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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Achman v. State (5/9/2014) sp-6909

Achman v. State (5/9/2014) sp-6909

         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  



MARJORIE ACHMAN, on                                     )  

behalf of CHARLES T. KEMP III,                          )        Supreme Court No. S-14830  

                                                        )  

                            Appellant,                  )        Superior Court No. 4FA-10-01463 CI  

                                                        )  

                   v.                                   )        O P I N I O N  

                                                        )  

STATE OF ALASKA,                                        )        No. 6909 - May 9, 2014  

                                                        )  

                            Appellee.                   )  

                                                        )  



                   Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                   Fourth Judicial District, Fairbanks, Michael A. MacDonald,  

                                                                      

                   Judge.  



                   Appearances: Jason A. Weiner, Gazewood & Weiner, P.C.,  

                   Fairbanks, for Appellant.  Susan M. West, Assistant Attorney  

                                                                              

                   General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                                                         

                   General, Juneau, for Appellee.  



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

                                        

                   Bolger, Justices.   



                   MAASSEN, Justice.  



I.       INTRODUCTION  



                   Charles Kemp attempted suicide while in administrative segregation at the  

                                                                                                  



Anchorage Correctional Complex.  He survived but suffered a serious brain injury.  His  

                                                                                      



mother, Marjorie Achman, sued the Alaska Department of Corrections (DOC), alleging  

                                                                                   



both a negligent failure to protect Kemp from self-harm and medical malpractice.  The  

                                                                                                  


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

                                                                                                             

superior court granted summary judgment to DOC and awarded attorney's fees to DOC  



as the prevailing party.  Achman appeals; we affirm.  



II.       FACTS AND PROCEEDINGS  



          A.       Facts  



                                                

                   Charles Kemp was arrested for vehicle theft on January 13, 2008, and jailed  



                                                                  

at the Anchorage Correctional Complex.  He initially gave a false name, but DOC soon  



identified  him  through  his  fingerprints  and  discovered  that  he  was  in  violation  of  



conditions of his parole.  He was retained at the jail.  



                                                                                                       

                   On  March  11  or  12,  Kemp  was  sent  to  administrative  segregation  for  



                                                                                                           

fighting with another inmate.   On March 29, while still in segregation, he attempted  



                                                                                       

suicide.  Corrections officers found him unconscious in his cell.  They performed CPR  



until  emergency  medical  personnel  arrived  and  transported  him  to  Alaska  Regional  



Hospital, where he was diagnosed with an anoxic brain injury.  



                                                                                      

                   Kemp remained in the hospital until April 15, when he was discharged and  



                                   

returned to the medical segregation unit at the Anchorage Correctional Complex.  DOC  



Medical  Director  Dr.  Rebecca  Bingham  discussed  Kemp's  case  with  his  treating  



                        

physician, then authorized further evaluations and therapy.  DOC also assigned Kemp  



a 24-hour caregiver.  



                   On  May  2,  Kemp  was  returned  to  the  general  population,  though  he  



continued to have the assistance of the 24-hour caregiver.  On May 8 he was returned to  



                                                                                                                

administrative segregation after he stuck his finger in another inmate's food and acted  



                                             

aggressively.  He claimed not to remember these events when interviewed the next day  



by a mental health clinician; the clinician recommended that Kemp be moved to the  



mental health unit, and he was.  



                                                            - 2 -                                                     6909
  


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

                    Kemp was released from DOC custody on bail on May 16, 2008.  He now  



lives with his mother and stepfather in White Plains, Missouri.  Because of his brain  



injury, he cannot live independently.  



          B.        Proceedings  



                    Kemp's mother, Marjorie Achman, sued the State of Alaska, alleging that  

                                                                         



DOC was negligent in failing to protect Kemp from self-harm and in failing to provide   



necessary medical care after his suicide attempt.  DOC moved for summary judgment.  

