Weite v. Momohara

LAW L!BRARY

FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER

IN THE INTERMEDIATE COURT OF APPEALS

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MARIE WEITE, Plaintiff-Appellant/Cross-Appell
v

MATSUO MOMOHARA, Defendant;Appellee/Cross-Appellant,
and

DOE DEFENDANTS l-lO, DefeHdaHtS

NO. 29322

APPEAL FR0M THE cIRcUIT c0URT 0F THE FIRsT cIRcUIT
(CIvIL N0. 05~1-1525)

SEPTEMBER l4, 2010

FOLEY, PRESIDING J., LEONARD AND REIFURTH, JJ.

OPINION OF THE COURT BY FOLEY, J.

In this appeal and cross-appeal arising out of a motor
2000 in Honolulu,

vehicle accident that occurred on February 8,
(the 2000 accident), Plaintiff-Appellant/Cross-Appellee
appeals and Defendant-Appellee/Cross-
cross-appeals from the

Hawafi
Marie Weite (Weite)

Appellant Matsuo Momohara (§0mohara)
2008, in the Circuit Court of the

Judgment filed on June 18,
First Circuit (circuit court).l After a jury trial, the circuit

court entered judgment in favor of Weite and against Momohara on

all claims in Weite's First Amended Complaint and stated:

From the jury verdict in favor of [Weite] in the
amount of Nineteen Thousand Six Hundred Twenty-Eight Dollars
and Thirty-Two Cents ($l9,628.32), the sum of Six Thousand
Five Hundred Thirty~Seven Dollars and Seventy-Three Cents
($6,537.73) representing the CoVered Loss Deductible
pursuant to [Hawaii Revised Statutes (HRS)] § 431-lOC-30l.5,

shall be deducted.

Accordingly, it is hereby ordered, adjudged and
decreed that Judgment be and is hereby entered in favor of
[Weite] in the amount of Thirteen Thousand Ninety Dollars

and Fifty»Nine Cents ($l3,090.59).

1 The Honorable Glenn J. Kim presided.

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On appeal, Weite contends the circuit court erred in

(l) denying her "Motion for Partial Summary Judgment
on the Issues of Medical Necessity of Health Care and
Reasonableness of Health Care Charges" (MPSJ Re Medical Bills),
where Momohara had no medical expert testimony to refute
causation of her medical treatment;

(2) denying her "Motion in Limine # 7 to (l) Exclude
Argument Regarding the Apportionment of [Weite's] Injuries to
Preexisting Causes or Prior Accidents and (2) Exclude Any
Reference to Prior Accidents" (MIL Re Prior Accidents) on the
issue of apportionment and allowing argument on apportionment to
go to the jury, where Momohara had no medical expert testimony
refuting Weite's treating physicians' opinions that her injuries
were 100% caused by the 2000 accident;

(3) refusing to permit Weite's expert witness and
treating physician, Robert Nierenberg, M.D. (Dr. Nierenberg), to
provide his expert opinion as an independent medical examiner on
the issue of apportionment;

(4) giving HawaFi Standard Civil Jury Instruction
No. 7.3 (HCJI 7.3) on the issue of apportionment and refusing to
give Weite's proposed Supplemental Jury Instruction No. 5
(Weite's proposed JI 5);

(5) placing separate apportionment questions on the
special verdict form, which, in combination with the erroneous
submission of the jury's instructions, created confusion and
allowed the jury to apportion Weite's damages twice; `

(6) calculating the judgment by apportioning the jury

award of special damages and general damages by 50% and then

subtracting the full amount of the covered loss deductible (CLD);

and

(7) failing to find that Weite was the "prevailing
party" for purposes of assessing Court Annexed Arbitration
Program (CAAP) sanctions.

Weite also contends the circuit court abused its

discretion in not awarding her prejudgment interest, granting

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Momohara taxable costs as the "prevailing party," and denying her
taxable costs as the "non-prevailing party,"

Weite requests that we reverse the Judgment; vacate the
portion of the jury verdict apportioning her damages; declare her
the prevailing party entitled to CAAP sanctions, costs, and
attorney's fees; remand this case for re-calculation of the
judgment amount and prejudgment interest; and/or remand this case
for a new trial,

On cross-appeal, Momohara contends the circuit court
erred in

(1) denying his "Motion in Limine No. 3 to Limit
and/or Exclude [Weite's] Claims for Medical Expenses" (MIL Re
Medical Claims), where the circuit court should have limited
Weite's claimed medical expenses in amount and frequency to those
permitted under the workers' compensation fee schedule, pursuant
to HRS § 43l:10C-308.5(b) (Supp. l999), and prohibited Weite from
introducing evidence of medical expenses beyond that limit; and

(2) permitting Dr. Nierenberg to testify regarding the
amounts, reasonableness, and necessity of Weite's medical
expenses incurred at Queen's Medical Center (QMC), Radiology
Associates (RA), and 0rthopedic Rehabilitation Specialists (ORS).

Momohara asks that we vacate the jury's award of
special medical damages to Weite in excess of the amount
permitted under HRS § 43l:lOC-308.5(b) and medical expenses to
Weite from QMC, RA, and ORS and remand this case for re-
calculation of the appropriate judgment amount. Momohara also
states that the judgment should reflect Weite's $1,000 automobile
insurance deductible, as apportioned by the jury.

I.

The 2000 accident occurred when Weite's car was struck
by a car driven by Momohara. lt is undisputed that Momohara
negligently caused the accident.2 After the incident, Weite was

treated by Dr. Nierenberg and Dennis B. Lind, M.D. (Dr. Lind), a

2 On August 9, 2007, the parties filed a Stipulation and Order
Regarding Liability and Consent, in which Momohara admitted he was negligent
in causing the 2000 accident.

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psychiatrist, and underwent physical therapy with ORS for
injuries she claimed resulted from the 2000 accident.

A . PRETRIAL

1. Settlement negotiations with A.I.G. Hawaii
Insurance Company (AIG)

On November 2, 2004, Weite sent a demand letter with
copies of her medical records to AIG, Momohara's automobile
insurance carrier. Weite and AIG entered into settlement
negotiations. while negotiations were ongoing, Weite filed her
First Amended Complaint. AIG then withdrew its settlement offer.

2. First Amended Complaint

Weite filed a First Amended Complaint on February 3,
2006, alleging that while operating his motor vehicle on or about
February 8, 2000; Momohara had committed a "breach of duty,
negligence, and/or other wrongful acts or omissions" that legally
caused her physical injuries and other damages. Weite sought
special and general damages, pre- and post-judgment interest, and
costs. v

3 . CAAP arbitration

Weite and Momohara entered into a CAAP arbitration, and
the arbitrator issued an Arbitration Award on November 9, 2006.
The arbitrator awarded Weite $7,808.62 in special damages,
$20,000 in general damages, and $299.50 in costs. The award
provided that pursuant to HRS § 43l:l0C-301.5 (2005 Repl.), the
"[t]otal damages shall be reduced by a CLD in the amount of
[$]6,808.62." On November l7, 2006, Momohara filed an appeal
from the Arbitration Award and a request for trial de novo to the
circuit court.

4. Offer from Momohara

On February 28, 2007, Momohara offered Weite $5,000 in
general damages, net of the CLD, to settle Weite's claims. On ‘
March l6, 2007, Momohara proffered a Hawai‘i Rules of Civil
Procedure (HRCP) Rule 68 Offer of Settlement in the amount of
$l0,000 in general damages, net of the CLD, to settle Weite's

claims.

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5. Stipulation

On July l6, 2007, the parties filed a "Stipulation that
[Weite] Has Met an Exception to the Abolition of Tort Liability
Pursuant to HRS § 43l:l0C-306(b)(4)" by incurring personal injury
protection (PIP) benefits equal to or in excess of $5,000.

6. Sanction

On October 4, 2007, Momohara filed his First 1
Supplemental Final Naming of Witnesses (Naming of Witnesses),
adding Pat Oda (Oda), whom Momohara had not previously identified
in his August 2l, 2007 Final Naming of Witnesses. On October l7,
2007, Weite filed a "Motion to Strike Pat Oda from [Momohara's]
First Supplemental Final Naming of Witnesses, Filed October 4,
2007, and Preclude Video from Trial" (Motion to Strike
Oda/Preclude Video), in which she moved to strike Oda as a trial
witness and preclude from trial a video of Weite taken after the
2000 accident because Momohara had not named Oda or provided
Weite with a copy of the video until after the discovery cut-off
date. After a hearing, the circuit court filed a November 7,
2007 order, in which the court treated the motion as a motion for
sanctions and sanctioned Momohara for the discovery violations,
but declined to strike Oda as a witness or preclude the video
from trial.

7. MPSJ Re Medical Bills 4

On August 24, 2007, Weite filed her MPSJ Re Medical
Bills, in which she moved the circuit court for an order granting
partial summary judgment in her favor and finding (l) as a matter
of law that all of her health care for injuries sustained in the
2000 accident was reasonable and necessary, (2) she had incurred
$8,963.90 in reasonable and appropriate health care charges and a
$l,000 automobile insurance deductible (deductible), and (3) the
$7,936.06 in medical expenses paid by Island Insurance Company,
Ltd., her automobile insurer, (PIP provider) were reasonable and
necessary.

On October 9, 2007, Momohara filed a memorandum and
supplemental memorandum in opposition, In his opposition,

Momohara pointed to Weite's deposition testimony wherein she

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admitted that from the time of her 1988 accident, she continued
to have intermittent and periodic pain in her neck and back,
including as of the time of the 2000 accident. The circuit court
held a hearing on the MPSJ Re Medical Bills on October l6, 2007,

The circuit court orally denied the motion, stating:

I don't know how strong [Momohara's] case is going to be. 1
don't know whether [Momohara is] going to be able to
convince the jury, but, as 1 see it there is still a genuine
issue of material fact. The jury is specifically
instructed, for example, that they don't have to believe
anything the experts say.

On October 22, 2007, the circuit court filed an order denying the
MPSJ Re Medical Bills.
9. Weite's MIL Re Prior Accidents
.On April 2l, 2008, Weite filed her MIL Re Prior

Accidents, in which she moved

for an order excluding any argument regarding the need for
an apportionment of [Weite‘s] injuries to preexisting causes
or prior accidents and to exclude any reference to prior
accidents. {Weite's] treating physicians attribute 100% of
[Weite's] treatment to the [2000 accident]. [Momohara] has
not retained any expert witnesses to dispute this testimony
and has not even deposed the treating physicians. At this
juncture, there is no competent evidence that can serve as
the basis for an apportionment. It is likely that
[Momohara's] counsel will comment in opening statement about
prior accidents that [Weite] was involved in. Such
comments, unsupported by any evidence that [Weite's]
injuries overlapped and require an apportionment, are
irrelevant and/or unduly prejudicial. Further, references
to prior accidents appear in [Weite's] medical records.
[Weite] has prepared a redacted set of medical records to
remove these references.

On April 25, 2008, Momohara filed a memorandum in opposition, in
which he argued there was evidence that Weite had symptoms from
preexisting injuries at the time of the 2000 accident; Weite had
the burden of proving her case, including causation; Momohara had
the right to cross-examine Weite's expert witness regarding the
basis of his opinions; and Momohara did not have to present his
own witnesses to rebut Weite's expert testimony. On April 29,
2008, Weite filed a reply. The circuit court held a hearing on
the motions in limine on May 2, 2008, at which the court orally
denied the MIL Re Prior Accidents, stating that "in the Court's
view this is for the jury." The circuit court further stated

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that if after Momohara presented his case there was insufficient
evidence for apportionment to go to the jury, the court would
rule accordingly.

9. Momohara’s MIL Re Medical Claims

On April 21, 2008, Momohara filed his MIL Re Medical
Claims, in which he sought an order (1) limiting Weite's claim
for past medical expenses to $7,808.62 and (2) excluding any and
all claims by Weite for future medical treatment and related
expenses. Momohara alleged that in response to an interrogatory,
Weite stated she had incurred medical expenses stemming from the
2000 accident totaling $7,808.62, which represented a $1,000
deductible she had paid and $6,808.62 in payments made by her PIP
provider. Weite had not indicated that she incurred any expenses
in excess of $7,808.62. Momohara maintained that Weite had not
exhausted the amount of medical insurance benefits available to
her and should be precluded from asserting any claims for future
medical treatment or related expenses.

On April 25, 2008, Weite filed a memorandum in
opposition, in which she stated that her PIP payments totaled
$7,872.34: the $1,000 deductible she had paid and $6,872.34 her
PIP provider had paid. She argued she was entitled to the
"reasonable value" of her medical expenses, or $8,556.63,
pursuant to Bynum v. Magno, 106 HawaiU.81, 86-87 & 92, 101 P.3d
1149, 1154-55 & 1160 (2004), and was not limited to the amount
paid by her PIP provider.

l ' After the hearing, the circuit court filed an order on
May 14, 2008 denying the motion.
B. TPRI1UL
1. Weite's testimony

Weite testified that in 1981 while working at Sears,
she lifted a carpet and ruptured a disk at the L4-5 level in her
back (1981 injury). She stated that at some point, the herniated

disc resolved3 itself and was no longer an issue for her, but the

3 Weite testified that by "resolved" she meant "gone away
substantially" and if she felt only occasional pain from an injury, she
considered the condition to be resolved.

