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Sopko v. Schlumberger Technology Corp. (4/27/01) sp-5396
Sopko v. Schlumberger Technology Corp. (4/27/01) sp-5396
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CHRISTOPHER M. SOPKO, )
) Supreme Court No. S-9354
Appellant, )
) Superior Court No.
v. ) 3AN-96-2729 CI
)
DOWELL SCHLUMBERGER, INC., ) O P I N I O N
and SCHLUMBERGER TECHNOLOGY )
CORPORATION, ) [No. 5396 - April 27, 2001]
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Christopher M. Sopko, pro se,
Willow, and Darryl Thompson, Darryl L.
Thompson, P.C., Anchorage, for Appellant at oral argument. Daniel
A. Gerety and Megan R. Ludwig, Delaney, Wiles, Hayes, Gerety, Ellis
& Young, Inc., Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Bryner, and Carpeneti, Justices. [Eastaugh, Justice, not
participating.]
FABE, Chief Justice.
I. INTRODUCTION
Christopher Sopko was allegedly exposed to toxic
chemicals while working at a burned-out warehouse owned by Dowell
Schlumberger, Inc./Schlumberger Technology Corp. between September
11 and 16, 1990. Sopko had symptoms of toxic exposure as early as
September 11, 1990; however, his April 1994 diagnosis of multiple
chemical sensitivity was his first diagnosis indicating permanent
illness. Sopko brought suit against Schlumberger and its
contractor on the warehouse project, Martech USA, in Anchorage
Superior Court on April 11, 1996, alleging exposure to toxic
chemicals while working on the warehouse project.
Schlumberger filed a motion for summary judgment,
claiming that the relevant statute of limitations barred Sopko's
claims. The superior court granted Schlumberger's motion and
dismissed the claims against Schlumberger. Sopko has appealed this
decision. For the reasons stated below, we affirm the decision of
the superior court.
II. FACTS AND PROCEEDINGS
Between September 11 and 16, 1990, Sopko was employed to
clean up after a fire at a warehouse in Prudhoe Bay owned by
Schlumberger; Sopko was hired by Martech, Schlumberger's contractor
for clean-up operations. Sopko was not present at the Schlumberger
warehouse when the fire occurred; however, the site was still
smoldering when Sopko arrived at the site, on September 11, 1990.
Even though Sopko was hired for the clean-up work by Martech,
Schlumberger was the owner and operator of the warehouse site and
had control over the chemicals contained in the warehouse there.
Sopko became sick on the first day of his work at the
Schlumberger warehouse, September 11, 1990, with symptoms including
coughing, burning eyes, running nose, and "mental confusion."
Sometime before September 16, Sopko developed more serious
symptoms, including convulsions, vomiting, abdominal pain, bowel
incontinence, and a reduction in memory and attention span.
Because of these symptoms, Sopko went to a clinic at Prudhoe Bay
and was told that there was a "bad cold going around." Also
sometime before September 16, Sopko asked for the Material Safety
Data Sheets (MSDS) for the chemicals that had been stored at the
Schlumberger warehouse. However, a representative for Martech told
him that Schlumberger had not yet made the MSDS available.
On September 13 or 14, 1990, Sopko requested that he be
evacuated from the site for medical attention. His request was
granted on September 16, when Sopko was flown to Anchorage. In
Anchorage, on either September 17 or 20, Norman J. Wilder, M.D.
diagnosed Sopko as suffering from "toxic fume exposure," but also
suggested that mild asthmatic bronchitis and a prior history of
respiratory infections may have had a role in Sopko's symptoms.
Dr. Wilder saw Sopko again on September 24 and found that Sopko was
recovering and had suffered no permanent damage. [Fn. 1] After
September 24, Sopko felt well enough to return to work at the
Schlumberger warehouse, but Martech refused to rehire him.
