Alber v. Rodin (2026 ND 58): Post-trial Motion Required to Raise “Weight of the Evidence” Challenges on Appeal, and Trial-Court “Sole Discretion” to Award Reasonable Expert Witness Fees

I. Introduction

In Alber v. Rodin, Larry Alber sued Lyle Rodin and Darin Rodin, doing business as D&L Farms, for negligence after Alber allegedly suffered severe carbon monoxide injury while attempting to repair a furnace in a farm shop. Alber claimed a portable propane heater—allegedly not designed for indoor use—created a confined-space carbon monoxide hazard. The defendants denied negligence and disputed causation, presenting expert toxicology testimony that Alber’s conditions had “other credible explanations unrelated to his claimed exposure event.”

After a two-day jury trial in January 2025, the jury found the defendants were not negligent. Alber did not file post-trial motions under N.D.R.Civ.P. 50 (judgment as a matter of law) or N.D.R.Civ.P. 59 (new trial). On appeal, he (1) challenged the verdict as contrary to the “greater weight of the evidence,” (2) argued reversible error in the refusal of his proposed duty-of-care and regulatory jury instructions, and (3) challenged the taxation of substantial expert witness fees—especially for the defendants’ toxicologist.

The North Dakota Supreme Court affirmed, issuing three practice-significant holdings: preservation is mandatory for weight-of-evidence review; jury-instruction challenges require adequate North Dakota legal grounding and evidentiary fit; and expert witness fees are committed to trial-court “sole discretion” under statute.

II. Summary of the Opinion

  • Preservation: Alber could not raise for the first time on appeal the claim that the verdict was contrary to the greater weight of the evidence, because he filed no post-trial motion under N.D.R.Civ.P. 50 or N.D.R.Civ.P. 59.
  • Jury instructions: The district court did not commit reversible error by declining Alber’s proposed instructions on landowner duties framed in “invitee/business visitor” terms and by refusing instructions tied to 29 C.F.R. § 1926.154, where Alber inadequately briefed North Dakota authority and failed to show evidentiary applicability.
  • Expert fees: The district court did not abuse its discretion in awarding expert witness fees under N.D.C.C. § 28-26-06(5), including $50,000 for the defendants’ toxicologist (reduced from the amount requested), and the award did not violate the “American Rule” because the governing statute authorizes reasonable expert fees.

III. Analysis

A. Precedents Cited (and How They Drove the Outcome)

1. Preservation of “weight/sufficiency” challenges after a civil jury verdict

The Court relied on a consistent North Dakota line holding that a civil appellant cannot attack the evidentiary support for a jury verdict for the first time on appeal. It cited:

  • McMahon v. Sanford and Mead v. Hatzenbeller for the general rule that issues raised for the first time on appeal will not be addressed.
  • Griggs v. Fisher as the key civil-jury analogue: where the losing party argued on appeal the verdict was contrary to the evidence but had made no post-trial motion, and the Court declined review.
  • Juliuson v. Johnson, Tr. of Barbara R. Johnson Revocable Tr. for the modern articulation of the requirement: to challenge evidentiary support, the losing party must move under N.D.R.Civ.P. 50 or N.D.R.Civ.P. 59.
  • Varriano v. Bang, Reisenauer v. Schaefer, Braun v. Riskedahl, and Hultberg v. City of Garrison

The Court also clarified the weight-versus-sufficiency distinction using:

  • Cook v. Stenslie (quoted in Juliuson v. Johnson, Tr. of Barbara R. Johnson Revocable Tr.) for the principle that when a verdict appears against the weight of the evidence, it is the trial judge’s “imperative duty” to set it aside—reinforcing why the issue must be presented to the trial court first.
  • State v. Himmerick for an explanation that “weight of the evidence” is a credibility-laden inquiry best addressed by the trial judge who observed the trial.

2. Rejection of Alber’s attempt to use criminal preservation concepts in a civil appeal

Alber relied on State v. Thomas (citing State v. Kopp) to argue he could raise the “greater weight” issue without a new-trial motion. The Court distinguished those authorities as criminal sentencing/illegal sentence preservation doctrines that do not displace the civil post-trial-motion requirement. The criminal authorities did not supply a civil escape hatch from the Griggs/Juliuson preservation rule.

3. Discretionary appellate review to prevent “manifest injustice” was not invoked to bypass preservation

Alber pointed to the idea of appellate discretion to reach unpreserved issues, citing State v. Whitman (applying N.D.R.App.P. 2). The Court acknowledged the conceptual link to avoiding manifest injustice and referenced N.D.R.Civ.P. 61 (harmless error/substantial rights). But it refused to overrule or dilute the civil preservation requirement on this record—effectively signaling that discretionary review will remain exceptional and not a routine substitute for Rule 50/59.

