*1 (Alаska 1980) Dist., 67, School added). not (emphasis This standard was 6, as the order of March met this case 2003, permanent assignment. was not Accordingly, EASTAUGH, MATTHEWS, Before: IT IS ORDERED: CARPENETI, FABE, Justices. petition 1. The for review is GRANTED. superior court’s order of June 2. The ORDER change of denying petitioner’s notice of for Review.
Petition 42(c) judge under Civil Rule is REVERSED petition for review consideration of is REMANDED for further On and this case 8/12/05, response filed proceedings. filed on 9/1/05. direction of the court. Entered petition for is taken from the This review 21, 2005, deny- superior court’s order of June Justice, BRYNER, participating. Chief change judge. ing petitioner’s notice of of jurisdiction of this case This court returned superior court on March 2005. On
to the 27, 2005, Judge Steinkruger entered an
May stating Appeal” Upon
“Order Conclusion proceedings would be conducted
that further being with this After served
before her.
order, change a notice of petitioner filed
judge timely unless there had been that was MARRON, Appellant, Teva assignment Judge permanent an earlier v. Steinkruger. Lyle STROMSTAD, Appellee.
Judge Steinkruger ruled there was in an order entered assignment earlier No. S-10888. 6, 2003,which stated as follows: March Supreme Court of Alaska. Reassignment Notice of Nov. assigned to the next This case will be Superior judge Fair- appointed Court occurs, Judge Niesje J.
banks. Until assigned to this case.
Steinkruger is
Judge Steinkruger ruled the notice untimely
change judge because 6, 2003 order.
March 42(c) party Rule is entitled
Under Civil right. change judge one as a matter it that notice of a
Our case law makes clear judge
permanent assignment of a is neces- five-day period
sary to start the order
filing change judge. A waiver notice of challenge a party’s right peremptorily
of a party ...
judge “can be found after judge before whom he or
is informed that the judge permanently appearing
she is is the assigned for
assigned to hear the case or is Anchorage Tunley Municipality
trial.” *4 variety discovery,
court made a evidentia- ry, procedural errors. We affirm the except all superior court’s decisions on issues Stromstad, attorney’s its award of fees to we remand. II. AND FACTS PROCEEDINGS
A. Facts passenger in a car that Marrón was rear-ended with his own vehicle at By light a traffic in October 1998. her own admission, pain pa- a “chronic Marrón was accident, prior this and had herniat- tient” previous in a automobile accidеnt in ed disc pain following 1991. She suffered additional yet another automobile accident 1994. An performed in March MRI on Marrón be, in region showed her thoracic her *5 words, However, a “train wreck.” with the manipulation help chiropractic under anes- thesia, feeling Marrón described better be- Although fore the accident with Stromstad. very speed,1 that accident occurred at a low reported a Marrón severe headache and fa- cial numbness at the scene of the accident. symptoms days in the These worsened fol- lowing, vomiting, spotting to include in front eyes, pain up. of her and from the waist Powell, Anchorage, Appellant. Keenan Marrón, doctors, distrusting Alaskan flew Burke, Associates, Dana & S. Wilkerson White, to California to see Dr. John an ortho- Appellee. Anchorage, for pedic surgeon recommended friend. BRYNER, Justice, Chief Before: performed Dr. an Mar- White examination on MATTHEWS, EASTAUGH, FABE, and rón, designed pain response to test back and CARPENETI, Justices. part to certain stimuli. Based at least in on examination,
the results of that Dr. White OPINION operate refused to on Marrón. Marrón then Sunny Uppal, visited Dr. another California CARPENETI, Justice. upon doctor. the results of an MRI Based I. INTRODUCTION performed Spring Uppal Dr. decided likely Lyle were that Marrón Teva Marrón and Stromstad had herniated disc. accident, Uppal perform discogram for which involved an automobile decided Marrón, diagnostic procedure admittedly fault. Marrón sued for Stromstad admitted damages, compensation “incredibly painful.” particularly for medi- “controversial” and The treatments, discogram allegedly proved surgery cal claims arose from that was she appropriate pain. issue at trial was treatment for the accident. The Marron’s causation, largely agreed undergo surgery. and the trial consisted Marrón She successful, testimony. jury surgery found for Strom- asserts roughly him feeling stad and the court awarded costs and that it left her as well as she appeal fees. On Marrón claims the did before the accident with Stromstad. ahead, parties agree passenger, had in which Marrón was a when Both that Stromstad's vehicle light green. stopped light bumped at a red and then the car turned admitted Proceedings udicial.” B. Judge Morse denied Marron’s re- evidence. negligence Marrón sued Stromstad evidence of Stromstad’s quest to introduce that the accident claiming negligence, gross coverage to a statement insurance rebut injuries, caus- previous back her exacerbated would be defense counsel that Stromstad She herniated. ing C 4-5 disc become her any judgment. personally liable for Addi- past earnings, and damages for lost claimed tionally, sought to introduce several enjoy- suffering, pain and loss of future examination re- of Dr. medical Rubenstein’s life, medical care. Stromstad ment of eyidence Marrón, this ports. According to accident, but fault for the admitted he was at against would “show Rubenstein’s bias the cause of accident argued that the defense plaintiffs and towards the insurance injuries surgery. Marron’s to allow industry.” The court refused Mar- to: motions in limine Marrón filed several reports into to introduce the themselves rón (1) Dr. Richard Rubenstein compel evidence, though it did allow Marrón to im- Stirling, two of Stromstad’s James peach Dr. Rubenstein on cross-examination witnesses, income tax produce “all 1099 reports. of the contents with some companies ... or insurance forms for all appeals all of these decisions. [they] from whom obtained other entities trial, unanimously Following con- ex performing forensic [for] monies or fees actions were not a cluded that Stromstad’s (5) years,” in past five pert services for injury