Nathaniel A. TODESCHI, Appellant and Cross-Appellee, v. SUMITOMO METAL MINING POGO, LLC, Appellee and Cross-Appellant.
Supreme Court No. S-15542, Supreme Court No. S-15571
Supreme Court of Alaska.
April 28, 2017
Sean Halloran, Littler Mendelson, Anchorage, for Appellee/Cross-Appellant.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices.
OPINION
MAASSEN, Justice.
I. INTRODUCTION
A mine supervisor suffered back injuries over the course of his career and required several surgeries. His employer terminated his employment following his request for an accommodation and his renewed pursuit of a three-year-old workers’ compensation claim. The supervisor sued, alleging breach of the covenant of good faith and fair dealing and unlawful discrimination based both on a disability and on his assertion of the workers’ compensation claim. The employer defended on grounds that the supervisor could no longer perform the essential functions of his job and had declined an offered accommodation; it also asserted that it was not liable for the workers’ compensation claim. A jury returned a special verdict finding the employer liable for breach of the covenant of good faith and fair dealing and awarding the supervisor $215,000 in past lost income, but finding in the employer‘s favor on the supervisor‘s other claims.
The supervisor appeals. He argues that the superior court erred when it (1) denied his motion for a directed verdict on whether he has a disability; (2) denied his motion for judgment notwithstanding the verdict due to an inconsistency between the jury‘s decisions of two of his claims; (3) declined to give a burden-shifting or adverse inference instruction based on alleged spoliation of evidence; and (4) raised a statute of limitations defense by way of a jury instruction. The employer cross-appeals, arguing that the superior court erred in excluding one of its witnesses.
Seeing no error, we affirm. Because we resolve the appeal in the employer‘s favor, we do not reach the employer‘s cross-appeal.
II. FACTS AND PROCEEDINGS
A. Facts
Nathaniel Todeschi began work at Pogo Mine in November 2005. The mine was operated by Teck-Pogo, Inc., which later merged
Todeschi was promoted to a supervisor position after less than a year at the mine. Sumitomo does not dispute that his work performance was at least acceptable.
As a supervisor, Todeschi was responsible for the safety and production targets of up to ten employees. He directed their activities, provided support, and ensured their safety and efficiency. This required that he spend a large part of his workday underground. According to Sumitomo‘s job description, underground mine supervisors could travel up to 30 miles in the mine during one 13-hour shift. For these purposes Sumitomo provided both trucks and Kubota tractors; the tractors had minimal suspension, but Sumitomo claimed it could neither completely eliminate their use nor significantly improve their suspension.
Todeschi had a history of job-related back injuries, which he testified were aggravated whenever he had to drive a tractor. His first back surgery was before he worked at Pogo Mine. He had another surgery in 2008, but it was ineffective; according to Todeschi, he had a herniated disk that broke into fragments. He testified that in order to continue working without pain he consumed so many painkillers that his doctor thought he had cirrhosis of the liver. He had a back fusion in May 2009 to address the problem.
When Todeschi returned to work at the mine later that year, Paul Brunelle, a Pogo general foreman, assigned him to a special project that kept him at a desk. When the special project was completed Todeschi resumed his duties as an underground supervisor. His physician had given him a full medical release with no restrictions, but, according to Todeschi, the doctor had not anticipated that he would be required to drive a tractor again.
Todeschi soon sent an email to Chad Omaha, another Pogo general foreman, stating that he would “not operate a Kubota tractor for any reason” because of the risk of further injury to his back. He said Sumitomo was “asking [him] to choose between [his] job and [his] ability to walk and have a normal life” and he had “made all the compromises [he was] going to make on the issue.” He asked for other “suitable reliable transportation so that [he might] continue in [his] current capacity as a shift supervisor” and concluded that he would “give it [until] Monday to see if suitable arrangements are made[;] if not you do as you choose.” Todeschi apparently continued working his shifts for awhile, using a truck. But in the meantime, Sumitomo supervisors and the company‘s attorney, Sean Halloran, began discussing by email how Todeschi‘s injury might be accommodated and whether he should be terminated instead.
