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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barton v. North Slope Borough School District (1/20/2012) sp-6644

Barton v. North Slope Borough School District (1/20/2012) sp-6644

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

HELEN BARTON,                                   ) 
                                                )       Supreme Court No. S-14086 
                        Appellant,              ) 
                                                )       Superior Court No. 2BA-09-00030 CI 
        v.                                      ) 
                                                )       O P I N I O N 
NORTH SLOPE BOROUGH                             ) 
SCHOOL DISTRICT,                                )      No. 6644 - January 20, 2012 
                                                ) 
                        Appellee.               ) 
                                                ) 

                Appeal   from     the  Superior    Court   of   the  State  of   Alaska, 
                Second Judicial District, Barrow, Daniel Schally, Judge pro 
                tem. 

                Appearances:       Jeffrey   J.  Barber,   Barber    &   Sims,    LLC, 
                Anchorage, for Appellant. Laura L. Farley, Farley & Graves, 
                P.C., Anchorage, for Appellee. 

                Before:   Carpeneti,   Chief   Justice,   Fabe,   Winfree,   Christen, 
                and Stowers, Justices. 

                FABE, Justice. 

I.      INTRODUCTION 

                On August 17, 2007, Helen Barton was injured while   watching a high 

school football game in Barrow when at least one player ran out of bounds during a play 

and   collided   with   Barton,   breaking   her   leg. Barton   sued   the   North   Slope   Borough 

----------------------- Page 2-----------------------

School District, alleging in part that the football field had not been designed or built with 

a   proper   "run-off"   area   along   the   sidelines   and   that   spectators   had   improperly   been 

allowed to stand in the run-off area during the August 17 game.  Barton retained expert 

Juliet Vong, a landscape architect, who proposed to testify that she used a particular 

manual in designing sports fields "to help ensure the appropriate dimensions and design 

criteria are met for a given sport and level of play."  The District filed a motion in limine 

to exclude Vong's testimony because it did not provide an admissible expert opinion. 

The superior court agreed with the District and excluded Vong's report and testimony. 

At a jury trial in August 2010, the District was found not negligent.               Barton appeals, 

arguing that the superior court should not have excluded Vong's testimony and that 

doing so was prejudicial to Barton's case.           We conclude that although it was error to 

exclude Vong's testimony, the error was harmless. 

II.     FACTS AND PROCEEDINGS 

                In the summer of 2007, an Astroturf field was constructed for the Barrow 

High   School   football   team.    The   field   was   a   regulation   high   school   football   field, 

measuring 120 yards long (including end zones) by about 160 feet wide.                   A "skirt" of 

Astroturf approximately 10-12 feet wide bordered the field along all of the sidelines, and 

the field was surrounded by orange plastic construction fencing in August 2007. 

                On August 17, 2007, the Barrow football team played its first game on the 

new field, and over 3,000 people attended.           According to the District, spectators were 

seated in bleachers, standing near and away from the sidelines, and in nearby buses. 

Helen Barton, an elderly spectator, alleged that she had to watch the football game from 

the sidelines of the field because there was inadequate seating elsewhere.  At one point 

during the game, several football players went out-of-bounds near the 15- or 20-yard line 

and at least one of them   collided   with Barton, knocking her to the ground.                 Barton 

suffered a broken left leg and also claimed injuries to her left knee, back, and hip. 

                                                  -2-                                            6644
 

----------------------- Page 3-----------------------

                 Barton sued the North Slope Borough School District on March 30, 2009, 

alleging that the District had negligently designed, "set up," operated, and supervised the 

Barrow High School football field, and that the District had failed to provide adequate 

barriers   or   adequate   warnings   during   the   August   17   football   game.       Barton   sought 

damages for the injuries she suffered as a result of the collision.  The District answered 

on June 8 and filed a motion for summary judgment on December 31, 2009, arguing that 

it "owed no duty to protect Barton, a spectator, from the open and obvious risk of being 

struck by players while standing near the sidelines during a football game."                       Barton 

responded on January 21, 2010.             Summary judgment was denied on April 5, with the 

superior court noting that "Alaska case law does not specifically address the liability of 

landowners to spectators of sporting events." 

