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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Todeschi v. Sumitomo Metal Mining Pogo, LLC (4/28/2017) sp-7167
Notice: This opinion is subject to correction before publication in the P ACIFIC 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 email@example.com. THE SUPREME COURT OF THE STATE OF ALASKA NATHANIEL A. TODESCHI, ) ) Supreme Court Nos. S-15542/15571 Appellant and ) Cross-Appellee, ) Superior Court No. 3AN-11-05283 CI ) v. ) O P I N I O N ) SUMITOMO METAL MINING ) No. 7167 - April 28, 2017 POGO, LLC, ) ) Appellee and ) Cross-Appellant. ) ) Ap peal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge. Appearances: Michael W. Flanigan, Flanigan & Bataille, Anchorage, for Appellant/Cross-Appellee. Sean Halloran, LittlerMendelson,Anchorage, forAppellee/Cross-Appellant. Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices. MAASSEN, Justice. I. INTRODUCTION A mine supervisor suffered back injuries over the course of his career and required several surgeries. His employer terminated his employment following his request for an accommodation and his renewed pursuit of a three-year-old workers' compensation claim. The supervisor sued, alleging breach of the covenant of good faith ----------------------- Page 2----------------------- and fair dealing and unlawful discrimination based both on a disability and on his assertion of the workers' compensation claim. The employer defended on grounds that the supervisor could no longer performthe essential functions of his job and had declined an offered accommodation; it also asserted that it was not liable for the workers' compensation claim. A jury returned a special verdict finding the employer liable for breach of the covenant of good faith and fair dealing and awarding the supervisor $215,000 in past lost income, but finding in the employer's favor on the supervisor's other claims. The supervisor appeals. He argues that the superior court erred when it (1) denied his motion for a directed verdict on whether he has a disability; (2) denied his motion for judgment notwithstanding the verdict due to an inconsistency between the jury's decisions of two of his claims; (3) declined to give a burden-shifting or adverse inference instruction based on alleged spoliation of evidence; and (4) raised a statute of limitations defense by way of a jury instruction. The employer cross-appeals, arguing that the superior court erred in excluding one of its witnesses. Seeing no error, we affirm. Because we resolve the appeal in the employer's favor, we do not reach the employer's cross-appeal. II. FACTS AND PROCEEDINGS A. Facts Nathaniel Todeschi began work at Pogo Mine in November 2005. The mine was operated by Teck-Pogo, Inc., which later merged with another company to form Sumitomo Metal Mining Pogo, LLC (Sumitomo), the defendant in this case. Sumitomo stipulated in the trial court that, for purposes of employer liability, it was the operator of Pogo Mine the entire time Todeschi worked there. -2- 7167 ----------------------- Page 3----------------------- Todeschi was promoted to a supervisor position after less than a year at the mine. Sumitomo does not dispute that his work performance was at least acceptable. As a supervisor, Todeschi was responsible for the safety and production targets of up to ten employees. He directed their activities, provided support, and ensured their safety and efficiency. This required that he spend a large part of his workday underground. According to Sumitomo's job description, underground mine supervisors could travel up to 30 miles in the mine during one 13-hour shift. For these purposes Sumitomo provided both trucks and Kubota tractors; the tractors had minimal suspension, but Sumitomo claimed it could neither completely eliminate their use nor significantly improve their suspension. Todeschi had a history of job-related back injuries, which he testified were aggravated whenever he had to drive a tractor. His first back surgery was before he worked at Pogo Mine. He had another surgery in 2008, but it was ineffective; according to Todeschi, he had a herniated disk that broke into fragments. He testified that in order to continue working without pain he consumed so many painkillers that his doctor thought he had cirrhosis of the liver. He had a back fusion in May 2009 to address the problem. When Todeschi returned to work at the mine later that year, Paul Brunelle, a Pogo general foreman, assigned him to a special project that kept him at a desk. When the special project was completed Todeschi resumed his duties as an underground supervisor. His physician had given him a full medical release with no restrictions, but, according to Todeschi, the doctor had not anticipated that he would be required to drive a tractor again. Todeschi soon sent an email to Chad Omaha, another Pogo general foreman, stating that he would "not operate a Kubota tractor for any reason" because of -3- 7167 ----------------------- Page 4----------------------- the risk of further injury to his back. He said Sumitomo was "asking [him] to choose between [his] job and [his] ability to walk and have a normal life" and he had "made all the compromises [he was] going to make on the issue." He asked for other "suitable reliable transportation . . . so that [he might] continue in [his] current capacity as a shift supervisor" and concluded that he would "give it [until] Monday to see if suitable arrangements are made[;] if not you do as you choose." Todeschi apparently continued working his shifts for awhile, using a truck. But in the meantime, Sumitomo supervisors and the company's attorney, Sean Halloran, began discussing by email how Todeschi's injury might be accommodated and whether he should be terminated instead. A few weeks after Todeschi's email ultimatum, Sumitomo sent him to an independent medical exam with Dr. John Michael James. Sumitomo's human resources manager, Thomas Brokaw, provided Dr. James with a newly drafted job description that included a requirement that mine supervisors be able to "replace water pumps (lifting 60lbs to 250lbs depending on the pump being replaced) on their own." Dr. James found the lifting requirement to be unreasonable for even a healthy employee; he concluded that Todeschi could lift items up to 50 pounds occasionally, should not lift anything more than 40 pounds repetitively, and should be provided a truck as an accommodation. Having received Dr. James's evaluation, Sumitomo terminated Todeschi's employment effective that day on grounds that he "could not perform his regular job due to strict lifting limitations and other restrictions as indicated by [Dr. James]." Sumitomo claims its motivation for firing Todeschi was his inability to drive a tractor, though the termination notice did not say so. Todeschi contends, on the other hand, that Sumitomo fired him because he requested the accommodation and because he had sought to reopen a workers' compensation claim he originally filed after his 2007 workplace injury. -4- 7167 ----------------------- Page 5----------------------- Todeschitestifiedthatheabandoned the2007 workers' compensationclaim after Kim Witt, the Pogo human resources manager at the time, told him he would lose his job if he pursued it. Todeschi testified that he used his private insurance to pay for the required medical care but refused to release the workers' compensation insurer, which is why the claim remained open in 2010. Halloran, Sumitomo's attorney, testified that Todeschi's renewed pursuit of the claim was irrelevant to Sumitomo because it predated Sumitomo's operation of the mine and was covered by its predecessor's insurance. Todeschi settled the claim for $80,000 in 2011, while this suit was pending. Todeschi filed his complaint against Sumitomo in February 2011. He alleged claims for (1) discrimination on the basis of a disability under 1 2 AS 18.80.220(a)(1); (2) failure to accommodate his disability under the same statute; (3) breach of the implied covenant of good faith and fair dealing; and (4) discrimination 3 under AS 23.30.247(a) based on his assertion of the workers' compensation claim. 1 "Except as provided in (c) of this section, it is unlawful for (1) an employer to refuse employment to a person, or to bar a person fromemployment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of the person's . . . physical or mental disability." AS 18.80.220(a)(1). 2 Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 864 (Alaska 1978) ("We are persuaded that a duty of reasonable accommodation should be read into [AS 18.80.220(a)]."). 3 "An employer may not discriminate in hiring, promotion, or retention policies or practices against an employee who has in good faith filed a claim for or received benefits under this chapter. An employer who violates this section is liable to the employee for damages to be assessed by the court in a private civil action." AS 23.30.247(a). -5- 7167 ----------------------- Page 6----------------------- B. Proceedings 1. Todeschi's motion for burden-shifting or an adverse inference instruction based on Sumitomo's alleged spoliation of evidence Thomas Brokaw, Sumitomo's human resources manager at the time of Todeschi's termination, died before trial and without being deposed. Sumitomo substituted its attorney Halloran on its witness list. It explained that Halloran had discussed Todeschi's termination with Brokawandcouldtestify about thosediscussions, and it waived the attorney-client privilege to that extent. Todeschi opposed Halloran's designation as a witness as untimely, requesting in the alternative that Sumitomo produce all of Halloran's written and electronic legal advice for this case and any similar cases. The superior court allowed Halloran's testimony but ordered that Sumitomo produce his billing and phone records for the matter, as well as any related communications or memoranda. The court restricted the required production to the period from a month before Todeschi's email ultimatum to a month after his termination, but it noted that any records outside that scope could be reviewed in camera, and it required Sumitomo to create a privilege log. Halloran turned over few emails and phone records and no billing records. He testified that he never billed Sumitomo during 2010 and that he had destroyed any notes when he changed law firms; that his former firm inadvertently destroyed all his emails; and that some of his phone calls used a "voice over internet protocol" (VOIP) system that did not create a record of the call. Emails between Halloran and Brokaw were produced by Sumitomo, but the collection