Hawaii Bar Journal - August 2022 by Hawaii Bar Journal

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Under the Hawaii Public Procurement Code, Haw. Rev. Stat. Chapter 103D, and the Revised Charter of the City and County of Honolulu, the City Council of the City and County of Honolulu is responsible for securing legal services from licensed private attorneys to provide legal advice and representation as special counsel for the Honolulu City Council and its officers and employees. The Honolulu City Council invites attorneys licensed in Hawaii and practicing on Oahu to submit Statements of Qualifications and Expressions of Interest for evaluation. Those private attorneys who are deemed qualified will be included on a list which will be used by the Honolulu City Council to select attorneys to provide necessary legal services. Following are the areas of law in which research and other legal services may be required by the Honolulu City Council during the period of July 1, 2022 to June 30, 2023. Attorneys may list other areas of practice, but are limited to no more than four areas. • Appellate Practice • Bond Counsel • Charter Authority • City Charter • Civil Rights • Condemnation • Constitutional Law • Criminal Law • Election Law • Employment Law, including Employee Benefits • Environmental Law • Government Contracts and Procurement, including Bid Protests, and State and Federal Procurement • Government Ethics • Home Rule

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Hawaii licensed attorneys interested in providing legal services in one or more of these areas are invited to submit a Statement of Qualifications and Expression of Interest. Attorneys from the same law firm wishing to be considered must submit separate statements. TO APPLY: Statement of Qualifications and Expression of Interest forms are available for download at http://www.honolulu.gov/ocs/default.html and may also be requested by telephone at 808-768-3875 or email at ocs@honolulu.gov. ALL MATERIALS must be emailed to ocs@honolulu.gov. Please indicate "Application for Attorney Services" in the subject line. HARD COPIES, CDs, or USBs WILL NOT BE ACCEPTED. Completed forms will be accepted through July 31, 2022 and should be submitted no later than 4:30 p.m., to receive full consideration for the above-stated period. Late submittals that meet all applicable criteria will be accepted, but will only be available for consultant selections conducted after the submittals have been reviewed and the service category qualification(s) determined.

TABLE O F C ON TE NTS VO LUM E 26 , N U M B E R 8

EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden Joseph Dane Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Eaton O'Neill Lennes Omuro Brett Tobin

ARTICLES 44

Expert Witnesses in Commercial Litigation: Shifting Sands by Paul Alston and Richard M. Crum

OF NOTE 24 20

Court Briefs

HSBA OFFICERS

HSBA Happenings

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Discipline Notices

President-Elect Rhonda Griswold Vice President Jesse Souki Secretary Lanson Kupau

Case Notes

Classifieds

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On the Cover: “Anuenue Fields”, 30” x 24” original oil painting (2004) by Susie Y. Anderson.

Anderson’s focus as a fine artist is to create paintings of interest, vitality and lasting beauty. The subjects that inspire her vary widely from the land and the sea, to florals and abstracts. Painting on location en plein air is Anderson’s passion. Whether her easel is inside the studio or on location, the goal is to preserve on canvas the ever-transforming landscape of Hawaii and beyond. To see more of her art, please visit www.susieanderson.com Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

A. Understanding Expert Witnesses Qualifying a witness “cloaked with the mantle of an expert” provides two important advantages.3 First, under certain circumstances, an expert can Failing to understand the nurely on, and testify about, hearsay anced rules regarding expert witness and other evidence which would othtestimony and reports can be the erwise be inadmissible. Second, an death of a case. Millions of dollars expert’s opinions often carry special by Paul Alston and Richard M. Crum can hinge on the decisions lawyers weight with the jury. Expert witness testimony is govmake regarding such testimony and erned by Federal Rules of Evidence (FRE) Rule 702 in federal reports. As the rules of civil procedure and case law surrounding expert witnesses evolve, it is imperative to stay abreast. courts and by the Hawai‘i Rules of Evidence (HRE) Rule 702 An article written over 20 years ago stressed that choosing in Hawai‘i state courts. The table on page 6 provides the rule well-qualified experts is an essential aspect of effective case text and case law basis for the two rules. management.1 Those principles remain important, but there are new rules, procedures, and pitfalls. 1. Federal Rules of Evidence Rule 702: the Daubert In October of 2020, the Supreme Court of the State of Standard Hawai‘i (Hawai‘i Supreme Court) amended the Hawai‘i Rules The FRE and the United States Supreme Court require a 2 of Civil Procedure (HRCP). Applicable to cases filed after trial judge to work actively as a gatekeeper to exclude irreleJanuary 1, 2022 (unless the parties agree otherwise), these vant or unreliable expert testimony.4 Unlike other evidence, amendments changed certain discovery rules, which affect reexpert testimony is closely scrutinized before the merits of a quired disclosures and deadlines as they relate to expert witcase are litigated. Given that the exclusion of an expert means nesses. The following analyzes those changes and compares evidence will not reach a jury and that, in some cases, a case them to past versions of the HRCP and the current Federal will never be decided on the merits, a good trial lawyer must Rules of Civil Procedure (FRCP). Additionally, we highlight be prepared to attack and defend a proffered expert at every trends in motions practice and recent rulings regarding stage of litigation. expert issues. The Supreme Court articulated the standards governing Ed. Note: This article updates and expands upon a prior article published in the February 2002 Issue of the Hawaii Bar Journal authored by Paul Alston and his then-associate Julie M. Wade.

Expert Witnesses in Commercial Litigation:

Shifting Sands

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Expert Testimony Rules

FRE Rule 702

HRE Rule 702

Rule Text (nuanced differences in italics)

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.”

business litigation are not scientific experts, their reports and testimony must in any event meet the requirements of Daubert and FRE 702.

2. Hawai‘i Rules of Evidence Rule 702: Somewhere Between a) the expert’s scientific, techniDaubert and Frye cal, or other specialized knowlThe Hawai‘i Supreme Court has edge will help the trier of fact to understand the evidence or to “neither expressly approved nor redetermine a fact in issue; jected”8 Daubert and has rejected the type of demanding gatekeeping that it b) the testimony is based on sufficient facts or data; requires.9 HRE Rule 702 has not been amended to reflect the Daubert c) the testimony is the product of relistandard;10 instead, it remains identiable principles and methods; and cal to the pre-2000 version of FRE d) the expert has reliably applied the Rule 702 apart from an amendment principles and methods to the facts of the case.” that permits a trial judge to assess the “trustworthiness and validity of the Daubert v. Merrell Dow PharmaceuFrye v. United States, 293 F.1013 Case law genesis of the rule scientific technique” used by an exticals, Inc., 509 U.S. 579 (1993) (D.C. Cir. 1923) (finding expert (creating the FRE 702 factors). testimony admissible if based on pert.11 Essentially, even now, HRE a generally accepted, reliable Rule 702 reflects the rule established scientific technique). in Frye v. United States.12 Under the Frye standard, which the Hawai‘i Supreme expert testimony in Daubert. The Court explained that: Court adopted in State v. Montalbo,13 expert evidence (including nonscientific expert testimony and opinions) is admissible if it [A] gatekeeping role for the judge, no matter how flexible, is grounded on a scientific technique generally accepted as reliinevitably on occasion will prevent the jury from learning able within the scientific community.14 of authentic insights and innovations. That, nevertheless, However, this does not mean that Daubert is irrelevant in is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but state court cases. The Hawai‘i Supreme Court ruled in State v. for the particularized resolution of legal disputes.5 Vliet that the United States Supreme Court’s interpretation of FRE Rule 702 and its amendments are instructive in interpretTypically, experts in commercial litigation are accounting and applying HRE Rule 702.15 Despite that, Vliet has not ants, economists, social scientists, and marketing executives. spawned the fixation on pre-trial gatekeeping, which is These experts are not “scientific” in the traditional sense. the hallmark of federal court litigation over expert Still, the Supreme Court has said Daubert applies to all extestimony.16 perts, not just scientists.6 In 2000, FRE Rule The complexity of this 702 was amended to incorporate scheme is further complicated the Daubert standards.7 by the recent Therefore, while many amendment experts used in federal to

