Raymond v. County of Kaua'i, Kaua'i Police Department et al

Filing 494

ORDER DENYING DEFENDANT WILCOX MEMORIAL HOSPITAL'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW re: 483 - Signed by JUDGE ALAN C. KAY on 7/10/2019. (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
___________________________________
)
CAMERON RAYMOND,
)
)
Plaintiff,
)
v.
) Civ. No. 15-00212 ACK-WRP
)
WILCOX MEMORIAL HOSPITAL,
)
)
Defendant.
)
___________________________________)

ORDER DENYING DEFENDANT WILCOX MEMORIAL HOSPITAL’S RENEWED
MOTION FOR JUDGMENT AS A MATTER OF LAW
For the reasons discussed below, the Court DENIES
Defendant Wilcox Memorial Hospital’s Renewed Motion for Judgment
as a Matter of Law, ECF No. 483.
BACKGROUND
For purposes of this Order, the Court will not recount
this case’s lengthy procedural and factual history beginning in
2015.

The Court only discusses those facts of specific

relevance to the issues that this Order addresses.

Detailed

procedural and factual discussions are available in the Court’s
Order Denying Defendant Wilcox Memorial Hospital’s Motion for
Judgment as a Matter of Law dated April 16, 2019.

See ECF No.

470.
A jury trial on Plaintiff Cameron Raymond’s
(“Plaintiff”) claims against Defendant Wilcox Memorial Hospital
(“Defendant”) for assault, battery, and intentional infliction

- 1 -

of emotional distress (“IIED”) took place on March 13–15 and 20–
21, 2019.

ECF Nos. 437, 438, 440, 455, and 456.

On March 18,

2019, Defendant filed a Motion for Judgment as a Matter of Law
pursuant to Federal Rule of Civil Procedure 50(a) (the “Rule
50(a) Motion).

ECF No. 444.

Plaintiff filed a Memorandum in

Opposition to Defendant’s Rule 50(a) Motion on March 19, 2019.
The Court heard oral argument on the Rule 50(a) Motion on March
20, 2019, ECF No. 455, but declined to rule thereon until after
the verdict had been rendered.
The jury deliberated on March 21 and 22, 2019, ECF
Nos. 456 and 461, and returned a verdict in favor of Plaintiff
on March 22, 2019.

ECF Nos. 461 and 463.

The jury found

Defendant liable for assault, battery, and IIED, and awarded
Plaintiff $722,600, comprising $297,600 in compensatory damages 1/
and $425,000 in punitive damages.

ECF No. 463.

On April 16,

2019, the Court issued an Order Denying Defendant Wilcox
Memorial Hospital’s Motion for Judgment as a Matter of Law (the
“April 16, 2019 Order”).
that same date.

ECF No. 470.

ECF No. 471.

Judgment was entered on

The Court’s April 16, 2019 Order

is hereby incorporated herein in its entirety.

1/

The jury found that Plaintiff had suffered $22,000 in special
damages and $350,000 in general damages, ECF No. 463 at 4, but
also found that Plaintiff had failed to mitigate damages in the
amount of $74,400. Id. at 7.

- 2 -

On May 14, 2019, Defendant filed the instant Renewed
Motion for Judgment as a Matter of Law pursuant to Federal Rule
of Civil Procedure 50(b) (the “Rule 50(b) Motion”), ECF No. 483,
together with a Memorandum in Support (“Mem. in Supp.”)
thereof. 2/

ECF No. 483-1.

On May 28, 2019, Plaintiff filed a

Memorandum in Opposition (“Mem. in Opp.”), ECF No. 487, and on
June 13, 2019, Defendant filed its Reply.

ECF No. 489.

Under

the Local Rules of Practice for the United States District Court
for the District of Hawai`i, motions for judgment as a matter of
law are non-hearing motions, and the Court finds that a hearing
on this Motion is neither necessary nor appropriate.

See L.R.

7.2(e).
STANDARD
A district court ruling on a motion for judgment as a
matter of law “may not substitute its view of the evidence for
that of the jury,” Johnson v. Paradise Valley Unified Sch.
Dist., 251 F.3d 1222, 1227 (9th Cir. 2001), and must uphold the
jury’s verdict if it is supported by substantial evidence.

See

Wallace v. City of San Diego, 479 F.3d 616, 624 (9th Cir. 2007)
(citing Johnson, 251 F.3d at 1227).

“Substantial evidence is

evidence adequate to support the jury’s conclusion, even if it

2/

Also on May 14, 2019, Defendant filed a Motion for a New Trial
and to Amend the Judgment. ECF No. 481. That motion is
addressed in a separate order.

- 3 -

is also possible to draw a contrary conclusion from the same
evidence.”

Johnson, 251 F.3d at 1227.

A district court ruling

on a motion for judgment as a matter of law should review the
record as a whole, but must disregard all evidence favorable to
the moving party that the jury is not required to believe.

Id.

(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
151 (2000) (“That is, the court should give credence to the
evidence favoring the nonmovant as well as that evidence
supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes
from disinterested witnesses.” (citation and internal quotations
marks omitted))).
In ruling on such a motion, the court must not weigh
the evidence or make credibility determinations, Reeves, 530
U.S. at 150, “but should simply ask whether the plaintiff has
presented sufficient evidence to support the jury’s conclusion,”
Wallace, 479 F.3d at 624 (citing Johnson, 251 F.3d at 1227–28).
“The evidence must be viewed in the light most favorable to the
nonmoving party, and all inferences must be drawn in favor of
that party.”

Id.; see also Reeves, 530 U.S. at 150 (noting that

the standard for judgment as a matter of law mirrors that for
summary judgment).

“Judgment as a matter of law may be granted

only where, so viewed, the evidence permits only one reasonable
conclusion, and that conclusion is contrary to the jury’s

- 4 -

verdict.”

Wallace, 479 F.3d at 624 (citing McLean v. Runyon,

222 F.3d 1150, 1153 (9th Cir. 2000)).

The “high hurdle” the

moving party must clear in order to obtain relief “recognizes
that credibility, inferences, and factfinding are the province
of the jury, not [the] court.”

Costa v. Desert Palace, Inc.,

299 F.3d 838, 859 (9th Cir. 2002).
DISCUSSION
I.

Preliminary Matters
A. Conversion of Defendant’s Rule 50(a) Motion to a Rule
50(b) Motion
As the Court stated in its April 16, 2019 Order,

rather than ruling immediately on a motion for judgment as a
matter of law made before the case is submitted to the jury, a
district court may, under Federal Rule of Civil Procedure 50(b),
“defer its ruling and make a later determination of the legal
questions raised by the motion . . . .

The Court’s deferred

consideration effectively converts the motion into a postverdict Rule 50(b) motion.”

