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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Todeschi v. Sumitomo Metal Mining Pogo, LLC (4/28/2017) sp-7167

Todeschi v. Sumitomo Metal Mining Pogo, LLC (4/28/2017) sp-7167

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                      

NATHANIEL  A.  TODESCHI,                                        )  

                                                                )          Supreme  Court  Nos.  S-15542/15571  

                                Appellant  and                  )  

                                Cross-Appellee,                 )          Superior  Court  No.  3AN-11-05283  CI  



                                                                )          O P I N I O N  



SUMITOMO METAL MINING                                                                                         

                                                                )          No. 7167 - April 28, 2017  


POGO, LLC,                                                      )  



                                Appellee and                    )  

                                Cross-Appellant.                )  



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


                      Judicial District, Anchorage, William F. Morse, Judge.  


                     Appearances:   Michael W. Flanigan, Flanigan & Bataille,  


                     Anchorage, for Appellant/Cross-Appellee.   Sean Halloran,  


                      LittlerMendelson,Anchorage, forAppellee/Cross-Appellant.  


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


                     Bolger, Justices.  


                     MAASSEN, Justice.  



                     A mine supervisor suffered back injuries over the course of his career and  


required several surgeries.   His employer terminated his employment following his  


request for an accommodation and his renewed pursuit of a three-year-old workers'  


compensation claim. The supervisor sued, alleging breach of the covenant of good faith  

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

and fair dealing and unlawful discrimination based both on a disability and on  his  


assertion of the workers' compensation claim.  The employer defended on grounds that  


the supervisor could no longer performthe essential functions of his job and had declined  


an  offered  accommodation;  it  also  asserted  that  it  was  not  liable  for  the  workers'  


compensation claim.  A jury returned a special verdict finding the employer liable for  


breach of the covenant of good faith and fair dealing and awarding the  supervisor  


$215,000 in past lost income, but finding in the employer's favor on the supervisor's  


other claims.  


                    The supervisor appeals.   He argues that the superior court erred when  


it (1) denied his motion for a directed verdict on whether he has a disability; (2) denied  


his motion for judgment notwithstanding the verdict due to an inconsistency between the  


jury's decisions of two of his claims; (3) declined to give a burden-shifting or adverse  


inference instruction based on alleged spoliation of evidence; and (4) raised a statute of  


limitations defense by way of a jury instruction.  The employer cross-appeals, arguing  


that the superior court erred in excluding one of its witnesses.  


                    Seeing  no  error,  we  affirm.                  Because  we  resolve  the  appeal  in  the  


employer's favor, we do not reach the employer's cross-appeal.  




          A.        Facts  

                    Nathaniel Todeschi began work at Pogo Mine in November 2005.  The  


mine was operated by Teck-Pogo, Inc., which later merged with another company to  


form Sumitomo  Metal  Mining  Pogo,  LLC (Sumitomo),  the  defendant  in  this  case.  


 Sumitomo stipulated in the trial court that, for purposes of employer liability, it was the  


operator of Pogo Mine the entire time Todeschi worked there.  


                                                               -2-                                                        7167

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                    Todeschi was promoted to a supervisor position after less than a year at the  


mine.  Sumitomo does not dispute that his work performance was at least acceptable.  


                    As a supervisor, Todeschi was responsible for the safety and production  


targets of up to ten employees.   He directed their activities, provided support,  and  


ensured their safety and efficiency.   This required that he spend a large part of his  


workday underground.  According to Sumitomo's job description, underground mine  


supervisors could travel up to 30 miles in the mine during one 13-hour shift.  For these  


purposes Sumitomo provided both trucks and Kubota tractors; the tractors had minimal  


suspension, but Sumitomo claimed it could neither completely eliminate their use nor  


significantly improve their suspension.  


                    Todeschi had a history of job-related back injuries, which he testified were  


aggravated whenever he had to drive a tractor.  His first back surgery was before he  


worked at Pogo Mine. He had another surgery in 2008, but it was ineffective; according  


to Todeschi, he had a herniated disk that broke into fragments.  He testified that in order  


to continue working without pain he consumed so many painkillers that his doctor  


thought he had cirrhosis of the liver.  He had a back fusion in May 2009 to address the  




                    When Todeschi returned to work at the mine later that year, Paul Brunelle,  


a Pogo general foreman, assigned him to a special project that kept him at a desk. When  


the  special  project  was  completed  Todeschi  resumed  his  duties  as  an  underground  


supervisor.  His physician had given him a full medical release with no restrictions, but,  


according to Todeschi, the doctor had not anticipated that he would be required to drive  


a tractor again.  


                    Todeschi  soon  sent  an  email  to  Chad  Omaha,  another  Pogo  general  


foreman, stating that he would "not operate a Kubota tractor for any reason" because of  


                                                               -3-                                                         7167

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

the risk of further injury to his back.  He said Sumitomo was "asking [him] to choose  


between [his] job and [his] ability to walk and have a normal life" and he had "made all  


the compromises [he was] going to make on the issue."  He asked for other "suitable  


reliable transportation . . . so that [he might] continue in [his] current capacity as a shift  


supervisor" and concluded that he would "give it [until] Monday to see if suitable  


arrangements are made[;] if not you do as you choose."  Todeschi apparently continued  


working his shifts for awhile, using a truck. But in the meantime, Sumitomo supervisors  


and the company's attorney, Sean Halloran, began discussing by email how Todeschi's  


injury might be accommodated and whether he should be terminated instead.  


