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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Loncar v Gray (08/17/2001) sp-5451

Loncar v Gray (08/17/2001) sp-5451

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
	

KALA LONCAR, STEVE LONCAR,	)
and ANA LONCAR,			)	Supreme Court No. S-9390
				)
  	 Appellants,		)	Superior Court No.
				)	3AN-96-9792 CI
		v.		)
				)	O P I N I O N
KENNETH ELWOOD GRAY,		)
				)	[No. 5451 - August 17, 2001]
  	 Appellee.		)
  ______________________________)




Appeal from the Superior Court of the State of 
Alaska, Third Judicial District, Anchorage,
	Sen K. Tan, Judge.


Appearances:  Charles W. Coe, Anchorage, for 
Appellants.  John W. Hendrickson, Anchorage, 
for Appellee.


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


FABE, Chief Justice.


I.	INTRODUCTION


	Kala Loncar contends that evidentiary decisions in her 
personal injury trial were prejudicial to her case and resulted in 
an inadequate jury award.  She argues that the superior court erred 
by admitting evidence of her prior medical history, by precluding 
evidence of her government medical benefits, by restricting cross-
examination of her ex-husband, and by admitting post-accident 
medical records without foundational testimony from a physician. 
She also maintains that the superior court erred in denying her 
motion for a new trial.  Because we conclude that the superior 
court did not abuse its discretion in reaching any of these 
decisions, we affirm its rulings.

II.	FACTS AND PROCEEDINGS

	Kala Loncar was a taxi driver in Anchorage until her 
injury in a 1995 traffic accident.  Although Loncar did not 
initially appear to be seriously injured in the accident and did 
not report any loss of consciousness at the time, she soon began to 
suffer from symptoms apparently related to a closed head injury. 
Loncar complained of headaches, dizziness, vomiting, nausea, and 
mental disorientation.
	Loncar brought a personal injury negligence action 
against the other driver, Kenneth Gray.  Gray admitted liability, 
but disputed the amount of damages attributable to the accident.  
He argued that Loncar had exaggerated her symptoms and had misled 
her own doctors by falsely claiming to have suffered a loss of 
consciousness at the time of the accident.  He also argued that 
Loncar's symptoms predated the accident, and called Loncar's ex-
husband as a witness to testify that this was the case.


	During the trial, Superior Court Judge Sen K. Tan made 
several evidentiary rulings that Loncar now contests.  The court 
broadly excluded medical records and evidence regarding Loncar's 
prior medical history, but allowed her estranged ex-husband to 
testify about her medical history.  The trial court also excluded 
evidence of Loncar's Medicaid and Medicare coverage and testimony on 
the details of her divorce settlement.  In addition, it admitted 
some medical records without requiring physician testimony to 
establish a foundation for their admissibility.
	The jury awarded Loncar damages for past medical 
expenses, wage loss, pain and suffering, and loss of enjoyment of 
life.  But it did not award any damages for future expenses, 
losses, or suffering, or for her children's loss of parental 
consortium; and the jury's award of $21,435.26 for past medical 
expenses was only half of the $42,870.52 in medical bills which 
Loncar entered into evidence.  The total award was $29,435.26.  
Loncar moved for a new trial, but the superior court denied her 
motion.  Loncar now appeals.

III.	STANDARD OF REVIEW

	We review the trial court's conclusions of law de novo [Fn. 1] 
and review its decisions to admit or exclude evidence under the 
abuse of discretion standard.[Fn. 2]   To prevail on her appeal of the 
trial court's evidentiary decisions, Loncar must show that those 
decisions were erroneous and had a substantial influence on the 
outcome of the case.[Fn. 3]   Under Alaska Civil Rule 61, errors in the 
admission or exclusion of evidence are grounds for reversal only if 
failure to reverse "appears to [this] court inconsistent with 
substantial justice."
	In reviewing the denial of a motion for a new trial, we 
have said:
	The decision to grant or deny a new trial is 
	within the trial court's discretion.  If there 
	is an evidentiary basis for the jury's 
	decision, the denial of a new trial must be 
	affirmed.  However, if the evidence supporting 
	the verdict was completely lacking or so 
	slight and unconvincing as to make the verdict 
	plainly unreasonable and unjust, then we must 
	reverse the denial of a motion for a new 
	trial.  In reviewing such denials, we must 
	view the evidence in the light most favorable 
	to the non-moving party.[Fn. 4]