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herniation "never went away." Weite continued to have low back
pain stemming from the lifting incident from 1981 through 1984.
She experienced a recurrence of the back pain in 1984 such that
she needed bed rest for one week. In 1988, Weite injured her
neck and back in a car accident (the 1988 accident). She
testified that at some point, her injuries from the 1988 accident
were "essentially resolved," but there were occasions when her
lower back would hurt when she "overexerted or did something."
She was still having symptoms from injuries resulting from the
1988 accident in 1989, was still having pain in her back and
right leg in 1992, and had occasional flare ups of back pain
prior to 1994.

_ In 1994, Weite was knocked unconscious; broke her arm;
and cut her arms, legs, and chin in a car accident (the 1994
accident). She had pain in her ribs, neck, and back from that
accident. 1n 1995, Weite injured her neck and back in another
car accident (the 1995 accident). She testified that at some
point before the 1995 accident, the injuries from the 1994
accident resolved themselves. She stated that a few years after
the 1995 accident, her injuries from that accident were resolved,
but she later testified that in 1998 she was still having neck
and back problems stemming from the 1995 accident.

Prior to the 2000 accident, Weite had not seen
Dr. Nierenberg for about a year. She testified that at her last
visit to the doctor in 1999, "she might have had some pain but it
wasn't major pain" and she had complained that she was having
difficulty sleeping due to lower back and neck pain. The
doctor's notes indicated that the pain was an "auto accident
flareup."

Weite testified that sometime between 1999 and the 2000
accident, she occasionally had neck or back pain, but did not
need treatment for it and had not had physical therapy.
0ccasionally, her neck pain would "flare up." When asked whether
the 2000 accident aggravated her existing back condition, Weite
testified, "Well, 1 know 1 have a . . . herniated disk and so 1

have that condition, So, yeah, to some extent 1 have this

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condition and 1 have an accident and it makes it hurt. So in
that regard, yes." On cross-examination, Momohara's counsel
asked Weite: "1sn't it correct that from 1988, perhaps even from
1981 with that herniated disk in your back, from that time on you
never got to the point where you were totally pain-free and you
never had neck pain, you always had flareups which occurred
occasionally?" Weite responded, "Yes." Weite acknowledged that
when asked by Momohara's counsel in her deposition whether
Dr. Nierenberg told her she would never return to her pre-injury
status after the 1988 accident, she replied that he had done so.

Weite had never been treated by a psychiatrist or
diagnosed with a driving phobia prior to the 2000 accident.

2. Dr. Nierenberg's testimony

Dr. Nierenberg testified that he was a physician, had
earned his medical degree from UCLA Medical School, and had
completed his residency at the University of HawaiHn 1n HawaFi,
he had been an emergency room physician for five years and then
specialized in sports medicine, which he currently practiced and
had practiced for the past twenty-seven years. He was licensed
in Hawafi, California, and Utah. He had authored articles,
including one on standards for independent medical examinations
(1MEs), that was published by the American Medical Association.
He was a board-certified independent medical examiner, which
required special training, and he had performed over two thousand
1MEs. He had been deposed as an expert witness maybe one or two
hundred times and had testified in court as an expert over ten
times. He was on the advisory board of the American Board of
1ndependent Medical Examiners and the president of the Academy of
1ndependent Medical Examiners of HawaiUH

Addressing the circuit court, Weite's counsel offered
Dr. Nierenberg as an expert in the fields of general medicine,
sports medicine, and 1MEs. Momohara's counsel objected to the
circuit court's qualifying the doctor as an expert in 1MEs on the
ground that 1MEs were not relevant to this case, The court
qualified Dr. Nierenberg in all three fields over Momohara's

counsel's objection. At a bench conference, Momohara's counsel

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objected to questioning the doctor regarding 1MEs. Weite's
counsel responded that Dr. Nierenberg would not testify that he
had conducted an IME of Weite, but he would testify about
apportionment of damages from the perspective of someone who
specialized in IMEs. Weite's counsel stated that the doctor's
training in and practice of 1MEs gave him a unique and
particularly helpful insight into apportionment. The circuit
court stated that it would not allow Dr. Nierenberg to testify
regarding apportionment; "1'm not going to allow that. 1'm not
going to allow him to start talking about apportionment

He can . . . [l]ink all the injuries to one accident. He's
perfectly capable [and] qualified to testify to that. That's as
far as 1'm going to allow it."

Dr. Nierenberg testified that he had known Weite for
approximately twenty-three years. She had been a patient at his
clinic since the early 1980s, when she had been treated by
another doctor. Dr. Nierenberg assumed her care in 1984 or 1985.

On February 9, 2000 (2/9/O0), Dr. Nierenberg examined
Weite in connection with the injuries she received in the 2000
accident.” He"diagnosed her injuries and prescribed herd
medication and physical therapy. Because he was "well aware of
the fact she's had previous accidents," he "asked her how she was
doing before the [2000] accident." Weite said "she was doing
well." Dr. Nierenberg testified that Weite had "been involved in
some previous automobile accidents and she had been doing quite
well both physically and mentally before the 2000 accident but
she said that she was having a . . . rather paralyzing type of
anxiety in some cases about driving. She was fearful of being
injured again."

Dr. Nierenberg testified that in 1981, another doctor
at the clinic had treated Weite for a probable herniated disk as
a result of the 1981 injury. Dr. Nierenberg had treated Weite
for injuries she sustained in the 1988, 1994, and 1995 accidents4

(collectively, the prior accidents).

4 Weite was initially seen at the clinic by Dr. Seaberg for the 1995
accident.

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During a recess, Weite's counsel asked the circuit
court to permit Dr. Nierenberg to testify about "his experience
as a medical examiner and how it relates to issues of
apportionment." Weite's counsel argued that Dr. Nierenberg was
well-versed in standards of apportionment because he had "done it
several thousand times." The circuit court asked Weite's counsel
if he was "going to lay some foundation about that
[Dr. Nierenberg] deals with these issues in his practice and then
you're going to ask [the doctor] for an ultimate answer in this
case, right?" Weite's counsel answered, "Correct which the law
permits." The circuit court ruled that it would allow
Dr. Nierenberg to testify as a treating physician that in his
medical opinion Weite's injuries in this case could all be
attributed to the 2000 accident because her prior injuries had
resolved themselves by the time of 2000 accident. However, the
circuit court would not allow Dr. Nierenberg to testify about the
law of apportionment or how the jury should decide apportionment
because he was not the independent medical examiner in the case.

Dr. Nierenberg5 testified that the medical charges to

“Weite"from him, QM, RAj and ORS stemming from the 2000 accident

were reasonable and necessary and were within the range commonly
charged by other providers in Hawafi at the time he treated
Weite for her injuries stemming from the 2000 accident.

Dr. Nierenberg stated that all of Weite's injuries he
treated after February 8, 2000 were related to the 2000 accident
and absolutely no other accident had contributed to those
injuries.

On cross-examination, Dr. Nierenberg testified that one
month prior to the 1988 accident, Weite was still suffering from
back pain related to the 1981 injury. After the 1988 accident,
Weite saw Dr. Nierenberg for neck pain, back strain, and tingling
in her fingers. He stated that, in general, someone with neck

pain who complained of tingling could have a neurologic injury.

5 Dr. Nierenberg testified that his charges were "[v]ery reasonable"
and, in fact, were lower than what other similar providers would have charged
for the treatments.

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Weite's lower back was more sore than it had been previously.
Dr. Nierenberg continued to treat Weite through 1991, and his
prognosis was that she would "continue to have mild to moderate
back pain for the foreseeable future with occasional flare ups
which will require increased medication and physical therapy."

1n the 1994 accident, Weite sustained injuries to her
neck and back, She was still receiving treatment for neck and
back pain when she was injured in the 1995 accident.
Dr. Nierenberg testified that Weite complained of neck, back, and
leg pain and stiffness for three years after the 1995 accident,
She also had disc protrusions in her neck in 1998. 1n 1999,
Weite was still suffering neck and back pain resulting from the
1994,accident. Dr. Nierenberg stated that Weite had occasional
flare ups, but in 1999, she had had only one. When Weite saw
Dr. Nierenberg for treatment related to the 2000 accident, she
said she was still experiencing occasional aches.

Dr. Nierenberg testified that if Weite had a "flare up"
tomorrow, it would be a result of the 2000 accident. He came to

this conclusion based on the fact that Weite had not visited a

7 physicianj requested pain medicationg or complained of pain just*“

prior to the 2000 accident.
Momohara's counsel engaged Dr. Nierenberg in the

following line of questioning:

Q. [Momohara's counsel] So, in light of her
treatment history, in light of her accident history, in
light of her periodic flare ups, in light of the fact that
she was telling you that she still had occasional aches,
isn't it correct that she had not fully recovered from the
prior accidents at the time of the 2000 accident because she
still had occasional aches?

A. [Dr. Nierenberg] Pretty long question. What do
you mean by fully?

Q. Well, 1'm asking you didn't she still have some
residual symptoms from those prior accidents at the time she
came in to see you on February 9th?

Q. 1'm asking you whether or not she told you she
still had aches.
A. Yes. We went over that before she still had aches

not had aches with a full recovery it's the lack of a full
recovery. [Sic]

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When asked on redirect examination if Weite would have
had any of the symptoms or needed any of the treatments she
received after the 2000 accident had the 2000 accident not
occurred, Dr. Nierenberg testified that "[i]t‘s possible she may
have had one or two treatments that would be similar but in total
she wouldn‘t have needed all of that" and "she may have needed
some medication, physical therapy . . ., but certainly not the
amount and frequency and duration." '

3. Motions for judgment as a matter of law
(JMDL)

At the close of Weite's case, Weite moved for JMOL
regarding apportionment. Weite's counsel maintained there was no
genuine issue of material fact regarding whether damages should
be apportioned because Momohara had not presented any expert
testimony to that effect and Weite's experts did not concede that
apportionment was warranted. Momohara's counsel countered that
Weite's testimony that she had occasional pain and Dr.
Nierenberg's testimony that Weite had occasional aches sufficed
to present a genuine issue of material fact, The circuit court
denied the JMOL motion. At the close of Momohara's case, Weite's
counsel renewed his motion for JMOL, which the circuit court
again denied.

4. Jury instructions

On April 2l, 2008, Momohara filed his proposed jury
instructions, in which he requested that the circuit court give
HCJ1 7.3 on pre-existing injury or condition. The instruction
provided in part: "1f you find that plaintff(s) was/were not
fully recovered and that the pre-existing injury or condition was

not latent at the time of the subject incident, you should make

an apportionment of damages[.]"
Also on April 21, 2008, Weite filed her proposed J1 5,
which provided: "Generally, a defendant is liable in damages to

a plaintiff for all injuries legally caused by the defendant's
negligence, including damages resulting from the aggravation of
the victim's pre-existing disease, condition, or predisposition

to injury."

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During the settling of jury instructions on May 13,
2008, Weite's counsel objected to proposed HCJ1 7.3, stating that
he did not believe Momohara's counsel had laid out a prima facie
case to warrant giving the instruction on the issue of

apportionment:

They've adduced no facts. Simply relied on cross
examination. None of the doctors who testified in this case
agreed that apportionment is appropriate. They all stated
their opinions to reasonable medical probability. No
rebuttal by any medical witness. No witness in fact
proffered by the defense . . . . Lacking foundation.

The second thing we believe this is an incomplete
statement and also confusing.

Momohara's counsel argued that medical testimony was not the only
admissible evidence regarding apportionment. The circuit court
stated that it would give the jury a modified version of the
instruction.

At trial, the circuit court gave the jury a modified
version of HCJ1 7.3.

On a special verdict form, the jury awarded Weite
$8,556.63 in special damages and $30,700.00 in general damages
"[w]ithout regard to any possible apportionment of her damages."
The jury attributed 50% of Weite's injuries to the 2000 accident.

C. POST-TRIAL

1. Motion for JMDL/New Trial

On May 23, 2008, Weite filed a "Motion for Judgment as
a Matter of Law and in the Alternative Motion for a New Trial"
(Motion for JMOL/New Trial). Weite argued that the circuit court
had erred by (1) permitting the issue of apportionment to go to
the jury without any expert medical testimony in support of
apportionment and (2) precluding Dr. Nierenberg from testifying
on the issue of apportionment, in light of his training and
experience as an independent medical examiner,

y Momohara filed an opposition memorandum, in which he
argued that Weite was not entitled to JMOL because the jury
verdict was consistent with the overwhelming evidence presented
at trial supporting apportionment of Weite's damages and there
was no basis for the circuit court to grant Weite a new trial as

she had not been substantially prejudiced by Dr. Nierenberg's

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failure to testify regarding apportionment. Weite filed a reply
memorandum.
The circuit court held a hearing on the motion on

June 17, 2008, at which the parties presented their arguments.
On June 24, 2008, the circuit court filed an order denying the
motion.

2. Weite's Motion for CAAP Sanctions,
Taxation of Costs, and Pre- and Post-
judgment Interest Against Momohara, and
Momohara's Motion to Apply the CLD to
the Jury Verdict
On May 23, 2008, Weite filed a "Motion for CAAP
Sanctions, Taxation of Costs, Prejudgment 1nterest, and Post-
Judgment Interest Against [Momohara]" (Motion Re Sanctions/Costs/
1nterest). Weite contended she was entitled to prejudgment
interest from the date of the 2000 accident to the time the
motion was filed. Weite argued that Momohara had acted in bad
faith during settlement negotiations, forcing the case to trial;
repeatedly conducted discovery after the discovery cutoff date;
and refused to depose Weite's medical experts or stipulate to the
reasonableness of Weite's medical treatment and bills, forcing
Weite to litigate that issue. With regard to her request for CAAP
sanctions against Momohara, Weite claimed Momohara was subject to

sanctions pursuant to Hawaii Arbitration Rules (HAR) 256 and

6 HAR 25 provides:

Rule 25. THE PREVAILING PARTY IN THE TRIAL DE NOVO; COSTS.

