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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Liimatta v. Vest (04/12/2002) sp-5556

Liimatta v. Vest (04/12/2002) sp-5556

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


INTO LIIMATTA,                )
                              )    Supreme Court Nos. S-9289/9320
        Appellant/Cross-Appellee,  )
                              )     Superior Court No.  1SI-98-34
CI
     v.                       )
                              )    O P I N I O N
DEBORAH VEST,                 )
                              )    [No. 5556 - April 12, 2002]
        Appellee/Cross-Appellant.  )
________________________________)


          Appeal  from the Superior Court of the  State
          of  Alaska,  First Judicial District,  Sitka,
          Larry C. Zervos, Judge.

          Appearances:  Sheldon E. Winters, Lessmeier &
          Winters,    Juneau,    for   Appellant/Cross-
          Appellee.  Michaela Kelley Canterbury, Kelley
          &   Kelley,  Anchorage,  for  Appellee/Cross-
          Appellant.

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

          EASTAUGH, Justice.
          CARPENETI,   Justice,   with   whom   BRYNER,
          Justice, joins, dissenting.

I.   INTRODUCTION

          I.   We consider here various evidentiary rulings in a case

arising  out of a collision between a personal injury  plaintiffs

bicycle  and  the defendants truck.  Because it was an  abuse  of

discretion  to  exclude  evidence of the plaintiffs  pre-accident

drug-seeking behavior, and because the error was prejudicial,  we

reverse the judgment against the defendant and remand for  a  new

trial.

II.  FACTS AND PROCEEDINGS

          On  July  2,  1997  a  truck driven  by  Into  Liimatta

collided with a bicycle ridden by Deborah Vest.  Vest suffered  a

broken  right clavicle, trauma to her teeth and face, an avulsion

fracture  of  her  left wrist, and bruises and abrasions  on  the

right side of her body.  Vest sued Liimatta, seeking damages  for

past   and   future  medical  expenses,  lost  earnings,   severe

impairment, disfigurement, and noneconomic losses including  pain

and  suffering,  emotional distress, loss of enjoyment  of  life,

fear,  embarrassment, humiliation, and inconvenience.   The  jury

returned a verdict awarding Vest damages of $97,287.26.  On April

12,  1999  the  superior  court  entered  a  final  judgment   of

$119,219.91  against Liimatta.  Liimatta appeals and Vest  cross-

appeals.

III. DISCUSSION

     A.   Standard of Review

          We  review a trial courts decision to admit or  exclude

evidence  for  abuse  of  discretion.1   We  find  an  abuse   of

discretion  only  when left with a definite and firm  conviction,

after  reviewing the whole record, that the trial court erred  in

its ruling.2

          We review the superior courts setoff decision  de novo,

adopting  the  rule of law that is most persuasive  in  light  of

precedent,  reason,  and  policy. 3  The  date  when  prejudgment

interest  begins to accrue is a question of law which  we  review

using our independent judgment.4

     B.   It Was an Abuse of Discretion to Exclude Evidence of Vests
          Pre-Accident Drug-Seeking Condition.
          
          Vests  medical history contains numerous references  to

drug-seeking behavior.5  Vest moved in limine to exclude evidence

of  her  drug-seeking  behavior.   The  trial  court  ruled  that

evidence   of  Vests  post-accident  drug-seeking  behavior   was

admissible, stating:

          I  can  see  that  there  are  all  sorts  of
          relevancy issues here.
          
               It   refutes  the  claim  of  pain   and
               suffering.  That means  what that means is
          she  really  wasnt  in  pain,  she  was  just
          seeking  drugs when she went to these doctors
          and  got  these medications.  It refutes  the
          extent  of  her  injuries:  that  is,   these
          injuries are just a minor matter compared  to
          the   her real motive, and that was to go get
          these  drugs.   And  it  increases  her   the
          medical   expenses  exponentially,  not   for
          legitimate treatment for actual injuries, but
          because  shes  running around  getting  drugs
          from various doctors.
          
          . . . .
          
          . . . And I think theres sufficient relevancy
          here  to  . . . outweigh the prejudice  thats
          caused by this kind of information coming in.
          
But  the trial court nonetheless excluded evidence of Vests  pre-

accident  drug-seeking behavior, reasoning that it was redundant,

repetitious,  and  highly prejudicial.   Thus,  the  trial  court

apparently  applied  Alaska Evidence Rule  403,  which  provides:

Although  relevant,  evidence may be excluded  if  its  probative

value  is outweighed by the danger of unfair prejudice, confusion

of  the  issues, or misleading the jury, or by considerations  of

undue   delay,  waste  of  time,  or  needless  presentation   of

cumulative evidence.

          1.   The  danger  of unfair prejudice did not  outweigh
               the  probative value of the evidence of Vests pre-
               accident drug-seeking behavior.
               
          When reviewing the exclusion of evidence under Evidence

Rule 403 as unfairly prejudicial, we first consider the relevance

of  the  [excluded  evidence]  and  then  determine  whether  its

prejudicial  effect  so  outweigh[s]  its  probative  value  that

admission  by  the  trial judge constitute[s] a  clear  abuse  of

discretion. 6

          Liimatta  argues  that evidence of  Vests  pre-accident

drug-seeking   behavior   was   highly   relevant   to   damages,

credibility, and causation.  We agree.

          Evidence  of  Vests pre-accident drug-seeking  behavior

was  highly relevant to Vests claim for the loss of enjoyment  of

life.   In  Ocasio  v.  Amtrak, the  plaintiff  sued  Amtrak  for

          injuries sustained when a train struck him while he was walking

on elevated railroad tracks.7  In addition to seeking damages for

past and future medical expenses, the plaintiff sought to recover

for  the  loss  of  enjoyment of life.8   The  defendant  offered

evidence  at trial that the plaintiff had a ten-year  history  of

drug  abuse problems involving cocaine, heroin, and alcohol which

had  continued until the accident.9  The trial court excluded the

evidence,  stating  that its prejudicial  effect  outweighed  its

probative value with respect to the plaintiffs claim for loss  of

enjoyment of life.10  On appeal, the Superior Court of New Jersey,

Appellate  Division, reversed, holding that a jury  assigned  the

responsibility of determining the value of a loss of enjoyment of

life should have had the opportunity to consider evidence that [a

plaintiffs]  mental and physical functions, customary  activities

and  capacity  to  enjoy  the  pleasures  of  life  were  already

restricted  by  a  long-term addiction  to  drugs.11   Similarly,

evidence  of Vests pre-accident drug-seeking behavior was  highly

relevant to her claim for the loss of enjoyment of life.