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HRCP 26 (the “New Rule 26”), discussed in detail in part B. The New Rule 26 imposes new requirements for initial disclosures, expert report requirements, supplementation, the extent to which expert opinions are privileged, and the deadlines for disclosure of expert opinions and supplementation thereto.17 On one hand, the New Rule 26 is quite similar to FRCP Rule 26 both in form and substance.18 Yet the changes reflected in the New Rule are procedural, not substantive, and must be evaluated in light of the Hawai‘i Supreme Court’s decision in Vliet to “expressly refrain” from adopting Daubert wholesale19 and the fact that HRE Rule 702 has not been amended to adopt the substantive factors of Daubert as FRE Rule 702 has.20 In State v. Maelega, the Hawai‘i Supreme Court explained that the Daubert standard essentially incorporated Frye as “an important factor” in determining whether expert testimony should be admitted at trial, saying the only material difference between the two tests was that Daubert requires “widespread” rather than “general” acceptance in a scientific community.21 This comparison of Daubert and Frye casts the pair of cases as fraternal twins, with little to distinguish the substantive standards.22 Since Daubert, the intensity and scope of attacks on experts have increased greatly. Instead of letting the jury evaluate marginal experts, courts are keeping them out of the courtroom altogether. Therefore, when offering an inwith expert (1) beWith awarethe of equipment and comply pthe jurisdiction’s procedural requirements; (2) avoid pitfalls such as those surcould easily and safely rounding anThey expert’s qualifications, p supplementation of reports, and undue prejudice; and (3) keep abreast of evolving issues with regard to expert witnesses T in litigation. The number of court r

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B. Procedural Requirements: Similarities and Differences Lawyers practicing in Hawai‘i must now know three different sets of rules regarding expert witnesses. The first is the New Rule 26. For Hawai‘i state court cases filed on or after January 1, 2022, the recently amended New Rule 26— which mirrors the FRCP Rule 26 in some ways and diverges in others—applies.23 Second is the “Old Rule 26”; for cases filed on December 31, 2021 or earlier, the previous iteration of HRCP Rule 26 still applies.24 Third is the Federal Rule 26. For matters filed in United States District Court of Hawai‘i, the FRCP, as amended in 2020, apply.25 Knowledge of these rules may aid a discerning attorney in deciding whether to file in state or federal court, depending on the anticipated use of expert witnesses in the litigation. Most importantly, a lack of knowledge of the key differences between the rules could result in a nightmare scenario: a missed deadline, an unhappy judge, and an irate client asking “what do I pay you for, anyway?” To help navigate these rules, the following addresses the differences between the Old, New, and Federal Rules and the issues these different rules present. 1. Initial Disclosures There are some minor differences between the Old, New, and Federal Rules regarding initial disclosures. Although initial disclosures do not directly concern expert witness discovery, the use of expert witnesses is invariably tied to the entire litigation and discovery process. Awareness of deadlines involving non-expert witnesses and other discovery materials can help a savvy litigator plan ahead and set concrete, internal deadlines to seek and hire experts that can assist with framing other discoverable information for the finder of fact. The Old Rule 26 allows for the discovery of any non-privileged matter

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Initial Disclosures

Deadline to disclose non-expert witnesses and other discovery information:

Old HRCP Rule 26

New HRCP Rule 26

For cases filed Dec. 31, 2021 or earlier.

For cases filed Jan. 1, 2022 or later.

• No deadline prescribed by the HRCP; as ordered by the court and/or stipulated to by the parties.

• 14 days after Rule 26(f) conference.

• 30 days after being served or joined for parties served or joined after the Rule 26(f) conference.

• Same as FRCP.

before trial.26 Yet, under the Old Rule 26, there is no compulsory requirement that a party “shall” produce this information by a certain date before trial. Instead, parties “may” file discovery requests (interrogatories, requests for production of documents) under the Old Rule 26 to obtain expert witness-related information.27 Under the New Rule 26, parties must now make initial disclosures, without awaiting discovery requests, at or within 14 days after the Rule 26(f) discovery conference.28 A party joined or served after the discovery conference is given a longer, 30-day period in which to make initial disclosures.29 Litigants now have a duty to disclose their anticipated non-expert witnesses, documents, electronically stored information, and the like, before trial. This duty is a key distinction between the Old and New Rules. The FRCP aligns with the New Rule 26: initial disclosures must be made 14 days after the Rule 26(f) discovery conference, or 30 days after being served or joined for parties who join after the conference.30 The chart above demonstrates the differences between the three rules regarding initial disclosures. 2. Expert Disclosures – Required Reports The Old and New Rules have significant differences regarding requirements

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FRCP Rule 2

For cases filed in the U.S. Dist. of Haw. • 14 days after Rule 26(f) conference.

• 30 days after being served or joined for parties served or joined after the Rule 26(f) conference.

for certain experts, rather than others, to produce expert witness reports. The New Rule 26 largely follows the Federal Rule. The Old Rule 26 is quite broad and allows the discovery of facts and opinions of experts via interrogatories or by deposition upon a showing of exceptional circumstances, where it is impracticable for the party seeking the information to obtain it by other means.31 The New Rule 26 closely mirrors the FRCP Rule 26 requirements for expert disclosures. First, hired experts and witnesses who regularly give testimony under HRE Rule 702, must provide written reports under the New Rule 26 without discovery requests.32 These reports must include typical expert report information: the opinions to be offered and the bases and reasons for each opinion; facts and data considered in forming the opinions; a statement of compensation paid; witness qualifications and a list of publications from the 10 previous years; and case names and docket numbers where the witness has provided expert opinions or testimony in the three years preceding the date of the written report.33 The FRCP require the same information as the New Rule 26, except the witness must list all cases during the previous four years rather than three.34

3. Expert Disclosures – No Report Required The Old and New Rule 26 also differ in terms of specifying which experts, if any, need not produce expert reports. Again, the New Rule 26 largely follows the FRCP. The Old Rule 26 makes no distinction between “report required” and “no report required” expert witnesses, and the opinions of experts are discoverable to the extent a party can make a showing of exceptional circumstances, making it impracticable to seek the expert’s opinions elsewhere as discussed in Part B2.35 Under the New Rule 26, unretained expert witnesses, who a party reasonably expects to call to present evidence under HRE Rule 702, must be disclosed without a discovery request, along with the following information: (1) name, and address and telephone number if known; (2) the subject matter the witness is expected to present evidence on; and (3) a summary of the facts and opinions the witness is expected to testify about.36 Again, the FRCP is largely consistent with the New Rule 26 except that the federal rules cite FRE Rules 702, 703, and 705 as the controlling rules governing the evidence provided by experts.37 Put another way, the table on page 14 demonstrates the similarities and differences between the three sets of rules regarding expert disclosures. 4. Supplementation Supplementing expert opinions and reports is an area of minor variety among the three sets of rules and rife with pitfalls as discussed in Part C. The Old Rule 26 imposes no general duty to supplement discovery requests but makes an exception for experts. A party must seasonably supplement responses to questions regarding (1) the identity of people who have discoverable knowledge and (2) the identity

of people expected to be called as expert witnesses.38 This duty extends to the subject matter that such experts are expected to testify about and the substance of their testimony.39 The court may order supplementation as it sees fit. The New Rule 26 is short and simple regarding the duty to supplement disclosures: a party must supplement or correct disclosures in a timely manner if the party learns the disclosure is incorrect or incomplete in some material way, unless the information has otherwise been made known to the other parties during the discovery process.40 A holdover from the Old Rule 26, the court may also order supplementation as it sees fit.41 The FRCP requires supplementation similar to the New Rule 26, but adds a duty to supplement information included in experts’ depositions.42 The deadline for supplementation is tied to the deadline for pretrial disclosures under the FRCP.43 The table on page 15 compares the supplementation rules side-by-side. 5. Privilege One of the most important changes from the Old Rule 26 and the New Rule 26 involves the privilege afforded to expert witness communications. The New Rule 26 and the Federal Rule afford privilege protection to communications between the party’s attorney and a retained expert witness, while the Old Rule 26 does not. The Old Rule 26 burdens the party seeking to withhold sought materials from discovery with a duty to explain why such materials are privileged.44 This duty requires a party claiming privilege over certain materials to describe the nature of the information so that the party seeking discovery can assess the applicability of the asserted privilege.45 The Old Rule 26 is, therefore, much less forgiving to an unwitting litigator, who is not careful about managing

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expert-related materials because they are potentially discoverable. The Old Rule 26 affords no privilege to communications between expert witnesses and attorneys.46 The most significant shift in the New Rule 26 are the privilege protections afforded to communications with experts and draft reports. The New Rule 26, following the FRCP, protects communications between a party’s attorney and “any witness required to provide a report” under the rule regardless of the form of the communications.47 This protection does not extend, of course, to information that must be disclosed under the New Rule 26 such as compensation information, facts or data considered by the expert, or assumptions that the party’s attorney provided and the expert relied on to form their opinions.48 The scope of the privilege protections is outlined in New Rule 26(b)(4), which states in relevant part, “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” The FRCP is identical to the New Rule 26 and protects communications between a party’s attorney and retained experts, regardless of the form of the communication.49 (See table on page 18). 6. Deadlines for Expert Disclosures Possibly the most perplexing area of contrast between the three rules are the deadlines for expert disclosures. The Old Rule 26 is rather simple and generalized. Under the Old Rule 26, disclosure deadlines are generally discussed, set, and agreed upon either by stipulation after a Rule 26(f) discovery conference or by court order.50 One of the more unique elements of the New Rule 26 are the three different deadlines associated with expert disclosures. The New Rule 26 has distinct

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Expert Disclosures

Experts who must provide a written report:

evidence is intended solely to contradict evidence offered by an opposing party’s expert, within 30 days after the other party’s disclosure.54 A demonstrative is most helpful for rules with little direct overlap (See table on page 19).