Merino v. Marchon, Inc., No. 92

4662 WDK (JRX), 1994 WL 695826, at *4 (citing Biodex v. Loredan
Biomedical, 946 F.2d 850, 861 (Fed. Cir. 1991)); see also
Runnings v. Ford Motor Co., 461 F.2d 1145, 1148 n.4 (9th Cir.
1972) (noting the “desirability of withholding action on motions
for directed verdicts and permitting the jury to reach a
verdict”); Krechman v. Cty. of Riverside, 723 F.3d 1104, 1110

- 5 -

(9th Cir. 2013) (iterating that “taking a motion under
submission and ruling on it after the jury returns a verdict is
a proper practice”); Fed. R. Civ. P. 50(b) Advisory Committee’s
Note to 1991 Amendment (citing the potential for a movant’s
verdict mooting the motion, and for a reversal on appeal
requiring a new trial, as reasons that “a court may often wisely
decline to rule on a motion for judgment as a matter of law made
at the close of the evidence”).
As another district court put it, “the ruling by the
district court on the deferred Rule 50 motion, whether by grant
or denial, will have the same legal consequence of a ruling by
the district court on a post-verdict motion originally brought
under Rule 50(b).

Because a Rule 50(b) motion is nothing more

than a renewal of the earlier motion, it cannot assert a ground
that was not included in the earlier motion.”

Op Art, Inc. v.

B.I.G. Wholesalers, Inc., Civil Action NO. 3:03-CV-0887-P, 2006
WL 3347911, at *1 (N.D. Tex. Nov. 17, 2006) (citing C. Wright &
A. Miller, Federal Practice and Procedure § 2537 (2d ed. 1986);
Morante v. Am. Gen. Fin. Ctr., 157 F.3d 1006, 1010 (5th Cir.
1998); Allied Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th
Cir. 1993)).
Plaintiff suggests that the Court, in its April 16,
2019 Order, “expressly converted [Defendant]’s Rule 50(a) preverdict motion into a post-verdict Rule 50(b) motion.”

- 6 -

Mem. in

Opp. at 2.

This suggestion mischaracterizes the Court’s April

16, 2019 Order, which merely acknowledged that when a court
defers ruling on a Rule 50(a) motion it effectively converts the
motion into a Rule 50(b) motion; the Court did not expressly
convert Defendant’s Rule 50(a) Motion into a Rule 50(b) Motion.
While conversion might appear a pragmatic approach, it is one
the Ninth Circuit has never endorsed. 3/

Moreover, Defendant is

correct that litigants are required to move under Rule 50(b)
within 28 days after the entry of judgment in order to preserve
for appeal arguments made in a Rule 50(a) motion.

See Fed. R.

Civ. P. 50(b); Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394, 404 (2006) (it is established “that the precise
subject matter of a party’s Rule 50(a) motion . . . cannot be
appealed unless that motion is renewed pursuant to Rule 50(b)”).
Accordingly, Defendant’s Rule 50(b) Motion is properly before
the Court; however, the motion raises significant waiver issues
to which the Court now turns.

3/

Other courts that have deferred ruling on a Rule 50(a) motion
filed at the close of evidence have waited until the movant
renewed its motion under Rule 50(b), denied the Rule 50(a)
motion as moot, and ruled on the merits of the Rule 50(b)
motion. See, e.g., A.H. Lundberg Assocs., Inc. v. TSI, INC.,
CASE NO. C14-1160JLR, 2016 WL 5477525, at *2–3 (W.D. Wash. Sept.
29, 2016); Asahi Glass Co. v. Guardian Indus. Corp., 886 F.
Supp. 2d 369, 378 n.6 (D. Del. 2012); Rose v. Barrett Twp., No.
3:09-CV-01561, 2014 WL 2039621, at *6 (M.D. Pa. May 9, 2014).

- 7 -

B. The New Arguments Raised in Defendant’s Rule 50(b)
Motion Are Waived
The Ninth Circuit has stated the following about the
interplay between Rule 50(a) and Rule 50(b):
A Rule 50(b) motion for judgment as a matter
of law is not a freestanding motion.
Rather, it is a renewed Rule 50(a) motion.
Under Rule 50, a party must make a Rule
50(a) motion for judgment as a matter of law
before a case is submitted to the jury. If
the judge denies or defers ruling on the
motion, and if the jury then returns a
verdict against the moving party, the party
may renew its motion under Rule 50(b).
Because it is a renewed motion, a proper
post-verdict Rule 50(b) motion is limited to
the grounds asserted in the pre-deliberation
Rule 50(a) motion. Thus, a party cannot
properly 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.
E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir.
2009) (citations and internal quotation marks omitted); OTR
Wheel Eng’g, Inc. v. W. Worldwide Servs., Inc., 897 F.3d 1008,
1016 (9th Cir. 2018) (“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 pre-verdict Rule 50(a) motion
. . . .

Such arguments are also waived for purposes of

appeal.”) (citations omitted).

The Advisory Committee’s Note to

the 2006 Amendment to Rule 50(b) emphasizes that “[b]ecause the
Rule 50(b) motion is only a renewal of the pre-verdict motion,

- 8 -

it can be granted only on grounds advanced in the pre-verdict
motion.”
When ruling on a Rule 50(b) motion based on grounds
not previously asserted in a Rule 50(a) motion, courts are
limited to reviewing the jury’s verdict for plain error, and
should reverse only if such plain error would result in a
manifest miscarriage of justice.

Go Daddy Software, Inc., 581

F.3d at 961 (citing Janes v. Wal-Mart Stores, Inc., 279 F.3d
883, 888 (9th Cir. 2002)).

“This exception . . . permits only

extraordinarily deferential review that is limited to whether
there was any evidence to support the jury’s verdict.”

Id. at

962–63 (internal quotation marks omitted, emphasis in original).
In Go Daddy, the Ninth Circuit determined that an
argument first asserted in a movant’s Rule 50(b) motion was the
“logical extension” of an argument asserted in the movant’s Rule
50(a) motion, and therefore the new argument was not waived.
See 581 F.3d at 962; see also Coach, Inc. v. Celco Customs
Servs. Co., CASE NO. CV 11-10787 MMM (FMOx), 2014 WL 12573411,
at *6 (C.D. Cal. June 5, 2014).

However, the Ninth Circuit did

not broadly rule that new arguments raised in Rule 50(b) motions
are proper where those arguments are logical extensions of
arguments raised in Rule 50(a) motions.

Nor did the Ninth

Circuit develop any sort of standard for courts to apply in this
regard, and it appears no other circuits apply a logical

- 9 -

extension analysis when determining whether a party has waived a
new argument raised in a Rule 50(b) motion.
Go Daddy involved a plaintiff who allegedly reported
to a human resources manager that two of his supervisors made
discriminatory comments about him.

581 F.3d at 955, 957.

The

plaintiff was later terminated by a panel that included as a
member the human resources manager to whom the plaintiff
complained.

Id. at 957, 959.

The plaintiff filed suit,

alleging discrimination and retaliation claims; the jury
returned a plaintiff’s verdict on the retaliation claim.
959–60.

Id. at

The court considered a Rule 50(b) argument that the

plaintiff’s alleged reports to the manager could not have
motivated the panel’s termination decision, and the court
determined that this was a logical extension of the defendant’s
sole Rule 50(a) argument that there was insufficient evidence
the manager told her fellow panel members of the plaintiff’s
reports.

