Anderson v. A.P.I. Co. of Minnesota

• Decision Date: 16 January 1997
• Docket Number: No. 950392,950392
• Citation: 1997 ND 6,559 N.W.2d 204
• Parties: Richard C. ANDERSON, Plaintiff and Appellee, v. A.P.I. COMPANY OF MINNESOTA, a Minnesota corporation, (also known as A.P.I., Inc.), et al., Defendants, and Owens-Corning Fiberglas Corp., a Delaware corporation, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 204

559 N.W.2d 204

1997 ND 6

Richard C. ANDERSON, Plaintiff and Appellee, v. A.P.I. COMPANY OF MINNESOTA, a Minnesota corporation, (also

known as A.P.I., Inc.), et al., Defendants,

and

Owens-Corning Fiberglas Corp., a Delaware corporation,

Defendant and Appellant.

Civil No. 950392.

Supreme Court of North Dakota.

Jan. 16, 1997.

David C. Thompson (argued), of David C. Thompson, P.C., Grand Forks, Thomas A. Dickson (on brief), of Dickson Law Office, Bismarck, and Jeanette T. Boechler (on brief), of Boechler Law Firm, Fargo, for Plaintiff and Appellee.

Bruce Jones (argued), of Faegre & Benson, Minneapolis, MN for Defendant and Appellant.

NEUMANN, Justice.

¶1 Owens-Corning Fiberglas Corporation (Owens-Corning) appeals from a judgment entered on a jury verdict ordering Owens-Corning to pay Richard C. Anderson $85,000 as its share of the damages suffered by Anderson in this asbestos-related personal injury action, and from orders denying Owens-Corning's post-trial motions. We affirm in part, reverse in part, and remand for a reduction in the amount of economic damages awarded to Anderson.

¶2 From 1959 until 1985, Anderson operated and maintained boilers in the main heating plant at the Minot Air Force Base. During those years, Owens-Corning manufactured an asbestos-containing pipe covering and block insulation under the trade name "Kaylo." Kaylo products were shipped to the main heating plant at the Base while Anderson worked there, and Anderson personally handled, installed, and removed large amounts of pipe covering, cutting it with a saw and inhaling the resulting dust. He also handled, installed, and removed block insulation at the heating plant.

¶3 In 1991, Anderson was diagnosed with asbestosis, an incurable but non-malignant disease caused by exposure to asbestos. Anderson sued Owens-Corning and other former manufacturers, distributors, and installers of asbestos-containing products, alleging negligence and strict product liability theories of recovery. Owens-Corning was the only defendant appearing at trial. The jury found Anderson had an asbestos-related disease and suffered $340,000 in damages. The jury apportioned 25 percent of the fault to Owens-Corning, and judgment was entered awarding Anderson $85,000, plus interest and costs. The trial court denied Owens-Corning's post-trial motions, and this appeal followed.

I

¶4 Owens-Corning's primary argument on appeal is the trial court committed reversible error in admitting the testimony of Anderson's "state-of-the-art" expert witness, Dr. Barry I. Castleman.

¶5 In a pretrial motion in limine, Owens-Corning moved to exclude Castleman's proposed testimony or, in the alternative, to limit the testimony "to an identification of medical and scientific articles upon which he relies and limiting [him] to reciting the text of those articles without offering any opinions or conclusions he may have relative to those articles." Owens-Corning argued the proposed testimony would be beyond the scope of Castleman's qualifications, would be confusing to the jury and more prejudicial than probative, would be inadmissible hearsay, and would lack proper foundation. The trial court denied the motion in limine, but noted it would "expect that [Anderson] will establish a proper foundation at the time of trial for the testimony...."

¶6 The night before Castleman was to testify, Anderson's counsel informed Owens-Corning Castleman would be unavailable and he intended to instead offer a transcript of Castleman's testimony from a 1991 North Dakota federal district court case against OwensCorning. The following day, the trial court found Castleman was unavailable to testify in person and, over Owens-Corning's objection, allowed Anderson to use the transcript of his prior testimony. The transcript of Castleman's prior testimony was read to the jury.

¶7 On appeal, Owens-Corning does not assert the trial court's finding of unavailability is clearly erroneous or the trial court erred in finding Anderson's offer of Castleman's 1991 testimony complied with the hearsay exception in N.D.R.Ev. 804(b)(1). Rather, Owens-Corning asserts Castleman was not qualified as an expert to testify about historical medical articles reflecting the state of the medical community's knowledge of asbestos dangers.

