BOLGER, Justice.
Tommie Patterson's 1997 Ford Explorer was struck from behind when he braked to avoid a car stalled in his lane of travel on Gambell Street in Anchorage. He sued the owner of the stalled vehicle and subpoenaed her for trial, but she refused to appear. We conclude that the superior court should have issued a warrant or an order to show cause to compel the appearance of this party. In addition, the superior court instructed the jury on Patterson's products liability claim against Ford Motor Company, but this claim was erroneously omitted from the special verdict form. We reverse the superior court's judgment and remand for a new trial.
Early in the morning of December 11, 2006, Sheila Cox was traveling south on Gambell Street in Anchorage when her Dodge Neon ran out of gas. Cox left her car in the road while she went to a nearby gas station. It is disputed whether Cox pulled over to the right or turned on her warning lights after she stopped.
At about the same time, Tommie Patterson was also traveling south on Gambell Street, returning home from work. He was driving his 1997 Ford Explorer behind a truck in the right southbound lane. When he passed Fifteenth Street, the truck signaled and merged into the left lane. Immediately afterwards, Patterson saw Cox's car stopped in the right
When Cox returned with gas, she noticed that two SUVs had collided immediately behind her car. She left the scene of the accident after she observed that her own car had not been damaged.
Patterson filed suit against Cox and Ford Motor Company in the Anchorage superior court.
After receiving several adverse rulings during pre-trial motion practice, Patterson filed multiple motions asking Superior Court Judge William F. Morse to recuse himself. Judge Morse denied all of these motions. His decision not to recuse himself was reviewed and upheld by two other superior court judges.
Patterson's claims against Cox and Ford were tried in front of a jury from August 7 to August 17, 2012. Although Patterson sought to have Cox testify, Cox disobeyed a subpoena and never appeared. Several times during trial, Patterson asked the superior court to address Cox's failure to appear. When the court mentioned that it could "sen[d] a trooper out and have her arrested," Patterson seemed to approve, and he became frustrated when the court decided not to issue a bench warrant. He insisted that "if Ms. Cox is under subpoena, she should appear."
In the end, the superior court decided to give a curative jury instruction as a remedy for Cox's failure to appear:
Patterson did not object to this instruction.
At the end of trial, the superior court submitted instructions and a special verdict form to the jury. The verdict form asked the jury to answer the following questions regarding liability:
The jury unanimously answered both questions "No." Based on the jury's verdict, the superior court entered judgment in favor of the defendants. Patterson now appeals.
Patterson argues on appeal that "[t]he Superior Court's instructions to the jury were probative, confusing, and misunderstood; and were designed in favor of the Appellees to prejudice Appellant." We normally review jury instructions de novo.
Patterson argues that the superior court "erred by never instructing the jury on product defect or manufacture defect of the seat and seatbelt." Although the superior court did in fact instruct the jury on products liability, our review of the record reveals that the special verdict form mischaracterized the law applicable to this case. In his complaint, Patterson alleged that, after Rutledge's car collided with his vehicle, his "seatbelt failed causing [him] severe bodily injury." Because the pleadings of pro se litigants are held to a less stringent standard than those of lawyers,
Patterson requested a verdict form that included questions regarding his products liability claim. But the superior court adopted a form similar to Ford's proposal. With respect to Ford's liability, the verdict form asked the jury only: "Was defendant Ford Motor Company negligent?" The form included no question about strict products liability. Therefore, even if the jury would have found for Patterson based on a strict products liability theory, the form provided no opportunity for it to do so. For that reason, the special verdict form was plainly erroneous.
Of course, if no reasonable jury could have found for Patterson on his products liability claim, the superior court's omission would be harmless.
On appeal, Patterson renews his argument that the superior court should have issued a bench warrant to compel Cox to appear at trial. We review the application of rules of procedure
Alaska Rule of Civil Procedure 90(b) provides
The failure of a witness to obey a subpoena is a contempt of court.
Patterson did not submit a formal motion requesting that the court hold Cox in contempt. But when the court told him that it could have Cox arrested and brought to the courthouse, Patterson approved of that suggestion. And when the court indicated that it was not inclined to provide that remedy, Patterson expressed frustration. He insisted that "if Ms. Cox is under subpoena, she should appear." Because Alaska courts "relax some procedural requirements" in cases involving pro se litigants,
Cox argues that any error was harmless because the superior court permitted the introduction of a recorded statement made by Cox before trial and issued a curative jury instruction. But the recorded statement was very favorable to Cox. And it is at best speculative that the curative instruction — which provided that the jury "may" draw an adverse inference from the fact that Cox did not testify — had the same effect on Cox's credibility as compelling her to testify in front of the jury. Live testimony is especially important where, as here, the resolution of factual issues depends on the relative credibility of the witnesses.
Because the failure to issue a bench warrant to secure Cox's presence at trial was prejudicial error, we reverse and remand Patterson's claims against Cox for a new trial.
Patterson also argues that the trial judge was biased against him and should have been disqualified from presiding over his case.
Patterson alleges that the trial judge represented him in 1982, when the trial judge was at the public defender's office, and that this prior representation disqualified him from presiding over this case.
Patterson also claims that the trial judge displayed "racial hate" for Patterson, both when the trial judge allegedly represented Patterson as a public defender and during this trial. And he alleges that the trial judge was involved in a "conspiracy" with counsel for Ford and was taking bribes from the defendants. But Patterson offered no evidence to substantiate these allegations, and the record reveals none.
Patterson also alleges that the trial judge's bias was evident from his "relentless favoritism in granting motions and pleadings for" Ford and Cox. "But a ruling against a party, even an incorrect ruling, is not evidence of judicial bias."
Finally, Patterson argues that the trial judge should have recused himself because his participation in the trial created the appearance of bias.
The trial judge acknowledged that his continued participation in the case "may raise concerns about the appearance of impropriety in that reasonable persons could question whether I could remain impartial in light of such serious allegations by Patterson." But requiring a judge to recuse himself merely because one party has made extreme and baseless accusations against that judge would make it easy for a persistent litigant to secure a recusal that would not otherwise be required. And, as the trial judge noted, to require recusal under these circumstances would be to reward "intemperate and unfounded behavior." Therefore, the trial judge's recusal was not necessary to avoid the appearance of impropriety.
We REVERSE the superior court's judgment and REMAND for a new trial.
STOWERS, Justice, not participating.