Alaska Employment Law

Three opinions on expert witnesses issued by the District of Alaska appeared yesterday on Westlaw.  They date from March 2006 through May 2007.  (I can’t tell if Westlaw just published them, or if the Westlaw retrieval tool that I use daily picked them up only yesterday.)  They are as follows.

Police practices and procedures:  In this action against the Anchorage Police Department for false arrest, assault, etc., Judge Timothy Burgess permitted the Department to present Police Officer John Daily

to testify as to police training and proper police procedures, but . . . not . . . as to whether those procedures were followed in this case absent express order of the Court during trial.

Berman v. Anch. Police Dept., 2006 WL 5230016 (D.Alaska May 23, 2006).

Relationship between expert report and newly-discovered evidence:  At issue here was whether a Progressive UI policy permitted plaintiff to recover a separate “each person” policy limit for consortium loss for his child’s death.  Judge Timothy Burgess granted plaintiff discovery on the drafting history of the provision as it pertained to Alaska.  Satisfied that that new discovery showed no bad faith by Progressive, Burgess barred further discovery on that issue.  He also limited the scope of plaintiff’s deposition of attorney Daniel Quinn.  Finally, Burgess struck plaintiff’s expert witness report because it was not tied to any newly-discovered evidence.  “The Court also notes that the expert report primarily contains legal conclusions that are not the appropriate subject for expert testimony.”

 Weilbacher v. Progressive Northwestern Ins. Co., 2007 WL 4698984 (May 23, 2007)

 Construction practices: Judge John Sedwick denied a sub’s motion to exclude the general contractor’s expert witness (Dr. Raymond Tide) on ”the qualify and adequacy of the structural steel, shop drawing, and detailing work” performed by the sub, and a second expert witness (Michael Jens) on ”the time and cost impacts caused by the allegedly faulty and defective fabrication and late delivery of structural steel.”  

As to Jens, Sedwick rejected the sub’s argument that only an accountant could testify as to costs.

As to both witnesses, Sedwick stated:

[sub Poong Lim] argues that the opinions are based upon an uncritical acceptance (or “rubber stamping”) of the position asserted by [general contractor] DPG as to the facts of the case without consideration of the facts as viewed from the perspective of Poong Lim. The problem with Poong Lim’s argument is at least twofold. First, testimony of an expert need not be based upon facts within the expert’s personal knowledge and is commonly based upon facts assumed to be true (hypothetical questions).  Second, experts may testify based upon controverted facts or one party’s or the other’s version of the facts. Indeed, it would be error for the court to exclude the testimony of an expert on the grounds that it is based upon one version of disputed facts.

(Citations omitted.)  Sedwick cited to an earlier opinion on expert witness testimony (by the sub’s CPA) in the same case, at 399 F.Supp.2d 1040 (D.Alaska 2005).

U.S. ex rel. Poong Lim/Pert J. V. v. Dick Pacific/Ghemm Joint Venture, 2006 WL 5230015 (D.Alaska Mar. 2, 2006)