CourtListener 10847291

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-APR-2026
07:46 AM
Dkt. 147 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

ANDREW KINGMAN, Individually, Plaintiff-Appellant,
v.
ATLANTIS SUBMARINES HAWAII, LLC, a Delaware
Limited Liability Company, Defendant-Appellee,
and
DOE DEFENDANTS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, McCullen and Guidry, JJ.)

Plaintiff-Appellant Andrew Kingman (Kingman) appeals

from the Final Judgment entered on September 18, 2023 by the

Circuit Court of the First Circuit 1 (circuit court). The Final

Judgment was entered in favor of Defendant-Appellee Atlantis

Submarines Hawaii, LLC (Atlantis).

1 The Honorable John M. Tonaki presided.
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In the underlying case, Kingman filed his operative

First Amended Complaint (Amended Complaint) in May 2021, which

asserted various claims related to injuries that Kingman

allegedly sustained while performing repair work on an Atlantis

ocean vessel.

A discovery dispute arose over conducting Kingman's

deposition. The discovery deadline was March 23, 2023.

Atlantis represented that, between December 6, 2022

and January 12, 2023, it attempted to schedule Kingman's

deposition. On January 17, 2023, Atlantis noticed Kingman's

deposition for January 26, 2023. On January 20, 2023 Kingman

notified Atlantis that he would not appear. Atlantis attempted

to secure an alternative date, but Kingman did not respond.

Atlantis filed "[Atlantis' Motion to Compel Deposition of

[Kingman]" (Motion to Compel) on February 2, 2023. 2

The circuit court sanctioned Kingman for his non-

cooperation with Atlantis' requests to depose him. In March

2 We note that "[Kingman's] Memorandum in Opposition to [Atlantis']
Motion to Compel Deposition of [Kingman] Filed February 2, 2023 [Dkt 147]"
made representations indicating Kingman resided in Texas: "Plaintiff's
inability to travel to Hawaiʻi in the past five weeks"; "planning travel from
Texas to Hawaiʻi takes time"; "Plaintiff was not available to travel to
Hawaiʻi on the date unilaterally noticed"; "Plaintiff and counsel's inability
to immediately travel to Hawaiʻi are not grounds for expenses under HRCP";
"Defendant has refused to reasonably accommodate Plaintiff who resides
thousands of miles from the noticed law office in Honolulu"; and "Plaintiff
only requests reasonable time to plan a trip to Hawaiʻi."

During the hearing on the Motion to Compel, Atlantis asked for
confirmation that Kingman lives in Texas. Kingman's counsel represented that
Kingman still lives in Hawai‘i, and it is counsel that must travel.
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2023, the circuit court entered its "Order Granting [Atlantis']

Motion to Compel Deposition of [Kingman] Filed February 2, 2023

[Dkt. No. 147]" (Order Compelling Deposition), which ordered

Kingman "to appear for his oral deposition, in person, at the

Honolulu, Hawaii offices of [Atlantis'] counsel." The circuit

court extended the March 23, 2023 discovery deadline "for the

sole purpose of allowing [Kingman's] oral deposition . . . to be

completed by [Atlantis]," and awarded Atlantis "reasonable

expenses incurred in making the [Motion to Compel]."

It appears uncontested that the parties agreed to

conduct Kingman's deposition on April 7, 2023, at 10:00 a.m. in

Honolulu. At 6:27 p.m. on the evening prior, Kingman's counsel

emailed Atlantis stating that the deposition had to be

rescheduled "due to unforeseen circumstances." When Atlantis

asked for an explanation, Kingman's counsel stated that Kingman

"was not able to make it to the depo, as explained."

On April 10, 2023, Atlantis filed "[Atlantis' Motion

for Terminating Sanctions for [Kingman's] Failure to Appear for

Deposition as Ordered by the [circuit court]" (Motion to

Terminate). At the May 2, 2023 hearing on the Motion to

Terminate, Kingman's counsel represented that they were unable

to contact Kingman the day before the scheduled deposition,

i.e., "[w]e simply could not get ahold of him" and "[w]e just

didn't know what the circumstances were." The circuit court
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noted that Kingman's counsel sent a letter to the circuit court

saying "this nonappearance was due to a conflict."