Id. at 962–63.

The Ninth Circuit’s analysis suggests

that one argument is the logical extension of another if the
arguments are highly interrelated.

Indeed, the argument that

the plaintiff’s alleged reports to a manager could not have
motivated the panel’s termination decision is dependent upon the
related argument that the manager did not tell her fellow panel
members about the plaintiff’s alleged reports.

- 10 -

The defendant raised two other Rule 50(b) arguments:
(1) there was insufficient evidence for the jury to conclude
that the plaintiff engaged in protected activity; and (2) if
there was sufficient evidence for the jury to conclude that the
plaintiff engaged in protected activity, there was insufficient
evidence that the panel decided to terminate the plaintiff after
he engaged in protected activity.

Id. at 963.

The court

determined that these arguments were not logical extensions of
the defendant’s sole Rule 50(a) argument and were therefore
subject to review for plain error.
Based upon the foregoing, the Court finds it
appropriate to construe the logical extension “exception” to
Rule 50(b) waiver narrowly.

In the Ninth Circuit, “substantial

compliance [with Rule 50] is not enough.”
887.

Janes, 279 F.3d at

The Court now turns to the arguments that Defendant raises

for the first time in its Rule 50(b) Motion. 4/
i.

Expert Testimony

Defendant argues that Plaintiff’s claims were “medical
torts” within the meaning of Hawai`i Revised Statutes (“HRS”) §

4/

To the extent Defendant asserts that the arguments raised for
the first time in its Rule 50(b) Motion were made in its Trial
Brief, ECF No. 377, Reply at 2, and are therefore not waived,
the Ninth Circuit has expressly rejected such arguments. See
Janes, 279 F.3d at 887 (rejecting the defendant’s argument that
its trial brief satisfied the requirements of Rule 50 because
“substantial compliance is not enough.”).

- 11 -

671–1, and therefore Plaintiff’s failure to present expert
testimony that Dr. Chris Elliott’s administration of Haldol
departed from the relevant standard of care entitles Defendant
to judgment as a matter of law.

Mem. in Supp. at 6–7.

In its

Rule 50(a) Motion, Defendant argued that Plaintiff was required
to present expert testimony in order to establish the causation
elements of his claims—that is, that Haldol caused Plaintiff
injuries and damages.

The Rule 50(b) argument suggests that

Plaintiff was required to adduce expert testimony concerning Dr.
Elliott’s decision to administer Haldol, while Defendant argued
under Rule 50(a) that the causative effects of Haldol required
expert testimony.

The arguments are completely unrelated and

the former is not a logical extension of the latter.
Accordingly, the Court finds that this argument is waived.
ii.

Agency Arguments

Defendant’s Rule 50(b) Motion argues that the implied
actual authority theory of agency does not exist in the context
of hospitals and patient care.

Mem. in Supp. at 10.

Defendant’s Rule 50(a) Motion argued only that Dr. Elliott was
not an agent of Wilcox Memorial Hospital under the theory of
apparent authority.

It is likely that Defendant’s argument

about implied actual authority is in fact a direct response to
the Court having found, in its April 16, 2019 Order, substantial
evidence for the jury to conclude that Dr. Elliott was an agent

- 12 -

of Wilcox Memorial Hospital under implied actual authority.

The

Court finds that this argument is not a logical extension of
Defendant’s argument regarding apparent authority because the
arguments concern two different theories of agency law.
Accordingly, this argument is waived. 5/
Relatedly, Defendant’s argument that there is
insufficient evidence to establish that Dr. Elliott was an agent
of Defendant based on implied actual authority, Mem. in Supp. at
10–12, is also waived because no such argument was raised in
Defendant’s Rule 50(b) Motion.
Finally, Defendant argues that Dr. Elliott was not an
agent of Defendant under the theory of apparent authority. Mem.
in Supp. at 12–16.

This argument was raised in Defendant’s Rule

50(a) Motion, so the argument is properly before the Court.

5/

The Court notes that this argument was also waived due to
Defendant’s failure to properly object to the Court’s jury
instruction on implied actual authority, see Day 5 Tr. at 1314–
25, 14:1–7 (Jury Instruction No. 16), under Federal Rule of
Civil Procedure 51(c). See Fed. R. Civ. P. 51(c). As the Court
notes in its Order Denying Defendant’s Motion for a New Trial
and to Amend the Judgment, Defendant’s objection to Jury
Instruction No. 16 did not alert the Court “to the precise
nature of the alleged error” in that jury instruction, VoohriesLarson v. Cessna Aircraft Co., 241 F.3d 707, 714 (9th Cir.
2001); see April 16, 2019 Order at 41–44, and Defendant thus
waived its objection. Nevertheless, in its Order Denying
Defendant’s Motion for a New Trial and to Amend the Judgment,
the Court discusses that even if this argument was not waived,
it is meritless. See April 16, 2019 Order at 44–47. The Court
declines to repeat that analysis here.

- 13 -

iii.

IIED

Defendant raises two arguments in its Rule 50(b)
Motion concerning Plaintiff’s IIED claim.

First, Defendant

argues that Plaintiff was required to present expert testimony
to establish that Dr. Elliott’s administration of Haldol was a
departure from the relevant standard of care or an improper
exercise of his medical judgment.

Mem. in Supp. at 17.

This

argument is waived because it was not raised in Defendant’s Rule
50(a) Motion.
Second, Defendant argues that Plaintiff failed to
prove the elements of his IIED claim and, in making this
argument, focuses on the conduct of Nurse Johns.
at 18–19.

Mem. in Supp.

Defendant made this same argument in its Rule 50(a)

Motion, so the argument is properly before the Court.
iv.

Causation

Defendant’s Rule 50(b) Motion argues that Plaintiff
failed to prove the causation element of each of his claims
because he did not present expert testimony regarding the
causative effects of Haldol.

Mem. in Supp. at 20.

This

argument was raised in Defendant’s Rule 50(a) Motion, and it is
therefore properly before the Court.
v.

Punitive Damages

Defendant raises two arguments in its Rule 50(b)
Motion concerning punitive damages.

- 14 -

First, Defendant argues

that Plaintiff failed to prove his entitlement to punitive
damages based upon Dr. Elliott’s conduct.
26.

Mem. in Supp. at 24–

Defendant’s Rule 50(a) Motion raised a similar argument,

but only focused on the conduct of Nurse Johns.

Nevertheless,

when the Court heard oral argument on Defendant’s Rule 50(a)
Motion, Defendant included arguments related to the conduct of
both Dr. Elliott and Nurse Johns.
80:1–23.

See Day 4 Tr. at 79:22–25,

Accordingly, Defendant’s argument that Plaintiff did

not meet his burden of proof on punitive damages is properly
before the Court.
Second, Defendant argues in its Rule 50(b) Motion that
an award of punitive damages is improper because there is no
evidence that Defendant, as principal, approved, authorized, or
ratified the conduct of Dr. Elliott, Defendant’s agent.
Supp. at 27–29.

