i
Defendant first contends that no factual basis supported many of the opinions offered by plaintiff’s expert, Frank Pia, and that the trial court therefore erred in permitting Pia’s testimony.
Absent an abuse of discretion, the qualification of a witness as an expert and the admissibility of his testimonywill not be reversed on appeal. The trial court may qualify a witness as an expert if it 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. The facts and data on which the expert relies in formulating an opinion must be reliable. [Anton v State Farm Mut Automobile Ins Co, 238 Mich App 673 , 677;607 NW2d 123 (1999) (citations omitted).]
See also MRE 702-705. With respect to the trial court’s evidentiary rulings, an abuse of discretion exists “only if an unprejudiсed person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made.”
Berryman v K mart Corp,
Pia testified that he provided consulting services involving drowning prevention and lifeguard training, as part of Water Safety Films, Inc., which also produced and distributed lifeguard training movies. 1 Beginning in 1959, Pia worked for twenty-one summers as a lifeguard watching Orchard Beach in the Bronx, New York. Pia eventually achieved the beach’s chief lifeguard position, which involved training other lifeguards. According to Pia, crowds of between 150,000 to 200,000 visited Orchard Beach at a time, and beach lifeguards rescued approximately 2,000 swimmers each summer. While working at the beach, Pia conducted original research that uncovered certain predictable behavior of drowning swimmers. Pia’s research, which included filming drowning swimmers at Orchard Beach, led him to conclude that drowning swimmers of all ages and sizes and genders exhibited certain behavior and movements characteristic of an instinctive drowning response and that drownings usually resulted from lifeguards’ failure to recognize this behaviоr or from the lifeguards’ inattentiveness. Pia wrote many articles, produced films, and lectured to numerous national and international organizations, including the American Red Cross and United States Coast Guard, regarding his water safety research and lifeguard training. Pia authored three chapters of the American Red Cross’ current “Lifeguarding Today” textbook, and other researchers had duplicated and verified Pia’s observation of the instinctive drowning response. Pia created two new drowning victim classifications, the distressed swimmer and the active drowning victim, in addition to a preexisting category of passive drowning victim. Pia explained that (1) distressed swimmers experienced some difficulty swimming that prevented their return to safety, but still could keep their heads above water and wave or call for help, (2) actively drowning individuals were unable to support themselves in water, exhibited the instinctive drowning response, could not wave, and, because of suffocation, could not cry for help; (3) passive drowning victims passed out in the water for physiological reasons and simply floated fаce down without indicating a struggle.
A
Defendant does not specifically contest Pia’s water safety expertise, but instead essentially submits that no facts of record supported Pia’s conclusion that the decedent fell into the active drowning victim cate
gory. It appears undisputed that while approximately ten to fifteen people besides defendant’s two lifeguards were present on the beach near the time of the decedent’s drowning, no witnesses observed the decedent go under the water or
B
Defendant also argues that the record did not support Pia’s conclusion that defendant’s lifeguards negligently failed to detect the decedent’s drowning. Pia opined that defendant’s lifeguards “should have recognized [the decedent’s] instinctive drowning response and made a rescue before he submerged,” but failed to observe the decedent because they were inattentive and improperly stationed. It was undisputed at trial that the decedent’s drowning occurred approximately fifteen feet from shore almost directly before the lifeguards and that no one witnessed the event. Four witnesses indicated that the lifeguards were sitting on picnic tables either talking to each other or watching both the water and a group оf young men playing football on the beach near the time one of the young men discovered the decedent’s body just below the surface of the water. Furthermore, even the lifeguards acknowledged that only moments before discovery of the decedent’s body they were distracted while watching and disciplining the group of young men playing football.
c
Defendant lastly challenges as without factual foundation Pia’s conclusion
In summary, Pia was a well-recognized water safety expert with twenty to thirty years of training and experience, whose opinions provided for the juiy’s consideration some insight regarding the nature of various types of drowning and whether defendant’s lifeguards should have rescued the decedent. MRE 702, 704. After carefully reviewing the reсord, we find that Pia’s comments, observations, and opinions were supported by his extensive training and experience, as well as facts that, although contested, were part of the evidentiary record. MRE 703. We conclude that the trial court did not abuse its discretion in admitting Pia’s testimony. Anton, supra; Berryman, supra at 98.
