Bean v. Diamond Alkali Company

McQUADE, J.,

dissenting, and DONALDSON, J., concurring in the dissent.

Plaintiff Bean and the other witnesses called on his behalf were permitted over appellants’ objections to assert to the jury that the herbicide Dacthal W-75 caused extensive failure of Bean’s onion seed crop. This was prejudicial error for the following reasons.

Expert testimony has been defined generally in the following manner:

“Expert testimony is an opinion of a witness possessing peculiar knowledge, wisdom, skill, or information regarding the subject-matter under consideration, acquired by study, investigation, observation, practice, or experience, and not likely to be possessed by an ordinary layman or inexperienced person, who consequently is incapable of understanding the subject under consideration without aid of the opinion of some person who possesses such knowledge, wisdom, skill, practice, or experience.” (Emphasis added.) 1

Wigmore and judicial authorities have recognized that

“the capacity [to give expert testimony] is in every case a relative one, i. e., relative to the topic about which the person is asked to make his statement. The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it. His fitness, then, is a fitness to answer on that point. He may be fitted to answer about countless other matters, but that does not justify accepting his views in the matter in hand.” (Emphasis original.)2

*37In the case at bar-, the question is whether Bean and his supporting witnesses possessed peculiar knowledge not ordinarily possessed by the average juror on the particular point at issue, namely, chemical causation of the death of onion seed plants.

Of course, Bean had long experience as a farmer and knew something of “mildew” and “scalding” of onions. However, on direct examination in answer to the question whether he was “familiar generally with the diseases that are found in onion seed and onions,” Bean answered only that he was “just fairly familiar.” This was the only basis for his expressed opinion that “it was the Dacthal W-75 that caused the damage.” Bean had absolutely no prior experience with Dacthal W-75 or any other onion herbicide whatsoever. He concluded that Dacthal W-75 was the cause of the damage simply because he did not know of anything else that could have caused it. Bean’s supporting witnesses could claim little or no better qualification on this particular point.

Of course, plaintiff’s witness Robert Blass was properly permitted to testify concerning his own 7.7 acre “experimental” field of onions, separate portions of which were treated with the herbicides Pyramin and Dacthal W-75 and one portion of which was not treated with any herbicide. He was properly permitted to testify concerning his observations of the development or failure of the plants in each portion of his “experimental” field. Nevertheless, this witness possessed no special knowledge of the properties of Dacthal W-75. His assertion to the jury that the herbicide Dacthal W-75 caused the damage to the plants in that portion of the field on which it was used was purely suppositional. No proper foundation was laid, nor qualification shown, for the opinion of this witness that the specific herbicide did indeed cause the damage.

Thus, the assertions of these witnesses that the herbicide Dacthal W-75 did indeed cause the failure of Bean’s onion seed crop were based, not upon any peculiar knowledge of the chemical composition of this herbicide, its potency, its effects upon weeds and plants and the duration of such effects, but simply upon their lack of knowledge of any other possible agent or condition which might have produced the death of the onion seed plants. In short, these witnesses knew no more about this herbicide than the average juror could be expected to know. The inferential leap from a supposed absence of any other destructive agent or condition to the conclusion that Dacthal W-75 was the precise cause was one which Bean’s witnesses were no more qualified to make than the jury. These witnesses gave no peculiar factual aid to the jury upon this question of causation, which was the ultimate issue in the case. Therefore these witnesses were not “experts” even by the majority’s own definition, and they should not have been allowed to express their opinion upon the issue of causation. Only witnesses who are expert on the particular point at issue may give their opinion on the ultimate issue in the case.3

In this respect, the case of Paisley v. American Zinc Co.4 is quite pertinent. There the plaintiffs recovered damages to their farmland allegedly caused by emissions from defendant’s plant. The appellate court reversed the judgment:

“In this case none of appellees’ witnesses testified to any knowledge of the powers, properties or nature of the gases, fumes or smoke that they saw emitted from appellant’s plant. The witnesses described a smoke and a yellow smoké at times emitting from the stacks, and some of the witnesses smelled a gas and described a condition of dying and injured vegetation upon the lands and a depreciation in the value of the lands from the year 1917 to the date of trial from $75 to nothing. In this state of the proof *38appellees, over the objection of appellant, were permitted to inquire of the witnesses: i
‘Q. Can you tell where the smoke or gas comes from that causes that? (This refers to effect on person.)
‘A. Yes. sir, it comes from the smelter. ‘Q. In your judgment, what has caused the depreciation you have testified about ? ‘A. The smelter.
‘Q. In your judgment what has caused this depreciation in the fair cash market value of the Paisley land?
'A'. Well, it is because of that fumes from the smelter.’
“‘Other similar questions were put to appellee’s witnesses and answered in a similar manner, to all of which appellant strenuously objected on the ground that the questions called for a pure conclusion of the witness and sought to make of the witness an expert about matters of which he had no more knowledge than the jury, and that it was an inquiry as to ultimate facts and invaded the province of the jury.
“In the opinion of this court it was usurping the functions of the jury for the witnesses in this case to give their opinion as to the effect of any gases and fumes upon vegetation, and to testify that the depreciation in the value of said property was caused by appellant’s smelter.
“In the case at bar, expert testimony would have been competent to show the effect of any gases or fumes shown to emanate from appellant’s smelter upon trees, land, shrubbery and vegetation generally, but the witnesses of appellees had no more information upon that subject than the members of the jury, and for such witnesses to be permitted to state their opinions and inferences to the jury is merely usurping the functions of the jury and as prejudicial to appellant’s cause as though the witnesses had asked the jury to find for the plaintiff, and was error in this case.” (Emphases original.)

Similarly, in National Zinc Co. v. Crow,5 the plaintiff had recovered'damages for the loss of certain colts which had been raised on his farm near defendant’s smelter. The plaintiff and his supporting witnesses knew nothing of the properties of the smoke emanating from defendant’s plant and had made no scientific examination of either the vegetation on the farm or the colts. Their only qualification to give an opinion was that they had also raised colts and could think of no other cause of the colts’ deaths. On appeal the court held that the admission of the opinions of these witnesses that the zinc fumes poisoned the colts was prejudicial error, since the average juror was equally well qualified to make this inference of causation. These witnesses were not expert on the matter of chemical poisoning because they were unable to aid the jury in any way on that point.

The case at bar presents an analogous situation. Although Bean and his witnesses knew no more about herbicides than the jury, they were permitted to assert conclusions upon causation essential to the plaintiff’s recovery. Farmers were not shown to be experts on chemical herbicides in this case. In general, expert testimony must be limited to the peculiar area of expertise which witnesses possess. The prejudice resulting from a failure to do so in a case like the one at bar consists of the fact that witnesses are permitted in effect to assert to the jury their personal belief or opinion that the plaintiff should recover. The action should be referred back to the trial court for a new trial consonant with this dissent.

. ■ Rogers, Tire Law of Expert Testimony § 30- (3d ed. 1941).

. Wigmore, Evidence § 555 (3d ed. 1940), followed in Sinz v. Owens, 33 Cal.2d 749, 205 P.2d 3, 5 (1949) and Startin v. Madsen, 120 Utah 631, 237 P.2d 834, 838 (1951).

. Bell, Handbook of Evidence for the Idaho Lawyer G6-G7 (1957).

. 235 Ill.App. 22 (Illinois 1924).

. 187 Old. 513, 103 P.2d 560, 562-563 (1940).