                    A few weeks after Todeschi's email ultimatum, Sumitomo sent him to an  


independent medical exam with Dr. John Michael James. Sumitomo's human resources  


manager, Thomas Brokaw, provided Dr. James with a newly drafted job description that  


included a requirement that mine supervisors be able to "replace water pumps (lifting  


60lbs to 250lbs depending on the pump being replaced) on their own." Dr. James found  


the lifting requirement to be unreasonable for even a healthy employee; he concluded  


that Todeschi could lift items up to 50 pounds occasionally, should not lift anything more  


than 40 pounds repetitively, and should be provided a truck as an accommodation.  


                    Having received Dr. James's evaluation, Sumitomo terminated Todeschi's  


employment effective that day on grounds that he "could not perform his regular job due  


to strict lifting limitations and other restrictions as indicated by [Dr. James]." Sumitomo  


claims its motivation for firing Todeschi was his inability to drive a tractor, though the  


termination notice did not say so. Todeschi contends, on the other hand, that Sumitomo  


fired him because he requested the accommodation and because he had sought to reopen  


a workers' compensation claim he originally filed after his 2007 workplace injury.  


                                                                -4-                                                         7167

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

                                             Todeschitestifiedthatheabandoned the2007 workers' compensationclaim                                                                                                                                                                 

after Kim Witt, the Pogo human resources manager at the time, told him he would lose                                                                                                                                                                                                 

his job if he pursued it.                                                       Todeschi testified that he used his private insurance to pay for                                                                                                                                         

the required medical care but refused to release the workers' compensation insurer,                                                                                                                                                                                     

which is why the claim remained open in 2010. Halloran, Sumitomo's attorney, testified                                                                                                                                                                                   

that Todeschi's renewed pursuit of the claim was irrelevant to Sumitomo because it                                                                                                                                                                                                           

predated   Sumitomo's   operation   of   the   mine   and   was  covered   by   its   predecessor's  

insurance.   Todeschi settled the claim for $80,000 in 2011, while this suit was pending.                                                                                                                                                                                                             

                                             Todeschi filed his complaint against Sumitomo in February 2011.                                                                                                                                                                          He  

alleged                         claims                       for              (1)              discrimination                                          on             the               basis                   of            a          disability                            under  

                                                                     1                                                                                                                                                                                                                          2  

AS 18.80.220(a)(1);                                                                                                                                                                                                                                                     

                                                                         (2) failure to accommodate his disability under the same statute; 


(3) breach of the implied covenant of good faith and fair dealing; and (4) discrimination  



under AS 23.30.247(a) based on his assertion of the workers' compensation claim. 

                       1                     "Except as provided in (c) of this section, it is unlawful for (1) an employer                                                                                                                                        

to refuse employment to a person, or to bar a person fromemployment, or to discriminate                                                                                                                                                                   

against a person in compensation or in a term, condition, or privilege of employment                                                                                                                                                                    

because of the person's . . . physical or mental disability."                                                                                                                                        AS 18.80.220(a)(1).   

                       2                      Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 864 (Alaska 1978)  


("We are  persuaded  that  a  duty  of  reasonable  accommodation  should  be  read  into  


 [AS 18.80.220(a)].").  


                       3                     "An employer may not discriminate  in  hiring, promotion, or retention  


policies or practices against an employee who has in good faith filed a claim for or  


received benefits under this chapter.  An employer who violates this section is liable to  


the  employee  for  damages  to  be  assessed  by  the  court  in  a  private  civil  action."  


AS 23.30.247(a).  


                                                                                                                                             -5-                                                                                                                                   7167

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

          B.	       Proceedings  


                    1.	       Todeschi's motion for burden-shifting or an adverse inference  


                              instruction based on Sumitomo's alleged spoliation of evidence  


                    Thomas Brokaw, Sumitomo's human resources manager at the time of  


Todeschi's  termination,  died  before  trial  and  without  being  deposed.                                       Sumitomo  


substituted its attorney Halloran on its witness list.   It explained that Halloran had  


discussed Todeschi's termination with Brokawandcouldtestify about thosediscussions,  


and it waived the attorney-client privilege to that extent.  


                    Todeschi  opposed  Halloran's  designation  as  a  witness  as  untimely,  


requesting  in  the  alternative  that  Sumitomo  produce  all  of  Halloran's  written  and  


electronic legal advice for this case and any similar cases.  The superior court allowed  


Halloran's testimony but ordered that Sumitomo produce his billing and phone records  


for  the  matter,  as  well  as  any  related  communications  or  memoranda.                                      The  court  


restricted the required production to the period from a month before Todeschi's email  


ultimatum to a month after his termination, but it noted that any records outside that  


scope could be reviewed in camera, and it required Sumitomo to create a privilege log.  


                    Halloran turned over few emails and phone records and no billing records.  


He testified that he never billed Sumitomo during 2010 and that he had destroyed any  


notes when he changed law firms; that his former firm inadvertently destroyed all his  


emails; and that some of his phone calls used a "voice over internet protocol" (VOIP)  


system that did not create a record of the call.  Emails between Halloran and Brokaw  


were produced by Sumitomo, but the collection was not complete; Halloran testified that  


"Brokaw kept the emails that he believed mattered to anything, and he deleted emails that  


he thought were unimportant."  


                    Todeschi moved for a shifting of the burden of proof on his discrimination  


claims to Sumitomo, or in the alternative a jury instruction allowing an inference that any  

                                                               -6-	                                                        7167

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


missing email, phone, and billing records of Halloran's would have supported his case.  


The superior  court denied  the motion,  saying only,  "I'm not giving  a presumption  


instruction.  I don't think that you've met the burden for that."  


                     2.        Jury instructionarguably raising a statuteof limitations defense  


                     Todeschi also objected to a jury instruction, contending that it invited the  


jury  to  apply  a  statute  of  limitations  defense  that  Sumitomo  had  never  pleaded.  


