Court of Appeals upholds modest injury verdict and comparative fault assignment; allows testimony by toxicologist regarding "visible" intoxication

Valerie Rissi sued her ride home from the bar after he hit a tree and didn't make it home.  She was drunk; he was drunker.  She suffered severe injuries, but the jury held that her damages should be reduced by 40%--the jury's assessment of her share of fault.  She appealed the judgment of some $70,000.00. 

Rissi argued that the court had erred in admitting the testimony of an Indiana toxicologist who claimed that her ride would have been "visibly intoxicated" even though the toxicologist lacked basic foundation evidence about his size and weight and drinking experience.  She also argued that the jury's verdict was inconsistent because it assigned 25% fault to her consumption of alcohol but a total of 40% comparative fault.  The court concluded that the latter outcome could be interpreted in a consistent manner and that in any event, Rissi's attorney had approved the wording of the verdict form and estopped to object to it. 

In a more troublesome ruling, the judges disregarded the Michigan Supreme Court's directly contradictory recent holding in a dramshop case where a toxicologist had extrapolated visible intoxication from test results.  In the latter case, the Court held that such testimony was unduly speculative when utilized by a plaintiff victim:  in the instant case, the court allowed it to be used against the victim.  Frankly, this use of the testimony was reasonable and comports with several decades of scientific analysis of the visible impact of various blood alcohol levels.  The contradictory Supreme Court decision was widely criticized for overturning several decades of thought on the use of this scientific evidence.