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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cooper v. Thompson (6/26/2015) sp-7016

Cooper v. Thompson (6/26/2015) sp-7016

         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  



MICHAEL J. COOPER and                                 )  

CENTRAL PLUMBING &                                    )        Supreme Court No. S-15554  

HEATING,                                              )  

                                                      )        Superior Court No. 3AN-09-06600 CI  

                           Appellants,                )  

                                                      )        O P I N I O N  

         v.                                           )  

                                                      )       No. 7016 - June 26, 2015  

SAMUEL L. THOMPSON,                                   )  


                           Appellee.                  )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Sen K. Tan, Judge.  

                  Appearances:    Matthew  D.  Regan  and  Alex  Vasauskas,  

                  Holmes Weddle & Barcott, P.C., Anchorage, for Appellants.  


                  Marc W. June, Law Offices of Marc June, Anchorage, for  


                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  FABE, Chief Justice.  


                  In  December  2008  Michael  Cooper  caused  a  car  accident  that  injured  

Samuel Thompson. During the second trial on compensatory damages the superior court  


excluded any evidence that Thompson had been assaulted by his then-girlfriend after the  

accident and limited the testimony of a defense expert witness.  The superior court also  


----------------------- Page 2-----------------------

delivered an instruction on liability for additional harm to which Cooper objected.                                                                  The  

jury returned a $1,458,430 verdict in favor of Thompson, which exceeded his offer of                                                           

judgment  and  thus  entitled   him   to   an  award  of  attorney's  fees  under  Alaska  Civil  

Rule 68.  The superior court calculated Thompson's fee award based on the contingency   

fee agreement he had entered into with his attorney. Cooper and his employer appeal the                                  

trial court's evidentiary rulings, jury instruction, and fee award.  We reverse the complete       

exclusion of the evidence that Thompson had been assaulted because it was relevant to  


his claim of continuing injury suffered as a result of the car accident, and we remand for  

a new trial.  


                        This is the second appeal arising out of this litigation.  We provided this  

overview in our previous decision:  


                        In December 2008 Michael Cooper caused a car accident that  

                        injured  Samuel  Thompson.  Thompson  sued  Cooper  and  

                        Cooper's             employer[,              Central           Plumbing              &       Heating,  

                        collectively   "Central,"]   for   compensatory   and   punitive  


                        damages.    The  jury  returned  a  verdict  for  Thompson  for  

                        compensatory damages, but not for punitive damages.  The  

                        parties         appeal[ed]            rulings         on      evidentiary            issues,        jury  

                        instructions, and denied motions.  We affirm[ed] most of the  


                        superior court's rulings, but we reverse[d] its (1) exclusion of  


                        Thompson's   treating   physicians'   opinion   testimony   on  

                        medical  causation,  and  (2)  denial  of  a  jury  instruction  on  

                        additional   harm.      We   remand[ed]   for   a   new   trial   on  


                        compensatory damages.  


                        The new trial occurred in December 2013.  The jury returned a verdict for  


Thompson.  Central appeals two evidentiary rulings, one jury instruction, and awards of  

attorney's fees under Alaska Civil Rules 40(e)(2) and 68.  

            1            Thompson v. Cooper, 290 P.3d 393, 395 (Alaska 2012).  

                                                                            -2-                                                                    7016  

----------------------- Page 3-----------------------


           A.         Evidentiary Rulings  

                      "A superior court's decision whether to admit evidence under Evidence  

Rule 403 requires it to balance the probative value of the evidence against its unfair  



prejudice; we review this balancing for abuse of discretion."   "When reviewing the  


exclusion of evidence under Evidence Rule 403 as unfairly prejudicial, we first 'consider  

the relevance of the excluded evidence and then determine whether the superior court's  


                                                                                                 "We review a trial court's  

exclusion of it constitutes a clear abuse of discretion.' " 


                                                                                                                       "We will find  

ruling on the admissibility of expert testimony for abuse of discretion."  


an abuse of discretion when the decision on review is manifestly unreasonable."     

                      "An erroneous decision regarding admissibility will only be reversed 'if it  



affected the substantial  rights of a party.' "   "When the trial court has erroneously  


excluded evidence, a party must show that the error was harmful or prejudicial before  


we will reverse the trial court."    

           2          Pouzanova v. Morton , 327 P.3d 865, 867 (Alaska 2014) (footnote omitted).  

           3          Kingery  v.  Barrett ,  249  P.3d  275,  285  (Alaska  2011)  (alterations  and  

omission omitted) (quoting Liimatta v. Vest , 45 P.3d 310, 313 (Alaska 2002)).  

           4          State v. Coon, 974 P.2d 386, 398 (Alaska 1999).  

           5          Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc.                                      , ___ P.3d ___, Op.   

No. 7003 at 7, 2015 WL 1958657, at *3 (Alaska May 1, 2015).  

           6          Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 349 (Alaska 2012)  


(quoting Cartee v. Cartee, 239 P.3d 707, 721 (Alaska 2010)).  

           7          Id. at 353.  

                                                                     -3-                                                              7016

----------------------- Page 4-----------------------

           B.        Jury Instructions  

                     "Where  a  party  has  objected  to  a  jury  instruction  in  accordance  with  



Rule  51(a),  '[t]he  correctness  of  jury  instructions  is  reviewed  de  novo.'  " 

instruction  that  sets  out  an  incorrect  or  incomplete  statement  of  the  applicable  law  

amounts to reversible error only if it causes substantial prejudice to a party - that is,  


only  'if  it  can  be  said  that  the  verdict  may  have  been  different  had  the  erroneous  


instruction  not  been  given.'  "     "We  evaluate  whether  any  error  was  prejudicial  by  


putting ourselves in the position of the jurors and determining whether the error probably  

affected their judgment."10  

           C.        Attorney's Fees  

                     "We  review  awards  of  attorney's  fees  for  abuse  of  discretion  and  will  


reverse 'if the award is arbitrary, capricious, manifestly unreasonable, or improperly  



motivated.' "            We "review de novo issues concerning the interpretation of civil rules,  


'adopting  the  rule  of  law  that  is  most  persuasive  in  light  of  precedent,  policy  and  


reason.' "          

           8         Brown v. Knowles , 307 P.3d 915, 923 (Alaska 2013) (alteration in original)   

(quoting Ayuluk v. Red Oaks Assisted Living, Inc.                              , 201 P.3d 1183, 1197 n.30 (Alaska     


           9         Parnell  v.  Peak  Oilfield  Serv.  Co. ,  174  P.3d  757,  765  (Alaska  2007)  

(quoting Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)).  



                     Zamarello v. Reges, 321 P.3d 387, 392 (Alaska 2014) (quoting Henrichs  

v. Chugach Alaska Corp., 250 P.3d 531, 535 (Alaska 2011)).  

           11        Roderer v. Dash , 233 P.3d 1101, 1106 (Alaska 2010) (quoting Rhodes v.  

Erion , 189 P.3d 1051, 1053 (Alaska 2008)).  

