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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lindbo v. Colaska, Inc. (3/23/2018) sp-7231

Lindbo v. Colaska, Inc. (3/23/2018) sp-7231

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

KEVIN  W.  LINDBO,                                                    )  

                                                                      )    Supreme  Court  No.  S-16054  

                                Appellant,                            )  


                                                                      )    Superior Court No.  1KE-14-00128 CI  

           v.                                                         )  


                                                                      )    O P I N I O N  


COLASKA, INC., d/b/a SECON and                                        )  



MATTHEW LINDLEY,                                                      )    No. 7231 - March 23, 2018  


                                Appellees.                            )  




                        ppeal from the Superior Court of the State of Alaska, First  


                      Judicial District, Ketchikan, Trevor Stephens, Judge.  


                      Appearances:  Paul A. Clark, Clark Legal Services, Jersey  


                      City,  New Jersey, for  Appellant.                        Gregory  R.  Henrikson,  


                      Walker  &  Eakes,  Anchorage,  for  Appellee  Colaska,  Inc.  


                      Daniel  T.  Quinn,  Richmond  &  Quinn,  Anchorage,  for  


                      Appellee Matthew Lindley.  


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


                      Bolger, Justices.  [Carney, Justice, not participating.]  


                      WINFREE, Justice.  



                      An asphalt plant operator threw a can at a driver waiting outside his truck  


to get his attention, striking him in the back. The driver brought negligence and battery  


claims against the plant operator and his employer, but was awarded minimal damages  


after trial.  The driver now appeals several of the superior court's decisions regarding  

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


jury instructions, evidentiary rulings, and pre- and post-trial orders. But because we find  


no error in the superior court's decisions, we affirm the judgment.  




                    In August 2012 Kevin Lindbo was working as a truck driver for Karlson  


and Karlson, Inc. (K&K), delivering asphalt from Colaska Inc.'s plant to a paving  


project.  On August 21 Lindbo drove to Colaska's plant, stopped, and stepped out of his  


truck, turning his back to the machinery. The plant operator, Matthew Lindley, gestured  


and yelled at Lindbo, trying to direct him to drive to the asphalt loading area. But unable  


to hear Lindley amidst the loud noises at the plant, Lindbo was unresponsive.  Lindley  


then picked up a can and threw it in Lindbo's direction, apparently attempting to get his  


attention.  The can struck Lindbo in the lower back.  Lindbo dropped to his hands and  


knees and soon after went to an emergency room for medical treatment.  


                    In March 2014 Lindbo filed suit against Colaska and Lindley, alleging the  


blow fromthe can caused himongoing pain requiring medical attention. Lindbo claimed  


that  Lindley's  actions  constituted  battery  and  negligence  and  that  Colaska  was  


vicariously liable for Lindley's actions. Lindbo sought punitive damages, and he sought  


compensatory damages for past and future medical expenses, past and future loss of  


income, past and future pain and suffering, mental anguish, loss of enjoyment of life,  


physical impairment, and inconvenience.  


                    A five-day jury trial took place in June 2015.  The jury found that Lindley  


had not committed a battery, but that he had been negligent and that his negligence was  


a substantial factor in causing Lindbo harm.  The jury awarded Lindbo just over $2,500  


in compensatory damages.  


                    Lindbo appeals, contending that the superior court erred by:  (1) failing to  


give a spoliation jury instruction on Colaska's failure to preserve the can that hit him;  


(2) allowing a witness to refresh his recollection with late-discovered documents and  

                                                                -2-                                                        7231

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

subsequently   admitting   the   documents   into   evidence;   (3)   admitting   Lindbo's   past  

medical records, including a history of prescription drug use, and evidence of late child                                                                                           

support payments; (4) admitting evidence of Lindbo's prior conviction for attempted                                                                                     

vehicle theft; (5) failing to correct improper "vouching" during closing arguments; and                                                                                               

(6)  denying his request for a new trial.                                             

III.           STANDARD OF REVIEW                       


                             "The correctness of jury instructions is reviewed de novo."                                                                                        

                                                                                                                                                               But the failure  



to  give  a  jury  instruction  is  grounds  for  reversal  only  if  it  caused  prejudice. 


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  



                                                              Failure to instruct the jury on a particular ground when no  

affected their judgment.' " 

                                                                                                                                4    Plain error exists when "a  



party requested that instruction is reviewed for plain error. 

correct instruction would have likely altered the result."5  


               1             Ayuluk  v.  Red  Oaks Assisted  Living, Inc.,  201  P.3d  1183,  1197  n.30  (Alaska  

2009)  (citing  Parnell  v.  Peak  Oilfield  Serv.  Co.,   174  P.3d  757,  765  (Alaska  2007)).   

               2              Todeschi  v.  Sumitomo  Metal  Mining  Pogo,  LLC,  394  P.3d  562,  570  (Alaska  


               3             Id. at 570-71 (quoting City of Hooper Bay v. Bunyan, 359 P.3d 972, 978  


(Alaska 2015)).  


               4             Reust v. Alaska Petroleum  Contractors, Inc., 127 P.3d 807, 816 (Alaska  



               5             Id. (quoting Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997)).  


                                                                                            -3-                                                                                    7231

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

                         "Rulings on discovery and on discovery sanctions are generally reviewed                                                   


for   abuse   of   discretion."                                                                                                                  

                                                      "We  review  a  trial  court's  decision  to  admit  evidence,  




including the testimony of a witness, for abuse of discretion." 


                         We review a decision to admit evidence under Alaska Evidence Rule 403  


by "balanc[ing] the danger of unfair prejudice against the probative value of the evidence  


 'to determine whether the potential danger predominated so greatly as to leave us firmly  


convinced that admitting the challenged evidence amounted to aclear abuse of discretion  



under Evidence Rule 403.' " 

                         A court's  "refusal to  grant a new trial is reviewed under an  abuse of  


discretion standard."9  


                         When deciding questions of law, we "adopt the rule of law that is most  


                                                                                                   10   For mixed questions of law and  

persuasive in light of precedent, reason, and policy."                                                                                                       


fact,  "we  review  factual  questions  under  the  clearly  erroneous  standard  and  legal  


             6            Christensen v. NCH Corp.                         , 956 P.2d 468, 473 (Alaska 1998) (citing                                     Stone  

v.  Int'l Marine Carriers, Inc.                       , 918 P.2d 551, 554 (Alaska 1996);                                In re Mendel             , 897 P.2d     

68, 73 n.7 (Alaska 1995)).           