In 1992 Sopko began to suspect that his continuing
symptoms were caused by exposure from work that he performed
fifteen years earlier as a furniture stripper for Alaska Furniture
Manufacturing. While working for Alaska Furniture Manufacturing in
1977, Sopko experienced confusion, eye irritation, nasal
congestion, and lightheadedness ("feeling spacy"). In 1992 Sopko
talked to another man who had worked at Alaska Furniture
Manufacturing in 1977, who claimed that he had a rash similar to
one that Sopko had experienced, as well as problems with his heart
and nervous system, and that these problems were caused by exposure
to solvents in the course of the 1977 furniture stripping work.
Sopko inquired at the Workers' Compensation Board as to whether any
other workers who had worked in 1977 for Alaska Furniture
Manufacturing had had any similar problems. The Board did not
provide such information, but it instructed Sopko to file a claim
with the Board, which he did on June 8, 1992. The claim filed in
1992 was for permanent partial disability benefits, and it was
filed against Alaska Furniture Manufacturing only. [Fn. 2]
In March 1994, while working at a restaurant in
Anchorage, Sopko noticed that he had developed a sensitivity to
some chemicals including acetone; Sopko became sick after using a
highlighting marker that contained acetone. Sopko's symptoms in
March 1994 included extreme pain in his heels that made his work
impossible. On April 12, 1994, Sopko was tested by Allergy Testing
Services, and was found to be sensitive, or "allergic," to more
than twenty-five industrial chemicals. Because these tests
indicated sensitivity to chemicals other than the ones involved in
the 1977 furniture stripping job, Sopko filed an additional
workers' compensation claim. On April 21, 1994, Sopko filed a
claim against Martech, asserting that the work at the Schlumberger
warehouse caused his sensitivity to the other chemicals. In the
claim against Martech, Sopko claimed permanent total disability
benefits. Sopko's workers' compensation claims against Alaska
Furniture Manufacturing and Martech were consolidated into a single
claim.
In September 1995 Sopko saw other doctors, Drs. Aron Wolf
and Gene Gustafson. Dr. Gustafson performed a "neuro-psych" exam
on Sopko and diagnosed Sopko with "dementia: due to chemical
toxicity."
On April 11, 1996, Sopko filed a complaint in Anchorage
superior court against Schlumberger and Martech. In five separate
causes of action, Sopko alleged that Schlumberger and Martech
committed fraud and made misrepresentations concerning materials at
the job site and intentionally required Sopko to work without
notice of toxic materials present there. Sopko also claimed that
Schlumberger and Martech were negligent in failing to keep the job
site safe and were negligent per se for violation of laws and
safety regulations.
Sopko supported his claims with a report issued by Dr.
Grace Ziem, who examined Sopko in the fall of 1996. Dr. Ziem
diagnosed Sopko with various ailments based on chemical exposure:
"toxic encephalopathy, impaired detoxification, numerous and
significant immune system impairments, porphyrin metabolism
disturbance, and numerous nutritional disturbances." Dr. Ziem
expressed the opinion that these conditions were directly caused by
exposure on the job in 1990 at the Schlumberger warehouse.
Schlumberger answered the complaint on May 13, 1996, and
pleaded ten affirmative defenses, including the statute of
limitations. [Fn. 3]
On April 23, 1999, Schlumberger filed a motion for
summary judgment, claiming that Sopko's claims were time barred by
the statute of limitations. Schlumberger's motion relied heavily
on the report issued by Dr. Ziem. On May 5, 1999, Sopko filed his
opposition to Schlumberger's motion for summary judgment.
The superior court held oral argument on the motion for
summary judgment on June 11, 1999. At this hearing Sopko confirmed
many of the factual statements made in Dr. Ziem's report. However,
Sopko also challenged the accuracy of some factual statements in
the report and requested the opportunity to "cross-examine" Dr.
Ziem, who was not present at the hearing.
On June 14, 1999, the superior court granted
Schlumberger's motion for summary judgment. On July 30, 1999, the
superior court dismissed the claims against Schlumberger. Sopko
has appealed from the superior court's grant of summary judgment
and subsequent dismissal of this action.
