77 Hawai'i 446, Lee v. Elbaum

• Decision Date: 10 March 1993
• Docket Number: No. 15353,15353
• Citation: 887 P.2d 656
• Parties: 77 Hawai'i 446 Herbert C. LEE, individually, and as Special Administrator of the Estate of Edward Jan Hop Lee, Plaintiff, v. Leonard ELBAUM, Defendant-Appellee, and John Does 1-10, Doe Partnerships, Corporations, Governmental Entities 1-10, and/or Other Entities 1-10, Defendants. Rita Mae Ing LEE, individually, and as Special Administrator of the Estate of Edward J.H. Lee, deceased, Plaintiffs-Appellant, v. Leonard ELBAUM, Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Roe "Non-Profit" Corporations 1-10, and Roe Entities 1-10, Defendants.
• Court: Hawaii Court of Appeals

Page 656

887 P.2d 656

77 Hawai'i 446

Herbert C. LEE, individually, and as Special Administrator of the Estate of Edward Jan Hop Lee, Plaintiff, v. Leonard ELBAUM, Defendant-Appellee, and John Does 1-10, Doe

Partnerships, Corporations, Governmental Entities

1-10, and/or Other Entities 1-10, Defendants.

Rita Mae Ing LEE, individually, and as Special Administrator of the Estate of Edward J.H. Lee, deceased, Plaintiffs-Appellant, v. Leonard ELBAUM, Defendant-Appellee, and John Does 1-10, Jane

Does 1-10, Doe Partnerships 1-10, Doe Corporations

1-10, Roe "Non-Profit" Corporations

1-10, and Roe Entities 1-10, Defendants.

No. 15353.

Intermediate Court of Appeals of Hawai'i.

March 10, 1993.

Reconsideration Denied March 31, 1993.

Certiorari Granted May 20, 1993.

Certiorari Dismissed as Improvidently

Granted Jan. 26, 1995.

[77 Hawai'i 449] Syllabus by the Court

1. In order for an objection or motion to strike to be "timely" for purposes of Hawai'i Rules of Evidence (HRE) 103(a), the objection to evidence must be made when offered or when the grounds for objection become apparent, or they are deemed waived on appeal.

2. Where plaintiffs' counsel did not object to the testimony of a defense expert until after the expert had been questioned on direct examination, cross-examination, and redirect examination, and where no motion to strike the expert's testimony was made until two days later, after the defense had already rested its case and the court had already determined the instructions to be submitted to the jury, plaintiffs' objection to the expert's testimony was untimely and waived for appeal purposes.

3. The Hawai'i Rules of Civil Procedure (HRCP), which are patterned after the Federal Rules of Civil Procedures (FRCP), provide for very liberal discovery of an adverse party's experts, and impose a continuing obligation on a party to seasonably supplement responses to discovery requests regarding "the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify and the substance of his testimony." HRCP 26, FRCP 26.

4. The history of FRCP 26, which liberalized pretrial discovery of experts and is highly persuasive in construing HRCP 26, makes it abundantly clear that complete and accurate pretrial discovery of expert witnesses is critical to a fair trial, and HRCP is designed to promote candor and fairness in the pretrial discovery process and to eliminate surprises at trial.

5. The trial court should have disallowed an expert's testimony regarding a video where the record revealed that plaintiffs were not notified of the video's existence until after trial had begun and were not made aware of the expert's proposed testimony regarding the video until the day on which he was to actually testify. Plaintiffs were given no opportunity to investigate the conditions under which the video was filmed, determine the circumstances for the filming of the video, and prepare for full cross-examination of the expert, and they were thus unfairly surprised by the testimony.

6. A new trial will not be granted on the grounds that surprise evidence was admitted unless the moving party was prejudiced and can show that failure to grant a new trial is inconsistent with substantial justice.

7. The law is clear that it is error to instruct a jury on a statement of facts not supported or warranted by the evidence adduced at trial, and such an error is presumptively harmful unless it appears from the record as a whole that the error was not prejudicial.

8. The function served by jury instructions is to inform the jury of the law applicable to the current case and to inform the jury of its function, which is the independent determination of the facts and the application of law, as given by the court, to the facts found by the jury. Therefore, a jury charge should be a concise statement of the claims of the parties, the issues of fact that the jury must decide, and the applicable law.