A few weeks after Todeschi‘s email ultimatum, Sumitomo sent him to an independent medical exam with Dr. John Michael James. Sumitomo‘s human resources manager, Thomas Brokaw, provided Dr. James with a newly drafted job description that included a requirement that mine supervisors be able to “replace water pumps (lifting 60lbs to 250lbs depending on the pump being replaced) on their own.” Dr. James found the lifting requirement to be unreasonable for even a healthy employee; he concluded that Todeschi could lift items up to 50 pounds occasionally, should not lift anything more than 40 pounds repetitively, and should be provided a truck as an accommodation.
Having received Dr. James‘s evaluation, Sumitomo terminated Todeschi‘s employment effective that day on grounds that he “could not perform his regular job due to strict lifting limitations and other restrictions as indicated by [Dr. James].” Sumitomo claims its motivation for firing Todeschi was his inability to drive a tractor, though the termination notice did not say so. Todeschi contends, on the other hand, that Sumitomo fired him because he requested the accommodation and because he had sought to reopen a workers’ compensation claim he originally filed after his 2007 workplace injury.
Todeschi testified that he abandoned the 2007 workers’ compensation claim after Kim Witt, the Pogo human resources manager at the time, told him he would lose his job if he
Todeschi filed his complaint against Sumitomo in February 2011. He alleged claims for (1) discrimination on the basis of a disability under
B. Proceedings
1. Todeschi‘s motion for burden-shifting or an adverse inference instruction based on Sumitomo‘s alleged spoliation of evidence
Thomas Brokaw, Sumitomo‘s human resources manager at the time of Todeschi‘s termination, died before trial and without being deposed. Sumitomo substituted its attorney Halloran on its witness list. It explained that Halloran had discussed Todeschi‘s termination with Brokaw and could testify about those discussions, and it waived the attorney-client privilege to that extent.
Todeschi opposed Halloran‘s designation as a witness as untimely, requesting in the alternative that Sumitomo produce all of Halloran‘s written and electronic legal advice for this case and any similar cases. The superior court allowed Halloran‘s testimony but ordered that Sumitomo produce his billing and phone records for the matter, as well as any related communications or memoranda. The court restricted the required production to the period from a month before Todeschi‘s email ultimatum to a month after his termination, but it noted that any records outside that scope could be reviewed in camera, and it required Sumitomo to create a privilege log.
Halloran turned over few emails and phone records and no billing records. He testified that he never billed Sumitomo during 2010 and that he had destroyed any notes when he changed law firms; that his former firm inadvertently destroyed all his emails; and that some of his phone calls used a “voice over internet protocol” (VOIP) system that did not create a record of the call. Emails between Halloran and Brokaw were produced by Sumitomo, but the collection was not complete; Halloran testified that “Brokaw kept the emails that he believed mattered to anything, and he deleted emails that he thought were unimportant.”
Todeschi moved for a shifting of the burden of proof on his discrimination claims to Sumitomo, or in the alternative a jury instruction allowing an inference that any missing email, phone, and billing records of Halloran‘s would have supported his case. The superior court denied the motion, saying only, “I‘m not giving a presumption instruction. I don‘t think that you‘ve met the burden for that.”
2. Jury instruction arguably raising a statute of limitations defense
Todeschi also objected to a jury instruction, contending that it invited the jury to apply a statute of limitations defense that
You have heard testimony that Kim Witt engaged in certain conduct. Sumitomo cannot be held responsible for Witt‘s conduct before 2009. However, if you find that Witt engaged in certain conduct before 2009 you may (but need not) further find that it provides context for Sumitomo‘s actions or omissions in 2010.
Before trial Sumitomo had stipulated that “Teck-Pogo Inc. is the same entity as Sumitomo Metal Mining Pogo, LLC. Although the name and corporate form were changed when the company was sold a couple years ago, they are, in fact and law, one and the same entity. Thus, ... Kim Witt ... [was a] Sumitomo employee[ ].”
