Opposition Brief — Jou v. First Insurance Co. of Hawaii, Ltd.

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No. 04-1098 Pee 1 4 ZUN5

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IN THE SUPREME COURT OF THE UNITED STATES |

EMERSON M.F. JOU, M.D.

PETITIONER

FIRST INSURANCE COMPANY OF HAWAII, LTD..

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF HAWAII

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

DENNIS E.W. O°CONNOR

KELVIN H. KANESHIRO

ELMIRA K.L. TSANG

REINWALD O’CONNOR & PLAYDON LLP

A LIMITED LIABILITY LAW PARTNERSHIP

24" Floor, Makai Tower

733 Bishop Street

Honolulu, Hawaii 96813

Phone: (808) 524-8350

Facsimile: (SO8) 531-8628

Attorneys for Respondent

FIRST INSURANCE COMPANY OF HAWAIL, LTD.

QUESTIONS PRESENTED FOR REVIEW

Whether the trial court and the Hawaii Supreme Court

deprived DR. JOU of his 14'" Amendment right to

due process when they denied DR. JOU the

opportunity to present damages involving calculations

pursuant to Hawaii’s workers’ compensation laws,

despite summary adjudication of such damages?

Whether the trial court and the Hawaii Supreme Court

treated DR. JOU differently than other tort litigants

when they precluded DR. JOU from _ presenting

dainages involving workers’ compensation

calculations, despite the fact that original jurisdiction

over Hawaii’s workers’ compensation controversies

rests with the State of Hawaii, Department of Labor

and Industrial Relations?

TABLE OF CONTENTS

RI ON iss csiccccnsnsncsasecenskscacessseunssnsesseseuenennanesese I

BASIS OF JURISDICTION ..0......cecccccecscscscssesesececcececeeeeeces. I

CONSTITUTIONAL AND OTHER PROVISIONS

I ia actaitetctindaradeniiandnsestase’ teas nidiScssinscci a ctleiac. I

SUMMARY OF REASONS FOR DENYING THE

a SE RL at ee OL 6

os ates ecard ee TL 6

I. THERE IS NO JURISDICTION FOR THIS COURT TO

REVIEW DECISIONS ISSUED BY HAWAII COURTS

IN Statipaiaiirracic dacs shisasndhiunsceuisnsnestadtitensenasindsarcetecsal 2 6

Il. THERE IS NO COMPELLING REASON TO GRANT A

WRIT OF CERTIORARI FOR QUESTIONS OF STATE

NT Wied rls einahUcerhenhéscdesiireasneseesansnnacidodnevaniacitanacasaeanssiesss 9

III]. DR. JOU’S CLAIMS HAVE NO MEBRIT..................... 10

A. There Is No Due Process Right to Present Evidence

on Damages Because Dr. Jou ‘Vas Afforded A Real

Opportunity to Protect His Underlying Claims and

Related Damages From Summary Judgment........... 10

B. Dr. Jou Was Treated Like Other Similarly Situated

Tort Claimants Seeking to Litigate Damages

Encompassed By Hawaii’s Workers’ C ompensation

a pcaesg TTT Sere ROR OT 12

|. There is no First Amendment right to petition for

the redress of damages ostensibly caused by a

non-governmental party ..................ssseseeeeeseseeeees 12

th

There is no Seventh Amendment right to a jury

trial on damages where the underlying causes of

actions have been summarily dismissed ............ 13

3. The Hawaii courts did not disparately apply

Hawaii ’s workers’ compensation statutes......... 4

Pe Eee Rida sennicisasliceilskcsksbuasaicnensctuasianandiikanasiguasd siabendumolas 17

APPENDIX A - Final Judgment, State of Hawaii,

Circuit Court of the First Circuit, filed

June 13, 2002

APPENDIX B - Order Granting In Part and Denying In

Part Defendant’s Motion for Summary

Judgment Filed August 20, 2001, State

of Hawaii, Circuit Court of the First

Circuit, filed November 14, 2001

APPENDIX C - Order Re Motions In Limine, State of

Hawaii, Circuit Court of the First

Circuit, filed October 29, 2001

TABLE OF CITED AUTHORITIES

CASES

Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66

EMA SEN CUTBEY scinccsiesskasicdeniansarataioraseioceetae 10

Amantiad v. Odum, 90 Haw. 152, 977 P.2d 160 (Haw. 1999)

sanhevnasnnecanéniehiniadtnahpienbisipeadesbaietamisunine Ee 16, 17

BE & K Construction Co. v. NLRB, 536 U.S. 516, 122 S.Ct.

2IFO, 153 L.Ed. 2d 499 (2002) oicccisccessssccsisssesesecsecasnanceaes 12

Brinkerhoff Trust & Savings Co. v. Hill, 281 U.S. 673, 50

S.Ct. 451, 74 L.Ed. 1107 (1930) .o.cccccccecescssecsesees 10, 11

California v. Holladay, 159 U.S. 415, 16 S.Ct. 53, 40 L.Ed.

MRR TTR) sesisisssriusssrarnandiscpaidianismdgi ee ane 2

Catron v. Tokio Marine Management, Inc., 90 Haw. 407, 978

Wr tt OD COU, BDI) sivas esnssinsibassiistnasihatanaae aa 14

Ex Parte Peterson, 253 U.S. 300, 40 S. Ct. 543, 546 64 L.

Te, FES CITI vvsiscseccscreui ieee ee 13

Fidelity & Deposit Co. v. United States, 187 U.S. 315, 23 S.

Ce. 020, 47 CA WOR ic 13

First National Bank v. Estherville, 215 U.S. 34, 30 S.Ct.

S500, 56 CE 225 IG aklnccedcca a, 4,8

Hodel v. Indiana, 452 U.S. 314, 101 S. Ct. 2376, 69 L. Ed. 2d

WOU cciiosccccg ae 14

Hough v. Pacific Insurance Co., 83 Haw. 457, 927 P.2d 858

CPROE. FI Es nccrvsisaiineicaaen ee 14, 15, 16, 17

ill

Johnson v. California, __ U.S. __, 124 S.Ct. 1833, 158 L. Ed.

