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