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


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

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pralle v. Milwicz (5/9/2014) sp-6907

Pralle v. Milwicz (5/9/2014) sp-6907

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

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail  

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



                   THE SUPREME COURT OF THE STATE OF ALASKA  



JUSTIN PRALLE,                                        )  

                                                      )        Supreme Court No. S-14881  

                           Appellant,                 )  

                                                      )        Superior Court No. 3PA-11-01385 CI  

                  v.                                  )  

                                                      )        O P I N I O N  

JESSICA MILWICZ,                                      )  

                                                      )       No. 6907 - May 9, 2014  

                           Appellee.                  )  

                                                      )  



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

                                                                  

                  Judicial District, Palmer, Vanessa White, Judge.  



                  Appearances: Deborah Burlinski, Burlinski Law Office, LLC,  

                  Anchorage, for Appellant.  Gregory R. Henrikson, Walker &  

                                                        

                  Eakes, LLC, Anchorage, for Appellee.  



                  Before:  Fabe, Chief Justice, Stowers, Maassen, and Bolger,  

                                                                      

                  Justices. [Winfree, Justice, not participating.]  



                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  Jessica Milwicz negligently rear-ended a vehicle driven by Justin Pralle.  

                                                                           



In the lawsuit that followed, Milwicz admitted negligence but argued that she had not  



caused Pralle's injuries.  A jury agreed with her, and judgment was entered in Milwicz's  



favor.  Pralle appeals, arguing that the verdict was not supported by the evidence and that  

                                                                        



the superior court abused its discretion in its refusal to excuse several jurors for cause  

                                                                                      



and its admission of expert testimony.  We affirm the judgment.  


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

II.       FACTS AND PROCEEDINGS  



                    In June 2009 Jessica Milwicz negligently rear-ended a vehicle driven by  



Justin  Pralle  while  he  was  stopped  at  an  intersection  in  Wasilla.    Pralle  afterward  



complained of injury primarily in his neck and upper back, but over the months that  

                                  



followed he had complaints involving the rest of his back, hip, groin, shoulder, thumb,  



and elbow, in addition to headaches and facial numbness.  He had been in two earlier  

                                                                                                             



accidents,  in  2004  and  2005,  for  which  he  was  being  treated  by  his  longstanding  

                              



chiropractor, Dr. Bobby Lucas, as recently as a month before his accident with Milwicz.  

                                                                                                             



Dr. Lucas continued to treat Pralle after the accident.  



                    Pralle sued Milwicz for personal injury.  Milwicz admitted her negligence,  

                                                                                             



but she disputed that she had caused Pralle's injuries.  One of her witnesses at trial was  

                                



Dr. John Ballard, who had conducted an independent medical evaluation of Pralle.  In  



his testimony, Dr. Ballard minimized any injury from the accident with Milwicz, instead  



attributing Pralle's injuries to conditions that had developed from his earlier accidents.  

                                                                                                   



Pralle relied on the testimony of Dr. Lucas, who was allowed to testify as a "hybrid"  

                                              



expert witness based on his professional expertise and his direct experience as Pralle's  

                                                                            



treating physician.    



                    The jury found that the negligence of Milwicz was not a substantial factor  

                                                                        



in causing injury to Pralle.  The superior court entered judgment in favor of Milwizc and  



awarded her attorney's fees and costs as prevailing party.  



                    Pralle appeals.  He argues that there was insufficient evidence to support  

                                                            



the jury verdict; that the superior court erred in its jury instructions; that the superior  

                                                                                                               



court  abused  its  discretion  when  it  failed  to  grant  several  challenges  for  cause  of  

                                           



                                                             - 2 -                                                       6907
  


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

prospective jurors; and that the superior court abused its discretion with regard to the  



testimony of the two medical witnesses, Dr. Ballard and Dr. Lucas.  