           12        Okagawa v. Yaple, 234 P.3d 1278, 1280 (Alaska 2010) (internal quotation  


marks omitted) (quoting Cook Schuhmann & Groseclose, Inc. v. Brown & Root, Inc., 116  


                                                                  -4-                                                           7016

----------------------- Page 5-----------------------


         A.       Evidence Of The Domestic Violence Assaults Against Thompson  

                  1.       Factual and procedural background  

                  The car accident occurred in late December 2008.13  

                                                                                        During the following  

months  Thompson  complained  of  neck  and  lower  back  pain,  and  he  underwent  a  

diagnostic procedure in April 2009 and disc replacement surgery in May 2009.14  During  

this period Thompson was dating a woman named Amy Christiansen.15  

                  In  July  2009  Thompson  petitioned  for  and  received  a  protective  order  


against Christiansen.  In the ex parte proceeding Thompson described a July 23, 2009  

incident of domestic violence in which Christiansen punched and kicked him, as well as  


an earlier incident in which Christiansen stood on him and choked him.  He did not  


specify the date of the earlier incident during the ex parte hearing, but he did report that  

it occurred after his back injury.  At a hearing on the admissibility of this domestic  

violence evidence during the first trial, he clarified that the choking incident occurred in  

July 2009.  


                  Before the first trial Thompson moved to exclude all evidence of domestic  

violence against him.  The superior court ruled that evidence of domestic violence could  

not be admitted without prior clearance from the court that it was permissible under  


Evidence Rule 403.  At the first trial Central questioned Thompson about the domestic  


violence outside the presence of the jury, and the superior court ruled that the testimony  


P.3d 592, 597 (Alaska 2005)).

         13       See Thompson v. Cooper, 290 P.3d 393, 395 (Alaska 2012).  

         14       Id. at 396.  

         15       Id. at 395.  

                                                        -5-                                                  7016

----------------------- Page 6-----------------------


would not be admitted. The court explained that it found Thompson's testimony that the  


domestic violence did not occur until after the surgery credible and concluded that the  

probative  value  of  evidence  about  domestic  violence  would  be  outweighed  by  the  

evidence's danger of unfair prejudice.  


                    During the first trial Thompson testified that although he felt pain in his  


neck and shoulders shortly after the accident, that pain had since ended, leaving only the  


pain in his lower back, or lumbar spine.  Following our remand Thompson was deposed  


again.  During his second deposition he testified that he was experiencing pain in his  


shoulders and neck, or cervical spine, as well as headaches and the pain in his lower  


back.  Thompson testified about this pain at the second trial, and his experts testified that  

he had herniated discs in both his lumbar spine and cervical spine.  

                    Before the second trial Thompson moved that the superior court's order  


excluding  evidence  of  domestic  violence  absent  prior  clearance  from  the  court  be  

extended to the second trial.  Central opposed and cited the cervical disc injuries that  

Thompson claimed in the second trial but not the first as reason to revisit that ruling.  The  

superior court granted Thompson's motion and again ruled that evidence of domestic  

violence  was  "highly  prejudicial"  and  would  be  "subject  to  a  balancing  test  under  

Evidence Rule 403 before it may be admitted."  


                    During  Thompson's  case-in-chief  in  the  second  trial  several  expert  

witnesses  testified  about  whether  the  accident  was  the  likely  cause  of  Thompson's  


injuries.  Three of the witnesses were asked to describe the likelihood that the accident  

had  caused  the  injuries  "assuming  no  significant  intervening  trauma."    All  three  

answered that the accident was the most likely cause.  

                    During  cross-examination  of  one  of  Thompson's  treating  physicians,  


Dr. Allison Hanna, Central asked whether choking could cause cervical disc herniation.  


She answered that it could.  Central elicited similar testimony from one of its own expert  

                                                             -6-                                                        7016

----------------------- Page 7-----------------------

witnesses, Dr. James Blue, who testified that the act of fighting off a choking attempt  

could cause cervical disc herniation.  


                    Central then stated its intention to call Thompson and "ask Mr. Thompson  


if he had been choked at some point - without identifying who the source was, if he had  


been choked at some point after the accident, but prior to July 23rd of 2009," the date of  


the incident of domestic violence that led Thompson to seek a protective order.  Central  


argued that the references to the absence of significant trauma other than the accident in  


the  questioning  of  Thompson's  experts  had  opened  the  door  to  evidence  about  the  

incidents of domestic violence.   

                    The  superior  court  held  a  hearing  outside  the  presence  of  the  jury  and  

ordered briefing.  Thompson argued that the evidence should be excluded either as more  


unfairly prejudicial than probative under Evidence Rule 403 or based on Central's failure  


to   implead   Christiansen   as   required   by   AS   09.17.080.                               Central   argued   that  

AS  09.17.080  was  not  applicable  because  "this  case  does  not  present  a  question  of  


apportionment  of  fault"  because  "any  spinal  injury  Mr.  Thompson  sustained  or  

developed was due to other causes, including domestic violence, which are distinct,  


separate, and unrelated to the accident or to the medical treatment for injuries sustained  

in the accident."  

                                                                                                                     17 ruled  

                    The superior court, relying on our decision in L.D.G., Inc. v. Brown ,  

that AS 09.17.080 applied and prevented Central from arguing that Christiansen bore any  


of the responsibility for Thompson's injuries.  It alternatively ruled that the evidence of  


domestic violence was inadmissible under Evidence Rule 403 because the petition and  

          16        See  AS  09.17.080(c)  (requiring,  in  certain  circumstances,  that  fault  be  

allocated only among the parties participating in a lawsuit).  

          17        211 P.3d 1110 (Alaska 2009).  

                                                             -7-                                                        7016

----------------------- Page 8-----------------------

ex parte protective order did not mention any injuries or medical treatment associated  


with the domestic violence assault incidents, and because the topic of domestic violence  


was so sensitive, with high potential for unfair prejudice.  The superior court therefore  

ruled that Central could not elicit any evidence of the domestic violence assaults against  



                   2.	       Central did not waive this matter on appeal by failing to appeal  

                             a similar ruling in the first trial.  

                   Thompson argues that our rule against expanding issues  on successive  

appeals bars Central's appeal in this case because Central did not appeal the superior  


court's exclusion of all evidence that Thompson had suffered a domestic violence assault  

in the first trial.  We disagree.  

                   We have previously refused to consider appeals of legal determinations that  



could have been before us but were not argued in earlier appeals.                               But the rule against  


expanding issues on successive appeals is not a bar in this case.  Although we decided  



one evidentiary issue in the first appeal,                 we left "the determination of [other appealed]  


evidentiary issues to the future discretion of the superior court."                             Evidentiary rulings,  

          18       Thompson argues that the superior court could also have considered the  

timing of Central's application to admit the domestic violence evidence as a reason to  

deny that application.  But the superior court specifically declined to rely on that basis  


and instead limited its ruling to the dual grounds of AS 09.17.080 and unfair prejudice  


under Evidence Rule 403.  

          19	      See, e.g.,  Villars v. Villars, 336 P.3d 701, 711 (Alaska 2014).  

          20       See Thompson, 290 P.3d at 399-400 (deciding that testimony of treating  

physicians was improperly excluded).  

          21       Id. at 401 (leaving the admissibility of evidence of Thompson's alleged  

drug abuse and FDA approval of Thompson's surgery "to the future discretion of the  

superior court").  

                                                            -8-	                                                     7016

----------------------- Page 9-----------------------



unlike purely legal matters,                are context-dependent and made with an eye to how a case  


has developed.             This case provides an apt example.  Central argues that the evidence  


of domestic violence was particularly relevant to  injuries Thompson reported at the  


second trial but not the first.  In light of the different evidence presented in the two trials,  


an exclusion of evidence that might have been correct or harmless if wrong in the context  


of the first trial could be significantly more consequential in the context of the second.  


Given that possibility, the rule against expanding issues on successive appeals does not  

bar this issue on appeal.  


