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### IN THE SUPREME COURT OF THE STATE OF HAWAI ‘ I
---oOo---

________________________________________________________________ STACEY COSTALES, Respondent/Plaintiff-Appellant/Cross-Appellee,

vs. SCOTT ROSETE, in his official and individual capacity, Petitioner/Defendant-Appellee/Cross-Appellant, and MELVIN ANDO, in his official and individual capacity; GLENN YOSHIMOTO, in his official and individual capacity; STATE OF HAWAI ‘ I; DEPARTMENT OF HUMAN SERVICES;

OFFICE OF YOUTH SERVICES, Petitioners/Defendants-Appellees/Cross-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants.

________________________________________________________________ SCWC-30683 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30683; CIV. NO. 07-1-2360) Electronically Filed Supreme Court SCWC-30683 17-MAR-2014 02:56 PM*** FOR PUBLICATION IN WE ST’S HAWAI ‘ I REPORTS AND PACIFI C REP ORTER ***


### MARCH 17, 2014 RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ. 1 

### AMENDED OPINION OF THE COURT BY McKENNA, J. I. Introduction In this appeal, a youth correctional officer (“YCO”) found liable for sexual assault against a ward seeks review of the ICA’s Judgment on Appeal, entered pursuant to its Memorandum Opinion, which remanded this case for a new trial limited to the issue of allocation of fault and damages, due to an irreconcilable conflict in the jury’s special verdict answers. Costales v. Rosete, No. 30683 (App. May 30, 2012) (mem.) at 21. The YCO seeks a completely new trial without limitation on the basis that he was prejudiced by the admission of evidence of his State co-defendants’ bad acts. He also seeks to preclude judgment against him in his individual capacity based upon Hawai ‘ i Revised Statutes (“HRS”) § 662-10 (1993)’s “judgment bar,” which states, “The judgment in an action [against the State under the State Tort Liability Act] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the State whose act or omission gave rise to the claim.”

Assoc iate Justi ce Ac oba, who h eard oral argum ent a nd si gned the o pinio n 1 filedon F ebrua ry 27 , 201 4, re tiredon F ebrua ry 28 , 201 4.



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### We hold that the ICA was correct in limiting the issues on re-trial to the allocation of fault and damages, but it should have further limited the damages issues to be re-tried to the measure of general and special damages each defendant should pay, with the jury properly instructed on when each defendant can be held liable in his individual (versus official) capacity. We also hold that in this case HRS § 662-10 does not bar contemporaneous judgments against the State and against Rosete in his individual capacity. We therefore vacate the ICA’s Judgment on Appeal, entered pursuant to its Memorandum Opinion, and affirm the circuit court’s order granting Rosete a new trial, with the issues limited on re-trial in a manner consistent with this opinion. II. Background A. Complaint and Answer On December 13, 2007, Plaintiff Stacey Costales filed her Complaint against Scott Rosete (a YCO at Hawai ‘ i Youth Correctional Facility, or “HYCF”), in his individual and official capacities, Melvin Ando (a former HYCF administrator), in his individual and official capacities, Glenn Yoshimoto (a former HYCF correction supervisor), in his individual and official capacities, the State of Hawai ‘ i, Department of Human Services (“DHS”), and the Office of Youth Services (“OYS”). Count One of the Complaint alleged Assault and Battery, as against Rosete.

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### Costales alleged that Rosete took her out of her cell and sexually assaulted her in 2002 while she was a minor ward detained at HYCF. Count Two of the Complaint alleged Negligence, as against the State, OYS, DHS, Yoshimoto, and Ando for failing to protect Costales from harm. Specifically, Costales alleged negligent hiring, supervision, and retention of Rosete; negligent failure to properly train the HYCF YCOs, including Rosete; negligent failure to properly and thoroughly investigate assaults and batteries committed by HYCF YCOs, including Rosete; negligent failure to adequately reprimand YCOs, including Rosete, to prevent them from harming other wards or from working at HYCF; negligent management of HYCF; and negligent and unreasonable failure to adopt and implement policies and procedures to supervise and care for wards detained at HYCF in order to prevent assaults and batteries against wards. Costales alleged that Ando and Yoshimoto were not protected by qualified immunity because these defendants acted with malice and/or for an improper purpose. Costales further alleged that these defendants endorsed a pattern or practice of conduct that created an unreasonably dangerous condition at HYCF. Count Three of the Complaint alleged Intentional and Negligent Infliction of Emotional Distress by each of the defendants. Count Four of the Complaint sought punitive damages

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### against Rosete, Ando, and Yoshimoto. Costales prayed for general, compensatory, and special damages in an amount to be proven at trial; punitive damages; pre- and post-judgment interest; and such other and further relief as the court deemed just and equitable. Rosete then filed his Answer to Plaintiff’s Complaint, denying the allegations contained in the First, Second, and Third Claims. He also raised HRS § 662-10 as a defense, arguing that Costales was barred “from obtaining judgment against both the State of Hawai ‘ i (including any State agency, employee, or official, in an official capacity) and Defendant Rosete.” B. Trial Rosete, in his individual capacity, was tried along with the rest of the defendants. Rosete, in his individual capacity, was tried by a jury. The jury was advisory as to the remaining defendants.

1. Testimony of Former Wards At trial, Costales called as witnesses three former wards who were residing at HYCF at the time of the alleged assault. Each testified that Rosete was physically and verbally abusive. One ward testified that Rosete had discussed sex with her and sexually touched her as well. The former wards testified that the other YCOs saw Rosete’s behavior but did nothing about it. They also testified that they did not report Rosete because they

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### were scared of him, and Rosete would boast that nothing would happen to him if they reported him anyway. The former wards also testified that for months, Rosete and another YCO would bring out certain girls (including Costales) at night, paper over the windows to the girls’ dorm so the other wards would not see what was happening, give the girls food and cigarettes, receive massages, and sleep while the girls punched their time cards. Regarding whether Rosete allegedly sexually assaulted Costales, one former ward testified that Costales had returned from being taken out one night and was “crying and said she was scared, she didn’t know what to do.” The former ward testified that Costales told her Rosete “had sex. He put it in two times and then pulled out.” Another former ward testified that on the night of the alleged sexual assault, Costales looked scared and begged her to stay up all night with her, telling her in incomplete sentences only such information as, “[Rosete] took me to [an isolation room]. There was a mattress.” Costales stopped short of full disclosure to this former ward.

2. Testimony of Carl Imakyure Costales also called Carl Imakyure, a Children and Youth Specialist V with the Office of Youth Services, a division within the State of Hawaii’s Department of Human Services. He testified that late 2004 or early 2005, he was asked to conduct a “systems

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### investigation into HYCF,” in other words, to look at “regular patterns of behavior pertaining . . . to programs, staff training, any incidents of neglect or abuse, anything that would seem to be consistent over at the HYCF,” with a focus on Yoshimoto’s contribution to the institutional culture. The relevant time frame for Imakyure’s systems investigation was from 2000 or 2001 up to 2003 or 2004, but he looked at data from 1999 to 2003. Imakyure’s report concluded that there was a “lack of training” at HYCF, that Yoshimoto had a difficult time disciplining the staff such that “there was a continuing pattern of abuse by staff by particular YCOs,” and that “the YCOs did not have the kind of close oversight and supervision needed at that time to ensure the safety and the care of these youths.” Imakyure testified that he concluded in his report that Yoshimoto was grossly negligent. He also acknowledged that his report questioned whether Yoshimoto possessed compassion for the youth at HYCF. Imakyure testified that he did not recall coming across any information in his investigation concerning Rosete. The record does not reflect that Rosete requested a limiting instruction during Imakyure’s testimony (or during the final charge to the jury).

3. Testimony of Harold Fitchett

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### Costales called Harold Fitchett, an investigator with the Attorney General’s office, whom Ando asked to investigate Rosete’s rumored sex assault of Costales. Fitchett tape-recorded his interview with Costales, which took place on June 7, 2002. On the recording, Costales explained that Rosete committed misconduct of a sexual nature “four or five times” in January or February 2002, shortly before she was released from HYCF. Costales stated that Rosete and another YCO would remove her and another ward from their dormitory during the first shift, and the two girls would punch the time clock for the YCOs. She stated that the first time Rosete sexually assaulted her, she was lying on a couch in the staff area, Rosete laid next to her, and “was fingering [her] on top of the [couch]” and “pulling [her] pants and doing whatever to [her].” She stated that Rosete told her to be quiet and that she was scared, so she did not say anything. Costales stated that Rosete also “fondl[ed her] breast and stuff . . . with his hands.” Costales stated that, although she was not physically hurt, she was scared because Rosete had beaten up other wards in the past. Costales stated that the second incident of sexual assault happened two or three days after the first and was similar to the first. Costales stated that the third incident consisted of “nothing physical,” but “sexual comments.” Rosete told her he “want[ed] to fuck [her] brains out,” and that they “look[ed]

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### sexy.” Costales stated that, by the time the fourth incident came around, she was “just fucken losing it” because she was scared of Rosete and what would happen next. She stated that Rosete came into her cell that night, “laid on [her] bed with [her] and covered [her] mouth. And he was just, like, kissing [her] neck, kissing [her] ear.” Costales said she started crying and asking Rosete why he was doing this to her, and Rosete covered her mouth and told her to “shut up.” At that point, a timer bell went off, and Rosete left Costales’ cell to punch the clock. When he returned, he removed Costales from her cell and took her to an isolation room in the back of the dorm. Costales stated that Rosete “laid [her] down on the mattress in the back of the dorms and he was fingering [her] once again, um, just kissing [her] . . . doing things with [her]. . . And then he tried to shove his [penis] in [her]. . . . . And when he shoved it in, he shoved it in.” Rosete stopped because he heard a noise and went to check on it. In the meantime, Costales returned to her cell, washed herself off, and another ward asked her what happened. When Rosete returned, he called her a “fucken[] bitch” and stated that she “ruined it all” because he “wanted to do things to [her].” Costales also told Fitchett that another YCO had sexually assaulted one ward and physically assaulted other wards, including Costales. Fitchett further testified that he was

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### directed by the union representing the HYCF YCOs to destroy all the records of his investigations into the abuses at HYCF.

4. Testimony of Linda Hadley Costales called Linda Hadley, a former nurse and administrator at HYCF. She testified that she told a senate committee about “[v]erbal abuse, physical abuse. . .[,] sexual abuse,” and the “lack of concern by administration to provide the safety that was needed for the kids” at HYCF. Hadley testified to the lack of training or supervision of the YCOs. Hadley was familiar with Rosete and characterized him as a “very authoritative person” who “[l]ike[d] to have control over the kids.” Hadley did not know that Costales had been assaulted. The record does not reflect that Rosete requested a limiting instruction at the time of Hadley’s testimony (or during the final charge to the jury).

5. Testimony of Lia Olione Lia Olione, an HYCF YCO, had his deposition testimony read into evidence after he invoked his Fifth Amendment right against self-incrimination and was declared unavailable. The circuitcourt allowed portions of his deposition in another HYCF guardon-ward sexual assault case to be read to the jury as relevant 2 

### to the other defendants’ notice, over Rosete’s objection that the

That depos ition test imonywas not t ransc ribedby t he co urt r eport er, 2 even thoug h thi s cou rt re quire d suc h tra nscri ption in R oxas v. Ma rcos, 89 Hawai ‘ i 91, 100 n.2, 969 P .2d 1 209, 1218 n.2 ( 1998)
.



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### testimony violated Hawai # i Rules of Evidence (“HRE”) Rules 401, 402, 403, 404, 602, and 802, and that he was not noticed for the deposition. Relevant to Rosete’s appeal, Olione testified to the following:

-- He rece ived no tr ainin g, in cludi ng ho w to deal with

adole scent s, wh en he was hiredby H YCF. -- H e didnot belie ve he and the o ther YCOs were adequ ately super visedby t heir immed iate super iors or byAndo and Yoshi moto. -- He slep t on the j ob be cause “[n] obodychec k[ed] on [him] .” -- He opin ed, “ I don ’t th ink a nybod y che cks o n any body in that facil ity.” He opine d tha t “[e ]very body was d oing as they see f it,” inclu ding super visor s. -- A femal e war d tol d himthat YCOs were havi ng se x wit h femal e war ds. Altho ugh h e kne w suc h con tact was p rohib ited, he di d not repo rt it to A ndo o r Yos himot o bec ause “[t]h e whole faci lity was o ut of cont rol .
. . Nobod y was doin g anyth ing.” -- He agre ed th at YC Os ve rball y abu sed t he wa rds a nd th at this abuse went unre porte d to Ando or Yo shimo to. -- Ab usive YCOs were allo wed t o kee p the ir po sitio ns an d conti nue t heir verba lly, physi cally , and /or s exual ly ab usive behav ior
. -- He agre ed th at th e YCO s -— not t he HY CF adminis trati on –- were in co ntrol and that the r esult ing a tmosp here was o ne of despe ratio n andterr or fo r the ward s. -- Th ere w as a “lackof d iscip line
. . . almo st to the point where we [ YCOs] [we] re en coura ged t o do wrong sinc e the re [wa]s no d iscip line, and no cl ose s uperv ision
. . . .” 

### 6. Testimony of Glenn Yoshimoto Costales called Glenn Yoshimoto, who testified that a YCO accused of sexually harassing a ward continued to work at HYCF “until he went to prison.” Because the parties acknowledged that Yoshimoto opened the door regarding YCO Lia Olione’s conviction 3 

### for sexual assault, the parties agreed with the circuit court to

Evide nce o f oth er la wsuit s aga inst the S tate, part icula rly R uiz v . Sta te 3 of Ha waii, et a l., C ivil No. 0 4-1-1 739-0 9 (KS SA), which aros e fro m a 2 003 alleg ed se x ass ault of a ward by Ol ione, had been previ ouslyexcl uded by an order gran ting in pa rt an d den ying in pa rt on e of the S tate’ s mot ions in limin e.



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### stipulate to the fact of conviction. The stipulation read to the jury was as follows: The p artie s in this case throu gh th eir l awyer s hav e stipu latedto c ertai n fac ts an d you must cons ider those facts as h aving been conc lusiv ely p roved
. The f acts that they have stipu latedto a re th at Mr . Olion e was foun d gui lty o f andstat ed th e fol lowin g:

On Ju ne 15 , 200 3, wh ile e mploy ed at a State corr ectio nal f acili ty I had s exual inter cours e and inser ted m y fin ger i nto t he vagin a of SM . . . a n inm ate/w ard o f the corre ction al fa cilit y. I als o tou ched the b reast s of inmat e[/]w ard S M a p erson less than 16 b ut at least four teen who w as mo re th an fi ve ye ars young er th an my self and t o who m I w as no t marri ed. In Ju ne 20 03 I reckl esslythre atene d SM by word or co nduct on m ore t han o ne oc casio n for the s ame p urpos e. 

### In fact, Rosete wanted the jury to know that it was Olione who was convicted of sex assault, lest the jury believe that the incident involved Rosete. Rosete did not request a limiting instruction at the time of the stipulation, and the record does not reflect that he requested a limiting instruction as part of the jury’s final charge. When Yoshimoto’s testimony resumed, Plaintiff’s counselquestioned him about the destruction of ward complaints; YCO-onward verbal, physical, and sexual abuse; and Costales’ own grievances about being beaten by another YCO (not Rosete) and being placed in isolation with insufficient food and sleep time. Yoshimoto alternately denied the incidents happened, denied knowledge or recollection of these incidents, disclaimedresponsibility for those incidents that occurred while sub12*** FOR PUBLICATION IN WE ST’S HAWAI ‘ I REPORTS AND PACIFI C REP ORTER *** 

### contractors ran the HYCF school, justified the incidents as reasonable use of force, or asserted that verbal abuse at HYCF was too pervasive to reduce or eliminate. Rosete did not request a limiting instruction at the time of Yoshimoto’s testimony, and the record does not reflect that he requested a limiting instruction as part of the jury’s final charge.

7. Testimony of Scott Rosete Costales also called Rosete, then a YCO supervisor on paid leave from HYCF, to testify. His testimony regarding the time period of the alleged sexual assaults follows:

Q [byCost ales’ coun sel]: Didyou ever take [Cost ales] out of he r dor m at night ? A [byRose te]: I’m sure I did
. Q: D id yo u eve r tak e anyothe r gir ls ou t of their dorm s at night ? A: Y es, I have
. Q: A nd, d uring thos e tim es di d you allo w the m to punch the clock ? A: N o, ma ’am. Q: D uring the night s whe n you took[Cos tales ] out of h er room, you allow ed he r to watch TV, right ? A: M y ans wer w ould be ye s, bu t, I wouldhave to e xplai n mysel f tho ugh. When we t ake t hem o ut, t he T. V.’s alrea dy on becau se th at’s what we’re doin g, we ’re w atchi ng TV . An d, -- and, we’d be ta king out w ards for n umero us re asons . If they come out – - out of t he do rm, t hey’r e in the l iving roomarea where the T.V’s at I ’m su re th at th ey wo uld b e wat ching
. Q: A nd, y ou do this duri ng th e tim e whe n the y’re suppo sed to be lock ed up and in th eir d orm a nd sl eepin g, ri ght? A: Y es, m a’am. Q: A nd, y ou wo uld g ive h er ca ndies and cigar ettes duri ng these nigh ts; i sn’t that corre ct? A: T hat’s not true. Q: A nd yo u wou ld ma ke he r mas sage your feet durin g the se night s; is that corr ect? A: T hat i s not corr ect. Q: A nd, d id yo u not talkdirt y to her d uring thes e nig hts? A: T hat i s abs olute ly no t tru e. Q: D id yo u not tell her that she w as se xy? A: N o. Q: D id yo u eve r –- did y ou no t tel l her that you wante d to fuck her b rains out. A: I did not.



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Q: A nd, d id yo u not touc h her in a sexu al wa y? A: N o, ma ’am. Q: D id yo u sex uallyassa ult[] Stac ey Co stale s wit h you r finge rs? A: N o. Q: D id yo u sex uallyassa ult[] her with your penis ? A: N egati ve. 

### 8. Testimony of Stacey Costales Costales also took the stand. She testified that wards feared Rosete because he had physically abused her and other wards. She testified that she and other wards did not report the physical abuse because nothing would have been done about it. She testified that Rosete would boast that all he would get was a “slap on the wrist” if any of the wards reported his behavior. Costales also testified that Rosete called the wards “bitches” and “sluts.” He would often humiliate the wards by making them wear “I’m stupid” signs and by making them bark like dogs for their food. She testified that she began to trust Rosete after he started counseling her and taking her out of her dorm at night to give her candy, Zippy’s food, and cigarettes. She testified that she punched the time clock for Rosete, massaged his feet, made toast for him, and grabbed mattresses from the isolation rooms for him. She testified that after Rosete befriended her, he “started doing things to [her],” including touching her breasts and vagina twice, before having sexual intercourse with her. He also told Costales she was “sexy” and that he “want[ed] to fuck

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### [her] brains out.” She elaborated that the night Rosete had sex with her, he had asked her to bring him a mattress from an isolation room; when Costales was in the isolation room, Rosete followed her and pushed her onto the mattress, “got on top of [her], pulled [her] clothes off and put himself inside of [her].” He stopped because he heard something and went to check it out.

9. Testimony of Susan Thain Portions of the deposition testimony of retired HYCF teacher Susan Thain were read to the jury after Thain was declared unavailable. Thain testified that she was not aware that Costales was sexually assaulted, but she testified that she knew two other wards were raped. She testified that other YCOs were having what she surmised to be a sexual relationship with another ward, based on the ward’s statements to her. That same ward was also talked into stripping down by another YCO, who told her he wanted to use her as a clothing model. Thain testified that, in general the YCOs would often “swat [a] girl on the butt” or make passing comments she considered inappropriate. Thain testified that she witnessed YCOs physically beating the wards, once to the point where a ward became unconscious. She testified that when she reported the abuse, the YCOs would harass and threaten her, and she believed her car was vandalized by one of them.

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### C. Jury Instructions, Special Verdict Form, Findings of Fact and Conclusions of Law, and Final Judgment Relevant to this appeal, the only instruction on the difference between official and individual capacity was the following:

If a State empl oyee is fo und l iable in h is of ficia l

capac ity, then the S tate is re spons ible. If a State empl oyee is fo und l iable in h is in divid ual capac ity, then that State empl oyee is pe rsona lly respo nsibl e. 

### Also relevant to this appeal , the circuit court charged the jury with the following instructions concerning separating each defendant’s rights:
Simil arly, each defe ndant in t his c ase h as se parat e and d istin ct ri ghts. You must deci de th e cas e of each defen dant separ ately , as if it were a se parat e law suit. Unles s I t ell y ou ot herwi se, t hese instr uctio ns ap ply t o all the d efend ants. 

### The jury entered its answers on the special verdict form as follows: QUESTION NO . 1: Did S cott Roset e sex uallyassa ult P laint iff S tacey Costa les? Yes _ X_ (1 2) No __

_ If yo u ans wered“Yes ”, pr oceedto Q uesti on No . 2. If y ou answe red “ No”, proce ed to the end o f thi s for m, da te an d sign it, a nd th en ca ll th e Bai liff. QUESTION NO . 2:
Was S cott Roset e’s s exual assa ult a lega l cau se of Plain tiff Stace y Cos tales ’ inj ury?

Yes _ X_ (1 2) No __

_ If yo u ans wered“Yes ”, pr oceedto Q uesti on No . 3. If y ou answe red “ No”, proce ed to the end o f his [sic ] for m, da te and s ign i t, an d the n cal l the Bail iff.



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QUESTION NO . 3: Befor e Dec ember 12, 2005, did Stace y Cos tales disco ver, or re asona bly s houldhave disc overe d, th at sh e was psych ologi callyor e motio nallyinju red b y Def endan t Ros ete’s sexua l ass aults ?

Yes _

__ No _X _ (12 ) If yo u ans wered“Yes ”, pr oceedto t he en d of this form, date and s ign i t, an d the n cal l the Bail iff. If y ou an swere d “No”, proc eed t o Que stion No. 4 QUESTION NO . 4:
Was M elvin Ando negl igent ? Yes _ X_ (1 2) No __

_ If yo u ans wered“Yes ”, pr oceedto Q uesti on No . 5. If y ou answe red “ No”, proce ed to Ques tion No. 6
. QUESTION NO . 5:
Was t he ne glige nce o f Mel vin A ndo a lega l cau se of Plain tiff Stace y Cos tales ’ inj ury?

Yes _ X_ (1 2) No __

_ Proce ed to Ques tion No. 6
. QUESTION NO . 6:
Was G lenn Yoshi moto negli gent? Yes _ X_ (1 2) No __

_ If yo u ans wered“Yes ”, pr oceedto Q uesti on No . 7. If y ou answe red “ No”, proce ed to Ques tion No. 8
.
QUESTION NO . 7:
Was t he ne glige nce o f Gle nn Yo shimo to a legal caus e of Plain tiff Stace y Cos tales ’ inj ury?

Yes _ X_ (1 2) No __

_ Proce ed to Ques tion No. 8
. QUESTION NO . 8:
Was t he St ate o f Haw aii ( or an y of its a genci es inclu ding the D epart ment of Hu man S ervic es an d/or the O ffice of Yo uth S ervic es) n eglig ent?

Yes _ X_ (1 2) No __

_



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If yo u ans wered“Yes ”, pr oceedto Q uesti on No . 9. If y ou answe red “ No”, proce ed to Ques tion No. 1 0. QUESTION NO . 9:
Was t he ne glige nce o f the Stat e of Hawai i (or any of its a genci es in cludi ng th e Dep artme nt of Huma n Ser vices and/o r the Offi ce of Yout h Ser vices ), a legal caus e of Plain tiff Stace y Cos tales ’ inj ury?

Yes _ X_ (1 2) No __

_ Proce ed to Ques tion No. 1 0. QUESTION NO . 10: If yo u hav e fou nd on e or more of th e par ties above at fault , andthat its or hi s act ions were a leg al ca use o f Plain tiff Stace y Cos tales ’ inj ury, for e ach p arty, ente r the perce ntage of f ault you a ttrib ute t o tha t par ty. Pleas e note that the t otal of th e per centa ges m ust e qual 100%.
Scott Rose te 62% Melvi n And o 9% Glenn Yosh imoto 15% State of H awaii (Depa rtmen t of Human Serv ices and/o r the Offi ce of Yo uth S ervic es) 1 4% TOTAL 100% QUESTION NO . 11 – (Sp ecial Dama ges) Witho ut re gard to an y pos sible appo rtion ment of he r damag es, w hat i s the tota l amo unt o f Pla intif f Sta cey Costa les’ speci al da mages ? 1) Sc ott R osete Offic ial C apaci ty $_

_________ Indiv idual Capa city $67,0 00 (1 2) 2) Me lvin Ando Offic ial C apaci ty $_

_________ Indiv idual Capa city $____

______ 3) Gl enn Y oshim oto Offic ial C apaci ty $_

_________ Indiv idual Capa city $____

______ 4) St ate o f Haw aii $____

______ (Depa rtmen t of Human Serv ices and/o r The O ffice of Y outh Servi ces) TOTAL $67,0 00 QUEST ION NO. 12 – (G enera l Damages) Witho ut re gard to an y pos sible appo intme nt [s ic] o f her d amage s, wh at is the total amou nt of Plai ntiff Stac ey Costa les’ gener al da mages ?



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1) Sc ott R osete Offic ial C apaci ty $200, 000 ( 12) Indiv idual Capa city $200, 000 ( 12) 2) Me lvin Ando Offic ial C apaci ty $100, 000 ( 12) Indiv idual Capa city $50,0 00 (1 2) 3) Gl enn Y oshim oto Offic ial C apaci ty $150, 000 ( 11) Indiv idual Capa city $150, 000 ( 11) 4) St ate o f Haw aii $300, 000 ( 12) (Depa rtmen t of Human Servi ces a nd/or the Offic e Of Yo uth S ervic es) TOTAL $1,15 0,000 QUEST ION NO. 13 : What perce ntage of P laint iff S taceyCost ales’ dama ges, if an y, is attr ibuta ble t o anyof t he fo llowi ng: a. P re-ex istin g Inj ury/C ondit ion ___% b. J anuar y/Feb ruary2002 Inci dents 75% c. S ubseq uent injur y/con ditio n 25% TOTAL (Not e: Th e tot al mu st eq ual 1 00%) 100% QUEST ION N o. [1 4] – (Puni tive Damag es) What is th e tot al am ount of an y pun itive dama ges t hat Plain tiff Stace y Cos tales shou ld re ceive fromeach Defen dant?
Scott Rose te $3 00,00 0 Melvi n And o $__

_____ Glenn Yosh imoto $___

____ TOTAL $300 ,000 

### The jury’s answers closely tracked Costales’ request for damages in her closing argument: “For Mr. Rosete, we’re asking $600,000. $300,000 for compensation, $300,000 for punitive damages. . . . The State? $300,000. Mr. Ando? $300,000. Mr. Yoshimoto? Same. Because they’re equally responsible. . . . And for future care and psychotherapy, $67,000. This is the total of one million five sixty-seven.” In closing, Costales also asserted that 75% of her depression resulted from Rosete’s sexual assault. The circuit court filed its Findings of Fact and Conclusions

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### of Law, which adopted the jury’s special verdict findings as to Rosete, in his individual capacity, and adopted the advisory jury’s special verdict findings as to the remaining defendants. The circuit court entered final judgment as follows:

With respe ct to Clai m I o f Pla intif f’s C ompla int, relat ing t o Pla intif f’s c laim of as sault and batte ry ag ainst Defen dant Scott Rose te, J udgme nt is here by en teredin f avor of Pl ainti ff St acey Costa les a nd ag ainst Defe ndant Scot t Roset e. With respe ct to Clai m II of Pl ainti ff’s Compl aint, relat ing t o Pla intif f’s c laim of ne glige nce, Judgm ent i s hereb y ent ered in fa vor o f Pla intif f Sta cey C ostal es an d again st De fenda nts S tate of Ha waii, Offi ce of Yout h Servi ces, Depar tment of H uman Servi ces, Melvi n And o and Glenn Yosh imoto
. With respe ct to Clai m III of P laint iff’s Comp laint , relat ing t o Pla intif f’s c laim of in tenti onal and n eglig ent infli ction of e motio nal d istre ss, J udgme nt is here by en tered in fa vor o f Pla intif f Sta cey C ostal es an d aga inst Defen dants Scott Rose te, S tate of Ha waii, Offi ce of Yout h Ser vices , Depar tment of H uman Servi ces, Melvi n And o andGlen n Yoshi moto. With respe ct to Clai m IV of Pl ainti ff’s Compl aint, relat ing t o Pla intif f’s c laim for p uniti ve da mages , Jud gment is he reby enter ed in favo r of Plain tiff Stace y Cos tales and again st De fenda nt Sc ott R osete in t he am ount of $3 00,00 0.00. Witho ut re gard to an y app ortio nment , Pla intif f Stace y[] C ostal es’ s pecia l dam ages are $ 67,00 0 andher gener al da mages are $1,15 0,000 .00. Witho ut re gard to an y app ortio nment , Pla intif f’s t otal speci al, g enera l andpuni tive damag es ar e $1, 517,0 00,00 0. [sic] Apply ing t he 25 % app ortio nment for Plain tiff’ s subse quent inju ry/co nditi on, P laint iff S taceyCost ales’ combi ned s pecia l andgene ral d amage s are $912 ,750. 00. Pursu ant t o the Cour t’s F ebrua ry 9, 2010 Orde r Grant ing i n Par t andDeny ing i n Par t Pla intif f’s M otion for Taxat ion o f Cos ts an d Pre -Judg ment Inter est, Plain tiff Stace y Cos tales is e ntitl ed to cost s in the a mount of $12,4 38.27 agai nst D efend ants, exce pt $1 ,993. 19 of whic h is not t axabl e aga inst Defen dant Scott Rose te in his indiv idual capac ity; Plain tiff is no t ent itledto p re-ju dgmen t inter est. Judgm ent i n Pla intif f Sta cey C ostal es’ f avor, and again st al l Def endan ts, i s her eby e ntere d in the t otal amoun t of $1,22 5,188 .27. All r emain ing p artie s or issue s to this case are dismi ssed.



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### D. Post-Trial Motions 4 

### Rosete moved for judgment as a matter of law or, alternatively, for a new trial. Rosete argued that the “torrent of evidence . . . with regard to alleged abuses by others” at HYCF should have been excluded as to Rosete as more prejudicial than probative. Rosete also argued that the special verdict form was inconsistent and confusing. Rosete then argued that Costales could not take judgment against both Rosete and the State, citing HRS § 662-10, which states, “The judgment in an action under this chapter shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the State whose act or omission gave rise to the claim.” The circuit court issued its Order Granting in Part and Denying in Part Defendant Rosete’s, in his Individual Capacity, Motion for Judgment as a Matter of Law and Alternative Motion for a New Trial. The motion was granted as to Rosete’s request for a new trial and denied as to his motion for judgment as a matter of law. The only basis for the new trial was the irreconcilable conflict in the jury’s answers to special verdict question numbers 10 and 12: “The court finds that an irreconcilable

Effec tive Janua ry 28 , 201 0, Ju dge M arks’ prev iousl y ass ignedcivi l cas es 4 were trans ferre d andreas signe d to Judge Rhon da Ni shimu ra. Judge Mark s presi ded o ver t he tr ial i n thi s cas e; Ju dge N ishim ura p resid ed ov er th e bul k of th e pos t-tri al mo tions in t his c ase.



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### conflict exists between the jury’s answers in the percentage allocation of fault amongst the defendants and the monetary damages allocated amongst the defendants.” Costales moved for reconsideration of the circuit court’s order. Costales included as “new evidence” declarations from nine jurors stating that they intended to award Costales the 5 

### dollar amounts assigned to all defendants in question number 12 of the special verdict and that the percentages of fault allocated in question number 10 did not control. Alternatively, Costales argued that if a new trial were unavoidable, the issues upon re-trial should be limited to the allocation of general damages among the defendants, as the defendants did not dispute that they were 100% at fault and that the total damages were $1,150,000.00. The circuit court denied Costales’ motion for reconsideration. 6 

### E. ICA Appeal This appeal reached the ICA on the circuit court’s order granting Costales’ Motion for Interlocutory Appeal of the order granting Rosete, in his individual capacity, a new trial, and the order denying her motion for reconsideration of that order.

Costa les l ater filedsimi lar d eclar ation s fro m two more juro rs. 5

The t rial court left it t o the appe llate cour ts to cons ider the j uror 6 decla ratio ns. The I CA co nclud ed (a nd we agre e) th at th e jur or de clara tions conce rned the j urors ’ int ent; there fore, the circu it co urt p roper ly de cline d to co nside r the decl arati ons b ecaus e the y wer e bar red u nder HRE R ule 6 06. Costa les, mem. op. a t 17- 18.



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### Rosete, in his individual capacity, filed a cross-appeal, raising as points of error the circuit court’s admission of the other defendants’ bad acts, the circuit court’s failure to grant Rosete a new trial on the additional basis of prejudice from these bad acts, and HRS § 662-10’s judgment bar. In Costales’ answering brief, she counter-argued, “The Trial Court was correct in admitting evidence of prior physical and sexual abuse of other HYCF wards by Defendants Rosete and other guards to show notice of a dangerous condition and opportunity.” Costales also argued that Rosete was not prejudiced by the admission of the other defendants’ bad acts because the evidence was overwhelming that Rosete sexually assaulted Costales. Further, she argued that Rosete waived his argument for failing to move for limiting instructions as to this evidence at trial.Lastly, as to Rosete’s HRS § 662-10 argument, Costales counterargued that there is no Hawai ‘ i case law interpreting the statute, but she cited Breed v. Shaner, 57 Haw. 656, 665, 562 P.2d 436, 442 (1977), for the general proposition that Hawai ‘ i’s STLA should be liberally construed to compensate victims for the negligent conduct of State employees. The ICA issued a Memorandum Opinion, remanding this case “for a new trial limited to the allocation of fault and damages among the defendants.” Costales, mem. op. at 21. The ICA concluded that the evidence of the other defendants’ bad acts was

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### admissible to show notice. Costales, mem. op. at 12. Further, the ICA concluded that Olione’s deposition testimony concerning his sexual assault of another ward was admissible once Yoshimoto opened the door. Costales, mem. op. at 13. Moreover, the ICA concluded that all of this evidence was not unfairly prejudicial to Rosete because the circuit court instructed the jury to consider evidence against each defendant separately. Costales, mem. op. at 13. The ICA also rejected Rosete’s argument that HRS § 662-10 precluded judgment against both him and the State. Costales, mem. op. at 15. It concluded, “Plainly read, the statute precludes subsequent claims on the same subject matter, but does not bar claims against multiple defendants.” Costales, mem. op. at 15 (citing Rodriguez v. Handy, 873 F.2d 814, 816 n.1 (5th Cir. 1989)). The single issue in which the ICA concluded that the circuit court erred was in ordering a new trial without a limitation on issues, because the defendants did not dispute that their combined fault was 100%, nor did they argue that the damage award was unreasonable. Costales, mem. op. at 18. The ICA concluded, “The circuit court ignored the supreme court’s conclusion in Dias [v. Vanek, 67 Haw. 114, 118, 679 P.2d 133, 136 (1984)] that the preferred remedy for such a verdict is a new trial limited to the issue of damages.” Costales, mem. op. at 20 (emphasis in

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### original). The ICA then remanded the case for a new trial “limited to the allocation of fault and damages among the defendants.” Costales, mem. op. at 21. III. Standards of Review A. Motion for New Trial

Both the g rant and t he de nial of a motio n for new trial [are] with in th e tri al co urt’s disc retio n, an d we will not rever se th at de cisio n abs ent a clea r abu se of disc retio n. An ab use o f dis creti on oc curs “wher e the tria l cou rt ha s clear ly ex ceede d the boun ds of reas on or disr egard ed ru les or pr incip les o f lawor p racti ce to the subst antia l detri ment of a partyliti gant. ” 

### State by Bronster v. U. S. Steel Corp., 82 Hawai ‘ i 32, 54, 919 P.2d 294, 316 (1996) (citations omitted). It is also within the appellate court’s discretion to limit the issues of a new trial upon remand. Miyamoto v. Lum, 104 Hawai ‘ i 1, 10, 84 P.3d 509, 518 (2004). B. Evidentiary Rulings [D]if feren t sta ndard s of revie w mus t be appli ed to tria l court deci sions rega rding the admis sibil ity o f evi dence , depen ding on th e req uirem ents of th e par ticul ar ru le of evide nce a t iss ue. When appli catio n of a par ticul ar evide ntiar y rul e can yiel d onl y one corr ect r esult , the prope r sta ndardfor appel late revie w is the r ight/ wrong stand ard. Wher e the evid entia ry ru ling at is sue c oncer ns admis sibil ity b ased upon relev ance, unde r [Ha wai # i Rul es of Evide nce ( HRE)] Rule s 401 and 402, the p roper stan dard of appel late revie w is the r ight/ wrong stan dard.
. . . Evide ntiar y dec ision s bas ed on HRE Rule 403, which requ ire a “judg ment call” on t he pa rt of the trial cour t, ar e rev iewed for a n abu se of disc retio n. 

### Tabieros v. Clark Equip. Co., 85 Hawai # i 336, 350-51, 944 P.2d 1279, 1293-94 (1997).

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### C. Statutory Construction Interpretation of a statute is a question of law, which this court reviews de novo. See Molinar v. Schweizer, 95 Hawai ‘ i 331, 334-35, 22 P.3d 978, 981-82 (2001) (citation omitted). IV. Discussion As a preliminary matter, the circuit court and ICA properly concluded that the special verdict form was defective. It is true that the trial court has “‘complete discretion’ over the type of verdict form” to use. Montalvo v. Lapez, 77 Hawai ‘ i 282, 292, 884 P.2d 345, 355 (1994) (citations omitted). “When . . . the trial court ‘require[s] a jury to return only a special verdict in the form of a special written finding upon each issue of fact,’ HRCP 49(a)[ ] compels the judge to ‘give to the jury 7 

### such explanation and instruction concerning the matter thus

Hawai ‘ i Rul es of Civi l Pro cedur e Rul e 49( a) (2 009) provi des: 7 Speci al ve rdict s. The cour t mayrequ ire a juryto r eturn

only a spe cial verdi ct in the form of a speci al wr itten findi ng up on ea ch is sue o f fac t. I n tha t eve nt th e cou rt may s ubmit to t he ju ry wr itten ques tions susc eptib le of categ orica l or other brie f ans wer o r maysubm it wr itten forms of t he se veral spec ial f indin gs wh ich m ight prope rly be ma de un der t he pl eadin gs an d evi dence ; or it ma y use such other meth od of subm ittin g the issu es an d req uirin g the writt en fi nding s the reon as it deem s mos t app ropri ate. The court shal l giv e to the j ury s uch e xplan ation and instr uctio n con cerni ng th e mat ter t hus s ubmit ted a s maybe neces sary to en able the j ury t o mak e its find ings upon each issue . If in s o doi ng th e cou rt om its a ny is sue o f fac t raise d by the p leadi ngs o r by the e viden ce, e ach p arty waive s the righ t to a tri al byjuryof t he is sue s o omi tted unles s bef ore t he ju ry re tires the partydema nds i ts submi ssion to t he ju ry. As to an i ssue omitt ed wi thout such deman d the cour t maymake a fi nding ; or, if i t fai ls to do so, i t sha ll be deem ed to have made a fi nding in a ccordwith the j udgme nt on the speci al ve rdict
.



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### submitted as may be necessary to enable the jury to make its findings upon each issue.’” Knodle v. Waikiki Gateway Hotel, 69 Haw. 376, 383, 742 P.2d 377, 382 (1987) (footnote modified). The questions on the special verdict form, however, “may be so defective that they constitute reversible error. In analyzing alleged errors in special verdict forms, the instructions and the interrogatories on the verdict form are considered as a whole.” Montalvo, 77 Hawai ‘ i at 292, 884 P.2d at 355 (citations omitted). In this case, the special verdict form and its accompanying jury instructions were defective. The jury instructions did not inform the jury as to the circumstances under which Rosete, Yoshimoto, and Ando would be liable in their individual versus official capacities for the general damage amounts the jury assigned in special verdict question number 12. Ordinarily, a public official is qualifiedly immune from liability. Medeiros v. Kondo, 55 Haw. 499, 505, 522 P.2d 1269, 1272 (1974). To defeat a public official’s claim of qualified immunity, the burden is on the plaintiff to adduce “clear and convincing proof that [the public official] defendant was motivated by malice and not by an otherwise proper purpose.” Id. “If it is determined that [the individual defendant] was acting within the scope of his employment as a public official, then he can be held liable for general, special, and punitive damages (1) if he maliciously exercised his official discretion, or (2) if he maliciously

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### committed a tort against plaintiffs. . . .” Kajiya v. Dep’t of Water Supply, 2 Haw. App. 221, 227, 629 P.2d 635, 640 (App. 1981) (citations and footnote omitted). “Unless the issue is removed from the case by uncontested affidavits and depositions, the existence or absence of malice is a question for the jury.” Kajiya, 2 Haw. App. at 227, 629 P.2d at 640. In this case, there was no jury instruction on malice or improper purpose; therefore, when the jury assigned damage amounts to Rosete, Ando, and Yoshimoto in their individual and official capacities in special verdict question number 12, it was not informed that Costales had to meet a higher burden of proof in order to hold the individual defendants personally liable for her damages. Second, the jury’s answers to special verdict question numbers 10 and 12 were irreconcilably in conflict. “A conflict in the answers to questions in a special verdict does not automatically warrant a new trial; a new trial will be ordered only if the conflict is irreconcilable.” Kalilikane v. McCravey, 69 Haw. 145, 152, 737 P.2d 862, 867 (1987) (citation omitted). Although the ICA has previously cited to Texas authority for the proposition that an irreconcilable conflict in a special verdict form exists when “one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant . . . necessarily requir[ing] the entry of

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### a judgment different from that which the court has entered,” we have also found an irreconcilable conflict in situations where there was no question that the judgment would be for the plaintiff. Compare Dunbar v. Thompson, 79 Hawai ‘ i 306, 312-13, 901 P.2d 1285, 1291-92 (App. 1995) (citing Vieau v. City & County of Honolulu, 3 Haw. App. 492, 499, 653 P.2d 1161, 1166 (1982) (citing Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex, 197, 206, 222 S.W.2d 985, 991 (1949))) with Ray v. Kapiolani Med. Specialists, 125 Hawai ‘ i 253, 261-62, 259 P.3d 569, 577-78 (2011) (observing that the jury’s answers to the special verdict form were irreconcilably in conflict based on the facts of the case, where the jury found that a doctor’s treatment of a plaintiff did not cause injury but found that the doctor’s failure to properly inform the plaintiff did). In this case, the special verdict form called upon the jury to assign damages in two ways: special verdict question number 10 asked the jury to assign percentages of fault for Costales’ injury among all the defendants, while special verdict question number 12 asked the jury to break down general damages owed to Costales by the State and by Rosete, Ando, and Yoshimoto. The jury answered question number 12 in a manner mathematically inconsistent with their answer to question number 10. The answers to these questions were irreconcilably in conflict. Like Ray, even though the judgment for plaintiff is not at issue, the

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### jury’s answers to special verdict question numbers 10 and 12 are irreconcilably in conflict because it is unclear what amount of general and special damages Rosete, Ando, and Yoshimoto owe to Costales, and in what capacity (individual or official). Therefore, a new trial is warranted. The next section discusses the issues to be determined upon re-trial.
A. New Trial Limited to the Allocation of Fault and Damages among the Defendants On certiorari, Rosete argues that the ICA erred in ordering
an entirely new trial limited to the allocation of fault and damages among the defendants. Further, he argues in conclusory fashion that “[t]he concept of seating a new jury merely to reallocate a prior jury’s dueling verdicts is unprecedented and denies either the state an advisory jury or Mr. Rosete an actual jury verdict.” In any event, he argues the new jury would have to hear all the evidence, making the ICA’s remand impractical. Rosete makes plain that the primary reason he seeks a new trial is to exclude evidence heard in the first trial that he argues was unfairly prejudicial to him, an issue that is discussed in the next subsection.In Costales’ Response, she counter-argues (1) limiting retrial to the “allocation of damages” is the preferred remedy under Dias, 67 Haw. 114, 679 P.2d 133; (2) such a limitation

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### promotes judicial economy and fairness, particularly in light of the fact that the defendants do not contest that they were 100% liable for Costales’ injury or that the total damages awarded were reasonable; (3) the limited re-trial is a practical solution and will not require recalling many of the liability and damages witnesses; and (4) Rosete’s request for a completely new trial is a thinly veiled attempt at a “second bite of the apple.” The ICA’s remand of this case for a re-trial “limited to the allocation of fault and damages” is problematic. Costales, mem. op. at 21. The ICA cited Dias for the proposition that “the preferred remedy for [an irreconcilable conflict in a special verdict form] is a new trial limited to the issue of damages.” Costales, mem. op. at 20 (emphasis in original). Dias, however, does not squarely address the situation in this case: an uncontested total damage award where the allocation of fault, in addition to damages, among the defendants is ambiguous. In Dias, homebuyers (the Diases) sued homesellers (the Vaneks) for fraud, after the Vaneks previously represented that their termite inspector found no evidence of termites in the home, and after the Diases found termites in one of the walls. 67 Haw. at 115-16, 679 P.2d at 134-35. The Diases stopped making monthly payments to the Vaneks under their agreement of sale, and the Vaneks made a counterclaim against the Diases for breach of the agreement of sale. 67 Haw. at 116, 679 P.2d at 135.

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### The jury found, inter alia, that the Diases breached the agreement of sale and were liable to the Vaneks for $6,263. Id. The trial court, without explanation, allowed the Vaneks to keep the down payment on the agreement of sale and ordered the Diases to pay the $6,263 in damages to the Vaneks in addition to that. Id. The Diases appealed. Id. This court acknowledged that Hawai ‘ i law allowed the seller to retain payments made as liquidated damages. 67 Haw. at 116- 17, 679 P.2d at 135. However, this court observed that the trial court’s instruction to the jury regarding the down payment mentioned only that a rescission of the agreement of sale (which the jury did not find was warranted) would allow the Diases to get their down payment back; the instructions made no mention of what would happen to the down payment if the Diases did not succeed in rescinding the agreement of sale. 67 Haw. at 117, 679 P.2d at 135-36. Thus, it was unclear what the jury understood would happen to the down payment, and it was unclear whether the jury’s award of $2,263 accounted for the down payment or not. 67 Haw. at 118, 679 P.2d at 136. Thus, this court held that the trial court erred in awarding the down payment to the Vaneks, further clarifying, “The preferred remedy of an ambiguous verdict is to have the jurors return to clarify the verdict. Here, the jury had been discharged, and the only available remedy is a remand for a new trial limited to the issue of damages[.]” Id.

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### This case is similar to Dias in some respects but not others. The jury’s special verdict, like the verdict in Dias, was unclear, because the percentage fault in question number 10 was mathematically inconsistent with the damages breakdown in question number 12. Further, like Dias, the jury in this case had already been discharged and could not be called in to clarify the verdict. However, all the Dias remedy speaks to is re-trial on the contested issue of damages. In this case, the total amount of damages is uncontested. At no point did Rosete (or the other 8 

### defendants) argue that the jury award was unreasonable or that the defendants were not collectively 100% liable to the Plaintiff. Rather, Rosete argued that the confusion in the jury’s special verdict pertained to whether the percentages of fault in question number 10 control, or whether the damages breakdown in question number 12 controls. As such, Dias’s remedy of a new trial limited to damages does not squarely address the ambiguity in the special verdict at bar. Further, not all of the damages determinations are contested. Therefore, the Dias remedy, as applied to this case on remand, is not properly limited. We therefore further limit the damages issues to be re-tried to those that are contested and

No pa rty d isput es th e jur y’s a nswer s to speci al ve rdict ques tion numbe rs 8 1, 2, 4, 5 , 6, 7, 8, and 9, wh ich e stabl ish t hat e ach d efend ant’s acti ons o r omiss ions were the l egal cause of C ostal es’ i njuri es.



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### that are “sufficiently separate” from those damages issues that are not contested on appeal. See Miyamoto, 104 Hawai ‘ i at 10, 84 P.3d at 518 (inferring that where trial issues are “sufficiently separate,” a re-trial on remand can be limited to certain issues). Not at issue on re-trial are the following determinations. First, the jury’s answer to question number 14 established that Rosete is liable to Costales for $300,000 in punitive damages; there is no question that Rosete is liable in his individual capacity for punitive damages. See HRS § 662-2 (1993) (“The State hereby waives its immunity for liability for the torts of its employees . . . but shall not be liable for . . . punitive damages.”) Second, the jury’s answer to question number 13 established that 25% of Costales’ damages can be apportioned to an injury or condition that arose subsequent to the 2002 sexual assaults; no party disputes this determination. These damage determinations shall not be re-tried upon remand. Therefore, we affirm the circuit court’s Final Judgment to the extent that it awarded Costales $300,000 in punitive damages from Rosete, in his individual capacity. In this case, due to the irreconcilable conflict in the jury’s answers to special verdict question numbers 10 and 12, and due to the absence of a Medeiros jury instruction, re-trial on remand shall be limited to the allocation of liability and of general and special damages among the defendants, with an

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### instruction to be given to the jury regarding when a State employee can be personally liable due to malice or improper purpose. In other words, the re-trial shall be limited to a redetermination of the allocation of fault and damages under special verdict form question numbers 10, 11, and 12. B. Admission of the Other Defendants’ Bad Acts On certiorari, Rosete argues that he is entitled to an entirely new trial, not limited to the issue of allocation of fault and damages, because he was unfairly prejudiced by the admission of the other defendants’ bad acts. Although he concedes that the bad act evidence was admissible to show notice of a dangerous condition relevant to Costales’ negligence claims against the State, he argues that the jury found him “guilty by association” with the other defendants, as evidenced by the

illog ical divis ion o f dam ages betwe en th e acc used rapis t and negli gent co-de fenda nts. By d efini tion, an i ntent ional tortf easor caus es mo re da mage than those whos e neg ligen ce contr ibute d to the h arm . . . but t hat w as no t the find ing of th is co nfuse d andangr y jur y, 

### who attributed 18% of the damage to Rosete and 82% of the damage to the other defendants. Rosete argues that the torrent of bad 9 

### act evidence attributable to the other defendants roused the jury to overmastering hostility towards them, thereby distracting the jury from the question of whether Rosete committed the sexual assault against Costales.

This argum ent i s dis ingen uous for R osete to m ake; it sh ould be in his 9 inter est t o acc ept a n 18% allo catio n of fault and not a dvoca te th at th e jur y shoul d hav e fou nd hi m mor e at fault
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### In Costales’ Response, she argues that Rosete’s argument that he was prejudiced by the admission of the other defendants’ bad acts is oversimplified; she argued that testimony simply adverse to Rosete is not prejudicial. Further, she argued that Rosete could have (1) asked for his trial to be bifurcated from the other defendants but did not; and (2) asked for a limiting instruction but did not. Moreover, she argued that the circuit court instructed the jury that “each defendant in this case has separate and distinct rights. You must decide the case of each defendant separately, as if it were a separate lawsuit.” She argued that the jury was presumed to follow the court’s instructions. The ICA’s disposition of the issue was proper. The record does not reflect that Rosete ever requested a limiting instruction as to evidence of the other defendants’ bad acts, even after it became clear that the circuit court was admitting the evidence as relevant to the issue of their notice of a dangerous condition. HRE Rule 105 states, “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Further, the parties acknowledged that Yoshimoto opened the door regarding YCO Lia Olione’s conviction for sexual assault and stipulated to

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### the fact of conviction. In fact, Rosete wanted the jury to know that it was Olione –- not Rosete -- who was convicted of sex assault. Moreover, even considering the allegedly adverse impact of this evidence upon Rosete’s defense, it is unlikely that the jury was distracted by it in assessing whether Rosete sexually assaulted Costales, because there was a similar “torrent” of graphic testimony on that issue by Costales and her witnesses, rebutted only by Rosete’s bare assertions that he did not sexually assault Costales. With or without the admission of the bad acts of the other defendants, the jury would likely have found Rosete liable for sexually assaulting Costales. Consequently , on certiorari, Rosete has not shown how the admission of bad acts going towards the issue of the other defendants’ negligence prejudiced him. C. HRS § 662-10 Rosete argues that HRS § 662-10 precludes a contemporaneous judgment against both the State of Hawai ‘ i and Rosete in his individual capacity. It is true that HRS § 662-10 states, “The judgment in an action under this chapter shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the State whose act or omission gave rise to the claim.” However, the provisions of Chapter 662, including HRS § 662-10’s judgment bar, does not

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### apply to Costales’ claim of assault and battery against Rosete in his individual capacity. HRS § 662-15 (Supp. 2004) states, “This chapter [Chapter 662] shall not apply to . . . [a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. . . .” Therefore, HRS § 662-10 does not apply to bar Costales’ intentional tort claim against Rosete in his individual capacity. 1 0

In re jecti ng Ro sete’ s arg ument , the ICA misus ed fe deral case law 1 0 inter preti ng 28 U.S. C. § 2676 (2006 ). C ostal es, m em. o p. at 15. The ICA t ook a foo tnote fromRodr iguez , 873 F.2dat 8 16 n. 1, ou t of conte xt to supp ort i ts concl usion that 28 U .S.C. § 26 76 (a nd, a nalog ously , HRS § 66 2-10) bars only the s ubseq uent judgm ent a gains t an indiv idual gove rnmen t emp loyee foll owing a judgm ent a gains t the gove rnmen t. T he co mplet e foo tnote in R odrig uez r eads:

The p laint iffs conte nd th at § 2676 is an affi rmati ve de fense which the indiv idual defe ndant s wai ved b y fai ling to affir mativ ely p lead it. The f law i n thi s arg ument is t hat § 2676 is ap plica ble o nly a fter a pla intif f obt ains a jud gment again st th e Uni ted S tates . In this case the judgm ent again st th e Uni ted S tates was enter ed at the same time as the j udgme nt ag ainst the indiv idual . Th erefo re, t he indiv idual defe ndant s cou ld no t hav e ple ad § 2676 as an affir mativ e def ense. 873 F .2d a t 816 , n.1 (emp hasis adde d). The p oint in th e Rod rigue z foo tnote was t hat 2 8 U.S .C. § 2676 does not bar a Bive ns cl aim a gains t an indiv idual gover nment defe ndant fromthe outse t, ev en th ough the B ivens clai m acc ompan ies a Fed eral Tort Claim s Act (“FT CA”) claim , andeven if t he Bi vens claimmigh t later be p reclu ded b y a j udgme nt on the FTCA claim . (A“Biv ens c laim” refe rs to th e pr ivate righ t of actio n for mone y dam ages basedon c onsti tutio nal viola tions comm ittedby f edera l age nts i n the perf orman ce of thei r off icial dutie s, wh ich w as ju dicia lly c reate d by Biven s v. Six U nknow n Nam ed Ag ents of Feder al Bu reau of Na rcoti cs, 4 03 U. S. 38 8 (19 71).) The I CA, h oweve r, ch aract erize d the emph asize d lan guage abov e as the “hold ing” in Ro drigu ez, i gnori ng th e res t of the o pinio n, wh ich h eld t hat a even conte mpora neous entr y of judgm ent o n an FTCA claimbars the entryof judgm ent o n a B ivens clai m, un der 2 8 U.S .C. § 2676 . Ro drigu ez, 8 73 F. 2d at 816: [T]he pric e of obtai ning an FT CA ju dgmen t aga inst the U nited

State s bas ed on a gi ven i ncide nt is the loss of al l cla ims arisi ng fr om th at in ciden t aga inst the U nitedStat es’ agent s: “ The m oment judg ment was e ntere d aga inst the gover nment , the n by virtu e of secti on 26 76, [ the i ndivi dual (cont inued
. . .)



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### In a case factually similar to the instant one, we held: [W]he re th e pla intif f’s n eglig ence claimseek s to hold the State liab le fo r the cond uct o f sta te employe es ot her t han the a llege d tor tfeas or, p ursua nt to theo ries of ne glige nt hirin g, re tenti on, s uperv ision , or the l ike, the p laint iff’s claimdoes not neces saril y “ar ise o ut of ” the hire d, retai ned, or su pervi sed e mploy ee’s inten tiona l tor t. Rathe r, if the State knew , or reaso nablyshou ld ha ve antic ipate d, th at on e of its e mploy ees w ould commi t an inten tiona l tor t aga inst a per son t o who m the Stat e owe d a duty of ca re, t he St ate i s lia ble f or th e neg ligen ce of those empl oyees who were in a posit ion t o tak e rea sonab le preca ution s aga inst the a ntici patedharm
. 

### Doe Parents No. 1 v. Dep’t of Educ., 100 Hawai ‘ i 34, 68, 58 P.3d 545, 579 (2002) (emphasis added). Therefore, HRS § 662-10 does not bar Costales from obtaining contemporaneous judgments from Rosete in his individual capacity and from the State. To the extent that recovery against the State is predicated on the alleged negligence of Rosete’s superiors in hiring, supervising, training, and retaining him, such a claim does not involve “the same subject matter” as the intentional tort claims against
Rosete. V. Conclusion For the foregoing reasons, the ICA’s Judgment on Appeal is vacated. The circuit court’s Order Granting in Part and Denying in Part Defendant Rosete’s, in his Individual Capacity, Motion for Judgment as a Matter of Law and Alternative Motion for a New Trial is affirmed, and this case is remanded for further

(con tinue d . . .) 9 agent ] was no l onger answ erabl e to [the plain tiff] for damag es.” (citi ng Ar evalo v. W oods, 811 F.2d 487, 490 ( 9th C ir. 1 987))
.



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### proceedings consistent with this opinion. Specifically, the circuit court shall limit the issues of the new trial to the allocation of fault and of general and special damages among the defendants, with an instruction to be given to the jury regarding when a State employee can be personally liable due to malice or improper purpose pursuant to Medeiros v. Kondo, 55 Haw. 499, 505, 522 P.2d 1269, 1272 (1974). In other words, the re-trial shall be limited to a redetermination of the allocation of fault and damages under special verdict form question numbers 10, 11, and 12.
C. Bryan Fitzgerald and /s/ Mark E. Recktenwald Deborah Day Emerson for petitioner /s/ Paula A. Nakayama Sue V. Hansen and /s/ Sabrina S. McKenna Charles W. Crumpton for respondent /s/ Richard W. Pollack

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