R.H. v. Hayashi.

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-23-0000277
09-OCT-2026
10:44 AM
Dkt. 42 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
---o0o---
R.H., Individually and as Guardian Ad Litem for A.H.,
an Incompetent Adult,
Plaintiff-Appellant/Cross-Appellee,
vs.
KEITH T. HAYASHI, in his official capacity as
Superintendent of the Hawaiʻi Department of Education and
STATE OF HAWAIʻI DEPARTMENT OF EDUCATION,
Defendants-Crossclaimants-Crossclaim Defendants-Appellees/Cross-
Appellees,
and
STATE OF HAWAIʻI,
Defendant-Crossclaimant-Crossclaim Defendant-
Appellee/Cross-Appellant,
and
CHRIS NAKAGAWA and ANTHONY JONES,
Defendants-Crossclaimants-Crossclaim Defendants-
Appellees/Cross-Appellees,
and
LANAKILA PACIFIC, a non-profit organization,
Defendant-Crossclaim Defendant-Crossclaimant-
Appellee/Cross-Appellee.
________________________________________________________________
SCAP-23-0000277

-- 1 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-23-0000277; CIV. NO. 1CC121003327)
OCTOBER 9, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ.,
AND CIRCUIT JUDGE REMIGIO, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Both the plaintiffs and defendants appeal a circuit court
final judgment in this transfer case.
A.H. (pseudonym “Amy”) has severe cognitive disabilities
and lacks capacity to consent to sex. While a student at
McKinley High School (“McKinley”), Amy was sexually abused by
male students. The abuse eventually caused her to suffer a
psychotic breakdown and sustain serious, continuing
psychological injuries.
Amy’s mother (“Mother”) filed this negligence lawsuit on
behalf of Amy and herself (collectively, “Plaintiffs”) in the
Circuit Court of the First Circuit (“circuit court”). The State
of Hawai‘i, its Department of Education (“DOE”), and DOE
employees (collectively, “the State”) were named as defendants.
Plaintiffs alleged that the State negligently failed to protect
Amy from repeated sexual abuse while she attended McKinley.
The circuit court presided over a sixty-six-day bench
trial. There was extensive evidence that school personnel knew
2

-- 2 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of Amy’s significant cognitive disabilities, recognized her
extraordinary vulnerability to sexual exploitation, were
repeatedly confronted with warning signs that she was being
sexually abused, but failed to take reasonable measures to
prevent it.
The circuit court concluded that the State negligently
failed to protect Amy. It determined that Plaintiffs’ injuries
and requisite treatment merited a total damages award of more
than $14 million, more than half for special damages. But
without any request from the State that it do so, in its written
decision, the circuit court apportioned 30% of the fault to the
male students and reduced Plaintiffs’ damages award by that
percentage.
This sua sponte apportionment is the main issue on appeal.
The circuit court cited Hawai‘i Revised Statutes (“HRS”) §
663-10.5 (Supp. 2017) as the basis for this apportionment. That
statute provides in relevant part:
§663-10.5 Government entity as a tortfeasor; abolition of
joint and several liability. (a) Any other law to the
contrary notwithstanding, . . . in any case where a
government entity is determined to be a tortfeasor along
with one or more other tortfeasors, the government entity
shall be liable for no more than that percentage share of
the damages attributable to the government entity[.]
(b) For purposes of this section, the liability of a
government entity shall include its vicarious liability
for the acts or omissions of its officers and
employees.
(c) For purposes of this section, “government entity” means
any unit of government in this State, including:
(1) The State[.]
3

-- 3 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Plaintiffs contend the circuit court improperly reduced
their recovery when the State never pursued apportionment of
liability to the male students. The State pled HRS § 663-10.5
as a defense in its answer but never argued that the male
students should bear a portion of liability. Rather, in its
closing argument and proposed findings and conclusions, the
State briefly argued that if the State was found liable, then
part of the liability should be apportioned to Mother.
Specifically, the State asked the circuit court to reduce
the Plaintiffs’ damages by Mother’s alleged negligence in
failing to provide more information to the school. The circuit
court rejected this argument but then, on its own accord,
allocated liability to the male students.
On Plaintiffs’ points of error on appeal, we hold that the
circuit court’s sua sponte allocation of fault to the male
students violated Plaintiffs’ Hawaiʻi constitutional due process
rights. Plaintiffs were deprived of notice and an opportunity
to be heard on whether the boys were actually “other
tortfeasors” under HRS § 663-10.5 and, if so, what percentage,
if any, should be allocated to them. We set out what steps due
process requires for an “other tortfeasor” determination.
We also hold that there was insufficient evidence that the
male students qualified as “other tortfeasors” under HRS § 663-
10.5, especially because the circuit court explicitly found
4

-- 4 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
little to no evidence the boys knew any details about Amy’s
cognitive disabilities or that they were aware or should have
been aware that Amy lacked capacity to consent to sex.
We further hold that apportionment of liability under HRS §
663-10.5 is an affirmative defense for which the State did not
meet its burden of proof.
Finally, based on these holdings, we also hold that the
circuit court erred by denying Plaintiffs’ motion to amend the
judgment to reverse its apportionment decision.
On cross-appeal, the State argues that the circuit court
abused its discretion by limiting Amy’s deposition, refusing to
order a Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule 351
medical examination of Amy, and awarding excessive damages.
These arguments are without merit. The circuit court acted
within its discretion by denying additional discovery based on
the extensive evidence indicating that further examination of
1 HRCP Rule 35 states, in relevant part:
Rule 35. Physical and Mental Examination of Persons. (a)
Order for Examination. When the mental or physical
condition . . . of a party, or of a person in the custody
or under the legal control of a party, is in controversy,
the court in which the action is pending may order the
party to submit to a physical or mental examination by a
suitably licensed or certified examiner or to produce for
examination the person in the party's custody or legal
control. The order may be made only on motion for good
cause shown and upon notice to the person to be examined
and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the
person or persons by whom it is to be made.
5

-- 5 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Amy, whether through a continued deposition or a HRCP Rule 35
examination, would likely cause her significant psychological
harm. Finally, the damages awarded by the circuit court were
supported by the record.
We therefore affirm the circuit court’s findings,
conclusions, and judgment except for its allocation of 30% of
the liability to the male students. We remand to the circuit
court for entry of an amended judgment consistent with this
opinion.
II. Background
A. Factual Background
This factual background is derived from the circuit court’s
findings of fact.
Amy was a special education student with serious cognitive
impairments. She was identified as a special education student
in the third grade and since then had Individualized Education
Plans (“IEP”) that identified her educational needs.
Amy had no obvious physical manifestations of her cognitive
disability. But her impairments were severe, and she was
functioning far below her chronological age and appearance.
When Amy entered McKinley High School in 2008, she functioned at
the level of a five-year-old, or even younger. Amy’s disability
was consistently affirmed during multiple cognitive assessments,
including testing that showed an IQ score of 40.
6

-- 6 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
A chronology of relevant events follows.
August 2008: Amy began ninth grade at McKinley. McKinley
received her eighth-grade IEP and was aware she was a
particularly low-functioning special education student who
required monitoring. Amy’s eighth-grade IEP recommended that
she not be placed with general education students, particularly
due to a history of bullying.
Fall 2008: Despite this recommendation, Amy was initially
placed in two pre-algebra classes with significantly higher-
functioning students. The teacher, Mr. Choy (“Choy”),
immediately determined that his class was not suitable for Amy.
Choy was also aware of incidents in which other children in his
class teased Amy.
He also heard that students were talking about Amy
performing oral sex on a higher-functioning boy. The only step
Choy took regarding this was to discuss the allegation with the
boy, who denied it. There is no record of the school
administration or of Mother being informed. Choy did recommend,
however, that Amy be placed in a non-diploma track program that
teaches simple workplace skills such as cooking, how to be on
time, and how to make change. In November 2008, Mother also
requested that Amy be moved into this non-diploma track program.
Despite the recommendation, Amy was kept in her assigned
classes.
7

-- 7 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
February 2009: By February 2009, multiple additional
teachers had become aware that Amy was reportedly giving oral
sex to several different boys. For instance, Ms. Folger
(“Folger”) had heard Amy mentioning that she was giving oral sex
to boys at school. Folger reported this information to Mr.
Greenland (“Greenland”), Amy’s care coordinator, and Maile
French, the Special Education Department Chair.
There is no evidence that this information was further
reported to school administrators or to Mother, or that the
report was investigated.
Also during her freshman year, Amy left campus unnoticed
with a senior and went to Ala Moana Beach Park, where he
apparently raped her orally, vaginally, and anally in a public
bathroom. This incident was not reported or investigated at the
time.
November 2009: When Amy was in tenth grade, Greenland
called Mother and informed her that Amy was performing oral sex
on various boys. But around the same time, Greenland also sent
Mother inappropriate personal text messages, including calling
her “beautiful” and offering to “bring her some soup.” Mother
renewed her request that Amy be transferred to the non-diploma
track program.
Mother began seeing a therapist to get advice on how to
speak with Amy about sex and about what was going on.
8

-- 8 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Spring 2010: In spring 2010, Amy was moved to the non-
diploma track program. She was moved into Mr. Nakagawa’s
(“Nakagawa”) class. Nakagawa also took over as her care
coordinator from Greenland.
In April 2010, various teachers reported to Nakagawa that
Amy “displays inappropriate conduct w/her male peers & this
needs to be addressed.” The report also noted that “she was
also caught in the closet a couple of times w/the same male
peer, after being told not to do so.”
Nakagawa did not act on the report, nor was Mother
notified.
August 2010: In August 2010, another instructor submitted
a report documenting concerns about Amy’s interactions with male
students. The report was provided to Choy, who, in turn,
reported the concerns to Nakagawa. Although Choy understood
that Amy’s cognitive disabilities could be contributing to her
interactions with male peers and recognized that she sought
attention, both Choy and Nakagawa minimized the reported
concerns by characterizing Amy as “boy crazy.”
Mother was not notified of these reported concerns.
Fall 2010: Amy’s Fall 2010 IEP reflected Nakagawa’s concern
that peers might take advantage of Amy. But the record does not
indicate that Nakagawa further reported these concerns, informed
Mother, or that any steps were taken to address them.
9

-- 9 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Mr. Price (“Price”), Amy’s art teacher, was told by two
girls that Amy “performed oral sex on a boy at school.” Price
confirmed that he had previously heard similar rumors about Amy
and sex.
Price did not act upon the information until after the
additional January 2011 incident next described. At that time,
he did not inform Amy’s care coordinator, any school
administrator, or Mother.
January 2011: On January 4, 2011, Amy and a boy both asked
Price if they could go to the bathroom. Price allowed them to
go to the bathroom at the same time. Another student reported
she saw the boy with Amy in the boys’ bathroom. Price took both
Amy and the boy to the office of Vice-Principal Jones (“VP
Jones”).
Although the boy was in the same class as Amy and had a
specific learning disability, he was not severely cognitively
disabled like Amy. Without any investigation, the school
determined that the sexual conduct was consensual. The school
then suspended both Amy and the boy.
Before deciding to suspend Amy, VP Jones did not review
Amy’s IEP or speak with Mother. After deciding to suspend Amy,
VP Jones met with Mother but would not identify the boy
involved. The school did not review Amy’s IEP to determine
whether her cognitive disabilities affected her ability to
10

-- 10 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
consent, nor did it ask whether the boy knew Amy was cognitively
disabled. The incident was not reported to the police.
February 2011: In February 2011, Mother reported to the
school by email that a boy wrote a note to Amy asking her to
meet out of view of the cameras to “hug.” Mother also
discovered that the boy had arranged to have phone sex with Amy.
There is no evidence the school took any action after
receiving this email.
March 2011: Worried about Amy’s safety, Mother had Amy
examined by Dr. Tyson, a licensed psychologist. Dr. Tyson
assessed Amy and wrote a report delivered to the school in March
2011 stating that Amy “should not ever be unsupervised while on
school grounds.”
One-on-one supervision was a fairly standard service for a
student with severe cognitive disabilities. In fact, Nakagawa
had never previously had to recommend one-on-one supervision
because most non-diploma students already had an assigned one-
on-one aide. Yet, Amy was still not assigned a one-on-one aide.
April 2011: Amy started seeing therapist Karlene Perez
(“Perez”). Amy told Perez about the January 4, 2011 incident
and that “she didn’t want to do it and that she was scared.”
Also, another student reported to Choy that Amy touched the
crotch of a male student. Choy spoke with Amy about the
11

