Kanahele v. HAN

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

Electronically Filed
Supreme Court
SCWC-29800
12-OCT-2011
08:11 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

GREGORY KANAHELE, SR., Individually and as Next Friend
of GREGORY KANAHELE, JR., a minor,
and TRISHALYNN KANAHELE, a minor,
Petitioners/Plaintiffs-Appellees/Cross-Appellants

vs.

JAMES HAN, Respondent/Defendant-Appellant/Cross-Appellee

NO. SCWC-29800

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 06-1-0597)

October 12, 2011

RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.

OPINION OF THE COURT BY ACOBA, J.

We hold that in a personal injury case (1) when a jury

awards special damages but returns a zero general damages award

for pain and suffering, it is not an abuse of discretion for the

court to instruct the jury that the verdict is inconsistent, and

to direct the jury to continue deliberations on the amount of

general damages to be awarded; (2) when, after resubmittal to the

jury in such a case, the jury returns a general damages award

that is the symbolic equivalent of no award, the verdict is
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inconsistent; thus, (3) in the instant case, the jury’s $1.00

general damages award, after resubmittal of the general damages

question, was the symbolic equivalent of no award at all, in

light of its $12,280.41 special damages award; and (4) under the

circumstances of this case, a new trial on damages must be

granted. The application for writ of certiorari (Application) in

this case was filed on July 5, 2011 by Petitioners/Plaintiffs-

Appellees/Cross-Appellants Gregory Kanahele, Sr. (Kanahele),

individually and as next friend of Gregory Kanahele, a minor
(Gregory), and Trishalynn Kanahele, a minor (Trishalynn)

(collectively, Petitioners). Petitioners sought review of the

April 27, 2011 judgment of the Intermediate Court of Appeals

(ICA) filed pursuant to its April 7, 2011 summary disposition

order (SDO)1 affirming the April 24, 2009 final judgment filed by

the circuit court of the first circuit (the court).2 See

Kanahele v. Han, No. 29800, 2011 WL 1335732, at *5 (App. Apr. 7,

2011) (SDO).

I.

The following essential matters, some verbatim, are
from the record and the submissions of the parties.

At approximately 7:20 a.m. on December 16, 2003,

Gregory was struck by a vehicle driven by Respondent/Defendant-

Appellant/Cross-Appellee James Han (Respondent) while Gregory was

in a crosswalk attempting to cross a roadway near the

1
The SDO was filed by Presiding Judge Daniel R. Foley, and
Associate Judges Alexa D.M. Fujise and Katherine G. Leonard.

2
The Honorable Glenn J. Kim presided.

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intersection of Likini and Ala Nalana Streets in Honolulu.

Kanahele and Gregory’s sister Trishalynn witnessed the collision.

On April 5, 2006, Petitioners filed a Complaint against

Respondent alleging, inter alia, that the accident was caused by

Respondent’s negligent conduct, that Gregory sustained “severe

physical injuries, pain, suffering, serious emotional distress,

and loss of enjoyment of life[,]” and that Kanahele and

Trishalynn suffered injury.

Jury trial commenced on February 25, 2008. The
February 21, 2001 videotaped deposition testimony of Dr. Timothy

McLaughlin (Dr. McLaughlin), the doctor who “consulted,

evaluated, and managed” Gregory’s injury and saw Gregory after

the incident, was played to the jury. Dr. McLaughlin explained

that Gregory had been in an accident in which the handlebar of

Gregory’s racer scooter went through his cheek. Gregory was

“distraught” and “very upset” when Dr. McLaughlin first saw him

at Kapi#olani Hospital. According to Dr. McLaughlin, when

Gregory arrived at the hospital, he was in “mild to moderate

distress” and in “pain”. Gregory had difficulty opening his
mouth.

Gregory had a “complex laceration” of his cheek and a

two-inch laceration on his jaw bone. One two-inch laceration

went through the mandible3 and up the cheek, and another

approximately three-inch laceration was inside the mouth. There

3
The mandible is defined as the “lower jaw consisting of a single
bone or of completely fused bones.” Merriam Webster’s Collegiate Dictionary
706 (10th ed. 1993)

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was also ripping of the “buccal mucosa”4 and gums, that caused a

“gaping wound” inside the mouth. Dr. McLaughlin stated that he

performed a “complex closure with an advancement flap[.]”

In this procedure, he cleaned the wound, used scissors

or a scalpel blade to remove the tissue that could not be saved,

sutured it to put the remaining skin together, and then covered

the skin with an advancement flap, or tissue that was rotated

from the top cheek. The operation took two hours, and he used

dozens of sutures. Risks of the surgery were poor cosmetic
outcome, scarring, salivation problems, difficulty swallowing,

and chronic tooth pain. If Gregory did not have surgery, he

would be quite disfigured. According to Dr. McLaughlin, Gregory

did not suffer pain at the time of the procedure because he was

under local anaesthesia, and it was unclear whether he had a

permanent scar.

The medical invoices indicated that on December 16,

2003, Gregory received treatment for his injuries that were

described as an “open wound[,]” “wound(s), complex,” and a “head

injury[.]” He was “[t]ransport[ed]” by “[a]mbulance” to
Kapiolani Medical Center. He received a “tetanus” immunization,

was given “lidocaine[,]” which is a “crystalline compound [] that

. . . is used . . . in the form of its hydrochloride as a local

anesthetic[,]” Merriam Webster’s Collegiate Dictionary 671

(10th ed. 1993), and “acetaminophen,” which is a “crystalline

4
Dr. McLaughlin explained that the buccal mucosa refers to the
lining of the inside of the mouth. See DeLeon v. State, 684 S.W.2d 774, 776
(Tex. Ct. App. 1984) (stating that the buccal mucosa “is the internal surface
of the mouth under the lips and gums”).

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compound [] that . . . is used . . . in medicine to relieve pain

and fever[.]” Id. at 9. Gregory received treatment from

December 16, 2003 to September 3, 2004.

The cost of Dr. McLaughlin’s treatment was $7,924.49.