was not complete; Halloran testified that "Brokaw kept the emails that he believed mattered to anything, and he deleted emails that he thought were unimportant." Todeschi moved for a shifting of the burden of proof on his discrimination claims to Sumitomo, or in the alternative a jury instruction allowing an inference that any -6- 7167 ----------------------- Page 7----------------------- missing email, phone, and billing records of Halloran's would have supported his case. The superior court denied the motion, saying only, "I'm not giving a presumption instruction. I don't think that you've met the burden for that." 2. Jury instructionarguably raising a statuteof limitations defense Todeschi also objected to a jury instruction, contending that it invited the jury to apply a statute of limitations defense that Sumitomo had never pleaded. Instruction Number 12 read: You have heard testimony that Kim Witt engaged in certain conduct. Sumitomo cannot be held responsible for Witt's conduct before 2009. However, if you find that Witt engaged in certain conduct before 2009 you may (but need not) further find that it provides context for Sumitomo's actions or omissions in 2010. Before trial Sumitomo had stipulated that "Teck-Pogo Inc. is the same entity as Sumitomo Metal Mining Pogo, LLC. Although the name and corporate form were changed when the company was sold a couple years ago, they are, in fact and law, one and the same entity. Thus, . . . Kim Witt . . . [was a] Sumitomo employee." Todeschi argued that Instruction Number 12 effectively negated Sumitomo's stipulation of fact. He argued that the stipulation allowed him to causally connect Witt's actions in 2008 and his termination in 2010, but the instruction precluded that argument when it said that Sumitomo could not "be held responsible for Witt's conduct before 2009." Sumitomo countered that the instruction only prevented the jury from finding it liable for Witt's alleged threat, and Todeschi had not asserted a claim based on the alleged threat itself; the claim Todeschi did bring involved his 2010 firing by Sumitomo, and the instruction specifically allowed Todeschi to use Witt's alleged threat as background to that event. The court overruled Todeschi's objection and gave Jury Instruction 12. -7- 7167 ----------------------- Page 8----------------------- 3. Directed verdict At the close of the evidence Todeschi moved for a directed verdict on the issue of whether he had a disability. He argued that Dr. James's evaluation conclusively showed he was restricted from a class of jobs and therefore had a physical disability, as defined by federal law, because he was substantially limited in the major life activity of working. The argument relied on federal regulations and the Equal Employment Opportunity Commission's interpretation of the Americans with Disability Act Amendments Act. 4 Sumitomo countered by pointing to Todeschi's full medical release from his own doctor, differing from Dr. James's more guarded evaluation. Sumitomo also argued that the jury might not believe that Todeschi's claimed restrictions were disabilities: While a lifting restriction might prevent him from doing some jobs, the one cited in Dr. James's evaluation was a restriction any average person might have and did not prevent Todeschi from working at Pogo Mine. And no evidence suggested that an inability to drive a tractor could constitute a physical disability; even if it prevented Todeschi from being a mine supervisor, it did not necessarily bar him from an entire class of jobs, which is what the legal definition of "disability" required. The superior court found Todeschi's argument that he had a disability "extremely strong" but denied his motion for directed verdict, concluding that whether 4 See 29 C.F.R. § 1630 (2013); ADAAmendments Act, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (amending Americans with Disabilities Act, 42 U.S.C. §§ 12101- 12213; see also 6 Alaska Administrative Code (AAC) 30.910(b) (2007) ("In deciding complaints of alleged discrimination under AS 18.80 in employment, state and local governmentservices, or publicaccommodationsbecauseofphysicalor mentaldisability, the commission may use 42 U.S.C. 12101 - 12213 (Americans with Disabilities Act) and relevant federal case law as a guideline."). -8- 7167 ----------------------- Page 9----------------------- he had a disability was a question of fact that the jury could reasonably answer either way. 4. Motion for judgment notwithstanding the verdict The jury was asked to answer four questions about liability. It answered "no" to three of them: (1) Whether Sumitomo terminated Todeschi's employment "due to a disability in violation of [AS] 18.80."; (2) whether Sumitomo "fail[ed] to make a reasonable accommodation so that [Todeschi] could continue his employment"; and (3) whether "Todeschi's pursuit of workers' compensation benefits" was "a substantial factor in Sumitomo's termination of his employment." The jury answered "yes" to one liability question: Whether Sumitomo "breach[ed] the covenant of good faith and fair dealing when [it] terminated Todeschi's employment." For his one successful claim the jury awarded Todeschi $215,000 in past lost income. Todeschi moved for a judgment notwithstanding the verdict, additur, or a new trial. In support of a judgment notwithstanding the verdict - the only aspect of the motion relevant to this appeal - Todeschi argued that he had conclusively proven his claim for discrimination based on disability and that the jury's special verdict was necessarily inconsistent; he argued that the jury could only have found a breach of the covenant of good faith and fair dealing on a view of the facts that also required it to find disability discrimination. The superior court found no inconsistency in the jury verdict, however, and denied Todeschi's motion. This appeal followed. -9- 7167 ----------------------- Page 10----------------------- III. STANDARDS OF REVIEW We review the denial of a motion for judgment notwithstanding the verdict 5 (JNOV) using the same standard we use when reviewing a directed verdict. "[B]ecause the sufficiency of the evidence to support a jury verdict is a question of law, our review 6 [of motions for JNOV and directed verdict] is de novo." When we review a trial court's decision on a motion for directed verdict, "we must decide 'whether the evidence, when considered in the light most favorable to the nonmoving party, is such that reasonable 7 persons could not differ in their judgment.' " "[C]onflicting evidence is not to be weighed and witness credibility is not to be judged on appeal."8 We scrutinize JNOV and directed verdict motions "under a principle of minimum intrusion into the right to jury trial guaranteed under the Alaska Constitution. . . . If there is any doubt, questions 9 of fact should be submitted to the jury." We review the superior court's decisions of discovery sanctions, such as 10 "The choice of a particular sanction for spoliation remedies, for abuse of discretion. a discovery violation generally is a matter committed to the broad discretion of the trial 5 Lynden, Inc. v. Walker , 30 P.3d 609, 612 (Alaska 2001) (citing Alaska Tae Woong Venture Inc. v. Westward Seafoods, Inc. , 963 P.2d 1055, 1062 (Alaska 1998)). 6 Cameron v. Chang-Craft, 251 P.3d 1008, 1018 (Alaska 2011). 7 Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008) (quoting Hagen Ins., Inc. v. Roller, 139 P.3d 1216, 1219 (Alaska 2006)); see also Cameron, 251 P.3d at 1017. 8 Cameron, 251 P.3d at 1017-18. 9 Id. (alteration in original) (quoting City of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128, 1130 n.2 (Alaska 1983)). 10 Mills v. Hankla, 297 P.3d 158, 164-65 (Alaska 2013) (quoting Wooten v. Hinton, 202 P.3d 1148, 1155 (Alaska 2009)). -10- 7167 ----------------------- Page 11----------------------- 11 court." "We review a trial court's findings of fact underlying its discovery sanction determination for clear error and 'will not declare a trial court's finding to be clearly erroneous unless, after a review of the entire record, we are left with a definite and firm 12 Whether there has been spoliation is a conviction that a mistake has been made.' " finding of fact.13 " 'Jury instructions involve questions of law to which we apply our independent judgment.' 'When reviewing a trial court's denialofaproposed instruction, our inquiry focuses upon whether the instructions given, when read as a whole, adequately inform the jury of the relevant law.' "14 "An error in jury instructions is grounds for reversal only if it caused prejudice."15 "In evaluating whether there has been prejudicial error with regard to jury instructions, we put ourselves in the position of the jurors and 'determine whether the error probably affected their judgment.' " 16 11 Powell v. Tanner , 59 P.3d 246, 253 (Alaska 2002). 12 Mills, 297 P.3d at 165 (quoting Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdivision, 902 P.2d 766, 776 (Alaska 1995)). 13 See id. (explaining "[t]he superior court's finding that there was no spoliation was not clearly erroneous"). 14 City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012)). 15 Id. (quoting Thompson, 290 P.3d at 398-99). 16 Id. (quoting Thompson, 290 P.3d at 399). -11- 7167 ----------------------- Page 12----------------------- IV. DISCUSSION A. Viewing The Evidence In The Light Most Favorable To Sumitomo, A Reasonable Jury Could Have Found That Todeschi Did Not Have A Disability. Alaska's human rights statutes proscribe certain employment practices, including "discriminat[ing] against a person in compensation or in a term, condition, or 17 privilege of employment because of the person's . . . physical or mental disability." "Physical or mental disability" is defined to mean "a physical or mental impairment that 18 substantially limits one or more major life activities." "Major life activities," in turn, aredefined as"functions such as caring for one's self, performing manual tasks, walking, 19 seeing, hearing, speaking, breathing, learning, and working." Todeschi argues that the trial court should have directed a verdict in his favor on whether he had a disability within the meaning of these statutes - a predicate to his disability discrimination claim - because the evidence at trial demonstrated conclusively that his lifting restrictions substantially limited him in the "major life activity" of working. In support of this argument, Todeschi points to an example in the federal regulations implementing the Americans with Disabilities Act Amendments Act: [I]f a person whose job requires heavy lifting develops a disability that prevents him or her from lifting more than fifty pounds and, consequently, from performing not only his or her existing job but also other jobs that would similarly require heavy lifting, that person would be substantially 17 AS 18.80.220(a)(1). 