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Willoya v. State (8/30/2002) sp-5622
Willoya v. State (8/30/2002) sp-5622
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
BRYAN WILLOYA, )
) Supreme Court No. S-10280
Appellant, )
) Superior Court No.
v. ) 3PA-99-754 CI
)
STATE OF ALASKA, through its ) O P I N I O N
DEPARTMENT OF CORRECTIONS, )
DAVID L. POPKEN, MIKE GREEN, ) [No. 5622 - August 30,
2002]
BETSIE ROBSON, BILL PARKER, )
LARRY KINCHLOE, MARGARET )
PUGH and SUPERVISING )
PHYSICIAN, ROBERT S. FOX, )
)
Appellees. )
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Bryan Willoya, pro se, Palmer.
William F. Morse, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee Department of
Corrections, et al. Donna M. Meyers,
Delaney, Wiles, Hayes, Gerety, Ellis & Young,
Inc., Anchorage, for Appellee Robert S. Fox,
M.D. Roger F. Holmes, Biss & Holmes,
Anchorage, for Appellee David L. Popken.
Before: Fabe, Chief Justice, Carpeneti,
Justice, and Mannheimer, Hensley, and Finn,
Justices pro tem.* [Matthews, Eastaugh, and
Bryner, Justices, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Bryan Willoya was incarcerated at Spring Creek
Correctional Center when he was diagnosed with ulcerative colitis
that required surgery. Willoya brought a negligence claim
against the State of Alaska and the personnel that treated him.
After the superior court allowed Willoyas attorney to withdraw,
Willoya filed multiple motions requesting the appointment of
counsel, the appointment of an expert, and the appointment of a
special master, all of which were denied by the superior court.
The superior court then granted the states motion for summary
judgment, which was supplemented with expert affidavits, because
Willoya failed to offer expert testimony that the state was
negligent in its treatment of his condition. Because the
superior court properly dismissed Willoyas claim in the absence
of medical testimony to contradict the states experts and because
Willoya was not entitled to court-appointed counsel, experts, or
a special master, we affirm the rulings of the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
A. Bryan Willoya was an inmate at Spring Creek Correctional
Center (Spring Creek) during the time period that is relevant to
this appeal. During his incarceration, Willoya complained of
various health problems. On November 10, 1997 Willoya complained
of blood in his stools. Willoya was seen by physicians assistant
David L. Popken who diagnosed Willoya with hemorrhoids and
treated him with stool softener and fiber.
Willoya again complained of rectal bleeding on November
16 and was seen by a nurse. The next morning Willoya was seen by
Popken who recommended a barium enema, for diagnostic purposes,
but still diagnosed Willoya with hemorrhoids. Popken also
recommended that Willoya be seen by Dr. Robert S. Fox. Dr. Fox
examined Willoya on November 18 and agreed with Popkens
recommendation for a barium enema. Dr. Fox also found that
Willoyas bowels were inflamed.
On November 24 Willoya was admitted to the prison
infirmary for preparation for the barium enema. Willoya had a
barium enema on November 25 at Providence Seward Hospital. The
results of the barium enema required follow up, but not on an
emergency basis. On December 1, 1997 Popken requested that a
colonoscopy be performed in the next couple of days to rule out
any abnormalities. Popken also decided to keep Willoya at Spring
Creek until closer to the date of the colonoscopy before
transferring him to Anchorage. Popken started Willoya on
antibiotics and anti-inflammatories on December 2.
