Johnson v. J.G. Pattee, Inc.

          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 ...