Statutes of Limitations (MICHIGAN)

 Personal Injury - 3 yrs. [M.C.L.A. 600.5805(10)]
Wrongful Death - 3 yrs. [M.C.L.A. 600.5805(10)]
Property Damage - 3 yrs. [M.C.L.A. 600.5805(10)]
Product Liability (including Breach of Warranty in some circumstances) - 3 yrs. [M.C.L.A. 600.5805(13); Fries v. Holland Hitch Co., 162 N.W.2d 672 (Mich. App. 1968)]
Contracts (Written and Oral) - 6 yrs. [M.C.L.A. 600.5807(8)]
Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [M.C.L.A. 440.2725]






Statute of Repose (MICHIGAN)

If the product has been in use for not less than 10 yrs., Plaintiff, in proving a prima facie case, shall be required to do so without benefit of any presumption [M.C.L.A. 600.5805(13)].



Admissibility of Expert Testimony (MICHIGAN)


Michigan rules of evidence explicitly incorporate Daubert's test.  It is insufficient for the proponent of expert opinion to show that the opinion rests on data viewed as legitimate in the context of a particular area of expertise. The proponent must also show that any opinion based on those data expresses conclusions reached through reliable principles and methodology [Gilbert v. DaimlerChrysler Corp., 470 Mich. 749 (Mich. 2004)].


Causes of Action (MICHIGAN)


Only two theories of recovery recognized: negligence and breach of implied warranty [Lemire v. Garrard Drugs, 291 N.W.2d 103 (Mich. Ct. App. 1980)].


Strict Liability – Not adopted/recognized.


Negligence – Plaintiff must establish that Manufacturer breaches its duty to use reasonable and ordinary care under the circumstances in planning or designing his product so that it is reasonably safe for the purposes for which it is intended. [Bullock v. Gulf & W. Mfg., 340 N.W.2d 294 (Mich. Ct. App. 1983)].  Plaintiff must establish the traditional common-law elements of duty, breach, damage and causation [Lemire v. Garrard Drugs, 291 N.W.2d 103 (Mich. Ct. App. 1980)]


Implied Warranty – Cause of action is established upon proof of injury caused by a defect in the product that made it not reasonably fit for its intended or reasonably foreseeable use [Vincent v. Allen Bradley Co., 291 N.W.2d 66 (Mich. Ct. App. 1980)].  Whether the theory employed is that of warranty or negligence, it must be shown that the offensive condition is present when the product leaves Defendant’s control [Manzoni v. Detroit Coca-Cola Bottling Co., 109 N.W.2d 918 (Mich. 1961)].





Definition of “Defect” (MICHIGAN)


A product is defective if it is not reasonably safe for its foreseeable uses. This definition is not limited to manufacturing defects, but also includes design defects [Ghrist v. Chrysler Corp., 547 N.W.2d 272 (Mich. 1996)].  A product may be unreasonably dangerous if Manufacturer omits a safety device [Huff v. Ford Motor Co., 338 N.W.2d 387 (Mich. Ct. App. 1983)].

Also, see discussion below re: design defects.

Liability of Sellers (MICHIGAN)


Sellers are not liable unless: (1) the seller failed to exercise reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person’s injuries; or (2) the seller made an express warranty, the product failed to conform to the warranty, and the failure to conform was a proximate cause of the person’s harm [MCLS § 600.2947].


Defenses (MICHIGAN)       

Comparative Negligence – Michigan follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [M.C.L.A. 600.2959].


Product Alteration/Modification – Complete defense, unless the alteration was reasonably foreseeable [MCLS § 600.2947].


Product Misuse – Complete Defense, unless the misuse was reasonably foreseeable [MCLS § 600.2947].


Assumption of Risk – Complete defense if Plaintiff knew that use of the product created an unreasonable risk of personal injury and voluntarily exposed himself to that risk and said risk was the proximate cause of the injury [MCLS § 600.2947].


Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (MICHIGAN)


Recognized/applied when commercial parties are involved.  Where buyer’s expectations in sale are frustrated because a product is not working properly, buyer’s remedy is in contract alone; if Plaintiff seeks to recover for economic loss caused by a defective product purchased for commercial purposes, exclusive remedy is provided by UCC [Neibarger v. Universal Cooperatives, Inc., 486 N.W.2d 612 (1992)].


