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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gilbert v. Sperbeck (12/09/2005) sp-5964

Gilbert v. Sperbeck (12/09/2005) sp-5964

     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


LOIS GILBERT, )
) Supreme Court No. S- 10842
Appellant, )
) Superior Court No. 3AN-01-07077 CI
v. )
) O P I N I O N
DAVID SPERBECK, Ph.D, )
) [No. 5964 - December 9, 2005]
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:    Lois   Gilbert,    pro    se,
          Anchorage.   Brian  M.  Doherty,  Gilmore   &
          Doherty, Anchorage, for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          After  Lois  Gilbert  arbitrated  a  dispute  with  her
insurer, State Farm Insurance Company, she sued the psychologist,
Dr. David Sperbeck, who examined her for State Farm and testified
as  its  expert witness in the arbitration.  We hold that witness
immunity bars Gilberts fraud and misrepresentation claims against
Dr.  Sperbeck and that the Americans with Disabilities Act1 (ADA)
does  not provide for the relief she seeks.  We therefore  affirm
the summary judgment entered against her in the superior court.
II.  FACTS AND PROCEEDINGS
          Lois   Gilberts   automobile  was  rear-ended   in   an
unwitnessed  hit-and-run vehicular accident  in  1994.   She  was
          diagnosed with whiplash on the basis of her representations and
filed an uninsured motorist claim with her motor vehicle insurer,
State  Farm  Insurance  Company.   Her  claim  was  submitted  to
arbitration per the insurance contract.  State Farm retained  Dr.
David   Sperbeck,  a  clinical  psychologist,   to   perform   an
independent  psychological examination (IPE) of  Gilbert  and  to
serve as an expert witness in the arbitration.
          Dr.    Sperbeck   administered   several   computerized
psychological  tests  to  Gilbert and conducted  a  psychological
interview.   The tests and interview were administered  over  two
days.   During the first day of testing, Gilbert complained  that
the  chair provided by Dr. Sperbeck was insufficiently supportive
and  caused pain to her back.  Gilbert rescheduled the second day
of testing due to this back pain.
          In  his  deposition in the arbitration proceeding,  Dr.
Sperbeck  testified  that  he believed that  Gilbert  experienced
actual pain relating to the 1994 accident, but that a personality
disorder  complicated the pain and caused Gilbert to  over-report
symptoms.  He concluded that while Gilbert did not have  a  major
psychiatric  disorder,  she  did have  a  histrionic  personality
disorder with narcissistic features that causes her to exaggerate
and  magnify the degree . . . of pain that shes in and to magnify
the degree of disability that she has.
          The arbitrator found that no trauma resulting in injury
had occurred in the 1994 accident.  He noted in his decision that
there  was no independent and objective evidence linking  any  of
Gilberts physical problems to the 1994 accident.  He also  stated
that  issues of credibility were central to the dispute, and that
he  felt  compelled to resolve them against Gilbert, who was  the
only live witness.
          Gilbert  then filed this lawsuit against Dr.  Sperbeck,
alleging  that  he  mis-characterized her to the  arbitrator  and
conducted  a  fraudulent IPE.   Gilbert  also  claimed  that  Dr.
Sperbeck violated the ADA and analogous state and local  laws  by
failing  to  provide  her with an appropriate  chair  during  the
evaluation.   Her  complaint sought an  award  of  damages.   The
superior  court granted Dr. Sperbecks motion for summary judgment
on all counts.  Gilbert appeals.
III. DISCUSSION
     A.   Standard of Review
          We review grants of summary judgment de novo.2  Summary
judgment is appropriate where there is no genuine issue as to any
material  fact and . . . any party is entitled to judgment  as  a
matter of law. 3  We draw all factual inferences in favor of, and
view the facts in the light most favorable to, the non-prevailing
party (generally the non-movant).4  We review questions of law de
novo  and adopt the rule of law that is most persuasive in  light
of precedent, policy, and reason.5
     B.   Gilberts  Claims  of  Fraud and  Misrepresentation  Are
          Barred by Witness Immunity.
          
          Gilbert   alleges   that  Dr.  Sperbeck   conducted   a
fraudulent  examination and that he minimized  her  injuries  and
mischaracterized her mental state in his deposition.  She alleges
          that the arbitrator relied on Dr. Sperbecks deposition in
resolving  issues of credibility and in ultimately  deciding  for
State  Farm, and that this decision deprived her of the insurance
coverage to which she was entitled.
          In   Lythgoe  v.  Guinn  we  held  that  quasi-judicial
immunity  barred  a  lawsuit  against  a  court-appointed  expert
witness.6  Dr. Guinn, a psychologist, was appointed in that  case
to  act  as  an independent custody investigator and  to  make  a
custody recommendation to the court.7  Dr. Guinn served as an arm
of  the  court and performed a function integral to the  judicial
process.  8   The  mother,  a  party to  the  underlying  custody
dispute, sued Dr. Guinn, alleging negligent and intentional torts
during  her  investigation  and in  preparing  her  report.9   We
concluded  that  [c]aselaw  and  policy  considerations   clearly
support the granting of absolute quasi-judicial immunity  to  Dr.
Guinn as a court-appointed psychologist.10
          Dr.  Sperbeck  was  hired by a  party  to  the  private
arbitration and did not serve in a role analogous to  an  arm  of
the  court.11   We  therefore look to the principles  of  witness
immunity,  rather  than  quasi-judicial  immunity,  to  determine
whether  Dr. Sperbeck is immune from liability for his  testimony
in the arbitration.
          Testimony in a judicial proceeding, if pertinent to the
matter  under  inquiry, is absolutely privileged, even  if  given
maliciously or with knowledge of its falsity.12  Even  defamatory
testimony  is  privileged,  and  the  witness  granted  immunity,
because  of the public policy rationale that the privilege  leads
to  more  just trials by (1) encouraging more witnesses  to  come
forward  and  (2) ensuring that witnesses will be more  open  and
honest in testifying.13
          Gilbert  argues that witness immunity applies  only  to
factual,  not  expert,  witnesses.  But  expert  testimony  often
provides essential help to the finder of fact.14  In holding that
witness   immunity   barred  fraudulent   misrepresentation   and
defamation claims against an opposing expert witness,  a  federal
district   court  stated  that  [t]he  overriding   concern   for
disclosure  of  pertinent and instructive expert opinions  before
and  during  medical malpractice actions is no  less  significant
than   the  clearly-recognized  need  for  all  relevant  factual
evidence during the course of litigation.15
          Gilbert  argues that the truth-encouraging purposes  of
witness immunity are not furthered by granting immunity to expert
witnesses  and  suggests that additional  deterrents  from  false
testimony  are necessary because expert witnesses are paid.   But
we   regard   the   traditional  safeguards  against   untruthful
testimony, including the oath or affirmation, the perils of cross-
examination,  and  the  threat of perjury  prosecution  or  other
sanctions, as sufficient deterrents.16
          The  same  considerations that underlie the application
of  witness  immunity in court proceedings also justify  applying
the doctrine of witness immunity to the expert testimony given by
Dr.  Sperbeck  in  the  arbitration  matter.   As  with  judicial
proceedings, fair and just arbitrations depend on the willingness
of  witnesses  to present relevant evidence in a  candid  manner.
          Furthermore, Alaska favors arbitration;17 this policy would be
hampered  if arbitration witnesses were not immune from  suit  to
the  same  extent as litigation witnesses.18  We  assume  without
deciding  here  that  Dr.  Sperbeck was  potentially  subject  to
prosecution  had  he  perjured  himself  during  his  arbitration
deposition;19  he  swore  an  oath  and  was  subject  to  cross-
examination.  And as a licensed psychologist, he was  subject  to
professional  discipline.20  In the context  of  the  adversarial
arbitration   setting,   we  regard  these   deterrents   against
untruthful  testimony  by an expert witness  as  sufficient.   We
therefore  hold  that witness immunity bars  Gilberts  claims  of
fraud and misrepresentation against Dr. Sperbeck.21
     C.   Gilbert May Not Receive Damages Under the ADA.
          Gilbert argues that the Americans With Disabilities Act
required Dr. Sperbeck to make a reasonable accommodation for  her
disability.22  Gilbert argues that Dr. Sperbeck violated the  ADA
by failing to provide her with a suitably supportive chair during
the psychological examination and interview.  She claims that Dr.
Sperbecks alleged violation entitles her to damages.
          Normally one of the first steps in considering  an  ADA
claim  is determining whether the ADA applies to the defendant.23
But  there  is  no  reason in this case to consider  whether  Dr.
Sperbecks  office  is  a place of public accommodation  to  which
Title  III of the ADA applies,24 because the only relief  Gilbert
seeks,  damages, is not available to her in this case  under  the
ADA.   Title III adopts the remedial scheme set out in the  Civil
Rights  Act  of  1964 at 42 U.S.C.  2000a-3.25   That  subsection
provides for injunctive relief, but not monetary damages.26  Title
III of the ADA provides for monetary damages only when the United
States  Attorney  General requests them.27   Because  the  United
States Attorney General has not requested monetary damages  here,
Gilbert  cannot recover monetary damages from Dr. Sperbeck  under
the  ADA.28   Gilbert has not asked for injunctive  relief.   The
superior court therefore did not err in granting summary judgment
on Gilberts ADA claim.
     D.    Gilbert  Has  Waived Her Claim for  Damages  Under  AS
18.80.230.
          Gilberts  complaint  also  alleged  that  Dr.  Sperbeck
violated  Alaska law prohibiting discrimination on the  basis  of
disability.   Alaska Statute 18.80.230(a) makes it  unlawful  for
the  owner,  lessee,  manager, agent, or  employee  of  a  public
accommodation (1) to refuse, withhold from, or deny to  a  person
any of its services, goods, facilities, advantages, or privileges
because of . . . physical or mental disability.
          Unlike the remedial scheme of Title III of the ADA,  AS
22.10.020(i) permits recovery of monetary damages for  violations
of  AS  18.80.230.    Although we have  held  that  AS  18.80.220
imposes a duty on employers to make reasonable accommodations for
disabled  employees,29  we have not had occasion  to  decide  the
question  whether  AS 18.80.230(a) imposes an analogous  duty  on
public  accommodation or whether an office such as Dr.  Sperbecks
is  a  public  accommodation  as  that  term  is  defined  in  AS
18.80.300(14).30
          It  is unnecessary for us to consider these issues here
          because Gilbert has waived any possible claim she had under AS
18.80.230(a).  When considering whether a claim has been  waived,
[w]e  judge  a  pro se litigants performance by a less  demanding
standard  than we use when evaluating an attorneys performance.31
Nonetheless, even when a pro se litigant is involved, an argument
is  considered waived when the party cites no authority and fails
to provide a legal theory for his or her argument.32
          In  Peterson  v.  Ek we held that a  pro  se  litigants
briefing  was  adequate to avoid waiver of his claims  on  appeal
because,  [a]lthough [the appellant] often failed to  cite  legal
authority to support his arguments, his briefing was such that we
could  discern his legal arguments and [the appellee] could reply
to  them.33   Gilberts initial briefing to this court  quoted  AS
18.80.200, which contains the statement of purpose of the  Alaska
Human  Rights Act (AHRA).  But Gilbert has advanced  no  argument
that AS 18.80.230(a) applies to Dr. Sperbeck on a theory that his
office  is  a  public  accommodation or that  subsection  .230(a)
imposed a duty of reasonable accommodation on him.
          Furthermore,   in   her   initial   briefing   Gilberts
discussion of Dr. Sperbecks alleged failure to provide a suitable
chair referred solely to the ADA.  Her initial brief in referring
to  AS 18.80.200 advanced a theory of liability unrelated to  Dr.
Sperbecks alleged failure to provide a suitable chair in which to
take the examination.34
          After hearing oral argument, we invited the parties  to
submit   supplemental  briefs.   Although  Gilberts  supplemental
brief,  filed  after  Dr. Sperbecks supplemental  brief  per  our
briefing  order,  seems to suggest that the  alleged  failure  to
provide  an adequate chair violated AS 18.80.230(a), her  initial
brief  said  nothing  about such a theory.  Gilberts  failure  to
raise  this  theory  in her initial brief gave  Dr.  Sperbeck  no
notice  that  his original or supplemental briefs should  address
the  topic.  Dr. Sperbeck had no opportunity to respond  to  this
argument.35 Moreover, Gilberts discussion of the AHRA is so terse
and superficial that, even under the lenient standards for pro se
litigants,  it  fails  to preserve her AS 18.80.230(a)  claim  on
appeal.   We  therefore  hold  that Gilbert  has  waived  her  AS
18.80.230(a) claim.
          Gilbert also alleged in her complaint that Dr. Sperbeck
violated  municipal  . . . law by failing to  provide  reasonable
accommodation for her disability.  She does not contend on appeal
that  Dr.  Sperbeck violated municipal law or that municipal  law
precluded  entry  of  summary  judgment  for  Dr.  Sperbeck.   We
therefore hold that Gilbert has waived this claim as well.
IV.  CONCLUSION
          For the foregoing reasons, the judgment of the superior
court is AFFIRMED.
_______________________________
     1    42 U.S.C.  12101 et seq. (1990).

     2    Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).

     3     West  v.  Umialik Ins. Co., 8 P.3d 1135, 1137  (Alaska
2000) (citing Alaska R. Civ. P. 56(c)).

     4    Rockstad, 113 P.3d at 1219.

     5    Anderson v. State, 78 P.3d 710, 713 (Alaska 2003).

     6    Lythgoe v. Guinn, 884 P.2d 1085, 1088-89 (Alaska 1994).

     7    Id. at 1086.

     8     Id.  at 1088 (quoting Seibel v. Kemble, 631 P.2d  173,
179 (Haw. 1981)).

     9    Id. at 1086.

     10    Id. at 1093.

     11     Cf.  Karen L. v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., 953 P.2d 871, 878-79 (Alaska 1998)
(extending absolute quasi-judicial immunity to doctors  initially
selected  by  DFYS and subsequently approved by  the  court  when
doctors  were integral part of the judicial process and observing
that  to deny immunity would disserve the broader public interest
that   non-judicial  officers  act  without  fear  of  liability)
(quoting in part Lythgoe, 884 P.2d at 1088).

     12     Cf. Nizinski v. Currington, 517 P.2d 754, 756 (Alaska
1974)  (applying witness immunity to arbitrator sued for  alleged
libelous  statements  in  affidavit  detailing  reasons  for  his
decision in underlying case).

     13     Lawson  v.  Helmer, 77 P.3d 724,  727  (Alaska  2003)
(applying  witness immunity to testimony given by  lay  witnesses
sued for alleged defamation in child custody and protective order
proceedings).

     14    See Alaska R. Evid. 702(a).

     15     Kahn  v.  Burman, 673 F. Supp. 210, 213  (E.D.  Mich.
1987).

     16    See Alaska R. Evid. 603; Lawson, 77 P.3d at 727 (noting
threat  of  other  sanctions); see also Bruce v. Byrne-Stevens  &
Assocs.  Engrs,  Inc., 776 P.2d 666, 667 (Wash.  1989)  (applying
witness  immunity to expert engineer sued by party  who  retained
him).

     17    AS 09.43.010(a) provides that [a] written agreement to
submit an existing controversy to arbitration or a provision in a
written   contract   to  submit  to  arbitration   a   subsequent
controversy  between  the  parties  is  valid,  enforceable,  and
irrevocable, except upon grounds that exist at law or  in  equity
for the revocation of a contract.

          Alaska initially adopted the Uniform Arbitration Act in
1968.   See  ch. 232,  1, SLA 1968.  Alaska adopted  the  Revised
Uniform  Arbitration  Act  in  2004.   See  ch.  170,  SLA  2004.
Arbitration awards are subject to only limited review  by  courts
in  Alaska.  See AS 09.43.500(a) (2004).  [A]rbitration and award
is  an affirmative defense to a civil lawsuit.  Alaska R. Civ. P.
8(c).   We  have  previously held that  we  prefer  to  encourage
arbitration  as  a  rapid  and  inexpensive  means  of  resolving
disputes.  Bd.  of Ed., Fairbanks N. Star Borough Sch.  Dist.  v.
Ewig, 609 P.2d 10, 13 (Alaska 1980).

     18    Cf. AS 09.43.410 (providing that arbitrators are immune
from civil liability to the same extent as a judge of a court  of
this  state acting in a judicial capacity).  AS 09.43.410  became
effective January 1, 2005.  Ch. 170,  12, SLA 2004.

     19     Cf.  AS 11.56.200(a) (A person commits the  crime  of
perjury  if  the person makes a false sworn statement  which  the
person does not believe to be true.).

     20    See AS 08.86.130(a) (listing requirements for licensing
of  psychologists);  AS  08.86.204(a)(5)  (providing  that  state
licensing  board may impose a disciplinary sanction if  it  finds
that  the  licensee  .  .  . (2) engaged  in  deceit,  fraud,  or
intentional   misrepresentation  in  the  course   of   providing
professional services or engaging in professional activities).

     21     Our holding makes it unnecessary to consider Gilberts
claims  that the superior court erred by (1) declining to require
that  Dr.  Sperbeck produce testing data, questions, and Gilberts
answers,  and (2) holding that a videotape showing an episode  of
Dateline NBC was inadmissible as evidence.

     22     As used in the ADA, [t]he term disability means, with
respect  to  an  individual  (A) a physical or mental  impairment
that   substantially  limits  one  or  more  of  the  major  life
activities  of  such  individual;  (B)  a  record  of   such   an
impairment;  or (C) being regarded as having such an  impairment.
42 U.S.C.  12102(2).  Gilbert claims that several neck, back, and
shoulder  injuries  and  orthopedic  problems  prevent  her  from
walking for extended periods of time and sleeping.  We assume for
the  purposes  of  this  decision that  these  physical  problems
constitute a disability as defined by the ADA.

     23     See, e.g., Parr v. L & L Drive-Inn Rest., 96 F. Supp.
2d 1065, 1085 (D. Haw. 2000) (In order to set forth a prima facie
case under Title III of the ADA, a plaintiff must prove that: (1)
he  has  a  disability; (2) defendants [business] is a  place  of
public  accommodation;  (3)  and he was  denied  full  and  equal
treatment  because of his disability.) (citing  Mayberry  v.  Von
Valtier, 843 F. Supp. 1160, 1166 (E.D. Mich. 1994)).

     24     Gilberts claim could only be valid under Title III of
the  ADA.   Title  I  of  the  ADA  prohibits  discrimination  in
employment.   See  42  U.S.C.   12112(a).   Title  II   prohibits
discrimination  in  the provision of public  services  by  public
entities.   See 42 U.S.C.  12132.  Dr. Sperbeck was not  Gilberts
employer, nor was he engaged in the provision of public services.

     25    See 42 U.S.C.  12188(a)(1).

     26     42  U.S.C.  2000a-3(a) (providing that a civil action
for  preventive relief, including an application for a  permanent
or  temporary injunction, restraining order, or other order,  may
be instituted by the person aggrieved).

     27    42 U.S.C.  12188(b)(2)(B).

     28     See, e.g., Cole v. National Collegiate Athletic Assn,
120 F. Supp. 2d 1060, 1067 (N.D. Ga. 2000).

     29    Moody-Herrera v. State, Dept of Natural Res., 967 P.2d
79, 87 (Alaska 1998).

     30    AS 18.80.300(14) states that

          public  accommodation  means  a  place   that
          caters  or  offers  its services,  goods,  or
          facilities to the general public and includes
          a   public  inn,  restaurant,  eating  house,
          hotel,  motel,  soda  fountain,  soft   drink
          parlor, tavern, night club, roadhouse,  place
          where  food or spiritous or malt liquors  are
          sold  for consumption, trailer park,  resort,
          campground,   barber  shop,  beauty   parlor,
          bathroom, resthouse, theater, swimming  pool,
          skating  rink, golf course, cafe,  ice  cream
          parlor, transportation company, and all other
          public amusement and business establishments,
          subject   only   to   the   conditions    and
          limitations established by law and applicable
          alike to all persons.
          
     31     Peterson  v. Ek, 93 P.3d 458, 464 n.9  (Alaska  2004)
(citing Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).

     32     Id.  (citing A.H. v. W.P., 896 P.2d 240, 243  (Alaska
1995)).

     33    Peterson, 93 P.3d at 464 n.9.

     34    Gilberts initial brief suggested that the psychological
tests  administered by Dr. Sperbeck may have been biased  against
the disabled, and that Dr. Sperbeck used Gilberts disabilities to
portray  her as hysterical and deprive her of insurance coverage.
This  is  a  variation  on Gilberts argument  that  Dr.  Sperbeck
conducted  a  fraudulent  IPE  and  misrepresented  her  to   the
arbitrator.   It  is therefore barred by witness  immunity.   See
supra Part III.B.

     35     See Alaska R. App. P. 212(c)(3) (providing that reply
brief  may  raise no contentions not previously raised in  either
the appellants or appellees briefs).