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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alexander v. State, Dept. of Corrections (12/18/2009) sp-6442
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
| KENNETH S. ALEXANDER, | ) |
| ) Supreme Court No. S- 13264 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-5151 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF CORRECTIONS, | ) No. 6442 December 18, 2009 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Kenneth S. Alexander, pro se,
Anchorage. Stephanie Galbraith Moore,
Assistant Attorney General, Anchorage, and
Richard A. Svobodny, Acting Attorney General,
Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Eastaugh,
Fabe, Winfree, and Christen, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. Kenneth Alexander is a former federal prisoner who had
been temporarily housed at an Alaska Department of Corrections
(DOC) facility. He sued DOC, alleging that it negligently failed
to provide him with proper medical care for his injured hand.
After a jury trial, he prevailed against the state. He contends
on appeal that the trial court erred in granting the states
request for a directed verdict on his economic loss claims, and
in denying him prejudgment interest, costs, and damages for
future pain and suffering without a written ruling. We conclude
that the trial court correctly granted the directed verdict and
that the court did not deny Alexander damages for future pain and
suffering. But we also conclude that it was error to deny him
prejudgment interest and costs on past non-economic damages, and
remand for further proceedings as to those issues. We affirm as
to all other issues.
II. FACTS AND PROCEEDINGS
In March and April 2005, while Kenneth Alexander was a
federal prisoner temporarily housed in a DOC facility, he filed
with DOC at least seven requests for medical care for his right
hand. In response, DOC employees examined his hand, prescribed
medication, applied a splint, and ordered x-rays. The x-rays,
taken on March 23, revealed a bone fracture. Alexander asserted
that he hurt his hand when it was caught or slammed in a steel
cell door while he was in DOC custody; the state contended that
he injured it by punching something, possibly before entering DOC
custody. Alexander received no further medical care before he
was transferred out of DOC custody in early April.
Alexander sued the State of Alaska, alleging that it
negligently failed to provide him with proper medical care for
his hand. During a three-day jury trial in August 2008 both
sides presented medical witnesses who testified about the cause
and effects of Alexanders injury, the recommended course of
treatment, and the treatment he received from DOC. Alexander did
not testify.
After Alexander presented his case, the state moved for
a directed verdict on his economic loss claims. The trial court
granted the motion, stating that there ha[d] been no testimony of
any economic loss. After the state rested, the court instructed
the jury that it could award Alexander damages for past and
future non-economic losses if it found that the states negligence
caused the losses.
The jury, using a special verdict form submitted by the
state and edited by the court, found that both the state and
Alexander were negligent, that the states negligence caused
$75,000 of non-economic damages to Alexander, and that the state
was at fault for sixty percent of the damages. The special
verdict form did not include instructions or spaces for the jury
to distinguish between past and future losses. Upon return of
the verdict, the state filed a proposed final judgment that did
not award Alexander prejudgment interest or attorneys fees and
included a blank line for award of allowable costs. Alexander
objected to the proposed final judgment, arguing that he was
entitled to prejudgment interest, paralegal fees, and costs. The
trial court signed the states proposed final judgment without
making any changes, and entered a final judgment against the
state for $45,000 (sixty percent of the $75,000 damages found by
the jury).
Alexander appeals the directed verdict on his economic
loss claims and the denial of prejudgment interest and costs.
He also seeks damages for future pain and suffering. He has
appeared pro se throughout these proceedings.
III. DISCUSSION
A. Standard of Review
We review de novo the grant of a directed verdict1 to
determine whether the evidence, when viewed in the light most
favorable to the non-moving party, is such that reasonable
persons could not differ in their judgment as to the facts.2
Whether a prevailing party recovering a money award is
entitled to prejudgment interest is a question of law that we
review using our independent judgment, keeping in mind that such
awards should be denied only to avoid an injustice. 3
We review a trial courts cost award for abuse of
discretion.4
B. Whether It Was Error To Deny Alexander Economic Damages
In his complaint Alexander requested damages for
economic loss from past, present and future medical expenses and
loss of work. At the close of Alexanders case, the state moved
for a directed verdict on his economic loss claims. The trial
court granted the motion, stating: [T]here has been no testimony
of any economic loss . . . . [W]ithout . . . testimony . . .
providing . . . data as to what economic loss is, there is no
basis for a fact finder, the jury, the Court, anyone, concluding
what it cost you in terms of wages, what it cost you in terms of
anything.
