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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Willoya v. State (8/30/2002) sp-5622

Willoya v. State (8/30/2002) sp-5622

     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.


BRYAN WILLOYA,                          )
                              )    Supreme Court No. S-10280
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3PA-99-754 CI
STATE OF ALASKA, through its       )    O P I N I O N
DAVID L. POPKEN, MIKE GREEN,       )     [No.  5622 - August  30,
PUGH and SUPERVISING               )
             Appellees.                 )
_______________________________ )

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances:  Bryan Willoya, pro se,  Palmer.
          William F. Morse, Assistant Attorney General,
          Anchorage,  and  Bruce M.  Botelho,  Attorney
          General,  Juneau, for Appellee Department  of
          Corrections,   et  al.   Donna   M.   Meyers,
          Delaney, Wiles, Hayes, Gerety, Ellis & Young,
          Inc., Anchorage, for Appellee Robert S.  Fox,
          M.D.    Roger  F.  Holmes,  Biss  &   Holmes,
          Anchorage, for Appellee David L. Popken.

          Before:    Fabe,  Chief  Justice,  Carpeneti,
          Justice,  and Mannheimer, Hensley, and  Finn,
          Justices pro tem.*  [Matthews, Eastaugh,  and
          Bryner, Justices, not participating.]

          CARPENETI, Justice.


          Bryan   Willoya  was  incarcerated  at   Spring   Creek

Correctional Center when he was diagnosed with ulcerative colitis

          that required surgery.  Willoya brought a negligence claim

against  the State of Alaska and the personnel that treated  him.

After  the  superior court allowed Willoyas attorney to withdraw,

Willoya  filed  multiple motions requesting  the  appointment  of

counsel, the appointment of an expert, and the appointment  of  a

special  master, all of which were denied by the superior  court.

The  superior  court then granted the states motion  for  summary

judgment, which was supplemented with expert affidavits,  because

Willoya  failed  to  offer expert testimony that  the  state  was

negligent  in  its  treatment  of  his  condition.   Because  the

superior  court properly dismissed Willoyas claim in the  absence

of medical testimony to contradict the states experts and because

Willoya was not entitled to court-appointed counsel, experts,  or

a special master, we affirm the rulings of the superior court.


     A.   Facts

          A.   Bryan Willoya was an inmate at Spring Creek Correctional

Center (Spring Creek) during the time period that is relevant  to

this  appeal.   During his incarceration, Willoya  complained  of

various health problems.  On November 10, 1997 Willoya complained

of blood in his stools.  Willoya was seen by physicians assistant

David  L.  Popken  who  diagnosed Willoya  with  hemorrhoids  and

treated him with stool softener and fiber.

          Willoya again complained of rectal bleeding on November

16 and was seen by a nurse.  The next morning Willoya was seen by

Popken  who recommended a barium enema, for diagnostic  purposes,

but  still  diagnosed  Willoya  with  hemorrhoids.   Popken  also

recommended that Willoya be seen by Dr. Robert S. Fox.   Dr.  Fox

examined   Willoya  on  November  18  and  agreed  with   Popkens

recommendation  for  a barium enema.  Dr.  Fox  also  found  that

Willoyas bowels were inflamed.

          On  November  24  Willoya was admitted  to  the  prison

infirmary  for preparation for the barium enema.  Willoya  had  a

barium  enema on November 25 at Providence Seward Hospital.   The

results  of the barium enema required follow up, but  not  on  an

emergency  basis.   On December 1, 1997 Popken requested  that  a

colonoscopy be performed in the next couple of days to  rule  out

any abnormalities.  Popken also decided to keep Willoya at Spring

Creek  until  closer  to  the  date  of  the  colonoscopy  before

transferring  him  to  Anchorage.   Popken  started  Willoya   on

antibiotics and anti-inflammatories on December 2.

          Willoya  was  in the prison infirmary from  December  1

through December 7 where he was monitored closely.  On December 7

Willoyas   condition   worsened  when  he  started   experiencing

significant pain and abdominal cramping and his temperature  rose

to 101.  Dr. Fox examined Willoya that same day and diagnosed him

with severe refractory colitis, a serious, life-long disease that

causes  an  inflammation  of  the intestines.   Dr.  Fox  ordered

Willoya to be transferred to Providence Hospital in Anchorage  on

an  emergency basis that day to Dr. Steve Kilkenny for a surgical

consult   and   in-patient  treatment.   Upon  his   arrival   at

Providence, Willoya was seen by Dr. Richard Buchanan, an internal

medicine specialist.  A computer tomography radiographic exam (CT

scan) was performed on Willoya on December 8.  Dr. Kilkenny  then

ordered  surgical  intervention because the CT scan  showed  that

Willoya  suffered  from severe ulcerative colitis  involving  his

entire  colon and appendix.  A total colectomy1 with proctectomy2

and ileostomy3 was performed.

