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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Patterson v. GEICO General Insurance Company (4/3/2015) sp-6994
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TOMMIE PATTERSON, )
) Supreme Court No. S-15265
Appellant, )
) Superior Court No. 3AN-11-12087 CI
v. )
) O P I N I O N
GEICO GENERAL INSURANCE )
COMPANY, ) No. 6994 - April 3, 2015
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock, Judge.
Appearances: Tommie Patterson, pro se, Anchorage,
Appellant. Kimberlee A. Colbo, Hughes Gorski Seedorf
Odsen & Tervooren, LLC, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
A driver injured in a hit-and-run accident sued his car insurance company,
claiming it had breached his insurance contract by failing to reasonably compensate him
for his injuries. He later moved to amend his complaint to include racketeering,
embezzlement, mail fraud, and bad faith claims, but the superior court denied the motion.
----------------------- Page 2-----------------------
A jury trial was held, and the jury returned a liability verdict that was smaller than the
insurance company's offer of judgment. The superior court ruled that the insurance
company was the prevailing party and awarded attorney's fees and costs. The driver
appeals the denial of his motion to amend, the awarding of attorney's fees and costs, and
several of the court's other procedural and evidentiary rulings. Because we see no abuse
of discretion in the court's rulings, we affirm the judgment.
II. FACTS AND PROCEEDINGS
Tommie Patterson was injured in a hit-and-run accident in December 2009.
The front driver's side door of Patterson's SUV was visibly damaged by the collision,
and Patterson complained of neck and shoulder pain to an examining physician. At the
time of the accident, Patterson held a GEICO General Insurance Company (GEICO)
automobile insurance policy that contained a provision for uninsured motorist coverage.
Patterson and GEICO disputed the severity of Patterson's injuries sustained
in the December accident. Patterson, initially represented by counsel, filed a complaint
against GEICO alleging breach of the insurance contract. He claimed that he had
"incurred medical expenses, travel expenses and general damages" for which "GEICO
has refused to offer . . . a reasonable amount." In its answer, GEICO admitted that
Patterson had a GEICO insurance policy, that he had reported a hit-and-run accident, and
that he "may be entitled to some uninsured motorist benefits under [his] coverage." But
GEICO also raised affirmative defenses, asserting that Patterson's "injuries . . . may be
the result of a pre-existing or subsequently occurring condition," and that Patterson "is
not entitled to recover medical expenses paid under his own Medical Payments
Coverage."
Patterson's attorney moved to withdraw for cause. The attorney explained:
[Patterson] has refused to take my advice regarding
resolution of this matter and I feel that I have done everything
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----------------------- Page 3-----------------------
I can to explain to him that even though he has [$1,000,000]
worth of coverage, he does not have a [$1,000,000] case and
I will not present that as an offer to settle.
Patterson consented to the attorney's withdrawal and notified the court that he intended
to proceed pro se. He acknowledged that disagreements with his attorney over the
available damages had led to the attorney's withdrawal.
GEICO moved for an order in limine to manage the case as a personal
injury dispute, to prevent both parties from presenting evidence or arguments about
Patterson's policy limits, and to notify Patterson that his medical records - including
his medical history from before and after the accident - might be admissible. The
superior court granted GEICO's motion.
Patterson then moved to amend his complaint to include new claims,
alleging racketeering, embezzlement, mail fraud, and bad faith. He claimed that GEICO
refused to honor its contract with him and was thereby committing " '[f]raud' by selling
insurance policies[] knowing very well that the policies were not going to be honored."
The court denied Patterson's motion to amend, finding it both untimely and futile. The
court concluded: "Mr. Patterson makes no evidentiary showing to justify a late-filed
[racketeering] claim. His pleadings reveal [a] lack of understanding about Geico's
contract obligations. Amendment would be futile[.]"
At a pretrial status hearing, the court advised Patterson that he was not
entitled to $1,000,000 for his injuries and suggested that he might be acting against his
own interests by taking the case to trial. Patterson replied that he was only asking for a
"fair" sum and that he was unwilling to settle for the amount GEICO had offered.
GEICO's counsel informed the court that Patterson's offers of judgment were for
$800,000 and $1,000,000, and he indicated that a jury trial remained necessary to resolve
the parties' dispute.
-3- 6994
----------------------- Page 4-----------------------
In December GEICO perpetuated the testimony of its expert witness, Dr.
Douglas Bald, by deposing him with Patterson present. Dr. Bald testified that, after
reviewing Patterson's medical records, he believed the accident had caused "very minor
muscular type injuries to [Patterson's] neck, upper back, [and] chest area" and that
Patterson "had effectively recovered from the injuries . . . as of approximately January
12, 2010, which would be a little over a month post-accident." Dr. Bald also opined that
many of Patterson's claimed injuries - most notably his lower back pain - were the
result of preexisting conditions.
Patterson objected to Dr. Bald's qualifications, and on cross-examination
he questioned Dr. Bald about four malpractice claims that had been filed against him
over the course of his career. Dr. Bald acknowledged that he had settled a single,
legitimate malpractice claim against him, but he testified that the remaining three claims
had been dismissed. Patterson also suggested that there might have been errors in the
medical records upon which Dr. Bald relied. Dr. Bald acknowledged that doctors
occasionally fail to note reported symptoms in medical records. But he also testified that
he had relied on multiple records and that December 2009 records consistently did not
include references to Patterson's claimed lower back pain.