Instruction Number 12 read:  


                     You have heard testimony that Kim Witt engaged in certain  


                     conduct.   Sumitomo cannot be held responsible for Witt's  


                     conduct before 2009. However, if you find that Witt engaged  


                     in certain conduct before 2009 you may (but need not) further  


                     find  that  it  provides  context  for  Sumitomo's  actions  or  


                     omissions in 2010.  


Before  trial  Sumitomo  had  stipulated  that  "Teck-Pogo  Inc.  is  the  same  entity  as  


 Sumitomo Metal Mining Pogo, LLC.   Although the name and corporate form were  


changed when the company was sold a couple years ago, they are, in fact and law, one  


and the same entity.  Thus, . . . Kim Witt . . . [was a] Sumitomo employee[]."  


                     Todeschi   argued   that   Instruction   Number   12   effectively   negated  


 Sumitomo's stipulation of fact.  He argued that the stipulation allowed him to causally  


connect Witt's actions in 2008 and his termination in 2010, but the instruction precluded  


that argument when it said that Sumitomo could not "be held responsible for Witt's  


conduct before 2009." Sumitomo countered that the instruction only prevented the jury  


from finding it liable for Witt's alleged threat, and Todeschi had not asserted a claim  


based on the alleged threat itself; the claim Todeschi did bring involved his 2010 firing  


by Sumitomo, and the instruction specifically allowed Todeschi to use Witt's alleged  


threat as background to that event.  


                     The court overruled Todeschi's objection and gave Jury Instruction 12.  

                                                                -7-                                                         7167

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

                                        3.                  Directed verdict   

                                        At the close of the evidence Todeschi moved for a directed verdict on the                                                                                                                                        

issue of whether he had a disability. He argued that Dr. James's evaluation conclusively                                                                                                                                    

showed he was restricted from a class of jobs and therefore had a physical disability, as                                                                                                                                                                   

defined by federal law, because he was substantially limited in the major life activity of                                                                                                                                                                  

working.     The   argument   relied   on   federal   regulations   and   the   Equal   Employment  

Opportunity    Commission's   interpretation    of    the    Americans    with   Disability    Act  

Amendments Act.                                       4  


                                        Sumitomo countered by pointing to Todeschi's full medical release from  


his own doctor, differing from Dr. James's more guarded evaluation.  Sumitomo also  


argued  that  the  jury  might  not  believe  that  Todeschi's  claimed  restrictions  were  


disabilities: While a lifting restriction might prevent him from doing some jobs, the one  


cited in Dr. James's evaluation was a restriction any average person might have and did  


not prevent Todeschi from working at Pogo Mine.  And no evidence suggested that an  


inability to drive a tractor could constitute a physical disability; even if it prevented  


Todeschi from being a mine supervisor, it did not necessarily bar him from an entire  


class of jobs, which is what the legal definition of "disability" required.  


                                        The superior court found Todeschi's argument that he had a disability  


"extremely strong" but denied his motion for directed verdict, concluding that whether  

                    4                   See  29 C.F.R.  1630 (2013);                                                       ADAAmendments Act, Pub. L.                                                                    No. 110-325,   

 122 Stat. 3553 (2008) (amending Americans with Disabilities Act, 42 U.S.C.  12101-                                                                                                                                                        

 12213;  see also  6 Alaska Administrative Code (AAC) 30.910(b) (2007) ("In deciding  

complaints of alleged discrimination under AS 18.80 in employment, state and local                                                                                                                                                                 

governmentservices, or publicaccommodationsbecauseofphysicalor mentaldisability,                                                                                                                                                     

the commission may use 42 U.S.C. 12101 - 12213 (Americans with Disabilities Act) and                                                                                                                                                                    

relevant federal case law as a guideline.").                                                                                    

                                                                                                                             -8-                                                                                                                   7167

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

 he had a disability was a question of fact that the jury could reasonably answer either                                                                                                                                                                                                                                                                                                                                                                                                                                                                        


                                                                                            4.                                          Motion for judgment notwithstanding the verdict                                                                                                                                                                                                                                                                 

                                                                                            The jury was asked to answer four questions about liability.  It answered  

  "no" to three of them: (1) Whether Sumitomo terminated Todeschi's employment "due                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

  to a disability in violation of [AS] 18.80.[220]"; (2) whether Sumitomo "fail[ed] to make                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

  a reasonable accommodation so that [Todeschi] could continue his employment"; and                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

  (3)  whether "Todeschi's pursuit of workers' compensation benefits" was "a substantial                                                                                                                                                                                                                                                                                                                                                                                                                                       

  factor in Sumitomo's termination of his employment."                                                                                                                                                                                                                                                                                                                          The jury answered "yes" to one                                                                                                                                                                 

  liability question:  Whether Sumitomo "breach[ed] the covenant of good faith and fair                                                                                                                                                                                                                                                                                                                                                                                  

  dealing when [it] terminated Todeschi's employment." For his one successful claim the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

jury awarded Todeschi $215,000 in past lost income.                                                                                                                                                                                                                                                                                                                       

                                                                                            Todeschi moved for a judgment notwithstanding the verdict, additur, or a                                                                                                                                                                                                                                                                                                                                                                                                                           

 new trial. In support of a judgment notwithstanding the verdict - the only aspect of the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

 motion relevant to this appeal - Todeschi argued that he had conclusively proven his                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

  claim for discrimination based on disability and that the jury's special verdict was                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 necessarily inconsistent; he argued that the jury could only have found a breach of the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

  covenant of good faith and fair dealing on a view of the facts that also required it to find                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

  disability discrimination.   

