Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Roderer v. Dash (7/2/2010) sp-6488

Roderer v. Dash (7/2/2010) sp-6488, 233 P3d 1101

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 13106
) Superior Court No. 3AN-04- 13294 CI
v. )
) O P I N I O N
) No. 6488 July 2, 2010
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Matthew K. Peterson  and  Linda
          Johnson,   Clapp,   Peterson,   Van    Flein,
          Tiemessen & Thorsness, Anchorage, and Sanford
          M.   Gibbs,  Brown,  Waller  &  Gibbs,  P.C.,
          Anchorage,   for   Appellants.    George   M.
          Kapolchok,  Kapolchok Law Offices, Anchorage,
          and   Cheryl  Mandala  and  Matthew   Singer,
          Jermain  Dunnagan  & Owens, P.C.,  Anchorage,
          for Appellee.

          Before:   Carpeneti, Chief Justice,  Winfree,
          and  Christen, Justices.  [Fabe and Eastaugh,
          Justices, not participating.]

          CHRISTEN, Justice.

          Deborah  Dash  brought  a  medical  malpractice   claim
against  Dr.  Grant Roderer based on a procedure he performed  to
relieve  her back pain.  A jury awarded Dash roughly $1.4 million
in  compensatory damages.  The superior court awarded Dash  costs
under  Alaska Civil Rule 79 and attorneys fees under Alaska Civil
Rule 68.  Dr. Roderer appeals from the denial of his  motions  to
dismiss, for judgment notwithstanding the verdict, and for a  new
trial.   He  also appeals the order awarding fees and costs.   We
affirm the superior courts denial of these motions and the courts
award  of  costs,  and  conclude that the courts  fee  award  was
invited error.
     A.   Dashs Pain And Treatment
          Dash  began  experiencing pain in her back, right  hip,
knee,  and  foot  in early 2001.  She managed her  pain  using  a
combination of over-the-counter drugs and Vicodin.
          Dash first saw Dr. Roderer, of Advanced Pain Centers of
Alaska  (APCA), in August of 2002.  Dr. Roderers first  treatment
of  Dash  involved  injecting steroids  into  her  spine.   These
treatments began in August 2002 and continued for several months,
but   did  not  provide  sufficient  relief.   Dr.  Roderer  then
performed  a  discogram1   an invasive diagnostic  procedure   on
October 22, 2002.  The procedure revealed problems with three  of
Dashs  discs.  Dr. Roderer and Dash discussed the results of  the
discogram  and  the  possibility  of  Intradiscal  ElectroThermal
Therapy  (IDET) as a treatment.  Dash agreed to undergo the  IDET
procedure and Dr. Roderer performed it at Providence Hospital  on
three  of  Dashs  spinal  discs.   The  IDET  procedure  involves
insertion of a small, wire-like heating element into a disc.  The
element  is then heated to roughly 194 degrees Fahrenheit.   Dash
testified  that  she was unconscious during the procedure  except
for  a  brief  period when she was roused by  insane  pain.   The
procedure left Dash initially unable to walk.  Roughly two  weeks
after the procedure, Dashs medication was no longer sufficient to
manage her pain and her husband persuaded Dr. Roderers office  to
prescribe  an alternative  apparently OxyContin.  About  a  month
after the procedure, Dash successfully transitioned from using  a
wheelchair to using a walker.
          Dash  was  evaluated by Dr. Onorato, a neurologist,  on
March  7, 2003.  Dr. Onorato had been treating Dash for migraines
and  another  nerve  condition for several  years.   Dr.  Onorato
diagnosed  nerve damage at L5-S1 that affected Dashs  ability  to
use her left leg.2
          Dash  moved  to Idaho in March of 2003.  At that  point
she began receiving treatment through the Idaho Pain Center.
     B.   The Dashes File Suit
          Dash  and  her husband, David Dash, filed suit  against
Dr.  Roderer  and APCA on December 14, 2004.3  They alleged  that
the  IDET  caused  nerve  damage which  led  to  increased  pain,
decreased mobility, and decreased quality of life for Dash.  They
alleged that Dr. Roderer  failed to exercise the degree of  skill
and  care  necessary to perform the IDET properly, and failed  to
obtain  Dashs  informed  consent to  the  procedure.   They  also
alleged that David Dash suffered damages from loss of society and
loss of consortium.
     C.   The Dashes Offer Of Judgment
          On July 28, 2006 the Dashes conveyed a settlement offer
pursuant  to Rule 68.  The document offered to allow judgment  to
          be entered against defendants Grant T. Roderer, M.D., and
Advanced  Pain  Centers  of  Alaska,  Inc.,  in  the  amount   of
$450,000.00  inclusive  of  costs,  pre-judgment  interest,   and
attorney  fees,  in  complete satisfaction of plaintiffs  claims.
The document was signed by the Dashes attorneys secretary for and
with permission of the attorney.  The offer was not accepted.
          In  October 2006 counsel for the Dashes and Dr. Roderer
stipulated  to dismiss David Dash as a party to the  case.   This
stipulation was approved by the superior court in November 2006.
     D.   Expert Report Issue
          Dr.  Roderer moved to dismiss the plaintiffs  complaint
on  October  27, 2006 because Dash had failed to file  an  expert
report  by the courts August 10, 2006 pre-trial deadline.   Dashs
attorney filed an opposition, along with a working draft  of  the
report  of  Dashs expert, Dr. Eric Boyd.  Dr. Roderer replied  to
Dashs  opposition with a Notice of Continuing Non-Compliance  and
Request for Ruling in which he questioned the authenticity of the
working  draft.  In response, Dashs attorney explained  that  he,
not  Dr.  Boyd,  had authored the working draft, and   asked  the
court  for a continuance so that an adequate expert report  could
be  obtained.   The  superior court granted the  continuance  and
denied  the  motion  to dismiss but ordered  that  Dash  pay  Dr.
Roderers attorneys fees incurred because of the delay.  The court
also  ordered that Dashs attorney pay a $2,500 sanction, that  no
further continuances would be allowed, and that failure to  abide
by  the courts order would result in dismissal of the action.   A
final version of Dashs expert report was later produced.
     E.   Trial And Verdict
          Trial  was held before a jury beginning June 25,  2007.
The  jury  heard testimony from medical experts for both parties.
Dr.  Roderer  moved  for  a  directed verdict  at  the  close  of
evidence,  arguing  that  there was not  sufficient  evidence  to
support   a   finding  that  Dash  suffered  a  severe  permanent
