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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-30082
                                                              25-JAN-2013
                                                              10:45 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


            RICK RALSTON, Respondent/Plaintiff-Appellant,

                                    vs.

     ERROL Y.W. YIM, D.D.S., Petitioner/Defendant-Appellee.


                               SCWC-30082

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (ICA NO. 30082; CIV. NO. 08-1-0934)

      RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ.,
     AND CIRCUIT JUDGE AHN, IN PLACE OF POLLACK, J., RECUSED

                            JANUARY 25, 2013

              OPINION OF THE COURT BY RECKTENWALD, C.J.

            This appeal requires us to consider the evidentiary

burden that must be satisfied before summary judgment can be

granted.    Plaintiff Rick Ralston sued his dentist, Dr. Errol Y.W.

Yim, claiming that Dr. Yim had negligently provided him with

orthodontic care to correct overcrowding in his lower front
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teeth.

           Dr. Yim moved for summary judgment.           At the first

hearing on the motion, the circuit court sua sponte ordered a

continuance pursuant to Hawai#i Rules of Civil Procedure (HRCP)

Rule 56(f) to allow Ralston to submit an expert’s affidavit

establishing that Dr. Yim failed to meet the applicable standard

of care.   Prior to the next hearing, Ralston’s counsel submitted

an unauthenticated report by Dr. Harry Aronowitz, which stated

that Dr. Yim did not meet the standard of care.            Dr. Yim filed

his reply and asserted that because Ralston had failed to provide

an expert affidavit, as required under HRCP Rule 56, summary

judgment should be granted.

           On the day before the continued hearing, Ralston’s

counsel submitted a faxed copy of an affidavit from Dr.

Aronowitz.   At the continued hearing, Dr. Yim argued that the

affidavit should be stricken because it was untimely, and further

asserted that it was inadmissible because it was a faxed copy and

not an original.    The circuit court agreed with Dr. Yim, and

stated that it had already given Ralston an opportunity to

continue the proceeding so that he could obtain a proper

affidavit.   The circuit court struck Ralston’s faxed affidavit,

denied Ralston’s further request for a HRCP Rule 56(f)

continuance, and granted summary judgment in favor of Dr. Yim.1


     1
           The Honorable Eden Elizabeth Hifo presided.

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            Ralston appealed, arguing, inter alia, that the circuit

court erred in granting summary judgment in favor of Dr. Yim

because it shifted the burden of proof to Ralston by requiring

that he submit an expert affidavit, even though Dr. Yim had not

come forward with evidence that he had met the standard of care.

The Intermediate Court of Appeals determined that Dr. Yim failed

to satisfy his initial burden as the summary judgment movant.

Ralston v. Yim, 128 Hawai#i 42, 45-51, 282 P.3d 584, 587-93 (App.

2012).    The ICA also noted that Ralston did not have “adequate

time” to conduct discovery, and that Ralston’s case was

accordingly distinguishable from the leading federal case of

Celotex Corporation v. Catrett, 477 U.S. 317 (1986) (noting that

“the plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial”).    Ralston, 128 Hawai#i at 50-51, 282 P.3d at 592-93.

Thus, the ICA vacated the circuit court’s final judgment and

remanded the case for further proceedings.          Id. at 52, 282 P.3d

at 594.

            In his application, Dr. Yim raises the following

question:
            Was it grave error for the ICA to excuse [Ralston’s]



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            failure to move for a [HRCP] Rule 56(f)[2] continuance
            and failure to authenticate exhibits containing expert
            opinions, by requiring Dr. Yim, in a summary judgment
            motion, to come forward with affirmative evidence
            establishing the standard of care and prove he did not
            violate said standard?

            We hold that the ICA did not err in vacating the

circuit court’s judgment.       As this court has previously

articulated, a summary judgment movant may satisfy his or her

initial burden of production by either (1) producing admissible

evidence to show there was no genuine issue of material fact, or

(2) showing that the non-moving party cannot carry his or her

burden of proof at trial.       French v. Hawaii Pizza Hut, Inc., 105

Hawai#i 462, 470-72, 99 P.3d 1046, 1054-56 (2004).            However, as

the ICA pointed out, the movant generally cannot support its

initial burden of production by pointing solely to the non-moving

party’s lack of evidence if discovery has not concluded.

            However, the ICA’s discussion of the United States

Supreme Court’s decision in Celotex could be read to suggest that

summary judgment may be appropriate prior to a discovery deadline

if the non-movant has had “adequate time to conduct discovery and



      2
            HRCP Rule 56 governs summary judgment.   HRCP Rule 56(f) (2009)
provides:

                  When affidavits are unavailable. Should it
            appear from the affidavits of a party opposing the
            motion that the party cannot for reasons stated
            present by affidavit facts essential to justify the
            party’s opposition, the court may refuse the
            application for judgment or may order a continuance to
            permit affidavits to be obtained or depositions to be
            taken or discovery to be had or may make such other
            order as is just.

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to identify experts.”     Ralston, 128 Hawai#i at 51 n.11, 282 P.3d

at 593 n.11.   Such a rule would be inconsistent with this court’s

case law and the rules governing summary judgment.           First,

granting summary judgment on the ground that the non-movant

cannot presently satisfy his or her burden of proof would be

inconsistent with French, which requires a showing that the non-

movant cannot carry his or her burden of proof at trial.            Second,

the procedure for obtaining a continuance set forth in HRCP Rule

56(f) is the means by which a non-moving party can assure that he

or she has had “adequate time” to conduct discovery before the

motion is decided.    The ICA’s suggestion that “adequate time” is

a substantive requirement for the granting of a motion for

summary judgment could cause confusion as to the rights and

obligations of the parties under HRCP Rule 56(f).           Thus, we

conclude that HRCP Rule 56(f) is the proper procedure to request

and obtain additional time to respond to a motion for summary

judgment that is filed prior to the discovery deadline.

          Nevertheless, we conclude that the circuit court erred

in granting summary judgment since Dr. Yim did not satisfy his

initial burden of production.       Therefore, the judgment of the ICA

is affirmed.

                             I.   Background

          The following factual background is taken from the

record on appeal.


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A.   Circuit Court Proceedings

           On May 9, 2008, Ralston filed a civil complaint against

Dr. Yim in the circuit court.        He subsequently filed a First

Amended Complaint on May 13, 2008, and asserted:
           . . . .
           6.    On or about November 15, 2005, sixty-four year
                 old [] Ralston sought orthodontic dental care
                 with [Dr.] Yim, DDS to reduce crowding in
                 [Ralston’s] lower front teeth.
           7.    [Dr.] Yim’s treatment plan included extracting
                 [Ralston’s] lower lateral tooth (front tooth
                 #23) and using Invisalign aligners to move the
                 three remaining lower front teeth (front teeth
                 #24, 25, 26) to close the gap. As a result of
                 [Dr.] Yim’s negligent dental treatment,
                 [Ralston] lost the remaining three front teeth.
           8.    At no time did [Dr.] Yim advised [sic] [Ralston]
                 of the risk that [Ralston] could lose his three
                 lower front teeth.
           9.    [Dr.] Yim failed to advise [Ralston] of other
                 treatment alternatives and their respective
                 risks and advantages in order to enable
                 [Ralston] an informed decision. [sic]
           10.   As a result of [Dr.] Yim’s aforementioned
                 negligence, including dental treatment that fell
                 below the standard of care and failure to obtain
                 [Ralston’s] informed consent, [Ralston] has
                 suffered irreparable injury and harm from the
                 loss of his four natural front teeth.
           11.   The negligence of [Dr.] Yim was and is a legal
                 cause and/or substantial factor in causing
                 [Ralston’s] injuries and damages.
           . . . .

           Dr. Yim filed his answer denying the allegations

against him and asserting multiple defenses.

           On December 16, 2008, Ralston filed a pretrial

statement, which stated, “[a] dental expert will be designated

upon availability.”

           On April 1, 2009, the circuit court issued a Trial

Setting Status Conference Order, which set trial for

September 27, 2010.      The Order set the deadline for completion of

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discovery as July 27, 2010, pursuant to Rules of the Circuit

Court of the State of Hawai#i (RCCH) Rule 12(r).3           The deadline

for the exchange of experts’ reports was left blank in the Order.

