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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thompson v. Cooper (9/28/2012) sp-6713

Thompson v. Cooper (9/28/2012) sp-6713

This has been WITHDRAWN - see Opinion # 6728

        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 



SAMUEL L. THOMPSON,                              ) 

                                                 )   Supreme Court No. S-14142/14162 

                       Appellant and             ) 

                       Cross-Appellee,           ) 

                                                 )   Superior Court No. 3AN-09-06600 CI 

        v.                                       ) 

                                                 )   O P I N I O N 

MICHAEL J. COOPER and                             ) 

CENTRAL PLUMBING & HEATING,                      ) 

                                                 )   No. 6713 - September 28, 2012 

                       Appellees and             ) 

                       Cross-Appellants.         ) 

                                                 ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Anchorage, Sen K. Tan, Judge. 



               Appearances: Charles W. Ray, Jr., Law Offices of Charles W. 

               Ray, Jr., P.C., and Marc W. June, Law Office of Marc June, 

               Anchorage,      for  Appellant/Cross-Appellee.        Matthew      D. 

               Regan and Alex Vasauskas, Holmes Weddle & Barcott, P.C., 

               Anchorage, for Appellees/Cross-Appellants. 



               Before:     Carpeneti,     Chief   Justice,   Fabe,   Winfree,    and 

               Stowers,    Justices. 



               WINFREE, Justice. 



I.       INTRODUCTION 



               In   December  2008  Michael  Cooper  caused   a  car  accident  that   injured 



Samuel Thompson.  Thompson sued Cooper and Cooper's employer for compensatory 


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

and punitive damages.        The jury returned a verdict for Thompson for compensatory 



damages, but not for punitive damages. The parties appeal rulings on evidentiary issues, 



jury instructions, and denied motions.        We affirm most of the superior court's rulings, 



but we reverse its (1) exclusion of Thompson's treating physicians' opinion testimony 



on medical causation, and (2) denial of a jury instruction on additional harm. We remand 



for a new trial on compensatory damages. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                Michael Cooper co-owns Central Plumbing & Heating (Central).  Cooper 



was diagnosed with Parkinson's disease in 1994 and experiences symptoms including 



head and hand tremors.   Cooper sees Dr. Mary Downs, a neurologist, for treatment, and 



he takes several medications to control his symptoms. 



                Cooper   was   aware   that   two   of   his   medications   warn   users   to   exercise 



caution when operating a motor vehicle.            Cooper and Dr. Downs had discussed the 



impact of Parkinson's on Cooper's ability to drive, and Dr. Downs concluded she "didn't 



see any reason why shouldn't drive if felt comfortable doing it." Dr. Downs testified that 



at all times before and after the accident she had no concern about Cooper driving and 



never concluded that Cooper should not operate a motor vehicle.                 Until the incident 



underlying this appeal, Cooper had not been ticketed for any traffic violations or been 



in any major automobile accidents after being diagnosed with Parkinson's disease. 



                Just prior to the accident, Cooper left Central's downtown Anchorage shop 



in a company truck to get parts for an ongoing job.            Cooper was in the left lane of a 



three-lane street as he approached an intersection.  While changing lanes, Cooper failed 



to notice his traffic light turn red.     Meanwhile, Samuel Thompson had been stopped in 



his truck at the red light on the intersecting street.        When his light changed to green, 



                                                 -2-                                           6713
 


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

Thompson pulled out into the intersection.  Cooper looked up after his lane change, saw 



Thompson's truck crossing the intersection, and applied his brakes. 



               Cooper's truck struck Thompson's.   Cooper and Thompson pulled off the 



roadway, got out of their vehicles, had a 15-20 minute conversation, and exchanged 



names and telephone numbers.   Cooper admitted the accident was his fault.  Thompson 



did not notice anything during their conversation to indicate Cooper was impaired.  They 



called the police to report the accident.       Cooper waited in his truck for the police to 



arrive, while Thompson went inside a nearby building where he and his girlfriend, Amy 



Christiansen, were employed. 



               Christiansen testified that immediately following the accident, she observed 



Cooper looking "messed up" and "spacey."  She "wanted the cop to do a DUI test," and 



thought it was strange that Cooper waited in his truck, noting that most people would get 



out and check to make sure others are okay. Thompson testified that he observed Cooper 



appear to fall asleep while waiting for the investigating police officer to arrive at the 



accident scene. 



               Police Officer Joel Breiner arrived and conducted an investigation. Officer 



Breiner spoke to Cooper in close proximity, and he noted in his report that he found no 



evidence suggesting Cooper was intoxicated by drugs or alcohol. Cooper told the officer 



that the accident was his fault.    Neither driver reported an injury. 



               Thompson testified that he had never experienced significant back pain 



before the accident but began to do so shortly after the accident.  Thompson went to an 



emergency room the night of the accident and was examined for neck and back pain. 



Emergency care physicians gave him prescriptions and instructed him to follow up with 



a primary care doctor.     He began seeing Dr. James Lord about a week later. 



               Dr. Lord testified that on Thompson's first visit, Thompson complained of 



neck   and   lower   back   pain. Dr.   Lord   prescribed   Thompson   a   pain   medication   and 



                                                -3-                                           6713
 


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

referred him to physical therapy.       Thompson returned a few weeks later, claiming that 



his neck pain had subsided, but his back pain had not.          Dr. Lord again prescribed pain 



medication and referred Thompson to physical therapy, instructing Thompson to return 



if needed. 



               Thompson testified that he experienced increasing back pain over the next 



several months   and regularly visited Dr. Lord.          He also saw Dr. Estrada Bernard, a 



neurosurgeon, to address his continuing back pain.  Dr. Bernard suggested a discogram 



and raised the issue of disc replacement surgery. The discogram was performed in April 



2009 and demonstrated that Thompson had two damaged discs. 



               Thompson arranged for disc replacement surgery in Texas.               Dr. Richard 



Guyer performed the surgery in May 2009, replacing Thompson's two injured discs. 



Thompson       then  moved     to  Kodiak   and   continued    recovery   under    the  care  of  Dr. 



Hambleton,   a   family   medical   practitioner.   Thompson   testified   that   he   continues   to 



experience low back pain, but it has improved significantly since the surgery. 



        B.     Proceedings 



               Thompson   filed   a   complaint   against   Cooper   and   Central   (collectively 



"Central") in April 2009.       Central answered in June 2009 and ultimately admitted sole 



liability for Thompson's damages legally caused by the accident. 



               Thompson       submitted   a   supplemental   disclosure   giving    notice   he   was 



seeking   punitive   damages.      Central   moved   to   strike   or   for   summary   judgment   on 



Thompson's punitive damages claim, arguing that Thompson had not produced evidence 



from which a trier   of fact could find Cooper acted so outrageously that his conduct 



constituted "reckless indifference" to Thompson's interests.  Thompson responded that 



Central could be found to have acted recklessly by allowing a driver with "a condition 



known to adversely affect his driving to continue on 'urgent' errands."  The court denied 



Central's motion, determining there was a genuine issue of material fact whether Cooper 



                                                -4-                                           6713
 


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

failed to follow his doctor's recommendation to take Provigil, a drug "that helps a person 



stay   alert   and   awake   during   the   day,"   and   whether   this   failure   may   have   impaired 



Cooper's driving. 



                 Thompson moved for several pretrial rulings, including the preclusion of 



evidence concerning whether:  (1) his surgery was approved by the FDA or was part of 



an FDA clinical trial; and (2) Thompson was abusing or addicted to prescription pain 



medication.      Central   moved   to   preclude   evidence   concerning   Cooper's   Parkinson's 



disease. The court reserved for trial the issues of FDA clinical trial evidence and whether 



Thompson   was   abusing   prescription   pain   medication.           The   court   granted   Central's 



motion to exclude evidence of Cooper's Parkinson's in part - allowing the evidence 



only for its relevance to the punitive damages claim concerning Provigil. 



                 Thompson designated testimony from his treating physicians to be used at 



trial.  One aspect of this testimony focused on whether the accident caused Thompson's 



disc injury.  The testimony consisted of the physicians inferring, based on Thompson's 



statements   that   his   symptoms   began   after   the   accident,   that   he   was   injured   in   the 



accident. 



                 Central objected on several grounds, arguing that the testimony:                  (1) was 



                                                                    1 

improper opinion evidence under Marron v. Stromstad ;  (2) did not comply with Alaska 

Civil Rule 26(a)(2)(B);2  and (3) otherwise was irrelevant, unduly prejudicial, confusing, 



        1        123 P.3d 992 (Alaska 2005). 



        2        Alaska Civil Rule 26(a)(2)(B) provides that an expert witness must issue 



a written report that contains: 



                 [A] complete statement of all opinions to be expressed and 

                the basis and reasons therefor; the data or other information 

                 considered      by  the   witness   in  forming     the  opinions;    any 

                 exhibits    to  be  used   as  a  summary      of   or  support   for  the 

                                                                                           (continued...) 



                                                    -5-                                              6713
 


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

and    misleading      because    it  was   based    upon   incomplete      hypotheticals,     insufficient 

foundation, and speculation.3         The superior court sustained many of the objections and 



subsequently applied the ruling to Dr. Lord's trial testimony on causation as well.  The 



court explained at trial that the testimony was excluded because it was "really not expert 



testimony" as it was merely a "common sense" inference.  The court noted that because 



this type of causation analysis "doesn't really [f]all into any of the areas of expertise of 



any expert" it therefore was not the "proper province of expert testimony" and that it 



"really doesn't help the jury." 



                 During trial Central moved for a directed verdict dismissing Thompson's 



punitive damages claim, arguing that Dr. Downs had neither believed Cooper needed to 



take Provigil nor re-prescribed it for him.            Thompson pointed to evidence supporting 



Cooper's impairment at the scene of the accident and in general, as well as evidence that 



Cooper was aware of his impairment.              The superior court denied Central's motion for 



directed verdict and reiterated its "subtle but important distinction" that the punitive 



damages claim was limited to whether Thompson could prove Cooper chose not to take 



Provigil   to   combat   drowsiness,   then       chose   to   drive   while   drowsy    and   caused    the 



accident, reasoning this act would be similar to the criminal act of voluntary intoxication. 



        2	       (...continued) 



                 opinions; the qualifications of the witness, including a list of 

                 all publications authored by the witness within the preceding 

                 ten   years;   the   compensation   to   be   paid   for   the   study   and 

                 testimony;   and   a   listing   of   any   other   cases   in   which   the 

                 witness   has   testified   as   an   expert   at   trial   or   by   deposition 

                 within the preceding four years. 



        3        Cf. Alaska Rule of Evidence 403 (providing relevant evidence "may be 



excluded if its probative value is outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence"). 



                                                    -6-	                                              6713
 


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

                 At trial Central presented expert medical testimony by Dr. James Blue. 



Dr. Blue reviewed Thompson's medical records and concluded the cause of Thompson's 



ongoing back pain was unknown, but was not likely caused by any injury sustained in 



the accident.  Dr. Blue noted that Thompson's pain increased significantly following the 



discogram, and stated that the cause of the injury "if anything would be more likely 



related to his unnecessary surgery . . . or [Thompson's] early degenerative disc disease." 



Dr. Blue also stated that had the injury sustained in the accident "been allowed to resolve 



on its own," Thompson would not have experienced his ongoing problems. 



                 To address this evidence, Thompson offered two jury instructions based on 



the additional harm principle.           One was a reproduction of Alaska Civil Pattern Jury 



Instruction   20.12,   providing   that   a   defendant   is   liable   for   aggravation   of   an   injury 



resulting   from   failure   to   use   reasonable   care   in   providing   medical   treatment   for   the 

original injury.4    The other "modified [the rule] to fit Central's position as understood by 



        4         Alaska Civil Pattern Jury Instruction 20.12 provides: 



                 If  you    find  the   defendant     is  legally   responsible    for   the 

                 (accident),     you   may    award     the  plaintiff,   in  addition    to 

                 compensation for losses resulting from the original injury, 

                 (his) (her) losses resulting from: 



                 1.      [Aggravation of the original injury resulting from the 

                 failure    of   (insert   name    or   the   word    "others")     to  use 

                 reasonable care in providing medical or hospital treatment of 

                 the original injury.] 



                 2.      [Aggravation of the original injury resulting from the 

                 failure    of   (insert   name    or   the   word    "others")     to  use 

                 reasonable care in transporting the plaintiff to a place where 

                 medical treatment is available.] 



                                                    -7-                                               6713
 


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

Thompson."5 



        5        Thompson's modified additional harm instruction provided: 



                 If   you   find   the   defendants   are   legally   responsible   for   the 

                 accident,     you    may    award     the   plaintiff,   in   addition    to 

                 compensation for losses resulting from the original injury, his 

                 losses resulting from the failure of his physicians or others to 

                 use    reasonable      care   in   providing     medical     or   hospital 

                 treatment of the original injury.         Defendants are responsible 

                 for any additional bodily harm resulting from normal efforts 

                 of third persons in rendering aid which the victim's injury 

                 reasonably      requires,[]    even    if  the  aid   is  rendered     in  a 

                 negligent manner.  If an injured person uses ordinary care in 

                 selecting   a   physician   for   treatment   of   his   injury,   the   law 

                 regards the aggravation of the injury resulting from the acts 

                 of   the   physician    as   a  part  of  the   immediate      and   direct 

                 damages which naturally flow from the original injury.  Such 

                 events     should    be   reasonably     foreseeable     to   the  Central 

                 Plumbing/Cooper [d]efendants[.] 



                 Otherwise,   not   only   would   the   injured   party   be   forced   to 

                 second-guess   his   physician,   he   would   be   caught   in   a   vice 

                 which offers no correct choice of action.             On the one hand, 

                 his   damages      could    be   reduced     if  he   submitted     to  the 

                 physician's      treatment     and   it  was    later  argued     that  the 

                 physician chose a course of action that was inappropriate and 

                 unnecessary.      On   the   other   hand,   if   the   patient   refused   to 

                 follow the physician's advice, the tort-feasor could argue that 

                 the injured party's damages should be reduced because he 

                 failed    to  follow    his  physician's     instructions.     Thus,     the 

                 injured party is placed in a no win situation. 



                 This means that: 



                 You may not allocate fault to Sam Thompson's physicians 

                 for   the   failure    to  provide     proper    medical     care.     Sam 

                 Thompson's physicians are not parties to this case. 

                                                                                            (continued...) 



                                                     -8-                                               6713
 


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

                Central objected to both instructions, arguing that the modified instruction 



was argumentative and deviated from Alaska law and that the pattern instruction did not 



apply because there was no testimony that "there had been any failure to use reasonable 



care by those doctors in providing their care."  The superior court refused to submit the 



instructions     on   additional   harm,    finding   that   the  modified    instruction    was   "very 



confusing" and discussed unnecessary areas of law.  The court did not comment on the 



proposed pattern instruction or find that an additional harm instruction was unnecessary, 



but it did not give the pattern instruction to the jury. 



                Thompson also proposed a pattern instruction on superseding cause in light 



of Central's argument that Thompson's disc injuries were caused by some event that 



occurred after the accident.  Central objected, arguing that the instruction was confusing 



and presented a legal theory for which there was no factual support.  The superior court 



refused   to   give   the   instruction   to   the   jury,   explaining   that   superseding   cause   is   an 



affirmative defense to be asserted by the defendant, and in this case Central chose not to 



assert that defense and had not submitted evidence to support the theory.                    Further, it 



found that presenting multiple cause instructions would mislead the jury and was an 



attempt to improperly "shift the burden of proof" on causation to require that the jury 



find the accident must have caused the entire extent of Thompson's alleged injury, unless 



        5	      (...continued) 



                You may not reduce Sam Thompson's losses because of the 

                failure of Sam Thompson's physicians to provide reasonable 

                care. 



                You   may   not   allocate   fault   to   Amy   Christianson   for   her 

                actions or inactions or failure to provide proper medical care. 

                Amy Christianson is not a party to this case. 



                You may not reduce Sam Thompson's losses because of the 

                failure of Amy Christianson to provide reasonable care. 



                                                   -9-	                                            6713
 


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

Central proved otherwise. 



                The    jury  returned    a  verdict  finding    Thompson      was   entitled  to  some 



compensatory damages, but not punitive damages.   Both parties appeal several rulings. 



III.    STANDARD OF REVIEW 



                We generally review a trial court's decision to admit expert testimony for 

abuse    of  discretion6   and   will  reverse   "only    when   left  with   the  definite  and   firm 



conviction that the trial court erred in its decision."7        But when the expert testimony's 



admissibility turns on a question of law, we apply our independent judgment.8 



                Jury    instructions    involve   questions    of   law   to  which    we   apply   our 

independent judgment.9  "When reviewing a trial court's denial of a proposed instruction, 



our    inquiry   focuses   upon    whether    the  instructions   given,   when    read   as  a  whole, 

adequately inform the jury of the relevant law."10            "An error in jury instructions [is] 



grounds for reversal only if it caused prejudice."11        In evaluating whether there has been 



prejudicial error with regard to jury instructions, we put ourselves in the position of the 



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



Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1097 (Alaska 2002)). 



        7       Jackson v. Am. Equity Ins. Co. , 90 P.3d 136, 145 (Alaska 2004) (quoting 



L.C.H. v. T.S., 28 P.3d 915, 919 (Alaska 2001)). 



        8       Marron , 123 P.3d at 998 (citing Laidlaw Transit, Inc. , 53 P.3d at 1097). 



        9       See L.D.G., Inc. v. Brown, 211 P.3d 1110, 1118   (Alaska 2009) (citing 



Pagenkopf v. Chatham Elec., Inc. , 165 P.3d 634, 646 n.50 (Alaska 2007)). 



