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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hagen v. Strobel (7/10/2015) sp-7018

Hagen v. Strobel (7/10/2015) sp-7018

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

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

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

                                                                                   

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



SHIRLEY HAGEN, Wife and Personal                         )  

Representative for the Estate of                         )    Supreme Court No. S-15479  

GREGORY HAGEN,                                           )  

                                                         )    Superior Court No. 3AN-11-12832 CI  

                           Appellant,                    )  

                                                         )    O P I N I O N  

         v.                                              )  

                                                         )    No. 7018 - July 10, 2015  

GUNNAR STROBEL, M.D. and                                 )
  

ALAN E. SKOLNICK, M.D.,                                  )
  

                                                         )
  

                           Appellees.                    )
  

                                                         )
  



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

                  Judicial District, Anchorage, Patrick J. McKay, Judge.  



                  Appearances:    James  Alan  Wendt,  Law  Offices  of  James  

                  Alan Wendt, Anchorage, for Appellant.  Timothy J. Lamb,  

                  Donna M. Meyers, and Whitney L . Traeger, Delaney Wiles,  

                                                                  

                  Inc., Anchorage, for  Appellees.  



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

                              

                  Bolger, Justices.  



                  BOLGER, Justice.  



I.       INTRODUCTION  



                  A cardiologist performed pacemaker surgery on Gregory Hagen and then  



ordered  an  x-ray  to  examine  the  placement  of  the  pacemaker  leads  and  check  for  

            

                                                                                                


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

complications.  A second cardiologist reviewed the x-ray and discharged Gregory from  



the  hospital.    A  radiologist  also  reviewed  the  x-ray,  noted  a  potential  "nodule"  in  



Gregory's lung, and recommended follow-up x-rays.  But these recommendations were  

                                                                                



never relayed to Gregory, who died from lung cancer approximately two years later.   



                                                                 1 

                    Gregory's wife, Shirley Hagen,  filed a medical negligence suit against the 

                                                                    



two cardiologists, alleging that their failure to relay the radiologist's recommendations  

                                               



resulted in a lost chance of survival for Gregory.  The superior court granted summary  

                                                                          



judgment to the cardiologists on the grounds that expert testimony from a board-certified  

                                                



cardiologist was required to establish the standard of care and that the Estate had failed  

                                                                                     



to identify such an expert.  In this appeal, the Estate argues that there is a genuine issue  

                                                              



of  material  fact  whether  the  cardiologist  who  ordered  the  x-ray  later  received  the  



                                        

radiologist's report.   But the Estate does not show how this issue is material to the  



superior court's decision regarding the necessity of expert testimony to establish the  



standard of care.  We therefore affirm.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  

                                                                                                    2  cardiologist with  

                    In November 2007 Dr. Gunnar Strobel, a board-certified 



the Alaska Heart Institute in Anchorage, implanted a pacemaker in Gregory Hagen at  



Mat-Su Regional Medical Center in Palmer.  The following day Dr. Strobel ordered an  

                                                                  



x-ray to examine the "positioning of the pacemaker leads" and check for "implantation  

                                                                             



          1         Hereinafter, we refer to Shirley Hagen in her capacities as Gregory Hagen's  



wife  and  personal  representative  for  Gregory's  estate  as  "the  Estate."    We  refer  to  

                             

Gregory and Shirley Hagen individually by their first names where context requires.  



          2         Hereinafter,  we  use  "board-certified"  as  synonymous  with  meeting  the  



requirement of AS 09.20.185(a)(3):  "certified by a board recognized by the state as  

having acknowledged expertise and training directly related to the particular field or  

                                   

matter at issue."  



                                                             -2-                                                       7018
  


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

complications."  He then returned to Anchorage.  Dr. Alan Skolnick, another board- 



certified cardiologist, reviewed the x-ray for complications and dictated a discharge  



report.  Gregory was then discharged from the hospital.  