Willoya was in the prison infirmary from December 1
through December 7 where he was monitored closely. On December 7
Willoyas condition worsened when he started experiencing
significant pain and abdominal cramping and his temperature rose
to 101. Dr. Fox examined Willoya that same day and diagnosed him
with severe refractory colitis, a serious, life-long disease that
causes an inflammation of the intestines. Dr. Fox ordered
Willoya to be transferred to Providence Hospital in Anchorage on
an emergency basis that day to Dr. Steve Kilkenny for a surgical
consult and in-patient treatment. Upon his arrival at
Providence, Willoya was seen by Dr. Richard Buchanan, an internal
medicine specialist. A computer tomography radiographic exam (CT
scan) was performed on Willoya on December 8. Dr. Kilkenny then
ordered surgical intervention because the CT scan showed that
Willoya suffered from severe ulcerative colitis involving his
entire colon and appendix. A total colectomy1 with proctectomy2
and ileostomy3 was performed.
B. Proceedings
On August 12, 1999 Willoya filed a suit in the superior
court against the Department of Corrections, Dr. Fox, and Popken,
among others.4 In his complaint, Willoya made claims of
negligence against the state and its employees and medical
negligence against Dr. Fox, and possibly negligent infliction of
emotional distress against all defendants. The case was assigned
to Superior Court Judge Beverly W. Cutler. At a pre-trial
conference on January 3, 2000, trial was scheduled for August 6,
2001. On the same day, Judge Cutler sent a letter to the parties
asking if it was their intention to waive the appointment of an
expert advisory panel. The parties waived appointment of the
panel.
On August 2, 2000 Willoyas counsel, Ted Stepovich,
moved to withdraw from the case because attorney/client
communication had broken down. Willoya did not consent to the
withdrawal of Stepovich. The superior court scheduled a hearing
on the motion to withdraw on September 15, 2000. On October 6
the superior court granted Stepovichs motion to withdraw. Judge
Cutler ordered Stepovich to send all materials associated with
his case to Willoya within thirty days and recognized Willoya as
a pro se litigant.
On December 27, 2000 all defendants joined in a motion
for summary judgment. The motion was supported by expert
affidavits from a physicians assistant and a board certified
family practitioner stating that Popken and Dr. Fox met the
applicable standard of care. Willoya filed an opposition to the
states motion for summary judgment but failed to include any
affidavits from medical experts.
In January 2001 Willoya filed several motions. He
moved to obtain expert testimony and reports at public expense.
He moved to enforce the superior courts order requiring Stepovich
to send all of the materials relating to his case to him, and he
asked the superior court to hold Stepovich in contempt for his
failure to provide the materials within the time previously
ordered. Willoya moved for the appointment of a special master
and, in the alternative, the appointment of counsel. Finally,
Willoya filed a motion to stay the states motion for summary
judgment and an opposition to the expert reports filed by Popken
based on the experts credentials. Popken moved to strike
Willoyas opposition to the expert reports on February 15.
On April 16 the superior court ruled on all pending
motions. The superior court denied without prejudice Willoyas
motion to enforce the order against Stepovich and hold Stepovich
in contempt. The court struck Willoyas opposition to the expert
reports submitted by Popken and denied Willoyas motion for
dismissal of the states summary judgment for the reasons advanced
in the [states] briefing. It also denied Willoyas motion to
appoint an expert pursuant to Alaska Rule of Evidence 706 because
Willoya made no showing that he was able to pay for his share of
the appointed experts fee. It denied both Willoyas motion to
obtain expert testimony and reports at public expense and his
motion to have a master appointed or, in the alternative, to have
counsel appointed. Willoyas motion for a stay on the states
motion for summary judgment was denied as Willoya had already had
what was effectively an extension of over two months to respond.
Finally, the superior court granted the states motion for summary
judgment. Final judgment of dismissal with prejudice was entered
on June 7.
Willoya appeals.