     B.   Proceedings

          On August 12, 1999 Willoya filed a suit in the superior

court against the Department of Corrections, Dr. Fox, and Popken,

among  others.4   In  his  complaint,  Willoya  made  claims   of

negligence  against  the  state and  its  employees  and  medical

negligence against Dr. Fox, and possibly negligent infliction  of

emotional distress against all defendants.  The case was assigned

to  Superior  Court  Judge Beverly W.  Cutler.   At  a  pre-trial

conference on January 3, 2000, trial was scheduled for August  6,

2001.  On the same day, Judge Cutler sent a letter to the parties

          asking if it was their intention to waive the appointment of an

expert  advisory  panel.  The parties waived appointment  of  the


          On  August  2,  2000 Willoyas counsel,  Ted  Stepovich,

moved   to   withdraw  from  the  case  because   attorney/client

communication  had broken down.  Willoya did not consent  to  the

withdrawal of Stepovich.  The superior court scheduled a  hearing

on  the  motion to withdraw on September 15, 2000.  On October  6

the  superior court granted Stepovichs motion to withdraw.  Judge

Cutler  ordered  Stepovich to send all materials associated  with

his case to Willoya within thirty days and recognized Willoya  as

a pro se litigant.

          On  December 27, 2000 all defendants joined in a motion

for  summary  judgment.   The  motion  was  supported  by  expert

affidavits  from  a  physicians assistant and a  board  certified

family  practitioner  stating that Popken and  Dr.  Fox  met  the

applicable standard of care.  Willoya filed an opposition to  the

states  motion  for summary judgment but failed  to  include  any

affidavits from medical experts.

          In  January  2001  Willoya filed several  motions.   He

moved  to  obtain expert testimony and reports at public expense.

He moved to enforce the superior courts order requiring Stepovich

to  send all of the materials relating to his case to him, and he

asked  the superior court to hold Stepovich in contempt  for  his

failure  to  provide  the materials within  the  time  previously

ordered.   Willoya moved for the appointment of a special  master

and,  in  the alternative, the appointment of counsel.   Finally,

Willoya  filed  a  motion to stay the states motion  for  summary

judgment and an opposition to the expert reports filed by  Popken

based  on  the  experts  credentials.   Popken  moved  to  strike

Willoyas opposition to the expert reports on February 15.

          On  April  16  the superior court ruled on all  pending

motions.   The  superior court denied without prejudice  Willoyas

motion  to enforce the order against Stepovich and hold Stepovich

in  contempt.  The court struck Willoyas opposition to the expert

reports  submitted  by  Popken and  denied  Willoyas  motion  for

dismissal of the states summary judgment for the reasons advanced

in  the  [states]  briefing.  It also denied Willoyas  motion  to

appoint an expert pursuant to Alaska Rule of Evidence 706 because

Willoya made no showing that he was able to pay for his share  of

the  appointed  experts fee.  It denied both Willoyas  motion  to

obtain  expert  testimony and reports at public expense  and  his

motion to have a master appointed or, in the alternative, to have

counsel  appointed.   Willoyas motion for a stay  on  the  states

motion for summary judgment was denied as Willoya had already had

what  was effectively an extension of over two months to respond.

Finally, the superior court granted the states motion for summary

judgment.  Final judgment of dismissal with prejudice was entered

on June 7.

          Willoya appeals.


