source: Caselaw Access Project

author: VOIGT, Justice. LEHMAN, Justice,

license: Public Domain

text:
    2004 WY 7
    Delores J. REICHERT, Petitioner, v. James A. PHIPPS and Gary L. Lanphier, Respondents.
    No. 02-159.
    Supreme Court of Wyoming.
    Feb. 11, 2004.

      Representing Petitioner: Richard Wolf of Wolf & Tiedeken, LC, Cheyenne, Wyoming; and Jerry M. Smith of Sigler & Smith, Tor-rington, Wyoming.
    Representing Respondents: John A. Sun-dahl and Brian J. Hanify of Sundahl, Power, Kapp & Martin, Cheyenne, Wyoming; and J. Kent Rutledge and Kevin C. Cook of La-throp & Rutledge, P.C., Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] The petitioner, in a civil negligence action, has asked this Court to review the trial court’s order prohibiting her from offering evidence at trial that the automobile collision at issue caused the fibromyalgia from which she suffers. Finding an abuse of discretion, we reverse.

ISSUE

[¶ 2] Did the trial court abuse its discretion in excluding expert testimony that the automobile collision caused, contributed to, or triggered fibromyalgia?

FACTS

[¶ 3] On August 26, 1996, the petitioner, Delores J. Reichert, was injured in an automobile accident that she claims was caused by the respondents, James Phipps and Gary Lanphier. She has filed a civil action in the district court in Goshen County, wherein she seeks recovery from the respondents for her injuries. The petitioner has designated two of her treating physicians, Robin R. Ockey, M.D., and Robert Monger, M.D., to testify that she suffers from fibromyalgia (FM) and that the FM was caused by the automobile accident. FM is a chronic musculoskeletal pain syndrome more fully described as follows:

FM is a syndrome of widespread pain, decreased pain threshold, and characteristic symptoms, including non-restorative sleep, fatigue, stiffness, mood disturbance, irritable bowel syndrome, headache, par-esthesias, and other less common features. Widespread pain has generally been defined by the number of body regions involved ... or by a pattern of pain complaint that involves both sides of the body, upper and lower body, and axial skeleton. Decreased pain threshold (tenderness) is indicated by the proportion of specific sites that elicit complaints of pain on palpation.

Frederick Wolfe, The Fibromyalgia Syndrome: A Consensus Report on Fibromyal-gia and Disability, 23 Journal of Rheumatol-ogy 534, 534 (1996) (footnotes omitted).

[¶ 4] In response to the petitioner’s designation of expert witnesses, the respondents filed a Motion in Limine to Exclude Fibromyalgia Causation Claims and Motion for Determination Under Rule 56(d) of the Wyoming Rules of Civil Procedure. The respondents do not contend that FM is not a recognized syndrome nor do they suggest that the petitioner does not suffer from FM. Rather, their position is that there is insufficient scientific knowledge to support the theory that FM can be caused by physical trauma. The trial court agreed with the respondents and granted their motion. In August 2002, we granted the petitioner’s Petition for Writ of Review as to that question.

STANDARD OF REVIEW

[¶ 5] Trial court rulings on the admissibility of evidence are reviewed for an abuse of discretion. Clark v. Gale, 966 P.2d 431, 435 (Wyo.1998). The.ultimate issue is whether the trial court reasonably could have concluded as it did or whether it exceeded the bounds of reason under the circumstances. Id. (quoting Hilterbrand v. State, 930 P.2d 1248, 1250 (Wyo.1997)). This standard applies to a trial court’s exclusion of expert testimony. Chapman v. State, 2001 WY 25, ¶ 8, 18 P.3d 1164, 1169 (Wyo.2001); Bunting v. Jamieson, 984 P.2d 467, 470 (Wyo.1999).

[¶ 6] Expert testimony is admissible if it meets the requirements of W.R.E. 702:

If scientific, technical, or other specialized knowledge will assist the ti'ier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

[¶ 7] The United States Supreme Court has described a “gatekeeper” function for the trial court under Rule 702, whereby the reliability of proffered expert testimony is tested. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). In Bunting, we adopted the Daubert analysis and made clear that it applies to the “opinions of a treating physician based on medical knowledge within the physician’s specific area of expertise.” Bunting, 984 P.2d at 471.

The primary goal of Daubert’s gatekeep-ing requirement “is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

Id. (quoting Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir.1999)).

[¶ 8] In Bunting, we adopted Dau-bert’s two-part test: first, the trial court is to determine whether the methodology or technique used by the expert is reliable, and second, the trial court must determine whether the proposed testimony “fits” the particular case. Bunting, 984 P.2d at 471. We also noted with .approval the non-exclusive criteria that have been utilized to guide trial courts in making that first determination:

1) whether the theory or technique in question can be and has been tested; 2) whether it has been subjected to peer review and publication; 3) its known or potential rate of error along with the existence and maintenance of standards controlling the technique’s operation; ... 4) the degree of acceptance within the relevant scientific community[;] ... [5) ] the extensive experience and specialized expertise of the expert[;] ... [6) ] whether the expert is proposing to testify about matters growing naturally and directly out of research [he has] conducted independent of the litigation; and [7) ] the non-judicial uses to which the method has been put[.]

Id. at 472. As to the second part of Dau-bert’s two-part test — whether the expert testimony “fits” the particular facts of the case — we concluded in Bunting that this is a question of relevance that incorporates the concept of “helpfulness” found in W.R.E. 702. In other words, “ ‘the expert’s opinion must relate to an issue that is actually in dispute and must provide “a valid scientific connection to the pertinent inquiry.’”” Bunting, 984 P.2d at 472 (quoting Graham v. Playtex Products, Inc., 993 F.Supp. 127, 130 (N.D.N.Y.1998) and Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L.Rev. 1345, 1351 (1994)). ’

[¶ 9] Finally, we also recognized in Bunting, 984 P.2d at 471-73, three interrelated considerations that should be kept in mind by a trial court when performing the Daubert gatekeeping function. First, the trial court may consider one or more of the criteria mentioned in Daubert, but those factors may not all be helpful in every case, so the test must remain flexible enough to give the trial court broad latitude in determining reliability. Second, expert testimony must be based upon reliable methodology, but it need not be so persuasive as to meet the proponent’s burden of proof on an issue. “Shaky” but admissible evidence can be tested through traditional means, such as cross-examination, contrary evidence, and careful jury instruction. And third, a trial court’s exclusion of evidence as unreliable is potentially inconsistent with the jury’s duty to evaluate witness credibility and to assign evi-dentiary weight. To avoid usurping the jury’s role, the trial court should limit its assessment to the soundness of the scientific principles and the propriety of the methodology and should not concern itself with the scientific validity of the conclusions offered by the expert.

DISCUSSION

[¶ 10] We begin this discussion with a reminder of what it is this Court is deciding. We are not deciding whether trauma can cause FM, or even whether, as a general proposition, there is sufficient scientific foundation for the theory to allow juries to decide the issue as a question of fact. Rather, under an abuse of discretion standard, we are reviewing a district court’s determination concerning a particular motion in limine. For that reason, cases from other jurisdictions that have considered FM as an element of damages are informative, but are not of great precedential value because different materials were available at the motion hearings in those eases. The question before us is limited to whether this particular trial court, given the evidence and arguments at the time, reasonably could have concluded as it did. The United States Court of Appeals for the Tenth Circuit has described the narrowness of such review as follows:

[W]e note that the scope of our review is quite narrow: we may reverse the district court’s ruling only if we conclude that it abused its discretion in applying Daubert to exclude opinions of the Hollanders’ experts. Because the district court has discretion to consider a variety of factors is [sic.] assessing reliability under Daubert, and because, in light of that .discretion, there is not an,extensive body of appellate case law defining the criteria for assessing scientific reliability, we are limited to determining whether the district court’s application of the Daubert [sic.] manifests a clear error of judgment or exceeds the bounds of permissible choice in the circumstances. See McEwen [v. City of Norman, Okla.,] 926 F.2d [1539,] 1553-54 [(10th Cir.1991) ] (discussing appellate review for an abuse of discretion). Thus, when coupled with this deferential standard of review, Daubert’s effort to safeguard the reliability of science in the courtroom may produce a counter-intuitive effect: different courts relying on ... essentially the same science may reach different results. See generally Federal Judicial Center, Reference Manual on Scientific Evidence 27 (2d ed.2000) (observing that, in light of the abuse of discretion standard of review ■for Daubert determinations of- reliability, “in theory judges are free to select different procedures and apply different factors to a particular expert or type of expertise than their colleagues do in the same district or circuit” and that “[a]s a consequence, similar cases could be resolved differently on the basis of inconsistent determinations about admissibility”); see also Brasher [v. Sandoz Pharmaceuticals Corp.], 160 F.Supp.2d [1291] at 1298 n. 17 [ (N.D.Ala.2001) ] (observing that the Eighth Circuit’s decision in Glastetter [v. Novartis Pharmaceuticals Corp.], 252 F.3d [986] at 989-92 [ (8th Cir.2001) ], affirming the exclusion of Parlodel evidence as unreliable “does not necessarily [establish] that an inconsistent holding by this court would constitute an abuse of discretion”).

Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1206-07 (10th Cir.), cert. denied, 537 U.S. 1088, 123 S.Ct. 697, 154 L.Ed.2d 632 (2002).

[¶ 11] The parties supplied the trial court with voluminous materials to assist it in ruling on the motion. Based on those materials, the respondents presented to the trial court a detailed argument as to why the proposed testimony of Drs. Monger and Ock-ey was inadmissible under Daubert scrutiny. Their essential points can be summarized as follows:

1. Dr. Monger’s diagnosis was based on the petitioner’s self-reporting, and Dr. Monger at first ruled out FM because petitioner’s symptoms were not consistent with FM.

2. Dr. Monger admitted that there is no evidence that a single event causes FM, but that many physical and emotional stressors may be involved.

3. Dr. Monger admitted that the etiology and pathogenesis of FM are unknown to science, and that there are no controlled studies that link FM to trauma.

4. Dr. Monger has no specialized training, has taken no specialized classes, has authored no articles, and has participated in no studies or research involving FM. Neither has he even read the seminal “Consensus Report” on FM.

5. When asked if he was “aware of any specific scientific standards for determining whether causation exists in the medical literature,” Dr. Monger replied:

No. It’s a very controversial syndrome. And I believe the problem rests primarily in that there’s no objective test for fibro-myalgia. The diagnosis rests on patient’s self-reported symptoms. There’s no blood test, there’s no x-ray, there’s no anything else. So it’s controversial. Because you have to rely on the patient to tell you how they’re doing, if they hurt, what caused their symptoms and so forth.

6. Dr. Ockey’s diagnosis was also based exclusively on the petitioner’s self-reporting.

7. Dr. Ockey has never participated in any research studies concerning FM and he has not read the “Consensus Report.”

8. Dr. Ockey admitted that neither the cause nor the pathogenesis of FM is known in medicine.

9. Dr. Ockey admitted that he has no internal studies or monitoring to keep track of FM patients.

10. The medical literature evidences the lack of a scientific foundation for the theory that trauma may cause FM. For example:

a. Dan Buskila, M.D. and Lily Neu-mann, PhD., Musculosekletal Injury as a Trigger for Fibromyalgia/PostTraumatic Fibromyalgia, 104,105 (Israel 2000):
A traumatic incident has been suggested as a possible etiologic factor relating to the onset of FM. Overall data from the literature are insufficient to indicate whether causal relationships exist between trauma and FM. The absence of evidence, however, does not mean that causality does not exist; rather, it posits that appropriate studies have not been performed.
b. Dan Buskila, Lily Neumann, Genady Vaisberg, Daphna Alkalay, Frederick Wolfe, Increased Rates of Fibromyalgia Following Cervical Spine Injury, 40 Arthritis & Rheumatism 446 (1997) (footnotes omitted):
Fibromyalgia syndrome (FMS) is a chronic, painful musculoskeletal disorder of unknown etiology. A growing body of epidemiologic evidence has shown it to be relatively common, occurring in up to 2% of the general population. Despite extensive research, the etiology and pa-thophysiology of FMS are still unclear. Disturbances in stage 4 sleep, hormonal and infectious factors, and stressful conditions have been suggested as possible progenitors. Although equivocal, some evidence has suggested that biomechanical disturbances in the cervical spine may play a role in the pathogenesis of FMS. Evidence that trauma can cause FMS comes from a few case series or case reports and is insufficient to establish causal relationships.
c. Wolfe, supra, 23 Journal of Rheuma-tology at 534 (footnotes omitted):
FM in the setting of work disability or compensation has been the subject of a number of reports. While the association between work disability or compensation and FM is well established, data regarding causality are largely absent. The clinical dilemma, whether an injury or workplace stress caused the patient’s FM, a retrodictive (or It Did) causal proposition can rarely be determined to be certainly true or certainly false. Evidence that trauma can cause FM, a potential (or It Can) causal proposition, comes from a few case series or case reports and is insufficient to establish causal relationships. That trauma might cause FM sometimes, a predictive (or It Will) causal proposition, can only be addressed by epidemiological studies that measure the risk of potential exposures on the development of FM. Epidemiologic studies of trauma and FM needed to address potential or predictive causality are currently not available.

11. No leading case with precedential value has ruled admissible expert testimony to the effect that trauma causes FM. See Black, 171 F.3d 308.

[¶ 12] In their appellate briefing, the respondents have reiterated the foregoing arguments and they have chronicled the trial court’s painstaking application of the Dau-bert principles in rendering its decision. In addition, the respondents have referenced the deposition of their designated expert, John Rice, M.D., a Duke University Medical Center associate professor who has specialized in the study of FM, who participated in the conference resulting in the “Consensus Report,” and who is of the opinion that the petitioner’s FM symptoms were not caused by the automobile accident. Finally, the respondents have pointed out what they consider to be a major flaw in the opinions of the petitioner’s experts: for the “differential diagnosis” methodology utilized by Drs. Ockey and Monger to be reliable, one must be able not only to “rule out” other causes, but to “rule in” the alleged cause:

[W]e conclude that the district court did not abuse its discretion. In many of the decisions in which a differential diagnosis has been deemed reliable, the party relying on the diagnosis has offered independently reliable evidence that the allegedly dangerous drug or substance had harmful effects. See, e.g., Zuchowicz v. United States, 140 F.3d 381, 385-87 (2d Cir.1998) (affirming admission of differential diagnosis based in part on scientific articles regarding the effects of a drug); Kennedy v. Collagen Corp., 161 F.3d 1226, 1228-30 (9th Cir.1998) (holding that the district court abused its discretion in excluding expert opinion based on differential diagnosis when the diagnosis was supported by scientific and clinical studies regarding the connection between collagen and autoimmune disorders). That is not the case here. In order to “rule in” Parlodel as a scientifically plausible cause of Ms. Hollander’s stroke, the Hollanders’ experts would need to present reliable evidence that the drug can cause strokes, and for the reasons we have discussed, the district court did not abuse its discretion in concluding that the experts did not do so. See Glastetter [v. Novartis Pharmaceuticals Corp., 252 F.3d 986] at 989 [(8th Cir.2001) ] (affirming the district court’s exclusion of a differential diagnosis); cf. Siharath [v. Sandoz Pharmaceuticals Corp.,] 131 F.Supp.2d [1347] at 1362-63 [ (N.D.Ga. 2001) ] (“[A] fundamental assumption underlying this method is that the final, suspected ‘cause’ remaining after this process of elimination must actually be capable of causing the injury. That is, the expert must ‘rule in’ the other suspected cause as well as ‘rule out’ other possible causes. And, of course, expert opinion on this issue of general causation must be derived from scientifically valid methodology.”)

Hollander, 289 F.3d at 1210-11. In other words, a physician cannot, by ruling out other causes, conclude that an automobile accident caused a patient’s FM, where there is no scientific basis for the conclusion that physical trauma can cause FM.

[¶ 13] The materials presented by the petitioner in opposition to the respondents’ motion are included in the listings in footnotes 2 and 3 hereinabove. Based on those materials, the petitioner countered the respondents’ position with a detailed argument as to why Drs. Monger and Ockey should be allowed to testify. The main points of that argument can be summarized as follows:

1. Dr. Monger is a board-certified rheu-matologist, which is the area of expertise in which FM is treated, and he has treated the petitioner for years.

2. Dr. Monger made a complete differential diagnosis of the petitioner’s FM symptoms and ruled out all causes other than physical trauma from the automobile accident.

3. In reaching his conclusion that the automobile accident had caused the petitioner’s FM, Dr. Monger considered her pre- and post-accident medical history, as well as ease reports of other persons “who develop fibro-myalgia after trauma such as a motor vehicle accident.”

4. Although Dr. Ockey is not a rheuma-tologist, there is considerable “overlap” between the chronic pain portion of rheumatol-ogy and his specialty, which is physical medicine and rehabilitation.

5. Eighty to ninety percent of Dr. Ock-ey’s practice deals with chronic pain, and he sees a significant number of patients suffering from FM.

6. After a complete differential diagnosis of the petitioner’s FM symptoms, Dr. Ockey diagnosed their cause as being physical trauma from the automobile accident. That diagnosis was based on the petitioner’s reporting, his experience over the years, and medical literature.

7. Recent medical literature contains support for the theory that physical trauma can cause FM. For example:

a. Fibromyalgia Syndrome, Arthritis Foundation at 7 (undated pamphlet):
Many different factors, alone or in combination, may trigger fibromyalgia. For example, a number of stresses— such as illness, emotional trauma, physical trauma or hormonal changes — may lead to the generalized pain, fatigue and non-restful sleep that characterize fibro-myalgia.
Physical or emotional trauma can trigger fibromyalgia. For example, an infection, a case of the flu, or a car accident could lead to this syndrome. People with fibromyalgia may become inactive and anxious about their health, further aggravating the disorder.[]
b. Don L. Goldenberg, M.D., Pathogenesis and Treatment of Fibromyalgia, 9 Up to Date (2001): “There is no evidence that a single event ‘causes’ fibromyalgia. Rather, many physical and/or emotional stres-sors may trigger or aggravate symptoms. These have included certain infections, such as a viral illness or Lyme disease, or physical trauma.”
c. Robert M. Bennett, The Fibromyal-gia Syndrome, Textbook of Rheumatology 511, 513 (5th ed.) (emphasis in original):
Patients frequently attribute an “event” to the onset of their symptoms. Attribution and rationalization are common human traits and correlation does not equal causation. Events that have been linked to the onset of fibromyalgia include flu-like illness, human immunodeficiency virus (HIV) infection, parvo-virus infection, Lyme disease, toxic oil syndrome, persistent stress, chronic sleep disturbance, and physical trauma.

d. Buskila and Neumann, supra, at 106 Cquoting D.J. Clauw and G.P. Chrousos, 4 Chronic Pain and Fatigue Syndromes 134-53 (1997)) (footnotes omitted):

Despite intensive research, major gaps in our understanding of the pathogenesis and etiology of FM still remain. Environmental triggers, including various emotional, immune, and physical trauma, have been implicated in the development of FM. Clauw and Chrousos emphasize that FM can be initiated by many triggers, all of which fall into the general category of “stressors.” Thus, FM may be triggered or worsened by physical trauma, such as [motor vehicle accidents].

e. Buskila, Neumann, Vaisberg, Alka-lay, Wolfe, supra, 40 Arthritis & Rheumatism at 446: “FMS [fibromyalgia syndrome] was 13 times more frequent following neck injury than following lower extremity injury. All patients continued to be employed, and insurance claims were not increased in patients with FMS.”

f. Bruce Freundlich and Lawrence Leventhal, The Fibromyalgia Syndrome, Primer on Rheumatic Diseases 124, 125 Arthritis Foundation:
Muscular strain of the upper torso from motor vehicle accidents or sports injuries may produce aching and stiffness that simulates FMS with a limited number of tender points. Although FMS may initially be absent following an injury, these limited symptoms may persist causing disturbed sleep, and FMS may develop as a secondary process over time.

[¶ 14] In her appellate briefing, the petitioner has buttressed her trial court position with two particular points. First, the petitioner contends that differential diagnosis “is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable cause is isolated.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.1999). See also Heller v. Shaw Industries, Inc., 167 F.3d 146, 156 (3rd Cir.1999). Where an expert’s opinion is based on his treatment of the patient, the patient’s medical history, the physician’s training and experience, and the use of differential diagnosis, a lack of textual authority for his opinion goes to the weight, not the admissibility, of the testimony. McCulloch v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2nd Cir.1995). See also Alder v. Bayer Corp., AGFA Div., 2002 UT 115, 61 P.3d 1068, 1083-85 (Utah 2002).

[¶ 15] Next, the petitioner points out that the trial court did not appear to consider criticism of the “Consensus Report” found in Muhammad B. Yunus, Robert M. Bennett, Thomas J. Romano, I. Jon Russell, et al., Fibromyalgia Consensus Report: Additional Comments, 3 Journal of Clinical Rheumatolo-gy 324, 324-25 (1997) (quoting D.L. Sackett, W.M.M. Rosenberg, J.A.M. Gray, R.B. Haynes, W.S. Richardson, Evidence Based Medicine: What It Is and What It Isn’t (1996)) (footnotes omitted and emphasis in original):

With regard to injury and FMS [fibro-myalgia syndrome], the Report emphasizes scientific causality and becomes involved in the jargons of retrodictive and predictive causal propositions. Causal propositions are rarely established with absolute certainty in the realm of medicine. An alternative (and better known) model is the consideration of consistency of association, strength of association, dose-response relationship, and biologic plausibility.... Additionally, the concept of evidence-based medicine integrate both data-based information and astute clinical observations. The comments of Sackett et al., on evidence-based medicine is worth noting: “Good doctors use both individual clinical expertise and the best available external evidence, and neither alone is enough. Without clinical expertise, practice risks becoming tyrannized by evidence....”
In the context of a legal setting (where the Consensus Report is likely to be used), causality entails only 51% certainty, usually stated in terms of reasonable medical probability. Based on a consistent clinical pattern, case-control or descriptive studies, and biologic plausibility of central nervous system plasticity, it seems more than 51% likely that trauma does play a causative role in some FMS patients, as agreed by other independent observers. That trauma can cause localized or regional muscu-loskeletal pain is not arguable, rather the question is: can regional pain and tenderness become widespread? The biologic plausibility of such a spread of pain and tenderness is now supported by changes in the central nervous system (neuroplasticity), as well documented in animals (that have no obvious secondary gain!) and in humans.

[¶ 16] The trial court issued a four-page decision letter upon which the order granting the motion in limine was based. The trial court noted Wyoming’s adoption of Daubert in Bunting, and then applied the four nonexclusive Daubert tests to the facts at hand:

The premise that trauma causes fibromyal-gia has not been adequately tested. Dr. Monger acknowledged that there are no controlled studies that connect fibromyal-gia to trauma. Dr. Monger said he knew of some reports where fibromyalgia occurred after trauma, but apparently those were anecdotal reports rather than statistically valid studies.
Dr. Ockey identified a study by Buskila as pointing to a causal connection, but had not read the study. Dr. Ockey agreed that “there are certain things associated with it (fibromyalgia), but the cause is not known.”
Medical literature indicates a lack of testing. D. Buskila, one of the scientists who conducted the study Dr. Ockey knew about, concludes that “evidence that ... trauma can cause FM comes from a few case series or anecdotal case reports.... (D)ata are insufficient to indicate whether causal relationships exist between trauma and FM.” Buskila and Neumann, Muscu-loskeletal Injury as a Trigger for Fibro-myalgia/Post>-Traumatic Fibromyalgia.
The peer review information presented to the Court indicates a controversy over traumatic cause of fibromyalgia, with a consensus report from many experts concluding that “epidemiological studies of trauma and FM needed to address potential or predictive causality are currently not available.... The cause(s) of FM are incompletely understood. There may be events reported by the patient as precipitating and/or aggravating, including physical trauma, emotional trauma, infection, surgery and emotional or physical stress.” The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability, Journal of Rheumatology 5.34-537, 1996.
The Plaintiff was unable to provide any study or peer review which concluded that trauma caused fibromyalgia. She provided a monograph from the National Fibro-myalgia Partnership, Inc., which states that “fibromyalgia syndrome often develops after a physical trauma.” That document states that trauma may cause physiological changes which in turn result in fibromyalgia. This information is insufficient to establish peer review support for the theory that trauma causes fibromyal-gia.
Plaintiff also points to a statement in the 1996 Consensus Report that physicians should consider the patient’s opinion along with collateral information in determining the relationship between fibromyalgia and trauma. This statement does not constitute peer review or general acceptance of the-proposition that trauma causes fibro-myalgia. To the contrary, it indicates that if a doctor must determine whether a causal relationship exists he/she must use non- - scientific information and methods.
No evidence established an error rate for any causation study results because no studies were presented. Calculating an error rate may be extremely difficult because a myriad of factors may contribute to fibromyalgia and because any physiologic basis for fibromyalgia is unknown.
The literature indicates that a causal connection between trauma and fibromyalgia is not generally accepted. Although scientists acknowledge the potential for a link, they consistently indicate that such a cause-effect connection has not been scientifically established.
Although the four Daubert factors are not exclusive, no other evidence gives scientific credibility to the theory that trauma from the accident caused fibromyalgia. Although both of Plaintiffs physicians offered an opinion that trauma did cause fibromyalgia, those opinions are based on subjective beliefs rather than on science.

(Emphasis in original.)

CONCLUSION

[¶ 17] The trial court concluded that the proffered opinions of Drs. Monger and Ockey lacked scientific reliability. Applying Dau-bert, the trial court found that the theory of a causal link between physical trauma and FM has not adequately been tested and has not been subjected to sufficient peer review. Further, there have been no controlled studies, so no error rate has been established. After examining the materials presented to it, the trial court determined that the controversy over trauma-induced FM evidenced a lack of general acceptance of the theory within the medical community. Consequently, the expert testimony was ruled inadmissible.

[¶ 18] There are, however, countervailing facts and principles that must be considered. Clearly, differential diagnosis is an accepted method of diagnosing FM. Furthermore, some medical experts believe that physical trauma can cause FM. In that sense, the proposed expert’s opinion cannot, be said to be novel, either in approach or in conclusion. Drs. Monger and Ockey are both well informed about FM, through training or experience, and both are the petitioner’s treating physicians, rather than litigation-inspired experts.

[¶ 19] It is appropriate at this juncture to revisit two of the considerations raised in Bunting, 984 P.2d at 471-73. First, expert testimony must be based on reliable methodology, but it need not be so persuasive as^ to meet the proponent’s burden of proof. Admissibility is just the first hurdle. Once admitted, expert testimony is subject to all the traditional means of testing evidence. And second, if the admissibility bar is raised too high, the court usurps the jury’s duty to evaluate the expert’s credibility and weigh the evidence. So long as the expert has rehable grounds for reaching his conclusion, his opinion is admissible, whether or not the court agrees with the expert’s conclusion. Bunting, 984 P.2d at 473; Heller, 167 F.3d at 156.

[¶ 20] In the instant case, the proffered expert opinions were based on the petitioner’s self-reported symptoms, filtered through the two doctors’ perceptions after years of experience with similar patients. The opinions were given in the overall context of a professional controversy over the link between physical trauma and FM, in which some experts take the position that there is, indeed, a causal connection. We conclude that, under these circumstances, the trial court abused its discretion in not allowing the jury to determine the weight to give the opinion testimony.

[¶ 21] We reverse and remand to the trial court for further proceedings consistent with this opinion.

LEHMAN, Justice,

dissenting.

[¶ 22] I agree with the majority’s recitation of relevant law but disagree with the reasoning used in reaching its ultimate determination given the facts and circumstances that exist. Accordingly, I respectfully dissent.

[¶23] I am in accord that the ultimate issue is whether the trial court reasonably could have concluded as it did or whether it exceeded the bounds of reason under the circumstances when it granted respondents’ motion in limine to exclude expert testimony. I also agree that when faced with such a determination, a trial court must act as a “gatekeeper” to determine the reliability of the proffered expert testimony by applying the flexible criteria set forth in Bunting v. Jamieson, 984 P.2d 467, 471-73 (Wyo.1999) (formally adopting in Wyoming the four nonexclusive tests to the facts at hand enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 2796-97,125 L.Ed.2d 469 (1993)).

[¶ 24] Perhaps most importantly, I embrace the proposition that a trial court must be given broad latitude in determining whether expert testimony is based upon reliable scientific methodology so as to make those conclusions offered by an expert admissible. Thus, as noted by the majority, quoting the United States Court of Appeals for the Tenth Circuit in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1206-07 (10th Cir.), cert. denied 537 U.S. 1088, 123 S.Ct. 697, 154 L.Ed.2d 632 (2002), our scope in reviewing such issues is very narrow— limiting our reversal of the trial court’s decision solely if we conclude that it abused its discretion in excluding expert testimony.

[¶ 25] Here, as admitted by the majority, the trial court was presented with voluminous materials to assist in its ruling on the motion and ultimately made a detailed and painstaking application of the Daubert principles before rendering its decision. Upon my review of the analysis expressed in its four-page decision letter, I simply cannot conclude that the trial court clearly abused its discretion in rendering its decision. To the contrary, the trial court, based on the specific materials provided, reasonably determined that the literature was insufficient to scientifically establish that a cause-effect connection exists between trauma and fibromyalgia (FM) and that, despite intensive research, major gaps in our understanding of the pathogenesis and etiology of FM remain.

[¶ 26] Furthermore, while I am not diametrically opposed to the utilization of “differential diagnosis” methodology by medical experts in rendering opinions on legal causation, I believe that such use must be carefully monitored. As disclosed by the majority, a fundamental assumption underlying this method is that the final, suspected “cause” remaining after this process of elimination is applied must actually be capable of causing the injury derived from scientifically valid methodology. In other words, the expert must be able to “rule in” the suspected cause, as well as “rule out” other possible causes based on an established scientific foundation. Upon my independent review, I conclude that the trial court did not unreasonably determine that such evidence was not presented in this case.

[¶ 27] Therefore, I would affirm the ruling of the trial court granting the motion in limine excluding the proffered expert testimony on the basis of its unproven scientific reliability.

      . The purpose of a motion in limine is to obtain the court’s pretrial ruling on the admissibility of evidence. W.R.C.P. 56(d) goes beyond that purpose to include the court's pretrial ruling on what facts are, and are not, in controversy.

      . The following published FM cases were cited to the trial court: Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065 (9th Cir.1999) (admissibility of testimony as to causal link between trauma and FM not an issue; issue whether plaintiff disabled as a result of FM); Black, 171 F.3d 308 (abuse of discretion to allow board certified physician to testify that a slip- and-fall caused FM); Licciardi v. TIG Ins. Group, 140 F.3d 357 (1st Cir.1998) (admissibility of testimony as to causal link between trauma and FM not an issue; issue is expert testimony beyond designation); Lang v. Long-Term Disability Plan of Sponsor Applied Remote Technology, Inc., 125 F.3d 794 (9th Cir.1997) (admissibility of testimony as to causal link between trauma and FM not an issue; issue whether plaintiffs depression was FM-related); Minner v. American Mortg. & Guar. Co., 791 A.2d 826 (Del.Super.2000) (temporal relationship insufficient to establish causal link between a building's condition and FM); Hughes v. Scottsdale Ins. Co., 793 So.2d 537 (La.App.2001) (admissibility of testimony as to causal link between trauma and FM not an issue; issue whether evidence sufficient to prove accident caused FM); Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000) (maxim post hoc, ergo propter hoc — after this, therefore because of this — insufficient to establish causal link between trauma and FM). The following unpublished cases were also cited to the trial court: Byrum v. Superior Court, Los Angeles County, 2002 WL 243565 (Cal.App.2002) (testimony as to causal link between trauma and FM not subject to state's non -Daubert reliability standard because not based on new or novel scientific theory or device); Hultberg v. Wal-Mart Stores, Inc., 1999 WL 244030 (E.D.La.1999) (testimony that slip-and-fall caused FM unreliable); Shepler v. Love, 2001 WL 1104811 (Ohio App. 2001) (admissibility of testimony as to causal link between trauma and FM not an issue); Jones v. Conrad, 2001 WL 1001083 (Ohio App.2001) (treating physician's testimony that trauma caused FM inadmissible because not scientifically reliable). In her appellate briefing, the petitioner has also cited Alder v. Bayer Corp., AGFA Div., 2002 UT 115, 61 P.3d 1068 (Utah 2002) (expert testimony as to FM causation not rendered inadmissible by conflict among experts, so long as the testifying expert's methodology, such as differential diagnosis, is a standard practice).

      . In addition to the petitioner’s medical records and the depositions of Drs. Oclcey and Monger, the following items were provided to the trial court, for some of which full source information is not reflected in the record: Dan Buskila, M.D. and Lily Neumann, PhD., Musculoskeletal Injury as a Trigger for Fibromyalgia/PostTraumatic Fi-bromyalgia 104 (Israel 2000); Wolfe, supra, 23 Journal of Rheumatology 534; Fibromyalgia Syndrome, Arthritis Foundation (undated pamphlet); Dan Buskila, Lily Neumann, Genady Vaisberg, Daphna Alkalay, Frederick Wolfe, Increased Rates of Fibromyalgia Following Cervical Spine Injury, 40 Arthritis & Rheumatism 446 (1997); Leslie A. Aaron, Laurence A. Bradley, Graciela S. Alarcón, Mireya Triana-Alexander, Ronald W. Alexander, Michelle Y. Martin, Kristin R. Alberts, Perceived Physical and Emotional Trauma as Precipitating Events in Fibromyalgia, 40 Arthritis & Rheumatism 453 (1997); Kevin P. White, Simon Carette, Manfred Harth, Robert W. Teasell, Trauma and Fibromyalgia: Is There an Association and What Does It Mean, 29 Seminars in Arthritis <& Rheumatism 200 (2000); Don L. Goldenberg, M.D., Clinical Manifestations and Diagnosis of Fibromyalgia, 9 Up to Date (2000); Don L. Goldenberg, M.D., Differential Diagnosis of Fibromyalgia, 9 Up to Date (2000); Don L. Goldenberg, M.D., Pathogenesis and Treatment of Fibromyalgia, 9 Up to Date (2001); Don L. Gold-enberg, Patient Information: Fibromyalgia, 9 Up to Date (2000); Robert M. Bennett, The Fibro-myalgia Syndrome, Textbook of Rheumatology 511 (5th ed.); Criteria for the Classification of Fi-bromyalgia, Primer on Rheumatic Diseases 457, adapted from F. Wolfe, HA Smythe, MB Yunus, et al., American College of Rheumatology (1990); Bruce Freundlich and Lawrence Leventhal, The Fibromyalgia Syndrome, Primer on Rheumatic Diseases 124, Arthritis Foundation; Muhammad B. Yunus, Robert M. Bennett, Thomas J. Romano, I. Jon Russell, et al., Fibromyalgia Consensus Report: Additional Comments, 3 Journal of Clinical Rheumatology 324 (1997).

      . "Etiology" refers to the cause and origin of a disease. "Pathogenesis” refers to the origination and development of a disease. Webster's Third New International Dictionary of the English Language Unabridged 782, 1655 (1993).

      . This language, which was quoted in the petitioner's memorandum of law in the trial court, comes from a copy of the Arthritis Foundation brochure attached as an exhibit to Dr. Monger’s deposition. Dr. Monger's deposition, including the brochure, is attached to the petitioner’s memorandum of law as Exhibit 1. Interestingly enough, attached to the memorandum of law as Exhibit 5 is a similar brochure from the Arthritis Foundation, with the same title, which contains the following version of the same section on FM causation:
      No one knows what causes fibromyalgia. Researchers speculate that many different factors, alone or in combination, may cause fibro-myalgia. For example, factors such as an infectious illness, physical trauma, emotional trauma or hormonal changes, may contribute to the generalized pain, fatigue and sleep disturbances that characterize the condition.
      Studies have suggested that people with fi-bromyalgia have abnormal levels of several of the different chemicals that help transmit and amplify pain signals to and from the brain. Whether these abnormalities are a cause or a result of fibromyalgia is unknown.
      Clearly, this is a far weaker statement that FM may be linked to physical trauma. Neither version of the brochure contained in the record bears a publication date, so there is no evidence as to which may reflect the more recent position of the Arthritis Foundation.

      . In this study, patients with neck injuries were compared to patients with lower extremity injuries. The second quoted sentence refers to one aspect of the study wherein it was determined that the patients suffering from FM did not file insurance claims at a higher rate than did those patients not suffering from FM, nor were they unemployed at a higher rate.

      . Even a novel conclusion is not necessarily inadmissible. Heller, 167 F.3d at 156.


author: CARPENETI, Justice.

text:
    Daryle JAMES, Petitioner, v. STATE of Alaska, Respondent.
    No. S-10679.
    Supreme Court of Alaska.
    Jan. 30, 2004.
    Dan S. Bair, Anchorage, for Appellant.
    Nancy R. Simel, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

1. INTRODUCTION

Daryle D. James was convicted of second degree sexual abuse of a minor and second-degree sexual assault. After his conviction, Danielle M., the key witness and only eyewitness to the incident, recanted her testimony that she saw James having sex with the minor, Elaine F. The superior court denied James’s motion for a new trial predicated on Danielle’s recantation, basing this denial on its finding that Danielle’s recantation was not credible. James petitions for hearing. We reverse the denial of James’s motion for a new trial because the superior court failed to consider whether the recantation would produce an acquittal at a new trial. We remand this matter to the superior court to determine whether Danielle’s recantation, when considered with all the other evidence, would probably produce an acquittal.

II. FACTS AND PROCEEDINGS

A. Facts

Thirteen-year-old Elaine attended a party on the night of June 11 and the early morning hours of June 12, 1994. She became intoxicated at the party and eventually passed out. She is unable to remember what happened in the early morning hours of June 12.

The key witness in this case is Danielle, a girl who was fourteen years old at the time of the party. James is her great-uncle. It is uncontested that at some point during the party, Danielle witnessed Elaine having sex with Michael C., another minor. Danielle testified at James’s trial that she dressed Elaine after this incident and covered her with a sleeping bag. Later, Danielle cheeked on Elaine and again found her naked. James entered the room while Danielle was present and commented on Elaine’s vaginal area. Danielle dressed Elaine again and left. Danielle later witnessed someone other than Michael or James having sex with Elaine.

Later that morning, James complained that Elaine was in his room, and she was eventually dragged to another bedroom. Danielle testified that she later opened the door to this room and saw James having sex with an unconscious Elaine. She was the only eyewitness to James’s alleged sexual assault of Elaine.

Danielle’s testimony was corroborated by Bert Colegrove, an adult who shortly after the incident told the police that James had dragged a naked girl into a room, closed the door, and returned downstairs a short time later. Colegrove recanted his statements at the grand jury proceedings and said that he thought James was just trying to get Elaine to a “safe place.”

Colegrove’s son also saw James and Michael drag Elaine to a room and shut the door. When he returned to the room, he saw fresh semen on the mattress.

On June 16, 1994, four days after the party, Danielle was contacted by Sergeant Jeffrey Hall of the Alaska State Troopers and she told him that she saw James having sex with Elaine. Hall testified that Danielle was reluctant to talk about James because he was a family member, but that he did not remember pressuring her to incriminate James. The troopers were unable to find Danielle to serve her with a subpoena to appear at the subsequent grand jury proceedings, and Danielle moved to Anchorage shortly after James was indicted in July 1994. The state was unable to locate Danielle when James’s trial was supposed to start in October 1994, and after several continuances the court granted the state’s request to issue a material witness warrant for Danielle. Danielle was arrested shortly after the warrant was issued and was held at McLaughlin and Johnson Youth Centers pri- or to James’s trial. At the jury trial in February 1995 she testified, in conformance with her statement to Sergeant Hall, that she saw James having sex with Elaine.

B. Proceedings

James was convicted of second degree sexual abuse of a minor under AS 11.41.436(a)(1) and second degree sexual assault under AS 11.41.420(a)(3)(B). On direct appeal, the court of appeals affirmed James’s convictions and sentence.

James filed an application for post-conviction relief under Alaska Criminal Rule 35.1 in September 1997, which he supplemented in April 1998 with Danielle’s recantation of her trial testimony. In an affidavit, Danielle claimed that she had lied when she testified that she saw James having sex with Elaine.

Superior Court Judge Michael A. Thompson held an evidentiary hearing in June 1998 to determine whether James should be granted a new trial based upon Danielle’s recantation. At the evidentiary hearing Danielle testified, as she stated in her affidavit, that she did not see James have sex with Elaine. Danielle claimed that she was pressured and threatened into testifying against James by the state troopers and the district attorney while she was at Johnson Youth Center in Juneau. The superior court found that Danielle had been pressured by her “family dynamics” to change her story and that Danielle had also been pressured by the guards and inmates at the youth center to maintain her story. The superior court ultimately denied James’s motion for a new trial because it found that Danielle’s recantation was not credible. James appealed and the court of appeals affirmed the superior court’s decision that Danielle’s recantation was insufficient to require a new trial. James filed a petition for hearing which we granted.

III. STANDARD OF REVIEW

“Whether the trial court applied the correct legal rule ... is a question of law that we review de novo using our independent judgment.” When reviewing questions of law we “adopt the rule of law that is most persuasive in light of precedent, reason, and policy.”

IV. DISCUSSION

The Superior Court Must Determine Whether Danielle’s Recantation Would Probably Lead to James’s Acquittal at a New Trial.

James claims that the superior court erred by basing its dismissal of his motion for a new trial solely on its finding that Danielle’s recantation lacked credibility. In Salinas v. State we articulated five requirements which a defendant must meet before the court may grant a new trial based upon new evidence:

(1)It must appear from the motion that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.[]

The parties disagree about whether the superior court undertook the required analysis of whether Danielle’s recantation would probably produce an acquittal at a new trial.

James argues that instead of focusing exclusively on the credibility of Danielle’s recantation, the superior court should have “address[ed] whether, after considering [Daniellejs evidentiary testimony with all the other evidence to be presented at a new trial, a reasonable jury could probably conclude that there existed a reasonable doubt.” The state responds that the superior court implicitly considered the effect of Danielle’s recantation on a new trial because its “findings about the lack of credibility of the recantation strongly suggest that [the court] implicitly concluded the recantation ... probably would not have resulted in an acquittal.” We agree with James.

Rather than implying that it was considering the effect Danielle’s recantation would have on a new trial, the superior court took pains to indicate the limited scope of its findings by the way it framed the question presented by James’s motion. The superior court explicitly limited its analysis to Danielle’s credibility in recanting, rather than the impact of the recantation on a new trial:

the question is, do I believe the witness now or did I believe her then? ... [If the answer is] a tie, I think the defendant loses in cases of this sort because I think he has the burden of satisfying me that it’s more likely than not at least, and probably clear and convincing ... should be the test, that the witness lied then and is truthful now.

The superior court confirmed that it was denying James’s motion for a new trial based upon its assessment of Danielle’s credibility when it stated that

she hasn’t convinced me that her testimony at trial, which I found believable, is now unbelievable. I believed it then. I still believe it now. I don’t believe what I heard the other day. I think she has nine different reasons to say what she said the other day. And I don’t find any of them very compelling. They’re compelling to her, but they’re not compelling to me when I have to decide if it’s true or false.

In addition, no part of the superior court’s order can be fairly interpreted to constitute an implicit consideration of whether James would probably be convicted at a new trial at which the evidence would include Danielle’s original trial testimony, her recantation, and other evidence bearing on the credibility of the recantation. The state’s argument — that the superior court made an implicit finding that Danielle’s recantation would not produce an acquittal at a new trial — is based primarily on the premise that “a credibility assessment encompasses an evaluation of the probable impact of the testimony.” While the court of appeals has correctly stated that a court must assess the credibility of testimony in order to determine its impact, this certainly does not mean that all assessments of credibility encompass an assessment of the testimony’s overall impact on a new trial. Although the credibility of a recantation is certainly relevant to determining the probable result of a new trial, it is entirely possible for a judge to find that, even though he or she does not believe a witness’s recantation, it is probable that a defendant petitioning for post-conviction relief would be acquitted at a new trial if the witness testified in accordance with his or her recantation. Therefore, it is not enough under Salinas for the superior court to examine only the credibility of a witness’s testimony.

The state argues that we should infer from the superior court’s assessment of Danielle’s credibility that the court implicitly determined that a new trial would not result in acquittal. We cannot draw that inference. First, the superior court’s order focused almost exclusively on the court’s reasons for doubting the credibility of Danielle’s recantation without even mentioning the effect of the recantation on a new trial. Furthermore, the superior court’s only reference to the effect of Danielle’s testimony suggested that, had Danielle recanted at the first trial (rather than after the trial), it would indeed have led to a different outcome. Judge Thompson stated that “in my opinion under no circumstances would Mr. James [have] been convicted had the witness testified at trial as she did here. He would have been acquitted. I think it’s unquestionable.” This sole reference to the effect of Danielle’s testimony certainly cannot serve as a substitute for a finding that the effect of a recantation at a second trial would “probably [not] produce an acquittal.” Because the superior court neither explicitly nor implicitly stated the likely effect of the recantation evidence on a jury at a new trial, we must remand for the superior court to make that finding.

Although we hold that a remand for express findings is needed, our decision suggests no view on the ultimate issue to be decided by the superior' court — whether the newly discovered evidence would probably produce an acquittal. We emphasize again that the probable effect of Danielle’s recantation must be realistically evaluated in light of the totality of the evidence to be presented in the event of a retrial, including Danielle’s original testimony, which.the jury would be entitled to consider as substantive proof, and all other admissible evidence impeaching her recantation.

Y. CONCLUSION

We REMAND this case to the superior court to make findings as to whether Danielle’s recantation at a new trial, when considered with all the other evidence, would probably result in James’s acquittal. If it would, the court should order a new trial. If it would not, the conviction should stand.

      . Pseudonyms are used for the minors involved in this case to protect their privacy.

      . The facts in this opinion are taken from the opinion of the court of appeals in James v. State, 49 P.3d 1120 (Alaska App.2002).

      . Daryle D. James v. State of Alaska, Mem. Op. & J. No. 3734, 1997 WL 796507 (Alaska App., December 24, 1997).

      . Alaska R.Crim. P. 35.1 provides in relevant part that:
      (a) [a] person who has been convicted of or sentenced for a crime may institute a proceeding for post conviction relief under AS 12.72.010 — 12.72.040 if the person claims:

      (4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice....

      .James’s motion for a new trial was based on several other claims as well. The superior court's denial of these claims was vacated by the court of appeals and remanded for further proceedings based on those claims. Those claims are not the subject of this appeal. James v. State, 49 P.3d 1120, 1124-26 (Alaska App.2002).

      . Id. at 1122-23.

      . Martin v. Martin, 52 P.3d 724, 726 (Alaska 2002).

      . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380 (Alaska 2001).

      . 373 P.2d 512 (Alaska 1962).

        . Id. at 514 (quoting Pitts v. United States, 263 F.2d 808, 810 (9th Cir.1959)). See also Hensel v. State, 604 P.2d 222, 231 (Alaska 1979) (providing that "tire defendant has the burden of proving by a preponderance of the evidence that newly discovered evidence would be likely to change the result of the trial[,] that is, that the evidence would be sufficient to create a reasonable doubt as to his guilt”).

      . Shapiro v. State, 793 P.2d 535, 537 (Alaska App.1990).

      . The state also argues that the superior court implicitly concluded that Danielle's recantation was merely impeaching, which would cause James's motion to fail the third requirement of the Salinas test. We do not read the superior court's opinion to imply that Danielle's recantation is-merely impeaching. In the context of this case, it has potentially greater impact than mere impeachment evidence. See n. 14 infra.

      . Salinas v. State, 373 P.2d 512 (Alaska 1962).

      . We have long recognized that the use of prior inconsistent statements is not limited to their impeachment value and that such statements may also be considered as substantive evidence. See Beavers v. State, 492 P.2d 88, 94 (Alaska 1971).


text:
    Troy R. KETURI, Appellant, v. Luciel J. KETURI, Appellee.
    No. S-10536.
    Supreme Court of Alaska.
    Jan. 30, 2004.

      Troy R. Keturi, pro se, North Pole.
    Fleur L. Roberts, Law Offices of Fleur L. Roberts, Fairbanks, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Troy Keturi appeals several legal and factual findings made by the standing master and adopted by the superior court in connection with his divorce trial. We conclude that the superior court did not err in aggregating his past income for child support purposes, in finding that his earning potential would not be adversely affected by his physical eondition in the immediate future, in characterizing a triplex held in Troy’s name as marital property, or in determining there to be no debt on a duplex owned as marital property. We therefore affirm the decision of the trial court in these respects. However, we find the calculation of Troy’s income for the year 1997 to be clearly erroneous and accordingly remand for recalculation of his child support obligation.

II. FACTS AND PROCEEDINGS

A. Facts

Troy and Luciel (Lucy) Keturi were married in Anchorage in July 1991 and had a son in August 1993. Troy and Lucy separated on August 1, 2000. They filed a child custody agreement in March 2001 under which it was determined that custody would be shared.

Troy is an electrician and part owner of Ray Electric, an electrical contracting corporation started by Troy’s father, Ray, in 1967. Ray Electric is currently owned equally by Troy and his partner, Clyde Waller. Lucy is employed at Gottschalks as a security officer and is responsible for detecting shoplifters and dealing with internal fraud. She previously worked in a similar capacity at J.C. Penney.

In 1995 Troy was diagnosed with psoriatic arthritis. Troy’s treating physician, Dr. Gayle Carpenter, explained that this is a degenerative disease which manifests itself as a skin rash accompanied by a destructive arthritis in which “the joints become[ ] inflamed and are broken down, eventually infusing and becoming immobile.” As a result, Troy has trouble moving his arms, his neck, and his jaw and is sometimes unable to get out of bed at all.

Since his diagnosis, Troy has experimented with different types of treatment, none of which have yet been approved by his insurance company for psoriatic arthritis. These treatments include Enbrel, which Troy used for a year and a half at a cost of between $14,000 and $16,000 a year, and Remicade, which he was taking at the time of this appeal, at a cost of $2,500 per shot. He has borne these costs out of pocket due to his insurance company’s refusal to cover them. At the time of trial, he was also taking steroids, which “have great effects,” but his doctor had begun to taper the dosage because of the potential for damage to his body, including ulcers, osteoporosis, fractures, and autoimmune disease. Troy has also undergone surgery to drain excess fluid from his knee joints, and he has considered the possibility of joint replacement surgery. However, Dr. Carpenter has cautioned that, following such surgeries, some patients continue to experience decreased range of motion and some may experience rejection of the prosthesis.

Dr. Carpenter has also expressed concerns about Troy’s level of physical activity, explaining that “his work capacity is severely limited by his arthritis and he’s continued to work despite his ongoing pain and physical limitations.” She cautioned that Troy could someday experience “almost total disability” as a result of the disease. Asked within how many years such disability would occur, Dr. Carpenter responded: “As little as two or three. As long as 10 or 15. It just depends on the medications.”

B. Proceedings

Superior Court Judge Richard D. Saveli issued a temporary child support order on April 19, 2001, ordering Troy to pay Lucy $263.83 per month in child support pending a trial to resolve disputed issues, including Troy’s earning potential. Judge Saveli referred the case to Standing Master Katherine R. Bachelder for trial of the property and debt issues. Judge Saveli specifically requested the master to report on “the identity and value of marital property and debts” and that she recommend a distribution. Trial took place on June 27 and 28 and July 17, 2001. Both parties were represented by counsel. Lucy testified on her own behalf. Troy, Dr. Carpenter, Clyde Waller (Troy’s business partner), and Raymond Keturi (Troy’s father) testified on Troy’s behalf.

Master Bachelder made findings on several issues, as requested by Judge Saveli. With respect to the calculation of child support, the master decided to average Troy’s income over a four-year period, based on his testimony that his annual income has fluctuated substantially. Because her decision was issued in September 2001 and she believed any projection of income through the end of that year would be speculative, the master averaged Troy’s income for the years 1997, 1998, 1999, and 2000 to reach a base amount from which to determine what Troy’s child support obligation should be from that point forward. The master determined Troy’s average adjusted annual income to be $84,482. Based upon Civil Rule 90.3(b), the master calculated Troy’s child support to be $892 per month.

The master also made findings regarding Troy’s health and the impact of his psoriatic arthritis on his earning potential. Based on testimony from Troy and Dr. Carpenter, she concluded that, while Troy’s condition would certainly limit his ability to perform manual labor within the next three to four years, it would not necessarily affect his income because he could shift his responsibilities from physical labor to management.

The master made findings regarding the four pieces of property owned by the Ketu-ris, either jointly or as separate property. These four pieces of property were the marital home, a duplex purchased during' the marriage, a triplex purchased by Troy before the marriage, and a shop used by the business. There was no dispute with respect to the marital home because the parties had agreed that Troy would remain in the residence and assume the remaining debt. Similarly, the master recommended that Troy’s shop, which had never been used for a marital purpose, be considered the separate property of Troy and his business, Ray Electric.

With respect to the duplex, while the parties agreed that it constituted marital property and should be awarded to Troy, they disagreed as to whether it was purchased with a bonus or a loan from Ray Electric. The master concluded that given Troy’s and his partner’s ability to determine what, when, and how to pay themselves, their prior history of paying themselves bonuses and classifying them as loans for tax purposes, and the lack of documentation of the purported loan at the time it was made, it was “more likely than not that the property was purchased with a bonus received by the husband and not a loan.”

Next the master addressed the issue of the triplex purchased by Troy prior to the Ketu-ris’ marriage. Troy and Lucy agreed on the value of the triplex and debt owed on it, but disagreed as to its classification. Based on the testimony of the parties at trial, the master urged the superior court either to classify the property as marital or, in the alternative, to invade the property in order to accomplish an equitable distribution.

Finally, the master addressed the equitable factors involved in this case. She first observed that an equal property division would be appropriate in this case, despite Troy’s greater earning capacity, because Troy’s progressive illness would result in high medical costs and potential physical disability in the coming years. In order to reach an equitable distribution, the master concluded that Troy would have to pay Lucy $85,399, either by selling the duplex or triplex or by cashing in one or more retirement accounts. Whether the court designated the triplex as marital or separate property, the master recommended that the .payment remain the same, given Lucy’s limited earning potential as compared to Troy’s. Concerning taxes, the master concluded that refunds should be divided equally but that Troy should pay any future tax debt.

Troy objected to several aspects of the master’s decision. He challenged her decision to average four years of income to determine his child support obligation, and her findings that (1) Troy’s illness would not necessarily affect his earning potential, (2) the money used to purchase the marital duplex was a bonus and not a loan, and (3) the triplex should be considered a marital asset. Troy also objected to the conclusion that he should assume any future tax debt but that any refunds should be divided equally.

Judge Saveli considered Troy’s objections and rejected all but one in his Order Upon Master’s Report. Judge Saveli adopted the master’s method of calculating Troy’s income, explaining that it is within the discretion of the court to determine the best way to ascertain income for the purpose of making an initial child support determination. With respect to the l'emainder of Troy’s objections, the court observed that “viewed in a light that favors upholding the Master’s findings[ ] ... they are not clearly erroneous.” This order was entered on December 12, 2001 and on January 29, 2002 a final decree of divorce was signed by the court.

Troy appeals.

III. STANDARD OF REVIEW

Factual findings based on the evidence presented at trial will be set aside only if we determine them to be clearly erroneous. The same standard applies to factual findings made by a standing master. “A finding may not be set aside as clearly erroneous unless the reviewing court has a ‘definite and firm conviction that a mistake has been made.’ ” While it may often be the case that each party will have presented evidence at trial to support his or her position, it is not our role to weigh the evidence anew, but rather to determine whether the trial court’s findings are supported by the record.

We will not overturn a child support award unless the trial court abused its discretion in calculating the award. This includes the court’s decision to average a parent’s past income to determine his or her child support obligation. We will find an abuse of discretion when we have “a definite and firm conviction, based on the record as a whole, that a mistake has been made.”

We review a trial court’s property division to determine whether it was within the broad discretion granted to the trial court by AS 25.24.160(a)(4). “[T]he trial court’s findings that parties intended to treat property as marital are disturbed only if clearly erroneous.... The equitable allocation of property is reviewable under an abuse of discretion standard and will not be reversed ‘unless it is clearly unjust.’ ”

IV. DISCUSSION

A. The Superior Court Did Not Abuse Its Discretion by Averaging Troy’s Income Over a Four-Year Period To Determine His Child Support Obligation.

Because of the variation in Troy’s income from year to year, the master recommended that the court use an average of Troy’s income over a four-year period to achieve a base figure from which to calculate his child support obligation:

Due to the fluctuating nature of Mr. Ketu-ri’s income, the court finds it appropriate to average his income in years 2000, 1999, 1998, and 1997. The court has declined to project Mr. Keturi’s income for 2001 where such a projection would be speculative. He has received bonuses from the company in addition to his wages in past years and may receive a bonus in 2001 depending on the success of the business.

In adopting the master’s recommendation, Judge Saveli observed that “[w]hen a parent’s future earnings are uncertain, the court may base its calculations on an average of past years.”

Troy contests this decision, arguing that those four years represent the highest-grossing period Ray Electric has ever experienced and are not representative of his current or likely future situation. According to Troy, the decision overstates his income because Ray Electric’s current main job is projected to run over bid and will likely result in a loss to the company, he and his partner overpaid themselves during those years based on inaccurate predictions of future jobs, and both he and the business are currently in a great deal of debt both to creditors and to the federal government. Based on these factors, Troy maintains that his wages in those years do not accurately reflect his future earning capacity, and therefore should not have been used as the basis for making a prospective determination of how much his child support payments should be.

In response, Lucy contends that the master’s recommendation is well-grounded in orn-ease law and is supported by the evidence at trial. She maintains that Troy presented no evidence to corroborate his claims that Ray Electric has not had a profitable job of significant size since 1998, that Ray Electric has no cash reserves, or that Ray Electric’s current project is expected to run over bid. Instead, Lucy argues that the evidence reflects that Ray Electric had four large, profitable jobs in the works at the time of trial. In addition, she maintains that, during the course of the marriage, the business had accumulated valuable property and equipment, the value of which was awarded to Troy in the divorce. She also claims that Troy has always had the discretion whether to pay himself a salary or to reinvest profits in the business. Lucy contests Troy’s claims about tax liability, arguing that any estimate of debt is speculative. Finally, Lucy notes that she and Troy had traditionally received in-kind income from Ray Electric in the form of vehicles, gas, personal credit cards, and improvements to their property which were not included in the income calculation.

We agree with Lucy that this decision was not an abuse of discretion. The Commentary to Alaska Civil Rule 90.3 specifically contemplates situations such as this, providing that “[t]he determination of future income may be especially difficult when the obligor has had very erratic income in the past. In such a situation, the court may choose to average the obligor’s past income over several years.” We have explained that the commentary “reflects an understanding that a single year’s income may not be a reliable indicator of future earning potential where an obligor’s income is highly variable.”

And we have held in a number of cases that income-averaging may be used to calculate a non-custodial parent’s income where it has been erratic in the past. Because Troy has admitted that his income does fluctuate depending on the state of the business, and because the evidence admitted at trial established as much, we do not believe the trial court abused its discretion in averaging Troy’s income for the years 1997 through 2000 in order to determine his prospective child support obligation.

B. The Superior Court’s Treatment of the Master’s Factual Findings

The superior court specifically requested the master to report on “the identity and value of marital property and debts” and to recommend a distribution. Troy objected to several of the master’s findings prior to their adoption by the superior court. Alaska Civil Rule 53(d)(2) requires the court to “accept the master’s findings unless clearly erroneous.” Judge Saveli adopted all of the master’s findings but one, deeming them not to be clearly erroneous. We address the contested factual findings in turn.

1. The finding that Troy’s earning potential will not be adversely affected by his illness in the immediate future was not clearly erroneous.
The master described Troy as “37 years old and in poor health. He has psoriatic arthritis, a progressive disease. The medications that work effectively are not yet covered by insurance and are very expensive. His doctor testified that he could be totally disabled within four years.” With respect to his earning capacity, the master found:
[Troy] has a greater earning capacity than [Lucy]. However, [Troy] has a progressive illness that will cause him to have high medical costs and he will become physically disabled as early as four years from now unless new experimental drugs are approved. His earning capacity will not decrease immediately where he is a co-owner and shareholder and will not become involuntarily underemployed when he is no longer able to perform physical labor.

Troy argues that the court erred in concluding that his physical condition would not immediately affect his earning potential. Troy relies on the testimony of Dr. Carpenter, Clyde Waller, and Ray Keturi at trial to support his position that his condition is rapidly deteriorating and that it has already begun to affect his ability to work. He explains that he will only be able to continue taking steroids for a short period of time due to them potential side effects, that there are days when he is unable to get out of bed at all, and that he has experienced signs of depression as a result of his condition. Troy maintains that the court erred in two respects in determining that his illness would not affect his earning capacity: first, by failing to account for the fact that he will need to hue someone else to perform the physical work he is now unable to perform himself, and second, by neglecting to consider the impact of his diminished energy level and depression on his ability to work.

Lucy responds that while she has never disputed that Troy’s physical ability to work has been limited, the trial court did not err in finding that his condition would not necessarily affect his income, given his part ownership of Ray Electric and his ability to focus on the managerial side of the business. She argues that because Troy and his partner determine their own jobs, there is no reason Troy cannot continue to receive a share of the profits as a manager. Given his position, Troy retains the ability to simply assign himself duties that do not require physical labor.

Troy admitted that he has been able to do some of the company’s bidding and to supervise other employees, and that he is sometimes able to “walk around and supervise.” However, he also argues that the amount of non-physical labor he is able to do does not justify his receiving a salary equivalent to Clyde’s. Clyde’s testimony corroborates Troy’s statements that he is physically unable to do what he was previously able to, that other employees have had to pick up the slack for Troy, and that Troy has not been able to work as many hours as Clyde in the three years prior to trial.

However, the master did not find that Troy’s condition was not serious, but only that should “the business continue to do well, Mr. Keturi will still receive his share of the profits and can earn wages as a manager.” Based on Troy’s ability to collect a share of the profits, his history of receiving “in kind” income from the business regardless of how many hours he works, and his testimony that he remains able to perform certain work-related tasks, we do not believe the trial court’s conclusion was clearly erroneous..

2. The master’s calculation of Troy’s income for the year 1997 was clearly erroneous.
With respect to Troy’s income, one of the master’s factual findings was clearly erroneous. The master’s report states that Troy’s 1997 income was $192,826. However, no evidence supports that figure. Troy testified at trial that he earned approximately $52,000 in 1997. At one point Troy was asked whether 1997 was the year in which he received a $60,000 bonus, and he responded affirmatively, but later changed that testimony to indicate that 1998 was the year he had received the bonus. Even had he received such a bonus in 1997 — which he ultimately clarified that he had not — his income would have been $112,000, not $192,826.

Because Troy’s testimony was the only evidence offered to the court with respect to his income in 1997, and because that evidence did not support the finding that his 1997 income was $192,826, we remand this issue to the superior court for correction of the error and modification of Troy’s child support obligation.

3. The master’s finding that Troy purchased the duplex with a bonus from Ray Electric was not clearly erroneous.
Troy also contests Master Bachelder’s finding that the $88,832.67 check written from Ray Electric’s account, which was used to purchase the duplex, was a bonus rather than a loan. Troy argues that all of the evidence supports a finding that the money was a loan and not a bonus, and that therefore the master’s contrary finding must have been clearly erroneous.

During the trial there was a wealth of testimony regarding an incident in 1998 in which Troy and Clyde gave themselves bonuses of $60,000 each, but failed to pay taxes on the bonuses within three days as required by the IRS. In order to avoid paying penalties on top of the taxes, Troy and Clyde called the bonuses “loans” for accounting purposes. The following year, they added $60,000 to their calculated salaries, and promptly each paid $60,000 back to the company to repay the “loan” of the prior year.

From that incident, the master reasoned that the money used to purchase the duplex could have similarly been designated a loan after the fact to avoid liability in the divorce settlement. According to the master,

[g]iven this one proven incident of classifying a bonus as a loan, the court finds it more likely than not that the duplex was purchased by the husband with marital wages, or a bonus, and that there is no outstanding' debt on the property. The only proof that the husband produced to show that he has a debt to pay on the duplex was a company check showing a payment of $88,832.67 to First National Bank of Anchorage. The court does, not find this to be sufficient, evidence of a debt.

Troy contests this classification, explaining that’there is no evidence the money used to purchase the duplex was a bonus and not a loan. In the past, he argues, when he has taken a bonus, Clyde has received an identical bonus, and the two have declared the amount on their W-2s and paid the required taxes. Because he and Clyde were partners, he did not feel he needed a loan agreement at the time the money was removed from the business. Clyde testified that Troy asked if he could borrow money from the company to purchase the duplex. According to Clyde, “[Troy] said he would pay it back with interest and we agreed upon something like 6 percent or something like that.” When asked whether he had any documentation of the “loan,” Clyde referred to the check written out by Troy to First National Bank of Anchorage in the amount of $88,832.67 and explained that the check “plus a handshake is — with my partner — is a binding deal.” When asked whether Troy had paid any of the money back, Clyde said he had not checked and could not remember since it had occurred over two years ago.

While Troy has conceded that he has in the past purchased supplies and machinery for his personal use on the business account which were neither classified as loans nor mirrored by Clyde, he argued that Clyde would usually do the same, such that their acquisitions would be about equal. Since Clyde did not spend a comparable amount of Ray Electric funds that year, Troy argues that the money used to purchase the duplex should not be considered a bonus.

There was ample testimony at trial regarding Troy’s ability to classify distributions to himself and his partner as he wanted and to use company equipment for personal benefit without payment to Ray Electric. There was also testimony on the lack of documentation, payment book, or proof of repayments or attempts to repay the money. The record supports the master’s finding that the duplex was purchased with a “bonus” from Ray Electric and not a loan, and that it therefore carries no outstanding debt. This finding is not clearly erroneous.

C. The Superior Court Did Not Err in Dividing the Value of the Triplex Between the Parties.

Concluding that the evidence showed the parties’ intent to treat the triplex as marital property, the master recommended that the superior court find that the triplex had been transmuted from Troy’s separate property to marital property. In the alternative, the master recommended that the superior court invade the property in order to accomplish an equitable distribution.

Because we agree that the triplex was transmuted from separate to marital property during the course of the marriage, it is not necessary to reach the question whether balancing the equities requires invasion of the triplex.

The division of property in divorce is governed by AS 25.24.160(a)(4), which vests in the superior court the authority to provide:

for the division between the parties of them property, ... whether joint or separate, acquired only during marriage, in a just manner and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property ... of either spouse acquired before marriage when the balancing of the equities between the parties requires it; ... the division of property must fairly allocate the economic effect of divorce by being based on consideration of the following factors:
(A) the length of the marriage and station in life of the parties during the marriage;
(B) the age and health of the parties;
(C) the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage;
(D) the financial condition of the parties, including the availability and cost of health insurance;
(E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets;
(F) the desirability of awarding the family home, or the right to live in it for a reasonable period of time, to the party who has primary physical custody of children;
(G) the circumstances and necessities of each party;
(H) the time and manner of acquisition of the property in question; and
(I) the income-producing capacity of the property and the value of the property at the time of division.

In Wanberg v. Wanberg, we explained that under certain circumstances basic fairness will require that property held separately by one of the parties be included in a property division. “One such circumstance is where the parties, by their actions during marriage, demonstrate their intention to treat specific items of property as joint holdings, even though the properties were separately held by one or another spouse prior to coverture.” We have identified four factors to be used in determining when such intent exists:

(1) the use of property as the parties’ personal residence, and (2) the ongoing maintenance and managing of the property by both parties, as well as (3) placing the title of property in joint ownership and (4) using the credit of the non-titled owner to improve the property.[]

Application of this test varies by situation. While we have held that not all of these factors need to be present in order to support a finding that a couple intended to treat property as marital, we have been careful to note that “[p]articipation by both spouses in the management and maintenance of the property will not automatically transform pre-marital into marital property. Rather, the participation must be significant and evidence an intent to operate jointly.”

In Wanberg, the couple had built a five-plex on property which had been separately owned by the husband prior to marriage. Both spouses were involved in the negotiation of the loan secured to finance the construction. Both collaborated on design decisions and construction of the rental units. In addition, the wife cleaned the apartments and common areas, advertised vacancies, showed apartments, and collected overdue rents. As we recounted, “[t]he Wanbergs consistently combined their efforts in improving and managing the property, and used the building as their joint personal residence for nearly two years.” The wife also co-signed a loan against the property. Under these circumstances, we concluded that the trial court had abused its discretion by failing to consider this property marital.

In this case, the master characterized the triplex as marital property based on the intent of the parties to treat it as such. She found that Troy and Lucy had used the triplex as a marital residence for the first two years of their union and that their testimony supported the conclusion that Lucy had been actively involved in the management and maintenance of the property:

The wife collected rent, cleaned between renters, assisted in finding renters, maintained the coin operated laundry room, and partially landscaped the property during the marriage. The wife had to borrow money from her parents to make one of the mortgage payments. The mortgage was paid out of the parties’ joint checking account. The rental money from the triplex was deposited into the parties’ joint checking account for the benefit of the marriage. After the parties moved out of the triplex, the wife continued to place ads in the newspaper to rent the units, handled the telephone calls, and cleaned between renters.

These factual findings are sufficient to support the conclusion that Lucy’s actions amounted to “an active interest in the ongoing maintenance, management, and control of the property.” In sum, the evidence showed that the parties lived together in the triplex for two years after their marriage, that Lucy participated in the ongoing maintenance and management of the property, and that marital funds were routinely expended in making the mortgage payments. The parties evinced an intent to treat the triplex as marital property. Accordingly, the superior court did not err in concluding that the triplex was transmuted from separate to marital property during the course of the marriage. It therefore properly divided the value of the triplex between the parties.

V. CONCLUSION

We AFFIRM the superior court’s decision to average Troy’s income over a four-year period in order to determine his child support obligation. We also AFFIRM the superior court’s adoption of the master’s factual findings that Troy’s earning capacity would not immediately be affected by his illness and that the duplex was purchased with a bonus from Ray Electric. And we AFFIRM the superior court’s adoption of the master’s factual finding that the parties intended the triplex to be transmuted from separate to marital property. We REVERSE the finding that Troy’s 1997 income was $192,826 and we therefore REMAND for a recalculation of Troy’s child support obligation.

      . The court rejected the master’s recommendation that Troy assume any potential marital tax debt but that any refund be split between Troy and Lucy. Instead, the court determined that Troy should be held to any debt that would be incurred and should be permitted to receive for his sole benefit any refund. This issue is not before us on appeal.

      . While he was represented by counsel at trial, Troy represents himself pro se on appeal.

      . Brooks v. Brooks, 733 P.2d 1044, 1051 (Alaska 1987).

      . Alaska R. Civ. P. 53(d)(2) ("In an action to be tried without a jury the court shall accept the master's findings unless clearly erroneous.”).

      . Brooks, 733 P.2d at 1051 (citing Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 347 (Alaska 1982)).

      . Id.

      . Pugil v. Cogar, 811 P.2d 1062, 1065 n. 5 (Alaska 1991).

      . Id. at 1066.

      . Id. at 1065 n. 5.

      . McDaniel v. McDaniel, 829 P.2d 303, 305 (Alaska 1992) (citing Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)).

      . Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997) (quoting Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).

      . Alaska R. Civil P. 90.3, Commentary III.E., 252 (2003).

      . Yerrington v. Yerrington, 933 P.2d 555, 557-58 (Alaska 1997).

      . See, e.g., Yerrington, 933 P.2d at 557 (stating that "[w]e have approved an income-averaging approach in calculating child support where an obligor parent demonstrates an erratic or fluctuating income”); Renfro v. Renfro, 848 P.2d 830, 833 (Alaska 1993) (noting that "[t]his court has approved of an averaging approach when a parent's future earnings are uncertain”); Zimin v. Zimin, 837 P.2d 118, 123 n. 9 (Alaska 1992) (explaining that. “we believe that a three-year average would provide an accurate estimate of a parent's current earning capacity when a parent's income is 'subject to yearly fluctuations”); Pugil v. Cogar, 811 P.2d 1062, 1066 (Alaska 1991) (holding that superior court did not abuse its discretion by averaging father's prior income to determine his prospective child support obligation).

      .We note that Troy remains free to move for modification of the child support award should his future income fall by an amount which would result in a fifteen percent decrease in child support payments. Alaska R. Civ. P. 90.3(h)(1).

        We also note that Troy has raised no argument under Civil Rule 90.3(c)(1), which allows the court to make an exception in calculating a parent's income and support obligation where unusual circumstances are present. The Commentary cites as an example such circumstances as "health or other extraordinary expenses.” Alaska R. Civ. P. 90.3(c), Commentary VI.B., 254.

      . While Troy did not raise this issue either in his objections to the master's report or in his appeal, and while we usually will not review issues not previously raised, we raised the issue sua sponte at oral argument in this case and later allowed Lucy’s counsel to provide written references to the record to support the finding that Troy earned $192,826 in 1997. We have carefully examined the proffered record references in her response. They do not support the finding.
      Given the similarity of the income figures found by the master for 1997 ($192,826, based on wages of $132,826 plus a bonus of $60,000), 1998 ($132,826, based on wages of $78,826 and a bonus of $60,000), and 1999 ($132,880, based on $192,800 minus $60,000 "to pay on 'loan from 1998”), we conclude that the error is a "[c]lerical mistake! ] in [a] judgment[ ][or] order! 1” that we may correct "at any time of [our] own initiative." Alaska R.App. P. 519(a).

      . 664 P.2d 568 (Alaska 1983).

      . Id. at 571.

      . Id.

      . Cox v. Cox, 882 P.2d 909, 916 (Alaska 1994) (citations omitted); see also Harrelson v. Harrelson, 932 P.2d 247, 251 (Alaska 1997).

      . See, e.g., Harrelson, 932 P.2d at 251-52 (upholding finding that property acquired by husband alone could be considered marital where only first two factors were present).

      . McDaniel v. McDaniel, 829 P.2d 303, 306 (Alaska 1992).

      . 664 P.2d at 571.

      . Id.

      . Id.

      . Id. at 571-72.

      . Id. at 572.

      . Id.

      . Id.

      . Brooks v. Brooks, 733 P.2d 1044, 1054 (Alaska 1987).

      . The mortgage payments made from a joint account are presumptively marital. See Chotiner v. Chotiner, 829 P.2d 829 (Alaska 1992) ("Placing separate property in joint ownership is rebutta-ble evidence that the owner intended the property to be marital.”) Moreover, the triplex rents that were deposited in the joint account were insufficient to pay all of the triplex expenses and the mortgage. The use of joint funds over a ten-year period to pay at least a portion of the mortgage expenses is strong evidence that the third Wanberg transmutation factor is satisfied here.