III.      STANDARDS OF REVIEW  



                    When assessing whether the evidence presented at trial was sufficient to  

                                                                                                           



support  a  jury  verdict,  we  review  the  record  to  determine  whether  "  'the  verdict  is  

                                                                                             

contrary to the clear weight of the evidence,' "1 our goal being to ascertain whether  



                                                              2  

"there has been a miscarriage of justice."                       We "will not disturb a jury's verdict unless  

                                                                                                  



the evidence . . . is so clearly to the contrary that reasonable persons could not differ in  

                                                                                                         



their  judgment."3  

                               If  there  was  no  motion  for  a  new  trial  or  motion  for  judgment  



notwithstanding the verdict made in the trial court, we are "required to take the evidence  



and all inferences reasonably deducible [from the evidence] in the light most favorable  

                                                                                                      



to the appellee."4  

                                                                                                

                           We review the decisions of the superior court regarding challenges for  



                                                                     5  

                                                                               

cause in jury voir dire for abuse of discretion,                       and we will "interfere with the exercise  



                                                            

of that discretion only in exceptional circumstances and to prevent a miscarriage of  



          1         Heynen v. Fairbanks , 293 P.3d 470, 474 (Alaska 2013) (quoting Bolden v.  



City of Kodiak, 439 P.2d 796, 801 (Alaska 1968)).  



          2         Id. (internal quotation marks omitted).  



          3         Alaska Democratic Party v. Rice , 934 P.2d 1313, 1320 n.10 (Alaska 1997)   



(internal quotation marks omitted).  



          4         Heynen , 293 P.3d. at 474 (alterations in original) (internal quotation marks  

                                                                                                            

omitted).  



          5         Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1277 (Alaska 1988).  

                                  



                                                              - 3 -                                                        6907
  


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

            6  

                                                     

justice."    Similarly, we review the "trial court's decision to admit expert testimony for  



                                                                                        

abuse of discretion and will reverse 'only when left with the definite and firm conviction  



that the trial court erred in its decision.' "7  



IV.	      DISCUSSION  



                                                                                                        

          A.	       Sufficient Evidence Supports The Jury's Conclusion That Milwicz's  

                    Negligence Was Not A Substantial Factor In Causing Injury To Pralle.  



                                                                                                                     

                    Pralle challenges the jury verdict on two grounds.  First, he argues that the  



jury's two-hour deliberation gave it insufficient time to consider all the evidence, and  



                     

therefore the verdict cannot be valid.  Pralle does not allege any other jury misconduct,  



                                                      

nor  does  he  cite  any  authority  for  the  proposition  that  a  jury  must  deliberate  for  a  



minimum amount of time in order for its verdict to stand.  We have rejected challenges  



                                          8 

                                                                                                    

based on long deliberations,  and we have never reversed a verdict on grounds that the  



                                                                                                             

deliberation was too short. Case law from other jurisdictions indicates that new trials are  



          6         Id.  at 1275 (quoting        Mitchell v. Knight , 394 P.2d 892, 897 (Alaska 1964))  



(internal quotation marks omitted).  



          7	        Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012) (quoting Jackson  

                                                                                             

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



          8         See Kimble v. State, 539 P.2d 73, 79-80 (Alaska 1975) (upholding jury  



verdict resulting from deliberations that were allegedly "21 or 22 hours [long] without  

access to adequate rest facilities," where there was a "total lack of evidence that fatigue  

or coercion was a factor in the verdict");  West v. State, 409 P.2d 847, 851-52 (Alaska  

 1966) (upholding jury verdict following 14 hours of deliberation, despite affidavit of  

juror who attested that he had succumbed to pressure because of fatigue and nerves,  

where "[t]he mental pressure and exhaustion experienced by [the testifying juror] [were]  

           

not shown to have been any greater than that experienced by the other jurors").  



                                                             - 4 -	                                                     6907
  


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

                                                    9  

                                                                                             

rarely granted on such grounds.                        The jurors in this case were instructed to "examine the  



                                                                                     

evidence carefully and decide how to evaluate it in light of the law . . .  given . . . in these  



                         

instructions"; to "conscientiously consider and weigh the evidence, apply the law, and  



                                                                                                 

work to reach a verdict"; and to decide the case "only after you have fully considered the  



                                                                                                                        10  

                                                                                                                            We presume  

evidence, discussed it with the other jurors, and listened to their views." 



