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Loncar v Gray (08/17/2001) sp-5451
Loncar v Gray (08/17/2001) sp-5451
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
KALA LONCAR, STEVE LONCAR, )
and ANA LONCAR, ) Supreme Court No. S-9390
)
Appellants, ) Superior Court No.
) 3AN-96-9792 CI
v. )
) O P I N I O N
KENNETH ELWOOD GRAY, )
) [No. 5451 - August 17, 2001]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sen K. Tan, Judge.
Appearances: Charles W. Coe, Anchorage, for
Appellants. John W. Hendrickson, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Kala Loncar contends that evidentiary decisions in her
personal injury trial were prejudicial to her case and resulted in
an inadequate jury award. She argues that the superior court erred
by admitting evidence of her prior medical history, by precluding
evidence of her government medical benefits, by restricting cross-
examination of her ex-husband, and by admitting post-accident
medical records without foundational testimony from a physician.
She also maintains that the superior court erred in denying her
motion for a new trial. Because we conclude that the superior
court did not abuse its discretion in reaching any of these
decisions, we affirm its rulings.
II. FACTS AND PROCEEDINGS
Kala Loncar was a taxi driver in Anchorage until her
injury in a 1995 traffic accident. Although Loncar did not
initially appear to be seriously injured in the accident and did
not report any loss of consciousness at the time, she soon began to
suffer from symptoms apparently related to a closed head injury.
Loncar complained of headaches, dizziness, vomiting, nausea, and
mental disorientation.
Loncar brought a personal injury negligence action
against the other driver, Kenneth Gray. Gray admitted liability,
but disputed the amount of damages attributable to the accident.
He argued that Loncar had exaggerated her symptoms and had misled
her own doctors by falsely claiming to have suffered a loss of
consciousness at the time of the accident. He also argued that
Loncar's symptoms predated the accident, and called Loncar's ex-
husband as a witness to testify that this was the case.
During the trial, Superior Court Judge Sen K. Tan made
several evidentiary rulings that Loncar now contests. The court
broadly excluded medical records and evidence regarding Loncar's
prior medical history, but allowed her estranged ex-husband to
testify about her medical history. The trial court also excluded
evidence of Loncar's Medicaid and Medicare coverage and testimony on
the details of her divorce settlement. In addition, it admitted
some medical records without requiring physician testimony to
establish a foundation for their admissibility.
The jury awarded Loncar damages for past medical
expenses, wage loss, pain and suffering, and loss of enjoyment of
life. But it did not award any damages for future expenses,
losses, or suffering, or for her children's loss of parental
consortium; and the jury's award of $21,435.26 for past medical
expenses was only half of the $42,870.52 in medical bills which
Loncar entered into evidence. The total award was $29,435.26.
Loncar moved for a new trial, but the superior court denied her
motion. Loncar now appeals.
III. STANDARD OF REVIEW
We review the trial court's conclusions of law de novo [Fn. 1]
and review its decisions to admit or exclude evidence under the
abuse of discretion standard.[Fn. 2] To prevail on her appeal of the
trial court's evidentiary decisions, Loncar must show that those
decisions were erroneous and had a substantial influence on the
outcome of the case.[Fn. 3] Under Alaska Civil Rule 61, errors in the
admission or exclusion of evidence are grounds for reversal only if
failure to reverse "appears to [this] court inconsistent with
substantial justice."
In reviewing the denial of a motion for a new trial, we
have said:
The decision to grant or deny a new trial is
within the trial court's discretion. If there
is an evidentiary basis for the jury's
decision, the denial of a new trial must be
affirmed. However, if the evidence supporting
the verdict was completely lacking or so
slight and unconvincing as to make the verdict
plainly unreasonable and unjust, then we must
reverse the denial of a motion for a new
trial. In reviewing such denials, we must
view the evidence in the light most favorable
to the non-moving party.[Fn. 4]
We will "not interfere with the exercise of [the trial judge's]
discretion [to deny a motion for a new trial] except in the most
exceptional circumstances and to prevent miscarriage of justice." [Fn. 5]
IV. DISCUSSION
A. Loncar's Pre-Accident Medical History
Loncar argues that the superior court erred in admitting
testimony regarding her prior medical history. We conclude that
the superior court did not err.