The deadline for filing pretrial motions requesting entry of

judgment or dismissal of any claim was set for August 6, 2010,

pursuant to RCCH Rule 7(f).4

      1.    Motion for Summary Judgment

            On April 22, 2009, Dr. Yim filed a Motion to Dismiss5

and/or Motion for Summary Judgment (motion for summary judgment).

In his memorandum in support of the motion, Dr. Yim argued:
                   Hawaii law is clear that in this dental
            malpractice action, [Ralston] bears the burden of
            proof and moreover must prove any alleged breach of
            the standards of dental care through competent expert
            testimony. Moreover, [Ralston] must establish the
            materiality of any allegedly non-disclosed risk of
            treatment through competent expert testimony to
            establish the required elements of an informed consent
            claim.
                   Here, despite informal requests and
            interrogatories directed at such experts and the
            opinions to be offered against Dr. Yim, [Ralston] has
            disclosed neither the identity of any experts nor the
            substance of any opinions to be offered against Dr.
            Yim. Consequently, Dr. Yim is entitled to summary
            judgment in his favor and against [Ralston] based on
            well-settled Hawaii law.



      3
            RCCH Rule 12(r) (2005) provides, “Discovery shall be cut off 60
days before the assigned trial date.”
       4
            RCCH Rule 7(f) (2005) provides, “Unless otherwise ordered for good
cause shown, all pretrial motions that request entry of judgment or dismissal
of any claim shall be filed not later than 50 days prior to the assigned trial
date.”
      5
            Dr. Yim asserted that the lawsuit should be dismissed because the
circuit court lacked subject matter jurisdiction over the claim. Dr. Yim
argued that he was a “health care provider” within the meaning of HRS § 671-1,
and as such, Ralston was required to initially submit the claim against him to
the Medical Claims Conciliation Panel, pursuant to HRS § 671-12. Ralston
expressly abandons this theory on appeal.

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                Attached are [Ralston’s] responses to Dr. Yim’s
          two sets of interrogatories, in which absolutely no
          information is disclosed as to any expert or
          substantive expert opinion. . . .
                Dr. Yim respectfully submits that as [Ralston]
          has filed his pretrial statement of readiness and has
          proceeded to schedule a trial date, it is not
          premature to hold [Ralston] to his proof. Given the
          absence of admissible expert testimony to prove any
          alleged breach of the standard of care, or to prove
          the materiality of any allegedly undisclosed risk of
          treatment, Dr. Yim submits he is entitled to summary
          judgment in his favor.

          Dr. Yim attached copies of Ralston’s answers to his

interrogatories.    Attached as exhibit A was Ralston’s December 8,

2008 response to Dr. Yim’s November 3, 2008 First Interrogatories

to Plaintiff, which asked for each person whom Ralston expected

to call as an expert witness at trial and the substance of their

testimony.   In relevant part, Ralston responded that an “[e]xpert

report will be provided upon availability[.]”          Attached as

exhibit B was Ralston’s April 13, 2009 answers to Dr. Yim’s

March 12, 2009 Second Interrogatories to Plaintiff.           In response

to Dr. Yim’s interrogatory regarding any evidence, including

expert opinion testimony, that Ralston may rely on to prove the

materiality of risks or complications associated with the

Invasalign treatment, Ralston stated, “I will defer to the

expert’s opinion.”

          Ralston filed a memorandum in opposition to Dr. Yim’s

motion for summary judgment.      Ralston argued that,
          [d]iscovery is ongoing and the [Court Annexed
          Arbitration Program (CAAP)] deadline for the parties
          to exchange expert reports is not until May 22, 2009
          and [Ralston] will comply with this deadline. [Dr.
          Yim] has not met his burden of showing that no genuine


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          issue of material facts [sic] exists whether [Dr.
          Yim’s] orthodontic care was below the accepted
          standard of care and/or that [Ralston’s] informed
          consent was duly obtained.

(Emphasis added).

          Dr. Yim filed a reply, and again argued that, although

the case was pending for a year, Ralston failed to proffer any

admissible evidence that Dr. Yim violated the standard of care,

and accordingly, failed to establish a genuine issue of material

fact.

          The circuit court held a hearing on Dr. Yim’s motion on

May 13, 2009, and addressed the issue of Ralston’s lack of an

expert’s report.    The following discussion occurred:
          [Court]:    But may I ask you this, [Ralston’s
          counsel]: Isn’t it true that you said that you –- the
          time hasn’t yet come for you to name an expert?

          [Counsel for Ralston]: Yes, Your Honor. The deadline
          for the CAAP exchange of reports is May 22nd. And we
          had this discussion previously. I explained to [Dr.
          Yim’s counsel] that we’re going to comply with that
          deadline. And we didn’t want to have to do two
          reports. Because he’s taking depositions of all the
          treating dentists; and I wanted to have those
          transcripts to submit to our expert so he can
          formulate his final opinions and I didn’t want to do
          two reports, to save money, and he understood that.
          You know, we ask that the [c]ourt give deference to
          the CAAP arbitration deadlines.

          [Court]:     Well, actually, I’m not going to
          . . . because I think they’re two separate tracks and
          it would not be appropriate for me to do that. But
          I’m converting what you’re saying into a [HRCP] Rule
          56(f) request for a continuance until those deadlines
          have passed and until you get your expert -– or
          proposed expert, one or more, to review those
          transcripts.

          . . . .

          [Counsel for Dr. Yim]: [I]n fact, the expert report
          disclosure deadline was set by the CAAP arbitrator
          with the explicit statement by her that it was -– she


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      was anticipating the potential that would be the
      evidence presented at the hearing. We would submit
      that there are interrogatories, discovery outstanding,
      long since, that have not been answered. We’re not
      asking for a report. We put Plaintiffs to their proof
      on a motion for summary judgment. I would also submit
      that a [HRCP] Rule 56(f) request in this circumstance
      is arguably inappropriate given that, in fact, she is
      talking about an expert witness that she -– over who
      which [sic] she has control and who could have
      submitted a declaration or an affidavit or otherwise
      made some sort of showing on this motion. . . .

      [Court]:    Okay. But now I’d like to respond to that
      as follows: The fact that Interrogatories, expert
      Interrogatories – which are common practice, which is
      fine that you propounded – haven’t been answered, as
      to that you can bring a motion to compel. But beyond
      that, as to the idea that the time has passed for
      naming an expert, I have had a different case, it was
      a medical malpractice, where the plaintiffs therein
      had not provided any expert opinion; the Motion for
      Summary Judgment was brought; the time for such an
      expert opinion had passed; and knowing that, the
      plaintiffs’ attorney did not put in an expert opinion
      on the motion for summary judgment, which they could
      have done to defeat the motion, but responded only
      that they were going to ask for a request to extend
      the deadline for final naming, which they hadn’t done,
      so I granted the motion. But in this case, not only
      has the date not passed, and not only has there not
      been a motion to compel the answers to
      interrogatories, but Plaintiff has said they’re going
      to get that, and they want to use the transcripts of
      the treating physicians to present to the doctor that
      they’re going to use. So under those circumstances, I
      think I would be very remiss to grant a summary
      judgment because they don’t yet have that opinion.

      . . . .

      (Discussion off the record.)

      Back on the record. By agreement of counsel, inasmuch
      as the expert report that Plaintiffs are compelled to
      provide under the CAAP arbitration discovery deadline
      is due, I take it to be hand-delivered to [Dr. Yim’s
      counsel] on May 22nd. Is that right?

      [Counsel for Ralston]:   Yes.

      [Court]:    Then, by agreement, any supplemental to
      this motion, which we’re treating as summary judgment
      for lack of an expert report, is due May 27, 2009.
      And [Dr. Yim’s counsel] may either file a . . .
      supplemental reply on June 3rd if he finds that he
      didn’t get that report or that it doesn’t meet the
      requirements of [HRCP] Rule 56, or should he so


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            desire, withdraw that part of this motion because he
            did receive the report. And in any event, we’ll have
            a supplemental hearing on that part of the [HRCP] Rule
            56 motion[.]

