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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kava v. American Honda Motor Co., Inc. (6/14/2002) sp-5582

Kava v. American Honda Motor Co., Inc. (6/14/2002) sp-5582

     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,


PATSY KAVA, as personal       )
representative of the Estate       )    Supreme Court No. S-9201
                              )    Superior Court No.
               Appellant,          )    2NO-93-230 CI
     v.                       )
d/b/a BONANZA,                )    [No. 5582 - June 14, 2002]
               Appellees.          )

          Appeal  from the Superior Court of the  State
          of  Alaska,  Second Judicial District,  Nome,
          Ben J. Esch, Judge.

          Appearances:    Richard  H.   Friedman,   and
          Jeffrey A. Friedman, Friedman, Rubin & White,
          and    Don    C.   Bauermeister,   Burke    &
          Bauermeister, PLLC, Anchorage, for Appellant.
          Sanford  M.  Gibbs, Brown,  Waller  &  Gibbs,
          P.C.,   and   John   B.  Thorsness,   Hughes,
          Thorsness, Powell, Huddleston & Bauman,  LLC,
          Anchorage, for Appellees.

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

          BRYNER, Justice.


          Patsy  Kava,  as  the  personal representative  of  the

estate  of  Abner Gologergen, appeals from a jury  verdict  in  a

wrongful death defective products action resulting from a  three-

wheel  ATV  accident.  The estate claims that the superior  court

erred  in  allowing Honda to introduce comparative risk evidence,

in  not  allowing the estate to inform the jury of  an  indemnity

agreement between two co-defendants, and in not granting a motion

for a new trial.  Because the superior court correctly ruled that

the  comparative risk evidence was admissible and did  not  abuse

its discretion in excluding the indemnity agreement, we affirm in

part.  But because the court incorrectly determined the effect of

its  sua sponte declaration of a mistrial on the negligence cause

of  action and applied the wrong standard in denying the estate's

motion for a new trial, we reverse in part.


          Abner Gologergen was driving a Honda three-wheel ATV to

the  site  of a beached whale near Savoonga when he lost control,

drove  over a rocky embankment, and suffered fatal head injuries.

Gologergen's  estate  filed  a  wrongful  death  action   against

American  Honda  Motor  Company  (Honda)  and  Sitnasuak   Native

Corporation, alleging a defective product design and negligence.1

          The  estate  claimed five dependents:  Patsy  Kava,  an

estranged  biological daughter, Aaron and Eleanor Gologergen,  an

adult  nephew and his wife, and Stephanie and Brianne Gologergen,

Aaron and Eleanor's minor daughters.

          All   parties   stipulated  that   Sitnasuak   had   no

independent liability for any negligence because it was simply  a

conduit for Honda's product.  Honda agreed to indemnify Sitnasuak

against  any  judgment, and Sitnasuak consented to representation

by Honda.

          Prior  to  trial,  the  estate  moved  to  exclude  any

"evidence  comparing,  or  designed  to  compare,  the  risks  of

engaging in the activity of riding ATVs or 3-wheel ATVs, and  the

          risk of engaging in other activities such as riding snowmachines,

trail  bikes or bicycles."  The superior court granted the motion

but made one exception:

          if  evidence of certain Consumer Product
          Safety Council reports and findings [is]
          presented by the plaintiff in  his  case
          in  chief.   In  that  event,  the  risk
          analysis prepared by Dr. Verhalen may be
          admitted  as  rebuttal, to  impeach  the
          methodology  and  statistical   analysis
          Also  prior  to  trial, the estate offered  a  proposed

instruction informing the jury of the indemnity agreement between

Honda  and Sitnasuak.  Honda objected to the instruction  at  the

start of the trial, and the superior court excluded it.

          In  opening  argument,  the estate's  attorney  recited

statistics  compiled  by the Consumer Product  Safety  Commission

regarding emergency room admissions and deaths attributed to ATVs

-  the statistical studies that the superior court referred to in

its  pretrial  order excluding comparative risk evidence.   Honda

objected  to  the  estate's  use of  those  statistics  as  being

prejudicial and out of context.  The superior court overruled the


          In its case in chief, again over Honda's objection, the

estate  presented evidence of the CPSC studies.  Then,  over  the

estate's  objection, the trial court allowed Honda  to  introduce

certain comparative risk evidence that otherwise would have  been

excluded  under  its  pretrial  order.   Later,  again  over  the

estate's objections, the court allowed Honda to introduce several

exhibits that illustrated the comparative risks between ATVs  and

other classes of vehicles, including snowmobiles, minibikes,  and


          At   the  conclusion  of  the  trial,  the  jury  began

deliberating  but deadlocked on the negligence cause  of  action.