n
Defendant next argues that the trial court erred in failing to read to the jury certain standard and nonstandard jury instructions that defendant requested and in utilizing a special verdict form embodying its erroneous rulings. We review jury instructions in their entirety to determine whether the instructions given adequately informed the jury regarding the applicable law reflecting and reflected by the evidentiary claims in the particular case.
Walker v Flint,
A
Defendant first asserts that the trial court improperly refused its requested comparative negligence instruction. Defendant sought the juiy’s instruction regarding the decedent’s comparative negligence because the decedent went swimming while suffering a known heart condition. The decedent had a heart attack and underwent quintuple bypass surgery
approximately six years before his swimming accident. While defendant’s cardiology expert opined that the decedent’s medical records reflected that the decedent experienced postsurgery (1) progressive heart damage due to occlusion of certain blood vessels and (2) multifocal ventricular arrhythmias, the combination of which likely resulted in the decedent’s occasional shortness of breath, defendant introduced absolutely no evidence tending to establish that the decedent was advised that his medical condition prevented him
B
Defendant also challenges the court’s instruction concerning conscious pain and suffering, alleging that no еvidence demonstrated that the decedent endured any pain or suffering. While defendant’s medical
expert opined that the decedent died suddenly of cardiac arrest, other evidence, including the decedent’s hospital records, indicated drowning as the primary cause of death. Pia testified that adult victims of drowning might struggle in the water for between twenty and sixty seconds before succumbing. Both lifeguards testified that after the decedent was retrieved from the water they placed the decedent on his side, causing him to expel water. The lifeguards’ testimony suggests that the decedent consciously aspirated some water. In light of this evidence from which the jury could infer some measure of pain and suffering endured by the decedent while he drowned, we conclude that the trial court correctly instructed the jury regarding damages for pain and suffering. See
Byrne v Schneider's Iron & Metal, Inc,
c
Defendant further asserts thаt no evidence established that the decedent’s daughter and siblings suffered damages and that the trial court therefore incorrectly instructed the jury that it could find such damages. Defendant concedes that the decedent’s daughter and siblings are persons entitled to recover damages for the decedent’s wrongful death, MCL 600.2922(3)(a), but suggests that in this case the daughter and siblings may not recover because they did not testify at trial regarding the extent of their damages. The decedent’s son described at trial, how
ever, the decedent’s daughter’s participation in the difficult decisions to remove the decedent’s life support and to place their mother in a nursing home. The decedent had been his wife’s caretaker. The son’s testimony revealed that the decedent’s youngest sister also assisted in caring for the decedent’s wife, and that the decedent’s siblings came from Michigan, Virginia, and California to attend decedent’s funeral. The decedent’s wife and son testified that plaintiff had very close family relationships, especially with his grandchildren, and enjoyed outdoor activities with family. We find the trial court’s inclusive reference, when instructing the jury to determine damages, to the decedent’s
D
Defendant additionally contends with respect to the trial court’s instructions that the court should not have permitted the jury to consider the standard mortality table when calculating damages. Defendant sug
gests that the mortality table, which reflects the average life spans of generally healthy individuals, was irrelevant in this case because the decedent suffered various significant medical conditions. Our review of the record indicates that the decedent undisputedly had at least some medical conditions that would tend to shorten his life expectancy.
7
The trial court did not instruct the jury that it must adhere to the mortality table, hоwever, but advised the jury that “this mortality table may be considered with all the other evidence in determining fife expectancy.” We detect no error in this instruction. Moreover, in light of the juiy’s award of future damages for only seven years, instead of the approximately twelve years of life that the mortality table anticipated for an individual nearly sixty-seven years of age, we conclude that even if the jury’s consideration of the mortality table was inappropriate, our affirmance of the award would be consistent with substantial justicе.
