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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ayuluk v. Red Oaks Assisted Living, Inc. (02/20/2009) sp-6337

Ayuluk v. Red Oaks Assisted Living, Inc. (02/20/2009) sp-6337, 201 P3d 1183

     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

JAMES AYULUK, as Conservator )
for Ruth Ayuluk, ) Supreme Court Nos.
) S-11981/S-12502/S-12522
Appellant/Cross-Appellee, )
) Superior Court No. 3AN-01- 09443 CI
v. )
) O P I N I O N
RED OAKS ASSISTED LIVING, INC.;)
SUSAN R. REEVES; RICHARD L.) No. 6337 February 20, 2009
REEVES; LESLEE K. OREBAUGH; )
PARKSIDE ASSISTED LIVING, INC.,)
d/b/a ROSEWOOD ASSISTED LIVING;)
and GARY W. AUSTIN, SR.,)
)
Appellees/Cross-Appellants. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:     Richard    E.    Vollertsen,
          Christopher  J. Slottee, Atkinson,  Conway  &
          Gagnon,   Anchorage,   for   Appellant/Cross-
          Appellee.    Peter  J.  Maassen,   Ingaldson,
          Maassen  &  Fitzgerald, P.C., Anchorage,  for
          Appellees/Cross-Appellants Red Oaks  Assisted
          Living,   Inc.,  Susan  Reeves,  and  Richard
          Reeves.    John  C.  Pharr,  Anchorage,   for
          Appellees/Cross-Appellants  Leslee   Orebaugh
          and  Parkside  Assisted Living,  Inc.,  d/b/a
          Rosewood Assisted Living.

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

          MATTHEWS, Justice.
I.   INTRODUCTION
          Ruth Ayuluk has impaired mental capacity as a result of
a  brain  injury.   While  she was a resident  of  the  Red  Oaks
Assisted  Living Home, Gary Austin, an employee of the  home  and
one  of Ruths caregivers, had sex with her on numerous occasions.
When this was discovered Ruths conservator sued Austin, Red Oaks,
Red  Oakss owners Susan and Richard Reeves, Leslee Orebaugh,  Red
Oakss  designated  administrator, and Orebaughs company  Parkside
Assisted  Living, Inc.  Red Oaks and Orebaugh later  joined  Jill
Friedman, Ruths care coordinator, as a third-party defendant.   A
jury  trial was conducted.  The jury found that while Ruth  often
consented  to  sex  with  Austin, she  did  not  consent  on  ten
occasions.   For  these occasions, Austin was  found  liable  for
sexual  battery.   The  jury  awarded Ruth  compensatory  damages
against  Austin  of $1,000 and punitive damages of  $6,500.   The
other   defendants   were  exonerated.    On   appeal,   numerous
evidentiary  and  instructional errors are argued.   We  conclude
that  some of them have merit and remand for a new trial  against
Red  Oaks  and  the  Reeveses.  The appellees cross-appeal  on  a
discovery  issue and an order requiring that they  pay  fees  and
costs  as  a condition of granting their motion to join Friedman,
which  required  that  the trial date be  continued.   They  were
required  to pay $74,416 under the order.  We conclude that  this
award must be recalculated on remand.
II.  FACTS AND PROCEEDINGS
          On  May 7, 1995, Ruth Ayuluk suffered a disabling brain
injury  while  riding an ATV.  Her parents,  Andrew  and  Theresa
Ayuluk,  were appointed to be her conservators.1  The  settlement
of  a  personal injury case left Ruth with substantial funds that
are  managed by a trust committee.  The committee appointed  Jill
Friedman to be Ruths case manager.  Friedman placed Ruth  in  Red
Oaks  Assisted  Living Home.  She selected Red Oaks  because  its
care  was aimed at a younger population than most assisted living
homes  in Anchorage.  Ruth entered Red Oaks on June 4, 1999,  and
Friedman  provided  a care plan detailing Ruths  limitations  and
needs.
          Susan and Richard Reeves are the owners of Red Oaks and
are  licensed  as  operators of assisted living  homes.2   Leslee
Orebaugh is Susan Reevess mother and owns another assisted living
home  company, Parkside Assisted Living, Inc.3  Orebaugh  was  an
administrator designee for Red Oaks, a position required by state
regulations.   Under   7   Alaska   Administrative   Code   (AAC)
75.210(a)(2)  an  assisted  living  home  must  appoint  both  an
administrator to manage the daily operations of the home  and  an
administrator  designee who is to act for the administrator  when
the  administrator  is  not available for more  than  twenty-four
hours.  Beyond her designation as an administrator designee,  the
extent  of  Orebaughs involvement with Red Oaks was  disputed  at
trial.
          Gary  Austin was hired by Red Oaks as a caregiver.   He
was  a  certified  nurses aide (CNA), but  the  parties  disputed
whether  he was employed by Red Oaks in that capacity.   Orebaugh
          became acquainted with Austin when she was appointed by the state
to  administer an assisted living home that the state was in  the
process  of closing.  Austin was employed by this home  until  it
was  closed.  During Orebaughs three-week tenure at the home, she
learned  of  allegations  that Austin had  previously  brought  a
pornographic tape to work and that he had come to work under  the
influence  of alcohol. Orebaugh discussed appropriate  boundaries
with  Austin, but did not attempt to ascertain the truth  of  the
allegations.
          Orebaugh  told  Susan Reeves about Austin  when  Reeves
mentioned  that Red Oaks was looking for an employee.  At  trial,
the  parties  disputed  whether Orebaugh  recommended  Austin  or
simply informed Reeves he was available.  Orebaugh told Reeves of
the  allegations  regarding pornography  before  Red  Oaks  hired
Austin.  Reeves also learned of the allegations regarding alcohol
prior to hiring Austin.4
          While   at   Red  Oaks,  Austin  acted  in  a  sexually
inappropriate  manner towards co-worker Cynthia  York  and  Sarah
Shine,  a  caregiver  employed by Friedman  to  work  with  Ruth.
Austins  behavior was reported to both Susan Reeves and Orebaugh.
York and Shine also informed Susan Reeves of concerns that Austin
was  acting  inappropriately towards Ruth, including rubbing  her
shoulders  and  stroking  her hair.  In addition,  York  informed
Susan Reeves that a crying resident was found to have bruises  on
her  thighs shortly after Austins shift ended.  The extent of Red
Oakss  responses  to these incidents and the relevance  of  these
incidents were disputed by the parties.
          On  October  24, 1999, Friedman removed Ruth  from  Red
Oaks  because  her  behavior  had  become  emotionally  unstable.
Shortly  thereafter, Ruth disclosed that she had sexual relations
with  Austin.   Austin admitted to having sexual  relations  with
Ruth, including vaginal, oral, and anal sex, but maintained  that
the sexual relationship was consensual.  Ruth stated that some of
the  sex  was consensual, but also that she sometimes engaged  in
sexual  activity that she did not feel comfortable doing.   Ruths
conservator maintains that Ruth does not have the mental capacity
to consent to sexual relations with an authority figure such as a
caregiver.
          In  2001 plaintiff sued Austin, Red Oaks, the Reeveses,
Orebaugh,  and Parkside for bodily injury and emotional  distress
arising out of Austins sexual relations with Ruth.5  Theories  of
negligent hire and failure to protect were presented as  well  as
battery  as to Austin, and vicarious liability for Austins  acts.
After  much  discovery and motion practice a trial  was  set  for
November 1, 2004.
          In  August  2004 Orebaugh moved to add  Friedman  as  a
party  to  the  case.6 The superior court denied this  motion  on
timeliness grounds, but later granted a renewed motion to  amend.
As  a condition of granting this motion, the superior court ruled
that Orebaugh and Red Oaks would be responsible for fifty percent
of  plaintiffs attorneys fees and costs until three  days  before
the next scheduled trial date.
          Before  the start of trial, the superior court  made  a
number  of rulings regarding the evidence that would be  used  at
          trial.  The court denied plaintiffs motion to exclude evidence of
Ruths sexual history.  The court stated that
          [t]his order is not intended to preclude  the
          plaintiff   from   raising  any   appropriate
          evidentiary  objection at trial with  respect
          to specific questions.  Plaintiff may request
          a  hearing  on  this  issue  outside  of  the
          presence of the jury before opening or before
          a  particular witness testifies, so that  the
          scope  of  questioning on this topic  can  be
          clarified outside the presence of the jury.
          
          The  court  also  ruled on Red Oakss global  motion  in
limine as follows:
               The   following   testimony,   exhibits,
          and/or  commentary in front of  the  jury  is
          excluded:
          
          1.   That  Gary  Austin may have made  sexual
               contact with Cindy York, irrespective of
               whether this contact is referred  to  as
               sexual  harassment.  The evidence  would
               have   limited  relevance   apart   from
               propensity, which is somewhat attenuated
               in  any  event, and should  be  excluded
               under [Evidence Rule] 403.
               
          2.   That  Mr.  Austin  may have  had  sexual
               contact  or inappropriate sexual conduct
               towards other residents.  Evidence  Rule
               404(b).   However, the court may  permit
               evidence  of  such  allegations  to  the
               extent   that   such  allegations   were
               communicated  to  Red Oaks  or  Parkside
               before Mr. Austin left the facility, but
               no  reference shall be made to any  such
               allegations until such proposed evidence
               is   first  presented  outside  of   the
               presence of the jury.
               
          3.   That  Gary Austin did or was rumored  to
               have  brought a pornographic video to  a
               previous  place of employment.  Evidence
               Rules 404(b), 403.
               
          4.   That  Gary Austin was or was rumored  to
               have   been  at  a  previous  place   of
               employment   under  the   influence   of
               alcohol.  Evidence Rules 404(b), 403.
               
