Kobashigawa v. Silva. Â

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Electronically Filed
Supreme Court
SCWC-30639
26-APR-2013
11:15 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---O0O---

LISA KOBASHIGAWA, as Personal Representative of
the ESTATE OF WILLIAM S. KOBASHIGAWA, Deceased, and
EARL KOBASHIGAWA and GAIL PEI, as Co-Trustees of the
MARGARET M. KOBASHIGAWA REVOCABLE LIVING TRUST and
as Assignees of MARGARET M. KOBASHIGAWA, Deceased,
Respondents/Plaintiffs-Appellants,

vs.

JOSEPH M.K. SILVA, Defendant,

and

CITY AND COUNTY OF HONOLULU,
Petitioner/Defendant-Appellee.

SCWC-30639

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30639; CIVIL NO. 06-1-0682)

APRIL 26, 2013

RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK,1 JJ.

1
Associate Justice Pollack was initially assigned to this case as a
substitute justice while he was a judge of the Circuit Court of the First
Circuit, in place of Associate Justice Duffy, recused. He subsequently became
a member of this court on August 6, 2012.
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OPINION OF THE COURT BY NAKAYAMA, J.

When a trial judge makes an unequivocal ruling that

evidence is admissible at trial, the party that had sought to

exclude such evidence by means of a motion in limine need not

renew its objection when that evidence is introduced at trial in

order to preserve the objection for appellate review.

In this case, Respondents/Plaintiffs-Appellants Lisa

Kobashigawa and Margaret M. Kobashigawa (collectively, the

Kobashigawas) brought a negligence action against Defendant

Joseph M.K. Silva and Petitioner/Defendant-Appellee City and

County of Honolulu (the City) for damages arising from a tragic

incident in which William S. Kobashigawa was struck and killed

while crossing a mid-block crosswalk shortly before sunrise

during his morning walk. Although the Kobashigawas settled their

claims against Silva, they proceeded to trial against the City;

the jury found the City not liable. On appeal, the Intermediate

Court of Appeals (ICA) vacated the jury verdict and remanded for

a new trial, concluding that the circuit court plainly erred in

giving a cautionary jury instruction that permitted the jury to

consider evidence of the Kobashigawas’ motive in filing suit and

in allowing the City to comment on such motive in its closing

argument.

In its application to this court, the City focuses on

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the cautionary jury instruction, as the ICA did, and argues to

this court that the ICA gravely erred in concluding that (1) the

instruction was an erroneous statement of the law and (2) the

circuit court’s issuance of the instruction satisfied the test

for plain error review. In their response to the application,

the Kobashigawas maintain that the instruction was an erroneous

statement of law because a plaintiff’s motive in bringing an

otherwise valid lawsuit is generally irrelevant to resolution of

the merits of the lawsuit. The Kobashigawas also argue that the

ICA’s application of plain error review did not constitute grave

error, although they reiterate the argument made to the ICA that

they were not required to make additional objections subsequent

to the hearing on their pretrial motions in limine in order to

preserve their claimed errors for appeal.

Although we agree with the ICA’s ultimate conclusion

that the circuit court’s cautionary jury instruction regarding

motive was a prejudicially erroneous statement of the law, we

disagree with its conclusions that the Kobashigawas failed to

preserve their objections to the admission of irrelevant evidence

concerning their motive in filing suit and that such failure

required it to resort to plain error review. Accordingly, as

modified by this opinion, we affirm the ICA’s judgment vacating

the circuit court’s judgment and remanding the case for a new

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trial.

I. BACKGROUND

A. Factual Background and Pre-Trial Proceedings

On December 22, 2005, shortly before sunrise at

approximately 5:45 a.m., William was in the act of crossing a

marked mid-block pedestrian crosswalk on Kamehameha Highway in

Kâne#ohe when he was struck and killed by a truck driven by

Silva. Kobashigawa v. Silva, 126 Hawai#i 62, 64, 266 P.3d 470,

472 (App. 2011).

On April 21, 2006, Lisa, William’s daughter,2 and

Margaret, William’s wife, filed a complaint against Silva in the

Circuit Court of the First Circuit3 alleging negligence and

negligent infliction of emotional distress and seeking special

and general damages. On March 5, 2007, the Kobashigawas filed a

First Amended Complaint adding the City as a defendant. The

Kobashigawas’ negligence claim against the City “included

defective design and/or maintenance of Kamehameha Highway,

including the pedestrian crosswalk and the surrounding trees,

street signs and/or street lights at or near the crosswalk.”

Kobashigawa, 126 Hawai#i at 64, 266 P.3d at 472. On March 22,

2
Lisa initially filed suit both in her individual capacity and in
her capacity as Personal Representative of William S. Kobashigawa’s Estate,
but later stipulated to dismissal with prejudice of all claims filed as a
plaintiff in her individual capacity.
3
The Honorable Rom A. Trader presided.

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2007, Silva then filed a cross-claim against the City, alleging

that it was solely responsible for William’s death. On March 18,

2008, the Kobashigawas filed the operative Second Amended

Complaint against Silva and the City, realleging negligence and

negligent infliction of emotional distress and adding a claim of

loss of consortium and services as to Margaret only.

Gina Bailey was the only eyewitness to the accident,

and she was deposed by the City on June 14, 2009. In addition to

her recollection of what happened at the scene of the accident,

she testified in pertinent part as follows:
Q After the date of the accident, did you talk to
anybody from the pedestrian’s family?
A Yes. That day, the police called me. He said that
the family would like to speak to me, and they gave me the
daughter’s phone number. And I called her, thinking maybe
she wanted to know about how her father died, if he said any
last words, if he was suffering, anything like that, and I
told her who I was, and the first thing out of her mouth
was, “Would you be willing to testify if we sued?”
Q Any other thing in that conversation?
A No. I pretty much hung up, after that. I was so mad.
She saw her father’s death with money signs in her eyes.[4]
Q And after that -- do you recall the daughter’s name?
A I don’t.
Q After that conversation, did you have any other
conversations with this daughter or any member of his
family?
A I did not.
Q And you knew this was the daughter because she
identified herself when you called?
A The police told me that this was the phone number of
the pedestrian’s daughter.

Bailey also stated that she remembered making the call one day

after the accident. Because Bailey no longer lived in Hawai#i,

4
This sentence was barred from admission as calling for speculation
pursuant to the court’s partial grant of the Kobashigawas’ Motion in Limine
No. 4, discussed infra.

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had moved to California, and was in the United States Navy and

expected to be deployed overseas shortly thereafter, she would be

unable to appear at trial; subsequently, the City designated

Bailey’s entire deposition transcript for use at trial, and Silva

designated portions of the transcript.

On September 21, 2009, the Kobashigawas filed their

Motion in Limine No. 1 seeking an order barring evidence and

argument “by [the d]efendants speculating on [the Kobashigawas’]

motives for pursuing the instant action, including, but not

limited to, that [the Kobashigawas] have pursued claims against

[the d]efendants for pecuniary reasons, i.e., [in] order to

recover monetary damages against wealthy or ‘deep pocket’

defendants in the case.” The Kobashigawas also filed their

Motion in Limine No. 4 objecting to admission of certain parts of

Bailey’s deposition testimony. At a hearing on the motions on

October 5, 2009, the circuit court denied Motion in Limine No. 1

and indicated its intent to give a cautionary instruction to the

jury that such evidence could only be considered in determining

bias, interest, or motive on the part of the Kobashigawas in

filing suit:
THE COURT: [. . .] With that, the [c]ourt will confirm its
ruling, will deny the motion, does intend to issue a
cautionary, which I will provide the parties with copies of
what the [c]ourt has sort of drafted and then we can sort of
visit this sufficiency or propriety of the way those are
drafted at a later point. But basically, the [c]ourt does
intend to sort of limit its consideration, any bias,

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interest or motive, if any is shown.
All right. So with that, that dispenses of
plaintiff’s number one.

With respect to Motion in Limine No. 4, the court granted the

motion in part as to certain of Bailey’s statements that called

for speculation and denied the remainder of the motion.

B. Relevant Trial Proceedings

Jury trial began on October 8, 2009. Meanwhile, the

Kobashigawas reached a settlement with Silva; on October 9, 2009,

the circuit court granted his petition for determination of good

faith settlement filed on September 22, 2009 and dismissed all

claims against him with prejudice. Thus, trial proceeded with

the Kobashigawas as plaintiffs and the City as the sole remaining

defendant. At trial, after Bailey’s deposition testimony was

read into evidence during the Kobashigawas’ case-in-chief, the

court read its cautionary instruction to the jury:
You have heard testimony from one witness about certain
statements attributed to a Kobashigawa family member
following Mr. Kobashigawa’s death. Your consideration of
this evidence is limited to determining the existence or
absence of any possible bias, interest or motive, if any, by
plaintiffs in bringing this lawsuit and not for any other
purpose. Specifically, you may not consider this evidence
of negative character or negative conduct by plaintiffs or
for any other purpose.

Later in the Kobashigawas’ case-in-chief, Gail Pei, William’s

daughter and Lisa’s sister, testified and disputed Bailey’s

allegations as to what was said during the phone call:
Q All right. Now, there also has been a deposition read
from a Gina Bailey --
A Uh-huh.

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Q -- who said she called the house the day after she was
given a number by the police to call the house to speak to a
daughter.
A Uh-huh.
Q Did you speak to her?
A The day after? No, no, not at all.
Q Do you know if any of your sisters spoke to her?
A No one even mentioned her name, no.
Q Okay. The day after your father’s death, that would
have been December 23, 2005. Who was at the house?
A All of us were at my parents’ house, but we were just
so busy because the telephone was ringing off the hook. It
was from the media and some -- I don’t know -- some
insurance person tried calling my mother. And it was crazy.
Q Okay. And so -- but in all of those phone calls, you
do not -- and no one mentioned that a witness was calling?
A No.
Q Did you have a conversation with somebody named Gina?
A I did.
Q And when did that occur?
A That had to have occurred -- it was -- I had already
gone back to work, so it was after the funeral. I’m not
sure if it was January 5th. I know I was back at work
because when the phone call came in, I was walking -- it was
after work, after 4:30, and I was walking to my car, which I
parked at Ala Moana Shopping Center.
Q Did the person identify herself?
A Yes, she did.
Q And what did she say?
A She identified herself and she said that she got my
number from the -- I guess one of the police investigators,
that I would be interested in speaking with her. So I took
her phone call and the only thing I remember asking about
her was -- of course we want to know if my dad had any last
words. But Gina went on to say that when she had gotten out
of her car to go to him to see if she could render CPR, he
was already passed.
Q Okay. And did you ask her if she wanted -- would be a
witness?
A No, I didn’t.
Q Was there any talk like that?
A No.

