You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
John's Heating Service v. Lamb (5/10/2002) sp-5572
John's Heating Service v. Lamb (5/10/2002) sp-5572
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
JOHNS HEATING SERVICE, )
) Supreme Court No. S-9042/9052
Appellant/Cross-Appellee, )
) Superior Court No.
v. ) 3KO-93-553 CI
)
MICHAEL A. LAMB and CYNTHIA ) O P I N I O N
E. JOHNSON-LAMB, )
) [No. 5572 - May 10, 2002]
Appellees/Cross-Appellants. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
John J. Reese, Judge.
Appearances: Michael D. Corey, Sandberg,
Wuestenfeld & Corey, Anchorage, for
Appellant. Sarah J. Tugman, Anchorage, for
Appellees.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Michael and Cynthia Lamb sued Johns Heating Service
claiming that Johns Heating negligently failed to repair their
furnace or to warn the Lambs of its dangerous condition. Johns
Heating raised a statute of limitations defense that the trial
court precluded in a summary judgment order. The trial court
also rejected Johns Heatings pretrial challenge to the
admissibility of the testimony of several of the Lambs medical
experts. After trial, the jury returned a verdict against Johns
Heating, reduced by the comparative negligence of the Lambs.
Johns Heating appeals the grant of summary judgment on its
statute of limitations defense, the admission of expert
testimony, jury instructions on negligence, the denial of summary
judgment on causation of Michael Lambs retirement, the grant of
prejudgment interest on future economic damages, and the validity
of a joint offer of judgment. The Lambs cross-appeal the jury
instruction on comparative negligence, cross-appeal the admission
of evidence of Michael Lambs disability retirement, and claim
inconsistency in the verdict. Because a disputed issue of fact
exists as to when the statute of limitations began to run, we
reverse the grant of summary judgment and remand that issue to
the superior court for further proceedings. Because our law does
not allow prejudgment interest on future damages, we strike that
award. On the issue of whether an unapportioned joint offer by
joint offerors is valid to invoke the enhanced interest penalty
provisions of Alaska Civil Rule 68, we conclude that such an
offer was valid in this case. On all of the numerous other
issues on appeal and cross-appeal, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
In August 1991 Michael and Cynthia Lamb bought and
moved into a problem-plagued house1 in Kodiak. On October 15
they called Johns Heating to check on their furnace. Johns
Heating sent an employee, Tim Galloway, to investigate the
problem.
The Lambs alleged that they told Galloway that their
furnace was not functioning properly, that the furnace seemed to
be circulating soot throughout their home, and that they were
concerned by the persistent smell of fuel in the house. As
evidence of the problem, Cynthia showed Galloway Bounce fabric
softener sheets that she had been inserting in the floor vents to
filter out soot and grime that she suspected the furnace was
circulating throughout the house. The Lambs claimed that
Galloway did not think the soot-filtering Bounce sheets were a
sign of furnace trouble and that he told Cynthia she needed to do
a better job of cleaning the house.
Johns Heating disputed the Lambs version of the facts.
Johns Heating claimed that the Lambs informed neither Galloway
nor the employee that answered the Lambs telephonic request for
service that they suspected the furnace was circulating flue
gases or other combustion byproducts into the living space.
Neither of the business records relating to the Lambs service
call showed that Johns Heating was informed of, or suspected, a
more serious furnace problem.
Both parties agreed that all Galloway did was level the
fuel tank and relight the furnace.
The Lambs began to suffer physical effects from what
they later alleged was carbon monoxide poisoning caused by their
furnace. Both said that they started to feel tired and confused,
and that they lacked concentration and memory.
The Lambs continued to live in the house and to use the
furnace until January 31, 1993. At that time, they called Jerry
Cloudy at Chase Plumbing, another furnace repair and heating
business in Kodiak, to inspect their furnace. Cloudy informed
the Lambs that their furnace was probably circulating carbon
monoxide and other flue gases throughout their home and advised
them not to use it while they were home until they could get it
replaced. The Lambs had the furnace replaced six days later.
However, they continued to suffer residual physical and
neurological problems that they attributed to long-term, low-
level carbon monoxide exposure2 from their malfunctioning
furnace.
B. Proceedings
The Lambs filed suit against a number of defendants,
including Johns Heating, on December 23, 1993. Johns Heating
asserted the statute of limitations as an affirmative defense.
Johns Heating also moved for summary judgment on the statute of
limitations issue, claiming that its only contact with the Lambs
was on October 15, 1991, and that the Lambs did not file suit
until December 23, 1993, more than two years later. The trial
court denied Johns Heatings motion for summary judgment and
granted the Lambs cross-motion for summary judgment without
explanation, precluding Johns Heating from asserting a statute of
limitations defense at trial.
Johns Heating also tried to preclude the testimony of
the Lambs medical experts regarding chronic carbon monoxide
exposure. However, the court denied Johns Heatings motion,
concluding that [i]n the case of carbon monoxide exposure, the
scientific community has not yet been able to conclusively
measure specific neurocognitive damages in relation to specific
amounts of exposure. Lack of specific information, however,
cannot permit defendant to shield itself from liability. This
issue is for a jury to decide. The superior court allowed the
Lambs experts to testify.
After a week-long trial in July 1998, the jury rendered
a verdict for the Lambs. The jury awarded $810,000 in damages
for Michael Lamb and $815,000 in damages for Cynthia Lamb. Each
award was composed of both past and future damages. However, the
jury also reduced the awards because it found that both Lambs
were comparatively negligent in continuing to operate the furnace
even though they knew or should have known that it was dangerous
and that it was injuring them. The jury found Michael forty-five
percent at fault for his injuries and found Cynthia forty percent
at fault for her injuries. The verdict was accordingly reduced
by those percentages.
After the jury returned its verdict, the Lambs
submitted a proposed order of final judgment containing interest
calculations and attorneys fees awards. The court adopted the
Lambs proposed order, which applied an enhanced interest rate of
15.5% for its computation of the prejudgment interest on the
jurys award. The court ordered enhanced prejudgment interest
because Johns Heating had not accepted the Lambs pretrial joint
offer of judgment in the amount of $750,000, inclusive of
interest, costs, and attorneys fees.
Johns Heating appeals on six issues: (1) whether the
superior court erred in granting summary judgment in favor of the
Lambs on the statute of limitations issue; (2) whether the Lambs
expert testimony on chronic carbon monoxide exposure should have
been inadmissible; (3) whether the jury instructions on
negligence were in error; (4) whether the superior court erred in
failing to grant summary judgment that Michael Lambs Coast Guard
retirement was due to his back injury and not chronic carbon
monoxide exposure; (5) whether prejudgment interest on future
economic damages that are discounted to the time of trial is an
impermissible double recovery; and (6) whether the Lambs joint
offer of judgment was invalid to trigger the Civil Rule 68
prejudgment interest penalty. The Lambs cross-appeal on three
issues: (1) whether the court erred by giving a jury instruction
on comparative negligence; (2) whether admitting evidence of
Michael Lambs disability retirement violated the collateral
source rule; and (3) whether the jury rendered an inconsistent
verdict by failing to award Michael Lamb past economic damages.
