R.H. v. Hayashi
CourtHawaii Supreme Court
Date FiledOctober 9, 2026
DocketSCAP-23-0000277
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
09-OCT-2026
10:44 AM
Dkt. 42 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
R.H., Individually and as Guardian Ad Litem for A.H.,
an Incompetent Adult,
Plaintiff-Appellant/Cross-Appellee,
vs.
KEITH T. HAYASHI, in his official capacity as
Superintendent of the Hawaiʻi Department of Education and
STATE OF HAWAIʻI DEPARTMENT OF EDUCATION,
Defendants-Crossclaimants-Crossclaim Defendants-Appellees/Cross-
Appellees,
and
STATE OF HAWAIʻI,
Defendant-Crossclaimant-Crossclaim Defendant-
Appellee/Cross-Appellant,
and
CHRIS NAKAGAWA and ANTHONY JONES,
Defendants-Crossclaimants-Crossclaim Defendants-
Appellees/Cross-Appellees,
and
LANAKILA PACIFIC, a non-profit organization,
Defendant-Crossclaim Defendant-Crossclaimant-
Appellee/Cross-Appellee.
________________________________________________________________
SCAP-XX-XXXXXXX
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CIV. NO. 1CC121003327)
OCTOBER 9, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ.,
AND CIRCUIT JUDGE REMIGIO, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Both the plaintiffs and defendants appeal a circuit court
final judgment in this transfer case.
A.H. (pseudonym “Amy”) has severe cognitive disabilities
and lacks capacity to consent to sex. While a student at
McKinley High School (“McKinley”), Amy was sexually abused by
male students. The abuse eventually caused her to suffer a
psychotic breakdown and sustain serious, continuing
psychological injuries.
Amy’s mother (“Mother”) filed this negligence lawsuit on
behalf of Amy and herself (collectively, “Plaintiffs”) in the
Circuit Court of the First Circuit (“circuit court”). The State
of Hawai‘i, its Department of Education (“DOE”), and DOE
employees (collectively, “the State”) were named as defendants.
Plaintiffs alleged that the State negligently failed to protect
Amy from repeated sexual abuse while she attended McKinley.
The circuit court presided over a sixty-six-day bench
trial. There was extensive evidence that school personnel knew
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of Amy’s significant cognitive disabilities, recognized her
extraordinary vulnerability to sexual exploitation, were
repeatedly confronted with warning signs that she was being
sexually abused, but failed to take reasonable measures to
prevent it.
The circuit court concluded that the State negligently
failed to protect Amy. It determined that Plaintiffs’ injuries
and requisite treatment merited a total damages award of more
than $14 million, more than half for special damages. But
without any request from the State that it do so, in its written
decision, the circuit court apportioned 30% of the fault to the
male students and reduced Plaintiffs’ damages award by that
percentage.
This sua sponte apportionment is the main issue on appeal.
The circuit court cited Hawai‘i Revised Statutes (“HRS”) §
663-10.5 (Supp. 2017) as the basis for this apportionment. That
statute provides in relevant part:
§663-10.5 Government entity as a tortfeasor; abolition of
joint and several liability. (a) Any other law to the
contrary notwithstanding, . . . in any case where a
government entity is determined to be a tortfeasor along
with one or more other tortfeasors, the government entity
shall be liable for no more than that percentage share of
the damages attributable to the government entity[.]
(b) For purposes of this section, the liability of a
government entity shall include its vicarious liability
for the acts or omissions of its officers and
employees.
(c) For purposes of this section, “government entity” means
any unit of government in this State, including:
(1) The State[.]
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Plaintiffs contend the circuit court improperly reduced
their recovery when the State never pursued apportionment of
liability to the male students. The State pled HRS § 663-10.5
as a defense in its answer but never argued that the male
students should bear a portion of liability. Rather, in its
closing argument and proposed findings and conclusions, the
State briefly argued that if the State was found liable, then
part of the liability should be apportioned to Mother.
Specifically, the State asked the circuit court to reduce
the Plaintiffs’ damages by Mother’s alleged negligence in
failing to provide more information to the school. The circuit
court rejected this argument but then, on its own accord,
allocated liability to the male students.
