*1 884 P.2d 345 MONTALVO, T. Plaintiff-

Obidio

Appellee/Cross-Appellant, Honolulu, LAPEZ, City County

John fendants-Appellants/Cross-Appel

De lees, 1-25, Doe Defendants Defen

dants. MONTALVO, Plaintiff, T.

Obidio MAKEKAU, Hauling

Daniel Doi I.

Contractors, Inc., and Doe De 1-25,

fendants Defendants.

No. 16913.

Supreme Court of Hawai'i.

Oct. 1994. Nov.

Reconsideration Denied *2 (Milton Tani, by Lapez Hazel Beh with her on refuse G. S. truck driven [herein- Counsels, briefs), Deputy after, Corp. Honolu- the 1988 accident lu, defendants-appellants/cross-appellees. accident, As a accident]. result of Mon- allegedly talvo hit his head and lost con- (Mitchell Wong, David C. Schutter S. *3 X-rays sciousness. Hospi- taken Straub briefs), Honolulu, plaintiff- him on the emergency instability tal’s room revealed in appellee/cross-appellant. spine congenital Montalvo’s lower and a con- spondylolisthesis—a dition known as condi- MOON, C.J., LEVINSON, Before susceptible inju- tion that makes one to back NAKAYAMA, RAMIL, JJ., WEIL, and and ries. KLEIN, J., Judge, place in Circuit recused. Montalvo’s History B. Prior Accident MOON, Chief Justice. that, prior The record indicates to the 1988 - - appellants appellees Defendants cross / accident, City had been Montalvo involved in Lapez City County

John and the and dating several other back accidents (collectively, appeal City) Honolulu from mid-1960s. His first automobile accident oc- a in verdict the First Circuit Court injured back, in curred wherein he his $770,000.00 awarding damages against in arm, burns, broke an sustained and was hos- City plaintiff-appellee/cross-appel- in favor pitalized for a month. lant resulting Obidio Montalvo from a multi- In Montalvo was involved in another by negli- accident vehicle rearend caused automobile accident when vehicle struck gent operation City of a truck.1- refuse high speed. Among him at injuries, other appeal, City On asserts trial reinjured Montalvo his back and fractured by: improperly instructing court erred pelvis. his surgery Montalvo underwent and respects; restricting several hospital remained for four months. form; scope special verdict denying trial; its motion for remittitur or new 27, 1987, On June again Montalvo was (4) admitting irrelevant documents into injured truck, twenty-five dump when a ton cross-appeal, evidence. hisOn Montalvo as- by Makekau, him, driven Daniel rearended by serts that trial court excluding erred throwing body his into the [here- windshield expert testimony damages,2 inafter, hedonic “the 1987 Makekau accident”]. therefore, if the case is remanded further Shortly accident, after the 1987 Makekau proceedings, present he should be allowed began experiencing ringing Montalvo in his expert testimony. ears, vision, head, pain blurred his neck, and Subsequently, back. he underwent judgment We the trial vacate court’s surgery March 1988 to remove a disc in respect remand for new trial. With neck. his cross-appeal, Montalvo’s we affirm the trial expert testimony court’s decision to exclude Montalvo was also victim of two as- damages. on hedonic prior saults to the 1988 accident. On 24, 1987,

December culprit an unknown as- behind, I. FACTUAL apparently BACKGROUND saulted Montalvo from hitting and kicking him several times A. The Accident At Issue This Case spine hip. records, According hospital 29, 1988, On November in- hip pain. Montalvo was he was treated for back and On rearend, jured 15, 1988, chain April reaction automobile was struck in Montalvo operation accident negligent girlfriend during caused face his a domestic dis- (Civ. 89-2846), Montalvo v. Makekau No. which 2. Hedonic "for the loss of life, itself, enjoyment of or for the value of life was consolidated at the trial level Montal- separately produc- measured (Civ. economic 89-2723-09), against vo's case No. injured person tive value that an or deceased settled eve of trial in November 1993. Dictionary would have had.” Law Black’s (6th ed.1990). pain pute, aggravating the from his recent accident but contested the amount of dam- surgery. ages legally negligence. neck its Earlier, on June Montalvo had C. Montalvo’s Post-1988 against filed suit Makekau and Makekau’s City Accident Events employer, seeking damages arising from the accident, After the 1988 Montalvo al- 1987 Makekau accident. On a motion for legedly aggravated his condition on summary judgment, several the trial court ruled that negligent, leaving different occasions. His medical records in- Makekau was for trial the feeling pretty good dicate that he “was until issue The circuit court consoli- yesterday [June 1989] when he went to dated the and the Makekau suits for *4 boogey the beach and tried a little apportion damages. board. trial Trial was really Neck and back sore.” commence on November 1993. trial, on the eve of the Makekau suit was July On Montalvo’s doctor noted settled; thus, proceeded against trial push

that Montalvo told him he “had to [his] City. jury The trial court instructed the flat,” change complain- car off the road and follows: “my ing killing back and neck are me.” In this the defendants have admitted 27,1990, Again, on March the medical record they were at fault for the November reads, “[p]atient changing states he was Therefore, only 1988 accident. tire on the Pali on and has had a marked 3/27 you for is what are decide pain involving in increase his neck since that damages legally and [range time. motion] ROM the cervical accident, and, City [1988 truck] refuse in spine markedly is restricted.” thereto, addition the nature and extent of entry May A medical record and indicates that Instruction No. 10. recently attempt go [Montalvo] did fish- trial, granted City’s Prior to the court friends; however, ing with one his once motion in limine to exclude Montalvo’s ex- rough up the surf became he ended down pert’s testimony regarding damages, hedonic in the hatch of the boat as his back and which denial forms the basis of Montalvo’s quite painful. neck became He also has cross-appeal. pain attempting in increased his neck when to work on his automobile. 13, 1993, jury On November awarded $170,000.00 special Montalvo in 6, 1991, July On a CAT scan revealed a $600,000.00 general damages. in After the bulging lower back. disc Montalvo’s trial, motion for or trial court denied its new recommendation, Based on his doctor’s Mon- alternative, remittitur, in the for surgery talvo underwent on November appealed. 1991. experi- At Montalvo testified he III. DISCUSSION pain continuously. ences He also testified work, longer can no he is unable to City’s Appeal A. The sex, engage longer participate can no com- contends that the trial court activities, swimming recreational such as (1) eight failing mitted errors:3 to instruct twenty riding, horseback can sit for (2) contributory negligence; on fail- minutes, only thirty and can stand for min- causation; ing legal to instruct utes at a time without discomfort. (3) restricting scope special verdict turn, form, jury’s restricting con- II. PROCEDURAL BACKGROUND (4) apportionment; sideration of the issue of 5, 1989, rejecting City’s request special inter- September Montalvo filed a for On form, regarding ap- negligence against Lapez. rogatories on the verdict action (5) past injuries; City eventually liability portionment for the for admitted City's City’spoints of error in a different order than raised in the brief. 3. We list and discuss the failing neghgent, to instruct the that “the were and that the [November 1991] not hable for the back neghgence of each was a cause of the surgery if it later found was caused injuries, you degree must determine the neghgence, only partially Montalvo’s neghgence party which the of each contrib- only partially if hable found at fault for the injuries, percent- uted to the in terms of so, injury.... By doing did ages. permit apportionment subsequent inci- Instruction No. 27. injuries”; instructing dents and regarding City’s liability alleged “Jury instructions ... must be considered “neghgent hospital medical or treatment or Moreover, give as a whole. a refusal to care”; admitting into evidence extensive correctly instruction that states the law is not concerning documentation Montalvo’s failed if expressing substantially error another venture; denying City’s business principle given.” similar State v. Pioneer request for remittitur or new trial. We ad- Co., Ltd., Mill dress each contention turn.4 (1981) (citations omitted) (internal 1131, 1140 omitted). quotation marks Contributory Negligence Instructions *5 City argues The failing to instruct City The asserts that the trial court jury contributory neghgence, the on the refused, objection, erred when over its precluded jury properly court the con- give following pattern the instruc sidering occurring incidents after the 1988 contributory neghgence: tions on accident, City allegedly which aggravated case, In denying this addition to City Montalvo’s condition. The reasons that any neghgence part legally on its caused injuries Montalvo caused some of his own plaintiff, to the the claim defendants participating, against the 'of advice his doc- plaintiff neghgent that the himself was and tors, in activities such boogie-boarding, as plaintiffs neghgence legal own awas car, pushing riding deep his in a sea plaintiffs’ injuries. cause of the Where a fishing support, City vessel. In the cites plaintiffs neghgence legal own is a cause Honolulu, City County Gibo & of injury, “contributory of his this is called Gibo, plain- P.2d 198 In the neghgence.” shpped City-maintained tiff and fell at a hos- The burden is on the defendants to pital, breaking kneecap. Plaintiff under- prove by preponderance of the evidence and, home, surgery recovering went while at any contributory neghgence part on the reinjured tripped his knee when he while on plaintiff. crutches. This court addressed the issue Instruction No. 26. judge adequately “whether the trial instruct- case, plaintiff In this suing is question ed liability as to injuries defendant resulting from the injuries that resulted from accident of November 1988. the second fall.” Id. at 459 P.2d at 200. any The must determine whether parties neghgent this case were and We noted in Gibo that “where a defen- neghgence part whether such on negligence injuries of a dant’s plaintiff causes to a party and[,] legal was a plaintiffs cause of the impaired because of the weakened or injuries. you condition!,] If find physical that the defendant’s plaintiff suffers subse- neghgence legal injuries, was a plain- quent cause of the brought which are not about injuries, you tiffs negligence plaintiff, must determine the total any efficient compensation plaintiff cause, amount of intervening to said negligence defendant’s is injuries suffered, due to the proximate whether or not deemed to be the cause both you plaintiffs neghgence find that the original subsequent injuries.” own Id. (citations omitted). injuries. was also a stressed, however, cause of his In We you the event find that both defendants that: remanding

