| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marcie A. Beistline and William C. Beistline v. Bruce M. Footit, and Banner Health Inc., D/B/A Fairbanks Memorial Hospital (4/23/2021) sp-7518
Notice: This opinion is subject to correction before publication in the P ACIFIC 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
MARCIE A. BEISTLINE and )
WILLIAM C. BEISTLINE, ) Supreme Court No. S-17556
)
Appellants, ) Superior Court No. 4FA-18-01401 CI
)
v.
) O P I N I O N
)
BRUCE M. FOOTIT and BANNER ) No. 7518 - April 23, 2021
HEALTH INC., d/b/a FAIRBANKS )
MEMORIAL HOSPITAL, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael A. MacDonald,
Judge.
Appearances: Mike A. Stepovich, Stepovich Law Office,
Fairbanks, for Appellants. John J. Tiemessen, Clapp
Peterson Tiemessen Thorsness LLC, Fairbanks, for
Appellees.
Before: Bolger, Chief Justice, Maassen, Carney, and
Borghesan, Justices. [Winfree, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A husband and wife sued medical care providers after the wife suffered a
seizure, allegedly due to a doctor's decision to abruptly discontinue her medication. The
----------------------- Page 2-----------------------
superior court granted summary judgment to the medical care providers, ruling that the
couple's only expert witness, a pharmacist, was unqualified to provide testimony about
the matter at issue because he was not a doctor of internal medicine and was not board-
certified in the doctor's field or specialty. The couple appeals.
We conclude that the pharmacist's testimony was not sufficient to create
a genuine issue of material fact about the relevant standard of care. We therefore affirm
the grant of summary judgment to the health care providers.
II. FACTS AND PROCEEDINGS
A. Facts
On February 6, 2016, William Beistline brought his wife Marcie to the
Fairbanks Memorial Hospital emergency room with 'generalized weakness, ataxia and
confusion." Marcie was admitted to the hospital by Dr. Bruce M. Footit, a hospitalist
1 William provided his wife's
and internist who is board-certified in internal medicine.
medical history, as she was 'too delirious" to do it herself.
Dr. Footit's written record includes the following information. In the days
leading up to Marcie's admission, she had 'been acting strangely, experiencing
1 The complaint alleges that Dr. Footit is an 'internist," which his answer
admits. The only other direct evidence in the record of Dr. Footit's title and
qualifications appears to be an unauthenticated copy of his curriculum vitae (CV),
submitted by the defendants with their reply in support of summary judgment. The CV
states that Dr. Footit is certified by the American Board of Internal Medicine and
identifies his position with Fairbanks Memorial Hospital in the relevant time frame as
'Hospitalist/Critical Care Provider." The Beistlines' expert, like the defendants',
assumed that Dr. Footit was 'a board certified internal medicine physician" when
opining about the applicable standard of care. The Beistlines' argument makes the same
assumption; they do not directly challenge the superior court's factual premise that
Dr. Footit is 'a board-certified internist practicing internal medicine." We therefore
assume that the doctor's training and qualifications are undisputed for purposes of the
issue on appeal.
-2- 7518
----------------------- Page 3-----------------------
increasing confusion[,] lethargy," and 'unstead[iness] on her feet," and was dealing with
nausea, vomiting, and diarrhea. She had previously received some 'very unorthodox"
and 'fairly nontraditional" treatments for 'common medical problems" from 'medical
professionals" outside of Alaska. They had been treating her for Lyme disease 'at [a]
significant cost" and had also surgically implanted a port in her chest so she could self-
administer 'vitamin bags," but these Outside providers did not give her any 'followup
or direct care for her port." Marcie saw these providers annually and received 'sporadic
treatment" consisting of vitamin IV bags and 'allopathic treatments for her insomnia,
which [she] takes per her own regimen, which include: Ambien, benzodiazepines,
muscle relaxants and other herbal remedies."
One of Marcie's providers, 'Dr. Fry," had diagnosed her with a 'blood
parasite," which was now 'crawling out of her skin," causing itchiness and skin lesions.