We have held that [t]he law does not permit a recovery
of damages which is merely speculative or conjectural and that
the plaintiff bears the burden of providing some reasonable basis
upon which a jury may estimate with a fair degree of certainty
the probable loss which plaintiff will sustain in order to enable
it to make an intelligent determination of the extent of this
loss.5 A plaintiff must produce some tangible evidence of future
loss, although it does not have to be fixed with the same degree
of certainty as [is] possible in the case of past earnings6 and
other damages.
Alexander presented no evidence as to the amount of his
past medical expenses or wages lost before trial. The state did
not either. Alexander did not testify. As a result, there was no
evidence on those damages claims and Alexander was not entitled
to recover for those alleged losses.
To recover for future medical expenses, the plaintiff
must prove (1) to a reasonable probability that [the expenses]
will occur, and (2) the amount of such damages . . . to such a
degree as to allow the finder of fact to reasonably estimate the
amount. 7 [T]he jury cannot be allowed to speculate or guess in
making allowance for future medical expenses; there must be some
data furnished the jury upon which it might reasonably estimate
the amount to be allowed for this item.8 Several witnesses
testified about Alexanders future pain and suffering and
discussed residual pain, weakness of grip and loss of range of
motion and some impairment of function in activities of daily
living. But no witness testified about the amount of his
possible future medical expenses or otherwise provided the jury
some means of putting a value on that claim. As a result,
Alexander was not entitled to recover damages on his medical
expense claim.
To recover for lost earning capacity, a plaintiff must
offer some evidence of loss of earnings in the future as a result
of his permanent injury and, if possible, the nature and extent
of his loss.9 There should be more evidence than that which
merely shows the nature of plaintiffs injuries and his vocation.10
Alexander did not offer any evidence regarding his vocation, his
past earnings, or his likely future earnings, nor did the state.
Alexander was therefore not entitled to recovery for lost earning
capacity.
Alexander did not testify, and he did not call any
witnesses to testify about past or future losses, either medical
or work-related. The state offered no evidence on these topics.
Considering the dearth of evidence, even viewing the evidence in
the light most favorable to Alexander, no reasonable person could
disagree with the trial courts ruling. As a result, the directed
verdict was appropriate.
Alexanders brief quotes Alaska Rule of Civil Procedure
94, which provides that the civil rules may be relaxed when
strict adherence to them will work injustice.11 He makes no
argument related to the rule. Even if we take Alexanders
quotation of Rule 94 as an argument that the procedural rules of
court should have been relaxed for him, the trial court was not
required to relax Alexanders substantive burden of proving
economic loss.12 In any event, Alexander did not ask the court to
rely on Rule 94 at trial; he therefore cannot now demonstrate
that it was an abuse of discretion not to relax the rules.13
Failing to relax the rules was certainly not plain error.
C. Whether It Was Error To Deny Alexander Prejudgment Interest
Alexanders original complaint requested prejudgment
interest on his damage award. Alexander argues that the trial
court erred by failing to grant prejudgment interest. He asserts
that prejudgment interest should have been granted on the entire
award or, alternatively, that the case should be remanded for an
explanation of the trial courts denial of prejudgment interest.
The state argues that prejudgment interest should not be granted
on the entire award, but agrees that the case should be remanded
to the trial court for determination of what portion of the
verdict compensates Alexander for past losses, and for award of
prejudgment interest on that amount.
Prejudgment interest should be denied only to avoid an
injustice, such as a double recovery.14 Alaska Statute
09.30.070(c) provides that [p]rejudgment interest may not be
awarded for . . . future noneconomic damages. The jury was
instructed that it could award both past and future non-economic
damages. The special verdict form prepared by the state and
submitted to the jury did not distinguish between separate past
and future non-economic damages or permit the jury to return
separate awards on those two claims.
