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                                                           Electronically Filed
                                                           Supreme Court
                                                           SCWC-12-0000753
                                                           13-MAR-2018
                                                           08:22 AM




        IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                             ---o0o---


 LEAH CASTRO, individually and as PERSONAL REPRESENTATIVE
  of the ESTATE OF BRIANDALYNNE CASTRO, deceased minor,
              Respondent/Plaintiff-Appellee,

                                 vs.

 LEROY MELCHOR, in his official capacity; WANNA BHALANG,
 in her official capacity; TOMI BRADLEY, in her official
   capacity; STATE OF HAWAI#I; and HAWAI#I DEPARTMENT OF
    PUBLIC SAFETY, Petitioners/Defendants-Appellants,

                                 and

  AMY YASUNAGA, in her official capacity; ROBERTA MARKS,
 in her official capacity; KENNETH ZIENKIEWICZ, M.D., in
   his official capacity; and KEITH WAKABAYASHI, in his
   official capacity, Respondents/Defendants-Appellees.


                         SCWC-12-0000753

      CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
           (CAAP-12-0000753; CIV. NO. 08-1-0901)

                          MARCH 13, 2018
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               RECKTENWALD, C.J AND WILSON, J., WITH
             NAKAYAMA, J., CONCURRING SEPARATELY, AND
  McKENNA, J., WRITING SEPARATELY, WITH WHOM POLLACK, J., JOINS

                     OPINION OF RECKTENWALD, C.J.

                            I.   Introduction

          This case arises from a complaint filed by Respondent

Leah Castro (Castro), who had a stillbirth while she was

incarcerated.   Castro brought suit against Leroy Melchor, Wanna

Bhalang, Tomi Bradley (all in their official capacities), the

State of Hawai#i, and the Hawai#i Department of Public Safety

(HDPS) (together, “Petitioners”) for negligence, intentional

infliction of emotional distress, and negligent infliction of

emotional distress.     Castro asserted that Petitioners’ failure to

provide her with timely and adequate medical care led to the

stillbirth of her child, Briandalynne.

          After a bench trial, the Circuit Court of the First

Circuit ruled in Castro’s favor, awarding her $250,000 for

negligent infliction of emotional distress and $100,000 for loss

of filial consortium, and awarding $250,000 to Briandalynne’s

estate “for the loss of life itself and for all of the damages

that [Briandalynne] would have been entitled to had she been

alive, such as loss of enjoyment of life.”         The Intermediate

Court of Appeals (ICA) affirmed the circuit court’s decision.

Castro v. Melchor, 137 Hawai#i 179, 366 P.3d 1058 (App. 2016).


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            Petitioners’ application presents a question of first

impression to this court:        whether the estate of a viable fetus

can recover for loss of enjoyment of life, also known as

“hedonic,” damages.       We conclude that Briandalynne’s estate could

recover such damages against Petitioners, and that the record

supports the amount of the damages awarded.            Accordingly, we

affirm the ICA’s judgment on appeal.

                               II. Background

A.    Factual Allegations and Circuit Court Proceedings

            Castro filed a Complaint in her own capacity, and as

personal representative of the Estate of Briandalyne, in circuit

court on May 6, 2008, alleging assault and battery, negligence,

and intentional and negligent infliction of emotional distress

against the State of Hawai#i, the HDPS, and two correctional

officers at O#ahu Community Correctional Center (OCCC) in their

official capacities.

            The Complaint alleged that on June 30, 2007, while

Castro was an inmate at OCCC, she was forced to the ground, or

“taken down,” by correctional officers Debra Pimental and Ted

Choy Foo.     Castro was approximately seven months pregnant at the

time.    After the incident, Castro was transferred to the Women’s

Community Correctional Center (WCCC).          Castro developed problems

with vaginal bleeding, which she reported to staff at both OCCC


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and WCCC, but “was not provided with timely or adequate medical

care.”

          Castro alleged that the actions of the correctional

officers and the subsequent failure of medical personnel to

provide her with treatment caused the stillbirth of her eight-

month-old fetus, Briandalynne.       Briandalynne was delivered

stillborn on August 10, 2007, at the Kapi#olani Medical Center.

Available medical records indicated that Briandalynne’s death was

caused by “significant fetal stress” and “hypoxia.”           Castro

contended that the actions of correctional officers Pimental and

Choy Foo constituted assault and battery upon her and her unborn

fetus.

          Castro also contended that Pimental, Choy Foo, the

State, and HDPS were negligent because they “knew or should have

known” that Castro was pregnant, and that they “breached their

duty of reasonable care by failing to protect [Castro] and her

unborn child from harm.”      Castro additionally asserted that the

State and HDPS were liable for “negligent hiring, training,

supervision, and retention” of the correctional officers who

assaulted her.    Furthermore, she asserted that Officers Pimental,

Choy Foo, and other “responsible medical personnel” intentionally

inflicted emotional distress on her, and that the State and HDPS

negligently inflicted emotional distress on her as well.


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            Castro filed a First Amended Complaint on July 30,

2009, withdrawing her claims against the correctional officers.

In addition to the State and HDPS, Castro added as defendants

Leroy Melchor, Wanna Bhalang, Tomi Bradley, Amy Yasunaga, Roberta

Marks, and Keith Wakabayashi, all of whom were nurses in the

medical unit at OCCC, as well as Kenneth Zienkiewicz, a physician

at the medical unit at OCCC.        The individuals named in the First

Amended Complaint were each sued in their official capacities.

Castro raised claims of negligence against each of the

defendants, and claims of intentional and negligent infliction of

emotional distress against all defendants except the State and

HDPS.

            The defendants filed a motion for summary judgment,

arguing, inter alia, that there is no legal authority allowing

Castro to make a claim on behalf of the estate of a stillborn

fetus.    The defendants pointed to Hawai#i Revised Statutes (HRS)

§ 663-3 (Supp. 2009),1 “[d]eath by wrongful act[,]” to argue that


      1
            HRS § 663-3 (Supp. 1997) (“Death by wrongful act”) provides in
pertinent part:

            (a) When the death of a person is caused by the
            wrongful act, neglect, or default of any person, the
            deceased’s legal representative, or any of the persons
            enumerated in subsection (b), may maintain an action
            against the person causing the death or against the
            person responsible for the death. The action shall be
            maintained on behalf of the persons enumerated in
            subsection (b), except that the legal representative
            may recover on behalf of the estate the reasonable
                                                                 (continued...)

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“there must be injury to a person in order for a tort claim to

lie.”     Defendants argued that Briandalynne was not a person, as

contemplated by the statute; therefore, Castro could not make a

claim on her behalf.

             On May 13, 2011, the circuit court issued its order

granting in part and denying in part the motion for summary

judgment.2     The court granted the motion “as to all claims

against Defendants Yasunaga, Marks, Zienkiewicz[,] and

Wakabayashi,” as well as “to all claims brought by Plaintiff Leah

Castro as Personal Representative of the Estate of Briandalynne

Castro.”     The court denied the motion with respect to all other

claims.

