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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. J.G. Pattee, Inc. (9/21/2018) sp-7301

Johnson v. J.G. Pattee, Inc. (9/21/2018) sp-7301

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

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

          corrections@akcourts.us.  



                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



LYDIA  JOHNSON,  individually                                 )  

and  as  personal  representative  for  the                   )   Supreme Court No. S-16303  

                                                                                                

ESTATE  OF  DAVY  JOHNSON,                                    )  

                                                              )   Superior  Court  No.  3AN-11-10280  CI  

                            Appellant,                        )  

                                                              )                      

                                                                  O P I N I O N  

         v.                                                   )  

                                                                                                          

                                                              )   No. 7301 - September 21, 2018  

                                                              )  

J.G. PATTEE, INC.; MATTHEW  

                                                              )  

OBERLANDER; and JOHN G. PATTEE,   

                                                              )  

                            Appellees.	 	                     )  

                                                              )  



                                                                                                 

                               rom the Superior Court of the State of Alaska, Third  

                   Appeal f 

                                                                                   

                   Judicial District, Anchorage, Paul E. Olson, Judge.  



                                                                                                  

                   Appearances:  Jeffrey J. Barber, Barber & Associates, LLC,  

                                                                                                      

                   Anchorage, for Appellant.  Darryl L. Thompson, Darryl L.  

                                                                    

                   Thompson, P.C., Anchorage, for Appellees.  



                                                                                              

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

                                      

                   and Carney, Justices.  



                                      

                   WINFREE, Justice.  

                                               

                   BOLGER, Justice, dissenting.  



I.        INTRODUCTION  



                                                                                                                        

                   During a personal injury trial the defense expert witness varied from his  



                                                                                                                        

written report, expressing new opinions to justify a bar employee's use of force.  In his  



                                                                                                                        

report the  expert had  described the  force as a reasonable  defensive tactic;  at trial he  


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

                                                                                                                               

testified  in  addition  that  the  bar  employee  was  confronting  the  plaintiff  at  the  bar  



                                                                                                                               

entrance, that the bar had a duty to keep the entrance safe and clear, that local police rely  



                                                                                                                                   

on bar personnel to keep the area safe and clear, and that the bar employee was using a  



                                                                                                                           

reasonable "soft hand escort hold" when the incident occurred. The plaintiff then sought  



                                                                                               

to cross-examine the expert with grand jury testimony by an Anchorage police officer  



                                                                                                                               

- testimony the expert had been given to review prior to writing his report - that was  



                                                                                                                             

contrary to key points of the expert's new opinions.  The superior court refused to allow  



                                                                                                                                 

this cross-examination, telling the plaintiff that she could try to call the officer as an  



                                                                                                                                

expert witness.  The plaintiff later tried to call the officer as a hybrid expert witness, but  



                                                                                                                        

the defendants objected because he was not on the plaintiff's witness list.  The superior  



                                                                                                                               

court then refused to allow the officer to testify.  The jury found the bar employee was  



                                                                                    

justified in using reasonable force to defend against a trespass.  



                           

                     On appeal the plaintiff argues that the superior court erred by precluding  



                                                                                                                         

her cross-examination of the expert and her calling the officer to testify as a rebuttal  



                                                                                                                                

witness.  Because we conclude it was a prejudicial abuse of discretion to preclude the  



                                                                                                                               

officer from testifying as a rebuttal witness with respect to the defense expert's new and  



                                                                                                                         

unexpected trial opinions, we vacate the judgment and remand for a new trial without  



                                                  

reaching the cross-examination issue.  



                                  

II.        FACTS AND PROCEEDINGS  



                                                             

          A.         Davy Johnson's Injury; Lawsuits  



                                                                                                                        

                     Davy Johnson suffered askull fractureafter hitting hishead on thesidewalk  



                                                                                                                        

during an incident outside an Anchorage bar. Matthew Oberlander, a bartender assisting  



                                                                                                                     

the bar's security, had been told by the bar's general manager that Davy was prohibited  



                                                                                                                             

from reentering the bar or obstructing its doorway.  When Davy refused to move from  



                                                              

his position on the sidewalk outside the bar's entrance, Oberlander pushed Davy, who  



                                                                

fell backward and struck his head on the sidewalk.  