¶8 It is well established that the qualifications of an expert witness are primarily for the determination of the trial court, and its determination will not be reversed on appeal unless that discretion was abused. Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990). As N.D.R.Ev. 702 explains:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

¶9 Rule 702 envisions generous allowance of the use of expert testimony if the witnesses are shown to have some degree of expertise in the field in which they are to testify. Matter of Estate of Aune, 478 N.W.2d 561, 564 (N.D.1991). The rule does not require an expert to have a formal title or be licensed in any particular field, but recognizes it is the witness's actual qualifications that count by providing that an expert can be qualified by knowledge, skill, experience, training, or education. Oberlander; 3 Weinstein's Evidence p 702 (1996). Thus, an expert witness's "knowledge may be derived from reading alone in some fields, from practice alone in some fields, or as is more commonly the case, from both." I McCormick on Evidence § 13, at pp. 54-55 (4th ed.1992) (footnote omitted). While the trial court decides the qualifications of the witness to express an opinion on a given topic, the trier of fact decides the expert witness's credibility and the weight to be given to the testimony. Construction Assoc. v. Fargo Water Equip., 446 N.W.2d 237, 239 (N.D.1989).

¶10 Castleman received a bachelor of science degree in chemical engineering from Johns Hopkins University in 1968 and, four years later, obtained a masters degree in environmental engineering from the same university. His masters thesis was titled "Asbestos: Effects on Health." In 1985, Castleman was awarded a doctorate in environmental engineering from Johns Hopkins University School of Hygiene and Public Health. His thesis was titled "Asbestos: An Historical Case Study of Corporate Response to an Industrial Health Hazard." Castleman has authored numerous publications relating to asbestos disease, most notably Asbestos: Medical and Legal Aspects, which has been judicially recognized as a "learned treatise." Nicolet, Inc. v. Nutt, 525 A.2d 146, 148 (Del.1987). See also Peerman v. Georgia-Pacific Corp., 35 F.3d 284, 285 (7th Cir.1994); In re North Dakota Personal Injury Asbestos Lit., 737 F.Supp. 1087, 1091 (D.N.D.1990); ACandS v. Godwin, 340 Md. 334, 667 A.2d 116, 131 (1995). The treatise details the development of knowledge in the medical, scientific, and business communities concerning the hazards of human exposure to asbestos. Castleman has been a consultant for many private organizations and governmental agencies and has testified before United States congressional committees concerning the hazards of asbestos and other substances. He has testified in more than 100 court cases throughout the country. During the course of his research, Castleman has reviewed thousands of publications pertaining to asbestos-related diseases.

¶11 Anderson offered Castleman's testimony, based on the specialized knowledge he had derived from his education, training, skill, and experience as an occupational health policy consultant and historian, to discuss the historical progression of knowledge concerning the hazards of asbestos within the scientific, medical, technical, and business communities. Castleman's testimony here focused on historical medical knowledge of the hazards of asbestos.

¶12 Owens-Corning asserts Castleman is "merely a lay librarian of asbestos medical research," and although this might qualify him to testify about the existence of medical articles addressing the relationship between asbestos and certain diseases, it does not qualify him to testify about the contents of the articles because Castleman is not a medical doctor. Claiming Castleman lacks the medical background and experience to evaluate and analyze the articles he reviewed, Owens-Corning asserts his testimony was actually medical opinion he was unqualified to give and, therefore, the testimony could not have been of any assistance to the jury.

¶13 Owens-Corning relies on several examples of what it considers improper and unqualified medical testimony given by Castleman, including the following excerpts:

"Q. Because of what Dr. Merewether called a maturation period, Doctor, what would happen if you looked at a group of workers exposed to asbestos for disease after only a couple of years of exposure?

"A. You wouldn't find any.

"Q. Why?

"A. Well, if Merewether didn't find it under the totally worst conditions imaginable in the asbestos textile industry, the unregulated asbestos textile industry of the early twentieth century, if he didn't find the workers that were exposed in those conditions had disease until after five years from onset, it's hard to imagine any find of an asbestos industry where one would see asbestosis that soon.

* * * * * *

"Q. Of what significance, again, Doctor--from a Public Health policy viewpoint, of what significance is it, if any, that asbestos causes both asbestosis and lung cancer in terms of the use of a threshold limit value?

"A. Well, the guideline here is intended to limit, if not to prevent, the disease of lung scarring, asbestosis; but the identification of a separate disease process that asbestos also caused, namely the initiation of cancer, throws open the question anew about what level might be considered acceptable or what...