             However, on October 14, 2011, the court issued an

amended summary judgment order sua sponte, reversing its previous

grant of summary judgment “with respect to all claims of

Plaintiff Leah Castro as Personal Representative of the Estate of

Briandalynne Castro.”       The court explained that its sua sponte

decision was based upon its belief that its prior analysis was in

error.3



      1
        (...continued)
             expenses of the deceased's last illness and burial.
      2
             The Honorable Rom A. Trader presided.
      3
            On October 24, 2011, this case was reassigned to Judge Karen T.
Nakasone, as Judge Trader had been assigned to the criminal division.

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          A bench trial began on February 27, 2012.           After the

evidentiary portion of the trial was completed, Castro filed a

memorandum regarding damages with the court.          Castro explained

that HRS § 663-3, the wrongful death statute, “governs recovery

by the decedent’s survivors[,]” and that HRS § 663-7,4 the

survival statute, “governs recovery for wrongful death by the

estate of a decedent.”     Castro asserted that because “[t]he

amount of recovery for the loss of life for the Estate of

Briandalynne Castro is ‘determined from the standpoint of the

deceased,’” according to Rohlfing v. Moses Akiona, Ltd., 45 Haw.

373, 381-83, 369 P.2d 96, 101 (1961), “the value of the life and

the loss of enjoyment of life of Briandalynne Castro are of the

nature and kind as of any other child born in our community[,]”

regardless of Castro’s status as an incarcerated inmate.            Castro

stated that the Estate of Briandalynne Castro’s damages claims

include all the damages that Briandalynne would have been

entitled to had she been alive, such as loss of enjoyment of life

and pain and suffering, before death occurred.          With respect to


     4
          HRS § 663-7 (1993) (“Survival of cause of action”) provides:

          A cause of action arising out of a wrongful act,
          neglect, or default, except a cause of action for
          defamation or malicious prosecution, shall not be
          extinguished by reason of the death of the injured
          person. The cause of action shall survive in favor of
          the legal representative of the person and any damages
          recovered shall form part of the estate of the
          deceased.


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Castro’s claim for negligent infliction of emotional distress,

Castro asserted that there was “ample evidence that a normally

constituted reasonable person would be unable to adequately cope

with the mental stress engendered by Defendants’ egregious

conduct” and the resulting stillbirth.         Castro further added that

the fact that she may not have been able to raise or provide for

her daughter while in prison “is irrelevant with respect to

[Castro’s] mental and emotional pain” caused by the stillbirth.

Castro requested that the court award her $400,000 for her

survivor claims, $250,000 for her emotional distress claims,

$600,000 for the Estate of Briandalynne Castro’s wrongful death

claim, and $800 in special damages for the estate’s cremation

expenses.

            Petitioners also submitted a post-trial memorandum

regarding damages.    Petitioners first argued that damages should

not be awarded because Castro “has not and cannot prove a causal

connection between any alleged negligence of the State Defendants

and the stillbirth.”     Petitioners further contended that any

award of damages to Castro “must be minimal” because her “conduct

at all times prior to the stillbirth was not the conduct of a

mother who wanted her baby.”      They additionally contended that

Castro’s incarceration meant that “[t]here is absolutely no

evidence that [Castro] would have been able to raise her child or


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have even been able to keep her child.”          Petitioners concluded by

arguing that “an award of $5,000 or less would be an adequate

amount to compensate [Castro] for a stillbirth which is not a

significant loss to her and for which she has not suffered any

emotional distress.”

           The court entered its Findings of Fact and Conclusions

of Law and Order on May 14, 2012, determining that the

Petitioners’ negligence was the legal cause of Briandalynne’s

death.   The court made the following Findings of Fact (FOFs)5

relevant to this appeal:
           18. On July 2,2007, Plaintiff was seen by OCCC nurse
           practitioner, Amy Yasunaga, for her first pre-natal
           visit. Ms. Yasunaga was the primary medical provider
           responsible for treatment and care of pregnant inmates
           at OCCC.

           19. Ms. Yasunaga ordered pre-natal vitamins, took
           Plaintiff’s vital signs, measured the fundus, listened
           to the fetus’s heart tones, and ordered an OBGYN
           consultation and an ultrasound for Plaintiff at
           Kapiolani Medical Center ("KMC" or "Kapiolani"). Ms.
           Yasunaga noted no abnormalities or concerns with
           Plaintiff’s pregnancy. Ms. Yasunaga noted Plaintiff’s
           last menstrual period was January 31,2007.

           20. On that same day, July 2,2007, OCCC physician,
           Kenneth Zienkiewicz, M.D., reviewed and approved Ms.
           Yasunaga’s orders for Plaintiff’s KMC OBGYN
           consultation and ultrasound.

           . . . .

           22. Both the KMC OBGYN consultation and ultrasound
           were never done, during the relevant month-long



     5
            Petitioners challenged certain FOFs in their appeal to the ICA.
Castro v. Melchor, 137 Hawai#i at 185, 366 P.3d at 1064. The FOFs reproduced
here either were not challenged, or were upheld by the ICA. Petitioners did
not further contest the circuit court’s FOFs in their application for
certiorari.

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       period, from the time Ms. Yasunaga issued the orders
       on July 2,2007, until Plaintiff’s transfer out of OCCC
       on August 2, 2007.

       23. Within several days of Plaintiff’s July 2, 2007
       pre-natal visit with Ms. Yasunaga, Plaintiff began
       experiencing vaginal bleeding. Plaintiff made four to
       five reports of her vaginal bleeding to various [Adult
       Corrections Officers (ACOs)], including ACO Hattie
       Reis, ACO Wanda Nunes, and ACO Reyetta Ofilas.

       24. All three ACOs informed the OCCC medical unit of
       Plaintiff’s vaginal bleeding and requested medical
       attention, but no medical care was provided. The
       medical unit’s response, relayed through the Nurse
       Defendants was, that if Plaintiff’s bleeding was not
       heavy enough to saturate a sanitary pad, and/or not
       accompanied by cramping, Plaintiff did not need to be
       sent to the medical unit.

       . . . .

       27. Up until Plaintiff’s transfer out of OCCC on
       August 2, 2007, Plaintiff did not receive any medical
       care for her four to five complaints of vaginal
       bleeding, and was never sent to the OCCC Medical Unit.

       28. During Plaintiff’s entire stay at OCCC, Plaintiff
       was on segregation status, from July 2 to August 2,
       2007. The pertinent DPS and OCCC Policies and
       Procedures for medical care for segregated inmates
       . . . were not followed, and no medical staffer ever
       checked on, or communicated with Plaintiff, about her
       bleeding complaints. Nor was Plaintiff ever brought
       to the OCCC Medical Unit for evaluation of her
       complaints.

