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Dobos v. Ingersoll (10/6/00) sp-5318

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


GARY E. DOBOS and             )
JULMA L. SWARTOUT,            )    Supreme Court Nos. S-8567/S-8707
                              )
          Appellants/         )
          Cross-Appellees,    )
                              )    Superior Court No.
     v.                       )    3KO-96-00077 CI
                              )
RICK D. and EVA INGERSOLL,    )    O P I N I O N
as parents of MARGARITA       )
INGERSOLL, minor,             )
                              )
          Appellees/          )    [No. 5318 - October 6, 2000]
          Cross-Appellants.   )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
                      Donald Hopwood, Judge.


          Appearances:  R.N. Sutliff, Anchorage, for
Appellants/Cross-Appellees.  Tim Dooley, Anchorage, for
Appellees/Cross-Appellants.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          MATTHEWS, Chief Justice.



I.   INTRODUCTION   
          Gary Dobos hit pedestrian Margarita Ingersoll with his
taxi.  At the scene, taxi passenger Dorman Lodge made a statement
to a police officer.  This statement was admitted at the personal
injury trial by the trial court under the present sense impression
exception to the hearsay rule.  The jury subsequently found Dobos
liable for the accident.  Dobos appeals the decision to admit this
statement, claiming that it prejudiced his trial.  He also appeals
the trial court's denial of his motion for a directed verdict. 
Ingersoll cross-appeals, contesting the trial court's decision not
to award attorney's fees under Alaska Civil Rule 37(c)(2).  Because
the admission of the statement was harmless, the denial of the
directed verdict was proper, and the denial of Rule 37(c)(2) fees
for failure to admit negligence and causation was appropriate, we
affirm the trial court in those respects.  Because Rule 37(c)(2)
fees should have been granted to Ingersoll for Dobos's failure to
agree to the admissibility of certain medical records, we remand to
the trial court for a determination of appropriate attorney's fees
and costs.
II.  FACTS AND PROCEEDINGS [Fn. 1]
     A.   Facts
          On September 23, 1994, Gary Dobos was driving a taxi in
Kodiak.  During his evening shift, he was summoned by police to the
Westmark Hotel to drive Dorman Lodge to another hotel.  The
Westmark had refused to rent a room to Lodge.  When Lodge entered
Dobos's taxi, he was unruly, had been drinking, and reeked of fish.
Dobos headed for the Shelikof Lodge. 
          On the way to the Shelikof Lodge, Lodge changed his mind
and told Dobos to take him to the Star Motel instead.  Because
Dobos had already passed the access road leading to the Star Motel,
he decided to cut through the parking lot in front of Mack's
Sporting Shop.  To enter the parking lot, Dobos had to drive over
the sidewalk.
          Margarita Ingersoll, an eight-year-old, and her family
were walking from the Shelikof Lodge to the Krafts Store. 
Ingersoll was wearing jeans, a plaid shirt, a light purple jacket,
and pink shoes with velcro straps.  The family had just passed
McDonald's Restaurant when Ingersoll paused to strap her shoe. 
Ingersoll then hurried to catch up with her family, moving at
either a sprint or a fast walk.  Ingersoll and her family walked
along the sidewalk next to the parking lot in front of Mack's
Sporting Shop.  According to Victor Larionoff, who was walking with
Ingersoll's family, the area was well-lit from the McDonald's, the
Mack's Sports Shop, and the gas station across the street.  Police
Officer John Palmer, who investigated the accident, testified that
there was also a streetlight in the parking lot.
          Dobos saw Ingersoll's family to his left, but did not see
Ingersoll, who was to the right of the vehicle because she had
lagged behind the group.  As he drove into the parking lot, Dobos
was angling to the left and did not look to his right.  Dobos's car
hit Ingersoll in the leg, knocking her to the ground.  At the time
of impact, Dobos estimated that he was traveling no more than five
miles per hour.  Dobos knew that there were no bumps in the parking
lot, so he realized that he was on top of something and stopped the
car.  Rosemarie Berdi, Ingersoll's half-sister, attempted to pull
Ingersoll out from under the tire, but was unable to do so. 
Ingersoll was trapped under the front tire of the car for over a
minute, until Dobos backed the car off of her, under Larionoff's
instruction.  Dobos then radioed for an ambulance and waited in his
vehicle until the police arrived.
          The ambulance arrived "shortly," followed "shortly" by
the police.  Sergeant Michael Andre conducted tape-recorded
interviews of the witnesses on the scene, including Lodge.  Sgt.
Andre observed that Ingersoll was wearing "dark clothing" and that
Lodge was "somewhat intoxicated."  Ingersoll was taken to the
hospital and released to her mother's care that night.
     B.   Proceedings
          Rick and Eva Ingersoll, Margarita's parents, brought suit
on behalf of themselves and their daughter.  Their claims included
strict liability, reckless behavior, negligence, assault and
battery, infliction of emotional distress, and loss of consortium.
Rosemarie Berdi joined the suit as a plaintiff as well, claiming
loss of consortium and infliction of emotional distress.  The suit
named as defendants Dobos and his employers Julma Swartout, A & B
Taxi Dispatch Company, Fred Coyle, and Irene Coyle.  Berdi, Rick,
and Eva were dismissed as plaintiffs by stipulation, leaving only
Margarita.  On summary judgment, defendants Fred and Irene Coyle
and A & B Taxi Dispatch Company were dismissed from the suit.
          After Ingersoll presented her case to the jury, Dobos
moved for a directed verdict.  The court denied the motion. 
Following a three-day trial, the jury found Dobos liable for
negligence, finding that Dobos was one hundred percent responsible
for the accident, and awarded Ingersoll $42,382.80 in damages,
including past and future economic and non-economic losses.  Judge
Donald Hopwood accepted the decision of the jury and entered a
judgment in favor of Ingersoll for the amount awarded by the jury
plus interest, Civil Rule 79 costs, and Civil Rule 82 attorney's
fees.  Judge Hopwood declined to award Civil Rule 37 attorney's
fees or costs.  This appeal and cross-appeal followed.
III. STANDARDS OF REVIEW
           We review the trial court's decision to admit evidence
under a hearsay exception for abuse of discretion. [Fn. 2] 
Decisions about the admissibility of evidence are committed to the
sound discretion of the trial court. [Fn. 3]   We reverse only if
upon review of the record as a whole, we are left with a definite
and firm conviction that the trial court erred in its ruling and
the error affected the substantial rights of a party. [Fn. 4]
          In reviewing the trial court's denial of a motion for a
directed verdict, we do not weigh conflicting evidence or judge the
credibility of witnesses. [Fn. 5]  Instead, we "determine whether
the evidence, when viewed in the light most favorable to the non-
moving party, is such that reasonable persons could not differ in
their judgment as to the facts." [Fn. 6]
          The standard of review for reviewing the denial of Rule
37(c)(2) sanctions will be discussed in the sanctions section of
this opinion. 
IV.  DISCUSSION
     A.   Any Error the Trial Court May Have Made in Admitting
Lodge's Statement Is Harmless.

