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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Teva Marron v. Lyle Stromstad (11/10/2005) sp-5955

Teva Marron v. Lyle Stromstad (11/10/2005) sp-5955

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


TEVA MARRON, )
) Supreme Court No. S- 10888
Appellant, )
) Superior Court No.
v. ) 3AN-00-10929 CI
)
LYLE STROMSTAD, ) O P I N I O N
)
Appellee. ) [No. 5955 - November 10, 2005]
_______________________________ )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District,  Anchorage,  William   F.
          Morse, Judge.

          Appearances:   Keenan Powell, Anchorage,  for
          Appellant.    Dana  S.  Burke,  Wilkerson   &
          Associates, Anchorage, for Appellee.

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

          CARPENETI, Justice.
          BRYNER, Chief Justice, concurring.

I.   INTRODUCTION
          Teva  Marron  and Lyle Stromstad were  involved  in  an
automobile accident, for which Stromstad admitted fault.   Marron
sued   for   damages,  particularly  compensation   for   medical
treatments,  that she claims arose from the accident.   The  only
issue at trial was causation, and the trial consisted largely  of
expert  testimony.  The jury found for Stromstad  and  the  court
awarded him costs and fees.  On appeal Marron claims the superior
court  made  a variety of discovery, evidentiary, and  procedural
errors.   We  affirm the superior courts decisions on all  issues
except  its  award of attorneys fees to Stromstad,  on  which  we
remand.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Marron  was  a passenger in a car that Stromstad  rear-
ended  with  his own vehicle at a traffic light in October  1998.
By  her own admission, Marron was a chronic pain patient prior to
this  accident, and had herniated a disc in a previous automobile
accident  in  1991.  She suffered additional pain  following  yet
another automobile accident in 1994.  An MRI performed on  Marron
in  March 1998 showed her thoracic region to be, in her words,  a
train wreck.  However, with the help of chiropractic manipulation
under  anesthesia,  Marron described feeling  better  before  the
accident  with Stromstad.  Although that accident occurred  at  a
very  low  speed,1 Marron reported a severe headache  and  facial
numbness  at the scene of the accident.  These symptoms  worsened
in  the days following, to include vomiting, spotting in front of
her eyes, and pain from the waist up.
          Marron, distrusting Alaskan doctors, flew to California
to  see  Dr. John White, an orthopedic surgeon recommended  by  a
friend.   Dr. White performed an examination on Marron,  designed
to  test  back  pain and response to certain stimuli.   Based  at
least  in  part  on  the results of that examination,  Dr.  White
refused  to  operate on Marron.  Marron then  visited  Dr.  Sunny
Uppal, another California doctor.  Based upon the results  of  an
MRI  performed  in  Spring 1998, Dr. Uppal  decided  that  Marron
likely  had  a  herniated disc.  Dr. Uppal decided to  perform  a
discogram   on   Marron,   a  diagnostic   procedure   admittedly
controversial  and  incredibly painful.  The discogram  allegedly
proved  that  surgery  was an appropriate treatment  for  Marrons
pain.   Marron agreed to undergo surgery.  She asserts  that  the
surgery  was successful, in that it left her feeling  roughly  as
well as she did before the accident with Stromstad.
     B.   Proceedings
          Marron   sued  Stromstad  for  negligence   and   gross
negligence,  claiming that the accident exacerbated her  previous
back  injuries, causing her C 4-5 disc to become herniated.   She
claimed  damages for lost earnings, and past and future pain  and
suffering,   loss  of  enjoyment  of  life,  and  medical   care.
Stromstad  admitted he was at fault for the accident, but  argued
that  the  accident  was  not the cause of  Marrons  injuries  or
surgery.
          Marron  filed several motions in limine to: (1)  compel
Dr.  Richard  Rubenstein and James Stirling,  two  of  Stromstads
expert  witnesses, to produce all 1099 income tax forms  for  all
insurance  companies  . . . or other entities  from  whom  [they]
obtained monies or fees [for] performing forensic expert services
for  the  past five (5) years, in order to show the bias of  each
witness;  (2)  strike  Dr.  Whites expert  deposition  testimony,
because Stromstad failed to timely produce an expert report;  (3)
exclude Dr. Rubensteins testimony, because he was not a qualified
expert,  because his opinions were speculative, and  because  his
opinions  did not satisfy the requirements of Daubert v.  Merrell
          Dow Pharmaceuticals2 and as adopted by State v. Coon;3 (4)
exclude  the testimony of Stirling, offered as an expert accident
reconstructionist, because his credentials were insufficient, his
investigation  was  too  limited, and  his  opinions  failed  the
Daubert  test;  and  (5)  exclude  various  pieces  of  evidence,
including  post-accident photographs of  the  vehicles  involved.
Superior  Court  Judge William F. Morse denied all  five  of  the
motions.  Marron appeals these decisions.
          A  four-day  jury  trial was held  in  September  2002.
Before  and during the trial, Marron opposed the introduction  of
post-accident photographs of Marrons car and an insurance company
appraisal  of  the  accident damage.   Marron  argued  that  this
evidence portrayed the accident as a mere fender-bender, and  was
thus irrelevant and prejudicial.  The superior court admitted the
evidence.   Judge  Morse  denied  Marrons  request  to  introduce
evidence of Stromstads insurance coverage to rebut a statement by
defense counsel that Stromstad would be personally liable for any
judgment.   Additionally, Marron sought to introduce  several  of
Dr.  Rubensteins  medical  examination  reports.   According   to
Marron,   this  evidence  would  show  Rubensteins  bias  against
plaintiffs and towards the insurance defense industry.  The court
refused to allow Marron to introduce the reports themselves  into
evidence, though it did allow Marron to impeach Dr. Rubenstein on
cross-examination  with  some of the  contents  of  the  reports.
Marron appeals all of these decisions.
          Following  trial, the jury unanimously  concluded  that
Stromstads  actions were not a legal cause of injury  to  Marron.
Marron  moved for a new trial on the grounds that: (1)  Stromstad
untruthfully implied that Stromstad was not insured and would  be
personally  responsible for any judgment; (2) the superior  court
failed  to  exclude  Dr.  Rubensteins testimony  as  to  lack  of
causation;  and (3) Stromstads attorney violated  a  court  order
precluding Dr. Rubenstein from testifying as to how much force is
required  to herniate a disc when he stated in closing  that  Dr.
Rubenstein  testified that it would take more  than  1-3  mph  to
herniate  a disc.  Marron appeals the superior courts  denial  of
this motion.
          Stromstad moved for attorneys fees following trial, and
Marron  opposed  the  motion.  Stromstad had  made  an  offer  of
judgment  pursuant to Civil Rule 684 less than sixty  days  after
both  parties had made their respective initial disclosures under
Civil  Rule  26, which Marron rejected.  Based on the  timing  of
Stromstads offer, and the fact that it exceeded Marrons  eventual
jury  verdict  (of $0), the superior court held that  Civil  Rule
68(b)  entitled Stromstad to receive seventy-five percent of  his
post-offer  attorneys fees from Marron.  The court  awarded  fees
incurred  in opposing Marrons motion for a new trial.   Stromstad
did  not  itemize  the total amount of fees he  claimed  to  have
incurred.   Marron  protested the failure to include  a  detailed
listing  of  services provided, claiming that it  prohibited  her
from evaluating the reasonableness of the fees sought.  The court
stated  that,  without itemization, it could not discern  whether
the  fees  were either actually or reasonably incurred, and  held
the requested amount to be much higher than one would expect in a
          minor accident.  The court therefore decided to reduce the base
amount  of  the  fees by one-third, before awarding  seventy-five
percent of that reduced amount to Stromstad.5  Marron appeals the
fee award.
III. STANDARD OF REVIEW
          We  generally  review a trial courts discovery  rulings
for  abuse  of  discretion.  We will find an abuse of  discretion
only  when  left  with  a  definite  and  firm  conviction  after
reviewing  the  whole  record  that  the  discovery  ruling   was
erroneous.6   However, we review de novo whether  a  trial  court
weighed the appropriate factors in issuing a discovery order.7
          We  review a trial courts decision to admit or  exclude
evidence  for  abuse  of  discretion, and  will  reverse  such  a
decision only if the error affected the substantial rights  of  a
party.8   Similarly, we generally review a trial courts  decision
to  admit expert testimony for abuse of discretion.  But when the
admissibility of evidence or expert testimony turns on a question
of law, we apply our independent judgment.9
          The  decision  to  grant or deny a new  trial  is  also
within the trial courts sound discretion.10  We will disturb  the
trial  courts exercise of discretion only in the most exceptional
circumstances to prevent a miscarriage of justice,  and will find
an abuse of discretion only  when evidence to support the verdict
was  completely lacking or was so slight and unconvincing  as  to
make the verdict plainly unreasonable and unjust. 11  In reviewing
an  order denying a new trial, we view the evidence in the  light
most  favorable to the non-moving party.12  However, whether  the
trial  court  applied the correct legal standard in  granting  or
denying a new trial is a question of law that we review de novo.13
          We  review for abuse of discretion a trial courts fact-
based  decisions as to whether attorneys fees are reasonable  and
should  be awarded.14  An award of attorneys fees constitutes  an
abuse  of  discretion only when it is manifestly  unreasonable.15
However,  we  review de novo whether the trial court applied  the
law correctly in awarding attorneys fees.16
IV.  DISCUSSION
     A.   The Superior Court Did Not Abuse Its Discretion in Denying
          Marrons Motion To Compel Production of Dr. Rubensteins and James
          Stirlings Income Tax Returns.
          The  superior court denied Marrons pre-trial motion  to
compel two of Stromstads expert witnesses, James Stirling and Dr.
Rubenstein,  to disclose their tax returns.  Both  witnesses  had
refused   Marrons  request  to  produce  the  returns  at   their
depositions.  Although both originally claimed to have  testified
or  worked  as litigation consultants roughly as many  times  for
civil plaintiffs as for civil defendants, Stromstad concedes that
their  deposition testimony revealed that in fact both  witnesses
had worked predominantly as defense experts.
          Marron  sought to compel discovery of their income  tax
returns  to  prove  what she believed to be  a  strong  financial
motivation on the part of both Stirling and Rubenstein to provide
testimony that favored the defense.
          The  superior court denied Marrons motion.   The  court
held  that  revealing  opposing witness  bias  was  an  important
          interest, and one that Marron was entitled to reveal through
cross-examination  at  trial.  However,  the  court  stated  that
[p]laintiffs right to discovery must be balanced with the experts
right of privacy.  The court held that the experts would retain a
right  of  privacy  in their tax returns, but may  be  questioned
about  the  type  of  information that may  be  contained  in  or
referenced   from  the  returns.   Marron  claims   this   ruling
constitutes an abuse of discretion.
          There  is  no absolute right to privacy from  discovery
orders  to  produce  tax returns.17  Generally,  a  litigant  may
discover  an opponents tax returns for the sake of determining  a
partys  damages.18   But  we have never  specifically  determined
whether  a witnesss tax records are discoverable for the  purpose
of  showing  that  witnesss  bias, or  impeaching  that  witnesss
credibility at trial.
          Alaska Civil Rules 26(b)(2)(i) and (iii) allow a  court
to  limit  discovery where the information sought  is  obtainable
from  some other source that is more convenient, less burdensome,
or  less  expensive, or if the burden or expense of the  proposed
discovery  outweighs its likely benefit.  We interpret this  rule
in light of Marrons purpose in seeking the tax returns:  to prove
the experts alleged pro-defense bias.  Under cross-examination by
Marron, both Dr. Rubenstein and Stirling admitted that they offer
their   litigation   services  primarily  to   defendants.    Dr.
Rubenstein  also  discussed the amount Stromstad compensated  him
for testifying.  Because Marron elicited the information that she
sought   that  the experts worked primarily for  defendants   the
superior  court  did  not abuse its discretion  in  not  allowing
Marron to discover the witnesses tax records.19
          Because  the  superior  court  acted  well  within  its
discretion,  we  uphold its refusal to compel  discovery  of  the
experts tax forms.
     B.   The Superior Court Did Not Abuse Its Discretion in Refusing
          To Strike Dr. Whites Testimony.
          Marron  appeals the superior courts refusal  to  strike
Dr.  Whites testimony that discogram procedures such as  the  one
performed  by Dr. Uppal are unreliable and that Marrons  reaction
to the Waddell maneuver indicated her unfitness for surgery.
          1.   The  superior court was not required  to  consider
               Dr. White, as Marrons treating physician, to be an
               expert witness, and was thus within its discretion
               to  admit his testimony without a Rule 26(a)(2)(B)
               expert report.
          Marron  argues  that  the  superior  court  abused  its
discretion  in  admitting the testimony  of  Dr.  White,  Marrons
treating physician, pertaining to discograms, because he did  not
provide  an expert witness report and because Marron was unfairly
surprised  by  the  testimony.  The issue  turns  on  the  proper
interpretation  of Alaska Civil Rule 26(a)(2)(B), which  provides
that [e]xcept as otherwise stipulated or directed by the court, a
party  must  provide  a  written report of  each  of  its  expert
witnesses containing a complete statement of all opinions  to  be
expressed and the basis and reasons therefor;  the data or  other
information considered by the witness in forming the opinions . .
          . [and] the qualifications of the witness.
          Stromstad  does  not dispute that expert  testimony  is
inadmissible  without  a preliminary report.   Rather,  Stromstad
explains  that the superior court did not require the  disclosure
of  Dr. Whites opinions prior to his deposition because Dr. White
was  Marrons  treating  doctor, not a  retained  defense  expert.
Stromstad cites Fletcher v. South Peninsula Hospital20 and Miller
ex  rel.  Miller v. Phillips21 for the proposition that  treating
physicians need not be listed as experts, and can testify without
meeting  the  disclosure requirements of  Rule  26(a)(2)(B).   We
agree with Stromstad.22
          Marron asserts that her principal argument is based  on
fairness:   A treating physician is allowed to testify  regarding
anything previously produced in his medical records because there
is no surprise to the opposing party.  Marron states that she was
completely  surprised  by  Dr.  Whites  discogram  testimony   at
deposition,  even if he was her treating physician.  Undoubtedly,
an overall aim of evidentiary, discovery, and procedural rules is
to  prevent unfair surprise to litigants.  The critical  question
is thus whether Marron was unfairly surprised.
          The superior court acknowledged that Dr. Whites medical
report   (prepared   prior  to  the  deposition)   contained   no
information on discograms or why Dr. White elected not to perform
this  procedure on Marron to determine her fitness  for  surgery.
However,  Marron  next consulted Dr. Uppal,  who  did  utilize  a
discogram  in  deciding to operate on Marron.   Accordingly,  the
court  felt  it was foreseeable that Stromstad would explore  why
Uppal  and  not White found Marron suitable for surgery,  .  .  .
[and] that Stromstad would ask White about the use of a discogram
or  why he had not used the technique used by Uppal.  Considering
that  Marron knew exactly what techniques Dr. White used and  did
not  use,  the court concluded that Marron should not  have  been
surprised  that  White discussed discograms  at  his  deposition.
Furthermore, the court reasoned that if Dr. White was not allowed
to  explain  at  trial why he did not use a discogram,  then  Dr.
Uppal  would  be  able  to argue that his use  of  the  discogram
explained  the  difference in the two opinions regarding  Marrons
need for surgery.  This, the court concluded, would give the jury
an  inaccurate picture of what happened.  A trial court has  wide
discretion  in  managing  the discovery process23  and  admitting
expert testimony.24  In light of the above considerations, we find
that  the  superior  court did not abuse its discretion  on  this
point.
          2.   Because  Dr. White was Marrons treating physician,
               the  superior  court did not err in admitting  his
               testimony  without  subjecting  it  to  a  Daubert
               analysis.
          Marron  additionally asserts that Dr. Whites  testimony
should  have  been  excluded because his decision  to  disqualify
Marron  from surgery was based on a mistaken application  of  the
Waddell  test,  one inadmissible under the Daubert  standard  for
admitting  or  excluding expert testimony.   The  superior  court
disagreed,  declaring that Whites use of the Waddell  factors  in
making  his  evaluation is not the type of expert testimony  that
          must be subjected to Daubert, because Dr. White used those
factors in making his decision not to perform surgery.  Stromstad
agrees,  explaining that Dr. Whites testimony was  based  on  his
application  of the Waddell test in treatment, and  was  not  the
testimony of a retained expert.
          As discussed below in Part IV.C, Daubert v. Merrell Dow
Pharmaceuticals, Inc.25 governs the admissibility  of  scientific
expert  testimony in federal courts.  We have adopted  Daubert,26
but   have   never  explicitly  determined  whether  a   treating
physicians testimony must meet the Daubert criteria.
          Some federal courts have applied Daubert to exclude the
testimony of treating physicians.  However, they have done so  in
cases where the issue was whether the physician should be allowed
to  testify  as  to  causation  that is, to  state  a  scientific
conclusion.27  As Stromstad notes, Dr. White applied the  Waddell
test  to  Marron in the course of determining treatment,  not  in
preparation for litigation, and not to determine the causation of
her   alleged  injuries.   At  least  one  federal  decision  has
explained that testimony about the type of treatment performed on
[a  patient] is factual in nature and is not subject to exclusion
under  a  Daubert analysis.28  As such, this testimony should  be
rebutted  by  cross-examination of the  treating  physician,  not
preemptively  excluded.29   This  notion  finds  support  in  our
decision in Miller, which upheld a superior court ruling that the
treating physician would be forbidden from testifying in  general
terms  about the appropriate standard of care, [but] he would  be
allowed to testify as to his own opinion as to what he observed.30
          The  superior  court  followed this  logic  in  denying
Marrons motion to strike Dr. Whites testimony.  The court  stated
that  even  if  Dr.  Whites  use  of  the  Waddell  factors   was
unsupported  by  scientific theory or empirical research,  Whites
use of those factors is a historical fact that partially provides
the  basis for the decision not to perform surgery.  We now  hold
that  when  a treating physician testifies regarding a course  of
treatment,  the physicians testimony need not be subjected  to  a
Daubert  analysis.   We therefore hold that  the  superior  court
correctly  refused  to  apply  Daubert  to  exclude  Dr.   Whites
testimony.
     C.   The  Superior  Court Was Not Required  To  Exclude  the
          Testimony of James Stirling or Dr. Rubenstein.
          Stromstad  sought  to  introduce testimony  from  James
Stirling as an accident reconstruction expert,  to rebut  Marrons
testimony  suggesting the accident involved a forceful impact  on
her  car, and the likely accompanying inference that the accident
caused  her injuries.  Stromstad also sought to introduce  expert
testimony  from Dr. Rubenstein that (1) Marron was not  a  proper
candidate  for  surgery;  (2) there was no  objective  basis  for
Marrons  pain  complaints; (3) her complaints and treatment  were
caused  by  other  factors like drug seeking behavior,  secondary
gain and/or some sort of histrionic psychological makeup, and (4)
a  rear-end accident at less than five miles per hour  could  not
have  caused Marrons injury.  Marron moved in limine  to  exclude
both   experts  testimony.   The  superior  court   allowed   Dr.
Rubenstein to testify on the above topics, although it prohibited
          him from testifying about some of his specific sources or
conclusions that the court determined were too speculative.   The
superior  court allowed Stirling to testify as a general accident
reconstructionist, which allowed him to testify about  the  speed
each  car  was  going at impact, the difference in  the  relative
speeds  of  the cars, the damage done to the car in which  Marron
was riding . . . and the effect of impact on the forward movement
of [Marrons] vehicle.
          On appeal, Marron asserts that the superior court erred
in  admitting Stirlings testimony, because he was not a qualified
expert,  his  investigation  of the accident  and  basis  of  his
opinions  were  insufficient,  his  testimony  does  not  satisfy
Daubert, his testimony did not assist the trier of fact, and  the
probative   value  of  his  testimony  was  outweighed   by   its
prejudicial effects.  Similarly, Marron claims that the  superior
court  should have excluded Dr. Rubensteins testimony because  he
was  not  qualified to testify as an expert in this  action,  his
opinions  were  speculative and did not  meet  the  standards  of
medical  certainty, and his opinions did not satisfy the  Daubert
standard adopted by Alaska.  None of Marrons claims has merit.


