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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Noffke v. Perez (12/28/2007) sp-6216

Noffke v. Perez (12/28/2007) sp-6216

     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,


) Supreme Court No. S- 12185
Appellant, )
) Superior Court No. 3AN-04-11337 CI
v. )
) O P I N I O N
) No. 6216 December 28, 2007
Appellees. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances: Paul W. Waggoner, Law Offices of
          Paul   Waggoner,  Anchorage,  for  Appellant.
          Michaela   Kelley   Canterbury,   Kelley    &
          Canterbury, LLC, Anchorage, for Appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          FABE, Chief Justice.

          This  appeal  arises from a car accident on  Lake  Otis
Parkway in Anchorage in which Dora Noffkes vehicle struck  a  car
driven  by  Jose  Perez.  A jury awarded Jose Perez  $24,000  and
passenger  Neyda Perez $54,000 for past and future  damages,  and
Dora  Noffke  appeals  several decisions of the  superior  court.
Noffke  argues that the superior court erred by excluding certain
medical records exhibits, requiring her expert witness to produce
his   income   tax  records,  granting  a  directed  verdict   on
comparative negligence to the Perezes, and unnecessarily delaying
entry  of  final  judgment.  Because the trial  courts  erroneous
decision  to  exclude Jose Perezs medical records was prejudicial
and  because there was sufficient evidence to send the  issue  of
comparative negligence to the jury, we reverse and remand  for  a
new trial.
          On  May  10, 2003, Dora Noffke was traveling  north  on
Lake  Otis Parkway.  She pulled into the left-hand turn  lane  to
make a left turn into a strip mall.1  There was evidence that the
right-hand southbound lane of Lake Otis was blocked due  to  road
construction  south of the accident site, causing  congestion  in
the  left-hand  southbound lane.  The right-hand southbound  lane
was  mostly clear at the accident site.  A motorist in the  left-
hand  southbound lane waved at Noffke to signal  that  she  could
turn  in front of him across the oncoming traffic.  Noffke failed
to  check  if the right-hand southbound lane was empty  when  she
made  the  turn  across the southbound lanes.  Noffke  turned  in
front  of  the  car  driven  by Jose Perez,  who  was  proceeding
southbound  in the right lane, causing a collision.   Noffke  and
her  passenger,  Bobby Rice, were taken to the  hospital.   Neyda
Perez,  the  passenger in the Perez car, was also  taken  to  the
hospital  from  the  scene,  while  Jose  rode  along  in  Neydas
ambulance and was checked at the emergency room.
          Trial  was  held  before  Superior  Court  Judge   Mark
Rindner.   Noffke conceded negligence, and Judge Rindner  granted
the  Perezes  request  for a directed verdict  on  the  issue  of
comparative  negligence.  Thus, the only questions left  for  the
jury  were whether Noffke was the legal cause of injury  to  Jose
and  Neyda and the amount of damages to which Jose and Neyda were
entitled for past economic loss, as well as past and future  non-
economic  loss.  The jury awarded Jose $24,000 and Neyda $54,000.
Judge  Rindner  entered final judgment on January  3,  2006,  and
Noffke appeals.
          We  review the superior courts evidentiary rulings  for
abuse  of  discretion.2  The courts discovery  rulings  are  also
reviewed  for  an abuse of discretion.3  An abuse  of  discretion
will  be  found  when  we  are left  with  a  definite  and  firm
conviction  after reviewing the whole record that  the  discovery
ruling  was  erroneous.4  The superior courts award of  discovery
sanctions  is  reviewed  for abuse of  discretion.5   The  courts
decision  to  admit  expert testimony is reviewed  for  abuse  of
discretion, but where the admissibility of expert testimony turns
on  a  question of law, we apply our independent judgment.6  When
reviewing  an order granting a directed verdict, we  must  decide
whether the evidence, when considered in the light most favorable
to the nonmoving party, is such that reasonable persons could not
differ in their judgment.7
     A.   It  Was  Error  To  Exclude  Noffkes  Proposed  Medical
          Records   Exhibits  and  To  Refuse  Noffkes  Requested
          Continuance To Subpoena Records Custodians.
          At the pretrial conference on November 18, 2005, Noffke
     requested that the parties stipulate to the authenticity and
foundation  of  a  number  of exhibits relating  to  Jose  Perezs
medical   treatment.   Although  Perezs  attorney  reserved   her
objections  to the relevancy of the medical records  exhibits  in
question,  the parties agreed that it would not be necessary  for
Noffke to subpoena the records custodians for trial:
          MR.  WAGGONER [Noffkes attorney]:  .  .  .  I
          would like an answer about the foundation for
          medical records because it makes a difference
          as  to who Im going to subpoena.  Theyre just
          medical  records  and I can clearly  subpoena
          enough  people to get them all into evidence,
          but  I  was just wondering what the plaintiff
          is going to require.
          . . . .
          THE  COURT:  . . .[T]he question  is  whether
          youre  going  to  say bring  in  the  records
          custodian for each and every provider of  the
          medical  records to sit up here for  five  or
          ten  minutes  to testify that these  are  the
          medical  records  of  the plaintiffs,  theyre
          kept  in  the ordinary course of business  to
          satisfy the requirements of the hearsay  rule
          and  then  their authenticity  will  be  done
          then, or everybody can say they dont have any
          objections to authenticity, theyre  reserving
          objections  to  relevance and  that  sort  of
          stuff and you dont need witnesses.  Ill  rule
          on  the relevance as I hear the testimony and
          what its being offered for.
          MS. KELLEY CANTERBURY [the Perezes attorney]:
          I  dont  have a disagreement.  I  agree  that
          those    are   the   records.    Theres    no
          authenticity problems.
          . . . .
          MR.  WAGGONER: Thats fine.  I will  stipulate
          to the foundation of medical records.
          THE  COURT: Does everybody agree we dont need
          that  the foundation is established but  that
          objections  as to relevance and other  things
          are not established but that nobody needs  to
          produce custodians of medical records  to  go
