*1
property.”
possession
use of
Pont & International, corporation; ware Terra adopt interpreta do not Alaska’s We Inc., corporation; a Delaware Platte may be situations tion the statute. There Co., corporation; a Nebraska Chemical deprivation where a is of such extended dura Jersey Packaging, corpo a New Bartlo that, “virtually although resulting not tion ration, Defendants-Appellants. loss,” permanent it entails theft nevertheless statutory within Hawai'i scheme. How Stanley Cynthia To T. TOMONO and T. ever, Bautista’s behavior was insufficient Farms, Plaintiffs-Ap mono dba S.T.T. finding support that he the instant case pellees-Counter-Defendants-Counter- deprive Toyota Maui of a had the intent Appellees, significant portion of the vehicle’s economic value, use, or benefit. Bautista returned the temporary possession,
vehicle and the after E.I. DE & DuPONT NEMOURS COMPA prosecution prove was unable to econom NY, corporation; In a Delaware Terra Toyota. ic loss to Maui ternational, Inc., corpora a Delaware Co., tion; Platte Chemical Nebraska reasons, For we hold that insuf- the above Packaging, Incorpo corporation; Bartlo presented ficient was at trial evidence Jersey corporation; rated, a New Love uphold finding that Bautista intended to Industries, Inc., land dba Hawai'i as degree. Although commit theft in the first Industries, Inc., Agri Loveland United appalling, it Bautista’s conduct was does .not Hawaii, Reginald Hasegawa, Products support of the vehicle.4 a conviction theft Defendants-Appellants-Cross-Defen dants-Cross-Appellees, III. CONCLUSION reasons, foregoing we For reverse Knutsen; Knutsen; Inger-Lise Kristofer conviction of theft first de-
Bautista’s Chun; Bush, H.F. Marion Bernard gree. Keliikipi Pualani Trustee of the Marion Trust, Defendants-Appellants
Bush -Cross-Claimants-Cross-Appellants -Counter-Claimants-Counter-Appel lants.
No. 19201. Supreme Court of Hawai'i. Dec. 1997. nego- negotiating potentially offense of a worthless conduct was violative of criminal Bautista’s See, However, Bautista portions tiable instrument. was other of the Hawai'i Penal Code. charged e.g. with this misdemeanor offense. § 708-857 which defines the HRS
216
218 *7 Landau, Warren, Christopher W.
Edward DC, Gash, An- Washington, Los and James CA, Ellis, geles, appellants & for Kirkland Company, Inc. E.I. DuPont Nemours and de Incorporated. Packaging and Bartlo Lacy, Munger Bruce John R. Lisa W. Quinn & L. Anderson Lamon of Goodsill Honolulu, Stifel, E.I. appellants Bartlo Company, Inc. and de Nemours Incorporated. Packaging Young of John S. Nishimoto Calvin Nakamura, Nishimoto, Ayabe, Sia & Chong, Honolulu, Agri appellants United Prod- ucts, Industries, Inc., Agri United Loveland (Hawaii), Hasegawa, and Reginald Products Platte Chemical Co. A. and David Gruebner
William Bordner Bordner, Hono- & Burke Sakai McPheeters *8 International, lulu, Inc. appellant Terra for Wilson, P. Stanley Roehrig, Andrew H. Stephen T. Kris A. LaGuire Cox and Hara, Hilo, & and Roehrig, Roehrig, Wilson Honolulu, Esser, appel- for Peter Van Name Farms, Inc., Stanley T. To- lees Kawamata Cynthia T. Tomono dba S.T.T. mono and Farms. Lacy and David W.
Stephen D. Whittaker Whittaker, Stephen D. Law of The Offices Kona, cross-appellants Kristofer for Kailua Knutsen, Knutsen, (DuPont). Inger-Lise Company Bernard H.F. DuPont de and Nemours Chun, Bush, and Marion Trustee. DuPont, The Plaintiffs sued Terra Interna- tional, Inc., Co., Chemical Pack- Platte Bartlo MOON, C.J., KLEIN, Before and Inc., Products, aging, Agri Loveland United LEVINSON, RAMIL, NAKAYAMAand JJ. (Ha- Industries, Inc., Agri United Products waii), (referred Reginald Hasegawa and NAKAYAMA,Justice. Defendants), collectively as who lawsuit, products liability defen- formulating, manufacturing, in involved dants-appellants-cross-defendants-cross-ap- packaging, marketing, distributing, and/or pellees Compa- E.I. DuPont de Nemours and selling sought of Benlate. The Plaintiffs ny, International, Inc., Terra Platte Chemical under, compensatory damages among other Co., Inc., Packaging, Agri Bartlo United things, negligence prod- theories of and strict Products, Industries, Inc., Loveland United liability, express ucts breach of (Hawaii), and warran- Agri Reginald Products and Hase- gawa ty. appeal sought punitive The Plaintiffs also judgment awarding from a dam- Farms, plaintiffs-appellees ages. Kawamata Inc. plaintiffs-appellees-counter-defendants- and Because the Tomono had Plaintiffs leased Tomono, counterrappellees Stanley T. and some of their farm land from various land- Cynthia T. Tomono a total of more than $23 lords, the sought Tomono Plaintiffs declara- damages crop damage resulting million for tory relief from the landlords to absolve
from manufacturing a defect Benlate 50 responsibility any alleged themselves of WP, DF agricultur- and Benlate 50 are damage to land. Two of the Tomono fungicides. al Defendants-appellants-cross- landlords, Plaintiffs’ claimants-cross-appellants-counter-claimants- State of Hawafi and eounter-appellants Inger-Lise Kristofer and Trustees under Will and of the Es- Knutsen, Chun, Bernard H.F. and Marion tate Bishop (Bishop Pauahi Bernice Es- Bush appeal jury also from unfavorable ver- tate), successfully sought from dismissal declaratory them, against dicts a action as remaining landlords, ease. The Kristofer well as their counterclaims and cross-claims. Knutsen, Inger-Lise and H.F. Bernard b'elow, For the reasons stated we affirm the (hereinafter Chun, and Marion Bush referred judgment all of and the circuit court’s orders. Declaratory to collectively as the Defen- dants), against filed a counterclaim the To-
I. BACKGROUND Plaintiffs, contract, alleging mono breach of A. The Parties negligence, Declaratory waste. and De- fendants against also filed cross-claim the_ appeal separate This results two Defendants, essentially adopting the products liability lawsuits that were consoli- (Ka- against Farms, Plaintiffs’ causes of action Liabili- dated for trial. Kawamata Inc. Farms) ty Defendants, corporation wamata seeking compensatory is Hawaii produces, distributes, markets, damages remediation, puni- sells or- for soil as well as flowers, roses, namental including Hawaii damages. tive County. Stanley Cynthia T. Tomono and T. two Plaintiffs’ lawsuits were consoli- (the Plaintiffs) Tomono Tomono own op- dated on November and trial was Farms, erate grows, S.T.T. business 14,1994. below, explained set June As markets, tomatoes, and distributes cucum- trial, the conclusion jury issued a bers, orchids, agricultural and various other verdict in products favor of Plaintiffs and County. in Hawaii Defendants, finding liability un- Kawamata Farms and the Tomono Plain- II, der Counts I which the Plaintiffs (referred Plaintiffs) collectively tiffs alleged negligence liability had strict lia- filed their actions in 1991 respec- *9 bility, respectively, for the manu- defective tively, soil, alleging that their plants, and jury facture design of Benlate. The also damaged by farm structures had been Ben- (referred liability found Count III under for the Liabil- late 50 DF and Benlate 50 WP Benlate), ity collectively express of an agricultur- as which are Defendants’ breach warran- fungicides al ty that were manufactured E.I. on the Benlate. label of preemption summary judgment regarding respect to the Tomono Plaintiffs’ de-
With claratory Declaratory alleging action and the Defen- Plaintiffs were the extent that the cross-claims, the dants’ counterclaim and liability I and II for the defective in Counts jury a in favor of the Plain- rendered verdict design Benlate. Fur- manufacture and of Defendants, Liability tiffs and thermore, expressly denied the circuit court Declaratory the Defendants. partial Liability motion for the Defendants’ summary regarding preemption judgment is- DF B. The Recall Benlate 50 of claim for to the Plaintiffs’ sues formulated, Liability The Defendants man- express warranty in III. of Count breach marketed, ufactured, distributed, packaged, Liability also moved for Defendants DF, fungicide sold Benlate 50 that and/or summary that partial judgment to the extent plants applied Plaintiffs to their and soil. the warranty claim in express the Plaintiffs’ 1989, September federal Environ- On the sought damages ex- III to recover Count (EPA) Agency mental Protection issued liability provision of of the limitation cess that, temporarily, stop sale order at least express warranty on the Benlate within the selling prohibited DuPont from certain lots of label, the court denied. In they DF contami- Benlate 50 because motion, denying the circuit court stated this nated with the herbicide atrazine. Benlate of finds a matter law “[t]he that Court adulterated, its DF was deemed sale warranty products disclaim- that the Benlate an unlawful act under the Feder- constituted provisions of remedies are ers and limitation Insecticide, Fungicide and Rodenticide al case.” under facts this unconscionable (FIFRA). (1992) Act, 136-136y §§ 7 U.S.C.A. ruling, the circuit court a result of this As stop In March the EPA issued second jury disregard eventually instructed selling prohibiting DuPont from sale order liability provision within the DF. the limitation Benlate 50 Ben- atrazine-contaminated adulterated, warranty again express DF was deemed on Benlate label. late 50 sale, again, its constituted an unlawful Liability moved several Defendants under the FIFRA. March act On realign times have the circuit a total recall of Benlate 50 DuPont instituted plaintiffs. The Declaratory Defendants as DF, longer sold Ben- after which DuPont no motions, because it circuit court denied these late 50 DF United States. Declaratory Defendants were found As a Plaintiffs. re- to the Tomono adverse Pre-Trial Motions C. selection, sult, jury De- during trial, Before DuPont and other Liabili- eight total had six of defense’s fendants partial summary ty moved for Defendants Declaratory peremptory challenges, and the asserting FIFRA judgment, that had the other two. Plaintiffs’ claims. preempted several particular, Liability Defendants con- In D.Discovery (1) regula- FIFRA’s federal tended very Discovery in matter was conten- governing warnings tory set scheme Benlate, Du- tious. As the manufacturer labeling packaging pesticide on forth possession had and control Pont exclusive imposing additional state law prohibited relating to majority documents vast and, thus, warning requirements on labels The Plaintiffs’ dis- defects Benlate. Plaintiffs’ preempted the FIFRA sought hundreds of thou- covery requests granted partially The circuit court claims. documents, including documents sands partial motion for Defendants’ privileged. judgment regarding pre- FIFRA DuPont claimed were summary issues, neg- objections, dismissing emption response the Plaintiffs’ some of DuPont’s I liability stonewalling. claims in Counts ligence and strict DuPont of Plaintiffs accused that those claims II the limited extent discovery in No- the commencement of From labeling inadequacies in the related to post-trial issuance of until the vember packaging of Benlate. May punitive sanction order an amended fifty-four court issued the circuit grant However, court did not Of those against DuPont. partial orders motion for Defendants’ *10 orders, fifty-four discovery twenty-seven im- Keeler been shown a docu- had posed discovery sanctions for violations. ment that results of summarized the Benlate findings Five of the contained orders testing that DuPont had carried out or com- intentionally DuPont had withheld material document, Upon missioned. review evidence from the Plaintiffs. DuPont chal- Benlate-testing Keeler had testified that the lenged discovery the circuit court’s and other summary appeared accurate. to be Keeler pre-trial filing petitions orders three for identified three contain- sets documents as writs of mandamus in this court in Case Nos. ing nearly percent of all one hundred con- which we denied. tamination test of Benlate 50 DF. results However, case, in the instant DuPont had not E. The Trial identified these test results in Benlate re- months, The trial lasted seven June sponse previous court circuit orders. As a January 1994 to The crux of the Plain- result, the- Plaintiffs moved sanctions tiffs’ case was that a defect in Benlate had DuPont, against requesting, among other injured soils, plants, their and farm struc- things, that the circuit court admit into evi- (1) tures. The Plaintiffs asserted that: Ben- Benlate-testing summary, dence the an 84- late had been contaminated with atrazine and sulfonylureas, herbicides, page summary are which when the contamination test results it; manufactured Defendants DF Benlate manufactured from 1987 to (2) benomyl produced phyto- in Benlate (hereinafter referred as Exhibit P- butyl isocyanate toxic substances called 9369A). granted The circuit court the Plain- dibutylurea. Because of these de- and/or request tiffs’ to admit Exhibit P-9369A into fects, crop damage. the Benlate caused evidence. One of the during controversies occurred later, Several Exhibit P-9369A months be- opening statements, when the Plaintiffs’ major came the source of the second discov- counsel made a brief reference to a verdict ery dispute. When took the against Keeler witness DuPont another case entitled Pe Brothers, E.I. terson Inc. v. DuPont stand in the De instant case November Greenlight Nemours and Co. and Chemical P-9369A, the Plaintiffs showed him Exhibit Co., 91-CI-12100, Case No. 24th Judicial again and Keeler vouched for its overall ac- County, District Court of Texas. Bexar Fol However, month, curacy. following nine lowing objection, an counsel for the conclusion, days before the trial’s Plaintiffs for a mistrial. moved After that, during yet deposi- discovered another hearing arguments parties’ regarding case, tion in produced the Florida Keeler had ease, relevancy of the verdict to the instant a stack of documents included four the circuit court the motion. denied pages of Benlate test results that had not major discovery There three least been included in P-9369A. Exhibit re- trial, disputes during occurred sponse, again the Plaintiffs moved for sanc- when Plaintiffs’ counsel discovered relevant DuPont, against arguing tions that DuPont showing documents herbicide contamination intentionally had those test withheld results of Benlate at numerous farms where Benlate agreed from the Plaintiffs. The applied. had been In each of these three with the appro- Plaintiffs that sanctions were major discovery disputes, DuPont had failed priate properly because DuPont had not produce properly identify to either docu- produced identified test results in response previous discovery ments re- response interrogatories. to the Plaintiffs’ quests orders. and circuit court Accordingly, the circuit court Du- sanctioned during example, July For the trial in late (1) by, among things, Pont allowing other 1994, the Plaintiffs moved for sanctions plaintiffs pages to introduce four test upon based results into trial evidence in the as Plaintiffs’ testimony deposition of a DuPont em- K-41, allowing Exhibit the Plaintiffs’ (Keeler), ployee, Dennis Keeler a Benlate- jury excerpts counsel to read to the selected related entitled ease Florida Smith v. Du- Pont, 92-240-CA, deposi- from Keeler’s 1994 Florida Third December Case No. Circuit Court, deposition testimony. tion Florida. At that on June 8 *11 during jury, circuit court barred DuPont’s major discovery dispute and the
