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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brandner v. Hudson (11/09/2007) sp-6187

Brandner v. Hudson (11/09/2007) sp-6187, 171 P3d 83

     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

MICHAEL DAMIAN BRANDNER, )
) Supreme Court No. S- 12214
Appellant, )
) Superior Court No.
v. ) 3AN-03-06138 Civil
)
VIRGINIA LOUISE HUDSON and ) O P I N I O N
JAMES ARTHUR HUDSON, )
) No. 6187 -- November 9, 2007
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Suddock, Judge.

          Appearances: Matthew K. Peterson and  Monique
          R.   Renner,  Clapp,  Peterson,  Van   Flein,
          Tiemessen  &  Thorsness, LLC, Anchorage,  for
          Appellant.   Charles M. Merriner,  Anchorage,
          for Appellees.

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

          FABE, Chief Justice.

I.   INTRODUCTION
          Virginia   Hudson   sued  Dr.  Michael   Brandner   for
negligence  and assault based on an encounter in July  2002  that
occurred at Alaska Regional Hospital, where both Hudson  and  Dr.
Brandner   worked.   Hudson  sought  compensatory  and   punitive
damages,  claiming  that  a knee injury  and  emotional  distress
resulted from an incident in which Dr. Brandner dragged her  down
a  hallway and pushed her into her office chair.  After  a  bench
trial,  the  trial court awarded Hudson $90,828  in  compensatory
damages  and  $25,000 in punitive damages.  Dr. Brandner  appeals
the  courts  damages awards and its decision to admit records  of
domestic  violence petitions filed against Dr.  Brandner  by  his
wife.   Because  any  error in admitting  the  domestic  violence
petitions was harmless error, we affirm the decision of the trial
court.   Because  the compensatory damages award is  not  clearly
erroneous, and because clear and convincing evidence supports the
punitive  damages  award,  we affirm  the  trial  courts  damages
awards.
II.  FACTS AND PROCEEDINGS
          In  2002 Virginia Hudson and Dr. Michael Brandner  were
both  employed  at  Alaska  Regional  Hospital.   Hudsons  duties
included  scheduling surgeries.  Dr. Brandner was employed  as  a
surgeon at the hospital.  On the morning of July 5, 2002,  Hudson
received  a  note that Dr. Brandner was upset with her  regarding
the   schedule.   Hudson  testified  that  later  that  day,  she
encountered  Dr. Brandner in the hallway and said,  I  heard  you
were  upset.   Hudson  testified that in response,  Dr.  Brandner
grabbed  her arm and dragged Hudson down the hall to her  office.
When they entered the office, Dr. Brandner pushed Hudson into her
chair.  As she was pushed, Hudsons foot was tangled in the chair,
and she twisted her knee.  Dr. Brandner then left Hudsons office.
Immediately after the incident, Hudson showed a coworker her arm,
which  was  red,  and told her what happened.  On  the  following
Monday, Hudson returned to work and filed an incident report with
her  supervisor.   Hudson  then went to the  emergency  room  and
reported  the incident to the police.  Dr. Brandner was  given  a
deferred  prosecution.1   Over the next  several  months,  Hudson
experienced pain in her knee and ultimately required surgery.  In
addition,   Hudson   suffered  emotional  distress   and   sought
counseling and medication.
          Hudson sued Dr. Brandner, claiming assault, negligence,
and   civil  rights  violations,  and  seeking  compensatory  and
punitive  damages.  Hudsons husband sued for loss of  consortium.
Superior  Court  Judge  John Suddock conducted  a  two-day  bench
trial.  During the trial, over Dr. Brandners objection, the trial
court admitted Hudsons testimony about records she discovered  of
domestic  violence  petitions filed against Dr.  Brandner.    The
court  admitted  the testimony and the records  for  the  limited
purpose of proving Hudsons state of mind after the incident.
          At  the conclusion of the trial, Judge Suddock found in
favor of the Hudsons.  Judge Suddock found that Dr. Brandner  was
negligent  and  had  committed civil  battery.   He  awarded  the
Hudsons  $90,828 in damages, including approximately  $15,000  in
medical  expenses and lost wages; $25,000 in pain and  suffering;
and $50,000 for emotional distress.  In addition, the trial court
initially   indicated  that  $50,000  in  punitive  damages   was
appropriate.  The court later reduced the punitive damages  award
to $25,000.2
          Dr.  Brandner  appeals.   Dr. Brandner  challenges  the
trial  courts  decision to admit his domestic  violence  records,
asserting   that   the   records  were  irrelevant   and   unduly
prejudicial.   Dr. Brandner also challenges the courts  award  of
compensatory  damages  for  emotional  distress,  claiming   that
          Hudsons emotional distress was extreme and unusual and that it
was  not caused by his actions.  Finally, Dr. Brandner challenges
the punitive damages award, claiming it is not supported by clear
and convincing evidence and asserting that the trial courts award
was the product of passion or prejudice.
III. STANDARD OF REVIEW
          We  review the trial courts decision to admit  evidence
for  an  abuse  of discretion.3  We will overturn a trial  courts
award  of  compensatory damages only if it is clearly erroneous.4
As long as the trial court followed the correct rules of law, and
[its]  estimation  appears reasonable and is  grounded  upon  the
evidence,  [its]  finding  will  remain  undisturbed.5   We  will
overturn a trial courts award of punitive damages after  a  bench
trial  only  if  it  is manifestly unreasonable,  the  result  of
passion or prejudice, or entered in disregard of rules of law.6
IV.  DISCUSSION
     
