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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maines v. Kenworth Alaska, Inc. (04/06/2007) sp-6114
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 firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA
|KEVIN A. MAINES,||)|
|) Supreme Court No. S- 11255|
|) Superior Court No.|
|v.||) 4FA-01-01328 CI|
|KENWORTH ALASKA, INC.,||) O P I N I O N|
|KENWORTH NORTHWEST, INC.,||)|
|and PACCAR, INC., d/b/a||) No. 6114 - April 6, 2007|
|KENWORTH TRUCK COMPANY,||)|
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge, and Winston S. Burbank, Judge pro tem. Appearances: Michael A. Stepovich, Stepovich Law Office, Fairbanks, for Appellant. Matthew C. Christian, Borgeson & Burns, PC, Fairbanks, for Appellees Kenworth Alaska, Inc. and Kenworth Northwest, Inc. Aimee Anderson Oravec, Winfree Law Office, APC, Fairbanks, for Appellee PACCAR, Inc. Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices. FABE, Justice. CARPENETI, Justice, with whom EASTAUGH, Justice joins, dissenting in part. I. INTRODUCTION The driver of a dump truck appeals the superior courts grant of summary judgment to both PACCAR, the truck manufacturer, and Kenworth, the truck distributor, for negligent maintenance and manufacture of the truck. The driver alleges that the truck leaked refrigerant from its air conditioning system and that he developed respiratory problems as a result of the leak. The driver challenges the decision of the superior court to strike two affidavits proffered in opposition to summary judgment. We conclude that the superior court did not abuse its discretion in excluding an unsigned and unsworn declaration but did err in excluding an affidavit from a late-disclosed expert without considering lesser alternative sanctions. We also conclude that the experts affidavit raises a genuine issue of material fact as to negligent maintenance on the part of Kenworth but not PACCAR. We therefore reverse the order granting summary judgment in favor of Kenworth but affirm the order granting summary judgment in favor of PACCAR on this claim. Finally, we conclude that the experts affidavit raises a genuine issue of material fact as to negligent manufacture on the part of PACCAR and therefore reverse the order granting summary judgment to PACCAR on this claim. II. FACTS AND PROCEEDINGS A. Factual History Kenneth Maines procured temporary, seasonal employment as a truck driver at Exclusive Landscaping and Paving, Inc. (Exclusive) in Fairbanks in June 1999. Maines drove a Kenworth dump truck, designated Truck 2-6, for Exclusive. The truck was manufactured by PACCAR, Inc., was sold to Exclusive by Kenworth,1 and was used extensively in heavy construction. Truck 2-6 was a new truck purchased and first used by Exclusive in April 1998. Prior to Mainess use of the truck, three repairs were made by Kenworth under PACCARs general warranty. Only one of these repairs concerned the air conditioning system and occurred on July 23, 1998 when Kenworth replaced an O-ring on the suction hose at the compressor and charged the air conditioning system with 3.4 pounds of refrigerant. During the summer of 1999 and after the warranty had expired, a total of four repairs were made to Truck 2-6 during Mainess use of the truck. Two of those repairs involved leaks of refrigerant from the air conditioning system. On June 10, 1999, an existing leak in the air conditioning system was identified. A loose connection hose was repaired by tightening the hose and charging the system with one pound of R-134A refrigerant. On July 16, 1999, another leak was identified that was wholly unrelated to and separate from the repair made on June 10, 1999. A fitting at the condenser line was tightened and the system was again charged with refrigerant. The amount of refrigerant replaced is unknown. The last two of the four repairs were made to the air conditioning system in August 1999. But there is no evidence to indicate leaks were present or that additional refrigerant was needed for the system. Maines began driving the truck in June 1999. Two months later, in August 1999, Maines complained to Dr. Eric Tallon, an ear, nose, and throat specialist, that he had developed the following around the clock symptoms: sore throat, nasal voice with congestion, shortness of breath, wheezing, congestion of the lungs, sweats at night, occasional palpitation, poor sleep, occasional bouts of nausea with vague arthralgia of the upper extremities, including shoulders. Maines maintained that these symptoms developed over a six-week time frame starting in June 1999. He also contended that he had never had any history of bronchitis, sinusitis, or been treated for any form of sleep apnea or sleep disorder prior to May 1999. At the time, Maines stated he was working nine- to twelve-hour work shifts six days a week and that his symptoms were worse while at work. Maines was referred to a pulmonologist, Dr. Owen Hanley, who placed him on several bronchodilators to treat asthma. In December 2000 Dr. Stephen McCurdy became the first to relate Mainess upper and lower respiratory problems to his exposure to the refrigerant, R-134A, during 1999. The relevant portions of Dr. McCurdys affidavit state: I am familiar with R- 134A; it is a fluorinated hydrocarbon. . . . Low exposures with fluorinated hydrocarbons are typically associated with transient upper airway irritation. . . . Exposure to high concentrations has been associated with chronic bronchial hyperresponsiveness (asthma), as now affects the patient. Dr. Dana Headapohl concurred with this assessment during an independent medical examination for Mainess workers compensation claim. Her diagnosis stated that [m]ost of Mr. Mainess symptoms during the time of the leaking refrigerant are consistent with exposure to Freon, with the exception of arthralgias. At Exclusives request, Dr. Brent Burton examined Maines on August 1, 2002. Dr. Burton concluded in an affidavit submitted to the trial court that none of [Mainess] physical symptoms are consistent with exposure to R-134A. He concluded that the symptoms are more likely than not related to Mr. Maines poor