Todeschi argued that Instruction Number 12 effectively negated Sumitomo‘s stipulation of fact. He argued that the stipulation allowed him to causally connect Witt‘s actions in 2008 and his termination in 2010, but the instruction precluded that argument when it said that Sumitomo could not “be held responsible for Witt‘s conduct before 2009.” Sumitomo countered that the instruction only prevented the jury from finding it liable for Witt‘s alleged threat, and Todeschi had not asserted a claim based on the alleged threat itself; the claim Todeschi did bring involved his 2010 firing by Sumitomo, and the instruction specifically allowed Todeschi to use Witt‘s alleged threat as background to that event.
The court overruled Todeschi‘s objection and gave Jury Instruction 12.
3. Directed verdict
At the close of the evidence Todeschi moved for a directed verdict on the issue of whether he had a disability. He argued that Dr. James‘s evaluation conclusively showed he was restricted from a class of jobs and therefore had a physical disability, as defined by federal law, because he was substantially limited in the major life activity of working. The argument relied on federal regulations and the Equal Employment Opportunity Commission‘s interpretation of the Americans with Disability Act Amendments Act.4
Sumitomo countered by pointing to Todeschi‘s full medical release from his own doctor, differing from Dr. James‘s more guarded evaluation. Sumitomo also argued that the jury might not believe that Todeschi‘s claimed restrictions were disabilities: While a lifting restriction might prevent him from doing some jobs, the one cited in Dr. James‘s evaluation was a restriction any average person might have and did not prevent Todeschi from working at Pogo Mine. And no evidence suggested that an inability to drive a tractor could constitute a physical disability; even if it prevented Todeschi from being a mine supervisor, it did not necessarily bar him from an entire class of jobs, which is what the legal definition of “disability” required.
The superior court found Todeschi‘s argument that he had a disability “extremely strong” but denied his motion for directed verdict, concluding that whether he had a disability was a question of fact that the jury could reasonably answer either way.
4. Motion for judgment notwithstanding the verdict
The jury was asked to answer four questions about liability. It answered “no” to three of them: (1) Whether Sumitomo terminated Todeschi‘s employment “due to a disability in violation of [AS] 18.80.[220]“; (2) whether Sumitomo “fail[ed] to make a reasonable accommodation so that [Todeschi] could continue his employment“; and (3) whether “Todeschi‘s pursuit of workers’ compensation benefits” was “a substantial factor in Sumitomo‘s termination of his employment.” The jury answered “yes” to one liability question: Whether Sumitomo “breach[ed] the covenant of good faith and fair dealing when [it] terminated Todeschi‘s employment.” For his one successful claim the jury
Todeschi moved for a judgment notwithstanding the verdict, additur, or a new trial. In support of a judgment notwithstanding the verdict—the only aspect of the motion relevant to this appeal—Todeschi argued that he had conclusively proven his claim for discrimination based on disability and that the jury‘s special verdict was necessarily inconsistent; he argued that the jury could only have found a breach of the covenant of good faith and fair dealing on a view of the facts that also required it to find disability discrimination.
The superior court found no inconsistency in the jury verdict, however, and denied Todeschi‘s motion. This appeal followed.
III. STANDARDS OF REVIEW
We review the denial of a motion for judgment notwithstanding the verdict (JNOV) using the same standard we use when reviewing a directed verdict.5 “[B]ecause the sufficiency of the evidence to support a jury verdict is a question of law, our review [of motions for JNOV and directed verdict] is de novo.”6 When we review a trial court‘s decision on a motion for directed verdict, “we must decide ‘whether the evidence, when considered in the light most favorable to the nonmoving party, is such that reasonable persons could not differ in their judgment.‘”7 “[C]onflicting evidence is not to be weighed and witness credibility is not to be judged on appeal.”8 We scrutinize JNOV and
We review the superior court‘s decisions of discovery sanctions, such as spoliation remedies, for abuse of discretion.10 “The choice of a particular sanction for a discovery violation generally is a matter committed to the broad discretion of the trial court.”11 “We review a trial court‘s findings of fact underlying its discovery sanction determination for clear error and ‘will not declare a trial court‘s finding to be clearly erroneous unless, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made.‘”12 Whether there has been spoliation is a finding of fact.13
“‘Jury instructions involve questions of law to which we apply our independent judgment.’ ‘When reviewing a trial court‘s denial of a proposed instruction, our inquiry focuses upon whether the instructions given, when read as a whole, adequately inform the jury of the relevant law.‘”14 “An error in jury instructions is grounds for reversal only if it caused prejudice.”15 “In evaluating whether there has been prejudicial error with regard to jury instructions, we put ourselves in the position of the jurors and ‘determine whether the error probably affected their judgment.‘”16
IV. DISCUSSION
A. Viewing The Evidence In The Light Most Favorable To Sumitomo, A Reasonable Jury Could Have Found That Todeschi Did Not Have A Disability.
Alaska‘s human rights statutes proscribe certain employment practices, including “discriminat[ing] against a person in compensation or in a term, condition, or privilege of employment because of the person‘s... physical or mental disability.”17 “Physical or mental disability” is defined to mean “a physical or mental impairment that substantially limits one or more major life activities.”18 “Major life activities,” in turn, are defined as “functions such as caring for one‘s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”19 Todeschi argues that the trial court should have directed a verdict in his favor on whether he had a disability within the meaning of these statutes—a predicate to his disability discrimination claim—because the evidence at trial demonstrated conclusively that his lifting restrictions substantially limited him in the “major life activity” of working.
In support of this argument, Todeschi points to an example in the federal regulations implementing the Americans with Disabilities Act Amendments Act:
[I]f a person whose job requires heavy lifting develops a disability that prevents him or her from lifting more than fifty pounds and, consequently, from performing not only his or her existing job but also other jobs that would similarly require heavy lifting, that person would be substantially limited in working because he or she is substantially limited in performing the class of jobs that require heavy lifting.20
Todeschi argues that this example and his own situation “match[] perfectly” and that
But whether the example matches Todeschi‘s case depends on facts the jury could reasonably have found in Sumitomo‘s favor. First, Sumitomo presented evidence that the lifting requirement did not prevent Todeschi from performing his “existing job.” The job description given Dr. James for purposes of the independent medical exam—stating a job requirement of “lifting 60lbs to 250lbs depending on the pump being replaced“—was in Dr. James‘s opinion unreasonable, but Sumitomo contended that as reasonably interpreted it only described lifting with mechanical aids and that Todeschi never actually had to lift anything so heavy by himself in order to perform his job.
Second, the federal example requires the jury to find that Todeschi‘s inability to meet the lifting requirement barred him from a “class of jobs.” He points to the uncontested expert testimony of a vocational counselor that he could not work in several categories of jobs, but the jury could have chosen to assign no weight to that testimony. Rather, using their own experience or relying on evidence such as Dr. James‘s opinion that the lifting requirement was “fairly unreasonable for a[n] uninjured worker,” jurors may have found that Todeschi was no more restricted than an average person. The jury may also have relied on Todeschi‘s full medical release with no restrictions that predated Dr. James‘s evaluation to conclude that Todeschi was not precluded from performing a “class of jobs.”
In short, although Todeschi offered evidence sufficient to support a conclusion that he was limited in the “major life activity” of working and therefore had a disability, the jury was not required to accept it as true in light of the conflicting evidence. We conclude that the superior court did not err when it denied Todeschi‘s motion for a directed verdict on the disability issue.
B. A Reasonable Jury Could Consistently Find That Sumitomo Breached The Covenant Of Good Faith And Fair Dealing But Did Not Discriminate Against Todeschi On The Basis Of A Disability.
Todeschi argues that because the jury found that Sumitomo breached the covenant of good faith and fair dealing, it could not consistently find that the company did not discriminate against him on the basis of a disability.22 Jury Instruction 26 informed the jury how to decide whether Sumitomo had breached the covenant:
The defendant violated the implied promise of good faith and fair dealing if you find that it is more likely true than not true that the defendant deprived the plaintiff of a benefit of the contract:
- by acting in bad faith; or
- by acting in a manner that a reasonable person would regard as unfair.
Todeschi argues that the only act the jury could reasonably have found to satisfy either requirement of this instruction is Sumitomo‘s submission of the job description to Dr. James suggesting that Todeschi was required to lift as much as 250 pounds as part of his job, “then using the failure to meet those lifting requirements as the basis for a termination.” Todeschi asserts that if the jury agreed the job description was unfair and that Sumitomo fired him because of his failure to meet its requirements, it must have believed that he was discriminated against because of a disability.
But the jury‘s verdicts can be harmonized. Instruction 26 allowed the jury to consider a broad landscape of actions and motivations in determining whether Sumitomo breached the covenant of good faith and fair dealing, requiring only a finding that the defendant, at some point, acted “in a manner that a reasonable person would regard as unfair.” Conversely, the instructions on disability discrimination required more—and more specific—findings. Instruction 15, defining a “disability discrimination claim under
Todeschi made arguments in the trial court that are consistent with this harmonization of the jury‘s verdicts. He successfully opposed a version of Instruction 26 that would have required a finding of discrimination as the basis for a breach of the covenant, arguing that “[a] breach of the covenant of good faith and fair dealing is not limited to discriminatory reasons for termination.” The court accordingly removed language from the instruction that would have prevented the jury from finding a breach of the covenant if Todeschi‘s termination was based on a “permissible, that is[,] a nondiscriminatory reason.” (Emphasis added.)
Thus, consistent with its instructions, the jury might have found that Todeschi did not have a disability but that Sumitomo nonetheless acted unfairly during the process of terminating him. Todeschi‘s counsel argued repeatedly in closing that Sumitomo‘s managers knew that the job description was “rigged,” that its lifting requirements “were
Alternatively, the jury might have found that Todeschi did have a disability but that Sumitomo did not unlawfully discriminate against him on that basis but rather terminated him lawfully because he could not perform the essential functions of his job with or without reasonable accommodation. There was evidence from which the jury could reasonably conclude that driving a tractor was an essential function of the job of underground supervisor; there was also evidence that providing Todeschi with a truck instead—the specific accommodation he demanded—was not “feasible for [Sumitomo] under the circumstances,” as the jury instructions required.23 Steven Job, a mine superintendent, testified that “an integral part of what [they] do in the underground is driving tractors.” Todeschi conceded that he had been told driving a tractor was part of his job.24 According to Larry Davey, a Pogo general manager, the only way Sumitomo could ensure that Todeschi always had a truck available for his use would be “to replace the entire fleet of tractors with trucks,” which “was certainly not a viable option.” Davey testified that Sumitomo tested equipment to replace tractors “many times during the years while [he] was at Pogo” but “at no point could we arrive at a piece of equipment that had the reliability of tractors.” Paul Brunelle, a Pogo underground mine general foreman, testified that trucks broke down about 60 percent of the time when used underground. The jury was entitled to accept this evidence in deciding that Todeschi—if he had a disability—could not perform the essential functions of his job and that the accommodation of driving a truck instead of a tractor would either not allow him to perform those essential functions or would not be feasible for his employer under the circumstances.25
The jury‘s special verdicts can thus be read consistently. Even if they appeared to be inconsistent, “[w]e will not disturb a jury verdict if there is a theory which reconciles the apparent inconsistencies.”26 When viewing the evidence in the light most favorable to Sumitomo, we conclude that a reasonable jury could find a breach of the covenant of good faith and fair dealing and also find, consistently, that Todeschi did not prove the elements of a claim for discrimination based on disability. We therefore affirm the superior court‘s denial of Todeschi‘s motion for a judgment notwithstanding the verdict.
C. The Superior Court Did Not Abuse Its Discretion When It Denied Todeschi‘s Request For A Spoliation Remedy.
Todeschi moved in limine that the burden of proof on his discrimination claims be shifted to the defense or, alternatively, that the jury be given an adverse inference instruction based on Sumitomo‘s alleged spoliation of evidence, citing the absence of records—billings, phone records, and emails—memorializing the discussions between Sumitomo and Halloran, its attorney, at the time of Todeschi‘s termination. Todeschi argued that
The superior court did not decide Todeschi‘s motion until ruling on objections to proposed jury instructions. The court then denied the motion, saying only that Todeschi had not “met the burden for [a spoliation instruction].” We conclude this was not an abuse of discretion.
1. It was not an abuse of discretion to refuse to give a burden-shifting instruction.
We first addressed remedies for negligent spoliation in Sweet v. Sisters of Providence in Washington, in which we set out the steps that must precede the giving of a burden-shifting instruction.27 First, it is the plaintiff‘s burden to “establish to the satisfaction of the court that the absence of the records hinders his ability to establish a prima facie case.”28 This requires the plaintiff to demonstrate how “the absence of an adequate [record] sufficiently hinders [the] plaintiff‘s ability to proceed.”29 Second, “burden shifting should only occur when the essential records are missing through the negligence or fault of the adverse party.”30 “Negligence or fault” are concepts that depend on the existence of a duty to preserve the records.31
When the two elements of negligent spoliation are met, the party who might have benefitted from the missing evidence is entitled to a rebuttable presumption that the missing evidence would support its case.32 Though this presumption is rebuttable, “[i]t is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case.”33 We held in Sweet that “the trial court should have adopted a rebuttable presumption that [the defendant hospital] was medically negligent in treating [the plaintiff] and that this negligence legally caused [the plaintiff‘s] injuries” because the hospital failed to maintain its patient‘s medical records, some of which would likely have contained substantive information directly relevant to the plaintiff‘s claims: signed informed consent forms, nursing records from the day the plaintiff suffered a prolonged seizure allegedly resulting in brain damage, and “a contemporaneously
On the other hand, in another medical malpractice case, Zaverl v. Hanley, we found no error in the trial court‘s refusal to presume negligence when a hospital discharge summary was prepared 45 days after the patient‘s discharge.35 In contrast to the facts of Sweet, the record in Zaverl was not absent but delayed, and the plaintiff did not explain how the record would have been different had it been timely prepared or any other way in which his case was prejudiced.36
In Miller v. Phillips we affirmed the superior court‘s rejection of a burden-shifting instruction informing the jury that it must presume a nursing note was complete and accurate and that the health-care providers had the burden of proving they performed any procedures not described in the note.37 We found Sweet inapposite because it was “expressly based ... on two uncontroverted factors: the hospital‘s negligence in losing the records and the plaintiffs’ inability to establish a convincing prima facie case without them.”38 We explained that in Miller “there was no uncontroverted proof of lost or inadequate records[; t]o the contrary, the adequacy and completeness of the medical records was a hotly disputed factual issue.”39 We noted further that the “alleged deficiencies in the delivery-room records” did not “hinder the [plaintiffs] in presenting a prima facie case of malpractice,” but rather allowed them “to attack [the nurse‘s] trial testimony as inconsistent with her notes and therefore incredible.”40
In this case, although Todeschi asserted that some records were missing, he failed to demonstrate why their absence hindered his ability to establish a prima facie case. First, with regard to billing records, Halloran admitted he created some records of his time but destroyed them when he left his former firm in March 2011 (about the time Todeschi filed this lawsuit); he testified that he never billed Sumitomo for the work he did for it in 2010 because “it wasn‘t an amount of money that was worth putting any further effort into, and so [he] didn‘t have the bill go out.” Todeschi argues that the missing billing records would “provide insight” and that their absence is “obviously prejudic[ial],” but he does not explain how or why.
As for phone records, Halloran‘s land-line calls were reflected in his former firm‘s records but some calls he testified about were not. Thus Todeschi was given records that showed calls between Halloran and Brokaw, and their length, on the day Todeschi was sent for his medical evaluation with Dr. James, but he had no records to confirm Halloran‘s testimony that he made two calls to Brokaw on May 11, 2010, the day Todeschi was fired. But Todeschi again does not plausibly explain how his case would be strengthened by records that showed simply when calls were made.
Finally, as for emails, Sumitomo produced a number of them between Brokaw and Halloran, including a lengthy and substantive one Todeschi relied on heavily in post-trial briefing as definitive proof of Sumitomo‘s unlawful intent.41 But again—especially given the evidence he had of Sumitomo‘s reasoning process—Todeschi does not explain why his lack of additional emails “sufficiently hin-der[ed] [his] ability to proceed” in establishing a prima facie case.42
We conclude that the facts of this case are closer to those in Miller and Zaverl than to those in Sweet. Although some of Halloran‘s records are missing, Todeschi does not demonstrate a plausible theory of how their absence “sufficiently hinder[ed] [his] ability to proceed” in establishing a prima facie case.43 We review a superior court‘s decision whether to grant sanctions for alleged spoliation, including whether to give a presumption instruction, for abuse of discretion,44 and we see no abuse of discretion here.
Because we conclude that Todeschi‘s claim fails to satisfy the first element of a spoliation claim—that loss of the evidence sufficiently hindered his ability to establish a prima facie case—we do not need to decide whether he proved the second element, “negligence or fault” on Sumitomo‘s part.45 But we do note that while Zaverl, Miller, and Sweet involved the well-recognized duty of a medical care provider to create and maintain medical records,46 the source of a duty in this case is less obvious.47
2. Any error in refusing to give a permissible inference instruction was harmless.
As an alternative to burden-shifting, Todeschi also requested a less severe remedy: a jury instruction allowing the jury to make an adverse inference from Sumitomo‘s destruction of evidence. Todeschi‘s Proposed Instruction 24 would have instructed the jury that if it concluded that Halloran or Brokaw intentionally deleted emails regarding Todeschi‘s request for an accommodation, it could “infer from this fact” the additional fact that “the deleted emails would have proven a discriminatory intent” on Brokaw‘s part when he decided to terminate Todeschi‘s employment and that the emails “were de-
A permissible adverse inference, unlike the burden shifting addressed in Sweet, merely allows “the inference that the evidence was lost because it was damaging to the opposing party‘s case.”48 The inference does not shift the burden of proof at trial49 but rather allows “[a] detrimental conclusion drawn by the fact-finder from a party‘s failure to produce evidence that is within the party‘s control.”50 The inference may be the subject of a jury instruction, or, as here, the nonspoliating party may be allowed to argue for the inference in closing arguments.51
We have not previously discussed permissive adverse inference instructions as a remedy for spoliation, but we have long recognized a trial court‘s need for flexibility in determining sanctions for discovery violations.52 “As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case.”53 A number of courts follow a “totality of the circumstances” approach to determining whether to impose a sanction and what the sanction should be. Such an approach generally considers three factors: (1) “the degree of fault of the party who altered or destroyed the evidence“; (2) “the degree of prejudice suffered by the opposing party“; and (3) “whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.”54 No single factor is dispositive, and the trial court need not apply equal weight to every factor. Under such a test, thus, the spoliator‘s intent is a consideration but not necessarily determinative,55 and a party that
However, because the logical underpinning of the adverse inference is that the evidence would not have been destroyed had it not been damaging to the spoliator‘s case,57 most jurisdictions still require that the spoliator have acted in bad faith or at least negligently before imposing any sanction.58 The Florida Supreme Court—which we followed in adopting the burden-shifting presumption59—takes a different tack. It has approved jury instructions that, while requiring burden-shifting if there has been a breach of a legal duty to maintain the lost records, allow an adverse inference when (1) a party caused evidence “to be unavailable, while it was
We applied an adverse inference from the loss of evidence in Thorne v. Department of Public Safety,61 which Todeschi cites in his brief. In Thorne we held that due process required the State to preserve videotape of a driver‘s performance on field sobriety tests, made in the course of his arrest for driving under the influence, for use in a later license revocation proceeding.62 In fashioning a sanction we considered “the degree of culpability on the part of the [S]tate, the importance of the evidence lost, the prejudice suffered by the accused, and the evidence of guilt ad-
We have never applied Thorne‘s due process analysis to a civil case in which Sweet‘s burden-shifting remedy for spoliation was available to address the same circumstances: i.e., the lost evidence was clearly important and the party that lost it should have recognized the need to preserve it.67 And we decline to decide today whether a permissive inference instruction must necessarily be considered as an alternative to a burden-shifting instruction, or what a litigant has to show to be entitled to a permissive inference instruction under Alaska law. Several considerations dissuade us from deciding these issues. First, adverse inference instructions take different forms in different jurisdictions, particularly with regard to whether a duty to preserve the evidence is a prerequisite, and the advantages of the varied approaches have not been briefed in this appeal.68 Second, even if Alaska law were clear on this issue and the superior court had refused to give an instruction stating the law, we would not necessarily find error, as we review such decisions for abuse of discretion.69 And third, even if the failure to give the proposed instruction was an abuse of discretion, on this record it could only have been harmless.
As noted above, when the superior court denied Todeschi‘s request for an adverse inference instruction, it invited him to make the same point in argument, which his counsel did strongly and repeatedly.70 Argument may help clarify instructions or ameliorate defects in them.71 And the spoliation theme of Todeschi‘s argument was supported by one of the jury instructions that was given, informing the jury that “[i]f weaker
We conclude that the jury was made well aware that it was free to draw an adverse inference from missing telephone records, billing records, and emails and that the instructions that were given did not conflict with this perception. The burden of proving prejudicial error rests on the appellant.72 On this record we cannot say that the lack of a permissible adverse inference instruction probably affected the jurors’ judgment. We therefore conclude that any error in failing to give such an instruction must have been harmless.73
D. We Cannot Conclude That The Jury Instruction Arguably Raising An Untimely Statute Of Limitations Defense Probably Affected The Verdict.
Todeschi alleged that the former human resources manager at Pogo Mine, Kim Witt, threatened him in 2008 that if he continued to pursue a worker‘s compensation claim based on his 2007 injury “[t]here would be repercussions, up to and possibly including [Todeschi‘s] job.” This allegation, he contended, supported his claim that he was fired in 2010 in retaliation for his resurrection of the workers’ compensation claim. On appeal he argues that Jury Instruction 12 unlawfully complicated his workers’ compensation discrimination claim by advising the jury of a statute of limitations defense that Sumitomo had never actually raised. The instruction provided:
You have heard testimony that Kim Witt engaged in certain conduct. Sumitomo cannot be held responsible for Witt‘s conduct before 2009. However, if you find that Witt engaged in certain conduct before 2009 you may (but need not) further find that it provides context for Sumitomo‘s actions or omissions in 2010.
(Emphasis added.) The statute of limitations for workers’ compensation discrimination claims is two years, and Todeschi brought his claim in February 2011.74
Sumitomo never raised a statute of limitations defense before trial. The assertion of a defense for the first time mid-trial, by way of a jury instruction, would likely be unfairly prejudicial.75 We note that Sumitomo took advantage of the jury instruction to argue in its closing that “Mr. Witt‘s conduct cannot form the basis of a finding against Sumitomo in this case. That‘s because of statute of limitations issues.”
On the other hand, as Sumitomo argues, there was no apparent reason for it to assert the statute of limitations as an affirmative defense before trial. The causes of action Todeschi alleged in his 2011 complaint and pursued at trial were based on his termination in 2010.76 Witt‘s alleged conduct in 2008, as described in Todeschi‘s complaint, was relevant to Todeschi‘s claim that he had
Todeschi does not dispute that the jury was properly instructed on the elements of his workers’ compensation discrimination claim. And Instruction 12 expressly preserved the jury‘s ability to consider Witt‘s conduct when deciding that claim. To the extent the instruction at the same time precluded the jury from holding Sumitomo responsible for Witt‘s conduct, we agree that it presents an ambiguity—one that could have been compounded by Sumitomo‘s mention in closing argument of a statute of limitations defense it had never pleaded. But even if erroneous, Instruction 12 “is grounds for reversal only if it caused prejudice.”77 We determine prejudice by putting ourselves “in the position of the jurors and ‘determin[ing] whether the error probably affected their judgment.’ ”78 Reading the jury instructions
V. CONCLUSION
We AFFIRM the judgment of the superior court.