          through  the  drill of doing that?   I  think
          thats all youre both asking for.
          MR. WAGGONER: Right.
          Relying  on this agreement, Noffke sought at  trial  to
introduce evidence of the Perezes preexisting medical conditions,
asserting, [i]ts my understanding theres no foundation  objection
to  these  older medical records, Your Honor.  At that time,  the
trial  court  instructed  Noffkes  attorney  to  pare  down   the
exhibits,  directing  Noffke to narrow  [the  exhibits]  down  to
matters  that might have some relevance [] to this case in  order
to avoid dumping all of the records on the jury.
          During  her  cross-examination of  Jose  Perez,  Noffke
again sought to introduce Exhibit M, which contained a number  of
exhibits  that were prepared to determine the Perezes eligibility
for  disability benefits from the Social Security Administration.
The  trial court advised: Youre going to have to lay a foundation
for  that.   The  trial  court also instructed  Noffke  to  break
Exhibit  M into smaller exhibits, warning, Im not admitting  that
unless  theres [a basis] laid for portions of it  .  .  .  either
[for] relevance or otherwise.
          After   Jose  Perez  completed  his  testimony,  Noffke
complied with the trial courts instruction and divided Exhibit  M
into  seven smaller exhibits, marked M1 through M7.  The  Perezes
objected  to  all  of these exhibits as hearsay,  asserting  that
[t]hese  arent  medical records and complaining that  Noffke  had
failed to examine Jose Perez about them when he was still on  the
witness  stand.  When the trial court expressed doubts about  the
exhibits, Noffke responded, [t]heres no foundation objection  and
some of the other M records are definitely medical records and  I
think they should be admitted.
          Although  the  trial court admitted those documents  in
the  exhibits  that contained Jose Perezs signature,  such  as  a
disability  report  form  that  Perez  submitted  to  the  Social
Security  Administration in which he provided  information  about
his  medical  conditions, the trial court disallowed exhibits  M3
through  M7 on hearsay grounds, noting that they had been gleaned
from  Jose  Perezs  Social Security file and that  there  was  no
evidence establishing that they were medical records:
          THE  COURT: [Exhibit M3] is hearsay and I see
          no  exception for it.  The fact  that  its  a
          medical  record  hasnt  been  established  by
          testimony.   It  may well  be  one,  but  you
          needed to call somebody to do that. . . . You
          havent established that its not hearsay,  Mr.
          . . . .
          MR.  WAGGONER: You say [Exhibit M4 is] not  a
          medical record?
          THE   COURT:   Im  saying  that  you   havent
          established [through] eviden[ce] that  its  a
          medical record  the circumstances under which
          it  was  created.   You  need  a  witness  to
          testify that this is a medical record kept in
          the regular course of business. . . . And all
          we know is that it comes from Social Security
          records,  not  even  from a  medical  doctors
          records.  So youve got to  I realize this may
          seem like form over substance, but youve  got
          to  establish a hearsay exception  for  these
          documents to be admitted and you havent.
          . . . .
          MR.   WAGGONER:   Yeah.   At   the   pretrial
          conference,   I  specifically   asked   about
          foundation for medical records.....
          THE COURT:  And this is not a foundation.....
          MR. WAGGONER:  ......for the purpose.....
          THE  COURT:  This is not a foundation ruling.
          Its a hearsay ruling.
          The   trial  court  went  on  to  exclude  a   Northern
Rehabilitation Services report, Exhibit G, ruling:  You  have  to
establish not just that theyre medical records but theyre kept in
the regular course of business.  The trial court also declined on
hearsay  grounds  to admit Westchester Physical Therapy  records,
Exhibit  K; Independent Medical Evaluation reports of Dr.  James,
Exhibits  L  and  P;  and an evaluation for work  by  Dr.  Lipke,
Exhibit S.
          The next morning before closing arguments, Noffke again
attempted  to introduce her exhibits.  The trial court reiterated
that  its ruling was not a foundation ruling but a hearsay ruling
and  refused  to admit the exhibits.  Noffke asked  for  a  short
continuance of one business day, from Friday to Monday,  to  call
the  records custodians to lay the foundation for the  unadmitted
exhibits;  the  trial  court denied this  request.   Noffke  then
sought  to introduce Exhibit I, Jose Perezs medical records  from
Kremer Chiropractic in 1998-1999.  The trial court admitted  only
a  medical information form, which had been signed by Jose  Perez
and on which Jose had described his symptoms and medical history,
characterizing it as an admission.  But the court did not  permit
other  chiropractic  records, including a radiology  consultation
and the chiropractic clinic patient history form.
          Noffke  argues that the medical records exhibits should
have  been  admitted,  maintaining that the  parties  waived  any
foundation  objections when they entered the stipulation  at  the
pretrial  conference.  Noffke reasons that if a party is required
to  call  a records custodian to establish that a document  is  a
business  record,  then waiving foundation objections  serves  no
purpose.   Noffke  also contends that once she learned  that  the
trial  court  would  require  testimony  to  establish  that  the
proposed  exhibits  were business records,  despite  the  earlier
stipulation  on  foundation, she should  have  been  granted  the
requested  one-day  continuance to  allow  her  to  subpoena  and
procure the testimony of the various records custodians.   Noffke
maintains  that  in  the  context of the disputed  exhibits,  the
stipulation  as to the foundation of the medical records  removed
the  need  to  call  witnesses to establish the business  records
exception to the hearsay rule.
          Our  analysis begins with a parsing of what the parties
agreed upon in their November 18, 2005 pretrial conference.   The
conference included an informal attempt, under Alaska Civil  Rule
36,  to  [r]equest[] that documents which clearly fall  within  a
hearsay  exception be admitted without having to put the  record-
keeper  on the stand, one of the central purposes for which  Rule
36  was  designed.8   The  transcript reveals  that  the  parties
arrived  at  a  stipulation that [t]here  [are]  no  authenticity
