      Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

NATHANIEL A. TODESCHI,                         )
                                               )        Supreme Court Nos. S-15542/15571
                      Appellant and            )
                      Cross-Appellee,          )        Superior Court No. 3AN-11-05283 CI
                                               )
              v.                               )        OPINION
                                               )
SUMITOMO METAL MINING                          )        No. 7167 – April 28, 2017
POGO, LLC,                                     )
                                               )
                      Appellee and             )
                      Cross-Appellant.         )
                                               )

              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, William F. Morse, Judge.

              Appearances: Michael W. Flanigan, Flanigan & Bataille,
              Anchorage, for Appellant/Cross-Appellee. Sean Halloran,
              Littler Mendelson, Anchorage, for Appellee/Cross-Appellant.

              Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
              Bolger, Justices.

              MAASSEN, Justice.

I.    INTRODUCTION
              A mine supervisor suffered back injuries over the course of his career and
required several surgeries. His employer terminated his employment following his
request for an accommodation and his renewed pursuit of a three-year-old workers’
compensation claim. The supervisor sued, alleging breach of the covenant of good faith
and fair dealing and unlawful discrimination based both on a disability and on his
assertion of the workers’ compensation claim. The employer defended on grounds that
the supervisor could no longer perform the essential functions of his job and had declined
an offered accommodation; it also asserted that it was not liable for the workers’
compensation claim. A jury returned a special verdict finding the employer liable for
breach of the covenant of good faith and fair dealing and awarding the supervisor
$215,000 in past lost income, but finding in the employer’s favor on the supervisor’s
other claims.
                The supervisor appeals. He argues that the superior court erred when
it (1) denied his motion for a directed verdict on whether he has a disability; (2) denied
his motion for judgment notwithstanding the verdict due to an inconsistency between the
jury’s decisions of two of his claims; (3) declined to give a burden-shifting or adverse
inference instruction based on alleged spoliation of evidence; and (4) raised a statute of
limitations defense by way of a jury instruction. The employer cross-appeals, arguing
that the superior court erred in excluding one of its witnesses.
                Seeing no error, we affirm. Because we resolve the appeal in the
employer’s favor, we do not reach the employer’s cross-appeal.
II.    FACTS AND PROCEEDINGS
       A.       Facts
                Nathaniel Todeschi began work at Pogo Mine in November 2005. The
mine was operated by Teck-Pogo, Inc., which later merged with another company to
form Sumitomo Metal Mining Pogo, LLC (Sumitomo), the defendant in this case.
Sumitomo stipulated in the trial court that, for purposes of employer liability, it was the
operator of Pogo Mine the entire time Todeschi worked there.



                                            -2-                                      7167

              Todeschi was promoted to a supervisor position after less than a year at the
mine. Sumitomo does not dispute that his work performance was at least acceptable.
              As a supervisor, Todeschi was responsible for the safety and production
targets of up to ten employees. He directed their activities, provided support, and
ensured their safety and efficiency. This required that he spend a large part of his
workday underground. According to Sumitomo’s job description, underground mine
supervisors could travel up to 30 miles in the mine during one 13-hour shift. For these
purposes Sumitomo provided both trucks and Kubota tractors; the tractors had minimal
suspension, but Sumitomo claimed it could neither completely eliminate their use nor
significantly improve their suspension.
              Todeschi had a history of job-related back injuries, which he testified were
aggravated whenever he had to drive a tractor. His first back surgery was before he
worked at Pogo Mine. He had another surgery in 2008, but it was ineffective; according
to Todeschi, he had a herniated disk that broke into fragments. He testified that in order
to continue working without pain he consumed so many painkillers that his doctor
thought he had cirrhosis of the liver. He had a back fusion in May 2009 to address the
problem.
              When Todeschi returned to work at the mine later that year, Paul Brunelle,
a Pogo general foreman, assigned him to a special project that kept him at a desk. When
the special project was completed Todeschi resumed his duties as an underground
supervisor. His physician had given him a full medical release with no restrictions, but,
according to Todeschi, the doctor had not anticipated that he would be required to drive
a tractor again.
              Todeschi soon sent an email to Chad Omaha, another Pogo general
foreman, stating that he would “not operate a Kubota tractor for any reason” because of

                                           -3-                                      7167

the risk of further injury to his back. He said Sumitomo was “asking [him] to choose
between [his] job and [his] ability to walk and have a normal life” and he had “made all
the compromises [he was] going to make on the issue.” He asked for other “suitable
reliable transportation . . . so that [he might] continue in [his] current capacity as a shift
supervisor” and concluded that he would “give it [until] Monday to see if suitable
arrangements are made[;] if not you do as you choose.” Todeschi apparently continued
working his shifts for awhile, using a truck. But in the meantime, Sumitomo supervisors
and the company’s attorney, Sean Halloran, began discussing by email how Todeschi’s
injury might be accommodated and whether he should be terminated instead.
              A few weeks after Todeschi’s email ultimatum, Sumitomo sent him to an
independent medical exam with Dr. John Michael James. Sumitomo’s human resources
manager, Thomas Brokaw, provided Dr. James with a newly drafted job description that
included a requirement that mine supervisors be able to “replace water pumps (lifting
60lbs to 250lbs depending on the pump being replaced) on their own.” Dr. James found
the lifting requirement to be unreasonable for even a healthy employee; he concluded
that Todeschi could lift items up to 50 pounds occasionally, should not lift anything more
than 40 pounds repetitively, and should be provided a truck as an accommodation.
              Having received Dr. James’s evaluation, Sumitomo terminated Todeschi’s
employment effective that day on grounds that he “could not perform his regular job due
to strict lifting limitations and other restrictions as indicated by [Dr. James].” Sumitomo
claims its motivation for firing Todeschi was his inability to drive a tractor, though the
termination notice did not say so. Todeschi contends, on the other hand, that Sumitomo
fired him because he requested the accommodation and because he had sought to reopen
a workers’ compensation claim he originally filed after his 2007 workplace injury.



                                             -4-                                        7167

              Todeschi testified that he abandoned the 2007 workers’ compensation claim
after Kim Witt, the Pogo human resources manager at the time, told him he would lose
his job if he pursued it. Todeschi testified that he used his private insurance to pay for
the required medical care but refused to release the workers’ compensation insurer,
which is why the claim remained open in 2010. Halloran, Sumitomo’s attorney, testified
that Todeschi’s renewed pursuit of the claim was irrelevant to Sumitomo because it
predated Sumitomo’s operation of the mine and was covered by its predecessor’s
insurance. Todeschi settled the claim for $80,000 in 2011, while this suit was pending.
              Todeschi filed his complaint against Sumitomo in February 2011. He
alleged claims for (1) discrimination on the basis of a disability under
AS 18.80.220(a)(1);1 (2) failure to accommodate his disability under the same statute;2
(3) breach of the implied covenant of good faith and fair dealing; and (4) discrimination
under AS 23.30.247(a) based on his assertion of the workers’ compensation claim.3




       1
             “Except as provided in (c) of this section, it is unlawful for (1) an employer
to refuse employment to a person, or to bar a person from employment, or to discriminate
against a person in compensation or in a term, condition, or privilege of employment
because of the person’s . . . physical or mental disability.” AS 18.80.220(a)(1).
       2
            Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 864 (Alaska 1978)
(“We are persuaded that a duty of reasonable accommodation should be read into
[AS 18.80.220(a)].”).
       3
              “An employer may not discriminate in hiring, promotion, or retention
policies or practices against an employee who has in good faith filed a claim for or
received benefits under this chapter. An employer who violates this section is liable to
the employee for damages to be assessed by the court in a private civil action.”
AS 23.30.247(a).
                                            -5-                                      7167