Additionally, invoices for medical care and treatment indicated

that Gregory incurred $12,280.41 in total5 for bills relating to

the accident. The medical costs included services for X-rays,

and “CT[s]”6 of the “[m]axillofacial [a]rea[,]” “[h]ead” and

“coronal, sagittal, MU[.]”7
Moreover, Respondent testified that, when driving at a

speed of fifteen to twenty miles per hour, the side-view mirror

of his automobile hit Gregory, who was pushing a motor scooter.

After the accident, a hairline crack extended across Respondent’s

windshield. Respondent exited his car and went to Gregory, who

was moaning and “bleeding from his mouth.” Respondent carried

him to the sidewalk. Respondent saw blood “around” Gregory’s

chin and mouth.

On March 3, 2008, the court read the instructions to

the jury, explaining, inter alia, that “[g]eneral damages are
those damages which fairly and adequately compensate plaintiff(s)

5
Services for the following entities and doctors were charged as
follows: Kapiolani Medical Center for Women and Children, $3,552.45; Mid
Pacific ENT, $7,924.49; Robert Dimauro, M.D., $282.88; Ronald Hino, M.D.,
$100.59; and Ambulance, $420.00.

6
CT probably refers to a “CAT” scan. “CAT scan refers to a
computerized axial tomography scan which makes a record of the internal
structures of the body by passing x-rays through the body to act on specially
sensitized film.” Walsh v. Chan, 80 Hawai#i 188, 194 n.6, 907 P.2d 774, 780
n.6 (App. 1995), rev’d in part on other grounds but aff’d “in all other
respects,” 80 Hawai#i 212, 908 P.2d 1198 (1995) (internal quotation marks and
citation omitted).

7
These terms are not explained in the record.

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for any past, present, and reasonably probable future disability,

pain, and emotional distress caused by the injuries sustained[,]”

whereas special damages are those that “can be calculated

precisely or can be determined . . . with reasonable certainty

from the evidence.” Additionally, the court stated that pain is

“subjective, and medical science may or may not be able to

determine whether pain actually exists[,]” but the jury was to

“decide, considering all the evidence, whether pain did, does and

will exist.” Furthermore, the court instructed that if the jury
found that Respondent was liable, Petitioners were “entitled” to

damages that would “fairly and adequately compensate them for the

injuries they suffered.” To that end, the jury was to consider

the following:
1. The extent and nature of the injuries [Petitioners]
received, and also the extent to which, if at all, the
injuries they received are permanent;
2. The deformity, scars and/or disfigurement [Gregory]
received, and also the extent to which, if at all, the
deformity, scars and/or disfigurement are permanent;
3. The reasonable value of the medical services provided by
physicians, hospitals and other health care providers,
including examinations, attention and care, drugs, supplies,
and ambulance services, reasonably required and actually
given in the treatment of [Gregory];
4. The pain, emotional suffering, and disability
which they have received and are reasonably probable
to suffer in the future because of the injuries, if
any.

(Emphases added.) The court also provided the jury with a

special verdict form.

That day, March 3, 2008, the jury reached a verdict.

The jury’s special verdict determined that (1) Gregory was

injured, but Kanehele and Trishalynn were not; (2) Respondent was

negligent; (3) Respondent’s negligence was a legal cause of the

collision with Gregory; (4) Gregory was negligent; (5) the

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negligence of Gregory was a legal cause of the injury and damage

sustained by him; (6) Kanahele was negligent; (7) the negligence

of Kanahele was a legal cause of the injury and damage sustained

by Gregory; (8) Respondent was 45% at fault for the injury,

damage, or loss sustained by Gregory; (9) Gregory was 45% at

fault for the injury, damage, or loss that he sustained;

(10) Kanahele was 10% at fault for the injury, damage, or loss

that was sustained by Gregory; and (8) Gregory suffered

$12,280.41 in special damages but $0 in general damages.8
Upon approaching the bench, the parties agreed that the

verdict was defective. Respondent’s counsel stated that there

was a “flaw” in the verdict inasmuch as when the jury finds

special damages, it “must find at least one cent in general

damages[,]” because case law indicates “if you have special

damages there needs to be general damages.” Petitioners’ counsel

agreed. Respondent’s counsel proposed to give an instruction

that the jurors must find “at least one cent” in general damages,

to which Petitioners’ counsel responded that such an instruction

would be “prejudicial” because “it’s inviting them to come back
with one cent.” The court asked for supplemental briefing by the

parties, and directed the jury to return on March 5, 2008,

because it was possible that the jury would have to continue

deliberations.

On March 4, 2008, Respondent filed a supplemental

8
“General damages encompass all the damages which naturally and
necessarily result from a legal wrong done, . . . and include such items as
pain and suffering, inconvenience, and loss of enjoyment which cannot be
measured definitively in monetary terms.” Bynum v. Magno, 106 Hawai#i 81, 85,
101 P.3d 1149, 1153 (2004) (internal quotation marks and citation omitted).

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memorandum arguing that the defective verdict could be

“rectified” inasmuch as (1) the defect was discovered prior to

the acceptance of the verdict, entry of judgment, and release of

the jurors, and (2) the court had the power to resubmit a

potentially inconsistent verdict to the jury. Respondent

proffered three options for the court: (1) send the jury into

deliberation for consideration of the question regarding general

damages without further instruction, (2) send the jury back into

deliberation for consideration of the question regarding general
damages with a further instruction explaining that some general

damages must be awarded if special damages are awarded, and if

the jurors cannot agree on an amount, nominal damages would

suffice, (3) send the jury back into deliberation with a

different instruction, explaining that if special damages are

awarded, then some amount of general damages must also be

awarded, at least in the nominal amount of $1.00. Respondent

requested the second alternative.

On March 5, 2008, Petitioners filed a motion for a

“Mistrial and/or New Trial Based on Rule 7[9] and 59[10],” arguing
that the award of special damages with no general damages was

improper and the court could not remedy the defect by instructing

the jury regarding general and special damages because “[t]he

jury has spoken and the court cannot direct them [sic] to change

9
Hawai#i Rules of Civil Procedure (HRCP) Rule 7(b) (2008) provides
in pertinent part that an application for an order “shall be by motion which,
unless . . . during a hearing or trial, shall be made in writing[.]”