-- 11 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
incident. Amy cried and told Choy she was afraid that the boy
would not like her “if she did not do it.”
There is no evidence that Choy reported the incident to
anyone.
Becoming increasingly concerned for Amy’s safety, Mother
again informed the school she urgently believed Amy needed one-
on-one supervision. The record does not reflect that McKinley
ever provided such supervision. A few days later, Mother sent
an email to the school reporting that a boy had stuck a note to
Amy’s back that said “kick me” and that another student hit Amy
hard enough to leave a mark.
There is no evidence that the school acted in response to
these concerns.
On April 15, 2011, a behavioral assessment in school
records concluded that, “whenever unsupervised and a peer asks
[Amy] for something, [Amy] has given in to peer persuasion,
including sex acts, to gain peer attention and friendship.” The
record does not identify who prepared the assessment or explain
the circumstances under which it was conducted. Based on that
assessment, the school created a Behavioral Support Plan
requiring that any future incidents be reported to Mother and
the vice-principal.
May 2011: Mother sent another email to school
administrators reporting that Amy had again been pressured by a
12

-- 12 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
boy who wanted her to go to a specific building to “do bad
things.” Amy reported that the boy said, “come here, suck my d-
-.”
Mother again demanded that the school provide increased
supervision. The school did not do so.
August 2011: Shortly after beginning twelfth grade, after
years of repeated sexual assaults, Amy experienced a
catastrophic psychotic breakdown. Within a week of starting her
senior year at McKinley, she displayed a marked change in
behavior and became increasingly agitated. She reported feeling
“scared” and that “she couldn’t feel her heart.” She had to
come home early from a church event due to this fear. Amy told
a school employee that “everyone was looking at her.” She also
said an adult female neighbor wanted to have sex with her.
Within a few days, Amy was clearly hallucinating and was
not lucid. She was hospitalized on August 8, 2011, and remained
so for three months.
Amy was provided with medication and started to feel safer
by the end of August, when she was able to speak about what was
causing her to feel scared. Amy described repeated sexual abuse
by students at McKinley. She was diagnosed with post-traumatic
stress disorder (“PTSD”) stemming from the sexual abuse.
13

-- 13 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
PTSD is typically treated with cognitive behavioral
therapy. But cognitive behavioral therapy does not work for Amy
due to her cognitive disability.
November 2011: Amy was discharged from the hospital on
November 2, 2011. A typical stay for a child at an inpatient
center is about seven to ten days; Amy’s hospitalization lasted
three months.
Her doctors recommended that she not return to McKinley.
She was then transferred to Variety School.
In 2013, Amy began seeing psychiatrist Angela King, M.D.
(“Dr. King”). Dr. King confirmed that sexual abuse at McKinley
was a cause of Amy’s PTSD, and that Amy could not benefit from
the best available treatment, cognitive behavioral therapy,
because of her cognitive deficits. Dr. King opined that Amy
would need treatment for the rest of her life resulting from the
events at McKinley.
In 2014, Mother also sought treatment from Dr. King. Dr.
King diagnosed Mother with panic disorder and major depressive
disorder, and opined that Amy’s abuse and PTSD were substantial
factors in her diagnosis.
In 2015, Dr. Tyson assessed Amy and concluded that she had
PTSD due to the history of sexual assault and that she should
stay at Variety School because of the close supervision
available.
14

-- 14 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
By the time the circuit court made its findings, Amy was
twenty-seven years old. Her PTSD remained persistent and
untreatable.
B. Circuit Court Proceedings
1. Complaint and Pre-Trial Discovery Issues
On February 14, 2014, Plaintiffs filed their first amended
complaint. Plaintiffs asserted claims against the State arising
from its failure to protect Amy from repeated sexual abuse while
she attended McKinley and sought damages for the severe
physical, psychiatric, psychological, and emotional injuries
that followed.
Before trial, the parties engaged in extensive discovery
concerning Amy’s condition. Issues arose from the State’s
discovery efforts. The circuit court appointed a discovery
master on June 4, 2015.
The State sought to depose Amy, and Plaintiffs moved for a
protective order seeking to prohibit or limit the deposition.
Two psychiatrists and two psychologists provided medical
opinions that Amy was incompetent to testify and that subjecting
her to a deposition “would subject her to a substantial risk of
harm and re-victimization based on her medical history,
hospitalization and diagnosis of PTSD, and her subsequent
treatment.” Some excerpts from these reports are as follows:
Dr. King, Amy’s psychiatrist, reported:
15

-- 15 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Due to these symptoms along with her intellectual
disability it is unlikely that she will ever be able to
benefit from the gold standard of trauma therapy,
specifically Trauma Focused Cognitive Behavioral Therapy,
since it has a higher chance of re-traumatizing her.
Similarly, being placed in any situation that will cause
her to discuss her past trauma experiences, including going
through deposition will likely retrigger her trauma
symptoms and may even lead to re-hospitalization since she
does not have the ability to be able to process the trauma
due to her intellectual disability.
Therefore, it is not medically recommended to place her in
an anxiety inducing setting which could trigger her PTSD
symptoms and risk hospitalization.
Dr. Anthony Urquiza (“Dr. Urquiza”), a psychologist who
specializes in treating victims of sexual molestation, wrote:
It is common for victims of sexual assault to experience
trauma symptoms that are sustained for many years after
their victimization. Thoughts and images of being sexually
victimized can trigger intense and de-stabilizing mental
health symptoms. [Amy] has a multi-year history of serious
mental health symptoms associated with her prior sexual
victimization, has had a prior inpatient psychiatric
hospitalization due to psychotic behavior, and is currently
taking several types of psychiatric medication (i.e., an
antidepressant, an antipsychotic, and medication to
decrease agitation). Asking [Amy] a series of questions
about her prior sexual victimization may trigger thoughts
and feelings that are likely to increase her trauma-based
symptoms. Given the severity of her past symptoms (e.g.,
self-mutilation, severe psychosis, prior inpatient
psychiatric hospitalization), direct questioning of [Amy]
on this topic could result in a resumption of these
problems or other devastating consequences.
. . . .
Given the high potential for a severely negative traumatic
response to being questioned, participating in a deposition
or court proceeding is an unsafe proposal that would
endanger [Amy’s] mental health. The presence of a ‘third
person’ to oversee the experience of [Amy] being a witness
would not decrease the risks associated with responding to
such questions.
After additional briefing and a hearing on January 19,
2016, the circuit court denied Plaintiffs’ request for a blanket
prohibition on Amy’s deposition, indicating that the State had a
16

-- 16 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
legitimate interest in preparing for trial. But the circuit
court found good cause to impose protective measures to
“minimize any anxiety-inducing situation and to protect [Amy]
from emotional distress or risk of harm to her psychological
well-being.” The circuit court also reserved deciding on Amy’s
competency to testify, ruling that questions regarding whether
the deposition testimony would be admissible at trial would not
preclude the State from taking Amy’s deposition.
The circuit court (1) ordered that Amy’s deposition occur
at the Children’s Justice Center or another child-friendly
location, (2) limited questioning to ninety-minute sessions and
seven hours total, (3) required the discovery master to observe
the deposition through a one-way mirror, with authority to
recess or terminate the deposition if Amy became distressed, (4)
permitted Amy's therapist to monitor the proceedings, and (5)
authorized the discovery master to implement any additional
protective measures deemed necessary.
Amy’s first ninety-minute deposition session took place on
March 31, 2016. Amy’s treating psychiatrist, Dr. King, attended
the deposition, during which Amy exhibited significant anxiety.
After examining Amy, Dr. King concluded that the deposition had
caused substantial emotional deterioration and that no
additional deposition could be conducted safely because Amy’s
17

-- 17 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
chronic PTSD and intellectual disability prevented meaningful
recovery. Dr. King explained:
My significant concern is that [Amy] reported being scared,
worried and uncomfortable and the bulk of the most
difficult and serious material, including [Amy]’s
victimization, is likely to be raised in the next session.
My clinical impression is that [Amy]’s fear combined with
any questions about sexual victimization together with her
preoccupation that [the attorney conducting the deposition
questioning] knows where she lives will trigger her complex
PTSD and a resumption of her psychotic symptoms, requiring
hospitalization.
She also stated in an additional declaration that:
As provided in the treatment records and as I testified at
my deposition, multiple attempts have been made to treat
[Amy] with the PTSD specific intervention of trauma-focused
cognitive behavior therapies. These attempts have not been
successful because [Amy] lacks the intellectual capacity to
retain and maintain the necessary coping strategies that
must be in place to engage in and receive the benefit of
this therapy.
In a third declaration, she wrote:
I opined that there is no set amount of time when it may be
safe to put [Amy] through a deposition since chronic PTSD
can be a lifelong condition and because of [her]
intellectual disability she is unable to benefit from
treatment. When we discussed the harms outweighing the
benefits, I identified the harms of a deposition as the
risk of re-hospitalization and the likelihood of her
becoming acutely unstable again. I identified the benefits
as her testimony and since that may not be reliable or
accurate because of her intellectual disability, then the
benefits do not outweigh the harms.
Dr. Urquiza also reviewed the video recording of Amy’s
deposition and observed symptoms consistent with her PTSD
diagnosis, including anxiety, hypervigilance, and avoidance.
Dr. Urquiza warned that requiring Amy to confront the
circumstances of her trauma through further deposition
questioning would likely retraumatize her. Dr. Urquiza wrote:
18

-- 18 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
I understand that in the next session of [Amy]’s
deposition, she will be confronted with facts surrounding
her trauma and prior-victimization. It is medically
contraindicated to confront [Amy] with such questions in a
deposition setting because forcing [Amy] to do so will
likely result in re-traumatizing her resulting in more
severe symptoms than she exhibited during and after the
first session of her deposition. As I indicated in my
report dated July 17, 2015, it was reasonably expected
[Amy] might persist in a deposition even though distressed
and have a delayed negative response to the deposition. The
reports of Dr. Angela King subsequent to the first session
of [Amy]’s deposition, demonstrating that presented with
evidence of anxiety and paranoia is consistent with my
expressed concerns.
The first deposition also illustrated concerns regarding
the reliability of Amy’s testimony. During the session, Amy
gave inaccurate responses regarding basic aspects of her
personal history, including testifying (1) that she rode a
Roberts Hawaiʻi school bus during her freshman year, even though
that did not happen until she began attending Variety School,
and (2) that she owned a “German Shepherd,” despite not having
one. Plaintiffs argued that these examples demonstrated Amy’s
confusion regarding time periods and susceptibility to leading
questions, concerns that were echoed by multiple medical
professionals. For example, Dr. Urquiza wrote:
I observed in the video that [Amy] exhibited symptoms
consistent with her PTSD diagnosis, including anxiety,
hyper-vigilance, reassurance from adults and avoidance. I
observed that the questioning of [Amy] was not designed to
ensure that she understood the questions that she was
answering and, in fact, demonstrated how suggestible she
was based on the leading manner in which she was asked
questions. An example of such testimony was with respect to
whether she understood the difference between fiction and
non-fiction. All of this evidences the fact that she is not
competent to testify at a deposition or trial.
19