                     A radiologist also reviewed the x-ray and dictated a report (the Radiologist  



Report).   In addition to noting the placement of the pacemaker leads, the Radiologist             



Report observed:  



                                                                                                   

                     A 1 cm density projects in the right upper lobe.  It is seen in  

                            

                     the second anterior interspace near the intersection with the  

                     fourth posterior rib space.  The possibility of the nodule is  

                     raised.  When the patient's condition permits, PA, shallow  

                     obliques, lateral[,] and apical lordotic views are suggested for  

                                                    

                     further evaluation.  



And under the heading "Impression," the Radiologist Report noted: "Equivocal for right                                       



upper  lobe  nodule.    Recommend  followup  with  PA,  lateral,  obliques[,]  and  apical  



lordotic when the patient's condition stabilizes."  



                     In  March  2008  Gregory  saw  Dr.  Strobel  for  a  follow-up  appointment.  



                                                                                          

According to Dr. Strobel, the purpose of the visit was to "check the pacemaker, discuss  



                                                                                                                            

the chest pain [Gregory] had experienced in December 2007, and [discuss] the results of  



                                                                                  

[the] December nuclear stress test [that followed]." The parties agree that Gregory never  



received   any   information   about   the   contents   of   the   Radiologist   Report   or   the  



recommendation for further x-rays.  



                     Over one year later, Gregory was diagnosed with "poorly differentiated  



                                                                                                       

non-small cell carcinoma," a form of lung cancer.  This cancer resulted in Gregory's  



death in December 2009.  



                                                                  -3-                                                            7018
  


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

           B.        Proceedings  



                     In December 2011 the Estate filed a wrongful death and survival action  



                                                                                                              3  

                                                                                                                  In its complaint  

against Dr. Strobel and Dr. Skolnick (collectively, the cardiologists).  



                                          

the Estate alleged that the Radiologist Report "included reference to a nodule that would  



                  

have been diagnosed as early stage lung cancer had further studies been administered."  



                                                                                                           

The Estate claimed that the cardiologists failed to meet prevailing standards of medical  



care, resulting in a lost chance of survival for Gregory.  



                     The superior court entered a pretrial order requiring the parties to identify  



                          

retained expert witnesses by September 2, 2013.  In an email to opposing counsel, the  



                                                                               

Estate's attorney identified an oncologist whom the Estate planned to call as an expert,  



but  the  Estate  never  filed  a  list  of  retained  expert  witnesses.    On  October  4  the  



cardiologists filed an unopposed motion to preclude the Estate from calling any experts  



other than the oncologist.  The court granted this motion.  



                                                                                    

                     The cardiologists then filed a motion for summary judgment, supported  



                                                                                                           

primarily by an affidavit from Dr. Strobel. Dr. Strobel attested that in his expert opinion,  



                                                                           

the cardiologists "met the appropriate standard of care" throughout Gregory's treatment.  



Dr. Strobel further opined that he "did not have a duty to go back through the entire  



                                                                                                 

chart, and check all other care providers['] medical records" when Gregory returned for  



his follow-up visit.  



                                                               

                     In their memorandum in support of summary judgment, the cardiologists  



pointed  to  our  statement  in  Trombley  v.  Starr-Wood  Cardiac  Group,  PC  that  "[i]n  



medical malpractice actions . . . the jury ordinarily may find a breach of professional duty  



           3         The Estate also named the radiologist who reviewed Gregory's x-rays and     



a family physician who had referred Gregory to Dr. Strobel.  But both doctors were   

subsequently dismissed from the suit.  



                                                                   -4-                                                             7018
  


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

                                                                        4  

only   on   the   basis   of   expert   testimony."       The   cardiologists   also   highlighted  



AS  09.20.185(a),  which  provides  that  in  a  professional  negligence  case,  an  expert  



                           

testifying on the "appropriate standard of care" must be board-certified and "trained and  



                                                                                                                          

experienced in the same discipline or school of practice as the defendant or in an area  



                               

directly related to  a matter at issue."  Accordingly, the cardiologists argued that the  



Estate was required to identify "a board certified cardiologist who would testify that [the  



cardiologists'] medical care and treatment fell below the standard of care."  



                                                                                             

                     The Estate had identified no such expert and was precluded from doing so  



                                                                                                              

by the superior court's prior order.  And the Estate did not oppose the cardiologists'  



motion  for  summary  judgment  or  submit  additional  evidence.    The  superior  court,  



                                                                                  

concluding that the Estate was required to identify a board-certified cardiologist to rebut  



                                                             

Dr. Strobel's sworn affidavit, granted summary judgment and dismissed the suit against  



the cardiologists with prejudice.  



                                                      

                     The  Estate  moved  for  reconsideration,  contending  that  the  court  had  



"overlooked  a  material  fact  or  misconceived  a  material  question."    Specifically,  the  



Estate argued that the cardiologists' factual account was internally inconsistent:  the  



                                                                                                                     

cardiologists initially admitted in their answer that the Radiologist Report was provided  



     

to Dr. Strobel, but Dr. Strobel later claimed in his deposition testimony that he never  



                                                         

received it.  The Estate also  filed  a  motion to amend the complaint, pointing to Dr.  



                                    

Strobel's statement in his deposition that he did not read the Radiologist Report because  



                                                         

an Alaska Heart Institute employee failed to place a copy in his inbox.  The Estate argued  



                                                                                   

that because the cardiologists failed to identify "all potentially responsible persons" as  



           4         3 P.3d 916, 919 (Alaska 2000) (second alteration in original)                                         (quoting  



Kendall v. State, Div. of Corr. , 692 P.2d 953, 955 (Alaska 1984)) (internal quotation  

marks omitted).  



                                                                  -5-                                                            7018
  


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

                                                                      5  

                                                                         

required under Alaska Civil Rule 26(a)(1)(H),                           it should be granted leave to amend its  



complaint to add allegations against Alaska Heart Institute.  



                                                                                                    

                    The  superior  court  denied  the  Estate's  motion  for  reconsideration  and  



                                                                                                       

entered final judgment in the cardiologists' favor.  The court did not rule on the Estate's  



motion to amend.  



III.      STANDARD OF REVIEW  



                                                       

                    "We review a grant of summary judgment de novo, affirming if the record  



                                                                                                           

presents no genuine issue of material fact and if the movant is entitled to judgment as a  



                      6  

                          "We must determine whether any genuine issue of material fact exists,  

matter of law." 



                                                                                                    

and in so doing all factual inferences must be drawn in favor of - and the facts must be  



                                                            

viewed in the light most favorable to - the party against whom summary judgment was  

granted."7  



                    "[A] party seeking summary judgment has the initial burden of proving,  

                                                                                                      



through admissible evidence, that there are no [genuine] disputed issues of material fact  

                                                                                     



          5         In relevant part, Rule 26(a)(1)(H) requires,  



                                                     

                    Except to the extent otherwise directed by order or rule, a  

                    party shall, without awaiting a discovery request, provide to  

                    other parties . . . the identity, with as much specificity as may  

                                                                

                    be known at the time, of all potentially responsible persons  

                                                                                 

                    . . . , and whether the party will choose to seek to allocate  

                    fault against each identified potentially responsible person.  



          6         Kelly  v.  Municipality  of  Anchorage ,  270  P.3d  801,  803  (Alaska  2012)  



(quoting Beegan v. State, Dep't of Transp. & Pub. Facilities , 195 P.3d 134, 138 (Alaska  

                                                                                            

2008)) (internal quotation marks omitted).  



          7         Id. (footnote omitted) (quoting Nielson v. Benton , 903 P.2d 1049, 1051-52  



                                                                                       

(Alaska  1995))  (citing  Rockstad  v.  Erikson ,  113  P.3d  1215,  1219  (Alaska  2005))  

(internal quotation marks omitted).  



                                                               -6-                                                         7018
  


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

                                                                                                   8 

and that the moving party is entitled to judgment as a matter of law."   "Once the moving  

                                                                                                      



party has made  that showing, the burden shifts to the non-moving party to set forth  

                                



specific facts showing that he could produce evidence reasonably tending to dispute or  

                                                                                  



contradict the  movant's  evidence  and  thus  demonstrate  that  a  material issue  of  fact  

                                                                                                              

exists."9  



IV.	      DISCUSSION  



          A.	       The  Superior  Court  Did  Not  Err  In  Granting  The  Cardiologists'  

                            

                    Motion For Summary Judgment.  



                    "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 . . . ."10  And in such actions, "the jury  

                                                                                       



ordinarily  may  find  a  breach  of  professional  duty  only  on  the  basis  of  expert  

testimony."11  



                    The cardiologists argued in their motion for summary judgment that the  

                                                                                                       



Estate would need to present expert testimony from a board-certified cardiologist to  

                                                                                                           



          8         Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 517 (Alaska 2014)   



(alterations in original) (quoting Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751,   

760 n.25 (Alaska 2008)) (internal quotation marks omitted).  



          9         Id. (quoting State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32  



(Alaska 1978)) (internal quotation marks omitted).  



          10        Achman v. State , 323 P.3d 1123, 1129 (Alaska 2014) (citing  



AS 09.55.540(a)).  



          11  

                                       

                    Trombley v. Starr-Wood Cardiac Grp., PC, 3 P.3d 916, 919 (Alaska 2000)  

(quoting Kendall v. State, Div. of Corr. , 692 P.2d 953, 955 (Alaska 1984)) (internal  

quotation marks omitted).  



                                                              -7-	                                                       7018
  


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

establish "that a breach of duty owed occurred."12  The superior court agreed, concluding  



that  



                   the  medical  issues  in  this  litigation  concerning  the  duties  

                   owed by cardiologist[s] Dr. Strobel and Dr. Skolnick relative  

                   to  the  care  they  provided  to  [Gregory]  are  beyond  the  

                                                                   

                   comprehension  of  lay  jurors,  and  therefore  they  require  

                   expert medical testimony from a board certified physician or  

                   physicians in the area or areas of specialty  at issue in this  

                                                                                         

                   case, which is cardiology.  



As  the  superior  court  noted,  the  cardiologists  submitted  an  affidavit  from  a  board- 

                                                                       



certified cardiologist, Dr. Strobel, while the Estate failed to similarly offer sworn expert  

                                                   



testimony  as  necessary  to  meet  its  burden  of  production.    The  court concluded  that  

                                                                                                         



summary judgment was therefore appropriate.  



                   We must first determine whether the cardiologists met their burden, as the  

                                                                          



moving parties, of showing that there was no genuine issue of material fact.  With respect  



to Dr. Skolnick, Dr. Strobel attested that in his opinion,  



                   Dr. Skolnick did not need to wait until after the radiologist's  

                                                                                    

                   typed report was available before authorizing the discharge  

                   of   [Gregory]   from   the   hospital.      The   purpose   of   Dr.  

                    Skolnick's viewing the x-ray was to check that the leads in  

                                                                



          12       Under AS 09.20.185(a) an expert witness testifying "[i]n an action based     



on professional negligence" must be:  



                             (1)  a professional who is licensed in this state or in  

                   another state or country;  



                             (2) trained and experienced in the same discipline or  

                    school  of  practice  as  the  defendant  or  in  an  area  directly  

                                                     

                   related to a matter at issue; and  



                             (3)  certified  by  a  board  recognized  by  the  state  as  

                   having acknowledged expertise and training directly related  

                                                                   

                   to the particular field or matter at issue.  



                                                             -8-                                                       7018
  


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

                   the   wall   of   the   heart   had   not   become   displaced,   that  

                    [Gregory] did not have a pneumothorax, etc.  It was not to do  

                                                                                                     

                    a  thorough  radiological  evaluation  of  [Gregory's]  overall  

                   health.  



Dr. Strobel further opined that Dr. Skolnick "met the appropriate standard of care as  



described in AS 09.55.540 . . . required of cardiologists in Alaska."  



                   As to his own actions, Dr. Strobel defined the appropriate standard of care  



by stating in his affidavit:  



                                                                      

                   It  is  .  .  .  my  expert  opinion  that  when  [Gregory]  returned  

                                                  

                    approximately [four and one-half] months after implantation  

                                                                                          

                    of a pacemaker . . . for a pacemaker check . . . , I did not have  

                                      

                    a duty to go back through the entire chart, and check all other  

                    care  providers[']  medical  records,  etc.    The  chest  x-ray  

                   review by Dr. Skolnick in November had already confirmed  

                   the pacemaker implantation did not have complications.  The  

                   purpose of that visit was to check the pacemaker, discuss the  

                                                                           

                    chest pain he had experienced in December 2007, and the  

                   results of that December nuclear stress test . . . .  



Dr. Strobel concluded that, like Dr. Skolnick, he "met the appropriate standard of care."  

                                                                                                                   



                   In light of these statements - which were not challenged by conflicting  

                                                                                          



expert testimony -  we conclude that the cardiologists met their burden as the moving  



parties by showing that there was no genuine issue of material fact as to the standard of  

                                                                           



care.    Thus  to  avoid  summary  judgment,  the  Estate  was  required  to  demonstrate  a  



genuine issue of material fact as to the appropriate standard of care - an element on  

                                                                                                               



                                                               13  

which the Estate bore the burden of proof.  

                                                                                                           

                                                                   But the Estate did not file an opposition  



                                                       

brief or submit additional evidence.  The superior court's grant of summary judgment  



was therefore appropriate.  



          13       See Achman, 323 P.3d at 1129 (citing AS 09.55.540(a)).  



                                                             -9-                                                          7018  


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

                     On appeal the Estate argues, as it did in its motion for reconsideration, that  

                                                                     



the cardiologists' narrative was inconsistent, and that this inconsistency created an issue  

                                                                                        



of material fact.  The Estate notes the cardiologists' admission in their answer that -  

                                                                                  



"[u]pon  information  and  belief"  -  "[a]  copy  of  the  x-ray  report  containing  [the  



                                                                                                

radiologist's] recommendation was provided to [Dr.] Strobel."  The Estate contrasts this  



admission  with  Dr.  Strobel's  subsequent  deposition  testimony  that,  although  the  



Radiologist Report "was scanned in at the Alaska Heart [Institute] [o]ffice," he never  



received a copy in his office "inbox."  



                                                                                                           

                     We see no inconsistency in these statements.  Critically, Dr. Strobel never  



                                                                                     

denied that he was "provided" the Radiologist Report; he merely testified that he never  



received a copy in his  office inbox.  And in the cardiologists' motion for summary  



                                                    

judgment, they admitted that "[a] copy of the radiology report was sent to Dr. Strobel at  



                                         

 [Alaska Heart Institute]."  (Emphasis added.)  Even "reading the record in the light most  



                                                                                                                                  14  

                                                                                                                    

favorable to the non-moving party and making all reasonable inferences in its favor," 



the fact that a copy of the Radiology Report was "sent" to Dr. Strobel and "scanned in"  

                                                                                                           



to the Alaska Heart Institute's electronic record-keeping system does not suggest that Dr.  

                               



 Strobel actually received it in his inbox.  And the Estate points to nothing else in the  



record giving rise to a genuine issue of fact.  



                     Moreover, "the existence of a disputed factual issue will only preclude  



                                                                         15  

summary  judgment  if  it  is  a  material  issue,"                          and  "[a]  factual  issue  will  not  be  

                                                                                                                          



considered material if, even assuming the factual situation to be as the non-moving party  

                                                                                             



contends, he or she would still not have a factual basis for a claim for relief against the  

                                                                                                            



           14       Bachner Co. v. Weed , 315 P.3d 1184, 1188 (Alaska 2013) (quoting Witt v.  



State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003)) (internal quotation marks  

                                                                                                           

omitted).  



           15        Sonneman v. State, 969 P.2d 632, 635 (Alaska 1998) (emphasis in original).  



                                                               -10-                                                         7018
  


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

                      16 

                                                                                                         

moving party."            Here the superior court granted summary judgment on the ground that  



expert  testimony  from  a  board-certified  cardiologist  was  required  to  establish  the  



                                                    

standard of care, and the Estate put forth no such expert.  On appeal, the Estate does not  



explain how Dr. Strobel's receipt of the Radiologist Report would have impacted this  



                              17  

determinative issue.              And the Estate points to nothing else in the record creating a  



material issue of fact as to the appropriate standard of care.  



          B.	      The Estate Waived Its Argument That The Superior Court Erred In  

                   Denying Its Motion For Reconsideration.  



                   The Estate appears to argue that the superior court should have granted its  



                                                                                                          

motion for reconsideration, asserting that the court erred by concluding that there was  



                                                                                     

no "evidence [relevant] to the summary judgment motion that the court should pause to  



                                                           

reconsider."  But the Estate gives only cursory treatment to this issue in the argument  



section of its opening brief and omitted the issue from the brief's statement of points on  



appeal.  



                                                                                              

                   "[W]here a point is given only a cursory statement in the argument portion  



                                                                               18  

                                                                                    We conclude that the Estate's  

of a brief, the point will not be considered on appeal."  



argument regarding its motion for reconsideration was waived for inadequate briefing.  



          16       Id. ; see also  Christensen v. Alaska Sales & Serv., Inc.                     , 335 P.3d 514, 519  



(Alaska 2014) ("[A] material fact is one upon which resolution of an issue turns.").  



          17       The Estate does argue that "[t]here clearly existed an issue [as to] whether  

                                                                       

[Dr.] Strobel had indeed been provided a copy of the report.  There is no issue that the  

failure to follow-up on such a report is improper as [Dr. Strobel] admitted as much in his  

deposition."  But Dr. Strobel did not admit that it would be "improper" not to examine  

                                                                       

a report he had received; he  merely stated that he would "normally" read these types of  

                 

reports.  



          18  

                    See Glover v. Ranney, 314 P.3d 535, 545 (Alaska 2013) (internal quotation  

marks omitted).  



                                                             -11-	                                                     7018
  


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

           C.	       The  Estate  Waived  Its  Argument   That  The  Superior  Court  Should  

                     Have Granted Its Motion to Amend The Complaint.  



                     The Estate argues that the superior court should have granted its motion to          



amend its complaint.  In requesting leave to amend, the Estate pointed to Dr. Strobel's  



                                                         

deposition testimony that an Alaska Heart Institute employee failed to place a copy of the  



Radiologist Report in his "inbox" and argued that the cardiologists failed to identify all  



                                                                                 

"potentially responsible persons" as required under Civil Rule 26(a)(1)(H).  Accordingly,  



                                                                          

the Estate asked to amend its complaint to add the Alaska Heart Institute as a defendant;  



                                                                                   

to add new allegations concerning the Alaska Heart Institute's alleged failure to deliver  



                                                               

a copy of the Radiologist Report to Dr. Strobel; and to add a negligence cause of action  



                                                                           

against the Alaska Heart Institute. Although the superior court denied the Estate's motion  



for reconsideration, it never ruled on its motion to amend.  



                                                                               

                     The  Estate  omitted  this  issue  from  its  statement  of  issues  presented  for  



                                      

review and discusses it only briefly in the argument portion of its brief, asserting that the  



                                                                                   

cardiologists violated Rule 26(a)(1)(H) and that this "prejudiced [the] [p]laintiffs."  But  



                                       

the Estate cites no legal authority for the implied proposition that the superior court was  



                                     

required to grant leave to amend even after granting summary judgment and dismissing  



                                                 19  

the cardiologists from the suit.                     Nor does the Estate cite Alaska Civil Rule 15 or any  



other legal authority regarding a superior court's discretion in considering a motion for  

                                                                               



                                             20  

leave to amend a complaint.                      As we note above, we will not consider an issue "given  

                          



           19        Cf. Bush v. Elkins, 342 P.3d 1245, 1250-52 (Alaska 2015) (analyzing a  



superior  court's  denial  of  a  motion  for  leave  to  amend  after  the  plaintiff  had  been  

dismissed from the case).  



          20         See,  e.g.,  Miller  v.  Safeway,  Inc. ,  102  P.3d  282,  294  (Alaska  2004)  



(recognizing several reasons to deny leave to amend a complaint).  



                                                                 -12-	                                                          7018
  


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

only a cursory statement in the argument portion of a brief."21  We thus conclude that the  



Estate has waived this argument through inadequate briefing on appeal.  



V.     CONCLUSION  



              We therefore AFFIRM the superior court's judgment.  



      21      See Glover, 314 P.3d at 545.  



                                             -13-                                       7018  

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