                    3.	       Alaska Statute 09.17.080 does not require that defendants join  


                              parties whose alleged fault is not related to the incident at issue  

                              in the action.  

                    "Although  we  ordinarily  review  the  decision  whether  someone  is  an  


indispensable party for an abuse of discretion, the decision in this case depends upon the  

interpretation of a statute, which we decide de novo."24  

                    "Under AS 09.17.080, a jury may not allocate fault to a third party unless  


that third party has been joined as a defendant, with certain exceptions not relevant  


          22        See  State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851,  

873-74 (Alaska 2003) (refusing to consider statutory sovereign immunity argument).  

          23        See, e.g., Schofield v. City of St. Paul, 238 P.3d 603, 609 (Alaska 2010)  


(declining to express any opinion on additional appealed evidentiary issues once one  

required remand "[b]ecause it is unknown what specific evidence will be introduced on  


remand and what objections might be raised").  

          24        Pouzanova v. Morton , 327 P.3d 865, 867 (Alaska 2014) (footnote omitted).  

                                                               -9-	                                                        7016

----------------------- Page 10-----------------------

here."25  This statute's purpose is to ensure that fault for an incident is accurately litigated  


by preventing a party from blaming an "empty chair" defendant for the injuries at issue.26  


                    The superior court ruled that AS 09.17.080 applied to this case without the  




benefit of our subsequent decision in Pouzanova v. Morton .                                     In Pouzanova the trial  


court allowed the defendant to elicit testimony about domestic violence the plaintiff had  


suffered at her husband's hands to demonstrate that some of the plaintiff's non-economic  


loss was attributable to her domestic situation and not solely to the accident at issue.28  

We  affirmed  the  decision  to  allow  such  testimony  without  joining  the  husband  and  


explained that "it is only fault for the incident at issue that is being allocated among  

                                                                               29  Because the defendant's theory  

potentially responsible parties" under AS 09.17.080.      

was that some of the plaintiff's claimed damages were due to conduct entirely unrelated  


to the automobile accident at issue, "the district court was correct in ruling that [the  


plaintiff]'s husband did not have to be joined as a third-party defendant."30  

                    Pouzanova controls the result in this case.  Central was clear at trial that it  

viewed Christiansen's actions as "potentially a new, distinct, and separate cause" of  


Thompson's cervical disc herniation.  Unlike the defendant in L.D.G., Inc. v. Brown ,  


          25        Id. at 869.  

          26        See A   laska  Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98, 102-04 (Alaska 2000).  

          27        327 P.3d 865 (Alaska 2014).  

          28        See id. at 869-70.  

          29        Id. at 870.  

          30        Id.  

          31        See  211  P.3d  1110,  1121-22  (Alaska  2009)  (affirming  exclusion  of  

evidence of intoxicated bar patron's role in fatally shooting decedent).  

                                                              -10-                                                         7016

----------------------- Page 11-----------------------

the case on which the superior court relied, Central did not argue that Christiansen bore     

"fault for the incident at issue,"32 and thus AS 09.17.080's apportionment rules were  


inapplicable.  The superior court erred in its ruling that this statute required the exclusion  

of the domestic violence evidence based on Central's failure to join Christiansen.  


                       4.	        The wholesale exclusion of domestic violence evidence as more  

                                  unfairly prejudicial than probative was an abuse of discretion.  


                       "Under Rule 402, our 'Rules of Evidence start from the proposition that all  


                                                              Alaska Evidence Rule 403 provides an exception:  

relevant evidence is admissible.' " 


"Although relevant, evidence may be excluded if its probative value is outweighed by  


the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by  

considerations of undue delay, waste of time, or needless presentation of cumulative  

                                                                                                                                    34  When  

evidence."  The trial court has "broad discretion in applying this balancing test." 

we review the exclusion of evidence under Evidence Rule 403 as unfairly prejudicial,  


"we first consider the relevance of the excluded evidence and then determine whether[,  


in light of its prejudicial effect,] the superior court's exclusion of it constitutes a clear  

abuse of discretion."35  

                       The excluded evidence was relevant. Thompson's petition for a protective  


order described a July 23, 2009 incident in which Christiansen punched him in the face  


multiple times and kicked him in the ribs.  The petition also alleged that two days later  

           32	        Pouzanova , 327 P.3d at 870.  

           33          City of Bethel v. Peters, 97 P.3d 822, 826-27 (Alaska 2004) (quoting United  

States v. Cruz-Garcia, 344 F.3d 951, 954 (9th Cir. 2003)).  

           34         Schofield v. City of St. Paul, 238 P.3d 603, 608 (Alaska 2010).  

           35         Kingery v. Barrett , 249 P.3d 275, 285 (Alaska 2011) (internal quotation  

marks, alterations, and omission omitted) (quoting Liimatta v. Vest , 45 P.3d 310, 313  

(Alaska 2002)).  

                                                                     -11-	                                                               7016

----------------------- Page 12-----------------------

Thompson awoke to Christiansen holding him down, and that she then punched him   

again.  At the protective order hearing Thompson described an incident earlier the same                                            

month in which Christiansen stood on top of him as he was lying down and choked him                 

with both hands.  In both the protective order hearing and the second trial, Thompson  


testified  that  he  had  not  needed  medical  treatment  as  a  result  of  the  incidents  with  


                      At the second trial the cause of Thompson's injuries "was the central issue,"  


just as it had been in the first trial.                     Central elicited testimony from one of Thompson's  

expert witnesses and one of its own that being choked and fighting off being choked can  


cause cervical disc herniation.  The excluded evidence that Thompson was choked thus  


"go[es] to the core" of Central's defense regarding the cause of Thompson's cervical  


                  More importantly, several of Thompson's expert witnesses were asked to  


evaluate  the  likelihood  that  the  automobile  accident  caused  Thompson's  injuries  

"assuming no significant intervening trauma." Prohibiting reference to the documented  

assaults on Thompson thus denied the jury evidence relevant to determining the cause  

of Thompson's unresolved cervical injuries and relevant to evaluating the weight of  

several witnesses' testimony.  The excluded evidence did not explain all of Thompson's  


injuries, but the explanation for the severity and persistence of his cervical injuries was  


a "fact that is of consequence to the determination of the action," and evidence does not  


                                                                   In light of the importance of causation in this  

need to be dispositive to be relevant.                                                       

           36          Thompson v. Cooper, 290 P.3d 393, 400 (Alaska 2012).  

           37         Schofield, 238 P.3d at 608.  

           38         Alaska R. Evid. 401.  

                                                                     -12-                                                               7016

----------------------- Page 13-----------------------


trial, it is not possible to reliably conclude "that the jury was not substantially swayed or  

affected by the [exclusion]."39 

                    Having evaluated the excluded evidence's relevance, we turn to whether,  

in light of the evidence's potential for unfair prejudice, the superior court's exclusion  


was a clear abuse of discretion.                    The Commentary to Alaska Rule of Evidence 403  

recommends that before excluding evidence trial courts consider alternative means of  

avoiding unfair prejudice, including limiting instructions and substitute means of proof.41 


In this case the prejudice the superior court identified came from the fact that Thompson  


was in a domestic relationship with his attacker:  The court worried that the jury might  


believe that Thompson "plays the role of the victim" if it learned that he had stayed in  


an abusive relationship.  But there was a way for the superior court to control how the  


parties presented evidence to prevent that fact from coming before the jury.  As Central  

proposed  to  the  superior  court  when  it  moved  during  the  second  trial  to  introduce  


evidence of the assaults, Central could have been permitted to question Thompson about  


being choked "without identifying who the source was."  Such a limitation would have  


both presented the jury with the relevant evidence that Thompson had been assaulted and  


choked in July 2009 and addressed the risk of "a decision being reached by the trier of  

facts on an improper basis."42 

          39        Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 353 (Alaska 2012)  

(quoting Liimatta , 45 P.3d at 317).  

