STATE OF HAWAII COMPENDIUM OF LAW 

Prepared by Dawn T. Sugihara and Thomas Benedict Goodsill Anderson Quinn & Stifel LLP  

1099 Alakea Street, Suite 1800  Honolulu, HI 96813  (808) 547‐5600 

www.goodsill.com  

PRE-SUIT AND INITIAL CONSIDERATIONS Pre-Suit Notice Requirements/Prerequisites to Suit

A) Against counties. The pre-suit notice requirement for actions against a county for damage to person or property received upon public places of the county or on account of any negligence of an employee of the county is governed by HAW. REV. STAT. §46-72. The person injured or the owner of the property damaged must give notice in writing of the injuries and the specific damages resulting within two years after the injuries accrued.

B) Medical Claims Conciliation Panel (“MCCP”). Before filing a suit for a medical tort, the claimant must submit the claim, in writing, to the MCCP. HAW. REV. STAT. § 671-12(a). Requirements for submission of the claim are found in HAW. REV. STAT. § 671, et seq. A panel composed of lawyers and doctors convenes, reviews the evidence presented by the parties and renders a decision. Following the decision of the panel, whether there is a finding of liability, or not, the claimant may institute litigation. HAW. REV. STAT. § 671-16. The filing of a claim with the MCCP tolls any applicable statute of limitations until 60 days after the date of the decision of the panel. A claimant may initiate litigation if a decision is not rendered by the MCCP within 12 months from the date of the initial filing. HAW. REV. STAT. § 671-18.

C) Design Claim Conciliation Panel (“DCCP”). Before instituting litigation, in tort, against a design professional licensed to practice under HAW. REV. STAT. § 464, a claimant must submit a claim to the DCCP. The DCCP reviews and renders findings and advisory opinions on the issues of liability and damages. HAW. REV. STAT. § 672B-1 et seq. Following the decision of the panel, whether there is a finding of liability, or not, the claimant may institute litigation. HAW. REV. STAT. § 672B-11. The filing of a claim with the DCCP tolls any applicable statute of limitations until 60 days after the date of the decision of the panel. A claimant may initiate litigation if a decision is not rendered by the DCCP within 12 months from the date of the initial filing. HAW. REV. STAT. § 672B-13(d)(2).

D) Other pre-suit notice requirements exist in certain situations: enjoin an auction (HAW. REV. STAT. § 445-32); environmental lawsuits (HAW. REV. STAT. §§ 128D-21, 195D-32, 342B-56).

Relationship to the Federal Rules of Civil Procedure

Hawaii has its own Rules of Civil Procedure, which are modeled after the Federal Rules of Civil Procedure. There are some differences between the Hawaii and Federal Rules.

Description of the Organization of the State Court System

A) Structure. The Hawaii court system consists of five courts: the Supreme Court, the Intermediate Appeals Court, the Circuit Court, the District Court and the Family Court.

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1) Supreme Court. The Supreme Court of Hawaii is composed of a Chief Justice and four Associate Justices who hear appeals. The Supreme Court has jurisdiction over matters that are brought before the Court upon applications for writs of certiorari to the Intermediate Court of Appeals. The Supreme Court also has jurisdiction over reserved questions of law from circuit and federal courts and complaints regarding elections. The Supreme Court is authorized to make rules of practice and procedure for all state courts; license, regulate and discipline attorneys; and discipline judges.

2) Intermediate Court of Appeals. The Intermediate Court of Appeals (“ICA”) is the court that hears nearly all appeals from trial courts and state agencies. The ICA is composed of six judges. Cases before the ICA are considered by panels of three judges.

3) Circuit Courts. Within the State of Hawaii, there are four separate circuits, the First Circuit (Oahu), the Second Circuit (Maui, Lanai and Molokai), the Third Circuit (Hawaii) and the Fifth Circuit (Kauai). The Circuit Courts have general jurisdiction in civil and criminal cases and have exclusive jurisdiction in probate, guardianship and criminal felony cases, as well as civil cases where the contested amount exceeds $25,000.00. The Circuit Courts share concurrent jurisdiction with District Courts in civil non-jury cases in which the amounts in controversy are between $10,000.00 and $25,000.00.

The Administrative Judge of the Circuit Court of the First Circuit First Circuit assigns all Land Court and Tax Appeal Court matters to judges in the First Circuit Court. Land Court has exclusive original jurisdiction over all applications of the registration of title to land easements or rights in land held and possessed in fee simple within the State. The Tax Appeal Court hears appeals regarding real property taxation directly from assessments or from the Boards of Review.

4) District Courts. Within each Circuit, there are a number of District Courts. The District Courts have exclusive jurisdiction over non-jury civil cases where the relief sought is under $10,000.00 and small claims cases where the amount claimed does not exceed $3,500.00. The District Courts also have exclusive jurisdiction, regardless of the amount of the claim, for traffic infractions; summary possession and ejectment proceedings. The District Courts may also exercise jurisdiction in non-jury, civil cases where the remedy sought is under $25,000.00, criminal cases where the offenses are punishable by fine or imprisonment which does not exceed one year; cases arise from violations of a county ordinance; and petitions for restraining orders.

5) Family Court. Each Circuit has its own Family Court. Family Court has jurisdiction to hears legal matters involving domestic relations, domestic violence, civil commitment cases, guardianship of adults, adult abuse cases, and legal matters involving children.

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B) Selection of Judges. In Hawaii, judges of the Supreme Court, ICA and Circuit Courts are appointed by the Governor, with the consent of the senate. The Governor appoints a person from a list of nominees presented to the Governor by the judicial selection commission. The Judicial Selection Commission reviews and evaluates applications for all Hawaii judicial vacancies and votes by secret ballot to select qualified nominees. Judges appointed by the Governor are appointed for ten-year terms. District Court and Family Court judges are nominated by the Chief Justice of the Supreme Court for six-year terms. All judicial nominations are subject to confirmation by the State Senate.

C) Alternative Dispute Resolution. Hawaii does not have a comprehensive statewide statute mandating methods of Alternative Dispute Resolution (ADR). HAW. REV. STAT. §613-2 established the Center for Alternative Dispute Resolution to facilitate the effective, timely and lower-priced resolution of disputes, but its programs are strictly voluntary.

1) Arbitration. All civil actions in tort having a probable jury award value of $150,000.00 or less are subject to a mandatory, non-binding arbitration program called the Court Annexed Arbitration Program (“CAAP”). CAAP is governed by HAW. REV. STAT. §601-20 and the Hawaii Arbitration Rules. All matters assigned to CAAP can be removed at the discretion of the court. Any other civil case, regardless of the amount in controversy, may be submitted to CAAP upon the agreement of all parties and the approval of the Arbitration Judge. Parties to cases submitted or ordered to CAAP may agree at any time to be bound by any arbitration ruling or award.

The Revised Uniform Arbitration Act (RUAA), HAW. REV. STAT. 658A-1 et seq., governs voluntary agreements to arbitrate by parties involved in a litigation. In an attempt to clarify the Federal Arbitration Act, which is largely silent on arbitration procedures, the RUAA specifies procedures in detail. In particular, discovery is fully permitted at the discretion of the arbitrator, unless prohibited by the parties in their arbitration agreement. Moreover, the RUAA expressly allows for summary judgments, punitive damages, and attorneys fees to be rendered by an arbitrator. Although arbitration awards are binding, a party can move, under limited circumstances, for the court to vacate the award. See HAW. REV. STAT. § 658A-23.

2) Mediation. Under HAW. REV. STAT. §91-8.5, an agency may encourage parties of a contested case to participate in mediation prior to a hearing, and may suspend all further proceedings in the contested case pending the outcome of the mediation. Unless otherwise extended by the agency, no mediation period shall exceed thirty days from the date the case is referred to mediation. All costs of the mediation are borne equally by the parties unless otherwise agreed, ordered by the agency, or provided by law, and any mediation statements or settlement offers may not be admitted into any subsequent proceedings involving the case.

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Service of Summons

A) Person. Service of summons is governed by the HAW. R. CIV. P. 4(d)(1). Service upon a person includes delivering a copy of the summons and compliant by (1) personal service; (2) substituted service, which is leaving a copy of the summons and the complaint at the individual’s dwelling with a person of suitable age and discretion; or (3) delivering a copy of the summons and the complaint to an agent authorized by appointment or law.

B) Infant or incompetent person. Service of Summons upon an infant or an incompetent person is governed by HAW. R. CIV. P. 4(d)(2). Service upon an infant includes delivering a copy of the summons and complaint personally (1) to the guardian of the infant’s property or if no guardian exists or service cannot be made to the guardian then as directed by court order, and (2) to the infant, if the infant is 16 years old or older. Service upon an incompetent person includes delivering a copy of the summons and complaint (1) to the guardian of the incompetent person’s property, or if the incompetent person is in an institution to the director of chief executive officer of the institution, or if service cannot be made to either than as directed by the court, and (2) to the incompetent person unless the court directs otherwise.

