FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-AUG-2026
08:21 AM
Dkt. 106 MO
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---oOo---LESLIE CABRAL, individually
and as Personal Representative of
the Estate of LEONARD CABRAL, JR.;
LEONARD CABRAL, SR.; and NICHOLAS CABRAL,
Plaintiffs-Appellants,
v.
PALI MOMI MEDICAL CENTER, Defendant-Appellee
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)
August 18, 2026
NAKASONE, CHIEF JUDGE, HIRAOKA AND WADSWORTH, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
Leonard Cabral, Junior died five days after being
released from Pali Momi Medical Center. His mother Leslie
Cabral, for herself and as personal representative of his estate,
his father Leonard Cabral, Senior, and his brother Nicholas
Cabral sued Pali Momi and others for medical malpractice. A jury
found that Pali Momi was not negligent. Leslie, Senior, and
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Nicholas appeal from the Final Judgment for Pali Momi entered by
the Circuit Court of the First Circuit.1
We hold: (1) the trial court erred by granting summary
judgment for Pali Momi on its potential vicarious liability for
alleged professional negligence by a non-employee doctor who
provided health care, under a contract with Pali Momi, to Junior
while he was hospitalized; (2) the trial court did not err by
granting summary judgment for Pali Momi on the Cabrals' claim for
failing to obtain Junior's informed consent to treatment or to a
procedure; and (3) the trial court did not err by denying the
Cabrals' motion for new trial based on alleged juror misconduct.
We affirm the Final Judgment in part, vacate in part, and remand
for further proceedings.
I. BACKGROUND
On November 4, 2019, 31-year old Junior went to Pali
Momi's emergency room, complaining of chest pain and shortness of
breath. He signed Pali Momi's Consent for Treatment. He was
examined and admitted to the hospital. He was released the next
day, with instructions to follow up for further testing. He died
on November 10, 2019.
The Cabrals sued Pali Momi. Their amended complaint
alleged counts for medical negligence, vicarious liability, and
negligent infliction of emotional distress.
The trial court granted Pali Momi partial summary
judgment on the Cabrals' claims for vicarious liability and
1
The Honorable Gary W.B. Chang presided.
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failure to obtain informed consent. Their claims for medical
negligence and negligent infliction of emotional distress were
tried to a jury.2
The jury was selected on Friday, January 12, 2024.
Neither Leslie nor Senior testified during the Cabrals' case-inchief. After the Cabrals rested, Pali Momi moved for judgment as
a matter of law on Leslie's and Senior's individual claims. The
trial court granted the motion, ruling that "a reasonable jury
would not have a legally sufficient evidentiary basis to find
for" Leslie and Senior. The court denied a motion for
reconsideration, a motion to call Leslie and Senior as rebuttal
witnesses, and a motion to reopen the Cabrals' case.
The jury returned a verdict on Friday, January 19,
2024. It found Pali Momi was not negligent.
On January 29, 2024, the Cabrals moved to set aside the
verdict. They claimed misconduct by the jury foreperson. The
trial court entered findings of fact, conclusions of law, and an
order denying the motion.
On March 15, 2024, the Cabrals moved for a new trial
based on manifest weight of the evidence. The motion was denied.
The Final Judgment was entered on May 24, 2024. This appeal
followed.
II. POINTS OF ERROR
The Cabrals state six points of error. They contend
the trial court erred when it: (1) granted Pali Momi's motion for
2
Consistent with the partial summary judgment on vicarious liability, the jury was instructed: "Defendant is not liable for the acts or omissions of doctors who were not its employees."
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partial summary judgment; (2) granted judgment as a matter of law
for Pali Momi against Leslie and Senior; (3) denied their motion
to reconsider the judgment as a matter of law against Leslie and
Senior; (4) denied their request to reopen their case-in-chief;
(5) denied their motion for a new trial based on juror
misconduct; and (6) denied their motion for a new trial because
the jury verdict was against the manifest weight of the evidence.
III. STANDARDS OF REVIEW
A. Motion for Summary Judgment
We review a grant of summary judgment de novo. Ralston
v. Yim, 129 Hawai#i 46, 55, 292 P.3d 1276, 1285 (2013). Summary
judgment is appropriate if the evidence shows there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Id.
When (as here) the summary judgment movant does not
bear the burden of proof at trial, it has the burden to show
(1) there is no genuine issue of material fact on the essential
elements of the claim addressed by the motion, and (2) the
uncontroverted facts entitle it to judgment as a matter of law.
Id. at 56, 292 P.3d at 1286.
Once the movant satisfies its burden, the non-moving
party must "demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial." Id.
at 56-57, 292 P.3d at 1286-87. The evidence must be viewed in
the light most favorable to the non-moving party. Id. at 56, 292
P.3d at 1286.
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B. Juror Misconduct
We review a trial court's inquiry into potential juror
misconduct for abuse of discretion. State v. Grewer, 157 Hawai#i
104, 110, 575 P.3d 737, 743 (2025). "The trial court abuses its discretion when it clearly exceeds the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant." Id.