18 AS 18.80.300(14)(A). 19 AS 18.80.300(10). -12- 7167 ----------------------- Page 13----------------------- limited in working because he or she is substantially limited  in performing the class of jobs that require heavy lifting. Todeschi argues that this example and his own situation "match perfectly" and that both Alaska's anti-discrimination statute and the federal law it incorporates21 required the conclusion that he had a disability as a matter of law. Butwhether theexamplematches Todeschi's casedependson facts thejury could reasonably have found in Sumitomo's favor. First, Sumitomo presented evidence that the lifting requirement did not prevent Todeschi from performing his "existing job." The job description given Dr. James for purposes of the independent medical exam - stating a job requirement of "lifting 60lbs to 250lbs depending on the pump being replaced" - was in Dr. James's opinion unreasonable, but Sumitomo contended that as reasonably interpreted it only described lifting with mechanical aids and that Todeschi never actually had to lift anything so heavy by himself in order to perform his job. Second, the federal example requires the jury to find that Todeschi's inability to meet the lifting requirement barred him from a "class of jobs." He points to the uncontested expert testimony of a vocational counselor that he could not work in several categories of jobs, but the jury could have chosen to assign no weight to that testimony. Rather, using their own experience or relying on evidence such as Dr. James's opinion that the lifting requirement was "fairly unreasonable for a[n] uninjured worker," jurors may have found that Todeschi was no more restricted than an average person. The jury may also have relied on Todeschi's full medical release with no restrictions that predated Dr. James's evaluation to conclude that Todeschi was not precluded from performing a "class of jobs." 20 29 C.F.R. app. § 1630.2(j)(5) & (6) (2013) (emphasis added). 21 See supra note 4. -13- 7167 ----------------------- Page 14----------------------- In short, although Todeschi offered evidence sufficient to support a conclusion that he was limited in the "major life activity" of working and therefore had a disability, the jury was not required to accept it as true in light of the conflicting evidence. We conclude that the superior court did not err when it denied Todeschi's motion for a directed verdict on the disability issue. B. AReasonableJury CouldConsistently FindThat Sumitomo Breached The Covenant Of Good Faith And Fair Dealing But Did Not Discriminate Against Todeschi On The Basis Of A Disability. Todeschi argues that because the jury found that Sumitomo breached the covenant of good faith and fair dealing, it could not consistently find that the company 22 did not discriminate against him on the basis of a disability. Jury Instruction 26 informed the jury how to decide whether Sumitomo had breached the covenant: The defendant violated the implied promise of good faith and fair dealing if you find that it is more likely true than not true that the defendant deprived the plaintiff of a benefit of the contract: 1. by acting in bad faith; or 2. by acting in a manner that a reasonable person would regard as unfair. 22 Although Alaska Civil Rule 50(b) generally limits motions for judgment notwithstanding the verdict to parties who have moved for directed verdict "at the close of all the evidence," Todeschi was not required to make a directed verdict motion in order to preserve his motion for judgment notwithstanding the verdict. He moved for judgment notwithstanding the verdict " because of findings made in the special verdict, rather than notwithstanding them." Borgen v. A & M Motors, Inc., 273 P.3d 575, 584 (Alaska 2012) (emphasis in original). This is the exception to the usual procedural rule, because "a jury's verdict . . . could not have been known before the case was submitted to the jury." Alaska Interstate Constr., LLC v. Pacific Diversified Invs., Inc. , 279 P.3d 1156, 1172 (Alaska 2012). -14- 7167 ----------------------- Page 15----------------------- Todeschi argues that the only act the jury could reasonably have found to satisfy either requirement of this instruction is Sumitomo's submission of the job description to Dr. James suggesting that Todeschi was required to lift as much as 250 pounds as part of his job, "then using the failure to meet those lifting requirements as the basis for a termination." Todeschi asserts that if the jury agreed the job description was unfair and that Sumitomo fired him because of his failure to meet its requirements, it must have believed that he was discriminated against because of a disability. But the jury's verdicts can be harmonized. Instruction 26 allowed the jury to consider a broad landscape of actions and motivations in determining whether Sumitomo breached the covenant of good faith and fair dealing, requiring only a finding that the defendant, at some point, acted "in a manner that a reasonable person would regard as unfair." Conversely, theinstructionsondisability