III. STANDARD OF REVIEW
We review a trial courts order granting summary
judgment de novo.3 We draw all reasonable factual inferences in
favor of the non-moving party.4 By our review, we seek to
determine whether genuine issues of material fact exist and
whether the moving party is entitled to judgment as a matter of
law.5
We review the trial courts admission of expert
scientific evidence for an abuse of discretion.6
We review whether a jury instruction is appropriately
tailored to the case at hand under the abuse of discretion
standard.7 Whether a jury instruction properly instructs on the
law, however, is reviewed de novo.8
Finally, questions of law are reviewed de novo.9
IV. DISCUSSION
A. Summary Judgment Was Not Appropriate Because the Date that
the Lambs Reasonably Should Have Discovered that They Were Being
Exposed to Carbon Monoxide Due to Johns Heating Negligence Is a
Disputed Factual Issue.
A. Johns Heating argues that summary judgment was improperly
granted on the statute of limitations issue. Johns Heating notes
that whether the Lambs had sufficient information to prompt
reasonable people to conduct an inquiry to protect their rights
was in dispute when the trial court granted summary judgment.
The Lambs counter by arguing that as a matter of law the statute
of limitations did not begin to run until the Lambs had reason to
believe not only that the furnace was operating poorly but also
to suspect that they were injured and that it had injured them.
The Lambs conclude that the date on which their cause of action
accrued was therefore January 31, 1993, when Jerry Cloudy of
Chase Plumbing told them the furnace was probably malfunctioning.
The superior court apparently agreed with the Lambs since it
granted summary judgment in their favor on this issue.
Alaska Statute 09.10.070(a) states that [e]xcept 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.10
The date on which the statute of limitations begins to
run is a factual question.11 Because the question is fact
dependent, summary judgment ordinarily should not be used to
resolve when a statute of limitations commences.12 Only in the
unusual circumstance in which there exist uncontroverted facts
that determine when a reasonable person should have been on
inquiry notice can a court properly resolve the question as a
matter of law.13 Accordingly, we must determine whether the
superior court had before it uncontroverted facts sufficient to
support its entry of summary judgment.
1. The discovery rule provides the legal test as to when the
statute of limitations began to run on the Lambs negligence
claim.
Where an element of a cause of action is not
immediately apparent,14 the discovery rule provides the test for
the date on which the statute of limitations begins to run.15 As
we have explained,
the statute of limitations does not begin to
run until the claimant discovers, or
reasonably should have discovered, the
existence of all elements essential to the
cause of action. Thus we have said the
relevant inquiry is the date when the
claimant reasonably should have known of the
facts supporting her cause of action. We
look to the date when a reasonable person has
enough information to alert that person that
he or she has a potential cause of action or
should begin an inquiry to protect his or her
rights.[16]
Thus, under the discovery rule there are two possible
dates on which the statute of limitations can begin to run17 and,
in some cases, a third part to our discovery rule, which we
discuss below.18 The first potential date is the date when [the]
plaintiff reasonably should have discovered the existence of all
essential elements of the cause of action.19 The second potential
accrual date is the date when the plaintiff has information which
is sufficient to alert a reasonable person to begin an inquiry to
protect his rights.20 As we explained in Cameron v. State, [t]he
dates are different, since the point when the elements of a cause
of action are discovered may come after and as a result of a
reasonable inquiry.21 As we further explained in Cameron, the
third part of the discovery rule comes into play where a person
makes a reasonable inquiry which does not reveal the elements of
the cause of action within the statutory period at a point where
there remains a reasonable time within which to file suit.22 In
those circumstances, the limitations period is tolled until a
reasonable person discovers actual knowledge of, or would again
be prompted to inquire into, the cause of action.23
The Lambs argument that their cause of action did not
accrue until January 1993, when they were informed that they had
probably been exposed to carbon monoxide by their furnace,
addresses the first potential date provided by the discovery
rule. That is, the Lambs argue that their cause of action did
not accrue until they had actual knowledge of the source of their
injuries.24 Johns Heating argues that the Lambs had information
sufficient to alert a reasonable person to begin an inquiry
before December 22, 1991, or more than two years before the Lambs
had filed suit. Johns Heatings argument addresses the second
accrual date possible under the discovery rule. Accordingly, we
must decide whether the trial court erred by granting summary
judgment when Johns Heating produced evidence supporting the
contention that the Lambs had sufficient information to prompt
reasonable people to begin an investigation.
2. Johns Heating presented sufficient evidence to create a
genuine issue of material fact as to the inquiry-notice date on
which the statute of limitations began to run.
1. Following the inquiry-notice approach under the discovery
rule, Johns Heating suggests that it provided sufficient
information for a jury to find that the Lambs knew or should have
known that they were being exposed to carbon monoxide as early as
October 15, 1991. In the material supporting its summary
judgment motion on this issue, Johns Heating presented evidence
to support its theory that the Lambs should have known that they
were being exposed to combustion byproducts but took no action to
protect themselves. Johns Heating provided evidence that even
under the Lambs version of the facts they knew: (1) that an
apparently malfunctioning furnace was causing them headaches,
prompting them to call for a repair of the furnace;25 (2) that
Galloway did not correct the furnace problem because it continued
to blow soot into the house; (3) that during the October 15
visit, Cynthia showed Galloway corrosion holes in the furnace
cabinet, but Galloway did nothing, noting that he might have to
tear the furnace apart to figure out what was wrong with it; (4)
that Cynthia admitted she knew there was still a problem with the
furnace after the Galloway service call; (5) that although
Cynthia cleaned out the vents and ducts on a fairly regular
basis, the soot problem persisted; (6) that the Lambs switched
from the Bounce sheets to cut-up furnace filters because they
thought furnace filters would do a better job; and (7) that the
fuel smell persisted.
Our holding in Meyer v. State, Department of Revenue,
Child Support Enforcement Division, ex rel. N.G.T.26 shows that
the evidentiary threshold necessary to preclude the entry of
summary judgment is low. In Meyer, a paternity proceeding, we
held that the putative fathers sworn denial that he had engaged
in sexual intercourse with the mother during the period of
conception was sufficient to preclude the entry of summary
judgment despite significant evidence that he was the father
including the results of a genetic test that suggested that he
was the father by a probability of 99.98 percent.27
The facts put forth by Johns Heating, and the
supporting deposition testimony of the Lambs, created a genuine
issue of material fact as to whether the Lambs had sufficient
information to constitute inquiry notice under the discovery
rule. Accordingly, the trial court improperly granted summary
judgment to the Lambs on the statute of limitations issue.
We remand the statute of limitations issue to the
superior court for determination as a preliminary question of
fact.28 Because the superior court granted summary judgment on
the issue, Johns Heating may have additional evidence that it
would have presented at trial.29 In that situation, the superior
court has discretion to hear more evidence on the issue.
On remand, the superior court must first determine
whether the Lambs had sufficient information to alert a
reasonable person to begin an inquiry before December 22, 1991.
If the superior court finds that the Lambs were on inquiry notice
before December 22, 1991, the superior court must also determine
whether the third part of the discovery rule applies. If the
superior court finds that the Lambs were on inquiry notice and
the third part does not apply to toll the statute of limitations,
the Lambs claim would be barred by the statute of limitations,
and the jury verdict against Johns Heating must be vacated.
However, if the superior court finds otherwise, the jury verdict
and award should stand subject to our rulings on the remaining
issues of this appeal.
B. The Superior Court Did Not Abuse Its Discretion in Admitting
the Lambs Expert Testimony.