impairment.  The motion was denied as to the alleged injury at L5-
S1 but granted as to injuries at other locations.4
          The  jury  found  that  Dr. Roderer  was  negligent  in
treating Dash, that he failed to get her informed consent  before
performing  the  IDET procedure, that these failings  were  legal
causes  of harm to Dash, and that Dash suffers from one  or  more
severe  permanent  physical impairments.  The jury  awarded  Dash
$1,404,618  in compensatory damages for past and future  economic
and non-economic losses.
          Dr.  Roderer  moved for relief from the  verdict  under
three  alternative  theories:  (1) judgment  notwithstanding  the
verdict,  based  on  the argument that the preparation  of  Dashs
expert  report violated the civil rules and warranted  dismissal;
(2)  a  new  trial, either on the merits or limited  to  damages,
based  on  the  argument that Dash had not introduced  sufficient
evidence  and  the  jurys award was a product of  passion  and/or
prejudice;  and  (3) remittitur, based on the argument  that  the
jurys  award  of  damages  was not adequately  supported  by  the
evidence.  All of these motions were denied.
     F.   Award Of Attorneys Fees
          On  July 9, 2007 Dash filed a motion for entry of final
judgment  to  include  prejudgment interest and  attorneys  fees.
Because the amount the jury awarded was greater than the Rule  68
settlement offer, Dash argued that she was entitled to  an  award
of  fifty  percent of her reasonable actual attorneys fees  under
Rule  68.  She measured her reasonable actual attorneys  fees  as
the   amount  she  was  obligated  to  pay  under  her  attorneys
contingent  fee  agreement:  forty percent  of  her  total  gross
recovery  if the case went to trial.  Dash requested an award  of
attorneys  fees in the amount of fifty percent of the  amount  of
fees owed under the contingency fee agreement, or $319,654.87.5
          Dr.  Roderer  opposed the motion for fees.   He  argued
that  the  purported Rule 68 offer of judgment  was  invalid  for
three reasons: (1) it was made to two defendants; (2) it was made
by  two  plaintiffs;  and (3) it was signed  by  Dashs  attorneys
secretary,  not Dashs attorney.  Dr. Roderer also  demanded  that
Dashs   attorney  submit  an  accounting  of  time  and  services
performed  and his hourly rate to allow Dr. Roderer to  challenge
time  spent  on  improper projects, such as writing  the  working
draft of Dr. Boyds expert report.
          In  response, Dash argued that the settlement offer was
valid and that Rule 68 did not require an itemized billing record
in  the  circumstances  of this case.  Dash  explained  that  her
actual fees will be 40% of the total gross recovery.  These  fees
are  reasonable and in fact standard.  Plaintiff lawyers  do  not
keep track of their time for billing purposes.
          The  superior  court  rejected Dr. Roderers  arguments,
initially  ordering him to pay fifty percent  of  the  fees  owed
under the contingency agreement.  But Dr. Roderer argued that the
court should reduce the attorneys fee award to avoid compensating
Dash  for  work  her  attorney did before serving  the  offer  of
judgment.6   Dr. Roderer argued that of the hours billed  by  his
attorney,` only seventy percent were incurred after the offer was
made  and  that  unless  Dashs attorney could  show  a  different
pattern  of  work, Dashs attorneys fees should be reduced  by  at
least  thirty  percent.  Dash agreed to that reduction   and  the
superior court awarded attorneys fees accordingly.
     G.   Award Of Costs
          Dash  moved  for  costs under Rule 79 and  included  an
itemized cost bill.  Dr. Roderer opposed, arguing that the  court
should  strike  the  motion because it was not  signed  by  Dashs
attorney.   The opposition compared copies of the signature  that
appeared  on  the  request for costs against the  signature  that
appeared on an earlier affidavit of Dashs attorney.  Though  both
signatures  are  in Dashs attorneys name, the two signatures  are
not  similar.   Dr.  Roderer argued that Dashs attorney  had  not
personally signed the motion for costs, and that this  posed  two
problems:  (1)  Alaska  Civil Rule 11  requires  that  pleadings,
motions  and other papers filed on behalf of a represented  party
must be signed by an attorney; and (2) Rule 79 requires that  the
request  for  costs  must be itemized and verified,  imposing  an
independent requirement that Dashs attorney personally review and
sign the motion.  Dr. Roderer also questioned certain entries  in
the  bill,  asked that Dash be required to produce receipts,  and
          requested that the charges be reviewed by the clerk of court.
          The superior court did not strike the motion for costs,
referring  it instead to the clerk for determination.  The  court
denied Dr. Roderers motions for post-trial relief from the  jurys
verdict and entered final judgment.   Dr. Roderer appeals.
          We  review  a  trial  courts  imposition  of  discovery
sanctions for abuse of discretion.7  When reviewing a denial of a
motion  for  judgment notwithstanding the verdict, we review  the
record in a light most favorable to [sustaining the verdict], and
reverse   only  if  reasonable  and  fair-minded  persons   would
invariably have found other than the jury found.8
          When  reviewing  an order denying a motion  for  a  new
trial,  we will affirm if there is an evidentiary basis  for  the
jurys decision,9 and will only reverse if the evidence supporting
the  verdict was so completely lacking or slight and unconvincing
as to make the verdict plainly unreasonable and unjust.10
          We  review  awards  of  attorneys  fees  for  abuse  of
discretion   and  will  reverse  if  the  award   is   arbitrary,
capricious,  manifestly unreasonable, or improperly  motivated.11
We  review the interpretation of the civil rules authorizing  fee
awards de novo.12
     A.   The Superior Courts Refusal To Dismiss Dashs Case As  A
          Discovery Sanction Was Not An Abuse Of Discretion.
          Dr.  Roderer  argues that the superior court  erred  by
denying his pre-trial motion to dismiss.  Dr. Roderer argued that
Dashs  complaint  should have been dismissed  when  her  attorney
authored  the  working draft of her experts report and  filed  it
with the court.13  We conclude the superior court did not err when
it denied Dr. Roderers motion to dismiss.
          Dr. Roderer moved for dismissal because Dash failed  to
