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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kaiser v. Sakata (01/18/2002) sp-5526

Kaiser v. Sakata (01/18/2002) sp-5526

     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
                                 

JOHN KAISER,                  )
                              )    Supreme Court No. S-9618
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-98-4488 CI
                              )
FOROOZ SAKATA; BODY           )    O P I N I O N
ERGONOMICS & REHABILITATION,  )
INC.; J. MICHAEL JAMES, M.D.; )    [No. 5526 - January 18, 2002]
and REHABILITATION MEDICINE   )
ASSOCIATES, P.C.,             )
                              )
             Appellees.       )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Eric T. Sanders, Judge.


          Appearances:  John Kaiser, pro se, Anchorage,
Appellant.  Michael R. Wirschem, Law Office of Paul D. Stockler,
Anchorage, for Appellees.


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


          FABE, Chief Justice.


I.   INTRODUCTION
          John Kaiser's medical malpractice claims were dismissed
on summary judgment because he presented no expert affidavit to
support his allegations.  Kaiser argues that his failure to procure
an expert witness arose from the superior court's failure to
accurately advise him of his legal options.  Because the superior
court made adequate allowances for Kaiser's pro se status and did
not err in the rulings challenged by Kaiser on appeal, we affirm
the grant of summary judgment.
II.  FACTS AND PROCEEDINGS
          John Kaiser was injured in a work-related accident in
April 1995. [Fn. 1]  After initial treatment by Dr. Gary Child,
Kaiser was treated by Dr. J. Michael James from August 1995 to
March 1996.  On Dr. James's advice, Kaiser also participated in
Body Ergonomics and Research (BEAR) physical therapy.  Beginning in
December 1995, Kaiser entered a "work hardening program"with
Forooz Sakata and other therapists. Kaiser continued his therapy
with Sakata until early spring of 1996.
          According to Kaiser, the work hardening program was
beyond his physical capacities and aggravated his pre-existing
injuries.  While he was participating in the program, he complained
to Sakata about pain caused by his work on the treadmill, but she
was unresponsive.  When Kaiser finally stopped participating in the
program and returned to his previous physician, Dr. Child found a
difference in Kaiser's MRI results compared to a pre-BEAR-program
MRI.  Dr. Child concluded that Kaiser's "[h]erniated nucleus
pulposa . . . has gotten worse with time and perhaps the BEAR
treatment."
          Kaiser filed a complaint against James, Sakata, Body
Ergonomics and Rehabilitation, Inc., and Rehabilitation Medicine
Associates, P.C. in March 1998.  He alleged that the defendants'
negligence had caused him additional damage beyond his pre-existing
work injuries.
          In January 1999 the defendants moved for summary
judgment.  They argued that because Kaiser had failed to timely
respond to discovery requests, the defense's requests for admission
must be deemed admitted under Alaska Rule of Civil Procedure 36(a);
as a result, they said, no issues of material fact existed to
preclude summary judgment.  At a hearing on this motion, Kaiser,
representing himself, explained that he had not responded to
discovery requests because of health complications and recent
surgery.  Superior Court Judge Eric T. Sanders granted him a
thirty-day extension to respond to both the discovery requests and
the motion for summary judgment.  The court also asked Kaiser if he
had consulted any experts concerning his claims and urged Kaiser to
seek independent evaluation.
          In the same hearing, Judge Sanders explained to the
parties that the Alaska State Medical Association had indicated
that it was currently unable to provide a medical malpractice