                                                                -2-                                                         7301
  


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                                                                Davy filed suit against the bar's owner, J.G. Pattee, Inc., its dominant                                                                                                                                                                                                                                         



 shareholder, John G. Pattee (collectively Pattee), and Oberlander for negligently or                                                                                                                                                                                                                                                                   



recklessly causing Davy's injuries.                                                                                                                                             Following Davy's death about a year later, the                                                                                                                                                                                 



parties   stipulated   to   the   substitution   of   his   wife,   Lydia   Johnson,   the   personal  



representative of his estate, in the lawsuit.                                                                                                                                                                  Lydia also filed a separate suit against the                                                                                                                                                     



 same defendants in her individual capacity; the superior court later consolidated the                                                                                                                                                                                                                                                                                                                          



cases.  



                                B.	 	                            Oberlander'sAssault                                                                                         Charge; OfficerWitte's                                                                                                    GrandJury                                                     Testimony;  

                                                                 Protective Order   



                                                                 Oberlander was charged with criminal assault arising from the incident.                                                                                                                                                                                                                                                                                             



Gregory Witte, a police officer who arrived at the scene, testified before the grand jury.                                                                                                                                                                                                                                                                                                                                           



Witte   had   not   witnessed   Oberlander's   push   or   Davy's   fall,   but   Witte   later  viewed  



 security camera footage of the incident and testified that Oberlander had pushed Davy                                                                                                                                                                                                                                                     



up and out from beneath his rib cage to get him off balance.  Witte testified that Davy                                   



was "clearly standing on the sidewalk portion [that] everybody has a right to walk down"                                                                                                                                                                                                                                                                                                        



and that, if he was "causing . . . a problem in the public area," the police should have                                                                                                                                                                                                                                                                                                                



been called.                                                Following Oberlander's acquittal of the assault charge, the superior court                                                                                                                                                                                                                                                                 



issued   a protective order                                                                                                   precluding   the parties "from introducing any                                                                                                                                                                                        evidence or   



testimony that could lead the jury to conclude that Oberlander was arrested, indicted and                                                                                                                                                                                                                                                                                                                      



criminally prosecuted."                                                                                            



                                 C.	 	                           Preliminary   Witness   List;   Motions   In   Limine   To   Strike   Police  

                                                                 Officers' Testimony; Final Witness List                                                                                                                                               



                                                                Lydia's preliminary witness list identified two police officers other than                                                                                                                                                                                                                                                                



Witte and "[a]nyone . . . attached to troopers or the Anchorage Police Department or                                                                                                                                                                                                                                                                                                                                 



other police agencies [to] testify to liability and give 'other expert opinions' as to why                                                                                



any defendant is liable for negligence                                                                                                                                                        . . . and other opinions."                                                                                                         Oberlander filed a                                                                      



                                                                                                                                                                                                          -3-	                                                                                                                                                                                           7301
  


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

pretrial   motion   to   limit   the   named   officers'   opinions.     Pattee   separately   moved  to  



preclude the officers from testifying as experts at all, contending they were merely lay                                                                                                                                                                                                                                                                                                                                                       



witnesses "in the exact same position as the jurors to evaluate the video." Lydia opposed                                                                                                                                                                                                                                                                                                                           



both motions, arguing that she did not "expect to call police officers unless necessary in                                                                                                                                                                                                                                                                                                                                                           



rebuttal" and that it would be premature and improper to preclude the officers from                                                                                                                                                                                                                                                                                                                                                 



testifying as experts.                                                                                      The superior court denied both motions.                                                                                                                                                                            Lydia's final witness list                                                                                       



did not include any police officers, but it did list "[a]ny proper rebuttal witness."                                                                                                                                                                                                                                                                                                                                               