ELD has no application outside commercial realm and, thus, does not operate to bar tort claims in lawsuits concerning sale of defective products to individual consumers who are injured in manner which traditionally has been remedied by resort to law of torts [Republic Ins. Co. v. Broan Mfg. Co., Inc., 960 F.Supp. 1247 (E.D. Mich. 1997)].


However, at least one court decision extended ELD to a consumer transaction, but only where purchaser’s expectations in a sale were frustrated because the product was not properly working.  The court specifically noted that, while consumer should not be charged with bearing the risk of physical injury from a product, the consumer may be charged with the risk that the product will not match his economic expectations [Sherman v. Sea Ray Boats, Inc., 649 N.W.2d 783 (Mich. App. 2002)].


Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (MICHIGAN)


A manufacturing defect can be proved by circumstantial evidence without expert opinion testimony.  A plaintiff in a products liability case who has presented evidence, direct or circumstantial, from which it is reasonable to infer that an accident was probably caused by a defect attributable to the manufacturer has made out a case for the jury, and the question whether the inference suggested by the plaintiff's theory is the correct one, or whether it was sufficiently rebutted, is for the jury [Holloway v. General Motors Corp., Chevrolet Div., 271 N.W.2d 777 (Mich. 1978)].


Design Defects (MICHIGAN)                                                                      


A manufacturer has a duty to design its product to eliminate any unreasonable risk of foreseeable injury [Ghrist v. Chrysler Corp., 547 N.W.2d 272 (Mich. 1996)].


For a plaintiff to establish a question of fact as to a manufacturer’s breach of duty in design defect litigation, evidence of the following must be presented: (1) that the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation; or (2) that the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product [Owens v. Allis-Chalmers Corp., 326 N.W.2d 372 (Mich. 1982)].


Compliance with governmental and industrial standards does not preclude a trier of fact from finding certain conduct to be negligent. The customary usage and practice of the industry is relevant evidence to be used in determining whether or not the standard of reasonable care has been met. Such usage cannot, however, be determinative of the standard [Owens v. Allis-Chalmers Corp., 326 N.W.2d 372 (Mich. 1982)].


Plaintiff does not present a prima facie case where there is a lack of evidence concerning both the magnitude of the risks involved in the product and the reasonableness of the proposed alternative design. [Owens v. Allis-Chalmers Corp., 326 N.W.2d 372 (Mich. 1982)]



Failure to Warn (MICHIGAN)


A manufacturer is liable in negligence for failure to warn about dangers associated with intended use, as well as those associated with foreseeable misuse. But there is no duty to warn where the danger is open and obvious, or where the specific dangers are fully known to the plaintiff at the time the injury occurs.  A product is defective if it is not reasonably safe for its foreseeable uses [Bullock v. Gulf & W. Mfg., 340 N.W.2d 294 (Mich. Ct. App. 1983)].


Except to the extent a state or federal statute or regulation requires a manufacturer to warn, a manufacturer is not liable for failure to provide an adequate warning if the product is provided for use by a sophisticated user. [MCLS § 600.2947]


A product with no warning labels is not defective if it remains reasonably safe for its foreseeable uses (i.e., a manufacturer needs not warn of unforeseeable uses) [Trotter v. Hamill Mfg. Co., 372 N.W.2d 622 (Mich. Ct. App. 1985)].


In most failure-to-warn cases, proximate cause is not established absent a showing that Plaintiff would have altered his behavior in response to a warning. However, in certain circumstances the jury may infer this fact from the evidence presented [Allen v. Owens-Corning Fiberglas Corp., 571 N.W.2d 530 (Mich. Ct. App. 1997)].






Independent Cause of Action for Evidence Spoliation (MICHIGAN)


No separate tort of evidence spoliation has been recognized [Panich v. Iron Wood Products Corp., 445 N.W.2d 795 (Mich. App. 1989); Helzer v. CBS Boring & Mach. Co., Inc., 1999 WL 33441300 (Mich. App. 1999)]