problems,  the  foundation is established, and  nobody  needs  to
produce custodians of medical records.
          The  wording of this oral stipulation was unfortunately
imprecise.  The parties not only conflated the terms authenticity9
and foundation,10 but also vaguely referred to the subjects of the
stipulation   as  medical  records.   Calling  Noffkes   proposed
exhibits  medical  records  was confusing  because  the  exhibits
Noffke  attempted  to  introduce were not obtained  from  doctors
offices,  but  rather  consisted  primarily  of  medical  records
prepared to determine the Perezes eligibility for Social Security
disability benefits.  The Perezes did not discuss the  origin  of
the  exhibits during the pretrial conference and entered into the
stipulation having had ample opportunity to review and object  to
the  records.  Later, when it became clear to the court that  the
records  Noffke  wished  to introduce were  not  typical  medical
records,  the court ruled that the foundational requirements  had
not yet been met.
          At trial, the Perezes argued that some of the documents
offered  by  Noffke  were not medical records because  they  were
letters  from doctors, implying that because the records did  not
take  the form of traditional medical charts, they could  not  be
admissible because they were hearsay.  But in Dobos v. Ingersoll,
we  recognized  that  medical records,  including  doctors  chart
notes, opinions, and diagnoses, fall squarely within the business
records exception to the hearsay rule.11  Evidence of the Perezes
medical  treatment and diagnosis, even in the form of  a  doctors
letter  to  the  Social Security Disability  Determination  Unit,
could   be  admissible  under  our  holding  in  Dobos,  provided
litigants  establish  that it was the  regular  practice  of  the
doctor to prepare and send evaluation reports to the unit.12
          A  review of the parties agreement reveals that Noffkes
reliance  on  the  pretrial  stipulation  was  appropriate.   The
foundation requirements for the business records exception to the
hearsay  rule13 are as follows: first, the records must be  of  a
regularly conducted business activity; second, the record must be
regularly kept; third, the source of information must be a person
who  has  personal knowledge; fourth, the information  must  have
been recorded contemporaneously with the event or occurrence; and
fifth,  foundation testimony by the custodian of the record  must
be provided.14  The parties broad stipulation during the pretrial
conference clearly indicated that Noffke would not be required to
subpoena  a  records  custodian  to  testify  to  each  of  these
foundation requirements.  As such, the Perezes stipulated to  the
admissibility of the records, at least for hearsay purposes.15  In
so doing, they waived any foundation or authenticity objections.
          The  Perezes  further argue that the  business  records
exception  does not apply because the reliability of the  offered
          documents was questionable, and the Perez[e]s were not able to
cross[-]examine  the content of the documents.  But  the  Perezes
stipulated  to  the foundation of the documents in  the  pretrial
hearing; the only difference in the exhibits between the time  of
the  stipulation and the time of this objection was that they had
been   divided  into  subparts  according  to  the  trial  courts
          The trial court expressed concern that records obtained
from the Social Security Administration do not qualify as medical
records  within  the business records exception  to  the  hearsay
rule.   But  a  business  record can come  from  any  business,16
including  a  doctors office, a hospital, or the Social  Security
Administration.   We  held  in  Liimatta  v.  Vest   that   while
communication  between medical doctors and  the  Social  Security
Disability Determination Unit is not a medical record of the type
often admitted under the business records exception, a record  of
such  communication  can be admitted as a  business  record  when
parties  establish  that  it was the  regular  practice  of  [the
doctor]  to  prepare and send evaluation reports  to  the  Social
Security  Disability  Determination  Unit.17   Noffke  reasonably
relied upon the stipulation to conclude that she was not required
to  lay such a foundation.  The stipulation fairly indicated that
if  the Perezes wanted to exclude the records, they would have to
rely on some non-hearsay basis to do so.
          The  trial court still must determine the relevance  of
the  documents,  as well as whether they will  be  cumulative  or
confusing  to  the jury.18  The Perezes expressly reserved  their
objections  on  these  other grounds.  But  because  medical  and
Social Security records are admissible under the business records
exception to the hearsay rule, and the parties stipulated to  the
foundation  of  the records, the court should have  admitted  the
records,  subject  to any relevance objections,  Alaska  Rule  of
Evidence  403 balancing, and potential redactions to ensure  that
the records would not be confusing to the jury.
          Even  though  it  was  error to exclude  the  exhibits,
Noffke must still show that the error was harmful or prejudicial.19
The test for determining whether an error was harmless is whether
on  the  whole  record  the error would have  had  a  substantial
influence on the verdict of a jury of reasonable laymen.20  After
oral  argument  on  appeal,  the parties  were  asked  to  submit
additional  briefing  on  the issue of harmless  error.   One  of
Noffkes   defense  theories  at  trial  focused  on  the  Perezes
preexisting medical conditions.  Because this defense was central
to  her  case and because inclusion of the medical records  could
have  affected  the  jurys damages award, we  conclude  that  the
exclusion of Noffkes proposed exhibits was prejudicial error.
          Jose  Perez testified that in 1991 or 1992 he hurt  his
back  at  work picking up trash.  He stated that the back  injury
was  a  disc  injury but indicated that it no longer  caused  him
problems.  Jose further testified that he was on Social  Security
disability  because of his previous back injury.   In  describing
the  treatment regime for that injury, Jose testified that he was
sent  to the YMCA to do the treadmill and the bicycle . .  .  for
about 15 sessions.
          Noffke  alleges that Joses testimony at trial  differed
significantly  from  what was indicated in his  medical  records.
The  Social Security records show that the injury to Perezs  back
actually  occurred in October 1994.  The medical  records  reveal