          This  evidence  was also highly relevant to  causation,

because it would have helped the jury distinguish between medical

expenses   attributable  to  Liimattas  negligence  and   medical

expenses  attributable  to  Vests  drug-seeking  behavior.    For

example, Liimatta correctly notes that

          Vest  claimed fees for the second, third  and
          fourth  opinions she sought  for  a  shoulder
          surgery  referral, despite the fact that  all
          four  opinions  recommended against  surgery.
          In    assessing   whether   these    repeated
          consultations were caused by the accident  or
          caused  by  her  drug-seeking condition,  the
          jury  would have to consider the true  extent
          of  her  drug-seeking condition as it existed
          then,  and  not  just the relatively  minimal
          evidence  in the short time between the  date
          of  the accident and these visits.  The  same
          applies  to any of her post-accident  medical
          care  requests;  the extent  of  Vests  drug-
          seeking condition was probative to the  cause
          of   each  pain  complaint  and  request  for
          medication.
          
          Evidence  of  Vests pre-accident drug-seeking  behavior

          was also relevant to her credibility.  Vest testified at trial

that  she had not had a problem with addiction to pain medication

before the accident.  Thus, evidence of Vests pre-accident  drug-

seeking  behavior  would have directly impeached  her  testimony.

Vests  credibility was particularly relevant, because a  critical

trial  issue was the legitimacy of Vests post-accident subjective

pain  complaints; her credibility when testifying might have shed

light  on the credibility of her subjective complaints.  Evidence

of  pre-accident drug-seeking behavior was also relevant  to  the

credibility  of Vests expert witness.   It would have  tended  to

impeach  Vests  expert,  Dr.  Bliss,  who  testified  that  Vests

subjective pain complaints were legitimate.

          Liimatta  also  argues that the excluded  evidence  was

relevant because, he asserts, Vest made an aggravation claim that

encompassed drug-seeking behavior.  Thus, according to  Liimatta,

Vest argued to the jury that it could award damages to Vest if it

found that Liimattas negligence had aggravated Vests drug-seeking

behavior.   While we agree that such an aggravation  claim  would

make   evidence  of  Vests  pre-accident  drug-seeking   behavior

relevant, it is not clear to what extent Vest made such  a  claim

in this case.  While Vests brief does not deny that she made such

a  claim, our review of the record does not convince us that Vest

squarely  made  this argument to the jury.  We therefore  do  not

rely  on this argument as a basis for reversing.  But an argument

by  Vest on remand that Liimattas negligence aggravated her drug-

seeking  behavior  would be an additional  reason  to  admit  the

evidence.

          Liimatta   next  argues  that  the  danger  of   unfair

prejudice  did not outweigh the probative value of this evidence.

We agree.

          In  Hiller  v.  Kawasaki Motors Corp., we  stated  that

undue  prejudice connotes not merely evidence that is harmful  to

the  other  party, but evidence that will result  in  a  decision

being  reached  by  the  trier of facts on an  improper  basis.12

          Evidence of prior drug use and addiction certainly presents a

danger  of  unfair  prejudice.13  [T]here  are  strong  attitudes

against drug use.  The introduction of evidence of drug use could

cause the jury to consider . . . [that] the person who uses drugs

is  a  bad person and could prejudice his or her case.14  Despite

undoubted  resulting prejudice, however, the probative  value  of

proffered  evidence may compel its admission.15  For example,  in

CNA Insurance Co. v. Scheffey, the Court of Appeals of Texas held

that  [i]t  is difficult to imagine that a trial court would  not

abuse its discretion if, upon balancing pursuant to Rule 403,  it

determined that the probative value of evidence . . . which bears

on  the  crux of the case, was outweighed by a danger  of  unfair

prejudice.16   As we noted above, evidence of Vests  pre-accident

drug-seeking behavior was highly relevant to the central  issues.

It  was therefore an abuse of discretion to exclude the evidence,

despite its unsavory implications, as unfairly prejudicial.

          2.   Evidence   of   Vests  pre-accident   drug-seeking
               behavior was not cumulative.
               
          The   superior  court  excluded  this  evidence  partly

because it was cumulative.  Liimatta argues that it was an  abuse

of discretion to exclude the evidence for this reason. We agree.

          In   Wasserman  v.  Bartholomew,  we  held   that   two

categories  of  evidence may properly be excluded as  cumulative:

(1)  evidence supporting an uncontested or established fact,  and

(2)  evidence repeating a point made by previous evidence.17   We

noted that [e]vidence falling within [the] second category should

be  excluded with caution, for repetition of the same evidence on

a  disputed  point  by several witnesses is often  persuasive  in

establishing  the truth of that evidence.18  We also  noted  that

excluding  evidence pertaining to the central issue at  trial  on

the  ground  that  it is cumulative is rarely  within  the  trial

courts discretion.19

          Because  Vest testified that she had not had a  problem

with addiction to pain medication before the accident, it was not

an  uncontested or established fact that Vest had engaged in pre-

          accident drug-seeking behavior.  Furthermore, although the trial

court  admitted some evidence of Vests pre-accident  drug-seeking

condition   Dr. Totten was allowed to testify about his  concerns

based on a history of [Vests] drug-seeking behavior  the excluded

evidence  did  not  repeat  a point made  by  previous  evidence,

because any repetition of the evidence was itself relevant to the

extent and severity of Vests pre-accident drug-seeking condition.20

Finally,  because Vests pre-accident drug-seeking  condition  was

relevant to the central disputes in the case, it was an abuse  of

discretion to exclude the evidence as cumulative.

          3.   There was adequate foundation for the introduction
               of  evidence  of  Vests pre-accident  drug-seeking
               behavior.
               
          Vest  argues that the evidence was inadmissible because

Liimatta  did  not  offer  expert  testimony  to  lay  a   proper

foundation for its introduction.  Vest cites Sweet v. Sisters  of

Providence, where we stated:

          It is well established that trial courts have
          the  right to ensure that proffered  evidence
          meets certain legal thresholds before it  may
          be  used at trial.  For instance, a court may
          inquire  into  whether  certain  evidence  is
          relevant and material, and whether it  merits
          exclusion under Alaska Evidence Rule 403.  It
          is  also proper for the court to ensure  that
          foundational requirements [are] satisfied.[21]

          Vests  argument is not well taken, because the  medical

testimony  at  trial  established the  necessary  foundation  for

admitting the evidence.  Dr. Totten testified:

               Q:   And  theres one note that we  would
          all want to ask you about, Doctor.
          
               It  says:  Note  she  has  a  long  past
          history  of   and  it  goes  on.   It   says:
          Medication-seeking behavior.  And I  want  to
          ask you some questions about that, sir.
          