          5.   That  Ms. York believed that Gary Austin
               did  not  complete his  assigned  duties
               while  employed  at  Red  Oaks  assisted
               living  home or a prior assisted  living
               home.  Evidence Rules 404(b), 403.
               
          In  response  to  plaintiffs motion to reconsider,  the
superior  court reversed in part its decision to exclude evidence
of  Austins  sexual or sexualized conduct toward other  residents
and employees.  The court stated:
               The   court   grants   the   motion   to
          reconsider  with  respect  to  Gary   Austins
          sexual  or  sexualized conduct  toward  other
          residents and fellow employees to the  extent
          that there is evidence that such conduct  was
          made   known  to  the  Reeves  and  Red  Oaks
          Assisted  Living.   It is  relevant  to  show
          notice   of   such  behavior.   It   is   not
          admissible  to  establish  that  Mr.   Austin
          engaged in sexual behavior with Ms. Ayuluk.
          
          The  superior court also limited the testimony from two
of  plaintiffs proposed expert witnesses  Tina DeLapp  and  Suzan
Armstrong.   DeLapp was a former member of the  Alaska  Board  of
Nursing,  the board that regulates CNAs.  Armstrong was a  former
deputy  ombudsman for the Office of the Long Term Care Ombudsman.
With  respect to DeLapp, the superior court ordered in part  that
DeLapp  shall not be allowed to testify on the standards of  care
applicable to assisted living homes and its employees as  she  is
not  qualified  or  experienced in this area.   With  respect  to
Armstrong, the superior court ordered that:
               1.   Suzan Armstrong is not qualified to
          offer  expert  opinions  on  assisted  living
          homes or what DHSS or prosecutors should have
          done, nor should her former role as ombudsman
          be  employed to qualify her to give  opinions
          in active litigation;
          
               2.  Defendants do not have access to the
          basis  for Suzan Armstrongs opinions  because
          of  confidentiality issues and therefore  are
          denied   meaningful   cross-examination    of
          Armstrong, rendering her opinions,  which  in
          any    way   rely   upon   such   foundation,
          inadmissible;
          
               3.   Suzan Armstrong is not qualified to
          make  expert  opinions on  hiring  practices,
          sexual relationship damages, the ability of a
          person  to consent to sexual relations and/or
          indicators of sexual predators;
          
               4.  Suzan Armstrongs
                              assum
                              ption
                              s  of
                              a
                              duty
                              to
                              keep
                              Ruth
                              safe
                              misst
                              ate
                              Alask
                              a law
                              and
                              are
                              exclu
                              ded
                              as
                              impro
                              per
                              testi
                              mony;
                              
               5.   Suzan  Armstrongs opinions  on  the
          under-regulation  of assisted  living  homes,
          her  opinions  on  what the  Reeves  knew  or
          should   have  known,  or  what  risks   were
          foreseeable will not assist the jury and  are
          inadmissible under Alaska Evid. R. 403.
          
               6.   Suzan  Armstrongs assumptions  that
          professional standards apply misstates Alaska
          law.    All  testimony  that  a  professional
          standard  of  care  applies  is  excluded  as
          contrary   to   Alaska  law   and   improper,
          misleading testimony.
          
          Trial began on September 11, 2006.  At the close of the
plaintiffs case, the court granted Orebaughs motion for  directed
verdict  as to the claims against her.  The jury found that  Ruth
was  mentally capable of consenting to sexual contact,  but  that
there  had been ten acts of nonconsensual sexual contact.   Based
on  those  ten  acts,  the jury found Austin  liable  for  sexual
battery.   Red  Oaks  was  found not negligent  and  not  legally
responsible for Austins actions.  Jill Friedman was found to have
been  negligent, but not to have caused Ruths injuries.  The jury
awarded a total of $1,000  in compensatory damages and $6,500  in
punitive damages.  Both awards ran exclusively against Austin.
          On   appeal,  plaintiff  challenges  a  number  of  the
superior   courts  rulings  excluding  evidence,  the  grant   of
Orebaughs   motion  for  directed  verdict,  and   several   jury
instructions.  Red Oaks challenges a discovery order and together
with Orebaugh challenges the fee and cost-sharing order.7
III. DISCUSSION
     A.   It  Was Error To Exclude Testimony from Tina Delapp and
          Suzan Armstrong on Applicable Standards of Care.
          
