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Electronically Filed
Supreme Court
SCWC-30082
25-JAN-2013
10:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
RICK RALSTON, Respondent/Plaintiff-Appellant,
vs.
ERROL Y.W. YIM, D.D.S., Petitioner/Defendant-Appellee.
SCWC-30082
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30082; CIV. NO. 08-1-0934)
RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ.,
AND CIRCUIT JUDGE AHN, IN PLACE OF POLLACK, J., RECUSED
JANUARY 25, 2013
OPINION OF THE COURT BY RECKTENWALD, C.J.
This appeal requires us to consider the evidentiary
burden that must be satisfied before summary judgment can be
granted. Plaintiff Rick Ralston sued his dentist, Dr. Errol Y.W.
Yim, claiming that Dr. Yim had negligently provided him with
orthodontic care to correct overcrowding in his lower front
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teeth.
Dr. Yim moved for summary judgment. At the first
hearing on the motion, the circuit court sua sponte ordered a
continuance pursuant to Hawai#i Rules of Civil Procedure (HRCP)
Rule 56(f) to allow Ralston to submit an expert’s affidavit
establishing that Dr. Yim failed to meet the applicable standard
of care. Prior to the next hearing, Ralston’s counsel submitted
an unauthenticated report by Dr. Harry Aronowitz, which stated
that Dr. Yim did not meet the standard of care. Dr. Yim filed
his reply and asserted that because Ralston had failed to provide
an expert affidavit, as required under HRCP Rule 56, summary
judgment should be granted.
On the day before the continued hearing, Ralston’s
counsel submitted a faxed copy of an affidavit from Dr.
Aronowitz. At the continued hearing, Dr. Yim argued that the
affidavit should be stricken because it was untimely, and further
asserted that it was inadmissible because it was a faxed copy and
not an original. The circuit court agreed with Dr. Yim, and
stated that it had already given Ralston an opportunity to
continue the proceeding so that he could obtain a proper
affidavit. The circuit court struck Ralston’s faxed affidavit,
denied Ralston’s further request for a HRCP Rule 56(f)
continuance, and granted summary judgment in favor of Dr. Yim.1
1
The Honorable Eden Elizabeth Hifo presided.
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Ralston appealed, arguing, inter alia, that the circuit
court erred in granting summary judgment in favor of Dr. Yim
because it shifted the burden of proof to Ralston by requiring
that he submit an expert affidavit, even though Dr. Yim had not
come forward with evidence that he had met the standard of care.
The Intermediate Court of Appeals determined that Dr. Yim failed
to satisfy his initial burden as the summary judgment movant.
Ralston v. Yim, 128 Hawai#i 42, 45-51, 282 P.3d 584, 587-93 (App.
2012). The ICA also noted that Ralston did not have “adequate
time” to conduct discovery, and that Ralston’s case was
accordingly distinguishable from the leading federal case of
Celotex Corporation v. Catrett, 477 U.S. 317 (1986) (noting that
“the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial”). Ralston, 128 Hawai#i at 50-51, 282 P.3d at 592-93.
Thus, the ICA vacated the circuit court’s final judgment and
remanded the case for further proceedings. Id. at 52, 282 P.3d
at 594.
In his application, Dr. Yim raises the following
question:
Was it grave error for the ICA to excuse [Ralston’s]
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failure to move for a [HRCP] Rule 56(f)[2] continuance
and failure to authenticate exhibits containing expert
opinions, by requiring Dr. Yim, in a summary judgment
motion, to come forward with affirmative evidence
establishing the standard of care and prove he did not
violate said standard?
We hold that the ICA did not err in vacating the
circuit court’s judgment. As this court has previously
articulated, a summary judgment movant may satisfy his or her
initial burden of production by either (1) producing admissible
evidence to show there was no genuine issue of material fact, or
(2) showing that the non-moving party cannot carry his or her
burden of proof at trial. French v. Hawaii Pizza Hut, Inc., 105
Hawai#i 462, 470-72, 99 P.3d 1046, 1054-56 (2004). However, as
the ICA pointed out, the movant generally cannot support its
initial burden of production by pointing solely to the non-moving
party’s lack of evidence if discovery has not concluded.
However, the ICA’s discussion of the United States
Supreme Court’s decision in Celotex could be read to suggest that
summary judgment may be appropriate prior to a discovery deadline
if the non-movant has had “adequate time to conduct discovery and
2
HRCP Rule 56 governs summary judgment. HRCP Rule 56(f) (2009)
provides:
When affidavits are unavailable. Should it
appear from the affidavits of a party opposing the
motion that the party cannot for reasons stated
present by affidavit facts essential to justify the
party’s opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other
order as is just.
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to identify experts.” Ralston, 128 Hawai#i at 51 n.11, 282 P.3d
at 593 n.11. Such a rule would be inconsistent with this court’s
case law and the rules governing summary judgment. First,
granting summary judgment on the ground that the non-movant
cannot presently satisfy his or her burden of proof would be
inconsistent with French, which requires a showing that the non-
movant cannot carry his or her burden of proof at trial. Second,
the procedure for obtaining a continuance set forth in HRCP Rule
56(f) is the means by which a non-moving party can assure that he
or she has had “adequate time” to conduct discovery before the
motion is decided. The ICA’s suggestion that “adequate time” is
a substantive requirement for the granting of a motion for
summary judgment could cause confusion as to the rights and
obligations of the parties under HRCP Rule 56(f). Thus, we
conclude that HRCP Rule 56(f) is the proper procedure to request
and obtain additional time to respond to a motion for summary
judgment that is filed prior to the discovery deadline.
Nevertheless, we conclude that the circuit court erred
in granting summary judgment since Dr. Yim did not satisfy his
initial burden of production. Therefore, the judgment of the ICA
is affirmed.
I. Background
The following factual background is taken from the
record on appeal.
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A. Circuit Court Proceedings
On May 9, 2008, Ralston filed a civil complaint against
Dr. Yim in the circuit court. He subsequently filed a First
Amended Complaint on May 13, 2008, and asserted:
. . . .
6. On or about November 15, 2005, sixty-four year
old [] Ralston sought orthodontic dental care
with [Dr.] Yim, DDS to reduce crowding in
[Ralston’s] lower front teeth.
7. [Dr.] Yim’s treatment plan included extracting
[Ralston’s] lower lateral tooth (front tooth
#23) and using Invisalign aligners to move the
three remaining lower front teeth (front teeth
#24, 25, 26) to close the gap. As a result of
[Dr.] Yim’s negligent dental treatment,
[Ralston] lost the remaining three front teeth.
8. At no time did [Dr.] Yim advised [sic] [Ralston]
of the risk that [Ralston] could lose his three
lower front teeth.
9. [Dr.] Yim failed to advise [Ralston] of other
treatment alternatives and their respective
risks and advantages in order to enable
[Ralston] an informed decision. [sic]
10. As a result of [Dr.] Yim’s aforementioned
negligence, including dental treatment that fell
below the standard of care and failure to obtain
[Ralston’s] informed consent, [Ralston] has
suffered irreparable injury and harm from the
loss of his four natural front teeth.
11. The negligence of [Dr.] Yim was and is a legal
cause and/or substantial factor in causing
[Ralston’s] injuries and damages.
. . . .
Dr. Yim filed his answer denying the allegations
against him and asserting multiple defenses.
On December 16, 2008, Ralston filed a pretrial
statement, which stated, “[a] dental expert will be designated
upon availability.”
On April 1, 2009, the circuit court issued a Trial
Setting Status Conference Order, which set trial for
September 27, 2010. The Order set the deadline for completion of
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discovery as July 27, 2010, pursuant to Rules of the Circuit
Court of the State of Hawai#i (RCCH) Rule 12(r).3 The deadline
for the exchange of experts’ reports was left blank in the Order.
The deadline for filing pretrial motions requesting entry of
judgment or dismissal of any claim was set for August 6, 2010,
pursuant to RCCH Rule 7(f).4
1. Motion for Summary Judgment
On April 22, 2009, Dr. Yim filed a Motion to Dismiss5
and/or Motion for Summary Judgment (motion for summary judgment).
In his memorandum in support of the motion, Dr. Yim argued:
Hawaii law is clear that in this dental
malpractice action, [Ralston] bears the burden of
proof and moreover must prove any alleged breach of
the standards of dental care through competent expert
testimony. Moreover, [Ralston] must establish the
materiality of any allegedly non-disclosed risk of
treatment through competent expert testimony to
establish the required elements of an informed consent
claim.
Here, despite informal requests and
interrogatories directed at such experts and the
opinions to be offered against Dr. Yim, [Ralston] has
disclosed neither the identity of any experts nor the
substance of any opinions to be offered against Dr.
Yim. Consequently, Dr. Yim is entitled to summary
judgment in his favor and against [Ralston] based on
well-settled Hawaii law.
3
RCCH Rule 12(r) (2005) provides, “Discovery shall be cut off 60
days before the assigned trial date.”
4
RCCH Rule 7(f) (2005) provides, “Unless otherwise ordered for good
cause shown, all pretrial motions that request entry of judgment or dismissal
of any claim shall be filed not later than 50 days prior to the assigned trial
date.”
5
Dr. Yim asserted that the lawsuit should be dismissed because the
circuit court lacked subject matter jurisdiction over the claim. Dr. Yim
argued that he was a “health care provider” within the meaning of HRS § 671-1,
and as such, Ralston was required to initially submit the claim against him to
the Medical Claims Conciliation Panel, pursuant to HRS § 671-12. Ralston
expressly abandons this theory on appeal.
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Attached are [Ralston’s] responses to Dr. Yim’s
two sets of interrogatories, in which absolutely no
information is disclosed as to any expert or
substantive expert opinion. . . .
Dr. Yim respectfully submits that as [Ralston]
has filed his pretrial statement of readiness and has
proceeded to schedule a trial date, it is not
premature to hold [Ralston] to his proof. Given the
absence of admissible expert testimony to prove any
alleged breach of the standard of care, or to prove
the materiality of any allegedly undisclosed risk of
treatment, Dr. Yim submits he is entitled to summary
judgment in his favor.
Dr. Yim attached copies of Ralston’s answers to his
interrogatories. Attached as exhibit A was Ralston’s December 8,
2008 response to Dr. Yim’s November 3, 2008 First Interrogatories
to Plaintiff, which asked for each person whom Ralston expected
to call as an expert witness at trial and the substance of their
testimony. In relevant part, Ralston responded that an “[e]xpert
report will be provided upon availability[.]” Attached as
exhibit B was Ralston’s April 13, 2009 answers to Dr. Yim’s
March 12, 2009 Second Interrogatories to Plaintiff. In response
to Dr. Yim’s interrogatory regarding any evidence, including
expert opinion testimony, that Ralston may rely on to prove the
materiality of risks or complications associated with the
Invasalign treatment, Ralston stated, “I will defer to the
expert’s opinion.”
Ralston filed a memorandum in opposition to Dr. Yim’s
motion for summary judgment. Ralston argued that,
[d]iscovery is ongoing and the [Court Annexed
Arbitration Program (CAAP)] deadline for the parties
to exchange expert reports is not until May 22, 2009
and [Ralston] will comply with this deadline. [Dr.
Yim] has not met his burden of showing that no genuine
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issue of material facts [sic] exists whether [Dr.
Yim’s] orthodontic care was below the accepted
standard of care and/or that [Ralston’s] informed
consent was duly obtained.
(Emphasis added).
Dr. Yim filed a reply, and again argued that, although
the case was pending for a year, Ralston failed to proffer any
admissible evidence that Dr. Yim violated the standard of care,
and accordingly, failed to establish a genuine issue of material
fact.
The circuit court held a hearing on Dr. Yim’s motion on
May 13, 2009, and addressed the issue of Ralston’s lack of an
expert’s report. The following discussion occurred:
[Court]: But may I ask you this, [Ralston’s
counsel]: Isn’t it true that you said that you –- the
time hasn’t yet come for you to name an expert?
[Counsel for Ralston]: Yes, Your Honor. The deadline
for the CAAP exchange of reports is May 22nd. And we
had this discussion previously. I explained to [Dr.
Yim’s counsel] that we’re going to comply with that
deadline. And we didn’t want to have to do two
reports. Because he’s taking depositions of all the
treating dentists; and I wanted to have those
transcripts to submit to our expert so he can
formulate his final opinions and I didn’t want to do
two reports, to save money, and he understood that.
You know, we ask that the [c]ourt give deference to
the CAAP arbitration deadlines.
[Court]: Well, actually, I’m not going to
. . . because I think they’re two separate tracks and
it would not be appropriate for me to do that. But
I’m converting what you’re saying into a [HRCP] Rule
56(f) request for a continuance until those deadlines
have passed and until you get your expert -– or
proposed expert, one or more, to review those
transcripts.
. . . .
[Counsel for Dr. Yim]: [I]n fact, the expert report
disclosure deadline was set by the CAAP arbitrator
with the explicit statement by her that it was -– she
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was anticipating the potential that would be the
evidence presented at the hearing. We would submit
that there are interrogatories, discovery outstanding,
long since, that have not been answered. We’re not
asking for a report. We put Plaintiffs to their proof
on a motion for summary judgment. I would also submit
that a [HRCP] Rule 56(f) request in this circumstance
is arguably inappropriate given that, in fact, she is
talking about an expert witness that she -– over who
which [sic] she has control and who could have
submitted a declaration or an affidavit or otherwise
made some sort of showing on this motion. . . .
[Court]: Okay. But now I’d like to respond to that
as follows: The fact that Interrogatories, expert
Interrogatories – which are common practice, which is
fine that you propounded – haven’t been answered, as
to that you can bring a motion to compel. But beyond
that, as to the idea that the time has passed for
naming an expert, I have had a different case, it was
a medical malpractice, where the plaintiffs therein
had not provided any expert opinion; the Motion for
Summary Judgment was brought; the time for such an
expert opinion had passed; and knowing that, the
plaintiffs’ attorney did not put in an expert opinion
on the motion for summary judgment, which they could
have done to defeat the motion, but responded only
that they were going to ask for a request to extend
the deadline for final naming, which they hadn’t done,
so I granted the motion. But in this case, not only
has the date not passed, and not only has there not
been a motion to compel the answers to
interrogatories, but Plaintiff has said they’re going
to get that, and they want to use the transcripts of
the treating physicians to present to the doctor that
they’re going to use. So under those circumstances, I
think I would be very remiss to grant a summary
judgment because they don’t yet have that opinion.
. . . .
(Discussion off the record.)
Back on the record. By agreement of counsel, inasmuch
as the expert report that Plaintiffs are compelled to
provide under the CAAP arbitration discovery deadline
is due, I take it to be hand-delivered to [Dr. Yim’s
counsel] on May 22nd. Is that right?
[Counsel for Ralston]: Yes.
[Court]: Then, by agreement, any supplemental to
this motion, which we’re treating as summary judgment
for lack of an expert report, is due May 27, 2009.
And [Dr. Yim’s counsel] may either file a . . .
supplemental reply on June 3rd if he finds that he
didn’t get that report or that it doesn’t meet the
requirements of [HRCP] Rule 56, or should he so
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desire, withdraw that part of this motion because he
did receive the report. And in any event, we’ll have
a supplemental hearing on that part of the [HRCP] Rule
56 motion[.]
The circuit court continued the hearing on the motion
for summary judgment until June 17, 2009.
On May 20, 2009, Ralston filed a supplemental
memorandum in opposition to Dr. Yim’s motion for summary
judgment. Attached to his supplemental memorandum was the
declaration of his counsel, stating that attached thereto as
exhibits were “true and correct copies” of an expert’s report and
the expert’s curriculum vitae. Attached as exhibit A was a
report submitted by Dr. Harry I. Aronowitz (Dr. Aronowitz
report), in which Dr. Aronowitz concluded that Dr. Yim’s
treatment was beneath the standard of care and caused the loss of
Ralston’s lower incisors.
Dr. Yim filed his supplemental reply in support of his
motion for summary judgment on June 3, 2009. Citing Eddins v.
Morrison, 105 Hawai#i 376, 378, 98 P.3d 247, 249 (App. 2004),6
Dr. Yim argued that Dr. Aronowitz’s report was inadmissible
hearsay because it was “not contained in affidavits or otherwise
made under oath or penalty of perjury[.]” Accordingly, Dr. Yim
asserted that the circuit court should grant summary judgment in
his favor on all claims. Alternatively, Dr. Yim contended that
6
In Eddins, the ICA determined, “Because Eddins did not present his
rebutting medical testimony by affidavit, or otherwise as would be admissible
in evidence, Eddins failed to carry his burden, and Dr. Morrison was entitled
to summary judgment as a matter of law.” Id. (citations omitted).
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“Dr. Aronowitz’s report would put in issue only those alleged
breaches of the standard of care as to which Dr. Aronowitz has
opined.” Dr. Yim asserted that Ralston failed to articulate “any
viable theory of alleged negligent failure to obtain informed
consent to treatment, and similarly failed to establish by expert
evidence the materiality of any alleged undisclosed risk (which
came to pass).” Accordingly, Dr. Yim argued that the circuit
court should grant summary judgment in his favor on counts
relating to informed consent, and limit the issues in dispute to
those matters contained in Dr. Aronowitz’s report.
On June 16, 2009, Ralston filed a supplemental exhibit
in support of his memorandum in opposition to Dr. Yim’s motion.
Appended to Ralston’s supplemental exhibit in support of his
memorandum in opposition was a declaration of Ralston’s counsel.
Ralston’s counsel stated that attached to her declaration, as
Exhibit C, was a “true and correct copy of the Affidavit of Harry
Aronowitz, DMD, dated June 16, 2009.” Exhibit C was a facsimile
copy of an affidavit by Dr. Aronowitz, signed and dated June 16,
2009 before a notary public, in which Dr. Aronowitz stated, “Dr.
Yim’s treatment of Mr. Ralston was below the standard of care and
this treatment resulted in the loss of Mr. Ralston’s lower
incisors.”
At the continued hearing on June 17, 2009, Dr. Yim
orally moved for the court to strike Dr. Aronowitz’s affidavit
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because Ralston’s submission violated RCCH Rule 7(b),7 inasmuch
as it was filed less than three days before the hearing. Dr. Yim
also noted that the affidavit was still inadmissible because it
was a facsimile copy authenticated by Ralston’s counsel. Ralston
argued that he presented evidence of a medical opinion and that
the circuit court should overlook the “technicality” that the
affidavit was faxed and give him “leniency in terms of accepting
that supplemental [exhibit.]” Dr. Yim asserted that Ralston was
on notice from June 3, 2009, when Dr. Yim submitted his
supplemental reply, that Dr. Aronowitz’s report was inadmissible.
The circuit court stated:
. . . I agree with [Dr. Yim’s counsel] that the court
did bend over backwards by construing the
representations about not having an opinion because
[Ralston’s counsel] thought that the CAAP track would
trump, more or less, the regular requirements of the
rules of civil procedure when faced with a motion for
summary judgment. And now she knows it doesn’t, and
I’m sure that will be a lesson well-learned.
But be that as it may, it’s also true that when
we got the supplemental . . . [Eddins] makes it clear
that an attorney cannot be the one, by declaration or
otherwise, to authenticate the doctor’s opinion. That
under [HRCP] Rule 56 there needed to be at least a
declaration of the doctor authenticating that those
opinions contained in his report are his. And that’s
what was attempted to be cured with the lately filed
supplemental.
In any event, I don’t think I’m at liberty to
bend over backwards again and, therefore, the motion
to strike on the basis made is granted, therefore, the
motion for summary judgment is granted.
Ralston then stated, “Your Honor, may I ask for one
last –-[,]” to which the circuit court responded, “56F request
7
RCCH Rule 7(b) provides in relevant part: “No party may file any
papers less than 3 days before the date set for the hearing unless otherwise
ordered by the court.”
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for continuance is denied.”
On July 14, 2009, the circuit court entered an order
denying Dr. Yim’s motion to dismiss, granting Dr. Yim’s oral
motion to strike Dr. Aronowitz’s faxed affidavit pursuant to RCCH
Rule 7(b), and granting Dr. Yim’s motion for summary judgment.
2. Motion for Reconsideration
Ralston subsequently filed a motion for reconsideration
of the circuit court’s order granting Dr. Yim’s motion for
summary judgment. Ralston argued, inter alia, that the circuit
court’s order granting summary judgment was inconsistent with
this court’s decision in French because Dr. Yim, as the movant,
had the initial burden of producing admissible evidence that
there was no genuine issue of material fact. Ralston argued
that, under French, “general allegations by [Dr. Yim] that no
genuine issue of material fact existed [are] not sufficient” to
meet the movant’s burden. Ralston pointed out that Dr. Yim “did
not offer any defense expert opinion and did not include any
admissible evidence negating any element of [Ralston’s] claims or
that [Dr. Yim’s] dental treatment of [Ralston] did not fall below
the standard of care.” Ralston also argued that granting summary
judgment would result in a “discovery windfall and significant
litigation advantage” to defendants inasmuch as a defendant could
file for summary judgment at the beginning of every case because
they have “nothing to lose and everything to gain[.]” In
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addition, Ralston contended that there was no prejudice to Dr.
Yim in this case because he was given notice of Dr. Aronowitz’s
report prior to the hearing. Attached to Ralston’s motion for
reconsideration was the original, signed affidavit of Dr.
Aronowitz, dated June 16, 2009.
Dr. Yim filed an opposition to Ralston’s motion. Dr.
Yim argued that Ralston “attempts to relitigate old matters and
makes arguments previous raised (or which certainly could and
should have been made) during the earlier proceedings.” Dr. Yim
further argued that Ralston “already had ‘two bites of the
apple,’ and [Ralston] failed to take the opportunity - afforded
to him sua sponte by the [c]ourt, as [Ralston] himself admits -
to timely and substantively oppose Dr. Yim’s motion.” In
addition, Dr. Yim asserted that Ralston’s reliance on French was
misplaced because French “did not involve a legal duty for which
breach must be proven only through expert evidence[.]”
Ralston filed a reply, in which he asserted that under
HRCP Rule 60(b),8 the circuit court should exercise its
discretion to grant relief to Ralston.
On August 19, 2009, the circuit court filed its order
denying Ralston’s motion for reconsideration.
8
HRCP Rule 60(b) provides courts with discretion to grant relief
from judgments or orders in specific circumstances.
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3. Motion to Tax Costs
On September 4, 2009, Dr. Yim filed a motion to tax
costs against Ralston in the amount of $6,742.22, arguing that he
was entitled to costs as the prevailing party, pursuant to HRCP
Rule 54(d)(1)9 and HRS § 607-9.10 On September 21, 2009, Ralston
filed a memorandum in opposition to Dr. Yim’s motion to tax costs
and argued that the motion should be denied or alternatively
limited to amounts reasonable under the circumstances. On
October 9, 2009, the circuit court filed its order granting in
part and denying in part Dr. Yim’s motion to tax costs, and
awarding costs in the amount of $3,878.36.
9
HRCP Rule 54(d)(1) provides:
Except when express provision therefor is made either
in a statute or in these rules, costs shall be allowed
as of course to the prevailing party unless the court
otherwise directs; but costs against the State or a
county, or an officer or agency of the State or a
county, shall be imposed only to the extent permitted
by law. Costs may be taxed by the clerk on 48 hours’
notice. On motion served within 5 days thereafter,
the action of the clerk may be reviewed by the court.
10
HRS § 607-9 provides:
No other costs of court shall be charged in any court
in addition to those prescribed in this chapter in any
suit, action, or other proceeding, except as otherwise
provided by law.
All actual disbursements, including but not limited
to, intrastate travel expenses for witnesses and
counsel, expenses for deposition transcript originals
and copies, and other incidental expenses, including
copying costs, intrastate long distance telephone
charges, and postage, sworn to by an attorney or a
party, and deemed reasonable by the court, may be
allowed in taxation of costs. In determining whether
and what costs should be taxed, the court may consider
the equities of the situation.
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On October 9, 2009, the circuit court also entered its
Final Judgment in favor of Dr. Yim and against Ralston on all
claims.
B. ICA Appeal
On appeal, Ralston raised three points of error:
1. By finding that [Ralston] did not have
admissible expert evidence and granting [Dr.
Yim’s motion for summary judgment], the trial
court erred in shifting the burden of proof to
the non-moving party, [Ralston], without
requiring that [Dr. Yim], as the movant, first
satisfy his burden of proof under the summary
judgment standard, namely, that there was no
breach of the standard of care or that no
genuine issue of material fact exists with
respect to the essential elements of [Ralston’s]
claims.
2. The trial court erred when it failed to find any
triable issues in the submissions by the
parties, including with respect to the issue of
informed consent.
3. The trial court erred when it granted costs to
[Dr. Yim] because [Dr. Yim] should not have
prevailed in his motion for summary judgment.
Ralston argued that Dr. Yim bore the initial burden of
proof under the summary judgment standard.11 Under this
standard, Ralston argued, Dr. Yim was required to (1) “show[]
through affidavit, deposition, or other evidentiary materials,
that there is no genuine issue of material fact[,]” or (2) show
that Ralston would be unable “to carry his burden at trial.”
Ralston asserted that Dr. Yim (1) failed to submit admissible
evidence that Dr. Yim’s dental treatment met the standard of
care, and (2) provided only “general allegations” that Ralston
11
Although Ralston asserts that Dr. Yim failed to meet his burden of
proof, the substance of his argument appears to be that Dr. Yim did not meet
his burden of production.
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could not carry his burden at trial. Accordingly, Ralston
argued, summary judgment was not appropriate. Ralston also
argued that allowing Dr. Yim to prevail under these circumstances
would encourage defendants to “file for summary judgment early in
every case, even before sufficient discovery could be done[.]”
In addition, Ralston argued that the circuit court
erred in failing to find any triable issues in the submissions of
the parties. Specifically, Ralston argued that the circuit court
should not have disregarded Dr. Aronowitz’s report “based
entirely upon a technicality as to the form and timing of the
submission,” because the substance of the report rebutted Dr.
Yim’s argument that Ralston would be unable to prevail at trial.
Ralston also argued that summary judgment was inappropriate on
the issue of informed consent based on Ralston’s answers to Dr.
Yim’s interrogatories, in which Ralston stated that he was “not
properly informed” of the risk of the treatment. Finally,
Ralston argued that the circuit court erred in granting Dr. Yim
costs as the prevailing party because Dr. Yim should not have
prevailed on the motion for summary judgment.
In his answering brief, Dr. Yim argued that Ralston had
the burden of proving the malpractice claim with admissible
expert evidence, and that Ralston’s failure to submit any
admissible evidence within the briefing schedule set by the
circuit court appropriately resulted in the circuit court
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granting summary judgment. Dr. Yim then asserted that Ralston
waived his argument that the circuit court abused its discretion
in striking Dr. Aronowitz’s affidavit under HCCR Rule 7(a)
because Ralston had not raised it as a point of error. In
addition, Dr. Yim argued that Ralston “misapprehend[ed] the
procedure and relative burdens of production, persuasion and
proof in connection with Dr. Yim’s motion for summary judgment.”
Dr. Yim specifically asserted that he did not have an obligation
to submit affidavits in support of his motion for summary
judgment when he could “demonstrate the absence [of] an issue of
material fact ‘by showing that if the case went to trial, there
would be no evidence to support the non-movant’s position.’” Dr.
Yim asserted that he had satisfied his burden by showing that
Ralston lacked the requisite expert evidence. Dr. Yim further
contended that the present case was analogous to the United
States Supreme Court’s decision in Celotex,12 and consistent with
this court’s holding in French. Dr. Yim concluded that he had
12
Celotex is discussed in detail infra. The portion of Celotex
cited by Dr. Yim states:
[W]e find no express or implied requirement in Rule 56
that the moving party support its motion with
affidavits or other similar materials negating the
opponent’s claim. . . . [R]egardless of whether the
moving party accompanies its summary judgment motion
with affidavits, the motion may, and should, be
granted so long as whatever is before the district
court demonstrates that the standard for the entry of
summary judgment, as set forth in Rule 56(c), is
satisfied.
Id. at 323.
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met his initial burden of production by “detailing the absence of
any admissible evidence to raise a triable issue as to dental
negligence.”
Ralston filed a reply brief and argued that, as the
movant, Dr. Yim was required to first submit admissible evidence
to show the existence of a genuine issue of material fact before
the burden could be shifted to Ralston. Ralston also contended,
“Although [his] counsel has made technical missteps with respect
to the filing of [his] expert report, there is no deliberate
violation and no prejudice to [Dr. Yim] who received all the
requested information in a timely manner.” In addition, Ralston
asserted that he did not waive his right to argue that the
circuit court abused its discretion in denying his HRCP Rule
56(f) continuance because “appellate review necessarily includes
review of the trial court’s treatment of [his] supplemental
exhibit or expert affidavit[.]”
In its published opinion, the ICA determined that Dr.
Yim “did not present any evidence as the movant regarding the
dental standard of care, and because plaintiff Ralston was not
yet required to name his experts or provide their reports under
the circuit court deadlines,” concluded that the circuit court
improperly shifted the summary judgment burden to Ralston.
Ralston, 128 Hawai#i at 45, 282 P.3d at 587. The ICA stated, “it
was reasonable under the circumstances that Ralston was not yet
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ready to identify experts in response to Dr. Yim’s
interrogatories and thus Dr. Yim could not simply point to
Ralston’s interrogatory responses to satisfy his burden as the
summary judgment movant.” Id. The ICA cited French and Exotics
Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Company, 116
Hawai#i 277, 172 P.3d 1021 (2007), in support of this
proposition. Id. at 46-50, 282 P.3d at 588-92. In addition, the
ICA distinguished Eddins because, in Eddins, the movant-doctor
had satisfied his initial burden by putting forth affirmative
evidence showing that he had met the standard of care. Id. at
50, 282 P.3d at 592.
The ICA also distinguished Celotex. Id. at 50-51, 282
P.3d at 592-93. The ICA concluded that, unlike the non-movant in
Celotex, “Ralston did not have adequate time to conduct discovery
and to consider and identify his experts in responding to Dr.
Yim’s interrogatories.” Id. at 51, 282 P.3d at 593. In a
footnote, the ICA noted, “[w]e do not reach the question of
whether summary judgment may be appropriate in a situation where
the deadline for disclosing experts has not yet expired, but the
non-movant plaintiff has had adequate time to conduct discovery
and to identify experts.”13 Id. at 51 n.11, 282 P.3d at 593 n.11
(emphasis added).
13
The ICA did not address whether the circuit court abused its
discretion in striking Dr. Aronowitz’s affidavit.
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Thus, the ICA determined that the circuit court erred
in granting summary judgment in favor of Dr. Yim. Id. at 51, 282
P.3d at 593. The ICA also reversed the circuit court’s award of
taxable costs in favor of Dr. Yim because he was not the
“prevailing party” pursuant to HRCP Rule 54(d)(1). Id.
Accordingly, the ICA vacated and remanded the circuit court’s
final judgment. Id. at 52, 282 P.3d at 594.
The ICA filed its judgment on appeal and Dr. Yim timely
filed an application for writ of certiorari.
II. Standard of Review
“On appeal, the grant or denial of summary judgment is
reviewed de novo.” First Ins. Co. of Hawai#i v. A&B Props.,
Inc., 126 Hawai#i 406, 413, 271 P.3d 1165, 1172 (2012) (citing
Nuuanu Valley Ass’n v. City & Cnty. of Honolulu, 119 Hawai#i 90,
96, 194 P.3d 531, 537 (2008)). Furthermore,
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a
matter of law. A fact is material if proof of that
fact would have the effect of establishing or refuting
one of the essential elements of a cause of action or
defense asserted by the parties. The evidence must be
viewed in the light most favorable to the non-moving
party. In other words, we must view all of the
evidence and inferences drawn therefrom in the light
most favorable to the party opposing the motion.
Id. at 413-14, 271 P.3d at 1172-73 (citation omitted).
III. Discussion
The central issue is whether Dr. Yim, as the movant in
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a motion for summary judgment, satisfied his initial burden of
production. Ralston and the ICA, relying on this court’s
decision in French, contend that Dr. Yim had the initial burden
of production to put forth admissible evidence that he did not
breach the standard of care.14 Ralston, 128 Hawai#i at 46, 282
P.3d at 588. Dr. Yim, citing Celotex, argues that the ICA erred
in requiring him to present evidence that he did not breach the
standard of care, since he had the option of “pointing to
[Ralston’s] lack of evidence[.]” As explained below, the movant
in a motion for summary judgment cannot satisfy his or her
initial burden of production simply by pointing to the non-
movant’s lack of evidence prior to the discovery deadline, and
thus, Dr. Yim did not satisfy his initial burden of production.
A. Principles applicable to summary judgment motions
Under HRCP Rule 56(b), a party “may move with or
without supporting affidavits for a summary judgment in the
party’s favor[.]” “The judgment sought shall be rendered
14
In Craft v. Peebles, this court held,
It is well settled that in medical malpractice
actions, the question of negligence must be decided by
reference to relevant medical standards of care for
which the plaintiff carries the burden of proving
through expert medical testimony. The standard of
care to which a doctor has failed to adhere must be
established by expert testimony because a jury
generally lacks the requisite special knowledge,
technical training, and background to be able to
determine the applicable standard without the
assistance of an expert.
78 Hawai#i 287, 298, 893 P.2d 138, 149 (1995) (citations and quotation marks
omitted) (emphasis added).
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forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” HRCP Rule 56(c). Moreover,
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify
to the matters stated therein. . . . When a motion for
summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere
allegations or denials of the adverse party’s
pleading, but the adverse party’s response, by
affidavits or as otherwise provided in this rule, must
set forth specific facts showing that there is a
genuine issue for trial. If the adverse party does
not so respond, summary judgment, if appropriate,
shall be entered against the adverse party.
HRCP Rule 56(e).
This court has set forth a burden shifting paradigm for
situations where the non-movant bears the burden of proof at
trial:
The burden is on the party moving for summary
judgment (moving party) to show the absence of any
genuine issue as to all material facts, which, under
applicable principles of substantive law, entitles the
moving party to judgment as a matter of law. This
burden has two components.
First, the moving party has the burden of
producing support for its claim that: (1) no genuine
issue of material fact exists with respect to the
essential elements of the claim or defense which the
motion seeks to establish or which the motion
questions; and (2) based on the undisputed facts, it
is entitled to summary judgment as a matter of law.
Only when the moving party satisfies its initial
burden of production does the burden shift to the non-
moving party to respond to the motion for summary
judgment and demonstrate specific facts, as opposed to
general allegations, that present a genuine issue
worthy of trial.
Second, the moving party bears the ultimate
burden of persuasion. This burden always remains with
the moving party and requires the moving party to
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convince the court that no genuine issue of material
fact exists and that the moving party is entitled to
summary judgment as a matter of law.
French, 105 Hawai#i at 470, 99 P.3d at 1054 (citation and
emphasis omitted).
Thus, where the non-movant bears the burden of proof at
trial, a movant may demonstrate that there is no genuine issue of
material fact by either: (1) presenting evidence negating an
element of the non-movant’s claim, or (2) demonstrating that the
non-movant will be unable to carry his or her burden of proof at
trial. See id. at 472, 99 P.3d at 1056. In determining whether
a movant has demonstrated that the non-movant cannot carry his or
her burden of proof at trial, this court applies principles
derived from the United States Supreme Court’s holding in
Celotex. Accordingly, a review of Celotex is instructive.
Celotex concerned a motion for summary judgment brought
pursuant to Federal Rules of Civil Procedure (FRCP) Rule 56.15
477 U.S. at 319. There, the plaintiff, Myrtle Nell Catrett,
claimed that the defendant’s asbestos products caused her
husband’s death. Id. The defendant filed a motion for summary
judgment arguing that Catrett, as the non-moving party, failed to
meet her burden of showing that the defendant caused her
husband’s death because in her response to defendant’s
15
The version of FRCP Rule 56 in effect at the time of Celotex is in
relevant aspects substantively identical to HRCP Rule 56. This court can look
to cases interpreting the Federal Rules of Civil Procedure for persuasive
guidance. See Thomas v. Kidani, 126 Hawai#i 125, 130 n.5, 267 P.3d 1230, 1235
n.5 (2011).
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interrogatories, she failed to identify any witness that could
testify about her husband’s exposure to defendant’s asbestos.
Id. at 319-20. The federal district court granted the
defendant’s motion for summary judgment almost two years after
the lawsuit had been initiated. Id. at 320. On appeal, the
Court of Appeals for the District of Columbia Circuit reversed
the trial court and determined that the defendant’s motion for
summary judgment was “fatally defective” because it did not
include any evidence to prove it was not liable. Id. at 321.
The United States Supreme Court granted certiorari and determined
that FRCP Rule 56 did not require the defendant-movant to support
its motion for summary judgment with affirmative evidence to
rebut Catrett’s claim. Id. at 322. Instead, the Court held that
the moving party’s burden could also be discharged by “pointing
out to the district[] court that there is an absence of evidence
to support the nonmoving party’s case.” Id. at 325.
The Court also noted that FRCP Rule 56(c) mandates the
entry of summary judgment, only “after adequate time for
discovery[.]” Id. at 322. The Court determined that “no serious
claim can be made that [Catrett] was in any sense ‘railroaded’ by
a premature motion for summary judgment.” Id. at 326. Thus, the
Court reversed the Court of Appeals and remanded the case for
further proceedings with regard to whether Catrett had submitted
adequate evidence in opposition to the motion for summary
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judgment. Id. at 328. Justice White, who provided the fifth
vote for the majority opinion, stated in a concurring opinion:
I agree that the Court of Appeals was wrong in
holding that the moving defendant must always support
his motion with evidence or affidavits showing the
absence of a genuine dispute about a material fact. I
also agree that the movant may rely on depositions,
answers to interrogatories, and the like, to
demonstrate that the plaintiff has no evidence to
prove his case and hence that there can be no factual
dispute. But the movant must discharge the burden the
Rules place upon him: It is not enough to move for
summary judgment without supporting the motion in any
way or with a conclusory assertion that the plaintiff
has no evidence to prove his case.
A plaintiff need not initiate any discovery or
reveal his witnesses or evidence unless required to do
so under the discovery Rules or by court order. Of
course, he must respond if required to do so; but he
need not also depose his witnesses or obtain their
affidavits to defeat a summary judgment motion
asserting only that he has failed to produce any
support for his case. It is the defendant's task to
negate, if he can, the claimed basis for the suit.
Petitioner Celotex does not dispute that if
respondent has named a witness to support her claim,
summary judgment should not be granted without Celotex
somehow showing that the named witness’ possible
testimony raises no genuine issue of material fact.
It asserts, however, that respondent has failed on
request to produce any basis for her case.
Respondent, on the other hand, does not contend that
she was not obligated to reveal her witnesses and
evidence but insists that she has revealed enough to
defeat the motion for summary judgment. Because the
Court of Appeals found it unnecessary to address this
aspect of the case, I agree that the case should be
remanded for further proceedings.
477 U.S. at 328-29 (White, J., concurring) (citation omitted)
(emphasis added).
In general, Celotex has been interpreted in the federal
courts as standing for the proposition that
under certain circumstances the movant may meet its
Rule 56 burden without negating an element of the non-
moving party’s claim and that under such circumstances
it is sufficient to point to materials on file that
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demonstrate that the party bearing the burden of proof
at trial will not be able to meet that burden.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 607-08 (11th Cir.
1991) (emphasis added) (noting that Celotex presented the
“unusual situation” wherein “neither party could prove either the
affirmative or the negative of an essential element of the
claim”); see also Anderson v. Radisson Hotel Corp., 834 F. Supp.
1364, 1368 (S.D. Ga. 1993); United States v. Four Parcels of Real
Property, 941 F.2d 1428, 1438 n.19 (11th Cir. 1991) (holding that
the movant “must point to specific portions of the record in
order to demonstrate that the nonmoving party cannot meet its
burden of proof at trial”); Nissan Fire & Marine Ins. Co., Ltd.
v. Fritz Cos., Inc., 210 F.3d 1099, 1105 (9th Cir. 2000)
(determining that a movant must have “made reasonable efforts,
using the normal tools of discovery, to discover whether the
nonmoving party has enough evidence to carry its burden of
persuasion at trial”).
In addition, some federal courts, relying on Justice
White’s concurring opinion in Celotex, have emphasized that
Celotex does not permit a defendant to prevail by “merely
asserting that the non-moving party has not come forward with
evidence to support its claim[.]” Anderson, 834 F. Supp. at 1368
(emphasis added). Rather, the defendant must demonstrate that
the plaintiff “cannot carry its burden of proof at trial.” Id.
(emphasis added).
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This court adopted a similar view of Celotex in French
and Exotics Hawaii-Kona. In French, the plaintiff, Bobbie L.
French, filed an employment discrimination claim against her
employer, Hawai#i Pizza Hut, asserting that she was discriminated
against because of her disability. French, 105 Hawai#i at 465-
66, 99 P.3d at 1049-50. French’s claimed disability was a
medical limitation to not lift over twenty-five pounds. Id.
Pizza Hut filed a motion for summary judgment and argued that
French was not disabled as a matter of law. Id. at 466, 472-73,
99 P.3d at 1050, 1056-57. The circuit court granted summary
judgment in favor of Pizza Hut because, inter alia, French’s
impairment did not constitute a disability as a matter of law.
Id. at 466, 99 P.3d at 1050. French appealed, and this court
concluded that the circuit court erred in granting summary
judgment on this basis because the question of whether French’s
limitation constituted a disability must be resolved on a case-
by-case basis. Id. at 470, 99 P.3d at 1054.
This court then addressed Pizza Hut’s alternative
argument, that summary judgment was appropriate because French
failed to provide the court with admissible evidence that the
average person could lift more than 25 pounds, and thus failed to
establish she was disabled in a major life activity. Id. Noting
that Pizza Hut, as the movant, had the initial burden of
demonstrating the absence of a genuine issue of material fact,
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this court concluded that it was Pizza Hut’s burden “to produce
admissible evidence that the average person in the general
population cannot lift more than twenty-five pounds.” Id. at
470-71, 99 P.3d at 1054-55 (emphasis added). Because Pizza Hut
failed to produce such admissible evidence, this court concluded
that Pizza Hut had not satisfied its initial burden. Id. at 473,
99 P.3d at 1057.
However, the dissenting opinion, relying on Celotex,
concluded that Pizza Hut had met its initial burden. Id. at 481,
99 P.3d at 1065 (Nakayama, J., dissenting). In response, the
majority distinguished Celotex from the case before it, and
explained:
[T]he defendant in Anderson[, 834 F. Supp. at 1368,]
relied on Celotex, and asserted that it had met its
burden by pointing out an absence of evidence on the
record to support at least one essential element of
the plaintiffs’ claim.
However, the Anderson court explained that,
“[a]lthough Celotex stands for the proposition that
under certain circumstances a summary judgment movant
may carry its burden without presenting evidence
negating an element of the other party’s claim, merely
asserting that the non-moving party has not come
forward with evidence to support its claims is not
enough.” As the court pointed out, “To repeat: the
movant must first demonstrate that the non-moving
party cannot carry its burden of proof at trial.”
“The distinction between not placing proof in the
record and not being able to offer proof at trial is
crucial.” As emphasized by Justice White in Celotex,
[a] plaintiff need not initiate any discovery or
reveal his witness or evidence unless required
to do so under the discovery Rules or by court
order. Of course, he must respond if required
to do so; but he need not also depose his
witnesses or obtain their affidavits to defeat a
summary judgment motion asserting only that he
has failed to produce any support for his case.
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As pointed out by the Anderson court, the movant
in Celotex had taken the affirmative step, in its
interrogatories, of asking the clinching question in
discovery, and had received a favorable answer, and
pointed out the plaintiff’s implicit admission to the
Court. Accordingly, the movant made a “show[ing of]
the absence of any genuine issues as to all material
facts.” In the present case, however, Pizza Hut has
made no such showing, and did not even argue that
Appellant had no evidence to prove whether her lifting
restriction was a “substantial limitation” of a “major
life activity,” as compared to the average person.
French, 105 Hawai#i at 471-72, 99 P.3d at 1055-56 (emphasis
added) (citations and footnote omitted).
Subsequently, in Exotics Hawaii-Kona, the movant-
defendant-DuPont sought summary judgment on the ground the
plaintiffs could not prove damages for their claim. 116 Hawai#i
at 286, 172 P.3d at 1030. Specifically, DuPont asserted that the
deadline for the submission of final expert reports had passed
and the reports of plaintiffs’ experts were insufficient to prove
damages. Id. Accordingly, DuPont argued that the plaintiffs
could not sustain their burden of proof with regard to damages at
trial. Id. The circuit court awarded summary judgment in favor
of DuPont. Id. at 283-84, 172 P.3d at 1027-28. This court
upheld summary judgment in favor of DuPont on the ground that
plaintiffs “could not, as a matter of law, prove damages[.]” Id.
at 283, 172 P.3d at 1027. This court explained:
[T]he moving party has the initial burden of
identifying those portions of the record demonstrating
the absence of a genuine issue of material fact. The
moving party may discharge his or her burden by
demonstrating that[,] if the case went to trial[,]
there would be no competent evidence to support a
judgment for his or her opponent. Cf. Celotex Corp.
v. Catrett, 477 U.S. 317 . . . (1986) (a party moving
for summary judgment under Federal Rules of Civil
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Procedure Rule 56 need not support his or her motion
with affidavits or similar materials that negate his
or her opponent’s claims, but need only point out that
there is [an] absence of evidence to support the
opponent’s claims). For if no evidence could be
mustered to sustain the nonmoving party’s position, a
trial would be useless.
. . . .
Moreover, “[t]he evidentiary standard required of a
moving party in meeting its burden on a summary
judgment motion depends on whether the moving party
will have the burden of proof on the issue at trial.”
Where the moving party is the defendant, who does not
bear the ultimate burden of proof at trial, summary
judgment is proper when the non-moving party-plaintiff
fails to make a showing sufficient to establish
the existence of an element essential to that
party’s case, and on which that party will bear
the burden of proof at trial. In such a
situation, there can be no genuine issue as to
any material fact, since a complete failure of
proof concerning an essential element of the
nonmoving party’s case necessarily renders all
other facts immaterial. The moving party is
entitled to judgment as a matter of law because
the nonmoving party has failed to make a
sufficient showing on an essential element of
her case with respect to which she has the
burden of proof.
Id. at 301-02, 172 P.3d at 1045-46 (emphasis added) (some
brackets in original and some citations omitted).
Applying these principles to DuPont’s motion, this
court noted that “plaintiffs proffered reports of their economic
expert and attorney experts[,]” but that these reports “were
insufficient as a matter of law to establish plaintiffs’
damages.” Id. at 302, 305-06, 172 P.3d at 1046, 1049-50.
Accordingly, this court upheld the circuit court’s grant of
summary judgment in favor of DuPont. Id. at 305-06, 172 P.3d at
1049-50. Significantly, in Exotics Hawaii-Kona the deadline for
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the submission of additional expert reports had passed. Id. at
302-03, 172 P.3d at 1046-47.
Recently, this court addressed a somewhat similar issue
in Thomas. In Thomas, the plaintiff, Tara Thomas, filed a legal
malpractice suit against her former attorney, Grant K. Kidani.
126 Hawai#i at 126, 267 P.3d at 1231. Kidani filed a motion for
summary judgment arguing that Thomas was unable to show an
element of her legal malpractice claim, i.e., that she would have
prevailed at trial. Id. at 127, 267 P.3d at 1232. In his motion
for summary judgment, Kidani pointed to the trial of the
underlying case and noted that he had raised the argument that
Thomas asserted should have been argued, and that the court in
the underlying case rejected the argument. Id. This court did
not explicitly address whether Kidani had satisfied his initial
burden of production, however, this court stated, “[s]ummary
judgment for Kidani is proper if Kidani shows that Thomas cannot
meet her burden of proof.” Id. at 130, 267 P.3d at 1235. After
noting that the causation element of a legal malpractice claim
requires a plaintiff to litigate a “trial within a trial,” this
court analyzed Thomas’s citation to several cases and Thomas’s
expert’s declaration to determine if she demonstrated she could
satisfy her burden of proof at trial. Id. at 130-33, 267 P.3d at
1235-38. This court determined that Thomas could not satisfy her
burden of proof at trial. Id. at 133, 267 P.3d at 1238.
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Therefore, Thomas is another example of summary judgment being
granted against a non-moving party who did not merely fail to
place “proof in the record,” but who also would be unable to
“offer proof at trial[.]” French, 105 Hawai#i at 472, 99 P.3d at
1056 (citation omitted).
In sum, this court’s case law indicates that a summary
judgment movant may satisfy his or her initial burden of
production by either (1) presenting evidence negating an element
of the non-movant’s claim, or (2) demonstrating that the non-
movant will be unable to carry his or her burden of proof at
trial. See French, 105 Hawai#i at 470-72, 99 P.3d at 1054-56;
Exotics Hawaii-Kona, 116 Hawai#i at 302, 172 P.3d at 1046. Where
the movant attempts to meet his or her burden through the latter
means, he or she must show not only that the non-movant has not
placed proof in the record, but also that the movant will be
unable to offer proof at trial. See French, 105 Hawai#i at 472,
99 P.3d at 1056 (citing Anderson, 834 F. Supp. at 1368).
Accordingly, in general, a summary judgment movant cannot merely
point to the non-moving party’s lack of evidence to support its
initial burden of production if discovery has not concluded.
See id. (“[M]erely asserting that the non-moving party has not
come forward with evidence to support its claims is not
enough.”).
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B. Summary judgment in favor of Dr. Yim was improper in the
circumstances of this case
Applying these principles to the instant case, Dr. Yim
did not satisfy his initial burden of production when he filed
his motion for summary judgment since he did not demonstrate that
Ralston could not meet his burden of proof at trial. Dr. Yim had
the option of either putting forth affirmative evidence, or
showing that Ralston could not carry his burden of proof at
trial. See id. at 470-72, 99 P.3d at 1054-56; Exotics Hawaii-
Kona, 116 Hawai#i at 302, 305-06, 172 P.3d at 1046, 1049-50. Dr.
Yim neither provided affirmative evidence to support his position
that he did not breach the standard of care, nor did he point to
anything to indicate that Ralston would not have been able to
offer proof at trial of a breach of the standard of care.
The only evidence Dr. Yim relied upon in support of his
motion for summary judgment was two responses to interrogatories
from Ralston in which Ralston stated that he would provide expert
reports upon their availability. Ralston did not state in his
responses that he could not name any experts or produce any
expert testimony at trial to show that Dr. Yim breached the
standard of care. Cf. Exotics Hawaii-Kona, 116 Hawai#i at 283,
305-06, 172 P.3d at 1027, 1049-50 (holding that the plaintiffs’
expert reports were insufficient to prove damages at trial and
noting that the date for supplementing those expert reports had
passed). Moreover, at the time that Ralston responded to Dr.
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Yim’s two sets of interrogatories (seven months and ten months
after Ralston filed his complaint, respectively), Ralston was not
yet required to name his witnesses.16 See French, 105 Hawai#i at
472, 99 P.3d at 1056 (“[A] plaintiff need not initiate any
discovery or reveal his witness or evidence unless required to do
so under the discovery Rules or by court order.”) (citation
omitted). Thus, Dr. Yim’s references in his motion for summary
judgment to Ralston’s interrogatory responses did not satisfy Dr.
Yim’s initial burden of production. See id. at 471-72, 99 P.3d
at 1055-56.
Furthermore, Dr. Yim does not contend that Ralston
ultimately would have been unable to offer proof at trial that
Dr. Yim did not meet the appropriate standard of care. Dr. Yim
only contends that Ralston failed to provide proof in the record.
As this court acknowledged in French, “[t]he distinction between
not placing proof in the record and not being able to offer proof
at trial is crucial.” Id. at 472, 99 P.3d at 1056 (citation
omitted).
In addition, and as the ICA stated below, the instant
case is distinguishable from Exotics Hawaii-Kona because that
case involved a situation where the discovery deadline had
16
The expert exchange deadline was left blank in the Trial Setting
Status Conference Order. The discovery deadline was set for July 27, 2010,
and pursuant to RCCH Rule 12(r), the deadline for naming witnesses was not
until May 2010. Thus, when Ralston responded to Dr. Yim’s interrogatories on
December 8, 2008 and April 13, 2009, Ralston’s time to gather further evidence
in support of his claim had not elapsed.
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already passed when the court granted the motion for summary
judgment. 116 Hawai#i at 283, 286-87, 172 P.3d at 1027, 1030-31.
Thus, there was no time left for the parties to gather further
expert opinions. Id. In the instant case, there was still over
a year left before the parties were required to submit all
discovery and to name their final witnesses.17 See supra note
16. Therefore, Exotics Hawaii-Kona is a case where the non-
moving party was unable to “offer proof at trial” as opposed to
merely failing to place “proof in the record[.]” French, 105
Hawai#i at 472, 99 P.3d at 1056 (citation omitted).
Dr. Yim also argues that the ICA erred in
distinguishing Eddins. There, Darston Eddins filed a medical
malpractice suit against Dr. J. Steven Morrison. Eddins, 105
Hawai#i at 376, 98 P.3d at 247. Dr. Morrison filed a motion for
summary judgment and attached to his motion the affidavits of two
doctors who stated that Dr. Morrison’s treatment met the
applicable standard of care. Id. at 377, 98 P.3d at 248. Eddins
filed an opposition to Dr. Morrison’s motion for summary judgment
and attached the opinions of two other doctors who stated that
17
Although Ralston’s counsel agreed at the May 13, 2009 hearing to
an accelerated deadline to provide his expert’s report and to respond to the
motion for summary judgment, there is nothing in the record to indicate that
Ralston agreed to an accelerated deadline to name all of the witnesses that he
would rely on at trial or to an accelerated deadline to conclude discovery.
The failure of Ralston’s counsel to provide an admissible expert opinion by
the agreed-upon date does not indicate that Ralston could not meet his burden
of proof at trial. Inasmuch as Dr. Yim failed to provide affirmative evidence
that he satisfied the standard of care and failed to demonstrate that Ralston
could not offer proof at trial, Dr. Yim did not satisfy his initial burden of
production.
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Dr. Morrison’s treatment did not meet the standard of care. Id.
Eddins’s doctors’ opinions were “not contained in affidavits or
otherwise made under oath or penalty of perjury.” Id. These
opinions were “xerox copies of the opinions [Eddins] mailed or
faxed to Dr. Morrison’s original attorney . . . that were used in
[a] court-annexed arbitration[.]” Id. at 377-78, 98 P.3d at 248-
49. The circuit court determined that the opinions attached to
Eddins’ opposition were inadmissible hearsay because the
testimony was not presented by affidavit. Id. at 378, 98 P.3d at
249. On appeal, the ICA determined that Eddins did not seek an
HRCP Rule 56(f) continuance in order to obtain affidavits for his
doctors’ opinions, and that after Dr. Morrison submitted his
doctors’ affidavits “it was necessary” for Eddins to present
affidavits in support of his position. Id. In addition, the ICA
noted that after the circuit court struck Eddins’ doctors’
opinions and granted the motion for summary judgment, it gave
Eddins a “second chance,” i.e., the option of filing a motion “to
try to remedy the situation[.]” Id. at 379, 98 P.3d at 250. As
the ICA noted, however, Eddins took no action in response. Id.
Accordingly, the ICA affirmed the circuit court’s grant of
summary judgment in favor of Dr. Morrison. Id.
Eddins is distinguishable from the instant case.
Unlike Eddins, where the movant Dr. Morrison submitted expert
reports to satisfy his initial burden of production, here, Dr.
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Yim merely pointed to Ralston’s lack of evidence on his claim and
Ralston’s responses to Dr. Yim’s interrogatories. The ICA’s
holding that Eddins, as the non-moving party, failed to properly
rebut the evidence presented by Dr. Morrison to create a genuine
issue of material fact, differs from the situation presented in
this case where the issue is whether the movant, Dr. Yim,
satisfied his initial burden of production. Had Dr. Yim provided
a proper expert affidavit in support of his motion, Ralston would
have been required to submit his expert’s affidavit or request a
HRCP Rule 56(f) continuance to allow more time to produce an
admissible affidavit. Cf. Eddins, 105 Hawai#i at 377-79, 98 P.3d
at 248-50. However, Dr. Yim did not do so.
Accordingly, Dr. Yim failed to satisfy his initial
burden of production, and the ICA did not err in vacating the
circuit court’s judgment granting summary judgment in favor of
Dr. Yim.
C. HRCP Rule 56(f) is the proper procedure to request and
obtain additional time to respond to a motion for summary
judgment that is filed prior to the discovery deadline
The ICA, citing Celotex, appeared to suggest that
summary judgment may be appropriate prior to a discovery deadline
if the non-movant has had “adequate time to conduct discovery and
to identify experts.” Id. at 51 n.11, 282 P.3d at 593 n.11
(emphasis added). The ICA also concluded that, in the instant
case, Ralston did not have “adequate time” to conduct discovery.
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Id. Dr. Yim asserts that the ICA’s determination that Ralston
did not have adequate time to conduct discovery “subverts the
procedure for a [HRCP] Rule 56(f) continuance” because Ralston
failed to authenticate his expert’s report within the agreed-upon
deadline and failed to request a continuance to authenticate the
report. Dr. Yim also contends that the “ICA’s ruling creates a
confusing and impractical rule for the circuit court[s] to try to
implement.” In addition, Dr. Yim argues that the ICA’s opinion
“encourages and protects inaction and non-disclosure of expert
opinion by plaintiffs in malpractice action[s.]”
Under the circumstances of this case, we need not reach
this issue because Dr. Yim failed to meet his initial burden of
production. Nevertheless, we take this opportunity to clarify
that the ICA erred in suggesting that the question of whether
Ralston had “adequate time” to conduct discovery was relevant to
its review of the summary judgment motion. First, such an
approach would be inconsistent with the principles set forth by
this court in French because it implies that a movant could
obtain summary judgment simply by pointing to the non-movant’s
lack of evidence, so long as “adequate time” for discovery has
passed. However, French requires that “the movant must first
demonstrate that the non-moving party cannot carry its burden of
proof at trial.” 105 Hawai#i at 472, 99 P.3d at 1056. There is
nothing in French that suggests that summary judgment is
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appropriate simply because there has been “adequate time” for
discovery. To the contrary, the clear import of French is that
summary judgment should not be granted when there is still time
for the non-movant to develop evidence for use at trial, unless
there is a basis for concluding (as was the case in Celotex) that
such an effort would be futile.
Second, the procedures set forth in HRCP Rule 56(f)
provide non-moving parties with protection against a premature
grant of a motion for summary judgment. HRCP Rule 56(f) provides
When Affidavits are Unavailable. Should it appear
from the affidavits of a party opposing the motion
that the party cannot for reasons stated present by
affidavit facts essential to justify the party’s
opposition, the court may refuse the application for
judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken
or discovery to be had or may make such other order as
is just.
(Emphasis added).
In Crutchfield v. Hart, 2 Haw. App. 250, 252, 630 P.2d
124, 125 (1981) (citation omitted), the ICA stated that the
“safeguard against an improvident or premature grant of summary
judgment” is a HRCP Rule 56(f) continuance. Moreover, it is
generally recognized that,
The purpose of subdivision (f) is to provide an
additional safeguard against an improvident or
premature grant of summary judgment and the rule
generally has been applied to achieve that objective.
Consistent with this purpose, courts have stated that
technical rulings have no place under the subdivision
and that it should be applied with a spirit of
liberality.
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10B Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice and Procedure Civil 3d § 2740, at 402 (1998)
(footnotes omitted).
The ICA’s suggestion that a court considering a motion
for summary judgment should determine whether the non-movant had
“adequate time” to conduct discovery undercuts the role of HRCP
Rule 56(f) as the “safeguard against an improvident or premature
grant of summary judgment[.]” Crutchfield, 2 Haw. App. at 252,
630 P.2d at 125 (citation omitted). Put another way, HRCP Rule
56(f) is the appropriate means by which parties can ensure that
they have adequate time to respond to a motion for summary
judgment.
Accordingly, the ICA erred in suggesting that the
adequacy of the time Ralston had to conduct discovery was
relevant to its determination of whether summary judgment was
appropriate.
IV. Conclusion
In sum, the circuit court erred in granting summary
judgment because Dr. Yim did not meet his initial burden of
production. Accordingly, the judgment of the ICA is affirmed.
John Reyes-Burke for /s/ Mark E. Recktenwald
petitioner
/s/ Paula A. Nakayama
Sue V. Hansen for
respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Karen S.S. Ahn
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