Fifteen days before the trial was set to begin, Patterson moved to disqualify
the trial judge. Patterson argued that the judge was biased and prejudiced against him.
The superior court denied the motion to disqualify and the matter was assigned to
another superior court judge for review, as required by AS 22.20.020(c). The reviewing
court found no basis for Patterson's claims.
During the week before trial, the superior court ordered a pretrial
conference to determine whether Patterson was willing to follow the court's orders while
in the presence of the jury. The court was concerned about statements in Patterson's trial
brief asserting "a [F]irst [A]mendment right to speak and present all issues . . . on any
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----------------------- Page 5-----------------------
subject[] matter pertaining to Geico's embezzlement, fraud[], [and] refusal to honor [the]
insurance policy[] limits of their contract." At the hearing the court reiterated that the
case would be tried only as a personal injury dispute. The court also informed Patterson
that it would dismiss the suit unless Patterson unambiguously agreed to follow the
court's orders and limit his evidence and arguments to the only relevant issue: the
severity of Patterson's accident-related injuries. Patterson eventually agreed, and the
court ruled that his agreement was sufficient assurance to allow the trial to proceed.
The superior court held a jury trial. Patterson declined to testify, and chose
to rely exclusively on his evidentiary exhibits and the videotaped deposition of Dr. Bald.
During Patterson's opening statement, the court sustained multiple objections when
Patterson attempted to discuss facts outside his exhibits and Dr. Bald's deposition. And
when Patterson tried to tell the jury that there were subjects he had been instructed not
to discuss, the court ordered him to stop talking and sit down. During GEICO's opening
statement, Patterson objected when his prior medical history was mentioned, but the
court overruled this objection.
Patterson then introduced and played Dr. Bald's videotaped deposition,
which was edited to exclude portions the court had previously ruled inadmissible.
Following the playback of the deposition and out of the jury's presence, Patterson rested
his case, and GEICO moved for a directed verdict on Patterson's claim for future
noneconomic damages. GEICO argued that the evidence Patterson presented - his
medical records, which extended only through early 2010, and Dr. Bald's deposition
testimony - provided no factual basis for these damages. The court granted GEICO's
motion and noted that Patterson could have avoided this partial directed verdict by
testifying.
The jury then returned for closing arguments. During Patterson's closing
argument, the court sustained all seven of GEICO's objections - most of which were
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----------------------- Page 6-----------------------
for stating facts not in evidence - and ultimately ordered Patterson to end his argument
before his time had expired. During GEICO's closing argument, the court overruled
Patterson's objection that GEICO should not have been permitted to recommend a
specific pain and suffering award. And throughout Patterson's rebuttal argument, the
court sustained additional objections when Patterson expressed his disagreement with the
court's evidentiary rulings, mentioned his insurance policy's $1,000,000 coverage limit,
and suggested that the outcome of his case would personally affect the individual
members of the jury. After this final objection, the court again ordered Patterson to
"have a seat."
The jury deliberated for less than two hours before returning a verdict
finding GEICO liable for $5,000 in past noneconomic damages and $10,000 in past
medical expenses.
Patterson moved for a new trial and relief from judgment under Alaska
Civil Rules 59(d) and 60(b), alleging that his right to an impartial judge and jury had
been violated. The superior court denied Patterson's motion.
GEICO moved for a verdict reduction to reflect medical expenses already
paid on Patterson's behalf, for entry of final judgment and recognition as the prevailing
party, and for attorney's fees and costs under Alaska Civil Rule 68. The superior court
granted these motions. The court subtracted $5,000 from the jury's verdict to reflect
already-reimbursed medical expenses, added $1,386 for prejudgment interest, and
deducted $6,742 for GEICO's attorney's fees and $3,087.25 for GEICO's costs. The
court issued a final net judgment of $1,556.75 in favor of Patterson.
Patterson appeals.
-6- 6994
----------------------- Page 7-----------------------
III. STANDARD OF REVIEW
We review the denial of a motion to amend a pleading for abuse of
1
"It is within a trial court's discretion to deny such a motion where
discretion.
amendment would be futile because it advances a claim or defense that is legally
insufficient on its face. We use our independent judgment to review a conclusion that
an amendment meets that description."2
"We review the rejection of a motion to disqualify for abuse of discretion."3
We also review the superior court's application of the evidence rules - including the
4
court's sua sponte rulings - for abuse of discretion. But "[e]rror may not be predicated
upon a ruling which admits or excludes evidence unless a substantial right of the party
5 And unless the superior court committed plain error, we review evidentiary
is affected."
rulings only when a party preserves the issue through an objection or an offer of proof.6
"Constitutional issues are questions of law subject to independent review."7
We also independently review jury instructions and special verdict forms.8 But before
1 Krause v. Matanuska-Susitna Borough , 229 P.3d 168, 174 (Alaska 2010).
2 Id. at 174-75 (quoting Hallam v. Alaska Airlines, Inc. , 91 P.3d 279, 287
(Alaska 2004)) (internal quotation marks omitted).
3 Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002).
4 See Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996).
5 Alaska R. Evid. 103(a).
6 Alaska R. Evid. 103(a), (d).
7 Harrod v. State, Dep't of Revenue , 255 P.3d 991, 995 (Alaska 2011) (citing
Eagle v. State, Dep't of Revenue , 153 P.3d 976, 978 (Alaska 2007)).
8 Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (citing Cummins,
(continued...)