The third relating any subsequent to rebut- experts offering scientific from trial involved documents Inc., testing Laboratory, Analytical that Alta testimony response in Dr. tal to Johnson’s (Alta) in performed behalf had on DuPont’s however, Liability Defen- testimony; response litigation. to Benlate-related other depositions use of were allowed to dants testing sought validi- Alta’s to determine the witnesses, expert Robert two DuPont’s of many ty of Benlate-related claims nationwide Peterson, in and Robert cross-exam- Betham regarding resulting soil from contamination addition, Du- ining Dr. Johnson. In because case, application. Earlier in this Benlate previous a court order Pont had violated provide the Plaintiffs agreed DuPont had to DuPont, imposing against the cir- sanctions relating Alta with the test results to impose its intention to cuit court announced soils, had the work- own but DuPont invoked against punitive Du- an additional sanction privilege with to the Alta product a date. Pont at later relating plaintiffs to the of test results soils rested, but After Acting upon other Benlate cases. closing arguments, the circuit court prior to master, discovery a re- recommendation of punitive hearing held on the sanctions on Judge (Discovery T. Takao Mas- tired Frank Finding January that DuPont had 1995. Takao), DuPont ter the circuit ordered intentionally docu- withheld informatipn (Alta produce Alta results docu- to test during produced that it have ments) ments should eases, relating to all the other Benlate discovery, court sanctioned Du- the circuit subject protective prohibiting to orders (a) by, among things, ordering distributing other the Alta Pont Plaintiffs’ counsel plaintiffs’ pay in other Ben- million fíne the State documents counsel DuPont $1.5 (b) emergency Hawai'i, re- sought protective lifting previous late eases. DuPont or- compelling court’s decision confidentiality view of the circuit concerning ders by petition- of Alta production documents documents, exception docu- with the of those mandamus, but, ing this court for writ (c) secrets, and trade ments that contained petition with- we denied the Case No. give declaring that the circuit court would prejudice. out reflecting Du- jury remedial instructions discovery explaining misconduct involving Pont’s discovery dispute the Alta The 1994, during recalled that Dr. Johnson was erupted October Jodie documents trial, phase testify regarding when the informa- the defense Plaintiffs’ case in a case in Texas1 plaintiffs Benlate-related had withheld from the tion that DuPont documents, includ- six of Alta order, obtained boxes March Plaintiffs. In its issued relating testing of ing soils material following: stated the the circuit court ' contamination, that DuPont had Benlate ORDERED, AD- HEREBY IT IS in re- produce case failed to instant AND DECREED as follows: JUDGED discovery previous sponse to the Plaintiffs’ the histo- .Court has considered 1. The requests. Plaintiffs discovered this fact case, discovery ry in this the numerous DuPont, al- for sanctions moved Plaintiffs, compel filed motions to previously leging that DuPont should pro- has this Court the remedial sanctions during Alta produced all of these documents Du gressively imposed on Defendant Pont litigation pursu- this phase of intentionally finding Du Pont after response, to circuit court order. ant and documents withheld information motion the Plaintiffs’ granted circuit court during produced discov- have been should specifically The circuit court for sanctions. ery. non-production of the found that DuPont’s has also considered 2. The Court As a sanc- was intentional. Alta documents by Judge Elliot and oth- made statements tion, Plaintiffs court allowed the Judges the United States throughout er witness, principal Dr. causation recall their litigation which is the regarding Benlate Johnson, present stand to his Jodie subject of this lawsuit. interpretation the Alta documents to the . Texas, provided the title this Although neither them 1 both the Plaintiffs particular case. case Defendants referred to Benlate-related engage would note that is Court there Order that Du Pont cannot in such dispute Judges no that other on the record conduct. *12 strong
have made to Du Pont statements 10. This that Du Pont Court ordered regarding discovery abuse. identify pertaining documents to Plaintiffs’ 4. Of to concern is the Den- interrogatories. Court This even as Court went deposition nis Keeler which was held in many as if saying pertains far it to so June, 1994 the mainland this on pages identify that Du Pont must those subsequent receiving Court’s Order Exhib- However, specific pages. this Court did upon it P-9369A in evidence based specific requirement, enforce not that finding that Court’s that recognizing this progressed, case information .should, produced have been and was inten- litigation, numerous in documents this nor tionally by withheld Du Pont. request pages being did Plaintiffs five re- 5. On December Keel- Dennis sponsive interrogatory. to an appear deposition er was at a ordered 11. This has Court also considered pursuant to two other in Courts’ orders privilege log produced that was in- regarding other eases on mainland copy produced Master and a which was pertaining formation to Plaintiffs’ 9369A. Court was not the same. 6. This Court found that the informa- 12. This finds that Court this Court in responsive tion P-9369A was to Plain- spent discovery numerous hours over mo- Pont, discovery requests yet tiffs’ Du even imposing tions. This Court is not being produce ordered to after infor- party a a litigation sanction for what in is mation, update did not that information. However, pursue. entitled this Court is Plaintiffs discovered this information when a concerned about abuse in case this of deposed Mr. Keeler was on December magnitude. are complex issues 1994. enough discovery. in without misconduct remedial, Considering 1. this Court’s 13. The Court would note that in a sanctions, progressive finding this Court’s conditionally Federal Court Du Pont was Mr. respon- Keeler’s information was $500,000.00 Judge sanctioned which the in- produced, sive and ordered to be Defen- to million creased dollars. $1 Du produce dant Pont’s failure in- 14. The Court would also note that formation, having Court reviewed pending there are other Benlate cases deposition the December of Den- the State of Hawaii and in order to fashion regarding why nis Keeler the reasons this a sanction that would Du deter Pont produced, information was not this Court acting way it least did in this again Du en- Pont finds Defendant State, following the Court will order gaged pattern discovery in a abuse. sanctions: throughout 8. Du Pont this trial stone- In considering totality A. words, In walled. other as this Court conduct Du of Defendant Pont previously, Du stated Pont cannot build case, this as well as the statements ignore around wall each case and informa- Judges the other on the record produced tion in those cases. other jurisdictions^] from other as re- regarding issue this case whether or not ferred to Plaintiffs’ memorandum Benlate is defective is similar to those exhibits, considering the or- other cases. vacated, ders that were and consid- engaged 9. Du has Pont what this ering Du Pont’s wealth financial dump Court would characterize as truck status, this Court finds that in order ( n 0) discovery. Forty boxes documents abuse, type discovery to deter this “dumped” pursuant Plaintiffs that Du Pont be sanctioned $1.5 interrogatory request an which made million dollars. asking come back to Court this Plaintiffs specifically identify pay Pont Du Du what B. Pont shall Plaintiffs’ doc- attor- responsive interroga- neys’ uments were to their fees and costs which were in- that, discovery tories. Prior to this an Court issued curred as result of the by requested was pre- This information abuse. Plaintiffs’ counsel shall pare regard- an trial and should and submit affidavit Plaintiffs before the ing attorneys’ and costs fees Du As produced Defendant Pont. been incurred as result of the did not discover a result Plaintiffs process; January until evidence case, That issued C. the Protective Orders considering the issues of this concerning the this Court Du may Defendant Pont’s you consider confi- dentiality be Du Pont documents withholding give it the this evidence and exception with the those any, you appropriate. lifted documents which if weight, deem *13 contain trade se- jury the instructed the The Court also crets; and (I) causes of action: Plaintiffs’ three distinct imposed as D. As a remedial measure (II) liability in the de- negligence and strict sanction, part the punitive of this (III) Benlate; and sign or manufacture of Jury be will instructed follows: Ben- express warranty on the of the breach Dr. You are instructed that Jodie specifically circuit court also late label. The Johnson was recalled the Plaintiffs’ “may find jury it not the instructed information, testify regarding to case strictly negligent liable Defendants or by requested before trial the which was failure, warnings on any, provide if to by Du Plaintiffs and withheld Defendant packaging.” or the Benlate label Pont. information Plaintiffs discovered this Judgments and G. The Verdicts Dr. first after Johnson testified. jury the returned January On added.) (Emphases Plaintiffs on all three verdicts favor the Jury F. Instructions jury specifically, the of action. More causes (1) “there'was a defect found that: order, punitive sanctions Pursuant to its to design the Benlate sold manufacture or following gave remedial (2) Plaintiffs]”; Defendants jury: [the instructions “engaged in the business of manufac- Jod[ie] Dr. are instructed that You selling formulating, packaging, or turing, in the Plaintiffs’ case Johnson was recalled (3) Benlate”; “such defective testify which was such defective regarding to information damage by legal [the to requested Plaintiffs and cause [was] before trial Benlate (4) Plaintiffs]”; by Du Pont. Plaintiffs “Defendants withheld Defendant Benlate”; Dr. respect this information after John- discovered to negligent with [were] (5) son first testified. legal cause of negligence [was] “such (6) Plaintiffs]”; test results are instructed that the damage [the You to P-9369A, express in Plaintiffs’ Exhibit war- contained one of [at the] “breached least interrogatories, responsive to Plaintiffs’ to Benlate sold regarding label ranties on the by De- from the Plaintiffs were withheld Plaintiffs]”; “breach and DuPont’s [the Du Pont. fendant legal express warranty [was] on the label by the requested was This information damages Plaintiffs].” to [the cause of should have the trial and Plaintiffs before prayer for respect to the Plaintiffs’ With by Du Pont. produced Defendant been jury “by clear damages, found punitive not this evidence Plaintiffs did discover [Du- that Defendant convincing evidence July, the start of this trial. until 1994 after damages[.]” punitive Pont] liable for [wa]s in- are further instructed You result, the follow- jury awarded As a deposition Keeler formation in Dennis damages $8,399,000 compensatory ing: relating con- of December punitive damages to the $12,500,000 in packaged Defen- Benlate tamination of $1,180,000 Plaintiffs, compen- Tomono Exhibit Bartlo relevant to Plaintiffs’ dant $1,770,000 punitive satory damages P-9369A, Exhibit including Plaintiffs’ These Farms. damages to Kawamata interrogato- responsive Plaintiffs’ K[-]41 injury on the awards were based ries, withheld from Plaintiffs was also crops. Plaintiffs’ Du Pont. Defendant jury any The did award even if the circuit court had ordered the “soil restora- damages” tion “farm experts’ structure restora- disclosure of the identities and their damages” information, tion or the any testimony part to the Plaintiffs Declar- on the that, atory jury The Defendants. found Tayama Drs. and Koranski would not have any the extent Plaintiffs were controlling, nor been material and would it negligent, negligence the Plaintiffs’ was not changed the outcome of the trial. legal damages. jury cause of post- Defendants also filed a also found that Tomono Plaintiffs were notwithstanding judgment trial motion for Declaratory not liable to the Defendants for that, verdict, jury contending because the waste, negligence, breach of contract. Ac- injuries concluded that Plaintiffs’ were a cordingly, jury damages awarded no loss,” than result of “economic rather dam- Declaratory Defendants. structures, age to the soil or farm the eco- Because the Tomono Plaintiffs and the Li- nomic precluded loss doctrine Plaintiffs from ability prevailed any recovery in tort as a matter of law. The Declaratory Defendants’ counterclaim judgment circuit court denied the motion cross-claim, court awarded verdict, notwithstanding concluding, *14 in costs favor of Tomono Plaintiffs and Lia- majority among things, “[t]he other bility against the Defendants and Declarato- compensatory damages Plaintiffs’ awarded ry Defendants as follows: jury replacement plant were for costs (1) Plaintiffs, respect with the Tomono to plant inventory damages for the to Plaintiffs’ $7,654.16; property,’ [that] constitutes ‘other (2) DuPont, $11,072.59; respect with brings out of the therefore this case realm of (3) the economic loss Platte, doctrine.” respect with Agri United Products, Loveland, Hasegawa, and timely filed Defendants this $949.56; and 12, 1995, appeal. September On this court (4) International, Terra interlocutory appeal consolidated DuPont’s $1,182.06. lifting previous- from the all sanctions order orders, ly-entered 18736, protective Case No. H. Post-Trial Motions appeal. with this Shortly trial, after conclusion of the verdict, Shortly jury after the the Plaintiffs (Bartlo) Packaging, DuPont and Bartlo Inc. that, discovered v. DuPont case Smith newly moved for a new trial based on discov- Florida, in DuPont had disclosed additional fraud, involving alleged ered evidence regarding information Benlate contamination misrepresentation, or misconduct of the intentionally pro- that DuPont had failed to Plaintiffs. DuPont and Bartlo asserted that identify response duce in Plain- and/or the Plaintiffs had the involvement concealed interrogatories tiffs’ in instant case. scientists, Harry expert Taya- of two Dr. K. discovery, Based on the circuit this Koranski, by having ma and Dr. David S. punitive amended its earlier sanction order identify in response failed to either scientist by, among things, awarding other the Plain- discovery Defendants’ re- attorneys’ tiffs additional fees and costs and quests, by having and failed to assert reaffirming previous million fine $1.5 However, privilege. the circuit court denied against DuPont. (1) trial motion for a new because: upon post-verdict discovery Based circuit court had ordered disclosure of part further misconduct on the (2) product; these their work consultants or DuPont, Declaratory Defendants filed a response past in to DuPont’s motion to com- May motion for a new trial on On pel discovery, properly had the Plaintiffs 19, 1995, July court denied the product privilege regarding claimed work Declaratory motion for a new Defendants’ (3) consultants; identities of the Plaintiffs’ trial, stating, pertinent part, following: given adequate DuPont an Plaintiffs had opportunity samples Benlate obtain Defendants/Crossclaimants/Counter- pérform require- claimants do not the three the Plaintiffs tests on meet and to those trial; samples presentation at forth in ments for a new trial set Orso v.
