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Snyder v. J. Foote & Tanana Valley Med/Surg. Group, Inc. (12/13/91), 822 P 2d 1353
<![CDATA[
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JENNIFER R. SNYDER, a minor, )
and KENNETH O. SNYDER, and )
RHONDA SNYDER, parents of )
JENNIFER R. SNYDER, a minor, )
) Supreme Court No. S-3756
Appellants, )
v. ) Superior Court No.
) 4FA-88-908 Civil
J. TIMOTHY FOOTE, M.D., and )
TANANA VALLEY MEDICAL-SURGICAL)
GROUP, INC., )
) O P I N I O N
Appellees. )
______________________________) [No. 3787 - December 13, 1991]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Jay Hodges, Judge.
Appearances: Kenneth W. Legacki,
Anchorage, and Donovan R. Flora, Longfelder,
Tinker, Kidman & Flora, Inc., P.S., Seattle,
Washington, for Appellants. Marcus R. Clapp
and David F. Leonard, Hughes, Thorsness,
Gantz, Powell & Brundin, Fairbanks, for
Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
A jury returned a defense verdict in a medical
malpractice suit. The Snyders appeal the admission of certain
evidence. We reverse.
I.
The parties do not dispute the relevant underlying
facts. On July 6, 1987, Jennifer Snyder's parents took her to
see Dr. Timothy Foote, a pediatrician. Jennifer was six years
old, and was complaining of abdominal pain. Dr. Foote diagnosed
Jennifer as having gastroenteritis.
Dr. Foote's diagnosis was incorrect; in fact, Jennifer
had a ruptured appendix. On July 9, Jennifer returned to the
clinic and later that day entered Fairbanks Memorial Hospital.
Her appendix was removed the following morning. The infection in
Jennifer's abdomen, or peritonitis, was quite advanced. Jennifer
later returned to the hospital and was operated on for a bowel
obstruction. The bowel obstruction was caused by the
peritonitis. Moreover, because of the peritonitis and consequent
scarring in her abdomen, Jennifer is probably at risk for future
bowel obstructions and sterility.
On April 27, 1988, Jennifer and her parents (the
Snyders) filed a medical malpractice suit against Dr. Foote.
Pursuant to AS 09.55.536 and Civil Rule 72.1, the superior court
appointed an expert advisory panel (Panel) on December 19, 1988.
Three Fairbanks physicians were appointed to the Panel, a
pediatrician, a surgeon, and an emergency services doctor. While
AS 09.55.536 requires the Panel to issue a report within thirty
days, because of certain delays, the superior court notified the
Panel that its report was due on March 10, 1989. The Panel
issued a report on March 3, 1989, which was written and signed by
just one panel member, Dr. Rundquist, the pediatrician. This
report was filed with the court, but it was not on a prepared
form. The report contained both criticism and exculpation of Dr.
Foote.
The Panel issued a more formal report on April 2, 1989.
This report was in a question and answer format, containing the
questions enumerated in AS 09.55.536(c).1 This second report was
generally favorable to Dr. Foote.
On April 14, 1989, the Snyders moved to strike the
second report of the Panel on the bases that it was untimely,
that there was already a Panel report, and that Dr. Rundquist was
professionally acquainted with Dr. Foote. The motion noted
that the report was issued on April 2, approximately five months
after the appointment of the Panel, and that trial was set for
May 15. The Snyders argued that this afforded them insufficient
time to prepare, especially in light of the fact that many
pretrial deadlines, such as the listing of expert witnesses, had
passed. The superior court denied the Snyders' motion to strike
the Panel's April 2 report and to exclude testimony of the
members of the Panel.
On May 11, the Snyders moved for reconsideration on the
basis that Dr. Rundquist and Dr. Foote had a financial
relationship which made it Dr. Rundquist's duty to recuse himself
from the Panel. The Snyders asserted that Dr. Rundquist used Dr.
Foote's clinic as relief for on-call coverage when Dr. Rundquist
was unavailable, and that a second doctor on the Panel treated
Dr. Foote's attorney's wife. The superior court denied the
motion for reconsideration.
