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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Samaniego v. City of Kodiak (11/14/2003) sp-5751

Samaniego v. City of Kodiak (11/14/2003) sp-5751

     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,
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            THE SUPREME COURT OF THE STATE OF ALASKA
                                
JULIA SAMANIEGO,              )
                              )    Supreme Court No. S-10378
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3KO-95-00450 CI
                              )
CITY OF KODIAK, KODIAK        )    O P I N I O N
POLICE DEPARTMENT,       )
SERGEANT WILLIAM D. MARSH,    )    [No. 5751 - November 14, 2003]
and OFFICER MILTON BOHAC,     )
                              )
             Appellees.            )
________________________________)



          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District, Kodiak,
          Sharon L. Gleason, Judge.

          Appearances:  Jeffrey A. Friedman and Kenneth
          R. Friedman, Friedman, Rubin & White,
          Anchorage, for Appellant.  Frank S. Koziol,
          Law Office of Frank S. Koziol, Anchorage, for
          Appellees.

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

          FABE, Chief Justice.


I.   INTRODUCTION

          Julia Samaniego sued the City of Kodiak, Kodiak Police

Sergeant William D. Marsh, and Officer Milton Bohac, alleging

that Sergeant Marsh and Officer Bohac used excessive force in

arresting her.  At trial, one of Kodiak's psychiatric experts,

Dr. Stephen M. Raffle, was permitted to testify about his

diagnosis of Samaniego.  The superior court prohibited Samaniego

from questioning Sergeant Marsh about a possible bias stemming

from a settled employment dispute with the City of Kodiak.

Samaniego appeals from the judgment entered on the jury verdict

in favor of Kodiak, Sergeant Marsh, and Officer Bohac, claiming

that the trial court erred in its evidentiary rulings concerning

Dr. Raffle's testimony and Sergeant Marsh's settled employment

dispute.  We affirm the trial court's evidentiary rulings.

II.  FACTS AND PROCEEDINGS

          A.   Factual History

          This appeal arises out of an excessive force claim

brought by Julia Samaniego against the City of Kodiak, Kodiak

Police Sergeant William Marsh, and Officer Milton Bohac.  In

April 1994 Marsh responded as back-up to a traffic stop conducted

by Officer Bohac and two Immigration and Naturalization Service

(INS) agents.  Bohac and the INS agents were investigating

whether the individuals in the car had documentation proving that

they were in the United States legally.  While the INS agents and

Bohac questioned the individuals, Julia Samaniego drove up and

stopped at the scene because she knew the individuals under

investigation.  She was driving with four of her children and a

friend.  One of the INS officers approached Samaniego's car and

asked her for identification, which Samaniego did not have.

Sergeant Marsh followed the INS agent to Samaniego's car.  At

this point, Sergeant Marsh's and Samaniego's accounts of what

happened diverge.

          According to Samaniego, Sergeant Marsh told her "get

out of the car or I do it for you" and proceeded to pull her by

the arm out of the car.  According to Sergeant Marsh, he asked

Samaniego to step out of her car and offered his arm to her to

help her.  Samaniego exited the car and had a conversation with

Marsh.  While they were talking, Martha Samaniego, Samaniego's

daughter, started to walk away.  It is uncontested that Marsh

grabbed Martha.  Samaniego then pulled Martha behind her and

stood between Martha and Sergeant Marsh.  According to Samaniego,

Marsh tried to grab her hands, told her she was under arrest, and

then shocked her repeatedly with a stun gun.  Sergeant Marsh

tells a different story.  According to Marsh, Julia Samaniego

repeatedly hit him in the chest after he grabbed Martha.  He

alleges that Samaniego resisted arrest and he employed

restraining techniques on her so that he could handcuff her.

Also according to Sergeant Marsh, Samaniego grabbed, squeezed,

and pulled his testicles.  Samaniego maintains that she never

grabbed Sergeant Marsh during the incident.

