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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 821

## Text

Court,
FILED

041673 APR 28 200

No OFFICE OF THE CLERK

In the
Supreme Court of the Anited States

LINDA GILBERT,
Petitioner,

V.

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

i
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.

ii
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.

iv
CORPORATE DISCLOSURE STATEMENT

Petitioner LINDA GILBERT, makes the following disclosure:

1. Is said party a subsidiary or affiliate of a
publicly owned corporation?

No

2. Is there a publicly owned corporation, not a
party to the appeal, that has a financial interest
in the outcome?

No

Vv

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

vi

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 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.

8a

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.”

9a

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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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

(c) Excessive or inadequate damages appearing to
have been influenced by passion or prejudice.

(d) A verdict clearly or grossly inadequate or
excessive.

(e) A verdict or decision against the great weight
of the evidence or contrary to law.

(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.

© Rafferty v Markovitz, 461 Mich. 265, 270-271; 602 N.W.2d 367
(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.

a

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{[.]

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)].

© Mr. Hnat was allowed to testify based in part on his assertions--
both in court and in a written resume submitted as an exhibit--that
he had a master’s degree in psychobiology from the University of
Michigan and that he had received the prestigious Pillsbury Prize
in psychology as an undergraduate. Defendant discovered after trial
that both statements were false. Contrary to his sworn testimony,
plaintiff had neither obtained a master’s degree in psychobiology
nor received the Pillsbury Prize as an undergraduate.

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

© Slip op at 33-34, quoting Grow, 236 Mich. App. 696 at 713 at
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.

Tn

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
ken of common knowledge.©

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,

© See slip op at 34.

© Zuzula v Abb Power T & D Co, Inc, 267 F. Supp. 2d 703, 711
(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.

74

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.

ee

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.

© Plaintiff testified:

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.

4

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

SOLOW ste belles ean!

Tla

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 challenged by the plaintiff, did not participate
in the motion. I denied the motion to recuse myself and did not
participate in the motion regarding whether the other justices should
recuse themselves. I also explained that given the nature of

ae

72a

Plaintiff’ s reconsideration motion presents two alternative
requests. Plaintiff asks that the whole Court convene to decide
the motion for reconsideration regarding the denial of the
motion for recusal and the denial of an evidentiary hearing
regarding the participation of Chief Justice Corrigan and
Justices Taylor, Young, and Markman.

Alternatively, plaintiff requests that the Court employ the
procedure set forth in MCR 2.003(C)(3) to review the
decisions of Chief Justice Corrigan and Justices Taylor,
Young, and Markman not to disqualify themselves from this
case. Specifically, plaintiff requests that the decision of Chief
Justice Corrigan to not recuse herself be reviewed by a judge
assigned by the state court administrator and that the decisions
of Justices Taylor, Young, and Markman be reviewed by
Chief Justice Corrigan or a judge assigned by the state court
administrator.

I do not participate in the reconsideration request
regarding whether the other justices should have recused
themselves, whether there should be an evidentiary hearing
regarding their participation, or whether their decisions not to
recuse themselves and not to hold an evidentiary hearing on
the question of the participation should be reversed on
reconsideration.

I would grant plaintiff's motion for reconsideration to
address the proper procedure for the review of a judge’s
decision not to recuse himself or herself from a case. Pursuant

plaintiff's allegations regarding her request for my recusal, there
was no need for an evidentiary hearing for me to decide whether to
participate.

Senet ee ee ee Se ee

Die eh biara heh cai ee te its

73a

to MCR 2.003, the challenged judge decides the motion
asking for his or her disqualification. If the motion is denied
and a party requests review of the denial, pursuant to MCR
2.003(C)(3), the chief judge or a judge appointed by the state
court administrator then reviews de novo the judge’s decision
not to recuse himself or herself.

A
Reconsideration of Motion for Recusals

In the September 17, 2003, order I decided only plaintiff's
motion asking that I recuse myself and did not participate in
the motion regarding whether the other justices should recuse
themselves. Justice Kelly, who was not Challenged by the
plaintiff, did not participate in the motion. Plaintiff argues that
the whole Court--including Justice Kelly and myself--should
convene to decide the motion to recuse Chief Justice Corrigan
and Justices Taylor, Young, and Markman and to have an
evidentiary hearing regarding each justice’s participation in
this case. MCR 2.003(C)(3) states in pertinent part, however,
that the “. . . challenged judge shall decide the motion.”