          We review an appeal from summary judgment de novo.5  We

affirm [a] superior courts grant of summary judgment . . . if the

evidence  in  the  record fails to disclose a  genuine  issue  of

material fact and the moving party is entitled to judgment  as  a

matter of law.6   All reasonable factual inferences must be drawn

in favor of the party opposing summary judgment.7

          We  review  procedural decisions of the superior  court

for  an abuse of discretion.8  We will reverse a ruling for abuse

of  discretion  only when we are left with a  definite  and  firm

conviction,  after reviewing the entire record,  that  the  trial

court  erred.9  We review a ruling by the superior court allowing

an attorney to withdraw under the abuse of discretion standard.10

Discovery  rulings are also reviewed for abuse  of  discretion.11

The  same standard is used to review the superior courts decision

concerning appointment of a special master.12

          We  review the superior courts factual findings on  the

issue  of  contempt  for clear error.13  A  finding  of  fact  is

          clearly erroneous when we are left with a definite and firm

conviction  based on the totallity of the record before  us  that

the trial court has made a mistake.14

          Constitutional questions are questions of law to  which

we apply our independent judgment.15

          We  apply  our  independent judgment  to  questions  of

statutory  interpretation,  such  as  whether  the  trial   court

properly construed and fulfilled its statutory duty to appoint an

expert  advisory panel.16  We will adopt the rule of law that  is

most persuasive in light of precedent, reason, and policy.17


     I.   A.   The Superior Court Did Not Err in Allowing Stepovich To
          Withdraw and in Refusing To Sanction Stepovich for Failing To
          Provide the Case Materials.
          1.   The superior court did not err in allowing Stepovich to
          Willoya  argues  that  the  superior  court  erred   in

allowing Stepovich to withdraw from the case.  Willoya offers  no

factual or legal support for his argument that the superior court

abused  its discretion in letting Stepovich withdraw.  The  court

allowed Stepovich to withdraw only after holding a hearing on his

motion  to  withdraw,  in  which Willoya  participated,  and  the

withdrawal  took place on October 10, 2000, ten months  prior  to

the  scheduled  date  for  trial.  We  therefore  hold  that  the

superior court did not abuse its discretion in allowing Stepovich

to withdraw.

          2.   The superior court did not err in refusing to sanction


            Willoya   argues  that  Stepovich  made  unauthorized

disclosures of information concerning the settlement of  Willoyas

claims.   Willoya offers no proof of this allegation  other  than

his own assertion and he gives no specific information as to when

this  conversation  took  place or what the  particulars  of  the

conversation were.  There is no evidence that Willoya raised this

issue below.  Accordingly, Willoya has waived this claim.18

          Willoya  also argues that the superior court  erred  in

denying  his  motion  for  enforcement  of  the  order  requiring

Stepovich to send Willoya all materials associated with  Willoyas

case  within  thirty days.  The superior courts decision  denying

Willoyas  motion  to hold Stepovich in contempt was  not  clearly

erroneous.   Stepovich  filed a notice  of  compliance  with  the

superior court on February 15, stating that he had sent the  file

to  Willoya before Willoya even filed his motion for enforcement.

Willoya  did  not refute that statement.  Moreover,  Willoya  has

alleged  no harm as a result of not receiving the materials  from

Stepovich within the thirty days provided by the order.  We  will

not  disturb  a judicial determination without evidence  of  both

error and prejudice.19  The superior court did not err in denying

Willoyas motion.

     B.    The  Superior  Court Did Not Err in  Denying  Willoyas
Requests for        Appointment of a Discovery Master, Counsel, a
Medical Expert, and           an Expert Advisory Panel.

          1.   The superior court did not err in denying the appointment of
               a master.
          1.   Willoya contends that the superior court erred when it

denied  his  motion to appoint a master under Alaska  Civil  Rule

53(a).20   The state interprets Willoyas argument as  asking  for

the  appointment of a discovery master.  Willoyas motion  to  the

superior  court indicates that Willoya intended that  the  master

would help him deal with discovery requests and organize material

that he received from the other side.21

          In Peter v. Progressive Corp.,22 we stated:

          appointment  of  a  discovery  master  should
          generally be reserved for cases (1) where the
          issues  are unusually complex or specialized;
          (2)  where discovery is particularly document
          intensive;  (3)  where  resolving   discovery
          disputes  will be especially time  consuming;
          (4)   where   the  parties  are  particularly
          contentious or obstructionist; or (5) where a
          master  will  facilitate a  more  speedy  and
          economical determination of the case.[23]
          Willoya  fails to assert that any of the  five  factors

mentioned  above are present in this case.  While the  case  does

          involve claims of medical negligence, which is a specialized

area,  there  is  no indication that the trial court  was  unduly

burdened  by  these  specialized  issues.   There  is   also   no

indication  that  any of the other factors apply  to  this  case.

Therefore,  we  uphold  the superior courts  denial  of  Willoyas

request to appoint a master.