Mem. in

Nothing resembling this argument appears in

Defendant’s Rule 50(a) Motion, so the argument is thus waived.
II.

Defendant’s Rule 50(b) Motion
Notwithstanding that many of Defendant’s arguments are

waived, the Court finds, for the reasons discussed below, that
none of the arguments asserted in Defendant’s Rule 50(b) Motion
have merit.

- 15 -

A. Plaintiff’s Failure to Present Expert Testimony Does
Not Entitle Defendant to Judgment as a Matter of Law
Defendant argues that in order to prevail on any of
his claims, Plaintiff was required to adduce expert testimony
that Dr. Elliott’s administration of Haldol was an improper
exercise of medical judgment.

Mem. in Supp. at 5.

In effect,

Defendant argues that Plaintiff’s claims were “medical torts”
under HRS § 671–1, and to prevail, Plaintiff was required to
adduce expert testimony that Dr. Elliott’s conduct was a
departure from the relevant standard of care.
6–9.

Mem. in Supp. at

The Court addressed related arguments at length in its

April 16, 2019 Order.

See April 16, 2019 Order at 32–37

(rejecting Defendant’s argument that expert testimony was
required to prove the causation elements of Plaintiff’s assault
and battery claims), 45–48 (rejecting Defendant’s argument that
expert testimony was required to prove the causation element of
Plaintiff’s IIED claim).
Hawai`i law defines “medical tort” as “professional
negligence, the rendering of professional service without
informed consent, or an error or omission in professional
practice, by a health care provider, which proximately causes
death, injury, or other damage to a patient.”
671–1(2).

Haw. Rev. Stat. §

The Hawai`i Supreme Court has stated that HRS § 671

was enacted principally for purposes of stabilizing the medical

- 16 -

malpractice insurance industry in Hawai`i.

See Doe v. City and

Cty. of Honolulu, 93 Haw. 490, 497–98, 6 P.3d 362, 369–70 (2000)
(citation omitted).

Doe and Dubin v. Wakuzawa, 89 Haw. 188, 970

P.2d 496 (1998), two cases cited by Defendant, Mem. in Supp. at
6–8, concern the question of what sorts of claims constitute
medical torts and, therefore, must be submitted to the Medical
Claim Conciliation Panel as a precondition to bringing medical
tort claims in state court.

See Doe, 93 Haw. at 498, 6 P.3d at

370; Dubin, 89 Haw. at 194–95, 970 P.2d at 502–03.
While Defendant is correct that under Hawai`i law a
medical tort can include “intentional acts and negligent acts
and acts for proper purposes and acts for improper purposes,”
Doe, 93 Haw. at 499, 6 P.3d at 371, Doe and the related cases
cited by Defendant do not hold that expert testimony concerning
the standard of care is required whenever a Plaintiff asserts
medical tort claims.

Nor do they hold, relatedly, that expert

testimony is required to establish that a medical practitioner’s
conduct was an improper exercise of medical judgment.
Defendant cites several Hawai`i cases for the
proposition that a plaintiff alleging a medical tort must
establish that the defendant’s conduct departed from “the proper
standards of professional practice,” Mem. in Supp. at 8, but
these cases are inapposite because they did not involve
intentional torts.

See Barbee v. Queen’s Med. Ctr., 119 Haw.

- 17 -

136, 159, 194 P.3d 1098, 1121 (Ct. App. 2008) (medical
negligence claims generally require expert testimony
establishing the standard of care and causation); Bernard v.
Char, 79 Haw. 371, 377, 903 P.2d 676, 682 (Ct. App. 1995)
(same); Craft v. Peebles, 78 Haw. 287, 298, 893 P.2d 138, 149
(1995) (same).

Consistent with Hawai`i’s medical negligence

case law, the Court found that Defendant was entitled to summary
judgment on Plaintiff’s medical negligence claim due to his
failure to disclose an expert witness by the disclosure
deadline.

See ECF No. 164 at 42–46.

In short, Defendant has

not identified, nor is the Court aware of, any case applying
Hawai`i law that has required a plaintiff to adduce expert
testimony in order to prevail on assault, battery, or IIED
claims arising in a medical setting.
Accordingly, the Court will address the case law from
other jurisdictions that Defendant has suggested should apply
here.

Defendant offers Phillips v. Fairview Health Servs.,

Civil No. 10-4442, 2011 WL 6151514 (D. Minn. Dec. 12, 2011),
Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802 (Tex. App.
2005), and Lucas v. Awaad, 299 Mich. App. 345, 830 N.W.2d 141
(2013).
In Phillips, the plaintiff asserted claims for false
imprisonment, IIED, and battery arising out of his experience at
a hospital.

2011 WL 6151514, at *1–2.

- 18 -

The crux of the

plaintiff’s claims was that the hospital’s decision to not
immediately release him due to his suicidal ideations
constituted false imprisonment and IIED, while the battery claim
arose from a botched blood draw.

Id.

The court dismissed the

claims, having determined they fell within a Minnesota statute
that requires plaintiffs “alleging malpractice, error, mistake,
or failure to cure . . . against a health care provider” to file
with the court, within 60 days of serving the complaint, an
affidavit stating that the plaintiff’s attorney has reviewed the
facts with an expert, and the expert is of the opinion that the
defendant deviated from the standard of care and thereby caused
the plaintiff’s injury.

Id. at 2–3; see Minn. Stat. § 145.682.

The court determined that the statute mandating expert testimony
applied because the alleged mistreatment underpinning the
plaintiff’s claims arose out of the hospital employees’
provision of medical services.

Id. at 2–3.

Unlike the

Minnesota statute at issue in Phillips, Chapter 671 of the
Hawai`i Revised Statutes, titled “Medical Torts,” does not
feature any expert testimony requirements.

Thus, even if the

Court were to determine that Plaintiff’s intentional tort claims
were medical torts as defined in HRS § 671–1(2), no Hawai`i case
or statute mandates that a Plaintiff adduce expert testimony to
prevail on intentional medical tort claims.

Although Hawai`i

law requires expert testimony to establish the standard of care

- 19 -

and causation for medical negligence claims, Craft, 78 Haw. at
298, 893 P.2d at 149, Hawai`i law does not require expert
testimony for intentional torts involving the practice of
medicine.

While the Court dismissed Plaintiff’s medical

negligence claim due to his failure to disclose an expert
witness by the deadline, see ECF No. 164 at 42–46, at issue here
are intentional tort claims.
Groomes is similarly inapplicable.

In Groomes, the

court was tasked with determining whether false imprisonment and
IIED claims were “health care liability claims” within the
meaning of the Texas Medical Liability and Insurance Improvement
Act, a statute that requires plaintiffs to provide defendants
with expert reports within 180 days of filing a lawsuit alleging
health care liability claims.
Prac. & Rem. § 74.351.

170 S.W.3d at 805; also Tex. Civ.

The court ruled that the plaintiff could

not “avoid the requirements of the [statute] by recasting her
claims as non-medical negligence claims.”

