here for review of this case and we are looking for the conclusion that the judgment will not stand in the case and to that end we have presented three issues for  review and we believe that the conclusion of those after review of those issues that the judgment should not stand the three main issues are first of all whether the district court just a court erred with regard to two evident rulings one has to do with hearsay testimony the other was improper cross examination of one of the state's witnesses the second relates to the issue of whether it was fair to callao plaintiff marianna's treating psychologist dr lynch to testify as an expert witness and then the third issue that we have raised is whether it was error for the the district court to did not i the state's post verdict renewed motion for judgment as a matter of law it is a little bit in your briefs there's a back and forth so let's start out with the assumption that we're not going to overturn any the district courts have a digital exam not saying that's the truth i'm just saying let's assume that all the evidence that the district evidence that's either appropriately in the record or harmlessly in the record why why was there enough evidence to go to a jury here where ya know it's not so much that it wasn't enough evidence to go to the jury actually though the basis of our post at that after the verdict was that because the jury found that miss lynn quist the individual had not acted with malice she was given the conditional privilege the qualified privilege the state privilege unless on the basis of a judgment against an employee unless the employee acted with what the state courts call malice correct yes yes ok and so therefore the judge i think correctly recognized in this state only acts through its employees and so therefore there would have had to be so using your position that they have to assume every employee who was there well not necessarily gone but in this case they did sue individuals one was given judgment early on as a result of a motion and this link this was the only one that remained and as it was there were other there were other state employees  who were actors in this situation to night to the extent of miss lindquist though your honor and all but you know it could be argued you know their actions were a solution basis on which to predicate the state liability you know and i think if we look at that we will see that if we look at those other individuals there were only a few and one that was mentioned by the district judge was deja mada and he actually did not have anything to to focus and that's my question but let's assume that the plaintiff in this case because it's the mother has had sent a notice to the board of education and said i think mr i think tom is dangerous i think he's done some of this stuff in the past and you want to take appropriate measures to make sure they don't happen in the future and that message was received but nobody acted on it would that be actionable negligence on the part of the state know that's a completely different circumstance well i'm not sure it's it's they pleaded in this case fell you know appropriately supervised tom they put in evidence that that his previous it may not be made if there was evidence it may not have been you know you may have contested that his previous conduct was brought to the attention of the authorities and that appears that no specific plan was developed to deal with him so why  isn't that enough without responding yet superior to impose liability on the state you're on to see that's one of the issues in the case and that's that there was no previous conduct that the state was put on notice of and  that's just that's not what i mean the plaintiff in this case you know she attended a meeting in which she told people about it i understand that you're in but if you look at the timeline the conduct that she alleges she complained about could not have happened at that previous meeting and the reason is that she and everyone agree that this alleged conduct happened when the students went off campus there was only one time that the students wen off campus that one time was december fourth of two thousand and twelve and so the meeting that that occurred was in november of two thousand and twelve so nothing could have happened at the time that you know you're making legal argument for your factual one again i'm asking or saw a lot but let's assume that some point previous to this incident somebody went to the school and said this kid is dangerous and i've got  know and here's here are some facts put aside when these various incident occurred could the school be liable under those circumstances in the absence of any specific liability negligence by an individual i think in that case yes your honor given those and your argument is that this record doesn't support that finding because of what you're saying that is correct your honor so if so if that were the case and if we think that issue is was contested on this record there was evidence on both sides there would be a basis for for the school's liability was there not if well if you believe that that this incident this other incident the  happened before that much it doesn't then that's that's why i want to ask you does it matter whether it occurred in other words if the mother if the mother went to the school board and said i think this young man is dangerous and you need to protect my daughter against him her basis for thinking so weren't accurate would they have some duty at that point to to do something if that had happened yes but but we can test that of course we can test that that happened or you don't contest that she went to the board before the incident that's involved in this case happened they had an i t meeting clearly they did sure and then she went to the end of that meeting she said she made her accusations against against this young man that's what she testified ok and so given the fact i'm trying to figure out what difference it makes whether she was right or wrong because she was certainly precious because you honor our positions because it was a discrete event of a certain discrete event and she admits that it happened in december therefore it couldn't have happened and the point is we get to the issue of notice did the school have notice about anything ruston did and all the other testimony that that was there was that ruston was a model student he was very trustworthy he was kind nobody ever ever had any them about a groping incident she was concerned about this groping incident the concern that we shared by the teacher was that ms linguist ted observed other students regular education students making marianna and she had a concern about that and so they discussed that concern at the meeting because the special education teacher wanted to make sure marianna was protected from these girls who are we call the mean girls perhaps because well i'm basing it on the facts and again i go back to the timeline though that's why i'm so what you're saying and i think we're saying the same thing when make sure it's your position is that even if the mother did tell her board before then that there was reason to worry about this young man it wasn't negligence for them not to take further action on it because her her concerns were wrong because she had the wrong timeline i'm sorry i am having a problem because it's all factual could you please her it's all factors so i'm trying to work it through and say what you've told me so let's let's take a very different case a mother goes to the school board and says a young man in my daughter's class is been making sexual advances toward her i want you to make sure this doesn't occur again in the future and the board does nothing about it and then something bad occurs you'd agree that there would be evidence of negligence i agree ok but they would have had at brett somebody would have been notified that ok so now we have a case in which you say well the mother says she says that but nobody else remembers and as to that i say that's those are the kinds of credibility issues that we asked juries to resolve the next thing you say as well when she said it it couldn't have been true because these folks have been left along with each other previous that point so is here saying that that was groping incident actually occurred in december we're saying that there was no groping incident but the only time it could have occurred would have been december fourth and why do you say that's the only time have occurred because everybody testified that this alleged groping incident occurred when the students went off campus to buy new roles that is that what the mother says she says it occurred when they went off campus she admitted that couldn't have said another because it hadn't happened yet that's correct and he could have said it in november it hadn't happened that is correct and so there's evidence in the record that shows his line well we're misremembering misremembering confused about dates whatever but and that was one of the points that well but then i asked you whether other employees involved two state employees well who could have been the basis of the jury's finding that they would liable the ones that were mentioned in the judge's order would have been the dean of students and he had he had no notice of anything the other was jerry martin she was a vice principal she attended the i e p meeting but otherwise she had no further connection with them and then i think one or two of at same time because they didn't go to the same bathroom so they this the teacher and the teacher states were not on notice they didn't know that he was that rust and would have gone to that same restroom because he'd never used to be force far as they knew so they had no notice of that that was a surprise to them when they found out he had gone there or and and the teacher because marianna had gone they they are going to tell students they can't go to the restroom and well it's the two vice principals yes all right now getting back you just heard his point you do agree that maybe at least in some limited circumstances the state can be as affirming the jury trials verdict the jury's verdict for the following reasons let me start with the argument that was made by the state counsel the liability issue starts and ends with the fact that link quest knew about the prior incident the proprietor groping incident on campus after they went off campus and came back she admitted that in her deposition testimony she admitted that in her cross examination by us in the plaintiff's case in chief she admitted that you know two five two statement to the police in which she said something like this happened six months  state can't be held liable because of her negligence i'm sorry can say that your state can't be held liable because of her negligence as her employer we take the position that the state can't be held liable for the five percent of the jury found that link with ok before but that's not the question just case your honor right ok so we agree so now so so so now you've got so you don't win because she was found liable because she was found negligent why do you when that because of the negligent acts of the other members of the administration including jury martin but first as awful sofa joy and a camera two and a camera and  mean you say five people acted with five people were negligent here i'm going to sue one of them in the jury says wise to her no malice what do you have to show the other for all we have to show is that they were negligent in only with respect to conditional privilege conditional privilege is available to an employee that's being sued if evidence shows that they act willfully like you know if you're not being sued for just come into effect correct that you're that's our position now that's a separate issue from the other one we've talked about so help us with the record there seems to be some conflict between you and your colleague about who knew what when it's seems to seems to me there's evidence in the record i don't think anybody disputes that that your client the mother said she went to and i put said some things to people about a previous groping incident is what evidence is  there and i think your colleague says but she also admitted it couldn't have happened at the time that she told people about it now you say link which says it happened six months before tell us what the record was the evidence in the record one way or the other on this evidence in the record is number one link with herself testified in our case in chief during cross examination that she recalls discussing the prior groping incident with mrs upon investigation the state officials could have determined it couldn't have happened because the instant she was describing was a trip off campus together it didn't happen until december would that make any difference in your analysis of the case i don't think so you honor it's first of all i don't think there was an investigation of what happened of when the groping incident happened i think they're there their position about the groping incident happening in december was based on purely on the mother's prior testimony our position is that there was some confusion as to the actual time of the occurrence