                           STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE OF HARISHKUMAR PATEL, by                                  UNPUBLISHED
HEMUBEN PATEL, Personal Representative,                          October 25, 2018

              Plaintiff-Appellee/Cross-Appellant,

                                                                 No. 337851
                                                                 Berrien Circuit Court
                                                                 LC No. 12-000336-NP
v

REINALT-THOMAS CORPORATION, d/b/a
DISCOUNT TIRE COMPANY,

              Defendant,

and

GOODYEAR TIRE & RUBBER COMPANY,

              Defendant-Appellant/Cross-
              Appellee.



Before: SAWYER, P.J., and STEPHENS and GADOLA, JJ.

PER CURIAM.

       Defendant, Goodyear Tire & Rubber Company (Goodyear), appeals as of right
challenging the orders of the trial court denying Goodyear’s motions for judgment
notwithstanding the verdict (JNOV) and for new trial. On cross-appeal, plaintiff Estate of
Harishkumar Patel, by Hemuben Patel, Personal Representative,1 appeals as of right challenging
the order of the trial court declining to set aside the non-economic damages cap. We affirm.




1
 On June 11, 2018, plaintiff’s decedent, Harishkumar Patel, died. This Court thereafter granted
plaintiff’s motion to substitute Estate of Harishkumar Patel, by Hemuben Patel, Personal


                                              -1-
                                             I. FACTS

        This is a product liability action involving a tire manufactured by Goodyear. The parties
do not dispute the underlying facts. Plaintiff’s decedent, Harishkumar Patel (Patel), was injured
in a single-vehicle automobile accident on US 31 in Berrien County on July 6, 2012. Patel was
driving his 1998 Nissan Pathfinder when the right rear tire’s tread separated (essentially, the
belts of the tire coming apart at high speed), causing his truck to roll over. Patel sustained spinal
injuries that rendered him quadriplegic. The tire in question was manufactured by Goodyear and
was one of four tires sold new to Patel and installed on his vehicle by defendant Discount Tire
Company (Discount Tire) on August 25, 2005. At the time of the accident, the tire had been
installed for almost seven years and had been driven approximately 45,000 miles.

        Plaintiff brought this action against Goodyear and Discount Tire, alleging negligent
production, gross negligence, and breach of implied warranty. The trial court thereafter granted
summary disposition to Discount Tire, dismissing it from the case. Plaintiff proceeded to trial
against Goodyear, which ended in a mistrial when the jury became deadlocked.

        The case was retried, and at the close of proofs in the second trial the case was submitted
to the jury on the counts of negligent production and breach of implied warranty. This time, the
jury found for plaintiff on both counts. The jury was asked by special interrogatory whether
Goodyear was grossly negligent, to which the jury answered “no.” The jury awarded plaintiff
the amount of $16,115,048, including $8,750,000 for non-economic damages.

        The trial court thereafter denied Goodyear’s motions for JNOV and for new trial. The
trial court also denied plaintiff’s motion to set aside the non-economic damages cap and reduced
the award of $8,750,000 for non-economic damages to $794,5002 in accordance with MCL
600.2946a(1). Goodyear now appeals to this Court, and plaintiff cross-appeals.

                                          II. ANALYSIS

                          A. MOTIONS FOR JNOV OR NEW TRIAL

         Goodyear contends that it is entitled to JNOV or to a new trial because the trial court
made a series of evidentiary errors that denied Goodyear a fair trial. This Court reviews de novo
a trial court’s decision to grant or deny a motion for JNOV, Hecht v Nat’l Heritage Academies,
Inc, 499 Mich 586, 604; 886 NW2d 135 (2016), while a trial court’s decision to grant or deny a
motion for new trial is reviewed for an abuse of discretion. Rental Props Owners Ass’n of Kent
Co v Kent Co Treasurer, 308 Mich App 498, 531; 866 NW2d 817 (2014). In reviewing de novo
a trial court’s decision to grant or deny a motion for JNOV, this Court views the evidence, and



Representative, as plaintiff in this action. Patel v Reinalt-Thomas Corp, unpublished order of the
Court of Appeals, entered July 26, 2018 (Docket No. 337851).
2
 The parties stipulated to the application of the non-economic damages cap in effect for 2015.
The amount of $794,500 is based upon plaintiff’s calculation as represented to the trial court.


                                                -2-
all legitimate inferences arising from the evidence, in a light most favorable to the nonmoving
party. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998).

                                  1. GATEKEEPING FUNCTION

        Goodyear first contends that the trial court abused its discretion by allowing plaintiff’s
expert, William Woehrle, to testify without properly applying the reliability factors of MCL
600.2955 to Woehrle’s testimony. Goodyear argues that the trial court thereby failed to exercise
its gatekeeping function and as a result, plaintiff’s theories were improperly submitted to the jury
without first being determined to be reliable. We disagree.