C) Corporation. Service of summons upon corporation, partnership or other unincorporated association is made by “delivering a copy of the summons and the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” HAW. R. CIV. P. 4(d)(3).

D) State. Service of Summons upon the State is made by delivering a copy of the summons and the complaint to the attorney general of the State, the assistant attorney general, or any deputy attorney general who has been appointed by the attorney general. HAW. R. CIV. P. 4(d)(4).

E) State officer or agency. Service of Summons upon an officer or agency of the State is made “by serving the State and by delivering a copy of the summons and the complaint to the officer or agency.” HAW. R. CIV. P. 4(d)(5). If the agency is a corporation, the copies to the corporation should be delivered as provided under paragraph (C) above.

F) County. Service of Summons upon a county is effectuated by “delivering a copy of the summons and the complaint to the corporation counsel or county attorney or any of his or her deputies,” or as provided by statute or county charter. HAW. R. CIV. P. 4(d)(6).

G) County officer or agency. Service of Summons upon a an officer or agency of a county is made “by serving the county and by delivering a copy of the summons and the complaint to such officer or agency.” HAW. R. CIV. P. 4(d)(7). If the agency is a corporation, the copies to the corporation should be delivered as provided under paragraph (C) above.

H) Nonresidents. “Whenever a statute or an order of court provides for service of a summons upon a party not an inhabitant of or found within the State, service shall be made under the circumstances prescribed in the statute or order” pursuant to HAW. R.

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CIV. P. 4(e). “All process may be served anywhere within the State and, when a statute or order so provides, beyond the limits of the State” under HAW. R. CIV. P. 4(f).

I) Pursuant to Hawaii’s long-arm statute, HAW. REV. STAT. § 634-35, a person or entity submits to jurisdiction in Hawaii if she (1) transacts business within the State; (2) commits a tortious act within the State; (3) owns, uses or possesses real estate situated in the State; or (4) contracts to insure a person, property or risk located within the State at the time of contracting. Id.

J) There are no statutory provisions in the Hawaii Rules of Civil Procedure or in the Hawaii Revised Statutes regarding the ability of a plaintiff to notify a defendant of an action and request that the defendant waive service of summons. However, Hawaii common law establishes that any objection by a defendant for lack of notice due to a failure to properly serve a summons is deemed waived by a defendant’s appearance in court. See, e.g., In re Guardianship of Carlsmith, 113 Haw. 211, 225, 151 P.3d 692, 706 (2006).

Statutes of Limitations

A) Debts. The statute of limitations for actions to recover a debt based on any contract, obligation, or liability must be commenced within six years after the cause of action accrued. HAW. REV. STAT. § 657-1(1).

B) Foreign debts. The statute of limitations for actions to recover debt based on a contract, obligation or liability, which has arisen in any foreign jurisdiction, except those to enforce a judgment of a court, must be commenced within four years after the cause of action accrued. HAW. REV. STAT. § 657-6.

C) Debts based on a minor’s medical care. The statute of limitations to recover a debt based on a contract, obligation, or liability made pursuant to HAW. REV. STAT. § 577A-5 (relating to legal capacity of a minor regarding medical care) shall not commence until the minor reaches the age of majority, and then must commence within two years.

D) Foreign judgments. Actions for judgments or decrees rendered in any court not of record in the State, or, subject to HAW. REV. STAT. § 657-9, in any court of record in a foreign jurisdiction, must be commenced within six years after the cause of action accrued. HAW. REV. STAT. § 657-1(2).

E) Taking of goods. Actions for the taking or detaining of goods or chattels, including actions in replevin must be commenced within six years after the cause of action accrued. HAW. REV. STAT. § 657-1(3).

F) Actions not covered by other laws. Actions for personal actions of any nature not specifically covered by Hawaii laws must be commenced within six years after the cause of action accrued. HAW. REV. STAT. § 657-1(4). However, where a federal statute provides for damages or equitable relief, but does not specify the period within which the suit may be brought, actions brought in state court must be commenced within two years from the date the cause of action arises. HAW. REV. STAT. § 657-11.

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G) Libel and slander. Actions for libel and slander must be commenced within two years after the cause of action accrued. HAW. REV. STAT. § 657-4.

H) Persons or property. Actions for injury to persons or property must be commenced within two years after the cause of action accrued. HAW. REV. STAT. § 657-7.

I) Medical malpractice. Actions brought against persons in the medical profession based on their professional negligence, for rendering professional services without consent, or for error or omission in such person’s practice must be commenced within two years after the plaintiff discovers, or with reasonable diligence should have discovered, the injury. HAW. REV. STAT. § 657-7.3. Actions for medical tort by a minor must be commenced within six years from the date of the alleged wrongful act except the actions by a minor under the age of ten years must be commenced within six years or by the minor’s tenth birthday, whichever provides a longer period. This time limitation will be tolled for any period during which the minor’s parent, guardian, insurer, or health care provider has committed fraud or gross negligence or has been a party to a collusion in the failure to bring an action on behalf of the injured minor for a medical tort. This time limitation will also be tolled for any period during which the minor’s injury or illness alleged to have arisen from the alleged wrongful act or omission could not have been discovered through the use of reasonable diligence.

J) Construction. Actions to recover damages for injuries to property or for bodily injury or wrongful death arising out of any deficiency or neglect in the planning, design, construction, supervision and administration of construction, and observation of construction relating to an improvement to real property must be commenced within two years after the cause of action accrued. HAW. REV. STAT. § 657-8. However, this statute of limitations does not apply to actions for damages against owners or other persons having an interest in the real property or improvement based on their negligent conduct in the repair or maintenance of the improvement or to actions for damages against surveyors for their own errors in boundary surveys.

K) Ejection. Actions to recover possession of any lands or make any entry thereon must be commenced within twenty years after the right to bring the action first accrued. HAW. REV. STAT. § 657-31.

L) Tolling for infancy, insanity or imprisonment. The tolling of the statute of limitations due to infancy, insanity, or imprisonment is governed by HAW. REV. STAT. § 657-13. If at the time the cause of action accrued a person is within the age of eighteen years, insane, or imprisoned on a criminal charge, such person can bring the action within the respective statute of limitations after the disability is removed or at any time while the disability exists.

M) Tolling for disability. The tolling of the statute of limitations due to disability is governed by HAW. REV. STAT. § 657-15. The time limitations will not attach until all disabilities that existed at the time the right of action accrued are removed.

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N) Extensions. Extensions of statutes of limitations for personal actions are governed by HAW. REV. STAT. §§ 657-18 – 657-23.

1) Person out of state. Pursuant to HAW. REV. STAT. § 657-18, if at any time when a cause of action accrues against a person, the person is out of the State, the action may be commenced within the terms respectively limited after the return of the person into the State. Further, if, after the cause of action has accrued, the person departs from and resides out of the State, the time of the person’s absence will not be taken as part of the limitations period.

2) Injunction. Pursuant to HAW. REV. STAT. § 657-19, whenever the commencement of an action is stayed by an injunction of any court, the time during which the injunction is in force will not be taken as part of the limitations period.

3) Fraudulent concealment. Pursuant to HAW. REV. STAT. § 657-20, if any person fraudulently conceals the existence of a cause of action or the identity of a person who is liable for the claim from the knowledge of the person entitled to bring the action, the action may be commenced at any time within six years after the person who is entitled to bring the action discovers or should have discovered the existence of the cause of action or the identity of the person who is liable for the claim.

4) Crime victims. Pursuant to HAW. REV. STAT. § 657-21.5, the statute of limitations for any civil cause of action against a person convicted of a particular crime will be tolled from the moment the civil cause of action arises until the person convicted of that crime is released from imprisonment, released from parole, or released from probation and is no longer under the jurisdiction of the court for that crime if: (1) the crime upon which the civil action is based is a felony; or (2) the victim of the crime upon which the civil action is based is the victim of a “sexually violent offense” or a “criminal offense against a victim who is a minor.”

5) Unintended service of proces. Pursuant to HAW. REV. STAT. § 657-22, upon any such matter being established, or upon its appearance in any other way that process was issued without the intent that it should be served, the process will not be deemed the commencement of an action.

6) Restitution. Pursuant to HAW. REV. STAT. § 657-23, if at any time when a cause of action for recovery of restitution or compensation for damage or injury to a victim of a crime exists, a criminal action is pending which arises out of the same occurrence, the time during which the criminal action is pending will not be taken as part of the statute of limitations for commencement of the civil action.

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Statutes of Repose

A) Domestic judgments. The statute of repose applicable to domestic judgments and decrees is governed by HAW. REV. STAT. § 657-5. Unless an extension is sought within ten years of date of the original judgment or decree and is granted by the court, every domestic judgment and decree is presumed to be paid and discharged at the expiration of ten years after it was rendered. A court will not extend any judgment or decree beyond twenty years from the date of the original judgment or decree.

B) Child support. The statute of repose applicable to judgments for child support is governed by HAW. REV. STAT. § 657-5.5. Every judgment for child support is presumed to be paid and discharged on the thirty-third birthday of the child or by the expiration of the latest period provided in HAW. REV. STAT. § 657-5, whichever date is later.