4. denying City’s Because we are case for new abused its discretion in motion trial, trial, alternative, we need not address whether the trial court for new or in the for remittitur. plaintiffs subsequent injuries proof [w]here burden of on this issue is Defen- brought by plaintiffs negligence, about de- dants. original inju- is

fendant liable for the Gibo, This instruction is consistent cor- ries, proximate cause of defendant’s law, rectly properly presents states the negligence. This result be reached to the whether Montalvo theory under of avoidable conse- legally injuries of his own after is, quences, plaintiff by the use of part accident. The first reasonable care could have avoided the City’s plain- instruction No. 6 describes the subsequent fall and the and dam- duty mitigate tiffs damages, described in ages that resulted. Or under the doctrine Gibo as the doctrine of “avoidable conse- negligence of defendant was not quences.” part The second describes the proximate cause of the second fall and consequences plaintiff and allows for consequent be- Thus, apportionment. we conclude that the negligence cause the was an refusing trial court did not prof- err intervening efficient cause. pattern fered contributory instructions on 302-03, (citations negligence. P.2d omit- ted). Relating Instructions Although applicable Gibo is to the instant Legal Causation City’s argument misplaced. is case, contributory negli-

the context of this contends that the trial court gence, pattern as defined in the instructions failing “legal erred to define the term earlier, quoted inapplicable. ad- causation” for the At *6 negligent causing mitted that it was in requested pattern had a standard instruction accident; party no contended at trial it,6 defining legal causation but withdrew any way that Montalvo in contributorily was submitting proposed instead instruction negligent causing in accident. Nei- Hardy, taken from Mitchell v. Branch and anyone argue ther did (1961). the 1988 128, 131, 45 Haw. 363 P.2d proximately legally accident caused5 Mon- proposed part: The instruction stated subsequent (e.g., having talvo’s incidents to impose liability negligent party To on a for road). push his vehicle off the another, injury an to there must be a negligent causal connection between the importantly, although More the trial court injury.... act and the The must pattern contributory negligence refused of, from, negligent be the result or flow instructions, gave City’s it instruction No. negligent party act before the is held lia- 6, which reads as follows: ble. duty Plaintiff has the to use reasonable [City’s] [here- Defendants’ Instruction No. 3 loss, diligence care and to avoid and to inafter, the instruction]. Mitchell damages,

minimize the and to use reason- prevent aggravation able means to The court refused the Mitchell instruction. However, gave no instruction defin- ing “legal If Plaintiff though does not use reasonable care cause” even it had instruct- diligence you to avoid loss and to minimize ed the that “the damages, may por- he not recover for that decide is what are the legally tion of the which could have been the accident and the prevented had dam- he used reasonable efforts amount to award for such added.) expenditures. ages.” (Emphasis or made reasonable purposes, “legal pertinent pattern part: 5. For our the terms cause” and 6. The instruction stated in "proximate synonymous, although cause” are legal inju- "An act or omission is a cause of an "legal "prox courts should use cause” instead of ry/damage bring- if it was a substantial factor in instructing juries. imate cause” when See Kno ing injury/damage.” about the Hotel, Gateway dle v. Waikiki brief, subsequent City argues there were incidents.... which In its that “the give may aggravated when it refused to have or caused his condi- committed error proximate possibly cause instruction based even become worse City also noted in its surgery. ].” The caused his need for the back [.Mitchell argument that “under the brief and at oral added.) argument (Emphasis The “same doctrine, plain error it was fatal for the regard- made earlier” refers a discussion any legal fail to cause instruc- [c]ourt to offer contributory ing proffered negligence in- (Emphasis original.) There- tion at all.” structions; thus, appears that the was fore, two issues: whether the we address concerned about the lack of an instruction on refusing court committed reversible error contributory negligence—not about an inade- instruction, and, not, if the Mitchell quate explanation “legal causation.” court nevertheless committed whether little, proposed if Mitchell instruction had defining “legal plain error not cause” anything, contributory negligence. to do with Nothing in the record indicates that the issues, analyzing these two we note that objected give to the refusal to the Mitchell (HRCP) Hawaii Rules of Civil Procedure ground instruction on the that the court was 51(e) (1991) provides part: objec- Rule explaining “legal not causation.” The was, best, oblique tion cited above an party may assign giving no as error the explanation of, reference to a lack of of causa- give, refusal to or the modification an precise. Cf, tion and should have been more objects ... instruction unless he thereto Miller, Wright 9 C. & A. Federal Practice before the retires to consider its ver- (1971) (“[t]he § dict, grounds and Procedure stating distinctly the matter to which clarity must be stated with sufficient objects objec- grounds he and the of his judge may they trial see what are and follow tion. [Objections if them well taken.... to a complete failure to ob “even sufficiently charge specific bring must be ject prevent instruction does precise alleged into focus the nature of the appellate taking cognizance court from error.”). plain error if error is trial court’s miscarriage justice.” in a Tur Furthermore, result objection if even *7 Willis, 319, 324, 710, ner v. 59 Haw. sufficient, proposed the Mitchell instruction (1978) (citations omitted); Chung incorrectly proximate legal defines or cause. Co., (and Kaonohi Center 62 Haw. proposed In the instruction in its brief 283, P.2d argument), City quoted and at oral the language stressed the from Mitchell a. The Mitchell Instruction injury of, must be the result or “[t]he flow standards, preceding the if Given Mitchell, from, negligent act[.]” 45 Haw. proposed incorrectly Mitchell instruction added). 131, (emphasis at 363 P.2d at 973 law, properly stated refused to language, City argues, This would have give Alternatively, if it. did not helped jury concept understand the of 51(e) properly object, under HRCP and ab “legal paragraphs cause.” three error, plain precluded sent following quoted portion, the Mitchell assigning error. court stated: objected reflects that the record The best definition and the most workable give to the court’s refusal to the Mitchell proximate legal far test of or cause so instruction as follows: suggested this: “The actor’s seems be Honor, goes argu- negligent legal

