Castro v. Melchor, No. CAAP–12–0000753.

CourtCourt of Appeals of Hawai'i
Writing for the CourtOpinion of the Court by LEONARD, J.
Citation366 P.3d 1058,137 Hawai'i 179
Docket NumberNo. CAAP–12–0000753.
Decision Date29 January 2016
Parties Leah CASTRO, individually and as Personal Representative of the Estate of Briandalynne Castro, deceased minor, Plaintiff–Appellee, v. Leroy MELCHOR, in his official capacity; Wanna Bhalang, in her official capacity; Tomi Bradley, in her official capacity; State of Hawai‘i; and Hawaii Department of Public Safety, Defendants–Appellants, and Amy Yasunaga, in her official capacity; Roberta Marks, in her official capacity; Kenneth Zienkiewicz, M.D., in his official capacity; and Keith Wakabayashi, in his official capacity, Defendants–Appellees, and John Does 1–10; Jane Does 1–10; Doe Partnerships 1–10; Doe Corporations 1–10; And Doe Entities 1–10, Defendants.

137 Hawai'i 179
366 P.3d 1058

Leah CASTRO, individually and as Personal Representative of the Estate of Briandalynne Castro, deceased minor, Plaintiff–Appellee,
v.
Leroy MELCHOR, in his official capacity; Wanna Bhalang, in her official capacity; Tomi Bradley, in her official capacity; State of Hawai‘i; and Hawaii Department of Public Safety, Defendants–Appellants,
and
Amy Yasunaga, in her official capacity; Roberta Marks, in her official capacity; Kenneth Zienkiewicz, M.D., in his official capacity; and Keith Wakabayashi, in his official capacity, Defendants–Appellees,
and
John Does 1–10; Jane Does 1–10; Doe Partnerships 1–10; Doe Corporations 1–10; And Doe Entities 1–10, Defendants.

No. CAAP–12–0000753.

Intermediate Court of Appeals of Hawai‘i.

Jan. 29, 2016.


366 P.3d 1061

Marie Manuele Gavigan, Henry S. Kim, Deputy Attorneys General, on the briefs, for Defendants–Appellants.

Sue V. Hansen, Honolulu, Charles W. Crumpton, (Crumpton & Hansen), on the briefs, for Plaintiff–Appellee.

NAKAMURA, Chief Judge, FUJISE and LEONARD, JJ.

Opinion of the Court by LEONARD, J.

137 Hawai'i 182

Defendants–Appellants Leroy Melchor (Melchor ), Wanna Bhalang (Bhalang ), Tomi Bradley (Bradley ), the State of Hawai‘i, and the Hawai‘'i Department of Public Safety (DPS ) (collectively, the State ), appeal from the Circuit Court of the First Circuit's (Circuit Court's ) Judgment Pursuant to Findings of Fact, Conclusions of Law and Order (Judgment ) filed on July 31, 2012, and challenge the Circuit Court's Findings of Fact and Conclusions of Law and Order filed May 14, 2012 (FOF, COLs and Order ).1

This wrongful death action arose out of the allegedly inadequate medical care provided to Plaintiff–Appellee Leah Castro (Castro ) while she was incarcerated at the Oahu Community Correctional Center (OCCC ). After a non-jury trial, the Circuit Court found that Castro's baby, Briandalynne Castro (Briandalynne ), was stillborn as the result of the State's negligence. Castro was awarded $250,000 in damages for negligent infliction of emotional distress (NIED ) and $100,000 for loss of filial consortium, and Briandalynne's estate was awarded $250,000 for, inter alia, the loss of enjoyment of life.

On appeal, the State argues, inter alia, that: a wrongful death claim may not be brought on behalf of an unborn fetus under Hawai‘i's wrongful death statute; the Circuit Court erred by finding that the State was negligent and that its negligence was the legal cause of Briandalynne's death; and that even if negligence has been proved, the damages awarded were speculative and improper. We affirm.

I. BACKGROUND FACTS

A. Procedural History

On July 30, 2009, individually and as the personal representative of Briandalynne's estate, Castro filed her First Amended Complaint2 against the Defendants–Appellants, as well as Amy Yasunaga (Yasunaga ), Roberta Marks (Marks ), Kenneth Zienkiewicz (Zienkiewicz ), and Keith Wakabayashi (Wakabayashi ), in their official capacities. Count I of the complaint alleged that Melchor, Bhalang, Bradley, and Yasunaga, who were nurses at OCCC, failed to provide proper medical care to Castro and Briandalynne. The State of Hawai‘i and DPS were alleged to be negligent in training, supervising, and/or retaining their defendant employees, and also vicariously liable for their negligence as they were acting within the scope and course of their employment. Count I also alleged that the defendants' negligence and/or gross negligence was the legal cause and/or substantial factor in Briandalynne's death and Castro's mental and emotional distress. Count II alleged intentional and negligent infliction of emotional distress to Castro by all defendants except the State of Hawai‘i and DPS.

On March 24, 2011, the defendants filed a motion for summary judgment. On October 14, 2011, the Circuit Court entered an Amended Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (Amended Summary Judgment Order ).3 The court granted summary judgment as to all claims against Yasunaga, Marks, Zienkiewicz, and Wakabayashi, but denied summary judgment in all other respects. A jury-waived trial began on February 27, 2012.

137 Hawai'i 183
366 P.3d 1062

B. Testimony at Trial

1. Castro's pregnancy, incarceration and stillbirth

Castro was pregnant when she entered OCCC as an inmate on May 29, 2007.4 She had not previously received any prenatal care and admitted to using "ice" during the first two months of her pregnancy. According to Castro, the baby's father was Castro's biological father. Castro had never been pregnant before. When she was admitted to OCCC, she did not immediately tell OCCC's medical unit that she was pregnant. Castro said her reason for not revealing her pregnancy was that it was embarrassing. It appears from her testimony that she also felt pressure from police officers and inmates who were friends with her father to not reveal the pregnancy.

On June 29, 2007, Castro was transferred to the Federal Detention Center (FDC ) where a pregnancy test revealed her pregnancy. As the FDC would not house pregnant inmates, Castro was sent back to OCCC. On July 2, 2007, she saw Yasunaga, a nurse at OCCC. Yasunaga testified that she referred Castro to Kapiolani Medical Center for prenatal care and for an ultrasound. However, although she was transported to Kapiolani, Castro was told that her appointment had been cancelled. To her knowledge, another appointment was never scheduled.

After she had been sent back to OCCC from the FDC, Castro was placed in what was known as a lockdown cell. While in lockdown, Castro began to experience spotting and what she described as light pinkish discharge. She asked Adult Corrections Officer (ACO ) Hattie Reis (Reis ) if bleeding or spotting during pregnancy was normal. Castro stated "to my understanding from what ACO Hattie told me was that medical had said that only if I was bleeding I guess more and if I was cramping then to notify them again." Castro estimated that she talked to Reis about three times about her bleeding. Each time she spoke to Reis, Reis would tell her that Reis had spoken to a nurse and "it was the same, same response. ‘Is the pad saturated?’ " Castro did not receive medical care after speaking with Reis for the third time.

Castro also asked ACO Wanda Nunes (Nunes ) if her bleeding was normal. Castro testified that the response that Nunes related from the medical unit was "that if the pad wasn't completely saturated, or in her words, if I wasn't bleeding more or cramping, then ... medical was not going to take me."

After speaking to Nunes, Castro told ACO Reyetta Ofilas (Ofilas ) about her bleeding "once or twice". Ofilas asked her if she was cramping and if the pad was saturated, which Castro understood to be questions coming from the medical unit. No medical care was provided through Ofilas.

Describing her bleeding, Castro said that "the spotting started getting excessive probably about a week after of just spotting. And then it was blood. And then about a week before I got transferred to [Women's Community Correctional Center (WCCC) ] it went back to spotting again."

While she was bleeding, Castro had been to the medical unit of OCCC for a medication called Seroquel which she took for post-traumatic stress disorder (PTSD ) and anxiety. She did not tell her psychiatrist or psychologist about her bleeding. Nor did she tell the nurse who delivered Seroquel to her cell about her bleeding.

Castro was transferred to the women's prison, WCCC, on August 2, 2007. She was housed in the segregation area. Her bleeding had stopped by the time she went to the WCCC, but she was still experiencing discharge. However, by the third day after she arrived at the WCCC, Castro's stomach felt hard, she could not feel the baby kicking, and she felt sick after eating. Castro used an intercom to call an ACO named "Sula" and told her that her baby had not been moving for about three days. A nurse came to see Castro and told her a midwife would be seeing her on Friday. The interaction with the nurse occurred on a Tuesday or Wednesday.