          1.   Stirling   and   Dr.  Rubenstein   were   properly
               qualified as experts.
          The  superior  court did not abuse  its  discretion  in
qualifying  Stirling  and  Dr. Rubenstein  as  expert  witnesses.
Trial judges have wide discretion to determine whether to qualify
witnesses  as  experts.31   As  explained  earlier,  our  liberal
admissibility standard for expert testimony32 allows  any  person
with specialized knowledge to serve as an expert witness, so long
as  that knowledge is relevant, in that it can help the trier  of
fact  understand  evidence  or  determine  facts  in  issue.   No
specific training or formal education is required.33
          Marron  argues that Stirling was unqualified to  be  an
expert  witness because he does not have a Bachelors degree.   He
has  no  degree  of  any  kind  in  engineering.   He  is  not  a
biomechanic.  Stirlings formal training is limited to courses  in
accident  reconstruction,  but the  record  indicates  that  this
coursework  was both extensive and highly specialized.   Stirling
is  also a member of several professional societies, is certified
by  this state as a police instructor in accident reconstruction,
and  has  been  working in his field since the  late  1970s.   By
Stirlings  estimation, he has assisted in  or  investigated  over
4,500  accidents.   The  superior  court  was  thus  within   its
discretion in holding that whatever the limitations of  Stirlings
expertise in determining the force of the accident, it is a  more
informed evaluation than could be made by a jury looking  at  the
same  evidence  without the assistance of  an  expert.   This  is
fundamentally all that Alaska Rule of Evidence 702 requires.
          Marron  argues  that as a neurologist,  Dr.  Rubenstein
should  not have been qualified as an expert witness, because  he
is  not  a  surgeon,  biomechanics  specialist,  psychiatrist  or
psychologist,  yet  his  testimony  touched  on  those  areas  of
expertise.   But  we  have specifically  rejected  a  reading  of
          Evidence Rule 702 that would require expertise in precisely the
area  upon which the expert proposes to comment. 34  Despite  his
limited knowledge of surgery, psychology, or biomechanics,  as  a
neurologist  Dr. Rubenstein testified that he was  an  expert  in
eliciting  objective  findings via the neurological  examination,
and  an  expert  in recommending alternative forms of  treatment.
Dr.  Rubenstein  also  performed  a  five-hour  exam  on  Marron,
explained  the procedures performed by Dr. Uppal, and  correlated
Marrons  MRI  results with his own examination.  Dr.  Rubensteins
testimony was thus certainly helpful to the jury in making a more
informed evaluation of the evidence.