III. STANDARD OF REVIEW
This is an appeal of summary judgment entered by the
superior court, and therefore should be reviewed de novo. [Fn. 4]
We will affirm a summary judgment if there are no genuine issues of
material fact and if the moving party is entitled to judgment as a
matter of law. [Fn. 5] When making this determination, we will
draw all reasonable inferences in favor of the non-moving party.
[Fn. 6]
We are not bound by the reasoning articulated by the
lower court, and we can affirm a grant of summary judgment on
alternative grounds, including grounds not advanced by the lower
court or the parties. [Fn. 7] Moreover, we will consider any
matter appearing in the record, even if not passed upon by the
lower court, in defense of the judgment. [Fn. 8]
IV. DISCUSSION
A. Schlumberger Is Entitled to Summary Judgment As a Matter
of Law.
In order for the movant to be entitled to summary
judgment, the movant must first present a prima facie case for
summary judgment: using admissible evidence, the movant must prove
"the absence of genuine factual disputes and its entitlement to
judgment as a matter of law." [Fn. 9] The non-moving party may
rebut this prima facie case by setting forth specific facts showing
that he could produce admissible evidence to demonstrate that a
material issue of fact exists. [Fn. 10]
Sopko makes essentially two arguments to support his
claim that Schlumberger is not entitled to summary judgment: (1)
Schlumberger has failed to make the necessary prima facie showing
with admissible evidence; and (2) the discovery rule prevents
summary judgment either as a matter of law or because there are
issues of material fact.
1. Schlumberger did make out a prima facie case for
summary judgment with admissible evidence.
In order to make out its prima facie case for summary
judgment, Schlumberger had to do so with admissible evidence. [Fn.
11] The parties here disagree about the admissibility of the
evidence relied upon by Schlumberger.
Sopko claims that the evidence relied upon by
Schlumberger is not admissible. Citing Concerned Citizens v. Kenai
Peninsula Borough, [Fn. 12] Sopko notes that unsworn and
unauthenticated documents are not admissible, and are therefore not
competent proof for summary judgment. Sopko claims that
Schlumberger, in its motion for summary judgment, relied primarily
on the unsworn and unauthenticated, and therefore inadmissible,
report of Dr. Grace Ziem, who treated Sopko and diagnosed him with
various maladies in 1996.
As an initial matter, any statements by Sopko to Dr. Ziem
are not hearsay as they are admissions by Sopko and fall within the
scope of Alaska Rule of Evidence 801(d)(2)(A). [Fn. 13] Second, no
party disputes the authenticity of the Ziem report; Sopko does not
claim that the report relied on by Schlumberger was not actually
written by Dr. Ziem. In fact, Sopko cited to Ziem's report himself
to support his own factual claims on appeal. Therefore, Sopko
cannot now claim that the Ziem report was not authentic and
therefore inadmissible.
Sopko has also waived his argument that the Ziem report
was unsworn and therefore inadmissible. Sopko failed to object on
this basis at the summary judgment hearing. Also, as noted, Sopko
confirmed the relevant factual statements at the summary judgment
hearing and relied on many of them in his opposition to summary
judgment. Thus, if the superior court committed any error by
allowing Schlumberger to rely on the unsworn Ziem report, the error
was harmless. Therefore, Schlumberger properly presented
admissible evidence in support of its motion for summary judgment.
2. The discovery rule does not require that the grant
of summary judgment be reversed.
The central controversy in this case concerns the
application of the discovery rule, a rule that we adopted in the
context of the limitations period for tort suits. The discovery
rule tolls the usual two-year statute of limitations [Fn. 14] and
prevents the limitations period from starting to run until the
plaintiff discovers, or reasonably should discover, the existence
of all elements of his cause of action. [Fn. 15] We adopted the
discovery rule to protect plaintiffs from losing their cause of
action when they have an injury that remained undiscovered or
reasonably undiscoverable for longer than the limitations period.
