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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Evvie Punches v. McCarrey Glenn Apartments LLC and Weidner Property Management LLC (2/12/2021) sp-7502
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
EVVIE PUNCHES, )
) Supreme Court No. S-17465
Appellant, )
) Superior Court No. 3AN-17-06784 CI
v. )
) O P I N I O N
MCCARREY GLEN APARTMENTS, )
LLC and WEIDNER PROPERTY ) No. 7502 - February 12, 2021
MANAGEMENT LLC, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Yvonne Lamoureux, Judge.
Appearances: Stephen Merrill, Anchorage, for Appellant.
Gregory R. Henrikson, Walker &Eakes,LLC, Anchoragefor
Appellees.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Stowers, Justice not participating.]
CARNEY, Justice.
I. INTRODUCTION
A tenant sued her former landlord and its property management company,
asserting that the companies negligently failed to eradicate mold in her apartment,
thereby breaching the habitability provisions of the lease and causing her to suffer
personal injury and property damage. After considerable delay involving discovery
----------------------- Page 2-----------------------
disputes, the superior court granted summary judgment dismissing the tenant's personal
injury claim. The parties went to trial on the tenant's property damage and contract
claims after the superior court precluded the tenant from introducing evidence relating
to her personal injury claim. The jury rejected the tenant's claims, and judgment was
entered in favor of the companies. The tenant appeals, contending that the court erred
by ruling against her in discovery disputes, by denying her a further extension of time
to oppose summary judgment, and by limiting the evidence she could present at trial.
We conclude that the court did not abuse its discretion when making the challenged
rulings, and we therefore affirm the judgment against the tenant.
II. FACTS AND PROCEEDINGS
A. Punches's Tenancy And Health Issues
In March 2014, Evvie Punches rented a one-bedroom apartment in the
Conifer Groves complex in Anchorage; she renewed the lease in April 2015. The
complex was owned by McCarrey Glen Apartments, LLC and managed by Weidner
1 Punches worked a three-weeks-on and three-weeks-off
Property Management, LCC.
schedule at Prudhoe Bay. She would return to her apartment in Anchorage for her weeks
off.
On April 1, 2014, Punches submitted a move-in report to Weidner. In the
report Punches listed problems with her apartment, including "dirty" walls and floors.
The report did not mention mold or smells.
In May Punches reported that the kitchen sink had begun to leak, "blister,"
and "stink." In July Punches reported that the sink was still leaking and that the kitchen
walls "were streaked with a colored substance."
1
We refer to all of these entities as "Weidner."
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From September 2014 through March 2015 Punches made additional
complaints to the property manager about air quality in her apartment and mold around
her toilet. These issues continued despite a number of attempts by Weidner's
maintenance staff to fix them, and Punches renewed her lease in April 2015.
In November 2015 Punches went to an Anchorage clinic for treatment of
a rash on her head and neck. A physician's assistant diagnosed her with ringworm and
prescribed treatment with medication and a shampoo. A few days later Punches again
complained to Weidner about mold and wet carpet. When the property manager tried
to arrange an inspection, Punches refused to allow maintenance staff into her apartment
because she would not be home.
Punches returned to the same clinic for a follow-up medical exam in
January 2016. Because her symptoms had not disappeared completely following the
prescribed treatment, the physician's assistant prescribed another six weeks of the same
treatment and recommended that she see a dermatologist. The dermatologist noted that
Punches had a rash on the back of her head and prescribed a dandruff shampoo.
Punches wrote letters to Weidner in December 2015 and January 2016,
complaining that her requests for inspection and repairs due to mold and water damage
had not been taken seriously. Punches scheduled a meeting with Weidner's area director
in mid-February 2016. The necessary repairs were never completed, however, because
Punches did not allow maintenance staff into her apartment. Punches stopped paying
rent after February.
In early March while working at Prudhoe Bay, Punches visited the clinic
there and reported that she had been ill for the previous three days. She received
breathing treatment and an IV and was sent home to Anchorage. The next week she had
a follow-up appointment at the Anchorage clinic; the physician's assistant noted that
Punches was "feeling improved" and had neither influenza nor a fever.
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Punches moved out of her apartment on March 14, 2016 after delivering
Weidner a "Notice of Defects in Essential Services." Her notice listed issues with the
front door, mold on the ceiling, mold on the carpet, damage from a previous fire, water
damage, and "insufficient windows" that permitted "free flowing air throughout" the
apartment.
Punches moved to Minneapolis some time after she left her apartment. She
sought care in Minnesota for various skin infections and reported that she had been
exposed to mold for two years. She continued to pursue a connection between mold
exposure and her recurring skin infections and other ailments.