          2.   Daubert   did  not  apply  to  Stirling   or   Dr.
               Rubenstein.
               As noted earlier,35 we adopted Daubert in State v.
Coon.36   Daubert requires the trial judge to make a  preliminary
determination  that   the  reasoning  or  methodology  underlying
[expert] testimony is scientifically valid and . . . properly can
be applied to the facts in issue. 37  In other words, at its most
basic  level Daubert contains two essential requirements for  the
admission of scientific expert testimony: it must be reliable and
it  must  be  relevant.38    In  reviewing  trial  court  Daubert
decisions, we have adopted the abuse of discretion standard  used
by  federal  courts, in light of Dauberts goal of allowing  trial
courts  greater  flexibility in determining the admissibility  of
expert testimony.39
          In  this  case,  the  superior court expressed  serious
misgivings  about  the reliability of Stirlings specific  methods
and  conclusions.  The court noted that there  is  no  reason  to
believe  that  Stirling has done any testing  to  determine  what
damage,  to  a specific model of car, a collision of a particular
configuration and speed will produce,  and the court  saw  little
reason  to  believe that Stirling can discern [the]  quantity  of
damage  from  photos and repair estimates and translate  it  into
speed  differential.  Nonetheless, the superior court decided  to
allow Stirling to testify because [t]here is an enormous body  of
experimentation  concerning the damage done  to  vehicles  in  an
accident,  and [h]aving seen thousands of accidents, one  assumes
that Stirling has developed a pretty good sense of the amount  of
damage that occurs in accidents at different speeds.
          Similarly, the superior court did not conduct a Daubert-
style  analysis of Dr. Rubensteins specific methodology  in  this
case.   Based  only  on  his credentials as  a  neurologist,  Dr.
Rubenstein  was  allowed to testify as to the basis  for  Marrons
          pain (whether psychological, drug-seeking, or the result of the
accident  with  Stromstad)  and  whether  Marron  was  a   proper
candidate  for surgery.40  Thus, the superior court admitted  the
testimony of Stirling and Dr. Rubenstein based on the reliability
of  their  expertise in general, rather than its  application  in
this particular case.  We must determine whether this was proper.
          Under  federal law, the manner in which the trial court
admitted  the  testimony  of  Stirling  and  Dr.  Rubenstein  was
probably  erroneous.  Daubert by itself does  not  apply  to  the
testimony of Stirling and Dr. Rubenstein  its holding was limited
to  testimony  based strictly on scientific knowledge,  that  is,
knowledge that has been derived by the scientific method.41   But
the  Supreme Court later extended Daubert to cover all  technical
or other specialized knowledge in Kumho Tire Co. v. Carmichael.42
In  other words, all expert testimony in federal courts must  now
meet  the  Daubert  requirements of  reliability  and  relevance.
Thus, under Kumho Tire and Daubert, the testimony of Stirling and
Dr.  Rubenstein could not have been presented to the  jury  until
the  trial judge first evaluated the reliability of the  evidence
by,  for  example, determining whether Dauberts four  factors  in
assessing scientific testimony were applicable or dispositive  to
the  present testimony.43  But we have never adopted Kumho  Tires
extension  of  Daubert  to  all expert testimony,44  and  we  now
explicitly  decline to do so.  Instead, we limit our  application
of  Daubert  to expert testimony based on scientific  theory,  as
opposed to testimony based upon the experts personal experience.
          Alaskas  rules  of evidence are similar  to,  and  were
modeled  after the Federal Rules of Evidence.45  This  gives  the
evidentiary decisions of federal courts, particularly the  United
States  Supreme Court, considerable persuasive weight.   However,
like  other  states,  we are not bound by the  Federal  Rules  of
Evidence, and federal decisions interpreting federal rules do not
govern state court decisions based on state rules.46  We noted in
Coon  that  in adopting Daubert we are not bound by  the  Supreme
Courts  conclusion[s],47 but its analysis  of  the  corresponding
federal rules is helpful.48  And as the Indiana Supreme Court has
stated,  Rule  702  of the Federal Rules of  Evidence  is  not  a
minimum constitutional requirement applicable to the states.49  In
short,  we  are not bound by Kumho Tire, even if we do apply  the
Daubert standard to our own rules of evidence.
          Kumho  Tires expansion of Daubert to cover  all  expert
testimony  has  been widely criticized.50 Daubert was  formulated
with  an eye toward the permissive backdrop of the Federal  Rules
of  Evidence, and was intended to overturn the overly austere and
rigid general acceptance test of expert testimony then favored by
many  federal courts.51  The Court noted that such a test was  at
odds  with  the  liberal thrust of the Federal  Rules  and  their
general  approach of relaxing the traditional  barriers   to  the
admission of expert testimony.52  We too have a liberal  standard
favoring the admissibility of expert testimony,53 and we cited the
Courts language approvingly in Coon.54  We have adopted a liberal
standard  for  admitting  evidence to  increase  the  information
available  to  the  fact-finder, whose role  in  the  adversarial
process  is crucial.  Yet the concern that Daubert would  usurp[]
          the jurys duty to determine the credibility of expert testimony,55
only  increased after Kumho Tire.  Critics argued  that  the  new
federal  standard   presuppos[es] that the traditional  adversary
process  is  insufficient to enable opposing  counsel  and  their
experts to ferret out inaccuracies and bias in expert testimony. 56
Moreover, as noted by Professor Saltzburg, these reforms  in  the
law of evidence that were intended to liberalize the admission of
expert testimony have now been interpreted to constrict the  flow
of  expert opinion in trials.57 Dauberts requirements can also be
easily   exploited  by  litigants,  leading  to  mini-trials,   a
prolonged  discovery  process,  and  prohibitive  costs  to  both
parties and the court.58  Expanding Dauberts scope to include all
expert  testimony seriously exacerbates these problems.   Several
states  have agreed, and have declined to adopt the expansion  of
Daubert that Kumho Tire accomplished.59
          In  maintaining Dauberts distinction between scientific
and  other  technical or specialized knowledge, we  look  to  the
definitions  provided by Daubert itself.  As  the  Daubert  Court
explained,   scientific implies a grounding in  the  methods  and
procedures  of  science,  and   knowledge  connotes   more   than
subjective  belief or unsupported speculation.60  Science  itself
represents  a  process  for  proposing and  refining  theoretical
explanations about the world that are subject to further  testing
and refinement, and scientific knowledge refers to inferences  or
assertions  derived  from  the scientific  method.61   In  short,
scientific testimony is based on theory, and may be subjected  to
objective testing.
          It  is true, as the Supreme Court suggested, that there
is  often  no clear line dividing scientific from other technical
or   specialized  knowledge,  and  technical  but  non-scientific
evidence  may  often  be vetted in the same fashion  as  strictly
scientific  evidence.  But much if not most expert  testimony  is
based on specialized knowledge derived only from experts personal
experience  and  intuition.62  This evidence is  not  empirically
verifiable  or  objectively testable.  The Daubert  factor-driven
test  is  useless as a criterion for the admissibility  of  other
types  of  expert  testimony.63  As Professor Saltzburg  and  his
colleagues noted, [m]any fields of expert testimony . . .  simply
lack  the intellectual rigor of Newtonian experimental science.64
Instead  of  using methods that enjoy a high level  of  objective
verifiability,  they depend on a more subjective  application  of
the  experts practical experience to the particular facts of  the
case.65  But [n]othing in the language or legislative history  of
the  [federal rules] justifies any presumption against  admitting
expert   testimony66  in  such  cases.   Rather,  the  text   and
legislative  history  of  the  Rules  affirmatively  support  the
admission  of  such  evidence.67   Expanding  Daubert  to   cover
testimony  of  this sort is inconsistent with Rule 702s  explicit
acknowledgment   of   experience  as  a  basis   for   expertise,
contradicts the prior application of the evidence rules  and  the
common  law, and would endanger a vast array of expert  testimony
that  has  been  accepted  . . . for decades.68   We  agree  with
Professor  Saltzburg  and  his colleagues  that  experience-based
expert  testimony  was  traditionally favored  over  theory-based
          expert testimony, and that [a]dopting the idea that subjective
expert  testimony  based  on specialized knowledge  derived  from
experience . . . should be distrusted and targeted for  exclusion
. . . would turn evidence law on its head.69
          We   also  agree  with  Professor  Saltzburg  and   his
colleagues  that experts can often help jurors on  the  basis  of
their  experience by virtue of their specialized  knowledge  that
educates  them about relevant factors to consider in  determining
an  issue.70  In such cases, the threshold for admissibility need
not be as high as when a sophisticated scientific question beyond
the  jurys  everyday  world  experience  and  ordinary  mode   of
reasoning  is  at  issue.71  The testimony of  Stirling  and  Dr.
Rubenstein  is clearly within the jurys everyday world experience
and  ordinary  mode  of  reasoning.   It  is  also  the  sort  of
experience-based testimony the admission of which  is  encouraged
by  our rules of evidence and traditional evidence standards, yet
whose  admissibility would be threatened under  Kumho  Tire.   We
hold  today that the admissibility of experience-based  testimony
should  be governed by these traditional standards and  rules  of
evidence, as further discussed below.  Where the expert testimony
is  plainly  derived  from experience  not  from  the  scientific
method   and is not dependent on sophisticated scientific theory,
Daubert does not apply.  The admission of such testimony  is  not
dependent on satisfying the Daubert requirements.  Kumho Tire  is
inconsistent with this standard.
          A  trial  court need not apply the Daubert standard  to
all  expert testimony in order to ensure that it is relevant  and
reliable.   As  the Supreme Court itself noted in Daubert,  there
are  numerous  other rules of evidence that serve to  ensure  the
reliability of expert testimony.72  For example, both Federal and
Alaska  Rule of Evidence 702 require that all experts be properly
qualified   by   knowledge,  skill,  experience,   training,   or
education.73  In addition, the experts knowledge must assist  the
trier  of fact to understand the evidence or to determine a  fact
in  issue.74  Under Rule 703, the facts or data in the particular
case  upon which an expert bases an opinion or inference must  be
of  a  type  reasonably relied upon by experts in the  particular
field.75  Under both Federal and Alaska Rule of Evidence  706,  a
court  may  appoint its own independent expert witness to  advise
the court.76  Under both Federal and Alaska Rule of Evidence 403,
the   judge  may  exclude  evidence  whose  probative  value   is
outweighed  by the danger of unfair prejudice, confusion  of  the
issues,  or misleading the jury.77  In extreme cases,  where  one
side  has  proffered  only an insufficient  scintilla  of  expert
testimony  or  other evidence,  the court is  free  to  direct  a
judgment  or to likewise grant summary judgment.78  Perhaps  most
importantly,  the  Supreme  Court noted  that  [v]igorous  cross-
examination,  presentation  of  contrary  evidence,  and  careful
instruction  on the burden of proof  in short, the basic  pillars
of  the  adversary  system  are the traditional  and  appropriate
means of attacking shaky but admissible evidence.79
          This  decision  should  not  be  read  as  a  wholesale
rejection  of  Kumho Tire.  We offer no opinion  on  Kumho  Tires
clarification   of  the  proper  procedure  and   standards   for
          performing a Daubert analysis of scientific testimony.  Our
decision not to adopt Kumho Tire and to limit Daubert is  limited
to  the  situation before us:  the admission of expert  testimony
based on accrued wisdom and personal experience.  Accordingly, we
hold  that the superior court did not err in admitting the expert
testimony  of  Stirling  and  Dr. Rubenstein  without  a  Daubert
analysis.
          3.   Dr.   Rubensteins   opinions   were   not   overly
               speculative and they met the standards of  medical
               certainty.
          Marron also claims that the superior court should  have
granted her motion in limine to exclude Dr. Rubensteins testimony
because  his  opinions  are  speculative  and  do  not  meet  the
standards of medical certainty.  Marron recites several  specific
facts  related to her medical history and treatment of which  Dr.
Rubenstein  was apparently unaware at the time of his deposition:
whether  Marron  had  suffered pain prior to  the  accident  with
Stromstad, when the last time prior to his examination of her she
had taken any prescription pain medication, and the half-life  or
length of effectiveness of her prescription drugs.  We reject the
argument   that  Dr.  Rubensteins  testimony  should  have   been
precluded because it was speculative.
          In  Maddocks  v.  Bennett,80 we stated that  a  medical
experts opinion must be within a reasonable medical certainty  or
the equivalent reasonable medical probability to be admissible.81
Maddocks  indicates that reasonable probability is determined  by
the  experts  own  confidence in the  experts  testimony.82   Dr.
Rubenstein himself stated that he believed his conclusions to  be
within  a reasonable degree of medical certainty based on Marrons
medical records and MRI results.
          Although,  as  Marron  notes, Dr.  Rubenstein  admitted
ignorance  as  to several details of Marrons medical  history  or
treatment, nothing in the language of Maddocks indicates  that  a
medical expert must know every factual detail of a case before he
can  testify to a reasonable probability.  Even where  a  medical
expert is uncertain as to a specific fact, his overall conclusion
is  not  necessarily speculative.83  Dr. Rubenstein testified  at
trial  that traumatic disc herniation is extraordinarily  unusual
without fracture of the bony vertebral bodies, and that MRI films
indicated that there was certainly no evidence of disc herniation
or  other  damage  to Marrons vertebral bodies.  Dr.  Rubensteins
language  and  the  evidence  upon  which  it  was  based  easily
satisfied the Maddocks standard of medical certainty.
          4.   The superior court did not abuse its discretion in
               admitting Stirlings testimony.
          Marron also claims that Stirlings investigation of  the
accident,  and thus the basis for his opinions, was insufficient;
that Stirlings testimony [did] not assist the trier of fact;  and
that the probative value of Stirlings testimony was outweighed by
its   prejudicial   effects.   All  of  these  remaining   claims
essentially  call for this court to find that the superior  court
abused its sound discretion in admitting evidence.  We decline to
do so.
            Accident  reconstructionists, and James  Stirling  in
          particular, have previously been allowed to testify in similar
cases.84  That the testimony of such experts assists the trier of
fact  is  self-evident.  Although a jury might  have  found  that
Stirlings  investigation,  or the  basis  of  his  opinions,  was
insufficient,  it  was  Marrons responsibility  to  expose  these
weaknesses  through  cross-examination and  the  presentation  of
countervailing expert testimony.  Accordingly, we find  that  the
superior   court  did  not  abuse  its  discretion  in  admitting
Stirlings testimony.
     D.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Admitting Photographic and Insurance Appraisal Evidence
          of the Damage to Marrons Vehicle.
          Marron  claims that the superior court should not  have
allowed  Stromstad  to  introduce photographs  and  an  insurance
appraisal  indicating the damage (or lack of damage)  to  Marrons
car.   Marron  asserts that any probative value of this  evidence
was  outweighed by the risk of prejudice.  Marron  suggests  that
this evidence would have led the jury to believe the accident was
so  minor  that it could not have caused her injuries.  Stromstad
responds  that this evidence, in tandem with Stirlings  accident-
reconstruction testimony, shows the low force of the impact.
          Marron  relies  principally on Davis v. Maute,85  whose
essential  facts are quite similar to this case:  The  defendants
conceded  negligence led to an alleged minor impact in which  the
plaintiff  allegedly sustained injury.  The only  issue  was  the
extent to which the accident caused the plaintiffs injuries.  The
defendant had introduced photographs showing light damage to  the
plaintiffs car.86  The Supreme Court of Delaware held that without
the  support of competent expert testimony, a party generally may
not  claim  a  correlation between the extent of  the  damage  to
automobiles  in  an  accident and the  extent  of  the  occupants
personal injuries, even by implication.87  Since the defendant had
not  introduced expert testimony, the court reversed the  verdict
and remanded for a new trial.88  Stromstad asserts that Davis  is
inapplicable  to  this  case, because he  introduced  two  expert
witnesses.   We agree.  Moreover, we decline to adopt  the  rigid
approach represented by that case.
          We  are  unaware  of any other jurisdiction  which  has
adopted  a  rule  that collision evidence is per se  inadmissible
without  expert testimony,89 and we decline to do so.  The  trial
court  properly  has the discretion to weigh the prejudicial  and
probative value of photographs and other evidence of the severity
of  an  accident.  Evidence showing Marrons vehicle was undamaged
can  be  probative of the force with which the accident occurred,
and  the likelihood that it caused serious harm to Marron.  Thus,
the  court  did  not  abuse  its  discretion  in  admitting  this
evidence.
     E.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Limiting   Cross-Examination  of  Dr.  Rubenstein   and
          Excluding Reports of His Previous Examinees.
          Marron  next  asserts  that,  even  assuming  that  Dr.
Rubensteins  testimony was properly admitted, the superior  court
abused  its discretion in limiting her cross-examination  of  Dr.
Rubenstein on medical examination reports that Dr. Rubenstein had
          prepared in earlier cases.  Marron also asserts that the superior
court  abused  its  discretion by refusing to  admit  those  same
reports into evidence.  Marron offered these reports to show  Dr.
Rubensteins  bias  against plaintiffs and towards  the  insurance
defense  industry.  According to Marron, the striking  similarity
between Dr. Rubensteins reports reveals Dr. Rubensteins skill  in
invalidating claimants, and tends to show that Dr. Rubenstein  is
hired  because the insurance defense industry already knows  what
his report will say.
          However,  at  trial  Marron  focused  primarily  on   a
different basis for admitting the reports.  She asserted that the
reports  would impeach Dr. Rubenstein regarding the  thoroughness
of  his  examination of Teva Marron.  Marron explained  that  the
reports   show   that   Dr.  Rubenstein   performed   much   more
comprehensive  examinations  on  the  subjects  of  the  reports,
including a set of specific tests administered only on the  three
prior plaintiffs.  Accordingly, the superior court gave Marron  a
fair  amount of leeway to impeach [Dr. Rubenstein] on what  tests
he used and what tests he didnt use . . . to somehow convince the
jury that his evaluation is less credible.
          Marron   briefly   presented  a   second   theory   for
admissibility  of Dr. Rubensteins reports of prior  examinations.
She  argued that because Dr. Rubenstein offered the same  opinion
for the three prior plaintiffs, despite the possibility that they
had  different  constellations [of symptoms],  the  reports  were
probative of Dr. Rubensteins bias:
          MS.  POWELL:  Okay.  And the  conclusions  on
          each  of the [defense medical exams conducted
          by Dr. Rubenstein] were identical.
          
