Ho v. Nishijima12/30/2003
st amended notice of taxation of costs. In all other respects, the Hos' arguments are moot. Nonetheless, we address their points of error, as well as Nishijima's points of error on cross-appeal, as guidance to the circuit court on remand.
I. BACKGROUND
A. Factual History
The present matter arises out of two motor vehicle accidents which occurred on November 9, 1993 and March 3, 1995, respectively. On November 9, 1993, Mr. Ho was traveling east-bound along the H-1 viaduct near the Honolulu International Airport, in the City and County of Honolulu, when Nishijima's pickup truck rear-ended Mr. Ho's pickup truck. Mr. Ho sustained permanent injuries to his neck and back and suffered from sexual dysfunction. In addition, Mr. Ho allegedly suffered from pain to his body and mind, emotional distress and loss of enjoyment of life as a result of the accident. On March 3, 1995, Mr. Ho was involved in another motor vehicle accident when Albert Lagrimas (Lagrimas) sideswiped and then struck Mr. Ho's pickup truck with a semi-tractor trailer, from which Mr. Ho sustained further injury to his neck and back.
B. Procedural History
On June 29, 1995, the Hos filed a complaint against Nishijima. Mr. Ho sought special and general damages in an amount to be determined at trial. Mrs. Ho sought damages for emotional distress and loss of affection, society, companionship and consortium.
On August 19, 1996, the Hos and Nishijima stipulated to amend the complaint to add Lagrimas as an additional defendant. Lagrimas' employer, Mercantile Trucking Service, Ltd. (Mercantile Trucking) was later added as another defendant.
The matter proceeded through the Court Annexed Arbitration Program (CAAP), wherein, on August 5, 1997, the arbitrator awarded the Hos $134,060.50 in damages, comprised of $66,723.43 in special damages and $66,666.66 in general damages. Subsequently, on September 2, 1997, Nishijima, Lagrimas and Mercantile Trucking filed their respective notices of appeal and requests for a trial de novo.
Prior to the commencement of trial, the Hos settled their claims against Lagrimas and Mercantile Trucking. Both the Hos and Nishijima, thereafter, agreed to dismiss, with prejudice, the case against Lagrimas and Mercantile Trucking.
On October 31, 1997, the Hos filed a motion (1) to strike Nishijima's final naming of witnesses, on the ground that Nishijima's witnesses were untimely named, or, (2) in the alternative, to exclude Drs. Yarbrough and Ward as defense experts. On November 26, 1997, a hearing was held on the Hos' motion, the Honorable Virginia L. Crandall presiding. The court denied the Hos' motion and further ordered Nishijima to produce Dr. Ward's final opinions to the Hos' counsel on December 1, 1997, eleven days after the discovery cutoff date. Subsequently, on December 1, 1997, the Hos received Dr. Ward's report. On December 4, 1997, the Hos received Dr. Yarbrough's report.
On January 21, 1998, one day before trial was to commence, the Hos filed a motion in limine to limit the testimony of Drs. Yarbrough, Ward, and Maurice W. Nicholson, M.D. (Dr. Nicholson), arguing, inter alia, that their final opinions were not timely disclosed. That same day, a hearing was held on the Hos' motion and the court granted the motion, holding that Drs. Yarbrough and Ward would not be permitted to testify unless their opinions were rendered and produced prior to the discovery cutoff date. On January 27, 1998, the court entered its order to that effect. On January 28, 1998, Nishijima filed a motion for reconsideration of the court's order granting in part and denying in part the Hos' motion in limine to exclude the testim
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