In June 2023, the circuit court entered its "Order

Granting in Part and Denying in Part [Atlantis'] Motion for

Terminating Sanctions for [Kingman's] Failure to Appear for

Deposition as Ordered by the [circuit court] Filed April 10,

2023 [Dkt. No. 243]" (Sanctions Order), which sanctioned Kingman

as follows,

1. The [circuit court] finds that pursuant to the [Order
Compelling Deposition], [Kingman] and his counsel should
have known that [Kingman] was required to appear for his
deposition unless his appearance was impossible due to
grave circumstances. Based on the record, there were no
circumstances that would have prevented [Kingman's]
appearance for his deposition.

2. The Motion [to Terminate] is granted and pursuant to
Rule 37(b)(2)(B) of the Hawaii Rules of Civil Procedure
[(HRCP)], the [circuit court] prohibits [Kingman] from
introducing any evidence originating with him, including:

a. Testimony from [Kingman].
b. Any expert opinion based on statements by
[Kingman].
c. Any exhibit which requires foundation to be
laid by [Kingman].
d. Any exhibit which otherwise originates from
[Kingman].

3. The Motion [to Terminate] is denied as to [Atlantis']
request for terminating sanctions.

(Emphasis added.)

Other discovery disputes between the parties led to

the entry of additional orders. In April 2023, the circuit

court partially granted "[Atlantis'] Motion to Exclude Witnesses

Identified in [Kingman's] Final Naming of Witnesses Filed

January 21, 2023 [Dkt. No. 127] and All Expert Witnesses
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Identified in [Kingman's] Disclosure of Expert Witnesses Made on

February 6, 2023 [Dkt No. 149] Filed March 1, 2023 [Dkt. No.

155]," excluding four of the five expert witnesses that Kingman

had identified for the first time in his February 2023 expert

witness disclosures, and who had not produced expert reports.

In July 2023, the circuit court granted "[Atlantis'] Motion for

Leave to Identify Additional Non-Expert Witnesses Filed May 23,

2023 [Dkt. No. 338]" (Motion to Add Witnesses) whose identity

Atlantis had previously declined to disclose on the basis of

attorney work product privilege.

The circuit court granted summary judgment in favor of

Atlantis on all of Kingman's claims. In its June 9, 2023 "Order

Granting in Part and Denying in Part [Atlantis'] Motion for

Partial Summary Judgment or Alternatively, to Preclude Evidence

Not Disclosed by the Discovery Deadline Filed March 30, 2023

[Dkt. No. 227]," the circuit court granted partial summary

judgment in favor of Atlantis on Kingman's claims for

maintenance and cure, and for punitive damages as to the Jones

Act, unseaworthiness, and maintenance and cure claims. In its

August 14, 2023 "Order Granting [Atlantis'] Motion for Summary

Judgment Filed June 25, 2023 [Dkt. No. 513]," the circuit court

disposed of Kingman's remaining claims.

Kingman asserts three points of error on appeal,

contending that the circuit court abused its discretion by
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granting Atlantis' motions: (1) "for terminating sanctions after

[Kingman] failed to appear at a deposition because of an

inadvertent scheduling error"; (2) "to untimely designate five

surveillance witnesses, whom it had long known about, based on

'work-product privilege'"; and (3) "to exclude [Kingman's] four

damages experts based on his purported failure to provide expert

reports, which—although not required—resulted from Atlantis'[]

wrongfully withholding of discovery."

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Kingman's points of error as follows:

(1) Kingman challenges the circuit court's Sanctions

Order. We review the circuit court's imposition of sanctions

for abuse of discretion. Aloha Unlimited, Inc. v. Coughlin,

79 Hawaiʻi 527, 532, 904 P.2d 541, 546 (App. 1995) ("The circuit

court is given broad discretion in determining the sanctions to

be imposed pursuant to HRCP Rule 37(b)(2)." (cleaned up)).