-7- 6994
----------------------- Page 8-----------------------
we will "overturn a jury instruction or special verdict form, we must conclude not only
that the instruction or special verdict form was legally erroneous, but also that the verdict
9
would probably have been different but for the error." "Questions concerning an offer
of judgment's meaning and whether the offer complies with Rule 68 raise issues of law,
which we review independently."10
IV. DISCUSSION
Patterson does not contest the jury's factual findings that he suffered $5,000
in past noneconomic damages and $10,000 in medical expenses. Instead, he claims that
the superior court abused its discretion and violated his constitutional rights by ruling
against him on various motions throughout the proceedings. We review each of
Patterson's arguments in turn.11
A. The Superior Court Did Not Abuse Its Discretion By Denying
Patterson's Motion To Amend His Complaint.
Patterson argues that the superior court should have allowed him to amend
his complaint to include racketeering, embezzlement, mail fraud, and bad faith claims.
8(...continued)
Inc. v. Nelson , 115 P.3d 536, 541 (Alaska 2005)).
9 Id. (citing Reich v. Cominco Alaska, Inc. , 56 P.3d 18, 25 (Alaska 2002)).
10 Jackman v. Jewel Lake Villa One , 170 P.3d 173, 177 (Alaska 2007).
11 In addition to the arguments discussed below, Patterson claims the superior
court abused its discretion by denying his motion for a new trial in light of his allegation
that several jurors lied during voir dire. But it was reasonable for the court to deny this
motion, because Patterson's jury misconduct allegation was conclusory and lacked
evidentiary support. Although Patterson presents this court with documents that he
claims reveal inaccuracies in several jurors' statements, the documents were never
presented to the superior court, have not been authenticated, and are not included in the
record. We therefore decline to consider them.
-8- 6994
----------------------- Page 9-----------------------
Patterson contends that the superior court, by denying his motion to amend, abused its
discretion under Alaska Civil Rule 15.
Under Rule 15, if a responsive pleading has been served and the action has
been set for trial, a party may amend his pleading "only by leave of court or by written
consent of the adverse party." But "leave shall be freely given when justice so
12
requires." In deciding whether the superior court has abused its discretion by denying
a motion to amend, we balance "the possible prejudice to [the nonmoving party] in
defending [the new] claims with the potential harm caused to [the moving party] if he is
13 We have recognized several reasons to uphold
precluded from litigating these issues."
such a denial, including "undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of the
amendment, etc."14 But even an unreasonable delay in moving to amend pleadings does
not justify denying the motion absent prejudice to the nonmoving party.15
Here the superior court gave two reasons for denying Patterson's motion
to amend his complaint: untimeliness and futility. The court noted that, at the time of
the motion, the trial was "set to occur in two months." The court also concluded that
Patterson made "no evidentiary showing to justify a late-filed [racketeering] claim. His
pleadings reveal [a] lack of understanding about Geico's contract obligations." At a
status hearing held soon after the denial of the motion, the court elaborated further:
12 Alaska R. Civ. P. 15.
13
Miller v. Safeway, Inc. , 102 P.3d 282, 288 (Alaska 2004).
14 Id. at 294 (quoting Betz v. Chena Hot Springs Grp. , 742 P.2d 1346, 1348
(Alaska 1987)) (internal quotation marks omitted).
15 Id.
-9- 6994
----------------------- Page 10-----------------------
I denied [your motion] because you didn't show me
any . . . color[able] basis. . . . You had to show me that
GEICO did something that was legally unreasonable that
would amount to bad faith. You had to show me some
evidence of that, and . . . you did not[.] . . . [T]he essence of
your beef was that GEICO wasn't paying you an
astronomical amount of money. . . .
. . . [T]here's no evidence you've presented or
argument . . . in your motion that can tell me . . . what
[you're] saying they did wrong. . . . [I]f I look at it and I say,
"The gentleman doesn't understand the law [and] there's no
way a jury can get there based on what he says," I'm going
to deny that amendment to you or anybody else.
We do not need to determine whether the superior court's untimeliness
finding was erroneous, or whether that finding was sufficient to justify the denial of
Patterson's motion to amend. The futility of Patterson's proposed claims provides an
16
independent basis for denying the motion.
Patterson presented no factual allegations
that could support his new claims, which were all predicated on his apparent
understanding that GEICO was required to pay him his $1,000,000 policy limit in the
event of an accident. Patterson claimed at a pre-trial hearing that the superior court
misinterpreted the legal theory behind his proposed claims, but he provided no
16 See Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 177 (Alaska
2010) ("We consider with independent judgment whether a proposed amended complaint
could survive dismissal; if we conclude that it could not, we will hold that the superior
court did not abuse its discretion by denying the motion for leave to amend."); see also
Hallam v. Alaska Airlines, Inc. , 91 P.3d 279, 283, 287-88 (Alaska 2004) (affirming
denial of motion to amend because amended complaint's claims were preempted by
federal law); Taylor v. Johnson, 985 P.2d 460, 464-66 (Alaska 1999) (affirming denial
of motion to amend where plaintiff could not establish a tort claim).
-10- 6994
----------------------- Page 11-----------------------
17
alternative legal or factual grounds to support these claims. Most importantly,
Patterson at no point alleged that his medical costs or pain and suffering damages
approached a sum anywhere near the $800,000 and $1,000,000 settlement offers he made
to GEICO.
Because we agree with the superior court that Patterson's proposed new
claims were futile, we conclude that the court did not abuse its discretion by denying
Patterson's motion to amend.
B. The Reviewing Court Did Not Abuse Its Discretion By Denying
Patterson's Motion To Disqualify The Trial Judge.
