Lai v. St. Peter
| Decision Date | 21 March 1994 |
| Docket Number | No. 15136,15136 |
| Citation | 869 P.2d 1352,10 Haw.App. 298 |
| Parties | Ka Mee LAI, aka Rose Lai, and Narongsak Loesvaranurak, aka Steve Lai, Plaintiffs-Appellants, v. Jeannine ST. PETER and John Kott, Defendants-Appellees, and John Doe 1-10, Doe Corporation 1-10, Doe Partnership 1-10, Defendants. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. If rules are made only for the general control of conduct of persons while on the premises of another, mere conformity to such rules does not indicate or establish that the persons involved are employees of the person making the rules.
2. According to Hawai'i Rules of Evidence (HRE) Rule 703, there are three sources of information upon which the opinion of an expert witness may be based: (1) firsthand observation by the expert; (2) presentation of data to the expert at trial through a hypothetical question or by having the expert attend the trial and hear testimony of others; and (3) presentation of data to the expert outside of court and other than by his or her own perception.
3. An expert may rely upon facts, data, and opinions not yet received in evidence, subject to later introduction, in forming an opinion about the nature of a party's injuries.
4. The question of whether a witness qualifies as an expert is a matter addressed to the sound discretion of the trial court, and such determination will not be overturned unless there is a clear abuse of discretion.
5. An expert's lack of experience and knowledge of a particular subject matter goes to the weight, rather than the admissibility of the expert's testimony.
6. HRE Rule 703 has liberalized the bases for expert testimony, and an expert is allowed to express an opinion based on facts and data which are not admissible into evidence, if the facts and data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. In determining whether an expert's reliance on information is reasonable, a trial court must evaluate the opinion and its foundation on a case-by-case basis. However, doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors, such as time or surprise, favoring exclusions.
7. In recognition of the liberal bases allowed for an expert's testimony under HRE Rule 703, HRE Rule 702.1 permits broad cross-examination of an expert about any books, articles, periodicals, studies, and lectures which the expert relied upon in forming an opinion.
8. Expert witnesses bring to their forensic roles educational backgrounds derived from books, periodicals, and lectures. Therefore, an expert should be allowed to testify about any knowledge derived from lectures and conversations with colleagues which helped him form an expert opinion, since it is by assimilation of hearsay of this sort that expert opinions are, for the most part, made.
PRETRIAL PROCEDURE--depositions and discovery--discovery in general--discovery methods and procedure.
9. If a party had every opportunity to request, through interrogatories or depositions, that the opposing party's expert witness state the grounds for his opinion, but neglected to do so, that party cannot complain upon appeal about prejudice to it in the admission of the expert's testimony.
10. A motion for new trial may be granted where the movant's evidence manifestly outweighs the evidence introduced by the other party. However, if the ground for a motion for new trial is that the verdict is against the weight of the evidence and there is substantial evidence, more than a mere scintilla to support the verdict, the trial court should not grant the motion for new trial.
Ronald G.S. Au (Gerald H. Kurashima and Barbara A. Fabrey with him on the opening brief; Gerald H. Kurashima with him on the reply brief), Honolulu, for plaintiffs-appellants.
James P. Dandar (Janice Wolf with him on the brief), Honolulu, for defendant-appellee Jeannine St. Peter.
Paul T. Yamamura (Ortiz & Yamamura, of counsel), on the brief, Honolulu, for defendant-appellee John Kott.
Before BURNS, C.J., HEEN and WATANABE, JJ. WATANABE, Judge.
In this negligence case arising from an automobile accident, Plaintiffs-Appellants Ka Mee Lai, aka Rose Lai (Rose), and Narongsak Loesvaranurak, aka Steve Lai (Steve), (collectively, Plaintiffs) appeal from: (1) a December 5, 1989 order granting Defendant-Appellee John Kott's (Kott) motion for summary judgment, which dismissed all claims against Kott; (2) a November 2, 1990 judgment entered pursuant to a jury's verdict in favor of Defendant-Appellee Jeannine St. Peter (St. Peter); (3) a January 28, 1991 order denying Plaintiffs' motion for a new trial; and (4) a January 28, 1991 order granting in part and denying in part St. Peter's motion for costs.
We affirm.