     B.   Procedural History

          Samaniego sued Officer Bohac, Sergeant Marsh, the

Kodiak Police Department, and the City of Kodiak, alleging that

the officers used excessive force when they arrested her.1  In

their answer the defendants alleged, among other defenses, that

the force used to arrest Samaniego was justified.  Sergeant Marsh

counterclaimed that Samaniego committed an assault and battery on

him when she allegedly grabbed and pulled his testicles.  He also

counterclaimed for intentional infliction of emotional distress.

          The defendants moved for summary judgment on a

qualified immunity theory and Superior Court Judge Donald D.

Hopwood granted their motion.  This court, however, reversed

Judge Hopwood's ruling and remanded the case for trial.2  We

reasoned that the superior court did not portray the facts in the

light most favorable to Samaniego and that the court based its

analysis of the officers' conduct upon the officers' subjective,

rather than objective, beliefs as to the reasonableness of the

force used.3  On remand, the superior court consolidated this

case with Martha Samaniego v. City of Kodiak because the cases

involve common issues of law and fact.

          Before trial, Samaniego filed a motion in limine to

prevent and limit the use at trial of psychiatric and

psychological testing results that Kodiak wanted to introduce.

The newly assigned superior court judge, Judge Sharon L. Gleason,

denied the motion.  Samaniego also filed a request to question

Marsh at trial about possible emotional distress or bias stemming

from settlement of an employment dispute with the City of Kodiak.

The trial court denied this request.

          The case was tried in July and August 2001, and the

jury returned a verdict in favor of the City of Kodiak, Sergeant

Marsh, and Officer Bohac.  The court entered final judgment

against Samaniego for $82,475.99 in attorney's fees and costs.

Samaniego appeals the superior court's pretrial evidentiary

determinations.

III. STANDARD OF REVIEW

          We review a trial court's evidentiary decisions for

abuse of discretion.4  "We will find that a trial court abused

its discretion only when we are left with the definite and firm

conviction, after reviewing the whole record, that the trial

court erred in its ruling."5

IV.  DISCUSSION

          A.   The Trial Court Did Not Err in Declining To Apply
          the Daubert/Coon Reliability Factors to Dr. Raffle's
          Testimony.
          
          Before trial, Samaniego filed a motion in limine

seeking to limit the proposed psychological and psychiatric

testimony that defendants wished to introduce at trial to show

that Samaniego was malingering with regard to the effects that

she allegedly experienced from the April 1994 incident.

Samaniego argued that under the United States Supreme Court's

decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,6 our

decision in State v. Coon,7 and Alaska Rule of Evidence 702,8 the

City of Kodiak had not demonstrated the reliability of Dr.

Stephen M. Raffle's expert testimony and that it should therefore

be excluded.  Specifically, she asserted that Dr. Raffle should

not be able to present evidence of medical or psychiatric

diagnoses.

          Rejecting Samaniego's Daubert/Coon challenge to Dr.

Raffle's testimony, the trial court took judicial notice "that

psychological and psychiatric evaluations, including clinical

interviews . . . are long-recognized techniques that have been

empirically tested, subject[ed] to extensive peer review and

publication, and generally accepted in the psychological

community."  Consequently, the court permitted Dr. Raffle to

testify, subject to appropriate objections at trial, as to

whether Samaniego suffers from a personality disorder and to the

cause of her depression and her loss of self-esteem.

          On appeal, Samaniego argues that the trial court erred

in admitting Dr. Raffle's testimony because Kodiak had not

established its reliability.9  Samaniego does not contend that

Dr. Raffle's methodology or any portion of his testimony was

unreliable; she simply asserts that Kodiak should have subjected

Raffle's testimony to the four reliability factors outlined in

Daubert and mentioned by this court in Coon.  Samaniego concludes

that without proof of reliability, the trial court should have

excluded Dr. Raffle's testimony under Alaska Rule of Evidence

702.  Before Dr. Raffle testified, Samaniego made a standing

objection to Dr. Raffle's testimony on this basis.

          Dr. Raffle is a psychiatrist who specializes in

forensic psychiatry.  He graduated from the University of Chicago

medical school and has treated patients for thirty years.  He has

testified in civil and criminal proceedings.  Dr. Raffle

conducted two clinical interviews with Samaniego, one in 1997 and

the other in 2001.  The defense offered Dr. Raffle as an expert

in psychiatry without objection from Samaniego.  The court

accepted Dr. Raffle as an expert.