          THE COURT: That I dont see any reason for you
          to  bring in.  Because now were going to have
          to, I mean, who knows why are[,] or the other
          three  people[,]  I  mean,  those  are  three
          different     patients     with     different
          constellations of problems.
          
          MS. POWELL: With the same result.
          
          THE COURT: Maybe  the result maybe the same.
          
          MS. POWELL: Uh-hum.
          
          THE  COURT: But that doesnt necessarily  mean
          that the individual constellation of symptoms
          are the same.
          
          MS.  POWELL: Yeah, that  thats why I  believe
          its   probative,  because  they   are   three
          different     people,     three     different
          constellations  and he has the  same  opinion
          about  all  of them.  Actually four including
          [Marron].
          
          THE  COURT: Im not going to let you  go  into
          that.   You can ask about the specific  tests
          that   he  used  or  didnt  use  or  specific
          circumstances where he says he might  not  or
          would not use a test, you can impeach him  by
          showing   that   he  used   them   in   those
          circumstances in the past, but you cant bring
          in  the  three other case histories with  the
          similar conclusion.
          
          MS. POWELL: Okay.
          
          THE COURT: Anything further?
          
          MR. BURKE: No, Your Honor.
          
          MS. POWELL: No.
          
          This  was  the  extent of Marrons presentation  on  the
relevance  of the earlier reports.  Marron points out  on  appeal
that  Dr.  Rubenstein used identical language in his  conclusions
and  recommendations in these reports and in Marrons and that  he
simply  parrot[ed] his conclusions from report  to  report.   But
this argument was not made to the trial court, and Marron did not
narrow  her  request by pointing to specific  language  from  the
reports that she sought to introduce.
          The  superior  court did not explain  its  reasons  for
limiting   Marrons  examination  of  Dr.  Rubenstein.   Stromstad
suggests  quite reasonably that the courts decision was based  on
Alaska Rule of Evidence 403.  That rule allows a court to exclude
evidence,  even if relevant, if its probative value is outweighed
by  the  danger of . . . confusion of the issues  .  .  .  or  by
considerations of undue delay [or] waste of time.  Marron herself
admits  that cross-examination is [s]ubject always to  the  broad
discretion  of  a trial judge to preclude repetitive  and  unduly
harassing interrogation.
          The record shows that Marron mounted an effective cross-
examination of Dr. Rubenstein within the courts parameters.   The
cross-examination  revealed evidence that Dr. Rubenstein  did  in
fact  fail  to  thoroughly  examine Marron;  in  particular,  Dr.
Rubenstein  admitted he neglected some aspects of the examination
because he was fatigued.  Marrons cross-examination also revealed
the   fact   that   Dr.  Rubensteins  litigation   services   are
predominantly  done on behalf of defendants.  And Dr.  Rubenstein
admitted that he had received $25,000 in compensation for his pre-
trial services on behalf of Stromstad.  Marron was therefore able
to   adduce   substantial  evidence  tending  to   diminish   the
effectiveness of Dr. Rubensteins testimony.
          The superior court thus did not abuse its discretion in
applying the balancing test inherent in Rule 403 to limit  cross-
examination of Dr. Rubenstein and exclude his reports of previous
cases from evidence.
     F.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Denying Marrons Motion for a New Trial.
          
