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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hymes v. DeRamus (1/15/2010) sp-6451
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
| RITA M. HYMES and | ) |
| DONALD L. HYMES, | ) |
| ) Supreme Court No. S- 12761 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-03-01617 CI |
| ) | |
| LEONIE DeRAMUS, M.D. and | ) |
| JAMES M. POMEROY, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6451 - January 15, 2010 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Robert B. Downes, Judge.
Appearances: Donald and Rita Hymes, pro se,
Fairbanks. Megan R. Webb, Assistant Attorney
General, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
A prisoner and his wife, appearing pro se, brought a
lawsuit against a Department of Corrections doctor and physicians
assistant based on medical treatment the prisoner received while
incarcerated at the Fairbanks Correctional Center. The superior
court granted summary judgment to the doctor and physicians
assistant because the prisoner did not exhaust his administrative
remedies. The prisoner and his wife appeal this and several
other actions by the superior court. Because at least one of the
prisoners malpractice claims may not have been subject to an
exhaustion requirement, because the prisoner raised material
factual disputes as to whether exhaustion should have been
excused for the remaining claims (based on an alleged threat of
retaliation and alleged lack of access to a grievance manual),
and because the superior court should have considered the
prisoners medical expert affidavits, we remand to the superior
court. On all other issues, we affirm the decisions of the
superior court.
II. FACTS AND PROCEEDINGS
This is the second time that this case is before us.1
Donald Hymes, a federal prisoner, was temporarily incarcerated at
the Fairbanks Correctional Center (FCC), a state facility, from
May 2003 to August 2003.2 At the time of his incarceration at
FCC, Hymes was sixty-eight years old and had various medical
problems, including arthritis, high blood pressure, thyroid
problems, prostate and bladder problems, psoriasis, and a hernia.
He was also taking six prescription medications.
In July 2003 Hymes and his wife Rita Hymes filed a pro
se lawsuit against Dr. Leonie DeRamus and Michael Pomeroy,
medical personnel who worked with the Alaska Department of
Corrections (DOC).3 Hymes alleged medical malpractice and
failure to report elder abuse, while Rita alleged negligent
infliction of emotional distress (NIED) and loss of consortium.4
In the medical malpractice claim, the Hymeses specifically
alleged that Hymes was not given the medications and proper
medical care that he needed while he was incarcerated. The
Hymeses stated in their complaint that even though Hymes had been
prescribed six medications by his Veterans Administration doctor,
he received none of those medications during his first few days
at FCC. According to the complaint, FCC gradually began to
provide Hymes with his necessary medications, but did so in an
inconsistent fashion. The Hymeses alleged that the only contact
Hymes had with a medical doctor in FCC was fifteen minutes with
Dr. DeRamus. They also alleged that prison guards refused to
accommodate Hymess bladder problems, and because he was prevented
from using the restroom during visits, Hymes suffered
uncontrolled urination during these visits. Also, Hymes
apparently suffered from high blood pressure and related
problems, but he was given only Tylenol when he met with the
nurse about his worsening condition. The Hymeses also averred
that Hymes was improperly given substitute medications instead of
the Methotrexate that he had been prescribed for his psoriatic
arthritis. Finally, the Hymeses alleged that Pomeroy threatened
to put Don in the hole if he didnt stop telling people he was
not getting adequate medical care . . . .5
In January 2004 Dr. DeRamus and Pomeroy moved for
summary judgment, supporting their motion with an expert
affidavit from Dr. John Robertson, the Health Services
Administrator and Medical Director for DOC, who found no evidence
of medical malpractice.6 The Hymeses responded with an
opposition to the motion and a supporting memorandum stating that
they did not receive the opportunity to complete discovery and
that the superior court had not clarified whether they were
required to have a medical expert witness.7 In February the
superior court issued an order explaining to the Hymeses that if
they did not provide an expert affidavit establishing the
standard of care due from the defendants, breach thereof, and
damages proximately caused by such a breach of duty of care,
summary judgment will be entered against them.8 The superior
court gave them a deadline of March 27.9 On March 26 the Hymeses
requested a continuance.10 The superior court denied the request
and granted summary judgment in favor of Dr. DeRamus and Pomeroy.11
On appeal we reversed, concluding that the superior
court erred in giving the Hymeses only one additional month in
which to submit a responsive expert affidavit.12 We remanded with
instructions to grant the Hymeses a reasonable continuance to
obtain an opposing expert affidavit.13
Upon remand, the case was assigned to Superior Court
Judge Robert B. Downes. On November 14, 2005, Judge Downes held
a status hearing with the parties. He gave the Hymeses until
January 15, 2006, to file their expert affidavit. Judge Downes
also noted on the record that he was acquainted with Donald
Hymes, one of the defense attorneys, and the father of one of the
defense attorneys; he stated that he previously ruled in an
unrelated case involving Rita Hymes; and he asserted that these
connections would not affect his decisions in the case.
On January 9, 2006, the Hymeses filed the expert
affidavit of Dr. Barbara J. Houk, a psychiatrist, and a notarized
letter from Dr. Herbert Day, an osteopathic doctor. Dr. DeRamus
and Pomeroy filed a reply on February 14, 2006, arguing that the
Hymeses failed to provide admissible evidence to defeat summary
judgment on the technical malpractice claims (the claims
requiring a medical expert) and that the non-technical claims
should be dismissed because Hymes failed to exhaust
administrative remedies.
When Dr. DeRamus and Pomeroy filed a reply brief with
regard to their initial motion for summary judgment on February
14, 2006,14 they also filed a motion to amend their answer and a
new motion for summary judgment. In the motion to amend, Dr.
