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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Roderer v. Dash (7/2/2010) sp-6488
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
| GRANT T. RODERER, M.D. and | ) |
| ADVANCED PAIN CENTERS OF | ) |
| ALASKA, INC., | ) |
| ) Supreme Court No. S- 13106 | |
| Appellants, | ) |
| ) Superior Court No. 3AN-04- 13294 CI | |
| v. | ) |
| ) O P I N I O N | |
| DEBORAH DASH, | ) |
| ) No. 6488 July 2, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Matthew K. Peterson and Linda
Johnson, Clapp, Peterson, Van Flein,
Tiemessen & Thorsness, Anchorage, and Sanford
M. Gibbs, Brown, Waller & Gibbs, P.C.,
Anchorage, for Appellants. George M.
Kapolchok, Kapolchok Law Offices, Anchorage,
and Cheryl Mandala and Matthew Singer,
Jermain Dunnagan & Owens, P.C., Anchorage,
for Appellee.
Before: Carpeneti, Chief Justice, Winfree,
and Christen, Justices. [Fabe and Eastaugh,
Justices, not participating.]
CHRISTEN, Justice.
I. INTRODUCTION
Deborah Dash brought a medical malpractice claim
against Dr. Grant Roderer based on a procedure he performed to
relieve her back pain. A jury awarded Dash roughly $1.4 million
in compensatory damages. The superior court awarded Dash costs
under Alaska Civil Rule 79 and attorneys fees under Alaska Civil
Rule 68. Dr. Roderer appeals from the denial of his motions to
dismiss, for judgment notwithstanding the verdict, and for a new
trial. He also appeals the order awarding fees and costs. We
affirm the superior courts denial of these motions and the courts
award of costs, and conclude that the courts fee award was
invited error.
II. FACTS AND PROCEEDINGS
A. Dashs Pain And Treatment
Dash began experiencing pain in her back, right hip,
knee, and foot in early 2001. She managed her pain using a
combination of over-the-counter drugs and Vicodin.
Dash first saw Dr. Roderer, of Advanced Pain Centers of
Alaska (APCA), in August of 2002. Dr. Roderers first treatment
of Dash involved injecting steroids into her spine. These
treatments began in August 2002 and continued for several months,
but did not provide sufficient relief. Dr. Roderer then
performed a discogram1 an invasive diagnostic procedure on
October 22, 2002. The procedure revealed problems with three of
Dashs discs. Dr. Roderer and Dash discussed the results of the
discogram and the possibility of Intradiscal ElectroThermal
Therapy (IDET) as a treatment. Dash agreed to undergo the IDET
procedure and Dr. Roderer performed it at Providence Hospital on
three of Dashs spinal discs. The IDET procedure involves
insertion of a small, wire-like heating element into a disc. The
element is then heated to roughly 194 degrees Fahrenheit. Dash
testified that she was unconscious during the procedure except
for a brief period when she was roused by insane pain. The
procedure left Dash initially unable to walk. Roughly two weeks
after the procedure, Dashs medication was no longer sufficient to
manage her pain and her husband persuaded Dr. Roderers office to
prescribe an alternative apparently OxyContin. About a month
after the procedure, Dash successfully transitioned from using a
wheelchair to using a walker.
Dash was evaluated by Dr. Onorato, a neurologist, on
March 7, 2003. Dr. Onorato had been treating Dash for migraines
and another nerve condition for several years. Dr. Onorato
diagnosed nerve damage at L5-S1 that affected Dashs ability to
use her left leg.2
Dash moved to Idaho in March of 2003. At that point
she began receiving treatment through the Idaho Pain Center.
B. The Dashes File Suit
Dash and her husband, David Dash, filed suit against
Dr. Roderer and APCA on December 14, 2004.3 They alleged that
the IDET caused nerve damage which led to increased pain,
decreased mobility, and decreased quality of life for Dash. They
alleged that Dr. Roderer failed to exercise the degree of skill
and care necessary to perform the IDET properly, and failed to
obtain Dashs informed consent to the procedure. They also
alleged that David Dash suffered damages from loss of society and
loss of consortium.
C. The Dashes Offer Of Judgment
On July 28, 2006 the Dashes conveyed a settlement offer
pursuant to Rule 68. The document offered to allow judgment to
be entered against defendants Grant T. Roderer, M.D., and
Advanced Pain Centers of Alaska, Inc., in the amount of
$450,000.00 inclusive of costs, pre-judgment interest, and
attorney fees, in complete satisfaction of plaintiffs claims.
The document was signed by the Dashes attorneys secretary for and
with permission of the attorney. The offer was not accepted.
In October 2006 counsel for the Dashes and Dr. Roderer
stipulated to dismiss David Dash as a party to the case. This
stipulation was approved by the superior court in November 2006.