          2.    The  superior court did not err  in  denying  the
appointment of                counsel.

          Willoya  argues that the superior court erred  when  it

denied  his request to appoint counsel.  The state responds  that

Willoya  had  no  right to court-appointed  counsel.   The  state

contends  that  the mere fact that Willoya is indigent  does  not

implicate  the  same  right to counsel in a tort/personal  injury

case  as  it  does in a criminal case.  In fact, in his  original

motion, Willoya admits that he is aware that he has no real right

for  the  appointment of bonafide counsel by the court.  We  have

recently  reiterated that there is no right to appointed  counsel

in  tort  cases.24   The superior court did not  err  in  denying

Willoyas request to have counsel appointed for him.

          3.    The  superior court did not err  in  denying  the

appointment of an             expert under Evidence Rule 706.

          Willoya contends that the superior court erred when  it

denied  his motion to have an expert appointed pursuant to Alaska

Evidence  Rule 706(a).25  The state responds that the  rule  does

not warrant the appointment of an expert because this case is not

complex.   The  state  also points to Willoyas  argument  in  his

original  motion that an expert is needed in order to  coherently

present  the  plaintiffs claims and any rebuttal  testimonies  of

defendant[s] proposed experts.  The state argues that this is  an

inappropriate reason for the superior court to appoint an expert.

          The  language of Rule 706 supports the conclusion  that

the  rule was meant as a discretionary, procedural option  for  a

judge  when the issues involved in a case are unusually  complex.

The  language  of  the  rule   [t]he  court  may  appoint  expert

witnesses   makes  clear  that  appointment  by  the   court   is


          Rule  706  was not intended as a means for an  indigent

party to obtain expert testimony at public expense.  The superior

court  correctly observed that the court has no funds with  which

to support private litigation such as this litigation.26

          4.   The superior court did not err in denying the appointment of

               a medical expert advisory panel.

          1.   Willoya contends that the superior court erred in failing to

appoint a medical expert advisory panel.  Willoya states that  he

needed the panel in order to present his case as required  by  AS


          Alaska Statute 09.55.536 provides for a pretrial review

of  medical  malpractice claims by an expert advisory  panel  and

allows  for the admission into evidence of the panels  report  at

trial.28   Here, the superior court wrote to both parties  asking

if  the parties wanted an expert advisory panel appointed.  There

is  no  evidence in the record that Willoya requested  an  expert

advisory  panel  after  receiving  this  letter.   In  the  order

granting  summary judgment to the state the superior court  noted

that  Willoya  through his counsel rejected the courts  offer  to

appoint  an  expert advisory panel.  Because the  parties  waived

their  right  to  an  expert advisory panel,  we  hold  that  the

superior court did not err in failing to appoint one.

     C.    The  Superior  Court Did Not Err in  Granting  Summary


          1.   Willoya received proper notice of the requirements of

               submitting affidavits with his  opposition to the states motion

               for summary judgment.

          Willoya  states  that he did not receive understandable

notice  of  the  requirements  of  the  summary  judgment  rules.

Willoya argues that he did not receive notice of the necessity of

submitting affidavits if the facts were in dispute.  In Breck  v.

Ulmer,29 we required trial judges to inform a pro se litigant  of

the  proper  procedure  for the action he  or  she  is  obviously

          attempting to accomplish.30  Specifically, the pro se litigant

should [be] advised of the necessity of submitting affidavits  to

preclude summary judgment, and of the possibility of amending her


             Here,  we  can find no indication that the  superior

court  formally informed Willoya of the necessity  of  submitting

expert affidavits to avoid the grant of summary judgment in favor

of  the  state.  However, there is evidence that Willoya knew  or

became  aware of this requirement while there was still  time  to

submit affidavits.

          First,  in  its motion for summary judgment, the  state

noted  that  Willoya must present expert testimony  in  order  to

support  his  claims  for  medical negligence.   Second,  Willoya

acknowledged  the need for medical testimony in his own  filings.

Although  these acknowledgments were made after he submitted  his

motion  for dismissal of the states motion for summary  judgment,

the  acknowledgments  were made well before  the  superior  court

ruled  on  the  states  motion for summary judgment.   Also,  the

superior court noted in its denial of Willoyas January 29  motion

for  a stay on the states motion for summary judgment that todays

date  is  4-16-01 and plaintiff effectively has  had  a  stay  or

extension of far more than 20 days to accomplish the goal sought.

During this period of approximately two and one-half months  from

the first indication that Willoya understood the requirements for

summary  judgment  until the states motion was  granted,  Willoya

never  sought leave to amend his opposition or in any way  comply

with the requirements.  Therefore, we find that there was no need

for  the  superior  court to give Willoya formal  notice  of  the

requirements  of  opposing a motion for summary judgment  because

there  is  clear  evidence  in  the  record  that  he  knew   the


          2.   The state did not violate Evidence Rule 702(b) by submitting

               more than three experts.