             7           Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508  


(Alaska 2015) (citing Getchell v. Lodge, 65 P.3d 50, 53, 58 (Alaska 2003)).  


             8           Jones v. Bowie Indus., Inc., 282 P.3d 316, 324 (Alaska 2012) (alteration in  


original) (quoting Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007)).  


             9           Luther v. Lander, 373 P.3d 495, 500 (Alaska 2016) (citing Getchell, 65  


P.3d at 53).  


             10          Bd.  of  Trs.,  Anchorage  Police  &  Fire  Ret.  Sys.  v.  Municipality  of  


Anchorage , 144 P.3d 439, 445 (Alaska 2006) (citing Rockstad v. Erikson, 113 P.3d  


 1215, 1219 (Alaska 2005)).  


                                                                               -4-                                                                        7231

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


questions using our independent judgment."                                                                    We will find clear error only "when we                                                 

are left with a definite and firm conviction based on the entire record that a mistake has                                                                                                          

                              12    We will find an abuse of discretion upon a showing that a decision was  

been made."                                                                                                                                                                                        

"arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive."13  


IV.	            DISCUSSION  


                A.	             The   Superior  Court's   Failure   To   Give   An   Adverse  Inference  


                               Instruction Was Not Plain Error.  


                               Before  trial  it  became  clear  that  the  parties  would  offer  conflicting  


testimony on the size and weight of the can thrown at Lindbo.  Lindbo testified that he  


was hit with a heavy axle grease can; Lindley testified that he threw "an empty aerosol  


can."  The can was not preserved.  


                               Lindbo moved before trial for an adverse inference jury instruction based  



on Colaska's failure to retain the can.                                                       Lindbo argued that the can's absence hindered  

                11             Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                                ,  

204 P.3d 1013, 1018 (Alaska 2009) (citing                                                          A.M. v. State                 , 945 P.2d 296, 304 n.10 (Alaska                         

 1997));  see also Brown v. Knowles                                               , 307 P.3d 915, 923 (Alaska 2013) ("With regard to                                                                   

mixed questions of law and fact, we 'review[] the superior court's factual findings for                                                                                         

clear error, and the legal issues de novo.' " (alteration in original) (quoting                                                                                                  Dashiell R.   

v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                         , 222 P.3d 841, 849  

(Alaska 2009))).   

                12             Brown, 307 P.3d at 923 (quoting In re Protective Proceedings of W.A., 193  


P.3d 743, 748 (Alaska 2008)).  


                13              Tracy v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  


279 P.3d 613, 616 (Alaska 2012) (citing  Ware v. Ware, 161 P.3d 1188, 1192 (Alaska  



                14             An adverse inference instruction allows the jury to infer fromthe spoliation  


of  evidence  that  the  evidence  would  have  been  unfavorable  to  the  spoliator.                                                                                                             See  


Todeschi v. Sumitomo Metal Mining Pogo, LLC, 394 P.3d 562, 568, 574-75 (Alaska  



                                                                                                   -5-	                                                                                         7231

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his case because his testimony on its weight could not be corroborated.                                                                                    The superior   

court denied the motion without prejudice, advising Lindbo to renew his request at trial                                                                                        

if the evidence presented warranted the instruction.                                                           Lindbo did not renew his request.                                          

Lindbo nonetheless appeals the superior court's failure to give an instruction.                                                                                        

                            Plain error review applies when a party failed to properly raise a jury                                                                            

                                                   15   An objection is properly raised only if that party "provide[d]  

instruction error at trial.                                                                                                                                     

the superior court with an 'identifiable opportunity to rule' on the issue."16  A pretrial  


motion for a non-specific, generalized jury instruction - denied without prejudice to a  


renewed requestwhen jury instructions are being prepared -without afollowup request  


for  a  specific  instruction  at  the  close  of  evidence  does  not  provide  an  identifiable  


opportunity to rule.17  


                            Lindbo's appeal falls squarely under this rule.  The superior court denied  


his pretrial motion without prejudice, advising that he "is requesting a jury instruction  


              14            (...continued)  


2017).            We have not yet approved  the use of  such  an  instruction as a remedy  for  


spoliation, nor have we announced the standard trial courts should use when deciding  


whether to give such an instruction.  In Todeschi we declined to reach the issue because  


we concluded that any error was harmless. 394 P.3d at 577-78. For similar reasons here,  


we reserve decision on those issues.  

              15            Reust v. Alaska Petroleum  Contractors, Inc., 127 P.3d 807, 816 (Alaska  



              16            Id. (quoting Manes v. Coats, 941 P.2d 120, 125 n.4 (Alaska 1997)).  


              17            See Jaso v. McCarthy, 923 P.2d 795, 799-800 (Alaska 1996) ("The court  


told McCarthy's counsel that it would give an instruction if one was necessary and that  


it would consider arguments on the issue at a later point.  McCarthy failed to re-visit the  


issue,  as  invited  by  the  court,  and  did  not  object  to  the  court's  failure  to  give  an  


instruction on the issue before the jury retired  to consider the verdict.  Therefore we  


review this issue only for plain error.").  


                                                                                         -6-                                                                                 7231

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and . . . may request a jury instruction during trial if the evidence actually presented                                                                

warrants   it."     But   Lindbo   never   took   the   court's  suggestion   by   providing   specific  

language for an instruction at trial.                                          We therefore review his appeal for plain error.                                              

                              Applying the plain error standard, there is no reversible error here.                                                                                 Plain  

error exists when "an obvious mistake has been made which creates a high likelihood                                                                                       

                                                             18     This standard requires the error to be prejudicial; there  

that injustice has resulted."                                                                                                                                                         

must  be  a  "reasonable  probability  that  [the  error]  affected  the  outcome  of  the  



                              Such a probability does not exist here. Thejury verdictreflectsthat Lindley  


did not commit a battery, that Lindley's negligence caused Lindbo harm, that Lindbo had  


past economic loss (limited to wage loss) but no future economic loss,20  and that Lindbo  


had past non-economic loss but no future non-economic loss. It is unclear which finding,  


if any, could have been changed by an adverse inference instruction.  First, the battery  


                                                                              21    Given that in Lindbo's closing argument he was  

finding turned on Lindley's intent.                                                                                                                                                     


able to attack Lindley's credibility by focusing on the can's weight, but that the jury still  


found no intent to make contact, adding an adverse inference instruction likely would  


               18             Small v. Sayre                  , 384 P.3d 785, 788 (Alaska 2016) (quoting                                                       D.J. v. P.C.              , 36   

P.3d 663, 668 (Alaska 2001)).                       