Kingman contends that the sanctions on Kingman

"amounted to default sanctions," because they precluded Kingman

from introducing evidence necessary to establish the cause of

his alleged injuries and, in so doing, "directly led to [the

circuit court's] . . . erroneous grant of summary judgment

against [Kingman] on all claims."
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HRCP Rule 37(b)(2)(C) grants the circuit court

authority to impose default or terminating sanctions -- i.e., by

entering an order "dismissing the action or proceeding or any

part thereof, or rendering a judgment by default against the

disobedient party." That provision is not applicable here. The

Sanctions Order expressly stated that the circuit court was

imposing sanctions pursuant to HRCP Rule 37(b)(2)(B), which

authorizes the circuit court to issue "[a]n order refusing to

allow the disobedient party to support or oppose designated

claims or defenses, or prohibiting the disobedient party from

introducing designated matters in evidence."

The Sanctions Order also expressly denied "[Atlantis']

request for terminating sanctions." As the circuit court

explained at the May 2, 2023 hearing on the Motion to Terminate,

it was not dismissing Kingman's case but, rather, was imposing a

limitation on Kingman's introduction of evidence:

[T]he [circuit court] has spent an excessive amount of time
on discovery motions and disputes in this case. The fact
that the deposition of [Kingman] was ordered pursuant to
the [circuit court's Order Compelling Deposition],
[Kingman] and counsel should have known, by the [circuit
court's Order Compelling Deposition], that he needed to
appear for the deposition unless appearance was impossible
due to grave circumstances. And, obviously, that doesn't
appear on the record, any circumstances that would have
prevented his appearance.

So the [circuit court] is going to -- [circuit court]
will not dismiss the case, but will, pursuant to Rule
37(b)(2)(A)--(b)(2)(B), will issue an order prohibiting
[Kingman] from introducing certain designated matters into
evidence.

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And this is -- these designated matters are: Will
prohibit [Kingman] from introducing any evidence
originating with him. So that includes testimony from him.
It includes any expert opinions based on statements by
[Kingman], exhibits which require foundation to be laid by
[Kingman], and exhibits which otherwise originate from him.

(Emphasis added.)

The parties continued to vigorously litigate the case

after the Sanctions Order was issued. Kingman asserted, in

"[Kingman's] Memorandum in Opposition to [Atlantis'] Motion for

Summary Judgment Filed June 25, 2023 [Dkt. No. 511]," that "even

without [Kingman's] testimony, . . . multiple witnesses,

documents and records establish" Kingman's claims. Kingman

represented that he "is not the only source of evidence for the

November 11, 2019 incident." Kingman further represented that

he "is not the only source of evidence that the incident caused

his injuries." It was therefore Kingman's position on summary

judgment that, notwithstanding the bar on evidence "originating

with him," he could nevertheless prove his case at trial.

Kingman cannot retreat from this position in order to re-

characterize the Sanctions Order as "directly [leading] to . . .

summary judgment."

We therefore conclude that the circuit court did not

abuse its discretion by entering the Sanctions Order.

(2) Kingman contends that the circuit court abused its

discretion by allowing Atlantis' untimely designation of five

surveillance witnesses, on the basis of Atlantis' assertion of

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work product privilege. We review Kingman's contention for

abuse of discretion. Anastasi v. Fidelity Nat. Title Ins. Co.,

137 Hawaiʻi 104, 111, 366 P.3d 160, 167 (2016) ("[T]he extent to

which discovery is permitted under [HRCP] Rule 26 is subject to

considerable latitude and the discretion of the trial court.

Thus, the exercise of such discretion will not be disturbed in

the absence of a clear abuse of discretion that results in

substantial prejudice to a party." (citation omitted)).

The record reflects that Kingman requested the

production of documents relating to evidence of surveillance on

Kingman in November 2021. Atlantis responded to Kingman's

request in July 2022 by not disclosing the requested information

on the basis of attorney work product privilege. Six weeks

prior to the assigned trial date of July 3, 2023, Atlantis

produced the surveillance videos on Kingman, and filed its

Motion to Add Witnesses.

The record does not support the circuit court's

finding that Atlantis' late-produced surveillance evidence was

privileged pursuant to the attorney work product doctrine.

