concluded in Reetz

that

the 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

in this case was not affected. [/d. at 292.]

37 Td. at 110.

8 Id.

33a

have been swayed by these inflammatory remarks to

alter his view of the evidence.*

On the basis of counsel’s ad hominem attacks against the

defendant and his numerous references to multimillion dollar

verdicts in other cases, we concluded that the jury had been

incurably tainted and a new trial was necessary.”

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.*' And instead of referring to other multimillion dollar

verdicts, counsel repeatedly utilized language calling for

punitive damages.* Therefore, we conclude that

“the 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

°° Td. at 111.

“ Id. at 107, 112.

*' See, e.g., p 29 (“Apparently . . . when you enter the confines of

a multi, a very, very successful business over on Jefferson, . . . the

laws of civility don’t apply.”).

* See p 27.

34a

an effort to obviate the prejudice would have been

useless.”*°

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.

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 tiiis 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.

* Reetz at 111-112, quoting Steudle v Yellow & Checker Cab &

Transfer Co, 287 Mich. 1, 11-12; 282 N.W. 879 (1938).

SNM tet 8 ct lt e? oN .

35a

1. THE COURT’S GATEKEEPER ROLE

UNDER MRE 702

MRE 702, as it existed at the time of trial, provided:

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,*” MRE 702 has

imposed an obligation on the trial court to ensure that any

“ 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 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.

* See n 18 and accompanying text.

36a

expert testimony admitted at trial is reliable.“© While the

exercise of this gatekeeper role is within a court’s discretion,

a trial judge may neither “abandon” this obligation nor

“perform the function inadequately .”*’

Indeed, the obligation imposed by MRE 702 is reinforced

by MRE 104(a), which provides that “preliminary questions

concerning the qualification of a person to be a witness . . .

shall be determined by the court . . . .”“* The requirements of

MRE 104(a) extended to the application of MRE 702 because

the admission of expert testimony under this rule hinges on

“ See MRE 702 (providing that expert testimony is admissible “if

the court determines” that certain preconditions are met). See also

Daubert v Merrell Dow Pharmaceuticals, Inc, 509 U.S. 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 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.]).

*’ Kumho Tire Co Ltd v Carmichael, 526 U.S. 137, 158-159; 119

S. Ct. 1167; 143 L. Ed. 2d 238 (1999) (Scalia, J., concurring).

“* MRE 104(a) (emphasis added)..

37a

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.”” As such,

MRE 104 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.”™ 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.”

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

ail expert opinion testimony--regardless of whether the

testimony is based on “novel”™ science--is reliable.

* Daubert, supra at 590

*® People v Crawford, 458 Mich. 376, 388 n 6; 582 N.W.2d 785

(1998) (describing this rule as “basic hornbook law”).

5! See People v Davis, 343 Mich. 348; 72 N.W.2d 269 (1995); Frye

v United States, 54 App DC 46; 293 F 1013 (1923).

2 See, e.g., People v Young, 418 Mich. 1, 24; 340 N.W.2d 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

38a

Thus, properly understood, the court’s gatekeeper role is

the same under Davis-Frye and Daubert.*> 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 also show that any

opinion based on those data expresses conclusions reached

through reliable principles and methodology.™

whether proffered evidence is “novel.” See MRE 702; see also

General Electric Co v Joiner, 522 U.S. 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).

°3 See Joiner, supra at 142 (“While 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. ]).

* See, e.g.,Porter v Whitehall Labs, Inc, 9 F.3d 607, 615-617 (CA

7, 1993) (holding that the district court properly excluded expert

testimony in which the expert’s theory that the plaintiff's injuries

i ee

39a

Careful vetting of all aspects of expert testimony is

especially important when an expert provides testimony about

causation.» The United States Supreme Court’s caveat in

Joiner is persuasive:

Nothing 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.”