panel.  Based on this information, the parties waived appointment
of a panel.  The trial court asked Kaiser if he understood how the
panel worked, and Kaiser answered that he knew "a little." The
court then explained the panel's usual function and noted that
"regardless of their opinion, the parties are still allowed to go
ahead with the case"and go to trial.  Defendants waived the panel. 
Kaiser asked the court what advantage it would be to him to have a
panel.  The court responded that it could not give him legal
advice, but it told Kaiser that when a party in defendants'
position waived appointment of a panel, the plaintiff would
normally waive as well.  "Basically,"said the court, "if you want
to get your case moving, the panel will slow things down." Kaiser
agreed to waive the panel.
          At the scheduled second hearing, the defendants argued
that Kaiser had not adequately responded to discovery and that
summary judgment was still appropriate based on defendants'
original motion.  The trial court chided Kaiser for his less-than-
thorough compliance and explained to Kaiser the need to comply
fully with discovery requests.  At a subsequent hearing, the
superior court denied the defendants' summary judgment motion,
explaining that while Kaiser's discovery responses would have been
inadequate coming from a trained attorney, the court accepted them
under the more lenient standard applied to pro se litigants.
          The defendants' attorney then informed the court and
Kaiser that the defendants would next obtain an expert affidavit
supporting the defendants' position; if this evidence remained
undisputed, the defense planned to file a second motion for summary
judgment.  The trial judge explained to Kaiser in detail the legal
implications of the expected second motion.  He explained that
Kaiser would need an expert of his own to offer countervailing
testimony as to whether the standard of care had been met.  Judge
Sanders asked Kaiser if he understood this and explained that if
Kaiser could not offer expert support for his claims, then the
defendants would be entitled to summary judgment.  The trial court
stated that it was placing Kaiser on notice about the upcoming need
for an expert.  It also urged Kaiser to find an expert as soon as
possible in anticipation of the defense's motion, so that Kaiser
would not need to seek extensions when his opposition to the motion
came due.
          The defendants obtained an expert affidavit stating that
the standard of care had been met, and in October 1999 they filed
a second motion for summary judgment.  Kaiser again sought an
extension for his response, and the court again granted him extra
time.  At the summary judgment hearing, however, Kaiser still had
no expert witness to support his claim.  Kaiser explained that he
had spoken to one potential expert witness, but that the expert had
been unable to assess Kaiser's claims because Kaiser did not have
medical records of the defendants' treatment of him.  However,
Kaiser did not request assistance from the trial court in obtaining
these documents.  The court explained that, because the defendants'
expert affidavit was unrebutted, summary judgment in their favor
was legally required.  The superior court granted the defendants'
summary judgment motion.  Kaiser now appeals.
III. STANDARD OF REVIEW
          We have explained the standard of review for summary
judgment as follows:
          We review summary judgments de novo, drawing
all reasonable inferences in the nonmovants' favor and viewing all
facts in the light most favoring them.  We determine whether the
parties genuinely dispute any facts; whether, if so, those facts
are material to a viable legal theory; and, if not, whether the
undisputed facts entitle the movant to judgment as a matter of law. 
Any dispute must not only be genuine and material, but arise from
admissible evidence, such as affidavits recounting personal
knowledge of specific facts.[ [Fn. 2]]

