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Estate of Kostich v Monroe Motorsports, Inc Ins Co, et al (UNP – COA 5/27/2021; RB # 4325)


Michigan Court of Appeals; Docket #353446, 354158; Unpublished
Judges Rick, Ronayne Krause, and Letica; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion

Not Applicable

Evidentiary Issues

In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s denial of Plaintiff Estate of Kord Kostich’s motion seeking to preclude Defendant Monroe Motorsports, Inc.’s (“Monroe Motorsports”) accident reconstructionist expert witness, Steven Fenton, from offering his opinion as to how the subject crash involving a Polaris Slingshot auto-cycle occurred. The Court of Appeals held that Fenton was sufficiently qualified to offer expert testimony about traction control and how it played a factor in the subject crash, and that Fenton relied on sufficient facts and data in forming his opinion.

Kord Kostich took his three-wheeled Polaris Slingshot auto-cycle (a subclass of motorcycle) to Monroe Motorsports for maintenance.  When he picked up the vehicle approximately a month later,  an employee at Monroe Motorsports told him the vehicle was in “ ‘like perfect condition.’ ” As Kostich was driving the Slingshot home from Monroe Motorsports, it started raining heavily and Kostich lost control of the Slingshot, causing him to skid or slide into oncoming traffic where he was struck and killed by another vehicle. Kostich's Estate filed a lawsuit against Monroe Motorsports, alleging that Monroe Motorsports was negligent in not noticing that the tire tread depth on the Slingshot’s rear tire was less than four millimeters, which the vehicle’s manufacturer, Polaris, deemed unsafe. Furthermore, the Estate argued that the unsafe tire caused the vehicle to hydroplane on the wet road and Kostich to lose control. Monroe Motorsports argued, in response, that its failure to notice the tire tread depth was not the proximate cause of the crash, and that the crash was caused instead by Kostich’s driving too fast in the rain with the traction control disabled. Monroe Motorsports supported its argument with the testimony of accident reconstructionist Steven Fenton, who opined that Kostich must have manually disabled the Slingshot’s traction control and that the vehicle lost traction irrespective of the tire tread depth. The Estate moved before trial to preclude Fenton from testifying about the Slingshot’s lack of traction control and its role in causing the crash, arguing that Fenton was not qualified to opine on traction control and, furthermore, that his opinion was based on a hearsay conversation he had with an accident reconstructionist coworker who tested Slingshot traction control in an unrelated study before the subject crash even occurred. The trial court denied the Estate’s motion, and the jury ultimately returned a verdict of no cause of action.

The Court of Appeals affirmed the trial court’s denial of the Estate’s motion. The Court of Appeals held that, as an accident reconstructionist, Fenton was “amply qualified to testify regarding the effect of no traction control on a vehicle,” and that Fenton did not need “specific experience or knowledge pertaining to how Kostich’s particular Slingshot would have acted without the traction control being engaged,” as the Estate argued. There was nothing distinct about the Slingshot that would have rendered Fenton’s general expert knowledge of traction control inapplicable.

“Plaintiff first contends that Fenton was not qualified to testify regarding traction control and its effects on vehicle handling. ‘Generally, the expert may be qualified by virtue of ‘knowledge, skill, experience, training, or education.’ ’ Craig, 471 Mich at 78, quoting MRE 702. Fenton is a distinguished, accredited accident reconstructionist with years of experience. He also is a board-certified forensic engineer. As an accident reconstructionist, Fenton was amply qualified to testify regarding the effect of no traction control on a vehicle. Plaintiff suggests that Fenton needed specific experience or knowledge pertaining to how Kostich’s particular Slingshot would have acted without traction control being engaged, but we are not persuaded.

Traction control, or the lack thereof, is not a concept that is unique to the Polaris Slingshot. Indeed, traction control in vehicles is so commonplace in recent years, it is questionable that any expert testimony is needed to explain how that feature generally works. Regardless, the concept or principle of traction control works the same regardless of the type of vehicle: traction control attempts to prevent tires from losing traction, i.e., freely spinning. Indeed, there were no shortage of lay witnesses at trial who testified regarding how the absence of traction control on a vehicle allows tires to spin or slip. Phillips, plaintiff’s own expert, indirectly recognized this when he stated that if there is no traction control and there is a slippery surface, the rear tire may just ‘sit there’ and ‘spin’ without the vehicle moving forward.7 Although plaintiff did not expressly testify about her understanding of traction control, she implicitly acknowledged what it was and thought Kostich would not have disengaged it for safety reasons. In short, there is nothing distinct about how traction control operated on the Slingshot, requiring more specialized knowledge or experience.”

The Court of Appeals also rejected the Estate’s contention that Fenton’s analysis was based entirely on a hearsay conversation he had with a coworker prior to this case about Slingshot traction. While Fenton did testify that his coworker had told him that it does not take much to get a Slingshot’s rear wheel to spin out, the Court held that this was not the only basis for Fenton’s opinion. Rather, he relied on other evidence, including photographs of the crash scene, scans of Kostich’s specific Slingshot, scientific literature, and just “basic, accepted scientific principles.”

“The trial court rejected plaintiff’s argument that Fenton’s opinion was solely based on hearsay because it was apparent that Fenton relied on more than just the coworker’s statement in formulating his opinion. The court did not err. In his deposition, Fenton testified that the rear tire was the ‘drive tire,’ meaning the tire that the engine ‘powers’ or directly ‘drives.’ This was important to Fenton’s analysis because, consistent with Phillips’s opinion, if traction control were disabled and the conditions were just right, pressing the gas pedal to accelerate could cause the rear tire to ‘slip.’ No specific testing was required to arrive at this opinion. Just common sense and basic, accepted scientific principles support this theory, which is sufficient. See MRE 702 (stating that expert testimony is permissible if ‘the testimony is the product of reliable principles and methods’). Because the gas pedal only directly powers the rear tire, if traction control were disabled, then that rear tire could conceivably ‘slip’ on wet or slick surfaces when attempting to accelerate by pressing the gas pedal. Indeed, evidence was presented that the Slingshot owner’s manual specifically warns against turning the traction control off, due to the increased risk of harm. In fact, even irrespective of traction control, the owner’s manual warns:

Accelerating abruptly could cause loss of control on low traction surfaces. Loss of control could result in serious injury or death. Always accelerate gradually, especially on wet, slippery or other low traction surfaces.

Moreover, the overall premise of plaintiff’s position is wanting. Plaintiff suggests that Fenton relied solely on the observations of his coworker in arriving at his conclusion. But the record demonstrates that Fenton relied on much more, including photographs that he took, scans of Kostich’s Slingshot, scans of the exemplar Slingshot that Fenton had, scans from the accident scene, and various literature. Consequently, the trial court did not abuse its discretion when it denied plaintiff’s motion in limine.”

Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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