Prior to trial, the superior court excluded evidence of
Loncar's less recent medical history, including records of doctors'
visits in 1983, 1986, and 1989 -- six to twelve years before the
accident.[Fn. 6] The court's initial order implied, and later
reiterations confirmed, that Loncar's medical history during this
period would be considered collateral, and all evidence regarding
it would be excluded, unless the defense could offer "a medical
opinion laying [a] nexus between her prior medical condition and
the present medical condition." The court informed the parties
that it would require an offer of proof outside the presence of the
jury before admitting any records, expert testimony, or lay
testimony about the records and associated medical history. Judge
Tan later clarified, however, that Loncar's ex-husband would be
permitted to testify about her condition at the time immediately
before the accident. Taken together, the court's orders established
that recent medical history was relevant and admissible, but that
longer-term medical history -- including Loncar's 1983-1989 medical
records -- would be deemed collateral unless medical testimony
established its relevance.
On the fifth day of trial, Loncar's attorney asked a
neuropsychologist, Dr. Paul Craig, questions that Judge Tan later
deemed to have opened the door to prior medical history evidence.
Loncar asked Dr. Craig whether it would be important for his
diagnosis to know if Loncar had suffered similar symptoms "in the
year or the two years" before the accident, and whether, if there
had been prior doctors' appointments, "it's fair to say that the
greater the time period between the treatments, the less
significant they are." Dr. Craig testified that ongoing pre-injury
treatment for serious headaches could be significant, and
increasingly significant the closer in time the treatment was to
the post-accident headaches.
Loncar's attorney also asked a lay witness, Loncar's
friend Gordana Dadic, whether Loncar had complained of headaches or
dizziness before the accident; Dadic said no.
Later, despite the apparently still-valid preclusion
order, Gray's attorney asked Mike Loncar about his ex-wife's
dizziness, nausea, headaches, and vomiting in the ten years before
the accident. Mr. Loncar testified that she had complained of the
symptoms for that entire period.
Judge Tan admitted the testimony over Loncar's objection,
because he found that Loncar herself had opened the door to this
line of questioning by asking Dr. Craig about prior ongoing
symptoms and treatment. Judge Tan instructed the parties that "Mr.
Loncar can testify as to his personal observations of the
condition. We're not talking about admitting medical testimony or
medical exhibits. . . . The door is open slightly, but not
everything comes in."
Following this ruling, Mr. Loncar's non-expert and
allegedly hostile testimony was admitted, but the medical records
suggesting that Loncar's previous ailments were far in the past and
possibly unrelated to her 1995 accident were not. Loncar did not
attempt to remedy this disadvantageous situation by moving to
modify Judge Tan's earlier preclusion order so that she could bring
in the records or other medical history evidence of her own.
However, she now argues that the superior court erred in admitting
Mr. Loncar's testimony.
We conclude that the superior court did not err in ruling
that Loncar had opened the door to her ex-husband's testimony. Under
our case law, a party may open the door to evidence on a subject by
putting that subject at issue in the case.[Fn. 7] Because Loncar did put
her medical history at issue in this case, the superior court was
within its discretion in allowing Gray to present Mr. Loncar's
testimony about the subject.[Fn. 8]
We considered the issue of evidentiary door-opening in
Worthy v. State, a sexual assault case against defendant Conrad
Worthy.[Fn. 9] The prosecution in that case sought to generate sympathy
for the victim and antipathy for Worthy by eliciting testimony that
the victim had been raped once before, and that Worthy made
reference to the previous rape during his assault.[Fn. 10] But the trial
court excluded testimony tending to suggest that the victim's
previous rape allegations had in fact been unfounded.[Fn. 11] We held
that the trial court erred in excluding this evidence, because once
the prosecution "opened the door" to the subject of the previous
rape accusation, the defense was "entitled to litigate the truth or
falsity" of that accusation. [Fn. 12]
It was Loncar who raised the issue of her previous
medical history at trial. Thus, the superior court did not err in
concluding that Loncar opened the door to Mr. Loncar's lay testimony
about her medical history. Dr. Craig introduced the subject in
response to Loncar's questions. Moreover, Loncar herself had
already elicited lay testimony about medical history from Dadic.
Given this background, it was not an abuse of discretion for the
superior court to admit additional lay testimony about Loncar's
long-term medical history. [Fn. 13]
Loncar argues that she questioned Dr. Craig about medical
history only to cure the defense's insinuations that she had lied
to her doctor about her prior medical condition.[Fn. 14] But Loncar did
not object to Gray's insinuations at the time, and she does not now
explain why statements by the defense should immunize her own
intrusion into the subject area covered by the preclusion order.
