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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 976

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1389%3A2. Public record. Not legal advice.