          Following  trial,  Marron moved  for  a  new  trial  on
various grounds.  The superior court denied the motion and Marron
appeals.   Marron  argues that she should  receive  a  new  trial
because  the  superior court denied Marrons request to  introduce
evidence  of Stromstads insurance coverage, because the  superior
court   erroneously  admitted  the  expert   testimony   of   Dr.
Rubenstein, and because Stromstads closing argument violated  the
superior  courts protective order.90  The starting point  of  any
inquiry into the request for a new trial is Alaska Rule of  Civil
Procedure 61, which provides:
          No  error  in  either the  admission  or  the
          exclusion of evidence and no error or  defect
          in any ruling or order or in anything done or
          omitted by the court or by any of the parties
          is  ground  for granting a new trial  .  .  .
          unless refusal to take such action appears to
          the   court   inconsistent  with  substantial
          justice.   The  court at every stage  of  the
          proceeding must disregard any error or defect
          in  the proceeding which does not affect  the
          substantial rights of the parties.
          The  party  requesting a new trial has  the  burden  of
proving  both error and prejudice.91  As noted above,92  a  trial
courts  grant or denial of a new trial is reviewed for  abuse  of
discretion.  Before we will find an abuse of discretion, we  must
have  a  definite and firm conviction of an error, based  on  the
entire  record,  viewed  in a light most favorable  to  the  non-
movant.93  This is a highly deferential standard of review, and we
have  expressed  great reluctance to interfere  with  a  superior
courts  decision  to  deny  a  new  trial,94  absent  exceptional
circumstances.95
          1.   The superior court properly denied Marrons request
               to  introduce  evidence  of  Stromstads  insurance
               coverage in response to his opening statement.
          In  his opening statement, Stromstads counsel told  the
jury  that  this  case was about an unusual extreme  overreaction
that  Mr. Stromstad should not be held responsible for and should
not  have to pay for.  Marron asserts that this remark improperly
and  untruthfully implied that [he] was uninsured  and  would  be
personally responsible for any judgment.  Accordingly,  at  trial
Marron  requested to cure this alleged impropriety by introducing
evidence  of  Stromstads insurance coverage.  The superior  court
refused to allow her to do so.  Marron subsequently moved  for  a
new  trial,  based  partly on the courts  refusal  to  admit  her
evidence  of  Stromstads insurance.  Marron  appeals  the  courts
refusal  to  admit the above insurance evidence as  well  as  its
refusal  to  grant her a new trial on this basis.   Because  both
points  on  appeal  require  similar analysis,  we  address  them
together.
          Trial  courts  should  generally  exclude  evidence  of
parties  insurance  coverage, so as to prevent  such  information
from distracting or prejudicing the jury.  Improper admission  of
insurance  evidence  can constitute an abuse  of  discretion  and
grounds  for a new trial.96  And we have found that some comments
can be understood as improperly suggesting that a defendant lacks
insurance  coverage.97  But even assuming without  deciding  that
Stromstads counsels comment suggests a lack of insurance, we have
held that the mere inadvertent or incidental mention of insurance
          before a jury in the trial of a negligence action does not
automatically call for a mistrial.98  Rather, [i]f there  is  any
error at all in permitting a reference to be made to insurance  .
.  .  it must appear that such reference had a prejudicial effect
on  the  result of the trial in order for there to be  reversible
error.99  No such prejudicial effect is apparent here.
          The  superior  court was well within its discretion  in
finding that Stromstads comment did not prejudice Marron.  Marron
argues that Stromstads statement, coming at the very beginning of
the   case,  was  prejudicial  to  the  Appellant  as  the   jury
[subsequently]   received   all  of   the   evidence   with   the
misconception  .  . . that the Appellee would  have  to  pay  the
judgment  personally.   According to Marron,  this  misconception
thus  predispos[ed] the jury to accept all of the evidence during
the  ensuing  trial  sympathetically to the  Appellee.   However,
subsequent testimony at trial should have sufficed to correct any
misconceptions or predispositions.  Stromstad testified  that  he
had   exchanged  insurance  information  with  Marron  after  the
accident.100   Stirlings testimony was partly based  on  an  auto
repair  estimate  by  a field appraiser for  Allstate  Insurance.
Although the court excluded explicit testimony that Allstate  was
Stromstads insurer, the implication that Stromstad is insured was
at  least as apparent as any contrary implication from Stromstads
opening  statement.  We thus uphold the courts refusal  to  allow
Marron to cross-examine Stromstad about his insurance coverage as
well  within its discretion under Evidence Rule 403.   Stromstads
opening  statement did not clearly prejudice Marron, and  is  not
grounds for a new trial.
          2.   Even  if Stromstads closing argument violated  the
               superior courts protective order, Marron failed to
               object timely.
          The  superior court issued a pretrial amended order  in
response  to  Marrons motions in limine to limit  various  expert
testimony  and exclude certain evidence.  This order stated  that
Dr.  Rubenstein would be allowed to testify as to whether a rear-
end  accident at less than five miles per hour could have  caused
Marron  to have herniated her cervical disc but could not express
an  opinion  that low-speed car accidents are the  equivalent  of
ordinary activities such as sitting down or being slapped on  the
back.   During  his closing argument, Stromstad  noted  that  Dr.
Rubenstein had testified that it would take much more than a  one
to  three mile per hour impact to cause a herniated disc.  Marron
asserts that this was a violation of the pretrial order, and that
[v]iolation  of  a  courts previous protective order  by  defense
counsel in closing is ground for [a] new trial.
          We  have  never squarely held whether a summation  that
violates a previous protective order is in fact grounds for a new
trial.   But as a general rule, we have held that a party  waives
the  right  to  appeal improper summation arguments  unless  that
party  objects  to  them  at trial.101  Regardless  of  what  Dr.
Rubenstein actually testified to, and whether Stromstads  comment
somehow  violated  the  courts pre-trial order,  Marron  did  not
object  to  the  purportedly inadmissible comment  at  any  point
during  Stromstads closing argument, during Marrons own  rebuttal
          summation, or before or even after the final jury instructions
were  read.   Accordingly,  the superior  court  properly  denied
Marron a new trial on this issue.
     G.   Stromstads Attorneys Fees Must Be Itemized.
          Marron claims that the superior court erred in awarding
Stromstad attorneys fees without analyzing the reasonableness  of
such  fees.102  According to Marron, this reasonableness analysis
required  the court to examine a detailed listing of the services
sought  to  be  recovered, which Stromstad failed to  provide  in
response to Marrons request.103  Marron claims that awarding fees
to  Stromstad without itemization, based only on an  estimate  of
what  fee  amount  was  reasonable,  effectively  denied  her  an
opportunity to be heard on this issue.
          Stromstad sought attorneys fees pursuant to both Alaska
Rules of Civil Procedure 68 and 82.  The superior courts decision
to award fees to Stromstad was based, correctly, only on Rule 68.104
Nothing  in  the  text of Rule 68 (or Rule 82, for  that  matter)
specifically states that a prevailing party must itemize its fees
before  a court may award them.  Rule 68(b) simply states that  a
settlement  offeree  shall pay reasonable actual  attorneys  fees
incurred  by  the  offeror.  We have never  specifically  defined
reasonable actual attorneys fees, or the process by which a court
should determine what were reasonable actual fees.   But we  have
suggested that a prevailing party must itemize any requested fees
where  his or her opponent has made a specific cognizable request
for itemization.105  Marron argues that because her demand for  a
detailed  listing  of services in her Opposition  to  Motion  for
Attorneys  Fees  was  sufficiently specific and  cognizable,  the
superior  court  should not have awarded Stromstad  fees  without
itemization.106  We agree.
          As  Stromstad  notes,  we have stated  that  [w]e  will
reverse  an  award  of  attorneys  fees  only  if  the  award  is
arbitrary,  capricious, manifestly unreasonable,  or  stems  from
improper  motive. 107  But when a litigant fails  to  provide  an
itemized  explanation of fees, the trial court has  no  effective
means  of  determining whether the amount of  fees  requested  is
arbitrary or unreasonable108 and we are unable to review the trial
courts fee award for any abuse of discretion.  We therefore  hold
that,  where the rule authorizes reasonable actual fees, a  court
may  not award attorneys fees to a party who has not itemized his
or her requested fees, when the opposing party has requested such
itemization.   Accordingly, we reverse the superior courts  award
of  attorneys fees to Stromstad, and remand this part of the case
for further consideration.

V.   CONCLUSION
          Because  we  decline to apply Daubert to non-scientific
expert testimony, we AFFIRM the superior courts decision to allow
the  testimony of James Stirling and Dr. Rubenstein.  Because the
superior court did not abuse its discretion in denying the motion
to  compel  production of Dr. Rubensteins income tax returns,  in
refusing  to  strike  Dr. Whites testimony,  in  limiting  cross-
examination  of  Dr.  Rubenstein and  excluding  his  reports  of
previous patients, and in denying the motion for a new trial,  we
          AFFIRM the superior court in all of these respects.  Because
Stromstad was required to itemize his attorneys fees in  response
to Marrons request, we REMAND for a re-determination of attorneys
fees.
BRYNER, Chief Justice, concurring.
          Although I agree with the opinion in most respects  and
concur  in the result, I disagree with its discussion of  Daubert
and  Kumho Tire in Part IV.C.2.  Specifically, the opinion  seems
to  misunderstand how Daubert and Kumho would apply in this case.
In my view, the superior courts evidentiary rulings can easily be
sustained  as  correct applications of Daubert  and  Kumho.   The
opinions categorical refusal to extend these cases to experience-
based expert testimony is unnecessary, overbroad, and unsound.
          In  the  courts  view, Daubert and  Kumho  need  to  be
rejected  if  we  wish  to  sustain the  superior  courts  ruling
because, [u]nder federal law, the manner in which the trial court
admitted  the  testimony  of  Stirling  and  Dr.  Rubenstein  was
probably  erroneous,1 and its admissibility would  be  threatened
under  Kumho  Tire.2  But the court fails to provide any  support
for  this prediction or to engage in any case-specific discussion
of  what  Daubert  and Kumho would actually have  required.   The
court  instead  chooses to restrict Daubert  and  Kumho,  finding
Professor  Saltzburgs views on this issue especially  persuasive,
and   approvingly  quoting  selected  passages   from   arguments
expressed by the professor and two colleagues in an amicus  brief
they submitted in Kumho Tire.3
          But  while the amicus brief in Kumho opened by  broadly
questioning  the utility of extending Daubert to experience-based
expertise,4 its authors concentrated their main arguments on  the
extreme  view of Daubert advocated by the petitioners  in  Kumho.
The  amicus briefs authors viewed the petitioners as arguing that
Daubert  categorically extends its four-factor test to all  cases
involving  expert witnesses, including all cases  of  experience-
based expert testimony; that its four-factor test (including  the
requirement   of   objective  verification)  is   mandatory   and
exclusive;  and  that experience-based expert testimony  must  be
presumed  inadmissible unless its proponent can prove  compliance
with  the  Daubert test in a full Daubert hearing.   It  is  this
extreme  view  of  Daubert  that  Professor  Saltzburg  and   his
colleagues so adamantly challenged:
          But Daubert should not be extended to require
          the  exclusion of all opinions drawing on any
          aspect  of  scientific or technical knowledge
          that  in  some measure involves  the  use  of
          subjective  judgment  based  on  an   experts
          experience.   Such  an expansion  of  Daubert
          would be inconsistent with Rule 702s explicit
          acknowledgment of experience as a  basis  for
          expertise . . . .
          