C) Medical torts. The statute of repose applicable to medical torts is governed by HAW. REV. STAT. § 657-7.3. Actions may not be brought more than six years after the date of the alleged act or omission causing injury or death, but this six-year time limitation will be tolled for any period during which the person has failed to disclose any act, error, or omission upon which the action is based and which is known to the person.

D) Construction. The statute of repose applicable to damages based on construction to improve real property is governed by HAW. REV. STAT. § 657-8. Actions may not be brought more than ten years after the date of the completion of the improvement.

Venue Rules

A) Venue particulars. Venue is governed by HAW. REV. STAT. § 603-36. Actions for penalties and forfeitures should be brought in the circuit court where the alleged penalty or forfeiture was incurred. Actions for ejectment, trespass, to quiet title, or to partition real property may be brought in any circuit in which any part of the property is situated. Proceedings concerning trusts and the estates of decedents, missing person, protected person, minors, and incapacitated person should be brought pursuant to HAW. REV. STAT. § 560-1 et seq. Applications for writs directed to courts of inferior jurisdiction or writs of quo warranto should be brought in the circuit court where the alleged occasion for relief arises, unless it is needed in a proceeding that has already begun and in that case it can be brought before the circuit court in which the proceeding is currently being held. Unless otherwise expressly provided by statute, actions should be brought in the circuit where the claim for relief arose or where the defendant is domiciled. If there is more than one defendant, the action should be brought in the circuit in which the claim for relief arose, but if a majority of the defendants are domiciled in another circuit, the action may be brought there.

B) Change of venue. Change of venue is governed by HAW. REV. STAT. § 603-37. After the parties have had an opportunity to be heard, a circuit court may, upon satisfactory proof that a fair and impartial trial cannot be hand in any civil case pending in the court or upon satisfactory proof that it would be more fair and equitable to the parties if any civil case pending in the court were heard in another jurisdiction, change the venue to

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some other circuit. In the alternative, a civil court may, in its discretion and upon consent of all the parties to any civil case pending in the court, change the venue to some other circuit court.

C) Transfer. If a civil case has been brought in the wrong circuit, the circuit court shall transfer the case to any circuit in which it could have been brought, or if it is in the interest of justice, dismiss the case. HAW. REV. STAT. § 603-37.5.

D) Forum non conveniens. The doctrine of forum non conveniens is recognized by Hawaii common law. Generally, deference is given to the plaintiff’s choice of forum, but if the court determines that under a balancing test of private and public interest factors (see below) that the balance is strongly in favor of the defendant, the court may grant the defendant’s motion to transfer venue pursuant to forum non conveniens. Lesser v. Boughey, 88 Haw. 260, 263, 965 P.2d 802, 805 (1998). Hawaii generally follows the public and private factors identified in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).

NEGLIGENCE

Comparative Fault / Contributory Negligence

A) Modified comparative negligence. Hawaii follows a modified comparative negligence system in which the court compares the relative fault of the parties when determining damages. A plaintiff will be barred from recovery if he or she is found to be more than fifty percent at fault, regardless of any defendant’s negligence. The recovery of a plaintiff who is found to be fifty percent or less at fault will be reduced in proportion to his or her degree of fault. HAW. REV. STAT. § 663-31 (2008).

B) Strict liability. Comparative negligence is applicable in strict liability cases. HAW. REV. STAT. § 663-31(a).

C) Assumption of the risk. Primary assumption of risk is a discrete defense separate from comparative negligence, but secondary implied assumption of risk is a form of comparative negligence to be measured against a defendant’s fault. See Foronda ex rel. Est. of Foronda v. Hawaii Int’l Boxing Club, 96 Haw. 51, 66, 25 P.3d 826, 841 (Haw. Ct. App. 2001).

D) Last clear chance. Hawaii’s adoption of a comparative negligence statute necessarily abolished the common law doctrine of “last clear chance.” Rapoza v. Parnell, 83 Haw. 78, 83, 924 P.2d 572, 577 (Haw. Ct. App. 1996).

Exclusive Remedy—Worker’s Compensation Protections

Hawaii workers’ compensation protections are governed by HAW. REV. STAT. § 386-1 to 214. (2008), also known as the Hawaii Workers’ Compensation Law (“HWCL”). This law was enacted to provide “assured, certain and prompt compensation” to employees who suffer an injury “arising out of and in the course of employment” and to protect employers from

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“vexatious, delaying and uncertain litigation.” Iddings v. Mee-Lee, 82 Haw. 1, 7-8, 919 P.2d 263, 269 - 270 (1996) (citing Est. of Coates v. Pac. Engineering, A Division of Pac. Living Co., 71 Haw. 358, 364, 791 P.2d 1257, 1260-61 (1990)).

A) Employer-employee relationship. An employer-employee relationship is a prerequisite under the HWCL. To qualify, the relationship must be entered into deliberately, with the informed consent of both parties. See, e.g., Potter v. Hawaii Newspaper Agency, 89 Haw. 411, 974 P.2d 51 (1999) (citing Harter v. County of Hawaii, 63 Haw. 374, 378, 628 P.2d 629, 632 (1981)).

B) Arising out of or in the course of employment. In determining whether an injury “arises out of and in the course of” employment, Hawaii courts employ a “unitary test” which looks at whether a sufficient work connection exists. This test requires a “causal connection between the injury and any incidents or conditions of employment.” See, e.g., Davenport v. City and County of Honolulu, 100 Haw. 481, 60 P.3d 882 (2002).

1) An injury arises out of and in the course of employment when it takes place: (1) within the period of employment; (2) at a place where the employee reasonably may be; and (3) while the employee is fulfilling his or her duties or something incidental to those duties. Davenport, 100 Haw. at 490, 60 P.3d 891 (citing Tate v. GTE Hawaiian Telephone Co., 77 Haw. 100, 103-4, 881 P.2d 1246 (1994)).

2) The determination of whether an activity is “incidental to work” looks at whether the activity is “usual and reasonable, both as to the needs to be satisfied and the means used to satisfy them.” Therefore, any activity necessary for the employee to complete his or her “ultimate” work would be compensable. Id.

C) Going and coming rule. Subject to certain exceptions, injuries suffered by employees while going to or coming from work generally are not covered by the HWCL (“going and coming rule”). Smith v. State, Dept. of Labor and Indus. Relations, 80 Haw. 150, 154-56, 907 P.2d 101, 105-07 (1995), reconsideration denied, 80 Haw. 187, 907 P.2d 773 (1995).

1) Premises rule. The “premises” rule is an exception to the general “going and coming” rule and provides that injuries suffered by employees while going to or from work are considered to arise out of and in the course of employment if the injury: (1) occurs on the employer’s premises and (2) the employee’s presence on the premises was required by the nature of his or her employment. Smith, 80 Haw. at 154-56, 907 P.2d at 105-07

2) Premises exception. An injury suffered off-premises may qualify under the “premises” exception when an employee is traveling on a “direct and/or necessary” route between the employer’s main premises and a parking lot owned, controlled, or maintained by the employer. Id.

D) Rebuttable presumptions. Unless rebutted by “substantial evidence,” the HWCL creates the following presumptions with respect to claims for compensation: (1) that the claim is for a covered work injury; (2) that sufficient notice of such injury has been

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given; (3) that the injury was not caused by the intoxication of the injured employee; and (4) that the injury was not caused by the willful intention of the injured employee to injure oneself or another. HAW. REV. STAT. § 386-85.

E) Rebutting presumptions. To rebut an employee’s HWCL claim that an accident is work-related, an employer must provide substantial evidence that the injury is unrelated to employment. HAW. REV. STAT. § 386-85 (2008); see, e.g., Kawakami v. City and County of Honolulu Bd. of Water Supply, 100 Haw. 285, 288, 59 P.3d 920, 923 (2002).

1) “Substantial evidence.” The term “substantial evidence” signifies a high quantum of evidence which at minimum must be relevant and credible and of a quality and quantity sufficient to justify a reasonable person’s conclusion that an injury or death is not related to work. Miyamoto v. Wahiawa Gen. Hosp., 101 Haw. 293, 310, 67 P.3d 792, 809 (Haw. Ct. App. 2003).

2) Presumption. The HWCL creates a presumption of compensability and the employer bears the burden of proof. Tate v. GTE Hawaiian Telephone Co., 77 Haw. 100, 107, 881 P.2d 1246, 1253 (1994). If reasonable doubt as to whether an injury is work-related exists, the doubt must be resolved in favor of the claimant. Miyamoto, 101 Haw. at 310, 67 P.3d at 809.

F) Exclusivity. The HWCL was intended to be an exclusive avenue for compensation. Remedies under the Act exclude all other liability—“common law or otherwise”—of the employer to the employee, the employee’s legal representative, spouse, dependents, next of kin, or anyone else entitled to recover damages from the employer on account of the injury. HAW. REV. STAT. § 386-5.

1) Explicit exceptions. An explicit exception to the exclusive remedy of the HWCL is made only for claims of sexual harassment or sexual assault, and infliction of emotional distress or invasion of privacy related to those claims. HAW. REV. STAT. § 386-5.