         We note initially that plaintiff argues that this issue is not preserved for review by this
Court. Before the first trial, Goodyear moved to exclude Woehrle’s testimony, challenging the
reliability and relevance of his testimony. The trial court denied Goodyear’s motion and
admitted the expert testimony. Before the second trial, the parties agreed to abide by the rulings
made before the first trial. Woehrle thereafter testified as plaintiff’s expert witness on the issues
of tire design and manufacture, as well as causation. At the conclusion of the second trial, the
jury entered a verdict for plaintiff, and Goodyear moved for JNOV and for new trial, renewing
its challenge to the admissibility of Woehrle’s testimony. The trial court denied both motions.
This issue is therefore preserved for review by this Court. See Elahham v Al-Jabban, 319 Mich
App 112, 119; 899 NW2d 768 (2017) (an issue is preserved if raised, addressed, and decided in
the trial court). This Court reviews a trial court’s decision to admit or exclude expert testimony
for an abuse of discretion, see Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010),
while reviewing any preliminary legal questions regarding admissibility de novo. People v Bass,
317 Mich App 241, 255; 893 NW2d 140 (2016). A trial court’s decision is not an abuse of
discretion if it falls within the range of principled outcomes. Edry, 486 Mich at 639.

         MRE 702 governs the admissibility of expert testimony and provides:

         If the court determines that scientific, technical, or other specialized knowledge
         will assist the trier of fact to understand the evidence or to determine a fact in
         issue, a witness qualified as an expert by knowledge, skill, experience, training, or
         education may testify thereto in the form of an opinion or otherwise if (1) the
         testimony is based on sufficient facts or data, (2) the testimony is the product of
         reliable principles and methods, and (3) the witness has applied the principles and
         methods reliably to the facts of the case.

       Under MRE 702, the trial court is required to “ensure that each aspect of an expert
witness’s testimony, including the underlying data and methodology, is reliable,” thereby
incorporating “the standards of reliability that the United States Supreme Court articulated in
Daubert3. . . .” Elher v Misra, 499 Mich 11, 22; 878 NW2d 790 (2016). Under the directive of
Daubert, the trial court must ensure that all scientific testimony is both relevant and reliable. Id.
at 22-23. Generally, it is not sufficient under MRE 702 to simply rely upon the expert’s


3
    Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).


                                                 -3-
background and experience to establish the reliability, and therefore the admissibility, of the
expert’s opinion. Id. at 23. “Not only must the plaintiff qualify his or her expert, he or she must
also show that the actual expert testimony offered is based on the factual predicate knowledge
required of the expert under MRE 703, which governs the bases of expert opinion testimony, and
MCL 600.2955.” Gonzalez v St John Hosp & Med Center, 275 Mich App 290, 305; 739 NW2d
392 (2007). “The overarching goal is ‘to make certain that an expert . . . employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.’ ” People v Kowalski, 492 Mich 106, 120; 821 NW2d 14 (2012) (citation
omitted).

       In addition to MRE 702, MCL 600.2955 provides, in relevant part:

       (1) In an action for the death of a person or for injury to a person or property, a
       scientific opinion rendered by an otherwise qualified expert is not admissible
       unless the court determines that the opinion is reliable and will assist the trier of
       fact. In making that determination, the court shall examine the opinion and the
       basis for the opinion, which basis includes the facts, technique, methodology, and
       reasoning relied on by the expert, and shall consider all of the following factors:

               (a) Whether the opinion and its basis have been subjected to scientific
       testing and replication.

              (b) Whether the opinion and its basis have been subjected to peer review
       publication.

              (c) The existence and maintenance of generally accepted standards
       governing the application and interpretation of a methodology or technique and
       whether the opinion and its basis are consistent with those standards.

               (d) The known or potential error rate of the opinion and its basis.

              (e) The degree to which the opinion and its basis are generally accepted
       within the relevant expert community. As used in this subdivision, “relevant
       expert community” means individuals who are knowledgeable in the field of
       study and are gainfully employed applying that knowledge on the free market.

              (f) Whether the basis for the opinion is reliable and whether experts in that
       field would rely on the same basis to reach the type of opinion being proffered.

               (g) Whether the opinion or methodology is relied upon by experts outside
       of the context of litigation.

        Our Supreme Court has specifically stated that “[c]onsistent with this [gatekeeper] role,
the court ‘shall’ consider all of the factors listed in MCL 600.2955(1).” Clerc v Chippewa Co
War Memorial Hosp, 477 Mich 1067, 1068; 729 NW2d 221 (2007). In its role as gatekeeper, the
trial court may exercise its discretion, but “may neither ‘abandon’ this obligation nor ‘perform
the function inadequately.’ ” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d
391 (2004) (citation omitted). The trial court’s gatekeeper role “mandates a searching inquiry,

                                                -4-
not just of the data underlying expert testimony, but also of the manner in which the expert
interprets and extrapolates from those data.” Id. at 782. Our Supreme Court has acknowledged,
however, that not all of the statutory factors will be relevant in every case. Elher, 499 Mich at
26.