     A.   Any  Error in Admitting Dr. Brandners Domestic Violence
          Records into Evidence Was Harmless Error.
          
          During the trial, Hudson testified that when the police
interviewed  her  on the day of the incident, they  told  her  to
check  Dr.  Brandners  record for domestic  violence.   She  also
testified  that a nurse at the hospital advised her to check  Dr.
Brandners  courthouse records.  The trial judge  allowed  Hudsons
testimony  that  she reviewed and copied records from  which  she
concluded that Dr. Brandner had been abusive to his wife.
          I  know  that he jerked the phone out of  the
          wall.   I know that he stalked her.   I  know
          his  kids had stepped in between him and  his
          wife.
          
          And  what I read, he is violent.  And because
          of  reading that, I wasnt real sure  what  he
          was  capable  of doing to me.   Im  not  even
          related to him.
          
  The  trial  judge  overruled Dr. Brandners objection  that  the
testimony was hearsay, admitting it as evidence of Hudsons  state
of  mind.  In addition to allowing the testimony, the judge  also
admitted the records over Dr. Brandners objection.
          Dr.  Brandner argues that the domestic violence records
were  irrelevant because they occurred four years  prior  to  the
incident  with  Hudson and because the petitions were  dismissed.
He also contends that the records were highly prejudicial.7
          To  be  admissible,  evidence must  be  relevant  to  a
material  issue.8   The  trial  court  determined  that   Hudsons
testimony  regarding her reaction to the records was relevant  to
her  state of mind after the assault.  Dr. Brandner suggests that
because  Hudson did not thoroughly read the records, any distress
she experienced as a result of the records was unreasonable.  But
it  was  for  the  trier  of  fact to determine  whether  Hudsons
distress  was reasonable, and the testimony was relevant  to  the
distress  Hudson  experienced.  As a  result,  the  trial  courts
ruling  that the evidence was relevant to Hudsons state  of  mind
          was not an abuse of discretion.
          But  Alaska  Evidence Rule 403 provides that  otherwise
admissible  evidence may be excluded if its  probative  value  is
outweighed  by the danger of unfair prejudice, confusion  of  the
issues,  or  misleading the jury, or by considerations  of  undue
delay,  waste  of  time, or needless presentation  of  cumulative
evidence.   Dr.  Brandner  suggests that  the  domestic  violence
records were unfairly prejudicial because they could lead a trier
of  fact  to  assume  that he was guilty of the  battery  against
Hudson.
          Trial courts have broad discretion in applying the Rule
403 balancing test.9  In reviewing the trial courts decision,  we
balance  the  danger  of unfair prejudice against  the  probative
value  of the evidence to determine whether the potential  danger
predominated  so  greatly as to leave us  firmly  convinced  that
admitting  the challenged evidence amounted to a clear  abuse  of
discretion under Evidence Rule 403.10  But even where  the  trial
court  errs in admitting evidence, we will reverse only  if  that
error  was  not  harmless.11  A trial courts error  in  admitting
evidence is harmless when there is no reasonable likelihood  that
the admitted evidence had an appreciable effect on [the trier  of
fact].12  Dr. Brandner bears the burden of showing that prejudice
resulted  from  the trial courts admission of the  testimony  and
records.13
          While  this  would  have been a much  closer  and  more
troubling  question in a jury trial, we hold that  any  error  in
admitting the records was harmless.  In this case, the likelihood
of unfair prejudice was greatly reduced by the fact that this was
a  bench trial.14  Moreover, Judge Suddock indicated that he  had
not  read the records, stating that the records didnt really make
very   much  difference  and  concluding  that  he  was   totally
uninterested  in [Dr. Brandners] DV records . . .  [because]  the
incident  speaks for itself and should be judged by  itself.   In
other  words,  Judge Suddocks findings explicitly state  that  he
gave very little weight to the domestic violence records, even on
the  issue  of Hudsons state of mind.  Under these circumstances,
we hold that any error in admitting the records was harmless.
     B.   The   Trial  Courts  Award  of  Damages  for  Emotional
          Distress Is Not Clearly Erroneous.
          
