Ricapor-Hall v. Philip Morris USA Inc

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 06-AUG-2026 09:24 AM Dkt. 46 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

RAMONA RICAPOR-HALL, Plaintiff-Appellee/Cross-Appellant,

vs.

PHILIP MORRIS USA INC., Defendant-Appellant/Cross-Appellee,

and

R.J. REYNOLDS TOBACCO COMPANY; LIGGETT GROUP LLC; FOODLAND SUPER MARKET, LIMITED, Defendants-Appellees/Cross-Appellees.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-XX-XXXXXXX; CASE NO. 1CCV-XX-XXXXXXX)

AUGUST 6, 2026

DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT JUDGE KIMURA, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY EDDINS, J.

I.

Ramona Ricapor-Hall smoked for sixty-six years. *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

A jury found that Philip Morris helped keep her smoking

through decades of fraud about the dangers of cigarettes. Those

cigarettes, it concluded, caused her lung cancer. The jury

awarded Ricapor-Hall $6 million in general damages and $8

million in punitive damages.

The circuit court cut the general damages nearly in half.

Because the jury found Ricapor-Hall partly at fault for her

injuries, the court reduced her recovery by her share of

negligence. Even on her claim that Philip Morris conspired to

defraud.

That was error. We hold that a plaintiff’s negligence does

not reduce damages for an intentional tort. Ricapor-Hall’s

cross-appeal on that issue succeeds.

Philip Morris challenges the verdict on four grounds: the

recall of discharged alternate jurors, the court’s inquiry into

Juror 30’s alleged bias, two refused jury instructions, and the

availability of punitive damages.

Each fails.

Hawaiʻi Rules of Civil Procedure (HRCP) Rule 47(b) did not

bar the circuit court from recalling alternates it had earlier

discharged.

No further investigation of Juror 30 was required. Philip

Morris never made the showing that would have compelled it. The

court adequately investigated anyway.

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The two proposed jury instructions were properly denied.

Philip Morris’ preexisting injury instruction was unnecessary

once the court limited damages to Ricapor-Hall’s lung cancer.

And cigarettes are not an unavoidably unsafe product.

Also nothing bars punitive damages. Ricapor-Hall’s claim

was not covered by the tobacco industry’s past settlement with

the states. Nor precluded by any earlier lawsuit.

Longstanding precedent and sound policy foreclose using

comparative negligence to shrink recovery against an intentional

wrongdoer. We therefore vacate the portion of the final

judgment reducing Ricapor-Hall’s damages and remand for entry of

an amended judgment for the full amount. In all other respects,

we affirm.

II.

A. The Master Settlement Agreement

In 1997, the State of Hawaiʻi sued Philip Morris and other

major cigarette manufacturers. The State sued through its

attorney general, in a sovereign capacity. The complaint

invoked the State’s “parens patriae responsibility to protect

the health and safety of its citizens.”

The suit sought three things. Recovery of public funds the

State spent treating Hawaiʻi residents with smoking-related

disease. Disclosure of the industry’s internal records. And

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punitive damages. It did not seek relief for injuries suffered

by individual smokers.

In 1998, the State’s suit settled, along with parallel

suits brought by the attorneys general of most other states.

The settlement is known as the Master Settlement Agreement

(MSA). Among other things, the MSA restricted cigarette

marketing, required the industry to make formerly confidential

records public, and set up a system of annual payments to the

states based on each manufacturer’s market share.

One MSA provision matters to this appeal. The MSA defined

“Releasing Parties” to identify whose claims the settlement

released. That definition reaches persons acting in a “parens

patriae, sovereign, quasi-sovereign, private attorney general,

qui tam, taxpayer, or any other capacity,” but only “to the

extent” they seek “relief on behalf of or generally applicable

to the general public,” “as opposed solely to private or

individual relief for separate and distinct injuries.” Private

claims for individual injuries were not released.

B. Ramona Ricapor-Hall

Ramona Ricapor-Hall started smoking in 1953. She was

twelve years old. Cigarette packages would carry no warning

labels for another thirteen years.

By 1953, the scientific evidence linking cigarettes to lung

cancer was emerging into public view. The major cigarette

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manufacturers responded not by warning the public, but by

reassuring it that the science was unsettled. They conspired to

deceive the public about the safety of smoking. Publicly, they

peddled doubt. Privately, their own records acknowledged the

deadly hazards.

Ricapor-Hall kept smoking for sixty-six years. She relied

on the manufacturers’ assurances when she decided to keep

smoking. She tried many times to quit. Her nicotine addiction

defeated those efforts. She relapsed again and again.

In 2019, doctors diagnosed Ricapor-Hall with lung cancer.

A second primary lung cancer followed. In 2021, she sued Philip

Morris and other manufacturers and vendors for her lung cancer.

C. The Trial

Before trial, Ricapor-Hall settled with every defendant

except Philip Morris. Her remaining claims against Philip

Morris went to a bifurcated jury trial: negligence, strict

products liability, and two conspiracy claims, conspiracy to

commit fraudulent concealment and conspiracy to commit

fraudulent misrepresentation. Phase one addressed liability,

compensatory damages, and whether punitive damages could be

awarded. Phase two would fix the amount of any punitive

damages.

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1. The Comparative Negligence Ruling

Midway through trial, the circuit court asked the parties

to brief a remedy question. How would damages be calculated if

the jury found Ricapor-Hall comparatively negligent and also

found Philip Morris liable for conspiracy, an intentional tort?

The parties agreed on two points. For Ricapor-Hall’s

negligence claim, Hawaiʻi Revised Statutes (HRS) § 663-31’s

(2016) modified comparative negligence framework would govern.

For her strict products liability claim, pure comparative

negligence would apply. See Hao v. Owens-Illinois, Inc., 69

Haw. 231, 738 P.2d 416 (1987).

The parties split on the conspiracy claims. Ricapor-Hall

maintained that comparative negligence cannot reduce damages for

an intentional tort, because “it is impossible to compare the

fault of a plaintiff with the intentional conduct of a

defendant.” Philip Morris argued the opposite, asserting that

“Hawaiʻi law allows for application of pure comparative fault

principles to intentional tort claims.”

The circuit court adopted Philip Morris’ position. It

instructed the jury that if it found for Ricapor-Hall on her

“strict products liability or conspiracy claims,” the court

would “reduce the amount of damages” by Ricapor-Hall’s

percentage of negligence, “regardless of any percentage of

responsibility” assigned to her. Ricapor-Hall objected.

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2. The Disputed Jury Instructions

Four other jury instruction rulings matter to the issues on

appeal.

The court declined to give an instruction on apportioning

damages among preexisting injuries. Both parties had proposed

versions. The court declined them because no expert had offered

an apportionment opinion, and “[a] jury cannot rely upon pure

conjecture and speculation on a question of medical

apportionment.”

The court did instruct, at Philip Morris’ request, that

Ricapor-Hall’s claims were limited to her lung cancer. The jury

was told that although it had heard evidence of Ricapor-Hall’s

“other diseases or conditions, including [COPD], peripheral

vascular diseases, and heart disease,” she was “only asserting

claims” for “her own lung cancer and the related treatment,” and

there was “no claim” that Philip Morris caused “any other

disease.” The jury was further told it could award “only”

damages “legally caused by” Philip Morris’ cigarettes,

negligence, or fraud, and not “speculative damages.”

The court declined Philip Morris’ proposed instruction on

unavoidably unsafe products. That instruction, drawn from

comment k of the Restatement (Second) of Torts § 402A (1965),

would have told the jury that “[u]nless the product unreasonably

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exposes users to risk of injury, there is no liability for

supplying an unavoidably unsafe product.”

The court gave the parties’ agreed instruction on the scope

of punitive damages. The jury was told it could “not seek to

punish [Philip Morris] for any conduct except that conduct of

[Philip Morris] that [Ricapor-Hall] has shown to have caused her

injuries,” and that it could “not impose punitive damages on

[Philip Morris] in order to punish it for[] harms suffered by

other people.”

3. The Alternate Jurors

The jury retired to deliberate on phase one on August 11,

2023. Three alternate jurors remained.

The circuit court did not permanently release the

alternates. It told them their “service may not be done,” that

it was “done for today,” and that the court would contact them

“if we need your service in the future.” It directed the

alternates to keep following the instruction not to discuss the

case, told them they remained “under the court’s supervision for

jury service,” and promised day-to-day updates on their status.

Philip Morris objected. It argued that HRCP Rule 47(b)

required the court to permanently discharge the alternates once

deliberations began, and that the alternates would therefore be

unavailable if a juror were later lost. The court overruled the

objection. Because the trial was bifurcated and phase two would

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proceed before the same jury, the court reasoned, the alternates

would “remain subject to call.” Replacing them with new

alternates for phase two, the court explained, “would be

disruptive and prejudicial to the parties.”

4. Juror 30

On the morning of August 17, 2023, the fourth full day of

phase one deliberations, Juror 30 told the court, through the

bailiff, that she “may feel” she “cannot be a fair and impartial

juror.” The court suspended deliberations and recessed the

jury.

Philip Morris moved for a mistrial. It argued that the

jury was now short a member, that HRCP Rule 47(b) barred

substituting an alternate, and that the court’s questioning of

Juror 30 had to be confined to confirming what she told the

bailiff. Any further inquiry, Philip Morris said, would

“trespass into the area of the thought processes of a sitting

juror.” The court denied the motion without prejudice, finding

it had too little information to rule.

The court brought Juror 30 into the courtroom alone. She

explained that she had encountered “some of the details” of the

MSA while researching disaster-relief funds, and that the

information had “colored” her view of “this whole case.”

What Juror 30 said about the other jurors was equivocal.