B. Initial Proceedings
In May 2017 Punches filed a complaint in superior court against Weidner
and filed an amended complaint in June. Punches alleged that from the outset of her
lease "the apartment suffered from major defects needing immediate repair." Punches
claimed that her sink was "leaking substantially"; her ceiling was leaking and required
repairs; and "the entryway door to the apartment had been damaged . . . leaving a large
open gap to the outside even when the door was closed and locked." Punches also
alleged that her apartment had suffered damage from a fire in the building. She claimed
that Weidner's failure to make necessary repairs violated the Alaska Residential
2 and as a result she lost the "reasonable enjoyment of her
Landlord-Tenant Act
apartment." She also alleged that Weidner's failure to make repairs "constituted
negligence . . . that caused serious illnesses" and that Weidner's actions amounted to
"reckless disregard of [her] health and property interests."
2
AS 34.03.100(a)(1), (3) (requiring landlord to keep premises in "fit and
habitable condition" including making necessary repairs).
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In addition Punches claimed that mold in her apartment had caused other
problems for which she was entitled to damages. She alleged that Weidner raised the
temperature in her apartment to try to dry out mold, that her electric bill was therefore
higher than it should have been, and that personal items were damaged by mold. She
also claimed that she had suffered health problems from the mold. She alleged that the
rash on her head and neck was due to "an unusual illness known as Mucormycosis, a
flesh-eating fungal infection" and that she had contracted an upper respiratory tract
infection, both of which she attributed to mold exposure. Punches sought $2 million in
compensatory damages and $10 million in punitive damages from Weidner.
Weidner filed its answer a week later, denying all of Punches's allegations.
In September, after Punches filed initial interrogatories and requests for discovery,
Weidner responded by objecting to most of them.
Weidner deposed Punches in mid-December. Punches described the
condition of the apartment and blamed mold in her apartment for causing her health
problems. She admitted that no medical provider had diagnosed her with the "flesh-
eating fungal infection" alleged in her complaint.
Punches filed a second set of interrogatories and requests for production.
Weidner answered in early March 2018, again objecting to nearly all of them. Four days
after receiving Weidner's response, Punches filed a motion to compel discovery replies,
arguing that Weidner's objections were without merit and contained "[key] omissions."
C. Weidner's Protective Order And Partial Summary Judgment
Weidner opposed the motion to compel and filed a cross-motion for a
protective order in April. Weidner argued that Punches had not made a good faith effort
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3
to obtain discovery, as required by rule, because she had filed her motion only four days
after Weidner's response without attempting to resolve the situation.
In its motion for a protective order Weidner asked the court to limit
discovery until Punches could "prove that she can establish a prima facie case of her
claimed bodily injuries." Weidner argued that Punches had provided no evidence that
she suffered any bodily injuries or property damage as a result of Weidner's negligence
nor had she provided any evidence that she ever had mucormycosis. Weidner conceded
that it "would certainly make sense" to provide information such as the names of tenants
who had lived in Punches's apartment but only after Punches had shown some evidence
that she suffered any injury.
A week after filing its opposition to Punches's motion to compel, Weidner
filed a motion for partial summary judgment to dismiss Punches's personal injury claim, 4
arguing that Punches had failed to meet her burden of proof showing a connection
between her medical issues and exposure to mold. Weidner argued that because the
conditions with which she had been diagnosed "are common in the general population"
Punches needed to provide expert testimony to link them to mold. Weidner asserted that
Punches had "not even raised the possibility that [her] common conditions were caused
by mold, let alone . . . mold in her home."
Punches then filed her reply to the opposition to her motion to compel and
attached photographs allegedly showing her belongings "caked with mold" which she
3 See Alaska R. Civ. P. 37(a)(2)(B) (following failure to answer discovery
request, other party may move to compel answer but motion must include certification
that movant has conferred or attempted to confer in good faith with party failing to
provide discovery before seeking court action to require it).
4 Alaska Rule of Civil Procedure 56(c) authorizes summary judgment when
"there is no genuine issue as to any material fact and . . . the moving party is entitled to
judgment as a matter of law."
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said happened whenever she returned from a shift at work. She argued that the
photographs connected conditions in her apartment to her health issues and that she had
not yet been able to hire a medical expert because she had only recently obtained health
insurance. She also argued that the medical professionals she had seen "took a lax
approach diagnosing and treating" her condition, but that she expected the allergist she
had seen to conclude that mold in her apartment had caused her health issues.
After objecting that Weidner's opposition to her motion "reads like a
summaryjudgmentmotion,"Punchesarguedthat Weidner's refusal toprovidediscovery
was the cause of her delay in making a connection to conditions in her apartment. She
argued that she needed other tenants' names because mold problems typically affect a
large portion of a building and that she was entitled to depose Weidner's president to
find out if the employees she claimed failed to address mold problems were "doing their
job as trained and instructed by management." In mid-May the superior court denied
Punches's motionto compel andgrantedWeidner's motion for aprotectiveorder without
explanation.
Punchesfiled her oppositiontothepartial summary judgment motion in late
May and asked for an extension of time to file a "final" opposition to allow her to obtain
a diagnosis and treatment plan for her ailments. Punches claimed that she had
"overwhelming" evidence of mold exposure and that lay testimony about the presence
of mold was "sufficient to prove" the cause of a respiratory illness. She also stated that
she had recently obtained a primary care physician and was in the process of seeking a
diagnosis. Weidner did not oppose the requested continuance, butstated it would oppose
any future requests because Punches "has had two years to investigate the causation for
her claimed medical conditions."