          Whether expert testimony is required to show a breach of
duty of care is a question of law to which we apply our independent
judgment. [Fn. 3]
IV.  DISCUSSION
     A.   The Superior Court Granted Kaiser the Leniency
Appropriate to a Pro Se Litigant.

          In cases involving pro se litigants, courts relax some
procedural requirements.  We have defined duties for both judges
and the pro se litigants in such cases.  The litigant is expected
to make a good faith attempt to comply with judicial procedures
[Fn. 4] and to acquire general familiarity with and attempt to
comply with the rules of procedure [Fn. 5] -- absent this effort,
he or she may be denied the leniency otherwise afforded pro se
litigants. [Fn. 6]
          Courts "hold the pleadings of pro se litigants to less
stringent standards than those of lawyers,"particularly where
"lack of familiarity with the rules"rather than "gross neglect or
lack of good faith"underlies litigants' errors. [Fn. 7]  Judges
"should inform a pro se litigant of the proper procedure for the
action he or she is obviously attempting to accomplish,"[Fn. 8]
and inform pro se litigants of specific defects in their pleadings.
[Fn. 9] 
          1.   The superior court sufficiently advised Kaiser of
               the necessity of obtaining an expert affidavit in
               order to avoid summary judgment.

          In Breck v. Ulmer, where a pro se litigant had lost on
summary judgment, this court held that she "should have been
advised of the necessity of submitting affidavits to preclude
summary judgment."[Fn. 10]  In this case, the trial court advised
Kaiser quite clearly that if he did not submit an expert affidavit
to challenge the affidavit submitted by defendants, Kaiser would
lose on summary judgment.
          The trial judge warned Kaiser that the defendants were
going to move for summary judgment.  Once the defendants made this
motion, the trial judge explained, "your opposition is going to be
. . . due pretty soon. . . .  You're now getting notice, today on
April 20th, that it's coming, and so I want you to go out and start
making that effort so you do have that expert lined up by the time
[the defendants make] that motion. . . . If you're unable to locate
an expert who's going to back up your theory of liability, then
[the defendants] are entitled to a summary judgment." Judge
Sanders further reiterated, "what you need . . . is . . .
countervailing expert testimony,"and "you're going to need to have
an expert that's going to [support your position]."
          The trial court's warning to Kaiser regarding the need
for an expert affidavit could not have been clearer.  To the extent
that Kaiser now challenges the adequacy of the trial court's
guidance on this issue, his challenge fails.
          2.   The superior court sufficiently advised Kaiser
about the role of the expert advisory panel.
          Kaiser also argues that the superior court misled him as
to the significance of the expert medical panel.  The trial judge
summarized the usual advisory role of the panel for Kaiser, told
him that a plaintiff in his position might typically waive
appointment of a panel if the defendant agreed to do so, and told
him that appointing a panel would slow down the proceedings. 
Kaiser complains that the trial court did not warn him of the
possibility that, if Kaiser were ultimately unable to find an
independent expert to support his claims, the panel might still
provide expert opinion in his favor and save him from summary
judgment.  The superior court did not err in failing to warn Kaiser
of such a speculative eventuality.  Advising litigants of every
possible outcome of every decision is beyond the scope of the
court's obligations to the pro se litigant.  We have explained that
"[t]o require a judge to instruct a pro se litigant as to each step
in litigating a claim would compromise the court's impartiality in
deciding the case by forcing the judge to act as an advocate for
one side;"[Fn. 11] the same concern weighs against requiring a
court to advise parties of potential long-term strategic
implications of waiving a malpractice advisory panel.
          3.   The superior court was not obliged to assist Kaiser
in requesting or moving to compel discovery.

          Without discovery of his own medical records from
defendants, Kaiser had little chance of obtaining an expert
affidavit stating that defendants' treatment fell below the
standard of care.  Had Kaiser, as a pro se litigant, made a good
faith effort to obtain discovery and informed the court of his
difficulties, he might have been entitled to greater guidance from
the court regarding the mechanics of the discovery process. 
However, there is no indication in the record that Kaiser ever
requested copies of his medical records through discovery or
otherwise. [Fn. 12]  And in the eight months between April, when
the trial court "put [Kaiser] on notice"that the defendants would
prevail on summary judgment unless Kaiser obtained an expert
affidavit, and January, when the trial court granted summary
judgment to the defendants, Kaiser never squarely raised the issue
of his discovery difficulties before the court.  We therefore
conclude that the court's assistance to Kaiser was sufficient on
the matter of discovery. [Fn. 13]
     B.   The Superior Court Was Not Obliged To Appoint an Advisory
Panel.
          
          Trial judges are not obliged to appoint advisory panels,
but rather have discretion to determine whether a panel is
necessary.  Alaska Statute 09.55.536(a) states, "the court shall
appoint . . . a three-person expert advisory panel unless the court
decides that an expert advisory opinion is not necessary for a
decision in the case." (Emphasis added.)  In Taylor v. Johnson, we
recognized that this statutory language is non-compulsory, and held
that the "trial court has discretion to bypass this review process"
if it deems the panel unnecessary. [Fn. 14]  We reject Kaiser's
contention that the superior court violated a statutory obligation
in failing to appoint a panel. [Fn. 15]
     C.   The Superior Court Appropriately Granted Summary
          Judgment.

          1.   Kaiser did not show that a genuine issue of
material fact existed.

          To defeat a motion for summary judgment under Alaska
Civil Rule 56(e), a party
          may not rest upon the mere allegations or
denials of the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided by this rule, must
set forth specific facts showing there is a genuine issue for
trial.