On Plaintiffs’ points of error on appeal, we hold that the
circuit court’s sua sponte allocation of fault to the male
students violated Plaintiffs’ Hawaiʻi constitutional due process
rights. Plaintiffs were deprived of notice and an opportunity
to be heard on whether the boys were actually “other
tortfeasors” under HRS § 663-10.5 and, if so, what percentage,
if any, should be allocated to them. We set out what steps due
process requires for an “other tortfeasor” determination.
We also hold that there was insufficient evidence that the
male students qualified as “other tortfeasors” under HRS § 663-
10.5, especially because the circuit court explicitly found
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
little to no evidence the boys knew any details about Amy’s
cognitive disabilities or that they were aware or should have
been aware that Amy lacked capacity to consent to sex.
We further hold that apportionment of liability under HRS §
663-10.5 is an affirmative defense for which the State did not
meet its burden of proof.
Finally, based on these holdings, we also hold that the
circuit court erred by denying Plaintiffs’ motion to amend the
judgment to reverse its apportionment decision.
On cross-appeal, the State argues that the circuit court
abused its discretion by limiting Amy’s deposition, refusing to
order a Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule 351
medical examination of Amy, and awarding excessive damages.
These arguments are without merit. The circuit court acted
within its discretion by denying additional discovery based on
the extensive evidence indicating that further examination of
1
HRCP Rule 35 states, in relevant part:
Rule 35. Physical and Mental Examination of Persons. (a)
Order for Examination. When the mental or physical
condition . . . of a party, or of a person in the custody
or under the legal control of a party, is in controversy,
the court in which the action is pending may order the
party to submit to a physical or mental examination by a
suitably licensed or certified examiner or to produce for
examination the person in the party's custody or legal
control. The order may be made only on motion for good
cause shown and upon notice to the person to be examined
and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the
person or persons by whom it is to be made.
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Amy, whether through a continued deposition or a HRCP Rule 35
examination, would likely cause her significant psychological
harm. Finally, the damages awarded by the circuit court were
supported by the record.
We therefore affirm the circuit court’s findings,
conclusions, and judgment except for its allocation of 30% of
the liability to the male students. We remand to the circuit
court for entry of an amended judgment consistent with this
opinion.
II. Background
A. Factual Background
This factual background is derived from the circuit court’s
findings of fact.
Amy was a special education student with serious cognitive
impairments. She was identified as a special education student
in the third grade and since then had Individualized Education
Plans (“IEP”) that identified her educational needs.
Amy had no obvious physical manifestations of her cognitive
disability. But her impairments were severe, and she was
functioning far below her chronological age and appearance.
When Amy entered McKinley High School in 2008, she functioned at
the level of a five-year-old, or even younger. Amy’s disability
was consistently affirmed during multiple cognitive assessments,
including testing that showed an IQ score of 40.
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
A chronology of relevant events follows.
August 2008: Amy began ninth grade at McKinley. McKinley
received her eighth-grade IEP and was aware she was a
particularly low-functioning special education student who
required monitoring. Amy’s eighth-grade IEP recommended that
she not be placed with general education students, particularly
due to a history of bullying.
Fall 2008: Despite this recommendation, Amy was initially
placed in two pre-algebra classes with significantly higher-
functioning students. The teacher, Mr. Choy (“Choy”),
immediately determined that his class was not suitable for Amy.
Choy was also aware of incidents in which other children in his
class teased Amy.
He also heard that students were talking about Amy
performing oral sex on a higher-functioning boy. The only step
Choy took regarding this was to discuss the allegation with the
boy, who denied it. There is no record of the school
administration or of Mother being informed. Choy did recommend,
however, that Amy be placed in a non-diploma track program that
teaches simple workplace skills such as cooking, how to be on
time, and how to make change. In November 2008, Mother also
requested that Amy be moved into this non-diploma track program.
Despite the recommendation, Amy was kept in her assigned
classes.
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
February 2009: By February 2009, multiple additional
teachers had become aware that Amy was reportedly giving oral
sex to several different boys. For instance, Ms. Folger
(“Folger”) had heard Amy mentioning that she was giving oral sex
to boys at school. Folger reported this information to Mr.