                                                                                            The superior court found no inconsistency                                                                                                                                                                                                                                              in the jury verdict, however, and                                                                                                                                                           

  denied Todeschi's motion.                                                                                                                                                            This appeal followed.                                                                  

                                                                                                                                                                                                                                                                                            -9-                                                                                                                                                                                                                                                                         7167

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


                          We review the denial of a motion for judgment notwithstanding the verdict                                                         


 (JNOV) using the same standard we use when reviewing a directed verdict.                                                                          "[B]ecause  


the sufficiency of the evidence to support a jury verdict is a question of law, our review  



 [of motions for JNOV and directed verdict] is de novo."                                                      When we review a trial court's  


 decision on a motion for directed verdict, "we must decide 'whether the evidence, when  


 considered in the light most favorable to the nonmoving party, is such that reasonable  



persons could not differ in their judgment.' "                                                   "[C]onflicting evidence is not to be  

weighed and witness credibility is not to be judged on appeal."8  We scrutinize JNOV  

 and directed verdict motions "under a principle of minimum intrusion into the right to  


jury trial guaranteed under the Alaska Constitution. . . .  If there is any doubt, questions  



 of fact should be submitted to the jury." 


                          We review the superior court's decisions of discovery sanctions, such as  

                                                                                      10  "The choice of a particular sanction for  

 spoliation remedies, for abuse of discretion. 

 a discovery violation generally is a matter committed to the broad discretion of the trial  


             5            Lynden, Inc. v. Walker                     , 30 P.3d 609, 612 (Alaska 2001) (citing                                      Alaska Tae   

 Woong Venture Inc. v. Westward Seafoods, Inc.                                                , 963 P.2d 1055, 1062 (Alaska 1998)).                                       

             6             Cameron v. Chang-Craft, 251 P.3d 1008, 1018 (Alaska 2011).  


             7            Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008) (quoting Hagen Ins.,  


Inc. v. Roller, 139 P.3d 1216, 1219 (Alaska 2006)); see also Cameron, 251 P.3d at 1017.  


             8             Cameron, 251 P.3d at 1017-18.  


             9            Id. (alteration in original) (quoting City of Delta Junction v. Mack Trucks,  


Inc., 670 P.2d 1128, 1130 n.2 (Alaska 1983)).  


             10           Mills v. Hankla, 297 P.3d 158, 164-65 (Alaska 2013) (quoting Wooten v.  


Hinton, 202 P.3d 1148, 1155 (Alaska 2009)).  


                                                                                 -10-                                                                          7167

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


 court."           "We review a trial court's findings of fact underlying its discovery sanction                                                           

 determination for clear error and 'will not declare a trial court's finding to be clearly                                                                    

 erroneous unless, after a review of the entire record, we are left with a definite and firm                                                                       

                                                                                         12    Whether there has been spoliation is a  

 conviction that a mistake has been made.' "                                                                                                                             

 finding of fact.13  


                           "  'Jury  instructions  involve  questions  of  law  to  which  we  apply  our  


 independent judgment.' 'When reviewing a trial court's denialofaproposed instruction,  


 our  inquiry  focuses  upon  whether  the  instructions  given,  when  read  as  a  whole,  


 adequately inform the jury of the relevant law.' "14                                                      "An error in jury instructions is  


 grounds for reversal only if it caused prejudice."15  "In evaluating whether there has been  


prejudicial error with regard to jury instructions, we put ourselves in the position of the  


jurors and 'determine whether the error probably affected their judgment.' " 16  


              11           Powell v. Tanner                  , 59 P.3d 246, 253 (Alaska 2002).                     



                           Mills, 297 P.3d at 165 (quoting Spenard Action Comm. v. Lot 3, Block 1,  


Evergreen Subdivision, 902 P.2d 766, 776 (Alaska 1995)).  

              13           See  id.  (explaining  "[t]he  superior  court's  finding  that  there  was  no  


 spoliation was not clearly erroneous").  


              14           City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting  


 Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012)).  


              15           Id. (quoting Thompson, 290 P.3d at 398-99).  


              16           Id. (quoting Thompson, 290 P.3d at 399).  


                                                                                  -11-                                                                           7167

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



           A.	       Viewing The Evidence In The Light Most Favorable To Sumitomo, A  


                     Reasonable Jury Could Have Found That Todeschi Did Not Have A  



                     Alaska's human rights statutes proscribe certain employment practices,  


including "discriminat[ing] against a person in compensation or in a term, condition, or  



privilege of employment because of the person's . . . physical or mental disability." 


"Physical or mental disability" is defined to mean "a physical or mental impairment that  



substantially limits one or more major life activities."                                                                           

                                                                                         "Major life activities," in turn,  


aredefined as"functions such as caring for one's self, performing manual tasks, walking,  



seeing, hearing, speaking, breathing, learning, and working."                                       Todeschi argues that the  


trial court should have directed a verdict in his favor on whether he had a disability  


within the meaning of these statutes - a predicate to his disability discrimination claim  


- because the evidence at trial demonstrated conclusively that his lifting restrictions  


substantially limited him in the "major life activity" of working.  


                     In support of this argument, Todeschi points to an example in the federal  


regulations implementing the Americans with Disabilities Act Amendments Act:  


                      [I]f a person whose job requires heavy lifting develops a  


                     disability that prevents him or her from lifting more than fifty  


                     pounds and, consequently, from performing not only his or  


                     her  existing  job  but  also  other  jobs  that  would  similarly  


                     require  heavy  lifting,  that  person  would  be  substantially  

           17        AS 18.80.220(a)(1).   



                     AS 18.80.300(14)(A).  