BE GIO (BOG cccnccccccccsscritenstactstecsiunnateaadmane 7

Lamb Enterprises, Inc. v. Kiroff, 399 F.Supp. 409 (N.D. Ohio

597) acccccrsecosssensounsosenpunessebneneliseuisienliannnnaan ‘ceiissiantenieae 8

Maher v. Roe, 432 U.S. 464. 97 S. Ct. 2376, 53 L. Ed. 2d 484

( POT T? cccccccancdbcceosceaceeseucedusssuciapiatansiananns nine 14

Mever v. Grant, 486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d

42S C1 DGB) .x0corscosscccnsssosedicscoussensssnsuvensennsiensiaanaaanaaanas 12

New Orleans Waterworks Co. v. Louisiana, 185 U.S. 336, 22

Tom. jm FR. Bi fy, : : eee. & |

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645,

a PR hv Tk, 7p, , erm ee lan 13

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 65 S.Ct.

Cype 2 a...) ert &

Reich v. Freeport, 388 F.Supp. 953 (N.D. Ill. 1974) ............. 7

Thomas v. American Home Prods., 519 U.S. 913, 117 S.Ct.

ced, 136 1L.. BE. 2 Bet (Cl Petts |

United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588

(BE FB) .ccccsvcnccnccsnicckecenscencsiacenmnuaunsmn 12

Williams v. Vermont, 472 U.S. 14, 105 S. Ct. 2465, 86 L. Ed.

DE TT CESS) ccenccavsincacvccsuccsanesecaancsatasaumanamnassinenne 14

Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663, 90 L.Ed. 793

STATUTES

S0 Wile SOFT ssisdictgaenteimanEiee ee 7,8

FOP) SUED anicisanteindsduedmabainiananaanee fe 14, 15,17

RULES

United States Supreme Court Rules, Rule 10.................. 1,10

OPINIONS BELOW

Respondent FIRST INSURANCE COMPANY OF

HAWAII, LTD. (“FICOH”) incorporates herein by reference,

the opinions and orders cited by Petitioner EMERSON M.F.,

JOU, M.D. (“DR. JOU” and/or “Petitioner’”). See the

Summary Disposition Order issued by the Hawaii Supreme

Court, attached to Petitioner’s Petition for Writ of Certiorari

as Appendix A. Additionally relevant to this matter are (1)

the Final Judgment of the State of Hawaii, Circuit Court of

the First Circuit (“Circuit Court’) filed June 13, 2002, (2) the

Order Granting In Part and Denying In Part Defendant’s

Motion For Summary Judgment Filed August 20, 2001, of

the Circuit Court filed November 14, 2001, and (3) the Order

Re Motions In Limine of the Circuit Court filed October 29,

2001. See Appendices A, B and C.

BASIS OF JURISDICTION

There is no basis for jurisdiction in this Court.

Petitioner has not met requirements necessary to invoke

jurisdiction under 28 U.S.C. 1257. Further, Rule 10(b) of the

Supreme Court Rules (“SCR”) does not grant jurisdiction to

this Court, but merely indicates the general character of

reasons for which the Supreme Court will grant plenary

consideration. Thomas v. American Home Prods., 519 U.S.

913, 117 S.Ct. 282, 283, 136 L. Ed. 2d 201 (1996)(emphasis

added).

CONSTITUTIONAL AND OTHER PROVISIONS

INVOLVED

There are no Constitutional and/or Federal provisions

properly before this Court because Petitioner raises no

Federal questions with merit or substance. New Orleans

Waterworks Co. v. Louisiana, 185 U.S. 336, 22 S.Ct. 691, 46

L.Ed. 936 (1902). Issues raised by Petitioner were not passed

upon Federal grounds, but were resolved based upon well-

established state law. First National Bank v. Estherville, 215

U.S. 341, 30 S.Ct. 1521, 54 L.Ed. 223 (1910): California v.

Holladay, 159 U.S. 415, 16 S.Ct. 53, 40 L.Ed. 202 (1985).

CONCISE STATEMENT OF THE CASE

This case arises from decisions in a Workers’

Compensation proceeding in the Disability Compensation

Division of the State of Hawaii, Department of Labor and

Industrial Relations (“DLIR”), upon which FICOH obtained -

a Judgment against Petitioner in the First Circuit Court of the

State of Hawai in S.P. 95-0313. Upon obtaining the

Judgment, counsel for FICOQH began executing upon the

Judgment and, at each step, filed partial satisfactions of

judgment.

In June, 1998, after FICOH had obtained the face

value of the Judgment, FICOH’s counsel wrote to DR. JOU’s

counsel in an attempt to negotiate a final resolution of S.P.

95-0313 as well as the underlying DLIR_ proceeding.'

FICOH’s counsel proposed to have FICOH waive all claims

to fees and costs incurred in the executions on the Judgment

as well as accrued interest in return for DR. JOU’s dismissal

of his appeal in the DLIR proceeding. DR. JOU’s counsel,

however, did not respond.

Sometime in August, 1998, DR. JOU applied to First

Hawaiian Bank for an equity line of credit. Although his

application was approved, the bank did not provide the line

of credit because of the Judgment in S.P. 95-0313.

DR. JOU appealed the decisions in DLIR proceeding, first to the

Labor and Industrial Relations Appeals Board, then to the Hawaii

Supreme Court in 2001, and finally to this Court in 2004. See Jou v. First

Insurance Co. of Hawaii, Ltd., Supreme Court No. 04-355.

Eventually, in February, 1999, a Satisfaction of Judgment

and Release of Judgment Lien was filed.

On August, 15, 2000, DR. JOU filed his Complaint in

the Circuit Court of the First Circuit, State of Hawaii,

alleging thirteen causes of action. (Record on Appeal [“RA”]

Vol. | at 1-22).

On February 7, 2001, DR. JOU filed a Motion For

Summary Judgment. (RA Vol. | at 199-214). On March 7,

2001, FICOH filed a Cross-Motion For Summary Judgment.

(RA Vol. 2 at 1-60). On April 11, 2001, the Order Granting

In Part And Denying In Part Defendant’s Cross-Motion For

Summary Judgment was filed which granted summary

judgment as to DR. JOU’s Third, Sixth, Seventh, Tenth and

Twelfth Causes of Action. (RA Vol. 2 at 114-115). On the

following day, the order denying DR. JOU’s Motion For

Summary Judgment was filed. (RA Vol. 2 at 116-117).

On Avgust 20, 2001, FICOH filed its Motion For

Summary Judgment. (RA Vol. 3 at 156-209). That motion

was initially heard on September 10, 2001 with a further

hearing on September 24, 2001. (RA Vol. 9 at 35). The trial

court granted FICOH’s Motion as to DR. JOU’s Cause of

Action for Accounting, and as to all claims for damages, except

for damages relating to injury of credit and reputation, and

attorneys’ fees and costs in the trial court matter. (RA Vol. 9 at

35-37). The trial court also ruled that DR. JOU’s expert on

damages was stricken, that DR. JOU himself was stricken as an

expert witness (with respect to damages and otherwise), and

that DR. JOU did not state a claim for libel per se. (RA Vol. 9

at 35-37).

On September 28, 2001, FICOH filed a Motion In

Limine to Preclude Any Evidence of Financial Damages. (RA

Vol. 5 at 115-136). FICOH argued that because the trial court

ruled DR. JOU could not testify on his own behalf regarding

interest and real estate matters, and because DR. JOU failed to

timely identify an expert witness, DR. JOU had no witness who

could competently testify as to his alleged financial damages.

FICOH further argued that since the trai court granted

summary judgment as to all of Plaintiffs claims for damages

(except for damages relating to injury of credit, and attorneys’

fees and costs in the trial court matter), DR. JOU should be

precluded from presenting any evidence of financial damages.

FICOH also filed a Motion In Limine to Preclude Plaintiff

From Challenging the Amounts Garnished. (RA Vol. 5 at 136-

141). This Motion In Limine was advanced on the positions

that (1) Plaintiff initially sought an accounting to calculate

amounts FICOH_ garnished from Plaintiffs workers’

compensation claims, (2) the trial court’s grant of summary

judgment as to the Accounting therefore obviated the

admissibility of any evidence bearing on amounts garnished,

and (3) original jurisdiction over MHawaii’s workers’

compensation controversies rests with the DLIR and not

Hawaii’s circuit courts. On September 28, 2001, DR. JOU

filed a Motion In Limine for Reconsideration of Ruling on

Evidence Regarding Workers Compensation, reasserting that

damages involving workers’ compensation calculations were

not barred. (RA Vol. 6 at 32-37; RA Vol. 4 at 32-37). The tral

court granted FICOH’s Motion In Limines and denied DR.

JOU’s Motion In Limine. (RA Vol. 8 at 207-210).

During trial on the week of April 1, 2002, DR. JOU

dismissed his Second, Fourth, Eighth, Ninth and Eleventh

Causes of Action and FICOH dismissed its Counterclaim. (RA

Vol. 14 at 32-33). Only the two remaining causes of action

were submitted to the jury: abuse of process and libel or

defamation. See Special Verdict, RA Vol. 11 at 180-182.

The jury returned its Special Verdict on April 11, 2002

finding against DR. JOU on his defamation claim. The jury,

however, found that FICOH had committed an abuse of

process but that such conduct did not legally cause any

damages to DR. JOU. (RA Vol. 11 at 180-182). DR. JOU

filed a Notice of Taxation of Costs on April 22, 2002. (RA

Vol. 13 at 275-279). FICOH filed an objection to the Notice on

April 23, 2002. (RA Vol. 13 at 280-294).

FICOH filed its Motion For Taxation of Costs on May

2, 2002. (RA Vol. 14 at 1-21). Both FICOH’s Motion For

Taxation of Costs and DR. JOU’s Notice of Taxation of Costs

were heard by the trial court on May 20, 2002. (RA Vol. 14 at

98-101). The trial court denied DR. JOU’s Notice of Taxation

of Costs in its entirety (RA Vol. 14 at 98-99) and granted in

part and denied in part FICOH’s Motion For Taxation of Costs.

(RA Vol. 14 at 100-101).

The Final Judgment was filed on June 13, 2002. At no

time did the trial court decide any Federal issue, or address the

issues of equal protection and due process. In effect, the trial

court did not pass upon a Federal question. (RA Vols. 1-14).

DR. JOU filed his Notice of Appeal to the Hawaii

Supreme Court on June 26, 2002. (RA Vol. 14 at 105-110). In

his Opening Brief filed September 20, 2002 (“OB”), DR.

JOU briefly remarked that “[in refusing to permit Petitioner

to present the bulk of his damages to the jury, the trial court]

denied Dr. Jou of equal protection and due process of law.”

(OB at p. 2). No further arguments or authorities were raised

with respect to alleged Constitutional infringements. On

November 12, 2004, the Hawaii Supreme Court issued its

Summary Disposition Order (“SDO”), omitting any reference

to DR. JOU’s mention of due process and equal protection

rights. (See SDO generally).

DR. JOU now seeks review of claims for the 14"

Amendment right to due process and the 14'" Amendment

right to equal protection. DR. JOU asks this Court to find

the following:

1. The trial court and the Hawaii Supreme Court

deprived DR. JOU of his 14'" Amendment right to

due process when they denied DR. JOU the

opporiunity to present damages involving calculations

pursuant to Hawaii’s workers’ compensation laws,

despite summary adjudication of the same.

2. The trial court and the Hawaii Supreme Court treated

DR. JOU differently than other tort litigants, when

they precluded DR. JOU from presenting damages

involving workers’ compensation calculations,

despite the fact that original jurisdiction over

Hawaii's workers’ compensation controversies rests

with the DLIR.

SUMMARY OF REASONS FOR DENYING THE

PETITION

This Court has no jurisdiction to review decisions of

the Hawaii courts below because DR. JOU fails to meet the

jurisdictional requirements of 28 U.S.C. 1257(a). DR. JOU

did not properly raise Federal or Constitutional issues below,

nor did the Hawaii courts pass upon any Federal or

Constitutional questions. Even assuming DR. JOU met the

jurisdictional requirements, there is no compelling reason for

the court to grant review as the Hawaii courts did not decided

any question of Federal law. Finally, DR. JOU’s claims are

substantively devoid of merit.

ARGUMENT

I. THERE IS NO JURISDICTION FOR THIS COURT

TO REVIEW DECISIONS ISSUED BY HAWAII

COURTS BELOW

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court by writ of

certiorari where the validity of a treaty or statute of

the United States is drawn in question or where the

validity of a statute of any State is drawn in question

on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States, or

where_any title, right, privilege, or immunity is

specially set up or claimed under the Constitution or

the treaties or statutes of, or any commission held or

authority exercised under, the United States.

