Langness v. Fencil Urethane Systems, Inc., 20030004.

• Decision Date: 20 August 2003
• Docket Number: No. 20030004.,20030004.
• Citation: 2003 ND 132,667 N.W.2d 596
• Parties: Duane E. LANGNESS, Plaintiff and Appellant, v. FENCIL URETHANE SYSTEMS, INC., a corporation, Defendant and Appellee, RDO FARM PARTNERSHIP, d/b/a RD Offutt, Inc., a corporation; James Behrens; and Polydyne, Inc., Defendants.
• Court: North Dakota Supreme Court

667 N.W.2d 596

2003 ND 132

Duane E. LANGNESS, Plaintiff and Appellant, v. FENCIL URETHANE SYSTEMS, INC., a corporation, Defendant and Appellee, RDO FARM PARTNERSHIP, d/b/a RD Offutt, Inc., a corporation; James Behrens; and Polydyne, Inc., Defendants.

No. 20030004.

Supreme Court of North Dakota.

August 20, 2003.

Duane A. Lillehaug (argued), Leland F. Hagen (on brief), and Robert M. Light (on brief), Lee Hagen Law Office, Fargo, N.D., for plaintiff and appellant.

Randall J. Bakke (argued) and Shawn A. Grinolds (on brief), Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Duane Langness appealed from a judgment entered upon a jury verdict dismissing his action against Fencil Urethane Systems, Inc. for negligent application of epoxy primer and exposure to toxic chemicals. We hold the trial court abused its discretion in excluding the proffered testimony of Langness' expert, Dr. Alan Buck. We reverse and remand for further proceedings.

I

[¶ 2] In 1997, Langness sold RDO Farms a 70 by 186 foot steel-arched quonset for use as a potato warehouse near Mandan. Langness assisted RDO Farms in the construction of the building, including an air-exchange system. RDO Farms hired Fencil, a Wisconsin corporation owned by Darrell Fencil and his wife, to apply an epoxy primer and to spray urethane foam insulation in the interior of the warehouse. The epoxy primer was manufactured by Polydyne, Inc., and contained methyl ethyl ketone ("MEK"). The epoxy primer was in fifty-five gallon barrels with a label that cautioned not to breathe vapor or spray mist of the primer and to wear approved respirators. The label also cautioned to use the primer only in a ventilated area. A material safety data sheet ("MSDS") for the epoxy primer stated "[s]hort-term inhalation toxicity is low. Breathing small amounts during normal handling is not likely to cause harmful effects. Breathing large amounts may be harmful. Symptoms are more likely seen at air concentrations exceeding the recommended exposure limits." The MSDS for the epoxy primer also indicated "[v]apors are heavier than air and may travel along the ground or may be moved by ventilation."

[¶ 3] On September 11, 1997, Fencil began applying the epoxy primer while Langness and other workers were finishing work on the east end of the building, where the only openings to the building were located. Fencil arrived at the building site at about one p.m. and set up his equipment to begin spraying the epoxy primer in the interior of the west end of the building, placing a pump in the middle of the building and a scissors lift in the west end of the building. Fencil covered the scissors lift with polyethylene wrap and put on protective clothing, including a hood and mask with an outside air supply.

[¶ 4] According to Langness, he and several other people were working inside the east end of the building, and Fencil agreed not to start spraying until the workers were finished, which Langness told Fencil would be about two hours. According to Langness, he was working inside the building on scaffolding when he and the other workers began smelling the epoxy primer and were enveloped in a blue fog, and he asked Fencil to stop spraying. According to Donald Black, one of the other workers in the building, Fencil sprayed for a "good half hour" before Langness asked Fencil to stop. Black testified the building was full of fog and visibility was about forty feet. According to Langness, Fencil agreed to stop spraying until the workers were done, but Fencil subsequently began spraying a second time while Langness and other workers were working inside the building and a blue fog again enveloped the workers. Gary Cox, another worker in the building, testified that he saw Fencil switch the sprayer from one fifty-five gallon barrel of primer to another fifty-five gallon barrel. According to Langness, he became ill from the exposure to the spray, gathered his equipment, left the building site, and returned about a week later to complete his work. According to Cox and Langness, some of the workers had immediate reactions to the primer and were coughing and throwing up.