timely  file an expert witness report.  To avoid dismissal,  Dash
filed  a  working  draft of Dashs expert  witnesss  report.   The
document  was  unsigned  and it was on blank  paper  rather  than
letterhead.   The pleading that accompanied it did  not  disclose
that the working draft was the work product of Dashs counsel.  It
stated:  The report . . . is not signed by Dr. Boyd, but this  is
being  accomplished.  Upon learning that Dashs attorney  authored
the  document,  Dr.  Roderer argued that  Dashs  case  should  be
dismissed with prejudice.  The superior court determined that Dr.
Roderers  motion  to  dismiss was in fact a  motion  for  summary
judgment,  denied the motion, granted a continuance of the  trial
date,   and  sanctioned  Dashs  attorney.   The  superior   court
explained that:
          [e]ffectively, this [m]otion to [d]ismiss  is
          really   a   motion   for   litigation-ending
          sanctions   for  violation  of  this   courts
          discovery  orders; namely, the  deadline  for
          filing  expert  reports.  Alaska  Civil  Rule
          37(b)(3)(E)   provides  that   if   a   party
          willfully  violates a court order to  provide
          discovery, the court may dismiss a  claim  or
Citing  the preference for addressing the merits of a  case,  the
court  declined  to impose litigation-ending sanctions,  but  did
impose significant sanctions.  The court ordered Dash to pay  Dr.
Roderer  all  costs  associated with the continuance,  sanctioned
Dashs  attorney $2,500, and warned that further failure to comply
with  the  courts discovery orders would result in  dismissal  of
this case.
          A  superior courts imposition of sanctions under Alaska
Rule of Civil Procedure 37(b) for a partys failure to comply with
a discovery order is . . . reviewed for abuse of discretion.14  A
decision  constitutes abuse of discretion  if  it  is  arbitrary,
capricious,  manifestly unreasonable, or .  .  .  stems  from  an
improper motive.15
          We  have  explained that the sanction of  dismissal  is
only  allowed  in  extreme cases because a party  should  not  be
barred  from his or her day in court where an alternative  remedy
would  suffice to make the adverse party whole.16  In other cases
we  have  closely scrutinized the imposition of litigation-ending
sanctions,17 explaining:
          Because of the extreme nature of dismissal  .
          .  .  before  a case is dismissed  the  trial
          court   must   first  find   (1)   that   the
          non-complying   party  acted   willfully   to
          violate the order in question, (2) that there
          is resulting prejudice to the opposing party,
          and   (3)  that  the  imposed  dismissal   is
          sufficiently  related  to  the  violation  at
          issue.   In addition, the court must consider
          a  reasonable exploration of alternatives  to
          dismissal   and  whether  those  alternatives
          would  adequately protect the opposing  party
          as    well    as   deter   other    discovery
The superior court took the situation seriously, recognizing that
[t]his  is  a  case  where  litigation-ending  sanctions  may  be
appropriate, but because the court was able to devise alternative
sanctions  that would alleviate . . . the monetary  prejudice  to
the  defendants, the court concluded that significant  sanctions,
short of litigation-ending sanctions, are warranted here.
          It  is  well settled that the superior court  has  wide
discretion  in imposing sanctions for violation of its  discovery
orders.19   In  this  case, it is not clear  that  dismissal  was
required  to  adequately protect the opposing party  as  well  as
deter other discovery violations,20 and we do not otherwise  find
the superior courts decision arbitrary, capricious, or manifestly
unreasonable.   The  superior courts decision  was  a  conscious,
measured response to the discovery violation.  We do not  believe
the superior court abused its discretion when it sanctioned Dashs
attorney and denied Dr. Roderers motion to dismiss.
          After   the   verdict,  Dr.  Roderer  sought   judgment
notwithstanding  the  verdict on the same basis  as  his  earlier
          motion to dismiss  Dashs failure to file a timely expert witness
report  and  the working draft filed with the court.  The  motion
for   judgment  notwithstanding  the  verdict  expanded  on  this
argument with information acquired from the expert in discovery.21
For  the  reasons  already discussed, we find that  the  superior
courts  denial of this motion was not an abuse of its  discretion
and we decline to overturn it.
     B.   Dr. Roderer Is Not Entitled To Judgment Notwithstanding
          The Verdict.
          Dr.  Roderer  argues on appeal that the  jurys  verdict
cannot  stand because Dash failed to present sufficient  evidence
to allow the jury to find all of the elements of Dashs negligence
claim.   Dr.  Roderer  made two motions for  a  directed  verdict
during trial, but neither was on this ground.
          Alaska   Civil   Rule  50(b)  provides  that   judgment
notwithstanding  the verdict may be entered  only  in  accordance
with  [a previously entered] motion for a directed verdict.   Dr.
Roderers  first motion for directed verdict was made  before  the
close  of  evidence, and the superior court reserved judgment  on
it.   The  second,  made after the close of  evidence,  made  two
arguments:  (1)  Dash  did  not present  sufficient  evidence  to
support  a  finding of severe permanent physical impairment;  and
(2) Dash did not present evidence to support an argument that the
procedure  Dr. Roderer performed injured Dash in locations  other
than L5-S1.22  Dr. Roderer did not seek a directed verdict on the
ground  that  Dash  had not presented sufficient  expert  witness
testimony  to support jury findings on standard of care,  breach,
or causation.
          We  have  explained that [w]here a party fails to  move
for  a  directed verdict at the close of the evidence, a superior
courts refusal to grant a judgment n.o.v. cannot be considered on
appeal.23  Dr. Roderers failure to move for a directed verdict on
the  grounds he now asserts would have precluded him from  moving
for  judgment notwithstanding the verdict on those grounds before
the  superior  court.  His failure to make this argument  in  the
trial court precludes him from making it on appeal.
     C.   Dr. Roderer Is Not Entitled To A New Trial.