          40        See  Kingery , 249 P.3d at 285.  



                    See Commentary Alaska E. R. 403; cf. City of Bethel v. Peters, 97 P.3d 822,  


827 (Alaska 2004) (affirming superior court's admission of a report with inadmissible  

sections redacted).  



                    Getchell v. Lodge, 65 P.3d 50, 57 (Alaska 2003) (quoting Liimatta , 45 P.3d  


                                                              -13-                                                         7016

----------------------- Page 14-----------------------

                    Because the excluded evidence of the post-surgery assaults went to the core   

of Central's defense theory and could have been admitted without unfairly prejudicing  


the jury against Thompson, it should have been admitted.  The jury was entitled to put  


no more stock in this evidence than the superior court appeared to, but the court abused  


its discretion by wholly preventing Central from asking Thompson about being assaulted  


and  choked  so  shortly  after  his  surgery.    Because  the  exclusion  could  have  had  a  

substantial influence on the verdict, we remand for a new trial.  

          B.        Limitations On Expert Testimony  

                     1.        Factual and procedural background  


                    One   of   Central's   witnesses   was   Dr.   Irving   Scher,                            an     expert   in  


biomechanics.  Before the second trial Central moved for a ruling that Dr. Scher would  

be  allowed  to  testify  as  to  his  opinion  about  the  causes  of  Thompson's  injuries.  


Thompson opposed and argued that the superior court's ruling during the first trial that  


a  different  biomechanics  expert  could  not  testify  about  causation  should  apply  to  

Dr. Scher in the second trial.  The superior court ruled before the trial that Dr. Scher  


could not testify as to his opinion about the causes of Thompson's injuries, but also ruled  


that Central would have an opportunity to make an offer of proof or present testimony  


on this issue during the trial outside the presence of the jury in order to identify the  

appropriate limits, if any, on Dr. Scher's testimony.  


                    During the trial Central explained that it sought to call Dr. Scher to present  

both "scientific testimony" and "experience-based testimony."  At a mid-trial hearing  


outside the presence of the jury, both parties examined Dr. Scher about his qualifications  

and the basis for his opinions in this case.  


at 315).  

                                                               -14-                                                             7016  

----------------------- Page 15-----------------------

                   The  superior  court  then  ruled  that  Dr.  Scher  was  a  "Daubert-type,  

scientific-type expert[]," and that although Dr. Scher could testify about the forces he  

calculated Thompson had experienced in the accident and compare those forces to the  

effects of other activities, he could not "testify as to the precise cause of the injury."  The  

court concluded that any testimony about the specific causes of Thompson's injuries  


would exceed Dr. Scher's biomechanics expertise and amount to a medical diagnosis he  

was not qualified to make.  

                   When the jury returned the court qualified Dr. Scher as a biomechanics  

expert  and  Central  questioned  him  on  direct  examination.    He  testified  about  the  

materials he examined and software he used to reconstruct the accident and discussed the  

forces the reconstruction analysis suggested Thompson had experienced.  Dr. Scher  


compared these forces to those experienced during daily activities like walking up and  

down stairs or lifting boxes, and he testified that the compressive force he calculated  


Thompson to have experienced in the accident was "lower than or . . . indistinguishable  


from these other activities."  He further testified about the ways disc herniations occur  


and detailed his search in a National Highway Transportation Safety Administration  

database of car accidents for accidents comparable to the accident at issue in the case,  


which  he  testified  revealed  387  similar  accidents  but no  injuries  as  severe  as  those  

Thompson claimed to have suffered.  

                   Thompson's subsequent cross-examination of Dr. Scher started by eliciting  


his  agreement  that  he  was  "not  testifying  about  the  causes  of  the  specific  injury  to  


Mr. Thompson," "not giving opinions as to the injuries to Sam Thompson specifically  

caused by this motor vehicle accident," and "not giving opinions today as to [whether]  


Sam Thompson's injuries became worse during his medical treatment."  Thompson then  


cross-examined Dr. Scher on, among  other matters, the materials he had used in his  

accident  reconstruction  analysis,  the  forces  that  analysis  suggested  Thompson  had  

                                                          -15-                                                     7016

----------------------- Page 16-----------------------

experienced, and whether Central would have called him to testify if his testimony had  


been less favorable.  

                   In his closing argument, Thompson emphasized the limits of Dr. Scher's  


                   Dr. Scher very specifically did not address the issue in the  

                   case that you're being asked to address.                   He did not address   

                   what  Sam  Thompson's  injuries  were  in  the  motor  vehicle  

                   accident.  He did not address how the injuries in the motor  

                   vehicle accident led to other complications in time.  He did  


                   not address the cervical herniations.  And so his testimony  

                   has very little impact on your questions.  

                   In turn, Central used part of its closing argument to explain the value of  


Dr. Scher's testimony:  

                   [B]iomechanics is a separate, distinct, you know, discipline,  


                   specialty  [from  medicine],  that  addresses  issues  like  what  

                   causes injury to different parts of the body, and you saw -  


                   this was what Dr. Scher was talking about, the role of injury  

                   biomechanics, and he discussed forces of motion, that that's  

                   what  they  were  looking  at.    He  did  his  analysis  of  the  


                   accident, which showed a delta-V of about 6-1/2 miles an  

                   hour and talked about the rotational aspects of it.  

Central also reminded the jury of Dr. Scher's discussion of the causes of disc injuries and  


comparison  of  Thompson's  injuries  with  those  reported  in  the  database  of  similar  


                   2.	       Central did not waive this matter on appeal by failing to appeal  


                             a similar ruling in the first trial.  

                   Thompson argues that our rule against expanding issues  on  successive  


appeals  bars  Central's  appeal  in  this  case  because  Central  did  not  appeal  a  similar  

limitation on the scope of Central's biomechanics expert's testimony in the first trial.  

Review of this evidentiary ruling is not barred by that rule because, as explained above  


                                                           -16-	                                                     7016

----------------------- Page 17-----------------------

in Part IV.A.2, evidentiary rulings are context-dependent and made with an eye to how         

a case has developed. Moreover, although the superior court imposed a similar limitation                                    

on expert testimony in both trials, Central's expert in the second trial was not the same   

expert it retained in the first trial.  The fact that Central did not appeal a limitation on one   

expert's testimony in the context of one trial does not bar it from appealing a limitation         

on a different expert's testimony in the context of a different trial.  

                            3.	           The  superior  court's  limitation  on  the  scope  of  Central's  

                                          biomechanics expert's testimony was not an abuse of discretion.   

                            Both  parties  approach  this  issue  as  if  it  requires  us  to  rule  on  the  

admissibility of biomechanical expert testimony as a matter of law.  It does not.  The  


superior court qualified Dr. Scher as an expert in biomechanics, and Thompson does not  


appeal that ruling.  What is at issue in this appeal is whether the limitations the superior  

court placed on Dr. Scher's testimony amounted to an abuse of discretion.  