[¶ 5] Fencil testified he did not remember any people working inside the building when he arrived at the site. According to Fencil, he initially warned the workers he was going to start spraying in the west end of the building and no one objected. One of Fencil's employees testified all the workers were offered a protective mask to wear while the building was being sprayed, but none of them accepted the offer. Fencil testified he began spraying in the west end of the building, about 180 feet from Langness' work area, and he stopped spraying on both occasions when Langness asked him to stop. According to Fencil, he sprayed for about five minutes on each occasion at a rate of one-half gallon per minute and only sprayed about two and one half gallons of primer each time he sprayed.

[¶ 6] Langness claims Fencil negligently applied the epoxy primer inside the building and exposed him to toxic chemicals. Langness alleges he suffers from Reactive Airways Dysfunction Systems ("RADS"). Langness sued Polydyne for strict liability in tort and negligence, and Fencil, RDO, and an RDO employee for negligence. Before trial, Langness settled with all the defendants except Fencil. A jury returned a special verdict finding Fencil was not negligent. Langness appealed.

II

[¶ 7] Langness argues the trial court erred in excluding the proffered testimony of his expert, Dr. Alan Buck.

[¶ 8] Rule 702, N.D.R.Ev., provides "[i]f 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." Rule 702, N.D.R.Ev., "envisions generous allowance of the use of expert testimony if [proffered] witnesses are shown to have some degree of expertise in the field in which they are to testify." Anderson v. A.P.I. Co., 1997 ND 6, ¶ 9, 559 N.W.2d 204. A witness must be qualified as an expert before testifying, by opinion, as to scientific, technical or other specialized knowledge. Estate of Aune, 478 N.W.2d 561, 564 (N.D.1991). A witness need not have a formal title or be licensed in any particular field to qualify as an expert, and the witness's actual qualifications may be established by knowledge, skill, experience, training, or education. Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990). Experts need not be a specialist in a highly particularized field if their knowledge, training, education, and experience will assist the trier of fact. Kluck v. Kluck, 1997 ND 41, ¶ 10, 561 N.W.2d 263.

[¶ 9] The trial court must ascertain whether proffered expert testimony is reliable and relevant. Hamilton v. Oppen, 2002 ND 185, ¶ 15, 653 N.W.2d 678. Whether a witness is qualified as an expert is a discretionary decision for the trial court. Myer v. Rygg, 2001 ND 123, ¶ 8, 630 N.W.2d 62. The trial court's decision that a witness is, or is not, qualified as an expert will not be reversed on appeal absent an abuse of discretion. Id. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Id. In Myer, at ¶ 15, we discussed several cases describing a trial court's discretion within the context of the generous allowance of the use of expert testimony to assist the trier of fact:

a trial court does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification. Botnen v. Lukens, 1998 ND 224, ¶ 13, 587 N.W.2d 141 (holding trial court did not abuse its discretion by permitting a psychologist to testify with regard to generalities despite the fact the expert had not interviewed or evaluated the child or any party to the litigation); Anderson, 1997 ND 6, ¶ 18,559 N.W.2d 204 (deciding specialist in environmental engineering could testify about his perceptions of medical articles he had read to research asbestos-caused illnesses); Kluck, 1997 ND 41, ¶ 10,561 N.W.2d 263 (agreeing an educated and experienced psychologist could be qualified as an expert to testify about child custody factors); Endresen [v. Beretta USA Corp.], 1997 ND 38, ¶ 14, 560 N.W.2d 225 (holding the trial court did not abuse its discretion in admitting expert's testimony, treating the expert's lack of direct experience with specific feeding and gas venting system design of semi-automatic weapons as bearing on the weight of his testimony); Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 837 (N.D.1995) (holding the trial court did not abuse its discretion by admitting expert who did not have a specialized scientific education in fireworks, but demonstrated extensive knowledge, skill, and experience from his 35 years in the fireworks industry); Wanner v. Getter Trucking, Inc., 466 N.W.2d 833, 837 (N.D.1991) (holding the trial court did not abuse its discretion by admitting testimony of expert who, although not familiar with the rigging procedure for a traveling block assembly of an oil rig prior to the case, after studying the information was able to form the opinion that the trucking company did not use the safest available method); Estate of Aune, 478 N.W.2d 561, 563-64 (N.D.1991) (holding trial court did not abuse its discretion in allowing decedent's physician, who was not a psychiatrist, to testify about insane delusions); Oberlander, 460 N.W.2d 400, 402 (N.D. 1990) (holding trial court's per se disqualification of an expert witness based on the lack of a North Dakota psychologist license was an abuse of

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