9. Where an alleged violation of a rule having the force and effect of law has been raised by one of the parties, the jury should be instructed about the applicable rule, and then instructed to apply the law in determining the question of negligence.

10. The general principles of construction which apply to statutes also apply to administrative rules. As in statutory construction, courts look first at an administrative rule's language. If an administrative rule's language is unambiguous, and its literal application is neither inconsistent with the policies of the statute the rule implements nor produces an absurd or unjust result, courts enforce the rule's plain meaning. Moreover, an administrative agency's interpretation of its own rules is entitled to deference unless it is plainly erroneous or inconsistent with the underlying legislative purpose.

11. A snorkel, which is defined in Webster's New World Dictionary as a "breathing tube extending above the water, used in swimming below the surface," is man-made 12. Under Hawaii Rules of Evidence (HRE) 404(a), evidence of a person's character or a trait of his character is generally inadmissible to prove that the person acted in conformity therewith on a particular occasion. Moreover, under HRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.

[77 Hawai'i 450] and not a natural extension of one's body, and clearly qualifies as an "artificial breathing device" within the meaning of HAR § 19-76-9. This plain meaning of HAR § 19-76-9 is consistent with its administrative interpretation, which is entitled to great deference.

13. Character evidence is prohibited by HRE 404 because it is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good person and to punish the bad person because of their respective characters, despite what the evidence in the case actually showed happened.

14. It is well-settled that evidence of the good or bad character of either party to a civil action is generally inadmissible. Such evidence is regarded as too remote to be of substantial value, as tending to confuse the issues and unduly protract the trial, and, most importantly, as offering a temptation to the jury to reward a good life or punish a bad one instead of deciding the issues before them.

15. Under HRE 406, evidence of the habit of a person, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit.

16. According to the Commentary to HRE 406, character and habit are closely akin. Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct.

17. "Character" is a generalized description of one's disposition in respect to a general trait such as honesty, temperance, or carefulness, while "habit" is more specific. The latter designates a regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances. Evidence of habit or custom is relevant to an issue of behavior on a specific occasion because it tends to prove that the behavior on such occasion conformed to the habit or custom.

18. There are two elements of habit evidence. First, the evidence must be the regular practice of a person responding to a particular kind of situation. In this regard, the practice must be frequent, and it must be invariable or, at least, consistent. Second, the habit must be specific. The specificity requirement is the primary tool for weeding out character evidence when it is offered as habit evidence.

19. Testimony that defendant had sped his boat in the marina and channel "over several days" prior to a boating accident was not admissible as habit evidence. There was no offer of proof as to defendant's "specific" speed on those occasions, and the evidence indicated there was no speed limit in the channel. There was also no proof that defendant had a "regular" and "invariable" practice of driving his boat at a particular speed.

20. On appeal, a denial of a motion for a new trial is reviewed for abuse of discretion.

Henry N. Kitamura (with Scott E. Kubota on the briefs, Shim, Tam, Kirimitsu, Kitamura & Chang, of counsel), Honolulu, for plaintiffs-appellants.

David J. Dezzani (with Roy J. Tjioe on the brief, Goodsill Anderson Quinn & Stifel, of counsel), Honolulu, for defendant-appellee.

Before BURNS, C.J., and HEEN and WATANABE, JJ.

WATANABE, Judge.

In this wrongful death case, Plaintiff-Appellant Rita Mae Ing Lee (Appellant), the mother of Edward J.H. Lee (Decedent), appeals Appellant argues that the trial court committed reversible error in several respects. First, Appellant argues that the trial court should not have allowed Dr. Bruce Liebert (Liebert), a defense expert, to testify on the effect of a high-speed propeller blade hitting bone mass, since Liebert had previously testified during his deposition that he had "no trial opinions," and his trial testimony thus unduly surprised Plaintiffs.

[77 Hawai'i 451] individually and as Special Administrator of Decedent's estate, from the First Circuit Court's March 28, 1991 judgment against her and Decedent's father, who was also appointed as Special Administrator of Decedent's estate (collectively, Plaintiffs), ¹ and the April 26, 1991 order denying Appellant's motion for a new trial.

Appellant also insists that it was error to allow another defense witness, Dr. Richard Grigg (Grigg), to comment on a television news video taken a few hours...