(A) The "Prevailing Party" in a trial de novo is the party
who (1) appealed and improved upon the arbitration award by 30% or
more, or (2) did not appeal and the appealing party failed to
improve upon the arbitration award by 30% or more. For the
purpose of this rule, "improve" or "improved" means to increase
the award for a plaintiff or to decrease the award for the
defendant.

(B) The "Prevailing Party" under these rules, as defined
above, is deemed the prevailing party under any statute or rule of
court. As such, the prevailing party is entitled to costs of
trial and all other remedies as provided by law, unless the Court
otherwise directs.

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26,7 including payment of Weite's attorneys' fees and costs,
because as the appealing party from CAAP arbitration, Momohara
had not fulfilled his obligation to improve the CAAP award by 30%
at trial. Weite illustrated the difference between the CAAP

award and the judgment amount as follows:

CAAP award total: $27,808 62
Award less 30%: $19,466.03
Trial Verdict: $39,256.63
Judgment (less 50% $l9,628.32
apportionment):

(Footnotes omitted.) Weite argued that "Momohara needed to
reduce the verdict to $19,466.03 or less" to avoid incurring
sanctions, 1n a footnote, Weite indicated that pursuant to HRS

§ 431 10C~301.5, a CLD of $6,808.62 was not to be deducted until
after the CAAP award total was reduced by 30%. Weite maintained
she was entitled to post-judgment interest until the judgment was
paid in full, pursuant to HRS § 478-3 (2008 Repl.).

7 HAR 26 provides:

Rule 26. SANCTIONS FOR EAILING TO PREVAIL IN THE TRIAL DE NOVO

(A) After the verdict is received and filed, or the court's
decision rendered in a trial de novo, the trial court may, in its
discretion, impose sanctions, as set forth below, against the non-
prevailing party whose appeal resulted in the trial de novo.

(B) The sanctions available to the court are as follows:

(l) Reasonable costs and fees (other than attorneys' fees)
actually incurred by the party but not otherwise taxable under the
law, including, but not limited to, expert witness fees, travel
costs, and deposition costs;

(2) Costs of jur0rs;
(3) Attorneys‘ fees not to exceed $15,000;

(C) Sanctions imposed against a plaintiff will be deducted
from any judgment rendered at trial. 1f the plaintiff does not
receive a judgment in his or her favor or the judgment is
insufficient to pay the sanctions, the plaintiff will pay the
amount of the deficiency. Sanctions imposed against a defendant
will be added to any judgment rendered at trial.

(D) 1n determining sanctions, if any, the court shall

consider all the facts and circumstances of the case and the
intent and purpose of the [CAAP] in the State of Hawafi.

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On May 29, 2008, Momohara filed a "Motion to Apply the
Covered Loss Deductible to the Jury Verdict" (Motion Re CLD).
Momohara asked the circuit court to apply HRS § 431:10C-301.5 in
calculating Weite's recovery and deduct the CLD from the verdict
amount. Momohara claimed that Weite's recovery was actually
$13,090.59, or 50% of the jury's verdict of $19,628.32 reduced by
the CLD, which was actually $6,537.73.

On June 9, 2008, Weite filed a memorandum in opposition
to the Motion Re CLD. Weite did not dispute Momohara's assertion
that the PIP provider had actually paid $6,537.73 in P1P
benefits. She agreed the CLD should be applied, but argued that
applying the full CLD to the jury award would be unfair to her
and result in a windfall to Momohara. Citing to HRS § 431:10C-
301.5 and State Farm Mutual Automobile 1nsurance Co. v. Gepaya,
103 Hawafi 142, 147, 80 P.3d 321, 326 (2003), Weite argued that
"because the jury allocated 50% of [Weite's] damages to
preexisting causes, the application of the full CLD would
actually reduce [Weite's] award of general damages, in violation
of the statute." Weite also argued that whether the CLD is
applied pre- or post-judgment, the determination of who is the
"prevailing party" pursuant to HAR 25 is made before the
application of the CLD to the CAAP award or the judgment award.
The circuit court granted the Motion Re CLD.

On June 9, 2008, Momohara filed an opposition
memorandum to the Motion Re Sanctions/Costs/Interest, in which he
argued that he clearly improved upon the Arbitration Award by 30%
or more at trial. First, Momohara claimed that the net CAAP
award was actually $21,000, which represented the special and
general damages award of $27,808.62 minus the CLD of $6,808.62.
Momohara cited to kim v. Reilly, 105 Hawai‘i 93, 94 P.:-sd 643
(2004), for his assertion that the total CAAP award represented
the damages award minus the CLD amount. Second, Momohara
claimed, as he had in his Motion Re CLD, that Weite's recovery at

trial was actually $13,090.59, or 50% of the jury's verdict of

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$19,628.32, reduced by the CLD of $6,537.73.8 Momohara cited to
HRS § 431:10C-301.5 in support of his assertion that the verdict
amount had to be reduced by the CLD amount. Given the foregoing,
Momohara contended, he had improved upon the CAAP award by 37%
and was the "prevailing party" pursuant to HAR 25,

Weite filed a reply memorandum in support of the Motion
Re Sanctions/Costs/Interest. She argued that Momohara's
calculation was inconsistent with HRS § 431:10C-301.5 and the
reference to "award" in the statute “clearly refers to the amount
prior to the application of the CLD."

On June 17, 2008, the circuit court held a hearing on
both motions. The circuit court orally denied the Motion Re

Sanctions/Costs/Interest and granted the Motion Re CLD:

THE COURT: All right.' 1n the Court's view, even if 1
didn't have Kim, looking at the plain language of 431:10C-
301.5, as 1 see it and what makes sense to the Court, 1'm
persuaded by [Momohara's] arguments in this case, but in the
Court's view . . . Kim is a further authority for that
interpretation of how the statute should be applied. So
. . . everything seems to hinge on the interpretation,
basically, of the statute.

So the Court is going to respectfully deny [the Motion
Re Sanctions/Costs/Interest] for the reasons essentially set
forth by the defense[.]

Likewise, the Court is going to grant [Momohara's]
motion to apply the [CLD] to the jury verdict in the manner
set forth by the defense in their moving papers.

On June 24, 2008, the circuit court filed an order
granting the Motion Re CLD and an order regarding the Motion Re
Sanctions/Costs/Interest, in which the court denied the motion
with respect to the issues of CAAP sanctions, taxation of costs,
and pre-judgment interest, but not post-judgment interest,

3. Taxable Costs

0n June 25, 2008, Momohara filed a "Verified Bill of
Costs," in which he claimed he had incurred total costs of
$2,619.73. On June 30, 2008, Weite filed a "Motion to Deny

Taxable Costs to [Momohara] and to Award Taxable Costs to

8 1n a footnote, Momohara argued that a representative of Weite's P1P
provider had clarified "that the amount of P1P benefits paid" was actually
$6,537 73, "not the $6,808.62 amount previously reflected in [the PIP
provider's] records and utilized in the arbitration award."

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[Weite]" (Motion Re Taxable Costs). Weite contended, inter alia,
that an award of costs to Momohara would be inequitable to her.
Momohara filed a memorandum in opposition, and Weite filed a
reply. On July 22, 2008, the circuit court held a hearing, at
which the court orally denied the motion, stating: "Without
subscribing to either party's take on what the equities are or
aren't, 1'm going to respectfully deny the motion. [Momohara is]
the prevailing part[y] here and 1 think the costs are

reasonable " On August 4, 2008, the circuit court filed an order
denying the Motion Re Taxable Costs.

II.
A. Summary Judgment
The appellate court reviews "the circuit court's grant

or denial of summary judgment de novo." Querubin v. Thronas, 107
Hawaid.48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v.
Aloha Plastic Recycling, Inc., 105 Hawafi 490, 501, 100 P.3d 60,
71 (2004)). Accordingly, on appeal, 1

an order of summary judgment is reviewed under the same
standard applied by the circuit courts. Summary judgment is
proper where the moving party demonstrates that there are no
genuine issues of material fact and it is entitled to a
judgment as a matter of law. 1n other words, summary
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 of material fact and the moving party is entitled to a
judgment as a matter of law.

1ddings v. Mee-Lee, 82 Hawaifi 1, 5, 919 P.2d 263, 267 (1996)
(quoting Heatherlv v. Hilton Hawaiian Vill. Joint Venture, 78
HawaFi 351, 353, 893 P.2d 779, 781 (1995)); see also HRCP Rule
56(c).9

9 HRCP Rule 56(c) provides, in relevant part:

Rule 56. SUMMARY`JUDGMNT.

(c) Motion and proceedings thereon. . . . The judgment
sought shall be rendered 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. A summary judgment, interlocutory in
character, may be rendered on the issue of liability alone
although there is a genuine issue as to the amount of damages.

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On a motion for summary judgment (MSJ), "[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." Crichfield v.
Grand Wailea Co., 93 HawaiH.477, 482-83, 6 P.3d 349, 354-55
(2000) (quoting Tavlor v. Gov't Emplovees 1ns. Co., 90 HawaiT_
302, 305, 978 P.2d 740, 743 (l999)).

1n reviewing a circuit court's grant or denial of an
MSJ, the appellate court "must view all of the evidence and the
inferences drawn therefrom in the light most favorable to the
party opposing the motion." Crichfield, 93 HawaFi at 483, 6
P.3d at 355 (brackets omitted) (quoting Taylor, 90 Hawafi at
305, 978 P.2d at 743). "[A]ny doubt concerning the propriety of
granting the motion should be resolved in favor of the non-moving
party." GECC Fin. Corp. v. Jaffarian, 79 Hawafi 516, 521, 904
P.2d 530, 535 (App. 1995).

In deciding an MSJ, a circuit court must keep in mind

an important distinction:

A judge ruling on a motion for summary judgment cannot
summarily try the facts; his role is limited to applying the
law to the facts that have been established by the
litigants' papers. Therefore, a party moving for summary
judgment is not entitled to a judgment merely because the
facts he offers appear more plausible than those tendered in
opposition or because it appears that the adversary is
unlikely to prevail at trial. This is true even though both
parties move for summary judgment. Therefore, if the
evidence presented on the motion is subject to conflicting
interpretations, or reasonable men might differ as to its
significance, summary judgment is improper.

Kajiya v. Dep't of Water Supplv, 2 Haw. App. 221, 224, 629 P.2d
635, 638-39 (1981) (quoting 10 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure: Civil § 2725 (1973)).
1n general, "summary judgment must be used with due
regard for its purpose and should be cautiously invoked so that
no person will be improperly deprived of a trial of disputed
factual issues." Miller v. Manuel, 9 Haw. App. 56, 65-66, 828
P.2d 286, 292 (1991) (internal quotation marks and citation
omitted). '
B. Grant/Denial of Motion in Limine

The granting or denying of a motion in limine is
reviewed for abuse of discretion. The denial of a motion in

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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 in the admission of evidence
at trial.

MiyamOto V. Lum, 104 HaWafi l, 7, 84 P.3d 509, 515 (2004)
(internal quotation marks; citations, ellipsis, and brackets
omitted).
C. Admission of Opinion Evidence (Expert Testimony)
"Generally, the decision whether to admit expert

testimony rests in the discretion of the trial court. To the
extent that the trial court's decision is dependant upon
interpretation of court rules, such interpretation is a question
of law, which this court reviews de novo." Udac v. Takata CorD.,
121 HawaFi l43, l48, 214 P.3d ll33, ll38 (App. 2009), g§;§;
rejected, No. 28328, 2010 WL 219307 (HawaFi Jan. 2l, 2010)
(internal quotation marks and citation omitted).

D. 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.

State v. ArCeO, 84 Hawai‘i l, ll, 928 P.2d 843, 853 (1996)
(citations, internal quotation marks, and brackets omitted).

Tabieros v. Clark Equip. Co., 85 Hawafi 336, 350, 944 P.2d 1279,
1293 (l997).
E. Special Verdict

A trial court has complete discretion whether to
utilize a special or general verdict and to decide on the
form of the verdict as well as the interrogatories submitted
to the jury provided that the questions asked are adequate
to obtain a jury determination of all factual issues
essential to judgment. Although there is complete
discretion over the type of verdict form, the questions
themselves may be so defective that they constitute
reversible error.

Montalvo v. Lapez, 77 Hawafi 282, 292, 884 P.2d 345, 355 (1994)

(internal quotation marks and citations omitted).

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F. Statutory Interpretation

We review the circuit court's interpretation of a
statute de novo. state v. Pecheco, 96 HawaFi e3, 94, 26
P.3d 572, 583 (2001). Our statutory construction is guided
by established rules:

When construing a statute, our foremost
obligation is to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. And we must read statutory language in the
context of the entire statute and construe it in a
manner consistent with its purpose.

Id. at 94-95, 26 P.3d at 583-84.