                 In advance of trial, Barton disclosed two retained experts: Michael Russell, 

a "safety expert," and Juliet Vong, a "landscape architect expected to testify about design 

of the high[]school football field."  Barton also disclosed an "expert report" from Vong, 

in the form of a letter from Vong to Barton's counsel, on June 2, 2010.                      Attached to 

Vong's letter was an excerpt from a publication entitled Sports Fields: A Manual for 

Design, Construction and Maintenance (Sports Fields or the manual).   The letter stated: 

                 This letter is in response to your request for information on 
                 the   design    of  football   fields.   As     a  licensed   landscape 
                 architect   in   the   states   of   Washington,   Oregon,   Idaho   and 
                 Montana, I have participated in the design of a wide variety 
                 of   outdoor   spaces,   including   athletic   fields,   over   the   last 
                 thirteen years.   A copy of my resume is attached to this letter. 
                 I use [Sports Fields] as a reference when designing athletic 
                 fields to help ensure the appropriate dimensions and design 
                 criteria are met for a given sport and level of play.             In this 
                 manual, the section titled "Football and Rugby Fields" states 
                 specific Design Criteria for new constructions such as slope, 
                 irrigation and drainage, turfgrass selection, maintenance[,] 

                                                    -3-                                              6644
 

----------------------- Page 4-----------------------

                 and field dimensions, including for High School play.  The 
                 relevant chapter from the manual is attached to this letter. 

The Sports Fields excerpt included the following language: 

                 The    violent,   high-speed     collisions   characteristic    of   adult 
                 football raise several important safety concerns.  First of all, 
                because of the popularity of the sport with spectators, many 
                 fields have traditionally been built with some form of barrier 
                between       the  playing    area  and   the   grandstands.     If   such 
                barriers are necessary, they should be placed well back from 
                 the   sidelines,   at   least   20  to   25   feet   away.  Even  at   that 
                 distance, athletes running across the sidelines at top speed on 
                 wet turf may be unable to stop before reaching the barrier, so 
                player safety should be a major concern in barrier design. 

Barton filed a final witness list over a month after disclosing Vong's expert report, and 

it included two relevant experts:         Russell and Vong. 

                 The    District   filed  a  motion    in  limine    to  exclude    Vong's     report   and 

testimony, contending that Vong offered no expert opinion that would assist the jury and 

that   her   expert    report   failed   to  comply     with    the  requirements      of   Alaska    Civil 

Rule 26(a)(2)(B).      The District argued that Vong "simply states that when she designs 

a football field she uses a particular book which has some design criteria," contending 

that   this   was   not   an   admissible   expert opinion.     In   addition,   the   District   stated   that 

Vong's letter did not meet the criteria for an expert report under Civil Rule 26(a)(2)(B) 

because it did not contain an expert opinion nor the "data or other information" used to 

form that opinion.  The District contended that "[b]ecause no opinions are expressed by 

[Vong], her testimony is irrelevant." 

                 Barton responded, maintaining that Vong had offered an opinion - that 

Sports Fields "is a reasonably relied upon authority" - and would testify "about the 

standard for design and the reasons for those standards as described . . . [in] the manual." 

In this way, Barton explained, "Vong's expert testimony would be very similar to the 

                                                    -4-                                              6644
 

----------------------- Page 5-----------------------

court taking judicial notice of the manual." Barton also contended that Vong's letter was 

a sufficient expert report, explaining that "because [Vong] will be used for the limited 

purpose of identifying the manual . . . an in-depth report would have been wasteful and 

unnecessary." 

                The District replied, responding that if Vong intended to testify that Sports 

Fields was a learned treatise or an industry standard, Vong's letter had not expressed 

those opinions and that Vong could not add those opinions after the deadline for filing 

expert reports had passed. 

                The superior court granted the District's motion to exclude Vong's report 

and testimony, concluding that it was not admissible expert testimony under Alaska 

Evidence Rule 702.  The superior court noted that Vong "does not articulate that [Sports 

Fields] is the industry standard for construction of athletic fields, nor does her report give 

any guidance on how she would apply the manual to the facts of this case in order to 

assist the jury."    Therefore, the superior court determined, "the relevance of [Vong's] 

testimony is low."  The superior court also explained that while statements from learned 

treatises may sometimes be read by experts into the record as a hearsay exception under 

Evidence   Rule   803(18),   generally   "learned   treatises   are   not   admissible   substantive 

evidence" because "there is a need for the expert to guide the jury on the use of the 

treatise."  The superior court found that neither Vong's report nor Barton's intended use 

of Sports Fields provided such guidance. 