but that's cleared up by the fact that she later remember that it was in november she brought it up in november entire team which consisted of muslim quest jury martin and i believe one of the teacher's aides either vice principal jerry martin was there jerry martin was there yes and  that the vice principal had noticed over prior groping is right yes but now you know what the vice principal is reaction was to gain that knowledge is there anything in the record about that there's nothing in the record there's no evidence that the vice principal took any action based on that notice and didn't issue any directives to provide a one to one supervision for both kids the mother's request for want to one supervision was denied at that i mean she continue the fight for the for the one to one supervision throughout but it wasn't until after the april eighteenth two thousand and thirteen incident that the school all of a sudden said ok i'll give you one to one the other point i want to emphasize which i mentioned about five minutes ago and i see that i find this left is that in this link quest acknowledged in her testimony at trial that she wrote in a written statement to the police on the day of the incident she wrote that she recalled that something similar had happened between these two kids six months before she wrote that on april eighteenth two thousand and thirteen if we go six months back that puts it back in november of two thousand and twelve so that's another piece and that's why i was asking the question for she did she have first hand knowledge of that or was it chilly recall because the mother had told her in her two five to see the way she wrote that statement it sounded it seemed like she had independent knowledge of that it didn't say where she got that information from she didn't say she got it from the mother all she said was i remember something similar had happened six months before six months before april of two thousand and thirteen pushes back in november of two thousand and twelve or right now it's spite of the fact that the record shows she had no knowledge of the prior incident the jury still found that ms link wish did not act with malice right so how would the fact that other state employees might have had the same the law of conditional privilege only applies to the employee who is being sued if an employee is not being sued the standard of proof is not willful act if you have not sued micheline coursed and are you saying that the state could be held liable for her negligence yes here's how i understand why kluge recklessness you can get responders period because you've shown mouse and other words that automatically means of the state is liable because you found malice by the employee but that doesn't necessarily mean you cannot file a liability against the state in the absence of malice it only means that if you found malice you get an automatic you have not found malice you can find negligence on the part of the the state of hawaii is that any claim of negligence against a state agency or city agency will survive if you prove that the their agents were employees representatives acted with negligence but as soon as you sue one of the employees individually they are entitled to a qualified immunity and that kicks it up to a proof of but there's something else here that's is the one layer on top of this that makes it complicated seems to me you both agree that when the employee is found to have acted within the conditional privilege which is to say not maliciously liability cannot be imposed on the state as a matter of respondeat superior right  trying to make sure that my understanding of why law is correct and so is that a correct statement and number to the extent that it may not be your case is valid liable five percent style five percent live you know libel so that five percent cannot be it stinks not liable for that five percent that's our position then the state be found ninety five percent liable because of her non malicious negligent  i believe so if if we because we take the position but we were not basing our our our verdict i understand that and i meant no i'm not i mean i understand it you may or may not it may or may not you if you put two minutes on the clock to start to see what happens i want to back to something that my colleague said about miss linguistic knowledge in her testimony at trial that something similar had happened to these kids about six months ago and that was in her police statement which is called the to five to she was asked about that and she said that it wasn't a similar incident what had happened was and it was around the time that the kids had gone off campus somebody and she doesn't remember who whether it was a security guard or another student or whatever told her that they had seen marianna and ruston together and there was something that miss link was thought was inappropriate whether it was holding hands or they had their arms around each other or something similar to that and whistling quest felt that it was inappropriate because these are two special education students and she always told her students you don't show any affection to each other use you be friends and that was what her concern was her concern was in that instance not that it was a groping incident because she did deny that she knew that there were any groping incidents so i just wanted to make that clear that was miss linguist testimony at trial she's very clear on that  d she said that there was evidence in the record that the vice principal knew of a prior groping incident i don't know if he was referring to mr sheen mana or miss martin but neither one of them indicated that there was any that they had any  and i want to go back to address one one matter that if if there is a mouse of an employee then is the state automatically liable i don't think you could make a general ai statement such as that because if an employee acts with malice then you have to analyze whether they were acting within the course and scope of their employment because if they are not clearly the state no employer could be felt held liable for that so i did want to mention that but what i was after i'm trying to because it would depend again i think on with the person who acted with malice was in the course and scope i mean if you can act with malice and be in the course and scope then yes i would agree there would be a lot of i mean let me phrase question two and i thought i thought i understood the answer and i'm not sure i did let's assume you have a state employee acting within the scope of her employment who is not a defendant in the case who acts without malice