Loncar also points out that her questions to Dr. Craig carefully
focused on the period of one to two years before the accident.
However, both Dr. Craig's replies and Loncar's own earlier questions
to her lay witness raised the issue of ongoing health problems and
ongoing treatment.
B. Medicare and Medicaid Benefits
Despite Loncar's challenge, we affirm the superior court's
exclusion of evidence regarding Loncar's Medicare and Medicaid
benefits.[Fn. 15] Under Evidence Rule 403, exclusion is appropriate if
the evidence's "probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury."
The superior court did not abuse its discretion in applying this
standard to exclude Medicaid evidence.
Loncar asserts that she should have been allowed to
introduce evidence of her Medicaid coverage for two reasons.
First, she claims that the humiliation of accepting public
assistance was part of her pain and suffering, and relevant to
damages. Second, she argues that the defense opened the door to
Medicaid evidence by eliciting from one of Loncar's own witnesses
testimony that Medicaid had covered some of Loncar's bills. Loncar
claims that she was prejudiced by this evidence because the jury
never learned that she was in fact obligated to repay Medicaid
benefits out of her award from this lawsuit.[Fn. 16] Loncar raised the
same arguments before the superior court, but the court rejected
the arguments and excluded evidence of Medicaid benefits.
1. Medicaid evidence and pain and suffering damages
Loncar argues that Medicaid evidence should have been
admissible because accepting public assistance caused her
additional emotional distress and pain and suffering. The superior
court gave Loncar broad leeway to introduce evidence on this claim,
explaining:
Ms. Loncar can testify about her medical
condition, she can testify about her medical
bills she has had, she can testify about her
difficulty in obtaining medical care, she can
testify about her bills and the amount that
[has] been run up without mentioning
insurance.
But if Loncar were permitted to introduce evidence of Medicaid
payments, the court continued, the door would be opened to evidence
from both sides on the larger issue of insurance payments -- and
this potentially very large body of evidence would "create more
confusion of the issues than . . . any probative value it may
have." The superior court's conclusion on this issue is not
unreasonable and certainly is not an "error [that] affected the
substantial rights of a party;"[Fn. 17] we therefore affirm its ruling on
this issue.
2. Medicaid evidence and jury concerns about double
recovery
There was potential for prejudice against Loncar because
the jury heard a reference to her Medicaid coverage, but never
learned that Loncar had to repay some benefits out of her recovery
in this case.[Fn. 18] However, the court issued a jury instruction to
cure this prejudice, and Loncar did not request any other
appropriate relief. Therefore, we will not reverse on these
grounds.
The collateral source rule "exclud[es] evidence of other
compensation on the theory that such evidence would affect the
jury's judgment unfavorably to the plaintiff on the issues of
liability and damages."[Fn. 19] Under this rule, the superior court
appropriately excluded Medicaid evidence at the beginning of the
trial.
The jury learned of Loncar's Medicaid coverage, however,
when Gray asked one of Loncar's doctors about outstanding bills, and
the witness mentioned that Medicaid covered some of them. Loncar's
concern is that the jury's exposure to incomplete information about
her Medicaid benefits led it to believe that her bills were already
covered and that her damages should be reduced accordingly.
But Loncar failed to object when the witness testified.
Instead she requested two possible cures, which we discuss below,
shortly thereafter. The superior court denied one request and
granted the other. We find no error in its actions.
At trial, Loncar argued that Gray had opened the door to
further Medicaid evidence, and that she should be permitted to
question the witness further on the subject in order to correct any
jury misimpressions. She renews the argument in this appeal. But
the superior court found that the door was not open to this
evidence, and we agree. Gray did not open the door, because he did
not make insurance coverage an issue in the case:[Fn. 20] He neither
directly questioned any witnesses about Loncar's insurance[Fn. 21]nor
hinted to the jury that Loncar had another source of funding for
her medical bills. Instead, Loncar's witness mentioned Medicaid
sua sponte. Given that it was not the defense that brought the
Medicaid issue into the trial, we cannot conclude that the superior
court abused its discretion in continuing to exclude Medicaid
evidence.
