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569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861)

evidence different from that set forth in Smith v. Grange Mut. Fire Ins. Co. of Michigan, 234 Mich. 119, 208 N.W. 145 (1926). We affirm the circuit Court of Appeals of Michigan. court judgment entered in this case. Misti S. LOPEZ, Plaintiff-Appellant, v. I GENERAL MOTORS CORPORATION, Defendant- Factual Background Appellee. Plaintiff's lawsuit arises out of a single-car accident that occurred in the dark early morning Docket No. 164400. hours of January 10, 1989. Plaintiff was driving a Released for Publication Oct. 8, 1997. 1987 two-door Chevrolet Chevette hatchback manufactured by defendant General Motors Corporation. Ms. Lopez drove her Chevette to an **863 Before HOLBROOK, Jr., P.J., and intersection with a stop sign and thereafter into the MacKENZIE, GRIBBS, FITZGERALD, side of a freight train parked across a subsequent HOEKSTRA, MARKMAN and YOUNG, JJ. intersection. Plaintiff estimated that she may have been traveling as fast as twenty-one or twenty-two miles an hour at impact.FN1 Although plaintiff was YOUNG, Judge. wearing the lap and shoulder belt supplied by the Plaintiff brought suit against defendant alleging defendant with the automobile, she sustained negligence and breach of an implied warranty as a substantial facial and upper-body injuries as a result result of injuries she sustained in an accident in an of the accident. Plaintiff brought a product liability automobile manufactured by defendant. Plaintiff action against defendant, alleging that she sustained appealed from a judgment of no cause of action her injuries because the seat belt restraint system in entered by the Shiawassee Circuit Court following a her Chevette failed on impact. jury verdict that defendant was not negligent and did not breach an implied warranty. A panel of this Court reversed and remanded for a new trial because of the FN1. There is conflict in the record admission and use of two videotapes depicting crash concerning the speed at which plaintiff tests conducted by defendant. Lopez v. General struck the train. Defendant's experts opined Motors Corp., 219 Mich.App. 801, 555 N.W.2d 875 that plaintiff was traveling twenty-five miles (1996). However, two members of that panel an hour at impact. concurred in the reversal solely because they were constrained by Administrative Order No.1996-4 to A lengthy trial ensued. As noted, the jury follow Sumner v. General Motors Corp., 212 returned a verdict of no cause of action in favor of Mich.App. 694, 538 N.W.2d 112 (1995). defendant.FN2 *622 Of central importance to this appeal was the trial court's admission of two Pursuant to the conflict invoked by the videotapes of crash tests conducted by defendant on concurring members of the Lopez panel under Chevettes-so-called “sled” and “frontal barrier” tests FN3 Administrative Order No.1996-4, the members of this -and the use of these tests by defendant's experts Court were polled and a majority voted to convene during trial. this conflict panel. On December 30, 1996, an order was entered convening this panel and vacating the FN2. The verdict was returned by special Lopez opinions. verdict form, on which the jury specifically found no negligence or breach of warranty. *621 For the reasons stated below, we overrule Sumner insofar as it establishes an evidentiary rule FN3. The two tests (and their similarity and concerning the introduction of demonstrative dissimilarity to the facts of plaintiff's

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861) collision) were described in significant impact, causing plaintiff's face and body to strike the detail in the lead opinion of Lopez, supra. steering *623 wheel.FN4 Plaintiff's theory was For the sake of completeness, we briefly supported by her expert witness, Henry Kowalski. describe the general features of the two tests here. FN4. Plaintiff claimed that her injuries were “enhanced” because she received more In the sled test, a vehicle body is extensive injuries due to the seat belt's accelerated in reverse to simulate a frontal failure than she would have otherwise collision. The test simulated a thirty mile received in the collision. Plaintiff assigns per hour frontal impact and was run on a error to the instructions that the trial court Chevette vehicle body similar to plaintiff's gave to the jury concerning this enhanced- automobile. The movements of the injury claim. This issue is addressed in § III dummies in the vehicle seats can be of this opinion. observed and, although restrained in a three point lap and shoulder seat belt Defendant's theory at trial was that there was no similar to the one in plaintiff's vehicle, the defect in the restraint system, that it operated “driver” dummy's head