Kobashigawa v. Silva. Â , 129 Haw. 313 ( 2013 )

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Electronically Filed
Supreme Court
SCWC-30639
26-APR-2013
11:15 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---O0O---
LISA KOBASHIGAWA, as Personal Representative of
the ESTATE OF WILLIAM S. KOBASHIGAWA, Deceased, and
EARL KOBASHIGAWA and GAIL PEI, as Co-Trustees of the
MARGARET M. KOBASHIGAWA REVOCABLE LIVING TRUST and
as Assignees of MARGARET M. KOBASHIGAWA, Deceased,
Respondents/Plaintiffs-Appellants,
vs.
JOSEPH M.K. SILVA, Defendant,
and
CITY AND COUNTY OF HONOLULU,
Petitioner/Defendant-Appellee.
SCWC-30639
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30639; CIVIL NO. 06-1-0682)
APRIL 26, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK,1 JJ.
1
Associate Justice Pollack was initially assigned to this case as a
substitute justice while he was a judge of the Circuit Court of the First
Circuit, in place of Associate Justice Duffy, recused. He subsequently became
a member of this court on August 6, 2012.
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OPINION OF THE COURT BY NAKAYAMA, J.
When a trial judge makes an unequivocal ruling that
evidence is admissible at trial, the party that had sought to
exclude such evidence by means of a motion in limine need not
renew its objection when that evidence is introduced at trial in
order to preserve the objection for appellate review.
In this case, Respondents/Plaintiffs-Appellants Lisa
Kobashigawa and Margaret M. Kobashigawa (collectively, the
Kobashigawas) brought a negligence action against Defendant
Joseph M.K. Silva and Petitioner/Defendant-Appellee City and
County of Honolulu (the City) for damages arising from a tragic
incident in which William S. Kobashigawa was struck and killed
while crossing a mid-block crosswalk shortly before sunrise
during his morning walk. Although the Kobashigawas settled their
claims against Silva, they proceeded to trial against the City;
the jury found the City not liable. On appeal, the Intermediate
Court of Appeals (ICA) vacated the jury verdict and remanded for
a new trial, concluding that the circuit court plainly erred in
giving a cautionary jury instruction that permitted the jury to
consider evidence of the Kobashigawas’ motive in filing suit and
in allowing the City to comment on such motive in its closing
argument.
In its application to this court, the City focuses on
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the cautionary jury instruction, as the ICA did, and argues to
this court that the ICA gravely erred in concluding that (1) the
instruction was an erroneous statement of the law and (2) the
circuit court’s issuance of the instruction satisfied the test
for plain error review. In their response to the application,
the Kobashigawas maintain that the instruction was an erroneous
statement of law because a plaintiff’s motive in bringing an
otherwise valid lawsuit is generally irrelevant to resolution of
the merits of the lawsuit. The Kobashigawas also argue that the
ICA’s application of plain error review did not constitute grave
error, although they reiterate the argument made to the ICA that
they were not required to make additional objections subsequent
to the hearing on their pretrial motions in limine in order to
preserve their claimed errors for appeal.
Although we agree with the ICA’s ultimate conclusion
that the circuit court’s cautionary jury instruction regarding
motive was a prejudicially erroneous statement of the law, we
disagree with its conclusions that the Kobashigawas failed to
preserve their objections to the admission of irrelevant evidence
concerning their motive in filing suit and that such failure
required it to resort to plain error review. Accordingly, as
modified by this opinion, we affirm the ICA’s judgment vacating
the circuit court’s judgment and remanding the case for a new
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trial.
I. BACKGROUND
A. Factual Background and Pre-Trial Proceedings
On December 22, 2005, shortly before sunrise at
approximately 5:45 a.m., William was in the act of crossing a
marked mid-block pedestrian crosswalk on Kamehameha Highway in
Kâne#ohe when he was struck and killed by a truck driven by
Silva. Kobashigawa v. Silva, 126 Hawai#i 62, 64, 266 P.3d 470,
472 (App. 2011).
On April 21, 2006, Lisa, William’s daughter,2 and
Margaret, William’s wife, filed a complaint against Silva in the
Circuit Court of the First Circuit3 alleging negligence and
negligent infliction of emotional distress and seeking special
and general damages. On March 5, 2007, the Kobashigawas filed a
First Amended Complaint adding the City as a defendant. The
Kobashigawas’ negligence claim against the City “included
defective design and/or maintenance of Kamehameha Highway,
including the pedestrian crosswalk and the surrounding trees,
street signs and/or street lights at or near the crosswalk.”
Kobashigawa, 126 Hawai#i at 64, 266 P.3d at 472. On March 22,
2
Lisa initially filed suit both in her individual capacity and in
her capacity as Personal Representative of William S. Kobashigawa’s Estate,
but later stipulated to dismissal with prejudice of all claims filed as a
plaintiff in her individual capacity.
3
The Honorable Rom A. Trader presided.
4
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2007, Silva then filed a cross-claim against the City, alleging
that it was solely responsible for William’s death. On March 18,
2008, the Kobashigawas filed the operative Second Amended
Complaint against Silva and the City, realleging negligence and
negligent infliction of emotional distress and adding a claim of
loss of consortium and services as to Margaret only.
Gina Bailey was the only eyewitness to the accident,
and she was deposed by the City on June 14, 2009. In addition to
her recollection of what happened at the scene of the accident,
she testified in pertinent part as follows:
Q After the date of the accident, did you talk to
anybody from the pedestrian’s family?
A Yes. That day, the police called me. He said that
the family would like to speak to me, and they gave me the
daughter’s phone number. And I called her, thinking maybe
she wanted to know about how her father died, if he said any
last words, if he was suffering, anything like that, and I
told her who I was, and the first thing out of her mouth
was, “Would you be willing to testify if we sued?”
Q Any other thing in that conversation?
A No. I pretty much hung up, after that. I was so mad.
She saw her father’s death with money signs in her eyes.[4]
Q And after that -- do you recall the daughter’s name?
A I don’t.
Q After that conversation, did you have any other
conversations with this daughter or any member of his
family?
A I did not.
Q And you knew this was the daughter because she
identified herself when you called?
A The police told me that this was the phone number of
the pedestrian’s daughter.
Bailey also stated that she remembered making the call one day
after the accident. Because Bailey no longer lived in Hawai#i,
4
This sentence was barred from admission as calling for speculation
pursuant to the court’s partial grant of the Kobashigawas’ Motion in Limine
No. 4, discussed infra.
5
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had moved to California, and was in the United States Navy and
expected to be deployed overseas shortly thereafter, she would be
unable to appear at trial; subsequently, the City designated
Bailey’s entire deposition transcript for use at trial, and Silva
designated portions of the transcript.
On September 21, 2009, the Kobashigawas filed their
Motion in Limine No. 1 seeking an order barring evidence and
argument “by [the d]efendants speculating on [the Kobashigawas’]
motives for pursuing the instant action, including, but not
limited to, that [the Kobashigawas] have pursued claims against
[the d]efendants for pecuniary reasons, i.e., [in] order to
recover monetary damages against wealthy or ‘deep pocket’
defendants in the case.” The Kobashigawas also filed their
Motion in Limine No. 4 objecting to admission of certain parts of
Bailey’s deposition testimony. At a hearing on the motions on
October 5, 2009, the circuit court denied Motion in Limine No. 1
and indicated its intent to give a cautionary instruction to the
jury that such evidence could only be considered in determining
bias, interest, or motive on the part of the Kobashigawas in
filing suit:
THE COURT: [. . .] With that, the [c]ourt will confirm its
ruling, will deny the motion, does intend to issue a
cautionary, which I will provide the parties with copies of
what the [c]ourt has sort of drafted and then we can sort of
visit this sufficiency or propriety of the way those are
drafted at a later point. But basically, the [c]ourt does
intend to sort of limit its consideration, any bias,
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interest or motive, if any is shown.
All right. So with that, that dispenses of
plaintiff’s number one.
With respect to Motion in Limine No. 4, the court granted the
motion in part as to certain of Bailey’s statements that called
for speculation and denied the remainder of the motion.
B. Relevant Trial Proceedings
Jury trial began on October 8, 2009. Meanwhile, the
Kobashigawas reached a settlement with Silva; on October 9, 2009,
the circuit court granted his petition for determination of good
faith settlement filed on September 22, 2009 and dismissed all
claims against him with prejudice. Thus, trial proceeded with
the Kobashigawas as plaintiffs and the City as the sole remaining
defendant. At trial, after Bailey’s deposition testimony was
read into evidence during the Kobashigawas’ case-in-chief, the
court read its cautionary instruction to the jury:
You have heard testimony from one witness about certain
statements attributed to a Kobashigawa family member
following Mr. Kobashigawa’s death. Your consideration of
this evidence is limited to determining the existence or
absence of any possible bias, interest or motive, if any, by
plaintiffs in bringing this lawsuit and not for any other
purpose. Specifically, you may not consider this evidence
of negative character or negative conduct by plaintiffs or
for any other purpose.
Later in the Kobashigawas’ case-in-chief, Gail Pei, William’s
daughter and Lisa’s sister, testified and disputed Bailey’s
allegations as to what was said during the phone call:
Q All right. Now, there also has been a deposition read
from a Gina Bailey --
A Uh-huh.
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Q -- who said she called the house the day after she was
given a number by the police to call the house to speak to a
daughter.
A Uh-huh.
Q Did you speak to her?
A The day after? No, no, not at all.
Q Do you know if any of your sisters spoke to her?
A No one even mentioned her name, no.
Q Okay. The day after your father’s death, that would
have been December 23, 2005. Who was at the house?
A All of us were at my parents’ house, but we were just
so busy because the telephone was ringing off the hook. It
was from the media and some -- I don’t know -- some
insurance person tried calling my mother. And it was crazy.
Q Okay. And so -- but in all of those phone calls, you
do not -- and no one mentioned that a witness was calling?
A No.
Q Did you have a conversation with somebody named Gina?
A I did.
Q And when did that occur?