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 that data

and the opinion expressed by an expert.*’ As a result,

ostensibly legitimate data may serve as a Trojan horse that

facilitates the surreptitious advance of junk science and

spurious, unreliable opinions.

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").

6 Joiner, supra at 146.

*” Id.

;

40a

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.** The 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.*? He also

°$ Mr. Hnat told the jury that “pancreatitis is the worse [sic] pain 2

person ceuid experience. The pancreas as you know is very

innervated [sic] and when you develop pancreatitis that is the most

painful way to die.”

*? A social worker is certified in Michigan under MCL 333.18511.

“Social work,” as used in this section, is defined as

ads as

LTT RT a OEM

4la

testified that he had received a master’s degree in

psychobiology, although it was revealed after trial that this

testimony was patently false.”

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(1)(d)].

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.

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

42a

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.

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

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 trial court additional

pause while evaluating the defendant’s 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.

din . Pe |

ne se no

43a

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?

A. Alcoholism, major depression precipitated by

work stresses, and sexual harassment. That is the

bottom line.

44a

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, plaintiffs 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

45a

to medical science, inflammation of her pancreas. And

she has suffereu 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 !eave 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.*!

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. 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

*! 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.”

46a

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 practitioner

does not render him unqualified as an expert witness’”

because “any limitations in” Mr. Hnat’s “qualifications are

relevant to the weight, not the admissibility, of his

testimony.” The Court of Appeals’ observation that one

need not be a medical practitioner to testify as an expert is

jittle 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

713-714.

Pe ee ee re ee

47a

of the expert’s opinion.® 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

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.

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

* 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 stres . disorder. /d. 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 the plaintiff's

certified social worker would have been relevant to the weight of

his testimony even though they would not have barred its

admission.

* Crawford, supra at 388 n 6.

48a

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 of

alcoholism and depression was admissible because these

effects are “common knowledge.”® As the United States

District Court for the Eastern District of Michigan has aptly

stated:

Expert testimony is not admissible unless it will be

helpfui io 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

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,

(ED Mich, 2003) (emphasis added).

cara PRE ETT SMO

49a

to turn that rule on its head. The previous MRE 702 allowed

expert opinion testimony only “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. . . .” 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.

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.

50a

While the trial court did not err in denying defendant’s

motion to exclude those incidents,” 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.* 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.”

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

*’ 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 N.W.2d 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.

% Chambers v Trettco, Inc, 463 Mich. 297, 312; 614 N.W.2d 910

(2000).

* Id. at 319.

ee.

Sla

rationales. First, such evidence may be admissible in order to

establish the nature and extent of the hostile environment to

which the plaintiff was subjected and the adequacy of the

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.”

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 substantialiy interfere with the

employee’s employment or created an intimidating, hostile,

or offensive work environment,”"' --and to establish the

inadequacy of defendazt’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.

lil. 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

? See id.

” Id at 311 (emphasis added).

52a

should have been apparent to the trial court that the persistent

and calculated efforts of plaintiffs 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

DISSENTBY: CAVANAGH

DISSENT: 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 counc2l 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.

53a

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.” Anie 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 N.W.2d 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

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 N.W.2d 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.

54a

An employee in defendant’s human resources department

testified that the investigation into plaintiff's sexual

harassment claims was inadequate.” Another employee in

defendant’s human resources department testified that 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.” 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

sexuai harassment policy and asking the men if they harassed

plaintiff or knew who did.” The trial representative said he

”? 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.

% 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.

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?

55a

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.” The trial

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 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, sit.

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.

75 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.

56a

representative 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. oe

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 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.

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.

KK KL

57a

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.” Regarding her

suicide attempt, plaintiff said “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

7° 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.

* * *

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.

aaa a ist

58a

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 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””’ or

“a slip of the tongue,” and their conduct as “horseplay.””

” 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.”