Greenland (“Greenland”), Amy’s care coordinator, and Maile
French, the Special Education Department Chair.
There is no evidence that this information was further
reported to school administrators or to Mother, or that the
report was investigated.
Also during her freshman year, Amy left campus unnoticed
with a senior and went to Ala Moana Beach Park, where he
apparently raped her orally, vaginally, and anally in a public
bathroom. This incident was not reported or investigated at the
time.
November 2009: When Amy was in tenth grade, Greenland
called Mother and informed her that Amy was performing oral sex
on various boys. But around the same time, Greenland also sent
Mother inappropriate personal text messages, including calling
her “beautiful” and offering to “bring her some soup.” Mother
renewed her request that Amy be transferred to the non-diploma
track program.
Mother began seeing a therapist to get advice on how to
speak with Amy about sex and about what was going on.
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Spring 2010: In spring 2010, Amy was moved to the non-
diploma track program. She was moved into Mr. Nakagawa’s
(“Nakagawa”) class. Nakagawa also took over as her care
coordinator from Greenland.
In April 2010, various teachers reported to Nakagawa that
Amy “displays inappropriate conduct w/her male peers & this
needs to be addressed.” The report also noted that “she was
also caught in the closet a couple of times w/the same male
peer, after being told not to do so.”
Nakagawa did not act on the report, nor was Mother
notified.
August 2010: In August 2010, another instructor submitted
a report documenting concerns about Amy’s interactions with male
students. The report was provided to Choy, who, in turn,
reported the concerns to Nakagawa. Although Choy understood
that Amy’s cognitive disabilities could be contributing to her
interactions with male peers and recognized that she sought
attention, both Choy and Nakagawa minimized the reported
concerns by characterizing Amy as “boy crazy.”
Mother was not notified of these reported concerns.
Fall 2010: Amy’s Fall 2010 IEP reflected Nakagawa’s concern
that peers might take advantage of Amy. But the record does not
indicate that Nakagawa further reported these concerns, informed
Mother, or that any steps were taken to address them.
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Mr. Price (“Price”), Amy’s art teacher, was told by two
girls that Amy “performed oral sex on a boy at school.” Price
confirmed that he had previously heard similar rumors about Amy
and sex.
Price did not act upon the information until after the
additional January 2011 incident next described. At that time,
he did not inform Amy’s care coordinator, any school
administrator, or Mother.
January 2011: On January 4, 2011, Amy and a boy both asked
Price if they could go to the bathroom. Price allowed them to
go to the bathroom at the same time. Another student reported
she saw the boy with Amy in the boys’ bathroom. Price took both
Amy and the boy to the office of Vice-Principal Jones (“VP
Jones”).
Although the boy was in the same class as Amy and had a
specific learning disability, he was not severely cognitively
disabled like Amy. Without any investigation, the school
determined that the sexual conduct was consensual. The school
then suspended both Amy and the boy.
Before deciding to suspend Amy, VP Jones did not review
Amy’s IEP or speak with Mother. After deciding to suspend Amy,
VP Jones met with Mother but would not identify the boy
involved. The school did not review Amy’s IEP to determine
whether her cognitive disabilities affected her ability to
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
consent, nor did it ask whether the boy knew Amy was cognitively
disabled. The incident was not reported to the police.
February 2011: In February 2011, Mother reported to the
school by email that a boy wrote a note to Amy asking her to
meet out of view of the cameras to “hug.” Mother also
discovered that the boy had arranged to have phone sex with Amy.
There is no evidence the school took any action after
receiving this email.
March 2011: Worried about Amy’s safety, Mother had Amy
examined by Dr. Tyson, a licensed psychologist. Dr. Tyson
assessed Amy and wrote a report delivered to the school in March
2011 stating that Amy “should not ever be unsupervised while on
school grounds.”
One-on-one supervision was a fairly standard service for a
student with severe cognitive disabilities. In fact, Nakagawa
had never previously had to recommend one-on-one supervision
because most non-diploma students already had an assigned one-
on-one aide. Yet, Amy was still not assigned a one-on-one aide.
April 2011: Amy started seeing therapist Karlene Perez
(“Perez”). Amy told Perez about the January 4, 2011 incident
and that “she didn’t want to do it and that she was scared.”