physical condition and morbid obesity, chronic rhinosinusitis with anatomically deviated septum, heat and stuffy air in the truck cab, potential sleep apnea, and/or a combination of any or all of these factors. Dr. Burton also noted that a history of marijuana use and occasional use of pipe tobacco would significantly affect his physical symptoms. Maines does have a history of marijuana use since at least 1986. Lance Eike, an expert witness for PACCAR, explained how R-134A flows between the evaporator, compressor, and condenser and that O-rings seal each connection point, stating: In the event any refrigerant leaked from an O-ring connection, the leak would occur within the engine compartment itself, not in the cabin. He maintained that the air conditioning system has multiple barriers to prevent engine compartment air from entering the cabin, and that [t]he only failure of the air conditioning system that could leak refrigerant directly into the cabin is a failure in the evaporator core. No other component failure has the potential to allow refrigerant directly into the cab. . . . The failure rate of the evaporator under warranty in similar models is just over one-half of one percent . . . . But Maines disputed Eikes contentions through an affidavit of Christopher Meltvedt, an automotive expert. The affidavit stated: The opinion that I hold, on a more-probable- than-not basis, that refrigerant leaked directly in to the cabin of Kenworth dump truck 2-6, is based on the medical condition of Mr. Maines, as set out in the reports of Dr. McCurdy and Dr. Headapohl; my knowledge and experience working with this type of air conditioning system; the repair orders generated by Kenworth [and] the continued loss of refrigerant from the air conditioning system. B. Procedural History Maines filed a complaint against Kenworth and PACCAR on June 11, 2001, alleging that they negligently manufactured and maintained Truck 2-6. The negligent maintenance claim mainly implicates a number of repairs undertaken during Truck 2-6s warranty period and during the period Maines drove the truck. Maines alleges that this negligence caused him to be exposed to hazardous materials, which in turn caused him to develop respiratory problems. Maines sought damages in excess of $100,000. Maines also filed a claim for workers compensation benefits at roughly the same time seeking temporary total disability benefits, permanent partial disability benefits, and continuing medical benefits. These claims were denied by the Alaska Workers Compensation Board on August 18, 2003. Kenworth and PACCAR argue that this denial of benefits renders Mainess appeal moot. On April 4, 2003, PACCAR and Kenworth filed separate motions for summary judgment. On April 21, 2003, Maines filed a motion for a thirty-day extension of time to respond, which was granted over PACCAR and Kenworths objection. On May 21, 2003, Maines submitted his opposition to the motions for summary judgment, including an unsigned affidavit of Dr. McCurdy and an accompanying notice of filing an unsigned affidavit, which explained that the affidavit needed to be mailed back to California for a signature and would not be returned in time to meet the deadline. On June 12, 2003, Maines was permitted to supplement his opposition with an Alaska Civil Rule 26 disclosure statement of Meltvedt. Superior Court Judge Richard D. Savell noted in his order permitting supplementation that [t]his ruling does not preclude or address the argument that use of an automotive expert was not timely disclosed or that the affidavit is substantively deficient. On June 25, 2003, Judge Savell granted PACCARs motion for summary judgment concluding that there was no evidence of negligent manufacture by PACCAR or Kenworth and rejecting the theory of res ipsa loquitur. Judge Savell also issued oral findings that the affidavit of Dr. McCurdy was inadmissible for the purpose of opposing summary judgment. Judge Savell indicated he strongly disfavored allowing Meltvedts affidavit, but he permitted Maines additional time to oppose Kenworths motion to strike Meltvedts affidavit. On July 29, 2003, District Court Judge Winston S. Burbank was appointed Superior Court Judge Pro Tempore and presided over the remaining issues in the case. On August 13, 2003, Judge Burbank issued a written order that deemed Meltvedts statement inadmissible for the purpose of opposing summary judgment; the written order also explained in greater detail the rationale behind Judge Savells earlier decision to exclude Dr. McCurdys affidavit. Judge Burbank issued a second order on August 13, 2003, granting Kenworths motion for summary judgment on the remaining issue of negligent maintenance and repair. Maines appeals. III. STANDARD OF REVIEW We review a grant of summary judgment de novo.2 When ruling on a motion for summary judgment, we draw all reasonable inferences in the non-movants favor and will affirm only if there is no genuine issue of material fact.3 We may consider any argument ascertainable from the record, even if the superior court did not rule on it.4 Once a movant has satisfied his burden of establishing an absence of genuine issues of material fact and his right to judgment as a matter of law, the non-movant is required, in order to prevent summary judgment, to set forth specific facts showing that he could produce evidence reasonably tending to dispute or contradict the movants evidence and thus demonstrate that a material issue of fact exists.5 In Alaska, any evidence sufficient to raise a genuine issue of material fact,6 so long as it amounts to more than a scintilla of contrary evidence,7 is evidence sufficient to oppose summary judgment. Whether collateral estoppel applies is also a question of law that we review de novo.8 A trial courts decision to admit or exclude evidence, including whether to exclude expert testimony, is reviewed for an abuse of discretion.9 IV. DISCUSSION A. The Superior Court Did Not Abuse Its Discretion by Excluding Dr. McCurdys Affidavit from Its Consideration of Summary Judgment. Maines submits that the superior court improperly excluded the unsigned and unnotarized affidavit