As the state requests, we remand for award of
prejudgment interest on the portion of the jury verdict that can
be attributed to past non-economic damages.15 We leave it to the
trial court on remand to decide how to separate past and future
losses, and whether additional evidence is needed.16
D. Whether It Was Error To Deny Litigation Costs to Alexander
The trial court did not grant litigation costs to
Alexander. Alexander argues that he is entitled to costs
incurred in suing, including postage, transportation, copying,
and paralegal costs. The state argues that even though Alexander
might have been entitled to recover costs, he did not properly
request them.
Alaska Rule of Civil Procedure 79 allows a prevailing
party to recover costs by filing a cost bill with supporting
documents within ten days of judgment. If the party does not
meet the deadline, the right to costs is waived.17 Alexander, in
his Notice of Objection to Proposed Final Judgment, requested
costs and expenses incurred in connection with this case. He
filed this notice six days after the state filed its proposed
judgment and four days before the court issued the final
judgment. Alexander did not file an itemized and verified cost
bill as Civil Rule 79(b) requires.
Alexanders request for an award of costs was
procedurally defective, but he nonetheless requested an award of
costs. The trial court must inform a pro se litigant of the
proper procedure for the action he or she is obviously attempting
to accomplish when he or she submits procedurally defective
motions or requests.18 The defective request therefore triggered
a need to tell Alexander how to proceed. Failing to do so was an
abuse of discretion.19
Alexanders request for paralegal costs, if considered a
request for paralegal fees, is covered by Rule 82(b)(2). That
rule allows recovery of actual fees for legal work performed by a
paralegal, but only in cases in which the prevailing party did
not recover a money judgment.20 Because Alexander recovered money
damages, he is not entitled to recover actual paralegal fees.
E. Whether the Court Denied Alexander Damages for Future Pain
and Suffering
Alexander argues that the trial court erred by denying
him damages for future pain and suffering. The state asserts
that the trial court did not deny him damages for future pain and
suffering.
The court instructed the jury that it could consider
both past and future non-economic losses:
You may award the plaintiff a fair amount to
compensate the plaintiff for pain and
suffering . . . from harm legally caused by
defendants negligence. Such an award should
fairly compensate the plaintiff for the non-
economic losses he has experienced from the
date of the injury until the date of the
trial and for non-economic losses that he is
reasonably probable to experience in the
future.
Having submitted the claim to the jury, the trial court did not
deny Alexander damages for future pain and suffering. If
Alexander believed that the jury was not adequately informed of
his request for damages for pain and suffering, he should have
objected to the special verdict form for its lack of itemization.
But he did not object, and there was nothing inherently wrong
with permitting the jury to make a lump sum award.21 We must
assume either that the jury did award damages for future pain and
suffering22 or chose not to do so.23 Either way, it appears the
jury addressed this damages item, and Alexanders argument that
the court erred is without merit.24
F. Whether It Was Error Not To Issue Written Rulings
Alexander argues that the trial court erred by failing
to give [a] written ruling for its denial of prejudgment
interest, future economic damages, costs and compensation for
future pain and suffering. The trial court is under no
obligation to issue a written ruling for its decision to grant
the states motion for a directed verdict on Alexanders economic
loss claims,25 or for its denial of prejudgment interest and
costs.
IV. CONCLUSION
We AFFIRM in part and REMAND in part for award of
prejudgment interest and costs.
_______________________________
1 L.D.G., Inc. v. Brown, 211 P.3d 1110, 1117 (Alaska
2009).
2 Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska
2005) (quoting K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d
702, 722 (Alaska 2003)).
3 Sidney v. Allstate Ins. Co., 187 P.3d 443, 448 (Alaska
2008) (quoting Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000)).
4 Sever v. Alaska Pulp Corp., 931 P.2d 354, 362 n.13
(Alaska 1996) (citing Kaps Transp., Inc. v. Henry, 572 P.2d 72,
77 (Alaska 1977)).
5 City of Fairbanks v. Nesbett, 432 P.2d 607, 616 (Alaska
1967) (discussing proof required to recover for lost earning
capacity).
6 Id.
7 Pluid v. B.K., 948 P.2d 981, 984 (Alaska 1997) (quoting
Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994))
(emphasis in original); see also Nesbett, 432 P.2d at 618.