Gail further stated on cross-examination by the City:
Q You mentioned that you didn’t speak to a person the
day after this tragedy; is that correct? You didn’t speak
to a person by the name of Gina Bailey on the phone that
day?
A No. On that day things were pretty chaotic because we
had a funeral to plan.
Q Certainly. I understand that. Did you speak to her
though at any time? A person that you knew to be Gina
Bailey?
A That was after I had already gone back to work.
Q Uh-huh.

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A So it had to be about January 5th or somewhere around
that area or that time because I know I had gone back to
work because it was after work when I got that call on my
cell phone.
Q Had you given the police your cell phone number to be
contacted?
A Yes.
Q So had you asked the police to have the witness call
you?
A Yes.
Q And it was to your -- to the best you remember, it was
after the new year, 2006?
A It had to be.
Q Okay. And then you spoke to the woman on the phone?
A Yes.
Q About how long did you speak to her?
A Maybe about a minute or two.
Q Yeah. And -- and there was no -- there was no mention
about asking her to be a witness --
A No.
Q -- to testify in any lawsuit?
A No.
Q It was just a brief one-minute conversation?
A Right.
Q Did it end on -- on cordial terms, that telephone
call?
A Yes, it did, because I only had one question for her,
and that was, you know, if my dad had any last words.
Q And she told you obviously --
A Yes.
Q -- that -- no. Okay.

At the close of trial, the court’s cautionary instruction

regarding bias, interest, or motive was included in the packet of

jury instructions and was read to the jury again in full as part

of the instructions before closing arguments. During the City’s

closing argument, it pointed to the Kobashigawas’ possible

monetary motivation to file a lawsuit:
And that brings us to Gina Bailey. Gina Bailey. We
had her deposition testimony. You’ve heard she’s in the
Navy. She is the only person -- the only eyewitness who
does not have a stake in this case. She has no interest in
the case. And if plaintiffs attempt to gloss over Ms.
Bailey’s eyewitness account of this really horrible
accident, why would they do this? Well, there’s one aspect.
She told you in a day or so after the accident she got a
call from Officer Lisa Reed to call one of the family

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members to talk about the accident. Ms. Bailey made that
call, and the first words that Ms. Bailey told you that she
heard was will you testify when we sue? Ms. Bailey
obviously was appalled, recoiled and hung up the telephone
just as her deposition testimony told you. Why hang up?
It’s obvious, she recoiled from the notion of looking to
file a lawsuit within a day or so after this accident, not
asking her about did my father suffer, did my father have
any last words, what can you tell me, was he at peace,
nothing like that?
Now, Ms. Pei says it was her who talked to Ms. Bailey
and she said they had a nice conversation, a nice
conversation about her father’s last moments, totally in
contradiction to Ms. Bailey’s testimony. A nice
conversation on the telephone about her father’s last
moments that lasted about one minute. Does that make any
sense to you or does Ms. Bailey’s testimony make more sense
to you?

Before concluding, the City’s counsel referred to the

Kobashigawas’ monetary motive one additional time:
And there’s some other minor points that I want you to
consider about damages, and it comes with a question. Why
is the City in this lawsuit? To collect monetary damages,
but from whom do they seek this compensation? Well, of
course, it’s from the City. With this in mind, with those
facts in mind, consider, this, Dr. Hayes[5] was hired to go
to the scene to investigate it six days after the accident.
Counsel was certainly hired earlier than six days after the
accident to take him out there looks like. And Gina Bailey
says that she spoke to a family member within a day or so
after the accident who wanted her to testify in their
lawsuit. Is this case simply about getting a collectable
monetary award from the City when it was Mr. Silva who
caused the accident?

On October 21, 2009, the jury then returned a verdict in favor of

the City, indicating on the special verdict form that it did not

find the City negligent.6

5
Dr. Charles Hayes testified as an expert witness for the
Kobashigawas, having been qualified by the court as an expert in the field of
physics with expertise in the area of lighting.
6
Margaret died on February 26, 2010, between the end of trial and
the entry of judgment; consequently, Earl Kobashigawa, William’s son and
Lisa’s brother, and Gail were substituted as plaintiffs in their capacity as
co-trustees of the Margaret M. Kobashigawa Revocable Living Trust and as
(continued...)

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The circuit court entered its Judgment Pursuant to

Special Verdict on March 25, 2010. After disposition of the

City’s motion for taxation of costs and a stipulation to dismiss

all remaining claims, the Kobashigawas timely filed a Notice of

Appeal on July 28, 2010.

C. The ICA’s December 2, 2011 Published Opinion

On appeal to the ICA, the Kobashigawas raised several

points of error that were all related to the issue of Bailey’s

motive evidence and the circuit court’s cautionary instruction to

the jury on bias, interest, or motive.7 Specifically, the

Kobashigawas argued that the circuit court erred in: (1) denying

Motion in Limine No. 1 and denying in part Motion in Limine No.

4, because the City could then introduce evidence related to the

Kobashigawas’ motive for filing suit;8 (2) allowing the parts of

Bailey’s deposition testimony referring to the Kobashigawas’

motive, because such evidence was irrelevant and prejudicial; (3)

giving the cautionary instruction because this served to place

6
(...continued)
Margaret’s assignees.
7
The Kobashigawas also argued that the circuit court erroneously
awarded costs to the City because that award was based on the erroneous
verdict. The issue of costs is not before this court.
8
Although the Kobashigawas preserved their objections to the
introduction of such evidence and raised this point on appeal, the ICA did not
address the point in its analysis. It instead proceeded directly to the error
in the circuit court’s cautionary jury instruction. See Kobashigawa, 126
Hawai#i at 65, 266 P.3d at 473.

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prejudicial emphasis on the Kobashigawas’ alleged motive rather

than cure any prejudice created by the evidence; and (4) allowing

the City to comment on the Kobashigawas’ supposed motive in its

closing argument to the jury.

The City argued in response that the circuit court: (1)

did not err in denying the motions in limine because those

rulings are preliminary and cannot be deemed reversible error,

and because Bailey’s deposition testimony was relevant and

admissible; (2) did not err in allowing Bailey’s deposition

testimony to be introduced because it was relevant, the court had

already struck prejudicial portions of the testimony, and because

the Kobashigawas introduced it themselves in their case-in-chief;

(3) did not err in giving the cautionary jury instruction because

the Kobashigawas did not object to the instruction and failed to

propose a different instruction or alternate wording for the

instruction, and because the jury instructions as a whole were

not misleading or erroneous statements of the law; and (4) did

not err in allowing the City to comment on motive in its closing

argument because the Kobashigawas did not object and because the

closing argument was based on reasonable inferences from the

evidence presented during the trial.

In its opinion, the ICA agreed with the Kobashigawas

that the circuit court erred in issuing the cautionary

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instruction to the jury because it was “an erroneous statement of

the law.” Kobashigawa, 126 Hawai#i at 65, 266 P.3d at 473.

Although the ICA noted the City’s argument that the “Kobashigawas

did not object to this jury instruction at trial[,]” id., it

also stated that “even the complete failure to object to a jury

instruction does not prevent an appellate court from taking

cognizance of the trial court’s error if the error is plain and

may result in a miscarriage of justice.” Id. (quoting Montalvo

v. Lapez, 77 Hawai#i 282, 288, 884 P.2d 345, 351 (1994))

(internal quotation marks omitted).

The ICA thus stated that three factors must be

considered in determining whether a trial court has committed

plain error in a civil case: “(1) whether consideration of the

issue not raised at trial requires additional facts; (2) whether

its resolution will affect the integrity of the trial court’s

findings of fact; and (3) whether the issue is of great public

import.” Id. (quoting Montalvo, 77 Hawai#i at 290, 884 P.2d at

353).

The ICA concluded that all three factors were met, and

in proceeding to the point of error, held that the instruction

misstated the law because “[i]n bringing an action, the motives

of the plaintiffs are immaterial absent bad faith.” Id. The ICA

further held that in light of the improper jury instruction, the

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circuit court also erred in allowing the City to comment on the

Kobashigawas’ motive for bringing suit during its closing

argument. Id. at 66-67, 266 P.3d at 474-75. The ICA thus

vacated the circuit court’s March 25, 2010 Judgment Pursuant to

Special Verdict and remanded the case for a new trial. Id. at

67, 266 P.3d at 475.

The City timely filed its application on March 21,

2012. The Kobashigawas timely filed a response to the

application on April 5, 2012.

II. STANDARDS OF REVIEW

A. Motion in Limine

The granting or denying of a motion in limine is reviewed
for abuse of discretion. The denial of a motion in limine,
in itself, is not reversible error. The harm, if any,
occurs when the evidence is improperly admitted at trial.
Thus, even if the trial court abused its discretion in
denying a party’s motion, the real test is not in the
disposition of the motion but the admission of evidence at
trial.

State v. Eid, 126 Hawai#i 430, 440, 272 P.3d 1197, 1207 (2012)

(quoting Miyamoto v. Lum, 104 Hawai#i 1, 7, 84 P.3d 509, 515

(2004) (internal quotation marks, citations, and ellipsis

omitted)). Furthermore, as we have often stated, “[a]n abuse of

discretion occurs where the trial court has clearly exceeded the

bounds of reason or disregarded rules or principles of law or

practice to the substantial detriment of a party litigant.” Hart

v. Ticor Title Ins. Co., 126 Hawai#i 448, 455, 272 P.3d 1215,

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1222 (2012) (quoting Allstate Ins. Co. v. Pruett, 118 Hawai#i

174, 179, 186 P.3d 609, 614 (2008)) (brackets in original).