                                   D.                                Examination Of The Defense Expert                                                                                                                                  



                                                                     After reviewing video of the incident, the grand jury transcript, and other                                                                                                                                                                                                                                                                                    



documents, the defense expert, retired Bellevue, Washington police chief Donald Van  



Blaricom, issued a report stating that "Oberlander did not use excessive force" and that                                                                                                                                                                                                                                                                                                                                                    



when he pushed Davy it was "an appropriate defensive tactic."                                                                                                                                                                                                                                                                                    The report made no                                                                              



mention of the bar's responsibility to keep the sidewalk area around its entryway safe                                                                                                                                                                                                                                                                                                                                                   



 and   clear   or   whether   Oberlander's   use   of   force   was   appropriate   to  keep   the   bar's  



 entryway clear or to stop Davy from reentering the bar.                                                                                                                                                                                                                                         



                                                                     During the defense case-in-chief, Pattee's counsel asked Van Blaricom a   



 series of questions about whether, in his experience, a bar is responsible to keep the area                                                                                                                                                                                                                                                                                                                                              



 around its entryway safe and clear.  Van Blaricom responded, "Yes. . . . [y]ou have to  



keep it clear . . . for safety and other reasons."                                                                                                                                                                                                              Lydia's counsel asked for a bench                                                                                                                             



conference outside the jury's presence and objected that Van Blaricom was testifying to                                                                                                                                                                                                                                                                                                                                                              



opinions not disclosed by and outside the scope of his expert report, which had been                                                                                                                                                                                                                                                                                                                                                  



marked as an exhibit.                                                                                            Lydia's counsel argued in part:                                                                                                                                        "There's nothing in here [- by                                                                                                                            



clear implication VanBlaricom'sexpert report -] where Mr. Van Blaricomis indicating                                                                                                                                                                                                                                                                                                                         



that sidewalk that the bar had a responsibility to keep clear, there's nothing in here                                                                                                                                                                                                                                                                                                                                                 



 supporting what the basis of his opinions in that regard might be, anything about the                                                                                                                                                                                                                                                                                                                                                        



location . . . ."                                                          The court responded:                                                                                                 "I don't quite understand, what is your objection                                                                                                                                                              



                                                                                                                                                                                                                         -4-                                                                                                                                                                                                           7301
  


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

                                                                                                                               

though?"  Counsel replied:  "My objection is to his opinion about whether [Davy] was  



                                                                                                     

entitled to be where he was at the time is beyond the scope of his report."  



                                                                                                                                 

                    The court overruled the objection.  In response to further questioning by  



                                                                                                                                 

Pattee's counsel, Van Blaricom then said that a bar has a general obligation to keep its  



                                                                                                                               

entryway safe and clear and reitrated that "[y]ou have to keep the entryway clear."  Van  



                                                                                                                          

Blaricom later testified that Oberlander had used reasonable force "to clear that space,"  



                                                                                                                                

describing the push as "a soft hand hold, an escort hold," and that Oberlander, as a bar  



                                                                                                                                

employee, had "a duty to move [Davy] out of that area" to prevent Davy blocking the  



                                                                                                                               

bar's entryway. Van Blaricom then further explained that "police rely on bartenders and  



                                                                                                                       

the bar personnel to keep that area clear. . . . [T]his is something that has to be resolved,  



                                                         

after all they are trying to conduct a business."  



                                                                                                                 

                    Given the protective order shieldingthejury fromevidenceofOberlander's  



                                                                                                                            

prior criminal proceedings, Lydia's counsel made an offer of proof outside the jury's  



                                                                                                              

presence  of  Witte's  "contrary"  grand  jury  testimony  and  sought  to  cross-examine  



                                                                                                                        

Van Blaricom "to undermine the credibility and the basis of his report and the findings  



                                                                                                                     

and some of the testimony" he provided on direct examination. Van Blaricomresponded  



                                                                                                                                 

that he did not recall whether he had reviewed Witte's grand jury testimony, that he  



                                                                                                                               

"would pay absolutely no attention to the officer's interpretation of the video," and that  



                                                                                                                    

Davy "didn't have a right to be on the sidewalk where he was blocking the entrance."  