IV. DISCUSSION
We address Pali Momi's motion for partial summary
judgment first, because it affected the scope of the trial.
After the discovery cutoff, Pali Momi moved for partial summary
judgment on the Cabrals' claims for (a) vicarious liability for
acts or omissions of non-employees and (b) failure to obtain
Junior's informed consent to treatment or to a procedure. The
trial court granted the motion.
A. Pali Momi was not entitled to summary
judgment on its potential vicarious liability
for alleged professional negligence by its
contracted hospitalist or house physician.
Under the respondeat superior theory of vicarious
liability, an employer can be liable for its employee's
negligence if the employee's act or omission happened in the
scope of employment. Wong-Leong v. Hawaiian Indep. Refinery,
Inc., 76 Hawai#i 433, 438, 879 P.2d 538, 543 (1994).
Attached to Pali Momi's motion for summary judgment was
a report by the Cabrals' expert witness, Ahvie Herskowitz, M.D.
He opined that Shayne Castanera, M.D., John Kao, M.D., and Nurse
Practitioner Kate Deans breached standards of care. Pali Momi
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had stipulated to be bound by Dr. Kao's and N.P. Deans's acts or
omissions because they were Pali Momi's employees. The issue
presented by the motion was whether Pali Momi could be
vicariously liable for Dr. Castanera's alleged professional
negligence.
Pali Momi supported its motion for summary judgment
with its risk manager's declaration stating that Dr. Castanera
was not a Pali Momi employee. The risk manager authenticated
portions of Pali Momi's Agreement for Hospitalist and House
Physician Services with Hawaii Hospital Physicians, Inc. (HHP)
which, although not mentioning Dr. Castanera by name, was
apparently the contract under which he provided "in-house
hospitalist and house physician coverage" at Pali Momi Medical
Center.3
Pali Momi's risk manager also authenticated the Consent
for Treatment that Junior signed on November 4, 2019. It stated:
I understand that I will receive a bill from this medical
facility. The physician(s) may also bill me separately for
their services provided to me while at this facility. I
further understand not all physicians are employees of this
medical facility.
(emphasis added).
Pali Momi thus sustained its burden as summary judgment
movant under the law set forth in Wong-Leong. Ralston, 129
Hawai#i at 56, 292 P.3d at 1286. The burden then shifted to the
Cabrals to "demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial." Id.
3
Pali Momi's contract with HHP, which was apparently subject to a protective order, was redacted, and only three pages of the 12-page contract were attached to the risk manager's declaration.
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at 56-57, 292 P.3d at 1286-87. Or to argue an alternative legal
basis for imposing vicarious liability, which is what they did.
Dr. Herskowitz opined that: Junior had a heart attack
and coronary artery spasm while hospitalized at Pali Momi;
Dr. Castanera misdiagnosed Junior with pericarditis or
myocarditis or cardiomyopathy; and the misdiagnosis and failure
to treat Junior for his heart attack and coronary artery spasm
"directly led to his death on November 10th, 2019." According to Dr. Herskowitz:
If [Junior] was accurately diagnosed and treated within the
standard of care, he would have been told that he had
suffered a heart attack, and educated on how best to avoid a
recurrence. He would have undergone risk stratification
during hospitalization and sent home on specific heart
medications. The medical literature clearly shows that
coronary artery spasm is a treatable disorder that responds
well to calcium channel blockers, nitroglycerin and antiplatelet therapy. The goal of treating coronary artery
spasm is to prevent the spasm, relieve the chest pain, and
prevent new heart injury.
The Cabrals argued the trial court should adopt the
ruling in Bynum v. Magno, 125 F. Supp. 2d 1249 (D. Haw. 2000).
The issue in Bynum was: "under what circumstances may a hospital
be liable for the allegedly negligent acts of its independent
contractor doctors?" Id. at 1265. After noting that "Hawaii has
not squarely addressed this question," the federal district court
predicted that Hawai#i would recognize vicarious liability for
hospitals under the theory of apparent authority if a plaintiff
"establish[es] that (1) he/she had a reasonable belief that [the]
physician was [an] agent/employee of the hospital, (2) the belief
was generated by some affirmative act of the hospital or
physician, and (3) the patient justifiably relied on the
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representation of authority." Id. at 1265-66; see also Raymond
v. Wilcox Mem'l Hosp., 403 F. Supp. 3d 868, 884-85 (D. Haw.
2019); cf. Bartholomew v. Burger King Corp., 15 F. Supp. 3d 1043,
1048–49 (D. Haw. 2014) (applying vicarious liability based on
apparent agency, citing Restatement (Second) of Agency § 267
(1958) and Cho Mark Oriental Food, Ltd. v. K & K Int'l, 73 Haw.
509, 516, 836 P.2d 1057, 1062 (1992)).
Under Hawai#i law, vicarious liability is not limited
to the employer-employee context. One may be vicariously liable
in tort for acts or omissions of another under agency theories of
actual authority or implied actual authority. State v. Hoshijo
ex rel. White, 102 Hawai#i 307, 318-19, 76 P.3d 550, 561-62
(2003).
Hoshijo addressed whether the University of Hawai#i
could be held vicariously liable in tort for misconduct by a nonemployee agent — the men's basketball team's student manager.
The supreme court noted that an agency relationship can be
created through actual or implied actual authority, 102 Hawai#i
at 318, 76 P.3d at 561, but agency status alone does not make a
principle "ipso facto liable" for an agent's actions, id. at 319,
76 P.3d at 562. Generally, "a principal can only be held
vicariously liable for the actions of an agent under the theory
of respondeat superior." Id. "Vicarious liability under the
respondeat superior doctrine ordinarily requires some kind of
employment relationship or other consensual arrangement under
which one person agrees to act under another's control." Id.
(underscoring added).
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Pali Momi's contract with HHP provided:
HHP shall be an "independent contractor" with the authority
and responsibility to control and direct the performance and
details of the work and services required under this
Agreement . . . . All persons hired or used by HHP shall be
HHP's employees and agents and HHP shall ensure that such
persons are qualified to engage in the activities and
services in which they participate. HHP shall be
responsible for the accuracy, completeness and adequacy of
any and all work and services performed by HHP's employees
and agents and shall ensure that all applicable licensing
and operating requirements of federal, state, county and
municipal governments, and all applicable accreditation and
other standards of quality generally accepted in the field
of HHP's activities, are complied with and satisfactorily
met.
The contract required HHP, not Pali Momi, to control
Dr. Castanera's medical practice. The Cabrals did not proffer
evidence showing that HHP or Dr. Castanera agreed to let Pali
Momi control Dr. Castanera's exercise of professional judgment or
his diagnosis or treatment of Junior. Under Hoshijo, Pali Momi
could not be vicariously liable for Dr. Castanera's negligence
under theories of actual or implied actual authority.
The supreme court in Hoshijo specifically declined to
consider vicarious liability under the apparent authority theory
of agency. 102 Hawai#i at 318, 76 P.3d at 561. Under Hawai#i law:
Apparent authority can occur under the following
circumstances:
(1) The principal has manifested his consent to the
exercise of such authority or has knowingly permitted
the agent to assume the exercise of such authority;
(2) the third person knew of the principal's actions and,
acting in good faith, had reason to believe, and did
actually believe, that the agent possessed such
authority; and
(3) the third person, relying on such appearance of
authority, has changed his position and will be
injured or suffer loss if the act done or transaction
executed by the agent does not bind the principal.
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Cho Mark, 73 Haw. at 517, 836 P.2d at 1062 (cleaned up)
(formatting altered).
Apparent authority thus
arises when the principal does something or permits the
agent to do something which reasonably leads another to
believe that the agent had the authority he was purported to
have. The critical focus is not on the principal and
agent's intention to enter into an agency relationship, but
on whether a third party relies on the principal's conduct
based on a reasonable belief in the existence of such a
relationship.
State Farm Fire & Cas. Co. v. Pac. Rent-All, Inc., 90 Hawai#i
315, 326–27, 978 P.2d 753, 764–65 (1999) (cleaned up) (quoting
Cho Mark, 73 Haw. at 516-17, 836 P.2d at 1062).
But Cho Mark and Pacific Rent-All were contract cases.
Cho Mark involved a commercial real property lease. Pacific
Rent-All involved tort subrogation claims, but the apparent
authority issue concerned the scope of a settlement agreement,
which is a contract. The Cabrals' medical malpractice claim
against Pali Momi sounds in tort. Troyer v. Adams, 102 Hawai#i
399, 411–12, 77 P.3d 83, 95–96 (2003); HRS § 671-1 (2016)
(defining "medical tort"). The Hawai#i Supreme Court has not
decided whether vicarious tort liability can be imposed under the
apparent authority theory of agency, a question left open by
Hoshijo, 102 Hawai#i at 318, 76 P.3d at 561.
Other jurisdictions have considered the issue. In
Cefaratti v. Aranow, 141 A.3d 752 (Conn. 2016), Aranow performed
gastric bypass surgery on the plaintiff at Middlesex Hospital.
He left a surgical sponge in her. She sued Aranow and Middlesex.
Middlesex moved for summary judgment because Aranow was not its
employee. The trial court granted summary judgment. The
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appellate court affirmed, citing its own precedent that "the
doctrine of apparent authority cannot be used to hold a principal
liable for the tortious actions of its alleged agent." Cefaratti
v. Aranow, 105 A.3d 265, 293 (Conn. App. Ct. 2014), rev'd, 141
A.3d 752 (Conn. 2016). The Supreme Court of Connecticut granted
the plaintiff's petition for certification to decide whether to
"recognize the doctrine of apparent agency in tort actions[.]"
Cefaratti, 141 A.3d at 754.
The Connecticut supreme court noted that "[t]he rules
of vicarious liability respond to a specific need in the law of
torts: how to fully compensate an injury caused by the act of a
single tortfeasor. Upon a showing of agency, vicarious liability
increases the likelihood that an injury will be compensated, by
providing two funds from which a plaintiff may recover. If the
ultimately responsible agent is unavailable or lacks the ability
to pay, the innocent victim has recourse against the principal."
Id. at 761 (cleaned up). It held, "[b]ecause a hospital may be
held vicariously liable for the medical malpractice of its agents
and employees under the doctrine of respondeat superior, it may
also be held vicariously liable under the doctrine of apparent
agency." Id. at 763.
The court explained, "when an entity has held itself
out as providing certain services to the public — and, indeed,
may have made great efforts to persuade members of the public to
avail themselves of those services, and benefited from doing so —
and has selected the specific individual who will provide those
services to particular members of the public, we do not believe
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that it is unfair to hold that entity liable for the individual's
negligence." Id. at 769–70 (footnote omitted).
The Connecticut court also noted, in response to the
argument its ruling would "transmute hospitals into excess
insurers of those physicians who are neither employees nor actual
agents of the hospital[,]" that "a principal that is held
vicariously liable for another's negligence under the doctrine of
apparent agency may be able to seek indemnification from the
tortfeasor[.]" Id. at 763 n.14. Here, Pali Momi submitted only
three pages of its 12-page contract with HHP; we don't know
whether the contract contained an indemnity agreement, a
requirement that HHP add Pali Momi as an additional insured to
HHP's professional liability and excess liability insurance
policies, or other risk-transfer provisions. In addition to
common law joint tortfeasor indemnification, those are ways a
hospital can protect itself against vicarious liability for
medical torts committed by non-employee doctors whom the hospital
allows to treat its patients.
Other jurisdictions have also applied vicarious tort
liability under the apparent authority theory of agency to a
hospital or other health care provider. See, e.g., Wilson v.
Anonymous Defendant 1, 183 N.E.3d 289 (Ind. 2022) (applying
Restatement (Second) of Agency § 267 (1958)); Arrendale v. Am.
Imaging & MRI, LLC, 183 N.E.3d 1064 (Ind. 2022) (applying
Restatement (Second) of Torts § 429 (1965)); Wilkins v.
Marshalltown Med. & Surgical Ctr., 758 N.W.2d 232 (Iowa 2008)
(applying Restatement (Second) of Agency § 267 (1958) and
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Restatement (Second) of Torts § 429 (1965)); Popovich v. Allina
Health Sys., 946 N.W.2d 885 (Minn. 2020); Eads v. Borman, 277
P.3d 503 (Or. 2012).
We hold that a hospital can be vicariously liable for
professional negligence by an independent contractor physician
under the apparent authority theory of agency if the plaintiff
proves:
(1) the plaintiff reasonably believed that the hospital
authorized the physician to treat them;
(2) the hospital did something or allowed the physician to
do something that led to this belief; and
(3) the plaintiff relied on the physician's apparent
authority.
Cf. Cho Mark, 73 Haw. at 517, 836 P.2d at 1062.
Here, viewed in the light most favorable to the
Cabrals, the evidence showed that Pali Momi contracted with HHP
to have Dr. Castanera treat Pali Momi's patients. Pali Momi
required that Junior sign its Consent for Treatment form, which
stated:
I wish to receive medical care and treatment at Pali Momi
Medical Center. Accordingly, I consent to the procedures,
which may be performed during this hospitalization or clinic
visit, including emergency treatment. I authorize and
consent to any of the following: X-ray examination,
laboratory procedure, other diagnostic procedures, medical
or surgical treatment, or other clinical and hospital
services as directed by my physician(s) or my physician's(s)
assistants, which my physician(s) believes are advisable to
evaluate or treat me, and to other services rendered under
the general and special instructions of my physician(s).
A reasonable jury could find that Pali Momi's use of
the Consent for Treatment led Junior to believe the doctors
treating him in Pali Momi's hospital were authorized by Pali Momi
to do so, even if they may not all be Pali Momi employees.
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The record does not show that Dr. Castanera was
Junior's personal physician. A reasonable jury could thus find
that Junior's signing of Pali Momi's Consent for Treatment showed
he reasonably relied on Pali Momi allowing Dr. Castanera to
provide him with medical care.
On this record, the trial court erred by granting Pali
Momi's motion for partial summary judgment on its potential
vicarious liability for Dr. Castanera's alleged professional
negligence.
B. Pali Momi was entitled to summary judgment on
the Cabrals' claim for failure to obtain
Junior's informed consent to a treatment or
procedure.
The other issue presented by Pali Momi's motion was
whether Pali Momi failed to obtain Junior's informed consent to
treatment or to a procedure. Under the common law doctrine of
informed consent, physicians had a duty to disclose to patients
"all relevant information concerning a proposed treatment,
including the collateral hazards attendant thereto, so that the
patient's consent to the treatment would be an intelligent one
based on complete information." Ngo v. Queen's Med. Ctr., 136
Hawai#i 54, 63, 358 P.3d 26, 35 (2015).
The common-law doctrine was supplanted by Hawaii
Revised Statutes (HRS) § 671-3(b). Garcia v. Robinson, 137
Hawai#i 388, 396 n.7, 375 P.3d 167, 175 n.7 (2016). HRS § 671-3
(2016) provides:
(b) The following information shall be supplied to
the patient or the patient's guardian or legal surrogate
prior to obtaining consent to a proposed medical or surgical
treatment or a diagnostic or therapeutic procedure :
(1) The condition to be treated;
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(2) A description of the proposed treatment or
procedure;
(3) The intended and anticipated results of the
proposed treatment or procedure;
(4) The recognized alternative treatments or
procedures, including the option of not
providing these treatments or procedures;
(5) The recognized material risks of serious
complications or mortality associated with:
(A) The proposed treatment or procedure;
(B) The recognized alternative treatments or
procedures; and
(C) Not undergoing any treatment or procedure;
and
(6) The recognized benefits of the recognized
alternative treatments or procedures.
(Emphasis added.)
Pali Momi argued that physicians, not hospitals, are
obligated to obtain a patient's informed consent to treatments
and procedures. HRS § 671-3(a) imposes the duty to give
information on "health care providers." HRS § 671-1 (2016)
defines "health care provider" to include a health care facility
as defined in HRS § 323D-2. The HRS § 323D-2 (2022) definition
includes "hospitals." And in Mroczkowski v. Straub Clinic & Hospital, 6 Haw. App. 563, 732 P.2d 1255 (1987), the hospital was
the only defendant. We applied HRS § 671-3(b) (1976) and held:
Mroczkowski was required to prove the specifically itemized
components of the statutory general standard. More
specifically, Mroczkowski was required to prove by proper
evidence that the harm he is complaining about was a
probable risk of the August 12, 1980 operation and that
Straub knew or should have known of that fact.
Id. at 568, 732 P.2d at 1259 (emphasis added).
Pali Momi thus had a duty to obtain its patient's
informed consent to a proposed medical or surgical treatment or a
diagnostic or therapeutic procedure to be performed at Pali Momi.
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We held that Pali Momi could potentially be vicariously
liable for Dr. Castanera's alleged medical negligence under the
apparent authority theory of agency. To prove a claim for
Dr. Castanera's failure to obtain Junior's informed consent to a
treatment or procedure, the Cabrals had to produce evidence that
Dr. Castanera "proposed [a] medical or surgical treatment or a
diagnostic or therapeutic procedure[.]" HRS § 671-3(b).
The Cabrals argued: "The medical records confirm that
none of these medical doctors discussed Junior's Troponin levels
or myocarditis (or any other diagnosis) with Junior/Plaintiffs.
They told him he was fine and sent him home with instructions to
change his diet and lifestyle (an all-too-common practice in
healthcare, especially here in Hawai#i)." The Cabrals did not
offer Junior's medical records or any other evidence to support
their argument.
Nor did the Cabrals offer evidence that Dr. Castanera
proposed a medical or surgical treatment or a diagnostic or
therapeutic procedure for Junior that would have triggered his
duty to provide information under HRS § 671-3(b). We hold, on
this record, that the trial court did not err by granting partial
summary judgment for Pali Momi on the Cabrals' claim for failure
to obtain Junior's informed consent to a treatment or procedure
under HRS § 671-3.4
We next address the trial court's denial of the
Cabrals' motion for a new trial based on alleged juror
4
The Cabrals' opening brief makes arguments that weren't made to the trial court in opposition to Pali Momi's motion for partial summary judgment. Arguments made for the first time on appeal are deemed waived. Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawai #i 438, 500, 164 P.3d 696, 758 (2007).
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misconduct, because it could impeach the jury's finding that Pali
Momi was not negligent based on Dr. Kao's and N.P. Deans's acts
or omissions.
C. The trial court did not err by denying the
motion for new trial based on alleged juror
misconduct.
Ten days after the jury returned its verdict, the
Cabrals moved for a new trial. They alleged misconduct by the
jury foreperson. The motion was supported by Senior's
declaration and some exhibits. Senior declared:
3. On January 19, 2024, after the verdict, I
searched for . . . the foreperson, on the internet and
eventually landed on the site www.mylife.com. When I looked
him up on that site, I was shocked to see that [the
foreperson] had already viewed my profile on
www.mylife.com[.] Attached hereto is a copy of my profile
and the screenshot proving that he viewed my profile.
8. I truly believe [the foreperson] was influenced
by his search of my profile. He likely concluded I was some
sort of deadbeat dad based on my prior DUI arrest and that
we were trying to profit from the death of our son based on
our past financial troubles as set forth on www.mylife.com.
For example, at the beginning of trial, he would politely
smile at us if we saw him outside of the courtroom. Towards
the end of the trial, he refused to make eye contact. It
cannot be because he did not like our testimony, as my wife
and I did not testify.
Exhibit 1 to the motion (we redacted the foreperson's
name) was:
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Senior's declaration did not authenticate Exhibit 1, although he
refers to it as "the screenshot proving that [the foreperson]
viewed my profile." Senior did not testify at the hearing on the
motion for new trial. His name appears nowhere on Exhibit 1, and
there is nothing on Exhibit 1 tying it to Senior. It does not
contain a date or any identifying information, such as a URL or
website address, revealing its origin or tying it in any way to
mylife.com.
Exhibit 1, viewed in the light most favorable to the
Cabrals, shows that someone input "[foreperson's name] 69, Ewa
Beach, HI" into a search engine to see who had accessed something
called a "Background Report" about "[foreperson's name] 69, Ewa
Beach, HI," and found that no one had, no websites were selling
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the foreperson's information, and there had been no data
breaches. No reasonable person could interpret Exhibit 1 as
showing that someone with the foreperson's name had "viewed
[Senior's] profile on www.mylife.com" as alleged in Senior's
declaration.
Exhibit 2 appears to be information from
https://www.mylife.com about "Leonard Cabral, 55" including an
unredacted date of birth, several addresses and telephone
numbers, and other information. It is undated. Senior's
declaration appears to describe it — although he never refers to
"Exhibit 2" — as "a copy of my profile[.]" Nothing on Exhibit 2
shows that the foreperson — or any person other than Senior —
ever viewed it.
"The trial judge, at a hearing on a motion for new
trial, acts as the trier of fact." State v. Furutani, 76 Hawai#i
172, 179, 873 P.2d 51, 58 (1994). The Cabrals' statement of the
points of error does not challenge the trial court's findings.
See Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(C).
Unchallenged findings of fact are binding on appeal. Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459, 40 P.3d
73, 82 (2002).
The trial court found:
21. In support of their Motion, Plaintiffs offered
Exhibit 1 — an alleged screenshot taken by Leonard
Cabral, Sr. of the mylife.com website. Leonard Cabral, Sr.
admitted to searching the internet AFTER the verdict was
entered to find out information about [the jury foreperson].
There are three columns of information on Exhibit 1. In the
third column, there is the name "[foreperson], 69, Ewa
Beach, Hawaii." Plaintiffs' counsel represented that a
program called "Snagit" was used to capture the screenshot.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
22. Exhibit 1 has no date on it.
23. Exhibit 1 has no identifying information to
determine where it came from.
24. Exhibit 1 does not indicate a date and time when
"[foreperson], 69, Ewa Beach, Hawaii" allegedly accessed
Leonard Cabral, Sr.’s profile on mylife.com.
25. Exhibit 1 does not state that [foreperson's
name], the juror, conducted a search of Leonard Cabral,
Sr.'s mylife.com profile.
26. Leonard Cabral, Sr. was not able to recreate
Exhibit 1.
27. Plaintiffs' counsel was not able to recreate
Exhibit 1.
28. Plaintiffs' counsel did not know and was unable
to provide the Court with the search engine that Leonard
Cabral, Sr. allegedly used to view the information contained
in Exhibit 1.
29. In support of their Motion, Plaintiffs' [sic]
also offered Exhibit 2 - an alleged a [sic] screenshot of
Leonard Cabral, Sr.'s mylife.com profile with the name
"Leonard Cabral" appearing a fifth of the way down the page,
but no way to confirm it is the same as Leonard Cabral, Sr.
31. Neither Exhibit 1 nor 2 confirm that [the
foreperson] even accessed the mylife.com website or what
[the foreperson] allegedly saw or viewed (assuming access
occurred). There is also no information in either Exhibits
1 or 2 regarding when [the foreperson] allegedly accessed
the mylife.com website.
Even if those findings of fact had been properly
challenged, the record contains substantial evidence supporting
them, and they were not clearly erroneous. See Cowan v.
Exclusive Resorts PBL1, LLC, 156 Hawai#i 268, 272, 574 P.3d 288,
292 (2025) (stating the clearly erroneous standard of review for
findings of fact).
The Cabrals contend the trial court applied the wrong
legal standard because, before applying the two-step test
described in Oishi v. Ganel, No. CAAP-XX-XXXXXXX, 2024 WL 278962
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(Haw. App. Jan. 25, 2024) (SDO),5 the court found "the record
failed to establish a credible allegation that [the jury
foreperson] engaged in juror misconduct before the verdict was
reached."6 They argue: "This was a clear abuse of discretion
since the lower court ignored applicable, controlling precedent
to impose an unnecessary requirement of its own." They contend
the trial court should have assumed the jury foreperson searched
mylife.com for information about Senior before the verdict was
returned. Their argument relies on a misreading of supreme court
precedent.
Grewer involved a murder trial. During jury selection,
"Prospective Juror 20 expressed to the courtroom bailiff a desire
to be excused from service, stating that she 'already had [her]
opinion.'" 157 Hawai#i at 107, 575 P.3d at 740. While being
questioned by the trial court outside the presence of the other
5
Oishi, an unpublished summary disposition order, quoted the test articulated in State v. Chin, 135 Hawai#i 437, 445, 353 P.3d 979, 987 (2015):
[T]he initial step for the trial court to take is to
determine whether the nature of the alleged deprivation
rises to the level of being substantially prejudicial. If
it does not rise to such a level, the trial court is under
no duty to interrogate the jury. And whether it does rise
to the level of substantial prejudice is ordinarily a
question committed to the trial court's discretion.
Where the trial court does determine that such alleged
deprivation is of a nature which could substantially
prejudice the defendant's right to a fair trial, a
rebuttable presumption of prejudice is raised. The trial
judge is then duty bound to further investigate the totality
of circumstances surrounding the alleged deprivation to
determine its impact on jury impartiality. The standard to
be applied in overcoming such a presumption is that the
alleged deprivation must be proved harmless beyond a
reasonable doubt.
2024 WL 278962, at *3 (emphasis omitted).
6
The Cabrals' motion for new trial made other arguments, but their opening brief only challenges the jury foreperson's alleged internet search for Senior. Their other arguments are waived.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
potential jurors, Prospective Juror 20 said three other potential
jurors heard her say "I wish I didn't have to be here. I —
literally I caretake for my uncle. I have — he just got out of
the hospital." Id.
The supreme court advised:
When determining if jury misconduct deprives a criminal
defendant[7] of an impartial jury, the following "conceptual
framework" guides our analysis:
[W]hen a defendant in a criminal case claims a
deprivation of the right to a fair trial by an
impartial jury, the initial step for the trial court
to take is to determine whether the nature of the
alleged deprivation rises to the level of being
substantially prejudicial. If it does not rise to
such a level, the trial court is under no duty to
interrogate the jury. And whether it does rise to the
level of substantial prejudice is ordinarily a
question committed to the trial court's discretion.
Where the trial court does determine that such alleged
deprivation is of a nature which could substantially
prejudice the defendant's right to a fair trial, a
rebuttable presumption of prejudice is raised. The
trial judge is then duty bound to further investigate
the totality of circumstances surrounding the alleged
deprivation to determine its impact on jury
impartiality. The standard to be applied in
overcoming such a presumption is that the alleged
deprivation must be proved harmless beyond a
reasonable doubt.
The defendant bears the initial burden of making a
prima facie showing of a deprivation that could
substantially prejudice his or her right to a fair
trial by an impartial jury. But once a rebuttable
presumption of prejudice is raised, the burden of
proving harmlessness falls squarely on the
prosecution.
Id. at 111, 575 P.3d at 744 (underscoring omitted) (bold italics
added) (quoting State v. Bailey, 126 Hawai#i 383, 399–400, 271
P.3d 1142, 1158–59 (2012)).
A prima facie showing of a deprivation is thus part of
the first step. The showing must include "some specific,
7
The framework applies in civil cases as well. Ricapor-Hall v. Philip Morris USA Inc., Hawai#i , , P.3d , , No. SCAP-XX-XXXXXXX, slip op. at 23 (Aug. 6, 2026).
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substantial evidence showing the occurrence of the outside
influence that may have possibly biased the juror." Ricapor-Hall
v. Philip Morris USA Inc., ___ Hawai#i ___, ___, ___ P.3d ___,
___, No. SCAP-XX-XXXXXXX, slip op. at 22 (Aug. 6, 2026) (emphasis
added) (quotation marks omitted) (quoting Chin, 135 Hawai#i at
443 n.10, 353 P.3d at 985 n.10); State v. Pauline, 100 Hawai#i
356, 381, 60 P.3d 306, 331 (2002) (party claiming juror
misconduct should "first present some specific, substantial
evidence showing a juror was possibly biased").
Here, the Cabrals did not sustain their step-one
burden. The trial court found, and the evidence supported, that
"[n]either Exhibit 1 nor 2 confirm that [the jury foreperson]
even accessed the mylife.com website or what [the foreperson]
allegedly saw or viewed (assuming access occurred). There is
also no information in either Exhibits 1 or 2 regarding when [the
foreperson] allegedly accessed the mylife.com website."
The Cabrals argue "the Hawaii test for juror misconduct
and undue influence is not limited to cases where the facts of
the misconduct are undisputed or uncontested." Grewer and the
previous Hawai#i cases on the issue involved conduct that was
undisputed.8 But that doesn't mean undisputed conduct must be
8
See Grewer, 157 Hawai#i at 107, 575 P.3d at 740 (Juror 20's comments were confirmed by the bailiff); State v. Pitts, 146 Hawai #i 120, 131-32, 456 P.3d 484, 495-96 (2019) (during deliberations, jury cut open sealed evidence bag and found "evidence that had not been presented in court, for which no foundation had been laid, and which had not been properly admitted into evidence"); Chin, 135 Hawai#i at 440-41, 353 P.3d at 982-83 (during trial, juror approached witness about possible employment); Bailey, 126 Hawai#i at 385, 271 P.3d at 1144 (during deliberations, one juror informed the others that defendant had previously been charged with and/or convicted of murder); State v. Yamada, 108 Hawai#i 474, 475, 122 P.3d 254, 255 (2005) (juror fell asleep during defendant's closing argument); Pauline, 100 Hawai #i at 382, 60 P.3d at 332 (alternate juror made statements to defendant's counsel suggesting she had predeliberation discussions with jurors who actually
continue...
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shown before the two-step test can be applied. As part of step
one, there just has to be a prima facie showing "of some
specific, substantial evidence showing the occurrence of the
outside influence that may have possibly biased the juror."
Chin, 135 Hawai#i at 443 n.10, 353 P.3d at 985 n.10 (quotation
marks omitted); Pauline, 100 Hawai#i at 381, 60 P.3d at 331.
There may be a dispute about what happened, but with "specific,
substantial evidence" of an outside influence a court can conduct
the first-step analysis.
Here, the trial court expressed frustration during the
hearing on the motion for new trial:
Okay. The Court is reluctantly ready to rule.
I will start off with saying the record is extremely
imperfect in the Court's estimation. All of the case law
before today involved cases where there is no dispute that
juror misconduct occurred. And then we have this case. And
none of the lawyers appear to appreciate how different this
case is from every other appellate case on the question of
juror misconduct.
This case was different because the Cabrals failed to
sustain their step-one burden to show specific, substantial
evidence of an outside influence that could have substantially
prejudiced their right to a fair trial by an impartial jury. We
8
...continue
deliberated); Furutani, 76 Hawai#i at 177, 873 P.2d at 56 (during deliberations, general comments were made about defendant's failure to testify); State v. Williamson, 72 Haw. 97, 99, 807 P.2d 593, 595 (1991) (dictionary was found in jury room after trial court denied jury request for a dictionary and two definitions); Lopez v. Sears Roebuck & Co., 70 Haw. 562, 563–64, 777 P.2d 715, 715–16 (1989) (in suit for negligent assembly of bicycle, jury foreperson went to defendant's store, watched assembly process, then reported to the other jurors "he was now certain that Sears was 100% free from fault or liability"); State v. Larue, 68 Haw. 575, 578, 722 P.2d 1039, 1042 (1986) (during deliberations in rape trial, jury foreperson vouched for, and attempted to secure acceptance by other jurors of, reliability of statements by child complainant based on foreperson remembering being "touched" when she was three); State v. Keliiholokai, 58 Haw. 356, 357, 569 P.2d 891, 893 (1977) (newspaper published article about defendant's previous robbery convictions during non-sequestered jury trial).
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
hold that under these circumstances, the trial court did not
abuse its discretion by denying the Cabrals' motion for new trial
based on alleged juror misconduct of which there was no specific,
substantial evidence.
D. The Cabrals waived their appeal from the
denial of their motion for new trial based on
manifest weight of the evidence.
The Cabrals also moved for a new trial arguing the
verdict was against the manifest weight of the evidence. See
Carr v. Strode, 79 Hawai#i 475, 488, 904 P.2d 489, 502 (1995).
The trial court denied the motion. Although stated as a point of
error, the Cabrals present no argument on the point. The point
is waived. See HRAP Rule 28(b)(7) ("Points not argued may be
deemed waived.").
We need not address the points relating to the judgment
as a matter of law on Leslie's and Senior's individual claims
because they were mooted by the jury's finding that Pali Momi was
not negligent.
V. CONCLUSION
The May 24, 2024 Final Judgment is affirmed in part and
vacated in part. The judgment for Pali Momi and against the
Cabrals on the jury's finding that Pali Momi was not negligent
based on acts or omissions of its employees, including Dr. Kao
and N.P. Deans, is affirmed. The February 8, 2024 Order Granting
Defendant Pali Momi Medial Center's Motion for Partial Summary
Judgment Regarding Informed Consent and Vicarious Liability is
affirmed as to the claim for failure to obtain informed consent,
but vacated as to the claim for vicarious liability.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
This case is remanded for further proceedings on the
claims by Leslie, Junior's estate, Senior, and Nicholas that Pali
Momi is vicariously liable for acts or omissions by Dr. Castanera
under the theory of apparent authority, including their claims
for negligent infliction of emotional distress.
We note that a Stipulation for Partial Dismissal with
Prejudice of Defendant Shayne M. Castanera, M.D. and to Amend
Caption was entered on October 31, 2023; we express no opinion on
the effect of the stipulation, if any, on remand.
On the briefs:
/s/ Karen T. Nakasone
Kai Lawrence, Chief Judge
Sergio Rufo,
for Plaintiffs-Appellants /s/ Keith K. Hiraoka Leslie Cabral, as Associate Judge
Personal Representative,
and Nicholas Cabral. /s/ Clyde J. Wadsworth
Associate Judge
Gail Y. Cosgrove,
Deirdre Marie-Iha,
Maegan A. Ruggles,
Lindsey N. Barrios,
for Defendant-Appellee
Pali Momi Medical Center.
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