D. Expert Report Issue
Dr. Roderer moved to dismiss the plaintiffs complaint
on October 27, 2006 because Dash had failed to file an expert
report by the courts August 10, 2006 pre-trial deadline. Dashs
attorney filed an opposition, along with a working draft of the
report of Dashs expert, Dr. Eric Boyd. Dr. Roderer replied to
Dashs opposition with a Notice of Continuing Non-Compliance and
Request for Ruling in which he questioned the authenticity of the
working draft. In response, Dashs attorney explained that he,
not Dr. Boyd, had authored the working draft, and asked the
court for a continuance so that an adequate expert report could
be obtained. The superior court granted the continuance and
denied the motion to dismiss but ordered that Dash pay Dr.
Roderers attorneys fees incurred because of the delay. The court
also ordered that Dashs attorney pay a $2,500 sanction, that no
further continuances would be allowed, and that failure to abide
by the courts order would result in dismissal of the action. A
final version of Dashs expert report was later produced.
E. Trial And Verdict
Trial was held before a jury beginning June 25, 2007.
The jury heard testimony from medical experts for both parties.
Dr. Roderer moved for a directed verdict at the close of
evidence, arguing that there was not sufficient evidence to
support a finding that Dash suffered a severe permanent
impairment. The motion was denied as to the alleged injury at L5-
S1 but granted as to injuries at other locations.4
The jury found that Dr. Roderer was negligent in
treating Dash, that he failed to get her informed consent before
performing the IDET procedure, that these failings were legal
causes of harm to Dash, and that Dash suffers from one or more
severe permanent physical impairments. The jury awarded Dash
$1,404,618 in compensatory damages for past and future economic
and non-economic losses.
Dr. Roderer moved for relief from the verdict under
three alternative theories: (1) judgment notwithstanding the
verdict, based on the argument that the preparation of Dashs
expert report violated the civil rules and warranted dismissal;
(2) a new trial, either on the merits or limited to damages,
based on the argument that Dash had not introduced sufficient
evidence and the jurys award was a product of passion and/or
prejudice; and (3) remittitur, based on the argument that the
jurys award of damages was not adequately supported by the
evidence. All of these motions were denied.
F. Award Of Attorneys Fees
On July 9, 2007 Dash filed a motion for entry of final
judgment to include prejudgment interest and attorneys fees.
Because the amount the jury awarded was greater than the Rule 68
settlement offer, Dash argued that she was entitled to an award
of fifty percent of her reasonable actual attorneys fees under
Rule 68. She measured her reasonable actual attorneys fees as
the amount she was obligated to pay under her attorneys
contingent fee agreement: forty percent of her total gross
recovery if the case went to trial. Dash requested an award of
attorneys fees in the amount of fifty percent of the amount of
fees owed under the contingency fee agreement, or $319,654.87.5
Dr. Roderer opposed the motion for fees. He argued
that the purported Rule 68 offer of judgment was invalid for
three reasons: (1) it was made to two defendants; (2) it was made
by two plaintiffs; and (3) it was signed by Dashs attorneys
secretary, not Dashs attorney. Dr. Roderer also demanded that
Dashs attorney submit an accounting of time and services
performed and his hourly rate to allow Dr. Roderer to challenge
time spent on improper projects, such as writing the working
draft of Dr. Boyds expert report.
In response, Dash argued that the settlement offer was
valid and that Rule 68 did not require an itemized billing record
in the circumstances of this case. Dash explained that her
actual fees will be 40% of the total gross recovery. These fees
are reasonable and in fact standard. Plaintiff lawyers do not
keep track of their time for billing purposes.
The superior court rejected Dr. Roderers arguments,
initially ordering him to pay fifty percent of the fees owed
under the contingency agreement. But Dr. Roderer argued that the
court should reduce the attorneys fee award to avoid compensating
Dash for work her attorney did before serving the offer of
judgment.6 Dr. Roderer argued that of the hours billed by his
attorney,` only seventy percent were incurred after the offer was
made and that unless Dashs attorney could show a different
pattern of work, Dashs attorneys fees should be reduced by at
least thirty percent. Dash agreed to that reduction and the
superior court awarded attorneys fees accordingly.
G. Award Of Costs
Dash moved for costs under Rule 79 and included an
itemized cost bill. Dr. Roderer opposed, arguing that the court
should strike the motion because it was not signed by Dashs
attorney. The opposition compared copies of the signature that
appeared on the request for costs against the signature that
appeared on an earlier affidavit of Dashs attorney. Though both
signatures are in Dashs attorneys name, the two signatures are
not similar. Dr. Roderer argued that Dashs attorney had not
personally signed the motion for costs, and that this posed two
problems: (1) Alaska Civil Rule 11 requires that pleadings,
motions and other papers filed on behalf of a represented party
must be signed by an attorney; and (2) Rule 79 requires that the
request for costs must be itemized and verified, imposing an
independent requirement that Dashs attorney personally review and
sign the motion. Dr. Roderer also questioned certain entries in
the bill, asked that Dash be required to produce receipts, and
requested that the charges be reviewed by the clerk of court.
The superior court did not strike the motion for costs,
referring it instead to the clerk for determination. The court
denied Dr. Roderers motions for post-trial relief from the jurys
verdict and entered final judgment. Dr. Roderer appeals.