       B.	    Proceedings
              1.	    Todeschi’s motion for burden-shifting or an adverse inference
                     instruction based on Sumitomo’s alleged spoliation of evidence
              Thomas Brokaw, Sumitomo’s human resources manager at the time of
Todeschi’s termination, died before trial and without being deposed. Sumitomo
substituted its attorney Halloran on its witness list. It explained that Halloran had
discussed Todeschi’s termination with Brokaw and could testify about those discussions,
and it waived the attorney-client privilege to that extent.
              Todeschi opposed Halloran’s designation as a witness as untimely,
requesting in the alternative that Sumitomo produce all of Halloran’s written and
electronic legal advice for this case and any similar cases. The superior court allowed
Halloran’s testimony but ordered that Sumitomo produce his billing and phone records
for the matter, as well as any related communications or memoranda. The court
restricted the required production to the period from a month before Todeschi’s email
ultimatum to a month after his termination, but it noted that any records outside that
scope could be reviewed in camera, and it required Sumitomo to create a privilege log.
              Halloran turned over few emails and phone records and no billing records.
He testified that he never billed Sumitomo during 2010 and that he had destroyed any
notes when he changed law firms; that his former firm inadvertently destroyed all his
emails; and that some of his phone calls used a “voice over internet protocol” (VOIP)
system that did not create a record of the call. Emails between Halloran and Brokaw
were produced by Sumitomo, but the collection was not complete; Halloran testified that
“Brokaw kept the emails that he believed mattered to anything, and he deleted emails that
he thought were unimportant.”
              Todeschi moved for a shifting of the burden of proof on his discrimination
claims to Sumitomo, or in the alternative a jury instruction allowing an inference that any

                                            -6-	                                     7167

missing email, phone, and billing records of Halloran’s would have supported his case.
The superior court denied the motion, saying only, “I’m not giving a presumption
instruction. I don’t think that you’ve met the burden for that.”
             2.     Jury instruction arguably raising a statute of limitations defense
             Todeschi also objected to a jury instruction, contending that it invited the
jury to apply a statute of limitations defense that Sumitomo had never pleaded.
Instruction Number 12 read:
             You have heard testimony that Kim Witt engaged in certain
             conduct. Sumitomo cannot be held responsible for Witt’s
             conduct before 2009. However, if you find that Witt engaged
             in certain conduct before 2009 you may (but need not) further
             find that it provides context for Sumitomo’s actions or
             omissions in 2010.
Before trial Sumitomo had stipulated that “Teck-Pogo Inc. is the same entity as
Sumitomo Metal Mining Pogo, LLC. Although the name and corporate form were
changed when the company was sold a couple years ago, they are, in fact and law, one
and the same entity. Thus, . . . Kim Witt . . . [was a] Sumitomo employee[].”
             Todeschi argued that Instruction Number 12 effectively negated
Sumitomo’s stipulation of fact. He argued that the stipulation allowed him to causally
connect Witt’s actions in 2008 and his termination in 2010, but the instruction precluded
that argument when it said that Sumitomo could not “be held responsible for Witt’s
conduct before 2009.” Sumitomo countered that the instruction only prevented the jury
from finding it liable for Witt’s alleged threat, and Todeschi had not asserted a claim
based on the alleged threat itself; the claim Todeschi did bring involved his 2010 firing
by Sumitomo, and the instruction specifically allowed Todeschi to use Witt’s alleged
threat as background to that event.
             The court overruled Todeschi’s objection and gave Jury Instruction 12.


                                           -7-                                     7167

             3.     Directed verdict
             At the close of the evidence Todeschi moved for a directed verdict on the
issue of whether he had a disability. He argued that Dr. James’s evaluation conclusively
showed he was restricted from a class of jobs and therefore had a physical disability, as
defined by federal law, because he was substantially limited in the major life activity of
working. The argument relied on federal regulations and the Equal Employment
Opportunity Commission’s interpretation of the Americans with Disability Act
Amendments Act.4
             Sumitomo countered by pointing to Todeschi’s full medical release from
his own doctor, differing from Dr. James’s more guarded evaluation. Sumitomo also
argued that the jury might not believe that Todeschi’s claimed restrictions were
disabilities: While a lifting restriction might prevent him from doing some jobs, the one
cited in Dr. James’s evaluation was a restriction any average person might have and did
not prevent Todeschi from working at Pogo Mine. And no evidence suggested that an
inability to drive a tractor could constitute a physical disability; even if it prevented
Todeschi from being a mine supervisor, it did not necessarily bar him from an entire
class of jobs, which is what the legal definition of “disability” required.
             The superior court found Todeschi’s argument that he had a disability
“extremely strong” but denied his motion for directed verdict, concluding that whether




      4
             See 29 C.F.R. § 1630 (2013); ADA Amendments Act, Pub. L. No. 110-325,
122 Stat. 3553 (2008) (amending Americans with Disabilities Act, 42 U.S.C. §§ 12101­
12213; see also 6 Alaska Administrative Code (AAC) 30.910(b) (2007) (“In deciding
complaints of alleged discrimination under AS 18.80 in employment, state and local
government services, or public accommodations because of physical or mental disability,
the commission may use 42 U.S.C. 12101 – 12213 (Americans with Disabilities Act) and
relevant federal case law as a guideline.”).
                                           -8-                                      7167

he had a disability was a question of fact that the jury could reasonably answer either
way.
              4.     Motion for judgment notwithstanding the verdict
              The jury was asked to answer four questions about liability. It answered
“no” to three of them: (1) Whether Sumitomo terminated Todeschi’s employment “due
to a disability in violation of [AS] 18.80.[220]”; (2) whether Sumitomo “fail[ed] to make
a reasonable accommodation so that [Todeschi] could continue his employment”; and
(3) whether “Todeschi’s pursuit of workers’ compensation benefits” was “a substantial
factor in Sumitomo’s termination of his employment.” The jury answered “yes” to one
liability question: Whether Sumitomo “breach[ed] the covenant of good faith and fair
dealing when [it] terminated Todeschi’s employment.” For his one successful claim the
jury awarded Todeschi $215,000 in past lost income.
              Todeschi moved for a judgment notwithstanding the verdict, additur, or a
new trial. In support of a judgment notwithstanding the verdict — the only aspect of the
motion relevant to this appeal — Todeschi argued that he had conclusively proven his
claim for discrimination based on disability and that the jury’s special verdict was
necessarily inconsistent; he argued that the jury could only have found a breach of the
covenant of good faith and fair dealing on a view of the facts that also required it to find
disability discrimination.
              The superior court found no inconsistency in the jury verdict, however, and
denied Todeschi’s motion. This appeal followed.




                                            -9-                                       7167

III.   STANDARDS OF REVIEW

              We review the denial of a motion for judgment notwithstanding the verdict
(JNOV) using the same standard we use when reviewing a directed verdict.5 “[B]ecause
the sufficiency of the evidence to support a jury verdict is a question of law, our review
[of motions for JNOV and directed verdict] is de novo.”6 When we review a trial court’s
decision on a motion for directed verdict, “we must decide ‘whether the evidence, when
considered in the light most favorable to the nonmoving party, is such that reasonable
persons could not differ in their judgment.’ ”7 “[C]onflicting evidence is not to be
weighed and witness credibility is not to be judged on appeal.”8 We scrutinize JNOV
and directed verdict motions “under a principle of minimum intrusion into the right to
jury trial guaranteed under the Alaska Constitution. . . . If there is any doubt, questions
of fact should be submitted to the jury.”9
              We review the superior court’s decisions of discovery sanctions, such as
spoliation remedies, for abuse of discretion.10 “The choice of a particular sanction for
a discovery violation generally is a matter committed to the broad discretion of the trial