® Contrary to defense counsel’s characterization, an employee in

defendant’s human resources department stated that a reasonable

Helle Se es Silke erent na ie Me Tre wh a

59a

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.” 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 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,

person would find the cartoons and pictures offensive. Another said

he considered the penis photograph to be sexual harassment.

79 A. [The supervisors] had 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.

ye Oe ee ae eee wert gre vee os 5

60a

“She [plaintiff] thought it was more important to protect

whoever it was that was responsible.” 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

men.”

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

*° 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.”

6la

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. 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 the jury was somehow

influenced or confused by these random phrases during

closing arguments is insulting to the jurors’ intelligence.

62a -

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 minuscule 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 n 1, 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 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.

Il. EXPERT WITNESS TESTIMONY

I agree with the majority that “MRE 702 has imposed an

obligation on 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.

Ae Hat SLIMY

63a

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 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.

64a

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-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.*'

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

*' Medical records listed various medical conditions suffered by

plaintiff, including chronic pancreatitis.

65a

the sexual harassment she suffered while employed by

defendant caused plaintiff to start drinking again and suffer

from depression, which also exacerbated her drinking.” As an

alcoholic suffering from 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.

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.

lif. 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. 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

67a

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 N.W.2d 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

N.W.2d 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.

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.® In an ironic exchange during

3 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.

* **

68a

the trial, plaintiff's counsel actually predicted the outcome of :

the case after defense counsel requested a jury instruction

regarding plaintiffs 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

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 i

reflect I am acceding to this on behalf of my client i

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. |

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.

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.

69a

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 should now step in to help

defendant correct its errors in judgment. Therefore, I

respectfully dissent.

Michael F. Cavanagh

Elizabeth A. Weaver

Marilyn Kelly

70a

APPENDIX C

SUPREME COURT OF MICHIGAN

No. 122457

[Decided October 30, 2003]

LINDA M. GILBERT,

Plaintiff-Appellee,

¥.

DAIMLERCHRYSLER CORPORATION,

Defendant-Appellant.

New Ne Ne eee ee”

COA: 227392. Wayne CC: 94-409216-NH.

Gilbert v. Daimler-Chrysler Corp. ,

469 Mich. 880, 669 N.W.2d 265,

2003 Mich. LEXIS 2039 (2003)

JUDGES: Kelly, J., not participating in the decision

regarding this motion for reconsideration. Weaver, J. (not

participating in part and voting to grant reconsideration in

part).

OPINION

On order of the Court, the motion for reconsideration of

this Court’s order of September 17, 2003 is considered, and

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it is DENIED, because it does not appear that the order was

entered erroneously.

Kelly, J., not participating in the decision regarding this

motion for reconsideration.

Weaver, J. (not participating in part and voting to grant

reconsideration in part), states:

Plaintiff moves for reconsideration of the Court’s

September 17, 2003, order' denying plaintiff's motion for

recusal and for an evidentiary hearing regarding the

participation of Chief Justice Corrigan and Justices Taylor,

Young, and Markman in Gilbert v DaimlerChrysler Corp.’

Plaintiff does not seek reconsideration of my decision not to

recuse myself from the case.’

' Gilbert v Daimler-Chrysler Corp, 469 Mich. 880, 669 N.W.2d

265 (2003).

7 On April 8, 2003, this Court entered an order granting

defendant’s application for leave to appeal. Gilbert v Daimler-

Chrysler Corp, 468 Mich. 883, 661 N.W.2d 232 (2003).

> Plaintiff initially filed a motion for the recusal of Chief Justice

Corrigan, myself, and Justices Taylor, Young, and Markman from

Gilbert v DaimlerChrysler, and requested an evidentiary hearing on

the motion for recusals. On September 17, 2003, an order was

entered on plaintiff's motion. In that order, Chief Justice Corrigan

and Justices Cavanagh, Taylor, Young, and Markman voted to deny

plaintiff's motion with regard to all the challenged justices. Justice

Kelly, who was not chal

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