                                                                                                                                  

                    Oberlander's counsel objected to Lydia's "use [of] Witte's testimony to  



                                                                                                                               

impeach [Van Blaricom] . . . as if he's another expert."  Lydia's counsel argued that  



                                                                                                                    

Witte's grand jury testimony was relevant to undermine the accuracy of Van Blaricom's  



                                                                                                                      

expert report and opinions. The court precluded the use of Witte's grand jury testimony  



                                                                                                                      

in cross-examination.  The court explained, however, that Lydia could try to introduce  



                                                                                                                  

Witte's opinion elsewhere, such as "try[ing] to call [Witte] as an expert," recognizing  



                                                                                                                                  

that it would have to "deal with the objections for failure to [list] him as an expert."  



                                                                -5-                                                         7301
  


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

                    Following the court's ruling, Lydia's counsel reiterated the necessity of  

                                                                                                                                



using Witte's grand jury testimony to challenge Van Blaricom's trial testimony that the  

                                                                                                                               



force Oberlander used was reasonable to prevent Davy from trespass, rather than, as  

                                                                                                                                



Van Blaricom's earlier expert report had concluded, that the force used was reasonable  

                                                                                                                    



to create defensive space.  Lydia's counsel argued that Van Blaricom did not initially  

                                                                                                                        



come to this "easier" conclusion of trespass in his report because of Witte's grand jury  

                                                                                                                              



testimony  and  that  using  Witte's  grand  jury  testimony  in  cross-examination  was  

                                                                                                                             



necessary to challenge Van Blaricom's change of opinion.  The court again ruled that it  

                                                                                                                                  



was "not going to allow it."  

                                            



          E.        Preclusion Of Witte From Testifying In Rebuttal  

                                                                                      



                    After the defense case closed, Lydia informed the court that Witte was  

                                                                                                                              



under subpoena to testify and that she "still intend[ed] to offer him for his hybrid witness  

                                                                                                                         



opinions . . . [of] his evaluation of the video . . . [and] regarding the issue with the  

                                                                                                                               



sidewalk and whose responsibility it was to clear the sidewalk."  Oberlander objected,  

                                                                                                   



arguing that Witte was not on Lydia's final witness list, that he was not an expert, and  

                                                                                                                   



that his "hybrid expert testimony" was "inappropriate" rebuttal testimony because it  

                                                                                                                                 



would only "bolster an opinion from an officer" providing hybrid legal testimony.  In  

                                                                                                                                



response to the court's observation that "[i]t sounds like you're trying to call him as an  

                                                                                                                                



expert witness," Lydia explained that Witte would be a hybrid witness. The court denied  

                                                                                                                          



Lydia's request to call Witte as a rebuttal witness.  

                                                                               



          F.        Verdict; Appeal  

                                    



                    The jury returned a defenseverdict, finding the"defendants [were] justified  

                                                                                                                        



in using reasonable force in defense of attempted trespass." The court entered judgment  

                                                                                                                      



against Lydia.  

                       



                                                               -6-                                                         7301
 
 


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

                                  Lydia appeals, arguing that the superior court erred by precluding cross-                                                             



examination of Van Blaricom using Witte's grand jury testimony and by precluding                                                                                            



Witte from testifying as a rebuttal witness.                                                                  



III.	 	  STANDARD OF REVIEW                                      



                                  We generally review the superior court's "decision to admit or exclude                                                                                                



evidence, including expert witness testimony, for abuse of discretion and will . . . reverse                                                                                                             



                                                                                                                                                                                              1  

an erroneous decision [only] if it affected the substantial rights of a party."                                                                                                                   



IV.	 	  DISCUSSION  



                                                                                                                                                                                                                      

                 A.	 	            It Was An Abuse Of Discretion To Preclude Witte From Testifying As  

                                                                                                                                                                                                                  

                                  A Rebuttal Witness On The New Issue Of Police Reliance On Bar  

                                                                                                                                                                                       

                                  Employees To Remove Unwelcome Patrons From Bar Entrances.  