       5
           Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001) (citing Alaska Tae
Woong Venture Inc. v. Westward Seafoods, Inc., 963 P.2d 1055, 1062 (Alaska 1998)).
       6
              Cameron v. Chang-Craft, 251 P.3d 1008, 1018 (Alaska 2011).
       7
               Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008) (quoting Hagen Ins.,
Inc. v. Roller, 139 P.3d 1216, 1219 (Alaska 2006)); see also Cameron, 251 P.3d at 1017.
       8
              Cameron, 251 P.3d at 1017-18.
       9
             Id. (alteration in original) (quoting City of Delta Junction v. Mack Trucks,
Inc., 670 P.2d 1128, 1130 n.2 (Alaska 1983)).
       10
            Mills v. Hankla, 297 P.3d 158, 164-65 (Alaska 2013) (quoting Wooten v.
Hinton, 202 P.3d 1148, 1155 (Alaska 2009)).
                                             -10-                                    7167

court.”11 “We review a trial court’s findings of fact underlying its discovery sanction
determination for clear error and ‘will not declare a trial court’s finding to be clearly
erroneous unless, after a review of the entire record, we are left with a definite and firm
conviction that a mistake has been made.’ ”12 Whether there has been spoliation is a
finding of fact.13
              “ ‘Jury instructions involve questions of law to which we apply our
independent judgment.’ ‘When reviewing a trial court’s denial of a proposed instruction,
our inquiry focuses upon whether the instructions given, when read as a whole,
adequately inform the jury of the relevant law.’ ”14 “An error in jury instructions is
grounds for reversal only if it caused prejudice.”15 “In evaluating whether there has been
prejudicial error with regard to jury instructions, we put ourselves in the position of the
jurors and ‘determine whether the error probably affected their judgment.’ ”16




       11
              Powell v. Tanner, 59 P.3d 246, 253 (Alaska 2002).
       12
            Mills, 297 P.3d at 165 (quoting Spenard Action Comm. v. Lot 3, Block 1,
Evergreen Subdivision, 902 P.2d 766, 776 (Alaska 1995)).
       13
             See id. (explaining “[t]he superior court’s finding that there was no
spoliation was not clearly erroneous”).
       14
            City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting
Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012)).
       15
              Id. (quoting Thompson, 290 P.3d at 398-99).
       16
              Id. (quoting Thompson, 290 P.3d at 399).
                                           -11-                                      7167

IV.	   DISCUSSION
       A.	    Viewing The Evidence In The Light Most Favorable To Sumitomo, A
              Reasonable Jury Could Have Found That Todeschi Did Not Have A
              Disability.
              Alaska’s human rights statutes proscribe certain employment practices,
including “discriminat[ing] against a person in compensation or in a term, condition, or
privilege of employment because of the person’s . . . physical or mental disability.”17
“Physical or mental disability” is defined to mean “a physical or mental impairment that
substantially limits one or more major life activities.”18 “Major life activities,” in turn,
are defined as “functions such as caring for one’s self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.”19 Todeschi argues that the
trial court should have directed a verdict in his favor on whether he had a disability
within the meaning of these statutes — a predicate to his disability discrimination claim
— because the evidence at trial demonstrated conclusively that his lifting restrictions
substantially limited him in the “major life activity” of working.
              In support of this argument, Todeschi points to an example in the federal
regulations implementing the Americans with Disabilities Act Amendments Act:
              [I]f a person whose job requires heavy lifting develops a
              disability that prevents him or her from lifting more than fifty
              pounds and, consequently, from performing not only his or
              her existing job but also other jobs that would similarly
              require heavy lifting, that person would be substantially




       17
              AS 18.80.220(a)(1).
       18
              AS 18.80.300(14)(A).
       19
              AS 18.80.300(10).
                                           -12-	                                      7167

             limited in working because he or she is substantially limited
             in performing the class of jobs that require heavy lifting.[20]
Todeschi argues that this example and his own situation “match[] perfectly” and that
both Alaska’s anti-discrimination statute and the federal law it incorporates21 required
the conclusion that he had a disability as a matter of law.
             But whether the example matches Todeschi’s case depends on facts the jury
could reasonably have found in Sumitomo’s favor. First, Sumitomo presented evidence
that the lifting requirement did not prevent Todeschi from performing his “existing job.”
The job description given Dr. James for purposes of the independent medical exam —
stating a job requirement of “lifting 60lbs to 250lbs depending on the pump being
replaced” — was in Dr. James’s opinion unreasonable, but Sumitomo contended that as
reasonably interpreted it only described lifting with mechanical aids and that Todeschi
never actually had to lift anything so heavy by himself in order to perform his job.
             Second, the federal example requires the jury to find that Todeschi’s
inability to meet the lifting requirement barred him from a “class of jobs.” He points to
the uncontested expert testimony of a vocational counselor that he could not work in
several categories of jobs, but the jury could have chosen to assign no weight to that
testimony. Rather, using their own experience or relying on evidence such as Dr.
James’s opinion that the lifting requirement was “fairly unreasonable for a[n] uninjured
worker,” jurors may have found that Todeschi was no more restricted than an average
person. The jury may also have relied on Todeschi’s full medical release with no
restrictions that predated Dr. James’s evaluation to conclude that Todeschi was not
precluded from performing a “class of jobs.”


      20
             29 C.F.R. app. § 1630.2(j)(5) & (6) (2013) (emphasis added).
      21
             See supra note 4.
                                          -13­                                     7167
             In short, although Todeschi offered evidence sufficient to support a
conclusion that he was limited in the “major life activity” of working and therefore had
a disability, the jury was not required to accept it as true in light of the conflicting
evidence. We conclude that the superior court did not err when it denied Todeschi’s
motion for a directed verdict on the disability issue.
      B.	    A Reasonable Jury Could Consistently Find That Sumitomo Breached
             The Covenant Of Good Faith And Fair Dealing But Did Not
             Discriminate Against Todeschi On The Basis Of A Disability.
             Todeschi argues that because the jury found that Sumitomo breached the
covenant of good faith and fair dealing, it could not consistently find that the company
did not discriminate against him on the basis of a disability.22 Jury Instruction 26
informed the jury how to decide whether Sumitomo had breached the covenant:
             The defendant violated the implied promise of good faith and
             fair dealing if you find that it is more likely true than not true
             that the defendant deprived the plaintiff of a benefit of the
             contract:
             1.	    by acting in bad faith; or
             2.	    by acting in a manner that a reasonable person would
                    regard as unfair.




      22
              Although Alaska Civil Rule 50(b) generally limits motions for judgment
notwithstanding the verdict to parties who have moved for directed verdict “at the close
of all the evidence,” Todeschi was not required to make a directed verdict motion in
order to preserve his motion for judgment notwithstanding the verdict. He moved for
judgment notwithstanding the verdict “because of findings made in the special verdict,
rather than notwithstanding them.” Borgen v. A & M Motors, Inc., 273 P.3d 575, 584
(Alaska 2012) (emphasis in original). This is the exception to the usual procedural rule,
because “a jury’s verdict . . . could not have been known before the case was submitted
to the jury.” Alaska Interstate Constr., LLC v. Pacific Diversified Invs., Inc., 279 P.3d
1156, 1172 (Alaska 2012).
                                           -14-	                                   7167