[Fn. 16] It also protects plaintiffs whose injury is known but the
cause is not reasonably discoverable during the limitations period.
[Fn. 17]
The incident giving rise to this lawsuit occurred between
September 11 and 16, 1990. Sopko did not file suit until April 11,
1996. The applicable limitations period, defined by AS 09.10.070,
is two years. [Fn. 18] The discovery rule bars Sopko's claim
unless his cause of action "accrued" on or after April 11, 1994.
[Fn. 19] Under the terms of the discovery rule, Sopko's claim
accrued before this date if Sopko discovered, or reasonably should
have discovered, the existence of all of the elements of his cause
of action before April 11, 1994. [Fn. 20]
Sopko claims that he did not discover all of the elements
of his cause of action until at least September 1995, and that he
reasonably should not have been able to discover all of these
elements until that time. Specifically, Sopko claims that he did
not know that he had a permanent injury caused by the defendant's
conduct until at least September 1995, when he was first diagnosed
with a permanent condition based on the chemical exposure that had
apparently taken place in 1990 at the Schlumberger warehouse.
Also, Sopko implicitly claims that he could not reasonably have
known of these elements until September 1995, because the doctors
that he saw before September 1995 did not diagnose him with a
permanent injury from chemical exposure, and because Schlumberger
kept from him, until June 1994, the MSDS that would have shown him
the connection between his injuries and the chemical exposure.
Under the discovery rule, a plaintiff's claim accrues at
the time that he discovers, or reasonably should discover, all of
the elements of his cause of action. [Fn. 21] The plaintiff
"reasonably should have discovered" all of the elements of his
cause of action at the point at which the plaintiff "has sufficient
information to prompt an inquiry into the cause of action, if all
of the essential elements of the cause of action may reasonably be
discovered within the statutory period at a point when a reasonable
time remains within which to file suit." [Fn. 22]
Under this standard, the undisputed facts in the record
indicate that Sopko should have discovered both his injury and its
causation on September 20, 1990 -- long before the April 11, 1994
date required to preserve Sopko's claim. On his first day of work
at the Schlumberger warehouse, September 11, 1990, Sopko became
sick, experiencing symptoms including coughing, burning eyes,
running nose, and mental confusion. By September 16, Sopko's
symptoms had become more serious, including convulsions, vomiting,
abdominal pain, incontinence, and a reduction in memory and
attention span. Sopko sought treatment for these symptoms at a
Prudhoe Bay clinic and requested evacuation from the site for
medical attention. His request was granted on September 16, when
Sopko was flown to Anchorage. On September 17 or 20, Sopko was
diagnosed by Dr. Wilder as suffering from "toxic fume exposure."
By September 20, 1990, Sopko had sufficient information
to prompt an inquiry into his cause of action. Dr. Wilder's
diagnosis of "toxic fume exposure" and the severe symptoms that
Sopko experienced while on the job at the Schlumberger warehouse
and immediately afterward constituted sufficient information for
Sopko to prompt an inquiry into his cause of action. As we held in
Cameron v. State, under the discovery rule an injured plaintiff has
sufficient information to prompt an inquiry into his cause of
action once the plaintiff learns that he has a "medically
documented . . . condition." [Fn. 23]
Sopko argues that his case should be viewed and analyzed
as a toxic tort case. In toxic tort cases, such as cases where the
plaintiff contracts silicosis or asbestosis from exposure to
silicate dust or asbestos fibers, under the discovery rule the
statute of limitations will generally not start running until the
plaintiff's disease manifests itself in an illness. In such cases,
the plaintiff initially does not have any symptoms of injury, and
therefore has insufficient information to prompt an inquiry into
his cause of action. [Fn. 24] The undisputed facts indicate that
Sopko did not suffer from this type of "latent injury." Instead,
between September 11 and 20, 1990, Sopko suffered severe symptoms
of injury and was diagnosed with "toxic fume exposure." And the
undisputed facts indicate that these symptoms were ongoing. In
1992 Sopko complained of various ongoing chronic health conditions
in a claim with the Alaska Workers' Compensation Board. In this
June 8, 1992 claim, Sopko complained of "rashes, lumps, tumors,
joint stiffness, intestinal disorders, breathing problems,
fluctuating blood pressure, and an inability to cope with stressful
situations in a rational manner." Therefore, the undisputed facts
indicate that Sopko had sufficient information on September 20,
1990 to prompt an inquiry into his cause of action. And, as we
have required in the past, all of the essential elements of Sopko's
cause of action could have been discerned within the limitations
period, with reasonable time remaining to file suit. [Fn. 25] As
of June 8, 1992, Sopko by his own admission had many symptoms of
injury and chemical exposure, which he complained of before the
Alaska Workers' Compensation Board. And on June 8, 1992, Sopko
still had more than three months to file suit before the
limitations period ran out on September 20, 1992.