We will "not interfere with the exercise of [the trial judge's] 
discretion [to deny a motion for a new trial] except in the most 
exceptional circumstances and to prevent miscarriage of justice." [Fn. 5] 

IV.	DISCUSSION

A. 	Loncar's Pre-Accident Medical History
		Loncar argues that the superior court erred in admitting 
testimony regarding her prior medical history.  We conclude that 
the superior court did not err.


	Prior to trial, the superior court excluded evidence of 
Loncar's less recent medical history, including records of doctors' 
visits in 1983, 1986, and 1989 -- six to twelve years before the 
accident.[Fn. 6]   The court's initial order implied, and later 
reiterations confirmed, that Loncar's medical history during this 
period would be considered collateral, and all evidence regarding 
it would be excluded, unless the defense could offer "a medical 
opinion laying [a] nexus between her prior medical condition and 
the present medical condition."  The court informed the parties 
that it would require an offer of proof outside the presence of the 
jury before admitting any records, expert testimony, or lay 
testimony about the records and associated medical history.  Judge 
Tan later clarified, however, that Loncar's ex-husband would be 
permitted to testify about her condition at the time immediately 
before the accident.  Taken together, the court's orders established 
that recent medical history was relevant and admissible, but that 
longer-term medical history -- including Loncar's 1983-1989 medical 
records -- would be deemed collateral unless medical testimony 
established its relevance.
	On the fifth day of trial, Loncar's attorney asked a 
neuropsychologist, Dr. Paul Craig, questions that Judge Tan later 
deemed to have opened the door to prior medical history evidence. 
Loncar asked Dr. Craig whether it would be important for his 
diagnosis to know if Loncar had suffered similar symptoms "in the 
year or the two years" before the accident, and whether, if there 
had been prior doctors' appointments, "it's fair to say that the 
greater the time period between the treatments, the less 
significant they are."  Dr. Craig testified that ongoing pre-injury 
treatment for serious headaches could be significant, and 
increasingly significant the closer in time the treatment was to 
the post-accident headaches.
	Loncar's attorney also asked a lay witness, Loncar's 
friend Gordana Dadic, whether Loncar had complained of headaches or 
dizziness before the accident; Dadic said no.
	Later, despite the apparently still-valid preclusion 
order, Gray's attorney asked Mike Loncar about his ex-wife's 
dizziness, nausea, headaches, and vomiting in the ten years before 
the accident.  Mr. Loncar testified that she had complained of the 
symptoms for that entire period.
	Judge Tan admitted the testimony over Loncar's objection, 
because he found that Loncar herself had opened the door to this 
line of questioning by asking Dr. Craig about prior ongoing 
symptoms and treatment.  Judge Tan instructed the parties that "Mr. 
Loncar can testify as to his personal observations of the 
condition.  We're not talking about admitting medical testimony or 
medical exhibits. . . .  The door is open slightly, but not 
everything comes in."
	Following this ruling, Mr. Loncar's non-expert and 
allegedly hostile testimony was admitted, but the medical records 
suggesting that Loncar's previous ailments were far in the past and 
possibly unrelated to her 1995 accident were not.  Loncar did not 
attempt to remedy this disadvantageous situation by moving to 
modify Judge Tan's earlier preclusion order so that she could bring 
in the records or other medical history evidence of her own.  
However, she now argues that the superior court erred in admitting 
Mr. Loncar's testimony.
	We conclude that the superior court did not err in ruling 
that Loncar had opened the door to her ex-husband's testimony. Under 
our case law, a party may open the door to evidence on a subject by 
putting that subject at issue in the case.[Fn. 7]   Because Loncar did put 
her medical history at issue in this case, the superior court was 
within its discretion in allowing Gray to present Mr. Loncar's 
testimony about the subject.[Fn. 8]
	We considered the issue of evidentiary door-opening in 
Worthy v. State, a sexual assault case against defendant Conrad 
Worthy.[Fn. 9]   The prosecution in that case sought to generate sympathy 
for the victim and antipathy for Worthy by eliciting testimony that 
the victim had been raped once before, and that Worthy made 
reference to the previous rape during his assault.[Fn. 10]  But the trial 
court excluded testimony tending to suggest that the victim's 
previous rape allegations had in fact been unfounded.[Fn. 11]   We held 
that the trial court erred in excluding this evidence, because once 
the prosecution "opened the door" to the subject of the previous 
rape accusation, the defense was "entitled to litigate the truth or 
falsity" of that accusation. [Fn. 12]
	It was Loncar who raised the issue of her previous 
medical history at trial.  Thus, the superior court did not err in 
concluding that Loncar opened the door to Mr. Loncar's lay testimony 
about her medical history.  Dr. Craig introduced the subject in 
response to Loncar's questions.  Moreover, Loncar herself had 
already elicited lay testimony about medical history from Dadic.  
Given this background, it was not an abuse of discretion for the 
superior court to admit additional lay testimony about Loncar's 
long-term medical history. [Fn. 13]
	Loncar argues that she questioned Dr. Craig about medical 
history only to cure the defense's insinuations that she had lied 
to her doctor about her prior medical condition.[Fn. 14]   But Loncar did 
not object to Gray's insinuations at the time, and she does not now 
explain why statements by the defense should immunize her own 
intrusion into the subject area covered by the preclusion order.  
Loncar also points out that her questions to Dr. Craig carefully 
focused on the period of one to two years before the accident.  
However, both Dr. Craig's replies and Loncar's own earlier questions 
to her lay witness raised the issue of ongoing health problems and 
ongoing treatment.
B.	Medicare and Medicaid Benefits
	Despite Loncar's challenge, we affirm the superior court's 
exclusion of evidence regarding Loncar's Medicare and Medicaid 
benefits.[Fn. 15]   Under Evidence Rule 403, exclusion is appropriate if 
the evidence's "probative value is outweighed by the danger of 
unfair prejudice, confusion of the issues, or misleading the jury." 
The superior court did not abuse its discretion in applying this 
standard to exclude Medicaid evidence.
	Loncar asserts that she should have been allowed to 
introduce evidence of her Medicaid coverage for two reasons.  
First, she claims that the humiliation of accepting public 
assistance was part of her pain and suffering, and relevant to 
damages.  Second, she argues that the defense opened the door to 
Medicaid evidence by eliciting from one of Loncar's own witnesses 
testimony that Medicaid had covered some of Loncar's bills.  Loncar 
claims that she was prejudiced by this evidence because the jury 
never learned that she was in fact obligated to repay Medicaid 
benefits out of her award from this lawsuit.[Fn. 16]   Loncar raised the 
same arguments before the superior court, but the court rejected 
the arguments and excluded evidence of Medicaid benefits.
	1.	Medicaid evidence and pain and suffering damages
	Loncar argues that Medicaid evidence should have been 
admissible because accepting public assistance caused her 
additional emotional distress and pain and suffering.  The superior 
court gave Loncar broad leeway to introduce evidence on this claim, 
explaining:
	Ms. Loncar can testify about her medical 
	condition, she can testify about her medical 
	bills she has had, she can testify about her 
	difficulty in obtaining medical care, she can 
	testify about her bills and the amount that 
	[has] been run up without mentioning 
	insurance.
But if Loncar were permitted to introduce evidence of Medicaid 
payments, the court continued, the door would be opened to evidence 
from both sides on the larger issue of insurance payments -- and 
this potentially very large body of evidence would "create more 
confusion of the issues than . . . any probative value it may 
have."  The superior court's conclusion on this issue is not 
unreasonable and certainly is not an "error [that] affected the 
substantial rights of a party;"[Fn. 17]  we therefore affirm its ruling on 
this issue.
	2.	Medicaid evidence and jury concerns about double 
		recovery
	There was potential for prejudice against Loncar because 
the jury heard a reference to her Medicaid coverage, but never 
learned that Loncar had to repay some benefits out of her recovery 
in this case.[Fn. 18]   However, the court issued a jury instruction to 
cure this prejudice, and Loncar did not request any other 
appropriate relief.  Therefore, we will not reverse on these 
grounds.
	The collateral source rule "exclud[es] evidence of other 
compensation on the theory that such evidence would affect the 
jury's judgment unfavorably to the plaintiff on the issues of 
liability and damages."[Fn. 19]   Under this rule, the superior court 
appropriately excluded Medicaid evidence at the beginning of the 
trial.
	The jury learned of Loncar's Medicaid coverage, however, 
when Gray asked one of Loncar's doctors about outstanding bills, and 
the witness mentioned that Medicaid covered some of them. Loncar's 
concern is that the jury's exposure to incomplete information about 
her Medicaid benefits led it to believe that her bills were already 
covered and that her damages should be reduced accordingly.
	But Loncar failed to object when the witness testified. 
Instead she requested two possible cures, which we discuss below, 
shortly thereafter.  The superior court denied one request and 
granted the other.  We find no error in its actions.
	At trial, Loncar argued that Gray had opened the door to 
further Medicaid evidence, and that she should be permitted to 
question the witness further on the subject in order to correct any 
jury misimpressions.  She renews the argument in this appeal.  But 
the superior court found that the door was not open to this 
evidence, and we agree.  Gray did not open the door, because he did 
not make insurance coverage an issue in the case:[Fn. 20] He neither 
directly questioned any witnesses about Loncar's insurance[Fn. 21]nor 
hinted to the jury that Loncar had another source of funding for 
her medical bills.  Instead, Loncar's witness mentioned Medicaid 
sua sponte.  Given that it was not the defense that brought the 
Medicaid issue into the trial, we cannot conclude that the superior 
court abused its discretion in continuing to exclude Medicaid 
evidence.
	At trial, Loncar also requested that the superior court 
explain in the jury instructions that Loncar was obliged to repay 
Medicaid.  The court agreed that a curative instruction was 
warranted, and instructed the jury to "award the full amount of 
necessary medical expenses . . . regardless of whether they have 
been paid or who actually paid the bill.  Following the trial, the 
law provides procedures to ensure that this issue is properly 
addressed."  The instruction did not explicitly detail Loncar's 
repayment obligations, but Loncar did not object to the form of 
this instruction at the time that it was proposed.  Nor did she 
propose any alternative instruction.  Thus, to the extent that her 
appeal complains of this instruction, we reject her argument.
	We see no abuse of discretion in the superior court's 
treatment of the Medicaid evidence, and therefore decline to 
overturn these evidentiary decisions. 
 	C.	Divorce
	Loncar claims that the superior court excluded relevant 
evidence of her ex-husband's bias by ruling that the couple's 
divorce proceedings were irrelevant to the case.[Fn. 22]   However, the 
court never excluded this evidence.  It permitted Loncar to 
question her husband extensively about his alleged bias, his anger 
over the divorce, and his motives for testifying against her.  The 
only limit which the court placed on Loncar's cross-examination 
pertained not to bias but to the precise financial terms of the 
divorce settlement.  Therefore, we affirm the trial court's 
evidentiary rulings regarding the Loncars' divorce.
	D.	Post-Accident Medical Records
	Loncar argues that the superior court erred in admitting 
all of the medical records of testifying physicians and all of the 
records they relied on.  She seems to raise two arguments, both of 
which are resolved by our recent decision in Dobos v. Ingersoll.[Fn. 23] 
	Loncar implies that the records of doctors who did not 
testify are barred as hearsay.  However, in Dobos we applied 
Evidence Rule 803 to conclude that medical records "fall squarely 
within the business records exception to the hearsay rule."[Fn. 24]
	Loncar also argues that admission of the records was 
prejudicial because she did not have the opportunity to cross-
examine all of the doctors.  However, "if [Loncar] wished to 
question [the] doctors, [s]he could have called them to the stand 
[her]self."[Fn. 25]
	E.	Loncar's Motion for a New Trial
	The superior court was within its discretion in denying 
Loncar's motion for a new trial.  Loncar argues that the court 
should have granted her motion because the jury award was 
unsupported by the evidence.  We rejected a similar argument in 
Richey v. Oen.[Fn. 26]
	In Richey v. Oen, Richey was injured in a traffic 
accident. She received a directed verdict on the issue of 
negligence and presented extensive evidence of back problems, but 
the jury awarded her no damages.[Fn. 27]   We found that the trial court 
did not abuse its discretion by denying Richey a new trial.  The 
evidence supporting the verdict was not "so slight and unconvincing 
as to make the jury's verdict plainly reasonable and unjust," we 
concluded.[Fn. 28]   Because the jury had heard "a plethora of conflicting 
testimony," and because the plaintiff had seemingly sought to 
conceal her pre-accident history of back problems, an evidentiary 
basis existed for the jury to find no causation and thus no 
damages.[Fn. 29] 
	The jury in this case also had an evidentiary basis to 
doubt both the causation and the extent of Loncar's claimed injury. 
The jurors heard testimony suggesting that Loncar had experienced 
the same symptoms before the accident, testimony suggesting that 
she had misled her doctors about whether she lost consciousness at 
the time of the accident, and testimony that the doctors' diagnoses 
would have been different if they had not believed Loncar's claim to 
have lost consciousness.
	Loncar cites cases holding that, where evidence of pain 
and suffering is uncontradicted,[Fn. 30]  or where a jury awards medical 
expenses,[Fn. 31]  denial of damages for pain and suffering is inadequate 
and inconsistent.  However, Loncar was not denied damages for pain 
and suffering -- she received a damages award of $2,500 for past 
pain and suffering.  Therefore, these cases are not relevant to her 
appeal.

V.	CONCLUSION

	Because Loncar has not demonstrated that the trial court 
abused its discretion in any evidentiary decisions or in denying 
her a new trial, we AFFIRM the decision below.
 
 1.	See Walsh v. Emerick, 611 P.2d 28, 30 (Alaska 1980).
 
 2.	See Williams v. Utility Equip., Inc., 837 P.2d 1112, 1115 
	(Alaska 1991).
 
 3.	See Myers v. Robertson, 891 P.2d 199, 208 (Alaska 1995) 
	(citing Loof v. Sanders, 686 P.2d 1205, 1209 (Alaska 1984)).
 
 4.	Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 445 (Alaska 
	1989) (quoting Hayes v. Xerox Corp., 718 P.2d 929, 933 (Alaska 
	1986)).
 
 5.	Scavenius v. City of Anchorage, 539 P.2d 1161, 1166 
	(Alaska 1975).
 
 6.	The records indicate that in 1983 Loncar sought treatment 
	for headaches and nausea, possibly associated with her recent 
	pregnancy; in 1986 she visited a doctor to complain of headaches, 
	possibly migraines triggered by MSG or other food additives; and in 
	1989 she complained of breast pain accompanied by intermittent 
	dizziness.  These records were never admitted into evidence.

 7.	See Worthy v. State, 999 P.2d 771, 775 (Alaska 2000). 
	Because we find that Loncar opened the door to evidence of her 
	medical history, thereby making the evidence independently 
	relevant, we need not decide whether the evidence was actually 
	collateral.  See id. at 774 (stating that "[w]e need not decide 
	which [rule of admissibility] applies. . . .  Because the state 
	interjected the [possibly collateral issue] into the case and made 
	its occurrence a central part of the case against Worthy, the issue 
	became independently relevant.").