       . . . .

       30. Plaintiff was transferred to WCCC on August 2,
       2007. According to WCCC nurse Jennifer Simeona, who
       conducted Plaintiff’s intake on that date, Plaintiff’s
       Interfacility Transfer Form from OCCC, did not contain
       any information to let Nurse Simeona know, that the
       KMC OBGYN evaluation and ultrasound ordered on July 2,
       2007, were still outstanding and never done. Any
       outstanding medical orders should have been included
       on the form.

       . . . .

       34. The WCCC midwife could not detect any fetal heart
       tones from Plaintiffs fetus. Plaintiff “broke down”
       crying but tried to not lose hope. The midwife
       ordered that Plaintiff be immediately transported to
       KMC.

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       35. Plaintiff was taken to KMC via emergency
       transport, on that same date, August 10, 2007, where
       an ultrasound confirmed that the fetus was dead.
       Labor was induced, and Plaintiff’s fetus, Briandalynne
       Castro . . . was delivered stillborn on August 11,
       2007.

       36. On August 14,2007, an autopsy of [Briandalynne]
       was performed in the usual course by Jeffrey Killeen,
       M.D. (“Dr. Killeen”), KMC Director of Pathology.

       37. Dr. Killeen’s autopsy findings and conclusions
       indicated, inter alia, that the pregnancy was “term or
       near-term”, [the stillbirth] appeared to be related to
       “intrauterine events occurring at the time of vaginal
       bleeding”, and that, more likely than not, death was
       related to a placental abruption. A placental
       abruption, is a separation of the placenta from the
       uterus, causing a disconnect between the maternal
       blood supply and placental nutrition from the maternal
       circulation.

       38. Dr. Killeen’s autopsy findings also confirmed
       that [Briandalynne] had no congenital or developmental
       abnormalities.

       39. On or around October 22, 2008, Dr. Killeen
       conducted further evaluation and testing to determine
       the approximate date of [Briandalynne]’s death and
       supplemented his autopsy report with an Addendum
       containing his findings.

       40. As a result of this further examination of the
       fetus, placenta, and multiple organs, Dr. Killeen
       opined that “the time interval between fetal death and
       delivery is estimated to be greater than 96 hours,
       more likely 7 days or more, and less than 14 days.[”]
       Dr. Killeen’s findings, placed the date of death,
       within a reasonable degree of medical probability, as
       between July 29, 2007 and August 4, 2007. Dr. Killeen
       also indicated that the age of the fetus, was 35 to 37
       weeks of gestation

       . . . .

       56. The evidence established that [Briandalynne had]
       no congenital or development abnormalities. Despite
       the incarcerated status of her mother,[Briandalynne’s]
       life and her loss of enjoyment of life, are of the
       nature and kind of any other infant.

       57. An award of damages against Defendant State, in
       the amount of $250,000.00 to the Estate of
       Briandalynne Castro, is fair and appropriate, for the
       State’s share of the Estate’s total damages.

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          The court also made the following relevant Conclusions

of Law (COLs):
          74. Under Hawaii’s wrongful death statute, a parent
          of a stillborn viable fetus, such as Plaintiff herein,
          is entitled to sue for the wrongful death of the
          fetus. Wade v. U.S., 745 F. Supp. 1573, 1579 (D. Haw.
          1990).

          . . . .

          81. Based on all the facts and circumstances, an
          award of damages against Defendant State, in the
          amount of $350,000.00 to Plaintiff individually
          ($250,000.00 for NIED and $100,000.00 for loss of
          filial consortium), is fair and appropriate, for the
          State’s share of Plaintiff’s total damages.

          82. The Estate’s claim, under HRS § 663-7, is the
          cause of action and recovery that [Briandalynne] would
          have been entitled to at death for the injuries caused
          by Defendant State's negligence. Ozaki v. Assn of
          Apt. Owners, 87 Hawai#i 273, 288, 954 P.2d 652, 667
          (App. 1998), aff’d in part and reversed in part on
          other grounds, 87 Hawai#i 265,954 P.2d 644 (1998).
          The Estate’s damages include damages for the loss of
          enjoyment of life, or for the value of life itself,
          measured separately from the economic productive value
          that the deceased would have had. Montalvo v. Lapez,
          77 Hawai#i 282, 284 n.2, 884 P.2d 345, 347 n.2 (1994).

          83. The Estate’s damages include the value for the
          loss of life itself and for all of the damages that
          [Briandalynne] would have been entitled to had she
          been alive, such as loss of enjoyment of life. The
          evidence established that the [Briandalynne had] no
          congenital or development abnormalities. Despite the
          incarcerated status of her mother, [Briandalynne]’s
          life and her loss of enjoyment of life, are of the
          nature and kind of any other infant. An award of
          damages against Defendant State, in the amount of
          $250,000.00 to the Estate of Briandalynne Castro, is
          fair and appropriate, for the State’s share of the
          Estate’s total damages.

          The court thus entered final judgment in Castro’s favor

and awarded her $350,000 individually and $250,000 as the

representative of Briandalynne’s estate.




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B.     Petitioners’ Appeal to the ICA

             Petitioners appealed to the ICA, arguing, inter alia,

that the circuit court’s award of damages to the estate of the

fetus was error and that the damages awarded to both Castro and

Briandalynne’s estate were speculative and improper.

             On January 29, 2016, the ICA issued its Published

Opinion affirming the circuit court’s judgment.             Castro v.

Melchor, 137 Hawai#i at 182, 366 P.3d at 1061.

             The ICA first considered the HRS § 663-3 wrongful death

action.     With respect to whether a wrongful death claim may be

brought on behalf of a stillborn, viable fetus, the ICA noted

that Hawaii’s appellate courts have not previously addressed the

issue, and that the legislative history of HRS § 663-3 does not

reveal whether or not the Legislature intended the statute to

apply to unborn, viable fetuses.            Id. at 186, 366 P.3d at 1065.

According to the ICA, “only six states--California, Florida,

Iowa, Maine, New Jersey, and New York--prohibit wrongful death

claims from being brought on behalf of unborn children[,]” while

“forty-one states and the District of Columbia permit wrongful

death actions to be brought on behalf of unborn, viable fetuses.”

Id.    The ICA explained that “thirty-five jurisdictions first

recognized such a claim by judicial decision, while fourteen

states now expressly allow such a claim by statute.”               Id. at 187,


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366 P.3d at 1066.       The ICA stated that it found “compelling

reasons to join this overwhelming majority.” Id.