and upper body properly, and that the type of injuries plaintiff make contact with the steering wheel in received were of a kind to be expected in accidents the simulated impact. The sled test shown such as plaintiff's. Defendant's position was to the jury was conducted in 1986 for the supported by expert witnesses Karen Morley and purpose of testing seat belt systems. David Peruski. Morley testified FN5 as an expert in occupant kinematics (body movements) and The crash test, conducted in 1977, biomechanics (how bodies react to forces). Peruski involved a speed of 30.7 miles an hour. testified about the operation of the restraint system The dummies in the crash test were four and the retractor mechanism. Peruski testified with inches taller and fifty pounds heavier than the aid of the videotapes of the sled test and the plaintiff. The objective of the test was to frontal-barrier crash test. The videotapes showed the analyze the crash performance of a movement of dummies in test vehicles during the vehicle with fenders of reduced gauge crashes. The heads of the “driver” dummies in the metal (in the crash test shown to the jury, two tests could be seen to strike the steering wheel the gauge of the metal fenders of the test even though they were restrained by a three-point lap vehicle was reduced by 0.003 inches). The and shoulder safety belt system. At trial, after being crash test involved a direct frontal crash, ruled qualified to do so, Peruski also testified about whereas it was acknowledged that there occupant kinematics. He did so again with specific was some angle in the impact of plaintiff's reference to the videotaped tests. It was the opinion collision. This videotape clearly showed of both Peruski and Morley that the restraint system “involvement” between the driver functioned properly and that plaintiff's injuries were dummy's head and the steering wheel. The consistent with a properly functioning restraint restraint system involved was comparable system. to that in plaintiff's vehicle. FN5. Morley's videotaped deposition was **864 II played to the jury because she was The Nature of the Parties' Evidentiary Dispute unavailable for trial, having recently At trial, plaintiff's liability theory was that, delivered a baby. because of an alleged manufacturing defect in the retractor mechanism of the Chevette's shoulder belt At trial and on appeal, plaintiff primarily restraint system, the shoulder belt failed initially to challenges the admission of the two videotapes of the engage properly, or if it engaged initially, it broke on test *624 crashes. Before the commencement of

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861) defendant's case in chief, the trial court addressed foundation. plaintiff's challenges to the admission of the two videotapes in response to plaintiff's oral motion in FN8. See n. 3. On appeal, plaintiff cites and limine. Defendant offered the two tapes as business relies upon principally the following defense records, asserting that they were relevant to the issue admissions of dissimilarity between the tests of due care, demonstrating that defendant tested its and plaintiff's accident: seat belt system. Defendant further asserted that the tests were critical as necessary aids to the testimony (1) The crash test involved a modified of defendant's experts concerning general principles model of the Chevette that was run into a of occupant kinematics in a frontal crash. Defendant barrier at thirty miles an hour, a speed at acknowledged that the two tests were conducted least four to six miles faster than the before plaintiff's accident and conceded that the tests evidence suggested that plaintiff's car was were not intended as re-creations of the accident at traveling on impact. issue, but were offered as demonstrative evidence that was “substantially similar” to that accident.FN6 (2) The crash-test model had fenders that were of thinner-gauge metal than those of FN6. Defendant further conceded that there plaintiff's vehicle. were differences between the conditions of the two crash tests and plaintiff's accident. Defendant's counsel argued during the (3) Plaintiff weighed 125 pounds and was motion in limine that “it isn't necessary to 5' 3” tall, whereas the crash-test dummy support our experts' opinions and support weighed 175 pounds and was 5' 7” tall. our defense to have a test that's, you know, as your Honor says, a complete (4) The disparity between plaintiff's duplication.... These tests absolutely physical characteristics and those of the demonstrate to the jury and the Court what dummy resulted in an increase of force on the kinematics are in an accident like this. the restraint system in the crash test twice Mr. Kowalski [plaintiff's expert] agrees that that involved in plaintiff's collision. they