Preview:

NOT FOR PUBLICATION NO. 25303 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I DARDANELA SALES, Plaintiff-Appellant, Cross-Appellee, v. TOKUHISA MANNING, Defendant-Appellee, Cross-Appellant, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; ROE "NON-PROFIT" CORPORATIONS 1-10; and ROE GOVERNMENTAL ENTITIES 1-10, Defendants APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIV. NO. 01-1-0201) MEMORANDUM OPINION Burns, C.J., Lim and Foley, JJ.)

(By:

Plaintiff-Appellant/Cross-Appellee Dardanela Sales (Sales) appeals from that part of the circuit court's August 6, 2002 Final Judgment awarding her only $850 special damages and $1,500 general damages against Defendant-Appellee/Cross-Appellant Tokuhisa Manning (Manning). Manning cross-appeals from that part

of the August 6, 2002 Final Judgment awarding her only $2,786.57 costs. We vacate the August 6, 2002 Final Judgment and remand

for a new trial. RELEVANT BACKGROUND In April 2002, Sales was a 51-year-old self-employed hairdresser, and Manning was a 74-year-old widowed retiree. On May 6, 1998, Manning drove her car such that it collided with the back of Sales' car. In her answering brief,

1

NOT FOR PUBLICATION Manning states that "[t]his May 1998 accident involved a minimal impact that was never even reported to police." On January 19, 2001, Sales filed a Complaint against Manning for damages. In a November 29, 2001 Trial Setting

Conference Order, the court1 scheduled (1) a four-day jury trial, with expert witnesses, for the week of June 24, 2002, and (2) a settlement conference on April 29, 2002. Rule 12 of the Rules of the Circuit Court of the State of Hawai#i (RCCH) states, in relevant part, as follows:
RULE 12. READY CIVIL CALENDAR (a) Preparation of Calendar by Clerk. At least once in each calendar month, the clerk shall prepare a list of all civil cases wherein a pretrial statement has been filed. Such list shall be known as the "Ready Calendar" and shall be available for public examination. (b) Pretrial Statement. No case shall be placed on the "Ready Calendar" unless a "Pretrial Statement" has been filed and served in accord with Rule 5 of the Hawai'i Rules of Civil Procedure. The pretrial statement shall be filed within 8 months after a complaint has been filed or within any further period of extension granted by the court. It shall contain the following information: (1) A statement of facts; (2) Admitted facts; (3) All claims for relief and all defenses advanced by the party submitting the pretrial statement and the type of evidence expected to be offered in support of each claim and defense; (4) The names, addresses, categories (i.e., lay, eye, investigative), and type (i.e., liability, damages) of all non-expert witnesses reasonably expected to be called by the party submitting the statement and a general statement concerning the nature of the testimony expected; (5) The name, address and field of expertise of each expert witness expected to testify and a general statement concerning the nature of the testimony expected;

1

The Honorable Sabrina S. McKenna presided in this case.

2

NOT FOR PUBLICATION
(6) A statement that each party, or the party's lead counsel, conferred in person with the opposing party, or with lead counsel for each opposing party, in a good faith effort to limit all disputed issues, including outstanding discovery, and considered the feasibility of settlement and alternative dispute resolution options. A face-to-face conference is required under these rules and shall not be satisfied by a telephone conference or written correspondence. The face-to-face conference shall take place in the judicial circuit where the action is pending unless otherwise agreed by counsel and/or the parties; and . . . . (c) Selection of Trial Date and Consideration of Alternative Dispute Resolution. (1) Except in cases which have been designated as complex litigation, within 60 days of the filing of the initial pretrial statement, the plaintiff in all cases filed in the First Circuit shall schedule a trial setting status conference that shall be attended by each party or each party's lead counsel and shall be conducted by the Civil Administrative Judge, or the Civil Administrative Judge's designee. The Civil Administrative Judge, or designee, shall: (A) Establish the trial date; and