Punches filed a second opposition to the partial summary judgment motion
in mid-June. She requested an additional three-week extension, contending that, in
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addition to the reasons she had provided in her last request for an extension, she was
having difficulty obtaining needed laboratory work due to her Medicaid insurance.
Punches filed an affidavit ten days later, stating that she had always been a healthy
person and her health deteriorated only after she moved into her apartment. She
described the apartment's foul smell and clothes with a moldy odor. A few days later
Punches filed a motion to continue the trial, based on the illness and unavailability of a
building air-quality expert and delays in scheduling depositions of Weidner employees,
which she stated had been caused by Weidner.
Weidner replied to Punches's second opposition to its summary judgment
motion, arguing that Punches had been dilatory in discovery and that she had not offered
adequate reasons to support her request for another extension. Weidner emphasized that
Punches had more than two years to investigate the cause of her ailments but had not
sought any treatment for over a year - from May 20, 2016 through September 13, 2017
- and that she had not provided any medical records to support her claims.
ThesuperiorcourtgrantedPunches'smotionforcontinuanceand scheduled
a trial setting hearing in late July. When the parties were unable to agree on a trial date
due to Punches's doctor appointments, the court continued the hearing until October 1.
In early August, Punches filed a third opposition to Weidner's summary
judgment motion and asked for another continuance. Punches claimed that she had seen
an ear, nose, and throat (ENT) specialist in Minnesota who had performed a nasal swab
test. Punches noted that after the test result was negative for fungal material she had
consulted with the doctor and he had suggested a further fungal mycotoxin test. She
therefore requested more time to obtain such a test result, because "if there is a positive
test sample . . . [Weidner's summary judgment motion] should be denied in full."
At the October trial setting conference, Punches requested a continuance
to enable her to obtain affidavits from an expert witness she intended to call for trial.
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5
The court granted Punches a one-week continuance under Alaska Civil Rule 56(f), until
October 8, to file a response to the summary judgment motion but emphasized that "it
[was] the last extension [it would] grant, given the passage of time."
Punches filed her fourth opposition to summary judgment on October 9.
In it she advised that she had obtained the result of the testing she had discussed with the
Minnesota ENT specialist and that it had shown a high level of "Ochratoxin A" in her
body. As a result, "lots of further diagnosis and treatment methods [we]re needed"
before Punches would be able to "state her case for physical injury with the precision
needed for trial." She requested that the court either deny summary judgment "without
prejudice to refiling after further diagnosis is done" or, in the alternative, grant her
another three-month continuance.
Weidner opposed, citing Punches's late filing of the opposition as well as
her failure to file the lab report. Weidner argued that even if the court considered
Punches's latest opposition to its motion to be new evidence, Punches had failed to show
any connection between the level of ochratoxin and her claims.
D. Superior Court Orders
The court denied Punches's request for a continuance and granted
Weidner's motion for partial summary judgment in late November 2018. After
recognizing that Rule 56(f) continuances are to be interpreted liberally "to allow a
6 the court noted
litigant a meaningful opportunity to obtain evidence to present a case,"
that "pure speculation cannot support a fishing expedition for evidence to oppose
5 See Alaska R. Civ. P. 56(f) (authorizing court to continue proceedings to
obtain affidavits in response to summary judgment motion).
6 Miller v . Treadwell, 245 P.3d 867, 876 (Alaska 2010).
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7
summary judgment." Concluding that Punches "would have this case on hold
indefinitely" until she could get an expert to support her theory that "(1) [she] ha[d]
injuries, (2) those injuries were caused by mold exposure, and (3) that mold in [her]
apartment caused those injuries," and considering the number of continuances Punches
had already been granted, the court concluded that another Rule 56(f) continuance was
unlikely to "result in evidence creating a genuine issue of material fact."
After denying Punches's requested continuance the court granted partial
summary judgment for Weidner on the personal injury claim, noting that even by
"[d]rawing all reasonable inferences in favor of [Punches] there is no evidence in the
record that her injuries were caused by mold exposure at all, let alone mold exposure
from her apartment." The court explained that there was "no reasonably apparent causal
relationship between smelling a foul odor and respiratory illness or infection" and that
it would not "speculate as to the various causes of respiratory infection as the pathology
of that affliction is within the expertise of the medical field."
The court convened a scheduling conference on January 15, 2019 and set
trial for February 4. The next day Punches filed a fifth opposition to the granted motion
for partial summary judgment, "perfecting the record for appeal." She stated that test
results from an appointment with another specialist a few days earlier had revealed an
unusually "high . . . presence of gasoline nodules in her physiology." She included a
second affidavit, reaffirming her belief that mold in her apartment had caused her health
issues. She detailed her problems obtaining health insurance, which had prevented her
from "vigorously" pursuing diagnosis and treatment. Punches also filed her designation
of expert, naming the specialist and providing his contact information.
