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Gilbert v. Sperbeck (12/09/2005) sp-5964
Gilbert v. Sperbeck (12/09/2005) sp-5964
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| LOIS GILBERT,
| ) |
|
| ) Supreme Court No. S-
10842 |
|
Appellant, | ) |
|
| ) Superior Court No.
3AN-01-07077 CI |
|
v. | ) |
|
| ) O P I N I O
N |
|
DAVID SPERBECK, Ph.D, | ) |
|
| ) [No. 5964 - December
9, 2005] |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Lois Gilbert, pro se,
Anchorage. Brian M. Doherty, Gilmore &
Doherty, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
After Lois Gilbert arbitrated a dispute with her
insurer, State Farm Insurance Company, she sued the psychologist,
Dr. David Sperbeck, who examined her for State Farm and testified
as its expert witness in the arbitration. We hold that witness
immunity bars Gilberts fraud and misrepresentation claims against
Dr. Sperbeck and that the Americans with Disabilities Act1 (ADA)
does not provide for the relief she seeks. We therefore affirm
the summary judgment entered against her in the superior court.
II. FACTS AND PROCEEDINGS
Lois Gilberts automobile was rear-ended in an
unwitnessed hit-and-run vehicular accident in 1994. She was
diagnosed with whiplash on the basis of her representations and
filed an uninsured motorist claim with her motor vehicle insurer,
State Farm Insurance Company. Her claim was submitted to
arbitration per the insurance contract. State Farm retained Dr.
David Sperbeck, a clinical psychologist, to perform an
independent psychological examination (IPE) of Gilbert and to
serve as an expert witness in the arbitration.
Dr. Sperbeck administered several computerized
psychological tests to Gilbert and conducted a psychological
interview. The tests and interview were administered over two
days. During the first day of testing, Gilbert complained that
the chair provided by Dr. Sperbeck was insufficiently supportive
and caused pain to her back. Gilbert rescheduled the second day
of testing due to this back pain.
In his deposition in the arbitration proceeding, Dr.
Sperbeck testified that he believed that Gilbert experienced
actual pain relating to the 1994 accident, but that a personality
disorder complicated the pain and caused Gilbert to over-report
symptoms. He concluded that while Gilbert did not have a major
psychiatric disorder, she did have a histrionic personality
disorder with narcissistic features that causes her to exaggerate
and magnify the degree . . . of pain that shes in and to magnify
the degree of disability that she has.
The arbitrator found that no trauma resulting in injury
had occurred in the 1994 accident. He noted in his decision that
there was no independent and objective evidence linking any of
Gilberts physical problems to the 1994 accident. He also stated
that issues of credibility were central to the dispute, and that
he felt compelled to resolve them against Gilbert, who was the
only live witness.
Gilbert then filed this lawsuit against Dr. Sperbeck,
alleging that he mis-characterized her to the arbitrator and
conducted a fraudulent IPE. Gilbert also claimed that Dr.
Sperbeck violated the ADA and analogous state and local laws by
failing to provide her with an appropriate chair during the
evaluation. Her complaint sought an award of damages. The
superior court granted Dr. Sperbecks motion for summary judgment
on all counts. Gilbert appeals.
III. DISCUSSION
A. Standard of Review
We review grants of summary judgment de novo.2 Summary
judgment is appropriate where there is no genuine issue as to any
material fact and . . . any party is entitled to judgment as a
matter of law. 3 We draw all factual inferences in favor of, and
view the facts in the light most favorable to, the non-prevailing
party (generally the non-movant).4 We review questions of law de
novo and adopt the rule of law that is most persuasive in light
of precedent, policy, and reason.5
B. Gilberts Claims of Fraud and Misrepresentation Are
Barred by Witness Immunity.
Gilbert alleges that Dr. Sperbeck conducted a
fraudulent examination and that he minimized her injuries and
mischaracterized her mental state in his deposition. She alleges
that the arbitrator relied on Dr. Sperbecks deposition in
resolving issues of credibility and in ultimately deciding for
State Farm, and that this decision deprived her of the insurance
coverage to which she was entitled.
In Lythgoe v. Guinn we held that quasi-judicial
immunity barred a lawsuit against a court-appointed expert
witness.6 Dr. Guinn, a psychologist, was appointed in that case
to act as an independent custody investigator and to make a
custody recommendation to the court.7 Dr. Guinn served as an arm
of the court and performed a function integral to the judicial
process. 8 The mother, a party to the underlying custody
dispute, sued Dr. Guinn, alleging negligent and intentional torts
during her investigation and in preparing her report.9 We
concluded that [c]aselaw and policy considerations clearly
support the granting of absolute quasi-judicial immunity to Dr.
Guinn as a court-appointed psychologist.10
Dr. Sperbeck was hired by a party to the private
arbitration and did not serve in a role analogous to an arm of
the court.11 We therefore look to the principles of witness
immunity, rather than quasi-judicial immunity, to determine
whether Dr. Sperbeck is immune from liability for his testimony
in the arbitration.
Testimony in a judicial proceeding, if pertinent to the
matter under inquiry, is absolutely privileged, even if given
maliciously or with knowledge of its falsity.12 Even defamatory
testimony is privileged, and the witness granted immunity,
because of the public policy rationale that the privilege leads
to more just trials by (1) encouraging more witnesses to come
forward and (2) ensuring that witnesses will be more open and
honest in testifying.13
Gilbert argues that witness immunity applies only to
factual, not expert, witnesses. But expert testimony often
provides essential help to the finder of fact.14 In holding that
witness immunity barred fraudulent misrepresentation and
defamation claims against an opposing expert witness, a federal
district court stated that [t]he overriding concern for
disclosure of pertinent and instructive expert opinions before
and during medical malpractice actions is no less significant
than the clearly-recognized need for all relevant factual
evidence during the course of litigation.15
Gilbert argues that the truth-encouraging purposes of
witness immunity are not furthered by granting immunity to expert
witnesses and suggests that additional deterrents from false
testimony are necessary because expert witnesses are paid. But
we regard the traditional safeguards against untruthful
testimony, including the oath or affirmation, the perils of cross-
examination, and the threat of perjury prosecution or other
sanctions, as sufficient deterrents.16
The same considerations that underlie the application
of witness immunity in court proceedings also justify applying
the doctrine of witness immunity to the expert testimony given by
Dr. Sperbeck in the arbitration matter. As with judicial
proceedings, fair and just arbitrations depend on the willingness
of witnesses to present relevant evidence in a candid manner.
Furthermore, Alaska favors arbitration;17 this policy would be
hampered if arbitration witnesses were not immune from suit to
the same extent as litigation witnesses.18 We assume without
deciding here that Dr. Sperbeck was potentially subject to
prosecution had he perjured himself during his arbitration
deposition;19 he swore an oath and was subject to cross-
examination. And as a licensed psychologist, he was subject to
professional discipline.20 In the context of the adversarial
arbitration setting, we regard these deterrents against
untruthful testimony by an expert witness as sufficient. We
therefore hold that witness immunity bars Gilberts claims of
fraud and misrepresentation against Dr. Sperbeck.21
C. Gilbert May Not Receive Damages Under the ADA.
Gilbert argues that the Americans With Disabilities Act
required Dr. Sperbeck to make a reasonable accommodation for her
disability.22 Gilbert argues that Dr. Sperbeck violated the ADA
by failing to provide her with a suitably supportive chair during
the psychological examination and interview. She claims that Dr.
Sperbecks alleged violation entitles her to damages.
Normally one of the first steps in considering an ADA
claim is determining whether the ADA applies to the defendant.23
But there is no reason in this case to consider whether Dr.
Sperbecks office is a place of public accommodation to which
Title III of the ADA applies,24 because the only relief Gilbert
seeks, damages, is not available to her in this case under the
ADA. Title III adopts the remedial scheme set out in the Civil
Rights Act of 1964 at 42 U.S.C. 2000a-3.25 That subsection
provides for injunctive relief, but not monetary damages.26 Title
III of the ADA provides for monetary damages only when the United
States Attorney General requests them.27 Because the United
States Attorney General has not requested monetary damages here,
Gilbert cannot recover monetary damages from Dr. Sperbeck under
the ADA.28 Gilbert has not asked for injunctive relief. The
superior court therefore did not err in granting summary judgment
on Gilberts ADA claim.
D. Gilbert Has Waived Her Claim for Damages Under AS
18.80.230.
Gilberts complaint also alleged that Dr. Sperbeck
violated Alaska law prohibiting discrimination on the basis of
disability. Alaska Statute 18.80.230(a) makes it unlawful for
the owner, lessee, manager, agent, or employee of a public
accommodation (1) to refuse, withhold from, or deny to a person
any of its services, goods, facilities, advantages, or privileges
because of . . . physical or mental disability.
Unlike the remedial scheme of Title III of the ADA, AS
22.10.020(i) permits recovery of monetary damages for violations
of AS 18.80.230. Although we have held that AS 18.80.220
imposes a duty on employers to make reasonable accommodations for
disabled employees,29 we have not had occasion to decide the
question whether AS 18.80.230(a) imposes an analogous duty on
public accommodation or whether an office such as Dr. Sperbecks
is a public accommodation as that term is defined in AS
18.80.300(14).30
It is unnecessary for us to consider these issues here
because Gilbert has waived any possible claim she had under AS
18.80.230(a). When considering whether a claim has been waived,
[w]e judge a pro se litigants performance by a less demanding
standard than we use when evaluating an attorneys performance.31
Nonetheless, even when a pro se litigant is involved, an argument
is considered waived when the party cites no authority and fails
to provide a legal theory for his or her argument.32
In Peterson v. Ek we held that a pro se litigants
briefing was adequate to avoid waiver of his claims on appeal
because, [a]lthough [the appellant] often failed to cite legal
authority to support his arguments, his briefing was such that we
could discern his legal arguments and [the appellee] could reply
to them.33 Gilberts initial briefing to this court quoted AS
18.80.200, which contains the statement of purpose of the Alaska
Human Rights Act (AHRA). But Gilbert has advanced no argument
that AS 18.80.230(a) applies to Dr. Sperbeck on a theory that his
office is a public accommodation or that subsection .230(a)
imposed a duty of reasonable accommodation on him.
Furthermore, in her initial briefing Gilberts
discussion of Dr. Sperbecks alleged failure to provide a suitable
chair referred solely to the ADA. Her initial brief in referring
to AS 18.80.200 advanced a theory of liability unrelated to Dr.
Sperbecks alleged failure to provide a suitable chair in which to
take the examination.34
After hearing oral argument, we invited the parties to
submit supplemental briefs. Although Gilberts supplemental
brief, filed after Dr. Sperbecks supplemental brief per our
briefing order, seems to suggest that the alleged failure to
provide an adequate chair violated AS 18.80.230(a), her initial
brief said nothing about such a theory. Gilberts failure to
raise this theory in her initial brief gave Dr. Sperbeck no
notice that his original or supplemental briefs should address
the topic. Dr. Sperbeck had no opportunity to respond to this
argument.35 Moreover, Gilberts discussion of the AHRA is so terse
and superficial that, even under the lenient standards for pro se
litigants, it fails to preserve her AS 18.80.230(a) claim on
appeal. We therefore hold that Gilbert has waived her AS
18.80.230(a) claim.
Gilbert also alleged in her complaint that Dr. Sperbeck
violated municipal . . . law by failing to provide reasonable
accommodation for her disability. She does not contend on appeal
that Dr. Sperbeck violated municipal law or that municipal law
precluded entry of summary judgment for Dr. Sperbeck. We
therefore hold that Gilbert has waived this claim as well.
IV. CONCLUSION
For the foregoing reasons, the judgment of the superior
court is AFFIRMED.
_______________________________
1 42 U.S.C. 12101 et seq. (1990).
2 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
3 West v. Umialik Ins. Co., 8 P.3d 1135, 1137 (Alaska
2000) (citing Alaska R. Civ. P. 56(c)).
4 Rockstad, 113 P.3d at 1219.
5 Anderson v. State, 78 P.3d 710, 713 (Alaska 2003).
6 Lythgoe v. Guinn, 884 P.2d 1085, 1088-89 (Alaska 1994).
7 Id. at 1086.
8 Id. at 1088 (quoting Seibel v. Kemble, 631 P.2d 173,
179 (Haw. 1981)).
9 Id. at 1086.
10 Id. at 1093.
11 Cf. Karen L. v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., 953 P.2d 871, 878-79 (Alaska 1998)
(extending absolute quasi-judicial immunity to doctors initially
selected by DFYS and subsequently approved by the court when
doctors were integral part of the judicial process and observing
that to deny immunity would disserve the broader public interest
that non-judicial officers act without fear of liability)
(quoting in part Lythgoe, 884 P.2d at 1088).
12 Cf. Nizinski v. Currington, 517 P.2d 754, 756 (Alaska
1974) (applying witness immunity to arbitrator sued for alleged
libelous statements in affidavit detailing reasons for his
decision in underlying case).
13 Lawson v. Helmer, 77 P.3d 724, 727 (Alaska 2003)
(applying witness immunity to testimony given by lay witnesses
sued for alleged defamation in child custody and protective order
proceedings).
14 See Alaska R. Evid. 702(a).
15 Kahn v. Burman, 673 F. Supp. 210, 213 (E.D. Mich.
1987).
16 See Alaska R. Evid. 603; Lawson, 77 P.3d at 727 (noting
threat of other sanctions); see also Bruce v. Byrne-Stevens &
Assocs. Engrs, Inc., 776 P.2d 666, 667 (Wash. 1989) (applying
witness immunity to expert engineer sued by party who retained
him).
17 AS 09.43.010(a) provides that [a] written agreement to
submit an existing controversy to arbitration or a provision in a
written contract to submit to arbitration a subsequent
controversy between the parties is valid, enforceable, and
irrevocable, except upon grounds that exist at law or in equity
for the revocation of a contract.
Alaska initially adopted the Uniform Arbitration Act in
1968. See ch. 232, 1, SLA 1968. Alaska adopted the Revised
Uniform Arbitration Act in 2004. See ch. 170, SLA 2004.
Arbitration awards are subject to only limited review by courts
in Alaska. See AS 09.43.500(a) (2004). [A]rbitration and award
is an affirmative defense to a civil lawsuit. Alaska R. Civ. P.
8(c). We have previously held that we prefer to encourage
arbitration as a rapid and inexpensive means of resolving
disputes. Bd. of Ed., Fairbanks N. Star Borough Sch. Dist. v.
Ewig, 609 P.2d 10, 13 (Alaska 1980).
18 Cf. AS 09.43.410 (providing that arbitrators are immune
from civil liability to the same extent as a judge of a court of
this state acting in a judicial capacity). AS 09.43.410 became
effective January 1, 2005. Ch. 170, 12, SLA 2004.
19 Cf. AS 11.56.200(a) (A person commits the crime of
perjury if the person makes a false sworn statement which the
person does not believe to be true.).
20 See AS 08.86.130(a) (listing requirements for licensing
of psychologists); AS 08.86.204(a)(5) (providing that state
licensing board may impose a disciplinary sanction if it finds
that the licensee . . . (2) engaged in deceit, fraud, or
intentional misrepresentation in the course of providing
professional services or engaging in professional activities).
21 Our holding makes it unnecessary to consider Gilberts
claims that the superior court erred by (1) declining to require
that Dr. Sperbeck produce testing data, questions, and Gilberts
answers, and (2) holding that a videotape showing an episode of
Dateline NBC was inadmissible as evidence.
22 As used in the ADA, [t]he term disability means, with
respect to an individual (A) a physical or mental impairment
that substantially limits one or more of the major life
activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.
42 U.S.C. 12102(2). Gilbert claims that several neck, back, and
shoulder injuries and orthopedic problems prevent her from
walking for extended periods of time and sleeping. We assume for
the purposes of this decision that these physical problems
constitute a disability as defined by the ADA.
23 See, e.g., Parr v. L & L Drive-Inn Rest., 96 F. Supp.
2d 1065, 1085 (D. Haw. 2000) (In order to set forth a prima facie
case under Title III of the ADA, a plaintiff must prove that: (1)
he has a disability; (2) defendants [business] is a place of
public accommodation; (3) and he was denied full and equal
treatment because of his disability.) (citing Mayberry v. Von
Valtier, 843 F. Supp. 1160, 1166 (E.D. Mich. 1994)).
24 Gilberts claim could only be valid under Title III of
the ADA. Title I of the ADA prohibits discrimination in
employment. See 42 U.S.C. 12112(a). Title II prohibits
discrimination in the provision of public services by public
entities. See 42 U.S.C. 12132. Dr. Sperbeck was not Gilberts
employer, nor was he engaged in the provision of public services.
25 See 42 U.S.C. 12188(a)(1).
26 42 U.S.C. 2000a-3(a) (providing that a civil action
for preventive relief, including an application for a permanent
or temporary injunction, restraining order, or other order, may
be instituted by the person aggrieved).
27 42 U.S.C. 12188(b)(2)(B).
28 See, e.g., Cole v. National Collegiate Athletic Assn,
120 F. Supp. 2d 1060, 1067 (N.D. Ga. 2000).
29 Moody-Herrera v. State, Dept of Natural Res., 967 P.2d
79, 87 (Alaska 1998).
30 AS 18.80.300(14) states that
public accommodation means a place that
caters or offers its services, goods, or
facilities to the general public and includes
a public inn, restaurant, eating house,
hotel, motel, soda fountain, soft drink
parlor, tavern, night club, roadhouse, place
where food or spiritous or malt liquors are
sold for consumption, trailer park, resort,
campground, barber shop, beauty parlor,
bathroom, resthouse, theater, swimming pool,
skating rink, golf course, cafe, ice cream
parlor, transportation company, and all other
public amusement and business establishments,
subject only to the conditions and
limitations established by law and applicable
alike to all persons.
31 Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004)
(citing Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).
32 Id. (citing A.H. v. W.P., 896 P.2d 240, 243 (Alaska
1995)).
33 Peterson, 93 P.3d at 464 n.9.
34 Gilberts initial brief suggested that the psychological
tests administered by Dr. Sperbeck may have been biased against
the disabled, and that Dr. Sperbeck used Gilberts disabilities to
portray her as hysterical and deprive her of insurance coverage.
This is a variation on Gilberts argument that Dr. Sperbeck
conducted a fraudulent IPE and misrepresented her to the
arbitrator. It is therefore barred by witness immunity. See
supra Part III.B.
35 See Alaska R. App. P. 212(c)(3) (providing that reply
brief may raise no contentions not previously raised in either
the appellants or appellees briefs).