to Marrón. Marrón legal cause of (2) witness; bias of each order to show the grounds trial on the that: moved for a new deposition testimo strike Dr. White’s (1) implied untruthfully timely pro ny, failed because Stromstad not insured and Stromstad was would (3) Dr. Ru- expert report; exclude duce an (2) any judgment; personally responsible for testimony, he was not a because benstein’s Dir. Ru- superior court failed to exclude opinions were qualified expert, because *6 causation; as to lack benstein’s opinions did not speculative, and his because (3) attorney a court violated and Stromstad’s Daubert v. Mer- satisfy requirements precluding Dr. Rubenstein from testi- order adopted and as Pharmaceuticals2 rell Dow required to fying how much force is as to (4) Coon;3 exclude State closing in a disc when he stated herniate an accident Stirling, offered as that it would take “Dr. testified reeonstructionist, because his credentials mph to herniate a disc.” more than 1-3 insufficient, investigation too his were superior court’s appeals the denial Marrón limited, opinions failed the Daubert and this motion. (5) test; pieces of evi exclude various dence, including post-accident photographs of attorney’s fol- fees moved Stromstad Judge Superior Court the vehicles involved. trial, motion. opposed the lowing and Marrón the mo F. denied all five of William Morse judgment had made an offer Stromstad appeals these decisions. tions. sixty Rule 684 less than pursuant to Civil made their re- days parties had Septem- in after both four-day jury trial was held
A
Civil Rule
trial,
spective initial disclosures under
Mar-
during
ber 2002. Before
rejected. Based on the
post-acci-
the introduction of
opposed
rón
offer,
and the fact
timing of
car and an
Stromstad’s
photographs of Marron’s
dent
jury verdict
it exceeded Marron’s eventual
of the accident
company appraisal
insurance
(of $0),
superior court held that Civil
argued that this evidence
damage. Marrón
68(b)
sev-
to receive
Rule
entitled Stromstad
a mere fender-
portrayed the accident “as
attorney’s
enty-five percent
post-offer
of his
bender,”
prej-
“irrelevant and
and was thus
generally provides
at-
enhanced
4.Civil Rule 68
IV. DISCUSSION We review a trial court’s decision Superior A. The Did Court Not Abuse admit or exclude evidence for abuse of dis *7 Denying Its Discretion Marron’s cretion, only and will reverse such a decision Compel Motion To Production rights if the error affected the substantial Dr. Rubenstein’s and James Stir- party.8 Similarly, generally a we review a ling’s Income Tax Returns. expert'testimo trial court’s decision to admit ny for abuse of discretion. But when the The court denied Marron’s admissibility expert testimony pre-trial compel of evidence or motion to two of Stromstad’s Getchell, (quoting 5. total of fees to 11. P.3d al The amount Stromstad 65 53 Bierria v. awarded $49,458.52. Co., 654, Ltd., (Alas- Mfg. Dickinson 36 P.3d 656 2001)). ka 833, Hosp., 6. Fletcher v. S. Peninsula 71 P.3d 844 (Alaska 2003). Kava, at 12. 48 P.3d 1173. Motorhomes, 7. v. Inc. DeNardo ABC RVs 51 P.3d Id. 919, (Alaska 2002). 922 Eagle v. Concerned River Val- Cizek Citizens of 50, (Alaska 2003). Lodge,
8. Getchell v. 65 P.3d 53 Inc., 845, (Alaska 2003). ley, P.3d 71 848 Transit, Crouse, 9. Laidlaw Inc. v. Crouse ex rel. 53 Id. 1093, (Alaska 2002). P.3d 1097 Co., Inc., Kirk, 255, (Alaska
10. Kava v. Am. Honda Motor
16. Glamann v.
29 P.3d
259
(Alaska 2002).
2001).
witnesses,
right
privacy
to
Stirling
Ru-
There is no absolute
James
and Dr.
benstein,
discovery
produce
their tax returns. Both
disclose
from
orders to
tax ret
to
request
to
refused Marron’s
may
witnesses had
Generally,
litigant
urns.17
discover
Al-
depositions.
at their
produce
returns
opponent’s
an
tax returns for the sake of
to
though
originally claimed
have testi-
both
determining
damages.18
party’s
But we
“litigation
fied or worked as
consultants”
specifically
have never
determined whether a
plaintiffs
civil
roughly many
as
times
tax
are
witness’s
records
discoverable
defendants,
that
for civil
Stromstad concedes
bias,
purpose of showing that witness’s
or
that
deposition
their
revealed
credibility
impeaching that witness’s
at trial.
predominant-
had worked
fact both witnesses
(iii)
26(b)(2)(i)
Alaska
Civil Rules
allow
ly
experts.
as defense
discovery
a court to limit
where the informa-
compel discovery
sought to
of their
sought
tion
from “some
is’ obtainable
other
prove
income tax returns to
what she -be-
convenient,
that
source
is more
less burden-
strong financial motivation on
lieved to be a
some,
if
expensive,”
or less
“the burden or
Stirling and
part
of both
discovery
expense
proposed
outweighs
testimony that favored
provide
the defense.
likely
interpret
this
benefit.” We
rule in
mo-
court denied Marron’s
seeking
light
purpose
of Marron’s
the tax
revealing opposing
tion. The court held
alleged
prove
experts’
pro-
returns:
interest,
important
witness
was an
bias
bias.
cross-examination
defense
Under
entitled to reveal
one that Marrón was
Marrón,
Stirling
both Dr. Rubenstein
through
trial. Howev-
cross-examination
litigation
they
admitted that
offer their
ser-
er,
“[p]laintiff
right
the court stated
s
primarily
vices
to defendants. Dr. Ruben-
discovery
expert’s
balanced with the
must be
also
amount
stein
discussed the
court
right
privacy.”
held that
compensated
testifying.
him for
Because
experts
right
privacy
would “retain
the information
Marrón elicited
she
returns,
may
questioned
their
but
be
tax
sought
experts
primarily
worked
may
type
about
of information that
—that
superior court
for defendants —the
did not
in or referenced
the returns.”
contained
allowing
ruling
abuse its discretion in not
Marrón to
this
claims
constitutes
discover the witnesses’ tax records.19
abuse of discretion.
Motorhomes,
(Ala.1988)
discovery
(weighing
liberal
rules
17. DeNardo v. ABC Inc. RVs
2002).
(Alaska
against
qualified privilege
emerging
P.3d
"the
disfa
voring
one’s income tax records”
disclosure of
18. Id. at 925.
finding any
"incremental value”
informa
outweighed
substantially
tion in such records
variety
cites cases from
of other
Marron
production imposes
non-party
prejudice
over
argument, particularly
support
states
El
her
issue);
non-controlling
v.Super. Ct.
Allen
Con
(Fla. 1996).