A That had to have occurred -- it was -- I had already
gone back to work, so it was after the funeral. I’m not
sure if it was January 5th. I know I was back at work
because when the phone call came in, I was walking -- it was
after work, after 4:30, and I was walking to my car, which I
parked at Ala Moana Shopping Center.
Q Did the person identify herself?
A Yes, she did.
Q And what did she say?
A She identified herself and she said that she got my
number from the -- I guess one of the police investigators,
that I would be interested in speaking with her. So I took
her phone call and the only thing I remember asking about
her was -- of course we want to know if my dad had any last
words. But Gina went on to say that when she had gotten out
of her car to go to him to see if she could render CPR, he
was already passed.
Q Okay. And did you ask her if she wanted -- would be a
witness?
A No, I didn’t.
Q Was there any talk like that?
A No.
Gail further stated on cross-examination by the City:
Q You mentioned that you didn’t speak to a person the
day after this tragedy; is that correct? You didn’t speak
to a person by the name of Gina Bailey on the phone that
day?
A No. On that day things were pretty chaotic because we
had a funeral to plan.
Q Certainly. I understand that. Did you speak to her
though at any time? A person that you knew to be Gina
Bailey?
A That was after I had already gone back to work.
Q Uh-huh.
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A So it had to be about January 5th or somewhere around
that area or that time because I know I had gone back to
work because it was after work when I got that call on my
cell phone.
Q Had you given the police your cell phone number to be
contacted?
A Yes.
Q So had you asked the police to have the witness call
you?
A Yes.
Q And it was to your -- to the best you remember, it was
after the new year, 2006?
A It had to be.
Q Okay. And then you spoke to the woman on the phone?
A Yes.
Q About how long did you speak to her?
A Maybe about a minute or two.
Q Yeah. And -- and there was no -- there was no mention
about asking her to be a witness --
A No.
Q -- to testify in any lawsuit?
A No.
Q It was just a brief one-minute conversation?
A Right.
Q Did it end on -- on cordial terms, that telephone
call?
A Yes, it did, because I only had one question for her,
and that was, you know, if my dad had any last words.
Q And she told you obviously --
A Yes.
Q -- that -- no. Okay.
At the close of trial, the court’s cautionary instruction
regarding bias, interest, or motive was included in the packet of
jury instructions and was read to the jury again in full as part
of the instructions before closing arguments. During the City’s
closing argument, it pointed to the Kobashigawas’ possible
monetary motivation to file a lawsuit:
And that brings us to Gina Bailey. Gina Bailey. We
had her deposition testimony. You’ve heard she’s in the
Navy. She is the only person -- the only eyewitness who
does not have a stake in this case. She has no interest in
the case. And if plaintiffs attempt to gloss over Ms.
Bailey’s eyewitness account of this really horrible
accident, why would they do this? Well, there’s one aspect.
She told you in a day or so after the accident she got a
call from Officer Lisa Reed to call one of the family
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members to talk about the accident. Ms. Bailey made that
call, and the first words that Ms. Bailey told you that she
heard was will you testify when we sue? Ms. Bailey
obviously was appalled, recoiled and hung up the telephone
just as her deposition testimony told you. Why hang up?
It’s obvious, she recoiled from the notion of looking to
file a lawsuit within a day or so after this accident, not
asking her about did my father suffer, did my father have
any last words, what can you tell me, was he at peace,
nothing like that?
Now, Ms. Pei says it was her who talked to Ms. Bailey
and she said they had a nice conversation, a nice
conversation about her father’s last moments, totally in
contradiction to Ms. Bailey’s testimony. A nice
conversation on the telephone about her father’s last
moments that lasted about one minute. Does that make any
sense to you or does Ms. Bailey’s testimony make more sense
to you?
Before concluding, the City’s counsel referred to the
Kobashigawas’ monetary motive one additional time:
And there’s some other minor points that I want you to
consider about damages, and it comes with a question. Why
is the City in this lawsuit? To collect monetary damages,
but from whom do they seek this compensation? Well, of
course, it’s from the City. With this in mind, with those
facts in mind, consider, this, Dr. Hayes[5] was hired to go
to the scene to investigate it six days after the accident.
Counsel was certainly hired earlier than six days after the
accident to take him out there looks like. And Gina Bailey
says that she spoke to a family member within a day or so
after the accident who wanted her to testify in their
lawsuit. Is this case simply about getting a collectable
monetary award from the City when it was Mr. Silva who
caused the accident?
On October 21, 2009, the jury then returned a verdict in favor of
the City, indicating on the special verdict form that it did not
find the City negligent.6
5
Dr. Charles Hayes testified as an expert witness for the
Kobashigawas, having been qualified by the court as an expert in the field of
physics with expertise in the area of lighting.
6
Margaret died on February 26, 2010, between the end of trial and
the entry of judgment; consequently, Earl Kobashigawa, William’s son and
Lisa’s brother, and Gail were substituted as plaintiffs in their capacity as
co-trustees of the Margaret M. Kobashigawa Revocable Living Trust and as
(continued...)
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The circuit court entered its Judgment Pursuant to
Special Verdict on March 25, 2010. After disposition of the
City’s motion for taxation of costs and a stipulation to dismiss
all remaining claims, the Kobashigawas timely filed a Notice of
Appeal on July 28, 2010.
C. The ICA’s December 2, 2011 Published Opinion
On appeal to the ICA, the Kobashigawas raised several
points of error that were all related to the issue of Bailey’s
motive evidence and the circuit court’s cautionary instruction to
the jury on bias, interest, or motive.7 Specifically, the
Kobashigawas argued that the circuit court erred in: (1) denying
Motion in Limine No. 1 and denying in part Motion in Limine No.
4, because the City could then introduce evidence related to the
Kobashigawas’ motive for filing suit;8 (2) allowing the parts of
Bailey’s deposition testimony referring to the Kobashigawas’
motive, because such evidence was irrelevant and prejudicial; (3)
giving the cautionary instruction because this served to place
6
(...continued)
Margaret’s assignees.
7
The Kobashigawas also argued that the circuit court erroneously
awarded costs to the City because that award was based on the erroneous
verdict. The issue of costs is not before this court.
8
Although the Kobashigawas preserved their objections to the
introduction of such evidence and raised this point on appeal, the ICA did not
address the point in its analysis. It instead proceeded directly to the error
in the circuit court’s cautionary jury instruction. See Kobashigawa, 126
Hawai#i at 65, 266 P.3d at 473.
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prejudicial emphasis on the Kobashigawas’ alleged motive rather
than cure any prejudice created by the evidence; and (4) allowing
the City to comment on the Kobashigawas’ supposed motive in its
closing argument to the jury.
The City argued in response that the circuit court: (1)
did not err in denying the motions in limine because those
rulings are preliminary and cannot be deemed reversible error,
and because Bailey’s deposition testimony was relevant and
admissible; (2) did not err in allowing Bailey’s deposition
testimony to be introduced because it was relevant, the court had
already struck prejudicial portions of the testimony, and because
the Kobashigawas introduced it themselves in their case-in-chief;
(3) did not err in giving the cautionary jury instruction because
the Kobashigawas did not object to the instruction and failed to
propose a different instruction or alternate wording for the
instruction, and because the jury instructions as a whole were
not misleading or erroneous statements of the law; and (4) did
not err in allowing the City to comment on motive in its closing
argument because the Kobashigawas did not object and because the
closing argument was based on reasonable inferences from the
evidence presented during the trial.
In its opinion, the ICA agreed with the Kobashigawas
that the circuit court erred in issuing the cautionary
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instruction to the jury because it was “an erroneous statement of
the law.” Kobashigawa, 126 Hawai#i at 65, 266 P.3d at 473.
Although the ICA noted the City’s argument that the “Kobashigawas
did not object to this jury instruction at trial[,]” id., it
also stated that “even the complete failure to object to a jury
instruction does not prevent an appellate court from taking
cognizance of the trial court’s error if the error is plain and
may result in a miscarriage of justice.” Id. (quoting Montalvo
v. Lapez, 77 Hawai#i 282, 288, 884 P.2d 345, 351 (1994))
(internal quotation marks omitted).
The ICA thus stated that three factors must be
considered in determining whether a trial court has committed
plain error in a civil case: “(1) whether consideration of the
issue not raised at trial requires additional facts; (2) whether
its resolution will affect the integrity of the trial court’s
findings of fact; and (3) whether the issue is of great public
import.” Id. (quoting Montalvo, 77 Hawai#i at 290, 884 P.2d at
353).
The ICA concluded that all three factors were met, and
in proceeding to the point of error, held that the instruction
misstated the law because “[i]n bringing an action, the motives
of the plaintiffs are immaterial absent bad faith.” Id. The ICA
further held that in light of the improper jury instruction, the
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circuit court also erred in allowing the City to comment on the
Kobashigawas’ motive for bringing suit during its closing
argument. Id. at 66-67, 266 P.3d at 474-75. The ICA thus
vacated the circuit court’s March 25, 2010 Judgment Pursuant to
Special Verdict and remanded the case for a new trial. Id. at
67, 266 P.3d at 475.
The City timely filed its application on March 21,
2012. The Kobashigawas timely filed a response to the
application on April 5, 2012.
II. STANDARDS OF REVIEW
A. Motion in Limine
The granting or denying of a motion in limine is reviewed
for abuse of discretion. The denial of a motion in limine,
in itself, is not reversible error. The harm, if any,
occurs when the evidence is improperly admitted at trial.
Thus, even if the trial court abused its discretion in
denying a party’s motion, the real test is not in the
disposition of the motion but the admission of evidence at
trial.
State v. Eid, 126 Hawai#i 430, 440, 272 P.3d 1197, 1207 (2012)
(quoting Miyamoto v. Lum, 104 Hawai#i 1, 7, 84 P.3d 509, 515
(2004) (internal quotation marks, citations, and ellipsis
omitted)). Furthermore, as we have often stated, “[a]n abuse of
discretion occurs where the trial court has clearly exceeded the
bounds of reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant.” Hart
v. Ticor Title Ins. Co., 126 Hawai#i 448, 455, 272 P.3d 1215,
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1222 (2012) (quoting Allstate Ins. Co. v. Pruett, 118 Hawai#i
174, 179, 186 P.3d 609, 614 (2008)) (brackets in original).
