*1 pellees point Olson and C. refusing Brewer out court abused its discretion in 54(b) survey maps proof Judgment. “[e]ven are not of title.” overturn the Rule As Perreira, (Citing Haw.App. pointed Appellees, at maps 633 P.2d out could 1123.) They Cridge successfully Boundary maintain that attack the Com Waipuilani judgments change legal maps J.H. “could not mission inasmuch as those quarter century results of the Land were made a of a Commission and Bound- after the ary Boundary proceedings Commission Commission settled the decades after boundaries Lastly, Appellees the fact.” Olson and of Hilea Iki and Hilea Nui. It C. is irrelevant to dispositive Boundary Brewer contend that the court did not in the nature of the err Com denying later, Appellants’ judgments Omerod relief mission based on decades C. alleged agents might misrepresentation thought fraud and Brewer and its have be- (1) maps larger cause: that C. “were not Brewer had a interest than it material/rele- proving disproving vant to did. official acts of (2) Kingdom C. Hawaii” Brewer’s XVII. conduct “did not rise to the level
misrepresentation justifying and misconduct forth, For the reasons set we affirm the such relief.” (1) 54(b) court’s: November 2004 Rule (2)
Judgment, February deny- 2005 Order C. ing Appellants’ Motion to Alter or Amend (3) Sanctions; July and for 2005 Order The court’s decision not im (4) denying Appellees’ Quash; Motion to pose discovery sanctions is reviewed for July denying Appellants’ 8 Order Motion for Vincent, abuse discretion. Stender v. 60(b) Relief under HRCP Rule and for Sanc- (2000). Hawai'i It tions. cannot be concluded that the court abused its ruling, discretion. In its oral the court im LEVINSON, J., only. concurs in the result plicitly interpretation found that C. Brewer’s discovery request was reasonable stated, when it “I can see where Mr. Cross
might taken [the
Cridge map] something wasn’t that was produced
needed to be
because it wasn’t a
survey map.”
finding,
Based on this
the Estate of Chiaki Tomo no; Partners; Agronom Andraea Arvak D. ics, Inc.; C & L Orchids and Island brought When motion relief is Agribusiness, Ltd.; Ernest Carlbom and 60(b)(2), under HRCP Rule trial new Cymbidium Carlbom; Partners; Donna granted provided can be the evidence Resources/Hawaii, Inc.; Flowers, Floral (1) following requirements: meets the it Inc.; Cymbidium Partners; Glenwood previously must be undiscovered even Nurseries, Inc.; Green Point Daniel (2) exercised; though diligence due it Farm; Hata Hata Hawaiian An d/b/a credible; must be admissible and it thuriums, Greenhouses, Ltd.; Hawaiian must be controlling such material and Inc.; Heart, Inc.; Hawaiian Albert Isa probably change nature as mil the out Nursery; Albert Isa Kaimu Nurs d/b/a merely come and not ending cumulative or ery, Inc.; Nursery; Margaret Kaohe only impeach or contradict a witness. Kincaid and Peter Kincaid Anuen d/b/a Farms, Farms; Orchids, Inc.; Kupulau Kawamata ue Hawai'i Kona added). Partners; Applying at 1092 Anthurium Alan Kuwahara standard, Floriculture; it cannot be concluded that the Puna James Kuwa d/b/a *2 Farm; hara James S. Kuwahara d/b/a Kuwahara, Inc.; Henry Liljedahl;
Yoso McCully; Partners; Mit
Malaai James Miyatake Miyatake Farms;
suo d/b/a Nakaoka Kona Grown Nurs
Curtis d/b/a
eries; George J. Naka Nakashima d/b/a Farm; Jeffrey
shima Newman d/b/a Nurseries; Mark K. Nozaki
Newman’s Farms; Big Nozaki Rock Anthuri
d/b/a
ums, Inc.; Oka Nurs Patrick Oka d/b/a
ery; Carl Okamoto Carl Okamoto d/b/a Flowers; Clyde Tropical
& Lehua Oka Farms;
moto Ho'Onanea Wade d/b/a Anthuriums; Paradise Okamoto d/b/a
Ronald Okazaki and Dora Okazaki d/b/a Nursery;
Lehua Anthurium Neal Oki Orchids;
moto Pacific Paradise d/b/a Nurseries, Inc.; Partners;
Orchid Pacific Anthuriums, Inc.;
Polynesian Orchids & Foliage, Inc.;
Puna Flowers & Sunshine
Farms; George Shiroma G. Shiro d/b/a Farms;
ma Masato Mae’s Shiroma d/b/a
Nursery; Sunada; Masao Samuel H. Sylvia Taka;
Taka & A. Taka S. d/b/a Takemoto, Takemoto,
Yoshio Midori Takemoto,
Cary Morris Takemoto and
Norman Takemoto Takemoto d/b/a Farm; Fetulima Tamasese Pacific d/b/a Orchids; Tanouye
Kona Harold & S.
Sons, Henry Inc.; Terada and Loraine Farm; H L
Y. Terada & Terada d/b/a
Vantanage Partners; I Limited Uniwai
Partners; Partners; II Limited Uniwai Partners; Dwight Walker, E.
Waiakea K. Puna
Jr. and Bernice Walker d/b/a Flowers;
Ohana Mark Willman d/b/a Hawaii, Orchids; Ltd., Exotics
Hawaii
Plaintiffs-Appellants/Cross-Appellees
E.I. DE COMPA Du PONT NEMOURS & Hasegawa, NY; Teshima; Reginald Allen dants-Appellees/Cross-App
Defen
ellants.
No. 27489.
Supreme Court of Hawai'i. 21, 2007.
Nov.
281 *5 Honolulu, briefs, Agena,
Melvin Y. on the plaintiffs-appellants/cross-appellees. III, Okamoto, Price Kenneth T. Warren (of Marks, A. Robert and Susan C. Wilson Lum), Price Okamoto Himeno & on the briefs, defendant-appellee/cross-appellant, Company. E.I. Du Pont de Nemours and MOON, C.J., LEVINSON, NAKAYAMA, LEE, JJ., Judge and Circuit In Place of DUFFY, J., Recused; ACOBA, J., Dissenting. MOON,
Opinion of the Court C.J. product The instant action arises from lia- bility plaintiffs-appel- cases initiated lants/eross-appellees Albert Isa dba Albert (Isa), Nursery Syl- Samuel H. Taka and Isa (the Takas), via A. Taka dba S. Taka Mark *6 (Willman), dba Hawaii Orchids Willman [hereinafter, McCully collectively, James the plaintiffs] against, in 1992 and 1993 inter alia, defendant-appellee/cross-appellant (Du- Company E.I. du Pont de Nemours and Pont), Benlate, alleging that contaminated an agricultural fungicide by manufactured Du- Pont, damaged plants had killed or their nurseries.1 Between 1994 and plaintiffs product liability their settled cases. plaintiffs commenced the instant alia, DuPont, against, alleging action inter only settling they after their claims did improperly discover that DuPont had failed to reveal certain vital scientific data and in- indicating formation that Benlate con- was such, plaintiffs taminated. As believed guilty fraudulently that DuPont was with- holding such evidence order to induce them to settle for than the fair less value their claims. originally sixty plaintiffs against only
1. There were in the claims DuPont inasmuch as the in- action; however, present fifty-six plaintiffs plaintiffs appealed re- stant four court. Soon this against during filing appeal, solved their cases DuPont after the two notice of proceedings. Specifically, thirty- apparently plaintiffs circuit court with settled DuPont original sixty plaintiffs stipulation partial seven of settled their filed their dismissal of ac- 27, 2002, against September prejudice. Accordingly, claims DuPont on unless other- tion 2, 2003, indicated, September any proceedings relating four on these and thirteen on June wise remaining plaintiffs plaintiffs proceeded fifty-six The 2005. six will not be mentioned in this conclusion; however, ap- they with their case to its memorandum inasmuch as are not relevant parently plaintiffs appeal. disposition two of the six settled their to the of the instant only plain four orders, they relate to those below In three summary pertinent tiffs and the Circuit, the Hon- of the Third Circuit Court granting sum orders—specifically, the order presiding, found in Ronald J. Ibarra orable plaintiffs’ on the inabil mary judgment based plaintiffs’ on all of the of DuPont favor damages. ity prove court, Significantly, the circuit claims. with- determining DuPont indeed out whether Complaint A. The as a matter of law committed found mentioned, Novem- between previously As their bur- plaintiffs could not meet plaintiffs, who 1992 and March ber According to the proving damages. den of product growers, brought commercial were court, available circuit alia, Dupont, against, inter actions plaintiffs “the fair value was product defec- its Benlate alleging that A claim at the time of the settlement.” plants damage to their and that it caused tive judgment, pursuant to Hawaii Rules Civil plain- In 1994 and nurseries. 54(b) (HRCP) (2007),2in fa- Rule Procedure agree- into individual tiffs entered August entered on vor of DuPont was that resulted in DuPont’s DuPont ments with exchange for the sums in payment of certain plaintiffs appeal—and DuPont cross plaintiffs. As a execution of releases 54(b) judg- the HRCP Rule appeals—from agreements, of these settlement l’esult alia, challenge, plaintiffs inter ment. The stipulations to dismiss plaintiffs entered into granting circuit court’s order prejudice. liability actions with product were unable judgment on the basis plaintiffs filed an January On posi- damages. Although DuPont’s prove complaint amended eighty-four page first 54(b) judgment HRCP Rule tion is that the alia, against, inter DuPont. appar- upheld, appeals it cross should be them DuPont had defrauded claimed that recognition possibility ent dollar for settling pennies on the “into position, chal- may agree with its product. Benlate damages” caused its granting part lenging another order that Du- alleged Specifically, motion for sum- denying part DuPont’s fraudulently wrongfully, illegally, and Pont mary judgment, discussed discovery vital scientific data from withheld infra. *7 under an obli- that it was and information herein, hold that For the reasons stated we product underlying produce in the gation to summary granted properly circuit court amend- plaintiffs’ first liability actions. the basis judgment in favor of DuPont on alleged that: complaint ed not, plaintiffs could as a matter of that the ac- If, [pjlaintiffs time the 208. at the therefore, and, law, affirm prove underlying their cepted settlement August judgment. 2005 the circuit court’s claims, they liability] had received [product full, fair, complete disclosure truthful and I. BACKGROUND information, [p]laintiffs of material presented a brief previously court has This accepted the consideration not have underlying product factual was substan- for settlement which offered Hawai'i-Kona, Inc. had liability in Exotics tially cases than the losses which less Co., 104 Ha Dupont De Nemours & v. E.I. suffered. (2004). However, giv P.3d 250
waii 90 have contin- plaintiffs would 209. [The full, the fact complete of this ease and en the resolution if press their claims ued to only made. appeal four of had been the instant involves truthful disclosures and full, fair by [plaintiffs on supra note those sixty original plaintiffs, see Reliance DuPont, in fact disclosure provided and of the facts are a concise version 54(b) entry as to may of final provides part direct the in relevant Rule 2. HRCP claims or all of the more but fewer than that: one or only upon express parties an determination pre- relief is than one claim for action, When more claim, upon delay just coun- reason for in an whether as there is no sented terclaim, claim, cross-claim, entry judgment. third-party or express or direction for an involved, multiple parties the court are when 284 forthcoming, injury plaintiffs’ resulted in in of DuPont on all of the
was
favor
compensa-
the form of settlement for lower
light
disposition,
in
of our
claims.
adequate
tion than
was
would otherwise
only
motions,
three
we recount
two of the
have been available.
especially upon
motion
focusing
concern-
“appropriate
ing
plaintiffs’
support
asserted
lack of evidence to
recovery for
is the
measure of
said conduct
damages.