                                                                          



It presented evidence, including the affidavits of two DOC physicians, that Kemp's  



                                                                             

suicide attempt was not reasonably foreseeable and that DOC provided proper medical  



care after Kemp's discharge from the hospital.  Achman's initial opposition presented  



no evidence but simply argued that negligence actions generally are not susceptible to  



                                                                                                            

summary judgment; she predicted that "specific facts will be revealed that will show that  



there is a genuine issue for trial."  In a supplemental opposition, however, Achman  



                                              

presented the affidavit of Jeff Eiser, an expert in "contemporary corrections industry  



                                                               

standards and practices," and an affidavit and excerpts from the deposition of Dr. Carl  



Orfuss,  a  physician  who  had  also  been  retained  as  an  expert.    The  supplemental  



                                                                                                           

opposition asserted that there were genuine issues of material fact as to whether DOC  



had  violated  its  own  policies  requiring  at  least  daily  medical  visits  to  prisoners  in  



segregation, whether Kemp had received adequate mental health screening before his  



                                                                                                

suicide attempt, and whether he had received adequate medical care afterwards.  In a  



                               

supplemental reply, DOC presented an affidavit from the jail's nursing supervisor, who  



                                                                                 

attested that Kemp had received medical visits at least twice daily while in segregation.  



                    The superior court granted DOC's motion for summary judgment.  Achman  



                       

filed a motion  for reconsideration, which the superior court denied.  The court then  



                                                                                 

awarded DOC, as the prevailing party, $24,297.49 in attorney's fees and $6,539.74 in  



                                                             - 3 -                                                      6909
  


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

costs but stayed the judgment pending appeal.  Achman appeals the grant of summary  



judgment and the award of attorney's fees.  



III.      STANDARDS OF REVIEW  

                    "We review a grant of summary judgment de novo."1  "We review the facts  



                                                

in the light most favorable to the non-moving party and draw all factual inferences in the  



                                        2  

non-moving party's favor."   We will affirm a grant of summary judgment "when there  



                                                                                                       

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



                                           3  

judgment as a matter of law."    



                                                                                                                      4 

                    We review an award of Rule 82 attorney's fees for abuse of discretion.   An  

                                         



abuse of discretion exists if the award "is arbitrary, capricious, manifestly unreasonable  

or the result of an improper motive."5  



IV.       DISCUSSION  



                   A party is entitled to summary judgment "if the pleadings, depositions,  

                                 



answers to interrogatories, and admissions on file, together with the affidavits, show that  

                                                                         



there  is  no  genuine  issue  as  to  any  material  fact  and  that  any  party  is  entitled  to  a  



          1        Kalenka v. Jadon, Inc. , 305 P.3d 346, 349 (Alaska 2013) (citing                            Fraternal  



Order of Eagles v. City & Borough of Juneau, 254 P.3d 348, 352 (Alaska 2011)).  



          2        Id. (citing Fraternal Order of Eagles , 254 P.3d at 352).  



          3        Id. (quoting Fraternal Order of Eagles , 254 P.3d at 352) (internal quotation  



marks omitted).  



          4         Weilbacher  v.  Ring,  296  P.3d  32,  37  (Alaska  2013)  (citing Hopper  v.  



Hopper , 171 P.3d 124, 129 (Alaska 2007)).  



          5        Id. (quoting Hughes v. Foster Wheeler Co. , 932 P.2d 784, 793 (Alaska  



 1997)) (internal quotation marks omitted).  



                                                            - 4 -                                                     6909
  


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

                                                6  

judgment as a matter of law."    The moving party "has the burden of showing that there   



is an absence of a factual dispute on a material fact and that this absence of a dispute       



                                                                                             7  

constitutes a failure of proof on an essential element."   Once the moving party has  



                                                      

presented a prima facie case, the non-moving party "must set forth specific facts showing  



that admissible evidence could be produced that reasonably tends to dispute or contradict  



                                                             

the moving party's evidence in order to demonstrate the existence of a dispute of material  

fact."8  



                                                                                                                                      

           A.	        There Is No Genuine Issue Of Material Fact As To Whether DOC  

                      Reasonably Should Have Foreseen Kemp's Suicide Attempt.  