Kaiser failed to offer affidavits or other evidence in support of
his claim. [Fn. 16]  Because "undisputed facts entitle the movant
to judgment as a matter of law,"summary judgment was appropriate.
[Fn. 17]
          Our decision in another malpractice case, Kendall v.
State, Division of Corrections, supports the grant of summary
judgment below, as well. [Fn. 18]  In Kendall, an expert advisory
panel concluded that the standard of care had been met, and the
trial court granted the defendant summary judgment based on this
evidence. [Fn. 19]  We affirmed the grant of summary judgment
because Kendall bore "the burden of demonstrating how she would
prove her case.  She presented no expert affidavits and did not
show, based on the evidence that was presented, that a reasonably
arguable case of medical negligence existed."[Fn. 20]  Kaiser's
failure to support his claims is very similar to that of the
plaintiff in Kendall.  Therefore, the superior court properly
granted summary judgment.
          2.   The defendants' expert affidavit was sufficient
under the governing statute to support summary judgment.

          Kaiser argues that Dr. Roth's expert affidavit is
insufficient to support summary judgment under AS 09.20.185.
Because he raises this challenge for the first time before this
court, it is waived. [Fn. 21]  Moreover, it appears that Dr. Roth's
affidavit does assert facts sufficient to qualify him as an expert
under AS 09.20.185.  According to Kaiser, the affidavit does not
reflect whether Dr. Roth has the training or certification required
by AS 09.20.185(a)(2) and (3). [Fn. 22]  However, Dr. Roth's
affidavit specifically lists his training and certification:
          1.   I am a physician licensed to practice
medicine in the State of California. . . .  I have been board
certified in physical medicine and rehabilitation since 1986.

          2.   I have been practicing physical medicine
and rehabilitation since 1985.  In addition to practicing, I also
served as a clinical instructor.

     D.   The Superior Court's Award of Attorney's Fees Did Not
Violate Alaska Civil Rule 82.

          Kaiser argues that the defendants waived attorney's fees
under Rule 82 by waiting more than ten days after entry of judgment
to move for fees.  However, Rule 82(c) specifies that "[f]ailure to
move for attorney's fees within 10 days, or such additional time as
the court may allow, shall be construed as a waiver of the party's
right to recover attorney's fees." (Emphasis added.)  Here, the
superior court accepted the motion for attorney's fees despite the
fact that it was one day late.  This was well within the trial
court's discretion, [Fn. 23] and there is no indication the
superior court abused that discretion.  In arguing below that the
fees motion was untimely, Kaiser did not explain how a one-day
extension might prejudice him, and he discusses no prejudice on
appeal.  Moreover, the appellees assert on appeal that the superior
court had granted Kaiser several extensions for filing pleadings
and accepted his untimely motion for reconsideration a month after
summary judgment was entered.  Kaiser does not dispute this
assertion in his reply brief.  Therefore, the superior court's
award of attorney's fees did not violate Rule 82.
V.   CONCLUSION
          Because the record and law do not support Kaiser's
arguments that the superior court erred in failing to appoint an
advisory panel, granting summary judgment, or awarding attorney's
fees, we affirm those decisions.  We also conclude that the
superior court granted Kaiser appropriate leniency and guidance in
consideration of his pro se status.  The decision of the superior
court is therefore AFFIRMED.


                            FOOTNOTES


Footnote 1:

     Because this case arises on an appeal from summary judgment,
this statement of facts reflects only Kaiser's allegations.


Footnote 2:

     Brady v. State, 965 P.2d 1, 8 (Alaska 1998).


Footnote 3:

     See D.P v. Wrangell Gen. Hosp., 5 P.3d 225, 228 (Alaska 2000).


Footnote 4:

     Wright v. Black, 856 P.2d 477, 480 (Alaska 1993), overruled on
other grounds by B.E.B. v. R.L.B., 979 P.2d 514 (Alaska 1999).


Footnote 5:

     Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097,
1099 (Alaska 1989).


Footnote 6:

     Noey v. Bledsoe, 978 P.2d 1264, 1270 (Alaska 1999).


Footnote 7:

     Wright v. Shorten, 964 P.2d 441, 444 (Alaska 1998) (internal
quotations and citations omitted).


Footnote 8:

     Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).


Footnote 9:

     See Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska
1998).


Footnote 10:

     Breck, 745 P.2d at 75.


Footnote 11:

     Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097,
1099 (Alaska 1989).


Footnote 12:

     The parties dispute what discovery requests Kaiser actually
made.  The record before us contains only blank, pre-printed
discovery forms without specific requests for discovery.


Footnote 13:

     See Bauman 768 P.2d at 1099 (holding that where a pro se
litigant has failed to file at least a defective pleading, the
court has no duty to help him).


Footnote 14:

     985 P.2d 460, 466 (Alaska 1999).


Footnote 15:

     Kaiser also states without argument that failure to appoint a
panel amounted to a violation of due process.  As discussed above,
Kaiser has no statutory right to an expert panel. He presents no
argument why he should instead have a constitutional right to one. 
His due process claims are waived for insufficient briefing.  See
Adamson v. University of Alaska, 819 P.2d 886, 889 n.3 (Alaska
1991).

          In addition, Kaiser asserts that the legislature created
malpractice panels in order to protect pro se litigants.  Given the
statute's plain language, legislative history is not a significant
legal source for our analysis.  See Peninsula Mktg. Ass'n v. State,
817 P.2d 917, 922 (Alaska 1991).  However, it is noteworthy that no
points of legislative intent listed by the legislature in enacting
or amending AS 09.55.536 relate to protection of pro se litigants. 
See ch. 26, sec. 1, SLA 1997; ch. 177, sec. 1, SLA 1978; ch. 46,
sec. 8, SLA
1982.


Footnote 16:

     To support a malpractice claim under AS 09.55.540(a), Kaiser
needed to show by a preponderance of evidence

          (1)  the degree of knowledge or skill
possessed or the degree of care ordinarily exercised under the
circumstances, at the time of the act complained of, by health care
providers in the field or specialty in which the defendant is
practicing;

          (2)  that the defendant either lacked this
degree of knowledge or skill or failed to exercise this degree of
care; and

          (3)  that as a proximate result of this lack
of knowledge or skill or the failure to exercise this degree of
care the plaintiff suffered injuries that would not otherwise have
been incurred.

Although Dr. Child's notes indicate that BEAR may have caused
Kaiser's injury, neither the notes nor anything else in the record
fulfill the first two statutory requirements.


Footnote 17:

     Brady v. State, 965 P.2d 1, 8 (Alaska 1998).


Footnote 18:

     692 P.2d 953 (Alaska 1984).


Footnote 19:

     Id. at 955.


Footnote 20:

     Id.


Footnote 21:

     See id. (plaintiff waived her challenge to statutory adequacy
of expert advisory panel's findings by not raising it before the
trial court).  Kaiser claims to have raised this objection below. 
But his previous objection was not based on AS 09.20.185; it was
based on Alaska Civil Rule 72.1, the rule concerning expert
advisory panel opinions.


Footnote 22:

     AS 09.20.185 provides:

               (a)  In an action based on professional
negligence, a person may not testify as an expert witness on the
issue of the appropriate standard of care unless the witness is

               (1)  a professional who is licensed in
this state or in another state or country;

               (2)  trained and experienced in the same
          discipline or school of practice as the
defendant or in an area directly related to a matter at issue; and

               (3)  certified by a board recognized by
the state as having acknowledged expertise and training directly
related to the particular field or matter at issue.

               (b)  The provisions of (a) of this
section do not apply if the state has not recognized a board that
has certified the witness in the particular field or matter at
issue.


Footnote 23:

     Indeed, in Gabaig v. Gabaig, we held that where a trial court
ordered a party to file attorney's fees motions within ten days,
but the party did not file for thirty-seven days, the trial court
did not abuse its discretion in nevertheless awarding that party
attorney's fees.  717 P.2d 835, 840 (1986).