          Dr.  Brandner  challenges the  trial  courts  award  of
$50,000  in  damages for emotional distress.  Dr. Brandner  notes
that  the  trial court found Hudsons reaction to be  unusual  and
suggests that the award was therefore erroneous.  He also  argues
that  his  actions  did  not  rise to the  level  of  intentional
infliction  of emotional distress and that damages for  emotional
distress  are  therefore generally inappropriate.   Dr.  Brandner
also  contests  the courts determination that he  caused  Hudsons
emotional distress.
          The  trial  court  found  that  Hudsons  injuries  were
unusual, but noted the eggshell plaintiff rule and concluded that
Dr.  Brandner  takes his plaintiff as he finds  her.   The  trial
court  properly  recognized  that whether  Hudsons  reaction  was
unusual was not relevant to the issue of damages.  In Glamann  v.
          Kirk, we recognized that [t]he defendant must take the victim as
the  defendant finds the victim and is liable for those  injuries
caused or aggravated by defendants negligence.15  While the extent
of  Hudsons  injury  may have been unusual or unpredictable,  Dr.
Brandner is nonetheless liable for all injuries that were  either
caused or aggravated by his actions.
          Dr. Brandners second argument, that his conduct was not
outrageous, is not relevant to the issue of compensatory  damages
for   emotional  distress.   He  cites  no  authority   for   the
proposition that emotional damages cannot accompany a battery  or
negligence claim, and we reject this argument.16  Alaska  Statute
09.17.010   details   the  boundaries  of  damages   awards   for
noneconomic  losses and contains no requirement that  conduct  be
outrageous before an award may be made.17
          Finally,  Dr.  Brandner  challenges  the  trial  courts
determination  that  he  caused Hudsons distress.   Dr.  Brandner
notes  Hudsons testimony that her review of the domestic violence
records  made  her  very fearful of who [Dr. Brandner]  is.   Dr.
Brandner claims that Hudsons emotional distress therefore did not
arise  out  of the incident, but out of her review of the  files.
He  concludes  that  there is no causal  connection  between  Ms.
Hudsons exacerbated emotions and Dr. Brandners dismissed domestic
violence  petitions  that occurred four years  earlier  with  Dr.
Brandners wife.
          But  the  trial court found that the domestic  violence
records didnt really make very much difference to [Hudsons] total
course.  Judge Suddock found that the incident itself shattered a
sense  of security, a sense of the predictability of the  day-to-
day . . . and caused [Hudson] to be a suffering person.  And that
suffering . . . is articulated by post traumatic stress disorder.
The  trial court also found that the emotional component  is  the
most  serious  aspect of [Hudsons] damage. . . . [T]hats  a  very
serious Pandoras Box that was opened . . . it has affected  [her]
and [her] whole being.
          The   trial  courts  award  of  damages  for  emotional
distress is not clearly erroneous.  The record supports the trial
courts  finding that the incident itself caused Hudson  distress.
Both  Hudson and her husband testified that Hudson was  withdrawn
and   troubled  immediately  following  the  incident.    Hudsons
coworker,  Hazel Poff, also testified that Hudson was very  quiet
and  upset  immediately after the incident.  Poff testified  that
since  the  day  of the incident, Hudsons demeanor  at  work  has
changed  significantly.  Poff indicated that Hudson  became  more
jumpy, a little more easy to anger . . . she was a lot more moody
[and] . . . wasnt herself at all.
          The  trial courts conclusion is also supported  by  the
testimony  of Dr. Anne Fleming.  Dr. Fleming testified  that  she
counseled  Hudson after the incident and diagnosed her with  post
traumatic  stress  disorder.  Dr. Fleming testified  that  Hudson
experienced   symptoms  of  depression,  symptoms   of   anxiety,
difficulty sleeping, and continual reexperiencing of the feelings
that  the  traumatic  event brought forth  .  .  .  .   She  also
testified  that  Hudson suffered . . . intense fear  .  .  .  and
helplessness  because of this event.  Hudson testified  that,  in
          addition to counseling, she takes medications for anxiety,
depression, and insomnia  none of which she required  before  the
incident.
          In light of Dr. Flemings testimony that Hudson suffered
from  post traumatic stress disorder, and testimony from  Hudson,
her  husband,  and  a coworker that Hudson was upset  immediately
after  the  incident,  the trial courts finding  is  not  clearly
erroneous.  We therefore affirm the damages awarded for emotional
distress.
     C.   Clear  and  Convincing  Evidence  Supports  the  Courts
          Punitive Damages Award.
          