          In State v. Coon, we adopted the Daubert standard to

determine the admissibility of scientific evidence.10  Daubert

requires trial courts to determine "that scientific evidence is

both relevant and reliable."11  We noted that the factors

identified in Daubert provide useful guidance in assessing

whether proffered scientific evidence is relevant and reliable.12

These factors are:

          (1) whether the proffered scientific theory
          or technique can be (and has been)
          empirically tested . . . ; (2) whether the
          theory or technique has been subject to peer
          review and publication; (3) whether the known
          or potential error rate of the theory or
          technique is acceptable, and whether the
          existence and maintenance of standards
          controls the technique's operation; and (4)
          whether the theory or technique has attained
          general acceptance.[13]
          These factors are flexible, and as the United States

Supreme Court has noted, they "may or may not be pertinent in

assessing reliability, depending on the nature of the issue, the

expert's particular expertise, and the subject of his testimony."14

The Court concluded that "we can neither rule out, nor rule in,

for all cases and for all time the applicability of the factors

mentioned in Daubert."15  In the same vein, we noted in Coon that

trial courts may take judicial notice of the admissibility of

expert testimony when "an area of expertise is well-known and has

been fully considered by the courts."16

          Psychiatric testimony need not be subjected to analysis

under the Coon factors when the testimony is simply a diagnosis

stemming from a typical psychiatric examination.  A bare claim

that psychiatric evidence is unreliable does not subject forensic

psychiatry to a mini-trial in every case.  We have repeatedly

recognized the validity of independent psychological and

psychiatric exams and forensic psychological and psychiatric

exams in civil and criminal contexts.17  Additionally, Alaska's

statutes and court rules recognize the legitimacy of this type of

testimony.18

          It was not an abuse of discretion for the trial court

to take judicial notice of the admissibility of Dr. Raffle's

psychiatric testimony.  Because the Daubert/Coon factors are not

mandatory, and because we have endorsed the trial court's ability

to take judicial notice of the admissibility of expert testimony

in well-known areas of expertise, we affirm the trial court's

decision to admit Dr. Raffle's testimony concerning his diagnosis

of Samaniego.

B.             The Trial Court Did Not Err in Admitting Dr.
          Raffle's Testimony that Samaniego Was Malingering.
          
          Before trial, Samaniego filed a motion in limine

seeking to limit Dr. Raffle's testimony, arguing that he should

not be permitted to testify that Samaniego feigned, falsified, or

exaggerated her symptoms.  Samaniego contended that Raffle's

testimony to that effect amounted to an attack on her

credibility.  She argued that under Alaska law, expert witnesses

may not give opinions as to whether a witness is being honest.

Samaniego concluded that the court "should exclude any and all

evidence from expert witnesses that states or suggests that [her]

statements are false or exaggerations."  The superior court

partially denied Samaniego's motion.  Judge Gleason ruled that

Dr. Raffle could testify "as to whether he believes Mrs.

Samaniego has accurately described to him her mental health

status and her symptoms."  However, the trial judge proceeded to

prohibit Dr. Raffle from testifying about any party's credibility

regarding the events of April 1994.  The trial court explicitly

stated that the parameters of the ruling would have to be further

delineated with specific objections to specific questions at

trial:  "The plaintiffs can raise objections to specific

questions in this regard at trial as warranted."

          Samaniego renews her objections to Dr. Raffle's

testimony on appeal.  In response, the City of Kodiak argues that

Dr. Raffle's attack on Samaniego's credibility came as a

diagnosis of malingering.  "To malinger is `to pretend to be ill

or otherwise physically or mentally incapacitated so as to avoid

duty or work' or `to deliberately induce, protract, or exaggerate

actual illness or other incapacity so as to avoid duty or work.'

"19

          We conclude that Dr. Raffle testified within the bounds

of the trial court's order when he gave his opinion that

Samaniego was malingering.  Dr. Raffle's diagnosis of malingering

stemmed in part from his analysis of conversion disorders that

Samaniego allegedly experienced after her arrest in April 1994.