The other motion for sum-
plaintiffs’
difference
actual to-
[the
between
mary judgment
in
is addressed
section
infra
losses,
crop
damages (e.g.,
plant
tal
soil
plain-
as it
III.A.2.
becomes relevant
injuries,
positions
market
lost eco-
lost
contentions.
tiffs’ other
amount,
any,
if
advantage)
nomic
and the
previously
from DuPont. Accord-
received”
Summary Judgment
Motion for
as to
counts,
ingly,
plaintiffs alleged
ten
wit:
All Claims
COUNT
CAUSE OF ACTION
spoliation
1
intentional
negligent spoliation
of evidence
January
On
DuPont filed a motion
'
2
of evidence
summary judgment
plaintiffs’
for
on all
3
fraud
misrepresentation
Relying
claims.
on
court’s
answers to
4
fraudulent
negligent misrepresentation
5
questions
certified
the United States
non-disclosure
Court
District
for the
of Hawaii in
District
prospective
intentionalinterference with
business
advantage
Co.,
Matsuura v. E.I. du
Nemours &
Pont de
conspiracv
(2003)
civil
102 Hawai'i
In their
prospective
where
terference
economic
advan-
(Count 7),
pjlaintiffs
tage
DuPont for
[the
sued
millions of
and violation of constitutional
(Count 9).
defective,
claiming
rights
dollars
Benlate was
it
A written order was en-
plaintiffs’
February
granting
part
financial
[the
interest
tered on
they
denying
part
summary
claim
DuPont’s
state-
the motion for
kneiv/believed
concerning
judgment.
Specifically,
ments
the nature of
court
circuit
and/or
granted summary judgment
non-existence of
Benlate
as to the non-
[a]dverse
[scienti-
claims, i.e.,
1, 2, 7,
false,
fic d]ata were
and that
fraud
Counts
knew/be-
lieved
Benlate
denied
as to the fraud
[a]dverse
[scientific
(Count
And,
claims, i.e.,
3),
existed.
d]ata
record of this
and deceit
fraud
fraud-
(Count
demonstrates,
4),
exactly
misrepresentation
negligent
that is
what
ulent
[c]ourt
Hawai'i-Kona,
prospective
interference with
economic advan-
answered
this court
Exotics
Co.,
tage.
2. The Motion for
testimony
plaintiffs
did
have
Inability
Based on
Plaintiffs’
proof
required
their burden of
to sustain
Damages
Prove
damages, stating that:
proper
measure of
February
On
DuPont filed a mo
plaintiffs’ underlying product
[The
tion for
based on the
lawyers[,
expert reports,
in their
action]
Rely
plaintiffs’ inability
prove damages.
infra,
opine
about the
did]
discussed
ing on E.I.
de Nemours &
v.
DuPont
Co.
to the determination of the
relevant
factors
Evergreen Foliage,
Florida
744 A.2d
compromise
plaintiffs
of each
value
fair
(Del.1999),
Economy
v.
&
settlement,
Richardson
Fire
the date of the
nor how
case on
Co.,
Casualty
109 Ill.2d
92 Ill.Dec.
applied—to
each
those factors would
(1985),
state,
a. the choice remedies gation. Such litigation alternative to court only brings finality not to the uncertainties February 28, order, In its 2005 parties, of the but is consistent with this expressly circuit court concluded that policy amicable, efficient, court’s to foster remedies—(1) plaintiffs have two available to inexpensive disputes. resolution of (2) agreements rescind the settlement or to turn, it advantageous judicial is agreements affirm the adminis- and sue for fraud. raise, error, government tration and point as a thus to and its the circuit court’s conclusion was erroneous. citizens as a whole. however, They, provide no argu discernible Odum, 152, 161-62, Amantiad v. 90 Hawai'i any authority ment or respect cite to with (1999) (internal 160, 977 P.2d quota 169-70 position. repeatedly This court has omitted). tion marks and some citations We obliged announced that it is to address have further agree stated that settlement appellants matters for which the have failed (1) simply species contract,” ments “are a present arguments. discernible Hawaii Wong Cayetano, 462, 481, v. 111 Hawai'i 143 Appellate (HRAP) Rules of Procedure Rule (2006) 1, (citations omitted), P.3d 20 and, (the 28(b)(7) (2007) opening brief must exhib (2) thus, governed by are principles of con argument,
it containing “[t]he the contentions law, tract State Farm Fire & Cas. Co. v. Pac. appellant points presented on the Rent-All, Inc., 315, 323-24, 90 Hawai'i 978 therefor, the reasons citations 753, (1999) P.2d 761-62 on”); (construing a authorities ... settle relied Taomae v. Lin gle, 245, 257, 1188, agreement ment 108 under principles). Hawai'i 118 P.3d contract 1200 (2005) (stating may Consequently, contracts, disregard as with settlement points of appellant error when the agreements fails to by induced either a fraudulent or present arguments supporting discernible misrepresentation material by are voidable assignments error); those Norton v. Ad party the defrauded because he or she has Court, 197, min. Dir. 80 Hawai'i freely bargained but has been induced to (1995) (same). 908 Thus, by settle party. the other Fujimoto v. Cf. alone, this basis we could decline to address Au, 116, 157, Hawai'i 19 P.3d light this matter. plain (2001) (stating general rule “if a tiffs’ next concerning contention proper party’s misrepresentation of assent is in measure of in the instant fraud by duced either a fraudulent or a material action, preliminary question a regard arises misrepresentation by the other ing the plain remedies afforded a defrauded recipient justified which the in relying, the tiff in Hawaii. (inter by contract is recipient” voidable quotation marks, citations, nal
This court has repeatedly original an omitted)). nounced that: words, brackets .In plain other tiff rule, who was induced to general As a enter into a properly settle executed agreement ment precludes by settlement litigation future fraudulent or material parties. Indeed, misrepresentations may its agree- “obtain a decree re scinding ment cancelling or agreement ab ini tio.” Murphy, Peine v. agreement terminate, is an 46 Haw. means (1962) (citations 377 P.2d concessions, omitted); of mutual a claim which is see disputed good Hong Kong, also unliquidated. Haw.App. faith or It is an settling (stating amicable method of or that “[t]he resolving bona fide differences or rescission of a uncer- contract for fraud the in tainties and designed prevent restitution”) part ducement is of law put (citations an litigation. omitted). end to The result of rescission is to parties 15A return both Compromise quo Am.Jur.2d status Settle- (1976). ante, i.e., § ment each acknowledge We side is to be restored to the property legal well-settled rule that enjoyed law favors the attributes that it resolution through of controversies com- before the contract per was entered and promise or settlement rather than liti- formed. As the United Ap States Court of
289 (the peals for the Ninth Circuit Ninth Cir District Court for the United States Dis cuit) has presented stated: trict of Delaware was with the whether, law, plain issue under Delaware “a
Rescission reverses the fraudulent transac-
negligence
tiff
a
who has settled
suit for
parties
tion and returns the
personal injuries may affirm that
they occupied prior
release and
to the fraud.
It re-
quo
a
action
on
stores the status
ante. Under true
institute
cause of
based
fraud.”
rescission,
plaintiff
Although acknowledging
Id. at 351.
lack
returns to the de-
subject
transaction,
issue,
plus
precedent
fendant the
of the
on the
Delaware
the court
any other benefit
proceeded
analyze
received under the con-
to
Delaware law based
tract, and the defendant
to
primarily
involving
returns
on
election of reme
cases
plaintiff
furnished, plus
the consideration
Focusing
dies under contract
Id.
on the
law.
interest.
earlier
of the
Delaware decisions
Court of
Chancery Hegarty
in
v. American Common
Inv.,
Ambassador Hotel Co. v. Wei-Chuan
(Del.Ch.
Corp.,
wealths Power
Second, minority may courts assume tort claim elect rescission and restora or, damages alternatively, “the in quo the action for fraud are too tion to the status ante recovery speculative may bring because must be measured an action for the personal injuries special, expectancy, damages on the basis of the reten sus or damages, proceeds.” if any, tained. ‘The measure of tion of the settlement Id. at 465 (footnote omitted); inextricably the action for fraud and deceit is see also Matsuura v. Al (9th Bird, 1006, question bound with the and the & F.3d 1008 & n. 4 ston 166 Cir.1999) injuries (finding analysis per nature and extent involved DiSabatino’s rejecting reasonings underlying tort claim suasive and behind which was set ” (quoting Mackley tled.’ Id. v. Allstate Ins. other courts that restricted a defrauded rescission). Co., Indeed, (Mo.Ct.App.1978)) plaintiffs remedies to 564 S.W.2d 636 omitted). However, (original majority jurisdictions brackets dis that have consid III.A.l.b., affording cussed section the DiSa- ered the issue have also favored infra rejected reasoning court the choice of either of the batino such two weight authority, concluded that for fraud are eon- there remedies.7 See, Kasenetz, Co., (2d (2003); e.g., Turkish v. 27 F.3d Richardson v. Econ. Fire & Cas. 109 Cir.1994) law); (applying Ill.2d N.E.2d New York Authentic 92 Ill.Dec. Millworks, USA, Indiana, (1985) (citing Group Architectural Inc. v. SCM a collection of cases from Inc., Williams, York); Michigan Siegel Ga.App. 586 S.E.2d New fore, supports plaintiffs’ asserted fraud the conclusion of the circuit in the instant case allow defrauded action. tort the traditional contract reme (1) contract, rescinding proper
dies of either b. measure of received, returning any being benefits The circuit court concluded when a quo affirming returned to status party elects to affirm the settle- defrauded contract, benefits, retaining and seek agreement ment and sue for “the rem- ing damages. (i.e., edy damages) ... is the [ ] available fair *14 compromise value the claim at the time Additionally, there exists when of of added.) (Emphasis The the settlement.” or two more concurrent but inconsistent rem however, argue plaintiffs, the circuit edies, here, equitable elec doctrine of erroneously the amount of “limit[ed] provides tion of remedies that: damages to the difference be- recoverable elect, plaintiff need not and cannot be [A] for, actually [they] settled and tween what compelled to elect inconsistent between for, they could have settled had there what If, during remedies the course of trial. limitation, according been no fraud.” Such however, plaintiff unequivocally has plaintiffs, accepted in to the “has never been knowledgeably proceed one of elected contrary, jurisdiction. To the the Ha- pursuing, he or he or remedies she is continually [a]ppellate [e]ourts wai'i have may be she barred recourse to the other. remedy in fraud cases held that the desired precluding The doctrine acts as a bar to the he is to restore victim plaintiff seeking from an inconsistent rem- misrepresen- occupied but for the would have edy previous as a result of his or her (Citations omitted.) plaintiffs, tation.” conduct or election. thus, ruling the circuit court’s believe Inc., Query Realty, Cieri v. Leticia 80 Haw goal deviated from the of the available (1995) (internal 54, 71, 29, 905 46 ai'i remedy—to restore them to the former marks, citations, brackets, quotation and el occupied positions they but for DuPont’s omitted) original). lipses deprive [the deceit—and instead served to purpose of the election of remedies doctrine any possibility recovering of plaintiffs of prevent any remedy, “is not recourse which, likelihood, they could in all remedies, prevent but to dou alternative reasonably had the fraudu- have achieved wrong.” single ble recoveries or redress for a not occurred. The decision lent conduct § 25 Am.Jur.2d Election Remedies 3 of contrary established law (footnotes omitted). 665 Hawai'i, contrary proper out- In the instant did litigation, come dictated the facts agree- of their settlement seek rescission be set aside. and should now complaint. ments in their first amended DuPont, hand, maintains that on the other fact, wholly allega- complaint rested proper the “fair value is misrepresenta- tions of DuPont’s fraudulent adequate measure full of scientific data and tions and concealment inducement compensation of a fraudulent allegedly information that were vital to the claim, damages.” cap not a or limit on and is negotiations plaintiffs’ settlement (Internal quotation (Emphasis original.) Thus, product liability based on the claims. omitted.) In Du- emphases marks and other complaint, allegations of their view, Pont’s knowledgeably” “unequivocally is consistent agreements affirm measure [t]his elected to their settlement objective Consequent- general pursue an action for fraud. with plaintiff in the place the defrauded ly, appropriate measure is to we next examine the 730, 510, (1999); Burkey, v. 166 (Ind.Ct.App.2004); Sabbatis Ware v. State S.E.2d 733 N.E.2d 514 Co., 291, 329, 739, (2006); Kan. 311 P.2d App.3d Farm Mut. Auto. Ins. N.E.2d 332 Ohio (1957); Forming Ford, Inc., Bilotti v. Accurate Yarborough 320-21 307 S.C. v. Fields (1963); Corp., 39 N.J. 188 A.2d 30-35 (1992). 414 S.E.2d Mehovic, N.C.App. v. Mehovic position he been “but for” explained would have This court has further that: plaintiffs] fraud. Since [the claim their