4. Jury-instruction review standards and the “substance covered” principle

For jury instructions, the Court relied on:

  • Travelers Cas. Ins. Co. of Am. v. Williams Co. Const., Inc. and Ebach v. Ralston for reviewing instructions “as a whole” to determine whether they fairly and adequately advise the jury of the law.
  • Cartier v. Nw. Elec., Inc. (quoting Harfield v. Tate) for the proposition that instructions must be warranted by evidence and constitute reversible error only if prejudicial/misleading.
  • Rittenour v. Gibson and N.D.R.Civ.P. 61 for the error-then-harmless-error sequence in civil instruction challenges.

5. North Dakota premises-liability doctrine and the danger of importing “invitee” categories

To contextualize Alber’s “invitee/business visitor” instruction, the Court anchored the analysis in North Dakota premises law:

  • Schmidt v. Gateway Cmty. Fellowship and O'Leary v. Coenen for North Dakota’s abandonment of the common-law “licensee/invitee” categories (except as to trespassers) and the use of general negligence principles for non-trespassers.
  • Wotzka v. Minndakota Ltd. P'ship and Groleau v. Bjornson Oil Co., Inc., citing Restatement (Second) of Torts § 343A (1965), for known/obvious danger principles in North Dakota premises cases.
  • Morales v. Weatherford U.S., L.P. (citing Reyes v. Brookshire Grocery Co., and quoting Hutson v. Pate and City of El Paso v. Collins) to emphasize the doctrinal distinction between ordinary negligence (creating the danger) and premises liability (maintaining an unsafe condition), and to underscore that the claim’s nature is determined from the complaint.

While Alber cited Minnesota authorities (Zuercher v. N. Jobbing Co. and Gilmore v. Walgreen Co.) and Restatement (Second) of Torts § 343A (1965), the Court faulted him for failing to engage North Dakota law—especially given North Dakota’s rejection of the very entrant categories his instruction used.

6. Appellate briefing requirements and reply-brief waiver

The Court enforced appellate briefing discipline through:

  • Montana-Dakota Utils. Co. v. Behm (inadequately briefed issues not addressed).
  • Buchholz v. Barnes Cnty. Water Bd. (courts are not “ferrets” required to search the record unaided).
  • Koehly v. Levi (issues raised for the first time in a reply brief are not addressed).

These cases mattered because Alber’s arguments were deemed conclusory and, in part, improperly raised (e.g., the claim that the given negligence instruction was “incomplete” appeared only in the reply brief).

7. Taxation of expert witness fees: statutory “sole discretion” and reasonableness factors

On costs, the Court relied on:

  • N.D.C.C. § 28-26-06(5), which grants the district court “sole discretion” over the number of experts, the amount of fees (including preparation time), and expenses—subject to reasonableness.
  • Broten v. Carter for abuse-of-discretion review and for the proposition that trial courts are better positioned to judge necessity and reasonableness.
  • Wahl v. N. Improvement Co. for the existence of non-exclusive factors (from 98 C.J.S. Witnesses § 86 (2002)) guiding reasonableness.

The Court also noted that even if some testimony were arguably inadmissible, fee awards may still be upheld, referencing Broten v. Carter (including fees for non-testifying expert witnesses).

8. The “American Rule” does not cap expert fees where a statute authorizes them

Alber invoked the “American Rule” and a federal cost-taxation decision (Hometown Living, LLC v. R.H. Rogers & Assocs., P.C.) to argue the fees were disproportionate. The Court responded with:

  • Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc. (quoting H-T Enters. v. Antelope Creek Bison Ranch) describing the American Rule as primarily about attorney’s fees absent statutory/contract authorization.

Because N.D.C.C. § 28-26-06(5) expressly authorizes reasonable expert fees without a per diem cap, the American Rule argument did not limit the award.

B. Legal Reasoning

1. Why “greater weight of the evidence” could not be reviewed

The Court’s reasoning was functional as well as doctrinal: weight-of-evidence review inherently requires credibility assessments and reweighing—tasks appellate courts do not perform. The trial judge, having observed witness demeanor and trial dynamics, is the proper decision-maker for whether a verdict is against the weight of the evidence, and that assessment is triggered procedurally by a Rule 59 motion (or related post-trial motion practice). By filing no post-trial motion, Alber deprived the district court of the first opportunity—and the necessary record posture—to address weight-based relief.

The decision reinforces a bright-line appellate gatekeeping rule: absent a N.D.R.Civ.P. 50 or N.D.R.Civ.P. 59 motion, the Supreme Court will not entertain a civil jury verdict challenge framed as “insufficient evidence” or “contrary to the greater weight of the evidence.”