After the arrest, Samaniego complained of spells that involved

disorientation and fluctuating consciousness.  Dr. Raffle gave

the opinion that the first spell suffered by Samaniego was

authentic.  However, he stated his belief that Samaniego

fabricated all subsequent spells, noting that the symptoms were

different and that Samaniego appeared to have control over the

later spells, a trait which is inconsistent with a conversion

disorder.  Specifically, Dr. Raffle testified:

          At a later time, she has a series of symptoms
          which do not resemble the first [episode].
          They're marked with a rather sudden onset of
          impaired consciousness, staring, tearfulness,
          . . . all of which lasts for a minute or two,
          abruptly subsides and then her consciousness
          is clear.  There's no paralysis, there's no
          numbing as [there] was in the first incident,
          there's no confusion afterwards.  In the
          subsequent events, she is able to control
          their onset, as she says, by withdrawing from
          certain stimuli, certain external events.
          
Dr. Raffle gave the opinion that Samaniego intentionally faked

these later lapses in consciousness.  He testified that all

neurological and psychological explanations for this behavior had

been ruled out, leaving him to conclude that Samaniego was

malingering.

          Although this testimony was appropriately within the

scope of the trial court's ruling, other aspects of Dr. Raffle's

testimony were less so.  Dr. Raffle also  testified at some

length about inconsistencies in Samaniego's recounting of the

history of the arrest.  He gave the opinion, for example, that

"[h]er story about touching Officer Marsh changes over time.  In

the criminal court . . . she swore under oath that she hadn't

touched Officer Marsh.  In my re-exam, she says [she did push

him]."  Similarly, Dr. Raffle gave an opinion about Samaniego's

truthfulness concerning the bruises she received from Officer

Marsh's stun gun.  Dr. Raffle testified that although Samaniego

told him that the bruises remained for over six months, "[a]s a

physician, I know that bruises resolve in two weeks."  This

testimony was inadmissible under the trial court's ruling because

it reached the validity of Samaniego's story regarding the facts

of her arrest.  The superior court's ruling concerning Dr.

Raffle's testimony explicitly prohibited testimony about any

party's credibility with regard to these events.  Yet despite

Judge Gleason's invitation to "raise objections to specific

questions . . . at trial as warranted," Samaniego did not object

to this testimony as beyond the scope of the court's ruling at

trial, nor did Samaniego move to strike the testimony.20

          We conclude that Judge Gleason's ruling was

appropriate.  It drew the line in the proper place - Dr. Raffle

could testify as to whether he believed that Samaniego accurately

described her mental health status and symptoms to him but could

not testify about any party's credibility regarding the arrest.

The ruling left it up to Samaniego to object at trial to specific

questions that went beyond the limits of the ruling.  Samaniego

did not object, and therefore failed to preserve the issue for

appeal.21  We hold that the superior court did not err in its

ruling on the scope of Dr. Raffle's testimony.

C.             The Trial Court Did Not Err in Excluding Testimony
          of Sergeant Marsh's Alleged Bias in Favor of the City
          of Kodiak.
          
          In 1998 allegations of wrongful conduct culminated in

Officer Marsh's separation from the Kodiak Police Department.

Following administrative and superior court proceedings, Marsh

and the City of Kodiak reached a settlement agreement whereby

Marsh left the Kodiak Police Department.  Samaniego filed a

motion to introduce evidence of the allegations against Marsh and

of the settlement.  She put forth two arguments in her motion.

          Samaniego asserted that the facts surrounding these

events were relevant to Marsh's counterclaim against Samaniego

for intentional infliction of emotional distress.  Samaniego

argued that because the jury would have to decide whether she

caused Marsh distress, the issue of other competing stressors in

his life was relevant.  The trial court agreed, ruling:  "To the

extent that Mr. Marsh would be asserting that the emotional

distress from the incident in 1994 continued in 1998, then I will

allow inquiry into the 1998 event, but it's going to be limited."