               What  do  you mean by medication-seeking
          behavior?
          
               A:   The  this is a loosely-defined term
          thats applied in interpersonal communications
          between doctors.  Theres no diagnosis, quote,
          attached  to this, but its a  its a means  of
               communicating between physicians that  a
          patient  has   has a habit of   of  attending
          with complaints which a [physician] is unable
          to  substantiate objectively and the patients
          request is for medications.
          
Furthermore,  Dr. Paulson, an oral surgeon, agreed that  patients

with  drug-seeking behavior will sometimes go so far as  to  have

their  teeth  extracted  to enable that pain  medicine  behavior.

Thus, there was adequate foundation in the record to support  the

admission   of   evidence  of  Vests  pre-accident   drug-seeking

behavior.

          4.   The error was prejudicial.

          Vest  argues that any error in excluding this  evidence

was harmless.  She claims that Liimatta was permitted to make his

argument  to the jury that Vests damages were more a  product  of

her  drug  seeking  behavior  than of  any  actual  injuries  she

received in the collision.  Vest notes that Liimatta was  allowed

to   present   evidence   of  Vests  post-accident   drug-seeking

condition, and that Dr. Totten was allowed to testify  about  the

history  of  his treatment of Vest, including his concerns  about

her  drug-seeking  behavior.  Vest also claims that  [w]hat[ever]

point  there was to be made in the introduction of Mr.  Liimattas

requested evidence was made.  Ms. Vest was not awarded  the  full

measure  of  her requested past medical expenses, no damages  for

future  loss  of  earning  capacity and  no  damages  for  future

physical impairment.  (Emphasis deleted.)

            Liimatta counters that because the excluded  evidence

was  directly  relevant to the central disputes in the  case,  it

cannot  be said with fair assurance that the jury would not  have

been swayed if the evidence had been introduced.

          The potential opportunity to cross-examine Vest herself

about  some of the excluded records does not render the exclusion

harmless.  To the extent the records contain admissions Vest made

to  health professionals, her answers on cross-examination  about

the admissions could be effectively impeached only by showing the

records  to  the jury, something that their exclusion  apparently

precluded.   To the extent the records contained observations  or

opinions of health professionals, cross-examination of Vest would

have  been  ineffective because she did not have the training  to

respond to such questions.

          The  dissent would affirm, partly because it  concludes

that  Liimattas  failure to make an offer of proof  deprived  the

trial  court of an opportunity to rule on the probative value  of

particular documents.22  But there is no legitimate dispute  that

at  least  some  of  the pre-accident medical records  that  were

excluded contained evidence which was highly relevant, as we have

noted  above.  We read the trial courts exclusionary  rulings  to

encompass  these  records  and to have  rendered  futile  further

attempts by Liimatta to admit them into evidence.

          A  judgment must be reversed under Alaska Civil Rule 61

if  (1)  evidence was erroneously excluded and (2) the  exclusion

prejudiced  the  offering  party.23  An  erroneous  exclusion  of

evidence  is prejudicial to the offering party if we  cannot  say

with  fair  assurance, after stripping the erroneous action  from

the  entire evidence, that the jury was not substantially  swayed

or affected by the error.24  In making this determination, we must

necessarily  put  [ourselves], 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.25

Because,  as  noted  above,  the  excluded  evidence  was  highly

relevant  to  the critical disputes in this case, we  cannot  say

with fair assurance that its exclusion did not sway or affect the

jury.   We  therefore reverse the judgment and remand for  a  new

trial.  Any embarrassing information in the medical records which

is not particularly relevant on remand may be redacted.

          Because we reverse and remand for a new trial, we  need

not  address  Liimattas argument that the trial  court  erred  by

instructing  the  jury on aggravation of Vests preexisting  drug-

seeking behavior after it excluded this evidence.  Remanding  for

a  new  trial alleviates any prejudice stemming from an  untimely

          assertion of the aggravation claim.

     C.   It  Was  Not an Abuse of Discretion to Exclude Evidence
          of Vests Receipt of Collateral Source Benefits.
          
          Vest  sought before trial to exclude evidence that  she

had  received collateral source benefits  free medical and dental

care  at  Southeast  Alaska  Regional  Health  Corporation,   and

eligibility  for  Medicare  and  Medicaid.   The  superior  court

excluded the evidence under the collateral source rule.  Liimatta

argues that it was an abuse of discretion to exclude the evidence

for  this reason without weighing its probative value against the

dangers  of unfair prejudice and confusion of the issues and  the

jury.

          In  Tolan  v.  ERA  Helicopters,  Inc.,  we  held  that

evidence  of  the  receipt  of  collateral  source  benefits   is

admissible if offered for a purpose other than the diminution  of

the  plaintiffs  damages.  When such an offer is made  the  court

should  not automatically admit or reject the evidence.  It  must

weigh its probative value against the dangers of unfair prejudice

and confusion of the issues and the jury.26

          Liimatta  argued below that Vests receipt of collateral

source  benefits  was  relevant to the  issue  of  mitigation  of

damages.   He  claimed  that Vest prolonged  the  period  of  her

disability partly because she did not have to pay for medical and

dental  care.   The  trial  court  excluded  evidence  of   Vests

collateral  source  benefits  without  explicitly  weighing   the

probative  value  of the evidence against the dangers  of  unfair

prejudice and confusion of the issues and the jury.27

          Although the trial court excluded the evidence of Vests

receipt   of   collateral  source  benefits  without   explicitly

balancing  its  probative value against  the  dangers  of  unfair

prejudice and confusion of the issues and the jury, any error  in

failing  to  do  so is harmless if balancing would have  dictated

exclusion of the evidence.28

          Courts  have  recognized that evidence of a  plaintiffs

receipt of collateral source benefits is relevant to the issue of

          malingering.29  Nevertheless, it is usually acknowledged that the

trial  judge  should  exclude such evidence,  or  admit  it  only

warily.   Chief among [the] reasons is the possible prejudice  to

the  plaintiff which attends informing the jury that  [s/]he  has

already  received  some  .  .  . compensation  for  the  injuries

complained of.30  Furthermore,  [i]nsofar as [such] evidence bears

on  the  issue  of  malingering, there will  generally  be  other

evidence   having  more  probative  value  and   involving   less

likelihood  of  prejudice than the receipt of [collateral  source

benefits].31  Because a balancing of the probative value  of  the

evidence against the dangers of unfair prejudice and confusion of

the  issues and the jury would have dictated exclusion, any error

was harmless.

     D.   It Was Not an Abuse of Discretion to Exclude Dr. Smiths
          Letter  to the Social Security Disability Determination
          Unit.
          
