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Kamaunu v. Kaaea3/28/2002
no bar; comparative negligence; findings of fact and special verdicts. (a) Contributory negligence shall not bar recovery in any action by any person . . . to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person or in the case of more than one person, the aggregate negligence of such persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.
(b) In any action to which subsection (a) of this section applies, the court, in a non-jury trial, shall make findings of fact or, in a jury trial, the jury shall return a special verdict which shall state:
(1) The amount of damages which would have been recoverable if there had been no contributory negligence; and
(2) The degree of negligence of each party, expressed as a percentage. (Emphases added.)
In his answering brief, Plaintiff states that " t is not uncommon for judges during settlement conferences to inquire about what occurred during the arbitration process. That information provides the court with valuable insight as to whether a party has done a reasonable and thorough settlement evaluation." If Plaintiff's representation is true, we urge that the practice be ceased immediately.
B. Dr. Ferrier's Testimony
Defendant contends that the circuit court erred in allowing Dr. Ferrier to testify at trial as to the medical expenses incurred by Plaintiff. Defendant points out that in Dr. Ferrier's answers to interrogatories, which were never supplemented, Dr. Ferrier never indicated that he would render an opinion on Plaintiff's medical expenses.
Since the record on appeal includes neither the interrogatories propounded to Dr. Ferrier nor Dr. Ferrier's answers to the interrogatories, it is impossible for us to determine the merits of Defendant's contention.
C. The Tort Threshold Requirement
The final argument raised by Defendant on appeal is that the circuit court should have granted his motion for directed verdict because Plaintiff failed to adduce expert testimony as to the reasonableness and necessity of Plaintiff's claimed medical expenses and therefore failed to prove that Plaintiff's medical-rehabilitative expenses met the tort threshold requirements set forth in HRS ยง 431:10C-306.
In denying Defendant's motion for directed verdict, the circuit court stated that it had "already decided as a matter of sanction that [Defendant was] responsible here, and subsumed within that decision is any prima facie requirement" to establish the reasonableness and necessity of Plaintiff's medical expenses. Since the circuit court's denial of the directed verdict motion was premised on the sanctions order, which we have concluded was improperly entered, we vacate the order denying Defendant's motion for directed verdict.
CONCLUSION
In light of the foregoing discussion, we vacate: (1) the Order Imposing Sanctions, entered by the circuit court on July 9, 1999; (2) the Judgment, entered by the circuit court on September 17, 1999; and (3) the circuit court's oral order, announced on September 8, 1999, denying Defendant's motion for directed verdict. We remand this case for a new trial that complies with the guidelines set forth in this opinion.
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