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Hamilton v. Oppen12/4/2002
n. Twenty-seven minutes after receiving the trial court's response, the jury notified the court it had completed deliberations and returned a verdict finding Hamilton 60 percent at fault, Oppen 34 percent at fault, and "Other Persons" 6 percent at fault. The difference in the percentages between the jury's question to the court during deliberations and the final verdict demonstrates either there was no prior agreement to be bound by the computation, or if there ever was such an agreement, it was ultimately abandoned by the jurors.
On this record, we conclude the trial court did not abuse its discretion in determining Hamilton did not establish that the jury rendered an improper quotient verdict entitling him to a new trial.
B.
Hamilton argues the trial court erred in refusing to allow his expert witness to testify.
Rule 702, N.D.R.Ev., provides " 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 "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." Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, 9, 559 N.W.2d 204. It is the trial court's responsibility to make certain expert testimony is reliable as well as relevant. Myer v. Rygg, 2001 ND 123, 10, 630 N.W.2d 62. Whether a witness is qualified as an expert is a decision largely within the sound discretion of the trial court. Id. at 8.
Hamilton identified Paul Gogulski as "an OSHA expert will testify as to the duty of the employer to inform individuals of the correct method to do a job such as not to have him do it as he did and explain what the correct method he should have been instructed to do." After Gogulski was deposed in Las Vegas, Nevada, Oppen made a motion in limine to exclude Gogulski's testimony. The trial court granted the motion, concluding Gogulski was not qualified "to present expert testimony on the issue of safety required in cleaning the hopper of a combine . . . [or on] the training of farm employees in the proper way to do such cleaning."
Gogulski obtained a civil engineering degree from the University of Michigan in 1960 and worked on construction related projects in both the public and private sectors throughout the United States. He had extensive experience in construction consulting and quality assurance for contractors, and at the time of the deposition, he had his own consulting forensic engineering firm in which he consults in the construction field primarily with contractors, owners and architects. Gogulski's background in farming is sparse. He had never worked in a professional capacity advising farmers. He grew up in "a rural atmosphere" in Grand Rapids, Michigan, but did not live on a farm or work on a farm. When he was a teenager, he had friends and family members who owned farms and he would visit them. His other experience with farming was "from this case particularly from talking to farmers in North Dakota and educating myself in basic farm operations." Gogulski spoke with five or six North Dakota farmers about augers and hoppers. He also researched web sites and spoke with a person who was the office supervisor for the Occupational Safety and Health Administration ("OSHA") office in Bismarck and who told him OSHA does "not enforce the statutes as they apply to agriculture," but that "the same standards should apply to farming."
Gogulski had concluded that, " esid
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