          Samaniego also argued that cross-examining Marsh about

these events was "essential to probe any potential bias Marsh

might have to testify [favorably] to the City . . . ."  According

to Samaniego, Marsh might have felt compelled to testify

favorably for the City because the terms of the settlement were

favorable to him.  In response to this argument, the City pointed

to the fact that by the time the allegations were made against

Marsh, Marsh had already provided testimony about the incident

with Samaniego a number of times.  The City asserted that it was

"ludicrous to think there was anything to buy," because Marsh's

testimony had crystallized before his later issues with the

police department arose.  The City also argued that introduction

of these issues would prolong the trial and possibly confuse the

jury.

          The superior court analyzed the evidence under Alaska

Rule of Evidence 403 and ultimately prohibited any reference to

these issues for the purpose of showing bias.22  The court

reasoned that although the alleged wrongful conduct and the

issues surrounding the allegations might have some marginal

relevance to whether Marsh would be biased in Kodiak's favor, the

"very low probative value" of the testimony would be outweighed

by a "substantial degree of prejudice."

          On appeal, Samaniego argues that the trial court erred

in precluding questioning about the allegations against Marsh and

his settlement with the Kodiak Police Department to show his

potential bias in favor of Kodiak.  Specifically, she contends

that "Marsh obtained a significant benefit from . . . Kodiak at a

time when Kodiak needed his favorable testimony.  Jurors could

reasonably view this favorable treatment as a quid pro quo for

his favorable trial testimony."

          Samaniego's argument is not persuasive.  Marsh is a

named defendant in this case and brought a counterclaim of his

own against Samaniego.  His status as a party gave him ample

incentive to testify favorably for himself and for his co-

defendant, the City of Kodiak.  Marsh's involvement in an

employment dispute with the City of Kodiak, and the subsequent

settlement of that dispute years after Marsh first testified

about the incident with Samaniego, cannot be viewed as critical

to the issue of bias.  The superior court's determination whether

to admit evidence under Rule 403 is discretionary,23 and we hold

that the court did not abuse its discretion in this instance.

          Douglas v. Owens,24 a Third Circuit case that Samaniego

cites to support her argument, is inapposite.  Douglas, a state

prisoner, alleged that prison guards beat him in the aftermath of

a riot.25  An Islamic chaplain at the prison testified on

Douglas's behalf that he observed abrasions or bruises on Douglas

around the time of the riot.26  On cross-examination, the prison

guards sought to show the chaplain's potential bias by

establishing that the department of corrections had terminated

the chaplain for his involvement with rioting inmates and his

failure to cooperate with an investigation of the riots.  The

district court prevented this line of questioning, allowing the

jury to learn only that the department of corrections had

terminated the chaplain.27  The Third Circuit held that it was an

abuse of discretion to prevent the guards from questioning the

chaplain about the circumstances of his termination.28  To convey

effectively that the chaplain was potentially biased against the

guards and in favor of Douglas, the court reasoned that the

inquiry had to go beyond the fact that the chaplain was simply

"terminated" to inquire about the circumstances of that

termination.29

          Douglas is distinguishable from the instant case

because in Douglas the chaplain could have appeared to the jury

as a disinterested witness had the guards not been able to cross-

examine him about the circumstances of his termination.  In

contrast, in this case there was no danger that the jury would

view Marsh as disinterested because he was not simply a witness;

he was a named defendant and was also pursuing his own

counterclaim.  Therefore, his status as a party whose interests

were aligned with the City's was not in dispute.

          We hold that the superior court performed the

appropriate balancing test under Alaska Rule of Evidence 403 and

did not err in precluding questioning of Marsh regarding the

allegations against him or his employment dispute with the City

of Kodiak.  Accordingly, we affirm the trial court's ruling on

this issue.



V.   CONCLUSION

          Because the trial court did not err in declining to

apply the Daubert/Coon reliability factors to Dr. Raffle's

testimony, we AFFIRM the trial court's admission of the

testimony.  Also, because the trial court did not err in its

ruling concerning the admissibility of Dr. Raffle's testimony

about Samaniego's alleged malingering, we AFFIRM that ruling.

Finally, we AFFIRM the trial court's decision to exclude

testimony concerning allegations against Sergeant Marsh and the

settlement of his employment dispute with the City of Kodiak.