          Liimatta next argues that it was an abuse of discretion

to   exclude  Dr.  Kim  Smiths  letter  to  the  Social  Security

Disability Determination Unit.  Her letter concluded that [t]here

didnt  seem  to be a great amount of impairment in  [Vest].   The

superior  court excluded Dr. Smiths letter because  she  had  not

been  called as a witness to testify about it.  Liimatta contends

that  Dr.  Smiths letter was an admissible business record  under

Alaska Evidence Rule 803(6).  We disagree.

          Under   Alaska  Rules  of  Evidence  801  and  802,   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, is hearsay and is inadmissible.  But Rule

803(6) excepts from the hearsay rule:

          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.
          
          Medical records kept by hospitals and doctors are often

admitted  under the business records exception.32   However,  the

evidence  Liimatta  proffered was not a  medical  record,  but  a

letter  sent  by  Dr.  Smith  to the Social  Security  Disability

Determination Unit.  Because Liimatta did not establish  that  it

was  the  regular  practice33 of Dr. Smith to  prepare  and  send

evaluation    reports   to   the   Social   Security   Disability

Determination  Unit,  the  letter  was  not  a  business   record

admissible under Rule 803(6).  It was therefore not an  abuse  of

discretion to exclude the letter.

     E.   It  Was  an Abuse of Discretion to Exclude Evidence  of
          Vests Mental Disorders.
          
          Vest  moved  in  limine  to  exclude  evidence  of  her

preexisting  mental  disorders.  Vest  had  been  diagnosed  with

bipolar  disorder and agoraphobia, and was incapable  of  working

during  eight  years preceding the accident.  The superior  court

granted   Vests  motion,  excluding  evidence  of  Vests   mental

disorders  under Alaska Evidence Rule 403.  Liimatta argues  that

it was an abuse of discretion to exclude this evidence because it

was highly relevant to Vests claim for future lost earnings.   We

agree.

          Evidence  of a plaintiffs preexisting mental disability

is  admissible when it is relevant to a claim for future loss  of

earning capacity.34  Indeed, the jury instructions on Vests future

loss  of earning capacity claim stated that the jury may consider

[Vests]  health, physical and mental abilities; her  work  habits

and  occupation  before the accident . . .  .  (Emphasis  added).

Evidence of Vests preexisting mental disabilities was also highly

relevant  to  her past lost earnings claim.  Such evidence  would

have tended to establish the extent to which Vests post-accident,

pre-trial  inability  to work was caused by Liimattas  negligence

rather  than  Vests  preexisting  mental  disabilities.   It  was

          therefore an abuse of discretion to exclude the evidence.

     F.   It  Was  Not  an  Abuse of Discretion  to  Exclude  the
          Medical Records Summary.
          
          At  trial,  Liimatta sought admission of a  summary  of

Vests  medical  records and history under  Alaska  Evidence  Rule

1006, which provides: The contents of voluminous writings .  .  .

which  cannot conveniently be examined in court may be  presented

in the form of a chart, summary, or calculation.  The trial court

excluded  the summary.  Liimatta argues that it was an  abuse  of

discretion to exclude the summary.

          A Rule 1006 summary is admissible only if it accurately

reflects  the summarized evidence.35  The trial court found  that

the  summary Liimatta sought to admit did not accurately  reflect

the  medical  records it purported to summarize, noting  that  it

dwelled very heavily on every negative thing that could be found.

Because  the medical records underlying the summary are not  part

of  the  record on appeal, we cannot independently determine  the

summarys accuracy and therefore have no basis for holding that it

was error not to admit it into evidence.36  Since Liimatta has not

demonstrated  that  the  summary  was  accurate,  we  affirm  its

exclusion.

     G.   The  Trial  Court Properly Offset the Judgment  by  the
          Amount of Funds Advanced to Vest by Liimattas Insurer.
          
          Before  trial,  Liimattas insurer advanced  $10,214  to

Vest  under  a  written  agreement that  the  payments  would  be

credited  to any judgment Vest obtained at trial or in settlement

of her claim.  The trial court accordingly offset the judgment by

$10,214.  In her cross-appeal, Vest claims that it was  error  to

offset the judgment by the amount advanced to her.

          Vest first contends that Liimatta is not entitled to an

offset under AS 09.17.070,37 because he cannot establish that the

funds  advanced  were intended to compensate  her  for  the  same

injury38 for which the jury awarded damages.  Vest argues that the

advanced  funds  were intended to compensate her  for  undisputed

damages  which  she  did  not claim at  trial,  rather  than  the

          disputed damages which she litigated and the jury awarded.

          Vests  reliance  on  AS 09.17.070 is  misguided.   That

statute  applies by its terms only to funds a plaintiff  receives

from  collateral sources.39  In Chenega Corp. v. Exxon Corp.,  we

defined  a  collateral  source as  a source  [that]  is  entirely

independent  of  and  collateral to a wrongdoer  who  is  legally

responsible for the injuries  to a plaintiff, and concluded  that

a  tortfeasors insurer is not a collateral source.40   The  funds

advanced  by  Liimattas  insurer  were  therefore  not   from   a

collateral source, and AS 09.17.070 does not apply.

          Furthermore,  Vests assertion that the  advanced  funds

were intended to compensate her for undisputed damages which  she

did  not claim at trial is inconsistent with the language of  her

written  agreement  with Liimattas insurer.   Each  receipt  Vest

signed  for  funds advanced by Liimattas insurer  provides:  This

amount is to be credited to any final settlement or to the amount

payable under our policy for any judgment which you may obtain as

a  result  of  your accident on July 2, 1997.  That the  advanced

funds   were  to  be  credited  to  any  judgment  Vest  received

necessarily implies that the parties intended the advanced  funds

to compensate Vest for litigated damages.

          Vest next argues that the receipts she signed for funds

advanced  by Liimattas insurer do not give rise to an enforceable

contract.   Vest  argues  that there is no  evidence  beyond  the

receipts and the payments themselves that she ever agreed to  the

terms  contained  in the language on the receipts.   She  further

claims that Liimattas insurer never offered to advance her  money

.  . . on the condition that she offset such advances against her

eventual  recovery but rather simply advanced the  subject  funds

and  informed  her  that  such  offset  would  occur.   (Emphasis

deleted.)   Finally,  Vest  contends  that  because  all  of  the

language on the receipts was pre-printed, it is not an expression

of  [her]  agreement to the terms printed on  the  receipt,  [but

rather] a reflection of [Liimattas insurers] expectations.