(B) Discuss alternative dispute resolution options. The court may consider other matters which may be conducive to the just, efficient and economical determination of the case. (2) . . . . (d) Extension of Time to File Pretrial Statement. . . . (e) Designation and Order of Actions. . . . (f) Motion to Strike From Calendar. . . . (g) Restoration to Calendar. . . . (h) Responsive Pretrial Statement. Every defendant shall file a "Responsive Pretrial Statement", served as required by Rule 5 of the Hawai'i Rules of Civil Procedure, that sets forth the same kind of information required in the pretrial statement within 60 days of the filing of the first pretrial statement. (i) Extension of Time to File Responsive Pretrial Statement. Parties may stipulate once as a matter of course at any time before the responsive pretrial statement is due to extend the time in which to file the responsive pretrial statement. Parties shall not extend the time in which to file the responsive pretrial statement for more than 30 days. Otherwise, a motion seeking court approval to file a responsive pretrial statement more than 60 days after the filing of a pretrial statement shall be filed within 30 days of filing of a pretrial statement and shall specifically state why a responsive pretrial statement cannot be

3

NOT FOR PUBLICATION
timely filed. If incomplete discovery is the reason why a responsive pretrial statement cannot be submitted, the motion shall include a schedule for completing discovery and the date when the responsive pretrial statement shall be filed. (j) Amending Pretrial Statements. . . . (k) Designation as Complex Litigation. . . . (l) Final Naming of Witnesses. Sixty (60) days prior to the discovery cut off date plaintiff must name all theretofore unnamed witnesses. Thirty (30) days prior to the discovery cut off date defendant must name all theretofore unnamed witnesses. (m) Further Discovery. After the deadline for Final Naming of Witnesses, a Motion for Further Discovery can be filed upon a showing of good cause and substantial need. (n) Exclusion of Witnesses. Any party may move the court for an order excluding a witness named by an opposing party if said witness was or should have been known at an earlier date and allowing the witness to testify will cause substantial prejudice to the movant. The movant under this motion must make a statement concerning the prejudice that will be suffered should this new witness be allowed to testify, and why the opposing party either knew or should have known of the witness at an earlier date. The opposing attorney must submit an affidavit stating that the witness was not known at an earlier date, nor with due diligence should have been known. (o) Additional Witness. At any time after the time for Final Naming of Witnesses, upon a showing of good cause and substantial need a party may move for the addition of a witness. (p) Deviation in Time for Filing. . . . (q) Dismissal for Want of Prosecution. . . . (r) Discovery Cut Off. Discovery shall be cut off 60 days before the assigned trial date. (s) Additional Party Practice. . . . (t) Sanctions. Failure of a party or his attorney to comply with any section of this rule is deemed an undue interference with orderly procedures and unless good cause is shown, the court may, in its discretion, impose sanctions in accord with Rule 12.1(a)(6) of these rules.

As noted above, RCCH Rule 12(r) states, "Discovery shall be cut off 60 days before the assigned trial date." In

this case, the trial having been set for the week of June 24, 2002, the discovery cut off date was April 25, 2002. 4

NOT FOR PUBLICATION On January 23, 2002, counsel for Manning deposed Dr. Jon F. Graham. On February 25, 2002, counsel for Sales filed a "Final Naming of Witnesses" as required by RCCH Rule 12(l) and therein stated, in relevant part, as follows:
II. Expert Medical Witnesses

The following physicians and/or physical therapists are expected to testify regarding their care and treatment of [Sales], the nature of the injuries sustained by [Sales] and her prognosis and causation, related matters including causation, the value of their medical services and medical bills: 1. John Sandor, M.D. Mary T. Greulick, M.D. Jon Graham, M.D. Physical Therapy Department Kaiser Permanente . . . . Ruby De Alday, M.D. . . . .

2.

III.

Other Expert Witnesses 1. Thomas Sakoda, M.D. . . . .

Physician is expected to testify regarding his medical examination of [Sales], prognosis and related matters, causation and medical bills.

The Court Annexed Arbitration Program hearing occurred on March 6, 2002. On March 13, 2002, the arbitrator valued

special damages at $21,866.10 and general damages at $210,000 and apportioned them 50% to pre-existing conditions and 50% to the motor vehicle collision. On March 19, 2002, Manning (1) appealed

the arbitration award and requested a trial de novo and (2) filed and served by mail a Hawai#i Rules of Civil Procedure Rule 68 Offer of Judgment of $50,000 inclusive of fees and costs. 5

NOT FOR PUBLICATION On March 27, 2002, Manning filed her "Final Naming of Witnesses." One of the expert witnesses she named was "Calvin C.