          One  major issue in this case was whether Red Oaks  and
Austin  breached  a  duty of care owed to  Ruth.   The  threshold
question,  of course, was what duty of care was owed.   Plaintiff
argues that the superior court improperly excluded testimony from
two witnesses who would have testified about the standard of care
applicable to CNAs and assisted living home operators.  Red  Oaks
responds  that this testimony was properly excluded  because  the
          witnesses were not qualified as experts and their testimony was
not  relevant.   For the reasons discussed below,  we  hold  that
excluding their testimony on the applicable standards of care was
error.
          We  review a trial courts decision to admit or  exclude
expert  testimony under an abuse of discretion  standard.8   When
the admissibility of expert testimony turns on a question of law,
we apply our independent judgment.9
          Plaintiff  argues  that Tina DeLapp  was  qualified  to
testify about the standard of care governing CNAs such as Austin.
The  superior  court ruled that DeLapp lacked the  qualifications
needed to testify on the standards of care applicable to assisted
living homes and their employees.  Red Oaks supports the superior
courts position.  It also argues that the duty of care of  a  CNA
was not applicable, because Austin was not working as a CNA.
          Alaska  Evidence Rule 702(c) was added to the  evidence
rules by the legislature.  It provides that in an action based on
professional  negligence, a person may not testify as  an  expert
witness  on the issue of the appropriate standard of care  except
as  provided in AS 09.20.185.  Alaska Statute 09.20.185  provides
that  a  licensed, trained, and experienced professional  who  is
board  certified  in an area directly related to  the  matter  at
issue  may  testify on the issue of the appropriate  standard  of
care.10   DeLapp met these criteria with respect  to  nurses  and
CNAs.  She had been a registered nurse for almost forty years and
served  from  1989 to 1992 on the Alaska Board  of  Nursing,  the
board that regulates CNAs.
          Based on this expertise, she was going to testify  that
certification as a nursing assistant is a credential that imposes
on  the  holder a duty to behave professionally in all situations
in  which he is in a caregiver role with a client, regardless  of
whether  his  current position requires that certification.   She
also  would have testified that any sexual contact between a  CNA
and  a  client  under his care and protection constitutes  sexual
misconduct.  DeLapp was clearly qualified to speak about the duty
of  care  applicable to a CNA, even a CNA working  in  a  non-CNA
caregiver role.11
          Red  Oaks argues that even if DeLapp was qualified, her
testimony  was not relevant.  Evidence Rule 702(a) provides  that
if
          specialized knowledge will assist  the  trier
          of  fact  to  understand the evidence  or  to
          determine   a  fact  in  issue,   a   witness
          qualified  as  an expert . .  .  may  testify
          thereto   in  the  form  of  an  opinion   or
          otherwise.
Red  Oaks  argues that DeLapps expert testimony would not  assist
the  trier  of fact because everyone agreed that what Austin  did
was wrong.  However, establishing that Austins behavior was wrong
was  not  the  only  purpose of DeLapps testimony.   Rather,  the
testimony was also relevant to show that Austin breached  a  duty
of  care  when  he engaged in the behavior in question.   Because
DeLapps  testimony  was likely to assist the  trier  of  fact  in
determining  whether Austin breached his duty of  care,  we  hold
that  the  superior court abused its discretion in excluding  her
testimony.
          Similarly,  plaintiff argues that Suzan  Armstrong  was
qualified  to testify about Red Oakss standard of care  regarding
supervision of Austin and about the regulations concerning sexual
contact  between assisted living home caregivers  and  residents.
The  superior  court ruled that Armstrong was  not  qualified  to
offer expert opinions on assisted living homes.  Armstrong was  a
former  deputy  ombudsman for the Office of the  Long  Term  Care
Ombudsman  (OLTCO).  OLTCOs mission was to investigate complaints
made  by or on behalf of an older Alaskan who resides in  a  long
term  care facility . . . .12  Long term care facilities  include
both assisted living homes and nursing homes.13  The majority  of
Armstrongs experience involved investigating complaints concerned
with  assisted  living homes.  While Alaska law states  that  the
ombudsman  only investigates complaints made by or on  behalf  of
older  Alaskans, OLTCO receives significant federal  funding  and
this  funding  is also used to investigate complaints  concerning
younger  persons  in  long term care if  the  complaint  has  any
potential  impact  on  older  residents.   Armstrong   was   thus
qualified to testify to the standard of care that assisted living
homes  should meet with respect to supervision of caregivers  and
sexual contact between caregivers and residents.14
          As   with  DeLapps  testimony,  Red  Oaks  argues  that
Armstrongs  testimony would not assist the trier of fact  because
Red Oaks did not condone romantic or sexual relationships between
residents  and  employees.  However, the  purpose  of  Armstrongs
testimony was not merely to show that such sexual contact  should
not be condoned by assisted living homes; it was also relevant to
the  question  whether  Red  Oaks breached  a  duty  of  care  in
supervising Austin.
          Based  on her expertise, Armstrong was going to testify
that  sexual predators working in long term care facilities often
display a number of traits, including:  a caregiver being  overly
affectionate with residents or staff, residents reporting a crush
or  interest in a caregiver, the caregivers willingness  to  work
undesirable  graveyard shifts, and the caregiver professing  that
they  can  handle  the home and its residents without  any  other
assistance  or  supervision.  She also would have testified  that
[a]t  the  very  least, a prudent administrator should  ascertain
through  supervision and communication with residents  and  other
staff,   that  no  harm  is  occurring  during  this   caregivers
unsupervised   shift.    More  generally,   Armstrongs   proposed
testimony was that the best way to minimize the risk of abuse  of
long term care residents is to take preventive actions, including
effective  hiring  and screening of employees, adequate  staffing
patterns  and  staffing  supervision,  education  of  staff   and
residents  on  recognizing and reporting abuse, and vigilance  on
the part of administrators.
          Taken  together, Armstrongs testimony would  have  been
relevant  to  the  question of what behaviors a prudent  assisted
living home administrator should be alert to and the actions that
should be taken to minimize the risk of sexual abuse of residents
by  staff  members.  Because Armstrongs testimony was  likely  to
          assist the trier of fact in determining whether Red Oaks breached
its  duty  of care, it was an abuse of discretion to exclude  her
testimony.
     B.   It  Was  Error  To Exclude Evidence that Red  Oaks  and
          Orebaugh  Knew  Austin  Posed  a  Risk  to  the  Female
          Residents of Red Oaks.
          Plaintiff  argues  that the superior  court  improperly
excluded certain evidence that plaintiff contends showed that Red
Oaks should have known Austin posed a risk to female residents of
Red  Oaks.   Red Oaks counters that the superior courts exclusion
of the evidence was proper because the evidence was not probative
but  was  prejudicial and tangential.  We conclude  that  it  was
error  to  exclude evidence pertaining to the bruising of  a  Red
Oaks resident and to the rumors of Austin watching a pornographic
video at another assisted living home where he worked.
          We review a trial courts decisions on the admissibility
of  evidence  for  abuse of discretion.15  However,  whether  the
superior  court applied the correct legal standard is a  question
of law to which we apply our independent judgment.16
          Before  trial,  the superior court ruled that  evidence
could  not be presented to the jury concerning Austin bringing  a
pornographic  video to a previous place of employment  or  having
once  been  under the influence of alcohol there.   The  superior
court  made  these rulings based on Alaska Evidence Rules  404(b)
and 403.  At trial, the superior court ruled that plaintiff could
not  introduce evidence pertaining to bruises found on a resident
at Red Oaks shortly after Austins shift had ended.
          Evidence  Rule  404(b)(1) prohibits admitting  evidence
pertaining  to other crimes, wrongs, or acts if the sole  purpose
for  offering the evidence is to prove the character of a  person
in  order  to show that the person acted in conformity therewith.
It is, however, admissible for other purposes, including, but not
limited  to, proof of . . .  knowledge[.]  Contrary to plaintiffs
argument,  the  risk  of  improper propensity  evidence  was  not
eliminated simply because all parties agreed that Austin had  sex
with Ruth.  While the parties agreed that Austin and Ruth engaged
in  sexual  activity, the nature of that activity was  contested.
Plaintiff  maintained  that  the  sexual  encounters  constituted
sexual  abuse  and assault.  Austin and Red Oaks maintained  that
the  sexual  encounters were consensual.  Thus, the risk  existed
that  the  contested evidence could be used to show that  Austins
behavior  was  abusive  and assaultive, in  conformity  with  the
character  revealed  by  the  excluded  evidence.   Because   the
evidence  could  be viewed as propensity evidence,  the  superior
court  was correct in its decision to apply Evidence Rule  404(b)
in determining whether the evidence was admissible.
          While Evidence Rule 404(b) applies, it was an abuse  of
discretion to exclude items of evidence that were admissible  for
the  purpose of demonstrating knowledge on the part of Red  Oaks.
Plaintiffs   claims  against  Red  Oaks  for  negligent   hiring,
training, supervision, and retention required proof that Red Oaks
knew  or  should have known Austin posed a risk to the residents.
Evidence  is  only  admissible for the purpose  of  demonstrating
knowledge if it would have shown that the employer knew or should
          have known of the employees propensity for the conduct which
caused the injury.17  Thus, only evidence that would have alerted
Red  Oaks  that  Austin  posed a risk of sexual  misconduct  with
residents should have been admitted.18
          The  evidence pertaining to the alcohol rumors and  the
assertions  of  Austins poor job performance  could  properly  be
excluded  under this standard.  However, the evidence  pertaining
to  the  pornographic video and the bruises found on  a  resident
shortly  after Austins shift had ended should have been admitted.
The  bruising could reasonably have been caused by sexual contact
of  some  sort.  Viewing pornography on the job is  also  conduct
that  could reasonably alert supervisors of the need for  further
inquiry and supervision.
          Red  Oaks  argues, citing a South Dakota opinion,  that
the  connection between possession of pornographic materials  and
an  individuals propensity to commit sexual offenses is  tenuous,
if not nonexistent.19  We think that in the context of an assisted
living home where the opportunities for sexual abuse of residents
by  caregivers are pronounced, the fact that a caregiver  may  be
viewing pornography on the job could reasonably be regarded as  a
danger  sign requiring action on the part of home administrators.
As  a  result, we conclude that it was an abuse of discretion  to
exclude the evidence pertaining to the pornographic video as well
as the evidence of bruises found on a resident.
          Red  Oaks  contends  that the superior  court  properly
excluded  the  evidence in question under Evidence  Rule  403  to
prevent a mini-trial on the truth of the proposed evidence.   But
the  evidence  was offered against Red Oaks to show knowledge  on
the  part  of Red Oaks rather than conduct by Austin.  A limiting
instruction  could have explained this point.  In any  event,  no
mini-trial  was  needed as to whether the  claims  were  true  or
false.
     C.   It  Was  Error  To  Exclude Evidence that  Austin  Made
          Sexual Advances Toward Other Residents of Red Oaks.
          
          The  superior court excluded evidence that Austin acted
in  a  sexually inappropriate way toward other residents  at  Red
Oaks.20  The court made its ruling based on the bar on propensity
evidence  contained in Evidence Rule 404(b)(1).  But the evidence
was  offered  for impeachment purposes, a use not  prohibited  by
Rule 404(b)(1).
          Austin  testified that he loved Ruth.21   Testimony  of
advances that Austin made toward other residents could reasonably
cast  doubt  on the credibility of this assertion.  While  it  is
possible  for a man in love with a woman to make sexual  advances
toward  other  women, the jury was entitled to  evaluate  Austins
credibility with respect to his declaration of love for  Ruth  in
light  of  contemporaneous sexual advances he made  toward  other
residents.
     D.   The  Superior Court Properly Admitted Evidence of Ruths
          Sexual History.
          Plaintiff  argues  that  the superior  court  erred  by
admitting  evidence  of Ruths prior sexual history.22   Red  Oaks
responds that the evidence was properly admitted because  it  was
          relevant to the issues of consent, damages, and impeachment. We
think that Red Oaks has the better of this argument.
          Ruths  prior sexual history was relevant to the  extent
that  it  illuminated her mental capacity to  consent  to  sexual
contact.  A persons capacity to understand something . . .  is  a
factual issue for the jury and, like other facts, may properly be
established by circumstantial evidence.23  In determining whether
a  person has the mental capacity to consent to sex, [a]  victims
mere  understanding of the physical act of sex is not  equivalent
to  an appreciation of the nature and consequences of the victims
conduct[.]24   To  appreciate  the  nature  and  consequences  of
engaging  in an act of sexual penetration, the victim  must  have
the  capacity  to  understand  the full  range  of  ordinary  and
foreseeable social, medical, and practical consequences that  the
act entails[.]25
          Plaintiffs  expert testified that in his  opinion  Ruth
had  significantly  diminished capacity to  exercise  consent  in
relationships where other variables are at play, other  variables
primarily  involving  differential power relationship[s]  between
her and the other person, differential levels of intellectual and
cognitive  competence between her and the other person.   But  he
stated that her brain injury did not automatically mean that  she
did  not have the capacity for consent, for a romantic and sexual
relationship.   The  testimony introduced by Red  Oaks  regarding
Ruths  sexual  history touched on birth control,  pregnancy,  and
other  sexual relationships.  While very little of this  evidence
directly  pertained  to  Ruths  capacity  to  consent,   it   was
circumstantial  proof  that  Ruth  understood  the   nature   and
consequences of engaging in sexual conduct.  The jury could  have
relied  on this evidence to support its conclusion that Ruth  had
the capacity to consent to sexual contact.26
     E.   The  Superior  Court Did Not Err in Granting  Orebaughs
          Motion for Directed Verdict.
          