Prior to trial the Snyders had informed Dr. Foote that
they intended to call Dr. Alan Done as an expert witness.
Thereafter, the Snyders learned that Dr. Foote planned to impeach
Dr. Done at trial, with findings of fact made by a trial court of
another jurisdiction. As a consequence, the Snyders filed a
motion for a protective order to prevent Dr. Foote from pursuing
this line of impeachment of Dr. Done, or, in the alternative, for
a continuance.
Dr. Foote planned to impeach Dr. Done by using the
findings from a proceeding in the superior court of the District
of Columbia. In this proceeding, Judge Wolf found that Dr. Done
had misstated his credentials at a trial which had taken place
some three years earlier. At the earlier trial, Dr. Done
appeared as an expert witness for the plaintiff against defendant
Merrell Dow Pharmaceuticals. See Oxendine v. Merrell Dow
Pharmaceuticals, 563 A.2d 330 (D.C. App. 1989) (Oxendine II),
cert. denied, 110 S.Ct. 1121 (1990).2 Given his holding that Dr.
Done had misstated his credentials, Judge Wolf granted Rule 60(b)
relief to Merrell Dow.
At a pretrial hearing, the superior court denied the
Snyders' motion for a protective order or continuance. The
superior court's ultimate ruling allowed inquiry into the
testimony and findings of the 1986 District of Columbia Rule
60(b) hearing.3
The court disallowed any reference to Judge Wolf's conclusion
that "Dr. Done knowingly and intentionally testified falsely at
the trial," but allowed Dr. Foote to state that a judge had made
the findings of fact which formed the basis for cross
examination.
The case went to trial before a six person jury on May
18, 1989. The jury returned a verdict in favor of the defense.
Thereafter, the Snyders filed a motion for new trial on June 26,
1989. On August 11, 1989, the District of Columbia Court of
Appeals reversed Judge Wolf's 60(b) ruling, and reinstated the
original verdict in Oxendine. Oxendine II, 563 A. 2d 330. The
Snyders' notified the superior court of this development by a
supplement to their motion for new trial. The Snyder's motion
for a new trial was denied and this appeal followed.
On appeal, the Snyders' main contentions are that the
superior court erred in allowing Dr. Done, their primary witness
as to Dr. Foote's negligence, "to be cross examined with the
hearsay 'findings' of another judge which findings were
subsequently overturned on appeal"and further erred in admitting
into evidence "Expert Advisory Panel Report No. 2."
II.
The impeachment of Dr. Done involved the admission of
two controversial facts:4 first, the superior court admitted
evidence that Dr. Done had misstated his credentials at a
previous trial; second, the superior court allowed admission of
the fact that Judge Wolf had made findings of fact concerning
Done's alleged misstatements. We hold that the admission of
these two categories of fact constitutes reversible error. Our
study of the parties' arguments persuades us that no basis for
the admissibility of this evidence has been demonstrated and that
admission of this evidence cannot be characterized as harmless
error.
The Snyders argue that evidence of Dr. Done's
misstatements and Judge Wolf's findings is not admissible because
it raises collateral issues. Therefore, they contend that Alaska
Evidence Rule 402, which allows admission only of relevant
evidence, precludes admission of this evidence.5 The Snyders
further assert that by admitting this evidence the superior court
transformed their malpractice action into a trial of Dr. Done.
Dr. Foote responds by arguing, in part, that impeachment of an
expert witness' credentials is always relevant.
We have adopted a two-prong test for admissibility of
evidence: (1) the evidence must make a proposition more or less
likely, and (2) the proposition must be material to the case.
Poulin v. Zartman, 542 P.2d 251, 260 (Alaska 1975), disavowed on
other grounds, State v. Alex, 646 P.2d 203, 208 n.4 (Alaska
1982). We have held that "evidence which is offered to
contradict a collateral matter is inadmissible." Shane v.
Rhines, 672 P.2d 895, 898 n.2 (Alaska 1983); see also Morrell v.