that  Jose  Perez saw five different doctors for treatment  after
the  initial injury to his back and before the car accident.   In
Dr.  Levines report a year after the back injury, he  notes  that
Jose  reported that he was experiencing pain at a level of  seven
to  eight  out  of ten.  Jose also received two epidural  steroid
injections  for  the  back injury, with no effect.   The  doctors
evaluation also states that the pain had a nonphysiologic  nature
and there was possible somatic overlay in the pain.
          The   excluded   records  relating   to   Jose   Perezs
preexisting condition could have affected the jurys verdict.  The
difference  between Jose Perezs testimony about his prior  injury
and  what  the  exhibits showed regarding his injury  could  have
affected Joses credibility.  Additionally, the information in the
exhibits  could  be  read as indicating that Joses  injuries  and
treatment  were  much  more  extensive  than  revealed  in  Joses
testimony.   Given that Joses damages are affected  by  how  much
treatment he would need to return him to his pre-accident  state,
the  exhibits are important evidence of Joses pre-accident  state
and  therefore  could have changed the verdict  of  a  reasonable
          Following  the trial courts rulings excluding  evidence
of the Perezes preexisting medical conditions, Noffke proposed to
the  court  a  way  to  accommodate the  Perezes  concerns  about
foundation:  she  requested a one-day  continuance  to  call  the
records  custodians to establish foundation.   The  court  denied
this  request.  We find that the trial courts ruling that  Noffke
could  not  have  a  one-day  continuance  to  call  the  records
custodians was error.  Any doubts about the authenticity  of  the
records  should  have been resolved either through  the  pretrial
stipulation  or  by  allowing Noffke  to  subpoena  the  relevant
custodians  of  records.   Given the  confusion  surrounding  the
pretrial stipulation and the relevance of the Perezes preexisting
medical conditions to the question of damages, it was prejudicial
error  for  the court to deny Noffke the opportunity to  call  in
records custodians to lay the foundation for the admissibility of
the exhibits.
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Requiring Noffkes Expert To Produce Tax Returns  Before
          Allowing the Expert To Testify.
          Noffkes  expert,  Dr.  Richard  Peterson,  performed  a
review  of  Jose  and Neydas medical records.  In discovery,  the
Perezes  served Noffke with a request for production, asking  for
Dr.  Petersons  income  from  the  company  he  worked  for,  The
Independent  Medical Evaluators (TIME), for the years  2002-2005.
The  request sought Dr. Petersons tax returns, as well as the tax
returns   for  TIME  for  the  same  time  period.   The  Perezes
originally  filed  an  expedited motion to quash  the  videotaped
deposition  of  Dr.  Peterson until Noffke  complied  with  their
request for production of his tax returns.  The trial court noted
          that it had compelled experts tax returns relating to income
earned  as  expert witnesses in similar cases but that TIMEs  tax
returns would not ordinarily be required unless Dr. Peterson  was
also  a  partner  or owner of TIME.  Noffke opposed  the  motion,
arguing  that  requiring defense experts  to  produce  their  tax
returns  would  have a chilling effect on experts, leaving  fewer
experts willing to testify.  Noffke also argued that evidence  of
bias  could be presented without requiring the expert to  produce
his tax returns.
          The  trial  court  ruled that the Perezes  request  for
production  of the tax returns of both TIME and Dr. Peterson  was
proper  and  that  the Perezes were entitled to the  information.
The  trial  court  disagreed that requiring such tax  information
would chill the ability of parties to obtain expert witnesses and
found  that  the tax returns would be relevant to show  potential
bias.   The  trial  court  then granted  the  Perezes  motion  to
postpone  the  deposition  of Dr. Peterson  until  the  requested
information  had  been provided.  The Perezes were  also  awarded
$900  in  attorneys  fees as a sanction for  Noffkes  failure  to
provide the discovery.  Noffke then moved for reconsideration  of
the  sanction.  In denying the motion, the court noted  that  the
$900  sanction  was  based  on  the  time  the  Perezes  attorney
reportedly  spent  on  the  motion  practice  and  the   relative
reasonableness of the parties positions.
          Dr.  Peterson  and TIME filed a motion to intervene  in
order  to  obtain a protective order for their financial records.
Dr.  Peterson and TIME expressed their willingness to produce the
records  if the court issued a protective order limiting the  use
of  the  information  to  this case and keeping  the  information
confidential.   The trial court directed the parties,  TIME,  and
Dr.  Peterson to enter into a confidentiality agreement regarding
the  tax records.  Noffke then indicated in a status report  that
she would not produce the tax returns of TIME and Dr. Peterson.
          The  issue  came  up again at the pretrial  conference.
The  trial  court offered the parties a continuance of the  trial
date, scheduled to start in late November 2005, in order to allow
Dr.  Peterson to produce the records and be deposed  in  January.
But  Noffke  reaffirmed  that  she  would  not  comply  with  the
discovery  order.   The trial court indicated that  Dr.  Peterson
would  not  be  permitted to testify without first providing  the
required discovery including his tax records:
          THE COURT: Excuse me, Mr. Waggoner.  Lets get
          that  record real, real clear about this.   I
          did  not  strike  your expert  witness.   You
          indicated that you would not comply  with  my
          orders  in this court and you were not  going
          to  have  the  witness  testify  under  those
          MR. WAGGONER: Right.
          THE  COURT: That was what the indication  was
          and I offered you a continuance if you wanted
          to  have your expert comply with my order  to
          get the testimony of your expert when he next
          came  through  town and could be  deposed  so
          that  he  could testify in this trial.   That
          opportunity was always available to you,  and
          so  youre  the  one  who made  the  strategic
          decision for reasons that you chose that  you
          werent going to comply with that order.
          MR.  WAGGONER:  Right.  I  agree  with  that.
          Youve  stated it right.  I  its my view  that