28 U.S.C. 1257(a) (emphasis added). Federal courts are

courts of limited jurisdiction empowered to hear only those

cases which have been entrusted to them by Congressional

grant of jurisdiction, and they have no power to review

judgment of state courts, except where a substantial Federal

question is involved. Reich v. Freeport, 388 F.Supp. 953

(N.D. Ill. 1974), aff'd on other grounds, 527 F.2d 666 (7"

Cir. 1975). Under 28 U.S.C. 1257, jurisdiction is further

limited to review of final judgments or decrees rendered by

the highest court of a State in which a decision could be had.

Johnson v. California, __ U.S. __, 124 S.Ct. 1833, 1834, 158

L. Ed. 2d 696 (2004).

For the Supreme Court to review a decision of a state

court, it must appear affirmatively from record not only that a

Federal or Constitutional question was presented to highest

court of state having jurisdiction, but that its decision of the

Federal or Constitutional question was necessary for

determination of case. Wilson v. Cook, 327 U.S. 474, 66

S.Ct. 663, 90 L.Ed. 793 (1946). It is not enough for the

record to show that a Federal question was argued or

presented to that court for decision. First National Bank v.

Estherville, 215 U.S. 341, 54 L.Ed. 223, 30 S.Ct. 152 (1910).

It must appear that decision of the Federal or Constitutional

question was necessary to the determination of cause and that

it was actually decided, or that judgment, as rendered, could

not have been given without deciding it. /d.

Accordingly, the Supreme Court has no jurisdiction to

review a State decision resting on adequate and independent

non-Federal grounds. Radio Station WOW, Inc. v. Johnson,

326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092 (1945). The

decision will not be reviewed even though the state court may

have also summoned to its support erroneous views of

Federal law. /d. Where a decision might have been rendered

on either Federal ground or state- ground, the Supreme Court

will not review the Federal ground on appeal as of right

under 28 U.S.C. § 1257 unless the state ground is too

insubstantial or insufficient to justify the result below. Lamb

Enterprises, Inc. v. Kiroff, 399 F.Supp. 409 (N.D. Ohio

1975), rev'd on other grounds 549 F.2d 1052 (6" Cir. 1977),

cert. denied 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed. 2d 1064

(1977). When the highest state court fails to pass upon a

Federal question, it will be assumed that the omission was

due to want of proper presentation in the state courts, unless

the aggrieved party in this Court can affirmatively show the

contrary. Board of Dirs. of Rotary Int'l v. Rotary Club of

Duarte, 481 U.S. 537, 550, 107 S.Ct. 1940, 1948, 95 L. Ed.

2d 474, 487 (1987).

As DR. JOU noted in his Petition at page 5, “the

Hawaii Supreme Court did not pass on the Federal questions

raised both in the trial court and in Petitioner’s brief before it,

on the merits.” (SDO, p. 1-3). The Hawaii Supreme Court

also did not render a decision as to DR. JOU’s equal

_ protection and due process claims because DR. JOU’s points

on appeal were decided pursuant to well-settled state

statutory and case law as well as established court rules.

(SDO, p. 2). Similarly, the trial court’s decision was void of

any reference to Federal or Constitutional claims. Thus, the

Supreme Court is without jurisdiction to review the trial court

and Hawaii Supreme Court judgments, and DR. JOU’s writ

of certiorari should be dismissed.

Il. THERE IS NO COMPELLING REASON TO

GRANT A WRIT OF CERTIORARI FOR

QUESTIONS OF STATE LAW

Review on a writ of certiorari is not a matter of right,

but of judicial discretion. A petition for a writ of

certiorari will be granted only for compelling reasons.

The following, although neither controlling nor fully

measuring the Court's discretion, indicate the

character of the reasons the Court considers:

(a) a United States court of appeals has entered a

decision in conflict with the decision of another

United States court of appeals on the same

important matter; has decided an important

Federal question in a way that conflicts with a

decision by a state court of last resort; or has so

far departed from the accepted and usual course of

judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an

exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important

Federal question in a way that conflicts with the

decision of another state court of last resort or of a

United States court of appeals;

(c) a state court or a United States court of appeals

has decided an important question of Federal law

that has not been, but should be, settled by this

Court, or has decided an important Federal

question in_a_ way that conflicts with relevant

decisions of this Court.

A petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule

{ of law.

SCR Rule 10 (emphasis added). Guided by SCR Rule 10, it

is clear that the issues raised by DR. JOU’s Petition for Writ

of Certiorari are not of the character necessary for review by

the United States Supreme Court.

The trial court and Hawaii Supreme Court did not

decide any question of Federal law. Rather, all issues

addressed were resolved based on well-established Hawaii

State law. Furthermore, DR. JOU does not challenge the

constitutionality of Hawaii’s laws, but asserts only that such

laws were erroneously applied. Thus, DR. JOU’s Petition

fails to meet the requirements of SCR Rule 10.

111.DR. JOU’S CLAIMS HAVE NO MERIT

Examining DR. JOU’s individual contentions, there is

no basis in law or fact for a ruling in his favor.

Substantively, DR. JOU’s claims have no merit.

A. There Is No Due Process Right to Present

Evidence on Damages Because Dr. Jou Was

Afforded A Real Opportunity to Protect His

Underlying Claims and Related Damages From

Summary Judgment

DR. JOU argues that a 14"" Amendment due process

violation occurred when he was prevented from presenting

damages involving calculations pursuant to Hawaili’s

workers’ compensation laws. In support of this contention,

DR. JOU cites to Allstate Ins. Co. v. Hague, 449 U.S. 302,

101 S.Ct. 633, 66 L.Ed.2d 521 (1981) and Brinkerhoff Trust

& Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed.

1107 (1930), for the proposition that due process provides

one with the opportunity to present his case and to be heard

in his support. Allstate Ins. Co., 449 U.S. at 311, 101 S.Ct. at

10

639, 66 L.Ed.2d at 530; Brinkerhoff Trust & Savings Co., 281

U.S. at 681, 50 S.Ct. at 454, 74 L.Ed. at 1114.