             The ICA rejected Petitioners’ argument that it would be

inconsistent to include fetuses within the definition of “person”

in HRS § 663-3 when the Hawai#i Supreme Court has held that a

fetus is not a person in the Hawai#i Penal Code.             Id.   The ICA

rejected this argument, noting that “Hawai#i is one of only nine

states that still apply the ‘born alive’ rule and have not

amended their criminal homicide statutes to include unborn

children as victims[,]” and that seven of those nine states--

Connecticut, Delaware, New Hampshire, New Mexico, Oregon,

Vermont, and Washington--“allow a cause of action for the

wrongful death of an unborn, viable fetus.”             Id. at 188-89, 366

P.3d at 1067-68.       The ICA thus held that “the existence of the

‘born alive’ rule in a state’s penal code clearly does not

foreclose the existence of a cause of action for the wrongful

death of a viable fetus.”         Id. at 189, 366 P.3d at 1068.        The ICA

reasoned that this was logical based “on the well-established

principle that, while civil causes of action are remedial in

nature and therefore are generally construed liberally, criminal

statutes are construed strictly and in favor of the accused.”

Id.




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           The ICA was persuaded by policy considerations that the

majority jurisdictions relied on–-“the remedial nature and

purposes of the wrongful death remedy, and the injustice in

allowing a tortfeasor to escape liability by inflicting greater

harm.”   Id. at 190, 366 P.3d at 1069.       The ICA held:
           Pursuant to Hawai#i precedent, remedial statutes are
           to be liberally interpreted. Kalima v. State, 111
           Hawai#i 84, 100, 137 P.3d 990, 1006 (2006).
           “Generally, remedial statutes are those which provide
           a remedy, or improve or facilitate remedies already
           existing for the enforcement of rights and the redress
           of injuries.” Id. (citations and internal quotation
           marks omitted). Inasmuch as “[t]he purpose of damages
           in wrongful death and survival statutes is
           compensation for loss, not punishment,” and HRS §
           663–3 creates a statutory right for non-dependent
           relatives to sue for wrongful death, a right which did
           not exist under common law, we conclude that this
           statute is remedial in nature. Greene v. Texeira, 54
           Haw. 231, 505 P.2d 1169, 1170 (1973).

Id. at 189-90, 366 P.3d at 1068-69.

           The ICA further noted that, “in Hawai#i, a child who is

subsequently born alive may recover damages for negligently

inflicted prenatal injuries.”       Id. at 190, 366 P.3d at 1069

(citing Omori v. Jowa Haw. Co., Ltd., 91 Hawai#i 157, 161–62, 981

P.2d 714, 718–19 (App.1999), aff’d as modified, 91 Hawai‘i 146,

981 P.2d 703 (1999)).     Thus, it held that allowing a cause of

action in a case where a viable fetus is injured but the child is

born, while foreclosing a cause of action where the unborn child

dies before birth, “would lead to the absurd and illogical result

that greater harm results in a better chance of immunity.”             Id.

at 190-91, 366 P.3d at 1069-70.

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          The ICA turned to HRS § 663-7 survival actions in its

discussion of damages.     Id. at 198, 366 P.3d at 1077.         It noted

in a footnote that not all states have distinct wrongful death

statutes and survival statutes, and acknowledged that the varying

forms of statutes and remedies and the evolving jurisprudence

made generalizations about the application of survival-of-claim

statues to claims on behalf of viable, unborn fetuses much more

complicated.   Id. at 198 n.17, 366 P.3d at 1077 n.17.           However,

it stated that seventeen states and the District of Columbia

recognized at least some sort of personal injury claims that

survive the death of the viable, unborn fetus.          Id.   It then

affirmed the trial court’s award of loss of life damages to

Briandalynne’s estate.     While the ICA did not make an explicit

ruling, by affirming the damages award, the ICA implicitly held

that the estate of a viable, unborn fetus may bring a survival

action pursuant to HRS § 663-7.

          The ICA rejected Petitioners’ argument that Castro was

foreclosed from being awarded damages under HRS § 663-7, the

survival statute, and was limited to damages under HRS § 663-3,

the wrongful death statute.      Id. at 199, 366 P.3d at 1078.         The

ICA explained that although “Castro did not reference HRS § 663-7

in her complaint, a plaintiff’s failure to cite the statutory

basis for her claim does not automatically render the complaint


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defective or insufficient.”      Id.     Quoting our decision in In re

Genesys Data Technologies, Inc., 95 Hawai#i 33, 41, 18 P.3d 895,

903 (2001), the ICA stated that our “rules of notice pleading

require that a complaint set forth a short and plain statement of

the claim that provides defendant with fair notice of what the

plaintiff’s claim is and the grounds upon which the claim rests”

and that “[p]leadings must be construed liberally.”           Id.

(internal citations omitted).       According to the ICA, “a liberal

reading of Castro’s complaint would put the State on notice” that

Castro was bringing “a claim on behalf of Briandalynne’s estate,”

that “the claim arose out of the State’s negligence resulting in

Briandalynne’s death,” and that “she would be pursuing general

damages in an amount to be proven at trial, which could include

damages for the loss of enjoyment of life.”          Id. at 200, 366 P.3d

at 1079.   Thus, the ICA held that Castro’s complaint “was not

insufficient” because it “reasonably informed the State of what

Castro’s claims were, their basis, and what the State would have

to defend against.”     Id.

           The ICA further held that there was sufficient evidence

to support an award of damages to Briandalynne’s estate.            Id.

The ICA pointed to the testimony of a doctor who examined Castro,

who stated that “he could not find any ‘gross congenital

anomalies’” nor “abnormalities of any kind” during his


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examination of Briandalynne as sufficient evidence to support the

court’s finding that the fetus had no congenital or development

abnormalities.      Id. at 201, 366 P.3d at 1080.        Finally, the ICA

rejected Petitioners’ argument challenging the award of $100,000

to Castro for loss of filial consortium and the award of $250,000

for emotional distress.       Id. at 201-02, 366 P.3d at 1080-81.

            The ICA entered its Judgment on Appeal pursuant to its

Opinion on February 29, 2016.

                        III. Standards of Review

A.    Findings of Fact (FOF)/Conclusions of Law (COL) - Civil

            “In this jurisdiction, a trial court’s FOFs are subject

to the clearly erroneous standard of review.            An FOF is clearly

erroneous when, despite evidence to support the finding, the

appellate court is left with the definite and firm conviction

that a mistake has been committed.”          Chun v. Bd. of Trs. of the

Emp. Ret. Sys. of State of Hawai#i, 106 Hawai#i 416, 430, 106 P.3d

339, 353 (2005) (internal quotation marks, citations, and

ellipses omitted) (quoting Allstate Ins. Co. v. Ponce, 105

Hawai#i 445, 453, 99 P.3d 96, 104 (2004)).
                  A COL is not binding upon an appellate court and
            is freely reviewable for its correctness. [The
            appellate court] ordinarily reviews COLs under the
            right/wrong standard. Thus, a COL that is supported
            by the trial court's FOFs and that reflects an
            application of the correct rule of law will not be
            overturned. However, a COL that presents mixed
            questions of fact and law is reviewed under the
            clearly erroneous standard because the court's


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            conclusions are dependent upon the facts and
            circumstances of each individual case.