There is no declaration from Atlantis' counsel or other evidence

to establish that the surveillance evidence, which was

ultimately disclosed to Kingman, was prepared in anticipation of

trial and would not have been created in substantially similar

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form but for the prospect of litigation. Anastasi, 137 Hawaiʻi

at 113-14, 366 P.3d at 169-70.

Nevertheless, it was within the discretion of the

circuit court to permit the late identification of the

surveillance witnesses, and Kingman fails to demonstrate an

abuse of discretion. The HRCP "reflect a basic philosophy that

a party to a civil action should be entitled to the disclosure

of all information in the possession of another person prior to

trial, unless the information is privileged." Haw. Police

Dep't. v. Kubota, 155 Hawaiʻi 136, 154, 557 P.3d 865, 883 (2024)

(citation omitted). "[A] trial court has broad discretionary

powers to balance discovery interests and protect confidential

information." Id.

The circuit court has broad discretion over the timing

of evidence production pursuant to HRCP Rule 26(d) (2015). 3

Here, Atlantis represented to the circuit court that, in order

to preserve the impeachment value of the surveillance evidence,

it moved to introduce the surveillance evidence only after the

Sanctions Order eliminated the need to depose Kingman. It

3 HRCP Rule 26 was amended effective January 1, 2022. Because
Kingman's Complaint was filed prior to January 1, 2022, the pre-January 1,
2022 version of HRCP Rule 26 applies. The pre-January 1, 2022 version of
HRCP Rule 26(d), Sequence and Timing of Discovery, provided that: "Unless the
court upon motion, for the convenience of parties and witnesses and in the
interests of justice, orders otherwise, methods of discovery may be used in
any sequence, and the fact that a party is conducting discovery, whether by
deposition or otherwise, shall not operate to delay any other party's
discovery."

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appears that Atlantis produced the surveillance evidence on

May 23, 2023, approximately six weeks prior to the calendared

trial date, which gave Kingman sufficient time to review the

evidence in preparation for trial. Kingman does not identify

any prejudice that resulted to him by the late disclosure of the

surveillance evidence and naming of the witnesses. On this

basis, we conclude that the circuit court did not abuse its

discretion in allowing Atlantis to designate the five

surveillance witnesses.

(3) Kingman contends that the circuit court abused its

discretion by excluding his four damages experts 4 based on his

failure to produce expert reports, which HRCP Rule 26(b)(5)

(Trial Preparation: Experts) does not require. Kingman further

contends that he was unable to provide the reports because

Atlantis wrongfully withheld discovery.

Kingman's contentions lack merit. Kingman was

obligated to provide written reports from his experts pursuant

to the express requirements of the circuit court's trial setting

conference orders, and the parties' stipulation. The circuit

4 Atlantis moved for the exclusion of five expert witnesses
identified in Kingman's February 6, 2023 expert witness disclosures: four
experts who would purportedly testify as to damages (Harold Asher, Jeffrey E.
Meyers, Todd Cowen, M.D., and William L. Davenport), and a fifth expert who
would purportedly testify as to liability (Michael Lesback). The circuit
court excluded the damages experts, but ordered that Kingman's liability
expert would be allowed to testify, conditioned upon submission of Mr.
Lesback's report within ten days of the entry of the court's order.

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court's October 14, 2021 and April 28, 2022 trial setting

conference orders set a deadline for the parties' exchange of

expert reports. The parties' December 20, 2022 "Stipulation to

Extend Expert Report Disclosure Deadlines" provided "that the

respective expert report disclosure deadlines in the above-

captioned matter are extended to February 6, 2023 for [Kingman]

and to March 8, 2023 for [Atlantis]."

Moreover, Atlantis' alleged withholding of discovery

did not interfere with Kingman's ability to produce the damages

experts' reports. As the circuit court correctly determined,

"the issue of damages or the factual background for the damages

experts would have been solely in the knowledge and possession

of [Kingman] himself."

We conclude that the circuit court did not abuse its

discretion by excluding Kingman's four damages experts.

For the foregoing reasons, we affirm the circuit

court's Final Judgment.

DATED: Honolulu, Hawaiʻi, April 23, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Randall C. Whattoff,
for Plaintiff-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Normand R. Lezy,
for Defendant-Appellee. /s/ Kimberly T. Guidry
Associate Judge