Your conduct is a cause of harm the same (a) respect ment we made earlier with to another if his conduct is a substan- harm, negligence part bringing of Montalvo tial in about the Mr. factor (b) relieving subsequent to accident. And that on there is no rule of law ou[r] liability Lipp of Doctor and Doctor Naka- actor from because of the manner the basis no, they negligence in in surgery both said that was not which his has resulted required as late as October of 1991. And harm.” (citing Id. at though 363 P.2d at 973 Restate- ... requested Even matters not Torts, Torts, § ment 431 and charged special Prosser on be when verdicts are sub- 47) added); Knodle, § (emphasis waived, see mitted to the are this rule (reaffirming obviously 742 P.2d at 186 does not extend to an element so correctly adopted Mitchell proximate the “substantial in negligence essential as cause definition). factor” actions. It is basic in our law that no liability negligence attaches unless the al- Courts, long grappled have with the con- leged proximate is the cause of the cept proximate legal cause. “There is sustained.... it is essential that the trial perhaps nothing in the entire field of law judge instruct as to the disagreement, which has called forth more meaning proximate appli- cause and its opinions which in such a welter of cation to the facts. Knodle, confusion.” 69 Haw. at 389 n. (quoting P.2d at 385 n. 9 Prosser and Keeton (emphasis Id. at 246 S.E.2d at 331 Torts, (1984)). § on the Law 41 at 263 original). The “[substantial factor] formula is not with- Swartz, Enyeart 218 Neb. out critics ... [b]ut are convinced that II),7 (Enyeart N.W.2d 786 the Su phrase sufficiently ‘substantial factor’ is a preme plain Court of Nebraska also found intelligible adequate to furnish guide failing proxi error to instruct a jury, instructions to the and that it is neither mate cause. The court held that possible nor desirable to reduce it to lower terms.” Id. at 742 P.2d at 386 error, se, per it not [w]hile to fail (citation omitted) (internal quotation marks give proximate a definition of cause ... omitted) added). Thus, (emphasis although issue, if the matter is not an failure City correctly cited to Mitchell for the give an instruction on the definition of cause, “proximate” “legal” definition of where, proximate here, cause it is one Knodle, quoted wrong language. Under principal issues in the case must be language “flow from” would have insuffi- error, plain considered the court to be ciently explained legal Consequently, cause. requiring reversal. properly we conclude that the court refused (citations at 788 omit- N.W.2d proffered Mitchell instruction. ted) added). (emphasis b. Plain Error Getscher, Similarly, in Morris v. 708 F.2d (8th Cir.1983), law, applying Iowa We turn now to the whether Eighth Circuit reversed and remanded a le- plain the trial court committed error gal malpractice plain defining “legal case because error Although cause” for the instructions on and causation. appellate yet our courts have not addressed *8 issue, Although at specific jurisdictions Id. 1311. it is not clear what other have cause, given proximate instruction was on held that failure to instruct a cause, appellate court commented that meaning proximate legal or when dispute, plain requir such issue is in error centrality require- [b]ecause of the ing reversal. plaintiff prove proximate ment that a cause Kehs, Ga.App. In in malpractice Cline 246 case and the concommi- (1978), Georgia Ap- importance jury’s S.E.2d 329 Court of tant under- [sic] peals negligence standing requirement remanded an auto accident of this ... we con- inadequate submitting case because of instructions on clude that the case under these cause, proximate holding plain that: instructions constituted error seri- Swartz, court, In Enyeart v. duty requested 213 Neb. 331 N.W.2d of the trial whether to do (1983) I), (Enyeart Supreme not, the Nebraska properly to and so to submit instructed grant Court affirmed a of a new trial because of presented by on all material issues inadequate jury objec instructions. At no pleadings supported by the evidence.” tion was made to the instructions but the court 735, 331 N.W.2d at 515-16. long-standing relied on "the rule that it is the injury ously affecting malprac- proved causation of an must be the fairness of the mate (citations omitted)). presumed” and is never proceeding. tice that, here, omitted). recognize (citation We withdrew Id. at 1311 the correct instruction in favor of the incor- Bennett, (Del. In Culver v. 588 A.2d 1094 rect or insufficient Mitchell instruction for 1991), Supreme the Delaware Court also re purposes imparting legal the construct of negligence an auto accident case versed Further, City compounded cause. its plain based on error instructions by objecting improperly mistake to the trial proximate court commented cause.8 The explain legal court’s failure cause. Conse- proximate cause is because “the issue quently, essentially has waived the ordinarily of fact to be submitted and, error, appeal, plain error on but for jury, only appropriate is not but would be unable to obtain a reversal. See necessary judge properly for the trial Turner, 59 Haw. at 582 P.2d at 714. jury upon concept.” at instruct the Id. Fox, In State v. 70 Haw. 760 P.2d 670 giving improp 1098. The court held that (1988), this court summarized the criteria for proximate plain er definition of cause was recognizing plain error: at and reversible error. Id. 1099.9 cases, plain In civil rule is error Montalvo asserts defendant’s instruc “justice requires.” invoked when so We (dealing apportionment),10 tion No. 1 with have taken three factors into account plaintiffs (dealing agg instruction No. 3 deciding discretionary power whether our ravation),11 and defendant’s instruction No. plain ought to notice error to be exercised (dealing consequences),12 with unavoidable in civil cases: whether consideration of convey concept were sufficient to of cau requires the issue-not raised at trial addi- nothing sation to the facts; tional whether its resolution will “legal those instructions defined cause” in integrity affect the of the trial court’s find- factor,” terms of “substantial “natural and fact; ings of and whether the issue is of probable consequence,” anything similar. great public import. Here, easily wrongly could have (citing Id. at 56 n. 760 P.2d at 676 n. proximate omitted the element of Constr., Inc., Jorgensen v. Mark 56 Haw. deliberations, unjust causation from its thus (1975) (other 466, 476, ly finding liable for See omitted)). citations The error here meets Tamura, Dzurik v. each of the three Fox factors. (1960) (“the P.2d causal connection negligent injury between the act and the The first factor is based on the tenet complained appellate ... must be shown. Proxi court should not review an issue case, however, explaining legal para 8. This differs somewhat because instruction cause was of rejected importance. Delaware has the "substantial factor” mount proximate test of cause in favor of a "but for” Culver, test. Id. at 1097. the trial court’s 10. See section III.A.4. infra. proximate instruction defined cause as a “sub- despite stantial factor” Delaware's different defi- 3, modified, 11. Plaintiff’s instruction No. stat- nition. ed as follows: person disability A who has condition or Coy Simpson Safety Equip 9. But Marine cf. 787 F.2d 19 the time of an is not entitled to recover *9 ment, (1st Cir.1986) (failure to de However, damages plaintiff a is enti- therefor. "proximate" fine or instruct on or "causation” any aggravation tled to recover of error) “legal” plain (applying cause was not New pre-existing disability such or condition result- However, law). Hampshire Coy products was a ing injury. from the liability liability case where the theories of were disability This is true even if the condition or express implied warranty liability; and strict susceptible possibil- made more expound "the failure to on the definition of 'cau ity normally healthy person of ill effects than a speak 'proximate' sation' or to in terms of or been, normally would have and even if (cita legal' cause was not an error.” Id. at 26 healthy probably person would not have suf- omitted). Coy, the instruction would injury. fered substantial Here, contrast, confusing. proxi have been in legal directly supra. cause was at issue and an 12. See section III.A.l. mate or context, undeveloped ing,” implies based an factual record. in this a conscious ef- Taxes, Co., jury In re Hawaiian Land fort to deceive the court and the and to 53 Haw. 1070, 1076 Here, reap of the benefits such conduct. There is 487 P.2d the absolutely sup- no evidence in to clearly sufficiently the record record raises the is port minority’s the bold conclusion that the “legal sue whether the cause” of Montalvo’s City engaged “games-playing.” was in The injuries could have been attributed to events mere submission and withdrawal of a correct City other than the 1988 accident. characterized, instruction of law can integrity The error here also affects the best, knowledge at as evidence of the lack of jury’s findings. all Once the evidence experience attorneys of the involved. presented, has been it becomes the court’s “[tjhere minority The states that can be no duty properly fundamental to instruct doubt that [withdrew the correct jury precise on the law on the of fact it issues believed, correctly because it instruction] Here, is to decide.13 the court failed to incorrectly, [Mitchell instruction ] principle define one of the issues significantly was more to it.” The favorable cause,” case—“legal concept foreign point minority crucial misses is the non-lawyers. City argues most As the its (substantial fact that the correct instruction brief, City’s hinged “the entire case on what factor) obviously would have been more “fa- legally the accident.” vorable” to the than the incorrect test, As for third factor of the Fox (flowing from) Mitchell instruction because preserving integrity deem of our scope it would have made more narrow the system “great public import.” By to be of jury’s consideration of the amount of failing to instruct on the correct instruction, damages. Without the correct meaning “legal of an element so essential as only speculate could as to what cause,” the trial court allowed causation,” “legal leaving constituted specu- base its determination of on potentially vulnerable to unlimited and base- conjecture. lation and less Had the broader Mitchell given, instruction The fact that the withdrew the correct been the result would have instruction, City’s been the same. The withdrawal of the while unfortunate and misdirect- favorable, ed, sup- more instruction outcome-dispositive. is not restrictive As indicated above, ports knowledge our a lack judge’s duty it is the trial inference of ascertain experience, “games-playing,” rather than the correctness of the instructions to be sub- part City’s attorneys. jury. goal preserving mitted integrity jury system far out- agree minority that We with the weighs any argument party, that a who with- plain represents a “[t]he error doctrine de instruction, draws a crucial invited the error parture from the normal rules of waiver that that, thus, any against adverse verdict Minority govern appellate opinion review.” party appro- should such be affirmed as agree at 884 P.2d at 367. also We priate public’s sanction. The confidence in plain “the error doctrine is based on notions jury system obviously will not be en- justice.” equity P.2d at hanced result. concluding “justice 367. dissent, minority, disagrees requires recognize plain error [in its we not case],” analysis, concluding that id. at P.2d at the above because minority City’s “misguided games-playing simply point induced the entire misses place,” Minority opinion regarding court’s fail the error the first our discussion the trial legal 884 P.2d at we should not reward to define cause for the Be ure by recognizing plain “Game-play- error. cause cause is an element so essential State, 442, 472-73, Cf., understanding they Briones v. clear and correct of what it is (1993) (“[T]he decide, trial court is judge] [the shall state to [the *10 the sole of all definitions and statements source (Lev- facts.”) jury] fully applicable the law to the duty judge of law.... It is the the circuit inson, J., omitted) (internal (citations concurring) goes jury see to it that the case to the in a clear omitted) original). quotation (emphasis marks in manner, intelligent they may so that have a condition,” any negli- premised case on medical contends that and basic jury gence, properly question apportionment crucial that the allows for perform duty prior it to its to the instructed order for events 1988 accident. judges as of the fact. by arguing Montalvo counters agree authority that, apportionment