          Dr.  Roderer argues that the superior court should have
granted his post-verdict motion for a new trial.  In this motion,
Dr.  Roderer argued that: (1) a jury instruction wrongly  created
an  irrefutable  presumption of a breach of duty;  and  (2)  Dash
failed  to  present  sufficient expert  testimony  to  sustain  a
verdict  on  negligence.  Dash argues that the  jury  instruction
challenge is waived, that the challenge itself is without  merit,
and  that the jurys finding on informed consent renders moot  the
claim  that  there  was  insufficient  evidence  to  support  the
negligence claim.24  We agree with Dash on each of these points.
          1.   The  jury instructions do not support Dr. Roderers
               request for a new trial.
          Dr.  Roderer  argues that the jurys verdict  should  be
vacated  because jury instruction 25.1 probably led the  jury  to
believe that Dr. Roderers inability to produce Dashs consent form
          or additional photographs documenting the IDET procedure was
sufficient  grounds for imposing liability on Dr. Roderer.   Dash
argues  that  Dr.  Roderer waived this  argument  by  failing  to
articulate it distinctly before the instructions were given.   We
agree that the objection was waived, but also consider the merits
of  the  argument  and find that giving the instruction  was  not
reversible error.
               i.   The  objection Dr. Roderer raises  on  appeal
                    was not raised at trial.
          Alaska  Civil Rule 51(a) bars a party from  arguing  on
appeal  that  a  jury instruction was improper unless  the  party
objects  thereto before the jury retires . . . stating distinctly
the  matter  to  which the party objects and the grounds  of  the
objection.  We have explained that the rule is intended to ensure
that a trial judge is clearly made aware of the precise nature of
the alleged error,25 and we have interpreted this rule to require
a  relatively specific articulation, before the trial  court,  of
the same argument raised on appeal.
          In  Van Huff v. Sohio Alaska Petroleum Co., an employee
suing  for  wrongful termination objected to an instruction  that
would  have immunized the employer if the termination was  for  a
legitimate business purpose.26  The employee argued at trial that
the  instruction should explain that the business purpose had  to
be  reasonable;  but  on  appeal, the employee  argued  that  the
instruction should have defined legitimate business purpose.27  We
declined  to consider this argument on appeal, finding it  to  be
entirely  different from that raised at trial.28   Similarly,  in
Hout v. NANA Commercial Catering, a plaintiff alleging employment
discrimination objected to jury instructions on the grounds  that
they  placed too heavy a burden on the plaintiff.29   On  appeal,
Hout  argued that the instructions were flawed because they  were
not based on the principles advanced by the United States Supreme
Court in McDonnell Douglas Corp. v. Green,30 a federal employment
discrimination  case articulating the burden-shifting  rules  now
commonly applied in such cases.31  We held that this argument was
waived for failure to articulate it at trial:
          The  issue is not properly before this  court
          because  Hout failed to submit to  the  trial
          court  instructions that were patterned after
          the  McDonnell Douglas decision and  did  not
          object to the courts proposed instructions on
          this  ground.  She objected generally to  the
          instructions,  saying they placed  on  her  a
          heavy  burden,  but  she did  not  distinctly
          state the grounds of her objection or suggest
          corrective language consistent with McDonnell
          Douglas principles.[32]
          Dash  offered  jury instruction 25.1, and  Dr.  Roderer
objected to it.  But the circumstances of Dr. Roderers objections
to jury instruction 25.1 are similar to those in Hout.  As it was
initially   proposed,  jury  instruction   25.1   contained   two
paragraphs.  The first read:  A physician is required to make and
          keep records of his patients treatment.  The second paragraph
referred  to  a  specific record Dr. Roderer  had  not  produced.
Dr. Roderers counsel objected to identifying the specific record,
calling it argumentative.  The superior court removed the  second
paragraph  and asked Dr. Roderer if he objected to the  remaining
sentence, A physician is required to make and keep records of his
patients treatment.  Dr. Roderers counsel responded:
          Well, Id still object to that because its not
          theres not a factual issue for them to decide
          relating to that one way or the other, and so
          I  would  object to that in its entirety  but
          its  I think its substantially [im]proved  by
          taking out that second paragraph but I   just
          for   the  record,  I  object  to  the  whole
The court gave the single-sentence instruction to the jury.
          On  appeal,  Dr. Roderer contends that this instruction
may  have  caused the jury to believe that Dr. Roderer  could  be
held  liable for failure to obtain informed consent on the  basis
of the record missing from Dashs patient file.  But this argument
was  not specifically raised before the superior court.   Had  it
been,  the  superior court could have evaluated  whether  to  add
further  instructions to clarify that liability  for  failure  to
obtain informed consent requires more than proof that Dr. Roderer
failed  to  keep his records properly.  As it is,  in  accordance
with  the  standard for waiver applied in Hout and Van  Huff,  we
find this argument waived.
               ii.   Giving jury instruction 25.1 was  not  plain
          Absent a specific objection at trial that complies with
Rule  51(a), we will not review [a] jury instruction  unless  the
giving  of  the  challenged instruction was plain  error.   Plain
error will be found when an obvious mistake exists such that  the
jury  instruction creates a high likelihood that  the  jury  will
follow an erroneous theory resulting in a miscarriage of justice.33
Dr. Roderer argues that jury instruction 25.1, while generally  a
correct statement of the law, was incorrect in this instance  and
should  not have been given because it may have led the  jury  to
apply  an erroneous theory of liability.  Specifically, he argues
that  the  jury might have concluded that Dr. Roderer  should  be
found  liable  for Dashs injuries because some of  Dashs  medical
records were missing from her file.  Dr. Roderer asserts that the
instruction may have led the jury to believe that the  mere  fact
that  some  of  Dashs  medical records were missing,  by  itself,
established  that  he was negligent or had not obtained  informed
consent.   There  was no argument presented at  trial  along  the
lines Dr. Roderer suggests.34
          The   special  verdict  form  required  that  the  jury
separately  determine whether Dr. Roderer (1) was negligent,  (2)
failed to obtain Dashs informed consent, and, if so, whether each
failure was a legal cause of harm to Dash.  The jury answered yes
to  each  of  these questions.  A review of the jury instructions
explaining  negligence and informed consent refutes Dr.  Roderers
          argument.  The only instruction purporting to define negligence,
instruction  11, defined negligence as the failure  to  meet  the
standard  of care; it explained that the jury must determine  the
standard  of care only on the basis of [the] opinions offered  by
[the  doctors]  who  have testified as expert  witnesses  on  the
standard  of care.  Thus, the jury had no basis to conclude  that
the  failure  to keep adequate records, without more, constituted
          Even if the jury did find that Dr. Roderers failure  to
keep records breached his duty of care, they were instructed that
to  impose  liability based on negligence they had to  also  find
that  the negligence was a legal cause of the harm Dash suffered.
Dr. Roderer has not suggested how the conclusion that the failure
to  keep  adequate records constituted negligence was  reasonably
possible under the facts of this case, and it is improbable  that
the jury imposed liability on this basis.
          It  is also unlikely that the instruction affected  the
jurys finding on informed consent.  Dr. Roderers concern seems to
be that the jury might have used instruction 25.1 as a basis from
which  to infer that Dr. Roderers failure to produce a record  of
informed consent meant that he failed to obtain informed consent.
But   the   jury  had  strong  evidence  before  them  supporting
plaintiffs  informed consent claim.  The jury  heard  the  Dashes
testify about what they were and were not told about the risks of
the  procedure  and  their  testimony amply  supports  the  jurys
finding  that  Dash did not give informed consent.  For  example,
Dash  testified  that  Dr.  Roderer  claimed  to  have  performed
hundreds of IDETs but he later admitted that Dashs procedure  may
have been the first three-level IDET he had ever performed.  Dash
also testified she was never told that the procedure might result
in nerve damage.  Dr. Roderer testified that he typically obtains
a  written  acknowledgment of informed consent, that  he  did  so
here, that he typically sends a copy to Providence Hospital  when
the  procedure  will be performed there, but that  he  could  not
locate  a copy of the consent form he asserts Dash signed  before
undergoing the IDET.  Considering this evidence, we do  not  find
merit  in  Dr.  Roderers  contention that jury  instruction  25.1
created  a  high likelihood that the jury followed  an  erroneous
theory.   We conclude that giving jury instruction 25.1  was  not
plain error.
          2.   The jurys finding on informed consent renders moot
               any failure of evidence on the negligence claim.
          Dr.  Roderer argues that Dashs expert testimony was not
sufficient  to  allow the jury to find each of  the  elements  of
negligence.  Dash counters that even if the expert testimony  was
insufficient  to  support  the jurys  finding  that  Dr.  Roderer
negligently performed the IDET procedure, the jurys finding  that
Dr. Roderer failed to obtain Dashs informed consent is sufficient
to  sustain  the jurys award.  We agree with Dash.  The  informed
consent  finding was not challenged by Dr. Roderer on appeal  and
it  independently supports the jurys liability finding.  For this
reason,  we  do  not  reach Dr. Roderers argument  regarding  the
sufficiency of the evidence supporting the negligence claim.
     D.   The  Rule  68  Offer Was Valid And The Method  Used  To
          Calculate Fees Was Invited Error.
          Dr.  Roderer  argues that the award of  attorneys  fees
under  Rule 68 should be vacated for three reasons:  (1) Rule  68
was  not applicable because Dashs settlement offer was not signed
by  Dashs attorney; (2) the offer did not trigger Rule 68 because
it  was  not inclusive of [all] the relationships of the  parties
and  presented apportionment problems; and (3) the  award  amount
was  improperly calculated because the superior court relied upon
Dashs  contingency fee agreement and did not require  itemization
of  the hours her attorney worked.  We conclude that the Rule  68
offer  was  valid.  Though the method used to calculate attorneys
fees  was  incorrect, we conclude that the erroneous  calculation
was invited error.  We affirm the award of attorneys fees.
          1.    The Dashes attorney was not required to sign  the
          Dr.  Roderer  argues that the Dashes offer of  judgment
did  not  trigger  Rule 68 because it was signed  by  the  Dashes
attorneys  secretary  for and with permission  of  the  attorney,
rather  than by the attorney himself.  The superior court  agreed
that  Rule  11s  signature requirement applied to  the  offer  of
judgment, but concluded that it was within the discretion of  the
court to strike the [o]ffer of [j]udgment, and declined to do so.
We conclude that the offer of judgment did not violate Rule 11.
          In pertinent part, Rule 11 states:
          Every  pleading, motion and other  paper
          of  a  party represented by an  attorney
          shall be signed by at least one attorney
          of  record  in the attorneys  individual
          name  .  .  .  .  The  signature  of  an
          attorney   or   party   constitutes    a
          certificate  by  the  signer  that   the
          signer has read the pleading, motion, or
          other  paper; that to the  best  of  the
          signers   knowledge,  information,   and
          belief  formed after reasonable  inquiry
          it  is  well  grounded in  fact  and  is
          warranted  by  existing law  or  a  good
          faith   argument   for  the   extension,
          modification,  or reversal  of  existing
          law,  and that it is not interposed  for
          any  improper purpose, such as to harass
          or   to   cause  unnecessary  delay   or
          needless   expense  in   the   cost   of
          litigation.  If a pleading,  motion,  or
          other  paper is not signed, it shall  be
          stricken  unless  it is signed  promptly
          after  the  omission is  called  to  the
          attention of the pleader or movant.[35]
Dr.  Roderer cites no authority to support his contention that  a
Rule  68  offer  of  judgment is subject to  Rule  11s  signature
requirement, and we have never addressed this issue.  The  Dashes
Rule  68  offer  of judgment was addressed to and served  on  Dr.
Roderers  attorney,  as  is  typical when  issuing  such  offers.
Offers  of judgment are filed with the court only upon acceptance
or, if rejected, in conjunction with post-trial motions for fees.
Here,  the  offer of judgment was submitted to the  court  as  an
attachment  to  Dashs  July 9, 2007 Motion  for  Entry  of  Final
Judgment,  Award of Prejudgment Interest, and Award  of  Attorney
Fees.   The  motion was signed by counsel.  This filing satisfied
the requirements of Rule 11.
          2.   The  multiplicity of parties and  claims  did  not
               prevent the offer from triggering Rule 68.
          Dr.  Roderer  argues  that the  Dashes  offer  did  not
trigger Rule 68 because it was not inclusive of the relationships
of the parties and presented apportionment problems.  Dr. Roderer
argues: (1) because David Dash had an independent claim that  was
distinct  and  separate from Deborah Dashs claim,  the  offer  of
judgment did not meet the test for joint offers set by this court
in  Johns Heating Service v. Lamb; and (2) because there were two
separate  and  distinct claims brought against  Dr.  Roderer  and
Advanced Pain Centers, apportionment would have been difficult.
          The  test for whether a multi-party offer of settlement
triggers Rule 68 is described in Johns Heating Service v. Lamb.36
In  that  case, we held that an offer will trigger the  rule  if:
(1)  the  offer was inclusive of all the relationships among  the
parties  and  their  conflicting claims,  which  means  that  the
settlement offer clearly indicated all claims between the parties
would  be  resolved  if  the  offer  were  accepted  and  (2)  no
apportionment difficulty existed.37  The superior court addressed
Dr.  Roderers  claim that the Johns Heating  test  was  not  met,
rejecting  it  with little explanation.  The question  whether  a
settlement offer triggers Rule 68 is a legal one that this  court
reviews de novo.38
          The Dashes offered to accept a certain sum of money  in
complete   satisfaction  of  plaintiffs  claims.   This  language
clearly  indicated  that if the offer was  accepted,  all  claims
between the parties would be resolved.39  The claims against APCA
were  based solely on respondeat superior.  We have not addressed
this particular application of respondeat superior before, but we
do  not find that it presents an apportionment problem given  the
facts  of  this case.40  None of the parties ever contended  that
APCA  was exposed to liability for any reason other than via  the
doctrine of respondeat superior.  We have consistently held  that
settlement  offers  do not trigger Rule 68 if  they  would  leave
unresolved  serious disputes that, absent settlement, would  have
to   be  resolved  by  a  jury,41  but  we  conclude  under   the
circumstances of this case that the Dashes offer did not  present
an apportionment problem.
          3.   The  superior courts calculation of Rule  68  fees
               was invited error.
          Dr.  Roderer argues that the superior court erred  when
it  calculated  Dashs attorneys fee award.   Rule  68  authorizes
trial courts to award a percentage of a partys  reasonable actual
          attorneys fees incurred by the offeror [of an offer of judgment]
from  the  date  the  offer was made . . .  .42   Dashs  attorney
represented  her pursuant to a written fee agreement that  called
for  forty  percent of Dashs total gross recovery.43   The  court
accepted  the amount of fees Dash owed her attorney  under  their
contingent fee agreement as her total reasonable, actual fees and
used defense counsels hourly time records to approximate the fees
she  incurred  after the date of the Rule 68 offer  of  judgment.
Dr.  Roderer argued that fees under Rule 68 cannot be based on  a
contingency  fee  and  requested  that  Dashs  attorney   provide
itemized bills.
          In  Marron  v.  Stromstad, we addressed a  request  for
itemization  in conjunction with a Rule 68 motion  for  fees  and
held  that, where the rule authorizes reasonable actual  fees,  a
court  may  not  award  attorneys fees to a  party  who  has  not
itemized  his or her requested fees, when the opposing party  has
requested such itemization.44  Dashs counsel did not keep track of
the  hours he actually worked on the case, but the superior court
accepted  the  contingency fee award as a measure  of  plaintiffs
reasonable,  actual fees.  Dr. Roderers counsel then argued  that
even  if itemized bills could not be produced, Dr. Roderer should
only  be  responsible  for the portion  of  the  contingency  fee
reflecting  work  performed after the  July  28,  2006  offer  of
judgment.   Dr.  Roderers counsel argued to  the  superior  court
          [Dashs]  attorney did not keep track  of  his
          time,  which is why [Dash] does not  want  to
          provide her attorneys actual time spent. [Dr.
          Roderers]  attorney did  keep  track  of  his
          time,  and  believes that it is a  reasonable
          estimate  of  fees in this instance.  .  .  .
          [R]oughly  30%  of  [Dr. Roderers  attorneys]
          time  on  the case was prior to the offer  of
          judgment, and 70% after offer through trial .
          .  .  .  [A]t a minimum, [Dr. Roderer] should
          only be responsible for . . . 70% of one half
          of the contingency fee . . . .
As  we  acknowledged in Marron, a superior court  may  not  award
attorneys fees based only on an estimate of what fee amount  [is]
reasonable.45   Though we have never suggested that  Rule  68  is
limited  to cases where the fee-seeking party is obliged  to  pay
his  or her attorney by the hour,46 the percentage of total hours
worked  by  Dr. Roderers attorney after July 28, 2006  cannot  be
described  as Dashs counsels reasonable, actual fees  during  the
same  time period.  The superior courts reliance on Dr.  Roderers
attorneys  time  records to measure the  number  of  hours  Dashs
counsel  worked  was error.  But this method of  calculation  was
suggested  by Dr. Roderer.  Invited error occurs when  the  court
takes  erroneous action at the express request of [a party],  and
then [that party] urges reversal on that basis on appeal.47  When
an error is invited, an appellate court examines the error to see
if  there is an exceptional situation where reversal is necessary
to preserve the integrity of the judicial process or to prevent a
miscarriage of justice.48  In our view, the facts of this case do
not  rise  to this level.  The integrity of the judicial  process
was  not  threatened by the superior courts use of  Dr.  Roderers
proposed estimate of attorneys fees where Dr. Roderer agreed that
this  was  reasonable  and the court had  no  basis  to  conclude
otherwise.  Though the trial court erred by adopting this  method
of  calculating  Dashs fees, reversal of the award  of  attorneys
fees  is  not necessary under the doctrine of invited error.   We
therefore affirm the superior courts award of fees.
     E.   The Award Of Costs Was Proper.
          Dr.  Roderer argues that the superior court should have
struck Dashs request for costs because it was not signed by Dashs
attorney.   The  request for costs was signed in Dashs  attorneys
name, but Dr. Roderer argued  and the superior court agreed  that
the  signature did not resemble the one typically used  by  Dashs
attorney.  Dashs attorney filed an affidavit asserting  that  the
signature  was his own and the superior court refused  to  strike
the  request for costs.  The court noted that (1) Dashs  attorney
stated  that the signature was his own in an affidavit,  and  (2)
the  remedy  for an unsigned document under Rule 11 would  be  to
require  the  attorney to sign the pleading.  The superior  court
ordered  that  in  this case (and in other cases  in  which  [the
attorney]  is  before  this judge) [the attorney]  use  only  one
signature  for all documents he signs and files with  the  court,
and  it  should  be the one that is filed with the  Complaint  or
          We  review  a  superior  courts  refusal  to  strike  a
pleading  under  Rule  11 for abuse of discretion.   Because  the
attorney  affirmed, in a signed affidavit, that the signature  on
the  contested  document was his own, we find that  the  superior
court  did  not  abuse its discretion by failing  to  strike  the
pleading.  We find no error in the trial courts award of costs.
          We  AFFIRM  the superior courts denial of Dr.  Roderers
motions to dismiss, for judgment notwithstanding the verdict, and
for  a  new trial.  We also AFFIRM the courts award of  fees  and
     1    At trial, the terms discogram and discography were used