B. Jury Instructions

When jury instructions, or the omission thereof, are at
issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the
error was not prejudicial.

Nelson v. Univ. of Haw., 97 Hawai#i 376, 386, 38 P.3d 95, 105

(2001) (internal quotation marks and citations omitted).

III. DISCUSSION

This case prompts us to examine when and how an

objection to evidence admitted in a trial may be made and

preserved for appellate review. In its opinion, the ICA

correctly concluded that the circuit court erred in giving its

cautionary jury instruction regarding the Kobashigawas’ motive in

filing suit. However, it conducted its analysis using plain

error review premised on the fact that, during trial, the

Kobashigawas did not make contemporaneous objections to the

giving of the instruction or to references to motive in the

City’s closing argument. Thus, the ICA did not explicitly

address the points raised by the Kobashigawas alleging error in

the denial of their Motions in Limine No. 1 and No. 4, which in

turn allowed the introduction of inadmissible evidence--mainly

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from Gina Bailey’s deposition testimony--related to the

Kobashigawas’ motives for filing a lawsuit and naming the City as

a defendant. The ICA also arrived at its result without

considering whether the Kobashigawas had properly preserved their

objections by moving in limine to exclude all evidence and

argument concerning motive.

Case law dating back to 1983 in this state and even

earlier in others establishes that when a court makes a

definitive pretrial ruling on the admissibility of evidence, the

party that had unsuccessfully moved to exclude the evidence need

not repeat essentially the same objection during trial in order

to preserve a claim of error on appeal. Furthermore, although

originating in case law, the so-called “definitive ruling” or

“unequivocal ruling” exception has been made part of the rules of

evidence both at the federal level as well as in a number of

states. Although the Hawai#i Rules of Evidence (HRE) has

contained the exception since the enactment of an amendment to

Rule 103 in 2006, the ICA did not address the exception even

though the Kobashigawas specifically referenced it in their

argument that the circuit court had erred in allowing evidence

and argument on motive during trial.

In affirming the ICA’s judgment, we thus take this

opportunity to clarify that when the trial court makes a

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definitive pretrial ruling that evidence is admissible, the party

opposing that ruling need not renew its objection during trial in

order to preserve its claim on appeal that the evidence was

erroneously admitted. We further clarify that subsequent

introduction of the evidence by the party opposing the ruling

also does not waive that party’s claim of error on appeal.

A. Development of the Law of Motions in Limine in Hawai#i

“A motion in limine is a procedural device which

requests a pretrial order enjoining opposing counsel from using

certain prejudicial evidence in front of a jury at a later

trial.”9 Barcai v. Betwee, 98 Hawai#i 470, 489, 50 P.3d 946, 965

(2002) (Acoba, J., concurring) (quoting State v. Miura, 6 Haw.

App. 501, 504, 730 P.2d 917, 920 (1986)) (internal quotation

marks omitted); see also, e.g., 75 Am. Jur. 2d Trial § 39 (2007)

(“The purpose of a motion in limine is to prevent irrelevant,

inadmissible, or prejudicial matters from being admitted in

evidence or to exclude evidence when its probative value is

outweighed by the danger of unfair prejudice.” (footnotes

omitted)); Johnny K. Richardson, Use of Motions in Limine in

Civil Proceedings, 45 Mo. L. Rev. 130, 134 (1980) (“The

9
In addition to excluding evidence the opposing party seeks to
introduce, a party may also seek an in limine ruling in advance of trial
confirming that its own evidence is admissible. See, e.g., 21 Charles Alan
Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence §
5037.10, at 758 & n.6 (2d ed. 2005).

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prohibitive motion in limine requests the court to issue an order

prohibiting opposing counsel and his witnesses from alluding to

the prejudicial evidence in any manner during any portion of the

trial proceedings.”).

In an earlier case often cited in this jurisdiction for

its discussion on motions in limine, the ICA stated:
In essence, a motion in limine is generally made before or
at the beginning of a jury trial for a protective order
against prejudicial questions, statements, and evidence. It
serves the useful purpose of raising and pointing out before
trial certain evidentiary rulings the court may be called
upon to make during the course of trial.

Lussier v. Mau-Van Dev., Inc., 4 Haw. App. 359, 393, 667 P.2d

804, 826 (1983) (citing Twyford v. Weber, 220 N.W.2d 919 (Iowa

1974); Akins v. State, 429 N.E.2d 232 (Ind. 1981); Lagenour v.

State, 376 N.E.2d 475 (Ind. 1978); Tom H. Davis, Motions in

Limine, 15 Clev.-Marshall L. Rev. 255 (1966)). Even earlier, in

an opinion issued when the motion in limine was still gaining

acceptance as a standard pretrial procedure, the Texas Supreme

Court noted:
The purpose in filing a motion in limine to suppress
evidence or to instruct opposing counsel not to offer it is
to prevent the asking of prejudicial questions and the
making of prejudicial statements in the presence of the jury
with respect to matters which have no proper bearing on the
issues in the case or on the rights of the parties to the
suit.

Bridges v. City of Richardson, 354 S.W.2d 366, 367 (Tex. 1962)

(emphasis added).

As with other evidentiary rulings, “[t]he granting or

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denying of a motion in limine is within the trial court’s

inherent power to exclude and admit evidence.” Lussier, 4 Haw.

App. at 392, 667 P.2d at 826 (citing Jean C. Love, Note, Pretrial

Exclusionary Evidence Rulings, 1967 Wis. L. Rev. 738); see also

Burrus v. Silhavy, 293 N.E.2d 794, 798 (Ind. App. 1973) (“The

trial court’s authority to entertain ‘motions in limine’ emanates

from its inherent power to admit and exclude evidence. This

inherent power to exclude extends to prejudicial questions and

statements that could be made in the presence of a jury and

thereby interfere with fair and impartial administration of

justice.”). Because a denial of a pretrial motion in limine to

exclude evidence is generally regarded as an interlocutory order

subject to reconsideration when the evidence is actually offered

during trial, such “denial of a motion in limine [to exclude], in

itself, is not reversible error. The harm, if any, occurs when

the evidence is improperly admitted at trial.” Lussier, 4 Haw.

App. at 393, 667 P.2d at 826 (citing Akins, 429 N.E.2d 232;

Dayton Walther Corp. v. Caldwell, 389 N.E.2d 723 (Ind. App.

1979); State v. Church of Nazarene of Logansport, 377 N.E.2d 607

(Ind. 1978)). Therefore, consonant with the principle that

preservation of error is a necessary prerequisite for review of

that error on appeal, when a motion in limine to exclude evidence

is simply denied without a ruling on admissibility and the

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evidence is subsequently introduced by the opposing party during

trial, “a proper objection at that time is necessary to preserve

the error for appellate review.” Id. (citing Love, supra;

Lagenour, 376 N.E.2d 475; Church of Nazarene of Logansport, 377

N.E.2d 607; Twyford, 220 N.W.2d 919; United States v. Traylor,

656 F.2d 1326, 1333 n.6 (9th Cir. 1981); Collins v. Wayne Corp.,

621 F.2d 777 (5th Cir. 1980); Hartford Accident & Indem. Co. v.

McCardell, 369 S.W.2d 331 (Tex. 1963)). Thus, as is generally

true for appellate review of any issue, the failure to object to

evidence introduced after denial of a pretrial motion in limine

to exclude that same evidence will result in waiver of the

objection on appeal. See id. (citing Rojas v. Richardson, 703

F.2d 186 (5th Cir. 1983)).

Nevertheless, even at the time Lussier was decided,

there was an exception to the general rule: “objections need not

be renewed if the prior ruling on the motion in limine amounted

to an unequivocal holding concerning the issue raised.” Id.

(citing State v. Miller, 229 N.W.2d 762 (Iowa 1975)). “Where a

hearing was held, counsel presented legal arguments, and the

trial court ruled whether or not the challenged evidence would be

admitted at trial, there is no necessity of further objection to

preserve such error for appeal.” Id. at 393-94, 667 P.2d at 826

(citing State v. Harlow, 325 N.W.2d 90 (Iowa 1982)) (emphasis

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added). With these principles in mind, the Lussier court

ultimately held that because the trial court simply denied the

motion in limine without ruling on the admissibility of the

evidence at that time, an objection was necessary at trial to

preserve the error for appeal; because Lussier did not enter any

objections on the record, he waived his challenge to the

introduction of evidence concerning his motives in filing suit.

Id. at 394, 667 P.2d at 826-27.

Subsequently, the law of motions in limine in Hawai#i

was not revisited until 1995. In Craft v. Peebles, Teena Craft

brought a medical malpractice action against Lawrence Peebles,

M.D. and a products liability action against McGhan Medical

Corporation for manufacturing allegedly defective breast

implants. 78 Hawai#i 287, 290, 893 P.2d 138, 141 (1995). At the

pretrial stage, Craft filed motions in limine seeking to exclude

evidence of, in relevant part, her criminal record, alleged

substance abuse, and alleged abuse by her spouse. Id. at 292,

893 P.2d at 143. The circuit court granted Craft’s motion to

exclude evidence of substance abuse, but denied as to evidence of

her criminal record and her allegedly abusive spouse insofar as

they were relevant to her claims of mental distress. Id.

Because Craft did not make any objections to the introduction of

the evidence at trial, this court noted that “objections not

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raised or properly preserved at trial will not be considered on

appeal.” Id. at 294, 893 P.2d at 145 (citing MPM Hawaiian, Inc.

v. Amigos, Inc., 63 Haw. 485, 630 P.2d 1075 (1982)).

Craft argued to this court that because the circuit

court had already denied her pretrial motions in limine to

exclude the evidence, the definitive ruling exception mentioned

in Lussier applied and she was not required to make further

objections at trial to preserve that point of error on appeal.

Id. at 294-95, 893 P.2d at 145-46. This court disagreed with

Craft’s argument, stated that the rulings on the motions in

limine “were preliminary in nature and were reserved for

consideration during trial[,]” and quoted the following from the

circuit court’s ruling:
[T]he [c]ourt is limiting its ruling solely on the grounds
raised in the Motion in Limine. To the extent that the
[c]ourt grants or denies a Motion in Limine, if there are
further foundational requirements that need to be met, the
proponents of the introduction of the evidence shall also
meet these foundational requirements, so for example, if the
[c]ourt is denying a motion in limine pertaining to the
admission of certain evidence, the [c]ourt is only ruling on
the issue raised in the motion.

Id. at 295, 893 P.2d at 146 (some brackets added and some

brackets removed; emphasis added). This court thus concluded

that the definitive ruling exception did not apply and that

objections at trial were required because the circuit court “did

not rule with certainty that the evidence concerning Craft’s

criminal record and family problems would be allowed into

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evidence. Instead, it expressly reserved the right to rule on

the subject evidence until the foundational grounds were

satisfied during trial.” Id.

Shortly thereafter, the ICA commented on motions in

limine in Page v. Domino’s Pizza, Inc., 80 Hawai#i 204, 908 P.2d

552 (App. 1995). There, Michael Page brought suit claiming

damages arising from an incident inside a Domino’s store where

the stool on which he had been sitting suddenly collapsed. Id.

at 205-06, 908 P.2d at 553-54. On appeal, Domino’s argued in

part that the circuit court “erred in denying its motion in

limine to exclude evidence of prior incidents involving the

collapse of two other stools in the same Domino’s store and in

subsequently allowing admission of such evidence over objection.”

Id. at 205, 908 P.2d at 553. Based on its review of the motion

in limine hearing, the ICA determined that the circuit court

unequivocally decided that it would deny the motion in limine and

admit Page’s prior incident evidence. See id. at 208 n.4, 908

P.2d at 556 n.4 (“THE COURT: . . . I’m going to allow it. . . .

Yeah, I’m going to let it in.”); see also id. at 205 n.1, 908

P.2d at 553 n.1 (citing Craft, 78 Hawai#i at 294-95, 893 P.2d at

145-46; Lussier, 4 Haw. App. at 393, 667 P.2d at 826) (“[W]e

conclude that the trial court’s ruling on Domino’s motion in

limine, see n.4 infra, amounted to an ‘unequivocal holding’

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concerning the issue raised, thereby removing the need for

Domino[’s] to renew its objection during trial.”).

The most recent discussion on the law of motions in

limine in this jurisdiction appears in the 2002 Barcai case,10 in

which the family of Francis Barcai brought a medical malpractice

action against Jon Betwee, M.D. after Barcai was found dead in

the psychiatric ward of Maui Memorial Hospital. 98 Hawai#i at

474, 50 P.3d at 950. Barcai was initially admitted to the

hospital on June 11, 1990 in a psychotic state but became calmer

and consented to psychiatric treatment after receiving

antipsychotic medication. Id. at 473, 50 P.3d at 949. After

treatment by several doctors yielded positive results, Barcai

again began to suffer from panic and anxiety after June 13; on

June 19, Dr. Betwee prescribed Stelazine, an antipsychotic

medication, and although Barcai’s condition alternately improved

and worsened, he was found dead on the morning of June 27. Id.

at 473-74, 50 P.3d at 949-50. An autopsy did not reveal the

cause. Id. at 474, 50 P.3d at 950. Barcai’s family filed a

complaint against Betwee and Maui Memorial Hospital, primarily

alleging medical negligence for failure to diagnose and treat the

10
In one other case, this court agreed with the appellant that an
unequivocal pretrial ruling admitting evidence “was sufficient to preserve the
issue for appeal.” Ditto v. McCurdy, 98 Hawai#i 123, 130 n.9, 44 P.3d 274,
281 n.9 (2002) (citing Craft, 78 Hawai#i at 295, 893 P.2d at 146; Page, 80
Hawai#i at 205 n.1, 908 P.2d at 553 n.1; Lussier, 4 Haw. App. at 393-94, 667
P.2d at 826).

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neuroleptic malignant syndrome11 they claimed to be the cause of

Barcai’s death.12 Id.

Before trial, Barcai’s family filed motions in limine

to exclude evidence of Barcai’s prior violent acts, as well as

any reference to Barcai’s hospitalization at the Hawai#i State

Hospital in 1989. Id. at 474-75, 50 P.3d at 950-51. The circuit

court ruled that evidence of Barcai’s history would be

inadmissible because of an agreement between the parties that Dr.

Betwee’s treatment of Barcai was not based on Barcai’s past

behavior and an offer by Barcai’s family to dismiss certain

claims that would implicate the prior violence evidence. Id. at

475, 50 P.3d at 951. The next day, following jury selection,

defense counsel asked the court to reconsider its ruling on the

grounds that Dr. Betwee would testify that he had taken Barcai’s

history of violence into account during treatment and that

11
Neuroleptic malignant syndrome (NMS) “is a relatively rare but
potentially serious complication of antipsychotic medication that[,] at the
time of Barcai’s hospitalization, was thought to be fatal in approximately
four to twenty[-]nine percent of cases.” Barcai, 98 Hawai#i at 473, 50 P.3d
at 949 (citing Gerard Addonizio & Virginia Lehmann Susman, Neuroleptic
Malignant Syndrome: A Clinical Approach 7-8, 87-88 (1991)). “Early
recognition of NMS and discontinuation of the offending antipsychotic
medication is critical; in general, it is thought that the earlier the signs
and symptoms of NMS are recognized and the offending medication is stopped,
the better the patient’s chances for survival.” Id. (citing Addonizio &
Susman, supra, at 52).
12
Barcai’s family also alleged false imprisonment, battery,
negligent infliction of emotional distress, and negligent failure to obtain
informed consent before administering the antipsychotic medication. Barcai,
98 Hawai#i at 474, 50 P.3d at 950. The claims against Maui Memorial Hospital
were resolved by way of summary judgment and stipulated dismissal by the
parties; consequently, Dr. Betwee was the only defendant at trial. Id.

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Barcai’s family had already stipulated to allowing Barcai’s

medical records, which contained references to Barcai’s past

violence and prior hospitalization, into evidence. Id. Although

Barcai’s family argued that such a change in the court’s ruling

would prejudice them because they could have questioned potential

jurors for bias related to Barcai’s prior violence if they knew

the evidence would be admissible, the court reversed its earlier

ruling and decided the evidence was admissible. Id.

On appeal, Barcai’s family argued that the circuit

court’s reversal of its initial ruling after jury selection

deprived them of their right to exercise their peremptory and

for-cause challenges and therefore impaired their right to a fair

and impartial jury because they relied on the initial ruling and

did not attempt to excuse “those potential jurors who may have

been biased against Barcai due to his history of violence.” Id.

at 476, 50 P.3d at 952. In an opinion written by Chief Justice

Moon, this court rejected that argument: Barcai’s family did not

point to anything in the record that showed Barcai’s past

violence was even discussed at trial; therefore, Barcai’s family

could not demonstrate that they suffered any actual prejudice in

jury selection or in the outcome of the trial. Id. In fact,

this court specifically noted that the only evidence of Barcai’s

prior violence that was admitted had been offered by Barcai’s

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family as part of the medical record to which both parties had

stipulated; moreover, they had offered the evidence before the

circuit court made its initial in limine ruling. Id. at 477, 50

P.3d at 953. This court therefore held that there was no

impairment of Barcai’s family’s right to a fair and impartial

jury because they “could not have relied upon the trial court’s

initial ruling in the first place to assume that they did not

have to question potential jurors about their attitudes towards

violence and cannot [on appeal] blame the trial court for their

own decision not to do so.” Id.

In a separate concurrence, Justice Acoba, joined by

Justice Ramil, agreed with the court’s result in concluding that

Barcai’s family had suffered no prejudice as a result of the

circuit court reversing its initial ruling on the motion in

limine, but disagreed with Dr. Betwee’s argument that Barcai’s

family could not rely on the circuit court’s initial ruling and

that they “should have anticipated its reversal[.]” Id. at 488,

50 P.3d at 964 (Acoba, J., concurring). Whereas the majority

opinion focused on the motion in limine only as it was relevant

to the fair and impartial jury argument, presumably because that

was the scope of the issue raised on appeal, Justice Acoba’s

concurring opinion explored in more detailed fashion the purposes

of motions in limine and the rationales supporting the reasoning

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that parties should be able to rely on a court’s rulings on such

motions. He stated:
[Dr. Betwee]’s approach [in arguing that Barcai’s family
erred in relying on the trial court’s initial in limine
ruling] places the responsibility on litigants to second-
guess each in limine ruling a trial court makes. In such a
setting, the court’s order remains subject to question, the
precise situation sought to be avoided by obtaining an in
limine ruling. If the parties cannot rely on the court’s
ruling, chaos will result. Inasmuch as parties reasonably
expect courts to abide by their decisions on such motions,
we should not place the onus on a party to speculate as to
whether a particular ruling on a motion in limine will later
be reversed by the trial court. For the same reason, we
should not engage in a post-trial analysis as to whether
such a guess was appropriate or not, as [Dr. Betwee] would
apparently invite us to do.

Id. “The motion in limine affords an opportunity to the court to

rule on the admissibility of evidence in advance,” id. at 489, 50

P.3d at 965 (quoting Kuroda v. Kuroda, 87 Hawai#i 419, 427, 958

P.2d 541, 550 (App. 1998)) (internal citations omitted; emphasis

removed), and in doing so it “is intended to establish the

parameters for the introduction of evidence at trial[,]”

id. (citing State v. Gonsalves, 5 Haw. App. 659, 668, 706 P.2d

1333, 1340 (1985), overruled on other grounds by State v.

Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993)), and “also assists

litigants in formulating their trial strategy.” Id. (citing

United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994),

cert. denied, 513 U.S. 1182 (1995)).

Justice Acoba thus noted that “[a]s a general matter,

parties should be able to rely on a court’s in limine rulings.”

Id. Importantly, his concurrence also reaffirmed the logic of

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the unequivocal ruling exception first adopted by the ICA in

Lussier: “It follows, then, that a ruling on a motion in limine

does not require further objection during trial to preserve an

issue for appellate review because the matter had been previously

raised, argued, and ruled on[.]” Id. at 490, 50 P.3d at 966

(citing Lussier, 4 Haw. App. at 393-94, 667 P.2d at 826). When a

trial court’s ruling on a motion in limine is “unequivocal,” it

is thereafter “illogical for litigants to have to consider

whether or not their reliance on such rulings would be considered

reasonable upon appellate review[.]” Id. at 491, 50 P.3d at 967.

On the other hand, when the court cannot render an

unequivocal pretrial ruling on the admissibility of the

particular evidence because it must wait until foundational

prerequisites are established at trial or a proper trial record

is otherwise first developed, the court should accordingly

“refrain from rendering a pretrial ruling and defer such ruling

for trial.” Id. (citing United States v. Cline, 188 F. Supp. 2d

1287, 1291 (D. Kan. 2002) (internal citations omitted); State v.

Dopp, 930 P.2d 1039, 1045-46 (Idaho App. 1996)). “If the trial

court must defer ruling on the motion in limine, its decision

should be expressly communicated to the parties and placed on the

record.” Id. at 492, 50 P.3d at 968 (citation omitted).

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B. Under the 2006 amendment to HRE Rule 103, which applies to
this case, the Kobashigawas did not waive any objection to the
circuit court’s admission of evidence and allowance of argument
commenting on their motive for filing suit

1. FRE Rule 103

Effective December 1, 2000, Federal Rules of Evidence

(FRE) Rule 103 was amended to include the following language, and

currently13 reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof.
Once the court rules definitively on the record--either
before or at trial--a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.

This amendment essentially codified the definitive ruling

exception into the FRE and was intended to resolve the circuit

split that had existed for many years regarding the issue of

whether a contemporaneous objection to evidence proffered during

trial is necessary after a court has denied a party’s pretrial

motion in limine to exclude that same evidence.

Prior to 2000, “the pre-amendment version of FRE 103

did not clearly address the issue of whether, and in what

circumstances, an objection raised via motion in limine must be

renewed at trial to preserve it for appeal.” Christopher J.

13
FRE Rule 103 was again amended in 2011, but only for the purpose
of making nonsubstantive stylistic changes. See Fed. R. Evid. 103 advisory
committee’s note (“The language of Rule 103 has been amended as part of the
restyling of the Evidence Rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These changes are
intended to be stylistic only. There is no intent to change any result in any
ruling on evidence admissibility.”). As a result of the 2011 amendment, the
definitive ruling exception language was moved from FRE Rule 103(a) to FRE
Rule 103(b).

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Douglass, Objections, Renewals, and Preemptive Introductions:

Erasing Uncertainty by Revisiting FRE 103, 86 Iowa L. Rev. 949,

960 (2001). Some circuits had held that a pretrial motion in

limine alone was insufficient to preserve an objection for appeal

and that a renewal of the objection was always required when the

evidence was introduced during trial. See, e.g., Collins v.

Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980); Nw. Flyers, Inc.

v. Olson Bros. Mfg., 679 F.2d 1264, 1275 n.27 (8th Cir. 1982);

Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1504 (11th

Cir. 1985). Other circuits, adopting the definitive ruling

exception, held that an objection need not be renewed during

trial when the trial court has made an explicit and definitive

ruling on a pretrial motion in limine. See, e.g., Rosenfeld v.

Basquiat, 78 F.3d 84, 90-91 (2d Cir. 1996); Am. Home Assurance

Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324-25 (3d Cir.

1985); Palmerin v. City of Riverside, 794 F.2d 1409, 1411-13 (9th

Cir. 1986); United States v. Mejia-Alarcon, 995 F.2d 982, 985-88

(10th Cir. 1993). As the Advisory Committee on Evidence worked

on amending FRE Rule 103 during the 1990s, one circuit even

preemptively adopted the Advisory Committee’s proposed amendment

before it was finalized. See Wilson v. Williams, 182 F.3d 562,

565-66 (7th Cir. 1999) (en banc).

Under the amended rule, “an objection or offer of proof

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need not be renewed to preserve a claim of error with respect to

a definitive pretrial ruling.” Fed. R. Evid. 103 advisory

committee’s note. This is because “[w]hen the ruling is

definitive, a renewed objection or offer of proof at the time the

evidence is to be offered is more a formalism than a necessity.”

Id. (citations omitted). “The requirement that the ruling be

‘definitive’ is clearly satisfied if the trial judge rules in an

unequivocal manner, without reserving the matter for further

consideration as the trial progresses and the evidence unfolds.”

Christopher B. Mueller & Laird C. Kirkpatrick, 1 Federal Evidence

§ 1:10 (3d ed. 2007). The 2000 amendment thus effectively

resolved the circuit split in favor of the courts holding that a

pretrial motion in limine seeking exclusion of evidence preserved

the moving party’s objection without requiring a renewal of the

objection during trial so long as the trial court had

definitively ruled on the motion. See, e.g., United States v.

Brown, 669 F.3d 10, 22 n.18 (1st Cir. 2012) (citing Fed. R. Evid.

103(a)) (“The court explicitly denied Elaine’s request to exclude

Monier’s testimony and so Elaine’s objection was properly

preserved for purposes of appeal.”); Dream Games of Ariz., Inc.

v. PC Onsite, 561 F.3d 983, 988 n.3 (9th Cir. 2009) (“The

district court was sufficiently informed as to PC Onsite’s

grounds for objection and denied that motion in a definitive

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ruling. Therefore, PC Onsite’s objection to screen displays that

contain unprotectable elements has been preserved for appellate

review.”); Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th

Cir. 2002) (citations omitted) (“The 2000 amendment to rule

103(a) changed the law that had prevailed in this circuit. . . .

Before the amendment, we required an objection at trial to

preserve the error.”); Mukhtar v. Cal. State Univ., Hayward, 299

F.3d 1053, 1062 (9th Cir. 2002) (citing Fed. R. Evid. 103(a)(2))

(“Contemporaneous objection is not required where, as here, the

trial court definitively ruled on a motion in limine after

exploring CSUH’s objection.”).

2. HRE Rule 103

A similar split of authority developed and continues to

exist among state appellate courts. As with the pre-2000 federal

circuit split, state courts also fell on both sides of the

question of whether an objection during trial was necessary after

a party had unsuccessfully moved to exclude evidence by means of

a pretrial motion in limine. Some courts held that a

contemporaneous objection was required when evidence was

introduced at trial even though the party had filed a pretrial

motion in limine seeking to exclude that evidence.14 Other

14
See, e.g., Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d
331, 335 (Tex. 1963); Zehner v. Post Oak Oil Co., 640 P.2d 991, 995 (Okla.
App. 1981); Smith v. Holloway Constr. Co., 289 S.E.2d 230, 231 (W. Va. 1982);
(continued...)

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courts held that a pretrial motion in limine, if fully argued to

and definitively ruled upon by the trial judge, was sufficient to

preserve for appeal a party’s objection to the admission of

evidence without further objection during trial.15

Following the 2000 amendment to FRE Rule 103, some

state legislatures and/or supreme courts moved to add an

identical or similar provision to their own rules of evidence.16

14
(...continued)
Maricle v. Speigel, 329 N.W.2d 80, 84-85 (Neb. 1983) (citing Twyford v. Weber,
220 N.W.2d 919 (Iowa 1974); Vorthman v. Keith E. Myers Enters., 296 N.W.2d 772
(Iowa 1980); Jeffrey F. Ghent, Annotation, Modern status of rules as to use of
motion in limine or similar preliminary motion to secure exclusion of
prejudicial evidence or reference to prejudicial matters, 63 A.L.R.3d 311
(1975)); Douglas v. Lombardino, 693 P.2d 1138, 1147 (Kan. 1985) (citing Reeve
v. McBrearety, 660 P.2d 75, 77 (Kan. App. 1983)); Odom v. Schofield, 480 So.
2d 1217, 1218 (Ala. 1985) (citing Liberty Nat’l Life Ins. Co. v. Beasley, 466
So. 2d 935 (Ala. 1985)); Romanek-Golub & Co. v. Anvan Hotel Corp., 522 N.E.2d
1341, 1347 (Ill. App. 1988); Simpson v. Smith, 771 S.W.2d 368, 371 (Mo. App.
1989) (citing Williams v. Enochs, 742 S.W.2d 165 (Mo. 1987); Anderson v.
Rojanasathit, 714 S.W.2d 894 (Mo. App. 1986)).
15
See, e.g., Harley-Davidson Motor Co. v. Daniel, 260 S.E.2d 20, 22
(Ga. 1979); Davidson v. Beco Corp., 733 P.2d 781, 785 (Idaho App. 1986), rev’d
in part on other grounds, 753 P.2d 1253 (Idaho 1987); Uptain v. Huntington
Lab, Inc., 723 P.2d 1322, 1330-31 (Colo. 1986); Sims v. Gen. Motors Corp., 751
P.2d 357, 362-63 (Wyo. 1988); Waterson v. Gen. Motors Corp., 544 A.2d 357,
362-63 (N.J. 1988); Beil v. Mayer, 789 P.2d 1229, 1232-33 (Mont. 1990); Miller
v. Peter J. Schmitt & Co., 592 A.2d 1324, 1329 (Pa. Super. 1991) (citing
Commonwealth v. Gibson, 526 A.2d 438, 439 (Pa. Super. 1987)).
16
One notable exception is Kentucky Rules of Evidence (K.R.E.) Rule
103; while based on the FRE, K.R.E. Rule 103 has, since taking effect in 1992,
included a separate subsection (d) specifically addressing motions in limine:

(d) Motions in limine. A party may move the court for a
ruling in advance of trial on the admission or exclusion of
evidence. The court may rule on such a motion in advance of
trial or may defer a decision on admissibility until the
evidence is offered at trial. A motion in limine resolved
by order of record is sufficient to preserve error for
appellate review. Nothing in this rule precludes the court
from reconsidering at trial any ruling made on a motion in
limine.

(continued...)

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Many of the states in which amendments were made are those that

had already substantially or completely modeled their rules of

evidence on the FRE. Thus, for example, Pennsylvania Rules of

Evidence (Pa.R.E.) Rule 103(a) was amended in 2001 (effective

January 1, 2002) to add the same language found in the 2000

amendment to FRE Rule 103(a): “Once the court makes a definitive

ruling on the record admitting or excluding evidence, either at

or before trial, a party need not renew an objection or offer of

proof to preserve a claim of error for appeal.”17 Pa. R. Evid.

103(a) & cmt.; see also Blumer v. Ford Motor Co., 20 A.3d 1222,

1232 (Pa. Super. 2011) (citing Pa. R. Evid. 103 cmt.; Trach v.

Fellin, 817 A.2d 1102, 1107 n.3 (Pa. Super. 2003) (en banc))

(“Consistent with the above amendment to Pa.R.E. 103(a), a motion

in limine may preserve an objection for appeal without any need

to renew the objection at trial, but only if the trial court

clearly and definitively rules on the motion.”). Colorado Rules

of Evidence Rule 103(a) was amended in 2002 to add the same

16
(...continued)
Ky. R. Evid. 103(d) (emphasis added).
17
On January 17, 2013, the Pennsylvania Supreme Court issued an
order rescinding the Pennsylvania Rules of Evidence and replacing it with a
restyled version modeled on the nonsubstantive amendments made to the FRE in
2011. See In re: Order Rescinding and Replacing the Pennsylvania Rules of
Evidence, No. 586 (Pa. Jan. 17, 2013); see also supra note 13 (referencing the
2011 FRE restyling). The restyled version took effect on March 18, 2013. As
relevant to this opinion, the language containing the definitive ruling
exception moved from Pa.R.E. Rule 103(a) to Pa.R.E. Rule 103(b) and now
appears in a form identical to the current FRE Rule 103(b), which is quoted
supra Part III.A.1.

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language found in the 2000 amendment to FRE Rule 103(a). See

Colo. R. Evid. 103(a); see also Camp Bird Colo., Inc. v. Bd. of

Cnty. Comm’rs, 215 P.3d 1277, 1289-90 (Colo. App. 2009)

(“However, the mining company filed pretrial motions on these

issues, and the trial court made definitive rulings on the record

prior to trial. Once the trial court makes definitive rulings

either at or before trial, the objecting party need not renew the

objection contemporaneously during trial to preserve a claim of

error on appeal. See CRE 103(a)(2). Thus, the issues were

preserved.”). Vermont Rules of Evidence Rule 103(a) was amended

in 2004 to add the same language from the FRE. See Vt. R. Evid.

103(a) & cmt.; see also State v. Brink, 949 A.2d 1069, 1071-72

(Vt. 2008) (citing Vt. R. Evid. 103 cmt.) (“Under the 2004

amendments, a ‘definitive’ ruling on admissibility obviates the

need for a renewed objection at trial.”); Spooner v. Town of

Topsham, 973 A.2d 1202, 1204 (Vt. 2009) (referencing 2004

amendment but concluding that the Town’s objection was not

preserved for appeal because there was no definitive pretrial

ruling and the Town did not renew its objection at trial). South

Dakota’s version of Rule 103(a), codified at South Dakota

Codified Laws (SDCL) § 19-9-3, was amended in 2006 to add the

same language from the amended FRE Rule 103(a). See S.D.

Codified Laws § 19-9-3; see also In re Estate of Duebendorfer,

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721 N.W.2d 438, 444 n.4 (S.D. 2006) (recognizing that SDCL § 19-

9-3 was amended effective July 1, 2006).

As in the aforementioned states, the HRE is based, in

substantial part, on the FRE. See HRE Rule 102 cmt. (“Except for

Articles III and V, these rules have as their model the Federal

Rules of Evidence[.]”). Moreover, as in the aforementioned

states, the Hawai#i Legislature amended HRE Rule 103(a) in 2006

to include language identical to that found in the 2000 FRE Rule

103(a) amendment: “Once the court makes a definitive ruling on

the record admitting or excluding evidence, either at or before

trial, a party need not renew an objection or offer of proof to

preserve a claim of error for appeal.” See 2006 Haw. Sess. Laws

Act 73, § 1 at 129; Addison M. Bowman, Hawaii Rules of Evidence

Manual, § 103-1[1][B] (2010-2011 ed.) (“The effect [of the 2006

amendment] is to eliminate the need to restate the objection or

the proffer in any instance in which the ruling in limine was

‘definitive.’”); see also HRE Rule 103 cmt. (“This rule is

identical with Fed. R. Evid. 103.”). Besides aligning HRE Rule

103 with the amended FRE Rule 103, it should be noted that the

2006 amendment also served to confirm the case law of this court

and the ICA discussed supra in Part III.A that had already

recognized the definitive ruling exception. See Lussier, 4 Haw.

App. at 393-94, 667 P.2d at 826; Craft, 78 Hawai#i at 295, 893

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P.2d at 146; Page, 80 Hawai#i at 208 n.4, 908 P.2d at 556 n.4;

Ditto, 98 Hawai#i at 130 n.9, 44 P.3d at 281 n.9; Barcai, 98

Hawai#i at 490, 50 P.3d at 966 (Acoba, J., concurring). Thus, as

HRE Rule 103 has not been further amended since 2006, the

definitive ruling exception remains good law and must be applied

when appropriate.18

3. In this case, the trial court made a definitive ruling
on the admissibility of evidence regarding speculation on the
Kobashigawas’ motive in filing suit against the City, thus
preserving the issue for appeal

During the October 5, 2009 pretrial hearing, the

circuit court made its rulings on, inter alia, the Kobashigawas’

Motion in Limine No. 1, seeking exclusion of evidence and

argument concerning speculation on the Kobashigawas’ motive in

filing suit against the City, and No. 4, seeking exclusion of

certain parts of Bailey’s deposition testimony. With regard to

Motion in Limine No. 1, the court first indicated its inclination

to deny the motion and then allowed the parties to make any

further arguments for the record. The following exchange then

took place:
MR. PARK[, counsel for the Kobashigawas]: Well, Your
Honor, I have to admit I’m surprised you would be denying
this because it’s established law that the motives of a

18
Although the HRE has not undergone a systematic styling revision
as the FRE did in 2011 and the Pennsylvania Rules of Evidence did in 2013,
those restylings explicitly made no substantive changes. Thus, although the
definitive ruling exception language of HRE Rule 103(a) and FRE Rule 103(b)
are not currently stylistically identical, they remain substantively
identical.

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party in bringing a lawsuit is not really, you know,
relevant and it is prejudicial, you know, to admit evidence
on that point.
THE COURT: I guess, just so that you can understand
where I’m coming from, Mr. Park, while in concept I do tend
to agree with you, but the fact of the matter is that bias,
interest and motive and credibility of witnesses are always
in play. And essentially the [c]ourt’s standard instruction
5.1 comes to mind where there’s a laundry list of things
that the jurors can consider in terms of evaluating the
weight and credibility of the witnesses’ testimony.

(Emphasis added). When then given the opportunity to speak, the

City stated:
MR. LEWALLEN[, deputy corporation counsel]: Your
Honor, just briefly, I think the complaint states for itself
the evidence they are going to present to the [c]ourt, the
plaintiffs will, as they are seeking monetary damages. It’s
not going to be a secret. And we have also -- by the way,
they are not seeking equitable relief from the [c]ourt or
anything like that. There’s one thing that will be asked
for, and that’s money. That issue is going to be there.

. . .

And once again, it’s going to be out there. And this
issue is going to be there, whether or not someone is going
to harp on it, but it’s going to be a factual issue that’s
presented to the jury and we should be able to address that.

The court ruled on the motion as follows:
THE COURT: Well, to the extent that, you know, from
the standpoint that some of the more traditional arguments
can be made, obviously, in a case seeking money damages,
obviously, it comes up from time to time. Certainly
arguments are made as far as the motivations are concerned.
With that, the [c]ourt will confirm its ruling, will
deny the motion, does intend to issue a cautionary, which I
will provide the parties with copies of what the [c]ourt has
sort of drafted and then we can sort of visit this
sufficiency or propriety of the way those are drafted at a
later point. But basically, the [c]ourt does intend to sort
of limit its consideration, any bias, interest or motive, if
any is shown.
All right. So with that, that dispenses of
plaintiff’s number one.

(Emphases added). With regard to Motion in Limine No. 4, through

which the Kobashigawas sought to exclude certain statements made

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by Bailey in her deposition testimony, the circuit court granted

in part and denied in part after argument by both parties. The

court’s ruling on this motion was sufficiently specific as to

which statements would be admitted and which would not:

“Basically, the only portions that I’m going to sustain and

disallow are those portions that I alluded to. The two portions

that I addressed with Mr. Park will be permitted. And if I was

unclear about that, I apologize.”

A trial court’s ruling on a motion in limine is

definitive when it “leaves no question that the challenged

evidence will or will not be admitted at trial[.]” Quad City

Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 90

(Iowa 2011) (citing State v. Alberts, 722 N.W.2d 402, 406 (Iowa

2006); State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975)).

Further, as we have discussed, when a definitive ruling has been

made, “counsel need not renew its objection to the evidence at

trial to preserve error.” Id. This is because “[i]n such a

situation, the decision on the motion has the effect of [an

evidentiary] ruling.” Id. (citing State v. Tangie, 616 N.W.2d

564, 569 (Iowa 2000)) (first brackets added and second brackets

in original; internal quotation marks omitted). We also note

that “[t]he key to deciding whether the general rule or the

[definitive ruling] exception applies in a given case is

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determining what the trial court purported to do in its ruling.”

Id. (citing Alberts, 722 N.W.2d at 406).

With these principles in mind, we conclude that the

circuit court’s rulings on Motion in Limine No. 1 and Motion in

Limine No. 4 were definitive and therefore that the Kobashigawas’

objections to the admission of the evidence allowed by those

rulings were preserved for appeal. There is no need to expound

further on the definitiveness of the ruling on Motion in Limine

No. 4, as the court specifically ruled that certain statements

from Bailey’s deposition testimony would be admitted at trial and

that certain other statements were excluded. With regard to

Motion in Limine No. 1, the circuit court stated in its ruling

that “bias, interest[,] and motive . . . are always in play.”

Accordingly, the court neither suggested that the introduction of

such evidence would depend on any foundational prerequisites nor

invited the Kobashigawas to renew their objection during trial or

ask the court to reconsider its ruling. In fact, the

definitiveness of the ruling on No. 1 is underlined by the

court’s statement that it had already drafted a cautionary jury

instruction--on its own initiative--on the basis that any

evidence on motive would definitely be admitted once offered by

the City. Given the foregoing, we emphasize that the court’s

ruling on No. 1 was a definitive one because the court “did not

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equivocate or state it would reconsider its ruling at trial.”

Quad City, 804 N.W.2d at 90-91.

We thus contrast the circuit court’s rulings on Motion

in Limine No. 1 and Motion in Limine No. 4 with its ruling on

Motion in Limine No. 2, through which the Kobashigawas had sought

to exclude evidence and argument by the City regarding the number

of pedestrian injuries or deaths at the mid-block crosswalk at

issue in this case; such evidence would support the City’s

argument that William’s death was a single, isolated incident.

While Motion in Limine No. 2 is not at issue on appeal, we take

note of the court’s ruling on that motion as an example of a non-

definitive ruling issued during the same pretrial hearing:
THE COURT: All right. This is the [c]ourt’s ruling:
[c]ourt will respectfully at this point deny the motion and
permit the City, subject to appropriate foundation, to
introduce evidence, if it has this evidence, regarding
indications or lack of indications of other incidents at
this crosswalk. And it may not come down to specific
numbers, but certainly I think more generalized type of, I
guess, inference can be made basically from the lack of
that. It will depend on whether or not you folks are able
to establish that foundation.

(Emphases added). The circuit court did not make any such

reservations in its rulings on No. 1 and No. 4. Accordingly, by

obtaining definitive rulings on these motions, the Kobashigawas

did not waive their objection, as articulated in their motions in

limine, to evidence or argument speculating on their motive for

bringing suit against the City; rather, given that such evidence

and argument would unequivocably be admitted during trial, the

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Kobashigawas were entitled to rely in good faith on the court’s

rulings in formulating their trial strategy. Accordingly, the

objection was preserved, even in the absence of renewed

objections at the time such evidence and argument were presented

by the City during trial.

4. In light of the court’s unequivocal ruling, the
Kobashigawas also did not waive their objection by introducing
the adverse evidence themselves

As a related matter, we note that, under the

circumstances of this case, the introduction of Bailey’s

objected-to deposition testimony by the Kobashigawas themselves

in their case-in-chief also did not constitute a waiver of their

objection to that evidence. Generally, a party cannot allege an

error on appeal premised on evidence introduced into the record

by that party. See, e.g., Carlyle v. Lai, 783 S.W.2d 925, 931

(Mo. App. 1989) (Fenner, J., dissenting) (“There cannot be a

finding of prejudice when the information of which appellants

complain was already placed before the jury by the appellants

themselves.”). However, several appellate courts have concluded

that when a trial court has denied a party’s motion in limine to

exclude evidence likely to be introduced by the opposing party at

trial, the moving party does not then waive its objection to the

adverse evidence by preemptively introducing the evidence itself

in its case-in-chief.

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In Beil v. Mayer, a motor vehicle accident case, Beil

had filed a pretrial motion in limine to exclude evidence of the

amount of settlement agreements attained in lawsuits arising from

two unrelated accidents, one predating and one postdating the

accident at issue. 789 P.2d 1229, 1231 (Mont. 1990). The trial

court denied the motion with respect to the later settlement and

allowed Mayer to introduce evidence of the settlement amount;

following denial of the motion, Beil stipulated to a statement of

facts concerning the settlement amount and the statement was read

to the jury during trial. Id. “Beil also voluntarily referred

to the settlement in his opening argument and through testimony

during his case in chief.” Id. at 1232. The jury found Mayer

not negligent, and the trial court denied Beil’s motion for a new

trial; on appeal, Beil argued that the trial court erred in

admitting the settlement amount on the grounds that it was

irrelevant and prejudicial. Id. at 1231. Mayer argued that the

settlement amount was relevant to the issue of damages and that

Beil did not preserve the issue because he failed to renew his

objection during trial and stipulated to agreed facts about the

settlement. Id. at 1231, 1232-33. The Montana Supreme Court

agreed with Beil, noting that after his motion in limine

regarding the settlement amount was denied,
he attempted to deal with its imminent introduction in the
best way that he could. As a matter of trial tactics, he

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brought up the settlement during his case in chief, so that
he could attempt to minimize its prejudicial impact. He
entered into the stipulation in an effort to prevent
needless disagreement over known facts which were part of
the settlement.

Id. at 1233. That court thus held that because the same evidence

that Beil sought to exclude was then introduced at trial, Beil’s

original objection to the evidence was sufficient to preserve the

issue for appeal. Id.

In O’Bryan v. Hedgespeth, also a motor vehicle accident

case, O’Bryan had filed a pretrial motion in limine to exclude

evidence of collateral source payments he had received; the trial

court noted the objection to the evidence but denied the motion.

892 S.W.2d 571, 573 (Ky. 1995). Relying on the trial court’s

ruling, O’Bryan himself introduced evidence of the amounts and

sources of benefits he had received; although the jury entered a

verdict for O’Bryan, it only awarded him the amount of his out-

of-pocket medical expenses and did not make any award for the

amount representing the collateral source payments. Id. The

Kentucky Supreme Court noted in its opinion that “[O’Bryan]

elected to go forward with the evidence of collateral source

payments in the presentation of [his] case once [his] motion in

limine was overruled, rather than to leave it to the defendant to

present this evidence.” Id. at 574. Although Hedgespeth argued

that the court should not assume she would have introduced the

evidence if O’Bryan did not introduce it himself, the court

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strongly and sharply disagreed: “The likelihood the defendant

would not present this evidence after prevailing against the

motion in limine borders on absurdity.” Id. Accordingly, the

court held that “once a motion in limine to exclude evidence has

been overruled, a party may go forward with adverse evidence to

avoid the appearance of concealment and still ‘preserve error for

appellate review.’” Id. at 575 (quoting Ky. R. Evid. 103(d)).

Most recently, the Florida Supreme Court spoke on this

subject in a case decided to resolve a split in the Florida

district courts of appeal. In Sheffield v. Superior Insurance

Co., also a motor vehicle accident case, Sheffield settled with

the tortfeasor and then filed suit against Superior, her

uninsured motor insurance carrier. 800 So. 2d 197, 199 (Fla.

2001). As in O’Bryan, Sheffield filed a pretrial motion in

limine “seeking to exclude collateral source evidence regarding

both insurance and other benefits provided by her employer.” Id.

After the trial court denied the motion, the parties “stipulated

that Sheffield would have a standing objection to the

introduction of collateral source evidence and would not have to

contemporaneously or spontaneously object during trial in order

to preserve the objection for appeal.”19 Id. Sheffield then

19
Sheffield was decided in 2001 and therefore predated the 2003
amendment to Florida’s version of FRE Rule 103, codified at Fla. Stat. Ann. §
90.104, incorporating the definitive ruling exception. See In re Amendments
(continued...)

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“introduced collateral source evidence in her case-in-chief,

including the fact that she had group medical insurance to defray

some of the costs of treatment.” Id. Also as in O’Bryan, the

jury returned a verdict for Sheffield but less than what she had

sought; the trial court also denied her motion for a new trial on

the issue of damages. Id. On appeal, the First District Court

of Appeal affirmed by a vote of 2-1, concluding that while the

trial court erred in denying Sheffield’s motion in limine, “her

own introduction of such collateral source evidence precludes

reversal for a new trial on that ground.” Id. (quoting Sheffield

v. Superior Ins. Co., 741 So. 2d 533, 534 (Fla. App. 1999))

(brackets and internal quotation marks omitted). Judge Browning

dissented, stating that “because Sheffield was faced with the

trial court’s incorrect ruling, Sheffield had every right to

attempt to defuse the issue and initially present collateral-

source evidence.” Id. at 200 (quoting Sheffield, 741 So. 2d at

540 (Browning, J., dissenting)). On further appeal, the Florida

Supreme Court agreed with the First District majority that the

trial court erred in denying Sheffield’s motion in limine and

19
(...continued)
to the Florida Evidence Code-Section 90.104, 914 So. 2d 940, 941 (Fla. 2005)
(noting the amendment as passed by the Florida Legislature in 2003 and
adopting the amended rule “to the extent that it is procedural”).
Nevertheless, because the parties stipulated that a contemporaneous objection
was unnecessary for purposes of preserving the objection on appeal, the
analysis in Sheffield remains valid under the amended section 90.104.

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allowing evidence of collateral sources; the question thus became

“whether Sheffield’s counsel, by introducing collateral source

evidence in Sheffield’s case-in-chief after the trial court

erroneously denied her motion in limine, waived any objection for

appellate review.” Id. at 200-01. In trying to reconcile the

different approaches taken in different district courts of

appeal, as well as by itself in a prior case, the Florida Supreme

Court agreed with the general principles that a party should not

be penalized for relying in good faith on a trial court’s

incorrect ruling and that introduction of evidence adverse to a

party does not waive that party’s objection to the evidence in

light of the trial court’s previous denial of a motion in limine

to exclude. See id. at 201-02. The court concluded that the

concept of invited error--and thus waiver of any objection--does

not apply where the trial court makes an adverse, unequivocal

evidentiary ruling that then forces a party to preemptively

introduce the evidence as a matter of trial strategy to minimize

its prejudicial impact. Id. at 202; see also Chenoweth v. Kemp,

396 So. 2d 1122, 1127 (Fla. 1981) (Sundberg, C.J., dissenting)

(quoted in Sheffield, 800 So. 2d at 202) (“In light of this

ruling, appellant had every right, and indeed had no choice, but

to comment upon the evidence in an attempt to mitigate the damage

soon to be done by the erroneous inclusion of the written

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finding. Trial court error, not tactics, dictated appellant’s

actions.”). In quashing the First District’s judgment and

remanding the case for a new trial, the court thus held: “once a

trial court makes an unequivocal ruling admitting evidence over a

movant’s motion in limine, the movant’s subsequent introduction

of that evidence does not constitute a waiver of the error for

appellate review.” Id. at 203.

In this case, the circuit court made an unequivocal

ruling that evidence adverse to the Kobashigawas would be

admitted at trial. Faced with the inevitability that the City

would introduce Bailey’s deposition testimony to support its

theory of the Kobashigawas’ motive for filing suit, the

Kobashigawas introduced the testimony themselves as a matter of

trial strategy, aiming to minimize the prejudice that would

result from admission of the evidence. By introducing the

evidence themselves, the Kobashigawas sought to avoid putting

themselves in a position where they would have to object in front

of the jury after its introduction and each reference to it

thereafter by the City. The Kobashigawas made these very

arguments to the ICA, and although the ICA did not comment on

them in its opinion, we agree with the Kobashigawas and the

courts cited supra that have addressed this issue. In

particular, we adopt the holding from Sheffield that once a trial

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court makes an unequivocal ruling admitting evidence over a

party’s motion in limine to exclude, that party’s subsequent

introduction of the evidence does not constitute a waiver of its

objection for appellate review.

For all of the foregoing reasons, the Kobashigawas

preserved their objection to admission of any evidence and

argument speculating on their motive for filing suit despite the

denial of their pretrial motions in limine and their subsequent

self-introduction of the adverse evidence. The ICA, therefore,

did not need to resort to plain error review to reach the merits

of the error alleged by the Kobashigawas on appeal. We now turn

to the merits.

C. The ICA did not err in concluding that the errors occurring
during trial warranted remanding the case for a new trial

1. The ICA did not err in holding that the circuit court’s
cautionary jury instruction was an erroneous statement of the law

In its application to this court, the City first argues

that the ICA gravely erred in concluding that the circuit court’s

cautionary jury instruction on bias, interest, or motive

constituted an erroneous statement of the law because, according

to HRE Rule 609.1, evidence pertaining to a witness’s bias,

interest, or motive is always admissible.

HRE Rule 609.1 states, in full:
(a) General rule. The credibility of a witness may be
attacked by evidence of bias, interest, or motive.

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(b) Extrinsic evidence of bias, interest, or motive.
Extrinsic evidence of a witness’ bias, interest, or motive
is not admissible unless, on cross-examination, the matter
is brought to the attention of the witness and the witness
is afforded an opportunity to explain or deny the matter.

This rule is often invoked in the context of criminal cases; as

this court has stated, “[b]ias, interest, or motive is always

relevant under HRE Rule 609.1. So long as a proper foundation is

laid, bias can be raised at any time by the witness’s testimony

or other evidence.” State v. Estrada, 69 Haw. 204, 220, 738 P.2d

812, 823 (1987) (citing State v. Murphy, 59 Haw. 1, 575 P.2d 448

(1978)). Of course, the rule also applies to witnesses in civil

cases: for example, the ICA cited to the rule in Coyle v.

Compton, 85 Hawai#i 197, 210, 940 P.2d 404, 417 (App. 1997), and

Cenal v. Ragunton, 106 Hawai#i 298, 304, 104 P.3d 336, 342 (App.

2004). (In both of those cases, however, the evidence that would

have been used to impeach the witnesses was ultimately excluded

under HRE Rule 40320 as being more prejudicial than probative.)

The circuit court was therefore correct only insofar as

it stated, by quoting Rule 609.1, that the credibility of a

witness may be attacked by evidence of bias, interest, or motive,

and that such evidence pertaining to a witness’s credibility is

always relevant and admissible at trial. The circuit court

20
HRE Rule 403 provides: “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”

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erred, however, in ruling that such evidence could be used by the

jury in considering the Kobashigawas’ motives as plaintiffs in

filing the present lawsuit.

As the Kobashigawas argued and the ICA recognized, it

is a long-standing principle of law that a plaintiff’s motive in

filing a lawsuit is otherwise immaterial to resolving the merits

of the dispute. Kobashigawa, 126 Hawai#i at 65, 266 P.3d at 473;

see also Dickerman v. N. Trust Co., 176 U.S. 181, 190 (1900) (“If

the law concerned itself with the motives of parties new

complications would be introduced into suits which might

seriously obscure their real merits.”); Carter v. Ah So, 12 Haw.

291, 302 (1899) (“So far as the law is concerned, if the

plaintiff has made out a case on the facts, it is immaterial what

[the] motive was.”); Lucas v. American-Hawaiian Eng’g & Constr.

Co., 16 Haw. 80, 85-86 (1904) (“[T]he weight of authority is that

the motives of a taxpayer in bringing a suit can not be inquired

into if he has shown that he has the other qualifications to

sue. . . . That motives can not be inquired into is well

settled.”); Karim v. Gunn, 999 A.2d 888, 890 (D.C. 2010)

(internal quotation marks and citation omitted) (“The motive of a

party in bringing an action generally is immaterial to the

question whether the action may be maintained.”); Somers v. AAA

Temp. Servs., 284 N.E.2d 462, 465 (Ill. App. 1972) (“It is

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generally accepted that where the plaintiff asserts a valid cause

of action, [the plaintiff’s] motive in bringing the action is

immaterial.”).

The City argues to this court that the cases cited by

the ICA and the Kobashigawas, and mentioned immediately supra,

are inapposite because they do not address the issue of “whether

evidence pertaining to a plaintiff’s motive for filing suit may

be properly considered for the purposes of assessing a witness’

credibility.” In framing the issue in such a manner, however, it

appears that the City confuses, as it also did in the trial court

and before the ICA, motive evidence permissible under Rule 609.1

to impeach the credibility of a witness with evidence of the

plaintiff’s motive for filing suit, which, as discussed, is

irrelevant and thus inadmissible. Under Rule 609.1, “[t]he

credibility of a witness may be attacked by evidence of bias,

interest, or motive” of that witness. A plain reading of the

rule does not suggest that testimony of a witness, even a

disinterested one such as Bailey here, may somehow be used to

suggest that the Kobashigawas had an improper motive in filing

suit. Looking beyond the rule, there is also no other authority

for the proposition that, pursuant to Rule 609.1, the testimony

of a witness may be used to question the bias, interest, or

motive of the plaintiff bringing the suit.

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Thus, based on well-established and long-standing

precedent, a plaintiff’s motive in filing a lawsuit is irrelevant

provided that the plaintiff has established a valid cause of

action, and we agree with the ICA that the circuit court erred

here in instructing the jury to consider certain evidence for

that purpose even though the instruction was given as a

cautionary, limiting one.

2. The ICA did not err in concluding that the circuit
court erred in allowing the City to comment on motive during its
closing argument

The City also argues in its application that the ICA

erred by concluding that the circuit court erred in allowing the

City to comment on the Kobashigawas’ motive during its closing

argument. Rather, the City contends that nothing in its closing

argument was improper because it simply commented on evidence

that had been properly admitted by the circuit court during

trial. As quoted supra in Part I.B, the City made two separate

references in its closing argument to Bailey’s testimony and the

issue of the Kobashigawas’ monetary motive in filing suit against

the City. Because the Kobashigawas’ motive in filing suit was

never relevant to the City’s liability under a negligence theory,

the City should not have been allowed to reference it, in closing

or at any other time. As we have thoroughly discussed, the

circuit court’s ruling to admit evidence and allow argument on

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motive was in error, and its cautionary instruction given to the

jury contained an erroneous statement of the law. As the ICA

noted, “erroneous instructions are presumptively harmful and are

a ground for reversal unless it affirmatively appears from the

record as a whole that the error was not prejudicial.”

Kobashigawa, 126 Hawai#i at 66, 266 P.3d at 474 (quoting Nelson,

97 Hawai#i at 386, 38 P.3d at 105) (internal quotation marks and

brackets omitted). In examining the record as a whole, including

the motions in limine, the trial proceedings, the erroneous

instruction, and the City’s closing argument, it does appear that

the error was prejudicial to the Kobashigawas, and we agree with

the following conclusion in the ICA’s opinion:
Because an improper jury instruction requires the error to
be read in light of the record as a whole and [the] City’s
closing argument added to the harm caused by the circuit
court’s erroneous jury instruction, the circuit court erred
in allowing [the] City to comment in its closing argument on
the Kobashigawas’ motives.

Id. at 66-67, 266 P.3d at 474-75; see also Kakligian v. Henry

Ford Hosp., 210 N.W.2d 463, 465 (Mich. App. 1973) (quoted in

Kobashigawa, 126 Hawai#i at 66, 266 P.3d at 474) (noting that “in

conjunction with the lower court’s failure to properly instruct

the jury, a defense counsel’s reference to the plaintiff’s motive

in bringing suit was grounds for a new trial”).

Thus, the ICA did not err in concluding that the

circuit court erred in allowing the City to comment during its

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closing argument about the Kobashigawas’ motive for filing suit.

Because the closing argument added to and was intertwined with

the harm introduced by the court’s erroneous jury instruction on

motive, we cannot say that the ICA erred in vacating the circuit

court’s judgment on this additional ground.

IV. CONCLUSION

Accordingly, subject to the foregoing discussion

modifying the ICA’s December 2, 2011 published opinion, we affirm

the ICA’s December 22, 2011 judgment vacating the Judgment

Pursuant to Special Verdict filed in circuit court on March 25,

2010 and remanding this case for a new trial.

Traci Rei Morita, for /s/ Mark E. Recktenwald
petitioner
/s/ Paula A. Nakayama
Arthur Y. Park, Patricia Kim
Park, and John C. McLaren /s/ Simeon R. Acoba, Jr.
for respondents
/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

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