Chun, 106 Hawai#i at 430, 106 P.3d at 353 (internal quotation

marks, citations, and brackets in original omitted) (quoting

Ponce, 105 Hawai#i at 453, 99 P.3d at 104).

B.    Damages

            “We shall not disturb the findings of the trial court

on the issue of damages . . . unless we find that the measure of

damages was clearly erroneous[.]”          Viveiros v. State, 54 Haw.

611, 614, 513 P.2d 487, 489 (1973).

C.    Statutory Interpretation

            Questions of statutory interpretation are questions of
            law to be reviewed de novo under the right/wrong
            standard.

            Our statutory construction is guided by the following
            well established principles:

            Our foremost obligation is to ascertain and give
            effect to the intention of the legislature, which is
            to be obtained primarily from the language contained
            in the statute itself. And we must read statutory
            language in the context of the entire statute and
            construe it in a manner consistent with its purpose.

            When there is doubt, doubleness of meaning, or
            indistinctiveness or uncertainty of an expression used
            in a statute, an ambiguity exists.

            In construing an ambiguous statute, the meaning of the
            ambiguous words may be sought by examining the
            context, with which the ambiguous words, phrases, and
            sentences may be compared, in order to ascertain their
            true meaning. Moreover, the courts may resort to
            extrinsic aids in determining legislative intent. One
            avenue is the use of legislative history as an
            interpretive tool.

            The [appellate] court may also consider the reason and
            spirit of the law, and the cause which induced the
            legislature to enact it to discover its true meaning.


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Lingle v. Hawai#i Gov’t Emp. Ass’n, AFSCME, Local 152, AFL-CIO,

107 Hawai#i 178, 183, 111 P.3d 587, 592 (2005) (internal

quotation marks, brackets and ellipses omitted) (quoting Guth v.

Freeland, 96 Hawai#i 147, 149-50, 28 P.3d 982, 984-85 (2001)).

                              IV.   Discussion

            Petitioners present two questions in their application

for certiorari:
            A.    Whether the award of loss of enjoyment of life
                  damages for a stillborn fetus was error.

            B.    Whether the award of $250,000 damages to the
                  estate of Briandalynne Castro was error when
                  there was no evidence presented to justify that
                  monetary amount.

            This case thus presents the narrow question of whether

the estate of a stillborn fetus may recover loss of enjoyment of

life damages under Hawaii’s survival statute, HRS § 663-7.6

            “Hedonic” damages are damages “for the loss of

enjoyment of life, or for the value of life itself, as measured

separately from the economic productive value that an injured or


      6
            Under Hawaii’s survival statute, HRS § 663-7, the legal
representative of a decedent’s estate may recover damages on behalf of the
decedent’s estate. Under Hawaii’s wrongful death statute, HRS § 663-3,
specified relatives of a decedent can bring a wrongful death action against
the person responsible for causing the decedent’s death.

            We do not address the circuit court’s award of damages for loss of
filial consortium pursuant to HRS § 663-3, the wrongful death statute, because
Petitioners did not challenge this holding of the ICA in their application for
writ of certiorari. See Hawai#i Rules of Appellate Procedure Rule 40.1(d)(1)
(“Questions not presented according to this paragraph will be disregarded.”).

            However, we discuss the legislative history of both statutes
below, because the survival statute, HRS § 663-7, was implemented as part of a
bill that revised and expanded the wrongful death statute, HRS § 663-3.

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deceased person would have had.”         Montalvo v. Lapez, 77 Hawai#i

282, 284 n.2, 884 P.2d 345, 347 n.2 (1994) (quoting Black’s Law

Dictionary 391 (6th ed. 1990)).       “Many tortious acts--

particularly involving negligence . . . inflict on the victim

what is loosely termed a ‘loss of the enjoyment of life,’ or a

loss of life’s pleasures, or the incapacity to lead a normal

life, the inability to enjoy one’s family, or games, sports,

hobbies, avocational skills, and the like.”          2 Stuart M. Speiser

et al., The American Law of Torts § 8:20 (2014).

          Petitioners contend that the circuit court erred in (1)

allowing a viable fetus to recover hedonic damages, and (2)

awarding $250,000 in damages when there was no evidence regarding

the loss of enjoyment of life for Briandalynne, had she lived. In

response, Castro argues that the damages award was appropriate

because “[t]here is no reason why the amount of general damages

for the loss of a life and the loss of a person’s enjoyment of

life in the case of a stillborn child cannot be determined” using

the same factors that courts consider when an infant “is a victim

of wrongful death.”     Castro argues that appellate courts will not

disturb the findings of the trial court on damages unless they

are clearly erroneous, and that Petitioners’ have not adduced any

evidence or authority to support such a contention.




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            We conclude that the relevant statutes, applicable case

law, and policy considerations, support Castro’s contention that

the estate of an unborn, viable fetus is able to recover hedonic

damages.    We also find that there was sufficient evidence to

support the circuit court’s damages award.            Accordingly, we

conclude that the ICA did not err in affirming the circuit

court’s award of damages for loss of enjoyment of life.

A.    The circuit court did not err in allowing a viable fetus to
      recover hedonic damages.

            Hedonic damages are “indisputably” recoverable in

Hawai#i, as “HRS § 663-8.5(a) (Supp. 1992)7 provides that

noneconomic damages which are recoverable in tort actions include

damages for pain and suffering, mental anguish, disfigurement,

loss of enjoyment of life, loss of consortium, and all other

nonpecuniary losses or claims.”          Montalvo, 77 Hawai#i at 301, 884

P.2d at 364 (brackets and internal quotation marks omitted)

(emphasis in original).       Children may recover hedonic damages for

injuries sustained in the womb.          See Omori,91 Hawai#i at 162, 981

P.2d at 719.



      7
            HRS 663-8.5(a) (Supp. 1992) (“Noneconomic damges; defined”)
provides:

            (a) Noneconomic damages   which are recoverable in tort
            actions include damages   for pain and suffering, mental
            anguish, disfigurement,   loss of enjoyment of life,
            loss of consortium, and   all other nonpecuniary losses
            or claims.

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            There is no question, and Petitioners do not dispute,

that a decedent’s estate can recover damages for loss of

enjoyment of life under the survival statute, HRS § 663-7, which

provides:
            A cause of action arising out of a wrongful act,
            neglect, or default, except a cause of action for
            defamation or malicious prosecution, shall not be
            extinguished by reason of the death of the injured
            person. The cause of action shall survive in favor of
            the legal representative of the person and any damages
            recovered shall form part of the estate of the
            deceased.

HRS § 663-7; see also Ozaki, 87 Hawai#i at 288, 954 P.2d at 667

(holding that under HRS § 663-7, the estate of murdered tenant

could assert loss of enjoyment of life claim that she had at time

of her death).