She said she “tried not to tell them anything about it,” but

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that they “kind of got wind of the MSA” when she explained her

vote. She also said she “held that information back,” that the

others “don’t know,” and that she did not know whether anything

“slipped out” during her explanation. Asked directly whether

she recalled saying anything about the MSA during deliberations,

she answered, “No.”

The court offered both sides the chance to question Juror

30. Neither did. With the agreement of counsel, the court

excused her.

5. The Investigation and the Substitutions

With Juror 30 excused, Ricapor-Hall asked the court to

proceed with eleven jurors. Philip Morris again moved for a

mistrial, arguing the jury was tainted and that HRCP Rule 47(b)

forbade substituting an alternate.

The court decided to question each remaining juror,

individually, about whether Juror 30 had exposed them to outside

information. It recessed and asked both parties to propose

questions. Ricapor-Hall proposed a sequence: first ask whether

the juror received outside information, and only if so, ask how

it influenced them. Philip Morris proposed nothing. It said

juror questioning was “a fruitless act” and that it had not had

the chance to brief the issue.

The court made three rulings. It denied the renewed

mistrial motion. It ruled that substituting an alternate was

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proper, because in a bifurcated trial “all deliberations have

not yet begun” until phase two deliberations begin. And it

decided to call each juror in alone and ask a single question.

The court worked through several drafts of that question

with counsel. As it did, Philip Morris objected that the

question would not capture “what information [the jury]

received.” The court again asked Philip Morris what question it

would pose. Philip Morris again declined to say. The court

explained its concern: pressing jurors for the specifics of the

extraneous information could “attract[] more attention than

less” and invite the very mistrial Philip Morris sought.

The court then questioned the eleven remaining jurors one

at a time. Each was questioned “in the presence of” that person

alone “and the absence of all other jurors.” The court asked

the same questions of each: whether, if the juror “heard any

comments or statements made by [Juror 30] during the jury’s

deliberations about information that was not evidence in this

case,” the juror could “still be a fair and impartial juror in

this case.”

One juror first answered “No.” But it was unclear which

question he was answering. Had he heard nothing? Or could he

no longer be impartial?

The court did not let the uncertainty stand. It brought

the juror back and asked him directly whether he had heard Juror

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30 “say anything about something that was not evidence in the

case.” He answered: “No, Your Honor. I never heard anything

from them.” Asked then whether he could be fair and impartial,

he said he could. Every one of the eleven jurors confirmed that

they could remain fair and impartial. Philip Morris asked no

follow-up questions.

The court seated the first alternate in Juror 30’s place.

It instructed the reconstituted jury to “begin your

deliberations all over,” to “express your positions and then

revote on everything,” and to proceed “as if we were just

starting now.”

A second substitution followed. On August 22, 2023, the

court excused Juror 33 to accommodate travel plans the juror had

disclosed during jury selection, reasoning that keeping the

juror would delay deliberations by three days. Philip Morris

renewed its mistrial motion. The court denied it.

The court seated the second alternate. It instructed the

jury to “begin jury deliberations all over again,” to consider

the evidence and law “as if previous deliberations have not

occurred,” to select a new foreperson, and to vote anew on a new

verdict form. The court asked any juror who could not follow

those instructions to raise a hand. None did.

The reconstituted jury then deliberated for over eight

hours before reaching its phase one verdict. At no point did

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the jury report a deadlock.

6. The Verdicts and the Judgment

The phase one verdict went against Philip Morris on every

claim. The jury found for Ricapor-Hall on strict products

liability, negligence, and both conspiracy counts. It found

Philip Morris’ cigarettes defectively designed and its conduct

negligent. And it concluded that Philip Morris conspired to

conceal and misrepresent cigarettes’ harms — a deception

Ricapor-Hall reasonably believed.

The jury awarded Ricapor-Hall $6 million in general

damages. It assigned fault to both sides. Fifty-four percent

to Philip Morris. Forty-six percent to Ricapor-Hall. And it

found that Philip Morris’ conduct was intentional, willful,

wanton, oppressive, or grossly negligent, exposing Philip Morris

to punitive damages.

Phase two turned to the amount. Both parties reminded the

jury that punitive damages could only punish Philip Morris for

the harm it caused Ricapor-Hall, not for harm to anyone else.

The jury awarded $8 million in punitive damages.

On October 10, 2023, the circuit court entered final

judgment. Applying its comparative negligence ruling, the court

reduced Ricapor-Hall’s $6,000,000 in general damages by her

forty-six percent share of fault, to $3,240,000, citing HRS

§ 663-31, Hao, and Ozaki v. Assʼn of Apartment Owners of

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Discovery Bay, 87 Hawaiʻi 265, 954 P.2d 644 (1998). After

crediting Philip Morris for prior settlement with the co-

defendants, the final judgment totaled $11,095,000.

D. The Appeals

Philip Morris appealed. It raised four claims of error.

First, that HRCP Rule 47(b) barred recalling discharged

alternates and substituting them mid-deliberation. Second, that

the court failed to adequately investigate whether Juror 30

exposed the jury to outside information. Third, that the court

should have instructed the jury on apportioning preexisting

injuries and on unavoidably unsafe products. And fourth, that

the MSA precluded any award of punitive damages.

Ricapor-Hall cross-appealed. She argued that the circuit

court was wrong to reduce her damages on the conspiracy claims,

because a plaintiff’s negligence does not reduce damages for an

intentional tort.

We accepted transfer of the case from the Intermediate

Court of Appeals.

III.

A. The Circuit Court’s Juror Substitutions Do Not Warrant a New Trial

Philip Morris raises two challenges to the jury that

decided phase one. It says the circuit court violated HRCP Rule

47(b) by recalling discharged alternates and substituting them

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in during deliberations. And it says the court failed to

adequately investigate whether Juror 30 exposed the jury to

outside information.

Neither challenge warrants a new trial.

1. HRCP Rule 47(b) Does Not Bar Recalling Discharged Alternates

HRCP Rule 47(b) provides that “[a]n alternate juror who

does not replace a regular juror shall be discharged after the

jury retires to consider its verdict.” Philip Morris reads this

to mean that alternate jurors “must be discharged after

deliberations begin, and may not replace a regular juror after

that time.”

The rule does not say that.

HRCP Rule 47(b) makes discharge mandatory. See Malahoff v.

Saito, 111 Hawaiʻi 168, 191, 140 P.3d 401, 424 (2006) (“shall” is

“construed as mandatory”). But the rule does not define

“discharge.” And nothing in its text compels the conclusion

that discharge must be permanent.

We construe the Hawaiʻi Rules of Civil Procedure under the

same principles that govern statutory interpretation. Gap v.

Puna Geothermal Venture, 106 Hawaiʻi 325, 331, 104 P.3d 912, 918

(2004). We give the rule’s words their ordinary meaning, and

when a term is undefined, we may consult dictionaries to

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determine that meaning. Rodriguez v. Mauna Kea Resort LLC, 156

Hawaiʻi 289, 293, 574 P.3d 309, 313 (2025).

Black’s Law Dictionary defines “discharge of juror” as

“[t]he relieving of a . . . juror, . . . from further

responsibilities in a case.” Discharge, Black’s Law Dictionary

581 (12th ed. 2024). The New Oxford American Dictionary defines

“discharge” as to “tell (someone) officially that they can or

must leave.” Discharge, New Oxford American Dictionary 485

(2001).

Neither definition compels permanence. Black’s speaks of

relief from responsibilities in a case. But here the alternates

were told the case was not over for them, that their “service

may not be done,” and that they remained “under the court’s

supervision for jury service.” New Oxford is broader still.

Telling a juror they “can” leave is not telling them they must

never return. Nothing in either forecloses recall.

In the context of alternate jurors, “discharge” means

temporarily relieving alternates of their responsibilities for

the time being. Alternates serve provisionally by design.

Throughout trial, alternates sit next to the regular jurors

as the evidence comes in. See HRCP Rule 47(b). When the twelve

jurors retire to deliberate, the alternates do not go with them.

Their responsibilities pause. The court “discharges” them. It

tells them they may leave.

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But “discharge” does not mean “permanently sever.” A

discharged alternate may be called back. HRCP Rule 47(b)

doesn’t forbid it.

Other courts have read identical language the same way.

Before Federal Rule of Criminal Procedure 24(c) was amended in

1999 to expressly authorize mid-deliberation substitutions, the

Fourth Circuit construed the unamended rule to permit them. The

rule then provided, as HRCP Rule 47(b) provides now, that an

alternate “shall be discharged after the jury retires to

consider its verdict.” United States v. Evans, 635 F.2d 1124,

1127 (4th Cir. 1980). The rule, the court explained, “does not

purport[] . . . to deny power to the trial court to reconstitute

someone as a juror who previously has been discharged.” Id.;

see also Cork v. State, 433 So.2d 959, 963 (Ala. Crim. App.

1983) (same).

Our rule tracks the federal rule Evans construed, word for

word. It carries the same meaning. HRCP Rule 47(b) does not

strip a trial court of the power to recall a discharged

alternate.

The defendant in Evans favored the substitution. Philip

Morris didn’t. No matter. The Fourth Circuit’s construction

turned on the rule’s text, not the parties’ consent. The power

to recall a discharged alternate belongs to the court, and it

does not appear and disappear with the litigants’ preferences.

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Reading HRCP Rule 47(b) Philip Morris’ way would frustrate

the purpose the rules serve. The HRCP “shall be construed and

administered to secure the just, speedy, and inexpensive

determination of every action.” HRCP Rule 1(a). A rule that

forced a court to toss a month of trial whenever a juror became

unavailable during deliberations, even with vetted alternates

standing ready, would serve none of those ends. It would defeat

all three.