Id. at 806.

The

instant case is distinguishable because Plaintiff asserted
intentional tort claims, not medical negligence claims.

As the

Court already noted, Plaintiff’s failure to disclose an expert
witness by the disclosure deadline barred his medical negligence
claim.

See ECF No. 164 at 42–46.

Thus the Court reiterates

that even if it were to determine that Plaintiff’s claims were
medical torts within the meaning of HRS § 671–1(2), Hawai`i law

- 20 -

simply does not require a Plaintiff to adduce expert testimony
to prove intentional medical torts.
Lucas involved a doctor who the plaintiff alleged had
intentionally misdiagnosed her children with epilepsy/seizure
disorder for purposes of financial gain.
The plaintiff sued for IIED.

Id.

830 N.W.2d at 151.

The court ruled that the

plaintiff’s claim was, in fact, a medical malpractice claim,
because in order to prevail she “would necessarily have to
establish that her children did not suffer from epilepsy/seizure
disorder,” which would “necessarily require expert testimony
involving issues of medical judgment[.]”

Id. at 151.

Nothing

in Lucas suggests that all IIED claims involving medical
settings require expert testimony.
For the foregoing reasons, the Court finds that none
of the aforementioned cases apply here because the expert
testimony requirements in those cases were either mandated by
statute or well-settled case law.

Hawai`i has no similar

statutory requirements, and Defendant has not identified, nor is
the Court aware of, any Hawai`i case that requires a plaintiff
to adduce expert testimony for claims of assault, battery, or
IIED arising from the practice of medicine.

Accordingly, the

Court finds that Defendant is not entitled to judgment as a
matter of law due to Plaintiff’s failure to adduce expert
testimony regarding Dr. Elliott’s administration of Haldol.

- 21 -

Defendant next argues that even if expert testimony
was not required, Plaintiff failed to proffer sufficient
evidence at trial to establish that Dr. Elliott’s administration
of Haldol was not medically necessary for his safe transport to
Mahelona within the meaning of HRS § 334–59(a)(3). 6/

Mem. in

Supp. at 10.
The Court reiterates that there is substantial and
clear and convincing evidence to support the jury’s conclusion,
see Verdict Form Question No. 4, ECF No. 463, that the
administration of Haldol was not medically necessary for
Plaintiff’s safe transportation to Mahelona.
6/

The Court first

HRS § 334–59 provides, in subsection (a), three ways by which
emergency admission to a licensed psychiatric facility may be
initiated. The relevant provision of the statute states:
Any licensed physician, advanced practice
registered nurse, physician assistant, or
psychologist who has examined a person and
has reason to believe the person is:
(A) Mentally ill or suffering from
substance abuse;
(B) Imminently dangerous to self
or others; and
(C) In need of care or treatment;
May direct transportation, by ambulance or
other suitable means, to a licensed
psychiatric facility for further evaluation
and possible emergency hospitalization. A
licensed physician, an advanced practice
registered nurse, or physician assistant may
administer treatment as is medically
necessary, for the person’s safe
transportation. A licensed psychologist may
administer treatment as is psychologically
necessary.
HRS § 334–59(a)(3).

- 22 -

notes that because neither party designated any expert witness
(medical or otherwise), the informative testimony available to
the jury was necessarily limited in scope.

Moreover, Defendant

bore the burden of proof to establish this affirmative defense
with evidence sufficient to demonstrate that the administration
of Haldol was medically necessary for Plaintiff’s safe
transportation to Mahelona.
To that end, Dr. Elliott testified in support of his
decision to administer both Geodon and Haldol, stating that he
“felt it was necessary” to administer both medications for the
15- to 25-minute, nine-mile car ride from Wilcox Memorial
Hospital to Mahelona.

Day 1 Tr. at 79:7–17.

But the jury also heard evidence to the contrary.
Specifically, psychiatric social worker Madeline Hiraga-Nuccio
testified that Judge Edmund Acoba’s order did not specifically
authorize Defendant to administer medication to Plaintiff, Day 3
Tr. at 74:16–20, 76:11–15; however, Dr. Elliott was authorized
to administer treatment under HRS § 334–59(a)(3), but only but
only such “treatment as is medically necessary” for Plaintiff’s
“safe transportation” to Mahelona.
59(a)(3).

Haw. Rev. Stat. § 334–

Nurse Dallen Johns testified that it was his

understanding that the Haldol “wasn’t for [Plaintiff’s] safe
transport and it was for his psychological stability.”
Tr. at 43:23–25.

Day 3

Dr. Harold Goldberg testified that Plaintiff

- 23 -

was administered Geodon “primarily to calm him and sedate him
and make him easier to transport[,]” while plaintiff was given
Haldol “specifically for the psychotic-like things that he had
been saying.”

Day 4 Tr. at 11–17.

Dr. Goldberg also testified

that he told Plaintiff the one hundred milligrams of Haldol
administered by Dr. Elliott would remain in his system for
thirty days, Day 4 Tr. at 16:11–13, 17:11–18, while Mahelona was
only nine miles from Wilcox Memorial Hospital, and thus only a
15- to 25-minute drive.

Day 4 Tr. at 11:21–25, 12:1.

Finally,

Dr. Goldberg testified that Mahelona is a “specialized facility”
whose role was to address the “psychotic symptoms” Plaintiff was
exhibiting.

Day 4 Tr. at 72:15–25, 73: 1–7.

Yet Dr. Elliott

nevertheless instead chose to administer one hundred milligrams
of Haldol for the same “psychotic symptoms” which were meant to
be treated at the Mahelona psychiatric facility.
72:15–25, 73:1–2.

Day 4 Tr. at

Dr. Goldberg confirmed “those were the same

symptoms that he was specifically being taken to Mahelona to
address.”

Day 4 Tr. at 72:25, 73:1–2.
Based on the foregoing, the Court finds that there is

substantial and clear and convincing evidence to support the
jury’s conclusion that Dr. Elliott’s administration of one
hundred milligrams of Haldol, which remained in Plaintiff’s
system for thirty days, Day 4 Tr. at 16:11–13, 17:11–18, was not
medically necessary for Plaintiff’s safe transportation to

- 24 -

Mahelona, and therefore did not come within the authority of HRS
334–59(a)(3).

Accordingly, Defendant is not entitled to

judgment as a matter of law on this basis.
B. There Is Substantial Evidence to Support a Finding
that Dr. Elliott Was an Agent of Defendant
Defendant argues that it is not liable for Dr.
Elliott’s administration of Haldol to Plaintiff because Dr.
Elliott was not an agent of Wilcox Memorial Hospital.

Defendant

asserts three related arguments.
i.

Implied Actual Authority Applies and There Is
Substantial Evidence to Support a Finding that
Dr. Elliott Was an Agent of Defendant Under
Implied Actual Authority

Defendant argues that the implied actual authority
theory of agency does not apply to patient care in hospital
settings—implicitly arguing that the Court’s jury instruction on
implied actual authority was improper.
also Jury Instruction No. 16.