                Barton filed a motion for reconsideration.  Barton argued that "[a] central 

issue for the jury to consider will be the appropriateness of the dimensions of the area 

between the sidelines and the barrier as well as the exclusion of spectators . . . from the 

area."    Because of this, Barton reasoned, Vong's expert report - which attached the 

"football    field  chapter"   of Sports    Fields  and   "indicated    [Vong's]    belief  that  the 

dimensions and reasons for those dimensions identified in the chapter were appropriate 

                                                 -5-                                          6644
 

----------------------- Page 6-----------------------

dimensions for designing a high school football field" - contained an opinion that was 

"directly relevant and helpful for the jury in understanding the safety of the . . . District's 

design and dimensions for the barrier at issue and the adequacy or inadequacy of the . . . 

District's policy regarding spectators in the area between the sidelines and the barrier." 

Barton argued that "[a]pplying the [m]anual's dimensions to a high school field is an 

important, relevant opinion" and that Vong should be permitted to provide that opinion. 

               The superior court held a pre-trial conference.        During the conference, 

Barton's counsel asked the court to take judicial notice of the subsection of Sports Fields 

attached to Vong's letter.     The superior court declined to do so, and it denied Barton's 

motion for reconsideration without comment that same day.            The case proceeded to a 

jury trial.  The jury found that the District was not liable.   Barton appeals from the final 

judgment in favor of the District. 

III.    STANDARD OF REVIEW 

               We    review the superior court's decision to admit or exclude evidence, 
including expert witness testimony, for an abuse of discretion.1      "An abuse of discretion 

exists when we are left with a definite and firm conviction that an error has been made."2 

An erroneous decision regarding admissibility will only be reversed "if it affected the 
substantial rights of a party."3   Where the admissibility of expert testimony turns on a 

question of law, such as the "correct scope or interpretation of a rule of evidence," we 

apply our "independent judgment, adopting the rule most persuasive in light of reason, 

        1      Cartee v. Cartee, 239 P.3d 707, 721 (Alaska 2010). 

        2      Marsingill v. O'Malley, 128 P.3d 151, 155 (Alaska 2006). 

        3      Cartee, 239 P.3d at 721. 

                                               -6-                                          6644 

----------------------- Page 7-----------------------

precedent and policy."4 

IV.	    DISCUSSION 

                Barton makes a single argument on appeal - that the superior court's 
exclusion of Vong's testimony was an abuse of discretion.5 

        A.	     Vong's Testimony Could Have Assisted The Jury Under Alaska Rule 
                Of Evidence 702. 

                Alaska     Rule   of  Evidence    702(a)    controls   the  admissibility    of  expert 
testimony.6     Rule     702(a)   provides:    "If   scientific,  technical,   or  other   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 by knowledge, skill, experience, training, or 

        4       City of Bethel v. Peters, 97 P.3d 822, 825 (Alaska 2004) (quoting State v. 

Coon, 974 P.2d 386, 389 (Alaska 1999)). 

        5       The District also alleged in the superior court, and repeats on appeal, that 

Vong's letter failed to meet the Civil Rule 26(a)(2)(B) criteria because it did not contain 
a statement of opinions to be expressed.   Civil Rule 26(a)(2)(B) directs that the pre-trial 
disclosure   of   expert   witnesses   be   accompanied   by   an   expert   report   prepared   by   the 
witness.    The report must contain, among other things, "a complete statement of all 
opinions   to   be   expressed   and   the   basis   and   reasons   therefor   [and]   the   data   or   other 
information considered by the witness in forming the opinions."  The District urges that 
the superior court "properly excluded [Vong's] testimony from trial for non-compliance 
with the discovery rules and the pre-trial order." 

                While the District is correct that a trial court has discretion to exclude 
evidence "where there has been non-compliance with discovery or the pre-trial order," 
there is no indication in the superior court's order that its decision to exclude Vong's 
testimony was in response to any non-compliance with discovery procedures.                    Rather, 
the superior court based its ruling on its interpretation of Evidence Rules 702(a) and 
803(18) and on relevance grounds.   Because the record shows that the superior court did 
not exclude Vong's testimony due to non-compliance with discovery requirements, there 
is no basis for us to review the superior court's order for abuse of discretion on this 
ground. 