Old HRCP Rule 26

New HRCP Rule 26

FRCP Rule 26

For cases filed Dec. 31, 2021 or earlier.

For cases filed Jan. 1, 2022 or later.

For cases filed in the U.S. Dist. of Haw.

• No distinction between experts requiring or not requiring a report.

• Must be provided without discovery request for retained experts.

• Must include: opinions to be offered, facts and data considered, qualifications and 10 previous years of publications, cases worked on in previous 3 years.

• Must include: opinions to be offered, facts and data considered, qualifications and 10 previous years of publications, cases worked on in previous 4 years.

• Expert opinions and/or reports potentially discoverable if a party can make a showing of exceptional circumstances and impracticability.

• Almost identical to FRCP. Experts who are not required to provide a written report:

• No distinction between experts requiring or not requiring a report. • Expert opinions and/or reports potentially discoverable if a party can make a showing of exceptional circumstances and impracticability.

• Unretained experts a party reasonably expects to call to present evidence.

• Must be disclosed without discovery request.

• Must disclose (1) name, (2) subject matter expected to present on, (3) summary of the facts and opinions expected to testify about.

• Same as FRCP.

deadlines set depending on the nature of the underlying case. First, if a party has the burden of proof on a claim for relief or an affirmative defense, they must serve the related disclosures no later than 120 days before the date set for trial.51 Second, and relatedly, a party opposing a claim for relief or affirmative defense must serve related disclosures no later than 90 days before the date set for trial.52 Finally, for a party seeking to present evidence solely to rebut evidence on a subject matter identified for the first time by the 90 day disclosure deadline above, related disclosures must be served no later than 60 days before the date set for trial.53

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This portion of the New Rule 26 provides a roadmap for rebuttal expert report gamesmanship, but also presents scheduling complications. For example, a party could find themselves rushing to prepare expert disclosures four months before trial only to have the trial rescheduled by the court. This disclosure could give an opposing party invaluable insight into a party’s theory of a case, potentially using the party’s work with their experts against the party. The FRCP offers a simplified version of the New Rule 26 deadlines. Absent a stipulation or court order, expert disclosures must be made at least 90 days before the date set for trial or, if the

C. Pitfalls and Cutting Edge Issues Keeping track of three different rule sets—across multiple cases, in different jurisdictions—is a minefield. The consequences of a misstep in a minefield can be grave. Because the New Rule 26 has only been in effect since January 2022, it will take time before any latent issues within the rule bubble up in Hawai‘i state courts. The following outlines expert-witness-related pitfalls uncovered in recent federal motions and rulings. These pitfalls may prove instructive for litigators trying to maneuver under the New Rule 26, given the similarities between it and the Federal Rule.

1. Rules of Evidence 702 and 403 Even if an expert qualifies under FRE Rule 702, there remains the FRE Rule 403 hurdle, which allows a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”55 An expert may be the most qualified person to testify about the minutiae of their respective field, but if the court exercises its 403 powers and deems the testimony confusing or prejudicial, the testimony will never be heard by the trier of fact. An expert opinion that “undertakes to tell the jury what result to reach . . . does not aid the jury in making

a decision, but rather attempts to substitute the expert’s judgment for the jury’s.”56 The Supreme Court cautioned in Daubert, “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.”57 Even a diligent attorney who thoroughly vets their experts and complies with all the procedural rules may be faced with a judge who excludes their expert under Rule 403. The issue exists in Hawai‘i state court, as well. Even if an expert is qualified under HRE Rule 702, HRE Rule 403 gives judges the same power to exclude that expert under FRE Rule 403.58 This is yet another consideration when choosing experts and preparing a case for motions practice. 2. Gaps in Time: New Data and Old Conditions In Kim v. Crocs, Inc., Defendant Otis Elevator Company moved to preclude an expert report and testimony regarding the conditions of an escalator where the observations informing the report were taken three and a half years after an incident resulting in injuries to a minor.59 In that motion, defendants argued that expert opinions “based on extrapolating conditions on the date of injury from observations made years later must be excluded as utilizing an unreliable methodology.”60 Plaintiffs’ expert in Kim formed opinions about the conditions present at an escalator in 2014 based on the condition of the same escalator in 2018.61 The court later excluded the expert’s opinions because his 2018 observations lacked the “requisite logical connection” to the conditions that existed in 2014.62 The gap in time between when an incident actually happens versus when it

Supplementation

Duty to supplement expert reports and/or testimony:

Old HRCP Rule 26

New HRCP Rule 26

FRCP Rule 26

For cases filed Dec. 31, 2021 or earlier.

For cases filed Jan. 1, 2022 or later.

For cases filed in the U.S. Dist. of Haw.

• No general duty to supplement. • Must “seasonably” supplement responses to questions, identity of anticipated expert witnesses, subject matter and substance of expert testimony. • Court may order supplementation.

is litigated is not insignificant. In some scenarios, it may be years before a lawyer is retained and abreast of the facts and issues of a case, and before experts are even approached to conduct studies of the incident giving rise to the litigation. However, if expert reports and opinions are too far removed from the date of an incident, they risk being excluded as unreliable. To avoid this catch-22 situation, a savvy attorney must analyze the need for expert reports and testimony essentially from the moment a case comes in the door. Time is of the essence. Changes in conditions are subsumed within the issue of gaps in time. As time passes, it is entirely possible that conditions of a subject examined by an expert will change. As in Kim, it may be difficult to say with certainty that an escalator was operating the same way in 2014 as it was in 2018. On the other hand, where an expert evaluates conditions that are constant over time, their opinions and reports may be considered more reliable. For example, a United States District Court (USDC) in the Eastern District of Louisiana held where an expert reviews the physical layout of a building and the maintenance procedures employed are unchanged over a period of years, the passage of time will not prevent the expert from reaching reliable

• Duty to supplement in • Duty to supplement in a timely manner for a timely manner for incorrect or incomplete incorrect or incomplete statements. statements. • Court may order • Duty expressly extends to supplementation. supplement depositions. • No express duty to supplement depositions. • Similar to the FRCP.

and reasonably accurate conclusions.63 Compare this conclusion, however, to a USDC in the Northern District of Mississippi finding that changes in the conditions of doors in the 18 months between an alleged incident and an expert’s inspection render the inspection irrelevant, and potentially misleading to a jury.64 The Mississippi court emphasized, “it’s what was happening at the time of the accident that counts.”65 These decisions were relied on in the Kim case in the District of Hawai‘i in an Order Granting in Part and Denying in Part the defendants’ Daubert motion.66 These examples require lawyers to be vigilant in assessing even the degree to which time is of the essence in their respective cases when it comes to experts. If the conditions of some mechanism within an escalator or a door are key factual issues, hiring and deploying an expert to examine these conditions should likely happen as soon as possible. Conversely, if a premises is unlikely to change substantially over time, courts may give more deference to a long-afterthe-fact examining expert’s opinion. 3. Misusing Daubert as a Vehicle for Summary Judgment Not only must lawyers understand the correct application of the rules surrounding experts, but they must be able