Mem. in Supp. at 10; see

The Court rejects this argument

in its Order Denying Defendant’s Motion for a New Trial and to
Amend the Judgment.
Therein, the Court disagreed with Defendant’s argument
that Bynum v. Magno, 125 F. Supp. 2d 1249 (D. Haw. 2000)
abrogated the theory of implied actual authority in the context
of hospitals and patient care.

In fact, Bynum merely adopted a

test for determining apparent authority in the context of
hospitals and patient care.

125 Supp. 2d at 1266.

- 25 -

The

plaintiff in Bynum did not argue that the hospital should be
liable for the acts of its independent contractor physicians
under the theory of implied actual authority, and the Bynum
court understandably did not address that theory of agency.
There are cases where other states have recognized the theory of
implied actual authority in the context of hospitals and patient
care.

See Mueller v. Auker, No. CV-04-300-S-BLW, 2006 WL

1006871, at *1 (D. Idaho Apr. 14, 2006); Alar v. Mercy Mem’l
Hosp., 208 Mich. App. 518, 528, 529 N.W.2d 318, 323 (1995).
Moreover, Hawai`i courts recognize the theory of implied actual
authority as a general matter.

See e.g., Cho Mark Oriental

Food, Ltd. v. K & K Intern., 73 Haw. 509, 515–16, 836 P.2d 1057,
1061–62 (1992); Haw. Rev. Civ. Jury Instr. 15.18 (Hawai`i model
civil jury instruction on implied actual authority).

The Court,

having found that implied actual authority is a perfectly valid
theory of agency and that Hawai`i law does not bar its
application in the context of hospitals and patient care,
declines to further address this issue at this time.
Defendant next attacks the Court’s finding in its
April 16, 2019 Order that there was substantial evidence for the
jury to conclude Dr. Elliott was an agent of Wilcox Memorial

- 26 -

Hospital under the theory of implied actual authority. 7/
Supp. at 11–12; see April 16, 2019 Order at 27–29.

Mem. in

Defendant

has not provided any legal basis or authority to cause the Court
to reverse its earlier ruling, so the Court declines to do so.
However, the Court reiterates the following: Dr. Elliott
testified that his work at Wilcox Memorial Hospital involved
“running [Defendant’s] 20-bed emergency room with multiple
things going on at one time,” Day 1 Tr. at 9:4, 36:24–25, 35:1,
70:21–22; Day 3 Tr. at 30:5–8 (testimony of Nurse Johns), which
included “very frequently” working with a psychiatric social
worker to assess and treat patients pursuant to HRS § 334–59(a).
Day 1 Tr. at 67:12–25, 68:1–3.

Dr. Elliott also testified that

nurses working at Wilcox Memorial Hospital took instruction from
him when he practiced medicine there, and that he was
responsible for overseeing Plaintiff’s overall care and
treatment while Plaintiff was at Wilcox Memorial Hospital.
1 Tr. at 33:1–3, 39:21–23.

Day

Moreover, Nurse Johns testified that

Dr. Elliott had the authority to order and administer drugs

7/

To determine whether an individual is an agent based upon
implied actual authority, “the focus is on the agent’s
understanding of this authority inasmuch as the relevant inquiry
is whether the agent reasonably believes, because of the conduct
of the principal (including acquiescence) communicated directly
or indirectly to him, that the principal desired him to so act.”
Cho Mark Oriental, Ltd., 73 Haw. at 516, 836 P.2d at 1062
(citation and internal quotation marks omitted).

- 27 -

while he was practicing medicine at Wilcox Memorial Hospital,
Day 3 Tr. at 30:9–13.
The foregoing indicates that Defendant acquiesced to
Dr. Elliott’s conduct on its behalf, and that Dr. Elliott
reasonably believed Defendant desired him to undertake
Plaintiff’s treatment, which included ordering the
administration of Haldol.
Additionally, evidence in the form of a letter dated
January 27, 2014 from Kathy Clark, then President and CEO of
Defendant, addressed to Plaintiff, indicates that Dr. Elliott
acted within the scope of his authority as Defendant’s agent
when he ordered the administration of Haldol in the course of
treating Plaintiff.

See Defendant’s Exhibit 30, ECF No. 487-9.

The letter was “written in follow-up to complaints received
regarding [Plaintiff’s] Emergency Department visit of June 5,
2013.”

Id.

Ms. Clark states that she had Plaintiff’s medical

record and care reviewed by Defendant’s quality physician, and
that “it is my determination that the care you received was
appropriate, and we consider this matter closed.”

Id.

Thus,

having knowledge of the material facts, Defendant’s thenPresident and CEO determined that Dr. Elliott’s administration
of one hundred milligrams of Haldol to Plaintiff was
appropriate, which serves as evidence that Dr. Elliott acted
within the scope of his authority as Defendant’s agent.

- 28 -

There was thus substantial evidence in the record for
the jury to conclude that Dr. Elliott acted as Defendant’s agent
under the theory of implied actual authority and that Dr.
Elliott acted within the scope of his authority as Defendant’s
agent when he ordered Nurse Johns to inject Plaintiff with one
hundred milligrams of Haldol.

Dr. Elliott’s actions were thus

binding on Defendant as principal and, accordingly, Defendant is
not entitled to judgment as a matter of law on the issue of
agency.
ii.

There Is Substantial Evidence to Support a
Finding that Dr. Elliott Was an Agent of
Defendant Under Apparent Authority

Defendant also argues that there was insufficient
evidence for the jury to conclude that Dr. Elliott acted as
Defendant’s agent under the apparent authority theory of agency.
Mem. in Supp. at 12–16.

The jury was instructed on implied

actual authority and apparent authority.
16 and 17.

See Jury Instr. Nos.

Thus, the Court, having concluded that there was

substantial evidence for the jury to decide that Dr. Elliott was
Defendant’s agent under the theory of implied actual authority,
need not reach Defendant’s argument regarding apparent
authority.

Nevertheless, the Court will briefly address

apparent authority.
Hawai`i courts have never addressed the theory of
apparent authority in the context of hospitals and patient care,

- 29 -

and the only related case is the nineteen-year-old Hawai`i
federal district court case Bynum, 125 F. Supp. 2d at 1249.

The

Bynum court stated that a “hospital may be liable for a
physician/independent contractor when he/she is cloaked in the
apparent authority of the hospital, i.e., where the patient
reasonably believes that the doctor is an agent of the
hospital.”

125 F. Supp. 2d at 1265.

The court considered cases

from other jurisdictions and adopted a test endorsed by courts
in Texas and Connecticut, which requires the plaintiff to prove
“that (1) he/she had a reasonable belief that the physician was
the agent/employee of the hospital, (2) the belief was generated
by some affirmative act of the hospital or physician, and (3)
the patient justifiably relied on the representation of
authority.”