Also, as we held in Smith v. Thompson [Fn. 26] and
Wettanen v. Cowper, [Fn. 27] under the discovery rule it is
irrelevant if the full scope of injury is not known immediately.
Sopko had "sufficient information" to start an inquiry into his
cause of action in 1990 even though the full extent of his injury
was not revealed until 1995, when Sopko was diagnosed with
permanent "dementia" caused by toxic exposure. [Fn. 28] In Smith,
the plaintiff was involved in an auto accident, and did not
discover the serious nature of her injuries (and file suit against
the other driver) until four and one-half years after the accident.
[Fn. 29] At the time of the accident the plaintiff's neck and head
were sore, and she was diagnosed with a "muscle strain." However,
four and one-half years later, she developed serious neck problems
that necessitated two surgeries and the installation of a head
brace. In Smith, we held that the plaintiff's suit was time barred
because the plaintiff knew or should have known that she had some
injury at the time of the accident, even if the injury's full
extent was then unknown. [Fn. 30] In Wettanen, an attorney
malpractice case, we held that the statute of limitations began to
run when the attorney committed the harm by negligently failing to
prepare for or appear at his client's trial. [Fn. 31] In Wettanen
we noted that "commencement of the statute [of limitations] will
not be put off until one learns the full extent of his damages."
[Fn. 32] Similarly, Sopko had sufficient knowledge on September
20, 1990 to prompt an inquiry into his cause of action, and it is
irrelevant that the full extent of his injuries did not become
apparent until later.
Indeed, by his own admission, Sopko did not make any kind
of inquiry at all following the September 1990 diagnosis -- he
"pretty much forgot about it." Therefore, by September 20, 1990,
Sopko reasonably should have discovered all of the elements of his
cause of action, and under the discovery rule his claim is time
barred.
B. The Superior Court Made No Other Errors That Would
Mandate Reversal.
Sopko alleges two procedural errors by the superior
court: (1) that the superior court erred in failing to grant
Sopko's motion for extra time for discovery; and (2) that the
superior court erred in failing to properly advise and protect
Sopko as a pro se litigant. However, neither of these actions
constitutes error nor changes the outcome of this case.
1. The superior court did not err in refusing to grant
Sopko extra time for discovery.
On the day of the summary judgment hearing (June 11,
1999), Sopko made a motion under Alaska Civil Rule 56(f) [Fn. 33]
to request additional time for discovery, in order to "marshal the
evidence needed to ward off summary judgment." The superior court
never ruled on the motion, and granted summary judgment for
Schlumberger three days later, on June 14, 1999. In granting
summary judgment, the court implicitly denied Sopko's motion.
Sopko claims that it was "error" to deny the Rule 56(f) motion, and
that this error "amplifies" the court's other errors in this case.