            The circuit court continued the hearing on the motion

for summary judgment until June 17, 2009.

            On May 20, 2009, Ralston filed a supplemental

memorandum in opposition to Dr. Yim’s motion for summary

judgment.    Attached to his supplemental memorandum was the

declaration of his counsel, stating that attached thereto as

exhibits were “true and correct copies” of an expert’s report and

the expert’s curriculum vitae.        Attached as exhibit A was a

report submitted by Dr. Harry I. Aronowitz (Dr. Aronowitz

report), in which Dr. Aronowitz concluded that Dr. Yim’s

treatment was beneath the standard of care and caused the loss of

Ralston’s lower incisors.

            Dr. Yim filed his supplemental reply in support of his

motion for summary judgment on June 3, 2009.           Citing Eddins v.

Morrison, 105 Hawai#i 376, 378, 98 P.3d 247, 249 (App. 2004),6

Dr. Yim argued that Dr. Aronowitz’s report was inadmissible

hearsay because it was “not contained in affidavits or otherwise

made under oath or penalty of perjury[.]”          Accordingly, Dr. Yim

asserted that the circuit court should grant summary judgment in

his favor on all claims.       Alternatively, Dr. Yim contended that

      6
            In Eddins, the ICA determined, “Because Eddins did not present his
rebutting medical testimony by affidavit, or otherwise as would be admissible
in evidence, Eddins failed to carry his burden, and Dr. Morrison was entitled
to summary judgment as a matter of law.” Id. (citations omitted).

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“Dr. Aronowitz’s report would put in issue only those alleged

breaches of the standard of care as to which Dr. Aronowitz has

opined.”   Dr. Yim asserted that Ralston failed to articulate “any

viable theory of alleged negligent failure to obtain informed

consent to treatment, and similarly failed to establish by expert

evidence the materiality of any alleged undisclosed risk (which

came to pass).”    Accordingly, Dr. Yim argued that the circuit

court should grant summary judgment in his favor on counts

relating to informed consent, and limit the issues in dispute to

those matters contained in Dr. Aronowitz’s report.

           On June 16, 2009, Ralston filed a supplemental exhibit

in support of his memorandum in opposition to Dr. Yim’s motion.

Appended to Ralston’s supplemental exhibit in support of his

memorandum in opposition was a declaration of Ralston’s counsel.

Ralston’s counsel stated that attached to her declaration, as

Exhibit C, was a “true and correct copy of the Affidavit of Harry

Aronowitz, DMD, dated June 16, 2009.”        Exhibit C was a facsimile

copy of an affidavit by Dr. Aronowitz, signed and dated June 16,

2009 before a notary public, in which Dr. Aronowitz stated, “Dr.

Yim’s treatment of Mr. Ralston was below the standard of care and

this treatment resulted in the loss of Mr. Ralston’s lower

incisors.”

           At the continued hearing on June 17, 2009, Dr. Yim

orally moved for the court to strike Dr. Aronowitz’s affidavit


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because Ralston’s submission violated RCCH Rule 7(b),7 inasmuch

as it was filed less than three days before the hearing.             Dr. Yim

also noted that the affidavit was still inadmissible because it

was a facsimile copy authenticated by Ralston’s counsel.             Ralston

argued that he presented evidence of a medical opinion and that

the circuit court should overlook the “technicality” that the

affidavit was faxed and give him “leniency in terms of accepting

that supplemental [exhibit.]”        Dr. Yim asserted that Ralston was

on notice from June 3, 2009, when Dr. Yim submitted his

supplemental reply, that Dr. Aronowitz’s report was inadmissible.

The circuit court stated:
            . . . I agree with [Dr. Yim’s counsel] that the court
            did bend over backwards by construing the
            representations about not having an opinion because
            [Ralston’s counsel] thought that the CAAP track would
            trump, more or less, the regular requirements of the
            rules of civil procedure when faced with a motion for
            summary judgment. And now she knows it doesn’t, and
            I’m sure that will be a lesson well-learned.
                  But be that as it may, it’s also true that when
            we got the supplemental . . . [Eddins] makes it clear
            that an attorney cannot be the one, by declaration or
            otherwise, to authenticate the doctor’s opinion. That
            under [HRCP] Rule 56 there needed to be at least a
            declaration of the doctor authenticating that those
            opinions contained in his report are his. And that’s
            what was attempted to be cured with the lately filed
            supplemental.
                  In any event, I don’t think I’m at liberty to
            bend over backwards again and, therefore, the motion
            to strike on the basis made is granted, therefore, the
            motion for summary judgment is granted.

            Ralston then stated, “Your Honor, may I ask for one

last –-[,]” to which the circuit court responded, “56F request


      7
            RCCH Rule 7(b) provides in relevant part: “No party may file any
papers less than 3 days before the date set for the hearing unless otherwise
ordered by the court.”

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for continuance is denied.”

          On July 14, 2009, the circuit court entered an order

denying Dr. Yim’s motion to dismiss, granting Dr. Yim’s oral

motion to strike Dr. Aronowitz’s faxed affidavit pursuant to RCCH

Rule 7(b), and granting Dr. Yim’s motion for summary judgment.

     2.   Motion for Reconsideration

          Ralston subsequently filed a motion for reconsideration

of the circuit court’s order granting Dr. Yim’s motion for

summary judgment.    Ralston argued, inter alia, that the circuit

court’s order granting summary judgment was inconsistent with

this court’s decision in French because Dr. Yim, as the movant,

had the initial burden of producing admissible evidence that

there was no genuine issue of material fact.          Ralston argued

that, under French, “general allegations by [Dr. Yim] that no

genuine issue of material fact existed [are] not sufficient” to

meet the movant’s burden.      Ralston pointed out that Dr. Yim “did

not offer any defense expert opinion and did not include any

admissible evidence negating any element of [Ralston’s] claims or

that [Dr. Yim’s] dental treatment of [Ralston] did not fall below

the standard of care.”     Ralston also argued that granting summary

judgment would result in a “discovery windfall and significant

litigation advantage” to defendants inasmuch as a defendant could

file for summary judgment at the beginning of every case because

they have “nothing to lose and everything to gain[.]”            In


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addition, Ralston contended that there was no prejudice to Dr.

Yim in this case because he was given notice of Dr. Aronowitz’s

report prior to the hearing.        Attached to Ralston’s motion for

reconsideration was the original, signed affidavit of Dr.

Aronowitz, dated June 16, 2009.

            Dr. Yim filed an opposition to Ralston’s motion.            Dr.

Yim argued that Ralston “attempts to relitigate old matters and

makes arguments previous raised (or which certainly could and

should have been made) during the earlier proceedings.”             Dr. Yim

further argued that Ralston “already had ‘two bites of the

apple,’ and [Ralston] failed to take the opportunity - afforded

to him sua sponte by the [c]ourt, as [Ralston] himself admits -

to timely and substantively oppose Dr. Yim’s motion.”             In

addition, Dr. Yim asserted that Ralston’s reliance on French was

misplaced because French “did not involve a legal duty for which

breach must be proven only through expert evidence[.]”

            Ralston filed a reply, in which he asserted that under

HRCP Rule 60(b),8 the circuit court should exercise its

discretion to grant relief to Ralston.

            On August 19, 2009, the circuit court filed its order

denying Ralston’s motion for reconsideration.




      8
            HRCP Rule 60(b) provides courts with discretion to grant relief
from judgments or orders in specific circumstances.

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     3.   Motion to Tax Costs

          On September 4, 2009, Dr. Yim filed a motion to tax

costs against Ralston in the amount of $6,742.22, arguing that he

was entitled to costs as the prevailing party, pursuant to HRCP

Rule 54(d)(1)9 and HRS § 607-9.10        On September 21, 2009, Ralston

filed a memorandum in opposition to Dr. Yim’s motion to tax costs

and argued that the motion should be denied or alternatively

limited to amounts reasonable under the circumstances.             On

October 9, 2009, the circuit court filed its order granting in

part and denying in part Dr. Yim’s motion to tax costs, and

awarding costs in the amount of $3,878.36.