          Willoya asserts that the superior court violated Alaska

          Rule of Evidence 702(b) by allowing the state to submit more than

three experts names on its witness list.32  Willoya misreads  the

rule.   It prohibits the testimony of more than three experts  as

to  the same issue.  He makes no showing that the state submitted

more  than three experts as to any issue.  Moreover, because this

case  never  went  to  trial, the experts listed  never  actually

testified.   There  was  no error with regard  to  Evidence  Rule


          3.   The superior court did not err in finding that Willoya did

               not establish a triable case of medical negligence to preclude

               summary judgment.

          Willoya  argues  that  he  raised  genuine  issues   of

material  fact and that the superior court erred in granting  the

states  motion for summary judgment.  With its motion for summary

judgment,  the  state submitted the affidavits  of  two  experts.

First,  the  opinion  of  physicians  assistant  Edward  Hall,  a

physicians  assistant licensed in Alaska with approximately  nine

years  of experience, was submitted.  Hall stated that physicians

assistant Popken met the applicable standard of care with regards

to  the  treatment of Willoyas ulcerative colitis.   Second,  the

state  submitted the affidavit of Dr. David A. Driggers, a board-

certified  family-practitioner licensed in four states, including

Alaska.  Dr. Driggers stated that both Popken and Dr. Fox treated

Willoya  in  a  manner  appropriate to  the  complaints  made  by

Willoya.  Also, Dr. Driggers stated that the care given  by  both

Popken and Dr. Fox met the applicable standards of care.  Willoya

failed   to  offer  expert  testimony  to  support  his   medical

negligence claim against the state.

          We  have  held that when a partys motion was sufficient

to  establish the absence of a genuine issue as to negligence and

the  other party presented no expert affidavits and did not show,

based  on  the  evidence that was presented,  that  a  reasonably

arguable case of medical negligence existed it is appropriate for

a  trial  court to grant a motion for summary judgment.34   Here,

          the state submitted expert affidavits that showed that the state

took proper care of Willoya.  Once the state met this burden, the

burden  shifted  to  Willoya to demonstrate how  he  would  prove

medical  negligence.   Since Willoya offered  no  expert  opinion

contrary  to the expert opinions offered by the state, there  was

no  arguable  issue of medical negligence.35  The superior  court

did not err in granting summary judgment in favor of the state.

          4.   Willoya does not have a claim of informed consent.

          Willoya  claims  that he did not give informed  consent

when  he  received a barium enema because he was not notified  of

the material risks of the procedure.  This claim was never raised

below.   Willoyas complaint only alleged three causes of  action:

the  state  was  negligent,  Dr. Fox and  Popken  gave  negligent

medical  care, and possibly a negligent infliction  of  emotional

distress  claim.   There  is  no indication  that  the  issue  of

informed consent was raised below or that the superior court made

any findings on the issue.  Willoya has waived this claim.36

     D.    The  State  Did  Not  Violate Willoyas  Constitutional


          1.   The state did not violate Willoyas due process rights by

               releasing  his medical records.

          1.   1.   Willoya claims that he was denied his right to due

process  in violation of both the state and federal constitutions

when  his medical records were released without a hearing.37   As

the state points out, once Willoya filed a civil suit putting his

medical  condition at issue, he waived any privilege  or  privacy

interest  he  had  in his medical records.38   Willoya  makes  no

arguments  that the records he is referring to are not  the  same

records  that  are  implicated by this case.  Therefore,  because

Willoya has put his medical condition at issue, he has waived any

claim  that  his rights were violated with the release  of  these


          2.   Willoya waived his Eighth Amendment claim by failing to

               raise it in the superior court.

          1.   Willoya claims that he was denied pain medication when he

requested  it  and  that  this  amounted  to  cruel  and  unusual

punishment in violation of the Eighth Amendment.40  Specifically,

Willoya  claims  that  he  was  denied  pain  medication  on  two

occasions:  December 5 and 7, 1997.  There is no indication  that

Willoya  ever  raised this claim before the superior  court  and,

therefore, no findings of fact were ever made regarding these two

incidents.41  Because this argument was not raised below,  it  is


          3.   Willoya does not have a claim against the state for

               violation of its own policies and procedures.