            Rather, Petitioners argue that it is inappropriate to

award hedonic damages to the estate of a viable fetus.               In

support, Petitioners quote a leading treatise on personal injury,

suggesting that hedonic damages are inappropriate in situations

in which the decedent was killed instantly:           “[i]n a survival

action, a decedent’s estate generally may be allowed to recover

hedonic damages for the time between injury and death.”

Petitioners also argue that there must be evidence of how a

decedent enjoyed life, and a fetus cannot suffer hedonic damages,

since the fetus has not had time to develop the ability to have

loss of enjoyment of life damages.



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            Petitioners’ arguments fail for four reasons.          First,

the legislative history supports a finding that the legislature

did not intend to exclude a viable fetus from an HRS § 663-7

survival action, but rather intended that recovery be as broad as

possible.    This is consistent with the well-established principle

that remedial statutes should be liberally construed.            Kalima v.

State, 111 Hawai#i 84, 100, 137 P.3d 990, 1006 (2006).           Second,

Hawai#i case law is unique because it does not require the

decedent to have actually experienced the loss of enjoyment of

life to recover hedonic damages.         Third, disallowing hedonic

damages in this situation would not adequately compensate the

injured party.    Fourth, children may recover hedonic damages for

injuries sustained in the womb; accordingly, disallowing hedonic

damages to viable, unborn fetuses under HRS § 663-7 would provide

perverse incentives to the tortfeasor.

            In interpreting a statute, we start with our foremost

obligation: to ascertain and give effect to the intention of the

legislature.    See Morgan v. Planning Dep’t, Cty. of Kauai, 104

Hawai#i 173, 179, 86 P.3d 982, 988 (2004).         Because it is not

clear from the plain language of the statute whether HRS § 663-7

would apply to a viable, unborn fetus, we must look at the

statute’s legislative history.       See id.    In reviewing the

legislative history of HRS § 663-7, the survival statute, there


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is nothing to suggest that the legislature intended to exclude a

viable fetus from an HRS § 663-7 survival action.           Rather, the

legislature expressly provided that recovery under the survival

statute be “broad” and endorsed this court’s broad judicial

interpretation of the wrongful death statute, HRS § 663-3             which

was revised as part of the same bill in which HRS § 663-7, the

survival statute, was implemented.

          House Bill 588 of 1955 revised the 1923 wrongful death

statute, HRS § 663-3, and implemented for the first time the

survival statute, HRS § 663-7.       In relevant part, the House

Judiciary Committee stated as follows:
          1. The purpose of this bill is to broaden the right of
          action and the extent of recovery in wrongful death
          suits.
                                  . . . .

          3. This bill, as amended, broadens the wrongful death
          statute by permitting a deceased person’s spouse,
          children, father, mother, or dependents to recover for
          the wrongful death of the deceased. . . .

          The right of action under the present wrongful death
          action is based on the archaic principal of
          dependency. The provisions of this bill are
          consistent with the theory of the majority of the
          statutes in the United States. This bill permits
          recovery for not only pecuniary losses but also for
          loss of love and affection, including (1) loss of
          society, companionship, comfort, consortium or
          protection, (2) loss of marital care, attention,
          advice or counsel, (3) loss of filial care or
          attention or, (4) loss of parental care, training,
          guidance or education.

          4. The provisions of this bill follow, in substance,
          the doctrine of the case of Gabriel [v]. Margah, 37
          Haw. 571, which extended the interpretation of the
          existing statutory right of action.

          5. This bill also provides for a survival statute.   In


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           the majority of the states in the United States, broad
           survival statutes have been passed to permit the
           survival of right of action arising out of a tort
           despite the death of the wrongdoer or of the injured
           person.

           Under the common law, death terminated the right of
           action arising out of a tort. This archaic doctrine
           has caused untold hardship and injustice.

           The present Territorial statutes are not broad enough
           to cover all of the hardship situation which might
           arise and your Committee feels that this bill will
           help fill a void in the tort laws of the Territory.

H. Stand. Comm. Rep. No. 581, in 1955 House Journal, at 772-73

(emphasis added).

           The spirit and intent of the law was that both the

wrongful death statute, HRS § 663-3, and the survival statute,

HRS § 663-7, be broad remedial statutes.         The legislature

expressly provided that it was adopting a survival statute

because the majority of the states had passed “broad” survival

statutes, and that the tort laws of the Territory were “not broad

enough.”   Id. at 773.

           Regarding the amendments to HRS §663-3, the wrongful

death statute, the legislature explained that it was adopting and

codifying the Hawai#i Supreme Court’s broad remedial

interpretation of the wrongful death statute in Gabriel, 37 Haw.

571.

           The Gabriel court explained that Hawai#i adopted a

common law cause of action in 1860 by which a husband or wife

could recover for the wrongful death of his or her spouse, and


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that in 1905, the Hawai#i Supreme Court held that a father could

recover for the death of his minor child .         Id. at 575-77 (citing

Kake v. C.S. Horton, 2 Haw. 209 (1860); Ferreira v. Honolulu R.

T. & L. Co., 16 Haw. 615 (1905)).         The Gabriel court explained

that in Hall v. Kennedy, 27 Haw. 626 (1923), the court held that

a father could not recover for the death of an adult son upon

whom the father was dependent for support.         Id. at 579.     In

response to Hall, the legislature enacted the wrongful death act

of 1923, which provided that any person dependent on the deceased

person could maintain an action for damages against the person

causing the death.    Id.

          In Gabriel, parents sought to recover for the death of

their minor child, and the defendants argued that the 1923

statute had superseded the common law right of recovery for

wrongful death, and that only those dependent on the deceased

could recover under the statute.         Id. at 572.   The Gabriel court

held that the statute had not superseded the common law

right--and thus that the parents could recover for the death of

their minor child.    Id. at 582.

          Thus, the 1955 revision of HRS § 663-3--the wrongful

death statute--adopted and codified the Hawai#i Supreme Court’s

broad remedial interpretation of the statute.          The legislature

clarified that anyone in specified relationships with the


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deceased, regardless of dependency, could recover under the

statute, and that anyone dependent on the deceased, regardless of

relationship, could recover under the statute.          HRS § 663-3.

           Because the legislature endorsed and adopted the

Hawai#i Supreme Court’s broad interpretation of HRS § 663-3, and

because the survival action, HRS § 663-7, was implemented as part

of the same act as the legislative revision to HRS § 663-3, it

follows that the intent of the legislature was to provide for

broad recovery under both statutes, and to endorse broad judicial

interpretation of both statutes.         Accordingly, interpreting HRS §

663-7 to provide recovery for viable, unborn fetuses is

consistent with the legislature’s intent to provide broad

recovery under the wrongful death and survival statutes.