        6       John's Heating Serv. v. Lamb, 46 P.3d 1024, 1039 (Alaska 2002). 

                                                  -7-	                                           6644
 

----------------------- Page 8-----------------------

education, may testify thereto in the form of an opinion or otherwise."7               We confirmed 

long ago that "the standard for admission of expert testimony in Alaska is whether the 
testimony would appreciably assist the trier of fact."8          "As a general rule, the trial judge 

retains 'wide latitude' in deciding whether to admit the testimony of an expert witness."9 

                Expert   testimony   may   be   based   on   either:    (1)   technical   or   scientific 
research   and   testing;   or   (2)   practical   experience   in   the   relevant   field.10 We   held   in 

Marron v. Stromstad that the second category of expert testimony does not have to meet 

the heightened requirements outlined by the United States Supreme Court in Kumho Tire 
v. Carmichael,11 noting Alaska's "liberal standard favoring the admissibility of expert 

        7       Alaska R. Evid. 702(a). 

        8       INA Life Ins. Co. v. Brundin, 533 P.2d 236, 243 (Alaska 1975); see also 

Getchell v. Lodge, 65 P.3d 50, 56 (Alaska 2003) ("To be admissible[,] expert opinion 
testimony must be helpful to the jury."); Osborne v. Hurst, 947 P.2d 1356, 1362 (Alaska 
1997) ("[t]he true criterion [for determining whether a person qualifies as an expert 
witness] is whether the jury can receive appreciable help from this particular person on 
this particular subject") (quoting Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965); 
cf. DAVID H. KAYE,DAVID E.BERNSTEIN & JENNIFER L. MNOOKIN , THE NEW WIGMORE : 
A TREATISE   ON  EVIDENCE : EXPERT  EVIDENCE               2.1.2 (2d ed. 2010) (explaining that 
Federal Rule of Evidence 702, which parallels Alaska Evidence Rule 702, "requires only 
that expert testimony be helpful to the jury.  Expert testimony can be helpful to the jury 
even if the jury is capable of resolving the relevant issue on its own, so long as the 
testimony may advance the jury's understanding to any degree.") (citation omitted). 

        9       Barrett v. Era Aviation, Inc., 996 P.2d 101, 103 (Alaska 2000) (quoting 

Ferrell v. Baxter, 484 P.2d 250, 267 (Alaska 1971)). 

        10      Marsingill v. O'Malley, 128 P.3d 151, 159 (Alaska 2006). 

        11      Marron v. Stromstad, 123 P.3d 992, 1007 (Alaska 2005) (citing Kumho 

Tire Co. v. Carmichael, 526 U.S. 137 (1999)). 

                                                  -8-                                             6644
 

----------------------- Page 9-----------------------

testimony . . . to increase the information available to the fact-finder."12          In that case we 

nevertheless emphasized the importance of ensuring the reliability of non-technical, 

experience-based expert testimony by requiring such testimony to meet the standards 
outlined in other evidentiary rules.13       For example, this type of expert evidence must be 

presented   by   an   expert   who   is   properly   qualified   "by   knowledge,   skill,   experience, 
training, or education,"14 and the "facts or data in the particular case upon which an 

expert bases an opinion or inference . . . must be of a type reasonably relied upon by 
experts in the particular field."15      And in all instances, evidence in the form of expert 

testimony must be relevant16 or it is inadmissible,17  and it may be excluded even if it is 

relevant "if its probative value is outweighed by the danger of unfair prejudice, confusion 
of the issues, or misleading the jury."18 

                We have previously determined that expert witness testimony is admissible 
in the context of determining negligence or other breaches of a particular duty of care.19 

        12      Id. at 1005.
 

        13      Id. at 1007.
 

        14      Alaska R. Evid. 702(a).
 

        15      Alaska R. Evid. 703.
 

        16      Alaska   R.   Evid.   401:   "Relevant   evidence   means   evidence   having   any
 

tendency to make the existence of any fact that is of consequence to the determination 
of the action more probable or less probable than it would be without the evidence." 

        17      Alaska R. Evid. 402 (providing that "[e]vidence which is not relevant is not 

admissible"). 

        18      Alaska R. Evid. 403. 

        19      See, e.g.,Ayuluk v. Red Oaks Assisted Living, Inc., 201 P.3d 1183, 1192-94 

(Alaska 2009) (holding that a trial court abused its discretion by excluding the testimony 
                                                                                        (continued...) 