Williamexplained that Dr. Fry had prescribed an antibiotic, but according to Dr. Footit's
notes it was actually some type of 'herbal remedy that only [Dr. Fry was] able to
prescribe at [a] significant cost." Marcie's medical history also appeared to include
depression, 'potential psychiatric disease," and chronic insomnia. No documentation
was available to Dr. Footit about what was in the vitamin bags or the dosage or
frequency of Marcie's medications; according to William, she was 'somewhat secretive
[about] her therapies." She had 'a box full of different medications," but Dr. Footit
could not determine which ones she was taking.
Dr. Footit believed that Marcie had 'multiple chronic issues" including
2 and delirium - possibly related to the hyponatremia - and
acute hyponatremia
2 'Hyponatremia 'is the term used to describe abnormally low amounts of
sodium in the blood.' " Salt and Sodium, HARVARD SCHOOL OF PUBLIC HEALTH,
https://www.hsph.harvard.edu/nutritionsource/salt-and-sodium/ (last visited Mar. 3,
2021).
-3- 7518
----------------------- Page 4-----------------------
excessive medication use. Because she had no local physician in Alaska and had sought
what Dr. Footit believed to be unorthodox and 'frankly potentially dangerous medical
therapies" without any significant oversight, Dr. Footit found it difficult to diagnose the
causes of her problems. But he believed her to be 'at significant risk for unintentionally
overdosing on her [regimen] of [central nervous system]-active meds." He ordered a
hold on her 'chronic outpatient medications" and herbal remedies. He planned to give
her 'some IV fluid resuscitation" and 'isotonic saline" to correct her sodiumlevels while
monitoring her progress over a 24-hour period. He also planned a toxicology screen; an
initial opiate screen was positive, which he found concerning because she did not appear
to have any prescriptions for opiates.
The next day, February 7, a surgeon removed Marcie's implanted port,
having determined that her change in mental status was 'most likely secondary to early
3 and was
sepsis/bacteremia." On February 9 Marcie had a tonic-clonic seizure
transferred to the Intensive Care Unit. Three days later she was discharged for outpatient
treatment.
B. Proceedings
In early 2018 the Beistlines filed a medical malpractice suit against
Dr. Footit and Banner Health, d/b/a Fairbanks Memorial Hospital. They alleged that
Marcie's tonic-clonic seizure was the result of Dr. Footit's decision to cut off all her
3 A tonic-clonic seizure is generally characterized by a sudden stiffening of
PILEPSY
the muscles, loss of consciousness, and convulsions. Tonic-clonic Seizures , E
FOUNDATION,https://www.epilepsy.com/learn/types-seizures/tonic-clonic-seizures(last
visited Mar. 17, 2021).
-4- 7518
----------------------- Page 5-----------------------
4
medications, including benzodiazepines, and that this decision breached the applicable
standard of care.
Dr. Footit and the hospital moved for summary judgment in January 2019,
almost a year after the complaint was filed. They supported their motion with the
affidavit of Dr. Thomas McIlraith, a licensed and board-certified internal medicine
physician. Dr. McIlraith noted that Dr. Footit lacked any records of Marcie's
'unorthodox treatments, drugs, drug dosages, [and] drug frequency [or of] the rationale
and diagnoses for the unusual and unconventional unorthodox treatments." He attested
that because Marcie was delirious, '[t]he standard of care require[d] that potential causes
of the pathology be treated and eliminated." He explained that Dr. Footit did this by first
'correcting the hyponatremia and treating the sepsis from the implanted port." He
further attested that 'because Marcie was on medications that could cause delirium, in
prescribed dosages exceeding recommended amounts, and because Dr. Footit could not
ascertain how Marcie was taking her medications," Dr. Footit acted competently by
withdrawing them; in fact, Dr. McIlraith asserted, '[i]t would be irresponsible NOT to
5 Finally, he concluded that 'Dr. Footit met
eliminate a potential drug cause of delirium."
the standard of care and acted as a reasonable and prudent internist" and that the
hospital's 'staff met the appropriate and applicable standard of care."
4 Benzodiazepines are a class of drug used as sedatives and to treat insomnia,
anxiety, muscle spasms, and drug withdrawal symptoms. Benzodiazepines (and the
Alternatives) , Harvard Health Publishing, https://www.health.harvard.edu/mind-and-
mood/benzodiazepines_and_the_alternatives (last updated Sept. 27, 2020).
5 Dr. McIlraith disputed the complaint's assertion that Dr. Footit had
discontinued benzodiazapenes. This factual dispute was not material to the summary
judgment ruling on appeal.