                      Jailers  owe  their  prisoners  a  duty  "to  exercise  reasonable  care  for  the  



protection of [the prisoners'] lives and health," which "encompasses a duty to prevent  



                                                                                    9  

                                                                                                                                  

self-inflicted harm that is reasonably foreseeable."   The "jailer must exercise a higher  



degree  of  care  when  the  jailer  knows  or  reasonably  should  have  foreseen  that  the  

prisoner was incapacitated, suicidal, or otherwise in danger."10  



                                                                                                       

                      In support of its motion for summary judgment, DOC presented evidence  



that Kemp's attempted suicide was not reasonably foreseeable.  Dr. Bingham, DOC's  



clinical director, testified by affidavit that she had reviewed Kemp's "DOC medical  



                        

records from January 2008 through May 16, 2008, when he was released from DOC  



           6          Alaska R. Civ. P. 56(c).  



           7          Greywolf  v.  Carroll,  151  P.3d  1234,  1241  (Alaska  2007)  (citations  



omitted).  



           8          Id.  



           9          Joseph v. State , 26 P.3d 459, 466-67 (Alaska 2001) (citations omitted).  



           10         State, Dep't of Corr. v. Johnson , 2 P.3d 56, 60 (Alaska 2000) (internal  



quotation marks omitted).  



                                                                    - 5 -	                                                             6909
  


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

                                  

custody," and that based on that review she concluded:  (1) that Kemp's initial screening  



                                                                                                                                           

for suicide risk at the time he was booked into jail showed no sign that he was "likely to  



                             

harm himself"; (2) that prior to his suicide attempt "[t]here were no signals of clinical  



depression or psychosis"; (3) that Kemp "did not request mental health counseling"  



                                                                                                                                         

while in jail; and (4) that nothing in Kemp's file "suggests that he should have been  



                                                                           

monitored as a suicide risk."  On appeal, Achman points to two categories of evidence  



                             

that she claims raise a genuine issue of material fact:  (1) Kemp's medical and DOC  



records preceding his 2008 incarceration, and (2) Kemp's possession of several books,  



including the Bible and a novel.  



                        1.          DOC records  



                        Achman argues that DOC should have reasonably foreseen Kemp's suicide  



                                    

attempt because he had been diagnosed with suicidal ideation between 1995 and 2001.  



                                                                                              

In support of this argument, however, Achman cites only to the report of her expert, Dr.  



                                                                                                                           

Orfuss,  and  his  review  of  Kemp's  medical  history.    There  is  no  evidence  that  the  



                                                                    

particular medical records on which  Dr. Orfuss relies were, or should have been, in  



               

DOC's possession at the time of Kemp's attempted suicide, nor does Achman explain  



                                                                                                                              11  

why DOC should otherwise have been aware of that earlier diagnosis.                                                                



                        Achman also asserts that her son wrote a letter to the DOC parole board in  

                                                                                    



2005,  three  years  before  the  events  at  issue  here,  in  which  he  talked  about  having  

                                                                                                                



contemplated suicide.  But the documents supporting this assertion were never actually  



                                                                                            

presented to the superior court and are not now in the record, and we therefore cannot  



            11          At oral argument on the summary judgment motion, Achman's attorney   



conceded that Dr. Orfuss had not reviewed DOC's medical records, which would have                                          

shown what DOC knew or should have known about Kemp's mental health.                                                                    Dr. Orfuss  

did  not  reach  any  other  conclusions  regarding  the  foreseeability  of  Kemp's  suicide  

attempt.  



                                                                          - 6 -                                                                   6909
  


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

 consider them.12  Indeed, Achman did not present an argument based on her son's earlier  



                                                                                                                                                                        

history with DOC until she filed a motion for reconsideration following the entry of  



                      

 summary judgment, when she quoted from the letter to the parole board but did not  



                                                                                                                                  

 submit  the  letter  itself.    Even  had  the  superior  court  been  required  to  consider  new  

 evidence on reconsideration (which it was not),13 the unsupported factual assertion in  



Achman's  motion  for  reconsideration  was  not  enough  to  create  a  genuine  issue  of  

material fact that could defeat summary judgment.14  



               12            "The record on appeal consists of the entire trial court file, including the   



 original papers and exhibits filed in the trial court, the electronic record of proceedings     

before the trial court, and transcripts, if any, of the trial court proceedings." Alaska R.     

App. P. 210(a).  "Material never presented to the trial court may not be added to the  

record on appeal."  Id.  



