Liimatta v. Vest

CARPENETI, Justice,

with whom BRYNER, Justice, joins, dissenting.

Faced with a defendant's pretrial demand that the court admit into evidence approximately 6,000 pages of medical records,1 the superior court carefully reviewed the claims and defenses of the parties, admitted some but not .all of the proffered evidence, and provided a means for the defendant to use the other parts of the evidence at trial. The defendant made no effort to use the evidence *323at trial as the court allowed, but now complains that the court's limiting order was error. Because the trial court's ruling was well within the court's discretion, and because the defendant neither sought the admission of specific records nor showed how he was prejudiced by their exclusion, I would affirm the decision of the superior court.

Deborah Vest, who claimed she was injured in a bicycle/truck collision and sued for damages, moved for an extensive protective order before trial, The motion covered ten distinct injuries (or groups of injuries) going back over sixteen years, four different workers' compensation claims, three marriages, various mental disabilities, collateral sources, her relationship with her attorney, a prior DWI and loss of license, and alleged addiction to pain medication. Two parts of the motion are relevant to this appeal:; prior injuries suffered by Vest and her use or abuse of pain medication. As to these issues, defendant Into Liimatta noted that several of the parts of her body that Vest claimed were injured in this accident were the subject of previous injuries; he further argued that Vest's addiction was admitted and highly relevant. Liimatta attached a fifty-three-page "medical summary/chronology" and at the hearing on the motion for protective order voiced his intention to have admitted into evidence both the summary and the approximately 6,000 pages of medical records from which the summary was drawn.

Superior Court Judge Larry C. Zervos ruled on this massive, multi-part motion in a lengthy oral ruling that, interspersed with continued colloquy with counsel, required several pages of transcript. Significant for our purposes are the following aspects of the ruling:

(a) on the question of other injuries, the judge ruled admissible evidence that showed that any "body parts" that Vest claimed were injured in the subject accident were injured in the past seven years;
(b) on the question of "drug-seeking behavior," the judge allowed all such evidence that had occurred since the accident, as well as testimony from three different doctors that dealt with pre-accident incidents: Dr. Totten's testimony about his concern about such behavior, and the testimony of Drs. Paulson and Jacobson (or Dr. West) concerning the claim that Vest, on a number of occasions in 1991, sought pain medication first for one tooth and then, after it was ultimately extracted, for a second tooth, for the purpose of obtaining the medication;
(c) the judge allowed the use of the medical records to impeach Vest and her witnesses ("Clearly, use them to impeach, it's fine."); and
(d) the judge disallowed the summary on the ground that it was one-sided.2

That the superior court specifically permitted use of any of the proffered evidence for impeachment is highly significant. Liimatta was thereby free to confront Vest with any instances-pre-accident or post-accident-of drug-seeking behavior once Vest testified that the pain she suffered and for which she needed medication resulted from the accident for which she was suing.3 She did so testify. Yet Liimatta did not use the medical records for the purpose Judge Zervos specifically allowed: impeachment of Vest or her witnesses. Lifimatta's failure made it impossible for the superior court to make the probative-vs.-prejudicial balancing that the rules require and that this court attempts in Part IILB.1. of today's opinion. This failure is particularly pointed because Liimatta, as the proponent of evidence, is required to seek admission of the evidence with a specific offer of proof.

As the proponent of the disputed evidence at trial, Liimatta was required to seek admission of the specific records that he wanted to use and to make a specific offer of proof in *324the event of their exclusion.4 Since the superior court's pretrial order broadly permitted Liimatta to use the disputed medical records in many different ways, the order did not relieve Liimatta of the obligation to comply with the offer of proof requirement.5

Liimatta failed to meet his obligation and, indeed, did not even attempt to use the disputed records for many of the purposes that the trial court deemed admissible. He simply presented a boxful of undifferentiated medical records to the court at the pretrial hearing, said that the box was full of relevant evidence, and demanded a pretrial ruling that all the records would be admitted because Vest did not dispute their authenticity.

Liimatta's failure to make specific offers of proof at trial makes it virtually impossible to meaningfully balance the probative value of any of the disputed records against their prejudicial impact or to realistically assess Liimatta's claim that exelusion of those ree-ords resulted in actual prejudice, as this court attempts to do in Part IIILB.1. Liimat-ta's failure leads this court into the curious position of reversing the trial court's judgment without ever identifying a specific item of admissible evidence-not a single medical record-that the superior court's pretrial order actually excluded and whose exclusion caused actual prejudice to Liimatta.

Referring back to the appellant's briefs provides no useful guidance on this point. While Litmatta describes a handful of specific records,: all of them either raise facial problems of admissibility or fall well within the ambit of the trial court's ruling allowing Lii-matta to admit specific records for specific purposes as they became relevant during the course of the trial. Liimatta makes no effort to explain his failure to use these records at trial, and his failure seems inexplicable, except perhaps as a deliberate tactical choice.

This court tries to deal with this vexing problem by essentially assuming the existence of prejudice from Vest's failure to establish its absence. Yet this approach reverses the usual rule that places the burden of proving both error and prejudice squarely on the appellant. Reversing the usual burden seems especially unjustified here, because the trial court expressly invited Lii-matta to make unlimited use of the disputed records for purposes of impeachment. Because Alaska normally allows impeachment evidence to be considered for substantive purposes,6 it would seem all the more fitting to demand that Liimatta explain why he could not have overcome any potential prejudice by accepting the court's invitation to use-and thereby gain admission of-the disputed records for impeachment.7

Judge Zervos was faced with a request to admit into evidence 6,000 pages of medical records (with no explanation or context) and a "summary" of them that was not a true *325summary but a one-sided extraction of information negatively characterized by the defendant. The trial judge adopted a reasonable intermediate approach: He properly disallowed the "summary" as inaccurate, allowed in a substantial amount of the disputed evidence, and left the door open for virtually unlimited amounts of the remainder to be used should Liimatta choose to use it to impeach. Liimatta chose not to use the evidence to impeach. I would not now uphold his claim that the original ruling was flawed given his failure to use the evidence as the superior court allowed him to do, his failure to identify any evidence that he was precluded from using, and his inability to establish how the exclusion of any particular evidence prejudiced his case.

. The transcript of the pretrial proceedings showed the judge's concern for what the defendant proposed: }

THE COURT: [Counsel], are you planning just to dump a ton of medical records on the jury?
[COUNSEL]: I plan on admitting them.
THE COURT: Well, yeah, that's the same thing, and that's not going to happen. I mean, you can use-you can admit them and have them used for impeachment or have them used by others in some specific reference, but just to hand them 6,000 pages of medical records, or even-if, hopefully, if my ruling has done anything, it's cut down those pages significantly.

. I agree with this court's affirmance of Judge Zervos's decision to disallow use of the summary at trial.

. See Loncar v. Gray, 28 P.3d 928, 932 (Alaska 2001) (holding that party benefitted by protective order may "open the door to evidence on a subject by putting that subject at issue in the case"); Worthy v. State, 999 P.2d 771, 775 (Alaska 2000).

. See Alaska R. Evid. 103(a)(2).

. While our case law does indicate that Rule 103(a)(2) should be relaxed when an unambiguous pretrial order categorically excludes certain evidence and renders an offer of proof at trial patently futile, the trial court's pretrial comments here did not unambiguously and categorically exclude the disputed records; to the contrary, they broadly allowed many uses of the disputed records, were equivocal as to other uses, and generally displayed the court's openness to further consideration if Liimatta's counsel came up with further specific proposals. In such situations, our case law suggests that Rule 103 should be strictly enforced. Compare, e.g., Landers v. Municipality of Anchorage, 915 P.2d 614, 616-17 (Alaska 1996), and Agostinho v. Fairbanks Clinic P'ship, 821 P.2d 714, 717 (Alaska 1991), with Bliss v. Bobich, 971 P.2d 141, 144-45 (Alaska 1998), Sweet v. Sisters of Providence in Washington, 895 P.2d 484, 497 (Alaska 1995), and Poulin v. Zartman, 542 P.2d 251, 265-66 (Alaska 1975) overruled on other grounds by State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982).

. See, eg., Beavers v. State, 492 P.2d 88, 91-94 (Alaska 1971); Wright v. State, 501 P.2d 1360, 1369 (Alaska 1972); McMaster v. State, 512 P.2d 879, 884 (Alaska 1973); Priest v. Lindig, 583 P.2d 173, 180 & n. 26 (Alaska 1978); Brower v. State, 728 P.2d 645, 647 (Alaska App.1986); Larson v. State, 656 P.2d 571, 574-75 (Alaska App.1982); and Thomae v. State, 632 P.2d 236, 240 (Alaska App.1981).

. The court concludes that the trial court's pre-trail exclusion of some of the medical records "apparently precluded" showing the records to the jury while impeaching the plaintiff. (Op. at --) But it did not: Judge Zervos specifically allowed the impeachment use of the evidence (if plaintiff testified, which she did), and evidence that is relevant to impeach is admissible for substantive purposes. Beavers, 492 P.2d at 91-94.