7 Id.
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Weidner filed a motion in limine a few days later asking the court to
preclude any evidence or testimony about a building fire, a gasoline spill or smell, or
"harmfulmoldinhalants"renderingPunches's apartment uninhabitable. Weidner argued
that Punches had not offered any evidence that there were harmful mold inhalants in her
apartment; that a fire in the building had affected her apartment; or that she had ever
complained of gasoline smells in the apartment.
Punches opposed the motion in limine, arguing that evidence of mold in her
apartment was plain: a "pungent, sour aroma of mold" that two witnesses could confirm.
Punches argued that the fire and gasoline were relevant because traces were harmful to
human health and could help explain the smell in the apartment. And she argued that
there was no unfair prejudice by introducing "the history, appearance and physical
condition" of the apartment. The next day Punches filed her sixth opposition to the
granted partial summary judgment motion, describing new dietary restrictions
recommended by the specialist she had seen most recently.
The court granted Weidner's motion in limine on January 29.
E. Trial And Appeal
Before the beginning of the five-day jury trial on February 4, the court
clarified its rationalefor denying Punches'smotion foracontinuanceand granting partial
summary judgment. The court first noted that Punches had not offered a "clear timeline"
regarding when she expected to be able to provide expert testimony in support of her
claim that any of her injuries were the result of mold exposure in her apartment or "a
result of mold exposure generally." The court explained that the additional information
Punches had provided did not create a genuine issue of material fact regarding her
claimed injuries, and that as a result, evidence relating to her claimed injuries was being
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excluded because any probative value it might have was outweighed by its possible
prejudicial effect. 8
Punches proceeded to trial on the negligence and breach of contract claims.
The jury returned verdicts in favor of Weidner, determining that Weidner was not
negligent and had not breached its lease with Punches. The court entered judgment for
Weidner and awarded attorney's fees and costs to Weidner as the prevailing party.
Punches appeals, arguing that the court improperly granted Weidner's
motion for partial summary judgment. She also argues that it was an abuse of discretion
to deny her motion to compel discovery; to grant Weidner's motion in limine; to prevent
her from presenting her test results or evidence of physical symptoms; and to deny her
Rule 56(f) request for continuance.
III. STANDARD OF REVIEW
Wereviewthesuperiorcourt's rulings ondiscovery9
and motionsto compel
10 for abuse of discretion. "We will find an abuse of discretion when the
discovery
decision on review is manifestly unreasonable."11
8 See Alaska R. Evid. 403 ("[E]vidence may be excluded if its probative
value is outweighed by danger of unfair prejudice, confusion of issues, or misleading
jury, or by consideration of undue delay, waste of time, or needless presentation of
cumulative evidence.").
9 Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008).
10 Douglas Indian Ass'n v. Central Council of Tlingit &Haida Indian Tribes
of Alaska, 403 P.3d 1172, 1176 (Alaska 2017) (quoting Coulson v. Marsh &McLennan,
Inc., 973 P.2d 1142, 1146 (Alaska 1999)).
11 Sykes v. Lawless, 474 P.3d 636, 646 (Alaska 2020) (quoting Erica G. v.
Taylor Taxi, Inc., 357 P.3d 783, 786-87 (Alaska 2015)).
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We review a denial of a motion to continue, including one premised on
12
Rule 56(f),
for "abuse of discretion, 'determining whether a party has been deprived
13 In doing
of a substantial right or seriously prejudiced by the superior court's ruling.' "
so, we "consider 'the particular facts and circumstances of each individual case to
determine whether the denial was so unreasonable or so prejudicial as to amount to an
abuse of discretion.' "14
"Wereviewagrant ofsummaryjudgmentdenovo."15 "Summary judgment
is proper if there is no genuine factual dispute and the moving party is entitled to
judgment as a matter of law." 16 "When ruling on a summary judgment motion, we view
the facts in the light most favorable to the non-moving party."17
We review a trial court's Alaska Evidence Rule 403 ruling for abuse of
discretion by "balancing the danger of unfair prejudice against the probative value of the
evidence to determine whether the potential danger predominated so greatly as to leave
us firmly convinced that admitting the challenged evidence amounted to a clear abuse
12 Mitchell v. Teck Cominco Alaska Inc ., 193 P.3d 751, 757 (Alaska 2008)
(citing Hymes v. DeRamus , 119 P.3d 963, 965 (Alaska 2005)).
13 Clementine F. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 375 P.3d 39, 43 (Alaska 2016) (quoting Hannah B. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 289 P.3d 924, 930 (Alaska 2012)).
14 Id. (quoting Rowan B. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 361 P.3d 910, 912-13 (Alaska 2015)).
15 Mitchell, 193 P.3d at 757 (citing Miller v. Safeway, Inc., 170 P.3d 655, 658
(Alaska 2007)).
16 Id.
17 Dapo v. State, 454 P.3d 171, 175 (Alaska 2019) (citing Cabana v. Kenai
Peninsula Borough, 50 P.3d 798, 801 (Alaska 2002)).
