FABE, Justice.
On August 17, 2007, Helen Barton was injured while watching a high school football game in Barrow when at least one player ran out of bounds during a play and collided with Barton, breaking her leg. Barton sued the North Slope Borough School District, alleging in part that the football field had not been designed or built with a proper "run-off" area along the sidelines and that spectators had improperly been allowed to stand in the run-off area during the August 17 game. Barton retained expert Juliet Vong, a landscape architect, who proposed to testify that she used a particular manual in designing sports fields "to help ensure the appropriate dimensions and design criteria are met for a given sport and level of play." The District filed a motion in limine to exclude Vong's testimony because it did not provide an admissible expert opinion. The superior court agreed with the District and excluded Vong's report and testimony. At a jury trial in August 2010, the District was found not negligent. Barton appeals, arguing that the superior court should not have excluded Vong's testimony and that doing so was prejudicial to Barton's case. We conclude that although it was error to exclude Vong's testimony, the error was harmless.
In the summer of 2007, an Astroturf field was constructed for the Barrow High School football team. The field was a regulation high school football field, measuring 120 yards long (including end zones) by about 160 feet wide. A "skirt" of Astroturf approximately 10-12 feet wide bordered the field along all of the sidelines, and the field was surrounded by orange plastic construction fencing in August 2007.
On August 17, 2007, the Barrow football team played its first game on the new field, and over 3,000 people attended. According
Barton sued the North Slope Borough School District on March 30, 2009, alleging that the District had negligently designed, "set up," operated, and supervised the Barrow High School football field, and that the District had failed to provide adequate barriers or adequate warnings during the August 17 football game. Barton sought damages for the injuries she suffered as a result of the collision. The District answered on June 8 and filed a motion for summary judgment on December 31, 2009, arguing that it "owed no duty to protect Barton, a spectator, from the open and obvious risk of being struck by players while standing near the sidelines during a football game." Barton responded on January 21, 2010. Summary judgment was denied on April 5, with the superior court noting that "Alaska case law does not specifically address the liability of landowners to spectators of sporting events."
In advance of trial, Barton disclosed two retained experts: Michael Russell, a "safety expert," and Juliet Vong, a "landscape architect expected to testify about design of the high[]school football field." Barton also disclosed an "expert report" from Vong, in the form of a letter from Vong to Barton's counsel, on June 2, 2010. Attached to Vong's letter was an excerpt from a publication entitled Sports Fields: A Manual for Design, Construction and Maintenance (Sports Fields or the manual). The letter stated:
The Sports Fields excerpt included the following language:
Barton filed a final witness list over a month after disclosing Vong's expert report, and it included two relevant experts: Russell and Vong.
The District filed a motion in limine to exclude Vong's report and testimony, contending that Vong offered no expert opinion that would assist the jury and that her expert report failed to comply with the requirements of Alaska Civil Rule 26(a)(2)(B). The District argued that Vong "simply states that when she designs a football field she uses a particular book which has some design criteria," contending that this was not an admissible expert opinion. In addition, the District stated that Vong's letter did not meet the criteria for an expert report under Civil Rule 26(a)(2)(B) because it did not contain an expert opinion nor the "data or other information" used to form that opinion. The District
Barton responded, maintaining that Vong had offered an opinion—that Sports Fields "is a reasonably relied upon authority"—and would testify "about the standard for design and the reasons for those standards as described... [in] the manual." In this way, Barton explained, "Vong's expert testimony would be very similar to the court taking judicial notice of the manual." Barton also contended that Vong's letter was a sufficient expert report, explaining that "because [Vong] will be used for the limited purpose of identifying the manual ... an in-depth report would have been wasteful and unnecessary."
The District replied, responding that if Vong intended to testify that Sports Fields was a learned treatise or an industry standard, Vong's letter had not expressed those opinions and that Vong could not add those opinions after the deadline for filing expert reports had passed.
The superior court granted the District's motion to exclude Vong's report and testimony, concluding that it was not admissible expert testimony under Alaska Evidence Rule 702. The superior court noted that Vong "does not articulate that [Sports Fields] is the industry standard for construction of athletic fields, nor does her report give any guidance on how she would apply the manual to the facts of this case in order to assist the jury." Therefore, the superior court determined, "the relevance of [Vong's] testimony is low." The superior court also explained that while statements from learned treatises may sometimes be read by experts into the record as a hearsay exception under Evidence Rule 803(18), generally "learned treatises are not admissible substantive evidence" because "there is a need for the expert to guide the jury on the use of the treatise." The superior court found that neither Vong's report nor Barton's intended use of Sports Fields provided such guidance.
Barton filed a motion for reconsideration. Barton argued that "[a] central issue for the jury to consider will be the appropriateness of the dimensions of the area between the sidelines and the barrier as well as the exclusion of spectators ... from the area." Because of this, Barton reasoned, Vong's expert report—which attached the "football field chapter" of Sports Fields and "indicated [Vong's] belief that the dimensions and reasons for those dimensions identified in the chapter were appropriate dimensions for designing a high school football field"—contained an opinion that was "directly relevant and helpful for the jury in understanding the safety of the ... District's design and dimensions for the barrier at issue and the adequacy or inadequacy of the ... District's policy regarding spectators in the area between the sidelines and the barrier." Barton argued that "[a]pplying the [m]anual's dimensions to a high school field is an important, relevant opinion" and that Vong should be permitted to provide that opinion.
The superior court held a pre-trial conference. During the conference, Barton's counsel asked the court to take judicial notice of the subsection of Sports Fields attached to Vong's letter. The superior court declined to do so, and it denied Barton's motion for reconsideration without comment that same day. The case proceeded to a jury trial. The jury found that the District was not liable. Barton appeals from the final judgment in favor of the District.
We review the superior court's decision to admit or exclude evidence, including expert witness testimony, for an abuse of discretion.
Barton makes a single argument on appeal—that the superior court's exclusion of Vong's testimony was an abuse of discretion.
Alaska Rule of Evidence 702(a) controls the admissibility of expert testimony.
Expert testimony may be based on either: (1) technical or scientific research and testing; or (2) practical experience in the relevant field.
We have previously determined that expert witness testimony is admissible in the context of determining negligence or other breaches of a particular duty of care.
Barton argues that the "primary issue for the jury in determining [the District's] negligence" was "[w]hether the [] District should have kept a run-off area clear of spectators." Barton maintains that Vong would have testified: (1) that Sports Fields was a reliable authority; (2) that Sports Fields's prescribed dimensions for a run-off area were applicable to high school football fields; and (3) that subsection 12.2b of Sports Fields, entitled Safety Issues, identified the appropriate dimensions and explained the purposes of a run-off area. Barton emphasizes the importance of "[t]he opinion of a landscape architect with experience designing sports fields that the Manual dimensions were applicable for a high school field" and adds that Vong's testimony "would have educated the jurors about the known risk of football players running out of bounds and colliding with objects, including spectators, allowed too close to the side lines." Barton maintains that "[d]eficiencies in the basis of [Vong's] opinion should have [gone] to weight and not admissibility."
The superior court determined that Vong's proposed testimony was of low relevance because Vong did not state in her report that "the manual was the industry standard for construction of athletic fields" and did not explain how she would have used Sports Fields in this case. The District urges us to uphold the superior court's decision, arguing that Vong did not state "that the Manual represents the applicable standard of care in the industry," and that Vong would not have "offered any opinions regarding the District's conduct [or] whether or not the Barrow football field complied with the Manual's design standards." The District asserts that "the problem with [Vong's] proposed testimony was that she failed to offer any opinions whatsoever, deficient or otherwise."
We disagree. Rule 702 reflects Alaska's liberal standards for allowing evidence that might appreciably help the jury make a decision. The rule allows experts to testify "in the form of an opinion or otherwise."
In Barton's opposition to the District's motion in limine to exclude Vong's testimony, Barton stated that Vong's "role is to relate
When the trial court has erroneously excluded evidence, a party must show that the error was harmful or prejudicial before we will reverse the trial court.
Barton argues that her case "suffered immeasurably because of the preclusion of her landscape architect."
The exclusion of Vong left Russell as Barton's only expert. At trial, Barton tried, with limited success, to elicit from Russell an explanation
To the extent that Russell's testimony did not overlap with Vong's proposed testimony, Barton's counsel had an opportunity to ask more tailored questions to elicit the desired testimony about the required dimensions of the run-off area. Barton argues that Vong would have testified (1) that Sports Fields was a reliable authority; (2) that Sports Fields's proscribed dimensions for a run-off area were applicable to high school football fields; and (3) that subsection 12.2b of Sports Fields, entitled Safety Issues, identified the appropriate dimensions and explained the purposes of a run-off area. Russell did say that he used Sports Fields, although he may not have featured it as prominently in his testimony as Vong would have. Barton's counsel also failed to use Sports Fields while cross-examining the District's expert witness. While Barton's counsel never asked Russell whether these dimensions were appropriate for high school football, Russell did say "if you put people on the sidelines and you've got a team of 12 people at 180 ... pounds apiece, it's—it's like a moving wall."
More importantly, the District's attorney acknowledged that professional fields use a 25- to 30-foot run-off area, both in cross-examination and in closing.
For the reasons described above, we AFFIRM the superior court's entry of judgment for the District.
While the District is correct that a trial court has discretion to exclude evidence "where there has been non-compliance with discovery or the pre-trial order," there is no indication in the superior court's order that its decision to exclude Vong's testimony was in response to any non-compliance with discovery procedures. Rather, the superior court based its ruling on its interpretation of Evidence Rules 702(a) and 803(18) and on relevance grounds. Because the record shows that the superior court did not exclude Vong's testimony due to non-compliance with discovery requirements, there is no basis for us to review the superior court's order for abuse of discretion on this ground.