-- 19 of 77 --

. . . .
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Based on these concerns, Plaintiffs again moved to
terminate Amy’s deposition. After considering the discovery
master’s report and medical evidence, the circuit court found
Amy competent to testify and ordered that her remaining
deposition sessions proceed under the existing protective order
conditions.
On September 29, 2016, Amy participated in a second ninety-
minute deposition. During that session, questioning focused
extensively on the sexual abuse Amy experienced while a student
at McKinley.
After the second deposition, Amy’s condition deteriorated
significantly. Dr. King reported that Amy exhibited increased
fear, anxiety, depression, nervousness, tearfulness, and
sleeplessness. Dr. King wrote:
During the September 29, 2016 deposition session, [Amy] was
asked numerous questions regarding her sexual assaults
including her rape by [a student]. [Amy] exhibited symptoms
of distress. This became particularly evident to me during
a break at the 1-hour mark of the deposition when I had an
opportunity to personally observe [Amy] in an adjoining
conference room. At that time, [Amy] was crying and
anxious[.]
After the session held on September 29, 2016, I saw [Amy]
in my office on an emergent basis the following day. [Amy]
presented with heightened anxiety, fear, inability to
sleep, and tearfulness.
I saw [Amy] again in my office on October 5, 2016. I
observed that [Amy]’s condition had worsened . . . While
alone in my office, she cried, appeared fearful and
reported being scared. She is afraid of being alone and has
been experiencing more anxiety attacks. She has been fairly
stable up to this point during our sessions, but I have
definitely seen an increase in symptoms, including
20

-- 20 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
depression, fear, and anxiety since she went through the
most recent deposition. She is being asked questions that
are traumatic in nature and ordinarily in therapy, these
questions would not be asked when the patient is not able
to apply relaxation skills. They are also not asked when
the patient is unable to safely process past trauma as
[Amy]'s current symptoms demonstrate. Forcibly asking these
questions can lead to further trauma, increasing symptoms,
and possible re-hospitalization. It is my firm opinion that
[Amy]’s increased symptomology is a result of her
experience at her depositions recounting the trauma that
she experienced at school.
It continues to be my clinical opinion that the deposition
of [Amy] [is] harmful and should be terminated. This
opinion is reinforced by my witnessing [Amy] exhibiting
distress and harm during the deposition sessions and the
increased symptoms and instability she is exhibiting in
their aftermath.
Dr. King increased Amy’s psychiatric medication to address
her worsening symptoms and to minimize the risk of another
psychotic episode. When Dr. King examined Amy again on October
5, 2016, she remained fearful, cried throughout the visit, and
appeared to be in worse condition, despite the increased
medication.
Dr. Urquiza also submitted a supplemental declaration
noting that “there is significant concern about [Amy]’s current
level of distress, and risk of additional harm.” He stated:
It should be clear that [Amy] has been harmed by her
involvement in her second deposition session and continued
involvement in the third portion of her deposition will
likely result in additional harm.
Dr. Barry Carlton, one of Amy’s treating psychiatrists,
likewise stated:
[C]onsidering the severity of the symptoms which the
patient presented, as well as the severity of her cognitive
impairment, and the incomplete nature of her treatment, if
she were to attempt to re-create what happened in an
unprotected, deposition environment, it would pose a risk
21

-- 21 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of exacerbation of symptoms, return of anxiety, and an
increase in anxiety from which it might prove to be
difficult for the patient to recover.
Her treating therapist, Perez, also reported that Amy’s
presentation and “intense fear” were “very similar” to what she
had observed immediately before Amy’s psychotic break in 2011.
Despite these reports, the discovery master recommended
denying Plaintiffs’ motion to terminate Amy’s deposition and
permitting the deposition to continue under the imposed
protections. Plaintiffs appealed this discovery master order to
the circuit court. After hearings, the circuit court denied
Plaintiffs’ appeal and ordered “the third deposition session of
[Amy]” to proceed.
The State agreed, however, that Amy’s deposition should be
postponed. On March 6, 2017, the State moved to continue the
trial, acknowledging that Amy should not undergo a further
deposition while her condition remained unstable. The State
indicated that “[a] fair trial requires that the Defendants
finish [Amy]’s deposition only when [Amy] is emotionally well”
and requested that trial be reset once [Amy] was “stable enough
to present reliable testimony.” The State later clarified that
it would consider Amy “stable” only when her medication had been
reduced and her symptoms had returned to the level they were at
before the September 29, 2016 deposition.
22

-- 22 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The State’s retained expert, Dr. Tanya D’Avanzo (“Dr.
D’Avanzo”), similarly recommended suspending Amy’s scheduled
HRCP Rule 35 examination after learning of her condition after
the deposition. The State reported as follows to the circuit
court:
Appraised of [Amy]’s condition as reported recently by Mr.
Ferrer, Dr. D’Avanzo recommended and the State by
this communication suspends the [examination] of [Amy]
scheduled for February 17, 2017. In Dr. D'Avanzo’s opinion,
the medication taken by [Amy], now at twice the dosage as
when [Amy] was observed in September of 2016, can have a
sedating effect on any patient and which effect could
impair [Amy]’s clarity during the interview portion of Dr.
D’Avanzo’s assessment. Because the State also noticed the
deposition of [Mother] for February 22, 2017 to follow the
last examination session with [Amy], the State will suspend
the deposition of [Mother] to a date which follows the
final deposition session of [Amy].
The State’s motion to continue was granted.
The circuit court then granted Plaintiffs’ request for a
limited HRCP Rule 35 examination for the sole purpose of
determining whether Amy could safely undergo any further
deposition questioning and, if not, when the issue should be
revisited. The court appointed Dr. Barbara Higa-Rogers (“Dr.
Higa-Rogers”) as its neutral expert psychologist. After
reviewing Amy’s medical records, observing the videotaped
deposition sessions, and conducting her own clinical evaluation,
Dr. Higa-Rogers issued her report on December 13, 2018. She
opined against allowing any further depositions of Amy:
[I]t is my professional opinion, the potential benefits of
[Amy] testifying for a two hour period or less, do not
outweigh the risk to her emotional state, and is therefore
not supported.
23

-- 23 of 77 --

. . . .
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Given the severity of [Amy]’s intellectual disability,
which is pervasive in nature, there is no expected
improvement expected in her ability to comprehend the legal
process or be able to engage in gold standards of treatment
to assist her in navigating her prior experiences.
Therefore, change is unlikely. As noted, [Amy] also has
significant trauma related sequalae and the prior
depositions lead to an increase in her symptoms and
required an increase in her medications to address her
nightmares, startle response and fears of seeing the
state’s attorney. The benefits of pursuing a third
deposition do not outweigh the potential risks to [Amy]’s
mental health, limited coping and is unlikely to yield any
significant additional information now or in the
foreseeable future.
Dr. Higa-Rogers further opined that, if the circuit court
nevertheless required additional questioning, protective
measures should be implemented to reduce the risk of harm,
including allowing Amy to control breaks, imposing strict time
limits, permitting questioning through her treating providers
where possible, limiting repetitive questioning, and allowing
counsel to observe from a separate room.
After Dr. Higa-Rogers’ report, Plaintiffs again moved for a
protective order terminating any further deposition testimony.
The circuit court denied the motion without prejudice but
ordered that no further deposition of Amy could occur without
prior court approval.
More than a year later, the State moved to resume Amy’s
deposition and separately moved for a HRCP Rule 35 examination.
As to the deposition, the State argued that (1) additional
testimony was necessary to satisfy pretrial deadlines, (2) Amy
24

-- 24 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
had received sufficient therapy since her prior deposition, (3)
questioning would be limited to events occurring after July
2011, and (4) further discovery was necessary to develop its
alternative causation defense.
As to the proposed HRCP Rule 35 examination, the State
sought an eight-hour examination consisting of four hours of
interviews and four hours of testing. The State asserted that
good cause existed for the examination because the causes of
Amy’s August 2011 psychotic break had “never been fully
established or evaluated.”
Plaintiffs opposed both motions, relying on updated
opinions from Amy’s treating providers that her condition
remained substantially unchanged and that additional questioning
or examination continued to pose a significant risk of
psychological harm. Dr. King reported that Amy continued to
suffer from PTSD symptoms, including nightmares, anxiety, fear,
hypervigilance, and the risk of potential psychosis. She agreed
with Dr. Higa-Rogers’ earlier opinion that additional
questioning would likely retraumatize Amy without providing
meaningful benefit.
After a hearing on March 10, 2020, the circuit court denied
without prejudice the State’s motion to resume Amy’s deposition,
explaining that it was “very concerned about ordering something
25

-- 25 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
that could cause this young woman further harm” but said it was
“not saying she can never be deposed.”
With respect to the proposed HRCP Rule 35 examination, the
court declined to rule pending a further assessment from its
neutral expert, Dr. Higa-Rogers. The court expressed concerns
regarding the potential adversarial nature of HRCP Rule 35
examinations and sought assurances that any examiner would
exercise independent medical judgment rather than conduct a
purely forensic examination. The circuit court explained that
it would consider allowing a HRCP Rule 35 examination if it
could be conducted safely. The circuit court requested further
information concerning the proposed examination, including Dr.
D’Avanzo’s medical judgment regarding its safety.
Dr. Higa-Rogers issued her supplemental report on July 15,
2020. She opined:
As previously noted in my December 2018 report, given the
severity [Amy]’s intellectual disability, which is
pervasive in nature, she is not expected to show
significant improvements in her ability to comprehend the
legal process or complex questions, and is more likely to
agree when a yes/no question is asked of her and to assent
when a suggestion is made to her. Furthermore, there is
documentation that following prior depositions [Amy]
experienced an increase in her symptoms and required an
increase in her medications to address her nightmares,
startle response and fears. The benefits of pursuing
further questioning/testing do not appear to outweigh the
potential risks to [Amy]’s mental health, limited coping,
and is unlikely to yield significant additional
information.
26

-- 26 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Dr. Higa-Rogers opined that if the court nevertheless ordered an
examination, protective measures should be implemented to reduce
the risk of harm.
On August 20, 2020, the circuit court denied the State’s
motion for a HRCP Rule 35 examination, concluding that the
proposed examination presented a significant risk to Amy’s
mental health. The State then sought another trial continuance,
arguing that it lacked essential discovery because it had been
unable to complete Amy’s deposition or conduct a HRCP Rule 35
examination. The circuit court continued the trial and reset it
for March 1, 2021. The State’s deposition of Amy was never
resumed, and the case proceeded to trial.
2. The State’s Pre-Trial References to Apportionment
Before trial, the State made several brief and nonspecific
references to apportionment.
The fifteenth defense in the State’s answer to the first
amended complaint says: “The liability, if any, of the DOE,
Nakagawa and Jones, any of them or collectively, is limited
under HRS §663-10.5.”
The State’s cross-claim against a previous co-defendant
similarly stated, without further elaboration, that
“[a]pportionment of fault is determined pursuant to Section 663-
10.5 of the Hawai‘i Revised Statutes.” Neither filing identified
the male students, characterized them as “other tortfeasors,” or
27

-- 27 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
indicated that the State sought to reduce Plaintiffs’ recovery
by allocating fault to the students. The State also did not
implead any of the male students.
The State later referenced HRS § 663-10.5 in a pre-trial
motion to continue trial. The State argued it was “not jointly
and severally liable with the person(s) responsible” for events
surrounding Amy’s 2011 psychotic break and quoted HRS § 663-
10.5. The State asserted that the boys did not cause Amy’s
psychotic break in August 2011, but instead suggested that
something happened at home that had caused the psychotic break.
3. Trial
The case proceeded to a bench trial over the course of
sixty-six days in March through September 2021. The court
identified the principal issues as (1) whether Amy had the
cognitive ability to consent to sex; (2) whether the State
breached duties owed to Amy and Mother while Amy was a special
education student at McKinley; (3) whether the State’s acts and
omissions were a substantial factor in causing harm to
Plaintiffs; (4) what harms were proximately caused by the
State’s conduct; and (5) damages.
The court heard testimony from more than thirty witnesses
and received numerous documents and photographs in evidence.
Although liability and damages were heavily contested at
trial, the State's closing argument consistently maintained that
28