We with the substantial form allowed for where, here, jurisdictions considering interrogatory along from other with all issue, plain instructions, primary jury special causation is a it is of the verdict incorporated reversible error for a trial court not to ex- and addressed all is- relevant sues, plain meaning “legal including to a cause” consideration of Montalvo’s post-1988 incidents. Special 3. The Verdict Form A “complete trial court has discre The also contends that the trial special general tion” whether to utilize a unfairly scope restricted the verdict and to decide on the form of the jury’s by allowing deliberation the submis interrogatories verdict as well as the submit single question special sion of a on the ver jury “provided questions ted Quoted entirety, dict form. in its the form adequate jury asked are to obtain a determi jury directed the as follows: judg nation of all factual issues essential jury question The must answer the be- ment.” In re Hawaii Federal Asbestos requires agreement low. Each answer Cases, (9th Cir.1989); 871 F.2d ac (10) jurors; however, at least ten Miller, Wright cord 9 C. & A. Federal Prac (10) jurors agree same ten need not on § tice and Procedure [hereinaf you each answer. If do not understand 49(a). ter, Miller]; Wright & see also HRCP question you or if wish to communicate Although “complete there is discretion” over subject, you with the Court on must do any form, type questions of verdict them writing through so in the Bailiff. they selves be so defective that consti Miller, Wright tute reversible error. & su QUESTION § pra, apportionment, After reduction for if analyzing alleged special errors in preexisting condition, any, medical forms, verdict the instructions and the inter what are Plaintiff’s from the acci- rogatories on the verdict form are considered dent of November 1988? Knodle, 383-84, aas whole. See 69 Haw. at $_ Special Damages: (“[T]he judge 742 P.2d at 382-83 should ex $_ Damages: General plain point the law of the out the essen Sign Special and date this Verdict and other, proved tials to be on one side or the notify the Bailiff. bring partic into view the relation of the (Bold (Underscoring original.) emphasis particular ular evidence adduced to the is added.) sues All of involved. this must be done jury such a manner that requested special interroga- had will not be misled.”) (citations omitted) (internal quota asking apportion damages tories omitted). tions and brackets major attributable to each of Montalvo’s occurring prior accidents to the 1988 III.A.1., quoted supra, As section accident, and between the 1988 accident theory trial court instructed the post-accident boogie and the events such as consequences duty of avoidable and the boarding pushing a car. The trial court mitigate. The court also instructed the rejected interrogatories, asking only all that Montalvo could not recover for “that single question. portion which could have City argues single prevented that the form the been had he used reasonable ef- prevented considering expenditures.” forts made reasonable occurring incidents after the 1988 accident. the verdict form asked a narrow “[ajfter.reduction Focusing language, question, restricting apportionment preex- apportionment, any,/or any preexisting isting only. Although if conditions

293 jury regarding recovery damages equally instructed the pre-ex- between the injuries, post-accident isting the court’s verdict medical and the condition November 29, appears precluded jury form to have 1988 accident. apportioning damages post-acci- from for the objected Both the and Montalvo to minimum, events. At dent the form contra- Montalvo, objecting the instruction. to sub- and, accompanying dicted instructions (3), paragraph argued that: thus, calls into the award of dam- amended, even as instruction tells this ages. they if are not able to make Furthermore, explained in as section III. apportionment rough either an appor A.4., infra, regarding appor- the instruction tionment, they must divide the incorrectly tionment set forth the law in this [However,] equally.... [u]nder [Matsu

jurisdiction. interrogatory if Even in the Kaku, [629], moto v. 484 Haw. P.2d narrow, special verdict was not too (1971)], single the situation of a acci accompanying key court’s instruction on the going pre dent to trial there are where of the plaintiffs damages issue cause of existing resulting medical conditions either incorrect, rendering was thus the verdict otherwise, from a diseased condition or we form deficient. [s]upreme very then find that [c]ourt specifically they said that if are unable to emphasize deficiency We of the make apportionment rough either an necessarily verdict form is not attributable to apportionment, should then interrogatories specific the omission of give percent damages. one hundred incident in history. each Montalvo’s accident Rather, by specifically referring “preexist- hand, City objected the other On because conditions,” ing the form excluded consider- post-acci- redacted references post-1988 ation of other relevant accident dent incidents: events. Honor, respect Your City’s to the written, position, I think it’s a as correct Apportionment Damages of statement of the and that law should be able to make its own determina- pre- asserts that the also happened based what as considering cluded the from incidents 1988, 29, as well November as what occurring by after the 1988 accident happened prior November 1988. But redacting portions proposed all of its instruc- boogie boarding, the fact that he went tion No. referred incidents after pushed tire, fix his car off road to a flat 29, City’s 1988. The instruction November 1, deep fishing went sea after the November court, by as No. modified the trial stated: 29, accident, he had several incidents suffering Plaintiff was types activity where those of conduct or pre-existing medical conditions the time may aggravated have contracted his the November accident. You therefore, medical And condition. those apportion- instructed to determine the should [be] considered ment, any, damages, if as follows: Therefore, City’s instruction proportion You review must decide what revised, entirety No. its and examine such was caused November correctly appor- the law on accident, whether states proportion and what pre-exist- tionment ing medical condition. ago, twenty years Well over our court set you If are unable to determine how ju- apportionment-of-damages forth Hawaii’s appor- can much Plaintiffs risprudence opinions—Kawamoto four to the 1988 accident tioned November Yasutake, (1966), 49 Haw. 410 P.2d 976 condition, pre-existing medical Oakley, 438 P.2d 393 Loui Haw. apportionment. you rough make a (1968), Morishige, Bachran v. Kaku, (1970), you If P.2d 808 Matsumoto v. are unable make even a 469 opinions rough apportionment, you apportion supra. “Unfortunately, these have must *12 294 “predispo- Damages Actions Such present ]. in Tort the uncertainties

not resolved all of sensitivity is injury” special other sition to expert apportionment and of areas of [the so-called in the context of the often involved causation, apportionment, opinion on medical “eggshell plaintiff. skull” “thin skull” or Duffy, Appor- suffering].” pain and J. and Injury Damages and Personal tionment Vogel, Newbury of In 151 Colo. Hawaii, Opinion 8 Haw. Expert Medical (1963), Supreme the Colorado Court P.2d 811 (1971) [hereinafter, Duffy], “Rec- Bar J. 25 general apportioning for dam- stated the rule Loui, Bachran, Kawamoto, and of onciliation aggrava- ages pre-existing in a condition easily accomplished.” Id. Matsumoto is not situation: tion-of-condition at 30. ex- pre-existing diseased condition where a ists, where[,] aggravating and after trauma Today, analyzing the law we are faced with result, condition!,] disability pain damages in a situation apportionment disability apportionment and no be- pre-existing a condi- plaintiff where a has by pre-existing con- tween that caused tion, namely, spondylolisthesis, has been by the trauma can dition and that caused injured aggravated or his condition has been case, made, though por- in such even be tortfeasors, by independent acts of successive disability present and future is tion of his allegedly has caused some of own pre-existing directly attributable from which he has after the accident condition, defendant, neg- act of whose brought Because of this confluence suit. trauma, cause of the is ligence was the factors, presents oppor- this case an relevant responsible damage. the entire tunity comprehensively review for us omitted). (citations clarify important of Hawaii tort law. area 379 P.2d at 813 Newbury, suffering case law place plaintiff To our discussion of Hawaii context, condition, begin concepts injured fundamental pre-existing we arthritic was distinctions; then examine and com- by in a motor vehicle accident. the defendant accident, pare principles apportionment plaintiff perma- the law on was After the jurisdictions. nently spinal sprain from other manifest- disabled with a pain. At ed chronic neck and back Principles a. Fundamental im- experts testified that it was two medical possible apportion plaintiffs the cause of Generally, is liable in dam- “a defendant disability pre-existing arthritis between the injuries [legally] ages plaintiff to a for all Although and the accident. was negligence.” defendant’s] caused [the apportion- partially instructed on the issue Honolulu, City County Gibo v. & ment, instructed as to the law that it was hot 299, 302, 459 P.2d plain- apply apportion if it could not would it well settled that “a tortfeasor is liable is damages. appeal, the court held tiffs On resulting from direct plaintiff entitled to an instruc- victim, unique inflicted on the that, advising if it was unable damages resulting ag- from the but also for disability, apportion the the defendant was disease, pre-existing gravation of the victim’s for the entire Id. hable condition, injury.” 2 predisposition to established,14 Nates, al., Newbury Damages Ac- rule is well et in Tort Kimball Yasutake, (1994) [hereinafter, supra, § and in Kawamoto v. 15.01 at 15-4 tions Craven, See, for the whole of e.g., Bigley the tortfeasor be liable 769 P.2d disease); (cervical plaintiff's injuries.”). (Wyo.1989) degenerative disc Co., 1992), Mich.App. (Miss. McNabb v. Green Real Estate Speed, So.2d 28 In Brake v. (1975) ("brit Newbury 818-20 233 N.W.2d rule the court noted in dictum that diabetic"); Trail equivalent Lamoureaux v. Totem Ocean tle to the “thin skull” rule: Inc., (Alaska 1981) pre- Exp., injures suffering er another from a one who Bullock, ("thoracic syndrome”); existing Haws v. is liable for the entire dam- outlet condition (degenera (Tenn.App.1979) age apportionment can made be- when no 592 S.W.2d degenerative pre-existing condition and the dam- disc disease in tween the tive arthritis and back); ages the defen- Damages the defendant—thus also in Tort Actions neck and see ("[s]hould take his victim as he finds her. apportionment of dam dant must § 15.34[l][b] pre-existing at 33. ages prove impossible condition Id. Newbury Successive adopted as Hawaii law. b. “Unrelated” Accidents Kawamoto, doctors had treated the applied Newbury Courts have rule *13 years eight neck at for an arthritic least accidents, pre-existing successive where the plain- aggravated defendant the before the previous from a condition resulted accident pre-existing tiffs condition in an automobile pre-existing a rather than from disease accident. Wade, congenital Hylton In 29 condition. 98, 478 (1970), Colo.App. P.2d 690 the Colora Applying general principles, these howev- Appeals, against do Court of an action er, complicated multiple tortfea- becomes tortfeasors, applied second of two the New- difficulty sor situations. “The which con- bury pre-existing rule where condition right recovery ... fronts us is to prior a resulted from a accident for which dependent often confused and charac- on the recovery appellate had obtained. been The joint, of the concur- terization tortfeasor as distinguish court refused to a diseased rent, Shalen, Phennah v. 28 or successive.” congenital pre-existing condition from one 1304, (1980), Wash.App. 621 P.2d 1306 by prior caused trauma. Because New- denied, rev. 95 Wash.2d 1026 bury given, instruction not the court remanded the new reversed and case for a [Cjourts divisibility have looked not to the 100, at damages. trial on Id. at harm, but to the manner in which 691.15 oceurrence(s) place determining took joint, whether tortfeasors are concurrent Furthermore, where successive tortfeasors were involved, successive.... Defendants who right recovery are sometimes together, acting so as to share a common depends being upon which tortfeasor is sued. joint duty, Pena, 357, are tortfeasors. Characterized Colo.App. In 29 487 Bruckman v. (1971), plaintiff as concurrent tortfeasors have been those P.2d 566 was involved defendants, negligence one of whose set two unrelated accidents that occurred eleven motion a apart. plaintiff brought forth in series of events ac- months an [negligence] against other’s so as driver and which the acted owner of a truck only. first accident produce the end result. The final cate- involved in the At correctly tortfeasors, negli- jury that: gory instructed the is successive whose gent wholly are acts unrelated time subsequent injury which Where a occurs causation. by the aggravated condition caused