          Vests arguments are unpersuasive.  In Beluga Mining Co.

v.  State,  Department of Natural Resources,  we  held  that  the

formation of a valid contract requires an offer encompassing  all

essential   terms,  unequivocal  acceptance   by   the   offeree,

consideration, and an intent to be bound. 41  Here, the  receipts

Vest  signed encompassed all of the essential terms of the offer,

and  Vests signature is evidence of an unequivocal acceptance and

an  intent  to be bound by those terms.  And, as the trial  court

accurately  noted, both parties received a legally  bargained-for

benefit and detriment:

          State  Farm was under no obligation  to  give
          Ms.  Vest money before her claim was settled.
          It  suffered  a legal detriment by  advancing
          her  money before the close of her case  that
          is,  it  lost the use of that money  and  any
          interest  that  may have been earned  on  it.
          State Farm also received a benefit  Ms. Vests
          promise  to credit the payments she  received
          against any recovery on her claim.

               Ms.  Vest, too, received a benefit.  She
          got  the  use of this money before her  claim
          was  settled.  She also suffered a  detriment
          in  that  she promised to reduce her recovery
          by  the  amount  of the money  that  she  was
          advanced.

          Finally,  Vest argues that her agreement with Liimattas

insurer is unenforceable under 3 Alaska Administrative Code (AAC)

26.060,  which  provides:  Any person transacting a  business  of

insurance  who  participates  in the  investigation,  adjustment,

negotiation, or settlement of a claim: . . . (4) may not  request

a  first-party claimant to agree to a compromise or enter into  a

release that extends beyond the subject matter that gives rise to

the  claim  payment . . . .  (Emphasis added.) Vest asserts  that

the  emphasized  disjunctive or in  3  AAC  26.060(4)  permits  a

reading  of  the  provision  as  forbidding  [an]  insurer   from

requesting  that a first-party claimant agree to a compromise  or

from  entering into any release that extends beyond  the  subject

matter  that  gives rise to the claim payment.    We  decline  to

          adopt this interpretation.  Chapter 26 of Title 3 of the Alaska

Administrative   Code  consistently  specifies   which   of   its

provisions   apply   to   first-party   complaints,   third-party

claimants,  or  both.42   Because  3  AAC  26.060(4)   does   not

specifically  address third-party claimants,  we  hold  that  the

regulation does not apply to Vest, who is a third-party claimant.

We therefore conclude that the superior court properly offset the

judgment   under  the  enforceable  contract  between  Vest   and

Liimattas insurer.43

     H.   The Prejudgment Interest Award Must Be Recalculated.
          
          Liimatta argued below that prejudgment interest  should

not  be  assessed on the funds advanced to Vest  for  the  period

after  Vest  received  the funds.  The trial  court  nevertheless

awarded  prejudgment interest on the entire amount of  the  jurys

past damages award ($79,387.26) from July 3, 1997  when Vest  was

injured   without  accounting for the $10,214 advanced  to  Vest.

Liimatta  contends  that part of the prejudgment  interest  award

conferred a windfall double recovery upon Vest.  We address  this

issue in anticipation that it might arise again on remand.

          Because money is worth less the later it is received[,]

.  .  .  prejudgment  interest  is [awarded]  to  compensate  [a]

plaintiff for the loss of the use of the money from the  date  of

injury until the date of judgment.44  Prejudgment interest may not

be  awarded  to the extent it would give the plaintiff  a  double

recovery.45  The party opposing a prejudgment interest award bears

the burden to show that a double recovery would result; otherwise

prejudgment interest is awarded as a matter of course.46

          The  trial  court awarded Vest prejudgment interest  on

the  entire amount of the jurys past damages award partly because

it  found  that it was not clear whether the advanced funds  were

intended  to  compensate  Vest for  past  damages  (for  which  a

plaintiff is entitled to prejudgment interest) or future  damages

(for  which  a  plaintiff is not usually entitled to  prejudgment

interest).47   If the advanced funds were intended to  compensate

          Vest for past damages, then part of the prejudgment interest

award  gave Vest a windfall double recovery, because Vest was  no

longer deprived of the use of the funds after she received  them.

To  the  extent  that  Liimatta establishes on  remand  that  the

advanced funds were intended to compensate Vest for past damages,

the  trial  court  should not award prejudgment interest  on  the

funds for the period after Vest received them.

          The  trial  court also noted that the parties agreement

provided  for  the  advanced  funds  to  be  deducted  from   any

subsequent  judgment, which by definition includes a  prejudgment

interest  award.48   The  trial court therefore  ruled  that  the

judgment  should  be  calculated and then the advances  deducted.

But  the judgment should not include a prejudgment interest award

to  the  extent it would give the plaintiff a double  recovery.49

The   parties   agreement  is  not  inconsistent  with   limiting

prejudgment  interest  to  the periods  when  Vest  was  actually

deprived of damages due her.

          Finally,  Vest  claims that because the advanced  funds

were intended to compensate her for undisputed damages which  she

did  not claim at trial, the prejudgment interest award does  not

give her a double recovery.  But as we noted in Part III.G, Vests

assertion that the advanced funds were intended to compensate her

for  undisputed  damages which she did  not  claim  at  trial  is

inconsistent  with  the  language of her written  agreement  with

Liimattas insurer.

IV.  CONCLUSION

          Because  it  was  an  abuse of  discretion  to  exclude

evidence  of  the plaintiffs pre-accident drug-seeking  behavior,

and  because  the  error  was harmful, we  REVERSE  the  judgment

against  Liimatta  and REMAND for a new trial.   On  remand,  the

trial  court should offset any judgment Vest obtains by  $10,214,

the  amount  advanced  by Liimattas insurer.   Moreover,  to  the

extent  that  Liimatta establishes that the advanced  funds  were

intended  to  compensate Vest for past damages, Vest  should  not

recover  prejudgment interest on the funds for the  period  after

Vest received them.

CARPENETI, Justice, with whom BRYNER, Justice, joins, dissenting.

          Faced  with a defendants pretrial demand that the court

admit   into  evidence  approximately  6,000  pages  of   medical

records,1  the superior court carefully reviewed the  claims  and

defenses  of  the  parties, admitted some  but  not  all  of  the

proffered evidence, and provided a means for the defendant to use

the other parts of the evidence at trial.  The defendant made  no

effort to use the evidence at trial as the court allowed, but now

complains that the courts limiting order was error.  Because  the

trial  courts  ruling was well within the courts discretion,  and

because  the  defendant neither sought the admission of  specific

records  nor  showed how he was prejudiced by their exclusion,  I

would affirm the decision of the superior court.