Id. (citing Valdez v. Pasadena Healthcare Mgmt.,

975 S.W.2d 43, 46–47 (Tex. App. 1998); Menzie v. Windham Cmty.
Hosp., 774 F. Supp. 91, 97 (D. Conn. 1991)).
Here, applying Bynum, there was substantial evidence
for the jury to conclude that Plaintiff had a reasonable belief
Dr. Elliott was an agent or employee of Defendant.

When

Plaintiff was brought to Wilcox Memorial Hospital, Plaintiff was
given a consent form, which he was required to sign, that
prominently featured the logo of Wilcox Memorial Hospital.
Def.’s Exh. 6, ECF No. 483-12.

See

The “Consent for Treatment”

section of the form states “I wish to receive medical care and

- 30 -

treatment at Wilcox Memorial Hospital.

Accordingly, I consent

to the procedures, which may be performed during this
hospitalization or clinic visit, including emergency treatment.
I authorize and consent to any of the following: . . . or other
clinical and hospital service’s [sic] as directed by my
physicians(s) or my physician’s(s) assistants. . . .”

Id.

The

Court finds that this language suggests Wilcox Memorial Hospital
and the physicians who work there are one and the same—the
patient consents to treatment at Wilcox Memorial Hospital and
whatever hospital services the physicians direct.
Moreover, Dr. Elliott never informed Plaintiff during
his intake evaluation that he was not an employee of Wilcox
Memorial Hospital.

See Tr. Day 2 at 119:21-25, 120:1–25, 121:1–

25, 122:1–12 (Plaintiff’s testimony that he only saw Dr. Elliott
on the night of the incident for five minutes and that the
conversation consisted of Dr. Elliott asking Plaintiff questions
regarding the events that took place earlier in the night).

The

Court finds that the recitation of the foregoing serves as
substantial evidence for the jury to conclude Plaintiff had a
reasonable belief that Dr. Elliott was an agent or employee of
Defendant. 8/

8/

Although the “Financial Agreement” section of the consent form
states that “I further understand not all physicians are
employees of this medical facility,” Def.’s Exh. 6, the Court
(Continued...)
- 31 -

As for the second element of apparent authority under
Bynum, Plaintiff was given and required to sign the consent form
upon his arrival at Wilcox Memorial Hospital.

The Court finds

that this serves as substantial evidence of an affirmative act
of Defendant sufficient to generate Plaintiff’s belief that Dr.
Elliott was an employee or agent of Wilcox Memorial Hospital.
Finally, on justifiable reliance, the Court finds that
by signing the form, Plaintiff justifiably relied on the
representations contained therein.

The jury may have determined

that by signing the consent form, Plaintiff justifiably relied
on Defendant’s representations because he was to “receive
medical care and treatment at Wilcox Memorial Hospital.”
(emphasis added).

Id.

Moreover, the only section of the form that

discusses physicians’ relationships with Wilcox Memorial
Hospital contained a representation that “not all physicians are
finds that this language implies that most physicians are, in
fact, physicians of Wilcox Memorial Hospital. Moreover, this
language simply qualifies the sentence that precedes it: “The
physician(s) may bill me separately for their services provided
to me while at this facility.” Id. In other words, the
language serves to inform patients that they might receive
separate bills from some doctors because some doctors are not
employees of the hospital. It would be unreasonable to read the
language as implying all, or even most, physicians are not
employees, particularly where the language appears in a section
titled “Financial Agreement.” The language implies just the
opposite—that most physicians working at Wilcox Memorial
Hospital are employees of Defendant. Accordingly, the Court
finds that this statement is insufficient to establish that
Plaintiff had notice that Dr. Elliott was not an agent or
employee of Defendant.

- 32 -

employees of this medical facility.”

Def.’s Exh. 6.

The Court

finds that this language indicates that most physicians are, in
fact, employees of Wilcox Memorial Hospital.

Cf. Fletcher v. S.

Peninsula Hosp., 71 P.3d 833, 841 (Alaska 2003) (finding that a
consent form that stated “I recognize that all physicians and
dentists who may be treating me are independent . . . and are
not employees or agents of the hospital” was sufficient action
by the hospital to dispel any appearance of employment, agency,
or authority).
For the foregoing reasons, the Court finds that
substantial evidence was presented at trial such that the jury
could conclude that Dr. Elliott was an agent of Defendant under
the theory of apparent authority.

Indeed, judgment as a matter

of law may be granted only where “the evidence permits only one
reasonable conclusion, and that conclusion is contrary to the
jury’s verdict.”

Wallace, 479 F.3d at 624.

Here, the jury’s

conclusion is consistent with the weight of the evidence.
Accordingly, Defendant is not entitled to judgment as a matter
of law on the issue of agency.
The Court would reach the same conclusion even if
there was insufficient evidence for the jury to conclude that
Dr. Elliott was an agent of Defendant under the theory of
apparent authority.

As the Court noted, the jury was instructed

on implied actual authority and apparent authority, and there

- 33 -

was substantial evidence for the jury to conclude that Dr.
Elliott was an agent of Defendant under the theory of implied
actual authority.
C. There Was Substantial and Clear and Convincing
Evidence to Support a Finding of Liability for IIED
Defendant argues that Plaintiff was required to
present expert testimony regarding the standard of care in order
to prevail on his claim for IIED.

Mem. in Supp. at 16–18.

For

the reasons discussed supra, this argument fails, and the Court
will address it no further.
Defendant also reiterates its argument that it is
entitled to judgment as a matter of law because there is
insufficient evidence to establish the elements of IIED. 9/
at 18–20.

Id.

This argument fails for the same reasons the Court

discussed in its April 16, 2019 Order, where the Court found
there was substantial evidence for the jury to conclude that the
elements of IIED were met.
The Court reiterates that the jury heard testimony
that Dr. Elliott administered one hundred milligrams of Haldol,
a long-acting antipsychotic, to Plaintiff, and that the Haldol
would remain in Plaintiff’s system for thirty days.
9/

See Day 4

A plaintiff asserting a claim for IIED must establish “1) that
the act allegedly causing the harm was intentional or reckless,
2) that the act was outrageous, and 3) that the act caused 4)
extreme emotional distress” to him. Hac v. Univ. of Hawai`i,
102 Haw. 92, 106–07, 73 P.3d 46, 60–61 (2003).

- 34 -

Tr. at 16:11–13, 17:11–18 (Dr. Goldberg’s testimony that he told
Plaintiff the Haldol would remain in his system for thirty
days).

Plaintiff testified that he did not consent to the

administration of medication.

Day 1 Tr. at 131:18–19.

Dr.

Goldberg further testified that he understood Plaintiff was
administered Geodon in order to calm him down and effect his
safe transport the nine miles from the emergency room of Wilcox
Memorial Hospital to Mahelona, while Plaintiff was administered
Haldol in order to address the very psychotic symptoms he was
being taken to Mahelona, a specialized psychiatric facility, to
address.

Day 4 Tr. at 72:15–25, 73:1–16; see also Day 1 Tr. at

79:7–9 (Dr. Elliott’s testimony that Geodon is a short-acting
alternative to Haldol).

Nurse Johns also testified that

Plaintiff was given Haldol to address his psychological
stability and not for the purpose of his safe transport to
Mahelona.