We review the denial of a Rule 56(f) motion for abuse of
discretion. [Fn. 34]
We have previously set forth the standard for Rule 56(f)
motions:
A party opposing a motion for summary judgment
is entitled to conduct discovery germane to its opposition. Where
the party has not been dilatory in seeking discovery and identifies
those people whom it intends to depose, it should be granted an
extension under Civil Rule 56(f) to conduct discovery.[ [Fn. 35]]
The record indicates that, in his Rule 56(f) motion,
Sopko only sought additional MSDS materials and an affidavit or
deposition of Dr. Ziem. However, Schlumberger provided Sopko with
all of the MSDS materials in June 1994, and the Alaska Workers'
Compensation Board gave Sopko access to Martech's files related to
toxic chemicals and employee exposure in March 1998. And Dr. Ziem
had been Sopko's doctor since the fall of 1996; Sopko had had more
than adequate time to depose her. Therefore, it cannot be said
that denial of Sopko's Rule 56(f) motion was an abuse of
discretion.
2. The superior court did not err by failing to
adequately warn Sopko of the danger of summary judgment and advise
him as to the procedures involved.
Sopko also argues that, because he appeared as a pro se
party below and had some apparent medical problems, he "did not
know what he was doing" during the summary judgment hearing and was
entitled to special assistance from the superior court.
We have imposed some limited duties on courts to advise
pro se litigants of proper procedure. These duties include the
duty to inform pro se litigants (1) of specific procedural defects
in their pleadings, [Fn. 36] and (2) of the necessity of opposing
a summary judgment motion with affidavits or by amending the
complaint. [Fn. 37]
The superior court did not violate any of its duties to
Sopko as a pro se litigant. The superior court did more than just
advise Sopko of procedure; the court attempted to focus Sopko's
attention on the relevant issues at the hearing. [Fn. 38] We
cannot say that the superior court's failure to do more than this
constituted an abuse of discretion.
V. CONCLUSION
Because Schlumberger was entitled to summary judgment as
a matter of law, and there were no issues of fact that would
preclude summary judgment, and because the superior court made no
errors that would preclude summary judgment, we AFFIRM the decision
of the superior court below.
FOOTNOTES
Footnote 1:
Dr. Wilder's report is paraphrased in an opinion by the Alaska
Workers' Compensation Board concerning Sopko's claims. This
opinion states:
Dr. Wilder diagnosed toxic fume exposure, and
noted a "[p]rior history of symptoms suggestive of a mild asthmatic
bronchitis . . . and aggravated intermittently over the last decade
by upper respiratory infections. This may be playing a significant
role in the current symptoms." . . . On September 24, 1990, Dr.
Wilder again saw [Sopko], and found that "[h]e seems to be
recovering well from any possible fumes he might have inhaled, and
I would see no permanent residual."
Footnote 2:
In this claim, Sopko alleged that he suffered from "rashes,
lumps, tumors, joint stiffness, intestinal disorders, breathing
problems, fluctuating blood pressure and an inability to cope with
stressful situations in a rational manner." Sopko claimed that
these symptoms were caused by an exposure to hazardous chemicals
while on the job at Alaska Furniture Manufacturing.
Footnote 3:
Martech did not answer the complaint. However, Martech filed
for bankruptcy protection on April 29, 1996, and was entitled to an
automatic stay from participation in this case.
Footnote 4:
See Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska
2000).
Footnote 5:
See id.; Alaska R. Civ. P. 56(c).
Footnote 6:
See Moore, 995 P.2d at 233.
Footnote 7:
See id.; Wright v. State, 824 P.2d 718, 720 (Alaska 1992).
Footnote 8:
See Wright, 824 P.2d at 720.
Footnote 9:
Preblich v. Zorea, 996 P.2d 730, 733 (Alaska 2000).
Footnote 10:
See id.
Footnote 11:
See id. ("The moving party bears the initial burden of
proving, through admissible evidence, the absence of genuine
factual disputes and its entitlement to judgment as a matter of
law.").
Footnote 12:
527 P.2d 447 (Alaska 1974). In Concerned Citizens, we held:
A party seeking summary judgment under Civil
Rule 56 has the burden of showing both that the case presents no
material issue of fact requiring the taking of testimony and that
applicable law requires judgment in its favor. This burden must be
discharged by submission of material admissible as evidence. . . .