Gepaya, 103 Hawafi at 145, 80 P.3d at 324 (quoting Troyer v.
AdamS, l02 HaWaiU.399, 409, 77 P.3d 83, 93 (2003)).
G. Prejudgment Interest

"Prejudgment interest, where appropriate, is awardable
under HRS § 636-16 (1993) in the discretion of the court."
page v. Domino's Pizze, Inc., 80 HawaFi 204, 203, 903 P.2d

552, 556 (App. 1995) . . . (internal quotation marks
omitted). The "well-established" purpose of the statute is
tO

allow the court to designate the commencement date of
interest in order to correct injustice when a judgment
is delayed for a long period of time for any reason,
including litigation delays. Another acknowledged
purpose of HRS § 636-16 is to discourage recalcitrance
and unwarranted delays in cases which should be more
speedily resolved. A trial court's denial of
prejudgment interest is usually affirmed if the party
requesting the award is found to have caused the
delay, or if there is no showing that the non-moving
party's conduct unduly delayed the proceedings of the
case.

Id. at 209, 908 P.2d at 557 (citations, brackets; and
ellipses [in original] omitted).

Liberty Mut. Ine. co. v. sentinel Ine. ce., 120 Hawai‘i 329, 349,
205 P.3d 594, 614 (App. 2009), cert. rejected, No. 27429, 2009 WL
2759860 (Hawafi Aug. 25, 2009) (footnotes and brackets in
original omitted).

H. Imposition of CAAP Sanctions

Under the plain language of HAR 26, it is within the
discretion of the court whether to award sanctions and if so, for
what amount. Richardson v. Sport Shinko (Waikiki Corp.), 76
Hawafi 494, 5ll, 880 P.2d l69, l86 (l994).

I. Plain Error

The plain error doctrine represents a departure from the
normal rules of waiver that govern appellate review, and, as

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such, . . . an appellate court should invoke the plain error
doctrine in civil cases only when justice so requires. As
such, the appellate court's discretion to address plain
error is always to be exercised sparingly.

0kada`Truckinq Co. v. Bd. of water suvnlv, 97 Hawafi 450,g458,
40 P.3d 73, 81 (2002) (internal quotation marks, citations, and
ellipsis in original omitted). `
III.
A. APPEAL
1. MPSJ Re Medical Bills and MIL Re Prior
Accidents

Weite contends the circuit court erred by denying the
MPSJ Re Medical Bills and denying the MIL Re Prior Accidents on
the issue of apportionment and allowing that issue to go to the
jury because Momohara presented no medical expert testimony
refuting Weite's treating physicians' opinions that her injuries
were entirely caused by the 2000 accident.

a. Case law on apportionment

1n Bachran v. Morishige, 52 Haw. 61, 62, 469 P.2d 808,
810 (1970), in 1964, Bachran was in her car when it was struck by
a vehicle driven by Morishige (the 1964 accident). 1n 1962,
Bachran had been injured in a previous automobile accident (1962
accident). 1Q; at 63, 469 P.2d at 810. After the 1964 accident,
Bachran sought treatment from Dr. Poulson for injuries she
claimed had resulted from that accident. ld; Morishige admitted
liability for the 1964 accident. ;g; at 62, 469 P.2d at 810.
Bachran filed a lawsuit against Morishige, and the case was tried
by a jury on the issue of damages. 1d;

At trial, Bachran called Dr. Poulson to testify as an
expert witness regarding his treatment of her. ;Q¢ at 63 & 67,
469 P.2d at 810 & 812. Dr. Poulson testified that Bachran was
suffering from a degenerated cervical disc, of which both the
1962 and 1964 accidents had been contributing causes, 1Q4 at 63,
469 P.2d at 810. On cross-examination, Morishige's counsel asked
Dr. Poulson, "Could you give me such a fair or just apportionment
on the basis of a medical probability?" ;d4 at 67, 469 P.2d at
812 (ellipsis omitted). Bachran's counsel objected on the ground

that an opinion on causation must be based on reasonable medical

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certainty. 1dp The trial court sustained the objection to
prevent "too much conjecture." 1d; The court also refused to
permit Morishige to cross-examine Dr. Poulson and another of
Bachran's expert witnesses, a doctor who also had treated her
after the 1964 accident, on whether the damages could be
apportioned between the 1962 and 1964 accidents. ldL at 63 & 66,
469 P.2d at 810 & 812. The trial court precluded cross-
examination of the doctors on the ground that "the facts to be
deduced from the questions were irrelevant and immaterial." ;d4
at 66, 469 P.2d at 812. The court orally ruled that Morishige
was legally responsible and liable for all of Bachran's injuries
because "a tortfeasor takes the man as he finds him." 1d; at 66,
469 P.2d at 811.
The jury decided the issue of damages and entered a

verdict amount in Bachran's favor. ld; at 62, 469 P.2d at 810.
Morishige appealed, arguing, among other things, that the court
improperly ruled that he was legally responsible and liable for
all of Bachran's injuries. ld4 On appeal, the Hawafi Supreme
Court agreed with Morishige and held that the jury should have
determined the factual issue of whether Bachran had fully
recovered from the injuries she suffered in the 1962 accident and
was not experiencing any pain, suffering, or disability by the
time of the 1964 accident. ;QL at 66, 469 P.2d at 811. The
supreme court stated that "it is for the trier of facts . . . to
make a legal determination of the question of causation." ;dL at
68, 469 P.2d at 812. Hence, the supreme court concluded that the
trial court had erred by ruling that Morishige was liable for all
of the damages, which precluded the jury's consideration of the
issue. ;d; at 66, 469 P.2d at 811. The supreme court held that

where a person has suffered injuries in a prior accident and
has fully recovered, and later he is injured by the
negligence of another person and the injuries suffered in
the later accident bring on pain, suffering and disability,
the proximate cause of the pain, suffering and disability is
the negligence of that other person. 1n such circumstances
that other person should be liable for the entire damages.

1d. at 65, 469 P.2d at 811. The court further held, on the other
hand, that if Bachran "had not fully recovered from the injuries

she suffered in the 1962 accident and in 1964 she was still

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experiencing pain and suffering and was disabled from such
injuries, the total damages would not be the proximate result of
the 1964 accident. Then . . . the damages should be
apportioned." 1Q4 at 66, 469 P.2d at 811-12.

The supreme court concluded that the trial court erred
by refusing to permit Morishige to cross-examine the doctors on
the issue of apportionability of the damages. ;d; at 66, 469
P.2d at 812. The supreme court stated that if in 1964 Bachran
was still suffering from pain and was disabled from the injuries
she had received in the 1962 accident, the testimony would have
been relevant, material, and "vital to the issue to be decided by

the jury." 1d. The supreme court held:

Where the subject matter is technical, scientific or
medical and not of common observation or knowledge, expert
testimony is allowed into evidence. Such testimony is to
aid the jury in the determination of the issues involved and
to provide a sufficient basis for the conclusion to be drawn
by the jury rather than by conjecture and speculation.
Expert testimony is not conclusive and like any testimony,
the jury may accept or reject it.

1d; at 67, 469 P.2d at 812 (citations omitted).
b. MPSJ Re Medical Bills

On an MSJ, "[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." Crichfield, 93 Hawafi at 482-83, 6 P.3d at 354-55
(quoting Taylor, 90 Hawafi at 305, 978 P.2d at 743). Damages
comprise an essential element of a negligence claim. §§§ Cho v.
State, ll5 Hawafi 373, 379 n.ll, 168 P.3d l7, 23 n.ll (2007)
("It is well-established that, in order for a plaintiff to
prevail on a negligence claim, the plaintiff is required to prove
all four of the necessary elements of negligence: (l) duty;
(2) breach of duty; (3) causation; and (4) damages."). Whether
all or some of Weite's injuries were caused by the 1988,\1994,
and/or 1995 accidents was material to whether Weite's damages
should be apportioned.

Furthermore, there was a genuine issue regarding
whether Weite's injuries were entirely caused by the 2000
accident. 1n her MPSJ Re Medical Bills, Weite argued there was

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no genuine issue of fact regarding apportionment because
Drs. Nierenberg and Lind both declared that her injuries
following the 2000 accident were entirely attributable to the
2000 accident and Momohara did not have any medical testimony to
refute those assertions. Momohara argued in his memorandum in
opposition that there was a genuine issue of material fact with
regard to causation because Weite had been injured in the prior
accidents. To his memorandum, he attached a transcript of
Weite's deposition testimony in which she stated that the prior
accidents had resulted in injuries to her neck and back and that,
after her prior accidents, she continued to have intermittent and
periodic pain in her neck and back, including as of the time of
the 2000 accident. 1n reviewing a circuit court's grant or
denial of an MSJ, the appellate court "must view all of the
evidence and the inferences drawn therefrom in the light most
favorable to the party opposing the motion." Crichfield, 93
Hawaifi at 483, 6 P.3d at 355 (quoting Taylor, 90 HawaiYi at 305,
978 P.2d at 743). Weite cites to no authority in this
jurisdiction, and we find none, for the notion that in order to
demonstrate that an issue of material fact exists, the non-movant
must present expert testimony in his or her favor on that issue.
c. MIL Re Prior Accidents

1n her MIL Re Prior Accidents, Weite moved the circuit
court for an order excluding from trial any argument regarding
the need for an apportionment of her injuries to preexisting
causes or prior accidents and to exclude any reference at trial
to prior accidents. She claimed that Momohara was precluded from
making any arguments regarding apportionment because (1) he had
not retained any expert witnesses to refute Drs. Nierenberg and
Lind's declaration statements that her injuries after the 2000
accident were entirely attributable to that accident and (2) he
did not depose Drs. Nierenberg and Lind. Consequently, Weite
maintained, "there is no competent evidence that can serve as the
basis for an apportionment." At trial, Weite had the burden of
proving that her injuries were caused by the 2000 accident. §e§
Montalvo, 77 Hawafi at 296, 884 P.2d at 359 ("[1]n order to

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recover damages, a plaintiff has the burden of proving that the
damages were legally caused by a defendant's negligence.");
Ma1ani v. C1app, 56 HaW. 507, 5l7, 542 P.2d 1265, 1271 (1975)
("[T]he burden of proving damages is always upon the
plaintiff."). Momohara was entitled to cross-examine

Dr. Nierenberg regarding the cause of Weite's injuries after the
doctor testified that the injuries for which he treated Weite
following the 2000 accident were all attributable to that

accident. Hawaii Rules of Evidence (HRE) Rule 702.1(a) provides:

Rule 702.l Cross-Examination of experts. (a) General.
A witness testifying as an expert may be cross-examined to
the same extent as any other witness and, in addition, may
be cross-examined as to (1) the witness‘[s] qualifications,
(2) the subject to which the witness'[s] expert testimony
re1ates, and (3) the matter upon which the witness'[s]
opinion is based and the reasons for the witness'[s]
opinion.

The jury was entitled to determine the cause of Weite's
injuries and the amount of damages, if any, to be awarded. §§§
DZurik V. Tamura, 44 HaW. 327, 330, 359 P.2d l64, 165 (1960)
("[1]t is for the trier of facts, not the medical witnesses, to
make a legal determination of the question of causation."); Ka;Q
v. Funari, 118 HaWafi 375, 381, 191 P.3d 1052, 1058 (2008)
(internal quotation marks, citation, brackets in original, and
ellipsis omitted) ("[T]he proper amount of damages to be awarded
is within the exclusive province of the jury, since jurors are
the sole judges of all disputed questions of fact."). Further,
the jury had the discretion to discredit Drs. Nierenberg and
Lind's respective testimonies that Weite's injuries after the
2000 accident were entirely caused by that accident. See e. .,
Ass'n of Apt. Owners of Wailea Elua v. Wailea Resort Co., 100
HaWafi 97, 117-18, 58 P.3d 608, 628-29 (2002) (internal

‘ quotation marks and citation omitted) ("[1]t is within the

province of the trier of fact to weigh the evidence and to assess
the credibility of the witnesses.").

Weite cites to no authority in this jurisdiction, and
we find none, to support her assertion that "[t]he law requires
that a defense claim for apportionment be supported by expert

medical testimony." Given the foregoing, the circuit court did

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not abuse its discretion in denying the MPSJ Re Medical Bills and
denying the MIL Re Prior Accidents on the issue of
apportionment.“
2. Dr. Nierenberg's testimony, apportionment
Weite contends the circuit court erred by refusing to

allow Dr. Nierenberg to provide his expert opinion as an
independent medical examiner on the issue of apportionment.

Weite maintains the circuit court should have allowed

Dr. Nierenberg to explain

his opinion regarding [Weite's] injuries in the context of
an apportionment, i.e. Mbntalvo, how an apportionment is
derived, that he had performed such apportionments several
thousand times, and the definition and importance of the
findings that [Weite] was "asymptomatic" and "latent" with
respect to her neck and back injuries prior to the accident.

At trial, Weite's counsel proffered Dr. Nierenberg's
testimony on apportionment, explaining that the doctor would
testify about apportionment from the perspective of someone who
specialized in 1MEs and the doctor's training in and practice of
1MEs gave him a unique and particularly helpful insight into
apportionment. The circuit court ruled that it would not allow
Dr. Nierenberg to testify on apportionment, but he could "[l]ink
all the injuries to one accident." Outside the presence of the
jury, Weite's counsel again asked the circuit court to permit
Dr. Nierenberg to testify about "his experience as a medical
examiner and how it relates to issues of apportionment." The
circuit court ruled that it would allow Dr. Nierenberg to testify
as a treating physician that in his medical opinion Weite's
injuries could all be attributed to the 2000 accident; however,
the court would not allow Dr. Nierenberg to testify about the law

of apportionment or how the jury should decide apportionment.

While witnesses may be permitted, in a proper case, to
give an opinion on an ultimate fact involved in the case,
there is a strong consensus among the jurisdictions,
amounting to a general rule, that witnesses may not give an
opinion on a question of domestic law or on matters which
involve questions of law. The fundamental problem with

w The HawaFi Supreme Court has, however, stated that the determination
of whether a plaintiff has fully recovered from a pre-existing condition or
whether such condition was dormant or latent is a question of fact for which
medical testimony is especially appropriate. Montalvo, 77 HawaFi at 299, 884
P.2d at 362 (citing Bachran, 52 Haw. at 66, 469 P.2d at 811).

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testimony containing a legal conclusion is that conveying
the witness'[s] unexpressed, and perhaps erroneous, legal
standards to the jury amounts to a usurpation of the court's
responsibility to determine the applicable law and to
instruct the jury as to that law. Expert as well as
nonexpert witnesses are subject to the prohibition against
testifying as to a question of law. The testimony of expert
witnesses is, in general, confined to matters of fact, as
distinguished from matters of law.

Create 21 Chuo, 1nc. v. Southwest SlopesJ 1nc., 81 Hawafi 512,
522 n.4, 918 P.2d 1168, 1178 n.4 (App. 1996) (emphasis in
original).

1n the instant case, we see no reason why Weite would
have offered Dr. Nierenberg's proffered testimony except to "give
an opinion . . . on matters which involve questions of law,"
i.e., whether Weite's damages should be apportioned. 1ndeed, at
trial, when the circuit court asked Weite's counsel if he was
"going to lay some foundation about that [Dr. Nierenberg] deals
with these issues in his practice and then you're going to ask
[Dr. Nierenberg] for an ultimate answer in this case right?",
Weite's counsel answered, "Correct which the law permits." The
circuit court permitted Dr. Nierenberg to testify extensively
regarding Weite's injuries after the prior accidents and the 2000
accident, including his opinion that Weite's injuries following
the 2000 accident were caused entirely by the 2000 accident. The
circuit court later gave the jury a detailed instruction.

Weite does not explain how she was prejudiced by the
circuit court's denial of Dr. Nierenberg's proffered evidence,
and we fail to see how such denial could have prejudiced her.

Given the foregoing, the circuit court did not abuse
its discretion when the court prohibited Dr. Nierenberg from
testifying about apportionment.

1 3. HCJI 7.3 and Weite's proposed J1 5

Weite first contends the circuit court should not have
given jury instructions on apportionment because there was no
competent evidence justifying apportionment in this case. Given
our holding in Part 111.A.1 that the circuit court did not err
when it denied the MPSJ Re Medical Bills and MIL Re Prior
Accidents on the issue of apportionment, we need not address this

point,

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Weite also contends the circuit court erred by refusing
to give Weite's proposed J1 5 on the "eggshell skull" (eggshell
skull) rule. The proposed instruction provided: "Generally, a
defendant is liable in damages to a plaintiff for all injuries
legally caused by the defendant's negligence, including damages
resulting from the aggravation of the victim's pre-existing
disease, condition, or predisposition to injury."

Weite argues that the circuit court's instruction on
apportionment did "not consider or explain the law of damages
attributed to [Momohara's] aggravation of [Weite's] injuries."
Weite maintains that without her proposed J1 5, the circuit
court's apportionment instruction was misleading and, thus,
prejudicially insufficient. To support this argument, Weite

cites to Montalvo, where the Hawaii Supreme Court stated that

it is well settled that a tortfeasor is liable not only for
damages resulting from direct and unique injuries inflicted
on the victim, but also for damages resulting from the
aggravation of the victim's pre-existing disease, condition,
or predisposition to injury. Such predisposition to injury
or other special sensitivity is often involved in the
context of the so-called thin skull or eggshell skull
plaintiff.

77 Hawafi at 294, 884 P.2d at 357 (internal quotation marks and
citation omitted). The portion of Montalvo to which Weite cites

is not dispositive in this case.'
The modified HCJI 7.3 and HCJI 8.11, along with the
special verdict form given to the jury, made it unnecessary and

inappropriate for the circuit court to give Weite's proposed

JI 5.
4. Special verdict form

The circuit court gave the jury the following modified

version of HCJI 7.3:

In determining the amount of damages, if any, to be
awarded to [Weite], you must determine whether [Weite] had
an injury or condition which existed prior to the
February 8, 2000 incident. 1f so, you must determine
whether [Weite] was fully recovered from the preexisting
injury or condition or whether the preexisting injury or
condition was latent at the time of the subject incident. A
preexisting injury or condition is latent if it was not
causing pain, suffering or disability at the time of the
subject incident.

If you find that [Weite] was fully recovered from the
preexisting injury or condition or that such injury or

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(Emphasis'added.)

8.11:

damages as will fairly and reasonably compensate [Weite]

injuries or damages legally caused by

provided:

"Compensation must be reasonable.

condition was latent at the time of the subject incident,
then you should not apportion any damages to the preexisting
injury or condition.

If you find [Weite] was not fully recovered and that
the preexisting injury or condition was not latent at the
time of the subject incident, you should make an
apportionment of damages by determining what portion of the
damages is attributable to the preexisting injury or 4
condition and limit your award to the damages attributable
to the injury caused by [Momohara].

1f you are unable to determine, by a preponderance of
the evidence, what portion of the damages can be attributed
to a preexisting injury or condition, you may make a rough
apportionment.

If you are unable to make a rough apportionment, then
you must divide the damages equally between the preexisting
injury or condition and the injury caused by [Momohara].

The circuit court also gave the jury HCJI

You may award only such
for the
[Momohara's] negligence."

The special verdict form, as filled out by the jury,

Question No. 1. Was the negligence of [Momohara] a
legal cause of the injuries and damages claimed by [Weite]?

Yes § No

1f you answered "Yes" to Question No. 1, then go on to
answer Question No. 2. If you have answered “No" to
Question No. 1, then please sign and date this document and
call the Bailiff.

Without regard to any possible
what is the total amount of

Question No. 2.
apportionment of her damages,
[Weite's] damages?

Special Damages $ 8,556.63

General Damages $30,700.00
Now go on to Question No. 3.

Question No. 3. what percentage of [Weite's] damages,

if any, is attributable to any of the following injuries:
a. February 8, 2000 motor vehicle accident; 50%

b. 1995 motor vehicle accident; 103

c. 1994 motor vehicle accident; 25%

d. 1988 motor vehicle accident; 5%

e. 1981 “lifting carpet" accident; 10%
Total (Note: The total must equal 100%) 100%

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(Emphasis added.)

Weite contends the circuit court erred by placing
separate apportionment questions on the special verdict form,
which, in combination with the erroneous submission of the jury's
instructions, created confusion and allowed the jury to apportion
Weite's damages twice. She claims the jury's answer to Question
No. 2 represented a post-apportionment amount, which the jury
then apportioned a second time in Question No. 3. Weite also
argues that the jury instructions on apportionment -- i.e.,
"limit your award to the damages attributable to the injury
caused by [Momohara]" and only award "such damages as will fairly
and reasonably compensate [Weite] for the injuries or damages
legally caused by [Momohara's] negligence" -- combined with the
instruction on the special verdict to award damages "[w]ithout
regard to any possible apportionment" and then determine "[w]hat
percentage of [Weite's] damages, if any, is attributable to any
of the following injuries" was so confusing and misleading as to
render the instructions fatally defective. Last, Weite asserts
that the "apportionment questions on the special verdict form
were irrelevant and unnecessary." Weite cites to Kato v. Funari
to support these arguments.

In §a;Q, the HawaFi Supreme Court summarized the

following law regarding jury instructions:

"[T]he proper amount of damages [to be awarded] . . . is
within the exclusive province of the jury, since jurors are
the sole judges of all disputed questions of fact." Knodle
v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d
377, 383 (1987) (citation, internal quotation marks, and
original brackets omitted).

When, as here, the trial court "require[s] a jury to'

return only a special verdict in the form of a special
written finding upon each issue of fact," HRCP [Rule]

49(a) [(2007)] compels the judge to "give to the jury

such explanation and instruction concerning the matter
thus submitted as may be necessary to enable the jury

to make its findings upon each issue."

Id. at 383, 742 P.2d at 382 (some brackets in original and
some added) (footnote omitted). Put another way,

the [trial court] should explain the law of the case,
point out the essentials to be proved on one side or
the other, and bring into view the relation of the
particular evidence adduced to the particular issues
involved. And all of this must be done in such a
manner that the jury will not be misled.

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Id. at 384, 742 P.2d at 382-83 (emphasis added) (citations,
internal quotation marks, ellipses, and original brackets
omitted). we have also stated that, "[i]n analyzing alleged
errors in special verdict forms, the instructions and the
interrogatories on the verdict form are considered as'a
whole." Gonsalves [v. Nissan Motor Corp. in Hawaii, Ltd.],

100 HawaiH_[149,] 15a, 58 P.3d [l196,] 1205 [(2002)]
(quoting Montalvo, 77 Hawafi at 292, 884 P.2d at 355)
(emphasis added) (format altered). Moreover,

[a]s a rule, juries are presumed to be reasonable and
follow all of the trial court's instructions, This
rule represents a reasonable practical accommodation
of the interests of the parties involved. . .
Therefore, it is not an "inference," . . . that the
jury followed one instruction as opposed to another[.]

Myers v. South Seas Corp., 76 Hawafi 161, 165, 871 P.2d
1231, 1235 (1994) (emphases added) (citations, original
brackets, and some internal quotation marks omitted).

118 Hawai‘i at 381-82, 191 P.3d at 1058-59 (fOOtnOte Omitted;
expanded case cite in Gonsalves added).
Kato's vehicle was struck by a vehicle driven by

Funari. Ka;Q, 118 HawaFi at 376-77, 191 P.3d at 1053-54. Kato
filed a complaint against Funari, alleging that she sustained
injuries in the accident due to Funari's negligence in operating
his vehicle. ;dp at 377, 191 P.3d at 1054. The only issues
before the jury related to legal causation, damages, and the
apportionment of damages resulting from Kato's pre-existing
injuries and the injuries she sustained in the subject accident.
lQ¢ The Circuit Court of the Second Circuit (Second Circuit
Court) provided the jury with a special verdict form. 1dg
Question No. 1 on the verdict form read: "Was the negligence of
Funari a legal cause of injury to Kato? Answer 'Yes' or 'No' in
the space provided below." 1d; (brackets omitted). The jury
answered, "Yes." 1d; at 378, 191 P.3d at 1055. Question No. 2
read:' "What were Kato's total damages." lQ; at 377, 191 P.3d at
1054 (brackets omitted). The jury found that the total damages
amounted to $59,536.55. ;Qp at 378, 191 P.3d at 1055. Question
No. 3 read: "Were any of the injuries or pain suffered by Kato
after the accident caused by conditions which existed and were
symptomatic before the accident?". lQ; The jury answered,
"Yes." ;dp Question No. 4 read: "State what percentage of the

injuries[.]" 1d. The jury responded, "90%". 1d.

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After the Second Circuit Court denied her motion to
alter or amend the judgment or, in the alternative, for a new
trial, Kato appealed to this court, arguing that "based upon the
jury instructions and the special verdict form, the amount of
$59,536.55 represented a post-apportionment, not a pre-
apportioned award." ;Q; at 379-80, 191 P.3d at 1056-57. This
court disagreed and affirmed the Second Circuit Court's decision,
holding "that there was no inconsistency between the jury
instructions and the special verdict." 1dg at 380, 191 P.3d at
1057. Kato applied for a writ of certiorari, which the Hawafi

Supreme Court granted. 1d;

Before the supreme court, Kato primarily argued that
the Second Circuit Court erred by "reducing the jury's damages
award of $59,536.55 by ninety percent inasmuch as the jury had
already apportioned the award to account for Kato's pre-existing
injuries and pain." lQ; at 381, 191 P.3d at 1058. The supreme
court held the following: 1

Here, the jury was specifically instructed that it

"must follow all the instructions given" and "must not
single out some instructions and ignore others." See Jury
Instruction No. 1; see also Myers, 76 Hawai‘i at 165, 871
P.2d at 1235 (holding that it is not a permissible
"'inference,' . . . that the jury followed one instruction
as opposed to another"). with regard to the apportionment
of damages, the jury was instructed in Jury Instruction

No. 30 that it should "award such damages as will fairly and
reasonably compensate [Kato] for the injuries or damages
legally caused by [FUnari's] negligence" and, in Jury
Instruction No. 31, to "limit [its] award to the damages
attributable to the injury caused by [Funari]." (Emphases
added.) Question No. 2 on the special verdict form asked
the jury simply'"what were [Kato's] total damages."
(Emphasis added.) However, the phrase “total damages" was
not defined in the jury instructions nor on the special
verdict form. Assuming -- as we must -- that the jury
followed Jury Instructions Nos. 30 and 31, the "total“
amount of damages awarded by the jury in response to
Question No. 2 were those damages solely and totally
attributable to the injuries or damages sustained by Kato as
a result of the November 2, 2001 accident. Therefore, we
hold that -- "in view of the instructions to the jury" --
the jury "clear[ly] and unambiguous[ly]," Dias v. Vanek, 67
Haw. 114, 117, 679 P.2d 133, 135 (1984), awarded Kato
$59,536.55 in damages, which damages represented post-
apportionment amounts, i.e., were "limit[ed] . . . to the
damages attributable to the injury caused by [Funari]," as
it was instructed to do pursuant to Instruction No. 31.
Consequently, the trial court's reduction of the jury's
award of $59,536.55 by ninety percent to "satisfy the
supposed equities of the case," id. at 117, 679 P.2d at 135
(citation and internal quotation marks omitted), was, in our
view, an improper modification of the special verdict. were

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this court to hold otherwise and agree with the 1CA that the
trial court correctly reduced the jury's damages award, we
would have to presume that the jury believed,
notwithstanding the instructions to the contrary, that the
term "total damages" included both the pre-existing
conditions and post-accident injuries. Such a presumption
would be contrary to the principle that the jurors followed
the law as was given to them and were guided by the plain
language of Jury Instruction No. 30 ("award only such
damages as will fairly and reasonable compensate [Kato] for
the injuries or damages legally caused by [Funari]'s
negligence") and Jury Instruction No. 31 (“limit your award
to the damages attributable to the injury caused by
[Funari]"). As previously stated, such a presumption is
impermissible and contrary to our case law. Myers, 76
Hawafi at 165, 871 P.2d at 1235. Thus, we hold that the
1CA erred in affirming the trial court's December 8, 2004
judgment.

[B]ased on our holding that the jury's answer to
Question No. 2 represented a post-apportionment amount of
damages, we conclude that the apportionment questions (i.e.,
Question Nos. 3 and 4) were irrelevant and unnecessarily
posed to the jury. we, therefore, hold that Question Nos. 3
and 4 should not have been included on the special verdict
form.

we emphasize, however, that our holding today should
not be read as a blanket prohibition against the inclusion
of apportionment questions relating to pre-existing injuries
on special verdict forms. Our holding is limited to the
circumstances where the standard Montalvo instruction““
. is given to the jury, i.e., the jury is instructed to
limit its award of damages to those damages attributable
solely to the defendant's negligence, In such
circumstances, apportionment questions are unnecessary and,
therefore, improper because it is presumed that the jury
will follow the plain language of the Montalvo instruction
and indicate its apportioned-award of damages on the special
verdict form. 1n other words, when using the HawaiW_
Standard Civil Jury Instructions regarding apportionment,
the inclusion of apportionment questions on the special
verdict form is unnecessary. However, if apportionment
questions are to be included on the special verdict form,
the jury instructions must be consistent with the questions
asked and must clearly apprise the jury of the special
findings it is being asked to make.

n 1n Montalvo, the Hawaii Supreme Court held that the jury should have
been carefully instructed on apportionment 1

to first determine whether Montalvo had fully recovered from any
pre-existing condition or whether such condition was dormant or
latent as of November 29, 1988. 1f the answer is "yes" to any of
the above inquiries, then the City is liable for all damages
legally caused by the November 29, 1988 City accident. However,
if Montalvo's pre-existing condition was not fully resolved or not
dormant or latent at the time of the City accident, then the jury
must apportion, If the jury is unable to apportion, even roughly,
then it must divide the damages equally among the various causes.

77 Hawai‘i at 300, 834 P.2d at 363.

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1Q4 at 383-84, 191 P.3d at 1060-61 (footnote in original
omitted).

Although the circuit court in the instant case
instructed the jury to limit its award of damages to those
"damages attributable solely to [Momohara's] negligence," the
questions on the special verdict form were "consistent with the
questions asked" and “clearly apprise[d] the jury of the specific
findings it [was] being asked to make." §a;Q, 118 HawaFi at
384, 191 P.3d at 1061. Unlike the special verdict form in §a;Q,
the special verdict form in the instant case did not simply ask
the jury what were weite's total damages; rather, Question No. 2
asked, "without regard to any special apportionment of her
damages, what is the total amount of [weite's] damages?".
(Emphasis added.) The addition of this explicit language
sufficed to eradicate any potential confusion the combination of
jury instructions and questions on the special verdict form may
have caused the jury.

Given the foregoing, Questions No. 2 and 3 on the
special verdict form in combination with the other jury
instructions on apportionment "when read and considered as a
whole“ were not "prejudicially insufficient, erroneous,
inconsistent, or misleading." Tabieros, 85 Hawafi at 350, 944
P.2d at 1293. The circuit court did not abuse its discretion in
including the two questions in the special verdict form.

5. Ca1cu1ating the judgment

Weite contends the circuit court erred in calculating
the judgment by apportioning the jury award of special damages
and general damages by 50% and then subtracting the full amount
of the CLD. weite argues that pursuant to HRS § 431:10C-301.5,
the circuit court should have subtracted the CLD from the verdict

amount before apportioning damages, as follows:

Total damages $39,256.63
~ CLD <§ 6,53'7.73>
$32,718.90
- 50°6 <§16,359.45>
Net $16,359.45

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The Judgment provides:

From the jury verdict in favor of [Weite] in the
amount of Nineteen Thousand Six Hundred Twenty-Eight Dollars
and Thirty-Two Cents ($19,628.32), the sum of Six Thousand
Five Hundred Thirty-Seven Dollars and Seventy-Three Cents
($6,537.73) representing the [CLD] pursuant to [HRS1 § 431-
10C-301.5, shall be deducted.

Accordingly, it is hereby ordered, adjudged and
decreed that Judgement be and is hereby entered in favor of
[Weite] in the amount of Thirteen Thousand Ninety Dollars
and Fifty-Nine Cents ($13,090.59).

Pursuant to the Judgment, weite's damages are calculated as

follows:

Total damages $39,256.63

- 50% <§19,628.3l>
$19,628.32

- CLD <§ 6¢537.73>
$13,090.59

HRS § 431:10C-301.5 provides:

§431:l0C-30l.5 Covered loss deductible. whenever a
person effects a recovery for bodily injury, whether by
suit, arbitration, or settlement, and it is determined that
the person is entitled to recover damages, the judgment¢
settlement, or award shall be reduced by $5,000 or the
amount of personal injury protection benefits incurred,
whichever is greater, up to the maximum limit. The covered
loss deductible shall not include benefits paid or incurred
under any optional additional coverage.

(Emphasis added.)

1n State Farm v. Gepaya, the Hawafi Supreme Court
stated that HRS § 431:10C-301.5 (Supp. 1997) "was part of a full
scale change to fix the motor vehicle insurance system designed
to yield a significant reduction in premiums, control litigation,
and provide adequate medical coverage without a cost shift to
businesses and employees." Gepaya, 103 Hawafi at 146, 80 P.3d
at 325 (internal quotation marks, citation, and brackets
omitted). The supreme court further stated that the CLD was
"designed to discourage frivolous law suits and yet at the same
time set a reasonable standard for litigation on legitimate
claims." ld; at 147, 80 P.3d at 326 (quoting Conf. Comm. Rep.
No. 171, in 1997 Senate Journal, at 798 (comments of Senator

Baker)). The CLD works in the following manner:

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1) 1n cases where the damages associated with an
automobile accident are less than $5,000, the claimant is
precluded from suing the negligent party in an automobile
accident. This is necessary in order to keep the small
claims out of litigation.

2) 1n cases where the claimant has incurred medical
expenses of between $5,000 and $10,000, the result of the
litigation will have subtracted from the award the amount of
medical expenses incurred. This precludes the claimant from
receiving funds for medical expenses for which is covered
[sic] under his own policy.

3) In cases where the claimant has incurred medical
expenses of $10,000 or more, any award obtained through any
means of litigation will be reduced by $10,000.

Gepaya, 103 Hawafi at 147, 80 P.3d at 326 (emphasis omitted)
(quoting Conf. Comm. Rep. No. 171, in 1997 House Journal, at 999
(comments of Representative Menor)). The supreme court went on
to state that the role of the statute "was to preclude a claimant
from receiving a 'double recovery' for medical expenses which had
been paid under the PIP coverage by reducing a recovery of
damages for bodily injury[.]" §epaya, 103 Hawafi at 148, 80

P.3d at 327.
1n the instant case, HRS § 431:10C-301.5 mandates that

the "award shall be reduced by . . . the amount of [P1P]
benefits." The statute does not state that the award should be
reduced after apportionment by the amount of P1P benefits. The

`CLD is to be deducted from the "total damages" awarded by the

trier of fact prior to apportionment of the damages.

The issue has not been previously addressed in this
jurisdiction. Although this case involves apportionment of
damages due to pre-existing injuries, cases from other
jurisdictions addressing apportionment in the context of
comparative negligence support our holding that the CLD should be
deducted from the verdict amount before damages are apportioned.
1n a Florida case, Norman v. Farrow, 880 So. 2d 557 (2004),
Farrow alleged that she was injured when her car was rear-ended

by a car driven by william Cleff (Cleff).” 1d. at 558. Cleff

12 Cleff subsequently died and his wife, Cynthia Cleff Norman, as
personal representative of Cleff's estate, became the named party. Norman,
880 SO. 2d at 558 1'1.1.

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asserted as an affirmative defense that Farrow's negligence had
been a cause of the collision. 1d; At trial, the jury found
Cleff 90% negligent and Farrow 10% negligent and awarded Farrow
$19,647.71 in total damages for medical expenses and pain and
suffering, ld4 1t was undisputed that pursuant to Florida
Statutes § 627.736(3) (2003), Cleff was entitled to a setoff for
"damages for which [P1P] benefits are paid or payable" to Farrow.
Norman, 880 So. 2d at 558. Section 627.736(3) provided in
relevant part that "[a]n injured party who is entitled to bring
suit under the provisions of §§ 627 730-627.7405, or his or her
legal representative, shall have no right to recover any damages
for which [P1P] benefits are paid or payable." Norman, 880 So{
2d at 559-60 (footnote and emphasis omitted).

1n its judgment, the Circuit Court, Escambia County,

calculated Farrow's award as follows:

A. Jury Verdict . . . . . . . . . . . . . . . . . . . .. $19,647.71
Reduction, 10% Comparative (-$ 1,964.77)
Negligence . . . . . . . . . . . . . . . . . . . . . ..

C. P1P Offset . . . . . . . . . . . . . . . . . . . . ..

l. PIP ($4,998.17) Offset . . . . ..

2. Reduction, 10% Comparative .. (- 4,498.35)
D. Taxable Costs . . . . . . . . . . . . . . . . . .. (+ 4,868.44)
E. Pre-Judgment Interest on Verdict $ 0.00
TOTAL JUDGMENT ON JURY VERDICT $18,053.03

ld; at 558.

Cleff appealed, arguing that the Escambia circuit
court's calculations led to a double recovery by Farrow and that
Cleff was entitled to a setoff of all damages for which P1P
benefits were paid or payable to Farrow, with no consideration of
comparable fault. 1d; at 559. The Supreme Court of Florida
agreed, holding that

pursuant to section 627.736(3), which bars all recovery of
damages paid or payable by P1P benefits, the amount for
which PIP benefits have been paid or payable is to be
deducted by the trier of fact from the amount awarded as
economic damages in the verdict. Those amounts are not
recoverable. Following that deduction, the noneconomic
damages awarded should be added and then the percentage of
comparative negligence found by the trier of fact is to be

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applied to reduce the amount of damages which are
recoverable from the tortfeasor. The remainder is the
amount of the judgment.

1d; at 560-61 (footnotes omitted). 1n so holding, the Florida
Supreme Court "disapprove[d] the holding in Assi v. Florida Auto
Auction of Orlando, 1nc., 717 So, 2d 588 (Fla. 5th DCA 1998), in
which the Fifth District affirmed a trial court's method of
calculation that first diminished the total award by the
plaintiff's comparative fault and then subtracted the amount of
damages paid or payable by the P1P benefits." Norman, 880 So. 2d
at 561. 7

. 1n another Florida case, Hibbard v. McGraw, 918 So. 2d
967 (Fla. 2005), Carr“ (the plaintiff) sustained injuries while
riding as a passenger in a truck driven by her friend, Brock,
when Brock swerved to avoid hitting a vehicle driven by McGraw
and collided with a tree. ;d; at 969. Carr settled with Brock
prior to trial. lQ; at 973. A jury found Brock 70% negligent,
McGraw 5% negligent, and Carr 25% negligent for Carr's injuries
and awarded damages to Carr and her mother. 1d;'at 970. The
Circuit Court, St. Johns County, deducted a setoff for P1P
benefits after apportioning damages according to Brock and
McGraw's relative comparative negligence. 1Q¢

On appeal, Carr argued that the Circuit Court
miscalculated the damages. ;d; at 972. The District Court of
Appeals of Florida, Fifth District, agreed and, citing to Norman,
held that "the amount of P1P benefits paid or payable must be
first deducted from the amount of economic damages awarded, the
noneconomic damages added and then comparative negligence
considered." ld4 at 973.

The underlying facts in a Colorado personal injury
case, Hickenbottom v. Schmidt, 626 P.2d 726 (Colo. 1981), were as

follows:

After a trial to the jury, [Hickenbottom's] damages
due to [Schmidt‘s] negligence were calculated to be $10,000.
After deducting the percentage of {Hickenbottom's]
comparative negligence from the total amount of damages, the
[District Court of Logan County] entered judgment in favor

13 Carr was a minor at the time of the accident and suit was filed by
Carr's mother, Hibbard, on behalf of Carr. 918 So. 2d at 969.

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of [Hickenbottom] for $7,500. However, because
[Hickenbottom] had received $9,802.35 in [P1P] benefits for
medical expenses and loss of income, the court amended the
judgment in favor of [Schmidt].

1dp Hickenbottom appealed, arguing that pursuant to Colorado
Revised Statutes (C.R.S. l973) § 10-4-717 (l979 Cum. Supp.), the
district court erred by setting off the P1P payments received by
her against the damages awarded to her. Hickenbottom, 626 P.2d
at 726-27. Section 10-4-717 provided that an injured party was
"precluded from recovering damages from a tortfeasor which are
recoverable as direct benefits under § 10-4-706, C.R.S. 1973
(l979 Cum. Supp.)." Hickenbottom, 626 P.2d at 727. The Colorado
Court of Appeals held that the district court did not err by
setting off the P1P payments received by Hickenbottom, but
pursuant to other parts of C.R.S. 1973 and another source of law,
"the recoverable P.1.P. benefits are to be deducted from the
total amount of damages attributable to defendant's negligence
before the court reduces the judgment by the percentage of
comparative negligence attributable to plaintiff." Hickenbottom,
626 P.2d at 727 (emphasis added).

1n an Alaska case, Jackman v. Jewel Lake villa 0ne, 170
P.3d 173 (Alaska 2007), Jackman fell and injured herself on a
staircase at her apartment complex, the Jewel Lake villa
Apartments (Jewel Lake). 1Q4 at 174. Jackman sued Jewel Lake.
1d; A jury found Jewel Lake was 51% at fault for Jackman's
injuries. 1d4 The Superior Court, Third Judicial District,

Anchorage, calculated the award to Jackman as follows:

[The superior court] initially divided the full jury award,
$7,147.23, to derive Jewel Lake's fifty-one percent share of
the damages: $3,645.09. After adjusting for interest,
costs, and attorney's fees, the court subtracted the full
amount of the advance medical payments from Jewel Lake's
share of the damages to arrive at a "maximum amount .
payable" of $906.63 under the verdict.

1d. at 178. Jackman appealed, arguing that the superior court
miscalculated the award. 1d. at 177. The Supreme Court of

Alaska agreed, holding the following:

The [superior] court's approach treated the medical

expense payments as pure liability payments -- payments
meant to compensate Jackman only for Jewel Lake's
proportionate share of the fault. Yet . . . the record

fails to disclose the specific basis for the medical
payments. Jewel Lake's insurer appears to have

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unconditionally reimbursed Jackman for her medical expenses:
there is no indication of any reservations or restrictions
suggesting that the reimbursements were paid as compensation
for Jewel Lake's potential share of the fault. Absent
evidence establishing the actual basis for the injurer's
payments, we see no obvious grounds for crediting the entire
amount of the advance payments against the portion of the
jury verdict reflecting Jewel Lake's share of the fault.

1d; at 178. The supreme court went on to state that "[a]bsent
case-specific evidence establishing that the payment in question
was actually based on potential fault, then, it simply lowers the
total damages still to be paid, leaving all negligent parties
responsible for their proportionate share of the harm." ld; at
179. The supreme court added that "deducting advance payments
from the jury's total award poses a risk of double recovery only
if we assume that those payments were made on the basis of the
defendant's potential fault." ;Q4 1n a footnote, the supreme
court stated that its approach was similar by analogy to the
method adopted by the Florida Supreme Court in Norman and the
Colorado Court of Appeals in Hickenbottom. Jackman, 170 P.3d at
179 n.l6.

Given the foregoing, the circuit court in the instant
case erred when it subtracted the CLD from the jury's damage
award after apportioning the damages.

6. Prevailing party and CAAP sanctions

HAR 25(A) provides that the "'Prevailing Party' in a
trial de novo is the party who (1) appealed and improved upon the
arbitration award by 30% or more . . . . For the purpose of this
rule, 'improve' or 'improved' means to increase the award for a
plaintiff or to decrease the award for the defendant."

HAR 26 provides in relevant part that "[a]fter the
verdict is received and filed, or the court's decision rendered
in a trial de novo, the trial court may, in its discretion,
impose sanctions . . . against the non-prevailing party whose
appeal resulted in the trial de novo."

8 weite contends the circuit court erred by finding that
Momohara, not weite, was the "prevailing party" for purposes of
assessing CAAP sanctions and the court should have determined who

the CAAP "prevailing party" was before subtracting the CLD. She

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claims that Momohara's improvement on the arbitration award in

this case should be calculated as follows:

CAAP award $27,808.62
Judgment (after 50% apportionment

of special and general damages) $19,628.32
Amount of improvement $ 8,180.30
% of improvement [reduction] 29.42%

Consequently, weite maintains, Momohara was not the prevailing
party pursuant to HAR 25(A) because he only improved upon the
arbitration award by 29.42%.

1n his Motion Re Sanctions/Costs/Interest, Momohara
argued that he clearly improved upon the Arbitration Award by 30%
or more at trial and was the "prevailing party" under HAR 25(A).
First, Momohara claimed that the net CAAP award was actually
$21,000, or the special and general damages award of $27,808.62
minus the CLD of $6,808.62. Momohara cited to Kim v. Reilly, 105
Hawafi 93, 94 P.3d 648 (2004), for his assertion that the total
CAAP award represented the damages award minus the CLD amount.
Second, Momohara claimed, as he had in his Motion Re CLD, that
weite's recovery at trial was actually $13,090.59, or 50% of the
jury's verdict of $19,628.32, reduced by the CLD of $6,537.73.
Momohara cited to HRS § 431:10C-301.5 in support of his assertion
that the verdict amount had to be reduced by the CLD amount.
Based on Momohara's assertions in his opposition memorandum to

the Motion Re Sanctions/Costs/Interest, Momohara's calculation

was as follows:

CAAP award: $27,808.62

- CLD: <§ 6,808.62>
$21,000.00

Damages (50%): $19,628.32

- CLD: <§ 6,537.73>
$13,090.59

% improvement (reduction): 37%

1n Richardson v. Sport Shinko (waikiki Corp.), the
Hawafi Supreme Court stated the following regarding HAR 26:

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[T]he legislature statutorily codified the CAAP as a means
to reduce the delay and costs involved in protracted
litigation by providing for a procedure to obtain prompt and
equitable resolution of certain civil actions in tort
through arbitration. At the same time, the supreme court
was delegated the authority to adopt rules to implement the
CAAP. 1n doing so, this court promulgated HAR 26 to enforce
the objectives of the CAAP.

1ndisputably, baseless or frivolous appeals from an
arbitration decision subvert the purposes of the CAAP
because they prevent prompt and equitable resolutions of
actions and, as such, must be discouraged. The goals of the
CAAP would be jeopardized without a mechanism to ensure
meaningful participation in the program and to encourage
participants to seriously evaluate the merits of their case
following the arbitration before expending the additional
time and expense of a trial de novo. 1n other words, the
vital objectives of the CAAP cannot be met if participants
invariably treat arbitration as a routine or pro forma step
along the path to trial de novo by rejecting reasonable
arbitration decisions or reasonable post-arbitration
settlement offers, even though the decision to appeal is not
technically "frivolous."

Thus, HAR sanctions may be imposed to penalize a non-
prevailing party whose decision to appeal the arbitration
award and pursue a trial de novo was unreasonable under the
circumstances of the particular case, albeit grounded to
some degree in law or fact. .

76 HawaFi at 510-11, 880 P.2d at 185-86 (internal quotation
marks, citation, and footnote omitted).

' 1n the instant case, the arbitrator awarded Weite
$7,808.62 in special damages, $20,000 in general damages, and
$299.50 in costs. The Arbitration Award provides that "[t]otal
damages shall be reduced by a CLD in the amount of $6,808.62."
HAR 25(A) provides that the "prevailing party" at trial is "the
party who appealed and improved upon the arbitration award by 30%
or more." 1n the instant case, for purposes of determining who
was the prevailing party, the recovery at trial should be
compared with the CAAP award after the subtraction of the CLD, or
$21,000. §im, 105 HaWafi at 96, 94 P.3d at 65l.

1n accordance with our holding in Part 111.A.5 of this
discussion, weite's net damages award should have been
$16,359.45. Both the CAAP award and the damages award reflect
the subtraction of the CLD. "1n order to meaningfully compare a
plaintiff's CAAP award with the amount a plaintiff recovers at
trial de novo, the respective amounts must be based on the same

underlying factors. Otherwise, the trial court will have no way

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of determining whether an award of a different value is an
improvement or a reduction." Molinar v. Schweizer, 95 Hawafi
33l, 335-36, 22 P.3d 978, 982-83 (200l).

Given our discussion on this point, the calculation for

purposes of determining the prevailing party in this case is as

follows:
CAAP award: $21,000.00
Damages award: <$16 359.45>
Amount of reduction: $ 4,640.55

Consequently, because Momohara reduced the CAAP award by 22%, he
was not the "prevailing party" under HAR 25, The circuit court
abused its discretion in denying the Motion Re Sanctions/Costs/
1nterest.
7. Prejudgment interest

weite contends the circuit court abused its discretion
in not awarding her prejudgment interest. Weite maintains that
"the equities in this case merit such an award" because "the
record is clear that [Momohara] and A1G acted in bad faith during
settlement negotiations." 1n support of this contention, weite
maintains that the parties' initial settlement positions were
only $1,100 apart, but once she filed the lawsuit, A1G withdrew
its $17,000 settlement offer and lowered its offer to $5,000.
weite also contends that "[Momohara] and A1G's litigation tactics

were deplorable" in that

[t]he defense tried repeatedly to conduct discovery after
the discovery cutoff, resulting in monetary sanctions, but
requiring a postponement of the trial date. Further, rather
than deposing the medical experts and stipulating to the
authenticity and reasonableness of the medical treatment and
bills, the defense forced this matter to be litigated as
well which ultimately was decided in favor of [weite].

1n sum, weite maintains that

the defense tried to get away with defending the case as
cheaply as possible,“ even though defense costs far
exceeded the amount needed to settle the case, and far
exceeded the jury verdict as Well, Although "bad faith" is
not required in order for [weite] to obtain prejudgment

M At the hearing on the MPSJ Re Medical Bills, weite's counsel argued:
“what A1G does in these cases, § . . they take these things and they force the
plaintiff to go to trial and they try them as cheaply as they can get away
with and try to make plaintiffs spend the money to go to trial.“

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interest, such factors should persuade the Court that full
prejudgment interest is appropriate here.

(Emphasis in original.) 1n her Motion Re Sanctions/Costs/
1nterest, weite's arguments on this point were substantially
similar to her arguments on appeal,

1n Kalawaia v. A1G HawaFi 1nsurance Co., 90 HawaFi
167, 172, 977 P.2d 175, 180 (1999) (internal quotation marks and
citations omitted), the Hawafi Supreme Court stated that
"[p]rejudgment interest is an element of complete compensation.
Prejudgment interest serves to compensate for the loss of use of
money due as damages from the time the claim accrues until
judgment is entered, thereby achieving full compensation for the
injury those damages are intended to redress." "[P]rejudgment
interest compensates for the inevitable litigation delay in being
reimbursed for damages incurred." Molinar, 95 Hawaii at 335, 22
P.3d at 982. "The purpose of prejudgment interest is to
discourage recalcitrance and unwarranted delays in cases which
should be more speedily resolved," Metcalf v. voluntary
Employees' Benefit Ass'n of Hawaii, 99 HawaFi 53, 61, 52 P.3d
823, 831 (2002) (internal quotation marks, citation, and brackets
omitted).

"A trial court's denial of prejudgment interest is
usually affirmed if the party requesting the award is found to
have caused the delay or if there is no showing that the non-
moving party's conduct unduly delayed the proceedings of the
case." Page v. Domino's Pizza, 1nc., 80 Hawafi 204, 209, 908

P.2d 552, 557 (App. 1995) (internal quotation marks and citations

omitted).

[1]t is clearly within the discretion of the circuit court
to deny prejudgment interest where appropriate, for example,
where: (1) the defendant's conduct did not cause any delay
in the proceedings; (2) the plaintiff himself has caused or
contributed to the delay in bringing the action to trial; or
(3) an extraordinary damage award has already adequately
compensated the plaintiff.

Roxas v. Marcos, 89 Hawafi 91, 153, 969 P.2d 1209, 1271 (1998)

(citations omitted). 1n Tri-S Corp. v. western world 1nsurance
L, 110 Hawai‘i 473, 498, 135 P.3d 32, 107 (2006), the Hawai‘i

Supreme Court held that

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(1) if fault is found on the part of the party seeking
interest, denial of interest will not be considered an abuse
of discretion; (2) if fault is found on the part of the
party opposing interest, an award of interest will not be
considered an abuse of discretion; and (3) where no fault is
found on either side, the trial court may still award or
deny prejudgment interest in its discretion, depending on
the circumstances of the case.

Although weite argues that "the record is clear that
[Momohara] and A1G acted in bad faith during settlement
negotiations," in support of this contention, weite cites only to
the actions of A1G, not Momohara, during her settlement
negotiations with A1G. weite presents no evidence on appeal that
Momohara acted in bad faith during those negotiations. 1n the
“Background" section of her opening brief, weite does describe
Momohara's offers of settlement to her. She states that Momohara
offered her $5,000 in general damages, net of the CLD, then
proffered a Rule 68 Offer of Settlement in the amount of $10,000
in general damages and net of the CLD. Given weite's recovery in
this case, which should have been $16,359.45 net of the CLD,
Momohara's offers were not per se indicative of any
disingenuousness on his part.
weite further argues that she was entitled to

prejudgment interest because Momohara declined to depose

Drs. Nierenberg and Lind or stipulate to the authenticity and
reasonableness of weite's medical treatment and expenses. As we
have already discussed, Momohara was not required to depose the
doctors to rebut their deposition testimony that weite's injuries
after the 2000 accident were entirely attributable to that
accident. Further, Momohara validly argued in his memorandum in
opposition to the MPSJ Re Medical Bills that there was a genuine
issue of material fact regarding the reasonableness and necessity
of weite's medical expenses because the evidence showed weite's
injuries could have resulted from one or more of her prior
accidents. Given that theory, it was not unreasonable for
Momohara to decline to stipulate that weite's medical treatments
following that accident were necessary or reasonable.

weite also contends "[Momohara] and A1G's litigation

tactics were deplorable" because the "defense tried repeatedly to

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conduct discovery after the discovery cutoff, resulting in
monetary sanctions, but requiring a postponement of the trial
date." On October 17, 2007, weite filed her Motion to Strike
Oda/Preclude video. On November 7, 2007, the circuit court filed
its order in which the court sanctioned Momohara for the
discovery violations, but declined to strike Oda as a witness or
preclude the video from trial. The circuit court continued the
trial from November 19, 2007 to February 19, 2008 "to allow the
parties to conclude discovery." On November 14, 2007, weite
moved to continue the trial to May 5, 2008 because Dr. Nierenberg
was going to be off-island from mid-January to mid-March 2008 and
unavailable to testify at trial. On November 30, 2007, the
circuit court filed an order granting the motion. Given that
Momohara's discovery violations only resulted in a roughly three-
month delay and weite does not argue Momohara knew the delay
would result in weite having to request another continuance so
Dr. Nierenberg could testify at trial, we fail to see why the
circuit court should have awarded weite prejudgment interest on
this basis.

1n Bag§, Page was sitting on a stool at a Domino's
Pizza store (Domino's), when the stool collapsed. 80 HawaFi at
205-06, 908 P.2d at 553-54. Page filed a complaint against
Domino's, alleging that the incident resulted from the negligence
of Domino's and Page had suffered injuries as a result of such
negligence, 1d¢ at 206, 908 P.2d at 554. A jury found Domino's
was negligent and awarded damages to Page. ld; The award was
entered over three-and-a-half years after Page had been injured.
1QL at 210, 908 P.2d at 558. Page moved the circuit court for an
award of prejudgment interest, which motion the court denied.
;Q; at 206, 908 P.2d at 554. The circuit court stated that Page
was not entitled to the award "because the period of time it took
to complete the case was not extraordinary considering 'the
totality of the case.'" 1d; at 209, 908 P.2d at 557 (footnote
omitted).

1n a cross-appeal to this court, Page argued that the

circuit court erred in denying his motion for prejudgment

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interest. 1d4 at 206, 908 P.2d at 554. Page maintained, among
other things, that he was "entitled to prejudgment interest
because [Domino's] delayed the speedy resolution of the case by
not offering more than $25,000 during the numerous settlement
conferences held during the litigation." 1dL at 209, 908 P.2d at
557. This court disagreed, holding that the circuit court had
not abused its discretion in denying the motion for prejudgment
interest on the basis that Domino's "offer of $25,000 was not
unreasonable in light of its belief regarding disputed issues on
liability and apportionment of damages." 1d; at 210, 908 P.2d at
558. This court further stated: "There is no evidence in the
records to indicate that any delays in the proceedings were due
to the conduct of either Page or [Domino's]. The continuances of
the trial date were not due to the conduct of either." ld;

1n the instant case, the accident occurred on
February 8, 2000. weite filed the original complaint on
August 25, 2005 and the First Amended Complaint on February 3,
2006, after negotiations with A1G allegedly stalled. Trial was
set for the week of November 19, 2007. On October 17, 2007,
weite filed her Motion to Strike Oda/Preclude video. On
November 7, 2007, the circuit court filed an order, in which the
court sanctioned Momohara for the discovery violations, but
declined to strike Oda as a witness or preclude the video from
trial. The circuit court continued the trial to February 19,
2008 "to allow the parties to conclude discovery." On
November 14, 2007, weite moved to continue trial to May 5, 2008
because Dr. Nierenberg was unavailable to testify the week of
February 19, 2008. On May 15, 2008, the jury issued its verdict,
awarding weite damages.

There is no evidence in the record on appeal to suggest
that Momohara's conduct unduly delayed the proceedings of the
case so as to justify an award of prejudgment interest to weite.
§ag§, 80 HawaiYi at 209, 908 P.2d at 557. The circuit court did
not abuse its discretion by denying weite's motion for

prejudgment interest.

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8. Taxable costs

weite contends the circuit court abused its discretion
in denying her Motion Re Taxable Costs. Given our holding that
Momohara was not the prevailing party at trial, we vacate the
award of costs to Momohara as the prevailing party.

B. CROSS-APPEAL

1. MIL Re Medical Claims

Momohara contends the circuit court erred in denying
his MIL Re Medical Claims, He argues that the circuit court
should have limited weite's claimed medical expenses in amount
and frequency to those permitted under the workers' compensation
fee schedule, pursuant to HRS § 431:10C-308.5(b), and prohibited
weite from introducing evidence of medical expenses in excess of
that amount. HRS § 431:10C-308.5(b) provides in relevant part
that "[t]he charges and frequency of treatment for services
specified in section 431:10C-103.5(a) [(Supp. 1999)”] except for
emergency services provided within seventy-two hours following a
motor vehicle accident resulting in injury, shall not exceed the
charges and frequency of treatment permissible under the workers'

compensation schedules."“

15 Has § 431 10c~103.5 provides=

§431:10C-103.5 Personal injury protection benefits;
defined; limits. (a) Personal injury protection benefits, with
respect to any accidental harm, means all appropriate and
reasonable treatment and expenses necessarily incurred as a result
of the accidental harm and which are substantially comparable to
the requirements for prepaid health care plans, including medical, ”
hospital, surgical, professional, nursing, advanced practice
nursing recognized pursuant to chapter 457, dental, optometric,
chiropractic, ambulance, prosthetic services, products and
accommodations furnished, x-ray, psychiatric, physical therapy
pursuant to prescription by a medical doctor, occupational
therapy, rehabilitation, and therapeutic massage by a licensed
massage therapist when prescribed by a medical doctor.

(c) Personal injury protection benefits shall be subject to
an aggregate limit of $10,000 per person for services provided
under this section. An insurer may offer additional coverage in
excess of the $10,000 aggregate limit for services provided under
this section, or as provided by rule of the commissioner.

16 HRs § 431 loc-303.5(a) states that "the term 'workere' compensation
schedules' means the schedules adopted and as may be amended by the director
of labor and industrial relations for workers' compensation cases under

(continued...)

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Momohara argues that HRS § 431:10C-308.5 limits weite
to a medical expenses claim that does not exceed the charges and
frequency of treatment allowable under the workers' compensation
schedules, which claim in this case was the amount her P1P
carrier had paid. He presumes that weite's P1P carrier
determined the amount in P1P benefits to pay out based on the
workers' compensation schedules, pursuant to HRS § 431:10C-308.5.

As weite argues in her answering brief, Momohara did
not make these arguments in his MIL Re Medical Claims. There,
Momohara argued that weite should be precluded from requesting an
award for medical expenses because in response to an
interrogatory, weite stated only that she had incurred $7,808.62
in medical expenses stemming from the 2000 accident -- the $1,000
deductible she paid and the $6,808.62 paid by her P1P provider.
He further argued that because weite had not supplemented her
response, she should be held to that amount. He added that weite
had neither exhausted the amount of medical insurance benefits
available to her, nor indicated that she had incurred any
expenses in excess of $7,808.62. Regardless, we review the
contention for plain error.

Momohara's argument is based on a misreading of HRS
§ 431:10C-308.5. That statute clearly provides in relevant part
that "[t]he charges and frequency of treatment for services
specified in section 431:10C-103.5(a) . . . shall not exceed the
charges and frequency of treatment permissible under the workers'
compensation schedules." HRS § 431:10C-103.5 defines and limits
P1P benefits. Hence, HRS § 431:10C-308.5 limits the payment of
PIP benefits to payments permitted under the workers'
compensation schedules. The statute does not preclude a
plaintiff injured in an automobile accident from receiving
special damages beyond what she received in P1P benefits.

The circuit court did not plainly err by failing to
limit weite's recovery for medical expenses to what she had

already received in P1P benefits.

“(...continued)
chapter 386, establishing fees and frequency of treatment guidelines[.] "

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2. Dr. Nierenberg's testimony re medical expenses
Momohara contends that the circuit court erred in
permitting Dr. Nierenberg to testify regarding the amounts,
reasonableness, and necessity of weite's medical expenses
incurred at QMC, RA, and ORS, over Momohara's objection.

Momohara argues that

[t]here was no evidentiary foundation for Dr. Nierenberg's
testimony. 1n particular, there was no testimony or
evidence presented that Dr. Nierenberg was in any way
involved in the billing for any other medical care
providers. There was also no testimony or evidence that he
had any personal knowledge of the reasonable and customary
billing practices or charges for diagnostic studies (i.e.
the MRI scans) or physical therapy.

To support this argument, Momohara cites to HRE Rules 602 and

801.
At trial, the following discussion took place outside

the presence of the jury:

THE COURT: As far as reasonableness of [medical]
bills and that sort of thing, let's take that first,
[Momohara's counsel], do you have a position.

[MOMOHARA'S COUNSEL]: Your Honor, [Dr. Nierenberg]
can testify as to the reasonableness of the bills as his
role as treatment.

THE c0URT= Treatment._

[MOMOHARA'S COUNSEL]: Treating physician, 1 don't
have a problem with that.

_ THE COURT; All right. That's going to be allowed. 1
don't hear an objection to that.

Go on, [weite's Counsel], what do you want?

[wE1TE'S COUNSEL]: 1t's not just his but also he
referred her going to be talking about treatment, physical
therapy, whether that was reasonableness, about their bills,
the same thing with respect to MRI's. This is what he does.

THE COURT: [Momohara's Counsel], you object to any of
that.

[MOMOHARA'S COUNSEL]: Your Honor, if he lays the
proper foundation, but, the foundation treating he made a
referra1. And, if the physical therapist reported back to
him, part of his files, he can testify to that. As far as
what they charge, 1'm not sure how he knows that but if he
does it customarily, they can lay a foundation for it.
Nothing to do with his --

THE COURT: well, what 1 hear [weite's Counsel] saying
is that part of the foundation for his testifying another
physician's treatment including physical therapy as an
independent medical examiner he's very use to reviewing that
sort of thing, etc.

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So, if that's the objection, 1 heard [weite's Counsel]
qualify the objection, 1 will allow that over objection.
Lay the foundation. Given that, that will be allowed.

Dr. Nierenberg testified that weite's medical charges
resulting from the 2000 accident of $1,286.96 from Dr. Nierenberg
for fourteen visits to his office, $1,896 from QMC for two MR1s,
$44l from RA for reading and interpreting the MR1s, and $3,457.47
from ORS for thirty-seven physical therapy sessions were all
reasonable and necessary. Dr. Nierenberg testified that each
charge was within the range commonly charged by other providers
in Hawafi at the time he treated weite for her injuries from the
2000 accident.

On appeal, Momohara contends he objected to the
testimony, citing to an earlier objection he had made to "the
scope of Dr. Nierenberg's testimony." However, in his earlier
objection, Momohara objected to Dr. Nierenberg's proffered
testimony regarding apportionment of damages, not testimony
regarding the necessity or reasonableness of weite's medical
expenses. we review this point for plain error.

HRE Rule 602 provides:

Rule 602 Lack of personal knowledge. A witness may
not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the
witness'[s] own testimony. This rule is subject to the
provisions of rule 703, relating to opinion testimony by
expert witnesses.

HRE Rule 703 provides:

Rule 703 Bases of opinion testimony by experts. The
facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. 1f of a
type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject,
the facts or data need not be admissible in evidence. The
court may, however, disallow testimony in the form of an
opinion or inference if the underlying facts or data
indicate lack of trustworthiness.

weite called Dr. Nierenberg to testify at trial as an
expert witness. Therefore, HRE Rule 703 applies. Pursuant to
that rule, Dr. Nierenberg did not have to have personal knowledge
of the customary billing practices of any and all medical

providers to testify that weite's medical expenses were necessary

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and reasonable. 1t sufficed that his testimony was based on his
experience as a treating physician and 1ME doctor and his
knowledge of the industry practice.

Momohara characterizes Dr. Nierenberg's testimony as
hearsay, under the definition set forth in HRE Rule 801
("'Hearsay' is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted."). However,

Dr. Nierenberg did not testify that the charges set forth in the
medical bills were accurate; rather, he testified that they met
the industry standard at the time he treated weite for injuries
stemming from the 2000 accident. The testimony did not
constitute hearsay.

Given the foregoing, the circuit court did not plainly
err by allowing Dr. Nierenberg to testify regarding the necessity
and reasonableness of weite's medical expenses.

V.

The portion of the Judgment, filed on June 18, 2008 in'
the Circuit Court of the First Circuit, setting forth the
calculation and resulting amount of weite's damages and costs is
vacated, and this case is remanded to the circuit court for
proceedings consistent with this opinion. The remainder of the

Judgment is affirmed.

On the briefs:

Randall L.K.M. Rosenberg

Charles E. McKay
Moana A. Yost ' %;>
(Rosenberg & McKay) ,

for Plaintiff-Appellant/
Cross-Appellee.

Jonathan‘L. Ortiz ,
wade J. Katano

Jacqueline E. Thurston

(Ortiz & Katano)

for Defendant-Appellee/ '
Cross -Appel lant .

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