B. Jury Instructions
When jury instructions, or the omission thereof, are at
issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the
error was not prejudicial.
Nelson v. Univ. of Haw., 97 Hawai#i 376, 386, 38 P.3d 95, 105
(2001) (internal quotation marks and citations omitted).
III. DISCUSSION
This case prompts us to examine when and how an
objection to evidence admitted in a trial may be made and
preserved for appellate review. In its opinion, the ICA
correctly concluded that the circuit court erred in giving its
cautionary jury instruction regarding the Kobashigawas’ motive in
filing suit. However, it conducted its analysis using plain
error review premised on the fact that, during trial, the
Kobashigawas did not make contemporaneous objections to the
giving of the instruction or to references to motive in the
City’s closing argument. Thus, the ICA did not explicitly
address the points raised by the Kobashigawas alleging error in
the denial of their Motions in Limine No. 1 and No. 4, which in
turn allowed the introduction of inadmissible evidence--mainly
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from Gina Bailey’s deposition testimony--related to the
Kobashigawas’ motives for filing a lawsuit and naming the City as
a defendant. The ICA also arrived at its result without
considering whether the Kobashigawas had properly preserved their
objections by moving in limine to exclude all evidence and
argument concerning motive.
Case law dating back to 1983 in this state and even
earlier in others establishes that when a court makes a
definitive pretrial ruling on the admissibility of evidence, the
party that had unsuccessfully moved to exclude the evidence need
not repeat essentially the same objection during trial in order
to preserve a claim of error on appeal. Furthermore, although
originating in case law, the so-called “definitive ruling” or
“unequivocal ruling” exception has been made part of the rules of
evidence both at the federal level as well as in a number of
states. Although the Hawai#i Rules of Evidence (HRE) has
contained the exception since the enactment of an amendment to
Rule 103 in 2006, the ICA did not address the exception even
though the Kobashigawas specifically referenced it in their
argument that the circuit court had erred in allowing evidence
and argument on motive during trial.
In affirming the ICA’s judgment, we thus take this
opportunity to clarify that when the trial court makes a
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definitive pretrial ruling that evidence is admissible, the party
opposing that ruling need not renew its objection during trial in
order to preserve its claim on appeal that the evidence was
erroneously admitted. We further clarify that subsequent
introduction of the evidence by the party opposing the ruling
also does not waive that party’s claim of error on appeal.
A. Development of the Law of Motions in Limine in Hawai#i
“A motion in limine is a procedural device which
requests a pretrial order enjoining opposing counsel from using
certain prejudicial evidence in front of a jury at a later
trial.”9 Barcai v. Betwee, 98 Hawai#i 470, 489, 50 P.3d 946, 965
(2002) (Acoba, J., concurring) (quoting State v. Miura, 6 Haw.
App. 501, 504, 730 P.2d 917, 920 (1986)) (internal quotation
marks omitted); see also, e.g., 75 Am. Jur. 2d Trial § 39 (2007)
(“The purpose of a motion in limine is to prevent irrelevant,
inadmissible, or prejudicial matters from being admitted in
evidence or to exclude evidence when its probative value is
outweighed by the danger of unfair prejudice.” (footnotes
omitted)); Johnny K. Richardson, Use of Motions in Limine in
Civil Proceedings, 45 Mo. L. Rev. 130, 134 (1980) (“The
9
In addition to excluding evidence the opposing party seeks to
introduce, a party may also seek an in limine ruling in advance of trial
confirming that its own evidence is admissible. See, e.g., 21 Charles Alan
Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence §
5037.10, at 758 & n.6 (2d ed. 2005).
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prohibitive motion in limine requests the court to issue an order
prohibiting opposing counsel and his witnesses from alluding to
the prejudicial evidence in any manner during any portion of the
trial proceedings.”).
In an earlier case often cited in this jurisdiction for
its discussion on motions in limine, the ICA stated:
In essence, a motion in limine is generally made before or
at the beginning of a jury trial for a protective order
against prejudicial questions, statements, and evidence. It
serves the useful purpose of raising and pointing out before
trial certain evidentiary rulings the court may be called
upon to make during the course of trial.
Lussier v. Mau-Van Dev., Inc., 4 Haw. App. 359, 393, 667 P.2d
804, 826 (1983) (citing Twyford v. Weber, 220 N.W.2d 919 (Iowa
1974); Akins v. State, 429 N.E.2d 232 (Ind. 1981); Lagenour v.
State, 376 N.E.2d 475 (Ind. 1978); Tom H. Davis, Motions in
Limine, 15 Clev.-Marshall L. Rev. 255 (1966)). Even earlier, in
an opinion issued when the motion in limine was still gaining
acceptance as a standard pretrial procedure, the Texas Supreme
Court noted:
The purpose in filing a motion in limine to suppress
evidence or to instruct opposing counsel not to offer it is
to prevent the asking of prejudicial questions and the
making of prejudicial statements in the presence of the jury
with respect to matters which have no proper bearing on the
issues in the case or on the rights of the parties to the
suit.
Bridges v. City of Richardson, 354 S.W.2d 366, 367 (Tex. 1962)
(emphasis added).
As with other evidentiary rulings, “[t]he granting or
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denying of a motion in limine is within the trial court’s
inherent power to exclude and admit evidence.” Lussier, 4 Haw.
App. at 392, 667 P.2d at 826 (citing Jean C. Love, Note, Pretrial
Exclusionary Evidence Rulings, 1967 Wis. L. Rev. 738); see also
Burrus v. Silhavy, 293 N.E.2d 794, 798 (Ind. App. 1973) (“The
trial court’s authority to entertain ‘motions in limine’ emanates
from its inherent power to admit and exclude evidence. This
inherent power to exclude extends to prejudicial questions and
statements that could be made in the presence of a jury and
thereby interfere with fair and impartial administration of
justice.”). Because a denial of a pretrial motion in limine to
exclude evidence is generally regarded as an interlocutory order
subject to reconsideration when the evidence is actually offered
during trial, such “denial of a motion in limine [to exclude], in
itself, is not reversible error. The harm, if any, occurs when
the evidence is improperly admitted at trial.” Lussier, 4 Haw.
App. at 393, 667 P.2d at 826 (citing Akins, 429 N.E.2d 232;
Dayton Walther Corp. v. Caldwell, 389 N.E.2d 723 (Ind. App.
1979); State v. Church of Nazarene of Logansport, 377 N.E.2d 607(Ind. 1978)). Therefore, consonant with the principle that
preservation of error is a necessary prerequisite for review of
that error on appeal, when a motion in limine to exclude evidence
is simply denied without a ruling on admissibility and the
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evidence is subsequently introduced by the opposing party during
trial, “a proper objection at that time is necessary to preserve
the error for appellate review.” Id. (citing Love, supra;
Lagenour, 376 N.E.2d 475; Church of Nazarene of Logansport, 377
N.E.2d 607; Twyford, 220 N.W.2d 919; United States v. Traylor,
656 F.2d 1326, 1333 n.6 (9th Cir. 1981); Collins v. Wayne Corp.,
621 F.2d 777 (5th Cir. 1980); Hartford Accident & Indem. Co. v.
McCardell, 369 S.W.2d 331 (Tex. 1963)). Thus, as is generally
true for appellate review of any issue, the failure to object to
evidence introduced after denial of a pretrial motion in limine
to exclude that same evidence will result in waiver of the
objection on appeal. See id. (citing Rojas v. Richardson, 703
F.2d 186 (5th Cir. 1983)).
Nevertheless, even at the time Lussier was decided,
there was an exception to the general rule: “objections need not
be renewed if the prior ruling on the motion in limine amounted
to an unequivocal holding concerning the issue raised.” Id.(citing State v. Miller, 229 N.W.2d 762 (Iowa 1975)). “Where a
hearing was held, counsel presented legal arguments, and the
trial court ruled whether or not the challenged evidence would be
admitted at trial, there is no necessity of further objection to
preserve such error for appeal.” Id. at 393-94, 667 P.2d at 826
(citing State v. Harlow, 325 N.W.2d 90 (Iowa 1982)) (emphasis
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added). With these principles in mind, the Lussier court
ultimately held that because the trial court simply denied the
motion in limine without ruling on the admissibility of the
evidence at that time, an objection was necessary at trial to
preserve the error for appeal; because Lussier did not enter any
objections on the record, he waived his challenge to the
introduction of evidence concerning his motives in filing suit.
Id. at 394, 667 P.2d at 826-27.
Subsequently, the law of motions in limine in Hawai#i
was not revisited until 1995. In Craft v. Peebles, Teena Craft
brought a medical malpractice action against Lawrence Peebles,
M.D. and a products liability action against McGhan Medical
Corporation for manufacturing allegedly defective breast
implants. 78 Hawai#i 287, 290, 893 P.2d 138, 141 (1995). At the
pretrial stage, Craft filed motions in limine seeking to exclude
evidence of, in relevant part, her criminal record, alleged
substance abuse, and alleged abuse by her spouse. Id. at 292,
893 P.2d at 143. The circuit court granted Craft’s motion to
exclude evidence of substance abuse, but denied as to evidence of
her criminal record and her allegedly abusive spouse insofar as
they were relevant to her claims of mental distress. Id.Because Craft did not make any objections to the introduction of
the evidence at trial, this court noted that “objections not
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raised or properly preserved at trial will not be considered on
appeal.” Id. at 294, 893 P.2d at 145 (citing MPM Hawaiian, Inc.
v. Amigos, Inc., 63 Haw. 485, 630 P.2d 1075 (1982)).
Craft argued to this court that because the circuit
court had already denied her pretrial motions in limine to
exclude the evidence, the definitive ruling exception mentioned
in Lussier applied and she was not required to make further
objections at trial to preserve that point of error on appeal.
