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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. J.G. Pattee, Inc. (9/21/2018) sp-7301
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are r equested to bring errors to the attention of the Clerk of the Appellate C ourts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LYDIA JOHNSON, individually )
and as personal representative for the ) Supreme Court No. S-16303
ESTATE OF DAVY JOHNSON, )
) Superior Court No. 3AN-11-10280 CI
Appellant, )
)
O P I N I O N
v. )
) No. 7301 - September 21, 2018
)
J.G. PATTEE, INC.; MATTHEW
)
OBERLANDER; and JOHN G. PATTEE,
)
Appellees. )
)
rom the Superior Court of the State of Alaska, Third
Appeal f
Judicial District, Anchorage, Paul E. Olson, Judge.
Appearances: Jeffrey J. Barber, Barber & Associates, LLC,
Anchorage, for Appellant. Darryl L. Thompson, Darryl L.
Thompson, P.C., Anchorage, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
BOLGER, Justice, dissenting.
I. INTRODUCTION
During a personal injury trial the defense expert witness varied from his
written report, expressing new opinions to justify a bar employee's use of force. In his
report the expert had described the force as a reasonable defensive tactic; at trial he
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testified in addition that the bar employee was confronting the plaintiff at the bar
entrance, that the bar had a duty to keep the entrance safe and clear, that local police rely
on bar personnel to keep the area safe and clear, and that the bar employee was using a
reasonable "soft hand escort hold" when the incident occurred. The plaintiff then sought
to cross-examine the expert with grand jury testimony by an Anchorage police officer
- testimony the expert had been given to review prior to writing his report - that was
contrary to key points of the expert's new opinions. The superior court refused to allow
this cross-examination, telling the plaintiff that she could try to call the officer as an
expert witness. The plaintiff later tried to call the officer as a hybrid expert witness, but
the defendants objected because he was not on the plaintiff's witness list. The superior
court then refused to allow the officer to testify. The jury found the bar employee was
justified in using reasonable force to defend against a trespass.
On appeal the plaintiff argues that the superior court erred by precluding
her cross-examination of the expert and her calling the officer to testify as a rebuttal
witness. Because we conclude it was a prejudicial abuse of discretion to preclude the
officer from testifying as a rebuttal witness with respect to the defense expert's new and
unexpected trial opinions, we vacate the judgment and remand for a new trial without
reaching the cross-examination issue.
II. FACTS AND PROCEEDINGS
A. Davy Johnson's Injury; Lawsuits
Davy Johnson suffered askull fractureafter hitting hishead on thesidewalk
during an incident outside an Anchorage bar. Matthew Oberlander, a bartender assisting
the bar's security, had been told by the bar's general manager that Davy was prohibited
from reentering the bar or obstructing its doorway. When Davy refused to move from
his position on the sidewalk outside the bar's entrance, Oberlander pushed Davy, who
fell backward and struck his head on the sidewalk.
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Davy filed suit against the bar's owner, J.G. Pattee, Inc., its dominant
shareholder, John G. Pattee (collectively Pattee), and Oberlander for negligently or
recklessly causing Davy's injuries. Following Davy's death about a year later, the
parties stipulated to the substitution of his wife, Lydia Johnson, the personal
representative of his estate, in the lawsuit. Lydia also filed a separate suit against the
same defendants in her individual capacity; the superior court later consolidated the
cases.
B. Oberlander'sAssault Charge; OfficerWitte's GrandJury Testimony;
Protective Order
Oberlander was charged with criminal assault arising from the incident.
Gregory Witte, a police officer who arrived at the scene, testified before the grand jury.
Witte had not witnessed Oberlander's push or Davy's fall, but Witte later viewed
security camera footage of the incident and testified that Oberlander had pushed Davy
up and out from beneath his rib cage to get him off balance. Witte testified that Davy
was "clearly standing on the sidewalk portion [that] everybody has a right to walk down"
and that, if he was "causing . . . a problem in the public area," the police should have
been called. Following Oberlander's acquittal of the assault charge, the superior court
issued a protective order precluding the parties "from introducing any evidence or
testimony that could lead the jury to conclude that Oberlander was arrested, indicted and
criminally prosecuted."