        In this case, the trial court issued a detailed, seven-page written opinion discussing
Woehrle’s proposed testimony at length. The trial court identified each section of Woehrle’s
anticipated testimony and stated the publications and opinions concurring with Woehrle. In
doing so, the trial court essentially addressed factor (b) regarding whether the opinion and its
basis have been subjected to peer review publication, factor (e), the degree to which the opinion
and its basis are accepted within the relevant expert community, and also factor (f) regarding
whether the basis for the opinion is reliable and whether experts in the field rely on that same
basis. The trial court, however, did not specifically discuss each factor in its opinion. The trial
court then stated:

       I have considered all of the factors listed in MCL 600.2955(1)(a)(g) but I have not
       relied on any one of these factors as being determinative. Rather, I have weighed
       them and have been flexible, as directed by Daubert, in molding them to this case.
       I have not relied on any novel methodology or form of scientific evidence. I
       conclude that Mr. Woehrle’s testimony is based on sufficient facts and data and is
       the product of reliable principles and methods which Mr. Woehrle has applied
       reliably to the facts of this case. MRE 702.

         We conclude that the trial court’s ruling, while not explicit regarding every factor, was a
sufficiently “searching inquiry” under MRE 702 and MCL 600.2955. When, as here, the trial
court’s detailed opinion reflects consideration of the relevant factors and states that the trial court
has, in fact, considered all of the statutory factors, we conclude that the trial court was
sufficiently searching in its inquiry into the reliability of the expert’s testimony and did not abuse
its discretion in allowing the expert to testify.

                                       2. DESIGN DEFECT

        Goodyear next contends that Woehrle’s testimony regarding design defect was
inadmissible because it was irrelevant. Goodyear argues that plaintiff failed to establish the
requisite elements of a design defect, but Woehrle was nonetheless permitted to testify that the
design of the tire could have been improved by adding a “nylon cap ply.” We agree that the
testimony regarding the nylon cap ply was irrelevant, but conclude that its admission does not
warrant setting aside the jury’s verdict.

        In 1995, tort reform legislation was enacted that displaced application of common law
principles in certain product liability actions in Michigan. Curry v Meijer, Inc, 286 Mich App
586, 591; 780 NW2d 603 (2009), citing Greene v A P Products, 475 Mich 502, 507-508; 717
NW2d 855 (2006). The tort reform legislation included 1995 PA 249, by which our Legislature
amended the Revised Judicature Act (RJA), MCL 600.101 et seq. Under the amended RJA, a
product liability action is defined as one “based on a legal or equitable theory of liability brought
for the death of a person or for injury to a person or damage to property caused by or resulting
from the production of a product.” MCL 600.2945(h). “Production” is defined as “manufacture,

                                                 -5-
construction, design, formulation, development of standards, preparation, processing, assembly,
inspection, testing, listing, certifying, warning, instructing, marketing, selling, advertising,
packaging, or labeling.” MCL 600.2945(i).

       The amended RJA includes MCL 600.2946, which provides, in relevant part:

       (2) In a product liability action brought against a manufacturer or seller for harm
       allegedly caused by a production defect, the manufacturer or seller is not liable
       unless the plaintiff establishes that the product was not reasonably safe at the time
       the specific unit of the product left the control of the manufacturer or seller and
       that, according to generally accepted production practices at the time the specific
       unit of the product left the control of the manufacturer or seller, a practical and
       technically reasonable alternative production practice was available that would
       have prevented the harm without significantly impairing the usefulness or
       desirability of the product to users and without creating equal or greater risk of
       harm to others. An alternative production practice is practical and feasible only if
       the technical, medical, or scientific knowledge relating to production of the
       product, at the time the specific unit of the product left the control of the
       manufacturer or seller, was developed, available, and capable of use in the
       production of the product and was economically feasible for use by the
       manufacturer. Technical, medical, or scientific knowledge is not economically
       reasonable for use by the manufacturer if use of that knowledge in production of
       the product would significantly compromise the product’s usefulness or
       desirability.

        A plaintiff alleging product liability may proceed under a theory of either negligence or
warranty, but in either case must demonstrate that the defendant supplied a product that was
defective and that the defect caused the plaintiff’s injury. MASB-SEG Prop/Cas Pool, Inc v
Metalux, 231 Mich App 393, 399; 586 NW2d 549 (1998). But although a plaintiff may allege
negligence as part of a product liability action, negligence is actually a theory of liability, not a
separate claim. See Heaton v Benton Constr Co, 286 Mich App 528, 534-535; 780 NW2d 618
(2009).

        In this case, plaintiff’s complaint alleged negligent production, asserting theories of both
design defect and manufacturing defect. Plaintiff introduced at trial, through Woehrle’s
testimony, evidence that the tire had a number of manufacturing defects at the time that it left
Goodyear’s control, that those defects caused the tire’s tread separation, and that the tread
separation caused the accident. Woehrle testified that by looking at the tire, he could see that
“trapped air” during the manufacturing process caused a defect known as a “blow” in the tire,
and that the “blow” existed in the tire before it left the manufacturer. He also testified that there
were several defects in the belt assembly of the tire, and one area where there was no adhesion
between the rubber and the steel belt cables. He testified that he found “defects regarding how
thin the inner liner was,” which he testified is critical for belt durability, and he testified this
condition is called “carcass cord shadows,” and that this defect made the tire unsafe. He testified
that the tread separation that caused the accident occurred at the area of the “blow,” and that the
centrifugal force of the tire turning at highway speeds caused the loose wires of the belts to cause
the tread separation. He also testified that the tire had poor rubber to metal bonding, and that this

                                                -6-
defect contributed to the tire’s failure. He testified that Goodyear’s policy is that if during the
manufacturing process a tire has a “blow” or “carcass cord shadows,” Goodyear’s inspector is
supposed to scrap the tire.