State, 575 P.2d 1200, 1204 (Alaska 1978) (impeachment of witness
as to a collateral matter not allowed). Evidence is collateral
if it is not otherwise admissible. Babinec v. State, 586 P.2d
966, 968 n.14 (Alaska 1978) ("Facts will be considered non-
collateral, and hence open to impeachment, if one of two tests is
satisfied: the facts are relevant to substantive issues in the
case or are independently provable by extrinsic evidence, apart
from the contradiction, to impeach or disqualify the witness.").
The fact that Dr. Done may have misstated his
credentials at a previous trial is not germane to his actual
credentials. Moreover, the fact that Judge Wolf made certain
findings is collateral to the question of Dr. Done's credentials
and not relevant to the proceeding which gave rise to this
appeal.
Dr. Foote argues that the questioned impeachment of Dr.
Done was proper because Dr. Done's credibility was a material
issue. Dr. Foote cites to our statement in Hutchings v. State,
518 P.2d 767, 769 (Alaska 1974), that "[t]he credibility of
witnesses is always a material issue." Hutchings established a
very lenient test for admissibility: "whether the evidence tends
in reason to demonstrate the existence of some fact, state of
mind or condition that a reasonable person would take into
account in assessing the credibility of the witness under
attack." Id. At issue in Hutchings, however, was witness bias,
an issue which is never collateral. Davis v. Alaska, 415 U.S.
308, 316 (1974) ("The partiality of a witness is subject to
exploration at trial and is 'always relevant as discrediting the
witness and affecting the weight of his testimony.'"(quoting 3A
J. Wigmore Evidence 940 at 775 (Chadbourne 1970))). As our
cases make clear, the Hutchings test does not apply to all
impeachments by use of collateral evidence. See Babinec, 586
P.2d at 968 n.14.
Questions which go to expert qualifications and
credentials are generally not objectionable. "Opposing counsel
has the opportunity to cross-examine the witness on his
qualifications as well as on his conclusions." Lewis v. State,
469 P.2d 689, 696 (Alaska 1970). See also Timsah v. General
Motors Corp., 591 P.2d 154, 164 (Kan. 1979) ("Great latitude is
necessarily indulged in the cross-examination of an expert
witness in order that the intelligence and powers of discernment
of the witness, as well as his capacity to form a correct
judgment, may be submitted to the jury so it may have an
opportunity for determining the value of his testimony."); Ross
v. Colorado Nat'l Bank of Denver, 463 P.2d 882, 887 (Colo. 1969)
("once a witness testifies as an expert, he subjects himself to
the most rigid kind of cross-examination, including searching
questions concerning his qualifications, the extent of his
knowledge, and the basis of his opinion").
Facts which are relevant to Dr. Done's credentials were
properly admitted. Questions about Dr. Done's research productiv-
ity, his resignation from a medical school faculty, and related
questions, all tend to rebut Dr. Done's qualifications as an
expert. To that extent, inquiry into those facts on cross-
examination is permissible.
Dr. Done's previous testimony and the fact that Judge
Wolf had entered findings, on the other hand, are only relevant
to the extent that they imply that Dr. Done had committed
previous bad acts. This impeaches his testimony only so far as
it implies that he is likely to commit future bad acts.6 Under
Evidence Rule 608 such evidence is normally not admissible.7 See
Patricia R. v. Sullivan, 631 P.2d 91 (Alaska 1981) (Evidence Rule
608 bars admission of witness' prior acts of prostitution, when
introduced to impeach witness' credibility); Lahmeyer v. State,
765 P.2d 985 (Alaska App. 1988) (prior instances of
untruthfulness by witness not admissible to impeach credibility).
See also Jones v. Bordman, 759 P.2d 953 (Kan. 1988) (prior
instance of conduct, namely, untruthfulness as a witness, cannot
be used to impeach at current trial); State v. Smallwood, 574
P.2d 1361 (Kan. 1978) (state not allowed to cross-examine witness
regarding prior false statements).