would be helpful. Mr. Peruski and Miss Morley rely on them for purposes of their FN9. On appeal, plaintiff asserts as an opinion. And they should come in subject to additional basis of objection, which it failed whatever cautionary instructions may be to raise at trial, that the tests did not appropriate.” (Emphasis added.) accurately reflect the scientific principles involved in this case. This additional In the circuit court, plaintiff objected to the argument is largely refuted by plaintiff's admission of the videotapes of the tests on several own expert who conceded that the tests grounds: (1) lack of foundation,FN7 (2) the tests were would be the best way to illustrate physical not relevant because they did not replicate the principles involved in a collision and that he identical conditions of **865 plaintiff's collision,FN8 would “love to see” defendant's tests. and (3) the results of the tests *625 were inadmissible, prejudicial hearsay.FN9 The trial court found that the videotapes were proper business records under MRE 803(6); that, FN7. Defendant did not present a “record because the defendant was offering the videotapes as custodian” to testify about these business demonstrative evidence rather than as a re-creation of records or anyone who actually performed, the plaintiff's accident, the dissimilarities between the or was involved in creating, the two tests. tests and the accident went not to the admissibility of Instead, defendant relied primarily upon its the evidence, but to its weight; and that the evidence expert, Peruski, to lay the necessary was relevant and not more prejudicial than probative. Accordingly, the court allowed admission of the

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861) videotapes without limitation, and plaintiff requested evidence is admissible if it bears “substantial no limiting instruction. similarity” to an *628 issue of fact involved in a trial.FN13 Id. at 126, 208 N.W. 145. As in this case, As stated, this Court initially reversed, Smith involved a challenge to the introduction of concluding that the tests violated the rule propounded experimental evidence that, while similar to the in Sumner, and held as follows: circumstances involved in the trial, did not faithfully replicate those conditions. The defense was in essence using the tests to prove that the severity and extent of the plaintiff's FN13. It appears that plaintiff, the panel in injuries were the normal results of a frontal Sumner, and the lead opinion in Lopez collision. The record establishes that the videotapes confuse the differing standards applicable to were used well beyond the illustration of general the admission of evidence intended as a re- scientific principles and their admission was error creation of an event and evidence that is [sic]. Under these circumstances, I am unable to intended to illustrate principles associated conclude *626 that the videotapes of the tests were with the event. properly admitted as limited [ FN10] to establishing general principles of occupant kinematics or as In Kaminski v. Wayne Co. Rd. Comm'rs, having been conducted under conditions 370 Mich. 389, 121 N.W.2d 830 (1963), substantially similar to plaintiff's accident. our Supreme Court first addressed the admission standard associated with “re- FN10. Contrary to the suggestion in the creation” evidence. There, the Court first Lopez lead opinion, the tests were admitted announced an accuracy rule, requiring, as without limitation. a precondition to admission of recreation evidence, that there be a showing that the Crucial to the liability issue was the question evidence reasonably and faithfully whether under these accident conditions, a properly reproduces the conditions that existed at functioning seat belt would be expected to restrain the time in question. Id. at 395-397, 121 this plaintiff to the extent that she would not have N.W.2d 830. Neither in Kaminski nor in suffered the injuries she did. The experts disagreed any other decision that we are aware of with regard to this issue. However, defendant's has the Supreme Court overruled the experts' testimony was buttressed by the videotapes different principles it laid down in Smith depicting the dummies of a dissimilar size, for the admission of demonstrative traveling at a dissimilar speed, hitting the steering evidence. wheel. Like the Court did in Sumner, supra, I conclude that the evidence addressed a major issue The Kaminski “faithful reproduction” in the case and was visually compelling. Therefore, standard has, in recent years, been the admission of the tapes was not harmless. [ described as requiring “virtual identity” Lopez, supra at 812-813, 555 N.W.2d 875 between the proffered evidence and the (emphasis added).] event that evidence purports to recreate. See Green v. General Motors Corp., 104 * * * Mich.App. 447, 449-450, 304 N.W.2d 600 (1981). As described in Green, the distinction between demonstrative B. Demonstrative Evidence: The Rule of Smith v. evidence and re-creation evidence, and the Grange Mut. Fire Ins. Co. standards of admission associated with Plaintiff's remaining attacks on the admissibility each, is important. Id. at 450, 304 N.W.2d of the videotapes are essentially assaults on the rule 600. When evidence is offered to show established by our Supreme Court in Smith v. Grange how an event occurred, the focus is upon Mut. Fire Ins. Co., supra, that demonstrative