229 Honolulu, no evidence Haw. it withheld contained County documents City and (1975). 241, 250, August Defen- sulfonylurea P.2d On contamination. did agreed with the the district court dants/Crossclaimants/Counterclaimants pursuing the diligence due not show plaintiffs Du- Ranch and sanctioned Bush frequently it discovery at issue most since by, among things, ordering Du- other Pont discovery mo- position regarding no took pay million to the court Pont to either $101 tions. judicially approved confession of publish newspapers across the Unit- guilt selected Postr-Appeal I. Motions In re E.I. DuPont De Nemours ed States. case, jury instant After the verdict Co., F.Supp. at 1557-58. developments place in anoth significant took learning these events After about cases, namely DuPont’s Benlate-related er of litigation, August 31 Ranch Bush Co., 918 E.I. du Pont de Nemours and In re September the Plaintiffs reversed, (M.D.Ga.1995), In re F.Supp. 1524 Declaratory in the instant case Defendants Company-Ben DuPont De & E.I. Nemours filed to the circuit court and mo- returned (11th Cir.1996), Litigation, 99 late F.3d tions, pursuant to Hawai'i Rules Civil Pro- denied, E.I. de Nemours cert. (HRCP) 60(b)(3), — seeking to al- Rule cedure Inc., Ranch, Company v. Bush U.S. upon judgment based ter or amend (1997), —, L.Ed.2d 190 118 S.Ct. fraud, inten- newly discovered evidence litigation. known as the Bush Ranch also misrepresentation, and other miscon- tional litigation, Ranch Ranch the Bush the Bush part of DuPont. The Plaintiffs in federal court on the plaintiffs sued DuPont duct sought resulting Declaratory Benlate. damages from defective also *15 jury, the case was to the Although After the submitted against DuPont. DuPont sanctions their plaintiffs to settle Bush Ranch offered eventually produced Alta documents had claims, August agreed. DuPont On and case to court orders pursuant in the instant voluntarily plaintiffs the Bush Ranch sanctions, that DuPont had asserted and prejudice. claims their with dismissed under privileged Alta documents doctrine, settlement, rep- DuPont had product Plaintiffs and After the work requested related that Discovery case documents Master Takao instant resented to Ranch testing Benlate the Bush Alta had never been Ranch documents Bush resisted, DuPont DuPont but litigation. way used in proffered, or in produced, pursuant eventually produced the documents However, according trial. any other Benlate Among documents order. to a court attorneys’ tes- transcripts DuPont’s to the documents, some the Alta produced were litigation, DuPont timony in the Bush Ranch in the Bush produced DuPont had not which privi- product actually waived the work had in- litigation. The Alta documents Ranch dur- respect the Alta documents lege with experts analytical findings that some cluded July August and ing Bush Ranch trial Benlate was as would construe evidence instant case The Plaintiffs in the sulfonylureas. with contaminated (1) asser- fraudulent claimed that: DuPont’s of the Alta production a result of As product privilege had de- work tion of the case, the Bush in the instant documents documents, receipt Alta layed dis- the federal plaintiffs returned to Ranch thus, and, prejudiced the Plaintiffs at had court, half after year than and a more trict (2) trial; if had received and the Plaintiffs litigation, Bush Ranch the settlement earlier, jury might Alta documents Du- seeking petition sanctions with damages soil awarded remediation have charged plaintiffs The Bush Ranch Pont. damage punitive award. as an increased well intentionally evi- had withheld things, sought, among an other The Plaintiffs contamination, sulfonylurea dence attorneys’ fees and for the Plaintiffs’ award the district possession and which was in its litigation. the entire costs for Further- produce. it to had ordered court instant while the case April On more, DuPont had petition charged that court, the circuit appeal before this was on court and falsely represented to the district stating inten- its a minute order court issued Alta plaintiffs Bush Ranch 60(b)(3) grant tion to the HRCP Rule motion privilege been entitled to such a directing the Plaintiffs to file the neces- claim, privilege such a claim was waived sary August motion before this court for remand. by by in this case Defendant DuPont Attached sixty-page to that order was a doc- 25, 1993. fact, setting findings ument forth conclu- added.) (Emphases law, proposed sions of and a with re- order 60(b)(3) spect to the Plaintiffs’ HRCP Rule sanction, its proposed As the circuit court announced, motion. That among document (1) to: award the Plaintiffs and the Declara- (1) things, other following conclusions: tory attorneys’ Defendants additional fees jurisdiction the circuit court had over the throughout pre-trial, and costs incurred 60(b)(3) pursuant motion Rule HRCP trial, post-trial proceedings, relating to (2) powers; court’s inherent Du- misconduct, previous- which had not been engaged Pont had misconduct (2) sanctions; ly awarded as reaffirm its by asserting this case product privi- the work prior punitive sanctions order and the $1.5 lege to the Alta Bush Ranch (3) sanction; million amend its earlier documents; and that DuPont should be accurately order to reflect how the circuit Among many sanctioned. its conclusions of court would have ruled if the circuit court law, the circuit court stated conclusions of had known of DuPont’s misconduct at the 17, 22, 27, specific law represen- and 30 that time the orders were issued. The circuit tations DuPont to the circuit court re- stated, among many things, other garding production of the Alta Bush Ranch following: documents were fraudulent clear and con-
vincing spe- evidence. The circuit court also cifically following stated the in conclusions of III. ORDER
law 39 and 40: 39. This Court finds that Du Pout’s upon Findings Based the above of Fact conduct as set forth herein constitutes Law, IT Conclusions IS HEREBY litigation practices abusive specifically ORDERED, ADJUDGED AND DE- practices finds that such were done in bad CREED as follows: may properly This Court assess
faith. Judgments A The entered herein on attorney’s authority fees under its inherent *16 17, May hereby 16 and 603-21.9(1) 1995 are (6) (1985).. amended § under HRS and fees, attorneys to include the additional 40. This Court concludes that Du monetary costs and Punitive Sanction as Findings Pont’s conduct set forth in the below; detailed Fact herein demonstrates that Du Pont engaged and intentional miscon- fraud 16,1995 B. May This Court’s Amended judicial process. duct which abused the Imposing Order Punitive Sanctions faith, wantonly Du Pont acted in bad and Against Defendant E.I. Du Pont De Nem- and, oppressive therefore, reasons Company, ours and Inc. hereby is amend- authority levy Court has inherent sanc- ed as follows: tions, attorneys costs, award fees and and judgments correct and orders. pay 1. . Du Pont is ordered to Plain- Declaratory added.) (Emphases tiffs’ Relief Defendants’ attorneys and costs incurred fees The circuit following court also entered the throughout pre-trial, post- trial and conclusion of law with to DuPont’s proceedings relating trial to the miscon- past assertion that the Alta Bush Ranch duct previ- herein which have not privileged documents were under the attor- found sanctions, ously been awarded as includ- ney product work doctrine: ing, attorneys all fees and costs for this 44. This Court finds based on all the motion all proceedings attendant evidence now available to the Court that hereto. Plaintiffs shall submit affidavits the ALTA Bush Ranch documents were of fees and costs and the Court shall product privilege never entitled to work ruling regarding this case. This thereafter issue a Court also finds that even hereunder; the ALTA Bush Ranch documents could amount to be awarded if denying the previously circuit court issued an order 2. This Court’s issued partial million Punitive Sanction is motion for sum- dollar Defendants’ $1.5 warranty hereby reaffirmed; mary judgment as to breach of disagree. claims. We hereby C. This Court reaffirms the re- 16, May maining findings in the Court’s summary a circuit court’s We review Imposing 1995 Amended Order Punitive judgment order de novo under the same Against Defendant E.I. Du Pont Sanctions applied by the circuit court. Ma standard Company, De Nemours and Inc. not Corp., guire v. Hilton Hotels 79 Hawai'i regarding pat- amended herein Du Pont’s (1995). tern of abuse and intentional [Sjummary judgment appropriate if the is conduct; pleadings, depositions, answers to inter- hereby D. This Court orders file, together rogatories, and admissions Findings H Orders listed Section affidavits, any, if that there with the show L of the of Fact and Section Conclusions fact genuine no issue as to material is Law shall be corrected as noted to above moving party to a and that the is entitled accurately reflect what this Court would A judgment as a matter of law. fact is have ruled on those matters had this Court fact proof material if of that would Du misconduct found known of Pont’s refuting one of establishing effect herein at the time said Orders were issued. a cause of action the essential elements of response to the Plaintiffs’ motion for parties. asserted or defense remand, August this court issued an order on (citations, emphasis, quotation internal Id. remanding this case to the omitted); marks, original brackets see purpose allowing the circuit court for the 56(c). HRCP Rule fact, findings of conclusions court to enter its FIFRA, 136-136y §§ U.S.C.A. law, regarding and order the Plaintiffs’ (1992), comprehensive federal statute is Declaratory Defendants’ motions for fungicide regulates, among things, other 60(b)(3) Rule relief and for sanctions HRCP use, sales, grants labeling, and enforce- against DuPont. This court’s remand order FI- they authority to the EPA. Under the parties that could ment also informed the FRA, propri- may ten-page fungicide briefs limited to the no be sold United submit pursuant ety granted registered with the EPA. of the relief unless it is States 60(b)(3) August Rule motion. On wishing prod- HRCP A manufacturer to market its findings circuit court filed its registra- petition the EPA for uct must first law, fact, regard- and an order conclusions applicants § tion. 7 136a. U.S.C.A. Declaratory ing Defen- the Plaintiffs’ submitting responsible for registration are 60(b)(3) relief and for dants’ motions for Rule EPA. 40 performance data to the certain against DuPont. sanctions . (1996). Labeling §§ 158.100-158.740 C.F.R. *17 great are forth detail. requirements set
II. DISCUSSION (1996). pesticide § The 40 C.F.R. 156.10 pro- copy a of a manufacturer must include Did Not Allow the A. The Circuit Court peti- part registration posed label as of the Impose Liability on Jury to Based 136a(c)(l)(C). § If the la- 7 FIFRA-Preempted a Re- tion. U.S.C.A. Claims as accurate, pesticide Summary Judgment adequate or Two bel is not sult Its of “misbranded,” is Rulings and the manufacturer is including revoca- subject penalties, to various contend that the The 136(q), §§ registration. 7 U.S.C.A. tion of erroneously jury to allowed the circuit court 136m, (a)(1)(F), 136k, 1361, 136q. 136j that liability based on claims consider EPA to es- FIFRA also authorizes the The by entering following preempted FIFRA packaging pesti- of for the tablish standards (1) 15, 1994, the circuit April two orders: adults protect “in children and cides order partially granting the an order court issued injury resulting from or illness from serious partial sum- Liability Defendants’ motion pesti- ingestion or contact accidental preemp- FIFRA mary judgment regarding 9, 1994, regulated by FIFRA] issues; [the or devices cides on June tion 232 Rather, interpretation is informed purposes that accomplish
well as to
the other
of
136w(c)(3).
pre-
presumptions
§
about the nature of
7
two
[the FIFRA].” U.S.C.A.
emption.
The
Defendants contend
First,
indepen-
are
because the States
FIFRA,
as the law of the United
that
sovereigns
system, we
in our federal
dent
States, preempted
law
the Plaintiffs’ state
Congress
long presumed that
does
have
provides
Supremacy
claims.
Clause
cavalierly
of
pre-empt state-law causes
“shall be the
the laws of
United States
cases,
par-
pre-emption
In all
action.
any Thing
...
supreme Law of the Land
ticularly
Congress
has
in those
which
any state to the
the Constitution or Laws of
in a
which the
legislated
field
States
Contrary notwithstanding.”
Const. Art.
U.S.
traditionally occupied,
start with the
we
VI, el. 2.
powers
assumption
police
that the historic
Preemption
Congress,
en-
occurs when
superseded by
were not to be
of the States
statute, expresses a clear
acting a federal
that was the clear
the Federal Act unless
law,
preempt
intent to
state
when there is
purpose of.Congress....
and manifest
federal
outright or actual conflict between
Second,
analysis
scope
of the
of the
our
a state law estab-
and state law. Whether
pre-emption
guided
is
our oft-
statute’s
preempted in a
lishing a cause of action is
repeated
purpose
comment ...
of
given
question
congressional
of
case is
in ev-
Congress
intent.
is the ultimate touchstone
result, any
ery pre-emption
As a
case.
Inc.,
Airlines,
74 Haw.
Norris v. Hawaiian
understanding
scope
pre-emp-
(1992) (cita
of the
of
245-46,
primarily
fair
omitted),
tion statute must rest
on a
quotation
tions and internal
marks
understanding
congressional purpose.
aff'd,
512 U.S.
S.Ct.
(1994).
intent,
course,
Congress’
primarily is
L.Ed.2d 203
language
pre-
from the
of the
discerned
Congress
the issue
When
has considered
statutory frame-
emption
statute and the
pre-emption
and has included
relevant,
explicitly
legislation
provision
surrounding
it. Also
how-
enacted
work
issue,
addressing
ever,
and when
purpose
of the
is
structure
provides a
indicium of
provision
whole,
reliable
only in
as a
as revealed not
statute
congressional intent with
to state
text,
reviewing
thrpugh
but
court’s
authority,
to infer con-
there is no need
way
understanding
reasoned
gressional
pre-empt
state laws
intent
Congress
the statute and
intended
provisions
from the substantive
surrounding regulatory
its
scheme to af-
legislation.
reasoning is a variant
Such
business, consumers,
law.
fect
and the
expressio
principle
the familiar
uni-
(cita
at —-—,
at 2250-51
Id.