Dr. Foote distinguishes Patricia R. by stating that in
Patricia R., "the witness' character had not been put in issue."
It is not clear on what basis Dr. Foote believes Dr. Done's
character to have been an issue at trial; Rule 608(b) allows
specific instances of conduct only in response to testimony of a
character witness concerning the character for truthfulness or
untruthfulness of a previous witness. Given the absence of the
admissibility predicate for this type of evidence, Judge Wolf's
findings cannot be considered character evidence admissible under
Rule 608(b). Dr. Foote is incorrect when he asserts that Dr.
Done's character, as opposed to his credentials, was at issue at
trial.8
Dr. Foote further contends that the questioned evidence
is admissible to show bias. Evidence Rule 613(a) states that
"evidence of bias or interest on the part of the witness . . .
[is] admissible for the purpose of impeaching the credibility of
a witness." Thus, Dr. Foote could have introduced evidence that
showed Dr. Done's favoritism towards the Snyders. However,
evidence of the findings in the Oxendine case are not admissible
on a bias theory, because these findings of fact have no tendency
to demonstrate that Dr. Done entertained a bias in regard to his
testimony at the trial in superior court.9
Additionally, we agree with the Snyders that the
factual findings of Judge Wolf constitute inadmissible hearsay,
because they are out of court statements, admitted for their
truth.10 Dr. Foote agrees that Judge Wolf's findings are hearsay,
but asserts that the factual findings of a court of law are
admissible under Evidence Rules 803(8) (public records exception)
and 803(23) (general hearsay exception). Dr. Foote contends that
there are sufficient indicia of trustworthiness to admit Judge
Wolf's findings under either of these exceptions.
Evidence Rule 802 states that "[h]earsay is not
admissible except as provided by these rules, by other rules
prescribed by the Alaska Supreme Court, or by enactment of the
Alaska Legislature." Evidence Rule 803(8) provides an exception
for public records which includes "factual findings resulting
from an investigation made pursuant to authority granted by law."
Dr. Foote believes that this public records exception allows
admission of Judge Wolf's findings.
However, subsection (b)(iv) of the public records
exception excludes "factual findings resulting from special
investigation of a particular complaint, case, or incident" from
falling within the exception. Evidence Rule 803(8)(b)(iv). The
Snyders argue that the 60(b) hearing on Oxendine was a special
investigation. As a result, they conclude that any findings from
that hearing should not have been admitted at their trial.
In general, the public records exception to the hearsay
rule does not allow admission of prior civil judgments. As
McCormick explains,
Where the doctrines of res judicata or
collateral estoppel . . . make the
determinations in the first case binding in
the second, of course, the judgment in the
first case is not only admissible in the
second, but it is as a matter of substantive
law conclusive against the party. If neither
res judicata nor collateral estoppel applies,
however, the courts have traditionally been
unwilling to admit judgments in previous
cases. The judgments have been regarded
as hearsay and not within any exception to
the hearsay rule.
E. Cleary, McCormick on Evidence 318 at 894 (3d ed. 1984)
(footnote omitted).
The wisdom of this rule is illustrated in the case at
bar. Many of Judge Wolf's findings rely on a secondary layer of
hearsay -- Judge Wolf had to listen to testimony and resolve the
credibility of witnesses.11 Evidence Rule 805 requires that
"hearsay within hearsay" itself be admissible. If their
testimony was relevant and material to issues in the case at bar,
the Oxendine witnesses should have testified before the superior
court, unless their former testimony itself fell under an
exception to the hearsay rule. Alaska Evid. R. 805. In sum, the
evidence of Judge Wolf's findings is inadmissible hearsay.12
Finally, Dr. Foote asserts that the Snyders were not
prejudiced by the admission of the contested impeachment
evidence. Dr. Foote believes that Dr. Done's testimony was
unpersuasive and minor without consideration of the questioned
impeachment evidence. Dr. Foote further contends that the weight
of the evidence over-whelmingly supports the jury's verdict. He
therefore concludes that if there was any error, it was harmless.
