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Ho v. Nishijima12/30/2003
Plaintiffs-appellants/cross-appellees Byung H. Ho (Mr. Ho) and Moon S. Ho (Mrs. Ho) [hereinafter, collectively, "the Hos"] appeal from (1) the August 20, 1998 judgment of the circuit court of the first circuit, the Honorable Marie N. Milks presiding, finding in favor of Defendant-appellee/cross-appellant Gary Nishijima (Nishijima), and (2) the August 25, 1998 order denying their motion for reconsideration of the circuit court's order granting in part and denying in part Nishijima's first amended notice of taxation of costs.
On appeal, the Hos argue that the circuit court: (1) abused its discretion in granting Nishijima's motion in limine to limit the testimony of Timothy Olderr, M.D. (Dr. Olderr) and Yoshio Hosobuchi, M.D. (Dr. Hosobuchi), inasmuch as the court incorrectly relied on Glover v. Grace Pacific Corp., 86 Hawaii 154, 948 P.2d 575 (App. 1997), to bar Mr. Ho's treating physicians from rendering opinions about the cause of the injuries Mr. Ho sustained in the November 9, 1993 accident [hereinafter, "the accident"]; (2) abused its discretion in sanctioning them for violating the court's rulings and orders limiting their experts' testimony by striking Dr. Hosobuchi's entire testimony; (3) abused its discretion in sanctioning them for violating the court's rulings and orders limiting their experts' testimony by allowing Nishijima's urological expert, William J. Yarbrough, M.D. (Dr. Yarbrough), to testify after previously barring Dr. Yarbrough's testimony because Nishijima failed to disclose his opinions prior to the discovery cutoff date; (4) abused its discretion in permitting Nishijima's counsel to cross-examine Mr. Ho's son, Edward Ho (Edward), about whether he was injured in the accident, inasmuch as the court's permission was contrary to Walsh v. Chan, 80 Hawaii 212, 908 P.2d 1198 (1995); (5) erred in denying their motion for directed verdict, inasmuch as the evidence uncontrovertedly proved that the accident was a substantial factor in causing Mr. Ho's neck and back injuries; (6) abused its discretion in denying their motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, inasmuch as there was no dispute that Mr. Ho injured his neck and back in the accident and the verdict was against the weight of the evidence presented; (7) improperly awarded costs to Nishijima because it failed to consider equities in taxing costs against them; and (8) erred in awarding Nishijima (a) witness fees for persons who did not testify or appear at trial, (b) $3,891.74 in copying and duplication costs, and (c) $11,562.98 in deposition costs, inasmuch as these fees are not recoverable under Hawaii law.
On cross-appeal, Nishijima argues that the circuit court abused its discretion in: (1) excluding the testimony of his biomechanical engineer expert, Carley Ward, M.D. (Dr. Ward); and (2) initially excluding the testimony of Dr. Yarbrough, inasmuch as the court erroneously concluded that, under Glover, he was required to disclose his experts' opinions prior to the discovery cutoff date.
We hold that the circuit court abused its discretion by allowing Nishijima's counsel to cross-examine Edward about whether he was injured in the accident, for purposes of comparison, inasmuch as this court's decision in Walsh prohibited this testimony. This abuse of discretion requires that the August 20, 1998 judgment in favor of Nishijima be vacated and remanded for a new trial. Because we remand this case for a new trial, awarding costs at this time is premature, and, therefore, we decline to address the Hos' appeal of the August 25, 1998 order denying the Hos' motion for reconsideration of the circuit court's order granting in part and denying in part Nishijima's fir
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