S.Ct.
Congress’ enact-
us est exclusio alterius:
tions,
marks,
quotation
original ellip
internal
provision defining
pre-
ment of a
original
points, and
brackets
sis
emptive
implies that
reach of a statute
express
FIFRA contains an
beyond
pre-
that reach are not
matters
clause,
the follow
preemption
which states
empted.
ing:
Inc.,
Cipollone
Liggett Group,
505 U.S.
Authority
§
136v.
States
2608, 2618,
120 L.Ed.2d
S.Ct.
(a)
general
(1992) (citations
quotation
and internal
may regulate
A
the sale or use of
state
omitted). Therefore,
Congress
marks
where
*18
any federally registered pesticide or device
preemption
in
express
included an
clause
has
State,
only
in
but
if and to the extent
the
statute,
analysis
preemption
the
starts
the
any
regulation
permit
does not
sale or
language
provision.
of that
Med
with
subchapter.
prohibited
use
this
Lohr,
tronic,
470, —,
116
Inc. v.
518 U.S.
(b) Uniformity
(1996).
2240, 2250,
S.Ct.
233 quotation accordance apparent It from marks § 136v. is 7 U.S.C.A. law, court in prevailing with case 136v(a), statutory lan § as well as other Liability granted Defen- case the instant 136w-l, § e.g., guage, 7 U.S.C.A. summary judgment partial motion for dants’ wholly does not oust the states FIFRA regarding preemption issues to FIFRA However, equally regulation. it is pesticide negligence, strict extent that the Plaintiffs’ 136v(b) § can apparent from that the states accompanying failure to warn liability, and “require apply different or additional upon II were based in I and claims Counts “labeling packaging.” and In this ments” for labeling packaging in and inadequacies context, in “requirements” the word Benlate.2 136v(b) presumptively § includes state com However, the circuit court’s order because mon law tort of action as well state causes summary judgment, — only granted partially Medtronic, regulations. laws and See summary impliedly denied the circuit court at —-—, 116 at S.Ct. 2251-53 U.S. negli- judgment to the Plaintiffs’ respect with at —, opinion); 116 (plurality id. I liability in Counts gence and claims strict J., (Breyer, in concurring S.Ct. at 2259-60 in or and for a defect the manufacture II concurring judgment); in id. at part and that these design extent of Benlate —, (O’Connor, at 116 S.Ct. 2262-63 inadequacies in were not based counts Thomas, J., C.J., Rehnquist, and Scalia Further- labeling packaging of Benlate. JJ., dissenting in concurring part in summary more, expressly denied order 521-22, 112 part); Cipollone, 505 U.S. claim judgment with the Plaintiffs’ (plurality opinion); id. at at 2620-21 S.Ct. express war- alleging III breach Count (Scalia 548-49, 112 S.Ct. at 2633-34 ranty. Thomas, JJ., concurring judgment part II, result, I and As a on Counts based part). dissenting Liability De- eventually jury found that 136v(b), § Consequently, under negligence and fendants were liable under tort claim preempts FIFRA common law liability theories for defect strict upon depends “claim to the extent Based design or of Benlate.3 manufacture labelling packaging])]” III, or inadequacies jury found that on Count also Pure-Gro, Liability v. 54 F.3d liable for breach Taylor AG Industries Defendants were Cir.1995) (citation (9th 555, express warranty.4 and internal 563 Inc., (1995); 2. See, Corp., Log Hochberg v. 421 Mass. e.g., Bldgs., 96 38 Zoecon v. Vermont Grenier 559, Cir.1996); 1263, (1995); 456, (1st King v. v. E.I. 1266-67 Ackles F.3d 563-65 657 N.E.2d 1346, Co., 573, 579, Luttrell, 273, F.2d de Nemours and 996 N.W.2d Neb. 561 252 dismissed, 985, - (1st Cir.), 329, -, denied, 114 cert. 510 U.S. 1349 139 118 S.Ct. cert. U.S. 490, (1993); 440 Lowe (1997); Cyanam S.Ct. 126 L.Ed.2d v. American L.Ed.2d 255 Lewis v. SporicidinInt’l, 124, (4th Cir.1995); 53, 724, 47 129 Co., F.3d N.J.Super. A.2d 728-32 id 294 682 Co., 744, Cyanamid 74, 5 748 v. American F.3d Worm granted, 697 (App.Div.1996), 151 N.J. cert. Co., (4th 1993); 27 Elam, v. Monsanto Cir. MacDonald (1997); Corp. v. Quest Chemical A.2d 546 Cir.1994); 1021, (5th Shaw v. Dow 1024-25 819, F.3d (Tex.1995); v. Hue S.W.2d 820-21 898 Brands, Inc., 364, (7th Cir. 994 F.2d 369-71 Inc., 67, Co., Farmboy 896 Spray 127 Wash.2d Poolmart, Inc., 1993); F.3d v. Leslie’s 39 Bice 682, (1995); v. Chemical Co. 692 All-Pure P.2d 887, (8th Cir.1994); Taylor v. AG Industries 888 697, 1, White, P.2d 701-02 127 Wash.2d 896 Pure-Gro, 555, (9th Cir.1995); Ar 54 F.3d 560 (1995). Partnership & v. Van Waters & kansas-Platte Gulf Cir.), Inc., 1177, (10th Rogers, 981 F.2d 1179 special According forms that to the two verdict 3. 813, 60, denied, 126 114 S.Ct. cert. 510 U.S. jury January jury returned on 5 Co., (1993); Papas Upjohn 98 30 v. L.Ed.2d negli- under Defendants liable found 516, Cir.), denied, (11th U.S. cert. 510 F.2d 518 (a) liability gence theories because: and strict 300, (1993); 913, 248 126 L.Ed.2d 114 S.Ct. design a defect in the manufacture “there was Corp., Crop Ariz. v. Protection 189 Barnes Sandoz Plaintiffs; (b) the of the Benlate” sold 95, 46, Hottinger (App.1997); v. P.2d negligent re- [were] "Defendants (Ind.Ct.App. Trugreen Corp., 665 N.E.2d Benlate”; (c) spect both the defective 1996); Co. de Nemours & Schuver E.I. DuPont negligence and the Defendants' Benlate denied, (Iowa), (Inc.), 614-15 cert. 546 N.W.2d damage "legal to” the Plaintiffs. cause[s] -, 136 L.Ed.2d U.S. 117 S.Ct. - Inc., Products, (1996); v. Amchem Jenkins special (1994), According the two verdict forms cert. Kan. *19 - U.S.-, 80, jury denied, January jury returned on 116 S.Ct. 133 L.Ed.2d 234 stated,
As Liability 28(b)(4)(B), Defendants HRAP Under Rule require we appellants provide, contend that' the among things, other court’s refusal following: grant aspects all partial of their motion for summary judgment regarding pre FIFRA A points concise statement of the on emption jury issues impose allowed the appellant which rely, intends to set forth liability separate, based on paragraphs. claims that the FIFRA numbered Each point alleged shall refer preempted. to the error com- Liability claim Defendants by mitted agency upon the court or that, which despite granting summary judgment appellant rely. point intends to shall to the Plaintiffs’ failure to warn show where in alleged the record the error claims, the jury circuit court instructed the and, objected occurred and where it was it could find applicable, following: where failing liable for to warn the Plaintiffs about by any the defect in Benlate means other (B) point
than the Benlate label. When the charge Case law is divided involves the court, of the there shall be set out as to whether the FIFRA does5 or does not6 specific to, part words of the referred preempt failure to warn claims that are not refused, given whether it be instructions or directly based on the language of the label. together objections urged with the at the However, we need not particular resolve this trial. preemption issue because the De presented fendants “Points waived errors in not accordance with this disregarded, section will be jury except court’s that the regarding any instructions theo court, option, may at its plain notice a ry error liability upon based failure to warn 28(b)(4)(D). presented.” HRAP Rule having comply failed to applicable with the Hawafi Appellate Rules of Procedure joint the section of opening brief (HRAP). Appeal,” entitled “Statement of Points on ("[W]hile found that the plaintiffs suggest Defendants' “breach of do that Du Pont express warranty legal on the [was a] label steps cause should have taken to warn of the fact of damages to” the Plaintiffs. dangers associated with the atrazine con DF, nothing tamination of its Benlate about this See, Co., e.g., Cyanamid. 5. Worm v. American implies 5 claim additional, different, that Du Pont should have included 744, (4th Cir.1993) ("To F.3d 748 alternatively allow the or stated warn [plaintiffs] argue warning language ings label."); product on Benlate Burke v. appears point-of-sale Co., pro 1128, or other F.Supp. Dow Chemical 797 1140 inadequate (E.D.N.Y.1992) motional material is ("If trade, when that lan warnings ... guage approved by is identical to that warnings apart the EPA packaging, from labels or limita would in effect allow the establishment of an professionals, protec tion on sales to or other requirement additional or different state law cerning falling generally con tions within the ambit warn (Citation adequate warning language.” ings should have been used when the content of omitted).); Pure-Gro, Taylor EPA[,] AG Industries v. 54 the label was fixed [the] there remains 555, (9th Cir.1995) ("[W]e F.3d 561 hold that liability question (Cita for the trier of fact.” Appellants' inadequate point-of-sale omitted.)); claim for Litigation, tion re In DuPont-Benlate warnings preempted 619, is (D.P.R.1994) ("[W]hile because their claim F.Supp. is 859 623 premised ultimately upon inadequacy claims of a failure to warn or communicate in label.”); Co., product Papas Upjohn 985 F.2d regulated product formation about a are 516, (11th Cir.) ("[A]ny point-of- FIFRA, 519 claims that preempted by claims of a failure to warn notices, signs, sale consumer or other informa about a defect of certain individual items are not adequately foreclosed[.]”); tional materials failed to warn the Corp., Macrie v. SDS Biotech 267 plaintiff necessarily challenge adequacy 34, 805, N.J.Super. ("State (App.Div.) 630 A.2d 813 warnings provided product's labeling on the may require pesticide law manufactur denied, 913, packaging."), cert. 510 U.S. steps, er like defendant to take reasonable either (1993); S.Ct. 126 L.Ed.2d 248 through Goodwin v. directly instructions to its customers or Bacon, efforts, Wash.2d through persons, its own to assure that (1995) (“We agree majority with the plaintiffs, courts produce bought like who handle direct refusing distinguish non-label ly failure to warn fungicide], from farmers who have [a used will (Citation omitted.)). claims[.]” dangers, by receiving be warned of its at least prescribed by defendant’s brochures in the form See, e.g., E.P.A.”), denied, Miller v. E.I. DuPont de Nemours and cert. 134 N.J. 636 A.2d Co., (S.D.Miss.1994) (1993). F.Supp.
235
labeling requirement under
qualify
as
can
a
specifically
to
as
Liability Defendants failed
jury
Cyan
a
any
regarding
error
instruction
v. American
sert
FIFRA.” Worm
[the]
Cir.1992).
theory
liability.
(4th
regarding
1301, 1307
a failure to
Co.,
warn
F.2d
amid
970
show
failed to
Thus,
negligent testing,
for
manu
“[c]laims
any
jury
in the record
such
instruction
where
product]
facturing,
formulating
a
are
[of
to,
occurred,
objected
they
it
where was
[by
v.
preempted
FIFRA].”
not
Worm
specific
to
out the
words of
also failed
set
Co.,
744,
Cyanamid
5 F.3d
747
American
to,
objections
part
together with the
referred
(4th Cir.1993);
Taylor
Indus
see also
AG
comply with
urged at the trial.
to
“[F]ailure
(“Claims
tries,
negligent
at 561
for
54 F.3d
28(b)(4)
to
sufficient
HRAP
is alone
[Rule]
solely upon the Manu
testing that are based
judgment of the circuit court.”
affirm the
testing
practices,
or
not
facturers’
research
Honolulu, 77 Hawai'i
v.
O’Connor Diocese of
advertising
promotion
or
... are
to
related
361,
(1994);
383, 385, 885 P.2d
363
Betten
(Citation
by
preempted
FIFRA.”
omit
not
Bettencourt,
Hawai'i
909
court v.
80
ted.)).
claims,
negligence
In addition to
(1995);
553,
County
City
P.2d
556
&
Hon
liability is
on
a “claim for strict
based
when
Inc.,
Wreckers,
Haw.
Kailua Auto
66
olulu v.
design and manufacture
theories of defective
(1983).
34,
532, 533, 668 P.2d
35
theory
labeling,
inadequate
it
and not on
Normally
policies
“the
of this
by
preempted
FIFRA.” Reutzel
[the]
is not
litigants
appeal
to
and to have
permit
are
Co.,
1272,
F.Supp.
Spartan
v.
903
Chem.
merits,
possi
on the
where
their cases heard
1995).
(N.D.Iowa
1281-82
386,
O’Connor,
P.2d
ble.”
Such
re-
law,
Cipollone,
posed
ferred to
under
505 U.S.
State
but rather
im-
S.Ct.
If,
120 L.Ed.2d
in which the
posed by
example,
United
the warrantor.
from,
by,
promised to
expressly
pay
a manufacturer
it derives
is measured
if
warranty.
a smoker’s medical bills
she contracted
terms of that
prom-
emphysema,
duty
honor
(citation
Papas,
Express promises warranties are that appellate some, all, eral district courts and one state are made but sales con- “express position court have taken the competi- Express tracts. warrantors seek voluntarily warranties that are assumed sur- buyers advantage promising tive despite relationship preemption vive representations about their certain factual 760; F.Supp. labeling.” Higgins, 862 at Ro- of an goods are true. for breach Co., warranty voluntary quality; E.I. DuPont De Nemours & express has a berson v. 238 (W.D.Ark.1994); F.Supp. Second,
863
933-34
tion.
if
permitted
states are not
Ciba-Geigy Corp.,
F.Supp.