About two weeks before the trial was originally set to begin, Patterson
moved to disqualify the trial judge. Patterson supported his motion for disqualification
by noting that the judge had granted summary judgment against him in a separate case
and had ruled against him on evidentiary motions in the present dispute. Patterson
further alleged a wide-ranging conspiracy of trial fixing and attempted murder carried
out by the judge, GEICO, five other judges, and three other companies.
The superior court denied Patterson's motion, and the matter was assigned
18
to another superior court judge for review. The reviewing court affirmed the denial of
Patterson's motion, concluding that there was no evidence of bias or prejudice in the trial
judge's evidentiary rulings nor "any basis for Mr. Patterson's multiple judge conspiracy
theories." The court noted that "[g]eneral dissatisfaction with a judge's ruling is not a
17 Immediately after Patterson claimed he was not asking GEICO for
$1,000,000, GEICO's attorney informed the court that, before the hearing, Patterson had
made "an offer of judgment for $800,000. . . . It was $1,000,000 before, but now it's
$800,000." Patterson did not contest this characterization of his settlement offers.
18 See AS 22.20.020(c) ("If a judicial officer denies disqualification the
question shall be heard and determined by another judge assigned for the purpose by the
presiding judge of the next higher level of courts . . . .").
-11- 6994
----------------------- Page 12-----------------------
ground for recusal or disqualification. . . . Similarly, personal bias or prejudice does not
exist simply because a judge previously presided over a case involving the same party."
Patterson argues that the denial of his motion to disqualify the trial judge
was an abuse of discretion. He supports this argument with a number of claims, some
19
We review previously unraised issues
of which he asserts for the first time on appeal.
only for plain error, which "exists where an obvious mistake has been made which
20
Because we perceive no plain
creates a high likelihood that injustice has resulted."
error,21 we limit our review to Patterson's original claims.
The reviewing court did not abuse its discretion by denying Patterson's
motion to disqualify. "There is no rule requiring recusal or disqualification of a judge
19 Specifically, Patterson claims for the first time on appeal that the trial judge
was biased against African-American men, was prejudiced against pro se litigants, acted
as an "advocate" for GEICO, and engaged in ex parte communications with GEICO's
attorney.
20
See Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013) (quoting Paula
E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 276 P.3d 422, 436
(Alaska 2012)) (internal quotation marks omitted).
21
Patterson's new claims are both overstated and unsubstantiated. For
instance, Patterson alleges that the trial judge called him a "dog" and spoke to him with
"anger and hat[red] in his voice." But the trial judge did not call Patterson a dog; he
merely used a variant of the idiom "barking up the wrong tree." And the courtroom
audio recordings contain no evidence that the judge spoke menacingly to Patterson.
Patterson also contends that the trial judge engaged in "ex parte communications" with
GEICO. This contention appears to stem from a statement the judge made to GEICO's
attorney off the record but in Patterson's presence. By definition, therefore, the
statement was not an ex parte communication. See B
LACK 'S LAW DICTIONARY 316 (9th
ed. 2009) (defining "ex parte communication" as "[a] communication between counsel
and the court when opposing counsel is not present"). Patterson further asserts that the
trial judge has "a history of out of court ex[] parte communications," but he points to no
evidence in the record to back this allegation.
-12- 6994
----------------------- Page 13-----------------------
who previously has presided over a case involving the party seeking disqualification or
22
recusal." And we have held that "[t]o succeed on a motion to disqualify a judge for
bias, the movant must show that the judge's actions were the result of personal bias
23
developed from a nonjudicial source." We see no evidence of bias in the trial judge's
evidentiary rulings, and Patterson has provided no evidence to substantiate his
conspiracy claim. We therefore affirm the denial of Patterson's motion to disqualify the
trial judge.
C. The Superior Court Did Not Abuse Its Discretion By Overruling
Patterson's Objections To Dr. Bald's Deposition Testimony.
Patterson contends that the superior court abused its discretion by
overruling some of his objections during the deposition of Dr. Bald. Patterson claims
that one of GEICO attorney's coached Dr. Bald's testimony, creating unfair prejudice.
He also claims that Dr. Bald's testimony contained false statements that another GIECO
attorney knowingly introduced to the jury over his objection.24
1. It was not unreasonable for the superior court to overrule
Patterson's witness-coaching objections.
To support his claim that portions of Dr. Bald's deposition should have
been excluded due to witness coaching, Patterson asserts that GEICO's attorney
instructed Dr. Bald to lie at two separate points in the deposition. We disagree with
22 Pride v. Harris , 882 P.2d 381, 385 (Alaska 1994) (emphasis in original).
23 Hanson v. Hanson , 36 P.3d 1181, 1184 (Alaska 2001) (quoting Nelson v.
Jones , 781 P.2d 964, 972 (Alaska 1989)) (internal quotation marks omitted).
24 Patterson also alleges other forms of professional misconduct on the part
of GEICO's attorneys, including (1) representing Patterson without permission and (2)
improperly and prejudicially substituting counsel. He raises these claims for the first
time on appeal; because we perceive no plain error, they are waived.
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----------------------- Page 14-----------------------
Patterson's characterization of the attorney's statements and conclude that the superior
court's decision to overrule Patterson's objections was reasonable.
The first statement that Patterson characterizes as witness coaching
occurred as GEICO's attorney questioned Dr. Bald about the extent of Patterson's
injuries on the night of the accident. The attorney appeared surprised by one of Dr.
Bald's answers, and he repeated Dr. Bald's testimony. While this statement was
technically objectionable because it was not in the form of a question, Patterson fails to
explain how it amounts to improper witness coaching. He also fails to explain how he
was prejudiced by it.
The second statement that Patterson cites arose only after Patterson
instructed Dr. Bald on how to answer a question. When Dr. Bald rejected the premise
of Patterson's question and began to explain why he could not answer it, Patterson told
him: "I asked you a question. All you got to do is answer yes or no. . . . I don't want
you . . . to explain it. . . . All you got to say is 'yes' or 'no.' " In response to Patterson's
incorrect instruction, GEICO's attorney stated that Dr. Bald did "not need to just answer
'yes' or 'no' " if he had more to say. (Emphasis added.) The attorney was making a legal
argument against Patterson's instruction and was not advising Dr. Bald to provide any
particular answer. Therefore the superior court did not abuse its discretion when it
overruled Patterson's improper witness coaching objection.
2. It was not unreasonable for the superior court to overrule
Patterson's false-statement objections.
Patterson also argues that the superior court should not have admitted a
separate portion of Dr. Bald's testimony because it contained false statements.
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----------------------- Page 15-----------------------
Moreover, he accuses another GEICO attorney of introducing the testimony knowing
that the statement was false.25
Patterson's criticism of the deposition testimony focuses on two of Dr.
Bald's assertions: first, that "[t]here was no reference by the EMTs [in the Anchorage
Fire Department Prehospital Care Report] that Mr. Patterson was complaining of any
lower back pain," and second, that "[Patterson] was complaining of[] left shoulder pain
and neck pain primarily on the left side. . . . [Patterson] specifically noted that there were
no other injuries." Patterson argues that these statements were inconsistent with the
emergency room report from the night of the accident, which noted that one of
Patterson's chief complaints was "pain in neck and back." We disagree.
Dr. Bald's interpretation of the emergency room report appears at least as
reasonable as Patterson's. The section of the report that provides a detailed description
of Patterson's symptoms contains no mention of lower back pain: "[Patterson] now has
pain in his left shoulder which he has had chronically but is worse now, worse to
movement. He also has pain in his neck, mostly on the left side as well. No one else was
in the vehicle with him. He denies any other injury ." (Emphasis added.) Thus the back
pain mentioned in the report, when read in the context of the entire document, probably
refers to shoulder pain, not lower back pain. But regardless of whose interpretation is
correct, Patterson has not demonstrated that Dr. Bald knowingly made a false statement
at his deposition, because the document can be read to support the doctor's
interpretation. As a result, Patterson has likewise failed to show that GEICO's attorney
offered evidence she knew to be false.
25 See Alaska R. Prof. Conduct 3.3(a) ("A lawyer shall not knowingly . . .
make a false statement of fact or law to a tribunal . . . or . . . offer evidence that the
lawyer knows to be false.").
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----------------------- Page 16-----------------------
For these reasons, we conclude that the superior court's admission of this
deposition testimony was not an abuse of discretion.
D. The Superior Court Did Not Violate Patterson's Free Speech And Due
Process Rights By Preventing Him From Discussing Subjects Outside
The Scope Of The Admissible Evidence.
During Patterson's opening statement and closing arguments to the jury,
the superior court repeatedly sustained GEICO's objections, made its own sua sponte
rulings, and ultimately ordered Patterson to conclude his opening statement and closing
arguments before his time had expired. Patterson argues that these restrictions on his
statements violated his constitutional free speech and due process rights.
Patterson's free speech argument is entirely without merit. The U.S.
Supreme Court has indicated that free speech rights are severely limited in the
courtroom: "It is unquestionable that in the courtroom itself, during a judicial
proceeding, whatever right to 'free speech' an attorney has is extremely circumscribed.
An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond
26 And we have held that "speech that
the point necessary to preserve a claim for appeal."
27 28
affects the judicial process can be limited." The courtroom is not a public forum, and
sustaining an objection does not violate a litigant's free speech right.
26 Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991).
27 Turney v. State , 936 P.2d 533, 541 (Alaska 1997) (citing Marks v. City of
Anchorage , 500 P.2d 644, 647 (Alaska 1972)) (rejecting First Amendment claim by
private citizen advocating within courthouse for jury nullification).
28 See Zal v. Steppe, 968 F.2d 924, 932 (9th Cir. 1992) ("Traditional First
Amendment analysis also supports the idea that lawyers (and others) have no First
Amendment right to speak freely in a courtroom: a courtroom is not a public
forum . . . .").
-16- 6994
----------------------- Page 17-----------------------
Patterson's due process claim, however, warrants more detailed discussion.
We interpret this claim as an argument that Patterson's substantial rights were violated
29
when the superior court ruled against him on evidentiary matters. But under Alaska
Evidence Rule 611(a), a trial court has wide discretion "to control the presentation of
evidence so as 'to make the interrogation and presentation effective for the ascertainment
30
of truth.' " Patterson's due process claim can have no merit if Patterson cannot even
show that the court's evidentiary rulings were unfair or unreasonable, and we see no
abuse of discretion in these rulings.
Nearly every sustained objection was intended to prevent Patterson from
discussing facts not in evidence or from making irrelevant and potentially prejudicial
arguments about topics the court had explicitly ordered him not to discuss. Patterson
repeatedly refused to abide by the superior court's order barring him from introducing
details about his insurance policy to the jury. He tried to talk about the insurance claim
process. He obliquely implied that he had car insurance while pulling an object -
possibly his insurance card - out of his wallet to show to the jury. He attempted to
discuss his insurance coverage limits. And he referenced his rejected insurance fraud
claim. The superior court was well within its discretion to limit Patterson's statements
on these matters.