Winiemko v Valenti,
E
We further note that the trial court did not err in refusing to instruct the jury that the death certificate constituted only prima facie evidence of the decedent’s cause of death. An instruction concerning hospital records should be given only if necessary to accurately state the relevant law and other instructions do not adequately cover the point. See
Powell v
St John Hosp,
m
Defendant next argues that the jury’s verdict was against the great weight of the evidence. Because defendant did not raise this issue in a motion for a new trial before the trial court, this issue has been waived.
Buckeye Marketers, Inc v Finishing Services, Inc,
iv
Defendant also challenges the propriety of certain taxable costs awarded by the trial court.
A
Defendant asserts that the trial court erred in allоwing plaintiff costs for seven depositions not read into evidence.
9
The power to tax costs is wholly statutory.
Portelli v I R Constr Products Co, Inc,
Reasonable and actual fees paid for depositions of witnesses filed in any clerk’s office and for the certified copies of documents or papers recorded or filed in any public office shall be allowed in the taxation of costs only if, at the trial or when damages were assessed, the depositions were read in evidence, except for impeachment purposes, or the documents or papers were necessarily used. [MCL 600.2549.]
In this case, the parties apparently do not dispute that plaintiff filed notices of the takings or completions of the seven depositions at issue, but that plaintiff did not file with the trial court clerk the seven depositions themselves. Because § 2549 plainly and unambiguously demands that the cost of a deposition may not be taxed when the deposition has not been filed in a court clerk’s office, we conclude thаt the trial court abused its discretion in awarding plaintiff $1,819.83 in costs for the seven depositions at issue.
Elia v Hazen,
B
Defendant next claims that the trial court erred in awarding plaintiff as an element of costs excessive expert witness fees. MCL 600.2164(1) authorizes a trial court to award expert witness fees as an element of taxable costs. We review for abuse of discretion the trial court’s determination to award expert witness fees.
Detroit v Lufran Co,
Plaintiff sought reimbursement of $5,184.80 for Pia’s expert witness fees. Although we failed to locate within the trial court record any itemized explanation of Pia’s charges, the record of the December 22, 1997, hearing regarding costs indicated that an itemized bill was presented to the trial court and that the parties argued
v
Lastly, defendant argues that the trial court incorrectly awarded plaintiff interest on the jury’s award of future damages for loss of society and companionship. Subsection 6013(1) of the Revised Judicature Act, MCL 600.6013(1), provides that “for complaints filed on or after October 1, 1986, interest shall not be allowed on future damages from the date of filing the complaint to the date of entry of judgment.” Thе act defines “future damages” as follows:
(a) “Future damages” means damages arising from personal injury which the trier of fact finds will accrue after the damage findings are made and includes damages for medical treatment, care and custody, loss of earnings, loss of earning capacity, loss of bodily function, and pain and suffering.
(b) “Personal injury” means bodily harm, sickness, disease, death, or emotional harm resulting from bodily harm. [MCL 600.6301.]
See
Paulitch v Detroit Edison Co,
In this case, the special verdict form expressly indicates that the jury awarded $310,000 for damages that the decedent’s heirs “will sustain ... in the future for the loss of [his] society and companionship.” In awarding plaintiff interest regarding the entire jury verdict, the trial court determined that “the plain meaning of the statutes [sic] which defines future damages . . . does not include loss of consortium or society. . . . [H]ad the legislature intended to include loss of consortium and society as future damages not subject to statutory interest, it could have specifically listed it within the definition statute.” (Emphasis in original.)
We review de novo the trial court’s statutory interpretation, which constitutes a question of law.
Saginaw Co v John Sexton Corp of Michigan,
In response to plaintiffs suggestion that loss of society and companionship cannot be future damages under subsection 6301(a) because the fist of specific damages within this subsection does not include loss of companionship or society, we note that “[w]hen used in the text of a statute, the word ‘includes’ can be used as a term of enlargement or of limitation, and the word in and of itself is not determinative of how it is intended to be used.”