Todeschi argues that the only act the jury could reasonably have found to satisfy either
requirement of this instruction is Sumitomo’s submission of the job description to Dr.
James suggesting that Todeschi was required to lift as much as 250 pounds as part of his
job, “then using the failure to meet those lifting requirements as the basis for a
termination.” Todeschi asserts that if the jury agreed the job description was unfair and
that Sumitomo fired him because of his failure to meet its requirements, it must have
believed that he was discriminated against because of a disability.
             But the jury’s verdicts can be harmonized. Instruction 26 allowed the jury
to consider a broad landscape of actions and motivations in determining whether
Sumitomo breached the covenant of good faith and fair dealing, requiring only a finding
that the defendant, at some point, acted “in a manner that a reasonable person would
regard as unfair.” Conversely, the instructions on disability discrimination required more
— and more specific — findings. Instruction 15, defining a “disability discrimination
claim under AS 18.80.220,” required Todeschi to “prove it is more likely true than not
true that: (1) . . . he is an individual who has a disability within the meaning of the
statute; [and] (2) . . . he could perform the essential functions of the position he held
(with or without reasonable accommodation).” The jury could reasonably conclude that
although Sumitomo acted “unfairly” by creating a job description that would give the
company an excuse for terminating Todeschi’s employment, Todeschi did not have a
disability discrimination claim as Instruction 15 defined it.
             Todeschi made arguments in the trial court that are consistent with this
harmonization of the jury’s verdicts. He successfully opposed a version of Instruction
26 that would have required a finding of discrimination as the basis for a breach of the
covenant, arguing that “[a] breach of the covenant of good faith and fair dealing is not
limited to discriminatory reasons for termination.” The court accordingly removed
language from the instruction that would have prevented the jury from finding a breach

                                          -15-                                      7167

of the covenant if Todeschi’s termination was based on a “permissible, that is[,] a non­
discriminatory reason.” (Emphasis added.)
             Thus, consistent with its instructions, the jury might have found that
Todeschi did not have a disability but that Sumitomo nonetheless acted unfairly during
the process of terminating him. Todeschi’s counsel argued repeatedly in closing that
Sumitomo’s managers knew that the job description was “rigged,” that its lifting
requirements “were false,” and that this was evidence “that Todeschi was treated
unfairly, in bad faith,” and in breach of the covenant of good faith and fair dealing. The
jury may have agreed.
             Alternatively, the jury might have found that Todeschi did have a disability
but that Sumitomo did not unlawfully discriminate against him on that basis but rather
terminated him lawfully because he could not perform the essential functions of his job
with or without reasonable accommodation. There was evidence from which the jury
could reasonably conclude that driving a tractor was an essential function of the job of
underground supervisor; there was also evidence that providing Todeschi with a truck
instead — the specific accommodation he demanded — was not “feasible for
[Sumitomo] under the circumstances,” as the jury instructions required.23 Steven Job,
a mine superintendent, testified that “an integral part of what [they] do in the
underground is driving tractors.” Todeschi conceded that he had been told driving a
tractor was part of his job.24 According to Larry Davey, a Pogo general manager, the

      23
                Jury Instruction No. 21A provided, in part, that “[t]o succeed on a claim
that the employer has failed to provide a reasonable accommodation, the employee must
prove . . . [t]hat the proposed accommodation would enable him to perform the essential
functions of the job and that the accommodation is feasible for the employer under the
circumstances.”
      24
             The jury was given a list of nine factors to consider in deciding “what the
                                                                           (continued...)
                                          -16-                                      7167

only way Sumitomo could ensure that Todeschi always had a truck available for his use
would be “to replace the entire fleet of tractors with trucks,” which “was certainly not
a viable option.” Davey testified that Sumitomo tested equipment to replace tractors
“many times during the years while [he] was at Pogo” but “at no point could we arrive
at a piece of equipment that had the reliability of tractors.” Paul Brunelle, a Pogo
underground mine general foreman, testified that trucks broke down about 60 percent of
the time when used underground. The jury was entitled to accept this evidence in
deciding that Todeschi — if he had a disability — could not perform the essential
functions of his job and that the accommodation of driving a truck instead of a tractor
would either not allow him to perform those essential functions or would not be feasible
for his employer under the circumstances.25
              The jury’s special verdicts can thus be read consistently. Even if they
appeared to be inconsistent, “[w]e will not disturb a jury verdict if there is a theory which
reconciles the apparent inconsistencies.”26 When viewing the evidence in the light most
favorable to Sumitomo, we conclude that a reasonable jury could find a breach of the


       24
         (...continued)
essential functions of a job are” and was instructed that “[n]o one factor is necessarily
controlling.” “The employer’s judgment as to which functions of the job are essential”
was one of those nine factors.
       25
              There was also evidence from which the jury could conclude that Todeschi
refused a reasonable accommodation: Davey testified that he approved a “surface
trainer” job for Brokaw to offer Todeschi. Todeschi, though denying he was offered
such a job, conceded that “[t]here was a mention of a surface trainer job” in his
discussions with Brokaw but he voiced his concerns about the possible difference in pay,
including loss of the “underground bonus.”
       26
               Yang v. Yoo, 812 P.2d 210, 215 (Alaska 1991); see also Conley v. Alaska
Commc’ns Sys. Holdings, Inc., 323 P.3d 1131, 1141-42 (Alaska 2014) (affirming the
trial court’s denial of JNOV because the court could reconcile the jury’s verdict).
                                            -17-                                       7167

covenant of good faith and fair dealing and also find, consistently, that Todeschi did not
prove the elements of a claim for discrimination based on disability. We therefore affirm
the superior court’s denial of Todeschi’s motion for a judgment notwithstanding the
verdict.
       C.	    The Superior Court Did Not Abuse Its Discretion When It Denied
              Todeschi’s Request For A Spoliation Remedy.
              Todeschi moved in limine that the burden of proof on his discrimination
claims be shifted to the defense or, alternatively, that the jury be given an adverse
inference instruction based on Sumitomo’s alleged spoliation of evidence, citing the
absence of records — billings, phone records, and emails — memorializing the
discussions between Sumitomo and Halloran, its attorney, at the time of Todeschi’s
termination. Todeschi argued that this evidence might show Sumitomo’s improper
motivations for firing him, relevant to his discrimination claims, and that the jury should
at least be instructed it could infer that the evidence would favor his case. On appeal he
contends that the superior “court erred in refusing to give an appropriate instruction in
light of the spoliation of evidence.”
              The superior court did not decide Todeschi’s motion until ruling on
objections to proposed jury instructions. The court then denied the motion, saying only
that Todeschi had not “met the burden for [a spoliation instruction].” We conclude this
was not an abuse of discretion.
              1.	    It was not an abuse of discretion to refuse to give a burden-
                     shifting instruction.
              We first addressed remedies for negligent spoliation in Sweet v. Sisters of
Providence in Washington, in which we set out the steps that must precede the giving of




                                           -18-	                                     7167

a burden-shifting instruction.27 First, it is the plaintiff’s burden to “establish to the
satisfaction of the court that the absence of the records hinders his ability to establish a
prima facie case.”28 This requires the plaintiff to demonstrate how “the absence of an
adequate [record] sufficiently hinders [the] plaintiff’s ability to proceed.”29 Second,
“burden shifting should only occur when the essential . . . records are missing through
the negligence or fault of the adverse party.”30 “Negligence or fault” are concepts that
depend on the existence of a duty to preserve the records.31

       27
               895 P.2d 484, 490-93 (Alaska 1995). Todeschi does not argue on appeal
for an independent tort based on intentional spoliation. We have held that “where
traditional discovery sanctions can sufficiently redress the harm caused by the wrongful
withholding of evidence, those remedies are exclusive.” Allstate Ins. Co. v. Dooley, 243
P.3d 197, 200 (Alaska 2010).
       28
             Sweet, 895 P.2d at 491 (quoting Pub. Health Tr. of Dade Cty. v. Valcin, 507
So. 2d 596, 599 (Fla. 1987) (relying in turn on Patrick v. Sedwick, 391 P.2d 453, 457
(Alaska 1964))).
       29
                  Id. (quoting Valcin, 507 So. 2d at 601) (emphasis added); Zaverl v. Hanley,
64 P.3d 809, 821 (Alaska 2003) (distinguishing Sweet on the ground that “[i]n this case,
. . . the estate advances no plausible theory demonstrating that the delay [in the defendant
hospital’s preparation of a patient’s discharge summary] prejudiced its case”).
       30
              Sweet, 895 P.2d at 491 (citing Valcin, 507 So. 2d at 599).
       31
              See Power Constructors, Inc. v. Taylor &Hintze, 960 P.2d 20, 29-30 & n.9
(Alaska 1998) (distinguishing Sweet in part because of the plaintiff’s lack of evidentiary
support for its “general allegation that [the defendant] had an obligation to preserve the
evidence” or any explanation “why [the defendant] should be held to a superior duty of
preservation than [the plaintiff] itself”); In re Standard Jury Instructions in Civil Cases
— Report No. 15-01, 192 So. 3d 1183, 1187 (Fla. 2016) (per curiam) (noting that a
burden-shifting jury instruction “applies only when the court has determined that there
was a [legal] duty” to maintain the evidence); Martino v. Wal-Mart Stores, Inc., 908
So. 2d 342, 348 (Fla. 2005) (Wells, J., concurring) (“It is fundamental to the entire legal
basis for spoliation of evidence that the owner or possessor of property have a legally
                                                                              (continued...)
                                            -19-                                       7167