                                                                                                                                               11  

                                                                                                                               

that a jury follows the court's instructions, including broadly hortatory ones like these. 



We therefore decline to hold, absent specific allegations of juror misconduct, that a two- 

                                                                                              



hour deliberation is too short to result in a valid verdict.  



                      Pralle's  second  challenge  to  the  verdict  is  that  the  jury  ignored  the  



                                                                 

uncontroverted medical testimony on causation; he argues that both Milwicz's expert  



                                                                                                                              

witness, Dr. Ballard, and Pralle's treating physician, Dr. Lucas, testified that the accident  



caused Pralle some injury.  But Dr. Ballard's testimony was ultimately equivocal.  He  



                                                                                                

testified  that  "giving  [Pralle]  the  benefit  of  the  doubt  on  his  history,  going  on  his  



subjective complaints, I thought he had a mild cervical and thoracic strain."  But this  



                                                                                                            

assessment was based on Pralle's "subjective complaints," and Dr. Ballard testified it  



                                    

was also possible to conclude that "with this amount of impact there would have been  



           9           11 CHARLES ALAN  WRIGHT , ET AL .,  FEDERAL PRACTICE AND PROCEDURE  



 2810 (3d ed. 2013).                  See also Segars v. Atl. Coast Line R.R. Co., 286 F.2d 767, 770  

(4th Cir. 1961) ("We know of no rule of law which prescribes how long a jury should   

be required to deliberate before returning its verdict.                                  Of course, as was observed by the  

District Judge, the verdict should be the result of conscientious deliberation, but the fact     

that the verdict was returned within a few minutes does not necessarily show that the jury                                    

disregarded this duty, and it is not sufficient of itself to justify a new trial.").  



           10         Jury Instructions No. 7 and No. 23.  



           11          Cent. Bering Sea Fishermen's Ass'n v. Anderson, 54 P.3d 271, 281 (Alaska  



2002).  



                                                                     - 5 -                                                              6907
  


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

no injury and his symptoms could have been from all the preexisting problems."                                            The  



jury reasonably could have concluded that Dr. Ballard's testimony did not require a  



finding of causation.  



                                                                                                                

                    Moreover, other evidence supported the jury's verdict.  After the accident  



                                                              

neither party filed a police report, called for an ambulance, or went to the hospital.  In  



                                                                                                                

the absence of other eyewitnesses, the jury had to rely on the accounts of the two persons  



involved in the accident as to what happened, and their accounts differed.  Milwicz  



testified that she "tapped" Pralle's car while traveling at three or four miles per hour.  



Pralle testified that he thought she was moving faster and that he was "jolted" by the  



                                                                              

impact, his head whipping back and forth.  Milwicz testified that she inspected the cars  



                                                                                                                    

after the accident and found no damage to either car, and that Pralle agreed with her  



                                                                                                            

assessment.  Pralle disputed this; he testified that he noticed a crinkling of paint on his  



                                                                     

vehicle about four to six inches long. Milwicz also testified that Pralle mentioned he had  



                                                                                                            

been in an unreported car accident a year before, that he had been seeing a chiropractor,  



and  that  he  would  continue  seeing  the  chiropractor  because  of  that  earlier  accident.  



                                                       

Pralle testified that his neck felt stiff as soon as he got out of his car; he testified that he  



told Milwicz he would be visiting his chiropractor because of their accident, not because  



of an earlier one.  



                          

                    On  appeal,  we  must  view  these  conflicting  accounts  in  the  light  most  



                                                                   12  

                                                                       It is clear that Milwicz's testimony, if  

favorable to the party who prevailed at trial.                                                



believed, supports the jury's conclusion that the accident caused Pralle no injury.    