M. Kam, M.D." to "testify as to damages, including his review of [Sales'] medical records and/or his independent medical examination of [Sales]." In a memorandum accompanying a motion filed on March 28, 2002, counsel for Manning stated, in relevant part, as follows:
[Sales'] pre-accident medical history is significant and warrants an apportionment in this case. [Sales'] history of neck and back complaints dates back more than seven years before the subject accident. Indeed, these symptoms were so bad that in September 1991 Raymond Taniguchi, M.D. performed a C5-6 diskectomy and fusion. . . . . Initially, [Sales] did well after surgery, but she then began to experience a recurrence of symptoms, dating to October 1994. A cervical MRI scan was taken on October 6, 1995 to evaluate [Sales'] ongoing complaints. This scan revealed multiple degenerative changes throughout the spine. Significantly, disc bulges were noted at C4-5 and C6-7. Bilateral stenosis was also noted at C6-7. When symptoms persisted, [Sales] was by [sic] John Graham, M.D., a neurosurgeon, for a consultation on November 28, 1995. Dr. Graham diagnosed residual cervical disc disease with increasing right upper extremity radiculopathy. Dr. Graham discussed the option of surgery, with the C5-6 and C6-7 levels being the most likely candidates for intervention. Ultimately, [Sales] did not proceed with surgery. [Sales'] medical records do reveal, however, that she continued to complain of neck and/or back pain to other Kaiser doctors on multiple occasions after the November 1995 visit with Dr. Graham. Moreover, [Sales] acknowledged during her oral deposition that she was symptomatic for these pre-existing conditions during the one-year before the subject accident. Accordingly, [Sales'] damages from the subject accident must be apportioned. [Manning] conducted the oral deposition of Dr. Graham in order to determine his opinion regarding apportionment. Dr. Graham, however, refused to provide such medical testimony.

6

NOT FOR PUBLICATION (Emphasis in original.) On April 16, 2002, at the request of Manning, Dr. Calvin Kam (Dr. Kam) made an Independent Medical Evaluation (IME) report on Sales. A copy of Dr. Kam's IME was received by counsel

for Sales on or about April 22, 2002, three days before the April 25, 2002 discovery cutoff date. On April 29, 2002, Judge McKenna presided over a settlement conference. On May 8, 2002, Judge McKenna held a pretrial conference and then filed Pretrial Order No. 1 which stated that jury selection would begin on June 25, 2002, motions in limine were due by June 10, 2002, exhibit lists were due on June 14, 2002, and deposition designations with complete transcripts were due on June 17, 2002. This Pretrial Order No. 1 does not mention

any problems created by Manning's nonreceipt of an IME from Dr. Thomas H. Sakoda, the expert hired by Sales. The nonreceipt of an IME from Dr. Sakoda is discussed for the first time in the record on June 3, 2002, when counsel for Manning filed "Defendant Tokuhisa Manning's Motion in Limine to Exclude Any and All Testimony by Thomas H. Sakoda, M.D." an accompanying declaration, the attorney for Manning stated, in relevant part, as follows:
2. [Sales] identified [Dr. Sakoda] as an expert witness on February 25, 2002. As of the date of that identification, Dr. Sakoda had never treated the patient.

In

7

NOT FOR PUBLICATION
3. After the appeal from the CAAP arbitration on March 19, 2002, [the attorney for Manning] attempted to conduct the oral deposition of Dr. Sakoda. 4. [The attorney for Manning] was advised, however, by counsel for [Sales] that Dr. Sakoda had not yet seen the patient and therefore was not ready to be deposed. [Sales'] counsel did not intend to schedule an appointment with Dr. Sakoda until after the settlement conference on April 29, 2002. 5. After the settlement conference [counsel for Manning] again tried to conduct Dr. Sakoda's oral deposition, but was advised that [Sales] had still not been evaluated by Dr. Sakoda and Dr. Sakoda had no opinions. Opposing counsel promised that the appointment would be scheduled "soon." 6. On May 29, 2002 [counsel for Manning] again asked [counsel for Sales] if Dr. Sakoda had seen [Sales]. [Counsel for Sales] said that Dr. Sakoda had still not seen [Sales], but that an appointment was scheduled "in a few days." [Counsel for Sales] promised to provide Dr. Sakoda's report. 7. As of the date of this declaration, [counsel for Manning] . . . still has not been provided with Dr. Sakoda's report and has effectively been precluded from discovering Dr. Sakoda's trial opinions. . . . 8. Based on the foregoing, [counsel for Manning] requests that any and all testimony by Dr. Sakoda be excluded from trial.

