Exotics Hawaii v. E.I. Du Pont De Nemours

Decision Date21 November 2007
Docket NumberNo. 27489.,27489.
Citation172 P.3d 1021
CourtHawaii Supreme Court
PartiesEXOTICS HAWAII-KONA, INC,; Sharon Murakami, as Special Representative for the Estate of Chiaki Kato; Harvy Tomono; Andraea Partners; Arvak Agronomics, Inc.; C & L Orchids and Island Agribusiness, Ltd.; Ernest Carlbom and Donna Carlbom; Cymbidium Partners; Floral Resources/Hawaii, Inc.; Flowers, Inc.; Glenwood Cymbidium Partners; Green Point Nurseries, Inc.; Daniel Hata d/b/a Hata Farm; Hawaiian Anthuriums, Ltd.; Hawaiian Greenhouses, Inc.; Hawaiian Heart, Inc.; Albert Isa d/b/a Albert Isa Nursery; Kaimu Nursery, Inc.; Kaohe Nursery; Margaret Kincaid and Peter Kincaid d/b/a Anuenue Farms; Kona Orchids, Inc.; Kupulau Anthurium Partners; Alan Kuwahara d/b/a Puna Floriculture; James Kuwahara d/b/a James S. Kuwahara Farm; Yoso Kuwahara, Inc.; Henry Liljedahl; Malaai Partners; James McCully; Mitsuo Miyatake d/b/a Miyatake Farms; Curtis Nakaoka d/b/a Kona Grown Nurseries; George J. Nakashima d/b/a Nakashima Farm; Jeffrey Newman d/b/a Newman's Nurseries; Mark K. Nozaki d/b/a Nozaki Farms; Big Rock Anthuriums, Inc.; Patrick Oka d/b/a Oka Nursery; Carl Okamoto d/b/a Carl Okamoto & Lehua Tropical Flowers; Clyde Okamoto d/b/a Ho`Onanea Farms; Wade Okamoto d/b/a Paradise Anthuriums; Ronald Okazaki and Dora Okazaki d/b/a Lehua Anthurium Nursery; Neal Okimoto d/b/a Pacific Paradise Orchids; Orchid Partners; Pacific Nurseries, Inc.; Polynesian Orchids & Anthuriums, Inc.; Puna Flowers & Foliage, Inc.; Sunshine Farms; George Shiroma d/b/a G. Shiroma Farms; Masato Shiroma d/b/a Mae's Nursery; Masao Sunada; Samuel H. Taka & Sylvia A. Taka d/b/a S. Taka; Yoshio Takemoto, Midori Takemoto, Cary Takemoto, Morris Takemoto and Norman Takemoto d/b/a Takemoto Farm; Fetulima Tamasese d/b/a Pacific Kona Orchids; Harold S. Tanouye & Sons, Inc.; Henry Terada and Loraine Y. Terada d/b/a H & L Terada Farm; Vantanage Partners; Uniwai I Limited Partners; Uniwai II Limited Partners; Waiakea Partners; Dwight E. Walker, Jr. and Bernice K. Walker d/b/a Puna Ohana Flowers; Mark Willman d/b/a Hawaii Orchids; Exotics Hawaii, Ltd., Plaintiffs-Appellants/Cross-Appellees v. E.I. Du PONT DE NEMOURS & COMPANY; Allen Teshima; and Reginald Hasegawa, Defendants-Appellees/Cross-Appellants.

Melvin Y. Agena, on the briefs, Honolulu, for plaintiffs-appellants/cross-appellees.

Warren Price III, Kenneth T. Okamoto, Robert A. Marks, and Susan C. Wilson (of Price Okamoto Himeno & Lum), on the briefs, for defendant-appellee/cross-appellant, E.I. Du Pont de Nemours and Company.

MOON, C.J., LEVINSON, NAKAYAMA, JJ., and Circuit Judge LEE, In Place of DUFFY, J., Recused; ACOBA, J., Dissenting.

Opinion of the Court by MOON, C.J.

The instant action arises from product liability cases initiated by the plaintiffs-appellants/cross-appellees Albert Isa dba Albert Isa Nursery (Isa), Samuel H. Taka and Sylvia A. Taka dba S. Taka (the Takas), Mark Willman dba Hawai`i Orchids (Willman), and James McCully [hereinafter, collectively, the plaintiffs] in 1992 and 1993 against, inter alia, the defendant-appellee/cross-appellant E.I. du Pont de Nemours and Company (DuPont), alleging that contaminated Benlate, an agricultural fungicide manufactured by DuPont, had killed or damaged their plants and nurseries.1 Between 1994 and 1995, the plaintiffs settled their product liability cases. In 2000, the plaintiffs commenced the instant action against, inter alia, DuPont, alleging that only after settling their claims did they discover that DuPont had improperly failed to reveal certain vital scientific data and information indicating that Benlate was contaminated. As such, the plaintiffs believed that DuPont was guilty of fraudulently withholding such evidence in order to induce them to settle for less than the fair value of their claims.

In three summary judgment orders, the Circuit Court of the Third Circuit, the Honorable Ronald J. Ibarra presiding, found in favor of DuPont on all of the plaintiffs' claims. Significantly, the circuit court, without determining whether DuPont indeed committed fraud, found as a matter of law that the plaintiffs could not meet their burden of proving damages. According to the circuit court, the damages available to the plaintiffs was "the fair compromise value of the claim at the time of the settlement." A judgment, pursuant to Hawai`i Rules of Civil Procedure (HRCP) Rule 54(b) (2007),2 in favor of DuPont was entered on August 10, 2005.

The plaintiffs appeal—and DuPont cross appeals—from the HRCP Rule 54(b) judgment. The plaintiffs challenge, inter alia, the circuit court's order granting summary judgment on the basis that they were unable to prove damages. Although DuPont's position is that the HRCP Rule 54(b) judgment should be upheld, it cross appeals in apparent recognition of the possibility that this court may not agree with its position, challenging another order granting in part and denying in part DuPont's motion for summary judgment, discussed infra.

For the reasons stated herein, we hold that the circuit court properly granted summary judgment in favor of DuPont on the basis that the plaintiffs could not, as a matter of law, prove damages and, therefore, affirm the circuit court's August 10, 2005 judgment.


This court has previously presented a brief factual summary of the underlying product liability cases in Exotics Hawai`i-Kona, Inc. v. E.I. Dupont De Nemours & Co., 104 Hawai`i 358, 90 P.3d 250 (2004). However, given the resolution of this case and the fact that the instant appeal involves only four of the sixty original plaintiffs, see supra note 1, a concise version of the facts are provided below as they relate only to those four plaintiffs and the pertinent summary judgment orders—specifically, the order granting summary judgment based on the plaintiffs' inability to prove damages.

A. The Complaint

As previously mentioned, between November 1992 and March 1993, the plaintiffs, who were commercial growers, brought product liability actions against, inter alia, Dupont, alleging that its Benlate product was defective and that it caused damage to their plants and nurseries. In 1994 and 1995, the plaintiffs entered into individual settlement agreements with DuPont that resulted in DuPont's payment of certain sums in exchange for the execution of releases by the plaintiffs. As a result of these settlement agreements, the plaintiffs entered into stipulations to dismiss their product liability actions with prejudice.

On January 6, 2000, the plaintiffs filed an eighty-four page first amended complaint against, inter alia, DuPont. The plaintiffs claimed that DuPont had defrauded them "into settling for pennies on the dollar for damages" caused by its Benlate product. Specifically, the plaintiffs alleged that DuPont wrongfully, illegally, and fraudulently withheld from discovery vital scientific data and information that it was under an obligation to produce in the underlying product liability actions. The plaintiffs' first amended complaint alleged that:

208. If, at the time the [p]laintiffs accepted settlement of their underlying [product liability] claims, they had received full, fair, truthful and complete disclosure of material information, the [p]laintiffs would not have accepted the consideration offered for settlement which was substantially less than the losses which they had suffered.

209. [The p]laintiffs would have continued to press their claims if full, complete and truthful disclosures had been made. Reliance by those [p]laintiffs on full, fair and disclosure by DuPont, which in fact was not forthcoming, resulted in injury in the form of settlement for lower compensation than was adequate or would otherwise have been available.

The plaintiffs asserted that the "appropriate measure of recovery for said conduct is the difference between [the p]laintiffs' actual total damages (e.g., crop and plant losses, soil injuries, lost market positions and lost economic advantage) and the amount, if any, previously received" from DuPont. Accordingly, the plaintiffs alleged ten counts, to wit:

                  COUNT                CAUSE OF ACTION
                    1      intentional spoliation of evidence
                    2      negligent spoliation of evidence
                    3      fraud
                    4      fraudulent misrepresentation
                    5      negligent misrepresentation
                    6      non-disclosure3
                    7      intentional interference with prospective
                           business advantage
                    8      civil conspiracy
                    9      violation of due process rights and rights to
                           a fair trial as guaranteed by article I, section
                           4 of the Hawai`i State Constitution
                   10      exemplary damages

DuPont filed its answer to the first amended complaint on February 14, 2000.4

B. Proceedings Regarding the Motions for Summary Judgment

As previously stated, the circuit court, in three summary judgment orders, found in favor of DuPont on all of the plaintiffs' claims. However, in light of our disposition, we recount only two of the three motions, focusing especially upon the motion concerning the plaintiffs' lack of evidence to support their damages. The other motion for summary judgment is addressed infra in section III.A.2. as it becomes relevant to the plaintiffs'...

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