Prather v.
852
express
enforce
warranties
relate
(W.D.La.1994) (“[W]here
pesticide
532
labeling,
warrantors will have less free-
voluntarily
war
manufacturer
retailer has
compete in the market-
dom in which to
product’s
particular
for a
ranted a
fitness
Third,
only legal
place.
if an individual’s
permitted plaintiffs to
purpose, courts have
bring
[the]
is to
a claim under
recourse
for breach of this
state law claims
assert
FIFRA,
covering
express warranties
sub-
990;
Jillson,
F.Supp.
warranty.”);
at
jects
scope
outside the
will
[FIFRA]
Laboratories,
Kenepp v. American Edwards
be futile. This court therefore holds that
(E.D.Pa.1994);
F.Supp.
Sowers
claims,
express warranty
the Plaintiffs
Medical, Inc.,
& Johnson
Johnson
they
volun-
the extent that
are based on
(E.D.Pa.1994);
F.Supp.
313-14
In re
warranties,
tarily
express
assumed
are ac-
Litigation,
F.Supp. at
DuPont-Benlate
tionable.
Babalola,
3;
623;
see also
N.Y.S.2d
*23
(citations
Higgins,
F.Supp. at
Co.,
613 So.2d
Brennan
Dow Chemical
omitted).
Higgins
espe-
footnotes
(The
131, 132(Fla.Dist.Ct.App.1993)
“FIFRA
cially noted the stark distinction between
warranty
preempt
does not
the breach of
EPA
warranties that the
mandates and war-
claim,
it
claim
since was
common law
aris
merely approves.
EPA
ranties that the
ing
voluntary
out of a
contractual commit
ment.”).
First, express
have a volun-
warranties
tary
missing
they
if
are
quality, which is
example,
in an
manufac-
For
action
by
that
EPA. The rationale
[the]
mandated
insecticides,
pesticides
Hig-
turers of
that
should be held to contracts
warrantors
gins
that
the FIFRA did not
court held
voluntarily
apply
they
enter into does not
plaintiffs claim for
of the
preempt the
breach
Second,
are
when their actions
forced.
voluntarily
express
assumed
manufacturers’
express warranties are not enforceable
relationship
labeling:
warranty, despite its
through
Congress
if
state contract law
has
grounded
are not
Express warranties
expressly preempted the law or has com-
law,
rather,
voluntarily
state
but
are
as-
pletely occupied
opera-
the law’s field of
obligations commonly employed
sumed
tion,
gain competitive advantage in
market-
as is the case with EPA mandated
such,
place.
very
As
their
nature contra-
labeling.
justifica-
foregoing
Based on the
wording
136v(b),
§
dicts the
of 7 U.S.C.
tions, we hold that EPA mandated warran-
that a
im-
which dictates
“state shall not
preempted.
ties are
pose
requirements
in effect”
continue
(citations omitted). Although the
Id. at 761
136v(b)
labeling.
(emphasis
§
7 U.S.C.
Higgins
argue
did not
defendant
Therefore,
supplied).
on strict stat-
based
express
EPA
warranties at issue were
man-
utory interpretation, express warranties
dated,
argue
the FI-
the defendant did
that
voluntarily
pre-
are
that
assumed survive
plaintiffs
preempted
FRA
claim for
emption despite
relationship
to label-
“they
express
because
breach of
warranties
ing.
However,
approved.”
Id.
EPA
argued
express
that
warran-
It has been
approval
EPA
Higgins court held that mere
they
preempted because
are en-
ties are
express warranty on the
of a
of an
label
through
contract
law.
forced
state
We
pesticide
product did not neces-
or insecticide
argument unpersuasive on three
find this
preemption
sitate
under
the FIFRA for
First,
Cipollone majority
counts.
three reasons:
clearly
Congress
that when
enacts
dictates
First, warranty
does not lose its volun-
clause,
beyond
preemption
matters
its
approval.
tary quality through EPA
Sec-
scope
preempted;
preemption
are not
ond,
Congress gives
that
the mere fact
narrowly
are to be
construed.
clauses
power
approve
EPA
labels
[the]
136v(b)
specifically
§
[of
FIFRA]
Since
legislative body
indicate that the
does not
regulations
controlling
prohibits state
from
necessarily
EPA con-
[the]
intended
labeling,
self-imposed
but
not address
does
designated on
express warranties
[s]tates,
trol over
by
are
obligations enforced
courts
Third,
...
surviving preemp-
[such
the labels.
cases
as Ci-
interpret the latter as
suggest
imposed upon
pollone
that when
are
it
themselves. As Justice Ste-
]
warranties
mandated,
approved
EPA
EPA
but not
Cipollone:
vens
noted
Congress
attempted
occupy
has
an
not
legal
apart
That
has
force
a contract
no
expressly preempt-
entire field and
not
has
acknowledges
law that
its
the state
Therefore,
[the]
ed
claims.
since
...
binding character
does not mean that
express warranty
Plaintiffs
claims are not
every
provision
imposed un-
contractual
is
EPA,
by
they
required
do
war-
[the]
not
contrary,
der
To the
common
State law.
exception
general
rant' an
preemp-
understanding dictates
a contractual
analysis.
tion
This court finds that [the]
requirement, although
un-
only enforceable
express warranty
Plaintiffs
claims survive
State,
law,
imposed
der state
is not
preemption.
imposed
contracting
but rather is
(citations
omitted).
Id.
and footnote
party upon itself.
Likewise,
case,
in the instant
Cipollone,
1. The Court finds as warranty products!’] dis- warranty. that the Benlate provi- limitation of remedies claimers and The label also stated: under the facts of sions are unconscionable Du Pont be liable In no case shall this case. damages consequential, special, or indirect that, by Liability con- Defendants assert resulting handling use or of this from the liability clause cluding that the limitation of All risks shall be assumed product. such unconscionable, warranty express was by Buyer. merely not limit itself to
the circuit court did clearly to limit Du was intended This section written; warranty it al- enforcing that liability damages sus- Pont’s enlarge and en- tered the Benlate label by as a result of their use tained consumers obligations and hance DuPont’s contractual product. of the disagree. thereby FIFRA. violated the We The label further stated: initially Defen- We note that no warranties of merchant- in the circuit Du Pont makes dants do not assert error language particular purpose ability court’s conclusion that or fitness for a liability clause was unconsciona- warranty limitation of any express implied nor other Rather, they that this conclusion ble. assert except as stated above. enlarged Du- altered the Benlate label and judge, a war- noted the trial this was As and, thus, obligations, contractual Pont’s warranty ranty dis- disclaimer. Neither preempted FIFRA the circuit court liability clause claimer nor the limitation of mandating a result. such and, therefore, FIFRA required Defen- We further note by FIFRA. escape preemption jury instruc- have waived errors dants that the limitation of liabil- court’s conclusion par- might tions that have resulted from in- did not ity clause was unconscionable order, summary judgment because ticular Lia- upon by forcing FIFRA fringe have failed to com- bility Defendants to remove or alter 28(b)(4)(B). ply with HRAP Rule *25 label; simply the limita- it deemed Benlate clearly The circuit court differentiated be- warranty dis- liability clause and the tion of warranty, limitation of express the the tween Liability The Defen- claimer unenforceable. clause, warranty liability and the disclaimer it their label. were free to leave on dants denying it crafted its order the Liabili- when enlarged ruling The circuit court’s neither partial summary ty motion for Defendants’ obligations of nor enhanced the contractual warranty judgment on breach of based express Liability under the the Defendants warranty, the claims. Under its notice warranty because the order of the label stated: warranty; express speak not to the court did product con- Du Pont warrants that this liability only the limitation of it referred description to the chemical forms By warranty and the disclaimer. clause reasonably pur- fit for label thereof and is liability clause holding that the limitation of only used poses stated on such label when warranty were unconscio- and the disclaimer the directions under accordance with nable, expand the the circuit court did not normal use conditions. under tort law Liability Defendants’ duties This, warranty. clearly, express was an already obligations and duties because those Liability respect Defendants’ With prior of the circuit existed to the issuance summary judgment order argument that the order. court’s by altering the FIFRA the Benlate violated circuit court did not violate enlarging DuPont’s contractual ob- label and by concluding the limitation of FIFRA that, by their own ad- ligation, reiterate we warranty liability clause and the disclaimer mission, voluntarily Liability Defendants The FIFRA cannot be were unconscionable. warranty express on the Ben- assumed the a manufacturer to avoid interpreted to allow require EPA Because the did not late label. liability merely by placing a disclaimer FIFRA, tort warranty pursuant to the express an words, a manufacturer on a label. other preempt FIFRA did not the circuit .In fungicide escape liability by of a cannot alleged tort of the three instances of errors placing a disclaimer on a label and then shows, instances, in two the circuit court did claiming preemption under the FIFRA. err, and, instance, in the third light court’s error was harmless.
Accordingly, we affirm the circuit court’s
(1)
overwhelming
sup-
substantial
evidence
partially granting
Liability
orders
verdict,
partial
summary
porting
jury’s
we
Defendants’ motion for
hold
judgment
regarding
preemption
FIFRA
is-
alleged
cumulative effect of the three
errors
(2)
sues,
denying
Liability
Defen-
deny
Liability
did not
Deféndants their
partial summary judgment
dants’ motion for
right
constitutional
to a fair trial.
Maguire,
warranty
as to breach of
claims.
Applying these three factors to the (1) eventually up during ments turned trial. As specifically instant case: the circuit court result, physi- the trial court sanctioned the intentionally found that DuPont had withheld by instructing jury cian physi- numerous documents blatant violation of pending application cian had no for federal previous compelling discovery court orders (2) documents; approval disputed procedure of his medical those because the documents empirical interpreted could and no data to demonstrating be liabili substantiate his ty Defendants, part proce- on the claims his brochures on the medical withholding preju allowing ju- DuPont’s dure rather than otherwise these documents Plaintiffs; diced the it rors to would be make this factual determination for inequitable for DuPont to benefit from its Cal.Rptr.2d themselves. Id. 51 at 325. On discovery own misconduct appeal, Appeals and the Plaintiffs’ the California Court of held inability acquire possession inculpating that the trial “court within acted its discre- prior documents [by] commencement of imposing tion the issue sanction tailored trial. Based on the three factors that we particular discovery to the defendants’ mis- Richardson, utilized severe sanctions implementing use and that sanction against DuPont for its inexcusable jury instructing the that various facts should clearly justified. misconduct were be taken as established defendants.” however, significantly, Id. at 326-27. More However, the facts of Richardson the Vallbona court stated that “even if we distinguishable are from the instant case. challenged jury special deemed the instruc- defendant in Richardson never While the. error, tion to be we conclude would defen- produced original copy of the incident prejudice dants suffered no since this report, eventually produce, did albeit reasonably likely it an record is not outcome belatedly, the Alta documents. Further more favorable defendants would have more, power party to sanction a resulted absent such error.” Id. at 327. discovery misconduct is within the exclusive court, province jury. of the circuit not the agree We Vallbona reading This is self-evident from a of HRCP that, court’s a trial statement even when 37(b), Rule which allows the circuit court to in a civil trial abuses its discretion party “obey sanction a that fails to an order giving jury inappropriate an remedial provide permit discovery.” See also instruction, affirm we will nevertheless 603-21.9(1) (6) (1993). §§ HRS The cir jury’s appears verdict when it from the rec and, disregarded principle cuit court reasonably likely ord as a that it is whole thus, by instructing abused its discretion that an outcome more favorable to the defen jurors they could consider DuPont’s error, dant would have resulted absent the withholding give of the Alta documents and it and, thus, preju the defendant suffered no any weight they appropriate. deemed stated, previously dice. As we have “errone presumptively ous instructions are harmful Nevertheless, light of the over *28 ground and are a unless it affir reversal whelming supported jury’s evidence that the verdict, matively appears from the record as a appellate whole a California court’s decision 1525, prejudicial.” that the error was not Springer, Cal.App.4th Vallbona v. 43 State ex (1996), Cal.Rptr.2d Corp., 311 In is instructive. rel. Bronster v. United States Steel (1996) (em- seeking a determination that the insurance
Hawaii added) (citations quota- internal phasis Before policy did not cover the accident. marks tion trial, the trial court to the Cawthons moved realign plaintiff, of education as a the board The adduced at trial overwhelm- evidence i.e., In co-plaintiff particular, a with Waco. supported jury’s regarding ingly the verdict they the concerned that Cawthons were liability, damages. damages, punitive that, of would be forced to share half hold under the circumstances of this otherwise We case, affirmatively appears strikes,” i.e., the it record “jury peremptory their chal- DuPont as a whole that and the other Liabili- education, lenges, the board of whose ty prejudice not as a Defendants did suffer to clearly adverse the Caw- interests inappropriate of circuit court’s re- result the trial court the thons’ interests. The denied Thus, although jury medial instruction. the realign “it had authori- motion to because no through its circuit court abused discretion ty realign parties.” to at 33. Id. S.E.2d sanction, particular hold that the we However, Supreme re- Georgia the Court circuit court’s error was harmless. versed, holding trial have court did realign parties to “the the discretion The the Lia- Circuit Court’s Denial of justice.” not- The Cawthon court interest bility Realign to Motions Defendants’ multiple parties aligned ed that are on “that the Parties the same side a case have adverse Liability the Defendants contend that per- to interests are entitled additional Liability the circuit court denied Defendants Thus, emptory strikes[.]” Id. Liability by denying trial Defen- a fair the if the trial court had exercised its discre- realign parties. dants’ motions to the We to tion and denied the Cawthons’ motion disagree. realign, the an denial would have been the A circuit court has discretion of discretion under the circum- abuse realign any stage of the parties to the Those stances of this case. circumstances just. terms action on such as are Caw fact have include the that the denial would Co., thon v. Waco Fire and Cas. Ins. 259 Ga. (as given the failure exercise did court’s to (1989). 386 S.E.2d A trial court’s discretion) only its the Cawthons three ruling realignment on motion for re is strikes, jury given but would viewed under the abuse of discretion stan parties asserting contrary legal and factual Id. dard. jury nine contentions strikes. Although Liability Defendants ' Id. circuit court’s failure rea assert parties lign the resulted “manifest and However, is distin the instant case prejudice” to and the severe other that, guishable unlike the from Cawthon Defendants, Liability only of preju form Cawthon, co-parties Liability Defen Liability specif Defendants dice which split not have half the de dants did ically refer the fact is eight peremptory challenges fense’s total eight total allocated two defense’s co-defendants, Declaratory De with their challenges Declaratory peremptory only court allocated fendants. argument, support In Defendants. eight peremptory two chal of the defense’s rely primarily Defendants defendants, and, lenges declaratory Cawthon, Cawthon, supra. an automobile thus, Defendants retained son while he struck killed Cawthons’ remaining peremptory challenges for six highway attempting was to cross three-lane Kawamata Farms themselves. Meanwhile Waco Fire and to catch school bus. Casu Tomono Plaintiffs shared a total (Waco) alty had issued an Insurance Co. Therefore, eight peremptory challenges. policy insurance board education denying mo effect of the circuit court’s covering school bus accidents. While the much realign tions in the instant case was wrongful pend death was Cawthons’ action than less declaratory severe ing, Waco filed a action education, co-parties it Al- and the was for Cawthon. the Cawthons board *29 Inc., Repair, though Liability Defendants had two less Carter v. Tom’s Truck Plaintiffs, (Mo.1993)(citations 172, 177-78 challenges than the peremptory S.W.2d omit ted). [ejxact equality numerical between sides is equalization peremp- purpose not the The Defendants have neither Rather, purpose tory challenges. is to they peremptory shown that exhausted their parties equalize positions of the juror, challenges prospective nor that a side, prevent antagonistic among the one they challenged, whom would otherwise fact parties on certain matters of Therefore, jury. served on the concerned, they primarily will be but i.e., argument, Defendants’ the circuit side, opposition united to the other realignment court’s denial of the motions for selecting jury. adversely peremptory affected the number of Wendt, Corp.
Diamond
v.
Shamrock
challenges
disposal,
their
lacks merit.
(citation
(Tex.Ct.App.1986)
S.W.2d
circumstances,
Under
these
clearly
court did not
exceed the bounds of
635-29(b) (1993),
§
a
Under HRS
disregarded
principles
reason or
rules or
require eo-par
circuit court is authorized
practice
law or
to the substantial detriment
peremptory challenges:
ties to share
by denying
Challenging
peremptori-
§ 635-29
Therefore,
realign
parties.
motions to
ly....
discretion,
the circuit court did not abuse its
(b)
party
each
shall be al-
civil cases
deny-
and we affirm the circuit court’s orders
ju-
peremptorily
challenge
lowed to
three
ing
motions.
these
rors,
assigning
without
reason there-
are
or more
for. Where there
two
Lia-
Denial
Circuit Court’s
defendants,
more
plaintiffs or
two or
a Mistri-
bility
Motion
Defendants’
for
single par-
they may be considered as a
Following
al
Counsel’s Ref-
Plaintiffs’
making
ty
purposes
perempto-
DuPont in
erence to Verdict
may
ry challenges, or the court
allow
Another Case
peremptory
challenges
additional-
separately
Liability Defendants contend
permit
exercised
them
be
Liability Defen-
jointly.
peremptory
deprived
If
or
additional
circuit court
by denying
parties on
trial
their motion
challenges are allowed to the
dants of a fair
side,
party
parties
Plaintiffs’ counsel
opposing
a mistrial after the
one
peremptory
from another case
may
allowed additional
to a verdict
be
referred
challenges.
disagree.
against DuPont. We
mistrial should be
“A motion for
added).
(Emphasis
“The determination
of such
there is an occurrence
granted when
[of
erred in allocation
whether the trial court
party
is de
magnitude
character
time it
challenges] is made at the
peremptory
Aga v. Hun
right to a fair trial.”
nied the
upon hindsight.”
makes its decision and not
1022, 1037
dahl,
78 Hawai'i
Frankson,
Cyanamid
American
Co.
(1995).
court’s
review of a trial
“Appellate
(citation
(Tex.Ct.App.1987)
S.W.2d
under the
for mistrial is
ruling on a motion
omitted). Moreover,
Id.
abuse of discretion standard.”
judgment
not be reversed unless
will
opening
in the instant
challenges
During
statements
awarding peremptory
error
case,
made the fol-
for the Plaintiffs
litigants having
counsel
litigant,
multiple
to a
or to
against lowing reference to a verdict
interest,
prejudi-
is shown to be
the same
Brothers,
case,
Inc. v.
Peterson
in a Texas
prove the existence
cial.
In order to
De Nemours and Co.
party must E.I. DuPont
complaining
prejudice,
Co., Case No. 91-CI-
Greenlight Chemical
peremptory
his
it exhausted
show
of Bexar
juror,
24th
District Court
Judicial
challenges
prospective
and that a
(hereinafter
”),
“Greenlight
in-
County, Texas
party
have oth-
challenging
would
who the
stricken,
jury.
volving Benlate:
on the
served
erwise
*30
verdicts,
about the other
opening
...
statement
PLAINTIFFS]:
FOR
[COUNSEL
’80 n
in
defense counsel’s
had a case
the
court sustained
Du Pont —Du Pont
the trial
Ben-
involving
allegation
testimony
an
that
in Texas
such
was
objection that
rebuttal
gaseous some-
the same kind
irrelevant, and,
arguments,
late had
closing
during
of—
coming
coming off
was
thing was
the DBU
to
additionally
refused
allow
the trial
up
put
memo
off.
haven’t
the whole
We
argument
plaintiff to offer a rebuttal
the
page of the
But this is the last
here.
appeal,
regarding the other verdicts. On
the
litigation.
that talks about that
memo
“prior ver
Supreme
that
Alaska
Court noted
case,
they actually
in this
where
And
subsequent
not relevant
in
trials
are
dicts
court,
they
a verdict
had
went
to
parties
factual set
involving different
them, this—
against
improper for
It follows that it
tings.
[wa]s
Excuse
DUPONT]:
FOR
[COUNSEL
disposition
to the
counsel
advert
[defense]
Honor,
me,
highly improper,
that is
Your
during argument
or similar cases
of the same
that.
for the
knows
Plaintiffs]
[counsel
jury.”
propriety
at
“The
Id.
objection,
Following the
counsel for
prior
disposition
to the
cases
references
hearing
par-
moved for a mistrial. After
distinguished
propriety
from
must be
regarding the relevance
arguments
ties’
generated
which
incidents
references
verdict,
that
court concluded
de
litigation.” Id.
n. 8. Because
at 8
such
Greenlight
relevant
issues
were
some
other ver
reference to the
fense counsel’s
case, and, thus,
the motion
denied
instant
proffered
improper,
plaintiffs
dicts was
for a mistrial.
“testimony
argument
have been
or
should
argue that
Defendants
curative admis
under
doctrine of
allowed
by denying the motion for
circuit court erred
(internal quotation
sibility.” Id.
marks
likely
give a
jury
“[a]
because
is
mistrial
omitted). Nevertheless,
and footnote
prior
against
defendant
verdict
the same
harm
court held that this error was
Harried
The admis-
weight than it warrants.
more
plaintiffl’s
[the
“the exclusion of
less because
possibility
prior verdict
sion of a
creates
argument
[wa]s not
rebuttal evidence and
jury
result
will defer to the earlier
reversal.”
sufficiently prejudicial to warrant
will, effectively,
a case
and this
decide
(citations
Id.
it.”
Co.
Motor
evidence not before
Coleman
harm-
was
conclusion that the error
Our
(3d
Chrysler Corp., 525 F.2d
a week inter-
rests on the fact that
less
Cir.1975).
response,
Plaintiffs assert
In
opening arguments and
between
vened
that,
assuming, arguendo,
the cir-
that
even
jury
of the
submission
case
by
basing its denial
cuit court erred
period,
During that
deliberation.
conclusion that some issues
motion on its
testimony from
jury
days
heard several
case,
Greenlight
relevant to the instant
Throughout
this
numerous witnesses.
harmless,
the refer-
error was
because
such
testimony, no
mention was made
further
not an
by the Plaintiffs’ counsel was
ence
regarding prior
litigation, nor was the
magnitude
such
occurrence of
character
by
questioned
[de-
statement
reiterated
it
that
denied
closing argument.
during
counsel
fense]
right to a fair trial.
significance
fact that the
further
is the
Of
argument, the Plaintiffs
support
of their
specifically
it was “to
jury was
instructed
Corp.,
Dura
Aero/Chem Tayama identities of Drs. Koranski and Cir.1990) (citation quotation and internal product. their work In pretrial discovery omitted); Etudes, Lafarge marks Conseils Et hearings, properly the Plaintiffs claimed the v. Gypsum Corp., S.A. Kaiser Cement & 791 attorney product privilege regarding work (9th Cir.1986); F.2d Bunch product consultants’ identities and work States, (9th United 680 F.2d Cir. 26(b). pursuant Rule HRCP The Plain- 1982). findings Based on the circuit court’s appropriately preserved tiffs also the attor- fact, Liability Defendants failed to ney product privilege work regarding their satisfy prong this two test. consultants in Liability their answers to the interrogatories. Defendants’ regard With initially Liability We note that the Liability allegations Defendants’ that the argument Defendants’ with the circuit court’s properly provide Plaintiffs failed to Benlate conclusion does not take issue with the cir samples Liability to the Defendants for test- supporting findings cuit court’s of fact. “If a ing, the circuit court found that the Plaintiffs’ attacked, finding properly binding; is not it is production samples of their Benlate conclusion which follows from it and Liability proper gave Defendants was is a correct statement of law is valid.” Wis Liability adequate oppor- Defendants an Pflueger, Haw.App. dom v. (1) tunity: samples to obtain Benlate (1983). Although P.2d Plaintiffs; perform appropriate designated the circuit court’s de samples tests on presentation at trial. point nial of their motion aas of error in the findings, Based on these the circuit court opening of their brief entitled “State section concluded that the Defendants’ alle- Appeal,” they ment of Points on neither gation part of fraud on the of the Plaintiffs quoted the supporting findings circuit court’s Thus, was without merit. the record shows of fact nor explaining included a statement satisfy Defendants failed to why findings allegedly of fact were erro requirement the first under the HRCP Rule 28(b)(4)(C), neous. Under HRAP Rule 60(b)(3) standard, i.e., that prove the movant point findings *36 “[w]hen involves ... of the by clear convincing evidence that the below, urged court those as error shall be fraud, verdict through misrep- was obtained quoted in entirety their and there shall be resentation, Jones, or other misconduct. 921 explaining why included a statement the find at F.2d 878-79. ings ... alleged of fact are to be erroneous.” presented “Points not accordance this Liability The Defendants also failed to sat- disregarded, except section will be that .the isfy requirement the second of the HRCP court, option, at may plain 60(b)(3) its notice a error standard, i.e., Rule that the movant 28(b)(4)(D). presented.” not HRAP Rule complained pre- establish that the conduct Liability Because the Defendants have failed losing party fully vented the fairly from 28(b)(4)(C), comply with HRAP they Rule presenting Jones, its case or defense. 921 any challenge have waived regarding the F.2d at 879. The specifically circuit court findings support that, of fact that if found even it had ordered the disclo- trial, court’s denial their motion for a Tayama’s new sure of Drs. Koranski and informa- and, thus, tion, unchallenged findings the testimony of fact their would not have been
253
may
fairly
must
drawn therefrom
probably would
be
controlling, and
material and
light
most favorable
changed
of the seven-
considered
the outcome
be
not
party
motion
light
nonmoving
numerous defense
and either
trial
month
testimony
In
granted only
on the same issues.
there can be
may
witnesses’
be
where
addition,
that
circuit court found
the
the
as
the
one reasonable conclusion
but
Tayama and Koranski about
opinions of Drs.
judgment.
proper
ap-
phototoxicity
plants
of Benlate
on
Hosp.,
Takayama v. Kaiser Foundation
favorable to the Plaintiffs’ case
peared
be
486,
903,
495, 923 P.2d
Hawai'i
Liability
Defendants’ case.
rather
than
marks,
(citation,
quotation
internal
some
Thus,
not
complained
pre-
of did
conduct
original brackets
fully
Liability
from
vent the
Defendants
case,
Liability Defen-
In the instant
fairly
or
presenting their case
defense.
judgment
a
for
post-trial
dants filed
motion
findings
unchallenged
fact
The
show
verdict,
that,
asserting
notwithstanding the
Liability
satisfy
Defendants failed
the Plain-
jury
concluded that
because
for a new trial under HRCP
the standard
injuries
a
of “economic
were
result
tiffs’
60(b)(3).
court’s
Rule
Because
loss,”
or farm
damage to
soil
rather than
findings
unchallenged
binding
of fact were
on structures,
pre-
the economic loss doctrine
Liability
appeal
Defendants
this
recovery in tort
cluded Plaintiffs
supported the circuit court’s conclusion
a
of law. The circuit court denied
matter
trial, the
deny the motion for a new
circuit motion,
things,
concluding, among other
clearly
did not
exceed the bounds
majority
compensatory
of Plaintiffs’
“[t]he
disregard
principles of law
or
rules or
reason
jury
plant
damages
were for
awarded
practice to the
detriment of
substantial
damages
for
to Plain-
replacement costs
Therefore,
Liability
the cir-
Defendants.
inventory
constitutes ‘other
plant
[that]
tiffs’
discretion, and,
not
its
cuit court did
abuse
brings
which therefore
case
property,’
denying
affirm its
accordingly, we
order
economic loss doc-
of the realm the
out
a new trial
Defendants’ motion for
trine.”