_______________________________
1In  a  related criminal proceeding, the police charged Samaniego
with  assault,  disorderly  conduct, and  forcibly  resisting  or
interfering with an arrest.  Samaniego v. City of Kodiak, 2  P.3d
78,  82  (Alaska  2000).  A jury convicted her  of  resisting  or
interfering  with  an arrest but acquitted  her  of  assault  and
disorderly conduct.  Id.
2Id. at 88.
3Id. at 85 & 88.
4Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994).
5Id. (internal quotations and alteration omitted).
6509 U.S. 579 (1993).
7974 P.2d 386 (Alaska 1999).
8The relevant text of Alaska Rule of Evidence 702 states:

                 (a)   If  scientific,  technical,   or
          specialized knowledge will assist  the  trier
          of  fact  to  understand the evidence  or  to
          determine   a  fact  in  issue,   a   witness
          qualified  as an expert by knowledge,  skill,
          expertise,   training,  or   education,   may
          testify thereto in the form of an opinion  or
          otherwise.
          
9Samaniego asserted in the heading of her first argument that the
trial  court  erred  in  not holding an  evidentiary  hearing  to
determine whether psychiatric evidence was admissible.  She  does
not  discuss  this  argument in the text of her  first  argument.
Because Daubert hearings are not mandatory, because Samaniego did
not  request a hearing, and because our case law does not mandate
an  evidentiary hearing in every instance, see State v. Coon, 974
P.2d 386 (Alaska 1996), it was not error for the trial court  not
to hold one.
10974 P.2d at 402.
11Id. at 390
12Id. at 395.
13Id.
14Kumho  Tire  Co.  v.  Carmichael,  526  U.S.  137,  150  (1999)
(quotations omitted).
15Id.
16Coon, 974 P.2d at 398.
17See,  e.g.,  Fardig  v. Fardig, 56 P.3d  9,  14  (Alaska  2002)
(recognizing that psychologist's testimony that children would be
best  served  by supervised contact with mother provided  support
for  superior court's decision to require supervised visitation);
J.S. v. State, 50 P.3d 388, 392 (Alaska 2002) (recognizing expert
therapists' testimony concerning whether children would be harmed
if   transitioned   back  into  father's  custody   in   parental
termination case); In re S.H., 987 P.2d 735, 740-41 (Alaska 1999)
(recognizing psychiatric testimony in affirming superior  court's
determination of conservatee's inability to manage  his  property
and affairs effectively under AS 13.26.165); Nelson v. State, 874
P.2d  298, 303 (Alaska App. 1994) (ruling under AS 12.47.070 that
trial  judge has authority to order criminal defendant to  submit
to independent psychiatric evaluation).
18See  AS 12.47.070 (requiring psychiatric or psychological  exam
and  report if criminal defendant files notice of intent to  rely
upon  insanity  defense); AS 12.47.100 (requiring psychiatric  or
psychological   examination   and  report   concerning   criminal
defendant's competency to understand proceedings or assist in own
defense); Alaska R. Civ. P. 35 (authorizing court to order  party
whose   mental   condition  is  in  controversy  to   submit   to
examination).
19Glamann  v.  Kirk, 29 P.3d 255, 258 n.4 (Alaska 2001)  (quoting
Webster's  Third  New  International Dictionary  of  the  English
Language Unabridged 1367 (1993)).
20See Alaska R. Evid. 103(a)(1) providing:

                (a)  Effect of Erroneous Ruling.  Error
          may  not  be  predicated upon a ruling  which
          admits   or   excludes  evidence   unless   a
          substantial  right of the party is  affected;
          and
          
                (1)  Objection.  In case the ruling  is
          one admitting evidence, a timely objection or
          motion  to strike appears of record,  stating
          the  specific  ground of  objection,  if  the
          specific  ground  was not apparent  from  the
          context.
          
21Id.;  Laidlaw Transit, Inc. v. Crouse ex rel. Crouse,  53  P.3d
1093, 1102 (Alaska 2002).
22Alaska Rule of Evidence 403 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.
          
23Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994).
2450 F.3d 1226 (3d Cir. 1995).
25Id. at 1228.
26Id. at 1229.
27Id.
28Id. at 1231.
29Id. at 1231-32.