settlement amounts were less than A distinction is made the law between proof required the amount of to establish were worth because DuPont had induced injured fact has sus- through them to settle certain fraudulent damage tained some and the measure of misrepresentations, their measure of dam- proof necessary jury to enable the to de- ages logically is their settlement what damage. termine the amount It is now amount would have been if there had been generally uncertainty held that the luhich no fraud. prevents recovery uncertainty toas It damage well-settled that all tort and not as to its fact of require amount. the rule that proven claims uncer- tainty as to the amount does not necessar- See, certainty. e.g., Weinberg reasonable ily prevent recovery interpret- is not to be Mauch, 78 Hawai'i requiring proof ed as no the amount (1995) (“[I]t is of the in an ... essence action *15 damage. The extent loss of plaintiff damages a suffer conse certainty must be with shown reasonable quence conduct, of the defendant’s and these any showing and that excludes or conclu- damages speculative conjectural cannot be or upon sion speculation mere founded (Internal quotation losses.” marks and cita guess. omitted.)); Marcos, tion see also Roxas v. 89 Co., Chung 594, 605, v. Kaonohi Ctr. 62 Haw. 91, 33, 1209, 141 n. Hawai'i 969 P.2d 1259 n. (1980) added) 283, 618 P.2d 290-91 (citing 33 a collection of eases for the same (citation omitted) (format and brackets al proposition). Specifically, in a fraud tered), abrogated grounds by on other Fran plaintiff “the must suffered substantial Enters., Inc., 234, cis v. Lee 89 971 Hawai'i damage, actual speculative.” not nominal or (1999). words, P.2d In 707 other the where Inc., Dodge, Zanakis-Pico v. Cutter 98 Haw established, damage fact of this court will 309, (2002) 320, 1222, 47 ai'i 1233 upon higher degree certainty insist of (citation omitted). emphasis “plain and The damages as to the amount of than the nature suing in required tiffs fraud are to show both permits, particularly of the case where the pecuniary suffered actual loss and uncertainty was caused the defendant’s damages that such are definite and ascertain wrongful Coney own acts. v. Lihue Planta able, Id.; speculative.” rather than see also Co., (1951). 129, tion 39 Haw. This Anderson, Hawai'i’s Thousand Friends v. 70 court, however, recognized has (1989) Haw. 768 P.2d problem of damages, [t]he how measure (“plaintiff must that he [or show suf she] cases, and how establish them in fraud pecuniary damage”). fered substantial The always a difficult person one since the compensation put plaintiff aim of “is to in has, defrauded because he or she have been had pursued action, alternative courses and he or she not been defrauded.” Zanakis- the results of those untaken courses there Pico, at Hawai'i 47 P.3d speculative. fore remain In 3 Restatement Crockett, (quoting 52-53, (Second) Ellis v. 51 Haw. (1977), of Torts discussion (1969)) (original 451 P.2d brackets problem damages proof appears un omitted). 549.[8] ellipsis § der In Comment to subsec (b) Damages pecuniary 8. Section entitled "Measure of for loss suffered otherwise as a conse- Misrepresentation,” provides Fraudulent that: quence recipient’s upon reliance (1) recipient misrepre- misrepresentation. The of a fraudulent damages (2) sentation is entitled to recover as in recipient misrepre- The of a fraudulent against pecu- an action of deceit the maker the sentation in a business transaction is also enti- niary misrepresenta- him loss to of which the tled to recover additional sufficient to cause, legal including tion is a of, give him the benefit his contract with the (a) the difference between the value of what he maker, proved if these are with rea- pur- has received in the transaction and its certainty. sonable it; price given chase or other value for (2) section, ina following ap [plaintiffs’ Matsuura claims due to their tion of that pears: bility prove either the fact or amount [the] certainty.” reasonable Id. with bargain plaintiff
When the has made a at 1125. defendant, however, with the situations in in arise which the rules stated Subsec- Uriz, Appeals In York Court of New (1), particularly
tion
that stated
that,
underlying
determined
where
claim
(a)
Subsection,
Clause
of that
do not
viability,
potential
no
there is no
has
compensation
just
afford
that is
and sat-
recovery
fraud in the inducement of set-
isfactory. ...
plaintiff
tlement because
would not be able to
frequency
of these situations has
any injury by
show
reason of abandonment
great majority
led the
American
entirely
claim. 95 N.E. at
of an
valueless
adopt
general
courts to
rule
broad
Uriz,
plaintiff, relying
alleged
giving
plaintiff,
in an action [for] misrepresentations, settled her claims for the
deceit,
bargain
his
benefit of
wrongful death of her husband.
Id. at 712.
cases,
making
in all
defendant
jury
plaintiff
found
favor
her
recovery in
that the normal measure of
appellate
fraud action but the
court reversed
actions of deceit.
charge
based
the trial court’s refusal to
Ltd.,
Factors,
Leibert v. Fin.
71 Haw.
action,
jury
order to maintain the
290-91,
(emphases
plaintiff
origi-
must demonstrate
her
added);
Zanakis-Pico,
see also
98 Hawai'i at
wrongful
nal claim for
death was valid
(cid:127)
(“In
320,
value is not uncommon.
make the settlement an honest one.” Id.
(internal
added).9
quotation
marks and citation omit-
F.3d at 368
ted).
damages!,
“[T]he measure of
there-
above,
As stated
DiSabatino dealt with the
(citation
fore,]
bargain.”
is the
of the
Id.
loss
question
plaintiff
permitted
whether the
was
omitted).
agreement
to affirm the settlement
and insti-
independent
Moreover, although
tute an
cause of action
based
the Ninth Circuit re-
jected
the court
holdings
answered affirma-
Automobile
Urtz and
tively.
F.Supp.
In declining
plaintiff
at 351.
that a
Underwriters
defrauded
must
other
prove
follow
courts’ limitation of remedies to
that his or her
claims
settled
had
alia,
based,
merit,
assump-
analyses
rescission
inter
on the
of both courts as to the
indicating
knowledge
plaintiffs
prove
9. Based on evidence
fact as to whether the
could
dam-
of the withheld evidence would have substantial-
ages.
ruling,
Id. at 368.
In so
the court noted
cases,
ly increased the settlement value of the
damages
speculative
that such
were "not so
including
comparable
evidence of
settlements of
damages
incapable
are
of calculation.” Id. at
larger
expert testimony,
amounts and
the Ninth
genuine
Circuit ruled that there was a
issue of
Id.;
original injury.”
determining damages
age
method of
are in ac-
for the
see also
York,
Living Designs
cord
and DiSabatino.
Slotkin v. Citizens Cas. Co. New
(2d Cir.1979),
denied,
Specifically,
explained
cert.
Urtz
F.2d
312-13
damages
measure of
449 U.S.
101 S.Ct.
injuries
product liability
sustained in the
ac
P.2d at 840
is a common-
683
plaintiffs
tort”);
Kyo
tions. To conclude as the
Holt
law
Von
v. Izumo Taisha
(1958)
impermissible
Hawaii,
it
have
would constitute an
Mission
Haw.
of
recovery.
(“Fraud
per
sense,
double
If this court were to
generic
especially
in its
as the
plaintiffs
mit the
to
comprises
retain the benefits of the
equity,
word is used in courts of
agreements
seeking
acts, omissions[,]
settlement
while
to re
all
and concealments involv
cover the actual
value of
duty
ing
legal
equitable
a breach of
or
liability claims,
product
plaintiffs
(Internal
would resulting
damage
in
to another.”
in
they
be
a better
than
would have
omitted.)),
quotation marks and citation
negotiations
been had the settlement
been
grounds by
other
Pau
overruled on
State v.
good
conducted
faith. Such a result would
(2002).
line,
100 Hawai'i
“qualified” ny jury aid the in the determination opinion to render an which as- is to provide and to a sists the trier of fact in its deliberations. of the issues involved [cjourt’s conclusion to be ruling violated sufficient basis for the [circuit both by jury by conjec- than of these tenets. the rather established drawn testimony speculation. Expert ture is and omitted.) (Emphasis any testimony, and like the conclusive retort, DuPont In contends jury may accept reject or it. the fair a determining compromise value of 61, 67, MoHshige, v. 52 Haw. Bachran complex products liability taking into (1970) (citations omitted); P.2d see all the and consideration facts circum- Batangan, also State v. 71 Haw. particular particular at a stances of a case (1990) testimony (“Expert assists time, point complicated undertaking is a by providing of fact a resource trier something clearly beyond ability of ascertaining truth in areas outside relevant lay Obviously, jury a jury. a should not ordinary laity. Specialized the ken knowl- of speculate in an area where it could not be edge subject expert proper is the of expected knowledge or have sufficient by testimony knowledge possessed is experience. proper expert And without average expert’s lacks trier fact who testimony, jury speculating a would be be- skill, experience, training, or education.” simply a jury cause does not (Internal quotation omit- marks citations experience knowledge or to determine the ted.)). compromise complex, prod- fair value aof malprac- It in medical is well-settled liability ucts action. cases, generally predi- tice which have been testimony why expert The reason is re- negligent physician of a cated on the failure because, quired special gen- unlike is requisite degree or surgeon exercise typical action, eral in a tort fair treating operating or on a skill and care is value not based patient, person, judgment reasonably prudent of a must negligence be decided question reasonably prudent a but the medical standards reference relevant reasonable, attorney. Clearly, a what plaintiff carries the of care for which the prudent attorney knowledgeable and through expert proving medical burden complex products in a do case testimony. The of care to which standard beyond experience lay jury. of a to adhere must be a has failed doctor (Emphasis original.) testimony by expert because established of Evidence Hawaii Rules requisite jury special generally lacks (HRE) (1993)provides that: Rule 702 training, knowledge, technical and back- scientific, technical, special- If or other applica- ground be able to determine the trier fact knowledge ized will assist the of an the assistance ble standard without or to determine understand evidence expert. issue, qualified fact an witness Peebles, 298, 893 P.2d 78 Hawai'i Craft skill, knowledge, experience, expert by (citations quota and internal may testify training, education thereto or omitted). As this court has stat tion marks opinion in the form of an or otherwise. ed, issue determining the of assistance case[,] ordinary negligence [i]n fact, may trier of the court consider jury there has been can determine whether validity scienti- trustworthiness duty to plain- a breach of defendant’s analysis employed technique fic or mode of everyday experi- tiff the basis of their proffered expert. judgment. The ence, observations^] Moreover, that: court has declared require ordinary negligence case will not ac- technical, expert to delineate subject opinion evidence matter is Where ceptable unacceptable from standards not of common scientific or medical and negligence in the medical knowledge, testimo- care. observation case, lay jurors prepared ill to evaluate ny are into evidence. Such testimo- allowed *22 300
complicated purpose plaintiffs for the technical data would have received had there been determining professional of con- whether no fraudulent conduct at of settle- the time to a reasonable guidance legal experts. duct conformed standard ment entails from of care and is a rela- whether there causal Indeed, parties a trial settle avoid tionship duty between the violation of a uncertainty the merits because of the of Therefore, injury patient. and an high the litigation. the outcome and costs of expert opinion generally is evidence re- Gossinger Apartment v. Ass’n Owners of of jury quired to aid the in its tasks. Wai, 424, 412, Regency Ala 73 Haw. 835 of Char, 371, 377, v. 79 903 Bernard Hawai'i (1992) 627, (noting public policy P.2d 633 676, (citations, brackets, (App.1995) P.2d 682 finality negotiated “favors the of settlements omitted); emphasis v. and see also Carr pro avoid the costs and uncertainties of Strode, 475, 489, 79 904 500 Hawai'i P.2d (citation omitted). litigation”) tracted In ev (in (1995) claim, expert an informed consent settlement, ery upon agreed the un amount testimony required medical is the establish scenario”., doubtedly is not the “best case materiality of the risk of harm that in fact side, either rather of but is occurs); Queen’s Ctr., Phillips v. Med. 1 respective positions their to avoid multi the (in (1980) 17, 18, Haw.App. 366 ple might of risks trial where face wrongful of the case death Naturally, case scenario.” com “worse the wife, expert testimony medical as to the promise of range a claim be at will different of necessary cause death sustain case points in different time based- what is against hospital physicians). defendant and known, foreseeable, reasonably at the time Clearly, jury lay persons generally of lacks compromise, including of the the of the state knowledge the to determine the factual is- respect, In many are varia law. there causation, skill, degree of sues medical the of experienced lawyers routinely bles that con knowledge, experience required and of the weighing potential sider risks and physician, of breach the medical in going inherent liti rewards forward with of standard care. gation against certainty of a compromise solution. This has enumerated some of eases, malpractice