     2     L5-S1  designates  a particular  disc  in  the  spinal
column.   The  IDET  procedure  Dr.  Roderer  performed  on  Dash
involved  treatment  of three discs; one of them  was  the  L5-S1

     3     Dashs  claims against APCA were asserted only via  the
doctrine  of  respondeat superior; the parties  treated  the  two
defendants  as a single entity for purposes of this  case.   This
opinion refers to the defendants as Dr. Roderer for simplicity.

     4     Dr. Roderer also argued that there was no evidence the
IDET procedure injured Dashs spine at locations other than L5-S1.
This  part of the motion was not opposed.  Dashs theory at  trial
was  that  the L5-S1 injury caused all of the loss for which  she
sought compensation.

     5     Dashs  attorney  calculated that the  jurys  award  of
damages plus interest totalled $1,598,274.35.  40% of this  total
is $639,309.72.

     6     Rule  68 only authorizes enhanced attorneys fee awards
for fees incurred after an offer of judgment is made.  Alaska  R.
Civ. P. 68(b).

     7    Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989).

     8     Poulin  v.  Zartman, 542 P.2d 251, 273  (Alaska  1975)
(citing  City  of  Fairbanks v. Nesbett,  432  P.2d  607,  609-10
(Alaska 1967)), overruled on other grounds by State v. Alex,  646
P.2d 203, 208 n.4 (Alaska 1982).

     9     Hogg  v.  Raven Contractors, Inc., 134 P.3d  349,  352
(Alaska  2006) (quoting Glamann v. Kirk, 29 P.3d 255, 259 (Alaska
2001)) (internal quotation marks omitted).

     10    Id.

     11     Rhodes  v.  Erion, 189 P.3d 1051, 1053 (Alaska  2008)
(quoting  Kellis  v.  Crites, 20 P.3d 1112, 1113  (Alaska  2001))
(internal quotation marks omitted).

     12     Marron v. Stromstad, 123 P.3d 992, 998 (Alaska  2005)
(citing Glamann, 29 P.3d at 259).

     13    Roughly one month after Dr. Roderers motion to dismiss
was  converted into a motion for summary judgment and denied, Dr.
Roderer  filed  a  Notice  of Withdrawal  of  Defendants  Summary
Judgment Without Prejudice.  Dash argues that Dr. Roderer  waived
his  argument  regarding  the expert witness  report  because  he
withdrew his motion for summary judgment and failed to renew  it.
But  the court denied the summary judgment motion on February  7,
2007;  the  notice  of withdrawal was therefore  without  effect.
Further,  Dr.  Roderer  renewed the underlying  argument  in  his
motion  for  judgment notwithstanding the verdict.  The  superior
court  addressed  the claim on the merits, holding  that  it  was
appropriate  both  then and now to have denied dismissal  of  the
case.  Dr. Roderer did not waive this issue.

     14     Lee v. State, 141 P.3d 342, 347 (Alaska 2006) (citing
DeNardo  v.  ABC  Inc. RVs Motorhomes, 51 P.3d 919,  922  (Alaska

     15     Shea  v.  State, Dept of Admin.,  Div.  of  Ret.  and
Benefits,  204 P.3d 1023, 1026 (Alaska 2009) (quoting Dobrova  v.
State, Dept of Revenue, Child Support Servs. Div., 171 P.3d  152,
156 (Alaska 2007)).

     16    DeNardo, 51 P.3d at 922 (quoting Hughes v. Bobich, 875
P.2d 749, 752 (Alaska 1994)) (internal quotation marks omitted).

     17    See, e.g., id. at 922-27.

     18     Id.  at  922-23 (citing Alaska R. Civ.  P.  37(b)(3);
Hughes, 875 P.2d at 753).

     19    Lee, 141 P.3d at 349 (explaining that Alaska Civil Rule
37(b)  gives judges broad discretion to enforce discovery  orders
through sanctions. (citing DeNardo, 51 P.3d at 922).

     20    DeNardo, 51 P.3d at 923.

     21     In his deposition, Dr. Boyd confirmed that he had not
been  aware  of  the need for an expert report at  the  time  the
working  draft was filed with the court, and that he first  began
work  on  his  report shortly before its submission in  March  of

     22    See supra note 4.

     23     Richey  v.  Oen,  824 P.2d 1371, 1374  (Alaska  1992)
(citing  Metcalf  v.  Wilbur, Inc., 645  P.2d  163,  170  (Alaska

     24    Dash had two independent theories of liability: lack of
informed  consent  and  negligent performance  of  the  procedure
itself.  She argues that either theory is adequate to support the
jurys award.

     25    Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1223
(Alaska  1975) (quoted with approval in Van Huff v. Sohio  Alaska
Petroleum Co., 835 P.2d 1181, 1186 (Alaska 1992)).

     26    835 P.2d at 1186-87.

     27    Id. at 1187.

     28    Id.

     29    638 P.2d 186, 189 (Alaska 1981).

     30    Id.

     31    See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793-
807 (1973).

     32    Hout, 638 P.2d at 189.

     33     Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153
(Alaska 1992) (internal citations and footnote omitted).

     34      Dr.  Roderer  claims  that  Dashs  closing  argument
contained  such  an implication, but we do not find  the  closing
argument  troubling.   Dashs counsel  pointed  out  that  certain
records of the drugs Dash was taking after the IDET were missing,
and  then stated that the judge will instruct you that the doctor
has  an absolute duty to make accurate records and to keep  them.
Dashs  counsel went on to argue that this failing was part  of  a
broader pattern of inconsistencies or lapses of memory that  cast
serious  doubt on the credibility and reliability of Dr. Roderers
testimony.   We do not believe this argument suggested  that  the
missing record, alone, established liability or negligence.

     35    Alaska R. Civ. P. 11.

     36    46 P.3d 1024 (Alaska 2002).

     37    Id. at 1042 & n.85 (quoting Taylor Constr. Servs., Inc.
v.  URS  Co., 758 P.2d 99, 102 (Alaska 1988)) (internal quotation
marks omitted).

     38     See Sayer v. Bashaw, 214 P.3d 363, 364 (Alaska  2009)
(citing Mackie v. Chizmar, 965 P.2d 1202, 1204 (Alaska 1998)).

     39     Johns  Heating Serv., 46 P.3d at 1042  n.85  (quoting
Taylor, 758 P.2d at 102) (internal quotation marks omitted).

     40    Both the jury instructions and the special verdict form
in  this  case explicitly directed that Dr. Roderer and  APCA  be
treated  as a single entity.  Cf. Pagenkopf v. Chatham  Electric,
Inc., 165 P.3d 634, 641 n.28 (Alaska 2007) (employee and employer
treated  as individual Rule 68 offeror where employers  liability
premised entirely upon respondeat superior).

     41     For  example, in Pagenkopf, 165 P.3d at  640-44,  the
settlement offer might have precluded any recovery from a  third-
party defendant, who otherwise stood to be held liable separately
and apportioned a distinct percentage of the fault.

     42    Alaska R. Civ. P. 68(b).

     43     The agreement defines total gross recovery as the sum
of damages, interest on the damages, and any court-ordered awards
of attorneys fees.  Awards of costs are excluded from total gross

     44    123 P.3d 992, 1014 (Alaska 2005).

     45    Id. at 1013.

     46     Cf. Froines v. Valdez Fisheries Dev. Assn, Inc.,  175
P.3d  1234 (Alaska 2008) (affirming award of attorneys  fees  for
plaintiff represented under a contingent fee agreement  could  be
based on attorneys hourly rate and hours worked).

     47     Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska App.

     48     Parson  v. State, Dept of Revenue, Alaska Hous.  Fin.
Corp., 189 P.3d 1032, 1038 (Alaska 2008).

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights