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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 (12/7/2012) sp-6728

Thompson v. Cooper (12/7/2012) sp-6728

        Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

        Readers are requested to bring errors to  the attention ofthe Clerk ofthe 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.                                      ) 

                                               )   OPINION 

MICHAEL J. COOPER and                          ) 

CENTRAL PLUMBING & HEATING,                    ) 

                                               )   No. 6728 - December 7, 2012 

                      Appellees and            ) 

                      Cross-Appellants.        ) 



----------------------) 
 



               Appeal from the Superior Court ofthe State ofAlaska, Third 

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



               Appearances: Charles W. Ray, Jr., Law Offices ofCharles 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.e., 

              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 4-----------------------

 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 motiom.    We affmn 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 ofajury 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 



W2.S  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 ofParkinson 's on Cooper's ability to drive, and Dr. Downs concluded she "didn't 



see any reason why shouldn't drive iffelt 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-                                      6728 
 


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

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 offthe 



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. 



              Christiansentestified 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-                                         6728 


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

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 ofdisc 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 fmd  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 ofmaterial fact whether Cooper 



                                           -4-                                       6728 


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

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 ofFDA 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 ofthis testimony focused on whether the accident caused Thompson's 



disc injury. The testimony consisted ofthe 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 



improper opinion evidence under Marron v. Stromstad;1 (2) did not comply with Alaska 



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



               123 P.3d 992 (Alaska 2005). 



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

a v.Titten 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-                                         6728 


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

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 ofthe 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 ofthe 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 ofvoluntary intoxication. 



        2 	    (...continued) 



               opinions; the qualifications ofthe 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 ifits probative value is outweighed by the danger ofunfair prejudice, confusion 

ofthe issues, or misleading thejury,  or by considerations ofundue delay, waste oftime, 

or needless presentation of cumulative evidence"). 



                                                -6-	                                         6728 
 


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

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



Dr. Blue reviewed Thompson's medical records and concluded the cause ofThompson' 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 twojury 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   fmd   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 ofthe 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 ofthe 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-                                        6728 
 


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

Thompson."s 



       5      Thompson's modified additional harm instruction provided: 



              If you  fmd  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 ofhis physicians or others to 
 

              use   reasonable    care  in  providing   medical    or  hospital 
 

              treatment ofthe 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.    Ifan 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 ofaction 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-                                         6728 


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

               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 oflaw.           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 ofThompson' s alleged injury, unless 



       5 	     (...continued) 



               You may not reduce Sam Thompson's losses because ofthe 

               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-	                                         6728 
 


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

 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. 



 m.     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.'"  But when the expert testimony's 



admissibility turns on a question oflaw, we apply our independentjudgment.8 



               Jury  instructions  involve   questions  of  law  to  which   we   apply  our 

independentjudgment. 9    "Whenreviewing a trial court's denial ofa proposed instruction, 



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



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



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



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



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

 Transit, Inc.  v. Crouse ex reI.  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 

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



       10     Kavorkianv.  Tommy 'sElbow Room,Inc. , 694P.2d 160, 166 (Alaska 1985) 

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

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



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

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



                                            -10-                                         6728 


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

jurors  and "determine whether the en-or probably affected their judgment."12 



               "We review the superior court' s grant of summaryjudgment 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 summaryjudgment  '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 ofhis 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 



incon-ectly  found  a Daub ert  analysis was  required  for  the  admission  of his  treating 



physicians'testimony.ls     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.  Cominca 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 ofNatural 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-	                                      6728 
 


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

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 appliedDaubert to exclude causation testimony by treating 



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

                                                                            20 

Marron's course oftreatment and did not address causation.                     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.     0  '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-                                               6728 
 


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

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,,,2J while "scientific 



testimony is based  on theory,  and may be  subjected to  objective testing."z4                We  later 



reiterated this point in Marsingill v.       0 '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."z5 



                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.     Ittherefore was error to exclude such evidence under Daubert and 



Coon. 



                Central nonetheless argues the exclusion ofthis 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?6 



        22      Id. at  1006. 



        23      Id. 



                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 -                                            6728 


----------------------- Page 16-----------------------

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 me 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 ofthe 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-	                                           6728 


----------------------- Page 17-----------------------

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

 evidence in this case.29 



                 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 ofany resulting injury, 



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



to the original injury.30  Thompson argues it was error to refuse to instruct thejury 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 

            31 

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



        29      We    also  disagree  with  Central's  additional        argument  that  the  treating 

physicians'  testimony could not "assist the trier of fact to understand the evidence or 

determine a fact in issue," and therefore was inadmissible under Evidence Rule 702(a). 



        30      See Lucas v.     City ofJuneau,     127 F.  Supp. 730, 731-32 (D. Alaska  1955); 

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



        31      See Parnell v.  Peak Oilfield Servo        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 ajury instruction if it is consonant with theory of case and 

                                                                                         (continued...) 



                                                  -15-                                                6728 


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

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



dcoctors'  alleged misjudgments.      This constitutes prejudicial and reversible 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 ofa "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.32 



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



inconsistent with Central' s admission ofliability 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 



       31      ( ...continued) 

supported by evidence). 



       32      See, e.g., Crosbyv. 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). 



                                               -16-	                                        6728 
 


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

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



hi> 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. 



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



introduce the evidence at trial because it would confuse and mislead thejury 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 ofthese evidentiary issues to the future discretion ofthe superior COurt.33 



       B. 	   Punitive Damages Issues 



               1. 	  Grant ofsummaryjudgment dismissing punitive damages based 

                     on factors other than Provigil use 



              Thompson appeals the superior court's summaryjudgment order dismissing 



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



Corp.34 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 



       33     See,  e.g., Schofield v. City ofSt.  Paul,  238 P.3d 603, 609 (Alaska 2010) 

("[\V]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 ofthose eventual issues to the discretion of 

the superior court."). 



       34     718 P.2d 929 (Alaska  1986). 



                                            -17-	                                       6728 


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

 momentary distraction did not warrant the submission ofa punitive damages claim.35  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 ofa stop sign if a stream 

                 of  vehicles     is  seen   to  be   closely    approaching      in  both 

                 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 recklessY6] 



 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,,37 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 inHayes; but 



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



 light  most   favorable  to    Thompson,l8  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 

                             39 

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



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



         35 

                 Id.  at 936. 



         36      Id.  at 935 (emphasis omitted)(quotingREsTATEMENT(SECOND)OFToRTS 

  500 cmt b (1964)). 



         37 

                 Id. (emphasis added). 



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

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



        39 

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



                                                   -18-                                              6728 


----------------------- Page 21-----------------------

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



Thompson also asserts Cooper was speeding at the time ofthe 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 



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 ofthe 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 aperson 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 ofThompson's additional speculative argument that Cooper's failure to inform 



Of!icer 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." 



                                              -19-                                           6728 


----------------------- Page 22-----------------------

              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 ofThompson' s punitive 



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



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 summaryjudgment on Thompson's punitive damages claim;40 



and (3) Central's motion for directed verdict on Thompson's punitive damages claim.41 



None ofthese 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. 



       40     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)). 



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

ultimately fmds in favor ofthe moving party, the directed verdict denial generally should 

be moot. 



                                            -20-                                       6728 

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