Unlike medical determining these factors in a set whether attorneys involving against cases actions faith, in good tlement was made as: such rarely questions of “have involved the neces sity admissibility expert testimony, (1) of type difficulty proof of case and of probably trial, because such cases the cour e.g., motor rear-end vehicle colli t expert subject.” itself sits as an on the sion, Col product malpractice, liability, medical Greenstein, etc.; (2) lins v. 39 n. Haw. approximation the realistic total of (1979) omitted). (citation (3) P.2d 283 n. seeks; plaintiff court, however, recognized This that: strength of the claim realistic likelihood of his or her probably given More attention success will (4) trial; predicted expense litiga expert the future to the need for evidence. (5) tion; many degree types letting In relative fault situations such as (6) tortfeasors; settling the amount con the statute of run suit limitations before a (7) filed, paid claims; testimony lawyer sideration to settle the is no is needed. policy solvency insurance limits and problem interpretation When one of tortfeasors; law, joint relationship likely there is more to be a resort among parties it explain whether is condu evidence the matter to conduct; wrongful cive collusion or jury. (9) any other evidence that the settlement Id. 40 n. 595 P.2d at n. 9 injuring aimed at the interests of a non- added). Although this does not case involve settling tortfeasor or motivated other attorney suit, malpractice an prin- stated wrongful purpose. ciple in Collins that an concerning issue Adams, interpretation requires expert Troyer of law assis- 102 Hawai'i view, (2003). applicable words, tance is here. In our other whether determination of the fair value what the fair settlement value been would have *23 greater effect, moving party than the actual itself a In the is dressed. takes settlement nearly impossible matter that would be for a the or that he she is entitled to lay person guidance prevail opponent determine without because his or her has no Moreover, expert legal testimony. from the valid claim for relief or defense to the Accordingly, moving party fact that the settlement action. the has was less than the potential recovery underlying product identifying por- in the the initial burden those of plain- demonstrating cases does not mean that the tions the record the ab- of genuine tiffs suffered aas result of fraud. sence a issue material of of fact. Rather, damage moving party may discharge the fraud claim would be the his or by demonstrating difference the her burden ] between fair settlement value thatf if trialfj plaintiffs’ absent fraud and case went the amount of the there would be no competent support actual judgment settlement. As one court indicated: evidence to a opponent. Corp. his or her Celotex proposed may fact that a settlement for Cf. Catrett, v. 477 U.S. 106 S.Ct. 91 only potential amount to a fraction of the (1986) (a party moving L.Ed.2d 265 ... not, recovery itself, does in and of mean summary judgment under Federal proposed grossly Rules of Civil Procedure Rule 56 need not inadequate disapproved. and should be In support his or her motion with fact[,] reason, theory, there is no in at least affidavits negate or similar materials that his or her why satisfactory a settlement could not claims, opponent’s only point but need out amount to a hundredth or even a thou- that there is [an] absence evidence to part single percent sandth of a of claims). support opponent’s For if no potential recovery: could evidence be mustered to sustain the Litig., In re Warner Commc’ns Sec. 618 nonmoving party’s position, a trial would (S.D.N.Y.1985) F.Supp. (quoting be useless. City Corp., Detroit v. Grinnell 495 F.2d summary judgment a motion for When (2d Cir.1974)) (ellipsis 455 n. 2 and other supported, is made and omitted). citations party may upon an adverse not rest reasons, question For these same allegations mere or denials of his or her misrepresenta- whether DuPont’s fraudulent pleading, response, by his or her but damage tion caused provided affidavits as otherwise by preventing receiving case from them specific HRCP Rule must set forth compromise “fair value” of their claims is one showing genuine there is a guided which the trier of fact must be facts issue trial. If he or she does not so by expert legal testimony. Accordingly, far we respond, summary judgment, appro- if hold that the circuit court did not eir in priate, against be entered him or shall concluding “expert lawyer testimony di- her. factors, rected to the numerous 56(e) added). applied and how would have to each HRCP Rule words, [p]laintiff required. party opposing s case” is other motion summary judgment discharge cannot plaintiffs’ d. to meet conclusions, by alleging his or her burden failure proof burden as a matter laiv trial nor is he or she entitled to a on the hope produce basis that he can some We next address whether motion evidence at that time. On for sum- plaintiffs produced sufficient evidence—in mary judgment, the evidence viewed expert testimony—to form defeat sum light non-moving most favorable to the mary judgment. Preliminary, we recite the party. legal principles governing well-settled mo summary judgment—specifically,
tions for Young Planning County Comm’n of Kauai, 400, 407, 974 P.2d Hawai'i (1999) (internal marks, citation, challenges quotation motion [a] omitted) very legal sufficiency original (emphases existence or brackets added). Moreover, evidentiary stan the claim or to which it is ad- “[t]he defense required tino, Indeed, moving party F.Supp. dard of a in meeting at 355. such factor requires application its princi- burden on a motion of economic reasonably depends moving party ples on certain fu- whether the will ascertain income/profits par- ture in a proof have the burden of the issue at and, thus, Bank, Russell, market, experts trial.” ticular economic Ocwen Fed. FSB v. likely necessary jury aid the (App.2002) Hawai'i (citation omitted). determining underlying tort moving party Where *24 least in the context of those economic defendant, how is the who does not bear the value, damages affect the settlement if at all. trial, proof summary ultimate burden of judgment proper is non-moving when the plaintiffs’ expert reports economic party-plaintiff (prepared by David J. Weiner of Valvoulis showing to make a Weiner) to estab- McCully revealed that sustained
fails
sufficient
lish the existence
an element essential
damages
$11,847,889.00,
in the sum of
Will-
of
case,
party’s
to that
and on which that
$3,278,202.00,
man in the sum of
Isa in the
proof
will bear the burden
$967,222.00,
trial.
sum of
in
and the Takas
the sum
situation,
In such a
can
genu-
there
be no
$649,871.00.
Weiner calculated the total
any
fact,
ine issue as to
material
since a
plaintiffs underlying product
value
each
complete
proof concerning
claim,
failure of
an
liability
beginning
alleged
nonmoving party’s
essential element of the
day
through
first
of Benlate loss
June 2005—
necessarily
case
all
years
renders
other facts im-
ten
after their settlements.
moving party
material. The
reports
to
entitled
submission of the economic
does
judgment
negate
as a matter of
because
plaintiffs
law
not
the fact that the
are also
nonmoving party
required
has failed to make a
attorney
suf-
to adduce evidence—via
showing
ficient
expert
testimony—as
on an essential element of
to the factors that
respect
her case with
to which she has the
determining
must be considered
when
proof.
burden of
compromise
plain-
fair
value
each of the
regard,
plaintiffs
tiffs’ cases.
In that
State,
274, 284,
Haw.App.
Hall v.
reports
presented
attorneys, desig-
from five
(1988)
added) (internal
experts,
litigated
nated as
four of whom had
omitted).
quotation marks
and citations
underlying product
liability
actions.
Bearing
foregoing principles mind,
in
we
(1)
They
Parsons,
Wayne
along
D.
were:
who
hand, i.e.,
now turn to the issue at
whether
(a
attorney)
A.
with Kevin Malone12
Florida
plaintiffs’
expert reports
“legal[ly]
are
(2)
Takas;
represented Isa and the
J. Rich-
against
to sustain their
suffieien[t]”
claims
(3)
Peterson,
Willman;
represented
ard
who
trial[,]
DuPont such
“if the case went to
Pavey,
negotiated
Judith
who
Willman’s set-
competent
there would be ...
evidence to
(4)
tlement;
George
Playdon, Jr.,
W.
who
support
judgment”
in
Young,
them favor.
represented McCully;
Jeffrey
S.
(internal
amount of
cannot
[The
[plaintiffs’
strength
of
terms
of
reasons,
variety
meet
burden for a
of
liability
strength
of
claims as well as
being
they
pertinent
one here
damages claims.
the client
the clients’
simply
prove
correct measure
cannot
If
offer, we woidd
rejected their settlement
way they
damage
fraud
based
of
prepared to take the claim be-
have been
They
positioned
no
have
this case.
have
event,
any
knowing the
jury,
and
expert testimony
provide
to
to
assistance
fore
have made
documents] would
[concealed
jury
to
fair com-
[the]
on how evaluate
stronger
taking
when
plaintiffs’ case
promise
plaintiffs’]
of each [of
value
the client
an individual case
trial
claims,
pertinent
fac-
what
if
rejected DuPont’s settlement
and
tors would be
how
would
offer.
applied in this
nor what methodolo-
added.)
(Emphases
those
gies could be used
determine what
that,
opined
had he and
report
Peterson’s
be.
amounts should
client, Willman, had
infor-
the concealed
his
omitted.)
(Emphasis
mation,
definitely
“it
have a sub-
most
would
analysis
of liabili-
difference
[their]
stantial
stated,
previously
although the determi-
As
against DuPont.
ty/causation in the case
damages is
ultimate
to be
nation of
an
issue
information,
whole,
taken as
fact, damages
by
must be
the trier
decided
strengthened
Willman’s
greatly
Mr.
have
on
loss
rea-
based
evidence
shows
and the
that Benlate was defective
claim
certainty
speculation.
and
sonable
eliminates
damage
loss.” Peter-
crop
of his
cause
Chung,
We
litigation
some of
experience
Portnoy.”
eral
of Mr.
lengthy
whom had a
track
of being Consequently,
report,
record
Portnoy
his
ex
nurserymen
farmers,
plained
litigation
successful
general
other
and settlement
practices
who did not. There were individual causa-
and concluded that “had
been
[he]
tion
damages
figured
representing
claimants,
issues
also
these
the settlement
However,
into our settlement evaluations.
value of the cases would have been dramati
say
impacted
I can
cally
without hesitation that had the
wrongfully
had the
withheld
previous
all
finding
trials
resulted in
information been available” and
“would
against
negligence
prod-
significantly
sum,
DuPont on
In
plain
increased.”13
defect, my
uct
experts
evaluations
our
essentially
opinions,
client’s
tiffs’
offered
two
wit,
higher because,
claims woidd
if
plaintiffs
have been
and/or
typically,
stronger
attorneys
it
is true that
had known about the concealed
(1)
case,
evidence,
they
the more value both sides
would not have settled and
assign
any
damages
proceeded
claim.
would have
to trial and
interrogatories,
jury
their answers to DuPont’s
and the
awarded
in that
plaintiffs
Stanley Roehrig,
also stated that
action.”
record
does not reflect
plaintiffs
counsel for the
in another Benlate
Roehrig
expert report.
an
submitted
None-
Farms,
product liability
Kawamata
Inc. v.
theless, assuming
permitted
that he would
Prods.,
Agri
United
86 Hawai'i
948 P.2d
testify, Roehrig’s testimony would be directed
(1997), "may
testify regarding
1055
be called to
only
jury
as to
did
what another
in another case.
action,
the nature of
claimed in that
(1999) (“Al
1, 14,
plaintiffs’
cases
Hawai'i
valuation
would have
“substantially higher.”
though expert testimony may be more infer
been
witnesses, in
ential than that of fact
order
Viewing
light
in the
evidence
most
summary judgment[,]
defeat'a motion for
an
plaintiffs,
nonmoving
favorable to the
as the
expert opinion
be more than a concluso-
must
Baiitista,
party, Lau v.
61 Haw.
ry
legal
assertion about ultimate
issues.”