The Snyders respond that Dr. Done was their only
pediatric expert witness who testified as to the applicable
standard of care and that his credibility was destroyed due to
the improper impeachment. They cite Hawkins v. Thornton, 375
P.2d 565, 566 (Ariz. 1962), for the proposition that effective
and improper impeachment of a key witness is grounds for reversal
of a jury verdict.
Under Civil Rule 61, "[n]o error in either the
admission or the exclusion of evidence . . . is ground for . . .
setting aside a verdict . . . unless refusal to take such action
appears to the court inconsistent with substantial justice."
This court has held that where presentation of irrelevant
evidence produces no prejudicial effect, it is harmless and not
grounds for reversal. Nelson v. State, 628 P.2d 884 (Alaska
1981).
In a previous medical malpractice case, we determined
that admission of certain evidence was error, because the
evidence was irrelevant. Poulin v. Zartman, 542 P.2d 251, 259
(Alaska 1975), disavowed on other grounds, State v. Alex, 646
P.2d 203, 208 n.4 (Alaska 1982). However, we did not reverse
because we found that the evidence was harmless. Poulin
emphasized that harmless error "does not require proof of harm
beyond a reasonable doubt." Id. at 261. Instead, the standard
of review requires this court to put itself in the place of the
jury, to determine whether, as reasonable jurors, "the error
committed probably affected their verdict." Id. (quoting Love v.
State, 457 P.2d 622 (Alaska 1969).
In Poulin, we examined the entire record, noting the
gravity of the case and the minimal exposure of the irrelevant
evidence. Id. We concluded that "[i]n light of the record as a
whole, . . . a reasonable jury would not have been affected by
this testimony and that this particular jury was not affected by
this testimony." Id.
Here, unlike Poulin, we believe that the inadmissible
impeaching evidence played a dominant role in the trial. Defense
counsel emphasized the importance of the evidence both during the
evidentiary phase at trial and in closing argument.13 Further,
Dr. Done was the Snyders' only expert witness. We cannot say
that the improper impeachment would not have affected a
reasonable juror. We conclude that the erroneous admission of
this impeaching evidence was prejudicial error.
In conclusion we hold that the superior court erred by
admitting the questioned findings. The fact that Dr. Done had
previously misstated his credentials is collateral and
inadmissible evidence of prior bad acts under Evidence Rule 608.
Further, the fact that Judge Wolf made certain findings is also
collateral and for the reasons above stated such errors are
prejudicial and require reversal.14
III.
The Snyders also assert error in the admission of the
second report of the Expert Advisory Panel, raising three
objections. First, they claim the report was untimely. Alaska
Statute 09.55.536(c) requires a written report from the Panel
within thirty days of appointment. Here the Panel issued its
report 105 days after appointment. Second, the Snyders note
that one doctor on the Panel, Dr. Rundquist, occasionally used
Dr. Foote's clinic for relief on-call coverage. The Snyders
believe that this use created a conflict of interest. The
Snyders further argue that the second report of the Panel was
inadmissible under Civil Rule 72.1(2), which requires that Panel
members disclose anything which would create an "appearance of
bias." Third, the Snyders believe that the Panel report
contains implicit resolutions of factual questions, yet fails to
disclose the factual assumptions made by the experts.
Specifically, the Snyders believe that the report necessarily
adopted one of Dr. Foote's written chart notes over the other.
Thus, the Snyders argue that the Panel report contravenes AS
09.55.536(d) which requires that "[i]n any case in which the
answer to one or more of the questions submitted to the panel
depends upon the resolution of factual questions which are not
the proper subject of expert opinion, the report shall so state .
. . ."
The issues raised by the Snyders are fact specific. We
decline to decide these issues on this record. For example, the
extent of Dr. Foote's business relationship with Dr. Rundquist
and whether Dr. Foote knew of the relationship, but failed to
disclose it, is not clear from this record. Nor is it clear
whether the Panel in fact made, and failed to disclose, factual
assumptions based on the evidence before it. Given the late
release of the report,15 the Snyders may have been hampered in
their effort to build a factual record on these issues.