of Dr. McCurdy. Kenworth responds that the superior courts decision was correct because Dr. McCurdys declaration was originally submitted unsigned, was never notarized nor sworn, did not state that a notary was unavailable, and hence did not meet the statutory requirements of an affidavit under either AS 09.63.01010 or AS 09.63.020.11 The affidavit of Dr. McCurdy was submitted unsigned when it was first filed with the court on May 21, 2003. A copy of a faxed signature page was later filed in open court on the date of oral argument, June 25, 2003. On July 21, 2003, another unnotarized signature page, dated July 8, 2003, was filed with the superior court. This page did not include the signature of a notary public and instead contained the signatures of Susan Warren-Alef and Phillippa Savage, who affirmed that Dr. McCurdy signed the page on July 8, 2003. There is no sworn statement indicating that Dr. McCurdys affidavit was made truthfully or under penalty of perjury, and no statement was ever submitted indicating that a notary was unavailable, as required by AS 09.63.020. There is also no explanation of the titles or positions of Warren-Alef or Savage indicating that they fall within the requirements of AS 09.63.010. At the time of oral argument on summary judgment on June 25, 2003, Maines admitted that he had still not filed a notarized affidavit with the court, nor served a copy on the appellees. At oral argument on June 25, 2003, Judge Savell concluded that this affidavit was inadmissible for purposes of summary judgment. Judge Burbank issued a written order explaining the rationale for this decision on August 13, 2003. Judge Burbank reasoned that the superior court was bound by our holding in Bennett v. Weimar that assertions of fact in unverified pleadings and memoranda cannot be relied on in denying a motion for summary judgment.12 Judge Burbank further quoted Bennett: Alaska statutes contain no . . . provision permitting unsworn declarations in lieu of affidavits. 13 We explained in Bennett that we are not willing to equate an unsworn declaration with an affidavit for purposes of summary judgment proceedings. This is an additional safeguard which we wish to retain.14 Dr. McCurdys declaration does not satisfy any of the requirements in Alaska Civil Rule 5615 or AS 09.63.020, and Maines also offers no explanation for his failure to comply with these provisions.16 Maines argues that the rule should be expanded to permit affidavits when there are facts that could cause the trial court to believe that the affiant was identified at the time the document was signed, and there is an indication that the affiants statements were truthful. But Maines fails to explain why Dr. McCurdy was unable to have his affidavit notarized in a timely fashion; why Maines failed to supply a notarized version of the affidavit to the superior court at any point; and why the superior court should consider the affidavit to be truthful without a sworn statement by Dr. McCurdy to that effect, especially given the ample period of time permitted by the superior court from the original filing date. Moreover, Maines did not request additional time to file a notarized affidavit. The superior courts decision to exclude this affidavit was not an abuse of discretion. B. It Was Error for the Superior Court To Exclude the Affidavit of Christopher Meltvedt from Summary Judgment Consideration. Maines contends that the superior court improperly excluded the affidavit of Christopher Meltvedt, an automotive expert. The superior court issued a pre-trial order on August 14, 2002 that required Maines to file and serve notice of expert witnesses he planned to call and their fields of expertise by November 18, 2002. Maines was permitted to supplement his initial expert witness information by December 2, 2002. Maines did not identify his plan to call an automotive expert until May 27, 2003, the day final disclosures were due, and he did not formally request to supplement his opposition to summary judgment with Meltvedts report and affidavit until May 29, 2003. In this request, Maines stated that Meltvedts affidavit was not available at the time Maines filed his original opposition on May 21, 2003, but he offered no further explanation for his failure to disclose Meltvedt as an expert by any of the previous deadlines set by the trial court. At the time, Judge Savell granted Mainess request to supplement, but specifically reserved for later consideration the issue of whether the statement was timely disclosed or substantively deficient. Judge Burbank later concluded that Meltvedts statement was inadmissible on two grounds: first, that admission of the affidavit in violation of the pre-trial order would create unfairness and prejudice to the defendants; and second, that the affidavit and report were conclusory and failed to assert a factual basis for the experts opinions. The trial court relied on Yukon Equipment, Inc. v. Gordon17 as support for its decision. In Yukon Equipment, Yukon deposed the opposing parties expert after the deadline for filing witness lists, and only then did Yukon decide to secure an expert of its own.18 We noted that [t]he precise situation that the protective orders were designed to avoid occurred in this case: as soon as Yukon became informed of the other parties experts opinion, it then hired its own expert to rebut that opinion.19 We concluded that to allow Yukon this expert amounted to an unfair advantage because Yukon could thereby save considerable time and expense as well as focus its experts energies on just the points needing rebuttal rather than having the expert undertake a thorough and independent investigation.20 Maines maintains that there was no prejudice to Kenworth or PACCAR akin to that in Yukon Equipment because Maines did not wait until he knew which experts PACCAR or Kenworth were going to use before hiring Meltvedt. Maines disclosed Meltvedt on the same day that the defendants filed their witness lists and Meltvedt had examined the truck on two previous occasions, with representatives of both defendants present during the March 2003 vehicle inspection. Therefore, Yukon Equipments concerns about avoiding prejudice and expense to the parties are not at issue in this case. Alaska Civil Rule 37(b)(3) provides that when a court imposes sanctions for violations of discovery orders, [t]he court shall not make an order that has the effect of establishing or dismissing a claim or defense or determining a central issue in the litigation unless the court finds that the party acted willfully. We have previously held that an order precluding expert witnesses from testifying amounts to a Rule 37(b) sanction if it effectively determin[es] a central issue in the litigation.21 Before imposing such a sanction, Rule 37(b)(3) requires a finding of willfulness, as well as the consideration of several factors, including whether lesser sanctions would adequately protect the opposing party.22 Willfulness is defined as a conscious intent to impede discovery, and not mere delay, inability or good faith resistance.23 Here, the exclusion of Meltvedts affidavit effectively determined a central issue in the case. Meltvedts testimony was the only evidence submitted by Maines to support the necessary causal link between Mainess symptoms and the problems in the trucks air conditioning system which according to Meltvedt resulted in refrigerant leaking directly into the cab of the truck. As the superior court noted, without this testimony, there was no genuine issue of material fact to survive a motion for summary judgment. Yet the superior court made no finding of willfulness, explaining instead that [r]egardless of whether Maines non-compliance was willful, the timing of Maines disclosures sheds light on the very unfairness and prejudice the court tried to prevent through the pretrial order. In addition, it is difficult to see how any prejudice caused by Mainess late disclosure of Meltvedt could not have been cured by a lesser sanction in this case.24 First, Kenworth and PACCAR were on notice of Mainess consulting relationship with an expert because Meltvedt was present at the inspection of the truck in March 2003. Moreover, Kenworth and PACCAR both filed their final expert witness lists on May 27, 2003, the same date as Maines. Thus, final disclosure of experts by all parties occurred on a date that was nine days before the close of discovery on June 5, 2003. If depositions of experts could not be completed by the discovery deadline, a brief extension could have remedied this problem. Costs of the late depositions could have been assessed against the offending party. Ample time remained to cure any problems because more than two months remained until the scheduled trial date of August 4, 2003. We have previously noted that the [e]xploration of alternative sanctions will not be assumed . . . . If meaningful alternative sanctions are available, the trial court must ordinarily impose these lesser sanctions.25 Although Mainess failure to comply with the final pre-trial deadline may have warranted some sanction, the trial court was required to consider meaningful, lesser alternatives to the exclusion of Meltvedts affidavit, which had the effect of determining a central issue in the case.26 Hence, it was an abuse of discretion to exclude the affidavit instead of exploring lesser sanctions. We also disagree with the trial courts alternative basis for excluding Meltvedts report: that it was conclusory. The superior court relied on Haisley v. Grant27 when striking Meltvedts affidavit, explaining that [e]xpert testimony must be based on sufficient facts and must be of appreciable assistance to the jury. But the superior court overlooks that Haisley actually reaffirmed our liberal view favoring the admission of expert testimony.28 We have previously explained that [w]eaknesses in data used by an expert in formulating his opinion are properly weighed by the jury after being brought out by cross- examination. The jury should normally decide whether an experts opinion is based on sufficient facts.29 In this case, Meltvedt asserted numerous sources for his opinions and maintained that his opinions were based on conversations with Maines, as well as on disclosures by Kenworth, other expert affidavits, and twelve photographs of the trucks engine and cabin. If any deficiency existed in Meltvedts testimony, it could have been corrected through discovery, through cross-examination at trial, or through jury instructions. We therefore conclude that it was error for the superior court to exclude Meltvedts affidavit. The dissent asserts that Maines failed to address on appeal the issue of whether Meltvedts affidavit was conclusory until his reply brief, and, as a result, waived the issue. While the dissent is correct that an issue raised for the first time in a reply brief is deemed to have been waived,30 we believe that Maines has successfully preserved this particular issue at every stage of the legal process. First, in the superior court, Maines did explicitly address the adequacy of Meltvedts affidavit and whether it was based on sufficient facts and would have been of assistance to the jury. At oral argument in the superior court, the following exchange occurred: The Court: Where does Mr. Meltvedt say what actions what Kenworth did wrong that fell below the standard of care? I cant find that. Is it in there? Mr. Stepovich: That they did he can offer an opinion. [Evidence Rule] 703, he offers an opinion. Now, if somebody wants to cross examine him on his opinion this is an expert. He can give that opinion and he can sit down and they can you know, its a factual they can cross examine him and say, Well, whats the basis of that opinion? What are you talking about? Youre supporting of that, youre using that . . . . At oral argument in the superior court, Maines also directly addressed the argument that Meltvedts affidavit lacked foundation: Mr. Stepovich: The second point is that this affidavit has no support for the purpose of opposing summary judgment. Well, we would submit that thats he has set out his opinions under [Evidence Rule] 703. Weve complied with Civil Rule 56(e) as far as the form of the affidavits. He gives his opinion that it leaks in there, that there was negligent repair. They continuously repaired it through the summer. So clearly theres enough to I mean, if the Court wants to throw this guy out after some other motion is filed, theres some other argument, then thats a different story. But based on whats raised here today in summary judgment, theres a question of fact, and, taken in the light most favorable to the non-moving party, theres issues that the jury needs to decide. And in his written materials opposing the motion to exclude Meltvedt, Maines elaborated on his position, stating: The Defendants assertion that Plaintiffs experts (Meltvedt, McCurdy, and Headapohl) all fail the Daubert/[Coon] test is premature and without merit. . . . The Courts gatekeeper function for [this] expert witness testimony is better left to the courts sound discretion at trial, after the Court has heard a concise and thorough recitation of their testimony on direct examination. It is undisputed that the trial court does have an obligation under the Evidence rule to fulfill this gatekeeper function for all witness testimony. This function is better served at trial when the witnesses are presented, and evidence is taken. Moreover, in his initial appellate brief, Maines argued that the superior court abused its discretion in excluding Meltvedts affidavit by misinterpret[ing] the facts and ignoring evidence that Meltvedt had inspected the vehicle in question on at least two occasions. Although it is a close call, we find this argument constitutes a challenge to the superior courts ruling that Meltvedts affidavit was neither based on sufficient facts . . . [nor] of appreciable assistance to the jury. Our conclusion is fortified by the character of the superior courts decision that Meltvedts report was conclusory the superior court expressed its decision without elaboration and Mainess response similarly pays but little attention to this point. Finally, Maines addressed the question of the sufficiency of Meltvedts affidavit in his appellate reply brief, arguing that Meltvedt was qualified to give an opinion, was familiar with the vehicle in question, and he had the requisite experience. Maines also pointed out in his appellate reply brief that Meltvedt opined that the repairs to the vehicle fell below the standard acceptable in the automotive industry, and that leaking refrigerant, more probably than not, leaked into the vehicles cab. This was sufficient to raise a genuine issue of material fact. We conclude that Maines adequately addressed both bases for the superior courts decision to strike Meltvedts affidavit and did not waive the issue on appeal.31 Because it was error to disallow Meltvedts affidavit and because Meltvedts affidavit raises a genuine issue of material fact as to Kenworths breach, we conclude it was error to grant summary judgment to Kenworth. C. The Superior Courts Grant of Summary Judgment to PACCAR on the Claim of Negligent Maintenance Was Not Error. Maines argues that there is an issue of material fact on the number of repairs made to the truck by PACCAR and, therefore, the superior court was in error in granting summary judgment on this claim. But Maines does not, in either his materials opposing summary judgment or his briefs on appeal, provide direct evidence that PACCAR ever conducted any repairs on the truck. Instead, abundant evidence shows that it was Kenworth who conducted the three repairs to the truck undertaken during the warranty period.32 Maines in his own affidavit states as much. The ruling on summary judgment is to be made based on the record the parties have actually presented, not on one potentially possible.33 Because Maines did not allege a breach of warranty claim and did not provide any evidence that PACCAR or its employees undertook any repairs, the superior courts grant of summary judgment to PACCAR on the claim of negligent maintenance was not in error. D. It Was Error for the Superior Court To Grant Summary Judgment to PACCAR on the Claim of Negligent Manufacture. Maines additionally asserts a claim of negligent manufacture34 against PACCAR. The superior court found that there was no evidence that something was manufactured improperly in [the trucks] design or that its design was deficient. This evidence . . . would have to be generally produced and supported by the opinions of engineers and other automotive experts. Nothing submitted by the plaintiff goes to the manufacture. Maines argues that there is evidence in the record sufficient to raise a genuine issue of material fact. We agree. PACCARs own expert witness, Lance Eike, states that [t]he only failure of the air conditioning system that could leak refrigerant directly into the cabin is a failure in the evaporator core. Eike then goes on to argue that none of the repairs made to the vehicle implicated the evaporator core. But his argument only addresses whether Kenworth was negligent in maintaining the truck and does not implicate PACCARs manufacture or design of the truck. What does go to the issue of defect is Eikes statement that [t]he failure rate of the evaporator [core] under warranty in similar models is just over one-half of one percent. Eike appears to advance this failure rate as a normal attribute of the design of the truck. But reasonable people might regard a rate of failure in which one out of every two hundred trucks will develop a toxic gas leak within the warranty period as unacceptably high. While the record does not address the standards of the industry, whether an alternative design is feasible,35 or whether this predicted failure rate is a result of negligent design or manufacture, it would seem that the question is one of fact for the jury. A question of fact is also present on the issue of causation. The Eike affidavit confirms that only a defect in the evaporator core could cause a leak of this kind of toxic gas into the truck cab. Eikes discussion of failure rates and evaporator core testing practices confirms that evaporator core defects and the consequences of a leak are foreseeable. Evidence in the record, other than the affidavit of Dr. McCurdy, further suggests that there is a question of fact whether Mainess symptoms were of the type to occur in a person exposed to this type of toxic gas or whether they were due to his lifestyle. For Maines to defeat a motion for summary judgment, he must set forth specific facts amounting to a genuine issue of material fact.36 To create a genuine issue of material fact there must be more than a scintilla of contrary evidence.37 Here, Mainess evidentiary showing on the issues of defect and causation is sufficient to defeat a motion for summary judgment. We therefore conclude that it was error to grant summary judgment to PACCAR on the claim of negligent manufacture. E. The Doctrine of Collateral Estoppel Does Not Render Mainess Appeal Moot. Kenworth and PACCAR contend that Maines is bound by the Alaska Workers Compensation Board finding that Maines did not suffer a work-related respiratory ailment and that the Boards decision renders this appeal moot because the Boards decision should be given collateral estoppel effect.38 On July 24 and 25, 2003, the Board conducted an administrative hearing regarding Mainess claim that he was exposed to refrigerant that caused him injury while working at Exclusive. The Board considered whether Maines was entitled to temporary total disability benefits, permanent partial impairment benefits, transportation expenses, and attorneys fees and costs. The Board denied all of these claims and issued a written opinion on August 18, 2003, five days after the resolution of the civil case on summary judgment. The Boards decision thus was not considered by the superior court in rendering its order granting summary judgment on August 13, 2003. The parties must first raise this issue in the trial court before we can consider whether the doctrine of collateral estoppel applies in this instance. It is well-established that [m]atters that were not made issues in the trial court . . . or that were not tried before the court will not be considered on appeal.39 [A]n appellate brief can neither append nor refer to evidence outside the record . . . .40 Because the collateral estoppel effect of the Boards decision was not properly raised or briefed at the superior court level, this issue is not properly before us. V. CONCLUSION We AFFIRM the exclusion of the McCurdy affidavit. But because we REVERSE the exclusion of the Meltvedt affidavit, we REVERSE the grant of summary judgment to Kenworth on the negligent maintenance claim. Because the affidavit does not make out a genuine issue of material fact as to negligent maintenance on the part of PACCAR, we AFFIRM the partial grant of summary judgment to PACCAR on this claim. Because we conclude a genuine issue of material fact is raised as to negligent manufacture, we REVERSE the grant of summary judgment to PACCAR on this claim. CARPENETI, Justice, with whom EASTAUGH, Justice, joins dissenting in part. In Part IV.B. of todays Opinion, the court holds that it was error for the superior court to exclude the Meltvedt affidavit from summary judgment consideration. The superior court excluded the affidavit on two grounds: its lateness and its lack of substance. Because the appellant has not timely addressed the second basis for the superior courts decision, I would hold that the appellant has waived any objection to this second basis for the decision, and affirm the superior court on the basis of waiver. Judge Burbank ruled that the Meltvedt affidavit was late and that it was so conclusory as to be useless to oppose summary judgment. In his opening brief Maines argues that the superior court erred in its lateness ruling, but he does not challenge the superior courts alternative basis for its ruling. The appellant has therefore waived argument on this issue. This is a sufficient basis for affirmance. We have consistently found that parties have waived challenges to lower court action by (1) failing to raise an issue in the lower court or to include it in points on appeal;1 (2) failing to brief an issue to this court after including it as a point on appeal;2 or (3) failing to brief an issue adequately.3 Here, Maines has failed to address the superior courts ruling that the Meltvedt affidavit and report were conclusory and thus insufficient at every critical juncture of the appellate process: It is not in the statement of points on appeal, it is not mentioned at all in the appellants brief, and it is therefore not briefed adequately. It is mentioned for the first time in Mainess reply brief, too late under our case law. Maines has therefore waived consideration of the issue. Todays Opinion tries to find in the appellants opening brief a challenge to the superior courts ruling that the Meltvedt affidavit was conclusory. Conceding that the issue is a close call, the court points to Mainess assertion in his opening brief that the superior court abused its discretion by misinterpret[ing] the facts and ignoring evidence that Meltvedt had inspected the vehicle in question on two occasions. But this sparse language does not go at all to the issue whether the superior court erred in finding the affidavit to be conclusory; it goes to when Kenworth and PACCAR ought to have realized that Meltvedt was going to be called as an expert witness. The section of the appellants brief in which this language is found begins: The trial court excluded the affidavit of Chris Meltvedt because it found that Meltvedt was not identified as an expert prior to its filing. (Emphasis added.) The entire section is then devoted to showing that Kenworth and PACCAR were on notice that Meltvedt was an expert from an early stage of the case. In sum, there is not a word in Mainess opening brief about whether the Meltvedt affidavit was conclusory and without factual support. As noted above, Maines did not mention the issue at all until his reply brief. Our case law is perfectly clear that an argument may not be raised for the first time in a reply brief.4 Despite Mainess failure to raise the issue of the conclusory nature of the Meltvedt affidavit in a timely fashion, the Opinion nonetheless considers the superior courts alternative basis for summary judgment that Meltvedts affidavit lacked substance and was conclusory and holds that this alternative basis was erroneous. But Mainess failure to address this issue before his reply brief leaves us with no basis for considering it. Even the plain error doctrine5 a doctrine not addressed by todays Opinion would not allow us to reach an issue not raised by the appellant before us. While we may affirm on any basis supported by the record,6 it is quite another thing to go beyond the issues raised by the appellant in order to reverse.7 Because Maines did not mention the superior courts ruling that the Meltvedt affidavit was insufficient in his points on appeal and he did not raise the issue in his opening brief, I would hold that he has waived any argument that the superior court erred in refusing to consider the Meltvedt affidavit. I would affirm the judgment of that court on that basis.8 I respectfully dissent. _______________________________ 1 Kenworth Northwest, Inc. (the regional distributor), Kenworth Alaska, Inc. (the local Kenworth dealer), and PACCAR, Inc., d/b/a Kenworth Truck Company (the manufacturer) are three distinct entities. We refer to Kenworth Alaska and Kenworth Northwest collectively as Kenworth. 2 Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801 (Alaska 2002) (citing United Airlines, Inc. v. Good Taste, Inc., 982 P.2d 1259, 1262 (Alaska 1999)). 3 Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001) (citing Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1086 (Alaska 1989)). 4 Cabana, 50 P.3d at 801 (quoting Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995)). 5 Parker v. Tomera, 89 P.3d 761, 765 (Alaska 2004) (quoting State, Dept of Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska 1978) (citation omitted)). 6 In the Matter of J.B., 922 P.2d 878, 881 n.4 (Alaska 1996) (emphasis added). 7 Martech Constr. Co., Inc. v. Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1149 n.7 (Alaska 1993) (citation omitted). 8 Matanuska Elec. Assn, Inc. v. Chugach Elec. Assn, Inc., 99 P.3d 553, 558 (Alaska 2004) (citing Alaska Contracting & Consulting, Inc. v. Alaska Dept of Labor, 8 P.3d 340, 344 (Alaska 2000)). 9 Kava v. Am. Honda Motor Co., Inc., 48 P.3d 1170, 1173 (Alaska 2002) (citing Hutchins v. Schwartz, 724 P.2d 1194, 1197 (Alaska 1986)); State v. Coon, 974 P.2d 386, 398 (Alaska 1999). 10 AS 09.63.010 lists six categories of persons permitted to take an oath, affirmation or acknowledgment in Alaska. 11 AS 09.63.020 permits a person to certify in writing under penalty of perjury that the matter is true. The certification shall state the date and place of execution, the fact that a notary public or other official empowered to administer oaths is unavailable, and the following: I certify under penalty of perjury that the foregoing is true. 12 975 P.2d 691, 694 (Alaska 1999) (quoting Jennings v. State, 566 P.2d 1304, 1309-10 (Alaska 1977)). 13 975 P.2d at 695. 14 Id. at 696. 15 Alaska Civil Rule 56(e) sets forth the proper form of affidavits submitted for summary judgment purposes. 16 Maines argues that because Dr. McCurdys affidavit was executed in California and California authorizes unsworn declarations, this court should make an exception to its statutory requirements. See Stationers Corp. v. Dun & Bradstreet, Inc., 398 P.2d 785, 787 n.2 (Cal. 1965). We need not decide whether this would excuse Maines, however, because he also failed to satisfy the requirements for an unsworn statement or declaration in California. The California Code of Civil Procedure requires that an unsworn statement, declaration, verification, or certificate, must recite that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. Cal. Civ. Proc. Code 2015.5 (2005). 17 660 P.2d 428, 431 (Alaska 1983), overruled on other grounds by Williford v. L.J. Carr Inv., Inc., 783 P.2d 235, 237 n.5 (Alaska 1989). 18 Yukon Equipment, 660 P.2d at 431-32. 19 Id. at 432. 20 Id. 21 Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1170 (Alaska 1998) (reversing the superior courts order prohibiting Sykes, who had missed the filing deadlines, from calling any expert witnesses because the order ha[d] the effect of . . . determining a central issue in the litigation ) (quoting Civil Rule 37(b)(3)). 22 Sykes, 952 P.2d at 1169 ([W]e have repeatedly held that the trial courts discretion is limited when the effect of the sanction it selects is to impose liability on the offending party, establish the outcome of or preclude evidence on a central issue, or end the litigation entirely. Before extreme sanctions of this kind may properly be imposed, [t]here must be willful noncompliance with court orders, or extreme circumstances, or gross violations of the Rules. ) (quoting Arbelovsky v. Ebasco Servs., Inc., 922 P.2d 225, 227 (Alaska 1996)). 23 Hawes, 634 P.2d at 378 (citations omitted). 24 See Sykes, 952 P.2d at 1171 (trial courts decision to preclude expert witness testimony as sanction for untimely submission of witness list was reversible error where there was little indication that accepting untimely lists would have caused defendant serious prejudice and there was no consideration of lesser sanctions). 25 Arbelovsky, 922 P.2d at 227. 26 See Ball v. Birch, Horton, Bittner & Cherot, 58 P.3d 481, 488 (Alaska 2002) (noting that vexatious delays and misrepresentations regarding the availability of expert testimony justified enhanced attorneys fees but not litigation-ending sanctions); see also Honda Motor Co., Ltd. v. Salzman, 751 P.2d 489, 493 (Alaska 1988) (ultimate sanction was justified after trial judge gave defendant several oral and written warnings, which defendant failed to heed, and judge extended deadlines, imposed less drastic sanctions, and endured violations of court orders). 27 486 P.2d 367, 371 (Alaska 1971). 28 Id. (emphasis added). 29 N. Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1189 (Alaska 1977) (citing Haisley, 486 P.2d at 370 and Maddocks v. Bennett, 456 P.2d 453, 455 (Alaska 1969)). 30 Crittell v. Bingo, 83 P.3d 532, 536 n.19 (Alaska 2004) (holding that a reply brief may raise no contentions not previously raised in either the appellants or appellees briefs ) (quoting Alaska R. App. P. 212(c)(3)). 31 Although we do not rely upon this basis today, we note that it is within the discretion of the court to reach an issue that has otherwise been waived. See Vroman v. City of Soldotna, 111 P.3d 343, 349 n.22 (Alaska 2005) (exercising our discretion to consider a claim that was arguably waived after being only generally touched upon in the appellants brief). 32 These three repairs were made during the warranty period and, had Maines brought a breach of warranty claim, could have been attributed to PACCAR. PACCAR could therefore be liable for the negligence of its agents under a theory of respondeat superior. But Maines did not proceed on this theory. Even if he had, whether circumstantial evidence would be enough to show that PACCAR had the kind of control over Kenworth required by Alaska courts is an open question. See, e.g., discussion of respondeat superior and the requirements of joint control in Northern Lights Motel, 561 P.2d at 1186-88. 33 Madeirense Do Brasil S/A v. Stulman-Emrick Lumbar Co., 147 F.2d 399, 405 (2d Cir. 1945). 34 Maines brings this case in negligence and not strict liability. Alaska adopted the strict liability approach to product defect claims in Clary v. Fifth Avenue Chrysler Center, 454 P.2d 244 (Alaska 1969). Since then, the majority of product defect cases have been brought in strict liability. Cases brought under a theory of negligence are rare, but are nevertheless possible. 35 Alaska does not require the proof of a reasonable alternative design to be an absolute requirement. See discussion of the Barker test in Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 880-86 (Alaska 1979). 36 Martech, 852 P.2d at 1149 n.7 (citation omitted); see also Meyer v. State, 994 P.2d 365, 367 (Alaska 1999). 37 Martech, 852 P.2d at 1149 n.7 (citation omitted). 38 Collateral estoppel, also known as issue preclusion, is the doctrine that prevents the relitigation of an issue that was actually litigated and was a critical and necessary part of the earlier judgment. The judgment on the issues litigated in the first action, then, is binding upon the parties in all later litigation in which those issues arise. Bryan A. Garner, A Dictionary of Modern Legal Usage 121 (1987). Res judicata is the same principle, but broader, and implies that no further issues exist relating to the dispute. Id. Generally a prior decision or finding on any relevant issue in a [workers] compensation proceeding is res judicata as to the same issue in a subsequent suit at law to recover for the same injury or death, whether the effect is to defeat the suit or to defeat a defense to the suit. See 8 Arthur Larson & Lex K. Larson, Larsons Workers Compensation Law 79.72(d) (1999). 39 Lumbermens Mut. Cas. Co. v. Contl Cas. Co., 387 P.2d 104, 109 (Alaska 1963). 40 State, Dept of Natural Res. v. Transamerica Premier Ins. Co., 856 P.2d 766, 776 (Alaska 1993) (citing L.L.M. v. P.M., 745 P.2d 599, 600 (Alaska 1987)). 1 Gunderson v. Univ. of Alaska, Fairbanks, 902 P.2d 323, 327 n.5 (Alaska 1995) (holding that argument not raised before trial court or not included in statement of points on appeal will not be considered on appeal). 2 Wasserman v. Bartholomew, 38 P.3d 1162, 1171 (Alaska 2002) (finding waiver where party listed issue in points on appeal but failed to brief it); Union Oil Co. of Cal. v. State, Dept of Revenue, 677 P.2d 1256, 1259 n.6 (Alaska 1984) (finding waiver where numerous points on appeal were not briefed). 3 Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001) (holding that pro se litigant waived argument for failure to develop it); City of Fairbanks v. Rice, 20 P.3d 1097, 1106 (Alaska 2000) (holding that issue was so sparsely briefed as to be waived). 4 Lewis v. State, Dept of Corr., 139 P.3d 1266, 1272 (Alaska 2006) (We do not consider arguments raised for the first time in a reply brief.); Sengupta v. Univ. of Alaska, 139 P.3d 572, 580 (Alaska 2006) (We deem arguments raised for the first time in a reply brief to have been waived.); Lakloey, Inc. v. Univ. of Alaska, 141 P.3d 317, 323 n.18 (Alaska 2006) (Because Lakloey raises this contention for the first time in its reply brief, we do not consider it.); Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807, 819 (Alaska 2005); Simpson v. State, Commercial Fisheries Entry Commn, 101 P.3d 605, 611 (Alaska 2004) (argument waived because first raised in reply brief in superior court). 5 See, e.g., Dorman v. State, 622 P.2d 448, 461 (Alaska 1981) (party may raise issue on appeal, even after failure to raise it at trial, if the issue involves plain error). Thus, plain error, a doctrine used to excuse a partys failure to raise an issue in the trial court, requires that the appellant have addressed the issue in the appellate court. Maines did not address the issue of the Meltvedt affidavits insufficiency before us. 6 Hall v. TWS, Inc., 113 P.3d 1207, 1210 (Alaska 2005). 7 See Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska 2004) (Issues that are not raised in the superior court are waived and cannot be asserted on appeal as grounds for overturning a judgment.); Pitka v. Interior Regl Hous. Auth., 54 P.3d 785, 788 (Alaska 2002) (holding that appellate court will not consider new issues in order to secure reversal of lower court). 8 Waiver is a sufficient basis to resolve this issue. But I note in passing that Judge Burbanks decision that the Meltvedt affidavit was insufficient because of its conclusory nature appears to be well within the courts discretion: The Meltvedt affidavit merely sets out Meltvedts background, recites that he has reviewed documents produced in the case, and concludes that the analysis, service, maintenance and repair of the truck fell below the standards acceptable in the truck and automotive service and repair industry so that a failure in the [trucks] air conditioning system . . . resulted in the leaking of refrigerant. Other than this flat conclusion, unsupported by any specific facts, there is nothing. The Meltvedt report adds greater detail as to Meltvedts background and the documents he reviewed, but recites the same conclusory language with regard to his opinion.
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