    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0003500
                                                              26-APR-2018
                                                              08:08 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                    SAMANTHA THERESALYN MEDEIROS,
                   Respondent/Plaintiff-Appellant,

                                    vs.

                         BRADLEY KONG CHOY,
                   Petitioner/Defendant-Appellee.


                            SCWC-13-0003500

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-13-0003500; CIV. NO. 11-1-2004-09)

                             APRIL 26, 2018

     McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
         DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

          In this case, which arises out of a 2007 car

collision, the circuit court refused the plaintiff’s request to

instruct the jury that the plaintiff’s motives in pursuing the

suit were immaterial to the merits of the negligence claim.                In
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


closing argument, the defendant argued at length that the

plaintiff had lied about being involved in the collision in

order to commit worker’s compensation fraud and secure an

unwarranted payout.     The jury found by special verdict that the

defendant was not the legal cause of the plaintiff’s injuries.

           On appeal, the Intermediate Court of Appeals (ICA)

vacated the circuit court judgment, holding that the requested

jury instruction should have been given under this court’s prior

precedent.   We granted certiorari and further clarify the

circumstances when a court is required to instruct the jury that

it may not consider a plaintiff’s motivation for pursuing a

civil action.

           In applying these principles to this case, we hold

that the plaintiff’s motives for bringing suit were irrelevant

to both the merits of her claim and her credibility as a

witness.   We further hold that, in light of the evidence adduced

at trial, the jury should have been instructed as the plaintiff

requested.   Accordingly, we affirm the ICA decision and remand

the case for a new trial to be conducted in a manner consistent

with this opinion.

                   I. FACTS AND PROCEDURAL HISTORY

                  A. Events Giving Rise to the Case

           On January 23, 2007, Bradley Choy rear-ended a vehicle

driven by Bernard Jimenez while driving in heavy traffic near

                                     2
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


downtown Honolulu.      The force of the collision pushed Jimenez’s

vehicle forward, causing it to impact the rear of a third

vehicle driven by Jennilind Aggasid.

            Samantha Medeiros testified that she was helping

Aggasid transport a patient named Mary Beth Chan to a doctor’s

appointment at the time of the collision.1          Aggasid operated a

care home out of her residence, and Medeiros, who worked as a

nursing assistant for Nursefinders,2 had been assigned to help

Aggasid care for Chan.      Medeiros stated that she was sitting

directly behind Aggasid in the backseat when the accident took

place.   Medeiros related that when the impact occurred, she was

turned to the right in order to speak with Chan, who was seated

in the backseat on the passenger side.

            Following the collision, all three cars pulled into a

nearby gas station.      Medeiros testified that she then got out of

the car and moved to the front seat to comfort Aggasid, who was

badly disturbed by the event.        Medeiros stated that, except for

briefly examining the damage to the back of the car, she

remained in the vehicle while waiting for the police to arrive

and complete their accident report.


     1
            Aggasid gave testimony at trial generally supporting Medeiros’s
version of events.
      2
            Nursefinders is a staffing agency that places medical aides in
the homes of its clients.




                                      3
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


             In contrast, Choy testified that the frontmost car in

the collision contained two women in the front seat--one elderly

and one in her teens or twenties--and a small child in the

backseat.3    Choy was unable to identify Medeiros as one of the

women present in the vehicle.        He related that the child, whom

he described as around four years old and in diapers, was

visible walking back and forth on the backseat of the frontmost

car after the vehicles pulled into the gas station.            He further

contended that the two women attempted to conceal that the child

had not been properly restrained by retrieving a car seat from

the vehicle’s trunk and buckling the child into it before police

arrived.     Medeiros and Aggasid denied that any child or car seat

was present in the vehicle.

             The police report on the accident specifies Aggasid as

the driver of the front vehicle and states that the car

contained three occupants.       It does not provide names or

descriptions of the other passengers.         At trial, the     police

officer who responded to the accident, Officer Kirk Brown, gave

a description of the occupants of Aggasid’s vehicle.            The

officer testified that there were two women in the front seat,


     3
            Jimenez and Choy’s wife, who was present in Choy’s vehicle during
the accident, gave testimony at trial generally supporting Choy’s version of
events. At the time of the accident, Aggasid was 45 and Medeiros was 25.
The record does not reflect Chan’s age.




                                      4
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


which he estimated to both be in their forties or older, and a

juvenile or small adult in the backseat.         He stated that one of

the women may have been five or ten years younger than the

other, but acknowledged his assessment of the occupants’ age may

not have been accurate, noting that he was “not an expert at

that.”   Officer Brown also testified that he did not observe a

car seat or a child in diapers in any of the vehicles.

          Medeiros testified that she began to experience pain

in her lower back after the impact.        The pain worsened over

time, eventually leading to months of physical therapy and two

surgeries.   Medeiros was unable to work from January 24, 2007,

to August 22, 2010.     Because her injuries were determined to

have arisen out of the course and scope of her employment,

Medeiros was deemed eligible for worker’s compensation.            Upon

reviewing her injuries, an independent examiner rated Medeiros

at 25% impairment of the whole person.         As a result, Medeiros

received $153,949.75 in medical bill reimbursements and

$105,356.62 in temporary and permanent disability benefits.

                     B. Circuit Court Proceedings

          On September 7, 2011, Medeiros filed a complaint

against Choy in the Circuit Court of the First Circuit (circuit

court), alleging that Choy’s negligence was the legal cause of




                                     5
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


her injuries and seeking general, special, and punitive damages.4

Prior to trial, Choy stipulated that he had caused the accident

and stated that only the “cause, nature and extent of any

injuries” suffered by Medeiros were left to be determined.

          Based on the content of pretrial depositions, Medeiros

filed a motion in limine seeking to preclude witnesses from

testifying regarding the presence of an unrestrained child in

Aggasid’s vehicle or the retrieval and installation of a car

seat from the vehicle’s trunk following the accident.            Medeiros

argued that the child’s presence did not bear on any contested

issues and was likely to waste time and confuse the jury.             She

further asserted that it would cause her unfair prejudice

because the jury was likely to have a strong, negative reaction

to allegations that a child was put in danger by a violation of

child safety laws.    Choy responded that the testimony would

reflect on whether Medeiros was actually involved in the

accident, her location and position in the car when the accident

occurred, and whether Medeiros was in the course and scope of

her employment at the time of the accident and thus legitimately

entitled to the worker’s compensation benefits she received.

The circuit court denied the motion, noting that it would



     4
          The Honorable Virginia Lea Crandall presided.




                                     6
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


evaluate relevance at trial in light of its understanding that

“credibility is at issue always.”