The concern is not abstract. This trial lasted over a

month. It consumed substantial judicial resources. And

Ricapor-Hall is eighty-five years old, in declining health. A

construction of HRCP Rule 47(b) that required this case to be

tried twice is not one the text commands, and not one HRCP Rule

1(a) tolerates.

The Hawaiʻi Rules of Civil Procedure are liberally construed

to promote justice. Struzik v. City & Cnty. of Honolulu, 50

Haw. 241, 246, 437 P.2d 880, 884 (1968).

The circuit court here proceeded with care. When the jury

retired on phase one, the court excused the alternates only “for

today,” held them to the instruction not to discuss the case,

and told them they might be recalled. When a juror was later

lost, the court recalled an alternate and had the jury start its

deliberations over. That’s what careful use of HRCP Rule 47(b)

looks like.

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The circuit court did not violate HRCP Rule 47(b).

The parties also dispute when, in a bifurcated trial, the

jury “retires to consider its verdict.” Because our reading of

“discharge” permits recall regardless, we do not decide it.

2. Any Violation of HRCP Rule 47(b) Was Harmless

Even if the substitutions skirted HRCP Rule 47(b), the

violation would not warrant a new trial. Any error was

harmless.

Faulty trial rulings are subject to harmless error review.

See HRCP Rule 61; Bank of Hawaii v. Shinn, 120 Hawaiʻi 1, 12, 200

P.3d 370, 381 (2008). HRCP Rule 61 is written broadly and

admits no exception. “[N]o error or defect in any ruling or

order or in anything done or omitted by the court” is ground for

a new trial “unless refusal to take such action appears to the

court inconsistent with substantial justice.” HRCP Rule 61.

Philip Morris’ contention that juror-substitution errors

escape this rule rests on out-of-state authority. But our own

rule and our own precedent control. HRCP Rule 61 allows no

exception, and we applied harmless error analysis to the

analogous criminal rule in State v. Wideman, 69 Haw. 268, 269,

739 P.2d 931, 932 (1987). The cases Philip Morris gathers from

other jurisdictions give us no reason to read an exception into

a rule that contains none.

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Philip Morris itself acknowledges that “replacing a

deliberating juror with an alternate is not per se harmful.”

Philip Morris points to one risk in particular. A juror

substituted after deliberations have begun “is subject to

potential undue pressure from the original jury members to reach

a conclusion they may have agreed upon during their prior

deliberations.” Wideman, 69 Haw. at 269, 739 P.2d at 932.

That risk, though, is one a trial court can manage through

its instructions. The circuit court did. After each

substitution, it instructed the jury to begin deliberations

anew. The instructions were specific. Select a new foreperson.

Use a new verdict form. Weigh the evidence and the law “as if

previous deliberations had not occurred.” Re-state positions

and revote on every question.

The court invited any juror who could not follow those

directions to speak up. None did. The start-over instruction’s

absence troubled the court in Wideman. See 69 Haw. at 269, 739

P.2d at 932 (faulting “the lack of an instruction to the new

jury to begin its deliberations anew”). Here it was given. And

given in detail.

Juries are “presumed to be reasonable and follow all of the

trial court’s instructions.” Myers v. South Seas Corp., 76

Hawaiʻi 161, 165, 871 P.2d 1231, 1235 (1994).

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Philip Morris invokes the dissent from this court’s denial

of certiorari in State v. Baldado, No. SCWC-29623, 2011 WL

6144302 (Haw. Dec. 1, 2011). A dissent from a cert denial

decides nothing and binds no one. Even on its own terms, it

does not help Philip Morris. The dissent reasoned that the

presumption was “reasonably called into question” where a jury

deliberated for days, reported that it was deadlocked, and then

returned a verdict less than six hours after an alternate was

seated. Id. at *2 (Acoba, J., dissenting).

This case bears no resemblance to that one. This jury

never deadlocked. And the reconstituted jury deliberated over

eight hours before reaching its verdict, longer than the under-

six-hour verdict that troubled the Baldado dissenters.

Nothing in this record rebuts the presumption that the jury

followed the circuit court’s instructions. Any violation of

HRCP Rule 47(b) was harmless. The substitutions do not warrant

a new trial.

B. The Circuit Court’s Investigation of Juror 30 Does Not Warrant a New Trial

During phase one deliberations, Juror 30 told the court she

had come across outside information about a settlement between

tobacco companies and the states.

The circuit court questioned her, excused her, and then

questioned each remaining juror individually, outside the

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presence of the other jurors. Philip Morris maintains that this

investigation was inadequate.

The argument fails at the threshold. Philip Morris never

made the showing that would have triggered a duty to investigate

at all. And even if it had, the investigation was sufficient

and any misconduct was harmless.

1. Philip Morris Did Not Make a Prima Facie Showing

“[T]rial courts have wide latitude to assess the nature of

alleged juror misconduct and its prejudicial impact on a

defendant’s right to a fair trial.” State v. Grewer, 157 Hawaiʻi

104, 111, 575 P.3d 737, 744 (2025).

When a party claims it was denied a fair trial by an

impartial jury, the trial court first determines “whether the

nature of the alleged deprivation rises to the level of being

substantially prejudicial.” State v. Chin, 135 Hawaiʻi 437, 445,

353 P.3d 979, 987 (2015). “If it does not rise to such a level,

the trial court is under no duty to interrogate the jury.” Id.

The burden rests on the complaining party. It must make “a

prima facie showing of a deprivation that could substantially

prejudice [its] right to a fair trial by an impartial jury.”

Id. at 443, 353 P.3d at 985. That requires “‘some specific,

substantial evidence’ showing the occurrence of the outside

influence that may have possibly biased the juror.” Id. at 443

n.10, 353 P.3d at 985 n.10.

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When the alleged deprivation rests on statements made

during deliberations, the showing is more demanding still. See

State v. Gabalis, 83 Hawaiʻi 40, 47, 924 P.2d 534, 541 (1996);

see also State v. Kim, 103 Hawaiʻi 285, 292, 81 P.3d 1200, 1207

(2003).

Our cases setting out this framework arose in criminal

appeals. Neither party identifies a Hawaiʻi civil decision

applying a different rule, and both litigate this appeal under

the same standard. We hold that the Chin framework applies in

civil cases as well. The right to a fair trial before an

impartial jury is not the criminal law’s alone.

Philip Morris does not carry its burden. It falls short

for two reasons.

First, the record contains no specific, substantial

evidence that an outside influence reached the other jurors.

At the prima facie stage, Philip Morris need not prove

prejudice. But it must show “the occurrence” of an outside

influence that “may have possibly” prejudiced the jury, and it

must do so with “specific, substantial evidence.” Chin, 135

Hawaiʻi at 443 n.10, 353 P.3d at 985 n.10. Evidence that is

“pure conjecture,” or merely “equivocal,” isn’t good enough.

State v. Amorin, 58 Haw. 623, 631, 574 P.2d 895, 900 (1978);

State v. Okumura, 78 Hawaiʻi 383, 396, 894 P.2d 80, 93 (1995).

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Juror 30’s account was equivocal. See supra II.C.4. She

said she “held that information back,” that the others “don’t

know,” and that she “tried not to tell [the jurors] anything

about it.” But she also said the jurors “kind of got wind of

the MSA” when she explained her vote and that she did not know

whether anything “slipped out.” Asked directly whether she

recalled saying anything about the MSA during deliberations, she

answered, “No.”

Equivocation doesn’t meet that standard. Juror 30 herself

did not know whether she had conveyed anything to anyone. To

infer that she did, and that what she conveyed could have biased

the jury, would be conjecture. See State v. Blanding, 69 Haw.

583, 587, 752 P.2d 99, 101 (1988) (rejecting a prejudice claim

where it was “unclear what statements were overheard”).

Philip Morris now says the record is too thin to tell what

happened. But Philip Morris made it that way.

Before the court questioned Juror 30, Philip Morris

insisted that the court could “only . . . confirm what she said

to [the] bailiff” and could go no further. After the court

questioned Juror 30, it offered Philip Morris the chance to

question her. Philip Morris passed.

After the court excused Juror 30, it asked both parties to

propose questions for the remaining jurors. Philip Morris

proposed none. When the court revised its proposed question and

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again asked for input, Philip Morris offered none. And when the

court questioned the remaining jurors one by one, it afforded

Philip Morris the opportunity to question each in turn. Philip

Morris declined every time.

Four opportunities. Four refusals.

Philip Morris’ only explanation was that it did not have

time to review the caselaw. Instead of helping develop a

record, it pressed for a mistrial. But a litigant cannot refuse

to take part in the court’s inquiry, plead lack of time to

prepare, and then assign error to the gaps that refusal left

behind. See Leyson v. Steuermann, 5 Haw. App. 504, 520, 705

P.2d 37, 48 (App. 1985).

Whether Juror 30 herself was influenced does not matter.

The court excused her. What matters is whether a potentially

biasing influence reached the jurors who decided the case. On

that question, the record is silent.

Second, even assuming an outside influence reached the

jury, Philip Morris has not shown that it was used as a

circumstance against it.

Because Philip Morris alleges a deprivation based on

statements made during deliberations, it must show “that

improper juror comments during deliberations have been used as a

circumstance against” it. Gabalis, 83 Hawaiʻi at 47, 924 P.2d at

541. Absent that showing, the alleged deprivation does not

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“rise to the level of being substantially prejudicial.” Id. at

46, 924 P.2d at 540.

Philip Morris makes no such showing. The record does not

reveal what Juror 30 said, how it shaped her own view, how she

voted when she said it, or whether her remarks cut for Philip

Morris or against it. The record is blank on each point.

That uncertainty sinks the claim, because information about

the settlement agreement could favor either side. A juror might

take the agreement as proof of Philip Morris’ wrongdoing. Or a

juror might take it the other way, as a sign that Philip Morris

had already paid billions under the settlement and therefore the

company had been punished enough. That inference would favor

Philip Morris, not Ricapor-Hall.

Rather than show how Juror 30’s remarks were used against

it, Philip Morris simply assumes they were. But see Kim, 103

Hawaiʻi at 292, 81 P.3d at 1207 (requiring the complaining party

to “show how” a juror’s statements were “used as a circumstance

against” them). An assumption is not a prima facie showing. To

presume that unidentified remarks, of unknown content, biased

the jury against Philip Morris would be to rest a new trial on a

hunch.

Philip Morris’ allegations do not raise a rebuttable

presumption of prejudice. See Gabalis, 83 Hawaiʻi at 46, 924

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P.2d at 540. The circuit court therefore had no duty to

investigate at all.

2. The Circuit Court’s Decision to Investigate Does Not Mean Philip Morris Met its Burden

Philip Morris argues that because the circuit court chose

to question the jurors, the court must have found a prima facie

showing.

A trial court may question jurors “as a precautionary

measure,” even without finding substantial prejudice. State v.

Keohokapu, 127 Hawaiʻi 91, 102 n.18, 276 P.3d 660, 671 n.18

(2012). “Absent a ruling from the court on the question of

prejudice, it would seem incorrect . . . to infer that the court

implicitly determined that there was substantial prejudice.”

Id.

The circuit court’s decision to question the remaining

jurors reflects caution, not a finding that Philip Morris had

carried a burden it never tried to carry.

3. Even if Philip Morris Made a Prima Facie Showing, a New Trial Is Not Warranted

Were we to assume a prima facie showing, the result would

not change. The circuit court’s investigation was sufficient,

and any misconduct was harmless.

a. The Investigation Was Adequate

Once a rebuttable presumption of prejudice arises, “the

trial judge is . . . duty bound to further investigate the

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totality of the circumstances surrounding the outside influence

to determine its impact on jury impartiality.” Chin, 135 Hawaiʻi

at 448, 353 P.3d at 990 (cleaned up). That duty includes

“individual examination of potentially tainted jurors, outside

the presence of the other jurors, to determine the influence, if

any, of the extraneous matters.” Id.

The circuit court did exactly that. It examined each

remaining juror one at a time. The record reflects that each

juror was questioned alone, in “the absence of all other

jurors.” The court did not question the jurors as a group. It

questioned them in isolation, the very method Chin prescribes.

And it crafted its question only after extended discussion and

several revisions, with input from Ricapor-Hall and no proposed

question from Philip Morris.

The court asked each juror the same question. The question

covered any statement Juror 30 made “at any time while the jury

was deliberating.” It asked whether a juror who “heard any

comments or statements made by [Juror 30] during the jury’s

deliberations about information that was not evidence in this

case” could “still be a fair and impartial juror in this case.”

All eleven jurors answered that they could remain fair and

impartial.

Philip Morris had no follow-up for them.

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The circuit court was right to phrase its inquiry with

care. Juror 30’s own account had not established what specific

information she encountered, much less whether she shared any of

it. Pressing the remaining jurors for the details of the

settlement agreement risked teaching them the very information

the court was trying to keep out, and risked, as the court put

it, “attract[ing] more attention than less.” The court chose a

question that tested impartiality without contaminating the

jury.

Philip Morris contends the court should have proceeded in

stages, asking first what each juror heard, next what was said,

and only last whether the juror could remain impartial. The

court followed that sequence when a juror’s answer called for

it. See supra II.C.5. When one juror first answered with an

ambiguous “No,” the court brought him back, asked directly

whether he had heard Juror 30 “say anything about something that

was not evidence in the case,” and got a clear answer: “No, Your

Honor. I never heard anything from them.” Only then did the

court turn to impartiality. The court used the steps Philip

Morris says it skipped.

Could the circuit court have asked more of every juror?

Perhaps. But the availability of a more searching approach does

not make the approach taken deficient. The court’s question was

sufficient to “determine” the influence, if any, on the jury’s

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impartiality. Chin, 135 Hawaiʻi at 448, 353 P.3d at 990. Before

a verdict is returned, a trial court may “rely on the jurors[’]”

own assessment of “whether they could remain impartial.” State

v. Gouveia, 139 Hawaiʻi 70, 80, 384 P.3d 846, 856 (2016).

The circuit court acted well within its “wide latitude” to

assess alleged misconduct and its effect on the right to a fair

trial. Grewer, 157 Hawaiʻi at 111, 575 P.3d at 744.

Philip Morris’ authorities do not require more. It relies

on State v. Pokini for the proposition that a court must examine

“objective as well as subjective indicia” of impartiality. 55

Haw. 640, 643, 526 P.2d 94, 100 (1974). But Pokini imposed that

requirement in a specific setting: “[w]here pre-trial publicity

is as extensive and as likely prejudicial as it was here.” Id.

The defendants there made a substantial factual showing of

adverse pre-trial publicity, including extensive coverage of a

prior trial and conviction. Id. at 642, 526 P.2d at 99.

Against that backdrop, “perfunctory and generalized questions”

were not enough. Id. at 643, 526 P.2d at 100.

This case is not Pokini. Any outside influence here, if it

occurred at all, was limited in scope and unknown in content.

It is nothing like the extensive, demonstrably adverse publicity

that drove Pokini.

Philip Morris also relies on Gov’t of the Virgin Islands v.

Dowling, where the Third Circuit faulted a trial court for

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jumping “to the ultimate issue” of impartiality without first

determining what information the jurors had received. 814 F.2d

134, 140 (3d Cir. 1987). But in Dowling the content of the

communication was known. A juror had told the others about the

defendant’s prior bank robbery conviction. Id. at 135-36. The

error there was bypassing facts already in the record. Here,

the content of any communication is not in the record, because

Juror 30 herself did not know what, if anything, she had

conveyed.

The circuit court investigated what could be investigated.

That was enough.

b. Any Misconduct Was Harmless

Even where a rebuttable presumption of prejudice arises,

the verdict stands if “it is clearly shown that the juror’s

conduct could not have affected the verdict.” Lopez v. Sears

Roebuck & Co., 70 Haw. 562, 564, 777 P.2d 715, 717 (1989).

That standard is met here. Whatever Juror 30 might have

communicated about the settlement agreement, the jury already

knew the substance of it.

The jury heard about the attorneys general lawsuits and the

settlement that followed. A trial witness testified that

formerly secret tobacco industry documents “were released

through litigation as a part of certain settlements,”

principally a settlement involving “the attorney generals of the

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states that sued the tobacco industry.” Ricapor-Hall’s counsel

described the same lawsuits and disclosures in opening. That

the settlement existed, and that it compelled the release of

internal documents, was not new information.

The jury also heard about the post-1998 restrictions on

tobacco marketing. Philip Morris itself elicited that

testimony, cross-examining Ricapor-Hall’s expert about the

government’s “post-1998 regulation” of how tobacco companies

operate and establishing that certain advertising was “no longer

allowed” as of 1998.

And the jury was well aware of Philip Morris’ wealth. It

heard that Philip Morris is the nation’s leading cigarette

manufacturer and had spent “billions of dollars” merely to study

the “psychology of women” for marketing purposes. Any inference

about the company’s resources that the settlement agreement

might have suggested was an inference the jury could already

draw.

Philip Morris isolates two facts it says the jury never

learned: the specific dollar figures it paid under the

settlement, and that the marketing restrictions were imposed by

that settlement in particular. But the jury knew Philip Morris

had been sued, knew the suit had settled, knew internal

documents had been disclosed, knew marketing was restricted, and

knew the company operated on an international scale. Attaching

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the label “MSA” to facts already in evidence does not convert

them into something prejudicial. Whatever Juror 30 may have

said could not have told the jury anything that mattered which

it did not already know.

Philip Morris did not make its prima facie showing. Even

if it had, the circuit court’s investigation was sufficient and

any misconduct was harmless. The circumstances surrounding

Juror 30 do not warrant a new trial.

C. The Preexisting Conditions Instruction Was Redundant

Philip Morris asked the circuit court to instruct the jury

on how to apportion damages among Ricapor-Hall’s diagnoses. The

court declined.

That was not error.

A trial court must give a proposed instruction when it (1)

“accurately states the law,” (2) “is applicable to an issue

presented,” and (3) “is not needlessly duplicative.” Medeiros

v. Choy, 142 Hawaiʻi 233, 240, 418 P.3d 574, 581 (2018). Philip

Morris’ instruction cleared the first. Not the second or third.

The circuit court’s other instructions already limited the

jury’s award to Ricapor-Hall’s lung cancer. The jury was told

that Ricapor-Hall “is only asserting claims” for her “lung

cancer and the related treatment.” It heard that although

evidence of her “other diseases or conditions, including [COPD],

peripheral vascular diseases, and heart disease” had come in,

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there was “no claim” that Philip Morris caused “any other

disease.” It was told it could award “only” damages “legally

caused by” Philip Morris’ cigarettes, negligence, or fraud, and

not “speculative damages.”

These instructions took every disease but lung cancer off

the table. The jury could not award damages for COPD. Or heart

disease. Or peripheral vascular disease. There was nothing to

split.

We presume the jury acted reasonably and followed the

court’s instructions. Myers, 76 Hawaiʻi at 165, 871 P.2d at

1235. Nothing suggests the jury strayed. Presuming otherwise,

as Philip Morris asks, is “impermissible.” Kato v. Funari, 118

Hawaiʻi 375, 383-84, 191 P.3d 1052, 1060-61 (2008) (rejecting

presumption that jury awarded damages for “pre-existing

conditions and post-accident injuries” when instructed to limit

damages to those “legally caused by [defendant’s] negligence”).

Philip Morris says Hawaiʻi law puts the apportionment burden

on the plaintiff. See Loui v. Oakley, 50 Haw. 260, 264 n.3, 438

P.2d 393, 397 n.3 (1968).

True. But apportionment presupposes injuries to divide.

Here there was one injury. Ricapor-Hall limited her claim to

lung cancer. The instructions kept the jury there.

The record confirms the point. Preexisting injuries are “a

question of fact for which medical testimony is especially

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appropriate.” Montalvo v. Lapez, 77 Hawaiʻi 282, 299, 884 P.2d

345, 362 (1994). Philip Morris presented no expert who assigned

any part of her lung cancer to another cause. When the chance

came, Philip Morris passed. A litigant cannot manufacture error

from a foundation it chose not to build.

Philip Morris also points to Ricapor-Hall’s closing, where

counsel told the jury it would “have to . . . put a monetary

amount to a pair of healthy lungs.” It did not object. And

read in context, counsel was inviting the jury to value what her

lung cancer took, not her other conditions.

No jury instruction error. No new trial.

D. Cigarettes Are Not an Unavoidably Unsafe Product

Philip Morris asked for a jury instruction drawn from

comment k of the Restatement (Second) of Torts § 402A. The

court declined.

The court got it right.

Comment k exempts sellers of products “which, in the

present state of human knowledge, are quite incapable of being

made safe for their intended and ordinary use.” Restatement

(Second) of Torts § 402A cmt. k, at 353.

Take Pasteur’s rabies vaccine. The Restatement’s leading

example. Rabies “invariably leads to a dreadful death.” Id.

The vaccine itself carries an “unavoidable high degree of risk.”

Id. But because rabies is fatal without it, the vaccine’s use

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is “fully justified.” Id. The comment extends to “many other

drugs, vaccines, and the like.” Id. at 354.

Comment k trades known risk for meaningful benefit. The

kind of benefit that saves lives or averts serious disease.

Cigarettes flip the equation. They cause disease. They do

not cure it.

This court has rejected comment k for a product with real

medical value. Cigarettes have none. In Larsen, the

manufacturer of a recalled pacemaker sought comment k cover.

Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 22, 837 P.2d 1273,

1285 (1992). This court refused. The pacemaker was not

“sufficiently analogous to a new and experimental drug to

warrant comment k exemption.” Id. at 24-25, 837 P.2d at 1286.

The analogy doesn’t stretch to cigarettes. They treat

nothing. They prevent nothing. If a pacemaker cannot invoke

comment k, cigarettes have no chance. A pacemaker saves lives.

A cigarette ends them.

Philip Morris hangs its argument on Ricapor-Hall’s

testimony that she “enjoyed smoking.” Pleasure is not the

benefit comment k contemplates. Comment k concerns products

whose benefits are substantial enough to justify their known

risks. The rabies vaccine. Prescription drugs. Medical

devices. See Restatement (Second) of Torts § 402A cmt. k;

Pollard v. Ashby, 793 S.W.2d 394, 399 (Mo. Ct. App. 1990)

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(collecting drug cases); Tansy v. Dacomed Corp., 890 P.2d 881,

885 (Okla. 1994) (collecting device cases).

No court has extended comment k to cigarettes. See

Guilbeault v. R.J. Reynolds Tobacco Co., 84 F. Supp. 2d 263, 279

n.6 (D.R.I. 2000) (comment k “not relevant” to a cigarette

manufacturer).

Cigarettes fall outside comment k. The proposed

instruction had no basis.

The instruction was defective for another reason. Comment

k immunity is an affirmative defense. See Burningham v. Wright

Med. Tech., Inc., 448 P.3d 1283, 1291 (Utah 2019); Tansy, 890

P.2d at 886. Philip Morris had the burden. Its instruction

never told the jury that.

No error. Comment k protects vaccines. Not cigarettes.

E. Ricapor-Hall’s Punitive Damages Claim Survives

Philip Morris’ final challenge concerns punitive damages.

It contends the MSA between the tobacco industry and the states

barred Ricapor-Hall’s claim. And that if the MSA didn’t, claim

preclusion did.

Both arguments fail.

1. The MSA Preserves the Claim

Settlement agreements are contracts. Exotics Hawaii-Kona,

Inc. v. E.I. du Pont de Nemours & Co., 116 Hawaiʻi 277, 288, 172

P.3d 1021, 1032 (2007). When parties settle a case, their

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agreement defines its preclusive reach. See Hite v. Queen’s

Hosp., 36 Haw. 250, 308 (Haw. Terr. 1942); Wong v. Cayetano, 111

Hawaiʻi 462, 481, 143 P.3d 1, 20 (2006).

The MSA’s text answers the question.

The MSA releases claims by “Releasing Parties.” The term

covers anyone in a “private attorney general” or “any other

capacity.” But only when they seek “relief on behalf of or

generally applicable to the general public,” “as opposed solely

to private or individual relief for separate and distinct

injuries.”

That draws the line.

Ricapor-Hall was not a Releasing Party. She did not sue on

behalf of the general public. She sought damages for her own

lung cancer. And she sought punitive damages tied to Philip

Morris’ conduct toward her, not anyone else.

Everyone at trial said so. The circuit court instructed

the jury that it could “not impose punitive damages on [Philip

Morris] in order to punish it for[] harms suffered by other

people,” and that it could punish Philip Morris only for conduct

“shown to have caused [Ricapor-Hall’s] injuries.” Ricapor-

Hall’s counsel told the jury, “It’s about her. It’s about her.”

Philip Morris’ counsel took the same position: “this is not a

referendum on smoking. . . . [I]t has to be tied to Mrs.

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Ricapor-Hall.” And again at closing, counsel argued “general

harms” were “not the purpose of awarding punitive damages here.”

Philip Morris said it at trial. It is bound by it now.

Other courts have read the MSA the same way. In Laramie,

the Massachusetts Supreme Judicial Court held that the MSA

“released Philip Morris from liability for punitive damages to

persons . . . seeking relief on behalf of the general public”

but “preserved claims for individual relief for separate and

distinct injuries.” Laramie v. Philip Morris USA, Inc., 173

N.E.3d 731, 740 (Mass. 2021). So did Williams. See Williams v.

R.J. Reynolds Tobacco Co., 271 P.3d 103, 113 (Or. 2011).

The MSA does not bar Ricapor-Hall’s punitive damages.

2. Claim Preclusion Misses Two Elements

Claim preclusion requires (1) “a final judgment on the

merits,” (2) “both parties are the same or are in privity,” and

(3) “the claim decided in the original suit is identical with

the one presented in the action in question.” Priceline.com,

Inc. v. Dir. of Tax’n, 144 Hawaiʻi 72, 82, 436 P.3d 1155, 1165

(2019).

Here, two of the three elements are missing.

a. The Claims Are Not Identical

Ricapor-Hall’s claims could not have been litigated in the

1997 Attorney General suit. They had not yet accrued. Doctors

detected her lung cancer in 2019, twenty-two years later.

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Claim preclusion is “inapplicable in a later suit where the

cause of action did not accrue until after the complaint in a

prior action was filed.” Wong, 111 Hawaiʻi at 478, 143 P.3d at

17. The rule does not reach claims that did not yet exist.

Philip Morris says the two lawsuits are identical because

both punished it for the same fraudulent conduct. This misses

the point.

The Attorney General sued to recover the State’s economic

burden. Medicaid costs, public healthcare spending, and other

public losses. Ricapor-Hall sued for the harm to her lungs. As

Philip Morris told the jury, “general harms” were “not the

purpose of awarding punitive damages here.” Same defendant.

Different wrongs.

Other courts see two suits, not one. See Laramie, 173

N.E.3d at 746 (plaintiff’s wrong was “the loss she and her

daughter sustained”; the Attorney General’s was “the

Commonwealth’s increased medical expenditures”); Williams, 271

P.3d at 112 n.11; In re Exxon Valdez, 270 F.3d 1215, 1227-28

(9th Cir. 2001) (public and private punitive damages claims are

“distinct”); Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1260-

61 (Fla. 2006).

b. The Parties Are Not in Privity

The Attorney General did not represent Ricapor-Hall’s

interest. It sued for the State’s own economic injuries, not

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for the personal injuries of smokers. Ricapor-Hall sued for her

injuries. Those interests diverge.

Philip Morris’ contrary argument rests on the premise that

punitive damages in Hawaiʻi serve an “exclusively public”

purpose. They do not.

This court recently observed that “punitive damages

increasingly remedy social rather than purely individual harms.”

Guieb v. Guieb, 156 Hawaiʻi 162, 172, 571 P.3d 382, 392 (2025)

(emphasis added). “Increasingly” is doing work. The public

dimension of punitive damages is additive, not exclusive. See

Howell v. Associated Hotels, Ltd., 40 Haw. 492, 499-500 (Haw.

Terr. 1954) (recognizing compensatory effect of exemplary

damages); Masaki v. Gen. Motors Corp., 71 Haw. 1, 8 n.2, 780

P.2d 566, 571 n.2 (1989) (identifying functions of punitive

damages: preserving the peace, inducing private enforcement,

compensating for uncompensable losses, and paying attorney

fees).

As this case shows, punitive damages can serve private

ends. The court told the jury to punish Philip Morris only for

conduct that caused Ricapor-Hall’s injuries. So did both sides.

Her interest in the punitive award was hers alone.

Philip Morris also invokes Hawaiʻi’s private attorney

general doctrine. But it’s a fee-shifting rule for plaintiffs

who vindicate important public rights. See In re Water Use

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Permit Applications, 96 Hawaiʻi 27, 29, 25 P.3d 802, 804 (2001).

Ricapor-Hall did not seek attorney fees. She did not vindicate

a public right. She sought damages for her own injury. The

doctrine doesn’t fit.

Philip Morris urges us to follow Gault and Fabiano.

Neither controls. Gault turned on a Georgia statute that limits

products liability defendants to a single punitive damages award

and diverts seventy-five percent to the state treasury. Brown &

Williamson Tobacco Corp. v. Gault, 627 S.E.2d 549, 552 (Ga.

2006). Fabiano turned on a New York rule that confines punitive

damages to conduct “affecting the public generally.” Fabiano v.

Philip Morris Inc., 862 N.Y.S.2d 487, 490 (N.Y. App. Div. 2008).

Hawaiʻi has neither rule.

Laramie and Williams read the MSA itself. Both went the

other way. So do we.

Claim preclusion does not apply.

The circuit court called it correctly. Verdict stands.

F. The Circuit Court Erred in Reducing Ricapor-Hall’s Award

Ricapor-Hall raises one issue. She says the circuit court

was wrong to reduce her damages by her percentage of comparative

negligence on the conspiracy claims. A plaintiff’s negligence,

she argues, does not reduce damages for an intentional tort.

Ricapor-Hall is right.

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An intentional tort is a choice. The tortfeasor intends

the act and intends the injury. Aloha Petroleum, Ltd. v. Nat’l

Union Fire Ins. Co. of Pittsburgh, 155 Hawaiʻi 108, 120, 557 P.3d

837, 849 (2024).

Hawaiʻi law does not reward a defendant for targeting the

careless over the careful. As this court colorfully stated more

than a century ago, the law “is not designed to protect the

vigilant alone, . . . but is intended as a protection to even

the foolishly credulous as against the machinations of the

designedly wicked.” Cummins v. Cummins, 24 Haw. 116, 119 (Haw.

Terr. 1917).

We affirm that principle. A plaintiff’s negligence does

not reduce damages for an intentional tort. One who

deliberately inflicts harm may not benefit from their victim’s

negligence.

1. HRS § 663-31 Applies Only to Negligence Claims

Before HRS § 663-31, all negligence claims were subject to

the common law doctrine of contributory negligence. Ozaki v.

Ass’n of Apartment Owners of Discovery Bay (Ozaki II), 87 Hawaiʻi

265, 269, 954 P.2d 644, 648 (1998). The old regime was all-or-

nothing. A plaintiff’s negligence completely barred recovery.

Id.

The Legislature softened the doctrine in 1969. Wong v.

Hawaiian Scenic Tours, Ltd., 64 Haw. 401, 405, 642 P.2d 930, 933

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(1982) (per curiam) (“The legislative modification of the

doctrine of contributory negligence . . . sought to temper a

phase of the common law deemed inconsistent with contemporary

notions of fairness.”). HRS § 663-31 only bars recovery when a

plaintiff’s negligence is “greater” than the negligence of all

defendants. HRS § 663-31. Otherwise, it reduces a negligent

plaintiff’s recovery based on their “proportion” of fault. Id.

Here, though, the statute does not apply to the intentional

tort claims against Philip Morris. “Statutory interpretation

starts with the statute’s words.” Alpha, Inc. v. Bd. of Water

Supply, 154 Hawaiʻi 486, 490, 555 P.3d 173, 177 (2024). By its

terms, the statute governs only actions “for negligence.” HRS

§ 663-31. In addition to a negligence claim, Ricapor-Hall also

alleged the intentional torts of conspiracy to commit fraudulent

concealment and conspiracy to commit fraudulent

misrepresentation. See 16 Am. Jur. 2d Conspiracy § 53 (“civil

conspiracy is an intentional tort”).

In the Special Verdict form, the jury found general damages

of $6 million. There is no assignment of damages to specific

claims and no way to apply HRS § 663-31 only to the negligence

claim. So HRS § 663-31 does not control.

2. Pure Comparative Negligence Does Not Apply Per Cummins

That leaves the common law. The circuit court reduced

Ricapor-Hall’s damages by forty-six percent based on her

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negligence. It should not have.

Cummins forecloses it. In fraud cases, reducing damages by

the victim’s negligence clashes with more than a century of

Hawaiʻi law.

Long ago, this court held that “a person guilty of

fraudulent misrepresentation cannot escape the effects of his

fault on the ground of the injured party’s negligence.”

Cummins, 24 Haw. at 120-21. That principle was “well settled”

even then. Id. at 122. The court explained:

[W]here it appears that one party has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other party has been misled, or influenced in his action, he cannot escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable diligence and care.

Id. Put simply, a “party guilty of fraud can take no benefit”

from the victim’s carelessness. Id.

Cummins’ rule is rooted in policy. The law would rather

“encourage negligence in the foolish” than “fraud in the

deceitful.” Id. at 119. What the defendant did matters more

than what the plaintiff failed to do.

Comparative negligence principles have evolved in other

areas of the law, but Cummins’ prohibition remains. Compare

Hao, 69 Haw. at 236, 738 P.2d at 418-19 (applying pure

comparative negligence to strict products liability claims),

with Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawaiʻi 149,

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163, 73 P.3d 687, 701 (2003) (citing Cummins’ rule).

Cummins forbids reducing damages for fraudulent conduct

based on the victim’s negligence. The circuit court did just

that.

The jury found Philip Morris liable on conspiracy to commit

fraudulent misrepresentation. That finding required proof of an

intentionally false or misleading representation, intent to

induce Ricapor-Hall’s reliance, and Ricapor-Hall’s reliance on

the false representation to her detriment.

The jury awarded Ricapor-Hall general damages for this

deliberate, fraudulent misconduct. The circuit court cut that

award by forty-six percent based on her negligence.

The result violates Cummins. Philip Morris engaged in

“fraudulent conduct” that misled Ricapor-Hall to her detriment.

Yet the circuit court let it “escape the effects of [its] fault

on the ground of [Ricapor-Hall’s] negligence” when it slashed

damages by forty-six percent. Cummins, 24 Haw. at 121-22.

The jury’s negligence finding does not change the result.

Where a plaintiff prevails on both negligence and intentional-

tort theories covering the same injury, with damages not

specified for each claim, the intentional-tort verdict shields

the full award from comparative reduction. Otherwise the extra

win on negligence would penalize the plaintiff, not the

defendant.

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Philip Morris’ $2,760,000 windfall makes the error

unmistakable. The court let a fraudulent actor profit from its

victim’s failure to “exercise[] reasonable diligence and care.”

Id. at 122.

Philip Morris seeks to confine Cummins to complete bars.

It offers two versions of the same argument. First, that

Cummins’ language of “escape” reaches only outright avoidance of

liability, not reductions in damages. Second, that because

Cummins was decided when contributory negligence was itself an

all-or-nothing defense, its rule likewise addresses only

complete bars, not partial reductions.

Both readings shrink Cummins. The court did not speak of

liability alone. It spoke of “the effects” of a defendant’s

wrongdoing. Id. at 121. And it forbade parties “guilty of an

intentional and deliberate fraud” from “escap[ing] the legal

consequences of [their] fraudulent conduct,” based on an injured

party’s negligence. Id. at 121-22 (emphasis added).

Legal consequences include damages. See Kanahele v. Han,

125 Hawaiʻi 446, 457-58, 263 P.3d 726, 737-38 (2011) (damages

awarded as a “consequence of” the violation of a legal right);

see also Damages, Black’s Law Dictionary 488 (12th ed. 2024).

Reducing Ricapor-Hall’s damages let Philip Morris escape

legal consequences “on the ground of the injured party’s

negligence.” Cummins, 24 Haw. at 121. That the escape is

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partial, rather than total, does not save it. And that Cummins

arose in a contributory negligence world does not confine its

principle to that world.

Cummins does more than announce a rule. It explains why

the rule reaches damages reductions too. “[T]he party guilty of

fraud can take no benefit” from their victim’s failure to

“exercise[] reasonable diligence and care.” Cummins, 24 Haw. at

122 (emphasis added). Paying less in damages is a benefit.

Comparative negligence does not apply.

Other courts agree. They treat contributory negligence’s

inapplicability to intentional torts as the reason a plaintiff’s

negligence cannot reduce intentional-tort damages. See, e.g.,

McLain v. Training & Dev. Corp., 572 A.2d 494, 497 (Me. 1990)

(quoting Prosser & Keeton on the Law of Torts § 67, at 477–78

(5th ed. 1984)) (“[C]ontributory negligence never has been

considered a good defense to an intentional tort such as a

battery, and it would likewise appear contrary to sound policy

to reduce a plaintiff’s damages under comparative fault for his

‘negligence’ in encountering the defendant’s deliberately

inflicted harm.”); Heiner v. Kmart Corp., 100 Cal. Rptr. 2d 854,

865 (Cal. Ct. App. 2000) (same); R.J. Reynolds Tobacco Co. v.

Gerald, 76 V.I. 656, 731 n.47 (V.I. 2022) (collecting cases).

American Law Reports explains why:

The clearly prevailing view is that comparative negligence principles are not applicable to intentional torts . . . .

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The rationale for this view rests on the general assumption that comparative negligence evolved to provide compensation to tort victims, who were barred by the harsh doctrine of contributory negligence, and should not be used to diminish recovery where the common law had previously treated an intentional tort victim’s contributory fault as irrelevant to damage recovery where an intentional tort was inflicted.

A.L. Schwartz, Applicability of Comparative Negligence

Principles to Intentional Torts, 18 A.L.R. 5th 525, § 2[a]

(1994).

Cummins’ rejection of contributory negligence for

intentional torts bars comparative negligence as well.

Comparative negligence’s original purpose reinforces this

conclusion. It “was designed ‘to mitigate the unjust hardships

that the contributory negligence doctrine imposes on accident

victims.’” Field v. Boyer Co., L.C., 952 P.2d 1078, 1084 (Utah

1998) (Stewart, J., concurring and dissenting) (quoting 4 Fowler

V. Harper et al., The Law of Torts § 22.5, at 295 (2d ed.

1986)). It aimed “to provide compensation to tort victims,” not

to reduce recovery. Schwartz, supra § 2[a].

Hawaiʻi’s own statute reflects this understanding. The

legislature abrogated contributory negligence because it deemed

the doctrine “unfair.” See Rapoza v. Parnell, 83 Hawaiʻi 78, 82,

924 P.2d 572, 576 (App. 1996). And it intended HRS § 663-31 to

“allow” negligent plaintiffs “to be recompensed” where they

previously could not. Hawaiian Scenic Tours, Ltd., 64 Haw. at

405, 642 P.2d at 933.

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These legislative aims do not license damages reductions

where the plaintiff’s negligence did not previously limit

recovery.

Cummins itself was a fraud case. Philip Morris’

intentional torts involved fraudulent conduct. It was “well

settled” in 1917 that “a party guilty of fraudulent conduct

shall not be allowed to cry ‘negligence,’ as against his own

deliberate fraud.” Cummins, 24 Haw. at 122. It still is. The

rule reaches reductions, not just outright prohibitions.

Here, the jury found Philip Morris liable for negligence,

strict products liability, and conspiracy to commit fraud. It

found Ricapor-Hall sustained $6 million in general damages. But

the Special Verdict form did not ask the jury to assign damages

to each claim. In these circumstances, the circuit court erred

in reducing Ricapor-Hall’s damages based on her negligence.

When a defendant commits an intentional tort, the

plaintiff’s negligence does not reduce damages. This tracks

“the traditional common law rule that contributory negligence

does not bar or result in apportionment of damages in an

intentional tort claim.” Gerald, 76 V.I. at 733.

The rule is not confined to fraud. Cummins arose from

fraud, but its principle pivots on intent. 24 Haw. at 122.

Intent binds every intentional tort. See Restatement (Third) of

Torts: Apportionment of Liab. § 12 cmt. b (Am. L. Inst. 2000).

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Fraud, battery, conversion, intentional infliction of emotional

distress – the rule reaches them all.

This holding overrules Ozaki I. See Ozaki v. Ass’n of

Apartment Owners of Discovery Bay (Ozaki I), 87 Hawaiʻi 273, 954

P.2d 652 (App. 1998). That case was a domestic violence murder.

A tenant was strangled by her estranged boyfriend in her own

apartment. The jury assigned her five percent of the fault.

Ozaki I let that five percent reduce her estate’s recovery from

her killer. Id. at 282-83, 954 P.2d at 661-62. That is what

Cummins forbids.

3. Hawaiʻi’s Strict Products Liability Cases Are Distinguishable

This court’s embrace of pure comparative negligence

elsewhere does not justify adopting it here.

Kaneko, Armstrong, and Hao applied pure comparative

negligence to strict products liability claims. See Kaneko v.

Hilo Coast Processing, 65 Haw. 447, 463, 654 P.2d 343, 353

(1982); Armstrong v. Cione, 69 Haw. 176, 180-83, 738 P.2d 79,

82-83 (1987); Hao, 69 Haw. at 236, 738 P.2d at 418-19 (together,

Kaneko line). Thus, a plaintiff’s negligence “reduces but does

not defeat” their strict products liability claim, even when the

plaintiff’s fault is greater than that of the defendants. Hao,

69 Haw. at 236, 738 P.2d at 419.

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Philip Morris argues that applying pure comparative

negligence to intentional tort claims “flows naturally” from the

Kaneko line.

It doesn’t.

That caselaw is specific to strict products liability and

does not extend to intentional torts. The policy, doctrine, and

equities all cut the other way.

a. Policy Aims

The Kaneko line’s underlying policy interests do not

translate to the intentional-tort context.

When this court applied comparative negligence to strict

products liability claims, it did not consider whether the rule

extends to intentional torts, or how deliberate conduct alters

the calculation. Rather, the court “fashion[ed] a rule of

comparative negligence to suit [its] original purposes in

adopting strict products liability.” Armstrong, 69 Haw. at 180,

738 P.2d at 82. Those purposes include protecting consumers,

holding manufacturers and distributors accountable for placing

dangerous goods in the market, and creating economic incentives

for safer products. Id. at 182, 738 P.2d at 82-83.

Though vital to strict products liability, these aims are

irrelevant to intentional torts. Cf. Ozaki II, 87 Hawaiʻi at

271, 954 P.2d at 650 (recognizing that “[t]he public policy

underlying the decision” to apply pure comparative negligence to

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strict products liability claims “simply has no bearing” on a

negligence claim).

b. Doctrinal Justifications

Two doctrinal aspects of strict products liability justify

applying comparative negligence there. Neither justifies it

here.

First, strict products liability imposes liability

regardless of fault. That calls for guardrails. See Kaneko, 65

Haw. at 463, 654 P.2d at 353.

Hawaiʻi imposes strict liability on manufacturers of

dangerous, defective products regardless of fault. The point is

to shift “the burden of accidental injuries caused by defective

chattels” to those best positioned to prevent them. Id. at 452,

654 P.2d at 347; Armstrong, 69 Haw. at 182, 738 P.2d at 82

(quoting Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470

P.2d 240, 243 (1970)).

But strict products liability “was never intended to be

‘absolute liability.’” Kaneko, 65 Haw. at 463, 654 P.2d at 353

(quoting Daly v. Gen. Motors Corp., 575 P.2d 1162, 1166 (Cal.

1978)).

Manufacturers are not “insurers of the safety of the

product’s user.” Id. Accounting for a plaintiff’s negligence

keeps the doctrine tethered to “accidental injuries” and

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“defective chattels.” Armstrong, 69 Haw. at 182, 738 P.2d at

82.

Intentional torts need no such guardrails. They pose no

risk of drifting into absolute liability because every

intentional tort has intent built into its elements. See

Restatement (Third) of Torts: Apportionment of Liab. § 12 cmt. b

(“intent is an element in all intentional torts”). Intent is

the limit.

Second, a plaintiff’s assumption of risk historically

barred recovery in strict products liability, even though a

plaintiff’s negligence would only reduce damages in a negligence

action. See Kaneko, 65 Haw. at 463, 654 P.2d at 353-54.

Kaneko called this an “anomaly” that rewarded skillful

pleading and produced “an imbalance” between the two theories.

Id. Comparative negligence cured it, replacing the all-or-

nothing bar with proportional reduction. Id.

No such anomaly exists for intentional torts. A

plaintiff’s negligence does not bar recovery for an intentional

tort. See Restatement (Second) of Torts § 481 (1965).

There is no all-or-nothing bar to soften, so the

justification for importing comparative negligence falls away.

See, e.g., Flood v. Southland Corp., 616 N.E.2d 1068, 1071-72

(Mass. 1993); Burke v. 12 Rothschild’s Liquor Mart, Inc., 593

N.E.2d 522, 531 (Ill. 1992).

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Both doctrinal features support comparative negligence for

strict liability. Neither reaches intentional torts.

c. Fairness and Equity

Fairness and equity concerns widen the gap. In strict

products liability actions, fairness supports comparative

negligence. In intentional torts it does the opposite.

Kaneko rejected the objection that strict liability and

comparative negligence “are incapable of being reconciled”

because strict liability is “not based upon negligence.” 65

Haw. at 460, 654 P.2d at 351.

The court acknowledged the “conceptual and semantic

problems,” but held the doctrines “not incompatible.” Id. at

460-61, 654 P.2d at 352. Because strict products liability “was

premised on equity and fairness,” reducing a negligent

plaintiff’s recovery “accomplish[es] a fairer and more equitable

result.” Id. at 461, 654 P.2d at 352.

“[F]airness and equity are more important than semantic

consistency.” Id. So it is with intentional torts. But here,

those values compel the opposite outcome. They forbid reducing

damages.

Intentional tortfeasors are the worst kind. They intend to

cause injury. Aloha Petroleum, Ltd., 155 Hawaiʻi at 120, 557

P.3d at 849.

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The law treats them differently than the merely negligent.

See Cummins, 24 Haw. 116; see also Restatement (Third) of

Torts: Apportionment of Liability § 1 (2000), Reporters’ Note,

cmt. b (“When a defendant intentionally invades a plaintiff’s

rights, it makes sense to have different defenses, different

rules about damages, and so forth, than when a defendant is

merely negligent or, in strict liability, is innocent.”)

(emphasis added).

Most courts do not apportion intentional-tort damages based

on a plaintiff’s negligence. Id. § 1, cmt. c.

The usual reason is conceptual. Intentional misconduct and

negligence are “not comparable.” See, e.g., Florenzano v.

Olson, 387 N.W.2d 168, 176 n.7 (Minn. 1986) (“The difference

between the victim’s actions and the defendant’s action is not

one of degree, but of kind, and they are therefore not

comparable.”).

The conceptual argument is persuasive. Intentional conduct

involves a deliberate choice to act wrongfully. Negligence, by

contrast, is a failure to exercise reasonable care. The two

differ in kind. Comparisons are fraught.

But policy drives the rule too. See Field, 952 P.2d at

1083 (Stewart, J., concurring and dissenting) (“Intentional

wrongdoing is so much graver a wrong than negligence . . . that

the . . . need both to deter and to punish it outweighs any

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social benefits that are thought to accrue from the rule of

contributory negligence.”).

