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Ho v. Nishijima12/30/2003
cted Dr. Hosobuchi that he could not testify that the accident caused Mr. Ho's bladder and sexual dysfunctions. The court further instructed Dr. Hosobuchi not to refer to the accident at all. A careful examination of the record, however, reveals that the Hos' counsel's line of questioning invited Dr. Hosobuchi to render an opinion about the link between Mr. Ho's injuries and the accident. In direct contravention of the court's ruling, Dr. Hosobuchi testified that he thought Mr. Ho's injuries were related to the accident. This was a clear violation of the court's order.
In requesting either a mistrial or that Dr. Hosobuchi's entire testimony be stricken, Nishijima pointed to the cumulative prejudicial effect of the Hos' repeated violation of the court's ruling limiting the testimony of both Dr. Hosobuchi and Dr. Olderr:
We already have two of the treating physicians who weren't supposed to testify in the manner that they did, did testify. And if the court will allow this to go unpunished, then, you know, it makes a mockery of the whole sense of filing motions in limine.
You know, we plan our cases based on those motions. We have a clear understanding of what is or should not come in, you know.
Thus, contrary to the Hos' argument, the court's decision to strike Dr. Hosobuchi's entire testimony was not extreme because Dr. Olderr had previously testified about Mr. Ho's injuries and therefore, Dr. Hosobuchi's testimony would be cumulative. Moreover, the court expressed great concern about the Hos' daily violations of the court's rulings:
The Court: Well, one possibility is that I've thought of telling the jury they can only consider the testimony of Dr. Hosobuchi to his treatment and to no other basis, that any -- any question to him about what caused the injury , they're to disregard.
Mr. Kim: Because you've already instructed the jury with respect to the mention that was made during Dr. Olderr's opinion to the cause of the injuries that he treated him for, you instructed them to disregard that testimony, and I think some sanction along that line may be more appropriate.
The Court: I know there's just too much. There's just the cumulation, I mean, everyday. This is not something that came up once during the trial, but I'm dealing with it everyday.
(Emphasis added.)
Furthermore, the Hos fail to suggest any lesser sanction that would be more appropriate.
Therefore, given the cumulation of prohibited testimony and the prejudice to Nishijima, the circuit court did not abuse its discretion to sanction the Hos for repeatedly violating the court's rulings and orders by striking Dr. Hosobuchi's entire testimony.
D. The Circuit Court Did Not Abuse Its Discretion When It Sanctioned the Hos for Repeatedly Violating the Court's Rulings and Orders by Allowing Dr. Yarbrough to Testify, Despite Previously Barring His Testimony
The Hos argue that the court abused its discretion when it sanctioned them by allowing Dr. Yarbrough to testify after Dr. Olderr violated the court's order limiting his testimony. Specifically, the Hos contend that, because the court previously barred Dr. Yarbrough from testifying after Nishijima failed to produce his opinions prior to the November 20, 1997 discovery cutoff date, allowing his testimony would unjustly reward Nishijima. Because the Hos violated the court's rulings, which resulted in them gaining two experts testifying about sexual and bladder dysfunction whereas Nishijima had none, the court allowed Dr. Yarbrough to testify to avoid any prejudice that would result to Nishijima. Thus, the court did not abuse its discretion in sanction
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