                    Furthermore,  the  jury  heard  other  plausible  explanations  for  Pralle's  



medical complaints.  His first car accident, in January 2004, caused him back injuries  

                                 



          12        Heynen v. Fairbanks , 293 P.3d 470, 474 (Alaska 2013).  



                                                             - 6 -                                                          6907  


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

that still bothered him when his next accident occurred nearly two years later.  In the     



December 2005 accident, Pralle stretched ligaments in his neck and displaced vertebrae   



in his mid- and lower back.  Between 2004 and the accident with Milwicz in 2009, Pralle   



had visited his chiropractor over a hundred times for treatment of his lingering injuries.   



His employer had bought him an ergonomic chair to help alleviate neck and back pain.   



While he testified at his deposition that he had been pain-free for at least six months                                 



before  the  2009   accident,   he  had  visited  the  chiropractor  twice   the  month  before,  



claiming neck pain of five or six on a ten-point scale. In addition, after the 2009 accident                                                                      



Pralle complained of symptoms in his lower back, elbow, wrist, and foot, as well as                                                                                             



numbness or tingling in his hip and thumb.  But Dr. Ballard testified that those injuries   



were unlikely to be related to the 2009 accident and, assuming that Pralle had suffered  



                                                           

some  neck  strain,  that  it  should  have  been  fully  resolved  within  two  months.    A  



                                     

reasonable  jury  could have found that weaknesses in Pralle's testimony reduced his  



credibility, and that any injury he still suffered was long-standing and unrelated to the  



accident at issue.  

                                                                                                                                13  The plaintiff in Richey was  

                              We considered similar facts in Richey v. Oen .                                                         



                                                                                                14  

rear-ended while stopped at a traffic light.                                                         She testified that she complained of her  



injuries while at the accident scene, but this was disputed by both the defendant and the  

                                                                                                           

responding police officer.15  The defendant claimed he had only bumped the plaintiff and  

                                                                                                                        



there was hardly any damage to her car; he also contended that the plaintiff had been in  



a number of other auto accidents and falls during the preceding 20 years, causing her  



               13             824 P.2d 1371 (Alaska 1992).  



               14            Id. at 1372.  



               15            Id. at 1372-73.  



                                                                                            - 7 -                                                                                    6907
  


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

            16  

injuries.       The plaintiff had sought treatment for back pain as recently as two months  



                               17  

before  the  accident.               Her  treating  physician  subsequently  diagnosed  her  with  an  

accident-caused injury, but another doctor testified that her condition was unrelated.18  



                    The superior court entered a directed verdict on the defendant's negligence,  



                                                                 

but the questions of causation and damages were submitted to the jury, which found for  

                  19   On appeal, the plaintiff argued that "she suffered at least 'some' damages  

the defense.                                             



as a result of the accident and that the evidence suggesting otherwise [was] so completely  

                                                                                     



lacking  or  [was]  so  slight  and  unconvincing  as  to  make  the  jury's  verdict  plainly  

                                                 



                                       20  

unreasonable and unjust."                  We concluded that the superior court did not err when it  

                            



refused to grant the plaintiff a new trial:  



                    In the face of conflicting testimony, the jury determined that  

                    [the plaintiff] suffered no injuries as a result of the accident.  

                                                           

                    Jurors  are  entitled  to  disbelieve  a  witness  or  otherwise  

                    discount        a    witness's         testimony.             Such       credibility  

                                                                                

                    determinations           made       by     the    jury     are     generally        left  

                                                                                      

                    undisturbed by this court on review.  On the record before us,  

                                            

                    we  cannot  say  that  the  evidence  supporting  the  jury's  

                    conclusion  is  so  slight  or  unconvincing  as  to  render  the  

                    verdict  either  unfair  or  unreasonable.                    Accordingly,  the  

                                                                                  



          16        Id. at 1373.  



          17        Id. at 1376.  



          18        Id. at 1375-76.  



          19        Id. at 1373.  



          20        Id. at 1375.  



                                                             - 8 -                                                       6907
  


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

                                                            

                     superior court did not err in denying [the plaintiff's] motion  

                                           [21] 

                     for a new trial.  



