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Clement v. Fulton4/8/2005
not established that Mary would have lived only about one year.
It therefore inverts the case as it was tried to say that the superior court erred in concluding that Mary would have lived a normal life expectancy. What the court really did was find that the reports did not require the court to accept Clement's "speculative" position that Mary would have died within a year. That finding was not clearly erroneous.
2. Clement does not Assert and did not Preserve a Claim that the Superior Court Prevented Dr. Kiraly from Testifying
The dissent argues that the superior court contributed to the lack of credible evidence of Mary's life expectancy by denying Clement the opportunity to have Dr. Kiraly testify telephonically. But Clement raises no such contention on appeal, and the record establishes that she did not preserve any such argument below, either at the hearing or in her reconsideration motion.
After both sides had called and examined all of their witnesses at the evidentiary hearing, Clement's lawyer advised the court that he had no additional witnesses. The parties' lawyers then presented their oral arguments on the allocation issues. Michael's lawyer argued, among other things, that "This is an allocation with regards to the statutory [dependents] and I've heard nothing that should deviate from . . . Horsford at this point."
In his opposing argument, Clement's lawyer referred to Dr. Kiraly's opinion letter submitted with Clement's pre-hearing memorandum opposing Michael's proposed allocation. He argued that the letter expressed an opinion that Mary would have had a twenty to thirty percent chance of remaining in long-term remission. He therefore contended, among other things, that Horsford did not apply.
In reply, Michael's lawyer relied on Dr. Spindle's report to argue that proper treatment might have prevented the hemorrhage that caused Mary's death and allowed time to treat the underlying disease. He also argued that it was "spurious" to say that anyone had "come here and testified under oath - in fact these guys haven't - that she would have been anything other than the 20 percent . . . ." The superior court immediately stated that it would not rely on the unsworn letters.
Clement's lawyer then asked the court, if it did not accept the letters as admissions by Michael, to reopen the hearing to allow Dr. Kiraly's testimony. The court again stated that it would give his letter little weight if it were admitted; it then gave Clement an opportunity to apply "further" and to explain why Clement's lawyer had not offered testimony from Dr. Kiraly earlier. When counsel again offered to call Dr. Kiraly, the court admitted both letters as evidence to remove "the issue" and stated that Dr. Kiraly's letter was unsworn and would be given "very little weight." The court then asked the lawyers if there were " nything further?" Clement's lawyer did not again ask to be allowed to call Dr. Kiraly. He did not object to the procedure the court adopted when it admitted the two letters into evidence after indicating it would give them "little weight." Nor, after the court stated that it would give the reports little weight, did Clement's lawyer ask for leave to present testimony from Dr. Kiraly to explain his letter or in lieu of it. Clement therefore did not preserve any possible claim that the court erroneously prevented her from calling Dr. Kiraly as a witness.
It also cannot be said that the superior court prevented Clement from offering better evidence from Dr. Kiraly, because there is no indication what he might have said. Clement made no offer of proof to establish that he would testify to anything beyond what he had st
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