NO.
CAAP-14-0001032
Intermediate Court of Appeals of Hawai‘i.
Pflueger, Inc. v. Noguchi & Assocs., Inc.
136 Haw. 372 (Haw. Ct. App. 2015) • 362 P.3d 805
Decided Nov 23, 2015
No. CAAP–14–0001032.
11-23-2015
PFLUEGER, INC., Plaintiff–Appellee, v.
NOGUCHI & ASSOCIATES, INC., Defendant–
Appellant, and AIU Holdings, Inc., National
Union Fire Insurance Company of Pittsburgh,
Pennsylvania, Defendants–Appellees, and Doe
Corporations 1–10, Doe Partnerships 1–10, and
Doe Entities 1–10, Defendants.
Richard B. Miller, Patricia Kehau Wall, (Tom
Petrus & Miller) and Christopher Shea Goodwin,
Thomas D. Sands, (with them on the opening
brief), On the briefs, for Defendant–Appellant.
Lyle S. Hosoda, Raina P.B. Gushiken, (Hosoda &
Morikone), On the briefs, for Plaintiff–Appellee.
Richard B. Miller, Patricia Kehau Wall, (Tom
Petrus & Miller) and Christopher Shea Goodwin,
Thomas D. Sands, (with them on the opening
brief), On the briefs, for Defendant–Appellant.
Lyle S. Hosoda, Raina P.B. Gushiken, (Hosoda &
Morikone), On the briefs, for Plaintiff–Appellee.
MEMORANDUM OPINION
[136 Hawai'i 1]
Defendant–Appellant Noguchi & Associates, Inc.
(Noguchi) appeals from the “Amended Final
Judgment as to All Claims and All Parties,”
entered July 11, 2014 in the Circuit Court of the
First Circuit1 1 (circuit court).
1 The Honorable Jeannette H. Castagnetti
presided.
•
2015 WL 7723045
1 The IRS issued additional grand jury
subpoenas to Pflueger on July 2, 2008; July
10, 2008; July 18, 2008; and October 29,
2008. Although the record reveals that an
indictment was eventually handed down,
further details of the IRS dispute are
irrelevant to the instant disposition.
On appeal, Noguchi contends the circuit court
erred in: (1) excluding deposition testimony of
out-of-state witnesses as hearsay; (2) denying its
“Motion for a New Trial” filed December 13,
2013; (3) granting the “Motion to Preclude
Application of the Good Faith Settlement Credit”
filed by Plaintiff–Appellee Pfleuger, Inc.
(Pfleuger) under Hawaii Revised Statutes (HRS)
§ 663–15.5 (Supp.2014); and (4) granting
Pfleuger's Judgment as a Matter of Law.
I. BACKGROUND
Pfleuger is an automotive retailer and employed
Noguchi as its insurance broker for over twenty
years. In the event of an incident, Pfleuger would
inform Noguchi according to an oral
understanding between the two parties. Pfleuger
communicated with Noguchi and did not have any
direct communication with its insurance carriers.
In 2005, Pfleuger received notice that it was being
audited by the Internal Revenue Service (IRS).
Pfleuger informed Noguchi of the audit.
On May 22, 2008, Pfleuger received Grand Jury
subpoenas for the production of documents in the
United States District Court for the District of
Hawai‘i. Upon receiving the subpoenas, Pfleuger's
Chief Financial Officer, Randall Kurata (Kurata),
1
 Pflueger, Inc. v. Noguchi & Assocs., Inc.
contacted Noguchi. Glenn Maruyama, an agent at
Noguchi, told Kurata that there were no claims
under Pfleuger's insurance policies until the Grand
Jury issued an indictment. During the relevant
time, Pfleuger was insured by Defendant–
Appellee National Union Fire Insurance Company
of Pittsburgh, PA (National Union).
On February 11, 2009, Pfleuger notified
Defendant–Appellee AIU Holdings, Inc. (AIU)
and National Union of the proceedings before the
Grand Jury. Dennis Van Dina (Van Dina), a
claims analyst for AIU, denied coverage because
the “materials submitted ... would not constitute a
Claim.”
On June 10, 2009, Pfleuger filed a “Complaint for
Declaratory Relief, Negeligence, Negligent
Misrepresentation and Breach of the Duty of Good
Faith And Fair Dealing” against AIU, National
Union, and Noguchi alleging that it was entitled to
coverage under its insurance policies. Pfleuger
brought negligence and negligent
misrepresentation claims against Noguchi, and a
breach of the duty of good faith and fair dealing
against AIU and National Union. In its claim for
negligence against Noguchi, Pfleuger alleged the
following:
20. Noguchi owed a duty to Pfleuger to tender the
Grand Jury proceeding to Pfleuger's insurer.
21. Noguchi breached its duty to Pfleuger,
22. As a direct and proximate result of Noguchi's
negligence, Pfleuger has been denied coverage for
the Grand Jury matter and has suffered and
continues to suffer financial damage, and other
general and special damages in an amount to be
proven at trial, and for which Noguchi is liable.
[136 Hawai'i 2]
Regarding its claim for negligent
misrepresentation, Pfleuger alleged:
24. Noguchi represented to Pfleuger that the
Grand Jury Proceeding was not covered under the
aforementioned insurance policies.
136 Haw. 372 (Haw. Ct. App. 2015)
25. Noguchi's representations were untrue and
were made to Pfleuger without reasonable
investigation, and with the intent to induce
Pfleuger to rely thereon.
26. Pfleuger was unaware that Noguchi's
representations on this point were untrue, and
reasonably relied on them in declining, for a time,