(1979),
agree
the cir
we
(Internal quotation marks and citation omit
implicit ruling
cuit court’s
see,
ted.));
e.g.,
Corp.,
v. Brunswick
Zelinski
have not demonstrated the existence of a
(Fed.Cir.1999)
(ruling
185 F.3d
genuine
of material fact
issue
as
properly
that the federal district court
char
summary judgment.
to defeat
As indicated
patent attorney expert’s statement
acterized
above,
attorney
plaintiffs’
experts merely
conclusory
the statement
an
because
presented conclusory opinions that would do
explanation);
assertion without further
Phil
jury.
importance
little to assist a
Of crucial
lips
Polymers
Petroleum Co. v. Huntsman
attorney experts
the fact
that none of the
(rea
(Fed.Cir.1998)
Corp., 157 F.3d
any
testimony
provide
opinion
as to what
soning
conclusory expert
declarations
specific settlement factors were or should be
of facts
the conclusions
devoid
settling
plaintiffs’
considered in
each of the
genuine
reached fail to raise a
issue of
were
underlying product
liability cases and the
summary judgment);
material fact to resist
those
evaluation
how
factors would have
(Tex.
Arce,
Burrow v.
235-36
S.W.2d
been altered had
known about the con
1999)
attorney expert
(holding that the
affi
Although
cealed evidence.
stating
davit
that he considered the relevant
jointly, they
have filed them claims
each have
facts and concluded that
settlements
DuPont,
separate
against
and each of
claims
conclusory be
were fair and reasonable was
individually
them claims must be
established.
explain why
cause he
“not
the settle
did
experts
explain
did not
DuPont’s
how
fair and
for each of
ments were
reasonable
plaintiffs’
conduct affected the
evaluation
*27
added);
[plaintiffs]”) (emphasis
the
Griswold
more,
they
such that
settled for
would have
757,
Kilpatrick,
WashApp.
plaintiff
each
claimed as his
in
what
(the
246,
expert
plaintiff’s
248-49
testi
product
liability
at the
he
the
cases
time
that,
mony
delay
prosecuting
in
but for the
recovered,
settled and what he
and how the
the
the claim
have settled for a
would
apply
plain
settlement factors would
each
conclusory
larger
speculative
sum was
expert
tiff’s case.
It is not sufficient for an
genuine
that,
and therefore insufficient to create
simply
that he or she believed
state
legal malpractice
of material fact in a
known,
issue
had the concealed evidence been
the
ease).
The unsubstantiated conclusions
greater
settlement value would have been
plaintiffs’ experts
to raise
are insufficient
the existence of the concealed evi
because
genuine
fact that
strengthened
liability aspect
issue of material
would
dence
Tire, Inc.,
summary judgment.14 The circuit
litigation.
preclude
See Acoba v. Gen.
summary judgment,
reviewing
in
an award of
14. We are unconvinced
the dissent’s bald as-
fact,
that,
principle
negate
compromise
as the
if the 'fair
val-
such
does not
"[e]ven
sertion
acknowledges,
expert
calculating damages,
affidavits
even
that
ue' is used as a basis for
dissent
p]laintiffs
sufficiently
at
include the
basis and the
have
identified 'com-
“must
least
[the
factual
process
reasoning
promise
put
compromise
the conclusion
the 'fair
val-
which makes
factors’ to
i.e.,
issue,"
summary
creating "genuine
viable in order to defeat a motion for
ue’ in
issues of
added.)
(Internal quota-
prior
judgment.” (Emphasis
material fact as to the fairness of the
settle-
omitted.)
Op.
and citation
Id. at
Dissent
at
15. The P.3d 731 that the cir- the Federal Rules of Civil ruling cuit substantially court’s Procedure HRCP,” exceeded the bounds of are reason similar to the disregarded principles parallel rules or "this court can of law or look to federal practice (Internal plaintiffs’ guidance." quotation to the law for substantial detriment. marks First, that, omitted.)). plaintiffs the maintain and citation at the same asserting Finally, plaintiffs argue time DuPont proper they prej- was the the were meas- value, damages compromise ure of attorney-client was the fair udiced because DuPont asserted it right privilege argue regarding analysis reserved the damages plaintiffs’ to that such their DuPont, however, speculative. underlying product liability were that, contends cases. the law, controlling because attorneys there is no discussions between Hawai'i DuPont and its right argue it reserved the minority to later have no relevance to the the determination of the fair damages plaintiffs provide that settlement fraud settlement value. are inher- no ex- Nonetheless, ently speculative. planation plaintiffs they prejudiced by the as to how were do explain privilege. how DuPont’s DuPont’s assertion of reservation would Second, prejudice plaintiffs argue them. the they prejudiced indicated, were previously DuPont’s parties inconsistent As the had sub- position throughout litigation this that it reports by "would mitted their final the time Du- paid any plaintiffs' never have brought more to settle the Pont its motion for settlements”; paid claims than was in fact plaintiffs’ inability prove based on the ages. to dam- again, plaintiffs explain they the did not how The circuit court had also made clear that prejudiced by were parties' experts DuPont’s assertion and such the would not be allowed to assertion testify beyond is irrelevant to the respective determination of the on matters their re- Third, appeal. plaintiffs issues in ports. this the con- Clearly, summary judgment.17 for possibility of the motion [circuit ... [T]he court sua the circuit this is not a case where a limited “settlement imposing [e]ourt that could not an outcome sponte rendered remedy parties to the fraud” unknown was parties. expected have been foreseeable under Hawaii law and was not pjlaintiffs obtained their at the time [the opportuni importantly, the More diseovery[.] reports, and answered i.e., seek, their ty plaintiffs allow now that, plaintiffs request Consequently, regarding opine experts opportunity [cjourt “[sjhould ultimately adopt the absent compromise of the case the fair value prevailing differential as settlement them, HRCP available to via was i.e., compro- fair damages,” 56(f) measure (2007), the time the circuit Rule fraud, they “be absent the should mise value for sum considering DuPont’s motion was (on remand) 56(f) to make given opportunity Rule states mary judgment. HRCP purpose.” appropriate record for such an that: differently, believe
Stated the affidavits of appear it from Should it and “not foresee- because was “unknown” party the motion that the party opposing adopt circuit court able” that the present by affi- reasons stated cannot for as the measure of compromise fair value party’s justify the facts essential to davit actions, their damages in fraud may ap- opposition, the court refuse legal remanded to allow their case should be judgment may order a plication or opin- experts opportunity present an their be ob- permit continuance to affidavits compromise regarding the fair value depositions ions to be taken or dis- or tained may the fraud. other covery the case absent had or make such to be just. as is order ease, a motion In the DuPont fried instant 56(f)—like added.) fed- Rule its summary asserting (Emphases judgment, Pro- counterpart, Federal Rules Civil “fair eral limited to the plaintiffs’ were (FRCP) 56(f),—provides a Rule tort cedure of their released value” litigants to seek a continuance opposi mechanism for time of settlement. In claims at the they judgment summary when thereto, plaintiffs maintained—as or avoid tion justify essential facts” to discover up “need[ ] the time DuPont filed the had Hawai'i, v. State summary opposition. their Hall subject judgment—that motion for (9th Cir.1986) (stating that so restricted 791 F.2d should not be 56(f) con- empowers the court to Rule extended to the FRCP and should be summary judg- deny a motion for giving tinue or released claims. value of their to discover opposing needs plaintiffs, ment “if the we of the doubt benefit (ci- justify opposition) facts” to theory essential DuPont’s presume that omitted); v. Consol. clear, also Stallard raised, only tation see became either first Maui, Inc., 103 Hawai'i motion for filing of its (2004) (“As substantially said, are Therefore, hardly [FRCP] it can judgment. HRCP, look to federal case contend, we “not similar to the it was *29 Rule purpose of guidance.”). The law for the circuit court to conclude foreseeable” for 56(f) safeguard provide an additional the is “to of would be that the measure grant of premature or against improvident an value, especially light of fair Motors judgment.” Price v. Gen. summary by DuPont in its arguments advanced the mistakenly "[t]hat [the the fact states that until and was not "[i]t 17. The dissent contends order, put 28, [i.e., may on notice of Du- pjlaintiffs have been February the order 2005 the nothing do with the position ... has to summary judg- Pont's granting motion for DuPont's aware of ment,] pjlaintiffs were not made pjlaintiffs [the made aware of fact that were [the be that would response specific standard the specific which their standard to the 28, February 376-77, 2005 adopted court until the Dissenting Op. at 172 be held.” (internal added) quotation (emphasis order.” Id. the dissent fails to at 1058-59. majority opinion omit- placed citation to plaintiffs were marks and ted). take into account Indeed, infra, plaintiffs [DuPontj's damages—at as indicated position on notice of on prevails on its DuPont wait until after for cannot DuPont filed its motion the latest—when summary judgment. remedy. Rather, theory baldly an alternative to seek stated the dissent 308 (inter (footnote 162, 164 (1st Cir.1991) 1550, (10th Cir.1993)
Corp., 931 F.2d
F.2d
1554
998
omitted).
omitted);
Josué,
416,
quotation
nal
marks and citation
also
87
at
see
Hawai'i
(“A
Moreover,
P.2d at
958
538
court’s decision
[circuit]
deny
request
pursuant
to
a
for continuance
applied
spirit
rule
be
a
of
should
with
[t]he
56(f)
HRCP
to
Rule
will
be reversed
liberality. Although discovery
need
be
(Citation
absent an abuse of discretion.”
dismissed,
complete before a case is
sum-
omitted.)).
mary judgment
proper only
is
if the non-
adequate
movant has had
time for discov-
Here,
request
rather than
a continuance of
56(f)
end,
ery.
party
To this
Rule
allows a
hearing
permit
“to
to
affidavits
be ob-
request
delay
summary
granting
to
a
depositions
discovery
tained
to be taken or
judgment
party
good
can make a
if
be
...
to
had or
such
order
[to seek]
other
showing
postponement
56(f),
faith
just,”
HRCP Rule
con-
ruling would enable it to discover addi-
contrary
tinued to
position
assert
might
tional evidence which
rebut
damages, disregarding
DuPont’s
and
showing
genu-
movant’s
the absence
a
fact
might
per-
that the circuit court
party
ine issue material
fact.
adopt
suaded
DuPont’s view of the meas-
specific
required to show what
fur-
facts
Having
of damages.
request
ure
failed to
a
might
discovery
ther
unveil.
56(f) continuance,
Rule
cannot
928,
Macaulay,
F.Supp.2d
v.
complain
McCabe
circuit
now
court—-based
(N.D.Iowa 2006)
added) (internal
plaintiffs—granted
on the submissions
quotation marks, citations, original
summary judgment
brackets
in favor of DuPont.18
omitted) (format altered);
Weinberg
County,
746,
Acoba v. General
v. Whatcom
241 F.3d
Inc.,
(9th Cir.2001) (internal
Tire,
1, 11-12,
288,
marks,
quotation
92 Hawai'i
986 P.2d
(1999) (an
56(f)
omitted) (in-
citation,
original
298-99
HRCP Rule
affidavit
brackets
56(f)
provide
why
must
a
terpreting
holding
valid reasons
continu
FRCP Rule
necessary
specifical
ance is
and demonstrate
properly granted summary
the district court
ly
rebuttal);
postponement
judgment
how
would enable
in favor of the defendants when
Am., Inc.,
plaintiff
Josue
Isuzu Motors
87 Hawai'i
“never moved the court under
(same).
56(f)
958 P.2d
Rule
for additional time to obtain
sum,
testimony necessary
the circuit court
has
discretion
to substantiate his alle-
“deny
the motion for
judgment,
gations
damages”);
see also Pasternak v.
a
discovery
Inc.,
order
continuance for additional
Exploration,
Lear Petroleum
790 F.2d
”
(10th Cir.1986) (“where
just.’
or make ‘such other order as is
Jen
832-33
Redevelopment Agency
Sandy City,
opposing summary
sen v.
seeking
expert testimony
respect
We are
time
mindful
at the
DuPont filed
would be lifted with
subject
summary judgment,
motion for
final
Spiller
the additional evidence. See
v. Ella
expert reports
pursuant
had been submitted
Ctr.,
(5th
Geriatric
F.2d
Smithers
pretrial scheduling
the circuit court's
order
Cir.1990)
that, by
(indicating
allowing defendant
then,the circuit court had declared that testimo
move
for
after cut-off date
ny
experts’ respective reports
outside of the
motions,
pretrial
impliedly
district court
Indeed,
would not be allowed.
so
dissent
order).
granted
scheduling
motion to amend
pretrial
observes and contends that the
schedul
Thus,
pjlain-
"[the
dissent’s contention that
ing
possibility
order "thus barred the
con
of a
appropriately
tiffs could not have
moved
con-
Dissenting
discovery.”
Op.
tinuance for further
[Dupontj's
tinue the decision on
motion
sum-
(footnote omitted).
at
However,
309
claimed”).
view,
pending completion
discovery
Accordingly,
in our
the
continuance
advantage
provid-
to take
plaintiffs
opportunity
fails
shelter
to secure
waived their
56(f)
ed
Rule
..there
is no abuse of
opinions
experts
further
from their
to submit
granting summary judgment”).19
discretion
the
and cannot
raise it on
to
circuit court
now
Chung
appeal.
generally
See
v. McCabe
permit
plaintiffs
To
the
to now
Co.,
520, 537,
Renny
Hamilton &
109 Hawai'i
relating
proof
establish another record
to the
(2006) (“the
833,
prop-
failure to
128 P.3d
850
damages,
unsuccessfully maintaining
after
erly
pre-
raise an issue at
level
[circuit]
failing
advantage
their
to
take
raising
cludes a
from
that
issue on
56(f) remedy
them,
the Rule
to
available
(internal
appeal”)
quotation marks and cita-
apple.20
would entitle them to two bites of the
omitted);
tion
see also Avila v. Travelers
Carp.
Daiichi
Real
Hawai'i
Estate
Licht
(9th Cir.1981)
Co.,
658,
Ins.
651 F.2d
er,
325, 348,
411,
103 Hawai'i
82 P.3d
(stating
opposing
an
(2003) (in
that
contention
“[a]
seeking
an action
to vacate the
party that
time in
decision,
he had insufficient
arbitration
this court stated that
it
present specific
opposition
to
facts
accept
parties
right
“cannot
have
to
summary judgment] normally
keep
strings
two
to their
motion [for
bow—to seek victo
then,
ry
lost,
successfully
having
before the tribunal and
cannot be
raised for the first
(citation omitted).21
appeal”)
seek to overturn it for bias never before
time on
Appeals
opine
19. The United States Court of
for the
as to whether the circuit court would have
Circuit,
continuance; rather,
granted
request
Third
in Mid-South
v. National
as
Grizzlies
(3d Cir.1983),
League,
above,'
Football
plaintiffs when settled their eases and IV. CONCLUSION subsequently dismissed them. foregoing, Based on the affirm we the cir- light foregoing conclusion that August judgment. cuit court’s presented have not sufficient evi- dence summary judg- to defeat ACOBA, Dissenting Opinion by J. ment, we need not address the instant issue. respect, With all due I must come to the Cross-Appeal DuPont’s B. conclusion that the circuit court of the third cross-appeal, (the court) On DuPont raises an addi- properly circuit did not grant tional basis to affirm the judg- circuit court’s in favor of Defendant- Specifically, ment. challenges DuPont that Appellee/Cross-Appellant E.I. Du Pont de part of (Defendant). the circuit denying court’s order Company its Nemours and first motion for (1) as to the record indicates that part relevant plaintiffs’ claims, fraud contending 6,May courts 2004 order1 instructed the
225, 230,
(1995) ("[t]he
909 P.2d
by
bur-
Midwest laboratories and
DuPont's in-house
upon appellant
appeal
den is
testing
in an
to show error
facilities.
records”) (internal
reference to
matters
omitted).
entitled,
quotation
May
1. The
marks and citation
court's
2004 order
As
"Order
stated
Sunn,
Procedures,”
Haw.App.
in Costa v.
Related to Trial
.states in
its entire-
(1985):
ty:
agreement by
parties
Pursuant to
at a
appellant
[T]he burden is on
to convince the
22, 2004,
telephone
April
conference on
appellate body
presumptively
correct
Agena, Esq.,
Townsley,
Melvin
Esq.,
Plaintiffs,
Chan
action of the circuit court is incorrect....
So
Hutton,
Esq. representing
Mark
great
appellant
is the burden on
to overcome
Price, III, Esq.,
and Warren
Kenneth Okamo-
presumption
appellee's
of correctness that
to,
Yi,
Esq.,
Esq. representing
and Susan
De-
answering
failure to file an
brief does not enti-
fendants,
having
received a letter dated
appellant
sought
tle
ap-
relief
from the
Price, III,
April
Esq.,
from Warren
court,
pellate
though
may
even
the court
ac-
memorializing the matters discussed at the
cept appellant’s statement of facts as correct.
conference,
(citing
Id. at
3H specif- aware of the reports,” Plaintiffs were made expert final parties to “submit their “experts response will allowed to Defen- directed that not be to which their and ic standard beyond testify any on matters their re- summary to motion be would dant’s (2) Plaintiffs-Appel- reports”; spective require of court would held and what the Hawaii-Kona, Exotics lants/Cross-Appellees than attorney-expert witnesses other their (Plaintiffs) Inc., et al. submitted declarations expert of set submission the deadline for attorney-experts providing opinions of their (5) 6, order; and May reports set regarding Plaintiffs suf- as compromise “fair is used if the value” even opinions and have been fered such would calculating damages, Plaintiffs for the basis under Hawai'i Rules of admissible trial “compromise sufficiently fac- identified have (HRE) (1993) to Rule 702 sufficient Evidence compromise of put to “fair value” tors” genuine of material fact to present issues light of the at trial. their claims issue (3) tried; 28, February summary in the and the reasons elucidated foregoing for itself, first judgment order2 the court for the herein, February I the court’s would vacate remedy declared that the for fraud was time 28, 2005 order. compromise of the claim at “the fair value settlement,” of and that order “[i]n the time I. fair proving meet their burden of to summary judgment of is re- “An award settlement, time compromise value at the of de novo under same standard viewed expert Plaintiffs need to law- [submit] would by the v. Pizza applied court.” French [trial] testimony com- yer directed to numerous 462, 466, Hut, Inc., 105 Hawai'i factors, they how promise and would (2004) Amfac, Inc. (4) (citing v. Waikiki case”; to each it was applied Plaintiffs Co., 85, 104, 839 74 Haw. order, Beachcomber Inv. February not until that omitted)). (1992) (other 10, 22 citations granted judgment, the motion for III, Price, Plaintiffs, Esq., Warren and upon half of parties agree ports. The shall and confer Defendants, appearing on of behalf expen reports. deadlines for Defendant's IT IS HEREBY ORDERED that experts will IT IS FURTHER ORDERED that Summary Judgment granted. any for testify beyond Motion on not he allowed to matters law, a matter when of respective reports. [c]ourt finds their fraudulently [p]laintiff at the time have been IT IS FURTHER ORDERED that claims to date, parties trial dis- meet to confer tort claim because of induced to settle a deadlines, fraud, (s)he expert groups, pretrial options: re- covery/litigation trial and has two contract; deadlines, posi- (1) will port their [P]laintiffs state to the settlement to sue rescind at trial tion on the introduction evidence for fraud. to affirm contract sue or relating (s)he remedy to of whether Benlate was the issue for If chooses to sue compro- will Plaintiffs p]laintiff defective contaminated. is the fair [the to available and/or position at that time and memorialize their claim at the time value mise Defendants]. it to [c]ourt to to meet their burden submit In order settlement. added.) (Emphases compromise time proving the fair value at the settlement, would need to meet Plaintiffs entitled, February The court's order lawyer testimony expert directed burden Granting Sum- Defendant's for “Order Motion factors, how the numerous Inability Judgment mary Based on Plaintiffs’ applied each s case. would have Plaintiff Damages,” entirety: in its Prove states expen testimo- have not submitted Plaintiffs matter, proof required on having ny their burden [c]ourt come before the sustain This Summary cases. proper in their pursuant to Motion measure Defendant’s for Inability to submit their Judgement deadlines Based on Plaintiffs' Plaintiffs final 3, 2005, pleadings October February repons were Damages, and amend their Prove filed 14, 2004, respectively. having and December [sic] reviewed Plaintiffs [c]ourt previously clear Opposition made to Defendant's This court Memorandum experts Judgment Summary on reports were and that Based to be Motion final testify Damages, be- Inability 17, filed not be on matters to Prove allowed Plaintiffs' February respective reports Reply in its Related yond Order and Defendant's Procedures, May 2004. Plain- Support Mo- of Defendant's to Trial Memorandum filed prove the Judgment Plain- unable to Based on Summary are tion for fact therefore tiffs damages as a matter Inability Damages, filed Febru- amount tiffs' to Prove fraud law, 18, 2005, granted on all having ary heard oral [c]ourt and the p.m., remaining argument February herein. at 4:00 claims omitted.) (Boldfaced added.) (Emphasis font Esq.[,] Agena, appearing on be- Melvin from *33 312 516, 521, granting 530,
The standard for a motion for sum- Hawai'i 904 P.2d 535 (App. 1995) mary judgment (citations omitted)) (some is settled: emphasis added). omitted and some Summary judgment if appropriate is pleadings, depositions, to answers inter- moving party, As the Defendant had the file, rogatories, together and admissions on any burden to demonstrate the of absence affidavits, any, if with that show there genuine issue of material fact in its motion genuine any is no issue as to material summary judgment. for posi- fact Defendant’s moving party that is entitled to actually paid tion that “it was would have judgment as a matter A law. fact is Thus, more in than it did.” it of was proof if material of that fact would have burden, moving party, Defendant’s as the to establishing refuting of effect or one of produce admissible evidence that Plaintiffs the essential elements of of a cause action prove damages could not in excess of the or parties. defense asserted settlement amount and to rebut evidence produced by they Plaintiffs that prove could Taniguchi Apartment v. Ass’n Owners of of damages. such Manor, Inc., King 37, 46, 114 Hawai'i 155 (2007) 1138, original) in II. Weeks, (quoting Bremer v. 104 Hawai'i (other (2004) 85 P.3d citations It first prior must be noted that to the omitted)). In summary a motion for judg summary judgment court’s ruling there was ment, evidence and inferences “[a]ll must be dispute a as to appropriate standard for light viewed in the most to favorable the non- measuring damages. In summary their French, moving party.” Hawai'i judgment motion, 3, 2005, February filed De- (citing Maguire 99 P.3d v. Hilton alia, argued, fendant inter that Plaintiffs Corp., Hotels 79 Hawai'i 899 P.2d were in Citing limited their remedies. Dela- (1995)). 393, 395 Certain burdens are im law, “[wjhen ware Defendant maintained that posed summary judgment proceedings: plaintiff a claims to have fraudulently been First, moving party has burden induced to settle a tort claim—-because of (1) producing support of for its claim that: otherwise—(s)he discovery/litigation fraud or genuine (1) no of fact issue material exists has options: two sue to rescind settle- respect (2) contract, essential elements of ment or the contract and affirm the claim or defense which the motion sue for fraud.” (Emphases original.) Ac- to seeks establish which the Defendant, motion cording if opted Plaintiffs questions; and undisputed based on the remedy, rescinding, they first could “then facts, it judgment entitled pursue unliquidated [their] tort claim and Only moving it, as matter jury liquidate wit, law. when have a determine its ” produc- satisfies its initial burden judgment ‘actual argues value.’ Defendant tion does the burden shift to the if, alternate, non- opted in the Plaintiffs moving party respond to the motion for remedy, suing the second separately for summary judgment spe- and demonstrate “only their then claim is for the fair facts, opposed general cific allega- compromise value of released tort [their] tions, present genuine issue worthy (Emphasis original.) claim[.]” Defendant of trial. dispute general objective did not
Second,
place
fraud
is “to
moving party
the defrauded
bears the ulti-
plaintiff
position
in the
he
persuasion.
mate burden of
been
This burden
‘but for’ the fraud.”
always
moving party
remains with the
requires
moving party
to convince
opposition
memorandum
to De-
genuine
the court that no
issue material
motion,
February
fendant’s
Plaintiffs
moving part[y]
exists and that the
fact
contended that
“[n]o ‘election
reme-
entitled to
as a matter
dies’ doctrine limits
claims to
Plaintiffs’
law.
speculative
‘reasonable
value’ in
Id. at
99 P.3d at
They argued
1054 this action.”
reme-
“[t]he
(quoting
Corp.
Jaffarian,
dy
GECC Fin.
for Plaintiffs’ unreleased fraud claims is to
noted,
place
previously
prior to the court’s
[sic] absent
As
Plaintiffs’
added.)
(Emphasis
According
grant
summary judgment,
governing
fraud.”
disputed.
In this
Plaintiffs:
measure
regard
argue
had no no-
Plaintiffs
position ultimately
Whether
was a
regarding
require-
tice
the court’s aforesaid
*34
litigat-
“reasonable settlement” or a claim
attorney-experts’ reports.
for the
Ac-
ments
through
jury
ed
trial is for a
to determine.
Plaintiffs,
cording
adopted
“the
this
[court]
hinge
That decision will
on the evidence
(setting
requirements
limitation
out
for the
[
trial;
date,
presented
up till
it
has
testimonies)
expert
only
]
after Plaintiffs
position
greater
been
that no
[Defendant’s]
expert reports—
their
had submitted
final’
settlement would ever have been offered
anticipa-
all of
had been formulated in
which
jury accepts
If
with or unthout
a
fraud.
damages
prevailing
tion of
rule of
[the then]
proposition,
that
value
ultimate
added.)
(Emphasis
for fraud.”
Plaintiffs
necessarily hinges
lost to fraud
maintain that
tuere
in-
“[n]or
Plaintiffs
underlying
[sic]
on what value Plaintiff’s
that
...
that deadline
formed before
claims would have received
trial.
opinions
experts
written
were
Plaintiff[s’]
added.)
(Emphases
complete
opinion
to include the
bases of
stating
opinion
in addition to
the ultimate
6,May
The court’s order of
2004 directed
added.)
(Emphases
themselves.”
“Plaintiffs,
parties
that
as the
with the bur-
hand,
Answering
Brief
On the other
its
proof,
expert
den of
their final
shall submit
appeal,
on
Defendant states that
the court
first,”
report
“experts
not be
will
allowed
“merely
proper
enforced the
measure of
testify
any
beyond
on
their re-
matters
damages associated with the cause of action
spective reports.”
apparently
Plaintiffs
sat-
brought by
According to De-
[Plaintiffs].”
by submitting
that order
isfied
attor-
fendant,
argu-
“make a
Plaintiffs
nonsensical
ney-expert reports by the October
cannot enforce its
ment that the
own
[c]ourt
deadline.
rules because it ‘did not advise [Plaintiffs’
February
On
the court entered
‘change
that
it intended to
the nature of
summary judgment
In
for Defendant.
its
remedy’
impose
requirement
or
[Plaintiffs’
order,
February
the court stated
expert attorney
compromise
on
evidence
[p]laintiff
to have
“when
claims
been
factors.”
fraudulently induced to settle a tort claim
(s)he
discovery/litigation
because of
III.
(1)
options:
has two
to sue to rescind the
majority disputes that
met
Plaintiffs
contract; or
to affirm the con-
proof
to the element of
their burden of
court
tract and sue for fraud.” The
then
attorney
“none of the
ex
because
remedy
declared that the
for fraud
“the
was
any opinion testimony
perts provide
as to
compromise
claim at
fair
value of the
specific settlement
factors
or
what
were
settlement[,]”
affirming
time of
hence
Defen-
settling
each of the
should be considered
position.
dant’s
underlying product
cases
s
[P]laintiff
factors
and the evaluation of how those
stated,
Additionally,
“In order to
they
had
known about the
have been altered
proving
meet their burden of
the fair com-
Majority opinion at
concealed evidence.”
settlement,
time
promise value at
305, 172
at 1049.
Plaintiffs would need to meet this burden
record, however, appears to
expert lawyer testimony
to the
vindicate
directed
they
not notified
compromise factors,
and how
Plaintiffs’ claims
were
mtmerous
require of their
applied
case.”
as to what the court would
would have
to each Plaintiff’s
added.)
witnesses,
than the
attorney-expert
other
(Emphasis
The court concluded that
reports.
deadline set for submission
“Plaintiffs have not submitted the
tes-
order,
May
In
the court did
timony required to sustain their burden of
require
experts produce
a settle-
proof
proper
on the
measure of
value,
value,
any
judgement
other
ment
their cases.”
specific
fact,
dollar amount
to damages,
related
In
argument
defense counsel’s
experts
set forth
according
factors
during
February
hearing
particular
to a
standard
which
summary judgment motion,
Defendant’s
must be measured. No
ordered
was
application
compro-
advocated
of the fair
regarding compromise
submit evidence
fac-
standard,
specific
mise value
evinces that the
tors in
advance of the
governed
standard which
was still undecided
hearing,
designated damages
nor was the
at that time.
prior
standard defined
judg-
sum,
Plaintiffs had no notice that their
healing.
ment
experts
required
provide “testimony
were
February 28,
It
until the
directed to the numerous
fac-
order,
granted
the motion for sum-
tors,” because until the court decided the
*35
mary judgment,
that Plaintiffs
made
were
summary
motion,
judgment
it had not deter-
specific
aware
standard to which their
compromise
fair
mined
“the
stan-
value”
response
majority
be held.
would
The
con-
govern
dard would
in the case. There was
tends that “the dissent fails to take into
nothing specific the court
demanded
[Pjlaintiffs
account
placed
that the
were
on experts
granted
until it
Defendant’s motion
notice
position
of [Defendant’s]
on dam-
summary judgment.3
ages—at the latest—when
filed
[Defendant]
summary
its motion for
judgment” on Febru-
IV.
ary 3,
Majority
307,
opinion at
172
P.3d at 1051 n.17.
designated remedy
Plaintiffs
Inasmuch as the
stan-
may
put
have been
“on notice of
prior
[Defen-
dard was not determined
to the sum-
position
damages” by
on
mary judgment
dant’s]
virtue of
hearing
February
on
summary
motion, id,.,
Defendant’s
provided
Plaintiffs
declarations suffi-
nothing
has
to do
the fact
satisfy
May
that Plaintiffs
cient to
2004 order. See
were not made
specific damages
aware of the
discussion
The declarations of the
infra.
adopted by
standard
would be
attorney-experts provided
the court
opinions regarding
February
until the
damages
order. As the
opin-
Plaintiffs suffered. Such
majority
recognizes,
itself
up until the court’s
ion evidence would have been admissible at
February 28,
order,
Plaintiffs “contin-
(stating
trial. See HRE Rule
relevant
contrary
ued to assert their
scientific, technical,
on
part
dam-
“[i]f
or other
ages[J”
308,172
Majority opinion
specialized
at
P.3d at
knowledge will assist the tñer of
majority
ate,
3. The
claims that this dissent "fails to
it was not until the court ruled on the motion
take
put
into account” that
summary judgment
Plaintiffs were
on
that Plaintiffs were made
theory
damages
notice of the alternate
when
controlling
aware of what the
law would be
summary judg-
Defendant filed its motion for
regarding damages
They
for this case.
could not
ment,
majority opinion at
missible would be settlement,” on the basis position regarding responsible to hold Plaintiffs for failure to strength of case is that “the provide meet a standard and to factors directly proportional the recommendation yet controlling had determined as be- compromising regarding given to the client production fore the deadlines established for consider- the total case when expert opinions. of their The reference to ing a settlement offer.” liability” being in direct strength of the
“the V. proportion the settlement recommendation obviously regarding compromise. a factor by Plaintiffs should What was submitted Playdon, Jr. Attorney-expert George W. *36 preclude have been sufficient to mis- First, explained that “the concealment judgment. provided Plaintiffs econo- and/or representation of factual information mist-expert opinions to each Plaintiff as what my ability fairly impaired damages. [Defendant] could claimed at trial as have my client’s Benlate evaluate the status of alleged damages in Plaintiffs Exhibits 8 to Playdon that “this litigation.” maintained opposition of their memorandum. The dam- made a substantial information would have age Or- amounts were for Pacific Paradise analysis regarding my in difference chids, Inc., $1,287,775; McCully, Jim liability/causation strength case Taka, $649,871; $11,847,889; S. Albert Isa Play- According to against [Defendant].” $967,222; Farm, Nursery, Nakashima don: $547,276; Orchids, $3,278,202. and Hawai'i prop- ... If information had been Plaintiffs, 11.
According economist-expert ..., I not have erly disclosed would injury by the reports “measured the fraud my client settle his recommended that Plaintiff could have each of- [Defendant] claim for the amount claim, of their Benlate less claimed trial during negotiations. fered fact, paid plus in the amount of settlement interest, giving a total for the effects of value my my opinion, the client’s In value and deceit claims.” the fraud greatly losses exceeded economic was of the settlement which value Second, attorney-experts Plaintiffs’ satis- my opinion, assuming negotiated. 6,May the court’s fied the mandate of appropriate access to all of timely and opinions attorney-experts’ would order. The represented the information jury supported awarding Plain- aid the docu- aforementioned events and/or in had received tiffs more than what ..., assuming ments fmiher Attorney-expert for their claims. settlement or any in mediation arbitration that Pavey stronger that “the Judith A. stated negotiations [Defendant] settlement liability the more both sides as- value any not offer set- not and did would sign.” Upon proposition, that she concluded greater than tlement consideration “[tjhis have added confi- that evidence would paid to settle in fact that which was on my of the risk of loss dence to assessment claim, underlying Benlate my client’s prior jury re- liability, had some trials even before taken the claims I would have findings in for [Defendant] sulted jury. a stated, Pavey “I for a also know issues.” Playdon proffered original.) prior (Emphasis that settled fact that some of the eases He bearing on a settlement. been settled factors to our cases would have either two “timely appropriate access gone opined to tri- that substantially higher sums or all of a “wrongfully the information” is factor he would the information withheld.” Such have considered settlement. He stat- also an assessment be a would factor determin- and, ed ing thus, that since Defendant “would not and did the “settlement value” would any great- specific offer settlement consideration factor to be considered. er paid,” than that which he was would have attorney-experts opined Here the gone to trial. Both the “access” Defen- higher settlement value was than unwillingness may dant’s to settle be viewed previously the case was settled. See affecting as any factors the fairness of settle- Vliet, State 95 Hawai'i ment. (2001) (explaining expert testimony
Attorney-expert J. Richard Peterson said minimum, only, must “assist trier September “had fact,” [his known Plaintiff] jury’s ability and enhance the re ..., 1994 all the (citations information he would have omitted)). solve that matter The rejected paid to him [Defendant’s] opinions attorney-experts, of Plaintiffs’ if ac gone Peterson, According to trial.” cepted, establishing would have the effect of information, whole, “[t]he taken as a damages greater than the amounts for which greatly strengthened [his Plaintiff’s] Plaintiffs settled. See id. claim the B enlate was defective and the specific awarded, amount any, to be if [damages].” cause of his as a “taken See, jury. for the e.g., Auto. Underwrit impact whole” of the information withheld— ers, Rich, Inc. v. 222 Ind. 53 N.E.2d opposed as to the value of the case without (Ind.1944) (explaining a purpose specific such information—was factor to expert testimony give jury is to “a meth strength consider of Plaintiffs’ value,” measuring od means for not that prior claims and fairness settle- themselves). experts give such value Ex ment. pert testimony is jury intended “to aid the *37 Jeffrey
Attorney-expert
Portnoy
conjecture
speculation,”
[to
concluded
...
avoid]
my
that “it is
had I
represent-
any testimony,
view that
been
“like
jury may
accept
the
claimants,
ing
reject
these
the settlement value of or
it.”
Morishige,
Bachran v.
52 Haw.
(citations
dramatically
67,
the cases
61,
808,
would have been
im-
469 P.2d
812
omitted)
pacted
wrongfully
added).
the
had
withheld informa-
The declarations
According
Portnoy,
therefore,
tion been available.”
attorneys,
to
of the
were sufficient to
available,
genuine
that
information been
“[h]ad
the
raise
issues of material fact as to
value
settlement
of the Hawaii
would
eases
what
the reasonable
settlement
amount
significantly
have been
compromise
increased.” Like at-
be or
the
should
what
“fair
val
Parsons,
torney-expert
Portnoy’s
ue,”
28,
order,
settlement
see February
2005
a settle
by
assessment would
been
have
influenced
ment would
been.4
Under HRE Rule
Indeed, "[although
expert
315-16,
liability
supra
an
affidavit need
ucts
claims. See
at
172
addition,
details
of the
experts
include
about all
raw data used
P.3d at 1059-60.