Frame v Nehls,
Accordingly, we conclude that the trial court erred in granting plaintiff interest on the jury’s award of $310,000 in future damages for loss of society and companionship.
We affirm the juiy’s verdict, reverse the trial court’s awards of (1) $1,819.83 in costs for the seven depositions not filed with the trial court clerk and (2) interest on the jury’s $310,000 award of future damages for loss of society and companionship, and remand for entry оf an order incorporating an appropriate calculation of interest pursuant to MCL 600.6013. We do not retain jurisdiction.
Notes
Pia also taught and counseled at-risk teenagers.
“Near drowning” signified that the decedent was submerged in the water, but was brought out and survived beyond a twenty-four-hour period.
We disagree with defendant’s suggestion that Pia, beyond the scope of his expertise, improperly analyzed, interpreted, or vouched for the accuracy of the decedent’s medical records. The decedent’s death certificate plainly states the cause of death as “myocardial infarction due to (or as a consequence of) near-drowning,” and Pia simply and properly relied on this plain statement of record in formulating his opinion that the decedent was not a passive drowning victim.
We also reject defendant’s argument that Pia engaged in improper medical speculation when he opined how the decedent would have behaved in the water if he had experienced breathing difficulties or heart stoppage. Pia testified that in his experience, education, and training a swimming heart attack victim would “float on the surfaсe of the water and then slowly go under” as the air present in the swimmer’s lungs escaped, and that the decedent would have displayed the instinctive drowning response if he had experienced trouble breathing. We note that defendant’s cardiology expert also testified that the rate at which a floating swimmer who experienced cardiac arrest would sink in the water “is dependent upon the relationship of . . . their lung volume to the body mass.”
Pia testified that in his experience, nearly ail suffocating drowning victims who could not yell for helр went unnoticed by surrounding swimmers who failed to recognize the instinctive drowning response and were completely unaware that a drowning was happening. Pia further explained that on the basis of his previous observations, “Unless you have been specifically trained to understand what the drowning person is trying to do, it looks as though the person might be playing in the water.”
The cardiology expert also noted the mention within the decedent’s medical records of chronic obstructive pulmonary disease, “the kind of lung problems that can cаuse wheezing and is frequently due to long-term smoking. ” Again, however, no evidence showed that anyone advised the decedent that he should avoid recreational activities because of this condition.
Although this Court in Berryman, supra at 94-97, considered a loss of consortium claim by the husband of the injured party, we detect no reason to distinguish this Court’s analysis in Berryman regarding the sufficiency of proof with respect to a spouse’s loss of consortium claim from loss of companionship and society claims by other relatives.
For example, defendant’s cardiology expert opined that the decedent’s “life expectancy was limited because of his documented heart disease and progression of heart disease.” The expert could not specify, however, regarding the extent of the decedent’s resulting life expectancy.
Regarding hospital and business records, SJI2d 4.12 “recommends that no instruction be given concerning” these records. MCR 2.516(D)(3) provides as follows:
Whenever the SJI committee recommends that no instruction be given on a particular matter, the court shall not give an instruсtion on the matter unless it specifically finds for reasons stated on the record that
(a) the instruction is necessary to state the applicable law accurately, and
(b) the matter is not adequately covered by other pertinent standard jury instructions.
The deposition of Ryan Phillips was filed with the clerk and read into evidence, and the trial court’s award of costs for this deposition is not in dispute. The trial court’s challenged award of deposition costs involves the depositions of David Rapacz, Tim Rapacz, Colleen Hоpkins, Cathy Nichols, Kevin Pierce, Dr. Daniel T. Anbe and Frederick Carter. These depositions were not read into the record other than for impeachment purposes.
We note the following, well-established principles governing statutory interpretation:
The foremost rule, and our primary task in construing a statute, is to discern and give effect to the intent of the Legislature. This task begins by examining the language of the statute itself. The words of a statute provide “the most reliable evidence of its intent. ...” If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. [Sun Valley Foods Co v Ward,460 Mich 230 , 236;596 NW2d 119 (1999) (citations omitted).]