8 Nesbett, 432 P.2d at 618 n.31 (quoting Henderson v.
Breesman, 269 P.2d 1059, 1061-62 (Ariz. 1954)) (alteration in
original).
9 Id. at 616.
10 Id.
11 Civil Rule 94 states [t]hese rules are designed to
facilitate business and advance justice. They may be relaxed or
dispensed with by the court in any case where it shall be
manifest to the court that a strict adherence to them will work
injustice.
12 See Pieper v. Musarra, 956 P.2d 444, 446-47 (Alaska
1998) (not relaxing pro se litigants burden of demonstrat[ing]
the existence of evidence); cf. Ghete v. Anchorage, 948 P.2d 973,
975-76 (Alaska 1997) (explaining that we have relaxed procedural
rules for pro se litigants but have never relaxed the substantive
requirements of Civil Rule 60(b)).
13 See Pieper, 956 P.2d at 447 (considering pro se
litigants arguments not raised at trial level waived).
14 Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000) (quoting
Tookalook Sales & Serv. v. McGahan, 846 P.2d 127, 129 (Alaska
1993)).
15 See Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1041
(Alaska 2002) (remanding to trial court for recalculation without
awarding prejudgment interest on the portion of the jury verdict
attributed to future damages).
16 A second problem arises if the special verdict forms
fail to differentiate between past and future money damages; the
court is then unable to comply with Alaska Civil Rule 58.2.
Among other things, Civil Rule 58.2 requires that judgments for
payments of money itemize the principal amount of the judgment,
the portion of the principal that accrues prejudgment interest,
the prejudgment interest rate, and the date from which the
prejudgment interest is to be calculated. Money judgments must
conform with the sample judgment form published at the end of
Civil Rule 58.2.
17 Civil Rule 79(b) provides in part:
To recover costs, the prevailing party
must file and serve an itemized and verified
cost bill, showing the date costs were
incurred, within 10 days after the date shown
in the clerks certificate of distribution on
the judgment. Failure of a party to file and
serve a cost bill within 10 days, or such
additional time as the court may allow, will
be construed as a waiver of the partys right
to recover costs. The prevailing party must
have receipts, invoices, or other supporting
documentation for each item claimed.
18 Bauman v. State, Div. of Family & Youth Servs., 768
P.2d 1097, 1099 (Alaska 1989) (holding that motion in opposition
to motion for summary judgment filed without supporting
affidavits triggers need for instructions from court, but failure
to file even a defective motion does not trigger same duty).
19 Genaro v. Municipality of Anchorage, 76 P.3d 844, 845-
47 (Alaska 2003) (holding that it was abuse of discretion not to
inform pro se litigant of proper procedure for action he was
attempting to accomplish).
20 Civil Rule 82(b)(2) provides in part:
In cases in which the prevailing party
recovers no money judgment, the court shall
award the prevailing party in a case which
goes to trial 30 percent of the prevailing
partys reasonable actual attorneys fees which
. . . shall include fees for legal work . . .
performed by a . . . paralegal . . . .
21 See Hayes v. Xerox Corp., 718 P.2d 929, 931, 933
(Alaska 1986) (concluding that lump sum award was not
unreasonable even though it did not specify amount awarded for
pain and suffering).
22 See Irving v. Bullock, 549 P.2d 1184, 1188 (Alaska
1976) (upholding jury verdict where there was nothing in the
amount of the verdict or on its face which indicate[d] that . . .
damages [for pain and suffering] were omitted).
23 The jury must award damages for pain and suffering if
[t]he record contains substantial and uncontradicted evidence
that [plaintiff] did experience pain [and] suffering. Walker v.
Alaska Rd. Commn, 388 P.2d 406, 407 (Alaska 1964). At trial, DOC
challenged Alexanders pain and suffering claim sufficiently that
Walker does not apply.
24 Alexander does not argue that no reasonable jury could
have awarded only $75,000 for future pain and suffering, and he
did not move for a judgment notwithstanding the verdict. We do
not consider whether the $75,000 was inadequate. See Irving, 549
P.2d at 1189.
25 Cf. L.D.G., Inc. v. Brown, 211 P.3d 1110, 1124 (Alaska
2009) (presuming without stating that oral grant of motion for
directed verdict was proper).
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