As I explained in my previous statement in this matter,
pursuant to MCR 2.003(C)(3), it is the duty of each
challenged judge to make his or her own decision on a motion
asking for the judge’s disqualification in a case. Thus, I do
not participate in the reconsideration regarding the denial of
the motion regarding Chief Justice Corrigan and Justices
Taylor, Young, and Markman.

Plaintiff contends that the Supreme Court need not comply
with MCR 2.003(C)(3). This argument is without merit. MCR
2.001 governs when the rules in chapter 2 of the court rules,

74a

including MCR 2.003, apply to a court. MCR 2.001
provides:

The rules in this chapter [which include MCR 2.003]
govern procedure in all civil proceedings in all courts
established by the constitution and laws of the State of
Michigan, except where the limited jurisdiction of a
court makes a rule inherently inapplicable or where a
rule applicable to a specific court or a specific type of
proceeding provides a different procedure.

The Michigan Supreme Court is a court established by the
Constitution of the state of Michigan; it is not a court of
limited jurisdiction so that MCR 2.003 would be “inherently
inapplicable.” Nor is there a rule on motions for recusal that
provides a different procedure applicable specifically to the
Supreme Court. Thus, until such time as MCR 2.003 is
revised to include a different procedure that would
specifically apply to the Supreme Court,‘ it is appropriate for
each justice to follow the procedure outlined in MCR
2.003(C)(3) when deciding motions for his or her recusal.

Finally, plaintiff's argument that the procedure detailed in
MCR 2.003(C)(3) does not apply to the Supreme Court
because the court rule uses the term “judge” rather than
“justice” must fail. A justice is a judge. Black’s Law

* In In re JK, 468 Mich. 202, 220-221; 661 N.W.2d 216 (2003),
I proposed a court rule requiring that when the issue of a justice’s
disqualification is raised, the justice should publish in the record of
the case the reasons for his or her decision to participate or not
participate in the case. Because I believe that this procedure would
better inform the public and is in no way precluded by any court
rule, I have followed this procedure.

75a

Dictionary defines a “justice” as “A judge, esp. of an
appellate court or a court of last resort.”° Therefore, use of
the term “judge” does not preclude this Court from following
the procedures articulated in MCR 2.003.

B
Procedure to Review Denials of Request for Recusals

Because MCR 2.003 is applicable, I would grant
plaintiff's alternative request for the Court to address and to
follow the procedure set forth in MCR 2.003(C)(3) for the
review of a judge’s decision not to recuse himself or herself
from a case. Pursuant to MCR 2.003(C)(3), when a motion to
recuse a judge is denied and a party requests review of the
denial, the chief judge or a judge appointed by the state court
administrator reviews the decision. MCR 2.003(C)(3)
provides:

Ruling. The challenged judge shall decide the motion.
If the challenged judge denies the motion,

(a) in a court having two or more judges, on the
request of a party, the challenged judge shall refer the
motion to the chief judge, who shall decide the motion
de novo;

(b) in a single-judge court, or if the challenged judge
is the chief judge, on the request of a party, the
challenged judge shall refer the motion to the state
court administrator for assignment to another judge,

5 Black’s Law Dictionary (7th ed).

76a

who shall decide the motion de novo. [Emphasis
added. }

The procedure in MCR 2.003(C)(3) for review of the
denial of the motion for recusal should be followed in this
case, as plaintiff has now requested.

This Court has recognized that failure to refer the motion
to disqualify to the chief judge on the request of a party is
wrong and improper. /n re Bradfield, 465 Mich. 1309, 1311,
638 N.W.2d 107 (2002). The requirement that the motion be
referred to the chief judge is not discretionary. Jn re Smith),
244 Mich. App. 153, 160-161, 624 N.W.2d 504 (2000).

Pursuant to MCR 2.003(C)(3), Chief Justice Corrigan’s
decision to deny the motion for recusal with regard to herself
should be reviewed de novo by a judge assigned by the state
court administrator. Justices Taylor, Young, and Markman’s
decisions to deny plaintiff's motion concerning themselves
should be reviewed de novo either by Chief Justice Corrigan
or by a judge appointed by the state court administrator.