           19        AS 18.80.300(10).  


                                                                  -12-	                                                           7167

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

                        limited in working because he or she is substantially limited                                    


                        in performing the class of jobs that require heavy lifting.                                                  

Todeschi argues that this example and his own situation "match[] perfectly" and that  


both Alaska's anti-discrimination statute and the federal law it incorporates21  required  


the conclusion that he had a disability as a matter of law.  


                        Butwhether theexamplematches Todeschi's casedependson facts thejury  


could reasonably have found in Sumitomo's favor. First, Sumitomo presented evidence  


that the lifting requirement did not prevent Todeschi from performing his "existing job."  


The job description given Dr. James for purposes of the independent medical exam -  


stating a job requirement of "lifting 60lbs to 250lbs depending on the pump being  


replaced" - was in Dr. James's opinion unreasonable, but Sumitomo contended that as  


reasonably interpreted it only described lifting with mechanical aids and that Todeschi  


never actually had to lift anything so heavy by himself in order to perform his job.  


                        Second,  the  federal  example  requires  the  jury  to  find  that  Todeschi's  


inability to meet the lifting requirement barred him from a "class of jobs."  He points to  


the uncontested expert testimony of a vocational counselor that he could not work in  


several categories of jobs, but the jury could have chosen to assign no weight to that  


testimony.   Rather,  using their own experience or relying on evidence such as Dr.  


James's opinion that the lifting requirement was "fairly unreasonable for a[n] uninjured  


worker," jurors may have found that Todeschi was no more restricted than an average  

person.   The jury may also have relied on Todeschi's full medical release with no  


restrictions that predated Dr. James's evaluation to conclude that Todeschi was not  


precluded from performing a "class of jobs."  


            20          29  C.F.R.  app.     1630.2(j)(5)  &  (6)  (2013)  (emphasis  added).  

            21          See  supra  note  4.  

                                                                           -13-                                                                          7167  

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

                                                  In   short,   although   Todeschi   offered   evidence   sufficient   to   support   a  

 conclusion that he was limited in the "major life activity" of working and therefore had                                                                                                                                                                                                                      

 a disability, the jury was not required to accept it as true in light of the conflicting                                                                                                                                                                                          

 evidence.   We conclude that the superior court did not err when it denied Todeschi's                                                                                                                                                                                             

 motion for a directed verdict on the disability issue.                                                                                                                                        

                         B.	                     AReasonableJury                                                           CouldConsistently                                                          FindThat                               Sumitomo Breached  

                                                  The   Covenant    Of   Good   Faith   And   Fair   Dealing   But   Did   Not  

                                                 Discriminate Against Todeschi On The Basis Of A Disability.                                                                                                                                                                                      

                                                  Todeschi argues that because the jury found that Sumitomo breached the                                                                                                                                                                                         

 covenant of good faith and fair dealing, it could not consistently find that the company                                                                                                                                                                                                  


 did not discriminate against him on the basis of a disability.                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                     Jury  Instruction 26  


 informed the jury how to decide whether Sumitomo had breached the covenant:  


                                                  The defendant violated the implied promise of good faith and  


                                                  fair dealing if you find that it is more likely true than not true  


                                                 that the defendant deprived the plaintiff of a benefit of the  



                                                  1.	                     by acting in bad faith; or  


                                                  2.	                     by acting in a manner that a reasonable person would  


                                                                          regard as unfair.  

                         22                      Although Alaska Civil Rule 50(b) generally limits motions for judgment                                                                                                                                                                   

 notwithstanding the verdict to parties who have moved for directed verdict "at the close                                                                                                                                                                                                                 

 of all the evidence," Todeschi was not required to make a directed verdict motion in                                                                                                                                                                                                                                

 order to preserve his motion for judgment notwithstanding the verdict.                                                                                                                                                                                               He moved for   

judgment notwithstanding the verdict "                                                                                                      because  of findings made in the special verdict,                                                                                                    

 rather than notwithstanding  them."   Borgen v. A & M Motors, Inc., 273 P.3d 575, 584  

 (Alaska 2012) (emphasis in original).                                                                                                    This is the exception to the usual procedural rule,                                                                                                               

 because "a jury's verdict . . . could not have been known before the case was submitted                                                                                                                                                                                                

 to the jury."  Alaska Interstate Constr., LLC v. Pacific Diversified Invs., Inc.                                                                                                                                                                                                      , 279 P.3d   

  1156, 1172 (Alaska 2012).                                                                          

                                                                                                                                                        -14-	                                                                                                                                              7167

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


Todeschi argues that the only act the jury could reasonably have found to satisfy either  


requirement of this instruction is Sumitomo's submission of the job description to Dr.  


James suggesting that Todeschi was required to lift as much as 250 pounds as part of his  


job,  "then  using  the  failure  to  meet  those  lifting  requirements  as  the  basis  for  a  


termination."  Todeschi asserts that if the jury agreed the job description was unfair and  


that Sumitomo fired him because of his failure to meet its requirements, it must have  


believed that he was discriminated against because of a disability.  


                      But the jury's verdicts can be harmonized. Instruction 26 allowed the jury  


to  consider  a  broad  landscape  of  actions  and  motivations  in  determining  whether  


 Sumitomo breached the covenant of good faith and fair dealing, requiring only a finding  


that the defendant, at some point, acted "in a manner that a reasonable person would  


regard as unfair." Conversely, theinstructionsondisability discrimination required more  


- and more specific - findings.  Instruction 15, defining a "disability discrimination  


claim under AS 18.80.220," required Todeschi to "prove it is more likely true than not  


true that:  (1) . . . he is an individual who has a disability within the meaning of the  












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

negligently before imposing                     any  sanction.58  The Florida Supreme Court - which we   


followed in adopting the burden-shifting presumption                                                                                      

                                                                                            - takes a different tack.  It has  


approvedjuryinstructions that,whilerequiringburden-shifting iftherehas been abreach  


of a legal duty to maintain the lost records, allow an adverse inference when (1) a party  


caused evidence "to be unavailable, whileit was within [theparty's]possession, custody,  


or control," and (2) the evidence "would have been material in deciding the disputed  



issues in [the] case." 



Co., 15 F.3d 546, 552 (6th Cir. 1994))); Phillips v. Covenant Clinic, 625 N.W.2d 714,  


718 (Iowa 2001) ("The evidentiary value of the inference is derived from the common  


sense observation  that  a  party  who  destroys  a  document  with  knowledge that  it  is  


relevant to litigation is likely to have been threatened by the document.").  

           58         See, e.g., Beers v. Bayliner Marine Corp., 675 A.2d 829, 833 (Conn. 1996)  


("[T]he spoliator must be on notice that the evidence should be preserved."); Kippenhan  


v. ChaulkServs., Inc., 697 N.E.2d 527, 530 (Mass. 1998) ("Sanctions may beappropriate  


for the spoliation of evidence that occurs even before an action has been commenced, if  


a litigant or its expert knows or reasonably should know that the evidence might be  


relevant to a possible action."); State v. Barnes, 777 A.2d 140, 145 (R.I. 2001) ("Such  


a presumption or inference ordinarily would arise where the act was intentional or  


intended to suppress the truth, but 'does not ordinarily arise where the destruction was  


a matter of routine with no fraudulent intent.' " (citing 29 AM. J   UR. 2                                        D  Evidence   244   


at 256)).   

           59         See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 491 (Alaska  


1995) (citing Pub. Health Tr. of Dade Cty. v. Valcin, 507 So. 2d 596, 599-601 (Fla.  



           60         In re Standard Jury Instructions in Civil Cases - Report No. 15-01, 192  


So. 3d 1183, 1186 (Fla. 2016); see also League of Women Voters of Florida v. Detzner,  


172 So. 3d 363, 391 (Fla. 2015) ("Even in the absence of a legal duty, . . . the spoliation  


of evidence results in an adverse inference against the party that discarded or destroyed  


the evidence.").  


                                                                    -28-                                                              7167

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

                     We applied an adverse inference from the loss of evidence in                                           Thorne v.   


Department of Public Safety                  ,                                                                                        

                                                 which Todeschi cites in his brief. In Thorne we held that  


due process required the State to preserve videotape of a driver's performance on field  


sobriety tests, made in the course of his arrest for driving under the influence, for use in  

                                                             62   In fashioning a sanction we considered "the  


a later license revocation proceeding. 

degree of culpability on the part of the [S]tate, the importance of the evidence lost, the  


prejudice suffered by the accused, and the evidence of guilt adduced at the trial or  


hearing."63          We  decided  that  the  videotape  evidence  was  important,  that  its  loss  


"infringed Thorne's ability to fully contest the issue" of whether he appeared inebriated  


at the time of his arrest, and that the burden on the State to preserve the videotape was  


slight.64     We concluded that "considerations of fundamental fairness dictate that where  


the burden of preservation is so slight," the State bore "a heavy burden in justifying [the  


evidence's] destruction," a burden that it failed to carry.65   We remanded the case to the  


hearing officer in the license revocation proceeding "with directions to presume that the  


                                                                             66 theinferencewas thus required rather  

videotapewouldhavebeen favorableto Thorne";                                                                                        


than permissive.  


                     We have never applied  Thorne's due process analysis to a civil case in  


which Sweet's burden-shifting remedy for spoliation was available to address the same  


           61         774  P.2d   1326  (Alaska   1989).  

           62        Id.  at   1330.  

           63        Id.  at  1331  (citing  Putnam  v.  State,  629  P.2d  35,  43-44  (Alaska  1980);  State  

v.  Contreras,  674  P.2d  792,  821  (Alaska  App.   1983)).    

           64        Id.  at   1330-31.  

           65        Id.  at   1330-31.  

           66        Id. at 1331.  


                                                                  -29-                                                             7167

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

circumstances:    i.e., the lost evidence was clearly important and the party that lost it                                                          


should have recognized the need                              to preserve it.                                                                

                                                                                            And we decline to decide today  


whether  a  permissive  inference  instruction  must  necessarily  be  considered  as  an  


alternative to a burden-shifting instruction, or what a litigant has to show to be entitled  


to a permissive inference instruction under Alaska law. Several considerations dissuade  


us from deciding these issues.  First, adverse inference instructions take different forms  


in different jurisdictions, particularly with regard to whether a duty to preserve the  


evidence is a prerequisite, and the advantages of the varied approaches have not been  

                                      68    Second, even if Alaska law were clear on this issue and the  


briefed in this appeal. 

superior  court  had  refused  to  give  an  instruction  stating  the  law,  we  would  not  


necessarily find error, as we review such decisions for abuse of discretion.69   And third,  


even if the failure to give the proposed instruction was an abuse of discretion, on this  


record it could only have been harmless.  


                       As noted above, when the superior court denied Todeschi's request for an  


adverse inference instruction, it invited him to make the same point in argument, which  


            67         See Sweet v. Sisters of Providence in Wash.                                  , 895 P.2d 484, 491 (Alaska          


            68         In support of his cursory argument for a permissive adverse inference,  


Todeschi cites only Thorne, 774 P.2d at 1330-31, as he did below. Sumitomo's briefing  


on the issue concerns itself only with the facts.  


            69         Mills v. Hankla, 297 P.3d 158, 165 (Alaska 2013) (finding no clear error  


in superior court's conclusion that relevant records were not missing from personnel file  


and "that it was not an abuse of discretion for the superior court to deny sanctions");  


Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000) ("The decision whether to include  


a particular instruction rests with the discretion of the trial court." (quoting Coulson v.  


Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n.21 (Alaska 1999))).  


                                                                       -30-                                                                  7167

----------------------- Page 31-----------------------


his counsel did strongly and repeatedly.                                                                                             Argument may help clarify instructions or                                                                                        


ameliorate defects in them.                                                                                                                                                                                                                                      

                                                                                                And the spoliation theme of Todeschi's argument was  


supported by one of the jury instructions that was given, informing the jury that "[i]f  


weaker and less satisfactory evidence is offered when it appears that stronger and more  


satisfactory evidence was within the power of one party to produce, the evidence offered  


should be viewed with caution."  


                                          We conclude that the jury was made well aware that it was free to draw an  


adverse inference from missing telephone records, billing records, and emails and that  


the instructions that were given did not conflict with this perception.  The burden of  

                                                                                                                                                  72       On this record we cannot say that the  


proving prejudicial error rests on the appellant. 

lack  of  a  permissible  adverse  inference  instruction  probably  affected  the  jurors'  


                     70                   Todeschi'scounselargued that                                                                   records ofcommunications in acertaintime                                                                               

period had "gone poof" and that "[c]oincidentally, or not so coincidentally, Halloran                                                                                                                                                             

testified that he destroyed [legal bills] about the same time the lawsuit in this case was                                                                                                                                                                       

filed"; that a deleted email from Halloran to Brokaw "might have also had a message"                                                                                                                                                         

acknowledging   the   illegality   of   "the   job   description   with   the   250-pound   lifting  

requirement"; that Halloran had "a severe credibility problem" because he had "admitted                                                                                                                                                        

that his law firm and Brokaw had destroyed evidence in this case, including his own                                                                                                                                                                            

billing records and attachments to e-mails," leaving the jury with "unrefuted" evidence                                                                                                                                                          

that Sumitomo had retaliated against Todeschi for pursuing his worker's compensation                                                                                                                                              

claim; and that the destruction of emails and phone records "to confirm that [Sumitomo]                                                                                                                                                 

did anything" was "an uncommon thing to happen" - "it is not usual to have records                                                                                                      

destroyed, people admitting they destroyed them."                                                                                                               

                     71                   See Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) ("[W]e have  


repeatedly held that ambiguities and potential flaws in jury instructions can be cured by  


the arguments of the parties."); Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993)  


("The parties' arguments can cure defects or omissions in jury instructions.").  


                     72                   City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004).  


                                                                                                                                 -31-                                                                                                                         7167

----------------------- Page 32-----------------------

judgment.   We therefore conclude that any error in failing to give such an instruction                                                           


must have been harmless.                                       


             D.	          We Cannot Conclude That The Jury Instruction Arguably Raising An  


                          Untimely  Statute  Of  Limitations  Defense  Probably  Affected  The  



                          Todeschi alleged that the former human resources manager at Pogo Mine,  


KimWitt, threatened himin 2008 that if he continued to pursue a worker's compensation  


 claim based on his 2007 injury "[t]here would be repercussions, up to and possibly  


 including [Todeschi's] job."  This allegation, he contended, supported his claim that he  


was fired in 2010 in retaliation for his resurrection of the workers' compensation claim.  


 On  appeal  he  argues  that  Jury  Instruction  12  unlawfully  complicated  his  workers'  


 compensationdiscrimination claimby advising thejury ofastatuteoflimitations defense  


that Sumitomo had never actually raised.  The instruction provided:  


                          You have heard testimony that Kim Witt engaged in certain  


                          conduct.   Sumitomo cannot be held responsible for Witt's  


                          conduct before 2009. However, if you find that Witt engaged  


                          in certain conduct before 2009 you may (but need not) further  


                          find  that  it  provides  context  for  Sumitomo's  actions  or  


                          omissions in 2010.  


 (Emphasis added.) The statute of limitations for workers' compensation discrimination  



 claims is two years, and Todeschi brought his claim in February 2011. 

             73           Id.  (stating that we evaluate whether an erroneous jury instruction "was                                                          

prejudicial by putting ourselves 'in the position of the jurors and determining whether   

the error probably affected their judgment' " (quoting                                                Gen. Motors Corp. v. Farnsworth                                ,  

 965 P.2d 1209, 1214 (Alaska 1998))).                                       

             74           AS 09.10.070(a) ("Except as otherwise provided by law, a person may not  


bring an action . . . upon a liability created by statute . . . unless the action is commenced  


within two years of the accrual of the cause of action.").  


                                                                                -32-	                                                                        7167

----------------------- Page 33-----------------------

                             Sumitomo never raised a statute of limitations defense before trial.                                                                               The  

assertion of a defense for the first time mid-trial, by way of a jury instruction, would                                                                                   

                                                                75     We note that Sumitomo took advantage of the jury  

likely be unfairly prejudicial.                                                                                                                                                

instruction to argue in its closing that "Mr. Witt's conduct cannot form the basis of a  


finding against Sumitomo in this case.  That's because of statute of limitations issues."  


