Mensink v. American Grain

• Decision Date: 21 May 1997
• Docket Number: No. 95-2104,95-2104
• Citation: 564 N.W.2d 376
• Parties: Jay MENSINK and Lynn Mensink, Appellees, v. AMERICAN GRAIN and Related Industries, A Farmer-Owned Cooperative, Cargill Elevator, Inc., A Delaware Corporation, and Agri Grain Marketing, A Partnership and/or Joint Venture, Appellants.
• Court: Iowa Supreme Court

Page 376

564 N.W.2d 376

Jay MENSINK and Lynn Mensink, Appellees, v. AMERICAN GRAIN and Related Industries, A Farmer-Owned Cooperative, Cargill Elevator, Inc., A Delaware Corporation, and Agri Grain Marketing, A Partnership and/or Joint Venture, Appellants.

No. 95-2104.

Supreme Court of Iowa.

May 21, 1997.

Rehearing Denied June 16, 1997.

David J. Dutton and Carolyn A. Rafferty of Dutton, Braun, Staack, Hellman & Iverson, P.L.C., Waterloo; Robert G. Allbee of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines; and Gary D. Ordway of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker & Ordway, Des Moines, for appellants.

James G. Sawtelle of Sullivan & Ward, P.C., Des Moines, and Tyrone P. Bujold and Mullen J. Dowdal of Robins, Kaplan, Miller & Ciresi, Minneapolis, Minnesota, for appellees.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, JJ.

LARSON, Justice.

Jay Mensink had just delivered a truckload of corn to the defendants' grain elevator when lightning struck the elevator and caused a grain dust explosion. Mensink received extensive injuries. He and his wife filed this suit, alleging several theories of recovery. The district court submitted two theories: failure of the elevator to install lightning protection devices and failure to evacuate the elevator before the explosion. The jury returned a verdict for the plaintiffs without specifying the theory under which damages were allowed. Because we conclude that it was error to submit the evacuation theory, we reverse and remand for a new trial.

I. Facts and Issues Presented.

Agri Grain Marketing, a partnership composed of Cargill Elevator, Inc. and American Grain and Related Industries, leases a grain elevator located along the Mississippi River near McGregor, Iowa. This elevator is primarily composed of two structures, the original elevator and storage facility, or "old house," and an annex, which was built in 1978. On August 10, 1992, the lightning struck the elevator, igniting the accumulated grain dust.

The defendants raise four issues: (1) submission of the fire protection theory, (2) submission of the evacuation theory, (3) an accumulation of errors, and (4) the excessiveness of the jury verdict. Because we conclude that the erroneous submission of the evacuation theory requires a new trial, it is not necessary to address issues three and four.

The defendants challenged the court's submission of the two theories of recovery by motions for directed verdict and motions for judgment notwithstanding the verdict. We review a denial of a motion for a directed verdict for a correction of errors at law. Podraza v. City of Carter Lake, 524 N.W.2d 198, 202 (Iowa 1994). We review the evidence in the same light as the district court and determine whether a fact question was generated. Frunzar v. Allied Property & Cas. Ins. Co., 548 N.W.2d 880, 884 (Iowa 1996). When reviewing the denial of a motion for a directed verdict or judgment notwithstanding the verdict, we view the evidence in the light most favorable to the nonmoving party. Morgan v. American Family Mut. Ins. Co., 534 N.W.2d 92, 96 (Iowa 1995); Podraza, 524 N.W.2d at 202. We first address the issue of whether the court erred in denying the defendants' motions attacking the submission of the issue on the failure to provide fire protection devices.

II. The Fire Protection Theory.

The defendants contend that it was error to submit this theory, primarily because (1) it rested on the testimony of a purported expert who was not competent to give an opinion; (2) the expert testimony should be rejected under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and (3) the witness was improperly allowed to express an opinion on an ultimate fact.

