Yorita v. Okumoto

• Decision Date: 29 March 1982
• Docket Number: No. 7337,7337
• Citation: 643 P.2d 820,3 Haw.App. 148
• Parties: Graham YORITA, Individually and as Temporary Administrator of the Estate of Emmett Yorita, a deceased minor, and Sueko Yorita, Plaintiffs-Appellees, and Gerald Yorita, a minor, Evelyn Yorita and Nancy Yorita, Plaintiffs, v. Pete T. OKUMOTO, Defendant, and State of Hawaii, dba Hilo Hospital, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 820

643 P.2d 820

3 Haw.App. 148

Graham YORITA, Individually and as Temporary Administrator of the Estate of Emmett Yorita, a deceased minor, and Sueko Yorita, Plaintiffs-Appellees, and Gerald Yorita, a minor Evelyn Yorita and Nancy Yorita, Plaintiffs, v. Pete T. OKUMOTO, Defendant, and State of Hawaii, dba Hilo Hospital, Defendant-Appellant.

No. 7337.

Intermediate Court of Appeals of Hawai'i.

March 29, 1982.

As Amended April 1, 1982.

Syllabus by the Court

1. Where before it makes its motion for trial by jury or advisory jury the defendant has knowledge of facts suggesting the judge's bias or prejudice for the plaintiff, but the defendant waits until after the judge denies its jury motion and then moves for the judge's disqualification, it is not error for the judge, under Hawaii Revised Statutes § 601-7 (1976), to deny the motion for disqualification on the grounds of untimeliness.

2. The fact that an attorney, as a special deputy attorney general, previously represented the judge as judge and not as an individual does not under Hawaii Revised Statutes § 601-7(b) (1976) or the Hawaii Code of Judicial Conduct (March, 1977) disqualify the judge from hearing subsequent cases in which the attorney represents one of the parties.

3. Prior to January 1, 1981, and Rule 703, Hawaii Rules of Evidence, Chapter 626, Hawaii Revised Statutes (1976, as amended), the rule in Hawaii was that the opinion of an expert could not be based either in whole or in part upon the opinions, inferences, and conclusions of other witnesses, expert or not.

4. The introduction of evidence in rebuttal and in surrebuttal is a matter within the discretion of the trial court and appellate courts will not interfere absent abuse thereof.

5. Findings of fact are clearly erroneous unless supported by substantial evidence in the record. Substantial evidence is credible evidence which is of sufficient quantity and probative value to justify a reasonable person in reaching a conclusion. Even though the findings are supported by substantial evidence, they may be set aside on appeal if the appellate court decides that they are against the clear weight of the evidence or otherwise reaches a definite and firm conviction that a mistake has been made.

6. Rule 18(a)(1) of the Rules of the Circuit Court (1971) which requires each party at pretrial to disclose the names and addresses of all witnesses (including expert witnesses) that he (or she) intends to call must be scrupulously followed if we are to have fair trials.

Richard R. Clifton, Honolulu (William L. Fleming, Honolulu, with him on the brief, Cades, Schutte, Fleming & Wright, Honolulu, of counsel), for defendant-appellant.

Walter G. Chuck, Honolulu (Allison H. Lynde, Honolulu, with him on the brief), for plaintiffs-appellees.

Before HAYASHI, C. J., and PADGETT and BURNS, JJ.

BURNS, Judge.

In this negligence case, defendant State of Hawaii, dba Hilo Hospital, appeals the $400,000 judgment entered in favor of plaintiffs. We affirm.

On July 22, 1973, Emmett Yorita, born August 14, 1965, height 4 feet 3 inches, weight 423/4 pounds, was admitted to Hilo Hospital for a tonsillectomy and adenoidectomy. The operation was performed under general anesthesia by Dr. Pete T. Okumoto on July 23, 1973, commencing at approximately 7:35 a. m. and concluding at approximately While in the recovery room and sometime after the 8:35 a. m. check on his condition, Emmett suffered a respiratory arrest and a cardiac arrest. Circulation was restored at 9:00 a. m. and respiration was restored at 9:03 a. m., but Emmett never regained consciousness. He died on August 5, 1973.

8:00 a. m. Emmett was transported to the recovery room where one other tonsillectomy and adenoidectomy patient was being cared for. Emmett arrived at approximately 8:10 a. m., still [3 Haw.App. 150] anesthetized. The recovery room was staffed by registered nurse (RN) Clara May Swann and licensed practical nurse (LPN) Jill Fujimoto. Emmett resumed consciousness sometime between 8:10 a. m. and 8:13 a. m. Between the time he entered the recovery room and 8:35 a. m., Emmett's condition was within normal limits under the circumstances. The other patient was awake and coughing and required more attention from RN Swann who was standing between Emmett's gurney and the other patient's gurney.

On August 4, 1975, Emmett's father (individually and as temporary administrator of the deceased's estate), mother, two sisters, and brother brought a wrongful death action against the State of Hawaii, dba Hilo Hospital; Dr. Pete T. Okumoto, the surgeon; Bob Morikawa, the nurse anesthetist; and Dr. Richard Lundborg, the Chief of Anesthesiology at Hilo Hospital. Prior to trial, by stipulation and order, Morikawa and Dr. Lundborg were dismissed as defendants. Emmett's two sisters and brother were dismissed as plaintiffs during the trial.

On September 8, 1975, plaintiffs filed an amended complaint in which they demanded a jury trial against Dr. Okumoto, Dr. Lundborg, and Morikawa. Plaintiffs filed their pretrial statement on January 3, 1978. Circuit Judge Robert Won Bae Chang was assigned to this case on January 18, 1978. On August 28, 1978, the day jury selection began, Hilo Hospital moved for a jury trial of its portion of the case and cited Hawaii Revised Statutes (HRS) § 661-11 (1976). Plaintiffs objected and cited HRS § 662-5 (1976). The trial judge denied the motion. Hilo Hospital also moved for the use of an advisory jury and cited Rule 39(c), Hawaii Rules of Civil Procedure (HRCP). The court denied that motion too.

The jury found in favor of Dr. Okumoto. Immediately thereafter the judge found against Hilo Hospital and awarded damages as follows: to Emmett's estate, $200,000; to Emmett's father, $100,000; to Emmett's mother, $100,000.

The case we are deciding (No. 7337) involves Hilo Hospital's appeal of the judge's decision. In No. 7348, plaintiffs have appealed the jury verdict in favor of Dr. Okumoto but that case is not now before us.

I

Hilo Hospital contends that "(t)he trial judge erred in failing to disqualify himself" since Yorita's counsel, Walter Chuck, as a special deputy attorney general, had previously represented Judge Chang in negotiations with the alleged contemnor after Judge Chang had issued a contempt citation. Hilo Hospital argues that that was not just a case where Judge Chang was only a nominal party with no interest in the outcome, "but an unusual circumstance where (Judge) Chang and Chuck engaged in 'close conference' "; where settlement of the controversy involved Judge Chang's agreement; where in a subsequent and different legal proceeding Chuck asserted an attorney-client privilege with respect to matters involved in that representation; and where the "judge did not voluntarily disclose his prior relationship with plaintiffs' attorney...."

We must decide on the basis of HRS § 601-7(b), ¹ the relevant case law, and the Section 601-7(b), HRS, requires that a judge shall be disqualified whenever a party files a legally sufficient affidavit showing bias or prejudice but contains the critical requirement that the affidavit be timely filed before the hearing or the action or proceeding and, if not, that good cause shall be shown.

Code of Judicial Conduct, ² Canons 2A and 3C(1), ³ [3 Haw.App. 152] whether (1) Judge Chang had a "personal bias or prejudice" for the plaintiffs or against Hilo Hospital because of Chuck's previous representation of him, (2) his impartiality might reasonably be questioned, and (3) the affidavits were timely filed.

Here, the motion for disqualification was made (1) after various pretrial conferences had been conducted, (2) after the judge had ruled on various pretrial motions (3) on the day after the prospective jurors had taken their oath and voir dire had begun and (4) immediately after the judge had denied Hilo Hospital's request for trial by a jury or an advisory jury.

Although there is a statutory exception to untimeliness where good cause is shown, we hold that Hilo Hospital has not shown good cause. Good cause exists where the disqualifying facts were unknown to the party at the time of the proceeding and are newly discovered. Honolulu Roofing Co. v. Felix, 49 Haw. 578, 426 P.2d 298 (1967); In re Bouslog, an Attorney at Law, 41 Haw. 270 (1956).

Here, the record shows that immediately after the judge denied Hilo Hospital's request for a jury or an advisory jury, counsel for Hilo Hospital asked:

MR. BECK: Your Honor, may we have a short recess because I intend, in light of the Court's ruling on these two matters, I intend to make another motion and I would like to have time to consult with my client for just a few minutes before making such a motion.

The record further shows that the request for a short recess was granted and when the court reconvened, Hilo Hospital immediately moved for disqualification. Hilo Hospital's opening brief candidly admits why the motion was made when it was made: "Had that motion (for a jury or advisory jury) been granted, much of the concern about the judge's possible bias would have been obviated.... When it was denied, defense counsel felt obligated to raise the matter."

Clearly, Hilo Hospital knew of the matters of disqualification before it made its motion for trial by jury or advisory jury. Thus, the rule stated in In re Bouslog, an Attorney at Law, supra, at 274, applies: "Unless the matters of disqualification are unknown to the party at the time of the proceeding or are newly discovered, there can be no excuse for delaying the filing of the suggestion until after rulings are made in the matter, particularly where such rulings may be considered adverse to the movant."

Assuming the affidavits were timely filed or were within the good cause exception, the judge would then have the duty to Hilo Hospital argues that the proper test for disqualification is an objective one as to what a reasonable outsider would believe, not what the judge...