Kauhako v. State of Hawaii Board of Education Department Of Education et al
ORDER DENYING DEFENDANT STATE OF HAWAII BOARD OF EDUCATION DEPARTMENT OF EDUCATION'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, FOR A NEW TRIAL re 216 Motion for Judgment as a Matter of Law. Signed by JUDGE DERRICK K. WATSON on 08/24/2016. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
ANGELICA J. KAUHAKO,
individually and as parent and next
friend of her minor child, MARIANA
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION, et al.,
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION, et al.,
CIVIL NO. 13-00567 DKW-KJM
ORDER DENYING DEFENDANT
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
MOTION FOR JUDGMENT AS A
MATTER OF LAW OR, IN THE
ALTERNATIVE, FOR A NEW
ORDER DENYING DEFENDANT STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF EDUCATION’S
RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
OR, IN THE ALTERNATIVE, FOR A NEW TRIAL
Following a nine-day trial, the jury returned a verdict against the State of
Hawaii Board of Education Department of Education (“State”) and Kristin
Lindquist on Angelica Kauhako and her daughter Mariana’s negligence-based
claims arising out a sexual assault against Mariana by another student at Waianae
High School. However, as a result of the jury’s determination that Lindquist did
not act with malice, the Court found that Lindquist was entitled to a qualified
privilege recognized by Hawaii law and ordered the claims against her dismissed.
The State now seeks judgment as a matter of law on the grounds that (1) it is immune
from liability because Lindquist is immune from liability and (2) no reasonable juror
could have concluded that the State was negligent based on the evidence in the
record. Alternatively, the State seeks a new trial. Because evidence of negligence
attributable to the State—independent of Lindquist’s individual conduct—was more
than sufficient to support the jury’s verdict and was not contrary to the clear weight
of the evidence, and because none of the alleged evidentiary errors warrant a new
trial, the State’s motion is DENIED.
Trial commenced on April 18, 2016 on a claim against the State under Title
IX (Count I) and on the following claims against both the State and Lindquist:
negligent supervision of students (Count V), negligence (Count VII), gross
negligence (Count VIII), intentional infliction of emotional distress (“IIED”) (Count
X), and negligent infliction of emotional distress (“NIED”) (Count XI). Following
Plaintiffs’ case-in-chief, the Court denied Defendants’ oral motions for judgment as
a matter of law pursuant to Federal Rule of Civil Procedure 50(a) on Title IX, gross
negligence, IIED, and NIED. See Dkt. Nos. 172 and 182. After Defendants rested
on April 28, 2016, they orally moved for judgment as a matter of law on Plaintiffs’
Title IX and negligence-based claims. That motion was also denied. See Dkt. No.
The jury returned its verdict on May 2, 2016, finding the State and Lindquist
liable for negligence, negligent supervision, and NIED. The jury awarded Kauhako
general damages in the amount of $157,500, and awarded Mariana $630,000 in
general damages, $2,825 for past medical expenses and $20,000 for future medical
expenses. The jury also apportioned fault between the Defendants, finding the
State 95 percent and Lindquist 5 percent liable, respectively. See Dkt. No. 204
The jury’s verdict included a determination that Plaintiffs failed to prove by
clear and convincing evidence that Lindquist was motivated by malice. See Dkt.
No. 204 (Verdict Form). As a result, post-trial, the Court ruled as a matter of law
that Lindquist was entitled to a state law qualified privilege, and, without objection,
dismissed the three negligence-based claims against her with prejudice. See Dkt.
No. 207 (5/9/16 Order Dismissing Claims).
The State filed the instant motion on July 1, 2016, seeking judgment as a
matter of law on all claims against it pursuant to Rule 50(b) and, alternatively,
asking for a new trial pursuant to Rule 59.