        Woehrle further testified that the tire had “excess flash” (excess rubber that squeezes out
through junctions in the mold) that should have been trimmed when the tire was inspected by
Goodyear; he testified that the excess flash was not a cause of the tire’s catastrophic failure in
this case, but that the presence of the untrimmed excess flash indicated to Woehrle that the tire
had not been inspected. He testified that the tire also had “irregular breakers” which in this tire
was the presence of “off-center belts and poor splicing.” He further testified that the tire had an
irregular “step-off tread,” which he described as the area where the wider inner belt and narrower
outer belt meet, and which is supposed to be constant all around the tire to minimize strain on the
belt edges, which he testified is the area where tires come apart. Woehrle also testified that the
tire had “belt snaking” which leads to tread separations. The tire also had five “dog ears,” being
the place where the end of the belt is brought up to the beginning; to the extent that edges do not
line up there is a “dog ear” and, according to Woehrle, the dog ears on this tire contributed to the
failure of the tire.

        Woehrle further testified that Goodyear could have prevented the defectively
manufactured tire from leaving its control by having a better inspection system, namely, by
permitting its inspectors sufficient time to inspect each tire. Plaintiff thereby established a prima
facie case under MCL 600.2946(2) that (1) the tire was not reasonably safe at the time the
specific unit of the product left Goodyear’s control, and (2) a practical and technically feasible
alternative production practice was available that would have prevented the harm without
significantly impairing the tire’s usefulness or desirability and without creating equal or greater
risk of harm. Plaintiff therefore presented a prima facie case from which the jury could find
Goodyear liable under the statute on the theory of manufacturing defect.

         Woehrle also testified, however, that the tire’s design should have included a “nylon cap
ply,” which he testified is an additional layer in the tire that would make any tire more durable.
Woehrle conceded that he did not believe that the tire’s design was defective, and further
conceded that a nylon cap ply would not have prevented the tread separation, only that it would
have made the tire safer in the event of a tread separation. Woehrle was nonetheless permitted to
testify that the design of the tire could have been improved by adding a nylon cap ply. Goodyear
argues that because plaintiff did not demonstrate that the tire had a defective design, testimony
that the tire design could have been improved was irrelevant and inadmissible.

        To be admissible, evidence introduced at trial must be relevant. MRE 402. Evidence is
relevant if it has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” MRE 401. However, “[a]n error in the admission or the exclusion of evidence . . . is
not ground for . . . vacating, modifying, or otherwise disturbing a judgment or order, unless
refusal to take this action appears to the court inconsistent with substantial justice,” MCR
2.613(A), or affects a substantial right of an opposing party. Craig v Oakwood Hosp, 471 Mich
67, 76; 684 NW2d 296 (2004), citing MRE 103(a). In addition, a close evidentiary ruling
ordinarily cannot be an abuse of discretion. Barr v Farm Bureau Gen Ins Corp, 292 Mich App
456, 458; 806 NW2d 531 (2011).

                                                -7-
         Here, Woehrle’s testimony about the desirability of including the nylon cap ply in the
design of the tire was irrelevant because plaintiff did not demonstrate a defect in the tire’s
design. Indeed, Woehrle testified not that the failure to include a nylon cap ply was a design
defect, or that it would have prevented the tread separation, only that inclusion of a nylon cap ply
would have made the tire safer in light of the litany of manufacturing defects he identified. In
spite of this, there was ample evidence to support a finding of liability without the testimony
regarding the nylon cap ply. Woehrle testified about numerous manufacturing defects in the tire
and that those defects caused the tread separation that resulted in Patel’s injuries. Woehrle also
testified that had the tire been inspected, the manufacturing defects would have been apparent to
any inspector and the tire would have been scrapped under Goodyear’s own standards. In light
of the substantial evidence of liability on the theory of manufacturing defect, we conclude that
any error in the admission of testimony about the nylon cap ply was not sufficient ground for
disturbing the jury’s verdict. MCR 2.613(A).

                                      3. VERDICT FORM

      Goodyear also argues that the unproven design defect theory tainted the general verdict,
making it impossible to know whether the verdict was rendered upon a valid or invalid theory.
We disagree that the entire verdict has been rendered invalid.

         A new trial is not necessarily warranted when one of several alternative theories of
liability is found to have been improperly submitted to the jury; rather, a new trial is warranted
only when “it is impossible to know if the jury rejected the other theories advanced by plaintiff
and rendered judgment based on th[e] improperly submitted theory.” Tobin v Providence Hosp,
244 Mich App 626, 645; 624 NW2d 548 (2001). A jury verdict is not destroyed where it is
possible to conclusively establish that the verdict was based upon a properly submitted theory,
and any error in a verdict is confined to its unsound portions. Sudul v Hamtramck, 221 Mich
App 455, 458; 562 NW2d 478 (1997), citing Sahr v Bierd, 354 Mich 353, 365; 92 NW2d 467
(1958).

       In this case, the jury was presented with multiple theories of liability, namely, (1)
negligent production, encompassing theories of manufacturing defect and design defect, and (2)
breach of implied warranty. On the verdict form, with respect to the claim of negligent
production, the jury was asked “[w]as the defendant negligent?” and the jury responded “Yes.”
The verdict form also specifically asked the jury “[d]id the defendant breach an implied
warranty?” and the jury responded “Yes.” Goodyear now argues that it is not possible to know if
the jury found it liable on the properly submitted theory of manufacturing defect or the
improperly submitted theory of design defect, and that it is therefore entitled to a new trial.

        We note initially that a party may not raise a challenge on appeal based on an error which
the party deemed proper before the trial court. Hoffenblum v Hoffenblum, 308 Mich App 102,
117; 863 NW2d 352 (2014). And “[g]enerally, a party may not remain silent in the trial court,
only to prevail on an issue that was not called to the trial court’s attention.” Walters v Nadell,
481 Mich 377, 387; 751 NW2d 431 (2008). However, if a party has not agreed but has simply
failed to object, the party has not waived the issue but has instead forfeited the issue, which this
Court may review as an unpreserved assertion of error. People v Carter, 462 Mich 206, 215; 612
NW2d 144 (2000). Here, Goodyear did not object to the verdict form combining the negligence

                                                -8-
theories into a single question,4 and thereby forfeited its challenge by failing to object to the
verdict form at the trial court, and this issue is therefore unpreserved. See id.

       This Court has the discretion to review an unpreserved claim of error, but is not obligated
to do so. See Waters, 481 Mich at 387. This Court will review an unpreserved claim of error
when the failure to do so would result in manifest injustice, when consideration is necessary to
the proper determination of the case, or when the issue is a question of law and the facts
necessary for resolution of the issue have been fully presented. Smith v Foerster-Bolser Constr,
Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006). Our Supreme Court has cautioned,
however, that appellate courts should exercise their discretion to review unpreserved issues
sparingly and only when exceptional circumstances dictate that review is warranted. Napier v
Jacobs, 429 Mich 222, 233; 414 NW2d 862 (1987).

       Here, we find it unnecessary to reach this unpreserved issue in light of the jury’s verdict
on the breach of implied warranty count. Plaintiff argues that even if Goodyear is correct in its
challenge to the verdict on the negligence count, plaintiff nonetheless prevailed on the count for
breach of implied warranty, and reversal is therefore unwarranted. We agree.

        The theories of negligence and breach of implied warranty are separate causes of action
with different elements, although in some factual contexts they involve the same elements and
proofs. Bouverette v Westinghouse Elec Corp, 245 Mich App 391, 395; 628 NW2d 86 (2001),
citing Lagalo v Allied Corp, 457 Mich 278, 287 n 11; 577 NW2d 462 (1998). And generally,
“[a] plaintiff pursuing a claim of breach of implied warranty is not required to identify the
precise defect in the product” or “whether the defect was caused by ‘design, material, assembly
or a combination. . . .’ ” Kenkel v Stanley Works, 256 Mich App 548, 557-558; 665 NW2d 490
(2003).
        In Lagalo, our Supreme Court stated:
        Since a defective product can reflect negligence in the design or manufacturing
        process, and can also give rise to a breach of implied warranty, the two theories of
        liability are often seen as closely related. However, we have noted on several
        occasions that these indeed are separate causes of action with different elements.
        Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88-91; 273 NW2d 476 (1979);
        Prentis v Yale Mfg Co, 421 Mich 670, 692-693; 365 NW2d 176 (1984); Granger
        at 11, n 7; Gregory v Cincinnati, Inc, 450 Mich 1, 12; 538 NW2d 325; 47 ALR5th
        877 (1995). The argument offered in this case by defense counsel well illustrates
        the distinction outlined in Prentis, where we said that “the negligence theory
        generally focuses on the defendant’s conduct, requiring a showing that it was
        unreasonable, while warranty generally focuses upon the fitness of the product,
        irrespective of the defendant’s conduct.” 421 Mich 692. Sale of a defective
        product can breach an implied warranty, but it would not reflect negligence in the
        design or manufacturing process if the producer has acted reasonably at every



4
  The verdict forms used in the first trial and the second trial were virtually identical and the
record indicates that at neither trial did Goodyear object to the general nature of the verdict form.


                                                 -9-
       stage. Conversely, a negligently manufactured product would not breach an
       implied warranty if the nature or timing of its failure were not inconsistent with
       the terms of the implied warranty. [Lagalo, 457 Mich at 287 n 11.]

         Our Supreme Court has stated that “[w]hen proceeding under a theory of implied
warranty, a design defect is established by proof that the product is not reasonably safe for the
uses intended, anticipated, or reasonably foreseeable.” Prentis v Yale Mfg Co, 421 Mich 670,
692-693; 365 NW2d 176 (1984). Similarly, this Court has stated that when, as in this case, a
product liability action is premised upon a breach of implied warranty of fitness, “the plaintiff
must prove that a defect existed at the time the product left the defendant’s control, which is
normally framed in terms of whether the product was ‘reasonably fit for its intended, anticipated
or reasonably foreseeable use.’ ” Bouverette, 245 Mich at 396 (quotation marks and citations
omitted). This approach is consistent with the traditional understanding of common law product
liability, which is a form of strict liability in which a plaintiff need only prove the defective
nature of the product when it left the manufacturer’s hands and that the defect caused the
plaintiff’s injuries. See, e.g., Ayyash v Henry Ford Health Systems, 210 Mich App 142, 144-145;
533 NW2d 353 (1995) (noting the strict liability nature of products liability historically).
         In this case, Goodyear argues that plaintiff’s failure to prove a design defect potentially
tainted the verdict regarding the breach of implied warranty count as well as the negligence
count. However, the purpose of a special verdict is to permit courts to see what the jury has
determined and to preserve the valid portions of a verdict when other portions are found to be
invalid. As noted, a new trial is not necessarily warranted when one of several alternative
theories of liability is found to have been improperly submitted to the jury; rather, a new trial is
warranted only when “it is impossible to know if the jury rejected the other theories advanced by
plaintiff and rendered judgment based on th[e] improperly submitted theory.” Tobin, 244 Mich
App at 645. Here, the verdict form specifically asked the jury regarding the breach of implied
warranty count and the jury specifically found Goodyear liable on that count. We conclude that
the breach of implied warranty theory in this case was a separate count properly submitted to the
jury and the validity of the verdict on that count was not affected by the improper proofs on the
negligence count. This is because it matters not whether the breach of implied warranty claim
was premised upon design defect, manufacturing defect, or some combination of the two, as
Goodyear’s negligence was irrelevant to this count; the only two questions the jury needed to
resolve were whether the tire was defective when it left Goodyear’s control and whether such
defect or defects caused plaintiff’s decedent’s injuries. The jury clearly answered both questions
in the affirmative.
                    4. TESTIMONY REGARDING IMPACT AS A CAUSE

        Goodyear next contends that Woehrle’s testimony ruling out impact as a cause of the
tread separation was not admissible because it is contrary to the consensus in the field and was
not supported by reliable methodology. We disagree.

        At trial, Woehrle testified regarding whether the tire tread separation could have been
caused by an impact to the tire, such as driving through a pot hole. Woehrle opined that tread
separation can never occur as the result of impact. On cross-examination, Goodyear’s counsel
questioned Woehrle thoroughly about publications in which other experts opine that impact can
be a cause of tire tread separation. Woehrle testified consistently that although he recognized the

                                               -10-
authoritativeness of the various publications, he disagreed with their conclusion that a tire tread
separation can be caused by impact. Goodyear argues that it was error for the trial court to admit
Woehrle’s testimony because Woehrle’s opinion was not sufficiently supported.

        As stated, MRE 702 governs the admission of expert testimony and requires, essentially,
that the witness’ testimony (1) is based on sufficient facts or data, (2) is the product of reliable
principles and methods, and that (3) the witness has applied the principles and methods reliably
to the facts of the case. Any challenge to the credibility of the expert’s opinion, however, such
as the opposing party’s disagreement with an expert’s opinion or interpretation of the facts,
relates to the weight of the testimony, and not its admissibility. Surman v Surman, 277 Mich
App 287, 309; 745 NW2d 802 (2008). “Gaps or weaknesses in the witness’ expertise are a fit
subject for cross-examination, and go to the weight of his testimony, not its admissibility.”
Wischmeyer v Schanz, 449 Mich 469, 480; 536 NW2d 760 (1995), quoting People v Gambrell,
429 Mich 401, 408; 415 NW2d 202 (1987). Because the weight to be given expert testimony is
for the jury to decide, Dawe v Bar-Levav & Assoc, PC (On Remand), 289 Mich App 380, 401;
808 NW2d 240 (2010), the trial court in this case did not err by admitting Woehrle’s testimony
about impacts.

