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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brandner v. Pease (11/25/2015) sp-7066

Brandner v. Pease (11/25/2015) sp-7066

         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 D. BRANDNER,                                     )  

                                                          )    Supreme Court No. S-15633  

                           Appellant,                    )  

                                                         )     Superior Court No. 3AN-11-10914 CI  

         v.                                              ) 

                                                          )   O P I N I O N  

ROBERT J. PEASE, M.D.,                                    )  

PROVIDENCE ALASKA                                         )   No. 7066 - November 25, 2015  

ANESTHESIA GROUP, and                                     )  

PROVIDENCE ALASKA MEDICAL                                 )  

CENTER,                                                   )  


                           Appellees.                    )  


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

                  Judicial District, Anchorage, Patrick J. McKay, Judge.  

                  Appearances:  Charles  W.  Coe,  Law  Office  of  Charles  W.  

                  Coe, Anchorage, for Appellant.  Roger F. Holmes, Biss &  

                  Holmes, Anchorage, for Appellees Robert J. Pease, M.D. and  

                  Providence Alaska Anesthesia Group. Robert J. Dickson and  



                  Christopher   J.   Slottee,   Atkinson,   Conway   &   Gagnon,  

                  Anchorage, for Appellee Providence Alaska Medical Center.  


                  Before: Fabe, Winfree, and Bolger, Justices.  [Stowers, Chief  


                  Justice, and Maassen, Justice, not participating.]  

                  BOLGER, Justice.  

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


                   A    cardiac     patient     who      underwent         open     heart     surgery      sued     the  


anesthesiologist  and  medical  providers  involved  in  the  surgery.    The  superior  court  

dismissed the patient's claims on summary judgment, concluding that the patient had  

offered no admissible evidence that the defendants breached the standard of care or  

caused  the  patient  any  injury.    On  appeal  the  patient  relies  on  his  expert  witness's  


testimony that certain surgical procedures were suboptimal and that patients generally  


tend to have better outcomes when other procedures are followed. But we agree with the  


court's conclusion that this testimony was insufficient to raise any issue of material fact  

regarding whether the defendants had violated the standard of care in a way that caused  

injury to the patient.  We also affirm the court's orders involving attorney's fees and  



         A.        Heart Surgery  


                   Dr. Michael Brandner suffered a heart attack in September 2009 and was  


admitted  to  Providence  Alaska  Medical  Center  (the  Medical  Center)  for  emergency  

bypass  surgery.    Dr.  Kenton  Stephens  was  the  cardiac  surgeon  who  performed  the  


operation; Dr. Robert J. Pease administered anesthesia.  Dr. Brandner is also a medical  

doctor, licensed to practice plastic and reconstructive surgery.   

                   The   surgery   lasted   six   hours.      At   the   outset   Dr.   Pease   intubated  


Dr. Brandner on his second attempt and used the drug propofol to induce anesthesia.  

Shortly thereafter Dr. Brandner's blood pressure precipitously dropped, but according  

to Dr. Stephens, Dr. Brandner did not suffer complete  cardiac arrest.  Dr. Stephens  

performed CPR while additional drugs were administered to counteract the drop in blood  


pressure.    Dr.  Brandner's  blood  pressure  ultimately  stabilized,  and  the  operation  


                                                          -2-                                                    7066

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


                          Dr.       Pease          then        placed           a     transesophageal                    echo         (TEE)           probe          in  


Dr.  Brandner's  esophagus  to  take  ultrasonographic  pictures  of  his  heart  and  obtain  

diagnostic information about its condition.  The TEE probe soon failed, and Dr. Pease  

then  notified  Dr.  Stephens  of  this  failure.    According  to  Dr.  Stephens's  deposition  


testimony, he responded by saying, "Okay, well, I'm pressing on with the operation, do  

what you can."  The TEE probe was not replaced.  

                          Dr. Stephens performed a six-vessel bypass.  Dr. Brandner survived the  


operation and was discharged 12 days later.  In his notes from a follow-up appointment  

about  a  week  after  discharge,  Dr.  Stephens  indicated  that  "[Dr.  Brandner]  has  been  


progressing quite well."  Dr. Stephens also indicated that Dr. Brandner could return to  


full  activity  within  six  weeks  of  surgery  and  authorized  him  to  return  to  his  plastic  


surgery practice.  In March 2011 Dr. Stephens wrote a letter on Dr. Brandner's behalf  


indicating  that  "[h]is  recovery  has  been  quite  exemplary"  and  that  "he  had  steadily  

returned to practice."  