              When the two elements of negligent spoliation are met, the party who might
have benefitted from the missing evidence is entitled to a rebuttable presumption that the
missing evidence would support its case.32 Though this presumption is rebuttable, “[i]t
is not overcome until the trier of fact believes that the presumed fact has been overcome
by whatever degree of persuasion is required by the substantive law of the case.”33 We
held in Sweet that “the trial court should have adopted a rebuttable presumption that [the
defendant hospital] was medically negligent in treating [the plaintiff] and that this
negligence legally caused [the plaintiff’s] injuries” because the hospital failed to maintain
its patient’s medical records, some of which would likely have contained substantive
information directly relevant to the plaintiff’s claims: signed informed consent forms,
nursing records from the day the plaintiff suffered a prolonged seizure allegedly resulting
in brain damage, and “a contemporaneously created record” of that incident from the
treatment room.34
              On the other hand, in another medical malpractice case, Zaverl v. Hanley,
we found no error in the trial court’s refusal to presume negligence when a hospital
discharge summary was prepared 45 days after the patient’s discharge.35 In contrast to
the facts of Sweet, the record in Zaverl was not absent but delayed, and the plaintiff did




       31
        (...continued)

defined duty to maintain or preserve the property.”).

       32
              Sweet, 895 P.2d at 492.
       33
              Id. (quoting Valcin, 507 So. 2d at 600-01).
       34
              Id. at 490, 492.
       35
              64 P.3d 809, 820-21 (Alaska 2003).
                                            -20-                                       7167

not explain how the record would have been different had it been timely prepared or any
other way in which his case was prejudiced.36
             In Miller v. Phillips we affirmed the superior court’s rejection of a burden-
shifting instruction informing the jury that it must presume a nursing note was complete
and accurate and that the health-care providers had the burden of proving they performed
any procedures not described in the note.37 We found Sweet inapposite because it was
“expressly based . . . on two uncontroverted factors: the hospital’s negligence in losing
the records and the plaintiffs’ inability to establish a convincing prima facie case . . .
without them.”38 We explained that in Miller “there was no uncontroverted proof of lost
or inadequate records[; t]o the contrary, the adequacy and completeness of the medical
records was a hotly disputed factual issue.”39 We noted further that the “alleged
deficiencies in the delivery-room records” did not “hinder the [plaintiffs] in presenting
a prima facie case of malpractice,” but rather allowed them “to attack [the nurse’s] trial
testimony as inconsistent with her notes and therefore incredible.”40
             In this case, although Todeschi asserted that some records were missing,
he failed to demonstrate why their absence hindered his ability to establish a prima facie
case. First, with regard to billing records, Halloran admitted he created some records of
his time but destroyed them when he left his former firm in March 2011 (about the time
Todeschi filed this lawsuit); he testified that he never billed Sumitomo for the work he



      36
             Id. at 821.
      37
             959 P.2d 1247, 1253-54 (Alaska 1998).
      38
             Id. at 1254.
      39
             Id.
      40
             Id.
                                          -21-                                      7167

did for it in 2010 because “it wasn’t an amount of money that was worth putting any
further effort into, and so [he] didn’t have the bill go out.” Todeschi argues that the
missing billing records would “provide insight” and that their absence is “obviously
prejudic[ial],” but he does not explain how or why.
              As for phone records, Halloran’s land-line calls were reflected in his former
firm’s records but some calls he testified about were not. Thus Todeschi was given
records that showed calls between Halloran and Brokaw, and their length, on the day
Todeschi was sent for his medical evaluation with Dr. James, but he had no records to
confirm Halloran’s testimony that he made two calls to Brokaw on May 11, 2010, the
day Todeschi was fired. But Todeschi again does not plausibly explain how his case
would be strengthened by records that showed simply when calls were made.
              Finally, as for emails, Sumitomo produced a number of them between
Brokaw and Halloran, including a lengthy and substantive one Todeschi relied on
heavily in post-trial briefing as definitive proof of Sumitomo’s unlawful intent.41 But
again — especially given the evidence he had of Sumitomo’s reasoning process —
Todeschi does not explain why his lack of additional emails “sufficiently hinder[ed] [his]
ability to proceed” in establishing a prima facie case.42
              Todeschi did posit that the missing evidence would aid him in “cross­
examin[ing] Halloran about his alleged email and phone communications with Brokaw


       41
              This email discussed Sumitomo’s options for accommodating Todeschi’s
claimed disability before concluding: “If, on the other hand, his contributions are such
that the mine would just as soon have someone else in the position, or if this is just one
instance in a string of his acting like a prima donna, then his refusal to perform the task
of driving the tractor presents an opportunity to terminate his employment, replace him,
and move on.”
       42
            Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 491 (Alaska 1995)
(quoting Pub. Health Tr. of Dade Cty. v. Valcin, 507 So. 2d 596, 601 (Fla. 1987)).
                                           -22-                                      7167

wherein he claims they discussed Brokaw’s reasons for terminating Todeschi,” but he
had other evidence on which to rely to accomplish that goal. And, as in Miller, the gaps
in the record gave Todeschi’s counsel the opportunity to attack Halloran’s credibility in
closing arguments, when he argued essentially that evidence had been purposely
withheld because it would have shown that Todeschi was terminated for reasons that
violated the law.
             We conclude that the facts of this case are closer to those in Miller and
Zaverl than to those in Sweet. Although some of Halloran’s records are missing,
Todeschi does not demonstrate a plausible theory of how their absence “sufficiently
hinder[ed] [his] ability to proceed” in establishing a prima facie case.43 We review a
superior court’s decision whether to grant sanctions for alleged spoliation, including
whether to give a presumption instruction, for abuse of discretion,44 and we see no abuse
of discretion here.
             Because we conclude that Todeschi’s claim fails to satisfy the first element
of a spoliation claim — that loss of the evidence sufficiently hindered his ability to
establish a prima facie case — we do not need to decide whether he proved the second
element, “negligence or fault” on Sumitomo’s part.45 But we do note that while Zaverl,



      43
             Id. at 491 & n.6 (quoting Valcin, 507 So. 2d at 601).
      44
             Mills v. Hankla, 297 P.3d 158, 162-63, 164-65 (Alaska 2013).
      45
              Sweet, 895 P.2d at 491 (“[B]urden shifting should only occur when the
essential medical records are missing through the negligence or fault of the adverse
party.” (citing Valcin, 507 So. 2d at 599)); see also Doubleday v. State, Commercial
Fisheries Entry Comm’n, 238 P.3d 100, 106 (Alaska 2010) (“In order to obtain the
benefit of the spoliation of evidence doctrine, Doubleday must . . . produce some
evidence that the records are missing through the intentional or negligent act of the
adverse party.”).
                                          -23-                                     7167