Johns Heating appeals the superior courts admission of
the testimony of the Lambs experts regarding their injuries from
chronic carbon monoxide exposure. Johns Heating attacks this
admission of evidence on two fronts. First, Johns Heating argues
that the Lambs experts testimony does not meet the admissibility
requirements of State v. Coon30 and lacks sufficient evidentiary
foundation. Johns Heating argues that we must at the least
remand this case so that the trial court can conduct a proper
evidentiary hearing under the Coon standard.
During the pendency of this case, we decided the
relevant test and standard procedure by which trial courts must
evaluate challenged scientific evidence in State v. Coon.31 In
that decision, we moved away from the previous governing standard
derived from Frye v. United States32 and to a standard derived
from Daubert v. Merrell Dow Pharmaceutical, Inc.33 We adopted the
position that the trial court is the gatekeeper34 responsible for
keeping out junk science,35 noting that the evidence rules give
trial courts both the authority and the responsibility to
determine the admissibility of such evidence.36
Our overall intent in Coon was to continue and clarify
our liberal admissibility standard for expert witness testimony.37
While we noted that by abandoning Frye we would sometimes allow
evidence that had not been generally accepted by the scientific
community and exclude evidence that had been generally accepted,
we also noted the unlikelihood that methodologies that were
admitted under Frye and that remain generally accepted in the
appropriate community will be excluded [under Coon].38 The net
effect, then, should be including more expert testimony. The
principal reason for adopting the Daubert standard is to give the
courts greater flexibility in determining the admissibility of
expert testimony, so as to keep pace with science as it evolves.39
Coon listed four factors to be considered by a trial
court in assessing the admissibility of scientific evidence:
(1) whether the proffered scientific theory
or technique can be (and has been)
empirically tested (i.e., whether the
scientific method is falsifiable and
refutable); (2) whether the theory or
technique has been subject to peer review and
publication; (3) whether the known or
potential error rate of the theory or
technique is acceptable, and whether the
existence and maintenance of standards
controls the techniques operation; and (4)
whether the theory or technique has attained
general acceptance.[40]
We noted in Coon that this standard might also be met
by confirmation that the evidence is derived by the scientific
method [or] . . . based on scientifically valid principles.41
Additionally, the Coon requirement may be satisfied by a showing
that either (a) the experts proffered testimony [grew] out of
prelitigation research, or (b) the experts research [was]
subjected to peer review.42
1. The theory that chronic carbon monoxide exposure
is harmful is admissible under Coon and has
sufficient evidentiary foundation.
Johns Heating attacks the Lambs experts testimony based
on three specific shortcomings: (1) although short-term, high-
concentration carbon monoxide exposure is known to be harmful,
insufficient evidence supports the extrapolation that long-term,
low-level exposure is harmful; (2) differential diagnosis43 is
insufficient to prove that carbon monoxide exposure caused the
Lambs injuries; and (3) the Lambs failed to produce sufficient
foundational evidence that they were exposed to carbon monoxide.
Under the flexible Coon test, we review the superior courts
decision for an abuse of discretion.44
The theory that chronic exposure to carbon monoxide has
harmful effects satisfies two of the Coon factors: the theory
enjoys general acceptance and has been published. All five of
the experts, including Drs. McCarthy and Brent for Johns Heating,
agreed that chronic carbon monoxide exposure could be harmful.
Dr. Becker testified more broadly: [C]linicians know that chronic
low-level exposures cause problems in some people. This general
acceptance supports reliability.
Several publications on chronic carbon monoxide
exposure are available. The record contains two: a paper
entitled Memory Disturbances Following Chronic, Low-Level Carbon
Monoxide Exposure and the Indoor Air Pollution guide sponsored in
part by the United States Environmental Protection Agency, which
includes a table showing the effects associated with acute and
less-than-acute blood concentrations of carbon monoxide. In
addition, Dr. Hartlage has recently drafted a paper on chronic
carbon monoxide exposure, which is in the process of peer review
and publication, and Dr. Becker testified to the existence of
other papers, case studies of chronic carbon monoxide exposure.
The reliability of the theory that chronic carbon monoxide
exposure is harmful is sufficiently supported by these
publications and its general acceptance.
Johns Heating argues that because the threshold level
at which carbon monoxide becomes harmful is unknown, the theory
that chronic carbon monoxide exposure is harmful is unreliable.
Johns Heating questions the extrapolation from the fact that
acute exposure causes neurological harm to the theory that
chronic exposure can also cause harm. Other courts have warned
against unwarranted extrapolations and required such evidence to
be reasonable and scientifically valid.45
We conclude that the extrapolation from the fact that
short-term, high-level carbon monoxide exposures are harmful (and
sometimes fatal) to the theory that long-term, low-level carbon
monoxide exposures are also harmful is generally reasonable. And
the published case studies indicate that the theory is
scientifically valid. The analytical gap between the known
harmful acute exposures to carbon monoxide and the unknown
threshold for harmful lower-level, longer-duration exposure is
not fatal to admission of the Lambs experts. Empirical testing
is but one factor in the Coon test.
[W]hile precise information concerning the
exposure necessary to cause specific harm to
humans and exact details pertaining to the
plaintiffs exposure are beneficial, such
evidence is not always available, or
necessary, to demonstrate that a substance is
toxic to humans given substantial exposure
and need not invariably provide the basis for
an experts opinion on causation.[46]
The fact that such testing on humans simply cannot be ethically
undertaken explains and excuses the lack of testing to some
extent. In this case, the lack of empirical testing does not
render the theory so unreliable as to require exclusion.
Johns Heating also challenges the differential
diagnosis methodology by which several of the Lambs experts came
to the conclusion that the Lambs were harmed by chronic exposure
to carbon monoxide.
Johns Heatings argument that the trial court should
have excluded the Lambs experts differential-diagnosis testimony
as scientifically unreliable fails because differential diagnosis
is a standard medical methodology.47 A strong majority of federal
circuits deciding the issue have allowed expert testimony
employing differential diagnosis.48
While an important aspect of assessing
scientific validity (and therefore
evidentiary reliability) is the ability of
other scientists to test or retest a
proponents theory, differential diagnosis
involves assessing causation with respect to
a particular individual. This merely makes
it a different type of science than science
designed to produce general theories; it does
not make it unreliable science.[49]
We decline to hold differential-diagnosis methodologies
inadmissible in light of the medical communitys daily use of the
same methodologies in diagnosing patients.50
Of course, [a] differential diagnosis that fails to
take serious account of other potential causes may be so lacking
that it cannot provide a reliable basis for an opinion on
causation.51 But here that is not the case. Here, doctors
experienced with carbon monoxide exposure performed the
differential diagnosis, which included making physical
examinations, taking medical history, and reviewing clinical
tests. In addition, the diagnosis was bolstered by a temporal
relationship between the symptoms and the possible carbon
monoxide exposure and the discrepancy between Cynthias
performance and verbal IQs corresponding almost uniquely to
carbon monoxide poisoning. An experts causation conclusion
should not be excluded because she has not ruled out every
possible alternative; rather, existing possible alternatives
should affect the weight that the jury gives the experts
testimony.52 The Lambs experts theories are sufficiently reliable
for admissibility under Coon. At most, Johns Heating is arguing
lack of certainty, but a lack of certainty does not preclude the
useful application of a scientifically valid method.