2. Why refusal of Alber’s duty-of-care and regulation instructions was affirmed

The Court applied the “instructions as a whole” standard and emphasized two recurring constraints:

  • Doctrinal fit: Alber’s proposed “invitee/business visitor” instruction imported Minnesota formulations and categories North Dakota has abandoned (following O'Leary v. Coenen). The district court instead used the general negligence instruction (based on a North Dakota pattern instruction) which both parties had proposed. The Supreme Court found Alber’s appellate argument conclusory and insufficiently tied to North Dakota premises-liability doctrine.
  • Evidentiary foundation: For 29 C.F.R. § 1926.154 (temporary heating devices), the district court identified a lack of evidence establishing the regulation’s applicability and, critically, the factual predicates for violation (e.g., required ventilation standards and proof of inadequacy). The Supreme Court upheld that gatekeeping determination: instructions not warranted by the evidence need not be given.

The Court also enforced appellate procedure: Alber’s “incomplete negligence instruction” theory surfaced only in the reply brief and was not considered under Koehly v. Levi.

3. Why the expert witness fee award stood

The Court treated the expert fee issue as a classic abuse-of-discretion inquiry under a statute conferring “sole discretion.” The district court reviewed the invoices, found the original request excessive, and reduced the toxicologist’s claimed fees to $50,000—explicitly reasoning that the billing “substantially exceeds” what was reasonably necessary for the defense to meet Alber’s claim.

Alber’s attempt to repackage admissibility objections into a costs argument did not succeed. Even assuming arguendo that parts of the toxicologist’s medical causation discussion were controversial (Alber cited Constantine v. Lenox Instrument Co., Inc.), the Supreme Court focused on the statutory standard (reasonableness and discretion) and the district court’s demonstrated, rational review process.

Finally, the Court rejected the American Rule framing because N.D.C.C. § 28-26-06(5) affirmatively authorizes expert witness fees and does not impose a federal-style per diem cap.

C. Impact

1. Civil appellate practice: preservation is non-negotiable

The decision strengthens (and publicizes) a practical appellate rule: if a party wants to argue that a civil jury’s verdict is against the weight of the evidence, the party must file a Rule 59 motion (and/or preserve sufficiency via Rule 50). Alber signals that attempts to rebrand the argument (“greater weight”) or to borrow criminal preservation doctrines will not work.

2. Jury instruction strategy: North Dakota doctrine and evidentiary predicates matter

The opinion underscores that a party seeking specialized instructions must do two things: (1) ground the request in relevant North Dakota law (especially where North Dakota has departed from traditional common-law categories), and (2) develop a trial record establishing the factual applicability of any statutory or regulatory standard the instruction would submit to the jury.

3. Costs and expert fees: meaningful exposure and trial-court deference

By affirming a substantial fee award (even after reduction) and emphasizing “sole discretion,” the Court confirms that expert fees can be a major post-verdict consequence in North Dakota state practice. The ruling incentivizes parties to litigate reasonableness in the district court with detailed objections and evidentiary support—recognizing that appellate review will be highly deferential.

IV. Complex Concepts Simplified

  • “Weight of the evidence” vs. “sufficiency of the evidence”: “Weight” asks whether the verdict is against the overall balance of credible evidence—something a trial judge evaluates by considering credibility and trial context. “Sufficiency” asks whether there is legally enough evidence for a reasonable jury to reach its verdict. In North Dakota civil cases, both require preservation through N.D.R.Civ.P. 50 and/or N.D.R.Civ.P. 59.
  • Preservation: To “preserve” an issue, a party must raise it in the district court in the proper procedural manner so the trial court can address it first. If not, the appellate court generally will not review it.
  • Harmless error (N.D.R.Civ.P. 61): Even if an error occurred, a judgment will not be disturbed unless the error affected a party’s substantial rights.
  • Premises liability vs. ordinary negligence: Premises liability focuses on an unsafe condition of property that the landowner maintained or failed to remedy; ordinary negligence focuses on conduct that created the danger. North Dakota generally applies negligence principles for non-trespassers and has abandoned rigid invitee/licensee categories.
  • Taxation of costs vs. attorney’s fees: “Costs” can include items like expert witness fees when authorized by statute. The “American Rule” typically limits shifting attorney’s fees absent statute or contract; it does not negate a statutory scheme authorizing expert fees as taxable costs.

V. Conclusion

Alber v. Rodin is a procedural and trial-management decision with substantial real-world consequences. The Court reaffirmed that a civil appellant cannot challenge a jury verdict as contrary to the greater weight of the evidence without first filing a post-trial motion under N.D.R.Civ.P. 50 or N.D.R.Civ.P. 59. It also reinforced that specialized duty or regulatory jury instructions must be supported by North Dakota doctrine and an evidentiary foundation showing applicability. Finally, it confirmed the breadth of the district court’s authority under N.D.C.C. § 28-26-06(5) to award reasonable expert witness fees, rejecting attempts to limit such awards via the American Rule where a statute authorizes them.