Conclusion

I do not participate in the reconsideration request
regarding whether the other justices should have recused
themselves, whether there should be an evidentiary hearing
regarding their participation, or whether their decisions not to
recuse themselves and not to hold an evidentiary hearing on
the question of their participation should be reversed on
reconsideration.

I would grant plaintiff's motion for reconsideration to
address the proper procedure for the review of a judge’s

ee ee ye eT

Pe TE ae Fe La Oa Pe eee en

77a

decision not to recuse himself or herself from a case. Pursuant
to MCR 2.003, the challenged judge decides the motion
asking for his or her disqualification. If the motion is denied
and a party requests review of the denial, pursuant to MCR
2.003(C)(3) the chief judge or a judge appointed by the state
court administrator then reviews de novo the judge’s decision
not to recuse himself or herself from the case. Thus, pursuant
to MCR 2.003(C)(3), Chief Justice Corrigan’s decision to
deny the motion for recusal regarding herself should be
reviewed de novo by a judge assigned by the state court
administrator. Justices Taylor, Young, and Markman’s
decisions to deny plaintiff's motion relating to themselves
should be reviewed de novo either by Chief Justice Corrigan
or by a judge appointed by the state court administrator.

78a

APPENDIX D

SUPREME COURT OF MICHIGAN
No. 122457

[Decided September 17, 2003]

LINDA M. GLIBERT,
Plaintiff-Appellee,

Vv.

DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.

i ee ee ee ed

JUDGES: Kelly, J., not participating in the decision
regarding this motion. Weaver, J., not participating in the
decision regarding the motion to recuse Chief Justice
Corrigan and Justices Taylor, Young and Markman, denies
the motion to recuse herself.

OPINION

On order of the Court, the motion for recusal and for an
evidentiary hearing is considered, and it is DENIED.

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

dh a a eh a lll tt: lt lta

79a

Weaver, J., not participating in the decision regarding the
motion to recuse Chief Justice Corrigan and Justices Taylor,

Young and Markman, denies the motion to recuse herself and
States:

On April 8, 2003, this Court entered an order granting
defendant’s application for leave to appeal.’
Subsequently, plaintiff filed a motion for recusal by
Chief Justice Corrigan and Justices Weaver, Taylor,
Young, and Markman from hearing this appeal.
Plaintiff also asks that there be an evidentiary hearing
on the motion for recusals.

A challenged judge decides the motion asking for his
disqualification. MCR 2.003(C)(1), (3). Therefore, even
though the plaintiff's motion also asks for recusal by Chief
Justice Corrigan and Justices Taylor, Young and Markman,
the only issue before me is whether I should recuse myself

' Gilbert v Daimler-Chrysler Corp, 468 Mich. 883, 661 N.W.2d
232 (2003).

80a

from participating in this appeal.” I do not decide whether my
colleagues should recuse themselves or not.

As explained below, given the nature of the allegations
plaintiff makes supporting the request for my recusal, there is
no need for an evidentiary hearing for me to decide whether
to participate in this matter. I deny plaintiff's motion
requesting that I recuse myself from this appeal.

I

In requesting my recusal from this appeal, plaintiff asserts
only that the Michigan Chamber of Commerce, which filed a
brief as amicus in this case, contributed to my campaign for
reelection to the Michigan Supreme Court in 2002 and aired
advertisements advocating my reelection.’

2 In my statement of disqualification in Jn re JK, 468 Mich. 202;
661 N.W.2d 216 (2003), I proposed for public comment
amendments to Michigan Court Rule 2.003. For the full text of my
proposed amendments, see Appendix B. These amendments would
provide that in a case such as this, when the issue of disqualification
is raised, a justice should publish in the record of the case the
reasons for his or her decision to participate or not participate in the
case.

I continue to believe that publishing the reasons for one’s
decision on whether or not to participate in a case would better
inform the public. I have therefore followed this procedure and
placed my response to plaintiff's motion for recusal on the record.

> See Appendix A for the full text of plaintiff's allegations
requesting my recusal.

het Leth th bd Widnes 6

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8la

While plaintiff alleges that Chief Justice Corrigan and
Justices Taylor, Young and Markman have made statements
about plaintiff's attorney, Geoffrey Fieger, and the issues in
this case demonstrating bias or prejudice in this appeal,
plaintiff does not allege that I have made any such statements.
For the record, I note that I have not made or caused to be
published any statements about any of the parties, their
attorneys, the amicus, or the issues in this case that would
raise the issue of bias or prejudice on my part.

In 2002, the Michigan Chamber of Commerce made a
contribution of $15,055 directly to my reelection campaign.‘
The Chamber also spent $ 840,000 on advertisements
supporting the reelection of Justice Young and myself that it
created and aired without my knowledge or participation.* In
the interest of complete disclosure, I also note that my
reelection campaign records show that it received
contributions of $ 200 from plaintiff's attorney, Geoffrey
Fieger; $ 2,000 from DaimlerChrysler’s political action
committee (PAC); $ 250 from DaimlerChrysler’s assistant
general counsel, Steven Hantler; $ 375 each from
DaimlerChrysler’s attorneys Elizabeth Hardy and Thomas

* This amount was less than half the maximum limit of $34,000.

Special Interests v Public Values: Funding Michigan Supreme Court
Campaigns, 1994-2000, The National Institute on Money In State
Politics, .

> A Citizen’s Guide to Michigan Campaign Finance, 2002,
Michigan Campaign Finance Network, The National Institute on
Money In State Politics.

82a

Kienbaum; and $ 500 from retired Justice Patricia Boyle, of
counsel for DaimlerChrysler in this case.

Plaintiff essentially asserts that the Chamber’s
contributions to my _ reelection campaign and_ the
advertisements that the Chamber produced and aired
advocating my reelection are inherent cause for my recusal
from the case. I disagree. Under the current system for
selection of Michigan Supreme Court justices, the rules
clearly allow both the contributions that were made to my
campaign and the advertisements that the Chamber created
and aired supporting my reelection.

The question, given the current election system, is not
whether amicus made contributions to my reelection campaign
or created and aired advertisements supporting my reelection,
but whether those contributions and that support would
influence my judgment in this appeal. A judge is disqualified
from participating in a case when the judge cannot impartially
hear the case, including when the judge is personally biased
or prejudiced for or against a party or attorney. MCR
2.003(B). The contribution to my 2002 reelection campaign
made by amicus, Michigan Chamber of Commerce, and the
advertisements that the Chamber produced and aired have not
caused me to be influenced for or against either party. None
of the contributions to my reelection campaign nor any of the
advertisements aired supporting my reelection have even the
remotest effect on my decisions and judgment as a justice of
this Court.

I have given careful consideration to plaintiff's request
that I recuse myself from participating in this case. Because
I am neither biased nor prejudiced for or against anyone in the
case I deny plaintiff's motion requesting that I recuse myself

3

PF QVC BN tsi sesatint eas

83a

from participation in this appeal. It would be a disservice to
the public that elected me if I failed to participate in a case in
which I am eligible to serve when I have no bias or prejudice
that would prevent me from doing so.

Il

Plaintiff also asks that there be an evidentiary hearing on
the motion for recusal. I would not be opposed to holding an
evidentiary hearing on plaintiff's motion, were there
allegations against me that required fact-finding. But there are
none. Given the nature of the allegations supporting plaintiff's
request for my recusal, such a hearing is not necessary for me
to decide whether I should participate in this case. Plaintiff's
allegations that amicus, the Michigan Chamber of Commerce,
contributed to my campaign for reelection and aired
advertisements supporting my reelection are well-established
on the public. record and are not in dispute. Thus, an
evidentiary hearing would not provide any additional
information to assist me in deciding whether to participate in
the case.

Il

Plaintiff's motion for recusal presents an opportunity to
address Michigan’s current system of selecting justices, which
combines statewide elections and appointments by the
Governor to fill vacancies. A full term of office is eight years,
and a justice may run for reelection. When a justice leaves
office before his or her term expires, the Governor appoints
a new justice to fill the vacancy. The Governor’s power of
appointment to fill vacancies is absolute and unchecked. The
newly appointed justice must then run in the next election for
the remainder of the predecessor’s term. Because the terms of

84a

justices are staggered, and because justices appointed to fill
vacancies must run for the remainder of the term, there is a
statewide election for Supreme Court every two years.

Increasingly large sums of money have been raised for
and spent by the candidates’ campaigns and/or independent
political action committees. During the years from 1994 to
2000, the amounts contributed to the candidates nominated by
the two major parties and the independent expenditures by the
political parties and political action committees have risen
sharply. The total amount spent on Supreme Court elections
has gone from $1,339,842 in 1994 to at least $16 million
estimated in 2000 -- a 12-fold increase in just 6 years.°

Michigan’s method of selecting Supreme Court justices
has rightly come under intense scrutiny since the 2000
election -- the most expensive and rancorous for the judiciary
in state history. In my opinion, the escalating cost and
rhetoric of Michigan Supreme Court justice campaigns have
not served to better inform the electorate regarding the
qualifications of the candidates. Spending $16 million or more
in a Supreme Court campaign is unseemly, wasteful, and

® These figures are taken from Special Interests v Public Values:
Funding Michigan Supreme Court Campaigns, 1994-2000,
Michigan Campaign Finance Network and Sanchez, Samantha,
Campaign Contributions and the Michigan Supreme Court, The
National Institute on Money In_ State Politics,
. See Appendix C for the campaign contributions for the 1994,
1996, 1998, 2000, and 2002 campaigns. The total amount spent in
the elections cannot be known exactly because advertisements run
in opposition to various Supreme Court candidates are not regulated
by MCL 169.206(2).

—= i, Sté=~™O

85a

ultimately damaging to the public’s trust and confidence in the
Supreme Court, and therefore, the judiciary. The judiciary
cannot afford to be perceived by the public as “bought and
paid for.” A system that allows and encourages the
expenditure of huge amounts of money on Supreme Court
elections needs reconsideration.

I have been elected and reelected to the judicial bench
seven times: three times to the probate court, twice to the
Court of Appeals, and twice to the Supreme Court. While I
find the challenges of the campaign process invigorating, my
campaign experiences have revealed the inherent problems in
our current system. Indeed, in each of my campaigns I
emphasized the importance of voting the “nonpartisan ballot, ”
because so many citizens I met were unfamiliar with judicial
candidates and even the fact that judges and justices are both
appointed and elected. Over two years ago when I was Chief
Justice, I proposed for exploration a modified version of the
federal plan for selecting Michigan Supreme Court justices.
I continue to develop and consider plans for an alternative
selection system for Michigan Supreme Court justices.

To ensure the independence of the Court and to better
inform the public about the process, it is time to initiate a
public dialogue regarding the method by which Michigan
Supreme Court justices are selected. A first step in this
process should be the creation of a commission to study the
possible methods of selecting Michigan Supreme Court
justices. A commission would generate ideas that can improve
our current system and educate the public about options. I
urge the Governor, the Legislature or the Michigan Supreme
Court, or any combination of these branches of government,
to form a commission to study and report on the important

86a

issue of the selection of Michigan Supreme Court justices,
which is vital to the well-being of the judiciary.

APPENDIX A:
The Full Text of the Allegations Requesting My Removal

14. In the fall of 2002, the Michigan Chamber of
Commerce provided substantial benefit to the campaigns of
Justices Young and Weaver, publicly airing advertisements
which advocated the election of these Justices.

15. These advertisements and campaign benefits were
made about the same time as the Michigan Chamber of
Commerce filed its Amicus Curiae Brief in support of its
member, Defendant Daimler Chrysler, in this case.

16. In short, the Michigan Chamber, which had no prior
involvement in this case, filed its Amicus Brief in support of
Defendant Daimler Chrysler and, at about the same time,
publicly financed the campaigns of Justices Young and
Weaver.

17. There is no indication in the Order of April 8, 2003
that Justices Young or Weaver recused themselves from
considering the requests of their campaign benefactor, the
Michigan Chamber of Commerce.

18. Plaintiff respectfully submits that Justices Young and
Weaver should recuse themselves from further involvement
in this appeal:

a. For these Justices to participate in this appeal on its
substantive merits, with the involvement of the Chamber,

87a

their principal campaign contributor, would minimally present
the appearance of impropriety;

b. The payments for the benefit of these Justices give rise
to bias or prejudice favorable to the Chamber and its member,
Defendant Daimler Chrysler;

c. For these Justices to participate would present a
probability of actual bias that is too high to be constitutionally
tolerable.

27. This is the first case known to the undersigned in
which the Michigan Chamber of Commerce has appeared as
Amicus Curiae after making the campaign contributions and
payments for the 2000 and 2002 campaigns referred to above.

APPENDIX B:
Proposed Amendments to Michigan Court Rule 2.003

(C)(5)Disqualification of a justice. If a justice’s
participation in a case is challenged by a written motion or if
the issue of participation is raised by the justice or another
justice, the challenged justice shall decide the issue and
publish in the record of the case his or her reasons for the
decision to participate or not.

(D)(2)Procedure for a justice. If it appears that there may
be grounds or possible grounds for disqualification, the justice
may have the clerk of the supreme court send the parties the
justice’s written explanation of the grounds or possible
grounds for disqualification, and ask the parties and their
attorneys to consider whether to waive any disqualification.

88a

If, following disclosure of any grounds or possible grounds
for disqualification other than personal bias or prejudice
concerning a party, the parties all notify the clerk of the
supreme court in writing that the justice should not be
disqualified, and the justice is then willing to participate, the
justice may participate in the case.

Appendix C: Contributions and Independent Expenditures
in Supreme Court Elections, 1994-2002

1994 Supreme Court Election
Candidate Amount Independent
contributed Expenditures on
to campaign behalf of

candidate
Shelton $ 519,901 $ 16,281
Mallett S 374,203 $ 34,387
Griffin $ 198,178 $ 0
Weaver $ 196,995 $ 0

1996 Supreme Court Election
Candidate Amount Independent
contributed Expenditures on
to campaign behalf of

candidate
Gage $ 723,570 S$ 477,962
Murphy $ 699,354 $ 367,924
Kelly $ 553,274 S$ 123,649
Brickley $ 228,977 $ 223,697

i
:

89a

1998 Supreme Court Election

Candidate Amount
contributed

to campaign

Corrigan $ 1,033,339
Taylor S$ 986,566
Borman $ 663,183
Youngblood $ 592,297
Cavanagh $ 255,072
Collins $ 202,163

Independent
Expenditures
on
behalf of
candidate
$ 30,780
$ 6,572
$ 19,256
$ 6,890
$ 6,890
$ 6,572

2000 Supreme Court Election

Candidate Amount
contributed

to campaign

Taylor $ 1,332,975
Young $ 1,292,192
Markman $ 1,244,502
Robinson $ 1,195,683
Thomas $ 1,008,420

Fitzgerald $ 750,539

Independent
Expenditures
on
behalf of
candidate
$ 522,627
$ 538,885
$ 497,073
$ 9,748
$ 9,748
$ 9,748

90a

2002 Supreme Court Election

Candidate Amount Independent
contributed Expenditures
on
to campaign behalf of
candidate
Young $ 622,413 $ 10,842
Weaver $ 280,440 $ 1,958
Drake $ 44,025 $ 7,797
Brennan $ 11,549 $ 10,093

These figures are taken from Special Interests v Public
Values: Funding Michigan Supreme Court Campaigns, 1994-
2000, Michigan Campaign Finance Network; A Citizen’s
Guide to Michigan Campaign Finance--2002, Michigan
Campaign Finance Network; and Sanchez, Samantha,
Campaign Contributions and the Michigan Supreme Court,
The National Institute on Money In State Politics,
.

Independent expenditures are expenditures made by the
political parties and political action committees on behalf of
a candidate.

Ola

APPENDIX E

SUPREME COURT OF MICHIGAN
No. 122457

[Decided April 8, 2003]

LINDA M. GLIBERT,
Plaintiff-Appellee,

V.

DAIMLERCHRYSLER CORPORATION,

)
)
)
)
)
)
Defendant-A ppellant. )
)

COA: 227392. Wayne CC: 94-409216-NH.
Gilbert v. Daimler-Chrysler Corp.,
2002 Mich. App. LEXIS 1168

(Mich. Ct. App., July 30, 2002)

DISPOSITION: Leave to appeal granted; motions to file
briefs amicus curiae granted.