Id. at 294-95, 893 P.2d at 145-46. This court disagreed with
Craft’s argument, stated that the rulings on the motions in
limine “were preliminary in nature and were reserved for
consideration during trial[,]” and quoted the following from the
circuit court’s ruling:
[T]he [c]ourt is limiting its ruling solely on the grounds
raised in the Motion in Limine. To the extent that the
[c]ourt grants or denies a Motion in Limine, if there are
further foundational requirements that need to be met, the
proponents of the introduction of the evidence shall also
meet these foundational requirements, so for example, if the
[c]ourt is denying a motion in limine pertaining to the
admission of certain evidence, the [c]ourt is only ruling on
the issue raised in the motion.
Id. at 295, 893 P.2d at 146 (some brackets added and some
brackets removed; emphasis added). This court thus concluded
that the definitive ruling exception did not apply and that
objections at trial were required because the circuit court “did
not rule with certainty that the evidence concerning Craft’s
criminal record and family problems would be allowed into
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evidence. Instead, it expressly reserved the right to rule on
the subject evidence until the foundational grounds were
satisfied during trial.” Id.Shortly thereafter, the ICA commented on motions in
limine in Page v. Domino’s Pizza, Inc., 80 Hawai#i 204, 908 P.2d
552 (App. 1995). There, Michael Page brought suit claiming
damages arising from an incident inside a Domino’s store where
the stool on which he had been sitting suddenly collapsed. Id.
at 205-06, 908 P.2d at 553-54. On appeal, Domino’s argued in
part that the circuit court “erred in denying its motion in
limine to exclude evidence of prior incidents involving the
collapse of two other stools in the same Domino’s store and in
subsequently allowing admission of such evidence over objection.”
Id. at 205, 908 P.2d at 553. Based on its review of the motion
in limine hearing, the ICA determined that the circuit court
unequivocally decided that it would deny the motion in limine and
admit Page’s prior incident evidence. See id. at 208 n.4, 908
P.2d at 556 n.4 (“THE COURT: . . . I’m going to allow it. . . .
Yeah, I’m going to let it in.”); see also id. at 205 n.1, 908
P.2d at 553 n.1 (citing Craft, 78 Hawai#i at 294-95, 893 P.2d at
145-46; Lussier, 4 Haw. App. at 393, 667 P.2d at 826) (“[W]e
conclude that the trial court’s ruling on Domino’s motion in
limine, see n.4 infra, amounted to an ‘unequivocal holding’
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concerning the issue raised, thereby removing the need for
Domino[’s] to renew its objection during trial.”).
The most recent discussion on the law of motions in
limine in this jurisdiction appears in the 2002 Barcai case,10 in
which the family of Francis Barcai brought a medical malpractice
action against Jon Betwee, M.D. after Barcai was found dead in
the psychiatric ward of Maui Memorial Hospital. 98 Hawai#i at
474, 50 P.3d at 950. Barcai was initially admitted to the
hospital on June 11, 1990 in a psychotic state but became calmer
and consented to psychiatric treatment after receiving
antipsychotic medication. Id. at 473, 50 P.3d at 949. After
treatment by several doctors yielded positive results, Barcai
again began to suffer from panic and anxiety after June 13; on
June 19, Dr. Betwee prescribed Stelazine, an antipsychotic
medication, and although Barcai’s condition alternately improved
and worsened, he was found dead on the morning of June 27. Id.
at 473-74, 50 P.3d at 949-50. An autopsy did not reveal the
cause. Id. at 474, 50 P.3d at 950. Barcai’s family filed a
complaint against Betwee and Maui Memorial Hospital, primarily
alleging medical negligence for failure to diagnose and treat the
10
In one other case, this court agreed with the appellant that an
unequivocal pretrial ruling admitting evidence “was sufficient to preserve the
issue for appeal.” Ditto v. McCurdy, 98 Hawai#i 123, 130 n.9, 44 P.3d 274,
281 n.9 (2002) (citing Craft, 78 Hawai#i at 295, 893 P.2d at 146; Page, 80
Hawai#i at 205 n.1, 908 P.2d at 553 n.1; Lussier, 4 Haw. App. at 393-94, 667
P.2d at 826).
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neuroleptic malignant syndrome11 they claimed to be the cause of
Barcai’s death.12 Id.Before trial, Barcai’s family filed motions in limine
to exclude evidence of Barcai’s prior violent acts, as well as
any reference to Barcai’s hospitalization at the Hawai#i State
Hospital in 1989. Id. at 474-75, 50 P.3d at 950-51. The circuit
court ruled that evidence of Barcai’s history would be
inadmissible because of an agreement between the parties that Dr.
Betwee’s treatment of Barcai was not based on Barcai’s past
behavior and an offer by Barcai’s family to dismiss certain
claims that would implicate the prior violence evidence. Id. at
475, 50 P.3d at 951. The next day, following jury selection,
defense counsel asked the court to reconsider its ruling on the
grounds that Dr. Betwee would testify that he had taken Barcai’s
history of violence into account during treatment and that
11
Neuroleptic malignant syndrome (NMS) “is a relatively rare but
potentially serious complication of antipsychotic medication that[,] at the
time of Barcai’s hospitalization, was thought to be fatal in approximately
four to twenty[-]nine percent of cases.” Barcai, 98 Hawai#i at 473, 50 P.3d
at 949 (citing Gerard Addonizio & Virginia Lehmann Susman, Neuroleptic
Malignant Syndrome: A Clinical Approach 7-8, 87-88 (1991)). “Early
recognition of NMS and discontinuation of the offending antipsychotic
medication is critical; in general, it is thought that the earlier the signs
and symptoms of NMS are recognized and the offending medication is stopped,
the better the patient’s chances for survival.” Id. (citing Addonizio &
Susman, supra, at 52).
12
Barcai’s family also alleged false imprisonment, battery,
negligent infliction of emotional distress, and negligent failure to obtain
informed consent before administering the antipsychotic medication. Barcai,
98 Hawai#i at 474, 50 P.3d at 950. The claims against Maui Memorial Hospital
were resolved by way of summary judgment and stipulated dismissal by the
parties; consequently, Dr. Betwee was the only defendant at trial. Id.25
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Barcai’s family had already stipulated to allowing Barcai’s
medical records, which contained references to Barcai’s past
violence and prior hospitalization, into evidence. Id. Although
Barcai’s family argued that such a change in the court’s ruling
would prejudice them because they could have questioned potential
jurors for bias related to Barcai’s prior violence if they knew
the evidence would be admissible, the court reversed its earlier
ruling and decided the evidence was admissible. Id.On appeal, Barcai’s family argued that the circuit
court’s reversal of its initial ruling after jury selection
deprived them of their right to exercise their peremptory and
for-cause challenges and therefore impaired their right to a fair
and impartial jury because they relied on the initial ruling and
did not attempt to excuse “those potential jurors who may have
been biased against Barcai due to his history of violence.” Id.
at 476, 50 P.3d at 952. In an opinion written by Chief Justice
Moon, this court rejected that argument: Barcai’s family did not
point to anything in the record that showed Barcai’s past
violence was even discussed at trial; therefore, Barcai’s family
could not demonstrate that they suffered any actual prejudice in
jury selection or in the outcome of the trial. Id. In fact,
this court specifically noted that the only evidence of Barcai’s
prior violence that was admitted had been offered by Barcai’s
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family as part of the medical record to which both parties had
stipulated; moreover, they had offered the evidence before the
circuit court made its initial in limine ruling. Id. at 477, 50
P.3d at 953. This court therefore held that there was no
impairment of Barcai’s family’s right to a fair and impartial
jury because they “could not have relied upon the trial court’s
initial ruling in the first place to assume that they did not
have to question potential jurors about their attitudes towards
violence and cannot [on appeal] blame the trial court for their
own decision not to do so.” Id.In a separate concurrence, Justice Acoba, joined by
Justice Ramil, agreed with the court’s result in concluding that
Barcai’s family had suffered no prejudice as a result of the
circuit court reversing its initial ruling on the motion in
limine, but disagreed with Dr. Betwee’s argument that Barcai’s
family could not rely on the circuit court’s initial ruling and
that they “should have anticipated its reversal[.]” Id. at 488,
50 P.3d at 964 (Acoba, J., concurring). Whereas the majority
opinion focused on the motion in limine only as it was relevant
to the fair and impartial jury argument, presumably because that
was the scope of the issue raised on appeal, Justice Acoba’s
concurring opinion explored in more detailed fashion the purposes
of motions in limine and the rationales supporting the reasoning
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that parties should be able to rely on a court’s rulings on such
motions. He stated:
[Dr. Betwee]’s approach [in arguing that Barcai’s family
erred in relying on the trial court’s initial in limine
ruling] places the responsibility on litigants to second-
guess each in limine ruling a trial court makes. In such a
setting, the court’s order remains subject to question, the
precise situation sought to be avoided by obtaining an in
limine ruling. If the parties cannot rely on the court’s
ruling, chaos will result. Inasmuch as parties reasonably
expect courts to abide by their decisions on such motions,
we should not place the onus on a party to speculate as to
whether a particular ruling on a motion in limine will later
be reversed by the trial court. For the same reason, we
should not engage in a post-trial analysis as to whether
such a guess was appropriate or not, as [Dr. Betwee] would
apparently invite us to do.
Id. “The motion in limine affords an opportunity to the court to
rule on the admissibility of evidence in advance,” id. at 489, 50
P.3d at 965 (quoting Kuroda v. Kuroda, 87 Hawai#i 419, 427, 958
P.2d 541, 550 (App. 1998)) (internal citations omitted; emphasis
removed), and in doing so it “is intended to establish the
parameters for the introduction of evidence at trial[,]”
id. (citing State v. Gonsalves, 5 Haw. App. 659, 668, 706 P.2d
1333, 1340 (1985), overruled on other grounds by State v.
Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993)), and “also assists
litigants in formulating their trial strategy.” Id. (citing
United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994),
cert. denied, 513 U.S. 1182 (1995)).
Justice Acoba thus noted that “[a]s a general matter,
parties should be able to rely on a court’s in limine rulings.”