          At the scene of the accident, Sgt. Andre conducted
interviews of the witnesses, including Lodge.  Sgt. Andre spoke to
Lodge for approximately two or three minutes.  Lodge was not called
as a witness at the trial, apparently because of unavailability.
Instead, Sgt. Andre testified about what he heard Lodge say.
According to Sgt. Andre, Lodge told him that, as the cabdriver
began turning into the driveway of Mack's Sport Shop next to
McDonald's Restaurant, Lodge saw a child and said "hey, man, watch
it," and Dobos hit Ingersoll two or three seconds later.  Lodge
opined to Andre that Dobos "just wasn't paying attention" and that
he had hit the child "almost dead center."  Dobos challenged as
inadmissible hearsay Sgt. Andre's testimony recounting his
interview with Lodge.  The testimony was admitted over Dobos's
objection under the present sense impression exception.
          According to Alaska Rule of Evidence 801(c), hearsay is
"a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted."  The parties do not dispute that Lodge's
statement is hearsay.  They only dispute whether the evidence is
nonetheless admissible under a hearsay exception.  
          Rule 803(1) sets out the present sense impression
exception to the hearsay rule: a "statement describing or
explaining an event or condition made while the declarant was
perceiving the event or condition or immediately thereafter" is not
excluded by the hearsay rule.  Thus, to fall within the present
sense impression exception, a statement must meet three
requirements: it must describe or explain the event or condition;
it must be made during or immediately after the event; and it must
be based on the perception of the declarant.  The burden is on the
proponent of the evidence to establish the foundational facts
necessary for the hearsay exception. [Fn. 7] 
          Lodge's statement plainly is descriptive and was based on
his personal perception of the events surrounding the accident. 
Therefore the only serious question as to whether the present sense
impression exception applies is whether the statement was
sufficiently contemporaneous to meet the "immediately thereafter"
standard of the rule.  Because of the substantial uncertainty in
the record concerning when the statement was taken by Sgt. Andre,
it is unclear whether the contemporaneity foundation for admission
of the statement was established.  But we need not resolve this
question, because we hold that even if admission of the statement
was erroneous, it was harmless error.
          Under the harmless error test "[t]he members of this
court must necessarily put themselves, as nearly as possible, in
the position of the jury in order to determine whether, as
reasonable [people], the error committed probably affected their
verdict." [Fn. 8]   The burden is on Dobos to show prejudice. [Fn.
9]
          Absent Lodge's statement, the evidence of Dobos's
negligence consists of Ingersoll's testimony that she was walking
quickly on the sidewalk when she was hit, Dobos's testimony that he
was focused on angling to the left rather than looking to the
right, the testimony that the area was well-lit, and Larionoff's
testimony that Dobos did not back his car off of Ingersoll for over
a minute.  Based on this testimony, it seems likely that the jury
would have found Dobos negligent, both for his failure to look both
ways before driving over the sidewalk and for his decision not to
back the car off of Ingersoll sooner.
          Significant factors in determining whether an error was
harmless or prejudicial may include how central the testimony was
relative to the overall length of the trial and how the testimony
was used at closing argument. [Fn. 10]  In this case, Sgt. Andre's
repetition of Lodge's statement took up a short period of time over
the three-day trial.  Sgt. Andre does not appear to have been on
the stand for more than fifteen or twenty minutes.  The issue was
also discussed with Dobos in testimony that lasted less than five
minutes.  Lodge's statement was alluded to in closing argument,
when Ingersoll's counsel said "[w]e heard about the passenger
Dorman Lodge.  He's able to see something."  In light of the length
of the closing argument, this reference to Lodge was exceedingly
brief. [Fn. 11]  It is also quite vague.  The Lodge testimony was
a small segment of the plaintiff's case.  Additionally, the fact
that Lodge was intoxicated suggests that the jury would have
accorded little weight to his testimony, making it even less likely
that his statement affected the verdict.
          Because Lodge's statement played a very small role in the
trial, and the other evidence was strong enough that the jury would
probably have found Dobos to be negligent, we find that any error
the trial court may have made in admitting this evidence is
harmless. 
     B.   The Trial Court Did Not Err in Denying Dobos's Motion for
a Directed Verdict.