III. STANDARD OF REVIEW
We review an appeal from summary judgment de novo.5 We
affirm [a] superior courts grant of summary judgment . . . if the
evidence in the record fails to disclose a genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law.6 All reasonable factual inferences must be drawn
in favor of the party opposing summary judgment.7
We review procedural decisions of the superior court
for an abuse of discretion.8 We will reverse a ruling for abuse
of discretion only when we are left with a definite and firm
conviction, after reviewing the entire record, that the trial
court erred.9 We review a ruling by the superior court allowing
an attorney to withdraw under the abuse of discretion standard.10
Discovery rulings are also reviewed for abuse of discretion.11
The same standard is used to review the superior courts decision
concerning appointment of a special master.12
We review the superior courts factual findings on the
issue of contempt for clear error.13 A finding of fact is
clearly erroneous when we are left with a definite and firm
conviction based on the totallity of the record before us that
the trial court has made a mistake.14
Constitutional questions are questions of law to which
we apply our independent judgment.15
We apply our independent judgment to questions of
statutory interpretation, such as whether the trial court
properly construed and fulfilled its statutory duty to appoint an
expert advisory panel.16 We will adopt the rule of law that is
most persuasive in light of precedent, reason, and policy.17
IV. DISCUSSION
I. A. The Superior Court Did Not Err in Allowing Stepovich To
Withdraw and in Refusing To Sanction Stepovich for Failing To
Provide the Case Materials.
1. The superior court did not err in allowing Stepovich to
withdraw.
Willoya argues that the superior court erred in
allowing Stepovich to withdraw from the case. Willoya offers no
factual or legal support for his argument that the superior court
abused its discretion in letting Stepovich withdraw. The court
allowed Stepovich to withdraw only after holding a hearing on his
motion to withdraw, in which Willoya participated, and the
withdrawal took place on October 10, 2000, ten months prior to
the scheduled date for trial. We therefore hold that the
superior court did not abuse its discretion in allowing Stepovich
to withdraw.
2. The superior court did not err in refusing to sanction
Stepovich.
Willoya argues that Stepovich made unauthorized
disclosures of information concerning the settlement of Willoyas
claims. Willoya offers no proof of this allegation other than
his own assertion and he gives no specific information as to when
this conversation took place or what the particulars of the
conversation were. There is no evidence that Willoya raised this
issue below. Accordingly, Willoya has waived this claim.18
Willoya also argues that the superior court erred in
denying his motion for enforcement of the order requiring
Stepovich to send Willoya all materials associated with Willoyas
case within thirty days. The superior courts decision denying
Willoyas motion to hold Stepovich in contempt was not clearly
erroneous. Stepovich filed a notice of compliance with the
superior court on February 15, stating that he had sent the file
to Willoya before Willoya even filed his motion for enforcement.
Willoya did not refute that statement. Moreover, Willoya has
alleged no harm as a result of not receiving the materials from
Stepovich within the thirty days provided by the order. We will
not disturb a judicial determination without evidence of both
error and prejudice.19 The superior court did not err in denying
Willoyas motion.
B. The Superior Court Did Not Err in Denying Willoyas
Requests for Appointment of a Discovery Master, Counsel, a
Medical Expert, and an Expert Advisory Panel.
1. The superior court did not err in denying the appointment of
a master.
1. Willoya contends that the superior court erred when it
denied his motion to appoint a master under Alaska Civil Rule
53(a).20 The state interprets Willoyas argument as asking for
the appointment of a discovery master. Willoyas motion to the
superior court indicates that Willoya intended that the master
would help him deal with discovery requests and organize material
that he received from the other side.21
In Peter v. Progressive Corp.,22 we stated:
appointment of a discovery master should
generally be reserved for cases (1) where the
issues are unusually complex or specialized;
(2) where discovery is particularly document
intensive; (3) where resolving discovery
disputes will be especially time consuming;
(4) where the parties are particularly
contentious or obstructionist; or (5) where a
master will facilitate a more speedy and
economical determination of the case.[23]
Willoya fails to assert that any of the five factors
mentioned above are present in this case. While the case does
involve claims of medical negligence, which is a specialized
area, there is no indication that the trial court was unduly
burdened by these specialized issues. There is also no
indication that any of the other factors apply to this case.
Therefore, we uphold the superior courts denial of Willoyas
request to appoint a master.
2. The superior court did not err in denying the
appointment of counsel.
Willoya argues that the superior court erred when it
denied his request to appoint counsel. The state responds that
Willoya had no right to court-appointed counsel. The state
contends that the mere fact that Willoya is indigent does not
implicate the same right to counsel in a tort/personal injury
case as it does in a criminal case. In fact, in his original
motion, Willoya admits that he is aware that he has no real right
for the appointment of bonafide counsel by the court. We have
recently reiterated that there is no right to appointed counsel
in tort cases.24 The superior court did not err in denying
Willoyas request to have counsel appointed for him.
3. The superior court did not err in denying the
appointment of an expert under Evidence Rule 706.
Willoya contends that the superior court erred when it
denied his motion to have an expert appointed pursuant to Alaska
Evidence Rule 706(a).25 The state responds that the rule does
not warrant the appointment of an expert because this case is not
complex. The state also points to Willoyas argument in his
original motion that an expert is needed in order to coherently
present the plaintiffs claims and any rebuttal testimonies of
defendant[s] proposed experts. The state argues that this is an
inappropriate reason for the superior court to appoint an expert.
The language of Rule 706 supports the conclusion that
the rule was meant as a discretionary, procedural option for a
judge when the issues involved in a case are unusually complex.
The language of the rule [t]he court may appoint expert
witnesses makes clear that appointment by the court is
discretionary.
Rule 706 was not intended as a means for an indigent
party to obtain expert testimony at public expense. The superior
court correctly observed that the court has no funds with which
to support private litigation such as this litigation.26
4. The superior court did not err in denying the appointment of
a medical expert advisory panel.
1. Willoya contends that the superior court erred in failing to
appoint a medical expert advisory panel. Willoya states that he
needed the panel in order to present his case as required by AS
09.55.536(a).27
Alaska Statute 09.55.536 provides for a pretrial review
of medical malpractice claims by an expert advisory panel and
allows for the admission into evidence of the panels report at
trial.28 Here, the superior court wrote to both parties asking
if the parties wanted an expert advisory panel appointed. There
is no evidence in the record that Willoya requested an expert
advisory panel after receiving this letter. In the order
granting summary judgment to the state the superior court noted
that Willoya through his counsel rejected the courts offer to
appoint an expert advisory panel. Because the parties waived
their right to an expert advisory panel, we hold that the
superior court did not err in failing to appoint one.
C. The Superior Court Did Not Err in Granting Summary
Judgment.
1. Willoya received proper notice of the requirements of
submitting affidavits with his opposition to the states motion
for summary judgment.
Willoya states that he did not receive understandable
notice of the requirements of the summary judgment rules.
Willoya argues that he did not receive notice of the necessity of
submitting affidavits if the facts were in dispute. In Breck v.
Ulmer,29 we required trial judges to inform a pro se litigant of
the proper procedure for the action he or she is obviously
attempting to accomplish.30 Specifically, the pro se litigant
should [be] advised of the necessity of submitting affidavits to
preclude summary judgment, and of the possibility of amending her
complaint.31
Here, we can find no indication that the superior
court formally informed Willoya of the necessity of submitting
expert affidavits to avoid the grant of summary judgment in favor
of the state. However, there is evidence that Willoya knew or
became aware of this requirement while there was still time to
submit affidavits.
First, in its motion for summary judgment, the state
noted that Willoya must present expert testimony in order to
support his claims for medical negligence. Second, Willoya
acknowledged the need for medical testimony in his own filings.
Although these acknowledgments were made after he submitted his
motion for dismissal of the states motion for summary judgment,
the acknowledgments were made well before the superior court
ruled on the states motion for summary judgment. Also, the
superior court noted in its denial of Willoyas January 29 motion
for a stay on the states motion for summary judgment that todays
date is 4-16-01 and plaintiff effectively has had a stay or
extension of far more than 20 days to accomplish the goal sought.
During this period of approximately two and one-half months from
the first indication that Willoya understood the requirements for
summary judgment until the states motion was granted, Willoya
never sought leave to amend his opposition or in any way comply
with the requirements. Therefore, we find that there was no need
for the superior court to give Willoya formal notice of the
requirements of opposing a motion for summary judgment because
there is clear evidence in the record that he knew the
requirements.
2. The state did not violate Evidence Rule 702(b) by submitting
more than three experts.
Willoya asserts that the superior court violated Alaska
Rule of Evidence 702(b) by allowing the state to submit more than
three experts names on its witness list.32 Willoya misreads the
rule. It prohibits the testimony of more than three experts as
to the same issue. He makes no showing that the state submitted
more than three experts as to any issue. Moreover, because this
case never went to trial, the experts listed never actually
testified. There was no error with regard to Evidence Rule
702(b).33
3. The superior court did not err in finding that Willoya did
not establish a triable case of medical negligence to preclude
summary judgment.
Willoya argues that he raised genuine issues of
material fact and that the superior court erred in granting the
states motion for summary judgment. With its motion for summary
judgment, the state submitted the affidavits of two experts.
First, the opinion of physicians assistant Edward Hall, a
physicians assistant licensed in Alaska with approximately nine
years of experience, was submitted. Hall stated that physicians
assistant Popken met the applicable standard of care with regards
to the treatment of Willoyas ulcerative colitis. Second, the
state submitted the affidavit of Dr. David A. Driggers, a board-
certified family-practitioner licensed in four states, including
Alaska. Dr. Driggers stated that both Popken and Dr. Fox treated
Willoya in a manner appropriate to the complaints made by
Willoya. Also, Dr. Driggers stated that the care given by both
Popken and Dr. Fox met the applicable standards of care. Willoya
failed to offer expert testimony to support his medical
negligence claim against the state.
We have held that when a partys motion was sufficient
to establish the absence of a genuine issue as to negligence and
the other party presented no expert affidavits and did not show,
based on the evidence that was presented, that a reasonably
arguable case of medical negligence existed it is appropriate for
a trial court to grant a motion for summary judgment.34 Here,
the state submitted expert affidavits that showed that the state
took proper care of Willoya. Once the state met this burden, the
burden shifted to Willoya to demonstrate how he would prove
medical negligence. Since Willoya offered no expert opinion
contrary to the expert opinions offered by the state, there was
no arguable issue of medical negligence.35 The superior court
did not err in granting summary judgment in favor of the state.
4. Willoya does not have a claim of informed consent.
Willoya claims that he did not give informed consent
when he received a barium enema because he was not notified of
the material risks of the procedure. This claim was never raised
below. Willoyas complaint only alleged three causes of action:
the state was negligent, Dr. Fox and Popken gave negligent
medical care, and possibly a negligent infliction of emotional
distress claim. There is no indication that the issue of
informed consent was raised below or that the superior court made
any findings on the issue. Willoya has waived this claim.36
D. The State Did Not Violate Willoyas Constitutional
Rights.
1. The state did not violate Willoyas due process rights by
releasing his medical records.
1. 1. Willoya claims that he was denied his right to due
process in violation of both the state and federal constitutions
when his medical records were released without a hearing.37 As
the state points out, once Willoya filed a civil suit putting his
medical condition at issue, he waived any privilege or privacy
interest he had in his medical records.38 Willoya makes no
arguments that the records he is referring to are not the same
records that are implicated by this case. Therefore, because
Willoya has put his medical condition at issue, he has waived any
claim that his rights were violated with the release of these
records.39
2. Willoya waived his Eighth Amendment claim by failing to
raise it in the superior court.
1. Willoya claims that he was denied pain medication when he
requested it and that this amounted to cruel and unusual
punishment in violation of the Eighth Amendment.40 Specifically,
Willoya claims that he was denied pain medication on two
occasions: December 5 and 7, 1997. There is no indication that
Willoya ever raised this claim before the superior court and,
therefore, no findings of fact were ever made regarding these two
incidents.41 Because this argument was not raised below, it is
waived.42
3. Willoya does not have a claim against the state for
violation of its own policies and procedures.
Willoya argues that the state violated the Department
of Corrections policies and procedures by not informing his
family that he had become seriously ill and was hospitalized.
Willoya also claims that this violated his due process rights.
Willoya failed to raise these claims below and, therefore, he has
waived them.43
E. Claims Raised by Willoya in His Reply Brief but Not in
His Opening Brief Have Been Waived.
Willoya raises several claims in his reply brief that
he neither raised below nor raised in his opening brief. These
claims include an alleged sexually improper remark by Popken, the
states failure to provide certain materials through discovery,
Willoyas right to know about Popkens consultations with other
medical professionals, Popkens alleged breach of his confidential
relationship with Willoya, violation of Willoyas right to know of
unfavorable test results, and the states interference with
Willoyas confidential communications to his doctor.
On December 31, 2001 the state filed a motion with this
court to strike the affidavits submitted with Willoyas reply
brief and to disregard the arguments that Willoya did not raise
in his opening brief. We struck the affidavits submitted with
the reply brief and stated that we would not consider new points
raised for the first time in the reply brief, but reserved our
consideration of whether the challenged arguments were raised for
the first time in the reply brief until our consideration of the
merits of this appeal. We have now fully reviewed all of the
briefing. Because these arguments were not raised in the opening
brief, we now hold these arguments are waived.44
V. CONCLUSION
We reject Willoyas various challenges and AFFIRM the
superior courts grant of summary judgment to the state.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 A colectomy is the [e]xcision of a segment or all of
the colon. Stedmans Medical Dictionary 325 (25th ed. 1990).
2 A proctectomy is the surgical resection of the rectum.
Id. at 1263.
3 An ileostomy is the establishment of a fistula (an
abnormal passage from an abscess, cavity, or hollow organ to the
skin) through which the third portion of the small intestine
discharges directly to the outside of the body. Id. at 763.
4 All the appellees will be collectively referred to as
the state.
5 Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017
(Alaska 1998).
6 Johnson v. Olympic Liquidating Trust, 953 P.2d 494,
496 (Alaska 1998).
7 Id.
8 Dougan v. Aurora Elec., Inc., ___ P.3d ___, Op. No.
5591 at 6 (Alaska, June 28, 2002) (citing Morgan v. State, Dept
of Revenue, 813 P.2d 295, 297 n.4 (Alaska 1991)).
9 Id.
10 Devincenzi v. Wright, 882 P.2d 1263, 1265 (Alaska
1994).
11 Christensen v. NHC Corp., 956 P.2d 468, 473 (Alaska
1998).
12 Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska
1999).
13 Matanuska Elec. Assn, Inc. v. Rewire the Bd., 36 P.3d
685, 690 (Alaska 2001).
14 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
15 Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).
16 Taylor v. Johnston, 985 P.2d 460, 463 (Alaska 1999)
(citations omitted).
17 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
18 Brandon v. Corr. Corp. of America, 28 P.3d 269, 280
(Alaska 2001) (holding argument waived when not raised in court
below or given cursory treatment in partys brief).
19 Hayes v. Bering Sea Reindeer Products, 983 P.2d 1280,
1283 (Alaska 1999).
20 Alaska R. Civ. P. 53(a) states:
The presiding judge of the superior court for
each judicial district with the approval of
the chief justice of the Supreme Court may
appoint one or more standing masters for such
district, and the court in which any action
is pending may appoint a special master
therein. As used in these rules the word
master includes a referee, an auditor and an
examiner, and a magistrate or a deputy
magistrate. The compensation, if any, to be
allowed to a master shall be fixed by the
court, and shall be charged upon such of the
parties or paid out of any fund or subject
matter of the action which is in the custody
and control of the court, as the court may
direct. The master shall not retain the
masters report as security for compensation;
but when the party ordered to pay the
compensation allowed by the court does not
pay it after notice and within the time
prescribed by the court, the master is
entitled to a writ of execution against the
delinquent party.
21 While we analyze this request under standards relevant
to the appointment of masters under Civil Rule 53, we note that
Willoyas announced purposes for seeking appointment of a master
show that Willoya in effect sought the appointment of a legal
assistant to him.
22 986 P.2d 865 (Alaska 1999).
23 Id. at 870.
24 Midgett v. Cook Inlet Pretrial Facility, ___ P.3d ___,
Op. No. 5620 (Alaska, August 30, 2002).
25 Alaska R. Evid. 706(a) states:
The court may on its own motion or on the
motion of any party enter an order to show
cause why expert witnesses should not be
appointed, and may request the parties to
submit nominations. The court may appoint
expert witnesses. An expert witness shall not
be appointed by the court unless the witness
consents to act. A witness so appointed shall
be informed of the witness duties by the
court in writing, a copy of which shall be
filed with the clerk, or at a conference in
which the parties shall have opportunity to
participate. A witness so appointed shall
advise the parties of the witness findings,
if any; the witness deposition may be taken
by any party; and the witness may be called
to testify by the court or any party. If the
court determines that the interests of
justice so require, the party calling an
expert appointed under this rule may
cross-examine the witness.
26 We note that, by ruling on Willoyas motion for the
appointment of an expert at public expense, his motion for a stay
upon the states motion for summary judgment, and the states
motion for summary judgment all on the same day, the superior
court may not have fully considered Willoyas disadvantage as a
pro se litigant. We think the better practice, as exemplified by
the trial courts procedure in Kaiser v. Sakata, 40 P.3d 800
(Alaska 2002), is to grant a pro se medical malpractice litigant
an extension of time to respond to a summary judgment motion, to
explain to the litigant what he needs to oppose the motion, and
to make clear that the litigant could not rely on his own
testimony in opposing summary judgment before ruling on the
motion. Id. at 802-03. We find that the courts deciding of all
of the pending motions on the same day in this case, however, was
not prejudicial to Willoya because Willoya had made it clear to
the court that he was unable to provide anything further by way
of opposition to the motion for summary judgment.
27 AS 09.55.536(a) provides:
In an action for damages due to personal
injury or death based upon the provision of
professional services by a health care
provider, including a person providing
services on behalf of a governmental entity,
when the parties have not agreed to
arbitration of the claim under AS 09.55.535,
the court shall appoint within 20 days after
filing of answer to a summons and complaint a
three-person expert advisory panel unless the
court decides that an expert advisory opinion
is not necessary for a decision in the case.
When the action is filed, the court shall, by
order, determine the professions or
specialties to be represented on the expert
advisory panel, giving the parties the
opportunity to object or make suggestions.
28 Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 345
(Alaska 1988).
29 745 P.2d 66 (Alaska 1987).
30 Id. at 75.
31 Id.
32 Alaska R. Evid. 702(b) states:
No more than three independent expert
witnesses may testify for each side as to the
same issue in any given case. For purposes of
this rule, an independent expert is a witness
who is retained or specially employed to
provide expert testimony in the case or whose
duties as an employee of the party regularly
involve giving expert testimony. The court,
upon the showing of good cause, may increase
or decrease the number of independent experts
to be called.
33 Willoya did not claim that the states action in naming
more than three expert witnesses resulted in an undue burden or
expense under Alaska Rule of Civil Procedure 26(c). Accordingly,
we do not address the interplay between that rule and Evidence
Rule 702(b).
34 Kendall v. State, Div. of Corr., 692 P.2d 953, 955
(Alaska 1984).
35 Willoya complains that his own lay opinion evidence was
admissible under Alaska Rule of Evidence 701, and faults the
superior court for excluding it. Regardless whether, had the
case gone to trial, Willoya may have been able to provide his own
opinion testimony under Rule 701, it was insufficient to oppose
expert testimony on a medical malpractice claim for summary
judgment purposes. Id.
36 Brandon v. Corr. Corp. of America, 28 P.3d 269, 280
(Alaska 2001) (stating that [a] party may not raise an issue for
the first time on appeal.) (citing Preblich v. Zorea, 996 P.2d
730, 736 n.17 (Alaska 2000)).
37 U.S. Const. amend. XIV, 1 (Willoya mistakenly cites to
Art. 5); Alaska Const. art. I, 7.
38 Langdon v. Champion, 745 P.2d 1371, 1373 (Alaska 1987);
see also Trans-World Investments v. Drobny, 554 P.2d 1148, 1151
(Alaska 1976) (stating we hold that the filing of a personal
injury action waives the physician-patient privilege as to all
information concerning the health and medical history relevant to
the matters which the plaintiff has put in issue.). Alaska R.
Evid. 504 states in relevant part:
(b) General Rule of Privilege. A patient has
a privilege to refuse to disclose and to
prevent any other person from disclosing
confidential communications made for the
purpose of diagnosis or treatment of the
patients physical, mental or emotional
conditions, including alcohol or drug
addiction, between or among the patient, the
patients physician or psychotherapist, or
persons who are participating in the
diagnosis or treatment under the direction of
the physician or psychotherapist, including
members of the patients family.
. . . .
(d) Exceptions. There is no privilege under
this rule:
(1) Condition on Element of Claim or
Defense. As to communications relevant to the
physical, mental or emotional condition of
the patient in any proceeding in which the
condition of the patient is an element of the
claim or defense of the patient, of any party
claiming through or under the patient, of any
person raising the patients condition as an
element of his own case, or of any person
claiming as a beneficiary of the patient
through a contract to which the patient is or
was a party; or after the patients death, in
any proceeding in which any party puts the
condition in issue.
39 Willoya also claims that the release of his medical
records violated his right to privacy, his right to a fair trial,
and his right to be free from illegal searches and seizures.
Since Willoya had no privacy interest in the release of his
medical records, as discussed above, there could be no violation
of his right to privacy. Willoyas right to be free from illegal
search and seizure is not implicated in this case as it is a
civil case and not a criminal case. See D.R.C. v. State, 646
P.2d 252, 260 (Alaska App. 1982) (stating that the fourth
amendment, properly viewed in its historical context, applies to
two kinds of situations: first, investigations of those suspected
of crime by those performing the function of police officers; and
second, area-wide exploratory investigations, with or without a
suspect, carried out by specialized law enforcement officers in
order to prevent crime (including violation of health and safety
regulations).). It is unclear how the right to a fair trial
relates to Willoyas claim since no specific examples are given;
thus it is impossible to evaluate this claim.
40 Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted. U.S.
Const. amend. VIII.
41 Native Alaskan Reclamation & Pest Control, Inc. v.
United Bank Alaska, 685 P.2d 1211, 1215 (Alaska 1984) (stating
that [i]t is the job of the trial court, not the appellate court,
to judge the credibility of the witnesses and to weigh
conflicting evidence.).
42 Brandon v. Corr. Corp. of America, 28 P.3d 269, 280
(Alaska 2001) (stating that [a] party may not raise an issue for
the first time on appeal.) (citing Preblich v. Zorea, 996 P.2d
730, 736 n.17 (Alaska 2000)).
43 Id.
44 Alaska R. App. P. 212(c)(3) (stating that the reply
brief may raise no contentions not previously raised in either
the appellants or appellees briefs.); see also Conam Alaska v.
Bell Lavalin, Inc., 842 P.2d 148, 158 (Alaska 1992) (stating this
court need not consider a theory raised for the first time in a
reply brief).