Miller, and Sweet involved the well-recognized duty of a medical care provider to create
and maintain medical records,46 the source of a duty in this case is less obvious.47
             2.	    Any error in refusing to give a permissible inference
                    instruction was harmless.
             As an alternative to burden-shifting, Todeschi also requested a less severe
remedy: a jury instruction allowing the jury to make an adverse inference from
Sumitomo’s destruction of evidence. Todeschi’s Proposed Instruction 24 would have
instructed the jury that if it concluded that Halloran or Brokaw intentionally deleted
emails regarding Todeschi’s request for an accommodation, it could “infer from this
fact” the additional fact that “the deleted emails would have proven a discriminatory
intent” on Brokaw’s part when he decided to terminate Todeschi’s employment and that

      46
               We recognized a medical care provider’s duty to create and preserve
medical records in Patrick v. Sedwick, 391 P.2d 453, 457 (Alaska 1964) (holding that a
surgeon “was obligated to his client to prepare” a report that “described accurately and
fully . . . everything of consequence that he did and which his trained eye observed
during the operation”).
      47
               To establish a duty to preserve evidence, Todeschi relies on the claim he
filed with the Equal Employment Opportunity Commission a month after his termination
and the notice the Alaska Human Rights Commission then sent Sumitomo instructing the
company not to delete Todeschi’s personnel records. Other courts recognize that a duty
to preserve evidence may arise as soon as litigation is reasonably foreseeable. See, e.g.,
League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 391 (Fla. 2015); Phillips
v. Harmon, 774 S.E.2d 596, 605 (Ga. 2015); Ihli v. Lazzaretto, 864 N.W.2d 483, 485-86
(N.D. 2015). But we are directed to no evidence that Brokaw, who was described as a
regular deleter of nonessential emails, deleted relevant emails after he received the
EEOC notice. And Halloran, the attorney, had no apparent duty to Todeschi to keep
records of his time, his phone calls, and his work product, and no reason to believe that
his records (such as they were) would be discoverable until Brokaw died two years after
Todeschi’s termination and Sumitomo sought to substitute Halloran as a witness in
Brokaw’s stead. See, e.g., Lewis v. Bloom, 628 P.2d 308, 310 (N.M. 1981) (upholding
trial court’s refusal to impose spoliation sanctions where “[t]he tape recording was the
attorney’s work product which may be discovered only upon a showing of good cause”).
                                          -24-	                                        7167

the emails “were destroyed for the purpose of concealing that evidence.” The proposed
instruction made clear that the jury was “not required to” make the inference. The court
refused to give the proposed instruction but told Todeschi’s counsel that he could ask the
jury to draw an inference from the records’ nonexistence.
              A permissible adverse inference, unlike the burden shifting addressed in
Sweet, merely allows “the inference that the evidence was lost because it was damaging
to the opposing party’s case.”48 The inference does not shift the burden of proof at trial49
but rather allows “[a] detrimental conclusion drawn by the fact-finder from a party’s
failure to produce evidence that is within the party’s control.”50 The inference may be
the subject of a jury instruction, or, as here, the nonspoliating party may be allowed to
argue for the inference in closing arguments.51


         48
              Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 394 (Fla. Dist. App.
2012).
         49
             Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. Dist. App. 2006)
(citing Anesthesiology Critical Care & Pain Mgmt. Consultants v. Kretzer, 802 So. 2d
346, 351 (Fla. Dist. App. 2001)).
         50
              Inference, BLACK’S LAW DICTIONARY (10th ed. 2014).
         51
              See Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 339
(D.N.J. 2004) (approving and adopting a magistrate’s “proposed spoliation inference
jury instruction”); Osmulski, 93 So. 3d at 394 (allowing inference to be presented in
argument); Palmas Y Bambu, S.A. v. E. I. Dupont De Nemours & Co., 881 So. 2d 565,
581 (Fla. Dist. App. 2004) (“[T]he option of applying such an inference should have
been limited to the arguments of counsel.”); Martino v. Wal-Mart Stores, Inc., 835 So. 2d
1251, 1257 n.2 (Fla. Dist. App. 2003) (“[W]hile counsel is free to make arguments
concerning the adverse inference created by Wal-Mart’s failure to produce the shopping
cart and videotape, a jury instruction on this matter is not appropriate.”); Duquesne Light
Co. v. Woodland Hills Sch. Dist., 700 A.2d 1038, 1050 (Pa. Commw. 1997) (“[W]here
evidence has been destroyed, referral of the spoliation issue to a jury with accompanying
instructions [on permissible inference] is the proper and advisable course of action.”).
                                           -25-                                       7167

              We have not previously discussed permissive adverse inference instructions
as a remedy for spoliation, but we have long recognized a trial court’s need for flexibility
in determining sanctions for discovery violations.52 “As with any discovery abuse or
evidentiary issue, there is no one remedy that is appropriate for every incidence of
spoliation; the trial court must respond appropriately based upon the particular facts of
each individual case.”53 A number of courts follow a “totality of the circumstances”
approach to determining whether to impose a sanction and what the sanction should be.
Such an approach generally considers three factors: (1) “the degree of fault of the party
who altered or destroyed the evidence”; (2) “the degree of prejudice suffered by the
opposing party”; and (3) “whether there is a lesser sanction that will avoid substantial
unfairness to the opposing party and, where the offending party is seriously at fault, will
serve to deter such conduct by others in the future.”54 No single factor is dispositive, and



       52
              See Allstate Ins. Co. v. Dooley, 243 P.3d 197, 203 (Alaska 2010) (“Civil
Rule 37 grants trial courts broad discretion to fashion remedies for discovery order
violations. A court may consider the nature and severity of the violation, the prejudice
to the opposing party, and any other factors it deems appropriate.”); Powell v. Tanner,
59 P.3d 246, 253 (Alaska 2002) (“The choice of a particular sanction for a discovery
violation generally is a matter committed to the broad discretion of the trial court. . . .”);
Grimes v. Haslett, 641 P.2d 813, 822 (Alaska 1982) (“The trial court has broad
discretion in imposing sanctions respecting Rule 26(e), as it does under Rule 37. . . .”).
       53
              Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998); see also Brookshire
Bros. v. Aldridge, 438 S.W.3d 9, 21 (Tex. 2014) (“[T]he remedy crafted by the trial court
must be proportionate when weighing the culpability of the spoliating party and the
prejudice to the nonspoliating party.” (citation omitted)); Schmid v. Milwaukee Elec.
Tool Corp., 13 F.3d 76, 81 (3d Cir. 1994) (“That sanction was not commensurate with
the limited fault and prejudice present in this case.”).
       54
             Schmid, 13 F.3d at 79; see also, e.g., Apple Inc. v. Samsung Elecs. Co., 888
F. Supp. 2d 976, 992 (N.D. Cal. 2012); Tatham v. Bridgestone Ams. Holding, Inc., 473
S.W.3d 734, 746-47 (Tenn. 2015) (applying similar four-factor test).
                                            -26-                                        7167

the trial court need not apply equal weight to every factor. Under such a test, thus, the
spoliator’s intent is a consideration but not necessarily determinative,55 and a party that
has not shown its entitlement to a burden-shifting instruction may nevertheless be
allowed a permissive adverse inference.56
              However, because the logical underpinning of the adverse inference is that
the evidence would not have been destroyed had it not been damaging to the spoliator’s
case,57 most jurisdictions still require that the spoliator have acted in bad faith or at least


       55
              See Apple, Inc., 888 F. Supp. 2d at 992 (“[W]hile a finding of bad faith is
not a prerequisite for an adverse inference sanction, ‘a party’s motive or degree of fault
in destroying evidence is relevant to what sanction, if any, is imposed.” (quoting UMG
Recordings, Inc. v. Hummer Winblad Venture Partners (In re Napster, Inc. Copyright
Litig.), 462 F. Supp. 2d 1060, 1066-67 (N.D. Cal. 2006))); Tatham, 473 S.W.3d at 746
(“Whether the conduct involved intentional misconduct simply should be one of the
factors considered by the trial court.”).
       56
              See Osmulski v. Oldmar Fine Wine, Inc., 93 So. 3d 389, 394 (Fla. Dist.
App. 2012) (“[I]n a case like this which does not involve a statutory duty to provide
medical records, the more appropriate remedy — if [the plaintiff] had proven entitlement
to it — would be an adverse inference instruction from which a jury could infer that the
videotape in this case was unfavorable to [the defendant].”); American Hosp. Mgmt. Co.
of Minn. v. Hettinger, 904 So. 2d 547, 550-51 (Fla. Dist. App. 2005) (holding it was
error to give a burden-shifting instruction where the defendant did not have a clear duty
to preserve evidence, but that a permissive adverse inference instruction might be
appropriate on remand).
       57
              Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553-54 (6th Cir. 2010) (“[I]f
there was ‘no notice of pending litigation, the destruction of evidence does not point to
consciousness of a weak case’ . . . .” (quoting Joostberns v. United Parcel Servs., Inc.,
166 F. App’x 783, 797 (6th Cir. 2006))); Testa v. Wal-Mart Stores, Inc., 144 F.3d 173,
177 (1st Cir. 1998) (explaining the inference’s rationale as a “commonsense notion that
a party who destroys a document (or permits it to be destroyed) when facing litigation,
knowing the document’s relevancy to issues in the case, may well do so out of a sense
that the document’s contents hurt his position” (citing Beil v. Lakewood Eng’g & Mfg.
                                                                           (continued...)
                                             -27-                                        7167

negligently before imposing any sanction.58 The Florida Supreme Court — which we
followed in adopting the burden-shifting presumption59 — takes a different tack. It has
approved jury instructions that, while requiring burden-shifting if there has been a breach
of a legal duty to maintain the lost records, allow an adverse inference when (1) a party
caused evidence “to be unavailable, while it was within [the party’s] possession, custody,
or control,” and (2) the evidence “would have been material in deciding the disputed
issues in [the] case.”60



       57
        (...continued)
Co., 15 F.3d 546, 552 (6th Cir. 1994))); Phillips v. Covenant Clinic, 625 N.W.2d 714,
718 (Iowa 2001) (“The evidentiary value of the inference is derived from the common
sense observation that a party who destroys a document with knowledge that it is
relevant to litigation is likely to have been threatened by the document.”).
       58
               See, e.g., Beers v. Bayliner Marine Corp., 675 A.2d 829, 833 (Conn. 1996)
(“[T]he spoliator must be on notice that the evidence should be preserved.”); Kippenhan
v. Chaulk Servs., Inc., 697 N.E.2d 527, 530 (Mass. 1998) (“Sanctions may be appropriate
for the spoliation of evidence that occurs even before an action has been commenced, if
a litigant or its expert knows or reasonably should know that the evidence might be
relevant to a possible action.”); State v. Barnes, 777 A.2d 140, 145 (R.I. 2001) (“Such
a presumption or inference ordinarily would arise where the act was intentional or
intended to suppress the truth, but ‘does not ordinarily arise where the destruction was
a matter of routine with no fraudulent intent.’ ” (citing 29 AM. JUR. 2D Evidence § 244
at 256)).
       59
             See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 491 (Alaska
1995) (citing Pub. Health Tr. of Dade Cty. v. Valcin, 507 So. 2d 596, 599-601 (Fla.
1987)).
       60
             In re Standard Jury Instructions in Civil Cases — Report No. 15-01, 192
So. 3d 1183, 1186 (Fla. 2016); see also League of Women Voters of Florida v. Detzner,
172 So. 3d 363, 391 (Fla. 2015) (“Even in the absence of a legal duty, . . . the spoliation
of evidence results in an adverse inference against the party that discarded or destroyed
the evidence.”).
                                           -28-                                      7167

              We applied an adverse inference from the loss of evidence in Thorne v.
Department of Public Safety,61 which Todeschi cites in his brief. In Thorne we held that
due process required the State to preserve videotape of a driver’s performance on field
sobriety tests, made in the course of his arrest for driving under the influence, for use in
a later license revocation proceeding.62 In fashioning a sanction we considered “the
degree of culpability on the part of the [S]tate, the importance of the evidence lost, the
prejudice suffered by the accused, and the evidence of guilt adduced at the trial or
hearing.”63 We decided that the videotape evidence was important, that its loss
“infringed Thorne’s ability to fully contest the issue” of whether he appeared inebriated
at the time of his arrest, and that the burden on the State to preserve the videotape was
slight.64 We concluded that “considerations of fundamental fairness dictate that where
the burden of preservation is so slight,” the State bore “a heavy burden in justifying [the
evidence’s] destruction,” a burden that it failed to carry.65 We remanded the case to the
hearing officer in the license revocation proceeding “with directions to presume that the
videotape would have been favorable to Thorne”;66 the inference was thus required rather
than permissive.
              We have never applied Thorne’s due process analysis to a civil case in
which Sweet’s burden-shifting remedy for spoliation was available to address the same

       61
              774 P.2d 1326 (Alaska 1989).
       62
              Id. at 1330.
       63
             Id. at 1331 (citing Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980); State
v. Contreras, 674 P.2d 792, 821 (Alaska App. 1983)).
       64
              Id. at 1330-31.
       65
              Id. at 1330-31.
       66
              Id. at 1331.
                                           -29-                                       7167

circumstances: i.e., the lost evidence was clearly important and the party that lost it
should have recognized the need to preserve it.67 And we decline to decide today
whether a permissive inference instruction must necessarily be considered as an
alternative to a burden-shifting instruction, or what a litigant has to show to be entitled
to a permissive inference instruction under Alaska law. Several considerations dissuade
us from deciding these issues. First, adverse inference instructions take different forms
in different jurisdictions, particularly with regard to whether a duty to preserve the
evidence is a prerequisite, and the advantages of the varied approaches have not been
briefed in this appeal.68 Second, even if Alaska law were clear on this issue and the
superior court had refused to give an instruction stating the law, we would not
necessarily find error, as we review such decisions for abuse of discretion.69 And third,
even if the failure to give the proposed instruction was an abuse of discretion, on this
record it could only have been harmless.
              As noted above, when the superior court denied Todeschi’s request for an
adverse inference instruction, it invited him to make the same point in argument, which




         67
              See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 491 (Alaska
1995).
         68
              In support of his cursory argument for a permissive adverse inference,
Todeschi cites only Thorne, 774 P.2d at 1330-31, as he did below. Sumitomo’s briefing
on the issue concerns itself only with the facts.
         69
              Mills v. Hankla, 297 P.3d 158, 165 (Alaska 2013) (finding no clear error
in superior court’s conclusion that relevant records were not missing from personnel file
and “that it was not an abuse of discretion for the superior court to deny sanctions”);
Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000) (“The decision whether to include
a particular instruction rests with the discretion of the trial court.” (quoting Coulson v.
Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n.21 (Alaska 1999))).
                                           -30-                                      7167

his counsel did strongly and repeatedly.70 Argument may help clarify instructions or
ameliorate defects in them.71 And the spoliation theme of Todeschi’s argument was
supported by one of the jury instructions that was given, informing the jury that “[i]f
weaker and less satisfactory evidence is offered when it appears that stronger and more
satisfactory evidence was within the power of one party to produce, the evidence offered
should be viewed with caution.”
             We conclude that the jury was made well aware that it was free to draw an
adverse inference from missing telephone records, billing records, and emails and that
the instructions that were given did not conflict with this perception. The burden of
proving prejudicial error rests on the appellant.72 On this record we cannot say that the
lack of a permissible adverse inference instruction probably affected the jurors’




      70
               Todeschi’s counsel argued that records of communications in a certain time
period had “gone poof” and that “[c]oincidentally, or not so coincidentally, Halloran
testified that he destroyed [legal bills] about the same time the lawsuit in this case was
filed”; that a deleted email from Halloran to Brokaw “might have also had a message”
acknowledging the illegality of “the job description with the 250-pound lifting
requirement”; that Halloran had “a severe credibility problem” because he had “admitted
that his law firm and Brokaw had destroyed evidence in this case, including his own
billing records and attachments to e-mails,” leaving the jury with “unrefuted” evidence
that Sumitomo had retaliated against Todeschi for pursuing his worker’s compensation
claim; and that the destruction of emails and phone records “to confirm that [Sumitomo]
did anything” was “an uncommon thing to happen” — “it is not usual to have records
destroyed, people admitting they destroyed them.”
      71
             See Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) (“[W]e have
repeatedly held that ambiguities and potential flaws in jury instructions can be cured by
the arguments of the parties.”); Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993)
(“The parties’ arguments can cure defects or omissions in jury instructions.”).
      72
             City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004).
                                          -31-                                      7167

judgment. We therefore conclude that any error in failing to give such an instruction
must have been harmless.73
       D.	    We Cannot Conclude That The Jury Instruction Arguably Raising An
              Untimely Statute Of Limitations Defense Probably Affected The
              Verdict.
              Todeschi alleged that the former human resources manager at Pogo Mine,
Kim Witt, threatened him in 2008 that if he continued to pursue a worker’s compensation
claim based on his 2007 injury “[t]here would be repercussions, up to and possibly
including [Todeschi’s] job.” This allegation, he contended, supported his claim that he
was fired in 2010 in retaliation for his resurrection of the workers’ compensation claim.
On appeal he argues that Jury Instruction 12 unlawfully complicated his workers’
compensation discrimination claim by advising the jury of a statute of limitations defense
that Sumitomo had never actually raised. The instruction provided:
              You have heard testimony that Kim Witt engaged in certain
              conduct. Sumitomo cannot be held responsible for Witt’s
              conduct before 2009. However, if you find that Witt engaged
              in certain conduct before 2009 you may (but need not) further
              find that it provides context for Sumitomo’s actions or
              omissions in 2010.
(Emphasis added.) The statute of limitations for workers’ compensation discrimination
claims is two years, and Todeschi brought his claim in February 2011.74



       73
              Id. (stating that we evaluate whether an erroneous jury instruction “was
prejudicial by putting ourselves ‘in the position of the jurors and determining whether
the error probably affected their judgment’ ” (quoting Gen. Motors Corp. v. Farnsworth,
965 P.2d 1209, 1214 (Alaska 1998))).
       74
              AS 09.10.070(a) (“Except as otherwise provided by law, a person may not
bring an action . . . upon a liability created by statute . . . unless the action is commenced
within two years of the accrual of the cause of action.”).
                                            -32-	                                       7167

              Sumitomo never raised a statute of limitations defense before trial. The
assertion of a defense for the first time mid-trial, by way of a jury instruction, would
likely be unfairly prejudicial.75 We note that Sumitomo took advantage of the jury
instruction to argue in its closing that “Mr. Witt’s conduct cannot form the basis of a
finding against Sumitomo in this case. That’s because of statute of limitations issues.”
              On the other hand, as Sumitomo argues, there was no apparent reason for
it to assert the statute of limitations as an affirmative defense before trial. The causes of
action Todeschi alleged in his 2011 complaint and pursued at trial were based on his
termination in 2010.76 Witt’s alleged conduct in 2008, as described in Todeschi’s
complaint, was relevant to Todeschi’s claim that he had been unlawfully terminated for
pursuing a workers’ compensation claim, but the challenged jury instruction specifically
allowed the evidentiary use of Witt’s conduct to “provide[] context for Sumitomo’s
actions or omissions in 2010.” Accordingly, Todeschi’s counsel relied heavily on Witt’s
actions in his closing argument, telling the jury that “Sumitomo, here in court, did not
seriously contest that Kim Witt threatened Todeschi with his job, and that Todeschi
acquiesced only under pressure”; that Witt’s threat was realized when Todeschi renewed

       75
             Barrett v. Byrnes, 556 P.2d 1254, 1255 (Alaska 1976) (holding that
defendants waived a statute of limitations defense when it “was not raised prior to trial
or in the opening statements of the appellee, but rather for the first time after the
appellant had rested her case” (internal citation omitted)). But see Blake v. Gilbert,
702 P.2d 631, 638-39 (Alaska 1985) (holding that the superior court did not abuse its
discretion by allowing a defendant to raise a new statute of limitations defense in his
amended answer because raising it before trial did not prejudice the plaintiff,
distinguishing Barrett), overruled on other grounds by Bibo v. Jeffrey’s Rest., 770 P.2d
290 (Alaska 1989).
       76
              The trial court asked Todeschi what damages he suffered from Witt’s
alleged threat in 2008, to which he responded, “[A]t that point it’s accumulating medicals
that aren’t being paid for.” He did not seek medical expenses as damages in this case,
and they do not appear relevant to his claims for wrongful termination.
                                            -33-                                       7167

his pursuit of the workers’ compensation claim in 2010; and that “given Witt’s threat and
the termination that quickly followed the reassertion of his compensation claim, it
certainly appears to have been at least one of the substantial factors in [Sumitomo’s]
decision to sack Mr. Todeschi.”
              Todeschi does not dispute that the jury was properly instructed on the
elements of his workers’ compensation discrimination claim. And Instruction 12
expressly preserved the jury’s ability to consider Witt’s conduct when deciding that
claim. To the extent the instruction at the same time precluded the jury from holding
Sumitomo responsible for Witt’s conduct, we agree that it presents an ambiguity — one
that could have been compounded by Sumitomo’s mention in closing argument of a
statute of limitations defense it had never pleaded. But even if erroneous, Instruction 12
“is grounds for reversal only if it caused prejudice.”77 We determine prejudice by putting
ourselves “in the position of the jurors and ‘determin[ing] whether the error probably
affected their judgment.’ ”78 Reading the jury instructions as a whole,79 and considering
the parties’ arguments to the jury about the evidence they should consider in deciding
Todeschi’s claims, we cannot conclude that the jury’s verdict was probably affected by
the ambiguity in Instruction 12. It is not probable that the jury believed it was precluded




       77
            City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting
Thompson v. Cooper, 290 P.3d 393, 398-99 (Alaska 2012)).
       78
              Id. (quoting Thompson, 290 P.3d at 399).
       79
             Id. (“When reviewing a trial court’s denial of a proposed instruction, our
inquiry focuses upon whether the instructions given, when read as a whole, adequately
inform the jury of the relevant law.” (quoting Thompson, 290 P.3d at 398)).
                                           -34-                                      7167

from considering Witt’s conduct in 2008 in deciding whether Sumitomo was liable for
its own conduct in 2010 in terminating Todeschi’s employment.80
V.     CONCLUSION
              We AFFIRM the judgment of the superior court.




       80
              Todeschi also argues “that the [superior court] should have given an
instruction that permitted an award of emotional distress damages” for his claim for
breach of the covenant of good faith and fair dealing “under the unique facts of this
case.” Such damages are not ordinarily recoverable on contract claims. See Hancock
v. Northcutt, 808 P.2d 251, 258-59 (Alaska 1991) (discussing the types of contracts,
“highly personal and laden with emotion,” that may present exceptions to the general
rule precluding emotional distress damages in contract actions). Todeschi’s minimal
briefing of the issue gives us no basis on which to conclude that the superior court erred.
See Hagen v. Strobel, 353 P.3d 799, 805 (Alaska 2015) (“[W]here a point is given only
a cursory statement in the argument portion of a brief, the point will not be considered
on appeal.” (alteration in original) (quoting Glover v. Ranney, 314 P.3d 535, 545 (Alaska
2013))).
