Background
In February 2019, Larry Alber—a relative of the Rodin family who performed occasional repair work at D&L Farms—went to a shop on the property to fix a broken furnace. Because the furnace was out during cold weather, a family friend had brought in a portable propane heater not designed for indoor use. Alber claimed that on February 16, 2019, he was exposed to dangerous levels of carbon monoxide while working in the shop and suffered serious, life-altering injuries as a result. The defendants disputed causation, presenting expert toxicology testimony that none of Alber’s neurological, cardiovascular, or pulmonary conditions were attributable to the alleged exposure event.
Alber filed a negligence action against Lyle and Darin Rodin in 2023. After a two-day jury trial in January 2025, the jury returned a verdict finding the defendants were not negligent. The district court dismissed Alber’s action and awarded the defendants $55,424.65 in costs and disbursements, including $50,000 in expert witness fees for the defendants’ toxicologist, Dr. Brent Kerger. Alber appealed, challenging the sufficiency of the evidence, the jury instructions, and the expert witness fee award.
The Court’s Holding
The North Dakota Supreme Court affirmed on all three grounds. First, the court held that Alber forfeited his challenge to the sufficiency of the evidence by failing to file any post-trial motion—such as a motion for judgment as a matter of law under N.D.R.Civ.P. 50 or for a new trial under N.D.R.Civ.P. 59—in the district court. The court reaffirmed its long-standing rule that a losing civil litigant cannot raise the weight or sufficiency of the evidence for the first time on appeal, because the trial court and jury are best positioned to assess witness credibility and evidentiary conflicts.
Second, the court held that the district court did not commit reversible error by refusing Alber’s five proposed duty-of-care jury instructions. The court found that Alber’s proposed instruction on landowner duty to invitees was based on Minnesota law and common-law categories that North Dakota had abandoned, and that the general negligence pattern instruction adequately covered the applicable legal standard. The remaining four proposed instructions—relating to 29 C.F.R. § 1926.154 governing temporary heating devices—were properly rejected because Alber presented no evidence establishing that the federal regulation applied or that its ventilation requirements were violated. The court also found Alber’s appellate arguments on the jury instructions conclusory and inadequately briefed.
Third, the court held that the district court did not abuse its discretion in awarding $50,000 in expert witness fees for Dr. Kerger. Under N.D.C.C. § 28-26-06(5), fee awards for expert witnesses lie within the trial court’s sole discretion, and the district court had already substantially reduced Dr. Kerger’s requested fees of $83,548.50 after finding the original billing excessive. The court also rejected Alber’s argument that the fee award violated the American Rule, noting that the applicable state statute expressly authorizes such awards.
Key Takeaways
- In North Dakota civil cases, a party challenging the sufficiency or weight of the evidence must preserve the issue by filing a post-trial motion (Rule 50 or Rule 59) in the district court; failure to do so forfeits the argument on appeal.
- A trial court does not commit reversible error by declining proposed jury instructions that rely on out-of-state law, use common-law categories North Dakota has abandoned, or lack an evidentiary foundation—so long as the given instructions fairly and adequately cover the applicable law.
- Under N.D.C.C. § 28-26-06(5), the award of expert witness fees to a prevailing party is within the trial court’s sole discretion; a substantial reduction of requested fees reflects a rational exercise of that discretion and will not be disturbed on appeal absent an abuse of discretion.
- The American Rule limiting fee-shifting does not bar expert witness fee awards authorized by statute, and federal per diem fee standards do not govern state court cost awards.
Why It Matters
This decision reinforces a strict issue-preservation requirement for civil litigants in North Dakota: a party who loses before a jury and wishes to challenge the verdict as against the weight of the evidence must act in the trial court first. Skipping post-trial motions and going straight to appeal will result in the argument being unreviewable, regardless of how strong the claim might otherwise appear.
The opinion also provides practical guidance on jury instruction disputes and expert cost awards. Attorneys proposing specialized instructions—particularly those grounded in regulatory standards or out-of-state precedent—must supply an adequate evidentiary foundation and cite controlling in-state authority, or risk having their arguments deemed conclusory on appeal. For prevailing defendants, the case confirms that substantial expert witness fee awards survive appellate scrutiny when the trial court conducts a reasoned review and reduces excessive billing, even without a line-item accounting.