Also, another student reported to Choy that Amy touched the
crotch of a male student. Choy spoke with Amy about the
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
incident. Amy cried and told Choy she was afraid that the boy
would not like her “if she did not do it.”
There is no evidence that Choy reported the incident to
anyone.
Becoming increasingly concerned for Amy’s safety, Mother
again informed the school she urgently believed Amy needed one-
on-one supervision. The record does not reflect that McKinley
ever provided such supervision. A few days later, Mother sent
an email to the school reporting that a boy had stuck a note to
Amy’s back that said “kick me” and that another student hit Amy
hard enough to leave a mark.
There is no evidence that the school acted in response to
these concerns.
On April 15, 2011, a behavioral assessment in school
records concluded that, “whenever unsupervised and a peer asks
[Amy] for something, [Amy] has given in to peer persuasion,
including sex acts, to gain peer attention and friendship.” The
record does not identify who prepared the assessment or explain
the circumstances under which it was conducted. Based on that
assessment, the school created a Behavioral Support Plan
requiring that any future incidents be reported to Mother and
the vice-principal.
May 2011: Mother sent another email to school
administrators reporting that Amy had again been pressured by a
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
boy who wanted her to go to a specific building to “do bad
things.” Amy reported that the boy said, “come here, suck my d-
-.”
Mother again demanded that the school provide increased
supervision. The school did not do so.
August 2011: Shortly after beginning twelfth grade, after
years of repeated sexual assaults, Amy experienced a
catastrophic psychotic breakdown. Within a week of starting her
senior year at McKinley, she displayed a marked change in
behavior and became increasingly agitated. She reported feeling
“scared” and that “she couldn’t feel her heart.” She had to
come home early from a church event due to this fear. Amy told
a school employee that “everyone was looking at her.” She also
said an adult female neighbor wanted to have sex with her.
Within a few days, Amy was clearly hallucinating and was
not lucid. She was hospitalized on August 8, 2011, and remained
so for three months.
Amy was provided with medication and started to feel safer
by the end of August, when she was able to speak about what was
causing her to feel scared. Amy described repeated sexual abuse
by students at McKinley. She was diagnosed with post-traumatic
stress disorder (“PTSD”) stemming from the sexual abuse.
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
PTSD is typically treated with cognitive behavioral
therapy. But cognitive behavioral therapy does not work for Amy
due to her cognitive disability.
November 2011: Amy was discharged from the hospital on
November 2, 2011. A typical stay for a child at an inpatient
center is about seven to ten days; Amy’s hospitalization lasted
three months.
Her doctors recommended that she not return to McKinley.
She was then transferred to Variety School.
In 2013, Amy began seeing psychiatrist Angela King, M.D.
(“Dr. King”). Dr. King confirmed that sexual abuse at McKinley
was a cause of Amy’s PTSD, and that Amy could not benefit from
the best available treatment, cognitive behavioral therapy,
because of her cognitive deficits. Dr. King opined that Amy
would need treatment for the rest of her life resulting from the
events at McKinley.
In 2014, Mother also sought treatment from Dr. King. Dr.
King diagnosed Mother with panic disorder and major depressive
disorder, and opined that Amy’s abuse and PTSD were substantial
factors in her diagnosis.
In 2015, Dr. Tyson assessed Amy and concluded that she had
PTSD due to the history of sexual assault and that she should
stay at Variety School because of the close supervision
available.
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
By the time the circuit court made its findings, Amy was
twenty-seven years old. Her PTSD remained persistent and
untreatable.
B. Circuit Court Proceedings
1. Complaint and Pre-Trial Discovery Issues
On February 14, 2014, Plaintiffs filed their first amended
complaint. Plaintiffs asserted claims against the State arising
from its failure to protect Amy from repeated sexual abuse while
she attended McKinley and sought damages for the severe
physical, psychiatric, psychological, and emotional injuries
that followed.
Before trial, the parties engaged in extensive discovery
concerning Amy’s condition. Issues arose from the State’s
discovery efforts. The circuit court appointed a discovery
master on June 4, 2015.
