Lindbo v. Colaska, Inc., 414 P.3d 646

Background

In Aug. 2012 Kevin Lindbo, an asphalt truck driver, was struck in the lower back by a can thrown by plant operator Matthew Lindley at Colaska’s plant; Lindbo sought medical treatment and later sued for battery, negligence, and vicarious liability.
At trial the jury found no battery but found Lindley negligent and awarded Lindbo about $2,500 in compensatory damages.
Key disputed factual points included the weight/type of the can (heavy grease can vs. empty aerosol can) and whether Lindbo returned to work soon after the incident.
Colaska produced 20 K&K load sheets late; two sheets showed post‑injury work dates. The court allowed the sheets to be used to refresh a witness’s memory and later admitted all 20.
Evidence admitted over Lindbo’s objections included past medical records (showing prescription drug‑seeking), late child‑support references, and a 2010 conviction for attempted vehicle theft used to impeach credibility.
Lindbo appealed multiple rulings (spoliation instruction, admission/use of late documents, drug/child‑support/prior‑injury evidence, admission of prior conviction, alleged improper vouching in closing, and denial of a new trial); the supreme court affirmed.

Issues

Issue	Plaintiff's Argument (Lindbo)	Defendant's Argument (Colaska)	Held
Refusal to give an adverse‑inference (spoliation) instruction for the missing can	Court should have instructed jury that failure to preserve can permits adverse inference about its weight/contents	No timely request at close of evidence; pretrial, non‑specific request denied without prejudice and not renewed	Reviewed for plain error; no reversible error — any instruction likely would not have changed outcomes
Use of late‑disclosed load sheets: refreshing memory (Alaska Evid. R. 612) vs. Civ. R. 37 sanction	Allowing undisclosed sheets to refresh and then admitting them violated Rule 37(c)(1) and prejudiced Lindbo	Rule 612 permits use of writings to refresh without prior disclosure; court acted within discretion and avoided misleading partial admission	Admission/use under Rule 612 allowed; even if error, admission of post‑injury sheets harmless given other evidence of post‑injury work
Admission of evidence of prior prescription drug use (and limiting instruction)	Such evidence impermissibly invites character inference and is unduly prejudicial under Rule 404(a)	Drug‑use history is highly relevant to damages, credibility, and causation; limiting instruction protects against improper use	Court did not abuse discretion: evidence admissible for limited purposes and proper limiting instructions given
Evidence of prior injuries and late child‑support references	Such evidence was improper character evidence	Used to attack credibility/damages; no specific preserved objections on appeal	Issues not meaningfully developed on appeal and therefore treated as abandoned
Admission of 2010 attempted vehicle theft conviction for impeachment (Alaska Evid. R. 609)	Attempted vehicle theft is a non‑dishonesty or ‘joyriding’ offense and/or too remote	Attempt requires intent (for attempt) and bears on deceitful propensity; conviction within 5‑year window; probative > prejudicial	Court did not abuse discretion — conviction admissible for impeachment under Rule 609
Prosecutorial/defense counsel vouching during closing — implying an absent witness had “nothing good to say”	Comment constituted improper vouching (attorney vouching for evidence not before jury)	Counsel properly highlighted the absence of a potentially favorable witness to suggest weakness in plaintiff’s case (permitted argument)	Statements were permissible (not personal vouching); no court error in declining to strike or correct
Motion for new trial based on discovery violations (load sheets)	Late disclosure gravely prejudiced Lindbo’s ability to present rebuttal and justify a new trial	Court reasonably exercised discretion; new evidence did not establish prejudice or unfair surprise warranting retrial	Denial of new trial affirmed — no abuse of discretion

Key Cases Cited

Ayuluk v. Red Oaks Assisted Living, Inc., 201 P.3d 1183 (Alaska 2009) (standard: correctness of jury instructions reviewed de novo)
Todeschi v. Sumitomo Metal Mining Pogo, LLC, 394 P.3d 562 (Alaska 2017) (discussing spoliation/adverse‑inference issues and harmless‑error analysis)
Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807 (Alaska 2005) (preservation/objection rules for jury instructions and plain‑error review)
Jones v. Bowie Indus., Inc., 282 P.3d 316 (Alaska 2012) (Rule 403 balancing and limits on impeachment/character evidence)
Liimatta v. Vest, 45 P.3d 310 (Alaska 2002) (preaccident drug use probative on damages, credibility, and causation)
City of Fairbanks v. Johnson, 723 P.2d 79 (Alaska 1986) (convictions without intent to permanently deprive can still involve deceit for Rule 609 purposes)
Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240 (Alaska 2007) (use of documents to refresh witness memory under Evidence Rule 612)