DeRamus and Pomeroy sought permission to add the defense of
failure to exhaust administrative remedies. In the new motion
for summary judgment they argued that all of the Hymeses claims
were barred by Hymess failure to exhaust the administrative
remedies available through the DOCs grievance process. The
Hymeses did not oppose the motion to amend but did oppose the new
motion for summary judgment.
On February 15, 2006, Dr. DeRamus and Pomeroy moved to
strike Dr. Houks affidavit and Dr. Days letter. They argued that
Dr. Houk was not a qualified expert witness for this matter and
that Dr. Days letter was an inadmissible unsworn statement with
no relevant information about the medical malpractice claims.
The superior court entered an order on February 23,
2006, addressing the Hymeses failure to file an opposition to the
original motion for summary judgment when they filed the
affidavit and notarized letter. The order advise[d] Plaintiffs
that they have the opportunity to submit a supplemental
Opposition if they so wish and gave a deadline of March 7, 2006.
The Hymeses did not file a supplemental opposition to the
original summary judgment motion, but they did oppose the motion
to strike.
On April 10, 2006, the superior court granted Dr.
DeRamus and Pomeroys motion to strike the expert affidavit and
letter submitted by the Hymeses. However, the superior court
provided the Hymeses with forty-five additional days to obtain an
expert affidavit that would comply with the requirements of AS
09.20.185(a).
Nevertheless, after only thirty-seven days, on May 17,
2006, the superior court granted the new motion for summary
judgment regarding failure to exhaust administrative remedies,
dismissing all of Donald Hymess claims. In the order granting
the motion for summary judgment, the court also explained that
Rita Hymess loss of consortium claim was barred by the doctrine
of failure to exhaust because it was a derivative claim. The
court noted that the NIED claim survived the failure to exhaust
defense because it was an independent claim not subject to the
DOC grievance procedures. Thus, the NIED claim was the only
claim remaining. The Hymeses moved for reconsideration of the
courts order, asserting that Donald was a victim of judicial
misconduct, due process violations, and a violation of the right
to jury trial. The superior court denied the motion. The
Hymeses then filed a petition for review, which we denied.
In December 2006 the Hymeses moved to file the expert
affidavit of C. Michael Neuwelt, M.D. In the alternative, the
Hymeses asked the superior court to refer the case to an expert
advisory panel pursuant to Alaska Civil Rule 72.1.
Also in December, Dr. DeRamus and Pomeroy filed a third
motion for summary judgment, seeking dismissal of Rita Hymess
NIED claim. In the Hymeses response, they asked that Judge
Downes recuse himself based on alleged bias.
On March 28, 2007, the superior court issued a
comprehensive order that resolved the various outstanding
motions. The court denied the Hymeses request for recusal and
their request to include Dr. Neuwelts affidavit in the record.
It also declined the request to appoint an expert advisory panel
under Civil Rule 72.1 Finally, the superior court entered
summary judgment in favor of Dr. DeRamus and Pomeroy on the NIED
claim. Later the court denied the Hymeses motion for
reconsideration and entered final judgment in favor of Dr.
DeRamus and Pomeroy. The Hymeses appeal, acting pro se.
III. STANDARD OF REVIEW
We review an award of summary judgment de novo.15 We
will affirm only if there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.16
When making this determination we draw all reasonable inferences
in favor of the non-moving party.17
We review a decision on a motion for recusal under the
abuse of discretion standard and will not overturn a trial judges
recusal decision unless it is plain that a fair-minded person
could not rationally come to that conclusion on the basis of the
known facts.18
We review [a] trial courts decision to admit or exclude
evidence, including whether to exclude expert testimony . . . for
an abuse of discretion.19
A trial courts interpretation of court rules presents a
question of law that we review de novo.20 However, we review the
superior courts decision not to appoint an expert advisory panel
under Civil Rule 72.1 using the abuse of discretion standard
because [t]rial judges are not obliged to appoint advisory
panels, but rather have discretion to determine whether a panel
is necessary.21
IV. DISCUSSION
A. Whether It Was Error To Grant Summary Judgment in Favor
of Dr. DeRamus and Pomeroy Based on Hymess Failure To
Exhaust Administrative Remedies
The superior court granted Dr. DeRamus and Pomeroys
motion for summary judgment with regard to Donald Hymess medical
malpractice and elder abuse claims and Rita Hymess derivative
claim for loss of consortium. The court concluded that Donald
failed to exhaust administrative remedies available through the
DOC, that the failure was not excusable, and that both Donalds
direct claims and Ritas derivative claim were thereby barred.