On the evening of November 26, 1986, Rose was a front-seat passenger in a car which her husband, Steve, was driving east-bound on Wai'alae Avenue, near the Kahala Mall Shopping Center. Wai'alae Avenue leads to an on-ramp to Kalaniana'ole Highway. Rose testified that Steve drove to the end of the on-ramp, then stopped the car for several seconds to wait for traffic to clear, so that he could merge onto Kalaniana'ole Highway. 1 While stopped, Steve's car was struck from the rear by the vehicle driven by St. Peter. St. Peter, who was visiting Hawai'i with her husband, was driving a car owned by her cousin, Kott, a Honolulu resident. Kott, who was away on the mainland, had given St. Peter permission to stay at his home and use his car while she was visiting Hawai'i.
After the accident, which caused minimal damage to both automobiles, Rose walked to a nearby gas station and called the police. She did not complain of any injuries at the time, and declined medical attention.
However, in January 1987, Rose began experiencing back pain and, as a result, saw Dr. Clifford Lau (Dr. Lau) on February 25, 1987 for treatment. 2 Dr. Lau diagnosed Rose as having a tight hamstring and prescribed an anti-inflammatory drug.
In May 1987, Rose began treatment for back pain with Dr. Kurt Mariano (Dr. Mariano), a chiropractor. 3 On June 16, 1987, Dr. Mariano referred Rose to Dr. Kenneth Nakano (Dr. Nakano), a neurologist. Dr. Nakano performed various physical and neurological tests on Rose, but found no abnormalities. Dr. Nakano recommended physical therapy and referred Rose back to Dr. Mariano to make the necessary arrangements. Rose did not, however, receive physical therapy, although she continued to see Dr. Mariano until the end of July 1987, when she left for Hong Kong.
Rose returned from Hong Kong in December 1987, and on February 5, 1988, at the recommendation of her attorney, she saw Dr. K.C. Yeung (Dr. Yeung) at the Family Practice and Personal Injury Center. In March 1988, Dr. Yeung referred Rose to Dr. Cleveland Wu (Dr. Wu), who conducted an electromyograph test (EMG), which revealed an abnormality or irritation of Rose's lumbar five (L5) nerve root. Dr. Yeung continued to treat Rose until June 1988, when Rose became pregnant with her second child. While pregnant, Rose was involved in a second automobile accident on November 28, 1988. After Rose had given birth, Dr. Yeung resumed treating her on March 3, 1989.
On December 30, 1988, Plaintiffs filed a complaint against Defendants St. Peter and Kott, alleging that St. Peter acted negligently in operating the automobile involved in the accident and that Kott negligently entrusted the automobile to St. Peter. Plaintiffs sought special, general, and punitive damages for Rose's physical, mental, and emotional injuries, and for Steve's loss of consortium and mental and emotional anxiety.
The negligent entrustment claim against Kott was subsequently dismissed by stipulation of the parties; however, Plaintiffs amended their complaint to allege that St. Peter had acted as an agent, servant, or employee of Kott, who was therefore liable to Plaintiffs under the doctrine of respondeat superior. On December 5, 1989, the trial court granted Kott's motion for summary judgment and dismissed with prejudice all claims against Kott.
Prior to the commencement of a jury trial on September 24, 1990, the parties stipulated that St. Peter was responsible for the November 26, 1986 accident. The sole issue at trial, therefore, was whether the accident was the legal cause of Rose's injuries. When the jury answered this question in the negative, the circuit court entered judgment in favor of St. Peter. The circuit court subsequently denied Plaintiffs' motion for a new trial and granted, in part, St. Peter's motion for costs. This appeal followed.
According to Plaintiffs, the trial court committed several reversible errors. First, Plaintiffs contend that the trial court erred in granting Kott's motion for summary judgment. Second, Plaintiffs allege that certain testimony by an expert witness should not have been allowed at trial. Finally, Plaintiffs maintain that the trial court abused its discretion in denying their motion for a new trial. 4
Pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 56(c), a moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
According to Plaintiffs, the trial court improperly granted Kott's Motion for Summary Judgment because genuine issues of material fact existed as to whether St. Peter was employed by Kott and whether Kott was liable to Plaintiffs under the doctrine of respondeat superior. We disagree.
An "employee" is commonly and ordinarily defined as "one who works for a salary or wages under directions." In re Peck, 19 Haw. 181, 182 (190...
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