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to spot the abuse and misuse of the rules by crafty opposing counsel. Some litigators may try to misuse a motion to exclude expert testimony, also known as a Daubert motion, to seek summary judgment. Where an expert opinion “delve[s] too deeply into claim construction,” it may be properly stricken.67 Conversely, where a party argues that an expert’s opinions are simply wrong “as a matter of law” in a Daubert motion, the party is functionally seeking an improper second summary judgment motion.68 For example, in Huawei Technologies. v. Samsung Electronics, the court noted that arguing an expert’s opinion is “wrong as a matter of law” is an issue that should be presented in a motion for summary judgment, rather than a Daubert motion.69 Similarly, in Finjan, Inc. v. Sophos, Inc., the court denied a Daubert motion in part when Sophos argued that an expert failed to explain why certain claim limitations were not met.70 Sophos’ argument failed, according to the court, “because it amounts to an improper second summary judgment motion.”71 No minefield would be complete without traps, and the creative if not cunning use of Daubert motions must be guarded against in commercial litigation. 4. Supplemental Reports: Bolstering versus Sandbagging Parties are required to supplement or correct disclosures under the Old, New, and Federal rules. Supplementation plays an important role in the discovery process, ensuring that the information available to both sides is as complete as possible. However, supplementing can and has been used as a tactic to sandbag opposing counsel. The court in Lindner v. Meadow Gold Dairies, Inc. noted that the obligation to supplement or correct disclosures “does not give license to sandbag one’s opponent with claims and issues which should have been included in the expert witness’

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report[.]”72 The court further noted that supplemental expert reports have been rejected where they were either “significantly different” from an expert’s original report, or where they are attempts to bolster a prior report.73 Supplementation has limits. Litigators may not “create a loophole through which a party who submits partial expert witness disclosures, or who wishes to revise her disclosures in light of her opponent’s challenges to the analysis and conclusion therein, can add to them to her advantage after the court’s deadline for doing so has passed.”74 These limits combined with the multiple sets of supplementation deadlines one must keep track of makes the practice of coordinating with hired experts all the more difficult. There is a fine line to tread here. Although it may be tempting for experts to add new information to their

supplemental reports to counter criticisms by an opposing attorney, unnecessarily bolstering a prior report may ultimately result in exclusion.75 However, because there is a duty to provide supplemental information, one cannot over-tailor supplemental reports and must divulge newly acquired information in a timely fashion. There is no perfect, one-size-fits-all solution to navigating the duty to supplement expert reports, and supplementation must be done carefully on a case-by-case basis. 5. The Need for Specificity: Qualifications Because expert testimony and reports deal with extreme factual minutia of a case, courts are growing increasingly particular and specific about expert qualifications. When picking experts, beware of qualifications. Generally, experts are

only those with sufficient “knowledge, skill, experience, training, or education.”76 The federal court in Hawai‘i has applied this requirement strictly, excluding an expert’s testimony because he lacked the appropriate credentials. In Krizek v. Queen’s Medical Center,77 the court excluded a doctor from testifying about the appropriate standard of care in a medical malpractice suit. There, the doctor was asked to opine on a patient’s treatment at the hands of Queen’s Medical Center and the appropriate standard of care Queen’s should have employed.78 In late 2015, the patient, experiencing weakness, leg pain, chills, and nausea, was admitted to Queen’s emergency room (ER).79 Eight hours later, she was assigned to the ICU, and she was presumptively diagnosed with Wernicke’s encephalopathy, a disease associated with vitamin B1 deficiency.80 About a

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Privilege

How privilege may be asserted:

Old HRCP Rule 26

New HRCP Rule 26

FRCP Rule 26

For cases filed Dec. 31, 2021 or earlier.

For cases filed Jan. 1, 2022 or later.

For cases filed in the U.S. Dist. of Haw.

• No privilege.

• Privilege for communications • Duty to supplement in with experts, regardless of a timely manner for form. incorrect or incomplete statements. • Affords protection similar to that afforded to attorney • Duty expressly extends to confidential work product. supplement depositions. • Privilege does not extend to compensation information, facts or data considered in forming expert opinions, or assumptions the party’s attorney provides to and are relied upon by experts. • Identical to FRCP.

month later, while still at Queen’s, she died.81 The doctor concluded that the hospital, in fact, violated the standard of care because it did not administer enough vitamin B1 early in the patient’s treatment.82 The court ultimately precluded some of the doctor’s testimony,83 holding there was a distinction between “emergency medicine” and “critical care medicine”.84 Though the doctor had a thirty-year career, produced “extensive” medical scholarship about pulmonary and respiratory diseases, was formerly

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board certified in critical care medicine, and spent much of the past nine years working with ICU patients, the court said he was unqualified.85 He was unqualified because he lacked the “credentials to testify as an expert in the prevention of Wernicke’s encephalopathy in the practice of emergency medicine”—as opposed to prevention of Wernicke’s encephalopathy in the practice of critical care medicine.86 The court drew this conclusion while acknowledging that, normally, the evidence rules “contemplate[] a broad conception of expert qualifications[.]”87

Moreover, the court acknowledged that, often “a physician in general practice is competent to testify about problems that a medical specialist typically treats.”88 Still, being a physician in one specialty does not qualify that physician as an expert in another.89 The doctor did not practice emergency medicine, he was not certified in emergency medicine, he had not published in emergency medicine, and “most importantly” he had no experience in the “treatment of Wernicke’s encephalopathy in an emergency room setting.”90 To be sure, in a decision entered just a year later in 2021, the District of Hawai‘i clarified the Krizek ruling.91 In Warren v. United States, the court opined that Krizek did not impose a “brightline rule.”92 Instead, Krizek must be read as “an individualized assessment” of the expert’s knowledge, skill, experience, training, and education.93 The court then found that a neonatologist94 was indeed qualified to opine on the standard of care applicable to a pediatric surgeon.95 Perhaps these two decisions and their different outcomes tell us what we already know: the Daubert inquiry is an individualized one, finely tuned to the facts of each case. Still, these cases should remind litigants that not just any learned expert gets past the gatekeeper.

Time to Disclose Expert Testimony

Deadline imposed by the rules:

Old HRCP Rule 26

New HRCP Rule 26

FRCP Rule 26

For cases filed Dec. 31, 2021 or earlier.

For cases filed Jan. 1, 2022 or later.

For cases filed in the U.S. Dist. of Haw.

• No deadlines set by the • 120 days before trial rule. where party has burden of proof on a claim or • Deadlines typically set an affirmative defense. by stipulation, at Rule 26(f) conference, or by • 90-day deadline when court order. opposing claim or affirmative defense. • 60-day deadline rebutting party’s expert report (must be in opposition to a Rule 26(a)(2)(C)(ii) disclosure).

6. The Need for Specificity: Seeking Relief Courts also require specificity when a movant asks to exclude expert testimony and will not do the work for an attorney who vaguely or broadly asks for exclusion. In Alcatel USA, Inc. v. Cisco Systems, Inc., the court denied a motion to exclude expert testimony because the movant failed to identify specific portions of the expert’s 50-page report containing improper opinions.96 Similarly, in Kendall Dealership Holdings, LLC v. Warren Distribution, Inc., the court denied a motion to exclude where the movant provided vague categories of documents but did not specify a single document or statement it sought to exclude.97 Reviewing highly technical and particular issues raised in expert testimony requires a discerning eye, and the fate of a case may turn on the specificity with which lawyers choose their experts or their prayers for relief in Daubert motions. D. Conclusion Since Daubert and Kumho, there has been an increase in the importance and complexity of disputes over the admissibility of expert testimony. In Hawai‘i, the New Rule 26 adds even more layers of difficulty for a practitioner balancing multiple cases subject to three distinct

• Simple, when compared to the New Rule 26. • 90 days before trial. • Within 30 days after other party’s disclosure, if solely to rebut other party’s report.

sets of rules. Lawyers who master the rules surrounding experts will significantly increase the prospects of obtaining a winning outcome for their clients at trial. Those who strive for excellence will keep track of cutting edge issues in this area and develop creative strategies to avoid the many dangers presented by expert witnesses in commercial litigation. __________________

Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial

Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, HI 96813

Phone:

808.523-1234

judgefoley2000@hotmail.com

www.dprhawaii.com

1 Paul Alston & Julie M. Wade, Non-Scientific Expert Witnesses in Commercial Litigation: New Battlegrounds, HAW. B.J., FEBRUARY 2002, at 6. 2 Press Release, Hawai‘i State Judiciary, New Court Rules Designed to Improve Civil Litigation in Hawaii Circuit Courts (Oct. 8, 2020), https://www.courts.state.hi.us/news_and_reports/2020/10/new-court-rules-designed-toimprove-civil-litigation-in-hawaii-circuit-courts. Due to the pandemic, the effective date of these amendments was delayed until January 1, 2022. Order Further Amending the Hawai‘i Rules of Civil Procedure, In re Hawai‘i Rules of Civil Procedure, SCRU-11-0000051 (Aug. 3, 2021) (Dkt. 48), https://www.courts.state.hi.us/wp-content/uploads/2021/08/2021_hrcp16_16.1_26_29am_ ada2.pdf. 3 Jinro America, Inc. v. Secure Investments, Inc., 266 F.3d 993 (9th Cir. 2001). 4 See Fed. R. Evid. 702; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). 5 Daubert, 509 U.S. at 597. 6 Kumho Tire, 526 U.S. at 149; see also State v. Vliet, 95 Hawai‘i 94, 106, 19 P.3d 42, 54 (2001).

