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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
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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