Ditto v. McCurdy11/6/1997
OPINION OF THE COURT BY MOON, C.J.
We granted defendant-appellant-petitioner John A. McCurdy, Jr., M.D.'s (Dr. McCurdy) petition for a writ of certiorari to review the decision of the Intermediate Court of Appeals (ICA) in Ditto v. McCurdy, 86 Haw. 93, 947 P.2d 961, 1997 Haw. App. LEXIS 93 (1997). For the reasons discussed below, we (1) reverse the jury's finding of liability with respect to fraud; (2) vacate the jury's award of punitive damages; and accordingly (3) remand with instructions to the trial court to dismiss the fraud count and conduct a new trial solely on the issue of the amount of punitive damages owed. In all other respects, we affirm.
I. BACKGROUND
The facts of the underlying case are set forth in detail in the ICA's decision. See Ditto, slip op. at 2-9. Briefly stated, plaintiff-appellee-respondent Janie Ditto was disfigured as a result of breast augmentation surgery performed by Dr. McCurdy, an ear, nose, and throat specialist and cosmetic surgeon. Ditto filed a complaint against Dr. McCurdy and his assistant, alleging negligence and fraud and claiming punitive damages. Following a three-week trial in 1992, the jury, in its special verdict, found Dr. McCurdy liable for negligence, fraud, and punitive damages, awarding Ditto $3,500 in special damages, $1,000,000 in general damages, $400,000 in damages for fraud, and $600,000 in punitive damages.
On appeal before the ICA, Dr. McCurdy raised numerous points of error, which he asserted warranted judgment in his favor or, alternatively, a new trial. Most of his claims were rejected by the ICA. The ICA did agree, however, that the trial court abused its discretion when it allowed Plaintiff's expert, Don Parsa, M.D. (Dr. Parsa), to testify in rebuttal that Dr. McCurdy did not have the minimum qualifications to perform breast surgery in any Hawai'i hospital. The ICA therefore vacated the judgment on the fraud claim and remanded for a new trial on fraud. Dr. McCurdy filed a timely petition for writ of certiorari, which we granted on July 3, 1997.
II. Discussion
A. The ICA'S Decision
Relying on our decision in Takayama v. Kaiser Foundation Hospital, 82 Haw. 486, 923 P.2d 903 (1996), the ICA determined that the trial court had abused its discretion by admitting the testimony of plaintiff's expert, Dr. Parsa, in rebuttal. We disagree. Under Takayama, "the introduction of evidence in rebuttal and in surrebuttal is a matter within the discretion of the trial court and appellate courts will not interfere absent an abuse thereof." Takayama, 82 Haw. at 495, 923 P.2d at 912 (quoting Yorita v. Okumoto, 3 Haw. App. 148, 156, 643 P.2d 820, 826 (1982)). In order to determine whether there is an abuse of discretion, the reviewing court must examine the sequence of the trial. Takayama, 82 Haw. at 496, 923 P.2d at 913.
1. The sequence of trial and the rebuttal testimony
The essence of Ditto's fraud claim was that Dr. McCurdy had a duty to disclose that he was not a board certified plastic surgeon because that fact was material to Ditto's decision to allow him to perform breast augmentation surgery on her. Ditto thus had the burden of proving, inter alia, that Dr. McCurdy failed to disclose that he was not a board certified plastic surgeon and that it was a material fact.
Anticipating Dr. McCurdy's defense -- that he was a board certified cosmetic surgeon and thus certified to perform Ditto's surgery -- Ditto'
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