(Continued on page 30)

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COURT B RIEF S UH Law & Justice Students Participate in Courts in the Community

Elect Rhonda L. Griswold, Hawaii State Trial Judges Association President Judge Summer M.M. Kupau-Odo, and Senate President Ronald D. Kouchi. Park-Hoapili and Shaw will serve six-year terms.

Big Island Drug Court Celebrates 20 Years of Success During National Drug Court Month

High school students participating in the William S. Richardson School of Law’s “Law & Justice Summer Program” attended a Supreme Court oral argument at Aliiolani Hale on June 8. They were the first in-person participants in the Judiciary’s Courts in the Community program in more than two years. Twelve students representing Campbell, Kalani, McKinley, Nanakuli, Waianae, and Waipahu high schools were in the gallery with program leaders Professor Liam Skilling and Kari Carolan, and seven law students who served as mentors to the high school students. The Hawaii State Bar Association and the Hawaii State Bar Foundation generously provided the students, faculty, and mentors with lunches and transportation to and from the courtroom.

Park-Hoapili and Shaw Sworn-in as First Circuit Judges

A limited in-person crowd and many more family, friends, and colleagues watched the livestream as Shellie K. Park-Hoapili was sworn-in as District Court Judge and Natasha R. Shaw as District Family Court Judge. Both judicial positions are in the First Circuit. Chief Justice Mark E. Recktenwald presided over the June 9 ceremony. Guest speakers were: Judicial Selection Commission Chair Nadine Y. Ando, Hawaii State Bar Association President20 August 2022

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The Hilo Drug Court celebrated five graduates at the Big Island Drug Court’s 61st Graduation Ceremony on May 12. Drug Court Judge Peter Kubota and Third Circuit Chief Judge Greg Nakamura (retired) commended them on their new life skills and achievements. Drug Court team members and staff also took the opportunity to acknowledge the graduates for their commitment to a better future. Since 2002, 355 men and women have completed the Big Island Drug Court program. Approximately 90 percent have remained conviction-free of felony offenses for at least three years after graduation.

Maui and Molokai Celebrate National Drug Court Month 2022

Drug Court team members congratulated the Maui Drug Court’s 78th graduating class on May 19. Attendees included Maui County Prosecutor Kenton Werk, Maui Police Department Officer Sonnie Waiohu, and Judge Kelsey T. Kawano, along with State Public Defender Mariana Lowy-Gerstmar, Judge Adrianne N. Heely, Maui Police Department Sgt. Jan Pontanilla, and Second Circuit Chief Judge Peter T. Cahill.

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H SBA HAP PE NIN GS HSBA Board Action The HSBA Board took the following actions at its meeting in May: • Adopted the recommendation of the Executive Committee to approve the Civic Education Committee’s funding request of $2,508 for a project that would provide breakfast and lunch for participants in the 2022 Richardson Law & Justice Program; • Adopted the recommendation of the Executive Committee to (1) approve the Senior Counsel Division’s request for a proposed amendment to the HSBA Constitution and Bylaws to add a new Article that recognizes the Senior Counsel Division as a formal entity of the HSBA; and (2) give notice to members of this proposed amendment; • Adopted the recommendation of the HSBA Nominating Committee to reappoint the following individuals to the Board of the Legal Aid Society of Hawaii for a term of 3 years beginning July 1, 2022: Catherine Aubuchon (reappointment) Ian Jung (reappointment) Jacob Matson (reappointment) Arsima Muller (reappointment) • Adopted the recommendation of the Nominating Committee to appoint the following individual to complete an unexpired term on the Legal Aid Board ending June 30, 2023: Ted Hong (new appointment) • Voted to establish a subcommittee of the Board to review the bar passage rate in Hawaii in response to the Hawaii Supreme Court’s request for comment on a proposed reduction in the minimum passing score from 133 to 130 on the Hawaii Bar Exam.

Proposed Amendment to HSBA Constitution and Bylaws The HSBA Board recommends approval of a proposed amendment to the

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HSBA Constitution and Bylaws that would add a new Article to officially recognize the Senior Counsel Division as a formal entity of the HSBA. This proposed amendment will be voted upon at the HSBA Annual Meeting to be held in conjunction with the virtual Bar Convention on October 14, 2022. See proposed new Article at https://bit.ly/3tFGjlV.

Member Benefits Spotlight F45 Pearlridge (New Member Benefit) F45 Pearlridge is a group fitness studio that specializes in High Intensity Interval Training and functional fitness movements. The 45-minute workouts are programmed to change daily in an effort to constantly challenge the mind and the body. F45 is staffed with a team of certified trainers that are there to motivate participants through the workout while also ensuring that they are executing all exercises in a proper and safe manner. F45’s goal is to serve the community of Hawaii and encourage its constituents to make their health and wellness a top priority, to stay active, and to get moving. All HSBA members are eligible to receive an “Unlimited Membership” at F45 Pearlridge at the corporate discounted rate of $42 per week. This offer would only be valid at the Pearlridge location. The process to redeem the special offer is very simple. A member just needs to mention that they are an HSBA Member when they call the studio line at (808) 745-0808 to redeem this offer and present the HSBA Bar Card at the front desk upon arriving in the studio for the first class. For more information, contact the F45 Studio Manager, Tatum Henderson, at thenderson@f45training.com or (808) 745-0808.

Dream Float Hawaii Become weightless as you float in epsom salt water. Floats are about an hour. The low sensory environment allows one to unplug from the world. Each experience is unique; however, in general, it is deeply relaxing, meditative, and beyond interesting. With two float tanks, Dream Float can accommodate up to two people at a time. Use the discount code “HSBA” for $20 off Single and Couple’s Floats. This discount code is also good for $5 off a Cold Plunge. Book online at www.dreamfloathi.com or via phone/text at (808) 386-5997. Island Club and Spa HSBA Members will receive a onemonth complimentary guest membership to Island Club and Spa, the signature health and rejuvenation destination in Honolulu. Island Club and Spa is conveniently located in the beautiful Ko’olani complex and in the center of Waikiki at the Alohilani Resort Waikiki Beach. Included with your Island Club and Spa benefit: • 30-day complimentary guest membership (first-time guests only) • Enrollment fee: $99 (regularly $500) • Corporate monthly rate: $134 plus tax (reg $185) with second family member add on at $96 (12-month agreement required) • Receive 4 months free on prepaid memberships (total 16 months) • Receive 2 complimentary personal training sessions upon joining To activate your complimentary membership or schedule an appointment, call Geri Lara Berger at (808) 543-3900 or email info@islandclubandspa.com or glaraberger@islandclubandspa.com.

DISCIPLINE NOTICES NOTICE OF DISBARMENT OF NATHAN W.S. CHOI On June 24, 2022, the Hawai‘i Supreme Court ordered Honolulu attorney Nathan W. S. Choi, disbarred from the practice of law in the State of Hawai‘i, effective July 25, 2022. Choi’s disbarment was predicated upon his earlier resignation in lieu of discipline from the Washington State Bar, effective November 17, 2021. Under Washington law, a resignation in lieu of discipline is permanent and is treated as a disbarment in other jurisdictions. Washington Rules for Enforcement of Lawyer Conduct (ELC), Rule 9.3. In Choi’s case, his agreement with the Washington State Bar also included his agreement to seek to resign in all other jurisdictions to which he is admitted, including Hawai‘i. Under Hawai‘i law, the Hawai‘i Supreme Court will generally impose identical discipline (RSCH Rule 2.15(c)), and Hawai‘i deems a resignation in lieu of discipline to be a “disbarment for all purposes.” RSCH Rule 2.14(d). Here, Choi contested the application for imposition of reciprocal discipline, but the Hawai‘i Supreme Court, after reviewing the record from the Washington disciplinary proceeding, noted that his “current efforts to collaterally attack the effect of his Washington State resignation rather than to seek to resign his Hawai‘i license, [are] efforts which are contrary to the steps he agreed to undertake in the November 17, 2021 [Washington] Notice of