            At trial, Medeiros first elicited testimony regarding

the presence of a child or car seat in Aggasid’s vehicle on

direct examination of Aggasid, who denied that either was

present.    Both parties questioned witnesses about the child and

car seat throughout the rest of the trial without drawing any

relevancy-based objections.       Choy’s wife testified that she had

wanted to inform the police that the child was not restrained

during the accident so that the occupants of the car “would be

aware that they always need to put the child in the child

restraint seat for the safety of the child.”           Choy testified

that he stopped his wife from relaying the information to law

enforcement because he believed the occupants had “learned a

lesson.”5

            Medeiros also submitted a proposed jury instruction

based on this court’s decision in Kobashigawa v. Silva, 129

Hawaii 313, 300 P.3d 579 (2013), that would have informed the

jury that the motives of a plaintiff in bringing a lawsuit are

immaterial if the elements of a valid cause of action are


     5
            During his closing argument, Choy addressed the testimony of the
responding police officer, who had testified that he did not see a car seat
in any of the vehicles, stating, “Well, if there was no child restraint seat
installed, then shame on those ladies, whoever they are.”




                                      7
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


otherwise established.6      Medeiros proposed that the jury be

instructed that it “may not consider the Plaintiff’s motives in

bringing the lawsuit.      So far as the law is concerned, if the

Plaintiff has made out a case on the facts, it is immaterial

what her motive was.”

           After the parties rested, the circuit court held an

in-chambers hearing to settle jury instructions.            Over

Medeiros’s objection, the court refused her request to instruct

the jury that her motives in bringing the lawsuit were

immaterial, although the court stated that it would reconsider

Medeiros’s request if Choy brought up the issue of motive during

closing arguments.

           Prior to closing argument, the court gave instructions

to the jury that did not include any mention of the

immateriality of Medeiros’s motives for pursuing the civil

action.   Choy then proceeded to make repeated reference in his

closing argument to Medeiros’s allegedly improper motives for

bringing suit.     Among many other references, Choy characterized

the collision as “[o]bviously . . . a non-event, not even a blip


     6
            Medeiros filed a separate bench memorandum prior to trial drawing
the court’s attention to the Kobashigawa decision. Medeiros acknowledged
that the deadline for filing motions in limine had passed, but she suggested
that the importance of the matter warranted a sua sponte order disallowing
reference to or inquiry into her motive for filing the lawsuit during the
course of trial. The record does not indicate that the circuit court issued
such an order.




                                      8
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


on the radar,” but argued that Medeiros had pursued litigation

anyway because “there was money to be made and a lawsuit to be

found--filed because this was a car accident and it wasn’t her

fault.”   Choy also questioned the timing of Medeiros’s filing of

a worker’s compensation claim, arguing that it indicated she had

fabricated the incident for monetary gain: “Did she suddenly

remember six days after the accident that she was working when

the accident occurred or did she make the whole thing up to

qualify for workers compensation benefits?”7          Choy speculated

that the allegedly delayed claim might be explained by

Medeiros’s discovery that “there are monetary limits to no-fault

insurance that you don’t have with workers’ compensation”--a

statement for which no evidence was presented at trial.             Choy

then implied that Medeiros’s lawsuit was an attempt to hold him

responsible for reimbursing the payments she received through a

false worker’s compensation claim: “So if Mrs. Medeiros was not

in the vehicle or not working at the time, then she arguably

submitted a false workers compensation claim, and if so, Mr.


     7
            The term “work-related” first appears in Medeiros’s physician’s
notes in an entry that corresponded with Medeiros’s second visit, which
occurred on January 29, 2007. The physician testified that this could
indicate that he was not informed that the car accident was work related
during Medeiros’s initial visit on the day after the collision, January 24,
2007. However, the insurance adjuster who handled Medeiros’s claim testified
that Medeiros reported her injury to Nursefinders “right away,” and the
insurer prepared a WC-1 form documenting a work-related injury to Medeiros on
January 26, 2007.




                                      9
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Choy should not be held responsible for reimbursing that false

claim.”   Choy also suggested that a verdict in Medeiros’s favor

would be something the jury would be ashamed of because it would

serve to consummate her fraudulent scheme:

          And when this case is over, each of you will be able to go
          home and talk about the case with your family and friends,
          and when you talk about the case, can you say you would be
          proud of a verdict of $1.2 million for this accident?
          Absolutely not. The only one who would be proud of such a
          verdict is the plaintiff because she would have
          accomplished exactly what she set out to accomplish the
          moment she informed Dr. Miscovich she was in a car accident
          and then convert it to a workers’ compensation claim.

          Following closing arguments, the court provided the

general concluding jury instructions, which again did not inform

the jury that it could not consider Medeiros’s motives for

pursuing the lawsuit.     The jury returned an eleven-to-one

special verdict finding that Choy’s negligence was not the legal

cause of injury to Medeiros.      Medeiros renewed a previously

filed motion for judgment as a matter of law, or, in the

alternative, for a new trial.       The circuit court denied the

motion and entered judgment.      Medeiros timely appealed.

                           C. ICA Proceedings

          On appeal to the ICA, Medeiros argued that the circuit

court had erred by admitting irrelevant and prejudicial

testimony about an unrestrained child and car seat in Aggasid’s

vehicle and by refusing to give a jury instruction barring

consideration of Medeiros’s motivation for bringing the lawsuit.



                                    10
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


           In a memorandum opinion, the ICA first considered the

content of Medeiros’s proposed jury instruction.8           Referencing

this court’s Kobashigawa decision, the ICA held that the

instruction was a correct statement of the law.           The ICA further

held that, taken in light of Choy’s repeated allegations that

Medeiros’s lawsuit was brought as part of a scheme to commit

worker’s compensation fraud, the circuit court’s failure to give

the instruction was “prejudicially insufficient.”

           The ICA then turned to the admissibility of testimony

regarding the unrestrained child and the retrieval and

installation of a car seat in the backseat of Aggasid’s vehicle.

The appellate court considered Medeiros’s contention that the

testimony was irrelevant under Hawaii Rules of Evidence (HRE)

Rule 401 (1993) and HRE Rule 402 (1993).          The ICA stated that

the evidence of the unrestrained child and the car seat was

being used to show alleged worker’s compensation fraud and thus

related to Medeiros’s motives for bringing suit.            The court

explained that, under Kobashigawa, evidence of Medeiros’s

motives was inadmissible substantively or to impeach Medeiros’s

credibility as a witness.       The ICA therefore held that the

testimony was not relevant to disprove Medeiros and Chan’s


      8
            The ICA’s memorandum opinion is available at Medeiros v. Choy,
CAAP-13-0003500, 2016 WL 3408046 (App. June 16, 2016) (mem.).




                                     11
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


presence in the car at the time of the accident in order to

undermine Medeiros’s worker’s compensation claim.

          The ICA also held, however, that the testimony did

have a tendency to prove or disprove Medeiros’s position within

the car at the time of the accident.        This was relevant to the

issue of causation, the ICA concluded, because expert testimony

had indicated that the location and direction of Medeiros’s body

affected her likelihood of injury from the impact.

          Notwithstanding the relevance of the evidence under

HRE Rule 401, the ICA held that the circuit court had abused its

discretion by admitting the testimony because, under HRE Rule

403 (1980), its probative value was substantially outweighed by

its potential to confuse the jury and incite unfair prejudice

against Medeiros.    The court reasoned that the existence of a

child and the installation of a car seat in the backseat of

Aggasid’s vehicle had only a minimal bearing on Medeiros’s

position in the vehicle at the time of the impact.           In contrast,

the ICA stated, the testimony was very likely to confuse the

jury and cause Medeiros unfair prejudice because Choy repeatedly

referenced it in conjunction with Medeiros’s alleged motive of

committing worker’s compensation fraud, which the ICA had held

inadmissible.

          Based on these rulings, the ICA vacated the circuit

court’s judgment and the order denying Medeiros’s motion for

                                    12
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


judgment as a matter of law, or, in the alternative, for a new

trial, and the ICA remanded the case for a new trial.

                        II. STANDARD OF REVIEW

                           A. Jury Instructions

          We review jury instructions to determine whether,

considered as a whole, the instructions were “prejudicially

insufficient, erroneous, inconsistent, or misleading.”            Nelson

v. Univ. of Haw., 97 Hawaii 376, 386, 38 P.3d 95, 105 (2001)

(internal quotation marks and citations omitted).           Invalid or

insufficient instructions are presumptively prejudicial and are

grounds for vacating the verdict unless it affirmatively appears

from the record as a whole that the error was harmless.            Id.

                         B. Evidentiary Rulings

          The standard we employ when reviewing the

admissibility of evidence varies with the particular evidentiary

rule at issue.    State v. West, 95 Hawaii 452, 456-57, 24 P.3d

648, 653-54 (2001) (citing Kealoha v. Cty. of Haw., 74 Haw. 308,

319, 844 P.2d 670, 676 (1993)).       When a rule is amenable to

objective application such that it can result in only one

correct answer in a given situation, we review lower courts’

application of the rule under the right/wrong standard.            Id.

The evaluation of whether evidence is “relevant” within the

meaning of HRE Rule 401 (1993) falls into this category of

determinations, and we are thus not required to give weight to
                                    13
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


the trial court’s application of the rule.         State v. St. Clair,

101 Hawaii 280, 286, 67 P.3d 779, 785 (2003).

          When an evidentiary rule calls for a “judgment call”

by the trial court, however, the traditional abuse of discretion

standard applies.    Id.   HRE Rule 403 (1993)--under which a trial

court weighs the probative value of relevant evidence against

its potential to cause unfair prejudice, confuse the issues, or

waste time--requires such a judgment call.         State v. Richie, 88

Hawaii 19, 37, 960 P.2d 1227, 1245 (1998).         We will therefore

set aside a trial court’s HRE Rule 403 determination only when

it “exceeds the bounds of reason or disregards rules or

principles of law or practice to the substantial detriment of a

party litigant.”    Samson v. Nahulu, 136 Hawaii 415, 425, 363

P.3d 263, 273 (2015) (quoting State v. Ganal, 81 Hawaii 358,

373, 917 P.2d 370, 385 (1996)).

                            III. DISCUSSION

          In his application for a writ of certiorari, Choy

presents two questions for our review: 1) “Whether the circuit

court should have issued an instruction on Medeiros’ motives for

bringing the lawsuit,” and 2) “Whether the circuit court abused

its discretion in denying [Medeiros’s] motion in limine to




                                    14
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


exclude evidence of an unidentified child in the back seat of”

Aggasid’s car.9    We address each issue in turn.

A. The Requested Jury Instruction as to Irrelevancy of Motive in
                Bringing a Lawsuit Was Required.

           We have often held that “it is error for a trial judge

to refuse to give instructions requested which correctly state

the law on issues presented unless the points are adequately

covered by the instructions given.”         Gibo v. City & Cty. of

Honolulu, 51 Haw. 299, 304, 459 P.2d 198, 201 (1969); accord

Tabieros v. Clark Equip. Co., 85 Hawaii 336, 371, 944 P.2d 1279,

1314 (1997); State ex rel. Bronster v. U.S. Steel Corp., 82

Hawaii 32, 52, 919 P.2d 294, 314 (1996).          Thus, a court must

give a requested jury instruction when 1) the instruction

accurately states the law; 2) the instruction is applicable to

an issue presented; and 3) the instruction is not needlessly

duplicative.    Because neither party claims that the substance of

Medeiros’s proposed jury instruction regarding motive in

bringing a lawsuit was covered by other instructions given, we




      9
            In presenting the second question, Choy’s application refers to
“Plaintiff’s car” rather than Aggasid’s car. Medeiros testified at trial
that she had left her car at Aggasid’s house on the morning of the accident
and that Nursefinders regulations prohibited her from using her personal
vehicle to transport patients. Because it appears to be uncontested that it
was Aggasid’s car that was involved in the accident, we assume Choy’s
reference was in error and address only the admissibility of testimony
regarding Aggasid’s car.




                                     15
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


consider whether the instruction correctly stated the law and

was applicable to an issue presented.

  1.     The Relevancy of a Plaintiff’s Motive for Bringing Suit

                        a.    Principles of Law

           Medeiros requested that the jury be instructed it “may

not consider the Plaintiff’s motives in bringing the lawsuit”

and that “as far as the law is concerned, if the Plaintiff has

made out a case on the facts, it is immaterial what her motive

was.”

           In Kobashigawa v. Silva, 129 Hawaii 313, 315-16, 300

P.3d 579, 581-82 (2013), the wife and daughter of a man killed

in a pedestrian crosswalk brought claims for negligence and

negligent infliction of emotional distress against the City and

County of Honolulu (City).      When deposed, the only eyewitness to

the accident testified that she called the daughter of the

decedent on the day following the accident, “and the first thing

out of [the daughter’s] mouth was, ‘Would you be willing to

testify if we sued?’”     Id. at 316, 300 P.3d at 582.        The

eyewitness stated that she took offense to the question and

“pretty much hung up, after that” because she was angry that the

daughter had “s[een] her father’s death with money signs in her

eyes.”   Id.   The deposition was admitted at trial, and in its

closing argument, the City pointed to the witness’s testimony in

suggesting that the lawsuit was “simply about getting a

                                    16
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


collectable monetary award from the City.”         Id. at 318-19, 300

P.3d at 584-85.

            In holding that the City’s evidence and commentary

were irrelevant and inadmissible, we noted that “it is a long-

standing principle of law that a plaintiff’s motive in filing a

lawsuit is otherwise immaterial to resolving the merits of the

dispute.”   Id. at 333, 300 P.3d at 599 (emphasis added).           This

rule is firmly established in the precedent of this court.

See Carter v. Ah So, 12 Haw. 291, 302 (Haw. Terr. 1899) (“So far

as the law is concerned, if the plaintiff has made out a case on

the facts, it is immaterial what [the] motive was.”); Lucas v.

American–Hawaiian Eng’g & Constr. Co., 16 Haw. 80, 85–86 (Haw.

Terr. 1904) (“[T]he weight of authority is that the motives of a

taxpayer in bringing a suit can not be inquired into if he has

shown that he has the other qualifications to sue. . . . That

motives can not be inquired into is well settled.”).

            Indeed, the precept that a plaintiff’s motives for

bringing an action are not relevant to the merits of the suit

was regarded as generally accepted within American jurisprudence

as far back as the turn of the twentieth century.           In 1900, the

United States Supreme Court observed that, “If the law concerned

itself with the motives of parties new complications would be

introduced into suits which might seriously obscure their real

merits.”    Dickerman v. N. Tr. Co., 176 U.S. 181, 190 (1900); see

                                    17
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


also McMullen v. Ritchie, 64 F. 253, 261 (C.C.N.D. Ohio 1894);

Toler v. E. Tenn., V. & G. Ry. Co., 67 F. 168, 177 (C.C.E.D.

