Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

TOMMIE PATTERSON, 

Appellant, 

v. 

GEICO GENERAL INSURANCE 

COMPANY, 

Appellee. 

) 

) Supreme Court No. S-15265 

Superior Court No. 3AN-11-12087 CI 

O P I N I O N 

 No. 6994 – April 3, 2015 

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Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, John Suddock, Judge. 

Appearances: Tommie Patterson, pro se, Anchorage, 

Appellant. Kimberlee A. Colbo, Hughes Gorski Seedorf 

Odsen & Tervooren, LLC, Anchorage, for Appellee. 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

Bolger, Justices. 

BOLGER, Justice. 

I. INTRODUCTION 

A driver injured in a hit-and-run accident sued his car insurance company, 

claiming it had breached his insurance contract by failing to reasonably compensate him 

for his injuries. He later moved to amend his complaint to include racketeering, 

embezzlement, mail fraud, and bad faith claims, but the superior court denied the motion. 
 

 

 

 

 

 

 

A jury trial was held, and the jury returned a liability verdict that was smaller than the 

insurance company’s offer of judgment. The superior court ruled that the insurance 

company was the prevailing party and awarded attorney’s fees and costs. The driver 

appeals the denial of his motion to amend, the awarding of attorney’s fees and costs, and 

several of the court’s other procedural and evidentiary rulings. Because we see no abuse 

of discretion in the court’s rulings, we affirm the judgment. 

II. FACTS AND PROCEEDINGS 

Tommie Patterson was injured in a hit-and-run accident in December 2009. 

The front driver’s side door of Patterson’s SUV was visibly damaged by the collision, 

and Patterson complained of neck and shoulder pain to an examining physician. At the 

time of the accident, Patterson held a GEICO General Insurance Company (GEICO) 

automobile insurance policy that contained a provision for uninsured motorist coverage. 

Patterson and GEICO disputed the severity of Patterson’s injuries sustained 

in the December accident. Patterson, initially represented by counsel, filed a complaint 

against GEICO alleging breach of the insurance contract. He claimed that he had 

“incurred medical expenses, travel expenses and general damages” for which “GEICO 

has refused to offer . . . a reasonable amount.” In its answer, GEICO admitted that 

Patterson had a GEICO insurance policy, that he had reported a hit-and-run accident, and 

that he “may be entitled to some uninsured motorist benefits under [his] coverage.” But 

GEICO also raised affirmative defenses, asserting that Patterson’s “injuries . . . may be 

the result of a pre-existing or subsequently occurring condition,” and that Patterson “is 

not entitled to recover medical expenses paid under his own Medical Payments 

Coverage.” 

Patterson’s attorney moved to withdraw for cause. The attorney explained: 

[Patterson] has refused to take my advice regarding 

resolution of this matter and I feel that I have done everything 

-2- 6994
 
 

 

 

 

 

 

 

 

 

I can to explain to him that even though he has [$1,000,000] 

worth of coverage, he does not have a [$1,000,000] case and 

I will not present that as an offer to settle. 

Patterson consented to the attorney’s withdrawal and notified the court that he intended 

to proceed pro se. He acknowledged that disagreements with his attorney over the 

available damages had led to the attorney’s withdrawal. 

GEICO moved for an order in limine to manage the case as a personal 

injury dispute, to prevent both parties from presenting evidence or arguments about 

Patterson’s policy limits, and to notify Patterson that his medical records — including 

his medical history from before and after the accident — might be admissible. The 

superior court granted GEICO’s motion. 

Patterson then moved to amend his complaint to include new claims, 

alleging racketeering, embezzlement, mail fraud, and bad faith. He claimed that GEICO 

refused to honor its contract with him and was thereby committing “ ‘[f]raud’ by selling 

insurance policies[] knowing very well that the policies were not going to be honored.” 

The court denied Patterson’s motion to amend, finding it both untimely and futile. The 

court concluded: “Mr. Patterson makes no evidentiary showing to justify a late-filed 

[racketeering] claim. His pleadings reveal [a] lack of understanding about Geico’s 

contract obligations. Amendment would be futile[.]” 

At a pretrial status hearing, the court advised Patterson that he was not 

entitled to $1,000,000 for his injuries and suggested that he might be acting against his 

own interests by taking the case to trial. Patterson replied that he was only asking for a 

“fair” sum and that he was unwilling to settle for the amount GEICO had offered. 

GEICO’s counsel informed the court that Patterson’s offers of judgment were for 

$800,000 and $1,000,000, and he indicated that a jury trial remained necessary to resolve 

the parties’ dispute. 

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In December GEICO perpetuated the testimony of its expert witness, Dr. 

Douglas Bald, by deposing him with Patterson present. Dr. Bald testified that, after 

reviewing Patterson’s medical records, he believed the accident had caused “very minor 

muscular type injuries to [Patterson’s] neck, upper back, [and] chest area” and that 

Patterson “had effectively recovered from the injuries . . . as of approximately January 

12, 2010, which would be a little over a month post-accident.” Dr. Bald also opined that 

many of Patterson’s claimed injuries — most notably his lower back pain — were the 

result of preexisting conditions. 

Patterson objected to Dr. Bald’s qualifications, and on cross-examination 

he questioned Dr. Bald about four malpractice claims that had been filed against him 

over the course of his career. Dr. Bald acknowledged that he had settled a single, 

legitimate malpractice claim against him, but he testified that the remaining three claims 

had been dismissed. Patterson also suggested that there might have been errors in the 

medical records upon which Dr. Bald relied. Dr. Bald acknowledged that doctors 

occasionally fail to note reported symptoms in medical records. But he also testified that 

he had relied on multiple records and that December 2009 records consistently did not 

include references to Patterson’s claimed lower back pain. 

Fifteen days before the trial was set to begin, Patterson moved to disqualify 

the trial judge. Patterson argued that the judge was biased and prejudiced against him. 

The superior court denied the motion to disqualify and the matter was assigned to 

another superior court judge for review, as required by AS 22.20.020(c). The reviewing 

court found no basis for Patterson’s claims. 

During the week before trial, the superior court ordered a pretrial 

conference to determine whether Patterson was willing to follow the court’s orders while 

in the presence of the jury. The court was concerned about statements in Patterson’s trial 

brief asserting “a [F]irst [A]mendment right to speak and present all issues . . . on any 

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subject[] matter pertaining to Geico’s embezzlement, fraud[], [and] refusal to honor [the] 

insurance policy[] limits of their contract.” At the hearing the court reiterated that the 

case would be tried only as a personal injury dispute. The court also informed Patterson 

that it would dismiss the suit unless Patterson unambiguously agreed to follow the 

court’s orders and limit his evidence and arguments to the only relevant issue: the 

severity of Patterson’s accident-related injuries. Patterson eventually agreed, and the 

court ruled that his agreement was sufficient assurance to allow the trial to proceed. 

The superior court held a jury trial. Patterson declined to testify, and chose 

to rely exclusively on his evidentiary exhibits and the videotaped deposition of Dr. Bald. 

During Patterson’s opening statement, the court sustained multiple objections when 

Patterson attempted to discuss facts outside his exhibits and Dr. Bald’s deposition. And 

when Patterson tried to tell the jury that there were subjects he had been instructed not 

to discuss, the court ordered him to stop talking and sit down. During GEICO’s opening 

statement, Patterson objected when his prior medical history was mentioned, but the 

court overruled this objection. 

Patterson then introduced and played Dr. Bald’s videotaped deposition, 

which was edited to exclude portions the court had previously ruled inadmissible. 

Following the playback of the deposition and out of the jury’s presence, Patterson rested 

his case, and GEICO moved for a directed verdict on Patterson’s claim for future 

noneconomic damages. GEICO argued that the evidence Patterson presented — his 

medical records, which extended only through early 2010, and Dr. Bald’s deposition 

testimony — provided no factual basis for these damages. The court granted GEICO’s 

motion and noted that Patterson could have avoided this partial directed verdict by 

testifying. 

The jury then returned for closing arguments. During Patterson’s closing 

argument, the court sustained all seven of GEICO’s objections — most of which were 

-5- 6994
 
 

 

 

for stating facts not in evidence — and ultimately ordered Patterson to end his argument 

before his time had expired. During GEICO’s closing argument, the court overruled 

Patterson’s objection that GEICO should not have been permitted to recommend a 

specific pain and suffering award. And throughout Patterson’s rebuttal argument, the 

court sustained additional objections when Patterson expressed his disagreement with the 

court’s evidentiary rulings, mentioned his insurance policy’s $1,000,000 coverage limit, 

and suggested that the outcome of his case would personally affect the individual 

members of the jury. After this final objection, the court again ordered Patterson to 

“have a seat.” 

The jury deliberated for less than two hours before returning a verdict 

finding GEICO liable for $5,000 in past noneconomic damages and $10,000 in past 

medical expenses. 

Patterson moved for a new trial and relief from judgment under Alaska 

Civil Rules 59(d) and 60(b), alleging that his right to an impartial judge and jury had 

been violated. The superior court denied Patterson’s motion. 

GEICO moved for a verdict reduction to reflect medical expenses already 

paid on Patterson’s behalf, for entry of final judgment and recognition as the prevailing 

party, and for attorney’s fees and costs under Alaska Civil Rule 68. The superior court 

granted these motions. The court subtracted $5,000 from the jury’s verdict to reflect 

already-reimbursed medical expenses, added $1,386 for prejudgment interest, and 

deducted $6,742 for GEICO’s attorney’s fees and $3,087.25 for GEICO’s costs. The 

court issued a final net judgment of $1,556.75 in favor of Patterson. 

Patterson appeals. 

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III. STANDARD OF REVIEW 

We review the denial of a motion to amend a pleading for abuse of 

discretion.1 “It is within a trial court’s discretion to deny such a motion where 

amendment would be futile because it advances a claim or defense that is legally 

insufficient on its face. We use our independent judgment to review a conclusion that 

an amendment meets that description.”2 

“We review the rejection of a motion to disqualify for abuse of discretion.”3 

We also review the superior court’s application of the evidence rules — including the 

court’s sua sponte rulings — for abuse of discretion.4 But “[e]rror may not be predicated 

upon a ruling which admits or excludes evidence unless a substantial right of the party 

is affected.”5

 And unless the superior court committed plain error, we review evidentiary 

rulings only when a party preserves the issue through an objection or an offer of proof.6 

“Constitutional issues are questions of law subject to independent review.”7 

We also independently review jury instructions and special verdict forms.8 But before 

1 Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 174 (Alaska 2010). 

2 Id. at 174-75 (quoting Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 287 

(Alaska 2004)) (internal quotation marks omitted). 

3 Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002). 

4 See Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996). 

5 Alaska R. Evid. 103(a). 

6 Alaska R. Evid. 103(a), (d). 

7 Harrod v. State, Dep’t of Revenue, 255 P.3d 991, 995 (Alaska 2011) (citing 

Eagle v. State, Dep’t of Revenue, 153 P.3d 976, 978 (Alaska 2007)). 

8 Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (citing Cummins, 

(continued...) 

-7- 6994
 
 

 

 

 

 

 

we will “overturn a jury instruction or special verdict form, we must conclude not only 

that the instruction or special verdict form was legally erroneous, but also that the verdict 

would probably have been different but for the error.” 9 “Questions concerning an offer 

of judgment’s meaning and whether the offer complies with Rule 68 raise issues of law, 

which we review independently.”10 

IV.	 DISCUSSION 

Patterson does not contest the jury’s factual findings that he suffered $5,000 

in past noneconomic damages and $10,000 in medical expenses. Instead, he claims that 

the superior court abused its discretion and violated his constitutional rights by ruling 

against him on various motions throughout the proceedings. We review each of 

Patterson’s arguments in turn.11 

A.	 The Superior Court Did Not Abuse Its Discretion By Denying 

Patterson’s Motion To Amend His Complaint. 

Patterson argues that the superior court should have allowed him to amend 

his complaint to include racketeering, embezzlement, mail fraud, and bad faith claims. 

8

(...continued) 

Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005)). 

9	 Id. (citing Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)). 

10	 Jackman v. Jewel Lake Villa One, 170 P.3d 173, 177 (Alaska 2007). 

11 In addition to the arguments discussed below, Patterson claims the superior 

court abused its discretion by denying his motion for a new trial in light of his allegation 

that several jurors lied during voir dire. But it was reasonable for the court to deny this 

motion, because Patterson’s jury misconduct allegation was conclusory and lacked 

evidentiary support. Although Patterson presents this court with documents that he 

claims reveal inaccuracies in several jurors’ statements, the documents were never 

presented to the superior court, have not been authenticated, and are not included in the 

record. We therefore decline to consider them. 

-8-	 6994
 
 

 

 

 

 

 

 

 

 

 

Patterson contends that the superior court, by denying his motion to amend, abused its 

discretion under Alaska Civil Rule 15. 

Under Rule 15, if a responsive pleading has been served and the action has 

been set for trial, a party may amend his pleading “only by leave of court or by written 

consent of the adverse party.” But “leave shall be freely given when justice so 

requires.”12 In deciding whether the superior court has abused its discretion by denying 

a motion to amend, we balance “the possible prejudice to [the nonmoving party] in 

defending [the new] claims with the potential harm caused to [the moving party] if he is 

precluded from litigating these issues.”13 We have recognized several reasons to uphold 

such a denial, including “undue delay, bad faith or dilatory motive on the part of the 

movant, repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of allowance of the amendment, futility of the 

amendment, etc.”14 But even an unreasonable delay in moving to amend pleadings does 

not justify denying the motion absent prejudice to the nonmoving party.15 

Here the superior court gave two reasons for denying Patterson’s motion 

to amend his complaint: untimeliness and futility. The court noted that, at the time of 

the motion, the trial was “set to occur in two months.” The court also concluded that 

Patterson made “no evidentiary showing to justify a late-filed [racketeering] claim. His 

pleadings reveal [a] lack of understanding about Geico’s contract obligations.” At a 

status hearing held soon after the denial of the motion, the court elaborated further: 

12 Alaska R. Civ. P. 15.
 

13
 Miller v. Safeway, Inc., 102 P.3d 282, 288 (Alaska 2004). 

14 Id. at 294 (quoting Betz v. Chena Hot Springs Grp., 742 P.2d 1346, 1348 

(Alaska 1987)) (internal quotation marks omitted). 

15 Id. 

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I denied [your motion] because you didn’t show me 

any . . . color[able] basis. . . . You had to show me that 

GEICO did something that was legally unreasonable that 

would amount to bad faith. You had to show me some 

evidence of that, and . . . you did not[.] . . . [T]he essence of 

your beef was that GEICO wasn’t paying you an 

astronomical amount of money. . . . 

. . . [T]here’s no evidence you’ve presented or 

argument . . . in your motion that can tell me . . . what 

[you’re] saying they did wrong. . . . [I]f I look at it and I say, 

“The gentleman doesn’t understand the law [and] there’s no 

way a jury can get there based on what he says,” I’m going 

to deny that amendment to you or anybody else. 

We do not need to determine whether the superior court’s untimeliness 

finding was erroneous, or whether that finding was sufficient to justify the denial of 

Patterson’s motion to amend. The futility of Patterson’s proposed claims provides an 

independent basis for denying the motion. 16 Patterson presented no factual allegations 

that could support his new claims, which were all predicated on his apparent 

understanding that GEICO was required to pay him his $1,000,000 policy limit in the 

event of an accident. Patterson claimed at a pre-trial hearing that the superior court 

misinterpreted the legal theory behind his proposed claims, but he provided no 

16 See Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 177 (Alaska 

2010) (“We consider with independent judgment whether a proposed amended complaint 

could survive dismissal; if we conclude that it could not, we will hold that the superior 

court did not abuse its discretion by denying the motion for leave to amend.”); see also 

Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 283, 287-88 (Alaska 2004) (affirming 

denial of motion to amend because amended complaint’s claims were preempted by 

federal law); Taylor v. Johnson, 985 P.2d 460, 464-66 (Alaska 1999) (affirming denial 

of motion to amend where plaintiff could not establish a tort claim). 

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alternative legal or factual grounds to support these claims.17 Most importantly, 

Patterson at no point alleged that his medical costs or pain and suffering damages 

approached a sum anywhere near the $800,000 and $1,000,000 settlement offers he made 

to GEICO. 

Because we agree with the superior court that Patterson’s proposed new 

claims were futile, we conclude that the court did not abuse its discretion by denying 

Patterson’s motion to amend. 

B.	 The Reviewing Court Did Not Abuse Its Discretion By Denying 

Patterson’s Motion To Disqualify The Trial Judge. 

About two weeks before the trial was originally set to begin, Patterson 

moved to disqualify the trial judge. Patterson supported his motion for disqualification 

by noting that the judge had granted summary judgment against him in a separate case 

and had ruled against him on evidentiary motions in the present dispute. Patterson 

further alleged a wide-ranging conspiracy of trial fixing and attempted murder carried 

out by the judge, GEICO, five other judges, and three other companies. 

The superior court denied Patterson’s motion, and the matter was assigned 

to another superior court judge for review.18 The reviewing court affirmed the denial of 

Patterson’s motion, concluding that there was no evidence of bias or prejudice in the trial 

judge’s evidentiary rulings nor “any basis for Mr. Patterson’s multiple judge conspiracy 

theories.” The court noted that “[g]eneral dissatisfaction with a judge’s ruling is not a 

17 Immediately after Patterson claimed he was not asking GEICO for 

$1,000,000, GEICO’s attorney informed the court that, before the hearing, Patterson had 

made “an offer of judgment for $800,000. . . . It was $1,000,000 before, but now it’s 

$800,000.” Patterson did not contest this characterization of his settlement offers. 

18 See AS 22.20.020(c) (“If a judicial officer denies disqualification the 

question shall be heard and determined by another judge assigned for the purpose by the 

presiding judge of the next higher level of courts . . . .”). 

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ground for recusal or disqualification. . . . Similarly, personal bias or prejudice does not 

exist simply because a judge previously presided over a case involving the same party.” 

Patterson argues that the denial of his motion to disqualify the trial judge 

was an abuse of discretion. He supports this argument with a number of claims, some 

of which he asserts for the first time on appeal. 19 We review previously unraised issues 

only for plain error, which “exists where an obvious mistake has been made which 

creates a high likelihood that injustice has resulted.”20 Because we perceive no plain 

error,21 we limit our review to Patterson’s original claims. 

The reviewing court did not abuse its discretion by denying Patterson’s 

motion to disqualify. “There is no rule requiring recusal or disqualification of a judge 

19 Specifically, Patterson claims for the first time on appeal that the trial judge 

was biased against African-American men, was prejudiced against pro se litigants, acted 

as an “advocate” for GEICO, and engaged in ex parte communications with GEICO’s 

attorney. 

20 See Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013) (quoting Paula 

E. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 276 P.3d 422, 436 

(Alaska 2012)) (internal quotation marks omitted). 

21 Patterson’s new claims are both overstated and unsubstantiated. For 

instance, Patterson alleges that the trial judge called him a “dog” and spoke to him with 

“anger and hat[red] in his voice.” But the trial judge did not call Patterson a dog; he 

merely used a variant of the idiom “barking up the wrong tree.” And the courtroom 

audio recordings contain no evidence that the judge spoke menacingly to Patterson. 

Patterson also contends that the trial judge engaged in “ex parte communications” with 

GEICO. This contention appears to stem from a statement the judge made to GEICO’s 

attorney off the record but in Patterson’s presence. By definition, therefore, the 

statement was not an ex parte communication. See BLACK’S LAW DICTIONARY 316 (9th 

ed. 2009) (defining “ex parte communication” as “[a] communication between counsel 

and the court when opposing counsel is not present”). Patterson further asserts that the 

trial judge has “a history of out of court ex[] parte communications,” but he points to no 

evidence in the record to back this allegation. 

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who previously has presided over a case involving the party seeking disqualification or 

recusal.”22 And we have held that “[t]o succeed on a motion to disqualify a judge for 

bias, the movant must show that the judge’s actions were the result of personal bias 

developed from a nonjudicial source.”23 We see no evidence of bias in the trial judge’s 

evidentiary rulings, and Patterson has provided no evidence to substantiate his 

conspiracy claim. We therefore affirm the denial of Patterson’s motion to disqualify the 

trial judge. 

C.	 The Superior Court Did Not Abuse Its Discretion By Overruling 

Patterson’s Objections To Dr. Bald’s Deposition Testimony. 

Patterson contends that the superior court abused its discretion by 

overruling some of his objections during the deposition of Dr. Bald. Patterson claims 

that one of GEICO attorney’s coached Dr. Bald’s testimony, creating unfair prejudice. 

He also claims that Dr. Bald’s testimony contained false statements that another GIECO 

attorney knowingly introduced to the jury over his objection.24 

1.	 It was not unreasonable for the superior court to overrule 

Patterson’s witness-coaching objections. 

To support his claim that portions of Dr. Bald’s deposition should have 

been excluded due to witness coaching, Patterson asserts that GEICO’s attorney 

instructed Dr. Bald to lie at two separate points in the deposition. We disagree with 

22	 Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994) (emphasis in original). 

23 Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (quoting Nelson v. 

Jones, 781 P.2d 964, 972 (Alaska 1989)) (internal quotation marks omitted). 

24 Patterson also alleges other forms of professional misconduct on the part 

of GEICO’s attorneys, including (1) representing Patterson without permission and (2) 

improperly and prejudicially substituting counsel. He raises these claims for the first 

time on appeal; because we perceive no plain error, they are waived. 

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Patterson’s characterization of the attorney’s statements and conclude that the superior 

court’s decision to overrule Patterson’s objections was reasonable. 

The first statement that Patterson characterizes as witness coaching 

occurred as GEICO’s attorney questioned Dr. Bald about the extent of Patterson’s 

injuries on the night of the accident. The attorney appeared surprised by one of Dr. 

Bald’s answers, and he repeated Dr. Bald’s testimony. While this statement was 

technically objectionable because it was not in the form of a question, Patterson fails to 

explain how it amounts to improper witness coaching. He also fails to explain how he 

was prejudiced by it. 

The second statement that Patterson cites arose only after Patterson 

instructed Dr. Bald on how to answer a question. When Dr. Bald rejected the premise 

of Patterson’s question and began to explain why he could not answer it, Patterson told 

him: “I asked you a question. All you got to do is answer yes or no. . . . I don’t want 

you . . . to explain it. . . . All you got to say is ‘yes’ or ‘no.’ ” In response to Patterson’s 

incorrect instruction, GEICO’s attorney stated that Dr. Bald did “not need to just answer 

‘yes’ or ‘no’ ” if he had more to say. (Emphasis added.) The attorney was making a legal 

argument against Patterson’s instruction and was not advising Dr. Bald to provide any 

particular answer. Therefore the superior court did not abuse its discretion when it 

overruled Patterson’s improper witness coaching objection. 

2.	 It was not unreasonable for the superior court to overrule 

Patterson’s false-statement objections. 

Patterson also argues that the superior court should not have admitted a 

separate portion of Dr. Bald’s testimony because it contained false statements. 

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Moreover, he accuses another GEICO attorney of introducing the testimony knowing 

that the statement was false.25 

Patterson’s criticism of the deposition testimony focuses on two of Dr. 

Bald’s assertions: first, that “[t]here was no reference by the EMTs [in the Anchorage 

Fire Department Prehospital Care Report] that Mr. Patterson was complaining of any 

lower back pain,” and second, that “[Patterson] was complaining of[] left shoulder pain 

and neck pain primarily on the left side. . . . [Patterson] specifically noted that there were 

no other injuries.” Patterson argues that these statements were inconsistent with the 

emergency room report from the night of the accident, which noted that one of 

Patterson’s chief complaints was “pain in neck and back.” We disagree. 

Dr. Bald’s interpretation of the emergency room report appears at least as 

reasonable as Patterson’s. The section of the report that provides a detailed description 

of Patterson’s symptoms contains no mention of lower back pain: “[Patterson] now has 

pain in his left shoulder which he has had chronically but is worse now, worse to 

movement. He also has pain in his neck, mostly on the left side as well. No one else was 

in the vehicle with him. He denies any other injury.” (Emphasis added.) Thus the back 

pain mentioned in the report, when read in the context of the entire document, probably 

refers to shoulder pain, not lower back pain. But regardless of whose interpretation is 

correct, Patterson has not demonstrated that Dr. Bald knowingly made a false statement 

at his deposition, because the document can be read to support the doctor’s 

interpretation. As a result, Patterson has likewise failed to show that GEICO’s attorney 

offered evidence she knew to be false. 

See Alaska R. Prof. Conduct 3.3(a) (“A lawyer shall not knowingly . . . 

make a false statement of fact or law to a tribunal . . . or . . . offer evidence that the 

lawyer knows to be false.”). 

-15- 6994 

25 
 

 

 

 

 

 

 

For these reasons, we conclude that the superior court’s admission of this 

deposition testimony was not an abuse of discretion. 

D.	 The Superior Court Did Not Violate Patterson’s Free Speech And Due 

Process Rights By Preventing Him From Discussing Subjects Outside 

The Scope Of The Admissible Evidence. 

During Patterson’s opening statement and closing arguments to the jury, 

the superior court repeatedly sustained GEICO’s objections, made its own sua sponte 

rulings, and ultimately ordered Patterson to conclude his opening statement and closing 

arguments before his time had expired. Patterson argues that these restrictions on his 

statements violated his constitutional free speech and due process rights. 

Patterson’s free speech argument is entirely without merit. The U.S. 

Supreme Court has indicated that free speech rights are severely limited in the 

courtroom: “It is unquestionable that in the courtroom itself, during a judicial 

proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed. 

An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond 

the point necessary to preserve a claim for appeal.”26 And we have held that “speech that 

27	 28 affects the judicial process can be limited.” The courtroom is not a public forum, and 

sustaining an objection does not violate a litigant’s free speech right. 

26	 Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991). 

27 Turney v. State, 936 P.2d 533, 541 (Alaska 1997) (citing Marks v. City of 

Anchorage, 500 P.2d 644, 647 (Alaska 1972)) (rejecting First Amendment claim by 

private citizen advocating within courthouse for jury nullification). 

28 See Zal v. Steppe, 968 F.2d 924, 932 (9th Cir. 1992) (“Traditional First 

Amendment analysis also supports the idea that lawyers (and others) have no First 

Amendment right to speak freely in a courtroom: a courtroom is not a public 

forum . . . .”). 

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Patterson’s due process claim, however, warrants more detailed discussion. 

We interpret this claim as an argument that Patterson’s substantial rights were violated 

when the superior court ruled against him on evidentiary matters.29 But under Alaska 

Evidence Rule 611(a), a trial court has wide discretion “to control the presentation of 

evidence so as ‘to make the interrogation and presentation effective for the ascertainment 

of truth.’ ”30 Patterson’s due process claim can have no merit if Patterson cannot even 

show that the court’s evidentiary rulings were unfair or unreasonable, and we see no 

abuse of discretion in these rulings. 

Nearly every sustained objection was intended to prevent Patterson from 

discussing facts not in evidence or from making irrelevant and potentially prejudicial 

arguments about topics the court had explicitly ordered him not to discuss. Patterson 

repeatedly refused to abide by the superior court’s order barring him from introducing 

details about his insurance policy to the jury. He tried to talk about the insurance claim 

process. He obliquely implied that he had car insurance while pulling an object — 

possibly his insurance card — out of his wallet to show to the jury. He attempted to 

discuss his insurance coverage limits. And he referenced his rejected insurance fraud 

claim. The superior court was well within its discretion to limit Patterson’s statements 

on these matters. 

The superior court also prevented Patterson from arguing that Dr. Bald and 

Patterson’s treating physicians had been sued in the past for medical malpractice. The 

court stopped Patterson when he began referencing multiple medical malpractice claims 

brought against Dr. Bald as if they were all factually supported. The court’s action was 

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

30 Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996) (quoting 1 JOHN W. 

STRONG, MCCORMICK ON EVIDENCE § 55, at 225 n.21 (4th ed. 1992)). 

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reasonable because Patterson was mischaracterizing the evidence to the jury. Dr. Bald 

admitted in his deposition that he had been liable for one instance of medical malpractice 

during his career. But he also testified that the three remaining claims had been 

dismissed, and Patterson presented no admissible evidence to contradict this testimony. 

Likewise, Patterson presented no admissible evidence to support his insinuation that his 

own doctors had committed malpractice. The court properly excluded all of Patterson’s 

proposed exhibits pertaining to malpractice allegations, because the documents were 

hearsay and could not be authenticated.31 The superior court did not abuse its discretion 

by requiring Patterson to discuss only facts that were supported by the evidence before 

the jury. 

And the superior court acted reasonably by ordering Patterson to end his 

opening statement and closing arguments before his time had expired. Before ordering 

Patterson to finish speaking during his opening statement, the court gave Patterson many 

opportunities to correct his approach, advising him five times to focus his statement on 

the only relevant issue: the extent of his injuries as described by the admissible evidence. 

Despite these instructions, Patterson’s narrative continued to exceed the scope of his 

evidence, and he ultimately suggested that the jury should consider inadmissible issues: 

“this matter is not all about [an] injury; it’s about more that is not going to be brought 

out.” By this point, it was not unreasonable for the court to conclude that Patterson had 

nothing else relevant to say. 

The court’s decision to prematurely end Patterson’s closing argument was 

similarly reasonable. During his argument, Patterson again ignored the court’s 

instructions to avoid discussing his insurance details and to focus on relevant facts. 

31 See Alaska R. Evid. 802 (hearsay rule), 901 (authentication requirement). 

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Moreover, the court ordered Patterson to finish his closing argument only after Patterson 

attempted to improperly personalize the verdict to the jury:32 

Ladies and gentlemen, what I’m trying to say is [that] GEICO 

. . . is hoping and trying to get not only you but me to take a 

knife and put it around your neck and pull it, because the 

decision that is made today is going to affect you, your kids, 

and anybody else that drive[s] out there on that road because 

they honestly don’t have to honor their contract. 

Likewise, the court ordered Patterson to finish his rebuttal argument only after he 

returned again to this improper theme: 

All I’m asking you all to do is go back to that [deliberation] 

room and do the right thing. Do the right thing. [GEICO] 

wants you to do something that[’s] going to [affect] not only 

you, me, and everybody else. This opinion’s going to be all 

over the country. . . . This gives insurance companies a 

chance to lowball you for your claims. That’s what that’s 

about. 

The superior court had a duty to ensure that the trial was fair to GEICO as 

well as Patterson. The court took reasonable action to control the proceedings and 

prevent Patterson from introducing irrelevant facts and prejudicial arguments to the jury. 

The court did not abuse its discretion by limiting Patterson’s statements to the relevant 

evidence. And by providing Patterson with ample opportunity to speak to the jury about 

the relevant evidence, the court ensured that Patterson received the process he was due.33 

32 Cf. State v. Raspberry, 452 S.W.2d 169, 172 (Mo. 1970) (rejecting as 

improper an argument that jury should return guilty verdict “for the sake of your 

children, . . . for your wives, . . . for your families, [and] for the sake of the people of the 

community”). 

33 Patterson also argues that the court violated his confrontation and due 

process rights by denying his request to examine Dr. Bald telephonically at trial, and he 

accuses one of GEICO’s attorneys of making a false statement to this court by 

(continued...) 

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E.	 The Superior Court Did Not Abuse Its Discretion By Omitting 

Portions Of Dr. Bald’s Deposition When It Was Played To The Jury. 

The superior court sustained objections to six segments of Dr. Bald’s 

deposition. Patterson argues that the court abused its discretion by omitting these 

segments when the deposition was played to the jury. We disagree. 

None of the six segments contained testimony that was relevant to the jury’s 

deliberations. One segment pertained to the discoverability of Dr. Bald’s tax documents. 

Three segments contained Patterson’s argumentative and unsubstantiated accusations 

that Dr. Bald had previously committed multiple instances of medical malpractice and 

was lying to Patterson about them. Another segment pertained to past malpractice claims 

that had previously been brought against Patterson’s treating physicians; Dr. Bald had 

no personal knowledge about the doctors or the claims. And the final segment consisted 

of a legal discussion between Patterson and GEICO’s attorney, followed by a series of 

questions about the misconduct of a different Dr. Bald. Because these portions of the 

deposition were irrelevant to the issues at trial, the court reasonably omitted them. 

F.	 The Trial Court Did Not Err By Overruling Patterson’s Objections 

During GEICO’s Opening Statement And Closing Argument. 

Patterson argues that GEICO made unfairly prejudicial remarks in its 

opening statement and closing argument. He claims GEICO violated a superior court 

33(...continued) 

mischaracterizing Confrontation Clause doctrine. But the Confrontation Clause does not 

apply to civil proceedings, and GEICO’s attorney’s statement to that effect was both 

accurate and proper. See U.S. CONST. amend. VI (“In all criminal prosecutions, the 

accused shall enjoy the right . . . to be confronted with the witnesses against him.” 

(emphasis added)). And the superior court generally does not have subpoena power to 

require out-of-state witnesses to appear. See Alaska R. Civ. P. 45(e) (“A subpoena 

requiring the attendance of a witness at a hearing or trial may be served at any place 

within the state.” (emphasis added)). 

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order by raising his prior medical history and by suggesting a specific amount for pain 

and suffering damages. Patterson also contends that GEICO’s closing argument 

included a “golden rule” argument, a disclosure of the “ad damnum,” and improper 

personal opinions. 

During opening statements, GEICO’s attorney told the jury: 

[Y]ou will see from the medical records that . . . Mr. 

Patterson has a history of prior neck problems, prior left 

shoulder problems, prior knee problems. He also has a 

history of prior low back issues. You will see . . . that in the 

month after this accident, his complaints were all about his 

neck and his shoulder, that there [were] no specific 

complaints about his low back or examination or diagnosis 

regarding his low back until about a month and a half after 

this accident occurred . . . . GEICO’s position in this case 

will be that he did not sustain a low back injury. 

And during closing arguments, GEICO’s attorney stated: 

[I]f you look through the records and you add up the 

medical expenses for December 2009, excluding . . . three 

items of treatment [that GEICO believes were unrelated to the 

car accident], the medical expenses total $6,354.61, and that’s 

what we’d ask that you award Mr. Patterson for past medical 

expenses. 

For past general damages, this is typically a difficult 

area for juries to . . . [grasp], because what the court will tell 

you is . . . there’s no formula for figuring out what to award 

somebody for pain and suffering. And in some respects your 

job is more difficult here because you have no [testimonial] 

evidence . . . to base an award on. All you have is what’s in 

the medical record. . . . So in the absence of . . . testimony, 

we’d respectfully submit to you that, at most, what you can 

award is a nominal amount for past pain and suffering, and 

that’s it because that’s all the evidence supports in this case. 

And we’d suggest an award [of] $500 [to] $1,000 for that 

month of some pain. 

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Patterson’s claim that GEICO violated a court order by discussing his 

medical history is without merit. In the court order Patterson references, the superior 

court explicitly noted that Patterson’s medical records could be relevant for determining 

whether his injuries stemmed from the accident, from preexisting conditions, or from 

some combination of both. GEICO’s attorney discussed Patterson’s medical history for 

exactly this purpose. 

Patterson’s argument that GEICO violated an order to avoid suggesting a 

specific damages award is similarly meritless. Although the court ordered both parties 

not to discuss the details of Patterson’s insurance policy — including its coverage limits 

— GEICO remained free to suggest a damages figure to the jury based on the evidence 

at trial. 

We also reject Patterson’s claim that GEICO made an improper “golden 

rule” argument. Golden rule arguments “implore[] the jurors to put themselves in the 

position of [a party], and then to ask themselves what kind of outcome they would wish 

under the circumstances.”34 Although we have held that golden rule arguments are 

prejudicial and should be excluded,35 GEICO made no such argument in its opening and 

closing statements. 

Patterson’s “ad damnum” argument seems to refer to GEICO’s suggestion 

that the jury award $500 or $1,000 for pain and suffering. An “ad damnum” is an 

34 Beaumaster v. Crandall, 576 P.2d 988, 994 (Alaska 1978). 

35 Id. (citing Mallonee v. Finch, 413 P.2d 159, 164 (Alaska 1966)). 

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antiquated term for the total damages claimed in a plaintiff’s pleadings.36 But Patterson’s 

complaint did not include an ad damnum figure, so this argument is without merit. 

Finally, we reject Patterson’s claim that GEICO’s attorney expressed an 

improper personal opinion. The personal opinion objection is typically found in criminal 

cases, when a “prosecutor . . . assert[s] personal opinion[s] about the culpability of the 

defendant.”37 The U.S. Supreme Court has explained that such arguments are prejudicial 

because they “convey the impression that evidence not presented to the jury, but known 

to the prosecutor, supports the charges against the defendant.”38 This can be particularly 

prejudicial because “the prosecutor’s opinion carries with it the imprimatur of the 

Government and may induce the jury to trust the Government’s judgment rather than its 

own view of the evidence.” 39 But the prohibition against personal opinions does not 

prevent an attorney from arguing the evidence from a client’s position. Here GEICO’s 

attorney merely summarized the evidence and argued for GEICO’s preferred legal 

outcome. This was entirely proper, and the court did not abuse its discretion by allowing 

GEICO to argue its case. 

G. The Superior Court Did Not Misinstruct The Jury. 

Patterson argues that the superior court misinstructed the jury by referring 

to Dr. Bald as an “examining physician” early in the trial and by drafting an incorrect 

special verdict form. We will overturn a jury instruction or special verdict form only if 

36 See, e.g., Jackson v. Leu-Pierre, 296 A.2d 902, 903 (N.H. 1972) (“The 

plaintiff’s original writ . . . contained an ad damnum in the amount of $12,000.00. By 

motion granted by agreement . . . , this was increased to $13,500.00 due to the addition 

of a claim for property damage.”). 

37 See Noel v. State, 754 P.2d 280, 283 (Alaska App. 1988). 

38 United States v. Young, 470 U.S. 1, 18 (1985). 

39 Id. at 18-19. 

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we conclude both “that the instruction or special verdict form was legally erroneous” and 

“that the verdict would probably have been different but for the error.”40 

Patterson correctly notes that the superior court erroneously referred to Dr. 

Bald as “a physician who examined Mr. Patterson” while providing the jury with an 

overview of the evidence they would hear at trial. But Patterson quickly brought this 

error to the court’s attention, and the court addressed the mistake with the jury: 

I want to correct a misstatement I made . . . . I said that Dr. 

Bald was . . . an examining physician. It turns out I’m 

wrong. . . . He’s a defense expert. However, he did not 

conduct an examination of Mr. Patterson. He merely 

conducted what we call a records review but not a physical 

examination. So I wanted to correct any misimpression. 

Patterson did not object to this subsequent characterization of Dr. Bald’s role. Moreover, 

GEICO reiterated during its opening statement that “Dr. Bald conducted what’s called 

a records review. He reviewed Mr. Patterson’s records. He did not examine Mr. 

Patterson.” (Emphasis added.) These clarifications, along with the playback of Dr. 

Bald’s deposition to the jury, clearly and accurately described Dr. Bald’s role, and 

Patterson has not presented any evidence that he was prejudiced by the court’s initial 

misstatement. 

Patterson also argues that the superior court erred by crafting a special 

verdict form based on GEICO’s proposed form, not his. But there were only three 

material differences between the court’s special verdict form and Patterson’s proposed 

form: (1) the court’s form asked the jury whether it was “more likely true than not” that 

Patterson was injured by the December 2009 accident; (2) Patterson’s form incorrectly 

stated that “GEICO [was] obligated to pay to Plaintiff the applicable policy limit . . . 

Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (citing Reich v. 

Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)). 

-24- 6994 

40 
 

 

 

 

 

 

spelled out in the contract”; and (3) Patterson’s form contained a reference to “bad faith 

damages.” 

Patterson is correct that, in the absence of further instruction, asking the 

jury to evaluate whether he had been injured in the accident might have been prejudicial 

in light of GEICO’s admission that he sustained at least minor injuries. Nevertheless, 

both the superior court and GEICO informed the jury that this issue was not contested 

and that the jury was required to find that the car accident resulted in personal injury to 

Patterson. Because the jury followed this instruction, Patterson suffered no prejudice. 

Patterson’s remaining complaints about the court’s special verdict form are 

entirely without merit. Neither Patterson’s policy limit nor his proposed bad faith claim 

were relevant to the jury’s deliberations, and referencing either item on the special 

verdict form would have caused unfair prejudice to GEICO. 

For these reasons, we conclude that the superior court did not misinstruct 

the jury. 

H.	 The Superior Court Did Not Err By Adjusting The Judgment Or 

Awarding Attorney’s Fees And Costs To GEICO. 

Patterson argues that the superior court erred by adjusting the final 

judgment by $5,000 to account for medical expenses that GEICO had already paid. He 

also argues that the superior court erred by granting GEICO’s request for attorney’s fees 

and costs. 

Patterson claims that, by deducting $5,000 from the jury verdict, the 

superior court erroneously ordered him to “pay GEICO back” for the medical expenses 

he incurred. This is incorrect. The unadjusted jury verdict covered all of Patterson’s 

damages, and the court’s adjustment reflected GEICO’s past compensation to Patterson 

in the form of paid medical expenses. Indeed, had the court failed to make this 

adjustment, Patterson would have received a double recovery. 

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We also conclude that the superior court did not err by declaring GEICO 

the prevailing party and granting GEICO’s request for attorney’s fees and costs. Under 

Alaska Civil Rule 68, if a party serves an offer of judgment “more than 10 days before 

the trial begins” and the final judgment “is at least 5 percent less favorable to the offeree 

than the offer, . . . the offeree . . . shall pay all costs as allowed under the Civil Rules and 

shall pay reasonable actual attorney’s fees incurred by the offeror from the date the offer 

was made.” Rule 68(b)(2), which is applicable here, provides that “if the offer was 

served more than 60 days after the date established in the pretrial order for initial 

disclosures . . . but more than 90 days before the trial began, the offeree shall pay 50 

percent of the offeror’s reasonable actual attorney’s fees.” 

GEICO presented Patterson a valid offer of judgment for $15,001 plus 

prejudgment interest, “in addition to the $5,000.00 in auto medical payments benefits 

previously paid by Geico on plaintiff’s behalf.” (Emphasis added.) The superior court, 

after deducting $5,000 for GEICO’s past medical payments from the jury verdict and 

adding $1,386 in prejudgment interest,41 determined that the final judgment for Patterson 

was $11,386. Because this amount was more than five percent smaller than the $15,001 

plus interest that GEICO had previously offered Patterson, the court concluded that 

GEICO was the prevailing party and was therefore entitled to attorney’s fees and costs 

under Rule 68. GEICO reported that it had incurred $3,087.25 in costs, and that it was 

41 Patterson argues that the proper interest rate should have been 8%, not the 

3.75% the court used. But it is unclear where Patterson obtained this figure, since the 

statute he cites, AS 45.45.010(a), is not only irrelevant but references an interest rate of 

10.5%. Regardless, the correct interest rate under AS 09.30.070 was 3.75% — that is, 

3% more than the .75% U.S. Federal Reserve discount rate in effect on January 2, 2013. 

See U.S. FED. RESERVE, DISCOUNT AND ADVANCE RATES: NOVEMBER 19 AND 

D ECEMBER 10, 2012, at 2 (2012), available at 

http://www.federalreserve.gov/newsevents/press/monetary/monetary20130108a.pdf. 

-26- 6994
 
 

eligible for a $6,742 attorney’s fees award under Rule 68(b)(2). The court subtracted 

these expenses from Patterson’s final judgment amount, which resulted in a net final 

judgment of $1,556.75 in favor of Patterson. We see no error in the court’s calculations. 

V. CONCLUSION 

We AFFIRM the judgment of the superior court in all respects. 

-27- 6994