A. The expert's qualifications. The plaintiffs' case rests to a large extent on the testimony of Dr. Leonard Bernstein, who testified that installation of a lightning protection system would have reduced the chance of a lightning strike. The defendants attack his credentials, largely because of his lack of specific experience in grain elevator cases. As a general rule, decisions concerning a witness's qualifications are committed to the discretion of the trial court. See Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 885-89 (Iowa 1994) (allowing a psychologist's testimony regarding head injury); Iowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 N.W.2d 821, 827 (Iowa 1993) (citing Ganrud v. Smith, 206 N.W.2d 311, 314 (Iowa 1973)). "[T]he witness need not be a specialist in the particular area of testimony so long as the testimony falls within the witness' general area of expertise." Hunter v. Board of Trustees, 481 N.W.2d 510, 520 (Iowa 1992) (admitting expert testimony on corporate structure in general when witness's expertise was specifically in marketing management) (citing State v. Peterson, 219 N.W.2d 665, 673 (Iowa 1974)); see also Thompson v. Bohlken, 312 N.W.2d 501, 509 (Iowa 1981) (admitting expert testimony on safety of an industrial press when expert had general expertise in industrial manufacturing and industrial safety).

Dr. Bernstein is a retired professor of electrical and computer engineering at the University of Wisconsin. He presently works as a consulting engineer on safety issues, including lightning damage protection. Since 1965 he has been extensively involved in the study of electrocution and electrical injury. For approximately thirty years, he has studied electricity and lightning as they relate to damage to persons and property. He has been a member of a lightning protection committee involved with the drafting of a code for lightning protection. He has worked with several manufacturers, the United States Consumer Product Safety Commission, and various firefighting agencies concerning issues of electrical and lightning protection.

Dr. Bernstein has organized programs at the University of Wisconsin to study lightning and lightning protection. Attendees from across the country have included lightning protection installers, representatives of government safety agencies, and representatives of insurance companies and fire departments. He has published articles on lightning safety and methods of preventing lightning injuries. He has been a member of the National Fire Protection Lightning Protection Committee and has assisted in revisions to the Lightning Protection Code published by the National Fire Protection Association. He has consulted with Underwriters Laboratories on lightning protection equipment.

The court was well within its discretion in finding this witness to be qualified to testify.

B. The admissibility of the evidence. Iowa Rule of Evidence 702 provides:

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.

This rule of evidence and our cases decided both before and after the adoption of the rule make it clear that we are committed to a liberal view on the admissibility of expert testimony, and we have been quite deferential to the district court in the exercise of its discretion in that area. See, e.g., Williams v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997); Hutchison, 514 N.W.2d at 885; State v. Hall, 297 N.W.2d 80, 85 (Iowa 1980).

As to opinion evidence, we have stated:

Receipt of opinion evidence, lay or expert, is a matter within the trial court's discretion. We will not reverse the trial court's receipt absent a manifest abuse of that discretion to the prejudice of the complaining party. We are committed to a liberal rule on the admission of opinion testimony, and only in clear cases of abuse would the admission of such evidence be found to be prejudicial.

Iowa-Illinois Gas & Elec., 497 N.W.2d at 827 (citation omitted); accord Ganrud, 206 N.W.2d at 314-15.

These defendants, however, ask us to "give ... guidance as to how trial courts are to discharge their increased responsibility" in view of the United States Supreme Court's Daubert case. Specifically, they say that, "[i]n light of Daubert, this court should revisit its standards for the qualification and admission of expert testimony." The effect of this revisitation, according to the defendants' analysis, would be to hold that the evidence here was inadmissible.

Daubert provided a two-part test for admission of expert testimony:

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

509 U.S. at 592-93, 113 S.Ct. at 2796, 125 L.Ed.2d at 482.

These defendants suggest that we apply the Daubert test and its "general observations" bearing on the admission of such evidence. These observations include (1) whether the theory can and has been tested, (2) whether the theory has been subject to peer review and publication, (3) what is the known rate of error, and (4) whether the theory has been generally accepted. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97, 125 L.Ed.2d at 482-83.

As we recently noted in Williams, 561 N.W.2d at 824, the Daubert analysis has been held not to apply to all cases involving expert testimony; rather, it is to be used as an aid in determining the reliability of proffered evidence of a complex nature. Using the language of rule 702, complex cases would usually involve "scientific" as opposed to those involving "technical or other specialized...