R.H. v. Hayashi

majority opinion

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Electronically Filed

Supreme Court

SCAP-XX-XXXXXXX

09-OCT-2026

10:44 AM

Dkt. 42 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---________________________________________________________________

R.H., Individually and as Guardian Ad Litem for A.H.,

an Incompetent Adult,

Plaintiff-Appellant/Cross-Appellee,

vs.

KEITH T. HAYASHI, in his official capacity as

Superintendent of the Hawaiʻi Department of Education and

STATE OF HAWAIʻI DEPARTMENT OF EDUCATION,

Defendants-Crossclaimants-Crossclaim Defendants-Appellees/CrossAppellees,

and

STATE OF HAWAIʻI,

Defendant-Crossclaimant-Crossclaim DefendantAppellee/Cross-Appellant,

and

CHRIS NAKAGAWA and ANTHONY JONES,

Defendants-Crossclaimants-Crossclaim DefendantsAppellees/Cross-Appellees,

and

LANAKILA PACIFIC, a non-profit organization,

Defendant-Crossclaim Defendant-CrossclaimantAppellee/Cross-Appellee.

SCAP-XX-XXXXXXX

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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CAAP-XX-XXXXXXX; CIV. NO. 1CC121003327)

OCTOBER 9, 2026

DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ.,

AND CIRCUIT JUDGE REMIGIO, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

Both the plaintiffs and defendants appeal a circuit court

final judgment in this transfer case.

A.H. (pseudonym “Amy”) has severe cognitive disabilities

and lacks capacity to consent to sex. While a student at

McKinley High School (“McKinley”), Amy was sexually abused by

male students. The abuse eventually caused her to suffer a

psychotic breakdown and sustain serious, continuing

psychological injuries.

Amy’s mother (“Mother”) filed this negligence lawsuit on

behalf of Amy and herself (collectively, “Plaintiffs”) in the

Circuit Court of the First Circuit (“circuit court”). The State

of Hawai‘i, its Department of Education (“DOE”), and DOE

employees (collectively, “the State”) were named as defendants.

Plaintiffs alleged that the State negligently failed to protect

Amy from repeated sexual abuse while she attended McKinley.

The circuit court presided over a sixty-six-day bench

trial. There was extensive evidence that school personnel knew

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of Amy’s significant cognitive disabilities, recognized her

extraordinary vulnerability to sexual exploitation, were

repeatedly confronted with warning signs that she was being

sexually abused, but failed to take reasonable measures to

prevent it.

The circuit court concluded that the State negligently

failed to protect Amy. It determined that Plaintiffs’ injuries

and requisite treatment merited a total damages award of more

than $14 million, more than half for special damages. But

without any request from the State that it do so, in its written

decision, the circuit court apportioned 30% of the fault to the

male students and reduced Plaintiffs’ damages award by that

percentage.

This sua sponte apportionment is the main issue on appeal.

The circuit court cited Hawai‘i Revised Statutes (“HRS”) §

663-10.5 (Supp. 2017) as the basis for this apportionment. That

statute provides in relevant part:

§663-10.5 Government entity as a tortfeasor; abolition of

joint and several liability. (a) Any other law to the

contrary notwithstanding, . . . in any case where a

government entity is determined to be a tortfeasor along

with one or more other tortfeasors, the government entity

shall be liable for no more than that percentage share of

the damages attributable to the government entity[.]

(b) For purposes of this section, the liability of a

government entity shall include its vicarious liability

for the acts or omissions of its officers and

employees.

any unit of government in this State, including:

(1) The State[.]

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Plaintiffs contend the circuit court improperly reduced

their recovery when the State never pursued apportionment of

liability to the male students. The State pled HRS § 663-10.5

as a defense in its answer but never argued that the male

students should bear a portion of liability. Rather, in its

closing argument and proposed findings and conclusions, the

State briefly argued that if the State was found liable, then

part of the liability should be apportioned to Mother.

Specifically, the State asked the circuit court to reduce

the Plaintiffs’ damages by Mother’s alleged negligence in

failing to provide more information to the school. The circuit

court rejected this argument but then, on its own accord,

allocated liability to the male students.

On Plaintiffs’ points of error on appeal, we hold that the

circuit court’s sua sponte allocation of fault to the male

students violated Plaintiffs’ Hawaiʻi constitutional due process

rights. Plaintiffs were deprived of notice and an opportunity

to be heard on whether the boys were actually “other

tortfeasors” under HRS § 663-10.5 and, if so, what percentage,

if any, should be allocated to them. We set out what steps due

process requires for an “other tortfeasor” determination.

We also hold that there was insufficient evidence that the

male students qualified as “other tortfeasors” under HRS § 663-10.5, especially because the circuit court explicitly found

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little to no evidence the boys knew any details about Amy’s

cognitive disabilities or that they were aware or should have

been aware that Amy lacked capacity to consent to sex.

We further hold that apportionment of liability under HRS §

663-10.5 is an affirmative defense for which the State did not

meet its burden of proof.

Finally, based on these holdings, we also hold that the

circuit court erred by denying Plaintiffs’ motion to amend the

judgment to reverse its apportionment decision.

On cross-appeal, the State argues that the circuit court

abused its discretion by limiting Amy’s deposition, refusing to

order a Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule 351

medical examination of Amy, and awarding excessive damages.

These arguments are without merit. The circuit court acted

within its discretion by denying additional discovery based on

the extensive evidence indicating that further examination of

HRCP Rule 35 states, in relevant part:

Rule 35. Physical and Mental Examination of Persons. (a)

Order for Examination. When the mental or physical

condition . . . of a party, or of a person in the custody

or under the legal control of a party, is in controversy,

the court in which the action is pending may order the

party to submit to a physical or mental examination by a

suitably licensed or certified examiner or to produce for

examination the person in the party's custody or legal

control. The order may be made only on motion for good

cause shown and upon notice to the person to be examined

and to all parties and shall specify the time, place,

manner, conditions, and scope of the examination and the

person or persons by whom it is to be made.

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Amy, whether through a continued deposition or a HRCP Rule 35

examination, would likely cause her significant psychological

harm. Finally, the damages awarded by the circuit court were

supported by the record.

We therefore affirm the circuit court’s findings,

conclusions, and judgment except for its allocation of 30% of

the liability to the male students. We remand to the circuit

court for entry of an amended judgment consistent with this

opinion.

II. Background

A. Factual Background

This factual background is derived from the circuit court’s

findings of fact.

Amy was a special education student with serious cognitive

impairments. She was identified as a special education student

in the third grade and since then had Individualized Education

Plans (“IEP”) that identified her educational needs.

Amy had no obvious physical manifestations of her cognitive

disability. But her impairments were severe, and she was

functioning far below her chronological age and appearance.

When Amy entered McKinley High School in 2008, she functioned at

the level of a five-year-old, or even younger. Amy’s disability

was consistently affirmed during multiple cognitive assessments,

including testing that showed an IQ score of 40.

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A chronology of relevant events follows.

August 2008: Amy began ninth grade at McKinley. McKinley

received her eighth-grade IEP and was aware she was a

particularly low-functioning special education student who

required monitoring. Amy’s eighth-grade IEP recommended that

she not be placed with general education students, particularly

due to a history of bullying.

Fall 2008: Despite this recommendation, Amy was initially

placed in two pre-algebra classes with significantly higherfunctioning students. The teacher, Mr. Choy (“Choy”),

immediately determined that his class was not suitable for Amy.

Choy was also aware of incidents in which other children in his

class teased Amy.

He also heard that students were talking about Amy

performing oral sex on a higher-functioning boy. The only step

Choy took regarding this was to discuss the allegation with the

boy, who denied it. There is no record of the school

administration or of Mother being informed. Choy did recommend,

however, that Amy be placed in a non-diploma track program that

teaches simple workplace skills such as cooking, how to be on

time, and how to make change. In November 2008, Mother also

requested that Amy be moved into this non-diploma track program.

Despite the recommendation, Amy was kept in her assigned

classes.

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February 2009: By February 2009, multiple additional

teachers had become aware that Amy was reportedly giving oral

sex to several different boys. For instance, Ms. Folger

(“Folger”) had heard Amy mentioning that she was giving oral sex

to boys at school. Folger reported this information to Mr.

Greenland (“Greenland”), Amy’s care coordinator, and Maile

French, the Special Education Department Chair.

There is no evidence that this information was further

reported to school administrators or to Mother, or that the

report was investigated.

Also during her freshman year, Amy left campus unnoticed

with a senior and went to Ala Moana Beach Park, where he

apparently raped her orally, vaginally, and anally in a public

bathroom. This incident was not reported or investigated at the

time.

November 2009: When Amy was in tenth grade, Greenland

called Mother and informed her that Amy was performing oral sex

on various boys. But around the same time, Greenland also sent

Mother inappropriate personal text messages, including calling

her “beautiful” and offering to “bring her some soup.” Mother

renewed her request that Amy be transferred to the non-diploma

track program.

Mother began seeing a therapist to get advice on how to

speak with Amy about sex and about what was going on.

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Spring 2010: In spring 2010, Amy was moved to the nondiploma track program. She was moved into Mr. Nakagawa’s

(“Nakagawa”) class. Nakagawa also took over as her care

coordinator from Greenland.

In April 2010, various teachers reported to Nakagawa that

Amy “displays inappropriate conduct w/her male peers & this

needs to be addressed.” The report also noted that “she was

also caught in the closet a couple of times w/the same male

peer, after being told not to do so.”

Nakagawa did not act on the report, nor was Mother

notified.

August 2010: In August 2010, another instructor submitted

a report documenting concerns about Amy’s interactions with male

students. The report was provided to Choy, who, in turn,

reported the concerns to Nakagawa. Although Choy understood

that Amy’s cognitive disabilities could be contributing to her

interactions with male peers and recognized that she sought

attention, both Choy and Nakagawa minimized the reported

concerns by characterizing Amy as “boy crazy.”

Mother was not notified of these reported concerns.

Fall 2010: Amy’s Fall 2010 IEP reflected Nakagawa’s concern

that peers might take advantage of Amy. But the record does not

indicate that Nakagawa further reported these concerns, informed

Mother, or that any steps were taken to address them.

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Mr. Price (“Price”), Amy’s art teacher, was told by two

girls that Amy “performed oral sex on a boy at school.” Price

confirmed that he had previously heard similar rumors about Amy

and sex.

Price did not act upon the information until after the

additional January 2011 incident next described. At that time,

he did not inform Amy’s care coordinator, any school

administrator, or Mother.

January 2011: On January 4, 2011, Amy and a boy both asked

Price if they could go to the bathroom. Price allowed them to

go to the bathroom at the same time. Another student reported

she saw the boy with Amy in the boys’ bathroom. Price took both

Amy and the boy to the office of Vice-Principal Jones (“VP

Jones”).

Although the boy was in the same class as Amy and had a

specific learning disability, he was not severely cognitively

disabled like Amy. Without any investigation, the school

determined that the sexual conduct was consensual. The school

then suspended both Amy and the boy.

Before deciding to suspend Amy, VP Jones did not review

Amy’s IEP or speak with Mother. After deciding to suspend Amy,

VP Jones met with Mother but would not identify the boy

involved. The school did not review Amy’s IEP to determine

whether her cognitive disabilities affected her ability to

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consent, nor did it ask whether the boy knew Amy was cognitively

disabled. The incident was not reported to the police.

February 2011: In February 2011, Mother reported to the

school by email that a boy wrote a note to Amy asking her to

meet out of view of the cameras to “hug.” Mother also

discovered that the boy had arranged to have phone sex with Amy.

There is no evidence the school took any action after

receiving this email.

March 2011: Worried about Amy’s safety, Mother had Amy

examined by Dr. Tyson, a licensed psychologist. Dr. Tyson

assessed Amy and wrote a report delivered to the school in March

2011 stating that Amy “should not ever be unsupervised while on

school grounds.”