The Hymeses argue that Donald Hymes was excused from
exhausting administrative remedies because he did not receive a
prison handbook and was therefore unaware of the procedure for an
administrative appeal. They also claim that any failure to
exhaust is excusable because members of the DOC staff were biased
against him, and that he would have been retaliated against by
being placed in the hole (administrative segregation, that is,
solitary confinement) if he filed a grievance. Dr. DeRamus and
Pomeroy respond that the Department of Corrections has a three-
step administrative grievance procedure for medical grievances,
that Hymes failed to exhaust this remedy, and that Hymess failure
to exhaust should not be excused. We analyze these claims and
defenses in light of our decision in Eufemio v. Kodiak Island
Hospital.22 In Eufemio we held that in applying the doctrine of
exhaustion of remedies, a court must decide the following: (1) is
exhaustion of remedies required; (2) if so, did the complainant
exhaust those remedies; and (3) if not, is the failure to exhaust
remedies excused?23
1. Whether exhaustion of remedies is required in this case
based on the factors set out in Eufemio
1. The superior court concluded that exhaustion was required in
this case based on our decision in Broeckel v. State, Department
of Corrections.24 There we held that the doctrine of exhaustion
of remedies generally applies to prisoner grievance cases.25
However, we have also held that a trial court should use its
discretion in a particular case to determine whether exhaustion
is required, balancing the interest of the institution in
applying its special competence, correcting its errors, and
discouraging deliberate flouting of its processes against the
complainants interest in the availability of adequate redress.26
The decision whether exhaustion of remedies should apply to a
given situation should be based on the particular case before the
court.27
Where the administrative process offers a remedy, even
an incomplete one, the policy interests behind exhaustion will
usually support requiring exhaustion to allow the agency to
correct its own errors so as to moot judicial controversies,
develop an actual record, and discourage the deliberate flouting
of its processes. 28 On the other hand, where there is no remedy
at all, and no available means for the error to be corrected in
the available administrative process, courts usually should not
require exhaustion.29 These situations are rare, and in most
exhaustion cases that we have analyzed, it has been clear that
there was some remedy to exhaust. Thus we have held that
exhaustion was required where a prison ordered a prisoner to
surrender property that could have been restored to him or for
which the Department of Corrections may have been able to
reimburse him,30 and where a building owner who contested the
number of permits he was issued could have obtained the correct
number of permits through the procedures of a zoning appeal
board.31 Likewise, we have required exhaustion in employment
disputes in which terminations can be overturned, privileges
restored, or suspensions ended.32 In Eufemio, a physician argued
that he should not have been required to exhaust because he
sought monetary damages rather than the available remedies in the
hospital grievance process, but we held this did not outweigh the
strong interests of the hospital in correcting its own errors and
to identify unfair or arbitrary processes, such as a biased
tribunal, and correct the deficiency to avoid litigation.33 If an
institution has any means of correcting errors, exhaustion should
typically be required.
It is therefore necessary to determine whether Hymess
claims were of the type that could have been addressed by the
prison grievance process. Many problems, including some that
could be raised as malpractice claims, may be corrected, and the
damage mitigated, if the claim is brought to the attention of
prison authorities in a timely manner. In those cases, the
prisons interest in requiring exhaustion should carry significant
weight. One example of such a claim is Hymess complaint that his
medications were provided inconsistently. It is clear from this
complaint that Hymes was aware of the risks and problems
associated with such a failure, and aware that immediate action
could remedy the problem or reduce potential damage going
forward. The classic reasons for requiring exhaustion clearly
apply to this situation: The prison has an interest in quickly
having the situation brought to its attention and having the
chance to correct an error in its systems and to mitigate
damages. The department should be given the immediate
opportunity to evaluate allegedly substandard care and correct
its own errors. This gives the department the opportunity to
ensure that no harm or deterioration occurs that could have been
quickly and efficiently reversed by the grievance process and
that it is given the chance to apply its institutional competency
in prison administration to remedy defective practices.
On the other hand, certain medical malpractice claims
cannot possibly be remedied by any other means than compensatory
damages. In a situation in which the medical treatment or error
is completely in the past, and the damage to the prisoners body
is irreversibly done, the prison has no means of correcting its
own errors. The issue in prisoner malpractice claims in which
the harm is completed is not that any remedies are potentially
inadequate to fully compensate the plaintiff, as was possible in
Eufemio, but that the Department of Corrections process offers no
remedy at all.34 Such cases are in a different category than
those in which exhaustion is excused for futility or inadequacy;
in the futility/inadequacy cases a remedy exists, but the court
finds it either extremely unlikely to be provided, or so
inadequate that it would not be in the interest of fairness to
require it. If a court finds no effective remedy is available,
it will generally be an abuse of discretion to require exhaustion
of remedies.
We note that one of Hymess claims may be of the type
for which exhaustion is generally not required. The affidavit
from Dr. Neuwelt indicates that prescribing Hymes a medication
called Feldene may have been an error which caused Hymes long-
term damage in the form of increase of blood pressure and renal
impairment. The affidavit from Dr. Houk states that it was error
to replace Methotrexate with Feldene because Feldene is not
appropriate to treat the specific problem Hymes had and that the
provider who prescribed Feldene should have monitored renal,
liver, and other functions. By the time the elements of this
claim were discovered, Hymes was no longer under the care of the
Fairbanks Correctional Center and the health care grievance
procedure could not correct or lessen Hymess problem.35
The initial step in the Eufemio analysis is to
determine for which claims exhaustion is required. On remand,
after allowing the parties sufficient opportunity to address this
question under the guidelines articulated above, the court should
determine whether exhaustion is required for any of the claims
here. For any claim for which the court finds that exhaustion
was required, it should then consider whether, under the third
part of the Eufemio test, exhaustion should be excused.
2. Whether exhaustion of remedies should have been excused for
those claims Hymes was required to exhaust
It is undisputed that Hymes did not exhaust his
remedies for any of his claims. We therefore move on to the
third element of the Eufemio exhaustion analysis: whether the
failure to exhaust remedies was excused.
In Bruns v. Municipality of Anchorage,36 we noted that
the failure to exhaust may be excused where the administrative
remedy is inadequate37 or where the administrative procedures are
ineffective because of lack of meaningful access, bias, . . . or
the possibility that the claimant could face irreparable harm if
the administrative process is followed.38
The Hymeses argue that Donalds failure to exhaust
remedies was excused because he lacked meaningful access to the
grievance process. They allege that he was not given a copy of
the prisoner handbook or any other source of the rules and
regulations regarding grievances. Dr. DeRamus and Pomeroy
respond that DOC notified Hymes about inmate rules, rights, and
procedures and that the prisoner handbook was available for
Hymess use.