2) Employment discrimination exceptions. Hawaii courts have recently begun to carve out a narrow exception for the intentional tort of employment discrimination, but this is an evolving area of state law. Furukawa v. Honolulu Zoological Society, 85 Haw. 7, 16-19, 936 P.2d 643, 654-55 (1997); Takaki v. Allied Machinery Corp., 87 Haw. 57, 67-68, 951 P.2d 507, 517-18 (Haw. Ct. App. 1997).

G) Co-worker immunity. Co-workers are immune from suit brought by an employee to recover for a workplace injury, unless the conduct was “willful and wanton.” See HAW. REV. STAT. § 386-8. “Willful and wanton misconduct” includes both reckless conduct that lacks specific intent to cause injury and intentional conduct motivated by specific intent to cause injury. Iddings v. Mee-Lee, 82 Haw. 1, 12, 919 P.2d 263, 274 (1996).

H) Respondeat superior. Under the theory of respondeat superior, an employer may be liable for injuries caused by the negligent acts of its employees or its agents, occurring

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within the scope of their employment. Wong-Leong v. Hawaiian Independent Refinery, Inc., 76 Haw. 433, 438, 879 P.2d 538, 543 (1994).

1) Standard for “scope.” Whether an employee is acting within the scope of his or her employment is a question of fact. The conduct of an employee is deemed within the scope of his or her employment if: (1) it is of the kind for which he or she is employed to perform; (2) it occurs substantially within “the authorized time and space limits”; and (3) it is actuated at least in part by a purpose to serve the employer. State v. Hoshijo ex rel. White, 102 Haw. 307, 319-20, 76 P.3d 550, 562-63 (2003) (citing Wong-Leong, 76 Haw. at 438, 879 P.2d at 543).

An employer may be liable for intentional torts committed by its employees because the law imposes liability where the employee’s purpose was either wholly or in part the furtherance of the employer’s business, however misguided. Hoshijo, 102 Haw. at 319 n.27, 76 P.3d at 562 n.27.

Indemnification

With some variations, Hawaii adopts and follows the Uniform Contribution Among Tortfeasors Act (“UCATA”). HAW. REV. STAT. §§ 663-11 to -17.

A) The UCATA allows recovery of either indemnity or contribution, not both. See American Broadcasting Companies, Inc. v. Kenai Air of Hawaii, Inc., 67 Haw. 219, 230, 686 P.2d 1, 8 (1984).

B) Applicability. An action for indemnity may commence under three circumstances:

1) Third-party. A defendant may bring in a person not party to the original action as a third-party defendant if the person is or may be liable to the defendant or the plaintiff in the case. HAW. REV. STAT. § 663-17(a).

2) Cross claim. A defendant may file a cross-claim for indemnity against a codefendant for all or part of a claim in the original action. HAW. REV. STAT. § 663-17(b)(1).

3) Motion. A defendant may “move for judgment for contribution against any other joint tortfeasor” where the defendant has paid the judgment in full or has paid more than his or her pro rata share. HAW. REV. STAT. § 663-17(b)(2).

C) For an indemnity cause of action to be valid, an indemnity contract or an independent duty to indemnify must exist. See Hirasa v. Burtner, 68 Haw. 22, 24, 702 P.2d 772, 774 (1985).

D) Express indemnity. Contracts of indemnity are strictly construed, particularly where the party claiming indemnity asserts the right to be protected against its own negligence. See Straub Clinic and Hosp., Inc. v. Chicago Ins. Co., 4 Haw. App. 268, 273, 665 P.2d 176, 179-80 (Haw. App. 1983). If an indemnitor is contractually obligated to indemnify

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against its own negligence, it is obligated to indemnify for both its sole and concurrent negligence unless the indemnity contract “clearly and unequivocally” specifies otherwise. Straub Clinic and Hosp., Inc., 4 Haw. App. at 273, 665 P.2d 179 - 180.

E) Good faith. All settlements of indemnification claims must be reasonable and made in good faith, even if there is a legal right to settle the claim. See Hawaiian Ins. & Guar. Co., Ltd. v. Higashi, 67 Haw. 12, 13, 675 P.2d 767, 769 (1984).

1) Burden of proof. Hawaii courts have held that where an indemnitee settles a case via express powers within an indemnity agreement that does not require the establishment of liability or notice to indemnitors, and the agreement was silent as to which party had burden of proof on those issues, the indemnitee has the burden of proving those matters by a preponderance of evidence. Higashi, 67 Haw. at 14, 675 P.2d at 770.

2) Totality of the circumstances. The trial court has discretion in determining whether a settlement is in good faith, and it is responsible for weighing the totality of the circumstances surrounding the settlement. If appealed, the trial court’s decision will be reviewed for abuse of discretion. See, e.g., Brooks v. Dana Nance & Co., 113 Haw. 406, 412, 153 P.3d 1091, 1097 (2007).

Joint and Several Liability

A) In Hawaii, joint and several liability is governed by HAW. REV. STAT. § 663-10.9. Under this section, joint and several liability is abolished except in the following circumstances: (1) recovery of economic damages against joint tortfeasors in actions involving injury or death to persons; and (2) recovery of economic or noneconomic damages against joint tortfeasors in claims involving: intentional torts; torts relating to environmental pollution; toxic and asbestos-related torts; torts relating to aircraft accidents; strict and products liability torts; or some torts relating to motor vehicle accidents. HAW. REV. STAT. § 663-10.9(1)-(2).

1) “Joint torfeasors” definition. “Joint tortfeasors” are two or more persons jointly or severally liable in tort for the same injury to a person or property, regardless of whether judgment has been recovered against all or some of them. HAW. REV. STAT. § 663-11. A tortfeasor cannot be jointly and/or severally liable with another unless the injured person can sue and recover from both. Troyer v. Adams, 102 Haw. 399, 402 n.1, 77 P.3d 83, 86 n.1 (2003).

B) Modified comparative negligence. Where a joint tortfeasor’s individual degree of negligence is adjudged to be less than twenty-five percent, the amount recoverable against that tortfeasor for noneconomic damages will be in direct proportion to his or her degree of fault. HAW. REV. STAT. § 663-10.9(3).

C) UCATA. Contribution claims in Hawaii are governed by the Uniform Contribution Among Tortfeasors Act (“UCATA”). HAW. REV. STAT. §§ 663-11 to -17. Hawaii is one

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of seven states that retains the substance of the original UCATA. RESTATEMENT (THIRD) OF TORTS § 23 Reporter’s Note, cmt. a (West 2000).

1) Purpose. The purpose of the UCATA is to avoid the injustice of having one joint tortfeasor pay more than his fair share of damages to an injured claimant. See, e.g., Campo v. Taboada, 68 Haw. 505, 507, 720 P.2d 181, 183 (1986).

2) No comparative negligence. In an action for contribution between joint tortfeasors, comparative negligence does not apply. See Liberty Mut. Ins. Co. v. Gen. Motors Corp., 65 Haw. 428, 429, 653 P.2d 96, 96 (1982).

3) Cross-claims. Joint tortfeasors must file cross-claims to invoke rights to contribution. See Gump v. Wal-Mart Stores, Inc., 93 Haw. 417, 422, 5 P.3d 407, 412 (2000).

D) Contribution. The right of contribution exists among joint tortfeasors in Hawaii. HAW. REV. STAT. § 663-12. Where two or more persons are subject to liability in tort arising out of the same injury to person or property, a defendant has a right of contribution when he or she has paid more than his or her percentage share of the common liability. HAW. REV. STAT. § 663-12.

E) Settlement. Where a joint tortfeasor reaches a settlement agreement with an injured claimant, he or she is not entitled to recover contribution from another joint tortfeasor whose liability to the injured claimant is not extinguished by the settlement. HAW. REV. STAT. § 663-12.

F) Disproportionate fault. In situations in which there is disproportionate fault among joint tortfeasors and equal distribution of the common liability by contribution would be inequitable, the relative degrees of fault of the joint tortfeasors will be considered in order to determine each tortfeasor’s pro rata share. HAW. REV. STAT. § 663-12.

1) Non-parties. Non-parties may be considered joint tortfeasors under the UCATA and may be included on a special verdict form if the trial court deems appropriate. See Gump v. Wal-Mart Stores, Inc., 93 Haw. 417, 422, 5 P.3d 407, 412 (2000).

2) Fairness. In cases in which equal contribution among joint tortfeasors would be unfair, the UCATA allows the most culpable party to sustain a share of the loss that is commensurate with his degree of fault. Mitchell v. Branch, 45 Haw. 128, 141-42, 363 P.2d 969, 978 (1961).

G) Recovering a judgment against one joint tortfeasor does not release other joint tortfeasors from liability to an injured claimant. HAW. REV. STAT. § 663-13.