The superior court also prevented Patterson from arguing that Dr. Bald and
Patterson's treating physicians had been sued in the past for medical malpractice. The
court stopped Patterson when he began referencing multiple medical malpractice claims
brought against Dr. Bald as if they were all factually supported. The court's action was
29 See Alaska R. Evid. 103(a).
30 Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996) (quoting 1 J OHN W.
STRONG , MCCORMICK ON EVIDENCE § 55, at 225 n.21 (4th ed. 1992)).
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reasonable because Patterson was mischaracterizing the evidence to the jury. Dr. Bald
admitted in his deposition that he had been liable for one instance of medical malpractice
during his career. But he also testified that the three remaining claims had been
dismissed, and Patterson presented no admissible evidence to contradict this testimony.
Likewise, Patterson presented no admissible evidence to support his insinuation that his
own doctors had committed malpractice. The court properly excluded all of Patterson's
proposed exhibits pertaining to malpractice allegations, because the documents were
hearsay and could not be authenticated.31 The superior court did not abuse its discretion
by requiring Patterson to discuss only facts that were supported by the evidence before
the jury.
And the superior court acted reasonably by ordering Patterson to end his
opening statement and closing arguments before his time had expired. Before ordering
Patterson to finish speaking during his opening statement, the court gave Patterson many
opportunities to correct his approach, advising him five times to focus his statement on
the only relevant issue: the extent of his injuries as described by the admissible evidence.
Despite these instructions, Patterson's narrative continued to exceed the scope of his
evidence, and he ultimately suggested that the jury should consider inadmissible issues:
"this matter is not all about [an] injury; it's about more that is not going to be brought
out." By this point, it was not unreasonable for the court to conclude that Patterson had
nothing else relevant to say.
The court's decision to prematurely end Patterson's closing argument was
similarly reasonable. During his argument, Patterson again ignored the court's
instructions to avoid discussing his insurance details and to focus on relevant facts.
31
See Alaska R. Evid. 802 (hearsay rule), 901 (authentication requirement).
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Moreover, the court ordered Patterson to finish his closing argument only after Patterson
attempted to improperly personalize the verdict to the jury:32
Ladies and gentlemen, what I'm trying to say is [that] GEICO
. . . is hoping and trying to get not only you but me to take a
knife and put it around your neck and pull it, because the
decision that is made today is going to affect you, your kids,
and anybody else that drive[s] out there on that road because
they honestly don't have to honor their contract.
Likewise, the court ordered Patterson to finish his rebuttal argument only after he
returned again to this improper theme:
All I'm asking you all to do is go back to that [deliberation]
room and do the right thing. Do the right thing. [GEICO]
wants you to do something that['s] going to [affect] not only
you, me, and everybody else. This opinion's going to be all
over the country. . . . This gives insurance companies a
chance to lowball you for your claims. That's what that's
about.
The superior court had a duty to ensure that the trial was fair to GEICO as
well as Patterson. The court took reasonable action to control the proceedings and
prevent Patterson from introducing irrelevant facts and prejudicial arguments to the jury.
The court did not abuse its discretion by limiting Patterson's statements to the relevant
evidence. And by providing Patterson with ample opportunity to speak to the jury about
the relevant evidence, the court ensured that Patterson received the process he was due.33
32 Cf. State v. Raspberry, 452 S.W.2d 169, 172 (Mo. 1970) (rejecting as
improper an argument that jury should return guilty verdict "for the sake of your
children, . . . for your wives, . . . for your families, [and] for the sake of the people of the
community").
33
Patterson also argues that the court violated his confrontation and due
process rights by denying his request to examine Dr. Bald telephonically at trial, and he
accuses one of GEICO's attorneys of making a false statement to this court by
(continued...)
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E. The Superior Court Did Not Abuse Its Discretion By Omitting
Portions Of Dr. Bald's Deposition When It Was Played To The Jury.
The superior court sustained objections to six segments of Dr. Bald's
deposition. Patterson argues that the court abused its discretion by omitting these
segments when the deposition was played to the jury. We disagree.
None of the six segments contained testimony that was relevant to the jury's
deliberations. One segment pertained to the discoverability of Dr. Bald's tax documents.
Three segments contained Patterson's argumentative and unsubstantiated accusations
that Dr. Bald had previously committed multiple instances of medical malpractice and
was lying to Patterson about them. Another segment pertained to past malpractice claims
that had previously been brought against Patterson's treating physicians; Dr. Bald had
no personal knowledge about the doctors or the claims. And the final segment consisted
of a legal discussion between Patterson and GEICO's attorney, followed by a series of
questions about the misconduct of a different Dr. Bald. Because these portions of the
deposition were irrelevant to the issues at trial, the court reasonably omitted them.
F. The Trial Court Did Not Err By Overruling Patterson's Objections
During GEICO's Opening Statement And Closing Argument.
Patterson argues that GEICO made unfairly prejudicial remarks in its
opening statement and closing argument. He claims GEICO violated a superior court
33(...continued)
mischaracterizing Confrontation Clause doctrine. But the Confrontation Clause does not
apply to civil proceedings, and GEICO's attorney's statement to that effect was both
accurate and proper. See U.S. CONST . amend. VI ("In all criminal prosecutions , the
accused shall enjoy the right . . . to be confronted with the witnesses against him."