                                                                                                                                                                                                                       

                                  Van Blaricom testified that Oberlander had "a duty" to move Davy out of  



                                                                                                                                                                                                                       

the bar's entryway and that "police rely upon the bartenders and the bar personnel to  



                                                                                                                                                                                                            

keep that area clear."  This was well beyond the scope of Van Blaricom's expert report,  



                                                                                                                                                                                                              

which concluded only that Oberlander "did not use excessive force" because the "push  



                                                                                                                                                                                                                      

 [wa]s an appropriate defensive tactic to gain space for time to react to whatever an  



                                                                                                                                                                                                                       

intoxicated adversary may do next."  Van Blaricom's testimony was also contrary to  



                                                                                                                                                                                                                

Witte's grand jury testimony that "when [Davy was] standing on a public right of way,  



                                                                                                                                                                                                                    

the bar doesn't have any more right to enforce that than you or I do" and that the  



                                                                                                                                                                                                                       2  

                                                                                                                                                                                                        

appropriate protocol to deal with "a problem in the public area" is to "call the cops."   



                 1                Cartee v. Cartee, 239 P.3d 707, 721 (Alaska 2010) (first citing  Nelson v.  



Progressive Corp.                              , 976 P.2d 859, 865 n.9 (Alaska 1999); then citing                                                                           Dobos v. Ingersoll                             ,  

9 P.3d 1020, 1023 (Alaska 2000)).                                                          



                 2                Pattee and Oberlander argue that Witte's "proffered opinion regarding the  

                                                                                                                                                                                                                     

public nature of the sidewalks and who controls the sidewalk were questions of law and  

                                                                                                                                                                                                                    

experts are not allowed to testify as to conclusions of law."  Analysis of the sidewalk as  

                                                                                                                                                                                                                       

a public right of way may be an impermissible conclusion of law or it may be a mixed  

                                                                                                                                                                                                           

                                                                                                                                                                                          (continued...)  



                                                                                                           -7-	                                                                                                 7301
  


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

                                                  It is evident from the record that Lydia made clear to the court the basis for                                                                                                                                                                                        



her argument to present Witte's testimony.  When Van Blaricom first began testifying                                                                                                                                                                                                          



about a bar's obligation to keep the entryway safe and clear, Lydia objected that this line                                                                                                                                                                                                                          



of opinion was outside the scope of Van Blaricom's expert report.                                                                                                                                                                                                    The report was                               



marked as an exhibit and Lydia explained to the court the limits of Van Blaricom's                                                                                                                                                                                                      



written   opinions.    When   the   court   later   would   not   allow   Lydia's   proposed   cross- 



examination of Van Blaricom with Witte's grand jury testimony, the court said that                                                                                                                                                                                                                                 



Lydia could try to call Witte as an expert, subject to the objection that he was not on her                                                                                                                                                                                                                           



witness list.                                  Lydia then emphasized to the court that Van Blaricom had changed his                                                                                                                                                                                                   



opinion from self-defense - in his written report - to response to trespass - as he                                                                                                                                                                                                                                      



would ultimately testify at trial - as a result of Witte's grand jury testimony.                                                                                                                                                                                                             The court   



again denied the cross-examination effort.                                                                                                                     



                                                  After the close of the defendants' cases, Lydia advised the court that she                                                                                                                                                                                         



intended to call Witte to testify as a rebuttal witness.                                                                                                                                          The offer was, in part, for a hybrid                                                                 



expertwitness opinion regarding whose responsibility it was to clear the sidewalk around                                                                                                                                                                                                                 



the bar; in other words, where the bar ended and the public sidewalk began based on                                                                                                                                                                                                                                     

                                                                                                                                                            3       This was the same point Lydia had raised  

Witte's knowledge of patrolling the area.                                                                                                                                                                                                                                                                  



earlier in the trial during her attempt to cross-examine Van Blaricom with Witte's grand  

                                                                                                                                                                                                                                                                                                             



                         2                        (...continued)  



                                                                                                                                                                                                                                                                                                                   

question of fact and law. But to the extent Witte's testimony would have challenged Van  

                                                                                                                                                                                                                                                                                                                           

Blaricom's opinion that "police [officers] rely upon bartenders and the bar personnel to  

                                                                                                                                                                                                                                                                                                      

keep that area clear," the opinion would not be a legal conclusion but rather Witte's  

understanding of Anchorage police officers' role in moving or redirecting unwelcome  

                                                                                                                                                                                                                                                                                        

bar patrons from an establishment's entrance.   Witte's understanding or experience  

                                                                                                                                           

would be permissible hybrid witness testimony.  



