Cooper v. Thompson
2015 Alas. LEXIS 69
| Alaska | 2015Background
- December 2008 car collision caused by Michael Cooper injured Samuel Thompson; Thompson sued Cooper and employer Central Plumbing & Heating (Central).
- First trial: compensatory verdict for Thompson; Alaska Supreme Court reversed limited evidentiary rulings and remanded for new trial on damages.
- Second trial (Dec. 2013): Thompson testified to ongoing neck, shoulder, headache, and lumbar pain; experts attributed both lumbar and cervical disc herniations to injury. Thompson had obtained a July 2009 protective order alleging assaults (including choking) by then‑girlfriend Amy Christiansen after his surgery.
- Trial court excluded all evidence of the post‑accident domestic assaults (ruled Evidence Rule 403 and AS 09.17.080 barred it); it limited Central’s biomechanics expert (Dr. Scher) from opining on specific medical causation; it gave a custom additional‑harm jury instruction; it awarded continuance‑related fees to Thompson under Civ. R. 40(e)(2).
- Jury returned $1,458,430 for Thompson (exceeding his Rule 68 offer). The Supreme Court reverses the wholesale exclusion of the assault evidence, affirms limits on Dr. Scher, affirms additional‑harm instruction and continuance fee award, vacates the Rule 68 fee award, and remands for a new trial.
Issues
| Issue | Plaintiff's Argument (Thompson) | Defendant's Argument (Cooper/Central) | Held |
|---|---|---|---|
| Exclusion of post‑accident domestic‑violence evidence | Exclude as unfairly prejudicial and irrelevant because assault occurred after surgery and did not result in treatment | Evidence was highly relevant to causation of ongoing cervical injuries (choking can cause herniation); experts were asked to assume no intervening trauma, which opened the door | Reversed: wholesale exclusion was abuse of discretion; assault evidence was relevant and could be limited (e.g., omit assailant identity) rather than barred entirely; remand for new trial |
| Applicability of AS 09.17.080 (joinder/apportionment) | AS 09.17.080 prevents blaming non‑joined third party (Christiansen); thus her conduct cannot be argued without joining her | Christiansen’s alleged acts were a separate, distinct cause unrelated to the automobile incident, so AS 09.17.080 did not require joinder | Rejected trial court: Pouzanova controls; statute governs allocation of fault for the incident at issue only; joinder not required where third party fault is unrelated to incident |
| Scope of biomechanics expert (Dr. Scher) testimony | Limit expert because medical causation opinions exceed biomechanics expertise; earlier similar limitation was proper | Dr. Scher may testify on forces, accident reconstruction, and general mechanisms of disc injury to refute causation | Affirmed: court within discretion to bar Dr. Scher from diagnosing specific causation for Thompson while allowing reconstruction, force comparisons, and general mechanisms under Rule 702/Daubert framework |
| Additional‑harm jury instruction (liability for harm from medical care) | Pattern instruction too narrow; trial court’s custom instruction may overbroadly impose liability | Instruction should limit liability to additional harm from medical care for the original injury | Affirmed: trial court’s custom instruction largely consistent with Restatement §457; any ambiguity was not prejudicial; pattern instruction is too limited and should not be used when additional‑harm issue is presented |
| Civil Rule 68 attorney’s fees under contingent fee agreement | Contingent fee may constitute reasonable actual fees; court can use contingency percentage to calculate Rule 68 award | Rule 68 requires „reasonable actual attorney’s fees incurred from the date the offer was made,” so fees must be based on actual hours after the offer; contingency cannot be apportionably assigned | Reversed as to Rule 68 award: trial court erred in using the contingency contract; Rule 68 fees must be calculated from actual hours worked after the offer at a reasonable hourly rate (trial court determines rate) |
Key Cases Cited
- Thompson v. Cooper, 290 P.3d 393 (Alaska 2012) (prior appeal reversing exclusion of treating physicians' causation testimony and remanding)
- Pouzanova v. Morton, 327 P.3d 865 (Alaska 2014) (AS 09.17.080 does not require joinder where alleged third‑party conduct is unrelated to the incident at issue)
- L.D.G., Inc. v. Brown, 211 P.3d 1110 (Alaska 2009) (discussing limits on introducing third‑party wrongdoing where fault for the incident is at issue)
- State v. Coon, 974 P.2d 386 (Alaska 1999) (adopting Daubert reliability/relevance standard for scientific expert testimony)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (scientific expert testimony must be reliable and relevant)
- Okagawa v. Yaple, 234 P.3d 1278 (Alaska 2010) (Rule 68 fee awards may be based on attorney time and reasonable hourly rate even when counsel is retained on contingency)
- Roderer v. Dash, 233 P.3d 1101 (Alaska 2010) (discussing apportionment of post‑offer attorney time in Rule 68 calculations)