Day 3 Tr. at 43:23–25.

Further, Dr. Goldberg

testified that he wrote Plaintiff a “prescription for Haldol
tablets, 10 milligrams, to be taken nightly for ten days,” and
that these ten milligram Haldol tablets were to help “wean him
off” the one hundred milligram dose of Haldol Dr. Elliott
administered.

Day 4 Tr. at 15:25, 16:1–2, 17:11–18.

Thus,

although Defendant argues that Plaintiff failed to have an
expert testify that one hundred milligrams of Haldol was too
high of a dose, the jury heard Dr. Goldberg’s testimony that the

- 35 -

Haldol would remain in Plaintiff’s system for thirty days, and
moreover, Dr. Goldberg gave him a lower dose of Haldol to help
wean him off the heavy one hundred milligram dose he received
from Dr. Elliott.
The jury heard testimony that Plaintiff was calm and
non-combative while at Wilcox Memorial Hospital.

See Day 1 Tr.

at 41:12–21 (Dr. Elliott testifying that a nurse documented
Plaintiff as being alert and appropriate, calm and cooperative,
and oriented to person, time, place, and situation).

Dr.

Elliott in fact testified that after he examined Plaintiff, he
was uncertain whether Plaintiff exhibited the bizarre behavior
that prompted his arrival at Wilcox Memorial Hospital, and Dr.
Elliott did not observe Plaintiff behaving bizarrely, behaving
violently, or threatening anyone.

Day 1 Tr. at 47:2–17.

Further, Nurse Johns testified that Plaintiff did not
consent to the administration of Haldol, and in fact Nurse Johns
conferred with Dr. Elliott about Plaintiff’s refusal to receive
medication.

Day 3 Tr. at 40:14–25, 41:1–10.

Although Nurse

Johns testified that Plaintiff threatened him with a “magic
sword,” Nurse Johns further testified that he did not inform Dr.
Elliott of this purported threat because it was not “relative to
the situation”—Nurse Johns only informed Dr. Elliott of
Plaintiff’s refusal to receive medication.
11.

Day 3 Tr. at 31:1–

Notwithstanding Plaintiff’s refusal and his lack of

- 36 -

consent, Dr. Elliott told Nurse Johns that he was to “proceed
with medication administration.”

Day 3 Tr. at 17:1–7

There was also substantial and clear and convincing
evidence to support the jury’s conclusion that the
administration of Haldol was not medically necessary for
Plaintiff’s safe transportation to Mahelona.

As the Court

already noted, both Dr. Goldberg and Nurse Johns testified that
Plaintiff was administered Geodon for the purpose of safely
transporting him to Mahelona, while Plaintiff was administered
Haldol for his psychological symptoms.

Day 3 Tr. at 43:23–25

(testimony of Nurse Johns); Day 4 Tr. at 72:15–25, 73:1–16
(testimony of Dr. Goldberg).
Based upon the foregoing, the jury had substantial and
clear and convincing evidence to support its conclusion that
Defendant, acting through its agent Dr. Elliott and employee
Nurse Johns, recklessly caused Plaintiff to be injected with 100
milligrams of Haldol, and that these actions were sufficiently
outrageous for purposes of an IIED claim.

As discussed below,

there was also substantial and clear and convincing evidence for
the jury to conclude that this conduct caused Plaintiff’s
injuries.

Accordingly, Defendant is not entitled to judgment as

a matter of law on Plaintiff’s IIED claims.

- 37 -

D. Expert Testimony Was Not Required to Establish the
Causative Effects of Haldol
Yet again, Defendant argues that Plaintiff was
required to present expert testimony to prevail on his claims,
this time specifically arguing that expert testimony was
required to establish that the administration of Haldol caused
the injures Plaintiff suffered.

Mem. in Supp. at 20–23.

The Court addressed this argument at length in its
April 16, 2019 Order and rejected it.

See April 16, 2019 Order

at 32–37 (regarding causation for assault and battery), 45–48
(regarding causation for IIED).

In short, the Court ruled (1)

that Hawai`i law did not require Plaintiff to adduce expert
testimony to prove the administration of Haldol caused
Plaintiff’s physical or emotional injuries; and (2) that
Plaintiff adduced substantial evidence for the jury to conclude
that Haldol caused Plaintiff’s physical and emotional injuries.
Indeed, Dr. Goldberg confirmed that he treated Plaintiff’s “side
effects from the Haldol for months.”

Day 4 Tr. at 72:11–14.

Defendant’s Rule 50(b) Motion offers no new legal
basis or authority to cause the Court to reverse its earlier
ruling, and Defendant therefore is not entitled to judgment as a
matter of law on the issue of causation.

- 38 -

E. There Was Substantial and Clear and Convincing
Evidence to Support the Jury’s Award of Punitive
Damages
Defendant first argues that the jury’s award of
punitive damages was against the weight of the evidence because
there was no evidence Dr. Elliott engaged in the type of
conscious wrongdoing that warrants an award of punitive damages.
Mem. in Supp. at 26.

The Court rejected this argument in its

April 16, 2019, and the Court also rejects this argument in its
Order Denying Defendant’s Motion for a New Trial and to Amend
the Judgment, finding in both instances that the jury’s punitive
damages award was supported by substantial and clear and
convincing evidence.
Defendant next argues that the jury’s punitive damages
award was improper because punitive damages are not permitted
against a principal unless the principal approved, authorized,
or ratified its agent’s tortious conduct.

The Court, having

thoroughly analyzed and found that Defendant impliedly
authorized, and expressly approved and ratified Dr. Elliott’s
conduct, rejects this argument in its Order Denying Defendant’s
Motion for a New Trial and to Amend the Judgment filed
concurrently herewith, and declines to further address it
herein.

Moreover, the Court emphasizes that the letter dated

January 27, 2014 from Ms. Clark, Defendant’s then-President and
CEO, serves as substantial and clear and convincing evidence for

- 39 -

the jury to conclude that Dr. Elliott acted within the scope of
his authority as Defendant’s agent when he ordered the
administration of one hundred milligrams of Haldol.

Indeed, Ms.

Clark had Plaintiff’s care reviewed by Defendant’s quality
assurance physician and wrote “it is my determination that the
care you received was appropriate.”
Plaintiff has not presented any legal basis or
authority to cause the Court to reverse its rulings as to
punitive damages.

Accordingly, because the jury’s punitive

damages award was supported by substantial and clear and
convincing evidence, Defendant is not entitled to judgment as a
matter of law on the issue of punitive damages.
CONCLUSION
For the foregoing reasons, Defendant’s Renewed Motion
for Judgment as a Matter of Law is hereby DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawai`i, July 10, 2019.

________________________________
Alan C. Kay
Sr. United States District Judge

Raymond v. Wilcox Memorial Hospital, Civ. No. 15-00212 ACK-WRP, Order Denying
Defendant Wilcox Memorial Hospital’s Renewed Motion for Judgment as a Matter
of Law.

- 40 -