Syken,
kins
“foreseeable that Stromstad would disagreed, court declaring that “White’s use why Uppal and not White found Marrón of making the Waddell factors his evalua- surgery, suitable for ... [and] that Strom- tion type is not the testimony that stad would ask White about the use of a Daubert,” subjected must be because Dr. discogram why he had not used the tech- White “used those in making factors his deci- nique by Uppal.” Considering used that perform surgery.” sion not to Stromstad exactly Marrón techniques “knew what Dr. agrees, explaining that Dr. testimony White’s use,” White used and did not the court con- application was based on his of the Waddell that cluded “Marrón should not have been treatment, test testimony and was not the surprised discograms that White discussed expert. of a retained Furthermore, deposition.” his rea- Daubeyt IY.C, As discussed below in Part that if Dr. soned White was not allowed to Pharmaсeuticals, v. Merrell Dow gov Inc.25 explain why at trial he did not use a disco- admissibility erns the scientific tes gram, Uppal Dr. argue then would be able to timony in federal courts. adopted We have that discogram explained his use of the Daubert,26 explicitly but have never deter opinions regarding difference the two treating physician’s mined whether a testi This, surgery. Marron’s need for the court mony must meet the Daubert criteria. concluded, give “would an inaccurate picture happened.” of what A trial court has Some applied federal courts have Daubert wide in managing discovery discretion testimony to exclude treating physi- process23 admitting expert testimony.24 However, they cians. have done so in cases considerations, In light of the above we find where the issue was physician whether the that court did not abuse its should be allowed to as to causation— point. discretion on this is, that to state a scientific conclusion.27 As notes, applied Dr. White the Wad-
2. Because Dr. White was Marron’s dell test to Marrón in the course of determin- treating physician, treatment, ing preparation not in litiga- admitting court did not err in tion, and not to determine the causation of testimony subjecting without it to alleged injuries. her At least one federal analysis. a Daubert explained decision has “testimony about additionally type asserts that performed pa- treatment on [a White’s should have been subject tient] excluded is factual in nature and is not because his disqualify decision to analysis.”28 to exclusion under a Daubert Lines, Inc., Cir.2000) (treating Glover v. Western Air physician's opinion 745 P.2d on causa 1365, (Alaska 1987). subjected tion reliability to same standards of scientific govern expert оpinions physi solely litigation). cians hired Note that other See, State, 661, (Alas- e.g., Vent v. 67 P.3d apply courts have refused to Daubert in this App.2003). ka See, e.g., Rogers Sec'y fashion. v. & Health Servs., 1337185, (Fed.Cl. Human 2000 WL *4 579, 2786, 25. 509 U.S. S.Ct. 125 L.Ed.2d 2000) (noting that Third and Fourth Circuits (1993). treating physician's testimony admit under Dau- unsupported bert even when scientific stud Coon, 386, 388, 26. State v. 394-95 ies). (Alaska 1999). Stores, 28. Dekerlegand v. Wal-Mart 2000 WL See, e.g., Amorgianos Passenger (E.D.La.2000) Nat’l R.R. (citing Gayes, *1 Patel v. (2d Cir.2002) (af- Corp., (7th Cir.1993) 303 F.3d 264-70 (holding 984 F.2d doctor firming under Daubert district court's decision to is not if is based on observa treating physician’s treatment, expo- during exclude developed tions course of paint injury); sure to anticipation litigation, person solvent caused Turner v. and based on Co., (8th Equip. knowledge)). Iowa Fire 229 F.3d al *10 such, testimony superior should be rebutted The court Dr. Rubenstein to
As this allowed treating physi- by testify topics, although of the pro- cross-examination the above it cian, This no- preemptively not excluded.29 testifying him hibited from about some of his Miller, support in our decision in tion finds specific sources conclusions that the court ruling upheld superior that the speculative.” determined were “too The su- treating physician “would be forbidden perior Stirling testify court allowed as a testifying general appro- terms about the reconstructionist, general accident which al- care, priate standard of he would be [but] testify speed him lowed “about the each testify allowed to as to his own as to going impact, car was the difference in the what he observed.”30 cars, speeds damage relative done riding to the car which Marrón was ... superior logic in The court followed this impact and the effect of on the denying to strike Dr. forward Marron’s motion testimony. The сourt stated that movement of vehicle.” [Marron’s] White’s even if Dr. White’s use of the Waddell factors appeal, superi- On Marrón asserts that the theory “unsupported scientific or em- admitting Stirling’s or court erred in testimo- pirical research, White’s use of those factors ny, qualified expert, because he was not a his partially provides is a historical fact that investigation of the accident and of his basis perform basis for not to sur- the decision insufficient, opinions testimony were his does gery.” a treating We now hold that when Daubert, satisfy testimony not his did not physician regarding testifies a course of fact, probative assist the trier of and the treatment, testimony physician’s need not outweighed by value of his subjected analysis. to a Daubert We prejudicial Similarly, effects. Marrón claims therefore hold that the- court cor- that the court should have excluded rectly apply refused to Daubert to exclude Dr. Rubenstein’s because he was testimony. Dr. White’s qualified
not as an in this action, Superior opinions speculative were C. Court Was Not Re- and did quired Testimony Exclude the certainty, To meet the standards of medical Stirling James or Dr. Rubenstein. opinions satisfy and his did not the Daubert adopted standard Alaska. None of Mar- sought to introduce ron’s claims has merit. Stirling from James as an “accident recon- expert,” struction Marron’s testimo- rebut ny suggesting the accident involved forceful Stirling and Dr. Rubenstein were car, impact likely accompany- on her and the properly qualified experts.
ing inference that the accident caused her court did not abuse injuries. sought Stromstad also to introduce in qualifying Stirling its discretion expert testimony from Dr. Rubenstein that Rubenstein as witnesses. Trial (1) рroper Marrón was not a candidate for judges have wide discretion to determine (2) objective surgery; there was no basis for qualify experts.31 whether to witnesses as As (3) pain complaints; complaints Marron’s her earlier, explained admissibility our “liberal and treatment were caused other factors expert testimony32 any standard” for allows behavior, “drug seeking secondary gain like person specialized knowledge with to serve psychological some sort histrionic and/or (4) witness, as an long so as that knowl makeup,” and a rear-end accident at less relevant, edge per help in that it can than five miles hour could not have the trier injury. caused Marron’s Marrón moved of fact understand evidence determine experts’ testimony. specific limine exclude both training facts issue. No or formal Baxter, (Alaska Id. 31. Ferrell v. 484 P.2d 1971). Phillips, 30. Miller ex rel. Miller v. 959 P.2d Lamb, Heating 32. John’s Serv. v. (Alaska 1998). (Alaska 2002).
1003
ics,
neurologist
as a
Dr. Rubenstein testified
required.33
education is
“expert
eliciting objective
that he was
in
an
Stirling
unquali-
argues that
findings
neurological examination,”
via the
“does
expert
fied to
an
witness because he
“expert
recommending
an
in
alternative
degree.
has no
a Bachelor’s
He
have
of
forms
treatment.” Dr. Rubenstein also
engineering.
in
is not
degree
any
of
kind
He
performed
Marrón,
a five-hour exam on
ex-
Stirling’s
training
formal
is
a biomechanic.”
plained
performed by
the procedures
Dr.
reconstruction,
in accident
limited to courses
Uppal, and correlated Marron’s MRI results
that this
but the record indicates
coursework
his own
with
examination. Dr. Rubenstein’s
highly specialized.
was both extensive and
testimony
certainly helpful
thus
to the
profes-
of
Stirling is also a member
several
jury in making a more informed evaluation of
societies,
sional
is certified
this state as
the evidence.
reconstruction,
in
police instructor
accident
in
working
his field since the
has been
apply
Stirling
2. Daubert did not
estimation,
By Stirling’s
late
he has
1970’s.
or Dr. Rubenstein.
4,500
investigated over
acci-
assisted in or
earlier,35 we
adopted
court was thus within
As noted
dents. The
Daubert in
Daubert
holding
requires
that whatever the
State v. Coon.36
its discretion
preliminary
the trial
Stirling’s expertise
judge
to make
deter
limitations of
determin-
“
accident,
reasoning
mination
or
ing
“it
a more
‘the
methodolo
the force of
is
gy
[expert] testimony is
underlying
than could be made
scienti
informed evaluation
fically
properly
applied
valid and ...
can be
looking at the same evidence without
”37
words,
In
expert.”
an
to the facts in issue.’
other
at
the assistance of
This is funda-
Rule
its most basic level Daubert
mentally all that Alaska
of Evidence
contains two
requirements
essential
for the
requires.
admission
expert testimony:
it must
scientific
be reli
argues
neurologist,
that as a
reviewing
able and it
In
must be relevant.38
quali
not have
Rubenstein should
been
decisions,
trial court Daubert
we have
witness,
fied as
because he is not a
adopted the
of discretion standard
abuse
specialist,
surgeon,
psychiatrist
biomechanics
courts,
light
used
federal
Daubert’s
yet
psychologist,
or
his
touched on goal
allowing
“greater
trial courts
flexibili
expertise.
“spe
those
But we have
areas of
ty
admissibility of
determining
cifically
reading of
rejected a
Evidence Rule
testimony.”39
require expertise
precisely
‘in
702 that would
case,
expert proposes
this
court ex
upon
the area
”34
Despite
pressed
misgivings
about
rеlia
comment.’
limited knowl
serious
bility
Stirling’s specific
or
methods and con-
edge
surgery, psychology,
biomechan-
”
properly
applied to the facts in issue.'
33.
Id. at 1039.
can be
Daubert,
Coon,
(quoting
Under federal
the manner
which like other
by
we are not bound
Evidence,
the trial court admitted the
of Federal Rules of
and federal deci
Stirling
probably
interpreting
and Dr. Rubenstein was
govern
sions
federal rules do not
apply
erroneous. Daubert
itself does not
state court decisions based on state rules.46
challenged
case.”)
40. The court did limit Dr. Rubenstein’s
(emphasis
evidence in their
respect: Considering
Co.,
expertise
original);
in one
Pipeline
his lack of
Nelson v. Tennessee Gas
biomechanics,
244,
(6th Cir.2001)
(noting
court refused to allow Dr.
243 F.3d
250
requires
judge
Rubenstein to
as to "whether an
any
accident
Daubert
trial
to "ensure that
particular speed
type
at a
could cause a certain
and all
...
scientific
evidence admitted is not
relevant,
damage.”
reliable.”).
but
Daubert,
590,
have, however,
41.
This decision rejection degree certainty” of Kumho offer reasonable of medical Tire. We wholesale Tire’s clarification of no on records and Kumho based Marron’s medical MRI per- proper procedure and standards results. analysis of testi- forming a Dauberb scientific notes, Although, Dr. as Ruben- adopt not to Kumho mony. decision Our ignorance to several stein admitted details Dauberb is to the to limit limited Tire and history treatment, Marron’s medical expert us: the admission of situation beforе nothing in language of Maddocks indi- per- on accrued wisdom and based every know cates that a medical must Accordingly, experience. hold that sonal we factual detail of a case before he can admitting not err in court did probability. to a Even reasonable where Stirling and Dr. Ru- specific to a medical is uncertain as analysis. a Dauberb benstein without fact, necessarily is not overall conclusion speculative.83 Dr. Rubenstein testified at tri- opinions Dr. Rubenstein’s were al traumatic disc herniation is “extraor- they overly speculative not dinarily fracture unusual” without the standards of medical cer- met bony bodies, and that MRI vertebral films tainty. “certainly indicated there no evi- claims that Marrón also damage dence” of disc herniation or other granted court have her motion in should Marron’s Dr. “vertebral bodies.” Ruben- to exclude Rubenstein’s limine upon language stein’s and the evidence which speculative opinions “his are and do because easily it was based satisfied Maddocks certainty.” meet the standards medical certainty. standard of medical specific several facts related Marrón recites history and treatment of her medical did not abuse apparently Dr. Rubenstein was un admitting discretion Stir- deposition: time of his whether aware testimony. ling’s pain prior Marrón had suffered to the acci Stirling’s claims that Marrón also Stromstad, “when dent with the last time *16 accident, “investigation” and thus the prior of her to his examination she had taken insufficient; opinions, basis for was that his medication,” any pain the prescription Stirling’s testimony not assist the trier “[did] length pre half-life or of effectiveness of her fact”; probative that the value of rejeсt drugs. argument scription We the Stirling’s testimony outweighed by was its have that Dr. Rubenstein’s should prejudicial remaining effects. All of these it precluded speculative. been because was essentially claims for this court call to find Bennett,80 v. we stated that a Maddocks that the court abused sound dis expert’s must be within a medical in admitting cretion evidence. We decline to certainty” equiva- “reasonable medical or the so. do probability” medical lent “reasonable reconstructionists, “rea- Accident admissible.81 Maddocks indicates that and James Stirling previously is the in probability” particular, sonable determined have been expert’s expert’s confidence in the testi- allowed to in own similar cases.84 That the mony.82 experts Dr. that the Rubenstein himself stated of such assists trier of vehicles, "freely whether was arrest and he had no the or Marron’s car admitted data on when, moving stopped it was opinion,” struck. which to base an his conclusion that surgery-related spec- cardiac was arrest was not 1969). (Alaska 456 P.2d ulative; based on conclusion was statistical un- and fact that likelihood of cardiac arrest known Id. 457-58. potential mainly surgery-related). causes were 82. Id. at 458. 84. See, Co., e.g., Sirotiak v. H.C. Price See, Brundin, e.g., Co. INA Ins. v. Life (Alaska 1988). (Alaska 1975) (though P.2d medical expert speculated as to exact of cardiac cause Although jury might not testimony, fact is self-evident. had introduced Stirling’s investigation, that court reversed the have found verdict and remanded for insufficient, Stromstad asserts that Davis opinions, it a new trial.88 the basis of ease, responsibility expose inapplicable these was Marron’s to this because he intro through cross-examination and weaknesses twо agree. duced witnesses. We presentation countervailing expert Moreover, tes- adopt rigid ap we decline to timony. Accordingly, supe- we find that the proach represented by that case. not in
rior court did abuse its discretion any jurisdiction areWe unaware of other admitting Stirling’s testimony. adopted which has a rule that collision evi- per se inadmissible without dence is Superior Did D. Court Not Abuse testimony,89 and we decline to do so. The Admitting in Its Discretion Photo- properly trial court has the discretion to graphic Appraisal and Insurance weigh prejudicial probative value of Damage Evidence of the to Mar- photographs and other evidence of the sever- ron’s Vehicle. ity of an accident. showing Evidence Mar- that Marrón claims undamaged ron’s vehicle was proba- can be should have allowed Stromstad to tive of the force with which the accident photographs ap introduce insurance occurred, and the likelihood that it caused (or praisal indicating damage lack Thus, serious harm to Marrón. the court did damage) to car. Marron’s Marrón asserts admitting not abuse its discretion in this any probative that value of this evidence was evidence. outweighed by prejudice. the risk of suggests that this evidence would have led Superior E. The Court Did Not Abuse to believe the accident was so minor Limiting Its Discretion in Cross- injuries. it could not have caused her Dr. Examination of Rubenstein and evidence, responds this Excluding Reports of His Previous Stirling’s tandem with accident-reconstruc Examinees. testimony, tion the low shows force impact. that, Marrón next asserts as even Davis principally suming
Marron relies on Rubenstein’s Maute,85 admitted, quite properly whose essential facts are simi court abused lar limiting to this case: The defendant’s conceded its discretion her cross-examina negligence alleged impact led to an minor tion of Dr. Rubenstein medical examina plaintiff allegedly injury. reports pre sustained tion that Dr. had pared issue was the extent to which the earlier cases. Marrón asserts also *17 plaintiffs injuries. accident caused the The that the court abused its discretion photographs by refusing reports defendant had introduced show to admit those same into ing “light damage” plaintiffs reports to the car.86 evidence. Marrón offered these “to Supreme against Court of Delaware held that Dr. plaintiffs show Rubenstein’s bias support competent expert industry.” without the tes insurance towards the defense timony, party generally may Marrón, According striking similarity not claim a to reports “correlation between the extent of the dam Dr. between Rubenstein’s reveals age invalidating to automobiles in an accident and the “Dr. skill' in 'claim Rubenstein’s ants,” occupants’ personal injuries,” extent of the and “tends to show'that Dr. Ruben- by implication.87 even Since the defendant stein is hired because the insurance defense (Del.2001). 89. See, e.g., Lynch, Md.App. A.2d Mason v. 151 (2003) (holding A.2d 1284 - 85 that trial low-speed impact 86. Id. at 38. court in case acted its within admitting photographic discretion in evidence expert testimony); Spedick Murphy, 87. Id. without N.J.Super. (App.Div. 630 A.2d 38, 40, 1993) (same). 88. Id. at specific or didn’t use or report tests that he used what his will industry already knows says might he where he circumstances say.” test, you impeach can or would not use However, primari- Marrón focused at trial in those by showing that he used them him admitting the for ly a different basis on past, you can’t in the but circumstances reports would that the reports. asserted She histories with bring in the three other case the thor- regarding “impeach Dr. Rubenstein the similar conclusion. of Teva examination Mar- oughness of his Okay. MS. POWELL: reports explained that ron.” Marrón Anything further? THE performed much COURT: Dr. Rubenstein show that on the comprehensive examinations more No, Honor. Your MR. BURKE: including a set of subjects reports, No. MS. POWELL: only on three administered specific tests presenta- was the extent of Marron’s This Accordingly, the prior plaintiffs. reports. earlier tion on the relevance of the leeway “a fair amount of gave Marrón appeal that Dr. Ruben- points Marrón out on what tests he impeach Rubenstein] [Dr. conclu- language identical his stein used ... he didn’t use and what tests used reports in these sions and recommendations jury that his evalua- convince the somehow simply “par- that he and Marron’s and tion is less credible.” report conclusions from to re- rot[ed]” theory briefly a second presented argument not made to port. But this reports admissibility of Dr. Rubenstein’s court, did not narrow and Marrón trial argued that be- prior examinations. She language by pointing specific request her opin- the same Dr. offered cause reports sought to intro- from the that she plaintiffs, despite the prior three ion for the duce. they constella- possibility that had “different explain superior court did not its rea- reports pro- were symptoms],” the tions [of of Dr. limiting Marron’s examination sons of Dr. Rubenstein’s bias: bative suggests quite rea- Rubenstein. Stromstad Okay. the conclusions And MS. POWELL: sonably that the court’s decision was based exams medical [defense on each of That rule on Alaska Rule of Evidence 403. were identi- Rubenstein] conducted evidence, even if allows a court to exclude cal. relevant, outweighed probative “if value is any That I don’t see rea- THE COURT: danger of ... confusion of the issues Because now you bring in. son for delay [or] ... or considerations undue mean, to, I who knows going we’re to have admits that waste of time.” herself are[,] people[,] I why or the other three “[s]ubject always cross-examination is to the mean, patients are three different those judge preclude broad discretion of a trial problems. with different constellations unduly harassing interroga- repetitive and result. With the same MS. POWELL: tion.” maybe Maybe result THE COURT: —the that Marrón mounted an The record shows the same. cross-examination of Dr. Rubenstein effective MS. POWELL: Uh-hum. parameters. the court’s The cross- within THE But that doesn’t necessari- COURT: Dr. Ru- revealed evidence that examination constellation of ly mean that the individual thoroughly exam- did in fact fail to benstein *18 symptoms are the same. Marrón; particular, Dr. ine Rubenstein Yeah, why I that —that’s POWELL: MS. aspects neglected he some of the admitted they are probative, believe it’s because fatigued. he was Mar- examination because three different con- people, three different fact also revealed the ron’s cross-examination same stellations and he has the litigation services are that Dr. Rubenstein’s including Actually four about all of them. predominantly on behalf of defendants. done [Marrón]. admitted that he had And Rubenstein $25,000 pre- his you compensation for going go to let received THE COURT: I’m not Mar- specific trial services on behalf Stromstad. into that. You can ask about the
1011
discretion,
substantial
abuse
ron was therefore able to adduce
wе must
“a
have
definite
tending to
the effective-
error,
evidence
dimmish
and firm
of an
conviction”
based on the
testimony.
record,
ness of Dr. Rubenstein’s
entire
in a light
viewed
most favor-
able to the non-movant.93
is
highly
This
a
not
superior
The
court thus did
abuse its
review,
deferential standard of
and we have
balancing test in-
applying
discretion in
expressed great reluctance to interfere with
herent in
403 to limit
Rule
cross-examination
superior
a
deny
court’s decision
new
reports
of Dr.
exclude
trial,94
exceptional
absent
circumstances.95
previous
from
eases
evidence.
Superior
F. The
Court
Not Abuse
Did
superior
properly
1. The
court
denied
Denying
Its Discretion in
Marron’s
request
Marron’s
to introduce evi-
Motion for New Trial.
dence of Stromstad’s
insurance
trial,
Following
Marrón moved for a new
coverage
response
open-
to his
grounds.
superior
trial on various
The
court
ing statement.
appeals.
denied the motion and Marrón
statement,
opening
In his
Strom-
argues
Marrón
she
receive a new
should
stad’s counsel
told
that this case was
trial because the
court denied Mar-
about “an unusual extreme overreaetion that
request
ron’s
to introduce evidence of Strom-
Mr.
responsi
Stromstad should not be held
coverage,
supe-
stad’s insurance
because the
pay
ble for
erroneously
and should not have to
for.”
rior court
admitted
Rubenstein,
Marrón asserts that this
“improperly
of Dr.
remark
because
closing
implied
argument
untruthfully
Stromstad’s
unin
[he]
violated
protective
court’s
order.90
sured
personally responsible
The
and would be
any
starting point
inquiry
request
any
into
judgment.”
Accordingly,
trial
for a new trial is Alaska Rule of Civil Proce-
requested
alleged
to “cure” this
im
61,
dure
prоvides:
which
propriety
introducing
evidence
Strom-
No
coverage.
error in either the admission or the
stad’s insurance
exclusion of evidence and no error or de-
allow
refused to
her to
do so.
any ruling
fect in
or
in anything
trial,
order or
subsequently moved for a new
based
by any
done or
omitted
the court
of partly on the court’s
admit
refusal to
her
parties
ground
granting
is
new evidence of Stromstad’s insurance. Marrón
trial ...
refusal
such
unless
to take
action
appeals the
refusal
court’s
to admit the above
appears to the court
with
inconsistent
sub-
insurance evidence as well
refusal
as its
justice.
every stage
stantial
The court at
grant her a new trial on this basis. Because
disregard any
proceeding
must
er-
appeal
points
require
analy
both
on
similar
proceeding
ror or
in the
defect
does
sis,
together.
we address them
rights
not affect the substantial
parties.
generally
Trial courts should
ex
parties’
coverage,
clude
party
evidence of
insurance
requesting
new trial
prevent
has the
so as to
such
proving
burden
both error and
information
dis
above,92
prejudice.91
tracting
prejudicing
Improper
jury.
As noted
a trial court’s
grant
of a
or denial
new trial
reviewed for
admission of
can
insurance evidence
consti
abuse of discretion. Before we will find an
tute an
discretion
grounds
abuse of
for a
Co., Inc.,
have
Because we
determined that the admis-
93. Kava v.
Am. Honda Motor
P.3d
(Alaska 2002);
French,
proper
Trobough
sion of Dr.
Rubenstein's
(see
XV.D),
supra
(Alaska 1990).
Part
we need
address this
803 P.2d
portion
argument.
of Marron's
Servs.,
Smart,
94. Alaska Children's
Inc. v.
Zartman,
(Alaska
91. Poulin v.
(Alaska 1984).
P.2d
1975),
grounds
disavowed
other
State v.
Alex,
(Alaska 1982).
1013
based,
fees to
was
correct-
appeal improper summa-
award
Stromstad
right to
waives the
objects
party
only
arguments
ly,
Nothing
unless that
on Rule 68.104
in the text of
tion
Regardless
(or
matter)
of what Dr.
82,
trial.101
specifi-
them at
Rule 68
Rule
for that
to,
actually
and whether
testified
cally
prevailing party
a
states that
must
somehow violated
comment
Stromstad’s
may
itemize its fees
court
award
before
order,
object
Marrón did not
pre-trial
court’s
68(b) simply
that a
them. Rule
states
settle-
comment at
purportedly
to the
inadmissible
pay
“shall
actual
ment offeree
reasonable
during
closing argu-
any point
Stromstad’s
attorney’s
fees incurred
the offeror.” We
ment, during Marron’s own rebuttal summa-
specifically
have
defined “reasonable
never
tion,
or even after the final
or before
fees,”
attorney’s
process
actual
or the
Accordingly, the su-
instructions were read.
which a court should determine what were
Marrón a new
perior
properly
court
denied
sug-
But
“reasonable actual fees.”
we have
trial on this issue.
gested
prevailing party
that a
must itemize
any requested
oppo-
his or her
fees where
Attorney’s Fees Must
G. Stromstad’s
request
specific cognizable
nent has made “a
Be Itemized.
argues
itemization.”105 Marrón
that be-
superior
Marron claims
listing
cause her demand for
“detailed
attorney’s
awarding
court erred in
Stromstad
“Opposition
in her
to Motion for
services”
analyzing
without
the reasonableness
fees
Attorney’s
sufficiently specific and
Fees” was
Marrón,
According
this rea
fees.102
such
superior
not
cognizable, the"
court should
analysis required
court to
sonableness
have awarded Stromstad fees without itemi-
listing
of the services
examine
“detailed
agree.
zation.106 We
recovered,” which
sought to be
Stromstad
provide
response
to Marron’s
failed to
notes,
As
we have stated that
Stromstad
awarding
request.103 Marrón claims
attorney’s
fees
will reverse
award of
“[w]e
itemization,
without
based
fees to Stromstad
‘arbitrary, capricious,
if the award is
only on an estimate of what fee amount
unreasonable,
manifestly
or stems from im-
”107
reasonable, effectively
oppor
her an
denied
litigant
proper motive.’
But when a
fails
tunity to be heard on this issue.
fees,
provide
explanation
an itemized
trial court has no effective
means
attorney’s
pursuant
sought
fees
Stromstad
determining
re-
whether the amount
fees
Rules of
Procedure 68
to both Alaska
Civil
arbitrary
quested is
or unreasonable108
and 82. The
court’s decision to
Weiford,
ingly,
insists that his fee
was in
Ins. Co. v.
Stromstad
101. State Farm Mut. Auto.
award
1264,
(Alaska 1992).
self-servingly
litigant's
But a
fact reasonable.
831 P.2d
1269-70
statements,
conclusory
com-
such as Stromstad’s
II,
supra
court
"manifestly
102. As noted
Part
his fee award was
reason-
ments that
Marrón,”
seventy-five percent
of two-
"extremely generоus
awarded
able” and even
requested attorney's fees.
require-
thirds of his
do
suffice to fulfill this itemization
ment.
argues
a sev-
103. Stromstad
that he "submitted
itemizing
en-page
and neces-
affidavit
reasonable
argument before this court
106. While Marron’s
agree
sary attorney
We
with the
fees incurred.”
incorrectly
based on
and the
“generally de-
superior court that this affidavit
68,
82
Rule
we hold that
Rule
instead of
litigation
subject
events
scribed the
matter and
applies equally
requirement
to fee
itemization
fees,
generated
but
was no itemization
there
pursuant to
rule when the award is
awards
either
that led to the fees.”
of the hours of work
attorney's
Mar-
actual”
fees.
for "reasonable
light
the fact that
ron’s mistake is excusable in
where,
here,
68(b) applies
party
104. Rule
82, both before the
Stromstad also relied on Rule
trial,
judgment prior
makes an offer of
appeal.
superior court and on
rejected,
judgment following
offer is
and then the
percent
to the
5
less favorable
trial "is
least
Co., 6 P.3d
Nichols v. State Farm Fire & Cas.
68(c) states that a
offeree than the offer.” Rule
Jones,
300,
(Alaska 2000) (quoting
Jones
305
may
party
not also
awarded fees under Rule
(Alaska 1996)).
925 P.2d
recover
Rule 82.
fees under
See,
(Alaska 2003)
similarly.
e.g.,
Reft,
courts have held
108. Federal
105. Koller v.
71 P.3d
U.S.,
Inc.,
Naporano
F.2d
(citing
Drilling,
& Metal Co. v.
Iron
Luedtke v. Nabors Alaska
statement,
(Fed.Cir.1987) (absent
(Alaska 1989)). Unsurpris-
itemized
*21
view,
and Kumho
the
court’s fee
In'the court’s
Daubert
we are unable to review
trial
rejected if
to
the
need to be
we wish
sustain
any
abuse of discretion. We
award
“[ujnder
because,
that,
superior
ruling
fed-
where the rule author-
court’s
therefore hold
law,
fees,
trial
may
a court
not
eral
the manner in which the
actual
izes. reasonable
party
Stirling
who
the
of
and Dr.
attorney’s fees to
has
admitted
award
fees,
erroneous,”1
probably
and
requested
his or her
when the
itemized
“admissibility
threatened under
party
requested
has
such itemiza-
its
would be
opposing
superior
provide
But the court fails to
Accordingly, we reverse the
Kumho Tire.”2
tion.
Stromstad,
engage
attorney’s
any support
prediction
to
for this
or to
court’s award of
fees
any case-specific
part of the case for further
in
discussion of what Dau-
remand this
and
actually
Kumho would
have re-
consideration.
bert and'
quired.
to
The court instead chooses
restrict
Kumho,
finding
and
Professor
Daubert
V. CONCLUSION
“especially
Saltzburg’s views on this issue
quoting
persuasive,”
approvingly
select-
apply
to
Daubert
to
Because we decline
expressed by
passages
arguments
ed
expert testimony, we AFFIRM
non-scientific
colleagues in
ami-
professor
the
and two
an
decision to allow the
court’s
they
in
cus brief
submitted
Kumho Tire.3
Stirling and Dr. Ruben-
of James
Because the
court did not
stein.
in
But while the amicus brief
Kumho
to
denying
its discretion in
the motion
abuse
by broadly questioning
utility
opened
Dr.
in-
compel production of
Rubenstein’s
extending
ex-
experience-based
Daubert
returns,
Dr.
refusing
come tax
in
strike
pertise,4
authors
their main
its
concentrated
testimony,
limiting
in
White’s
cross-examina-
arguments on the extreme view of Daubert
excluding
tion of
Rubenstein and
petitioners
advocated
in Kumho. The
denying
in
reports
previous patients,
petitioners
authors
amicus briefs
viewed
trial,
for a new
we AFFIRM the
the motion
arguing
categorically
ex-
Daubert
respects.
Be-
superior court
all of these
involving
tends its four-factor test to all cases
required
causе
to itemize his
witnesses,
including
expe-
all cases of
attorney’s
response
fees in
to Marron’s re-
expert testimony;
that its four-
rience-based
quest,
for a
we REMAND
re-determination
(including
requirement
test
of ob-
factor
attorney’s
fees.
verification)
jective
mandatory
is
and exclu-
sive;
experience-based expert
testi-
BRYNER,
Justice, concurring.
Chief
mony
presumed
must
inadmissible unless
proponent
prove compliance
can
with the
agree
opinion
I
in most
Although
with the
hearing.
test in a full Daubert
It is
Daubert
result,
disagree
I
and concur
respects
this extreme view of Daubert
Professor
its discussion of Daubert and Kumho
with
adamantly
Saltzburg
colleagues so
and his
Specifically,
Tire
Part IV.C.2.
challenged:
how Daubert and
seems
misunderstand
view,
my
apply
Kumho would
in this case.
But Daubert should not be extended
opinions
evidentiary rulings
require
can
the exclusion of all
draw-
court’s
applications
ing
any aspect
easily
as correct
of scientific or technical
be sustained
opinion’s categor-
knowledge that in some measure involves
Daubert and Kumho. The
subjective
experi-
judgment
the use of
based on an
ical refusal to extend these cases to
unnecessary,
expert’s experience.
expansion
Such
ence-based
overbroad,
be inconsistent with Rule
and unsound.
Daubert would
3. Id. at 1005 n.
1006-07. The amicus brief
“the court is unable
determine whether
hours,
any
expenses,
jointly by
professors:
fees and
are reasonable for
was filed
three law school
Imwinkelried,
item”).
Margaret
Berger;
individual
A.
Edward J.
Stephen
Saltzburg.
WL 739321
A.
See 1998
(U.S.).
Op.
at 1007.
Kumho,
at 2.
at 1004.
Amicus Brief
Id.
being
per-
four Daubert factors
treated as
acknowledgment
“experi-
explicit
702’s
non-exclusive.6 In the secоnd
missive and
expertise....
as a basis
ence”
discussion,
part of the
the brief addressed
reading
expansive
petitioners’
Nor is
clarify
procedures required
the need to
reality.
In our
ev
grounded
Daubert
Daubert,
emphasizing the decision should
lives,
assistance
we often obtain
eryday
*22
require
to
a full “Daubert
be construed
hear-
who,
past
of their
persons
because
only
with
ing”
if the court was confronted
knowledge
specialized
have
experience,
fundamentally
strong prima
evidence of
facie
conclusions
to reach reliable
and are able
methodology.7
flawed
experience. When such
on that
based
expert, the
appears in court as an
person
ap-
unanimously holding
In
that Daubert
whether,
in
pertinent question should be
expert testimony,
plies
experience-based
to
or her
past experience, his
light of such
Supreme
opinion
the United States
Court’s
of fact—-not
opinions can assist the trier
carefully
in Kumho
addressed the concerns
they
the
have been validated
whether
brief;
Saltzburg’s
in
raised
Professor
amicus
bearing on the
forth in Daubert
factors set
though ruling against
petition-
the result the
validity
application of the scientific
of an
favored,
favorably
most
ers
the Court
viewed
emphasized,
in
Daubert
the
method. As
specific points
if
all
that the amici
of the
flexible. No
quiry under Rule 702 must be
pressed.
feasible,
bright-line
cir
is
because the
test
repeatedly emphasized
Kumho
that
the
expert’s opin
an
under which
cumstances
no
Daubert test is
flexible one and draws
depend
reliable
on the
ion can be deemed
bright-line
requirements;
the
expertise
question,
in
specific field of
trial courts with
stressed that Daubert vests
dispute.[5]
particular issue in
on the
ignore
discretion to use or
its four-
broad
shows,
wording
the
As the underscored
analysis, depending on whether the
factor
not that
position
basic
amicus briefs
helpful
deciding
specific
it
in
court finds
apply
experience-
to
Daubert should never
Similarly,
at hand.8
the Court stressed
issue
testimony, but
that Daubert
based
four factors articulated in Daubert
control,
automatically
always
should not
exclusive,
mandatory nor
and can
are neither
exclude,
testimony.
such
disregarded
they
supplemented or
when
addition,
In
Kumho made it
are not useful.9
position,
amicus
keeping
In
with this
hearing
that a full Daubert
is needed
clear
most of its discussion to two
brief devoted
cases,
case-specific
only
exceptional
in
when
first section of dis-
practical points.
to
genuine
raises a
issue as
basic
cussion,
evidence
argued that Daubert should be
it
is,
reliability
“[expert]
when the
testi-
flexibly
of ease-
applied
through the exercise
—that
basis, data,
courts,
mony’s
principles,
factual
meth-
by-case
by trial
with the
discretion
See,
Kumho,
e.g.,
(emphasis
id. at *24:
at *2-3
add-
Amicus Brief
ed).
suggests
opponent
that if an
Common sense
single expert prepared
produced
has
not a
added)
See,
(inter-
e.g.,
(emphasis
at *18-19
id.
targeted
testify
omitted):
of the
footnotes
nal
flawed,
methodologically
court
is
the district
range
point
there is an enormous
Our
engage
required
in Rule
not be
experts
should
technical fields in which
scientific and
104(a) factfinding,
permitted to
personal experience
and should be
apply
and that
their own
case-specific
colleagues
assessing
outright....
deny
of their
the motion
facts,
subjective
reaching
con-
a somewhat
opponent does
a motion in
Where an
file
requires
trial court
clusion. Rule 702 still
limine,, supported by proper record materials
“specialized
determine that
the witness’
appear
demonstrating one or more flaws that
knowledge
But
will assist the trier of fact."
reliability
targeted
undermine
knowledge
experience-based
be au-
should not
testimony,
expert's
a district court should
then
tomatically
because it cannot be
inadmissible
dispatch
granting
equal
the motion
act with
objective
Eleventh
test. The
verified
proponent
forward[.]
comes
unless
ruling
testimo-
Circuit was correct in
that such
Daubert,”
scope
ny
at least
"falls outside the
149-50,
Kumho,
S.Ct. 1167.
526 U.S. at
admissibility should not be
in the sense that its
gauged solely
men-
in terms
four factors
S.Ct. 1167.
9. Id.
tioned in Daubert.
oughly
disciplines. To the extent that
ods,
called sufficient-
vetted
application are
or their
beyond
they proposed
on matters
ly
question.”10
into
particular expertise, the
their
core, then,
Kumho views Daubert
At its
scope
their testi-
appropriately limited the
flexible,
ap-
fact-specific, and non-exclusive
mony.
although
purported to
And
restricts,
invites,
than
tri-
proach that
rather
methodologies,
sup-
challenge their basic
her
al court discretion:
pleadings suggested
their
porting
conclusion,
view,
can
in our
is that we
might
ap-
reflect incorrect
opinions at most
out,
in,
nor rule
for all cases
neither rule
plications
accepted principles
reliable
applicability
all time the
and for
specialized knowledge.
superi-
fields of
Daubert,
nor
we
mentioned
can
factors
correctly recognized
or court
this kind of
categorized
of casеs
now do so
subsets
variety
*23
alleged inaccuracy
garden
im-
as
by
of evi
by category kind
cross-examination,
peachment for
so the -rec-
upon
par
depends
Too much
the
dence.
range of
suggests
ord
no abuse of the broad
particular
circumstances of the
case
ticular
granted by
I
atissue.[11]
trial court discretion
Kumho.
on these narrower
dispose
would
of this case
reading
and individualized
This flexible
grounds.14
every practical con
Daubert answers almost
amicus
Of
cern raised in the Kumho
brief.
Instead, today’s opinion goes
way
of its
out
course,
notes,
today’s opinion
Kumho did
as
to disclaim Kumho’s useful elaboration of
Daubert; some com
not end the debate over
professing to constrain its
Daubert. While
continue to
mentators and a handful of cases
us,”
opin-
ruling “to the situation before
opinion
criticize Daubert and Kumho.12 The
expansively
ion
describes “the situation”
conclusory
quotes
passages from these critics
involving
encompassing all cases
“the admis-
but fails to examine their conclusions
expert testimony based on accrued
sion
merit;
accuracy and
nor does it consider the
personal experience.”15
This
wisdom
contrary
advanced
other authorities
views
easily
expertise
category could
cover all
ex-
concluding
simply mis
that these criticisms
cept
pure theoretical science.
breadth
understand Daubert and Kumho.13
ruling
especially striking
of this
is
because
hold-
Given the flexible nature of Kumho’s
opinion
support
cites to
the main source
ques-
ing, a
answer to the Daubert
sufficient
categorical
on Daubert(cid:127)—
such
restriction
tions raised here is
repeatedly
the Kumho
amicus
brief —
given
properly applied the broad discretion
against at-
warned —as does Kumho itself —
require objec-
declining
to it Kumho in
tempts
categorical lines in this
to draw
diffi-
experience-based
verification of the
testi-
tive
cult area of the law.
mony
by Stirling and Dr. Rubenstein.
offered
view,
rejec-
my
opinion’s bright-line
experience in
Both witnesses had abundant
needless,
widely
long-recognized,
practiced, and thor-
tion of Daubert and Kumho
mini-trials,
149,
exploited by litigants, leading to
10. Id. at
I concur in the result reached thus issue de-
opinion on the but Daubert/Kumho join unnecessary
cline to in its rationale. I aspects opinion.
agree all other with
In the Matter of the ADOPTION OF J., J., J., and Morris
SARA Joel
Minor Children. S-11301,
Nos. S-11312.
Supreme Court of Alaska.
Nov. that, opinion suggests applied expe- get right they approve experts quali- 16. The as it when as testimony, gatekeeping riencе-based Daubert's capable assisting jury. Regard- fied and approach is needless because other evidence expert's testimony purports less of whether the rules, including dealing rules with admission of experience training, draw on or scientific how testimony, non-expert protect are sufficient to go deciding can a court about if the against expert testimony. Op. inadmissible fact, actually can assist the trier of Alaska Evi- witnesses, 1007-08. But in contrast to fact ex- probative dence Rule or if its value will perts testify any knowledge without first-hand outweigh prejudicial impact, its Alaska Evidence so, specific they satisfy case. To do must expert’s opinion Rule if the basis of the falls court, matter, they trial as a are threshold experience outside the common of the court and "qualified” give expert opinions and that the explained cannot be understanda- expertise they offer will "assist the trier of fact.” Contraiy ble terms? to the Kumho amicus 702(a). Alaska R. Evid. Because the court "general suggestions, accep- brief’s 703's Rule accepts experts according screens and to these hardly satisfactory tance” test itself is stan- allowing opin- criteria before them to state their situations, any dard in these since it' enables ions, jurors naturally experts special see wit- self-proclaimed experts circle of to establish its approv- nesses who the court's seal of with reliability by self-referentially declaring own al, qualifications ability both as to their and their expertise type reasonably upon "of relied unique to be of assistance. These attributes by experts particular Op. at 1007 against treating expert lay field.” counsel witnesses 703). put premium ensuring (quoting alike that courts Alaska R. Evid.