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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.