          Deborah  Vest,  who  claimed  she  was  injured  in   a

bicycle/truck  collision  and sued  for  damages,  moved  for  an

extensive protective order before trial.  The motion covered  ten

distinct injuries (or groups of injuries) going back over sixteen

years,   four   different  workers  compensation  claims,   three

marriages,  various mental disabilities, collateral sources,  her

relationship with her attorney, a prior DWI and loss of  license,

and  alleged  addiction to pain medication.   Two  parts  of  the

motion  are  relevant to this appeal: prior injuries suffered  by

Vest  and  her  use  or abuse of pain medication.   As  to  these

issues,  defendant Into Liimatta noted that several of the  parts

of  her body that Vest claimed were injured in this accident were

the  subject of previous injuries; he further argued  that  Vests

addiction was admitted and highly relevant.  Liimatta attached  a

fifty-three-page medical summary/chronology and at the hearing on

the  motion  for  protective order voiced his intention  to  have

admitted  into  evidence both the summary and  the  approximately

6,000 pages of medical records from which the summary was drawn.

          Superior  Court  Judge Larry C. Zervos  ruled  on  this

massive,  multi-part  motion  in  a  lengthy  oral  ruling  that,

interspersed  with  continued  colloquy  with  counsel,  required

          several pages of transcript.  Significant for our purposes are

the following aspects of the ruling:

               (a)  on the question of other injuries, the  judge

ruled  admissible evidence that showed that any body  parts  that

Vest claimed were injured in the subject accident were injured in

the past seven years;

               (b)  on the question of drug-seeking behavior, the

judge  allowed  all  such evidence that had  occurred  since  the

accident, as well as testimony from three different doctors  that

dealt  with  pre-accident incidents: Dr. Tottens testimony  about

his  concern  about  such behavior, and  the  testimony  of  Drs.

Paulson  and  Jacobson (or Dr. West) concerning  the  claim  that

Vest,  on  a  number of occasions in 1991, sought pain medication

first  for one tooth and then, after it was ultimately extracted,

for a second tooth, for the purpose of obtaining the medication;

               (c)  the  judge  allowed the use  of  the  medical

records  to impeach Vest and her witnesses (Clearly, use them  to

impeach, its fine.); and

               (d) the judge disallowed the summary on the ground

that it was one-sided.2

          That  the superior court specifically permitted use  of

any   of   the  proffered  evidence  for  impeachment  is  highly

significant.  Liimatta was thereby free to confront Vest with any

instances    pre-accident  or  post-accident    of   drug-seeking

behavior once Vest testified that the pain she suffered  and  for

which  she needed medication resulted from the accident for which

she  was  suing.3  She did so testify.  Yet Liimatta did not  use

the  medical  records  for the purpose Judge Zervos  specifically

allowed: impeachment of Vest or her witnesses.  Liimattas failure

made  it impossible for the superior court to make the probative-

vs.-prejudicial balancing that the rules require  and  that  this

court  attempts in Part III.B.1. of todays opinion.  This failure

is  particularly  pointed because Liimatta, as the  proponent  of

evidence,  is required to seek admission of the evidence  with  a

          specific offer of proof.

          As  the  proponent of the disputed evidence  at  trial,

Liimatta  was required to seek admission of the specific  records

that  he  wanted to use and to make a specific offer of proof  in

the  event  of  their  exclusion.4   Since  the  superior  courts

pretrial  order  broadly permitted Liimatta to use  the  disputed

medical records in many different ways, the order did not relieve

Liimatta  of  the obligation to comply with the  offer  of  proof

requirement.5

Liimatta failed to meet his obligation and, indeed, did not  even

attempt to use the disputed records for many of the purposes that

the  trial court deemed admissible.  He simply presented a boxful

of  undifferentiated medical records to the court at the pretrial

hearing,  said  that the box was full of relevant  evidence,  and

demanded a pretrial ruling that all the records would be admitted

because Vest did not dispute their authenticity.

          Liimattas failure to make specific offers of  proof  at

trial  makes it virtually impossible to meaningfully balance  the

probative  value  of  any of the disputed records  against  their

prejudicial  impact  or to realistically assess  Liimattas  claim

that exclusion of those records resulted in actual prejudice,  as

this  court  attempts to do in Part III.B.1.   Liimattas  failure

leads this court into the curious position of reversing the trial

courts  judgment  without ever identifying  a  specific  item  of

admissible  evidence   not  a single  medical  record   that  the

superior  courts  pretrial  order  actually  excluded  and  whose

exclusion caused actual prejudice to Liimatta.

          Referring  back  to the appellants briefs  provides  no

useful  guidance  on  this  point.  While  Liimatta  describes  a

handful  of  specific  records, all of them either  raise  facial

problems  of admissibility or fall well within the ambit  of  the

trial  courts ruling allowing Liimatta to admit specific  records

for  specific purposes as they became relevant during the  course

of the trial.  Liimatta makes no effort to explain his failure to

          use these records at trial, and his failure seems inexplicable,

except perhaps as a deliberate tactical choice.

          This  court  tries to deal with this vexing problem  by

essentially  assuming  the  existence  of  prejudice  from  Vests

failure to establish its absence.  Yet this approach reverses the

usual  rule  that  places the burden of proving  both  error  and

prejudice squarely on the appellant.  Reversing the usual  burden

seems  especially  unjustified  here,  because  the  trial  court

expressly invited Liimatta to make unlimited use of the  disputed

records  for  purposes of impeachment.  Because  Alaska  normally

allows  impeachment  evidence to be  considered  for  substantive

purposes,6  it  would seem all the more fitting  to  demand  that

Liimatta  explain  why he could not have overcome  any  potential

prejudice by accepting the courts invitation to use  and  thereby

gain admission of  the disputed records for impeachment.7

          Judge  Zervos  was faced with a request to  admit  into

evidence  6,000 pages of medical records (with no explanation  or

context) and a summary of them that was not a true summary but  a

one-sided  extraction of information negatively characterized  by

the defendant.  The trial judge adopted a reasonable intermediate

approach:  He  properly  disallowed the  summary  as  inaccurate,

allowed  in  a  substantial amount of the disputed evidence,  and

left  the  door  open  for  virtually unlimited  amounts  of  the

remainder to be used should Liimatta choose to use it to impeach.

Liimatta  chose not to use the evidence to impeach.  I would  not

now  uphold  his claim that the original ruling was flawed  given

his failure to use the evidence as the superior court allowed him

to do, his failure to identify any evidence that he was precluded

from  using, and his inability to establish how the exclusion  of

any particular evidence prejudiced his case.

_______________________________
     1     Bennett  v.  Weimar, 975 P.2d 691, 694  (Alaska  1999)
(citations omitted).

     2     Peter  Pan Seafoods, Inc. v. Stepanoff, 650 P.2d  375,
378-79 (Alaska 1982) (citations omitted).

     3     Chenega Corp. v. Exxon Corp., 991 P.2d 769,  791  n.88
(Alaska  1999) (quoting Bauman v. Day, 892 P.2d 817, 824  (Alaska
1995)).