          Willoya  argues that the state violated the  Department

of  Corrections  policies and procedures  by  not  informing  his

family  that  he  had become seriously ill and was  hospitalized.

Willoya  also  claims that this violated his due process  rights.

Willoya failed to raise these claims below and, therefore, he has

waived them.43

     E.    Claims Raised by Willoya in His Reply Brief but Not in

His Opening         Brief Have Been Waived.

          Willoya  raises several claims in his reply brief  that

he  neither raised below nor raised in his opening brief.   These

claims include an alleged sexually improper remark by Popken, the

states  failure  to provide certain materials through  discovery,

Willoyas  right  to know about Popkens consultations  with  other

medical professionals, Popkens alleged breach of his confidential

relationship with Willoya, violation of Willoyas right to know of

unfavorable  test  results,  and  the  states  interference  with

Willoyas confidential communications to his doctor.

          On December 31, 2001 the state filed a motion with this

court  to  strike  the affidavits submitted with  Willoyas  reply

brief  and to disregard the arguments that Willoya did not  raise

in  his  opening brief.  We struck the affidavits submitted  with

the  reply brief and stated that we would not consider new points

raised  for  the first time in the reply brief, but reserved  our

          consideration of whether the challenged arguments were raised for

the  first time in the reply brief until our consideration of the

merits  of  this appeal.  We have now fully reviewed all  of  the

briefing.  Because these arguments were not raised in the opening

brief, we now hold these arguments are waived.44


          We  reject  Willoyas various challenges and AFFIRM  the
superior courts grant of summary judgment to the state.
     *     Sitting  by  assignment made pursuant to  article  IV,
section 16 of the Alaska Constitution.

1     A  colectomy  is  the [e]xcision of a  segment  or  all  of
the colon.  Stedmans Medical Dictionary 325 (25th ed. 1990).

     2     A proctectomy is the surgical resection of the rectum.
Id. at 1263.

     3     An  ileostomy is the establishment of  a  fistula  (an
abnormal passage from an abscess, cavity, or hollow organ to  the
skin)  through  which  the third portion of the  small  intestine
discharges directly to the outside of the body.  Id. at 763.

     4     All the appellees will be collectively referred to  as
the state.

5      Ganz  v.  Alaska  Airlines,  Inc.,  963  P.2d  1015,  1017
(Alaska 1998).

     6     Johnson  v. Olympic Liquidating Trust,  953 P.2d  494,
496 (Alaska 1998).

     7    Id.

     8     Dougan  v. Aurora Elec., Inc., ___ P.3d ___,  Op.  No.
5591  at 6 (Alaska, June 28, 2002) (citing Morgan v. State,  Dept
of Revenue, 813 P.2d 295, 297 n.4 (Alaska 1991)).

     9    Id.

     10    Devincenzi  v.  Wright, 882 P.2d  1263,  1265  (Alaska

     11    Christensen  v. NHC Corp., 956 P.2d 468,  473  (Alaska

     12    Peter v. Progressive Corp., 986 P.2d 865, 867  (Alaska

     13    Matanuska Elec. Assn, Inc. v. Rewire the Bd., 36  P.3d
685, 690 (Alaska 2001).

     14   Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

     15   Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).

     16    Taylor  v.  Johnston, 985 P.2d 460, 463 (Alaska  1999)
(citations omitted).

     17   Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     18    Brandon  v. Corr. Corp. of America, 28 P.3d  269,  280
(Alaska  2001) (holding argument waived when not raised in  court
below or given cursory treatment in partys brief).

19    Hayes  v.  Bering  Sea Reindeer Products,  983  P.2d  1280,
1283 (Alaska 1999).

     20   Alaska R. Civ. P. 53(a) states:

          The presiding judge of the superior court for
          each  judicial district with the approval  of
          the  chief  justice of the Supreme Court  may
          appoint one or more standing masters for such
          district,  and the court in which any  action
          is  pending  may  appoint  a  special  master
          therein.  As  used in these  rules  the  word
          master includes a referee, an auditor and  an
          examiner,  and  a  magistrate  or  a   deputy
          magistrate. The compensation, if any,  to  be
          allowed  to  a master shall be fixed  by  the
          court, and shall be charged upon such of  the
          parties  or  paid out of any fund or  subject
          matter  of the action which is in the custody
          and  control of the court, as the  court  may
          direct.  The  master  shall  not  retain  the
          masters  report as security for compensation;
          but   when  the  party  ordered  to  pay  the
          compensation  allowed by the court  does  not
          pay  it  after  notice and  within  the  time
          prescribed  by  the  court,  the  master   is
          entitled  to a writ of execution against  the
          delinquent party.
     21    While we analyze this request under standards relevant
to  the appointment of masters under Civil Rule 53, we note  that
Willoyas  announced purposes for seeking appointment of a  master
show  that  Willoya in effect sought the appointment of  a  legal
assistant to him.