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861) the conditions surrounding that event. Id. discretionary ruling of the trial court.” Id. at 126, 208 Consequently, it is appropriate that those N.W. 145. The Court concluded that the evidence conditions be faithfully replicated. Id. By could aid the jury in making its determination contrast, when the evidence is being regarding the challenged identification testimony. offered not to re-create a specific event, Id.FN16 but as an aid to illustrate an expert's testimony concerning issues associated FN14. The defendant's witness testified that with the event, then there need not be as he observed the plaintiff in the dark at 2:00 exacting a replication of the circumstances a.m. from a distance of approximately thirty of the event. Id. yards removing personal effects from her home. The witness further testified that he We believe that the Sumner panel and the was later awakened at 5:00 a.m. by the Lopez lead opinion failed to distinguish disturbance caused by the fire at the between these two forms of evidence and plaintiff's home. Id. their respective purposes, and thus failed to apply the appropriate rule governing FN15. Some of the test observations were admission. To the extent that the decisions made after criminal arson proceedings were of those two panels can be read as commenced against the plaintiff, two were evincing a concern for confusion on the made after the trial against the defendant part of the jury regarding the purpose for had commenced. Id. which the evidence was admitted, the proper remedy is a limiting instruction FN16. Focusing as it does upon the pursuant to MRE 105, not exclusion of importance that challenged demonstrative or otherwise admissible evidence. experimental evidence enable a jury more intelligently to consider the issues presented, [4] The plaintiff in Smith sued to recover on a the Smith “substantial similarity” rule is best fire insurance policy. The defense theory was that the understood as establishing a threshold plaintiff intentionally set the fire, and the defendant requirement of relevancy that is now produced a witness who testified that the plaintiff embodied in our codified rules of evidence *629 was acting in a suspicious manner just before in MRE 401 and 402. Unless the FN14 the fire at her home. Id. at 124, 208 N.W. 145. A demonstrative evidence bears enough significant issue in the case was whether the similarity to some factual circumstance at insurance company's witness could have seen the issue in the trial, that evidence is not plaintiff at a certain distance in the dark on **867 the relevant because it advances no germane night of the fire as that witness had testified. In an factual proposition that can meaningfully effort to challenge this evidence, the plaintiff assist the trier of fact. introduced the testimony of several persons to demonstrate the limited capacity for accurate *630 Citing several annotations in support of its identification of a person at night. Id. at 124-125, 208 holding, the Smith Court quoted the following: N.W. 145. However, the “test” observations of these witnesses were made on different nights, under differing moon illuminations, and at locations “ It is not necessary, however, that the different from the one at issue at trial. Id. at 125-126, conditions should be exactly identical, but a 208 N.W. 145.FN15 The Supreme Court recognized reasonable or substantial similarity is sufficient, that the experimental observations of the various and the lack of exact identity affects only the plaintiff witnesses were made under differing weight and not the competency of the evidence, conditions, but found that there was “sufficient provided always that there is such a degree of similarity in the conditions under which the similarity that evidence of the experiments made experimental observations were made to support the will accomplish the desideratum of assisting the

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861) jury to an intelligent consideration of the issues of People v. Ray, 2 Mich.App. 623, 630-631, fact presented.” [Id., quoting 22 CJ, p 759.] 141 N.W.2d 320 (1966).