to further tender the Grand Jury matter directly to
its insurer under the aforementioned insurance
policies.
27. But for Noguchi's representations, Pfleuger
would have immediately tendered the May 22,
2008 Grand Jury Subpoena to [AIU] and National
Union.
28. As a proximate result of Noguchi's
representations, [AIU] and National Union have
denied Pfleuger's tender of the Grand Jury
proceedings as untimely, and denied Pfleuger
coverage under the aforementioned insurance
policies.
29. As a proximate result of Noguchi's actions,
Pfleuger has suffered and continues to suffer
financial damage, and other general and special
damages in an amount to be proven at trial, and
for which Noguchi is liable.
AIU and National Union entered into a
confidential settlement with Pfleuger. The circuit
court found that the settlement was in good faith
pursuant to HRS § 663–15.5.
On June 28, 2013, Noguchi filed its designation of
excerpts from the depositions of Van Dina and
Tiffany Ngeo (Ngeo), a senior complex claims
director for AIU, pursuant to Hawai‘i Rules of
Civil Procedure (HRCP) Rule 32.
The jury trial began on July 22, 2013. On July 26,
2013, the jury returned a special verdict for
Pfleuger, assigning 30% of fault to Pfleuger and
70% fault to Noguchi.
II. STANDARD OF REVIEW
A. Admission of Depositions
2
 Pflueger, Inc. v. Noguchi & Assocs., Inc.
“The admissibility of depositions at trial is
reviewable under the abuse of discretion standard.
A trial court's exercise of discretion in ruling on
the admissibility of depositions will be upheld
unless an abuse of discretion is manifest.” Aqa v.
Hundahl, 78 Hawai‘i 230, 241, 891 P.2d 1022,
1033 (1995) (quoting Wilart Assocs. v. Kapiolani
Plaza, Ltd., 7 Haw.App. 354, 362, 766 P.2d 1207,
1212 (1988)).
An abuse of discretion occurs if the trial court has
“clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice
to the substantial detriment of a party litigant.”
Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74
Haw. 85, 114, 839 P.2d 10, 26 (1992).
III. DISCUSSION
A. Exclusion of Deposition
Testimony
Noguchi contends the circuit court abused its
discretion by excluding deposition testimony of
out-of-state witnesses as hearsay. Noguchi argues
that the testimony was admissible under HRCP
Rule 32(a), to which the hearsay rule does not
apply. At trial, Pfleuger objected to the
introduction of deposition testimony evidence of
two witnesses who were out-of-state based on
Noguchi's failure to establish that the witnesses
were unavailable for purposes of HRCP Rule 32
and because the deposition testimony was hearsay
under Hawaii Rules of Evidence (HRE) Rule 802
(1993).2 2
2 Although Pfleuger initially objected to the
admission of the testimony based on
Noguchi's failure to establish that the
witnesses were “unavailable” under HRCP
Rule 32, the circuit court's decision to
exclude the testimony was based solely on
HRE Rule 802, HRE Rule 803 (1993 and
Supp.2014), and HRE Rule 804 (1993 and
Supp.2014). Pfleuger clarified that its
objection to the testimony was based on
hearsay.
136 Haw. 372 (Haw. Ct. App. 2015)
2 AIU Holdings, Inc. was at different times a
corporate affiliate of American Insurance
Group (“AIG”). National Union was a
subsidiary of AIG.
[136 Hawai'i 3]
The circuit court sustained Pfleuger's request to
exclude the testimony on the basis that such
testimony was hearsay. Hearsay “is a statement,
other than one made by the declarant while
testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”
HRE Rule 801 (Supp 2014.). “Hearsay is not
admissible except as provided by [the HRE], or by
other rules prescribed by the [Hawai‘i Supreme
Court], or by statute .” HRE 802.
HRCP Rule 32(a) permits a party to use “any part
or all of a deposition, so far as admissible under
the rules of evidence applied as though the witness
were then present and testifying” where “the
witness resides on an island other than that of the
place of trial or hearing, or is out of State, unless it
appears that the absence of the witness was
procured by the party offering the deposition[.]” A
party who wishes to admit such testimony must
“provide to other parties and promptly file with
the court ... information regarding the evidence
that it may present at trial ... at least 30 days
before trial.” HRCP Rule 32(b). The opposing
party may object at the trial or hearing “for any
reason which would require the exclusion of
evidence if the witness were then present and
testifying.” HRCP Rule 32(c).
Under HRCP Rule 32(a), evidentiary rules are to
be applied “as though the witness were then
present and testifying[.]” Thus, the conclusion that
the entire deposition testimony was hearsay
because it was out-of-court testimony is
erroneous. Additionally, HRCP Rule 32(a) is an
“other rule” prescribed by the Hawai‘i Supreme
Court, falling within the explicit definitional
exception in HRE Rule 802. See Nationwide Life
Ins. Co. v. Richards, 541 F.3d 903, 914–15 (9th
3
 Pflueger, Inc. v. Noguchi & Assocs., Inc. 136 Haw. 372 (Haw. Ct. App. 2015)