Finally, Johns Heating contends that the Lambs did not
provide any record evidence that they were exposed to carbon
monoxide. According to Johns Heating, there was not an adequate
basis either for the experts to opine that the Lambs were exposed
to carbon monoxide or for the jury to make the same finding.
Although the Lambs did not produce any direct evidence
that they were ever exposed to carbon monoxide, such as ambient
air measurements of carbon monoxide in their home or blood
samples indicating elevated carboxyhemoglobin levels taken while
the allegedly defective furnace was operating, they did provide
circumstantial evidence. For instance, they provided the
testimonial evidence of Cloudy and Clark that an improperly
operating furnace with corroded components could introduce carbon
monoxide into a home. And they provided pictures documenting the
corroded condition of their furnace. Thus, there was an
evidentiary footing from which both the Lambs experts and the
jury could build a logical framework of facts indicating the
Lambs were exposed to carbon monoxide.
2. The superior court did not commit reversible error by
failing to hold an evidentiary hearing under the Coon standards
before admitting the Lambs experts testimony.
Johns Heating asserts that the trial court should have
conducted a more thorough evidentiary inquiry before admitting
the Lambs experts scientific testimony. Johns Heating argues
that the trial court effectively abandoned its gatekeeper role by
failing to probe the validity and scientific bases of the Lambs
evidence when it was challenged in a pretrial motion. We note,
however, that Johns Heating merely filed a motion in limine to
preclude the Lambs experts testimony. Because Johns Heating did
not ask the superior court for an evidentiary hearing, it
effectively waived its right to one.53
In addition, we conclude that such a hearing was
unnecessary in this case. Although a trial court should conduct
an evidentiary hearing and perhaps even select its own
independent expert witness or appoint an expert advisor when a
proper challenge is brought to the admissibility of scientific
evidence or testimony,54 the trial court did not commit error by
failing to conduct a hearing here. Neither the scientific
methodology nor the evidentiary foundation was significantly in
question in this case.
In sum, the Lambs experts theories are sufficiently
reliable for admissibility under Coon and have adequate
evidentiary foundation. Also, the trial court was not required
to hold a Coon admissibility hearing sua sponte. Accordingly,
the trial court did not abuse its discretion by admitting the
testimony of the Lambs medical experts.
C. The Superior Court Properly Treated the Lambs Claim as a
Professional Negligence Claim; It Committed Harmless Error by
Excluding the Testimony of Qualified Experts on the Standard-of-
Care Issue.
Johns Heating argues that the trial court erred by
deeming this a professional negligence case. This raises two
issues. The first is whether the actions of Galloway, the Johns
Heating employee who responded to the Lambs request for service,
should be held to a standard of care attributable to that of a
skilled furnace repairperson acting under like circumstances.
The second issue is whether expert testimony was required to
establish the relevant standard of care. Johns Heating also
argues that the superior court abused its discretion by excluding
all testimony on the standard of care except that of Pat Clark,
one of the Lambs expert witnesses.
1. Because the level of skill and knowledge required of a
competent furnace repairperson is specific to the skill of
furnace service and repair, the Lambs claim is one for
professional negligence.
Johns Heating argues that this case does not fall under
the rubric of professional negligence. We disagree. A claim
that a provider of skilled services committed negligence states a
claim of professional negligence.55
It is a general rule of law that, when a
person holds himself out to the public in any
particular employment, work, or trade, there
is an implied engagement with those who may
employ him that he and his employees in that
trade or business possess that reasonable
degree of knowledge and skill which is
ordinarily possessed by others engaged in the
same business or trade; and that he and they
will perform the services which he may be
engaged to do, diligently and faithfully, and
with that skill and prudence ordinarily
possessed and observed by others engaged in
the same or like employment.[56]
Courts have applied the professional negligence standard to
trades persons including machinists, electricians, and plumbers.57
Furnace repair is a similar trade. Thus, the superior court did
not err by treating this case as one for professional negligence.
In addition, Johns Heatings argument that this is not a
professional negligence action is inconsistent with its proffered
Jury Instruction 13. Modeled after the jury instruction at issue
in Pepsi Cola Bottling Company v. Superior Burner Service,58 Jury
Instruction 13 sets out the standard for professional negligence:
The defendant held itself out to the
public generally as a qualified heating
service company. The defendant was required
to exercise that degree of skill in handling
the job for which it was called by the
plaintiffs which a reasonably prudent,
skilled and qualified heating service company
would exercise under the circumstances. If
the defendant failed to use that degree of
care and skill in performing the task, it was
negligent toward the plaintiffs.[59]
Johns Heatings argument that this language does not set
out a professional standard of care is not well taken. The
instruction explicitly calls for a standard of care that depends
upon the relevant skill and care that a reasonably prudent,
skilled and qualified heating service company would exercise
under the circumstances, not the skill or care that a reasonably
prudent person would exercise, as would be the case if this was a
claim for ordinary negligence.
2. The superior court did not err by limiting the jurys
consideration of the standard-of-care issue to the evidence
presented by expert witnesses.
Johns Heating argues that [i]t is difficult to imagine
less need for expert testimony concerning [the] standard of care.
While it is true that expert testimony is not required to
establish the standard of care in all cases of professional
negligence,60 the trial court did not abuse its discretion by
limiting the evidence on the standard of care to the testimony of
the expert witnesses.
The trial court was correct in ruling that only
witnesses with specialized knowledge of the furnace repair trade
were competent to testify directly to the standard of care. We
note that under Alaska Evidence Rule 702, whenever a party
intends to offer evidence concerning any scientific, technical,
or other specialized knowledge, the party must establish that the
witness who will offer this evidence possesses the knowledge,
skill, experience, training, or education to offer an informed
opinion on the subject.61 We believe that the proper procedures
for a furnace repairperson to follow on a service call are
sufficiently technical that only a person with specialized
training, knowledge, or experience in the subject of furnace
repair could properly opine on the matter. Moreover, Johns
Heating points to no other evidence entered into the record by
either party that would have assisted the jury in determining the
standard of care.62 Accordingly, the trial court correctly
limited the jurys consideration of this issue to the evidence
provided by witnesses with specialized knowledge and experience
in the field of furnace service and repair.
3. Jury Instruction 14 improperly excluded relevant expert
testimonial evidence.
Johns Heating argues that the court abused its
discretion by excluding all testimony on the standard of care
except the testimony of Pat Clark, the Lambs expert witness on
furnaces and heating systems. The superior court instructed the
jury to consider only Pat Clarks testimony in deciding the
standard of care:
In order for you to decide whether there
was negligence in this case, you shall first
decide what level of knowledge, skill and
care other reputable furnace repairmen would
have used under similar circumstances. You
shall make this decision only on the basis of
the opinion offered by Pat Clark, a furnace
repairman who has testified as an expert on
the standard of care.[63]
Alaska Rule of Evidence 702(a) controls the
admissibility of expert testimony.64 Evidence Rule 702(a)
explicitly allows a person with relevant skill, experience, or
training that forms the basis for specialized or technical
knowledge to assist the trier of fact in assessing an issue. In
Colt Industries Operating Corp., Quincy Compressor Division v.