Therefore, should they choose to do so, on remand, the Snyders
may move for a new panel report on these grounds. This will
allow the superior court to determine the merits of the motion.16
IV.
The judgment is REVERSED and VACATED and the matter
REMANDED for further proceedings not inconsistent with this
opinion.
_______________________________
1. AS 09.55.536(c) states,
Not more than 30 days after
selection of the panel, it shall make a
written report to the parties and to the
court, answering the following questions and
other questions submitted to the panel by the
court:
(1) What was the disorder for which
the plaintiff came to medical care?
(2) What would have been the
probable outcome without medical care?
(3) Was the treatment selected
appropri-ate for the case?
(4) Did an injury arise from the
medical care?
(5) What is the nature and extent
of the medical injury?
(6) What specifically caused the
medical injury?
(7) Was the medical injury caused
by un-skillful care?
(8) If a medical injury had not
occurred, how would the plaintiff's condition
differ from the plaintiff's present
condition?
2. In 1981, Dr. Done had testified in favor of plaintiff
Mary Oxendine in her suit against Dow Pharmaceuticals. See
Oxendine v. Merrell Dow Pharmaceuticals, Inc., 563 A.2d 330, 331
(D.C. App. 1989) (Oxendine II) cert. denied 110 S.Ct. 1121
(1990). The jury returned a verdict in favor of Oxendine, and it
was affirmed on appeal. Oxendine v. Merrell Dow Pharmaceuticals,
Inc., 506 A.2d 1100 (D.C. 1986) (Oxendine I). In 1986, more than
three years after the jury verdict, Merrell Dow filed a Rule
60(b) motion asking the court to vacate the judgment on the
grounds that Done had misstated his credentials. Rule 60(b) in
the District of Columbia, like Alaska, allows relief from a final
judgment on the grounds of "[m]istakes; inadvertence; excusable
neglect; newly discovered evidence; fraud . . . . or any other
reason justifying relief from the operation of the judgment."
Oxendine II at 332-33 n.5 (quoting Super. Ct. Civ. R. 60(b)(6)).
A hearing on the 60(b) motion was held before Judge
Wolf. According to the Oxendine II court, "Judge Wolf found that
Dr. Done knowingly and intentionally gave false testimony at
trial in six areas, all of which, the judge conceded, related to
Dr. Done's qualifications and not to any substantive issues in
the case." Id. at 332. Judge Wolf found that this false
testimony was "crucial"and created a "substantial danger that
there was an unjust result"; he concluded that this entitled
Merrell Dow to the "extraordinary relief [of vacation of a
judgment and] a new trial." Id. at 333 (quoting Memorandum Order
of February 11, 1986, at 3-5).
Oxendine appealed, and the District of Columbia Court
of Appeals reversed. It stated that "for a verdict to be vacated
on the ground of perjured testimony it must be clear that the
perjury was material and not merely incidental to the contested
issue." Id. at 334 (citation omitted). As to five of the six
misstatements, the court of appeals found that Merrell Dow could
have presented the evidence of Dr. Done's credentials at trial.
As to the other, the question of when Dr. Done resigned from
Wayne State University, the court concluded that the evidence was
too immaterial to support a reversal of the jury verdict. Id. at
337. Indeed, the court doubted whether this evidence was
sufficiently relevant to have been introduced at trial. Id.
Oxendine II was not decided until August 11, 1989, following
completion of the trial in the instant case.
3. The final ruling of the superior court on this matter
came at trial during the following colloquy:
MR. FLORA [the Snyders' attorney]:
[J]ust for clarification, Your Honor, is the
Judge's ruling that Mr. Clapp [Foote's
attorney] can read from this decision
findings of fact one through, well, half of
twenty?
THE COURT: That's correct.
MR. FLORA: And he can read it off this
sheet and ask Dr. Done each of these
questions separately in the course of cross
examination?
THE COURT: Mr. Clapp can ask him if he
previously testified concerning these items
and it was determined that his testimony was
not as he said. He can ask him those
questions, yes.