-5- 7518
----------------------- Page 6-----------------------
The Beistlines were granted an unopposed 10-day extension of time to
respond to the summary judgment motion. They then moved pursuant to Alaska Civil
6 The 45 days passed,
Rule 56(f) for a 45-day continuance to obtain supporting affidavits.
but the court heard argument on the Rule 56(f) motion in April, when it addressed
several other discovery issues as well. The court observed that it had 'been three years
since the incident, a year since the start of the case, and the suggestion [from the
defendants] is that the plaintiffs still don't even have an expert and . . . also, that the
plaintiffs have been dilatory in discovery." The Beistlines' counsel conceded that they
did not yet have an expert and did not know 'who [would] actually be [their] testifying
expert at trial," but she argued that they were not required to disclose their experts before
the pretrial deadline for such disclosures - still eight months away - notwithstanding
the pending summary judgment motion. At the close of the hearing the court found that
the plaintiffs had been seeking continuances as 'a strategic matter" and that they had
'indeed been dilatory during discovery," but it allowed them two more weeks to acquire
an expert 'based solely on the interest in resolving this case on the merits."
The Beistlines then filed an opposition to the summary judgment motion
that relied solely on the affidavit of Dr. Gregory Holmquist, a pharmacist and educator.
Dr. Holmquist, unlike Dr. McIlraith, assumed that Dr. Footit had discontinued Marcie's
use of benzodiazepine drugs and Ambien, which Dr. Holmquist characterized as a
'Z-drug." Dr. Holmquist attested that there were strict protocols governing how patients
were removed from these drugs, and that a failure to follow the protocols could
6 Rule 56(f) provides: 'Should it appear from the affidavits of a party
opposing the[summaryjudgment] motion that the party cannot for reasons stated present
by affidavit facts essential to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit affidavits to be obtained
or depositions to be taken or discovery to be had or may make such other order as is
just."
-6- 7518
----------------------- Page 7-----------------------
contribute to seizure. He opined that 'following proper protocols for weaning and
discontinuing medication is the standard of care" and that these protocols 'should be
general knowledge to a board certified internal medicine physician, but, if not, then [in
Marcie's case] there should have been a consult between the internist and the hospital's
pharmaceutical department."
The court granted summary judgment to Dr. Footit and the hospital. The
court cited AS 09.20.185(a), which lays out the required expert witness qualifications in
professional negligence cases. Among the statute's requirements is that the witness be
'certified by a board recognized by the state as having acknowledged expertise and
7 The court concluded:
training directly related to the particular field or matter at issue."
'A doctor of pharmacy's expert testimony is insufficient to rebut the testimony of a
board-certified internist about the standard of care required of a board-certified internist
practicing internal medicine."
The Beistlines moved for reconsideration, arguing again that they had no
obligation to produce qualified experts before the pretrial deadline for the exchange of
expert reports. They also asserted, however, that they now had an expert witness who
was qualified under AS 09.20.185(a), and they asked the court to allow them to submit
a supplemental opposition to the summary judgment motion. The court denied
reconsideration andentered final judgment for Dr. Footit and thehospital. TheBeistlines
appeal.
III. STANDARD OF REVIEW
'We review a grant of summary judgment de novo, affirming if the record
presents no genuine issue of material fact and if the movant is entitled to judgment as a
7 AS 09.20.185(a)(3).
-7- 7518
----------------------- Page 8-----------------------
8
matter of law." 'We must determine whether any genuine issue of material fact exists,
and in so doing all factual inferences must be drawn in favor of - and the facts must be
viewed in the light most favorable to - the party against whom summary judgment was
9 'We interpret statutes 'according to reason, practicality, and common sense,
granted."
taking into account the plain meaning and purpose of the law as well as the intent of the
drafters.' "10
IV. DISCUSSION
A. The Sufficiency Of Expert Testimony In A Medical Malpractice Case
Depends On Both AS 09.20.185 (Expert Witness Qualifications) And
AS 09.55.540 (Burden Of Proof).