The record reveals that Donald Hymes signed part of an
Orientation Verification on May 7, 2003. But he refused to sign
under the statement that he received a Prisoner Handbook because
he said that he had not received the handbook. Rather, he signed
under the statement that reads, I have been released from the
Fairbanks Correctional Center for less than 90 days and verify
that I understand the Prisoner Rules, Rights, and Procedures at
this institution. Handbooks are available in each housing unit.
Hymes signed his name under this statement even though he had
just arrived at the prison. He had not been released from the
prison as the statement indicates. Thus, the existence of Hymess
signature hardly proves what comes before it. There is no record
evidence that he was given access to a handbook, which Timothy
Lyden, Standards Administrator for the DOC, explained contains
instructions regarding grievance procedures over any matter
within the Departments control, including an alleged violation of
the Departments regulations, a statute, or a procedure set out in
the prisoner handbook, and health care issues.
The Hymeses raised genuine issues of material fact in
their opposition to the motion for summary judgment and their
motion for reconsideration as to whether Hymes had meaningful
access to the grievance procedure. In their opposition to the
summary judgment motion, they asserted, Donald Louis Hymes was
never given a copy of the rules and regulations regarding
grievances. In their motion for reconsideration of the summary
judgment ruling, they asserted that Hymes asked if he could cross
out received Prisoner Handbook because he had not received it
but was told he could not alter the form in any way and had to
sign it. They claimed that Hymes asked whether there was a
handbook and was told yes, but [h]e did not receive one, nor did
he ever see one. Because his signature on the Orientation
Verification is under a clearly inaccurate statement indicating
that he had been released from prison, the signature cannot be
used to establish that he had any access to the handbook and
grievance procedure. Indeed, the Hymeses assertion in their
opposition to the motion for summary judgment was that Hymes had
not received the prisoner handbook.39 [Exc.50] Hymess allegations
create a factual dispute as to whether he lacked meaningful
access to the prisoner handbook and the grievance procedures.
The Hymeses also claim that Donald would have been
retaliated against by being placed in administrative segregation
or solitary confinement if he filed a grievance. [Exc. 29; At.
Br. 9] Under our rule regarding grounds for an excuse from the
exhaustion requirement, we have included the question of whether
following the grievance procedure will threaten a claimant with
irreparable harm.40 We do not interpret this, as the superior
court did, to require that Hymes show that he would in fact have
suffered irreparable medical harm had Pomeroy retaliated against
him. We conclude rather that if Pomeroy did threaten Hymes with
the punitive disciplinary sanction of solitary confinement, this
threat of retaliation excused him from following the grievance
procedures if he reasonably feared he would be irreparably
harmed.
Hymes raised a material fact dispute regarding the
threat of retaliation in his responses to Dr. DeRamus and
Pomeroys interrogatories, completed in December 2005. He
stated: Dealing with Mr. Pomeroy was extremely stressful . . . .
[A]t one point he told me that if I were to tell anyone that I
was not getting adequate treatment from him, he would see to it
that I was put in the hole.
We note that there is a potential tension between
Hymess claim that he was unaware of the grievance procedures and
his claim that he did not follow the procedures because he was
afraid of retaliation. However, we believe that it is for the
fact-finder to weigh Hymess testimony regarding these two
potential excuses with the other evidence to determine what
actually took place.
In sum, genuine issues of material fact remain
regarding whether Hymes was excused from the exhaustion
requirement due to a lack of meaningful access to the
administrative process or a threat of retaliation. Thus, it was
error to grant summary judgment on the basis of Hymess failure to
exhaust administrative remedies.41
B. Whether It Was Error To Decline To Consider Expert
Affidavits Submitted by the Hymeses
Although the affidavits at issue were not relevant to
the two motions upon which the superior court decided this case
the motion for summary judgment for failure to exhaust
administrative remedies and the motion for summary judgment on
Rita Hymess NIED claim they do relate to Donald Hymess
substantive claim of medical malpractice. Thus, the affidavits
were relevant to Dr. DeRamus and Pomeroys motion for summary
judgment regarding medical malpractice, which must be addressed
on remand. Thus, we address whether the superior court should
have considered the affidavits.
In April 2006 the superior court struck Dr. Houks
affidavit, concluding that Dr. Houk lacked the training,
experience, and board certification in a relevant field
necessary to serve as an expert. In March 2007, as part of its
omnibus order granting summary judgment to Dr. DeRamus and
Pomeroy, the superior court also denied the Hymeses request to
file the expert witness affidavit of Dr. Neuwelt, explaining
among other things that the affidavit did not meet the formal
requirements of Civil Rule 76, that the affidavit was filed four
months after the deadline, and that all claims relating to Hymes
had already been dismissed on May 17, 2006.
The Hymeses argue that the superior court erred in
excluding the expert affidavits of Dr. Neuwelt and Dr. Houk.42
Dr. DeRamus and Pomeroy do not respond on the merits, noting only
that the expert affidavits were not relevant to the motions for
summary judgment ruled upon by the superior court. But, as noted
above, the expert affidavits are relevant to the medical
malpractice issue, which the court must address on remand.
Accordingly, we address the claim that the expert affidavits
should have been considered.
Alaska Statute 09.55.540(a)(1) provides that the
plaintiff in a medical malpractice action must prove the degree
of knowledge or skill possessed or the degree of care ordinarily
exercised under the circumstances, at the time of the act
complained of, by health care providers in the field or specialty
in which the defendant is practicing. Alaska Statute 09.20.185
further provides:
(a) In an action based on professional
negligence, a person may not testify as an
expert witness on the issue of the
appropriate standard of care unless the
witness is
(1) a professional who is licensed in
this state or in another state or country;
(2) trained and experienced in the same
discipline or school of practice as the
defendant or in an area directly related to a
matter at issue; and
(3) certified by a board recognized by
the state as having acknowledged expertise
and training directly related to the
particular field or matter at issue.