               13            Koller v. Reft , 71 P.3d 800, 805 n.10 (Alaska 2003) (citing Dunn v. Dunn ,  



                                                                                                                   

 952 P.2d 268, 271 n.2 (Alaska 1998)) (noting that it is not appropriate to submit new  

                                                                                         

 evidence on a motion for reconsideration, and this court therefore does not consider such  

 evidence  on  appeal); Magden  v.  Alaska  USA  Fed.  Credit  Union ,  36  P.3d  659,  663  

 (Alaska 2001) (citing Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth. ,  

                                                           

 895 P.2d 497, 506 (Alaska 1995)) (observing that Rule 77(k) cannot "be used as a means  

                                                                                                                                                                         

to seek an extension of time for the presentation of additional evidence on the merits of  

                                                                                                                                                         

the claim").   



               14  

                                                                                                                                                         

                             "We . . . do not rely on unsupported assertions of fact in memoranda for  

                                                                                                                               

purposes of our review of summary judgment."  Peterson v. State, Dep't of Natural Res. ,  

                                                                                                                                                                       

 236 P.3d 355, 363 n.15 (Alaska 2010); see also Brock v. Rogers & Babler, Inc., 536 P.2d  

 778,  783  (Alaska  1975)  ("Assertions  of  fact  in  pleadings  and  memoranda  are  not  

 admissib[le]  evidence  and  cannot  be  relied  upon  for  the  purposes  of  summary  

judgment.").  



                                                                                        - 7 -                                                                                  6909
  


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

                   2.	      Books  



                   Achman argues that Kemp's possession of several books, including the  

                                                             15 "should have led [DOC] to be concerned  

Bible and the novel A Lesson Before Dying ,  



                                      

about Mr. Kemp's mental state while in administrative segregation."  The superior court  



rejected this argument because Achman did not present expert or other evidence "that  



                                                                                         

possession of those books somehow foreshadows suicide."  We must draw all reasonable  



                                                                                          16 

                                                                                             but Achman fails to  

inferences from the evidence in favor of the non-moving party, 



                      

explain why a risk of suicide is a reasonable inference to be drawn from the possession  



of these two books, and the reasonableness of such an inference is not apparent.  



                                                                                              

          B.	      There Is No Genuine Issue Of Material Fact As To Whether DOC  

                   Negligently Failed To Follow Its Own Policies.  



                            

                   DOC Policy 807.02(VII)(E)(1) states that "[a] health care staff member  



                                  

shall visit segregation  units at least daily during routine rounds or while dispensing  



                                  

medication."  Achman argues that DOC was negligent because it failed to follow this  

policy.17  



          15       A Lesson Before Dying is a popular, prize-winning novel about confronting  



racial injustice in 1940s Louisiana.  See Michael Swindle, Louisiana Justice , L.A. T 

                                                                                                                  IMES ,  

May  30,  1993,  http://articles.latimes.com/1993-05-30/books/bk-41358_1_louisiana- 

justice (reviewing E RNEST J. GAINES , A LESSON BEFORE DYING (1993)).  Achman does  

                                                                                          



not  address  the  novel's  content  or  explain  why  its  possession  should  have  caused  

concern; she apparently seeks an inference of mental instability based solely on the  

               

book's title.  



          16       Kalenka v. Jadon, Inc. , 305 P.3d 346, 350 (Alaska 2013); Alakayak  v.  



British Columbia Packers, Ltd. , 48 P.3d 432, 449 (Alaska 2002).  



          17       Achman's jail operations expert, Jeff Eiser, opined, among other things, that  



DOC was negligent because its policies do not comply with the American Correctional  

                                                                   

Association Performance-Based Standards for Adult Local Detention Facilities.  Achman  

does not, however, pursue this argument on appeal.  



                                                          - 8 -	                                                     6909  


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

                                                                                                                              

                      The evidence related to this issue included segregation logs, health care  



progress  notes,  and  the  affidavit  of  Cheryl  Vargo,  the  nursing  supervisor  at  the  



                                                            18  

Anchorage  Correctional  Complex.                                 Vargo  attested  in  her  affidavit  that  she  had  



                                                                                     

"reviewed the [DOC] medical records pertaining to Charles Kemp's incarceration in  



            

2008, including  his  nursing  and  pharmaceutical  records,"  and  from  this  review  had  



                   

concluded that "Mr. Kemp was personally visited at least twice a day in his cell by a  



nurse" while he was in segregation.  