collision, your duty, possible, if it is disability pain amount of apportion the joint In the instances of or concurrent subsequent caused between that intuitively it is clear that there tortfeasors caused the collision. and that only injury. ease of can result one 359, P.2d at 567. Id. at 487 tortfeasors, however, inju- successive erroneously jury: trial court instructed by separate, im- ries are inflicted discrete you But if find the evidence does pacts it therefore would seem apportionment, permit an then the ought plaintiff to be to each able ascribe liable for the entire disabil- Defendants are responsibility dam- wrongdoer for ity. ages he caused. Id. The returned a verdict in favor (citations 23-24, plaintiff, appealed. 621 P.2d at omit- defendants 1307 ted). in- held that the erroneous Bruckman court 89, bar); Parker, prior twenty-seven years to accident at Romero v. P.2d 90 See also cf. (citing Hylton); Phennah, (Colo.App.1980) v. Fioret Wash.App. Maser at 621 P.2d at 1310 ti, ("[i]f inju (Fla.App.1986) (1980) (if 498 So.2d apportion injury jury is unable to as a result of a are ries sustained second accident a trial between two successive tortfeasors in inseparable from those sustained in earlier (from against ac defendants two unrelated both accident, liable the second tortfeasor be held cidents), severally jointly the tortfeasors Grain, injuries”); Bushong v. Kamiah for all the Baskin, liable); 103 Nev. and Kleitz (1975) (pre-existing 534 P.2d 1099 96 Idaho ). (1987) (same holding as Phennah P.2d motorcycle as a result of accident knee condition legally negli- “permitted] plaintiffs to recov- were caused defendant’s

struction inju- See, damages against gence. e.g., County er defendants Gibo v. & Honolulu, subsequent received supra. ries which the cannot When part negligence act of holding original apportioned, tortfeasor and from causes for which the defendants by subsequent inci- liable Id., way responsible.” defendants were in no unfairly for a dents holds the tortfeasor liable Colo.App. at 487 P.2d at 568. The portion of the tortfeasor did court, therefore, remanded the case for a Bruckman, Colo.App. not cause. See new trial on hand, *14 487 P.2d at 568. On the other the Bruckman result has been criticized because rule, Taking Newbury note of the the may plaintiff nothing though a recover even recognized Bruckman court that “the rules negligent, merely is the defendant because Newbury] apply also where [announced jury apportion damages is unable pre-existing by condition was caused See, Wade, among e.g., successive tortfeasors. (citing Hylton trauma.” Id. su- Comment, 119-120; ). However, supra, at Keeton et distinguished W. pra al., § Prosser and Keeton on Torts at 350 Newbury Hylton, reasoning that: (5th ed.1984) [hereinafter, n. 53 Prosser]. thing it is one to hold a tort-feasor who injures suffering pre-existing from a one damage condition liable for the entire c. “Related” Accidents Successive apportionment pre- no between the

when recognized have also that Courts damage existing condition and the caused apply should not if Bruckman rule a subse made, by it the defendant can be but is by quent injury legally previous is caused a say quite thing another that a tort- is, injury; injury legally if an causes liable, damages not for the feasor subsequent injuries, accidents and then the caused, injuries for which he but also sub- causing injury tortfeasor the first can be injured sequently person. suffered injuries subsequent jury liable for the if a We hold that the defendants here cannot apportion damages among cannot plaintiffs subsequent be held liable See, e.g., successive tortfeasors. Hashimoto injury or not and this is so whether Line, Pipe (Wyo. v. Marathon 767 P.2d 158 damage apportioned can be between the 1989). injuries. two Bruckman, Colo.App. at P.2d at against Hashimoto involved a trial the first (the of two tortfeasors second tortfeasor set-

Thus, Bruckman, trial). given Newbury and a tled before The trial court instructed plaintiffs recovery depending could differ plaintiff prove that the had to to a liability upon which tortfeasor’s is at issue. certainty” damages “reasonable his were of the tort- “[T]he mere substitution second the first tortfeasor and not the first, compelled feasor for the would have award, jury’s second. Dissatisfied with the Comment, different result in Bruckman.” plaintiffs appealed. appeal, plaintiffs On ar- Torts—Apportionment Damages—Indi- (once gued that the defendants determined to Injuries, visible 49 Den.L.J. negligent) apportioning be had the burden of [hereinafter, liability If Comment]. damages; if was unable to issue, negligent first tortfeasor is at and if a apportion, then the defendants would be lia- apportion damages, is unable to under Wyoming Supreme ble for all Newbury Hylton, plaintiff recovers Bruckman, disagreed. Relying Court fully from the defendant. reasoned juxtaposition injuries [t]he of Bruckman with ultimate were caused Hylton exemplifies competing policy con second which is a distinct inter- collision apportioning damages vening had cerns issue when cause because first inap- Consequently, successive tortfeasor situations. the one stabilized. it would be On hand, damages, plaintiff propriate [the tortfeasor] order to recover to hold first lia- proving damage no córrela- has the burden of ble for the entire when tion between the two accidents was plaintiffs dence how much of the shown.... [T]he first were can be negli- attributed to the defendant’s proximate cause of the second accident. gence, may rough apportion- make a ment. ... 161; White, see also Alexander v. (in (Colo.App.1971) P.2d 1120 against suit The trial court should instruct the tortfeasors, first of two court found second that if it is rough unable to make even a and, thus, was not related apportionment, to first first apportion it must the dam- subsequent injuries); tortfeasor not ages liable equally among the various acci- Freeman, Barkley Kan.App.2d dents .... (1992) (in against suit first apportioning damages, each acci- tortfeasor, reasonably accident not second considered, dent must regardless accident); Prosser, foreseeable result of first possibility be unable (“there § supra, at 352 situations persons to recover from involved in the which the wrongdoer earlier will be liable for other accidents because of the statute of damage, entire but the latter one will *15 contributory negligence. limitations or not” [such as where the earlier accident le- 264-65, Id. at 438 P.2d at 396-397. accident.]). gally causes a second In these later, years Two Morishige, Bachran v.

jurisdictions, proof the burden to show the supra, we reconciling were faced with Loui injuries connection between the is on the Bachran, and Kawamoto. In plaintiff the plaintiff; plaintiff and if the fails to meet the degenerated suffered a cervical disc as a burden, plaintiff the nothing. recovers result of two unrelated accidents in 1962 and d. Hawai‘i Case Law Bachran, 1964. 52 Haw. at 469 P.2d at against 810. At the trial the second tortfea- background, With this impor the (who allegedly accident), sor caused the 1964 tance this court’s seminal decision in Loui plaintiffs a doctor testified degener- Oakley, Loui, supra, becomes clear. In by ated disc was caused both the 1962 years Kawamoto, and decided two after we plaintiff accidents. The was awarded faced similar facts as did the Bruckman damages, and appealed. .the defendant On plaintiff injured court. The in Loui was appeal, that, the defendant contended accident, under automobile reaching but before Loui, damages the apportioned should be she was involved in three additional between the 1962 and 1964 accidents. On accident, unrelated accidents.. each hand, plaintiff that, the other contended plaintiff injured body. the same area of her Kawamoto, under Loui, the defendant was liable 50 Haw. at 438 P.2d at 395. We damages. for the entire held that the trial instructing court erred in that, if it apportion could not the We noted in Bachran that first “[a]t damages, the defendant would be liable for glance, [Loui and Kawamoto ] seem to from all four accidents. Id. at enunciate divergent two different and contra- 261, 438 P.2d at 395. Justice Bernard H. dictory rules of law. ... [Loui ] Levinson, noting competing policy con Id., does not overrule [Kawamoto].” cerns, deciding wrote that “[i]n we at Haw. 469 P.2d at 811. reasoned We must Scyl steer a careful course between the follows: denying la plaintiff any remedy and The defendant argues cites [Loui] Charybdis imposing on one defendant plaintiff that as the suffered neck and back damages, all the at least some of which would injuries in both the 1962 and 1964 acci- independent not have occurred without the dents, by plain- suffered 263-64, persons.” acts of other apportioned. tiff should This conten- (be P.2d at 396. providing tion would be sound Therefore, this court held that negligence injured when the defendant’s proper procedure plaintiff, is for the trial court suffering pain she was still to instruct the if disability injuries it is unable to she received in by preponderance .determine of the evi- the 1962 accident. (back hand, by plaintiff pains) brought if was not about the other had

On fully suffering pain involving any no recovered and transaction or action other injuries Thus, disability from she received in person.... are not faced with accident, all the and dam- the 1962 problem imposing on the defendant ages would be the suffered damages, all of the “at least some of which proximate of the 1964 accident and result would not have occurred without the inde- apportionment. [Loui there should be no ] pendent person.” acts of other Loui v. require apportionment in such does not 263-64, Oakley, Haw. at 438 P.2d at [50 circumstances. distinguishes We believe this factor 396]. rule is to hold that

We believe fair this case from both Loui and Bachran. injuries in person where a has suffered a Matsumoto, P.2d at 150. recovered, prior fully accident and has rule, The court then extended Kawamoto injured by negligence later he is stating that “[w]e cannot see realistic person another and the suffered differentiating classifying reason for bring pain, suffering the later accident pre-existing condition as to whether it was disability, proximate cause of the brought about disease or some exterior disability negli- pain, suffering and is the force or influence.” Id. at 484 P.2d at gence person. of that other In such cir- person cumstances that other should be Justice Levinson—the author of the Loui for the liable entire opinion—dissented Relying in Matsumoto. (citation omitted) added). (emphasis Id. Loui, logic expressed in Bachran and *16 person “fully a is or Whether recovered” opined Levinson should Justice suffering pain disability” “still is a factual apportion damages. remand for a trial to new question for the Id. at 469 P.2d at He stressed that Thus, judge because the trial failed to plaintiff fully Bachran the had recov- [i]n question jury, submit the to the we remand- injuries prior ered from sustained in a ed for a new trial. Id. accident and her latent condition was reac- later, year A we decided Matsumoto by negligent tivated the acts of the defen- Kaku, supra. plaintiff in The Matsumoto plaintiffs dant. ... In Bachran the condi- suffering pains was from back Thus, tion was dormant.... in the ab- “lifting possibly trash cans and from Karate negligence sence of the defendant’s act of Matsumoto, exercises.” 52 Haw. at plaintiff not would have incurred injured P.2d at 149. The defendant then expenses suffering medical at all. The plaintiff aggra- in an automobile accident and properly defendant was held to be liable plaintiffs condition. At vated the back for the entire physicians impossible testified that was (Levinson, J., Id. at 484 P.2d at 151 injuries. apportion the The trial court held dissenting) (emphasis original). in He also damages, the defendant liable for the total emphasized “[i]f noted Bachran including aggravation pre-existing plaintiff fully had not from recovered condition, appealed. back and the defendant injuries in she suffered the 1962 accident and appeal, Although On this court affirmed. experiencing pain in 1964 she was still Kawamoto, Loui, recognizing the and Ba- suffering Oakley, supra, ... [t]hen Loui v. law, chran line of case the court distin- applicable ... would be and the Bachran, guished reasoning Loui and that: apportioned.” should be Id. 52 Haw. 635- in Bachran the record showed that Bachran). (quoting 484 P.2d at 151 injuries plaintiff prior had suffered in an- Justice Levinson reasoned the dictum involving other automobile collision inde- very in Bachran situation at described pendent party; acts of a third however Matsumoto, in bar and thus concluded that against action was the driver of the auto- required apportionment. Loui mobile involved the second collision. Here, present undisputed evidence In the it is that at the uncontroverted is case plaintiff plaintiffs pre-existing condition the time of the collision the was suffering experiencing pain adopt reasoning still from of Justice Levinson’s dissent; pains brought lifting about ruling today back his to the that our extent is possibly engaging trash cans from majority opinion inconsistent receiving Matsumoto, Karate exercises. He was also majority overrule it. The medical treatment for these disabilities. opinion unfairly in Matsumoto holds a “de- question to be answered is whether responsible portion fendant for a certain the defendant should be held liable for the by plaintiff the total suffered which damages, including payment entire negligence were attributable expenses plaintiff medical would have defendant, proposition contrary phi- incurred even if the accident had not oc- losophy of Loui and Bachran and adverse to I curred. believe such a result would be concept implicit of fairness fault unjust. theory liability.” Duffy, supra, at 28. Id. at 484 P.2d at 151-52. He went on previously, As noted the determina to stress that plaintiff “fully whether has recovered” should it matter ... that in [n]or [Loui ] pre-existing from a condition or injuries plaintiffs were caused third whether such condition was “dormant” or parties they while the instant case question “latent” is a of fact for which medi “self-inflicted.” real issue is whether testimony especially appropriate.16 cal is suffering and re- Bachran, 52 Haw. at 469 P.2d at 811. ceiving injuries arising pri- treatment for policy or to the acts. The to be defendant’s Applying the law to the facts of this case is upheld is that the should not be defendant complicated mix because of the of variables pay made to he did not cause. condition; pre-existing involved: The source of the unrelated accidents; prior alleged unrelated immaterial. post-accident aggravation incidents added). (emphasis 484 P.2d at 152 injuries. same The threshold Thus, Justice Levinson would have remanded fully whether Montalvo had recovered from apportionment, the case for with the instruc- *17 pre-existing his condition or whether it was that, jury appor- if the were unable City dormant or latent at the time of the tion, “damages equally must distributed be not Fur- accident was submitted 637, among the various accidents.” ther, because of the restrictive nature of the 484 P.2d at 152. form, events, special post-accident verdict injuries,

Today, twenty-three years allegedly aggravated which his were after Matsumo- to, again correctly jury.17 we face the same issue and now also not submitted to the doctrine, mean, however, court), that a "invited 16. This does not defen- under the error” responsible pre-existing City precluded obtaining dant Rather, for the condition. should be from a rever- is See, Tanaka, 457, e.g., aggravation 45 sal. 462, Kealoha v. Haw. defendant is liable Batson, 468, (1962); 370 P.2d 471 State v. the condition. 924, 246-47, 930-31, 831 P.2d Haw. rule, Under this sometimes referred to as the denied, reconsideration doctrine, “thin skull” the fact that the harm (1992). However, the “invited error” doc- by suffered the victim exceeds the harm that applicable trine is not here for three reasons: reasonably expected one would have a normal already being the case is remanded because of person liability to suffer does not defeat or errors, Knodle, other see 69 Haw. at prevent being the defendant’s conduct from (“[i]n impending P.2d at 386 view of the retrial essence, injury.... cause of the the "take well”); errors as [other] discuss you simply him as find him" rule means that City questioned because the has the form of injury the extent of the victim’s actual from the verdict, 49(a) requires to review the HRCP us reasonably accident need not have been fore- calling entirety, instructions in their thus into seeable. 1; entirety question the of instruction No. Causation, Valuation, King, J. and. Chance in (3) Montalvo also failed to submit an instruction Injury Involving Preexisting Personal Torts Condi- determine, correctly jury asked the as a Consequences, tions and Future 90 Yale L.J. matter, threshold whether his had stabi- City lized at the time of the 1988 thermore, accident. Fur- City objected 17. We realize that the submitted instruction to the instruction at Montalvo Thus, level; however, incorrectly No. 1. if the instruction states the trial he did not raise the (other by cross-appeal. the law than as modified the trial error in his remand, jury carefully wrongdoer may On should be be hable for the additional by neghgent instructed to first determine whether Mon- harm inflicted treatment of Gibo, fully any pre-exist- by physician”); had victim a talvo recovered see also (“where ing condition or whether such condition was Haw. at 459 P.2d at 200 neghgence dormant latent as of or November 1988. defendant’s causes to a and[,] “yes” any plaintiff If the is of the above answer because weakened City inquiries, impaired physical then the is liable for all dam- suffers condition^] ages legally subsequent injuries, brought caused the November which are not City neghgence plaintiff, accident. if Montalvo’s about cause, pre-existing fully intervening condition was not resolved efficient defendant’s neghgence proximate or not dormant or latent at the time of the is deemed to be the accident, jury apportion. original then the subsequent must cause of both the jury apportion, injuries.”). If the is unable to even roughly, then it must divide the trial, City objected At to instruction equally among the various causes. ground unduly “it No. on the confuses jury ... showing because there’s no post- must deal with the any neghgence part there in fact separately. accident incidents can the doctors their treatment of Mr. fully not held be liable caused Montalvo.” (unless by subsequent incidents acci subsequent dent was cause argues surgery Montalvo was un- incidents). Thus, if the determines that and, necessary apparently, that he under- subsequent resulting inju incidents went it based erroneous ad- medical accident, ries were caused If, retrial, vice.18 the trial court deter- apportion pursuant then the must sup- mines that the evidence sufficient to Loui and the dissent in Matsumoto. port theory, then instruction No. 4 would apphcable diagno- because the erroneous 5. Medical Malfeasance Instruction sis, resulting in subsequent surgery, would have been a related “accident” that The trial court instructed the that: apportionable. would not be you If find the defendants are hable injury plaintiff, they for an are also 6. Evidence of Montalvo’s any aggravation injury hable for of such Seafood Business by neghgent additional medi- hospital cal or treatment or case of such presented Montalvo exten At injury. *18 attempts sive evidence about his to estabhsh agricultural a seafood and business subse City Montalvo’s Instruction con- No. 4. The quent Among accident. other tends that the instruction was unwarranted evidence, hcenses, letters, confusing. he offered contracts, containing figures detailed of ex Instruction No. 4 states black- pected imports and revenues. The evidence neghgent letter law that medical treatment is clearly probative was of Montalvo’s fitness injury. inju a foreseeable result of an If an work, a relevant consideration. ry legally negh- a defendant’s gence, the defendant can be held hable for claims that the trial subsequent neghgent admitting medical treatment for court erred the evidence be- (absent cause). intervening might misinterpreted cause the have (“an Prosser, 52, § supra, original represent earnings, See at 352 evidence to lost thus in- brief, City’s orthopedic surgeons 18. In his Montalvo contends that the before he underwent witness, Nakano, expert Dr. testified he would surgeiy. points back Montalvo also out that the undergo not have recommended that that, Montalvo testimony Lipp elicited from Dr. surgery neurologic back because there were no 1990, (Dr. Lipp) October he did not feel that orthopedic findings justify According it. symptomatology justified Montalvo's back sur- Montalvo, opined Dr. Nakano that Montalvo gery. separate should have been examined three flating special damages regarding award. The sion of evidence Montalvo’s sea business, that, contends under Hawai'i Rules of Evi- food (HRE) 403,19 dence Rule the trial court Cross-Appeal B. Montalvo’s should have excluded such evidence. remanding Because we are this case admissibility “[T]he determination of the of court, to the trial we address the merits of relevant evidence under HRE 403 is emi cross-appeal. Montalvo’s Montalvo contends nently suited to trial court’s exercise of excluding expert the trial court erred in requires its discretion because it a ‘cost- (or testimony enjoyment on hedonic loss of of benefit calculus’ and a ‘delicate balance be life) damages. expert testimony Whether probative prejudicial tween value and ef should be admitted at trial rests within the ” fect.’ County Kealoha v. Hawai‘i of sound discretion of the trial court and will 308, 315, Haw. 844 P.2d reconsider not be overturned unless there is a clear denied, ation 847 P.2d 263 Montalbo, abuse of discretion. State v. (1993) (citations omitted). (1992). 130, 140-41, Haw. 828 P.2d gave We note that the trial court the fol- that, indisputably, noteWe first he- lowing limiting proposed by instruction damages § donic are recoverable. HRS 663- City: 8.5(a) (Supp.1992) provides that “[n]oneeo- has introduced into evi- damages nomic which are recoverable in tort pertaining dence various documents to his pain actions include and suffer seafood capa- business to show that he was ing, anguish, disfigurement, mental loss of employment; ble of these documents are enjoyment life, consortium, loss of and all of not to be considered for claims for nonpecuniary (empha other losses or claims” past, present or future loss of income from added). Thus, important sis issue-of- such business. first-impression strictly we face is whether the trial court abused its discretion exclud rule, juries presumed “As a to be reason ing expert testimony on such “The able and follow all of the trial court’s instruc admissibility expert testimony Myers tions.” Corp., v. South Seas 76 Ha on how the value of [hedonic] wai'i controversy calculated is the focus of limiting We believe the instruction sufficient go ways.” debate. Decisions continue to both ly dispelled possible juror confusion. More Branch, Seeking Recovery T. Loss over, Montalvo testified that he did not make Trial, Enjoyment Life, April venture, money on his business and that he [hereinafter, Branch, Seeking Recovery ]. seeking was not lost income based on it. Thus, given discretionary govern expert standard of HRE testi- review, rules, mony. we find no error in the admis applies court’s Under these a court fact, may 19. HRE 403 states: trier of consider the trust- validity worthiness and of the scientific tech- grounds Exclusion of relevant evidence on nique analysis employed by confusion, or mode prejudice, or waste of time. Al- relevant, proffered expert. though evidence be excluded if *19 probative substantially outweighed its value is danger provides: prejudice, 21.HRE 703 of unfair confusion of issues, misleading jury, or or consid- opinion by experts. testimony Bases of time, delay, erations of undue waste of particular upon facts or data in the case which presentation needless of cumulative evidence. expert opinion bases an or inference be provides: 20. HRE 702 perceived by made to the ex- those known scientific, pert hearing. type at or before the If of a Testimony expert of witnesses. If technical, reasonably upon by experts partic- specialized relied in the knowledge or other will forming opinions ular field in or inferences assist the of to trier fact understand the evi- issue, upon subject, the facts or data need not be dence or to a determine fact in witness skill, may, qualified expert by knowledge, admissible in evidence. The court ever, how- as an ex- training, testimony perience, may testify disallow in the form of an or education opinion opinion underlying thereto in the form of an or inference if the facts or otherwise. determining the issue of assistance to the data indicate lack of trustworthiness. following deciding to of until factors whether ad- date the accident the time testimony: age mit such died at 77 and-a-half ... [sic] he weigh general acceptance court should [A] along with the other factors listed below able, would then [T]he be determine, order to under Rules [HRE] upon expected based hedonic loss of 702 and whether scientific evidence [$1,700,000], to life’s end to decide what admitted at trial. These factors should be amount should awarded for hedonic

include whether: damages. And that would be used as a 1) the evidence will assist the trier of guide give figure for the to them some fact to understand the evidence or to they upon part which would base that of issue; determine a fact in damages, just which is better than 2) the evidence will add to the common picking a number out of the air. understanding jury; theory Montalvo also noted that Rose’s of 3) underlying theory generally ac- estimating hedonic was based on valid; cepted as “(1) death, wages for [w]orker’s risk of

4) procedures generally are ac- used expenditures safety, [e]onsumer on cepted performed properly; as reliable if [s]urvey questionnaires.” 5) procedure applied were and con- properly present ducted in the instance. some, “Perhaps surprising develop- to The court should then consider whether methodologies place of ment a value on admitting pro- such evidence will be more human not a [Econo- life is new science.... prejudicial. bative than up ap- have come with two mists] basic proaches valuing for human life: human Montalbo, 73 Haw. at 828 P.2d at 1280- capital approach willingness-to-pay and the (citations omitted). approach.” McClurg, A. It’s a Wonderful testimony At Montalvo offered the Damages The Case Hedonic Life: for Rose, professor Dr. Louis of economics at Cases, Wrongful Death 66 Notre Dame Hawaii, University who testified as an [hereinafter, McClurg, L.Rev. expert wages. Additionally, on lost Montalvo willingness- It’s a ]. “[T]he Wonderful Life lengthy proof made a offer on Rose’s to-pay approach people’s consumption studies proposed testimony regarding hedonic dam- they behavior to determine much how are ages. argued, part: Montalvo willing pay possibility to reduce the testifying Doctor Rose would be that based dying. theory people is that the amount upon 99,[22] the article in Exhibit it is a willing pay lifesaving products are like rely upon standard to that article [in] safety smoke alarms or automobile devices therefore, community. economic And he- people place shows what dollar value on life.” speculative. donic are not It’s Branch, 42; Seeking Recovery, supra, at see upon based more than 40 as far studies McClurg, Life, supra, also It’s a Wonderful upon people the value of life which is based at 102-06. Based Montalvo’s offer of taking jobs, greater riskier no amounts of Miller, proof Willingness and his citation to pay, safety people factors such as what Pay, supra, proffered expert Rose’s testi- willing pay airbags things mony clearly willingness- was based on the that nature. approach to-pay McClurg discussed in the testifying Doctor Rose would be that in and Branch articles. Montalvo, particular Mr. based decisions, however, upon expectancy years, specifical- his life Recent [75.7] have ly rejected expert testimony would have certain loss based on hedonic dam- *20 Survive?, System 22. Exhibit 99 was not admitted into evidence 83 Nw.U.L.Rev. 876 and, fact, [hereinafter, Miller, in the record indicates that it was Willingness Pay~\, to which However, withdrawn. it is described on the ex- opposi- he had attached to his memorandum in figures hibit list as "Dr. Louis Rose's and arti- City's motion in limine to exclude presume cles.” We one of the articles was Mil- testimony on hedonic ler, Willingness Pay Age: to Comes Will the of

303 risk, willingness-to-pay perhaps ages upon based studies.23 reduce more a measure of testimony.24 person courts have allowed such how cautious a is than how much he Some reject minority we view and or she values life. majority agree with the trend towards inad- Few of us when confronted with the missibility testimony expert of on hedonic threat, would, money your “Your life!” damages willingness-to-pay based on studies. Benny, pause respond, like Jack “I’m thinking, thinking.” I’m Most of us would We stress the narrow issue is whether empty Why our wallets. that decision re- expert valuing an can assist a in of loss place flects less the value we on life than injury; enjoyment of life due to an the value buy airbag whether we is not immedi- is, most, tangentially of life itself at related. ately obvious. “Assum[ing] willingness-to-pay] [the Mercado, methodology (emphasis origi- in has some valid economic basis 974 F.2d at 871 nal). life], reject measure the value of we [to from, legal standpoint because it has joy The measurement of the of life is intan- nothing defining particular to do with gible. jury may upon A draw its own life enjoyment

value of the loss of life[.]” experiences attempting put monetary Wilt, (emphasis origi 443 S.E.2d at 205 figure living. pleasure It is “a nal). analysis, testimony Under the Wilt uniquely requiring ... human endeavor proffered by expert Montalvo’s would have virtually upon trier of fact to draw unlim- been irrelevant. beings.” unique ited factors to us as human Foster, Testimony 603 So.2d at 286. of an Moreover, agree we with other courts that jury making not aid the economist would assumptions willingness-to-pay made such measurements because an economist is questionable. studies are calculations “[T]he expert valuing pleasure no more at of life assumptions appear are based on average juror. enjoy- “[T]he than the loss logic good controvert sense.” Id. As did inju- resulting permanent from a ment of life court, following analysis we find the Wilt ry subject ... calcula- is to an economic Appeals of the United for the States Court Wilt, at tion.” 443 S.E.2d persuasive: Circuit Seventh Thus, proffered expert because the testi- [the]

We have serious doubts asser- actually mony tion that the studies on hedonic would have been [relied] irrelevant, jury, measure how much Americans value would not have assisted [S]pending safety not have added to the common life.... items re- and would willingness pay understanding jury, we hold that the flects a consumer’s Buracker, 39, erates, willingness-to-pay evi 23. See Wilt v. 191 W.Va. 443 the extent to which 196, (1993) (‘‘[t]he majority juris meaningfully calculating S.E.2d 205 dence assists expert suspect dictions that have addressed whether tes the intrinsic value of lie is Gas, best”); timony upon willingness-to-pay Trafalger studies is Oil & based Foster v. House cf. ("economic enjoyment (La.App.1992) to one’s loss of of life have relevant 603 So.2d 286 inadmissible”), testimony attempt extrapolate concluded that such which the 'value' theories -, denied, wages, -U.S. (1993); 114 S.Ct. 128 cert. of human life from various studies costs, Ahmed, etc., place 974 F.2d L.Ed.2d 867 Mercado have no in the calculation of (7th Cir.1992) ("we general damages"). 871 have serious doubts expert's] [willingness-to- [the about assertion that actually pay] ... measure how much studies (N.D.Ill.1985), F.Supp. Berry, 24. See Sherrod v. 159 life”); Livingston Americans value States, v. United Cir.1987), vacated, (7th 'd, 827 F.2d 195 aff (E.D.N.C.1993); F.Supp. 601 South (7th Cir.1988), rev’d on other 835 F.2d 1222 Brock, (Ind. Limousine v. 578 N.E.2d 677 lake (7th Cir.1988); grounds, and John 856 F.2d Wood, Ill.App.3d App.1991); Fetzer Steel, (N.D.Ill. son v. Inland 140 F.R.D. (1991); Ill.Dec. 569 N.E.2d 1237 Ster 1992). Wesley College, F.Supp. ner v. Mercado, supra, after (D.Del.1990); Given which was decided McClurg, ("[t]he see also It's a Wonderful Steel, and Inland Life, both Sherrod supra, most basic flaw in at 105-06 persuasive simply value of the federal district willingness-to-pay theory ... is that it is in the comport reality people cases. The District Court of Illinois of how does not implicitly willingness- Mercado Seventh Circuit and thus behave.... Given the flaws of the gen Steel. to-pay theory wide-ranging or limited Sherrod and Inland and the values it overruled *21 satisfy age-old trial court did not its discretion abuse invoked must the maxim of jurisprudence equity those “who seek excluding it. words, equity.” In

must do other equitable should not call its powers in IV. CONCLUSION justice party the name of to benefit a who trial Because the court erred not comes before the court with “unclean hands.” instructing legal on causation when view, my majority In fails to heed that primary it was the issue in the sensible rule. restricting scope special of the verdict majority acknowledges during The form, instructing jury incorrectly instructions, City settlement of the apportionment damages, we vacate the requested the standard instruction de- judgment and remand this case for new trial. fining legal causation terms of the “sub- however, agree, correctly We that the court Majority 6, stantial factor” test. at 287 n.& testimony expert excluded on hedonic dam- 884 P.2d at 350 & n. 6. That instruction ages. 288-89, properly stated the law. Id. at P.2d at 351-52. Montalvo did not submit his NAKAYAMA, Justice, concurring and Apparently sensing op- own instruction. an WEIL, dissenting, Judge, with whom Circuit portunity gain advantage because there joins. defining legal was no other instruction causa- tion, obviously then withdrew its majority opinion I concur in except as correct instruction plainly and submitted a part I III.A.2.b. Because believe that 289, incorrect one in its stead. Id. at 287 & under these circumstances the court should 884 P.2d at 350 & 352. There can be no recognize plain and reversible error doubt that did so because it be- give jury the trial court’s failure to instruc- lieved, correctly incorrectly, that the sec- explaining meaning legal causa- significantly ond instruction was more favor- tion, respectfully part I dissent from III. able to it. A.2.b. City’s gambit The failed when the trial plain represents The error doctrine a de rejected the substituted instruction. parture from the normal rules of waiver that give The failure of the trial court ie., review, govern appellate party that a correct “substantial factor” instruction was a who invites error in the trial court waives the City’s direct result of the tactical maneuver- right to have the error appeal. considered on Now, ing. having lost at Co., Chung See v. Kaonohi Center 62 Haw. us, comes before this court and asks in the 694, 603, 283, (1980); 618 P.2d Earl M. justice, jury’s interests of to reverse the ver- Constr., Inc., Jorgensen Co. v. Mark 56 Haw. dict based on “plain the trial court’s error” in 466, 475-76, 978, (1975). 540 P.2d failing give causation instruction. simple equitable proposi doctrine rests on a view, my misguided games- because its tion: consequences ordinary rule playing place, induced the error in the first of waiver can be severe and where it would any equitable forfeited claim it justice, in miscarriage result the rule will might request otherwise have had to Fox, not be followed. See State v. 70 Haw. plain court invoke the error doctrine. 46, (1988) (“In 56 n. 760 P.2d 676 n. Remarkably, majority dismisses the cases, plain civil error in rule is City’s causing role in the error as “unfortu- ”) ‘justice requires.’ (quoting voked when so nate and misdirected” but “not outcome dis- Assoc., Bertelmann Taas 69 Haw. positive!,]” asserting that (1987)); Chung, 735 P.2d accord goal preserving integrity [t]he 290; Haw. 618 P.2d at Turner jury system outweighs any argument far Willis, party, that a who withdraws a crucial in- struction, that, thus, any invited error and plain Because the error doctrine is based against party adverse verdict should equity justice, on notions of it follows appropriate be affirmed as an sanction. party public’s on whose behalf the doctrine system confidence in the *22 obviously not be such a will enhanced 884 P.2d 368 result. Regina MITCHELL, M. Claimant- my P.2d I Majority at at 354. have Appellant, public’s confidence doubts about whether by requir- jury system is undermined ing parties to live with results of errors Hawai'i, DEPARTMENT STATE invited, they go to even if the errors that EDUCATION, Employer- OF fact, par- In “crucial” matters. the idea that Appellee, Self-Insured. must bear the cost their own mistakes ties our presupposition at trial is a central No. 16881. Fox, justice. system of adversarial P.2d at 675. Supreme of Hawai'i. Court however, Assuming, that there is some Nov. 1994. public’s for concern about confi reason system, -willing I am dence matter, general appellate a

accept, as that plain trial notice error when the give an issue

court fails to an instruction on But being central to the tried.

that is matter only “justice re do so when so should Bertelmann, quires.” 69 Haw. at strongly justice disagree I that

P.2d at 935. plain notice

requires us to and reversible where was caused

error a case the error maneu party’s self-interested tactical a Indeed, mind, my justice requires

vering. plain

that we not recognize in such a error public To the extent that confi

situation.1 integrity jury system

dence in the issue, rewarding party I a submit by reversing jury’s

its a unfa gamesmanship has a far more deleterious

vorable verdict lasting impact public's confidence system forcing party than does the results the trial errors

live with

its caused. machinations mechanically applying “three-pronged error, majority noticing plain

test” for qua of the sine non plain sight

has lost it is invoked to be

error doctrine—that “justice requires.” the cir- so Given

when under which the induced

cumstances error, justice instructional does

trial court’s I recognize plain require us to error. part IIIA..2.b. of

therefore dissent

majority’s opinion. plain requiring in- noting reversal the cases the amounts to error worth none of It is games-playing support majority volved the sort instructional relies on to its conclusion present case. give in this causation instruction the failure