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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Choi v Anvil et al (09/07/2001) sp-5465

Choi v Anvil et al (09/07/2001) sp-5465

     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

JUN E. CHOI,                  )
                              )    Supreme Court No. S-9550
               Appellant,     )
                              )    Superior Court No.
     v.                       )    4BE-99-0005 CI
                              )
GLORIA ANVIL, HAZEL AKERELREA,)    
ELENA ALEXIE, EDNA ANGAIAK,   )    O P I N I O N
RITA ANGAIAK, and ANNA        )    
WESTDAHL,                     )    [No. 5465 - September 7, 2001]
                              )
               Appellees.     )   
                              )


          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
                      Dale O. Curda, Judge.


          Appearances:   R. N. Sutliff, Anchorage, and
Laurence Keyes, Hughes, Thorsness, Powell, Huddleston & Bauman,
LLC, Anchorage, for Appellant.  Leonard R. Devaney III, Law Offices
of Leonard Devaney, Nome, for Appellee Alexie.  John S. Hedland and
Amy L. Vaudreuil, Hedland, Brennan, Heideman & Cooke, Anchorage,
for Appellees Anvil, Akerelrea, Angaiak, and Westdahl.


          Before: Fabe, Chief Justice, Eastaugh, Bryner,
and Carpeneti, Justices.  [Matthews, Justice, not participating.]


          BRYNER, Justice.


I.   INTRODUCTION
          Jun E. Choi rear-ended another car with his taxi cab. 
Plaintiffs injured in the collision sued Choi to recover their
damages and prevailed following a jury trial.  Choi appeals,
contending that the plaintiffs' failure to present expert testimony
on causation and damages required the trial court to enter a
directed verdict in his favor.  We affirm, concluding that the
plaintiffs were not required to present expert testimony to
establish their claims.
II.  FACTS AND PROCEEDINGS

          Jun Choi, a taxi cab driver for Quyana Cab in Bethel, was
driving a cab with three passengers when he rear-ended a pick-up
truck driven by Gloria Anvil.  Anvil also had three passengers in
her pick-up.  The road was icy, and Choi was unable to stop.
          No one sustained visible physical injuries in the
collision or sought medical attention immediately afterward.
Everyone except Choi and Anvil left the scene before Officer Jerry
Evan arrived to investigate the accident.  Although three of the
plaintiffs consulted physicians or health aides about pain they
experienced after the accident, apparently none of their injuries
required any specific medical treatment between the time of the
accident and the trial.
          Choi's three passengers, Anvil, and two of her passengers
filed suit for injuries allegedly suffered in the accident.  In his
answer, Choi admitted that he negligently caused the collision.
Superior Court Judge Dale O. Curda conducted a two-day jury trial
on the issues of causation and damages, with all evidence and
witness testimony occurring the first day.
          In their trial testimony, the plaintiffs complained of
various ailments like back, neck, and arm pain.  None of the
plaintiffs provided any expert testimony or otherwise offered any
evidence beyond their own testimony to establish the causation,
permanence, or extent of their alleged injuries.  Only four other
witnesses testified at trial: Officer Evan; Choi, by videotaped
deposition; Cezary Maczynski, a mechanic who testified that Choi
did not ask him for an estimate on the damages to the cab; and
Gemma Akerelrea, a community health practitioner in Scammon Bay who
testified briefly by telephone that plaintiff Hazel Akerelrea, her
sister-in-law, complained of pain after the accident.
          At the close of Anvil's case, Choi moved for a directed
verdict.  The court initially denied the motion, but later granted
it with respect to future damages.  The jury returned substantial
verdicts in favor of the plaintiffs.  Choi appeals, raising a
single issue -- that the plaintiffs were required as a matter of
law to present expert evidence to establish causation of their
"subjective injuries."
III. DISCUSSION [Fn. 1]
          Choi urges us to adopt a rule that would require expert
testimony to establish causation of "subjective injuries" in
personal injury actions. [Fn. 2]  Citing several Nebraska Supreme
Court cases, Choi argues that his proposed rule is justified
because "[s]ubjective injuries require a lay person to speculate as
to the existence and cause of [an] injury." [Fn. 3]  We decline to
adopt such a rule.
          Our case law requires expert testimony only when the
nature or character of a person's injuries require the special
skill of an expert to help present the evidence to the trier of
fact in a comprehensible format. [Fn. 4]  In Houger v. Houger, we
considered an argument that an expert was necessary to establish
that an injured worker was medically unfit for work. [Fn. 5]  We
rejected that argument, noting that "there are numerous . . .
matters involving health and bodily soundness, not exclusively
within the domain of medical science, upon which the ordinary
experience of everyday life is entirely sufficient." [Fn. 6]  We
have since affirmed this principle and "require[d] expert medical
testimony to establish a causal connection only where there is no
reasonably apparent (as distinguished from obvious) causal
relationship between the event demonstrated and the result sought
to be proved." [Fn. 7]  
          Choi's proposed Nebraska rule posits that all subjective
injuries "are of such a character as to require skilled and
professional persons to determine the cause." [Fn. 8]  But the
Nebraska courts' characterization of subjective injuries fails to
give credit to the life experiences of jurors and judges as triers
of fact.
          The record in this case demonstrates the adequacy of lay
testimony to establish causation and damages of subjective injuries
in typical cases.  The plaintiffs testified that the collision
caused their bodies to jerk, fly forward, or violently strike their
seats.  Hazel Akerelrea, for example, testified that the impact
caused her head to go "way back, just like somebody just hit her
and just pushed her head back.  And the impact on the [car seat]
was really, really hard."  The plaintiffs also testified that the
accident caused them physical pain: various plaintiffs described
pain in their necks, shoulders, arms, and backs.  Finally, the
plaintiffs testified that the accident has caused them to suffer
anxiety associated with driving, intersections, and taxi cabs. 
          This lay testimony, based on personal observation,
described a situation easily understood by a jury: a rear-end
automobile collision causing relatively common injuries. [Fn. 9] 
These injuries manifested symptoms like pain, stiffness, and loss
of strength.  Although a medical expert might have more precisely
described the relationship between the impact and the effects
described by the plaintiffs, the jury, using everyday experience,
could readily find a causal relationship without this expert
assistance. [Fn. 10]  The jury could also find that the injuries
resulted in compensable damages. [Fn. 11]  Because the causation
and injuries were reasonably related to the impact between the
automobiles, there was no need for an expert. [Fn. 12]
          In short, where alleged injuries -- including purely
subjective injuries -- are of a common nature and arise from a
readily identifiable cause, there is no need for the injured party
to produce expert testimony.  Requiring expert testimony in all
such cases would needlessly increase the cost of litigation, 
discourage injured persons from bringing small but legitimate
claims, and also burden defendants, who might feel compelled to
hire their own experts in response. 
IV.  CONCLUSION
          The judgment of the superior court is AFFIRMED.


