155 P.3d 318 (Alaska 2007), S-11255, Maines v. Kenworth Alaska, Inc.

Docket Nº:S-11255.
Citation:155 P.3d 318
Opinion Judge:FABE, Justice.
Party Name:Kevin A. MAINES, Appellant, v. KENWORTH ALASKA, INC., Kenworth Northwest, Inc., and Paccar, Inc., d/b/a Kenworth Truck Company, Appellees.
Attorney:Michael A. Stepovich, Stepovich Law Office, Fairbanks, for Appellant. Matthew C. Christian, Borgeson & Burns, PC, Fairbanks, for Appellees Kenworth Alaska, Inc. and Kenworth Northwest, Inc. Aimee Anderson Oravec, Winfree Law Office, APC, Fairbanks, for Appellee PACCAR, Inc.
Judge Panel:Before : BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
Case Date:April 06, 2007
Court:Supreme Court of Alaska
 
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Page 318

155 P.3d 318 (Alaska 2007)

Kevin A. MAINES, Appellant,

v.

KENWORTH ALASKA, INC., Kenworth Northwest, Inc., and Paccar, Inc., d/b/a Kenworth Truck Company, Appellees.

No. S-11255.

Supreme Court of Alaska

April 6, 2007

Page 319

[Copyrighted Material Omitted]

Page 320

Michael A. Stepovich, Stepovich Law Office, Fairbanks, for Appellant.

Matthew C. Christian, Borgeson & Burns, PC, Fairbanks, for Appellees Kenworth Alaska, Inc. and Kenworth Northwest, Inc.

Aimee Anderson Oravec, Winfree Law Office, APC, Fairbanks, for Appellee PACCAR, Inc.

Before : BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

OPINION

FABE, Justice.

I. INTRODUCTION

The driver of a dump truck appeals the superior court's grant of summary judgment to both PACCAR, the truck manufacturer, and Kenworth, the truck distributor, for negligent maintenance and manufacture of the truck. The driver alleges that the truck leaked refrigerant from its air conditioning system and that he developed respiratory problems as a result of the leak. The driver challenges the decision of the superior court to strike two affidavits proffered in opposition to summary judgment. We conclude that the superior court did not abuse its discretion in excluding an unsigned and unsworn declaration but did err in excluding an affidavit from a late-disclosed expert without considering lesser alternative sanctions. We also conclude that the expert's affidavit raises a genuine issue of material fact as to negligent maintenance on the part of Kenworth but not PACCAR. We therefore reverse the order granting summary judgment in favor of Kenworth but affirm the order granting summary judgment in favor of PACCAR on this claim. Finally, we conclude that the expert's affidavit raises a genuine issue of material fact as to negligent manufacture on the part of PACCAR and therefore reverse the order granting summary judgment to PACCAR on this claim.

II. FACTS AND PROCEEDINGS

A. Factual History

Kenneth Maines procured temporary, seasonal employment as a truck driver at Exclusive Landscaping and Paving, Inc. (Exclusive) in Fairbanks in June 1999. Maines drove a Kenworth dump truck, designated Truck 2-6, for Exclusive. The truck was manufactured by PACCAR, Inc., was sold to Exclusive by Kenworth, 1 and was used extensively in heavy construction. Truck 2-6 was a new truck purchased and first used by Exclusive in April 1998. Prior to Maines's use of the truck, three repairs were made by Kenworth under PACCAR's general warranty. Only one of these repairs concerned the air conditioning system and occurred on July 23, 1998 when Kenworth replaced an O-ring on the suction hose at the compressor and charged the air conditioning system with 3.4 pounds of refrigerant.

During the summer of 1999 and after the warranty had expired, a total of four repairs were made to Truck 2-6 during Maines's use of the truck. Two of those repairs involved leaks of refrigerant from the air conditioning

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system. On June 10, 1999, an existing leak in the air conditioning system was identified. A loose connection hose was repaired by tightening the hose and charging the system with one pound of R-134A refrigerant. On July 16, 1999, another leak was identified that was "wholly unrelated to and separate from the repair made on June 10, 1999." A fitting at the condenser line was tightened and the system was again charged with refrigerant. The amount of refrigerant replaced is unknown. The last two of the four repairs were made to the air conditioning system in August 1999. But there is no evidence to indicate leaks were present or that additional refrigerant was needed for the system.

Maines began driving the truck in June 1999. Two months later, in August 1999, Maines complained to Dr. Eric Tallon, an ear, nose, and throat specialist, that he had developed the following "around the clock" symptoms: "sore throat, nasal voice with congestion, shortness of breath, wheezing, congestion of the lungs, sweats at night, occasional palpitation, poor sleep, occasional bouts of nausea with vague arthralgia of the upper extremities, including shoulders." Maines maintained that these symptoms developed over a six-week time frame starting in June 1999. He also contended that he "had never had any history of bronchitis, sinusitis, or been treated for any form of sleep apnea or sleep disorder" prior to May 1999. At the time, Maines stated he was working nine-to twelve-hour work shifts six days a week and that his symptoms were worse while at work. Maines was referred to a pulmonologist, Dr. Owen Hanley, who placed him on several bronchodilators to treat asthma.

In December 2000 Dr. Stephen McCurdy became the first to relate Maines's upper and lower respiratory problems to his exposure to the refrigerant, R-134A, during 1999. The relevant portions of Dr. McCurdy's affidavit state: "I am familiar with R-134A; it is a fluorinated hydrocarbon.... Low exposures with fluorinated hydrocarbons are typically associated with transient upper airway irritation.... Exposure[] to high concentrations has been associated with chronic bronchial hyperresponsiveness (asthma), as now affects the patient." Dr. Dana Headapohl concurred with this assessment during an independent medical examination for Maines's workers' compensation claim. Her diagnosis stated that "[m]ost of Mr. Maines's symptoms during the time of the leaking refrigerant are consistent with exposure to Freon, with the exception of arthralgias."

At Exclusive's request, Dr. Brent Burton examined Maines on August 1, 2002. Dr. Burton concluded in an affidavit submitted to the trial court that "none of [Maines's] physical symptoms are consistent with exposure to R-134A." He concluded that the symptoms "are more likely than not related to Mr. Maines' poor physical condition and morbid obesity, chronic rhinosinusitis with anatomically deviated septum, heat and stuffy air in the truck cab, potential sleep apnea, and/or a combination of any or all of these factors." Dr. Burton also noted that a history of marijuana use and occasional use of pipe tobacco would significantly affect his physical symptoms. Maines does have a history of marijuana use since at least 1986.

Lance Eike, an expert witness for PACCAR, explained how R-134A flows between the evaporator, compressor, and condenser and that O-rings seal each connection point, stating: "In the event any refrigerant leaked from an O-ring connection, the leak would occur within the engine compartment itself, not in the cabin." He maintained that the air conditioning system has "multiple barriers to prevent engine compartment air from entering the cabin," and that "[t]he only failure of the air conditioning system that could leak refrigerant directly into the cabin is a failure in the evaporator core. No other component failure has the potential to allow refrigerant directly into the cab.... The failure rate of the evaporator under warranty in similar models is just over one-half of one percent...."

But Maines disputed Eike's contentions through an affidavit of Christopher Meltvedt, an automotive expert. The affidavit stated: "The opinion that I hold, on a more-probable-than-not basis, that refrigerant leaked directly in to the cabin of Kenworth dump truck 2-6, is based on the medical condition of Mr.

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Maines, as set out in the reports of Dr. McCurdy and Dr. Headapohl; my knowledge and experience working with this type of air conditioning system; the repair orders generated by Kenworth [and] the continued loss of refrigerant from the air conditioning system."

B. Procedural History

Maines filed a complaint against Kenworth and PACCAR on June 11, 2001, alleging that they negligently manufactured and maintained Truck 2-6. The negligent maintenance claim mainly implicates a number of repairs undertaken during Truck 2-6's warranty period and during the period Maines drove the truck. Maines alleges that this negligence caused him to be exposed to hazardous materials, which in turn caused him to develop respiratory problems. Maines sought damages in excess of $100,000.

Maines also filed a claim for workers' compensation benefits at roughly the same time seeking temporary total disability benefits, permanent partial disability benefits, and continuing medical benefits. These claims were denied by the Alaska Workers' Compensation Board on August 18, 2003. Kenworth and PACCAR argue that this denial of benefits renders Maines's appeal moot.

On April 4, 2003, PACCAR and Kenworth filed separate motions for summary judgment. On April 21, 2003, Maines filed a motion for a thirty-day extension of time to respond, which was granted over PACCAR and Kenworth's objection. On May 21, 2003, Maines submitted his opposition to the motions for summary judgment, including an unsigned affidavit of Dr. McCurdy and an accompanying notice of filing an unsigned affidavit, which explained that the affidavit needed to be mailed back to California for a signature and would not be returned in time to meet the deadline. On June 12, 2003, Maines was permitted to supplement his opposition with an Alaska Civil Rule 26 disclosure statement of Meltvedt. Superior Court Judge Richard D. Savell noted in his order permitting supplementation that "[t]his ruling does not preclude or address the argument that use of an automotive expert was not timely disclosed or that the affidavit is substantively deficient."

On June 25, 2003, Judge Savell granted PACCAR's motion for summary judgment concluding that there was no evidence of negligent manufacture by PACCAR or Kenworth and rejecting the theory of res ipsa loquitur. Judge Savell also issued oral findings that the affidavit of Dr. McCurdy was...

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