          Plaintiff  argues  that  the superior  court  erred  in
granting  Orebaughs  motion  for a  directed  verdict.   Orebaugh
responds  that  the directed verdict was appropriate  because  no
evidence  justified  holding  her  liable.   We  agree  that  the
directed verdict was appropriate.27
          The  only  two  grounds  that might  support  liability
against  Orebaugh  were  based on  (1)  her  duty  as  designated
administrator for Red Oaks, and (2) her alleged recommendation of
Austin to Red Oaks.
          With   respect   to   Orebaughs  duty   as   designated
administrator,  the  evidence indicated that  when  Orebaugh  was
acting  as  such,  Cindy York reported to  her  that  Austin  was
sexually  harassing her.  Orebaugh initially indicated  that  she
would  talk to Austin at her next opportunity, but later  decided
that  she  would  leave the situation to the Reeveses.   However,
Orebaugh  did  ensure that York and Austin did not work  together
until  the  Reeveses  returned.  Orebaugh  also  contacted  legal
counsel   who  mentioned  the  importance  of  having  a   sexual
harassment  policy.   Orebaugh  wrote  a  memo  to  Susan  Reeves
detailing this information and upon the Reeveses return  Orebaugh
          informed them of Yorks report and gave them the memo that she had
drafted.
          We  fail  to see how Orebaughs conduct in this  respect
could  serve  as  the  basis  for  liability.   An  administrator
designee  acts as a substitute for the administrator  during  the
administrators  absence.28  If immediate  action  is  called  for
during the administrators absence, the administrator designee  is
expected to take it.  Here, however, no action beyond that  which
Orebaugh  took  would seem to be reasonably required.   When  she
passed on the relevant information to the Reeveses, Orebaugh,  as
the designated administrator, met her legal obligations.
          Similarly,  Orebaugh informed Susan Reeves that  Austin
was  available  for  work.  We assume for  purposes  of  deciding
whether  the  directed  verdict was warranted  that  this  was  a
recommendation.  But it was undisputed that Orebaugh also  passed
on  negative  rumors regarding pornography she  had  heard  about
Austin.   When  Orebaugh gave the Reeveses this  information  she
discharged any responsibility she may have had.29 The decision to
hire Austin rested with the Reeveses, not with Orebaugh.
     F.   Jury Instruction Issues
          Plaintiff challenges four of the jury instructions that
were given.  In the paragraphs that follow we discuss each of the
challenges.30
          1.   Jury Instruction No. 33
          Jury  Instruction  No.  33 was  a  vicarious  liability
instruction.31  Plaintiff contends that Red Oaks could have  been
found vicariously liable on either of two legal theories.  First,
vicarious liability could have been found if Austins conduct  was
within  the  scope  of  his  employment  by  Red  Oaks.   Second,
plaintiff claims that even if Austin was acting outside the scope
of his employment Red Oaks could have been liable under the aided-
in-agency theory.  Plaintiff claims that Jury Instruction No.  33
incorrectly  combined these two theories.  The first  ten  listed
factors  in  the  instruction  are  appropriate  to  a  scope  of
employment  determination.   But  plaintiff  contends  that   the
eleventh factor, whether Gary Austin was able to engage  in  acts
with  Ruth Ayuluk because of authority, power, or access  he  had
due  to  his employment at Red Oaks, should have been the subject
of  a  separate instruction under which vicarious liability could
have  been found even if Austin was acting outside the  scope  of
his employment.32

          Red  Oaks  responds that any error in melding  the  two
theories was harmless because the aided-in-agency theory was  not
applicable under the facts of this case and no instruction on  it
should have been given.
          In   Veco,   Inc.   v.  Rosebrock  we   approved   jury
instructions that permitted a jury to impose vicarious  liability
on  an  employer for the sexual harassment of an  employee  by  a
supervisor  under an aided-in-agency theory.33   We  applied  the
Restatement (Second) of Agency section 219(2)(d), which provides:
               (2) A master is not subject to liability
          for  the torts of his servants acting outside
          the scope of their employment, unless:
          
               . . . .
          
               (d)  the  servant purported  to  act  or
          speak  on  behalf of the principal and  there
          was reliance on apparent authority, or he was
          aided  in  accomplishing  the  tort  by   the
          existence of the agency relation.[34]
          
We  determined  that  the  aided-in-agency  theory  should  apply
because  [h]arassment  by supervisors is facilitated,  made  more
serious,  and is less apt to be reported because supervisors  are
understood to be clothed with the employers authority. 35
          Red  Oaks  argues that the aided-in-agency rule  should
only  apply  in cases in which the victim is given to  understand
that  the  servant is acting within his role as agent.  Red  Oaks
argues  that Ruth had no such understanding in this case,  noting
that  Ruth  understood that she needed to keep her  romantic  and
sexual interests in Austin secret from Red Oaks.36  In support of
this  argument  Red  Oaks refers us to Zsigo  v.  Hurley  Medical
Center.37   The  court in Zsigo declined to apply  the  aided-in-
agency  theory  to  a  case  where a nursing  assistant  sexually
assaulted  a hospital patient.  The Michigan court was  concerned
that  the  aided-in-agency theory risked eliminating the  general
rule  that  employers  are  only liable  for  acts  of  employees
committed  within  the  scope of their employment.38   The  court
suggested  that  if  the rule had any legitimate  application  it
should be limited to cases of sexual harassment of an employee by
a supervisor.39
          There  is considerable weight to the concerns expressed
by   the   Michigan  court  that  aided-in-agency  as  a   theory
independent of apparent authority risks an unjustified  expansion
of  employer tort liability for acts of employees.40  Given these
concerns,  we  believe  that  the  aided-in-agency  theory  as  a
separate  basis for vicarious liability outside of the employment
supervisory context should be limited to cases where an  employee
has by reason of his employment substantial power or authority to
control  important elements of a vulnerable tort victims life  or
livelihood.  Whether a particular type of case falls within  this
category  should be a question for the court, not a  jury.41   We
believe that an instruction on the theory should have been  given
in this case.
          In  Veco we held that an employer is vicariously liable
for  a hostile work environment created by its supervisors . .  .
regardless  of  whether the supervisors were  acting  within  the
scope of their employment.42  We noted that although the acts  of
harassment  were outside the scope of employment,  the  power  to
accomplish the unauthorized acts was a product of the supervisors
employment relationship:
          [H]arassment  by  a  supervisor  carries   an
          implied  threat  that  the  supervisor   will
          punish    resistance    through    exercising
          supervisory  powers,  which  may  range  from
          discharge to assignment of work, particularly
          exacting scrutiny, or refusal to protect  the
          employee  from  coworker harassment.  .  .  .
          Although coworkers or even outsiders may also
          be  capable of creating a sexually  harassing
          work   environment,  it  is   the   authority
          conferred  upon a supervisor by the  employer
          that  makes the supervisor particularly  able
          to  force  subordinates to submit  to  sexual
          harassment.[43]
          
          In  Veco  we did not suggest that an employer could  be
vicariously  liable for an employees torts committed outside  the
scope  of  employment merely because the employees position  gave
the employee access or proximity to the victim.  Instead what  is
needed,  as  we  explained, is a relationship with  authority  or
control over the victim.  We stated:
          [A]  supervisor  who  does  not  oversee  the
          complainant should be treated as a co-worker.
          In  that  situation, the supervisor does  not
          have  authority over the complainant and  may
          not   be   aided  by  his  position  in   the
          workplace.  Furthermore, when a co-worker  or
          supervisor   with   no   control   over   the
          complainant  creates  a hostile  environment,
          the  complainant should be less  hesitant  to
          report  the  situation,  since  the  harasser
          could   not   retaliate   by   changing   the
          conditions of the complainants employment.[44]
          
          We  believe that a caregiver in an assisted living home
who  has supervisory power or authority over vulnerable residents
is,  for  purposes of the aided-in-agency theory, in  a  position
that  is  analogous  to  that of a supervisor  of  employees.   A
caregiver,   as  a  provider  of  food,  comfort,  hygiene,   and
medication for residents, has the power to withhold or delay  any
of these basic needs.  Thus, like the supervisor of employees,  a
caregiver is in a position to punish in direct or subtle  ways  a
resident  who resists sexual advances.  While the sexual advances
themselves may neither be authorized nor reasonably appear to  be
authorized by the employer, the caregivers power that enables him
to  further  his  improper conduct is an  inherent  part  of  the
employment relationship.45
          In  the  present case there is ample evidence that  Red
Oaks  placed  Austin  in a position of power and  authority  over
Ruth.   The  trial  testimony  of Cynthia  Patricia  Gurisko,  an
employee  at  Red  Oaks, was as follows with respect  to  Austins
responsibilities:
          Q:   And what was it that your role was going
               to be at the home, at Red Oaks?
               
          A:   I  was  told that I was going to be  the
               primary  care giver.  I was  solo  shift
               during  the  day.   It  was  a  lot   of
               responsibility.   I was responsible  for
               all of the care of the  of the residents
               throughout my entire shift.
               
          . . . .
          
          Q:   What  was  you[r] understanding  of  his
               [Gary Austins] position?
               
          A:   I  was  informed that he would have  the
               mirror  position of mine.  He  would  at
               first start out on the weekends and then
               later progress to the evenings.  And his
               responsibilities were supposed to be the
               same as mine, just on a different shift.
               
Another  Red  Oaks  employee, Cynthia York, stated  that  on  the
weekends  Gary [Austin] would come in and he would be alone  with
the   with  the  entire  household of  residents  um,  completely
unsupervised.
          We   conclude  that  plaintiff  was  entitled   to   an
instruction  permitting the imposition of vicarious liability  on
Red Oaks under an aided-in-agency theory.  Instruction No. 33 did
not  suffice for that purpose because it did not recognize aided-
in-agency  vicarious liability separate from vicarious  liability
that  may  exist because the tort of an employee  is  within  the
course  and  scope of his employment.  Accordingly,  in  the  new
trial  that is required by this opinion, the jury should be given
an appropriate aided-in-agency instruction.  Although we will not
undertake  to  draft a model instruction for the court,  the  key
determinations  for the jury to make are (1)  whether  Austin  by
reason  of his employment with Red Oaks had substantial power  or
authority over Ruths important needs and, if so, (2) whether that
power  and authority played a substantial role in bringing  about
the sexual contact between Austin and Ruth.
          2.   Jury Instruction No. 24
          Plaintiff  argues  that  the superior  court  erred  in
giving  Jury Instruction No. 24.  This instruction was a  pattern
instruction  stating that Austin was subject  to  the  reasonable
person standard.  Plaintiff contends that since Austin was a  CNA
and  there  was  evidence  that he was serving  as  such  in  his
employment  with Red Oaks, an appropriate instruction would  have
held  him to the standard of care of a CNA.  The important  point
is  that  CNAs  are prohibited by regulation from sexual  contact
with their clients.46  Plaintiff sought an instruction that asked
the jury to determine whether Austin was acting as a CNA and,  if
so,   to   determine  whether  Austin  violated  the  regulations
governing CNAs conduct, and, if so, to find Austin negligent  per
se.47