                                                                                                               

                    The present case closely parallels Richey . There are similar disputes about  



the  seriousness  of  the  accident,  statements  at  the  scene,  the  plaintiff's  condition  



beforehand, the medical testimony, and causation.  We are not convinced the result here  



                                                                                                                            

should be any different.  We "will not disturb a jury's verdict unless the evidence . . . is  



                                                                                                                                 22  

                                        

so clearly to the contrary that reasonable persons could not differ in their judgment." 



                

Viewing the evidence and all reasonable inferences from it in favor of Milwicz, as we  

must,23 we conclude that it is sufficient to support the jury's finding that her negligence  



was not the cause of Pralle's injuries.  



                                      

          B.	        The Trial Court Did Not Abuse Its Discretion When It Denied Pralle's  

                     Challenges Of Two Jurors For Cause.  



                                                                                                

                    Pralle argues that the superior court erred when it refused to dismiss three  



                                                                                                                         24  

                                                                                                                             The  

jurors he challenged for cause pursuant to Alaska Civil Rule 47(c)(2) and (3). 

                                                                       25  The record unequivocally shows that  

                                                                            

three challenged jurors were B.T., Z., and E.G.  



          21	       Id. at 1376 (internal citations omitted).  



          22        Alaska Democratic Party v. Rice , 934 P.2d 1313, 1320 n.10 (Alaska 1997)   



(internal quotation marks omitted).  



          23	       Heynen v. Fairbanks , 293 P.3d 470, 474 (Alaska 2013).  



          24  

                                                                              

                    Alaska R. Civ. P. 47(c)(2)-(3) ("The following are grounds for challenge  

for cause: . . . (2)  That the person is biased for or against a party or attorney.  (3)  That  

the person shows a state of mind which will prevent the person from rendering a just  

                                                               

verdict, or has formed a positive opinion on the facts of the case or as to what  the  

                                                                                                                      

outcome should be, and cannot disregard such opinion and try the issue impartially.").  



          25        We use initials to protect the jurors' privacy.  The full name of Juror Z.  



does not appear in the record.  



                                                               - 9 -	                                                      6907
  


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

E.G. was excused for cause on Pralle's request, however, and we therefore address only         



Pralle's challenges to B.T. and Z.  



                                                                              

                      B.T.   testified   in   voir   dire   that   he   had   an   unfavorable   opinion   of  



                                       

chiropractors; this was relevant information since Pralle's case relied on the testimony  



of     Dr.      Lucas,        his     treating       chiropractor.               Z.'s      view       of     chiropractors            was  



ambivalent - "They're good for some things and some things I don't think they're that  



                                                                                                         

good for."  He also testified he would be less inclined to award damages to a plaintiff  



with only soft tissue injuries, which are the kind Pralle alleged.  



                                                                     

                      After Pralle challenged these jurors for cause, the superior court questioned  



                                                                                       

them further.  B.T. responded that although he "might have a bias" against chiropractors,  



                                            

it would not overcome his ability to listen to the evidence.  Z. likewise affirmed that he  



                       

could put his personal feelings aside, follow the judge's instructions on the law, and be  



                               

fair.  The superior court thereupon denied the challenges for cause as to B.T. and Z.; in  



contrast,  it  granted  the  challenge  for  cause  as  to  E.G.,  explaining  that  E.G.  was  



                                                                                                                              

apparently unwilling to fairly evaluate chiropractors' testimony "regardless of what they  

actually said."  The superior court clearly gave thoughtful consideration to the issue.26  



                                                                                                    

                      In Beck v. State, Department of Transportation and Public Facilities , we  



                                              

held  that  we  would  "only  interfere  with  the  sound  discretion  of  the  trial  court  to  



                                                                                                                              

determine challenges of jurors for cause 'in exceptional circumstances and to prevent a  



                                          27  

miscarriage  of  justice.'  "                  We  determined  in  Beck  that  a  juror  should  have  been  



                                                                              

dismissed for cause under Rule 47(c) when she admitted to personal knowledge of the  



                                                                                                                              

facts of the case, had visited the accident scene, had formed an opinion about what had  



           26         Both B.T. and Z. were subsequently excused on peremptory challenges.  



           27         837 P.2d 105, 111 (Alaska 1992) (quoting Sirotiak v. H.C. Price Co., 758  



P.2d 1271, 1275 (Alaska 1988)).  