Frank W. Murphy Manufacturer, Inc.,65 we held that the trial court
abused its broad discretion by precluding the plaintiffs
mechanical engineering expert from testifying about an alleged
design defect in a particular type of switch gauge because the
mechanical device at issue was not specifically within the
witnesss expertise.66 In Colt Industries, we emphasized that
Evidence Rule 702 requires simply that the witness special
knowledge must assist the trier of fact to understand the
evidence or to determine a fact in issue.67 We also specifically
rejected a reading of Evidence Rule 702 that would require
expertise in precisely the area upon which the expert proposes to
comment.68
Here, both Cloudy and Butler possessed specialized
knowledge as to the heating service business. Both men were
professionals in the heating services business in Kodiak: Cloudy
had fifteen to twenty years of experience in the heating business
as well as relevant carbon monoxide training; Butler had twenty-
five years of heating service experience in the Kodiak area.69
The exclusion of their testimony by Jury Instruction 14 denied
Johns Heating a witness to rebut Clarks assertions about the
appropriate standard of care for a heating service professional.
In addition, the exclusion prevented the jury from considering
relevant testimony from Cloudy that may have been helpful. Since
there was no rational distinction to be drawn between the
relevant training and experience of Clark, Cloudy, and Butler, it
was an abuse of discretion for the trial court to instruct the
jury to ignore the testimony of Cloudy and Butler on the standard-
of-care issue.
The superior courts exclusion of Cloudy and Butlers
testimony, although erroneous, was harmless. Johns Heating
summarizes Butlers testimony as simply that he believed Mr.
Galloways actions were appropriate. Our examination of Butlers
testimony does not reveal anything more helpful to Johns Heatings
position. Since a conclusory statement by an employer that his
employees actions were appropriate does not help to substantively
determine the applicable standard of care,70 the trial courts
exclusion of this testimony was harmless. And since our
examination of the record reveals that Cloudys testimony was more
damaging to Johns Heating than it was helpful,71 we determine that
the courts instruction to look only to Pat Clarks testimony on
the standard of care was also harmless. Accordingly, we will not
disturb the trial courts judgment on the basis of Instruction 14.
D. The Trial Court Correctly Refused to Attribute Michael Lambs
Cessation of Work Solely to His Back Injury.
Johns Heating also makes two arguments that challenge
the trial courts legal treatment of Michaels back injury. First,
Johns Heating asserts that the superior court should have granted
partial summary judgment that Michaels employment with the Coast
Guard ended because of his back injury, not his possible carbon
monoxide poisoning. Johns Heating notes the inconsistency
between Michaels position in his Coast Guard disability
retirement proceeding that his back was the sole cause of his
inability to work and his position in this litigation that
neurological deficiencies from chronic exposure to carbon
monoxide prevented him from working.
Although the argument made by Johns Heating is not
devoid of merit, the threshold for opposing summary judgment is
very low.72 It is true that the credibility of Michaels claim
that his employment ended due to neurological deficiencies caused
by carbon monoxide exposure is weakened by (1) his prior
inconsistent statement, (2) the statements of his doctors that
Michael was unable to work due to his neurological deficiency and
(3) his interrogatory answer that he was too embarrassed to
mention his mental dysfunction. But the cause of his disability
retirement is a material question for the jury to decide.
Accordingly, we hold that the trial court properly denied Johns
Heating summary judgment on this issue.
Second, Johns Heating argues that quasi-estoppel
precludes Michaels claim that his back injury was not the sole
cause of his disability retirement. Quasi-estoppel precludes a
party from taking a position inconsistent with one . . .
previously taken where circumstances render assertion of a second
position unconscionable.73 We have recognized five relevant
criteria for evaluating a quasi-estoppel claim:
Among the many considerations which may
indicate that an inconsistent position is
unconscionable and the doctrine of quasi-
estoppel should be applied are whether the
party asserting the inconsistent position has
gained an advantage or produced some
disadvantage through the first position; the
magnitude of the inconsistency; whether
changed circumstances tend to justify the
inconsistency; whether the inconsistency was
relied on by the party claiming estoppel to
his detriment; and whether the first
assertion was made with full knowledge of the
facts.[74]
Our analysis of the factors leads us to conclude that
quasi-estoppel is inapplicable here. Michaels doctors testified
that he was unable to work as a firefighter due to his
neurocognitive disability. Even Johns Heatings medical experts
appeared to agree. Michael gained nothing from his original
position because he would have been eligible for disability
retirement benefits for either his back or his neurocognitive
disability. With regards to reliance, Johns Heating has conceded
that the only reliance by Johns Heating on Lambs representations
that his back rendered him incapable to work, [sic] is Johns
Heating tax dollars which fund that disability retirement. In
addition, Michael testified that he did not have full knowledge
of the effects of his exposure to carbon monoxide until after he
applied for disability retirement. His doctors related testimony
noted that people with brain injuries often do not recognize
their injury and frequently suffer from denial. Under these
conditions, failing to argue that his neurocognitive condition
played a part in his disability retirement does not render
unconscionable his later argument that it did. The trial court
did not err by allowing Michael to present his claim.
E. The Trial Court Erred by Awarding the Lambs Prejudgment
Interest on the Future Damages Portion of the Jury Award.
Johns Heating challenges the trial courts award of
prejudgment interest on the portion of the jurys award
attributable to future damages. Johns Heating argues that
awarding prejudgment interest on future damages amounted to an
impermissible double recovery.
A jury award for future damages is discounted to
present value as of the date of the verdict to reflect the fact
that the damages are made part of a recovery before they would
otherwise accrue. In this way, the financial impact of the
passage of time [is] incorporated into the jurys damage award,
[and] any award of prejudgment interest on this amount would
therefore constitute a double recovery.75 For example, in City of
Whittier v. Whittier Fuel & Marine Corp.,76 we reversed the trial
courts award of prejudgment interest on future profits that had
not yet accrued at the time of judgment.77 More recently in
Navistar International Transportation Corp. v. Pleasant,78 we
affirmed a trial courts refusal to award prejudgment interest on
future damages reduced to present value as of the time of trial.79
Here, the court properly instructed the jury on the
issue of reducing the Lambs future damages to their present value
in Jury Instruction 22, which provided in part:
Any award that you make for future economic
loss must be equal to the amount of money
that the plaintiff would need to invest today
so that the total of the amount invested
today plus future investment earnings equals
the amount of the future economic loss when
it will occur in the future.
(Emphasis in original.) Given this instruction to set the future
damages award as of today the date of the verdict no
prejudgment interest should have been awarded on future damages
for the time between the date the complaint was served and the
date the verdict was rendered.
The superior court, however, signed the plaintiffs
submitted final judgment order that contained damages
calculations including prejudgment interest awarded on the future
damages portion of the jury verdict.80
Because the award of prejudgment interest on future
damages caused a double recovery, the trial court erred in
accepting the plaintiffs form of judgment. We remand for a
recalculation without awarding prejudgment interest on the
portion of the jury verdict attributed to future damages.
F. Enhanced Prejudgment Interest Was Warranted in this
Case.
Johns Heating argues that the trial court erred by
awarding an enhanced rate of prejudgment interest on the damages
award. Johns Heating cites Brinkerhoff v. Swearingen Aviation
Corp.81 as authority for the proposition that joint offers of
judgment present apportionment issues that make them
inappropriate for the penalty provision of Civil Rule 68.82 But
Brinkerhoff involved an offer made to joint offerees by a single
offeror. The offer in that case was unapportioned.
Apportionment difficulties are intrinsic to cases involving
unapportioned joint offers because the offerees must agree as to
how proceeds are to be divided (or how the responsibility for
payment should be divided when the offerees are defendants). In
Taylor Construction Services, Inc. v. URS Co.,83 Chief Justice
Rabinowitz, writing for an equally divided court, identified two
factors that should be analyzed in deciding whether a joint offer
should trigger Rule 68 penalties in the context of an offer made
by joint offerors to a single offeree.84 First, if the offer was
inclusive of all the relationships among the parties and their
conflicting claims,85 and second, if no apportionment difficulty
existed,86 the unaccepted offer could trigger Rule 68 penalties.87
We adopt the Taylor dispositional opinions approach today.
Applying the Taylor factors, we conclude that the
unapportioned joint offer in the instant case was a valid Rule 68
offer of judgment. First, there is no question that the
unapportioned offer was inclusive of all of the relationships
among the parties and their conflicting claims. That is, had the
offer been accepted, all claims between the parties would have
been resolved. Second, no apportionment difficulties existed
since the offeree, Johns Heating, was a single entity.
The judgment finally rendered against Johns Heating in
favor of the Lambs was not more favorable to Johns Heating than
the offer. Under these circumstances, the superior court did not
err in applying Civil Rule 68s penalty provisions.
G. The Superior Court Did Not Abuse Its Discretion by Giving a
Jury Instruction on Comparative Negligence.
On cross-appeal, the Lambs challenge the trial courts
jury instruction on comparative negligence. The Lambs argue that
no evidence supported the jury finding of comparative negligence.
The Lambs also argue that the instruction given was ambiguous and
unclear. We reject both arguments.
1. The legal preclusion of comparative negligence in medical
malpractice cases does not extend to the relationship between
homeowners and furnace repairpeople.
The Lambs argue that the trial court abused its
discretion by instructing the jury on comparative negligence when
there was no evidence to support a finding of comparative
negligence. The Lambs primarily argue that they were entitled to
rely absolutely on Galloways alleged assurances of safety. To
support this notion, the Lambs cite a number of cases precluding
comparative negligence instructions when patients relied on the
advice of their physicians.
This theory fails for two reasons. First, a factual
dispute existed regarding whether Galloway had notice of the
allegedly dangerous condition of the furnace and whether he ever
assured Cynthia Lamb that there was nothing to worry about.
Thus, the jury had to decide whether the furnace was in a
defective condition and whether Galloway should have noticed its
defective condition. Second, the physician-patient cases that
preclude a finding of comparative negligence to reduce a
plaintiff-patients award against his or her doctor do not apply
in the context of a repairperson and a homeowner. A furnace
repairperson is not a doctor; the asymmetry of information
crucial to the doctrine that there can be no comparative
negligence by a medical patient does not exist between a furnace
repairperson and a homeowner. Accordingly, the superior court
did not abuse its discretion by giving the comparative negligence
instruction.
2. The jury instruction on comparative negligence was not
ambiguous or unclear.
The Lambs also assert that the jury instruction on
comparative negligence was ambiguous and unclear and that any
findings under it were not supported by evidence. The relevant
instruction, Jury Instruction 30, provides:
I will now define negligence for you, as
it may apply to the Lambs conduct. The Lambs
were comparatively negligent if:
1) the furnace was in a dangerous
condition;
2) either Mike or Cynthia Lamb knew that
the furnace was in a dangerous condition;
3) either Mike or Cynthia used the
furnace; and
4) the use of the furnace legally caused
damage to the person who knew of the
dangerous condition.[88]
The Lambs contend that a lack of connecting ands between the
three elements of the four-element instruction probably confused
the jury. This contention is frivolous. The construction in
which only the last element of a list is joined by an and is a
standard construction of English prose. In this form, the and is
read in between all the elements of the list, although it only
appears prior to the last element. Since a lack of connecting
ands comprises the Lambs only contention that Jury Instruction
30 was ambiguous, we reject this argument.
H. The Superior Court Correctly Allowed the Jury to Consider
Evidence of Michaels Disability Retirement Because the Collateral
Source Rule Did Not Apply.
A. The Lambs appeal the superior courts admission of evidence
regarding Michaels Coast Guard disability retirement, contending
that admission of the evidence violated the collateral source
rule. We disagree.
The collateral source rule serves two roles in Alaska.
First, it prohibits the reduction of a plaintiffs damages when he
[or she] has received compensation from another source.89 Second,
it precludes the introduction of evidence of other compensation
on the theory that such evidence would affect the jurys judgment
unfavorably to the plaintiff on the issues of liability and
damages.90 But evidence of benefits provided to the plaintiff by
an independent party may be admissible if offered for a purpose
other than the diminution of the plaintiffs damages.91
We are skeptical of the rules applicability in a case
where the benefits were ostensibly obtained as the result of an
entirely separate injury, as is the case here. But we need not
decide this issue, because Michael sought and obtained a Coast
Guard disability retirement on the basis of a bad back. When he
later claimed that his neurological condition caused his
inability to work, Johns Heating was entitled to defend on the
ground that this claim was inconsistent with the earlier claim.
While this evidence was harmful to Michael, it was presented for
reasons independent of damage reduction.92 The trial court did
not violate the collateral source rule by admitting evidence of
Michaels disability retirement.
I. The Lambs Waived Their Challenge to the Jurys Special
Verdict that Found that Michael Lamb Did Not Suffer Any Past
Economic Damages Because They Failed To Present that Argument
Before the Jury Was Discharged.
The Lambs also argue that the jury had no evidentiary
basis on which to deny Michael past economic damages. The Lambs
contend that the only evidence on the matter was their experts
testimony and that the experts testimony was that Michaels past
economic damages amounted to $167,270. The Lambs argument
amounts to one that the jurys verdict was inconsistent because it
compensated Michael for past non-economic damages, future
economic damages, and future non-economic damages, but failed to
award Michael anything for past economic damages.93
An inconsistent verdict argument must be raised before
the jury is dismissed.94 The Lambs did not present this issue to
the superior court before the jury was dismissed. The Lambs
therefore waived the argument that the jurys verdict was
inconsistent and cannot bring it for the first time here.95
V. CONCLUSION
Because there was a genuine issue of material fact as
to whether the Lambs had sufficient information to constitute
inquiry notice under the discovery rule, we must VACATE the grant
of summary judgment on the statute of limitations issue and
REMAND for further proceedings on this issue. Because it was
error to award prejudgment interest on the portion of the damages
attributable to future damages, we REVERSE that portion of the
judgment. On remand, if the superior court finds in favor of
Johns Heating on the statute of limitations issue, the jury
verdict and award in the Lambs favor shall be vacated and
judgment entered in favor of Johns Heating. If the superior
court finds in favor of the Lambs on the statute of limitations
issue, the jury verdict and award shall stand, but the superior
court shall recalculate the prejudgment interest at the standard
rate without awarding interest on the future damages portion of
the jury award. In all other respects, we AFFIRM the judgment of
the superior court.
OPINION - SUPREME COURT
APPROVAL FOR PUBLICATION
JOHNS HEATING SERVICE,
Appellant/Cross-Appellee,
DATE: 5/3/02
v.
CASE: S-9042/9052
MICHAEL A. LAMB and CYNTHIA E. JOHNSON-LAMB,
Appellees/Cross-Appellants.
_________________________________________________________________
Proofed by: /s/ R.Tromble /s/ R.McFarland/Blair Marlowe
Approved by: /s/ Walter L. Carpeneti
Justice
CONCURRING OPINION(S): NO
Justices:
DISSENTING OPINION(S): Yes NO
Justices: Eastaugh
COSTS AND ATTORNEY'S FEES: Each side to bear its own costs and
fees.
SPECIAL INSTRUCTIONS: Hold for receipt of dissent approved for
publication.
RETAIN JURISDICTION:
"sp-5572" e-mailed to C.Jones and copy put in "new_opinions" on
server on _5/3/02_. rnt
Op. No. 5572, May 10, 2002.
Transcript Diskette returned to clerk's office? None
_______________________________
1 We reviewed previous litigation brought by the Lambs
against other defendants regarding this house in Brigdon v. Lamb,
929 P.2d 1274 (Alaska 1997).
2 We will refer to long-term, low-level carbon monoxide
exposure with the shorthand terms chronic carbon monoxide
exposure or chronic exposure.
3 United Airlines, Inc. v. Good Taste, Inc., 982 P.2d
1259, 1262 (Alaska 1999) (citing West v. City of St. Paul, 936
P.2d 136, 138 (Alaska 1997)).
4 Id.
5 Id.
6 State v. Coon, 974 P.2d 386, 398 (Alaska 1999).
7 Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d
20, 29 (Alaska 1998).
8 Id.
9 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
10 AS 09.10.070(a).
11 Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 767
(Alaska 1987).
12 Palmer v. Borg-Warner Corp., 818 P.2d 632, 634 (Alaska
1990); Mine Safety Appliances v. Stiles, 756 P.2d 288, 292
(Alaska 1988) (citing Russell v. Municipality of Anchorage, 743
P.2d 372, 375-76 & n.11 (Alaska 1987)).
13 Palmer, 818 P.2d at 634; see Mine Safety, 756 P.2d at
292 (citing Russell, 743 P.2d at 375-76 & n.11).
14 The date on which the statute of limitations begins to
run is usually the date on which the plaintiff incurs injury.
Russell, 743 P.2d at 375 (quoting Gudenau, 736 P.2d at 766-67).
Injury often occurs simultaneously with the corresponding act of
negligence that causes it. However, when the injury is not
apparent at the time of the negligent act, the discovery rule
applies. Pedersen v. Zielski, 822 P.2d 903, 906-07 (Alaska 1991).
15 Pedersen, 822 P.2d at 907.
16 Mine Safety, 756 P.2d at 291 (internal editing marks
and citations omitted).
17 Waage v. Cutter Biological Div. of Miles Lab., Inc.,
926 P.2d 1145, 1148 (Alaska 1996) (quoting Cameron v. State, 822
P.2d 1362, 1366 (Alaska 1991)); see also Sopko v. Dowell
Schlumberger, Inc., 21 P.3d 1265, 1271 (Alaska 2001).
18 Cameron, 822 P.2d at 1367.
19 Id.
20 Id.
21 Cameron, 822 P.2d at 1366. The earliest possible
inquiry-notice date of accrual was October 15, 1991 the date of
the allegedly negligent act of Galloway. The latest possible
actual-notice date was January 31, 1993 the date Cloudy informed
the Lambs that their furnace was probably malfunctioning in a
dangerous fashion.
22 Id. at 1367.
23 Id.
24 We note that this case presents a new variation on the
application of the discovery rule, in that here the plaintiffs
were arguably aware of the negligent act and its possible
consequences and were therefore required to inquire in a timely
manner into whether they were being injured. Previously, we have
addressed situations in which either the injury and its cause
were unknown, or the injury was known, but its cause was not.
Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991). But in
Pedersen we made clear that the discovery rule is broad enough to
cover other undiscovered and reasonably undiscoverable elements
of the cause of action. Id.
25 At his deposition, Michael Lamb was asked, Did you
discuss with Cynthia why you needed to have a heating service
person come out and look at your furnace? He responded, Yes,
because I was sitting up there getting really bad headaches.
This exchange was provided to the superior court during the
briefing on Johns Heatings motion for summary judgment on the
statute of limitations issue.
26 994 P.2d 365 (Alaska 1999).
27 Id. at 368.
28 See Pedersen v. Zielski, 833 P.3d 903, 907 n.4 & 908
(Alaska 1991) (Questions concerning the application of the
discovery rule that are genuine issues of material fact . . .
must be resolved at an evidentiary hearing.) See also Decker v.
Fink, 422 A.2d 389, 394 (Md. Spec. App. 1980) ([T]he judge
becomes the factfinder for purposes of determining the
applicability of the statute of limitations . . . .); Shillady v.
Elliot Community Hosp., 320 A.2d 637, 639 (N.H. 1974) (The
discovery rule . . . [is] based on certain equitable
considerations[, which] . . . require that the interests of the
opposing parties be identified, evaluated and weighed in arriving
at a proper application of the statute. The interpretation and
application of a statute of limitations is traditionally within
the province of the court . . . . This determination by the
court should be made ordinarily at a preliminary hearing in
advance of trial . . . .); Lopez v. Swyer, 300 A.2d 563, 567
(N.J. 1973).
29 [T]he party opposing summary judgment need not produce
all of its evidence but instead must only show the existence of a
genuine factual dispute. Meyer, 994 P.2d at 367 (citing Totem
Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584 P.2d
15, 25 (Alaska 1978)).
30 974 P.2d 386 (Alaska 1999).
31 We assume without deciding that Coon applies here
because both of the parties argued, and the superior court
apparently decided, this issue under the standard adopted in
Coon.
32 293 F. 1013 (D.C. Cir. 1923).
33 509 U.S. 579 (1993).
34 Coon, 974 P.2d at 395.
35 Id. at 396-97.
36 Id. at 393.
37 Id.
38 Id. at 398.
39 Id. at 399.
40 Id. at 395.
41 Id. (quoting Daubert v. Merrell Dow Pharm., Inc.,
(Daubert IV), 43 F.3d 1311, 1316 (9th Cir. 1995)).
42 Id. (quoting Jay P. Kesan, An Autopsy of Scientific
Evidence in a Post-Daubert World, 84 Geo. L.J. 1985, 2003
(1996)).
43 Differential diagnosis, or differential etiology, is
the determination of which of two or more diseases with similar
symptoms is the one from which the patient is suffering, by a
systematic comparison and contrasting of the clinical findings.
Kannankeril v. Terminix Intl, Inc., 128 F.3d 802, 807 (3d Cir.
1997) (quoting Stedmans Medical Dictionary 428 (25th ed. 1990)).
44 Coon, 974 P.2d at 398.
45 Moore v. Ashland Chem., Inc., 151 F.3d 269, 279 (5th
Cir. 1998); Daubert v. Merrell-Dow Pharm., Inc., 43 F.3d 1311,
1319 & n.11 (9th Cir. 1995) (on remand).
46 Westberry v. Ab, 178 F.3d 257, 264 (4th Cir. 1999).
47 Westberry, 178 F.3d at 262; Baker v. Dalkon Shield
Claimants Trust, 156 F.3d 248, 252-53 (1st Cir. 1998); In re
Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 758 (3d Cir. 1994).