MR. FLORA: Is the Court's present ruling
that then Mr. Clapp cannot say that the court
made factual determinations regarding whether
Dr. Done was telling the truth?
THE COURT: That's correct.
. . . .
MR. FLORA: So he can say, "Didn't a
judge find that Dean Nadler . . . asked him
to resign"
THE COURT: Yes.
4. In general, the trial court has discretion on whether
or not to admit evidence. Hutchins v. Schwartz, 724 P.2d 1194,
1197 (Alaska 1986). Under Civil Rule 61, no error in the
admission of evidence is ground for reversal unless the objecting
party was prejudiced. See Korean Air Lines Co., Ltd. v. State,
779 P.2d 333, 339 (Alaska 1989)
5. The term relevant evidence is defined in Rule 401,
Alaska Rules of Evidence, as follows:
Relevant evidence means evidence
having any tendency to make the existence of
any fact that is of consequence to the
determination of the action more probable or
less probable than it would be without the
evidence.
Rule 402 provides:
All relevant evidence is
admissible, except as otherwise provided by
the Constitution of the United States or of
this state, by enactments of the Alaska
Legislature, by these rules, or by other
rules adopted by the Alaska Supreme Court.
Evidence which is not relevant is not
admissible.
6. Dr. Foote's attorney asked Dr. Done in open court, "And
the purpose of that hearing, was it not, was to determine whether
the judgment against Merrell Dow should be set aside because of
the testimony that you had provided in that case? . . . And are
you aware of the specific findings of fact that the judge entered
in that case after that four day evidentiary hearing?" Dr.
Foote's attorney further questioned Dr. Done, "Some of the
findings of fact are contrary to [your testimony] are they not?"
7. Evidence Rule 608 states,
(a) Opinion and Reputation
Evidence of Character. The credibility of a
witness may be attacked or supported by
evidence in the form of opinion or
reputation, but subject to these limitations:
(1) the evidence may refer only to character
for truthfulness or untruthfulness; and (2)
evidence of truthful character is admissible
only after the character of the witness for
truthfulness has been attacked by opinion or
reputation evidence or otherwise.
(b) Specific Instances of Conduct.
If a witness testifies concerning the
character for truthfulness or untruthfulness
of a previous witness, the specific instances
of conduct probative of the truthfulness or
untruthfulness of the previous witness, may
be inquired into on cross-examination.
Evidence of other specific instances of the
conduct of a witness offered for the purpose
of attacking or supporting that witness'
credibility is inadmissible unless such
evidence is explicitly made admissible by
these rules, by other rules promulgated by
the Alaska Supreme Court, or by enactment of
the Alaska Legislature.
8. Dr. Foote argues that the Snyders themselves introduced
the evidence of the Oxendine hearing in their case-in-chief.
Therefore, Dr. Foote believes that the Snyders "opened the door"
to admission of the evidence of Dr. Done's prior testimony and
Judge Wolf's findings. However, at pretrial, the court had ruled
this evidence admissible. Moreover, Dr. Foote had represented
to the court that he would admit as much of Judge Wolf's findings
as the court allowed. Admittedly, the superior court later
qualified its pretrial ruling. Importantly, however, at the time
the Snyders questioned Dr. Done about the Oxendine proceedings,
the superior court had made its final ruling about the
admissibility of this evidence. Thus, after a careful review of
the record, we conclude that the law of the case was that the
evidence was admissible. Hence, the Snyders did not "open the
door to this impeachment."
9. Dr. Foote notes that "the majority of [Dr. Done's] time
is spent serving as an expert,"that "Dr. Done stands to profit
from his effectiveness as an expert,"and that Dr. Done was the
sole proprietor of an investigating and consulting firm. These
facts are admissible because they tend to establish favoritism.
Dr. Foote then concludes that "[t]he jury has a right to hear all
of the information regarding Dr. Done to assess his credibility"
and that "[b]y hearing the impeachment, the jury could apply
human experience to determine if Dr. Done would shape his
testimony to gain himself favor with lawyers in medical cases."