                         3                        See Getchell v. Lodge, 65 P.3d 50, 55-57 (Alaska 2003) (concluding police  

                                                                                                                                                                                                                                                                                                            

officer's "fact"and "expert"testimony constitutedhybrid expert testimony subject toand  

                                                                                                                                                                                                                                                                                                                      

permissible under Evidence Rule 702).  

                                                                                                                              



                                                                                                                                                            -8-                                                                                                                                                 7301
  


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

                                                       4  

jury testimony.   After Oberlander and Pattee objected that Witte's name was not on a                                                                                                                               



                                                                                                                                                                                            5  

 witness list, the court refused to allow his testimony.                                                                                                                                        



                                                But Lydia's failure to disclose Witte on her witness list does not necessarily  

                                                                                                                                                                                                                                                                             



 preclude Witte fromtestifying. "The standard for determining whetherarebuttal witness  

                                                                                                                                                                                                                                                                                          



 should be allowed to testify when the witness's name was not timely identified . . . [is]  

                                                                                                                                                                                                                                                                                                 



  'dependent on whether the testimony sought to be rebutted could reasonably have been  

                                                                                                                                                                                                                                                                                                   

 anticipated prior to trial.' "6  Prior to trial Lydia could not have reasonably anticipated  

                                                                                                                                                                                                                                   



 Van Blaricom's testimony that Oberlander had a duty to move Davy out of the entryway  

                                                                                                                                                                                                                                                                                   



 area and that police rely upon a bar and its personnel to keep the bar's entryway clear  

                                                                                                                                                                                                                                                                                                  



                        4                       We disagree with the dissent's viewthatLydia's appeal is forfeited because                                                                                                                                                              



 her attorney did not again express to the superior court that Van Blaricom had testified                                                                                                                                                                                              

 to opinions outside the scope of his expert witness report and that the rebuttal testimony                                                                                                                                                                                      

 was necessary to respond to the new opinions.                                                                                                                       Neither Pattee nor Oberlander made this                                                                                           

 argument to us in their appellee briefs, so Lydia never had a reason to address it.                                                                                                                                                                                                          But it   

 seems   clear  from the                                                         record   that   Van   Blaricom wrote                                                                                      a   report   with   limited   expert  

 opinions; the report was marked as an exhibit at trial; defense counsel elicited new                                                                                                                                                                                                              

 opinions from Van Blaricom during the defense case-in-chief; Lydia's counsel objected                                                                                                                                                                                                

 and pointed to the expert report, but was overruled; Van Blaricom testified that his new                                                                                                                                                                                                            

 opinions were not in the report; and, when Lydia's counsel sought to have a contested                                                                                                                                                                                     

 rebuttal witness testify - a witness whose name was bandied about in connection with                                                                                                                                                                                                               

 Van Blaricom's new opinions during the testimonial disputes - the parties and the court                                                                                                                                                                                                          

 knew the context for the rebuttal witness offer.                                                                                                                            This likely explains why Pattee and                                                                                      

 Oberlander did not make the new argument raised sua sponte by the dissent.                                                                                                                                                                          



                         5                      Although the defendants also argued that Witte was an improper hybrid  

                                                                                                                                                                                                                                                                                           

 expert, the superior court expressed its familiarity with  Getchell and focused on the  

                                                                                                                                                                                                                                                                                                        

 witness list issue.  

                                          



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

                                                                                                                                                                                                                                                                               

 in original) (quoting City of Kotzebue v. McLean, 702 P.2d 1309, 1315 (Alaska 1985)).  