           Construing HRS § 663-7 to provide recovery for viable,

unborn fetuses is also consistent with our guiding principle that

remedial statutes should be liberally construed.           See Kalima, 111

Hawai#i at 100, 137 P.3d at 1006.        HRS § 663-7 is a remedial

statute.   See Greene, 54 Haw. at 236, 505 P.2d at 1173 (“Our

interpretation of HRS § 663-7 recognizes that the aim of the

statutes in this area of the law is compensation for loss[.]”)

“This court has stated that remedial statutes should be liberally

construed to suppress the perceived evil and advance the enacted

remedy and has disfavored narrow interpretations that impede


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rather than advance the remedies provided by such statutes.”

Kalima, 111 Hawai#i at 100, 137 P.3d at 1006 (internal citations

omitted).8

             Second, we reject Petitioners’ arguments that a

decedent must experience consciousness of her loss of enjoyment

of life and that there must be evidence of how a decedent enjoyed



      8
            Justice McKenna argues that our common law provides that whether
wrongful death liability exists is an issue to be decided by the legislature.
Opinion of McKenna, J. at 38 (citing Lealaimatafao v. Woodward-Clyde
Consultants, 75 Haw. 544, 551, 867 P.2d 220, 224 (1994)). However,
Lealaimatafao makes clear that this court’s obligation is to ascertain and
give effect to the intention of the legislature. 75 Haw. at 551, 867 P.2d at
224. Because the intent of the legislature is to permit broad recovery under
the survival statute, we disagree with Justice McKenna that the ICA erred by
attempting to “create” liability under common law. Opinion of McKenna, J. at
38. Justice McKenna also cites for support to the Restatement (Second of
Torts) § 869 (1979), which provides:

             (1) One who tortiously causes harm to an unborn child
             is subject to liability to the child for the harm if
             the child is born alive.
             (2) If the child is not born alive, there is no
             liability unless the applicable wrongful death statute
             so provides.

Opinion of McKenna, J. at 37 (citing Restatement (Second) of Torts, § 869).


             However, the comments to § 869 further provide:

             If the child is not born alive, there may still be the
             possibility of an action for its wrongful death,
             brought by the proper person under the wrongful death
             statute of the particular jurisdiction. Whether this
             action can be maintained will depend upon the language
             of the applicable statute and its construction by the
             court in determining whether the statute is intended
             to create the cause of action. The language of the
             statutes varies and no general rule can be stated for
             their construction.

Restatement (Second) of Torts, § 869, cmt. f.




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life, as we are persuaded by the ICA’s decision in Polm v. Dep’t

of Human Servs., 134 Hawai#i 305, 339 P.3d 1106, 2014 WL 7390879

at *21 (App. 2014).     There, the ICA affirmed the circuit court’s

order finding the Department of Human Services liable for damages

to a one-year-old child’s estate.        Id.   The defendant had argued

that “since [the Decedent] lost consciousness almost immediately

and there was no evidence of how he had enjoyed life or how he

would have enjoyed life, only minimal damages could be awarded

for loss of enjoyment of life.”       Id. (internal quotation marks

omitted).    The ICA rejected these arguments and awarded damages

under HRS § 663–7.    Id.   Other jurisdictions have also held that

consciousness is not required to recover loss of enjoyment of

life damages.    See Holston v. Sisters of Third Order of St.

Francis, 165 Ill. 2d 150, 650 N.E.2d 985 (1995)(holding that

damages may be awarded for the loss of enjoyment of life to a

disabled person even if she was unaware of her loss); Flannery v.

United States, 171 W. Va. 27, 33, 297 S.E.2d 433, 439 (1982)

(holding comatose patient could recover loss of enjoyment of life

damages “even though he may not be able to sense his loss of

enjoyment of life”).

            Third, disallowing hedonic damages in this situation

would not adequately compensate Briandalynne’s estate.            Under HRS

§ 663-8.5(a), Briandalynne’s estate could recover damages for


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“pain and suffering, mental anguish, disfigurement, loss of

enjoyment of life, loss of consortium, and all other nonpecuniary

losses or claims.”       However, it is unclear to what extent

Briandalynne could have recovered for pain and suffering, since

our case law requires consciousness.           See Brown v. Clark Equip.

Co., 62 Haw. 530, 537, 618 P.2d 267, 272 (1980) (“Rohlfing . . .

established the rule that recovery for pain and suffering

depended on the existence of conscious pain and suffering.”)

(emphasis added).       Accordingly, hedonic damages may be the only

way to appropriately compensate Briandalynne’s estate for her

injury.

             Fourth and finally, to not allow hedonic damages in

this case would create perverse incentives for the tortfeasor.

In Omori, the ICA held that children may recover hedonic damages

for injuries sustained in the womb.           91 Hawai#i at 162, 981 P.2d

at 719.     Policy considerations counsel against barring recovery

of hedonic damages for the death of a viable, unborn fetus under

the survival statute, but allowing a child who is tortuously

injured while in the womb to bring a negligence claim for damages

after birth.      See Ozaki, 87 Hawai#i at 289, 954 P.2d at 668.               In

Ozaki, the ICA held that the estate of an adult decedent could

recover damages for loss of enjoyment of life under HRS § 663-7.

Id.    In so holding, the ICA relied on the concurring opinion in


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Jones v. Shaffer:
          A person tortiously injured, and permanently disabled
          in consequence, may recover for the diminished joy of
          living. . . . If this view does not hold in wrongful
          death cases, our law gives off unfortunate incentives.
          We invite the tortfeasor who runs over a pedestrian to
          back up and do it again and be sure his victim is
          dead.

573 So. 2d 740, 746 (Miss. 1990) (concurring opinion).

          Thus, based on the survival statute’s legislative

history, Hawai#i precedent, and policy considerations, we hold

that Briandalynne’s estate was properly allowed to recover

damages for loss of enjoyment of life.

          This holding would not subject to civil liability a

woman carrying a fetus whose negligence caused the viable fetus

to die in utero or who exercised her rights under the law to

terminate a pregnancy through abortion.

          Regarding negligence, the question of whether recovery

is possible under HRS § 663-7 and whether a legal duty of care

exists are two separate inquiries.        HRS § 663-7 does not define

against whom a decedent’s estate may sue, and its legislative

history does not manifest intent on the part of the legislature

to impose a legal duty of care on particular defendants.

Accordingly, the existence of a legal duty of care for recovery

under HRS § 663-7 is a question of law for the courts to decide.

Ah Mook Sang v. Clark, 130 Hawai#i 282, 290, 308 P.3d 911, 919

(2013).

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           In considering whether to impose a duty of reasonable
           care on a defendant, we recognize that duty is not
           sacrosanct in itself, but only an expression of the
           sum total of those considerations of policy which lead
           the law to say that the particular plaintiff is
           entitled to protection. Legal duties are not
           discoverable facts of nature, but merely conclusory
           expressions that, in cases of a particular type,
           liability should be imposed for damage done. In
           determining whether or not a duty is owed, we must
           weigh the considerations of policy which favor the
           appellants’ recovery against those which favor
           limiting the appellees’ liability.