Cir.2008) (concluding that Federal Rules of Civil begun (though Pfleuger's unavailability objection
Procedure Rule 32(a)(3)(B) is an “other rule” was based ultimately in hearsay rules). Pfleuger's
prescribed by the United States Supreme Court). delay in bringing its unavailability objection left
Noguchi no opportunity to respond to the
Pfleuger argued at trial that Noguchi was required
objection with documentary evidence. The delay
to provide a subpoena or letter establishing that
amounted to a waiver of Pfleuger's right to object
Van Dina and Ngeo were unavailable to testify at
to the admission of the deposition testimonies of
trial. HRCP Rule 32(a)(3) allows a party to use a
Van Dina and Ngeo at trial.
deposition “if the court finds ... that the witness
resides ... out of the state.” HRCP Rule 32 does [136 Hawai'i 4]
not require a party to provide a subpoena or letter
Pfleuger argues that even if the trial court erred in
evidencing the deponent's place of residence.
sustaining its objection, the error was not
There was sufficient evidence before the circuit prejudicial because evidence that the insurance
court to find that Van Dina and Ngeo resided out carrier would have denied coverage was in
of state for the purposes of HRCP Rule 32(a)(3). evidence through cross-examination of Pfleuger's
Noguchi's designation of Van Dina's deposition expert witness. Van Dina and Ngeo's testimonies
excerpts includes Van Dina's testimony that he directly contradict Pfleuger's claims.
resides in New York, New York. Pfleuger's
Van Dina testified in his deposition that AIU had
subpoena was addressed to Van Dina in New
received notice of the IRS subpoena in May 2008
York, New York and the deposition was taken in
instead of February 2009, AIU would still not
New York, New York. Similarly, Ngeo's
have covered Pfleuger because a Grand Jury
deposition was also taken in New York, New
subpoena is not a “claim” within the meaning of
York.
the AIU policy. Ngeo, a senior complex claims
In addition to the evidence establishing that the director within AIU, testified that after reviewing
deponents resided out of state, Pfleuger waived its the subpoena, she agreed with Van Dina's finding
objection to the admissibility of Van Dina and that the subpoena did not fit within the definition
Ngeo's deposition testimony because Pfleuger of a “claim” under Pfleuger's policy with AIU.
delayed its unavailability objection until after the
Regarding its negligence claim, Pfleuger alleged,
commencement of trial. In preparation for trial,
“As a direct and proximate result of Noguchi's
Pfleuger submitted its objections to Noguchi's
negligence, Pfleuger has been denied coverage for
designation of excerpts from Van Dina's
the Grand Jury matter ....“ Van Dina and Ngeo's
testimony, which listed specific objections to
testimonies suggest that had Noguchi acted in
portions of Van Dina's testimony, but did not
accordance with the applicable standard of care,
include the HRCP Rule 32 objection to Van Dina's
Pfleuger would have suffered the same harm,
unavailability. Pfleuger also submitted objections
negating Pfleuger's causation argument. On its
to Noguchi's designation of excerpts from Ngeo's
negligent misrepresentation claim, Pfleuger
testimony, but again did not raise a HRCP Rule 32
alleged, “As a proximate result of Noguchi's
objection to Ngeo's unavailability. At the hearing
representations, [AIU] and National Union have
on motions in limine, the parties had an
denied Pfleuger's tender of the Grand Jury
opportunity to address the designations of excerpts
proceedings as untimely, and denied Pfleuger
from deposition testimony. The circuit court
coverage under the aforementioned insurance
allowed the deposition testimony to be used at
policies .” Again, Van Dina and Ngeo's
trial with specific limitations. Pfleuger raised the
testimonies undermine the causation element of
unavailability objection only after trial had already
negligent misrepresentation because even had

4
 Pflueger, Inc. v. Noguchi & Assocs., Inc.
Pfleuger submitted the information to AIU in a
timely manner, AIU would still have denied
coverage.
At trial, Pfleuger's expert Jim Schratz (Schratz)
testified that based on his review of Van Dina and
Ngeo's depositions, the decision to deny coverage
would have been the same regardless of when it
was reported to the insurer. Schratz was
questioned:
Q: Is it your opinion, that based upon your review
of Mr. Van Dina's tesimony, that [AIU] would
have denied this claim regardless of when it was
reported by Noguchi or anyone else?
[Schratz]: The best way I can answer that question
is that Mr. Van Dina, incorrectly, was pretty
stubborn in his coverage opinion, saying he would
deny it, but that's the best way I can answer that
question.
Q: Okay. Can you turn to page 100 of your
deposition.
....
Regardless of whether or not a Court determines
there's coverage in this case, if, in fact, that is an
issue that's presented to the Court, you would
agree with me, that based on your review of the
deposition testimony of Mr. Van Dina and the
deposition testimony of Tiffany Ngeo that it is the
position of [AIU] that regardless of when Noguchi
or any other entity had reported this claim to
[AIU], [AIU's] coverage denial decision would
have been the same? And what was your answer?
[Schratz]: Yes, based on Van Dina's deposition
testimony, yes.
[136 Hawai'i 5]
Q: And Mr. Van Dina was, in fact, your
understanding, the claims representative at [AIU]
who made the coverage decision regarding this
matter? And your answer?
136 Haw. 372 (Haw. Ct. App. 2015)
[Schratz]: Poorly trained and very inexperienced
claims adjuster, but, yes. And then I issued my
own motion to strike.
Pflueger argues that this testimony was sufficient
to mitigate the prejudice done by excluding the
testimony of Van Dina and Ngeo. However, this
testimony suggests that Van Dina improperly
denied coverage for Pfleuger's claim, and would
have improperly denied coverage even if the claim
had been submitted in a timely manner. Schratz's
testimony on cross-examination does not
adequately substitute the testimony likely to have
been provided by Van Dina and Ngeo. As such,
Schratz's testimony is insufficient to render the
exclusion of Van Dina's and Ngeo's testimonies as
non-prejudicial.
The testimonies of Van Dina and Ngeo were
essential to Noguchi's defense against Pfleuger's
accusations of negligence and negligent
misrepresentation. By excluding their testimony,
the circuit court disregarded rules or principles of
law to Noguchi's substantial detriment. Amfac, 74
Haw. at 114, 839 P.2d at 26.
B. Remaining Points of Error
Because we have held that the circuit court's
decision to exclude the testimony of Van Dina and
Ngeo was reversible error which warrants a new
trial, we need not address Noguchi's remaining
points of error.
IV. CONCLUSION
The “Amended Final Judgment as to All Claims
and All Parties,” entered July 11, 2014 in the
Circuit Court of the First Circuit is vacated and
this case is remanded for further proceedings
consistent with this opinion.
Dissenting Opinion of REIFURTH, J.
[136 Hawai'i 5]
I respectfully dissent. Because the circuit court's
ruling on Pflueger's evidentiary objection is
reviewed under an abuse of discretion standard,
5
 Pflueger, Inc. v. Noguchi & Assocs., Inc.
and because the basis for the court's ruling is
heavily dependent on the arguments advanced
(and not advanced) by the parties, particular
attention to the facts of the case is warranted.
I. Background
A. Pflueger submitted its claim to its insurance
broker, Noguchi, for coverage under its Directors
and Officers liability insurance policy, but
Noguchi did not forward the claim to Pflueger's
insurer.
National Union issued Directors and Officers
liability insurance policies to Pflueger, its officers,
and its directors via Pflueger's long-time insurance
broker, Noguchi, for policy periods covering
September 27, 2007 to September 27, 2008, and
September 27, 2008 to September 27, 2009
(collectively, the “Policies”). The Policies required
that National Union defend and indemnify
Pflueger against covered claims.
On or about May 22, 2008, grand jury subpoenas
were issued on behalf of the Internal Revenue
Service and the IRS's ongoing investigation
involving Pflueger, its subsidiaries, and its officers
and directors. The subpoenas demanded that a
Pflueger representative appear and produce certain
company records.
[136 Hawai'i 6]
Pflueger's then Chief Financial Officer testified
that he met with Noguchi representatives on or
about that same day, and claims to have presented
them with copies of the grand jury subpoenas in
order to inform Noguchi of the grand jury
proceeding's existence and to discuss how to
proceed in obtaining the relevant documents.
Pflueger and Noguchi had developed a practice
over the years that if Pflueger had questions about
whether or not a possible insurance claim would
be covered, Pflueger was to inform Noguchi, and
if the claim was likely covered, Noguchi would
instruct Pflueger on how to properly file the claim.
Noguchi declined to forward Pflueger's claim for
reimbursement of fees/costs related to the grand
136 Haw. 372 (Haw. Ct. App. 2015)
jury subpoenas to the insurer, stating, however,
that the claims were not covered under the Policies
until indictments might be handed down.1
On or about February 11, 2009, Pflueger tendered
each of the grand jury subpoenas directly to AIU,2
which is National Union's “authorized
representative”, stating that its tender was
effective as of the May 22, 2008 meeting with
Noguchi. On or about April 29, 2009, AIU, in a
letter written by Van Dina, stating that AIU's
“preliminary coverage position” was that “no
coverage is afforded for this matter” because the
claims “w[ere] made outside the Policy Period.”
Furthermore, the letter stated that even if the
matter “was both made and reported as per the
requirements of the Policy,” the subpoenas “would
not constitute a Claim.” According to AIU, “an
indictment, information or similar document is
necessary for a Claim as defined” in the Policies.
Pflueger sued AIU, National Union, and Noguchi,
alleging counts for declaratory relief
(AIU/National Union), Negligence (Noguchi),
Negligent Misrepresentation (Noguchi), and
Breach of the Duty of Good Faith and Fair
Dealing (AIU/National Union). Pflueger and
AIU/National Union settled outside of court, and
Pflueger and Noguchi proceeded to trial in late
July, 2013. On July 10, 2013, the circuit court
issued an “Order Granting in Part and Denying in
Part Plaintiff Pflueger Inc.'s Motion for Partial
Summary Judgment, Filed on May 15, 2013,” in
which it ruled that the May 22, 2008 grand jury
subpoenas directed at Pflueger did, in fact,
constitute a “claim” under the Policies.
B. Pretrial proceedings.
On June 28, 2013, Noguchi filed its designation of
excerpts from Van Dina's March 30, 2012
deposition for use at trial in lieu of Van Dina's live
testimony.3 That same day, Pflueger and Noguchi
each filed similar designations with regard to
Ngeo's July 22, 2011 deposition testimony. On
July 12, 2013, Pflueger filed its objections to
Noguchi's designation of the Van Dina deposition.
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 Pflueger, Inc. v. Noguchi & Assocs., Inc.
Based on the circuit court's subsequent ruling on
Pflueger's motions in limine, the court allowed the
deposition designations of Van Dina because they
were relevant to the issue of proximate cause.
3 Noguchi sought to introduce excerpts from
Van Dina's March 30, 2012 deposition at
the following pages and relating to the
following subjects (including exhibits
referenced therein) (page:line): 6:9–7:3
(name, residence address, business address,
current and prior employer); 7:11–7:25
(law degree and work history; 12:6–13:10
(law school, undergraduate, and work
chronology); 18:17–19:5 (chronology of
early employment with AIG/AIU); 24:12–
24:19 (types of claims handled in early
years at AIG/AIU); 26:22–27:10 (history
of handling Pflueger claims for AIG/AIU);
30:7–31:14 (attempt to place this case
within the context of any other Pflueger
claims that he handled); 63:4–65:7
(February 11, 2009 letter from Pflueger to
AIG (Exh. 5); relationship between that
letter and coverage opinions dated April
29, 2009 and May 13, 2009 (Exh. 12));
71:4–72:15 (industry meaning of
“tendered” and “covered matters”); 73:3–
74:2 (further discussion of “tendered”
within context of Pflueger letter of
February 11, 2009 and a “duty to defend”
insurance policy); 74:18–76:23
(explanation of what it means when
Pflueger tenders the claim to AIG/AIU;
coverage versus defense; limited
recollection of what happened after
presentment of letter except that coverage
was declined); 80:16–82:4 (limited
recollection of his review of attached grand
jury subpoenas; explanation of what's
relevant in such cases to determine
coverage); 106:2–106:10 (he wrote Exh.
10); 112:7–112:19 (even if the claim had
been timely, he may not have viewed it as a
claim because it was a subpoena and not an
indictment); 126:2–126:10 (why he
contends that a grand jury investigation is
not a criminal proceeding); 135:19–137:7
136 Haw. 372 (Haw. Ct. App. 2015)
(he believed at the time that there were two
bases for denying coverage, untimely and
not a claim, and he still believes that).
C. The circuit court sustained Pflueger's objection
at trial that the deposition testimonies of Van Dina
and Ngeo were inadmissible as hearsay.
[136 Hawai'i 7]
During trial, Pflueger objected to the introduction
of Van Dina's deposition testimony on the basis
that it was hearsay in violation of Hawai‘i Rules
of Evidence Rule 802 that did not qualify for an
exception under Rule 804 because Noguchi had, to
that point, failed to establish the foundational fact
that the witness was unavailable to testify. In
response, Noguchi did not contest that it had failed
to demonstrate unavailability and made no attempt
to demonstrate unavailability, but argued instead
that the testimony was admissible as an
“admission[ ] by a party opponent” under HRE
Rule 803(a)(1).4
4 HRE Rule 803, unlike Rule 804, does not
require a showing of unavailability.
Compare Haw. R. Evid. 803 (“The
following are not excluded by the hearsay
rule, even though the declarant is available
as a witness ....”), with Haw. R. Evid.
804(b) (stating in part (b) that “[t]he
following are not excluded by the hearsay
rule if the declarant is unavailable as a
witness ...,” and defining “Unavailability as
a witness” in part (a)).
The circuit court agreed that the testimony would
be admitted on that basis if Noguchi could
establish the required elements of the admission-
by-a-party-opponent exception: (1) “[t]hat the
statement was made by a party to the litigation,”
and (2) “[t]hat the statement now be offered
against that party.” However, Ngeo and Van Dina
are National Union's (i.e., the “carrier's”)
representatives and Noguchi offered their
testimonies against Pflueger, so the circuit court
sustained Pflueger's objection and held that the
evidence should not be admitted at trial.5 In
7
 Pflueger, Inc. v. Noguchi & Assocs., Inc. 136 Haw. 372 (Haw. Ct. App. 2015)

support of its ruling, the circuit court explained process: “We don't need to raise each and
that Noguchi's response to the objection had been every evidentiary objection before trial,

limited to the admission-by-a-party-opponent whether it's through a motion in limine or

through objecting to depo designations,”
argument, which the court found to be
Accordingly, it determined, the objection
insufficient.6 Nonetheless, the court explicitly
was not untimely.
offered Noguchi the opportunity to reconsider its
response and to make an alternative argument that 7 Rather, Noguchi argued that it was being

the court promised to entertain. Moreover, later prevented from presenting evidence of a
that day, the circuit court reminded Noguchi that it one-time co-defendant's (i.e., the carrier's)

had merely sustained the objection with regard to wrong, in violation of Adams v. Yokooji,
126 Hawai‘i 420 (App.2012). The circuit
the deposition testimonies on hearsay grounds, but
court explained that Yokooji was
that it was not precluding Noguchi from calling
inapplicable under the circumstances of
Van Dina or Ngeo as witnesses. Nonetheless,
this case, where the question was whether
Noguchi never re-offered the deposition testimony
Van Dina's deposition testimony
under any other exception to the general rule
constituted an admission of a party
against hearsay,7 see generally Haw. R. Evid. Rule opponent. (Citing to the commentary to
802, and it never called either Van Dina or Ngeo HRE Rule 803(a) and Kekua v. Kaiser
as witnesses at trial. Foundation Hospital, 61 Haw. 208, 217,

5 Specifically, the court explained:

601 P.2d 364, 371 (1979).) Thus, the
court's ruling was based on the requirement
Okay. So plaintiff's objection at this point
that parties lay a proper foundation for the
is that it's hearsay. You're saying this
admission of evidence under HRE Rule
evidence is admissible under [HRE Rule.]
803(a)(1).
803(a)(1) as an admission ... by a party
opponent, but that party opponent is no The jury found in favor of Pflueger on the issues
longer in the litigation. They have settled, of negligence and negligent misrepresentation and
and so for that—if you're offering it under the circuit court denied Noguchi's subsequent
[HRE Rule] 803(a)(1), I'm inclined to motion for a new trial. Noguchi timely appealed
sustain the objection, because I understand
and, among other arguments on appeal, contends
at the time it was taken, they were a party
that Pflueger's hearsay objection should have been
opponent, but they are no longer a party
overruled pursuant to HRCP Rule 32(a) because
opponent, and this evidence ... still has to
Van Dina and Ngeo were out-of-state at the time
be offered, ... it has to be admissible ...
under a rule.
of trial and were therefore unavailable to testify.

(Format altered.) II. Discussion

6 Noguchi then argued that the objection was
The majority holds that the circuit court's decision
untimely and a surprise, explaining that, in to exclude deposition testimony of Van Dina and
an earlier order by the circuit court, the Ngeo was reversible error that warrants a new
court had set a deadline for objections to
trial. Specifically, the opinion holds that (A) the
deposition designations which, Noguchi
circuit court erred by concluding that the entire
contended, had not been met. The court
deposition testimony was hearsay not falling
replied that it considered the objection to
within any exception to the rule against hearsay,
be evidentiary in nature, and that
objections of that sort were not waived by
and (B) that such error was not harmless. I
any failure to make the objection as part of disagree as to both conclusions.
the designation/counter-designation

8
 Pflueger, Inc. v. Noguchi & Assocs., Inc.
A. The deposition testimonies were not admissible
as admissions of a party opponent, and the circuit
court therefore did not abuse its discretion in
declining to admit them at trial on that basis.
[136 Hawai'i 8]
It was not an abuse of discretion for the trial court
to exclude the deposition testimony when
Noguchi's only argument in response to Pflueger's
objection was that the deposition testimony should
be admissible as an admission by a party opponent
under HRE Rule 803(a)(1). The testimony,
however, was not made by either of the remaining
parties to the litigation (i.e., Pflueger or Noguchi)
as required. See Commentary to HRE Rule 803(a)
(citing Kekua, 61 Haw. at 217, 601 P.2d at 371).
Instead, the deposition testimony at issue was
made by a representative of National Union,
which had settled out of the case before trial.
As noted above, the circuit court took care to
explain that the admission-by-a-party-opponent
exception did not apply in this case. And, to that
end, the court gave Noguchi multiple
opportunities to present it with the proper
response to the objection. Indeed, the evidence
should probably have been admitted into evidence
under HRE Rule 804(b)(1), which allows courts to
admit former-testimony hearsay if the declarant is
unavailable as a witness, but Noguchi failed to
make that argument. See Commentary to Haw. R.
Evid. R. 804(b)(1) (“Depositions of parties to the
litigation may be usable as admissions under Rule
803(a)(1); as to other deponent-declarants, the
requirement of unavailability and the conditions of
this exception govern.”).
As such, the circuit court neither abused its
discretion by denying Noguchi's Rule 803(a)(1)
argument, nor did it abuse its discretion by failing
to raise Rule 804(b)(1) sua sponte. 8 State v.
Matias, 57 Haw. 96, 101, 550 P.2d 900, 904
(1976) (“[T]his court [has] observed that ‘there
can be no doubt that the making of an objection
upon a specific ground is a waiver of all other
objections.’ “ (quoting Choy v. Otaguro, 32 Haw.
136 Haw. 372 (Haw. Ct. App. 2015)
543, 556 (1932))); State v. Gray, No. 29051, 2009
WL 1204948, at *1 (Haw.Ct.App. Apr. 29, 2009)
(“A specific objection waives other objections not
made.” (citing State v. Vliet, 91 Hawai‘i 288, 298–
99, 983 P.2d 189, 199–200 (1999))); Tableros v.
Clark Equip. Co., 85 Hawai‘i 336, 379 n.29, 944
P.2d 1279, 1322 n.29 (1997) (“Waiver will also
occur when the trial objection, properly overruled,
differs from that pressed on appeal.” (emphasis
omitted) (quoting A. Bowman, Hawaii Rules of
Evidence Manual 7–9 (1990))); accord State v.
Winfrey, No. 28737, 2009 WL 1144409, at *1
(Haw.Ct.App. Apr. 29, 2009) (citing Vliet, 91
Hawai‘i at 298–99, 983 P.2d at 199–200). See
generally State v. Moses, 102 Hawai‘i 449, 456,
77 P.3d 940, 947 (2003) (“As a general rule, if a
party does not raise an argument at trial, that
argument will be deemed to have been waived on
appeal; this rule applies in both criminal and civil
cases.” (citing other sources)); accord Asato v.
Procurement Policy Bd., 132 Hawai‘i 333, 354
n.22, 322 P.3d 228, 249 n.22 (2014) (citing Moses,
102 Hawai‘i at 456, 77 P.3d at 947).
8 Nor does the fact that Van Dina's
deposition transcript established that Van
Dina lived and worked in New York satisfy
Noguchi's obligation to bring that
information to the court's attention under
HRCP Rule 32(a)(3)(B), or to argue that
Van Dina was therefore unavailable.
This would normally be the end of the matter
except that, while appellate courts “need not
consider a point that was not presented in the trial
court in an appropriate manner,” they “may [also]
correct any error appearing on the record” under
the doctrine of plain error. Haw.Rev.Stat. § 641–2
(Supp.2014); see Haw. R.App. P. Rule 28(b)(4)
(“Points not presented in accordance with this
section will be disregarded, except that the
appellate court, at its option, may notice a plain
error not presented.”). Cf. Matias, 57 Haw. at 101,
550 P.2d at 904 (noting that, while the doctrine of
plain error constitutes an exception to the general
rule prohibiting appellate courts from considering
9
 Pflueger, Inc. v. Noguchi & Assocs., Inc.
grounds urged by a party that were not raised
when the party made its initial objection below,
but stating that plain error would not apply in the
case at hand because admission of the evidence at
issue depended on balancing probative value and
prejudicial effect, which is the province of the trial
court (citing State v. Iaukea, 56 Haw. 343, 349,
537 P.2d 724, 729 (1975)).
[136 Hawai'i 9]
Appellate courts consider three factors to
determine whether justice requires review of an
issue not raised below for plain error: (1) “whether
the issue is of great public import”; (2) “whether
consideration of the issue ... requires additional
facts”; and (3) “whether its resolution will affect
the integrity of the trial court's findings of fact.” In
re Pub. Utils. Comm'n, 125 Hawai‘i 210, 218, 257
P.3d 223, 231 (App.2011) (quoting Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai‘i
450, 458, 40 P.3d 73, 81 (2002)) (explaining that
courts should only invoke the doctrine of plain
error “sparingly” in civil cases); see also Liftee v.
Boyer, 108 Hawai‘i 89, 98, 117 P.3d 821, 830
(App.2004) (declining to exercise plain error
review where one of the three Okada factors was
not present).
Here, plain error review is unwarranted. First, the
issue presented is not one of “great public import”
because the exclusion of Van Dina's deposition
testimony did not affect the public interest.
Alvarez Family Trust v. Ass'n of Apartment
Owners of Kaanapali Alii, 121 Hawai‘i 474, 491,
221 P.3d 452, 469 (2009) (“[I]n civil cases, an
issue is of ‘great public import’ for the purposes of
plain error review only when such issue affects the
public interest.”).9 Second, the parties conceded
that Noguchi never established “unavailability” of
the deposition witnesses pursuant to HRE Rule
804(a), so “consideration of the issue not raised at
trial requires additional facts.” Liftee, 108 Hawai‘i
at 98, 117 P.3d at 830; cf., State v. Lee, 83 Hawai‘i
267, 925 P.2d 1091 (1996) (finding that
prosecution's speculation about difficulty of
136 Haw. 372 (Haw. Ct. App. 2015)
locating witness did not relieve it of its obligation
to attempt to show legal “unavailability”). Third,
in this case, resolution of the non-raised issue (i.e.,
by ruling that the deposition testimony should
have been admitted under HRE Rule 804(b)(1)) is
unlikely to “affect the integrity of the [jury]'s
findings,” Liftee, 108 Hawai‘i at 9.8, 117 P.3d at
830, but only because, as explained below, the
testimony was redundant. Consequently, Noguchi
was not prejudiced by its exclusion, and plain
error review is unwarranted.
9 Compare Montalvo v. Lapez, 77 Hawai‘i
282, 291, 884 P.2d 345,354 (1994)
(holding that the court's failure to instruct
the jury on the correct meaning of an
element was so essential as to threaten the
integrity of our jury system); and Fujioka
v. Kam, 55 Haw. 7, 9, 514 P.2d 558, 570
(1973) (constitutionality of a statute was a
matter of “great public import”); and
Kobashigawa v. Silva, 126 Hawai‘i 62, 66,
266 P.3d 470, 474 (App.2011) (trial court's
“incorrect statement of the law in its
instruction to the jury” was an issue of
great public import), aff'd, 129 Hawai‘i
313, 300 P.3d 579 (2013); with Cnty. of
Haw. v. C & J Coupe Family Ltd. P'ship,
124 Hawai‘i 281, 305, 242 P.3d 1136, 1160
(2010) (“Whether the court correctly
valued the property in Condemnation 2 is
not of general public importance.”).
B. Even if the circuit court erred in excluding the
hearsay evidence, any error in doing so was
harmless because Noguchi experienced no
prejudice as a result.
The majority notes that Van Dina testified in his
deposition that, if AIU had timely received notice
of the IRS subpoena in May 2008 instead of
February 2009, “AIU would still not have covered
Pflueger because a Grand Jury subpoena is not a
‘claim’ within the meaning of the AIU policy.”
Based on this, the majority concludes that, “[b]y
excluding the [deposition] testimony, the circuit
court disregarded rules or principles of law to
10
 Pflueger, Inc. v. Noguchi & Assocs., Inc.
Noguchi's substantial detriment.”10 However, even
if the circuit court erred in sustaining Pflueger's
objection and excluding Van Dina's deposition
testimony, I would still hold that the error was not
prejudicial where the relevant details from that
testimony were put before the jury through other
admitted evidence. See State v. Rivera, 62 Haw.
120, 128, 612 P.2d 526, 531–32 (1980) (“[E]ven
where error occurs, there will be no reversal where
on the record as a whole, no prejudice to appellant
has resulted.” (citing Kekua v. Kaiser Found.
Hosp., 61 Haw. 208, 218, 601 P.2d 364, 371
(1979))).
10 Furthermore,
although the majority
observes that Ngeo testified in her
deposition that she agreed with Van Dina's
opinion “that there's no claim,” Ngeo's
referenced testimony appears irrelevant to
the argument since the circuit court ruled
initially, before subsequently granting
Pflueger's hearsay objection, that any
potential Ngeo testimony would be limited
to the AIU corporate structure because
Ngeo had not reviewed the Pflueger
submission contemporaneously with Van
Dina. Thus, Ngeo would not have been
permitted to offer the referenced testimony.
Noguchi does not address Pflueger's
harmless error/cumulative argument. The
majority states that Van Dina and Ngeo's
testimonies “directly contradict” the claim.
[136 Hawai'i 10]
Indeed, “[e]ven an erroneous exclusion of relevant
evidence does not necessarily call for reversal of
the trial court, if no prejudice results [; a]nd where
essentially the same evidence is given by other
witnesses or other means, the trial court's
exclusion of the relevant evidence consitutes
harmless error.” Wakabayashi v. Hertz Corp., 66
Haw. 265, 272, 660 P.2d 1309, 1314 (1983) (citing
Kekua, 61 Haw. at 218–19, 601 P.2d at 371); see
also Ching v. Valencia, No. 27331, 2008 WL
3919892, at *1 n.12 (Hawai‘i Aug. 27, 2008)
(citing HRS § 641–16 (1993); State v. Rivera, 106
136 Haw. 372 (Haw. Ct. App. 2015)
Hawai‘i 146, 165–66, 102 P.3d 1044, 1063–64
(2004), abrogated on other grounds by State v.
Maugaotega, 115 Hawai‘i 432, 168 P.3d 562
(2007); and Wakabayashi, 66 Haw. at 272, 660
P.2d at 1314). Here, Noguchi's own expert,
Schratz, testified that he had reviewed Van Dina's
letter in addition to his review of the deposition
transcripts.11 The majority recognizes that
Schratz's testimony referenced Van Dina's
conclusion-that AIU would not have recognized
the grand jury subpoenas as a claim under the
Policies even if they were submitted at the time
that Pflueger submitted them to Noguchi-and
concludes that AIU still would have been incorrect
in denying coverage on that basis.
11 Specifically, during Schratz's trial
testimony, he confirmed that he reviewed
the Van Dina and Ngeo depositions and
that his opinions were based on those
depositions.
It is not clear why Schratz's testimony, which
describes and discusses Van Dina's conclusion,
“does not adequately substitute [for] the testimony
likely to have been provided by Van Dina .... [and]
is insufficient to render the exclusion of Van
Dina's ... testimon[y] as non-prejudicial” merely
because it criticizes Van Dina's conclusion.
Moreover, Noguchi's defense depended on
Schratz's conclusion that Van Dina was wrong and
on other exhibits establishing that AIU would
likely have denied coverage regardless of when
Pflueger tendered the subpoenas. Indeed, these
facts arose multiple times throughout the trial. So
too did the fact that the circuit court made a pre-
trial ruling that the grand jury subpoenas were
claims under the Policies. Therefore, since the
sum of that evidence was already before the jury, I
would hold that Noguchi was not prejudiced by
the trial court's decision to exclude the proposed
designations from Van Dina's deposition
testimony.
11
 Pflueger, Inc. v. Noguchi & Assocs., Inc. 136 Haw. 372 (Haw. Ct. App. 2015)

Based on the foregoing, I would affirm the circuit

court's July 11, 2014 Amended Final Judgment as
to All Claims and All Parties.

12