One-on-one supervision was a fairly standard service for a

student with severe cognitive disabilities. In fact, Nakagawa

had never previously had to recommend one-on-one supervision

because most non-diploma students already had an assigned oneon-one aide. Yet, Amy was still not assigned a one-on-one aide.

April 2011: Amy started seeing therapist Karlene Perez

(“Perez”). Amy told Perez about the January 4, 2011 incident

and that “she didn’t want to do it and that she was scared.”

Also, another student reported to Choy that Amy touched the

crotch of a male student. Choy spoke with Amy about the

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incident. Amy cried and told Choy she was afraid that the boy

would not like her “if she did not do it.”

There is no evidence that Choy reported the incident to

anyone.

Becoming increasingly concerned for Amy’s safety, Mother

again informed the school she urgently believed Amy needed oneon-one supervision. The record does not reflect that McKinley

ever provided such supervision. A few days later, Mother sent

an email to the school reporting that a boy had stuck a note to

Amy’s back that said “kick me” and that another student hit Amy

hard enough to leave a mark.

There is no evidence that the school acted in response to

these concerns.

On April 15, 2011, a behavioral assessment in school

records concluded that, “whenever unsupervised and a peer asks

[Amy] for something, [Amy] has given in to peer persuasion,

including sex acts, to gain peer attention and friendship.” The

record does not identify who prepared the assessment or explain

the circumstances under which it was conducted. Based on that

assessment, the school created a Behavioral Support Plan

requiring that any future incidents be reported to Mother and

the vice-principal.

May 2011: Mother sent another email to school

administrators reporting that Amy had again been pressured by a

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boy who wanted her to go to a specific building to “do bad

things.” Amy reported that the boy said, “come here, suck my d-.”

Mother again demanded that the school provide increased

supervision. The school did not do so.

August 2011: Shortly after beginning twelfth grade, after

years of repeated sexual assaults, Amy experienced a

catastrophic psychotic breakdown. Within a week of starting her

senior year at McKinley, she displayed a marked change in

behavior and became increasingly agitated. She reported feeling

“scared” and that “she couldn’t feel her heart.” She had to

come home early from a church event due to this fear. Amy told

a school employee that “everyone was looking at her.” She also

said an adult female neighbor wanted to have sex with her.

Within a few days, Amy was clearly hallucinating and was

not lucid. She was hospitalized on August 8, 2011, and remained

so for three months.

Amy was provided with medication and started to feel safer

by the end of August, when she was able to speak about what was

causing her to feel scared. Amy described repeated sexual abuse

by students at McKinley. She was diagnosed with post-traumatic

stress disorder (“PTSD”) stemming from the sexual abuse.

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PTSD is typically treated with cognitive behavioral

therapy. But cognitive behavioral therapy does not work for Amy

due to her cognitive disability.

November 2011: Amy was discharged from the hospital on

November 2, 2011. A typical stay for a child at an inpatient

center is about seven to ten days; Amy’s hospitalization lasted

three months.

Her doctors recommended that she not return to McKinley.

She was then transferred to Variety School.

In 2013, Amy began seeing psychiatrist Angela King, M.D.

(“Dr. King”). Dr. King confirmed that sexual abuse at McKinley

was a cause of Amy’s PTSD, and that Amy could not benefit from

the best available treatment, cognitive behavioral therapy,

because of her cognitive deficits. Dr. King opined that Amy

would need treatment for the rest of her life resulting from the

events at McKinley.

In 2014, Mother also sought treatment from Dr. King. Dr.

King diagnosed Mother with panic disorder and major depressive

disorder, and opined that Amy’s abuse and PTSD were substantial

factors in her diagnosis.

In 2015, Dr. Tyson assessed Amy and concluded that she had

PTSD due to the history of sexual assault and that she should

stay at Variety School because of the close supervision

available.

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By the time the circuit court made its findings, Amy was

twenty-seven years old. Her PTSD remained persistent and

untreatable.

B. Circuit Court Proceedings

1. Complaint and Pre-Trial Discovery Issues

On February 14, 2014, Plaintiffs filed their first amended

complaint. Plaintiffs asserted claims against the State arising

from its failure to protect Amy from repeated sexual abuse while

she attended McKinley and sought damages for the severe

physical, psychiatric, psychological, and emotional injuries

that followed.

Before trial, the parties engaged in extensive discovery

concerning Amy’s condition. Issues arose from the State’s

discovery efforts. The circuit court appointed a discovery

master on June 4, 2015.

The State sought to depose Amy, and Plaintiffs moved for a

protective order seeking to prohibit or limit the deposition.

Two psychiatrists and two psychologists provided medical

opinions that Amy was incompetent to testify and that subjecting

her to a deposition “would subject her to a substantial risk of

harm and re-victimization based on her medical history,

hospitalization and diagnosis of PTSD, and her subsequent

treatment.” Some excerpts from these reports are as follows:

Dr. King, Amy’s psychiatrist, reported:

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Due to these symptoms along with her intellectual

disability it is unlikely that she will ever be able to

benefit from the gold standard of trauma therapy,

specifically Trauma Focused Cognitive Behavioral Therapy,

since it has a higher chance of re-traumatizing her.

Similarly, being placed in any situation that will cause

her to discuss her past trauma experiences, including going

through deposition will likely retrigger her trauma

symptoms and may even lead to re-hospitalization since she

does not have the ability to be able to process the trauma

due to her intellectual disability.

Therefore, it is not medically recommended to place her in

an anxiety inducing setting which could trigger her PTSD

symptoms and risk hospitalization.

Dr. Anthony Urquiza (“Dr. Urquiza”), a psychologist who

specializes in treating victims of sexual molestation, wrote:

It is common for victims of sexual assault to experience

trauma symptoms that are sustained for many years after

their victimization. Thoughts and images of being sexually

victimized can trigger intense and de-stabilizing mental

health symptoms. [Amy] has a multi-year history of serious

mental health symptoms associated with her prior sexual

victimization, has had a prior inpatient psychiatric

hospitalization due to psychotic behavior, and is currently

taking several types of psychiatric medication (i.e., an

antidepressant, an antipsychotic, and medication to

decrease agitation). Asking [Amy] a series of questions

about her prior sexual victimization may trigger thoughts

and feelings that are likely to increase her trauma-based

symptoms. Given the severity of her past symptoms (e.g.,

self-mutilation, severe psychosis, prior inpatient

psychiatric hospitalization), direct questioning of [Amy]

on this topic could result in a resumption of these

problems or other devastating consequences.

Given the high potential for a severely negative traumatic

response to being questioned, participating in a deposition

or court proceeding is an unsafe proposal that would

endanger [Amy’s] mental health. The presence of a ‘third

person’ to oversee the experience of [Amy] being a witness

would not decrease the risks associated with responding to

such questions.

After additional briefing and a hearing on January 19,

2016, the circuit court denied Plaintiffs’ request for a blanket

prohibition on Amy’s deposition, indicating that the State had a

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legitimate interest in preparing for trial. But the circuit

court found good cause to impose protective measures to

“minimize any anxiety-inducing situation and to protect [Amy]

from emotional distress or risk of harm to her psychological

well-being.” The circuit court also reserved deciding on Amy’s

competency to testify, ruling that questions regarding whether

the deposition testimony would be admissible at trial would not

preclude the State from taking Amy’s deposition.

The circuit court (1) ordered that Amy’s deposition occur

at the Children’s Justice Center or another child-friendly

location, (2) limited questioning to ninety-minute sessions and

seven hours total, (3) required the discovery master to observe

the deposition through a one-way mirror, with authority to

recess or terminate the deposition if Amy became distressed, (4)

permitted Amy's therapist to monitor the proceedings, and (5)

authorized the discovery master to implement any additional

protective measures deemed necessary.

Amy’s first ninety-minute deposition session took place on

March 31, 2016. Amy’s treating psychiatrist, Dr. King, attended

the deposition, during which Amy exhibited significant anxiety.

After examining Amy, Dr. King concluded that the deposition had

caused substantial emotional deterioration and that no

additional deposition could be conducted safely because Amy’s

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chronic PTSD and intellectual disability prevented meaningful

recovery. Dr. King explained:

My significant concern is that [Amy] reported being scared,

worried and uncomfortable and the bulk of the most

difficult and serious material, including [Amy]’s

victimization, is likely to be raised in the next session.

My clinical impression is that [Amy]’s fear combined with

any questions about sexual victimization together with her

preoccupation that [the attorney conducting the deposition

questioning] knows where she lives will trigger her complex

PTSD and a resumption of her psychotic symptoms, requiring

hospitalization.

She also stated in an additional declaration that:

As provided in the treatment records and as I testified at

my deposition, multiple attempts have been made to treat

[Amy] with the PTSD specific intervention of trauma-focused

cognitive behavior therapies. These attempts have not been

successful because [Amy] lacks the intellectual capacity to

retain and maintain the necessary coping strategies that

must be in place to engage in and receive the benefit of

this therapy.

In a third declaration, she wrote:

I opined that there is no set amount of time when it may be

safe to put [Amy] through a deposition since chronic PTSD

can be a lifelong condition and because of [her]

intellectual disability she is unable to benefit from

treatment. When we discussed the harms outweighing the

benefits, I identified the harms of a deposition as the

risk of re-hospitalization and the likelihood of her

becoming acutely unstable again. I identified the benefits

as her testimony and since that may not be reliable or

accurate because of her intellectual disability, then the

benefits do not outweigh the harms.

Dr. Urquiza also reviewed the video recording of Amy’s

deposition and observed symptoms consistent with her PTSD

diagnosis, including anxiety, hypervigilance, and avoidance.

Dr. Urquiza warned that requiring Amy to confront the

circumstances of her trauma through further deposition

questioning would likely retraumatize her. Dr. Urquiza wrote:

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I understand that in the next session of [Amy]’s

deposition, she will be confronted with facts surrounding

her trauma and prior-victimization. It is medically

contraindicated to confront [Amy] with such questions in a

deposition setting because forcing [Amy] to do so will

likely result in re-traumatizing her resulting in more

severe symptoms than she exhibited during and after the

first session of her deposition. As I indicated in my

report dated July 17, 2015, it was reasonably expected

[Amy] might persist in a deposition even though distressed

and have a delayed negative response to the deposition. The

reports of Dr. Angela King subsequent to the first session

of [Amy]’s deposition, demonstrating that presented with

evidence of anxiety and paranoia is consistent with my

expressed concerns.

The first deposition also illustrated concerns regarding

the reliability of Amy’s testimony. During the session, Amy

gave inaccurate responses regarding basic aspects of her

personal history, including testifying (1) that she rode a

Roberts Hawaiʻi school bus during her freshman year, even though

that did not happen until she began attending Variety School,

and (2) that she owned a “German Shepherd,” despite not having

one. Plaintiffs argued that these examples demonstrated Amy’s

confusion regarding time periods and susceptibility to leading

questions, concerns that were echoed by multiple medical

professionals. For example, Dr. Urquiza wrote:

I observed in the video that [Amy] exhibited symptoms

consistent with her PTSD diagnosis, including anxiety,

hyper-vigilance, reassurance from adults and avoidance. I

observed that the questioning of [Amy] was not designed to

ensure that she understood the questions that she was

answering and, in fact, demonstrated how suggestible she

was based on the leading manner in which she was asked

questions. An example of such testimony was with respect to

whether she understood the difference between fiction and

non-fiction. All of this evidences the fact that she is not

competent to testify at a deposition or trial.

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Based on these concerns, Plaintiffs again moved to

terminate Amy’s deposition. After considering the discovery

master’s report and medical evidence, the circuit court found

Amy competent to testify and ordered that her remaining

deposition sessions proceed under the existing protective order

conditions.

On September 29, 2016, Amy participated in a second ninetyminute deposition. During that session, questioning focused

extensively on the sexual abuse Amy experienced while a student

at McKinley.

After the second deposition, Amy’s condition deteriorated

significantly. Dr. King reported that Amy exhibited increased

fear, anxiety, depression, nervousness, tearfulness, and

sleeplessness. Dr. King wrote:

During the September 29, 2016 deposition session, [Amy] was

asked numerous questions regarding her sexual assaults

including her rape by [a student]. [Amy] exhibited symptoms

of distress. This became particularly evident to me during

a break at the 1-hour mark of the deposition when I had an

opportunity to personally observe [Amy] in an adjoining

conference room. At that time, [Amy] was crying and

anxious[.]

After the session held on September 29, 2016, I saw [Amy]

in my office on an emergent basis the following day. [Amy]

presented with heightened anxiety, fear, inability to

sleep, and tearfulness.

I saw [Amy] again in my office on October 5, 2016. I

observed that [Amy]’s condition had worsened . . . While

alone in my office, she cried, appeared fearful and

reported being scared. She is afraid of being alone and has

been experiencing more anxiety attacks. She has been fairly

stable up to this point during our sessions, but I have

definitely seen an increase in symptoms, including

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depression, fear, and anxiety since she went through the

most recent deposition. She is being asked questions that

are traumatic in nature and ordinarily in therapy, these

questions would not be asked when the patient is not able

to apply relaxation skills. They are also not asked when

the patient is unable to safely process past trauma as

[Amy]'s current symptoms demonstrate. Forcibly asking these

questions can lead to further trauma, increasing symptoms,

and possible re-hospitalization. It is my firm opinion that

[Amy]’s increased symptomology is a result of her

experience at her depositions recounting the trauma that

she experienced at school.

It continues to be my clinical opinion that the deposition

of [Amy] [is] harmful and should be terminated. This

opinion is reinforced by my witnessing [Amy] exhibiting

distress and harm during the deposition sessions and the

increased symptoms and instability she is exhibiting in

their aftermath.

Dr. King increased Amy’s psychiatric medication to address

her worsening symptoms and to minimize the risk of another

psychotic episode. When Dr. King examined Amy again on October

5, 2016, she remained fearful, cried throughout the visit, and

appeared to be in worse condition, despite the increased

medication.

Dr. Urquiza also submitted a supplemental declaration

noting that “there is significant concern about [Amy]’s current

level of distress, and risk of additional harm.” He stated:

It should be clear that [Amy] has been harmed by her

involvement in her second deposition session and continued

involvement in the third portion of her deposition will

likely result in additional harm.

Dr. Barry Carlton, one of Amy’s treating psychiatrists,

likewise stated:

[C]onsidering the severity of the symptoms which the

patient presented, as well as the severity of her cognitive

impairment, and the incomplete nature of her treatment, if

she were to attempt to re-create what happened in an

unprotected, deposition environment, it would pose a risk

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of exacerbation of symptoms, return of anxiety, and an

increase in anxiety from which it might prove to be

difficult for the patient to recover.

Her treating therapist, Perez, also reported that Amy’s

presentation and “intense fear” were “very similar” to what she

had observed immediately before Amy’s psychotic break in 2011.

Despite these reports, the discovery master recommended

denying Plaintiffs’ motion to terminate Amy’s deposition and

permitting the deposition to continue under the imposed

protections. Plaintiffs appealed this discovery master order to

the circuit court. After hearings, the circuit court denied

Plaintiffs’ appeal and ordered “the third deposition session of

[Amy]” to proceed.

The State agreed, however, that Amy’s deposition should be

postponed. On March 6, 2017, the State moved to continue the

trial, acknowledging that Amy should not undergo a further

deposition while her condition remained unstable. The State

indicated that “[a] fair trial requires that the Defendants

finish [Amy]’s deposition only when [Amy] is emotionally well”

and requested that trial be reset once [Amy] was “stable enough

to present reliable testimony.” The State later clarified that

it would consider Amy “stable” only when her medication had been

reduced and her symptoms had returned to the level they were at

before the September 29, 2016 deposition.

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The State’s retained expert, Dr. Tanya D’Avanzo (“Dr.

D’Avanzo”), similarly recommended suspending Amy’s scheduled

HRCP Rule 35 examination after learning of her condition after

the deposition. The State reported as follows to the circuit

court:

Appraised of [Amy]’s condition as reported recently by Mr.

Ferrer, Dr. D’Avanzo recommended and the State by

this communication suspends the [examination] of [Amy]

scheduled for February 17, 2017. In Dr. D'Avanzo’s opinion,

the medication taken by [Amy], now at twice the dosage as

when [Amy] was observed in September of 2016, can have a

sedating effect on any patient and which effect could

impair [Amy]’s clarity during the interview portion of Dr.

D’Avanzo’s assessment. Because the State also noticed the

deposition of [Mother] for February 22, 2017 to follow the

last examination session with [Amy], the State will suspend

the deposition of [Mother] to a date which follows the

final deposition session of [Amy].

The State’s motion to continue was granted.

The circuit court then granted Plaintiffs’ request for a

limited HRCP Rule 35 examination for the sole purpose of

determining whether Amy could safely undergo any further

deposition questioning and, if not, when the issue should be

revisited. The court appointed Dr. Barbara Higa-Rogers (“Dr.

Higa-Rogers”) as its neutral expert psychologist. After

reviewing Amy’s medical records, observing the videotaped

deposition sessions, and conducting her own clinical evaluation,

Dr. Higa-Rogers issued her report on December 13, 2018. She

opined against allowing any further depositions of Amy:

[I]t is my professional opinion, the potential benefits of

[Amy] testifying for a two hour period or less, do not

outweigh the risk to her emotional state, and is therefore

not supported.

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Given the severity of [Amy]’s intellectual disability,

which is pervasive in nature, there is no expected

improvement expected in her ability to comprehend the legal

process or be able to engage in gold standards of treatment

to assist her in navigating her prior experiences.

Therefore, change is unlikely. As noted, [Amy] also has

significant trauma related sequalae and the prior

depositions lead to an increase in her symptoms and

required an increase in her medications to address her

nightmares, startle response and fears of seeing the

state’s attorney. The benefits of pursuing a third

deposition do not outweigh the potential risks to [Amy]’s

mental health, limited coping and is unlikely to yield any

significant additional information now or in the

foreseeable future.

Dr. Higa-Rogers further opined that, if the circuit court

nevertheless required additional questioning, protective

measures should be implemented to reduce the risk of harm,

including allowing Amy to control breaks, imposing strict time

limits, permitting questioning through her treating providers

where possible, limiting repetitive questioning, and allowing

counsel to observe from a separate room.

After Dr. Higa-Rogers’ report, Plaintiffs again moved for a

protective order terminating any further deposition testimony.

The circuit court denied the motion without prejudice but

ordered that no further deposition of Amy could occur without

prior court approval.

More than a year later, the State moved to resume Amy’s

deposition and separately moved for a HRCP Rule 35 examination.

As to the deposition, the State argued that (1) additional

testimony was necessary to satisfy pretrial deadlines, (2) Amy

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had received sufficient therapy since her prior deposition, (3)

questioning would be limited to events occurring after July

2011, and (4) further discovery was necessary to develop its

alternative causation defense.

As to the proposed HRCP Rule 35 examination, the State

sought an eight-hour examination consisting of four hours of

interviews and four hours of testing. The State asserted that

good cause existed for the examination because the causes of

Amy’s August 2011 psychotic break had “never been fully

established or evaluated.”

Plaintiffs opposed both motions, relying on updated

opinions from Amy’s treating providers that her condition

remained substantially unchanged and that additional questioning

or examination continued to pose a significant risk of

psychological harm. Dr. King reported that Amy continued to

suffer from PTSD symptoms, including nightmares, anxiety, fear,

hypervigilance, and the risk of potential psychosis. She agreed

with Dr. Higa-Rogers’ earlier opinion that additional

questioning would likely retraumatize Amy without providing

meaningful benefit.

After a hearing on March 10, 2020, the circuit court denied

without prejudice the State’s motion to resume Amy’s deposition,

explaining that it was “very concerned about ordering something

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that could cause this young woman further harm” but said it was

“not saying she can never be deposed.”

With respect to the proposed HRCP Rule 35 examination, the

court declined to rule pending a further assessment from its

neutral expert, Dr. Higa-Rogers. The court expressed concerns

regarding the potential adversarial nature of HRCP Rule 35

examinations and sought assurances that any examiner would

exercise independent medical judgment rather than conduct a

purely forensic examination. The circuit court explained that

it would consider allowing a HRCP Rule 35 examination if it

could be conducted safely. The circuit court requested further

information concerning the proposed examination, including Dr.

D’Avanzo’s medical judgment regarding its safety.

Dr. Higa-Rogers issued her supplemental report on July 15,

2020. She opined:

As previously noted in my December 2018 report, given the

severity [Amy]’s intellectual disability, which is

pervasive in nature, she is not expected to show

significant improvements in her ability to comprehend the

legal process or complex questions, and is more likely to

agree when a yes/no question is asked of her and to assent

when a suggestion is made to her. Furthermore, there is

documentation that following prior depositions [Amy]

experienced an increase in her symptoms and required an

increase in her medications to address her nightmares,

startle response and fears. The benefits of pursuing

further questioning/testing do not appear to outweigh the

potential risks to [Amy]’s mental health, limited coping,

and is unlikely to yield significant additional

information.

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Dr. Higa-Rogers opined that if the court nevertheless ordered an

examination, protective measures should be implemented to reduce

the risk of harm.

On August 20, 2020, the circuit court denied the State’s

motion for a HRCP Rule 35 examination, concluding that the

proposed examination presented a significant risk to Amy’s

mental health. The State then sought another trial continuance,

arguing that it lacked essential discovery because it had been

unable to complete Amy’s deposition or conduct a HRCP Rule 35

examination. The circuit court continued the trial and reset it

for March 1, 2021. The State’s deposition of Amy was never

resumed, and the case proceeded to trial.

2. The State’s Pre-Trial References to Apportionment

Before trial, the State made several brief and nonspecific

references to apportionment.

The fifteenth defense in the State’s answer to the first

amended complaint says: “The liability, if any, of the DOE,

Nakagawa and Jones, any of them or collectively, is limited

under HRS §663-10.5.”

The State’s cross-claim against a previous co-defendant

similarly stated, without further elaboration, that

“[a]pportionment of fault is determined pursuant to Section 663-10.5 of the Hawai‘i Revised Statutes.” Neither filing identified

the male students, characterized them as “other tortfeasors,” or

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indicated that the State sought to reduce Plaintiffs’ recovery

by allocating fault to the students. The State also did not

implead any of the male students.

The State later referenced HRS § 663-10.5 in a pre-trial

motion to continue trial. The State argued it was “not jointly

and severally liable with the person(s) responsible” for events

surrounding Amy’s 2011 psychotic break and quoted HRS § 663-10.5. The State asserted that the boys did not cause Amy’s

psychotic break in August 2011, but instead suggested that

something happened at home that had caused the psychotic break.

3. Trial

The case proceeded to a bench trial over the course of

sixty-six days in March through September 2021. The court

identified the principal issues as (1) whether Amy had the

cognitive ability to consent to sex; (2) whether the State

breached duties owed to Amy and Mother while Amy was a special

education student at McKinley; (3) whether the State’s acts and

omissions were a substantial factor in causing harm to

Plaintiffs; (4) what harms were proximately caused by the

State’s conduct; and (5) damages.

The court heard testimony from more than thirty witnesses

and received numerous documents and photographs in evidence.

Although liability and damages were heavily contested at

trial, the State's closing argument consistently maintained that

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the boys were not responsible for Amy's injuries. Throughout

closing argument, the State maintained that the alleged assaults

by the boys either were not proven to have occurred, were

consensual, or otherwise could not be attributed to any

negligence by the DOE.

For instance, with respect to the alleged Ala Moana

incident, the State argued that the evidence did not support

Plaintiffs’ account that Amy left school to go to Ala Moana and

that, even if an incident occurred there, it could not be

attributed to any negligence by the DOE.

Likewise, with respect to the January 4, 2011 incident, the

State argued that the evidence established a consensual

encounter.

The State further argued that Plaintiffs failed to prove

that any additional sexual assaults occurring at school caused

Amy's injuries.

Consistent with these positions and the State’s trial

strategy, the State’s discussion of responsibility for Amy’s

injuries focused on two theories, neither of which sought to

allocate fault to the boys.

First, the State argued that Plaintiffs had overlooked

other events unrelated to the DOE, including Amy’s statements

regarding a “neighbor lady” and her belief that Mother was her

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“lesbian lover,” as alternative explanations for Amy’s mental

health crisis.

Second, with respect to HRS § 663-10.5, the State argued

that any reduction in the DOE's liability should be based on

Mother's role in failing to disclose information to the school.

The State argued:

8 Also, plaintiff did not address Hawai‘i

9 Revised Statute 663-10.5 which unequivocally states

10 that the State can only be responsible for its share of

11 damages.

12 Now, again, it gets into this area of [Mother’s]

13 role. Now, [Mother] had no duty. The DOE -- or no duty

14 under the IDEA, and the Department of Education has no

15 counterclaim against [Mother] for negligence. But she

had

16 a role in what happened to [Amy]. That is undeniable.

17 She had information that for whatever reason, whether

18 it was shame or a personality disorder as described by

19 Dr. D'Avanzo, she didn't -- she chose not to share this

20 information. And even absent a duty, this decision

21 impacted the DOE’s ability to reasonably develop an IEP

22 plan.

23 And whatever damages may exist, which in this

24 case, obviously the State feels there's no duty,

25 breach, or causation, or these damages, but even if the

1 court were to disagree, the State can only be

2 responsible for that portion of its damages, or of the

3 total damages, and plaintiff did not address that.

After trial, the parties submitted proposed findings of

fact and conclusions of law. In two paragraphs of its 127-page

submission, the State proposed the following conclusions of law:

74. The State of Hawai[‘]i, as a government entity, is

liable for no more than the percentage share of damages

attributable to the government entity. HRS § 663-10.5

75. Even assuming, without finding, that Plaintiff had

established any damages to a reasonable degree of

certainty, Plaintiff would still not be entitled to recover

the vast majority of those damages from the State. The

State of Hawai[‘]i, as a government entity, is liable for no

more than the percentage share of damages attributable to

the government entity. Hawai[‘]i Revised Statutes § 663-10.5.

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The State then made clear that its reference to HRS § 663-10.5 was to request an apportionment of liability aimed at

Mother, not the male students. In its proposed conclusion of

law 76, the State argued that “the primary reason that allowed

those alleged events to happen was [Mother’s] willful nondisclosure of information that was necessary for the DOE to form

[sic] provide more appropriate educational and behavioral

supports.”

Thus, the State never requested that the male students be

determined to be “other tortfeasors” to whom liability should be

apportioned under HRS § 663-10.5.

The court then resolved each liability issue in Plaintiffs’

favor. It found that Amy lacked the cognitive ability to

consent to sex, the State breached its duties, and the State’s

conduct was a substantial factor in causing multiple sexual

assaults, mental illness, and emotional distress.

In reaching those findings, the court credited the

testimony of Amy’s treating and retained experts. It rejected

opinions of the State’s expert, Dr. D’Avanzo, as not reliable

and not adequately supported by the record. The circuit court

noted that the relationship between cognitive disability and

sexual victimization was core to this case but that Dr. D’Avanzo

rarely treated children and could not recall having a single

child patient who was cognitively disabled.

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The circuit court also heard extensive evidence concerning

Plaintiffs’ damages. The court credited the testimony of

Plaintiffs’ treating and retained experts and found that Amy

suffered chronic PTSD, obsessive behaviors, psychotic episodes,

and an increased risk of future psychosis requiring lifelong

psychiatric treatment, monitoring, medication, periodic

hospitalization, and one-on-one supervision. Amy’s life-care

plan reflected costs that medical experts opined were

reasonable, necessary, and caused by the sexual assaults and

PTSD. The court further found that Mother suffered major

depressive and panic disorders as a result of the harm to Amy.

In assessing Amy’s general damages, the court acknowledged

that “[i]t is more than difficult to place a monetary value on

sexual assault of an impaired child,” but explained that it had

made a “serious effort to balance all the issues” in determining

reasonable compensation. In assessing Mother’s general damages,

the court similarly observed that, “[g]iven what happened to

[Amy], the court cannot think of anything more distressing to a

parent generally or [Mother] in particular, short of a child’s

death.”

Based on these findings, the circuit court awarded

Plaintiffs a total of $14,167,354.81 in damages: $190,986.78 in

past medical expenses, $7.87 million in future care, and $4

million in general damages to Amy; and $26,368.03 in past

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medical expenses, $80,000.00 in future medical expenses, and $2

million in general damages to Mother.

Then, the court sua sponte addressed apportionment of

liability to the male students. It noted HRS § 663-10.5 says

“where a government entity is determined to be a tortfeasor

along with one or more other tortfeasors, the government entity

shall be liable for no more than that percentage share of the

damages attributable to the government entity[.] The circuit

court said that, here, the “one or more other tortfeasors”

“would be the boys who engaged in sex with [Amy].”

The circuit court noted that the statute had been “briefly

mentioned” in the State’s proposed conclusions and that

Plaintiffs “did not cover the issue in any depth, if at all.”

But it indicated its belief that because the State had raised

the issue, it had to be addressed.

The circuit court said that the interplay between Hawaiʻi

case law, some of which is discussed below, and the statute was

not easy and straightforward under the circumstances of this

case.

The circuit court then determined that the State should be

held liable for only 70% of the damages. It ruled that HRS §

663-10.5 did not require it to assign specific percentages of

liability between various actors, but that it could assign 30%

to all the boys who sexually abused Amy.

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The circuit court also determined, however, that there was

little to no evidence the boys involved knew any particulars

about Amy’s cognitive disabilities, and that with the possible

exception of the boy who assaulted Amy at Ala Moana, to the

boys, Amy was likely a peer special education student. The

court also specifically found that there was little to no

evidence the boys were aware or should have been aware that Amy

lacked ability to consent to sex.

But the circuit court concluded that “all persons who

abused [Amy] sexually during the relevant time period”

constituted “other tortfeasors” under HRS § 663-10.5 and

collectively allocated 30% of the fault to them and 70% to the

State.

The court then reduced Plaintiffs’ $14,167,354.81 damages

award by 30%, or $4,250,206.44, and entered judgment against the

State for $9,917,148.37.

4. Post-Judgment Proceedings

Plaintiffs then filed an HRCP Rule 59(e) motion to amend

the judgment, challenging the circuit court’s apportionment of

30% of the fault to the unidentified persons who sexually abused

Amy. Plaintiffs argued that this apportionment is an

affirmative defense, that the State had never provided notice

that it intended to seek apportionment based on the conduct of

the male students, and that it had not presented or litigated

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such an apportionment claim at trial. Plaintiffs further

contended that the court’s post-trial allocation of fault

deprived them of a meaningful opportunity to address whether

there “should be any apportionment at all” or the “proper

percentage of culpability between tortfeasors.”

In opposition, the State disputed that apportionment under

HRS § 663-10.5 is an affirmative defense. The State argued that

the statute “operates not as an affirmative defense but rather a

limitation on the liability of governmental entities as a

tortfeasor” and asserted that governmental entities “cannot be

held liable for more than [their] fair share of damages.” The

State also argued that HRS § 663-10.5 does not require it to

file claims against other tortfeasors for an apportionment of

liability to occur.

Plaintiffs filed a reply with no new arguments. The

circuit court denied the motion to amend.

C. Appeals and Transfer

Plaintiffs filed a notice of appeal, and the State filed a

notice of cross-appeal. This court then granted Plaintiffs’

application for transfer and entered a notice of no oral

argument.

D. Questions on Appeal

1. Plaintiffs’ Appeal

Plaintiffs raise four points of error on appeal:

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1. The Court Erred by Apportioning Damages to Alleged

Tortfeasors Not Identified by the State, Violating

Plaintiffs' Due Process Rights.

2. The Court Erred in Determining that the Male Students

Were Tortfeasors as There Was Insufficient Evidence in the

Record of Their Tortfeasor Status or Degree of Fault.

3. The Court Erroneously Shifted the Burden of Proof on

Apportionment from the State to the Plaintiffs.

4. The Court Erred in Denying Plaintiffs' Motion to Amend

the Judgment to Reverse its Apportionment Decision.

2. The State’s Cross-Appeal

The State raises three points of error on cross-appeal:

1. The trial court abused its discretion by denying the

State’s request to conduct a Rule 35 examination of [Amy]

2. The trial court abused its discretion by precluding the

State from completing [Amy]’s deposition.

3. The trial court’s damages award was grossly excessive.

For the reasons discussed below, we agree with Plaintiffs’

points of error and disagree with the State’s points of error.

III. Standards of Review

A. Findings of Fact

HRCP Rule 52(a) provides that, in a bench trial,

“[f]indings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of

the trial court to judge of the credibility of the witnesses.”

HRCP Rule 52(a). A finding of fact is clearly erroneous when

“(1) the record lacks substantial evidence to support the

finding, or (2) despite substantial evidence in support of the

finding, the appellate court is nonetheless left with a definite

and firm conviction that a mistake has been made.” Klink v.

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State, 113 Hawai‘i 332, 351, 152 P.3d 504, 523 (2007).

“‘Substantial evidence’ . . . is credible evidence which is of

sufficient quality and probative value to enable a person of

reasonable caution to support a conclusion.” Id. (cleaned up).

B. Conclusions of Law

“This court ‘may freely review conclusions of law and the

applicable standard of review is the right/wrong test.’” State

v. Levi, 102 Hawai‘i 282, 285, 75 P.3d 1173, 1176 (2003). As

such, a conclusion of law is not binding upon an appellate court

and such findings can be “freely review[ed]” for its

correctness. Dan v. State, 76 Hawaiʻi 423, 425, 879 P.2d 528,

530 (1994). Questions of statutory interpretation and

constitutional law are likewise questions of law reviewed de

novo. Levi, 102 Hawai‘i at 285, 75 P.3d at 1176.

C. Statutory Interpretation

“The fundamental starting point for statutory

interpretation is the language of the statute itself.” Peterson

v. Haw. Elec. Light Co., 85 Hawai‘i 322, 327, 944 P.2d 1265, 1270

(1997), superseded on other grounds by HRS § 269-15.5 (Supp.

1999) (cleaned up). “[W]here the statutory language is plain

and unambiguous, the court’s sole duty is to give effect to its

plain and obvious meaning.” Id. (cleaned up). “[I]mplicit in

the task of statutory construction is the court’s foremost

obligation to ascertain and give effect to the intention of the

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legislature, which is to be obtained primarily from the language

contained in the statute itself.” Id. (citation omitted).

“[W]hen there is doubt, doubleness of meaning, or

indistinctiveness or uncertainty of an expression used in a

statute, an ambiguity exists.” 85 Hawai‘i 322 at 327-28, 944

P.2d at 1270-71 (cleaned up).

When a statute is ambiguous, “the meaning of the ambiguous

words may be sought by examining the context, with which the

ambiguous words, phrases, and sentences may be compared, in

order to ascertain their true meaning.” Citizens Against

Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawai‘i 184, 194, 159

P.3d 143, 153 (2007) (quoting HRS § 1-15(1) (1993)). Courts may

also “resort to extrinsic aids in determining legislative

intent, such as legislative history, or the reason and spirit of

the law.” Id.

D. Discovery Rulings

The extent to which discovery is permitted under Rule 26

(as well as under Rules 33 and 34) is subject to considerable

latitude and discretion. Appeal of Goodfader, 45 Haw. 317, 335,

367 P.2d 472, 483 (1961). Accordingly, “the trial court may not

be reversed by an appellate court unless the trial court has

clearly exceeded the bounds of reason or disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant.” Kealoha v. Cnty. of Haw., 74 Haw. 308, 318,

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844 P.2d 670, 675 (1993) (cleaned up). Under that standard,

different trial judges may, on the same facts, arrive at

opposite rulings “without any of them being reversible on

appeal.” State v. Rabe, 5 Haw. App. 251, 260-61, 687 P.2d 554,

561 (App. 1984).

To the extent this issue requires review of the circuit

court’s factual findings regarding Plaintiffs’ medical condition

and ability to participate in discovery, those findings are

“reviewed on appeal under the clearly erroneous standard.”

Birano v. State, 143 Hawai‘i 163, 181, 426 P.3d 387, 405 (2018)

(cleaned up).

E. Damages Awards

Hawai‘i law has long recognized that the assessment of

damages lies primarily within the province of the factfinder,

and appellate review is correspondingly limited. See Kang v.

Harrington, 59 Haw. 652, 663, 587 P.2d 285, 292 (1978). Most

recently, this court reaffirmed these longstanding principles in

Kekona v. Bornemann and explained:

On appeal, the courts analyze whether the damages awarded

by the jury were palpably not supported by the evidence, or

so excessive and outrageous when considered with the

circumstances of the case as to demonstrate that the jury

in assessing damages acted against rules of law or suffered

their passions or prejudices to mislead them.

135 Hawaiʻi 254, 257, 349 P.3d 361, 364 (2015).

This court has further explained that “[a] similar test is

used in a jury-waived case,” where “the inquiry on review is

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limited to whether, ‘upon the evidence adduced, reasonable

[people] could have come to the same conclusion as the jury, or

the trial court in a jury-waived case.’” Kang, 59 Haw. at 663,

587 P.2d at 292 (cleaned up).

IV. Discussion

A. Plaintiffs’ Appeal

1. The circuit court erred by apportioning liability to

tortfeasors not identified or pursued by the State and

violated Plaintiffs’ due process rights.

In their first point of error on appeal, Plaintiffs allege

that the circuit court erred by apportioning damages to alleged

tortfeasors not identified by the state, violating their due

process rights. For the reasons that follow, we agree.

a. Hawai‘i law generally only permits apportionment

of liability to nonparties in limited

circumstances.

Here, the circuit court apportioned 30% of the fault to the

male students who abused Amy. The male students were never

named as parties.

Preliminarily, the State argues that this court “expressly

held in Cummings v. State that the plain language of HRS § 663-10.5 does not require the State to file a claim against [another

tortfeasor] to have liability apportioned to them[,]” citing to

a December 29, 2006 summary disposition order of this court.

Cummings v. State, No. 26975, 2006 WL 3834309 (SDO) (Haw. Dec.

29, 2006). But Hawaiʻi Rules of Appellate Procedure (“HRAP”),

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Rule 35(c)(1) explicitly provides that, unless certain

exceptions apply, “[a] memorandum opinion or unpublished

dispositional order filed before July 1, 2008 shall not be cited

in any other action or proceeding[.]” The exceptions in HRCP

Rule 35(c)(1) are not applicable here, and thus, the State

improperly cites to an uncitable unpublished dispositional

order. We assume this was an unintentional error but note that

it is highly improper to cite uncitable dispositions.

Turning to governing law, HRS § 663-10.5 was enacted to

prevent government entities from being held jointly and

severally liable for damages disproportionate to their

responsibility. See Conf. Comm. Rep. No. 48, in 1994 House

Journal, at 803; Conf. Comm. Rep. No. 48, in 1994 Senate

Journal, at 718 (“The government entity shall be liable for no

more than that percentage share of the damages attributable to

the government entity.”). The conference committee further

explained that the measure was necessary to promote “fairness

and equity for government entities” that, because of their

perceived “deep pockets,” might otherwise be required to pay

more than their fair share when determined to be joint

tortfeasors. Id.

HRS § 663-10.5 provides, in relevant part, that it is only

if “a government entity is determined to be a tortfeasor along

with one or more ‘other tortfeasors’,” then “the government

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entity shall be liable for no more than that percentage share of

the damages attributable to [it][.]” The circuit court

determined sua sponte that the male students were such “other

tortfeasors.”

With respect to whether the male students are “other

tortfeasors” under HRS § 663-10.5, Black’s Law Dictionary (12th

Ed. 2024) defines “tortfeasor” as “[s]omeone who commits a tort;

a wrongdoer.” Tortfeasor, Black’s Law Dictionary (12th Ed.

2024). It further generally defines “tort” as “[a] civil wrong;

other than breach of contract, for which a remedy may be

obtained, usu. in the form of damages; a breach of a duty that

the law imposes on persons who stand in a particular relation to

one another.” Tort, Black’s Law Dictionary (12th Ed. 2024).

If they breached a duty to Amy, the male students would

seemingly qualify as “other tortfeasors.” But, as argued by the

Plaintiffs, here, the circuit court determined them to be “other

tortfeasors” without any notice to them or to the Plaintiffs.

We therefore address whether this was permissible.

We note that cases construing contribution among joint

tortfeasors under the Uniform Contribution Among Tortfeasors

Act, codified at HRS §§ 663-11 through – 17 (“UCATA”), do not

control this analysis. HRS § 663-10.5 explicitly provides that

the statute controls notwithstanding any other law to the

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contrary, including UCATA. But UCATA cases can still provide

some guidance.

Gump v. Wal-Mart Stores, Inc., 93 Hawai‘i 417, 5 P.3d 407

(2000), addressed whether an identified nonparty joint

tortfeasor can be included on a special verdict form. There,

the plaintiff sued both Wal-Mart and McDonald's after slipping

on a French fry inside a Wal-Mart store, but later settled with

and dismissed McDonald's. 93 Hawaiʻi at 419, 5 P.3d at 409.

Wal-Mart did not file a cross-claim against McDonald's but

sought to have McDonald's included on the special verdict form.

Id. This court held that non-parties may be considered joint

tortfeasors under UCATA. Id. This court further held that

nonparties may, “in the trial court’s sound discretion,” be

included on a special verdict form “under appropriate

circumstances.” Id.

But this court concluded that it was inappropriate to

include McDonald’s on the special verdict form under the

circumstances of that case. 93 Hawai‘i at 423, 5 P.3d at 413.

This court noted that Wal-Mart chose not to file a cross-claim

against McDonald’s. Id. Although this court acknowledged that

“there are tactical reasons to choose not to file a crossclaim,” it explained that “one of the risks that accompanies

such a decision is the risk that McDonald’s would settle, which

could prevent Wal-Mart from establishing the pro rata share of

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fault between the two.” Id. This concern is not at issue here

because HRS § 663-10.5 does not allow joint liability against

governmental entities. But this court did note the relevance of

Wal-Mart’s decision not to file a cross-claim against

McDonald’s.

Then in Moyle v. Y & Y Hyup Shin Corp., 118 Hawai‘i 385, 191

P.3d 1062 (2008), this court clarified Gump’s statement that a

trial court has “sound discretion” to include a nonparty on a

special verdict form under “appropriate circumstances.” 118

Hawai‘i at 397-98, 191 P.3d at 1074-75. In Moyle, the defendants

sought to allocate fault to an identified nonparty who had

assaulted the plaintiff. 118 Hawaiʻi at 390, 191 P.3d at 1067.

Four months before trial, the defendants moved to implead the

nonparty, but the circuit court denied the motion as untimely.

118 Hawaiʻi at 399, 191 P.3d at 1076. Nevertheless, the circuit

court included the nonparty on the special verdict form, and the

jury allocated 95% of the fault to him. 118 Hawaiʻi at 390, 191

P.3d at 1067.

This court clarified that Gump did not create unfettered

discretion to place nonparties on a special verdict form.

Moyle, 118 Hawaiʻi at 398, 191 P.3d at 1075. Rather, this court

indicated that Gump’s reference to “appropriate circumstances”

under which nonparties could be included on special verdict

forms was limited to narrow situations such as where a nonparty

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was, “(1) dismissed because their participation would destroy

jurisdiction, (2) not named because of a bankruptcy stay that

was effective throughout the course of the proceedings, or (3)

released from the case through settlement, but included on the

special verdict pursuant to terms of the release.” Moyle, 118

Hawaiʻi at 398, 191 P.3d at 1075 (citations omitted).

Moyle explained:

Although a trial court has “discretion” to include, or to

decline to include, a non-party on a special verdict form,

it does not, as a matter of law, have the authority to

include a non-party who has not been brought into the case

by pleading pursuant to HRS §§ 663-12 and 663-17(c).

118 Hawaiʻi at 398, 191 P.3d at 1075.

Further, this court said that “exclusion is mandated when a

party fails to protect its rights.” Id. Because the defendants

waited until four months before trial to seek to implead the

nonparty, the nonparty “could not have been included on the

special verdict form as a matter of law.” 118 Hawaiʻi at 399,

191 P.3d at 1076. This court emphasized that the discretion

recognized in Gump is confined to narrow circumstances and does

not permit defendants to assert a contribution claim at the

“eleventh hour” after choosing not to pursue contribution during

the preceding two years of litigation. Id.

Moyle also distinguished between presenting evidence of a

nonparty’s conduct and allocating fault to that nonparty. 118

Hawaiʻi at 402, 191 P.3d at 1079. It explained that evidence of

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the nonparty's conduct remained admissible where relevant to the

defendants’ liability, but “it does not follow that the nonparty

should be included on the special verdict.” Id.2

Again, HRS § 663-10.5 specifically provides that the

language of that statute governs notwithstanding other laws,

including UCATA, HRS §§ 663-11 through -17. And Gump and Moyle

are UCATA cases involving different considerations from joint

and several liability issues. HRS § 663-10.5 explicitly

eliminates joint and several liability for government entities

in the circumstances of this case. So UCATA cases arguably do

not control. And the language of HRS § 663-10.5 does not appear

to preclude an allocation of fault to nonparties.

But Gump and Moyle are not only based on the language of

the UCATA statutes and other principles of joint and several

liability. Their holdings also reflect principles of

fundamental fairness. They say that a defendant cannot seek

2 This court applied these principles in Doe Parents No. 1 v. State, Dep’t of Educ., 100 Hawaiʻi 34, 73-74, 58 P.3d 545, 584-85 (2002). After the plaintiffs settled with and dismissed a defendant with prejudice, the Department argued that the dismissed defendant nevertheless remained an “other tortfeasor” whose fault should reduce its liability under HRS chapter 663. Id. This court rejected that argument. Id. It reiterated that “[a] party is liable within the meaning of HRS § 663-11 if the injured person could have recovered damages in a direct action against that party, had the injured person chosen to pursue such an action.” Id. Because the dismissed defendant could no longer be sued, he was “not an ‘other tortfeasor’ within the meaning of HRS § 663-11,” and his fault could not be considered in reducing the remaining defendant’s liability. Id.

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allocation of fault at the “eleventh hour.” In other words,

they are also fundamentally grounded in due process principles.

b. Due process requires notice and a meaningful

opportunity to be heard before a plaintiff’s

recovery may be reduced based on the percentage

of liability of nonparties.

Article I, Section 5 of the Hawaiʻi Constitution provides

that “[n]o person shall be deprived of life, liberty or property

without due process of law.” Haw. Const. Art. I, § 5.

Procedural due process “protect[s] individuals against the

State’s arbitrary deprivation of life, liberty, or property.”

Brown v. Thompson, 91 Hawaiʻi 1, 11, 979 P.2d 586, 596 (1999).

Plaintiffs contend the circuit court reduced their damages

award in violation of their due process rights “without notice

or an opportunity to be heard.”

We agree.

i. Plaintiffs have a property interest.

In a due process analysis, Hawai‘i courts first ask whether

the particular interest which the claimant seeks to protect is

“‘property’ within the meaning of the due process clauses.” 91

Hawaiʻi at 10, 979 P.2d at 595 (cleaned up). “[A] benefit which

one is entitled to receive by statute constitutes a

constitutionally-protected property interest.” 91 Hawaiʻi at 10-11, 979 P.2d at 595-96 (cleaned up). The United States Supreme

Court has recognized that a state-law cause of action is a

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protected property interest for purposes of the federal Due

Process Clause. See Logan v. Zimmerman Brush Co., 455 U.S. 422,

428 (1982) (citing Martinez v. California, 444 U.S. 277, 281-82

(1980) (observing that a state tort claim is a “species of

‘property’ protected by the Due Process Clause”)).

We hold that Plaintiffs also have a due process property

interest under Article I, Section 5 in their cause of action as

well as in their damages award. The circuit court determined

that Plaintiffs were entitled to $14,167,354.81 in damages. The

circuit court then reduced that recovery by 30%, depriving

Plaintiffs of $4,250,206.44. Because that ruling extinguished a

portion of Plaintiffs’ adjudicated recovery, it implicated a

protected property interest that could not be taken without

constitutionally adequate procedures.

ii. Hawai‘i’s due process clause requires

procedures that are fundamentally fair

before a protected property interest may be

deprived.

Because Plaintiffs possess a protected property interest in

their damages award, this court must determine what procedures

were constitutionally “required to protect it.” Brown, 91

Hawai‘i at 10, 979 P.2d at 595. Procedural due process is not “a

fixed concept requiring a specific procedural course in every

situation.” Id. (cleaned up). Rather, “due process is flexible

and calls for such procedural protections as the particular

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situation demands.” Id. (cleaned up). Nevertheless, “[t]he

basic elements of procedural due process of law require notice

and an opportunity to be heard at a meaningful time and in a

meaningful manner.” Id. (cleaned up).

The legislative history of HRS § 663-10.5 said that the

measure was necessary to promote “fairness and equity for

government entities” that, because of their perceived “deep

pockets,” might otherwise be required to pay more than their

fair share when determined to be joint tortfeasors. It can be

inferred that the Legislature sought due process for

governmental entities. But, as noted, Plaintiffs are also

entitled to due process.

To determine the specific procedures required to satisfy

due process, Hawaiʻi applies a balancing of several factors

including (1) the private interest that will be affected; (2)

the risk of an erroneous deprivation of that interest through

the procedures actually used, and the probable value, if any, of

additional or alternative procedural safeguards; and (3) the

governmental interest, including the burden that additional

procedural safeguards would entail. Id.

First, the private interest affected was significant: the

$4.25 million reduction in Plaintiffs’ damages award.

Second, there was a significant risk of an erroneous

deprivation of that interest through the procedure used, which

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was to not require any notice or opportunity to be heard at all.

The procedure used would have resulted in an absolute

deprivation of the damages awarded, but for this judicial

review. But due process requires appropriate process at the

trial or hearing level.

The probable value of additional procedural safeguards is

substantial. Timely notice that the State intended to seek

nonparty apportionment would have permitted Plaintiffs to

investigate the proposed nonparty tortfeasors, conduct

meaningful discovery, and, where appropriate, seek joinder so

that liability, apportionment, and damages could be resolved in

a single proceeding. Requiring identification of the proposed

nonparties with sufficient particularity would also have enabled

the parties and the circuit court to determine whether each

individual qualified as an “other tortfeasor” under HRS § 663-10.5 before Plaintiffs’ recovery was reduced.

Third, the governmental interest likewise favors additional

procedural safeguards. HRS § 663-10.5 reflects the

legislature’s determination that governmental entities generally

should be liable only for their proportionate share of fault.

Plaintiffs do not challenge that legislative objective. Rather,

Plaintiffs seek procedures that ensure fault is allocated

accurately before a plaintiff’s recovery is reduced. Not

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requiring such procedures diminishes public confidence in the

justice system, which does not serve the governmental interest.

In addition, requiring appropriate procedures imposes a

burden appropriate to the circumstances. Timely notice,

identification of the proposed nonparty tortfeasors, allocation

of the burden of proof to the party seeking apportionment, and

findings supporting the allocation call for orderly litigation

of issues underlying any request for nonparty apportionment.

Indeed, such timely notice and appropriate litigation measures

might even reduce the overall burden on the parties and the

courts by permitting joinder of the proposed tortfeasors and

resolution of all issues of liability and damages in a single

proceeding at the trial level, and not necessitate a lengthy

appeals process. Accordingly, the governmental interest does

not outweigh Plaintiffs’ substantial property interest or the

significant risk of erroneous deprivation.

In summary, in balancing the substantial property interests

at stake, the significant risk of erroneous deprivation created

by the procedures employed, the considerable value of additional

safeguards, and the minimal burden those safeguards impose upon

the State, we hold that due process requires, at a minimum, the

following procedural protections before a plaintiff’s recovery

can be reduced through the allocation of fault to nonparties

under HRS § 663-10.5:

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1. Timely notice, through the pleadings or a prompt

amendment thereto, that a party intends to seek allocation

of fault to an identified nonparty, sufficiently in advance

of trial to permit meaningful discovery and, where

appropriate, joinder of the alleged tortfeasor;

2. Identification of each proposed nonparty tortfeasor with

sufficient particularity to permit the parties and the

court to determine whether the proposed nonparty is legally

liable to the plaintiff and otherwise qualifies as an

“other tortfeasor” under HRS § 663-10.5;

3. Placement of the burden on the party seeking

apportionment (as further discussed in Section IV.A.3

below) to establish the legal and factual basis for

allocating fault to each proposed nonparty, including that

the person qualifies as an “other tortfeasor” under HRS §

663-10.5, and the percentage of fault attributable to that

person; and

4. Findings by the trial court establishing that each

identified nonparty qualifies as an “other tortfeasor”

under HRS § 663-10.5 and the percentage of fault

attributable to that nonparty before the plaintiff’s

recovery is reduced.

These procedures would not eliminate nonparty apportionment

under HRS § 663-10.5. They would simply ensure that a

plaintiff’s adjudicated recovery is reduced only after the legal

and factual basis for doing so has been meaningfully litigated

and established.

Here, those safeguards were absent. Accordingly, the

procedures employed here were constitutionally inadequate.

Therefore, the circuit court’s apportionment must be vacated.

We also specifically note that the reputation of nonparties

could be affected by a finding that they are “other

tortfeasors.” Therefore, although we are not requiring

impleader of nonparties at this time for a finding of “other

tortfeasor” liability under HRS § 663-10.5, courts should

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consider whether, under the circumstances of a particular case,

impleader of nonparties should be required. Although, without

an opportunity to litigate, there could be no res judicata

effect on a nonparty based on an “other tortfeasor”

determination, nonparties also have a due process right to their

reputational interests.

2. The circuit court erred in determining that the male

students were tortfeasors because there was

insufficient evidence of their tortfeasor status or

degree of fault.

In their second point of error on appeal, Plaintiffs allege

the circuit court erred by determining that the male students

were tortfeasors because there was insufficient evidence in the

record of their tortfeasor status or degree of fault. We agree.

HRS § 663-10.5 permits allocation of fault only to those

who qualify as “other tortfeasors.” A person is “liable” as a

tortfeasor when “the injured person could have recovered damages

in a direct action against that party, had the injured person

chosen to pursue such an action.” Doe Parents No. 1 v. State,

Dep’t of Educ., 100 Hawai‘i 34, 73, 58 P.3d 545, 584 (2002).

In Doe Parents, this court held a dismissed defendant could

not be treated as an “other tortfeasor” because his dismissal

with prejudice meant the plaintiffs could no longer maintain an

action against him. 100 Hawaiʻi at 73-74, 58 P.3d at 584-85. As

such, whether another person contributed to the plaintiff’s

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injury and whether that person qualifies as an “other

tortfeasor” are distinct inquiries; the latter requires that the

person be legally subject to liability to the plaintiff.

Here, the circuit court did not determine whether any

particular male student was legally liable to Plaintiffs.

Instead, it stated that “[t]here were a number of different

sexual abuses at different points of time by different

individuals,” but concluded that HRS § 663-10.5 did not require

it “to assign specific percentages of liability between all the

various actors.” It therefore attributed 30% of the fault

collectively to “all the other tortfeasors combined (meaning all

persons who abused [Amy] sexually during the relevant time

period).”

But the circuit court also noted that there was little to

no evidence the boys involved knew any particulars about Amy’s

cognitive disabilities. The circuit court also found that with

the possible exception of the boy who assaulted Amy at Ala

Moana, Amy was likely a peer special education student to the

boys. The court further found that there was little to no

evidence the boys were aware or should have been aware that Amy

lacked ability to consent to sex. These findings indicate there

was insufficient evidence that the male students qualified as

“other tortfeasors.”

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In addition, the circuit court concluded that “all persons

who abused [Amy] sexually during the relevant time period”

constituted “other tortfeasors” under HRS § 663-10.5 and

collectively allocated 30% of the fault to them and 70% to the

State. That collective finding was also insufficient.

The record contained evidence of different conduct by

different male students at different times. The circuit court

did not determine that any specific male student committed an

actionable tort against Amy or was someone from whom Plaintiffs

could have recovered damages in a direct action. Without those

determinations, there was insufficient evidence that any of the

male students were “other tortfeasors” within the meaning of HRS

§ 663-10.5.

3. The circuit court erroneously shifted the burden of

proof on apportionment from the State to Plaintiffs.

In their third point of error, Plaintiffs allege that the

circuit court erroneously shifted the burden of proof on

apportionment from the State to them. For the following

reasons, we also agree with this point of error.

a. Apportionment of liability to a non-party “other

tortfeasor” under HRS § 663-10.5 is an

affirmative defense.

Preliminarily, Plaintiffs assert that HRS § 663-10.5

creates an affirmative defense. The State disagrees. This

court has not addressed whether or not HRS § 663-10.5 is an

affirmative defense for a government entity asserting “other

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tortfeasor” liability. This is a question affecting pleading

and proof burdens.

HRCP Rule 8(c) requires that “[i]n pleading to a preceding

pleading, a party shall set forth affirmatively” numerous

enumerated defenses, including contributory negligence, release,

waiver, and the statute of limitations, “and any other matter

constituting an avoidance or affirmative defense.” The

affirmative defenses listed in the rule are not exclusive. Rule

8(c) expressly provides that “‘any other matters constituting an

avoidance or affirmative defense’ must also be pleaded

affirmatively.” Touche Ross, Ltd. v. Filipek, 7 Haw. App. 473,

487 778 P.2d 721, 730 (App. 1989).

Generally, an affirmative defense is one that defeats or

bars an otherwise valid claim. Bhakta v. Cnty. of Maui, 109

Hawai‘i 198, 211, 124 P.3d 943, 956 (2005). But affirmative

defenses are not limited to defenses that completely bar

recovery.

For example, HRCP Rule 8(c) identifies “payment” as an

affirmative defense. Black’s Law Dictionary defines “payment”

as “[p]erformance of an obligation by the delivery of money or

some other valuable thing accepted in partial or full discharge

of the obligation.” Payment, Black’s Law Dictionary (12th ed.

2024). So partial payment is an affirmative defense.

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Likewise, HRCP Rule 8(c) identifies contributory negligence

as an affirmative defense. Under Hawai‘i law, contributory

negligence is no longer a complete bar to recovery and has been

replaced by comparative negligence, which reduces a plaintiff’s

recovery when the plaintiff’s negligence is not greater than the

combined negligence of the defendants. HRS § 663-31(c). Both

contributory and comparative negligence are affirmative

defenses.

The State contends that HRS § 663-10.5 is not an

affirmative defense and is merely a limitation on liability. It

cites no authority for that proposition and does not explain why

HRS § 663-10.5 should be treated differently from the numerous

affirmative defenses that limit or reduce liability.

Also, the State appears to have recognized HRS § 663-10.5

is an affirmative defense because it pled it as such. The

fifteenth defense in the State’s answer to the first amended

complaint says: “The liability, if any, of the DOE, Nakagawa and

Jones, any of them or collectively, is limited under HRS §663-10.5.” The fourteenth defense preceding this defense alleges

that Plaintiffs’ claims are barred by the equitable doctrines of

estoppel, collateral estoppel, res judicata, laches, and unclean

hands, which are affirmative defenses.

Other jurisdictions addressing nonparty apportionment

generally recognize that reducing a defendant’s liability by

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attributing fault to a nonparty constitutes an affirmative

defense. Courts have therefore required defendants to provide

timely notice and bear the burden of proving the nonparty’s

fault.

For example, in Hardin v. Manitowoc-Forsythe Corp., 691

F.2d 449, 453 (10th Cir. 1982), the Tenth Circuit addressed

whether fault could be allocated to “phantom parties” under

Kansas law. In discussing the procedural effect of the

defendants’ failure to plead phantom-party fault, the court

explained that “[t]he policy behind Rule 8(c) is to put

plaintiff on notice well in advance of trial that defendant

intends to present a defense in the nature of an avoidance.”

691 F.2d at 458. It then characterized phantom-party fault as

such a defense, stating that “[t]he defense that a phantom party

contributed to the plaintiff’s injuries is in the nature of an

avoidance and normally would be required to be pleaded

affirmatively in the answer.” Id.

Likewise, in McGraw v. Sanders Co. Plumbing & Heating,

Inc., 667 P.2d 289, 295-96 (Kan. 1983), the Kansas Supreme Court

held that a defendant seeking to reduce its percentage of fault

by attributing fault to another occupies the same burden as the

defendant who claims the plaintiff was partially or entirely at

fault. 667 P.2d at 295. The court reasoned that the defense

that a “‘phantom party’ contributed to the plaintiff’s injuries

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is arguably a ‘matter constituting an avoidance’” and therefore

places the defendant “in the same position as if he were

claiming the plaintiff was negligent.” Id.

The Florida Supreme Court adopted the same approach in Nash

v. Wells Fargo Guard Serv.’s, Inc., 678 So. 2d 1262, 1264-65

(Fla. 1996), holding that “the defendant must plead as an

affirmative defense the negligence of the nonparty and

specifically identify the nonparty.” The court explained that

pretrial notice is essential because the assertion that

noneconomic damages should be apportioned against a nonparty

“may affect both the presentation of the case and the trial

court’s rulings on evidentiary issues.” 678 So. 2d at 1264.

Thus, we hold that where “a government entity is determined

to be a tortfeasor” but seeks a determination that it is “liable

for no more than that percentage share of the damages

attributable to the government entity” due to the alleged

liability of a nonparty “other tortfeasor,” it is asserting an

affirmative defense.

b. A defendant asserting an affirmative defense

bears the burden of pleading and proving the

defense.

Generally, the defendant has the burden of proof on all

affirmative defenses, which includes the burden of proving facts

which are essential to the asserted defense. State ex rel.

Shikada v. Bristol-Myers Squibb Co., 152 Hawai‘i 418, 526 P.3d

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395 (2023) (accord and satisfaction is an affirmative defense,

and the party asserting it bears the burden of proof). And,

generally, a plaintiff is not required to disprove affirmative

defenses. U.S. Bank Nat’l Ass’n v. Castro, 131 Hawaiʻi 28, 41,

313 P.3d 717, 730 (2013).

Courts addressing nonparty apportionment have applied the

same principle. In McGraw, the Kansas Supreme Court explained

that a defendant seeking to reduce its percentage of fault by

attributing fault to another “would have the burden to plead and

prove his claims,” relying on the general rule that “the burden

of proof on any point is upon the party asserting it.” 667 P.2d

at 295. It ultimately held that “a defendant who seeks to

reduce his percentage of fault by comparing the fault of a party

joined pursuant to K.S.A. 60-258a(c) has the burden of proving

the joined party's fault by a preponderance of the evidence.”

Id.

Similarly, in Nash, the Florida Supreme Court held that

“the defendant has the burden of presenting at trial that the

nonparty’s fault contributed to the accident” in order to

include the nonparty on the verdict form. 678 So. 2d at 1265.

This court’s approach to liability apportionment is

consistent with HRS § 663-10.5 being an affirmative defense. In

Collins v. Greenstein, 61 Haw. 26, 41 n.10, 595 P.2d 275, 284

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n.10 (1979), this court quoted the Restatement (Second) of Torts

§ 433B(2), which states:

Where the tortious conduct of two or more actors has

combined to bring about harm to the plaintiff, and one or

more of the actors seeks to limit his liability on the

ground that the harm is capable of apportionment among

them, the burden of proof as to the apportionment is upon

each such actor.

Although this statement appeared in a footnote, it reflects

the same allocation of the burden applicable to affirmative

defenses generally: when an actor seeks to limit their own

liability on the ground that the plaintiff’s harm is capable of

apportionment, that actor bears the burden of proving the

apportionment. Thus, the burden is on the party seeking to

reduce their liability through apportionment, rather than

requiring the plaintiff to disprove apportionment.

Here, the State sought to limit and reduce its liability.

The circuit court determined that the State was liable for

Plaintiffs’ damages, but reduced the State’s share of liability

by 30% based on the purported fault of other tortfeasors.

Because the State sought to limit its liability through

apportionment, it bore the burden of properly pleading and

proving the facts necessary to support that reduction.

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c. The State failed to carry its burden and waived

any apportionment to the male students.

The State generally pled HRS § 663-10.5 as an affirmative

defense. But it never specifically asserted that it was seeking

to allocate fault to the boys under that statute.

The circuit court’s apportionment under the circumstances

of this case effectively shifted the State’s burden to

Plaintiffs. The State never identified the male students as the

alleged “other tortfeasors” upon whom its affirmative defense

depended. It was not Plaintiffs’ burden to prove that

unidentified nonparties were not tortfeasors.

Nor did the State make any attempt to establish a

percentage of fault attributable to the male students. The

State did not identify the students whose fault it sought to

allocate, present evidence directed toward establishing their

status as “other tortfeasors” (or their respective

responsibilities), or propose any percentage of fault

attributable to them in its closing argument or proposed

findings.

By concluding that “all persons who abused [Amy] sexually

during the relevant time period” were “other tortfeasors” and

collectively allocating 30% of the fault to them, the circuit

court relieved the State of its burden to establish both the

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tortfeasor status of the persons upon whom its affirmative

defense depended, and the degree of fault attributable to them.

Because the State did not attempt to carry its burden, it

waived any argument that its liability should be reduced based

on the male students’ alleged fault. Therefore, the circuit

court erred in apportioning 30% of the fault to the male

students.

Properly placing the burden on the party seeking

apportionment to establish the legal and factual basis for

allocating fault to a nonparty ensures that a plaintiff’s

recovery is not diminished in violation of due process, as

occurred here.

4. The circuit court erred in denying Plaintiffs’ motion

to amend the judgment.

Plaintiffs’ fourth point of error challenges the circuit

court’s denial of their HRCP Rule 59(e) motion to amend the

judgment. In that motion, Plaintiffs asked the circuit court to

reverse its apportionment of 30% of the fault to the male

students and to amend the judgment accordingly.

For the reasons discussed above, Plaintiffs’ motion should

have been granted. The State did not assert that the male

students were “other tortfeasors” under HRS § 663-10.5, did not

meet its burden of establishing their tortfeasor status or

degree of fault, and the circuit court could not shift that

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burden to Plaintiffs and sua sponte apportion 30% of the fault

to the students. The resulting judgment therefore improperly

reduced Plaintiffs’ damages by 30%, or $4,250,206.44.

Accordingly, the circuit court erred in denying Plaintiffs’

motion to amend the judgment.

B. The State’s Cross-Appeal

The State raises three points of error on cross-appeal.

The first two concern pretrial orders that denied a HRCP Rule 35

examination and a further deposition of Amy, which we address in

reverse order. The third alleges the circuit court’s damages

award was grossly excessive. None of the points of error have

merit.

1. The circuit court did not abuse its discretion

by denying a further deposition of Amy.

The State alleges that the circuit court abused its

discretion by denying its request to complete Amy’s deposition.

Discovery rulings are reviewed for abuse of discretion.

Kealoha, 74 Haw. at 319, 844 P.2d at 676. Under this standard,

we address whether the circuit court clearly exceeded the bounds

of reason or disregarded rules or principles of law to the

substantial detriment of the State. Id. In general, this court

has recognized that discovery rules reflect a policy favoring

broad disclosure of relevant information and that “the

deposition-discovery rules are to be accorded a broad and

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liberal treatment.” Appeal of Goodfader, 45 Haw. at 336, 367

P.2d at 472 (citation omitted). HRCP Rule 30 generally permits

parties to obtain testimony through oral depositions. HRCP Rule

30. HRCP Rule 30 provides that “[a]fter commencement of the

action, any party may take the testimony of any person,

including a party, by deposition upon oral examination.”

That right, however, is not absolute or without parameters.

“[D]iscovery, like all matters of procedure, has ultimate and

necessary boundaries.” Appeal of Goodfader, 45 Haw. at 336, 367

P.2d at 483 (quoting Hickman v. Taylor, 329 U.S. 495, 507

(1947)). For example, HRCP Rule 26 generally allows courts to

limit discovery where the discovery sought is “unreasonably

cumulative or duplicative, or is obtainable from some other

source that is more convenient, less burdensome, or less

expensive”; where the requesting party has already had ample

opportunity to obtain the information sought, or where “the

burden or expense of the proposed discovery outweighs its likely

benefit.” HRCP Rule 26 (eff. 2022).

HRCP Rule 26 also authorizes courts to issue protective

orders to “protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.”

Further, HRCP Rule 30 specifically allows for oral depositions

to be limited “when it can be shown that the examination is

being conducted in bad faith or in such a manner as to annoy,

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embarrass or oppress the person subject to the inquiry.” HRCP

Rule 30(d).

This court has repeatedly recognized that trial courts have

considerable latitude and discretion over discovery requests.

Kilakila ʻO Haleakala v. Bd. of Land & Nat. Res., 138 Hawaiʻi

383, 401, 382 P.3d 195, 213 (2016). And in exercising that

discretion, courts may consider “all factors, including the

effect the inquiry might have on the person to be interrogated.”

Appeal of Goodfader, 45 Haw. at 335, 367 P.2d at 483.

Hawaiʻi courts have not articulated a specific framework

governing when a trial court may limit further testimony from a

medically or psychologically vulnerable witness.

However, Hawaiʻi courts have recognized a close relationship

between HRCP Rule 26 and its federal counterpart. See Brende v.

Hara, 113 Hawaiʻi 424, 431, 153 P.3d 1109, 1116 (2007) (observing

that HRCP Rule 26(c) is “patterned after Federal Rules of Civil

Procedure Rule 26(c)” and “[i]n instances where Hawaiʻi case law

and statutes are silent, this court can look to parallel federal

law for guidance.”). We have also said that where a Hawaiʻi

civil procedure rule is identical to the federal rule, federal

court interpretations of the rule can be highly persuasive.

Carvalho v. AIG Hawai'i Ins. Co., 150 Hawaiʻi 381, 386, 502 P.3d

482, 487 (2022).

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Several jurisdictions characterize the complete prohibition

of a deposition as requiring “extraordinary circumstances.” See

Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)

(observing that an order completely prohibiting a deposition is

“very unusual” and, absent extraordinary circumstances, would

likely constitute error); Dunford v. Rolly Marine Serv. Co., 233

F.R.D. 635, 636 (S.D. Fla. 2005) (recognizing that protective

orders prohibiting depositions are “rarely granted absent

extraordinary circumstances” and require a heavy showing of good

cause); In re McCorhill Publ’g, Inc., 91 B.R. 223, 225 (Bankr.

S.D.N.Y. 1988) (explaining that prohibiting an oral deposition

is “a very unusual procedure” and that the movant bears a heavy

burden of demonstrating good cause).

Some courts have found extraordinary circumstances where

the proposed deposition posed a substantial risk of lifethreatening physical harm. See Dunford, 233 F.R.D. at 636

(granting a protective order where a treating neurologist

attested that the witness suffered from a potentially lifethreatening brain disorder); In re McCorhill Publ’g, Inc., 91

B.R. at 225 (granting a protective order where a treating

physician testified that an oral deposition could threaten the

witness’s life because of his medical condition).

Courts have recognized that sufficiently supported

psychological harm may likewise justify prohibiting a

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deposition. See Campos v. Webb Cnty., 288 F.R.D. 134, 135-36

(S.D. Tex. 2012) (recognizing that competent medical evidence of

severe psychological harm may warrant prohibiting a deposition,

while concluding that the plaintiff had not yet made the

requisite showing).

But courts have required that a request to prohibit a

deposition be supported by competent, specific, and documented

medical evidence demonstrating that the proposed deposition

poses a substantial risk of serious harm. See Anderson v.

Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986) (holding that good

cause must rest on “a particular factual demonstration of

potential harm”); Medlin v. Andrew, 113 F.R.D. 650, 653

(M.D.N.C. 1987) (requiring a “specific and documented factual

showing” that a deposition would be dangerous to the deponent's

health); Schorr v. Briarwood Estates Ltd. P’ship, 178 F.R.D.

488, 492 (N.D. Ohio 1998) (finding good cause where the

plaintiff supported the request with specific documentation from

a PTSD expert); Campos, 288 F.R.D. at 136-38 (requiring detailed

medical evidence explaining how and why the deposition would

cause the predicted harm); Estate of Chen v. Lingting Ye, 208

A.3d 1168, 1176-77 (R.I. 2019) (holding that conclusory

predictions of harm are insufficient absent a particularized

factual showing).

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Cases also hold that where such a showing has been made,

trial courts should ordinarily consider whether reasonable

accommodations adequately mitigate the identified risk before

determining whether further examination should proceed. See

Schorr, 178 F.R.D. at 492 (permitting the deposition subject to

extensive conditions governing its manner and scope); Estate of

Chen, 208 A.3d at 1178-79 (recognizing the trial court’s

authority to impose reasonable restrictions on depositions);

Arcaris v. Superior Court, 160 Ariz. 533 (Ariz. Ct. App. 1989)

(approving protective measures designed to facilitate accurate

testimony while minimizing harm to a child witness); Ceron v.

Belilovsky, 92 A.D.3d 714, 715 (2012) (upholding a protective

order prohibiting an oral deposition where expert evidence

established that testifying under oath would be detrimental to

the child’s health, while permitting written interrogatories

instead).

Accordingly, we hold that, in general, a party seeking to

prohibit a deposition on medical or psychological grounds must

present competent, specific, and documented evidence

demonstrating that the proposed deposition poses a substantial

risk of serious harm. Generalized concerns, conclusory medical

opinions, or speculative predictions of future injury are

insufficient. Upon such a showing, trial courts should consider

whether reasonable accommodations would adequately mitigate the

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identified risk while preserving meaningful discovery. If the

court determines that appropriate accommodations will

sufficiently reduce the risk of harm, it may permit the

deposition subject to those conditions. If, however, the court

concludes that the demonstrated risk cannot be adequately

mitigated through reasonable accommodations, it may limit or

prohibit further examination in the exercise of its discretion

under HRCP Rule 26.

Here, the circuit court did not abuse its discretion by

prohibiting the further deposition of Amy. The State completed

two depositions of Amy, one on March 31, 2016, and the second on

September 29, 2016. The State successfully completed these two

depositions under a protective order that set measures designed

to minimize psychological harm. Despite those measures, Amy’s

symptoms worsened following the depositions, requiring increased

medication and raising concerns regarding a potential psychotic

episode.

Due to these concerns, the circuit court took the step of

appointing a neutral expert psychologist to assess Amy’s ability

to proceed with the deposition. After an exhaustive review of

Amy’s medical records and the recordings of Amy’s previous

depositions, as well as her own clinical examination of Amy, Dr.

Higa-Rogers agreed that Amy could not safely undergo further

deposition sessions. Only then did the circuit court rule that

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no further deposition of Amy could proceed without court

approval.

Then, in January 2020, the State again filed a motion to

depose Amy. In response, the court ordered Dr. Higa-Rogers to

again opine whether Amy could be deposed and if she could

undergo a HRCP Rule 35 examination. In July 2020, Dr. HigaRogers opined:

As previously noted in my December 2018 report, given the

severity [Amy]’s intellectual disability, which is

pervasive in nature, she is not expected to show

significant improvements in her ability to comprehend the

legal process or complex questions, and is more likely to

agree when a yes/no question is asked of her and to assent

when a suggestion is made to her. Furthermore, there is

documentation that following prior depositions [sic] [Amy]

experienced an increase in her symptoms and required an

increase in her medications to address her nightmares,

startle response and fears. The benefits of pursuing

further questioning/testing do not appear to outweigh the

potential risks to [Amy]'s mental health, limited coping,

and is unlikely to yield significant additional

information.

Therefore, the circuit court was presented with

substantive, specific evidence of actual harm that had already

befallen Amy as well as the likelihood of further harm if a

further deposition was allowed to take place. The circuit court

denied a third and final deposition session only because of

consistent medical evidence from multiple treating

professionals, a court-appointed neutral evaluator, and the

State’s own retained expert expressing serious concerns

regarding Amy’s ability to safely participate in a further

examination. The experts opined that Amy’s chronic PTSD, severe

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intellectual disability, psychotic symptoms, and inability to

develop effective coping mechanisms rendered an additional

examination likely to cause further serious psychological

injury.

The record also supports the circuit court’s conclusion

that the likely benefit of additional examination was minimal.

Medical experts explained that additional questioning was

unlikely to be productive. Any information Amy provided might

not be reliable because of her disability, which rendered her

highly suggestible.

In addition, the State remained free to pursue information

from other sources. Although the State argues it required

additional testimony regarding Amy’s interactions with her

neighbor, the record does not reflect that it attempted to

depose the neighbor directly. Nor does the record reflect that

the State sought testimony from other identified witnesses or

pursued less intrusive means of obtaining the information it

sought.

Under the circumstances, the circuit court did not abuse

its discretion by ruling that the marginal benefit of additional

examination did not justify the substantial identified risk and

that the risk would not dissipate with time.

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2. The circuit court did not abuse its discretion by

denying the State’s request for a HRCP Rule 35

examination.

The State also alleges that the circuit court abused its

discretion by denying its request to conduct a HRCP Rule 35

examination of Amy.

HRCP Rule 35(a) provides, in relevant part, “[w]hen the

mental or physical condition . . . of a party . . . is in

controversy, the court . . . may order the party to submit to a

physical or mental examination.” HRCP Rule 35(a). The rule

further provides that such an order “may be made only on motion

for good cause shown.” HRCP Rule 35(a). The ICA has recognized

that a Rule 35 motion must “adequately demonstrate the existence

of the Rule’s requirements of ‘in controversy’ and ‘good

cause,’” and that “[t]he movant must produce sufficient

information, by whatever means, so that the [trial] judge can

fulfill [the] function mandated by the Rule.” Glover v. Grace

Pac. Corp., 86 Hawai‘i 154, 160, 948 P.2d 575, 581 (App. 1997)

(citation omitted).

HRCP Rule 35 is almost identical to Rule 35 of the Federal

Rules of Civil Procedure. In Schlagenhauf v. Holder, 379 U.S.

104, 118 (1964), the U.S. Supreme Court explained that the “in

controversy” and “good cause” requirements are “plainly

expressed limitations on the use of the Rule” and “are not met

by mere conclusory allegations of the pleadings, nor by mere

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relevance to the case.” Instead, each “require[s] an

affirmative showing by the movant.” Id.

Here, Amy’s psychological condition was clearly in

controversy. And there was good cause for a HRCP Rule 35

examination.

But satisfaction of HRCP Rule 35’s threshold requirements

does not end the inquiry. Once the moving party establishes the

“in controversy” and “good cause” requirements, HRCP Rule 35

provides only that the court may order the requested

examination. HRCP Rule 35(a). The rule therefore authorizes,

but does not require, an examination.

Here, the circuit court did not abuse its discretion by

denying the HRCP Rule 35 examination. By the time the State

sought the examination, the court had spent years attempting to

address issues regarding Amy’s continued deposition, as

discussed above. The circuit court was well aware of

significant concerns regarding the effect of litigation-related

questioning on Amy’s mental health.

Most significantly, Dr. Higa-Rogers, the court-appointed

neutral medical expert, also recommended that the HRCP Rule 35

exam not proceed due to the risks to Amy’s health. Dr. HigaRogers opined that “the benefits of pursuing further

questioning/testing do not appear to outweigh the potential

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risks to [Amy]’s mental health, limited coping, and is unlikely

to yield significant additional information.”

The circuit court denied the requested examination after

receiving this information, concluding that it posed a

“significant risk to [Amy]’s mental health.” The circuit court

did not err by concluding that the anticipated benefits of a

HRCP Rule 35 examination did not justify the risks identified by

the medical evidence. It therefore did not abuse its discretion

by denying the HRCP Rule 35 examination requested by the State.

Moreover, the denial of the HRCP Rule 35 examination did

not result in substantial prejudice to the State.

First, the State was not deprived of information concerning

Amy’s mental condition. The State had Amy’s extensive medical

records and reports. Second, the State does not specify what

type of otherwise unavailable information a HRCP Rule 35

examination was likely to produce. Finally, the State has not

demonstrated that denial of the HRCP Rule 35 examination

substantially prejudiced its defense. The State had completed

two depositions of Amy before seeking the examination. In

addition, the medical evidence consistently established that

Amy’s severe intellectual disability rendered her highly

suggestible and that any additional information obtained through

a HRCP Rule 35 examination might also not be reliable.

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Under these circumstances, the circuit court did not abuse

its discretion by denying the State’s request for a HRCP Rule 35

examination.

3. The damages award was not excessive.

Finally, the State asks this court to reverse the circuit

court's damages award, contending that the amount was grossly

excessive.

Appellate review of a damages award is highly deferential

because the assessment of damages lies primarily within the

province of the factfinder. See Kang, 59 Haw. at 663, 587 P.2d

at 292. A damages award will not be disturbed unless it is

“palpably not supported by the evidence” or is “so excessive and

outrageous” as to demonstrate that the factfinder acted against

the rules of law or was misled by passion or prejudice. Kekona,

135 Hawaiʻi at 257, 349 P.3d at 364. In a jury-waived case, the

inquiry is limited to whether, “upon the evidence adduced,

reasonable [people] could have come to the same conclusion as

the . . . trial court.” Kang, 59 Haw. at 663, 587 P.2d at 292

(citation omitted).

Here, the record contains substantial evidence supporting

the award. The court conducted a sixty-six-day bench trial,

heard testimony from more than thirty witnesses, and made

extensive findings regarding both liability and damages. The

record amply supports the damages awards.

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Thus, the damages awarded are not excessive.

V. Conclusion

For these reasons, we vacate the November 28, 2022 final

judgment to the extent it allocated 30% of the fault to

nonparties and reduced Plaintiffs’ damages. We remand this case

to the circuit for entry of an amended final judgment awarding

Plaintiffs the entirety of the damages found by the circuit

court. We affirm in all other respects.

Anne E. Lopez /s/ Vladimir P. Devens Skyler G. Cruz

Jennifer H. Crum /s/ Sabrina S. McKenna for appellee/cross-appellant,

State of Hawaiʻi /s/ Todd W. Eddins

Eric G. Ferrer /s/ Lisa M. Ginoza Susan K. Dorsey

William Meheula /s/ Catherine H. Remigio for appellants/cross-appellees,

R.H. and A.H.

R.H. v. Hayashi

Authorities cited

Opinion · public domain