     9
          HRCP Rule 54(d)(1) provides:

          Except when express provision therefor is made either
          in a statute or in these rules, costs shall be allowed
          as of course to the prevailing party unless the court
          otherwise directs; but costs against the State or a
          county, or an officer or agency of the State or a
          county, shall be imposed only to the extent permitted
          by law. Costs may be taxed by the clerk on 48 hours’
          notice. On motion served within 5 days thereafter,
          the action of the clerk may be reviewed by the court.
     10
          HRS § 607-9 provides:

          No other costs of court shall be charged in any court
          in addition to those prescribed in this chapter in any
          suit, action, or other proceeding, except as otherwise
          provided by law.

          All actual disbursements, including but not limited
          to, intrastate travel expenses for witnesses and
          counsel, expenses for deposition transcript originals
          and copies, and other incidental expenses, including
          copying costs, intrastate long distance telephone
          charges, and postage, sworn to by an attorney or a
          party, and deemed reasonable by the court, may be
          allowed in taxation of costs. In determining whether
          and what costs should be taxed, the court may consider
          the equities of the situation.

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            On October 9, 2009, the circuit court also entered its

Final Judgment in favor of Dr. Yim and against Ralston on all

claims.

B.    ICA Appeal

            On appeal, Ralston raised three points of error:
            1.     By finding that [Ralston] did not have
                   admissible expert evidence and granting [Dr.
                   Yim’s motion for summary judgment], the trial
                   court erred in shifting the burden of proof to
                   the non-moving party, [Ralston], without
                   requiring that [Dr. Yim], as the movant, first
                   satisfy his burden of proof under the summary
                   judgment standard, namely, that there was no
                   breach of the standard of care or that no
                   genuine issue of material fact exists with
                   respect to the essential elements of [Ralston’s]
                   claims.
            2.     The trial court erred when it failed to find any
                   triable issues in the submissions by the
                   parties, including with respect to the issue of
                   informed consent.
            3.     The trial court erred when it granted costs to
                   [Dr. Yim] because [Dr. Yim] should not have
                   prevailed in his motion for summary judgment.

            Ralston argued that Dr. Yim bore the initial burden of

proof under the summary judgment standard.11           Under this

standard, Ralston argued, Dr. Yim was required to (1) “show[]

through affidavit, deposition, or other evidentiary materials,

that there is no genuine issue of material fact[,]” or (2) show

that Ralston would be unable “to carry his burden at trial.”

Ralston asserted that Dr. Yim (1) failed to submit admissible

evidence that Dr. Yim’s dental treatment met the standard of

care, and (2) provided only “general allegations” that Ralston

      11
            Although Ralston asserts that Dr. Yim failed to meet his burden of
proof, the substance of his argument appears to be that Dr. Yim did not meet
his burden of production.

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could not carry his burden at trial.        Accordingly, Ralston

argued, summary judgment was not appropriate.          Ralston also

argued that allowing Dr. Yim to prevail under these circumstances

would encourage defendants to “file for summary judgment early in

every case, even before sufficient discovery could be done[.]”

          In addition, Ralston argued that the circuit court

erred in failing to find any triable issues in the submissions of

the parties.   Specifically, Ralston argued that the circuit court

should not have disregarded Dr. Aronowitz’s report “based

entirely upon a technicality as to the form and timing of the

submission,” because the substance of the report rebutted Dr.

Yim’s argument that Ralston would be unable to prevail at trial.

Ralston also argued that summary judgment was inappropriate on

the issue of informed consent based on Ralston’s answers to Dr.

Yim’s interrogatories, in which Ralston stated that he was “not

properly informed” of the risk of the treatment.           Finally,

Ralston argued that the circuit court erred in granting Dr. Yim

costs as the prevailing party because Dr. Yim should not have

prevailed on the motion for summary judgment.

          In his answering brief, Dr. Yim argued that Ralston had

the burden of proving the malpractice claim with admissible

expert evidence, and that Ralston’s failure to submit any

admissible evidence within the briefing schedule set by the

circuit court appropriately resulted in the circuit court


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granting summary judgment.         Dr. Yim then asserted that Ralston

waived his argument that the circuit court abused its discretion

in striking Dr. Aronowitz’s affidavit under HCCR Rule 7(a)

because Ralston had not raised it as a point of error.                 In

addition, Dr. Yim argued that Ralston “misapprehend[ed] the

procedure and relative burdens of production, persuasion and

proof in connection with Dr. Yim’s motion for summary judgment.”

Dr. Yim specifically asserted that he did not have an obligation

to submit affidavits in support of his motion for summary

judgment when he could “demonstrate the absence [of] an issue of

material fact ‘by showing that if the case went to trial, there

would be no evidence to support the non-movant’s position.’”                 Dr.

Yim asserted that he had satisfied his burden by showing that

Ralston lacked the requisite expert evidence.             Dr. Yim further

contended that the present case was analogous to the United

States Supreme Court’s decision in Celotex,12 and consistent with

this court’s holding in French.          Dr. Yim concluded that he had


      12
            Celotex is discussed in detail infra.   The portion of Celotex
cited by Dr. Yim states:

              [W]e find no express or implied requirement in Rule 56
              that the moving party support its motion with
              affidavits or other similar materials negating the
              opponent’s claim. . . . [R]egardless of whether the
              moving party accompanies its summary judgment motion
              with affidavits, the motion may, and should, be
              granted so long as whatever is before the district
              court demonstrates that the standard for the entry of
              summary judgment, as set forth in Rule 56(c), is
              satisfied.

Id. at 323.

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met his initial burden of production by “detailing the absence of

any admissible evidence to raise a triable issue as to dental

negligence.”

          Ralston filed a reply brief and argued that, as the

movant, Dr. Yim was required to first submit admissible evidence

to show the existence of a genuine issue of material fact before

the burden could be shifted to Ralston.         Ralston also contended,

“Although [his] counsel has made technical missteps with respect

to the filing of [his] expert report, there is no deliberate

violation and no prejudice to [Dr. Yim] who received all the

requested information in a timely manner.”         In addition, Ralston

asserted that he did not waive his right to argue that the

circuit court abused its discretion in denying his HRCP Rule

56(f) continuance because “appellate review necessarily includes

review of the trial court’s treatment of [his] supplemental

exhibit or expert affidavit[.]”

          In its published opinion, the ICA determined that Dr.

Yim “did not present any evidence as the movant regarding the

dental standard of care, and because plaintiff Ralston was not

yet required to name his experts or provide their reports under

the circuit court deadlines,” concluded that the circuit court

improperly shifted the summary judgment burden to Ralston.

Ralston, 128 Hawai#i at 45, 282 P.3d at 587.         The ICA stated, “it

was reasonable under the circumstances that Ralston was not yet


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ready to identify experts in response to Dr. Yim’s

interrogatories and thus Dr. Yim could not simply point to

Ralston’s interrogatory responses to satisfy his burden as the

summary judgment movant.”       Id.    The ICA cited French and Exotics

Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Company, 116

Hawai#i 277, 172 P.3d 1021 (2007), in support of this

proposition.    Id. at 46-50, 282 P.3d at 588-92.         In addition, the

ICA distinguished Eddins because, in Eddins, the movant-doctor

had satisfied his initial burden by putting forth affirmative

evidence showing that he had met the standard of care.             Id. at

50, 282 P.3d at 592.

            The ICA also distinguished Celotex.         Id. at 50-51, 282

P.3d at 592-93.     The ICA concluded that, unlike the non-movant in

Celotex, “Ralston did not have adequate time to conduct discovery

and to consider and identify his experts in responding to Dr.

Yim’s interrogatories.”       Id. at 51, 282 P.3d at 593.        In a

footnote, the ICA noted, “[w]e do not reach the question of

whether summary judgment may be appropriate in a situation where

the deadline for disclosing experts has not yet expired, but the

non-movant plaintiff has had adequate time to conduct discovery

and to identify experts.”13      Id. at 51 n.11, 282 P.3d at 593 n.11

(emphasis added).



      13
            The ICA did not address whether the circuit court abused its
discretion in striking Dr. Aronowitz’s affidavit.