               Nor is petitioners expansive reading  of
          Daubert grounded in reality.  In our everyday
          lives,   we  often  obtain  assistance   from
          persons   who,   because   of   their    past
          experience,  have specialized  knowledge  and
          are  able to reach reliable conclusions based
          on  that  experience.   When  such  a  person
          appears  in court as an expert, the pertinent
               question should be whether, in light of such
          past  experience,  his or  her  opinions  can
          assist  the  trier of fact  not whether  they
          have  been validated by the factors set forth
          in  Daubert  bearing on the  validity  of  an
          application  of  the scientific  method.   As
          Daubert  emphasized, the inquiry  under  Rule
          702 must be flexible.  No bright-line test is
          feasible,  because  the  circumstances  under
          which   an  experts  opinion  can  be  deemed
          reliable  depend  on the  specific  field  of
          expertise  in question, and on the particular
          issue in dispute.[5]
          
          As  the  underscored wording shows, the  amicus  briefs
basic  position  was  not  that Daubert  should  never  apply  to
experience-based  expert testimony, but that Daubert  should  not
always control, and automatically exclude, such testimony.
          In keeping with this position, the amicus brief devoted
most  of  its discussion to two practical points.  In  the  first
section  of discussion, it argued that Daubert should be  applied
flexibly through the exercise of case-by-case discretion by trial
courts, with the four Daubert factors being treated as permissive
and  non-exclusive.6  In the second part of the  discussion,  the
brief  addressed the need to clarify the procedures  required  by
Daubert, emphasizing the decision should be construed to  require
a  full  Daubert  hearing only if the court was  confronted  with
strong prima facie evidence of fundamentally flawed methodology.7
          In   unanimously  holding  that  Daubert   applies   to
experience-based  expert  testimony, the  United  States  Supreme
Courts  opinion in Kumho carefully addressed the  concerns raised
in  Professor Saltzburgs amicus brief; though ruling against  the
result  the petitioners favored, the Court favorably viewed  most
if not all of the specific points that the amici pressed.
          Kumho repeatedly emphasized that the Daubert test is  a
flexible  one and draws no bright-line requirements; the  opinion
stressed that Daubert vests trial courts with broad discretion to
use  or ignore its four-factor analysis, depending on whether the
court  finds it helpful in deciding the specific issue at  hand.8
Similarly,  the Court stressed that the four factors  articulated
in  Daubert  are  neither mandatory nor  exclusive,  and  can  be
supplemented  or  disregarded when  they  are  not  useful.9   In
addition,  Kumho  made it clear that a full  Daubert  hearing  is
needed  only  in  exceptional cases, when case-specific  evidence
raises a genuine issue as to basic reliability  that is, when the
[expert] testimonys factual basis, data, principles, methods,  or
their application are called sufficiently into question.10
          At  its  core, then, Kumho views Daubert as a flexible,
fact-specific,  and non-exclusive approach that  invites,  rather
than restricts, trial court discretion:
          The  conclusion, in our view, is that we  can
          neither rule out, nor rule in, for all  cases
          and  for  all time the applicability  of  the
          factors mentioned in Daubert, nor can we  now
          do  so  for  subsets of cases categorized  by
          category  of  expert or by kind of  evidence.
          Too   much   depends  upon   the   particular
          circumstances  of  the  particular  case   at
          issue.[11]
          
          This  flexible  and individualized reading  of  Daubert
answers almost every practical concern raised in the Kumho amicus
brief.  Of course, as todays opinion notes, Kumho did not end the
debate  over  Daubert; some commentators and a handful  of  cases
continue  to  criticize Daubert and Kumho.12  The opinion  quotes
conclusory passages from these critics but fails to examine their
conclusions  for  accuracy and merit; nor does  it  consider  the
contrary  views  advanced  by other authorities  concluding  that
these criticisms simply misunderstand Daubert and Kumho.13
          Given   the  flexible  nature  of  Kumhos  holding,   a
sufficient  answer to the Daubert questions raised here  is  that
the superior court properly applied the broad discretion given to
it by Kumho in declining to require objective verification of the
experience-based   testimony  offered   by   Stirling   and   Dr.
Rubenstein.   Both  witnesses had abundant  experience  in  long-
recognized,  widely practiced, and thoroughly vetted disciplines.
To  the  extent  that they proposed to testify on matters  beyond
their  particular  expertise,  the superior  court  appropriately
limited  the  scope  of  their testimony.   And  although  Marron
purported  to challenge their basic methodologies, her supporting
pleadings  suggested  only  that their  opinions  at  most  might
reflect incorrect applications of accepted principles in reliable
fields  of  specialized knowledge.  The superior court  correctly
recognized  this  kind of alleged inaccuracy  as  garden  variety
impeachment  for  cross-examination, so the  record  suggests  no
abuse  of  the broad range of trial court discretion  granted  by
Kumho.  I would dispose of this case on these narrower grounds.14
          Instead, todays opinion goes out of its way to disclaim
Kumhos  useful  elaboration  of  Daubert.   While  professing  to
constrain  its  ruling to the situation before  us,  the  opinion
expansively  describes  the situation as encompassing  all  cases
involving  the  admission of expert testimony  based  on  accrued
wisdom  and  personal experience.15  This category  could  easily
cover all expertise except pure theoretical science.  The breadth
of this ruling is especially striking because the main source the
opinion  cites  to  support  such a  categorical  restriction  on
Daubert  the Kumho amicus brief  repeatedly warned  as does Kumho
itself   against  attempts  to draw  categorical  lines  in  this
difficult area of the law.
          In  my  view,  the  opinions bright-line  rejection  of
Daubert  and  Kumho  is needless, and it is  sure  to  stir  more
trouble  than it settles.16  I thus concur in the result  reached
by  the opinion on the Daubert/Kumho issue but decline to join in
its unnecessary rationale.  I agree in all other aspects with the
opinion.

_______________________________
     1     Both parties agree that Stromstads vehicle had stopped
at a red light and then bumped the car ahead, in which Marron was
a passenger, when the light turned green.

     2     509 U.S. 579 (1993) (governing admissibility of expert
scientific testimony in federal courts).  Daubert and its progeny
will be discussed more fully infra in Part IV.C.

     3    974 P.2d 386, 394-95 (Alaska 1999).

     4     Civil  Rule  68 generally provides enhanced  attorneys
fees to a party that obtains a better result after trial than was
offered by or to that partys opponent.

     5     The  total  amount of fees awarded  to  Stromstad  was
$49,458.52.

     6     Fletcher  v.  S.  Peninsula Hosp., 71  P.3d  833,  844
(Alaska 2003).

     7     DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d  919,  922
(Alaska 2002).

     8    Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003).

     9    Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d
1093, 1097 (Alaska 2002).

     10     Kava v. Am. Honda Motor Co., Inc., 48 P.3d 1170, 1173
(Alaska 2002).

     11     Getchell, 65 P.3d at 53 (quoting Bierria v. Dickinson
Mfg. Co., Ltd., 36 P.3d 654, 656 (Alaska 2001)).

     12    Kava, 48 P.3d at 1173.

     13    Id.

     14     Cizek  v.  Concerned Citizens of Eagle River  Valley,
Inc., 71 P.3d 845, 848 (Alaska 2003).

     15    Id.

     16    Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).

     17     DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919,  928
(Alaska 2002).

     18    Id. at 925.

     19     Marron cites cases from a variety of other states  to
support her argument, particularly Elkins v. Sykens, 672  So.  2d
517 (Fla. 1996).  In Elkins, the intermediate appellate court had
held that a court may compel production of an expert witnesss tax
returns or other business records only under the most unusual  or
compelling circumstance.  Id. at 521.  The Florida Supreme  Court
affirmed,  rejecting  arguments for ordering  production  of  tax
records  similar  to Marrons arguments in this case.   The  court
noted  that  physician-experts  tax  records  only  emphasize  in
unnecessary detail that which would be apparent to a jury on  the
simplest  cross-examination.  It endorsed  a  reasonable  balance
between  a  partys  need  for information  concerning  an  expert
witnesss  potential bias and the witnesss right to be  free  from
burdensome and intrusive production requests.  Id. at 522.
          Courts in at least two other states have used a similar
balancing test, heavily weighted against forcing expert witnesses
to  produce  their income tax records.  See Ex Parte Morris,  530
So.  2d  785,  789 (Ala. 1988) (weighing liberal discovery  rules
against  the emerging qualified privilege disfavoring  disclosure
of  ones income tax records and finding any incremental value  of
information in such records substantially outweighed by prejudice
production  imposes  on  non-party over  non-controlling  issue);
Allen  v.  Super. Ct. of Contra Costa County, 198 Cal.  Rptr.  3d
737, 740-41 (Cal. App. 1984) (holding that when considering civil
rights  against abusive discovery and state constitutional  right
to  privacy,  court must carefully weigh privacy rights  of  non-
parties  against factors including the real needs of the litigant
who  seeks discovery, and court abuse[s] its discretion  when  it
fail[s]  to require a less intrusive method of discovery such  as
conducting a deposition without production of records).
          Contrary to Marrons assertion, Rowe v. State Farm,  670
So.  2d 718 (La. 1996), does not squarely resolve this issue,  or
support  the sweeping statement that 1099s are discoverable.   As
Stromstad  notes,  the  plaintiff  in  Rowe  apparently  had   no
opportunity  whatsoever  to  discover  evidence  of  an  opposing
experts bias prior to trial.  And as Marron herself explains, the
court  in Rowe found that without access to the financial records
of  an  opponents expert witness, the plaintiff w[as]  unable  to
prepare  for or offer any meaningful cross-examination to  refute
[the experts] claims of experience or want of prejudice.  In this
case  however,  Marron  managed to  depose  both  Rubenstein  and
Stirling,  and  to meaningfully cross-examine  both  of  them  to
expose their bias, all without access to their tax records.
          All  of the other cases cited by Marron reversed  trial
court  exclusions of evidence of expert witnesses bias at  trial,
but  did  not  grant  discovery of  witnesses  tax  or  financial
records.   Mitchell  v. Glimm, 819 So. 2d 548,  553  (Miss.  App.
2002)  (reversing bar on plaintiff introducing evidence that  ten
percent  of  income  of  opposing experts employer  derived  from
research  conducted  on  behalf of opponents  insurer);  Yoho  v.
Thompson,  548 S.E.2d 584, 585-86 (S.C. 2001) (allowing plaintiff
to  question  defense expert as to his extensive consulting  work
for defendant insurer); Lombard v. Rohrbaugh, 551 S.E.2d 349, 353
(Va.  2001)  (where general prohibition on mention  of  insurance
interferes   with   litigants  right  to  cross-examine   witness
concerning  interest  or bias, trial court  should  not  prohibit
proper cross-examination).  These cases are thus not at odds with
the  superior  courts  decision, which  expressly  permitted  the
introduction of evidence of the experts alleged bias at trial.