          Red Oaks argues that Instruction No. 24 was appropriate
and  the  plaintiffs proposed instruction was properly not  given
because  Austin was not working as a CNA.  But there was evidence
that  showed that Austin applied for a CNA position, that he  was
hired   because  he  was  highly  certified,  that  he  over[saw]
residents  daily  lives at Red Oaks, and  that  he  believed  his
position  was that of a CNA.  Much of this evidence was disputed,
but the dispute merely means that whether Austin was employed  as
a CNA while at Red Oaks was properly a jury question.
          We   believe  that  the  court  should  have  given  an
instruction  along  the lines of plaintiffs proposed  Instruction
No.  37A.   Further, in our view, the failure to give  some  such
instruction  was  prejudicial because, assuming that  Austin  was
acting  as a CNA at Red Oaks, the instruction would have properly
advised  the jury that a CNA may not have sexual contact  with  a
client even if it is consensual.  Thus the jury could have  found
that  every sexual act Austin committed, whether consented to  by
Ruth or not, could be the basis for an assessment of damages.
          Plaintiff  also  claims  that Instruction  No.  24  was
erroneous as it applied to Red Oaks.  Plaintiff claims  that  Red
Oakss  conduct  should  have  been measured  against  that  of  a
reasonably prudent assisted living home operator rather than  the
reasonable person standard employed by Instruction No.  24.   Red
Oaks  argues  however  that  Instruction  No.  24  when  read  in
conjunction  with Instruction Nos. 25 and 26 cured this  possible
defect.   Jury  Instruction  No.  25  states  that  parties  were
required to use whatever knowledge, training, experience,  skill,
or  intelligence they either possessed or claimed to  possess  in
meeting their duty of care.  Instruction No. 26 provides excerpts
from Alaska statutes and regulations dealing with assisted living
homes  and states at the end that jury members may consider  [any
violation of these statutes and regulations] along with  all  the
other  evidence  in deciding whether under the  circumstances  of
this case [Red Oaks] used reasonable care.
          Read  together, Instructions Nos. 24, 25, and  26  were
sufficient  to convey to the jury the point that Red Oaks  should
be  held  to the standard of care applicable to licensed assisted
living  homes.  Thus, as to Red Oaks, the superior court did  not
err   in  giving  Instruction  No.  24  together  with  the   two
instructions that followed it.
          3.   Jury Instruction No. 31
          Jury Instruction No. 31 told the jury that in order for
plaintiff to prevail [p]laintiff must establish that Ruth .  .  .
did  not  have  the capacity to consent to sexual relations  with
.  . . Austin, or did not consent to sexual relations with . .  .
Austin.   The  instruction went on to describe the  circumstances
under which a person might lack the capacity to consent to sexual
relations.48   Plaintiff  contends that Instruction  No.  31  was
erroneous  because  even if Ruth was able to  consent  to  sexual
contact,  any  contact between her and Austin was a violation  of
Austins  standard  of  care  as  both  a  caregiver  and  a  CNA.
Plaintiff  also  argues that Instruction No. 31 as  to  Red  Oaks
would  have been inappropriate if Armstrong and DeLapp  had  been
allowed  to  testify that any sexual contact between  Austin  and
Ruth   regardless  of  consent  violated  assisted  living   home
regulations.
          Red  Oaks  argues  that  to the extent  that  Ruth  was
capable  of  consenting and did consent to sex with  Austin,  she
suffered  no  wrong  even if Austin and Red Oaks  violated  their
respective duties.
          We  think  that  the plaintiff has the better  of  this
argument.  Even if Ruth was capable of consenting to sex and  did
consent to sex with Austin, tort damages for physical and  mental
          harm suffered by Ruth could have been assessed.  Assuming that
the  standard of care is that no sexual contact between staff and
residents  is permitted, regardless of the consent of a resident,
that  standard  is  imposed  because  of  the  vulnerability   of
residents and consent should not be a complete defense.49
          4.   Instruction No. 3050
          Plaintiff   argues   that  the   limitation   in   this
instruction  to  actual physical or mental  injury  is  improper.
Plaintiff  argues  that actual mental injury  would  not  include
forms of mental distress such as humiliation or degradation.  But
considering the instructions taken as a whole, it is evident that
Ruths recoverable damages included many different forms of mental
distress.   Instruction No. 34 informed the jury  that  Ruth  was
claiming emotional injury and Instruction No. 35 broadly  defined
emotional injury to include pain and emotional suffering, loss of
enjoyment  of life, humiliation, degradation, etc.   We  conclude
therefore  that there was no error in giving Instruction  No.  30
when it is considered along with Instructions Nos. 34 and 35.
     G.   Damages
          Plaintiffs  final  claim that we discuss  is  that  the
jurys  compensatory  damage award cannot be  utilized  on  remand
because  it  was  the  product  of  the  trial  courts  erroneous
evidentiary   and  instructional  rulings.51    We   agree   that
compensatory damages must be retried.  Instruction No. 31 limited
damages  to  unconsented sexual contacts.  But, as we have  held,
the jury should have been permitted to assess damages for all  of
the  sexual  contacts between Austin and Ruth if the  jury  found
that  such  contacts were in violation of Austins  or  Red  Oakss
standard of care.  Further, testimony concerning the standards of
care  that governed Austins and Red Oakss conduct was erroneously
excluded, and as to Austin, the jury was not correctly instructed
as to the potentially applicable standard of care.52
     H.   Cross-Appeal
          1.   Medical release
          On  cross-appeal Red Oaks argues that if this  case  is
remanded, Ruth, or her conservator, should be required to sign  a
medical release as part of the discovery process.  Red Oaks notes
that  the trial court declined to require Ruth to sign a  medical
release  because the court ruled that she has not sought  damages
for  any  physical injuries and thus health care records in  that
regard  should remain privileged as a general rule. Instead,  the
court  required the production of documents associated  with  any
mental  disability,  and [Ruths] health care  records  associated
with  sexual  relations.  But the court did not require  Ruth  to
sign  a medical release limited to documents of this description.
Rather,  plaintiffs  attorney was required  to  turn  over  Ruths
medical records in this category.  Eventually, thousands of pages
of medical records were turned over.
          Red  Oaks  finds fault with the discovery permitted  by
the  superior  court in two respects.  First, Red  Oaks  contends
that the subject matter limitations imposed by the court were too
narrow.  Red Oaks points out that Ruths cognitive abilities  were
at  issue  because of the claim that she lacked  the  ability  to
consent, and her emotional condition was at issue since emotional
          distress damages were sought.  Red Oaks claims that all of Ruths
medical records were relevant to these issues because they  might
reasonably  have contained, or led to, evidence concerning  them.
Red  Oaks  notes  that  records  of physical  examinations  often
contain  observations concerning a patients emotional  state  and
cognitive functions, and points to a number of medical records in
this case that contained such observations.
          Second,  Red  Oaks contends that it was entitled  to  a
signed  medical  release so that Red Oaks could  collect  medical
records  directly  from  Ruths healthcare providers  rather  than
having to depend on plaintiffs counsel to produce them.
          We  agree with Red Oakss first point.  The filing of  a
personal injury action waives the physician/patient privilege  as
to  all  information concerning the plaintiffs health and medical
history  relevant  to the matters at issue.53  And  relevance  is
broadly  defined  for  discovery purposes  to  include  not  only
information  that would be admissible in evidence at  trial,  but
also  information reasonably calculated to lead to the  discovery
of  admissible evidence.54  Red Oakss argument that all of  Ruths
medical  records satisfied the discovery standard  of  relevance,
given the issues in this case, seems correct.55
          Concerning  Red  Oakss second point, we have  indicated
that  when a plaintiffs medical privilege has been waived by  the
filing   of  suit,  discovery  should  normally  proceed  without
judicial participation . . . in a manner demonstrating candor and
common  sense.  56   Requiring  a plaintiff  to  furnish  medical
releases  to  her  adversaries is  one  way  to  accomplish  that
objective.57   Further, so doing as an alternative  to  requiring
plaintiffs counsel to produce medical records can result  in  the
discovery  of records of which plaintiffs counsel is  not  aware.
It  also  eliminates requiring defendants to rely  on  plaintiffs
counsel,  as  Red  Oaks  puts  it,  as  the  gatekeeper  for  the
production of medical records that he considered relevant.58
          But  we do not hold that trial courts necessarily  must
require  the  furnishing of signed medical releases  in  personal
injury litigation.  There may be alternative methods of discovery
that  will  produce the information that should be made available
and  at  the  same  time  better protect a plaintiffs  legitimate
privacy  interests.  Accordingly, the means and methods by  which
discovery may be pursued on remand should remain subject  to  the
discretion of the superior court.
          2.   The fee and cost sharing order
          On April 20, 2005, Red Oaks and Orebaugh moved to bring
in  Jill Friedman as a third-party defendant.  The trial was then
scheduled  for May 9, 2005.  Because the motion was made  on  the
eve  of  trial  and granting it would require a continuance,  the
court  conditioned the grant of the motion by requiring that  Red
Oaks  and  Orebaugh  pay  fifty percent of  the  costs  and  fees
incurred by the plaintiff between the date of the order and three
days  before the next scheduled trial.  A new trial was  set  for
April  3,  2006.   But  in  March  2006  the  trial  had  to   be
rescheduled,   because  of  court  scheduling   problems,   until
September  11, 2006.  After the trial, the court determined  that
$74,416  should  be paid by Red Oaks and Orebaugh  in  accordance
          with the fee and cost sharing order.
          Red  Oaks and Orebaugh challenge this award.59  We hold
that  though imposing conditions was appropriate, the award  must
be  vacated.   Only fees and costs related to adding Friedman  as
party should have been reimbursable.  Further, in accordance with
the  order,  fees and costs incurred after three days before  the
trial scheduled for April 3, 2006, should not have been awarded.
          Red  Oaks  and Orebaugh first argue that the imposition
of the conditions was an abuse of discretion because the superior
court  should have granted their motion to amend their answer  to
include  a  claim  against Friedman when they first  brought  the
motion  in  August  2004.  They argue that because  the  superior
court  should have granted their first motion, the superior court
could  not  properly have imposed costs on them for bringing  the
renewed motion on the eve of trial.
          The  superior courts decision to later grant Red  Oakss
and  Orebaughs  renewed motion to amend does not imply  that  its
earlier  decision was an abuse of discretion.  When Red Oaks  and
Orebaugh filed their renewed motion, the superior court took into
consideration  our  intervening decision in  Miller  v.  Safeway,
Inc.,  where we held that error had been committed in failing  to
allow a late amendment to a complaint.60 Taking Miller v. Safeway
into account, the trial court decided to grant the renewed motion
conditioned as indicated.
          We  are  unable  to  say  that  the  court  abused  its
discretion  when  in  late September 2004 the  court  denied  the
initial motion to add Friedman.  At that point trial was  set  to
begin  on November 1, 2004.  When the ruling was made it appeared
that  the  trial would go forward as scheduled.  The trial  court
indicated  in  ruling on the motion that it was untimely  because
Friedman   had  long  before  been  identified  as  a   potential
tortfeasor  and  that adding her would result in prejudice.   The
court  appeared  to accept plaintiffs counsels argument  that  if
Friedman  were brought in as a party her counsel would need  time
to  prepare  a  defense and this would result in  a  continuance.
Further,  additional  discovery would  be  required  which  might
include  retaking  depositions and deposing any expert  witnesses
hired by Friedman.
          As  it turned out, the November 1, 2004 trial date  did
not  hold.  Discovery was reopened on December 1, 2004,  and  the
trial  was  set for May 9, 2005.  It is possible that  a  renewed
motion  to  add  Friedman  as a party made  once  the  trial  was
rescheduled should have been granted without conditions.  But  no
timely  motion was made.  Instead, only nineteen days before  the
scheduled May 9 trial did Red Oaks and Orebaugh move again to add
Friedman  to  the  case.  The superior court observed:   It  does
trouble   me   .  .  .  that  the  defendants  failed   to   seek
reconsideration of this issue promptly and waited until  nineteen
days prior to trial, and it is for that reason that its caused in
my mind a lot more unnecessary delay and additional cost.  In our
view  these  observations were appropriate and we do not  believe
that  the  superior court abused its discretion in requiring  Red
Oaks and Orebaugh to reimburse Ruth for fees and costs related to
the addition of Friedman as a party.
          But  when  a court imposes attorneys fees for  dilatory
amendments,  there must be a showing of a connection between  the
late  filing  and additional expenses.61  No such connection  was
required in the order under review.  We agree with Red Oaks  that
[i]t  was  unfair  for the defendants to be  liable  during  this
entire  time for 50% of whatever the plaintiffs attorney saw  fit
to do in order to better prepare their case.
          We  also  agree with Red Oaks that attorneys  fees  and
costs incurred after three days before the rescheduled April 2006
trial  date should not have been awarded.  The order by its terms
is  limited  to this period.  Further, the additional delay  that
occurred after the end of this period was not due to any fault of
the appellees.
          We  therefore vacate the $74,416 award.  On remand  the
court should award only costs and fees reasonably related to  the
addition of Friedman as a party, and the continuance required  by
her  addition,  incurred not later than  three  days  before  the
rescheduled trial time of April 3, 2006.
IV.  CONCLUSION
          For the above reasons
          (1)  the  final  judgment  is AFFIRMED  insofar  as  it
dismisses Orebaugh and Parkside Assisted Living;
          (2)  the  judgment  is  REVERSED  with  regard  to  the
Reeveses and Red Oaks Assisted Living, Inc.;
          (3)  the judgment is VACATED as to the compensatory and
punitive  damage  award  in favor of the plaintiff  against  Gary
Austin;
          (4) the judgment is VACATED with respect to the $74,416
award of fees and costs against the Reeveses, Red Oaks, Orebaugh,
and Parkside; and
          (5) this case is REMANDED for additional proceedings in
accordance with the views expressed in this opinion.
_______________________________
     1     Subsequently, Ruths brother James was appointed as her
conservator.  We refer to him as the plaintiff in this opinion.