H) Consequences of settlement. Absent an express written agreement apportioning liability, a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce a judgment given in good faith given to one or more joint tortfeasors will not discharge any other joint tortfeasor from liability unless specified within the terms of the

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decision. HAW. REV. STAT. § 663-15.5(a)(1). Such action will reduce the claims against the other joint tortfeasors by either the amount stipulated by the action or by the amount of the consideration paid for it, whichever is greater. HAW. REV. STAT. § 663-15.5(a)(2). A release, dismissal, or covenant will also free the party to whom it is given from all liability for any contribution to any other joint tortfeasors. HAW. REV. STAT. § 663-15.5(a)(3).

I) Totality of the circumstances. When evaluating whether a settlement was made in good faith for the purposes of release under HAW. REV. STAT. § 663-15.5, Hawaii adopts a “totality of the circumstances” approach. This approach requires that several factors, including the realistic approximation of total damages sought by a plaintiff, the relative degree of fault of the settling tortfeasors, and any evidence that the settlement is intended to injure the interests of a non-settling joint tortfeasor, be weighed. Troyer v. Adams, 102 Haw. 399, 425-27, 77 P.3d 83, 109-11 (2003). Settlement agreements are deemed not in good faith where a party attempts to accomplish indirectly that which is expressly barred from accomplishing directly. Brooks v. Dana Nance & Co., 113 Haw. 406, 417, 153 P.3d 1091, 1102 (2007).

1) A settlement determined by the court to be made in good faith will bar any other joint tortfeasor from any further claims against the settling tortfeasor, except those based on a written indemnity agreement. HAW. REV. STAT. § 663-15.5(d)(1).

2) A settlement deemed by the court to be made in good faith will also result in the dismissal of all cross-claims filed against the settling joint tortfeasor, except those based on a written indemnity agreement. HAW. REV. STAT. § 663-15.5(d)(2).

3) Burden. A court determination on the issue of good faith of a settlement agreement may be appealed. Id. § 663-15.5(e). In Hawaii, the burden of proving that a settlement agreement lacks good faith rests with the challenging party. HAW. REV. STAT. § 663-15.5(b).

J) Hawaii’s adoption of the UCATA does not abrogate any right of indemnity that exists under current law. HAW. REV. STAT. § 663-16.

Strict Liability

A) Hawaii courts recognize strict liability for:

1) Unreasonably dangerous products; and

2) Ultrahazardous activities. Courts determine which activities qualify as ultrahazardous for the purpose of imposing strict liability. In order to prevail on an ultrahazardous activity claim, however, a plaintiff must establish proximate cause. Akee v. Dow Chemical Co., 293 F.Supp.2d 1140, 1143 (D. Haw. 2002).

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B) Prima facie case. To establish a prima facie claim for strict products liability, the plaintiff has the burden “to prove (1) a defect in the product which rendered it unreasonably dangerous for its intended or reasonably foreseeable use; and (2) a causal connection between the defect and [the] plaintiff's injuries.” Tabieros v. Clark Equipment Co., 85 Haw. 336, 354, 944 P.2d 1279, 1297 (1997).

1) Proof. Proof of defect and causation may be provided by expert testimony or by circumstantial evidence. Wagatsuma v. Patch, 10 Haw.App. 547, 566, 879 P.2d 572, 584 (1994).

2) Tests. A plaintiff may establish a defect for purposes of either strict liability or negligence under three approaches: (1) the “consumer expectation” test; (2) the “risk-utility” test; and (3) the “latent danger” test. Tabieros, 85 Haw. at 367, 994 P.2d at 1310.

C) Learned intermediary. Hawaii follows the learned intermediary doctrine. A manufacturer or distributor of a medical device or prescription drug has no duty to directly warn consumers of any inherent risk in the product. Manufacturers or distributors are permitted to rely on the prescribing physician to pass any warnings onto patients, the ultimate users of the products. See Craft v. Peebles, 78 Haw. 287, 304 - 6, 893 P.2d 138, 155-56 (1995); see also HAW. CIV. JURY INSTR. § 11.10 (1999).

D) Punitive damages. Punitive damages may be awarded in a products liability action based on the underlying theory of strict liability where the plaintiff proves the requisite aggravating conduct on the part of the defendant. Masaki v. Gen. Motors Corp., 71 Haw. 1, 11, 780 P.2d 566, 573 (1989).

DISCOVERY

Electronic Discovery Rules

Hawaii has not amended its rules of civil procedure to specifically address electronic discovery. Like all other discoverable material, electronic data is governed by the general discovery provisions. Under HAW. R. CIV. P. 34, discoverable material includes “electronic recordings, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably useable form.” Expert Witnesses

A) Under HAW. R. CIV. P. 26(b)(5), a party may depose any identified expert who is expected to present their opinions at trial. For non-testifying or consultant experts, a party can obtain discovery regarding their opinions or facts known to them only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions by other means.

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B) Pretrial statements. Expert witnesses must be identified in each party’s pretrial statement, which is to filed within eight months following the filing of the complaint. HAW. R. CIR. CTS. 12(b)(5).

C) Fees. The party seeking discovery from an identified expert must pay the expert a reasonable fee for time spent in responding to the discovery unless “manifest injustice would result.” HAW. R. CIV. P. 26(b)(5)(C). With respect to depositions of non-testifying experts, the party seeking discovery must pay the other party a fair portion of the fees and expenses reasonably incurred to obtain facts/opinions from the expert. Id.

D) Disclosure of rebuttal experts. The time for identifying rebuttal expert witnesses is not specifically addressed in Hawaii’s Rules of Civil Procedure. However, the general practice is for the court to set the time for disclosure of rebuttal experts 30 days after initial disclosure of expert witnesses.

Non-Party Discovery

A) Subpoenas. Under HAW. R. CIV. P. 45, subpoenas for the attendance of non-party witnesses at trial or at a deposition or the production of documents from non-parties are issued by the clerk of the circuit court of the circuit in which the action is pending. Within 10 days of receipt, the non-party may move to quash or modify the subpoena if it is unreasonable and oppressive. The court can also order the party issuing the subpoena to advance the costs of producing the requested material.

a. Service. A subpoena may be served at any place within the State of Hawaii by any person who is not a party and is not less than 18 years of age. HAW. R. CIV. P. 45(c). Service of a subpoena for the attendance of a non-party witness at trial or at a deposition should be made by delivering a copy to the person and by tendering to such person the fees for one day’s attendance and mileage. Id.

b. Responses. Documents produced in response to a subpoena must be produced as they are kept in the usual course of business or must be organized and labeled to correspond with the categories in the demand. HAW. R. CIV. P. 45(e). If privileged documents are withheld, the claim of privilege must be expressly made and supported by a description of the nature of the information or documents withheld. Failure to obey a subpoena may be deemed contempt of court. HAW. R. CIV. P. 45(f).

Privileges

A party withholding otherwise discoverable information on the basis of privilege must expressly make the claim of privilege and describe the nature of the documents, communications, or things not produced so that the other parties can assess the applicability of the claimed privilege. HAW. R. CIV. P. 26(b)(6).

Hawaii recognizes the following privileges:

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A) Attorney-client privilege. Codified at HAW. R. EVID. 503(b), the attorney-client privilege provides that a client “has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.”

To invoke the privilege, the party asserting it must establish:

(1) legal advice was sought; (2) from a professional legal adviser; (3) the communications related to that purpose; (4) the communication was made in confidence; and (5) the protection has not been waived.

Sapp v. Wong, 62 Haw. 34, 38, 609 P.2d 137, 140 (1980).

1) Who may claim. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization. Haw. R. Evid. 503(c). The lawyer must claim the privilege on behalf of the client unless expressly released by the client. Id.

Crime-fraud exception. Hawaii also recognizes the crime-fraud exception to the attorney-client privilege. Under Haw. R. Evid. 503(d)(1), no privilege exists if the legal advice was sought to aid in the commission of a crime or fraud. Similarly, under Haw. R. Evid. 503(d)(2), no privilege exists for communications reflecting the client’s intent to commit a crime or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another.

B) Work product doctrine. A limited privilege for work product materials is recognized under HAW. R. CIV. P. 26(b)(4). A party can obtain work product materials upon a showing of “substantial need” of the materials and that the party is unable without “undue hardship” to obtain the information by other means. Id. In ordering discovery of such materials, the court shall “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Id.

C) Other privileged communications include:

1) Physician-patient privilege, HAW. R. EVID. 504 (protecting communications made for the purpose of diagnosis or treatment of the patient’s physical, mental, or emotional condition).

2) Psychologist-client privilege, HAW. R. EVID. 504.1 (protecting communications made for the purpose of diagnosis or treatment of the client’s mental or emotional condition, including substance addiction or abuse).

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3) Spousal privilege, HAW. R. EVID. 505 (protecting private communications between spouses).

4) Victim-counselor privilege, HAW. R. EVID. 505.5-1 (protecting communications made to a victim counselor for the purpose of counseling or treatment of the victim of abuse).

5) Communications to clergy, HAW. R. EVID. 506 (protecting communications to a member of the clergy).

6) Privilege against self-incrimination. HAW. R. EVID. 509 recognizes claims of the this privilege to refuse to disclose any matter that may tend to incriminate the person to the extent that such privilege exists under the U.S. or Hawaii Constitution.

7) Informant privilege. State actors possess a privilege to refuse to disclose the identity of informants under HAW. R. EVID. 510.

8) Self critical analysis. Hawaii courts have not yet addressed whether “self critical analysis” is an appropriately recognized privilege. However, given that the Ninth Circuit and other state courts within this circuit have rejected the privilege, it is not likely Hawaii courts would recognize this novel privilege either. See Union Pacific R.R. Co. v. Mower, 219 F.3d 1069, 1076 n.7 (9th Cir. 2000).

Requests for Admission

A) Written requests for admission are permitted for any discoverable matter that relates to statements or opinions of fact or the application of law to fact, including the genuineness of any documents. HAW. R. CIV. P. 36.

B) Responses. The matter is deemed admitted unless, within 30 days after service of the request, the responding party serves a written answer or objection. HAW. R. CIV. P. 36. The answer or objection must specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. Id. The responding party has an obligation to seek out information sufficient to respond to the matter and cannot state “lack of information or knowledge” as a reason for failure to admit or deny unless the party states that it has made reasonable inquiry and the information known by the party is insufficient to enable the party to admit or deny. Id.

C) Consequences. Any matter admitted pursuant to a request is conclusively established unless the court on motion permits withdrawal or amendment of the admission. HAW. R. CIV. P. 36(b).

D) Expenses. If, in response to a request for admissions, a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order

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requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. HAW. R. CIV. P. 37(c)(2).

EVIDENCE, PROOFS & TRIAL ISSUES

Accident Reconstruction

A) Hawaii allows the use of tests or experiments for accident reconstruction purposes. The judge has discretion of whether or not to allow the tests or experiments as evidence at trial. Loevsky v. Carter, 70 Haw. 419, 426-427, 773 P.2d 120, 1125-26 (1989).

B) Test or experiments used to reenact the original event. “‘When a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the accident.’” Loevsky, 70 Haw. at 426, 773 P.2d at 1125 (quoting Carr v. Suzuki Motor Co., 280 Ark. 1, 3, 655 S.W.2d 364, 365 (1983)).

C) Test or experiments used as illustrations of the principals involved.

1) Illustrations. “‘Films or videotapes of experiments by an accident reconstructionist, physicist, engineer, or other witness qualified as an expert on the cause of accidents, offered merely to illustrate the principles used in forming an opinion, do not require strict adherence to the facts and are admissible in evidence, provided such films or tapes are not misleading in and of themselves and provided it is made clear that they are offered only as illustrations of the principles involved.’” Loevsky, 70 Haw. at 426, 773 P.2d at 1125 (quoting 3 C. Scott, Photographic Evidence, §1317 (2d. ed. Supp. 1987)).

2) Prejudice. To determine if the films or videotapes are prejudicial or misleading, “the trial court must view the tape to determine what ‘lasting visual impression’ the contents of the tape will create for the jury and the ‘logical inference’ to which this impression will lead. Lau v. Allied Wholesale, Inc., 82 Haw. 428, 437, 922 P.2d 1041, 1050 (Haw. App. Ct. 1996) (quoting Loevsky v. Carter, 70 Haw. 419, 428, 773 P.2d 1120, 1126 (1998)). The court must then determine whether the videotape is really just an attempt to recreate the accident under conditions favorable to the party submitting the tape as evidence. Lau, 82 Haw. at 437, 992 P.2d at 1050 (quoting Fusco v. General Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993)).

D) Admissibility. Hawaii courts will also look at the Hawaii Rules of Evidence to determine the admissibility of accident reconstruction evidence. See, e.g., State v. Pauline, 100 Haw. 356, 60 P.3d 306 (2002). Under HAW. R. EVID. 702 and 703, the court may look at the trustworthiness and reliability of the scientific technique or mode of analysis used by an expert. The Court can refuse to allow expert testimony if feels the underlying technique or mode of analysis is untrustworthy or unreliable. HAW. R. EVID. 702, 703. In Pauline, the Court held that a videotape of a reconstruction of an accident based on a computer simulation could be withheld as evidence under Rules 702 and 703

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if the Court found that the computer simulation technique used to create the videotape was untrustworthy or unreliable. Pauline, 100 Haw. at 369-71, 60 P.3d at 319-21.

Appeal

A) Final orders. Generally, appeals are permitted in civil matters only from final judgments of the circuit and district courts. HAW. REV. STAT. §641-1(a). A judgment, order, or decree is final and appealable if it “ends the litigation by fully deciding all rights and liabilities of all parties and leaves nothing further to be adjudicated.” Casumpang v. ILWU, Local 142, 91 Haw. 425, 426, 984 P.2d 1251, 1252 (1999). However, exceptions to this rule include interlocutory orders, the collateral order doctrine, and the Forgay doctrine.

1) Interlocutory orders. At the court’s discretion, an appeal may be taken from an interlocutory order if the appeal would result in the speedy determination of the litigation. HAW. REV. STAT. § 641-1(b). An “interlocutory order” is one made between the commencement and the end of a suit that does not fully decide one or more claims or the rights and liabilities of one or more parties. Knauer v. Foote, 101 Haw. 81, 84, 63 P.3d 389, 392 (2003). The court’s refusal to allow an appeal from an interlocutory order is not reviewable. HAW. REV. STAT. § 641-1(b).

2) Collateral orders. Certain collateral orders are immediately appealable if the order (1) conclusively determines the disputed action; (2) resolves an important issue completely separate from the merits of the actions; and (3) is effectively unreviewable on appeal from a final judgment. In re Adam, 105 Haw. 507, 516, 100 P.3d 77, 86 (Haw. Ct. App. 2004).

3) Forgay doctrine. Hawaii also recognizes the Forgay doctrine, which provides for immediate appeal of any order for execution upon property if the losing party would suffer irreparable injury if appellate review had to await the final outcome of the litigation. Ditto v. McCurdy, 90 Haw. 345, 351, 978 P.2d 783, 789 (1999).

B) Notice of appeal. Notice of appeal must be filed within 30 days after entry of the judgment or the appealable order. HAW. R. APP. P. 4. Upon a showing of good cause, the court or agency appealed from may extend the time for filing a notice of appeal for not longer than 30 days past the prescribed time. Id.

Scientific and Technical Evidence / Testimony by Experts

A) Daubert instructive. Hawaii courts have expressly refrained from adopting the Daubert test for evaluating expert testimony under Hawaii Rules of Evidence 702. State v. Vliet, 95 Haw. 94, 105, 19 P.3d 42, 53 (2001). However, the Hawaii courts have held that factors enumerated in Daubert and its progeny are instructive (but not binding) because the Hawaii Rule 702 is patterned on the federal rule. Id.

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B) Standard. The critical inquiry with respect to expert testimony is whether such testimony “will assist the trier of fact to understand the evidence or determine a fact in issue....” HAW. R. EVID. 702. Generally, in order to so assist the jury an expert must base his or her testimony upon a sound factual foundation; any inference or opinions must be the product of an explicable and reliable system of analysis; and such opinions must add to the common understanding of the jury. See HAW. R. EVID. 703. The Hawaii Supreme Court has identified five factors to consider in evaluating whether expert testimony is both relevant and reliable:

(1) the evidence will assist the trier of fact to understand the evidence or to determine a fact in issue; (2) the evidence will add to the common understanding of the jury; (3) the underlying theory is generally accepted as valid; (4) the procedures used are generally accepted as reliable if performed properly; and (5) the procedures were applied and conducted properly in the present instance.

State v. Pauline, 100 Haw. 356, 370, 60 P.3d 306, 320 (2002) (citations omitted).

Collateral Source Rule

Hawaii adheres to the “collateral source rule,” which provides that payments received on behalf of a plaintiff from an independent source will not diminish recovery from the wrongdoer. Bynum v. Magno, 106 Haw. 81, 86, 101 P.3d 1149, 1154 (2004).

Convictions

Evidence that the witness has been convicted of a crime cannot be used to impeach a witness unless the crime involves dishonesty. HAW. R. EVID. 609.

Day in the Life Videos

The admissibility of “day in the life” videos has not been specifically addressed in Hawaii case law. Such videos are used at trial, subject to the Hawaii Rules of Evidence.

Dead Man’s Statute

The Hawaii Supreme Court has expressly rejected the application of the so-called “dead man’s statute,” holding that statements made by a deceased may be admissible if the proponent of the statement demonstrates that it was made in good faith, upon personal knowledge, and with clear recollection, unless other circumstances were present indicating a clear lack of trustworthiness. Hew v. Aruda, 51 Haw. 451, 455-59, 462 P.2d 476, 479-80 (1969).

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Medical Bills

A) Standard. A plaintiff must show that the medical services obtained were “necessary and the charges were reasonable” for the injuries sustained. Bynum v. Magno, 106 Haw. 81, 86-87, 101 P.3d 1149, 1154-55 (2004).

B) Reasonable value. Plaintiff can recover the “reasonable value” of a medical services regardless of the actual expenditures made or obligations incurred. Bynum, 106 Haw. at 87, 101 P.3d at 1155.

Thus, the collateral source rule (see above) prevents the reduction of damages to the discounted amount actually paid. Bynum, 106 Haw. at 89, 101 P.3d at 1157.

Medical bills are admissible to show the reasonable value of a plaintiff’s medical services. Bynum, 106 Haw. at 89, 101 P.3d at 1157.

Offers of Judgment

A) Any party may serve upon any adverse party an offer of settlement or judgment. Such offer can be made at any time, so long as it is at least 10 days prior to trial. If the judgment finally obtained by the adverse party is not more favorable than the offer, the adverse party must pay the costs incurred after making the offer. An offer not accepted within 10 days after receipt is deemed withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs. HAW. R. CIV. P. 68.

B) Relationship with Federal Rules. Before 1999, HAW. R. CIV. P. 68 was virtually identical to its federal counterpart. In 1999, however, the Hawaii legislature amended Rule 68 to allow for “any party” to serve an offer of settlement or judgment, not just “a party defending against a claim” as provided for in the federal rules.

Objections and Offers of Proof

A) Objections. An attorney must state the specific ground for the objection or basis for the motion to strike in order to preserve a claim of error on appeal. HAW. R. EVID. 103(a)(1).

B) Offers of proof. If evidence has been excluded, an attorney may provide an offer of proof to explain what the evidence would have shown had it been allowed in order to preserve a claim of error on appeal. HAW. R. EVID. 103(a)(2).

C) Substantial rights. A court’s decision to admit or exclude evidence is given deference on appeal unless the decision affects a substantial right of the party and the court is clearly apprised of the nature of the claimed error and of the corrective action sought. HAW. R. EVID. 103(a).

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Prior Accidents

A) Evidence of prior accidents may be highly probative on material issues of a negligence or strict liability action for limited purposes. Tabieros v. Clark Equip. Co., 85 Haw. 336, 378, 944 P.2d 1279, 1321 (1997). Evidence of other similar accidents or occurrences may be relevant circumstantially to show a dangerous condition, notice, or causation. Id.

B) Substantial similarity. For evidence of previous accidents to be admissible, the proponent must show that the circumstances of the prior accidents were the same or substantially similar to the event in question. Id.

Relationship to the Federal Rules of Evidence

Although Hawaii has codified its own Rules of Evidence, to the extent Hawaii’s Rules of Evidence are similar to their federal counterparts, “interpretations of the federal rule by treatises and cases are instructive.” Ranches v. City & County of Honolulu, 115 Haw. 462, 468 n.8, 168 P.3d 592, 598 n.8 (2007).

Seat Belt and Helmet Use Admissibility

Evidence of a party’s failure to wear a helmet or a seatbelt is inadmissible. Kealoha v. County of Hawaii, 74 Haw. 308, 322, 844 P.2d 670, 677 (1993).

Spoliation of Evidence

A) Hawaii courts have “wide-ranging authority to impose sanctions for the spoliation of evidence.” Stender v. Vincent, 92 Haw. 355, 362, 992 P.2d 50, 57 (2000). In addition to discovery sanctions available under HAW. R. CIV. P. 37(b), the court can “fashion a remedy to cure prejudice suffered by one party as a result of another party’s loss or destruction of critical evidence” even in the absence of specific statutory remedies. Richardson v. Sport Shinko, 76 Haw. 494, 507-08, 880 P.2d 169, 182-83 (1994). A finding of bad faith is not necessary for the court to impose spoliation sanctions. Stender, 92 Haw. at 364, 992 P.2d at 59.

B) Remedies. Possible remedies under HAW. R. CIV. P. 37(b) for spoliation of evidence include:

1) Default judgment. Dismissal is an available sanction when a party has engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings.

2) Adverse inference. A court may instruct a jury that it may draw an inference adverse to the party responsible for destroying relevant evidence. See, e.g., Stender, 92 Haw. at 365, 992 P.2d at 60.

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3) Rebuttable presumption. The court may apply a rebuttable presumption, shifting the burden of proof to the party who is responsible for spoliation of evidence.

4) Civil discovery sanctions. Such sanctions include excluding certain evidence, deeming certain facts established for the purposes of the action, prohibiting the destroying party from asserting certain defenses, or monetary sanctions.

5) Attorney’s fees. An assessment of attorney’s fees for spoliation of evidence is within the court’s inherent power.

C) Independent cause of action. The Hawaii Supreme Court has expressly declined to resolve whether Hawaii would recognize the tort of spoliation of evidence as an independent cause of action. Matsuura v. E.I. du Pont de Nemours & Co., 102 Haw. 149, 169, 73 P.3d 687, 707 (2003).

Subsequent Remedial Measures

Evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct in connection with an event. HAW. R. EVID. 407. However, such evidence may be admitted for another purpose, such as proving a dangerous defect in products liability cases, ownership, control, feasibility of precautionary measures, or impeachment.

Use of Photographs

Original photographs are admissible when relevant and properly verified under HAW. R. EVID. 901, HAW. R. EVID. 1002. Generally, verification requires the testimony of a witness who is able to testify foundation that the photo is a substantially accurate representation of the thing being depicted.

DAMAGES

Caps on Damages Hawaii has a single, narrowly tailored cap on damages for pain and suffering in personal injury cases. Pain and suffering awards are limited to $375,000. HAW. REV. STAT. § 663-8.7; HAW. REV. STAT. § 663-8.5(b). This limitation does not apply in cases involving: intentional torts; torts relating to environmental pollution; toxic and asbestos-related torts; torts relating to aircraft accidents; strict and products liability torts; and torts relating to certain motor vehicle accidents. HAW. REV. STAT. § 663-8.7; HAW. REV. STAT. § 663-10.9(2).

Calculation of Damages

A) In Hawaii, pursuant to HAW. REV. STAT. § 663-8.5(a), a plaintiff bringing a cause of action for personal injuries may recover for various damages including:

1) Pain and suffering;

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2) Mental anguish;

3) Disfigurement;

4) Loss of enjoyment of life;

5) Loss of consortium; and

6) All other nonpecuniary losses or claims.

B) Economic and noneconomic damages. Generally, personal injury damages may be categorized as either economic or noneconomic. Economic damages, known as special damages, include losses such as medical and hospital expenses that can be estimated and monetarily compensated. See Kienker v. Bauer, 110 Haw. 97, 100 n.4, 129 P.3d 1125, 1128 n.4 (2006). Noneconomic damages, known as general damages, include pain and suffering and “cannot be measured definitively in monetary terms.” Dunbar v. Thompson, 79 Haw. 306, 315, 901 P.2d 1285, 1294 (Haw. Ct. App. 1995). They include damages for pain and suffering, mental anguish, disfigurement, loss of enjoyment of life, loss of consortium, etc. HAW. REV. STAT. § 663-8.5(a).

Available Items of Personal Injury Damages A) Past medical bills. A plaintiff may recover damages from past medical bills. Hawaii

courts allow a plaintiff injured by the tortious conduct of a defendant to recover the reasonable value of medical services. See Bynum v. Magno, 106 Haw. 81, 92, 101 P.3d 1149, 1160 (2004). This amount is not limited to the expenditures actually paid by insurance companies or programs such as Medicaid/Medicare. Id. In actions to recover medical expenses caused by a defendant’s negligence, a plaintiff must show that the medical services obtained for any injuries sustained were necessary and that the charges were reasonable. Bynum, 106 Haw. at 86-87, 101 P.3d at 1154-55.

B) Future medical bills. Future medical bills are considered economic damages and are recoverable under Hawaii law. See Kometani v. Heath, 50 Haw. 89, 95, 431 P.2d 931, 936 (1967) (affirming that it was proper for the jury to consider the “reasonable value” of future medical expenses).

C) Hedonic damages. A plaintiff may recover for hedonic damages in tort cases. See HAW. REV. STAT. § 663-8.5. The Hawaii Supreme Court defines hedonic damages as monetary awards intended to compensate “for the loss of enjoyment of life, or for the value of life itself, as measured separately from the economic productive value that an injured or deceased person would have had.” Montalvo v. Lapez, 77 Haw. 282, 284 n.2, 884 P.2d 345, 347 n.2 (1994) (quoting BLACK’S LAW DICTIONARY 391 (6th ed.1990)).

D) Increased risk of harm. No Hawaii appellate court opinion or statute clearly addresses this issue.

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E) Disfigurement. A plaintiff may recover for disfigurement under Hawaii law. HAW. REV. STAT. § 663-8.5(a).

F) Loss of normal life. No Hawaii appellate court opinion or statute clearly addresses this issue.

G) Disability. Hawaii law allows recovery for damages where an injured plaintiff suffers disability as a result of a defendant’s actions. See, e.g., Bachran v. Morishige, 52 Haw. 61, 65, 469 P.2d 808, 811 (1970).

H) Past pain and suffering. Past pain and suffering is considered a recoverable damage if there is sufficient evidence to prove a physical injury. See Bachran, 52 Haw. at 68, 469 P.2d at 813.

