LYDIA JOHNSON, individually and as personal representative for the ESTATE OF DAVY JOHNSON, Appellant,
v.
J.G. PATTEE, INC.; MATTHEW OBERLANDER; and JOHN G. PATTEE, Appellees.
Appeal
from the Superior Court of the State of Alaska, No.
3AN-11-10280 CI, Third Judicial District, Anchorage, Paul E.
Olson, Judge.
Jeffrey J. Barber, Barber & Associates, LLC, Anchorage,
for Appellant.
Darryl
L. Thompson, Darryl L. Thompson, P.C., Anchorage, for
Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
WINFREE, JUSTICE.
I.
INTRODUCTION
During
a personal injury trial the defense expert witness varied
from his written report, expressing new opinions to justify a
bar employee's use of force. In his report the expert had
described the force as a reasonable defensive tactic; at
trial he testified in addition that the bar employee was
confronting the plaintiff at the bar entrance, that the bar
had a duty to keep the entrance safe and clear, that local
police rely on bar personnel to keep the area safe and clear,
and that the bar employee was using a reasonable "soft
hand escort hold" when the incident occurred. The
plaintiff then sought to cross-examine the expert with grand
jury testimony by an Anchorage police officer - testimony the
expert had been given to review prior to writing his report -
that was contrary to key points of the expert's new
opinions. The superior court refused to allow this
cross-examination, telling the plaintiff that she could try
to call the officer as an expert witness. The plaintiff later
tried to call the officer as a hybrid expert witness, but the
defendants objected because he was not on the plaintiffs
witness list. The superior court then refused to allow the
officer to testify. The jury found the bar employee was
justified in using reasonable force to defend against a
trespass.
On
appeal the plaintiff argues that the superior court erred by
precluding her cross-examination of the expert and her
calling the officer to testify as a rebuttal witness. Because
we conclude it was a prejudicial abuse of discretion to
preclude the officer from testifying as a rebuttal witness
with respect to the defense expert's new and unexpected
trial opinions, we vacate the judgment and remand for a new
trial without reaching the cross-examination issue.
II.
FACTS AND PROCEEDINGS
A.
Davy Johnson's Injury; Lawsuits
Davy
Johnson suffered a skull fracture after hitting his head on
the sidewalk during an incident outside an Anchorage bar.
Matthew Oberlander, a bartender assisting the bar's
security, had been told by the bar's general manager that
Davy was prohibited from reentering the bar or obstructing
its doorway. When Davy refused to move from his position on
the sidewalk outside the bar's entrance, Oberlander
pushed Davy, who fell backward and struck his head on the
sidewalk.
Davy
filed suit against the bar's owner, J.G. Pattee, Inc.,
its dominant shareholder, John G. Pattee (collectively
Pattee), and Oberlander for negligently or recklessly causing
Davy's injuries. Following Davy's death about a year
later, the parties stipulated to the substitution of his
wife, Lydia Johnson, the personal representative of his
estate, in the lawsuit. Lydia also filed a separate suit
against the same defendants in her individual capacity; the
superior court later consolidated the cases.
B.
Oberlander's Assault Charge; Officer Witte's
Grand Jury Testimony; Protective Order
Oberlander
was charged with criminal assault arising from the incident.
Gregory Witte, a police officer who arrived at the scene,
testified before the grand jury. Witte had not witnessed
Oberlander's push or Davy's fall, but Witte later
viewed security camera footage of the incident and testified
that Oberlander had pushed Davy up and out from beneath his
rib cage to get him off balance. Witte testified that Davy
was "clearly standing on the sidewalk portion [that]
everybody has aright to walk down" and that, if he was
"causing ... a problem in the public area," the
police should have been called. Following Oberlander's
acquittal of the assault charge, the superior court issued a
protective order precluding the parties "from
introducing any evidence or testimony that could lead the
jury to conclude that Oberlander was arrested, indicted and
criminally prosecuted."
C.
Preliminary Witness List; Motions In Limine To Strike
Police Officers' Testimony; Final Witness List
Lydia's
preliminary witness list identified two police officers other
than Witte and "[a]nyone . . . attached to troopers or
the Anchorage Police Department or other police agencies [to]
testify to liability and give 'other expert opinions'
as to why any defendant is liable for negligence . . . and
other opinions." Oberlander filed a pretrial motion to
limit the named officers' opinions. Pattee separately
moved to preclude the officers from testifying as experts at
all, contending they were merely lay witnesses "in the
exact same position as the jurors to evaluate the
video." Lydia opposed both motions, arguing that she did
not "expect to call police officers unless necessary in
rebuttal" and that it would be premature and improper to
preclude the officers from testifying as experts. The
superior court denied both motions. Lydia's final witness
list did not include any police officers, but it did list
"[a]ny proper rebuttal witness."
D.
Examination Of The Defense Expert
After
reviewing video of the incident, the grand jury transcript,
and other documents, the defense expert, retired Bellevue,
Washington police chief Donald Van Blaricom, issued a report
stating that "Oberlander did not use excessive
force" and that when he pushed Davy it was "an
appropriate defensive tactic." The report made no
mention of the bar's responsibility to keep the sidewalk
area around its entryway safe and clear or whether
Oberlander's use of force was appropriate to keep the
bar's entryway clear or to stop Davy from reentering the
bar.
During
the defense case-in-chief, Pattee's counsel asked Van
Blaricom a series of questions about whether, in his
experience, a bar is responsible to keep the area around its
entryway safe and clear. Van Blaricom responded, "Yes. .
.. [y]ou have to keep it clear ... for safety and other
reasons." Lydia's counsel asked for a bench
conference outside the jury's presence and objected that
Van Blaricom was testifying to opinions not disclosed by and
outside the scope of his expert report, which had been marked
as an exhibit. Lydia's counsel argued in part:
"There's nothing in here [- by clear implication Van
Blaricom's expert report -] where Mr. Van Blaricom is
indicating that sidewalk that the bar had a responsibility to
keep clear, there's nothing in here supporting what the
basis of his opinions in that regard might be, anything about
the location . .. ." The court responded: "I
...