                            Alaska Rule of Evidence 702 permits qualified expert testimony that "will  


assist the trier of fact to understand the evidence or to determine a fact in issue."  We  

held in State v. Coon43 that the appropriate test for the admissibility of scientific expert  

testimony is the test set out by the United States Supreme Court in Daubert v. Merrell  


Dow Pharmaceuticals, Inc.                                     "[A]t its most basic level Daubert contains two essential  

requirements for the admission of scientific expert testimony:  it must be reliable and it  


                                      45   Adopting this approach to expert testimony is a means of ensuring  

must be relevant."  


              43            974 P.2d 386, 394 (Alaska 1999).  

              44            509 U.S. 579, 593-94 (1993).  

              45            Marron v. Stromstad , 123 P.3d 992, 1003 (Alaska 2005).  

                                                                                      -17-	                                                                              7016

----------------------- Page 18-----------------------



that trial courts have "greater flexibility"                   than was available under earlier approaches  

to exercise their "wide discretion in . . . admitting expert testimony."47  

                   Although the application of Rule 702 expresses a " 'liberal admissibility  


                                                  a trial court's power to qualify a witness as an expert  

standard' for expert testimony," 


in a particular area includes the power to exclude opinions that are beyond the witness's  


expertise.        Trial courts do not need to choose between admitting every opinion an  

expert witness seeks to introduce and excluding the witness altogether; instead, trial  



courts have the authority to limit expert witnesses' testimony to the areas within their  


                    Some courts have qualified biomechanical engineers as expert witnesses  


but prevented them from testifying about the specific causation of the injuries in the  



cases  at  bar.          At  least  one  appellate  court  has  found  that  a  trial  court  abused  its  

          46        Coon, 974 P.2d at 399.  

          47       Marron , 123 P.3d at 1001.  

          48       Id. at 1002 (quoting John's Heating Se                     rv. v. Lamb, 46 P.3d 1024, 1034  

(Alaska 2002)).  

          49       See, e.g., Levin v.        Dalva Bros., 459 F.3d 68, 78 (1st Cir. 2006); Bowers v.  

Norfolk S. Corp. , 537 F. Supp. 2               d   1343, 1376-77 (M.D. Ga. 2007) ("[E]ven though a  

proffered expert  may be qualified to render some opinions, the court may exclude other  

opinions if it finds those opinions to extend beyond the expert's area of expertise.").  

          50       See, e.g., State v. Guinn, 555 P.2d 530, 544 (Alaska 1976) (affirming trial  


court's exclusion of part of expert's proposed opinion testimony as "too speculative").  



                   See,      e.g.,    Rodriguez         v.    Athenium         House        Corp. ,      No.     11     Civ.  

5534(LTS)(KNF),  2013  WL  796321,  at  *4-6  (S.D.N.Y.  Mar.  5,  2013);  Morgan  v.  


Girgis, No. 07 Civ.1960(WCC), 2008 WL 2115250, at *6 (S.D.N.Y. May 16, 2008);  


Bowers , 537 F. Supp. 2d at 1377; Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d 470,  


501 n.14 (D.N.J. 2002); Schultz v. Wells, 13 P.3d 846, 849 (Colo. App. 2000); Benjamin  


                                                            -18-                                                       7016

----------------------- Page 19-----------------------


discretion by allowing a biomechanics expert to testify  without such a limitation on  


causation testimony.               In contrast, Central has not identified any case in which a trial  


court was held to have abused its discretion to control expert testimony by imposing a  


limitation like the one the superior court imposed on Dr. Scher or even by excluding a  

biomechanics expert altogether.  

                    The testimony Dr. Scher was permitted to present makes it clear that the  


superior court's limitation was not an abuse of discretion. The superior court was within  


its wide discretion to control expert testimony when it allowed Dr. Scher to testify about  


the forces that a person of Thompson's height and weight would have experienced in a  

collision between a truck like Thompson's and a truck like Central's that were both  


moving as they were on the day of the accident and to compare those forces to the forces  


that result from everyday activities.  The superior court was similarly within its wide  


v.  Appliance  &  Refrigeration  Servs.,  Inc.,  No.  CIV.A.  00C-07-006WLW,  2002  

WL 1308405, at *2 (Del. Super. June 7, 2002); Stockwell v. Drake, 901 So. 2d 974, 976  


(Fla. Dist. App. 2005); Cromer v. Mulkey Enters., Inc., 562 S.E.2d 783, 786 (Ga. App.  


2002); Santos v. Nicolos, 879 N.Y.S.2d 701, 704 (N.Y. Sup. 2009); Stedman v. Cooper,  

292 P.3d 764, 767 (Wash. App. 2012) (discussing other cases in which the biomechanics  

expert witness had testified);  cf. Eskin v. Carden, 842 A.2d 1222, 1230 (Del. 2004)  


(requiring a reliable "connection between the reaction of the human body generally to  


the forces generated by the accident and the specific individual allegedly injured" before  


a biomechanics expert can be permitted to testify about causation); Stedman, 292 P.3d  


at 769 (affirming exclusion of biomechanics expert who had "disavowed any intention  


of giving an opinion about whether [the plaintiff] got hurt in the accident" because "his  

clear message was that [the plaintiff] could not have been injured in the accident because  


the force of the impact was too small").  



                    See Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 305 (6th Cir. 1997) ("[The  

witness] is not a medical doctor who had reviewed [the plaintiff]'s complete medical  

history, and his expertise in biomechanics did not qualify him to testify about the cause  

of [the plaintiff]'s specific injuries.").  

                                                              -19-                                                         7016

----------------------- Page 20-----------------------


discretion to control expert testimony when it ruled that offering a reliable expert opinion  


as to how those forces affected Thompson himself would require a familiarity with his  


                                                                                                               We therefore  

medical history and physiology that exceeded Dr. Scher's expertise. 

affirm the superior court's rulings regarding its limitations on Dr. Scher's testimony.  

          C.        Additional Harm Jury Instruction  

                     1.        Factual and procedural background  

                    One of the two bases for our remand when this case was first before us was  

the superior court's failure to instruct the jury on the concept of additional harm.54                                         We  


explained that "[a] tortfeasor is generally liable for the consequences of any resulting  

injury, as well as any additional harm associated with medical care administered as an  


adjunct to the original injury."                  Because the failure to instruct the jury about Central's  

liability      "for     any     additional        harm       caused       by     [Thompson's]             doctors'       alleged  

misjudgments" might have resulted in the jury not awarding Thompson the full recovery  


he was due, we remanded.56  

                    At  the  second  trial  the  superior  court  rejected  the  Alaska  Pattern  Jury  


Instruction  on  additional  harm.                     The  court  pointed  out  that  the  pattern  instruction  

          53        Because we affirm the superior court's limitation on Dr. Scher's testimony         

we also affirm that it was not plain error for the court to allow Thompson's counsel to  

elicit the substance of that limitation during cross-examination and to reference that  

limitation during closing argument.  

          54        See Thompson v. Cooper, 290 P.3d 393, 401 (Alaska 2012).  



                    Id. (citing Lucas v. City of Juneau , 127 F. Supp. 730, 731-32 (D. Alaska  

1955), and RESTATEMENT (SECOND) OF TORTS   457 (1965)).  

          56        Id.  

          57        Alaska Civil Pattern Jury Instruction 20.12 reads (brackets in original):  


                                                               -20-                                                         7016

----------------------- Page 21-----------------------

appeared to limit recovery to additional harm that resulted from negligent medical care  

for the original injury, leaving out additional harm that might follow from non-negligent  

medical care.  It therefore crafted its own instruction on additional harm:  

                   A    negligent       party      is   generally       responsible        for    the  


                   consequences   of   any   resulting   injury,   as   well   as   any  

                   additional harm associated with medical care for the original  


                   injury.  If you find that defendants were the legal cause of  

                   plaintiff's injuries, defendants are also responsible for any  

                   additional harm resulting from the acts of others in providing  

                   medical  treatment  or  other  aid  that  plaintiff  reasonably  

                   required,  even  if  those  acts  were  negligently  performed.  

                   Negligence is the failure to use reasonable care.  

                   Central timely objected to this instruction on the ground that it did not  

adequately limit the scope of liability to injuries from medical treatment related to the  


original injury.  The superior court noted Central's objection but concluded that the  

instruction  it  had  written  accurately  captured  the  doctrine,  and  so  delivered  that  


instruction to the jury at the close of the trial.  


                   If  you  find  the  defendant  is  legally  responsible  for  the  

                   (accident),  you  may  award  the  plaintiff,  in  addition  to  

                   compensation for losses resulting from the original injury,  

                   (his) (her) losses resulting from:  

                   1.       [Aggravation of the original injury resulting from the  


                   failure   of   (insert   name   or   the   word   "others")   to   use  

                   reasonable care in providing medical or hospital treatment of  


                   the original injury.]  

                   2.       [Aggravation of the original injury resulting from the  


                   failure   of   (insert   name   or   the   word   "others")   to   use  

                   reasonable care in transporting the plaintiff to a place where  


                   medical treatment is available.]  

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----------------------- Page 22-----------------------

                   2.	       Any  error  in  the  additional  harm  jury  instruction  did  not  

                             prejudice Central. 

                    The superior court had to craft an additional harm jury instruction because  


the Alaska Pattern Jury Instruction on this point does not accurately capture our law.  We  


have held that the Restatement (Second) of Torts  457 states the law of liability for  

                        58	                                                         59 

additional harm,           including in the first appeal in this case.    The Restatement provides  



                    [i]f the negligent actor is liable for another's bodily injury, he  

                   is  also  subject  to  liability  for  any  additional  bodily  harm  


                   resulting from normal efforts of third persons in rendering aid  


                   which the other's injury reasonably requires, irrespective of  

                   whether  such  acts  are  done  in  a  proper  or  a  negligent  




In contrast, the pattern jury instruction only invites a jury to award damages "resulting  


from the failure of [a medical provider] to use reasonable care in providing medical or  


                                                                 Because the pattern instruction does not  

hospital treatment of the original injury." 

reach injuries caused by non-negligent medical care its scope is more limited than our  



                   Central argues that the second sentence of the superior court's instruction  


invited the jury to award more damages than are permitted by our law on additional  


harm.  That sentence instructed the jury that "defendants are also responsible for any  

          58       See Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209, 1217 (Alaska 1998);  

cf.  Turner  v.  Municipality  of  Anchorage,  171  P.3d  180,  184  &  n.8  (Alaska  2007)  

(describing   party's   request   for   an   additional   harm   jury   instruction   based   on  

Restatement  457).  

          59       See Thompson, 290 P.3d at 401 n.30.  

          60       RESTATEMENT (SECOND) OF TORTS   457 (1965).  

          61       Alaska Civil Pattern Jury Instruction 20.12.  

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----------------------- Page 23-----------------------

additional harm resulting from the acts of others in providing medical treatment or other   

aid that plaintiff reasonably required, even if those acts were negligently performed."   

Central's view is that, based on this instruction, the jury may have held Central liable for             

damages stemming from medical treatment Thompson required for reasons unrelated to                              

the accident.  


                        Only  by interpreting the second sentence of the instruction in isolation  

could a jury have misunderstood the law in the way Central claims.  The first sentence  

explained that "[a] negligent party is generally responsible for the consequences of any  

resulting injury, as well as any additional harm associated with medical care for the  


original injury."  Central was also able to clarify the applicable standard in its closing  


argument, when it told the jury that a plaintiff "can only recover additional harm for  


treatment for the original injury."  Although the instruction could have been more clear  

that  only  medical  care  related  to  the  original  injury  can  contribute  to  a  tortfeasor's  


liability, if we put ourselves in the position of the jury we cannot say that the lack of  

clarity in one sentence probably affected its judgment.62  

                        Because Alaska Civil Pattern Jury Instruction 20.12 is more limited than  


our law on additional harm, a trial court should not deliver it in cases where an additional  


harm instruction is appropriate. Instead, the trial court should instruct the jury that if the  


jury decides that the tortfeasor is legally responsible for the victim's injury, the tortfeasor  


is also responsible for any additional bodily harm to the victim resulting from the acts  


of others who provided medical care or other aid that the injury reasonably required,  

whether those acts were done in a proper or negligent manner.63  

            62          See, e.g., Roderer v. Dash , 233 P.3d 1101, 1110 (Alaska 2010).  

            63          See generally RESTATEMENT  (SECOND) OF  TORTS   457; Thompson, 290

P.3d  at  401; Lucas  v.  City  of  Juneau ,  127  F.  Supp.  730,  731-32  (D.  Alaska  1955);


                                                                        -23-                                                                   7016

----------------------- Page 24-----------------------

          D.       Continuance-Related Attorney's Fees  

                   1.       Factual and procedural background  

                   During discovery before the second trial, two of Central's depositions of  


Thompson's  witnesses  revealed  that  Thompson  had  earned  income  playing  poker.  


Although these depositions took place on August 5 and 15, 2013, Central agreed at an  


August 15 status hearing that September 23, 2013 would be an appropriate start date for  


the second trial.  Following that status hearing, the parties engaged in a discovery dispute  


about the disclosure of records of Thompson's poker playing, which culminated in a  


September   13   superior   court   order   compelling   Thompson   to   answer   Central's  

interrogatories.  That same day Central moved to continue the trial for several months  

so that it might have time to discover and prepare information related to Thompson's  

poker playing.  

                   On September 19, four days before the scheduled start of the trial, the  


superior court granted Central's motion for a continuance.  The court found that the  

evidence Central sought was relevant to Thompson's income, physical condition, and the  

extent of his injuries.  But it also found that Central knew about Thompson's poker  


playing prior to the August 15 status hearing at which the trial date was set and did not  


raise it before the court until August 30, nor move for a continuance until ten days before  

the scheduled start of trial.  To "minimize[]" any prejudice to Thompson, the superior  


court made Central responsible for the costs of the continuance and directed Thompson  

to provide an invoice of his costs.  

                   Thompson's attorney filed the invoice, which included 36 hours of trial  


preparation that would have to be repeated due to the continuance; although he was  


Judicial Council of California Civil Jury Instructions CACI No. 3929.  

                                                           -24-                                                        7016  

----------------------- Page 25-----------------------


working on a contingent-fee basis, he estimated that a reasonable hourly fee would be  


$295.   Central objected that attorney's fees were not a recoverable cost under Civil  


Rule 40(e) and that Thompson's attorney's rate was "inflated."  The superior court found  


that the continuance-related "attorney fees for 36 hours of work at the rate of $295 per  


hour [were] reasonable" and ordered Central to pay those fees as well as Thompson's  

unavoidable travel and lodging expenses from the September trial date.   

                   2.	       The  superior  court's  award  of  costs  and  fees  related  to  the  


                             continuance was within its powers under Civil Rule 40(e)(2) and  

                             was not an abuse of discretion.  


                    Central argues that the superior court abused its discretion by awarding  

costs at all when it continued the trial, exceeded its legal authority when it awarded  


attorney's  fees  under  Civil  Rule  40(e)(2),  and  abused  its  discretion  by  accepting  

Thompson's attorney's statement of his hours worked and reasonable hourly rate.  

                   The trial court exercises significant discretion in evaluating motions to  


continue a trial date.  Alaska Rule of Civil Procedure 40(e)(2) provides that if a "case is  


not tried upon the day set, the court in its discretion may impose such terms as it sees fit,  


and in addition may require the payment of jury fees and other costs by the party at  

whose request the continuance has been made." In this case the terms that the superior  


court saw fit to impose were shifting to Central Thompson's costs for travel, lodging, and  

his attorney's hours of trial preparation that would have to be duplicated.  

                    Central argues that because the superior court did find that there was good  

cause to continue the trial it was inappropriate for the court to financially "punish[]"  

Central and "reward[]" Thompson.  But although the superior court admonished Central  

for not bringing the issue of Thompson's poker earnings to the court's attention closer  

                                                            -25-	                                                      7016

----------------------- Page 26-----------------------

to the time in mid-August that Central first realized it would be an issue,64 the court's  


order granting  a continuance explained that the purpose of requiring Central to pay  


Thompson's  costs  and  fees  was  not  to  punish  Central  but  to  minimize  prejudice  to  


Thompson.  Central's motion for a continuance came only ten days before the scheduled  


start of the trial and was granted the Thursday before a scheduled Monday start.  In this  


context it was not an abuse of discretion to require the moving party to pay for these  


financial costs when it was responsible for the need to continue the trial so close to the  

date it was scheduled to begin.  


                       We have previously held that trial courts have legal authority to condition  


a grant of a motion for a continuance on the moving party's agreement to pay the non- 


moving party's attorney's fees.                           Rule 40(e)(2) gives trial courts the power to "impose  


such terms as it sees fit" and to "require the payment of jury fees and other costs" when  


granting a motion to continue a trial, and this power permits a court to hold a party that  

moves  for  a  continuance  shortly  before  trial  responsible  for  the  financial  burden  of  

duplicated trial preparation efforts.  

                       Central's   final   argument   challenging   the   fees   awarded   due   to   the  

continuance is that the superior court abused its discretion by accepting Thompson's  

counsel's statement that $295 per hour was a reasonable rate.  The superior court was  


well positioned to evaluate the local costs of counsel and the particularities of this case,  

            64         Cf. Greenway v. Heathcott, 294 P.3d 1056, 1067 (Alaska 2013) ("[A] party     

who seeks to continue a case for trial must show that he acted with due diligence upon           

the grounds for which continuance is sought." (alteration in original) (quoting                                                       Azimi v.  

Johns , 254 P.3d 1054, 1061 (Alaska 2011))).  



                       See Varilek v. McRoberts, Mem. Op. & J. No. 1321, 2008 WL 5192385,  

at *6-7 (Alaska Dec. 10, 2008); Mely v. Morris, 409 P.2d 979, 980 (Alaska 1966).  

                                                                      -26-                                                                 7016

----------------------- Page 27-----------------------

and it did not abuse its discretion by accepting Thompson's counsel's estimate of $295  


as an appropriate hourly rate.                           

            E.          Offer Of Judgment Attorney's Fees  

                        The superior court granted Thompson attorney's fees under Civil Rule 68  


as a prevailing party who received a judgment more favorable than his rejected offer of  


judgment.  Because we remand for a new trial, that attorney's fee award is necessarily  

vacated.  But because the propriety of the superior court's award calculation method  


could reappear as an issue in this case on remand, and because our view has implications  

for  the  parties'  conduct  during  the  ensuing  proceedings,  we  address  the  proper  


application of Rule 68 awards in cases where the offeror is represented on a contingent  


fee basis.            

                        1.          Factual and procedural background  


                        After  our  initial  remand  Thompson  made  an  offer  of  judgment  of  


 $1,020,000  pursuant to  Civil Rule  68(a).                                    Central did  not accept the  offer.                            At  the  


conclusion of the trial the jury returned a verdict of $1,458,430 for Thompson, which  

was "at least 5 percent less favorable to [Central] than the offer."68  

                        Thompson moved for attorney's fees under Civil Rule 68(b).  Thompson's  

motion included his contract with his attorney, which established a contingency fee of  

            66          Cf. Nautilus Marine Enters., Inc. v. Exxon Mobil Corp.                                           , 332 P.3d 554, 557   

n.11   (Alaska 2014) (noting the $375 and $325 hourly rates of two Anchorage-based                            


            67          Cf. ASRC Energy Servs. Power & Commc'ns, LLC v. Golden Valley Elec.  

Ass'n ,  267  P.3d  1151,  1168  (Alaska  2011)  (considering  the  propriety  of  a  vacated  

Rule 68 attorney's fees award "[t]o assist the parties in evaluating the case on remand  


and to avoid an unnecessary second appeal of the issue").  

            68          See Alaska R. Civ. P. 68(b).  

                                                                          -27-                                                                    7016

----------------------- Page 28-----------------------

45%  of  Thompson's  gross  recovery.                           Thompson  maintained  that  because  Civil  


Rule 68(b)(2) made Central responsible for "50 percent of the offeror's reasonable actual  


attorney's fees," he was entitled to a Rule 68 award of 22.5% of the gross judgment  


                    The  superior  court  first  rejected  Thompson's  argument.    It  ruled  that,  


contrary to an argument Central advanced, contingency fee agreements can be a proper  


basis for Rule 68 attorney's fee awards, but that in this case Thompson had failed to  


provide any principle by which the court could "accurately calculate the percentage of  


fees incurred after the settlement offer date," as Rule 68 requires.  For that reason it  

awarded Thompson attorney's fees under Civil Rule 82 rather than Civil Rule 68.  


                    Thompson moved for reconsideration and attached to his motion printouts  


from a timekeeping program his attorney used to record his efforts.  These printouts  

suggested  that  Thompson's  attorney  had  worked  on  the  case  for  60  hours  after  the  


remand but before the offer of judgment and for 573 hours between the offer of judgment  


and the end of trial.  The superior court granted reconsideration and amended its final  


judgment  to  award  Thompson  attorney's  fees  under  Civil  Rule  68.    It  ruled  that  


Thompson's documentation was sufficient to demonstrate that 90.5% of his attorney's  


post-remand efforts had occurred after the offer of judgment was rejected.  And on this  

basis  the  superior  court  awarded  Thompson  Rule  68  attorney's  fees  calculated  by  

multiplying Thompson's gross recovery by 45% (the total contingent fee), then by 90.5%  


(the  percentage  of  the  attorney's  efforts  that  came  after  the  offer  of  judgment  was  


rejected), and then by 50% (the percentage of attorney's fees that Civil Rule 68(b)(2)  



          69        The  superior  court  subtracted  the  continuance-related  attorney's  fees  

already awarded under Civil Rule 40.  Although our remand vacates the Civil Rule 68  



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----------------------- Page 29-----------------------


                    2.	      Civil Rule 68  attorney's fee awards must be based on actual  

                             hours worked after an offer of judgment is rejected, even when  

                             a party is represented on a contingent fee basis.  


                    Although only Central appeals the award, both parties fault the superior  


court's method of calculation.  Central argues that because a contingent fee "cannot be  


apportioned from the date the offer was made" it is an improper basis for an award under  


Civil Rule 68(b), which requires payment of "reasonable actual attorney's fees incurred  

by the offeror from the date the offer was made."  Thompson looks to the same feature  

of contingent fee arrangements and the same language from Rule 68(b) and draws the  


opposite conclusion:  that in cases featuring contingent fees the entire fee is "incurred"  


at the time a judgment is entered, and therefore it is inappropriate to apportion it based  

on the hours worked before and after the offer.  


                    " '[T]he purpose of Rule 68 is to encourage pretrial settlement' so as to save  

                                                                                                       70   It serves this  

both the litigants and the state from the time and expense of a trial."                                         

purpose by "rais[ing] the cost of litigation in the offeree's risk-benefit analysis, thus  


making settlement more attractive."     But rational risk-benefit analysis is only possible  


if parties that receive offers of judgment are able to accurately estimate the offeror's  


likely  fees.    When  those  fees  are  entirely  determined  by  a  private  contingent  fee  


agreement between the offeror and her attorney, the offeree cannot rationally analyze the  

risks and benefits of litigation.  


attorney's fee award, it does not disturb the Civil Rule 40 award, which was not based  


on Thompson's status as a prevailing party.  

          70       Froines v. Valdez Fisheries Dev. Ass'n (Froines II), 175 P.3d 1234, 1237  


(Alaska 2008) (quoting Mapco Express, Inc. v. Faulk , 24 P.3d 531, 542-43 (Alaska  



          71       Id. (quoting Mackie v. Chizmar , 965 P.2d 1202, 1205 (Alaska 1998)).  

                                                             -29-	                                                      7016

----------------------- Page 30-----------------------

                    As  both   Central  and  Thompson  note,  contingent  fee  agreements  also  

complicate a superior court's determination of what fees were "incurred by the offeror       

                                                    72   This case illustrates the point.  The superior court  

from the date the offer was made."     

calculated that 90.5% of Thompson's attorney's hours on the case occurred after the  


offer was made.  But it limited its view to the time spent on the case following our initial  


remand.  The superior court did not explain why the hours spent on the first trial and  


appeal were not relevant to determining what percentage of Thompson's attorney's effort  


came after the offer of judgment, even though Thompson had cited the procedural history  


of   the   case   as   a   reason   the   45%   contingency   fee   agreement   was   reasonable.  


Inconsistencies like this are likely if the superior court is forced to artificially apportion  

contingent fees into portions earned "before" and "after" offers of judgment.  


                    We have previously affirmed Rule 68 attorney's fee awards determined by  


the  actual  hours  an  offeror's  attorney  worked  on  the  matter  following  the  offer  of  

judgment  even  when  the  attorney  represented  the  offeror  on  a  contingent  basis.    In  

Okagawa  v.  Yaple  we  rejected  the  argument  that  the  text  of  Rule  68  "restricts  an  



attorney's fees calculation to what the prevailing party is obligated to pay its attorney." 

Instead, we held that "in certain situations attorney's fees awards may be calculated by  


multiplying  a  reasonable  hourly  rate  by  the  attorney's  time  without  necessarily  


                                                                                                74   We thus affirmed a  

considering how much the party actually owes the attorney."      

Rule  68  award  based  on  the  hours  the  offeror's  attorney  worked  on  the  case  and  a  


reasonable hourly rate, notwithstanding the fact that the offeror's attorney worked on a  


contingent basis.  

          72        Alaska R. Civ. P. 68(b).  

          73        234 P.3d 1278, 1280 (Alaska 2010).  

          74        Id.  

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                   Thompson   argues   that   our   decision  in  Roderer  v.  Dash                      approved  of  

Rule 68 awards based on contingency fee agreements.  The superior court agreed with   

this  reading  of  Roderer ,  and  even  our  decision  in  Okagawa  described  Roderer  as  


"suggesting that using contingency fee amount[s] as reasonable actual attorney's fees for  


a Rule 68 award was permissible."                     But in Roderer we did not decide this question.  

Instead, we held that the superior court had erred by reducing the offeror's Rule 68  

award by the percentage of total hours the offeree's attorney had worked on the case  

                                                        77  Because we held that the offeree had invited  


before the offer of judgment was made.  

this error we did not directly resolve whether a contingent fee agreement is a proper basis  


for a Rule 68 award of attorney's fees.  

                   In light of the purposes of Civil Rule 68 and our precedent interpreting its  

attorney's fee rules, it was error for the superior court to base the award on Thompson's  


contingency fee agreement.  To effectuate the purposes of the Rule, any attorney's fees  

awarded  under  Civil  Rule  68(b)  must  be  determined  by  multiplying  the  hours  the  

offeror's attorney or attorneys worked on the matter after the offer of judgment by a  

reasonable billing rate.   


                   When the offeror is represented on a contingent fee basis the superior court  


must, with the benefit of briefing from the parties, determine the reasonable hourly rate.  


We have previously advised that "[t]he factors listed in Alaska Bar Rule 35(a) may be  


                                                                                                                and  we  

helpful  to  assess  the  reasonableness  of  counsel's  requested  hourly  rate," 

         75        233 P.3d 1101 (Alaska 2010).  

         76        Okagawa, 234 P.3d at 1281 n.21.  

         77        Roderer , 233 P.3d at 1113-14.  

         78        Valdez Fisheries Dev. Ass'n v. Froines (Froines III), 217 P.3d 830, 833  


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specifically note that one of the factors that Rule 35(a) considers is "whether the fee is  

fixed or contingent."79  We have also previously noted that "the 'contingency factor' can  


reduce the disincentive for attorneys to represent claimants" who could not afford to pay  



hourly rates.         This is an important function of contingent fee agreements and may mean,  


in the context of Rule 68 litigation, that a reasonable hourly rate for an attorney who is  


only paid if her client recovers a judgment is higher than the rate of an equally talented  


attorney whose fee is due win or lose.                       Making such a determination is within the trial  

court's  "considerable  discretion  in  determining  the  amount  of  fees  that  should  be  

considered reasonable."82  

V.        CONCLUSION  


                    We REVERSE the superior court's ruling refusing to permit any evidence  


that Thompson was assaulted after his surgery, and we REMAND for a new trial.  We  


therefore VACATE the award of attorney's fees under Civil Rule 68.  We AFFIRM the  


n.17 (Alaska 2009).  

          79        Alaska Bar R. 35(a)(8).  

          80        State, Dep't of Revenue v. Cowgill, 115 P.3d 522, 524 (Alaska 2005) (citing   

Wise Mech. Contractors v. Bignell, 718 P.2d 971, 975 (Alaska 1986)).  

          81        See id. at 524-25 (approving an hourly billing rate for a plaintiff's attorney  


that exceeded the highest rates charged by defense attorneys in the same matter);  Wise,  


718 P.2d at 975 n.9 ("An example illustrates the point.  If an attorney wins three out of  


every five cases and is limited to the ordinary hourly rate, say $100, on his victorious  

cases, and receives no fee in the cases which are lost, his overall hourly compensation  

is $60 rather than $100, assuming the same amount of time is spent in each case.").   



                    Kenai Chrysler Ctr., Inc. v. Denison , 167 P.3d 1240, 1261 (Alaska 2007);  


see also Froines III, 217 P.3d at 833 (directing the trial court to "exercise its discretion  

to determine whether the fees claimed are objectively reasonable").  

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superior  court's  ruling  limiting   the  testimony  of  Dr.  Scher,  its  additional  harm  jury  

instruction, and its award of attorney's fees under Civil Rule 40.  

                                                -33-                                         7016

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