The  jury's foreperson sent a note to the court stating, "We have

debated  and voted on question #4 since yesterday afternoon.   We

have  not  been able to move beyond an 8-3 vote on this question.

Please  advise."   Question  four stated  "Was  Honda  negligent?

(Answer  yes  or no)."  In attempting to formulate a response  to

the jury note, the trial court suggested that it should declare a

mistrial as to the negligence cause of action and direct the jury

to answer the remainder of the special verdict as to the products

liability  cause of action.  The estate did not  believe  that  a

mistrial  was necessary on this negligence claim but agreed  with

the  trial court's suggestion to instruct the jury to answer  the

remaining  special verdict questions.  Honda objected  and  moved

for a mistrial on all points.

          The  court denied Honda's motion for a mistrial on  the

entire  case  but  declared a mistrial on the  negligence  claim,

instructing the jury to skip questions four and five (which dealt

with  negligence) and to continue answering the verdict form with

question  six.   The jury reached a verdict as to  the  remaining

issues, which dealt with the estate's product liabilities theory.

It  found  that the three-wheel ATV was a defective  product  and

that  it was a legal cause of Gologergen's death.  The jury  also

found that Aaron, Eleanor, Stephanie, and Brianne Gologergen were

legal  dependents  of  Abner Gologergen.   But  it  awarded  zero

damages  to Aaron and Eleanor, and $25,000 each to Stephanie  and

Brianne  only  for  the  loss  of consortium.   Further,  despite

finding   that  Patsy  Kava  was  Abner  Gologergen's  biological

daughter, the jury awarded her zero damages.  It also found  that

Abner  Gologergen was negligent and that his negligence was fifty

percent of the cause of his death.  Finally, the jury found  that

Honda  had  not  engaged  in  outrageous  conduct;  this  finding

precluded an award of punitive damages.

          After the jury's verdict was read into the record,  the

estate's  counsel  asked that the jury be  polled,  but  did  not

challenge  the  verdict when the poll was completed.   The  court

then  dismissed the jury.  The estate later moved for a new trial

on  all  issues.  The superior court denied the estate's  motion.

The estate appeals.


     A.   Standard of Review

          We  review  a trial court's decision to admit  evidence

for an abuse of discretion.2  The question of whether to grant or

refuse  a  new trial "rests in the sound discretion of the  trial

court."3  In reviewing an order denying a new trial, we view  the

evidence  in  the light most favorable to the non-moving  party.4

Whether the trial court applied the correct legal standard  is  a

question of law that we review de novo.5

     B.   The Comparative Risk Evidence Was Admissible.

          The  estate  asserts that the trial  court  erroneously

allowed Honda to introduce evidence comparing the risks of riding

three-wheel  ATVs to the risks of operating other  vehicles  like

snowmachines   and  motorcycles  -  so-called  comparative   risk

evidence.6  The estate points out that the trial court had issued

a protective order excluding the comparative risk evidence unless

it was used to impeach certain Consumer Product Safety Commission

reports.   The estate argues that the evidence is irrelevant  and

that  its  admission amounted to reversible error.  We  disagree.

The  comparative  risk  evidence  the  estate  complains  of  was

relevant and admissible for two reasons.

          First,  the estate made the evidence relevant  when  it

introduced  evidence  of ATV-related emergency  room  admissions.

The  estate first mentioned the emergency room statistics in  its

opening  statement.  The estate's trial counsel stated in opening

that  "[b]y 1984, over 100,000 people had been taken to emergency

rooms  as  a result of injuries in 3-wheel accidents.   Over  250

people  had  been killed. . . . [Honda] knew it had  an  unstable

machine  on  its  hands.  It knew it from the  [Consumer  Product

Safety  Commission]  statistics."  Over  Honda's  objection,  the

estate  later  introduced the CPSC statistics  as  evidence  that

Honda had notice of injuries resulting from the use of its three-

wheel  ATVs.   The  estate also recounted the statistics  in  its

closing argument.

          Honda  asserts that it introduced the comparative  risk

evidence  to explain the CPSC statistics and to "prove  that  the

statistics  relied  upon by [the estate's  expert  witness]  were

inaccurate  and  irrelevant."  We agree that Honda's  comparative

risk  evidence  was  relevant to refute the estate's  statistical

evidence  and  to impeach its expert's testimony regarding  those

statistics.  As we recently stated, "a party may open the door to

evidence  on  a subject by putting that subject at issue  in  the

case."7  Here, the estate opened the door to a discussion of  the

statistical  methodology behind the CPSC reports.8            The

emergency  room statistics that the estate chose to present  were

relevant  to  establish notice only insofar as they  suggested  a

disproportionally  high  rate  of injury  and,  inferentially,  a

defective product.  By offering the injury statistics as relevant

evidence  of  notice, the estate necessarily asserted  that  they

tended to show that ATVs were defective - that Honda "knew it had

an  unstable machine on its hands."  How else, then, could  Honda

have  contextualized  the  rates  of  emergency  room  admissions

without  comparing  the ATV injury rates with  similar  products?

The statistics of ATV-related emergency room admissions, standing

alone, could not explain the reasons for the reported injuries or

establish the need for a corrective response by Honda.  Honda was

therefore  entitled  to offer the comparative  risk  evidence  in

response to the estate's use of the CPSC statistics.

          Second,   the  comparative  risk  evidence   was   also

admissible because it played an important role in connection with

the  issue of punitive damages.  The estate's theory of  punitive

damages  was  that  Honda  continued to market  three-wheel  ATVs

knowing  that the three-wheelers had a high rate of  injury.   It

based  its theory in large part on the fact that Honda had notice

of  the  CPSC  emergency room statistics as  early  as  1984  but

continued  to market three-wheel ATVs.  The estate asserted  that

the  continued  marketing in the face of  the  injury  statistics

showed  that  Honda's conduct was sufficiently  reprehensible  to

          support punitive damages.  Honda's comparative risk evidence

directly responded to the estate's theory of punitive damages.

          We  conclude that the superior court did not abuse  its

discretion in admitting the comparative risk evidence.

     C.   The Effect of the Mistrial.

          The  estate argues that it should have been  granted  a

new  trial  on its negligence cause of action because  the  trial

court  sua  sponte declared a mistrial on that claim and  allowed

the  jury  to  reach  a  verdict only on  the  estate's  products

liability  claim.   In  response, Honda notes  that  the  special

verdict  form  allowed the jury to award the same  categories  of

damages  for  both  causes of action.  According  to  Honda,  the

products  liability  and  negligence  theories  were  alternative

causes  of  action,  and  the  jury's  verdict  on  the  products

liability claim therefore resolved all damages issues, leaving no

reason for trial on the alternative theory of negligence.   Honda

additionally  argues that, in any event, the  estate  waived  its

right to ask for a retrial on negligence.

          As  a  threshold matter, we agree with the estate  that

the  trial  court acted sua sponte in declaring a hung  jury  and

mistrial   on   the   negligence  claim.   Upon   receiving   the

foreperson's note that the jury had debated for eight  hours  and

failed  to  reach  a verdict on the negligence issue,  the  trial

judge stated:  "I think the indication, they spent eight hours at

it and there has been no change . . . [j]ustifies a finding that,

as  to  the  issue of the negligence claim, there is a mistrial."

In response to concerns by Honda's trial counsel, the court later

expressly  confirmed  that it had issued the  mistrial  order  by

"motion  of the court."  Because the judge declared the  mistrial

without  a motion from either party, we believe that the  finding

of a mistrial can only be characterized as sua sponte.

          We  reject Honda's assertion that the estate waived its

right  to  a  retrial  on  the  negligence  cause  of  action  by

supporting  the trial court's decision to declare a  mistrial  on

that  action.  The estate did acknowledge that the jury  appeared

to  be  deadlocked on the negligence claim at that point; but  it

declined to move for a mistrial or to adopt the position that  it

would  relinquish  its right to seek a retrial  on  the  mistried

negligence  claim.   While it may be true that  the  trial  court

could have required the estate to elect between a mistrial on all

issues and a waiver of its negligence cause of action, the  court

did  not  require such an election.  Instead, it simply opted  to

declare  a  mistrial sua sponte.  Given these  circumstances,  we

hold that the estate's actions cannot properly be construed as  a

waiver of the right to a retrial.