366 P.3d 1063
137 Hawai'i 184

Castro was seen on that Friday and was told that her baby's heartbeat could not be found and she needed to be taken to the hospital immediately. The midwife who saw her, Joann Amberg (Amberg ) testified that this visit occurred on August 10, 2007. Castro was rushed to the hospital where she learned that her baby was dead. Labor was induced and Castro gave birth to a stillborn baby. An autopsy authorization shows that the stillbirth occurred on August 11, 2007.

2. The expert testimony

Dr. Jeffrey Killeen (Dr. Killeen ) was qualified as an expert in anatomic and clinical pathology. Dr. Killeen performed an autopsy on Briandalynne on August 14, 2007. Dr. Killeen reported that no "gross congenital anomalies" were found during the autopsy. He stated that in "[s]omewhere between probably 25 and 50 percent of [stillbirth] cases you can't find a specific cause of death." In this case, he did not have a...

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3 practice notes
  • Castro v. Melchor, SCWC-12-0000753
    • United States
    • Supreme Court of Hawai'i
    • 13 Marzo 2018
    ...of enjoyment of life." The Intermediate Court of Appeals (ICA) affirmed the circuit court's decision. Castro v. Melchor, 137 Hawai‘i 179, 366 P.3d 1058 (App. 2016).Petitioners' application presents a question of first impression to this court: whether the estate of a viable fetus can recove......
  • Brown v. Porter Mcguire Kiakona & Chow, LLP, CIVIL 16-00448 LEK-KJM
    • United States
    • U.S. District Court — District of Hawaii
    • 30 Agosto 2017
    ...P.2d 38, 43-44 (1994) (uninsured motors statutes like Haw. Rev. Stat. § 431:10C-301(b)(3)); Castro v. Melchor, 137 Hawai`i 179, 189-90, 366 P.3d 1058, 1068-69 (Ct. App. 2016) (Haw. Page 16Rev. Stat. § 663-3),16 cert. granted, No. SCWC-12-0000753, 2016 WL 3218858 (Hawai`i June 9, 2016). Sect......
  • Estate of Stephenson v. Harrison, No. 68189
    • United States
    • Nevada Court of Appeals of Nevada
    • 30 Diciembre 2016
    ...I believe appellants sufficiently argued this point both before the district court and before this court. 5. See also Castro v. Melchor, 366 P.3d 1058, 1066 n.8 (Haw. Ct. App. 2016) (collecting cases and observing that 41 states and the District of Columbia allow recovery for wrongful death......
3 cases
  • Castro v. Melchor, SCWC-12-0000753
    • United States
    • Supreme Court of Hawai'i
    • 13 Marzo 2018
    ...of enjoyment of life." The Intermediate Court of Appeals (ICA) affirmed the circuit court's decision. Castro v. Melchor, 137 Hawai‘i 179, 366 P.3d 1058 (App. 2016).Petitioners' application presents a question of first impression to this court: whether the estate of a viable fetus can recove......
  • Brown v. Porter Mcguire Kiakona & Chow, LLP, CIVIL 16-00448 LEK-KJM
    • United States
    • U.S. District Court — District of Hawaii
    • 30 Agosto 2017
    ...P.2d 38, 43-44 (1994) (uninsured motors statutes like Haw. Rev. Stat. § 431:10C-301(b)(3)); Castro v. Melchor, 137 Hawai`i 179, 189-90, 366 P.3d 1058, 1068-69 (Ct. App. 2016) (Haw. Page 16Rev. Stat. § 663-3),16 cert. granted, No. SCWC-12-0000753, 2016 WL 3218858 (Hawai`i June 9, 2016). Sect......
  • Estate of Stephenson v. Harrison, No. 68189
    • United States
    • Nevada Court of Appeals of Nevada
    • 30 Diciembre 2016
    ...I believe appellants sufficiently argued this point both before the district court and before this court. 5. See also Castro v. Melchor, 366 P.3d 1058, 1066 n.8 (Haw. Ct. App. 2016) (collecting cases and observing that 41 states and the District of Columbia allow recovery for wrongful death......

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