[U]nauthenticated and unsworn documents . . . are not admissible in
evidence and cannot be relied upon for the purposes of summary
judgment.
Id. at 450 (citations omitted).
Footnote 13:
Alaska Rule of Evidence 801(d) provides:
A statement is not hearsay if
. . . .
(2) Admission by Party-Opponent. The
statement is offered against a party and is (A) the party's own
statement, in either an individual or a representative capacity.
Footnote 14:
See AS 09.10.070 (creating two-year limitations period for
tort actions).
Footnote 15:
See Pedersen v. Zielski, 822 P.2d 903, 906 (Alaska 1991).
Footnote 16:
See id. at 907.
Footnote 17:
See id.
Footnote 18:
AS 09.10.070 establishes the two-year statute of limitations
for tort actions: "Except as otherwise provided by law, a person
may not bring an action . . . for personal injury or death . . .
unless the action is commenced within two years of the accrual of
the cause of action."
Footnote 19:
Sopko filed suit on April 11, 1996.
Footnote 20:
See Smith v. Thompson, 923 P.2d 101, 105 (Alaska 1996)
(stating rule); Breck v. Moore, 910 P.2d 599, 604 (Alaska 1996).
Footnote 21:
See Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991).
Footnote 22:
Cameron v. State, 822 P.2d 1362, 1366 (Alaska 1992).
Footnote 23:
822 P.2d 1362, 1367 (Alaska 1992). In Cameron, the plaintiff
contracted occupational asthma digging tunnels, and we held that
there was "sufficient information" to begin an inquiry once the
plaintiff learned that he had a "medically documented lung
condition."
Footnote 24:
See Urie v. Thompson, 337 U.S. 163, 170-71 (1949); Clutter v.
Johns-Manville Sales Corp., 646 F.2d 1151, 1157-58 (6th Cir. 1981)
(applying Ohio law); Bendix Corp. v. Stagg, 486 A.2d 1150, 1152-53
(Del. 1984).
Footnote 25:
See Cameron, 822 P.2d at 1366.
Footnote 26:
923 P.2d 101 (Alaska 1996).
Footnote 27:
749 P.2d 362 (Alaska 1988).
Footnote 28:
Sopko also experienced severe symptoms during September 1990.
These included coughing, burning eyes, running nose, and "mental
confusion" (on September 11, 1990) and convulsions, vomiting,
abdominal pain, bowel incontinence, and a reduction in memory and
attention span (sometime between September 11 and 16, 1990).
Footnote 29:
923 P.2d at 103.
Footnote 30:
Id. at 105-06.
Footnote 31:
749 P.2d 362.
Footnote 32:
Wettanen, 749 P.2d at 365.
Footnote 33:
Rule 56(f) relates to summary judgment motions when affidavits
are unavailable:
Should it appear from the affidavits of a
party opposing the motion that the party cannot for reasons stated
present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such
other order as is just.
Footnote 34:
See Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1147
n.12 (Alaska 1999).
Footnote 35:
Demmert v. Kootznoowoo, Inc., 960 P.2d 606, 612 (Alaska 1998).
Footnote 36:
See Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska
1998) ("[W]e conclude that the superior court must inform a pro se
litigant of the specific defects in his notice of appeal and give
him an opportunity to remedy those defects.").
Footnote 37:
See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) ("[W]e
believe the trial judge should inform a pro se litigant of the
proper procedure for the action he or she is obviously attempting
to accomplish."); see also Ahwinona v. State, 922 P.2d 884, 888-89
(Alaska 1996) (Rabinowitz, J., concurring). But see Bauman v.
State, Div. of Family & Youth Servs., 768 P.2d 1097, 1099 (Alaska
1989) ("We decline to . . . require judges to warn pro se litigants
on aspects of procedure when the pro se litigant has failed to at
least file a defective pleading.").
Footnote 38:
Specifically, the court below attempted to convey the
relevance of the discovery rule and its application and distinguish
it from the merits of Sopko's tort claims.