Resignation in Lieu of Discipline.” The court then concluded “Choi is reciprocally disbarred in [Hawai‘i], effective 30 days after the entry date of this [June 24, 2022] order.” While Choi’s resignation is not effective until July 25, 2022, starting June 24, 2022 he shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. RSCH Rule 2.16(c). Before July 25, 2022, he may wind up all matters that were pending on June 24, 2022. Id. During that time, he is required to promptly notify all his clients, and any attorneys for any party, or self-represented parties, in any pending litigation or proceedings, of his inability to act as an attorney. RSCH Rule 2.16(a) and (b). Further, by July 25, 2022, Choi shall surrender to all clients all papers and property to which they are entitled and return any advance payments of fees that have not been earned. RSCH Rule 2.16(c). Nathan Choi was admitted to the Hawai‘i bar in 1999 and is a graduate of the University of Hawai‘i, William S. Richardson, School of Law. Case reference: ODC v. Nathan W.S. Choi, SCAD-22-0000319; In re Nathan W. Choi, Washington State Bar No. 1900028.

authorities investigating misconduct allegations in three pending Office of Disciplinary Counsel (ODC) matters, and his failure to respond to the court’s amended order to show cause in this proceeding. Furusho may petition for reinstatement with proof that he has cured the failure to cooperate alleged in the petition, subject to the right of the ODC to respond. RSCH Rule 2.12A(d). Finding that his failure to cooperate constitutes a suspension for the purposes of RSCH Rule 2.16, upon entry of the order, Furusho shall not accept any new retainer, engage as attorney for another in any new case or legal matter of any nature and is required to promptly notify all clients, and any attorneys for any adverse party in any pending litigation, of his suspension and consequent inability to act as an attorney. Furusho is also required to surrender to all clients all papers and property to which the clients are entitled and any advance payments of fees that have not been earned. Id., and HRPC Rule 1.16. Furusho was admitted to the Hawai‘i bar in 1977 and is a graduate of the University of Denver, Sturm College of Law. Case information: ODC v. Craig K. Furusho, SCAD-22-0000317

NOTICE OF THE INDEFINITE SUSPENSION OF CRAIG K. FURUSHO On June 27, 2022, the Hawai‘i Supreme Court immediately and indefinitely suspended Honolulu attorney Craig K. Furusho from the practice of law pursuant to RSCH Rule 2.12A due to his failure to cooperate with disciplinary

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CAS E NOTES Supreme Court Criminal State v. Manion, No. SCWC-190000563, June 3, 2022, (Recktenwald, C.J., with Eddins, J., concurring separately, with whom McKenna, J., joins and Wilson, J. dissenting). When evidence is obtained against a criminal defendant in contravention of constitutional protections, such as when police subject a suspect to custodial interrogation without first giving Miranda warnings as required by article I, section 10 of the Hawaii Constitution, that evidence must be suppressed. Evidence obtained after the illegality, acquired because of officers’ exploitation of that illegality, must likewise be suppressed, as such evidence is fruit of the poisonous tree. Here, defendant Daniel Irving James Manion was subject to custodial interrogation during a roadside investigation for operating a vehicle under the influence of an intoxicant (OVUII). But the evidence gathered after that illegality – specifically, his performance on the standardized field sobriety test (SFST) – was neither testimonial, nor the fruit of the poisonous tree. The police did not exploit the illegal interrogation because the interrogation did not lead to the discovery of the SFST evidence; the investigation had already been directed to the SFST before any illegality. Manion’s performance on the SFST was accordingly admissible despite the absence of Miranda warnings preceding the test. Eddins, J., concurred in which McKenna, J., joined. Eddins, J. stated that though he concurred with the majority’s judgment and reasoning, he disliked its slinking reliance on the State’s custody concession. That custody concession is the point of departure for the majority’s fruit of the poisonous tree analysis: without custody, there are no illegal medical rule out questions, and without the illegal medical rule out (MRO) questions, there’s no exclusionary

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Appeal Pointer Omissions from the record by error or accident may be corrected by the trial court or agency before or after the record on appeal is transmitted to the appellate court and without remand from the appellate court. HRAP 10(e)(2)(B). rule issue. But it is also - like the district court’s custody conclusion – premised on State v. Ketchum, 97 Hawaii 107, 34 P.3d 1006 (2001). At the time of the suppression hearing (and for nearly two decades before it), Ketchum safeguarded the right against self-incrimination with a bright-line rule: a person is “in custody” for the purposes of article I, section 10 of the Hawaii Constitution if “probable cause to arrest has developed.” 97 Hawaii 107, 126, 34 P.3d 1006, 1025 (2001). By treating custody as a given in this case, the court effectively, if indirectly, built new law on the back of the same bright-line rule it had recently tossed aside. See State v. Sagapolutele-Silva, SCWC-19-0000491 (Haw. June 3, 2022) (McKenna, J., dissenting). Wilson, J., dissented. Wilson, J. stated that in this trio of cases the Majority eviscerated the constitutional protection afforded those in Hawaii who government agents seek to interrogate. In so doing, the Majority reversed orders entered by the district court that protected the rights of Petitioners Tiana Sagapolutele-Silva, Leah Skapinok, and James Manion to be free from interrogation by government agents. State v. Sagapolutele-Silva, No. SCWC19-0000491, June 3, 2022, (Recktenwald, C.J., with McKenna, J., dissenting separately, with whom Wilson, J., joins and Wilson, J., dissenting separately). Tiana Sagapolutele-Silva was arrested after a traffic stop in 2018 and charged with Operating a Vehicle Under the

Influence of an Intoxicant (OVUII) and excessive speeding. Sagapolutele-Silva moved to suppress any statements she made during the traffic stop on the ground that she was not advised of her Miranda rights during the encounter. The district court granted the motion, concluding that Sagapolutele-Silva was in custody during the investigation for OVUII because the investigating officers had probable cause to arrest her for excessive speeding, a petty misdemeanor. The ICA affirmed. On appeal, the State asked to clarify when a suspect is in custody for purposes of administering the prophylactic warnings against selfincrimination required by article I, section 10 of the Hawaii Constitution. Although the cases have consistently stated that the custody test is one of totality of the circumstances, some precedent has nonetheless indicated that the presence of probable cause alone is dispositive. The Hawaii Supreme Court clarified that a court must evaluate the totality of the circumstances to determine whether a suspect is in custody such that Miranda warnings are required before a police officer may interrogate them. That formulation is consistent with the purposes of Miranda since it focuses the inquiry on whether police have created a “coercive atmosphere.” See, e.g., State v. Melemai, 64 Haw. 479, 482, 643 P.2d 541, 544 (1982) (Miranda warnings are required when “the totality of circumstances created the kind of coercive atmosphere that Miranda warnings were designed to prevent”); State v. Wyatt, 67 Haw. 293, 299, 687 P.2d 544, 549 (1984) (“the ultimate test is whether the questioning was of a nature that would subjugate the individual to the will of his examiner and thereby undermine the privilege against compulsory self-incrimination” (citations omitted) (internal quotation marks omitted)). Almost forty years ago, the Hawaii Supreme Court considered the

coerciveness of roadside questioning in Wyatt. The defendant there was ordered to pull over after officers observed her driving at night with no headlights on, and officers then smelled alcohol emanating from her vehicle. The Hawaii Supreme Court held that Miranda warnings were not required at that point since the circumstances were not intimidating or coercive, but rather constituted “on-the-scene questioning of brief duration conducted prior to arrest in public view.” Wyatt, 67 Haw. at 300, 687 P.2d at 550; see also State v. Kuba, 68 Haw. 184, 188, 706 P.2d 1305, 1309 (1985) (holding, under facts “almost indistinguishable” from Wyatt, that Miranda warnings were not required before the police began asking questions). Wyatt and Kuba have not been overruled and their totality-of-the-circumstances approach should be applied here. Accordingly, probable cause is relevant but not dispositive to determining whether a person is in custody. This case illustrated why it was important to assess the relevance of probable cause in light of all the circumstances. Sagapolutele-Silva was observed driving at thirty-two miles per hour over the speed limit; if she had been driving just three miles per hour slower, the officer would not have had probable cause to arrest her for the offense of excessive speeding. Hawaii Revised Statutes § 291C-105(a)(1) (2007). That three-mile-per-hour difference had no effect on the coerciveness of the situation from Sagapolutele-Silva’s point of view. Under the totality of the circumstances, Sagapolutele-Silva was not in custody when she was pulled over or during the administration of the standardized field sobriety test (SFST). Accordingly, Miranda warnings were not required, and there was no illegality which would taint her subsequent statements as fruit of the poisonous tree. McKenna, J., with whom Wilson, J., joined, dissented. McKenna, J. stated that instead of providing additional protection under the constitution, the majority chose to curtail an existing

