MICHAEL J. COOPER and CENTRAL PLUMBING & HEATING, Appellants,
SAMUEL L. THOMPSON, Appellee.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, No. 3AN-09-06600 CI Sen K. Tan, Judge.
Matthew D. Regan and Alex Vasauskas, Holmes Weddle & Barcott, P.C., Anchorage, for Appellants. Marc W. June, Law Offices of Marc June, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
FABE, Chief Justice.
In December 2008 Michael Cooper caused a car accident that injured Samuel Thompson. During the second trial on compensatory damages the superior court excluded any evidence that Thompson had been assaulted by his then-girlfriend after the accident and limited the testimony of a defense expert witness. The superior court also delivered an instruction on liability for additional harm to which Cooper objected. The jury returned a $1, 458, 430 verdict in favor of Thompson, which exceeded his offer of judgment and thus entitled him to an award of attorney's fees under Alaska Civil Rule 68. The superior court calculated Thompson's fee award based on the contingency fee agreement he had entered into with his attorney. Cooper and his employer appeal the trial court's evidentiary rulings, jury instruction, and fee award. W e reverse the complete exclusion of the evidence that Thompson had been assaulted because it was relevant to his claim of continuing injury suffered as a result of the car accident, and we remand for a new trial.
II. FACTS AND PROCEEDINGS
This is the second appeal arising out of this litigation. We provided this overview in our previous decision:
In December 2008 Michael Cooper caused a car accident that injured Samuel Thompson. Thompson sued Cooper and Cooper's employer[, Central Plumbing & Heating, collectively "Central, "] for compensatory and punitive damages. The jury returned a verdict for Thompson for compensatory damages, but not for punitive damages. The parties appeal[ed] rulings on evidentiary issues, jury instructions, and denied motions. We affirm[ed] most of the superior court's rulings, but we reverse[d] its (1) exclusion of Thompson's treating physicians' opinion testimony on medical causation, and (2) denial of a jury instruction on additional harm. We remand[ed] for a new trial on compensatory damages.
The new trial occurred in December 2013. The jury returned a verdict for Thompson. Central appeals two evidentiary rulings, one jury instruction, and awards of attorney's fees under Alaska Civil Rules 40(e)(2) and 68.
III. STANDARDS OF REVIEW
A. Evidentiary Rulings
"A superior court's decision whether to admit evidence under Evidence Rule 403 requires it to balance the probative value of the evidence against its unfair prejudice; we review this balancing for abuse of discretion." "When reviewing the exclusion of evidence under Evidence Rule 403 as unfairly prejudicial, we first 'consider the relevance of the excluded evidence and then determine whether the superior court's exclusion of it constitutes a clear abuse of discretion.' " "We review a trial court's ruling on the admissibility of expert testimony for abuse of discretion."  "We will find an abuse of discretion when the decision on review is manifestly unreasonable."
"An erroneous decision regarding admissibility will only be reversed 'if it affected the substantial rights of a party.' " "When the trial court has erroneously excluded evidence, a party must show that the error was harmful or prejudicial before we will reverse the trial court."
B. Jury Instructions
"Where a party has objected to a jury instruction in accordance with Rule 51(a), '[t]he correctness of jury instructions is reviewed de novo.' " "An instruction that sets out an incorrect or incomplete statement of the applicable law amounts to reversible error only if it causes substantial prejudice to a party - that is, only 'if it can be said that the verdict may have been different had the erroneous instruction not been given.' " "We evaluate whether any error was prejudicial by putting ourselves in the position of the jurors and determining w hether the error probably affected their judgment."
C. Attorney's Fees
"We review awards of attorney's fees for abuse of discretion and will reverse 'if the award is arbitrary, capricious, manifestly unreasonable, or improperly motivated.' " We "review de novo issues concerning the interpretation of civil rules, 'adopting the rule of law that is most persuasive in light of precedent, policy and reason.' "
A. Evidence Of The Domestic Violence Assaults Against Thompson
1. Factual and procedural background
The car accident occurred in late December 2008. During the following months Thompson complained of neck and lower back pain, and he underwent a diagnostic procedure in April 2009 and disc replacement surgery in May 2009. During this period Thompson was dating a woman named Amy Christiansen.
In July 2009 Thompson petitioned for and received a protective order against Christiansen. In the ex parte proceeding Thompson described a July 23, 2009 incident of domestic violence in which Christiansen punched and kicked him, as well as an earlier incident in which Christiansen stood on him and choked him. He did not specify the date of the earlier incident during the ex parte hearing, but he did report that it occurred after his back injury. At a hearing on the admissibility of this domestic violence evidence during the first trial, he clarified that the choking incident occurred in July 2009.
Before the first trial Thompson moved to exclude all evidence of domestic violence against him. The superior court ruled that evidence of domestic violence could not be admitted without prior clearance from the court that it was permissible under Evidence Rule 403. At the first trial Central questioned Thompson about the domestic violence outside the presence of the jury, and the superior court ruled that the testimony would not be admitted. The court explained that it found Thompson's testimony that the domestic violence did not occur until after the surgery credible and concluded that the probative value of evidence about domestic violence would be outweighed by the evidence's danger of unfair prejudice.
During the first trial Thompson testified that although he felt pain in his neck and shoulders shortly after the accident, that pain had since ended, leaving only the pain in his lower back, or lumbar spine. Following our remand Thompson was deposed again. During his second deposition he testified that he was experiencing pain in his shoulders and neck, or cervical spine, as well as headaches and the pain in his lower back. Thompson testified about this pain at the second trial, and his experts testified that he had herniated discs in both his lumbar spine and cervical spine.
Before the second trial Thompson moved that the superior court's order excluding evidence of domestic violence absent prior clearance from the court be extended to the second trial. Central opposed and cited the cervical disc injuries that Thompson claimed in the second trial but not the first as reason to revisit that ruling. The superior court granted Thompson's motion and again ruled that evidence of domestic violence was "highly prejudicial" and would be "subject to a balancing test under Evidence Rule 403 before it may be admitted."
During Thompson's case-in-chief in the second trial several expert witnesses testified about whether the accident was the likely cause of Thompson's injuries. Three of the witnesses were asked to describe the likelihood that the accident had caused the injuries "assuming no significant intervening trauma." All three answered that the accident was the most likely cause.
During cross-examination of one of Thompson's treating physicians, Dr. Allison Hanna, Central asked whether choking could cause cervical disc herniation. She answered that it could. Central elicited similar testimony from one of its own expert witnesses, Dr. James Blue, who testified that the act of fighting off a choking attempt could cause cervical disc herniation.
Central then stated its intention to call Thompson and "ask Mr. Thompson if he had been choked at some point - without identifying who the source was, if he had been choked at some point after the accident, but prior to July 23rd of 2009, " the date of the incident of domestic violence that led Thompson to seek a protective order. Central argued that the references to the absence of significant trauma other than the accident in the questioning of Thompson's experts had opened the door to evidence about the incidents of domestic violence.
The superior court held a hearing outside the presence of the jury and ordered briefing. Thompson argued that the evidence should be excluded either as more unfairly prejudicial than probative under Evidence Rule 403 or based on Central's failure to implead Christiansen as required by AS 09.17.080. Central argued that AS 09.17.080 was not applicable because "this case does not present a question of apportionment of fault" because "any spinal injury Mr. Thompson sustained or developed was due to other causes, including domestic violence, which are distinct, separate, and unrelated to the accident or to the medical treatment for injuries sustained in the accident."
The superior court, relying on our decision in L.D .G ., Inc. v. Brown,  ruled that AS 09.17.080 applied and prevented Central from arguing that Christiansen bore any of the responsibility for Thompson's injuries. It alternatively ruled that the evidence of domestic violence was inadmissible under Evidence Rule 403 because the petition and ex parte protective order did not mention any injuries or medical treatment associated with the domestic violence assault incidents, and because the topic of domestic violence was so sensitive, with high potential for ...