Tenn. 1894); Davis v. Flagg, 35 N.J. Eq. 491, 495 (1882).              The

rule has remained well established in courts throughout the

nation in the years since.       See, e.g., Johnson v. King-

Richardson Co., 36 F.2d 675, 677 (1st Cir. 1930); Somers v. AAA

Temp. Servs., 5 Ill. App. 3d 931, 935 (1972); Sharon v. Time,

Inc., 599 F. Supp. 538, 586 (S.D.N.Y. 1984); Rhone-Poulenc Rorer

Inc. v. Home Indem. Co., No. CIV. A. 88-9752, 1991 WL 183842, at

*2 (E.D. Pa. Sept. 16, 1991); Karim v. Gunn, 999 A.2d 888, 890

(D.C. 2010); Tallman v. Freedman Anselmo Lindberg, L.L.C., No.

11-3201, 2013 WL 2631754, at *3 (C.D. Ill. June 12, 2013).10

           The rule does not bar evidence of a plaintiff’s motive

in all situations, but rather states only that such evidence is

immaterial to resolving the merits of the suit.           Courts have in

limited situations admitted evidence of motive when it is used

for some matter unrelated to disproving the merits of the

underlying action.     When recently considering the matter, the

United States District Court for the Eastern District of


     10
            Contra Gaudin v. Shell Oil Co., 132 F.R.D. 178, 179 (E.D. La.
1990) (stating, without explanation, that a personal injury plaintiff’s
credit and financial history was admissible to show that she had an improper
motive in bringing the suit); but see Charles A. Wright & Kenneth W. Graham,
22B Federal Practice & Procedure § 5240 n.17 (1st ed.) (referring to Gaudin
as a “[s]hocking ruling unless there is more to [the] case than appears from
[the] opinion”).




                                     18
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Virginia discussed four situations when evidence of a

plaintiff’s motive may bear on such collateral issues.            See

Samsung Elecs. Co. v. NVIDIA Corp., No. 3:14CV757, 2016 WL

754547, at *2 (E.D. Va. Feb. 24, 2016).         First, motive evidence

may be admissible when a defendant raises certain equitable

defenses such as laches or estoppel.        Id. (citing Parsons v.

Jefferson-Pilot Corp., 141 F.R.D. 408, 414 (M.D.N.C. 1992)); see

also C.L. Maddox, Inc. v. Royal Ins. Co. of Am., 208 Ill. App.

3d 1042, 1051, 567 N.E.2d 749, 755 (1991) (admitting evidence of

plaintiff’s financial difficulty when arson raised as defense to

action to collect on insurance policy).         Second, motive may in

some instances be considered during class certification when

determining whether a plaintiff is an appropriate class

representative.    Samsung, 2016 WL 754547, at *2 (citing Denny v.

Carey, 73 F.R.D. 654, 656 (E.D. Pa. 1977)).          Third, courts may

consider the motivation of the plaintiff in bringing suit when

considering whether to grant various post-disposition motions.

See id.; Tallman, 2013 WL 2631754, at *3; Lee v. Kucker & Bruh,

LLP, No. 12 Civ. 4662(BSJ)(JCF), 2013 WL 680929, at *2 (S.D.N.Y.

Feb. 25, 2013).

          Lastly, courts have in narrow circumstances permitted

a plaintiff’s motive for bringing suit to be considered to

demonstrate bias and undermine the credibility of a plaintiff

who testifies--when the evidence demonstrates that the plaintiff

                                    19
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


brought the lawsuit for an ulterior purpose.             Samsung, 2016 WL

754547, at *2.       In Montoya v. Village of Cuba, No. CIV 11-0814

JB/SMV, 2013 WL 6504291, at *17 (D.N.M. Nov. 30, 2013), for

instance, the court permitted inquiry into a plaintiff’s motive

for pursuing a wrongful arrest claim when it was alleged that

the suit was brought in retaliation for the officer-defendant’s

perceived role in a hospital’s decision to discontinue the

plaintiff’s morphine prescription.           Allegations that the suit

was brought for the purpose of harassing the defendant were

relevant to the plaintiff’s credibility because it suggested

bias in her testimony other than the bias inherent in the

adversarial process.        See also Barkley v. City of Klamath Falls,

302 F. App’x 705, 706 (9th Cir. 2008); Heath v. Cast, 813 F.2d

254, 259 (9th Cir. 1987); Montoya v. Sheldon, 898 F. Supp. 2d

1259, 1278 (D.N.M. 2012).

             In contrast, evidence that a plaintiff is seeking the

relief that is at stake in the case has no additional bearing on

the plaintiff’s credibility as a witness beyond what is inherent

in the very existence of the lawsuit.           We thus held in

Kobashigawa that testimony that the plaintiffs brought the suit

for the purpose of monetary gain was not relevant to the

plaintiffs’ credibility.         129 Hawaii at 333-34, 300 P.3d at 599-

600.    The testimony had no probative value because the

plaintiffs’ very filing of a complaint established that they

                                       20
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


sought monetary reparations for the alleged wrong done to them

by the defendant.       See id.

           In sum, evidence of a plaintiff’s motive in bringing a

civil action is not material to the substantive elements of the

cause of action giving rise to the suit in which it is offered.

Such evidence may, however, be admissible for impeaching a

plaintiff-witness when it tends to prove that the true purpose

of the suit is something other than vindicating the alleged

injury through the remedy sought.11        This rule coincides with

longstanding practices of courts across the nation.

                   b.     The Dissent’s Proposed Rule

           The dissent argues that evidence of a plaintiff’s

motive for bringing suit may be relevant to impeach a

plaintiff’s credibility as a witness when “there is evidence to

support” that the plaintiff might have filed suit fraudulently

or in bad faith.     Dissent at 3.     The dissent distinguishes the

“bad faith” in its proffered rule from the bad faith we have

identified, appearing to argue that allegations of dishonesty

regarding aspects of a claim make evidence or consideration of a

      11
            Even when evidence of a plaintiff’s motive is relevant to a
witness’s credibility in the limited situations discussed, its admission must
be in compliance with other evidentiary rules, including a determination
under HRE Rule 403 that the probative value of the evidence is not
substantially outweighed by its potential to confuse the issues and cause
undue prejudice. See Sheldon, 898 F. Supp. 2d at 1278 (limiting cross-
examination regarding plaintiff’s alleged retaliatory motives for bringing
suit in order to avoid introducing undue prejudice into the proceeding).




                                     21
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


plaintiff’s motive for bringing the lawsuit relevant to the

plaintiff’s credibility as a witness because money damages

create a financial incentive to be untruthful.12             Dissent at 8, 8

n.1.    Respectfully, the dissent’s approach is contrary to

settled law in this jurisdiction, problematic in application,

and unworkable in practice.