-- 28 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the boys were not responsible for Amy's injuries. Throughout
closing argument, the State maintained that the alleged assaults
by the boys either were not proven to have occurred, were
consensual, or otherwise could not be attributed to any
negligence by the DOE.
For instance, with respect to the alleged Ala Moana
incident, the State argued that the evidence did not support
Plaintiffs’ account that Amy left school to go to Ala Moana and
that, even if an incident occurred there, it could not be
attributed to any negligence by the DOE.
Likewise, with respect to the January 4, 2011 incident, the
State argued that the evidence established a consensual
encounter.
The State further argued that Plaintiffs failed to prove
that any additional sexual assaults occurring at school caused
Amy's injuries.
Consistent with these positions and the State’s trial
strategy, the State’s discussion of responsibility for Amy’s
injuries focused on two theories, neither of which sought to
allocate fault to the boys.
First, the State argued that Plaintiffs had overlooked
other events unrelated to the DOE, including Amy’s statements
regarding a “neighbor lady” and her belief that Mother was her
29

-- 29 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
“lesbian lover,” as alternative explanations for Amy’s mental
health crisis.
Second, with respect to HRS § 663-10.5, the State argued
that any reduction in the DOE's liability should be based on
Mother's role in failing to disclose information to the school.
The State argued:
8 Also, plaintiff did not address Hawai‘i
9 Revised Statute 663-10.5 which unequivocally states
10 that the State can only be responsible for its share of
11 damages.
12 Now, again, it gets into this area of [Mother’s]
13 role. Now, [Mother] had no duty. The DOE -- or no duty
14 under the IDEA, and the Department of Education has no
15 counterclaim against [Mother] for negligence. But she
had
16 a role in what happened to [Amy]. That is undeniable.
17 She had information that for whatever reason, whether
18 it was shame or a personality disorder as described by
19 Dr. D'Avanzo, she didn't -- she chose not to share this
20 information. And even absent a duty, this decision
21 impacted the DOE’s ability to reasonably develop an IEP
22 plan.
23 And whatever damages may exist, which in this
24 case, obviously the State feels there's no duty,
25 breach, or causation, or these damages, but even if the
1 court were to disagree, the State can only be
2 responsible for that portion of its damages, or of the
3 total damages, and plaintiff did not address that.
After trial, the parties submitted proposed findings of
fact and conclusions of law. In two paragraphs of its 127-page
submission, the State proposed the following conclusions of law:
74. The State of Hawai[‘]i, as a government entity, is
liable for no more than the percentage share of damages
attributable to the government entity. HRS § 663-10.5
75. Even assuming, without finding, that Plaintiff had
established any damages to a reasonable degree of
certainty, Plaintiff would still not be entitled to recover
the vast majority of those damages from the State. The
State of Hawai[‘]i, as a government entity, is liable for no
more than the percentage share of damages attributable to
the government entity. Hawai[‘]i Revised Statutes § 663-
10.5.
30

-- 30 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The State then made clear that its reference to HRS § 663-
10.5 was to request an apportionment of liability aimed at
Mother, not the male students. In its proposed conclusion of
law 76, the State argued that “the primary reason that allowed
those alleged events to happen was [Mother’s] willful non-
disclosure of information that was necessary for the DOE to form
[sic] provide more appropriate educational and behavioral
supports.”
Thus, the State never requested that the male students be
determined to be “other tortfeasors” to whom liability should be
apportioned under HRS § 663-10.5.
The court then resolved each liability issue in Plaintiffs’
favor. It found that Amy lacked the cognitive ability to
consent to sex, the State breached its duties, and the State’s
conduct was a substantial factor in causing multiple sexual
assaults, mental illness, and emotional distress.
In reaching those findings, the court credited the
testimony of Amy’s treating and retained experts. It rejected
opinions of the State’s expert, Dr. D’Avanzo, as not reliable
and not adequately supported by the record. The circuit court
noted that the relationship between cognitive disability and
sexual victimization was core to this case but that Dr. D’Avanzo
rarely treated children and could not recall having a single
child patient who was cognitively disabled.
31

-- 31 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The circuit court also heard extensive evidence concerning
Plaintiffs’ damages. The court credited the testimony of
Plaintiffs’ treating and retained experts and found that Amy
suffered chronic PTSD, obsessive behaviors, psychotic episodes,
and an increased risk of future psychosis requiring lifelong
psychiatric treatment, monitoring, medication, periodic
hospitalization, and one-on-one supervision. Amy’s life-care
plan reflected costs that medical experts opined were
reasonable, necessary, and caused by the sexual assaults and
PTSD. The court further found that Mother suffered major
depressive and panic disorders as a result of the harm to Amy.
In assessing Amy’s general damages, the court acknowledged
that “[i]t is more than difficult to place a monetary value on
sexual assault of an impaired child,” but explained that it had
made a “serious effort to balance all the issues” in determining
reasonable compensation. In assessing Mother’s general damages,
the court similarly observed that, “[g]iven what happened to
[Amy], the court cannot think of anything more distressing to a
parent generally or [Mother] in particular, short of a child’s
death.”
Based on these findings, the circuit court awarded
Plaintiffs a total of $14,167,354.81 in damages: $190,986.78 in
past medical expenses, $7.87 million in future care, and $4
million in general damages to Amy; and $26,368.03 in past
32

-- 32 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
medical expenses, $80,000.00 in future medical expenses, and $2
million in general damages to Mother.
Then, the court sua sponte addressed apportionment of
liability to the male students. It noted HRS § 663-10.5 says
“where a government entity is determined to be a tortfeasor
along with one or more other tortfeasors, the government entity
shall be liable for no more than that percentage share of the
damages attributable to the government entity[.] The circuit
court said that, here, the “one or more other tortfeasors”
“would be the boys who engaged in sex with [Amy].”
The circuit court noted that the statute had been “briefly
mentioned” in the State’s proposed conclusions and that
Plaintiffs “did not cover the issue in any depth, if at all.”
But it indicated its belief that because the State had raised
the issue, it had to be addressed.
The circuit court said that the interplay between Hawaiʻi
case law, some of which is discussed below, and the statute was
not easy and straightforward under the circumstances of this
case.
The circuit court then determined that the State should be
held liable for only 70% of the damages. It ruled that HRS §
663-10.5 did not require it to assign specific percentages of
liability between various actors, but that it could assign 30%
to all the boys who sexually abused Amy.
33

-- 33 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The circuit court also determined, however, that there was
little to no evidence the boys involved knew any particulars
about Amy’s cognitive disabilities, and that with the possible
exception of the boy who assaulted Amy at Ala Moana, to the
boys, Amy was likely a peer special education student. The
court also specifically found that there was little to no
evidence the boys were aware or should have been aware that Amy
lacked ability to consent to sex.
But the circuit court concluded that “all persons who
abused [Amy] sexually during the relevant time period”
constituted “other tortfeasors” under HRS § 663-10.5 and
collectively allocated 30% of the fault to them and 70% to the
State.
The court then reduced Plaintiffs’ $14,167,354.81 damages
award by 30%, or $4,250,206.44, and entered judgment against the
State for $9,917,148.37.
4. Post-Judgment Proceedings
Plaintiffs then filed an HRCP Rule 59(e) motion to amend
the judgment, challenging the circuit court’s apportionment of
30% of the fault to the unidentified persons who sexually abused
Amy. Plaintiffs argued that this apportionment is an
affirmative defense, that the State had never provided notice
that it intended to seek apportionment based on the conduct of
the male students, and that it had not presented or litigated
34

-- 34 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
such an apportionment claim at trial. Plaintiffs further
contended that the court’s post-trial allocation of fault
deprived them of a meaningful opportunity to address whether
there “should be any apportionment at all” or the “proper
percentage of culpability between tortfeasors.”
In opposition, the State disputed that apportionment under
HRS § 663-10.5 is an affirmative defense. The State argued that
the statute “operates not as an affirmative defense but rather a
limitation on the liability of governmental entities as a
tortfeasor” and asserted that governmental entities “cannot be
held liable for more than [their] fair share of damages.” The
State also argued that HRS § 663-10.5 does not require it to
file claims against other tortfeasors for an apportionment of
liability to occur.
Plaintiffs filed a reply with no new arguments. The
circuit court denied the motion to amend.
C. Appeals and Transfer
Plaintiffs filed a notice of appeal, and the State filed a
notice of cross-appeal. This court then granted Plaintiffs’
application for transfer and entered a notice of no oral
argument.
D. Questions on Appeal
1. Plaintiffs’ Appeal
Plaintiffs raise four points of error on appeal:
35

-- 35 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
1. The Court Erred by Apportioning Damages to Alleged
Tortfeasors Not Identified by the State, Violating
Plaintiffs' Due Process Rights.
2. The Court Erred in Determining that the Male Students
Were Tortfeasors as There Was Insufficient Evidence in the
Record of Their Tortfeasor Status or Degree of Fault.
3. The Court Erroneously Shifted the Burden of Proof on
Apportionment from the State to the Plaintiffs.
4. The Court Erred in Denying Plaintiffs' Motion to Amend
the Judgment to Reverse its Apportionment Decision.
2. The State’s Cross-Appeal
The State raises three points of error on cross-appeal:
1. The trial court abused its discretion by denying the
State’s request to conduct a Rule 35 examination of [Amy]
2. The trial court abused its discretion by precluding the
State from completing [Amy]’s deposition.
3. The trial court’s damages award was grossly excessive.
For the reasons discussed below, we agree with Plaintiffs’
points of error and disagree with the State’s points of error.
III. Standards of Review
A. Findings of Fact
HRCP Rule 52(a) provides that, in a bench trial,
“[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge of the credibility of the witnesses.”
HRCP Rule 52(a). A finding of fact is clearly erroneous when
“(1) the record lacks substantial evidence to support the
finding, or (2) despite substantial evidence in support of the
finding, the appellate court is nonetheless left with a definite
and firm conviction that a mistake has been made.” Klink v.
36

-- 36 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
State, 113 Hawai‘i 332, 351, 152 P.3d 504, 523 (2007).
“‘Substantial evidence’ . . . is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion.” Id. (cleaned up).
B. Conclusions of Law
“This court ‘may freely review conclusions of law and the
applicable standard of review is the right/wrong test.’” State
v. Levi, 102 Hawai‘i 282, 285, 75 P.3d 1173, 1176 (2003). As
such, a conclusion of law is not binding upon an appellate court
and such findings can be “freely review[ed]” for its
correctness. Dan v. State, 76 Hawaiʻi 423, 425, 879 P.2d 528,
530 (1994). Questions of statutory interpretation and
constitutional law are likewise questions of law reviewed de
novo. Levi, 102 Hawai‘i at 285, 75 P.3d at 1176.
C. Statutory Interpretation
“The fundamental starting point for statutory
interpretation is the language of the statute itself.” Peterson
v. Haw. Elec. Light Co., 85 Hawai‘i 322, 327, 944 P.2d 1265, 1270
(1997), superseded on other grounds by HRS § 269-15.5 (Supp.
1999) (cleaned up). “[W]here the statutory language is plain
and unambiguous, the court’s sole duty is to give effect to its
plain and obvious meaning.” Id. (cleaned up). “[I]mplicit in
the task of statutory construction is the court’s foremost
obligation to ascertain and give effect to the intention of the
37

-- 37 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
legislature, which is to be obtained primarily from the language
contained in the statute itself.” Id. (citation omitted).
“[W]hen there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists.” 85 Hawai‘i 322 at 327-28, 944
P.2d at 1270-71 (cleaned up).
When a statute is ambiguous, “the meaning of the ambiguous
words may be sought by examining the context, with which the
ambiguous words, phrases, and sentences may be compared, in
order to ascertain their true meaning.” Citizens Against
Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawai‘i 184, 194, 159
P.3d 143, 153 (2007) (quoting HRS § 1-15(1) (1993)). Courts may
also “resort to extrinsic aids in determining legislative
intent, such as legislative history, or the reason and spirit of
the law.” Id.
D. Discovery Rulings
The extent to which discovery is permitted under Rule 26
(as well as under Rules 33 and 34) is subject to considerable
latitude and discretion. Appeal of Goodfader, 45 Haw. 317, 335,
367 P.2d 472, 483 (1961). Accordingly, “the trial court may not
be reversed by an appellate court unless the trial court has
clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant.” Kealoha v. Cnty. of Haw., 74 Haw. 308, 318,
38