60(b)(3).
HRCP Rule
pursuant to
correctly
The
Defendants
applies to
that “the economic loss rule
state
the Lia-
E.
Circuit Court’s Denial of
recovery
pure
loss in actions
bar
economic
Post-Trial
bility
Motion
Defendants’
liability.”
products
United States
Notwithstanding
based on
Judgment
at
Corp., Hawaii
Steel
Regarding the
Tort
Verdict
Plaintiffs’
however,
damages
that,
(holding,
even where
Based on the Economic Loss
Claims
economic,
doc
purely
the economic loss
Doctrine
cause of action based
preclude
did not
trine
contend
misrepresentation,
such
negligent
on
because
by denying
erred
circuit court
liability).
products
did not sound in
claim
judgment
post-trial motion
notwithstand
Corp., we summarized
States Steel
United
regarding the Plaintiffs’ tort
ing the verdict
ease,
Corp. v.
leading
East River S.S.
loss doctrine. We
under the economic
claims
Inc.,
Delaval,
476 U.S.
Transamerica
disagree.
(1986),
255 Baron, Haw apply.” v. 80 Declaratory construction State and Defendants learned about (cita (1995) 613, 113, fraud and on 107, misconduct additional 619 ai'i and, result, they as a part omitted). of DuPont quotation internal marks tion and judgment and addition- moved for relief from statutory con- of for The standard review pursuant to against DuPont al sanctions is The inter- struction well-established. 60(b)(3). Rule Because the HRCP question is a of law pretation of a statute al- appeal before this court was Defendants’ novo. In addi- which this court reviews de for re- ready pending, the Plaintiffs moved tion, obligation is ascertain our foremost court to enter its mand to allow circuit fact, law, findings give of conclusions of and order effect the intention of the and Declaratory De- regarding the Plaintiffs’ and pri- legislature^] is to obtained be 60(b)(3) motion for HRCP Rule fendants’ language marily from the contained granted relief. We the Plaintiffs’ motion language And statute itself. where 19,1996 August on and informed the remand unambiguous, our plain is and statute they ten-page parties could submit only duty give plain its and is to effect to propriety limited to the relief briefs meaning. obvious 60(b)(3) pursuant to motion. the HRCP Rule 22, Wells, 376, 1996, 373, August entered P.2d On 78 Hawai'i State fact, law, an findings (citations and (1995) conclusions quotation internal regarding the Plaintiffs’ and Declarato- order omitted). marks Rule ry motions for HRCP Defendants’ authority dealing no Hawaii case There is 60(b)(3) sanctions Du- relief 60(b)(3) motion a HRCP Rule based appeal, Defendants Pont. On fraud, misrepresentation, or misconduct re contend, pre- because the Plaintiffs were however, discovery; HRCP Rule lated to they vailing parties, that were not entitled 60(b)(3) pursu- judgment essentially Rule affirmative relief from the is identical FRCP 60(b)(3) and, furthermore, Rule ant HRCP 60(b)(3), patterned rule and where we any newly misconduct on the discovered equivalent after an rule within the HRCP prevent Plaintiffs part of DuPont did FRCP, interpretations of the rule within fully Declaratory Defendants from “by are deemed to be the federal courts presenting defense. fairly their case and/or reasoning of this highly persuasive disagree. We Harada, P.2d at 50 Haw. court.” 60(b)(3) provides in relevant Rule HRCP (footnote (1968) part: judgment relief from In order to obtain RELIEF FROM JUDG- Rule 60. 60(b)(3), the movant Rule “[u]nder [FRCP] MENT OR ORDER. (1) convincing prove by clear and must[] was the verdict obtained evidence that (b) Inadvertence; Mistakes; Excusa- fraud, through misrepresentation, or other Evidence; Newly Neglect; Discovered ble (2) misconduct, the con establish that [and] Fraud, upon Etc. motion and such On prevented losing par complained duct just, may the court relieve are terms case or fully fairly presenting his representative ty from party legal or his from order, (citation proceeding Jones, judgment, or F.2d at 878-79 defense.” final following ... fraud reasons: omitted); La quotation marks and internal (whether denominated intrinsic heretofore Etudes, S.A., F.2d at farge et Conseils extrinsic), misrepresentation, or other Bunch, 1338; at 1283. Based on 680 F.2d party. of an adverse misconduct fact, findings Plain the circuit court’s added). (Emphasis failed to Declaratory tiffs satisfy two-prong test for relief the Jones interpreting pro rules “When court, judgment.7 statutory principles of mulgated by the privi- were these documents law ments and whether in conclusions of circuit court stated doctrine, representations attorney product specific leged work and 30 that under the court, regarding convincing Du- DuPont to evi- clear and fraudulent production the Alta Bush Ranch docu- Pont's *39 256 Additionally, according courts, Obayashi to federal Corp., 171, v. Hawaii 81 Hawai'i 60(b)(3), relief under Rule (internal FRCP the federal 177, 1364, 1370(1996) 914 P.2d quo equivalent 60(b)(3), of HRCP Rule “is avail omitted). original tation marks and brackets only prior able judg set aside a order or It is well settled that trial court has ment; may grant court not use Rule 60 to very large pass- measure of discretion in affirmative relief in addition to the relief ing upon motions under Hawai'i Rules of prior judgment.” contained order or (HRCP) 60(b) Civil Procedure Rule and its Moore, 12 J. Moore’s Federal Practice order will not be set aside unless we are (3d ed.1997) (footnote § omitted); 60.25 persuaded that under the circumstances United States One 1961 Red Chevrolet case, particular the court’s refusal to Sedan,
Impala
11837A177369,
Serial No.
457
set aside its order was an abuse of discre-
(5th
Cir.1972) (“[T]he
F.2d
1355
only
tion.
60(b)
granted
relief that
be
[can]
under Rule
setting
judgment.”);
[i]s aside of the
Ad
Uyehara,
Hawai’i Hous. Auth. v.
77 Hawai'i
Ass’n,
Hockey
duono v. World
824 F.2d
144, 147,
(1994) (citations,
(8th Cir.1987) (“Rule 60(b)
is available
quotations
internal
original
marks and
brack
only
...
prior
to set aside a
judg
order or
promulgator
ets
As the
.
ment.
It
impose
cannot be used to
additional
Hawai'i,
HRCP and the court of
last resort
relief.”);
affirmative
United States v. One we
interpreter
are the ultimate
of HRCP
Hundred Nineteen Thousand Nine Hundred
60(b)(3)
long
Rule
interpretation
as
as our
($119,980.00),
Eighty
Dollars
680 F.2d
60(b)(3)
HRCP Rule
does not offend the
(11th Cir.1982) (“Rule 60(b)
is available United States Constitution.
only
...
prior
to set aside the
order or
The record shows that DuPont
judgment.
impose
It cannot be used to
addi
discovery
upon
committed
fraud
relief.”).
tional
interpretation
Under the
court
parties.
and the other
upon
Fraud
courts, pursuant
the federal
Rule
HRCP
60(b)(3),
wrong against
court “is a
grant
we could
institutions set
affirmative relief
up
protect
safeguard
public,
to the Plaintiffs in
and
the form of
additional
insti
attorneys’
costs,
fees
only
but
could
set
tutions
which fraud
complacently
cannot
60(b)(3)
aside the circuit court’s HRCP Rule
consistently
be tolerated
good
with the
order
order.
society.”
Hazel-Atlas Glass Co. v. Hart
Co.,
ford-Empire
238, 246,
322 U.S.
64 S.Ct.
However, notwithstanding
per
their
(1944).
nal marks With the costs, attorneys’ involving of fees and ment is the last word the law sanctions (citations omitted). judicial controversy.” Id. it is well-settled that courts have inherent Therefore, “[f]raud, misrepresentation, and supervisory, equity, and administrative judgment circumvention used to obtain a are powers power to as well as inherent con generally regarded as cause the sufficient litigation process them. In trol the before judgment.” opening vacating or of the powers the are herent of court derived Lum, Slopes, Southwest Inc. 81 Hawai'i are from the state Constitution and (ci (App.1996) 918 P.2d by dependent or on statute. The confined tation, marks, original quotation internal and power also have inherent curb courts omitted). brackets promote a process, and fair includ abuses power impose ing the sanctions in the case, considering egre the litiga attorneys’ abusive form of fees DuPont, gious nature the fraud we of practices. tion the so as not to disallow a construe HRCP attorneys’ ... in the form of Sanctions 60(b)(3) remedy under when HRCP Rule may imposed by the and be trial fees costs post-judgment discovery there is a of fraud court accordance with Hawai'i Revised convincing supported clear and evidence. 603-21.9(1) (6) (HRS) (1985), and Statutes 60(b)(3) interpretation Rule This of HRCP legislative which is a restatement of the departs from case and sets a new federal law Moreover, powers ... inherent doctrine. However, precedent. pres ease instant of a also power the inherent court can be unusual, unique example unprece ents an procedural even if rules exist invoked discovery perpetuated against fraud dented which sanction the same conduct. equity, As a matter of it would be the court. escape unfair to allow DuPont accountabil fraud,
ity misrepresentation, mis for its and Although appel- it that an is well-settled conduct, simply by virtue of the fact that the judgment may court affirm late good had fortune to somehow Plaintiffs any ground in the court on record lower discovery DuPont’s fraud and ob overcome that, affirmance, supports believe we jury verdict. tain a favorable meaningful and to facilitate order review, an appellate efficient order more interpretation HRCP Rule Applying our imposing should set sanctions 60(b)(3) case, must forth find- present to the we exam- describe, speci- with ings that reasonable 60(b)(3) Rule ine the court’s HRCP (such perceived as ficity, misconduct actions, As a of DuPont’s order. result conduct), as well or bad harassment 60(b)(3) (1) Rule order: faith circuit court’s HRCP sanctioning authority appropriate as the by awarding the Plaintiffs sanctioned 11 or court’s inher- (e.g., HRCP Rule Declaratory additional and appellate re- power). purposes of ent For throughout attorneys’ fees and costs incurred view, must made a distinction be between trial, post-trial proceedings pretrial, and advocacy plain pettifoggery. and zealous relating to the misconduct that had not been (2) pursuant sanctions; imposed are sanctions previously been awarded as Whether procedure, such specific as] rule of prior punitive [a its sanctions order reaffirmed 11[,] pursuant to the sanction; Rule court’s amend- HRCP million $1.5 importance specific powers, inherent findings of fact and conclusions ed its earlier (a) findings perceived mis- accurately newly describe reflect law sanctioning authority is conduct examples of DuPont’s discovered noted, (b) First, previously it al- as circuit court two-fold. to state how the fraud meaningful appellate review if the had lows for more have ruled circuit court would its the trial court exercised time as to whether of DuPont’s misconduct known (for principled example, the discretion a reasoned issued the orders were Second, litigants, it assures en- fashion. circuit court stated it would have well, judge incidentally judgment against DuPont but tered a default not). thoughtful product was de- decision did liberation, publication and ... attorneys’ en- and costs fees to Plaintiffs and the ruling. hances the Declaratory deterrent effect of Defendants. Warehouse, Inc.,
Enos v. & With to the Pacific Transfer circuit court’s reaffir- 457-59, 79 Hawai'i 1278- fine, mance of the million the circuit $1.5 (1995) (citations, marks, quotation internal fine, rather, court did not increase this but brackets, original and footnote Therefore, merely it. reaffirmed re- fine, spect findings The circuit million $1.5 court’s fact and *41 provide conclusions of law did not pursu- described with reasonable affirmative relief 60(b)(3). misconduct, specificity perceived the ant to Rule as well HRCP appropriate sanctioning authority. as the respect With to the circuit court’s Among misconduct, many examples of 60(b)(3) relief affirmative under HRCP Rule represented DuPont to court that in the of findings form amended of re fact previously product it had asserted the work flecting discovery extent of DuPont’s privilege Alta to the Bush misconduct, fraud and we have held “a Ranch documents in other Benlate-related judgment, correction of record of a and However, cases. the circuit court subse- thereof, pro entry may nunc tunc not be quently discovered that not true. In this was enlarge judgment made to originally as 17, 22, 27, conclusions of law and rendered, ... or to show what court court specific representa- circuit stated that decided, might or should have intended by regard- tions DuPont to the circuit court decide, distinguished actually as from what it ing production DuPont’s Alta of the Bush DuPonte, did decide.” DuPonte v. Haw. documents, Ranch as well as these whether 123, 127, (1971). However, P.2d privileged were documents the work under distinguishable the instant case is from Du- doctrine, product by “were clear fraudulent it Ponte because involves a circuit court’s convincing (Emphasis and evidence.” add- finding supported by convincing clear and ed). In conclusions of and law 39 party repre evidence that made fraudulent specifically also that Du- noted opposing parties sentations to and to Pont’s misconduct was in bad faith and that light In strong public circuit court. of the authority the circuit court had inherent policy litigants against committing fraud by imposing attorneys’ sanction DuPont fees courts, hold, within the we based on and costs: egregious nature of the fraud This Du Court finds that Pout’s case, this that the circuit court did not abuse conduct set forth herein constitutes granted its when it discretion the Plaintiffs litigation practices specifically abusive and Declaratory and the affirmative Defendants practices finds that such done in bad 60(b)(3) relief under HRCP Rule in the form may This properly Court assess faith. findings of amended of fact and conclusions attorneys’ authority fees under its inherent of law. 603-21.9(1) (6) (1985). § under HRS Furthermore, Liability 40. This Court that Du Defendants concludes Findings particular they Pout’s conduct set forth in waived this issue when of failed argue Fact herein in them Supplemental demonstrates that Du Pont it Joint Brief. engaged in and intentional miscon- fraud Liability The Defendants it asserted that judicial process. duct which abused the “beyond scope was 10-page of t[heir] faith, wantonly Du Pont acted in bad supplemental (expressly brief limited to oppressive and, therefore, reasons this ...) propriety granted of relief below authority levy Court has inherent sanc- underlying address the trial merits of the tions, costs, award attorneys fees 60-page Liability court’s sanctions order.” judgments correct and orders. Supplemental Defendants’ Joint Brief at 10 added.) (Emphases However, n. 10. this statement the Liabili- ty interpreted Because we is not Defendants correct. we HRCP When 60(b)(3) to granted allow for affirmative relief the Plaintiffs’ motion for remand case, 19, 1996, attorneys’ August because specifically fees and costs we informed by statute, were allowed parties we affirm the circuit Defendants and the court’s sanctions DuPont its award each ten-page Plaintiffs could submit a brief Furthermore, grant and the deni- granted “[b]oth the propriety
“limited to the of the relief 60(b) within the trial Or- al of a motion new trial is pursuant to HRCP Rule motion.” discretion, and we will reverse August No. filed court’s der Case absent clear abuse discre- “60-page order” that decision at 3. The so-called sanctions Corp., 82 Hawai'i part the relief tion.” United States Steel by the circuit court was (citations 60(b), and, at and internal granted pursuant HRCP Rule thus, according meaning quotation of our marks plain order, gave we Defen- remand Declaratory Defendants do underly- opportunity dants an to address the court’s issue with the circuit find not take findings ing merits circuit court’s conclusion, reaching its ings of fact. fact, law, regarding conclusions of and order specifically that the De circuit court found 60(b) Rule sanctions HRCP relief and claratory due dili Defendants did not show DuPont. they gence discovery at issue because argue underlying merits of the failed to position usually regarding no took fact, findings circuit court’s conclusions *42 Thus, the court denied the motions. 60(b) law, Rule regarding and order HRCP for a Declaratory Defendants’ motion new and, against there- sanctions relief Orso, holding on our in 56 Haw. trial based fore, any Defendants waived 250, 494, at we at 534 P.2d stated possible respect to the and all errors with following: underlying merits.8 agreement a The authorities are case, of this Under circumstances newly evi- new trial based on discovered DuPont’s egregious on the nature of granted based provided can be evi- dence fraud, to as not requirements: we construe the HRCP so following dence meet 60(b)(3) remedy Rule (1) a under HRCP disallow previously it must be undiscovered discovery exercised; post-judgment a when there is though diligence due was even (3) convincing credible; evi- supported (2) and fraud clear must be and it admissible Accordingly, we affirm the circuit dence. and control- it must be of such a material law, fact, findings change conclusions probably court’s as will ling nature order, 1996, August 22, regarding filed merely and cumulative or and not outcome Declaratory Defendants only the Plaintiffs’ contradict a tending impeach or 60(b)(3) relief and for HRCP Rule motions witness. against DuPont. sanctions omitted). added) (citations (Emphasis applies regard The Orso standard De- Denial The Circuit Court’s G. newly based on of “whether the motion less claratory Motion Defendants’ pursuant evidence is made discovered New Trial 60(b)(2).” Rule Rule 59 or [HRCP] [HRCP] Declaratory cross-appeal, De- their Asamura, 628, Haw.App. 5 Matsumoto contend that the circuit court fendants (1985). 1311, 631, Because a P.2d 1313 706 by denying their motion its discretion abused requirements satisfy three must all movant 59(a) Rule pursuant trial to HRCP for a new “[assuming, standard, even ar- of the Orso Du- newly evidence of light discovered [newly evidence is guendo, discovered] discovery fraud and misconduct. We Pont’s question,” a circuit to the issue in material disagree. tidal deny a a new when will motion for court 59(a) provides that Rule HRCP due has failed to demonstrate [movant] “the any discovery of the evidence.” may diligence granted trial be to all new [a] 495; Orso, 250, at at see 56 Haw. 534 P.2d part all or of the parties of the Ranch, Ltd., (1) Deponte v. 49 Ulupalakua there in an action in which has also issues (1967) 672-73, 94, 672, 95 427 P.2d by jury, any Haw. trial of the reasons been a of a motion (affirming a trial denial been court’s new trials have heretofore for which 59(a) Rule new trial under HRCP in actions in the courts of for a granted at law plain that the trial found “[t]he where State[.] supplemental more than ten Additionally, brief to it that the Liabili- limit of should be noted page pages. ty did not to increase the Defendants move 260 Hotels, Inc., 192,
tiff-appellant could have
the evi Mist
69 Haw.
obtained
v. Westin
(1987) (citation
diligent
prior
the conclu
dence
search
738 P.2d
92
trial”);
Cartwright,
sion
Clement v.
quotation
internal
marks
See also
(1889) (confirming
Haw.
the denial
Co.,
Bjornen v.
Farm Fire and
State
Cas.
motion
“[t]he
of a
for a new trial
where
(App.
Hawai'i
plaintiffs showing
diligence
procuring
1996).
[in
Matsumoto,
satisfactory”);
wa]s
evidence
prevailed in
The Tomono Plaintiffs
their
(affirm
Haw.App.
at
at 1313
P.2d
declaratory
Declaratory
action
ing
trial court’s denial
for a
of motion
Defendants,
both the
Tomono Plaintiffs
60(b)(2)
pursuant
trial
new
Rule
HRCP
prevailed
and the
with
agreed
apparently
the trial court
with
where
respect
Declaratory
Defendants’ coun-
plain
defendants’
[the
assertion “that if
Thus,
terclaim
cross-claims.
had
she
diligence
tiff]
exercised due
would
costs in favor
court awarded
of the Tomono
have been able to
new evidence
discover the
Plaintiffs
Defendants and
trial”).
prior to
Declaratory Defendants,
against the
as fol-
In addition to the fact
Declarato-
lows:
ry
error in
Defendants have waived
(1)
Plaintiffs,
respect
with
to the Tomono
finding
Declaratory
circuit court’s
$7,654.16;
diligence
Defendants did not show
due
(2)
DuPont, $11,072.59;
respect
with
issue,
sup-
the record also
Platte,
Agri
United
ports
finding.
although
example,
For
Products,
Hasegawa,
Loveland and
Declaratory
Defendants asserted
*43
$949.56; and
opening
they joined
brief that
six of
in
the
discovery requests,
Plaintiffs’
the Declarato-
(4)
International,
respect
to
with
Terra
ry
subsequently
Defendants
in
conceded
$1,182.06.
reply
they
partici-
their
brief that
not
did
54(d)
that,
provides
“[e]xcept
HRCP Rule
pate
discovery
in at least three of the six
provision
express
when
therefor is
ei-
made
requests.
rules,
or in
ther in a statute
these
costs shall
are
There
but few cases tried in
new
prevailing
of course to the
be allowed as
trial,
cannot'be
and
evidence
hunted after
party
court
unless the
otherwise directs[.]”
parties
in order to secure to
the termi-
(1993)
Furthermore,
§
provides
HRS
607-9
legal
óf
nation
their
controversies the
following:
the
wary
granting
Court must be
about
new
charges exclusive;
§ 607-9 Cost
dis-
upon
pro-
trials
insufficient
for not
excuses
bursements. No other costs of court shall
curing
parties
the evidence
had
when the
any
in
charged
be
court in
to
addition
day in
their
Court.
any
prescribed
chapter
in
those
in
Deponte,
“The trial with Defendants the court is vested dis allowing disallowing in costs[.]” cretion circuit court’s award of costs on three (1) clearly the of reason or Liability exceeded bounds grounds: the Defendants practice disregarded principles of law or (2) parties”; if the “prevailing were even not Declaratory the substantial detriment “prevailing par- Liability Defendants were thus, Defendants, and, court did ties,” circuit court abused its discretion the doing abuse so. not its discretion Liability deny refusing to costs the Declaratory final Defendants’ conten- dis- as a sanction for DuPont’s Defendants tion, that Tomono Plaintiffs should not misconduct; Du- covery light of light have been awarded taxable costs misconduct, discovery court Pont’s circuit abuse, lacks DuPont’s also merit. by assessing Plaintiffs’ erred the Tomono clearly prevailed The Tomono Plaintiffs Declaratory against the Defen- taxable costs Declaratory against the Defendants both dants, all because such costs should declaratory Plaintiffs action the Tomono against Liability Defen- been assessed Declaratory and in against Defendants dants. Declaratory Defendants’ counterclaim The circuit against the Tomono Plaintiffs. respect Declaratory De With days hearings in held order to court three Liability against fendants’ cross-claim determine the taxable costs to be awarded Defendants, Lia jury concluded that parties an prevailing parties. All had bility the De Defendants were liable to arguments ample opportunity to assert damage. claratory soil Defendants respect for taxable costs. with awards Therefore, Declaratory that the circuit The record does not indicate court, awarding costs to the Tomo- taxable cross-claims Defendants’ Defendants, no Plaintiffs and Defendants, Defendants clearly of reason or exceeded bounds clearly “prevailing parties.” The Declar practice to disregarded principles of law or contrary atory Defendants’ assertions Declaratory substantial detriment of the simply lack merit. Defendants. Therefore, did not abuse Declaratory cor As the discretion, we affirm the circuit its *44 assert, provides in rele rectly §HRS 607-9 to the Tomo- of taxable costs court’s awards that, part determining and “[i]n vant whether Liability and the Defendants. no Plaintiffs taxed, may should be the court what costs Thus, equities of the situation.” consider the III. CONCLUSION prevailed although the Defendants reasons, affirm the we For aforementioned Declaratory cross-claim in Defendants’ the circuit court’s judgment and all of the the them, Declaratory the Defendants against orders. that, pattern considering DuPont’s contend litigation, discovery throughout abuse this Justice, RAMIL, concurring and theoretically could have de the circuit court dissenting. Liabil costs the nied award taxable except opinion re- I concur the with
ity Defendants. II.F, majority in spect part 60(b)(3) to affir- Rule allow construes HRCP stated, However, already the record as recovery by the Plaintiffs mative relief and Declaratory did Defendants shows that Declaratory additional Defendants pursuing in discov- diligence due not exercise agree I attorneys’ fees and costs. While thus, DuPont, and, dis- ery DuPont’s power to curb have the “inherent courts covery impact in this matter did not abuse including process, promote fair abuses Declaratory de- the same Defendants impose form power sanctions impacted Plaintiffs. Consid- gree that it 1098, fees,” op. at I do attorneys’ Majority, clearly ering Defendants 60(b)(3) HRCP Rule is not believe that Declaratory Defendants prevailed against the do so. More- appropriate which to vehicle cross-claims, not does over, in record in despite Dupont’s egregious conduct court, awarding case, Declaratory in Plaintiffs and the indicate that Defendants, relief simply were not entitled to taxable costs 262 60(b)(3) purposes, they prevail-
under Rule in the form of intents and HRCP were the findings amended of fact. ing” parties. again, majority Once as the notes, opinion federal courts have held that a “[Wjhere language of the statute is seeking movant relief under FRCP Rule plain unambiguous, only duty our is to 60(b) (1) by must establish clear and convinc- give plain meaning.” effect to its and obvious ing evidence that the verdict was obtained Wells, 373, 376, State v. 78 Hawai'i 894 P.2d misconduct, through (1995). some form of Here, plain language 73 “ 60(b)(3) prevented losing that such ‘conduct ... provides may Rule it HRCP only party fully presenting prior be used to set aside a order or his ease or de- (citation omitted, judgment: may party Majority “the court relieve a or fense.’” at 1096 added). legal representative judg case, his from a emphasis In this the Plaintiffs final ment, order, proceeding.” claim, HRCP Rule prevailed Dupont’s in their misbe- 60(b)(3) added). (emphasis may A court not adversely havior did affect the Declarato- 60(b)(3) grant avail itself of HRCP Rule ry against Dupont, Defendants’ cross-claim affirmative relief. finding stated the circuit court’s of fact Therefore, view, my the circuit court Additionally, always this court has deemed granted abused its discretion when it Plain- interpretation the federal courts’ Declaratory highly persuasive tiffs’ and Defendants’ motion for FRCP as because our own 60(b)(3). patterned HRCP were after the federal relief under HRCP Rule rules, Co., see v. North American Title Shaw n While Dupont’s abuses were in- 323, 326, 76 Hawai'i 876 P.2d deplorable deed such actions should be (1994); Crockett, 45, 60-61, Ellis v. 51 Haw. dissuaded, I do not believe that HRCP Rule Burns, (1969); P.2d Harada v. 60(b)(3) provides legal the sound foundation (1968). 50 Haw. upon According- which to do so this case. interpreting Federal case law Rule FRCP ly, respectfully majority I dissent with the 60(b)(3) 60(b), counterpart, Rule HRCP opinion part II.F. consistently only has held that the Rule “is prior judg available to set aside a order or
ment; may grant a court not use Rule 60 to
affirmative relief in
addition to
relief
prior
judgment.”
contained
order or
judgment newly-discovered ellants, evidence, fraud, voidness, satisfaction, or 60(b) other reasons. Rule is avail- [FRCP] 1-10; 1-10; John Does Jane Does Doe Cor able, however, only prior to set aside a porations 1-10; Partnerships 1-10; Doe judgment. order or It cannot be used to Corporations 1-10; Roe “Non-Profit” impose additional affirmative relief. Agencies 1-10, Roe Governmental Defen (citation omitted). Adduono, 824 F.2d dants. view, Similarly, my the Plaintiffs and the No. 19403. Declaratory Defendants were not entitled to attorneys’ an award of fees and costs under Supreme Court of Hawai'i. 60(b)(3). Rule HRCP Dec. Finally, highly questionable it is Declaratory and the Plaintiffs position in a to obtain relief under 60(b)(3), because, simply
HRCP Rule for all