             Plainly, the range of cases in which the defendant

could argue that there is evidence of bad faith or questions of

fraud with respect to the elements of a claim is virtually

limitless (e.g., whether an injury occurred,13 whether the injury

was preexisting or occurred after the incident at issue,14

whether the defendant’s conduct was a cause of the injury,15


       12
            While the dissent contends that its position is otherwise, the
basis of the dissent’s argument is that a plaintiff’s motive--which here is
obtaining financial relief--is relevant to the plaintiff’s credibility as a
witness when other evidence indicates that the suit may have been brought
fraudulently or in bad faith. A witness’s motive affects his or her
credibility only insofar as it provides an incentive to testify in a biased
or untruthful manner. Thus, the dissent essentially argues that financial
relief provides an incentive for the plaintiff to testify in a biased or
untruthful manner regarding the merits of the suit and, by necessary
implication, that evidence of such a motive makes it more likely that the
suit was brought fraudulently or in bad faith.
       13
            E.g., Royal State Nat’l Ins. Co. v. Labor & Indus. Relations
Appeal Bd., 53 Haw. 32, 36, 487 P.2d 278, 281 (1971); Essenburg v. Cabane,
196 F. Supp. 83, 88 (D. Haw. 1961).
       14
            E.g., Montalvo v. Lapez, 77 Hawaii 282, 292, 884 P.2d 345, 355
(1994); Weite v. Momohara, 124 Hawaii 236, 243, 240 P.3d 899, 906 (App.
2010).
       15
            E.g., O’Grady v. State, 140 Hawaii 36, 48, 398 P.3d 625, 637
(2017); Taylor-Rice v. State, 91 Hawaii 60, 74, 979 P.2d 1086, 1100 (1999);
Aga v. Hundahl, 78 Hawaii 230, 237, 891 P.2d 1022, 1029 (1995).




                                       22
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


whether the injury resulted from use of a product,16 etc.).             The

dissent responds that such an argument “will only arise in

exceptional circumstances.”       Dissent at 16.      Yet the bar is not

set overly high.     Here, the responding officer, who offered the

only account of the incident from a neutral party not involved

in the collision, confirmed Aggasid and Medeiros’s testimony

that a child and car seat were not present and thus undermined a

core basis of Choy’s fraud allegations.17         Nonetheless, the


     16
            E.g., Udac v. Takata Corp., 121 Hawaii 143, 156, 214 P.3d 1133,
1146 (App. 2009). Indeed, an argument that a plaintiff’s claim is fabricated
is one of the only substantive defenses available in a range of relatively
commonplace strict liability causes of action, including when an injury is
asserted from an alleged manufacturing defect. See Johnson v. Raybestos-
Manhattan, Inc., 69 Haw. 287, 288, 740 P.2d 548, 549 (1987) (“By definition,
a strict products liability action does not require a showing that the
defendant was negligent in manufacturing or distributing the product.”).
     17
            Officer Brown’s testimony was consistent with Medeiros and
Aggasid’s also in that he testified to witnessing one individual in the back
seat of Aggasid’s vehicle and two women in the front seat. Medeiros
testified that she got out of the car following the accident and moved to the
front seat to comfort Aggasid, who was disturbed by the event. Medeiros’s
testimony therefore indicated the two women were sitting in the front seat
and Chan was sitting in the backseat when the officer arrived. Also
consistent with Medeiros and Aggasid’s testimony was Officer Brown’s
description of the person in the back seat “who was a little bit smaller than
the normal.” Chan was “around 5 feet something,” suffered from mental health
issues, and would commonly look down. The dissent argues that an indication
of the fraudulent nature of the lawsuit is that Officer Brown characterized
the two women as both being over forty and stated that he did not recognize
anyone in the courtroom at trial. Dissent at 12. Officer Brown testified
that he was “not an expert” at judging age and acknowledged that his estimate
may have been off. He also testified only that he could not recall whether
Medeiros was one of the car occupants but did not deny that she could have
been in the vehicle. Officer Brown further testified that he had
investigated about a thousand traffic accidents in his career as a beat
officer and pointed out that the trial in this case occurred more than six
years after the accident. Medeiros’s appearance had changed enough over this
time period that defense counsel introduced a number of old photographs into
evidence to demonstrate to the jury what Medeiros looked like at the time of
the collision.




                                     23
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


dissent makes clear that the testimony of the defendant and his

wife, supported by another driver in the collision, is

sufficient to trigger the dissent’s rule and somehow make

Medeiros’s motive of seeking financial relief in a lawsuit

relevant to her credibility.      As this balance of evidence is

sufficient to trigger the dissent’s rule, the approach applies

in circumstances that are far from “exceptional” within our

legal system.

          Further, evidence that a plaintiff seeks financial

relief in the filing of a lawsuit does not make it more or less

likely that the plaintiff is testifying untruthfully, as the

dissent appears to contend, nor that the suit was brought

fraudulently or in bad faith.       Such evidence therefore fails

threshold relevancy requirements.        See HRE Rule 401.     As

discussed, evidence that shows only that the plaintiff is

seeking the relief requested based on the reasons set forth in

the claim has little to no actual bearing on a plaintiff’s

credibility beyond what is inherent in the very existence of the

lawsuit and accordingly serves only to appeal to the prejudices

of the finder of fact.     Conversely, when there is evidence that

a plaintiff is pursuing a case for an ulterior motive unrelated

to vindicating the alleged injury through the remedy sought, the

evidence is relevant to demonstrate a plaintiff’s bias as a



                                    24
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


witness regardless of whether there is also evidence of fraud in

the underlying lawsuit.       See HRE Rule 609.1 (1980).

            The dissent’s position is therefore inconsistent with

our holding in Kobashigawa v. Silva, which explicitly rejects

any direct equivalence between “motive evidence permissible

under [HRE] Rule 609.1 to impeach the credibility of a witness”

and “evidence of the plaintiff’s [financial] motive for filing

suit.”18   129 Hawaii 313, 334, 300 P.3d 579, 600 (2013).

Kobashigawa is clear that evidence of a financial motive for

filing a lawsuit “is irrelevant and thus inadmissible,” and that

HRE Rule 609.1 may not be used as an end-run-around “to question

the bias, interest, or motive of the plaintiff bringing the

suit.”19   Id.   Assertions of bad faith or dishonesty may bear on


     18
            The dissent appears to conflate different evidentiary concepts,
including the admissibility of evidence of present or past instances of bad
faith or fraud--which is admissible for the purposes identified in HRE Rule
404 and HRE Rule 608 or to disprove the elements of the claim--with evidence
admissible for the purpose of showing the plaintiff’s financial motive for
bringing the lawsuit. The principles are distinct. Evidence of past or
current fraudulent conduct may bear on the merits of the claim and a
testifying plaintiff’s credibility. Thus, the dissent’s conclusion that
“evidence indicating that Medeiros may have filed suit against Choy in bad
faith and for purposes of perpetuating fraud was relevant to her credibility
as a witness” is nearly correct--evidence of fraud is generally relevant.
Dissent at 24. But as stated, evidence of a plaintiff’s motive in the filing
of a lawsuit--obtaining financial relief--does not make it more or less
likely that the plaintiff is testifying untruthfully or that the relief is
sought fraudulently or in bad faith. Such evidence is not relevant, and
otherwise admissible evidence thus may not be considered for this purpose.
See HRE Rule 401.
     19
            The dissent interprets this principle as suggesting “that
Kobashigawa completely precludes evidence of a plaintiff’s motive from being
used to impeach his or her credibility as a witness in all circumstances.”
Dissent at 16. To the contrary, Kobashigawa correctly applied our

                                                             (continued . . .)

