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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

Maines v. Kenworth Alaska, Inc. (04/06/2007) sp-6114, 155 P3d 318

     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

KEVIN A. MAINES, )
) Supreme Court No. S- 11255
Appellant, )
) 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, )
)
Appellees. )
)

          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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