     22   986 P.2d 865 (Alaska 1999).

     23   Id. at 870.
24    Midgett  v.  Cook Inlet Pretrial Facility,  ___  P.3d  ___,
Op. No. 5620 (Alaska, August 30, 2002).

     25   Alaska R. Evid. 706(a) states:

          The  court  may on its own motion or  on  the
          motion  of any party enter an order  to  show
          cause  why  expert witnesses  should  not  be
          appointed,  and  may request the  parties  to
          submit  nominations. The  court  may  appoint
          expert witnesses. An expert witness shall not
          be  appointed by the court unless the witness
          consents to act. A witness so appointed shall
          be  informed  of the witness  duties  by  the
          court  in  writing, a copy of which shall  be
          filed  with the clerk, or at a conference  in
          which  the parties shall have opportunity  to
          participate.  A  witness so  appointed  shall
          advise  the parties of the witness  findings,
          if  any; the witness deposition may be  taken
          by  any  party; and the witness may be called
          to  testify by the court or any party. If the
          court   determines  that  the  interests   of
          justice  so  require, the  party  calling  an
          expert   appointed  under   this   rule   may
          cross-examine the witness.
26    We  note  that,  by  ruling  on  Willoyas  motion  for  the
appointment of an expert at public expense, his motion for a stay
upon  the  states  motion for summary judgment,  and  the  states
motion  for  summary judgment all on the same day,  the  superior
court  may not have fully considered Willoyas disadvantage  as  a
pro se litigant.  We think the better practice, as exemplified by
the  trial  courts  procedure in Kaiser v. Sakata,  40  P.3d  800
(Alaska  2002), is to grant a pro se medical malpractice litigant
an  extension of time to respond to a summary judgment motion, to
explain  to the litigant what he needs to oppose the motion,  and
to  make  clear  that  the litigant could not  rely  on  his  own
testimony  in  opposing summary judgment  before  ruling  on  the
motion.  Id. at 802-03.  We find that the courts deciding of  all
of the pending motions on the same day in this case, however, was
not  prejudicial to Willoya because Willoya had made it clear  to
the  court that he was unable to provide anything further by  way
of opposition to the motion for summary judgment.

     27   AS 09.55.536(a) provides:

          In  an  action  for damages due  to  personal
          injury  or death based upon the provision  of
          professional  services  by  a   health   care
          provider,   including  a   person   providing
          services on behalf of a governmental  entity,
          when   the   parties  have  not   agreed   to
          arbitration of the claim under AS  09.55.535,
          the  court shall appoint within 20 days after
          filing of answer to a summons and complaint a
          three-person expert advisory panel unless the
          court decides that an expert advisory opinion
          is  not necessary for a decision in the case.
          When the action is filed, the court shall, by
          order,    determine   the   professions    or
          specialties to be represented on  the  expert
          advisory   panel,  giving  the  parties   the
          opportunity to object or make suggestions.
     28    Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343,  345
(Alaska 1988).

     29   745 P.2d 66 (Alaska 1987).

30   Id. at 75.

     31   Id.

32   Alaska R. Evid. 702(b) states:

          No   more   than  three  independent   expert
          witnesses may testify for each side as to the
          same issue in any given case. For purposes of
          this rule, an independent expert is a witness
          who  is  retained  or specially  employed  to
          provide expert testimony in the case or whose
          duties  as an employee of the party regularly
          involve  giving expert testimony. The  court,
          upon  the showing of good cause, may increase
          or decrease the number of independent experts
          to be called.
     33    Willoya did not claim that the states action in naming
more  than three expert witnesses resulted in an undue burden  or
expense under Alaska Rule of Civil Procedure 26(c).  Accordingly,
we  do  not address the interplay between that rule and  Evidence
Rule 702(b).

     34    Kendall  v.  State, Div. of Corr., 692 P.2d  953,  955
(Alaska 1984).

     35   Willoya complains that his own lay opinion evidence was
admissible  under  Alaska Rule of Evidence 701,  and  faults  the
superior  court  for excluding it.  Regardless whether,  had  the
case gone to trial, Willoya may have been able to provide his own
opinion  testimony under Rule 701, it was insufficient to  oppose
expert  testimony  on  a medical malpractice  claim  for  summary
judgment purposes.  Id.