discrimination required more - and more specific - findings. Instruction 15, defining a "disability discrimination claim under AS 18.80.220," required Todeschi to "prove it is more likely true than not true that: (1) . . . he is an individual who has a disability within the meaning of the ----------------------- Page 28----------------------- negligently before imposing any sanction.58 The Florida Supreme Court - which we 59 followed in adopting the burden-shifting presumption - takes a different tack. It has approvedjuryinstructions that,whilerequiringburden-shifting iftherehas been abreach of a legal duty to maintain the lost records, allow an adverse inference when (1) a party caused evidence "to be unavailable, whileit was within [theparty's]possession, custody, or control," and (2) the evidence "would have been material in deciding the disputed 60 issues in [the] case." 57(...continued) Co., 15 F.3d 546, 552 (6th Cir. 1994))); Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) ("The evidentiary value of the inference is derived from the common sense observation that a party who destroys a document with knowledge that it is relevant to litigation is likely to have been threatened by the document."). 58 See, e.g., Beers v. Bayliner Marine Corp., 675 A.2d 829, 833 (Conn. 1996) ("[T]he spoliator must be on notice that the evidence should be preserved."); Kippenhan v. ChaulkServs., Inc., 697 N.E.2d 527, 530 (Mass. 1998) ("Sanctions may beappropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action."); State v. Barnes, 777 A.2d 140, 145 (R.I. 2001) ("Such a presumption or inference ordinarily would arise where the act was intentional or intended to suppress the truth, but 'does not ordinarily arise where the destruction was a matter of routine with no fraudulent intent.' " (citing 29 AM. J UR. 2 D Evidence § 244 at 256)). 59 See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 491 (Alaska 1995) (citing Pub. Health Tr. of Dade Cty. v. Valcin, 507 So. 2d 596, 599-601 (Fla. 1987)). 60 In re Standard Jury Instructions in Civil Cases - Report No. 15-01, 192 So. 3d 1183, 1186 (Fla. 2016); see also League of Women Voters of Florida v. Detzner, 172 So. 3d 363, 391 (Fla. 2015) ("Even in the absence of a legal duty, . . . the spoliation of evidence results in an adverse inference against the party that discarded or destroyed the evidence."). -28- 7167 ----------------------- Page 29----------------------- We applied an adverse inference from the loss of evidence in Thorne v. 61 Department of Public Safety , which Todeschi cites in his brief. In Thorne we held that due process required the State to preserve videotape of a driver's performance on field sobriety tests, made in the course of his arrest for driving under the influence, for use in 62 In fashioning a sanction we considered "the a later license revocation proceeding. degree of culpability on the part of the [S]tate, the importance of the evidence lost, the prejudice suffered by the accused, and the evidence of guilt adduced at the trial or hearing."63 We decided that the videotape evidence was important, that its loss "infringed Thorne's ability to fully contest the issue" of whether he appeared inebriated at the time of his arrest, and that the burden on the State to preserve the videotape was slight.64 We concluded that "considerations of fundamental fairness dictate that where the burden of preservation is so slight," the State bore "a heavy burden in justifying [the evidence's] destruction," a burden that it failed to carry.65 We remanded the case to the hearing officer in the license revocation proceeding "with directions to presume that the 66 theinferencewas thus required rather videotapewouldhavebeen favorableto Thorne"; than permissive. We have never applied Thorne's due process analysis to a civil case in which Sweet's burden-shifting remedy for spoliation was available to address the same 61 774 P.2d 1326 (Alaska 1989). 62 Id. at 1330. 63 Id. at 1331 (citing Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980); State v. Contreras, 674 P.2d 792, 821 (Alaska App. 1983)). 64 Id. at 1330-31. 65 Id. at 1330-31. 66 Id. at 1331. -29- 7167 ----------------------- Page 30----------------------- circumstances: i.e., the lost evidence was clearly important and the party that lost it 67 should have recognized the need to preserve it. And we decline to decide today whether a permissive inference instruction must necessarily be considered as an alternative to a burden-shifting instruction, or what a litigant has to show to be entitled to a permissive inference instruction under Alaska law. Several considerations dissuade us from deciding these issues. First, adverse inference instructions take different forms in different jurisdictions, particularly with regard to whether a duty to preserve the evidence is a prerequisite, and the advantages of the varied approaches have not been 68 Second, even if Alaska law were clear on this issue and the briefed in this appeal. superior court had refused to give an instruction stating the law, we would not necessarily find error, as we review such decisions for abuse of discretion.69 And third, even if the failure to give the proposed instruction was an abuse of discretion, on this record it could only have been harmless. As noted above, when the superior court denied Todeschi's request for an adverse inference instruction, it invited him to make the same point in argument, which 67 See Sweet v. Sisters of Providence in Wash. , 895 P.2d 484, 491 (Alaska 1995). 68 In support of his cursory argument for a permissive adverse inference, Todeschi cites only Thorne, 774 P.2d at 1330-31, as he did below. Sumitomo's briefing on the issue concerns itself only with the facts. 69 Mills v. Hankla, 297 P.3d 158, 165 (Alaska 2013) (finding no clear error in superior court's conclusion that relevant records were not missing from personnel file and "that it was not an abuse of discretion for the superior court to deny sanctions"); Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000) ("The decision whether to include a particular instruction rests with the discretion of the trial court." (quoting Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n.21 (Alaska 1999))). -30- 7167 ----------------------- Page 31----------------------- 70 his counsel did strongly and repeatedly. Argument may help clarify instructions or 71 ameliorate defects in them. And the spoliation theme of Todeschi's argument was supported by one of the jury instructions that was given, informing the jury that "[i]f weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory evidence was within the power of one party to produce, the evidence offered should be viewed with caution." We conclude that the jury was made well aware that it was free to draw an adverse inference from missing telephone records, billing records, and emails and that the instructions that were given did not conflict with this perception. The burden of 72 On this record we cannot say that the proving prejudicial error rests on the appellant. lack of a permissible adverse inference instruction probably affected the jurors' 70 Todeschi'scounselargued that records ofcommunications in acertaintime period had "gone poof" and that "[c]oincidentally, or not so coincidentally, Halloran testified that he destroyed [legal bills] about the same time the lawsuit in this case was filed"; that a deleted email from Halloran to Brokaw "might have also had a message" acknowledging the illegality of "the job description with the 250-pound lifting requirement"; that Halloran had "a severe credibility problem" because he had "admitted that his law firm and Brokaw had destroyed evidence in this case, including his own billing records and attachments to e-mails," leaving the jury with "unrefuted" evidence that Sumitomo had retaliated against Todeschi for pursuing his worker's compensation claim; and that the destruction of emails and phone records "to confirm that [Sumitomo] did anything" was "an uncommon thing to happen" - "it is not usual to have records destroyed, people admitting they destroyed them." 71 See Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) ("[W]e have repeatedly held that ambiguities and potential flaws in jury instructions can be cured by the arguments of the parties."); Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993) ("The parties' arguments can cure defects or omissions in jury instructions."). 72 City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004). -31- 7167 ----------------------- Page 32----------------------- judgment. We therefore conclude that any error in failing to give such an instruction 73 must have been harmless. D. We Cannot Conclude That The Jury Instruction Arguably Raising An Untimely Statute Of Limitations Defense Probably Affected The Verdict. Todeschi alleged that the former human resources manager at Pogo Mine, KimWitt, threatened himin 2008 that if he continued to pursue a worker's compensation claim based on his 2007 injury "[t]here would be repercussions, up to and possibly including [Todeschi's] job." This allegation, he contended, supported his claim that he was fired in 2010 in retaliation for his resurrection of the workers' compensation claim. On appeal he argues that Jury Instruction 12 unlawfully complicated his workers' compensationdiscrimination claimby advising thejury ofastatuteoflimitations defense that Sumitomo had never actually raised. The instruction provided: You have heard testimony that Kim Witt engaged in certain conduct. Sumitomo cannot be held responsible for Witt's conduct before 2009. However, if you find that Witt engaged in certain conduct before 2009 you may (but need not) further find that it provides context for Sumitomo's actions or omissions in 2010. (Emphasis added.) The statute of limitations for workers' compensation discrimination 74 claims is two years, and Todeschi brought his claim in February 2011. 73 Id. (stating that we evaluate whether an erroneous jury instruction "was prejudicial by putting ourselves 'in the position of the jurors and determining whether the error probably affected their judgment' " (quoting Gen. Motors Corp. v. Farnsworth , 965 P.2d 1209, 1214 (Alaska 1998))). 74 AS 09.10.070(a) ("Except as otherwise provided by law, a person may not bring an action . . . upon a liability created by statute . . . unless the action is commenced within two years of the accrual of the cause of action."). -32- 7167 ----------------------- Page 33----------------------- Sumitomo never raised a statute of limitations defense before trial. The assertion of a defense for the first time mid-trial, by way of a jury instruction, would 75 We note that Sumitomo took advantage of the jury likely be unfairly prejudicial. instruction to argue in its closing that "Mr. Witt's conduct cannot form the basis of a finding against Sumitomo in this case. That's because of statute of limitations issues." On the other hand, as Sumitomo argues, there was no apparent reason for it to assert the statute of limitations as an affirmative defense before trial. The causes of action Todeschi alleged in his 2011 complaint and pursued at trial were based on his termination in 2010.76 Witt's alleged conduct in 2008, as described in Todeschi's complaint, was relevant to Todeschi's claim that he had been unlawfully terminated for pursuing a workers' compensation claim, but the challenged jury instruction specifically allowed the evidentiary use of Witt's conduct to "provide context for Sumitomo's actions or omissions in 2010." Accordingly, Todeschi's counsel relied heavily on Witt's actions in his closing argument, telling the jury that "Sumitomo, here in court, did not seriously contest that Kim Witt threatened Todeschi with his job, and that Todeschi acquiesced only under pressure"; that Witt's threat was realized when Todeschi renewed 75 Barrett v. Byrnes, 556 P.2d 1254, 1255 (Alaska 1976) (holding that defendants waived a statute of limitations defense when it "was not raised prior to trial or in the opening statements of the appellee, but rather for the first time after the appellant had rested her case" (internal citation omitted)). But see Blake v. Gilbert , 702 P.2d 631, 638-39 (Alaska 1985) (holding that the superior court did not abuse its discretion by allowing a defendant to raise a new statute of limitations defense in his amended answer because raising it before trial did not prejudice the plaintiff, distinguishing Barrett), overruled on other grounds by Bibo v. Jeffrey's Rest. , 770 P.2d 290 (Alaska 1989). 76 The trial court asked Todeschi what damages he suffered from Witt's alleged threat in 2008, to which heresponded, "[A]t that point it's accumulating medicals that aren't being paid for." He did not seek medical expenses as damages in this case, and they do not appear relevant to his claims for wrongful termination. -33- 7167 ----------------------- Page 34----------------------- his pursuit of the workers' compensation claimin 2010; and that "given Witt's threat and the termination that quickly followed the reassertion of his compensation claim, it certainly appears to have been at least one of the substantial factors in [Sumitomo's] decision to sack Mr. Todeschi." Todeschi does not dispute that the jury was properly instructed on the elements of his workers' compensation discrimination claim. And Instruction 12 expressly preserved the jury's ability to consider Witt's conduct when deciding that claim. To the extent the instruction at the same time precluded the jury from holding Sumitomo responsible for Witt's conduct, we agree that it presents an ambiguity - one that could have been compounded by Sumitomo's mention in closing argument of a statute of limitations defense it had never pleaded. But even if erroneous, Instruction 12 77 We determine prejudice by putting "is grounds for reversal only if it caused prejudice." ourselves "in the position of the jurors and 'determin[ing] whether the error probably 78 79 and considering Reading the jury instructions as a whole, affected their judgment.' " the parties' arguments to the jury about the evidence they should consider in deciding Todeschi's claims, we cannot conclude that the jury's verdict was probably affected by the ambiguity in Instruction 12. It is not probable that the jury believed it was precluded 77 City of Hooper Bay v. Bunyan , 359 P.3d 972, 978 (Alaska 2015) (quoting Thompson v. Cooper , 290 P.3d 393, 398-99 (Alaska 2012)). 78 Id. (quoting Thompson, 290 P.3d at 399). 79 Id. ("When reviewing a trial court's denial of a proposed instruction, our inquiry focuses upon whether the instructions given, when read as a whole, adequately inform the jury of the relevant law." (quoting Thompson, 290 P.3d at 398)). -34- 7167 ----------------------- Page 35----------------------- from considering Witt's conduct in 2008 in deciding whether Sumitomo was liable for 80 its own conduct in 2010 in terminating Todeschi's employment. V. CONCLUSION We AFFIRM the judgment of the superior court. 80 Todeschi also argues "that the [superior court] should have given an instruction that permitted an award of emotional distress damages" for his claim for breach of the covenant of good faith and fair dealing "under the unique facts of this case." Such damages are not ordinarily recoverable on contract claims. See Hancock v. Northcutt, 808 P.2d 251, 258-59 (Alaska 1991) (discussing the types of contracts, "highly personal and laden with emotion," that may present exceptions to the general rule precluding emotional distress damages in contract actions). Todeschi's minimal briefing of the issue gives us no basis on which to conclude that the superior court erred. See Hagen v. Strobel, 353 P.3d 799, 805 (Alaska 2015) ("[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal." (alteration in original) (quoting Glover v. Ranney , 314 P.3d 535, 545 (Alaska 2013))).
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