               19             See Adams v. State, 261 P.3d 758, 773 (Alaska 2011).  


               20             Lindbo does not challenge the jury's failure to award past or future medical  


expenses.  Although it is unclear whether Lindbo sought to collect this amount at trial,  


it appears from trial testimony that Colaska paid for Lindbo's emergency room visit.  


               21             See Maddox v. Hardy, 187 P.3d 486, 498 (Alaska 2008) ("Battery occurs  


when  an  actor  intends  to  cause  harmful  or  offensive  contact  with  another  and  an  


offensive contact results.").  


                                                                                             -7-                                                                                      7231

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have made no difference.                                              Second, Lindbo's economic loss was proven by Lindbo's                                                                        

medical records and work logs.                                                   The can's weight could not have changed this finding.                                                                 

                                  The only finding that the can could possibly have changed was Lindbo's   

non-economic loss; a heavier can could have caused him greater pain and suffering. But                                                                                                                            

here too we are not persuaded that the failure to give an instruction created a "high                                                                                                                       

                                                                                                23      Lindbo was able to testify that he "feared for  

likelihood that injustice has resulted."                                                                                                                                                                           

 [his] life," that he required a pain injection at the emergency room, that the incident left  


him "in shock," that it caused "really bad leg pains and muscle spasms," that he was "in  


pain a lot and . . . didn't know what to do," and that he still suffered "weakness in [his]  


left leg" and a "slight limp."   The jury thus had ample testimony to make its non- 


economic loss award, but given (1) its failure to award any amount for past and future  


medical expenses, and (2) as discussed below, evidence of Lindbo's return to part-time  


work shortly after the incident, we are not convinced that adding an adverse inference  


instruction would have made any difference to the award's final amount.  


                 B.	              The Superior Court Did Not Abuse Its Discretion By Permitting The  


                                  UseOf Late-DisclosedDocumentsToRefreshAWitness's Recollection  


                                  And By Later Admitting Those Records Into Evidence.  


                                  On the second day of trial Colaska tried to admit 2 of 20 load sheets -  


which are filled out by K&K's drivers each work day and include when those drivers  


started and finished their work - showing that Lindbo returned to work shortly after  


being hit with the can.  Because the 20 load sheets were not previously disclosed during  


discovery,  the  superior  court  ruled  they  could  be  used  only  to  refresh  a  witness's  


                 22               Cf. Todeschi v. Sumitomo Metal Mining Pogo, LLC                                                                                      , 394 P.3d 562, 579                       

(Alaska 2017) (reasoning that failure to give adverse inference instruction was harmless                                                                                                             

in part because plaintiff's counsel was allowed to argue point in closing).                                                                                        

                 23               See Small, 384 P.3d at 788.  


                                                                                                          -8-	                                                                                                7231

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recollection.   Later that day K&K's owner, Daniel Karlson, testified that he believed                                                                                                                                                                                   

Lindbo "did come back to work after th[e] incident . . . once or twice" as an extra driver                                                                                                                                                                                        

but he could not remember the exact dates.                                                                                                         After Karlson refreshed his recollection by                                                                                               

looking at the previously undisclosed load sheets, he testified that after the August 2012                                                                                                                                                                                           

incident he thought Lindbo came back to work on September 8 and October 6.                                                                                                                                                                                                    

                                              On the fourth day of trial Lindbo sought to admit only the 18 K&K load                                                                                                                                                                   

sheets showing when he worked prior to the incident; he did not want to admit the last                                                                                                                                                                                                    

two K&K load sheets showing that he worked after the incident.                                                                                                                                                                     The superior court                               

ruled that if Lindbo sought to admit the 18 earlier load sheets, Colaska could admit the                                                                                                                                                                                                   

remaining two.                                        Lindbo chose to have all 20 of the load sheets admitted.                                                                                                                                          

                                              1.	                   Permitting   Karlson   to   refresh   his   recollection   under   Alaska  

                                                                    Evidence                                Rule                   612(a)                        did                not               contravene                                     Alaska                          Civil  

                                                                    Rule 37(c)(1).   

                                             Lindbo   argues   that   allowing  Karlson   to   refresh   his   recollection   with  

previously undisclosed load sheets violated Alaska Civil Rule 37(c)(1).                                                                                                                                                                               Rule 37(c)(1)   

states:     "A   party   that   without   substantial   justification   fails   to   disclose   information  

required . . . shall not, unless such failure is harmless, be permitted to use as evidence at                                                                                                                                                                                                   

                                                                                                                   24  Lindbo contends Karlson did not use the documents  

trial" the undisclosed information.                                                                                                                                                                                                                               

to refresh his recollection, but he instead "read . . . them [into the record] verbatim."  


                                             Wedisagreewith Lindbo'scharacterization. Colaska did not "use [theload  


sheets] as evidence at trial";25  Colaska instead used the load sheets to refresh Karlson's  


recollection.                                    Prior  to  refreshing  his  recollection  Karlson  had  testified  that  Lindbo  


worked for him on two occasions after the incident.  We are therefore unconvinced that  


Karlson testified on this point from the load sheets instead of from his memory; any  


                       24                    Alaska R. Civ. P. 37(c)(1).                                  

                       25                    See id.  


                                                                                                                                               -9-	                                                                                                                                                 7231  

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

subsequent error arising from Karlson talking about the load sheets when he had them           

in front of him would be harmless because they later were moved into evidence.                                                                                

                          Alaska Evidence Rule 612(a) states that "[a]ny writing or object may be                                                                   

                                                                                                                                         26  We have held  

used by a witness to refresh the memory of the witness while testifying."                                                                                        


                          Under this rule, a document  need not be admissible to be  


                          used to refresh a witness's memory.   Instead, if the party  


                          using the document does not wish to admit it, Rule 612(a)  


                          simply  allows  any  party  seeking  to  impeach  the  witness  


                          whose memory is refreshed the right "to inspect the writing  


                          . . . , to cross-examine the witness thereon, and to introduce  


                          those portions which relate to the testimony of the witness."  


                          By expressly granting the right to immediate inspection, the  


                          rule implicitly recognizes the absence of a pretrial duty of  


Furthermore, because Evidence Rule 612(a) allows any writing to be used for refreshing  


                        28  we reject Lindbo's argument that refreshing a witness's recollection by  


                                                                                                                                          29   The superior  

using a previously undisclosed document violates Civil Rule 37(c)(1).                                                                                    


court  did  not  err  or  abuse  its  discretion  by  allowing  Karlson  to  use  previously  


undisclosed load sheets to refresh his recollection.  


             26           Alaska R. Evid. 612(a).          

             27           Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1253 (Alaska 2007)  


(alteration in original) (emphasis added) (footnotes omitted) (first citing Alaska R. Evid.  


cmt. 612(a); then quoting Alaska R. Evid. 612(a)).  


             28           See also  Alaska R. Evid. cmt. 612(a) (explaining Rule 612(a) "rejects  


limitations on the kinds of writings or objects" permissible for use and noting "anything  


can be used to refresh the memory of a witness").  


             29           See Denison, 167 P.3d at 1253 (holding that parties objecting to use of  


object  to  refresh  recollection  may  inspect  object  but  have  "no  right  of  earlier  



                                                                                -10-                                                                           7231

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

                                         2.	                  Any   error   in   admitting   the   late-disclosed   documents   was  


                                         Lindbo argues that he should have been permitted to enter only the load                                                                                                                                             

sheets demonstrating his preinjury work history because Rule 37(c)(1) forbade the late-                                                                                                                                                                      

disclosing party from admitting the other two load sheets into evidence. He contends the                                                                                                                                                                          

admission of the last two load sheets was prejudicial and that he was afforded no time   

to rebut the new evidence. We conclude that any possible error from admitting the post-                                                                                                                                                                    

injury load sheets was harmless.                                      

                                         Lindbo's primary argument on appeal is that although discovery sanction                                                                                                                                 

issues are usually reviewed for abuse of discretion, Rule 37(c)(1) "mandates" a sanction,                                                                                                                                                    

leaving the court "no discretion" in its application.                                                                                                         But under Rule 37(c)(1) exclusion   


is just the express immediate sanction;                                                                                                                                                                                                

                                                                                                                                   the Rule should not be read as completely  

                                                                                                                                                                                                          31       Here, the superior  


removing the superior court's discretion over evidentiary matters. 

court did  exclude the two load sheets when Colaska sought to admit them initially.  


Lindbo then sought to admit only the preinjury load sheets that helped him present his  


case, which the superior court correctly noted "would have created the impression that  


K&K's complete records for Mr. Lindbo's work . . . were being admitted" and "the  


absence of any records after the date of his injury [could wrongly] evidence . . . that  


Mr. Lindbo did not work for Mr. Karlson because he was too injured to do so, which  


would be entirely inconsistent with the records . . . at issue." We agree with the superior  


court that Lindbo's desired sanction would have misrepresented the evidence, and we do  


                     30                   See  Alaska R. Civ. P. 37(c)(1) (providing that the violating party "shall                                                                                                                                    

not . . . be permitted to use [the information] as evidence at trial" and that the court may                                                                                                                                                                 

impose other sanctions "[i]n addition to                                                                                   this sanction                            " (emphasis added)).                                              

                     31                  See id. (providing court may impose other sanctions "[i]n addition to or in  


lieu of this sanction").  


                                                                                                                               -11-	                                                                                                                       7231

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

not read Rule 37 to require the jury to receive a false impression of the evidence as the                                                                                                       

sanction for a discovery violation.                      

                               Lindbo also argues that                             theadmissionofthetwo load sheets was prejudicial                                                                      

because he had "no opportunity to counter it."                                                             We agree with Lindbo that being forced                                       

to choose between letting all of the load sheets in or excluding all of them put him in a                                                                                                           

difficult position.  But Lindbo has the burden of showing prejudicial error, and we are                                                                                                         

                                                                                                                                                                                  32     Thus,  

not convinced that the superior court's actions had any impact on the verdict.                                                                                                           

even if we were to go so far as to find an abuse of discretion, any error was harmless.  


                               First, admitting the last two load sheets - indicating that Lindbo worked  


on September 8 and October 6 - was not prejudicial because other evidence already  


demonstrated that Lindbo was physically able to, and in fact did, work following the  


injury.   Karlson testified that Lindbo worked for him "a couple of times" after the  


incident, observing that Lindbo appeared "fine" with no noticeable limping or pain.  


Colaska's asphalt plant manager, John Logsdon, also testified that he recalled Lindbo  


hauling loads at the plant after the incident, saw Lindbo discussing the injury with others,  


and expressly told Lindbo to "get back in your truck and just don't talk to these guys."  


Logsdon definitively placed that day as the "sixth of October."  Lindbo himself also  


implied in his complaint that he went back to work, alleging an exchange he had with  


Logsdon after the incident and how Colaska did not call Lindbo back to work after that  


post-incident exchange.  


                               Second, Lindbo was not prejudiced by the timing of the newly discovered  


evidence.  Contrary to his claim that he was "unable to take any action to investigate if  


the [last two load sheets] were accurate or obtain evidence to rebut the new evidence,"  




                               See Myers v. Robertson, 891 P.2d 199, 208 (Alaska 1995) (citing Loof v.  


Sanders, 686 P.2d 1205, 1209 (Alaska 1984)).  

                                                                                               -12-                                                                                                7231  

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

Lindbo   did   refute the accuracy                                                                                                                                of the load sheets through testimony.                                                                                                                                                           When asked   

 specifically about the October 6 sheet, Lindbo testified that although his name appeared                                                                                                                                                                                                                                                                                                 

in his handwriting, he had left many otherwise blank load sheets filled out with his name                                                                                                                                                                                                                                                                                                                   

in his truck at the plant, implying that someone else may have filled it out.                                                                                                                                                                                                                                                                                           And Lindbo   

did not ask for a continuance "request[ing] additional time to obtain and present other                                                                                                                                                                                                                        

 evidence related to his whereabouts on September 8 . . . and October 6, 2012."                                                                                                                                                                                                                                                                                                                Lindbo  

never suggested any alternative sanction that could have punished Colaska without                                                                                                                                                                                                                                                                                                             

causing   him unfair                                                                              surprise,   which   he was surely                                                                                                                            entitled   to   do   as the victim of                                                                                                                          a  

discovery   violation.     Lindbo's   failure   to   take   any   action   in   the   superior   court   to  

 ameliorate the surprise, except to insist that he was entitled to present a distorted view                                                                                                                                                                                                                     

of the evidence, cautions us against now finding prejudice on this record.                                                                                                                                                                                                                                                         

                                                                 We therefore hold that error, if any, in how the superior court sanctioned                                                                                                                    

 Colaska or dealt with the admission of the load sheets, was harmless.                                                                                                                                                                                                                            

                                 C.	                             Lindbo's Arguments About His Drug Use, Child Support Payments,                                                                                                                                                                                                                                                

                                                                 And Prior Injuries Are Meritless Or Abandoned.                                                                                                                                                  

                                                                  1.	                             The   superior   court  did   not   abuse   its   discretion   by denying   

                                                                                                  Lindbo's motion to exclude all evidence of drug use, and any                                                                                                                                                                                                                                                    

                                                                                                  objection to improper use of that evidence is unpreserved.                                                                                                                                                                               

                                                                 Lindbo argues that Colaska improperly relied on evidence of his prior                                                                                                                                                                                                                                                                      

prescription drug use during trial. Citing Alaska Evidence Rule 404(a) he contends that                                                                                                                                                                                                                                                                                                                             


the evidence presented impermissibly tainted his character.                                                                                                                                                                                                                                               

                                                                 Lindbo first raised this issue in a pretrial motion in limine.  The superior  


court denied Lindbo's motion in part, stating that "at this point . . . the evidence is clearly  


probative with respect to" both his "ongoing pain complaints" and credibility.  But the  


                                 33                              See  Alaska R. Evid. 404(a) ("Evidence of a person's character or a trait of                                                                                                                                                                                                                                                                               

character is not admissible for the purpose of proving that the person acted in conformity                                                                                                                                                                                                                                                                                      

therewith on a particular occasion . . . .").                                                                                                                                 

                                                                                                                                                                                                          -13-	                                                                                                                                                                                                7231

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

court also ruled that Colaska would "not be permitted to argue that the jury may consider                                                                                                                                                                                                                                                                                                                                                 

the evidence for a non-relevant purpose," and suggested that the court would "provide                                                                                                                                                                                                                                                                                                                                                  

a limiting instruction to the jury" at Lindbo's request.                                                                                                                                                                                                 

                                                                         Lindbo raised this issue again as an objection prior to opening arguments,                                                                                                                                                                                                                                                                        

requesting a limiting jury instruction that the superior court agreed to give.                                                                                                                                                                                                                                                                                                                                                            Lindbo  

agreed to the language the superior court drafted with one exception:                                                                                                                                                                                                                                                                                                                   he requested that                                                          

the word "alleged" be added before "drug usage," which the court included.                                                                                                                                                                                                                                                                                                                                                        34  Lindbo  

                                    34                                   The superior court's limiting instruction stated:                                                                                                                                                                             

                                                                                                             You    are    about    to    hear    the    attorney's    opening  

                                                                         statements.   Opening statements are an opportunity for an                                                                                                                                                                                                                                                             

                                                                         attorney   to   tell   the   jury   what   he   or   she   anticipates   the  

                                                                         evidence   admitted   at   trial   will   be.     As   I   have   previously  

                                                                         advised   you,   nothing   the   attorneys   say   is  evidence   and  

                                                                         nothing that they refer to in their opening statement is in                                                                                                                                                                                                                                                              

                                                                         evidence.     It   remains   to   be   seen   what  evidence   will   be  

                                                                         admitted during the trial.                                                                                   

                                                                                                              I anticipate that one or both of the defense attorneys                                                                                                                                                                                       

                                                                         will make an opening statement and that, during the opening                                                                                                                                                                                                                               

                                                                         statement or                                                           statements,  there will be references made to                                                                                                                                                                                                     

                                                                         alleged drug usage by Mr. Lindbo. There are four things that                                                                                                                                                                                                                                                      

                                                                         you must understand about such references.                                                                                                                                                                                                             First, what is                                                       

                                                                         said is not evidence.                                                                                               Second, if such evidence is admitted                                                                                                               

                                                                         during the trial it could be considered by you only for the                                                                                                                                                                                                                                                         

                                                                         limited purpose of evaluating Mr. Lindbo's injury claims.                                                                                                                                                                                                                                                                                

                                                                         Third, you could not consider such evidence for any other                                                                                                                                                                                                                                               

                                                                         purposewhatsoever unless                                                                                                                        subsequently otherwiseinstructed   

                                                                         by the court.                                                         Fourth, if such evidence is admitted during the                                                                                                                                                                                                

                                                                         trial you should give it the weight that you believe it deserves                                                                                                                                                                                                                

                                                                         for the limited purpose for which you may consider it.                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                  -14-                                                                                                                                                                                                                        7231

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

did not object at any other point during the trial about this issue, including when the                                                                                                                             


court gave its final jury instruction on his alleged drug usage.                                                                                                  

                                  We construe Lindbo's appeal as challenging any evidence of his drug use,  


                                                                                                                 36  To the extent Lindbo is now arguing that  

which was undoubtedly preserved for appeal.                                                                                                                                                                        


specific  uses  at  trial  violated  the  superior  court's  pretrial  order,  his  objections  are  


unpreserved.37                          So construed, the superior court did not abuse its discretion by denying  


Lindbo's motion in limine.38                                                The Rules of Evidence do not completely forbid the jury  


from hearing evidence that may create an impermissible character inference.39                                                                                                                           Instead,  


                 35               The superior court's limiting jury instruction given at the trial's conclusion                                                                                 


                                                   There   are   references   in   the   record   to   alleged  drug  

                                  usage by Mr. Lindbo.                                      There are three things that you must                                              

                                  understand about such references.                                                         First, the evidence was                             

                                  admitted   during   the   trial   only   for   the   limited   purpose   of  

                                  evaluating Mr. Lindbo's injury claims. Second, you shall not                                                                                     

                                  consider such evidence for any other purpose whatsoever.                                                                                                  

                                  Third, you should give this evidence the weight, if any, that                                                                                  

                                  you believe it deserves for the limited purpose for which you                                                                                  

                                  may consider it.                           