     2     References throughout this opinion to Red Oaks include
the Reeveses.

     3     When  we refer to Orebaugh as a party we also  include
Parkside.

     4     Susan  Reeves  learned  of  the  allegation  regarding
alcohol  in  a  conversation  with  Cindy  York.   Orebaugh  also
indicated  that she might have discussed the alcohol  rumor  with
Reeves,  but  Reeves  testified that she had  not  discussed  the
allegation regarding alcohol with Orebaugh.

     5     The suit was initially brought in Ruths name.  It  was
later  ratified  by  her  conservator  and  at  some  point   the
conservator was substituted for Ruth as the named plaintiff.

     6    Red Oaks later joined in the motion.

     7     Red  Oaks also initially appealed the ratification  of
the  lawsuit by Ruths conservators as untimely, but withdrew this
argument in its reply brief.

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

     9    Id.

     10    AS 09.20.185 provides:

               (a)  In  an action based on professional
          negligence,  a person may not testify  as  an
          expert   witness   on  the   issue   of   the
          appropriate  standard  of  care  unless   the
          witness is
               (1)  a  professional who is licensed  in
          this state or in another state or country;
               (2)  trained and experienced in the same
          discipline  or  school  of  practice  as  the
          defendant or in an area directly related to a
          matter at issue;  and
               (3)  certified by a board recognized  by
          the  state  as having acknowledged  expertise
          and   training   directly  related   to   the
          particular field or matter at issue.
               (b)   The  provisions  of  (a)  of  this
          section  do  not apply if the state  has  not
          recognized  a  board that has  certified  the
          witness in the particular field or matter  at
          issue.
          
     11     The  superior  court also held that  DeLapp  was  not
qualified  to  offer  expert opinions on  either   mental  health
issues  or severe emotional damages of a person whom she has  not
examined or the hiring, firing, or supervision of assisted living
facility  employees.  She was also precluded from  testifying  on
the  foreseeability of a sexual relationship or sexual action  of
Gary  Austin.   Plaintiff does not appeal these portions  of  the
superior courts order.

     12    AS 47.62.015(a).

     13    AS 47.62.090(2).

     14     The superior court also excluded Armstrongs testimony
on  the grounds that the defense did not have access to the basis
for  her opinions because of confidentiality issues, thus denying
Red Oaks the opportunity for meaningful cross-examination.  While
OLTCO   cannot   release   confidential   records,   reports   of
investigations are considered public documents and are  regularly
released  to  the  public.  The  availability  of  these  reports
provides  Red Oaks with a sufficient basis for conducting  cross-
examination.   As  plaintiff points out,  expert  testimony  from
physicians,  psychologists, and lawyers is  often  based  on  the
treatment  of  other  patients  or  clients  whose  records   are
confidential.   Members of these groups are  often  qualified  as
expert  witnesses, and the law does not prevent them  from  being
called  as  expert  witnesses.  It was error  to  bar  Armstrongs
testimony on this ground.

     15    Landers v. Municipality of Anchorage, 915 P.2d 614, 616
n.1 (Alaska 1996).

     16    Id.

     17    Estevez-Yalcin v. Childrens Vill., 331 F. Supp. 2d 170,
174 (S.D.N.Y. 2004) (quoting Kenneth R. v. Roman Catholic Diocese
of Brooklyn, 654 N.Y.S.2d 791, 793-94 (App. Div. 1997)).

     18      The  superior  court  allowed  evidence  of  Austins
sexualized conduct toward other residents and fellow employees to
be admitted to the extent that such conduct was made known to Red
Oaks  because it was relevant to show notice of the risk of  such
behavior.

     19    State v. White, 549 N.W.2d 676, 682 (S.D. 1996).

     20     Plaintiff does not show that Red Oaks knew or  should
have  known about this conduct prior to Ruths sexual contact with
Austin.   Therefore,  this evidence was not  admissible  for  the
purpose of showing knowledge by Red Oaks.

     21    In response to questioning, Austin testified in part as
follows:

          Q.   How did you feel about Ruth?
          A.   Feelings developed over time.  We had  a
               quiet time together that was better than
               anything Id ever experienced before just
               in . . . holding each other. . . .
          . . . .
          Q.   Did you care about her?
          A.   Yes.
          Q.   Did you love her?
          A.   Yes, I did.
               
     22     The superior court denied plaintiffs motion in limine
to  exclude  evidence  of  Ruths sexual history,  but  the  order
permitted plaintiff to make evidentiary objections by asking  for
a  hearing before any particular witness was called to make  sure
that the scope of questioning was appropriate.  Plaintiff made  a
motion  to reconsider before the start of trial, but the superior
court denied the motion.  Red Oaks did not call any witnesses  in
its  defense,  deciding  to only play part  of  Ruths  deposition
instead.   To  the extent that Ruths sexual history  was  entered
into  the record, it was during examination and cross-examination
of plaintiffs witnesses.

     23    Jackson v. State, 890 P.2d 587, 592 (Alaska App. 1995).

     24    Id. at 591.

     25    Id. at 592.

     26    Plaintiff also argues that Ruths sexual history should
have  been excluded under Evidence Rule 403 because it encouraged
the  jury  to view her in a bad light.  In view of the importance
of  the  issue of Ruths capacity to consent to sex, we are unable
to  say  that the superior court abused its discretion in finding
the evidence more probative than prejudicial.