I) Future pain and suffering. Hawaii law requires that damages for future pain and suffering be awarded only when reasonably probable. Expert testimony is necessary to show future pain and suffering where an injury is subjective in nature. See Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 44-47, 837 P.2d 1273, 1294-96 (1992). Subjective injuries differ from objective injuries in that the latter manifests physically, in a form observable to others. See id. Laypeople cannot infer with reasonable certainty future pain and suffering resulting from subjective injuries. Id.

J) Loss of society. Loss of society is a recoverable damage under Hawaii’s wrongful death statute. HAW. REV. STAT. § 663-3.

K) Lost income, wages, earnings. A plaintiff may recover for loss or impairment of earning capacity and future earnings. HAW. REV. STAT. § 663-8.3(a). The effect of probable taxes must be considered when calculating awards of future earnings. Id.

Mitigation A) A plaintiff has a duty to mitigate, or minimize, his or her damages under contract and tort

law. See Tabieros v. Clark Equipment Co., 85 Haw. 336, 373, 944 P.2d 1279, 1316 (1997) (citing Malani v. Clapp, 56 Haw. 507, 517, 542 P.2d 1265, 1271 (1975)).

B) Treatment. An injured plaintiff must obtain reasonable treatment and follow the advice of a competent physician in order to mitigate damages. Tabieros, 85 Haw. at 373, 944 P.2d at 1316 (citation omitted). An injured plaintiff will not be awarded damages that could have been prevented had he or she submitted to reasonable treatment to improve his or her condition. Id. This includes injuries that are aggravated by a plaintiff’s refusal to follow the directions of his or her competent physician. Id.

C) Factors. Several factors are considered when courts decide whether an injured plaintiff has met his or her duty to mitigate. For example, the mere fact that a plaintiff’s scar may have been reduced in size by plastic surgery was not sufficient to hold that a plaintiff acted unreasonably in not undergoing the surgery. Factors including cost of the operation, resulting inconvenience, and recommendation by a medical expert are

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considered in such an analysis. See Franco v. Fujimoto, 47 Haw. 408, 427, 390 P.2d 740, 751 (1964), overruled in part on other grounds by Barretto v. Akau, 51 Haw. 461, 463 P.2d 917, 293-94 (1969).

D) Burden. The burden of proving that mitigation is possible and that the injured plaintiff failed to take reasonable steps to mitigate his or her damages rests upon the defendant. Tabieros, 85 Haw. at 373, 944 P.2d at 1316.

Punitive Damages A) Purpose. Punitive damages are generally defined as damages awarded “for the purpose

of punishing the defendant for aggravated or outrageous misconduct” and as a deterrence measure against future, similar conduct. Masaki v. Gen. Motors Corp., 71 Haw. 1, 6, 780 P.2d 566, 570 (1989).

B) Standard. To recover punitive damages, with clear and convincing evidence, an injured plaintiff must prove that the defendant has acted: (1) “wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations”; (2) in willful misconduct; or (3) with a “conscious indifference to consequences.” Masaki, 71 Haw. at 16-17, 780 P.2d at 575.

C) Mental state. When determining whether an award of punitive damages is appropriate, the primary consideration is the defendant’s mental state. Masaki, 71 Haw. at 7, 780 P.2d at 570-71. The nature of a defendant’s conduct is a secondary consideration. Id. An award of punitive damages always requires a “positive element of conscious wrongdoing.” Id. (citing RESTATEMENT (SECOND) OF TORTS § 908 cmt. b).

Recovery of Pre- and Post-Judgment Interest A) Prejudgment interest. Prejudgment interest is governed by HAW. REV. STAT. § 636-16.

Prejudgment interest compensates a prevailing party for the injustice of a long delay in judgment for any reason, including inevitable litigation delays. See Metcalf v. Voluntary Employees’ Ben. Ass’n of Hawaii, 99 Haw. 53, 61, 52 P.3d 823, 831 (2002). It is compensatory in nature and courts are allowed to designate the date on which the interest may commence. Id.; see also Roxas v. Marcos, 89 Haw. 91, 153, 969 P.2d 1209, 1271 (1998). Prejudgment interest is wholly separate from punitive damage awards. Calleon v. Miyagi, 76 Haw. 310, 321-2, 876 P.2d 1278, 1289-90 (1994).

B) Post-judgment interest. Post-judgment interest, like prejudgment interest, is governed by HAW. REV. STAT. § 636-16. It should be granted from the date judgment was entered in any civil suit. Richards v. Kailua Auto Mach. Service, Inc., 10 Haw.App. 613, 624, 880 P.2d 1233, 1239 (1994). In a case involving the State, the post-judgment interest award began to accrue upon the final judgment on appeal, not the date on which the circuit court entered its judgment. Taylor-Rice v. State, 105 Haw. 104, 112, 94 P.3d 659, 667 (2004).

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C) Limits. Both prejudgment and post-judgment interest awards are limited to ten percent per year. HAW. REV. STAT. § 478-3. It may be awarded no earlier than the date when the injury first occurred in tort or the date when the breach first occurred in contract. HAW. REV. STAT. § 636-16.

Recovery of Attorneys’ Fees A) The losing party to an action may be obligated to pay the prevailing party’s attorneys’

fees where required by statute, stipulation or agreement, and only reasonable attorneys’ fees will be allowed. See, e.g., Ranger Ins. Co. v. Hinshaw, 103 Haw. 26, 31, 79 P.3d 119, 124 (2003).

B) Burden. A party seeking attorneys’ fees bears the burden of showing that the fees are reasonable and that they were reasonably and necessarily incurred. See Smothers v. Renander, 2 Haw.App. 400, 408-9, 633 P.2d 556, 563 (1981).

C) Specific grounds. The trial court had discretion in determining reasonableness of attorneys’ fees, but generally, judges must specify the grounds upon which attorneys’ fees are awarded. See Porter v. Hu, 116 Haw. 42, 67, 169 P.3d 994, 1019 (Haw. Ct. App. 2007). The grant or denial of attorneys’ fees is reviewed under the abuse of discretion standard. See, e.g., Maui Tomorrow v. State, Board of Land and Natural Resources, 110 Haw. 234, 242, 131 P.3d 517, 525 (2006).

D) Reasonable fee. In Hawaii, there is a strong presumption that the lodestar amount—the number of hours counsel spent on a case multiplied by counsel’s hourly rate—represents the reasonable fee for an attorney. See Schefke v. Reliable Collection Agency, Ltd., 96 Haw. 408, 419, 32 P.3d 52, 63 (2001). Trial judges are considered experts, however, and the amount of attorneys’ fees awarded is within the discretion of the court. See Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Haw. 286, 306, 141 P.3d 459, 479 (2006).

Settlements Involving Minors Court approval is required to secure a settlement involving minors. See Leslie v. Estate of Tavares, 91 Haw. 394, 401-3, 984 P.2d 1220, 1227-29 (1999). Judges must scrutinize settlement agreements to ensure appropriateness, fairness, and enforceability. See In re Doe, 90 Haw. 200, 211, 978 P.2d 166, 177 (Haw. Ct. App. 1999); see also Leslie, 91 Haw. at 401-3, 984 P.2d 1227-29. The courts have a duty to insure the continuing well-being of minors whenever the minor is a party to litigation, or when the minor is involved in “a proceeding directly relating to his well-being.” Blackshear v. Blackshear, 52 Haw. 480, 482, 478 P.2d 852, 854 (1971).

Taxation of Costs A) HAW. REV. STAT. § 607-9 governs taxation of costs. A presumption exists that a

prevailing party may be awarded its costs; the burden of showing that particular cost requests are unreasonable rests upon the opposing party. See Wong v. Takeuchi, 88 Haw. 46, 53 (1998), 961 P.2d 611, 618; see also HAW. R. CIV. P. 54(d). Costs eligible for taxation include, but are not limited to, “intrastate travel expenses for

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witnesses and counsel, expenses for deposition transcript originals and copies, and other incidental expenses, including copying costs, intrastate long distance telephone charges, and postage, sworn to by an attorney or a party, and deemed reasonable by the court.” HAW. REV. STAT. § 607-9. Courts may consider “the equities of the situation” when determining whether and what costs should be taxed. Id.

Unique Damages Issues A) Awarding both treble and punitive damages for the same act is considered improper

double recovery; a plaintiff may receive treble damages or punitive damages, whichever is greater. Han v. Yang, 84 Haw. 162, 178, 931 P.2d 604, 620 (Haw. Ct. App. 1997).

B) Hawaii allows plaintiffs to file suit for emotional distress damages arising from property damage, but only in instances where the emotional distress results in physical injury or mental illness of the person whose property is damaged or destroyed. HAW. REV. STAT. § 663-8.9.

C) Loss-of-use damages are awarded in order “to provide reasonable compensation for inconvenience or monetary loss suffered during the time required for repair of damaged property.” Fukida v. Hon/Hawaii Service and Repair, 97 Haw. 38, 44-45, 33 P.3d 204, 210-11 (2001). Such recovery is generally limited to “the period of time reasonably necessary to obtain a replacement.” Id.

This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice.