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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 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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