The Supreme Court has never altered the *631 1. The Sumner Rule demonstrative evidence rule propounded in Smith.FN17 [5] Our Court in Sumner announced a new rule Thus, until Sumner, consistent with the obligation of limiting the admission of demonstrative evidence, inferior courts to follow the law propounded by our one that we conclude is in fundamental conflict with Supreme Court, Boyd v. W G Wade Shows, 443 Mich. Smith. In Sumner, as in this case, the defendant was 515, 523, 505 N.W.2d 544 (1993), this Court's sued for breach of implied warranties and negligence. decisions since Smith have faithfully drawn a The plaintiff's injuries were the result of a head-on distinction between evidence which was offered only collision with another automobile. Sumner, supra at as demonstrative evidence and evidence which was 695-696, 538 N.W.2d 112. There, General Motors offered as a re-creation of the event at issue in the also moved and was allowed to introduce videotapes case.FN18 of crash tests of vehicles to illustrate general physical principles supporting its defense.**868 Id. at 696, FN17. See, e.g., People v. Davis, 343 Mich. 538 N.W.2d 112. In so doing, the defense denied that 348, 367-368, 72 N.W.2d 269 (1955). the tests were intended as a re-creation of the accident in that case, but applied the principles FN18. See, e.g., Osner v. Boughner, 180 illustrated in the test videotapes to the facts in Mich.App. 248, 257-262, 446 N.W.2d 873 controversy in that case. Id. The Sumner panel held (1989); People v. England, 176 Mich.App. that the defendant's application of the general 334, 340-341, 438 N.W.2d 908 (1989), aff'd. principles to the particular facts of the accident at on different grounds 436 Mich. 305, 462 issue was improper. N.W.2d 310 (1990); Jenkins v. Frison Bldg. Maintenance Co., 166 Mich.App. 716, 421 Defendant's claim that the tests here at issue N.W.2d 275 (1988); Duke v. American were not conducted in order to simulate Sumner's Olean Tile Co., 155 Mich.App. 555, 400 accident, while frequently repeated in the record, is N.W.2d 677 (1986); Kirk v. Ford Motor inconsistent with the testimony of the defense Co., 147 Mich.App. 337, 343-344, 383 witnesses. The witnesses went beyond use of the N.W.2d 193 (1985); Gorelick v. Dep't of tapes to illustrate general physical principles. State Hwys., 127 Mich.App. 324, 336-337, Gorelick v. Dep't of State Hwys., 127 Mich.App. 339 N.W.2d 635 (1983); Przeradski v. 324, 339 N.W.2d 635 (1983).... By testifying the Rexnord, Inc., 119 Mich.App. 500, 326 test results could be generalized to the facts of the N.W.2d 541 (1982); Green v. General accident, we believe defendant's experts implicitly Motors Corp., 104 Mich.App. 447, 304 suggested that the tests had been conducted under N.W.2d 600 (1981); Muniga v. General conditions similar to those of the accident. The Motors Corp., 102 Mich.App. 755, 302 tests were not used to prove generalities, but N.W.2d 565 (1980); Vanderberg v. General instead to prove a very important specific factual Motors Corp., 96 Mich.App. 683, 687-688, question: what role the defective welds played in 293 N.W.2d 676 (1980); Thorp v. Dayton the alleged *632 enhancement of plaintiffs' Tire & Rubber Co., 51 Mich.App. 514, 215 injuries. Because the evidence addressed a major N.W.2d 600 (1974); Royal Mink Ranch v. issue in the case and was visually very compelling, Ralston Purina Co., 18 Mich.App. 695, 705- we find the error was not harmless. MCR 2.613. 706, 172 N.W.2d 43 (1969); Grand Trunk Admission of the evidence of the videotaped tests W. R. Co. v. Pre-Fab Transit Co., Inc., 14 was improper. [ Sumner, supra at 696-697, 538 Mich.App. 26, 30, 165 N.W.2d 281 (1968); N.W.2d 112.] Manning v. Lake Superior & I R Co., 4 Mich.App. 316, 144 N.W.2d 831 (1966); The Sumner panel cited no authority for the new

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861) rule of limitation on the admissibility of why it is doing so and predicate that demonstrative evidence it announced FN19 and we are change on some clearly articulated policy unaware of any Michigan case preceding Sumner that found in the Michigan Rules of Evidence, has recognized such a limitation. Sumner is clearly statutes, or decisional law. inconsistent with the standard established in Smith. Moreover, leaving aside the impropriety of our Court Although the Sumner panel offered no establishing a rule different from existing Supreme defense of its rule, the Lopez lead opinion Court precedent, we can discern no logical basis for attempted to do so. See Lopez, supra at FN20 the Sumner rule. 813, n. 10, 555 N.W.2d 875. Despite the fact that the lead opinion cited Gorelick, FN19. The Gorelick decision cited in the supra, which correctly identifies the quoted text does not stand for the differing evidentiary rules associated with proposition suggested by Sumner. Nothing the admission of re-creation and in Gorelick purports to contradict Smith or demonstrative evidence, it is quite evident even remotely supports the proposition that that the lead opinion mistakenly conflated the general principles illustrated in the two rules: demonstrative evidence cannot be applied to the particular facts of a case. I do not see the dilemma identified by [the concurring] opinion. If a test is conducted FN20. The Sumner panel acknowledged that under sufficiently similar circumstances, it the test data were not admitted as re-creation may be used as evidence purporting to evidence. Although it is apparent that the recreate what likely happened in the Sumner panel took umbrage at the fact that accident at issue. If it is not sufficiently the proponent of the demonstrative evidence similar, and only purports to illustrate applied the general principles of the tests to general principles, its use must be a “major issue in the case,” it is unclear why circumscribed, and the court must be this was or should be a concern. That panel vigilant that the illustrative evidence is not did not explain why the adversarial nature of misused. [Id. (emphasis added).] the trial process, wherein the party opposing the demonstrative evidence is free to attack As discussed earlier in the text, the evidence on any basis, including its “sufficiently similar” is the standard that dissimilarity to the issue at bar, was must be applied in determining whether inadequate to ensure a fair trial. This is the demonstrative, not re-creation, evidence is precise point made in the concurring Lopez to be admitted; if the proposed opinion: “Because ‘the lack of exact identity demonstrative evidence is not sufficiently affects only the weight and not the similar, it cannot be admitted at all on this competency of the evidence,’ [ Smith, supra basis. No case, including Sumner, has at 126, 208 N.W. 145], any difference advanced such a rationale in this arena as between the conditions of the experiment the lead opinion in Lopez has suggested. It and the actual accident could be the subject is perhaps not surprising that the lead of cross-examination and jury argument, but opinion in Lopez does not even cite or not grounds for challenging admissibility, address Smith. see Green, supra at 451-452, 304 N.W.2d 600.” Lopez, supra at 815, 555 N.W.2d 875. Further, the suggestion of the Lopez lead opinion that special judicial “vigilance” We believe that when a court intervenes to should be exercised when demonstrative change the “rules of engagement” in the evidence is involved does not explain the adversarial trial process, it must explain flaw in the basic notion that the

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861) adversarial process is presumptively logical sense, probative force in a particular capable of ensuring that the jury is made piece of evidence, while materiality is fully aware of any deficiencies in an concerned with the question whether the fact adversary's proofs. Smith and Green to be proved is genuinely at issue. clearly express a contrary view on this Materiality and relevancy must be subject. See Smith, supra at 126, 208 established as a precondition of admission of N.W. 145; Green, supra at 451-452, 304 evidence. See Michigan Courtroom N.W.2d 600. Evidence (rev ed), (Wade & Strom, eds, Ann Arbor: Institute of Continuing Legal Finally, if there was a failure of vigilance Education), p 71. in Lopez, it was not on the part of the trial court. We note that plaintiff's counsel in 2. Lopez v. GMC Lopez failed to request a limiting [7] [8] Returning to Lopez, we must determine instruction advising the jury that the under the appropriate pre-Sumner standard whether videotapes were being admitted only for the trial court properly admitted the demonstrative illustrative purposes, even though counsel evidence. We review challenges to the admission of for defense offered to acquiesce in such an evidence under an “abuse of discretion” standard. instruction, and also frequently failed to People v. Bahoda, 448 Mich. 261, 289, 531 N.W.2d object at points during trial that plaintiff 659 (1995). Reversal of close discretionary now claims the defense violated the evidentiary questions is not warranted merely “Sumner rule.” because reviewing appellate judges would have ruled differently. Id. **869 [6] *633 Ironically, taken to its logical conclusion, the new Sumner rule would appear to [9] Contrary to the lead opinion in Lopez, we render demonstrative evidence inadmissible because, cannot conclude that the trial court abused its if inferences drawn from that evidence cannot be discretion in admitting the two videotapes showing applied to an issue in controversy, then it is hard to tests conducted by defendant. Plaintiff was able to conceive how the demonstrative evidence can ever and did point out to the jury the differences between meet the materiality and relevance requirements of the test conditions and the conditions of her accident. the Michigan Rules of Evidence.FN21 In sum, we Defendant acknowledged the differences and did not conclude that the Sumner *634 panel, while not claim that the tests recreated plaintiff's accident. disavowing the theoretical concept of demonstrative Further, plaintiff's own expert agreed that the tests evidence, has as a practical matter eliminated the use would be useful in illustrating the physical principles of demonstrative evidence. It has done so without a *635 involved in the accident, a point the Smith supporting rationale and contrary to controlling Court found highly germane in considering whether Supreme Court authority. demonstrative evidence should be admitted.

FN21. “Irrelevant evidence, of course is [10] Our review of the record does not support inadmissible. MRE 402. When evidence plaintiff's contention that defendant tried to mislead does not make a fact ‘of consequence to the the jury into thinking that the videotapes depicted a determination of the action more or less re-creation of plaintiff's accident. We note that the probable,’ it is not relevant. MRE 401.” trial court was sensitive to this possibility during the Dacon v. Transue, 441 Mich. 315, 339, 490 arguments on plaintiff's motion in limine. Perhaps N.W.2d 369 (1992) (emphasis added). MRE most fatal to plaintiff's claim of error here is the fact 401, which defines relevant evidence, that plaintiff failed or chose not to request a limiting embodies two fundamental concepts: instruction at the time the challenged evidence was materiality and relevancy. Relevancy admitted or at any point thereafter. If plaintiff addresses the question whether there is, in a genuinely believed that jury confusion might be

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 569 N.W.2d 861 FOR EDUCATIONAL USE ONLY Page 224 Mich.App. 618, 569 N.W.2d 861, Prod.Liab.Rep. (CCH) P 15,060 (Cite as: 224 Mich.App. 618, 569 N.W.2d 861) created concerning the purpose for which this * * * evidence might properly be used during trial, then a III cautionary instruction should have been requested. MRE 105. We hold that any error that may have The judgment in favor of defendant is affirmed. arisen as a result of the unlimited admission and use Defendant, being the prevailing party, may tax costs of the disputed evidence could have been cured by pursuant to MCR 7.219. such an instruction. Bahoda, supra at 291, n. 61, 531 N.W.2d 659. Accordingly, plaintiff has waived any claim of error concerning the admission and use of this demonstrative evidence. END OF DOCUMENT