                                                                                                                                                                                                                                                                                         



                                                                                                                                                      -9-                                                                                                                                         7301
  


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

                                                                                                                                                                       7  

and safe, because those opinions were not included in his expert report.                                                                                                   Rather, the   



theory of the bar's duty was presented for the first time in the defense's case-in-chief by                                                                                                      



Pattee's counsel eliciting Van Blaricom'scorroboratingtestimonyon direct examination.                                                                                                                   



                               Based on Witte's grand jury testimony, his expert trial testimony would                                                         



have been proper rebuttal testimony.                                                  "[R]ebuttal testimony is any competent evidence                                             



which explains, is a direct reply to, or a contradiction of material evidence introduced by                                                                                                      

                                                                8    Witte's expected trial testimony, as an Anchorage police  

 . . . a party in a civil action."                                                                                                                                                      



officer, may have enlightened the jurors to the credibility of Van Blaricom's contrary  

                                                                                                                                                                                   



opinion.  It was an abuse of discretion to preclude Witte from testifying as a rebuttal  

                                                                                                                                                                                   



witness.  



               B.              The Error Was Not Harmless.  

                                                                                

                               We must next decide whether the error was harmless.9  We "will . . . reverse  

                                                                                                                                                                                     

an erroneous decision [only] if it affected the substantial rights of a party."10                                                                                               The error  

                                                                                                                                                                                           



in refusing to permit Witte to provide rebuttal testimony had "substantial influence on  

                                                                                                                                                                         

the  verdict"11   because  Witte's  testimony  directly  addressed  the  only  issue  the  jury  

                                                                                                                                                                                            



               7               See id.           



               8  

                                                                                                                                                                                           

                              Id. at 1277 (quoting Riffey v.Tonder, 375 A.2d 1138, 1145 (Md. Spec. App.  

                                                                                                                             

 1977); 6 Wigmore, Evidence  1873 (Chadbourn rev. 1976)).  



               9               See Jones v. Bowie Indus., Inc., 282 P.3d 316, 328 (Alaska 2012) (stating  

                                                                                                                                                                                     

that "[e]ven though admission of evidence is erroneous, we will reverse only if the error  

                                                                                                                                                                                           

was not harmless" (citing Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007))).  

                                                                                                                                                                       



                10             Cartee  v.  Cartee,  239  P.3d  707,  721  (Alaska  2010)  (citing Dobos  v.  

                                                                                                                                                                                                 

Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000)).  

                                                                                                         



                11             See Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 353 (Alaska  

                                                                                                                                                                                    

2012) ("The test for determining whether an error was harmless is 'whether on the whole  

                                                                                                                                                                                         

record the error would have had a substantial influence on the verdict of a jury of  

                                                                                                                                                                                                 

                                                                                                                                                                       (continued...)  



                                                                                              -10-                                                                                        7301
  


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

ultimately decided on the special verdict form: whether the "defendants [were] justified                                                                                                                                           



in using reasonable force in defense of attempted trespass."                                                                                                                 Witte's rebuttal testimony                      



could have assisted the jury in deciding whether Oberlander should have contacted the                                                                                                                                                            



police to remove Davy from the sidewalk in front of the bar's entrance rather than using                                                                                                                                                  



forceto                moveDavyhimself. Becausetheerroneousdecision                                                                                                        affectedLydia'ssubstantial                       

rights, it is not harmless error.                                                      12  



V.                  CONCLUSION  



                                       The superior court's final judgment is VACATED, and we REMAND for  

                                                                                                                                                                                                                                                  



a new trial.  

                   



                    11                 (...continued)  



                                                                                                                                                                                                                              

reasonable lay[people].' " (alteration in original) (quoting Noffke v. Perez, 178 P.3d  

                                                                     

 1141, 1147-48 (Alaska 2008))).  



                    12                 Because we are reversing on this issue, we do not need to address Lydia's  

                                                                                                                                                                                                                                    

other claims on appeal.  