(Emphasis in original.) On June 3, 2002, Manning filed "Defendant Tokuhisa Manning's Motion in Limine to Limit the Trial Testimony of Jon F. Graham, M.D. to the Opinions Disclosed During Oral Deposition." On June 3, 2002, Sales filed a "Motion in Limine to Exclude Some Potential Evidence of Defendant." In an

accompanying memorandum, counsel for Sales stated, in relevant part, as follows:
This is [a] personal injury case arising from a traffic accident where [Manning's] vehicle struck the rear of the vehicle of [Sales]. Subsequent to the accident, [Sales] had surgery done to the C4-5 and C6-7 levels of her cervical spine by Dr. Graham, a neuro-surgeon. [Sales] claims said injuries to be caused by the subject accident. The damage to [Sales] vehicle was "nominal" at best and was

8

NOT FOR PUBLICATION
not repaired; and [Manning] testified in her deposition that she had no damages to her car. During discovery, [Manning] subpoenaed [Sales'] current and previous medical records. [Manning] discovered that [Sales] had "pre-existing" medical condition, particularly a fusion to the level of C5-6 , done on September 25, 1991, seven years before the subject accident. The Kaiser Medical Records show that after said fusion, [Sales] was seen on occasions by the Kaiser medical personnel particularly for problems of her diabetis [sic], sometimes cough or colds, and sometimes shoulder pains or numbness. In a vague and isolated note or scribble dated December 2, 1997, presumably by the Kaiser therapist, [Sales] allegedly remarked or implied that she wanted to go through surgery again. See Exhibit "1" for accuracy of words allegedly said by [Sales], wherein she allegedly stated, as follows: "pt is thinking about having surgery again."

(Emphases in original.) On Monday, June 10, 2002, counsel for Sales filed "Plaintiff Dardanela Sales' Memorandum in Opposition to Defendant Tokuhisa Manning's Motion in Limine (to Exclude All of Dr. Sakoda's Testimony, Some of Dr. Graham's Testimony and References to Liability Insurance)." In this memorandum, counsel for Sales

stated, in relevant part, as follows:
I. BACKGROUND: . . . . In view of the severity of injuries and the rather simultaneous arbitration proceedings and the critical short weeks prior to the scheduled trial, [Sales] and [Manning], through their counsel, agreed although there was no written stipulation filed, that the [discovery] will continue virtually up to and including the "eve" of trial. This has all along been known to [Manning]. The parties have also exerted great efforts to have Dr. Gruellick and Dr. [D]e Alday, treating doctors, to be deposed orally notwithstanding that the period of discovery has lapsed except for the mutual agreement of the parties to extend. . . . II. ARGUMENTS: (a) Dr. Graham's testimony: Foremost, it must be emphasized here that Dr. Graham is not

9

NOT FOR PUBLICATION
an independent medical expert hired and retained by [Sales]. He is the surgeon who did surgery to the cervical disks after the motor vehicle accident complained of. . . . . . . [Sales] never stopped [Manning] from requiring [Dr. Graham's] oral deposition to occur. And when it did happen, it was not the idea of [Sales] that Dr. Graham had an attorney representing him. Atty. Playdon, during the oral deposition. If [Manning's] counsel really feels aggrieved for what he thinks is an "incomplete" deposition, said counsel could have asked the intercession of the Court, perhaps, by a Motion to Compel, or any other proper motion, but [Manning] failed to do so and now shifts the responsibility to [Sales]. There is nothing to stop [Manning's] counsel from cross-examining Dr. Graham and [Sales] does not agree that anything that this doctor would say comes as a "prejudicial surprise" to [Manning]. . . . . (b) The testimony of Dr. Sakoda: . . . . In good faith, [Sales] retained the services of Dr. Sakoda as soon as trial was imminent. In good faith, [Sales'] attorneys have periodically advised [Manning's] counsel of the scheduling attempts with Dr. Sakoda. There are volumes of records that Dr. Sakoda had to read. His report alone consists of 54 pages, a full set was delivered to [Manning's] counsel today. The report was only available this past week-end. It is not true and [Sales] and her attorneys deny that there was no intent to schedule an appointment with Dr. Sakoda till [sic] after the settlement conference with the Court. . . . There is no justifiable reason than [sic] Dr. Sakoda and/or Dr. Graham would be excluded. To do so is to deprive [Sales] of her case and her Day in Court. Exclusion is not the proper remedy and should be denied.