(emphasis added)). And the superior court generally does not have subpoena power to
require out-of-state witnesses to appear. See Alaska R. Civ. P. 45(e) ("A subpoena
requiring the attendance of a witness at a hearing or trial may be served at any place
within the state." (emphasis added)).
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order by raising his prior medical history and by suggesting a specific amount for pain
and suffering damages. Patterson also contends that GEICO's closing argument
included a "golden rule" argument, a disclosure of the "ad damnum," and improper
personal opinions.
During opening statements, GEICO's attorney told the jury:
[Y]ou will see from the medical records that . . . Mr.
Patterson has a history of prior neck problems, prior left
shoulder problems, prior knee problems. He also has a
history of prior low back issues. You will see . . . that in the
month after this accident, his complaints were all about his
neck and his shoulder, that there [were] no specific
complaints about his low back or examination or diagnosis
regarding his low back until about a month and a half after
this accident occurred . . . . GEICO's position in this case
will be that he did not sustain a low back injury.
And during closing arguments, GEICO's attorney stated:
[I]f you look through the records and you add up the
medical expenses for December 2009, excluding . . . three
items of treatment [that GEICO believes were unrelated to the
car accident], the medical expenses total $6,354.61, and that's
what we'd ask that you award Mr. Patterson for past medical
expenses.
For past general damages, this is typically a difficult
area for juries to . . . [grasp], because what the court will tell
you is . . . there's no formula for figuring out what to award
somebody for pain and suffering. And in some respects your
job is more difficult here because you have no [testimonial]
evidence . . . to base an award on. All you have is what's in
the medical record. . . . So in the absence of . . . testimony,
we'd respectfully submit to you that, at most, what you can
award is a nominal amount for past pain and suffering, and
that's it because that's all the evidence supports in this case.
And we'd suggest an award [of] $500 [to] $1,000 for that
month of some pain.
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----------------------- Page 22-----------------------
Patterson's claim that GEICO violated a court order by discussing his
medical history is without merit. In the court order Patterson references, the superior
court explicitly noted that Patterson's medical records could be relevant for determining
whether his injuries stemmed from the accident, from preexisting conditions, or from
some combination of both. GEICO's attorney discussed Patterson's medical history for
exactly this purpose.
Patterson's argument that GEICO violated an order to avoid suggesting a
specific damages award is similarly meritless. Although the court ordered both parties
not to discuss the details of Patterson's insurance policy - including its coverage limits
- GEICO remained free to suggest a damages figure to the jury based on the evidence
at trial.
We also reject Patterson's claim that GEICO made an improper "golden
rule" argument. Golden rule arguments "implore[] the jurors to put themselves in the
position of [a party], and then to ask themselves what kind of outcome they would wish
34
Although we have held that golden rule arguments are
under the circumstances."
prejudicial and should be excluded,35 GEICO made no such argument in its opening and
closing statements.
Patterson's "ad damnum" argument seems to refer to GEICO's suggestion
that the jury award $500 or $1,000 for pain and suffering. An "ad damnum" is an
34 Beaumaster v. Crandall , 576 P.2d 988, 994 (Alaska 1978).
35 Id. (citing Mallonee v. Finch , 413 P.2d 159, 164 (Alaska 1966)).
-22- 6994
----------------------- Page 23-----------------------
36
antiquated term for the total damages claimed in a plaintiff's pleadings. But Patterson's
complaint did not include an ad damnum figure, so this argument is without merit.
Finally, we reject Patterson's claim that GEICO's attorney expressed an
improper personal opinion. The personal opinion objection is typically found in criminal
cases, when a "prosecutor . . . assert[s] personal opinion[s] about the culpability of the
37
defendant." The U.S. Supreme Court has explained that such arguments are prejudicial
because they "convey the impression that evidence not presented to the jury, but known
38 This can be particularly
to the prosecutor, supports the charges against the defendant."
prejudicial because "the prosecutor's opinion carries with it the imprimatur of the
Government and may induce the jury to trust the Government's judgment rather than its
39
own view of the evidence." But the prohibition against personal opinions does not
prevent an attorney from arguing the evidence from a client's position. Here GEICO's
attorney merely summarized the evidence and argued for GEICO's preferred legal
outcome. This was entirely proper, and the court did not abuse its discretion by allowing
GEICO to argue its case.
G. The Superior Court Did Not Misinstruct The Jury.
Patterson argues that the superior court misinstructed the jury by referring
to Dr. Bald as an "examining physician" early in the trial and by drafting an incorrect
special verdict form. We will overturn a jury instruction or special verdict form only if
36 See, e.g., Jackson v. Leu-Pierre, 296 A.2d 902, 903 (N.H. 1972) ("The
plaintiff's original writ . . . contained an ad damnum in the amount of $12,000.00. By
motion granted by agreement . . . , this was increased to $13,500.00 due to the addition
of a claim for property damage.").
37 See Noel v. State, 754 P.2d 280, 283 (Alaska App. 1988).
38 United States v. Young, 470 U.S. 1, 18 (1985).
39 Id. at 18-19.
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----------------------- Page 24-----------------------
we conclude both "that the instruction or special verdict form was legally erroneous" and
40
"that the verdict would probably have been different but for the error."
Patterson correctly notes that the superior court erroneously referred to Dr.
Bald as "a physician who examined Mr. Patterson" while providing the jury with an
overview of the evidence they would hear at trial. But Patterson quickly brought this
error to the court's attention, and the court addressed the mistake with the jury:
I want to correct a misstatement I made . . . . I said that Dr.