          The  trial  court awarded $25,000 in punitive  damages.
Dr. Brandner argues the trial court applied the wrong standard of
review  and  that clear and convincing evidence does not  support
the award.
          Punitive damages serve to punish the wrongdoer  and  to
deter  the  wrongdoer  and others like  him  from  repeating  the
offensive  act.18  To support a claim for punitive  damages,  the
plaintiff  must  show by clear and convincing evidence  that  the
defendants conduct was outrageous, such as acts done with malice,
bad motive, or reckless indifference to the interests of another.19
          Dr.  Brandner  challenges the  courts  conclusion  that
clear  and  convincing  evidence supports an  award  of  punitive
damages  in this case.  He asserts that although the trial  court
found  an   intentional tort in the limited and technical  sense,
the  behavior  at  issue was not outrageous because  he  did  not
intend to physically harm Hudson and because he did not act  with
malice.20
          The   trial   court  recognized  that  the  clear   and
convincing  evidence standard applied.21  It  reasoned  that  its
finding that Dr. Brandner had committed civil battery gets one  a
long  way[] along the path to . . . punitive damages.  The  court
concluded   that  a  complaint  for  intentional  infliction   of
emotional distress would have survived.  The court reasoned that
          [o]nce you get [] an employer or a person  in
          a  position of authority, actually physically
          moving  an employee around as if she  were  a
          piece of property to be placed at his whim in
          a  different  locale, I think  you  enter  an
          entirely  different ballpark.  And  so  I  am
          satisfied  that  this event  was  unjustified
          enough,  outrageous enough,  entailed  enough
          indifference to Ms. Hudsons interest[] . .  .
          [that]  [i]t  justifies an award of  punitive
          damages.
          
  In its written order, the court stated that there was clear and
convincing  evidence  that  Dr.  Brandners  conduct  was   highly
egregious and reckless.
          We conclude that clear and convincing evidence supports
the trial courts determination.  Hudson testified that:
          [Dr.  Brandner]  grabbed me by  the  arm  and
          [dragged] me down the hall and not  only  did
          it  hurt, my arm was hurting so bad I thought
          it  was going to fall off, it embarrassed  me
          to  death  to think that I would  be  treated
          that  way  when I had worked there that  many
          years  and had been treated with [the] utmost
          respect.  .  . . All I said was his  name.  I
          couldnt understand why he was dragging me.  .
          .  .  He  back[ed] through the door  [to  the
          office], pulling me through the door and then
          escorting me to my office. . . . He shoved me
          in  the chair.  My foot got tangled up in  my
          office  chair  and  when  he  turned  me,  it
          twisted my knee.
          
The  trial  court  found Hudson to be credible.   Her  testimony,
along  with the corroborating testimony offered by her coworkers,
supports  the  courts finding that Dr. Brandner  committed  civil
battery,  as  well as its conclusion that a claim for intentional
infliction of emotional distress would have survived.
          The  trial  courts finding that Dr. Brandners  behavior
was  outrageous was also based on the disparity in power  between
Hudson  and  Dr.  Brandner.  As the trial  court  discussed,  Dr.
Brandner  was  in  a  position of authority  in  [the]  hospital,
whereas  Hudson  was a member of the clerical staff.   The  trial
court  found  that  in  light  of  their  disparate  status,  Dr.
Brandners  gratuitous manhandling of Hudson  was  outrageous  and
merited an award of punitive damages.  Moreover, because we  have
held  that the test for punitive damages is analogous to the test
for  intentional  infliction  of emotional  distress,  the  trial
courts  conclusion  that  a claim for IIED  would  have  survived
further  supports the award of punitive damages.22  Finally,  the
trial  courts  determination that the conduct was  outrageous  is
supported  by  the  fact  that Dr. Brandners  conduct  led  to  a
criminal  charge of assault and battery, on which he  received  a
deferred  prosecution.23  In sum, clear and  convincing  evidence
supports the trial courts determination that Dr. Brandners action
was outrageous.