Id. at 291, 308 P.3d at 920.

           Based on significant policy considerations, we agree

with the jurisdictions that have held as a matter of law that a

pregnant woman does not owe a legal duty of care to the fetus she

carries.   See Remy v. MacDonald, 440 Mass. 675, 682-83, 801

N.E.2d 260, 266-67 (2004) (holding that a mother did not owe a

legal duty of care to her unborn fetus, noting “inherent and

important differences between a fetus, in utero, and a child

already born” and that “[r]ecognizing a pregnant woman’s legal

duty of care . . . to her unborn child would present an almost

unlimited number of circumstances that would likely give rise to

litigation”); Stallman v. Youngquist, 125 Ill. 2d 267, 279-80,

531 N.E.2d 355, 361 (1988)(holding no legal duty, and noting

“[j]udicial scrutiny into the day-to-day lives of pregnant women

would involve an unprecedented intrusion into the privacy and

autonomy of the citizens of this State”); Chenault v. Huie, 989

S.W.2d 474, 476-77 (Tex. App. 1999) (finding no legal duty and



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stressing “[t]he extent of interference with a woman’s legal

rights that could occur as a result of imposing a legal duty to

the fetus”).

            Similarly, a holding that Briandalynne’s estate can

recover loss of enjoyment of life damages under HRS § 663-7 would

not affect or interfere with a woman’s right under the law to

terminate a pregnancy through abortion.           Other jurisdictions

which have interpreted wrongful death or survival statutes to

provide recovery for the death of a viable, unborn fetus have

made clear that the holding would not affect abortion rights.

See, e.g., Strzelczyk v. Jett, 264 Mont. 153, 158, 870 P.2d 730,

733 (1994) (Gray, J., concurring) (making clear, in its holding

that a wrongful death statute covered an unborn fetus that, “this

is not an abortion case or a case related in any way to a woman's

constitutional right to privacy and to an abortion . . . The

termination of a pregnancy by abortion is an intentional,

consensual act by a woman and her physician which the law

specifically allows” while a wrongful death action is based on

negligence).

B.    The circuit court’s award of $250,000 in damages to
      Briandalynne’s estate was not in error.

            In their second question presented, Petitioners argue

that the circuit court erred in awarding $250,000 in damages to

Briandalynne’s estate “when there was no evidence presented to

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justify that monetary amount.”       For support, Petitioners cite to

Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., in

which we held that “[i]t is well-settled that all tort claims

require that damages be proven with reasonable certainty.”             116

Hawai#i 277, 292, 172 P.3d 1021, 1036 (2007).

           Generally, we do not disturb the findings of the trial

court on the issue of damages absent a clearly erroneous measure

of damages.   See Viveiros, 54 Haw. at 614, 513 P.2d at 489;

Johnson v. Sartain, 46 Haw. 112, 114, 375 P.2d 229, 230-31 (1962)

(“[D]amages . . . will not be disturbed on appellate review

unless palpably not supported by the evidence, or so excessive

and outrageous when considered with the circumstances of the

case.”).   With respect to Briandalynne’s damages, the circuit

court made the following FOF, which Petitioners do not challenge

in their application for certiorari:
           56. The evidence established that [Briandalynne had]
           no congenital or development abnormalities. Despite
           the incarcerated status of her mother,
           [Briandalynne’s] life and her loss of enjoyment of
           life, are of the nature and kind of any other infant.

           The circuit court also made the following COLs:
           72. Had Plaintiff’s medical care been consistent with
           the applicable standard of care, such as a
           consultation with an OBGYN and an ultrasound
           evaluation by as late as July 29, 2007, Plaintiff’s
           bleeding condition would have been detected and
           treated; or if the bleeding condition could not have
           been corrected, delivery would have been initiated and
           [Briandalynne] would have been born alive.

           73. Defendant State’s negligence was the legal cause
           of the death of [Briandalynne], and Plaintiff's


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           injuries and damages. Had medical care for [Castro
           and Briandalynne] been provided consistent with the
           applicable standard of care after July 2, 2007 and
           before July 29, 2007, delivery of a live baby would
           have been accomplished.

                                  . . . .

           83. The Estate’s damages include the value for the
           loss of life itself and for all of the damages that
           [Briandalynne] would have been entitled to had she
           been alive, such as loss of enjoyment of life. The
           evidence established that [Briandalynne had] no
           congenital or development abnormalities. Despite the
           incarcerated status of her mother, [Briandalynne’s]
           life and her loss of enjoyment of life, are of the
           nature and kind of any other infant. An award of
           damages against Defendant State, in the amount of
           $250,000.00 to the Estate of Briandalynne Castro, is
           fair and appropriate, for the State’s share of the
           Estate's total damages.

           Based on this record, the circuit court’s damages award

was not clearly erroneous.      The $250,000 was appropriately based

on the evidence at trial that showed, for example, that

Briandalynne would have been born a healthy child, and that her

loss of enjoyment of life would be similar to that of any other

infant.    This award is also comparable to other damage awards for

similar conduct.    See Polm, 2014 WL 7390879 at *21 (affirming

circuit court’s order awarding $250,000 in damages to one-year-

old child’s estate).

           Contrary to Petitioners’ argument, Respondents were not

required to present specific evidence of Briandalynne’s life

expectancy or make calculations regarding her loss of enjoyment

of life.   This is not a case in which damages were capable of

ascertainment by calculation.       As we noted in Montalvo:


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           The measurement of the joy of life is intangible. A
           jury may draw upon its own life experiences in
           attempting to put a monetary figure on the pleasure of
           living. It is a uniquely human endeavor . . .
           requiring the trier of fact to draw upon the virtually
           unlimited factors unique to us as human beings.
           Testimony of an economist would not aid the jury in
           making such measurements because an economist is no
           more expert at valuing the pleasure of life than the
           average juror. [T]he loss of enjoyment of life
           resulting from a permanent injury is . . . not subject
           to an economic calculation.

77 Hawai#i at 303, 884 P.2d at 366 (emphases added; citations and

internal quotations omitted).

           Thus, given its findings, we conclude that the circuit

court was within its discretion to set $250,000 as the

appropriate compensation for Briandalynne’s injury.

                             V.   Conclusion

           For the foregoing reasons, we hold that Briandalynne’s

estate could maintain a survival action against Petitioners for

hedonic damages, and that the circuit court did not err in

awarding the estate $250,000 in damages for loss of enjoyment of

life.   Accordingly, we affirm the ICA’s judgment on appeal.


Marie Manuele Gavigan                    /s/ Mark E. Recktentwald
for petitioners
                                         /s/ Michael D. Wilson
Sue V. Hansen for
respondent Leah Castro




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