-- 38 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
844 P.2d 670, 675 (1993) (cleaned up). Under that standard,
different trial judges may, on the same facts, arrive at
opposite rulings “without any of them being reversible on
appeal.” State v. Rabe, 5 Haw. App. 251, 260-61, 687 P.2d 554,
561 (App. 1984).
To the extent this issue requires review of the circuit
court’s factual findings regarding Plaintiffs’ medical condition
and ability to participate in discovery, those findings are
“reviewed on appeal under the clearly erroneous standard.”
Birano v. State, 143 Hawai‘i 163, 181, 426 P.3d 387, 405 (2018)
(cleaned up).
E. Damages Awards
Hawai‘i law has long recognized that the assessment of
damages lies primarily within the province of the factfinder,
and appellate review is correspondingly limited. See Kang v.
Harrington, 59 Haw. 652, 663, 587 P.2d 285, 292 (1978). Most
recently, this court reaffirmed these longstanding principles in
Kekona v. Bornemann and explained:
On appeal, the courts analyze whether the damages awarded
by the jury were palpably not supported by the evidence, or
so excessive and outrageous when considered with the
circumstances of the case as to demonstrate that the jury
in assessing damages acted against rules of law or suffered
their passions or prejudices to mislead them.
135 Hawaiʻi 254, 257, 349 P.3d 361, 364 (2015).
This court has further explained that “[a] similar test is
used in a jury-waived case,” where “the inquiry on review is
39

-- 39 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
limited to whether, ‘upon the evidence adduced, reasonable
[people] could have come to the same conclusion as the jury, or
the trial court in a jury-waived case.’” Kang, 59 Haw. at 663,
587 P.2d at 292 (cleaned up).
IV. Discussion
A. Plaintiffs’ Appeal
1. The circuit court erred by apportioning liability to
tortfeasors not identified or pursued by the State and
violated Plaintiffs’ due process rights.
In their first point of error on appeal, Plaintiffs allege
that the circuit court erred by apportioning damages to alleged
tortfeasors not identified by the state, violating their due
process rights. For the reasons that follow, we agree.
a. Hawai‘i law generally only permits apportionment
of liability to nonparties in limited
circumstances.
Here, the circuit court apportioned 30% of the fault to the
male students who abused Amy. The male students were never
named as parties.
Preliminarily, the State argues that this court “expressly
held in Cummings v. State that the plain language of HRS § 663-
10.5 does not require the State to file a claim against [another
tortfeasor] to have liability apportioned to them[,]” citing to
a December 29, 2006 summary disposition order of this court.
Cummings v. State, No. 26975, 2006 WL 3834309 (SDO) (Haw. Dec.
29, 2006). But Hawaiʻi Rules of Appellate Procedure (“HRAP”),
40

-- 40 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Rule 35(c)(1) explicitly provides that, unless certain
exceptions apply, “[a] memorandum opinion or unpublished
dispositional order filed before July 1, 2008 shall not be cited
in any other action or proceeding[.]” The exceptions in HRCP
Rule 35(c)(1) are not applicable here, and thus, the State
improperly cites to an uncitable unpublished dispositional
order. We assume this was an unintentional error but note that
it is highly improper to cite uncitable dispositions.
Turning to governing law, HRS § 663-10.5 was enacted to
prevent government entities from being held jointly and
severally liable for damages disproportionate to their
responsibility. See Conf. Comm. Rep. No. 48, in 1994 House
Journal, at 803; Conf. Comm. Rep. No. 48, in 1994 Senate
Journal, at 718 (“The government entity shall be liable for no
more than that percentage share of the damages attributable to
the government entity.”). The conference committee further
explained that the measure was necessary to promote “fairness
and equity for government entities” that, because of their
perceived “deep pockets,” might otherwise be required to pay
more than their fair share when determined to be joint
tortfeasors. Id.
HRS § 663-10.5 provides, in relevant part, that it is only
if “a government entity is determined to be a tortfeasor along
with one or more ‘other tortfeasors’,” then “the government
41

-- 41 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
entity shall be liable for no more than that percentage share of
the damages attributable to [it][.]” The circuit court
determined sua sponte that the male students were such “other
tortfeasors.”
With respect to whether the male students are “other
tortfeasors” under HRS § 663-10.5, Black’s Law Dictionary (12th
Ed. 2024) defines “tortfeasor” as “[s]omeone who commits a tort;
a wrongdoer.” Tortfeasor, Black’s Law Dictionary (12th Ed.
2024). It further generally defines “tort” as “[a] civil wrong;
other than breach of contract, for which a remedy may be
obtained, usu. in the form of damages; a breach of a duty that
the law imposes on persons who stand in a particular relation to
one another.” Tort, Black’s Law Dictionary (12th Ed. 2024).
If they breached a duty to Amy, the male students would
seemingly qualify as “other tortfeasors.” But, as argued by the
Plaintiffs, here, the circuit court determined them to be “other
tortfeasors” without any notice to them or to the Plaintiffs.
We therefore address whether this was permissible.
We note that cases construing contribution among joint
tortfeasors under the Uniform Contribution Among Tortfeasors
Act, codified at HRS §§ 663-11 through – 17 (“UCATA”), do not
control this analysis. HRS § 663-10.5 explicitly provides that
the statute controls notwithstanding any other law to the
42

-- 42 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
contrary, including UCATA. But UCATA cases can still provide
some guidance.
Gump v. Wal-Mart Stores, Inc., 93 Hawai‘i 417, 5 P.3d 407
(2000), addressed whether an identified nonparty joint
tortfeasor can be included on a special verdict form. There,
the plaintiff sued both Wal-Mart and McDonald's after slipping
on a French fry inside a Wal-Mart store, but later settled with
and dismissed McDonald's. 93 Hawaiʻi at 419, 5 P.3d at 409.
Wal-Mart did not file a cross-claim against McDonald's but
sought to have McDonald's included on the special verdict form.
Id. This court held that non-parties may be considered joint
tortfeasors under UCATA. Id. This court further held that
nonparties may, “in the trial court’s sound discretion,” be
included on a special verdict form “under appropriate
circumstances.” Id.
But this court concluded that it was inappropriate to
include McDonald’s on the special verdict form under the
circumstances of that case. 93 Hawai‘i at 423, 5 P.3d at 413.
This court noted that Wal-Mart chose not to file a cross-claim
against McDonald’s. Id. Although this court acknowledged that
“there are tactical reasons to choose not to file a cross-
claim,” it explained that “one of the risks that accompanies
such a decision is the risk that McDonald’s would settle, which
could prevent Wal-Mart from establishing the pro rata share of
43

-- 43 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
fault between the two.” Id. This concern is not at issue here
because HRS § 663-10.5 does not allow joint liability against
governmental entities. But this court did note the relevance of
Wal-Mart’s decision not to file a cross-claim against
McDonald’s.
Then in Moyle v. Y & Y Hyup Shin Corp., 118 Hawai‘i 385, 191
P.3d 1062 (2008), this court clarified Gump’s statement that a
trial court has “sound discretion” to include a nonparty on a
special verdict form under “appropriate circumstances.” 118
Hawai‘i at 397-98, 191 P.3d at 1074-75. In Moyle, the defendants
sought to allocate fault to an identified nonparty who had
assaulted the plaintiff. 118 Hawaiʻi at 390, 191 P.3d at 1067.
Four months before trial, the defendants moved to implead the
nonparty, but the circuit court denied the motion as untimely.
118 Hawaiʻi at 399, 191 P.3d at 1076. Nevertheless, the circuit
court included the nonparty on the special verdict form, and the
jury allocated 95% of the fault to him. 118 Hawaiʻi at 390, 191
P.3d at 1067.
This court clarified that Gump did not create unfettered
discretion to place nonparties on a special verdict form.
Moyle, 118 Hawaiʻi at 398, 191 P.3d at 1075. Rather, this court
indicated that Gump’s reference to “appropriate circumstances”
under which nonparties could be included on special verdict
forms was limited to narrow situations such as where a nonparty
44

-- 44 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
was, “(1) dismissed because their participation would destroy
jurisdiction, (2) not named because of a bankruptcy stay that
was effective throughout the course of the proceedings, or (3)
released from the case through settlement, but included on the
special verdict pursuant to terms of the release.” Moyle, 118
Hawaiʻi at 398, 191 P.3d at 1075 (citations omitted).
Moyle explained:
Although a trial court has “discretion” to include, or to
decline to include, a non-party on a special verdict form,
it does not, as a matter of law, have the authority to
include a non-party who has not been brought into the case
by pleading pursuant to HRS §§ 663-12 and 663-17(c).
118 Hawaiʻi at 398, 191 P.3d at 1075.
Further, this court said that “exclusion is mandated when a
party fails to protect its rights.” Id. Because the defendants
waited until four months before trial to seek to implead the
nonparty, the nonparty “could not have been included on the
special verdict form as a matter of law.” 118 Hawaiʻi at 399,
191 P.3d at 1076. This court emphasized that the discretion
recognized in Gump is confined to narrow circumstances and does
not permit defendants to assert a contribution claim at the
“eleventh hour” after choosing not to pursue contribution during
the preceding two years of litigation. Id.
Moyle also distinguished between presenting evidence of a
nonparty’s conduct and allocating fault to that nonparty. 118
Hawaiʻi at 402, 191 P.3d at 1079. It explained that evidence of
45

-- 45 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the nonparty's conduct remained admissible where relevant to the
defendants’ liability, but “it does not follow that the nonparty
should be included on the special verdict.” Id.2
Again, HRS § 663-10.5 specifically provides that the
language of that statute governs notwithstanding other laws,
including UCATA, HRS §§ 663-11 through -17. And Gump and Moyle
are UCATA cases involving different considerations from joint
and several liability issues. HRS § 663-10.5 explicitly
eliminates joint and several liability for government entities
in the circumstances of this case. So UCATA cases arguably do
not control. And the language of HRS § 663-10.5 does not appear
to preclude an allocation of fault to nonparties.
But Gump and Moyle are not only based on the language of
the UCATA statutes and other principles of joint and several
liability. Their holdings also reflect principles of
fundamental fairness. They say that a defendant cannot seek
2 This court applied these principles in Doe Parents No. 1 v. State,
Dep’t of Educ., 100 Hawaiʻi 34, 73-74, 58 P.3d 545, 584-85 (2002). After the
plaintiffs settled with and dismissed a defendant with prejudice, the
Department argued that the dismissed defendant nevertheless remained an
“other tortfeasor” whose fault should reduce its liability under HRS chapter
663. Id. This court rejected that argument. Id. It reiterated that “[a]
party is liable within the meaning of HRS § 663-11 if the injured person
could have recovered damages in a direct action against that party, had the
injured person chosen to pursue such an action.” Id. Because the dismissed
defendant could no longer be sued, he was “not an ‘other tortfeasor’ within
the meaning of HRS § 663-11,” and his fault could not be considered in
reducing the remaining defendant’s liability. Id.
46

-- 46 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
allocation of fault at the “eleventh hour.” In other words,
they are also fundamentally grounded in due process principles.
b. Due process requires notice and a meaningful
opportunity to be heard before a plaintiff’s
recovery may be reduced based on the percentage
of liability of nonparties.
Article I, Section 5 of the Hawaiʻi Constitution provides
that “[n]o person shall be deprived of life, liberty or property
without due process of law.” Haw. Const. Art. I, § 5.
Procedural due process “protect[s] individuals against the
State’s arbitrary deprivation of life, liberty, or property.”
Brown v. Thompson, 91 Hawaiʻi 1, 11, 979 P.2d 586, 596 (1999).
Plaintiffs contend the circuit court reduced their damages
award in violation of their due process rights “without notice
or an opportunity to be heard.”
We agree.
i. Plaintiffs have a property interest.
In a due process analysis, Hawai‘i courts first ask whether
the particular interest which the claimant seeks to protect is
“‘property’ within the meaning of the due process clauses.” 91
Hawaiʻi at 10, 979 P.2d at 595 (cleaned up). “[A] benefit which
one is entitled to receive by statute constitutes a
constitutionally-protected property interest.” 91 Hawaiʻi at 10-
11, 979 P.2d at 595-96 (cleaned up). The United States Supreme
Court has recognized that a state-law cause of action is a
47