          D.   The  Punitive Damages Award Is Not the Product  of
               Passion or Prejudice.
               
          Dr. Brandner argues that the punitive damages award was
the  result  of passion or prejudice, contending that  the  trial
courts  reduction in the award from $50,000 at the conclusion  of
the  trial to $25,000 in his written order is evidence  that  the
court  was  influenced by passion.24  Dr. Brandner also maintains
          that the trial court improperly based the punitive award on
personalized analogy and that the trial courts personal  feelings
. . . shadowed the decision.
          We  reject this argument.  Nothing in the trial  courts
rulings suggests passion or prejudice.  Contrary to Dr. Brandners
allegation  of passion or prejudice, the trial courts willingness
to  reduce  the  punitive  damages  award  from  $50,000  at  the
conclusion  of trial to $25,000 at the time of the written  order
demonstrates its deliberate reflection and concern for fairness.25
Moreover, the trial courts thoughtful and carefully written order
belies the notion that it was influenced by passion or prejudice.
          We  also  reject Dr. Brandners argument that the  trial
courts  use of reasoning by analogy reflected prejudice.  Rather,
the  court  simply used analogy to explain its finding  that  the
battery  constituted outrageous behavior.   The  use  of  analogy
again  reflects the considerable thought and care with which  the
trial  court  issued  its  decision.  Because  the  trial  courts
punitive   damages   award   reflects  a   thoughtful,   balanced
consideration  of  the issues, we reject Dr.  Brandners  argument
that  it  was the product of passion or prejudice.  We  therefore
affirm the award of punitive damages.

V.   CONCLUSION
     Because  any  error  in  admitting  Dr.  Brandners  domestic
violence records was harmless error, and because the trial  court
did  not  err in its award of damages, we AFFIRM the decision  of
the trial court in all respects.

_______________________________
     1      A  deferred  prosecution  is  a  judgment  placing  a
convicted  defendant on probation, the successful  completion  of
which   will   prevent  entry  of  the  underlying  judgment   of
conviction.  Blacks Law Dictionary 859 (8th ed. 2004).

     2     The  court  explained  that  after  consideration,  it
decided  that  $50,000 was excessive under the circumstances  and
that  $25,000  is  a sum that still carries with it  considerable
force,  but  that  is more proportionate to the  wrong  that  was
committed.

     3    Glover v. Glover, 92 P.3d 387, 391 (Alaska 2004).
          
     4    Pluid v. B.K., 948 P.2d 981, 983 (Alaska 1997).

     5    Id.  (quoting  Morrison v. State,  516  P.2d  402,  405
          (Alaska 1973)).
          
     6    Id.

     7    Dr. Brandner also contends that the records should have
been  excluded  as inadmissible character evidence  under  Alaska
Evidence  Rule  404(a).  This objection is  without  merit.   The
trial  court  did  not admit the evidence as character  evidence.
Rather, it admitted it for the limited purpose of showing Hudsons
state of mind.

     8    To be of sufficient relevance for admission, testimony,
documents or other evidence must have some tendency in reason  to
establish  a  proposition material to  the  case.   Hutchings  v.
State, 518 P.2d 767, 769 (Alaska 1974).

     9    Bluel v. State, 153 P.3d 982, 986 (Alaska 2007).
          
     10    Id. at 987.
          
     11     Alderman v. Iditarod Props., Inc., 104 P.3d 136,  142
(Alaska 2004).

     12    Id.

     13    Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000).

     14     See Colgan v. State, 711 P.2d 533, 534 (Alaska  1985)
(noting  that  the  possibility  of  any  actual  prejudice   was
significantly diminished because [defendant] elected  to  proceed
with a non-jury trial).

     15    29 P.3d 255, 261 (Alaska 2001).
          