At trial, Loncar also requested that the superior court
explain in the jury instructions that Loncar was obliged to repay
Medicaid. The court agreed that a curative instruction was
warranted, and instructed the jury to "award the full amount of
necessary medical expenses . . . regardless of whether they have
been paid or who actually paid the bill. Following the trial, the
law provides procedures to ensure that this issue is properly
addressed." The instruction did not explicitly detail Loncar's
repayment obligations, but Loncar did not object to the form of
this instruction at the time that it was proposed. Nor did she
propose any alternative instruction. Thus, to the extent that her
appeal complains of this instruction, we reject her argument.
We see no abuse of discretion in the superior court's
treatment of the Medicaid evidence, and therefore decline to
overturn these evidentiary decisions.
C. Divorce
Loncar claims that the superior court excluded relevant
evidence of her ex-husband's bias by ruling that the couple's
divorce proceedings were irrelevant to the case.[Fn. 22] However, the
court never excluded this evidence. It permitted Loncar to
question her husband extensively about his alleged bias, his anger
over the divorce, and his motives for testifying against her. The
only limit which the court placed on Loncar's cross-examination
pertained not to bias but to the precise financial terms of the
divorce settlement. Therefore, we affirm the trial court's
evidentiary rulings regarding the Loncars' divorce.
D. Post-Accident Medical Records
Loncar argues that the superior court erred in admitting
all of the medical records of testifying physicians and all of the
records they relied on. She seems to raise two arguments, both of
which are resolved by our recent decision in Dobos v. Ingersoll.[Fn. 23]
Loncar implies that the records of doctors who did not
testify are barred as hearsay. However, in Dobos we applied
Evidence Rule 803 to conclude that medical records "fall squarely
within the business records exception to the hearsay rule."[Fn. 24]
Loncar also argues that admission of the records was
prejudicial because she did not have the opportunity to cross-
examine all of the doctors. However, "if [Loncar] wished to
question [the] doctors, [s]he could have called them to the stand
[her]self."[Fn. 25]
E. Loncar's Motion for a New Trial
The superior court was within its discretion in denying
Loncar's motion for a new trial. Loncar argues that the court
should have granted her motion because the jury award was
unsupported by the evidence. We rejected a similar argument in
Richey v. Oen.[Fn. 26]
In Richey v. Oen, Richey was injured in a traffic
accident. She received a directed verdict on the issue of
negligence and presented extensive evidence of back problems, but
the jury awarded her no damages.[Fn. 27] We found that the trial court
did not abuse its discretion by denying Richey a new trial. The
evidence supporting the verdict was not "so slight and unconvincing
as to make the jury's verdict plainly reasonable and unjust," we
concluded.[Fn. 28] Because the jury had heard "a plethora of conflicting
testimony," and because the plaintiff had seemingly sought to
conceal her pre-accident history of back problems, an evidentiary
basis existed for the jury to find no causation and thus no
damages.[Fn. 29]
The jury in this case also had an evidentiary basis to
doubt both the causation and the extent of Loncar's claimed injury.
The jurors heard testimony suggesting that Loncar had experienced
the same symptoms before the accident, testimony suggesting that
she had misled her doctors about whether she lost consciousness at
the time of the accident, and testimony that the doctors' diagnoses
would have been different if they had not believed Loncar's claim to
have lost consciousness.
Loncar cites cases holding that, where evidence of pain
and suffering is uncontradicted,[Fn. 30] or where a jury awards medical
expenses,[Fn. 31] denial of damages for pain and suffering is inadequate
and inconsistent. However, Loncar was not denied damages for pain
and suffering -- she received a damages award of $2,500 for past
pain and suffering. Therefore, these cases are not relevant to her
appeal.
V. CONCLUSION
Because Loncar has not demonstrated that the trial court
abused its discretion in any evidentiary decisions or in denying
her a new trial, we AFFIRM the decision below.
1. See Walsh v. Emerick, 611 P.2d 28, 30 (Alaska 1980).
2. See Williams v. Utility Equip., Inc., 837 P.2d 1112, 1115
(Alaska 1991).
3. See Myers v. Robertson, 891 P.2d 199, 208 (Alaska 1995)
(citing Loof v. Sanders, 686 P.2d 1205, 1209 (Alaska 1984)).
4. Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 445 (Alaska
1989) (quoting Hayes v. Xerox Corp., 718 P.2d 929, 933 (Alaska
1986)).