                            FOOTNOTES


Footnote 1:

     When reviewing the denial of a directed verdict, 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. . . .  [I]f there is room for diversity
of opinion among reasonable people, the question is one for the
jury."  Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 410 (Alaska
1990).  We review questions of law de novo adopting "the rule of
law that is the most persuasive in the light of precedent, reason,
and policy."  Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 2:

     We use the term "subjective injury" to track Choi's argument
and to reflect the use of that term in the cases cited by Choi.  A
subjective injury, according to Choi, is one where there is no
observable symptom such as bleeding, swelling, or bruising, but
only non-observable symptoms like pain and loss of strength. 


Footnote 3:

     Choi's brief cites Doe v. Zedek, 587 N.W.2d 885 (Neb. 1999),
Eno v. Watkins, 429 N.W.2d 371 (Neb. 1988), and Eiting v. Godding,
214 N.W.2d 241 (Neb. 1974). 

          At oral argument, Choi retreated from the position that
all subjective injuries require expert testimony, opting instead
for the argument that some subjective injuries can be proved using
only lay testimony, but that an upper monetary limit should define
the class of injuries provable without expert testimony.  Because
Choi did not brief this proposed rule and did not specify the
proposed monetary limit that would trigger it, we do not address
this proposal separately.  See Gates v. City of Tenakee Springs,
822 P.2d 455, 460-61 (Alaska 1991) (noting that this court will not
consider new theories on appeal).


Footnote 4:

     See Houger v. Houger, 449 P.2d 766, 769 (Alaska 1969); see
also Alaska Rule of Evidence 702(a).


Footnote 5:

     See 449 P.2d at 769.


Footnote 6:

     Id. (citing 2 John H. Wigmore, Evidence sec. 568(1), at 660
(3d
ed. 1940)).  The 1979 revision of Professor Wigmore's treatise
cites numerous cases in which courts have found plaintiffs' and
other lay witnesses' testimony to be competent regarding various
illnesses and injuries.  See 2 Wigmore, Evidence sec. 568(1), at
780-83 (Chadbourn rev. 1979).


Footnote 7:

     Jakoski v. Holland, 520 P.2d 569, 575 (Alaska 1974).


Footnote 8:

     Eiting, 214 N.W.2d at 244.


Footnote 9:

     See, e.g., Roling v. Daily, 596 N.W.2d 72, 74-75 (Iowa 1999);
Walton v. Gallbraith, 166 N.W.2d 605, 606 (Mich. App. 1969);
Burandt v. Clarke, 547 P.2d 89, 89-90 (Or. 1976).


Footnote 10:

     Choi's argument that the plaintiffs' actions in leaving the
scene of the accident without seeking medical treatment were
inconsistent with their claims of injury properly goes to the
weight of the plaintiffs' testimony, not to its admissibility or
its legal sufficiency.  See, e.g., Roling, 596 N.W.2d at 74 (truck
driver involved in "horrific" accident initially refused medical
treatment at scene although subsequent examination showed broken
bones, substantial bruising, and other injuries); Eiting, 214
N.W.2d at 242 (pain developed "[t]wo or three days after the
[automobile] accident").


Footnote 11:

     Choi does not appeal the amount of damages awarded by the
jury; he contends only that the plaintiffs failed to prove the
existence of damages.


Footnote 12:

     See Jakoski, 520 P.2d at 575.