The State argues that it is entitled to judgment as a matter of law because (1) it
is immune from liability on a respondeat superior basis and (2) the jury’s findings of
negligence are against the weight of the evidence. Alternatively, the State seeks a
new trial on the grounds that (1) the jury’s verdict was not consistent with nor
supported by the evidence and (2) it was error to allow Rachel Lynch, Ph.D. to
testify as an expert witness and to award future medical expenses based on her
testimony. Because each of the State’s arguments is without merit, the motion is
The Renewed Rule 50 Motion
Standard Of Review
The State once again seeks judgment as a matter of law on Plaintiffs’ three
negligence-based claims. The Court previously denied Defendants’ Rule 50
motion on these same claims during trial on April 28, 2016. See Dkt. No. 191.
Rule 50(b) provides:
If the court does not grant a motion for judgment as a matter of
law made under Rule 50(a), the court is considered to have
submitted the action to the jury subject to the court’s later
deciding the legal questions raised by the motion. No later than
28 days after the entry of judgment--or if the motion addresses a
jury issue not decided by a verdict, no later than 28 days after the
jury was discharged--the movant may file a renewed motion for
judgment as a matter of law and may include an alternative or
joint request for a new trial under Rule 59. In ruling on the
renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b).
To file a renewed motion under Rule 50(b), a party must first file
a motion for judgment as a matter of law under Rule 50(a) before
the case is submitted to the jury. E.E.O.C. v. Go Daddy
Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009). If the court
denies or defers ruling on the Rule 50(a) motion and the jury
returns a verdict against the moving party, the party may then
renew the motion under Rule 50(b). Id. Because it is a
“renewed” motion, a party cannot “raise arguments in its
post-trial motion for judgment as a matter of law under Rule
50(b) that it did not raise in its preverdict Rule 50(a) motion.”
Id. (quoting Freund v. Nycomed Amersham, 347 F.3d 752, 761
(9th Cir. 2003)).
Munguia v. Grelyn of Maui, LLC, 2011 WL 1364026, at *4-5 (D. Haw. Apr. 8,
2011), aff’d, 473 F. App’x 643 (9th Cir. 2012)1; see also Experience Hendrix LLC v.
Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir. 2014) (“In considering a
Rule 50(b)(3) motion for judgment as a matter of law, the district court must uphold
the jury’s award if there was any ‘legally sufficient basis’ to support it.”) (citation
The State Is Not Entitled To Judgment As A Matter Of Law
On Plaintiffs’ Negligence-Based Claims
The State argues that it cannot be liable to Plaintiffs for negligence, negligent
supervision, or NIED because those claims were dismissed against Lindquist on
immunity grounds, and Lindquist’s immunity must render the State likewise
immune under a respondeat superior theory. The parties do not dispute that the
To the extent the State did not seek judgment as a matter of law pre-verdict based on the
application of Lindquist’s conditional privilege to the State on a respondeat superior theory, the
Court notes that no such argument was then available. The claims against Lindquist had not been
dismissed prior to verdict. See Go Med. Indus. Pty, Ltd. v. Inmed Corp., 471 F.3d 1264, 1272
(Fed. Cir. 2006) (“It would have been impossible, however, for MMG and Rusch to challenge the
jury’s award of damages as excessive in a Rule 50(a) motion.”). Accordingly, the State’s
post-verdict argument has not been waived for Rule 50(b) purposes.
State is not liable for Lindquist’s conduct based upon the dismissal of the claims
against her individually. The parties agree that while an employer is generally
liable for the negligent acts of an employee that occur within the scope of
employment, the employee’s immunity from suit inures to the benefit of the
employer as well. See Nakagawa v. Cnty. of Maui, 2014 WL 1213558, at *14 (D.
Haw. March 21, 2014); Freeland v. Cnty. of Maui, 2013 WL 6528831, at *24 (D.
Haw. Dec 11, 2013); Reed v. City & Cnty. of Honolulu, 76 Haw. 219, 227, 873 P.2d
98, 106 (1994). The parties dispute whether Plaintiffs sufficiently alleged and
proved independent acts of negligence attributable to the State – that is, acts or
omissions by State employees other than Lindquist.
Insofar as the State contends that there is no basis to attribute to it the conduct
of actors other than Lindquist, the argument cannot withstand scrutiny. The jury
was instructed that the State is responsible for the conduct of its employees as
A governmental entity may act only through natural persons—its
agents or employees. In general, any agent or employee of a
governmental entity may bind the governmental entity by acts
and declarations made while acting within the scope of the
authority delegated to him or her by the governmental entity, or
within the scope of the agent’s or employee’s duties to the
Dkt. No. 189 (Final Jury Instructions – Instruction No. 11). In other words, the
propriety of the State’s conduct was not measured by the actions and omissions of
Lindquist alone, but by the conduct of each of the State’s employees.
Viewing the facts in the light most favorable to Plaintiffs, the Court concludes
that a reasonable jury could have found the State responsible for the negligent
conduct of persons others than Lindquist for purposes of Count V (negligent
supervision), Count VII (negligence), and Count XI (NIED). The jury was
presented with evidence that Kauhako raised the issue of prior assaults against
Mariana with members of Mariana’s IEP team as early as November 2012, putting
the State on notice of a reasonably foreseeable risk of a specific harm to Mariana.
While Lindquist was a member of that team, she was not the sole State member.
Further, the evidence showed that Mariana’s IEP team members, and the State
generally, did virtually nothing at that time to separate, additionally supervise, or
otherwise protect Mariana from her student perpetrator akin to the protective
measures that the State adopted much later, post-April 2013 after the assaults
alleged by Mariana had already occurred. The Court acknowledges that Plaintiffs’
evidence was contradicted by IEP team members who attended the November
meeting with Kauhako, but the Court’s function when considering a Rule 50(b)
motion is to determine sufficiency, not to conduct what would amount to a de novo
review. See Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227
(9th Cir. 2001) (The Court “may not substitute its view of the evidence for that of the
jury.”); see also Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 707 (7th Cir.
2004) (“Our job at this stage is not to determine whether the jury believed the right
people, but only to assure that it was presented with a legally sufficient basis to
support the verdict.”).
Moreover, there was direct testimony from Plaintiffs and State employees –
including Dean Shimada, Jeri Martin, and Joanne DeCambra – regarding their
interactions during the relevant time periods in November and December 2012 and
April 2013, with respect to the events that formed the basis of Plaintiffs’ negligence
claims. A reasonable jury could have concluded based on that testimony that
DeCambra and Patricia Sofa negligently supervised and monitored both Mariana
and Third-Party Defendant Ruston Tom on April 18, 2013, which allowed the two
special education students to leave their classroom without any adult oversight,
leading to the restroom incident in question.
To be clear, whether or not Lindquist is individually immune from liability,
sufficient evidence of conduct by other employees attributable to the State was
adduced at trial to support the jury’s verdict on Plaintiffs’ negligence-based claims.
Consequently, the renewed motion is denied on this issue.
The Jury Verdict Is Supported By Substantial Evidence
The State next argues that the jury’s findings of negligence are against the
weight of the evidence and must be vacated. Specifically, the State contends that
the findings that it breached its (1) duty to protect Mariana from reasonably
foreseeable harm and (2) duty of supervision are against the weight of the evidence.
The State maintains that the evidence at trial was “clear that Ruston and Mariana
were not in the bathroom at the same time on April 18, 2013, as was shown by the
recording of the surveillance tape.” Mem. in Supp. at 9.
In assessing arguments regarding the sufficiency of the evidence, the
movant’s burden is substantial:
The court will direct judgment as a matter of law if “the evidence
permits only one reasonable conclusion, and that conclusion is
contrary to the jury’s verdict.” Go Daddy Software, Inc., 581
F.3d at 961 (quoting Josephs v. Pac. Bell, 443 F.3d 1050, 1062
(9th Cir. 2006)). When considering the motion, the court “may
not make credibility determinations or weigh the evidence.” Id.