5. Scavenius v. City of Anchorage, 539 P.2d 1161, 1166
(Alaska 1975).
6. The records indicate that in 1983 Loncar sought treatment
for headaches and nausea, possibly associated with her recent
pregnancy; in 1986 she visited a doctor to complain of headaches,
possibly migraines triggered by MSG or other food additives; and in
1989 she complained of breast pain accompanied by intermittent
dizziness. These records were never admitted into evidence.
7. See Worthy v. State, 999 P.2d 771, 775 (Alaska 2000).
Because we find that Loncar opened the door to evidence of her
medical history, thereby making the evidence independently
relevant, we need not decide whether the evidence was actually
collateral. See id. at 774 (stating that "[w]e need not decide
which [rule of admissibility] applies. . . . Because the state
interjected the [possibly collateral issue] into the case and made
its occurrence a central part of the case against Worthy, the issue
became independently relevant.").
8. We note that Gray inappropriately questioned the witness
about medical history without first moving the court for
modification of its earlier protective order excluding such
evidence. However, because Judge Tan did determine that the door
was open to medical history evidence and the protective order was
no longer in effect, Gray's failure was harmless.
9. 999 P.2d at 775.
10. See id. at 774.
11. See id. at 773.
12. Id. at 775.
13. See Landis v. Municipality of Anchorage, 915 P.2d 614,
616 n.1 (Alaska 1996) (applying abuse of discretion standard for
evidence exclusion decision).
14. Loncar does not properly cite to the record for "the
defense's insinuations." (The citations that she lists refer only
to Loncar's own examination of Dr. Craig.) She probably means to
refer to Gray's question:
Now, if you knew at that time, through another
source of information or however, that the
patient had not hit her head and had not lost
consciousness, and if you knew from another
source that she had had very serious headaches
prior to the accident, would that have changed
your diagnosis?
15. For brevity, this opinion refers to the benefits
collectively as Medicaid.
16. See AS 47.05.070(b) (establishing Medicaid's subrogation
rights to awards or judgments received by aid recipients).
17. Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).
18. See AS 47.05.070(b). Courts reduce awards post-verdict
when plaintiffs have already received insurance payments and are
not obligated to repay the insurer. See AS 09.17.070(c). But
courts cannot increase awards in cases where the plaintiff does
have to repay her insurer. It is therefore particularly important
for courts to ensure that juries are not led by partial evidence of
insurance to suspect wrongly that a plaintiff's bills have already
been paid, and that an award will constitute double recovery.
19. Tolan v. ERA Helicopters, 699 P.2d 1265, 1267 (Alaska
1985). A second prong of the common law collateral source rule,
which "prohibit[ed post-verdict] reduction of plaintiff's damages
when he ha[d] received compensation from another source," id., was
abrogated by AS 09.17.070. The statute instead requires judges to
reduce awards to reflect unsubrogated payments from collateral
sources. (Unsubrogated payments are payments which the plaintiff
will not have to reimburse out of her court award.) AS
09.17.070(c).
20. See Worthy v. State, 999 P.2d 771, 775 (Alaska 2000).
21. When the witness mentioned Medicaid, Gray had asked her
only the following: "And I take it you have an outstanding bill of
about $16,000?"
22. Loncar also now insinuates that some of her ex-husband's
testimony was hearsay. She did not raise this objection at trial,
and therefore waived it. See Alaska R. Evid. 103(a)(1) (requiring
a "timely objection or motion to strike . . . stating the specific
ground of [the] objection"); Williams v. Utility Equip., Inc., 837
P.2d 1112, 1116-17 (Alaska 1992) (holding that plaintiff waived his
objection by not making specific objections when testimony was
presented).
23. 9 P.3d 1020 (Alaska 2000).
24. Id. at 1027.
25. Id. at 1028.
26. 824 P.2d 1371, 1374 (Alaska 1992).
27. See id. at 1372-73.
28. Id. at 1376.
29. Id. at 1375-76.
30. See Walker v. Alaska Road Comm'n, 388 P.2d 406, 407
(Alaska 1964).
31. See Urban v. Ziegler, 634 N.E.2d 1237, 1242-43 (Ill.
1994), rev'd, Snover v. McGraw, 667 N.E.2d 1310, 1314-15 (Ill.
1996).
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