Id. Importantly, his concurrence also reaffirmed the logic of
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the unequivocal ruling exception first adopted by the ICA in
Lussier: “It follows, then, that a ruling on a motion in limine
does not require further objection during trial to preserve an
issue for appellate review because the matter had been previously
raised, argued, and ruled on[.]” Id. at 490, 50 P.3d at 966
(citing Lussier, 4 Haw. App. at 393-94, 667 P.2d at 826). When a
trial court’s ruling on a motion in limine is “unequivocal,” it
is thereafter “illogical for litigants to have to consider
whether or not their reliance on such rulings would be considered
reasonable upon appellate review[.]” Id. at 491, 50 P.3d at 967.
On the other hand, when the court cannot render an
unequivocal pretrial ruling on the admissibility of the
particular evidence because it must wait until foundational
prerequisites are established at trial or a proper trial record
is otherwise first developed, the court should accordingly
“refrain from rendering a pretrial ruling and defer such ruling
for trial.” Id. (citing United States v. Cline, 188 F. Supp. 2d
1287, 1291 (D. Kan. 2002) (internal citations omitted); State v.
Dopp, 930 P.2d 1039, 1045-46 (Idaho App. 1996)). “If the trial
court must defer ruling on the motion in limine, its decision
should be expressly communicated to the parties and placed on the
record.” Id. at 492, 50 P.3d at 968 (citation omitted).
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B. Under the 2006 amendment to HRE Rule 103, which applies to
this case, the Kobashigawas did not waive any objection to the
circuit court’s admission of evidence and allowance of argument
commenting on their motive for filing suit
1. FRE Rule 103
Effective December 1, 2000, Federal Rules of Evidence
(FRE) Rule 103 was amended to include the following language, and
currently13 reads as follows:
(b) Not Needing to Renew an Objection or Offer of Proof.
Once the court rules definitively on the record--either
before or at trial--a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.
This amendment essentially codified the definitive ruling
exception into the FRE and was intended to resolve the circuit
split that had existed for many years regarding the issue of
whether a contemporaneous objection to evidence proffered during
trial is necessary after a court has denied a party’s pretrial
motion in limine to exclude that same evidence.
Prior to 2000, “the pre-amendment version of FRE 103
did not clearly address the issue of whether, and in what
circumstances, an objection raised via motion in limine must be
renewed at trial to preserve it for appeal.” Christopher J.
13
FRE Rule 103 was again amended in 2011, but only for the purpose
of making nonsubstantive stylistic changes. See Fed. R. Evid. 103 advisory
committee’s note (“The language of Rule 103 has been amended as part of the
restyling of the Evidence Rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These changes are
intended to be stylistic only. There is no intent to change any result in any
ruling on evidence admissibility.”). As a result of the 2011 amendment, the
definitive ruling exception language was moved from FRE Rule 103(a) to FRE
Rule 103(b).
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Douglass, Objections, Renewals, and Preemptive Introductions:
Erasing Uncertainty by Revisiting FRE 103, 86 Iowa L. Rev. 949,
960 (2001). Some circuits had held that a pretrial motion in
limine alone was insufficient to preserve an objection for appeal
and that a renewal of the objection was always required when the
evidence was introduced during trial. See, e.g., Collins v.
Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980); Nw. Flyers, Inc.
v. Olson Bros. Mfg., 679 F.2d 1264, 1275 n.27 (8th Cir. 1982);
Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1504 (11th
Cir. 1985). Other circuits, adopting the definitive ruling
exception, held that an objection need not be renewed during
trial when the trial court has made an explicit and definitive
ruling on a pretrial motion in limine. See, e.g., Rosenfeld v.
Basquiat, 78 F.3d 84, 90-91 (2d Cir. 1996); Am. Home Assurance
Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324-25 (3d Cir.
1985); Palmerin v. City of Riverside, 794 F.2d 1409, 1411-13 (9th
Cir. 1986); United States v. Mejia-Alarcon, 995 F.2d 982, 985-88
(10th Cir. 1993). As the Advisory Committee on Evidence worked
on amending FRE Rule 103 during the 1990s, one circuit even
preemptively adopted the Advisory Committee’s proposed amendment
before it was finalized. See Wilson v. Williams, 182 F.3d 562,
565-66 (7th Cir. 1999) (en banc).
Under the amended rule, “an objection or offer of proof
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need not be renewed to preserve a claim of error with respect to
a definitive pretrial ruling.” Fed. R. Evid. 103 advisory
committee’s note. This is because “[w]hen the ruling is
definitive, a renewed objection or offer of proof at the time the
evidence is to be offered is more a formalism than a necessity.”
Id. (citations omitted). “The requirement that the ruling be
‘definitive’ is clearly satisfied if the trial judge rules in an
unequivocal manner, without reserving the matter for further
consideration as the trial progresses and the evidence unfolds.”
Christopher B. Mueller & Laird C. Kirkpatrick, 1 Federal Evidence
§ 1:10 (3d ed. 2007). The 2000 amendment thus effectively
resolved the circuit split in favor of the courts holding that a
pretrial motion in limine seeking exclusion of evidence preserved
the moving party’s objection without requiring a renewal of the
objection during trial so long as the trial court had
definitively ruled on the motion. See, e.g., United States v.
Brown, 669 F.3d 10, 22 n.18 (1st Cir. 2012) (citing Fed. R. Evid.
103(a)) (“The court explicitly denied Elaine’s request to exclude
Monier’s testimony and so Elaine’s objection was properly
preserved for purposes of appeal.”); Dream Games of Ariz., Inc.
v. PC Onsite, 561 F.3d 983, 988 n.3 (9th Cir. 2009) (“The
district court was sufficiently informed as to PC Onsite’s
grounds for objection and denied that motion in a definitive
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ruling. Therefore, PC Onsite’s objection to screen displays that
contain unprotectable elements has been preserved for appellate
review.”); Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th
Cir. 2002) (citations omitted) (“The 2000 amendment to rule
103(a) changed the law that had prevailed in this circuit. . . .
Before the amendment, we required an objection at trial to
preserve the error.”); Mukhtar v. Cal. State Univ., Hayward, 299
F.3d 1053, 1062 (9th Cir. 2002) (citing Fed. R. Evid. 103(a)(2))
(“Contemporaneous objection is not required where, as here, the
trial court definitively ruled on a motion in limine after
exploring CSUH’s objection.”).
2. HRE Rule 103
A similar split of authority developed and continues to
exist among state appellate courts. As with the pre-2000 federal
circuit split, state courts also fell on both sides of the
question of whether an objection during trial was necessary after
a party had unsuccessfully moved to exclude evidence by means of
a pretrial motion in limine. Some courts held that a
contemporaneous objection was required when evidence was
introduced at trial even though the party had filed a pretrial
motion in limine seeking to exclude that evidence.14 Other
14
See, e.g., Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d
331, 335 (Tex. 1963); Zehner v. Post Oak Oil Co., 640 P.2d 991, 995 (Okla.
App. 1981); Smith v. Holloway Constr. Co., 289 S.E.2d 230, 231 (W. Va. 1982);
(continued...)
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courts held that a pretrial motion in limine, if fully argued to
and definitively ruled upon by the trial judge, was sufficient to
preserve for appeal a party’s objection to the admission of
evidence without further objection during trial.15
Following the 2000 amendment to FRE Rule 103, some
state legislatures and/or supreme courts moved to add an
identical or similar provision to their own rules of evidence.16
14
(...continued)
Maricle v. Speigel, 329 N.W.2d 80, 84-85 (Neb. 1983) (citing Twyford v. Weber,
220 N.W.2d 919 (Iowa 1974); Vorthman v. Keith E. Myers Enters., 296 N.W.2d 772(Iowa 1980); Jeffrey F. Ghent, Annotation, Modern status of rules as to use of
motion in limine or similar preliminary motion to secure exclusion of
prejudicial evidence or reference to prejudicial matters, 63 A.L.R.3d 311(1975)); Douglas v. Lombardino, 693 P.2d 1138, 1147 (Kan. 1985) (citing Reeve
v. McBrearety, 660 P.2d 75, 77 (Kan. App. 1983)); Odom v. Schofield, 480 So.
2d 1217, 1218 (Ala. 1985) (citing Liberty Nat’l Life Ins. Co. v. Beasley, 466
So. 2d 935 (Ala. 1985)); Romanek-Golub & Co. v. Anvan Hotel Corp., 522 N.E.2d
1341, 1347 (Ill. App. 1988); Simpson v. Smith, 771 S.W.2d 368, 371 (Mo. App.
1989) (citing Williams v. Enochs, 742 S.W.2d 165 (Mo. 1987); Anderson v.
Rojanasathit, 714 S.W.2d 894 (Mo. App. 1986)).
15
See, e.g., Harley-Davidson Motor Co. v. Daniel, 260 S.E.2d 20, 22
(Ga. 1979); Davidson v. Beco Corp., 733 P.2d 781, 785 (Idaho App. 1986), rev’d
in part on other grounds, 753 P.2d 1253 (Idaho 1987); Uptain v. Huntington
Lab, Inc., 723 P.2d 1322, 1330-31 (Colo. 1986); Sims v. Gen. Motors Corp., 751
P.2d 357, 362-63 (Wyo. 1988); Waterson v. Gen. Motors Corp., 544 A.2d 357,
362-63 (N.J. 1988); Beil v. Mayer, 789 P.2d 1229, 1232-33 (Mont. 1990); Miller
v. Peter J. Schmitt & Co., 592 A.2d 1324, 1329 (Pa. Super. 1991) (citing
Commonwealth v. Gibson, 526 A.2d 438, 439 (Pa. Super. 1987)).
16
One notable exception is Kentucky Rules of Evidence (K.R.E.) Rule
103; while based on the FRE, K.R.E. Rule 103 has, since taking effect in 1992,
included a separate subsection (d) specifically addressing motions in limine:
(d) Motions in limine. A party may move the court for a
ruling in advance of trial on the admission or exclusion of
evidence. The court may rule on such a motion in advance of
trial or may defer a decision on admissibility until the
evidence is offered at trial. A motion in limine resolved
by order of record is sufficient to preserve error for
appellate review. Nothing in this rule precludes the court
from reconsidering at trial any ruling made on a motion in
limine.
(continued...)
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Many of the states in which amendments were made are those that
had already substantially or completely modeled their rules of
evidence on the FRE. Thus, for example, Pennsylvania Rules of
Evidence (Pa.R.E.) Rule 103(a) was amended in 2001 (effective
January 1, 2002) to add the same language found in the 2000
amendment to FRE Rule 103(a): “Once the court makes a definitive
ruling on the record admitting or excluding evidence, either at
or before trial, a party need not renew an objection or offer of
proof to preserve a claim of error for appeal.”17 Pa. R. Evid.
103(a) & cmt.; see also Blumer v. Ford Motor Co., 20 A.3d 1222,
1232 (Pa. Super. 2011) (citing Pa. R. Evid. 103 cmt.; Trach v.
Fellin, 817 A.2d 1102, 1107 n.3 (Pa. Super. 2003) (en banc))
(“Consistent with the above amendment to Pa.R.E. 103(a), a motion
in limine may preserve an objection for appeal without any need
to renew the objection at trial, but only if the trial court
clearly and definitively rules on the motion.”). Colorado Rules
of Evidence Rule 103(a) was amended in 2002 to add the same
16
(...continued)
Ky. R. Evid. 103(d) (emphasis added).
17
On January 17, 2013, the Pennsylvania Supreme Court issued an
order rescinding the Pennsylvania Rules of Evidence and replacing it with a
restyled version modeled on the nonsubstantive amendments made to the FRE in
2011. See In re: Order Rescinding and Replacing the Pennsylvania Rules of
Evidence, No. 586 (Pa. Jan. 17, 2013); see also supra note 13 (referencing the
2011 FRE restyling). The restyled version took effect on March 18, 2013. As
relevant to this opinion, the language containing the definitive ruling
exception moved from Pa.R.E. Rule 103(a) to Pa.R.E. Rule 103(b) and now
appears in a form identical to the current FRE Rule 103(b), which is quoted
supra Part III.A.1.
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language found in the 2000 amendment to FRE Rule 103(a). See
Colo. R. Evid. 103(a); see also Camp Bird Colo., Inc. v. Bd. of
Cnty. Comm’rs, 215 P.3d 1277, 1289-90 (Colo. App. 2009)
(“However, the mining company filed pretrial motions on these
issues, and the trial court made definitive rulings on the record
prior to trial. Once the trial court makes definitive rulings
either at or before trial, the objecting party need not renew the
objection contemporaneously during trial to preserve a claim of
error on appeal. See CRE 103(a)(2). Thus, the issues were
preserved.”). Vermont Rules of Evidence Rule 103(a) was amended
in 2004 to add the same language from the FRE. See Vt. R. Evid.
103(a) & cmt.; see also State v. Brink, 949 A.2d 1069, 1071-72
(Vt. 2008) (citing Vt. R. Evid. 103 cmt.) (“Under the 2004
amendments, a ‘definitive’ ruling on admissibility obviates the
need for a renewed objection at trial.”); Spooner v. Town of
Topsham, 973 A.2d 1202, 1204 (Vt. 2009) (referencing 2004
amendment but concluding that the Town’s objection was not
preserved for appeal because there was no definitive pretrial
ruling and the Town did not renew its objection at trial). South
Dakota’s version of Rule 103(a), codified at South Dakota
Codified Laws (SDCL) § 19-9-3, was amended in 2006 to add the
same language from the amended FRE Rule 103(a). See S.D.
Codified Laws § 19-9-3; see also In re Estate of Duebendorfer,
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721 N.W.2d 438, 444 n.4 (S.D. 2006) (recognizing that SDCL § 19-
9-3 was amended effective July 1, 2006).
As in the aforementioned states, the HRE is based, in
substantial part, on the FRE. See HRE Rule 102 cmt. (“Except for
Articles III and V, these rules have as their model the Federal
Rules of Evidence[.]”). Moreover, as in the aforementioned
states, the Hawai#i Legislature amended HRE Rule 103(a) in 2006
to include language identical to that found in the 2000 FRE Rule
103(a) amendment: “Once the court makes a definitive ruling on
the record admitting or excluding evidence, either at or before
trial, a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.” See 2006 Haw. Sess. Laws
Act 73, § 1 at 129; Addison M. Bowman, Hawaii Rules of Evidence
Manual, § 103-1[1][B] (2010-2011 ed.) (“The effect [of the 2006
amendment] is to eliminate the need to restate the objection or
the proffer in any instance in which the ruling in limine was
‘definitive.’”); see also HRE Rule 103 cmt. (“This rule is
identical with Fed. R. Evid. 103.”). Besides aligning HRE Rule
103 with the amended FRE Rule 103, it should be noted that the
2006 amendment also served to confirm the case law of this court
and the ICA discussed supra in Part III.A that had already
recognized the definitive ruling exception. See Lussier, 4 Haw.
App. at 393-94, 667 P.2d at 826; Craft, 78 Hawai#i at 295, 893
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P.2d at 146; Page, 80 Hawai#i at 208 n.4, 908 P.2d at 556 n.4;
Ditto, 98 Hawai#i at 130 n.9, 44 P.3d at 281 n.9; Barcai, 98
Hawai#i at 490, 50 P.3d at 966 (Acoba, J., concurring). Thus, as
HRE Rule 103 has not been further amended since 2006, the
definitive ruling exception remains good law and must be applied
when appropriate.18
3. In this case, the trial court made a definitive ruling
on the admissibility of evidence regarding speculation on the
Kobashigawas’ motive in filing suit against the City, thus
preserving the issue for appeal
During the October 5, 2009 pretrial hearing, the
circuit court made its rulings on, inter alia, the Kobashigawas’
Motion in Limine No. 1, seeking exclusion of evidence and
argument concerning speculation on the Kobashigawas’ motive in
filing suit against the City, and No. 4, seeking exclusion of
certain parts of Bailey’s deposition testimony. With regard to
Motion in Limine No. 1, the court first indicated its inclination
to deny the motion and then allowed the parties to make any
further arguments for the record. The following exchange then
took place:
MR. PARK[, counsel for the Kobashigawas]: Well, Your
Honor, I have to admit I’m surprised you would be denying
this because it’s established law that the motives of a
18
Although the HRE has not undergone a systematic styling revision
as the FRE did in 2011 and the Pennsylvania Rules of Evidence did in 2013,
those restylings explicitly made no substantive changes. Thus, although the
definitive ruling exception language of HRE Rule 103(a) and FRE Rule 103(b)
are not currently stylistically identical, they remain substantively
identical.
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party in bringing a lawsuit is not really, you know,
relevant and it is prejudicial, you know, to admit evidence
on that point.
THE COURT: I guess, just so that you can understand
where I’m coming from, Mr. Park, while in concept I do tend
to agree with you, but the fact of the matter is that bias,
interest and motive and credibility of witnesses are always
in play. And essentially the [c]ourt’s standard instruction
5.1 comes to mind where there’s a laundry list of things
that the jurors can consider in terms of evaluating the
weight and credibility of the witnesses’ testimony.
(Emphasis added). When then given the opportunity to speak, the
City stated:
MR. LEWALLEN[, deputy corporation counsel]: Your
Honor, just briefly, I think the complaint states for itself
the evidence they are going to present to the [c]ourt, the
plaintiffs will, as they are seeking monetary damages. It’s
not going to be a secret. And we have also -- by the way,
they are not seeking equitable relief from the [c]ourt or
anything like that. There’s one thing that will be asked
for, and that’s money. That issue is going to be there.
. . .
And once again, it’s going to be out there. And this
issue is going to be there, whether or not someone is going
to harp on it, but it’s going to be a factual issue that’s
presented to the jury and we should be able to address that.
The court ruled on the motion as follows:
THE COURT: Well, to the extent that, you know, from
the standpoint that some of the more traditional arguments
can be made, obviously, in a case seeking money damages,
obviously, it comes up from time to time. Certainly
arguments are made as far as the motivations are concerned.
With that, the [c]ourt will confirm its ruling, will
deny the motion, does intend to issue a cautionary, which I
will provide the parties with copies of what the [c]ourt has
sort of drafted and then we can sort of visit this
sufficiency or propriety of the way those are drafted at a
later point. But basically, the [c]ourt does intend to sort
of limit its consideration, any bias, interest or motive, if
any is shown.
All right. So with that, that dispenses of
plaintiff’s number one.
(Emphases added). With regard to Motion in Limine No. 4, through
which the Kobashigawas sought to exclude certain statements made
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by Bailey in her deposition testimony, the circuit court granted
in part and denied in part after argument by both parties. The
court’s ruling on this motion was sufficiently specific as to
which statements would be admitted and which would not:
“Basically, the only portions that I’m going to sustain and
disallow are those portions that I alluded to. The two portions
that I addressed with Mr. Park will be permitted. And if I was
unclear about that, I apologize.”
A trial court’s ruling on a motion in limine is
definitive when it “leaves no question that the challenged
evidence will or will not be admitted at trial[.]” Quad City
Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 90
(Iowa 2011) (citing State v. Alberts, 722 N.W.2d 402, 406 (Iowa
2006); State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975)).
Further, as we have discussed, when a definitive ruling has been
made, “counsel need not renew its objection to the evidence at
trial to preserve error.” Id. This is because “[i]n such a
situation, the decision on the motion has the effect of [an
evidentiary] ruling.” Id. (citing State v. Tangie, 616 N.W.2d
564, 569 (Iowa 2000)) (first brackets added and second brackets
in original; internal quotation marks omitted). We also note
that “[t]he key to deciding whether the general rule or the
[definitive ruling] exception applies in a given case is
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determining what the trial court purported to do in its ruling.”
Id. (citing Alberts, 722 N.W.2d at 406).
With these principles in mind, we conclude that the
circuit court’s rulings on Motion in Limine No. 1 and Motion in
Limine No. 4 were definitive and therefore that the Kobashigawas’
objections to the admission of the evidence allowed by those
rulings were preserved for appeal. There is no need to expound
further on the definitiveness of the ruling on Motion in Limine
No. 4, as the court specifically ruled that certain statements
from Bailey’s deposition testimony would be admitted at trial and
that certain other statements were excluded. With regard to
Motion in Limine No. 1, the circuit court stated in its ruling
that “bias, interest[,] and motive . . . are always in play.”
Accordingly, the court neither suggested that the introduction of
such evidence would depend on any foundational prerequisites nor
invited the Kobashigawas to renew their objection during trial or
ask the court to reconsider its ruling. In fact, the
definitiveness of the ruling on No. 1 is underlined by the
court’s statement that it had already drafted a cautionary jury
instruction--on its own initiative--on the basis that any
evidence on motive would definitely be admitted once offered by
the City. Given the foregoing, we emphasize that the court’s
ruling on No. 1 was a definitive one because the court “did not
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equivocate or state it would reconsider its ruling at trial.”
Quad City, 804 N.W.2d at 90-91.
We thus contrast the circuit court’s rulings on Motion
in Limine No. 1 and Motion in Limine No. 4 with its ruling on
Motion in Limine No. 2, through which the Kobashigawas had sought
to exclude evidence and argument by the City regarding the number
of pedestrian injuries or deaths at the mid-block crosswalk at
issue in this case; such evidence would support the City’s
argument that William’s death was a single, isolated incident.
While Motion in Limine No. 2 is not at issue on appeal, we take
note of the court’s ruling on that motion as an example of a non-
definitive ruling issued during the same pretrial hearing:
THE COURT: All right. This is the [c]ourt’s ruling:
[c]ourt will respectfully at this point deny the motion and
permit the City, subject to appropriate foundation, to
introduce evidence, if it has this evidence, regarding
indications or lack of indications of other incidents at
this crosswalk. And it may not come down to specific
numbers, but certainly I think more generalized type of, I
guess, inference can be made basically from the lack of
that. It will depend on whether or not you folks are able
to establish that foundation.
(Emphases added). The circuit court did not make any such
reservations in its rulings on No. 1 and No. 4. Accordingly, by
obtaining definitive rulings on these motions, the Kobashigawas
did not waive their objection, as articulated in their motions in
limine, to evidence or argument speculating on their motive for
bringing suit against the City; rather, given that such evidence
and argument would unequivocably be admitted during trial, the
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Kobashigawas were entitled to rely in good faith on the court’s
rulings in formulating their trial strategy. Accordingly, the
objection was preserved, even in the absence of renewed
objections at the time such evidence and argument were presented
by the City during trial.
4. In light of the court’s unequivocal ruling, the
Kobashigawas also did not waive their objection by introducing
the adverse evidence themselves
As a related matter, we note that, under the
circumstances of this case, the introduction of Bailey’s
objected-to deposition testimony by the Kobashigawas themselves
in their case-in-chief also did not constitute a waiver of their
objection to that evidence. Generally, a party cannot allege an
error on appeal premised on evidence introduced into the record
by that party. See, e.g., Carlyle v. Lai, 783 S.W.2d 925, 931
(Mo. App. 1989) (Fenner, J., dissenting) (“There cannot be a
finding of prejudice when the information of which appellants
complain was already placed before the jury by the appellants
themselves.”). However, several appellate courts have concluded
that when a trial court has denied a party’s motion in limine to
exclude evidence likely to be introduced by the opposing party at
trial, the moving party does not then waive its objection to the
adverse evidence by preemptively introducing the evidence itself
in its case-in-chief.
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In Beil v. Mayer, a motor vehicle accident case, Beil
had filed a pretrial motion in limine to exclude evidence of the
amount of settlement agreements attained in lawsuits arising from
two unrelated accidents, one predating and one postdating the
accident at issue. 789 P.2d 1229, 1231 (Mont. 1990). The trial
court denied the motion with respect to the later settlement and
allowed Mayer to introduce evidence of the settlement amount;
following denial of the motion, Beil stipulated to a statement of
facts concerning the settlement amount and the statement was read
to the jury during trial. Id. “Beil also voluntarily referred
to the settlement in his opening argument and through testimony
during his case in chief.” Id. at 1232. The jury found Mayer
not negligent, and the trial court denied Beil’s motion for a new
trial; on appeal, Beil argued that the trial court erred in
admitting the settlement amount on the grounds that it was
irrelevant and prejudicial. Id. at 1231. Mayer argued that the
settlement amount was relevant to the issue of damages and that
Beil did not preserve the issue because he failed to renew his
objection during trial and stipulated to agreed facts about the
settlement. Id. at 1231, 1232-33. The Montana Supreme Court
agreed with Beil, noting that after his motion in limine
regarding the settlement amount was denied,
he attempted to deal with its imminent introduction in the
best way that he could. As a matter of trial tactics, he
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brought up the settlement during his case in chief, so that
he could attempt to minimize its prejudicial impact. He
entered into the stipulation in an effort to prevent
needless disagreement over known facts which were part of
the settlement.
Id. at 1233. That court thus held that because the same evidence
that Beil sought to exclude was then introduced at trial, Beil’s
original objection to the evidence was sufficient to preserve the
issue for appeal. Id.In O’Bryan v. Hedgespeth, also a motor vehicle accident
case, O’Bryan had filed a pretrial motion in limine to exclude
evidence of collateral source payments he had received; the trial
court noted the objection to the evidence but denied the motion.
892 S.W.2d 571, 573 (Ky. 1995). Relying on the trial court’s
ruling, O’Bryan himself introduced evidence of the amounts and
sources of benefits he had received; although the jury entered a
verdict for O’Bryan, it only awarded him the amount of his out-
of-pocket medical expenses and did not make any award for the
amount representing the collateral source payments. Id. The
Kentucky Supreme Court noted in its opinion that “[O’Bryan]
elected to go forward with the evidence of collateral source
payments in the presentation of [his] case once [his] motion in
limine was overruled, rather than to leave it to the defendant to
present this evidence.” Id. at 574. Although Hedgespeth argued
that the court should not assume she would have introduced the
evidence if O’Bryan did not introduce it himself, the court
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strongly and sharply disagreed: “The likelihood the defendant
would not present this evidence after prevailing against the
motion in limine borders on absurdity.” Id. Accordingly, the
court held that “once a motion in limine to exclude evidence has
been overruled, a party may go forward with adverse evidence to
avoid the appearance of concealment and still ‘preserve error for
appellate review.’” Id. at 575 (quoting Ky. R. Evid. 103(d)).
Most recently, the Florida Supreme Court spoke on this
subject in a case decided to resolve a split in the Florida
district courts of appeal. In Sheffield v. Superior Insurance
Co., also a motor vehicle accident case, Sheffield settled with
the tortfeasor and then filed suit against Superior, her
uninsured motor insurance carrier. 800 So. 2d 197, 199 (Fla.
2001). As in O’Bryan, Sheffield filed a pretrial motion in
limine “seeking to exclude collateral source evidence regarding
both insurance and other benefits provided by her employer.” Id.After the trial court denied the motion, the parties “stipulated
that Sheffield would have a standing objection to the
introduction of collateral source evidence and would not have to
contemporaneously or spontaneously object during trial in order
to preserve the objection for appeal.”19 Id. Sheffield then
19
Sheffield was decided in 2001 and therefore predated the 2003
amendment to Florida’s version of FRE Rule 103, codified at Fla. Stat. Ann. §
90.104, incorporating the definitive ruling exception. See In re Amendments
(continued...)
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“introduced collateral source evidence in her case-in-chief,
including the fact that she had group medical insurance to defray
some of the costs of treatment.” Id. Also as in O’Bryan, the
jury returned a verdict for Sheffield but less than what she had
sought; the trial court also denied her motion for a new trial on
the issue of damages. Id. On appeal, the First District Court
of Appeal affirmed by a vote of 2-1, concluding that while the
trial court erred in denying Sheffield’s motion in limine, “her
own introduction of such collateral source evidence precludes
reversal for a new trial on that ground.” Id. (quoting Sheffield
v. Superior Ins. Co., 741 So. 2d 533, 534 (Fla. App. 1999))
(brackets and internal quotation marks omitted). Judge Browning
dissented, stating that “because Sheffield was faced with the
trial court’s incorrect ruling, Sheffield had every right to
attempt to defuse the issue and initially present collateral-
source evidence.” Id. at 200 (quoting Sheffield, 741 So. 2d at
540 (Browning, J., dissenting)). On further appeal, the Florida
Supreme Court agreed with the First District majority that the
trial court erred in denying Sheffield’s motion in limine and
19
(...continued)
to the Florida Evidence Code-Section 90.104, 914 So. 2d 940, 941 (Fla. 2005)
(noting the amendment as passed by the Florida Legislature in 2003 and
adopting the amended rule “to the extent that it is procedural”).
Nevertheless, because the parties stipulated that a contemporaneous objection
was unnecessary for purposes of preserving the objection on appeal, the
analysis in Sheffield remains valid under the amended section 90.104.
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allowing evidence of collateral sources; the question thus became
“whether Sheffield’s counsel, by introducing collateral source
evidence in Sheffield’s case-in-chief after the trial court
erroneously denied her motion in limine, waived any objection for
appellate review.” Id. at 200-01. In trying to reconcile the
different approaches taken in different district courts of
appeal, as well as by itself in a prior case, the Florida Supreme
Court agreed with the general principles that a party should not
be penalized for relying in good faith on a trial court’s
incorrect ruling and that introduction of evidence adverse to a
party does not waive that party’s objection to the evidence in
light of the trial court’s previous denial of a motion in limine
to exclude. See id. at 201-02. The court concluded that the
concept of invited error--and thus waiver of any objection--does
not apply where the trial court makes an adverse, unequivocal
evidentiary ruling that then forces a party to preemptively
introduce the evidence as a matter of trial strategy to minimize
its prejudicial impact. Id. at 202; see also Chenoweth v. Kemp,
396 So. 2d 1122, 1127 (Fla. 1981) (Sundberg, C.J., dissenting)
(quoted in Sheffield, 800 So. 2d at 202) (“In light of this
ruling, appellant had every right, and indeed had no choice, but
to comment upon the evidence in an attempt to mitigate the damage
soon to be done by the erroneous inclusion of the written
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finding. Trial court error, not tactics, dictated appellant’s
actions.”). In quashing the First District’s judgment and
remanding the case for a new trial, the court thus held: “once a
trial court makes an unequivocal ruling admitting evidence over a
movant’s motion in limine, the movant’s subsequent introduction
of that evidence does not constitute a waiver of the error for
appellate review.” Id. at 203.