The legislature, by statute, has imposed particular requirements for
establishing the standard of care in professional negligence cases, including those
involving claims of medical malpractice. In any 'malpractice action based on the
negligence or wilful misconduct of a health care provider," the plaintiff is required to
prove 'by a preponderance of the evidence" both the standard of care and the
defendant's breach of that standard, i.e., '(1) the degree of knowledge or skill possessed
or the degree of care ordinarily exercised under the circumstances, at the time of the act
complained of, by health care providers in the field or speciality in which the defendant
is practicing" and '(2) that the defendant either lacked this degree of knowledge or skill
8 Hagen v. Strobel, 353 P.3d 799, 802 (Alaska 2015) (quoting Kelly v.
Municipality of Anchorage , 270 P.3d 801, 803 (Alaska 2012)).
9 Id. at 802-03 (quoting Kelly, 270 P.3d at 803).
10 Dapo v. State, 454 P.3d 171, 175 (Alaska 2019) (quoting Marathon Oil Co.
v. State, Dep't of Nat. Res., 254 P.3d 1078, 1082 (Alaska 2011)).
-8- 7518
----------------------- Page 9-----------------------
11
or failed to exercise this degree of care." We have held repeatedly that these elements
of the plaintiffs' case require the support of expert testimony except 'in non-technical
situations where negligence is evident to lay people." 12
Theadmissibility ofexpert testimony is governed by AlaskaEvidenceRule
702. The rule provides that '[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
13 But Rule 702(c) notes an exception for
thereto in the form of an opinion or otherwise."
professional negligence claims; in those cases 'a person may not testify as an expert
witness on the issue of the appropriate standard of care except as provided in
AS 09.20.185."
That statute, titled 'Expert witness qualification," reads in full:
(a) In an actionbased on professional negligence, aperson
may not testify as an expert witness on the issue of the
appropriate standard of care unless the witness is
(1) a professional who is licensed in this state or in
another state or country;
(2) trained and experienced in the same discipline or
school of practice as the defendant or in an area directly
related to a matter at issue; and
11 AS 09.55.540(a).
12
Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska 1984); see also
Hagen, 353 P.3d at 803 (noting that jury may ordinarily find breach of health care
provider's duty of care only on basis of expert testimony); Midgett v. Cook Inlet Pre-
Trial Facility, 53 P.3d 1105, 1115 (Alaska 2002) ('We have held that, where negligence
is not evident to lay people, the plaintiff in a medical malpractice action must present
expert testimony to establish the claim.").
13 Alaska R. Evid. 702(a).
-9- 7518
----------------------- Page 10-----------------------
(3) certified by a board recognized by the state as
having acknowledged expertise and training directly related
to the particular field or matter at issue.
(b) The provisions of (a) of this section do not apply if the
state has not recognized a board that has certified the witness
in the particular field or matter at issue.
This appeal requires us to again consider the relationship between these two statutes:
AS 09.20.185, governing expert qualifications in all professional negligence cases for
witnesses testifying about the standards of care, and AS 09.55.540, governing the burden
of proof in the more narrow category of 'malpractice action[s] based on the negligence
or wilful misconduct of a health care provider."
B. The Testimony Of An Expert Who Is Qualified Under AS 09.20.185(a)
Is Not Necessarily Sufficient To Carry The Plaintiff's Burden Under
AS 09.55.540.
The superior court's summary judgment order is factually premised on its
description of Dr. Footit, the defendant physician, as 'a board-certified internist
practicing internal medicine." The court determined that the defendant in a medical
malpractice case is entitled to summary judgment 'if the plaintiff fails to present expert
testimony from an expert who is board-certified in [the] same field as the physician who
committed the alleged malpractice who can establish the standard of care." The court
observed that the Beistlines' proposed expert, Dr. Holmquist, was a pharmacist and 'not
board-certified in the same field of practice as" Dr. Footit; because the Bestlines' claims
lacked the support of qualified expert testimony 'about the standard of care required of
a board-certified internist practicing internal medicine," they could not 'survive
summary judgment."
We agree with the superior court's conclusion that Dr. Holmquist's expert
testimony was not sufficient to carry the Beistlines' burden of proof, though our analysis
is different. Because this is a medical malpractice case, we consider the expert witness
-10- 7518
----------------------- Page 11-----------------------
qualification requirements of AS 09.20.185 in light of the special burden of proof
requirements of AS 09.55.540. 14
First,Dr.Holmquist appears to meet therequirement ofAS09.20.185(a)(1)
because he is 'a professional" - a doctor of pharmacy - and 'is licensed in . . . another
state," Washington.15 Second, subsection (a)(2) requires that the testifying expert be
'trained and experienced in the same discipline or school of practice as the defendant or
in an area directly related to a matter at issue." It is undisputed that Dr. Holmquist, as
a pharmacist, was not 'trained and experienced in the same discipline or school of
practice as" Dr. Footit, an internist; this leaves the question of whether he was 'trained
and experienced . . . in an area directly related to a matter at issue."
As the Beistlines contend, we addressed a similar issue in Hymes v.
DeRamus, which involved a prisoner's treatment by Department of Corrections medical
staff.16 We held in Hymes that the testimony of a rheumatologist was relevant to the
standard of care for a prison doctor treating arthritis because he could testify about 'the
17 We also
physical effects of abrupt discontinuation of" an arthritis medication.
considered the affidavit testimony of a psychiatrist, rejecting the argument that she
needed to be trained in correctional medicine and observing that she had 'sufficient
14 SeeHymes v. DeRamus, 222 P.3d874,886 (Alaska2010)(identifying issue
of expert witness qualification in medical malpractice case as whether the proposed
expert witness could 'provide testimony relevant to the standard of AS 09.55.540(a)(1)
and [whether] she [met] the requirements of AS 09.20.185(a) as to licensure, training and
experience, and certification directly relevant to an area of practice at issue in this case").
15 Evidence of Dr. Holmquist's licensure does not appear in our record, but
because it is not challenged we assume he meets this criterion of AS 09.20.185(a).
16 222 P.3d. at 878, 885-87.
17 Id. at 886.
-11- 7518
----------------------- Page 12-----------------------
training and experience in psychiatry and psychotherapy and related fields to meet the
requirements of subsection (a)(2) (training and experience in an area directly related to
a matter at issue) to testify regarding the psychological effects of failing to adequately
18 For both experts, thus, we concluded that
treat [the prisoner's] physical conditions."
their testimony about the physical effects of the alleged malpractice would be relevant
to establishing the standard of care.19 Hymes supports the Beistlines' argument that the
area in which Dr. Holmquist is 'trained and experienced" - i.e., the 'proper protocols
for weaning and discontinuing medication" -is 'directly related to . . . a matter at issue"
for purposes of AS 09.20.185(a)(2).
Because of Hymes ' procedural posture, however, we were not called upon
to determine in that case whether the testimony of the plaintiffs' two proposed experts,
either singly or in combination, would be enough to establish the standard of care.
Although the superior court had refused to consider the experts' affidavits, it granted
summary judgment on an unrelated ground: the plaintiffs' failure to exhaust their
20 Reversing the superior court's decision of that issue, we
administrative remedies.
observed that the experts' affidavits would now be relevant on remand when the superior
court took a renewed look at the merits.21
But relevance does not equal sufficiency. The issue more squarely
presented on this appeal is whether a plaintiff can prove the standard of care, as required
by AS 09.55.540(a)(1), by the testimony of an expert witness who may satisfy the
18 Id.
19 Id. at 886-87 & n.45.
20
Id. at 881-85.
21
Id. at 885-87.
-12- 7518
----------------------- Page 13-----------------------
qualification standards of AS 09.20.185 but otherwise lacks expert perspective on 'the
field or specialty in which the defendant is practicing."
C. Dr. Holmquist's Affidavit Was Not Sufficient To Create A Genuine
Issue Of Material Fact About An Internist's Standard Of Care.
As noted above, the focus of the superior court's decision was
Dr. Holmquist's lack of board certification in a relevant field as required by
AS 09.20.185(a)(3); accordingly, that is the focus of the parties' briefing on appeal. The
superior court decided that because Dr. Holmquist was 'not a board-certified internist,"
he was 'not qualified to offer expert testimony about the standard of care required of the
defendant." The Beistlines challenge this decision by arguing that subsection (a)(3)
refers only to boards officially recognized by the State of Alaska through its executive
branch; that the State has not officially recognized any boards in this way; and therefore,
pursuant to AS 09.20.185(b), '[t]he provisions of (a) of this section do not apply,"
meaning that Dr. Holmquist's expert qualifications are governed only by Evidence
Rule 702.