          Dobos argues that, assuming that the trial court should
have excluded Lodge's statement, there was no evidence supporting
Ingersoll's claim that Dobos was negligent. [Fn. 12]  But our
outline of the evidence in the preceding discussion clearly shows
this argument to be without merit.
     C.   Civil Rule 37(c)(2) Attorney's Fees and Costs

          1.   Facts and proceedings     
          During the course of litigation, Ingersoll sent Dobos
requests for admission for a number of documents and exhibits.
Dobos conceded the admissibility of the majority of these documents
and exhibits, declined to admit others, and indicated that some
would be admissible if further proofs of foundation were made.
Specifically, Dobos denied that Ingersoll's medical records from
Kodiak Island Hospital and North Pacific Medical Center were non-
hearsay or admissible.  Consequently, Ingersoll called doctors to
testify in order to lay a foundation for the medical records
identified above; the records were admitted without objection.
          Ingersoll also sent requests for admission asking that
Dobos concede that he was at least partially negligent and had
caused pain and injury to Ingersoll.  Dobos denied that he was at
all negligent.  At the end of the trial, the jury concluded that
Dobos was negligent and one hundred percent responsible for
Ingersoll's damages and injury.
          Ingersoll requested costs and attorney's fees under Civil
Rule 37(c)(2), which provides as follows:
               If a party fails to admit the genuineness
of any document or the truth of any matter as requested under Rule
36,[ [Fn. 13]] and if the party requesting the admissions thereafter
proves the genuineness of the document or the truth of the matter,
the requesting party may apply to the court for an order requiring
the other party to pay the reasonable expenses incurred in making
that proof, including reasonable attorney's fees.  The court shall
make the order unless it finds that (A) the request was held
objectionable pursuant to Rule 36(a), or (B) the admission sought
was of no substantial importance, or (C) the party failing to admit
had reasonable ground to believe that the party might prevail on
the matter, or (D) there was other good reason for the failure to
admit.

The trial court denied this request.  Ingersoll cross-appeals this
denial of Rule 37(c)(2) fees and costs. 
          2.   Standard of review
          Those exceptions to Rule 37(c)(2) that raise legal
questions we review de novo. [Fn. 14]  Those exceptions that rely
on factual findings we review for clear error. [Fn. 15]  The fourth
exception, whether there was other good reason for the failure to
admit, requires an exercise of judgment.  We review this exception
for abuse of discretion. [Fn. 16]  Once the trial court has
determined that the failure to admit was not subject to any
exception, Rule 37(c)(2) sanctions are mandatory; the trial court
lacks the discretion not to award them. [Fn. 17]  The amount of the
attorney's fees awarded is a discretionary decision, reviewed under
the abuse of discretion standard.
          3.   The "reasonable grounds" exception excuses Dobos's
               failure to admit negligence or causation.

          The "reasonable grounds" exception [Fn. 18] applies to
Dobos's failure to admit his negligence and causation.  The issue
is whether Dobos acted reasonably in believing that he might
prevail. [Fn. 19]  This is an objective test; courts look at the
record to see if there was a basis for concluding that he would
prevail. [Fn. 20]  That the evidence was ultimately admitted or the
factual admission ultimately proven does not mean that it was
unreasonable not to concede it. [Fn. 21]
                    a.   Negligence
          Ingersoll argues that if Dobos had admitted his
negligence when she sent him the request for admission, she would
not have had to go to trial at all.  She therefore argues that she
is entitled to the cost of the entire trial.  However, even though
the evidence against Dobos was strong, it was not so compelling
that he had a duty to admit that he was negligent.  Whether Dobos
was negligent was a question of fact properly determined by the
jury. [Fn. 22]
          At the time that Dobos answered the request for admission
of his negligence, he could reasonably have believed that he would
prevail on the negligence issue. [Fn. 23]  From his perspective, he
was driving slowly and carefully.  Furthermore, Ingersoll had
testified at her deposition that she was running when the car hit
her; it was not until the trial that she testified that she had
been walking. Because there was a factual dispute as to whether
Dobos was negligent, he was not required to admit his negligence
when the admission was requested.  Therefore, the trial court did
not err in denying Rule 37 fees based on Dobos's failure to admit
his negligence.
                    b.   Causation
          Dobos's refusal to admit to causation was also
reasonable.  Request for Admission No. 5 asked Dobos to admit that
his negligence caused Ingersoll's injuries.  Since he reasonably
denied negligence when its admission was specifically requested, it
was also reasonable to deny negligence when its admission was
requested in combination with causation.  Requests for Admission
Nos. 6-9 are connected to Request for Admission No. 5, so conceding
any of these would also concede negligence.  In addition, Dobos may
have reasonably believed that Ingersoll's future earnings potential
was not decreased and that she would not need further surgery.  The
trial court did not abuse its discretion in concluding that the
"reasonable grounds" exception applied to the causation issues.
          4.   Dobos's failure to concede the admissibility of        
certain medical records entitles Ingersoll to Civil
Rule 37(c) fees.
          Under Civil Rule 36, a party can request that the
opposing party admit the genuineness of any documents. [Fn. 24] 
"Rule 37(c) provides a sanction for the enforcement of Rule 36
dealing with requests for admission." [Fn. 25]  Thus, the failure
to admit the genuineness of documents subjects a party to Rule
37(c) attorney's fees and costs unless an exception applies. [Fn.
26]
          Dobos argues that it was reasonable not to acknowledge
that the medical records were admissible because they were hearsay.
Because the proponent of hearsay bears the burden of proving that
the hearsay falls within an exception, Dobos argues that he did not
have to admit that the records were admissible and not hearsay
until Ingersoll laid a foundation.  However, medical records,
including doctors' chart notes, opinions, and diagnoses, fall
squarely within the business records exception to the hearsay rule. 
That exception provides:
               A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or
diagnosis, made at or near the time by, or from information
transmitted by, a person with knowledge acquired of a regularly
conducted business activity, and if it was the regular practice of
that business activity to make and keep the memorandum, report,
record, or data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source of
information or the method or circumstances of preparation indicate
lack of trustworthiness.  The term "business" as used in this
paragraph includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for
profit.[ [Fn. 27]]

Moreover, to the extent that the rule's text leaves any doubt about
the admissibility of the hospital records, the commentary to this
provision definitively resolves the question.  Noting that entries
in the form of opinions are "commonly encountered with respect to
medical diagnoses, prognoses, and test results," the commentary
states that in order to make clear its adherence to the trend of
admissibility of such items, "the rule specifically includes both
diagnoses and opinions, in addition to acts, events, and
conditions, as proper subjects of admissible entries." [Fn. 28]
     
          The purpose of Civil Rule 36 is to expedite and
streamline discovery and litigation by establishing facts over
which there is no real dispute. [Fn. 29]  "Requests for admission
as to genuineness of documents can be particularly useful in
helping parties determine which documents that are to be introduced
at trial will present foundational problems and which will not."
[Fn. 30]  Requesting that documents which clearly fall within a
hearsay exception be admitted without having to put the record-
keeper on the stand would seem to be one of the central purposes
for which Rule 36 was designed.  Requiring testimony that medical
records were made and kept in the regular course of business is a
waste of time unless there is some reason to believe that the
records are not genuine or trustworthy.  
          That Ingersoll had the burden of proving that the
documents were not hearsay is irrelevant.  "A request is not
objectionable on the ground that . . . the request relates to
matters on which the requesting party has the burden of proof."
[Fn. 31]  The purpose of the rule is to avoid unnecessary
testimony, regardless of where the burden lies. [Fn. 32]
          Dobos conceded at oral argument that he had no reason to
believe that the medical records were inauthentic.  He explained
that the reason he denied the request to admit was so Ingersoll
would put the doctors on the stand, as Dobos wished to cross-
examine them about some of their medical conclusions.  However, if
Dobos wished to question Ingersoll's doctors, he could have called
them to the stand himself.  Denying the admissibility of medical
records when there was no reasonable question as to their
admissibility violates Rule 36(a). 
          Because Dobos had no reason to deny the admissibility of
the medical records, he should have been subjected to Rule 37(c)(2)
sanctions for these denials.  The failure to sanction him was
error.  On remand, the court should award reasonable fees and costs
for calling witnesses who testified to the facts needed to admit
Ingersoll's medical records.
V.   CONCLUSION
          The trial court's decision to admit the hearsay evidence
under the present sense impression exception was at worst harmless
error.  The motion for a directed verdict was appropriately denied,
since there was a triable issue of fact on Dobos's negligence.  We
therefore AFFIRM the trial court in these respects.
          The denial of attorney's fees based on the failure to
admit negligence and causation was not an abuse of discretion. 
Dobos could reasonably believe that he was not negligent; this is
sufficient to avoid Rule 37(c)(2) fees.  We AFFIRM this aspect of
the denial of attorney's fees under Rule 37.  However, it was error
not to award attorney's fees and costs for Dobos's refusal to admit
the genuineness of the medical records.  We therefore REMAND for a
determination of attorney's fees and costs relating to this item.


                            FOOTNOTES


Footnote 1:

     The facts and proceedings affiliated with the Rule 37(c)(2)
issue are set forth in Part IV.C. 


Footnote 2:

     See Wyatt v. State, 981 P.2d 109, 112 (Alaska 1999).


Footnote 3:

     See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).


Footnote 4:

     See Wyatt, 981 P.2d at 112; Alaska R. Civ. P. 61.


Footnote 5:

     See Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982).


Footnote 6:

     Id.; see also Alyeska Pipeline Serv. Co. v. Aurora Air Serv.,
Inc., 604 P.2d 1090, 1094 (Alaska 1979).


Footnote 7:

     See Bentley v. State, 706 P.2d 1193, 1197-98 n.2 (Alaska App.
1985) (citing Ohio v. Roberts, 448 U.S. 56, 74-75 (1980)).


Footnote 8:

     Alyeska Pipeline Serv. Co. v. O'Kelley, 645 P.2d 767, 773
(Alaska 1982) (citation omitted).


Footnote 9:

     See Zerbinos v. Lewis, 394 P.2d 886, 889 (Alaska 1964).


Footnote 10:

     See Alyeska Pipeline Serv. Co., 645 P.2d at 773 (admission of
irrelevant evidence was harmless error because it took a short time
in a multiple-day trial and was not mentioned at closing argument).


Footnote 11:

     A few examples of issues that took up considerably more time
than the Lodge statement in this closing argument include the
attorney's discussion of Hollywood's depiction of gavels and black
female judges, a rock being thrown into a pond, the value of a
mechanical crane, the trauma of a girl being forced to dress as a
boy in a play, and the battle of Trafalgar.


Footnote 12:

     Because we have already concluded that the admission was not
prejudicial error, the motion for directed verdict was properly
denied. 


Footnote 13:

     Civil Rule 36(a) allows a party to serve a written request for
the admission of the truth of any matters relating to fact or the
application of law to fact, including the genuineness of documents.


Footnote 14:

     See Strong Enters., Inc. v. Seaward, 980 P.2d 456, 458 (Alaska
1999) (legal questions associated with attorney's fees are reviewed
de novo).


Footnote 15:

     See Cockerham v. State, 933 P.2d 537, 539 n.9 (Alaska 1997)
(trial court's factual decisions reversed only if clearly
erroneous).


Footnote 16:

     See Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997)
(applying abuse of discretion standard to trial judge's
discretionary decision about relief from judgment).


Footnote 17:

     See Marchand v. Mercy Med. Ctr., 22 F.3d 933, 937 (9th Cir.
1994); Booker v. Stauffer Seeds, Inc. (In re Stauffer Seeds, Inc.),
817 F.2d 47, 49 (8th Cir. 1987); Scheufler v. General Host Corp.,
915 F. Supp. 236, 238 (D. Kan. 1995). 


Footnote 18:

     Alaska R. Civ. P. 37(c)(2)(C).


Footnote 19:

     See Washington State Dep't of Transp. v. Washington Natural
Gas Co., 59 F.3d 793, 805-06 (9th Cir. 1995).


Footnote 20:

     See 7 James Wm. Moore et al., Moore's Federal Practice sec.
37.74[4] (3d ed. 1997).


Footnote 21:

     See Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264,
1275 (9th Cir. 1990); Scheufler, 915 F. Supp. at 239. 


Footnote 22:

     See Schumacher v. City and Borough of Yakutat, 946 P.2d 1255,
1256 n.1 (Alaska 1997) (quoting Gordon v. Alaska Pac. 
Bancorporation, 753 P.2d 721, 725 (Alaska 1988)).


Footnote 23:

     See, e.g., Board of Dirs., Water's Edge v. The Anden Group,
136 F.R.D. 100, 105-06 (E.D. Va. 1991) (court looks at information
available at the time of request for admission to determine
reasonableness).


Footnote 24:

     See Berry v. Federated Mut. Ins. Co., 110 F.R.D. 441, 443
(N.D. Ind. 1986) (noting that Rule 36 is used to determine which
documents will have foundational problems).  Cf. Bernstein v. IDT
Corp., 638 F. Supp. 916, 920 (S.D.N.Y. 1986) (allowing plaintiff to
file a Rule 36 request for admission to establish genuineness of
documents); Friedman v. Prudential Life Ins. Co. of Am., 589 F.
Supp. 1017, 1021 (S.D.N.Y. 1984) (implying that Rule 36 applies to
medical records and that Rule 37(c) sanctions would follow for
failure to admit the genuineness of medical records).


Footnote 25:

     Fed. R. Civ. P. 37 advisory committee's note (1970 amend.).


Footnote 26:

     See Johnson Int'l Co v. Jackson Nat'l Life Ins. Co., 812 F.
Supp. 966, 985-90 (D. Neb. 1993) (addressing whether failure to
admit foundation of medical and prescription records violated Rule
36, mandating an award under Rule 37(c)).


Footnote 27:

     Alaska R. Evid. 803(6) (emphasis added).


Footnote 28:

     Alaska R. Evid. 803(6) cmt.


Footnote 29:

     See Moore, supra note 20, sec. 36.02[1]. 


Footnote 30:

     Id. sec. 36.10[9].


Footnote 31:

     8A Charles Alan Wright et al., Federal Practice and Procedure:
Civil sec. 2254, at 528-29 (1994).


Footnote 32:

     See Moore, supra note 20, sec. 37.70 ("Admissions not only
eliminate unnecessary proofs at trial, but also streamline
discovery and motion practice. . . .").