In this case, the circuit court made an unequivocal
ruling that evidence adverse to the Kobashigawas would be
admitted at trial. Faced with the inevitability that the City
would introduce Bailey’s deposition testimony to support its
theory of the Kobashigawas’ motive for filing suit, the
Kobashigawas introduced the testimony themselves as a matter of
trial strategy, aiming to minimize the prejudice that would
result from admission of the evidence. By introducing the
evidence themselves, the Kobashigawas sought to avoid putting
themselves in a position where they would have to object in front
of the jury after its introduction and each reference to it
thereafter by the City. The Kobashigawas made these very
arguments to the ICA, and although the ICA did not comment on
them in its opinion, we agree with the Kobashigawas and the
courts cited supra that have addressed this issue. In
particular, we adopt the holding from Sheffield that once a trial
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court makes an unequivocal ruling admitting evidence over a
party’s motion in limine to exclude, that party’s subsequent
introduction of the evidence does not constitute a waiver of its
objection for appellate review.
For all of the foregoing reasons, the Kobashigawas
preserved their objection to admission of any evidence and
argument speculating on their motive for filing suit despite the
denial of their pretrial motions in limine and their subsequent
self-introduction of the adverse evidence. The ICA, therefore,
did not need to resort to plain error review to reach the merits
of the error alleged by the Kobashigawas on appeal. We now turn
to the merits.
C. The ICA did not err in concluding that the errors occurring
during trial warranted remanding the case for a new trial
1. The ICA did not err in holding that the circuit court’s
cautionary jury instruction was an erroneous statement of the law
In its application to this court, the City first argues
that the ICA gravely erred in concluding that the circuit court’s
cautionary jury instruction on bias, interest, or motive
constituted an erroneous statement of the law because, according
to HRE Rule 609.1, evidence pertaining to a witness’s bias,
interest, or motive is always admissible.
HRE Rule 609.1 states, in full:
(a) General rule. The credibility of a witness may be
attacked by evidence of bias, interest, or motive.
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(b) Extrinsic evidence of bias, interest, or motive.
Extrinsic evidence of a witness’ bias, interest, or motive
is not admissible unless, on cross-examination, the matter
is brought to the attention of the witness and the witness
is afforded an opportunity to explain or deny the matter.
This rule is often invoked in the context of criminal cases; as
this court has stated, “[b]ias, interest, or motive is always
relevant under HRE Rule 609.1. So long as a proper foundation is
laid, bias can be raised at any time by the witness’s testimony
or other evidence.” State v. Estrada, 69 Haw. 204, 220, 738 P.2d
812, 823 (1987) (citing State v. Murphy, 59 Haw. 1, 575 P.2d 448(1978)). Of course, the rule also applies to witnesses in civil
cases: for example, the ICA cited to the rule in Coyle v.
Compton, 85 Hawai#i 197, 210, 940 P.2d 404, 417 (App. 1997), and
Cenal v. Ragunton, 106 Hawai#i 298, 304, 104 P.3d 336, 342 (App.
2004). (In both of those cases, however, the evidence that would
have been used to impeach the witnesses was ultimately excluded
under HRE Rule 40320 as being more prejudicial than probative.)
The circuit court was therefore correct only insofar as
it stated, by quoting Rule 609.1, that the credibility of a
witness may be attacked by evidence of bias, interest, or motive,
and that such evidence pertaining to a witness’s credibility is
always relevant and admissible at trial. The circuit court
20
HRE Rule 403 provides: “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
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erred, however, in ruling that such evidence could be used by the
jury in considering the Kobashigawas’ motives as plaintiffs in
filing the present lawsuit.
As the Kobashigawas argued and the ICA recognized, it
is a long-standing principle of law that a plaintiff’s motive in
filing a lawsuit is otherwise immaterial to resolving the merits
of the dispute. Kobashigawa, 126 Hawai#i at 65, 266 P.3d at 473;
see also Dickerman v. N. Trust Co., 176 U.S. 181, 190 (1900) (“If
the law concerned itself with the motives of parties new
complications would be introduced into suits which might
seriously obscure their real merits.”); Carter v. Ah So, 12 Haw.
291, 302 (1899) (“So far as the law is concerned, if the
plaintiff has made out a case on the facts, it is immaterial what
[the] motive was.”); Lucas v. American-Hawaiian Eng’g & Constr.
Co., 16 Haw. 80, 85-86 (1904) (“[T]he weight of authority is that
the motives of a taxpayer in bringing a suit can not be inquired
into if he has shown that he has the other qualifications to
sue. . . . That motives can not be inquired into is well
settled.”); Karim v. Gunn, 999 A.2d 888, 890 (D.C. 2010)
(internal quotation marks and citation omitted) (“The motive of a
party in bringing an action generally is immaterial to the
question whether the action may be maintained.”); Somers v. AAA
Temp. Servs., 284 N.E.2d 462, 465 (Ill. App. 1972) (“It is
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generally accepted that where the plaintiff asserts a valid cause
of action, [the plaintiff’s] motive in bringing the action is
immaterial.”).
The City argues to this court that the cases cited by
the ICA and the Kobashigawas, and mentioned immediately supra,
are inapposite because they do not address the issue of “whether
evidence pertaining to a plaintiff’s motive for filing suit may
be properly considered for the purposes of assessing a witness’
credibility.” In framing the issue in such a manner, however, it
appears that the City confuses, as it also did in the trial court
and before the ICA, motive evidence permissible under Rule 609.1
to impeach the credibility of a witness with evidence of the
plaintiff’s motive for filing suit, which, as discussed, is
irrelevant and thus inadmissible. Under Rule 609.1, “[t]he
credibility of a witness may be attacked by evidence of bias,
interest, or motive” of that witness. A plain reading of the
rule does not suggest that testimony of a witness, even a
disinterested one such as Bailey here, may somehow be used to
suggest that the Kobashigawas had an improper motive in filing
suit. Looking beyond the rule, there is also no other authority
for the proposition that, pursuant to Rule 609.1, the testimony
of a witness may be used to question the bias, interest, or
motive of the plaintiff bringing the suit.
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Thus, based on well-established and long-standing
precedent, a plaintiff’s motive in filing a lawsuit is irrelevant
provided that the plaintiff has established a valid cause of
action, and we agree with the ICA that the circuit court erred
here in instructing the jury to consider certain evidence for
that purpose even though the instruction was given as a
cautionary, limiting one.
2. The ICA did not err in concluding that the circuit
court erred in allowing the City to comment on motive during its
closing argument
The City also argues in its application that the ICA
erred by concluding that the circuit court erred in allowing the
City to comment on the Kobashigawas’ motive during its closing
argument. Rather, the City contends that nothing in its closing
argument was improper because it simply commented on evidence
that had been properly admitted by the circuit court during
trial. As quoted supra in Part I.B, the City made two separate
references in its closing argument to Bailey’s testimony and the
issue of the Kobashigawas’ monetary motive in filing suit against
the City. Because the Kobashigawas’ motive in filing suit was
never relevant to the City’s liability under a negligence theory,
the City should not have been allowed to reference it, in closing
or at any other time. As we have thoroughly discussed, the
circuit court’s ruling to admit evidence and allow argument on
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motive was in error, and its cautionary instruction given to the
jury contained an erroneous statement of the law. As the ICA
noted, “erroneous instructions are presumptively harmful and are
a ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial.”
Kobashigawa, 126 Hawai#i at 66, 266 P.3d at 474 (quoting Nelson,
97 Hawai#i at 386, 38 P.3d at 105) (internal quotation marks and
brackets omitted). In examining the record as a whole, including
the motions in limine, the trial proceedings, the erroneous
instruction, and the City’s closing argument, it does appear that
the error was prejudicial to the Kobashigawas, and we agree with
the following conclusion in the ICA’s opinion:
Because an improper jury instruction requires the error to
be read in light of the record as a whole and [the] City’s
closing argument added to the harm caused by the circuit
court’s erroneous jury instruction, the circuit court erred
in allowing [the] City to comment in its closing argument on
the Kobashigawas’ motives.
Id. at 66-67, 266 P.3d at 474-75; see also Kakligian v. Henry
Ford Hosp., 210 N.W.2d 463, 465 (Mich. App. 1973) (quoted in
Kobashigawa, 126 Hawai#i at 66, 266 P.3d at 474) (noting that “in
conjunction with the lower court’s failure to properly instruct
the jury, a defense counsel’s reference to the plaintiff’s motive
in bringing suit was grounds for a new trial”).
Thus, the ICA did not err in concluding that the
circuit court erred in allowing the City to comment during its
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closing argument about the Kobashigawas’ motive for filing suit.
Because the closing argument added to and was intertwined with
the harm introduced by the court’s erroneous jury instruction on
motive, we cannot say that the ICA erred in vacating the circuit
court’s judgment on this additional ground.
IV. CONCLUSION
Accordingly, subject to the foregoing discussion
modifying the ICA’s December 2, 2011 published opinion, we affirm
the ICA’s December 22, 2011 judgment vacating the Judgment
Pursuant to Special Verdict filed in circuit court on March 25,
2010 and remanding this case for a new trial.
Traci Rei Morita, for /s/ Mark E. Recktenwald
petitioner
/s/ Paula A. Nakayama
Arthur Y. Park, Patricia Kim
Park, and John C. McLaren /s/ Simeon R. Acoba, Jr.
for respondents
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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