                                                                  -  10 -                                                               6907  


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

happened, and expressed clear reservations about whether her mind could be changed  



                                                                          

by the evidence presented at trial and whether she could faithfully follow the court's  



                   28  

instructions.    Here, in contrast, the challenged jurors affirmed that they could set aside  



their personal biases and decide the case on the evidence.  



                     Rule  47(c)(3)  does  not  require  that  a  prospective  juror  be  free  of  any  



                                                                                                                         

positive opinions about the facts and outcome of the case; instead, it directs the court to  



                                                                                                                          29  

                                                                                                                               We  

examine whether the juror is willing to set those opinions aside and act fairly. 



                                                                                          

noted in Sirotiak v. H.C. Price Co. that we do not require "unequivocal and absolute"  



                                                    30  

                                                                                                                  

impartiality of prospective jurors.                     We observed, "[W]e doubt the truly honest juror  



                                                                                                              

could state unequivocally and absolutely that his or her biases will have no effect on the  



                                                                            

verdict.  All that is required of a prospective juror is a good faith statement that he or she  



                                                                        31  

will be fair, impartial and follow instructions."                            Here, the superior court elicited the  



                                                                          

required "good faith statement" from two of the three challenged jurors and excused the  



                                                                 

third.    We  cannot  say  that  it  abused  its  discretion  when  it  accepted  the  two  jurors'  



assurances that they could set aside their biases and be fair.   



          28        Id. at 111-12.  



          29        Mitchell v. Knight , 394 P.2d 892, 897 (Alaska 1964) ("It is true that the  



challenged juror said that he would be more conservative than the average juror. But he  

                                                                                        

also said that he felt he could be fair and impartial, that he would allow a justifiable  

                            

award, and that he would follow the instructions of the court in arriving at a verdict. The  

                                                                                                                    

judge had the opportunity to listen to what the juror said and to observe his demeanor.  

                                                                                               

We cannot say that the judge was wrong in concluding that the juror's state of mind was  

such that he was able to render a just verdict.").  



          30         758 P.2d at 1277.  



          31        Id.  



                                                              -  11 -                                                       6907
  


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

                                                                                       

                         C.	         The Trial Court Did Not Abuse Its Discretion In Its Rulings On  

                                     Expert Testimony.  



                         Pralle contends that the superior court erroneously restricted the expert  



testimony of his treating chiropractor, Dr. Lucas.  He also contends that the superior  



court erroneously allowed Dr. Ballard, the defense's medical expert, to testify about  



                                                                                                                                    

matters outside his expertise, such as biomechanics. Pralle reasons that these two errors,  



                                                                                                        

in combination, unfairly invited the jury to give more weight to Dr. Ballard's expert  



opinion than to Dr. Lucas's.  



                                                                                                              

                         The superior court characterized Dr. Lucas as a "hybrid" witness based on  



his status as a treating physician, and it permitted him to testify as follows:  



                                                                                                                          

                         He can testify about his patient and what happened with his  

                                                                    

                         patient,  but  he  is  not  allowed  to  testify  in  general  about  

                                                                                    

                         whiplash  types  of  impacts  or,  you  know,  anything  that  a  

                         disconnected non-treating expert would testify about.  So he  

                                                                                                   

                         can talk about what happened with Mr. Pralle based on what  

                         he knows, what his opinion is that happened to Mr. Pralle;  

                                                                                                                                   [32] 

                                                                            

                         diagnosis, causation in that limited framework, prognosis.  