                                  5. THE FIRESTONE CHART

         Goodyear next contends that it is entitled to a new trial because the trial court erroneously
permitted the admission of the evidence referred to by the parties as the Firestone Chart. The
Firestone Chart, a one-page chart entitled “Tread Separation Rate (service condition): Recalled
Tires Only” is part of a National Highway Traffic Safety Administration document, and relates
to tires manufactured by Firestone (not Goodyear) that were subject to recall in 2000. The trial
court permitted plaintiff to use the Firestone Chart to counter an anticipated argument by
Goodyear that tire tread separations do not occur late in the life of a tire. Over Goodyear’s
objection, the trial court determined that the chart was admissible, but only on the issue of
whether Goodyear had “notice” that tires with defects will fail later in the life of the tire. The
chart, however, was irrelevant. Woehrle testified that the defect that was present in the Firestone
tires, and that was the subject of the Firestone Chart, was not the same as the manufacturing
defect present in the Goodyear tire in this case. The Firestone Chart therefore did not
demonstrate notice to Goodyear. However, the chart was not the major focus of plaintiff’s case
and there was ample evidence of the manufacturing defects in the Goodyear tire to support the
jury verdict on the manufacturing defect and the breach of implied warranty counts regardless of
the Firestone Chart. Once again, we consider an evidentiary error as harmless unless declining
to grant a new trial, or to otherwise disturb a judgment, appears inconsistent with substantial
justice. Here, we conclude that any error in admitting the Firestone Chart was minimal and not a
ground for disturbing the jury’s verdict.

                                    6. THE BEAD BARCODE

       Goodyear next contends that the trial court erred in admitting evidence regarding what
the parties term the “bead barcode.” According to Goodyear, during the manufacture of
Goodyear tires, a bead barcode is assigned to each tire and a sticker bearing the bead barcode is
placed on each tire to track the tire through the various stages of manufacturing. After the tire is
manufactured, the barcode is assigned to a new tire and the previous data is overwritten. During

                                                -11-
discovery, Goodyear explained that the bead barcode that had been assigned to the tire in this
case during manufacturing was soon after reassigned and any information related thereto had
been overwritten long before Patel’s injuries occurred.

        Before the second trial, Goodyear moved to prevent plaintiff from introducing evidence
of the bead barcode and from arguing “spoliation” of the information related to the bead barcode.
The trial court’s ruling on the motion is not entirely clear, but the trial court appears to have
determined that the parties were permitted to refer to the fact that the bead barcode no longer
existed but were not permitted to imply that the bead barcode information had been intentionally
destroyed by Goodyear for the purpose of hiding information. Plaintiff’s counsel nonetheless
broached the subject of the bead barcode during trial and during closing argument, suggesting
that Goodyear intentionally made the bead barcode information unavailable.

       Again, evidentiary error is not ground for disturbing a judgment unless refusal to do so is
inconsistent with substantial justice. MCR 2.613(A). Here, the bead barcode was not the major
focus of plaintiff’s case and there was ample evidence to support the jury verdict even absent the
testimony regarding the bead barcode. Any error in the admission of testimony or argument
regarding the bead barcode therefore was not ground for disturbing the jury’s verdict.

                          7. PLAINTIFF’S COUNSEL’S REMARKS

        Lastly, Goodyear argues that despite the trial court’s instructions, plaintiff’s counsel
made improper comments throughout the trial and during closing argument that were intended to
inflame the jury and to depict Goodyear as a greedy corporation attempting to cheat the helpless
plaintiff. Although Goodyear objected repeatedly during the questioning of witnesses, there is
no indication that Goodyear objected during plaintiff’s closing argument.

        Juries are routinely instructed that an attorney’s arguments and remarks are not evidence
to be considered by the jury. See, e.g., Zaremba Equip, Inc v Harco Nat’l Ins Co, 302 Mich App
7, 24-25; 837 NW2d 686 (2013). Further, “[a]n attorney’s comments do not normally constitute
grounds for reversal unless they reflect a deliberate attempt to deprive the opposing party of a
fair and impartial proceeding.” Id. at 21. “Reversal is required only where the prejudicial
statements reveal a deliberate attempt to inflame or otherwise prejudice the jury, or to deflect the
jury’s attention from the issues involved.” Id. (quotation marks and citation omitted).

        In this case, although plaintiff’s counsel’s comments were at times inappropriate, the
comments were not so inappropriate as to demonstrate a deliberate attempt to prejudice the jury,
and do not go beyond the zealous advocacy seen in numerous cases. For example, during
closing argument plaintiff’s counsel argued that “Goodyear has the resources to hire the best
attorneys and experts who have made a career out of coming into courts like this one and
testifying,” and “[Goodyear] wants other people to pay the price for their negligence,” and “[t]he
men at Goodyear refuse to listen, but you have listened, and now you give the Patels the
consolation of justice.” The trial court, however, instructed the jury that “[t]he lawyer’s
statements and arguments are not evidence. They are only meant to help you understand the
evidence and each side’s legal theories. . . . You should only accept things the lawyers say that
are supported by the evidence or by your own common sense and general knowledge.” The trial
court further instructed the jury that “[t]he corporation defendant in this case is entitled to the

                                               -12-
same fair and unprejudiced treatment as an individual would be under like circumstances, and it
is your duty to decide the case with the same impartiality you would use in deciding a case
between individuals.” Because this Court presumes that juries follow their instructions and that
the trial court’s instructions to the jury cure most errors, id. at 25, we conclude that the remarks
of plaintiff’s counsel in this case do not warrant reversal.