48 Baker, 156 F.3d at 252-53; Zuckowicz v. United States,
140 F.3d 381, 385-87 (2d Cir. 1998); Heller v. Shaw Indus., 167
F.3d 146, 154, 156-57 (3d Cir. 1999); Kennedy v. Collagen Corp.,
161 F.3d 1226, 1228-30 (9th Cir. 1998); Ambrosini v. Labarraque,
101 F.3d 129, 140-41 (D.C. Cir. 1996). Only the Fifth Circuit
differs. In Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th
Cir. 1998), the court concluded that the district court did not
abuse its discretion in excluding expert testimony on causation
using differential diagnosis because the expert had not
previously treated a patient with the same chemical exposure and
had no scientific support for the general theory that any level
of exposure to the chemical would cause the diagnosed condition.
Id. at 277-79. The situation here is not comparable because the
Lambs experts all have experience treating carbon monoxide
exposure and because acute carbon monoxide exposure is known to
cause brain damage.
49 In re Paoli R.R. Yard PCB Litigation, 35 F.3d at 758.
50 Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4th
Cir. 1995).
51 Westberry, 178 F.3d at 265.
52 Heller, 167 F.3d at 157; Westberry, 178 F.3d at 265.
53 Matter of C.L.T., 597 P.2d 518, 522 (Alaska 1979) (By
consenting to certain procedures or by failing to object to
others, a party may waive those rights which are arguably
encompassed within due process guarantees.).
54 State v. Coon, 974 P.2d 386, 396 (Alaska 1999).
55 W. Page Keeton et al., Prosser and Keeton on the Law of
Torts 32, at 185-86 (5th ed. 1984); see, e.g., State, Dept of
Natural Res. v. Transamerica Premier Ins. Co., 856 P.2d 766, 772
(Alaska 1993) (stating that [a] design professional has a duty in
tort to exercise reasonable care, or the ordinary skill of the
profession ) (quoting Moloso v. State, 644 P.2d 205, 217 (Alaska
1982)).
56 Pusey v. Webb, 47 A. 701, 702 (Del. Super. 1900)
(applying the professional negligence standard to a blacksmith).
57 Person v. Cauldwell-Wingate Co., 187 F.2d 832 (2d Cir.
1951); Arkansas Machine & Boiler Works v. Moorhead, 205 S.W. 980
(Ark. 1918); Stafford v. Gowing, 18 N.W.2d 156 (Ia. 1945). See
also Jerry L. Moore, Liability of Artisans and Tradesmen for
Negligence, in Professional Negligence 309, 310-11 (Thomas G.
Roady, Jr. & William R. Andersen eds., 1960).
58 427 P.2d 833, 841 (Alaska 1967).
59 Jury Instruction 13 (emphasis added).
60 Johnson & Higgins of Alaska Inc. v. Blomfield, 907 P.2d
1371, 1374 (Alaska 1995) (While expert testimony is generally
required in medical malpractice cases, it is not a general
requirement of all professional negligence actions, especially in
non-technical situations where negligence is evident to lay
people. ) (quoting Kendall v. State, 692 P.2d 953, 955 (Alaska
1984)).
61 Ballard v. State, 955 P.2d 931, 941 (Alaska App. 1998)
(internal quotation marks omitted) (quoting Alaska R. Evid. 702).
62 Johns Heating does argue that the trial court
improperly excluded from the jurys consideration the testimony of
John Butler. We address that argument below. See infra Part
IV.C.3.
63 Jury Instruction 14.
64 Alaska Rule of Evidence 702(a) provides:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.
65 822 P.2d 925 (Alaska 1991) (superseded by statute on
other grounds).
66 Id. at 932.
67 Id. (quoting Norris v. Gatts, 738 P.2d 344, 350 (Alaska
1987)).
68 Id.
69 By comparison, Clark had twenty-seven years of heating
service experience.
70 See generally Kraus v. Newton, 542 A.2d 1163, 1167-68 &
n.4 (Conn. App. 1988) (affirming trial courts instruction to jury
that the employers statement that every employee should use great
care in the performance of his duties was not the standard of
care that plaintiff was required to use but was an appropriate
factor to consider in determining whether plaintiff acted
reasonably).
71 For example, Cloudy testified as follows:
Q: Do you as a furnace repairman concern
yourself with the possible release of
carbon monoxide into a home . . .
A: Yes, you do.
Q: . . . from a furnace?
A: You sure do.
Q: Is that an important consideration to
you?
A: More so all the time.
72 Meyer v. State, Dept of Revenue, Child Support
Enforcement Div., ex rel. N.G.T., 994 P.2d 365, 367-68 (Alaska
1999), discussed supra at 11.
73 Jamison v. Consolidated Util., Inc., 576 P.2d 97, 102
(Alaska 1978).
74 Id. at 102-03.
75 Sebring v. Colver, 649 P.2d 932, 936 (Alaska 1982).
76 577 P.2d 216 (Alaska 1978).
77 Id. at 226.
78 887 P.2d 951 (Alaska 1994).
79 Id. at 959-60.
80 The jury awarded Michael Lamb $45,000 in past damages
and $765,000 in future damages. A forty-five percent reduction
to account for Michaels comparative negligence yields $24,750 in
past damages and $420,750 in future damages. The plaintiffs
calculated prejudgment interest on the full award of $445,500 at
an annual interest rate of 15.5% for the 1,680-day period from
the date the complaint was filed until the date of the verdict,
which resulted in a prejudgment interest award of $317,830.68.
The correct calculation, applying prejudgment interest to only
the past damages award, yields $17,657.26 in prejudgment
interest. Thus, the total judgment for Michael should be
$463,157.26, not the $763,330.68 awarded. The prejudgment
interest award to Cynthia is similarly miscalculated.
81 663 P.2d 937, 943 (Alaska 1983). In Brinkerhoff we
stated that [a]lthough problems of apportionment may not always
be present, such difficulties are prevalent enough to warrant a
general exclusion of joint offers from the penal cost provisions
of Rule 68. Id.
82 Former Alaska R. Civ. P. 68(b), which applies to cases
filed before August 7, 1997, provides, in relevant part:
If the judgment finally rendered by the court
is not more favorable to the offeree than the
offer, the prejudgment interest accrued up to
the date of judgment is entered shall be
adjusted as follows:
. . . .
(2) if the offeree is the party
defending against the claim, the interest
rate will be increased by the amount
specified in AS 09.30.065.
83 758 P.2d 99 (Alaska 1988).
84 Id. at 102.
85 This phrase means that [t]he settlement offer clearly
indicated all claims between the parties would be resolved if the
offer were accepted. Id.
86 Id. (internal quotation marks omitted).
87 Id.
88 Jury Instruction 30.
89 Tolan v. ERA Helicopters, Inc., 699 P.2d 1265, 1267
(Alaska 1985).
90 Id.
91 Id. at 1268.
92 See id.
93 See, e.g., McCubbins v. State, Dept of Natural Res.,
Div. of Parks and Recreation, 984 P.2d 501, 506 (Alaska 1999)
([T]he jurys verdict awarding damages for future medical expenses
but not for diminished earning capacity was inconsistent.);
Fancyboy v. Alaska Village Elec. Co-op., Inc., 984 P.2d 1128,
1135 (Alaska 1999) (affirming superior courts refusal to
reinstate as inconsistent a jury verdict which found that the
defendants negligence was the cause of the plaintiffs injuries
but which failed to make any award for medical expenses or
non-economic damages).
94 Nelson v. Progressive Corp., 976 P.2d 859, 863 (Alaska
1999) ([A] litigant waives his right to challenge the consistency
of a jurys verdict if he fails to raise the issue and move for
resubmission prior to the jurys discharge.).
95 Id.