                                                                                                

                         Pralle claims that these restrictions on Dr. Lucas's testimony - limiting it  



                                                                    

to "what happened with Mr. Pralle" to the exclusion of "whiplash types of impacts" in  



                                                                                                                  

general - violate the relevant standards for admissibility as discussed in Thompson v.  



               33  

                                                                                                           

Cooper.             In  Thompson, we determined that a treating  physician's testimony about  



            32           See Miller v. Phillips, 959 P.2d 1247, 1250 (Alaska 1998) (noting that the                                  



trial court considered the plaintiff's treating   physician, who had not been listed as a  

potential expert witness, to be a "hybrid" witness, and that "while he would be forbidden       

from testifying in general terms about the appropriate standard of care, he would be                                                           

allowed to testify as to 'his expert observations' and 'his own opinion as to what he   

observed' ").  



            33           290 P.3d 393 (Alaska 2012).  



                                                                           -  12 -	                                                                    6907
  


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

                                                                                                   

medical causation should be allowed as experience-based expert testimony, not subject  



                                                                                                          34  

                                                                                                              We explained  

to the Daubert test for the admissibility of scientific expert testimony. 



the  difference  between  the  two  with  reference  to  our  earlier  opinion  in  Marron  v.  



                  

Stromstad ,  in  which  "we  noted  that  experience-based  testimony  generally  'is  not  



empirically  verifiable  or  objectively  testable,'  and  'depend[s]  on  a  more  subjective  



                                         

application of the expert's practical experience to the particular facts of the case,' while  

'scientific testimony is based on theory, and may be subjected to objective testing.' "35  



                                                                                

                    The superior court in this case correctly characterized Dr. Lucas as a hybrid  



                                               

expert  whose  testimony  was  admissible  based  on  both  his  expertise  and  his  direct  



                                                                     

observations of his patient.  Pralle contends, however, that the restrictions the superior  



court placed on Dr. Lucas's testimony kept him from testifying "that the injuries he  



                                                                                                     

observed with Mr. Pralle were or were not consistent with the type [of] vehicle accident  



                             

which occurred in this case."  But it appears that Dr. Lucas did give such testimony, and  



                                                                        36  

                                                                            and his direct observations as Pralle's  

that he based it on both his professional expertise 



                                                                             

treating physician.  Dr. Lucas was asked on direct examination to explain how he went  



                                       

about determining, in the hypothetical case,  "what injuries have been caused by the auto  



                                                                                                      

accident and what may not be caused by an auto accident" when a patient first came in  



     

to see him, and he responded by reference to his training in applied kinesiology, other  



          34        Id.  at  399.    The  Daubert  test  for  the  admissibility  of  scientific  expert  



testimony is derived from Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 589-95  

                                                                                                   

(1993).  



          35        Id. at 399-400  (alteration in original) (footnotes omitted) (quoting Marron  

                                                                                             

v. Stromstad, 123 P.3d 992, 1006 (Alaska 2005)).  



          36        Dr. Lucas testified about his qualifications, his extensive experience treating  



patients injured in motor vehicle accidents, and the refresher courses he took annually  

                                                                                                               

related to the kinds of injuries at issue in this case.  



                                                              -  13 -                                                      6907
  


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

classes he has taken, and his observations of the patient - "how they're standing [or]  



                                                                                  

sitting" and how they hold their head.  He testified generally about the motion of the  



                                                 

head and the trauma likely  to  occur from a rear-end collision.  He testified without  



                                                                                           

objection that, following the 2009 accident, he determined that Pralle "had reinjured his  



neck.  It had another hyperflexion type injury to the spine."  



