author: CARPENETI, Justice.

text:
    Abraham L. MIDGETT, III, Appellant, v. COOK INLET PRE-TRIAL FACILITY, Allan Terreault, Nathaniel Smith, and Lisati Augafa, Appellees.
    No. S-9948.
    Supreme Court of Alaska.
    Aug. 30, 2002.

      Abraham L. Midgett, III, pro se, Estill, South Carolina.
    William F. Morse, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

While awaiting sentencing as a federal prisoner at Cook Inlet Pretrial Facility, Abraham L. Midgett, III got into a fight with another inmate. During the melee, Midgett broke his ankle. He sued the state in federal court on various theories. After failing to gain relief there, Midgett filed suit in superi- or court alleging negligence, violations of his constitutional rights, breach of contract, and medical malpractice. The superior court ruled that Midgett's constitutional claims were barred by collateral estoppel, granted summary judgment to the state on his contract claims, dismissed his medical malpractice claim, and found that Midgett did not carry his burden of proof on his claim of negligence. Because the superior court did not err in its determinations, we affirm.

II. FACTS AND PROCEEDINGS

A. The Fight

Abraham L. Midgett, III was a federal prisoner awaiting sentence at Cook Inlet Pretrial Facility (Cook Inlet) in Anchorage. Midgett was housed in the Bravo Module of Cook Inlet and was the module worker, unlike the other module inmates who were in administrative or disciplinary segregation. As the module worker, Midgett had greater freedom and responsibilities than the other Bravo inmates, including greater freedom of movement, a hinged swinging door that locked by key, which Midgett could lock and unlock himself, and the responsibility to deliver food and other items to other inmates and to clean up the common area.

On June 8, 1998 Officer Nathaniel Smith was the only correctional officer in Bravo. Officer Smith observed Midgett exchanging words with Inmate Kelly Smith (Inmate Smith) at Inmate Smith's locked cell door. Midgett then reported to Officer Smith that Inmate Smith spit on him. Thirty minutes after the interaction between Midgett and Inmate Smith, it was Inmate Smith's turn to be escorted to the showers.

Inmate Smith was classified as a maximum custody prisoner who, by regulation, was required to be under the supervision of two staff members and to wear handcuffs when he was outside his cell. Before opening Inmate Smith's cell, Officer Smith radioed for another officer. After Officer Lisati Augafa entered Bravo, Inmate Smith's door was opened. Inmate Smith, however, was not handcuffed, as required by Cook Inlet's Standard Operating Procedure, before his door was opened. When Inmate Smith was taken out of his cell, Midgett was in his own cell, two doors down from Inmate Smith on the first tier of the Bravo module.

The trial court heard conflicting testimony about how the fight between Inmate Smith and Midgett began. Midgett testified that Inmate Smith was the aggressor, that Mid-gett acted in self-defense, and that the fight was more of a wrestling match. Officers Smith and Augafa testified that Midgett was the aggressor, approaching Inmate Smith with a squeegee, a glass-cleaning tool, that had been altered. Officer Smith testified that Inmate Smith kicked Midgett in self-defense. Officer Smith radioed for assistance because of the "fight in Bravo." Both officers testified that Inmate Smith broke away from Officer Smith, ran upstairs, grabbed a broomstick, and was subdued before he could reach Midgett.

B. The Injury

During the course of the fight, Midgett injured his ankle. Midgett and another inmate testified that the injury occurred when Officer Smith stepped on his ankle in the course of trying to break up the fight. Mid-gett was eventually diagnosed with a broken, though not displaced, ankle by Dr. Christopher Horton, an orthopedic surgeon. Dr. Horton placed Midgett's ankle into a soft air cast due to the lack of displacement and the amount of swelling. Midgett was told not to place weight on the ankle and to keep his leg elevated. Midgett did not follow this advice, the fracture became displaced, and surgery became necessary. On July 18, 1996 Midgett underwent surgery to repair his now displaced ankle. Dr. Horton testified that the ankle had healed after surgery as he expected it to and that he saw no evidence of a permanent disability.

C. The Proceedings

Midgett filed suit in federal district court under 42 U.S.C. § 1983, alleging that Officers Smith and Augafa used excessive force in breaking up the fight, thereby violating the Eighth Amendment and depriving Mid-gett of his civil and constitutional rights under the Fourteenth Amendment. United States District Court Judge James K. Singleton found that Midgett did not have a constitutional claim and dismissed the case with prejudice as to the constitutional claims. However, Judge Singleton stated that the dismissal did not affect any actions Midgett wished to bring in state court under Alaska's Tort Claims Act.

Midgett filed suit against Cook Inlet, Officers Smith and Augafa, and Allan Terreault, superintendent of Cook Inlet, in state court. Midgett claimed that disregard of standard operating procedures by Officers Smith and Augafa caused his injury and amounted to constitutional violations under the Eighth and Fourteenth Amendments. Concluding that Midgett's constitutional claims were barred by collateral estoppel, Superior Court Judge Rene J. Gonzalez dismissed those claims. Judge Gonzalez allowed Midgett to amend his complaint to include any state causes of action that he may have had against the defendants.

Midgett then filed an amended complaint, apparently claiming breach of contract, negli-genee, and violations of his constitutional rights. Midgett. also filed motions for the appointment of counsel and to appear before the court during trial, both of which Judge Gonzalez denied. The defendants moved for partial summary judgment on Midgett's claims of breach of contract, negligence, and a possible claim of medical malpractice, noting that the constitutional claims had already been adjudicated in federal court. Judge Gonzalez granted summary judgment on the breach of contract claim. A court trial ensued on the medical malpractice and negli-genee claims.

Judge Gonzalez issued his findings of fact and conclusions of law on October 23, 2000. Judge Gonzalez found that the evidence presented at trial did not support the medical malpractice cause of action and dismissed it. On the negligence cause of action, Judge Gonzalez found that Midgett failed to meet his burden of proof by a preponderance of the evidence. Final judgment was entered on Cook Inlet's behalf on November 17. Midgett appeals.

III. STANDARD OF REVIEW

Issues of collateral estoppel are questions of law, which we review using our independent judgment. The decision to appoint counsel for a civil litigant is a procedural decision, which we review for abuse of discretion. Decisions concerning the telephonic appearance of a party are also reviewed for abuse of discretion. Reversal is warranted only if we are left with a definite and firm conviction, after reviewing the entire record, that a mistake has been made. We review a court's factual findings under the clearly erroneous standard."

We review a superior court's grant of summary judgment de novo, drawing all reasonable factual inferences in favor of the nonmoving party and granting summary judgment where no genuine issues of material fact exist and where the moving party is entitled to judgment as a matter of law. When reviewing questions of law, "we apply our independent judgment and adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

A. Midgett's Constitutional Claims Are Barred by Collateral Estoppel.

Judge Gonzales held that Midgett's constitutional claims were barred by collateral estoppel, as they had already been adjudicated and dismissed by the federal court. Midgett now argues that his Eighth Amendment right to be free from eruel and unusual punishment, his Fourteenth Amendment right to equal protection, and a general right to due process were violated by the officers at Cook Inlet.

We require four elements to be met before collateral estoppel applies:

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was resolved in the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final jadgment."[]

Midgett filed suit against Cook Inlet, Officers Smith and Augafa, and Superintendent Terreault in federal court, apparently alleging violations of his Eighth and Fourteenth Amendment rights, including (1) that the prison officials' handling of his broken ankle constituted a failure to attend to serious medical needs; (2) that one of the officers stepping on his ankle and breaking it constituted cruel and unusual punishment; and (3) that the prison officials failed to exercise the appropriate standard of care in protecting Midgett from Inmate Smith and in this way violated the Eighth Amendment, made applicable to the states by the Fourteenth Amendment.

In granting summary judgment to Officer 'Smith, Judge Singleton held that Midgett {failed to raise a genuine issue of material fact on his Eighth and Fourteenth Amendment claims. In granting summary judgment to Officer Augafa and Superintendent Ter-reault, Judge Singleton concluded (1) that there was no evidence to support a finding that any official was "deliberately indifferent" to Midgett's medical needs; (2) that even if the evidence supported the argument that an officer stepped on Midgett's ankle, such a finding would be insufficient to support a finding of eruel and unusual punishment, as such an action would only support an inference that the force was applied in good faith while attempting to restore discipline; and (3) that the situation did not present the type of "conscious indifference" the U.S. Supreme Court required when imposing a duty on prison officials to take reasonable measures to guarantee the safety of inmates.

Midgett's claims in federal court satisfy the requirements of collateral estoppel: (1) He was the plaintiff in the federal action; (2) he brought Eighth and Fourteenth Amendment claims in federal court; (8) the federal court's order was a grant of summary judgment, a final judgment on the merits; and (4) the determination of those constitutional claims were essential to the judgment, as they were the basis of the judgment. Given that Midgett's constitutional claims met the four requirements of collateral estoppel, Judge Gonzalez did not err in granting summary judgment to Cook Inlet.

Midgett also argues in his reply brief that his Fifth and Sixth Amendment rights were violated in that he was not granted a jury trial. He had not previously made this claim to either the superior court or this court. As the issue was raised for the first time in Midgett's reply brief, we need not consider it.

B. Midgett Was Not Entitled to Appointed Counsel.

In November 1999 Midgett moved for appointment of counsel. Judge Gonzalez denied the motion, stating that the court's authority to appoint counsel for pro se litigants was limited to specific classes of cases within which Midgett's claim did not fall. Midgett again asked for counsel to assist him in taking depositions of several witnesses prior to trial. Judge Gonzalez again denied Midgett's motion on grounds of timeliness, as discovery had closed, and because of the previous denial of Midgett's motion for counsel. Midgett now argues that he should have been appointed counsel, as it is the only way for him to obtain his right to due process.

While an indigent person does not have a right to appointed counsel in most civil cases, we have allowed appointment of counsel in certain civil cases or quasi-civil proceedings by relying on the principles that justify appointment of counsel in criminal proceedings. We have required appoint- - ment of counsel in cases involving termination of parental rights, . child custody, paternity suits, and civil contempt proceedings for nonpayment of child support.

As Midgett's claim does not fall into one of the already recognized exceptions for appointment of counsel in a civil proceeding, we must determine whether Midgett's due process rights were violated by the superior court's failure to appoint counsel. We have adopted the balancing test used by the U.S. Supreme Court in Mathews v. Eldridge to determine what process is due:

Identification of the specific dictates of due process generally involves consideration of three distinct factors: the private interest affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail.[]

The private interest of a litigant in having counsel in a tort case is not as strong as the interests involved in cases where we have already afforded appointed counsel. While an unlitigated tort claim is a species of property, it is not nearly as compelling as the right to have children, the right to custody of children, or the right to oppose the deprivation of liberty. A claimant's economic interest in recovering money damages is not particularly compelling under Mathews v. Eidridge. Morever, Midgett failed to make any case-specific showing of exceptional circumstances warranting the appointment of counsel.

While Midgett would undoubtedly have had a better chance with a lawyer, the failure of the superior court to appoint counsel in his tort claim did not violate his due process rights. The superior court's decision was not in error.

C. The Superior Court Did Not Err in Requiring Midgett To Participate Telephonically and by Videotape.

Midgett requested that the court issue an order that he be brought before the court for his trial from his placement at the Federal Correctional Institution in South Carolina. Judge Gonzalez denied Midgett's motion due to the cost and inconvenience of transport, the potential danger and security risk that would have to be guarded against, the fact that Midgett's physical presence was not essential for a just disposition, the fact that telephonic and videotaped participation gave Midgett his right of access to the state courts, and because delaying the trial until Midgett's release from a 262-month sentence was not a viable option. Midgett now appears to argue that the trial court erred in refusing to order Midgett's transport.

We have not yet decided the extent to which an inmate has the right to attend a civil trial in which that inmate is a party and is not represented by counsel. Generally, a prisoner has a due process right to reasonable access to the courts which cannot be limited unless the state's interests in security and rehabilitation of prisoners cannot be protected by less restrictive means. Courts in Alabama and Texas have held that trial courts did not err in barring a prisoner from attending future proceedings in tort cases in which that inmate was a party.

In other causes of action, many courts have held that a trial court has the discretion to permit an inmate to be brought before the court, taking into account the costs and inconvenience of transporting a prisoner, the potential danger and security risks, the need for an early determination of the matter, the possibility of delay until the prisoner is released, and the probability of success on the merits.

Here, the trial court allowed Midgett to participate telephonically, with his deposition taken by videotape. Alaska Rule of Civil Procedure 99 authorizes telephonic participation in cases where there is good cause and there is not substantial prejudice to the parties. Here, good cause to allow Mid-gett's telephonic participation existed: The cost of transporting Midgett from his place of incarceration in South Carolina would have included two round-trip tickets each for two state troopers (one round-trip ticket to pick up Midgett and one round-trip ticket to return Midgett to South Carolina), at a cost of $1,800 to $2,500 per ticket. Additionally, the time it would take to transport Midgett would total twelve officer days. The trial court found that the cost and inconvenience of transporting Midgett were "very substantial." Judge Gonzalez also found that the presence of two court security personnel would be required at all times in court and that delaying the trial until Midgett was released from custody was not a viable option.

Judge Gonzalez found that allowing Mid-gett to participate telephonically would not substantially prejudice his claim. Judge Gonzalez found that Midgett's physical presence was not essential for a just disposition where Midgett could participate both through an audio-visual deposition and telephonic participation at trial. Judge Gonzalez's disposition of Midgett's request to be transported from South Carolina to personally appear at trial was therefore not an abuse of discretion.

D. The Superior Court Did Not Err in Finding Midgett Failed To Meet His Burden in His Negligence Action.

Midgett argues that the trial court erred in finding that he did not meet the burden of proof on his negligence claim. Midgett also states that the officers' deviation from the standard operating procedures (SOPs) was evidence of negligence.

Midgett needed to prove that it was more likely than not (1) that the defendants were negligent, (2) that the negligence was a legal cause of Midgett's harm, and (8) that Midgett was actually harmed. Judge Gonzalez found that, based on evidence the court found eredible, Midgett was the initial aggressor in the confrontation between Midgett and Inmate Smith. He also found that Midgett's injury was the foreseeable consequence of his aggressive conduct and that there was no evidence that the officers who separated the two inmates used a degree of force beyond what was necessary to separate Midgett and Inmate Smith. -

Judge Gonzalez found the testimony of Officers Smith and Augafa to be more credible than the testimony of Midgett and other inmates. We give due regard to the "opportunity of a trial judge to weigh the credibility of witnesses." Officer Augafa testified that Midgett, sounding angry and holding a squeegee, confronted Inmate Smith. Officer Augafa testified that he was aware that some officers encourage inmates to fight but that did not occur this time. Rather, Officer Augafa stated, Midgett started the fight.

Officer Smith also testified that Midgett was the aggressor. Officer Smith stated that Midgett rushed down towards Inmate Smith when Inmate Smith exited his cell saying "Come on," and that Midgett was using the squeegee as a weapon, acting as the aggressor during the incident.

Given the testimony of Officers Smith and Augafa and the special ability of the trial court to judge the credibility of the witnesses, the trial court did not err in finding that Midgett failed to meet his burden in proving that the defendants acted negligently.

Midgett also apparently argued that the officers' failure to handcuff Inmate Smith, a violation of Cook Inlet's SOPs, was negligence per se. But Judge Gonzalez correctly observed that Midgett still had to show that the violation was the legal cause of his injury. As Midgett failed to show the causal connection between the violation -of the procedures and his injury, Judge Gonzalez found that Midgett did not meet his burden of proof,. Judge Gonzalez pointed to his finding that Midgett was the aggressor in the action; therefore, if Inmate Smith had been handcuffed, Judge Gonzalez found that Mid-gett would merely have attacked someone who would have been unable to protect himself. As Judge Gonzalez's finding that Mid-gett was the aggressor was not clearly erroneous, he did not err in concluding that Midgett did not carry his burden of proof on the negligence per se claim.

E. The Superior Court Did Not Err in Dismissing Midgett's Breach of Contract Claim.

Midgett argues that the superior court erred in dismissing his breach of contract claim, as an inmate has a right to expect prison officials to follow the policies and regulations of the prison. Judge Gonzalez held that "[the evidence presented at trial does not support a cognizable cause of action against these defendants on the theor[y] of breach of contract ..., therefore [it is] dismissed." However, on the first day of trial, Judge Gonzalez had granted summary judgment to the defendants on the breach of contract claim. As Judge Gonzalez dismissed the claim prior to the beginning of trial and did not hear any evidence on it during trial, we read his findings and conclusions as stating that the breach of contract claim was dismissed with his grant of summary judgment to the defendants.

The parties acknowledged that Officers Smith and Augafa did not follow Cook Inlet's SOPs when they brought Inmate Smith out of his cell. As the parties stipulated to not following this SOP during litigation of the motions for summary judgment, Judge Gonzalez only had to determine if the SOP constituted a contract between Cook Inlet and Midgett. To establish the existence of a contract, four elements must be shown: (1) an offer that encompasses the agreement's essential terms; (2) unequivocal acceptance; (8) consideration; and (4) mutual intent to be bound.

The SOPs promulgated by Cook Inlet do not constitute a contract between Cook Inlet and Midgett. In 1990, the Commissioner of the Department of Corrections established a policy for SOPs. Under this policy, each correctional facility develops and maintains its own SOPs in order to implement Department of Corrections policies. Therefore the SOPs were neither implemented after consultation with Midgett nor did Midgett agree to their terms. Without an agreement and acceptance between Cook Inlet and Mid-gett, there can be no contract upon which Midgett can base a breach of contract claim. Judge Gonzalez did not err in dismissing Midgett's breach of contract claim.

F. The Superior Court Did Not Err in Dismissing Midgett's Medical Malpractice Claim.

Midgett argues that the superior court erred in dismissing his medical mail-practice claim. Judge Gonzalez held that in Midgett's amended complaint, Midgett asserted a cause of action for medical malpractice. Judge Gonzalez stated that because "{the evidence presented at trial [did] not support a cognizable cause of action against these defendants" on that theory, the claim was dismissed.

Given that there was substantial evidence adduced at trial on Midgett's medical malpractice claim, Judge Gonzalez's dismissal of it is best characterized as a finding that Midgett failed to carry his statutory burden on the claim. Under AS 09.55.540, a plaintiff in a medical malpractice action must (1) establish a standard of care, (2) show that the defendant failed to exercise this standard of care, and (8) establish that the failure was the proximate cause of the defendant's injuries. We have held that, where negligence is not evident to lay people, the plaintiff in a medical malpractice action must present expert testimony to establish the claim.

The only medical testimony presented by Midgett at trial was that of Dr. Christopher Horton, the orthopedist who treated Midgett. Dr. Horton testified that the air cast Midgett was initially fitted with immobilized his foot and that, with the use of crutches, his fracture, which had not displaced, would heal properly. Dr. Horton further testified that it was Midgett's walking on his leg, against medical advice, that resulted in Midgett's ankle requiring surgery. Dr. Horton testified on cross examination by the state that, given the amount of swelling around the ankle, the physician's assistant's use of an air cast was proper, as a hard cast could have caused permanent damage. He also testified that Midgett told him he had been bearing weight on his foot, against doctor's orders. As Midgett did not present any evidence showing that the air cast contributed to his injury or to dispute the evidence that it was Midgett's walking on his ankle that caused the more severe injury requiring surgery, the superior court did not err in dismissing Midgett's claim for medical malpractice.

v. CONCLUSION

Because the superior court did not err in any respect, we AFFIRM the superior court's decision.

      . Judge Gonzalez also found the evidence insufficient on the breach of contract claim and dismissed that claim; this was the claim that had previously been dismissed on summary judgment.

      . Griswold v. City of Homer, 34 P.3d 1280, 1283 (Alaska 2001).

      . Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000). I

      . Silvers v. Silvers, 999 P.2d 786, 789 (Alaska 2000).

      . Id.

      . Bennett v. Artus, 20 P.3d 560, 562 (Alaska 2001).

      . Wongittilin v. State, 36 P.3d 678, 680 (Alaska 2001).

      . Id. at 680-81.

      . Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995) (citing Johnson v. State, Dep't of Fish & Game, 836 P.2d 896, 906 (Alaska 1991)).

      . It appears that Midgett filed suit against a number of people in his first federal complaint. Service, however, was only perfected against Officer Smith. Judge Singleton dismissed the case against two individuals (Art Tyrol and Paoli-Paoli) that are not identified anywhere else in the record. Judge Singleton also dismissed the case against Cook Inlet, finding that it was not a "person"" under 42 U.S.C. § 1983. Judge Singleton went on to grant Officer Smith summary judgment, at which time Midgett may have filed his amended complaint against Officer Augafa and Superintendent Terreault.

      . These claims are taken from the federal court's orders dismissing Midgett's claims.

      . Leuthe v. State, Commercial Fisheries Entry Comm'n, 20 P.3d 547, 552 n. 23 (Alaska 2001).

      . Reynolds v. Kimmons, 569 P.2d 799, 801 (Alaska 1977).

      . V.F. v. State, 666 P.2d 42, 44-45 (Alaska 1983).

      . Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).

      . Reynolds, 569 P.2d at 803.

      . Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974).

      . 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

      . In the Matter of K.L.J., 813 P.2d 276, 279 (Alaska 1991).

      . Id. (quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)).

      . Patrick v. Lynden Transp., Inc., 765 P.2d 1375, 1378 (Alaska 1988).

      . We have held that due process requires a personal hearing in administrative license-revocation proceedings where testimonial credibility is at issue. Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1139 (Alaska 2001). But Whitesides is distinguishable for three reasons: First, unlike Whitesides, in which the state affirmatively prosecuted an administrative action against a private person, Mid-geti has elected to sue here, placing the state in a purely defensive posture. Second, the state sought to deprive Whitesides of a valuable license; Midgett, on the other hand, simply asserts his economic interest in recovering money damages. Third, Whitesides required the state to allow in-person testimony in the absence of any case-specific circumstances compelling telephonic proceedings. Here, by contrast, the state has shown compelling and case-specific reasons for a telephonic hearing: the extraordinary costs and security risk associated with transporting an out-of-state prisoner to Alaska for trial.

      . Jay M. Zitter, Annotation, State Prisoner's Right to Personally Appear at Civil Trial to Which He Is a Party-State Court Cases, 82 A.L.R.4th 1063 (1990) (collection and discussion of state cases in which courts have considered circumstances under which prisoner in state institution has right to appear in person at civil trial not arising out of incarceration where prisoner is direct or named party).

      . Lightfoot v. McDonald, 587 So.2d 936, 938 (Ala. 1991) (holding that prisoners do not have right to attend proceedings in civil actions initiated by them that are unrelated to their confinement and that superior court's denial of prisoner's request to attend malpractice action initiated by him against attorney who represented him in criminal prosecution was not abuse of discretion); Brewer v. Taylor, 737 SW.2d 421 (Tex. App.1987) (holding that inmate sentenced to life failed to satisfy burden of showing why his personal appearance was justified to allow him to personally appear in pro se malpractice action filed against his criminal defense attorney where he was being held more than eighty miles from. district court and risks of him attending trial were obvious and real).

      . Zitter, supra note 23, at 1068-73 (citing cases from Arizona, California, Florida, Illinois, Louisiana, Michigan, Missouri, Nebraska, New York, North Dakota, Ohio, Pennsylvania, Tennessee, Washington, West Virginia, and Wisconsin).

      . Alaska R. Civ. P. 99(a) states, in part:
      The court may allow one or more parties, counsel, witnesses or the judge to participate telephonically in any hearing or deposition for good cause and in the absence of substantial prejudice to opposing parties.

      . Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1085 (Alaska 2001). ‘

      . Following a disciplinary hearing concerning this incident, the Disciplinary Committee indicated in its report that Midgett was "armed with an altered squeegee" when he approached Smith.

      . Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1167 (Alaska 1998).

      . Mathis v. Sauser, 942 P.2d 1117, 1123 (Alaska 1997).

      . Id.

      . AS 09.55.540(a) states:
      In a malpractice action based on the negligence or wilful misconduct of a health care provider, the plaintiff has the burden of proving by a preponderance of the evidence
      (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
      (2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
      (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

      . Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska 1984) (citing Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska 1980)).


source: Caselaw Access Project

license: Public Domain

text:
    Bryan WILLOYA, Appellant, v. STATE of Alaska, through its DEPARTMENT OF CORRECTIONS, David L. Popken, Mike Green, Betsie Robson, Bill Parker, Larry Kinchloe, Margaret Pugh and Supervising Physician, Robert S. Fox, Appellees.
    No. S-10280.
    Supreme Court of Alaska.
    Aug. 30, 2002.

      Bryan Willoya, pro se, Palmer.
    William F. Morse, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee Department of Corrections, et al.
    Donna M. Meyers, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellee Robert S. Fox, M.D.
    Roger F. Holmes, Biss & Holmes, Anchorage, for Appellee David L. Popken.
    Before: FABE, Chief Justice, CARPENETI, Justice, and MANNHEIMER, HENSLEY, and FINN, Justices pro tem.

       Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Bryan Willoya was incarcerated at Spring Creek Correctional Center when he was diagnosed with ulcerative colitis that required surgery. Willoya brought a negligence claim against the State of Alaska and the personnel that treated him. After the superior court allowed, Willoya's attorney to withdraw, Willoya filed multiple motions requesting the appointment of counsel, the appointment of an expert, and the appointment of a special master, all of which were denied by the superior court. The superior court then granted the state's motion for summary judgment, which was supplemented with expert affidavits, because Willoya failed to offer expert testimony that the state was negligent in its treatment of his condition. Because the superior court properly dismissed Willoya's claim in the absence of medical testimony to contradict the state's experts and because Willoya was not entitled to court-appointed counsel, experts, or a special master, we affirm the rulings of the superior court.

II FACTS AND PROCEEDINGS

A. Facts

Bryan Willoya was an inmate at Spring Creek Correctional Center (Spring Creek) during the time period that is relevant to this appeal. During his incarceration, Willoya complained of various health problems. On November 10, 1997 Willoya complained of blood in his stools. Willoya was seen by physician's assistant David L. Popken who diagnosed Willoya with hemorrhoids and treated him with stool softener and fiber.

Willoya again complained of rectal bleeding on November 16 and was seen by a nurse. The next morning Willoya was seen by. Popken who recommended a barium enema, for diagnostic purposes, but still diagnosed Willoya with hemorrhoids. Popken also recommended that Willoya be seen by Dr. Robert S. Fox. Dr. Fox examined Willo-ya on November 18 and agreed with Pop-ken's recommendation for a barium enema. Dr. Fox also found that Willoya's bowels were inflamed.

On November 24 Willoya was admitted to the prison infirmary for preparation for the barium enema. Willoya had a bartum enema on November 25 at Providence Seward Hospital. The results of the barium enema required follow up, but not on an emergency basis. On December 1, 1997 Popken requested that a colonoscopy be performed in the next couple of days to rule out any abnormalities. Popken also decided to keep Willoya at Spring Creek until closer to the date of the colonoscopy before transferring him to Anchorage. Popken started Willoya on antibiotics and anti-inflammatories on December 2.

Willoya was in the prison infirmary from December 1 through December 7 where he was monitored closely. On December 7 Wil-loya's condition worsened when he started experiencing significant pain and abdominal cramping and his temperature rose to 101°. Dr. Fox examined Willoya that same day and diagnosed him with severe refractory colitis, a serious, life-long disease that causes an inflammation of the intestines. Dr. Fox ordered Willoya to be transferred to Providence Hospital in Anchorage on an emergency basis that day to Dr. Steve Kilkenny for a surgical consult and in-patient treatment. Upon his arrival at Providence, Willoya was seen by Dr. Richard Buchanan, an internal medicine specialist. A computer tomography radiographic exam (CT sean) was performed on Willoya on December 8. Dr. Kilkenny then ordered surgical intervention because the CT sean showed that Willoya suffered from severe ulcerative colitis involving his entire colon and appendix. A total colecto-my with proctectomy and ileostomy was performed.

B. Proceedings

On August 12, 1999 Willoya filed a suit in the superior court against the Department of Corrections, Dr. Fox, and Popken, among others In his complaint, Willoya made claims of negligence against the state and its employees and medical negligence against Dr. Fox, and possibly negligent infliction, of emotional distress against all defendants. The case was assigned to Superior Court Judge Beverly W. Cutler. At a pre-trial conference on January 3, 2000, trial was scheduled for August 6, 2001. On the same day, Judge Cutler sent a letter to the parties asking if it was their intention to waive the appointment of an expert advisory panel. The parties waived appointment of the panel.

On August 2, 2000 Willoya's counsel, Ted Stepovich, moved to withdraw from the case because attorney/client communication had broken down. Willoya did not consent to the withdrawal of Stepovich. The superior court scheduled a hearing on the motion to withdraw on September 15, 2000. On October 6 the superior court granted Stepovieh's motion to withdraw. Judge Cutler ordered Ste-povich to send all materials associated with his case to Willoya within thirty days and recognized Willoya as a pro se litigant.

On December 27, 2000 all defendants joined in a motion for summary judgment. The motion was supported by expert affidavits from a physician's assistant and a board certified family practitioner stating that Pop-ken and Dr. Fox met the applicable standard of care, Willoya filed an opposition to the state's motion for summary judgment but failed to include any affidavits from medical experts.

In January 2001 Willoya filed several motions. He moved to obtain expert testimony and reports at public expense. He moved to enforce the superior court's order requiring Stepovich to send all of the materials relating to his case to him, and he asked the superior court to hold Stepovich in contempt for his failure to provide the materials within the time previously ordered. Willoya moved for the appointment of a special master and, in the alternative, the appointment of counsel. Finally, Willoya filed a motion to stay the state's motion for summary judgment and an opposition to the expert reports filed by Pop-ken based on the experts' credentials. Pop-ken moved to strike Willoya's opposition to the expert reports on February 15.

On April 16 the superior court ruled on all pending motions. The superior court denied without prejudice Willoya's motion to enforce the order against Stepovich and hold Stepo-vich in contempt. The court struck Willoya's opposition to the expert reports submitted by Popken and denied Willoya's motion for dismissal of the state's summary judgment "for the reasons advanced in the [state's] briefing." It also denied Willoya's motion to appoint an expert pursuant to Alaska Rule of Evidence 706 because Willoya made no showing that he was able to pay for his share of the appointed expert's fee. It denied both Willoya's motion to obtain expert testimony and reports at public expense and his motion to have a master appointed or, in the alternative, to have counsel appointed. Willoya's motion for a stay on the state's motion for summary judgment was denied as Willoya had already had what was effectively an extension of over two months to respond. Finally, the superior court granted the state's motion for summary judgment. Final judgment of dismissal with prejudice was entered on June 7.

Willoya appeals.

IH. STANDARD OF REVIEW

We review an appeal from summary judgment de novo. We affirm "[a] superior court's grant of summary judgment . if the evidence in the record fails to disclose a genuine issue of material fact and the moving party is entitled to judgment as a matter of law." "All reasonable factual inferences must be drawn in favor of the party opposing summary judgment."

We review procedural decisions of the superior court for an abuse of discretion. We will reverse a ruling for abuse of discretion only when we are left with a definite and firm conviction, after reviewing the entire record, that the trial court erred. We review a ruling by the superior court allowing an attorney to withdraw under the abuse of discretion standard. Discovery rulings are also reviewed for abuse of discretion. The same standard is used to review the superior court's decision concerning appointment of a special master.

We review the superior court's factual findings on the issue of contempt for clear error. A finding of fact is clearly erroneous when we are left with a definite and firm conviction based on the totality of the record before us that the trial court has made a mistake.

"Constitutional questions are questions of law to which we apply our independent judgment."

We apply our "independent judgment to questions of statutory interpretation, such as whether the trial court properly construed and fulfilled its statutory duty to appoint an expert advisory panel." We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

A. The Superior Court Did Not Err in Allowing Stepovich To Withdraw and in Refusing To Sanction Stepo-vich for Failing To Provide the Case Materials.

1. The superior court did not err in allowing Stepovich to withdraw.

Willoya argues that the superior court erred in allowing Stepovich to withdraw from the case. Willoya offers no factual or legal support for his argument that the superior court abused its discretion in letting Stepovich withdraw. The court allowed Ste-povich to withdraw only after holding a hearing on his motion to withdraw, in which Willoya participated, and the withdrawal took place on October 10, 2000, ten months prior to the scheduled date for trial. We therefore hold that the superior court did not abuse its discretion in allowing Stepovich to withdraw.

2. The superior court did not err in refusing to sanction Stepovich.

Willoya argues that Stepovich made unauthorized disclosures of information concerning the settlement of Willoya's claims. Willoya offers no proof of this allegation other than his own assertion and he gives no specific information as to when this conversation took place or what the particulars of the conversation were. There is no evidence that Willoya raised this issue below. Accordingly, Willoya has waived this claim.

Willoya also argues that the superior court erred in denying his motion for en-foreement of the order requiring Stepovich to send Willoya all materials associated with Willoya's case within thirty days. The superior court's decision denying Willoya's motion to hold Stepovich in contempt was not clearly erroneous. Stepovich filed a notice of compliance with the superior court on February 15, stating that he had sent the file to Willo-ya before Willoya even filed his motion for enforcement. Willoya did not refute that statement. Moreover, Willoya has alleged no harm as a result of not receiving the materials from Stepovich within the thirty days provided by the order. We will not disturb a judicial determination without evidence of both error and prejudice. The superior court did not err in denying Willoya's motion.

B. The Superior Court Did Not Err in Denying Willoya's Requests for Appointment of a Discovery Master, Counsel, a Medical Expert, and an Expert Advisory Panel.

1. The superior court did not err in denying the appointment of a master.

Willoya contends that the superior court erred when it denied his motion to appoint a master under Alaska Civil Rule 53(a). The state interprets Willoya's argument as asking for the appointment of a discovery master. Willoya's motion to the superior court indicates that Willoya intended that the master would help him deal with discovery requests and organize material that he received from the other side.

In Peter v. Progressive Corp., we stated:

appointment of a discovery master should generally be reserved for cases (1) where the issues are unusually complex or specialized; (2) where discovery is particularly document intensive; (3) where resolving discovery disputes will be especially time consuming; (4) where the parties are particularly contentious or obstructionist; or (5) where a master will facilitate a more speedy and economical determination of the case.[]

Willoya fails to assert that any of the five factors mentioned above are present in this case. While the case does involve claims of medical negligence, which is a specialized area, there is no indication that the trial court was unduly burdened by these specialized issues. There is also no indication that any of the other factors apply to this case. Therefore, we uphold the superior court's denial of Willoya's request to appoint a master.

2. The superior court did not err in denying the appointment of counsel.

Willoya argues that the superior court erred when it denied his request to appoint counsel. The state responds that Willoya had no right to court-appointed counsel. The state contends that the mere fact that Willoya is indigent does not implicate the same right to counsel in a tort/personal injury case as it does in a criminal case. In fact, in his original motion, Willoya admits that he is "aware that he has no real right for the appointment of bonafide counsel by the court." We have recently reiterated that there is no right to appointed counsel in tort cases. The superior court did not err in denying Willoya's request to have counsel appointed for him.

83. The superior court did not err in denying the appointment of an expert under Evidence Rule 706.

Willoya contends that the superior court erred when it denied his motion to have an expert appointed pursuant to Alaska Evidence Rule 706(a) The state responds that the rule does not warrant the appointment of an expert because this case is not complex. The state also points to Willoya's argument in his original motion that an expert is needed in order "to coherently present the plaintiffs claims and any rebuttal testimonies of defendant{[s'] proposed experts." The state argues that this is an inappropriate reason for the superior court to appoint an expert.

The language of Rule 706 supports the conclusion that the rule was meant as a discretionary, procedural option for a judge when the issues involved in a case are unusually complex. The language of the rule-"[t]he court may appoint expert witnesses"makes clear that appointment by the court is discretionary.

Rule 706 was not intended as a means for an indigent party to obtain expert testimony at public expense. The superior court correctly observed that "the court has no funds with which to support private litigation such as this litigation."

4. The superior court did not err in denying the appointment of a medical expert advisory panel.

Willoya contends that the superior court erred in failing to appoint a medical expert advisory panel. Willoya states that he needed the panel in order to present his case as required by AS 09.55.536(a).

Alaska Statute 09.55.586 provides for a pretrial review of medical malpractice claims by an expert advisory panel and allows for the admission into evidence of the panel's report at trial. Here, the superior court wrote to both parties asking if the parties wanted an expert advisory panel appointed. There is no evidence in the record that Willo-ya requested an expert advisory panel after receiving this letter. In the order granting summary judgment to the state the superior court noted that Willoya "through his counsel rejected the court's offer to appoint an expert advisory panel." Because the parties waived their right to an expert advisory panel, we hold that the superior court did not err in failing to appoint one.

C. The Superior Court Did Not Err in Granting Summary Judgment.

1. Willoya received proper notice of the requirements of submitting affidavits with his opposition to the state's motion for summary judgment.

Willoya states that he did not receive "understandable notice of the requirements of the summary judgment rules." Willoya argues that he did not receive notice of the necessity of submitting affidavits if the facts were in dispute. In Breck v. Ulmer, we required trial judges to inform a pro se litigant "of the proper procedure for the action he or she is obviously attempting to accomplish." Specifically, the pro se litigant "should [be] advised of the necessity of submitting affidavits to preclude summary judgment, and of the possibility of amending her complaint."

Here, we can find no indication that the superior court formally informed Willoya of the necessity of submitting expert affidavits to avoid the grant of summary judgment in favor of the state. However, there is evidence that Willoya knew or became aware of this requirement while there was still time to submit affidavits.

First, in its motion for summary judgment, the state noted that Willoya must present expert testimony in order to support his claims for medical negligence. Second, Wil-loya acknowledged the need for medical testimony in his own filings. Although these acknowledgments were made after he submitted his motion for dismissal of the state's motion for summary judgment, the acknowledgments were made well before the superi- or court ruled on the state's motion for summary judgment. Also, the superior court noted in its denial of Willoya's January 29 motion for a stay on the state's motion for summary judgment that "today's date is 4-16-01 and plaintiff effectively has had a stay or extension of far more than 20 days to accomplish the goal sought." During this period of approximately two and one-half months from the first indication that Willoya understood the requirements for summary judgment until the state's motion was granted, Willoya never sought leave to amend his opposition or in any way comply with the requirements. Therefore, we find that there was no need for the superior court to give Willoya formal notice of the requirements of opposing a motion for summary judgment because there is clear evidence in the record that he knew the requirements.

2. The state did not violate Evidence Rule 702(b) by submitting more than three experts.

Willoya asserts that the superior court violated Alaska Rule of Evidence 702(b) by allowing the state to submit more than three experts' names on its witness list. Willoya misreads the rule. It prohibits the testimony of more than three experts "as to the same issue." He makes no showing that the state submitted more than three experts as to any issue. Moreover, because this case never went to trial, the experts listed never actually testified. There was no error with regard to Evidence Rule 702(b).

3. The superior court did not err in finding that Willoya did not establish a triable case of medical negligence to preclude summary judgment.

Willoya argues that he raised genuine issues of material fact and that the superior court erred in granting the state's motion for summary judgment. With its motion for summary judgment, the state submitted the affidavits of two experts. First, the opinion of physician's assistant Edward Hall, a physician's assistant licensed in Alaska with approximately nine years of experience, was submitted. Hall stated that physician's assistant Popken met the applicable standard of care with regards to the treatment of Willo-ya's ulcerative colitis. Second, the state submitted the affidavit of Dr. David A. Driggers, a board-certified family-practitioner licensed in four states, including Alaska. Dr. Drig-gers stated that both Popken and Dr. Fox treated Willoya in a manner appropriate to the complaints made by Willoya. Also, Dr. Driggers stated that the care given by both Popken and Dr. Fox met the applicable standards of care. Willoya failed to offer expert testimony to support his medical negligence claim against the state.

We have held that when a party's "motion was sufficient to establish the absence of a genuine issue as to negligence" and the other party "presented no expert affidavits and did not show, based on the evidence that was presented, that a reasonably arguable case of medical negligence existed" it is appropriate for a trial court to grant a motion for summary judgment. Here, the state submitted expert affidavits that showed that the state took proper care of Willoya. Onee the state met this burden, the burden shifted to Willo-ya to demonstrate how he would prove medical negligence. Since Willoya offered no expert opinion contrary to the expert opinions offered by the state, there was no arguable issue of medical negligence. The superior court did not err in granting summary judgment in favor of the state.

4. Willoya does not have a claim of informed consent.

Willoya claims that he did not give informed consent when he received a barium enema because he was not notified of the material risks of the procedure. This claim was never raised below. Willoya's complaint only alleged three causes of action: the state was negligent, Dr. Fox and Popken gave negligent medical care, and possibly a negligent infliction of emotional distress claim. There is no indication that the issue of informed consent was raised below or that the superior court made any findings on the issue. Willoya has waived this claim.

D. The State Did Not Violate Willoya's Constitutional Rights.

1. The state did not violate Willoya's due process rights by releasing his medical records.

Willoya claims that he was denied his right to due process in violation of both the state and federal constitutions when his medical records were released without a hearing. As the state points out, onee Wil-loya filed a civil suit putting his medical condition at issue, he waived any privilege or privacy interest he had in his medical records. 'Willoya makes no arguments that the records he is referring to are not the same records that are implicated by this case. Therefore, because Willoya has put his medical condition at issue, he has waived any claim that his rights were violated with the release of these records.

2. Willoya waived his Eighth Amendment claim by failing to raise it in the superior court.

Willoya claims that he was denied pain medication when he requested it and that this amounted to cruel and unusual punishment in violation of the Eighth Amendment. Specifically, Willoya claims that he was denied pain medication on two occasions: December 5 and 7, 1997. There is no indication that Willoya ever raised this claim before the superior court and, therefore, no findings of fact were ever made regarding these two incidents. Because this argument was not raised below, it is waived.

3. Willoya does not have a claim against the state for violation of its own policies and procedures.

Willoya argues that the state violated the Department of Corrections' policies and procedures by not informing his family that he had become seriously ill and was hospitalized. Willoya also claims that this violated his due process rights. Willoya failed to raise these claims below and, therefore, he has waived them.

E. Claims Raised by Willoya in His Reply Brief but Not in His Opening Brief Have Been Waived.

Willoya raises several claims in his reply brief that he neither raised below nor raised in his opening brief These claims include an alleged sexually improper remark by Popken, the state's failure to provide certain materials through discovery, Willoya's right to know about Popken's consultations with other medical professionals, Popken's alleged breach of his confidential relationship with Willoya, violation of Willoya's right to know of unfavorable test results, and the state's interference with Willoya's confidential communications to his doctor.

On December 31, 2001 the state filed a motion with this court to strike the affidavits submitted with Willoya's reply brief and to disregard the arguments that Willoya did not raise in his opening brief We struck the affidavits submitted with the reply brief and stated that we would not consider new points raised for the first time in the reply brief, but reserved our consideration of whether the challenged arguments were raised for the first time in the reply brief until our consideration of the merits of this appeal. We have now fully reviewed all of the briefing. Because these arguments were not raised in the opening brief, we now hold these arguments are waived.

v. CONCLUSION

We reject Willoya's various challenges and AFFIRM the superior court's grant of summary judgment to the state.

MATTHEWS, EASTAUGH, and BRYNER, Justices, not participating.

      . A colectomy is the "[elxcision of a segment or all of the colon." Stzoman's Menicat Dictionary 325 (25th ed.1990).

      . A proctectomy is the "surgical resection of the rectum." Id. at 1263.

      . An ileostomy is the establishment of a fistula (an abnormal passage from an abscess, cavity, or hollow organ to the skin) through which the third portion of the small intestine discharges directly to the outside of the body. Id. at 763.

      . All the appellees will be collectively referred to as the state.

      . Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska 1998).

      . Johnson v. Olympic Liquidating Trust, 953 P.2d 494, 496 (Alaska 1998).

      . Id.

      . Dougan v. Aurora Elec., Inc., 50 P.3d 789 (Alaska 2002) (citing Morgan v. State, Dep't of Revenue, 813 P.2d 295, 297 n. 4 (Alaska 1991).

      . Id.

      . Devincenzi v. Wright, 882 P.2d 1263, 1265 (Alaska 1994).

      . Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998).

      . Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999).

      . Matanuska Elec. Ass'n, Inc. v. Rewire the Bd., 36 P.3d 685, 690 (Alaska 2001).

      . Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

      . Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).

      . Taylor v. Johnston, 985 P.2d 460, 463 (Alaska 1999) (citations omitted).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Brandon v. Corr. Corp. of America, 28 P.3d 269, 280 (Alaska 2001) (holding argument waived when not raised in court below or given cursory treatment in party's brief).

      . Hayes v. Bering Sea Reindeer Products, 983 P.2d 1280, 1283 (Alaska 1999).

      . Alaska R. Civ. P. 53(a) states:
      The presiding judge of the superior court for each judicial district with the approval of the chief justice of the Supreme Court may appoint one or more standing masters for such district, and the court in which any action is pending may appoint a special master therein. As used in these rules the word "master" includes a referee, an auditor and an examiner, and a magistrate or a deputy magistrate. The compensation, if any, to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action which is in the custody and control of the court, as the court may direct. The master shall not retain the master's report as security for compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.

      . While we analyze this request under standards relevant to the appointment of masters under Civil Rule 53, we note that Willoya's announced purposes for seeking appointment of a master show that Willoya in effect sought the appointment of a legal assistant to him.

      . 986 P.2d 865 (Alaska 1999).

      . Id. at 870.

      . Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105 (Alaska 2002).

      . Alaska R. Evid. 706(a) states:
      The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint expert witnesses. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. If the court determines that the interests of justice so require, the party calling an expert appointed under this rule may cross-examine the witness.

      . We note that, by ruling on Willoya's motion for the appointment of an expert at public expense, his motion for a stay upon the state's motion for summary judgment, and the state's motion for summary judgment all on the same day, the superior court may not have fully considered Willoya's disadvantage as a pro se litigant. We think the better practice, as exemplified by the trial court's procedure in Kaiser v. Sakata, 40 P.3d 800 (Alaska 2002), is to grant a pro se medical malpractice fitigant an extension of time to respond to a summary judgment motion, to explain to the litigant what he needs to oppose the motion, and to make clear that the litigant could not rely on his own testimony in opposing summary judgment before ruling on the motion. Id. at 802-03. We find that the court's deciding of all of the pending motions on the same day in this case, however, was not prejudicial to Willoya because Willoya had made it clear to the court that he was unable to provide anything further by way of opposition to the motion for summary judgment.

      . AS 09.55.536(a) provides:
      In an action for damages due to personal injury or death based upon the provision of professional services by a health care provider, including a person providing services on behalf of a governmental entity, when the parties have not agreed to arbitration of the claim under AS 09.55.535, the court shall appoint within 20 days after filing of answer to a summons and complaint a three-person expert advisory panel unless the court decides that an expert advisory opinion is not necessary for a decision in the case. When the action is filed, the court shall, by order, determine the professions or specialties to be represented on the expert advisory panel, giving the parties the opportunity to object or make suggestions.

      . Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 345 (Alaska 1988).

      . 745 P.2d 66 (Alaska 1987).

      . Id. at 75.

      . Id.

      . Alaska R. Evid. 702(b) states:
      No more than three independent expert witnesses may testify for each side as to the same issue in any given case. For purposes of this rule, an independent expert is a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony. The court, upon the showing of good cause, may increase or decrease the number of independent experts to be called.

      . Willoya did not claim that the state's action in naming more than three expert witnesses resulted in an "undue burden or expense" under Alaska Rule of Civil Procedure 26(c). Accordingly, we do not address the interplay between that rule and Evidence Rule 702(b).

      . Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska 1984).

      . Willoya complains that his own lay opinion evidence was admissible under Alaska Rule of Evidence 701, and faults the superior court for excluding it. Regardless whether, had the case gone to trial, Willoya may have been able to provide his own opinion testimony under Rule 701, it was insufficient to oppose expert testimony on a medical malpractice claim for summary judgment purposes. Id.

      . Brandon v. Corr. Corp. of America, 28 P.3d 269, 280 (Alaska 2001) (stating that "[a] party may not raise an issue for the first time on appeal.") (citing Preblich v. Zorea, 996 P.2d 730, 736 n. 17 (Alaska 2000).

      . U.S. Const amend. XIV, § 1 (Willoya mistakenly cites to "Art. 5"); Araska Const. art. 1, § 7.

      . Langdon v. Champion, 745 P.2d 1371, 1373 (Alaska 1987); see also Trans-World Investments v. Drobny, 554 P.2d 1148, 1151 (Alaska 1976) (stating "we hold that the filing of a personal injury action waives the physician-patient privilege as to all information concerning the health and medical history relevant to the matters which the plaintiff has put in issue."). Alaska R. Evid. 504 states in relevant part:
      (b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional conditions, including alcohol or drug addiction, between or among the patient, the patient's physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

      (d) Exceptions. There is no privilege under this rule:
      (1) Condition on Element of Claim or Defense. As to communications relevant to the physical, mental or emotional condition of the patient in any proceeding in which the condition of the patient is an element of the claim or defense of the patient, of any party claiming through or under the patient, of any person raising the patient's condition as an element of his own case, or of any person claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or after the patient's death, in any proceeding in which any party puts the condition in issue.

      . Willoya also claims that the release of his medical records violated his right to privacy, his right to a fair trial, and his right to be free from illegal searches and seizures. Since Willoya had no privacy interest in the release of his medical records, as discussed above, there could be no violation of his right to privacy. Willoya's right to be free from illegal search and seizure is not implicated in this case as it is a civil case and not a criminal case. See D.R.C. v. State, 646 P.2d 252, 260 (Alaska App.1982) (stating that "the fourth amendment, properly viewed in its historical context, applies to two kinds of situations: first, investigations of those suspected of crime by those performing the function of police officers; and second, area-wide exploratory investigations, with or without a suspect, carried out by specialized law enforcement officers in order to prevent crime (including violation of health and safety regulations)."). It is unclear how the right to a fair trial relates to Willoya's claim since no specific examples are given; thus it is impossible to evaluate this claim.

      . "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const amend. VIL

      . Native Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211, 1215 (Alaska 1984) (stating that "[i]t is the job of the trial court, not the appellate court, to judge the credibility of the witnesses and to weigh conflicting evidence.").

      . Brandon v. Corr. Corp. of America, 28 P.3d 269, 280 (Alaska 2001) (stating that "[a] party may not raise an issue for the first time on appeal.") (citing Preblich v. Zorea, 996 P.2d 730, 736 n. 17 (Alaska 2000).

      . Id.

      . Alaska R.App. P. 212(c)(3) (stating that the reply brief "may raise no contentions not previously raised in either the appellant's or appellee's briefs."); see also Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158 (Alaska 1992) (stating this court need not consider a theory raised for the first time in a reply brief).


author: MATTHEWS, Justice.

text:
    Michael GAEDE, Appellant, v. Mike and Kate SAUNDERS, Appellees.
    No. S-10113.
    Supreme Court of Alaska.
    Aug. 30, 2002.
    Paul M. Hoffman, Robertson, Monagle & Eastaugh, P.C., for Appellant.
    Paul H. Grant, Philip M. Pallenberg, Batchelor, Pallenberg & Associates, Juneau, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

Mike and Kate Saunders hired workers to build an addition to their home. One of the workers, Michael Gaede, fell from a ladder and was injured. Gaede's claim for workers' compensation benefits was denied by the Workers' Compensation Board on the ground that Gaede was not an employee within the meaning of the Workers' Compensation Act. The superior court affirmed, as do we.

Under the Workers' Compensation Act employees are entitled to recover workers' compensation benefits from their employers in the event of their work-related disability or death. But not all persons who are employees within the usual meaning of that term are employees covered by the act. The act defines an employee as "an employee employed by an employer as defined in [AS 23.30.395(13) ]." An "employer," in turn, is defined as "the state or its political subdivision or a person employing one or more persons in connection with a business or industry. ..." The act thus exeludes private common law employees who are employed other than "in connection with a business or industry."

In Kroll v. Reeser we recognized that the "business or industry" language is meant to convey that not every person working in the service of another is a covered employee. In Kroll a property owner was building a four-plex. He intended to occupy one of the units and rent out the other three. A worker on this project was injured. The board ruled that the worker was covered by the act, holding that "every person in the service of another under contract" was an employee. We concluded that this interpretation was too broad in that it failed "to give proper weight to the statutory limitation to employment relationships 'in connection with a business or industry.' We stated:

In Larson's terms, the policy question is whether Kroll's construction activity, either by itself or as an element of his rental activities, was a profit-making enterprise which ought to bear the costs of injuries incurred in the business, or was the construction activity simply a cost-cutting shortcut in what was basically a consumptive and not a productive role played by Kroll.[]

We remanded the case to the board to determine whether Kroll was an employer in light of the "business or industry" limitation.

In Nickels v. Napolill we addressed the question whether a farm which was not the owners' primary source of income was a "business" within the meaning of AS 28.30.395(13). We upheld the superior court's conclusion that the farm was a business. Thus the farm owners were "employers" within the meaning of the act and the farm worker was an "employee." We again recognized "Professor Larson's distinction between consumptive activities which should not bear the burden of workers' compensation insurance, and productive business activities, which should." We also observed that "[a] business, unlike a homeowner, can pass the cost of workers' compensation insurance on to the consumers of the business's service or product."

Here, there was no "business or industry" aspect to the Saunders' building project. They were not enlarging their house with a view toward producing goods or services for others. Instead, their role with respect to the house addition was consumptive, for the house was intended to be used only as their family residence. Thus the project on which Gaede was working when he was injured was rot "in connection with a business or industry." The Saunders were therefore not employers under the act, and Gaede was not an employee covered by the act.

The judgment of the superior court is AFFIRMED.

      . See AS 23.30.010 ("Compensation is payable under this chapter in respect of disability or death of an employee.").

      . AS 23.30.395(12).

      . AS 23.30.395(13).

      . 655 P.2d 753 (Alaska 1982).

      . Id. at 754-55.

      . Id. at 757.

      . Id.

      . Id. (emphasis in original).

      . 29 P.3d 242, 252-53 (Alaska 2001).

      . Id. at 253.

      . Id.

      . Id.

      . The result we reach is consistent with the result reached in most jurisdictions with respect to householders' activities. See 4 A. Larson, Workers' Compensation Law § 50.21 (1999); "The courts have consistently held that compensation acts do not apply in such instances. The examples that can be drawn from decided cases cover a range as varied as the hypothetical cases just suggested: a carpenter helping to build or remodel the employer's own residence...."


text:
    Susan TRAPP, Appellant, v. STATE of Alaska, Office of Public Advocacy, Appellee.
    No. S-10043.
    Supreme Court of Alaska.
    Aug. 30, 2002.
    Ethan G. Schutt, Dorsey & Whitney LLP, Anchorage, for Appellant.
    Venable Vermont, Jr., Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

The question in this case is whether a conservator is shielded by absolute quasi-judicial immunity from claims asserted by her ward. We answer "no" because the con-servatorship statute permits such claims.

Facts and Proceedings

In 1995 the superior court found Susan Trapp partially incapacitated and appointed the Office of Public Advocacy as her conservator. In 2000 Trapp filed suit, pro se, against OPA, claiming that its employees had intentionally or negligently withheld funds which were meant for Trapp's shelter, food, and clothing, thereby placing her life in jeopardy; told other agencies not to help Trapp or provide her with services, thereby violating its duty of confidentiality; and defamed her. She sought both injunctive relief and monetary damages.

OPA moved to dismiss the suit, asserting absolute quasi-judicial immunity with respect to all elaims. Trapp opposed the motion, arguing that under the applicable statute conservators are liable to their wards for breaches of duty. The court granted OPA's motion, ruling that the statute does not provide for claims by wards against conservators.

Arguments on Appeal

On appeal Trapp argues that absolute quasi-judicial immunity should not be afforded to conservators for the following reasons:

(1) a conservator's duties do not resemble protected judicial functions;

(2) a conservator does not perform duties intimately related to the judicial process because

(a) a conservator's duties are not performed on behalf of a court,
(b) a conservator is not a neutral third party,
(c) a conservator does not provide the court with pre-decision assistance, and
(d) a conservator acts outside the supervision and direction of the court;

(3) quasi-judicial immunity leaves wards without protection against abuses by conservators and such abuses are best deterred and prevented by an action for damages;

(4) absolute quasi-judicial immunity conflicts with the conservatorship statute; and

(5) even if there is quasi-judicial immunity generally, such immunity should not extend to intentional or malicious wrongs. OPA disputes each of these points. We address only the fourth point and conclude that it is well taken. This conclusion moots Trapp's other arguments.

The Conservatorship Statute Precludes Absolute Immunity for Conservators

Judges are shielded by absolute immunity from civil actions for damages arising out of their judicial acts. Judicial immunity "serves the twin purposes of protecting the finality of judgments and preserving judicial independence 'by insulating judges from vexatious actions prosecuted by disgruntled litigants.' Judicial immunity is "for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences."

Judicial immunity is an absolute form of immunity; it applies "no matter how erroneous the act may have been, how injurious its consequences, how informal the proceeding, or how malicious the motive. Only judicial actions taken in the clear absence of all jurisdiction will deprive a judge of absolute immunity. Absolute judicial immunity is extended not only to judges but to others who perform duties that are sufficiently related to the judicial process. The clearest case for quasi-judicial immunity is presented in instances where some aspect of the court's adjudicative responsibility is delegated to another official such as a master or referee. And in Alaska, as well as in almost all other jurisdictions, neutral court-appointed experts are also shielded by absolute quasi-judicial immunity. But with respect to the question as to whether a conservator or other person appointed by a court to manage the person or property of a ward or the property of an estate enjoys absolute immunity, there is no similar unanimity.

Cases applying a rule of absolute immunity to such officials include Cok v. Cosentino; New Alaska Development Corp. v. Guet-schow; Mullis v. United States Bankruptcy Court for the District of Nevada; and Mosher v. Saalfeld. Cases denying absolute immunity to such officials include Frey v. Blanket Corp.; Collins ex rel. Collins v. Tabet; and Edwards v. Pena.

We have no occasion here to choose between these lines of authority, or attempt to reconcile them, because absolute immunity for conservators is, in our view, precluded by the conservatorship statute, chapter 26 of title 13 of the Alaska Statutes. The most relevant section is AS 13.26.8305 which provides:

(a) Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in a fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the representative capacity and identify the estate in the contract.
(b) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if personally at fault.
(c) Claims based on contracts entered into by a conservator in a fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in the fiduciary capacity, whether or not the conservator is individually liable for them.
(d) Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding or action.

Subsection (b) explicitly makes conservators liable for torts committed in the course of administration where they are personally at fault, and subsection (d) permits claims asserted by the estate against the conservator individually to be determined either in the conservatorship proceeding or in another appropriate action.

The trial court ruled that subsection .305(b) read in the context of the other subsections of section .805 "addresses the claims of third parties as against the estate or conservator, and does not provide a cause of action for the protected person against the conservator." We do not so interpret section 305. While subsections (a) and (c) concern claims of third parties against the estate or the conservator, subsection (b) is not so limited. And subsection (d) explicitly contemplates the adjudication of claims by the estate against the conservator individually.

As to subsection (d), OPA argues that liability questions between the conservator and the ward are meant to be confined to the conservatorship proceedings and that in light of the court's power in such proceedings "there is no need to provide for tort lawsuits by the protected person against her conservator. ..." OPA's assertion that the court in conservatorship proceedings can fairly adjudicate a claim by the ward against her conservator is doubtless true, for the court can apply discovery and other rules of civil procedure in such proceedings in order to ensure a fair adjudication. But the relevant point for the present case is not in which forum liability claims against a conservator may be adjudicated, but whether such claims can be maintained at all. Subsection .305(d) plainly allows such claims.

Other sections of the conservatorship statute also suggest that wards may pursue claims against conservators. Alaska Statute 13.26.245 provides that "[iIn the exercise of powers, a conservator shall act as fiduciary and shall observe the standards of care applicable to trustees under AS 13.36.225-13.86.290." The phrase "standard of care" is generally used to define the cireumstances in which a party is liable in tort, and fiduciaries are generally liable to those whom they are charged with protecting when they breach their fiduciary duties.

Alaska Statute 18.26.215 authorizes the court to require a conservator to furnish a bond "conditioned upon faithful discharge of all duties of the trust according to law." Subsection .220(a)(1) provides that the conservator is jointly and severally liable with the sureties on the bond; subsection (2) of section .220(a) provides that the bond may be enforced in the court which appointed the conservator "in any proceeding pertaining to the fiduciary duties of the conservator"; and subsection (8) provides that "any interested person" can initiate a proceeding against the surety. The statutory bond requirement thus contemplates that claims for money damages may be brought for breaches of fiduciary duties against the conservator and the surety by "any interested person." The statute does not suggest that the latter category does not include the ward. To the contrary, the ward is typically the person most directly affected by a breach of fiduciary duty.

Based then on the statute governing con-servatorships, we conclude that conservators are not shielded by absolute quasi-judicial immunity. For this reason the judgment of the superior court is REVERSED and this case must be REMANDED for further proceedings consistent with this opinion.

      . Her full complaint reads as follows:
      1. [OPA] did intentionally with hold funds which were meant for shelter, food and clothing and intern placed my life in jeopardy.
      2. Thai [OPA] had a responsibility as a court assigned conservator to make funds provided by social security available to me for food clothing and shelter. This was not done frequently sometimes by intent and some times simply through neglect and a cold disregard to my safety.
      3. That [OPA] did tell other agencies not to help me or provide services and illegally broke Federal laws of confidentiality.
      4. That [OPA] was intentionally verbally abuse to me and many other of their clients with a callous disregard to their disability situations. Frequently causing deep humiliation and embarrassment in front of groups of people in the front office.
      5. That [OPA] had record of how seriously ill I was, disregarded that ... and frequently caused me to be homeless by telling others how "hard I was to handle" and setting up a self fulfilling prophecy. Being homeless in Anchorage is very life threatening but [OPA] would say it was no big deal "sleep in the streets[.]"
      6. I want to take this to court where I can prove my allegations through records of [OPA] and through witness. Even through people who work at office of public advocacy and are willing to state what kind of behavior they have seen displayed towards clients.
      7. I want to this to go to civil litigation as soon as possible: to stop the abuse and to have monetary compensation for the years of degradation by a group of people who were supposed to be in a helping role. This system of abuse almost cost me my life ... and I can prove this in court.

      . Lythgoe v. Guinn, 884 P.2d 1085, 1086-87 (Alaska 1994) (quoting Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)).
      If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication.
      Id. at 1087 (quoting Forrester, 484 U.S. at 226-27, 108 S.Ct. 538).

      . Id. (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)).

      . Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.1989) (citations omitted). Absolute judicial immunity is to be contrasted with qualified public official immunity, under which public officials are protected from liability for their discretionary acts within the scope of their authority so long as their acts are in good faith and are neither malicious nor corrupt. Pauley v. Anchorage Sch. Dist., 31 P.3d 1284, 1286 (Alaska 2001). Whether some form of qualified public official immunity applies to OPA conservators is not at issue in this appeal. We express no opinion on this question.

      . See Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452 (9th Cir.1993) (per curiam) (special master); Smallwood v. United States, 358 F.Supp. 398 (E.D.Mo.1973) (referee in bankruptcy); see also Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980) (commissioner in property partition proceeding).

      . Lythgoe, 884 P.2d at 1090.

      . See cases cited in Lythgoe, 884 P.2d at 1087 n. 1.

      . 876 F.2d 1 (Ist Cir.1989) (conservator).

      . 869 F.2d 1298 (9th Cir.1989) (court-appointed receiver).

      . 828 F.2d 1385 (9th Cir.1987) (bankruptcy trustee).

      . 589 F.2d 438 (9th Cir 1978) (per curiam) (trust officer appointed to conserve the estate of an incompetent).

      . 255 Neb. 100, 582 N.W.2d 336 (1998) (guardian for incapacitated person).

      . 111 N.M. 391, 806 P.2d 40 (1991) (guardian ad litem in role as advocate for infant). Here the court compared the guardian ad litem's liability to that of a conservator under the applicable New Mexico statute, accepting as a given conservator liability:
      Fiduciaries, of course, are subject to liability to their wards for harm resulting from ordinary negligence in the discharge of their fiduciary duties; if anything, they are charged with a higher standard of care than are persons who do not owe fiduciary duties. See Pino v. Budwine, 90 N.M. 750, 568 P.2d 586 (1977); Guerra v. New Mexico Human Servs. Dep't, 96 N.M. 608, 633 P.2d 716 (App.1981) (guardian accepting assets of ward held to stringent and high standards of conduct). Id. at 49 (emphasis in original).

      . 38 SW.3d 191 (Tex.App.2001) (guardian appointed to conserve the estate of incapacitated person}.

      . See Alaska R. Prob. P. 1(e).

      . See Collins, 806 P.2d at 49.

      . AS 13.26.215(a).