We find it unnecessary to address these arguments. Alaska Statute
09.55.540(a)(1) requiresthat theplaintiffin amedicalmalpracticecaseprove'thedegree
of knowledge or skill possessed or the degree of care ordinarily exercised under the
circumstances, at the time of the act complained of, by health care providers in the field
or specialty in which the defendant is practicing." (Emphasis added.) Regardless of
how we interpret the board-certification requirement of AS 09.20.185(a)(3),
Dr. Holmquist's affidavit testimony - the Beistlines' only evidence on the standard of
care - was insufficient to create a genuine issue of material fact on that subject.
Dr.Holmquist's affidavitdescribes hiscredentialsasaDoctorofPharmacy,
a former assistant professor at a university school of pharmacy, and an educator certified
by the American Society of Pain Educators and the American Medical Association.
-13- 7518
----------------------- Page 14-----------------------
Dr. Holmquist identifies the drugs at issue in this case and the protocols for patient
withdrawal, briefly describes Marcie's symptoms upon her admission to the emergency
room, and concludes that rather thanimmediately discontinuing her benzodiazepines and
Z-drugs, 'Dr. Footit and the hospital staff should have been focused on rapidly raising
her sodium levels." Dr. Holmquist's conclusion about the standard of care is this:
[G]iven the risks of abruptly discontinuing benzodiazepines
and Z-drugs in a patient with long-term physical dependence
onthesemedications, following proper protocols forweaning
and discontinuing medication is the standard of care. This
standard of care should be general knowledge to a board
certified internal medicine physician, but, if not, then there
should have been a consult between the internist and the
hospital's pharmaceutical department.
Dr. Holmquist thus concedes that he does not know whether the withdrawal protocols
he describes, known to a pharmacy expert, are also 'general knowledge to a board
certified internal medicine physician," although he believes that they 'should be." And
nothing in his affidavit indicates that he has a basis in training or experience for knowing
the answer to that question or for knowing the circumstances under which an internist
would consider it necessary to consult 'the hospital's pharmaceutical department." This
is in contrast to the testimony of the defendants' expert, Dr. McIlraith, who testified
based on his own training and experience as an internist. According to Dr. McIlraith,
Dr. Footit acted appropriately by withdrawing Marcie's medications because she 'was
onmedications that couldcausedelirium,in prescribeddosagesexceeding recommended
amounts, and because Dr. Footit could not ascertain how Marcie was taking her
medications."
Dr. Footit and the hospital had the initial burden of proving that there were
no genuine issues of material fact and that they were entitled to judgment as a matter of
law on the issue raised in their summary judgment motion - whether Dr. Footit's
-14- 7518
----------------------- Page 15-----------------------
22
conduct met the governing standard of care. The Beistlines conceded at oral argument
on this appeal that the defendants met that burden with the affidavit of Dr. McIlraith.
The burden therefore shifted to the Beistlines 'to set forth specific facts showing that
[they] could produce evidence reasonably tending to dispute or contradict the
23
[defendants'] evidence and thus demonstrate that a material issue of fact exist[ed]."
Because Dr. Holmquist's affidavit testimony did not demonstrate a basis on which to
challenge Dr. McIlraith on the prevailing standard of care for internists, the superior
court was correct to conclude that the Beistlines' claims could not survive summary
judgment.24
V. CONCLUSION
The judgment of the superior court is AFFIRMED.
22 Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 517 (Alaska 2014).
23 Id. (quoting State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32
(Alaska 1978)).
24 The Beistlines also argue that summary judgment was premature, either
because it was error to grant summary judgment before the parties were required to
disclose their experts or because the Beistlines should have been granted more time to
produce the expert testimony of an internist. As described above, the superior court
granted extensions for the Beistlines' response to the defendants' motion, ultimately
totaling 83 days in addition to the initial 15 days allowed by Alaska Civil Rule
77(c)(2)(ii). The court allowed the last two weeks of extension despite a finding that the
Beistlines had been dilatory in discovery, citing the 'policy in favor of deciding the case
on the merits." On this record and the Beistlines' cursory briefing of the issue, we see
no abuse of discretion. See Erica G. v. Taylor Taxi, Inc., 357 P.3d 783, 786 (Alaska
2015) ('We apply the abuse of discretion standard when reviewing superior courts'
rulings on motions for extension of time.").
-15- 7518
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