                                                                     



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

BOLGER, Justice, dissenting.                                                          



                                                            The court's opinion                                                                            reverses this                                                    judgment based                                                             on Lydia Johnson's                             



appellate   argument   that   Donald   Van   Blaricom's   testimony   could   not   have   been  



anticipated prior to trial.                                                                                      But Lydia did not make this argument to the superior court                                                                                                                                                         



when she offered Officer Witte's rebuttal testimony, and the superior court did not rule                                                                                                                                                                                                                                                                                            



on this argument at that time.                                                                               



                                                            Lydia   offered   two   reasons   when   she   asked   to   call   Witte   as  a   rebuttal  



witness.  First, she asked to call him "simply based on his experience and training, his                                                                                                                                                                                                                                                       



evaluation of the video for example, to testify in accordance with his observations which                                                                                                                                                                                                                                                                                 



he did during the grand jury testimony in this particular instance."                                                                                                                                                                                                                                                 Second, she was                                               



"offering his testimony regarding the issue with the sidewalk and whose responsibility                                                                                                                                                                                                                                                  



it was to clear the sidewalk, or you know, basically be responsible for where the bar                                                                                                                                                                                                                                                                                                 



ended and where the sidewalk and the public sidewalk began."                                                                                                                                                                                            



                                                            Lydia did not mention Van Blaricom at all when she made this request.                                                                                                                                                                                                                                                                         



And she did not provide the judge with sufficient information to determine whether she                                                                                                                                                                                                                                                                                                



had been surprised by Van Blaricom's testimony.                                                                                                                                                                                   In particular, there was no showing                                                                           



that Lydia ever provided the judge with a copy of Van Blaricom's report.                                                                                                                                                                                                                                     



                                                            To preserve an issue for appeal, a party must raise the issue in the trial court                                                                                                                                                                                                                                   

                                                                                                                                                                        1       In particular, a party who offers evidence based  

and specify the grounds for doing so.                                                                                                                                                                                                                                                                                                                                       



on  one  theory  of  admissibility  may  not  argue  a  "substantially  different"  theory  on  

                                                                                                                                                                                                                                                                                                                                                                                        

appeal.2                                 "This preservation rule serves 'important judicial policies:  ensuring that there  

                                                                                                                                                                                                                                                                                                                                                                               



is "a ruling by the trial court that may be reviewed on appeal, . . . afford[ing] the trial  

                                                                                                                                                                                                                                                                                                                                                                                   



                              1                             Ivy  v.  Calais  Co.,  397  P.3d  267,  276  (Alaska  2017).  



                              2                             Jones  v.  Bowie  Indus.,  Inc .,  282  P.3d  316,  339  (Alaska  2012).  



                                                                                                                                                                                          -12-                                                                                                                                                                                                      7301  


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

court the opportunity to correct an alleged error," and creating a sufficient factual record                                                                                                                

so "that appellate courts do not decide issues of law in a factual vacuum." ' "                                                                                                                 3  



                                  I agree that Lydia had previously objected that Van Blaricom's testimony  

                                                                                                                                                                                                   



was outside the scope of his report.  In my opinion, however, Lydia was required to  

                                                                                                                                                                                               



explicitly state her arguments for admission of Witte's rebuttal testimony.  At that time,  

                                                                                                                                                                                                               



if she had raised the argument that Van Blaricom's testimony could not reasonably have  

                                                                                                                                                                                                                

been anticipated, then she could have made an offer of proof to support her argument.4  

                                                                                                                                                                                                                              



Then the defendants could have responded to her argument, and the superior court could  

                                                                                                                                                                                                              



have ruled on it.  Lydia is not entitled to a new trial because she did not bring this issue  

                                                                                                                                                                                                               



to the superior court's attention.  

                                                          



                 3                Ivy, 397 P.3d at 276 (quoting                                                Johnson v. State                           , 328 P.3d 77, 82 (Alaska                     



2014) (omission in original) (alteration in original)).                                                     



                 4                Alaska R. Evid. 103(a)(2).  

                                                                            



                                                                                                         -13-                                                                                                  7301
  

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