     16    Even if outrageous conduct were required, Dr. Brandners
challenge  would fail.  As we explain in detail below, we  uphold
the  trial  courts determination that Dr. Brandners  conduct  was
outrageous.

     17    AS 09.17.010 provides:

               (a)  In an action to recover damages for
          personal injury or wrongful death, all damage
          claims   for  noneconomic  losses  shall   be
          limited  to compensation for pain, suffering,
          inconvenience,      physical      impairment,
          disfigurement,  loss of  enjoyment  of  life,
          loss  of  consortium, and other  nonpecuniary
          damage.
          
               (b)   Except  as provided under  (c)  of
          this  section, the damages awarded by a court
          or  a jury under (a) of this section for  all
          claims, including a loss of consortium claim,
          arising  out of a single injury or death  may
          not  exceed  $400,000 or the injured  persons
          life   expectancy  in  years  multiplied   by
          $8,000, whichever is greater.
          
               (c)   In  an action for personal injury,
          the  damages awarded by a court or jury  that
          are  described under (b) of this section  may
          not  exceed  $1,000,000 or the  persons  life
          expectancy  in years multiplied  by  $25,000,
          whichever  is greater, when the  damages  are
          awarded   for   severe   permanent   physical
          impairment or severe disfigurement.
          
               (d)   Multiple injuries sustained by one
          person as a result of a single incident shall
          be treated as a single injury for purposes of
          this section.
          
     18     Chizmar  v.  Mackie, 896 P.2d 196, 209 (Alaska  1995)
(quoting  State  Farm Mut. Auto. Ins. Co. v.  Weiford,  831  P.2d
1264, 1266 (Alaska 1992)).

     19     Chizmar,  896  P.2d  at 210 (quoting  Lee  Houston  &
Assocs.,  Ltd. v. Racine, 806 P.2d 848, 856 (Alaska  1991)).   AS
09.17.020 provides, in relevant part:

               (a)   In  an action in which a claim  of
          punitive  damages is presented  to  the  fact
          finder,  the  fact  finder  shall  determine,
          concurrently with all other issues presented,
          whether punitive damages shall be allowed  by
          using  the standards set out in (b)  of  this
          section. . . .
          
               (b)   The fact finder may make an  award
          of  punitive  damages only if  the  plaintiff
          proves by clear and convincing evidence  that
          the defendants conduct
          
                    (1)  was outrageous, including acts
          done with malice or bad motives; or
          
                    (2)        evidenced       reckless
          indifference  to  the  interest  of   another
          person.
          
     20     Dr.  Brandner  does not challenge  the  trial  courts
finding  that  his  actions were negligent or  constituted  civil
battery.

     21    Because the trial court explicitly noted that the clear
and convincing evidence standard applied to punitive damages,  we
reject  Dr.  Brandners argument that the trial court applied  the
wrong standard.

     22    Fyffe v. Wright, 93 P.3d 444, 455 (Alaska 2004) (noting
that the sort of conduct that must be established to recover on a
claim  of intentional infliction of emotional distress is similar
to that required to recover punitive damages).

     23     Dr.  Brandner also contends that he did not act  with
reckless  indifference.  But AS 09.17.020(b)(1)(2)  provides  for
punitive   damages  where  conduct  is  outrageous  or  evidences
reckless  indifference.   Because  we  affirm  the  trial  courts
determination that Dr. Brandners conduct was outrageous, we  need
not  reach  Dr.  Brandners argument that  he  did  not  act  with
reckless indifference.

     24     We  reject Hudsons argument that Dr. Brandner  waived
this  issue by failing to adequately brief the argument,  failing
to  include it in his points on appeal, and failing to  raise  it
before  the trial court.  Although Dr. Brandner does not use  the
phrase passion or prejudice in his points on appeal, two of those
points  do challenge the superior courts punitive damages  award.
And  Dr.  Brandners briefing on the issue of passion or prejudice
is  coherent  and supported by authority.  Moreover,  because  he
appeals  the final judgment itself, there is no requirement  that
this  issue  have been raised below.  See Alaska R. App.  P.  202
(providing that appeal may be taken from final judgment).

     25    The written order explained the reduction as follows:
          
          This  court  believes  that  the  tentatively
          announced punitive damage award of $50,000 is
          excessive  under all the circumstances.   The
          court  instead  awards $25,000  for  punitive
          damages.   That  is a sum that still  carries
          with  it considerable force, but that is more
          proportionate   to   the   wrong   that   was
          committed.
          
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