In
the
ex-
conclusion,
produce
to
reasoning
about scientific or
plained
reaching
opinion
their
in
the
input
might
specialized
confusing
other
which
premise
that that factual
in
resulted
the conclu-
lay person,
to a
it must at least
the
include
the
sion
fraudulent
inducement
to settle
process
reasoning
factual
and the
basis
which
injured
Specifically,
attorney-ex-
the
Plaintiffs.
makes the conclusion viable in order
defeat
to
perts explained
fraudulently
that the
withheld
summary judgment.” Hayes Doug
motion for
v.
assigned
evidence
increased
value of
case
Inc.,
88,
(1st Cir.1993)
Dynamics,
las
(citations omitted).
8
side,
F.3d
impacted
by each
the "assessment of the
Thus,
expert
"[w]here an
liability!)]"
strengthened
of loss
risk
facts,
presents 'nothing but
case,
conclusions—no
no
proportional
directly
which was
to
process,
hint of an inferential
no discussion of
attorney’s
recommendation
the client re-
hypotheses
rejected,’
considered such testi
315,
garding
supra
settlement value. See
at
mony will be
insufficient
defeat a motion for
experts opined
generally
at
1059. The
more
summary judgment."
(quoting
whole,
Id.
Mid-State
against
taken as a
the case
Defen-
Bank,
Exchange
v.
Nat'l
F.2d
Fertilizer
stronger
knowledge
dant was
once
had
Plaintiffs
(7th Cir.1989) (other
omitted)).
citations
information,
totality
of the withheld
attorney-experts'
attorney-experts
declarations were based
would
the information
cause the
basis, namely,
change
on a
respec-
common factual
to their
recommendation
fraudulently
regarding
withheld
been
evidence would have
tive clients
Defendant’s settlement of-
315-16,
prod-
supra
critical in Plaintiffs'
decisions
settle their
fer. See
at
been at a level
than
experts,
[Defendant’s]
not one was re-
value,
Defendant.
range
opine
This would establish a
tained to
on
settlement
fair
jury
within which the
could determine the
the economics
claims.
fraud
Plaintiffs’
compromise
fair
anywhere
value
the claims.
There is no
in the mas-
reference
sive record
this action
[Defendant]
of-
VII.
fering opinions
subject
on this
matter.”7
added.)
Finally, the
persuasion
“ultimate burden of
(Emphasis
always
...
moving party
remains
with
response
Defendant’s
Defendant
requires
moving party
to convince
any
“need not submit
evidence if it chooses
genuine
court that no
issue of material
to.
[Plaintiffs] have
burden of
fact
moving party
exists and that
proof.”
summary judgment,
But on
“the ul
summary judgment
entitled to
as a matter of
persuasion
always
timate
...
burden
re
(citation
law.” Id. at
was had pers appropriate standard (HRCP) 56(f) Civil Procedure Rule ] and, hence, majori yet to be determined (2007),[9] consid at the time [court] yet had ty’s posited need for a continuance ering motion for [Defendant’s] majority that Plaintiffs ripen. The maintains inability judgment” based on the Plaintiffs’ opportunity to secure further 307, 172 “waived prove damages. Majority opinion at [discovery] ... cannot raise it on now fact, P.3d at 1051. Plaintiffs did not 309, 172 opinion P.3d at appeal.” Majority they given additional maintain that should fact, no reason for 1053. But in there was present did not time to evidence 56(f) a HRCP Rule con Plaintiffs to secure summary judgment. submit at the motion for discovery” since tinuance for “further Rather, Plaintiffs indicated that “[b]eeause a continuance could imposing purported limit need such possibility of the [court] the court decided remedy only apparent become fraud’ was unknown ed ‘settlement after *40 However, party attorney- appear of a it from the affidavits in the face of Plaintiffs' Should 8. party experts’ opposing cannot declarations submitted before the court the motion that the for measure, damages appropriate present by De- essential ruled on the reasons stated affidavit facts respond may to show that party’s opposition, fendant had the burden to justify the court to the genuine fair- no issue of material fact as to the judgment may application or order the refuse a continuance to of settlement remained. Determination ness permit affidavits to be ob- appropriately left for trial and that issue is one discovery depositions or tained to be taken or the fact finder. may as is make such other order to be had or just. added.) 56(f) (Emphasis 9. HRCP Rule states: damages apply majority
what standard at given the has another Defendant “bite hearing. apple,” advantage expressly at the an it de- majority opinion
nied
Plaintiffs.10 See
at
IX.
(“To permit
the motion been is also inas- much the facts demonstrate there was no majority’s The assertion that Plaintiffs reason for to raise Plaintiffs HRCP Rule 56(f) should have moved for a Rule continu- 56(f). judgment hearing ance when
Furthermore, presenting “theory an additional Defendant’s ... became argument that would foreclose filing Plaintiffs’ re- clear[ ] its motion for sum- relief, quested mary majority places itself in judgmenty” majority opinion at position. Defendant’s In the circumstances 172 P.3d at is incongruous even more 56(f) by positing this a HRCP Rule way anticipate inasmuch as there was no argument raise, hearing Defendant did not held that before majority prevailing appeal despite this in ref- misconstrues dissent this fact that it 10. and, majority's apple argued any by erence to second bite at supra, was not as noted 309-10, majority opinion comport comment. See does not with the at facts. point P.3d at 1053-54 n.21. The given opportunity will Defendant another dissent, majority contends that this trial, prevail phrase as the used 56(f) criticizing application of HRCP Rule but, rather, majority advantage in relation to the case, ignores appellant's per- an burden of given appeal. Defendant on this Defendant had appeal. Majority opinion suasion on opportunity any theory assert it chose to given P.3d at 1053 n.21. that HRCP support grant summary judgment. 56(f) the court's Rule was not raised before court and argue court, It chose not to to this court therefore was decided Plaintiffs Plaintiffs should have moved for a reasonably fairly required continuance cannot be to con- Thus, by injecting *41 under HRCP Rule they new vince this court that are entitled to relief decision, theory support majority's wholly hypothetical theory the the on based a then majority has afforded Defendant the basis for case.
321 5, Indeed, May order man- the court’s 2004 adopt Defendant’s standard of dam- expert ages apply it to Plaintiffs’ testi- on the dated Plaintiffs to “state their only mony.12 opportunity The Plaintiffs relating at trial introduction of evidence testimony acquire expert would have had Benlate defective the issue of whether was re-evaluating their fraud claims under the 28, February The contaminated.” and/or “reasonable settlement” standard would have possibility the of a 2005 order thus barred 28, February its been the court made after discovery.13 continuance for further granting judgment. order only majority disagrees op- that “the The until This is because it that order was to ac- portunity would have had [Plaintiffs] the was issued reasonable testimony re-evaluating governing quire expert their amount disclosed as the stan- was damages. determined the dard for The order fraud claims ... would have been after (s)he 28, chooses to sue for February “[i]f court made its 2005 order remedy fair com- available to Plaintiffs is the granting summary judgment because of ]” promise of the claim at the time of value remedy pursuant to HRCP “the available settlement.” 56(f)[.]” 309, opinion at Majority Rule before, pointed at 1053 n.20. As out order, February 28,
Until the
Plain-
reasoning
in this
only
they always
tiffs could
maintain'—as
Plaintiffs
defect
specific
to know what
would have needed
damages
had—that
their
should be measured
eventually decide
claims.
the comi would
up to the
value
their
standard
56(f)
point,
by
...
discretion in
cited
there is no abuse of
12. On this
the federal cases
Rule
majority
proposition
party
summary judgment.]” Majority opin-
granting
that a
who
for the
308-09,
However,
relief
Federal Rules of
fails to move for
under
at
cretion, may
XI.
grant
deny
request
56(f).
pursuant
continuance
to HRCP
See
Manifestly, it is the lack of notice that
Dev.,
Murakami,
LLC v.
111 Hawai'i
Defendant’s
damages
measure of
con-
would
349, 355, 141
(2006) (“A
996,
circuit
parameters
expert
trol the
testimony that
deny request
court’s decision to
for a con
unfairly prejudices Plaintiffs here. Until the
pursuant
56(f)
tinuance
to HRCP Rule
will
February 28,
order,
court entered its
not be reversed absent an abuse of discre
Plaintiffs had no notice that the “reasonable
(Brackets
omitted.)).
tion.”
and citation
settlement amount”
was the measure
words,
other
if
requested
even
Plaintiffs
attorney-experts
which its
have
continuance, there is no assurance that the
majority’s
evaluate the case. The
Thus,
granted
would have
it.
irony
that it
was
unforeseeable that the court
majority’s
of the
position is that
it
itself
would rule in
summary
favor Defendant on
speculates
might
that the court
granted
judgment, majority
309,
opinion at
172 P.3d
56(f)
a Rule
continuance.
n.21,
at 1053-54
does not address the central
That aside
point,
here,
and more to the
again,
namely
issue
that when Plaintiffs sub-
majority ignores
language
manifest
expert reports,
mitted their final
they were
of the
granting
court’s order
Defendant’s
not on
governing
notice of the
measure of
expert
motion that “the
subsequently
announced
reports were to be
experts
28,
and that the
February
court’s
2005 order.
final
would not be
testify
allowed to
on matters
majority’s position
What makes the
even
beyond
respective reports[.]”
As indicat-
egregious
Defendant,
more
is that
while
supra,
ed
per
February
the court’s
maintaining
reasonable
order, it
disposed
grant any
was not
mo-
amount as the
damages,
measure of
never
tion for
discovery
further
if
even
Plaintiffs
produced expert testimony applying such a
discovery.
moved for such
plainly
The court
and, thus,
standard
there was no reason for
February
related
its
2005 order that it
56(f)
request
Plaintiffs to
a Rule
continuance
any
would not have considered
continuance.
of the
judgment hearing
respond
To
majority
decide as the
question
does is to
applying
non-existent affidavits
such a
the credence of the court’s orders.
Hence,
illogic
majori
standard.14
The court
first set the
ty’s position
deadline in
until
designat
the court
5,May
its
Relating
2005 Order
to Trial
appropriate
Pro-
ed the
measure
as to
cedures. That the court stated the
attorney-experts
deadline which the
opine,
were to
"[Defendant],
majority
14. authority (stating
contends that
party moving
that "a
for sum-
party moving
summary judgment,
the
not
'need
mary judgment under
Rule
[FRCP]
56 need not
support
[its] motion with affidavits or similar
support his or her motion with affidavits or simi-
claims,
negate
materials that
[Plaintiffs']
but
negate
lar
opponent's
materials that
his or her
only point
need
out that there
[an]
absence of
claims,
only point
but need
out that there is
"
support
evidence to
[Plaintiffs'] claims.' Ma-
support
opponent's
absence of evidence to
jority opinion at
lack evidence n.15,
jority 172 P.3d at opinion at presupposes
because a contention such of an established measure of dam
existence
ages “any as to absence evidence” compared—and yet the court
would be had adopt The majority a measure. such then,
incorrect, alleging that the Plaintiffs discharge majori
failed to their burden. See 305-06,
ty opinion
n.14. Plaintiffs ex To fault facto testimony only expert producing directed proposed standard and not proffered
directed to Defendant’s measure
impermissibly deprives Plaintiffs of their
right to a trial on their claims.
XII. above,
Under it cannot the circumstances reasonably concluded that Plaintiffs had im-
notice the standard the
pose they had on the marshaled evidence summary
opposition to Defendant’s
motion, “convinc[ing- Defendant has or that
ly,]” its entitlement to established French,
judgment. 105 Hawai'i at omitted). (citation With all due
respect, although I believe court acted
conscientiously, should Accordingly, granted. been I would February 2005 order and re-
vacate the proceedings.
mand for further the case Doe, Jane Petitioner-
John DOE and
Appellants, Doe, Respondents-
John DOE and Jane
Appellees.
No. 26471. of Hawai'i.
Supreme Court
Dec.