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18
of discretion." "We reverse only if 'the error affected the substantial rights of a
party.' " 19
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion By Denying
Punches's Motion To Compel Discovery And Granting Weidner's
Protective Order.
Punches argues that the superior court erred when it denied her motion to
require Weidner's principal, Dean Weidner, to be deposed and to compel discovery of
other tenants' contact information. We conclude that the superior court did not abuse its
discretion when it denied Punches's motion to compel and granted Weidner's protective
order.
1. The burden of deposing Dean Weidner would have outweighed
the benefit to Punches.
Punches argues that the superior court should have granted her motion to
compel the deposition of Dean Weidner. Punches argues that the superior court had "no
20
authority at all under [Alaska Civil Rule 26(b)(2)(A)] to forbid" his deposition.
Punches asserts that his deposition would have revealed "lots of information about the
apartment condition, the repairs post-lease, and the company history, policies and
practices in connection with mold and fire cleanup."
18 Ray v. Draeger , 353 P.3d 806, 810 (Alaska 2015) (quoting Conley v.
Alaska Commc'ns Sys. , 323 P.3d 1131, 1136 n.11 (Alaska 2014)).
19 Id. (quoting Kingery v. Barrett, 249 P.3d 275, 281 (Alaska 2011)).
20 Alaska R. Civ. P. 26(b)(2)(A) (establishing when and to what extent court
may limit discovery, including depositions).
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In Gibson v. GEICO we affirmed the superior court's protective order
21
prohibiting Gibson from deposing two GEICO insurance claims adjustors. GEICO
argued that the adjustors' evaluation of the amount of damages that Gibson had suffered
from the accident did not mean they had any knowledge about any injuries Gibson
22 Gibson conceded that the only issue of fact for trial was
claimed to have suffered in it.
the extent of damages she had suffered.23 The superior court granted the motion,
concluding that the adjustors' knowledge was not relevant to the only issue of fact.24 We
upheld the superior court's order, noting that even if the adjusters' depositions might
have led to relevant evidence, that evidence "was obtainable from other sources and
. . . was likely to be tangential to the issue of damages."25 We held that because the
burden of requiring the adjustors' depositions "outweighed its likely benefit," the
superior court had not abused its discretion when it granted the protective order.26
Dean Weidner, the "sole owner and manager" of the parent company that
owned and managed the apartment complex, is further removed from the facts at issue
here than were the claims adjustors in Gibson. Because Punches was able to depose the
individuals actually responsible for the maintenance of her apartment, the superior court
could reasonably conclude that the chance the deposition would reveal relevant evidence
was outweighed by the burden imposed on Weidner by a deposition. The superior court
21 153 P.3d 312, 321 (Alaska 2007).
22 Id. at 316.
23 Id.
24 Id. at 317.
25 Id.
26 Id.
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did not abuse its discretion by denying Punches's motion to compel the deposition of
Dean Weidner. 27
2. Punches failed to make a prima facie case relating other
tenants' information to her claims.
Punches argues that the superior court erred when it denied her motion to
compel the production of information about other tenants of her building. She contends
that other tenants would have valuable information relating to her claims because mold
and fire damage affect an entire building. She also argues that other apartments also
would have needed repairs stemming from the same conditions she claims existed in her
apartment, including excessive dampness, a fire in the building, and Weidner's
28
negligence in making repairs.
29
Punchesarguesthat AlaskaCivilRule26(b)(1) and AlaskaEvidenceRule
30
401 set out a "liberal standard of what information is discoverable," and that because
27 Weidner also argues on appeal that Punches had "an illegitimate reason"
for seeking to depose Dean Weidner - to harass the company. But Weidner did not
raise this argument to the superior court. It is therefore waived and we will not consider
it. Hoffman Constr. Co. of Alaska v. U.S. Fabrication &Erection, Inc. , 32 P.3d 346, 355
(Alaska 2001) ("As a general rule, we will not consider arguments for the first time on
appeal.").
28 Punches does not respond to Weidner's argument that she failed to act in
good faith when she filed the motion to compel.
29 Alaska R. Civ. P. 26(b)(1) (parties may obtain discovery regarding any
nonprivileged matter relevant to subject matter of litigation and information need not be
admissible as long as it appears reasonably calculated to lead to admissible evidence).
30 Alaska R. Evid. 401 ("Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the determination
of the action more or less probable than it would be without the evidence.").
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information about other tenants is not privileged and does not "present [an] element of
unfair bias" she should have been allowed to obtain it.
31 because she did not
After arguing that Punches did not act in good faith
attempt to confer with it before filing a motion to compel or provide it sufficient time to
respond, Weidner points out that it provided Punches contact information of tenants who
had lived in her apartment. Weidner argues that her request for other tenants'
information was not relevant to her claims, which were specific to her apartment.
Weidner argues that even if another tenant could testify that Weidner had been negligent
in repairing a different apartment, "one act of negligence is not evidence of another."