The State sought to depose Amy, and Plaintiffs moved for a
protective order seeking to prohibit or limit the deposition.
Two psychiatrists and two psychologists provided medical
opinions that Amy was incompetent to testify and that subjecting
her to a deposition “would subject her to a substantial risk of
harm and re-victimization based on her medical history,
hospitalization and diagnosis of PTSD, and her subsequent
treatment.” Some excerpts from these reports are as follows:
Dr. King, Amy’s psychiatrist, reported:
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Due to these symptoms along with her intellectual
disability it is unlikely that she will ever be able to
benefit from the gold standard of trauma therapy,
specifically Trauma Focused Cognitive Behavioral Therapy,
since it has a higher chance of re-traumatizing her.
Similarly, being placed in any situation that will cause
her to discuss her past trauma experiences, including going
through deposition will likely retrigger her trauma
symptoms and may even lead to re-hospitalization since she
does not have the ability to be able to process the trauma
due to her intellectual disability.
Therefore, it is not medically recommended to place her in
an anxiety inducing setting which could trigger her PTSD
symptoms and risk hospitalization.
Dr. Anthony Urquiza (“Dr. Urquiza”), a psychologist who
specializes in treating victims of sexual molestation, wrote:
It is common for victims of sexual assault to experience
trauma symptoms that are sustained for many years after
their victimization. Thoughts and images of being sexually
victimized can trigger intense and de-stabilizing mental
health symptoms. [Amy] has a multi-year history of serious
mental health symptoms associated with her prior sexual
victimization, has had a prior inpatient psychiatric
hospitalization due to psychotic behavior, and is currently
taking several types of psychiatric medication (i.e., an
antidepressant, an antipsychotic, and medication to
decrease agitation). Asking [Amy] a series of questions
about her prior sexual victimization may trigger thoughts
and feelings that are likely to increase her trauma-based
symptoms. Given the severity of her past symptoms (e.g.,
self-mutilation, severe psychosis, prior inpatient
psychiatric hospitalization), direct questioning of [Amy]
on this topic could result in a resumption of these
problems or other devastating consequences.
. . . .
Given the high potential for a severely negative traumatic
response to being questioned, participating in a deposition
or court proceeding is an unsafe proposal that would
endanger [Amy’s] mental health. The presence of a ‘third
person’ to oversee the experience of [Amy] being a witness
would not decrease the risks associated with responding to
such questions.
After additional briefing and a hearing on January 19,
2016, the circuit court denied Plaintiffs’ request for a blanket
prohibition on Amy’s deposition, indicating that the State had a
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
legitimate interest in preparing for trial. But the circuit
court found good cause to impose protective measures to
“minimize any anxiety-inducing situation and to protect [Amy]
from emotional distress or risk of harm to her psychological
well-being.” The circuit court also reserved deciding on Amy’s
competency to testify, ruling that questions regarding whether
the deposition testimony would be admissible at trial would not
preclude the State from taking Amy’s deposition.
The circuit court (1) ordered that Amy’s deposition occur
at the Children’s Justice Center or another child-friendly
location, (2) limited questioning to ninety-minute sessions and
seven hours total, (3) required the discovery master to observe
the deposition through a one-way mirror, with authority to
recess or terminate the deposition if Amy became distressed, (4)
permitted Amy's therapist to monitor the proceedings, and (5)
authorized the discovery master to implement any additional
protective measures deemed necessary.
Amy’s first ninety-minute deposition session took place on
March 31, 2016. Amy’s treating psychiatrist, Dr. King, attended
the deposition, during which Amy exhibited significant anxiety.
After examining Amy, Dr. King concluded that the deposition had
caused substantial emotional deterioration and that no
additional deposition could be conducted safely because Amy’s
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
chronic PTSD and intellectual disability prevented meaningful
recovery. Dr. King explained:
My significant concern is that [Amy] reported being scared,
worried and uncomfortable and the bulk of the most
difficult and serious material, including [Amy]’s
victimization, is likely to be raised in the next session.
My clinical impression is that [Amy]’s fear combined with
any questions about sexual victimization together with her
preoccupation that [the attorney conducting the deposition
questioning] knows where she lives will trigger her complex
PTSD and a resumption of her psychotic symptoms, requiring
hospitalization.
She also stated in an additional declaration that:
As provided in the treatment records and as I testified at
my deposition, multiple attempts have been made to treat
[Amy] with the PTSD specific intervention of trauma-focused
cognitive behavior therapies. These attempts have not been
successful because [Amy] lacks the intellectual capacity to
retain and maintain the necessary coping strategies that
must be in place to engage in and receive the benefit of
this therapy.
In a third declaration, she wrote:
I opined that there is no set amount of time when it may be
safe to put [Amy] through a deposition since chronic PTSD
can be a lifelong condition and because of [her]
intellectual disability she is unable to benefit from
treatment. When we discussed the harms outweighing the
benefits, I identified the harms of a deposition as the
risk of re-hospitalization and the likelihood of her
becoming acutely unstable again. I identified the benefits
as her testimony and since that may not be reliable or
accurate because of her intellectual disability, then the
benefits do not outweigh the harms.
Dr. Urquiza also reviewed the video recording of Amy’s
deposition and observed symptoms consistent with her PTSD
diagnosis, including anxiety, hypervigilance, and avoidance.
Dr. Urquiza warned that requiring Amy to confront the
circumstances of her trauma through further deposition
questioning would likely retraumatize her. Dr. Urquiza wrote:
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
I understand that in the next session of [Amy]’s
deposition, she will be confronted with facts surrounding
her trauma and prior-victimization. It is medically
contraindicated to confront [Amy] with such questions in a
deposition setting because forcing [Amy] to do so will
likely result in re-traumatizing her resulting in more
severe symptoms than she exhibited during and after the
first session of her deposition. As I indicated in my
report dated July 17, 2015, it was reasonably expected
[Amy] might persist in a deposition even though distressed
and have a delayed negative response to the deposition. The
reports of Dr. Angela King subsequent to the first session
of [Amy]’s deposition, demonstrating that presented with
evidence of anxiety and paranoia is consistent with my
expressed concerns.
The first deposition also illustrated concerns regarding
the reliability of Amy’s testimony. During the session, Amy
gave inaccurate responses regarding basic aspects of her
personal history, including testifying (1) that she rode a
Roberts Hawaiʻi school bus during her freshman year, even though
that did not happen until she began attending Variety School,
and (2) that she owned a “German Shepherd,” despite not having
one. Plaintiffs argued that these examples demonstrated Amy’s
confusion regarding time periods and susceptibility to leading
questions, concerns that were echoed by multiple medical
professionals. For example, Dr. Urquiza wrote:
I observed in the video that [Amy] exhibited symptoms
consistent with her PTSD diagnosis, including anxiety,
hyper-vigilance, reassurance from adults and avoidance. I
observed that the questioning of [Amy] was not designed to
ensure that she understood the questions that she was
answering and, in fact, demonstrated how suggestible she
was based on the leading manner in which she was asked
questions. An example of such testimony was with respect to
whether she understood the difference between fiction and
non-fiction. All of this evidences the fact that she is not
competent to testify at a deposition or trial.
19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Based on these concerns, Plaintiffs again moved to
terminate Amy’s deposition. After considering the discovery
master’s report and medical evidence, the circuit court found
Amy competent to testify and ordered that her remaining
deposition sessions proceed under the existing protective order
conditions.
On September 29, 2016, Amy participated in a second ninety-
minute deposition. During that session, questioning focused
extensively on the sexual abuse Amy experienced while a student
at McKinley.
After the second deposition, Amy’s condition deteriorated
significantly. Dr. King reported that Amy exhibited increased
fear, anxiety, depression, nervousness, tearfulness, and
sleeplessness. Dr. King wrote:
During the September 29, 2016 deposition session, [Amy] was
asked numerous questions regarding her sexual assaults
including her rape by [a student]. [Amy] exhibited symptoms
of distress. This became particularly evident to me during
a break at the 1-hour mark of the deposition when I had an
opportunity to personally observe [Amy] in an adjoining
conference room. At that time, [Amy] was crying and
anxious[.]
After the session held on September 29, 2016, I saw [Amy]
in my office on an emergent basis the following day. [Amy]
presented with heightened anxiety, fear, inability to
sleep, and tearfulness.
. . . .
I saw [Amy] again in my office on October 5, 2016. I
observed that [Amy]’s condition had worsened . . . While
alone in my office, she cried, appeared fearful and
reported being scared. She is afraid of being alone and has
been experiencing more anxiety attacks. She has been fairly
stable up to this point during our sessions, but I have
definitely seen an increase in symptoms, including
20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
depression, fear, and anxiety since she went through the
most recent deposition. She is being asked questions that
are traumatic in nature and ordinarily in therapy, these
questions would not be asked when the patient is not able
to apply relaxation skills. They are also not asked when
the patient is unable to safely process past trauma as
[Amy]'s current symptoms demonstrate. Forcibly asking these
questions can lead to further trauma, increasing symptoms,
and possible re-hospitalization. It is my firm opinion that
[Amy]’s increased symptomology is a result of her
experience at her depositions recounting the trauma that
she experienced at school.
It continues to be my clinical opinion that the deposition
of [Amy] [is] harmful and should be terminated. This
opinion is reinforced by my witnessing [Amy] exhibiting
distress and harm during the deposition sessions and the
increased symptoms and instability she is exhibiting in
their aftermath.
Dr. King increased Amy’s psychiatric medication to address
her worsening symptoms and to minimize the risk of another
psychotic episode. When Dr. King examined Amy again on October
5, 2016, she remained fearful, cried throughout the visit, and
appeared to be in worse condition, despite the increased
medication.
Dr. Urquiza also submitted a supplemental declaration
noting that “there is significant concern about [Amy]’s current
level of distress, and risk of additional harm.” He stated:
It should be clear that [Amy] has been harmed by her
involvement in her second deposition session and continued
involvement in the third portion of her deposition will
likely result in additional harm.
Dr. Barry Carlton, one of Amy’s treating psychiatrists,
likewise stated:
[C]onsidering the severity of the symptoms which the
patient presented, as well as the severity of her cognitive
impairment, and the incomplete nature of her treatment, if
she were to attempt to re-create what happened in an
unprotected, deposition environment, it would pose a risk
21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of exacerbation of symptoms, return of anxiety, and an
increase in anxiety from which it might prove to be
difficult for the patient to recover.
Her treating therapist, Perez, also reported that Amy’s
presentation and “intense fear” were “very similar” to what she
had observed immediately before Amy’s psychotic break in 2011.
Despite these reports, the discovery master recommended
denying Plaintiffs’ motion to terminate Amy’s deposition and
permitting the deposition to continue under the imposed
protections. Plaintiffs appealed this discovery master order to
the circuit court. After hearings, the circuit court denied
Plaintiffs’ appeal and ordered “the third deposition session of
[Amy]” to proceed.
The State agreed, however, that Amy’s deposition should be
postponed. On March 6, 2017, the State moved to continue the
trial, acknowledging that Amy should not undergo a further
deposition while her condition remained unstable. The State
indicated that “[a] fair trial requires that the Defendants
finish [Amy]’s deposition only when [Amy] is emotionally well”
and requested that trial be reset once [Amy] was “stable enough
to present reliable testimony.” The State later clarified that
it would consider Amy “stable” only when her medication had been
reduced and her symptoms had returned to the level they were at
before the September 29, 2016 deposition.
22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The State’s retained expert, Dr. Tanya D’Avanzo (“Dr.
D’Avanzo”), similarly recommended suspending Amy’s scheduled
HRCP Rule 35 examination after learning of her condition after
the deposition. The State reported as follows to the circuit
court:
Appraised of [Amy]’s condition as reported recently by Mr.
Ferrer, Dr. D’Avanzo recommended and the State by
this communication suspends the [examination] of [Amy]
scheduled for February 17, 2017. In Dr. D'Avanzo’s opinion,
the medication taken by [Amy], now at twice the dosage as
when [Amy] was observed in September of 2016, can have a
sedating effect on any patient and which effect could
impair [Amy]’s clarity during the interview portion of Dr.
D’Avanzo’s assessment. Because the State also noticed the
deposition of [Mother] for February 22, 2017 to follow the
last examination session with