Bald was . . . an examining physician. It turns out I'm
wrong. . . . He's a defense expert. However, he did not
conduct an examination of Mr. Patterson. He merely
conducted what we call a records review but not a physical
examination. So I wanted to correct any misimpression.
Patterson did not object to this subsequent characterization of Dr. Bald's role. Moreover,
GEICO reiterated during its opening statement that "Dr. Bald conducted what's called
a records review. He reviewed Mr. Patterson's records. He did not examine Mr.
Patterson ." (Emphasis added.) These clarifications, along with the playback of Dr.
Bald's deposition to the jury, clearly and accurately described Dr. Bald's role, and
Patterson has not presented any evidence that he was prejudiced by the court's initial
misstatement.
Patterson also argues that the superior court erred by crafting a special
verdict form based on GEICO's proposed form, not his. But there were only three
material differences between the court's special verdict form and Patterson's proposed
form: (1) the court's form asked the jury whether it was "more likely true than not" that
Patterson was injured by the December 2009 accident; (2) Patterson's form incorrectly
stated that "GEICO [was] obligated to pay to Plaintiff the applicable policy limit . . .
40
Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (citing Reich v.
Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)).
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----------------------- Page 25-----------------------
spelled out in the contract"; and (3) Patterson's form contained a reference to "bad faith
damages."
Patterson is correct that, in the absence of further instruction, asking the
jury to evaluate whether he had been injured in the accident might have been prejudicial
in light of GEICO's admission that he sustained at least minor injuries. Nevertheless,
both the superior court and GEICO informed the jury that this issue was not contested
and that the jury was required to find that the car accident resulted in personal injury to
Patterson. Because the jury followed this instruction, Patterson suffered no prejudice.
Patterson's remaining complaints about the court's special verdict form are
entirely without merit. Neither Patterson's policy limit nor his proposed bad faith claim
were relevant to the jury's deliberations, and referencing either item on the special
verdict form would have caused unfair prejudice to GEICO.
For these reasons, we conclude that the superior court did not misinstruct
the jury.
H. The Superior Court Did Not Err By Adjusting The Judgment Or
Awarding Attorney's Fees And Costs To GEICO.
Patterson argues that the superior court erred by adjusting the final
judgment by $5,000 to account for medical expenses that GEICO had already paid. He
also argues that the superior court erred by granting GEICO's request for attorney's fees
and costs.
Patterson claims that, by deducting $5,000 from the jury verdict, the
superior court erroneously ordered him to "pay GEICO back" for the medical expenses
he incurred. This is incorrect. The unadjusted jury verdict covered all of Patterson's
damages, and the court's adjustment reflected GEICO's past compensation to Patterson
in the form of paid medical expenses. Indeed, had the court failed to make this
adjustment, Patterson would have received a double recovery.
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----------------------- Page 26-----------------------
We also conclude that the superior court did not err by declaring GEICO
the prevailing party and granting GEICO's request for attorney's fees and costs. Under
Alaska Civil Rule 68, if a party serves an offer of judgment "more than 10 days before
the trial begins" and the final judgment "is at least 5 percent less favorable to the offeree
than the offer, . . . the offeree . . . shall pay all costs as allowed under the Civil Rules and
shall pay reasonable actual attorney's fees incurred by the offeror from the date the offer
was made." Rule 68(b)(2), which is applicable here, provides that "if the offer was
served more than 60 days after the date established in the pretrial order for initial
disclosures . . . but more than 90 days before the trial began, the offeree shall pay 50
percent of the offeror's reasonable actual attorney's fees."
GEICO presented Patterson a valid offer of judgment for $15,001 plus
prejudgment interest, "in addition to the $5,000.00 in auto medical payments benefits
previously paid by Geico on plaintiff's behalf." (Emphasis added.) The superior court,
after deducting $5,000 for GEICO's past medical payments from the jury verdict and
41 determined that the final judgment for Patterson
adding $1,386 in prejudgment interest,
was $11,386. Because this amount was more than five percent smaller than the $15,001
plus interest that GEICO had previously offered Patterson, the court concluded that
GEICO was the prevailing party and was therefore entitled to attorney's fees and costs
under Rule 68. GEICO reported that it had incurred $3,087.25 in costs, and that it was
41 Patterson argues that the proper interest rate should have been 8%, not the
3.75% the court used. But it is unclear where Patterson obtained this figure, since the
statute he cites, AS 45.45.010(a), is not only irrelevant but references an interest rate of
10.5%. Regardless, the correct interest rate under AS 09.30.070 was 3.75% - that is,
3% more than the .75% U.S. Federal Reserve discount rate in effect on January 2, 2013.
See U.S. F
ED . RESERVE , DISCOUNT AND ADVANCE RATES : NOVEMBER 19 AND
D E C E M B E R 1 0 , 2 0 1 2 , a t 2 ( 2 0 1 2 ) , a v a i l a b l e a t
http://www.federalreserve.gov/newsevents/press/monetary/monetary20130108a.pdf.
-26- 6994
----------------------- Page 27-----------------------
eligible for a $6,742 attorney's fees award under Rule 68(b)(2). The court subtracted
these expenses from Patterson's final judgment amount, which resulted in a net final
judgment of $1,556.75 in favor of Patterson. We see no error in the court's calculations.
V. CONCLUSION
We AFFIRM the judgment of the superior court in all respects.
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