                                                  -9-                                             6644
 

----------------------- Page 10-----------------------

And other courts have allowed experts to testify, and have relied on expert opinions, in 
a variety of negligence cases brought by spectators injured during athletic events.20                For 

example,      an  Illinois  appellate   court   upheld    a  trial   court's  admission    of  a  "safety 

consultant's" expert testimony in a negligence suit brought by a spectator hit in the face 

        19(...continued) 

of an expert witness where the testimony would have been relevant to show that the 
defendant breached a duty of care); Getchell v. Lodge, 65 P.3d 50, 56 (Alaska 2003) 
(upholding the admissibility of a police officer's testimony implying that a driver had not 
been negligent in a motor vehicle accident where she skidded to avoid a moose); John's 
Heating Serv. v. Lamb, 46 P.3d 1024, 1039 (Alaska 2002) (determining that the trial 
court erroneously excluded expert witness testimony regarding the "appropriate standard 
of care for a heating service professional");  Wilson v. State, 669 P.2d 1292, 1296-97 
(Alaska 1983) (concluding that it was not error to allow an expert to state an opinion that 
an OSHA inspector was negligent in conducting an inspection of a drilling platform). 

        20      See, e.g., Thurman v. Clune, 125 P.2d 59, 60 (Cal. App. 1942) ("[T]he 

opinion of experts relative to the proper safeguards to be taken in the construction of ice 
hockey rinks is evidence which is admissible . . . on the query of whether defendant in 
a   particular   instance   has   properly   safeguarded   the   ice   hockey   rink    in   question."); 
Remley v. Newton, 364 P.2d 581, 583 (Colo. 1961) (holding that the trial court erred by 
excluding expert testimony regarding the "safe and proper way to install tether ball 
equipment" in a negligence action); Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 
224 (Mich. App. 2001) (noting that "[p]laintiff's expert testified that, on the basis of his 
review of accidents occurring over time in the spectator stands between first base and 
third base, reasonable safety precautions would include screening in that entire area"); 
Perry   v.   Seattle   Sch.   Dist.   No.   1,   405   P.2d   589,   592   (Wash.   1965)   (citing   expert 
testimony from a football coach that "five yards back from the line marking the playing 
field would have been a safer place for spectators to stand"); Taylor v. Baseball Club of 
Seattle, L.P., 130 P.3d 835, 839-40 (Wash. App. 2006) (affirming the admission of a 
professional pitching coach's testimony in a negligence action brought by a spectator 
injured by an errant warm-up pitch because the coach was "highly qualified to address 
why and how the athletes prepare for games"). 

                                                  -10-                                             6644
 

----------------------- Page 11-----------------------

with a foul ball at a baseball game.21    Among other things, the expert gave the opinion 

that seats in the "area behind home plate" should be protected because they were in "the 

most dangerous area of the ballpark" and that spectators in those seats could feasibly be 

protected by a screen of particular dimensions; the expert testified that his opinion was 

based on "various publications" along with "years of reading documentation on safety, 
design and operation of baseball stadiums and fields."22  The defendant moved to exclude 

the expert's testimony because the spectator "never established that the documents and 
data upon which [the expert] relied were of a type reasonably relied upon by experts."23 

The appellate court disagreed, explaining that a trial court "should liberally allow the 

expert to determine the materials upon which experts in his or her field may rely in 

rendering an opinion" and that it "is then the opposing party's responsibility to challenge 

the basis of the expert's opinion, with the weight of the opinion ultimately left to the trier 
of fact."24  In some instances, however, courts in other jurisdictions have disallowed 

       21      Yates v. Chicago Nat'l League Ball Club, Inc., 595 N.E.2d 570, 580 (Ill. 

App. 1992), superseded by statute on other grounds by  745 ILL. COMP. STAT. ANN . 
38/10 (West 1996). 

       22      Id. at 575. 

       23      Id. at 579. 

       24      Id. at 580. 

                                             -11-                                         6644
 

----------------------- Page 12-----------------------

expert testimony in factually similar cases where the testimony was deemed not helpful 
to the jury25 or conclusory.26 

                Barton   argues   that   the   "primary   issue   for   the   jury   in   determining   [the 

District's] negligence" was "[w]hether the [] District should have kept a run-off area 

clear of spectators."     Barton maintains that Vong would have testified: (1) that Sports 

Fields was a reliable authority; (2) that Sports Fields's prescribed dimensions for a run- 

off area were applicable to high school football fields; and (3) that subsection 12.2b of 

Sports Fields, entitled Safety Issues, identified the appropriate dimensions and explained 

the purposes of a run-off area.       Barton emphasizes the importance of "[t]he opinion of 

a landscape architect with experience designing sports fields that the Manual dimensions 

were applicable for a high school field" and adds that Vong's testimony "would have 

educated the jurors about the known risk of football players running out of bounds and 

colliding with objects, including spectators, allowed too close to the side lines."  Barton 

maintains that "[d]eficiencies in the basis of [Vong's] opinion should have [gone] to 

weight and not admissibility." 

                The superior court determined that Vong's proposed testimony was of low 

relevance because Vong did not state in her report that "the manual was the industry 

        25      See Vega v. City of Pompano Beach, 551 So. 2d 594, 596-97 (Fla. App. 

1989) (affirming the trial court's exclusion of a civil engineer's expert testimony as to 
the existence of a hazardous condition because it would have been within the common 
knowledge of the jury). 

        26      See    Honohan      v.  Turrone,    297   A.D.2d    705,   706   (N.Y.    App.   2002) 

(upholding summary judgment when presented with an expert's "conclusory affidavit" 
stating that it was not within the "custom and practice to be followed regarding youth 
soccer leagues" to allow players to warm up on the sidelines near spectators because the 
expert "did not cite any recognized standard adopted by any specific organization or 
governmental entity nor specify where the purported 'custom and practice' was in fact 
observed"). 

                                                 -12-                                            6644
 

----------------------- Page 13-----------------------

standard for construction of athletic fields" and did not explain how she would have used 

Sports Fields in this case.  The District urges us to uphold the superior court's decision, 

arguing that Vong did not state "that the Manual represents the applicable standard of 

care in the industry," and that Vong would not have "offered any opinions regarding the 

District's   conduct   [or]   whether   or   not   the   Barrow   football   field   complied   with   the 

Manual's   design   standards."       The   District   asserts   that   "the   problem   with   [Vong's] 

proposed testimony was that she failed to offer any opinions whatsoever, deficient or 

otherwise." 

                We disagree.       Rule 702 reflects Alaska's liberal standards for allowing 

evidence that might appreciably help the jury make a decision.  The rule allows experts 
to testify "in the form of an opinion or otherwise."27             The commentary on Rule 702 

explains that "[b]y allowing testimony 'in the form of an opinion or otherwise,' the rule 

allows an expert to give testimony in the form of a dissertation on a given topic thereby 

allowing . . . trier[s] of fact to draw [their] own inferences by applying the specialized 
knowledge to the facts of the case at hand."28 

                In Barton's opposition to the District's motion in limine to exclude Vong's 

testimony,   Barton      stated  that   Vong's    "role  is  to  relate  the  contents   of  page    252, 

subchapter 12.2b of the manual identified in the expert disclosure."               Barton added that 

Vong was "not expected to provide any opinions regarding the conduct in this case or 

whether she believes the conduct complied with the standard."                   But even this limited 

testimony falls squarely within the commentary's description of "a dissertation on a 

given topic . . .    allowing the trier of fact to draw his own inferences."          By acquainting 

the jury with the standards set out in Sports Fields, Vong could have appreciably assisted 

        27      Alaska R. Evid. 702(a). 

        28      Commentary Alaska E. R. 702. 

                                                  -13-                                               6644 

----------------------- Page 14-----------------------

the trier of fact by presenting the jury with information from which it could have drawn 

its own inferences. We therefore conclude that it was error to exclude Vong's testimony. 

We next address whether that error was harmless. 

        B.       Excluding Vong's Testimony Was Harmless Error. 

                When the trial court has erroneously excluded evidence, a party must show 
that the error was harmful or prejudicial before we will reverse the trial court.29               "The 

test for determining whether an error was harmless is 'whether on the whole record the 

error   would   have   had   a   substantial   influence   on   the   verdict   of   a   jury   of   reasonable 
lay[people].' "30    Put another way, the erroneous exclusion of evidence is prejudicial if 

we "cannot 'say with fair assurance, after stripping the erroneous action from the entire 
evidence, that the jury was not substantially swayed or affected by the error.' "31              Some 

factors relevant to this inquiry are "the relative amount of time at trial devoted to the 

evidence and whether the . . . evidence was cumulative and largely replicated other . . . 
evidence."32     Error   in   excluding   evidence   is   also   harmless   where   it   would   be   more 

damaging than helpful to the party that wanted to introduce it.33                In this case, it was 

harmless error to exclude Vong's testimony. 

        29      Noffke v. Perez, 178 P.3d 1141, 1147 (Alaska 2008). 

        30      Id.  at 1147-48 (quoting Dalkovski v. Glad, 774 P.2d 202, 207 (Alaska 

1989)). 

        31      Liimatta v. Vest, 45 P.3d 310, 317 (Alaska 2002) (quotingAdkins v. Lester, 

530 P.2d 11, 18 (Alaska 1974)). 

        32      Municipality of Anchorage v. Devon, 124 P.3d 424, 432 (Alaska 2005) 

(citation omitted). 

        33      John's Heating Serv. v. Lamb, 46 P.3d 1024, 1039-40 (Alaska 2002). 

                                                  -14-                                            6644
 

----------------------- Page 15-----------------------

                Barton     argues    that  her   case  "suffered    immeasurably       because    of  the 
preclusion of her landscape architect."34         Barton notes that the District was permitted to 

call witnesses who "g[a]ve opinions about the placement of [the] barrier around the 

football field and . . . explain[ed] why it was okay for spectators to stand next to the 

sidelines."  Barton asserts that Vong would have countered this testimony by identifying 

the Sports Fields manual, by applying the manual's prescribed dimensions as appropriate 

for   a   high   school   football   field,   and   by   "present[ing]   the   material   with   persuasive 

authority to the jury." Barton also maintains that "[t]he trial court's exclusion of [Vong's 

testimony] detrimentally affected [Barton's] ability to convince the jury that the . . . 

District was careless to allow spectators in the run-off area."   The District counters that 

Vong's testimony would have been cumulative of the testimony offered by Barton's 

other expert witness, Michael Russell.          It also argues that Vong's testimony would not 

have helped Barton, and may even have hurt her, because Russell "conceded . . . that the 

distance between the sidelines and the orange construction fencing barrier was 30 feet 

and thus, the Barrow football field actually complied with the Manual's proposed run-off 

area dimensions for professional football fields." 

                The exclusion of Vong left Russell as Barton's only expert. At trial, Barton 

tried, with limited success, to elicit from Russell an explanation of the importance of run- 

off areas and to establish Sports Fields as a reliable authority on the subject.  In response 

        34      Barton originally made this argument in the context of a slightly different 

contention - that "[p]recluding evidence on a central issue is like imposing a liability 
or litigation ending sanction."  But the legal authority Barton cites discusses a trial court 
imposing sanctions for discovery violations and is not applicable here.                   See Sykes v. 
Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998) ("However, we have 
repeatedly held that the trial court's discretion [to choose a particular sanction for a 
discovery violation] is limited when the effect of the sanction it selects is to . . . preclude 
evidence on a central issue . . . .").  Vong's testimony was not excluded by the superior 
court as a discovery sanction. 

                                                  -15-                                             6644
 

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to questioning by Barton's counsel, Russell stated that football fields included run-off 

areas   to   prevent   spectators   from   getting   injured.     He   said   that   the   run-off   areas   in 

professional football fields, "I guess, are about 30 feet wide."                Barton's counsel then 

asked Russell what material he had reviewed in forming his opinion, and Russell replied 

that   he   had   done   extensive   internet   research.     Counsel   asked   whether   Russell   had 

reviewed any manuals, to which Russell replied that he had reviewed "a couple of pages 

from an architectural manual."  When Russell was unable to remember the name of that 

manual, the District's counsel intervened, saying, "We'll allow counsel to read the name 

to him."      Russell listed  Sports Fields as among the sources he consulted.                   Barton's 

counsel   then   asked   no   questions   about  Sports   Fields,   such   as   what   dimensions   the 

manual suggested, whether Russell agreed with those dimensions, whether Sports Fields 

was a reliable authority, or whether the dimensions prescribed by Sports Fields were 

applicable   to   high   school   football   fields.   Although   he   did   not   attribute   his   30-foot 

estimate to Sports Fields, on cross-examination the District's counsel asked, "[Y]ou 

testified under oath to this jury that professional field runoff distance is 25 to 30 feet, did 

you not?"     Russell replied, "That's what the manual said, yes." 

                 To    the  extent    that  Russell's    testimony     did  not   overlap    with   Vong's 

proposed testimony, Barton's counsel had an opportunity to ask more tailored questions 

to elicit the desired testimony about the required dimensions of the run-off area.  Barton 

argues that Vong would have testified (1) that Sports Fields was a reliable authority; (2) 

that Sports Fields's proscribed dimensions for a run-off area were applicable to high 

school football fields; and (3) that subsection 12.2b of Sports Fields, entitled Safety 

Issues, identified the appropriate dimensions and explained the purposes of a run-off 

area.  Russell did say that he used Sports Fields, although he may not have featured it as 

prominently in his testimony as Vong would have.  Barton's counsel also failed to use 

Sports   Fields   while   cross-examining   the   District's   expert   witness.        While   Barton's 

                                                    -16-                                              6644
 

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counsel never asked Russell whether these dimensions were appropriate for high school 

football, Russell did say "if you put people on the sidelines and you've got a team of 12 

people at 180 . . . pounds apiece, it's - it's like a moving wall." 

                 More importantly, the District's attorney acknowledged that professional 
fields   use   a   25-   to   30-foot   run-off   area,   both   in   cross-examination   and   in   closing.35 

Although      Vong's     proposed     testimony     may    have   overlapped      to  some    extent   with 

Russell's testimony, we have noted that "the mere fact that another witness has  already 

testified    as  to  a  certain    issue   does   not   foreclose    a  litigant's   right  to  introduce 

substantiating testimony.  Juries may find one witness more compelling than another, or 

they may attribute greater weight to a finding if more than one expert reaches the same 
conclusion."36     But the burden is on the party challenging exclusion to show prejudice.37 

And   even   if   Vong's   testimony   would   have   been   more   credible   than   Russell's,   the 

exclusion of Vong's testimony was harmless because the District never challenged that 

a 25- to 30-foot run-off area was considered   the standard.                 Moreover, the District's 
counsel repeatedly mentioned the 25- to 30-foot figure, never challenging it,38 but instead 

        35       Sports Fields actually gave 20 to 25 feet as the appropriate dimensions. 

        36       Colt Indus. Operating Corp., Quincy Compressor Div. v. Frank W. Murphy 

Mfr., Inc., 822 P.2d 925, 932-33 (Alaska 1991), superseded by statute on other grounds, 
Tort Reform Act of 1986, Ch. 139,  1, SLA 1986, as recognized by Alaska Gen. Alarm, 
Inc. v. Grinnell, 1 P.3d 98, 105 (Alaska 2000). 

        37      Jones v. State, Dep't of Corr., 125 P.3d 343, 347 n.7 (Alaska 2005). 

        38       In its closing, the District, without challenging the 25 to 30 feet as a general 

matter, did   challenge the runoff as applied to Barrow, saying that while such safety 
measures were appropriate for Anchorage, they had no place in rural communities where 
"[w]e like to have a little freedom . . . and [if] you have to stand way back, you've kind 
of taken a little - the fun out of it."          But presumably nothing Vong would have said 
would have contradicted the District's argument on this point. 

                                                   -17-                                              6644
 

----------------------- Page 18-----------------------

arguing that the District's field met that standard.        What the two sides chiefly disputed 

was   not   whether   25   feet   was   distance   enough,   but   instead   whether   the   District   had 

invited people closer to the field than that.  Vong's testimony would not have helped the 

jury answer that question.       We therefore conclude that it was harmless error for the 
superior court to exclude Vong's testimony.39 

V.      CONCLUSION 

                For the reasons described above, we AFFIRM the superior court's entry of 

judgment for the District. 

        39      The District arguably made an issue of Vong's absence when its attorney 

pointed out in his closing argument that Russell "didn't even show you, tell you, or have 
read to you the section of the book that he referred to to find out that the distance from 
the sideline to the fence is supposed to be 20 to 25 feet."           Vong's proposed testimony 
would have put this directly before the jury.          But again, this recommended dimension 
was not disputed by the District. 

                                                 -18-                                             6644 
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