                                     25
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


the merits of the claim and a plaintiff’s credibility, but the

unproven assertions may not be used to attack the plaintiff for

seeking financial relief because a financial motivation for

bringing suit does not bear on those issues.           Indeed, leveraging

allegations of a monetary motive in order to appeal to a jury’s

prejudices amounts to an attack on a foundation of our civil

justice system--that injured plaintiffs may be properly made

whole through monetary relief.

            The dissent relies on several inapposite and

insubstantial cases from other jurisdictions to argue that its

approach has been recognized by “numerous other courts.”

Dissent at 9-10, 17.      A review of the cited cases demonstrates

that the defense’s proposed rule has little support in the

precedents of other jurisdictions.

            In Valdez v. State ex rel. Farrior, 142 Fla. 123, 137,

194 So. 388, 394 (1940), for instance, the court stated in dicta

that equitable relief might be unavailable where a plaintiff’s

hands are rendered “unclean” by the improper purpose of the

lawsuit.    The court did not suggest that the plaintiff’s motive

(. . . continued)

evidentiary rules to prohibit impeachment with evidence that the plaintiff is
seeking monetary relief in the case, which is not relevant to a plaintiff’s
credibility. As stated, evidence that the plaintiff possesses an ulterior
motive for filing the suit is relevant to a plaintiff’s credibility and,
absent some other evidentiary bar, wholly admissible for impeachment
purposes.




                                     26
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


for bringing suit could be relevant to the plaintiff’s

credibility, but rather that it could be relevant to an

equitable defense--one of the purposes that our analysis

specifically identified as permissible.          Similarly, the dissent

quotes a passing reference in dicta in the unpublished opinion

of Caldwell v. Wal-Mart Stores, Inc., No. 99-2272, 2000 WL

1335564, at 5* (10th Cir. Sept. 15, 2000), in which the court

stated that the plaintiff’s financial motivation for filing suit

was irrelevant “[a]bsent some evidence of fraud.”            The sole case

the Caldwell court cited for this proposition concerned evidence

of the plaintiff’s financial motive to commit arson--a potential

defense in his action against his insurance company that was

very similar to the clean hands defense considered in Valdez,

which again is consistent with the exception recognized in our

analysis.    See C.L. Maddox, Inc. v. Royal Ins. Co. of Am., 567

N.E.2d 749, 755 (Ill. App. 1991).20

            The dissent also cites Yates v. Sweet Potato

Enterprises, Inc., Case No: C 11-01950 SBA, 2013 WL 4067783, at

     20
            It is also noted that, in reaching its holding, the Caldwell
court considered the Gaudin v. Shell Oil Co. decision discussed supra note
10. 2000 WL 1335564, at *5 n.4 (citing 132 F.R.D. 178, 179 (E.D. La. 1990)).
The Caldwell court specifically disclaimed Gaudin’s admission of evidence
intended to show that the plaintiff “had an improper [financial] motive in
bringing the suit,” describing the holding as “remarkable, to say the least.”
Id. (emphasis added). Thus, even some of the cases on which the dissent
relies reject an approach that equates evidence of a plaintiff’s motivation
for bringing suit with evidence that the suit is fraudulent.




                                     27
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


*2 (N.D. Cal. Aug. 1, 2013), an unpublished trial order on

motions in limine, which explicitly addressed only evidence of

the plaintiff’s “prior litigation activities”--not the

plaintiff’s motivation for bringing the case in which the

evidence was offered.     Further, in ruling that the evidence was

admissible, the Yates court stated, “A claim for money damages

does create a financial incentive to be untruthful, and it was

not improper for opposing counsel to invoke this incentive in an

attempt to impeach plaintiff.”       Id. at *4 (quoting Marcic v.

Reinauer Transp. Cos., 397 F.3d 120, 125 (2d Cir. 2005)).             This

statement is plainly at odds with our holding in Kobashigawa

prohibiting impeachment of a plaintiff-witness with evidence of

a financial motivation for bringing suit.         129 Hawaii at 334,

300 P.3d at 600.    Further, its overbreadth is apparent on its

face; if evidence of a plaintiff’s motive for bringing suit is

admissible for impeachment purposes whenever a plaintiff seeks

monetary damages, admittance of evidence of motive would be the

rule in nearly all civil cases rather than the exception.

Another unpublished order cited by the dissent, Beyar v. City of

New York, No. 04-CV-3765 (JFB)(KAM), 2007 WL 1959010 (E.D.N.Y.

June 29, 2007), denied a post-trial motion for new trial or to

set aside the verdict, relying on the same passage cited in

Yates that we rejected in Kobashigawa.         Id. at *4.    The Beyar

court also hedged its conclusions, stating that the jury

                                    28
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


instructions cured the potential prejudice “even if defense

counsel’s remarks were improper.”         Id.

            In all, it is clear the dissent’s rule has not been

adopted in numerous jurisdictions.         At most, it finds some scant

support in two unpublished orders that rely on an interpretation

of relevance that this court squarely rejected in Kobashigawa.

            Aside from the doctrinal shortcomings in the dissent’s

approach, it also raises a host of intractable procedural

problems.    The dissent’s criterion to admit evidence of a

plaintiff’s financial motive appears to be virtually bottomless:

“when there is evidence to support” that the lawsuit may have

been filed in bad faith or with fraudulent intentions.            Dissent

at 3, 8.    Thus, it appears that any evidence to support such an

inference would be sufficient.       In this case, the evidence at

trial raised questions as to (1) whether Medeiros was present at

the accident scene, (2) where she was sitting at the time of the

collision, (3) whether she was facing sideways during the

impact, and (4) whether she sustained the injuries claimed.                The

number of similar issues in personal injury cases in which there

may be evidence triggering the dissent’s rule would render the

test for admissibility virtually meaningless.21



     21
            See supra notes 13-16.




                                     29
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


           Assuming that the “evidence to support” standard does

not essentially make the evidence of bringing a lawsuit to seek

financial relief automatically admissible, the dissent offers no

specifics as to how the admissibility determination is made,

such as: what evidence should be considered by the court in

making its determination; what burden of proof applies to show

that the suit was filed fraudulently or in bad faith; and at

what stage of the litigation the assessment should take place.