          your  order  is  improper and  thats  why  we
          wouldnt comply with it and the effect of that
          was that my expert witness was stricken.
          Noffke  argues that the trial court erred  in  ordering
Dr.  Peterson  and  TIME  to  produce their  tax  returns  before
allowing  Dr.  Peterson to testify.  Noffke also objects  to  the
$900 discovery violation fine.
          In  general,  our  rules  favor  a  system  of  liberal
pretrial  discovery.22   Alaska  Civil  Rule  26  provides   that
[p]arties  may  obtain  discovery  regarding  any  matter[]   not
privileged  which is relevant to the subject matter  involved  in
the  pending action. . . .  Income tax returns are not privileged
from  discovery  under Alaska statute or case law.23   Here,  the
trial court determined that the tax returns were relevant to show
potential  bias on the part of defense expert Dr.  Peterson.   As
the trial court noted, while an expert witness might not normally
be  required to turn over their financial information, there  may
be  a  plausible  argument  that the  witness  generates  such  a
significant  portion of his or her income from a particular  side
or   particular  attorney  that  the  experts  impartiality   can
reasonably  be  questioned.   In  such  cases,  the  trial  court
reasoned  that the tax returns are relevant and thus discoverable
under Rule 26.
          But  where  the matters at issue in a discovery  ruling
are potentially protected by the right to privacy, merely showing
that the matter is relevant and not protected by a privilege does
not necessarily guarantee that the matter is discoverable.  Trial
courts must also balance the plaintiffs right to discovery . .  .
with  the  .  .  .  [experts]  right of  privacy.24   The  Alaska
Constitution  provides strong protections for  matters  in  which
individuals have a subjective expectation of privacy that society
is prepared to recognize as reasonable.25  Dr. Peterson has argued
that  he has a right to privacy in his tax returns, and we assume
that   his   expectation  is  one  society  would  recognize   as
          In  DeNardo  v. ABC Inc. RVs Motorhomes, we  held  that
parties  income  tax  returns are sometimes  discoverable.26   We
explained that [t]he right to privacy is not absolute, and that a
party   who  brings  a  lawsuit  [may  be  required]  to   reveal
information  that is relevant to his or her claims,  even  though
the information may otherwise be private.27  Expert witnesses are
not always required to disclose their income tax returns, as they
may  not always be relevant.28  But as Judge Rindner pointed out,
          the expert witness in this case was not [a] treating physician[]
brought  fortuitously into this litigation but . . .  a  business
offering its services with the full understanding that litigation
is  ongoing.   The  trial court determined that  the  income  tax
returns  were  relevant and that production of the returns  would
help  clarify any stake the witness might have in the outcome  of
the case.
          In  Jones v. Jennings, we were faced with a request for
production of police officers personnel files.29  Recognizing that
the  officers  had an expectation of privacy in  their  personnel
files, we adopted the following test:
          (1)  does  the  party seeking to come  within
               the   protection   of   the   right   to
               confidentiality   have   a    legitimate
               expectation   that  the   materials   or
               information will not be disclosed?
          (2)  is  disclosure nonetheless  required  to
               serve a compelling state interest?
          (3)  if  so,  will  the necessary  disclosure
               occur  in  that  manner which  is  least
               intrusive with respect to the  right  to
We  applied  this  test  to the request  for  production  of  the
officers personnel files and concluded that the officers  privacy
interests  were  outweighed by the need  to  insure  that  police
behavior conforms to the code of conduct required of a democratic
society.31   We  upheld  the  trial courts  orders  because  they
occurred  in  the least intrusive manner possible:  following  in
camera  review  and  accompanied by an order that  family  names,
addresses,  and personal financial information be redacted  prior
to disclosure.32
          In  this  case,  Judge Rindner took  into  account  the
concerns we articulated in Jones in determining whether to  order
production of the income tax returns.  He evaluated the potential
evidentiary utility of allowing discovery of the tax returns  and
determined  that they were relevant to show potential  bias.   He
balanced this utility against the burden on Dr. Peterson and TIME
and the potential chilling effect disclosure would have on expert
witnesses   and  their  willingness  to  participate  in   future
litigation.   Ultimately, Judge Rindner found  that  the  Perezes
were  entitled to discovery of the tax returns in order  to  show
bias  on  [the]  part of the expert.  Rather  than  ordering  the
wholesale  disclosure  of  the experts  returns,  however,  Judge
Rindner ordered that disclosure occur under the protection  of  a
confidentiality order.33  Because Judge Rindners analysis reflects
the balancing in the Jones test, we hold that his ruling allowing
disclosure of the tax records was not an abuse of his discretion.
          Noffke   argues  that  the  trial  courts  ruling   was
inconsistent with our holding in Marron v. Stomstrad.34  [At. Br.
14] In Marron, two expert witnesses refused to disclose their tax
returns  at  their  depositions.35  In denying  Marrons  pretrial
motion  to  compel  disclosure of the tax returns,  the  superior
          court found that while revealing opposing witness bias was
important,  the plaintiffs right to discovery had to be  balanced
against  the  witnesses  right to privacy.36   In  affirming  the
superior   courts  ruling,  we  noted  that  Alaska  Civil   Rule
26(b)(2)(i) and (iii) allow a court to limit discovery where  the
information  is obtainable from some other source  that  is  more
convenient, less burdensome, or less expensive, or if the  burden
or  expense  of  the  proposed  discovery  outweighs  its  likely
benefit.37   We  concluded  that [b]ecause  Marron  elicited  the
information  that  she sought  that the experts worked  primarily
for  defendants  the superior court did not abuse its  discretion
in not allowing Marron to discover the witnesses tax records.38
          But  the  posture  of this case differs  from  that  in
Marron in two ways: first, while in Marron we affirmed the  trial