     20    71 P.3d 833 (Alaska 2003).

     21    959 P.2d 1247 (Alaska 1998).

     22     We  reject  Marrons contention that it  is  only  the
patient who may offer the treating physician as a non-expert, for
in  Miller it was the defendant who called the plaintiff/patients
treating physician as a non-expert witness.  Miller, 959 P.2d  at
1250.

     23    Glover v. Western Air Lines, Inc., 745 P.2d 1365, 1370
(Alaska 1987).

     24    See, e.g., Vent v. State, 67 P.3d 661, 670 (Alaska App.
2003).

     25    509 U.S. 579 (1993).

     26    State v. Coon, 974 P.2d 386, 388, 394-95 (Alaska 1999).

     27    See, e.g., Amorgianos v. Natl R.R. Passenger Corp., 303
F.3d 256, 264-70 (2d Cir. 2002) (affirming under Daubert district
courts  decision  to exclude treating physicians  testimony  that
exposure  to  paint solvent caused injury); Turner v.  Iowa  Fire
Equip.  Co.,  229  F.3d  1202, 1207  (8th  Cir.  2000)  (treating
physicians  opinion on causation subjected to same  standards  of
scientific  reliability that govern expert opinions of physicians
hired  solely  for  litigation).  Note  that  other  courts  have
refused  to apply Daubert in this fashion.  See, e.g., Rogers  v.
Secy of Health & Human Servs., 2000 WL 1337185, *4 (Fed.Cl. 2000)
(noting  that Third and Fourth Circuits admit treating physicians
testimony  under  Daubert  even when  unsupported  by  scientific
studies).

     28     Dekerlegand v. Wal-Mart Stores, 2000 WL  1772651,  *1
(E.D.  La. 2000) (citing Patel v. Gayes, 984 F.2d 214,  218  (7th
Cir. 1993) (holding doctor is not expert if testimony is based on
observations  during  course  of  treatment,  not  developed   in
anticipation of litigation, and based on personal knowledge)).

     29    Id.

     30    Miller ex rel. Miller v. Phillips, 959 P.2d 1247, 1250
(Alaska 1998).

     31    Ferrell v. Baxter, 484 P.2d 250, 267 (Alaska 1971).

     32    Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1034 (Alaska
2002).

     33    Id. at 1039.

     34     Id. (quoting Colt Indus. Op. Corp. v. Frank W. Murphy
Mfr.,  Inc.,  822  P.2d  925,  932 (Alaska  1991))  (emphasis  in
original).

     35    See supra at Part IV.B.2.

     36     974  P.2d  386 (Alaska 1999).  As we noted  in  Coon,
Daubert   requires  a  trial  court,  when  assessing  scientific
evidence,  to determine . . . whether the expert is proposing  to
testify  to  (1)  scientific knowledge that (2) will  assist  the
trier of fact to understand or determine a fact in issue.  Id. at
390  (quoting  Daubert, 509 U.S. at 592).   We  have  noted  that
[t]his  two-step  inquiry  requires a preliminary  assessment  of
whether the reasoning or methodology underlying the testimony  is
scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.  Coon, 974 P.2d at
390 (quoting Daubert, 509 U.S. at 592-93).  The Supreme Court has
provided  a  non-exclusive list of factors that can be considered
in   making  these  determinations,  including  (1)  whether  the
scientific  theory or technique has been empirically tested,  (2)
whether  it has been subject to peer review and publication,  (3)
whether  the  known  or potential error rate  of  the  theory  or
technique  is acceptable, and (4) whether the theory or technique
has attained general acceptance.  Daubert, 509 U.S. at 593-94.

     37    Coon, 974 P.2d at 390 (quoting Daubert, 509 U.S. at 592-
93).

     38    Id.

     39    Id. at 399 (emphasis added).

     40     The court did limit Dr. Rubensteins testimony in  one
respect:  Considering his lack of expertise in biomechanics,  the
court refused to allow Dr. Rubenstein to testify as to whether an
accident  at  a  particular speed could cause a certain  type  of
damage.

     41     Daubert,  509 U.S. at 590.  Our opinion  in  Coon  is
equally limited to scientific testimony.  Coon, 974 P.2d at 402.

     42    526 U.S. 137, 147 (1999).

     43     See supra n.36.  See also Ratliff v. State, 110  P.3d
982,  985  (Alaska  App. 2005) (What Kumho  Tire  requires  trial
judges  to  do  is  evaluate  whether  the  Daubert  factors  are
pertinent  to  assessing  the  methodological  validity  of   the
particular  challenged  evidence in  their  case.)  (emphasis  in
original);  Nelson v. Tennessee Gas Pipeline Co., 243  F.3d  244,
250 (6th Cir. 2001) (noting that Daubert requires trial judge  to
ensure that any and all scientific . . . evidence admitted is not
only relevant, but reliable.).

     44     We have, however, cited Kumho Tire approvingly on one
occasion to support a different point about the Daubert analysis.
Samaniego v. City of Kodiak, 80 P.3d 216, 220 & n.14, 15  (Alaska
2003) (citing Kumho Tires clarification that Daubert factors  are
flexible and not all-inclusive).

     45    Coon, 974 P.2d at 390.

     46     See,  e.g., id. at 391; Castillo v. E.I. Du  Pont  De
Nemours & Co., Inc., 854 So. 2d 1264, 1276 (Fla. 2003).

     47    Coon, 974 P.2d at 391.  We emphasized our reluctance to
be  bound  by  the  Supreme Courts conclusions by  the  following
summary of our holding in Coon:

          Thus,  expert opinion evidence is  admissible
          if  the trial court (exercising its authority
          under  Rule 104(a)) determines that  (1)  the
          evidence  is  relevant (Rule  401);  (2)  the
          witness  is  qualified  as  an  expert  (Rule
          702(a));  (3)  the  trier  of  fact  will  be
          assisted (Rule 702(a)); (4) the facts or data
          on  which the opinion is based are of a  type
          reasonably  relied  upon by  experts  in  the
          particular field in forming opinions upon the
          subject  (Rule  703); and (5)  the  probative
          value  of  the evidence is not outweighed  by
          its prejudicial effect (Rule 403).
          
Id. at 393.

     48    Id. at 391.

     49    Carter v. State, 766 N.E.2d 377, 381 (Ind. 2002).

     50    See, e.g., David Crump, The Trouble With Daubert-Kumho:
Reconsidering the Supreme Courts Philosophy of Science, 68 Mo. L.
Rev.  1, 11-14 (2003); John H. Mansfield, An Embarrassing Episode
in  the History of the Law of Evidence, 34 Seton Hall. L. Rev. 77
(2003) (the title of this article refers to Kumho Tire); Derek L.
Mogck,  Are We There Yet?: Refining the Test for Expert Testimony
Through Daubert, Kumho Tire and Proposed Federal Rule of Evidence
702,  33  Conn.  L. Rev. 303 (2000); Mark Lewis &  Mark  Kitrick,
Kumho  Tire Co. v. Carmichael: Blowout From the Overinflation  of
Daubert  v.  Merrell Dow Pharmaceuticals, 31 U. Tol. L.  Rev.  79
(1999);   Kimberly  M.  Hrabosky,  Kumho  Tire   v.   Carmichael:
Stretching Daubert Beyond Recognition, 8 Geo. Mason L.  Rev.  203
(1999).
          Among  the  most  prominent  critics  of  the  approach
adopted  by the Supreme Court was Professor Stephen A. Saltzburg,
one  of  the authors of the Kumho Tire  respondents amicus brief.
Brief   of   Amicus   Curiae  Margaret  A.  Berger,   Edward   J.
Imwinkelried, & Stephen A. Saltzburg, 1998 WL 739321, Kumho  Tire
Co.  v. Carmichael, 526 U.S. 137 (1999) (No. 97-1709).  See  also
Stephen  A.  Saltzburg, Questioning the Judicial Role in  Dealing
With  Expert Testimony in Complex and Non-Complex Cases, 3 Sedona
Conf.  J. 185 (2002).  Professor Saltzburg was Reporter  for  the
Rules of Evidence, Advisory Committee on the Rules of Evidence to
the  Supreme  Court of Alaska, see Introduction to Commentary  to
Alaska Rules of Evidence, and thus one of the main architects  of
the  Alaska Rules of Evidence and the Commentary to Alaska  Rules
of  Evidence.   His critiques of Kumho Tire are  thus  especially
persuasive.

     51    Daubert, 509 U.S. at 588, 589.

     52    Id. at 588 (internal citations omitted).

     53     Widmyer  v. Southeast Skyways, Inc., 584  P.2d  1,  8
(Alaska 1978).

     54    Coon, 974 P.2d at 390, 391, 394-96.

     55    See, e.g., Mogck, supra n.50, at 321.

     56     Id. at 322 (quoting Marilee M. Kaspa & Carl B. Meyer,
Scientific  Experts:  Making Their Testimony  More  Reliable,  35
Cal. W. L. Rev. 313, 319 (1999)).

     57    Stephen A. Saltzburg, Questioning the Judicial Role in
Dealing With Expert Testimony in Complex and Non-Complex Cases, 3
Sedona Conf. J. 185, 185 (2002).

     58     Mogck,  supra  n.50,  at 315-18  (internal  citations
omitted).

     59     See  Logerquist v. McVey, 1 P.3d 113,  125-30  (Ariz.
2000)  (holding that [t]he result reached in Kumho .  .  .  would
seem   directly   opposed   to  the  principle   of   liberalized
admissibility  that  engendered  the  abolition  of   Frye,   and
approaches  a  reduction or obliteration of the  jury  function);
Gilkey v. Schweitzer, 983 P.2d 869, 871 (Mont. 1999) (The Daubert
test  should only be used to determine the admissibility of novel
scientific evidence) (internal citations omitted); Watson v. Inco
Alloys  Intl,  Inc.,  545  S.E.2d  294,  301  n.11  (W.Va.  2001)
(declining to extend Daubert by Kumho Tire).

     60    Daubert, 509 U.S. at 590 (internal citations omitted).

     61    Id. (internal citations omitted, emphasis in original).

     62    Kumho Tire, 526 U.S. at 146.

     63     Edward J. Imwinkelried, The Next Step After  Daubert:
Developing  a Similarly Epistemological Approach to Ensuring  the
Reliability of Nonscientific Expert Testimony, 15 Cardozo L. Rev.
2271, 2285 (1994).

     64     Brief of Amicus Curiae Margaret A. Berger, Edward  J.
Imwinkelried, & Stephen A. Saltzburg, 1998 WL 739321 at *2, Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999) (No. 97-1709).

     65    Id.

     66    Id. at *5.

     67    Id. at *5-6.

     68    Id. at *2.

     69    Id. at *11.

     70    Id. at *13.

     71    Id.

     72    Daubert, 509 U.S. at 595.

     73    Federal R. Evid. 702; Alaska R. Evid. 702.

     74    Id.

     75    Federal R. Evid. 703; Alaska R. Evid. 703.

     76    Federal R. Evid. 706; Alaska R. Evid. 706.

     77    Federal R. Evid. 403; Alaska R. Evid. 403.

     78    Daubert, 509 U.S. at 596.

     79     Id.   Marron had ample material with which she  might
have  discredited  Dr. Rubenstein and Stirling through  effective
cross-examination.    Marron   put   forth   numerous   arguments
challenging the relative value of the studies and reports  relied
on  by  Dr.  Rubenstein.   Additionally, Dr.  Rubenstein  himself
admitted   at  trial  that  he  had  not  performed  a   complete
neurological examination of Marron.  Stirling did not  personally
inspect  Marrons  or Stromstads vehicle, and  based  his  opinion
entirely  on  photographs.  Stirling also admitted  that  he  was
unsure of the weight of the vehicles, or whether Marrons car  was
stopped or moving when it was struck.