Weidner also argues that an "underlying issue of non-party privacy" required the
superior court to balance Punches's right to discovery against the other tenants'
expectation that their personal information would not be disclosed.32
We review the superior court's denial of Punches's motion to compel for
33 We turn first to Weidner's claim that the court was required to
abuse of discretion.
deny Punches's motion to compel other tenants' information, which overlooks Ayuluk
v. Red Oaks Assisted Living, Inc.34 There we held that the court had abused its discretion
when it excluded evidence that was admissible to demonstrate an assisted living home's
knowledge that an employee had previously behaved in ways that endangered
31 See Alaska R. Civ. P. 37(a)(2)(B) (requiring movant to have made "good
faith effort to obtain discovery request information without court intervention").
32 See State v. Doe, 378 P.3d 704, 705-07 (Alaska 2016) (requiring court to
balance expectation of privacy against other compelling interests).
33 Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008).
34 201 P.3d 1183 (Alaska 2009).
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35
residents. Punches could have made similar use of other tenants' contact information
to find evidence of other tenants' experience with mold and fire damage in the same
building.
Weidner's argument about other tenants' privacy rights supports the
superior court. In Doe we cautioned that despite our liberal discovery policy courts must
still "ensure that intrusions into [non-party] privacy are supported by sufficient
36 We required the court to first consider whether the party seeking
justifications."
protection had a legitimate expectation that the information would not be disclosed and
whether disclosure was nonetheless required by a compelling interest.37 If so, we
required the court to ensure that the necessary disclosure would occur in the manner that
intruded least into that expectation of privacy.38
The parties do not dispute that other tenants have an expectation of privacy
in their contact information. And Punches has some right to discover evidence that is
reasonably calculated to lead to admissible evidence supporting her claims against
39 Previous tenants may possess evidence relating to Punches's claim that
Weidner.
Weidner was negligent in repairing the problems she raises in her complaint. Providing
Punches their contact information would enable her to discover whether they do.
35 Id. at 1193-94.
36 378 P.3d at 706.
37 Id.
38 Id.
39 See Alaska R. Civ. P 26(b)(1) (parties may obtain discovery regarding any
nonprivileged matter relevant to subject matter of litigation and information need not be
admissible as long as it appears reasonably calculated to lead to admissible evidence).
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But Punches had not been able to link the alleged mold in her apartment to
her injury in the almost two years the case had been pending. Even if she had been able
to contact other tenants who had similar issues with their apartments, this information
would not have helped her demonstrate that the conditions in the building caused her
injury. Because the information she might have received from the other tenants would
not have meaningfully advanced her case, the court could reasonably conclude that she
did not have a compelling interest justifying invading the privacy of other tenants in her
40 The court did not abuse its discretion when it denied Punches's motion to
building.
compel discovery of other tenants' information.
The court likewise did not abuse its discretion when it granted Weidner's
cross-motion for a protective order requiring Punches to make a prima facie case that she
had suffered personal injury before allowing her to conduct additional discovery. "The
superior court has broad discretion to determine the scope and extent of discovery and
41 Punches had almost two years to obtain discovery and
to craft protective orders."
collect evidence supporting her allegations. The court did not abuse its discretion by
precluding further discovery until Punches was able to establish a prima facie case of
personal injury. We therefore affirm the superior court's order denying Punches's
motion to compel and granting Weidner's cross-motion for a protective order.
B. The Superior Court Did Not Abuse Its Discretion By Denying
Punches's Request For A Rule 56(f) Continuance.
Punches argues that the superior court should have granted her fourth
request for a Rule 56(f) continuance, giving her an additional three months to obtain
affidavits in opposition to Weidner's motion for partial summary judgment. First, she
40 Doe, 378 P.3d at 706.
41 DeNardo v. Bax, 147 P.3d 672, 676 (Alaska 2006).
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argues that a party "need only 'provide a reason why [a continuance] is needed and not
be dilatory in discovery' " to be granted more time, citing Mitchell v. Teck Cominco
42 In Mitchell we described the necessary steps to obtain a continuance under
Alaska Inc.
Rule 56(f):
[A] party (1) must unambiguously request relief on Rule
56(f) grounds, although Rule 56(f) itself need not be
specifically mentioned; (2) must not have been dilatory
duringdiscovery; and (3) mustprovide adequate reasons why
additional time is needed.[43]
Punches argues that she met these requirements. Punches asserts that she
had received laboratory test results on the day her opposition was due, and that the
results indicated that a "mold metabolite [was] found in [her] system." Punches argues
that the superior court failed to take "this development" into account when it denied her
requested continuance.
Punches argues that she was not dilatory and attributes her delay in making
a prima facie case to the fact that "[f]or a period of six-months prior to filing the suit she
was without medical coverage of any kind, making non-emergency medical care entirely
unavailable to her." She asserts that during the "16 months this suit was pending," she
consulted with a number of medical providers, including her primary care doctor, an
infectious disease specialist, an allergist, and an ENT specialist. And she points out that
she arranged a consultation with a specialist while the summary judgment motion was
pending.
In response, Weidner argues that Punches had nearly 18 months and 3
continuances from the time she filed her suit until the partial summary judgment was
42 193 P.3d 751 (Alaska 2008).
43 Id. at 758 (citing Hymes v. DeRamus, 119 P.3d 963, 965 (Alaska 2005)).
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granted to support her case with admissible evidence but failed to do so. Weidner argues
that the lab reports offered were not sufficient "to establish a genuine issue of material
fact" because they were "highly ambiguous . . . [and] did nothing to prove causation or
even diagnosis."
In denying Punches's request, the superior court acknowledged that during
the nearly 18 months since filing her complaint, Punches had met with six medical
providers and had laboratory testing completed. Yet the superior court noted Punches
was "no closer in her attempt to find a diagnosis of her injuries that could subject
[Weidner] to liability." The court found that "Punches does not have a diagnosis of any
of her ailments being caused by mold exposure, let alone caused by mold in the
apartment leased to her by [Weidner]." The court also pointed out that Punches had filed
lab reports without any supporting statement from a medical professional, leaving the
court without any basis to assess the lab reports.
As the superior court recognized, Punches's case differs from Mitchell .
44 He had
Mitchell's opposition had explicitly requested more time and cited Rule 56(f).
also not been dilatory with discovery; the case was less than six months old when the
motion to dismiss was converted to a motion for summary judgment, and discovery was
not set to close until a month after the court granted the motion.45 Finally, Mitchell
provided adequate reasons why he needed additional time.46 Mitchell had already taken
nine depositions and provided the court additional evidence supporting his claim, as well
44 Id. at 758.
45 Id. at 758-59.
46 Id. at 759.
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47
-as descriptions of more information he sought to discover. As a result, we concluded
that Mitchell had satisfied the three requirements for obtaining a Rule 56(f)
continuance.48
In contrast to Mitchell, Weidner filed its motion for partial summary
judgment 11 months after Punches filed her complaint. Another seven months passed
before the superior court granted it, giving Punches some 18 months to make a prima
facie showing that a genuine issue of material fact existed with respect to her personal
injury claim.
And unlike Mitchell, who had conducted numerous depositions and
obtained evidence supporting his claim, at the close of discovery Punches still had not
obtained an expert "to testify that (1) [she] had injuries, (2) those injuries were caused
by mold exposure, and (3) . . . mold in [her] apartment caused those injuries."
We have explained that the purpose of Rule 56(f) is to "safeguard against
49 But we have repeatedly held that Rule 56(f)
premature grants of summary judgment."
50 Coming 18 months after
continuances should not be granted to support "speculation."
Punches filed her complaint, following three previously granted continuances, and in
light of her failure to obtain any evidence during that time to support her personal injury
47 Id.
48 Id. at 758.
49 Gamble v. Northstore P'ship , 907 P.2d 477, 485 (Alaska 1995).
50 See Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1260 (Alaska 2001)
(holding that "[m]ere speculation that [the University of Alaska] withheld additional
responsive documents does not warrant Rule 56(f) relief"); see also Miller v. Treadwell,
245 P.3d 867, 876 (Alaska 2010) (holding that "pure speculation cannot support a
fishing expedition for evidence to oppose summary judgment").
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claim, the superior court did not abuse its discretion when it denied Punches's fourth
request for a Rule 56(f) continuance.
C. The Superior Court Did Not Err By Granting Partial Summary
Judgment.
A party moving for summary judgment "is entitled to judgment as a matter
51
of law" when "there is no genuine issue as to any material fact."
In Christensen v.
Alaska Sales & Service, Inc. we clarified what is meant by "any material fact" and thus
52
when summary judgment is appropriate. We held that "there are two important aspects
to this requirement": (1) the "material fact is one upon which resolution of an issue
turns" and (2) "the existence of a dispute over a material fact" is determined using a
53
"reasonableness standard." Weexplained that "theevidenceproposed for trial must not
be based entirely on 'unsupported assumptions and speculation' and must not be 'too
54
incredible to be believed by reasonable minds.' "
We further clarified that "[a]fter the court makes reasonable inferences in
favor of the non-moving party, summary judgment is appropriate only when no
reasonable person could discern a genuine factual dispute on a material issue."55 This
is a "lenient standard"56 that "preserv[es] the right to have factual questions resolved by
51 Alaska R. Civ. P. 56(c).
52
335 P.3d 514, 517-21 (Alaska 2014).
53
Id. at 519.
54 Id. at 520 (first quoting Peterson v. State, Dep't of Nat. Res. , 236 P.3d 355,
367 (Alaska 2010); then quoting Wilson v. Pollet, 416 P.2d 381, 384 (Alaska 1966)).
55 Id . (first citing Lockwood v. GeicoGen.Ins.Co., 323 P.3d 691, 696 (Alaska
2014); then citing Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990)).
56 Id. (quoting Shaffer v. Bellows, 260 P.3d 1064, 1069 (Alaska 2011)).
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57
a trier of fact only after following the procedures of a trial." When we apply this
lenient standard "we view the facts in the light most favorable to the non-moving
party."58
Punches argues that the superior court erred when it granted partial
summary judgment on her personal injury claim. She first contends that it was
inappropriate because she should have been granted another continuance to obtain
affidavits to support her opposition. But we have already determined that the superior
court properly denied her request for an additional continuance.
Punches's second argument is that she demonstrated a "plain connection"
between exposure to mold and a "compensable injury, even without presenting
supporting medical testimony on causation." But Punches overlooks the law with regard
to proving the causation of health problems. Although the standard to withstand a
motion for summary judgment is lenient, our precedent - as Weidner correctly points
out - requires expert testimony "when the nature or character of a person's injuries
require[s] the special skill of an expert to help present the evidence to the trier of fact in
a comprehensible format."59 In Choi we determined that expert testimony was not
required to establish injuries that are "of a common nature and arise from a readily
identifiable cause."60 We considered injuries such as back, neck, and armpain stemming
57 Id. at 521.
58 Dapo v. State, 454 P.3d 171, 175 (Alaska 2019) (citing Cabana v. Kenai
Peninsula Borough , 50 P.3d 798, 801 (Alaska 2002)).
59 Choi v. Anvil, 32 P.3d 1, 3 (Alaska 2001).
60 Id. at 4.
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61
from an auto accident and concluded that these injuries arose from "a situation easily
understood . . . using everyday experience." 62
Punches's injury, however, by her own admission requires a diagnosis that
"is a very difficult one to reach." In fact, Punches cites a study where it took medical
professionals nearly 20 years to diagnose a mold-related illness. Punches's alleged
injury cannot be easily understood "using everyday experience."63 Even assuming there
had been mold in the apartment, Punches failed to obtain expert testimony to establish
a connection between mold exposure and her alleged injuries including mucormycosis,
a respiratory infection, bouts of skin abscesses, and chronic fatigue.
Without some proof beyond her personal belief that her ailments were
caused by conditions in her apartment, Punches has not shown that a genuine issue of
fact exists that precludes summary judgment. After reviewing the facts in the light most
favorableto Punches, we agreewith the superior court that Punches failed to demonstrate
a genuine issue of material fact whether she suffered injury based on her exposure to
mold in her apartment; we affirm the superior court's decision to grant partial summary
judgment.
D. The Superior Court Did Not Abuse Its Discretion By Granting
Weidner's Motion In Limine.
After the court granted its motion for partial summary judgment, Weidner
filed a motion in limine to preclude Punches from presenting evidence about "alleged
effects from a building fire, gasoline 'spill,' and/or 'harmful mold inhalants.' " Weidner
stressed that Punches "has no evidence" to support her theory that she suffered injury
61 Id. at 2-4.
62 Id. at 4.
63 Id.
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from such events or materials. Punches argued that the motion should be denied,
asserting that mold was "[s]omething [m]ost [p]eople [a]re [a]ble to [i]dentify" and that
"[t]here could be nothing unfairly prejudicial . . . in bringing truthful facts out at the
trial."
The superior court granted Weidner's motion in limine without comment.
Punches argues that the court abused its discretion and characterizes the order as one
limiting "the scope of testimony about illness by Punches and the occurrence of the
building fire." She claims that "[t]he error made by the superior court . . . could not be
more manifest" and argues that its impact was "far beyond what [was] sought by any
party." Punches concedes, however, that the order was consistent with the court's grant
of partial summary judgment dismissing her personal injury claim.
Weidnerargues that Punchesneverpresentedany evidencebeyond her own
beliefs about her health issues and their causes and that if the superior court erred by
granting the motion in limine, any error was harmless.
Weidner filed, and the superior court granted, its motion in limine a few
days before trial. At a conference before the start of trial on February 4, the court
explained the basis for its order. The court advised the parties that it had "specifically
. . . look[ed] at Evidence Rule 403," which authorizes the exclusion of evidence if its
64 The court then stated its "concern," noting
prejudicial impact outweighs its relevance.
that "because [it had] granted summary judgment as to those physical injury
claims, . . . should testimony regarding those physical injuries be brought before the jury,
64 Alaska R. Evid. 403 ("Although relevant, evidence may be excluded if its
probative value is outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.").
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then [the parties would] end up having mini trials regarding Ms. Punches's physical
injuries and the limitation of the presentation of evidence to the jury."
The superior court correctly recognized that decisions about the admission
and exclusion of evidence are governed by Evidence Rule 403, which requires the court
to balance the probative value of proffered evidence against its potential prejudice. That
is exactly what the superior court did. Having granted summary judgment removing
Punches's personal injury claim from the jury's consideration, the court also kept
evidence relating solely to that claim from the jury. A five-day trial proceeded on
Punches's remaining claims, and Punches does not separately raise any challenge to
restrictions placed on her ability to introduce evidence relating to those claims.
Given its broad discretion on evidentiary issues, and the grant of summary
judgment on Punches's personal injury claim, the superior court did not abuse its
discretion when it granted Weidner's motion in limine.
V. CONCLUSION
We AFFIRM the superior court's decision in all respects.
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