Grant T. RODERER, M.D. and Advanced Pain Centers of Alaska, Inc., Appellants,
Deborah DASH, Appellee.
[Copyrighted Material Omitted]
Matthew K. Peterson and Linda Johnson, Clapp, Peterson, Van Flein, Tiemessen & Thorsness, Anchorage, and Sanford M. Gibbs, Brown, Waller & Gibbs, P.C., Anchorage, for Appellants.
George M. Kapolchok, Kapolchok Law Offices, Anchorage, and Cheryl Mandala and Matthew Singer, Jermain Dunnagan & Owens, P.C., Anchorage, for Appellee.
Before: CARPENETI, Chief Justice, WINFREE, and CHRISTEN, Justices.
Deborah Dash brought a medical malpractice claim against Dr. Grant Roderer based on a procedure he performed to relieve her back pain. A jury awarded Dash roughly $1.4 million in compensatory damages. The superior court awarded Dash costs under Alaska Civil Rule 79 and attorney's fees under Alaska Civil Rule 68. Dr. Roderer appeals from the denial of his motions to dismiss, for judgment notwithstanding the verdict, and for a new trial. He also appeals the order awarding fees and costs. We affirm the superior court's denial of these motions and the court's award of costs, and conclude that the court's fee award was invited error.
II. FACTS AND PROCEEDINGS
A. Dash's Pain And Treatment
Dash began experiencing pain in her back, right hip, knee, and foot in early 2001. She managed her pain using a combination of over-the-counter drugs and Vicodin.
Dash first saw Dr. Roderer, of Advanced Pain Centers of Alaska (APCA), in August of 2002. Dr. Roderer's first treatment of Dash involved injecting steroids into her spine. These treatments began in August 2002 and continued for several months, but did not provide sufficient relief. Dr. Roderer then performed a discogram-an invasive diagnostic procedure-on October 22, 2002. The procedure revealed problems with three of Dash's discs. Dr. Roderer and Dash discussed the results of the discogram and the possibility of Intradiscal ElectroThermal Therapy (IDET) as a treatment. Dash agreed to undergo the IDET procedure and Dr. Roderer performed it at Providence Hospital on three of Dash's spinal discs. The IDET procedure involves insertion of a small, wire-like heating element into a disc. The element is then heated to roughly 194 degrees Fahrenheit. Dash testified that she was unconscious during the procedure except for a brief period when she was roused by " insane pain." The procedure left Dash initially unable to walk. Roughly two weeks after the procedure, Dash's medication was no longer sufficient to manage her pain and her husband persuaded Dr. Roderer's office to prescribe an alternative-apparently OxyContin. About a month after the procedure, Dash successfully transitioned from using a wheelchair to using a walker.
Dash was evaluated by Dr. Onorato, a neurologist, on March 7, 2003. Dr. Onorato had been treating Dash for migraines and another nerve condition for several years. Dr. Onorato diagnosed nerve damage at " L5-S1" that affected Dash's ability to use her left leg.
Dash moved to Idaho in March of 2003. At that point she began receiving treatment through the Idaho Pain Center.
B. The Dashes File Suit
Dash and her husband, David Dash, filed suit against Dr. Roderer and APCA on December 14, 2004. They alleged that the IDET caused nerve damage which led to increased pain, decreased mobility, and decreased quality of life for Dash. They alleged that Dr. Roderer failed to exercise the degree of skill and care necessary to perform the IDET properly, and failed to obtain Dash's informed consent to the procedure. They also alleged that David Dash suffered damages from loss of society and loss of consortium.
C. The Dashes' Offer Of Judgment
On July 28, 2006 the Dashes conveyed a settlement offer pursuant to Rule 68. The document offered " to allow judgment to be entered against defendants Grant T. Roderer, M.D., and Advanced Pain Centers of Alaska, Inc., in the amount of $450,000.00 inclusive of costs, pre-judgment interest, and attorney fees, in complete satisfaction of plaintiffs' claims." The document was signed by the Dashes' attorney's secretary " for and with permission of" the attorney. The offer was not accepted.