OPINION

On order of the Court, the application for leave to appeal
from the July 30, 2002 decision of the Court of Appeals is
considered, and it is GRANTED. The motions to file briefs
amicus curiae by the Michigan Chamber of Commerce and by

92a

the United States Chamber of Commerce are also
GRANTED. Other persons or groups interested in the
determination of the questions in this case may move the
Court for permission to file briefs amicus curiae.

_— ve. ee

93a

APPENDIX F

COURT OF APPEALS OF MICHIGAN

No. 227392

[Decided July 30, 2002}

LINDA M. GLIBERT,
Plaintiff-Appellee,

Vv.

DAIMLERCHRYSLER CORP.,
Defendant-A ppellant.

Wayne Circuit Court. LC No. 94-409216-NH.

JUDGES: Before: Whitbeck, C. J., and Fitzgerald and
Markey, JJ.

OPINION

A jury awarded plaintiff Linda M. Gilbert $21 million for
her claim that defendant DaimlerChrysler, Inc.,' violated the

' In order to be consistent with the majority of testimony and
documentary evidence presented in this case, we refer to defendant
as Chrysler.

94a

Michigan Civil Rights Act (CRA), MCL 37.2192 et seq.,
when its agents, some of Gilbert’s coworkers and supervisors,
sexually harassed her for more than seven years. Chrysler
now appeals as of right from the trial court’s order denying its
motion for an evidentiary hearing, judgment not withstanding
the verdict (JNOV), a new trial, and remittitur. We affirm.

I. Basic Facts And Procedural History

Following her graduation from high school in 1977,
Gilbert held jobs at McDonald’s and Comerica Bank before
attempting to obtain a better job with Blue Cross and Blue
Shield of Michigan. When the job with Blue Cross did not
materialize, Gilbert decided to become a millwright.
Millwrights are skilled tradespeople who work mainly with
metals, installing, maintaining, and repairing machinery. This
is heavy, dirty, and sometimes dangerous work, which
interested Gilbert because of the combination of technical
knowledge and athletic skills it requires. In the automobile
industry, millwrights are considered among the elite skilled
trades because they are responsible for keeping the assembly
line moving. In 1986, Gilbert applied to the Millwrights
Institute of Technology, where she was accepted and began
her four-year millwright apprenticeship. In 1990, Gilbert
became a journeyman millwright, having finished the
apprenticeship and the many hours of work it required. She
spent her first two years as a journeyman working as an
independent contractor through her union.

Because of layoffs common to the trade, Gilbert worked
very little during fall 1991 and winter 1992. At the same
time, Gilbert, who had been abused as a child and had a
history of alcoholism and cocaine use, began having personal
problems. While details of this period in her life are not

OE eT.

95a

particularly clear, she was arrested for drunk driving and was
involved in an altercation at a bar around this time. In early
1992, Gilbert sought treatment for her substance abuse
problems from Steven Hnat, a psychiatric social worker who
specializes in treating people with substance abuse problems.
According to Hnat’s evaluation, Gilbert had a substance abuse
problem and the depression she was experiencing was a
symptom of that substance abuse, not a separate condition.
Despite Gilbert’s history of abuse as a child and poor family
support, Hnat thought that Gilbert was a resilient and
motivated person with a good prognosis for recovery, in part
because she had initiated treatment voluntarily. By the end of
February or the beginning of March 1992, Hnat believed that
Gilbert was clean and sober.

In March 1992, Chrysler hired Gilbert to work at its new
Jefferson North Assembly Plant. Gilbert was the first female
millwright in the plant; in fact, she was the only female
skilled tradesperson for the first 1 % years she worked at the
plant, and the only female millwright for her first two years
there. According to Gilbert, her male coworkers immediately
started harassing her because she was a woman. Gilbert spent
her very first day working for Chrysler in training with other
millwrights. One millwright remarked that they had finally
been assigned a “bitch,” and another made a comment
suggesting that she should wear a dress to work and he would
hold a ladder for her to climb so that he could loo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0990%3A1. Public record. Not legal advice.