 8.	We note that Gray inappropriately questioned the witness 
	about medical history without first moving the court for 
	modification of its earlier protective order excluding such 
	evidence.  However, because Judge Tan did determine that the door 
	was open to medical history evidence and the protective order was 
	no longer in effect, Gray's failure was harmless. 

 9.	999 P.2d at 775.

10.	See id. at 774.

11.	See id. at 773.

12.	Id. at 775.

13.	See Landis v. Municipality of Anchorage, 915 P.2d 614, 
	616 n.1 (Alaska 1996) (applying abuse of discretion standard for 
	evidence exclusion decision).

14.	Loncar does not properly cite to the record for "the 
	defense's insinuations."  (The citations that she lists refer only 
	to Loncar's own examination of Dr. Craig.)  She probably means to 
	refer to Gray's question:

		Now, if you knew at that time, through another 
		source of information or however, that the 
		patient had not hit her head and had not lost 
		consciousness, and if you knew from another 
		source that she had had very serious headaches 
		prior to the accident, would that have changed 
		your diagnosis?

15. 	For brevity, this opinion refers to the benefits 
	collectively as Medicaid. 

16.	See AS 47.05.070(b) (establishing Medicaid's subrogation 
	rights to awards or judgments received by aid recipients).

17.	Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).

18.	See AS 47.05.070(b).  Courts reduce awards post-verdict 
	when plaintiffs have already received insurance payments and are 
	not obligated to repay the insurer.  See AS 09.17.070(c). But 
	courts cannot increase awards in cases where the plaintiff does 
	have to repay her insurer.  It is therefore particularly important 
	for courts to ensure that juries are not led by partial evidence of 
	insurance to suspect wrongly that a plaintiff's bills have already 
	been paid, and that an award will constitute double recovery.

19.	Tolan v. ERA Helicopters, 699 P.2d 1265, 1267 (Alaska 
	1985).  A second prong of the common law collateral source rule, 
	which "prohibit[ed post-verdict] reduction of plaintiff's damages 
	when he ha[d] received compensation from another source," id., was 
	abrogated by AS 09.17.070.  The statute instead requires judges to 
	reduce awards to reflect unsubrogated payments from collateral 
	sources.  (Unsubrogated payments are payments which the plaintiff 
	will not have to reimburse out of her court award.)  AS 
	09.17.070(c).

20.	See Worthy v. State, 999 P.2d 771, 775 (Alaska 2000).

21.	When the witness mentioned Medicaid, Gray had asked her 
	only the following:  "And I take it you have an outstanding bill of 
	about $16,000?"

22.	Loncar also now insinuates that some of her ex-husband's 
	testimony was hearsay.  She did not raise this objection at trial, 
	and therefore waived it.  See Alaska R. Evid. 103(a)(1) (requiring 
	a "timely objection or motion to strike . . . stating the specific 
	ground of [the] objection"); Williams v. Utility Equip., Inc., 837 
	P.2d 1112, 1116-17 (Alaska 1992) (holding that plaintiff waived his 
	objection by not making specific objections when testimony was 
	presented).

23.	9 P.3d 1020 (Alaska 2000).

24.	Id. at 1027.

25.	Id. at 1028.

26.	824 P.2d 1371, 1374 (Alaska 1992).

27.	See id. at 1372-73.

28.	Id. at 1376.

29.	Id. at 1375-76.

30.	See Walker v. Alaska Road Comm'n, 388 P.2d 406, 407 
	(Alaska 1964).

31.	See Urban v. Ziegler, 634 N.E.2d 1237, 1242-43 (Ill. 
	1994), rev'd, Snover v. McGraw, 667 N.E.2d 1310, 1314-15 (Ill. 
	1996).
	
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