(b) The provisions of (a) of this section do
not apply if the state has not recognized a
board that has certified the witness in the
particular field or matter at issue.
Neuwelt Affidavit
The superior court refused to consider Dr. Neuwelts
affidavit on several grounds: that it was not in the proper form
under Civil Rule 76,43 that it was untimely, and that it did not
meet the requirements of AS 09.55.540 because it was based almost
entirely on answers to hypothetical questions and thus failed to
address the relevant standard of care, that the defendants lacked
knowledge or skill to meet the standard, and that Donald Hymes
therefore suffered injuries that he would not have otherwise
suffered as a result. We decline to endorse refusal to
consider a document for the failure of a pro se litigant to meet
the technical requirements of the civil rules regarding page size
and the like, without the litigant having been afforded the
opportunity to meet the requirements after notice of them. As to
the timeliness of the submission, the superior court granted the
motion for summary judgment eight days before the deadline it had
itself set. Under these circumstances, the litigant is entitled
to have his submission considered. As to the substantive
question whether Dr. Neufelts affidavit met the requirements of
AS 09.55.540 we analyze the matter somewhat differently than the
superior court. It is true that Dr. Neuwelts affidavit contains
his answers to hypothetical questions, but these were all
questions that may be relevant to Hymess medical malpractice
claim. The questions track the claims in Hymess complaint, and
they are almost exactly the same as the questions answered by Dr.
Houk in her affidavit. Accordingly, Dr. Neuwelts responses
assist in establishing the required standard of care
under AS 09.55.540(a)(1). In addition, he meets the
qualifications requirements as a board-certified rheumatologist.
As a rheumatologist, Dr. Neuwelt is an expert in the treatment of
diseases of the connective tissue.44 His curriculum vitae reveals
that Dr. Neuwelt, who has been the Chief of Rheumatology at the
Alameda County Medical Center in Oakland, California, and who has
held clinical professorships of medicine at the University of
California, San Francisco and Stanford University, has extensive
experience and training in rheumatology. Therefore, he is
qualified to testify regarding the physical effects of abrupt
discontinuation of the drug Methotrexate, which Dr. Neuwelt
identifies as the gold standard disease-modifying agent for
psoriatic arthritis.
Houk Affidavit
The superior court found that Dr. Houk was not
qualified as an expert in this case partly because she lacked
training or knowledge in correctional medicine, emergency
medicine, endocrinology, orthopedics/the treatment of arthritis,
or autoimmune diseases. But these fields are irrelevant to the
issue before the court: Could Dr. Houk provide testimony
relevant to the standard of AS 09.55.540(a)(1) and did she meet
the requirements of AS 09.20.185(a) as to licensure, training and
experience, and certification directly relevant to an area of
practice at issue in this case? We turn now to those questions.
Dr. Houks affidavit reveals that she is a psychiatrist
and psychotherapist and that she is trained in treating a variety
of mental illnesses. Her affidavit discusses the relationship
between depression and hypothyroidism, two conditions which Hymes
allegedly experienced. She also discusses the consequences of
the abrupt discontinuation of the drug, Methotrexate, which
include depression. These are areas about which she is qualified
to testify as a psychiatrist. Turning to the specific
requirements of AS 09.20.185(a), appellees do not contest that
she met subsection (1) (licensure), a concession that the
superior court accepted and agreed with. Dr. Houks affidavit
reveals that she has sufficient training and experience in
psychiatry and psychotherapy and related fields to meet the
requirements of subsection (a)(2) (training and experience in an
area directly related to a matter at issue) to testify regarding
the psychological effects of failing to adequately treat Hymess
physical conditions.45 However, as to subsection (a)(3), it
appears that she lacked board certification in psychiatry. Thus,
while it was an abuse of discretion for the superior court to
strike Dr. Houks affidavit on the basis that she did not have
sufficient training or experience in correctional medicine or the
other specialities mentioned by the court, it appears that Dr.
Houk lacked the required certification in psychiatry to testify.
On the other hand, Dr. Houk indicated in her affidavit that she
is a diplomat[e] of the American Psychotherapy Association. On
remand, Hymes should be allowed to offer a qualified expert (or
show that Dr. Houk is in fact certified in a relevant area).
Because the affidavit of Dr. Neuwelt met the
requirements of AS 09.55.540 and AS 09.20.185, the superior court
must consider it on remand. The court should also allow Hymes
the opportunity to submit an affidavit of a board-certified
psychiatrist in place of Dr. Houks affidavit (or show that Dr.
Houk is board-certified).46
C. Whether It Was Error To Grant Summary Judgment in Favor
of Dr. DeRamus and Pomeroy in Relation to Rita Hymess
NIED Claim
The superior court granted Dr. DeRamus and Pomeroy
summary judgment on Rita Hymess NIED claim, holding that she did
not meet the requirements for the bystander or preexisting duty
exceptions to the general requirement of physical injury.
The Hymeses appear to argue that it was inconsistent
for the superior court to deny Dr. DeRamus and Pomeroys motion
for summary judgment regarding failure to exhaust administrative
remedies in relation to the NIED claim and then grant Dr. DeRamus
and Pomeroys subsequent motion for summary judgment in relation
to the NIED claim. Dr. DeRamus and Pomeroy respond that the
superior courts denial of the motion for summary judgment
regarding the failure to exhaust defense in relation to the NIED
claim . . . did not constitute a grant of summary judgment in the
Hymes favor, but rather merely reflected that DeRamus was not
entitled to summary judgment under this legal theory. Dr.
DeRamus and Pomeroy assert (1) that it was not inconsistent for
the court to grant the new motion for summary judgment under a
different legal theory, and (2) that the Hymeses fail to make
any substantive challenge to the order dismissing the NIED claim,
so this court should deem any such challenge waived. We agree
with both propositions.
The superior courts order granting summary judgment in
favor of Dr. DeRamus and Pomeroy on Rita Hymess NIED claim is not
inconsistent with the courts earlier order denying summary
judgment on the NIED claim on the basis of failure to exhaust
administrative remedies. In the earlier order, the court denied
summary judgment in relation to the NIED claim because as a non-
prisoner, Rita was not obligated to exhaust administrative
remedies. The court granted summary judgment in the later order
based on a substantive analysis of Ritas NIED claim.
Because the Hymeses fail to make a substantive argument
regarding the merits of the NIED claim, they have waived the
issue under our well-established rule that issues not argued in
opening appellate briefs are waived.47 This rule applies equally
to pro se litigants.48 Although we require courts to provide some
procedural guidance for a pro se litigant when it is clear what
action he or she is obviously trying to accomplish, the failure
to raise an argument in an opening brief leaves the other party
with no notice or opportunity to respond to the argument.49
D. Whether It was an Abuse of Discretion for Judge Downes
Not To Recuse Himself
In the order granting Dr. DeRamus and Pomeroy summary
judgment on the NIED claim, Judge Downes also denied the Hymeses
request for recusal, stating that he knows Hymes, bears him no
ill will, is not biased against Mr. Hymes, and in fact has
enjoyed [his] acquaintance. Judge Downes had earlier addressed
the Hymeses allegations of bias in his order denying
reconsideration of his decision granting summary judgment for
failure to exhaust. In this order Judge Downes stated that
[t]his Court routinely entertains motions for summary judgment,
and to do so is not misconduct, and that the Hymeses allegation
that this Court is biased against them is unfounded and
unsupported . . . .
On appeal, the Hymeses argue that Judge Downes should
have recused himself because he was biased against them. Dr.
DeRamus and Pomeroy respond that the claims of bias were based
simply on Judge Downes adverse rulings, and, as such, the claims
are not sufficient to show that the judges decision not to recuse
himself was an abuse of discretion.
Alaska Statute 22.20.020(a)(9) provides that [a]
judicial officer may not act in a matter in which . . . the
judicial officer feels that, for any reason, a fair and impartial
decision cannot be given. In Amidon v. State,50 we explained that
[s]ince the initial determination has been placed in the
discretion of the trial judge, his decision should be given
substantial weight, and the decision not to recuse should be
reviewable only for abuse of discretion.51 Also, in DeNardo v.
Corneloup,52 we stated, [j]udges should recuse themselves if there
is the appearance of bias, but [b]y themselves, interpretations
of the law are not sufficient to demonstrate the existence of
bias. 53 We elaborated in DeNardo that [d]isqualification was
never intended to enable a discontented litigant to oust a judge
because of adverse rulings.54
The Hymeses make various references to judicial bias,
but they lack a persuasive argument that it was an abuse of
discretion for Judge Downes to not recuse himself from the case.
Their arguments indicate that the Hymeses are merely displeased
with Judge Downess interpretations of the law and adverse rulings
involving the exclusion of expert affidavits. Under AS
22.20.020(a)(9) and the cases interpreting it, the Hymeses
complaints are insufficient to show that Judge Downess decision
not to recuse was an abuse of discretion.55
E. Whether the Hymeses Waived Their Argument that Dr.
DeRamus and Pomeroys Treatment of Hymes Violated the
Eighth Amendment
The Hymeses argue that Dr. DeRamus and Pomeroys poor
treatment of Hymes violated the Eighth Amendment of the United
States Constitution.56 Dr. DeRamus and Pomeroy respond that the
claim is waived because the Hymeses did not plead a claim under
42 U.S.C. section 1983 alleging a violation of their federal
constitutional rights but rather only alleged medical malpractice
and negligence.
We have repeatedly held that a party may not raise an
issue for the first time on appeal.57 In Willoya v. State,
Department of Corrections,58 we held that a prisoner waived his
Eighth Amendment claim by failing to raise it in the superior
court.59 The present case is strikingly similar to Willoya.
Here, like the plaintiff in Willoya, Hymes alleged negligence
based on medical treatment he received while incarcerated.60 Like
the plaintiff in Willoya, Hymes alleged a violation of the Eighth
Amendment for the first time on appeal. As Willoya makes clear,
the Hymeses waived their Eighth Amendment claim because they did
not raise it in the superior court.
F. Whether the Superior Court Properly Dismissed the
Hymeses Elder Abuse Claim on Summary Judgment
The superior court granted Dr. DeRamus and Pomeroys
motion for summary judgment with respect to the Hymeses claim for
failure to report elder abuse. Although the Hymeses do not make
any substantive argument regarding elder abuse on appeal, they do
set forth the language of AS 47.24.013(a) and AS 47.24.015(a),
which are provisions of the elder abuse statute. They also
state, [n]o one has done anything in Appellants case to honor the
intent of the foregoing statutes. I.e., those statutes appear to
be not worth the paper they are written on. Dr. DeRamus and
Pomeroy respond that the Hymeses have waived any challenge to the
superior courts dismissal of the claim because they failed to
make any kind of substantive argument. In the alternative, Dr.
DeRamus and Pomeroy argue that AS 47.24 does not create a private
cause of action, so the Hymeses failed to plead a viable claim.
The Hymeses quotation of statutory language coupled
with the conclusory statement that [n]o one has done anything to
honor the intent of the statute constitutes waiver for failure to
adequately brief the issue.61 Even if they had not waived their
argument, it would still be without merit. Alaska Statute
47.24.013(a) provides:
If a report received under AS 47.24.010
regards the abandonment, exploitation,
abuse, neglect, or self-neglect of a
vulnerable adult who is 60 years of age
or older that is alleged to have been
committed by or to have resulted from
the negligence of the staff or a
volunteer of an out-of-home care
facility, including a facility licensed
under AS 47.32, in which the vulnerable
adult resides, the department shall
transfer the report for investigation to
the long term care ombudsman under AS
47.62.015.
Alaska Statute 47.24.015(a) further provides that [u]pon the
departments receipt of a report under AS 47.24.010 that is not
transferred under AS 47.24.013, the department, or its designee,
shall promptly initiate an investigation to determine whether the
vulnerable adult who is the subject of the report suffers from
abandonment, exploitation, abuse, neglect, or self-neglect.
Nothing in these two provisions creates a private right of action
for elder abuse. Rather, the provisions require reporting of
elder abuse and set out the procedures that shall be taken if a
report is received by the Department of Health and Social
Services. As Dr. DeRamus and Pomeroy point out, the Act intends
to protect against such alleged abuse by ensuring that reports of
harm are properly investigated and followed up by the state.
Because the elder abuse statute does not create a private cause
of action, the superior court did not err in dismissing the
Hymeses claim on summary judgment.62
V. CONCLUSION
Because Donald Hymes had at least one malpractice claim
that may not have been subject to the exhaustion requirement, and
because he raised material fact disputes regarding whether
exhaustion should have been excused (for lack of meaningful
access to the DOC grievance procedure or the threat of solitary
confinement for continuing to complain about his treatment), we
REVERSE the grant of summary judgment that was based on his
failure to exhaust the DOC grievance procedure and REMAND this
case to the superior court. Because the Hymeses medical expert
affidavits should not have been excluded, those affidavits must
be considered on remand in order to determine the underlying
merits of the Hymeses medical malpractice claim. We AFFIRM all
other decisions of the superior court.
_______________________________
1 Many of the facts recited below are taken from our
opinion in the first appeal in this case, Hymes v. DeRamus, 119
P.3d 963 (Alaska 2005).
2 Hymes, 119 P.3d at 964.
3 Id. Mr. Pomeroy is a physicians assistant. Dr.
DeRamus is a collaborating physician and consultant to Mr.
Pomeroy. Id. n.1.
4 See id.
5 Various other allegations regarding the alleged lack of
medical treatment are found throughout the complaint.
6 Hymes, 119 P.3d at 964.
7 Id. at 964-65.
8 Id. at 965.
9 Id.
10 Id.
11 Id.
12 Id. at 964.
13 Id. at 968.
14 The Hymeses did not actually file an opposition to the
initial motion for summary judgment, but they did file the expert
affidavit of Dr. Houk and the notarized letter of Dr. Day, so Dr.
DeRamus and Pomeroy chose to respond.
15 Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001) (citations omitted).
16 Id.
17 Id.
18 Hanson v. Hanson, 36 P.3d 1181, 1183 (Alaska 2001)
(quoting R.J.M. v. State, 946 P.2d 855, 869-70 (Alaska 1997)).
19 Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 323
(Alaska 2007).
20 See Staso v. State, Dept of Transp., 895 P.2d 988, 990
(Alaska 1995) (holding that interpretation and application of
Civil Rule 42(c) is a question of law that we review de novo).
21 Kaiser v. Sakata, 40 P.3d 800, 805 (Alaska 2002)
(citing AS 09.55.536(a)).
22 837 P.2d 95 (Alaska 1992).
23 Id. at 98-99.
24 941 P.2d 893 (Alaska 1997).
25 Id. at 896.
26 Eufemio, 837 P.2d at 99.
27 See Ben Lomond, Inc. v. Municipality of Anchorage, 761
P.2d 119, 121 (Alaska 1988) (Whether a court will require
exhaustion of remedies turns on an assessment of the benefits
obtained through affording an agency an opportunity to review the
particular action in dispute.) (emphasis added); see also
Eufemio, 837 P.2d at 99 (once clear that doctrine of exhaustion
applies to type of case, court should perform balancing in
deciding whether to require exhaustion in particular case);
McCarthy v. Madigan, 503 U.S. 140 (1992) (superseded by statute
as recognized in Booth v. Churner, 532 U.S.731 (2001)) (in
absence of clear legislative mandate that particular remedy is
exclusive, sound judicial discretion governs; application of
exhaustion balancing test requires attention be directed to both
the nature of the claim presented and the characteristics of the
particular administrative procedure involved).
28 Broeckel, 941 P.2d at 896.
29 See Eidelson v. Archer, 645 P.2d 171, 181 (Alaska 1982)
(noting that [T]he exhaustion requirement has been dispensed with
where the administrative remedy is inadequate . . . .); see also
Bruns v. Municipality of Anchorage, 32 P.3d 362, 371 (Alaska
2001) (same).
30 Broeckel, 941 P.2d at 896.
31 Ben Lomond, 761 P.2d at 122.
32 See Eidelson, 645 P.2d at 183; Voight v. Snowden, 923
P.2d 778 (Alaska 1996); Eufemio v. Kodiak Island Hosp., 837 P.2d
95 (Alaska 1992).
33 Eufemio, 837 P.2d at 99.
34 See McCarthy v. Madigan, 503 U.S. 140 (1992) (where no
effective remedy offered at all, improper to require exhaustion)
(Rehnquist, J., concurring).
35 Neither the policies and procedures manual of the
Department of Corrections nor the regulations governing the
Department of Corrections indicate that the department has any
authority to pay any form of compensatory damages. See 22 AAC
5.185, 5.190.
36 32 P.3d 362, 371 (Alaska 2001) (holding that appellant
was not excused from exhausting his administrative remedies
because there remained a step in the administrative appeal
process that was not demonstrably futile).
37 Id. at 371 (citing Eidelson v. Archer, 645 P.2d 171,
181 (Alaska 1982)).
38 Id. at 371 n.46.
39 We note that these statements do not meet the standard
to defeat summary judgment under Jennings v. State, 566 P.2d
1304, 1309 (Alaska 1977), because they are not in the form of
sworn affidavits. If the trial court concluded that there was no
evidence that Hymes had no access to the handbook because the
statements were not in affidavit form, the court should have
advised the Hymeses of the necessity of putting their statements
in affidavit form. See Breck v. Ulmer, 945 P.2d 66, 75 (Alaska
1987) ( We believe the trial court should inform a pro se
litigant of the proper procedure for what he or she is obviously
trying to accomplish.) We reject the appellees contention that
our footnote in Hymes I which discussed expert testimony, not
the testimony of a party would have been sufficient to inform
the Hymeses of the requirement for an affidavit to establish
facts within Hymess personal knowledge. See Hymes, 119 P.3d 963,
966 n.12 (Alaska 2005) (explaining that expert testimony and
other such evidence usually submitted in affidavit form at
summary judgment stage). Likewise, the superior courts
statements in its memorandum decision to strike the Hymeses
expert affidavits, which outline the formal requirements for
affidavits, did not adequately advise the Hymeses of the need to
submit affidavits outside of the specific context of medical
experts in malpractice cases.
40 Bruns, 32 P.3d at 371 n.46.
41 The Hymeses argue that exhaustion of remedies should be
excused for an additional reason: decision-maker bias. Because
Donalds assertions that he did not have access to the grievance
procedure and feared retaliation provide a genuine issue of
material fact that warrants reversal of summary judgment, we need
not address the Hymeses additional argument.
42 The Hymeses make no argument regarding the exclusion of
Dr. Days letter. Thus, we do not consider the admissibility of
Dr. Days letter. See Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska
2001) ([I]ssues not briefed or only cursorily briefed are
considered waived . . . .).
43 Alaska Civil Rule 76, entitled Form of Papers, deals
with such matters as paper size, fonts, line spacing, and the
like.
44 See Websters New World Dictionary of the American
Language 1220 (2d college ed. 1980).
45 Indeed, her discussion of the consequences of the
failure to provide Hymes with his prescription medicines would
assist the trier of fact to determine the degree of knowledge or
skill possessed or the degree of care ordinarily exercised under
the circumstances under AS 09.55.540(a)(1).
46 Although they do not address the issue in the argument
section of their brief, the Hymeses briefly reference the
superior courts decision not to appoint a Civil Rule 72.1 expert
advisory panel (EAP) in their issue statement. Because they fail
to make any substantive argument that the superior court erred by
failing to refer the case to an EAP, the Hymeses have waived the
issue. See Shearer, 36 P.3d at 1199.
47 See Shearer, 36 P.3d at 1199.
48 Gilbert v. Sperbeck, 126 P.3d 1057, 1061 (Alaska 2005).
49 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987); see
Gilbert, 126 P.3d at 1062.
50 604 P.2d 575 (Alaska 1979).
51 Id. at 577.
52 163 P.3d 956 (Alaska 2007).
53 Id. at 967 (quoting Jourdan v. Nationsbanc Mortgage
Corp., 42 P.3d 1072, 1082 (Alaska 2002)).
54 Id. (quoting Wasserman v. Bartholomew, 38 P.3d 1162,
1171 (Alaska 2002) (internal quotation omitted)).
55 The Hymeses also appear to allege that granting summary
judgment to Dr. DeRamus and Pomeroy violated their right to trial
by jury. However, we have held that the right to trial by jury
is not impinged by summary judgment that was properly granted.
See Christensen v. NCH Corp., 956 P.2d 468, 477 (Alaska 1998).
Because we hold that summary judgment was improper for a
different reason on the basis that genuine issues of material
fact remain as to whether Hymes failure to exhaust administrative
remedies was excused we need not reach the issue of the
constitutional right to a jury trial. See Alaska Trademark
Shellfish, LLC v. State, 91 P.3d 953, 957 (Alaska 2004) (stating
that appeals should ordinarily not be decided on constitutional
grounds when narrower grounds are available).
56 The Eighth Amendment provides that [e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted. U.S. Const. amend. VIII.
57 Brandon v. Corr. Corp. of America, 28 P.3d 269, 280
(Alaska 2001).
58 53 P.3d 1115 (Alaska 2002).
59 Id. at 1125.
60 Id.
61 See Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)
([I]ssues not briefed or only cursorily briefed are considered
waived.).
62 The superior court actually dismissed the claim on the
basis of Hymess failure to exhaust administrative remedies, but
we are not bound by the reasoning articulated by the superior
court and can affirm a grant of summary judgment on alternative
grounds, including grounds not advanced by the superior court or
the parties. Hoffman Constr. Co. of Alaska v. U.S. Fabrication &
Erection, Inc., 32 P.3d 346, 351 (Alaska 2001). Thus, we affirm
the grant of summary judgment as to the elder abuse claim because
the Hymeses have waived their argument, and even had they not
waived it, the elder abuse statutes do not create a private right
of action.
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