                          B. THE NON-ECONOMIC DAMAGES CAP

       The jury awarded a verdict for plaintiff and against Goodyear in the amount of
$16,115,048, including $8,750,000 for non-economic damages. The trial court reduced the
award of $8,750,000 for non-economic damages to $794,500 in accordance with the damages
cap provided in MCL 600.2946a(1). On cross-appeal, plaintiff contends that the trial court erred
by not setting aside the damages cap imposed under MCL 600.2946a in light of the provisions of
MCL 600.2949a. We disagree.

        MCL 600.2946a provides a limit on non-economic damages in a product liability action.
Whether the non-economic damages cap of MCL 600.2946a applies in a given case is a question
of law that we review de novo. See Jenkins v Patel, 471 Mich 158, 162; 684 NW2d 346 (2004)
(application of statutory damages cap in a medical malpractice context is a question of law
reviewed de novo). MCL 600.2946a provides, in pertinent part:

       (1) In an action for product liability, the total amount of damages for
       noneconomic loss shall not exceed $280,000.00, unless the defect in the product
       caused either the person’s death or permanent loss of a vital bodily function, in
       which case the total amount of damages for noneconomic loss shall not exceed
       $500,000.00. On the effective date of the amendatory act that added this section,
       the state treasurer shall adjust the limitations set forth in this subsection so that the
       limitations are equal to the limitations provided in section 1483
       [MCL 600.1483]. . . .

                                                ***

       (3) The limitation on damages under subsection (1) for death or permanent loss
       of a vital bodily function does not apply to a defendant if the trier of fact
       determines by a preponderance of the evidence that the death or loss was the
       result of the defendant’s gross negligence, or if the court finds that the matters
       stated in section 2949a [MCL 600.2949a] are true.

Thus, under MCL 600.2946a(3), a plaintiff avoids the damages cap of MCL 600.2946a(1) if the
defendant was grossly negligent, or if the trial court finds that “the matters stated in section
2949a are true.” In this case, the jury was asked by special interrogatory whether Goodyear was
grossly negligent and the jury responded “no.” Plaintiff therefore cannot avoid the non-
economic damages cap unless “the matters stated in section 2949a are true.”
MCL 600.2946a(3). MCL 600.2949a provides:

       In a product liability action, if the court determines that at the time of manufacture
       or distribution the defendant had actual knowledge that the product was defective
       and that there was a substantial likelihood that the defect would cause the injury
                                                 -13-
       that is the basis of the action, and the defendant willfully disregarded that
       knowledge in the manufacture or distribution of the product, then sections
       2946(4), 2946a, 2947(1) to (4), and 2948(2) [MCL 600.2946(4), MCL 600.2946a,
       MCL 600.2947(1) to (4), and MCL 600.2948(2)] do not apply.

       In this case, the trial court determined that plaintiff had not established the elements of
MCL 600.2949a because that statute requires “actual knowledge.” The trial court reasoned that
by choosing the statutory language “actual knowledge,” the Legislature mandated that
constructive knowledge was not sufficient. The trial court stated in its opinion:

       Plaintiff ultimately cannot show that Defendant Goodyear had, in 2005 when
       Plaintiff’s tire was manufactured, actual knowledge that the Plaintiff’s tire was
       defective and actual knowledge of a substantial likelihood it would lead to the
       type of injury suffered by Plaintiff. There is no evidence from which this Court
       can find that Defendant Goodyear had actual knowledge of a substantial
       likelihood that the load range C light truck tire on Plaintiff’s vehicle would suffer
       a tread separation. Plaintiff’s own tire expert, Mr. Woehrle, testified that it was
       his opinion that a nylon cap ply would not prevent, only protect against, tread
       separations. The record supports that it was Mr. Woehrle’s position that a tire
       without a nylon cap ply could be safe. It was the other conditions he found to
       exist in this tire, the manufacturing defects concerning which Plaintiff cannot
       establish Defendant Goodyear had actual knowledge as indicated above, that in
       his opinion caused the tire to fail without the nylon cap ply.

        Plaintiff contends that the trial court erred in this determination by considering only the
specific tire in this case and not the entire product line produced by Goodyear. Plaintiff argues
that Goodyear knew that a tire with a manufacturing defect could cause an accident in which a
person could experience serious injury, and that Goodyear nonetheless failed to properly inspect,
which Goodyear knew eventually would result in defective tires entering the stream of
commerce. Plaintiff thus urges this Court to read the statutory language that imposes liability if
Goodyear “had actual knowledge that the product was defective” to impose liability if Goodyear
“should have known that there could be a defective product in the product line.” We decline to
so read the statute. MCL 600.2949a does not specify whether the term “the product” refers to a
specific unit or the entire product line. We agree with the trial court, however, that “actual
knowledge” is not the same as constructive knowledge or imputed knowledge. The trial court
therefore did not err in concluding that plaintiff did not establish the criteria required by MCL
600.2949a for setting aside the noneconomic damages cap.

       Affirmed.



                                                             /s/ David H. Sawyer
                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Michael F. Gadola




                                               -14-