In October 2006 counsel for the Dashes and Dr. Roderer stipulated to dismiss David Dash as a party to the case. This stipulation was approved by the superior court in November 2006.
D. Expert Report Issue
Dr. Roderer moved to dismiss the plaintiff's complaint on October 27, 2006 because Dash had failed to file an expert report by the court's August 10, 2006 pre-trial deadline. Dash's attorney filed an opposition, along with a " working draft" of the report of Dash's expert, Dr. Eric Boyd. Dr. Roderer replied to Dash's opposition with a " Notice of Continuing Non-Compliance and Request for Ruling" in which he questioned the authenticity of the " working draft." In response, Dash's attorney explained that he, not Dr. Boyd, had authored the " working draft," and
asked the court for a continuance so that an adequate expert report could be obtained. The superior court granted the continuance and denied the motion to dismiss but ordered that Dash pay Dr. Roderer's attorney's fees incurred because of the delay. The court also ordered that Dash's attorney pay a $2,500 sanction, that no further continuances would be allowed, and that failure to abide by the court's order would result in dismissal of the action. A final version of Dash's expert report was later produced.
E. Trial And Verdict
Trial was held before a jury beginning June 25, 2007. The jury heard testimony from medical experts for both parties. Dr. Roderer moved for a directed verdict at the close of evidence, arguing that there was not sufficient evidence to support a finding that Dash suffered a severe permanent impairment. The motion was denied as to the alleged injury at L5-S1 but granted as to injuries at other locations.
The jury found that Dr. Roderer was negligent in treating Dash, that he failed to get her informed consent before performing the IDET procedure, that these failings were legal causes of harm to Dash, and that Dash " suffers from one or more severe permanent physical impairments." The jury awarded Dash $1,404,618 in compensatory damages for past and future economic and non-economic losses.
Dr. Roderer moved for relief from the verdict under three alternative theories: (1) judgment notwithstanding the verdict, based on the argument that the preparation of Dash's expert report violated the civil rules and warranted dismissal; (2) a new trial, either on the merits or limited to damages, based on the argument that Dash had not introduced sufficient evidence and the jury's award was a product of " passion and/or prejudice" ; and (3) remittitur, based on the argument that the jury's award of damages was not adequately supported by the evidence. All of these motions were denied.
F. Award Of Attorney's Fees
On July 9, 2007 Dash filed a motion for entry of final judgment to include prejudgment interest and attorney's fees. Because the amount the jury awarded was greater than the Rule 68 settlement offer, Dash argued that she was entitled to an award of fifty percent of her " reasonable actual" attorney's fees under Rule 68. She measured her reasonable actual attorney's fees as the amount she was obligated to pay under her attorney's contingent fee agreement: forty percent of her total gross recovery if the case went to trial. Dash requested an award of attorney's fees in the amount of fifty percent of the amount of fees owed under the contingency fee agreement, or $319,654.87.
Dr. Roderer opposed the motion for fees. He argued that the purported Rule 68 offer of judgment was invalid for three reasons: (1) it was made to two defendants; (2) it was made by two plaintiffs; and (3) it was signed by Dash's attorney's secretary, not Dash's attorney. Dr. Roderer also demanded that Dash's attorney " submit an accounting of time and services performed and his hourly rate" to allow Dr. Roderer to challenge time spent on improper projects, such as writing the " working draft" of Dr. Boyd's expert report.
In response, Dash argued that the settlement offer was valid and that Rule 68 did not require an itemized billing record in the circumstances of this case. Dash explained that her " actual fees will be 40% of the total gross recovery. These fees are reasonable and in fact standard. Plaintiff lawyers do not keep track of their time for billing purposes."
The superior court rejected Dr. Roderer's arguments, initially ordering him to pay fifty percent of the fees owed under the ...