                                                                                                                       

                    Pralle  did  not  make  any  offer  of  proof  in  the  superior  court  as  to  the  



                                                                                                                        37 

                                                                                                                           in fact,  

substance of any additional expert testimony he would have elicited if allowed; 



                  

he remains equivocal in his appeal brief as to whether Dr. Lucas's testimony would have  



                                           38  

                                                                                  

fully supported his position.                  Nor does Pralle direct our attention to any questions that  



                                                     

Dr. Lucas was asked but was not allowed to answer.  Given these shortcomings in the  



record,  and  given  the  testimony  that  Dr.  Lucas  gave  without  objection  despite  the  



                                  

limitations placed on his testimony, we are unable to conclude either that the superior  



                                                                   

court's restrictions actually resulted in the exclusion of significant evidence or that the  



          37        See, e.g., Adamson v. Univ. of Alaska, 819 P.2d 886, 890 (Alaska 1991)  



(acknowledging "the principle that it is the appellant's burden to convince us that the  

                                                           

[trial court's] decision to exclude the evidence was in fact prejudicial and not harmless").  

                                                                                                         

See also Alaska R. Evid. 103(a)(2) ("Error may not be predicated upon a ruling which  

                                                                                 

admits or excludes evidence unless a substantial right of the party is affected; and . . .  

[i]n case the ruling is one excluding evidence, the substance of the evidence was made  

                                                                                                                       

known to the court by offer or was apparent from the context within which questions  

                      

were asked.").   



          38  

                                                                                                            

                     In his brief, Pralle writes that Dr. Lucas "should  have  been allowed to  

                                                                                                    

testify that the injuries he observed with Mr. Pralle were or were not consistent with the  

type [of] vehicle accident which occurred in this case."  



                                                              -  14 -                                                        6907
  


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

                                                                                    39  

restrictions affected any substantial right of Pralle's.                                We therefore have no basis on  



which to find an abuse of discretion.   



                     In a closely interrelated argument, Pralle contrasts the restrictions placed  



                          

on Dr. Lucas's testimony with what Pralle alleges was a much greater latitude given to  



                                           

the defense's witness, Dr. Ballard, who despite having "examined Mr. Pralle only once  



and reviewed his records, was permitted to testify as an expert witness regarding medical  



                                                                                                           

issues and issues of causation similar to a bio-mechanical expert."  Again, our review is  



                                                                                                                          

hampered  by  Pralle's  failure  to  direct  us  to  specific  places  in  the  record  that  could  



substantiate his claims that Dr. Ballard testified beyond his expertise.  



                     Dr. Ballard was qualified as an expert in orthopedic surgery, and Pralle  



does not challenge his qualifications in that field.  Like Dr. Lucas, Dr.  Ballard was  



                                       

allowed to testify about causation and prognosis - issues that are generally within the  



                                                                       

competence of an examining physician.  To the extent Pralle is arguing that Dr. Ballard  



                                                                                                              

was allowed to give the opinions of an examining physician whereas Dr. Lucas was not,  



                                              

the record does not support the argument.  And like any qualified physician, including  



                                                                  

Dr.  Lucas,  Dr.  Ballard  was  allowed  to  consider  the  likely  mechanical  forces  of  the  



                                                                                             

accident as it was described by the parties involved, to the extent it helped him evaluate  



Pralle's injuries.   



                                                  

                     Again, we see no basis in the record for concluding that Dr. Ballard testified  



                                    

beyond his expertise; we are therefore unable to conclude that the superior court abused  

its discretion with regard to Dr. Ballard's testimony.40  



           39        See Alaska Evid. R. 103(a) ("Error may not be predicated upon a ruling     



which admits or excludes evidence unless a substantial right of the party is affected.").             



           40        Pralle also asserts on appeal that the superior court failed to give a jury  



                                                                                                                     (continued...)  



                                                                 -  15 -                                                              6907  


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

V.       CONCLUSION  



                  The judgment of the superior court is AFFIRMED.  



         40(...continued)  



instruction addressing concurrent cause and that this was plain error.   Our review of the  

                                                                                                               

record and the audio recording of the trial confirms that the instruction was in fact given,  

                                                                                

and we therefore do not consider the issue further.  



                                                       -  16 -                                                   6907  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC