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Clement v. Fulton4/8/2005
rior court's allocation decision does not contain an express finding as to Mary Fulton's life expectancy, it is difficult to review its decision on this issue. But in recognizing that Mary's estranged husband, Michael Fulton, "in terms of number of years, has a claim to a substantial percentage of the settlement" and reducing Michael's requested share based only on "the additional needs of the children," it appears that the superior court's decision was premised on Mary having a normal life expectancy. Yet it was undisputed that Mary Fulton suffered from acute leukemia, and the superior court admitted Dr. Kiraly's expert report, which stated that even with prompt diagnosis and timely start of induction chemotherapy regimens, seventy to eighty percent of patients with acute leukemia "will usually relapse within one year and succumb to their disease." Nowhere in the record is there evidence to support a finding that it was probable that Mary Fulton would have a normal life expectancy, even if her disease had been treated without delay. Because it appears that the superior court must have assumed that Mary would have had a normal life expectancy when it determined that her estranged husband, Michael Fulton, was entitled to a substantial percentage of the settlement proceeds paid to her estate, I would reverse the trial court's allocation decision.
Although the court frames the issue as whether it was error "for the superior court to reject Clement's assertion that Mary had a life expectancy of only one year," Clement makes a separate argument that "the trial court erred in concluding that Mary Fulton had a normal life expectancy." The majority has not addressed this question in its opinion, other than to remark that " n allocating wrongful death damages, the superior court should, absent reliable evidence to the contrary, assume that the decedent had a full life expectancy." But there was reliable evidence to the contrary in this case. Dr. Kiraly's admitted expert report stated that even with chemotherapy treatment, seventy to eighty percent of properly diagnosed patients with acute leukemia "will usually relapse within one year and succumb to their disease." And while the majority seems to fault Clement for submitting an unsworn expert report to which the trial court was entitled to give little weight, the trial court contributed to this problem.
When Dr. Kiraly's expert report was first proffered by Clement at the hearing, the trial court expressed concern that the opinion was unsworn. Clement's counsel accordingly requested "leave to just reopen the hearing for the purposes of . . . listening to [Dr. Kiraly's] testimony . . . as to that opinion letter and leave him open for cross-examination." The trial court evinced frustration that the doctor wasn't immediately available and stated that although Clement could make further application to open the record, Clement would have to explain why the doctor wasn't in court for the hearing. Clement's counsel responded by explaining that Dr. Kiraly was in California and that counsel had assumed that the doctor's opinion could be relied upon as an admission by Mike Fulton during the underlying litigation. Clement's counsel further suggested that if the court would not consider the letter without Dr. Kiraly's testimony, Dr. Kiraly could be made available by phone. The superior court replied that it would "just remove the issue and read the letter. It's admitted as evidence. Okay?"
Based on the trial court's decision to admit the letter in lieu of accepting Clement's offer to produce the doctor, the only evidence in the record specific to Mary Fulton indicated that her life expectancy would not be normal. Although "we ordinarily will not overturn a
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