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protection. Under the guise of clarifying precedent, the majority actually overruled well-established Hawaii precedent protecting the fundamental constitutional right against self-incrimination under article I, section 10 of the Hawaii Constitution. For many years, people here have enjoyed the protection of a bright-line rule requiring law enforcement to provide Miranda warnings when probable cause to arrest exists, even when an arrest is not made. The majority actually overruled the brightline rule, thus reducing the constitutional rights of Hawaii’s people. Therefore, McKenna, J. respectfully but strongly disagreed with the majority decision to overrule this precedent. The Hawaii Supreme Court had traditionally interpreted the constitution to provide greater protections than provided by the federal constitution. Bright-line rules enhanced the rule of law as they provided predictability and equality in law enforcement’s treatment of defendants. Thus, a bright-line rule requiring the giving of Miranda warnings upon the development of probable cause is more effective in bolstering citizen confidence in law enforcement and in the justice system. “Totality of circumstances” tests should be eschewed when possible, as they involve appellate judges in a fact-finding process. Elimination of the bright-line rule will increase the need for litigation regarding whether a person is in “custody” when interrogation occurred under “a totality of circumstances.” In ruling, the majority relied on factually distinguishable precedent arising out of traffic stops that allowed questioning without Miranda warnings before the existence of probable cause. Yet, until today, to protect the fundamental right against self-incrimination, the case law had required Miranda warnings to avoid suppression of statements made in response to interrogation after development of probable cause. After abrogating the bright-line rule, the majority then engages in a fact-finding process, applying the “totality of

circumstances” standard to determine when Sagapolutele-Silva was actually in custody for custodial interrogation purposes. The majority ruled she was not in custody until her formal arrest. The majority ruled that because SagapoluteleSilva was not in custody, her responses to the MRO questions were not subject to suppression. McKenna, J. disagreed with the majority’s application of the test. Even based on the totality of circumstances, Sagapolutele-Silva was “in custody” at the time of the MRO questions. Whether or not probable cause existed, her responses to those questions were therefore also properly suppressed based on a “totality of circumstances.” Her statements after the SFSTs were also properly suppressed as they were “fruit of the poisonous tree” of the MRO questions. For all of these reasons, McKenna, J. would affirm the district court’s suppression of statements made by Sagapolutele-Silva after her initial stop for excessive speeding, except as to the questions and responses regarding whether Sagapolutele-Silva would participate in the SFSTs and whether she understood the instructions. Wilson, J. also dissented separately. Wilson, J. stated that in Sagapolutele-Silva, the Majority rescinded the right against self-incrimination previously afforded to those who police have probable cause to believe committed a crime. To do so, the Majority opined that a woman pulled over at 2:50 a.m. by a police officer who witnessed her commit excessive speeding, who was without her license, who was told that she was pulled over for speeding, who admitted that she was speeding, who showed signs of intoxication, who was questioned while standing outside of her vehicle and who was approached by as many as two police officers, was not in custody. To reach the conclusion that Sagapolutele-Silva was not in custody the Majority holds that, faced with these circumstances, it would not be reasonable for her to believe she was in custody; instead, as a matter of law, the Majority finds it would only be

reasonable for her to believe she was free to return to her car and drive away. Of note is the sensible testimony of the two officers at the scene who contradicted the conclusion of the Majority and candidly acknowledged that SagapoluteleSilva was not free to leave from the time her vehicle was initially stopped. Specifically, Officer Franchot Termeteet (Officer Termeteet) testified that from the time he “approached the window” of Sagapolutele-Silva’s vehicle, “she was not free to leave the scene[.]” Officer Bobby Ilae (Officer Ilae) further testified that throughout the time that he was with Sagapolutele-Silva, she was not free to leave. Consistent with the conclusion of the officers, the district court and the ICA found—contrary to the Majority’s application of the facts—that Sagapolutele-Silva was in custody. The rule of law relied upon by the district court and the ICA has been settled for over twenty years. The Hawaii Supreme Court held that at the point of arrest, the right against self-incrimination attaches: “persons temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and their right to counsel, until such time as the point of arrest or accusation has been reached.” State v.Patterson, 59 Haw. 357, 362-63, 581 P.2d 752, 756 (1978) (emphasis added). The Hawaii Supreme Court then affirmed that the accused is protected from self-incrimination at the point the police have probable cause to arrest: “[I]f the detained person’s responses to a police officer’s questions provide the officer with probable cause to arrest . . . the officer is—at that time— required to inform the detained person of his or her constitutional rights against self-incrimination and to counsel, as mandated by Miranda and its progeny.” State v. Loo, 94 Hawaii 207, 212, 10 P.3d 728, 733 (2000) (citing Miranda v. Arizona, 384 U.S. 436 (1966)). Within a year, the right of the accused facing arrest to be free from police questioning was specifically applied pursuant to article I, section

10 of the Hawaii Constitution: “In summary, we hold that a person is “in custody” for purposes of article I, section 10 of the Hawai‘i Constitution if an objective assessment of the totality of the circumstances reflects . . . that the point of arrest has arrived because either (a) probable cause to arrest has developed or (b) the police have subjected the person to an unlawful “de facto” arrest without probable cause to do so.” Ketchum, 97 Hawaii at 126, 34 P.3d at 1025 (emphasis added). In contravention of clear precedent to the contrary, the Majority for the first time opened wide interrogation without the protection of the right against self-incrimination of people who police have probable cause to believe have committed a crime. In so doing the Majority reversed the conclusions of the district court and the ICA that Sagapolutele-Silva was in custody and approved the interrogation of Sagapolutele-Silva by police who—having probable cause to believe she committed a criminal

offense—sought additional information in pursuit of her prosecution. State v. Skapinok, No. SCWC-190000476, June 3, 2022, (Recktenwald, C.J., with Wilson, J., dissenting). This case required the Hawaii Supreme Court to examine the practice of asking so-called medical rule-out questions in the course of an Operating a Vehicle Under the Influence of an Intoxicant (OVUII) investigation. An officer administering a standardized field sobriety test (SFST) to an OVUII suspect asked the medical rule- out questions, which “rule out” other reasons, besides intoxication, for poor performance on the SFST. Leah Skapinok was asked seven medical rule-out questions while in police custody, before she was advised of her Miranda rights. If the questions were interrogation, article I, section 10 of the Hawaii Constitution required that her answers to them be suppressed. The Hawaii Supreme Court held that these questions were interrogation under the

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Hawaii Constitution. There was no per se exception under the Hawaii Constitution for questions “necessarily ‘attendant to’ [a] legitimate police procedure.” Pennsylvania v. Muniz, 496 U.S. 582, 605 (1990) (citation omitted). To avoid suppression for want of Miranda warnings, such questions must pass muster under the well-established interrogation test: “whether the officer should have known that his words and actions were reasonably likely to elicit an incriminating response from the defendant.” State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592, 595–96 (1983) (citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). The medical rule-out questions asked to Skapinok in this case were “reasonably likely to elicit an incriminating response” because her answers to them aided in interpreting the SFSTs’ results – that is, her answers supported the inference that she was intoxicated because no medical cause could explain any aberrations in her test performance. Skapinok’s answers to the medical rule-out questions must be suppressed. But the Hawaii Supreme Court could not say the same for any of the other challenged evidence. Neither asking whether Skapinok would participate in the SFST nor asking whether she understood the instructions to the test would be reasonably likely to elicit an incriminating response. And the evidence gathered thereafter, including her performance on the SFST, was not an exploitation of, or benefit derived from, the medical rule-out questions; accordingly, subsequent evidence was not the fruit of the poisonous tree. Wilson, J. dissented. Wilson, J. stated that in this trio of cases the Majority eviscerated the constitutional protection afforded those in Hawaii who government agents seek to interrogate. In so doing, the Majority reversed orders entered by the district court that protected the rights of Petitioners Tiana Sagapolutele-Silva, Leah Skapinok, and James Manion to be free from interrogation by government agents.

Intermediate Court of Appeals Family KS v. RS, No. CAAP-19-0000871, May 27, 2022, (Nakasone, J.). This appeal considered whether, under Hawaii law, a family court may grant tie-breaking authority to one parent in a joint legal custody award, if the court determines that it is in the child’s best interests. The ICA held that a family court is not precluded from ordering joint legal custody with tie-breaking authority to one parent based on the court’s broad discretion, if it determines that doing so is in the child’s best interest. In this consolidated appeal, Plaintiff-Appellant “KS” (“Mother”) appealed from orders and a decree arising out of a trial regarding her divorce from Defendant-Appellee “RS” (“Father”), entered by the Family Court. In CAAP-19-0000871, Mother appealed from the November 25, 2019 Decision and Order Re: Trial, Child Support Guidelines Worksheet, and Property Division Chart (“Trial Order”); and the December 16, 2019 Decree Granting Absolute Divorce and Awarding Child Custody (“Divorce Decree”). In CAAP-20-0000489, Mother appeals from the June 29, 2020 Order Re: Plaintiff ’s Motion to Amend or Alter Decision and Order and Granting Defendant’s Motion to Enforce Decree. In CAAP-19-0000871, Mother raised twelve (12) points of error. In CAAP-200000489, Mother raised seventeen POEs of which twelve are identical to the POEs in CAAP-19-0000877. As to CAAP-19-0000871, the ICA vacated in part with respect to the dispute resolution provisions of the award of joint custody, and the determinations regarding spousal support. As to CAAP-200000489, the ICA vacated the Order Re: Post-Judgment Motions to the extent it did not address Mother’s Motion to Alter.

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Old Rule 26(b)(5). New Rule 26(a)(2)(A). 33 Id. at (2)(A)(ii). 34 Fed. R. Civ. P. 26(a)(2)(B). 35 Old Rule 26(b)(5). 36 New Rule 26(a)(2)(B). 37 Fed. R. Civ. P. 26(a)(2)(C)(i). 38 Old Rule 26(e)(1). 39 Id. 40 New Rule 26(a)(3)(A). 41 Id. at (a)(3)(B). 42 Fed. R. Civ. P. 26(e)(2). 43 Id. 44 Old Rule 26(b)(6). 45 Id. 46 Id. 47 New Rule 26(b)(5)(C). 48 Id. 49 Fed. R. Civ. P. 26(b)(5). 50 See Old Rule 26 at (f). 51 New Rule 26(a)(2)(C)(i). 52 Id. at 26(a)(2)(C)(ii). 53 Id. 54 Fed. R. Civ. P. 26(a)(2)(D). 55 Fed. R. Evid. R. 403. 56 Mako v. Burlington N. & Santa Fe R.R., No. C075346FDB, 2009 WL 364979, at *9 (W.D. Wash. Feb. 12, 2009) (cited in Otis Elevator Company’s Motion to Preclude Testimony of John W. Koshak and Strike Report of Elevator Safety Solutions, LLC, Kim v. Crocs, Inc., 2019 WL 923879, at *7 (D. Haw. Feb. 25, 2019) (No. 1:16-cv-00460-JAO-KJM) (ECF No. 308)). 57 509 U.S. at 595 (citations and internal marks omitted). 58 Haw. R. Evid. 403. 59 Otis Elevator Company’s Motion to Preclude Testimony of John W. Koshak and Strike Report of Elevator Safety Solutions, LLC, Kim v. Crocs, Inc., 2019 WL 923879, at *7 (D. Haw. Feb. 25, 2019) (No. 1:16-cv-00460-JAO-KJM) (ECF No. 308). 60 Id. (citing Hoganson v. Menard, Inc., 567 F.Supp.2d 985, 990 (W.D. Mich. 2008)). 61 Id. at 31. 62 Kim, 2019 WL 923879, at *3. 63 See Peterson v. Young Men’s Christian Ass’n of Greater New Orleans, Civ. A. No. 91-2278, 1992 WL 161072, at *1–2 (E.D. La. June 18, 1992). 64 Bailey v. Stanley Access Techs., Inc., No. 3:14-CV72-SA-JMV, 2015 WL 6828921, at *10 (N.D. Miss. Nov. 6, 2015). 32

7 Fed. R. Evid. 702; Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. 8 Acoba v. Gen. Tire, Inc., 92 Hawai‘i 1, 13 n.6, 986 P.2d 288, 300 n.6 (1999). 9 Vliet, 95 Hawai‘i 94, 105, 19 P.3d at 53. 10 Haw. R. Evid. 702; cf. Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. 11 Martin S. Kaufman, Status of Daubert in State Courts, ATLANTIC LEGAL FOUND. (Mar. 31, 2006) at 32, http://www.iapsych.com/iqmr/daubertstates.pdf. 12 Id. (“Hawaii adopted the Frye test for scientific testimony in 1992 . . . also us[ing] a two-prong test to determine the admissibility of expert testimony that mirrors Fed. R. Evid. 702 and 703[.]”), 293 F.1013 (D.C. Cir. 1923). 13 73 Haw. 130, 140, 828 P.2d 1274, 1280 (1992) (adopting Frye as part of the reliability analysis along with HRE 702 and 703 to admit scientific evidence at trial). 14 Frye, 293 F.1013 at 1014. 15 Vliet, 95 Hawai‘i at 105, 19 P.3d at 53; State v. Escobido-Ortiz, 109 Hawai‘i 359, 367 126 P.3d 402, 410 (App. 2005) (citing Vliet for the proposition that “[a]lthough the Hawai‘i Supreme Court has not adopted the Daubert test in construing HRE 702, it has fond the Daubert factors instructive.).” 16 Vliet, 95 Hawai‘i at 106; cf. e.g., Kumho Tire, 526 U.S. at 147; Daubert, 509 U.S. at 589; Kim v. Crocs, Inc., No. CV 16-00460-JAO-KJM, 2019 WL 923879, at *1 (D. Haw. Feb. 25, 2019). 17 Haw. R. Civ. P. 26 (effective Jan. 1, 2022) [hereinafter New Rule 26]. 18 See New Rule 26; Fed. R. Civ. P. 26 (effective Dec. 1, 2021). 19 95 Hawai‘i at 105, 19 P.3d at 53. 20 Kaufman, supra note 11, at 32–33; Haw. R. Evid. 702; cf. Fed. R. Evid. 702. 21 80 Hawai‘i 172, 182, 907 P.2d 758, 768 (1992) (citing Daubert for the proposition that the FRE have a “liberal thrust” and a “general approach of relaxing the barriers to ‘opinion’ testimony.”). 22 Kaufman, supra note 11, at 32–33 (classifying Hawaii as one of seven states that have “neither adopted nor rejected Daubert”). 23 New Rule 26. 24 Haw. R. Civ. P. 26 (as applicable to cases filed Dec. 31, 2021 or earlier) [hereinafter Old Rule 26]. 25 Fed. R. Civ. P. 26, (effective Dec. 1, 2021). 26 Old Rule 26(b)(1)(A). 27 Id. at (a). 28 New Rule 26(a)(1)(A), (C). 29 Id. at (D). 30 Fed. R. Civ. P. 26(C), (D).

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Id. Order Granting in Part and Denying in Party Defendant Otis Elevator Company’s Motion to Preclude Testimony of John W. Koshak and Strike Report of Elevator Safety Solutions, Inc., Kim v. Crocs, Inc., WL 923879, at *4 n.4 (D. Haw. Feb. 25, 2019) (No. 1:16-cv00460-JAO-KJM) (ECF No. 439). 67 Fujifilm Corp. v. Motorola Mobility LLC, No. 1266

CV-03587-WHO, 2015 WL 1265009, at *6 (N.D. Cal. Mar. 19, 2015). 68 Id. at *6–7. 69 340 F.Supp.3d 934, 949 (N.D. Cal. 2018). 70 No.14-CV-01197-WHO, 2016 WL 4560071, at *14 (N.D. Cal. Aug. 22, 2016). 71 Id. 72 249 F.R.D. 625, 639 (D. Haw. 2008). 73 Id. 74 Luke v. Fam. Care & Urgent Med. Clinics, 323 F. App’x 496, 500 (9th Cir. 2009). 75 See id. 76 Fed. R. Evid. 702. 77 No. 1:18-cv-00293-JMS-WRP, 2020 WL 5633848, at *9 (D. Haw. Sept. 21, 2020). 78 Id. at *2–3. 79 Id. at *1. 80 Id. 81 Id. 82 Id. at *1-2. 83 Id. at *5–7. 84 Id. at *5 n.5. 85 Id. at *1–3, 5–7. 86 Id. at *5. 87 Id. 88 Id. 89 Id. 90 Id. 91 Warren v. United States, No. CV 19-00232-JMSWRP, 2021 WL 1990644, at *1 (D. Haw. May 18, 2021). 92 Id. at *5. 93 Id. at *1. 94 A doctor who specializes in the care of newborn babies. 95 Warren, 2021 WL 1990644, at *7. 96 No. CIV. A. 4:00CV199, 2002 WL 34357200, at *1 (E. D. Tex. May 7, 2002). 97 No. 3:18-CV-0146-HRH, 2021 WL 4236866, at *1, *2 (D. Alaska Sept. 16, 2021).

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