          This  conclusion  leads us to a  slightly  more  vexing

question:  whether  the trial court's sua sponte  mistrial  order

entitles  the  estate to retry its negligence  claim.   As  Honda

correctly  observes, the special verdict form  for  the  products

liability  and  negligence  causes  of  action  listed  identical

categories of damages for both claims, and the jury's verdict  on

the  products liability cause of action assessed the damages that

the jury found appropriate in each category.  The question, then,

is   whether,   under   the   evidence  presented,   the   estate

realistically might have recovered any additional award  for  the

same  categories  of damages had the jury not deadlocked  on  the

negligence cause of action.

          The  estate's  dual claims for negligence and  products

liability  were  independent causes of action in the  sense  that

they  were  sufficiently distinct and separable to  stand  alone.

Yet  most  of  their shared categories of damages were  obviously

coextensive.  For example, the damages for "past loss of  support

and   services"  and  "future  loss  of  support,  services   and

inheritance"  would be identical regardless of the  theory  under

which they were awarded.  Because these damages have already been

decided  by the jury in the products liability verdict, it  would

be  an  injustice to subject Honda to the expenses and  risks  of

redetermining those damages in a retrial.9

          Similarly,   the   issue   of  punitive   damages   was

essentially  identical for both causes of action; on each  claim,

the  jury  was required to determine whether Honda's conduct  was

outrageous  and  would therefore support punitive  damages.   The

special verdict form contained a single question relating to both

claims on punitive damages: "Have plaintiffs proven by clear  and

convincing  evidence  that Honda engaged in  outrageous  conduct?

(Answer  yes or no)."10  The jury answered this question  in  the

negative.   Neither  the jury instructions nor  the  evidence  at

trial  differentiated between the kinds of conduct that would  be

outrageous under the estate's theories of negligence and products

liability.   Given these circumstances, the jury's  finding  that

Honda  had  not engaged in outrageous conduct must be  deemed  to

preclude  an  award  of  punitive damages under  both  causes  of


          As  to all issues of compensatory and punitive damages,

then,  because retrying the negligence theory would merely  allow

the  estate to relitigate issues that the first jury has  already

considered  and  fully decided, we conclude that  no  retrial  is

warranted.   But one point remains to be considered:  comparative

fault.   As to this point, we find it possible that a retrial  on

the  estate's negligence theory could lead to a different  result

based  on  a new jury's consideration of factual issues that  the

original  jury's  verdict on products liability  does  not  fully


          Because   a  finding  of  comparative  relative   fault

requires  the  jury to allocate relative degrees of  fault  among

joint  wrongdoers, there is good reason to believe  that  if  the

original  jurors  had found Honda liable on the basis  of  actual

negligence rather than strict products liability, they would have

assessed  greater comparative fault to Honda than they  did  when

they  allocated fifty percent fault to Gologergen in response  to

special  verdict question 15.  We thus conclude that a new  trial

will  be necessary on the issue of comparative fault unless Honda

          agrees upon remand to accept full liability for the damages

awarded by the original jury.

     D.   The Motion for a New Trial.

          The estate next argues that the trial court applied the

wrong  standard  when it denied the estate's  motion  for  a  new

trial.  The estate claims that instead of viewing the evidence in

the  light  most favorable to Honda, the trial judge should  have

determined the weight and credibility of the evidence for himself

and decided whether the jury's verdict was "against the weight of

the evidence."11  The estate is correct.

          The  standard  for  deciding a motion  for  a  directed

verdict or for a judgment notwithstanding the verdict requires  a

trial  court to view the evidence in the light most favorable  to

the non-moving party.12  By contrast, a trial court may set aside

a verdict and order a new trial in the interest of justice if the

verdict  is against the weight of the evidence.13  In deciding  a

motion  for  a  new trial on this basis, the court must  use  its

discretion and independently weigh the evidence.14  A  court  may

set  aside a verdict as being against the weight of the  evidence

even  when "there is substantial evidence to support it."15   The

decision is a matter for the trial court's discretion.

          In  the present case, the estate moved for a new trial,

not  for  a  directed  verdict or a judgment notwithstanding  the

verdict.  The trial court's order denying the estate's motion for

a  new trial shows that it applied the directed verdict standard.

The  trial  court  cited Mallonee v. Finch16 in  support  of  the

proposition  that, "[i]n deciding the motion [for a  new  trial],

this court must view the evidence in the light most favorable  to

the party against whom the motion is made and draw all reasonable

inferences  in  favor of the verdict."  But,  the  trial  court's

citation  to  Mallonee  refers to the  portion  of  that  opinion

dealing  with the appellate standard of review, not the  standard

to  be  applied by the trial court ruling on a motion for  a  new

trial in the interest of justice.

          As  we  explained in Mallonee, "[u]nlike a  motion  for

directed  verdict or judgment n.o.v., [the motion for new  trial]

involves  the trial judge's discretion."17  By moving for  a  new

trial,  and not just for a judgment notwithstanding the  verdict,

the estate sought a discretionary ruling from the court based  on

its personal view of the evidence.  Although the estate bolstered

its argument with the claim that the jury's verdict was flawed as

a matter of law, this argument did not deprive it of the right to

a  decision  based  on the trial court's independent  discretion.

The  trial court applied the wrong standard, then, in basing  its

decision on a view of the evidence in the light most favorable to

Honda.   The estate is entitled to a ruling on its motion  for  a

new trial using the correct standard.  On remand, the trial court

should  exercise  its  discretion  and  independently  weigh  the

evidence  in  determining if the jury's verdict was  against  the

weight of the evidence.

          In   reaching   this  conclusion,  we  reject   Honda's

assertion  that  the estate waived any right to a  new  trial  by

failing  to  challenge  the jury verdict as legally  inconsistent

before the jury was discharged.  We have held that "challenges to

the  consistency of a verdict are deemed waived unless made prior

to  the  discharge  of the jury."18  But that  rule  has  limited

application  here.  The estate's failure to raise  the  issue  of

inconsistency before the court discharged the jury  precluded  it

from later asserting that the inconsistency entitled it to a  new

trial  as  a matter of law.  But that failure did not  strip  the

estate  of its right to move for a new trial on the discretionary

ground  that the verdict was against the weight of the  evidence.

Nor  did  the  lack of objection bar the estate from arguing  the

apparent inconsistency of the verdicts as a factor that the trial

court  could  consider  in  exercising its  broad  discretion  to

determine  whether the totality of the circumstances warranted  a

new trial in the interest of justice.19

          Accordingly,  we  remand  for  reconsideration  of  the

          estate's motion for a new trial.  On remand, the trial court

should use its discretion and independently weigh the evidence to

determine  whether  the  verdict is against  the  weight  of  the

evidence  and whether to order a full or partial retrial  in  the

interest of justice.

     E.   It  Was  Not  an  Abuse of Discretion  to  Exclude  the
          Indemnity Agreement.
          The  estate  claims  that the trial  court  abused  its

discretion when it refused to instruct the jury on the  indemnity

agreement  between  Honda  and Sitnasuak.   That  agreement  made

Sitnasuak  a defendant in name only: Sitnasuak gave up its  right

to  control the defense of the case and its cross-claims  against

Honda  in  exchange for Honda's agreement to indemnify  Sitnasuak

for  any  "conduit"  liability.20  Prior  to  trial,  the  estate

submitted  a  proposed jury instruction that would have  informed

the  jury of the indemnity agreement.21  The trial court declined

to  include  the  instruction.  The  estate  again  proposed  the

instruction at the beginning of trial, and it was again rejected.

          Honda  argues  that  the proposed  instruction  on  the

indemnity  agreement was properly excluded because it would  have

been  analogous  to disclosing that a defendant  is  insured;  as

Honda  points  out, evidence of the availability of insurance  is


          We  disagree  with  Honda's analogy to  insurance.   An

insurance   policy  protects  the  insured  from   liability   by

contractually  shifting  the  financial,  but  not   the   legal,

responsibility to the insurer.  The insurer therefore accepts the

risk  of  liability  without  regard  to  its  own  conduct.   By

comparison, Honda's own conduct made it responsible for breaching

a  tort  duty that it owed directly to Gologergen; its  indemnity

agreement  simply  required  it  to  reimburse  Sitnasuak  -   an

otherwise  innocent  party  - for any  "conduit"  liability  that

Sitnasuak  might have incurred as a result of being  involved  in

Honda's  chain  of distribution.  Thus, unlike an insurer,  Honda

was the principal wrongdoer and agreed to indemnify Sitnasuak for

          incidental  liability that might arise from Sitnasuak's

relationship  with Honda.  In effect, then, the agreement  simply

recognized that Sitnasuak had no real interest in the litigation.22

          But  regardless of the indemnity agreement's nature and

purpose,  the  circumstances of this case compel us  to  conclude

that  the  trial court did not abuse its discretion in  excluding

the  estate's  proposed  jury instruction.   As  Honda  correctly

points  out,  the  estate itself chose to  join  Sitnasuak  as  a

defendant,  even  though  the estate  knew  that  under  products

liability  law  Honda  would ultimately be  responsible  for  any


          The  estate  nevertheless cites Frontier  Companies  of

Alaska,  Inc.  v.  Jack  White Co.,23 for  the  proposition  that

indemnity agreements can be used under Alaska Evidence  Rule  408

to  "show the true alignment of the parties."24  There,  we  held

that  it  was not an abuse of discretion for the trial  court  to

allow  evidence  of a settlement agreement between  co-defendants

where,   "[b]ecause   of  the  agreement,  [one   co-defendant's]

representatives  might be motivated to slant their  testimony  in

[the other's] favor and vice-versa."25

          But  Frontier is easily distinguishable from this case.

In   Frontier,  employees  of  both  co-defendants  appeared   as

witnesses  and  the settlement agreement between  them  obligated

both  parties to pay half of any judgment against either.26  That

situation  created a potential for bias on the part  of  the  co-

defendants  because  of  their  inter-related  interests  in  the

litigation.   Our  ruling simply recognized that  an  undisclosed

settlement  agreement  aligning the  interests  of  co-defendants

would have deceptively maintained the appearance of adversity  in

the litigation.

          Here,  by  contrast, the indemnity  agreement  did  not

align   Sitnasuak's  interests  with  Honda's;  it  simply   left

Sitnasuak  with no real interest in the litigation.  And  in  the

absence  of  evidence of the agreement, there  was  no  deceptive

          appearance of adversity.  Moreover, no employee or representative

of Sitnasuak appeared as a witness, thus eliminating any residual

possibility   of   actual   or  apparent   bias.    Given   these

circumstances,  the trial court did not abuse its  discretion  in

declining to give the jury instruction.


          The decision of the trial court is AFFIRMED in part and

REVERSED in part; we REMAND for proceedings consistent with  this


     1     Sitnasuak is the village corporation of Nome that sold
the Honda ATV to Gologergen through its business, "Bonanza."

     2     Hutchins  v.  Schwartz, 724 P.2d  1194,  1197  (Alaska

     3     Buoy  v.  ERA  Helicopters, Inc., 771  P.2d  439,  442
(Alaska 1989).

     4    Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999).

     5     Power Constructors, Inc. v. Taylor & Hintze, 960  P.2d
20, 39 (Alaska 1998).

     6    The disputed evidence was admitted during Honda's cross-
examination of one of the estate's expert witnesses, former  CPSC
commissioner  Stuart Statler, through testimony  by  three  Honda
witnesses  and through nine comparative-risk exhibits  introduced
when these witnesses testified.

     7    Loncar v. Gray, 28 P.3d 928, 932 (Alaska 2001).

     8    See Bittner by Bittner v. American Honda Motor Co., 533
N.W.2d  476,  487  (Wis.  1995) (holding  that  the  trial  court
properly admitted defendant's comparative risk evidence  for  the
purpose of impeaching the CPSC's statistical analysis because the
evidence  demonstrated that the CPSC's statistical basis,  relied
on by the plaintiff, could be defective).

     9     See  Sturm,  Ruger & Co. v. Day,  615  P.2d  621,  624
(Alaska  1980).  As mentioned in the statement of facts,  despite
its   finding   that  Aaron,  Eleanor,  Stephanie,  and   Brianne
Gologergen  all  were legal dependents of Abner  Gologergen,  the
jury  awarded  loss of consortium damages only to  Stephanie  and
Brianne,  awarding nothing to Aaron and Eleanor.  These  verdicts
are  arguably  inconsistent,  and their  potential  inconsistency
could  conceivably cast doubt on the reliability of the award  of
zero  damages to Aaron and Eleanor.  But in our view the estate's
failure to challenge the verdict as inconsistent before the trial
court  discharged the jury precludes the estate from  relying  on
this inconsistency as a legal basis requiring a retrial on either
its negligence or product liability claims.

     10    The punitive damages jury instruction stated:

               The  plaintiff  has requested  that  you
          punish the defendant to deter them and others
          from  repeating similar acts.  You may  award
          the plaintiff such an amount of money only if
          you decide that the defendant's conduct which
          forms   the   basis  of  your   verdict   was
          outrageous.   The  defendant's  conduct   was
          outrageous   if   it  was   the   result   of
          maliciousness or hostile feelings toward  the
          plaintiff,  or  was undertaken with  reckless
          indifference  to  the  interests,  rights  or
          safety of others.
     11    We reject the estate's assertion that this court should
declare  as  a  matter  of  law that the  jury's  verdict  was  a

     12     See  Alaska  R. Civ. P. 50(a) and (b); Alaska  Marine
Pilots v. Hendsch, 950 P.2d 98, 108 (Alaska 1997).

     13    See Alaska R. Civ. P. 59(a); see also Sloan v. Atlantic
Richfield Co., 541 P.2d 717, 723 (Alaska 1975).

     14    See Sloan, 541 P.2d at 723 n.11.

     15     11  Charles  Alan Wright et al., Federal  Practice  &
Procedure  2806 at 65 (2d ed. 1995).

     16    413 P.2d 159, 160 (Alaska 1966).

     17    Id. at 162.

     18     Grow  v. Ruggles, 860 P.2d 1225, 1226 (Alaska  1993);
accord Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994).

     19    See Alaska R. Civ. P. 59(a).  Rule 59(a) provides that:
"A  new trial may be granted to all or any of the parties and  on
all or part of the issues in an action in which there has been  a
trial  by  jury  . . . if required in the interest  of  justice."
See,  e.g.,  Buoy  v. ERA Helicopters, Inc., 771  P.2d  439,  442
(Alaska 1989).

     20    The indemnity agreement stated in relevant part:

               2.    .  .  . American Honda . .  .  and
          defendant  Sitnasuak  hereby  stipulate   and
          agree  that  they hereby waive and  will  not
          seek  apportionment of fault to  co-defendant
          Sitnasuak,  pursuant to A.S.  09.17.080,  for
          any  acts  of  independent: [sic] negligence,
          gross negligence and/or recklessness . . . .
               . . . .

               5.   The Honda defendants have agreed to
          and will continue to defend Sitnasuak against
          those claims asserted by plaintiff which  may
          subject   Sitnasuak   to  "conduit"   product
               6.   The Honda defendants will indemnify
          Sitnasuak against any judgment which  may  be
          entered  against Sitnasuak based on "conduit"
          product liability.
     21    The estate's proposed jury instruction provided:

               Counsel  for  Plaintiff  and  Defendants
          have   entered   into  a  stipulation   which
          establishes that Defendant Sitnasuak  has  no
          liability   for   any  acts  of   independent
          negligence   by   Sitnasuak.     The    Honda
          Defendants have agreed to and will  indemnify
          Sitnasuak  as the seller of the 3-wheeler  in
          question against any judgment entered in this
               This  means  that  the Honda  defendants
          have agreed to be financially responsible for
          any  judgment  rendered against Sitnasuak  in
          this action.
     22     Sitnasuak's financial obligation did not change after
the  settlement  and indemnity agreement with Honda:  as  a  mere
conduit, Sitnasuak was always entitled to full contribution  from
Honda  on any damage award against it.  See Colt Indus. Operating
Corp., Quincy Compressor Div. v. Frank W. Murphy Mfr., Inc.,  822
P.2d 925, 936 (Alaska 1991).

     23    818 P.2d 645 (Alaska 1991).

     24    Alaska Rule of Evidence 408 states in relevant part:

               Evidence  of (1) furnishing or  offering
          or  promising to furnish or (2) accepting  or
          offering  or promising to accept, a  valuable
          consideration  in compromising or  attempting
          to  compromise a claim which was disputed  as
          to   either  validity  or  amount,   is   not
          admissible   to   prove  liability   for   or
          invalidity of the claim or its amount. . .  .
          This  rule  also  does not require  exclusion
          when  the  evidence  is offered  for  another
          purpose, such as proving bias or prejudice of
          a  witness, negativing a contention of  undue
          delay,  or  proving an effort to  obstruct  a
          criminal investigation or prosecution . . . .
     25    Frontier Cos. of Alaska, 818 P.2d at 652.

     26    Id. at 648, 651-52.