     27     When  reviewing such motions, this  court  determines
whether the evidence, when viewed in the light most favorable  to
the  non-moving party, is such that reasonable persons could  not
differ  in their judgment.  Alaska Marine Pilots v. Hendsch,  950
P.2d 98, 108 (Alaska 1997).

     28    7 AAC 75.210(a)(2).

     29    There is a question whether Orebaugh told Reeves of the
rumors   regarding  Austin  drinking  at  his  prior   place   of
employment.   See  supra note 4.  Reeves  may  have  gotten  this
information  only  from  York, but the important  point  is  that
Reeves  had  the information and hired Austin anyway.   Thus  any
oversight  on  the part of Orebaugh in failing  to  pass  on  the
information regarding the rumor of alcohol use could not serve as
a basis for imposing liability on her.

     30     The  correctness of jury instructions is reviewed  de
novo.    Parnell  v.  Peak Oilfield Serv., 174 P.3d  757  (Alaska
2007):

          An  instruction that sets out an incorrect or
          incomplete  statement of the  applicable  law
          amounts to reversible error only if it causes
          substantial  prejudice to a party   that  is,
          only  if it can be said that the verdict  may
          have   been   different  had  the   erroneous
          instruction not been given.  When  evaluating
          whether there has been prejudicial error with
          regard  to  jury instructions, the  reviewing
          court must put itself in the position of  the
          jurors   and  determine  whether  the   error
          probably affected their judgment.
          
Id. at 765 (citations omitted).

     31    Jury Instruction No. 33 provided:

               Under certain circumstances, an employer
          may  be  legally responsible for the acts  of
          its   employee.   I[n]  order  to   determine
          whether  Susan and Richard Reeves  d/b/a  Red
          Oaks  Assisted Living are legally responsible
          for  the acts of Gary Austin, you must decide
          that  it  is more likely true than  not  true
          that  he  was  acting within the  course  and
          scope   of  his  employment.   In  order   to
          determine  whether he was acting  within  the
          course  and scope of his employment, you  may
          consider the following factors:
               (1) whether Gary Austins acts were of  a
          kind that he was employed to perform;
               (2)  whether Gary Austins acts  occurred
          substantially within the authorized time  and
          space limits of employment;
               (3)   whether  Gary  Austins  acts  were
          motivated, at least in part, by a purpose  to
          serve Susan and Richard Reeves d/b/a Red Oaks
          Assisted Living;
               (4)  whether  Gary  Austins  intentional
          acts  [were]  of  the type  and  nature  that
          [were]  not  unexpected by Susan and  Richard
          Reeves d/b/a Red Oaks Assisted Living;
               (5) whether the acts of Gary Austin were
          the kind or similar to the kind requested  by
          Susan  and  Richard  Reeves  d/b/a  Red  Oaks
          Assisted Living;
               (6)  whether the purpose of Gary Austins
          acts  were to serve Susan and Richard  Reeves
          d/b/a  Red Oaks Assisted Living, not his  own
          benefit;
               (7)  whether the acts of Gary Austin did
          in  fact serve Susan and Richard Reeves d/b/a
          Red Oaks Assisted Living;
               (8) whether the acts of Gary Austin were
          similar to other acts authorized by Susan and
          Richard Reeves d/b/a Red Oaks Assisted Living
          or   reasonably   related   to   other   acts
          authorized by Susan and Richard Reeves  d/b/a
          Red Oaks Assisted Living;
               (9) whether the acts of Gary Austin were
          reasonably necessary to accomplish  something
          that  Susan and Richard Reeves d/b/a Red Oaks
          Assisted Living requested or required;
               (10)  whether  the acts of  Gary  Austin
          were  of  the  type  that Susan  and  Richard
          Reeves   d/b/a/  Red  Oaks  Assisted   Living
          reasonably  should  have  expected   in   the
          performance  of  his  duties  to  Susan   and
          Richard   Reeves  d/b/a  Red  Oaks   Assisted
          Living;
               (11)  whether Gary Austin  was  able  to
          engage  in  acts with Ruth Ayuluk because  of
          authority, power, or access he had due to his
          employment at Red Oaks.
          
     32    Plaintiffs proposed aided-in-agency instruction stated:
(Proposed No. 46)

               I will now instruct you how to determine
          if  Red  Oaks is legally responsible for  the
          actions  of Gary Austin.  Under the law,  the
          fact  that Gary Austins actions may have been
          intentional,  criminal or  sexual  in  nature
          does   not   absolve  Red  Oaks  from   legal
          responsibility     for     those     actions.
          Furthermore,  the  fact  that  Gary   Austins
          actions may have been specifically prohibited
          by  Red  Oaks also does not absolve Red  Oaks
          from  legal responsibility for those actions.
          The  law  provides that Red Oaks  is  legally
          responsible for Gary Austins actions if  Gary
          Austin  was  aided in engaging in his  sexual
          contacts  with Ruth by his employment  within
          Red Oaks.
               There   are  several  factors  you   may
          consider   in  determining  whether   Austins
          sexual contact with Ruth was made possible or
          facilitated   by   the   existence   of   the
          employment  relationship between Gary  Austin
          and Red Oaks and the Reeves:
               1.     Did   Gary   Austins   employment
          relationship with Red Oaks and Reeves provide
          him with special access to Ruth?
               2.   Did that special access enable Gary
          Austin  to  engage in a sexual  contact  with
          Ruth?
               3.     Did   Gary   Austins   employment
          relationship with Red Oaks and Reeves provide
          Austin  with  the ability and opportunity  to
          conceal his sexual contact with Ruth?
               4.     Did   Gary   Austins   employment
          relationship with Red Oaks and Reeves provide
          Austin with authority over Ruth?
               5.   Was Ruth aware of that authority?
               6.    Did  that authority aid or  enable
          Austin  to  initiate and continue his  sexual
          contact with Ruth?
               These  facts are again merely guidelines
          for  your consideration.  It is not necessary
          that  every  one be present for Gary  Austins
          sexual  contact with Ruth to have  been  made
          possible  or facilitated by the existence  of
          the   employment  relationship  between  Gary
          Austin  and Red Oaks.  Furthermore,  you  are
          not  to  focus  solely  on  the  sexual  acts
          between Gary Austin and Ruth.  In determining
          whether Gary Austins sexual contact with Ruth
          was  made  possible  or  facilitated  by  the
          existence   of  the  employment  relationship
          between Gary Austin and Red Oaks you  are  to
          consider  the  sexual acts  as  well  as  his
          conduct  related to or leading  up  to  those
          acts.   You  are to consider the totality  of
          the circumstances, taking into account all of
          Gary  Austins actions, to determine  if  Gary
          Austins  sexual contact with  Ruth  was  made
          possible  or facilitated by the existence  of
          the   employment  relationship  between  Gary
          Austin and Red Oaks.
          
     33    970 P.2d 906, 914 (Alaska 1999).

     34    Id. at 914 (emphasis added in Veco).

     35    Id. (quoting  Meritor Savings Bank v. Vinson, 477 U.S.
57, 76-77 (1986) (Marshall, J., concurring.).

     36     Ruth testified:  He wanted it to be a secret  .  .  .
[t]elling  me  not to tell no one because he didnt  want  to  get
fired  too soon.  Ruth also testified:  I knew that he was  using
me, but I was like  if he is going to use me, I might as well  go
for it because . . . he is going to get caught one of these days.

     37    716 N.W.2d 220 (Mich. 2006).

     38    Id. at 226.

     39    See id. at 227.  Veco, Inc. v. Rosebrock, 970 P.2d 906
(Alaska   1999),  was  cited  by  the  Michigan  court  in   this
connection.  See Zsigo, 716 N.W.2d at 227 n.28.

     40     We  note for example that the Restatement (Third)  of
Agency  (2006) no longer endorses an aided-in-agency theory  when
an  agent is not acting with apparent authority.  See Restatement
(Third) of Agency  7.08 cmt. b (2006).

     41     For example, the Vermont Supreme Court has considered
the  question in at least two contexts, first in Doe v.  Forrest,
853  A.2d  48,  55-69 (Vt. 2004) (reversing a  grant  of  summary
judgment because the aided-in-agency theory could apply to county
sheriffs  department whose deputy coerced sex from a store  clerk
and  emphasizing  the  significance of law  enforcement  officers
power over others, their unique access to others as protectors of
citizens, and employers best position to prevent misconduct), and
more  recently in Doe v. Newbury Bible Church, 933 A.2d 196  (Vt.
2007)  (deciding  in  answering  certified  question  in  federal
diversity action that the aided-in-agency theory does not  extend
to  church and nonresidential school whose pastor abused a  young
student  and distinguishing Forrest because, among other reasons,
police  have greater power over citizens than a pastor  has  over
children).   See  also Hardwicke v. Am. Boychoir Sch.,  902  A.2d
900,  903-04,  918-20  (N.J.  2006)  (reversing  a  trial  courts
dismissal of claim against residential school of sexual abuse  of
child  by resident teacher in part because aided-in-agency theory
applied).

     42    Veco, 970 P.2d at 914.

     43     Id.  (quoting  College-Town v.  Mass.  Commn  Against
Discrimination, 508 N.E.2d 587, 593 (Mass. 1987)) (emphasis added
in Veco).

     44    Id. at 915 (citation omitted).

     45    As one of the expert witnesses on assisted living homes
testified in this case:

          A:   .  . . .  If youre an employee and youre
               in  a  position of power and youre in  a
               position of control and the person  that
               youre working with needs you to be  able
               to  help  them live their life and  live
               the quality of life that they are hoping
               to live, than thats all necessary.
               
          Q:   From    your    perspective    as     an
               administrator does it matter the  degree
               of  impairment  the  client  has  as  to
               whether or not sexual contact can occur?
               