The standard for determining whether a state has

afforded due process of the law was enumerated in

Brinkerhoff Trust & Savings Co. as follows: “A State may

not deprive a person of all existing remedies for the

enforcement of a right, which the State has no power to

destroy, unless there is, or was, afforded to him some real

opportunity to protect it.” Brinkerhoff Trust & Savings Co.,

281 U.S. at 681, 50 S.Ct. at 454, 74 L.Ed. at 1114.

In this case, DR. JOU was afforded real and ample

opportunities to protect his presentation of damages

involving workers’ compensation calculations. DR. JOU

could have presented and adjudicated claims for the

computation of damages pursuant to Hawati’s workers’

compensation statutes in the DLIR administrative

proceedings.

DR. JOU was also afforded the opportunity to present

his other claims for damages to the-jury, had he timely

designated an expert witness and properly provided relevant

evidence to support such claims. DR. JOU however, failed to

meet his burden of proof. (RA Vol. 9 at 35-37).

DR. JOU was provided with ample opportunity under

state procedural rules, to protect his presentation of damages.

Having failed to take advantage of the opportunity, DR. JOU

cannot now claim a deprivation of due process.

11

B. Dr. Jou Was Treated Like Other Similarly

Situated Tort Claimants Seeking to Litigate

Damages Encompassed By Hawaii’s Workers’

Compensation Statutes

DR. JOU argues that the courts below violated his

right to equal protection when they prohibited him from

presenting evidence of damages involving calculations

pursuant to Hawaii workers’ compensation statutes, while

allowing other claimants to pursue tort actions for bad faith

processing of workers’ compensation benefits. DR. JOU

further argues that because the Hawaii courts have infringed

upon his fundamental right to a trial by jury and to petition

the government for redress of grievances, the strict scrutiny

standard should apply to his equal protection claim. DR.

JOU is wrong in both instances.

1. There is no First Amendment right to petition

for the redress of damages ostensibly caused by

a non-governmental party

“The First Amendment provides, in relevant part,

Congress shall make no law abridging the right of the people

to petition the Government for a redress of grievances.” BE

& K Construction Co. v. NLRB, 536 U.S. 516, 524, 122 S.Ct.

2390, 2395-2396, 153 L.Ed.2d 499, 510 (2002).° In 1876,

the Supreme Court limited the right to petition to grievances

connected with the powers or duties of the government.

United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588,

591 (1876).

> The Fourteenth Amendment makes this prohibition applicable to the

State of Hawaii. Mever v. Grant, 486 U.S. 414, 420, 108 S. Ct. 1886,

1891, 100 L. Ed. 2d 425, 434 (1988).

12

In this case, DR. JOU’s claims do not fall within the

scope of First Amendment protections. None of the

allegations contained in DR. JOU’s Complaint relate to the

powers or duties of the government. (RA Vol. | at 1-22).

Instead, DR. JOU’s causes of action at the trial court level

related entirely to the alleged acts or omissions of FICOH, a

private non-governmental party. /d. Accordingly, the right

to petition the government for redress is not implicated in this

matter.

2. There is no Seventh Amendment right to a jury

trial on damages where the underlying causes

of actions have been summarily dismissed

“No one is entitled in a civil case to trial by jury

unless and except so far as there are issues of fact to be

determined. It does not infringe the constitutional right to a

trial by jury, to require, with a view to formulating the issues,

an oath by each party to the facts relied upon.” Ex Parte

Peterson, 253 U.S. 300, 310, 40 S. Ct. 543, 546, 64 L. Ed.

919, 924 (1920). Simply stated, “summary judgment does

not violate the Seventh Amendment.” Parklane Hosiery Co.

v. Shore, 439 U.S. 322, 336, 99 S.Ct. 645, 654, 58 L.Ed.2d

552, 565 (1979)(citing Fidelity & Deposit Co. v. United

States, 187 U.S. 315, 319-321, 23 S. Ct. 120, 121-122, 47 L.

Ed. 194, 197-198 (1902)).

In the instant case, DR. JOU failed to show that

genuine issues of fact existed as to damages associated with

Hawaii's workers’ compensation scheme. (RA Vol. 9 at 35-

37). In view of the trial court’s ruling on summary judgment

against DR. JOU, the trial court did not violate DR. JOU’s

Seventh Amendment right when it subsequently granted

FICOH’s Motions In Limine. (RA Vol. 8 at 207-210).

Hence, DR. JOU fails to present any violation of his

fundamental rights by the trial court or the Hawaii Supreme

Court.

13

3. The Hawaii courts did not disparately apply

Hawaii ’s workers’ compensation statutes

The test of rationality applies in the absence of a

suspect classification or the infringement of a fundamental

right. Maher v. Roe, 432 U.S. 464, 478, 97 S. Ct. 2376,

2385, 53 L. Ed. 2d 484, 497 (1977). Accordingly, claims of

disparate treatment that do not employ suspect classifications

or infringe upon fundamental rights, must be upheld against

equal protection attacks when such “treatment” is rationally

related to a legitimate governmental purpose. Hodel v.

Indiana, 452 U.S. 314, 331, 101 S. Ct. 2376, 2387, 69 L. Ed.

2d 40, 55 (1981).

Applying the rational basis test to DR. JOU’s equal

protection claim, the Hawaii courts’ actions will be sustained

if related to a legitimate government purpose. However, we

do not reach the occasion to identify the Hawaii courts’

interest in applying a differential treatment, because DR. JOU

suffers no unequal treatment of the law. Williams v.

Vermont, 472 U.S. 14, 20, 105 S. Ct. 2465, 2470, 86 L. Ed.

2d 11, 19 (1985). Upon a closer reading of the authorities

cited by DR. JOU, Hough v. Pacific Insurance Co., 83 Haw.

457, 927 P.2d 858 (Haw. 1996) and Catron v. Tokio Marine

Management, Inc., 90 Haw. 407, 978 P.2d 845 (Haw. 1999),

it becomes evident that the Hawaii courts equitably applied

Hawaii Revised Statute (“HRS”) § 386-73 to the facts of his

case.

HRS § 386-73 provides that the State of Hawaii,

Director of Labor and Industrial Relations, shall have original

jurisdiction over all controversies and disputes arising under

Hawaii’s workers’ compensation statutes at HRS, Chapter

386. See HRS § 386-73. As DR. JOU correctly states,

Hough and Catron stand for the proposition that where

common law tort claims do not arise under HRS, Chapter

ot

386. such tort claims are not subdject to the original

jurisdiction provision of HRS § 386-73. In effect, relief for

common law torts may properly be sought in Hawaii’s circuit

courts, not withstanding other jurisdictional restrictions.

However. unlike the claimants in Hough and Catron who

pursued tort actions arising out of the bad faith processing of

workers’ compensation benefits, DR. JOU sought to litigate

in the trial court the calculation of a medical provider's

reimbursement for treatment of work injuries under Hawail’s |

workers’ compensation fee schedule.

In Hough, plaintiff made a claim for workers’

compensation benefits. Defendant, the employer’s workers’

compensation carrier, initially paid plaintiff's benefits, but

then terminated them. Plaintiff filed a complaint with the

Director of the DLIR. The director issued an order for

damages pursuant to Hawaii's workers’ compensation

scheme. Plaintiff then filed a claim in the circuit court for

defendant’s bad faith conduct in processing his workers’

compensation claim, as well as violations of HRS, Chapter

386. The court in Hough held that plaintiff's claims relating

to injuries arising out of his attempt to obtain workers’

compensation benefits, were not in the original jurisdiction of

the Director of the DLIR. Hough, 83 Haw. at 466, 927 P.2d

at 867. At the same time, it was specifically enumerated that

disputes arising under HRS, Chapter 386, remained in the

original jurisdiction of the Director of the DLIR. /d.

In Catron, the plaintiff also filed a claim for workers’

compensation benefits. Plaintiff and defendant insurance

carrier reached a settlement, which was later approved by the

Director of the DLIR. Subsequent to the settlement,

defendant delayed payments due under the settlement

agreement, and made harassing phone calls to plaintiff.

Plaintiff filed suit in the circuit court for breach of contract

and bad faith handling of his workers’ compensation claim.

However, Plaintiff did not attempt to enforce the settlement

15

agreement or obtain payment of damages attributable the

work related injury. Catron, 90 Haw. at 411. 978 P.2d at

849. Applying the holding in Hougia, the court in Catron

ruled that plaintiff's claims for tortious conduct were not

within the original jurisdiction of the Director of the DLIR.

Id.

DR. JOU’s claims are distinguishable from the-

decisions set forth in Hough and Catron because the circuit

courts therein did not confront the payment of compensation

for work related injuries itself, or the enforcement of DLIR

orders and settlements. Plaintiffs in Hough and Catron

sought “reparations for damages outside of the scope of

payment of workers’ compensation benefits.” Catron, 90

Haw. at 411, 978 P.2d at 849. DR. JOU on the other hand,

sought to litigate in the state court the payment and

calculation of medical reimbursements directly attributable to

workers’ compensation benefits, which is clearly within the

original jurisdiction of the DLIR.

More appropriate to the facts of our case is the

decision in Amantiad v. Odum, 90 Haw. 152, 977 P.2d 160

(Haw. 1999). In Amantiad, a plaintiff employee filed a third

party tort action. The employer then intervened to protect its

interest in reimbursement of workers’ compensation benefits

paid to plaintiff. The parties entered a settlement agreement,

which settled employee's claims against the third party tort

defendant, and any claims for future workers' compensation

benefits. By stipulation of the parties, the case was dismissed

with prejudice. Plaintiff later refused to execute the

settlement agreement and the employer filed a motion to

_ enforce the settlement agreement. Because there was a

dispute over payments of workers’ compensation benefits

itself, the appellate court held that the circuit court lacked

jurisdiction to enforce the settlement agreement. Amantiad,

90 Haw. at 167, 977 P.2d at 175.

16

Like the court in Amantiad, the trial and appellate

courts in this case determined that HRS § 386-73 denied the

trial court of jurisdiction to determine damages within the

scope of Hawaii workers’ compensation statutes, HRS,

Chapter 386. Although the result here is different than that of

Hough and Catron, the application of HRS § 386-73 here is

the same: HRS § 386-73 is applied to restrain the jurisdiction

of Hawaii’s circuit courts for claims arising under HRS,

Chapter 386. There was no different or inequitable

application of the law in DR. JOU’s case. The law was

properly applied and the result was appropriate.

DR. JOU has failed to make an adequate showing that

he suffered any unequal treatment of the law. DR. JOU has

not even suggested that other tort claimants were allowed to

litigate at the circuit court level, medical reimbursements

attributable to work related injuries. There is no law or

evidence to support DR. JOU’s equal protection claim.

CONCLUSION

For the foregoing reasons, Respondent FIRST

INSURANCE COMPANY OF HAWAII, LTD. respectfully

requests that DR. JOU’s Petition for Writ of Certiorari be

DENNIS E.W. O’CONNOR

KELVIN H. KANESHIRO

ELMIRA K.L. TSANG

Attorneys for Respondent

FIRST INSURANCE COMPANY

OF HAWAII, LTD.

17

REINWALD O’CONNOR & PLAYDON LLP

A Limited Liability Law Partnership

DENNIS E.W. O’CONNOR 561-0

KELVIN H. KANESHIRO 4535-0

Makai Tower Suite 2400

Pacific Guardian Center

733 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 524-8350

Attorneys for Defendant

FIRST INSURANCE COMPANY OF HAWAII, LTD.

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D.,

Plaintiff,

VS.

FIRST INSURANCE COMPANY OF

HAWAII, LTD., JOHN DOE 1 TO 10, DOE

CORPORATION | TO 10, DOE

PARTNERSHIP | TO 10, and DOE ENTITY

1 TO 10,

Defendants.

CIVIL NO. 00-1-2490-08

(Other Civil Action)

FINAL JUDGMENT

JUDGE: SABRINA S. MCKENNA

TRIAL DATE: APRIL 1, 2002

APPENDIX A

FINAL JUDGMENT

This action having come on for trial before the Court

and a jury, the Honorable Sabrina S. McKenna presiding, and

the jury having duly rendered its Special Verdict on April 11,

2002 in favor of Defendant FIRST INSURANCE COMPANY

OF HAWAII, LTD..and against Plaintiff,

IT IS HEREBY ADJUDGED, ORDERED AND

DECREED that pursuant to

1. the Order Granting In Part And Denying In Part

Defendant’s Cross-Motion For Summary Judgment

filed on April 11, 2001(granting summary judgment as

to Plaintiff's Third, Sixth, Seventh, Tenth and Twelfth

Causes of Action);

2. the Order Granting In Part And Denying In Part

Defendant’s Motion For Summary Judgment Filed

August 20, 2001 filed on November 14, 2001 (granting

summary judgment as to Plaintiff's Thirteenth Cause of

Action);

3. the Order Dismissing Certain Causes of Action And/Or

Claims With Prejudice filed on May 9, 2002

(dismissing Piaintiff's Second, Fourth, Eighth, Ninth

and Eleventh Causes of Action and Defendant’s

Counterclaim); and

4. the Special Verdict filed on April 11, 2002 (finding in

favor of Defendant and against Plaintiff on Plaintiff's

First and Fifth Causes of Action),

judgment is entered in favor of Defendant FIRST

INSURANCE COMPANY OF HAWAII, LTD. and that

Plaintiff takes nothing against said Defendant.

IT IS FURTHER ADJUDGED, ORDERED AND

DECREED that, pursuant to the Order Granting In Part And

Denying In Part Defendant’s Motion For Taxation of Costs

which was filed herein on Jun 13 2002, 2002, judgment is

entered in favor of Defendant FIRST INSURANCE

COMPANY OF HAWAII, LTD. and against Plaintiff for costs

in the amount of $ 4,079.34.

All other claims, if any, not specifically identified in

this Final Judgment are dismissed.

DATED: Honolulu, Hawaii, JUN13 2002.

SABRINA S. MCKENNA /S/

JUDGE OF THE ABOVE-ENTITLED COURT

APPROVED AS TO FORM:

STEPHEN M. SHAW

Attorney for Plaintiff

Final Judgment; Jou v. First Insurance Company; Civil No.

00-1-2490-08 (SSM); First Circuit Court

Ee ey

REINWALD O’CONNOR & PLAYDON LLP

A Limited Liability Law Partnership

DENNIS E.W. O’°CONNOR 561-0

KELVIN H. KANESHIRO 4535-0

Makai Tower, Suite 2400

Pacific Guardian Center

733 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 524-8350

Attorneys for Defendant

FIRST INSURANCE COMPANY OF HAWAII. LTD.

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D..

Plaintiff,

VS.

FIRST INSURANCE COMPANY OF

HAWAII, LTD., JOHN DOE 1 TO 10, DOE

CORPORATION | TO 10, DOE

PARTNERSHIP | TO 10, and DOE ENTITY

1 TO 10,

Defendants.

CIVIL NO. 00-1-2490-08

(Other Civil Action)

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

FILED AUGUST 20, 2001

APPENDIX B

—————— ee =e Ee ee ee eee ee eeeeS—eeeeE—eeeeeeeeeeeeeeeeeEeEeEeEeEeEeEeEeEyEeeeyEeeEeEeEeeEeEeEeEeEeEeEeEeEeEeEeeEeEeoerreoeee

DATE: SEPTEMBER 10, 2001

TIME: 10:30 A.M.

JUDGE: SABRINA S. McKENNA

TRIAL DATE: OCTOBES8, 2001

ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT FILED AUGUST 20, 2001

Defendant’s Motion For Summary Judgment filed on

August 20, 2001 was heard on September 10, 2001 at 10:30

a.m. and on further hearing on September 24, 2001 at 11:15

a.m. before the Honorable Sabrina S. McKenna. Stephen M.

Shaw, Esq. appeared on behalf of Plaintiff and Kelvin H.

Kaneshiro, Esq. appeared on behalf of Defendant First

Insurance Company of Hawaii, Ltd. The Court, having

reviewed the written submissions of counsel, having heard

the oral arguments of counsel, and having reviewed the

records and files herein, and good cause appearing, therefore,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that Defendant’s Motion For Summary Judgment

filed on August 20, 2001 is granted as to the following claims

for damages:

l. Expenses incurred because of inability to obtain car

loan to buy a new car;

2. Interest rate difference because of lost opportunity

to refinance at a lower rate;

a Additional interest and loan fee incurred because of

inability to obtain line of credit to pay debts;

ete

I ARE OE

:

4. Lost opportunity for refinancing in order to invest

for profit in business projects. I am computing the

costs.

> 3 Cost of borrowing money from family members

and friends;

6. Attorney’s fees to defend against unlawful

garnishment; and

i? Costs to defend unlawful garnishment.

- Defendant’s Motion For Summary Judgment is also

granted as to the Thirteen[sic] Cause of Action — Accounting.

The Court further finds that Plaintiffs libel claim is not

a claim for libel per se.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that Richard L. Bowen, Ph.D. is stricken as a

witness and Plaintiff Emerson M.F. Jou, M.D. is stricken as

an expert witness.

Defendant’s Motion For Summary Judgment filed on

August 20, 2001 is denied with respect to Plaintiffs claim for

attorney’s fees incurred in obtaining the filing of the

satisfaction of judgment.

Defendant’s Motion For Summary Judgment filed on

August 20, 2001 is further denied with respect to Plaintiff's

claim for injury to credit and reputation.

DATED: Honolulu, Hawaii, NOV 13 2001.

SABRINA S. MCKENNA /S

JUDGE OF THE ABOVE-ENTITLED COURT

APPROVED AS TO FORM:

STEPHEN M. SHAW

Attorney for Plaintiff

Jou v. First Insurance Company, Civil No. 00-1-2490-08

(SSM). Order Granting in Part and Denying in Part

Defendant’s Motion For Summary Judgment Filed August

20, 2001

REINWALD O’CONNOR & PLAYDON LLP

A Limited Liability Law Partnership

DENNIS E.W. O’°CONNOR 561-0

KELVIN H. KANESHIRO 4535-0

Makai Tower, Suite 2400

Pacific Guardian Center

733 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 524-8350

Attorneys for Defendant

FIRST INSURANCE COMPANY OF HAWAII, LTD.

IN THE CIRCUIT.COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D..

Plaintiff,

VS.

FIRST INSURANCE COMPANY OF

HAWAII, LTD., JOHN DOE 1 TO 10, DOE

CORPORATION | TO 10, DOE

PARTNERSHIP | TO 10. and DOF ENTITY

1 TO 10,

Defendants.

CIVIL NO. 00-1-2490-08

(Other Civil Action)

ORDER RE: MOTIONS IN LIMINE

APPENDIX C

DATE: OCTOBER 11, 2001

TIME: 1:30 P.M.

JUDGE: SABRINA S. McKENNA

OLD TRIAL DATE: OCTOBER 8, 2001

NEW TRIAL DATE: JANUARY 7, 2002

ORDER RE: MOTIONS IN LIMINE

Motions In Limine filed by Plaintiff Emerson M.F.

Jou, M.D. and Defendant First Insurance Company of

Hawaii, Ltd. on September 28, 2001 were heard on October

11, 2001 at 1:30 p.m. before the Honorable Sabrina S.

McKenna. Stephen M. Shaw, Esq. appeared on behalf of

Plaintiff and Dennis E.W. O’Connor, Esq. and Kelvin H.

Kaneshiro, Esq. appeared on behalf of Defendant. The

Court, having reviewed the written submissions of counsel,

having heard the oral arguments of counsel, and having

reviewed the records and files herein, and good cause

appearing, therefore,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED as follows:

l. Plaintiffs Motion in Limine No. | Re: Rule 408,

Hawaii Rules of Evidence is DENIED;

No

Plaintiff's Motion in Limine No. 2 Re: Attorney

Fees Recoverable for Abuse of Process of

3. Malicious Prosecution is DENIED:

4. Plaintiffs Motion in Limme No. 3 Re: Prior Bad

Acts HRE 404(b) is GRANTED;

10.

11.

12.

Plaintiff's Motion in Limine No. 4 Re:

Reconsideration of Ruling on Evidence Regarding

Workers Compensation is DENIED:

Plaintiff's Motion in Limine No. 5 to Permit Lay

Technical Opinion; Memorandum in Support of

Motion is DENIED;

Plaintiff's Motion in Limine No. 6 Re:

Admissions or Concession Relating to Dr. Jou’s

Alleged Settlement Conduct is DENIED:

Plaintiff's Motion in Limine No. 7 Re: Pretrial

Ruling on Punitive Damages is DENIED

WITHOUT PREJUDICE. The Court will allow

evidence of Defendant’s net worth to be presented

to the jury only after Plaintiff establishes proper

evidence of actual malice on the part of

Defendant;

Plaintiff's Motion in Limine No. 8 Re: Inference

That Suppressed Witness Identification Would

Lead to Favorable Proof on Liability and

Damages is DENIED;

Plaintiff's Motion in Limine No. 9 Re: No Advice

of Counsel Defense is DENIED:

Plaintiff's Motion in Limine No. 10 Re: FICOH’s

Outside Counsel are Agents, House Counsel is an

Employee is DENIED;

Plaintiff's Motion in Limine No. 11 Re: FICOH to

Produce Its Employee Witnesses for Trial was

WITHDRAWN by Plaintiff:

13.

14.

15.

16.

17.

18.

19.

Defendant’s Motion in Limine No. | to Preclude

Recently Identified Witnesses and to Strike First

Amended Final Naming of Witnesses is

GRANTED IN PART and DENIED IN PART.

The Motion is granted as to Liz Nelander, Marivic

Puaa, Eleanor Cornell, Jack Suyderhoud, Ph.D..,

Richard L. Bowen, Ph.D. and Joel Criz. The

Motion is denied as to Leslie R. Kop, Esq. and Ed

Greevy. The Motion is moot and, therefore,

denied as to John A. Roney, Esq.:;

Defendant’s Motion in ’.imine No. 2 to Preclude

Any Evidence of Financial Damages is

GRANTED;

Defendant’s Motion in Limine No. 3 to Preclude

Plaintiff from Challenging the Amounts

Garnished is GRANTED:

Defendant’s Motion in Limine No. 4 to Preclude

Plaintiff from Testifying as an Expert Witness is

GRANTED;

Defendant’s Motion in Limine No. 5 to Preclude

Plaintiff from Calling Robert Catron as a Witness

is GRANTED;

Defendant’s Motion in Limine No. 6 to Preclude

Evidence from Plaintiff as to Debt Owed to

Family and Friends is GRANTED;

Defendant’s Motion in Limine No. 7 to Preclude

Evidence from Plaintiff as to Attorney’s Fees

Incurred is GRANTED;

th ib ne Net AE APN ictal abel Oe chs th Mit

IN LAS Shh Rad lea Tee NEE AE OPIN ROS FANS

BACAR IONE ORR 0 eA ON

20. Defendant’s Motion in Limine No. 8 to Preclude

Plaintiff from Calling Certain Witnesses is

GRANTED IN PART and DENIED IN PART.

The Motion is granted as to Allen Uyeda and

Richard K. Lee. The Motion is denied as to Dean

E. Ochiai, Esq. The Motion is denied without

prejudice as to Ben Bondroff. If Plaintiff properly

establishes a claim for punitive damages, Mr.

Bondroff may be called as a witness to testify

regarding Defendant’s financial condition;

IT IS FURTHER ORDERED, ADJUDGED AND

DECKEED that Plaintiff's motion to continue the trial date is

denied and that further discovery will be limited only to

l. depositions of certain new witnesses revealed by

certain privileged documents which the Court

ordered Defendant to turn over to Plaintiff on

September 5, 2001; to wit, Leroy T. Kuwasaki,

Esq., Leslie R. Kop, Esq., Dean E. Ochiai, Esq.

and Ed Greevy, limited to

4 relevant new matters or issues not previously

discoverable arising from the those certain

privileged documents which the Court ordered

Defendant to turn over to Plaintiff on September

5, 2001; and

3. a deposition of a 30(b)(6) representative for

Defendant limited to new matters or issues raised

by the above-described documents or depositions.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the parties submit this matter for mediation

as soon as possible.

DATED: Honolulu, Hawaii, OCT 29 2001.

SABRINA S. MCKENNA /S/

JUDGE OF THE ABOVE-ENTITLED COURT

APPROVED AS TO FORM:

STEPHEN M. SHAW

Attorney for Plaintiff

Jou v. First Insurance Company, Civil No. 00-1-2490-08

(SSM). Order Re: Motions In Limine