                      Achman challenges Vargo's testimony by pointing to a six-day gap in the  



                                                                                                       

health  care  progress  notes  between  March  23  and  March  29,  the  day  of  Kemp's  



                                                                                                        

attempted suicide.  DOC Policy 807.02(VII)(E)(3) states that "[h]ealth care staff shall  



                                                                                                                                       

record all segregation visits  in the Segregation Log and all health care actions in the  



                                                                                                             

appropriate medical record." (Emphasis added.)  The segregation logs do in fact support  



                                                                                          

the statement in Vargo's affidavit that Kemp received two or three medical visits nearly  



                                                        19  

every day he was in segregation.                            The health care progress notes on which Achman  



relies do not purport to be a daily log, and no witness testified that they should be so  



                                                                                                                                             20  

                                                                             

construed.  Again, Achman's argument alone is not enough to create an issue of fact. 



    



           18         The segregation logs and health care progress notes do not appear to have                                      



been authenticated in the trial court, but their authenticity is not challenged on appeal,   

and both parties rely on them.  



           19  

                                                                                                                      

                      The segregation log for March 20, 2008, lacks a signature in the section for  

                              

medical visitors. Kemp's health care progress note for that date, however, shows a "Med  

                                               

Review" and a prescription for "Naproxen 250 mg."  The records thus support Vargo's  

affidavit testimony, and no evidence contradicts it.  



           20         Peterson v. State, Dep't of Natural Res. , 236 P.3d 355, 363 n.15 (Alaska  



2010); Brock v. Rogers & Babler, Inc., 536 P.2d 778, 783 (Alaska 1975).  



                                                                     - 9 -                                                             6909
  


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

                                                                                                   

           C.	        The Superior Court Did Not Err In Granting Summary Judgment On  

                      The Medical Malpractice Claim.  



                                                                                  

                     Achman alleged in her complaint that DOC "failed to provide the necessary  



                                                                                   

medical  treatment  Mr.  Kemp  needed  after  being  discharged  from  Alaska  Regional  



                                                                 

Hospital."    In  an  action  for  medical  negligence,  the  plaintiff  has  the  burden  of  



establishing the degree of care ordinarily exercised under the circumstances by health  



                             

care providers in the defendant's field or speciality, that the defendant failed to exercise  



this  degree  of  care,  and  that  the  defendant's  failure  to  exercise  this  degree  of  care  



                                                                       21  

                                                                                                                         

proximately  caused  the  plaintiff's  injuries.                             Ordinarily,  the  plaintiff  is  required  to  



                                                                    

present expert testimony in support of the claim that the defendant failed to exercise the  

required degree of care.22  



                                                  

                      DOC  supported   its  motion  for  summary  judgment  on  the  medical  



malpractice claim with the affidavits of its clinical director, Dr. Bingham, and its medical  



                                                                                                                   

director, Dr. Henry Luban, both of whom described the medical care Kemp received  



following  his  discharge  from  the  hospital,  asserted  that  the  medical  care  met  the  



                                                                                                                      

appropriate  standard  of  care,  and  concluded  that  Kemp's  injuries,  though  very  



unfortunate, were not the result of medical neglect.   



                                                                                                         

                      In her opposition, Achman presented the affidavit of her expert, Dr. Orfuss.  



                                                                                                       

Dr. Orfuss opined that Kemp, following his hospital discharge, had "obvious cognitive  



                                                                                                                      

and physical deficits from his anoxic brain injury" and "was not able to walk, talk, or  



                                                        

feed himself."  Dr. Orfuss was of the opinion that Kemp "needed constant supervision  



           21        AS 09.55.540(a).  



           22        Hertz v. Beach , 211 P.3d 668, 680 (Alaska 2009);                              see also  Midgett v. Cook  



Inlet Pre-Trial Facility , 53 P.3d 1105, 1115 (Alaska 2002) (citing                                      Kendall v. State, Div.  

of Corr., 692 P.2d 953, 955 (Alaska 1984)) ("We have held that, where negligence is not       

evident to lay people, the plaintiff in a medical malpractice action must present expert  

testimony to establish the claim.").  



                                                                 -  10 -	                                                          6909
  


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

and was at risk for hurting himself and others," and that he "should have been placed in         



the medical ward for ongoing treatment and medical care."  Based on the information he  



                                                                                            

had reviewed, Dr. Orfuss concluded that DOC breached the duty to provide this care and  



                                                                                                                  

generally "failed to provide adequate medical attention to Mr. Kemp after his attempted  



suicide."   