                 36               See Landers v. Municipality of Anchorage, 915 P.2d 614, 617 (Alaska  


 1996) (holding that party has no duty to continue objecting during trial to challenge  


initial denial of motion in limine on appeal).  


                 37               See Conley v. Alaska Commc'ns Sys. Holdings, Inc., 323 P.3d 1131, 1139  


(Alaska 2014) (holding that moving to exclude evidence in limine only preserves right  


to challenge motion's denial on appeal; party must object at trial to preserve challenges  


to how evidence is used).  


                 38               See id.  at 1136 n.9 (holding that denial of a motion in limine seeking  


exclusion of evidence is reviewed for an abuse of discretion).  


                 39               See id. at 1136.  


                                                                                                         -15-                                                                                                   7231

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

the superior court must weigh the undue prejudice of the character inference against any                                                                               

probative value the evidence has for a permissible purpose under Rule 403.                                                                             40  We will  


not reverse a superior court's balancing under this test unless convinced the "potential  



danger predominated so greatly" as to constitute a clear abuse of discretion. 

                           We have addressed this issue in the context of drug use and personal injury  


before; in Liimatta v. Vest we held that a trial court abused its discretion by excluding  


evidence of the plaintiff's drug use.42                                        In that case the plaintiff sought in a motion in  


limine  to  exclude  her  history  of  drug  abuse  problems.43                                                            The  court  excluded  any  


evidence  of  preaccident  drug  use,  reasoning  that  it  was  unduly  prejudicial.44                                                                               We  


reversed,  reasoning  that  preaccident  drug-seeking  behavior  was  highly  relevant  to  


damages, credibility, and causation, and that excluding evidence bearing on the crux of  



the case was an abuse of discretion.                                        


                           Here  Lindbo's  history  of  drug-seeking  behavior  also  was  relevant  to  


damages, credibility, and causation.  Especially at the pretrial stage, the superior court  


reasonably contemplated that such evidence could show Lindbo's pain and medical  


expenses were incurred because of drug-seeking behavior, and were not caused by  


             40            Id.  

             41            Jones v. Bowie Indus., Inc.                            , 282 P.3d 316, 324 (Alaska 2012) (quoting                                

Brandner v. Hudson                       , 171 P.3d 83, 87 (Alaska 2007)).                                      

             42            45  P.3d  310,  315  (Alaska  2002).  

             43            Id.  at  313.  

             44            Id.  

             45            Id.  at  313-15.  

                                                                                   -16-                                                                            7231

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


Lindley.   The evidence thus "[bore] on the crux of the case"                                                and was "highly relevant       


to the central issues."                                                                                                                             

                                          Under these circumstances, even given the inherent danger that  


evidence of drug use always presents, the superior court did not abuse its discretion by  


denying Lindbo's motion in limine.  

                                                                                                                                                  48  to  


                        Lindbo counters that we should rely on Jones v. Bowie Industries, Inc. 

find an abuse of discretion.   He argues that his case is "even stronger" than Jones's  


because Lindbo's drug history is more remote in time than was Jones's.  But Jones is  


inapposite; the issue in that case was not the length of time between the drug use and the  


injury but the defendant's failure to use the evidence for a permissible purpose.49   Here,  


in contrast, the superior court did not admit the evidence for an improper purpose, rather  


it properly weighed the danger of the character inference against the probative value  of  


the evidence's legitimate purpose.                                The superior  court did  not  err  in weighing  the  


evidence in this way and it did not abuse its discretion by concluding that the probative  


value of the evidence outweighed the danger of unfair prejudice.  


                        Accordingly, we hold that the superior court did not abuse its discretion by  


denying Lindbo's motion in limine.  


                        2.	        Lindbo abandoned his arguments regarding evidence of prior  


                                    injuries and failure to pay child support.  


                        Lindbo contends that the superior court "allowed [Colaska] to discuss  


numerous injuries unrelated to his back in order to show that Lindbo had a history of  


            46          See id.       at 315 (quoting              CNA Ins. Co. v. Scheffey                     , 828 S.W.2d 785, 790              

(Tex. App. 1992)).     

            47          See  id.  

            48          See  282  P.3d  316,  328-31  (Alaska  2012).  

            49          See  id.  at  330-31.  

                                                                         -17-	                                                                   7231

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

exaggerating his injuries."                   He asserts that presenting evidence showing a history of                                   

exaggerating   injuries   is   impermissible   because   it   suggests   that   Lindbo  "acted   in  

                                                                              50  Lindbo also argues that "references  

conformity therewith" for the injury in question.                                                                         

to not paying child support and not working" during Colaska's trial presentation violated  


Alaska Evidence Rule 404(a).  


                      But Lindbo points to no specific examples of testimony or evidence for  


either  issue  demonstrating  his  contentions.                              Nor  does  he  cite  helpful  authorities  


establishing a connection between the presented evidence and his contention that there  


wasan inappropriate admission of character evidence. Because Lindbo has devoted only  


cursory statements to these arguments in his brief, we conclude that the issues are both  



           D.	        The Superior Court Did Not Abuse Its Discretion By Allowing The  


                      Introduction Of A Prior Attempted Vehicle Theft Conviction As A  


                      Crime Involving Dishonesty For Impeachment Purposes.  


                      Lindbo pled guilty in July 2010 to attempted first degree vehicle theft; he  


was convicted of a class A misdemeanor.52  


                                                                         This conviction was admitted at trial for  


impeachment  purposes  as  a  crime  involving  dishonesty.                                         Lindbo  argues  that  this  


admission was improper because the crime of attempted vehicle theft is a "less serious  

           50	        See  Alaska R. Evid. 404(a).       

           51        Adamson  v.  Univ.  of  Alaska ,  819  P.2d  886,  889  n.3  (Alaska  1991)  


("[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."); see Sykes v. Melba Creek Mining, Inc., 952  


P.2d 1164, 1171 (Alaska 1998) ("[C]onclusory briefing of [a] point would warrant a  


finding of abandonment.").  


           52         AS 11.31.100(d)(5) (characterizing attempted class C felony as class A  


misdemeanor); see also AS 11.46.360(a) (outlining crime of vehicle theft).  


                                                                   -18-	                                                            7231

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

offense,"   that   it   is   "more   akin   to   joyriding,"   that  it  "does   not   necessarily   involve  

dishonesty," and that the conviction was more prejudicial than probative.                                               

                         Alaska Evidence Rule 609 states that "[f]or the purpose of attacking the                                                             

credibility of a witness, evidence that the witness has been convicted of a crime is only                                                                   

                                                                                                                                  53   "Evidence . . .  

admissible if the crime involved dishonesty or [a] false statement."                                                                                             

under this rule is inadmissible if a period of more than five years has elapsed since the  


date of the conviction."54                           "[A]  witness may  be impeached  by  evidence of a prior  


conviction" after the court "weigh[s] its probative value against its prejudicial effect."55  


                         Lindbo  first  contends  that  evidence  of  his  conviction  was  improperly  


admitted under Rule 609 because vehicle theft is not a crime involving dishonesty.  


Lindbo argues that because he did not have the intent to permanently deprive he could  


not have committed a crime involving dishonesty.  


                         We disagree with Lindbo's characterization of his prior conviction.  We  


have previously concluded that an intent to deprive is not a mandatory component for  


                                                                                              56   In City of Fairbanks v. Johnson we  

admitting an impeachable offense under Rule 609.                                                                                                               


determined that crimes of dishonesty do not "require[] an intent to permanently deprive"  


to  be  admissible  under  Rule  609.57                                    We  held  that  the  offense  of  concealment  of  


merchandise was a crime involving dishonesty because it "involves some element of  


deceit, untruthfulness[,] or falsification bearing on the accused's propensity to testify  


             53          Alaska  R.  Evid.  609(a).  

             54          Alaska  R.  Evid.  609(b).  

             55          Alaska  R.  Evid.  609(c).  

             56          City  of  Fairbanks  v.  Johnson,  723  P.2d  79,  82  (Alaska   1986).  

             57          Id.   ("We  have  not  held  that   only   an   offense  which  requires   an   intent  to  

permanently  deprive  is  admissible  for  impeachment  purposes."  (emphasis  in  original)).  

                                                                              -19-                                                                        7231

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


 truthfully."                            This   case   is   similar   to   Johnson .     Whether   Lindbo   had   the   intent  to  

permanently  deprive the rightful owner of the vehicle is irrelevant.                                                                                                                         

                                      Lindbo next argues that vehicle theft is not a crime of dishonesty because                                                                                                              

 "a person can be guilty of vehicle theft even if the person honestly, but unreasonably,                                                                                                                    

 believes he has a right to drive the vehicle."                                                                             In other words, Lindbo argues that vehicle                                                          

 theft is not automatically a crime of dishonesty because there is no unreasonable mistake                                                                                                                                     

 of   fact   defense   for   the   honest   offender.     Lindbo may                                                                                            be   correct   on   this   point;   the  

 Commentary to the Alaska Rules of Evidence notes that "modern theft statutes may                                                                                                                                                      

 encompass   criminal   conduct   that   does   not   fall   within   [Federal   Rule   of   Evidence  

 609(a)(2)]" and that courts may have to parse whether the particular crime "involved the                                                                                                                                                   

                                                                                     59  But we do not have to decide here whether vehicle theft  

 deceit envisioned by the rule."                                                                                                                                                                                                        

 is necessarily a crime of dishonesty, nor whether such parsing is appropriate, because  


 Lindbo was convictedofattempted vehicletheft. Anattempt conviction requires specific  


                                                                                  60   Lindbo therefore must have intended to drive the car  

 "intent to commit a crime";                                                                                                                                                                                                               


                    58                See id.             (citing J. M                    OORE, F               EDERAL  PRACTICE, R                                        ULE  PAMPHLET  PART  2, R.   

 609 at 196 (1986)) ("[T]o be guilty of the crime of concealment of merchandise the                                                                                                                                                        

 defendant  must  have   intentionally   hidden   merchandise.     The   intentional   hiding   of  

 merchandise from a merchant involves dishonesty and deceit.                                                                                                                   It therefore may be seen                                 

 as probative of a person's truthful character.").                                                

                    59                Alaska R. Evid. cmt. 609(a) (quoting United States v. Papia, 560 F.2d 827,  


 847 (7th Cir. 1977)).  


                    60                See AS 11.31.100(a) ("A person is guilty of an attempt to commit a crime  


 if, with intent to commit a crime, the person engages in conduct which constitutes a  


 substantial step toward the commission of that crime."); see also Sergie v. State, 105 P.3d  


  1150, 1153-55 (Alaska App. 2005) (explaining that mental state attendant circumstance  


 of  "reckless  disregard  to  the  victim's  consent"  applied  to  attempted  sexual  assault  



                                                                                                                     -20-                                                                                                             7231

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

without believing he had any right or reasonable ground to do so. Lindbo could not have                                                                                                                        

intended to act mistakenly.            

                                  Lindbo alsosuggests that because his                                                        conviction for attempted vehicletheft                                             

was 4 years and 11 months prior to trial, the conviction was too remote in time to be used                                                                                                                     

for impeachment.                               But Rule 609(b) allows for convictions involving dishonesty to be                                                                                                    

used for impeachment purposes unless "                                                                 more  than five years [has] elapsed" since                                                                the  

                                          61        Because  the  trial  occurred  less  than  five  years  after  Lindbo's  

conviction   date.                                                                                                                                                                                

conviction and the superior court properly weighed the probative and prejudicial value  


of admitting the evidence for impeachment purposes,62  we conclude that it was not an  


abuse of discretion to admit the attempted vehicle theft conviction to impeach Lindbo's  




                 E.	              The Superior Court  Did Not  Err  By  Failing  to  Correct Improper  


                                  "Vouching" DuringClosingArgumentsBecauseTheStatements Were  



                                  Lindbo  contends  that  during  closing  arguments  Colaska's  counsel  


improperly alluded to a witness's reason for not testifying at trial.  Colaska's counsel  


implied that one of Lindbo's witnesses, Dr. John Ballard, did not testify at trial "because  


                 61	              Alaska R. Evid. 609(b) (emphasis added).                                               



                                  The superior court gave three reasons why the probative value outweighed  


the prejudicial  effects:                                       (1)  "the offense is a mid-range criminal offense"; (2)  "the  

conviction hassignificant probative value"; and (3) "thecourtcan providean appropriate                                                                                                        


limiting instruction."  The superior court did not clearly abuse its discretion in making  


this determination.  See Johnson, 723 P.2d at 85 ("[I]t is manifest that the draftsmen  

intended   that   the   trial   [court]   be   given   a   very   substantial   discretion   in   'balancing'  

probative value on the one hand and 'unfair prejudice' on the other, and that [it] should                                                                                                                 

not be reversed simply because an appellate court believes that it would have decided the                                                                                                                          


matter otherwise." (first alteration in original) (quoting United States v. Long, 574 F.2d  


761, 767 (3d Cir. 1978))).  

                                                                                                        -21-	                                                                                                 7231

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

he   didn't   have   good   things   to   say."     Lindbo   argues   that   this   constitutes   improper  


                       Weconcludethat                 thesuperior court did noterr becauseColaska'scounsel's                           

statements were not improper vouching.                                  Although counsel may not personally vouch                            

                                                    63 an attorney may suggest that a jury consider the absence  

for the credibility of a witness,                                                                                                         

of certain evidence.64                 Alaska Civil Pattern Jury Instruction 2.23 states the following:  


                       The  evidence  should  be  evaluated  not  only  by  its  own  


                       intrinsic weight but also according to the evidence which is  


                       in the power of one party to produce and of the other party to  


                       contradict. If 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.[65] 


An alternative instruction permits jurors to "consider whether witnesses with more  


knowledge than those called to testify by a party were available to that party and yet  


were not called.  If so, this might suggest a weakness in that party's case."66  


                       When Colaska's  counsel started  discussing  Dr. Ballard  during  closing  


argument, Lindbo's counsel objected.67  Thesuperior courtagreed that Colaska'scounsel  


could not "personally vouch for witnesses," and Colaska's counsel proceeded with  


closing argument.  Colaska's counsel then made the following statement:  


            63         See  Alaska  R.  Prof.  Conduct  3.4(e).  

            64         See  Alaska  Civ.  Pattern  Jury  Instruction  2.23  (rev.   1999).  

            65         Id.  (emphasis  added).  

            66         Id.  

            67         Colaska's  counsel  was  interrupted  by  an  objection  from  Lindbo's  attorney  

after  saying  "[i]f  Dr.  Ballard  was  really  such  a  great  witness  and  he's  really  going  to  say  

anything  positive  .  .  .  ."   

                                                                        -22-                                                                  7231

----------------------- Page 23-----------------------

                                [I]f Dr. Ballard was going to say positive things, why wasn't                                                              

                               he presented to you?                                Why wasn't he called on the phone?                                    

                               Dr. [Andrew] Pankow was called on the phone. Why wasn't                                                                     

                               he presented by video?                                    I'll tell you it's because he didn't                               

                               have good things to                                say.     That's why we got a[n] expert                                   

                               report in there and nothing else.                                           

 Lindbo's counsel did not renew his objection.                                                                

                               Colaska's counsel did not "state a personal opinion as to . . . the                                                                              credibility  

                                68     Colaska's counsel instead "suggest[ed] a weakness" in Lindbo's case  

 of a witness."                                                                                                                                                                                

 for not calling Dr. Ballard to testify.69                                               Because Colaska's counsel's statements were not  


 improper vouching, we conclude that the superior court did not err by failing to correct  


 the statements.70  


                F.	            It Was Not An Abuse Of Discretion To Deny Lindbo's Motion For A  


                               New Trial Based On Alleged Discovery Violations.  


                               Following the verdict Lindbo moved for a new trial.71  The sole basis for  

his motion was the superior court's treatment of the previously undisclosed load sheets;  


 Lindbo argued they "gravely prejudiced [his] ability to present his case."72  


                68             Alaska  R.  Prof.  Conduct  3.4(e)  (emphasis  added).  

                69             Alaska  Civ.  Pattern  Jury  Instruction  2.23.  

                70             Lindbo also vaguely asserts that  the  Dr. Ballard comments were "not  the  

 only  example  of   .   .   .  Colaska  referring  to  information  not  presented  to  the  jury."   His  

 contention  is  not  clear  and  therefore  will  not  be  considered  on  appeal.   See  Adamson  v.  

 Univ.  of  Alaska ,  819  P.2d  886,  889  n.3  (Alaska   1991).  

                71             See Alaska R. Civ. P. 59(a) ("A new trial may be granted to all or any of  

 the parties and on all or part of the issues in an action in which there has been a trial by  


jury  or in an action tried without a jury,  if required in the interest of justice.").  


                72             In his motion  for a new trial Lindbo elaborated on his position that the  


 superior court's decisions violated Civil Rules 26(a) and 37(c)(1).  


                                                                                                -23-	                                                                                        7231

----------------------- Page 24-----------------------


                    We recognize that with his motion Lindbo attached an affidavit from his  


fiancée - produced 12 days after closing arguments - attesting that Lindbo did not  


work  on  September  8.              According  to  his fiancée,  Lindbo  was with her  first at the  


Ketchikan hospital and then on a medivac flight to Anchorage, where she gave birth to  

their twins.  The motion included Lindbo's telephone records demonstrating 911 calls  


placed at 4:29 a.m. and 4:35 a.m. that morning, suggesting the calls were placed due to  


the medical situation.  An attached transport data form also showed that Lindbo was at  


least a "potential rider" on a medivac flight departing Ketchikan at approximately 10:00  




                    But  the  superior  court  observed  that  Lindbo  had  received  a  call  from  


Karlson at 4:32 a.m., and that the September 8 load sheet showed Lindbo picked up and  


dropped  off  his  material  loads  from 5:45  a.m.  to  7:41  a.m.                            The  court  reasonably  


surmised -absent any other explanation fromLindbo -thatKarlsonhad called Lindbo  


to work that morning.  The court also expressed that based on evidence Lindbo used to  


support his motion, he could have "been at work and later at the hospital that morning."  


Because the superior court's explanation of events is not unreasonable, we conclude that  


the superior court did not abuse its discretion in denying Lindbo's motion for a new trial.  

V.        CONCLUSION  

                    We AFFIRM the superior court on all issues.  


                                                             -24-                                                        7231

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