Here, Dr. Foote's argument clearly goes to prior bad acts:
because Dr. Done was previously found to be an incredible
witness, he wants the jury to conclude that Dr. Done would
similarly lie here. There is nothing in the fact of Judge Wolf's
previous findings that would inherently bias Dr. Done toward the
Snyders. This fact cannot be admissible on a bias theory.
Evidence Rule 613 also allows admission of prior
inconsistent statements made at a trial. The case that Dr. Foote
cites to support the proposition that "[t]he jury has a right to
hear all of the information regarding Dr. Done to assess his
credibility,"Bentley v. State, 397 P.2d 976, 978 (Alaska 1965),
is a prior inconsistent statement case.
10. Evidence Rule 801(c) defines hearsay as follows:
Hearsay is a statement other than one
made of the declarant while testifying at the
trial or hearing, offered in evidence to
prove the truth of the matter asserted.
11. Former testimony is admissible under Evidence Rule
804(b)(1) but only if the declarant is unavailable, and only if
the party against whom it was offered had an opportunity and
similar motive to develop that witness' testimony in direct,
cross, or redirect examination. Under this rule, the underlying
testimony which came out at the Oxendine Rule 60(b) hearing is
inadmissible in the instant case. If the underlying testimony is
inadmissible, it follows that conclusions based on that testimony
would not be admissible for the same reasons -- lack of
opportunity for the party in interest, the Snyders, to defend
against the testimony. See Black Hills Jewelry Mfg. Co. v. Gold
Rush, Inc., 633 F.2d 746, 753 (8th Cir. 1980) (summary of witness
testimony at previous trial not admissible public record
exception of the federal rules of evidence because current party
did not have opportunity and motive to develop testimony at
previous proceeding).
12. As the above analysis illustrates, this evidence
similarly does not qualify for the "catch-all" exception,
803(23). Additionally, the existence of the findings by Judge
Wolf fails the first two requirements of that exception: first
that the statement "is offered as evidence of a material fact";
second, that it be "more probative on the point for which it is
offered than any other evidence which the proponent can procure
through reasonable efforts." The fact of Judge Wolf's findings
is not material and Dr. Foote could have procured more probative
evidence to impeach Dr. Done.
13. In Poulin, we specifically noted that the inadmissible
evidence was not mentioned in closing. 542 P.2d at 261. Here,
defense counsel stated in closing, "The reason I [attacked Dr.
Done] is because he's a liar. And I proved he was a liar --
under oath. And don't take my word for it. Take the judge who
made the decision in the evidentiary hearing, that in the
Oxendine case the judge found that as a matter of fact complete
inconsistencies in Dr. Done's testimony."
14. We also note our agreement with the Snyders' further
argument that this evidence should have been excluded upon
application of the balancing test called for in Evidence Rule
403. This rules provides:
Although relevant,
evidence may be excluded if its
probative value is outweighed by
the danger of unfair prejudice,
confusion of the issues, or
misleading the jury, or by
considerations of undue delay,
waste of time, or needless
presentation of cumulative
evidence.
15. Dr. Foote argues that Roethler v. Lutheran Hosp. & Homes
Soc'y of America, Inc., 709 P.2d 487 (Alaska 1985), stands for
the proposition that the only remedy for a late Panel report is a
lifting of the discovery ban. Roethler held that when a report
is eighty days late, the trial court must lift the discovery ban.
Roethler did not discuss the exclusivity of this remedy.
Here, the Snyders did not move for a lifting of the
discovery ban after eighty days had expired. However, in the
peculiar circumstances of this case, this omission is excused. A
preliminary Panel report was issued before the eighty day
deadline. At the time, it was apparently not clear that this was
not the official report. Therefore, if any of the Snyders'
allegations of error have merit, the harmful effect of the error
may have been compounded by the untimeliness of the final report,
through no fault of the Snyders.
16. Our decision has made it unnecessary to address any of
the remaining specifications of error which have been advanced in
this appeal.
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