III. STANDARD OF REVIEW
We review a trial courts imposition of discovery
sanctions for abuse of discretion.7 When reviewing a denial of a
motion for judgment notwithstanding the verdict, we review the
record in a light most favorable to [sustaining the verdict], and
reverse only if reasonable and fair-minded persons would
invariably have found other than the jury found.8
When reviewing an order denying a motion for a new
trial, we will affirm if there is an evidentiary basis for the
jurys decision,9 and will only reverse if the evidence supporting
the verdict was so completely lacking or slight and unconvincing
as to make the verdict plainly unreasonable and unjust.10
We review awards of attorneys fees for abuse of
discretion and will reverse if the award is arbitrary,
capricious, manifestly unreasonable, or improperly motivated.11
We review the interpretation of the civil rules authorizing fee
awards de novo.12
IV. DISCUSSION
A. The Superior Courts Refusal To Dismiss Dashs Case As A
Discovery Sanction Was Not An Abuse Of Discretion.
Dr. Roderer argues that the superior court erred by
denying his pre-trial motion to dismiss. Dr. Roderer argued that
Dashs complaint should have been dismissed when her attorney
authored the working draft of her experts report and filed it
with the court.13 We conclude the superior court did not err when
it denied Dr. Roderers motion to dismiss.
Dr. Roderer moved for dismissal because Dash failed to
timely file an expert witness report. To avoid dismissal, Dash
filed a working draft of Dashs expert witnesss report. The
document was unsigned and it was on blank paper rather than
letterhead. The pleading that accompanied it did not disclose
that the working draft was the work product of Dashs counsel. It
stated: The report . . . is not signed by Dr. Boyd, but this is
being accomplished. Upon learning that Dashs attorney authored
the document, Dr. Roderer argued that Dashs case should be
dismissed with prejudice. The superior court determined that Dr.
Roderers motion to dismiss was in fact a motion for summary
judgment, denied the motion, granted a continuance of the trial
date, and sanctioned Dashs attorney. The superior court
explained that:
[e]ffectively, this [m]otion to [d]ismiss is
really a motion for litigation-ending
sanctions for violation of this courts
discovery orders; namely, the deadline for
filing expert reports. Alaska Civil Rule
37(b)(3)(E) provides that if a party
willfully violates a court order to provide
discovery, the court may dismiss a claim or
defense.
Citing the preference for addressing the merits of a case, the
court declined to impose litigation-ending sanctions, but did
impose significant sanctions. The court ordered Dash to pay Dr.
Roderer all costs associated with the continuance, sanctioned
Dashs attorney $2,500, and warned that further failure to comply
with the courts discovery orders would result in dismissal of
this case.
A superior courts imposition of sanctions under Alaska
Rule of Civil Procedure 37(b) for a partys failure to comply with
a discovery order is . . . reviewed for abuse of discretion.14 A
decision constitutes abuse of discretion if it is arbitrary,
capricious, manifestly unreasonable, or . . . stems from an
improper motive.15
We have explained that the sanction of dismissal is
only allowed in extreme cases because a party should not be
barred from his or her day in court where an alternative remedy
would suffice to make the adverse party whole.16 In other cases
we have closely scrutinized the imposition of litigation-ending
sanctions,17 explaining:
Because of the extreme nature of dismissal .
. . before a case is dismissed the trial
court must first find (1) that the
non-complying party acted willfully to
violate the order in question, (2) that there
is resulting prejudice to the opposing party,
and (3) that the imposed dismissal is
sufficiently related to the violation at
issue. In addition, the court must consider
a reasonable exploration of alternatives to
dismissal and whether those alternatives
would adequately protect the opposing party
as well as deter other discovery
violations.[18]
The superior court took the situation seriously, recognizing that
[t]his is a case where litigation-ending sanctions may be
appropriate, but because the court was able to devise alternative
sanctions that would alleviate . . . the monetary prejudice to
the defendants, the court concluded that significant sanctions,
short of litigation-ending sanctions, are warranted here.
It is well settled that the superior court has wide
discretion in imposing sanctions for violation of its discovery
orders.19 In this case, it is not clear that dismissal was
required to adequately protect the opposing party as well as
deter other discovery violations,20 and we do not otherwise find
the superior courts decision arbitrary, capricious, or manifestly
unreasonable. The superior courts decision was a conscious,
measured response to the discovery violation. We do not believe
the superior court abused its discretion when it sanctioned Dashs
attorney and denied Dr. Roderers motion to dismiss.
After the verdict, Dr. Roderer sought judgment
notwithstanding the verdict on the same basis as his earlier
motion to dismiss Dashs failure to file a timely expert witness
report and the working draft filed with the court. The motion
for judgment notwithstanding the verdict expanded on this
argument with information acquired from the expert in discovery.21
For the reasons already discussed, we find that the superior
courts denial of this motion was not an abuse of its discretion
and we decline to overturn it.
B. Dr. Roderer Is Not Entitled To Judgment Notwithstanding
The Verdict.
Dr. Roderer argues on appeal that the jurys verdict
cannot stand because Dash failed to present sufficient evidence
to allow the jury to find all of the elements of Dashs negligence
claim. Dr. Roderer made two motions for a directed verdict
during trial, but neither was on this ground.