     36    Brandon  v. Corr. Corp. of America, 28 P.3d  269,  280
(Alaska 2001)  (stating that [a] party may not raise an issue for
the  first time on appeal.) (citing Preblich v. Zorea,  996  P.2d
730, 736 n.17 (Alaska 2000)).

     37   U.S. Const. amend. XIV,  1 (Willoya mistakenly cites to
Art. 5); Alaska Const. art. I,  7.

     38   Langdon v. Champion, 745 P.2d 1371, 1373 (Alaska 1987);
see  also Trans-World Investments v. Drobny, 554 P.2d 1148,  1151
(Alaska  1976)  (stating we hold that the filing  of  a  personal
injury  action waives the physician-patient privilege as  to  all
information concerning the health and medical history relevant to
the  matters which the plaintiff has put in issue.).   Alaska  R.
Evid. 504 states in relevant part:

          (b)  General Rule of Privilege. A patient has
          a  privilege  to  refuse to disclose  and  to
          prevent  any  other  person  from  disclosing
          confidential  communications  made  for   the
          purpose  of  diagnosis or  treatment  of  the
          patients   physical,  mental   or   emotional
          conditions,   including   alcohol   or   drug
          addiction, between or among the patient,  the
          patients  physician  or  psychotherapist,  or
          persons   who   are  participating   in   the
          diagnosis or treatment under the direction of
          the  physician or psychotherapist,  including
          members of the patients family.
          . . . .
          (d)  Exceptions. There is no privilege  under
          this rule:
               (1)  Condition on Element  of  Claim  or
          Defense. As to communications relevant to the
          physical,  mental or emotional  condition  of
          the  patient in any proceeding in  which  the
          condition of the patient is an element of the
          claim or defense of the patient, of any party
          claiming through or under the patient, of any
          person raising the patients condition  as  an
          element  of  his own case, or of  any  person
          claiming  as  a  beneficiary of  the  patient
          through a contract to which the patient is or
          was a party; or after the patients death,  in
          any  proceeding in which any party  puts  the
          condition in issue.
     39    Willoya  also claims that the release of  his  medical
records violated his right to privacy, his right to a fair trial,
and  his  right  to be free from illegal searches  and  seizures.
Since  Willoya  had  no privacy interest in the  release  of  his
medical  records, as discussed above, there could be no violation
of  his right to privacy.  Willoyas right to be free from illegal
search  and  seizure is not implicated in this case as  it  is  a
civil  case  and not a criminal case.  See D.R.C. v.  State,  646
P.2d  252,  260  (Alaska  App. 1982)  (stating  that  the  fourth
amendment, properly viewed in its historical context, applies  to
two kinds of situations: first, investigations of those suspected
of crime by those performing the function of police officers; and
second,  area-wide exploratory investigations, with or without  a
suspect,  carried out by specialized law enforcement officers  in
order  to prevent crime (including violation of health and safety
regulations).).   It is unclear how the right  to  a  fair  trial
relates  to Willoyas claim since no specific examples are  given;
thus it is impossible to evaluate this claim.

40     Excessive  bail  shall  not  be  required,  nor  excessive
fines imposed, nor cruel and unusual punishments inflicted.  U.S.
Const. amend. VIII.

     41    Native  Alaskan Reclamation & Pest  Control,  Inc.  v.
United  Bank  Alaska, 685 P.2d 1211, 1215 (Alaska 1984)  (stating
that [i]t is the job of the trial court, not the appellate court,
to   judge  the  credibility  of  the  witnesses  and  to   weigh
conflicting evidence.).

     42    Brandon  v. Corr. Corp. of America, 28 P.3d  269,  280
(Alaska 2001) (stating that [a] party may not raise an issue  for
the  first time on appeal.) (citing Preblich v. Zorea,  996  P.2d
730, 736 n.17 (Alaska 2000)).

     43   Id.

     44    Alaska  R. App. P. 212(c)(3) (stating that  the  reply
brief  may  raise no contentions not previously raised in  either
the  appellants or appellees briefs.); see also Conam  Alaska  v.
Bell Lavalin, Inc., 842 P.2d 148, 158 (Alaska 1992) (stating this
court need not consider a theory raised for the first time  in  a
reply brief).