The fairness stakes are high. Using a plaintiff’s

negligence to reduce damages for intentional torts produces

absurd results. Id.

Consider a con artist who defrauds an elderly investor.

She could shave damages by arguing that the victim negligently

failed to check her references. Or a thief who takes a car left

running outside a coffee shop after the owner stepped inside for

a minute. He could reduce exposure by arguing that the owner

should not have left the keys in the ignition. These outcomes

are intolerable under Hawaiʻi law.

The incentives are also twisted. Reducing intentional-tort

damages by a plaintiff’s negligence entices defendants to target

careless victims. They can cut the price of their misconduct by

showing their mark acted without due care.

We decline to create such a reward. Cf. Florenzano, 387

N.W.2d at 176 n.7 (“We . . . consider it bad policy to permit an

intentional tortfeasor the defense of comparative negligence

merely because he or she chooses a gullible or foolish

victim.”).

Comparative negligence would not “accomplish a fairer and

more equitable result” in intentional-tort actions. Kaneko, 65

Haw. at 461, 654 P.2d at 352. Far from it. Reducing

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intentional-tort damages by the victim’s negligence “turns both

morality and the law on their heads.” Field, 952 P.2d at 1083

(Stewart, J., concurring and dissenting).

4. Other Courts Agree

Ricapor-Hall’s negligence does not reduce her damages for

intentional torts. Other jurisdictions are divided. Gerald and

Schoeff agree with us. Blazovic does not. See Gerald, 76 V.I.

656; Schoeff v. R.J. Reynolds Tobacco Co., 232 So.3d 294 (Fla.

2017); Blazovic v. Andrich, 590 A.2d 222 (N.J. 1991).

In Gerald, the Virgin Islands Supreme Court held as we do:

a plaintiff’s comparative negligence cannot reduce intentional-

tort damages. 76 V.I. at 733-34. The case is a close analogue.

Like Ricapor-Hall, Gerald prevailed on both negligence and

intentional-tort claims, and was assigned a percentage of fault.

Id. at 730 n.45-46.

The defendant argued the trial court should have reduced

damages by that fault. Id. at 730.

The Virgin Islands Supreme Court disagreed. Id. at 734.

Like Hawaiʻi, the Virgin Islands had enacted a comparative

negligence statute to abolish the contributory-negligence bar.

Id. at 730. And like HRS § 663-31, that statute “only applies

to actions based on ‘negligence,’” so “it cannot be read as

applying to intentional conduct.” Id. at 732.

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The legislature “could have chosen to apply comparative

fault to intentional torts as well, but it chose not to.” Id.

at 733.

Because legislatures are presumed to know the common law

and statutes in derogation of it are strictly construed, Gerald

read the comparative negligence statute narrowly. Id. at 733.

It “only overruled” the contributory-negligence bar. Id. It

“did not overrule the traditional common law rule that

contributory negligence does not bar or result in apportionment

of damages in an intentional tort claim.” Id.

Gerald’s analysis tracks ours.

In Hawaiʻi, abrogation of the common law is disfavored. HRS

§ 1-1 makes common law principles applicable “except as

otherwise expressly provided by the Constitution or laws of the

United States, or by the laws of the State.” HRS § 1-1 (2009).

And this court is “unwilling[] to impliedly reject its

principles[] . . . absent a finding of ‘express [legislative]

intent.’” Gold Coast Neighborhood Ass’n v. State, 140 Hawaiʻi

437, 452, 403 P.3d 214, 229 (2017).

The Hawaiʻi Legislature imposed a modified comparative

negligence scheme on negligence actions. See HRS § 663-31;

Ozaki II, 87 Hawaiʻi at 270, 954 P.2d at 649. But it did not

alter the common law’s treatment of intentional torts.

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Like the Virgin Islands, Hawaiʻi “could have chosen to apply

comparative fault to intentional torts.” Gerald, 76 V.I. at

733. It did not. And its silence does not abrogate the common

law. The intentional-tort rule survives.

Gerald does not stand alone. The Florida Supreme Court

reached the same conclusion in Schoeff, holding it error to

reduce a smoker’s intentional-tort damages by their comparative

fault. 232 So.3d at 305.

Florida’s comparative fault statute, like HRS § 663-31,

reaches only negligence. Id. at 301. And the court applied the

same canon we do: a statute is read narrowly against displacing

the common law, under which “intentional torts are not reduced

by comparative fault.” Id. at 304; see Burns Int’l Sec. Servs.,

Inc. v. Dep’t of Transp., 66 Haw. 607, 611, 671 P.2d 446, 449

(1983).

True, Florida’s exemption is express and HRS § 663-31’s is

not. But we have read HRS § 663-31’s plain language to apply

only to negligence claims. Ozaki II, 87 Hawaiʻi at 270, 954 P.2d

at 649 (where negligence was one of several theories against the

same defendant, HRS § 663-31 “applied only to the plaintiffs’

contributory negligence and did not operate as a complete bar to

recovery with respect to other asserted theories of liability”).

The limited reach is clear either way. Where the legislature

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left the common law intact, we follow the common law. See Burns

Int’l, 66 Haw. at 611, 671 P.2d at 449.

Blazovic went the other way. It applied comparative fault

to intentional torts. Blazovic, 590 A.2d at 231. But it turned

on a materially different statute, and its facts do not match

ours. These differences make Blazovic a poor fit.

Blazovic involved a late-night brawl outside a bar. Id. at

224. The plaintiff sued the bar for negligence and four men for

assault and battery. Id. The jury found the bar and the

plaintiff negligent and the four men liable for intentional

assault. But the trial court let the jury apportion fault only

between the two negligent parties. Id. The New Jersey Supreme

Court reversed. Fault must be apportioned to the intentional

tortfeasors, it held, and a plaintiff’s comparative fault

reduces recovery. Id. at 231, 233-34.

Two features make Blazovic unpersuasive here. First, New

Jersey’s statute is “not limited to negligence actions” and “was

intended to cover fault in a broader sense rather than in the

narrow negligence concept.” Id. at 226-27. HRS § 663-31 is the

opposite. It is confined to actions “for negligence.” See

Ozaki II, 87 Hawaiʻi at 269-70, 954 P.2d at 648-49. Blazovic’s

result followed its broad statute; ours follows our narrow one.

Second, Blazovic’s concern was apportioning fault “in a multi-

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party case.” 590 A.2d at 227. This is not one. Philip Morris

was the only defendant at trial.

Blazovic is therefore not compelling. Gerald and Schoeff

are the better analogues.

G. Philip Morris’ New Trial Arguments Fail

The circuit court erred in reducing Ricapor-Hall’s damages.

Philip Morris argues the remedy should be a new trial on

damages. It speculates that the jury might have awarded less if

the circuit court had not instructed it on comparative

negligence. But the court’s other instructions guarded against

that result. The court told the jury to “determine the total

amount of [Ricapor-Hall’s] damages, without regard to whether

[Ricapor-Hall’s] own negligence was also a legal cause of her

injuries.” (Emphasis added.) Again, we presume the jury

followed that instruction. Myers, 76 Hawaiʻi at 165, 871 P.2d at

1235.

Philip Morris’ second argument fares no better. It says a

new trial is warranted because the circuit court declined its

proposed instruction on mitigation of damages. It isn’t.

The duty to mitigate is a doctrine of “avoidable

consequences.” Montalvo, 77 Hawaiʻi at 287, 884 P.2d at 350. It

is not about preventing the injury. It concerns the plaintiff’s

obligation to make reasonable efforts to “alleviate the effects

of the injury.” Mitigation of Damages Doctrine, Black’s Law

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Dictionary 1198 (12th ed. 2024); see Gibo v. City & Cnty. of

Honolulu, 51 Haw. 299, 305, 459 P.2d 198, 202 (1969) (plaintiff

has “duty to use reasonable care to effect a cure and to avoid

aggravation of injuries”). A plaintiff must be “aware of” the

injury before any duty to mitigate arises. Restatement (Third)

of Torts: Remedies § 8 (Am. L. Inst., Tentative Draft No. 1,

2022).

Philip Morris misses this temporal distinction.

It argued below that Ricapor-Hall’s smoking “before 2019”

“justified the giving of the mitigation instruction.” It

didn’t. Ricapor-Hall only sought damages for her lung cancer,

and doctors did not detect that cancer until 2019. Her duty to

mitigate could not begin until she learned of her condition.

To receive the instruction, Philip Morris had to show that

Ricapor-Hall failed to take reasonable steps to mitigate after

her diagnosis. See Malani v. Clapp, 56 Haw. 507, 517, 542 P.2d

1265, 1271 (1975). It made no such showing.

A new trial is not warranted under either ground.

IV.

We vacate the portion of the final judgment reducing

Ricapor-Hall’s damages by forty-six percent. We remand for

entry of an amended judgment awarding Ricapor-Hall the full

$6,000,000 in general damages, subject to whatever settlement

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credits the circuit court determines are appropriate. In all

other respects, we affirm.

Scott A. Chesin and /s/ Vladimir P. Devens David M. Louie (Nicholas R. Monlux, Ryan D. /s/ Sabrina S. McKenna Louie, Annie Y.S. Chuang, Nalani L. Crisologo, and /s/ Todd W. Eddins Kenneth J. Reilly on the briefs) for appellant/cross-appellee /s/ Lisa M. Ginoza

David J. Sales and /s/ Jordon J. Kimura Alejandro Alvarez (Wayne Parsons, Sergio Rufo, William F. Brown, and Nicholas Reyes, on the briefs) for appellee/cross-appellant