          A:   I   I  think just by the virtue  of  the
               relationship of your being in control or
               your being in charge and you  the person
               needing you to fulfill their basic needs
               in  life,  no, theres never an  instance
               where  that  sort  of  thing  should  be
               permitted in a facility and  and allowed
               to occur.
               
     46    See 12 AAC 44.870(b)(18); 12 AAC 44.895(14).

     47     The  requested instruction read as follows: (Proposed
No. 37A)

               Plaintiff claims that Gary Austin was  a
          Certified  Nurse  Aide and that  he  violated
          certain regulations and statutes that  govern
          Certified Nurse Aides.  The defendants  claim
          that   Gary  Austin  was  not  acting  as   a
          Certified Nurse Aide when he was employed  by
          Red Oaks.
               If   you  find  that  Gary  Austin   was
          employed  as  a  Certified Nurse  Aide  while
          employed at Red Oaks, you must decide whether
          Gary    Austin    violated   the    following
          regulations and statutes.  If you do not find
          that  Gary Austin was employed as a Certified
          Nurse  Aide  while  at Red Oaks,  you  should
          disregard   the  following  regulations   and
          statutes.
               2       AAC       44.870.
               Unprofessional Conduct
               Unprofessional    conduct
               [of   a  certified  nurse
               aide]   includes  conduct
               that    could   adversely
               affect  the  health   and
               welfare   of  a   client,
               including
               . . .
                    (6)    failing    to
                    respect   a  clients
                    rights  and  dignity
                    regardless  of   the
                    clients  social   or
                    economic status, the
                    clients     personal
                    attributes,       or
                    nature    of     the
                    clients       health
                    problems          or
                    disability;
                    (7)  neglecting   or
                    abusing   a   client
                    physically,
                    emotionally,      or
                    verbally;
                    . . .
                    (18)   engaging   in
                    sexual misconduct.
               12     AAC    44.895(14).
               Definition   of    sexual
               misconduct.
               Sexual  misconduct  means
               sexual   conduct   by   a
               certified   nurse    aide
               involving  a client,  and
               includes
                    (A)        behavior,
                    gestures,         or
                    expressions that are
                    seductive,  sexually
                    suggestive,       or
                    sexually   demeaning
                    to the client;
                    (B) engaging in,  or
                    attempting to engage
                    in,           sexual
                    penetration  with  a
                    client;       sexual
                    penetration has  the
                    meaning given in  AS
                    11.81.900(b),     as
                    amended    as     of
                    October   9,   1998,
                    adopted           by
                    reference;
                    (C)  engaging in  or
                    attempting to engage
                    in,  sexual  contact
                    with    a    client;
                    sexual  contact  has
                    the meaning given in
                    AS  11.81.900(b), as
                    amended    as     of
                    October        1998,
                    adopted           by
                    reference.
               11.81.900(b)(55).
               Definition   of    sexual
               contact.
               Sexual contact means
                    (A) the defendants
                         (i)   knowingly
                         touching,
                         directly     or
                         through
                         clothing,   the
                         victims
                         genitals, anus,
                         or       female
                         breast; or
                         (ii)  knowingly
                         causing     the
                         victim       to
                         touch, directly
                         or      through
                         clothing,   the
                         defendants   or
                         victims
                         genitals, anus,
                         or       female
                         breast;
               11.81.900(b)(56).
               Definition   of    sexual
               penetration.
               Sexual penetration means
                    (A)          genital
                    intercourse,
                    cunnilingus,
                    fellatio,       anal
                    intercourse,  or  an
                    intrusion,   however
                    slight, of an object
                    or  any  part  of  a
                    persons  body   into
                    the  genital or anal
                    opening  of anothers
                    body;
                    . . .
                    (C)  each  party  to
                    any   of  the   acts
                    defined  as   sexual
                    penetration       is
                    considered   to   be
                    engaged  in   sexual
                    penetration.
               If  you  decide that it is  more  likely
          true  than not true that Gary Austin violated
          any part of these statutes or regulations and
          that the violation was a legal cause of Ruths
          injury,  then you are required to  find  Gary
          Austin  negligent per se.  But  if  you  find
          that Gary Austin did not violate any of these
          statutes  or  regulations,  then  you  should
          decide  whether Gary Austin is liable on  the
          basis of Plaintiffs other claims for relief.
          
     48    Jury Instruction No. 31 provided:

               In   order  to  prevail  on  any  claim,
          Plaintiff must establish that Ruth Ayuluk did
          not  have  the capacity to consent to  sexual
          relations  with  Gary  Austin,  or  did   not
          consent to sexual relations with Gary Austin.
          A  person  lacks the ability  to  consent  to
          sexual relations if that person suffers  from
          a   mental   condition   that   substantially
          prevents  the  person  from  being  able   to
          understand  either the nature or consequences
          of  engaging  in  sexual  activity.   If  the
          person understands that he or she is engaging
          in intimate or personal sexual behavior which
          may  have some effect or residual impact upon
          the person, upon the persons partner, or upon
          others,  then the person may have the  mental
          capacity to consent to sexual relations.
               Below  are some factors you may consider
          in  determining  whether  a  person  has  the
          capacity to consent to sexual relations:
               (1)  Whether the person knows  that  the
          conduct   he  or  she  is  engaging   in   is
          distinctively sexual;
               (2) Whether the person knows that he  or
          she  has  the right and ability to engage  in
          sexual activity;
               (3) Whether the person knows that sexual
          intercourse may lead to pregnancy  and  child
          birth;
               (4) The persons understanding of the use
          of birth control;
               (5)   The   persons  sexual  experience,
          including  the  nature  and  extent  of   the
          persons sexual relations with others;
               (6)  The mere fact that a person engaged
          in  sexual relations does not mean  that  the
          person has the mental capacity to consent  to
          sexual relations.
               Proof  of  general mental incapacity  or
          retardation or IQ range or mental  age  of  a
          victim  does not necessarily prevent a person
          from being able to understand the nature  and
          consequences of a sexual act,  but  it  is  a
          factor you may consider.
          
     49     Cf.  Restatement (Second) of Torts  892C(2) & cmt.  e
(1979) (If conduct is made criminal in order to protect a certain
class  of  persons irrespective of their consent, the consent  of
members  of that class to the conduct is not effective to  bar  a
tort  action.;  The legislative purpose to protect the  plaintiff
irrespective of his consent must be clear.  . . .  In making  the
determination as to the purpose, consideration will  normally  be
given  to  the fact that . . . there is a significant  inequality
between  the  situation  of the party consenting  and  the  party
guilty  of the conduct consented to.  The necessary purpose  will
ordinarily  be  found  when it is apparent that  the  statute  is
intended for the protection of a class of persons who, by  reason
of  their  immaturity,  inexperience, or lack  of  judgment,  are
unable  to  protect themselves against the conduct to which  they
are  likely to consent.); see also Joseph v. State, 26 P.3d  459,
473-74  (Alaska 2001) (holding that a jailers duty of  reasonable
care  to  protect  a  prisoner from unreasonable  risks  of  harm
encompasses reasonably foreseeable suicide attempts and that  the
intentionality  of  a  prisoners suicide  should  not  altogether
excuse that duty).

          Plaintiff   takes   issues  with   other   aspects   of
Instruction No. 31 with respect to the test for capacity and  the
factors listed in the instruction.  We think that Instruction No.
31 is not erroneous in these respects.

     50    Jury Instruction No. 30 provides:

               If   you   decide   that   Gary   Austin
          improperly touched Ruth Ayuluk, you must then
          decide  whether the improper touching  caused
          Ruth  Ayuluk  any actual physical  or  mental
          injury,  and if it did, you must  decide  the
          amount of money necessary to compensate  Ruth
          Ayuluk for that injury.
               If  you  decide  Gary Austin  improperly
          touched  Ruth  Ayuluk but that this  did  not
          cause  Ruth  Ayuluk  any actual  physical  or
          mental  injury,  you may  award  Ruth  Ayuluk
          nominal damages.
          
     51     Plaintiff raises a number of minor points that we  do
not discuss because they are either moot or obviously lacking  in
merit.

     52    See supra parts III.A , III.F.2.

     53     Arctic Motor Freight, Inc. v. Stover, 571 P.2d  1006,
1008 (Alaska 1977).

     54    Alaska R. Civ. P. 26(b)(1).

     55     But  a reasonable limitation in terms of the time  of
medical treatment could have been imposed.

     56    Langdon v. Champion, 745 P.2d 1371, 1373 (Alaska 1987)
(quoting Arctic Motor Freight, 571 P.2d at 1009).

     57     Another way is to depose, with subpoenas duces tecum,
the records custodians of healthcare providers who have treated a
plaintiff.

     58     Other courts have also recognized this benefit.  See,
e.g., Luciano v. Moore, 256 N.Y.S.2d 825, 826-27 (N.Y. Sup. 1965)
(noting  defendants  contention  that  (a)  they  should  not  be
compelled  to  accept plaintiffs opinion or  statement  that  the
accident  aggravated her medical condition and that  (b)  records
from  her  hospital  stays  would not shed  any  light  upon  the
injuries  for  which  she was suing, and requiring  plaintiff  to
authorize  the  release  of  medical  records  during  discovery,
stating  that  the  court would settle any disputes  between  the
parties  as  to  whether  the  hospital  records  relate  to  the
condition at issue and are admissible at trial).

     59     Whether  to  grant a continuance or permit  the  late
amendment  of  pleadings are questions left to the discretion  of
the  trial  court reviewable by this court only for an  abuse  of
discretion.  See Neal & Co., Inc. v. City of Dillingham, 923 P.2d
89, 94 n.6 (Alaska 1996).

     60    102 P.3d 282, 294 (Alaska 2004).

     61    Hutka v. Sisters of Providence in Wash., 102 P.3d 947,
959 (Alaska 2004).

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