courts  determination  that disclosure of  the  tax  returns  was
unnecessary  in light of other evidence of bias, here,  no  other
evidence  of  bias  was on the record at the time  of  the  trial
courts  ruling.  Second, in Marron the experts refused to produce
their tax records, whereas here, Dr. Peterson and TIME agreed  to
produce their tax returns subject to entry of a protective order.
We  find  that  it was not an abuse of discretion  to  order  the
production of the tax returns.
          Noffke  also  argues that the $900 sanction  the  trial
court imposed was too large, especially when compared to the $150
sanction  against  the  Perezes for their failure  to  turn  over
certain  Social Security and employment records.   In  its  order
denying  Noffkes  motion to reconsider the  sanction,  the  trial
court  ruled  that the fine was based on the amount of  time  the
Perezes  attorney  indicated she spent  on  the  motion  and  the
reasonableness (or lack thereof) of the parties positions.   This
decision was within the discretion of the court.39
     C.   It Was Error To Grant a Directed Verdict on Comparative
          Negligence to the Perezes.
          At  trial,  after Noffke had called all  witnesses  who
would  testify  to  the comparative fault  of  the  parties,  the
Perezes  moved  for  a  directed  verdict  on  Joses  comparative
negligence,  alleging that Noffke had presented no evidence  that
Jose  had  been  at  fault in the accident.  After  hearing  oral
arguments  from  both  parties, the court  granted  the  directed
verdict  motion, noting that there had been no evidence presented
that  Jose had been doing anything inappropriate at the  time  of
the  accident  and stating that it did not recall  any  testimony
that both parties were at fault in the accident.  Later that day,
Noffke  filed  a  supplemental memorandum  pointing  to  her  own
testimony that both parties were at fault.  Noffke also  included
in  her memorandum a proposed jury instruction that driving at or
below  the  posted  speed  limit does  not  automatically  negate
negligence.   Noffke  argued that based on  the  road  conditions
including the road construction and blocked lane ahead   even  if
Jose  was traveling below the speed limit, he was still traveling
at  a  faster  speed than would be considered reasonable.   After
reviewing this memorandum, the trial court reiterated that  there
was  no evidence whatsoever that Jose had done anything wrong  to
          contribute to the accident and concluded that there was no
evidence of comparative negligence to support submission  of  the
issue to the jury.
          Noffke   now   points  to  her  testimony   on   direct
examination  that she thought both parties were  responsible  for
the  accident.   The Perezes respond that Noffkes testimony  that
both of us were at fault for the wreck is oblique and speculative
and  is  insufficient to defeat a motion for a directed  verdict.
The  Perezes  also note that all the evidence was that  Jose  was
traveling at a lawful and reasonable speed.
          We  review  the trial courts ruling by considering  the
evidence  in its strongest light most favorable to the non-moving
party.40  We apply an objective test in determining whether or not
fairminded  men  in  the  exercise of reasonable  judgment  could
differ.41   If  there  is  room for diversity  of  opinion  among
reasonable  people,  then  the question  is  one  for  the  jury.
Generally,  questions  of negligence are  left  to  the  jury  to
          Here,  the question is whether a jury could have  found
that  Jose breached his duty to drive with proper regard for  the
safety  of  himself and others in light of the  road  work,  road
conditions,  and  the speed at which cars in the  left-hand  lane
were  driving.   At trial, a number of witnesses testified  about
the speed at which Jose was traveling and the road conditions and
construction  on  Lake Otis Parkway on the day of  the  accident.
Officer  Roberts,  the  officer who responded  to  the  accident,
testified that the speed limit on Lake Otis was forty-five  miles
per hour and that Jose was going about thirty-five miles per hour
at  the  time of the accident.  But six days after the  accident,
Neyda  Perez told a doctor that her husband was going forty miles
per  hour  at  the  time of the accident.  Officer  Roberts  also
testified that the accident took place in a construction zone and
added  that the road conditions were wet and it had been  raining
or  was  raining.  Officer Roberts also indicated that road  work
signs were visible at the scene of the accident, alerting drivers
to the changed road conditions ahead.
          Taking  the  evidence in the light  most  favorable  to
Noffke,  the record could support a finding that the  right  lane
ahead  of  where  the  accident  occurred  was  blocked  due   to
construction,  that  the road was wet,  that  the  left  lane  of
traffic  had  slowed  to  a crawl, and that  Jose  was  traveling
quickly in the empty right-hand lane past the slow-moving cars in
the left-hand lane.  Sufficient evidence was presented for a jury
to  conclude  that Jose was partially responsible for  the  crash
because he was traveling at a higher speed than a reasonable  and
prudent person would under the same circumstances.
          Although  the  Perezes  argue  that  because  Jose  was
traveling  below the posted speed limit, he could  not  be  found
negligent,  this  position is not supported by  our  case  law.43
While  failure  to  adhere  to  a posted  speed  limit  might  be
negligence  per  se,  the opposite is not necessarily  true,  and
adherence to the speed limit does not guarantee a finding that  a
driver was not negligent.44
          In  light  of the evidence presented, there was  enough
          for reasonable minds to differ,45 and therefore the issue of
comparative negligence should have been presented to the jury.46
          The exclusion of the medical records was harmful error,
and  the  trial  courts  decision  regarding  those  exhibits  is
REVERSED.  The ruling granting a directed verdict to the  Perezes
on comparative negligence is also REVERSED.  The courts decisions
regarding the tax returns of Noffkes expert witness and discovery
sanctions  are  AFFIRMED.   The  case  is  REMANDED  for  further
proceedings consistent with this opinion.
     1     While  the police report indicated Noffke was  turning
onto  East 55th Avenue, that street does not intersect with  Lake
Otis  Parkway.   Instead, it seems likely that Noffkes  testimony
more accurately reflected her destination: the strip mall at 5500
Lake Otis Parkway.

     2     Bierria v. Dickinson Mfg. Co., Ltd., 36 P.3d 654,  657
(Alaska 2001).

     3    Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).

     4    Id.

     5     Intl Seafoods of Alaska, Inc. v. Bissonette, 146  P.3d
561, 566 (Alaska 2006).

     6    Marron, 123 P.3d at 998.

     7    Hagen Ins., Inc. v. Roller, 139 P.3d 1216, 1219 (Alaska
2006)  (quoting  Bobich v. Stewart, 843 P.2d 1232,  1235  (Alaska

     8    Dobos v. Ingersoll, 9 P.3d 1020, 1028 (Alaska 2000).

     9     Authentication is defined as the act of  proving  that
something (as a document) is true or genuine, esp. so that it may
be  admitted  as  evidence; the condition  of  being  so  proved.
Blacks Law Dictionary 142 (8th ed. 2004).

     10    Foundation is defined as [t]he basis on which something
is  supported;  esp. evidence or testimony that  establishes  the
admissibility of other evidence.  Id. at 682.

     11    9 P.3d at 1027.

     12     See id.; see also Liimatta v. Vest, 45 P.3d 310,  318
(Alaska 2002); Alaska R. Evid. 803(6).

     13    Alaska R. Evid. 803(6).

     14     4  Christopher  B.  Mueller & Laird  C.  Kirkpatrick,
Federal Evidence  8:78 (3d ed. 2007).

     15    At the pretrial hearing, following a discussion of the
stipulation, the court asked the following:

          Does  everybody agree we dont need  that  the
          foundation is established but that objections
          as  to  relevance and other  things  are  not
          established but that nobody needs to  produce
          custodians  of medical records to go  through
          the drill of doing that?
In response, the Perezes answered: Yes.

     16     Alaska  R. Evid. 803(6) defines business  to  include
business,  institution, association, occupation, and  calling  of
every kind, whether or not conducted for profit.

     17     45  P.3d  at  318  (internal citation  and  quotation

     18     See, e.g., City of Kodiak v. Samaniego, 83 P.3d 1077,
1087-88  (Alaska 2004) (applying Alaska R. Evid. 403  to  exclude
relevant  evidence  because  it  could  confuse  the  jury);  see
also Alaska R. Evid. 401.

     19    See Marron, 123 P.3d at 1011.

     20    Dalkovski v. Glad, 774 P.2d 202, 207 (Alaska 1989).

     21    Noffke also alleged that Neyda Perez had a preexisting
back condition.

     22    Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990); see
also  Langdon  v.  Champion, 752 P.2d 999,  1004  (Alaska  1988);
United Servs. Auto. Assn v. Werley, 526 P.2d 28, 31 (Alaska 1974)
(Given  our commitment to liberal pre-trial discovery, it follows
that  the  scope  of  the  attorney-client  privilege  should  be
strictly  construed  in  accordance with its  purpose.  (citation

     23     Nationally, [t]here is . . . significant disagreement
as  to  whether the measure of protection afforded to tax returns
is  aptly  characterized as a privilege .  .  .  .   Gattegno  v.
Pricewaterhousecoopers, LLP, 205 F.R.D. 70, 72  (D.  Conn.  2001)
(describing  conflicting holdings between  different  courts,  in
different  opinions  by  the  same court,  and  within  the  same
opinion).  The California Supreme Court has interpreted  a  state
statute  prohibiting disclosure of state tax information  as,  in
effect,  render[ing] the [tax] returns privileged.  See  Webb  v.
Standard  Oil Co., 319 P.2d 621, 624 (Cal. 1957); see  also  M.L.
Cross, Annotation, Discovery and Inspection of Income Tax Returns
in Actions Between Private Individuals, 70 A.L.R.2d 240 (2007).

     24    Marron, 123 P.3d at 999.

     25     State v. Glass, 583 P.2d 872, 875 (Alaska 1978);  see
Alaska Const. art. I,  22.

     26    51 P.3d 919, 928 (Alaska 2002) (DeNardo has no privacy
defense to the discovery [of] information relevant to the lawsuit
he  instituted  [because] . . . [his] . . . tax  returns  .  .  .
provide evidence of his earning potential, information useful  in
any damages determination.).

     27    Id. (quoting Intl Assn of Fire Fighters, Local 1264 v.
Municipality of Anchorage, 973 P.2d 1132, 1134 (Alaska 1999)).

     28     The  judicial  system must ensure  that  governmental
infringements  of  th[e]  right [to  privacy]  are  supported  by
sufficient  justification.  Falcon v. Alaska Pub. Offices  Commn,
570 P.2d 469, 476 (Alaska 1977).

     29    788 P.2d at 733.

     30    Id. at 738.

     31    Id. at 739.

     32    Id.

     33     On  remand, the trial court could follow the lead  of
other courts by conducting a preliminary in camera review of  the
records and approving the release of only those portions that are
relevant to the proceeding in order to ensure the least intrusive
disclosure  of  tax records.  See Ullmann v. Hartford  Fire  Ins.
Co.,  209  A.2d  651, 654 (N.J. Super. 1965) (The  disclosure  of
entire returns should never be ordered if partial disclosure will
suffice,  and in all but the clearest cases the return should  be
examined  by  the  judge  before  any  disclosure  is  ordered.);
DeCarvalho  v.  Gonsalves, 262 A.2d 630,  635  (R.I.  1970)  (The
justice  shall  examine the returns and mask out or  excise  such
portions  thereof as will not assist plaintiff in the preparation
of  his  suit  and  then  the returns can be  made  available  to

     34    123 P.3d 992.

     35    Id. at 999.

     36    Id.

     37    Id.

     38    Id.

     39    See Grimes v. Haslett, 641 P.2d 813, 822 (Alaska 1982)
(The trial court has broad discretion in imposing sanctions . . .
and its decision in these matters will only be overturned upon an
abuse of discretion.).

     40     Holiday  Inns of Am., Inc. v. Peck, 520 P.2d  87,  92
(Alaska 1974).

     41    Id.

     42    See Maddox v. River & Sea Marine, Inc., 925 P.2d 1033,
1035 (Alaska 1996) (As a general rule, issues of negligence . . .
are  not  susceptible  to  summary judgment  due  to  the  highly
circumstantial  judgments  required in their  determination,  but
should  be  resolved by trial in the ordinary  manner.  (internal
citations omitted)).

     43    See Ferrell v. Baxter, 484 P.2d 250, 265 (Alaska 1971)
([I]f a reasonably prudent man would take precautions in addition
to those statutorily required, the court may . . . find defendant
negligent  for failing to do so.); Meyst v. E. Fifth Ave.  Serv.,
Inc., 401 P.2d 430, 435-36 (Alaska 1965) (finding no error in the
trial  courts comparative negligence instruction despite evidence
showing  that defendant was driving more slowly than  the  posted
speed  limit); Vance v. United States, 355 F. Supp. 756, 760  (D.
Alaska  1973)  (Compliance  with the  statute  does  not  relieve
defendant from liability if defendant was negligent in failing to
take  additional precautions.); see also Restatement (Second)  of
Torts  288C (1965) (Compliance with a legislative enactment or an
administrative  regulation  does  not  prevent   a   finding   of
negligence   where  a  reasonable  man  would   take   additional

     44     See  Ferrell, 484 P.2d at 259 (traffic laws  set  the
standard  of  a reasonable man and thereby require a  finding  of
negligence in a tort action if the plaintiff can prove  that  the
defendant committed an unexcused violation).

     45    Hagen Ins., 139 P.3d at 1219.

     46     Noffke also argues that the trial court intentionally
waited  to  sign the final judgment until after the new  year  so
that  Noffke  had  to pay a higher rate of prejudgment  interest.
However,  since we have reversed and remanded this case on  other
issues, it is not necessary to address this issue.

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