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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
06-AUG-2026
09:24 AM
Dkt. 46 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---RAMONA RICAPOR-HALL,
Plaintiff-Appellee/Cross-Appellant,
vs.
PHILIP MORRIS USA INC.,
Defendant-Appellant/Cross-Appellee,
and
R.J. REYNOLDS TOBACCO COMPANY; LIGGETT GROUP LLC;
FOODLAND SUPER MARKET, LIMITED,
Defendants-Appellees/Cross-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 1CCV-XX-XXXXXXX)
AUGUST 6, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND
CIRCUIT JUDGE KIMURA, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY EDDINS, J.
I.
Ramona Ricapor-Hall smoked for sixty-six years.
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A jury found that Philip Morris helped keep her smoking
through decades of fraud about the dangers of cigarettes. Those
cigarettes, it concluded, caused her lung cancer. The jury
awarded Ricapor-Hall $6 million in general damages and $8
million in punitive damages.
The circuit court cut the general damages nearly in half.
Because the jury found Ricapor-Hall partly at fault for her
injuries, the court reduced her recovery by her share of
negligence. Even on her claim that Philip Morris conspired to
defraud.
That was error. We hold that a plaintiff’s negligence does
not reduce damages for an intentional tort. Ricapor-Hall’s
cross-appeal on that issue succeeds.
Philip Morris challenges the verdict on four grounds: the
recall of discharged alternate jurors, the court’s inquiry into
Juror 30’s alleged bias, two refused jury instructions, and the
availability of punitive damages.
Each fails.
Hawaiʻi Rules of Civil Procedure (HRCP) Rule 47(b) did not
bar the circuit court from recalling alternates it had earlier
discharged.
No further investigation of Juror 30 was required. Philip
Morris never made the showing that would have compelled it. The
court adequately investigated anyway.
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The two proposed jury instructions were properly denied.
Philip Morris’ preexisting injury instruction was unnecessary
once the court limited damages to Ricapor-Hall’s lung cancer.
And cigarettes are not an unavoidably unsafe product.
Also nothing bars punitive damages. Ricapor-Hall’s claim
was not covered by the tobacco industry’s past settlement with
the states. Nor precluded by any earlier lawsuit.
Longstanding precedent and sound policy foreclose using
comparative negligence to shrink recovery against an intentional
wrongdoer. We therefore vacate the portion of the final
judgment reducing Ricapor-Hall’s damages and remand for entry of
an amended judgment for the full amount. In all other respects,
we affirm.
II.
A. The Master Settlement Agreement
In 1997, the State of Hawaiʻi sued Philip Morris and other
major cigarette manufacturers. The State sued through its
attorney general, in a sovereign capacity. The complaint
invoked the State’s “parens patriae responsibility to protect
the health and safety of its citizens.”
The suit sought three things. Recovery of public funds the
State spent treating Hawaiʻi residents with smoking-related
disease. Disclosure of the industry’s internal records. And
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punitive damages. It did not seek relief for injuries suffered
by individual smokers.
In 1998, the State’s suit settled, along with parallel
suits brought by the attorneys general of most other states.
The settlement is known as the Master Settlement Agreement
(MSA). Among other things, the MSA restricted cigarette
marketing, required the industry to make formerly confidential
records public, and set up a system of annual payments to the
states based on each manufacturer’s market share.
One MSA provision matters to this appeal. The MSA defined
“Releasing Parties” to identify whose claims the settlement
released. That definition reaches persons acting in a “parens
patriae, sovereign, quasi-sovereign, private attorney general,
qui tam, taxpayer, or any other capacity,” but only “to the
extent” they seek “relief on behalf of or generally applicable
to the general public,” “as opposed solely to private or
individual relief for separate and distinct injuries.” Private
claims for individual injuries were not released.
B. Ramona Ricapor-Hall
Ramona Ricapor-Hall started smoking in 1953. She was
twelve years old. Cigarette packages would carry no warning
labels for another thirteen years.
By 1953, the scientific evidence linking cigarettes to lung
cancer was emerging into public view. The major cigarette
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manufacturers responded not by warning the public, but by
reassuring it that the science was unsettled. They conspired to
deceive the public about the safety of smoking. Publicly, they
peddled doubt. Privately, their own records acknowledged the
deadly hazards.
Ricapor-Hall kept smoking for sixty-six years. She relied
on the manufacturers’ assurances when she decided to keep
smoking. She tried many times to quit. Her nicotine addiction
defeated those efforts. She relapsed again and again.
In 2019, doctors diagnosed Ricapor-Hall with lung cancer.
A second primary lung cancer followed. In 2021, she sued Philip
Morris and other manufacturers and vendors for her lung cancer.
C. The Trial
Before trial, Ricapor-Hall settled with every defendant
except Philip Morris. Her remaining claims against Philip
Morris went to a bifurcated jury trial: negligence, strict
products liability, and two conspiracy claims, conspiracy to
commit fraudulent concealment and conspiracy to commit
fraudulent misrepresentation. Phase one addressed liability,
compensatory damages, and whether punitive damages could be
awarded. Phase two would fix the amount of any punitive
damages.
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1. The Comparative Negligence Ruling
Midway through trial, the circuit court asked the parties
to brief a remedy question. How would damages be calculated if
the jury found Ricapor-Hall comparatively negligent and also
found Philip Morris liable for conspiracy, an intentional tort?
The parties agreed on two points. For Ricapor-Hall’s
negligence claim, Hawaiʻi Revised Statutes (HRS) § 663-31’s
(2016) modified comparative negligence framework would govern.
For her strict products liability claim, pure comparative
negligence would apply. See Hao v. Owens-Illinois, Inc., 69
Haw. 231, 738 P.2d 416 (1987).
The parties split on the conspiracy claims. Ricapor-Hall
maintained that comparative negligence cannot reduce damages for
an intentional tort, because “it is impossible to compare the
fault of a plaintiff with the intentional conduct of a
defendant.” Philip Morris argued the opposite, asserting that
“Hawaiʻi law allows for application of pure comparative fault
principles to intentional tort claims.”
The circuit court adopted Philip Morris’ position. It
instructed the jury that if it found for Ricapor-Hall on her
“strict products liability or conspiracy claims,” the court
would “reduce the amount of damages” by Ricapor-Hall’s
percentage of negligence, “regardless of any percentage of
responsibility” assigned to her. Ricapor-Hall objected.
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2. The Disputed Jury Instructions
Four other jury instruction rulings matter to the issues on
appeal.
The court declined to give an instruction on apportioning
damages among preexisting injuries. Both parties had proposed
versions. The court declined them because no expert had offered
an apportionment opinion, and “[a] jury cannot rely upon pure
conjecture and speculation on a question of medical
apportionment.”
The court did instruct, at Philip Morris’ request, that
Ricapor-Hall’s claims were limited to her lung cancer. The jury
was told that although it had heard evidence of Ricapor-Hall’s
“other diseases or conditions, including [COPD], peripheral
vascular diseases, and heart disease,” she was “only asserting
claims” for “her own lung cancer and the related treatment,” and
there was “no claim” that Philip Morris caused “any other
disease.” The jury was further told it could award “only”
damages “legally caused by” Philip Morris’ cigarettes,
negligence, or fraud, and not “speculative damages.”
The court declined Philip Morris’ proposed instruction on
unavoidably unsafe products. That instruction, drawn from
comment k of the Restatement (Second) of Torts § 402A (1965),
would have told the jury that “[u]nless the product unreasonably
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exposes users to risk of injury, there is no liability for
supplying an unavoidably unsafe product.”
The court gave the parties’ agreed instruction on the scope
of punitive damages. The jury was told it could “not seek to
punish [Philip Morris] for any conduct except that conduct of
[Philip Morris] that [Ricapor-Hall] has shown to have caused her
injuries,” and that it could “not impose punitive damages on
[Philip Morris] in order to punish it for[] harms suffered by
other people.”
3. The Alternate Jurors
The jury retired to deliberate on phase one on August 11,
2023. Three alternate jurors remained.
The circuit court did not permanently release the
alternates. It told them their “service may not be done,” that
it was “done for today,” and that the court would contact them
“if we need your service in the future.” It directed the
alternates to keep following the instruction not to discuss the
case, told them they remained “under the court’s supervision for
jury service,” and promised day-to-day updates on their status.
Philip Morris objected. It argued that HRCP Rule 47(b)
required the court to permanently discharge the alternates once
deliberations began, and that the alternates would therefore be
unavailable if a juror were later lost. The court overruled the
objection. Because the trial was bifurcated and phase two would
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proceed before the same jury, the court reasoned, the alternates
would “remain subject to call.” Replacing them with new
alternates for phase two, the court explained, “would be
disruptive and prejudicial to the parties.”
4. Juror 30
On the morning of August 17, 2023, the fourth full day of
phase one deliberations, Juror 30 told the court, through the
bailiff, that she “may feel” she “cannot be a fair and impartial
juror.” The court suspended deliberations and recessed the
jury.
Philip Morris moved for a mistrial. It argued that the
jury was now short a member, that HRCP Rule 47(b) barred
substituting an alternate, and that the court’s questioning of
Juror 30 had to be confined to confirming what she told the
bailiff. Any further inquiry, Philip Morris said, would
“trespass into the area of the thought processes of a sitting
juror.” The court denied the motion without prejudice, finding
it had too little information to rule.
The court brought Juror 30 into the courtroom alone. She
explained that she had encountered “some of the details” of the
MSA while researching disaster-relief funds, and that the
information had “colored” her view of “this whole case.”
What Juror 30 said about the other jurors was equivocal.
She said she “tried not to tell them anything about it,” but
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that they “kind of got wind of the MSA” when she explained her
vote. She also said she “held that information back,” that the
others “don’t know,” and that she did not know whether anything
“slipped out” during her explanation. Asked directly whether
she recalled saying anything about the MSA during deliberations,
she answered, “No.”
The court offered both sides the chance to question Juror
30. Neither did. With the agreement of counsel, the court
excused her.
5. The Investigation and the Substitutions
With Juror 30 excused, Ricapor-Hall asked the court to
proceed with eleven jurors. Philip Morris again moved for a
mistrial, arguing the jury was tainted and that HRCP Rule 47(b)
forbade substituting an alternate.
The court decided to question each remaining juror,
individually, about whether Juror 30 had exposed them to outside
information. It recessed and asked both parties to propose
questions. Ricapor-Hall proposed a sequence: first ask whether
the juror received outside information, and only if so, ask how
it influenced them. Philip Morris proposed nothing. It said
juror questioning was “a fruitless act” and that it had not had
the chance to brief the issue.
The court made three rulings. It denied the renewed
mistrial motion. It ruled that substituting an alternate was
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proper, because in a bifurcated trial “all deliberations have
not yet begun” until phase two deliberations begin. And it
decided to call each juror in alone and ask a single question.
The court worked through several drafts of that question
with counsel. As it did, Philip Morris objected that the
question would not capture “what information [the jury]
received.” The court again asked Philip Morris what question it
would pose. Philip Morris again declined to say. The court
explained its concern: pressing jurors for the specifics of the
extraneous information could “attract[] more attention than
less” and invite the very mistrial Philip Morris sought.
The court then questioned the eleven remaining jurors one
at a time. Each was questioned “in the presence of” that person
alone “and the absence of all other jurors.” The court asked
the same questions of each: whether, if the juror “heard any
comments or statements made by [Juror 30] during the jury’s
deliberations about information that was not evidence in this
case,” the juror could “still be a fair and impartial juror in
this case.”
One juror first answered “No.” But it was unclear which
question he was answering. Had he heard nothing? Or could he
no longer be impartial?
The court did not let the uncertainty stand. It brought
the juror back and asked him directly whether he had heard Juror
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30 “say anything about something that was not evidence in the
case.” He answered: “No, Your Honor. I never heard anything
from them.” Asked then whether he could be fair and impartial,
he said he could. Every one of the eleven jurors confirmed that
they could remain fair and impartial. Philip Morris asked no
follow-up questions.
The court seated the first alternate in Juror 30’s place.
It instructed the reconstituted jury to “begin your
deliberations all over,” to “express your positions and then
revote on everything,” and to proceed “as if we were just
starting now.”
A second substitution followed. On August 22, 2023, the
court excused Juror 33 to accommodate travel plans the juror had
disclosed during jury selection, reasoning that keeping the
juror would delay deliberations by three days. Philip Morris
renewed its mistrial motion. The court denied it.
The court seated the second alternate. It instructed the
jury to “begin jury deliberations all over again,” to consider
the evidence and law “as if previous deliberations have not
occurred,” to select a new foreperson, and to vote anew on a new
verdict form. The court asked any juror who could not follow
those instructions to raise a hand. None did.
The reconstituted jury then deliberated for over eight
hours before reaching its phase one verdict. At no point did
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the jury report a deadlock.
6. The Verdicts and the Judgment
The phase one verdict went against Philip Morris on every
claim. The jury found for Ricapor-Hall on strict products
liability, negligence, and both conspiracy counts. It found
Philip Morris’ cigarettes defectively designed and its conduct
negligent. And it concluded that Philip Morris conspired to
conceal and misrepresent cigarettes’ harms — a deception
Ricapor-Hall reasonably believed.
The jury awarded Ricapor-Hall $6 million in general
damages. It assigned fault to both sides. Fifty-four percent
to Philip Morris. Forty-six percent to Ricapor-Hall. And it
found that Philip Morris’ conduct was intentional, willful,
wanton, oppressive, or grossly negligent, exposing Philip Morris
to punitive damages.
Phase two turned to the amount. Both parties reminded the
jury that punitive damages could only punish Philip Morris for
the harm it caused Ricapor-Hall, not for harm to anyone else.
The jury awarded $8 million in punitive damages.
On October 10, 2023, the circuit court entered final
judgment. Applying its comparative negligence ruling, the court
reduced Ricapor-Hall’s $6,000,000 in general damages by her
forty-six percent share of fault, to $3,240,000, citing HRS
§ 663-31, Hao, and Ozaki v. Assʼn of Apartment Owners of
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Discovery Bay, 87 Hawaiʻi 265, 954 P.2d 644 (1998). After
crediting Philip Morris for prior settlement with the codefendants, the final judgment totaled $11,095,000.
D. The Appeals
Philip Morris appealed. It raised four claims of error.
First, that HRCP Rule 47(b) barred recalling discharged
alternates and substituting them mid-deliberation. Second, that
the court failed to adequately investigate whether Juror 30
exposed the jury to outside information. Third, that the court
should have instructed the jury on apportioning preexisting
injuries and on unavoidably unsafe products. And fourth, that
the MSA precluded any award of punitive damages.
Ricapor-Hall cross-appealed. She argued that the circuit
court was wrong to reduce her damages on the conspiracy claims,
because a plaintiff’s negligence does not reduce damages for an
intentional tort.
We accepted transfer of the case from the Intermediate
Court of Appeals.
III.
A. The Circuit Court’s Juror Substitutions Do Not Warrant a
New Trial
Philip Morris raises two challenges to the jury that
decided phase one. It says the circuit court violated HRCP Rule
47(b) by recalling discharged alternates and substituting them
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in during deliberations. And it says the court failed to
adequately investigate whether Juror 30 exposed the jury to
outside information.
Neither challenge warrants a new trial.
1. HRCP Rule 47(b) Does Not Bar Recalling Discharged
Alternates
HRCP Rule 47(b) provides that “[a]n alternate juror who
does not replace a regular juror shall be discharged after the
jury retires to consider its verdict.” Philip Morris reads this
to mean that alternate jurors “must be discharged after
deliberations begin, and may not replace a regular juror after
that time.”
The rule does not say that.
HRCP Rule 47(b) makes discharge mandatory. See Malahoff v.
Saito, 111 Hawaiʻi 168, 191, 140 P.3d 401, 424 (2006) (“shall” is
“construed as mandatory”). But the rule does not define
“discharge.” And nothing in its text compels the conclusion
that discharge must be permanent.
We construe the Hawaiʻi Rules of Civil Procedure under the
same principles that govern statutory interpretation. Gap v.
Puna Geothermal Venture, 106 Hawaiʻi 325, 331, 104 P.3d 912, 918
(2004). We give the rule’s words their ordinary meaning, and
when a term is undefined, we may consult dictionaries to
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determine that meaning. Rodriguez v. Mauna Kea Resort LLC, 156
Hawaiʻi 289, 293, 574 P.3d 309, 313 (2025).
Black’s Law Dictionary defines “discharge of juror” as
“[t]he relieving of a . . . juror, . . . from further
responsibilities in a case.” Discharge, Black’s Law Dictionary
581 (12th ed. 2024). The New Oxford American Dictionary defines
“discharge” as to “tell (someone) officially that they can or
must leave.” Discharge, New Oxford American Dictionary 485
(2001).
Neither definition compels permanence. Black’s speaks of
relief from responsibilities in a case. But here the alternates
were told the case was not over for them, that their “service
may not be done,” and that they remained “under the court’s
supervision for jury service.” New Oxford is broader still.
Telling a juror they “can” leave is not telling them they must
never return. Nothing in either forecloses recall.
In the context of alternate jurors, “discharge” means
temporarily relieving alternates of their responsibilities for
the time being. Alternates serve provisionally by design.
Throughout trial, alternates sit next to the regular jurors
as the evidence comes in. See HRCP Rule 47(b). When the twelve
jurors retire to deliberate, the alternates do not go with them.
Their responsibilities pause. The court “discharges” them. It
tells them they may leave.
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But “discharge” does not mean “permanently sever.” A
discharged alternate may be called back. HRCP Rule 47(b)
doesn’t forbid it.
Other courts have read identical language the same way.
Before Federal Rule of Criminal Procedure 24(c) was amended in
1999 to expressly authorize mid-deliberation substitutions, the
Fourth Circuit construed the unamended rule to permit them. The
rule then provided, as HRCP Rule 47(b) provides now, that an
alternate “shall be discharged after the jury retires to
consider its verdict.” United States v. Evans, 635 F.2d 1124,
1127 (4th Cir. 1980). The rule, the court explained, “does not
purport[] . . . to deny power to the trial court to reconstitute
someone as a juror who previously has been discharged.” Id.;
see also Cork v. State, 433 So.2d 959, 963 (Ala. Crim. App.
1983) (same).
Our rule tracks the federal rule Evans construed, word for
word. It carries the same meaning. HRCP Rule 47(b) does not
strip a trial court of the power to recall a discharged
alternate.
The defendant in Evans favored the substitution. Philip
Morris didn’t. No matter. The Fourth Circuit’s construction
turned on the rule’s text, not the parties’ consent. The power
to recall a discharged alternate belongs to the court, and it
does not appear and disappear with the litigants’ preferences.
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Reading HRCP Rule 47(b) Philip Morris’ way would frustrate
the purpose the rules serve. The HRCP “shall be construed and
administered to secure the just, speedy, and inexpensive
determination of every action.” HRCP Rule 1(a). A rule that
forced a court to toss a month of trial whenever a juror became
unavailable during deliberations, even with vetted alternates
standing ready, would serve none of those ends. It would defeat
all three.
The concern is not abstract. This trial lasted over a
month. It consumed substantial judicial resources. And
Ricapor-Hall is eighty-five years old, in declining health. A
construction of HRCP Rule 47(b) that required this case to be
tried twice is not one the text commands, and not one HRCP Rule
1(a) tolerates.
The Hawaiʻi Rules of Civil Procedure are liberally construed
to promote justice. Struzik v. City & Cnty. of Honolulu, 50
Haw. 241, 246, 437 P.2d 880, 884 (1968).
The circuit court here proceeded with care. When the jury
retired on phase one, the court excused the alternates only “for
today,” held them to the instruction not to discuss the case,
and told them they might be recalled. When a juror was later
lost, the court recalled an alternate and had the jury start its
deliberations over. That’s what careful use of HRCP Rule 47(b)
looks like.
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The circuit court did not violate HRCP Rule 47(b).
The parties also dispute when, in a bifurcated trial, the
jury “retires to consider its verdict.” Because our reading of
“discharge” permits recall regardless, we do not decide it.
2. Any Violation of HRCP Rule 47(b) Was Harmless
Even if the substitutions skirted HRCP Rule 47(b), the
violation would not warrant a new trial. Any error was
harmless.
Faulty trial rulings are subject to harmless error review.
See HRCP Rule 61; Bank of Hawaii v. Shinn, 120 Hawaiʻi 1, 12, 200
P.3d 370, 381 (2008). HRCP Rule 61 is written broadly and
admits no exception. “[N]o error or defect in any ruling or
order or in anything done or omitted by the court” is ground for
a new trial “unless refusal to take such action appears to the
court inconsistent with substantial justice.” HRCP Rule 61.
Philip Morris’ contention that juror-substitution errors
escape this rule rests on out-of-state authority. But our own
rule and our own precedent control. HRCP Rule 61 allows no
exception, and we applied harmless error analysis to the
analogous criminal rule in State v. Wideman, 69 Haw. 268, 269,
739 P.2d 931, 932 (1987). The cases Philip Morris gathers from
other jurisdictions give us no reason to read an exception into
a rule that contains none.
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Philip Morris itself acknowledges that “replacing a
deliberating juror with an alternate is not per se harmful.”
Philip Morris points to one risk in particular. A juror
substituted after deliberations have begun “is subject to
potential undue pressure from the original jury members to reach
a conclusion they may have agreed upon during their prior
deliberations.” Wideman, 69 Haw. at 269, 739 P.2d at 932.
That risk, though, is one a trial court can manage through
its instructions. The circuit court did. After each
substitution, it instructed the jury to begin deliberations
anew. The instructions were specific. Select a new foreperson.
Use a new verdict form. Weigh the evidence and the law “as if
previous deliberations had not occurred.” Re-state positions
and revote on every question.
The court invited any juror who could not follow those
directions to speak up. None did. The start-over instruction’s
absence troubled the court in Wideman. See 69 Haw. at 269, 739
P.2d at 932 (faulting “the lack of an instruction to the new
jury to begin its deliberations anew”). Here it was given. And
given in detail.
Juries are “presumed to be reasonable and follow all of the
trial court’s instructions.” Myers v. South Seas Corp., 76
Hawaiʻi 161, 165, 871 P.2d 1231, 1235 (1994).
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Philip Morris invokes the dissent from this court’s denial
of certiorari in State v. Baldado, No. SCWC-29623, 2011 WL
6144302 (Haw. Dec. 1, 2011). A dissent from a cert denial
decides nothing and binds no one. Even on its own terms, it
does not help Philip Morris. The dissent reasoned that the
presumption was “reasonably called into question” where a jury
deliberated for days, reported that it was deadlocked, and then
returned a verdict less than six hours after an alternate was
seated. Id. at *2 (Acoba, J., dissenting).
This case bears no resemblance to that one. This jury
never deadlocked. And the reconstituted jury deliberated over
eight hours before reaching its verdict, longer than the undersix-hour verdict that troubled the Baldado dissenters.
Nothing in this record rebuts the presumption that the jury
followed the circuit court’s instructions. Any violation of
HRCP Rule 47(b) was harmless. The substitutions do not warrant
a new trial.
B. The Circuit Court’s Investigation of Juror 30 Does Not
Warrant a New Trial
During phase one deliberations, Juror 30 told the court she
had come across outside information about a settlement between
tobacco companies and the states.
The circuit court questioned her, excused her, and then
questioned each remaining juror individually, outside the
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presence of the other jurors. Philip Morris maintains that this
investigation was inadequate.
The argument fails at the threshold. Philip Morris never
made the showing that would have triggered a duty to investigate
at all. And even if it had, the investigation was sufficient
and any misconduct was harmless.
1. Philip Morris Did Not Make a Prima Facie Showing
“[T]rial courts have wide latitude to assess the nature of
alleged juror misconduct and its prejudicial impact on a
defendant’s right to a fair trial.” State v. Grewer, 157 Hawaiʻi
104, 111, 575 P.3d 737, 744 (2025).
When a party claims it was denied a fair trial by an
impartial jury, the trial court first determines “whether the
nature of the alleged deprivation rises to the level of being
substantially prejudicial.” State v. Chin, 135 Hawaiʻi 437, 445,
353 P.3d 979, 987 (2015). “If it does not rise to such a level,
the trial court is under no duty to interrogate the jury.” Id.
The burden rests on the complaining party. It must make “a
prima facie showing of a deprivation that could substantially
prejudice [its] right to a fair trial by an impartial jury.”
Id. at 443, 353 P.3d at 985. That requires “‘some specific,
substantial evidence’ showing the occurrence of the outside
influence that may have possibly biased the juror.” Id. at 443
n.10, 353 P.3d at 985 n.10.
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When the alleged deprivation rests on statements made
during deliberations, the showing is more demanding still. See
State v. Gabalis, 83 Hawaiʻi 40, 47, 924 P.2d 534, 541 (1996);
see also State v. Kim, 103 Hawaiʻi 285, 292, 81 P.3d 1200, 1207
(2003).
Our cases setting out this framework arose in criminal
appeals. Neither party identifies a Hawaiʻi civil decision
applying a different rule, and both litigate this appeal under
the same standard. We hold that the Chin framework applies in
civil cases as well. The right to a fair trial before an
impartial jury is not the criminal law’s alone.
Philip Morris does not carry its burden. It falls short
for two reasons.
First, the record contains no specific, substantial
evidence that an outside influence reached the other jurors.
At the prima facie stage, Philip Morris need not prove
prejudice. But it must show “the occurrence” of an outside
influence that “may have possibly” prejudiced the jury, and it
must do so with “specific, substantial evidence.” Chin, 135
Hawaiʻi at 443 n.10, 353 P.3d at 985 n.10. Evidence that is
“pure conjecture,” or merely “equivocal,” isn’t good enough.
State v. Amorin, 58 Haw. 623, 631, 574 P.2d 895, 900 (1978);
State v. Okumura, 78 Hawaiʻi 383, 396, 894 P.2d 80, 93 (1995).
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Juror 30’s account was equivocal. See supra II.C.4. She
said she “held that information back,” that the others “don’t
know,” and that she “tried not to tell [the jurors] anything
about it.” But she also said the jurors “kind of got wind of
the MSA” when she explained her vote and that she did not know
whether anything “slipped out.” Asked directly whether she
recalled saying anything about the MSA during deliberations, she
answered, “No.”
Equivocation doesn’t meet that standard. Juror 30 herself
did not know whether she had conveyed anything to anyone. To
infer that she did, and that what she conveyed could have biased
the jury, would be conjecture. See State v. Blanding, 69 Haw.
583, 587, 752 P.2d 99, 101 (1988) (rejecting a prejudice claim
where it was “unclear what statements were overheard”).
Philip Morris now says the record is too thin to tell what
happened. But Philip Morris made it that way.
Before the court questioned Juror 30, Philip Morris
insisted that the court could “only . . . confirm what she said
to [the] bailiff” and could go no further. After the court
questioned Juror 30, it offered Philip Morris the chance to
question her. Philip Morris passed.
After the court excused Juror 30, it asked both parties to
propose questions for the remaining jurors. Philip Morris
proposed none. When the court revised its proposed question and
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again asked for input, Philip Morris offered none. And when the
court questioned the remaining jurors one by one, it afforded
Philip Morris the opportunity to question each in turn. Philip
Morris declined every time.
Four opportunities. Four refusals.
Philip Morris’ only explanation was that it did not have
time to review the caselaw. Instead of helping develop a
record, it pressed for a mistrial. But a litigant cannot refuse
to take part in the court’s inquiry, plead lack of time to
prepare, and then assign error to the gaps that refusal left
behind. See Leyson v. Steuermann, 5 Haw. App. 504, 520, 705
P.2d 37, 48 (App. 1985).
Whether Juror 30 herself was influenced does not matter.
The court excused her. What matters is whether a potentially
biasing influence reached the jurors who decided the case. On
that question, the record is silent.
Second, even assuming an outside influence reached the
jury, Philip Morris has not shown that it was used as a
circumstance against it.
Because Philip Morris alleges a deprivation based on
statements made during deliberations, it must show “that
improper juror comments during deliberations have been used as a
circumstance against” it. Gabalis, 83 Hawaiʻi at 47, 924 P.2d at
541. Absent that showing, the alleged deprivation does not
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“rise to the level of being substantially prejudicial.” Id. at
46, 924 P.2d at 540.
Philip Morris makes no such showing. The record does not
reveal what Juror 30 said, how it shaped her own view, how she
voted when she said it, or whether her remarks cut for Philip
Morris or against it. The record is blank on each point.
That uncertainty sinks the claim, because information about
the settlement agreement could favor either side. A juror might
take the agreement as proof of Philip Morris’ wrongdoing. Or a
juror might take it the other way, as a sign that Philip Morris
had already paid billions under the settlement and therefore the
company had been punished enough. That inference would favor
Philip Morris, not Ricapor-Hall.
Rather than show how Juror 30’s remarks were used against
it, Philip Morris simply assumes they were. But see Kim, 103
Hawaiʻi at 292, 81 P.3d at 1207 (requiring the complaining party
to “show how” a juror’s statements were “used as a circumstance
against” them). An assumption is not a prima facie showing. To
presume that unidentified remarks, of unknown content, biased
the jury against Philip Morris would be to rest a new trial on a
hunch.
Philip Morris’ allegations do not raise a rebuttable
presumption of prejudice. See Gabalis, 83 Hawaiʻi at 46, 924
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P.2d at 540. The circuit court therefore had no duty to
investigate at all.
2. The Circuit Court’s Decision to Investigate Does Not
Mean Philip Morris Met its Burden
Philip Morris argues that because the circuit court chose
to question the jurors, the court must have found a prima facie
showing.
A trial court may question jurors “as a precautionary
measure,” even without finding substantial prejudice. State v.
Keohokapu, 127 Hawaiʻi 91, 102 n.18, 276 P.3d 660, 671 n.18
(2012). “Absent a ruling from the court on the question of
prejudice, it would seem incorrect . . . to infer that the court
implicitly determined that there was substantial prejudice.”
Id.
The circuit court’s decision to question the remaining
jurors reflects caution, not a finding that Philip Morris had
carried a burden it never tried to carry.
3. Even if Philip Morris Made a Prima Facie Showing, a
New Trial Is Not Warranted
Were we to assume a prima facie showing, the result would
not change. The circuit court’s investigation was sufficient,
and any misconduct was harmless.
a. The Investigation Was Adequate
Once a rebuttable presumption of prejudice arises, “the
trial judge is . . . duty bound to further investigate the
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totality of the circumstances surrounding the outside influence
to determine its impact on jury impartiality.” Chin, 135 Hawaiʻi
at 448, 353 P.3d at 990 (cleaned up). That duty includes
“individual examination of potentially tainted jurors, outside
the presence of the other jurors, to determine the influence, if
any, of the extraneous matters.” Id.
The circuit court did exactly that. It examined each
remaining juror one at a time. The record reflects that each
juror was questioned alone, in “the absence of all other
jurors.” The court did not question the jurors as a group. It
questioned them in isolation, the very method Chin prescribes.
And it crafted its question only after extended discussion and
several revisions, with input from Ricapor-Hall and no proposed
question from Philip Morris.
The court asked each juror the same question. The question
covered any statement Juror 30 made “at any time while the jury
was deliberating.” It asked whether a juror who “heard any
comments or statements made by [Juror 30] during the jury’s
deliberations about information that was not evidence in this
case” could “still be a fair and impartial juror in this case.”
All eleven jurors answered that they could remain fair and
impartial.
Philip Morris had no follow-up for them.
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The circuit court was right to phrase its inquiry with
care. Juror 30’s own account had not established what specific
information she encountered, much less whether she shared any of
it. Pressing the remaining jurors for the details of the
settlement agreement risked teaching them the very information
the court was trying to keep out, and risked, as the court put
it, “attract[ing] more attention than less.” The court chose a
question that tested impartiality without contaminating the
jury.
Philip Morris contends the court should have proceeded in
stages, asking first what each juror heard, next what was said,
and only last whether the juror could remain impartial. The
court followed that sequence when a juror’s answer called for
it. See supra II.C.5. When one juror first answered with an
ambiguous “No,” the court brought him back, asked directly
whether he had heard Juror 30 “say anything about something that
was not evidence in the case,” and got a clear answer: “No, Your
Honor. I never heard anything from them.” Only then did the
court turn to impartiality. The court used the steps Philip
Morris says it skipped.
Could the circuit court have asked more of every juror?
Perhaps. But the availability of a more searching approach does
not make the approach taken deficient. The court’s question was
sufficient to “determine” the influence, if any, on the jury’s
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impartiality. Chin, 135 Hawaiʻi at 448, 353 P.3d at 990. Before
a verdict is returned, a trial court may “rely on the jurors[’]”
own assessment of “whether they could remain impartial.” State
v. Gouveia, 139 Hawaiʻi 70, 80, 384 P.3d 846, 856 (2016).
The circuit court acted well within its “wide latitude” to
assess alleged misconduct and its effect on the right to a fair
trial. Grewer, 157 Hawaiʻi at 111, 575 P.3d at 744.
Philip Morris’ authorities do not require more. It relies
on State v. Pokini for the proposition that a court must examine
“objective as well as subjective indicia” of impartiality. 55
Haw. 640, 643, 526 P.2d 94, 100 (1974). But Pokini imposed that
requirement in a specific setting: “[w]here pre-trial publicity
is as extensive and as likely prejudicial as it was here.” Id.
The defendants there made a substantial factual showing of
adverse pre-trial publicity, including extensive coverage of a
prior trial and conviction. Id. at 642, 526 P.2d at 99.
Against that backdrop, “perfunctory and generalized questions”
were not enough. Id. at 643, 526 P.2d at 100.
This case is not Pokini. Any outside influence here, if it
occurred at all, was limited in scope and unknown in content.
It is nothing like the extensive, demonstrably adverse publicity
that drove Pokini.
Philip Morris also relies on Gov’t of the Virgin Islands v.
Dowling, where the Third Circuit faulted a trial court for
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jumping “to the ultimate issue” of impartiality without first
determining what information the jurors had received. 814 F.2d
134, 140 (3d Cir. 1987). But in Dowling the content of the
communication was known. A juror had told the others about the
defendant’s prior bank robbery conviction. Id. at 135-36. The
error there was bypassing facts already in the record. Here,
the content of any communication is not in the record, because
Juror 30 herself did not know what, if anything, she had
conveyed.
The circuit court investigated what could be investigated.
That was enough.
b. Any Misconduct Was Harmless
Even where a rebuttable presumption of prejudice arises,
the verdict stands if “it is clearly shown that the juror’s
conduct could not have affected the verdict.” Lopez v. Sears
Roebuck & Co., 70 Haw. 562, 564, 777 P.2d 715, 717 (1989).
That standard is met here. Whatever Juror 30 might have
communicated about the settlement agreement, the jury already
knew the substance of it.
The jury heard about the attorneys general lawsuits and the
settlement that followed. A trial witness testified that
formerly secret tobacco industry documents “were released
through litigation as a part of certain settlements,”
principally a settlement involving “the attorney generals of the
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states that sued the tobacco industry.” Ricapor-Hall’s counsel
described the same lawsuits and disclosures in opening. That
the settlement existed, and that it compelled the release of
internal documents, was not new information.
The jury also heard about the post-1998 restrictions on
tobacco marketing. Philip Morris itself elicited that
testimony, cross-examining Ricapor-Hall’s expert about the
government’s “post-1998 regulation” of how tobacco companies
operate and establishing that certain advertising was “no longer
allowed” as of 1998.
And the jury was well aware of Philip Morris’ wealth. It
heard that Philip Morris is the nation’s leading cigarette
manufacturer and had spent “billions of dollars” merely to study
the “psychology of women” for marketing purposes. Any inference
about the company’s resources that the settlement agreement
might have suggested was an inference the jury could already
draw.
Philip Morris isolates two facts it says the jury never
learned: the specific dollar figures it paid under the
settlement, and that the marketing restrictions were imposed by
that settlement in particular. But the jury knew Philip Morris
had been sued, knew the suit had settled, knew internal
documents had been disclosed, knew marketing was restricted, and
knew the company operated on an international scale. Attaching
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the label “MSA” to facts already in evidence does not convert
them into something prejudicial. Whatever Juror 30 may have
said could not have told the jury anything that mattered which
it did not already know.
Philip Morris did not make its prima facie showing. Even
if it had, the circuit court’s investigation was sufficient and
any misconduct was harmless. The circumstances surrounding
Juror 30 do not warrant a new trial.
C. The Preexisting Conditions Instruction Was Redundant
Philip Morris asked the circuit court to instruct the jury
on how to apportion damages among Ricapor-Hall’s diagnoses. The
court declined.
That was not error.
A trial court must give a proposed instruction when it (1)
“accurately states the law,” (2) “is applicable to an issue
presented,” and (3) “is not needlessly duplicative.” Medeiros
v. Choy, 142 Hawaiʻi 233, 240, 418 P.3d 574, 581 (2018). Philip
Morris’ instruction cleared the first. Not the second or third.
The circuit court’s other instructions already limited the
jury’s award to Ricapor-Hall’s lung cancer. The jury was told
that Ricapor-Hall “is only asserting claims” for her “lung
cancer and the related treatment.” It heard that although
evidence of her “other diseases or conditions, including [COPD],
peripheral vascular diseases, and heart disease” had come in,
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there was “no claim” that Philip Morris caused “any other
disease.” It was told it could award “only” damages “legally
caused by” Philip Morris’ cigarettes, negligence, or fraud, and
not “speculative damages.”
These instructions took every disease but lung cancer off
the table. The jury could not award damages for COPD. Or heart
disease. Or peripheral vascular disease. There was nothing to
split.
We presume the jury acted reasonably and followed the
court’s instructions. Myers, 76 Hawaiʻi at 165, 871 P.2d at
1235. Nothing suggests the jury strayed. Presuming otherwise,
as Philip Morris asks, is “impermissible.” Kato v. Funari, 118
Hawaiʻi 375, 383-84, 191 P.3d 1052, 1060-61 (2008) (rejecting
presumption that jury awarded damages for “pre-existing
conditions and post-accident injuries” when instructed to limit
damages to those “legally caused by [defendant’s] negligence”).
Philip Morris says Hawaiʻi law puts the apportionment burden
on the plaintiff. See Loui v. Oakley, 50 Haw. 260, 264 n.3, 438
P.2d 393, 397 n.3 (1968).
True. But apportionment presupposes injuries to divide.
Here there was one injury. Ricapor-Hall limited her claim to
lung cancer. The instructions kept the jury there.
The record confirms the point. Preexisting injuries are “a
question of fact for which medical testimony is especially
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appropriate.” Montalvo v. Lapez, 77 Hawaiʻi 282, 299, 884 P.2d
345, 362 (1994). Philip Morris presented no expert who assigned
any part of her lung cancer to another cause. When the chance
came, Philip Morris passed. A litigant cannot manufacture error
from a foundation it chose not to build.
Philip Morris also points to Ricapor-Hall’s closing, where
counsel told the jury it would “have to . . . put a monetary
amount to a pair of healthy lungs.” It did not object. And
read in context, counsel was inviting the jury to value what her
lung cancer took, not her other conditions.
No jury instruction error. No new trial.
D. Cigarettes Are Not an Unavoidably Unsafe Product
Philip Morris asked for a jury instruction drawn from
comment k of the Restatement (Second) of Torts § 402A. The
court declined.
The court got it right.
Comment k exempts sellers of products “which, in the
present state of human knowledge, are quite incapable of being
made safe for their intended and ordinary use.” Restatement
(Second) of Torts § 402A cmt. k, at 353.
Take Pasteur’s rabies vaccine. The Restatement’s leading
example. Rabies “invariably leads to a dreadful death.” Id.
The vaccine itself carries an “unavoidable high degree of risk.”
Id. But because rabies is fatal without it, the vaccine’s use
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is “fully justified.” Id. The comment extends to “many other
drugs, vaccines, and the like.” Id. at 354.
Comment k trades known risk for meaningful benefit. The
kind of benefit that saves lives or averts serious disease.
Cigarettes flip the equation. They cause disease. They do
not cure it.
This court has rejected comment k for a product with real
medical value. Cigarettes have none. In Larsen, the
manufacturer of a recalled pacemaker sought comment k cover.
Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 22, 837 P.2d 1273,
1285 (1992). This court refused. The pacemaker was not
“sufficiently analogous to a new and experimental drug to
warrant comment k exemption.” Id. at 24-25, 837 P.2d at 1286.
The analogy doesn’t stretch to cigarettes. They treat
nothing. They prevent nothing. If a pacemaker cannot invoke
comment k, cigarettes have no chance. A pacemaker saves lives.
A cigarette ends them.
Philip Morris hangs its argument on Ricapor-Hall’s
testimony that she “enjoyed smoking.” Pleasure is not the
benefit comment k contemplates. Comment k concerns products
whose benefits are substantial enough to justify their known
risks. The rabies vaccine. Prescription drugs. Medical
devices. See Restatement (Second) of Torts § 402A cmt. k;
Pollard v. Ashby, 793 S.W.2d 394, 399 (Mo. Ct. App. 1990)
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(collecting drug cases); Tansy v. Dacomed Corp., 890 P.2d 881,
885 (Okla. 1994) (collecting device cases).
No court has extended comment k to cigarettes. See
Guilbeault v. R.J. Reynolds Tobacco Co., 84 F. Supp. 2d 263, 279
n.6 (D.R.I. 2000) (comment k “not relevant” to a cigarette
manufacturer).
Cigarettes fall outside comment k. The proposed
instruction had no basis.
The instruction was defective for another reason. Comment
k immunity is an affirmative defense. See Burningham v. Wright
Med. Tech., Inc., 448 P.3d 1283, 1291 (Utah 2019); Tansy, 890
P.2d at 886. Philip Morris had the burden. Its instruction
never told the jury that.
No error. Comment k protects vaccines. Not cigarettes.
E. Ricapor-Hall’s Punitive Damages Claim Survives
Philip Morris’ final challenge concerns punitive damages.
It contends the MSA between the tobacco industry and the states
barred Ricapor-Hall’s claim. And that if the MSA didn’t, claim
preclusion did.
Both arguments fail.
1. The MSA Preserves the Claim
Settlement agreements are contracts. Exotics Hawaii-Kona,
Inc. v. E.I. du Pont de Nemours & Co., 116 Hawaiʻi 277, 288, 172
P.3d 1021, 1032 (2007). When parties settle a case, their
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agreement defines its preclusive reach. See Hite v. Queen’s
Hosp., 36 Haw. 250, 308 (Haw. Terr. 1942); Wong v. Cayetano, 111
Hawaiʻi 462, 481, 143 P.3d 1, 20 (2006).
The MSA’s text answers the question.
The MSA releases claims by “Releasing Parties.” The term
covers anyone in a “private attorney general” or “any other
capacity.” But only when they seek “relief on behalf of or
generally applicable to the general public,” “as opposed solely
to private or individual relief for separate and distinct
injuries.”
That draws the line.
Ricapor-Hall was not a Releasing Party. She did not sue on
behalf of the general public. She sought damages for her own
lung cancer. And she sought punitive damages tied to Philip
Morris’ conduct toward her, not anyone else.
Everyone at trial said so. The circuit court instructed
the jury that it could “not impose punitive damages on [Philip
Morris] in order to punish it for[] harms suffered by other
people,” and that it could punish Philip Morris only for conduct
“shown to have caused [Ricapor-Hall’s] injuries.” RicaporHall’s counsel told the jury, “It’s about her. It’s about her.”
Philip Morris’ counsel took the same position: “this is not a
referendum on smoking. . . . [I]t has to be tied to Mrs.
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Ricapor-Hall.” And again at closing, counsel argued “general
harms” were “not the purpose of awarding punitive damages here.”
Philip Morris said it at trial. It is bound by it now.
Other courts have read the MSA the same way. In Laramie,
the Massachusetts Supreme Judicial Court held that the MSA
“released Philip Morris from liability for punitive damages to
persons . . . seeking relief on behalf of the general public”
but “preserved claims for individual relief for separate and
distinct injuries.” Laramie v. Philip Morris USA, Inc., 173
N.E.3d 731, 740 (Mass. 2021). So did Williams. See Williams v.
R.J. Reynolds Tobacco Co., 271 P.3d 103, 113 (Or. 2011).
The MSA does not bar Ricapor-Hall’s punitive damages.
2. Claim Preclusion Misses Two Elements
Claim preclusion requires (1) “a final judgment on the
merits,” (2) “both parties are the same or are in privity,” and
(3) “the claim decided in the original suit is identical with
the one presented in the action in question.” Priceline.com,
Inc. v. Dir. of Tax’n, 144 Hawaiʻi 72, 82, 436 P.3d 1155, 1165
(2019).
Here, two of the three elements are missing.
a. The Claims Are Not Identical
Ricapor-Hall’s claims could not have been litigated in the
1997 Attorney General suit. They had not yet accrued. Doctors
detected her lung cancer in 2019, twenty-two years later.
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Claim preclusion is “inapplicable in a later suit where the
cause of action did not accrue until after the complaint in a
prior action was filed.” Wong, 111 Hawaiʻi at 478, 143 P.3d at
17. The rule does not reach claims that did not yet exist.
Philip Morris says the two lawsuits are identical because
both punished it for the same fraudulent conduct. This misses
the point.
The Attorney General sued to recover the State’s economic
burden. Medicaid costs, public healthcare spending, and other
public losses. Ricapor-Hall sued for the harm to her lungs. As
Philip Morris told the jury, “general harms” were “not the
purpose of awarding punitive damages here.” Same defendant.
Different wrongs.
Other courts see two suits, not one. See Laramie, 173
N.E.3d at 746 (plaintiff’s wrong was “the loss she and her
daughter sustained”; the Attorney General’s was “the
Commonwealth’s increased medical expenditures”); Williams, 271
P.3d at 112 n.11; In re Exxon Valdez, 270 F.3d 1215, 1227-28
(9th Cir. 2001) (public and private punitive damages claims are
“distinct”); Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1260-61 (Fla. 2006).
b. The Parties Are Not in Privity
The Attorney General did not represent Ricapor-Hall’s
interest. It sued for the State’s own economic injuries, not
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for the personal injuries of smokers. Ricapor-Hall sued for her
injuries. Those interests diverge.
Philip Morris’ contrary argument rests on the premise that
punitive damages in Hawaiʻi serve an “exclusively public”
purpose. They do not.
This court recently observed that “punitive damages
increasingly remedy social rather than purely individual harms.”
Guieb v. Guieb, 156 Hawaiʻi 162, 172, 571 P.3d 382, 392 (2025)
(emphasis added). “Increasingly” is doing work. The public
dimension of punitive damages is additive, not exclusive. See
Howell v. Associated Hotels, Ltd., 40 Haw. 492, 499-500 (Haw.
Terr. 1954) (recognizing compensatory effect of exemplary
damages); Masaki v. Gen. Motors Corp., 71 Haw. 1, 8 n.2, 780
P.2d 566, 571 n.2 (1989) (identifying functions of punitive
damages: preserving the peace, inducing private enforcement,
compensating for uncompensable losses, and paying attorney
fees).
As this case shows, punitive damages can serve private
ends. The court told the jury to punish Philip Morris only for
conduct that caused Ricapor-Hall’s injuries. So did both sides.
Her interest in the punitive award was hers alone.
Philip Morris also invokes Hawaiʻi’s private attorney
general doctrine. But it’s a fee-shifting rule for plaintiffs
who vindicate important public rights. See In re Water Use
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Permit Applications, 96 Hawaiʻi 27, 29, 25 P.3d 802, 804 (2001).
Ricapor-Hall did not seek attorney fees. She did not vindicate
a public right. She sought damages for her own injury. The
doctrine doesn’t fit.
Philip Morris urges us to follow Gault and Fabiano.
Neither controls. Gault turned on a Georgia statute that limits
products liability defendants to a single punitive damages award
and diverts seventy-five percent to the state treasury. Brown &
Williamson Tobacco Corp. v. Gault, 627 S.E.2d 549, 552 (Ga.
2006). Fabiano turned on a New York rule that confines punitive
damages to conduct “affecting the public generally.” Fabiano v.
Philip Morris Inc., 862 N.Y.S.2d 487, 490 (N.Y. App. Div. 2008).
Hawaiʻi has neither rule.
Laramie and Williams read the MSA itself. Both went the
other way. So do we.
Claim preclusion does not apply.
The circuit court called it correctly. Verdict stands.
F. The Circuit Court Erred in Reducing Ricapor-Hall’s Award
Ricapor-Hall raises one issue. She says the circuit court
was wrong to reduce her damages by her percentage of comparative
negligence on the conspiracy claims. A plaintiff’s negligence,
she argues, does not reduce damages for an intentional tort.
Ricapor-Hall is right.
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An intentional tort is a choice. The tortfeasor intends
the act and intends the injury. Aloha Petroleum, Ltd. v. Nat’l
Union Fire Ins. Co. of Pittsburgh, 155 Hawaiʻi 108, 120, 557 P.3d
837, 849 (2024).
Hawaiʻi law does not reward a defendant for targeting the
careless over the careful. As this court colorfully stated more
than a century ago, the law “is not designed to protect the
vigilant alone, . . . but is intended as a protection to even
the foolishly credulous as against the machinations of the
designedly wicked.” Cummins v. Cummins, 24 Haw. 116, 119 (Haw.
Terr. 1917).
We affirm that principle. A plaintiff’s negligence does
not reduce damages for an intentional tort. One who
deliberately inflicts harm may not benefit from their victim’s
negligence.
1. HRS § 663-31 Applies Only to Negligence Claims
Before HRS § 663-31, all negligence claims were subject to
the common law doctrine of contributory negligence. Ozaki v.
Ass’n of Apartment Owners of Discovery Bay (Ozaki II), 87 Hawaiʻi
265, 269, 954 P.2d 644, 648 (1998). The old regime was all-ornothing. A plaintiff’s negligence completely barred recovery.
Id.
The Legislature softened the doctrine in 1969. Wong v.
Hawaiian Scenic Tours, Ltd., 64 Haw. 401, 405, 642 P.2d 930, 933
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(1982) (per curiam) (“The legislative modification of the
doctrine of contributory negligence . . . sought to temper a
phase of the common law deemed inconsistent with contemporary
notions of fairness.”). HRS § 663-31 only bars recovery when a
plaintiff’s negligence is “greater” than the negligence of all
defendants. HRS § 663-31. Otherwise, it reduces a negligent
plaintiff’s recovery based on their “proportion” of fault. Id.
Here, though, the statute does not apply to the intentional
tort claims against Philip Morris. “Statutory interpretation
starts with the statute’s words.” Alpha, Inc. v. Bd. of Water
Supply, 154 Hawaiʻi 486, 490, 555 P.3d 173, 177 (2024). By its
terms, the statute governs only actions “for negligence.” HRS
§ 663-31. In addition to a negligence claim, Ricapor-Hall also
alleged the intentional torts of conspiracy to commit fraudulent
concealment and conspiracy to commit fraudulent
misrepresentation. See 16 Am. Jur. 2d Conspiracy § 53 (“civil
conspiracy is an intentional tort”).
In the Special Verdict form, the jury found general damages
of $6 million. There is no assignment of damages to specific
claims and no way to apply HRS § 663-31 only to the negligence
claim. So HRS § 663-31 does not control.
2. Pure Comparative Negligence Does Not Apply Per Cummins
That leaves the common law. The circuit court reduced
Ricapor-Hall’s damages by forty-six percent based on her
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negligence. It should not have.
Cummins forecloses it. In fraud cases, reducing damages by
the victim’s negligence clashes with more than a century of
Hawaiʻi law.
Long ago, this court held that “a person guilty of
fraudulent misrepresentation cannot escape the effects of his
fault on the ground of the injured party’s negligence.”
Cummins, 24 Haw. at 120-21. That principle was “well settled”
even then. Id. at 122. The court explained:
[W]here it appears that one party has been guilty of an
intentional and deliberate fraud, by which, to his
knowledge, the other party has been misled, or influenced
in his action, he cannot escape the legal consequences of
his fraudulent conduct by saying that the fraud might have
been discovered had the party whom he deceived exercised
reasonable diligence and care.
Id. Put simply, a “party guilty of fraud can take no benefit”
from the victim’s carelessness. Id.
Cummins’ rule is rooted in policy. The law would rather
“encourage negligence in the foolish” than “fraud in the
deceitful.” Id. at 119. What the defendant did matters more
than what the plaintiff failed to do.
Comparative negligence principles have evolved in other
areas of the law, but Cummins’ prohibition remains. Compare
Hao, 69 Haw. at 236, 738 P.2d at 418-19 (applying pure
comparative negligence to strict products liability claims),
with Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawaiʻi 149,
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163, 73 P.3d 687, 701 (2003) (citing Cummins’ rule).
Cummins forbids reducing damages for fraudulent conduct
based on the victim’s negligence. The circuit court did just
that.
The jury found Philip Morris liable on conspiracy to commit
fraudulent misrepresentation. That finding required proof of an
intentionally false or misleading representation, intent to
induce Ricapor-Hall’s reliance, and Ricapor-Hall’s reliance on
the false representation to her detriment.
The jury awarded Ricapor-Hall general damages for this
deliberate, fraudulent misconduct. The circuit court cut that
award by forty-six percent based on her negligence.
The result violates Cummins. Philip Morris engaged in
“fraudulent conduct” that misled Ricapor-Hall to her detriment.
Yet the circuit court let it “escape the effects of [its] fault
on the ground of [Ricapor-Hall’s] negligence” when it slashed
damages by forty-six percent. Cummins, 24 Haw. at 121-22.
The jury’s negligence finding does not change the result.
Where a plaintiff prevails on both negligence and intentionaltort theories covering the same injury, with damages not
specified for each claim, the intentional-tort verdict shields
the full award from comparative reduction. Otherwise the extra
win on negligence would penalize the plaintiff, not the
defendant.
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Philip Morris’ $2,760,000 windfall makes the error
unmistakable. The court let a fraudulent actor profit from its
victim’s failure to “exercise[] reasonable diligence and care.”
Id. at 122.
Philip Morris seeks to confine Cummins to complete bars.
It offers two versions of the same argument. First, that
Cummins’ language of “escape” reaches only outright avoidance of
liability, not reductions in damages. Second, that because
Cummins was decided when contributory negligence was itself an
all-or-nothing defense, its rule likewise addresses only
complete bars, not partial reductions.
Both readings shrink Cummins. The court did not speak of
liability alone. It spoke of “the effects” of a defendant’s
wrongdoing. Id. at 121. And it forbade parties “guilty of an
intentional and deliberate fraud” from “escap[ing] the legal
consequences of [their] fraudulent conduct,” based on an injured
party’s negligence. Id. at 121-22 (emphasis added).
Legal consequences include damages. See Kanahele v. Han,
125 Hawaiʻi 446, 457-58, 263 P.3d 726, 737-38 (2011) (damages
awarded as a “consequence of” the violation of a legal right);
see also Damages, Black’s Law Dictionary 488 (12th ed. 2024).
Reducing Ricapor-Hall’s damages let Philip Morris escape
legal consequences “on the ground of the injured party’s
negligence.” Cummins, 24 Haw. at 121. That the escape is
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partial, rather than total, does not save it. And that Cummins
arose in a contributory negligence world does not confine its
principle to that world.
Cummins does more than announce a rule. It explains why
the rule reaches damages reductions too. “[T]he party guilty of
fraud can take no benefit” from their victim’s failure to
“exercise[] reasonable diligence and care.” Cummins, 24 Haw. at
122 (emphasis added). Paying less in damages is a benefit.
Comparative negligence does not apply.
Other courts agree. They treat contributory negligence’s
inapplicability to intentional torts as the reason a plaintiff’s
negligence cannot reduce intentional-tort damages. See, e.g.,
McLain v. Training & Dev. Corp., 572 A.2d 494, 497 (Me. 1990)
(quoting Prosser & Keeton on the Law of Torts § 67, at 477–78
(5th ed. 1984)) (“[C]ontributory negligence never has been
considered a good defense to an intentional tort such as a
battery, and it would likewise appear contrary to sound policy
to reduce a plaintiff’s damages under comparative fault for his
‘negligence’ in encountering the defendant’s deliberately
inflicted harm.”); Heiner v. Kmart Corp., 100 Cal. Rptr. 2d 854,
865 (Cal. Ct. App. 2000) (same); R.J. Reynolds Tobacco Co. v.
Gerald, 76 V.I. 656, 731 n.47 (V.I. 2022) (collecting cases).
American Law Reports explains why:
The clearly prevailing view is that comparative negligence
principles are not applicable to intentional torts . . . .
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The rationale for this view rests on the general assumption
that comparative negligence evolved to provide compensation
to tort victims, who were barred by the harsh doctrine of
contributory negligence, and should not be used to diminish
recovery where the common law had previously treated an
intentional tort victim’s contributory fault as irrelevant
to damage recovery where an intentional tort was inflicted.
A.L. Schwartz, Applicability of Comparative Negligence
Principles to Intentional Torts, 18 A.L.R. 5th 525, § 2[a]
(1994).
Cummins’ rejection of contributory negligence for
intentional torts bars comparative negligence as well.
Comparative negligence’s original purpose reinforces this
conclusion. It “was designed ‘to mitigate the unjust hardships
that the contributory negligence doctrine imposes on accident
victims.’” Field v. Boyer Co., L.C., 952 P.2d 1078, 1084 (Utah
1998) (Stewart, J., concurring and dissenting) (quoting 4 Fowler
V. Harper et al., The Law of Torts § 22.5, at 295 (2d ed.
1986)). It aimed “to provide compensation to tort victims,” not
to reduce recovery. Schwartz, supra § 2[a].
Hawaiʻi’s own statute reflects this understanding. The
legislature abrogated contributory negligence because it deemed
the doctrine “unfair.” See Rapoza v. Parnell, 83 Hawaiʻi 78, 82,
924 P.2d 572, 576 (App. 1996). And it intended HRS § 663-31 to
“allow” negligent plaintiffs “to be recompensed” where they
previously could not. Hawaiian Scenic Tours, Ltd., 64 Haw. at
405, 642 P.2d at 933.
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These legislative aims do not license damages reductions
where the plaintiff’s negligence did not previously limit
recovery.
Cummins itself was a fraud case. Philip Morris’
intentional torts involved fraudulent conduct. It was “well
settled” in 1917 that “a party guilty of fraudulent conduct
shall not be allowed to cry ‘negligence,’ as against his own
deliberate fraud.” Cummins, 24 Haw. at 122. It still is. The
rule reaches reductions, not just outright prohibitions.
Here, the jury found Philip Morris liable for negligence,
strict products liability, and conspiracy to commit fraud. It
found Ricapor-Hall sustained $6 million in general damages. But
the Special Verdict form did not ask the jury to assign damages
to each claim. In these circumstances, the circuit court erred
in reducing Ricapor-Hall’s damages based on her negligence.
When a defendant commits an intentional tort, the
plaintiff’s negligence does not reduce damages. This tracks
“the traditional common law rule that contributory negligence
does not bar or result in apportionment of damages in an
intentional tort claim.” Gerald, 76 V.I. at 733.
The rule is not confined to fraud. Cummins arose from
fraud, but its principle pivots on intent. 24 Haw. at 122.
Intent binds every intentional tort. See Restatement (Third) of
Torts: Apportionment of Liab. § 12 cmt. b (Am. L. Inst. 2000).
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Fraud, battery, conversion, intentional infliction of emotional
distress – the rule reaches them all.
This holding overrules Ozaki I. See Ozaki v. Ass’n of
Apartment Owners of Discovery Bay (Ozaki I), 87 Hawaiʻi 273, 954
P.2d 652 (App. 1998). That case was a domestic violence murder.
A tenant was strangled by her estranged boyfriend in her own
apartment. The jury assigned her five percent of the fault.
Ozaki I let that five percent reduce her estate’s recovery from
her killer. Id. at 282-83, 954 P.2d at 661-62. That is what
Cummins forbids.
3. Hawaiʻi’s Strict Products Liability Cases Are
Distinguishable
This court’s embrace of pure comparative negligence
elsewhere does not justify adopting it here.
Kaneko, Armstrong, and Hao applied pure comparative
negligence to strict products liability claims. See Kaneko v.
Hilo Coast Processing, 65 Haw. 447, 463, 654 P.2d 343, 353
(1982); Armstrong v. Cione, 69 Haw. 176, 180-83, 738 P.2d 79,
82-83 (1987); Hao, 69 Haw. at 236, 738 P.2d at 418-19 (together,
Kaneko line). Thus, a plaintiff’s negligence “reduces but does
not defeat” their strict products liability claim, even when the
plaintiff’s fault is greater than that of the defendants. Hao,
69 Haw. at 236, 738 P.2d at 419.
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Philip Morris argues that applying pure comparative
negligence to intentional tort claims “flows naturally” from the
Kaneko line.
It doesn’t.
That caselaw is specific to strict products liability and
does not extend to intentional torts. The policy, doctrine, and
equities all cut the other way.
a. Policy Aims
The Kaneko line’s underlying policy interests do not
translate to the intentional-tort context.
When this court applied comparative negligence to strict
products liability claims, it did not consider whether the rule
extends to intentional torts, or how deliberate conduct alters
the calculation. Rather, the court “fashion[ed] a rule of
comparative negligence to suit [its] original purposes in
adopting strict products liability.” Armstrong, 69 Haw. at 180,
738 P.2d at 82. Those purposes include protecting consumers,
holding manufacturers and distributors accountable for placing
dangerous goods in the market, and creating economic incentives
for safer products. Id. at 182, 738 P.2d at 82-83.
Though vital to strict products liability, these aims are
irrelevant to intentional torts. Cf. Ozaki II, 87 Hawaiʻi at
271, 954 P.2d at 650 (recognizing that “[t]he public policy
underlying the decision” to apply pure comparative negligence to
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strict products liability claims “simply has no bearing” on a
negligence claim).
b. Doctrinal Justifications
Two doctrinal aspects of strict products liability justify
applying comparative negligence there. Neither justifies it
here.
First, strict products liability imposes liability
regardless of fault. That calls for guardrails. See Kaneko, 65
Haw. at 463, 654 P.2d at 353.
Hawaiʻi imposes strict liability on manufacturers of
dangerous, defective products regardless of fault. The point is
to shift “the burden of accidental injuries caused by defective
chattels” to those best positioned to prevent them. Id. at 452,
654 P.2d at 347; Armstrong, 69 Haw. at 182, 738 P.2d at 82
(quoting Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470
P.2d 240, 243 (1970)).
But strict products liability “was never intended to be
‘absolute liability.’” Kaneko, 65 Haw. at 463, 654 P.2d at 353
(quoting Daly v. Gen. Motors Corp., 575 P.2d 1162, 1166 (Cal.
1978)).
Manufacturers are not “insurers of the safety of the
product’s user.” Id. Accounting for a plaintiff’s negligence
keeps the doctrine tethered to “accidental injuries” and
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“defective chattels.” Armstrong, 69 Haw. at 182, 738 P.2d at
82.
Intentional torts need no such guardrails. They pose no
risk of drifting into absolute liability because every
intentional tort has intent built into its elements. See
Restatement (Third) of Torts: Apportionment of Liab. § 12 cmt. b
(“intent is an element in all intentional torts”). Intent is
the limit.
Second, a plaintiff’s assumption of risk historically
barred recovery in strict products liability, even though a
plaintiff’s negligence would only reduce damages in a negligence
action. See Kaneko, 65 Haw. at 463, 654 P.2d at 353-54.
Kaneko called this an “anomaly” that rewarded skillful
pleading and produced “an imbalance” between the two theories.
Id. Comparative negligence cured it, replacing the all-ornothing bar with proportional reduction. Id.
No such anomaly exists for intentional torts. A
plaintiff’s negligence does not bar recovery for an intentional
tort. See Restatement (Second) of Torts § 481 (1965).
There is no all-or-nothing bar to soften, so the
justification for importing comparative negligence falls away.
See, e.g., Flood v. Southland Corp., 616 N.E.2d 1068, 1071-72
(Mass. 1993); Burke v. 12 Rothschild’s Liquor Mart, Inc., 593
N.E.2d 522, 531 (Ill. 1992).
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Both doctrinal features support comparative negligence for
strict liability. Neither reaches intentional torts.
c. Fairness and Equity
Fairness and equity concerns widen the gap. In strict
products liability actions, fairness supports comparative
negligence. In intentional torts it does the opposite.
Kaneko rejected the objection that strict liability and
comparative negligence “are incapable of being reconciled”
because strict liability is “not based upon negligence.” 65
Haw. at 460, 654 P.2d at 351.
The court acknowledged the “conceptual and semantic
problems,” but held the doctrines “not incompatible.” Id. at
460-61, 654 P.2d at 352. Because strict products liability “was
premised on equity and fairness,” reducing a negligent
plaintiff’s recovery “accomplish[es] a fairer and more equitable
result.” Id. at 461, 654 P.2d at 352.
“[F]airness and equity are more important than semantic
consistency.” Id. So it is with intentional torts. But here,
those values compel the opposite outcome. They forbid reducing
damages.
Intentional tortfeasors are the worst kind. They intend to
cause injury. Aloha Petroleum, Ltd., 155 Hawaiʻi at 120, 557
P.3d at 849.
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The law treats them differently than the merely negligent.
See Cummins, 24 Haw. 116; see also Restatement (Third) of
Torts: Apportionment of Liability § 1 (2000), Reporters’ Note,
cmt. b (“When a defendant intentionally invades a plaintiff’s
rights, it makes sense to have different defenses, different
rules about damages, and so forth, than when a defendant is
merely negligent or, in strict liability, is innocent.”)
(emphasis added).
Most courts do not apportion intentional-tort damages based
on a plaintiff’s negligence. Id. § 1, cmt. c.
The usual reason is conceptual. Intentional misconduct and
negligence are “not comparable.” See, e.g., Florenzano v.
Olson, 387 N.W.2d 168, 176 n.7 (Minn. 1986) (“The difference
between the victim’s actions and the defendant’s action is not
one of degree, but of kind, and they are therefore not
comparable.”).
The conceptual argument is persuasive. Intentional conduct
involves a deliberate choice to act wrongfully. Negligence, by
contrast, is a failure to exercise reasonable care. The two
differ in kind. Comparisons are fraught.
But policy drives the rule too. See Field, 952 P.2d at
1083 (Stewart, J., concurring and dissenting) (“Intentional
wrongdoing is so much graver a wrong than negligence . . . that
the . . . need both to deter and to punish it outweighs any
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social benefits that are thought to accrue from the rule of
contributory negligence.”).
The fairness stakes are high. Using a plaintiff’s
negligence to reduce damages for intentional torts produces
absurd results. Id.
Consider a con artist who defrauds an elderly investor.
She could shave damages by arguing that the victim negligently
failed to check her references. Or a thief who takes a car left
running outside a coffee shop after the owner stepped inside for
a minute. He could reduce exposure by arguing that the owner
should not have left the keys in the ignition. These outcomes
are intolerable under Hawaiʻi law.
The incentives are also twisted. Reducing intentional-tort
damages by a plaintiff’s negligence entices defendants to target
careless victims. They can cut the price of their misconduct by
showing their mark acted without due care.
We decline to create such a reward. Cf. Florenzano, 387
N.W.2d at 176 n.7 (“We . . . consider it bad policy to permit an
intentional tortfeasor the defense of comparative negligence
merely because he or she chooses a gullible or foolish
victim.”).
Comparative negligence would not “accomplish a fairer and
more equitable result” in intentional-tort actions. Kaneko, 65
Haw. at 461, 654 P.2d at 352. Far from it. Reducing
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intentional-tort damages by the victim’s negligence “turns both
morality and the law on their heads.” Field, 952 P.2d at 1083
(Stewart, J., concurring and dissenting).
4. Other Courts Agree
Ricapor-Hall’s negligence does not reduce her damages for
intentional torts. Other jurisdictions are divided. Gerald and
Schoeff agree with us. Blazovic does not. See Gerald, 76 V.I.
656; Schoeff v. R.J. Reynolds Tobacco Co., 232 So.3d 294 (Fla.
2017); Blazovic v. Andrich, 590 A.2d 222 (N.J. 1991).
In Gerald, the Virgin Islands Supreme Court held as we do:
a plaintiff’s comparative negligence cannot reduce intentionaltort damages. 76 V.I. at 733-34. The case is a close analogue.
Like Ricapor-Hall, Gerald prevailed on both negligence and
intentional-tort claims, and was assigned a percentage of fault.
Id. at 730 n.45-46.
The defendant argued the trial court should have reduced
damages by that fault. Id. at 730.
The Virgin Islands Supreme Court disagreed. Id. at 734.
Like Hawaiʻi, the Virgin Islands had enacted a comparative
negligence statute to abolish the contributory-negligence bar.
Id. at 730. And like HRS § 663-31, that statute “only applies
to actions based on ‘negligence,’” so “it cannot be read as
applying to intentional conduct.” Id. at 732.
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The legislature “could have chosen to apply comparative
fault to intentional torts as well, but it chose not to.” Id.
at 733.
Because legislatures are presumed to know the common law
and statutes in derogation of it are strictly construed, Gerald
read the comparative negligence statute narrowly. Id. at 733.
It “only overruled” the contributory-negligence bar. Id. It
“did not overrule the traditional common law rule that
contributory negligence does not bar or result in apportionment
of damages in an intentional tort claim.” Id.
Gerald’s analysis tracks ours.
In Hawaiʻi, abrogation of the common law is disfavored. HRS
§ 1-1 makes common law principles applicable “except as
otherwise expressly provided by the Constitution or laws of the
United States, or by the laws of the State.” HRS § 1-1 (2009).
And this court is “unwilling[] to impliedly reject its
principles[] . . . absent a finding of ‘express [legislative]
intent.’” Gold Coast Neighborhood Ass’n v. State, 140 Hawaiʻi
437, 452, 403 P.3d 214, 229 (2017).
The Hawaiʻi Legislature imposed a modified comparative
negligence scheme on negligence actions. See HRS § 663-31;
Ozaki II, 87 Hawaiʻi at 270, 954 P.2d at 649. But it did not
alter the common law’s treatment of intentional torts.
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Like the Virgin Islands, Hawaiʻi “could have chosen to apply
comparative fault to intentional torts.” Gerald, 76 V.I. at
733. It did not. And its silence does not abrogate the common
law. The intentional-tort rule survives.
Gerald does not stand alone. The Florida Supreme Court
reached the same conclusion in Schoeff, holding it error to
reduce a smoker’s intentional-tort damages by their comparative
fault. 232 So.3d at 305.
Florida’s comparative fault statute, like HRS § 663-31,
reaches only negligence. Id. at 301. And the court applied the
same canon we do: a statute is read narrowly against displacing
the common law, under which “intentional torts are not reduced
by comparative fault.” Id. at 304; see Burns Int’l Sec. Servs.,
Inc. v. Dep’t of Transp., 66 Haw. 607, 611, 671 P.2d 446, 449
(1983).
True, Florida’s exemption is express and HRS § 663-31’s is
not. But we have read HRS § 663-31’s plain language to apply
only to negligence claims. Ozaki II, 87 Hawaiʻi at 270, 954 P.2d
at 649 (where negligence was one of several theories against the
same defendant, HRS § 663-31 “applied only to the plaintiffs’
contributory negligence and did not operate as a complete bar to
recovery with respect to other asserted theories of liability”).
The limited reach is clear either way. Where the legislature
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left the common law intact, we follow the common law. See Burns
Int’l, 66 Haw. at 611, 671 P.2d at 449.
Blazovic went the other way. It applied comparative fault
to intentional torts. Blazovic, 590 A.2d at 231. But it turned
on a materially different statute, and its facts do not match
ours. These differences make Blazovic a poor fit.
Blazovic involved a late-night brawl outside a bar. Id. at
224. The plaintiff sued the bar for negligence and four men for
assault and battery. Id. The jury found the bar and the
plaintiff negligent and the four men liable for intentional
assault. But the trial court let the jury apportion fault only
between the two negligent parties. Id. The New Jersey Supreme
Court reversed. Fault must be apportioned to the intentional
tortfeasors, it held, and a plaintiff’s comparative fault
reduces recovery. Id. at 231, 233-34.
Two features make Blazovic unpersuasive here. First, New
Jersey’s statute is “not limited to negligence actions” and “was
intended to cover fault in a broader sense rather than in the
narrow negligence concept.” Id. at 226-27. HRS § 663-31 is the
opposite. It is confined to actions “for negligence.” See
Ozaki II, 87 Hawaiʻi at 269-70, 954 P.2d at 648-49. Blazovic’s
result followed its broad statute; ours follows our narrow one.
Second, Blazovic’s concern was apportioning fault “in a multi61
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party case.” 590 A.2d at 227. This is not one. Philip Morris
was the only defendant at trial.
Blazovic is therefore not compelling. Gerald and Schoeff
are the better analogues.
G. Philip Morris’ New Trial Arguments Fail
The circuit court erred in reducing Ricapor-Hall’s damages.
Philip Morris argues the remedy should be a new trial on
damages. It speculates that the jury might have awarded less if
the circuit court had not instructed it on comparative
negligence. But the court’s other instructions guarded against
that result. The court told the jury to “determine the total
amount of [Ricapor-Hall’s] damages, without regard to whether
[Ricapor-Hall’s] own negligence was also a legal cause of her
injuries.” (Emphasis added.) Again, we presume the jury
followed that instruction. Myers, 76 Hawaiʻi at 165, 871 P.2d at
1235.
Philip Morris’ second argument fares no better. It says a
new trial is warranted because the circuit court declined its
proposed instruction on mitigation of damages. It isn’t.
The duty to mitigate is a doctrine of “avoidable
consequences.” Montalvo, 77 Hawaiʻi at 287, 884 P.2d at 350. It
is not about preventing the injury. It concerns the plaintiff’s
obligation to make reasonable efforts to “alleviate the effects
of the injury.” Mitigation of Damages Doctrine, Black’s Law
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Dictionary 1198 (12th ed. 2024); see Gibo v. City & Cnty. of
Honolulu, 51 Haw. 299, 305, 459 P.2d 198, 202 (1969) (plaintiff
has “duty to use reasonable care to effect a cure and to avoid
aggravation of injuries”). A plaintiff must be “aware of” the
injury before any duty to mitigate arises. Restatement (Third)
of Torts: Remedies § 8 (Am. L. Inst., Tentative Draft No. 1,
2022).
Philip Morris misses this temporal distinction.
It argued below that Ricapor-Hall’s smoking “before 2019”
“justified the giving of the mitigation instruction.” It
didn’t. Ricapor-Hall only sought damages for her lung cancer,
and doctors did not detect that cancer until 2019. Her duty to
mitigate could not begin until she learned of her condition.
To receive the instruction, Philip Morris had to show that
Ricapor-Hall failed to take reasonable steps to mitigate after
her diagnosis. See Malani v. Clapp, 56 Haw. 507, 517, 542 P.2d
1265, 1271 (1975). It made no such showing.
A new trial is not warranted under either ground.
IV.
We vacate the portion of the final judgment reducing
Ricapor-Hall’s damages by forty-six percent. We remand for
entry of an amended judgment awarding Ricapor-Hall the full
$6,000,000 in general damages, subject to whatever settlement
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credits the circuit court determines are appropriate. In all
other respects, we affirm.
Scott A. Chesin and /s/ Vladimir P. Devens David M. Louie
(Nicholas R. Monlux, Ryan D. /s/ Sabrina S. McKenna Louie, Annie Y.S. Chuang,
Nalani L. Crisologo, and /s/ Todd W. Eddins Kenneth J. Reilly on the briefs)
for appellant/cross-appellee /s/ Lisa M. Ginoza
David J. Sales and /s/ Jordon J. Kimura Alejandro Alvarez
(Wayne Parsons, Sergio Rufo,
William F. Brown, and
Nicholas Reyes, on the briefs)
for appellee/cross-appellant
64