10
HRCP Rule 59(a) (2008) provides in pertinent part that a new trial
may be granted “in an action in which there has been a trial by jury, for any
of the reasons for which new trials have heretofore been granted in actions at
law in the courts of the State[.]”

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their [sic] mind.” According to Petitioners, “it would be

improper for the [c]ourt to direct the jury to change its mind on

the issue of general damages and come back with some other

amount. Obviously some other amount would be a nominal amount.”

(Citing Bynum, 106 Hawai#i at 85, 101 P.3d at 1153.) Petitioners

argued that the court must grant a new trial and empanel a new

jury.

On March 5, 2008, before the return of the jury, the

court and the parties held a hearing. The court explained that
the parties and the court had met in chambers on March 4, at

which time the court informed the parties of its intended action.

According to the court, “applicable case law”11 provided that an

award of special damages without general damages is inconsistent,

rendering the jury verdict in the instant case defective.

Because acceptance of the verdict would require a new trial, the

court proposed to “give the jury a supplemental jury instruction

regarding this issue,” and to tell them to deliberate on the

11
The court cited Walsh, 80 Hawai#i at 194, 907 P.2d at 780, and
Dunbar v. Thompson, 79 Hawai#i 306, 315, 901 P.2d 1285, 1294 (App. 1995).
Walsh noted that a

“zero” general damages award is either: (1) inconsistent
with the special damages award; (2) in disregard of the
proper instructions of the trial court; (3) against the
great weight of the evidence; or (4) the result of an
improper compromise by jurors unconvinced of liability but
willing to compromise their positions in return for a
limitation of damages to actual out-of-pocket losses.

80 Hawai#i at 194, 907 P.2d at 780 (citing Annotation, Validity of Verdict
Awarding Medical Expenses to Personal Injury Plaintiff, But Failing to Award
Damages for Pain and Suffering, 55 A.L.R.4th 186, 192 (1987) (other citation
omitted). Dunbar stated, “Where a defendant’s liability to a personal injury
plaintiff is established, a jury verdict which awards the plaintiff special
damages but no general damages for pain and suffering is generally regarded as
improper.” 79 Hawai#i at 315, 901 P.2d at 1294 (citations omitted).

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general damages issue alone, “with the supplemental verdict

form[.]”

Petitioners objected to the new instruction and the

supplemental special verdict form, arguing that “the jury has

already rendered an inconsistent verdict,” and “to call [it]

back, in essence re-impanel [it], and request that [it] change

[its] verdict, is contrary to law.” The court responded that it

did not accept the verdict, the court was not re-impaneling the

jury inasmuch as the court told the jury that it “was released
for the day,” and “might be going back into deliberations[,]” and

only when a court “erroneously accept[s]” an inconsistent verdict

is a new trial the only remedy.

Over Petitioners’ objection, the court provided the

jury, at 8:36 a.m. on March 5, 2008, with the following

additional instruction:
As it now stands, your answer to question number 11[ 12] on
the special verdict form regarding special and general
damages of [Gregory] is inconsistent under the law of this
state. That is because you have found personal injury and
have accordingly awarded special damages to a party, the law
reasons that there must also be some degree of compensable
general damages to that party. The degree and amount of
such compensable damages is for you to decide. To assist
you in making your decision, it may be helpful for you to
consider the instructions on damages already provided to you
by the court.

(Emphasis added.) The jury was given a supplemental special

verdict form asking, “What are the total special and general

damages of [Gregory]?” The form indicated that special damages

12
Question 11 stated, “Without regard to your answers to question
number 10 [regarding the percentage of negligence attributable to the
parties], what are the total special and general damages of [Gregory], if any?
(If you answered question number 1 ‘no’ [involving whether Gregory was
injured], then your answer to this question must be 0.)”

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was awarded for $12,280.41, and left a blank to be filled in by

the jury for the amount of general damages.

The jury returned to its deliberations, and at 9:03

a.m., the jury provided the following communication:
The jury has read the instructions and request the following
clarification. With respect to general damages for
[Gregory], what is the range the law allows? What is the
minimum under the law?

(Emphasis added.) By agreement of counsel, the court responded,

“As you have been instructed, the amount of general damages is

for you to decide.”
The jury returned to its deliberations, and at 9:35

a.m., returned with a general damages award of one dollar.

Eleven out of the twelve jurors agreed with that amount.13 The

court orally entered judgment “in accordance with the verdict and

the law.” After discharge of the jury, Petitioners renewed their

objection to allowing the jury to re-deliberate on the general

damages issue, which the court denied.

On April 3, 2008, Petitioners filed a motion for a new

trial, arguing that a new trial must be granted because (1) both

special and general damages are largely dependent on the same
proof, (2) by awarding special damages for medical expenses, the

jury must have determined that Gregory sustained some pain and

suffering, (3) the jury’s failure to award general damages was

inconsistent with its award of special damages, (4) the court’s

additional instruction, in effect, told the jury to return with a

13
“[A] civil verdict can be less than unanimous[.]” State v.
Villeza, 85 Hawai#i 258, 268, 942 P.2d 522, 532 (1997); see HRS § 635-20
(1993) (“In all civil cases tried before a jury it shall be sufficient for the
return of a verdict if at least five-sixths of the jurors agree on the
verdict.”).

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nominal amount, which is not a proper award for general damages,

and (5) the nominal $1.00 general damages award did not remedy

the defective verdict. The motion was denied on June 27, 2008.

After reduction for the negligence of Gregory, judgment “in favor

of [Gregory] and against [Respondent] and [Kanahele] for the

total amount of $6,754.77[]” was entered on June 30, 2008.14

II.

On May 1, 2009, Respondent filed a notice of appeal,15

and on May 15, 2009 Petitioners filed a notice of cross appeal.
Petitioners contended that, inter alia, the court

abused its discretion when it denied Petitioners’ (1) March 5,

2008 motion for a mistrial and/or a new trial in which

Petitioners argued that the court should not have issued a

supplemental instruction directing it to change its verdict to

comply with Hawai#i law and award an amount of general damages;

(2) April 3, 2008 motion for a new trial, in which Petitioners

argued that the verdict was inconsistent because there was

sufficient evidence to award damages for pain and suffering; and

(3) April 3 motion for a new trial, in which Petitioners argued
that the jury’s finding that Gregory was 45% at fault and

14
However, final judgment was not entered until April 24, 2009. On
July 25, 2008, Petitioners filed a notice of appeal from the judgment, but on
November 18, 2008, the ICA dismissed it for lack of jurisdiction on the ground
that the court’s judgment did not satisfy the requirements of an appealable
final judgment. The final judgment entered on April 24, 2009, in addition to
the language in the previous judgment, stated that judgment was entered “in
favor of [Respondent] and against [Trishalynn] . . . and against [Kanahele].
There are no claims or parties remaining in this case. All other remaining
claims are dismissed.”

15
The ICA rejected Respondent’s argument in his appeal. Inasmuch as
Respondent did not submit an application for certiorari challenging the ICA’s
rejection, Respondent’s assertions before the ICA, and the ICA’s decision with
respect to those assertions, are not discussed further.

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Kanahele was 10% at fault went against the great weight of the

evidence. Petitioners demanded a new trial.

On April 7, 2011, the ICA issued its SDO affirming the

final judgment of the court and rejecting the contentions

asserted by both Respondent and Petitioners.

As a preliminary matter, the ICA noted that

Petitioners’ opening brief did not comply with Hawai#i Rules of

Appellate Procedure (HRAP) Rule 28(b)(4)16 “because [it] fail[ed]

to cite where in the record the alleged errors occurred and were
objected to[,]” and warned counsel that “future violations of

HRAP Rule 28(b)(4) may result in sanctions against them.”

Kanahele, 2011 WL 1335732, at *1 n.2.

As to Petitioners’ first contention that the court

should have ordered a new trial rather than give the supplemental

instruction, the ICA reasoned that “it was within the . . .

court’s authority to provide a supplemental jury instruction and

verdict form to correct the inconsistency in the verdict[,]” id.

at *3, because (1) the “court saw that the general damages award

was inconsistent with the special damages award[, and] ‘[w]hen an
ambiguous or improper verdict is returned by the jury, the court

should permit the jury to correct the mistake before it is

discharged[,]’” id. at *2 (quoting Dias v. Vanek, 67 Haw. 114,

117, 679 P.2d 133, 135 (1984)); (2) Duk v. MGM Grand Hotel, Inc.,

16
HRAP Rule 28(b)(4) provides in pertinent part that an opening
brief shall contain “[a] concise statement of the points of error set forth in
separately numbered paragraphs. Each point shall state: . . . (ii) where in
the record the alleged error occurred; and (iii) where in the record the
alleged error was objected to . . . .” (Emphasis added.)

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320 F.3d 1052, 1058 (9th Cir. 2003)17 was relevant insofar as it

indicated that allowing the jury to correct its mistakes

conserves judicial resources, and the time and convenience of the

citizen jurors and the parties, id. at *3; (3) the “jurors

[would] deliberate in accordance with the intent of the

instructions of the court to revisit an issue,” inasmuch as it is

presumed that jurors will properly perform their duties and not

subvert the law, id. (citations omitted).

As to Petitioners’ second contention that the $1.00
general damages award was inconsistent with the evidence, the ICA

explained that since Petitioners “failed to provide transcripts

of [Kanahele’s], [Geregory’s], and [Trishalynn’s] testimonies in

which these witnesses might have testified as to Gregory[’s]

. . . injuries and his accompanying pain and suffering[,]” the

ICA “[wa]s not in a position to determine if the award of $1.00

is inconsistent with the evidence.” Id. at *3. Although a

deposition of Dr. McLaughlin, who repaired Gregory’s facial

wounds, Respondent’s testimony, and the medical invoices were in

the record, the ICA concluded that without those transcripts, it
had an “insufficient basis on which to conclude that the jury's

award was inconsistent with the evidence.” Id. (citing Lepere v.

17
Duk, 320 F.3d at 1058, held as follows:

[W]hen the jury is still available, resubmitting an
inconsistent verdict best comports with the fair and
efficient administration of justice. Allowing the jury to
correct its own mistakes conserves judicial resources and
the time and convenience of citizen jurors, as well as those
of the parties. It also allows for a resolution of the case
according to the intent of the original fact-finder, while
that body is still present and able to resolve the matter.

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United Pub. Workers, Local 646, AFL–CIO, 77 Hawai#i 471, 474, 887

P.2d 1029, 1032 (1995)).

Petitioners’ third contention, that the jury went

against the weight of the evidence in finding Kanahele 10%

liable, and Gregory 45% liable, is not raised in its Application.

On April 18, 2011, Petitioners filed a Motion for

Reconsideration on the issue of the one dollar general damages

award. On April 26, 2011, the ICA denied the motion for

reconsideration.
III.

Petitioners list the following question in the

Application:
Whether the . . . court and ICA erred by failing to grant a
new trial when the jury returned a verdict for zero general
damages then amended their verdict and awarded a nominal
amount of one dollar general damages after being instructed
by the court that they must award general damages.

Respondent filed a Response to the Application

(Response) on July 20, 2011, arguing that Petitioners’

Application should not be accepted because (1) its “Statement of

the Facts” section contains four paragraphs describing the

accident that are unsupported by record references, in violation

of HRAP Rule 28, despite the ICA’s warning that failure to comply

with HRAP in the future may result in sanctions; (2) Petitioners

have failed to carry their burden of proving that the jury failed

to meaningfully consider whether Gregory should have been awarded

a greater amount in general damages inasmuch as they do not

provide “all evidence” relevant to the issue or all the facts

that the jury considered; and (3) Petitioners misrepresented the

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ICA’s opinion to this court when stating that the ICA found the

“zero damages award was inconsistent with the evidence,

therefore, it too should have further found that the nominal

award of one dollar in general damages was inconsistent with the

evidence.” [Response at 5] (quoting Application).] (Internal

quotation marks omitted.) Respondent “asks that [this c]ourt

make a finding under Rule 38[18] of the [HRAP] so that appropriate

action may be taken[.]”19

IV.
Respondent’s first and third arguments, which are

procedural in nature, are addressed before reaching the dispute

in the Application and Response regarding the merits.

Respondent’s first argument that Petitioners’ Application be

rejected is not persuasive because (1) the four paragraphs

lacking record references are uncontested, (2) authority for

rejecting an application for noncompliance with HRAP Rule

28(b)(3) is not provided, and (3) this court’s policies support a

review of the merits of an application.

The Application’s “Statement of the Facts” section
consists of approximately three pages. While the four

paragraphs, totaling a page in length, lack record references,

the rest of the section contains citations to the record on

18
HRAP Rule 38 provides that “[i]f a Hawai#i appellate court
determines that an appeal decided by it was frivolous, it may, after a
separately filed motion or notice from the appellate court and reasonable
opportunity to respond, award damages, including reasonable attorneys' fees
and costs, to the appellee.”

19
Respondent asks for this finding, due to Petitioners’ filing of a
writ with “insufficient factual support[.]” However, inasmuch as the
Application is accepted, the Application is not “frivolous[,]” HRAP Rule 38,
and, thus, Respondent’s request for such a finding is denied.

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appeal and to the transcripts of the proceedings. The four

subject paragraphs relate to the facts of the collision, wherein

Petitioners state that (1) Gregory and Trishalynn were on their

way to school, (2) Gregory was pushing his motor scooter in a

crosswalk, (3) Gregory was hit by Respondent, who did not see

Gregory or Trishalynn before the collision, (4) the scooter

“flipped up and broke the windshield” of Respondent’s car and the

handlebar “punctured the left side of Gregory’s [cheek,]” (5) the

impact threw Gregory “approximately 17 feet to the east[,]”
(6) Gregory was transported in serious condition to the emergency

room “where he was observed for a concussion and had oral surgery

to repair the wounds to his face and mouth[,]” and (7) as a

result, Gregory sustained physical injuries and incurred general

and special damages. None of these matters are at issue since

liability and treatment are not disputed.

Respondent does not cite a case dismissing an

application or denying an appeal because of non-compliance with

HRAP Rule 28(b)(3). HRAP Rule 30 provides in pertinent part that

“[w]hen the brief of an appellant is otherwise not in conformity
with these rules, the appeal may be dismissed or the brief

stricken and monetary or other sanctions may be levied by the

appellate court[,]” (emphasis added), giving an appellate court

“discretion” to determine the proper course of action, In re

McKeague, No. 27567, 2006 WL 1892821, at *1 (July 11, 2006)

(SDO).

This “discretion” has been exercised often in favor of

reaching the merits, in light of the “‘policy of affording

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litigants the opportunity to have their cases heard on the

merits, where possible[.]’” Schefke v. Reliable Collection

Agency, Ltd., 96 Hawai#i 408, 420, 32 P.3d 52, 64 (2001) (quoting

Hous. Fin. and Dev. Corp. v. Ferguson, 91 Hawai#i 81, 85-86, 979

P.2d 1107, 1111-12 (1999)) (some internal quotation marks and

other citation omitted). Additionally, HRAP Rule 2 allows an

appellate court, “[i]n the interest of expediting a decision, or

for other good cause shown,” to “suspend the requirements or

provisions of any of these rules in a particular case . . . and
may order proceedings in accordance with its direction.” Thus,

in O’Connor v. Diocese of Honolulu, 77 Hawai#i 383, 386, 885 P.2d

361, 364 (1994), this court, “pursuant to HRAP Rule 2,”

“elect[ed]” to “address the issue posed by th[e] appeal[,]”

despite its lack of compliance with HRAP Rule 28(b)(4), quoted

supra.

In light of the fact that Respondent does not challenge

the facts in the four paragraphs as untrue, this court and the

ICA have reached the merits notwithstanding a HRAP Rule 28(b)(3)

violation in other cases, and the instant Application does not
contain numerous violations, Respondent’s request to dismiss the

Application is denied.

V.

Respondent’s third argument, that Petitioners misstated

the ICA’s opinion in declaring that the ICA found the zero

general damages award was inconsistent with the evidence, is

arguable. While Petitioners could have been more precise, lack

of precision should not result in rejection of the Application.

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The ICA stated that “the circuit court saw that the general

damages award was inconsistent with the special damages award[.]”

Kanahele, 2011 WL 1335732, at *2. Petitioners contend that the

ICA found a zero general damages award to be “inconsistent with

the evidence,” in the context of arguing that the ICA should have

found that the nominal award was inconsistent with the evidence.

(Emphasis added.) Inasmuch as the ICA stated that the court

found the lack of an award of general damages was inconsistent

with the amount of special damages, it could be inferred the zero
general damages award was inconsistent with the evidence. Thus,

this objection is not discussed further.

VI.

Turning to the question raised in the Application and

Respondent’s second argument, Petitioners assert20 that (1) there

is a general rule that a new trial must be granted when, as here,

a jury awards a zero amount in general damages after awarding the

amount requested in special damages; (2) the court, in effect,

instructed the jury to return with a nominal amount of general

damages; (3) the jury’s one dollar award is inconsistent with the
evidence and requires a new trial; (4) the ICA found that the

zero general damages award was inconsistent with the evidence and

therefore it should have found the nominal one dollar award was

also inconsistent with the evidence; and (5) the transcripts of

Petitioners’ testimony were unnecessary because “a plaintiff is

entitled to . . . compensation for pain and suffering if he is

20
Petitioners’ arguments are not listed in the order in which they
appear in the Application.

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awarded compensation for his medical expenses[,] because the same

evidence is used to prove the medical expenses as [] pain and

suffering.”21

VII.

As to Petitioners’ first assertion, it is well

established that “[a] personal injury plaintiff is generally

entitled to recover damages for all the natural and proximate

consequences of the defendant’s wrongful act or omission”; “where

a defendant’s liability to a personal injury plaintiff is
established, a jury verdict which awards the plaintiff special

damages but no general damages for pain and suffering is

generally regarded as improper,” Dunbar, 79 Hawai#i at 314-15, 901

P.2d at 1293-94,22 inasmuch as “[t]he inescapable conclusion is

21
Petitioners also contend that there is an “appearance of
impropriety” when the jury initially awards zero and subsequently awards one
dollar in general damages. Inasmuch as Petitioners fail to explain this
ground, and do not provide any supporting authority, this argument is not
discussed further.

22
In Dunbar, the plaintiff had gotten into a fight with a male named
Thompson while at Burger King (formally called Pentagram Corporation), and
subsequently sued Thompson and Burger King. The jury returned a verdict,
awarding the plaintiff $7,000 in special damages and no general damages,
finding that Thompson “intentionally or negligently legally caused injury to
[the p]laintiff],” and that both Burger King and the plaintiff were negligent.
Dunbar, 79 Hawai#i at 312, 901 P.2d at 1291 (brackets omitted). The jury
found that Burger King’s negligence was not a legal cause of the plaintiff’s
injury, but then attributed 10% of fault to Burger King. Id. at 313, 901 P.2d
at 1292. The circuit court then entered judgment against Thompson and in
favor of the plaintiff for $3,850, and entered judgment in favor of Burger
King.
The plaintiff argued that “the jury's special verdict responses as
to [Burger King’s] liability and the amount of Plaintiff's damages were
irreconcilably inconsistent.” Id. at 312, 901 P.2d at 1291. The ICA
determined that the verdict was inconsistent as to liability because “there
was no dispute at trial that [the p]laintiff sustained at least some injury as
a result of the incident[,]” and “the jury's finding that [Burger King] caused
the incident with the jury's finding that [Burger King] did not cause the
injuries that undisputably resulted from the incident” was irreconcilable.
Id. at 314, 901 P.2d at 1293.
With respect to the inconsistency in the award of special damages
as compared to the general damages issue, the plaintiff had claimed
entitlement to special damages of $4,368.26 for medical expenses and $60,422
for loss of income. The ICA determined that it was unclear what the jury’s
(continued...)

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that the jury awarded . . . medical expenses which [the

plaintiff] had incurred and failed to award any damages for pain

and suffering[,]” Powers v. Johnson, 562 So. 2d 367, 370 (Fla.

Dist. Ct. App. 1990). In such circumstances, it may be

appropriate to “remand . . . to the trial court for a new trial

on the issue of general damages.” Id.; see Smith v. Uhrich, 704

P.2d 698, 699-700 (Wyo. 1985) (reversing and remanding “for a new

trial on the issue of general damages” when the jury returned a

verdict finding special damages but no general damages). In a
similar vein, the ICA has remanded for a new trial on damages

when the parties stipulated to the defendant’s liability, “and

the only issue on appeal [wa]s damages[.]” Walsh, 80 Hawai#i at

196, 907 P.2d at 782. Thus, Petitioner is correct that when an

award of special damages indicating physical injury is rendered,

a zero award of general damages is improper and generally results

in a new trial on general damages when liability is not disputed.

However, when, as here, “the jury [wa]s still

available,” it was within the court’s discretion to determine

that “resubmitting an inconsistent verdict best comport[ed] with
the fair and efficient administration of justice.” Duk, 320 F.3d

at 1058. Permitting a jury to “correct its own mistakes

conserves judicial resources and the time and convenience of

22
(...continued)
award of $7,000 in special damages was meant to encompass, but if the $7,000
included an award for medical expenses, it was inconsistent for the jury not
to award the plaintiff even a small amount for pain and suffering, since both
special damages for medical expenses and general damages for pain and
suffering are largely dependent on the same proof. Id. at 315, 901 P.2d at
1294. Because liability and damages were disputed, the ICA remanded for a new
trial on all issues. Id. at 316, 901 P.2d at 1295.

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citizen jurors, as well as those of the parties[,]” and allows

the case to be resolved “according to the intent of the original

fact-finder, while that body is still present and able to resolve

the matter.” Id. Accordingly, the court did not abuse its

discretion in resubmitting the damages issue to the jury, rather

than ordering a new trial, after the zero general damages

verdict.

VIII.

Contrary to Petitioners’ second assertion, on
resubmittal the court did not instruct the jury to return with a

nominal amount but, instead, acted within its discretion by

having the jury return, see Dias, 67 Haw. at 118, 679 P.2d at 136

(“The preferred remedy of an ambiguous verdict is to have the

jurors return to clarify the verdict.”), by asking for

supplemental briefing, and by providing the jury with further

instruction, see Auwood v. Harry Brandt Booking Office, Inc., 850

F.2d 884, 891 (2d Cir. 1988) (noting that the trial court has

discretion to “resubmit the issues to the jury with a request for

clarification[,]” “whether or not the parties themselves request
clarification”). As noted supra, the court instructed that

Petitioners were entitled to damages to compensate Gregory for

“injuries” incurred. The court properly explained the law, and

directed the jury to consider Gregory’s injuries, when awarding

general damages. See Beard v. Flying J, Inc., 266 F.3d 792, 799

(8th Cir. 2001) (stating that the trial court “sent the jury back

for further deliberations” when believing that the jury had

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rendered an inconsistent verdict). Thus, the court did not “in

effect” tell the jury to return with a nominal amount.

IX.

However, as to their third and fourth assertions,

Petitioners are correct inasmuch as verdicts that award special

damages indicative of pain and suffering, but zero or nominal

general damages, have been invalidated on the grounds that the

general damages award is (1) “inconsistent with the special

damages award[,]” (2) “in disregard of the proper instructions of
the trial court[,]” (3) “against the great weight of the

evidence[,]” or (4) “the result of an improper compromise by

jurors unconvinced of liability but willing to compromise their

positions in return for a limitation of damages to actual

out-of-pocket losses.” Dunbar, 79 Hawai#i at 315, 901 P.2d at

1294 (internal citations omitted); see also Walsh, 80 Hawai#i at

194, 907 P.2d at 780 (listing the four reasons). The first three

grounds are readily evident in this case.

A.

Petitioners are correct that the return of a $1.00
general damages award, in light of a $12,280.41 award of special

damages for medical treatments, renders the verdict inconsistent

and requires a new trial on damages. The award of $1.00 was a

nominal award that did not mitigate the zero award previously

given, despite the court’s resubmittal of the damages issue to

the jury. In this case the $1.00 general damages award was the

symbolic equivalent of a no award verdict that the jury had

previously rendered.

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1.

While compensatory damages “seek to restore a plaintiff

to his or her position prior to the tortious act[,]” nominal

damages are “a small and trivial sum awarded for a technical

injury due to a violation of some legal right and as a

consequence of which some damages must be awarded to determine

the right.” Zanakis-Pico v. Cutter Dodge, Inc., 98 Hawai#i 309,

327, 47 P.3d 1222, 1240 (2002) (Acoba, J., concurring) (internal

quotation marks and citations omitted). “[N]ominal damages are a
token award only” and “a vast majority of cases . . . usually

adjudge one dollar to be the amount.” Ferreira v. Honolulu

Star-Bulletin, Ltd., 44 Haw. 567, 579, 356 P.2d 651, 658 (1960);

see Black’s Law Dictionary 447 (9th ed. 2009) (defining nominal

damages as, inter alia, “[a] trifling sum awarded when no legal

injury is suffered but there is no substantial loss or injury to

be compensated”). “[N]ominal damages may not exceed $1.00.”

Minatoya v. Mousel, 2 Haw. App. 1, 6, 625 P.2d 378, 382 (1981).

“Nominal damages means no damages at all[,]” Hall v. Cornett, 240

P.2d 231, 235 (Or. 1952), and are but “a mere peg to hang costs
on[,]” Ferreira, 44 Haw. at 579, 356 P.2d at 658. In the

instant case, the jury’s verdict of $1.00 was a “small and

trivial sum[,]” Zanakis-Pico, 98 Hawai#i at 327, 47 P.3d at 1240

(2002), inconsistent with medical treatment amounting to over

$12,000.

2.

Thus, “[w]e must[] . . . consider the . . . verdict in

its entirety as one giving noncompensatory and merely nominal

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general damages plus substantial special damages[.]” Hall, 240

P.2d at 236. When a jury awards special damages but nominal

general damages, if there is “sufficient evidence to support an

award for pain and suffering[,]” the “verdict is characterized as

inconsistent[.]” Walsh, 80 Hawai#i at 194, 907 P.2d at 780. In

the instant case, “sufficient evidence” supporting an award “for

pain and suffering” exists, as demonstrated supra, thereby

rendering the verdict that awarded nominal general damages but

substantial special damages, “inconsistent[.]” Id. Dunbar and
Walsh are instructive in this regard.

In part, Dunbar involved a challenge to the jury’s

award of no general damages as inconsistent with an award of

$7,000 special damages and was against the great weight of the

evidence. 79 Hawai#i at 313, 901 P.2d at 1292. The ICA reasoned

that “it was inconsistent for the jury not to award [the

p]laintiff even a small amount for pain and suffering,” because

“both special damages for medical expenses and general damages

for pain and suffering are largely dependent on the same proof.”

Id. at 315, 901 P.2d at 1294. Moreover, the verdict went against
the great weight of the evidence inasmuch as the “uncontroverted”

evidence “adduced at trial” demonstrated that the plaintiff was

knocked to the floor and sustained a gash to her head, resulting

in “profuse bleeding” and requiring stitches. Id. Because of

those injuries, the plaintiff “clearly experienced” “pain and

suffering[.]” Id.

Here, “it was inconsistent for the jury,” id., to award

a nominal amount of $1.00 as general damages inasmuch as “both

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special damages for medical expenses and general damages for pain

and suffering are largely dependent on the same proof[,]” id.

The special damages “proof” indicated that Gregory endured pain

and suffering. The “uncontroverted” evidence from Dr. McLaughlin

demonstrated that the handlebar of a racer scooter penetrated

Gregory’s cheek, and by the time he arrived at the hospital, he

was in “mild to moderate distress and pain” and surgery was

performed. Medical invoices admitted into evidence also show

that Gregory was treated for an “open wound[,]” he had a head
injury, he was given pain killers, he had numerous stitches, and

he was treated over a period of almost a year. In this regard,

the court and the ICA should have found the $1.00 award was as

inconsistent with the evidence as the zero award.

Additionally, as noted before, Respondent testified

that he hit Gregory when driving at the speed of fifteen to

twenty miles per hour, and as a result of the collision,

Respondent’s windshield was cracked. Thus, insofar as the

“proof” indicated that Gregory was struck by a car, was

consequently injured, incurred surgery and other medical
treatment therefor, and endured at least mild to moderate

distress and pain from injuries stemming from the collision, it

was plainly inconsistent for the jury to award $1.00 in general

damages.

Walsh also involved a challenge to a verdict awarding

the plaintiff $8,600 special damages and no general damages. 80

Hawai#i at 194, 907 P.2d at 780. There, the ICA determined that

the “damage award [was] inconsistent because in awarding the

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amount of $6,100 towards medical care, the jury determined that

part of [the plaintiff’s] injuries was caused by the accident and

there was evidence of pain and suffering[.]” Id. The evidence

of pain and suffering adduced at trial included a doctor’s

testimony that the injections, surgery, and post-operative

recovery were painful. However, if the jury decided the

injections, surgery, and post operative recovery were not due to

the injury, “there still [was] sufficient evidence that [the

plaintiff] experienced pain and suffering to require some award
of general damages.” Id. at 195, 907 P.2d at 781.

To that end, the “sufficient evidence” consisted of

(1) the “total value” of medical care, which was $6,100 and

consistent with the jury’s award of that amount for medical care;

and (2) the jury’s award of $2,500 for lost wages, a month’s pay,

which was “indicative” of the jury’s conclusion that the

plaintiff’s injuries “sufficiently disabled him from working[.]”

Id. The ICA reasoned that, “[b]y awarding special damages for

medical expenses, the jury must have determined that [the

plaintiff] sustained some injury[,]” and therefore “it was
inconsistent for the jury not to find some pain and suffering”

for the injury attributable to the accident and “award at least

some amount for general damages.” Id.

Similarly, in the instant case, Dr. McLaughlin’s

testimony, Respondent’s testimony, and the medical invoices,

constituted “sufficient evidence that [Gregory] experienced pain

and suffering to require some award of general damages”

“consistent,” id. at 195, 907 P.2d at 781, with the amount

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awarded as special damages. Because the verdict was

inconsistent, “the judgment of the [] court [and the ICA]” are

vacated and the case “remand[ed] for a new trial.” Dunbar, 79

Hawai#i at 316, 901 P.2d at 1295.

B.

As to (2), the jury disregarding the law, Walsh is

apposite. There, the ICA determined that the jury disregarded

the law because, in light of the instructions that are similar to

the instant case, the plaintiff was entitled to general damages
adequately compensating him for, inter alia, his injuries,

medical services, and pain and suffering. Here, as in Walsh, the

court instructed the jury that if Respondent was liable,

Petitioners were to be awarded damages for pain and suffering.

However, here the jury gave only $1.00 for pain and suffering,

thereby disregarding the court’s instruction that the jury was to

consider “the extent and nature of the injuries received,” “the

reasonable value of the medical services provided,” and “the

pain, emotional suffering and disability” incurred by Gregory.

Demonstrating the jury’s disregard of the court’s directive was
the jury communication asking what the “minimum” award required

under the law was, indicating that the jury was not considering

fair and adequate compensation for Gregory, but seeking to

reinstate its first verdict of zero to the extent possible.

Thus, it can be inferred reasonably that the jury disregarded the

court’s instruction on damages.

C.

As to (3), it is plain that the verdict was against the

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great weight of the evidence, as contained in Dr. McLaughlin’s

testimony, Respondent’s testimony, and the medical invoices.

However, Respondent contends that Petitioners’ failure to provide

the court with all supporting and contradictory23 references

requires rejection of the Application, relying on what Respondent

views as “cogent[]” language from the ICA opinion:
The burden is upon appellant in an appeal to show
error by reference to matters in the record, and he has the
responsibility of providing an adequate transcript.
Moreover, if the appellant wishes to urge that a finding or
conclusion is unsupported by the evidence, he must include a
transcript of all the evidence relevant to such finding or
conclusion.
. . . .
The law is clear in this jurisdiction that the
appellant has the burden of furnishing the appellate court
with a sufficient record to positively show the alleged
error. An appellant must include in the record all of the
evidence on which the lower court might have based its
findings and if this is not done, the lower court must be
affirmed.

Kanahele, 2011 WL 1335732, at *4 (quoting Union Bldg. Materials

Corp. v. Kakaako Corp., 5 Haw. App. 146, 151–52, 682 P.2d 82, 87

(1984) (ellipsis in original)) (citations and emphasis omitted).

However, that language was used in rejecting Petitioners’

contention that there was “error” as to liability when the jury

found Kanahele 10% liable and Gregory 45% liable. Id.
Understandably, transcripts of the parties, “which would likely

have provided evidence as to alleged liability,” id., may be

necessary in determining that the apportionment of liability was

appropriate. However, this issue is not raised in the

Application; the only issue is whether the general damages award

was proper and, as set forth supra, there is a “sufficient record

23
Respondent does not indicate what “contradictory” evidence exists.

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to positively show the alleged error.” Union Bldg. Materials, 5

Haw. App. at 151, 682 P.2d at 87.

X.

In connection with Petitioners’ fifth assertion, the

ICA determined that without transcripts of Gregory’s,

Trishalynn’s, and Kanahele’s testimonies, it had an insufficient

basis to conclude that the jury’s award was inconsistent with the

evidence. Kanahele, 2011 WL 1335732, at *3. However, under the

circumstances of this case, these transcripts were unnecessary to
conclude that the general damages award was improper. To

reiterate, in the instant case, there was “probative evidence” of

Gregory’s pain and suffering in the form of Dr. McLaughlin’s

testimony, Respondent’s testimony, and the medical invoices, as

discussed supra, to reasonably justify compensation in excess of

$1.00. See Walsh, 80 Hawai#i at 195, 907 P.2d at 781 (stating

that the testimony of a doctor, combined with the medical

records, amounted to sufficient evidence of pain and suffering).

A zero award of general damages may be allowed to

stand, despite an award of special damages, when “the evidence
indicate[d] a dispute over the amount of claimed special

damages[]” such that “the zero-general-damages verdict [i]s

evidence of the jury's intent to include in the special damages

award an amount for pain and suffering[,]” or “there is no

probative evidence that the plaintiff incurred pain and suffering

as a consequence of the defendant’s act[,]” or “where the only

evidence of pain and suffering is the plaintiff's subjective

testimony, which the jury could reasonably have concluded was

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exaggerated or lacking in credibility.” Dunbar, 79 Hawai#i at

316, 901 P.2d at 1295 (citations omitted). None of those

circumstances exist here. Indeed, Respondent conceded on the

record after the jury’s zero general damages award that the

general damages award was inconsistent with the special damages

award.

Consequently, Petitioners met their burden of

“furnishing the appellate court with a sufficient record to

positively show the alleged error.” Union Bldg. Materials, 5
Haw. App. at 151, 682 P.2d at 87. The award of $1.00 was, at the

least, “inconsistent” with the evidence and, contrary to the

ICA’s SDO in this regard, the testimonies of Petitioners were not

necessary to reach that determination.24 Thus, the ICA gravely

erred in concluding the evidence was insufficient to decide

whether a $1.00 general damages award was inconsistent with the

special damages award.

XI.

Based on the foregoing, the April 27, 2011 judgment of

the ICA is reversed, the April 24, 2009 judgment of the court is
affirmed, except the damages award is vacated, and the case is

24
Of course, insofar as the transcript testimony of Trishalynn and
Kanahele related to their own claims of emotional distress, the transcripts
would not be germane to Gregory’s general damages claim.

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remanded to the court for a new trial on special and general

damages.25

Richard Turbin, (Rai Saint /s/ Mark E. Recktenwald
Chu and Janice D. Heidt with
him on the application and /s/ Paula A. Nakayama
briefs) (Turbin Chu, a Law
Corporation), for /s/ Simeon R. Acoba, Jr.
petitioners/plaintiffs-
appellees/cross-appellants. /s/ James E. Duffy, Jr.

James T. Wong /s/ Sabrina S. McKenna
for respondent/defendant-
appellant/cross-appellee.

25
In their Application, Petitioners requested remand on the issue of
damages. Proof of special damages may be interrelated with proof of general
damages. As observed in Dunbar, “both special damages for medical expenses
and general damages for pain and suffering are largely dependent on the same
proof[.]” 79 Hawai#i at 315, 901 P.2d at 1294. Thus, in the instant case, we
remand for a new trial on special and general damages.

32