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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 (03/21/2008) sp-6240
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
| DORA NOFFKE, | ) |
| ) Supreme Court No. S- 12185 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-04-11337 CI | |
| v. | ) |
| ) O P I N I O N | |
| JOSE PEREZ and NEYDA PEREZ, | ) |
| ) No. 6240 March 21, 2008 | |
| 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.
I. INTRODUCTION
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 the Perezes 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.
II. FACTS AND PROCEEDINGS
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.
III. STANDARD OF REVIEW
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
IV. DISCUSSION
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 and Neyda
Perezs medical treatment. Although the Perezes 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.
MS. KELLEY CANTERBURY: Yes.
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 workers compensation as well as 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.
Waggoner.
. . . .
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 Neyda Perezs Westchester Physical
Therapy records, Exhibit K; Independent Medical Evaluation
reports on Neyda Perez conducted by Dr. James, Exhibits L and P;
and an evaluation of Neyda Perez 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 workers
compensation and 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
direction.
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 awards, 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.
Noffke alleges that there are similar discrepancies
between Neyda Perezs testimony at trial and the evidence
contained in her medical records. In her testimony at trial,
Neyda mentioned that she had suffered a back injury in 1991 and
that she had previously experienced carpal tunnel injuries on
both her right and left hands. The medical records that were not
admitted at trial, however, reflect that Neyda also had a
shoulder injury, that her injuries required often extensive and
long-term treatment, and that she had been diagnosed with a
degenerative disc disease.
The excluded records relating to the Perezes
preexisting conditions could have affected the jurys verdict.
The difference between Jose and Neydas testimony about their
prior injuries and what the exhibits showed regarding their
injuries could have affected their credibility. Additionally,
the information in the exhibits could be read as indicating that
the Perezes injuries and treatment were much more extensive than
revealed in their testimony. Given that their damages are
affected by how much treatment they would need to return them to
their pre-accident states, the exhibits are important evidence of
Joses and Neydas pre-accident states and therefore could have
changed the verdict of a reasonable juror.21
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
circumstances.
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
reasonable.
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
confidentiality?[30]
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 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
decide.42
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
V. CONCLUSION
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.
In the Supreme Court of the State of Alaska
Dora Noffke, )
) Supreme Court No. S-12185
Appellant, )
v. ) Order
) Petition for Rehearing
Jose Perez and Neyda Perez, )
)
Appellees. ) Date of
Order: 3/21/2008
)
Trial Court Case # 3AN-04-11337 CI
Before: Fabe, Chief Justice, and Matthews, Eastaugh, and
Carpeneti, Justices. [Bryner, Justice, not
participating.]
On consideration of the Petition for Rehearing filed on
1/7/2008, and the Opposition filed on 1/30/2008,
It is Ordered:
1. The Petition for Rehearing is Granted in part and
Denied in part.
2. Opinion No. 6216, issued on 12/28/2007, is Withdrawn.
3. Opinion No. 6240 is issued on this date in its place.
Entered by direction of the court.
Clerk of the Appellate Courts
Lori A. Wade, Chief Deputy
Clerk
cc: Supreme Court Justices
Judge Rindner
Trial Court Appeals Clerk
West Publishing
Other Publishers
Dora Noffke v. Jose Perez and Neyda Perez
Supreme Court No. S-12185
Order of 3/21/2008
Page Two
Distribution:
Paul W. Waggoner
Law Offices of Paul Waggoner
632 Christensen Drive, Suite 200
Anchorage AK 99501
Michaela Kelley Canterbury
Kelley & Canterbury, LLC
821 N Street, Suite 206
Anchorage AK 99501
_______________________________
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
1992)).
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
omitted).
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
omitted)).
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
plaintiff.).
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
precautions.).
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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