     80    456 P.2d 453 (Alaska 1969).

     81    Id. at 457-58.

     82    Id. at 458.

     83    See, e.g., INA Life Ins. Co. v. Brundlin, 533 P.2d 236,
244  (Alaska 1975) (though medical expert speculated as to  exact
cause  of  cardiac arrest and freely admitted he had no  data  on
which to base an opinion, his conclusion that cardiac arrest  was
surgery-related  was  not speculative; conclusion  was  based  on
statistical  unlikelihood of cardiac arrest and fact  that  known
potential causes were mainly surgery-related).

     84     See, e.g., Sirotiak v. H.C. Price Co., 758 P.2d  1271
(Alaska 1988).

     85    770 A.2d 36 (Del. 2001).

     86    Id. at 38.

     87    Id.

     88    Id. at 38, 40, 43.

     89    See, e.g., Mason v. Lynch, 822 A.2d 1281, 1284-85 (Md.
App.  2003)  (holding that trial court in low-speed  impact  case
acted  within  its discretion in admitting photographic  evidence
without  expert testimony); Spedick v. Murphy, 630 A.2d 355,  364
(N.J. Super. App. Div. 1993) (same).

     90     Because we have determined that the admission of  Dr.
Rubensteins testimony was proper (see supra Part IV.D),  we  need
not address this portion of Marrons argument.

     91     Poulin  v. Zartman, 542 P.2d 251, 261 (Alaska  1975),
disavowed on other grounds by State v. Alex, 646 P.2d 203 (Alaska
1982).

     92    See supra Part III.

     93     Kava v. Am. Honda Motor Co., Inc., 48 P.3d 1170, 1173
(Alaska  2002);  Trobough v. French, 803 P.2d  384,  385  (Alaska
1990).

     94     Alaska Childrens Servs., Inc. v. Smart, 677 P.2d 899,
901 (Alaska 1984).

     95    Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003).

     96     See,  e.g.,  Peters v. Benson, 425 P.2d  149  (Alaska
1967).

     97     See  Marsingill  v. OMalley, 58 P.3d  495,  505  n.27
(Alaska  2002) (suggesting in dictum that comment during  closing
argument   that  plaintiff  is  asking  you  to  basically   take
everything hes worked for his whole life might readily have  been
understood  as  an  improper suggestion that a judgment  awarding
damages  against  [the defendant] would not  be  covered  by  his
insurance).

     98    Peters, 425 P.2d at 153.

     99    Id.

     100     Marron retorts that [s]topping to exchange insurance
information  is  not  direct evidence of liability  insurance.  A
common-sense  reading  of  exchange in this  context  necessarily
involves  mutuality, but Marron suggests that this could  instead
imply  that  only she was covered.  Marron opted  not  to  cross-
examine  Stromstad  as to the meaning of his  assertion.   Marron
essentially argues that the jury interpreted Stromstads ambiguous
request  not to pay as indicating a lack of insurance,  but  then
refused to interpret his obvious statement we exchanged insurance
information  as  indicating that he was  covered.   The  superior
court  did  not  abuse its discretion in ignoring  this  specious
argument.

     101     State Farm Mut. Auto. Ins. Co. v. Weiford, 831  P.2d
1264, 1269-70 (Alaska 1992).

     102    As noted supra in Part II, the superior court awarded
Stromstad  seventy-five percent of two-thirds  of  his  requested
attorneys fees.

     103     Stromstad  argues  that he  submitted  a  seven-page
affidavit  itemizing  reasonable  and  necessary  attorney   fees
incurred.   We agree with the superior court that this  affidavit
generally described the subject matter and litigation events that
generated fees, but there was no itemization of the hours of work
that led to the fees.

     104     Rule 68(b) applies where, as here, a party makes  an
offer of judgment prior to trial, the offer is rejected, and then
the judgment following trial is at least 5 percent less favorable
to  the  offeree than the offer.  Rule 68(c) states that a  party
awarded  fees under Rule 68 may not also recover fees under  Rule
82.

     105    Koller v. Reft, 71 P.3d 800, 810 (Alaska 2003) (citing
Luedtke  v.  Nabors Alaska Drilling, Inc., 768  P.2d  1123,  1138
(Alaska  1989)).  Unsurprisingly, Stromstad insists that his  fee
award  was  in  fact reasonable.  But a litigants  self-servingly
conclusory statements, such as Stromstads comments that  his  fee
award  was  manifestly reasonable and even extremely generous  to
Marron, do not suffice to fulfill this itemization requirement.

     106     While  Marrons argument before this  court  and  the
superior court was incorrectly based on Rule 82 instead  of  Rule
68,  we hold that the itemization requirement applies equally  to
fee  awards  pursuant  to  either rule  when  the  award  is  for
reasonable  actual attorneys fees.  Marrons mistake is  excusable
in  light of the fact that Stromstad also relied on Rule 82, both
before the superior court and on appeal.

     107    Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 305
(Alaska  2000)  (quoting  Jones v. Jones,  925  P.2d  1339,  1340
(Alaska 1996)).

     108     Federal  courts  have held  similarly.   See,  e.g.,
Naporano  Iron & Metal Co. v. U.S., 825 F.2d 403, 404 (Fed.  Cir.
1987)  (absent  itemized  statement,  the  court  is  unable   to
determine  whether the hours, fees and expenses,  are  reasonable
for any individual item).

1    Slip Op. at 19.

     2    Id. at 26.

     3     Id.  at  22 n.50, 25-26.  The amicus brief  was  filed
jointly  by  three  law school professors:  Margaret  A.  Berger,
Edward  J. Imwinkelried, and Stephen A. Saltzburg.  See  1998  WL
739321 (U.S.).

     4    Kumho, Amicus Brief at 2.

5    Kumho, Amicus Brief at *2-3 (emphasis added).

     6     See,  e.g.,  id. at *18-19 (emphasis added)  (internal
footnotes omitted):

          Our  point is there is an enormous  range  of
          scientific  and  technical  fields  in  which
          experts  apply their own personal  experience
          and  that  of  their colleagues in  assessing
          case-specific facts, and reaching a  somewhat
          subjective   conclusion.   Rule   702   still
          requires  the  trial court to determine  that
          the witness specialized knowledge will assist
          the  trier  of  fact.   But  experience-based
          knowledge   should   not   be   automatically
          inadmissible because it cannot be verified by
          an  objective test.  The Eleventh Circuit was
          correct  in ruling that such testimony  falls
          outside the scope of Daubert, at least in the
          sense  that its admissibility should  not  be
          gauged  solely in terms of the  four  factors
          mentioned in Daubert.
          
     7    See, e.g., id. at *24:

          Common sense suggests that if an opponent has
          produced  not  a  single expert  prepared  to
          testify  that  the testimony of the  targeted
          expert   is   methodologically  flawed,   the
          district  court  should not  be  required  to
          engage in Rule 104(a) factfinding, and should
          be permitted to deny the motion outright. . .
          .
          
               Where an opponent does file a motion  in
          limine,  supported by proper record materials
          demonstrating one or more flaws  that  appear
          to  undermine the reliability of the targeted
          experts  testimony,  then  a  district  court
          should  act  with equal dispatch in  granting
          the   motion   unless  the  proponent   comes
          forward[.]
          
     8    Kumho, 526 U.S. at 149-50.

     9    Id. at 150.

     10   Id. at 149.

     11   Id. at 150.

     12   Slip Op. at 22 n.50.

     13    Cf. Watson v. INCO Alloys Intl, Inc., 545 S.E.2d  294,
301  n.11  (W.Va.  2001) (asserting that it  is  the  restrictive
interpretation of Kumho anticipated by some commentators that  is
causing confusion (emphasis added)).

     14    Notably,  as  a justification for departing  from  the
trial  courts  more conventional rationale for its ruling,  which
accepted  Daubert  and  Kumho  as  applicable  law,  the  opinion
approvingly  cites  commentator Derek Mogck for  the  proposition
that   Dauberts  requirements can also  be  easily  exploited  by
litigants, leading to mini-trials, a prolonged discovery process,
and prohibitive costs to both parties and the court.  Slip Op. at
23  &  n.58 (citing Derek L. Mogck, Are We There Yet?: Redefining
the  Test  for Expert Testimony Through Daubert, Kuhmo  Tire  and
Proposed Federal Rule of Evidence 702, 33 Conn L. Rev. 303,  315-
18).  Yet  one  would be hard pressed to find  support  for  this
proposition  in  Judge Morses ruling here, which  easily  avoided
being  exploited:  The judge properly recognized that no  lengthy
Daubert/Kumho hearing was required on the issue; and he correctly
parsed  the admissible portions of the expert testimony from  the
excludable ones without conducting a mini-trial on admissibility.

     15   Slip Op. at 28.

     16    The  opinion suggests that, as applied to  experience-
based   testimony,  Dauberts  gatekeeping  approach  is  needless
because  other  evidence  rules,  including  rules  dealing  with
admission  of  non-expert testimony, are  sufficient  to  protect
against  inadmissible expert testimony.  Slip Op. at 27-28.   But
in contrast to fact witnesses, experts testify without any first-
hand  knowledge of a specific case.  To do so, they must  satisfy
the  trial  court, as a threshold matter, that they are qualified
to  give  expert opinions and that the expertise they offer  will
assist the trier of fact.  Alaska R. Evid.  702(a).  Because  the
court  screens  and accepts experts according to  these  criteria
before  allowing  them to state their opinions, jurors  naturally
see experts as special witnesses who testify with the courts seal
of approval, both as to their qualifications and their ability to
be  of  assistance.   These  unique  attributes  counsel  against
treating  expert  and lay witnesses alike and put  a  premium  on
ensuring  that courts get it right when they approve  experts  as
qualified  and  capable  of assisting the  jury.   Regardless  of
whether  the experts testimony purports to draw on experience  or
scientific  training, how can a court go about  deciding  if  the
testimony   can  actually  assist  the  trier  of  fact,   Alaska
Evidence  Rule 702, or if its probative value will  outweigh  its
prejudicial impact, Alaska Evidence Rule 403, if the basis of the
experts opinion falls outside the common experience of the  court
and  the  jury  and cannot be explained in understandable  terms?
Contrary  to  the  Kumho  amicus briefs  suggestions,  Rule  703s
general  acceptance  test  by itself  is  hardly  a  satisfactory
standard in these situations, since it enables any circle of self-
proclaimed  experts  to establish its own  reliability  by  self-
referentially declaring its expertise to be of a type  reasonably
relied upon by experts in the particular field.  Slip Op.  at  27
(quoting Alaska R. Evid. 703).