             B.           Proceedings  


                          In  September  2011  Dr.  Brandner  filed  a  complaint  against  Dr.  Pease,  

Providence  Anchorage  Anesthesia  Group  (the  Anesthesia  Group),  and  the  Medical  


Center.   Dr. Brandner alleged that  "[t]he administration of anesthesia performed by  


Dr. Robert J. Pease was below the standard of care, . . . was negligently and recklessly  

performed[,]" and "cause[ed] [Dr. Brandner] to sustain permanent injuries."  He also  


alleged that the Anesthesia Group and the Medical Center were vicariously liable for  


Dr.  Pease's  actions.    Dr.  Brandner  alleged  that  he  "suffered  severe  and  permanent  

             1            Dr. Pease and the Anesthesia Group are jointly represented by the same           

firm; the Medical Center has separate representation and has filed independent briefing.                              

But because these three parties' interests, arguments, and evidence are generally aligned,            

we usually refer to them together as "the providers" throughout.  

                                                                                 -3-                                                                           7066

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

injuries, loss of past and future wages, . . . [and] loss of enjoyment of life[,]" and that he  

"incurred  past  and  future  medical  expenses[.]"    In  response  to  interrogatories,  


Dr. Brandner  specifically alleged "[i]njury to and loss of myocardium with severely  

compromised cardiac function and reserve"; "[i]njury to brain with noticeable loss of  

short term memory function as demonstrated on testing"; and "[s]evere de-conditioning,  

loss     of   calcium,        with     associated        muscoloskeletal           problems,         displaced       sternal  


incision/wound  with  prolonged  healing  and  continued  pain,  as  well  as  hemorrhoids  

requiring surgery and with ongoing problems."  

                    In  February  2012  the  providers  jointly  moved  for  summary  judgment,  


arguing that the "lawsuit must be dismissed with prejudice unless [Dr. Brandner] can  


produce  an  affidavit  from  a  qualified  expert  claiming  Dr.  Pease  failed  to  meet  the  

standard of care, [and] this failure caused or contributed to his injuries."  The motion was  

supported   by   the   affidavit   of   a   board-certified   anesthesiologist   specializing   in  


cardiovascular anesthesia who attested that "[t]he medical care provided by Dr. Pease to  

[Dr. Brandner] was appropriate in all respects and met the [s]tandard of [c]are."  


                    In July 2012 Dr. Brandner submitted the affidavit of Dr. Steven Yun, a  

board-certified  anesthesiologist,  in  connection  with  his  opposition  to  the  providers'  


motion for summary judgment. Dr. Yun attested that the "treatment, care[,] and services  


provided by . . . Dr. Robert Pease[] were suboptimal and contributed to [Dr. Brandner's]  

prolonged  and  delayed  recovery."    Specifically,  Dr.  Yun  stated  that  "in  all  medical  


probability,"  (1) "[p]ropofol was not the optimal choice" of induction agent and its use  

"led directly to . . . [Dr.] Brandner's cardiac arrest,"2 (2) the "difficulty in securing  

[Dr.] Brandner's airway . . . directly contributed to [his] cardiac arrest," and (3) the  



                    As noted above, Dr. Stephens denied that Dr. Brandner suffered complete  

cardiac arrest.  

                                                             -4-                                                           7066  

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

"amount of damage to [Dr. Brandner's] heart, [the] time to hook up the by-pass machine,         

[and] the extent of surgery performed would have been reduced by the use of a TEE   

[probe]   throughout  his  surgery."    Following  the  submission  of  this  affidavit,  the  

providers withdrew their summary judgment motions.  


                     In September 2013 Dr. Brandner was indicted in federal court on seven  

                                3   The grand jury charged him with attempting to conceal millions  


counts of wire fraud.  

of dollars in assets from his wife during divorce proceedings.  

                     In  January  2014  the  parties  deposed  Dr.  Yun.    During  the  deposition  


Dr. Yun admitted that although he was a practicing anesthesiologist, he had not practiced  


cardiovascular anesthesia or used a TEE probe since about 2001.  He also stated that he  


was not qualified under the current standard of care to practice cardiovascular anesthesia  

because he lacked certification in the use of TEE probes.  


                     With regard to Dr. Brandner's surgery, Dr. Yun reiterated his opinion that  


the use of propofol and the failure to intubate Dr. Brandner on the first attempt were  


"suboptimal," but he refused to say that either fell below the standard of care.  Dr. Yun  


did state that the failure to replace the TEE probe fell below the standard of care and that  


cardiac patients generally tend to have better outcomes when a TEE probe is used during  


surgery.  But he repeatedly declined to draw any conclusions about whether the lack of  


a TEE probe caused harm to Dr. Brandner specifically, explaining, "I think that goes a  

little beyond my area of expertise."  Dr. Yun also confirmed that his affidavit, which  


stated that Dr. Brandner's outcome would have been improved by the use of a TEE probe  


throughout surgery, was based on his "generalized understanding" of the utility of TEE  

probes - not his specific understanding of Dr. Brandner's situation.  

