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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-15-0000783
                                                              10-MAY-2017
                                                              08:06 AM




                            SCAP-15-0000783

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                 RESEARCH INSTITUTE FOR HAWAII.USA
          and CHRISTOPHER DAMON HAIG as an individual,
              Plaintiffs-Appellants-Cross-Appellees,

                                    vs.

  KAY LORRAINE BATE; LINDA HAMILTON KRIEGER, RAYMUND LIONGSON,
        KIM COCO IWAMOTO, WALLACE FUKUNAGA, ARTEMIO BAXA,
      in their official capacities as Commissioners of the
      Hawai#i Civil Rights Commission, Department of Labor &
   Industrial Relations, State of Hawai#i; WILLIAM D. HOSHIJO,
  in his official capacity as Executive Director of the Hawai#i
    Civil Rights Commission, Department of Labor & Industrial
  Relations, State of Hawai#i; HAWAI#I CIVIL RIGHTS COMMISSION,
  DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS, STATE OF HAWAI#I,
               Defendants-Appellees-Cross-Appellants.


       APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
              (CAAP-15-0000783; CIV. NO. 14-1-2014)

                    SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J, Nakayama, McKenna, Pollack, and Wilson, JJ.)

          Plaintiffs-Appellants-Cross-Appellees Research

Institute for Hawaii.USA (RIHI) and Christopher Damon Haig, as an
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individual (Haig) (collectively “Appellants”) appeal, and

Defendants-Appellees-Cross-Appellants Kay Lorraine Bate (Bate),

Linda Hamilton Krieger, Raymund Liongson, Kim Coco Iwamoto,

Wallace Fukunaga, and Artemio Baxa, in their official capacities

as Commissioners of the Hawai#i Civil Rights Commission (HCRC),

and William D. Hoshijo, in his official capacity as Executive

Director of the HCRC (collectively “Cross-Appellants”) cross-

appeal the Circuit Court of the First Circuit’s (circuit court):

(1) October 8, 2015 Order Granting Plaintiff-Appellant Research

Institute for Hawaii.USA’s Motion for Order Compelling (a)

Independent Medical Examination of Kay Lorraine Bate and (b)

Production of Dr. Robert Marvit’s Expert File (“IME Order”), and

(2) October 15, 2015 Case Management Order (“Case Management

Order”).

           On August 26, 2014, following a nine-day contested case

hearing, the HCRC issued a final decision and order which found

that Appellants had illegally discriminated against Bate on the

basis of her religion and her gender, and awarded Bate both legal

and equitable relief.     On September 24, 2014, Appellants filed,

in the circuit court, a petition for appeal and a demand for a

jury trial de novo on all of the claims upon which Cross-

Appellants sought relief, citing SCI Management Corp. v. Sims,

101 Hawai#i 438, 71 P.3d 389 (2003), in support of their

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entitlement thereto.

           On June 10, 2015, Appellants filed a pre-trial motion

for an order compelling Bate to undergo an independent medical

examination and to produce the expert file of Dr. Robert Marvit

(Dr. Marvit) (“Motion for IME”).         At the HCRC contested case

hearing, Dr. Marvit testified about the emotional injuries Bate

had suffered as a result of Appellants’ discriminatory acts.

Appellants argued that the Motion for IME should be granted

because Bate had placed her emotional state in controversy by

stating she had suffered emotional and mental distress, Bate did

not disclose Dr. Marvit as an expert whom she intended to call

until shortly before the originally scheduled contested case

hearing date, and Bate did not comply with their request to

produce the medical records that supported her emotional distress

claims during discovery in preparation for the contested case

hearing.

           Cross-Appellants responded on July 21, 2015, arguing

that the Motion for IME should not be granted because the circuit

court did not have the authority to permit additional discovery

because the jury trial was an administrative appeal under Hawai#i

Revised Statutes § 368-16, Appellants already had the opportunity

to conduct full discovery in the contested case proceedings, and

Cross-Appellants agreed to release Bate’s medical records on the

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condition that Appellants acquiesced to a protective order

covering the private information therein.         Appellants did not

reply to Cross-Appellants’ response.

           The dispute concerning the Motion for IME revealed that

the parties fundamentally disagreed on the nature and scope of

the jury trial.    After the parties briefed their positions on

these matters and submitted proposed case management orders, the

circuit court filed the IME Order on October 8, 2015, and the

Case Management Order on October 15, 2015.

           In the IME Order, the circuit court acknowledged that

in the HCRC contested case proceedings, Bate belatedly identified

Dr. Marvit as an expert witness, and that Appellants may have

been prejudiced by their inability to obtain a rebuttal expert.

Accordingly, the circuit court granted Appellants’ Motion for

IME.   However, the circuit court specifically stated that its

ruling was limited to Appellants’ singular discovery request.

           In the Case Management Order, the circuit court ruled,

in pertinent part: (1) the jury trial was to be de novo as to all

claims for which legal relief was granted; (2) there would be no

further discovery; (3) the evidence to be presented at trial,

including witness testimony, was to be limited to the evidence

that was presented at the contested case proceeding, and; (4) the

parties were only entitled to limited discovery concerning Bate’s

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emotional injuries, and the experts whom they sought to testify

thereon, in light of the unique problems that arose out of

discovery in the HCRC proceedings.

          The parties jointly obtained leave from the circuit

court to file interlocutory appeals from the IME Order and the

Case Management Order.     Appellants and Cross-Appellants filed

their appeal and cross-appeal, respectively, in the Intermediate

Court of Appeals.    The case was thereafter transferred to this

court.

          On appeal, Appellants argue that the circuit court

erred by: (1) finding that Appellants are entitled to a jury

trial only on the claims for which legal relief was granted; (2)

finding that the parties, in the jury trial, could only present

witnesses who had previously testified during the HCRC contested

case hearing, and that the testimony of such witnesses shall be

limited to the testimony that was given in the HCRC proceedings;

(3) finding that the parties may not conduct any further

discovery in preparation for the jury trial, and not allowing the

parties to introduce evidence beyond that which was contained in

the HCRC record; (4) finding that Haig remains a defendant in the

jury trial, and; (5) finding that Haig was not permitted to

introduce witness testimony and other evidence to rebut the HCRC

and Bate’s contentions as to Haig’s net worth at the time of the

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jury trial on the issue of punitive damages.          On cross-appeal,

Cross-Appellants contend that the circuit court erred in allowing

discovery beyond the administrative record from the contested

case proceedings.

           Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised, we conclude that

the circuit court did not abuse its discretion in the IME Order

or the Case Management Order.       Accordingly, we affirm both

Orders.

           Additionally, Appellants’ fourth point of error

concerns an issue that exceeds the scope of the present

interlocutory appeal.     The circuit court did not rule on whether

Haig should remain a defendant in the jury trial in either the

Case Management Order or the IME Order.         Accordingly, because the

issue of Haig’s individual liability was not resolved in the

orders from which the parties filed their interlocutory appeals,

we lack subject matter jurisdiction to consider the issue at this

time.   See Sec. Pac. Mortg. Corp. v. Miller, 71 Haw. 65, 71, 783

P.2d 855, 858 (1989); Riethbrock v. Lange, 128 Hawai#i 1, 17-18,

282 P.3d 543, 559-560 (2012).       Therefore,

           IT IS HEREBY ORDERED that the circuit court’s

October 8, 2015 Order Granting Plaintiff-Appellant Research

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Institute for Hawaii.USA’s Motion for Order Compelling (a)

Independent Medical Examination of Kay Lorraine Bate and (b)

Production of Dr. Robert Marvit’s Expert File, and October 15,

2015 Case Management Order are affirmed.

          DATED:    Honolulu, Hawai#i, May 10, 2017.

Bruce D. Voss, Leinaala L.               /s/ Mark E. Recktenwald
Ley and William F. Sink for
Plaintiffs-Appellants-                   /s/ Paula A. Nakayama
Cross-Appellees
                                         /s/ Sabrina S. McKenna
Margery S. Bronster,
Rex Y. Fujichaku, and                    /s/ Richard W. Pollack
Derek S. Nakamura for
Defendants-Appellees-                    /s/ Michael D. Wilson
Cross-Appellants




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