C. Preliminary Witness List; Motions In Limine To Strike Police
Officers' Testimony; Final Witness List
Lydia's preliminary witness list identified two police officers other than
Witte and "[a]nyone . . . attached to troopers or the Anchorage Police Department or
other police agencies [to] testify to liability and give 'other expert opinions' as to why
any defendant is liable for negligence . . . and other opinions." Oberlander filed a
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pretrial motion to limit the named officers' opinions. Pattee separately moved to
preclude the officers from testifying as experts at all, contending they were merely lay
witnesses "in the exact same position as the jurors to evaluate the video." Lydia opposed
both motions, arguing that she did not "expect to call police officers unless necessary in
rebuttal" and that it would be premature and improper to preclude the officers from
testifying as experts. The superior court denied both motions. Lydia's final witness list
did not include any police officers, but it did list "[a]ny proper rebuttal witness."
D. Examination Of The Defense Expert
After reviewing video of the incident, the grand jury transcript, and other
documents, the defense expert, retired Bellevue, Washington police chief Donald Van
Blaricom, issued a report stating that "Oberlander did not use excessive force" and that
when he pushed Davy it was "an appropriate defensive tactic." The report made no
mention of the bar's responsibility to keep the sidewalk area around its entryway safe
and clear or whether Oberlander's use of force was appropriate to keep the bar's
entryway clear or to stop Davy from reentering the bar.
During the defense case-in-chief, Pattee's counsel asked Van Blaricom a
series of questions about whether, in his experience, a bar is responsible to keep the area
around its entryway safe and clear. Van Blaricom responded, "Yes. . . . [y]ou have to
keep it clear . . . for safety and other reasons." Lydia's counsel asked for a bench
conference outside the jury's presence and objected that Van Blaricom was testifying to
opinions not disclosed by and outside the scope of his expert report, which had been
marked as an exhibit. Lydia's counsel argued in part: "There's nothing in here [- by
clear implication VanBlaricom'sexpert report -] where Mr. Van Blaricomis indicating
that sidewalk that the bar had a responsibility to keep clear, there's nothing in here
supporting what the basis of his opinions in that regard might be, anything about the
location . . . ." The court responded: "I don't quite understand, what is your objection
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though?" Counsel replied: "My objection is to his opinion about whether [Davy] was
entitled to be where he was at the time is beyond the scope of his report."
The court overruled the objection. In response to further questioning by
Pattee's counsel, Van Blaricom then said that a bar has a general obligation to keep its
entryway safe and clear and reitrated that "[y]ou have to keep the entryway clear." Van
Blaricom later testified that Oberlander had used reasonable force "to clear that space,"
describing the push as "a soft hand hold, an escort hold," and that Oberlander, as a bar
employee, had "a duty to move [Davy] out of that area" to prevent Davy blocking the
bar's entryway. Van Blaricom then further explained that "police rely on bartenders and
the bar personnel to keep that area clear. . . . [T]his is something that has to be resolved,
after all they are trying to conduct a business."
Given the protective order shieldingthejury fromevidenceofOberlander's
prior criminal proceedings, Lydia's counsel made an offer of proof outside the jury's
presence of Witte's "contrary" grand jury testimony and sought to cross-examine
Van Blaricom "to undermine the credibility and the basis of his report and the findings
and some of the testimony" he provided on direct examination. Van Blaricomresponded
that he did not recall whether he had reviewed Witte's grand jury testimony, that he
"would pay absolutely no attention to the officer's interpretation of the video," and that
Davy "didn't have a right to be on the sidewalk where he was blocking the entrance."
Oberlander's counsel objected to Lydia's "use [of] Witte's testimony to
impeach [Van Blaricom] . . . as if he's another expert." Lydia's counsel argued that
Witte's grand jury testimony was relevant to undermine the accuracy of Van Blaricom's
expert report and opinions. The court precluded the use of Witte's grand jury testimony
in cross-examination. The court explained, however, that Lydia could try to introduce
Witte's opinion elsewhere, such as "try[ing] to call [Witte] as an expert," recognizing
that it would have to "deal with the objections for failure to [list] him as an expert."
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Following the court's ruling, Lydia's counsel reiterated the necessity of
using Witte's grand jury testimony to challenge Van Blaricom's trial testimony that the
force Oberlander used was reasonable to prevent Davy from trespass, rather than, as
Van Blaricom's earlier expert report had concluded, that the force used was reasonable
to create defensive space. Lydia's counsel argued that Van Blaricom did not initially
come to this "easier" conclusion of trespass in his report because of Witte's grand jury
testimony and that using Witte's grand jury testimony in cross-examination was
necessary to challenge Van Blaricom's change of opinion. The court again ruled that it
was "not going to allow it."
E. Preclusion Of Witte From Testifying In Rebuttal
After the defense case closed, Lydia informed the court that Witte was
under subpoena to testify and that she "still intend[ed] to offer him for his hybrid witness
opinions . . . [of] his evaluation of the video . . . [and] regarding the issue with the
sidewalk and whose responsibility it was to clear the sidewalk." Oberlander objected,
arguing that Witte was not on Lydia's final witness list, that he was not an expert, and
that his "hybrid expert testimony" was "inappropriate" rebuttal testimony because it
would only "bolster an opinion from an officer" providing hybrid legal testimony. In
response to the court's observation that "[i]t sounds like you're trying to call him as an
expert witness," Lydia explained that Witte would be a hybrid witness. The court denied
Lydia's request to call Witte as a rebuttal witness.
F. Verdict; Appeal
The jury returned a defenseverdict, finding the"defendants [were] justified
in using reasonable force in defense of attempted trespass." The court entered judgment
against Lydia.
-6- 7301
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Lydia appeals, arguing that the superior court erred by precluding cross-
examination of Van Blaricom using Witte's grand jury testimony and by precluding
Witte from testifying as a rebuttal witness.
III. STANDARD OF REVIEW
We generally review the superior court's "decision to admit or exclude
evidence, including expert witness testimony, for abuse of discretion and will . . . reverse
1
an erroneous decision [only] if it affected the substantial rights of a party."
IV. DISCUSSION
A. It Was An Abuse Of Discretion To Preclude Witte From Testifying As
A Rebuttal Witness On The New Issue Of Police Reliance On Bar
Employees To Remove Unwelcome Patrons From Bar Entrances.
Van Blaricom testified that Oberlander had "a duty" to move Davy out of
the bar's entryway and that "police rely upon the bartenders and the bar personnel to
keep that area clear." This was well beyond the scope of Van Blaricom's expert report,
which concluded only that Oberlander "did not use excessive force" because the "push
[wa]s an appropriate defensive tactic to gain space for time to react to whatever an
intoxicated adversary may do next." Van Blaricom's testimony was also contrary to
Witte's grand jury testimony that "when [Davy was] standing on a public right of way,
the bar doesn't have any more right to enforce that than you or I do" and that the
2
appropriate protocol to deal with "a problem in the public area" is to "call the cops."
1 Cartee v. Cartee, 239 P.3d 707, 721 (Alaska 2010) (first citing Nelson v.
Progressive Corp. , 976 P.2d 859, 865 n.9 (Alaska 1999); then citing Dobos v. Ingersoll ,
9 P.3d 1020, 1023 (Alaska 2000)).
2 Pattee and Oberlander argue that Witte's "proffered opinion regarding the
public nature of the sidewalks and who controls the sidewalk were questions of law and
experts are not allowed to testify as to conclusions of law." Analysis of the sidewalk as
a public right of way may be an impermissible conclusion of law or it may be a mixed
(continued...)
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It is evident from the record that Lydia made clear to the court the basis for
her argument to present Witte's testimony. When Van Blaricom first began testifying
about a bar's obligation to keep the entryway safe and clear, Lydia objected that this line
of opinion was outside the scope of Van Blaricom's expert report. The report was
marked as an exhibit and Lydia explained to the court the limits of Van Blaricom's
written opinions. When the court later would not allow Lydia's proposed cross-
examination of Van Blaricom with Witte's grand jury testimony, the court said that
Lydia could try to call Witte as an expert, subject to the objection that he was not on her
witness list. Lydia then emphasized to the court that Van Blaricom had changed his
opinion from self-defense - in his written report - to response to trespass - as he
would ultimately testify at trial - as a result of Witte's grand jury testimony. The court
again denied the cross-examination effort.
After the close of the defendants' cases, Lydia advised the court that she
intended to call Witte to testify as a rebuttal witness. The offer was, in part, for a hybrid
expertwitness opinion regarding whose responsibility it was to clear the sidewalk around
the bar; in other words, where the bar ended and the public sidewalk began based on
3 This was the same point Lydia had raised
Witte's knowledge of patrolling the area.
earlier in the trial during her attempt to cross-examine Van Blaricom with Witte's grand
2 (...continued)
question of fact and law. But to the extent Witte's testimony would have challenged Van
Blaricom's opinion that "police [officers] rely upon bartenders and the bar personnel to
keep that area clear," the opinion would not be a legal conclusion but rather Witte's
understanding of Anchorage police officers' role in moving or redirecting unwelcome
bar patrons from an establishment's entrance. Witte's understanding or experience
would be permissible hybrid witness testimony.
3 See Getchell v. Lodge, 65 P.3d 50, 55-57 (Alaska 2003) (concluding police
officer's "fact"and "expert"testimony constitutedhybrid expert testimony subject toand
permissible under Evidence Rule 702).
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4
jury testimony. After Oberlander and Pattee objected that Witte's name was not on a
5
witness list, the court refused to allow his testimony.
But Lydia's failure to disclose Witte on her witness list does not necessarily
preclude Witte fromtestifying. "The standard for determining whetherarebuttal witness
should be allowed to testify when the witness's name was not timely identified . . . [is]
'dependent on whether the testimony sought to be rebutted could reasonably have been
anticipated prior to trial.' "6 Prior to trial Lydia could not have reasonably anticipated
Van Blaricom's testimony that Oberlander had a duty to move Davy out of the entryway
area and that police rely upon a bar and its personnel to keep the bar's entryway clear
4 We disagree with the dissent's viewthatLydia's appeal is forfeited because
her attorney did not again express to the superior court that Van Blaricom had testified
to opinions outside the scope of his expert witness report and that the rebuttal testimony
was necessary to respond to the new opinions. Neither Pattee nor Oberlander made this
argument to us in their appellee briefs, so Lydia never had a reason to address it. But it
seems clear from the record that Van Blaricom wrote a report with limited expert
opinions; the report was marked as an exhibit at trial; defense counsel elicited new
opinions from Van Blaricom during the defense case-in-chief; Lydia's counsel objected
and pointed to the expert report, but was overruled; Van Blaricom testified that his new
opinions were not in the report; and, when Lydia's counsel sought to have a contested
rebuttal witness testify - a witness whose name was bandied about in connection with
Van Blaricom's new opinions during the testimonial disputes - the parties and the court
knew the context for the rebuttal witness offer. This likely explains why Pattee and
Oberlander did not make the new argument raised sua sponte by the dissent.
5 Although the defendants also argued that Witte was an improper hybrid
expert, the superior court expressed its familiarity with Getchell and focused on the
witness list issue.
6 Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1277 (Alaska 1988) (alteration
in original) (quoting City of Kotzebue v. McLean, 702 P.2d 1309, 1315 (Alaska 1985)).
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----------------------- Page 10-----------------------
7
and safe, because those opinions were not included in his expert report. Rather, the
theory of the bar's duty was presented for the first time in the defense's case-in-chief by
Pattee's counsel eliciting Van Blaricom'scorroboratingtestimonyon direct examination.
Based on Witte's grand jury testimony, his expert trial testimony would
have been proper rebuttal testimony. "[R]ebuttal testimony is any competent evidence
which explains, is a direct reply to, or a contradiction of material evidence introduced by
8 Witte's expected trial testimony, as an Anchorage police
. . . a party in a civil action."
officer, may have enlightened the jurors to the credibility of Van Blaricom's contrary
opinion. It was an abuse of discretion to preclude Witte from testifying as a rebuttal
witness.
B. The Error Was Not Harmless.
We must next decide whether the error was harmless.9 We "will . . . reverse
an erroneous decision [only] if it affected the substantial rights of a party."10 The error
in refusing to permit Witte to provide rebuttal testimony had "substantial influence on
the verdict"11 because Witte's testimony directly addressed the only issue the jury
7 See id.
8
Id. at 1277 (quoting Riffey v.Tonder, 375 A.2d 1138, 1145 (Md. Spec. App.
1977); 6 Wigmore, Evidence § 1873 (Chadbourn rev. 1976)).
9 See Jones v. Bowie Indus., Inc., 282 P.3d 316, 328 (Alaska 2012) (stating
that "[e]ven though admission of evidence is erroneous, we will reverse only if the error
was not harmless" (citing Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007))).
10 Cartee v. Cartee, 239 P.3d 707, 721 (Alaska 2010) (citing Dobos v.
Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000)).
11 See Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 353 (Alaska
2012) ("The test for determining whether an error was harmless is 'whether on the whole
record the error would have had a substantial influence on the verdict of a jury of
(continued...)
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----------------------- Page 11-----------------------
ultimately decided on the special verdict form: whether the "defendants [were] justified
in using reasonable force in defense of attempted trespass." Witte's rebuttal testimony
could have assisted the jury in deciding whether Oberlander should have contacted the
police to remove Davy from the sidewalk in front of the bar's entrance rather than using
forceto moveDavyhimself. Becausetheerroneousdecision affectedLydia'ssubstantial
rights, it is not harmless error. 12
V. CONCLUSION
The superior court's final judgment is VACATED, and we REMAND for
a new trial.
11 (...continued)
reasonable lay[people].' " (alteration in original) (quoting Noffke v. Perez, 178 P.3d
1141, 1147-48 (Alaska 2008))).
12 Because we are reversing on this issue, we do not need to address Lydia's
other claims on appeal.
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----------------------- Page 12-----------------------
BOLGER, Justice, dissenting.
The court's opinion reverses this judgment based on Lydia Johnson's
appellate argument that Donald Van Blaricom's testimony could not have been
anticipated prior to trial. But Lydia did not make this argument to the superior court
when she offered Officer Witte's rebuttal testimony, and the superior court did not rule
on this argument at that time.
Lydia offered two reasons when she asked to call Witte as a rebuttal
witness. First, she asked to call him "simply based on his experience and training, his
evaluation of the video for example, to testify in accordance with his observations which
he did during the grand jury testimony in this particular instance." Second, she was
"offering his testimony regarding the issue with the sidewalk and whose responsibility
it was to clear the sidewalk, or you know, basically be responsible for where the bar
ended and where the sidewalk and the public sidewalk began."
Lydia did not mention Van Blaricom at all when she made this request.
And she did not provide the judge with sufficient information to determine whether she
had been surprised by Van Blaricom's testimony. In particular, there was no showing
that Lydia ever provided the judge with a copy of Van Blaricom's report.
To preserve an issue for appeal, a party must raise the issue in the trial court
1 In particular, a party who offers evidence based
and specify the grounds for doing so.
on one theory of admissibility may not argue a "substantially different" theory on
appeal.2 "This preservation rule serves 'important judicial policies: ensuring that there
is "a ruling by the trial court that may be reviewed on appeal, . . . afford[ing] the trial
1 Ivy v. Calais Co., 397 P.3d 267, 276 (Alaska 2017).
2 Jones v. Bowie Indus., Inc ., 282 P.3d 316, 339 (Alaska 2012).
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----------------------- Page 13-----------------------
court the opportunity to correct an alleged error," and creating a sufficient factual record
so "that appellate courts do not decide issues of law in a factual vacuum." ' " 3
I agree that Lydia had previously objected that Van Blaricom's testimony
was outside the scope of his report. In my opinion, however, Lydia was required to
explicitly state her arguments for admission of Witte's rebuttal testimony. At that time,
if she had raised the argument that Van Blaricom's testimony could not reasonably have
been anticipated, then she could have made an offer of proof to support her argument.4
Then the defendants could have responded to her argument, and the superior court could
have ruled on it. Lydia is not entitled to a new trial because she did not bring this issue
to the superior court's attention.
3 Ivy, 397 P.3d at 276 (quoting Johnson v. State , 328 P.3d 77, 82 (Alaska
2014) (omission in original) (alteration in original)).
4 Alaska R. Evid. 103(a)(2).
-13- 7301
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