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          Thus, the ICA determined that the circuit court erred

in granting summary judgment in favor of Dr. Yim.           Id. at 51, 282

P.3d at 593.   The ICA also reversed the circuit court’s award of

taxable costs in favor of Dr. Yim because he was not the

“prevailing party” pursuant to HRCP Rule 54(d)(1).           Id.

Accordingly, the ICA vacated and remanded the circuit court’s

final judgment.    Id. at 52, 282 P.3d at 594.

          The ICA filed its judgment on appeal and Dr. Yim timely

filed an application for writ of certiorari.

                        II.    Standard of Review

          “On appeal, the grant or denial of summary judgment is

reviewed de novo.”    First Ins. Co. of Hawai#i v. A&B Props.,

Inc., 126 Hawai#i 406, 413, 271 P.3d 1165, 1172 (2012) (citing

Nuuanu Valley Ass’n v. City & Cnty. of Honolulu, 119 Hawai#i 90,

96, 194 P.3d 531, 537 (2008)).        Furthermore,
          [S]ummary judgment is appropriate if the pleadings,
          depositions, answers to interrogatories and admissions
          on file, together with the affidavits, if any, show
          that there is no genuine issue as to any material fact
          and that the moving party is entitled to judgment as a
          matter of law. A fact is material if proof of that
          fact would have the effect of establishing or refuting
          one of the essential elements of a cause of action or
          defense asserted by the parties. The evidence must be
          viewed in the light most favorable to the non-moving
          party. In other words, we must view all of the
          evidence and inferences drawn therefrom in the light
          most favorable to the party opposing the motion.

Id. at 413-14, 271 P.3d at 1172-73 (citation omitted).

                              III.   Discussion

          The central issue is whether Dr. Yim, as the movant in


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a motion for summary judgment, satisfied his initial burden of

production.    Ralston and the ICA, relying on this court’s

decision in French, contend that Dr. Yim had the initial burden

of production to put forth admissible evidence that he did not

breach the standard of care.14       Ralston, 128 Hawai#i at 46, 282

P.3d at 588.    Dr. Yim, citing Celotex, argues that the ICA erred

in requiring him to present evidence that he did not breach the

standard of care, since he had the option of “pointing to

[Ralston’s] lack of evidence[.]”         As explained below, the movant

in a motion for summary judgment cannot satisfy his or her

initial burden of production simply by pointing to the non-

movant’s lack of evidence prior to the discovery deadline, and

thus, Dr. Yim did not satisfy his initial burden of production.

A.    Principles applicable to summary judgment motions

            Under HRCP Rule 56(b), a party “may move with or

without supporting affidavits for a summary judgment in the

party’s favor[.]”     “The judgment sought shall be rendered


      14
            In Craft v. Peebles, this court held,

            It is well settled that in medical malpractice
            actions, the question of negligence must be decided by
            reference to relevant medical standards of care for
            which the plaintiff carries the burden of proving
            through expert medical testimony. The standard of
            care to which a doctor has failed to adhere must be
            established by expert testimony because a jury
            generally lacks the requisite special knowledge,
            technical training, and background to be able to
            determine the applicable standard without the
            assistance of an expert.

78 Hawai#i 287, 298, 893 P.2d 138, 149 (1995) (citations and quotation marks
omitted) (emphasis added).

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forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”     HRCP Rule 56(c).      Moreover,
          Supporting and opposing affidavits shall be made on
          personal knowledge, shall set forth such facts as
          would be admissible in evidence, and shall show
          affirmatively that the affiant is competent to testify
          to the matters stated therein. . . . When a motion for
          summary judgment is made and supported as provided in
          this rule, an adverse party may not rest upon the mere
          allegations or denials of the adverse party’s
          pleading, but the adverse party’s response, by
          affidavits or as otherwise provided in this rule, must
          set forth specific facts showing that there is a
          genuine issue for trial. If the adverse party does
          not so respond, summary judgment, if appropriate,
          shall be entered against the adverse party.

HRCP Rule 56(e).

          This court has set forth a burden shifting paradigm for

situations where the non-movant bears the burden of proof at

trial:
                The burden is on the party moving for summary
          judgment (moving party) to show the absence of any
          genuine issue as to all material facts, which, under
          applicable principles of substantive law, entitles the
          moving party to judgment as a matter of law. This
          burden has two components.
                First, the moving party has the burden of
          producing support for its claim that: (1) no genuine
          issue of material fact exists with respect to the
          essential elements of the claim or defense which the
          motion seeks to establish or which the motion
          questions; and (2) based on the undisputed facts, it
          is entitled to summary judgment as a matter of law.
          Only when the moving party satisfies its initial
          burden of production does the burden shift to the non-
          moving party to respond to the motion for summary
          judgment and demonstrate specific facts, as opposed to
          general allegations, that present a genuine issue
          worthy of trial.
                Second, the moving party bears the ultimate
          burden of persuasion. This burden always remains with
          the moving party and requires the moving party to

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             convince the court that no genuine issue of material
             fact exists and that the moving party is entitled to
             summary judgment as a matter of law.

French, 105 Hawai#i at 470, 99 P.3d at 1054 (citation and

emphasis omitted).

             Thus, where the non-movant bears the burden of proof at

trial, a movant may demonstrate that there is no genuine issue of

material fact by either: (1) presenting evidence negating an

element of the non-movant’s claim, or (2) demonstrating that the

non-movant will be unable to carry his or her burden of proof at

trial.     See id. at 472, 99 P.3d at 1056.        In determining whether

a movant has demonstrated that the non-movant cannot carry his or

her burden of proof at trial, this court applies principles

derived from the United States Supreme Court’s holding in

Celotex.     Accordingly, a review of Celotex is instructive.

             Celotex concerned a motion for summary judgment brought

pursuant to Federal Rules of Civil Procedure (FRCP) Rule 56.15

477 U.S. at 319.      There, the plaintiff, Myrtle Nell Catrett,

claimed that the defendant’s asbestos products caused her

husband’s death.      Id.   The defendant filed a motion for summary

judgment arguing that Catrett, as the non-moving party, failed to

meet her burden of showing that the defendant caused her

husband’s death because in her response to defendant’s

      15
            The version of FRCP Rule 56 in effect at the time of Celotex is in
relevant aspects substantively identical to HRCP Rule 56. This court can look
to cases interpreting the Federal Rules of Civil Procedure for persuasive
guidance. See Thomas v. Kidani, 126 Hawai#i 125, 130 n.5, 267 P.3d 1230, 1235
n.5 (2011).

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interrogatories, she failed to identify any witness that could

testify about her husband’s exposure to defendant’s asbestos.

Id. at 319-20.    The federal district court granted the

defendant’s motion for summary judgment almost two years after

the lawsuit had been initiated.       Id. at 320.     On appeal, the

Court of Appeals for the District of Columbia Circuit reversed

the trial court and determined that the defendant’s motion for

summary judgment was “fatally defective” because it did not

include any evidence to prove it was not liable.           Id. at 321.

The United States Supreme Court granted certiorari and determined

that FRCP Rule 56 did not require the defendant-movant to support

its motion for summary judgment with affirmative evidence to

rebut Catrett’s claim.     Id. at 322.     Instead, the Court held that

the moving party’s burden could also be discharged by “pointing

out to the district[] court that there is an absence of evidence

to support the nonmoving party’s case.”         Id. at 325.

          The Court also noted that FRCP Rule 56(c) mandates the

entry of summary judgment, only “after adequate time for

discovery[.]”    Id. at 322.    The Court determined that “no serious

claim can be made that [Catrett] was in any sense ‘railroaded’ by

a premature motion for summary judgment.”         Id. at 326.     Thus, the

Court reversed the Court of Appeals and remanded the case for

further proceedings with regard to whether Catrett had submitted

adequate evidence in opposition to the motion for summary


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judgment.    Id. at 328.    Justice White, who provided the fifth

vote for the majority opinion, stated in a concurring opinion:
                  I agree that the Court of Appeals was wrong in
            holding that the moving defendant must always support
            his motion with evidence or affidavits showing the
            absence of a genuine dispute about a material fact. I
            also agree that the movant may rely on depositions,
            answers to interrogatories, and the like, to
            demonstrate that the plaintiff has no evidence to
            prove his case and hence that there can be no factual
            dispute. But the movant must discharge the burden the
            Rules place upon him: It is not enough to move for
            summary judgment without supporting the motion in any
            way or with a conclusory assertion that the plaintiff
            has no evidence to prove his case.

                  A plaintiff need not initiate any discovery or
            reveal his witnesses or evidence unless required to do
            so under the discovery Rules or by court order. Of
            course, he must respond if required to do so; but he
            need not also depose his witnesses or obtain their
            affidavits to defeat a summary judgment motion
            asserting only that he has failed to produce any
            support for his case. It is the defendant's task to
            negate, if he can, the claimed basis for the suit.

                  Petitioner Celotex does not dispute that if
            respondent has named a witness to support her claim,
            summary judgment should not be granted without Celotex
            somehow showing that the named witness’ possible
            testimony raises no genuine issue of material fact.
            It asserts, however, that respondent has failed on
            request to produce any basis for her case.
            Respondent, on the other hand, does not contend that
            she was not obligated to reveal her witnesses and
            evidence but insists that she has revealed enough to
            defeat the motion for summary judgment. Because the
            Court of Appeals found it unnecessary to address this
            aspect of the case, I agree that the case should be
            remanded for further proceedings.

477 U.S. at 328-29 (White, J., concurring) (citation omitted)

(emphasis added).

            In general, Celotex has been interpreted in the federal

courts as standing for the proposition that
            under certain circumstances the movant may meet its
            Rule 56 burden without negating an element of the non-
            moving party’s claim and that under such circumstances
            it is sufficient to point to materials on file that


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          demonstrate that the party bearing the burden of proof
          at trial will not be able to meet that burden.

Clark v. Coats & Clark, Inc., 929 F.2d 604, 607-08 (11th Cir.

1991) (emphasis added) (noting that Celotex presented the

“unusual situation” wherein “neither party could prove either the

affirmative or the negative of an essential element of the

claim”); see also Anderson v. Radisson Hotel Corp., 834 F. Supp.

1364, 1368 (S.D. Ga. 1993); United States v. Four Parcels of Real

Property, 941 F.2d 1428, 1438 n.19 (11th Cir. 1991) (holding that

the movant “must point to specific portions of the record in

order to demonstrate that the nonmoving party cannot meet its

burden of proof at trial”); Nissan Fire & Marine Ins. Co., Ltd.

v. Fritz Cos., Inc., 210 F.3d 1099, 1105 (9th Cir. 2000)

(determining that a movant must have “made reasonable efforts,

using the normal tools of discovery, to discover whether the

nonmoving party has enough evidence to carry its burden of

persuasion at trial”).

          In addition, some federal courts, relying on Justice

White’s concurring opinion in Celotex, have emphasized that

Celotex does not permit a defendant to prevail by “merely

asserting that the non-moving party has not come forward with

evidence to support its claim[.]”         Anderson, 834 F. Supp. at 1368

(emphasis added).    Rather, the defendant must demonstrate that

the plaintiff “cannot carry its burden of proof at trial.”             Id.

(emphasis added).

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          This court adopted a similar view of Celotex in French

and Exotics Hawaii-Kona.      In French, the plaintiff, Bobbie L.

French, filed an employment discrimination claim against her

employer, Hawai#i Pizza Hut, asserting that she was discriminated

against because of her disability.        French, 105 Hawai#i at 465-

66, 99 P.3d at 1049-50.     French’s claimed disability was a

medical limitation to not lift over twenty-five pounds.            Id.

Pizza Hut filed a motion for summary judgment and argued that

French was not disabled as a matter of law.          Id. at 466, 472-73,

99 P.3d at 1050, 1056-57.      The circuit court granted summary

judgment in favor of Pizza Hut because, inter alia, French’s

impairment did not constitute a disability as a matter of law.

Id. at 466, 99 P.3d at 1050.      French appealed, and this court

concluded that the circuit court erred in granting summary

judgment on this basis because the question of whether French’s

limitation constituted a disability must be resolved on a case-

by-case basis.    Id. at 470, 99 P.3d at 1054.

          This court then addressed Pizza Hut’s alternative

argument, that summary judgment was appropriate because French

failed to provide the court with admissible evidence that the

average person could lift more than 25 pounds, and thus failed to

establish she was disabled in a major life activity.            Id.   Noting

that Pizza Hut, as the movant, had the initial burden of

demonstrating the absence of a genuine issue of material fact,


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this court concluded that it was Pizza Hut’s burden “to produce

admissible evidence that the average person in the general

population cannot lift more than twenty-five pounds.”              Id. at

470-71, 99 P.3d at 1054-55 (emphasis added).          Because Pizza Hut

failed to produce such admissible evidence, this court concluded

that Pizza Hut had not satisfied its initial burden.             Id. at 473,

99 P.3d at 1057.

          However, the dissenting opinion, relying on Celotex,

concluded that Pizza Hut had met its initial burden.             Id. at 481,

99 P.3d at 1065 (Nakayama, J., dissenting).          In response, the

majority distinguished Celotex from the case before it, and

explained:
          [T]he defendant in Anderson[, 834 F. Supp. at 1368,]
          relied on Celotex, and asserted that it had met its
          burden by pointing out an absence of evidence on the
          record to support at least one essential element of
          the plaintiffs’ claim.

                However, the Anderson court explained that,
          “[a]lthough Celotex stands for the proposition that
          under certain circumstances a summary judgment movant
          may carry its burden without presenting evidence
          negating an element of the other party’s claim, merely
          asserting that the non-moving party has not come
          forward with evidence to support its claims is not
          enough.” As the court pointed out, “To repeat: the
          movant must first demonstrate that the non-moving
          party cannot carry its burden of proof at trial.”
          “The distinction between not placing proof in the
          record and not being able to offer proof at trial is
          crucial.” As emphasized by Justice White in Celotex,

                [a] plaintiff need not initiate any discovery or
                reveal his witness or evidence unless required
                to do so under the discovery Rules or by court
                order. Of course, he must respond if required
                to do so; but he need not also depose his
                witnesses or obtain their affidavits to defeat a
                summary judgment motion asserting only that he
                has failed to produce any support for his case.



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                 As pointed out by the Anderson court, the movant
           in Celotex had taken the affirmative step, in its
           interrogatories, of asking the clinching question in
           discovery, and had received a favorable answer, and
           pointed out the plaintiff’s implicit admission to the
           Court. Accordingly, the movant made a “show[ing of]
           the absence of any genuine issues as to all material
           facts.” In the present case, however, Pizza Hut has
           made no such showing, and did not even argue that
           Appellant had no evidence to prove whether her lifting
           restriction was a “substantial limitation” of a “major
           life activity,” as compared to the average person.

French, 105 Hawai#i at 471-72, 99 P.3d at 1055-56 (emphasis

added) (citations and footnote omitted).

           Subsequently, in Exotics Hawaii-Kona, the movant-

defendant-DuPont sought summary judgment on the ground the

plaintiffs could not prove damages for their claim.           116 Hawai#i

at 286, 172 P.3d at 1030.      Specifically, DuPont asserted that the

deadline for the submission of final expert reports had passed

and the reports of plaintiffs’ experts were insufficient to prove

damages.   Id.    Accordingly, DuPont argued that the plaintiffs

could not sustain their burden of proof with regard to damages at

trial.   Id.    The circuit court awarded summary judgment in favor

of DuPont.     Id. at 283-84, 172 P.3d at 1027-28.       This court

upheld summary judgment in favor of DuPont on the ground that

plaintiffs “could not, as a matter of law, prove damages[.]”               Id.

at 283, 172 P.3d at 1027.      This court explained:
           [T]he moving party has the initial burden of
           identifying those portions of the record demonstrating
           the absence of a genuine issue of material fact. The
           moving party may discharge his or her burden by
           demonstrating that[,] if the case went to trial[,]
           there would be no competent evidence to support a
           judgment for his or her opponent. Cf. Celotex Corp.
           v. Catrett, 477 U.S. 317 . . . (1986) (a party moving
           for summary judgment under Federal Rules of Civil

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            Procedure Rule 56 need not support his or her motion
            with affidavits or similar materials that negate his
            or her opponent’s claims, but need only point out that
            there is [an] absence of evidence to support the
            opponent’s claims). For if no evidence could be
            mustered to sustain the nonmoving party’s position, a
            trial would be useless.

            . . . .

            Moreover, “[t]he evidentiary standard required of a
            moving party in meeting its burden on a summary
            judgment motion depends on whether the moving party
            will have the burden of proof on the issue at trial.”
            Where the moving party is the defendant, who does not
            bear the ultimate burden of proof at trial, summary
            judgment is proper when the non-moving party-plaintiff

                  fails to make a showing sufficient to establish
                  the existence of an element essential to that
                  party’s case, and on which that party will bear
                  the burden of proof at trial. In such a
                  situation, there can be no genuine issue as to
                  any material fact, since a complete failure of
                  proof concerning an essential element of the
                  nonmoving party’s case necessarily renders all
                  other facts immaterial. The moving party is
                  entitled to judgment as a matter of law because
                  the nonmoving party has failed to make a
                  sufficient showing on an essential element of
                  her case with respect to which she has the
                  burden of proof.

Id. at 301-02, 172 P.3d at 1045-46 (emphasis added) (some

brackets in original and some citations omitted).

            Applying these principles to DuPont’s motion, this

court noted that “plaintiffs proffered reports of their economic

expert and attorney experts[,]” but that these reports “were

insufficient as a matter of law to establish plaintiffs’

damages.”    Id. at 302, 305-06, 172 P.3d at 1046, 1049-50.

Accordingly, this court upheld the circuit court’s grant of

summary judgment in favor of DuPont.         Id. at 305-06, 172 P.3d at

1049-50.    Significantly, in Exotics Hawaii-Kona the deadline for



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the submission of additional expert reports had passed.            Id. at

302-03, 172 P.3d at 1046-47.

           Recently, this court addressed a somewhat similar issue

in Thomas.   In Thomas, the plaintiff, Tara Thomas, filed a legal

malpractice suit against her former attorney, Grant K. Kidani.

126 Hawai#i at 126, 267 P.3d at 1231.        Kidani filed a motion for

summary judgment arguing that Thomas was unable to show an

element of her legal malpractice claim, i.e., that she would have

prevailed at trial.     Id. at 127, 267 P.3d at 1232.        In his motion

for summary judgment, Kidani pointed to the trial of the

underlying case and noted that he had raised the argument that

Thomas asserted should have been argued, and that the court in

the underlying case rejected the argument.         Id.   This court did

not explicitly address whether Kidani had satisfied his initial

burden of production, however, this court stated, “[s]ummary

judgment for Kidani is proper if Kidani shows that Thomas cannot

meet her burden of proof.”      Id. at 130, 267 P.3d at 1235.         After

noting that the causation element of a legal malpractice claim

requires a plaintiff to litigate a “trial within a trial,” this

court analyzed Thomas’s citation to several cases and Thomas’s

expert’s declaration to determine if she demonstrated she could

satisfy her burden of proof at trial.        Id. at 130-33, 267 P.3d at

1235-38.   This court determined that Thomas could not satisfy her

burden of proof at trial.      Id. at 133, 267 P.3d at 1238.


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Therefore, Thomas is another example of summary judgment being

granted against a non-moving party who did not merely fail to

place “proof in the record,” but who also would be unable to

“offer proof at trial[.]”      French, 105 Hawai#i at 472, 99 P.3d at

1056 (citation omitted).

           In sum, this court’s case law indicates that a summary

judgment movant may satisfy his or her initial burden of

production by either (1) presenting evidence negating an element

of the non-movant’s claim, or (2) demonstrating that the non-

movant will be unable to carry his or her burden of proof at

trial.   See French, 105 Hawai#i at 470-72, 99 P.3d at 1054-56;

Exotics Hawaii-Kona, 116 Hawai#i at 302, 172 P.3d at 1046.            Where

the movant attempts to meet his or her burden through the latter

means, he or she must show not only that the non-movant has not

placed proof in the record, but also that the movant will be

unable to offer proof at trial.       See French, 105 Hawai#i at 472,

99 P.3d at 1056 (citing Anderson, 834 F. Supp. at 1368).

Accordingly, in general, a summary judgment movant cannot merely

point to the non-moving party’s lack of evidence to support its

initial burden of production if discovery has not concluded.

See id. (“[M]erely asserting that the non-moving party has not

come forward with evidence to support its claims is not

enough.”).




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B.   Summary judgment in favor of Dr. Yim was improper in the
     circumstances of this case

           Applying these principles to the instant case, Dr. Yim

did not satisfy his initial burden of production when he filed

his motion for summary judgment since he did not demonstrate that

Ralston could not meet his burden of proof at trial.             Dr. Yim had

the option of either putting forth affirmative evidence, or

showing that Ralston could not carry his burden of proof at

trial.   See id. at 470-72, 99 P.3d at 1054-56; Exotics Hawaii-

Kona, 116 Hawai#i at 302, 305-06, 172 P.3d at 1046, 1049-50.                Dr.

Yim neither provided affirmative evidence to support his position

that he did not breach the standard of care, nor did he point to

anything to indicate that Ralston would not have been able to

offer proof at trial of a breach of the standard of care.

           The only evidence Dr. Yim relied upon in support of his

motion for summary judgment was two responses to interrogatories

from Ralston in which Ralston stated that he would provide expert

reports upon their availability.        Ralston did not state in his

responses that he could not name any experts or produce any

expert testimony at trial to show that Dr. Yim breached the

standard of care.     Cf. Exotics Hawaii-Kona, 116 Hawai#i at 283,

305-06, 172 P.3d at 1027, 1049-50 (holding that the plaintiffs’

expert reports were insufficient to prove damages at trial and

noting that the date for supplementing those expert reports had

passed).   Moreover, at the time that Ralston responded to Dr.

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Yim’s two sets of interrogatories (seven months and ten months

after Ralston filed his complaint, respectively), Ralston was not

yet required to name his witnesses.16        See French, 105 Hawai#i at

472, 99 P.3d at 1056 (“[A] plaintiff need not initiate any

discovery or reveal his witness or evidence unless required to do

so under the discovery Rules or by court order.”) (citation

omitted).    Thus, Dr. Yim’s references in his motion for summary

judgment to Ralston’s interrogatory responses did not satisfy Dr.

Yim’s initial burden of production.         See id. at 471-72, 99 P.3d

at 1055-56.

            Furthermore, Dr. Yim does not contend that Ralston

ultimately would have been unable to offer proof at trial that

Dr. Yim did not meet the appropriate standard of care.             Dr. Yim

only contends that Ralston failed to provide proof in the record.

As this court acknowledged in French, “[t]he distinction between

not placing proof in the record and not being able to offer proof

at trial is crucial.”      Id. at 472, 99 P.3d at 1056 (citation

omitted).

            In addition, and as the ICA stated below, the instant

case is distinguishable from Exotics Hawaii-Kona because that

case involved a situation where the discovery deadline had


      16
            The expert exchange deadline was left blank in the Trial Setting
Status Conference Order. The discovery deadline was set for July 27, 2010,
and pursuant to RCCH Rule 12(r), the deadline for naming witnesses was not
until May 2010. Thus, when Ralston responded to Dr. Yim’s interrogatories on
December 8, 2008 and April 13, 2009, Ralston’s time to gather further evidence
in support of his claim had not elapsed.

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already passed when the court granted the motion for summary

judgment.     116 Hawai#i at 283, 286-87, 172 P.3d at 1027, 1030-31.

Thus, there was no time left for the parties to gather further

expert opinions.      Id.   In the instant case, there was still over

a year left before the parties were required to submit all

discovery and to name their final witnesses.17           See supra note

16.   Therefore, Exotics Hawaii-Kona is a case where the non-

moving party was unable to “offer proof at trial” as opposed to

merely failing to place “proof in the record[.]”             French, 105

Hawai#i at 472, 99 P.3d at 1056 (citation omitted).

            Dr. Yim also argues that the ICA erred in

distinguishing Eddins.       There, Darston Eddins filed a medical

malpractice suit against Dr. J. Steven Morrison.             Eddins, 105

Hawai#i at 376, 98 P.3d at 247.        Dr. Morrison filed a motion for

summary judgment and attached to his motion the affidavits of two

doctors who stated that Dr. Morrison’s treatment met the

applicable standard of care.        Id. at 377, 98 P.3d at 248.         Eddins

filed an opposition to Dr. Morrison’s motion for summary judgment

and attached the opinions of two other doctors who stated that


      17
            Although Ralston’s counsel agreed at the May 13, 2009 hearing to
an accelerated deadline to provide his expert’s report and to respond to the
motion for summary judgment, there is nothing in the record to indicate that
Ralston agreed to an accelerated deadline to name all of the witnesses that he
would rely on at trial or to an accelerated deadline to conclude discovery.
The failure of Ralston’s counsel to provide an admissible expert opinion by
the agreed-upon date does not indicate that Ralston could not meet his burden
of proof at trial. Inasmuch as Dr. Yim failed to provide affirmative evidence
that he satisfied the standard of care and failed to demonstrate that Ralston
could not offer proof at trial, Dr. Yim did not satisfy his initial burden of
production.

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Dr. Morrison’s treatment did not meet the standard of care.                   Id.

Eddins’s doctors’ opinions were “not contained in affidavits or

otherwise made under oath or penalty of perjury.”              Id.   These

opinions were “xerox copies of the opinions [Eddins] mailed or

faxed to Dr. Morrison’s original attorney . . . that were used in

[a] court-annexed arbitration[.]”            Id. at 377-78, 98 P.3d at 248-

49.    The circuit court determined that the opinions attached to

Eddins’ opposition were inadmissible hearsay because the

testimony was not presented by affidavit.            Id. at 378, 98 P.3d at

249.    On appeal, the ICA determined that Eddins did not seek an

HRCP Rule 56(f) continuance in order to obtain affidavits for his

doctors’ opinions, and that after Dr. Morrison submitted his

doctors’ affidavits “it was necessary” for Eddins to present

affidavits in support of his position.            Id.    In addition, the ICA

noted that after the circuit court struck Eddins’ doctors’

opinions and granted the motion for summary judgment, it gave

Eddins a “second chance,” i.e., the option of filing a motion “to

try to remedy the situation[.]”          Id. at 379, 98 P.3d at 250.          As

the ICA noted, however, Eddins took no action in response.                Id.

Accordingly, the ICA affirmed the circuit court’s grant of

summary judgment in favor of Dr. Morrison.              Id.

             Eddins is distinguishable from the instant case.

Unlike Eddins, where the movant Dr. Morrison submitted expert

reports to satisfy his initial burden of production, here, Dr.


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Yim merely pointed to Ralston’s lack of evidence on his claim and

Ralston’s responses to Dr. Yim’s interrogatories.            The ICA’s

holding that Eddins, as the non-moving party, failed to properly

rebut the evidence presented by Dr. Morrison to create a genuine

issue of material fact, differs from the situation presented in

this case where the issue is whether the movant, Dr. Yim,

satisfied his initial burden of production.           Had Dr. Yim provided

a proper expert affidavit in support of his motion, Ralston would

have been required to submit his expert’s affidavit or request a

HRCP Rule 56(f) continuance to allow more time to produce an

admissible affidavit.      Cf. Eddins, 105 Hawai#i at 377-79, 98 P.3d

at 248-50.    However, Dr. Yim did not do so.

           Accordingly, Dr. Yim failed to satisfy his initial

burden of production, and the ICA did not err in vacating the

circuit court’s judgment granting summary judgment in favor of

Dr. Yim.

C.   HRCP Rule 56(f) is the proper procedure to request and
     obtain additional time to respond to a motion for summary
     judgment that is filed prior to the discovery deadline

           The ICA, citing Celotex, appeared to suggest that

summary judgment may be appropriate prior to a discovery deadline

if the non-movant has had “adequate time to conduct discovery and

to identify experts.”      Id. at 51 n.11, 282 P.3d at 593 n.11

(emphasis added).     The ICA also concluded that, in the instant

case, Ralston did not have “adequate time” to conduct discovery.


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Id.   Dr. Yim asserts that the ICA’s determination that Ralston

did not have adequate time to conduct discovery “subverts the

procedure for a [HRCP] Rule 56(f) continuance” because Ralston

failed to authenticate his expert’s report within the agreed-upon

deadline and failed to request a continuance to authenticate the

report.    Dr. Yim also contends that the “ICA’s ruling creates a

confusing and impractical rule for the circuit court[s] to try to

implement.”     In addition, Dr. Yim argues that the ICA’s opinion

“encourages and protects inaction and non-disclosure of expert

opinion by plaintiffs in malpractice action[s.]”

            Under the circumstances of this case, we need not reach

this issue because Dr. Yim failed to meet his initial burden of

production.     Nevertheless, we take this opportunity to clarify

that the ICA erred in suggesting that the question of whether

Ralston had “adequate time” to conduct discovery was relevant to

its review of the summary judgment motion.           First, such an

approach would be inconsistent with the principles set forth by

this court in French because it implies that a movant could

obtain summary judgment simply by pointing to the non-movant’s

lack of evidence, so long as “adequate time” for discovery has

passed.    However, French requires that “the movant must first

demonstrate that the non-moving party cannot carry its burden of

proof at trial.”      105 Hawai#i at 472, 99 P.3d at 1056.           There is

nothing in French that suggests that summary judgment is


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appropriate simply because there has been “adequate time” for

discovery.   To the contrary, the clear import of French is that

summary judgment should not be granted when there is still time

for the non-movant to develop evidence for use at trial, unless

there is a basis for concluding (as was the case in Celotex) that

such an effort would be futile.

          Second, the procedures set forth in HRCP Rule 56(f)

provide non-moving parties with protection against a premature

grant of a motion for summary judgment.         HRCP Rule 56(f) provides

          When Affidavits are Unavailable. Should it appear
          from the affidavits of a party opposing the motion
          that the party cannot for reasons stated present by
          affidavit facts essential to justify the party’s
          opposition, the court may refuse the application for
          judgment or may order a continuance to permit
          affidavits to be obtained or depositions to be taken
          or discovery to be had or may make such other order as
          is just.

(Emphasis added).

          In Crutchfield v. Hart, 2 Haw. App. 250, 252, 630 P.2d

124, 125 (1981) (citation omitted), the ICA stated that the

“safeguard against an improvident or premature grant of summary

judgment” is a HRCP Rule 56(f) continuance.          Moreover, it is

generally recognized that,
          The purpose of subdivision (f) is to provide an
          additional safeguard against an improvident or
          premature grant of summary judgment and the rule
          generally has been applied to achieve that objective.
          Consistent with this purpose, courts have stated that
          technical rulings have no place under the subdivision
          and that it should be applied with a spirit of
          liberality.




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10B Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,

Federal Practice and Procedure Civil 3d § 2740, at 402 (1998)

(footnotes omitted).

            The ICA’s suggestion that a court considering a motion

for summary judgment should determine whether the non-movant had

“adequate time” to conduct discovery undercuts the role of HRCP

Rule 56(f) as the “safeguard against an improvident or premature

grant of summary judgment[.]”       Crutchfield, 2 Haw. App. at 252,

630 P.2d at 125 (citation omitted).        Put another way, HRCP Rule

56(f) is the appropriate means by which parties can ensure that

they have adequate time to respond to a motion for summary

judgment.

             Accordingly, the ICA erred in suggesting that the

adequacy of the time Ralston had to conduct discovery was

relevant to its determination of whether summary judgment was

appropriate.

                            IV.   Conclusion

            In sum, the circuit court erred in granting summary

judgment because Dr. Yim did not meet his initial burden of

production.    Accordingly, the judgment of the ICA is affirmed.

John Reyes-Burke for                /s/ Mark E. Recktenwald
petitioner
                                    /s/ Paula A. Nakayama
Sue V. Hansen for
respondent                          /s/ Simeon R. Acoba, Jr.

                                    /s/ Sabrina S. McKenna

                                    /s/ Karen S.S. Ahn

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