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000)). Instead, the court reviews the evidence “in
the light most favorable to the nonmoving party” and draws “all
reasonable inferences in that party’s favor.” Id. (quoting
Josephs, 443 F.3d at 1062)). “While the district court may not
resolve conflicts in the testimony or weigh the evidence, it may
evaluate evidence at least to the extent of determining whether
there is substantial evidence to support the verdict. ‘[A] mere
scintilla of evidence will not suffice.’” Von Zuckerstein v.
Argonne Nat’l Laboratory, 984 F.2d 1467, 1471 (7th Cir. 1993)
(citing La Montagne v. American Convenience Products, Inc.,
750 F.2d 1405, 1410 (7th Cir. 1984)).
Munguia, 2011 WL 1364026, at *4-5; see also Reeves, 530 U.S. at 149 (“Under
Rule 50, a court should render judgment as a matter of law when a party has been
fully heard on an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue.”) (internal quotation marks
Viewing the evidence in the light most favorable to Plaintiffs, the State’s
various arguments regarding the lack of notice of prior assaults, evidence of Tom’s
good character and behavior, and what the security video of the bathroom on April
18, 2013 does or does not show, fall far short of persuading the Court that “the
evidence permits only one reasonable conclusion, and that conclusion is contrary to
the jury’s verdict.” See Go Daddy Software, Inc., 581 F.3d at 961.
The State argues that it “could not have reasonably foreseen any harm to
Mariana,” based on what appears to be a selectively constructed timeline of events.
Mem. in Supp. at 9-10. The State’s conclusion is belied by several factors. First,
the jury’s finding that the State did not have actual knowledge of sexual harassment
for purposes of Title IX liability is not determinative of what was “reasonably
foreseeable” for purposes of evaluating a breach of duty under state negligence law.
Second, as noted previously, Plaintiffs presented evidence that Kauhako reported a
pre-April 2013 incident of harassment to Lindquist and the IEP team in November
2012 and requested a one-to-one aide at that time for Mariana because of safety
concerns. Plaintiffs also presented evidence of a police report in which Lindquist is
described as being aware of Mariana being inappropriately touched during an
off-campus episode in the same November 2012 timeframe. This evidence was
apparently credited by the jury and formed a more than sufficient basis for it to
conclude that the State should have reasonably foreseen what was to come in April
2013. Third, the State places far too much reliance on its security video. Having
seen the very same video footage as did the jury, it is far from “clear” that the
footage definitively shows “Ruston and Mariana were not in the bathroom at the
same time.” Some of the video is grainy, much of it distant, and all of it far more
unclear than clear. There are also times when the two depicted and unsupervised
individuals are outside of the stationary camera’s view, albeit not in the restroom,
when anything, including the alleged assault, could have occurred. The video is
simply not the “smoking gun” that the State advertised it to be in opening statements
and during its case-in-chief, and the jury easily could have reached the same
conclusion.2 Viewing the evidence in the light most favorable to Plaintiffs for
purposes of the renewed Rule 50 motion, the State certainly had notice of a prior
off-campus episode between Mariana and Ruston, and a jury finding regarding
whether the April 18, 2013 assault both occurred and was reasonably foreseeable is
supported by substantial evidence.
Motion for a New Trial
Standard of Review
A motion for a new trial is governed by Federal Rule of Civil Procedure 59,
which provides that after a jury trial, “[t]he court may, on motion, grant a new trial
on all or some of the issues—and to any party . . . for any reason for which a new
trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P.
59(a). “Rule 59 does not specify the grounds on which a motion for a new trial may
be granted.” Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir.
2003). While a trial court must generally respect a jury’s findings, if a trial court is
Serious questions were also raised during trial about the manner in which the video was created
and retained by school authorities. For instance, the school deleted the original videos
downloaded from its security cameras from the day in question, even though the school was aware
of the import of the video at the time of its deletion. Instead, the State preserved and produced to
Plaintiffs only a small segment of the video from that day that in the State’s judgment was relevant.
That self-selected segment was what was played for the jury. Accordingly, the jury could have
reasonably discounted the value of the videotapes for this additional reason.
left with the definite and firm conviction that a mistake has been committed, it may
grant a new trial:
On the one hand, the trial judge does not sit to approve
miscarriages of justice. His power to set aside the verdict is
supported by clear precedent at common law and, far from being
a denigration or a usurpation of jury trial, has long been regarded
as an integral part of trial by jury as we know it. On the other
hand, a decent respect for the collective wisdom of the jury, and
for the function entrusted to it in our system, certainly suggests
that in most cases the judge should accept the findings of the
jury, regardless of his own doubts in the matter.... If, having
given full respect to the jury’s findings, the judge on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed, it is to be expected that he will
grant a new trial.
Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir.
1987) (internal quotation and citations omitted). “The judge can weigh evidence
and assess the credibility of witnesses, and need not view the evidence from the
perspective most favorable to the prevailing party.” Id. at 1371. Nevertheless,
“the court is not justified in granting a new trial ‘merely because it might have come
to a different result from that reached by the jury.’” Roy v. Volkswagen of America,
Inc., 896 F.2d 1174, 1176 (9th Cir. 1990) (citation omitted).
The Verdict Is Consistent With And Supported By The Clear
Weight Of The Evidence
The State argues that the verdict is inconsistent and not supported by the
evidence insofar as the jury found that the State did not have actual knowledge of the
alleged sexual harassment under Title IX, but also found that the State and Lindquist
breached their duty to protect Mariana from reasonably foreseeable harm. The
Court is unpersuaded.
The State bears a high burden to establish an irreconcilable inconsistency.
The Seventh Amendment to the Constitution guarantees that “no fact tried by a jury
shall be otherwise re-examined in any Court of the United States” except “according
to the rules of the common law.” The Court must accept any reasonable
interpretation of the jury’s actions, reconciling the jury’s findings “by exegesis if
necessary,” Gallick v. Baltimore & O. R.R. Co., 372 U.S. 108, 119 (1963); “a search
for one possible view of the case which will make the jury’s finding inconsistent
results in a collision with the Seventh Amendment.” Atl. & Gulf Stevedores, Inc. v.
Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962). Further, the Court reviews the
consistency of the jury’s verdict “in light of the instructions given.” Grosvenor
Properties, Ltd. v. Southmark Corp., 896 F.2d 1149, 1151 (9th Cir. 1990).
The jury did not render a verdict with irreconcilable inconsistencies. The
factual findings identified by the State – relating to the statutory Title IX claim on
the one hand, and the state-law torts of negligence and negligent supervision on the
other – are not incompatible. The jury answered Question Number 2 relating to
Title IX in the negative: “Have Plaintiffs proved that Defendant State of Hawaii 
had actual knowledge of the sexual harassment?” The jury then answered “Yes” to
Question Number 4 regarding negligence: “Have Plaintiffs proved that Defendants
State of Hawaii  and Kristin Lindquist breached their duty to protect Mariana from
reasonably foreseeable harm?” They also answered “Yes” to Question Number 6
regarding negligent supervision: “Have Plaintiffs proved that Defendants State of
Hawaii  and Kristin Lindquist breached their duty of supervision?” The negative
answer to Question Number 2 and the affirmative responses to Question Numbers 4
and 6 are not legally inconsistent and do not require a new trial.3 The State,
essentially, is comparing incomparable questions.
Although it asserts that the “jury’s finding on question number 1 of the verdict form . . . is also
inconsistent and not supported by the evidence,” the State itself acknowledges that “it is not
necessary to reach this issue.” The Court agrees and accordingly does not reach the issue. The
jury did not find the State liable under Title IX (Count I). The verdict form’s Question Number 1,
asking whether the sexual harassment at issue was so severe, pervasive, and objectively offensive
that it deprived Mariana of access to educational opportunities or benefits, as those terms are
defined under the federal statute, is not dispositive of whether the State breached its common law
duties to Plaintiffs.
There is no problem of legal irreconcilability because the jury did not return
answers that plainly violated the Court’s instructions,4 and the findings of fact are
With respect to Title IX’s “actual knowledge” requirement, corresponding to the verdict form’s
Question Number 2, the jury was instructed as follows:
The actual knowledge requirement is satisfied where an appropriate official
possessed enough knowledge of the harassment that it reasonably could
have responded with remedial measures to address the kind of harassment
upon which Plaintiffs’ legal claim is based.
Dkt. No. 189 (Jury Instruction No. 17). The jury was instructed as follows with respect to duty,
negligence and foreseeability, which correspond to Questions Number 2 and Number 6:
Defendants State of Hawaii Board of Education Department of Education
and Kristin Lindquist have a duty to take reasonable steps to prevent
reasonably foreseeable harm to their students.
Plaintiffs have alleged that Defendants State of Hawaii Board of Education
Department of Education and Kristin Lindquist were negligent. To prevail
on this claim, Plaintiffs must prove that Defendants, standing in loco
parentis, failed to take reasonable steps to prevent reasonably foreseeable
harms to Plaintiff Mariana.
NEGLIGENCE -- FORESEEABILITY
In determining whether a person was negligent, it may help to ask whether a
reasonable person in the same situation would have foreseen or anticipated
that injury or damage could result from that person’s action or inaction. If
such a result would be foreseeable by a reasonable person and if the conduct
reasonably could be avoided, then not to avoid it would be negligence.
Dkt. No. 189 (Instruction Nos. 20, 21, and 23). The negligent supervision jury instruction,
corresponding to Question Number 6, provided as follows:
Plaintiffs have alleged negligent supervision against Defendants State of
Hawaii Board of Education Department of Education and Kristin Lindquist.
To prevail on this claim, Plaintiffs must prove that Defendants State of
neither inconsistent with a determination of liability, nor legally irreconcilable with
each other or with a subsidiary legal conclusion. Cf. Zhang v. Am. Gem Seafoods,
Inc., 339 F.3d 1020, 1038 (9th Cir. 2003) (“The alleged inconsistency here,
however, arises not between two factual findings, or between a factual finding and
the ultimate determination of liability, but between a factual finding and subsidiary
legal conclusion within a single claim.”). In this case, there is no legal reason that
the verdicts on the statutory Title IX claim and the state common law tort claims
should necessarily be identical. Neither is predicated on the other. Whether “an
appropriate official possessed enough knowledge of the harassment” such that the
State had “actual knowledge” under Title IX is not dispositive of whether the State
should have reasonably foreseen harm to Mariana. The State could have lacked the
former, while possessing the latter.
The jury, indeed, so found, and that finding is supported by the clear weight of
the evidence. When considering a motion for new trial based on the alleged
insufficiency of evidence, “[a] trial court may grant a new trial only if the jury’s
Hawaii Board of Education Department of Education or Kristin Lindquist
either knew or reasonably should have foreseen that Ruston Tom would
harm Mariana, and they failed to supervise the alleged assailant, Ruston, or
the student allegedly harmed by the assailant, Mariana.
Dkt. No. 189 (Instruction No. 24).
verdict was against the clear weight of the evidence.” Tortu v. Las Vegas Metro.
Police Dep’t, 556 F.3d 1075, 1083 (9th Cir. 2009). “[T]he district court has the
duty . . . to weigh the evidence as [the court] saw it, and to set aside the verdict of the
jury, even though supported by substantial evidence, where, in [the court’s]
conscientious opinion, the verdict is contrary to the clear weight of the evidence.”
Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). Determining whether
a jury verdict is against “the clear weight of the evidence” is a case-specific
endeavor for which there is no easily articulated formula. Id. “A trial court may
grant a new trial only if the verdict is against the clear weight of the evidence, and
may not grant it simply because the court would have arrived at a different verdict.”
Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009) (citing
Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)). “While a district court may
view the evidence differently than the jury, a district court may not substitute its
‘evaluations for those of the jurors.’” Benson Tower Condo. Owners Ass’n v.
Victaulic Co., 105 F. Supp. 3d 1184, 1213 (D. Or. 2015) (quoting Union Oil Co. of
Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 743 (9th Cir. 2003)).
Considering the totality of evidence, including the fact that the jury had the
opportunity to view the panoply of witnesses on the stand and judge their credibility
during direct testimony and cross-examination, the Court finds that the jury’s verdict
that the State and Lindquist breached their state-law negligence duties to Kauhako
and Mariana was not against the clear weight of the evidence. As discussed above,
the evidence showed that various State employees were aware of at least one
previous encounter in late 2012 between Mariana and Tom and had counseled them
regarding appropriate behavior; that other than minimal counseling, the State took
no other specific measure protective of Mariana between late 2012 and April 18,
2013; that notwithstanding the late 2012 encounter, Mariana and Tom were
permitted to use the restroom – unaccompanied – some distance from their special
education classroom; and that when the two students returned to their classroom on
April 18, 2013, both were obviously distressed, indicating even to their teachers that
something traumatic had occurred while they were unsupervised away from class.
Of particular note, the jury also heard evidence that Lindquist told the investigating
police officers on April 18, 2013 of an incident in late 2012 involving “touching”
between Tom and Mariana. Weighing the evidence as the Court saw it, the Court
cannot conclude that “the verdict is against the clear weight of the evidence,”
Molski, 481 F.3d at 729, nor is the Court left with a “definite and firm conviction that
a mistake has been committed,” Landes Constr., Co., Inc., 833 F.2d at 1371-72
(citation omitted). Accordingly, the Court rejects the State’s challenge to the
sufficiency of the evidence.
The Court Did Not Err In Permitting The Testimony of Dr. Lynch
The Court next considers the State’s arguments that it was error to allow Dr.
Lynch to testify as an expert witness because (1) she was not disclosed as an expert
and (2) her testimony resulted in an improper award of $20,000 in future medical
The Court rejects the State’s first contention because Dr. Lynch testified as
Mariana’s treating physician, not as an expert. In fact, the Court denied the State’s
motion in limine to preclude expert opinion testimony from Dr. Lynch (Dkt. No.
106) because no expert report was required in order for Dr. Lynch to render opinions
formulated as Mariana’s treating psychologist and her proffered testimony was
within the scope of that role. See Dkt. No. 156 (4/12/16 Minutes).5 The State
acknowledges in its motion that “a written report was not required from Dr. Lynch,”
but argues that “disclosure that Plaintiffs intended to call her as an expert witness
Generally, a treating physician is not “retained or specially employed to provide expert
testimony”—a treating physician is a percipient witness of the treatment he or she rendered—and
therefore is not subject to the written report requirement. Fed.R.Civ.P. 26(a)(2) advisory
committee’s note (1993). A treating physician is exempt from Rule 26(a)(2)(B)’s written report
requirement to the extent that his or her opinions were formed during the course of treatment.
Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011). The
Goodman decision confirms that a Rule 26(a)(2)(B) report is only required “when a treating
physician morphs into a witness hired to render opinions that go beyond the usual scope of a
treating physician’s testimony.” Goodman, 644 F.3d at 819-20. The Goodman exception is not
applicable here, where the State offers no argument or evidence that Dr. Lynch’s testimony or
opinion was beyond the scope of the treatment she rendered to Mariana.
and the substance of her testimony was required to be disclosed to Plaintiffs on the
date set by the court’s Scheduling Orders.” Mem. In Supp. at 17-18. The State
argues that it was prejudiced because it took her deposition on May 29, 2015 – a year
prior to trial – “believing that she was a treating provider as opposed to an expert
witness.” Id. at 18.
The State could not have been unaware of the content of Dr. Lynch’s
testimony, and it points to no specific trial testimony that went beyond the usual
scope of a treating physician. Plaintiffs’ witness list statement for Dr. Lynch,
submitted several weeks before trial began, disclosed that that she would testify
regarding her medical counseling of Mariana, and matters regarding liability and
damages. Dkt. No. 111 (Plaintiffs’ Final Comprehensive Witness List).
Specifically, the witness statement provided:
Dr. Lynch was Mariana’s counselor. She is expected to testify
as to her communications with Mrs. Kauhako, her
communications with Mariana, her examinations, findings,
diagnoses, impressions, conclusions, and/or opinions as to
Mariana’s Autism, PTSD, psychological, emotional, and mental
condition subsequent to the sexual assault, Mariana’s
appearance, demeanor and state of mind during the course of
counseling, Mariana’s progress and set-backs during the course
of counseling, her knowledge of Mariana’s disabilities and
Autism, her knowledge of Mariana’s PTSD and Autism, her
knowledge of Mariana’s character for honesty and truthfulness,
her knowledge of the impact that the sexual assault had on
Mariana, authentication of her medical and counseling records
regarding Mariana, and all other matters regarding liability and
Dkt. No. 111. The State repeatedly argues that Plaintiffs did not disclose that they
“intended to call Dr. Lynch as an expert witness,” (see, e.g., Reply at 9), but fails to
identify any precise trial testimony that is the particular province of an expert or how
such testimony caused it to be prejudiced. Accordingly, the State’s protestations of
surprise lack merit, and it is not entitled to a new trial on this basis.
The State’s arguments regarding the jury’s award of future medical expenses
are likewise without merit. The Court defers to a jury’s finding of the appropriate
amount of damages unless the award is “grossly excessive or monstrous, clearly not
supported by the evidence, or based only on speculation or guesswork.”
McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 957 (9th Cir.
2011) (quoting Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d
1422, 1435 (9th Cir. 1996)). Such is not the case here. The State maintains that
the jury’s award of $20,000 for Mariana’s future medical expenses is unsupported
because Dr. Lynch testified only that she would “expect future setbacks,” but
offered no evidence of what treatment was needed, or the cost of such treatment, in
order to enable the jury to calculate damages with precision. Plaintiffs point to the
amount of past medical expenses paid to Dr. Lynch as a guidepost (Plaintiffs’
Exhibit 49), which provided the jury with some basis beyond speculation and
Here, sufficient evidence exists in the record to support the jury’s damages
verdict and the Court properly defers to the jury’s calculation of Mariana’s future
medical expenses. See Georges v. Novartis Pharm. Corp., 988 F. Supp. 2d 1152,
1161-62 (C.D. Cal. 2013) (“Plaintiff has presented evidence of her past medical
expenses, setting a baseline for reasonable medical expenses necessary to treat this
condition. . . . Thus, the jury’s award for future economic damages is not speculative
but based on evidence presented at trial. The Court defers to the jury’s exact
calculation of Plaintiff’s past and future economic damages[.]”); see also Zhang,
339 F.3d at 1039-41 (upholding emotional damages based solely on the plaintiff’s
testimony). Because the jury’s $20,000 future damages award is neither
monstrous, grossly excessive, nor purely speculative, the motion is denied.
Based on the foregoing, the State’s Renewed Motion for Judgment as a Matter
of Law or, in the Alternative, for a New Trial is DENIED.
IT IS SO ORDERED.
DATED: August 24, 2016 at Honolulu, Hawai‘i.
Kauhako v. State of Haw., et al., CV 13-00567 DKW-KJM; ORDER DENYING
DEFENDANT STATE OF HAWAII BOARD OF EDUCATION DEPARTMENT
OF EDUCATION’S RENEWED MOTION FOR JUDGMENT AS A MATTER OF
LAW OR, IN THE ALTERNATIVE, FOR A NEW TRIAL
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