     4    Johnson v. Olympic Liquidating Trust, 953 P.2d 494, 497
(Alaska  1998)  (citing Tookalook Sales & Serv. v.  McGahan,  846
P.2d 127, 129 (Alaska 1993)).

     5     Drug-seeking behavior is a pattern of seeking narcotic
pain  medication or tranquilizers with . . . complaints of severe
pain  without an organic basis . . . .  Mosbys Medical Dictionary
517 (5th ed. 1997).

     6     Poulin  v.  Zartman, 542 P.2d 251, 260  (Alaska  1975)
(citations omitted), disavowed on other grounds by State v. Alex,
646 P.2d 203, 208 n.4 (Alaska 1982).

     7     Ocasio  v.  Amtrak, 690 A.2d 682,  684-85  (N.J.  App.
1997).

     8    Id. at 685.

     9    Id. at 690.

     10    Id.

     11    Id. at 692.

     12     Hiller  v. Kawasaki Motors Corp., 671 P.2d  369,  373
(Alaska 1983).

     13    See United States v. Ong, 541 F.2d 331, 339-40 (2d Cir.
1976)  ([T]here  are  few subjects more potentially  inflammatory
than  narcotics and thus such evidence should usually be excluded
in a non-narcotics trial . . . .).

     14     Ward v. Loomis Bros., 532 N.W.2d 807, 811 (Iowa  App.
1995).

     15     See  2  Jack  B.  Weinstein  &  Margaret  A.  Berger,
Weinstein's Federal Evidence  403.04[2], at 403-46 (2d ed. 2000).

     16     CNA  Ins. Co. v. Scheffey, 828 S.W.2d 785, 790  (Tex.
App. 1992).

     17     Wasserman v. Bartholomew, 923 P.2d 806,  813  (Alaska
1996).

     18    Id. at 813 n.22.

     19    Id. at 814.

     20    See United States v. Santagata, 924 F.2d 391, 394 (1st
Cir. 1991) (noting that the repetition of the evidence was itself
distinctly probative) (citation omitted).

     21     Sweet  v.  Sisters of Providence, 895 P.2d  484,  496
(Alaska 1995) (emphasis added).

     22    Dissent at 4, 6.

     23     See Korean Air Lines Co. v. State, 779 P.2d 333,  339
(Alaska 1989).

     24    Adkins v. Lester, 530 P.2d 11, 18 (Alaska 1974).

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

     26     Tolan  v. ERA Helicopters, Inc., 699 P.2d 1265,  1268
(Alaska 1985).

     27     The  trial court ruled, however, that Liimatta  could
offer  evidence  of  Vests  receipt  of  free  medical  care  for
impeachment,  after requesting a hearing, if Vest testified  that
she could not afford physical therapy.

     28     See,  e.g., State v. Nielsen, 853 P.2d 256, 268  n.13
(Or.  1993)  (holding that exclusion of evidence on inappropriate
ground  is  harmless  error if it should have  been  excluded  on
different ground).

     29     See, e.g., Ridilla v. Kerns, 155 A.2d 517, 519  (D.C.
1959).  See also William H. Danne, Jr., Annotation, Admissibility
of  Evidence  that  Injured Plaintiff Received  Benefits  From  a
Collateral  Source,  On  Issue of Malingering  or  Motivation  to
Extend Period of Disability, 47 A.L.R.3d 234 (1973).

     30     Danne, supra note 29, at 238 (citing e.g., Eichel  v.
New York Cent. R.R. Co., 375 U.S. 253 (1963)).

     31    Eichel, 375 U.S. at 255.

     32     See  4 Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence  448, at 517 (2d ed. 1994).

     33    Alaska R. Evid. 803(6).

     34     See, e.g., Ransom v. Adams Dairy Co., 684 S.W.2d 915,
917-18  (Mo.  App.  1985)  (holding that evidence  of  plaintiffs
history  of  mental  breakdowns was  admissible  because  it  was
relevant  to plaintiffs earning capacity); Ocasio v. Amtrak,  690
A.2d  682, 691 (N.J. App. 1997) ([I]f a plaintiff seeks  recovery
for  lost future earnings, the defendant may present evidence  of
his  preexisting mental or emotional problems to  show  that  his
earning capacity was diminished before the accident.).

     35    See Emmel v. Coca-Cola Bottling Co., 904 F. Supp. 723,
742  (N.D.  Ill. 1995); Smith v. State, 486 A.2d 289,  293  (N.H.
1984)  (A  summary  may be admitted . . . if its  accuracy  as  a
summary of admissible evidence can be established.).  Cf.  Alaska
R.  Evid.  1006  cmt. (Should the accuracy [of a summary]  be  in
dispute by the parties, the trial judge may order the original to
be produced in court.).

     36     Determining whether a summary accurately reflects the
whole  requires review of the summarized records.  In Part  III.B
we  held  that  it  was error not to admit  any  of  the  medical
records.   Although  the  parties  descriptions  of  the  medical
records  combined with quotations from the medical  records  were
sufficient  to  demonstrate that complete  exclusion  was  error,
similar  evidence is not sufficient to demonstrate that a summary
is accurate.

     37    AS 09.17.070 provides:

          Collateral  benefits.  (a)  After  the   fact
          finder  has rendered an award to a  claimant,
          and  after  the court has awarded  costs  and
          attorney  fees,  a  defendant  may  introduce
          evidence  of  amounts  received  or   to   be
          received by the claimant as compensation  for
          the  same injury from collateral sources that
          do  not have a right of subrogation by law or
          contract.
          (b)   If  the  defendant elects to  introduce
          evidence  under  (a)  of  this  section,  the
          claimant may introduce evidence of
               (1)  the amount that the actual attorney
          fees  incurred by the claimant  in  obtaining
          the  award exceed the amount of attorney fees
          awarded to the claimant by the court; and
               (2)   the  amount that the claimant  has
          paid or contributed to secure the right to an
          insurance benefit introduced by the defendant
          as evidence.
          (c)    If  the  total  amount  of  collateral
          benefits introduced as evidence under (a)  of
          this  section exceeds the total  amount  that
          the claimant introduced as evidence under (b)
          of  this section, the court shall deduct from
          the total award the amount by which the value
          of the nonsubrogated sum awarded under (a) of
          this  section exceeds the amount of  payments
          under (b) of this section.
          
(Emphasis added.)