(Emphases in original.) Dr. Sakoda's IME states, in relevant part, as follows:
[A]n [IME] . . . was performed on two separate dates. The initial evaluation was performed on 17 May 2002 as scheduled. However, it was apparent that the medical records that were provided for review were not complete, and [Sales] was not able to provide the information necessary to complete the history of the events and treatment. Therefore, the missing medical records were requested and the evaluation was continued after the records were received and reviewed. After reviewing all of the records, [Sales] was examined on 29 May 2002. . . . . PRIOR OPERATIONS:

10

NOT FOR PUBLICATION
September 1991: Anterior Cervical Fusion of C5-7 performed at Queen's Medical Center by Dr. Raymond Taniguchi for neck and right upper extremity pain 1992: Total Abdominal Hysterectomy and Bilateral Salpingooophorectomy 1999: Anterior Cervical Fusion of C4-5 & C6-7 15 May 2002: Laparoscopic Cholecystectomy . . . . [Sales] is the owner of Hair Concept Inc., a beauty salon. She also works there as a Hair Stylist and Cosmetologist. She colors, cuts, trims, and styles hair. She works 5-6 days a week and works 6-8 hours a day. She used to perform manicures and pedicures before the motor vehicle accident. However, at the present time, she is unable to do the manicures and pedicures because of the limitation of her neck and the pain associated with prolonged flexion of her neck. She also has difficulty washing her client's hair for the same reason. She has to flex her neck to wash their hair. She now has one of her employees take over and do the hair washing for her clients. She used to work 12 hour days but no longer can she work for such a length of time because of the problems with neck pain. She, however, is working and working full time. Since she is the owner of her beauty salon, she can make the adjustments to her work schedule. . . . . CERVICAL DISK SYNDROME [Sales] has an injury to the Cervical Spine and the Cervical Disk Complex. Although the major complaint is the stiffness and rigidity of the neck, the major problem appears to be the pain that results from prolonged flexion, extension, and rotation of the neck. Although she has a fusion of the C4, C5, C6, and C7 vertebral bodies, if there was not pain, these individuals often have normal or near normal movement. At least, they are functional. The presence of pain indicates that there may be pain originating from other disk complexes. Since the disks have been excised and the vertebral bodies fused from C4 to C7, it is hard to believe that the present pain and difficulty with movement is related to the C4-5, C5-6, and C6-7 disk complexes. She no longer has disks at these levels and there is no movement to elicit pain from the ligaments and facet joints. Therefore, the only conclusion is that the pain is from another site or sites. PROGNOSIS The PROGNOSIS would be FAIR. There is no indication that the condition will improve with the passage of time. It has not been established where the present pain originates and what is the exact injury that causes the pain. It is for these reasons that the prognosis is only fair. . . .

11

NOT FOR PUBLICATION
RECOMMENDATIONS I have no special recommendations for [Sales]. She does see her doctor routinely for her medical illnesses, and if there is any problem with her neck, she can have the problem evaluated. Thus, it appears that there is not much more that she needs to do. She is exercising and is doing her work. I see no real need to do anything different at this time. If there is a need to know what is the diagnosis and what is the cause of her pains, further evaluation is definitely needed. The question of what to do under these circumstances can be addressed at that time. ANSWERS TO QUESTIONS [We] are asking you to address specifically the following issues:

1.

CAUSATION: WHAT IS THE SIGNIFICANCE OR RELATION OF THE SUBJECT MOTOR VEHICLE ACCIDENT TO THE SYMPTOMS AND INJURIES CLAIMED BY MRS. SALES?