        10      Kavorkian v. Tommy's Elbow Room, Inc. , 694 P.2d 160, 166 (Alaska 1985) 



(citing Searfus v. N. Gas Co., 472 P.2d 966, 970 (Alaska 1970); Perzinski v. Chevron 

Chem. Co., 503 F.2d 654, 660 (7th Cir. 1974)). 



        11      State,   Dep't   of   Corr.   v.   Johnson,   2   P.3d   56,   59   (Alaska   2000)   (citing 



Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n.21 (Alaska 1999)). 



                                                 -10-                                            6713
 


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

jurors and "determine whether the error probably affected their judgment." 12 



                "We review the superior court's grant of summary judgment de novo and 



draw 'all factual inferences in favor of' and view 'the facts in the light most favorable 

to the non-prevailing party.' "13      We will "affirm a grant of summary judgment 'when 



there are no genuine issues of material fact, and the prevailing party . . . [is] entitled to 

judgment as a matter of law.' " 14 



IV.	    DISCUSSION 



        A.	     Compensatory Damages Issues 



                1.	     Thompson's treating physicians' opinion testimony on medical 

                        causation 



                Thompson appeals the superior court's exclusion of his treating physicians' 



opinion testimony on medical causation.             This testimony consisted of the physicians 



inferring, based on Thompson's statements that his symptoms began after the accident, 



that   his   discs   were   injured   in   the   accident. Thompson   contends   the   superior   court 



incorrectly   found   a Daubert  analysis   was   required   for   the   admission   of   his   treating 

physicians' testimony.15      We agree. 



                Alaska recognizes two general categories of expert testimony:               (1) expert 



opinion based on technical or scientific research and testing; and (2) expert opinion 



        12      Reich v. Cominco Alaska, Inc. , 56 P.3d 18, 25 (Alaska 2002) (quoting 



Cable v. Shefchik, 985 P.2d 474, 479 (Alaska 1999)). 



        13      Peterson v. State, Dep't of Natural Res. , 236 P.3d 355, 361 (Alaska 2010) 



(quoting Rockstad v. Erikson , 113 P.3d 1215, 1219 (Alaska 2005)). 



        14      Id. (quoting Rockstad , 113 P.3d at 1219). 



        15      See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-95 (1993) 



(establishing   test   for   assessing   admissibility   of   scientific   expert   testimony); State   v. 

Coon,   974   P.2d   386,   395-98   (Alaska   1999)   (partially   adopting   the Daubert   test   in 

Alaska). 



                                                 -11-	                                           6713
 


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

based on practical experience in the relevant field.16          Expert "testimony based strictly on 



'scientific   knowledge,'   that   is,   knowledge   that   has   been   'derived   by   the   scientific 

method,' " is generally subject to Daubert 's reliability and relevance requirements,17 but 



experience-based expert testimony does not   need   to meet Daubert 's requirements.18 



Instead   it   is   admissible   "when   the   expert   witness   has   substantial   experience   in   the 

relevant field and the testimony might help the jury."19 



                 Central argues that a Daubert analysis was required here based on our 



decision in Marron v. Stromstad .  Central misreads Marron .  In Marron we recognized 



that many federal courts have applied Daubert to exclude causation testimony by treating 



physicians,   but   we   explicitly   stated   that   the   expert   opinion   in   that   case   concerned 

Marron's course of treatment and did not address causation.20               We expressly declined to 



extend the Daubert rule to all expert testimony, and instead limited Daubert to "expert 



testimony based on scientific theory, as opposed to testimony based upon the expert's 

personal experience."21 



                 Although we recognized there is not a clear divide between the two general 



categories,   we   noted   that   experience-based   testimony   generally   "is   not   empirically 



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



        17      Daubert 509 U.S. at 589-95;Coon, 974 P.2d at 395-98. 



        18       See Marron v. Stromstad, 123 P.3d 992, 1004 (Alaska 2005) (declining to 



adopt Kumho Tire Co. v. Carmichael 's, 526 U.S. 137, 147 (1999), extension ofDaubert 

to all expert testimony). 



        19      Marsingill , 128 P.3d at 160; see also Alaska Evidence Rule 702(a). 



        20      Marron , 123 P.3d at 1001. 



        21      Id. at 1004. 



                                                   -12-                                              6713
 


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

verifiable or objectively testable,"22  and "depend[s] on a more subjective application of 



the expert's practical experience to the particular facts of the case,"23 while "scientific 



testimony is based on theory, and may be subjected to objective testing."24                    We later 



reiterated this point in Marsingill v. O'Malley , noting that in Marron "we limited our 



reliance on the Daubert  test to expert testimony based on scientific theory" and that 

"testimony based on personal experience is not covered by this standard."25 



                Thompson's treating physicians were experience-based experts.                    All had 



experience in treating injuries like Thompson's and they were familiar with his injury in 



particular.    All   three   doctors   relied   on   this   experience   in   developing   an   opinion   on 



causation,   subjectively   applying   their   practical   experience   to   the   particular   facts   of 



Thompson's injury. Their opinions on causation were neither empirically verifiable nor 



objectively testable.   It therefore was error to exclude such evidence under Daubert and 



Coon. 



                Central nonetheless argues the exclusion of this evidence was proper under 



two   other   theories.   First,   Central   claims   the   exclusion   of   this   evidence   was   proper 

because Thompson did not comply with Rule 26(a)(2)(B)'s disclosure requirements.26 



        22      Id. at 1006. 



        23      Id. 



        24      Id. 



        25      Marsingill   v.   O'Malley ,   128     P.3d   151,   160   (Alaska   2006)   (affirming 



superior court's finding that physicians who derived their expertise from experience did 

not have to meet Daubert 's requirements). 



        26      Rule 26(a)(2)(b) provides: 



                Except as otherwise stipulated or directed by the court, this 

                disclosure shall, with respect to a witness who is retained or 

                                                                                          (continued...) 



                                                   -13-                                             6713
 


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

But we have recognized that Rule 26(a)(2)(B) does not apply when the expert is the 

party's treating physician because a treating physician's testimonial role is "unique."27 



"Retained experts are presumed to be under the control of the party retaining them and 

are thus presumed to be cooperative,"28 but no such presumption is justified regarding 



a treating physician, whose testimony is based on experience attending to the patient 



rather than being hired to review a file and develop an opinion. 



                 Central next argues that the physicians' causation testimony was properly 



excluded under Evidence Rule 403 because the probative value of the testimony was 



outweighed by the danger of confusion of the issues or misleading the jury.                         But the 



superior court did not engage in this weighing and so could not have based its decision 



        26	      (...continued) 



                 specially employed to provide expert testimony in the case or 

                 whose duties as an employee of the party regularly involve 

                 giving expert testimony, be accompanied by a written report 

                 prepared and signed by the witness. The report shall contain 

                 a complete statement of all opinions to be expressed and the 

                 basis   and   reasons   therefor;   the   data   or   other   information 

                 considered      by   the  witness    in  forming     the  opinions;     any 

                 exhibits    to  be   used   as  a  summary      of   or  support   for   the 

                 opinions; the qualifications of the witness, including a list of 

                 all publications authored by the witness within the preceding 

                 ten   years;   the   compensation   to   be   paid   for   the   study   and 

                 testimony;   and   a   listing   of   any   other   cases   in   which   the 

                 witness   has   testified   as   an   expert   at   trial   or   by   deposition 

                 within the preceding four years. 



        27       Fletcher v. S. Peninsula Hosp. , 71 P.3d 833, 844-45 (Alaska 2003); see 



also Miller v. Phillips, 959 P.2d 1247, 1250 (Alaska 1998) (noting "[w]hen physicians 

are   called   to   testify   about   matters   pertaining   to   the   treatment   of   their   patients,   the 

distinction between an expert witness and a fact witness inevitably becomes blurred"). 



        28       Fletcher , 71 P.3d at 845 n.59. 



                                                    -14-	                                              6713
 


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

on Rule 403, and we do not believe the claimed risks outweigh the probative value of the 



evidence in this case. 



                Because   causation   was   the   central   issue   at   trial,   we   conclude   that   the 



exclusion could have had a substantial influence on the verdict and was sufficiently 



prejudicial   to   constitute   reversible   error.  Therefore   we   remand   for   a   new   trial   on 



compensatory damages. 



                2.      Additional harm instruction 



                A tortfeasor is generally liable for the consequences of any resulting injury, 



as well as any additional harm associated with medical care administered as an adjunct 

to the original injury.29   Thompson argues it was error to refuse to instruct the jury on this 



additional harm principle when Central's defense included the argument that several 



medical "misjudgments" by Thompson's physicians worsened Thompson's back injury. 



We agree. 



                The superior court did not determine that an additional harm instruction was 



unnecessary, but determined only that Thompson's modified version was too confusing 



to submit to the jury.     But the superior court was still required to instruct the jury on 



additional cause, as Central's theory fit squarely within the pattern instruction Thompson 

proposed.30    Due to the lack of this instruction, the jury may have accepted Central's 



argument and failed to allow Thompson recovery for any additional harm caused by his 



doctors' alleged failure to use reasonable care. This constitutes prejudicial and reversible 



        29      See Lucas v. City of Juneau, 127 F. Supp. 730, 731-32 (D. Alaska 1955); 



see generally RESTATEMENT (SECOND) OF TORTS   457 (1965). 



        30      See Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757, 764 (Alaska 2007) 



(citing Clary Ins. Agency v. Doyle, 620 P.2d 194, 201 (Alaska 1980)) (recognizing a 

party is generally entitled to a jury instruction if it is consonant with theory of case and 

supported by evidence). 



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error, and provides further reason to remand for a new trial on compensatory damages. 



                3.	     Superseding cause instruction 



                Thompson   appeals   the   superior   court's   refusal   to   instruct   the   jury   on 



superseding cause.       He argues that while it is "usually [the] defendant[] that seek[s] a 



superseding cause instruction," he "merely wished to arm the jury with the tools to 



assess" Central's claims regarding the occurrence of a "phantom event" unrelated to the 



car accident that caused Thompson's injuries. 



                The superior court reasonably found the instruction was unnecessary, as no 

party asserted the defense and it had the potential to mislead and confuse the jury.31 



Unlike an additional harm instruction, a superseding cause instruction would have been 



inconsistent with Central's admission of liability for Thompson's damages legally caused 



by   the   accident,   as   well   as   other   instructions   directing   the   jury   to   note   Central   had 



admitted negligence and that the issue to be decided was the amount of damages.  We 



conclude that the superior court did not err in declining to give the requested instruction. 



                4.	     Evidence of Thompson's alleged drug abuse and FDA approval 

                        of Thompson's surgery 



                Prior to trial Thompson moved for a ruling precluding references to his 



alleged   addiction   to   or   abuse   of   pain   medication   and   barring   evidence   concerning 



whether his surgery was approved by the FDA or part of an FDA clinical trial.  The 



superior court reserved the issues for trial.  Thompson did not renew or otherwise raise 



his objections at trial when Central presented Dr. Guyer's deposition testimony regarding 



the FDA clinical trials.   Nor did he renew or otherwise raise his objections at trial when 



Central   presented      evidence    regarding    alleged   pain   medication     abuse   or  addiction. 



        31      See, e.g., Crosby v. Hummell, 63 P.3d 1022, 1026 (Alaska 2003) (holding 



trial court did not err in refusing to give instruction which "might have caused" jury 

significant confusion). 



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Thompson nonetheless appeals, arguing the superior court erred in allowing Central to 



introduce the evidence at trial because it would confuse and mislead the jury and was not 



probative of any disputed fact. 



                Because   the   case   is   being   remanded   for   a   new   trial   on   compensatory 



damages,      and   we   do   not  know     the  course   of  those   proceedings,     we   leave    the 

determination of these evidentiary issues to the future discretion of the superior court.32 



        B.	     Punitive Damages Issues 



                1.	     Grant of summary judgment dismissing punitive damages based 

                        on factors other than Provigil use 



                Thompson appeals the superior court's summary judgment order dismissing 



his punitive damages claim, arguing the superior court erred in ruling that Hayes v. Xerox 

Corp.33 precluded Thompson from arguing for punitive damages based on allegations of 



Cooper's failure to use required eye-wear, speeding, impairment by Parkinson's disease 



and medication, and cell phone usage. 



                In Hayes we concluded that a driver's failure to see a red light due to a 

momentary distraction did not warrant the submission of a punitive damages claim.34  In 



reaching this decision, we relied upon the following Restatement language: 



                It is reckless for a driver of an automobile intentionally to 

                cross a through highway in defiance of a stop sign if a stream 

                of   vehicles    is  seen   to  be  closely   approaching      in  both 



        32      See, e.g., Schofield v. City of St. Paul, 238 P.3d 603, 609 (Alaska 2010) 



("[W]e express no opinion on the other evidentiary errors Schofield alleges.  Because it 

is unknown what specific evidence will be introduced on remand and what objections 

might be raised, we leave the determination of those eventual issues to the discretion of 

the superior court."). 



        33      718 P.2d 929 (Alaska 1986). 



        34      Id. at 936. 



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                directions, but if his failure to stop is due to the fact that he 

                has permitted his attention to be diverted so that he does not 

                know that he is approaching the crossing, he may be merely 

                negligent and not reckless.[35] 



Thompson disputes that Hayes provides a universal rule barring punitive damages in 



cases of a momentary diversion of attention.          He points out that in Hayes we provided 

that a momentarily distracted driver "may be merely negligent and not reckless"36 and 



contends that this language implies "the issue becomes one of degree."               We agree that 



we did not intend to issue a universal rule regarding momentary distraction in Hayes ; but 



we do not believe the facts differentiating this case from Hayes , even when viewed in the 

light   most   favorable   to   Thompson,37    required   the   superior   court   to   deny   summary 



judgment on factors unrelated to Cooper's Provigil use. 



                Thompson's speculative arguments are not sufficient to raise a genuine 

issue   of   material   fact.38 For   example,   Thompson   asserts   Cooper   was   not   wearing 



required corrective eye-wear when the accident occurred.              But the evidence was that 



Cooper does not have a problem seeing at a distance and needs only reading glasses. 



Thompson also asserts Cooper was speeding at the time of the collision based solely on 



the   fact  that  Cooper    agreed    his  trip  was  "urgent,"    rather  than   on  any   evidence 



demonstrating Cooper was driving over the speed limit.  Thompson asserts that Cooper 



was using his cell phone at the time of the accident.          But even if true, Alaska law does 



        35      Id. at 935 (emphasis omitted) (quoting RESTATEMENT (SECOND) OF TORTS 



 500 cmt b (1964)). 



        36      Id. (emphasis added). 



        37      Peterson v. State, Dep't of Natural Res. , 236 P.3d 355, 361 (Alaska 2010) 



(quoting Rockstad v. Erikson , 113 P.3d 1215, 1219 (Alaska 2005)). 



        38      Mahan v. Arctic Catering, Inc. , 133 P.3d 655, 661 (Alaska 2006). 



                                                -18-                                           6713
 


----------------------- Page 19-----------------------

not prohibit talking on a cell phone while driving.   We have never ruled that using a cell 



phone while driving, alone, amounts to reckless indifference, and we decline to do so 



here. 



                Similarly,   Thompson   asserts   Cooper   was   impaired   by   his   Parkinson's 



disease and the medication he takes to treat it.           But Thompson concedes "there is no 



direct evidence as to the severity of Cooper's Parkinson's or the effects of Parkinson's 



medication immediately at the time of the accident."  No evidence in the record indicates 



Cooper ever experienced negative side effects from his Parkinson's medications.  At all 



times before and after the accident Dr. Downs had no concerns about Cooper's driving 



and never concluded that he should not be operating a motor vehicle.                    Additionally, 



Richard Cook, Central's general manager, testified that he had ridden with Cooper five 



to six times per year and had always observed that Cooper drove normally.  Parkinson's 



disease is progressive, and although a person may eventually have serious enough effects 



from the disease to preclude driving, the mere fact that a person has Parkinson's disease 



and takes medications is not evidence the person is unfit to drive a vehicle.                This also 



disposes of Thompson's additional speculative argument that Cooper's failure to inform 



Officer Breiner of his Parkinson's disease amounted to "hiding his condition" and is an 



"implicit admission that [his] Parkinson's symptoms do, in fact, adversely affect his 



driving,   that   Cooper   appreciates   this   fact,   and   that   any   testimony   to   the   contrary   is 



untruthful." 



                We conclude Thompson did not present sufficient evidence to establish a 



genuine factual dispute on whether Cooper was recklessly operating his vehicle on the 



day of the accident or on any issue other than Cooper's Provigil use. 



                2.      Other issues 



                The superior court did not err in limiting the scope of Thompson's punitive 



damages claim, and the jury ultimately found no liability for punitive damages.  We 



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----------------------- Page 20-----------------------

therefore do not need to reach Central's appeal points regarding the superior court's 



denial of:   (1) Central's motion to prohibit evidence of Cooper's Parkinson's disease; 

(2) Central's motion for summary judgment on Thompson's punitive damages claim;39 



and (3) Central's motion for directed verdict on Thompson's punitive damages claim.40 



None of these issues should arise in the forthcoming proceedings on remand, which are 



limited to a new trial on compensatory damages. 



V.      CONCLUSION 



                We REVERSE the superior court's rulings precluding treating physicians' 



testimony   on   causation   and   declining   to   give   an   "additional   harm"   instruction   and 



REMAND   for   a   new   trial   on   compensatory   damages.       We   otherwise   AFFIRM   the 



superior court's rulings as discussed above. 



        39      We note that the denial of a summary judgment motion due to a factual 



dispute may not be appealed after trial.       Cameron v. Chang-Craft, 251 P.3d 1008, 1017 

(Alaska 2011) (citing  Larson v. Benediktsson , 152 P.3d 1159, 1169 (Alaska 2007)). 



        40      We   note   that   where   a   directed   verdict   motion   is   denied   and   the   jury 



ultimately finds in favor of the moving party, the directed verdict denial generally should 

be moot. 



                                                 -20-                                             6713 

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