                                                                                                                      

                    As  the  superior  court  noted,  "[o]rdinarily,  such  an  affidavit  would  be  



                                                                        

sufficient to create a question of material fact to survive summary judgment."  But Dr.  



Orfuss's opinion about the level of DOC's medical care was based on his belief that  



"[u]pon Mr. Kemp's return to [the Anchorage jail], he was housed in general population  



                                                                                                                      

and not in the medical ward."   Dr. Orfuss also testified at his deposition that Kemp had  



received no rehabilitation services.  But these factual assumptions were mistaken, as  



DOC's records indisputably showed.  According to the records, Kemp was placed in  



                                                                                                  

medical segregation upon his hospital discharge and kept there until May 2; during this  



                                                                                                  

time he was evaluated for occupational, speech, and physical therapy and attended a  



                                                                                         

number of sessions; when he was returned to the general population he was assigned a  



24-hour caregiver; he remained in the general population until May 8, when he was  



placed in administrative segregation because of behavioral issues; and a day later he was  



                                                                                           

returned to the mental health unit in medical segregation, where he remained until his  



release on May 16.   



                                                                                                          

                     Dr. Orfuss's opinion that Kemp "was housed in general population and not  



                                               

in the medical ward" upon his hospital discharge was based not on the DOC records but  



                                                                                                                    

rather, as he explained in his deposition, on the allegations of the complaint.  Counsel for  



                                                                                                

Achman conceded at the summary judgment hearing that Dr. Orfuss had not reviewed  



Kemp's  DOC  medical  records  at  the  time  he  formed  his  opinions,  and  the  attorney  



conceded that Kemp had in fact been returned to the medical ward upon his discharge  



                               

from the hospital.   The superior court asked, "So the expert opinion that you offer is  



                                                              -  11 -                                                        6909
  


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

based on undisputedly mistaken facts?"  Achman's counsel conceded this to be true.  



                                                                      

Because Dr. Orfuss's opinion lacked a sufficient foundation in the facts of the case, the  



superior court found that it was inadequate to "reasonably contradict the State's evidence  



that Kemp received proper medical care."   



                                                                                          

                   Affidavits submitted on summary judgment "must be based upon personal  



knowledge, set forth facts that would be admissible evidence at trial and affirmatively  



                                                                                                 23  

show  that  the  affiant  is  competent  to  testify  to  the  matters  stated."                       "Specifically,  



opinion  testimony  and  hearsay  statements  that  would  be  inadmissible  at  trial  are  



                                                                      24  

                                                                          Expert opinions are admissible at  

inadmissible in a motion for summary judgment." 



                                                                                        

trial only if they will "assist the trier of fact to understand the evidence or to determine  

                     25  An expert's opinion does not need to be based on otherwise admissible  

a fact in issue."                                            



evidence, but the facts or data "must be of a type reasonably relied upon by experts in  

                                     

the particular field in forming opinions or inferences upon the subject."26  



                   Dr. Orfuss's opinion that DOC failed to meet the applicable standard of  

                                                                                                          



medical care plainly misunderstood what Kemp's medical care had actually been.  An  



expert opinion that is not based on the actual facts of the case is unlikely to assist the trier  



                                                                                                    

of fact to understand the evidence or determine a fact in issue, as is  required for its  



admissibility underAlaska Evidence Rule 703.  Like the superior court, therefore, we  



         23        Kelly  v.  Municipality  of  Anchorage ,  270  P.3d  801,  804  (Alaska  2012)  



(quoting  Broderick  v.  King's  Way  Assembly  of  God  Church ,   808   P.2d   1211,  1215  

(Alaska 1991)) (internal quotation marks omitted).  



         24        Broderick , 808 P.2d at 1215.  



         25        Alaska R. Evid. 702(a).  



         26        Alaska R. Evid. 703.  



                                                         - 12 -                                                   6909
  


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

                                                                

conclude that Dr. Orfuss's affidavit was insufficient to create a genuine issue of material  



       27  

fact.        