-- 47 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
protected property interest for purposes of the federal Due
Process Clause. See Logan v. Zimmerman Brush Co., 455 U.S. 422,
428 (1982) (citing Martinez v. California, 444 U.S. 277, 281-82
(1980) (observing that a state tort claim is a “species of
‘property’ protected by the Due Process Clause”)).
We hold that Plaintiffs also have a due process property
interest under Article I, Section 5 in their cause of action as
well as in their damages award. The circuit court determined
that Plaintiffs were entitled to $14,167,354.81 in damages. The
circuit court then reduced that recovery by 30%, depriving
Plaintiffs of $4,250,206.44. Because that ruling extinguished a
portion of Plaintiffs’ adjudicated recovery, it implicated a
protected property interest that could not be taken without
constitutionally adequate procedures.
ii. Hawai‘i’s due process clause requires
procedures that are fundamentally fair
before a protected property interest may be
deprived.
Because Plaintiffs possess a protected property interest in
their damages award, this court must determine what procedures
were constitutionally “required to protect it.” Brown, 91
Hawai‘i at 10, 979 P.2d at 595. Procedural due process is not “a
fixed concept requiring a specific procedural course in every
situation.” Id. (cleaned up). Rather, “due process is flexible
and calls for such procedural protections as the particular
48

-- 48 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
situation demands.” Id. (cleaned up). Nevertheless, “[t]he
basic elements of procedural due process of law require notice
and an opportunity to be heard at a meaningful time and in a
meaningful manner.” Id. (cleaned up).
The legislative history of HRS § 663-10.5 said that the
measure was necessary to promote “fairness and equity for
government entities” that, because of their perceived “deep
pockets,” might otherwise be required to pay more than their
fair share when determined to be joint tortfeasors. It can be
inferred that the Legislature sought due process for
governmental entities. But, as noted, Plaintiffs are also
entitled to due process.
To determine the specific procedures required to satisfy
due process, Hawaiʻi applies a balancing of several factors
including (1) the private interest that will be affected; (2)
the risk of an erroneous deprivation of that interest through
the procedures actually used, and the probable value, if any, of
additional or alternative procedural safeguards; and (3) the
governmental interest, including the burden that additional
procedural safeguards would entail. Id.
First, the private interest affected was significant: the
$4.25 million reduction in Plaintiffs’ damages award.
Second, there was a significant risk of an erroneous
deprivation of that interest through the procedure used, which
49

-- 49 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
was to not require any notice or opportunity to be heard at all.
The procedure used would have resulted in an absolute
deprivation of the damages awarded, but for this judicial
review. But due process requires appropriate process at the
trial or hearing level.
The probable value of additional procedural safeguards is
substantial. Timely notice that the State intended to seek
nonparty apportionment would have permitted Plaintiffs to
investigate the proposed nonparty tortfeasors, conduct
meaningful discovery, and, where appropriate, seek joinder so
that liability, apportionment, and damages could be resolved in
a single proceeding. Requiring identification of the proposed
nonparties with sufficient particularity would also have enabled
the parties and the circuit court to determine whether each
individual qualified as an “other tortfeasor” under HRS § 663-
10.5 before Plaintiffs’ recovery was reduced.
Third, the governmental interest likewise favors additional
procedural safeguards. HRS § 663-10.5 reflects the
legislature’s determination that governmental entities generally
should be liable only for their proportionate share of fault.
Plaintiffs do not challenge that legislative objective. Rather,
Plaintiffs seek procedures that ensure fault is allocated
accurately before a plaintiff’s recovery is reduced. Not
50

-- 50 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
requiring such procedures diminishes public confidence in the
justice system, which does not serve the governmental interest.
In addition, requiring appropriate procedures imposes a
burden appropriate to the circumstances. Timely notice,
identification of the proposed nonparty tortfeasors, allocation
of the burden of proof to the party seeking apportionment, and
findings supporting the allocation call for orderly litigation
of issues underlying any request for nonparty apportionment.
Indeed, such timely notice and appropriate litigation measures
might even reduce the overall burden on the parties and the
courts by permitting joinder of the proposed tortfeasors and
resolution of all issues of liability and damages in a single
proceeding at the trial level, and not necessitate a lengthy
appeals process. Accordingly, the governmental interest does
not outweigh Plaintiffs’ substantial property interest or the
significant risk of erroneous deprivation.
In summary, in balancing the substantial property interests
at stake, the significant risk of erroneous deprivation created
by the procedures employed, the considerable value of additional
safeguards, and the minimal burden those safeguards impose upon
the State, we hold that due process requires, at a minimum, the
following procedural protections before a plaintiff’s recovery
can be reduced through the allocation of fault to nonparties
under HRS § 663-10.5:
51

-- 51 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
1. Timely notice, through the pleadings or a prompt
amendment thereto, that a party intends to seek allocation
of fault to an identified nonparty, sufficiently in advance
of trial to permit meaningful discovery and, where
appropriate, joinder of the alleged tortfeasor;
2. Identification of each proposed nonparty tortfeasor with
sufficient particularity to permit the parties and the
court to determine whether the proposed nonparty is legally
liable to the plaintiff and otherwise qualifies as an
“other tortfeasor” under HRS § 663-10.5;
3. Placement of the burden on the party seeking
apportionment (as further discussed in Section IV.A.3
below) to establish the legal and factual basis for
allocating fault to each proposed nonparty, including that
the person qualifies as an “other tortfeasor” under HRS §
663-10.5, and the percentage of fault attributable to that
person; and
4. Findings by the trial court establishing that each
identified nonparty qualifies as an “other tortfeasor”
under HRS § 663-10.5 and the percentage of fault
attributable to that nonparty before the plaintiff’s
recovery is reduced.
These procedures would not eliminate nonparty apportionment
under HRS § 663-10.5. They would simply ensure that a
plaintiff’s adjudicated recovery is reduced only after the legal
and factual basis for doing so has been meaningfully litigated
and established.
Here, those safeguards were absent. Accordingly, the
procedures employed here were constitutionally inadequate.
Therefore, the circuit court’s apportionment must be vacated.
We also specifically note that the reputation of nonparties
could be affected by a finding that they are “other
tortfeasors.” Therefore, although we are not requiring
impleader of nonparties at this time for a finding of “other
tortfeasor” liability under HRS § 663-10.5, courts should
52

-- 52 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
consider whether, under the circumstances of a particular case,
impleader of nonparties should be required. Although, without
an opportunity to litigate, there could be no res judicata
effect on a nonparty based on an “other tortfeasor”
determination, nonparties also have a due process right to their
reputational interests.
2. The circuit court erred in determining that the male
students were tortfeasors because there was
insufficient evidence of their tortfeasor status or
degree of fault.
In their second point of error on appeal, Plaintiffs allege
the circuit court erred by determining that the male students
were tortfeasors because there was insufficient evidence in the
record of their tortfeasor status or degree of fault. We agree.
HRS § 663-10.5 permits allocation of fault only to those
who qualify as “other tortfeasors.” A person is “liable” as a
tortfeasor when “the injured person could have recovered damages
in a direct action against that party, had the injured person
chosen to pursue such an action.” Doe Parents No. 1 v. State,
Dep’t of Educ., 100 Hawai‘i 34, 73, 58 P.3d 545, 584 (2002).
In Doe Parents, this court held a dismissed defendant could
not be treated as an “other tortfeasor” because his dismissal
with prejudice meant the plaintiffs could no longer maintain an
action against him. 100 Hawaiʻi at 73-74, 58 P.3d at 584-85. As
such, whether another person contributed to the plaintiff’s
53

-- 53 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
injury and whether that person qualifies as an “other
tortfeasor” are distinct inquiries; the latter requires that the
person be legally subject to liability to the plaintiff.
Here, the circuit court did not determine whether any
particular male student was legally liable to Plaintiffs.
Instead, it stated that “[t]here were a number of different
sexual abuses at different points of time by different
individuals,” but concluded that HRS § 663-10.5 did not require
it “to assign specific percentages of liability between all the
various actors.” It therefore attributed 30% of the fault
collectively to “all the other tortfeasors combined (meaning all
persons who abused [Amy] sexually during the relevant time
period).”
But the circuit court also noted that there was little to
no evidence the boys involved knew any particulars about Amy’s
cognitive disabilities. The circuit court also found that with
the possible exception of the boy who assaulted Amy at Ala
Moana, Amy was likely a peer special education student to the
boys. The court further found that there was little to no
evidence the boys were aware or should have been aware that Amy
lacked ability to consent to sex. These findings indicate there
was insufficient evidence that the male students qualified as
“other tortfeasors.”
54

-- 54 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
In addition, the circuit court concluded that “all persons
who abused [Amy] sexually during the relevant time period”
constituted “other tortfeasors” under HRS § 663-10.5 and
collectively allocated 30% of the fault to them and 70% to the
State. That collective finding was also insufficient.
The record contained evidence of different conduct by
different male students at different times. The circuit court
did not determine that any specific male student committed an
actionable tort against Amy or was someone from whom Plaintiffs
could have recovered damages in a direct action. Without those
determinations, there was insufficient evidence that any of the
male students were “other tortfeasors” within the meaning of HRS
§ 663-10.5.
3. The circuit court erroneously shifted the burden of
proof on apportionment from the State to Plaintiffs.
In their third point of error, Plaintiffs allege that the
circuit court erroneously shifted the burden of proof on
apportionment from the State to them. For the following
reasons, we also agree with this point of error.
a. Apportionment of liability to a non-party “other
tortfeasor” under HRS § 663-10.5 is an
affirmative defense.
Preliminarily, Plaintiffs assert that HRS § 663-10.5
creates an affirmative defense. The State disagrees. This
court has not addressed whether or not HRS § 663-10.5 is an
affirmative defense for a government entity asserting “other
55

-- 55 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
tortfeasor” liability. This is a question affecting pleading
and proof burdens.
HRCP Rule 8(c) requires that “[i]n pleading to a preceding
pleading, a party shall set forth affirmatively” numerous
enumerated defenses, including contributory negligence, release,
waiver, and the statute of limitations, “and any other matter
constituting an avoidance or affirmative defense.” The
affirmative defenses listed in the rule are not exclusive. Rule
8(c) expressly provides that “‘any other matters constituting an
avoidance or affirmative defense’ must also be pleaded
affirmatively.” Touche Ross, Ltd. v. Filipek, 7 Haw. App. 473,
487 778 P.2d 721, 730 (App. 1989).
Generally, an affirmative defense is one that defeats or
bars an otherwise valid claim. Bhakta v. Cnty. of Maui, 109
Hawai‘i 198, 211, 124 P.3d 943, 956 (2005). But affirmative
defenses are not limited to defenses that completely bar
recovery.
For example, HRCP Rule 8(c) identifies “payment” as an
affirmative defense. Black’s Law Dictionary defines “payment”
as “[p]erformance of an obligation by the delivery of money or
some other valuable thing accepted in partial or full discharge
of the obligation.” Payment, Black’s Law Dictionary (12th ed.
2024). So partial payment is an affirmative defense.
56

-- 56 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Likewise, HRCP Rule 8(c) identifies contributory negligence
as an affirmative defense. Under Hawai‘i law, contributory
negligence is no longer a complete bar to recovery and has been
replaced by comparative negligence, which reduces a plaintiff’s
recovery when the plaintiff’s negligence is not greater than the
combined negligence of the defendants. HRS § 663-31(c). Both
contributory and comparative negligence are affirmative
defenses.
The State contends that HRS § 663-10.5 is not an
affirmative defense and is merely a limitation on liability. It
cites no authority for that proposition and does not explain why
HRS § 663-10.5 should be treated differently from the numerous
affirmative defenses that limit or reduce liability.
Also, the State appears to have recognized HRS § 663-10.5
is an affirmative defense because it pled it as such. The
fifteenth defense in the State’s answer to the first amended
complaint says: “The liability, if any, of the DOE, Nakagawa and
Jones, any of them or collectively, is limited under HRS §663-
10.5.” The fourteenth defense preceding this defense alleges
that Plaintiffs’ claims are barred by the equitable doctrines of
estoppel, collateral estoppel, res judicata, laches, and unclean
hands, which are affirmative defenses.
Other jurisdictions addressing nonparty apportionment
generally recognize that reducing a defendant’s liability by
57

-- 57 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
attributing fault to a nonparty constitutes an affirmative
defense. Courts have therefore required defendants to provide
timely notice and bear the burden of proving the nonparty’s
fault.
For example, in Hardin v. Manitowoc-Forsythe Corp., 691
F.2d 449, 453 (10th Cir. 1982), the Tenth Circuit addressed
whether fault could be allocated to “phantom parties” under
Kansas law. In discussing the procedural effect of the
defendants’ failure to plead phantom-party fault, the court
explained that “[t]he policy behind Rule 8(c) is to put
plaintiff on notice well in advance of trial that defendant
intends to present a defense in the nature of an avoidance.”
691 F.2d at 458. It then characterized phantom-party fault as
such a defense, stating that “[t]he defense that a phantom party
contributed to the plaintiff’s injuries is in the nature of an
avoidance and normally would be required to be pleaded
affirmatively in the answer.” Id.
Likewise, in McGraw v. Sanders Co. Plumbing & Heating,
Inc., 667 P.2d 289, 295-96 (Kan. 1983), the Kansas Supreme Court
held that a defendant seeking to reduce its percentage of fault
by attributing fault to another occupies the same burden as the
defendant who claims the plaintiff was partially or entirely at
fault. 667 P.2d at 295. The court reasoned that the defense
that a “‘phantom party’ contributed to the plaintiff’s injuries
58

-- 58 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
is arguably a ‘matter constituting an avoidance’” and therefore
places the defendant “in the same position as if he were
claiming the plaintiff was negligent.” Id.
The Florida Supreme Court adopted the same approach in Nash
v. Wells Fargo Guard Serv.’s, Inc., 678 So. 2d 1262, 1264-65
(Fla. 1996), holding that “the defendant must plead as an
affirmative defense the negligence of the nonparty and
specifically identify the nonparty.” The court explained that
pretrial notice is essential because the assertion that
noneconomic damages should be apportioned against a nonparty
“may affect both the presentation of the case and the trial
court’s rulings on evidentiary issues.” 678 So. 2d at 1264.
Thus, we hold that where “a government entity is determined
to be a tortfeasor” but seeks a determination that it is “liable
for no more than that percentage share of the damages
attributable to the government entity” due to the alleged
liability of a nonparty “other tortfeasor,” it is asserting an
affirmative defense.
b. A defendant asserting an affirmative defense
bears the burden of pleading and proving the
defense.
Generally, the defendant has the burden of proof on all
affirmative defenses, which includes the burden of proving facts
which are essential to the asserted defense. State ex rel.
Shikada v. Bristol-Myers Squibb Co., 152 Hawai‘i 418, 526 P.3d
59

-- 59 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
395 (2023) (accord and satisfaction is an affirmative defense,
and the party asserting it bears the burden of proof). And,
generally, a plaintiff is not required to disprove affirmative
defenses. U.S. Bank Nat’l Ass’n v. Castro, 131 Hawaiʻi 28, 41,
313 P.3d 717, 730 (2013).
Courts addressing nonparty apportionment have applied the
same principle. In McGraw, the Kansas Supreme Court explained
that a defendant seeking to reduce its percentage of fault by
attributing fault to another “would have the burden to plead and
prove his claims,” relying on the general rule that “the burden
of proof on any point is upon the party asserting it.” 667 P.2d
at 295. It ultimately held that “a defendant who seeks to
reduce his percentage of fault by comparing the fault of a party
joined pursuant to K.S.A. 60-258a(c) has the burden of proving
the joined party's fault by a preponderance of the evidence.”
Id.
Similarly, in Nash, the Florida Supreme Court held that
“the defendant has the burden of presenting at trial that the
nonparty’s fault contributed to the accident” in order to
include the nonparty on the verdict form. 678 So. 2d at 1265.
This court’s approach to liability apportionment is
consistent with HRS § 663-10.5 being an affirmative defense. In
Collins v. Greenstein, 61 Haw. 26, 41 n.10, 595 P.2d 275, 284
60

-- 60 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
n.10 (1979), this court quoted the Restatement (Second) of Torts
§ 433B(2), which states:
Where the tortious conduct of two or more actors has
combined to bring about harm to the plaintiff, and one or
more of the actors seeks to limit his liability on the
ground that the harm is capable of apportionment among
them, the burden of proof as to the apportionment is upon
each such actor.
Although this statement appeared in a footnote, it reflects
the same allocation of the burden applicable to affirmative
defenses generally: when an actor seeks to limit their own
liability on the ground that the plaintiff’s harm is capable of
apportionment, that actor bears the burden of proving the
apportionment. Thus, the burden is on the party seeking to
reduce their liability through apportionment, rather than
requiring the plaintiff to disprove apportionment.
Here, the State sought to limit and reduce its liability.
The circuit court determined that the State was liable for
Plaintiffs’ damages, but reduced the State’s share of liability
by 30% based on the purported fault of other tortfeasors.
Because the State sought to limit its liability through
apportionment, it bore the burden of properly pleading and
proving the facts necessary to support that reduction.
61

-- 61 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
c. The State failed to carry its burden and waived
any apportionment to the male students.
The State generally pled HRS § 663-10.5 as an affirmative
defense. But it never specifically asserted that it was seeking
to allocate fault to the boys under that statute.
The circuit court’s apportionment under the circumstances
of this case effectively shifted the State’s burden to
Plaintiffs. The State never identified the male students as the
alleged “other tortfeasors” upon whom its affirmative defense
depended. It was not Plaintiffs’ burden to prove that
unidentified nonparties were not tortfeasors.
Nor did the State make any attempt to establish a
percentage of fault attributable to the male students. The
State did not identify the students whose fault it sought to
allocate, present evidence directed toward establishing their
status as “other tortfeasors” (or their respective
responsibilities), or propose any percentage of fault
attributable to them in its closing argument or proposed
findings.
By concluding that “all persons who abused [Amy] sexually
during the relevant time period” were “other tortfeasors” and
collectively allocating 30% of the fault to them, the circuit
court relieved the State of its burden to establish both the
62

-- 62 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
tortfeasor status of the persons upon whom its affirmative
defense depended, and the degree of fault attributable to them.
Because the State did not attempt to carry its burden, it
waived any argument that its liability should be reduced based
on the male students’ alleged fault. Therefore, the circuit
court erred in apportioning 30% of the fault to the male
students.
Properly placing the burden on the party seeking
apportionment to establish the legal and factual basis for
allocating fault to a nonparty ensures that a plaintiff’s
recovery is not diminished in violation of due process, as
occurred here.
4. The circuit court erred in denying Plaintiffs’ motion
to amend the judgment.
Plaintiffs’ fourth point of error challenges the circuit
court’s denial of their HRCP Rule 59(e) motion to amend the
judgment. In that motion, Plaintiffs asked the circuit court to
reverse its apportionment of 30% of the fault to the male
students and to amend the judgment accordingly.
For the reasons discussed above, Plaintiffs’ motion should
have been granted. The State did not assert that the male
students were “other tortfeasors” under HRS § 663-10.5, did not
meet its burden of establishing their tortfeasor status or
degree of fault, and the circuit court could not shift that
63

-- 63 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
burden to Plaintiffs and sua sponte apportion 30% of the fault
to the students. The resulting judgment therefore improperly
reduced Plaintiffs’ damages by 30%, or $4,250,206.44.
Accordingly, the circuit court erred in denying Plaintiffs’
motion to amend the judgment.
B. The State’s Cross-Appeal
The State raises three points of error on cross-appeal.
The first two concern pretrial orders that denied a HRCP Rule 35
examination and a further deposition of Amy, which we address in
reverse order. The third alleges the circuit court’s damages
award was grossly excessive. None of the points of error have
merit.
1. The circuit court did not abuse its discretion
by denying a further deposition of Amy.
The State alleges that the circuit court abused its
discretion by denying its request to complete Amy’s deposition.
Discovery rulings are reviewed for abuse of discretion.
Kealoha, 74 Haw. at 319, 844 P.2d at 676. Under this standard,
we address whether the circuit court clearly exceeded the bounds
of reason or disregarded rules or principles of law to the
substantial detriment of the State. Id. In general, this court
has recognized that discovery rules reflect a policy favoring
broad disclosure of relevant information and that “the
deposition-discovery rules are to be accorded a broad and
64

-- 64 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
liberal treatment.” Appeal of Goodfader, 45 Haw. at 336, 367
P.2d at 472 (citation omitted). HRCP Rule 30 generally permits
parties to obtain testimony through oral depositions. HRCP Rule
30. HRCP Rule 30 provides that “[a]fter commencement of the
action, any party may take the testimony of any person,
including a party, by deposition upon oral examination.”
That right, however, is not absolute or without parameters.
“[D]iscovery, like all matters of procedure, has ultimate and
necessary boundaries.” Appeal of Goodfader, 45 Haw. at 336, 367
P.2d at 483 (quoting Hickman v. Taylor, 329 U.S. 495, 507
(1947)). For example, HRCP Rule 26 generally allows courts to
limit discovery where the discovery sought is “unreasonably
cumulative or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less
expensive”; where the requesting party has already had ample
opportunity to obtain the information sought, or where “the
burden or expense of the proposed discovery outweighs its likely
benefit.” HRCP Rule 26 (eff. 2022).
HRCP Rule 26 also authorizes courts to issue protective
orders to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
Further, HRCP Rule 30 specifically allows for oral depositions
to be limited “when it can be shown that the examination is
being conducted in bad faith or in such a manner as to annoy,
65

-- 65 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
embarrass or oppress the person subject to the inquiry.” HRCP
Rule 30(d).
This court has repeatedly recognized that trial courts have
considerable latitude and discretion over discovery requests.
Kilakila ʻO Haleakala v. Bd. of Land & Nat. Res., 138 Hawaiʻi
383, 401, 382 P.3d 195, 213 (2016). And in exercising that
discretion, courts may consider “all factors, including the
effect the inquiry might have on the person to be interrogated.”
Appeal of Goodfader, 45 Haw. at 335, 367 P.2d at 483.
Hawaiʻi courts have not articulated a specific framework
governing when a trial court may limit further testimony from a
medically or psychologically vulnerable witness.
However, Hawaiʻi courts have recognized a close relationship
between HRCP Rule 26 and its federal counterpart. See Brende v.
Hara, 113 Hawaiʻi 424, 431, 153 P.3d 1109, 1116 (2007) (observing
that HRCP Rule 26(c) is “patterned after Federal Rules of Civil
Procedure Rule 26(c)” and “[i]n instances where Hawaiʻi case law
and statutes are silent, this court can look to parallel federal
law for guidance.”). We have also said that where a Hawaiʻi
civil procedure rule is identical to the federal rule, federal
court interpretations of the rule can be highly persuasive.
Carvalho v. AIG Hawai'i Ins. Co., 150 Hawaiʻi 381, 386, 502 P.3d
482, 487 (2022).
66

-- 66 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Several jurisdictions characterize the complete prohibition
of a deposition as requiring “extraordinary circumstances.” See
Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)
(observing that an order completely prohibiting a deposition is
“very unusual” and, absent extraordinary circumstances, would
likely constitute error); Dunford v. Rolly Marine Serv. Co., 233
F.R.D. 635, 636 (S.D. Fla. 2005) (recognizing that protective
orders prohibiting depositions are “rarely granted absent
extraordinary circumstances” and require a heavy showing of good
cause); In re McCorhill Publ’g, Inc., 91 B.R. 223, 225 (Bankr.
S.D.N.Y. 1988) (explaining that prohibiting an oral deposition
is “a very unusual procedure” and that the movant bears a heavy
burden of demonstrating good cause).
Some courts have found extraordinary circumstances where
the proposed deposition posed a substantial risk of life-
threatening physical harm. See Dunford, 233 F.R.D. at 636
(granting a protective order where a treating neurologist
attested that the witness suffered from a potentially life-
threatening brain disorder); In re McCorhill Publ’g, Inc., 91
B.R. at 225 (granting a protective order where a treating
physician testified that an oral deposition could threaten the
witness’s life because of his medical condition).
Courts have recognized that sufficiently supported
psychological harm may likewise justify prohibiting a
67