                             On the other hand, as Sumitomo argues, there was no apparent reason for  


it to assert the statute of limitations as an affirmative defense before trial. The causes of  


action Todeschi alleged in his 2011 complaint and pursued at trial were based on his  


termination  in  2010.76                             Witt's alleged  conduct in  2008,  as described in  Todeschi's  


complaint, was relevant to Todeschi's claim that he had been unlawfully terminated for  


pursuing a workers' compensation claim, but the challenged jury instruction specifically  


allowed the evidentiary use of Witt's conduct to "provide[] context for Sumitomo's  


actions or omissions in 2010." Accordingly, Todeschi's counsel relied heavily on Witt's  


actions in his closing argument, telling the jury that "Sumitomo, here in court, did not  


seriously contest that Kim Witt threatened Todeschi with his job, and that Todeschi  


acquiesced only under pressure"; that Witt's threat was realized when Todeschi renewed  


              75            Barrett   v.   Byrnes,   556   P.2d  1254,   1255   (Alaska   1976)   (holding   that  

defendants waived a statute of limitations defense when it "was not raised prior to trial                                                                                       

or   in   the   opening   statements   of   the   appellee,   but   rather   for   the   first  time   after   the  

appellant had rested her case" (internal citation omitted)).                                                                    But see Blake v. Gilbert                               ,  

702 P.2d 631, 638-39 (Alaska 1985) (holding that the superior court did not abuse its                                                                                              

discretion by allowing a defendant to raise a new statute of limitations defense in his                                                                                           

amended   answer   because   raising   it   before   trial   did   not   prejudice   the   plaintiff,  

distinguishing  Barrett),  overruled on other grounds by Bibo v. Jeffrey's Rest.                                                                                   , 770 P.2d     

290 (Alaska 1989).          

              76            The trial court asked Todeschi what damages he suffered from Witt's  


alleged threat in 2008, to which heresponded, "[A]t that point it's accumulating medicals  


that aren't being paid for."  He did not seek medical expenses as damages in this case,  


and they do not appear relevant to his claims for wrongful termination.  


                                                                                        -33-                                                                                 7167

----------------------- Page 34-----------------------

his pursuit of the workers' compensation claimin 2010; and that "given Witt's threat and                                                                                                                                                                                      

the   termination  that   quickly   followed   the   reassertion   of his                                                                                                                                  compensation   claim,   it  

certainly appears to have been at least one of the substantial factors in [Sumitomo's]                                                                                                                                                     

decision to sack Mr. Todeschi."                                                                          

                                            Todeschi does not dispute that the jury was properly instructed on the                                                                                                                                                            

elements   of   his   workers'   compensation   discrimination   claim.     And   Instruction   12  

expressly preserved the jury's ability to consider Witt's conduct when deciding that                                                                                                                                                                                        

claim.   To the extent the instruction at the same time precluded the jury from holding                                                                                                                                                                         

Sumitomo responsible for Witt's conduct, we agree that it presents an ambiguity - one                                                                                                                                                                                        

that could have been compounded by Sumitomo's mention in closing argument of a                                                                                                                                                                                                       

statute of limitations defense it had never pleaded. But even if erroneous, Instruction 12                                                                                                                                                                                       

                                                                                                                                                                   77  We determine prejudice by putting  

"is grounds for reversal only if it caused prejudice."                                                                                                                                                                                                             

ourselves "in the position of the jurors and 'determin[ing] whether the error probably  


                                                                                     78                                                                                                                                        79  and considering  

                                                                                             Reading the jury instructions as a whole,                                                                                                             

affected their judgment.' "                                                                                                                                                                           


the parties' arguments to the jury about the evidence they should consider in deciding  


Todeschi's claims, we cannot conclude that the jury's verdict was probably affected by  


the ambiguity in Instruction 12. It is not probable that the jury believed it was precluded  


                      77                    City of Hooper Bay v. Bunyan                                                                     , 359 P.3d 972, 978 (Alaska 2015) (quoting                                                                                                     

 Thompson v. Cooper                                                  , 290 P.3d 393, 398-99 (Alaska 2012)).                                                                 

                      78                   Id. (quoting Thompson, 290 P.3d at 399).  


                      79                   Id. ("When reviewing a trial court's denial of a proposed instruction, our  


inquiry focuses upon whether the instructions given, when read as a whole, adequately  


inform the jury of the relevant law." (quoting Thompson, 290 P.3d at 398)).  


                                                                                                                                      -34-                                                                                                                               7167

----------------------- Page 35-----------------------

 from considering Witt's conduct in 2008 in deciding whether Sumitomo was liable for                                                                                                                                                                                                                                                                                                                                                                        


its own conduct in 2010 in terminating Todeschi's employment.                                                                                                                                                                                                                                                                                                       

V.                                  CONCLUSION  


                                                                       We AFFIRM the judgment of the superior court.  

                                    80                                 Todeschi   also  argues   "that   the   [superior   court]   should   have   given   an  

instruction that permitted an award of emotional distress damages" for his claim for                                                                                                                                                                                                                                                                                                                                                                       

breach of the covenant of good faith and fair dealing "under the unique facts of this                                                                                                                                                                                                                                                                                                                                                                  

case."  Such damages are not ordinarily recoverable on contract claims.                                                                                                                                                                                                                                                                                                                           See Hancock  

v.  Northcutt, 808 P.2d 251, 258-59 (Alaska 1991) (discussing the types of contracts,                                                                                                                                                                                                                                                                                                                                  

"highly personal and laden with emotion," that may present exceptions to the general                                                                                                                                                                                                                                                                                                                                               

rule precluding emotional distress damages in contract actions).                                                                                                                                                                                                                                                                                            Todeschi's minimal   

briefing of the issue gives us no basis on which to conclude that the superior court erred.                                                                                                                                                                                                                                                                                                                                                                                    

See Hagen v. Strobel,                                                                                              353 P.3d 799, 805 (Alaska 2015) ("[W]here a point is given only                                                                                                                                                                                                                                                                  

 a cursory statement in the argument portion of a brief, the point will not be considered                                                                                                                                                                                                                                                                                                                        

on appeal." (alteration in original) (quoting                                                                                                                                                                                     Glover v. Ranney                                                                            , 314 P.3d 535, 545 (Alaska                                                                          


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