After reviewing the medical records provided and after interviewing [Sales], it is my opinion that the diagnosis of what was the injury causing the disabling pains was made only to the degree of "reasonable medical probability " and not to the degree of "reasonable medical certainty" . Although the Neurological Surgeon, Dr. Jon Graham, performed disectomies and fusions of C4-5 and C6-7 disks, it was never established to the degree of reasonable medical certainty what was the condition causing the disabling pains before or after the operation. The clinical picture based on the history of the injury, the general clinical course, the findings at the time of examination, and the diagnostic tests performed do not tell what is the injury to the degree of reasonable medical certainty other than the injury is to the Cervical Spine and, most likely, to the Cervical Disk complex. In addition, at the time of operation, it appears that no attempt was made or it was not possible to identify the presence or absence of a disk protrusion which could be causing the pain. However, [Sales] indicates that the severely disabling pains were alleviated by the operation. Therefore, removing the disks at C45 and C6-7 and the fusion of the spine from C4 to C7 contributed to the alleviation of the disabling symptoms, i.e. the severe headaches and the severe upper extremity pains. The conclusion that can be reached is that the pain may have been of discogenic origin since removing the discs alleviated the pain. It also can be stated that stabilizing the spine from C4 to C7 also may have contributed to the alleviation of the pain which indicates that the pain may also have been related to the ligaments and articulating joints of the disk complexes that were fused. . . . . In summary, although the rear impact to [Sales'] car was not severe enough to warrant calling the police to file a report, there were conditions that led to an injury to [Sales'] cervical disk complex. The Cervical Spine was turned or rotated to the

12

NOT FOR PUBLICATION
left as she looked at the on coming [sic] traffic while planning to make a right turn onto Salt Lake Boulevard. The rotated spine was then subjected to sudden extension and flexion. The spine was further vulnerable to injury because of the degenerative changes that had occurred from wear and tear of daily living. There was absent a head rest on the seat which may have resulted in more hyper extension of the neck than if the head rest had been present. The doctors that all examined [Sales] agreed that there was an injury to the neck and Cervical Spine. The clinical course was consistent with such an injury. After the operation was performed, she was much improved with the severely disabling pains being alleviated. Therefore, the only conclusion which can be reached is that the motor vehicle accident resulted in the injuries to the Cervical Spine of [Sales]. 2. PRE-EXISTING: IF YOU FIND THAT [SALES] WAS "SYMPTOMATIC" BEFORE THE ACCIDENT AND TOWARDS THE TIME OF THE ACCIDENT ON THE RELEVANT PORTIONS OF HER BODY AFFECTED BY THE ACCIDENT, HOW MUCH PERCENTAGE WOULD YOU ATTRIBUTE TO THE PRE-EXISTING CONDITION?

. . . The diagnoses given by the doctors who treated her all indicated that the pains were consistent with a neck or Cervical Strain. Therefore, there was a pre-existing condition involving the Cervical Spine that caused pain. An apportionment of [Sales'] present condition is therefore indicated. . . . Her condition is much more severe than the condition in which she found herself prior to the motor vehicle accident of 06 May 1998. Therefore, it is my opinion that an apportionment of her prior condition is indicated. Based on an evaluation of [Sales'] present condition as compared to what it was prior to the motor vehicle accident, I have arrived at an apportionment of her condition of the Cervical Spine. APPORTIONMENT OF THE PRESENT CONDITION OF THE CERVICAL SPINE: Prior to 06 May 1998 Motor Vehicle Accident: . . . . . .4.6% Present Condition related to Motor Vehicle Accident . .95.4%

At a hearing on Wednesday, June 12, 2002, the following was stated, in relevant part:
THE COURT: . . . .

Motion number 2 is [Manning's] motion to exclude any and all testimony by Thomas Sakoda. . . . [W]as the report ever provided? [COUNSEL FOR MANNING]: Yes, Your Honor. on Monday. This past Monday [June 10, 2002]. THE COURT: This past Monday? It was delivered

13

NOT FOR PUBLICATION
. . . . THE COURT: Isn't it a little late to be providing expert opinions at this point? This is a retained expert? . . . . THE COURT: retained expert? Two weeks before trial you provide a report of a

[COUNSEL FOR SALES]: . . . [W]e have mentioned him already in our pretrial statements. And [counsel for Manning] was knowledgeable of that. He knew that all along. Even during our settlement conferences, Your Honor, he was already known. It was just that we have difficulty having him examine our client. And also, there was a lot of records that he had to review. And the report itself is I think over 50 pages, 54 pages. So there is really no surprise, no prejudice for [counsel for Manning]. . . . THE COURT: . . . [I]n the Court's view, the fact that the report itself is 54 pages creates prejudice in and of itself. I don't think that two weeks before a jury trial that's been pending for

Download Sales v. Manning.pdf

Hawaii Law