Matsumoto v. Asamura

706 P.2d 1311, 5 Haw. App. 628, 1985 Haw. App. LEXIS 79
CourtHawaii Intermediate Court of Appeals
DecidedAugust 15, 1985
DocketNO. 9991; CIVIL NO. 60996
StatusPublished
Cited by4 cases

This text of 706 P.2d 1311 (Matsumoto v. Asamura) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matsumoto v. Asamura, 706 P.2d 1311, 5 Haw. App. 628, 1985 Haw. App. LEXIS 79 (hawapp 1985).

Opinion

OPINION OF THE COURT BY

TANAKA, J.

Plaintiff Kathleen Y. Matsumoto (Matsumoto), now known as Kathleen Yap Hise, appeals the denial of her motion for new trial on the grounds of newly discovered evidence. The dispositive issue is whether the trial court abused its discretion in denying Ma-tsumoto’s motion. We answer no and affirm.

[629]*629On March 16, 1979, an automobile driven by William Asamura (Asamura) and in which Matsumoto was a passenger was involved in an accident with a car driven by Frank Bayot (Bayot), a minor. Alleging personal injuries resulting from the accident, Matsumoto sued Asamura on March 28, 1980. Asamura, in turn, filed a third party complaint against Bayot and his parents, Eugene and So-ledad Bayot (the three are collectively referred to as the Bayots).

A jury trial of the case was held from February 28 through March 4, 1983. In its verdict upon special interrogatories, the jury found that (1) Asamura was 20% negligent and Bayot, 80%; and (2) Matsumoto was entitled to recover $2,250 for past medical expenses, $1,220 for past wage loss, and $5,030 for “general damages, including future medical expenses and future wage loss,” or a total of $8,500. On June 3, 1983, a judgment was entered accordingly.1

On March 16, 1984, Matsumoto filed a motion for new trial based on newly discovered evidence.2 She claimed that on August 27, 1983, Thomas H. Sakoda, M.D. had performed a diskogram operation which revealed that “the disks in her neck area are abnormal and are currently degenerating.” Record, Vol. 3, at 21. She further claimed that based on the newly discovered evidence the jury verdict and the judgment “appear to be grossly inadequate.” Record, Vol. 3, at 16.

On April 30, 1984, the trial court denied the motion,3 and Matsumoto appealed.

[630]*630I.

Whether a motion for new trial based on newly discovered evidence is made under Rule 59 or Rule 60(b)(2), Hawaii Rules of Civil Procedure (HRCP) (1981), the applicable standard of appellate review of the order granting or denying the motion is the abuse of discretion test.

The trial court’s grant or denial of a Rule 59, HRCP, motion for new trial on any grounds “will not be reversed absent a clear abuse of discretion.” Harkins v. Ikeda, 57 Haw. 378, 380, 557 P.2d 788, 790 (1976). See also Stahl v. Balsara, 60 Haw. 144, 587 P.2d 1210 (1978); Deponte v. Ulupalakua Ranch, Ltd., 49 Haw. 672, 427 P.2d 94 (1967) (claim of newly discovered evidence involved); Lovell Enterprises, Inc. v. Campbell-Burns Wood Products, Inc., 3 Haw. App. 531, 654 P.2d 1361 (1982); City & County v. Ambler, 1 Haw. App. 589, 623 P.2d 92 (1981). Likewise, a Rule 60(b), HRCP, motion for relief from a judgment is addressed to the discretion of the court and appellate review is based on the abuse of discretion standard. See 11 Wright & Miller, Federal Practice and Procedure, Civil § 2857 (1973); Hayashi v. Hayashi, 4 Haw. App. 286, 666 P.2d 171 (1983); Paxton v. State, 2 Haw. App. 46, 625 P.2d 1052 (1981).

Matsumoto contends that the trial court abused its discretion in denying her motion for new trial. We disagree for the reasons stated below.

II.

Orso v. City & County, 56 Haw. 241, 534 P.2d 489 (1975), states the general rule as follows:

[A] new trial based on newly discovered evidence can be granted provided the evidence meets the following requirements: (1) it must be previously undiscovered even though due diligence was exercised; (2) it must be admissible and credible; (3) it must be of such a material and controlling nature as will probably change the outcome and not merely cumulative or tending only to impeach or contradict a witness.

Id. at 250, 534 P.2d at 494.

[631]*631Moreover, in Deponte v. Ulupalakua Ranch, Ltd., supra, the supreme court cautioned:

“ * * There are but few cases tried in which new evidence cannot be hunted after trial, and in order to secure to parties the termination of their legal controversies the Court must be wary about granting new trials upon insufficient excuses for not procuring the evidence when the parties had their day in Court.’ ”

Id. at 673, 427 P.2d at 95 (quoting from Territory v. Young, 32 Haw. 628, 640 (1933), which, in turn, quoted from Burns v. Bowler, 4 Haw. 303, 304(1880)).

The foregoing standards apply whether the motion based on newly discovered evidence is made pursuant to Rule 59 or Rule 60(b)(2), HRCP. See 11 Wright & Miller, Federal Practice and Procedure, Civil § 2859 (1973).

The Orso test requires the exercise of due diligence in discovering the “new evidence.” Appellees (Asamura and the Bayots) argue that if Matsumoto had exercised due diligence she would have been able to discover the new evidence prior to trial. The trial court apparently agreed4 and we find no error in that regard.

A.

Matsumoto contends that “[d]ue diligence does not require that [she] undergo all possible operations prior to the time of trial[.]” Record, Vol. 3, at 15. The record5 indicates, however, that an abnormal or degenerative cervical disk condition was very likely and due diligence required her submission to a diskogram operation or some equivalent type of diagnostic procedure prior to trial.

On March 19, 1979, three days after the accident, Matsumoto [632]*632consulted Robert Thune, M.D., about pain in her neck, lumbosa-cral area, left arm, and left leg.

On March 21, 1979, she saw Masao Takai, M.D., an orthopedic surgeon, who diagnosed her condition as cervical and back strain, placed her in a cervical collar, and prescribed medication for her pain. She remained under Dr. Takai’s care continually up to the time of the jury trial. The medical records (Exhibit 24) indicate that she saw Dr. Takai approximately 22 times in 1979, four times in 1980,6 15 times in 1981, and 14 times in 1982. Her main complaints during the period were basically pain in her neck and headaches.

In April 1979, Dr. Takai referred her to Raymond M. Taniguchi, M.D., a neurological surgeon, whose impression was that there was “no evidence of any residual nerve damage or injuryf.]” Exhibit 24, Dr. Taniguchi’s April 14, 1979 medical report.

Because of her persistent headaches, in July 1981, Dr. Takai referred her to Michael M. Okihiro, M.D., a neurologist, who found “no evidence of any significant neurological impairment.” Exhibit 24, Dr.

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706 P.2d 1311, 5 Haw. App. 628, 1985 Haw. App. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matsumoto-v-asamura-hawapp-1985.