Long v. Arnold, 2016 Alas. LEXIS 137

Background

In July 2012 Erin Long drove off the road after Robert Arnold turned his truck onto the road and cut her off; Long’s car did not hit Arnold’s truck or any roadside object.
Long sought medical treatment for pain starting two days after the accident and later sued Arnold for negligence seeking damages for injury, medical expenses, and non-economic losses.
At trial Arnold admitted negligence; the jury found Arnold’s negligence was not a "substantial factor" in causing Long’s harm and did not reach damages.
Arnold moved for and received costs and attorney’s fees under Alaska Civil Rules 79 and 82; the award included $375 in City and Borough of Juneau sales tax on attorney services.
Long appealed, challenging: (1) admission of defendant’s medical expert, (2) causation and damages jury instructions, (3) apportionment of fees/costs between Long and her insurer (State Farm), and (4) inclusion of Juneau sales tax in the fee award.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of defendant’s medical expert	Expert disclosures were incomplete/untimely; expert unhelpful because he did not examine Long; biased	Disclosures were supplemented in time; expert qualified by training and records review; bias goes to weight not admissibility	Admission affirmed: no abuse of discretion; disclosures adequate and expert could assist jury
Use of "substantial factor" instruction and "remote or trivial" language	Instruction misstated law and elevated plaintiff’s burden by requiring negligence not be "remote or trivial"	Instruction accurately states Alaska law derived from Restatement; relates negligence’s relation to harm, not re‑quantifying fault	Affirmed: instruction correct and did not raise plaintiff’s burden beyond preponderance standard
Multiple-cause / preexisting condition instruction	Requested instruction that several factors may each be substantial causes; concerned jury attributing harm to preexisting condition	Court gave Pattern Instruction 20.11 on aggravation of preexisting conditions; found no evidence of multiple independent sufficient causes	Affirmed: multiple-cause instruction unnecessary; Pattern Instruction 20.11 adequately addressed preexisting condition issue
Damages instruction (noneconomic damages; mitigation language)	Proposed noneconomic damages wording; objected to mitigation phrasing	Jury never reached damages because of negative causation finding	Moot: instructions on damages not reached by jury, so no review needed
Apportionment of fees/costs between plaintiff and insurer (State Farm)	Long argues fees/costs should be apportioned because insurer paid medicals and had subrogation interest	State Farm had instructed Long not to pursue its subrogation; insurer’s claim was not litigated here	Affirmed: no apportionment required because State Farm’s claim was not presented or litigated
Inclusion of Juneau sales tax in Rule 82 attorney’s fee award	Sales tax on attorney services is not an "actual attorney’s fee" under Rule 82 and Rule 82 does not authorize awarding the tax	Tax is an unavoidable, inseparable part of attorney cost to client; Rule 82 should compensate actual client cost	Reversed on this point: including the Juneau sales tax in the Rule 82 award was error; remanded to recalculate fees without the tax

Key Cases Cited

Cooper v. Thompson, 353 P.3d 782 (Alaska 2015) (standard of review for expert testimony)
Thompson v. Cooper, 290 P.3d 393 (Alaska 2012) (medical expert causation testimony may assist jury even without physical exam)
Sylvia L. v. State, Dep't of Health & Soc. Servs., 343 P.3d 425 (Alaska 2015) (bias of expert goes to weight, not admissibility)
Vincent by Staton v. Fairbanks Mem'l Hosp., 862 P.2d 847 (Alaska 1993) (proximate cause/prong on significance and responsibility)
Winschel v. Brown, 171 P.3d 142 (Alaska 2007) (substantial factor test and causation principles)
Ruggles v. Grow, 984 P.2d 509 (Alaska 1999) (effect of insurer instructing insured not to present insurer’s claim)