     38    AS 09.17.070(a).

     39    Id.

     40    Chenega Corp. v. Exxon Corp., 991 P.2d 769, 790 (Alaska
1999)  (citing Alyeska Pipeline Serv. Co. v. H.C. Price Co.,  694
P.2d 782, 787 (Alaska 1985)).

     41     See Beluga Mining Co. v. State, Dept of Natural Res.,
973 P.2d 570, 578 (Alaska 1999) (citing Davis v. Dykman, 938 P.2d
1002, 1006 (Alaska 1997)).

     42     Compare  3  AAC 26.060(1) (Any person  transacting  a
business of insurance who participates in the . . . settlement of
a  claim . . . shall fully disclose to a first-party claimant all
relevant benefits and other provisions of coverage under which  a
claim  may be covered.) (emphasis added) with 3 AAC 26.070(b)  (A
person  transacting a business of insurance who  participates  in
the  .  .  . settlement of a third-party claim may not  make  any
statement  that  indicates  that  the  rights  of  a  third-party
claimant  may  be  impaired if a form,  compromise,  release,  or
similar document is not completed within a given period of time .
.  .  .)  (emphasis  added)  and  3  AAC  26.070(c)  (Any  person
transacting a business of insurance who participates in the . . .
settlement   of  a  claim  may  not  continue  negotiations   for
settlement of the claim directly with any claimant who is neither
an  attorney  nor represented by an attorney . . .  .)  (emphasis
added).

     43     Vests cross-appeal brief argued that the trial  court
erred  in calculating attorneys fees under Alaska Civil Rule  82.
But  because  Vests reply brief concedes that  the  trial  courts
calculation  of Rule 82 attorneys fees was not erroneous,  we  do
not consider whether any error might have been made.

     44     Am.  Natl Watermattress Corp. v. Manville,  642  P.2d
1330,  1343  (Alaska 1982).  See also Bevins v.  Peoples  Bank  &
Trust  Co.,  671  P.2d  875, 881 (Alaska 1983)  (The  purpose  of
awarding  prejudgment  interest is not  to  penalize  the  losing
party,  but  rather  to  compensate the successful  claimant  for
losing  the  use  of the money between the date  he  or  she  was
entitled to it and the date of judgment.).  We note that under AS
09.30.070(b),  prejudgment interest now accrues  in  actions  for
personal  injury,  death,  or damage to  property  from  the  day
process  is  served  on the defendant or the  day  the  defendant
received  written  notification that an injury has  occurred  and
that  a  claim  may  be brought against the  defendant  for  that
injury, whichever is earlier.

     45    See, e.g., Tookalook Sales & Serv. v. McGahan, 846 P.2d
127, 129-30 n.4 (Alaska 1993).

     46     Cole  v.  Bartels, 4 P.3d 956, 958-59  (Alaska  2000)
(citing Hancock v. Northcutt, 808 P.2d 251, 261 (Alaska 1991)).

     47     See  McConkey v. Hart, 930 P.2d 402,  406-07  (Alaska
1996)   (holding   that  future  damage  awards   should   accrue
prejudgment interest only if they are discounted to a time before
trial).

     48    See Falconer v. Adams, 974 P.2d 406, 411-12 n.5 (Alaska
1999)  (citations  omitted) ([A]n award of  prejudgment  interest
[is] part of the judgment proper.).

     49    See Am. Natl Watermattress, 642 P.2d at 1343.

1     The  transcript  of  the pretrial  proceedings  showed  the
judges concern for what the defendant proposed:

          THE  COURT: [Counsel], are you planning  just
          to dump a ton of medical records on the jury?
          
          [COUNSEL]: I plan on admitting them.
          
          THE  COURT: Well, yeah, thats the same thing,
          and  thats not going to happen.  I mean,  you
          can  use   you can admit them and  have  them
          used  for  impeachment or have them  used  by
          others  in some specific reference, but  just
          to  hand them 6,000 pages of medical records,
          or even  if, hopefully, if my ruling has done
          anything,   its   cut   down   those    pages
          significantly.
          
2     I  agree  with  this  courts affirmance  of  Judge  Zervoss
decision to disallow use of the summary at trial.

     3     See  Loncar  v. Gray, 28 P.3d 928, 932  (Alaska  2001)
(holding  that party benefitted by protective order may open  the
door to evidence on a subject by putting that subject at issue in
the case); Worthy v. State, 999 P.2d 771, 775 (Alaska 2000).

4    See Alaska R. Evid. 103(a)(2).

     5     While  our case law does indicate that Rule  103(a)(2)
should   be   relaxed   when   an  unambiguous   pretrial   order
categorically excludes certain evidence and renders an  offer  of
proof  at  trial  patently  futile,  the  trial  courts  pretrial
comments here did not unambiguously and categorically exclude the
disputed records; to the contrary, they broadly allowed many uses
of  the  disputed records, were equivocal as to other  uses,  and
generally  displayed the courts openness to further consideration
if Liimattas counsel came up with further specific proposals.  In
such  situations, our case law suggests that Rule 103  should  be
strictly  enforced.   Compare, e.g., Landers v.  Municipality  of
Anchorage,  915 P.2d 614, 616-17 (Alaska 1996), and Agostinho  v.
Fairbanks  Clinic  Pship, 821 P.2d 714, 717 (Alaska  1991),  with
Bliss  v.  Bobich, 971 P.2d 141, 144-45 (Alaska 1998),  Sweet  v.
Sisters  of  Providence in Washington, 895 P.2d 484, 497  (Alaska
1995), and Poulin v. Zartman, 542 P.2d 251, 265-66 (Alaska  1975)
overruled  on other grounds by State v. Alex, 646 P.2d  203,  208
n.4 (Alaska 1982).

     6    See, e.g., Beavers v. State, 492 P.2d 88, 91-94 (Alaska
1971);  Wright  v.  State,  501 P.2d 1360,  1369  (Alaska  1972);
McMaster  v.  State, 512 P.2d 879, 884 (Alaska 1973);  Priest  v.
Lindig, 583 P.2d 173, 180 & n.26 (Alaska 1978); Brower v.  State,
728  P.2d 645, 647 (Alaska App. 1986); Larson v. State, 656  P.2d
571,  574-75  (Alaska App. 1982); and Thomae v. State,  632  P.2d
236, 240 (Alaska App. 1981).

     7     The  court  concludes that the trial  courts  pretrail
exclusion  of  some  of the medical records apparently  precluded
showing  the records to the jury while impeaching the  plaintiff.
(Op. at 10) But it did not: Judge Zervos specifically allowed the
impeachment  use  of the evidence (if plaintiff testified,  which
she  did), and evidence that is relevant to impeach is admissible
for substantive purposes.  Beavers, 492 P.2d at 91-94.