                                                                     

                     On appeal, Achman attempts to recast Dr. Orfuss's opinion as supporting  



                                     

a  claim  that  Kemp's  return  to  the  general  population,  even  if  it  did  not  happen  



immediately upon his discharge from the hospital, was still too soon.   But Dr. Orfuss's  



                                                                                            

report, his affidavit, and his later deposition testimony all confirm his mistaken factual  



                                                                                                         28  

                                                                                                             It may be that Dr.  

assumption that Kemp had never been housed in the medical ward. 



                                                                                                                              

Orfuss found DOC's medical care to be inadequate even after having learned what it  



                               

was, as Achman's counsel advised the trial court during oral argument.  But an expert  



                                                                                                                

opinion in support of the plaintiff's position - and based on the actual facts of the case  



- does not appear in the record.  



                     Achman's medical malpractice claim fails for another reason:  she failed  



to demonstrate a genuine issue of material fact regarding causation.  Achman claims that  



causation  is  shown  by  evidence  that  (1)  following  his  suicide  attempt  Kemp  was  



                                                                                                     

eventually returned to the general population at the Anchorage Correctional Complex,  



                                                                                            

(2) while there he engaged in inappropriate behavior, and (3) he had to be reassigned to  



           27        See   Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 130 (Tex. App. 2001)   



(quoting Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995)) ("When                

an  expert's  opinion   is  based  on  assumed  facts  that  vary  materially  from  the  actual,  

undisputed facts, the opinion is without probative value and cannot support a verdict or                               

judgment.");  Rothweiler v. Clark Cnty., 29 P.3d 758, 763 (Wash. App. 2001) ("In the  

context of a summary judgment motion, an expert must support his opinion with specific  

                                   

facts, and a court will disregard expert opinions where the factual basis for the opinion  

is found to be inadequate.").  



           28  

                                                                                                       

                     In fact, Dr. Orfuss testified that Kemp should never have been returned to  

                                                                                                       

jail at all, a position that Achman declines to endorse on appeal.  DOC was required to  

                                      

keep Kemp in custody; following his suicide attempt, the district court issued successive  

orders for Kemp to be held on $2,500 bail.  



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the mental health ward.   It is true that these facts are undisputed.  But Achman presented  



                                             

no evidence tending to show that Kemp's behavioral problems and consequent return to  



                                                                                            

the mental health ward were due to medical malpractice.  As the superior court correctly  

                                                                29 "opined that Kemp's damages were in any  

found, none of Achman's expert witnesses                                                



way aggravated by negligent medical care following [Kemp's] return to DOC custody,"  

                              



and DOC was entitled to summary judgment on this ground as well.  



          E.	       The Superior Court Did Not Abuse Its Discretion In Its Attorney's  

                    Fees Award.  



                    In support of its motion for Rule 82 attorney's fees, the State asserted that  



it had incurred actual reasonable fees of $121,487.44.  The superior court awarded the  

                                                               



State 20% of that amount pursuant to Rule 82(b)(2).  Achman contends that the award  

                                                                                  



was excessive because the court should have applied the discretionary factors of Rule  

                                                              



82(b)(3)   -   particularly   "other   equitable   factors   deemed   relevant"   under   Rule  



                                                                                               

82(b)(3)(K) - given Kemp's disability and lack of income.  However, attorney's fee  



                                                      

"[a]wards  made  pursuant  to  the  schedule  of  Civil  Rule  82(b)  are  presumptively  



             30	                                                                   31 

correct,"        and the (b)(3) adjustments are discretionary.    There is nothing in the record  



from  which  we  could  conclude  that  the  superior  court  was  arbitrary,  capricious,  or  



          29        In addition to Dr. Orfuss, Achman presented the opinion of Carl Gann, an     



expert  in  rehabilitation  counseling  and  life-care  planning.    Gann  discussed  Kemp's  

damages but did not opine on causation.  



          30         Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010).  



          31        Id. (citing McGlothlin v. Municipality of Anchorage , 991 P.2d 1273, 1277  



(Alaska 1999)).  



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manifestly unreasonable when it awarded attorney's fees  pursuant to the schedule and  

declined to apply the discretionary factors of Rule 82(b)(3).32  



V.       CONCLUSION  



                  For the foregoing reasons we AFFIRM the judgment of the superior court.  

                              



         32       See  Weilbacher v. Ring, 296 P.3d 32, 37 (Alaska 2013).  

                         



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