-- 67 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
deposition. See Campos v. Webb Cnty., 288 F.R.D. 134, 135-36
(S.D. Tex. 2012) (recognizing that competent medical evidence of
severe psychological harm may warrant prohibiting a deposition,
while concluding that the plaintiff had not yet made the
requisite showing).
But courts have required that a request to prohibit a
deposition be supported by competent, specific, and documented
medical evidence demonstrating that the proposed deposition
poses a substantial risk of serious harm. See Anderson v.
Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986) (holding that good
cause must rest on “a particular factual demonstration of
potential harm”); Medlin v. Andrew, 113 F.R.D. 650, 653
(M.D.N.C. 1987) (requiring a “specific and documented factual
showing” that a deposition would be dangerous to the deponent's
health); Schorr v. Briarwood Estates Ltd. P’ship, 178 F.R.D.
488, 492 (N.D. Ohio 1998) (finding good cause where the
plaintiff supported the request with specific documentation from
a PTSD expert); Campos, 288 F.R.D. at 136-38 (requiring detailed
medical evidence explaining how and why the deposition would
cause the predicted harm); Estate of Chen v. Lingting Ye, 208
A.3d 1168, 1176-77 (R.I. 2019) (holding that conclusory
predictions of harm are insufficient absent a particularized
factual showing).
68

-- 68 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Cases also hold that where such a showing has been made,
trial courts should ordinarily consider whether reasonable
accommodations adequately mitigate the identified risk before
determining whether further examination should proceed. See
Schorr, 178 F.R.D. at 492 (permitting the deposition subject to
extensive conditions governing its manner and scope); Estate of
Chen, 208 A.3d at 1178-79 (recognizing the trial court’s
authority to impose reasonable restrictions on depositions);
Arcaris v. Superior Court, 160 Ariz. 533 (Ariz. Ct. App. 1989)
(approving protective measures designed to facilitate accurate
testimony while minimizing harm to a child witness); Ceron v.
Belilovsky, 92 A.D.3d 714, 715 (2012) (upholding a protective
order prohibiting an oral deposition where expert evidence
established that testifying under oath would be detrimental to
the child’s health, while permitting written interrogatories
instead).
Accordingly, we hold that, in general, a party seeking to
prohibit a deposition on medical or psychological grounds must
present competent, specific, and documented evidence
demonstrating that the proposed deposition poses a substantial
risk of serious harm. Generalized concerns, conclusory medical
opinions, or speculative predictions of future injury are
insufficient. Upon such a showing, trial courts should consider
whether reasonable accommodations would adequately mitigate the
69

-- 69 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
identified risk while preserving meaningful discovery. If the
court determines that appropriate accommodations will
sufficiently reduce the risk of harm, it may permit the
deposition subject to those conditions. If, however, the court
concludes that the demonstrated risk cannot be adequately
mitigated through reasonable accommodations, it may limit or
prohibit further examination in the exercise of its discretion
under HRCP Rule 26.
Here, the circuit court did not abuse its discretion by
prohibiting the further deposition of Amy. The State completed
two depositions of Amy, one on March 31, 2016, and the second on
September 29, 2016. The State successfully completed these two
depositions under a protective order that set measures designed
to minimize psychological harm. Despite those measures, Amy’s
symptoms worsened following the depositions, requiring increased
medication and raising concerns regarding a potential psychotic
episode.
Due to these concerns, the circuit court took the step of
appointing a neutral expert psychologist to assess Amy’s ability
to proceed with the deposition. After an exhaustive review of
Amy’s medical records and the recordings of Amy’s previous
depositions, as well as her own clinical examination of Amy, Dr.
Higa-Rogers agreed that Amy could not safely undergo further
deposition sessions. Only then did the circuit court rule that
70

-- 70 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Therefore, the circuit court was presented with
substantive, specific evidence of actual harm that had already
befallen Amy as well as the likelihood of further harm if a
further deposition was allowed to take place. The circuit court
denied a third and final deposition session only because of
consistent medical evidence from multiple treating
professionals, a court-appointed neutral evaluator, and the
State’s own retained expert expressing serious concerns
regarding Amy’s ability to safely participate in a further
examination. The experts opined that Amy’s chronic PTSD, severe
no further deposition of Amy could proceed without court
approval.
Then, in January 2020, the State again filed a motion to
depose Amy. In response, the court ordered Dr. Higa-Rogers to
again opine whether Amy could be deposed and if she could
undergo a HRCP Rule 35 examination. In July 2020, Dr. Higa-
Rogers opined:
As previously noted in my December 2018 report, given the
severity [Amy]’s intellectual disability, which is
pervasive in nature, she is not expected to show
significant improvements in her ability to comprehend the
legal process or complex questions, and is more likely to
agree when a yes/no question is asked of her and to assent
when a suggestion is made to her. Furthermore, there is
documentation that following prior depositions [sic] [Amy]
experienced an increase in her symptoms and required an
increase in her medications to address her nightmares,
startle response and fears. The benefits of pursuing
further questioning/testing do not appear to outweigh the
potential risks to [Amy]'s mental health, limited coping,
and is unlikely to yield significant additional
information.
71

-- 71 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
intellectual disability, psychotic symptoms, and inability to
develop effective coping mechanisms rendered an additional
examination likely to cause further serious psychological
injury.
The record also supports the circuit court’s conclusion
that the likely benefit of additional examination was minimal.
Medical experts explained that additional questioning was
unlikely to be productive. Any information Amy provided might
not be reliable because of her disability, which rendered her
highly suggestible.
In addition, the State remained free to pursue information
from other sources. Although the State argues it required
additional testimony regarding Amy’s interactions with her
neighbor, the record does not reflect that it attempted to
depose the neighbor directly. Nor does the record reflect that
the State sought testimony from other identified witnesses or
pursued less intrusive means of obtaining the information it
sought.
Under the circumstances, the circuit court did not abuse
its discretion by ruling that the marginal benefit of additional
examination did not justify the substantial identified risk and
that the risk would not dissipate with time.
72

-- 72 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
2. The circuit court did not abuse its discretion by
denying the State’s request for a HRCP Rule 35
examination.
The State also alleges that the circuit court abused its
discretion by denying its request to conduct a HRCP Rule 35
examination of Amy.
HRCP Rule 35(a) provides, in relevant part, “[w]hen the
mental or physical condition . . . of a party . . . is in
controversy, the court . . . may order the party to submit to a
physical or mental examination.” HRCP Rule 35(a). The rule
further provides that such an order “may be made only on motion
for good cause shown.” HRCP Rule 35(a). The ICA has recognized
that a Rule 35 motion must “adequately demonstrate the existence
of the Rule’s requirements of ‘in controversy’ and ‘good
cause,’” and that “[t]he movant must produce sufficient
information, by whatever means, so that the [trial] judge can
fulfill [the] function mandated by the Rule.” Glover v. Grace
Pac. Corp., 86 Hawai‘i 154, 160, 948 P.2d 575, 581 (App. 1997)
(citation omitted).
HRCP Rule 35 is almost identical to Rule 35 of the Federal
Rules of Civil Procedure. In Schlagenhauf v. Holder, 379 U.S.
104, 118 (1964), the U.S. Supreme Court explained that the “in
controversy” and “good cause” requirements are “plainly
expressed limitations on the use of the Rule” and “are not met
by mere conclusory allegations of the pleadings, nor by mere
73

-- 73 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
relevance to the case.” Instead, each “require[s] an
affirmative showing by the movant.” Id.
Here, Amy’s psychological condition was clearly in
controversy. And there was good cause for a HRCP Rule 35
examination.
But satisfaction of HRCP Rule 35’s threshold requirements
does not end the inquiry. Once the moving party establishes the
“in controversy” and “good cause” requirements, HRCP Rule 35
provides only that the court may order the requested
examination. HRCP Rule 35(a). The rule therefore authorizes,
but does not require, an examination.
Here, the circuit court did not abuse its discretion by
denying the HRCP Rule 35 examination. By the time the State
sought the examination, the court had spent years attempting to
address issues regarding Amy’s continued deposition, as
discussed above. The circuit court was well aware of
significant concerns regarding the effect of litigation-related
questioning on Amy’s mental health.
Most significantly, Dr. Higa-Rogers, the court-appointed
neutral medical expert, also recommended that the HRCP Rule 35
exam not proceed due to the risks to Amy’s health. Dr. Higa-
Rogers opined that “the benefits of pursuing further
questioning/testing do not appear to outweigh the potential
74

-- 74 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
risks to [Amy]’s mental health, limited coping, and is unlikely
to yield significant additional information.”
The circuit court denied the requested examination after
receiving this information, concluding that it posed a
“significant risk to [Amy]’s mental health.” The circuit court
did not err by concluding that the anticipated benefits of a
HRCP Rule 35 examination did not justify the risks identified by
the medical evidence. It therefore did not abuse its discretion
by denying the HRCP Rule 35 examination requested by the State.
Moreover, the denial of the HRCP Rule 35 examination did
not result in substantial prejudice to the State.
First, the State was not deprived of information concerning
Amy’s mental condition. The State had Amy’s extensive medical
records and reports. Second, the State does not specify what
type of otherwise unavailable information a HRCP Rule 35
examination was likely to produce. Finally, the State has not
demonstrated that denial of the HRCP Rule 35 examination
substantially prejudiced its defense. The State had completed
two depositions of Amy before seeking the examination. In
addition, the medical evidence consistently established that
Amy’s severe intellectual disability rendered her highly
suggestible and that any additional information obtained through
a HRCP Rule 35 examination might also not be reliable.
75

-- 75 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Under these circumstances, the circuit court did not abuse
its discretion by denying the State’s request for a HRCP Rule 35
examination.
3. The damages award was not excessive.
Finally, the State asks this court to reverse the circuit
court's damages award, contending that the amount was grossly
excessive.
Appellate review of a damages award is highly deferential
because the assessment of damages lies primarily within the
province of the factfinder. See Kang, 59 Haw. at 663, 587 P.2d
at 292. A damages award will not be disturbed unless it is
“palpably not supported by the evidence” or is “so excessive and
outrageous” as to demonstrate that the factfinder acted against
the rules of law or was misled by passion or prejudice. Kekona,
135 Hawaiʻi at 257, 349 P.3d at 364. In a jury-waived case, the
inquiry is limited to whether, “upon the evidence adduced,
reasonable [people] could have come to the same conclusion as
the . . . trial court.” Kang, 59 Haw. at 663, 587 P.2d at 292
(citation omitted).
Here, the record contains substantial evidence supporting
the award. The court conducted a sixty-six-day bench trial,
heard testimony from more than thirty witnesses, and made
extensive findings regarding both liability and damages. The
record amply supports the damages awards.
76

-- 76 of 77 --

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Thus, the damages awarded are not excessive.
V. Conclusion
For these reasons, we vacate the November 28, 2022 final
judgment to the extent it allocated 30% of the fault to
nonparties and reduced Plaintiffs’ damages. We remand this case
to the circuit for entry of an amended final judgment awarding
Plaintiffs the entirety of the damages found by the circuit
court. We affirm in all other respects.
Anne E. Lopez
Skyler G. Cruz
Jennifer H. Crum
for appellee/cross-appellant,
State of Hawaiʻi
Eric G. Ferrer
Susan K. Dorsey
William Meheula
for appellants/cross-appellees,
R.H. and A.H.
/s/ Vladimir P. Devens
/s/ Sabrina S. McKenna
/s/ Todd W. Eddins
/s/ Lisa M. Ginoza
/s/ Catherine H. Remigio
77

-- 77 of 77 --