Alaska Civil Rule 50(b) provides that judgment
notwithstanding the verdict may be entered only in accordance
with [a previously entered] motion for a directed verdict. Dr.
Roderers first motion for directed verdict was made before the
close of evidence, and the superior court reserved judgment on
it. The second, made after the close of evidence, made two
arguments: (1) Dash did not present sufficient evidence to
support a finding of severe permanent physical impairment; and
(2) Dash did not present evidence to support an argument that the
procedure Dr. Roderer performed injured Dash in locations other
than L5-S1.22 Dr. Roderer did not seek a directed verdict on the
ground that Dash had not presented sufficient expert witness
testimony to support jury findings on standard of care, breach,
or causation.
We have explained that [w]here a party fails to move
for a directed verdict at the close of the evidence, a superior
courts refusal to grant a judgment n.o.v. cannot be considered on
appeal.23 Dr. Roderers failure to move for a directed verdict on
the grounds he now asserts would have precluded him from moving
for judgment notwithstanding the verdict on those grounds before
the superior court. His failure to make this argument in the
trial court precludes him from making it on appeal.
C. Dr. Roderer Is Not Entitled To A New Trial.
Dr. Roderer argues that the superior court should have
granted his post-verdict motion for a new trial. In this motion,
Dr. Roderer argued that: (1) a jury instruction wrongly created
an irrefutable presumption of a breach of duty; and (2) Dash
failed to present sufficient expert testimony to sustain a
verdict on negligence. Dash argues that the jury instruction
challenge is waived, that the challenge itself is without merit,
and that the jurys finding on informed consent renders moot the
claim that there was insufficient evidence to support the
negligence claim.24 We agree with Dash on each of these points.
1. The jury instructions do not support Dr. Roderers
request for a new trial.
Dr. Roderer argues that the jurys verdict should be
vacated because jury instruction 25.1 probably led the jury to
believe that Dr. Roderers inability to produce Dashs consent form
or additional photographs documenting the IDET procedure was
sufficient grounds for imposing liability on Dr. Roderer. Dash
argues that Dr. Roderer waived this argument by failing to
articulate it distinctly before the instructions were given. We
agree that the objection was waived, but also consider the merits
of the argument and find that giving the instruction was not
reversible error.
i. The objection Dr. Roderer raises on appeal
was not raised at trial.
Alaska Civil Rule 51(a) bars a party from arguing on
appeal that a jury instruction was improper unless the party
objects thereto before the jury retires . . . stating distinctly
the matter to which the party objects and the grounds of the
objection. We have explained that the rule is intended to ensure
that a trial judge is clearly made aware of the precise nature of
the alleged error,25 and we have interpreted this rule to require
a relatively specific articulation, before the trial court, of
the same argument raised on appeal.
In Van Huff v. Sohio Alaska Petroleum Co., an employee
suing for wrongful termination objected to an instruction that
would have immunized the employer if the termination was for a
legitimate business purpose.26 The employee argued at trial that
the instruction should explain that the business purpose had to
be reasonable; but on appeal, the employee argued that the
instruction should have defined legitimate business purpose.27 We
declined to consider this argument on appeal, finding it to be
entirely different from that raised at trial.28 Similarly, in
Hout v. NANA Commercial Catering, a plaintiff alleging employment
discrimination objected to jury instructions on the grounds that
they placed too heavy a burden on the plaintiff.29 On appeal,
Hout argued that the instructions were flawed because they were
not based on the principles advanced by the United States Supreme
Court in McDonnell Douglas Corp. v. Green,30 a federal employment
discrimination case articulating the burden-shifting rules now
commonly applied in such cases.31 We held that this argument was
waived for failure to articulate it at trial:
The issue is not properly before this court
because Hout failed to submit to the trial
court instructions that were patterned after
the McDonnell Douglas decision and did not
object to the courts proposed instructions on
this ground. She objected generally to the
instructions, saying they placed on her a
heavy burden, but she did not distinctly
state the grounds of her objection or suggest
corrective language consistent with McDonnell
Douglas principles.[32]
Dash offered jury instruction 25.1, and Dr. Roderer
objected to it. But the circumstances of Dr. Roderers objections
to jury instruction 25.1 are similar to those in Hout. As it was
initially proposed, jury instruction 25.1 contained two
paragraphs. The first read: A physician is required to make and
keep records of his patients treatment. The second paragraph
referred to a specific record Dr. Roderer had not produced.
Dr. Roderers counsel objected to identifying the specific record,
calling it argumentative. The superior court removed the second
paragraph and asked Dr. Roderer if he objected to the remaining
sentence, A physician is required to make and keep records of his
patients treatment. Dr. Roderers counsel responded:
Well, Id still object to that because its not
theres not a factual issue for them to decide
relating to that one way or the other, and so
I would object to that in its entirety but
its I think its substantially [im]proved by
taking out that second paragraph but I just
for the record, I object to the whole
instruction.
The court gave the single-sentence instruction to the jury.
On appeal, Dr. Roderer contends that this instruction
may have caused the jury to believe that Dr. Roderer could be
held liable for failure to obtain informed consent on the basis
of the record missing from Dashs patient file. But this argument
was not specifically raised before the superior court. Had it
been, the superior court could have evaluated whether to add
further instructions to clarify that liability for failure to
obtain informed consent requires more than proof that Dr. Roderer
failed to keep his records properly. As it is, in accordance
with the standard for waiver applied in Hout and Van Huff, we
find this argument waived.
ii. Giving jury instruction 25.1 was not plain
error.
Absent a specific objection at trial that complies with
Rule 51(a), we will not review [a] jury instruction unless the
giving of the challenged instruction was plain error. Plain
error will be found when an obvious mistake exists such that the
jury instruction creates a high likelihood that the jury will
follow an erroneous theory resulting in a miscarriage of justice.33
Dr. Roderer argues that jury instruction 25.1, while generally a
correct statement of the law, was incorrect in this instance and
should not have been given because it may have led the jury to
apply an erroneous theory of liability. Specifically, he argues
that the jury might have concluded that Dr. Roderer should be
found liable for Dashs injuries because some of Dashs medical
records were missing from her file. Dr. Roderer asserts that the
instruction may have led the jury to believe that the mere fact
that some of Dashs medical records were missing, by itself,
established that he was negligent or had not obtained informed
consent. There was no argument presented at trial along the
lines Dr. Roderer suggests.34
The special verdict form required that the jury
separately determine whether Dr. Roderer (1) was negligent, (2)
failed to obtain Dashs informed consent, and, if so, whether each
failure was a legal cause of harm to Dash. The jury answered yes
to each of these questions. A review of the jury instructions
explaining negligence and informed consent refutes Dr. Roderers
argument. The only instruction purporting to define negligence,
instruction 11, defined negligence as the failure to meet the
standard of care; it explained that the jury must determine the
standard of care only on the basis of [the] opinions offered by
[the doctors] who have testified as expert witnesses on the
standard of care. Thus, the jury had no basis to conclude that
the failure to keep adequate records, without more, constituted
negligence.
Even if the jury did find that Dr. Roderers failure to
keep records breached his duty of care, they were instructed that
to impose liability based on negligence they had to also find
that the negligence was a legal cause of the harm Dash suffered.
Dr. Roderer has not suggested how the conclusion that the failure
to keep adequate records constituted negligence was reasonably
possible under the facts of this case, and it is improbable that
the jury imposed liability on this basis.
It is also unlikely that the instruction affected the
jurys finding on informed consent. Dr. Roderers concern seems to
be that the jury might have used instruction 25.1 as a basis from
which to infer that Dr. Roderers failure to produce a record of
informed consent meant that he failed to obtain informed consent.
But the jury had strong evidence before them supporting
plaintiffs informed consent claim. The jury heard the Dashes
testify about what they were and were not told about the risks of
the procedure and their testimony amply supports the jurys
finding that Dash did not give informed consent. For example,
Dash testified that Dr. Roderer claimed to have performed
hundreds of IDETs but he later admitted that Dashs procedure may
have been the first three-level IDET he had ever performed. Dash
also testified she was never told that the procedure might result
in nerve damage. Dr. Roderer testified that he typically obtains
a written acknowledgment of informed consent, that he did so
here, that he typically sends a copy to Providence Hospital when
the procedure will be performed there, but that he could not
locate a copy of the consent form he asserts Dash signed before
undergoing the IDET. Considering this evidence, we do not find
merit in Dr. Roderers contention that jury instruction 25.1
created a high likelihood that the jury followed an erroneous
theory. We conclude that giving jury instruction 25.1 was not
plain error.
2. The jurys finding on informed consent renders moot
any failure of evidence on the negligence claim.
Dr. Roderer argues that Dashs expert testimony was not
sufficient to allow the jury to find each of the elements of
negligence. Dash counters that even if the expert testimony was
insufficient to support the jurys finding that Dr. Roderer
negligently performed the IDET procedure, the jurys finding that
Dr. Roderer failed to obtain Dashs informed consent is sufficient
to sustain the jurys award. We agree with Dash. The informed
consent finding was not challenged by Dr. Roderer on appeal and
it independently supports the jurys liability finding. For this
reason, we do not reach Dr. Roderers argument regarding the
sufficiency of the evidence supporting the negligence claim.
D. The Rule 68 Offer Was Valid And The Method Used To
Calculate Fees Was Invited Error.
Dr. Roderer argues that the award of attorneys fees
under Rule 68 should be vacated for three reasons: (1) Rule 68
was not applicable because Dashs settlement offer was not signed
by Dashs attorney; (2) the offer did not trigger Rule 68 because
it was not inclusive of [all] the relationships of the parties
and presented apportionment problems; and (3) the award amount
was improperly calculated because the superior court relied upon
Dashs contingency fee agreement and did not require itemization
of the hours her attorney worked. We conclude that the Rule 68
offer was valid. Though the method used to calculate attorneys
fees was incorrect, we conclude that the erroneous calculation
was invited error. We affirm the award of attorneys fees.
1. The Dashes attorney was not required to sign the
offer.
Dr. Roderer argues that the Dashes offer of judgment
did not trigger Rule 68 because it was signed by the Dashes
attorneys secretary for and with permission of the attorney,
rather than by the attorney himself. The superior court agreed
that Rule 11s signature requirement applied to the offer of
judgment, but concluded that it was within the discretion of the
court to strike the [o]ffer of [j]udgment, and declined to do so.
We conclude that the offer of judgment did not violate Rule 11.
In pertinent part, Rule 11 states:
Every pleading, motion and other paper
of a party represented by an attorney
shall be signed by at least one attorney
of record in the attorneys individual
name . . . . The signature of an
attorney or party constitutes a
certificate by the signer that the
signer has read the pleading, motion, or
other paper; that to the best of the
signers knowledge, information, and
belief formed after reasonable inquiry
it is well grounded in fact and is
warranted by existing law or a good
faith argument for the extension,
modification, or reversal of existing
law, and that it is not interposed for
any improper purpose, such as to harass
or to cause unnecessary delay or
needless expense in the cost of
litigation. If a pleading, motion, or
other paper is not signed, it shall be
stricken unless it is signed promptly
after the omission is called to the
attention of the pleader or movant.[35]
Dr. Roderer cites no authority to support his contention that a
Rule 68 offer of judgment is subject to Rule 11s signature
requirement, and we have never addressed this issue. The Dashes
Rule 68 offer of judgment was addressed to and served on Dr.
Roderers attorney, as is typical when issuing such offers.
Offers of judgment are filed with the court only upon acceptance
or, if rejected, in conjunction with post-trial motions for fees.
Here, the offer of judgment was submitted to the court as an
attachment to Dashs July 9, 2007 Motion for Entry of Final
Judgment, Award of Prejudgment Interest, and Award of Attorney
Fees. The motion was signed by counsel. This filing satisfied
the requirements of Rule 11.
2. The multiplicity of parties and claims did not
prevent the offer from triggering Rule 68.
Dr. Roderer argues that the Dashes offer did not
trigger Rule 68 because it was not inclusive of the relationships
of the parties and presented apportionment problems. Dr. Roderer
argues: (1) because David Dash had an independent claim that was
distinct and separate from Deborah Dashs claim, the offer of
judgment did not meet the test for joint offers set by this court
in Johns Heating Service v. Lamb; and (2) because there were two
separate and distinct claims brought against Dr. Roderer and
Advanced Pain Centers, apportionment would have been difficult.
The test for whether a multi-party offer of settlement
triggers Rule 68 is described in Johns Heating Service v. Lamb.36
In that case, we held that an offer will trigger the rule if:
(1) the offer was inclusive of all the relationships among the
parties and their conflicting claims, which means that the
settlement offer clearly indicated all claims between the parties
would be resolved if the offer were accepted and (2) no
apportionment difficulty existed.37 The superior court addressed
Dr. Roderers claim that the Johns Heating test was not met,
rejecting it with little explanation. The question whether a
settlement offer triggers Rule 68 is a legal one that this court
reviews de novo.38
The Dashes offered to accept a certain sum of money in
complete satisfaction of plaintiffs claims. This language
clearly indicated that if the offer was accepted, all claims
between the parties would be resolved.39 The claims against APCA
were based solely on respondeat superior. We have not addressed
this particular application of respondeat superior before, but we
do not find that it presents an apportionment problem given the
facts of this case.40 None of the parties ever contended that
APCA was exposed to liability for any reason other than via the
doctrine of respondeat superior. We have consistently held that
settlement offers do not trigger Rule 68 if they would leave
unresolved serious disputes that, absent settlement, would have
to be resolved by a jury,41 but we conclude under the
circumstances of this case that the Dashes offer did not present
an apportionment problem.
3. The superior courts calculation of Rule 68 fees
was invited error.
Dr. Roderer argues that the superior court erred when
it calculated Dashs attorneys fee award. Rule 68 authorizes
trial courts to award a percentage of a partys reasonable actual
attorneys fees incurred by the offeror [of an offer of judgment]
from the date the offer was made . . . .42 Dashs attorney
represented her pursuant to a written fee agreement that called
for forty percent of Dashs total gross recovery.43 The court
accepted the amount of fees Dash owed her attorney under their
contingent fee agreement as her total reasonable, actual fees and
used defense counsels hourly time records to approximate the fees
she incurred after the date of the Rule 68 offer of judgment.
Dr. Roderer argued that fees under Rule 68 cannot be based on a
contingency fee and requested that Dashs attorney provide
itemized bills.
In Marron v. Stromstad, we addressed a request for
itemization in conjunction with a Rule 68 motion for fees and
held that, where the rule authorizes reasonable actual fees, a
court may not award attorneys fees to a party who has not
itemized his or her requested fees, when the opposing party has
requested such itemization.44 Dashs counsel did not keep track of
the hours he actually worked on the case, but the superior court
accepted the contingency fee award as a measure of plaintiffs
reasonable, actual fees. Dr. Roderers counsel then argued that
even if itemized bills could not be produced, Dr. Roderer should
only be responsible for the portion of the contingency fee
reflecting work performed after the July 28, 2006 offer of
judgment. Dr. Roderers counsel argued to the superior court
that:
[Dashs] attorney did not keep track of his
time, which is why [Dash] does not want to
provide her attorneys actual time spent. [Dr.
Roderers] attorney did keep track of his
time, and believes that it is a reasonable
estimate of fees in this instance. . . .
[R]oughly 30% of [Dr. Roderers attorneys]
time on the case was prior to the offer of
judgment, and 70% after offer through trial .
. . . [A]t a minimum, [Dr. Roderer] should
only be responsible for . . . 70% of one half
of the contingency fee . . . .
As we acknowledged in Marron, a superior court may not award
attorneys fees based only on an estimate of what fee amount [is]
reasonable.45 Though we have never suggested that Rule 68 is
limited to cases where the fee-seeking party is obliged to pay
his or her attorney by the hour,46 the percentage of total hours
worked by Dr. Roderers attorney after July 28, 2006 cannot be
described as Dashs counsels reasonable, actual fees during the
same time period. The superior courts reliance on Dr. Roderers
attorneys time records to measure the number of hours Dashs
counsel worked was error. But this method of calculation was
suggested by Dr. Roderer. Invited error occurs when the court
takes erroneous action at the express request of [a party], and
then [that party] urges reversal on that basis on appeal.47 When
an error is invited, an appellate court examines the error to see
if there is an exceptional situation where reversal is necessary
to preserve the integrity of the judicial process or to prevent a
miscarriage of justice.48 In our view, the facts of this case do
not rise to this level. The integrity of the judicial process
was not threatened by the superior courts use of Dr. Roderers
proposed estimate of attorneys fees where Dr. Roderer agreed that
this was reasonable and the court had no basis to conclude
otherwise. Though the trial court erred by adopting this method
of calculating Dashs fees, reversal of the award of attorneys
fees is not necessary under the doctrine of invited error. We
therefore affirm the superior courts award of fees.
E. The Award Of Costs Was Proper.
Dr. Roderer argues that the superior court should have
struck Dashs request for costs because it was not signed by Dashs
attorney. The request for costs was signed in Dashs attorneys
name, but Dr. Roderer argued and the superior court agreed that
the signature did not resemble the one typically used by Dashs
attorney. Dashs attorney filed an affidavit asserting that the
signature was his own and the superior court refused to strike
the request for costs. The court noted that (1) Dashs attorney
stated that the signature was his own in an affidavit, and (2)
the remedy for an unsigned document under Rule 11 would be to
require the attorney to sign the pleading. The superior court
ordered that in this case (and in other cases in which [the
attorney] is before this judge) [the attorney] use only one
signature for all documents he signs and files with the court,
and it should be the one that is filed with the Complaint or
Answer.
We review a superior courts refusal to strike a
pleading under Rule 11 for abuse of discretion. Because the
attorney affirmed, in a signed affidavit, that the signature on
the contested document was his own, we find that the superior
court did not abuse its discretion by failing to strike the
pleading. We find no error in the trial courts award of costs.
V. CONCLUSION
We AFFIRM the superior courts denial of Dr. Roderers
motions to dismiss, for judgment notwithstanding the verdict, and
for a new trial. We also AFFIRM the courts award of fees and
costs.
_______________________________
1 At trial, the terms discogram and discography were used
interchangeably.
2 L5-S1 designates a particular disc in the spinal
column. The IDET procedure Dr. Roderer performed on Dash
involved treatment of three discs; one of them was the L5-S1
disc.
3 Dashs claims against APCA were asserted only via the
doctrine of respondeat superior; the parties treated the two
defendants as a single entity for purposes of this case. This
opinion refers to the defendants as Dr. Roderer for simplicity.
4 Dr. Roderer also argued that there was no evidence the
IDET procedure injured Dashs spine at locations other than L5-S1.
This part of the motion was not opposed. Dashs theory at trial
was that the L5-S1 injury caused all of the loss for which she
sought compensation.
5 Dashs attorney calculated that the jurys award of
damages plus interest totalled $1,598,274.35. 40% of this total
is $639,309.72.
6 Rule 68 only authorizes enhanced attorneys fee awards
for fees incurred after an offer of judgment is made. Alaska R.
Civ. P. 68(b).
7 Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989).
8 Poulin v. Zartman, 542 P.2d 251, 273 (Alaska 1975)
(citing City of Fairbanks v. Nesbett, 432 P.2d 607, 609-10
(Alaska 1967)), overruled on other grounds by State v. Alex, 646
P.2d 203, 208 n.4 (Alaska 1982).
9 Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352
(Alaska 2006) (quoting Glamann v. Kirk, 29 P.3d 255, 259 (Alaska
2001)) (internal quotation marks omitted).
10 Id.
11 Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008)
(quoting Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001))
(internal quotation marks omitted).
12 Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005)
(citing Glamann, 29 P.3d at 259).
13 Roughly one month after Dr. Roderers motion to dismiss
was converted into a motion for summary judgment and denied, Dr.
Roderer filed a Notice of Withdrawal of Defendants Summary
Judgment Without Prejudice. Dash argues that Dr. Roderer waived
his argument regarding the expert witness report because he
withdrew his motion for summary judgment and failed to renew it.
But the court denied the summary judgment motion on February 7,
2007; the notice of withdrawal was therefore without effect.
Further, Dr. Roderer renewed the underlying argument in his
motion for judgment notwithstanding the verdict. The superior
court addressed the claim on the merits, holding that it was
appropriate both then and now to have denied dismissal of the
case. Dr. Roderer did not waive this issue.
14 Lee v. State, 141 P.3d 342, 347 (Alaska 2006) (citing
DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 922 (Alaska
2002)).
15 Shea v. State, Dept of Admin., Div. of Ret. and
Benefits, 204 P.3d 1023, 1026 (Alaska 2009) (quoting Dobrova v.
State, Dept of Revenue, Child Support Servs. Div., 171 P.3d 152,
156 (Alaska 2007)).
16 DeNardo, 51 P.3d at 922 (quoting Hughes v. Bobich, 875
P.2d 749, 752 (Alaska 1994)) (internal quotation marks omitted).
17 See, e.g., id. at 922-27.
18 Id. at 922-23 (citing Alaska R. Civ. P. 37(b)(3);
Hughes, 875 P.2d at 753).
19 Lee, 141 P.3d at 349 (explaining that Alaska Civil Rule
37(b) gives judges broad discretion to enforce discovery orders
through sanctions. (citing DeNardo, 51 P.3d at 922).
20 DeNardo, 51 P.3d at 923.
21 In his deposition, Dr. Boyd confirmed that he had not
been aware of the need for an expert report at the time the
working draft was filed with the court, and that he first began
work on his report shortly before its submission in March of
2007.
22 See supra note 4.
23 Richey v. Oen, 824 P.2d 1371, 1374 (Alaska 1992)
(citing Metcalf v. Wilbur, Inc., 645 P.2d 163, 170 (Alaska
1982)).
24 Dash had two independent theories of liability: lack of
informed consent and negligent performance of the procedure
itself. She argues that either theory is adequate to support the
jurys award.
25 Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1223
(Alaska 1975) (quoted with approval in Van Huff v. Sohio Alaska
Petroleum Co., 835 P.2d 1181, 1186 (Alaska 1992)).
26 835 P.2d at 1186-87.
27 Id. at 1187.
28 Id.
29 638 P.2d 186, 189 (Alaska 1981).
30 Id.
31 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793-
807 (1973).
32 Hout, 638 P.2d at 189.
33 Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153
(Alaska 1992) (internal citations and footnote omitted).
34 Dr. Roderer claims that Dashs closing argument
contained such an implication, but we do not find the closing
argument troubling. Dashs counsel pointed out that certain
records of the drugs Dash was taking after the IDET were missing,
and then stated that the judge will instruct you that the doctor
has an absolute duty to make accurate records and to keep them.
Dashs counsel went on to argue that this failing was part of a
broader pattern of inconsistencies or lapses of memory that cast
serious doubt on the credibility and reliability of Dr. Roderers
testimony. We do not believe this argument suggested that the
missing record, alone, established liability or negligence.
35 Alaska R. Civ. P. 11.
36 46 P.3d 1024 (Alaska 2002).
37 Id. at 1042 & n.85 (quoting Taylor Constr. Servs., Inc.
v. URS Co., 758 P.2d 99, 102 (Alaska 1988)) (internal quotation
marks omitted).
38 See Sayer v. Bashaw, 214 P.3d 363, 364 (Alaska 2009)
(citing Mackie v. Chizmar, 965 P.2d 1202, 1204 (Alaska 1998)).
39 Johns Heating Serv., 46 P.3d at 1042 n.85 (quoting
Taylor, 758 P.2d at 102) (internal quotation marks omitted).
40 Both the jury instructions and the special verdict form
in this case explicitly directed that Dr. Roderer and APCA be
treated as a single entity. Cf. Pagenkopf v. Chatham Electric,
Inc., 165 P.3d 634, 641 n.28 (Alaska 2007) (employee and employer
treated as individual Rule 68 offeror where employers liability
premised entirely upon respondeat superior).
41 For example, in Pagenkopf, 165 P.3d at 640-44, the
settlement offer might have precluded any recovery from a third-
party defendant, who otherwise stood to be held liable separately
and apportioned a distinct percentage of the fault.
42 Alaska R. Civ. P. 68(b).
43 The agreement defines total gross recovery as the sum
of damages, interest on the damages, and any court-ordered awards
of attorneys fees. Awards of costs are excluded from total gross
recovery.
44 123 P.3d 992, 1014 (Alaska 2005).
45 Id. at 1013.
46 Cf. Froines v. Valdez Fisheries Dev. Assn, Inc., 175
P.3d 1234 (Alaska 2008) (affirming award of attorneys fees for
plaintiff represented under a contingent fee agreement could be
based on attorneys hourly rate and hours worked).
47 Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska App.
1989).
48 Parson v. State, Dept of Revenue, Alaska Hous. Fin.
Corp., 189 P.3d 1032, 1038 (Alaska 2008).
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