          3          See 18 U.S.C.  1343 (2012).  

                                                                 -5-                                                               7066  

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

                     In  February  2014  the  providers  jointly  moved  to  exclude  Dr.  Yun's  


testimony, arguing that Dr. Yun was not a qualified expert in the field of cardiovascular  


anesthesia.  While this motion was still pending, and less than a month before trial was  


set  to  begin,  Dr.  Brandner  requested  a  continuance.                                 Citing  the  ongoing  criminal  


proceedings against him, Dr. Brandner argued that "he [would not be able to] testify []or  

explain his circumstances" and that "exercising his right to remain silent is prejudicial  


even in a civil case" because "[i]f he is acquitted and/or the charges are dismissed, his  


current criminal charges become irrelevant and . . . [in]admissible under Evid[ence] Rule  


404(b)."  He also acknowledged the providers' motion to exclude Dr. Yun and stated that  

"[i]f [Dr. Yun] is struck from being a witness, the trial cannot proceed."  

                     The providers opposed Dr. Brandner's request for a continuance.   The  


Medical Center argued that postponing the trial was unnecessary because Dr. Brandner's  

                                                                     4   "The [criminal proceedings] . . . do not  

"substantial rights" would not be violated:    

prevent [Dr. Brandner] from putting on his evidence concerning his . . . surgery, the  


results from the surgery, his expert's opinions (to the extent that [the] trial court allows  


that testimony), and his testimony on damages" - the essential elements of his case.  

The Medical Center also argued that Dr. Brandner's request was dilatory because his  

indictment had been issued five months before and he could have moved to continue trial  


at any time during the intervening months.  The Anesthesia Group noted that it had hired  

an  additional  physician  "at  great  expense  .  .  .  to  cover  the  two  weeks  Dr.  Pease  is  

expected to be in trial" and that two out-of-state expert witnesses had already rearranged  

their schedules and purchased tickets to attend trial in Anchorage.  

           4         See Wagner v. Wagner, 299 P.3d 170, 175 (Alaska 2013) ("A refusal to     

grant a continuance constitutes an abuse of discretion 'when a party has been deprived   

of a substantial right or seriously prejudiced.' " (quoting                                 Siggelkow v. Siggelkow, 643  

P.2d 985, 987 (Alaska 1982))).  

                                                                   -6-                                                            7066

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

                    Although  the  superior  court  called  Dr.  Brandner's  motion  to  continue  

"dilatory,"   "inexplicable,"   and   "inconvenien[t]    [to]   opposing   litigants,   opposing  

attorneys, and the [c]ourt," the court "reluctantly" granted his request.  But the court  


ordered  Dr.  Brandner  to  pay  the  actual  out-of-pocket  costs  the  Anesthesia  Group  


incurred as a result of postponing trial.  The court later reconsidered this costs award on  


Dr. Brandner's motion and confirmed its decision to award costs. But the court reduced  

the award after learning that the Anesthesia Group's billings included costs that were  

avoidable  since  Dr.  Pease  was  still  available  to  work,  including  "travel,  hotels,  car  


rentals,     per     diem,      overtime,"        and     other      costs     associated       with      the    substitute  

anesthesiologist.    In  addition  the  court  granted  the  providers'  motion  to  exclude  


Dr. Yun's testimony after finding that Dr. Yun was not a practicing, board-certified  

cardiovascular anesthesiologist.  Dr. Brandner then asked the court to reconsider its  

exclusion  of  Dr.  Yun's  testimony,  contending  that  "there  is  no  such  thing  as  board  


certification  in  cardiovascular  anesthesia  and  use  of  the  TEE  probe  is  allowed  by  

anesthesiologists without any certification."  

                    In March the providers again moved for summary judgment, supporting  

their motions with four affidavits.  Two of these affidavits were from board-certified  


anesthesiologists who asserted that Dr. Pease's actions met the standard of care.  In their  


motions the providers argued that, because the court had excluded Dr. Yun's testimony,  


Dr. Brandner had no expert to testify about the appropriate standard of care.   In the  

alternative  they  argued  that  Dr.  Yun's  deposition  testimony,  even  if  admitted  in  its  


entirety,  did  not  raise  any  genuine  issues  of  material  fact,  because  there  was  "no  


admissible evidence that any of [Dr. Pease's] actions [including the failure to replace the  

faulty TEE probe] caused injury to Dr. Brandner."  

                    The  superior  court  granted  the  providers'  summary  judgment  motions.  


Although acknowledging that its previous order excluding Dr. Yun was based on the  

                                                             -7-                                                        7066

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

erroneous  premise  that  Alaska  recognizes  board  certification  for  the  subfield  of  

cardiovascular anesthesia, the court nonetheless excluded Dr. Yun's testimony.  The  


court also ruled that even if Dr. Yun were qualified as an expert witness, summary  


judgment would still be warranted because Dr. Yun did not causally connect any of  

Dr. Pease's allegedly negligent acts to any of Dr. Brandner's claimed injuries.  

                   The providers moved for Alaska Civil Rule 82 attorney's fees and costs.  

The  superior  court  granted  their  requests  but  reduced  the  awards  slightly  from  the  

requested amount.  

                   Dr. Brandner appeals.  



                   "We review rulings on motions for summary judgment de novo, 'reading  

the record in the light most favorable to the non-moving party and making all reasonable  

inferences in its favor.' "5  "We 'will affirm a grant of summary judgment when there are  

no genuine issues of material fact and the moving party is entitled to judgment as a  



matter of law.' "    "We may affirm the superior court on any basis supported by the  

record, even if that basis was not considered by the court below or advanced by any  



party."   "We  review  a  trial  court's  fact-based  determinations  regarding  whether  

          5        ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d  

 114,  122  (Alaska  2014)  (quoting  Witt v. State, Dep't  of  Corr.,  75  P.3d  1030,  1033  


(Alaska 2003)).  

          6        Maness v. Daily , 307 P.3d 894, 900 (Alaska 2013) (quoting Russell ex rel.  


J.N. v. Virg-In, 258 P.3d 795, 801-02 (Alaska 2011)).  

          7        Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008) (quoting Gilbert M.  


v. State, 139 P.3d 581, 586 (Alaska 2006)).  

                                                           -8-                                                     7066

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



attorney's  fees  are  reasonable  for  an  abuse  of  discretion."   However,  "[w]e  review  

de novo whether the superior court correctly applied the law in awarding attorney's  



          A.	       The  Superior  Court  Did  Not  Err  By  Granting  The  Providers'  

                    Summary Judgment Motions.  

                   In  a  suit  alleging  negligence  or  willful  misconduct  by  a  health  care  


provider,  AS  09.55.540(a)  requires  a  plaintiff  to  prove  by  a  preponderance  of  the  


                             (1) the degree of knowledge or skill possessed or the  


                   degree of care ordinarily exercised under the circumstances,  


                    at the time of the act complained of, by health care providers  


                   in the field or specialty in which the defendant is practicing;  


                             (2)  that  the  defendant  either  lacked  this  degree  of  

                   knowledge or skill or failed to exercise this degree of care;  


                             (3) that as a proximate result of this lack of knowledge  


                    or  skill  or  the  failure  to  exercise  this  degree  of  care  the  


                   plaintiff suffered injuries that would not otherwise have been  



"In medical malpractice actions . . . the jury ordinarily may find a breach of professional  


duty only on the basis of expert testimony."10  

          8        Froines v.  Valdez Fisheries Dev. Ass'n , 175 P.3d 1234, 1236 (Alaska  

2008) (citing Marron v.  Stromstad , 123 P.3d 992, 998 (Alaska 2005)).  

          9        Dearlove v. Campbell , 301 P.3d 1230, 1233 (Alaska 2013) (citing Glamann  

v. Kirk , 29 P.3d 255, 259 (Alaska 2001)).  

          10        Trombley v. Starr-Wood Cardiac Grp., PC                      , 3 P.3d 916, 919 (Alaska 2000)

(omission in original) (quoting Kendall v. State, Div. of Corr.                        , 692 P.2d 953, 955 (Alaska


                                                             -9-	                                                      7066

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

                  The superior court granted summary judgment in favor of the providers  


under two independent rationales.  First, the court concluded that Dr. Brandner's only  


expert, Dr. Yun, was not qualified to testify as an expert in cardiovascular anesthesia.  


Second, the court concluded that, even if Dr. Yun were qualified to testify as an expert  

in  cardiovascular  anesthesia,  his  testimony  "did  not  make  a  clear  causal  connection  

between the alleged malpractice and Dr. Brandner's injuries under [any] of the stated  

theories of liability."   

                  Dr. Brandner contests both of these conclusions.  With respect to the court's  

second conclusion, Dr. Brandner argues that if Dr. Yun had been found qualified to  

testify as an expert in cardiovascular anesthesia, then there would have been genuine  


issues of material fact regarding all three alleged instances of malpractice:  the use of  

propofol,  the  two  intubation  attempts,  and  the  failure  to  use  a  working  TEE  probe  

throughout the surgery.  

                   1.	     Dr. Brandner produced no expert testimony demonstrating that  

                            the  standard  of  care  had  been  breached  with  regard  to  his  

                            propofol and intubation malpractice claims.  

                  Dr. Brandner contends that"[t]here is a genuine dispute of fact as to whether  

the use of the drug propofol and the second intubation attempt were suboptimal ; taken  

together these [support] Dr. Yun's conclusion that [Dr.] Pease's actions fell below the  

standard of care."  (Emphasis added.)  But Dr. Brandner mischaracterizes Dr. Yun's  


testimony.  In his affidavit Dr. Yun stated only that Dr. Pease's failure to use a working  

TEE probe during surgery fell below the standard of care; he did not make the same  


claim about Dr. Brandner's propofol and intubation theories or about Dr. Pease's actions  


generally.  And in his deposition testimony Dr. Yun explicitly stated that he "[could not]  

         10       (...continued)  


                                                         -10-	                                                     7066  

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

make the argument that [the use of propofol] was below the standard of care" and that  


taking more than one attempt to intubate a patient was "suboptimal and . . . not ideal, but  


not necessarily below the standard of care."  Under AS 09.55.540(a) the providers could  


not have been held liable for either of these alleged acts of malpractice on the basis of  

Dr. Yun's testimony.  

                    2.	       Dr. Brandner produced no evidence to support his claim that  


                              the failure to use a working TEE probe throughout the surgery  

                              caused his specific injuries.  


                    Dr. Yun did testify that Dr. Pease's failure to use a working TEE probe -  


and the Medical Center's alleged failure to have a working backup probe on hand - fell  

below the standard of care.  But the superior court concluded that "Dr. Yun failed to  

causally connect the TEE shutdown and the physician's decision to proceed without a  

spare with any injury suffered by [Dr.] Brandner."  We agree.  


                    Dr. Brandner argues that Dr. Yun, in his deposition, "describe[d] the effects  


[that] the [defendants'] negligence caused to [Dr.] Brandner."  Dr. Brandner cites several  


instances in Dr. Yun's deposition testimony where Dr. Yun suggested that Dr. Brandner  


probably would have had a better outcome if a TEE probe had been used.  But when  


these statements are read in the context of Dr. Yun's full testimony, it becomes clear that  

Dr. Yun was opining only that patients in general  tend to have better outcomes when a  


TEE probe is used - not that the failure to use a working TEE probe throughout the  

surgery harmed Dr. Brandner specifically.  Dr. Yun testified elsewhere in the deposition:  


"I can't make any specific conclusions.  I can only say, in general, that patients who have  


a TEE probe used in their cardiac surgery tend to do better than those who do not."  And  


when asked whether it was "outside the scope of [his] training and expertise to be able  


to testify about the impact the surgery had on [Dr.] Brandner in his particular case,"  

Dr. Yun simply replied, "Yes."  

                                                              -11-	                                                        7066

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

                    As a matter of statistical probability, evidence that patients generally do  


better with a given treatment does not necessarily provide causal support that a specific  


patient will do better.  The United States Court of Appeals for the First Circuit recently  

examined the logical pitfall inherent in attempting to prove causation with regard to a  

specific patient based on studies demonstrating correlation among patients in general.  


An expert witness testified that the chances of a patient's recovery increased by over  


50% when given a drug, and concluded that therefore, "the plaintiff more likely than not  

would have recovered had he received the drug." But as that court explained,  


                    this reasoning is structurally unsound . . . .  When a person's  

                    chances of a better outcome are 50% greater with treatment  

                    (relative to the chances of those who were not treated), that  


                    is not the same as a person having a greater than 50% chance  


                    of experiencing the better outcome with treatment.  The latter  

                    meets the required standard for causation; the former does  




                    In the present case, Dr. Yun stated that "patients who have a TEE probe  


used in their cardiac surgery tend to do better than those who do not" - in other words,  

the  chances  of  a  better  outcome  increase  when  a  TEE  probe  is  used.    But  Dr.  Yun  

provided no specific figures about what percentage of patients do better, in which ways,  


and by how much. Without this information, Dr. Yun's statements about general patient  


outcomes provides no support for Dr. Brandner's specific claim that his recovery would  

have been better had a working TEE probe been used throughout his surgery.  


                    Here the Anesthesia Group presented an expert who stated that the failure  

to use a working TEE probe had no effect on the surgery,  and Dr. Yun declined to offer  

testimony to the contrary.  The uncontested evidence that the lack of a working TEE  



                    Samaan v. St. Joseph Hosp., 670 F.3d 21, 33 (1st Cir. 2012) (emphasis  


                                                             -12-                                                           7066  

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

probe  had  no  impact  on  Dr.  Brandner's  specific  surgery  overrides  any  marginal  

relevance of Dr. Yun's testimony about patient outcomes in general.  


                    For these reasons the superior court was correct to conclude that Dr. Yun's  


testimony provided no evidence that the failure to use a working TEE probe was the  


likely  cause  of  Dr.  Brandner's  alleged  injuries.    Dr.  Brandner  pointed  to  no  other  


evidence of causation in his opposition to summary judgment,  nor does he cite any such  


evidence  on  appeal.    We  therefore  affirm  the  grant  of  summary  judgment  in  the  

providers' favor.12  

          B.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Denying  

                    Dr.   Brandner's   Request   For   Additional   Time   To   Depose   The  


                    Providers' Experts.  

                    Prior to the superior court's summary judgment ruling, Dr. Brandner moved  

to depose Dr. T. Andrew Bowdle, Thomas Vasquez, and Dr. Pease, whose affidavits  


supported  the  providers'  summary  judgment  motions.    The  providers  opposed  the  

motion, pointing out that Dr. Brandner had ample time to depose all three witnesses  

before the discovery deadline. The superior court denied Dr. Brandner's motion as moot  


because "[his] only expert cannot testify that . . . the lack of a TEE [probe] caused any  


injury  to  [Dr.]  Brandner."               Dr.  Brandner  contends  that  this  order  was  an  abuse  of  




                    The superior court did not abuse its discretion. Dr. Brandner had produced  


no evidence of causation, while, in contrast, the providers submitted four affidavits to  


support their summary judgment motion.  Dr. Brandner asked to depose three of the four  

witnesses, but he did not attempt to depose or strike the testimony of Dr. Beerle, who  


stated that "[t]he medical care provided by Dr. Pease to [Dr. Brandner] was appropriate  



                    Because we affirm the superior court on this basis, we do not reach the issue  

of Dr. Yun's qualifications as an expert witness.  

                                                              -13-	                                                            7066  

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


in all respects and met the [s]tandard of [c]are," and that a working TEE "would not have  


changed the surgeon's plans to bypass the vessels chosen." Accordingly, even if the  


superior court had struck the affidavits of Dr. Bowdle, Vasquez, and Dr. Pease in their  


entirety, the providers would have remained entitled to judgment as a matter of law  

because Dr. Brandner produced no evidence of causation to counter Dr. Beerle's expert  


          C.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Ordering  


                    Dr. Brandner To Reimburse Costs The Anesthesia Group Incurred As  

                    A Result Of His Motion To Continue.  


                    Dr. Brandner moved for a continuance less than one month before trial was  

set to begin, largely based on criminal charges that were filed five months prior.  The  

superior   court  reluctantly  granted  the  continuance,  but  specifically  found  "that  

[Dr.] Brandner . . . violated the pre-trial order deadlines by failing to timely file this  

motion to continue and such violation . . . directly caused . . . costs [to the providers]."  

The court ordered Dr. Brandner to pay the costs that the Anesthesia Group incurred as  


a result of the continuance within 30 days. The Anesthesia Group submitted an affidavit  

stating that its total costs from the continuance were $27,559.38 - $22,559.38 for a  


temporary anesthesiologist who was hired to cover for Dr. Pease during the originally  


scheduled trial period and whose contract could not be cancelled, and $5,000 for the  


cancellation fee for one of its expert witnesses. The court initially ordered Dr. Brandner  


to pay the Anesthesia Group the entire sum, though the court subsequently reduced the  


cost award to $24,878 because the Anesthesia Group's billings revealed that the original  


sum included "travel, hotels, car rentals, per diem, overtime[,] and other avoidable costs"  


for the temporary anesthesiologist that "[t]he [c]ourt did not intend to award."  Despite  

this reduction, Dr. Brandner contends that the superior court abused its discretion by  

awarding these costs.  

                                                             -14-	                                                      7066

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                    Dr.  Brandner  argues  that  it  was  unfair  for  him  to  pay  for  a  temporary  

anesthesiologist  who  was  "[n]ever  needed."    He  points  out  that  the  temporary  


anesthesiologist was hired to allow Dr. Pease to attend trial, and he claims "revenue or  

wage loss due to a party attending a trial is not recoverable under any rule, and there was  


nothing to show that a [temporary anesthesiologist] was needed to replace Dr. Pease,  


who was available [to work] when the trial was continued."  Dr. Brandner further argues  


that the cost award "opens the doors for parties to claim loss of income to attend trial as  


a component of damages or as a component of litigation costs."  He argues that the court  


"penalized him for exercising his Fifth Amendment rights."  And he contends that the  

requirement  that  he  pay  the  Anesthesia  Group  for  their  costs  within  30  days  was  

"inconsistent with the civil rules" and "amount[ed] to a[n] [unreasonable] sanction."  

These arguments are unpersuasive.  

                    Alaska Civil Rule 40(e)(2) grants the superior court "significant discretion"  


in requiring a party moving for a continuance to pay the costs resulting from the delay  


of trial.      Rule 40(e)(2) provides:  


                    Unless otherwise permitted by the court, application for the


                    continuance of the trial . . . shall be made to the court at least


                    five days before the date set for trial . . . .  If such 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. (Emphasis added.)

Recently, in Cooper v. Thompson, we affirmed a costs award for "travel, lodging, and . . .


attorney's hours of trial preparation that would have to be duplicated" as a result of a

          13        Cooper v. Thompson, 353 P.3d 782, 796 (Alaska 2015).  

                                                             -15-                                                           7066  

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



party's request to continue trial.                   The purpose of awarding such costs is not to punish  


the party requesting a continuance but to "require [that] 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."15  


                    It is uncontested that the Anesthesia Group committed to paying these costs  

under  the  assumption  that  the  trial  would  commence  on  the  scheduled  date.    The  


postponement of that trial, which Dr. Brandner requested and the Anesthesia Group  

opposed,  made  the  costs  unnecessary  but  did  not  absolve  the  Anesthesia  Group's  


contractual duty to pay them. And the Anesthesia Group could have avoided committing  

to these costs in the first place if Dr. Brandner had moved for a continuance earlier.  


                    For this reason Dr. Brandner is incorrect that the award "opens the doors  


for parties to claim loss of income to attend trial as a component of damages or as a  


component of litigation costs."  Affirming the costs award here merely recognizes that  

when  a  party's  delay  in  filing  a  motion  to  continue  causes  another  party  to  incur  


nonrefundable costs that could have been avoided had the motion been filed earlier, the  

superior court has discretion to assign those costs to the moving party.  It in no way  

affects   the   general   rule   that   such   costs   are   normally   each   party's   respective  



          14        353 P.3d at 796.  As with the Anesthesia Group's costs in the present case,  

the travel and lodging costs in Cooper were not costs an opposing party would normally  


be required to bear under Rule 79.  See Alaska R. Civ. P. 79(f) (listing costs that may be  


awarded to a prevailing party).  

          15        Id.  



                     Cf. Alaska R. Civ. P. 79(f) (list of costs that may be awarded to prevailing  

party does not include costs associated with grant of continuance, such as fees incurred  

for cancellation of expert witnesses).  

                                                               -16-                                                         7066

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

                     Dr.  Brandner  is  also  incorrect  that  the  imposition  of  these  costs  was  


 intended to "penalize[] him for exercising his Fifth Amendment rights."  The superior  


 court's  order  explicitly  stated:  "The  delay  in  filing  the  motion  -  not  the  fact  that  


 [Dr.] Brandner had decided to exercise his [Fifth] Amendment rights . . . - is the direct  


 cause of the . . . cost[s] unnecessarily [in]curred . . . ."   And when the superior court  


 reduced  the  costs  award  on  reconsideration,  the  court  reiterated  that  "[i]t  was  the  

 [c]ourt's intention to award only costs that could not be avoided because of the dilatory  

filing  of the motion to continue."  (Emphasis added.)  There is simply no evidence in the  

 record  that  the  superior  court  intended  to  punish  Dr.  Brandner  for  exercising  a  

 constitutional right.  

                     Dr.  Brandner  also  argues  the  requirement  that  he  pay  the  Anesthesia  


 Group's costs within 30 days was intended to "sanction" him and was "inconsistent with  

 the civil rules."  But Rule 40(e)(2) grants the superior court significant discretion to  


 "impose such terms as it sees fit" and to "require the payment of . . . costs by the party  


 at whose request the continuance has been made."  Setting a 30-day deadline was within  

 the court's discretion in this matter.  


                     Dr. Brandner finally argues that "[i]f this cost is to be imposed, [he] should  


 at least be allowed to depose the billing department of [the providers'] expert and [the]  

 Anesthesia Group to find out what, if anything, was paid and what income was earned  


 as a result of using a [temporary anesthesiologist] and Dr. Pease [simultaneously] once  


 trial was continued."  Dr. Brandner made this argument before the superior court, which  

 rejected it while noting that "[Dr. Brandner] is entitled to a copy of [the] documentary  


 proof  of  payment,  which  defendants  shall  timely  provide."    The  court's  order  was  

 reasonable.  There is little reason to think the demand for anesthesia necessarily increases  


 with the supply of anesthesiologists.  And the Anesthesia Group did provide proof of  

 payment, which already resulted in the reduction of the costs award.  The court could  

                                                               -17-                                                        7066

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

reasonably  conclude  that  Dr.  Brandner's  request  for  depositions  on  this  matter  was  

excessive and unreasonable.  


                   For these reasons, we affirm the imposition of costs to Dr. Brandner under  

Rule 40(e)(2).  

          D.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Awarding  

                   Attorney's Fees.  


                   The superior court awarded attorney's fees to the providers pursuant to  

Rule 82, which provides in part that "[i]n cases [resolved without trial] in which the  

prevailing  party  recovers  no  money  judgment,  the  court  shall  award  the  prevailing  



party . . . 20 percent of its actual attorney's fees which were necessarily incurred." 

Dr. Brandner argues that the awards were excessive and that the court failed to provide  


explanation for the reasoning behind its awards.  These arguments are without merit.  


                   As an initial matter, Dr. Brandner argues that the providers' attorney's fees  


were facially excessive given that the "case involved [only] six depositions and a limited  


motion for summary judgment."  But this argument ignores the fact that the case nearly  


went to trial, and that Dr. Brandner claimed damages of approximately $1,681,065 plus  


$466,905 yearly in future lost earning capacity. Thus the superior court could reasonably  

conclude  that  the  providers'  attorneys'  total  billings,  $240,456,  were  not  facially  


                   Dr. Brandner also raises four specific criticisms regarding Dr. Pease and the  

Anesthesia Group's billings.  We reject these arguments as well.  

                   First,  Dr.  Brandner  criticizes  Dr.  Pease  and  the  Anesthesia  Group's  


attorneys  for  "reviewing  the  same  chart  notes  and  medical  records  .  .  .  on  multiple  


occasions." But these documents were the critical evidence in this case, upon which both  

          17       Alaska R. Civ. P. 82(b)(2).  

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


sides'  expert  testimony  relied.                But  Dr.  Brandner  has  not  demonstrated  that  it  was  


unreasonable for the providers' attorneys to review in depth critical documents upon  

which both sides' experts relied.  


                    Second, Dr. Brandner criticizes the attorneys' billings for "joint meetings  


with counsel for [the Medical Center], and work with experts not used in this case."  But  


because  the  providers'  interests  and  legal  defenses  were  largely  aligned,  it  seems  


reasonable that they would want their attorneys to meet to coordinate legal strategy.  As  


for the experts, Dr. Pease and the Anesthesia Group explained to the court that "[h]ad the  


case progressed to trial, each [expert] would have testified."  Dr. Brandner does not  


explain why obtaining the opinions of experts not ultimately called to testify at trial was  


in any way unreasonable in a case that was resolved before trial and turned on expert  



                    Third, Dr. Brandner criticizes the attorneys for time spent investigating his  

criminal case, which he claims had "nothing to do with this case."  But Dr. Pease and the  


Anesthesia Group told the superior court that "[t]he defendants were trying to untangle  

Dr.  Brandner's  complicated  financial  picture  as  a  part  of  defending  [against]  his  


multimillion  dollar  loss  of  earnings  claim,"  and  that  "[Dr.]  Brandner  .  .  .  used  his  


criminal issues as a basis for a last minute continuance[,] which also required the court  

and the defendants to delve into those issues."  Given the relevance of Dr. Brandner's  

criminal  indictment  to  the  case,  Dr.  Brandner  has  not  demonstrated  that  it  was  

unreasonable for the attorneys to bill time spent investigating the issue.  

                    Finally,  Dr.  Brandner  criticizes  the  attorneys  for  billing  time  spent  


preparing the 2012 motion for summary judgment, which was later withdrawn.  But  


Dr. Pease and the Anesthesia Group pointed out that summary judgment was eventually  

granted for the same reasons advanced in the original summary judgment motion, and  

they maintained that "[a]ll the work which went into the original motion was utilized  

                                                              -19-                                                         7066

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


when filing the second, successful summary judgment motion."  Dr. Brandner has not  

demonstrated that the superior court erred in awarding fees for time spent preparing the  

original summary judgment motion.  

                    In addition to disputing Dr. Pease and the Anesthesia Group's legal billings,  

Dr. Brandner argues that the attorney's fees awards should be remanded because the  

superior court provided "no explanation of the reasoning behind [the Medical Center's]  


award"  and  granted  Dr.  Pease  and  the  Anesthesia  Group's  attorney's  fees  request  

"without ruling on [his] objections."  



                    The court was not obliged to provide reasons for rejecting - or accepting 



- Dr. Brandner's specific billing objections.                           It is true that "[i]f the [superior] court  


deviates  from  [the  Rule  82(b)  percent  award]  formula,  it  must  provide  a  written  



explanation  for  doing  so."                 But  there  is  no  indication  here  that  the  superior  court  

deviated from that formula.  Instead, it appears that the superior court determined the  


"actual   attorney's   fees   which   were   necessarily   incurred,"                              accepting   some   of  


Dr. Brandner's objections in the process, and applied the proper formula to that sum.  

          18        It  appears  that  the   superior  court  did  accept  some  of  Dr.  Brandner's  

objections.  The Medical Center reported that it had incurred $110,355.50 in attorney's  

fees  and  was  entitled  to  an  award  of  $22,071.10;  the  court  awarded  $20,616.10.  

Dr.  Pease  and  the  Anesthesia  Group  reported  that  they  had  incurred  $130,100  in  


attorney's fees and were entitled to an award of $26,020; the court awarded $25,380.  

          19        Alaska  R.  Civ.  P.  52(a)  ("Findings  of  fact  and  conclusions  of  law  are  


unnecessary on decisions of motions under Rules 12 or 56 or any other motion except  

as provided in Rule 41(b).").  



                    Nichols v. State Farm Fire & Cas. Co. , 6 P.3d 300, 305 (Alaska 2000)  

(citing Alaska R. Civ. P. 82(b)(3)).  

          21        Alaska R. Civ. P. 82(b)(2).  

                                                             -20-                                                        7066

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

"[T]he [superior] court is under no obligation to give reasons for an award that complies       

with the percentages expressed in Rule 82(b)(2)."22  

V.        CONCLUSION  

                    The  superior  court  did  not  err  in  granting  summary  judgment  to  the  

defendants because Dr. Brandner did not produce any evidence that the defendants'  


actions caused his injuries.  Nor did the superior court abuse its discretion in ordering  


Dr. Brandner to pay attorney's fees and costs associated with his motion to continue.  We  

therefore AFFIRM the superior court's judgment.  

          22        Nichols , 6 P.3d at 305.  

                                                             -21-                                                           7066  

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