If the evaluation amounts to a preliminary determination under

HRE Rule 104 (1984),22 the dissent’s rule would seemingly require

a judge to conduct a miniature trial prior to the actual trial

under the semblance of an HRE Rule 104 proceeding, hearing the

same witnesses and considering the same evidence that would be

presented at trial in order to make a preliminary ruling as to

whether there is sufficient evidence (on seemingly ultimate

issues in the case) to admit evidence of financial motive to

bring the suit.23     This procedural mire would all be for the

      22
            HRE Rule 104 primarily addresses the “determination of . . . a
preliminary fact,” whereas the evaluation called for by the dissent as to the
presence of fraud would appear to be at best a mixed question of fact and
law. It is far from clear that such a determination would fall within the
scope of HRE Rule 104, and if not some other means unspecified by the dissent
would need to be employed.
     23
            Here, the preliminary assessment would require the trial judge to
consider, at minimum, the testimony of Medeiros, Aggasid, Choy, Choy’s wife,
and Officer Brown. An accurate determination would likely also require the
judge to hear from Medeiros’s doctor and other personnel who handled
Medeiros’s worker’s compensation claim to determine whether Medeiros’s
injuries reasonably could have arisen from the collision.



                                     30
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


purpose of determining the admissibility of evidence without any

probative value.24

           Moreover, the “basic precondition for admissibility of

all evidence,” is that it is “‘relevant’ as that term is defined

in [HRE] Rule 401.”      Commentary to HRE Rule 402 (1980) (emphasis

added).   As stated, seeking financial relief in a lawsuit does

not make it more or less likely that a plaintiff is testifying

untruthfully or that the relief is sought in bad faith or for

the purpose of committing fraud, and therefore such evidence is

not relevant under HRE Rule 401.          The dissent does not dispute

this basic principle, yet repeatedly asserts that “evidence of a

plaintiff’s motive in filing suit may be relevant to the

plaintiff’s credibility in narrow circumstances where there is

evidence to support that the plaintiff dishonestly sought relief

that he or she knew that he or she was not entitled to, at the

expense of another.”      Dissent at 13.      But because evidence of a

plaintiff’s motive in seeking financial relief in a lawsuit is

not a fact of consequence to the plaintiff’s credibility (i.e.,

it does not make it more or less likely that the plaintiff is

testifying truthfully or that the lawsuit is brought in bad

     24
            Procedural questions also arise regarding the effect that the
evidence would be given once it is admitted, such as whether jurors would be
required to disregard the plaintiff’s motive for bringing the lawsuit in
determining the elements of the plaintiff’s claim if they find that the suit
had not been brought fraudulently or in bad faith.




                                     31
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


faith), the dissent essentially applies a definition of

“relevant” other than the one prescribed in HRE Rule 401.

However, it is the HRE that govern proceedings in the courts of

this state, subject only to exceptions not applicable here.                 HRE

Rules 101, 1101(a), (b) (1980).        And these Rules do not permit

the admission of evidence that does not satisfy HRE Rule 401,

nor do the Rules countenance a court-created exception for

“extraordinary cases,” regardless of the breadth of the

exception advocated.

           Thus, the dissent’s approach is legally flawed and has

no basis in our well-established precedent.           The cumbersome

obstacles and potential for unwarranted prejudice it would

introduce confirms what the U.S. Supreme Court observed over a

century ago: “If the law concerned itself with the motives of

parties new complications would be introduced into suits which

might seriously obscure their real merits.”           Dickerman v. N. Tr.

Co., 176 U.S. 181, 190 (1900).

2.          The Accuracy and Applicability of Medeiros’s Requested
                  Instruction to Issues in the Case

           Medeiros proposed that the jury be instructed that it

“may not consider the Plaintiff’s motives in bringing the

lawsuit.   So far as the law is concerned, if the Plaintiff has

made out a case on the facts, it is immaterial what her motive

was.”   This is a correct statement of the law as it applied to


                                     32
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


this case.   Choy offered no evidence indicating that Medeiros

had any motivation for bringing the action other than obtaining

the monetary relief she sought.       The jury therefore should not

have been permitted to consider in its deliberations Medeiros’s

motives for bringing suit.

          Choy argues that regardless of the accuracy of the

instruction as a statement of law, the court was not obligated

to include it in its charge to the jury because it was not

applicable to the issues raised during trial.          But as Choy

admits, he sought to elicit evidence for the purpose of

demonstrating that Medeiros committed worker’s compensation

fraud for monetary gain and that the lawsuit was similarly

motivated.   Without the requested instruction, a jury could

readily believe that the lawsuit was part of that alleged scheme

and thus shared a common motivation--indeed, Choy encouraged the

jurors to so conclude, stating in closing argument that the jury

would not be proud of a verdict in Medeiros’s favor because it

would “accomplish[] exactly what she set out to accomplish the

moment she informed Dr. Miscovich she was in a car accident and

then convert it to a workers’ compensation claim.”

          Alternately, a juror might believe that Medeiros

became emboldened by the success of her initial worker’s

compensation fraud and decided to extract further monetary gain

from the same fabrication by bringing a lawsuit.           Under HRE Rule

                                    33
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


404(b) (1994), evidence of past wrongs is inadmissible to prove

a person’s character in order to show actions in conformity

therewith.     The absence of the requested jury instruction

allowed the jury to infer such an impermissible connection

between the allegedly fraudulent worker’s compensation claim and

the lawsuit.     Further, a juror unfamiliar with the functioning

of the worker’s compensation regime might believe the lawsuit

was in some way needed to fulfill Medeiros’s legal obligations

resulting from the payment of the worker’s compensation claim--a

misconception Choy potentially reinforced by asserting in

closing argument that Medeiros was attempting to hold him

“responsible for reimbursing that false claim.”25           Without the

requested instruction, a jury could base its verdict on this

erroneous understanding.

           Given the substantial possibility that the jury would

consider the evidence adduced as it related to Medeiros’s

motives for bringing suit, Medeiros’s proposed instruction was

applicable to the issues raised by the case.           See Radford v.

Morris, 52 Haw. 180, 186, 472 P.2d 500, 504 (1970) (holding that

an instruction was required because “without the instruction the


     25
            Although Medeiros’s employer would have had a right to recoup its
expenditures from any recovery Medeiros received from Choy, our worker’s
compensation laws do not mandate that an injured worker file suit against a
responsible third party. See Hawaii Revised Statutes § 386-8 (2015).




                                     34
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


jury could [make] erroneous[] assum[ptions]” about the

applicable law).    In essence, the circuit court implicitly

acknowledged the potentiality for misuse of the evidence when it

denied Medeiros’s requested instruction.         The court noted that

it would reconsider the request if Choy mentioned Medeiros’s

motives for bringing suit in his closing argument.           But in

recognizing the possibility of Choy arguing about Medeiros’s

motives in closing argument, the court effectively found that

inferences about Medeiros’s motives could be made from the

evidence.   See State v. McGhee, 140 Hawaii 113, 119, 398 P.3d

702, 708 (2017).    This recognition of the state of the evidence

necessitated the timely submission of the requested jury

instruction to restrict the jury from using that evidence to

consider Medeiros’s motive in bringing her claim.           See Hawaii

Rules of Civil Procedure Rule 51(c)-(d) (2000) (setting forth a

settlement and revision process to take place “prior to

[counsel’s] arguments to the jury”).        The court was not at

liberty to defer its submission of the instruction based on the

extent that the closing argument dwelled on the alleged improper

motive in bringing the lawsuit.

            Thus, because the jury instruction was a correct

statement of the law, was applicable to the issues presented,

and was not covered by other instructions, the circuit court was

required to submit it to the jury.        Gibo v. City & Cty. of
                                    35
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Honolulu, 51 Haw. 299, 304, 459 P.2d 198, 201 (1969).            We

presume that the court’s failure to do so was prejudicial unless

it affirmatively appears that the error was harmless.            Nelson v.

Univ. of Haw., 97 Hawaii 376, 386, 38 P.3d 95, 105 (2001).

Considering the record as a whole and in light of Choy’s closing

argument, the failure to submit the instruction was not

harmless.   See Kobashigawa v. Silva, 129 Hawaii 313, 334, 300

P.3d 579, 600 (2013) (holding that the “City’s closing argument

added to the harm caused by the circuit court’s erroneous jury

instruction” (quoting Kobashigawa v. Silva, 126 Hawaii 62, 66-

67, 266 P.3d 470, 474-75 (App. 2011))); see also id. (stating

that “in conjunction with the lower court’s failure to properly

instruct the jury, a defense counsel’s reference to the

plaintiff’s motive in bringing suit was grounds for a new trial”

(citing Kakligian v. Henry Ford Hosp., 48 Mich. App. 325, 210

N.W.2d 463, 465 (1973))).

   B. Restricting Consideration of Motive for Bringing Suit on
 Remand Will Address the Prejudice that the ICA Ascribed to the
                      Challenged Testimony.

            Choy argues that the ICA erred in holding that the

circuit court abused its discretion in admitting testimony

regarding the presence of a child and the retrieval and




                                    36
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


installation of a car seat in the backseat of Aggasid’s

vehicle.26

             As an initial matter, the ICA held that the issue of

Medeiros’s presence in Aggasid’s vehicle at the time of the

accident was inseparable from her motives for filing suit, and

that under Kobashigawa, these motives were immaterial.             The ICA

concluded that the testimony regarding the child and the

retrieved car seat was therefore not admissible for the purpose

of proving Medeiros’s presence in the vehicle at the time of the

accident (although the court ultimately held that the evidence

was relevant to show the parties’ position in the vehicle when

the accident occurred).      However, Medeiros’s alleged absence

from the vehicle bore on more than simply her motives for

bringing suit.     If true, Medeiros’s absence would definitively

settle the issue of causation because Medeiros could not have

been injured by Choy if she was not present in Aggasid’s vehicle


     26
             Choy contends that Medeiros did not properly preserve this issue
because the circuit court’s denial of Medeiros’s motion in limine was not a
definitive ruling on admissibility and Medeiros did not renew her objection
when testimony concerning the challenged subject matter was elicited at
trial. See Craft v. Peebles, 78 Hawaii 287, 295, 893 P.2d 138, 146 (1995)
(holding that, absent a definitive pretrial ruling on admissibility, a
renewed objection at trial is required to preserve the issue for appellate
review). Medeiros responds that, because Choy did not argue this point
before the ICA, his argument is itself waived. See Hawaii Rules of Appellate
Procedure Rule 28(b)(7) (2016) (specifying that arguments not raised before
the ICA may be deemed waived). In light of our disposition of this case, it
is not necessary to address whether the challenge to the testimony’s
admissibility was properly preserved or whether the issue of preservation has
been waived.




                                     37
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


at the time of the collision.        Whether Medeiros was present was

thus of great consequence in determining the action, and

evidence bearing on her presence in the vehicle was relevant.27

           The ICA held that the circuit court abused its

discretion by failing to exclude the testimony under HRE Rule

403 (1993).    HRE Rule 403 provides that even “relevant[]

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative

evidence.”    Unfair prejudice “means an undue tendency to suggest

decision on an improper basis, commonly, though not necessarily,

an emotional one.”      Samson v. Nahulu, 136 Hawaii 415, 430, 363

P.3d 263, 278 (2015) (quoting HRE Rule 403, Commentary).



     27
            Choy argues at length that the testimony regarding the presence
of a child also demonstrates that Medeiros filed a fraudulent worker’s
compensation claim, and that this bears on her credibility as a witness. HRE
Rule 608(b) (1993) permits witnesses to be impeached by specific instances of
conduct that are probative of untruthfulness. The allegations of worker’s
compensation fraud have very minimal probative value with respect to
Medeiros’s credibility because they have largely the same factual predicate
as the ultimate issue in this case--namely, whether Medeiros was injured in
the January 23, 2007 accident that Choy caused. In other words, the issue
would have very little bearing on Medeiros’s credibility because Medeiros’s
presence or absence from the collision is determinative both of her claim and
the alleged fraud. Consequently, any probative value the allegations have on
Medeiros’s character for veracity is far outweighed by the potential for the
jury to improperly consider the evidence with respect to Medeiros’s motives
for bringing suit. See supra. Thus, even if the evidence were admissible
for this purpose under HRE Rule 608(b), it would undoubtedly be excluded
under HRE Rule 403.




                                     38
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


           The ICA concluded that the probative value of the

testimony regarding the child and retrieved car seat was

substantially outweighed by its potential for creating unfair

prejudice against Medeiros because the circuit court did not

provide Medeiros’s requested jury instruction, which permitted

Choy to frequently reference the evidence in conjunction with

Medeiros’s allegedly improper motives.          Choy’s remarks

throughout the trial created a substantial likelihood that the

jury would consider the evidence for an improper purpose, the

ICA held.28   In light of our remand for a new trial, the same

consideration should not arise given our ruling that the jury

must be instructed to not consider the Plaintiff’s motives in

bringing the lawsuit.      Consequently, the challenged testimony on

remand would not be excludable under HRE Rule 403 based solely

on the concern that the jury would consider the evidence as it

bears on Medeiros’s motivation for bringing suit.29



     28
            It is noted that the ICA erred to the extent that it considered
Choy’s comments during closing arguments as part of its evaluation in
determining the admissibility of the challenged testimony under HRE Rule 403.
     29
            At trial, Choy elicited testimony and made comments in his
closing argument indicating that the child alleged to be present in Aggasid’s
vehicle was not properly restrained prior to and during the accident.
Additionally, Choy has made numerous references to the allegedly unrestrained
status of the child in his filings on appeal and to this court. Although we
have determined that evidence regarding the alleged presence of the child and
the retrieval of a car seat would not be excludable under HRE Rule 403 on the
ground that the jury would potentially consider the evidence with respect to
Medeiros’s motivation in bringing suit--as the jury would be instructed that
it may not consider the evidence for this purpose--testimony or argument as

                                                             (continued . . .)

                                     39
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


                               IV. CONCLUSION

             For the foregoing reasons, we hold that the jury

 should have been instructed to disregard Medeiros’s motives for

 bringing suit, and the circuit court’s failure to do so was

 prejudicial error.      We therefore affirm the ICA’s July 13, 2016

 judgment on appeal and remand the case to the circuit court for

 further proceedings consistent with this opinion.


Thomas Tsuchiyama                       /s/ Sabrina S. McKenna
for petitioner
                                        /s/ Richard W. Pollack
Derek S. Nakamura
for respondent                          /s/ Michael D. Wilson




 (. . . continued)

 to the safety risk of an unrestrained child, violation of safety laws, or
 endangerment of a child would be subject to HRE Rules 401 and 403 on retrial.




                                      40
