Soroka v. City and County of Honolulu

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
02-MAY-2025
07:52 AM
Dkt. 207 AMSDO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CHRISTINE SOROKA, Plaintiff/Counterclaim Defendant-Appellant, v.
CITY AND COUNTY OF HONOLULU, a municipal corporation,
Defendant/Counterclaimant-Appellee,
and CLARENCE F. NEVES, JR., Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE BUSINESS ENTITIES 1-10;
DOE NON-PROFIT CORPORATIONS 1-10; and DOE
GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 17-1-0339-02 JMT)

AMENDED SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and McCullen, JJ.)

This appeal arises out of a dispute concerning a motor
vehicle collision involving a Honolulu Police Department (HPD)
vehicle, brought by Plaintiff/Counterclaim Defendant-Appellant
Christine Soroka (Soroka) against Defendant/Counterclaimant-
Appellee City and County of Honolulu (the City) and Defendant-
Appellee Clarence F. Neves, Jr., an HPD officer (Officer Neves)
(together, Defendants). Soroka appeals from the Judgment entered
on September 8, 2020, in the Circuit Court of the First Circuit
(Circuit Court).1/
Soroka alleged in her Complaint that Officer Neves,
while driving south on Puuloa Road in Honolulu, negligently
crashed his marked HPD vehicle into the vehicle Soroka was

1/
The Honorable John M. Tonaki presided.
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driving, causing her serious bodily injury. As relevant to this
appeal, following a jury trial, judgment was entered in favor of
Soroka and against the City on Count I of her Complaint, for
negligence. Soroka was awarded damages in the amount of
$347,000.00, which were reduced by 46% for comparative negligence
and an additional 40% for apportionment of Soroka's pre-existing
injury or condition, for a total award in her favor and against
the City in the amount of $112,428.00. Pursuant to the Circuit
Court's "Amended Findings of Fact, Conclusions of Law, and Order
Granting Defendants['] . . . Motion to Dismiss Counterclaim"
(Order Dismissing Counterclaim), entered on September 4, 2019,
the City's counterclaim was dismissed with prejudice.
On appeal, Soroka contends that the Circuit Court erred
in: (1) allowing Defendants to present evidence of Soroka's
alleged comparative negligence, where the dismissal of the City's
counterclaim against Soroka "amounted to an adjudication on the
merits"; (2) allowing HPD officers to express various legal
opinions; (3) preventing Soroka's counsel from asking leading
questions of City employees; (4) allowing the testimony of the
defense's accident reconstruction expert Wayne Slagle, and
failing to strike his testimony due to the defense's violation of
the witness exclusionary rule; (5) excluding relevant evidence;
(6) prohibiting Soroka's expert witness, Peter W. Rossi, M.D.,
from testifying that the approximate total amount of Soroka's
medical bills were "[n]ormal, [u]sual, [c]ustomary, and
[r]easonable"; (7) allowing Officer Neves's counsel to ask him
"highly suggestive leading questions"; (8) giving jury
instruction nos. 7.3 and 8.9 and the verdict form to the jury,
which were "misleading and unduly prejudiced [Soroka]"; (9)
allowing the defense's expert witness, Martin Blinder, M.D., to
state opinions as to Soroka's credibility; (10) denying Soroka's
motion for a new trial; and (11) denying Soroka's motion for
prejudgment interest.2/ (Capitalization altered.)

2/
We note that Soroka's Amended Opening Brief fails to comply in
material respects with Hawai#i Rules of Appellate Procedure (HRAP) Rule
28(b)(4) and (7). In particular, Soroka makes numerous factual assertions and
arguments without any supporting references to the record. The argument
section is often conclusory and difficult to discern. Soroka's "failure to
(continued...)

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After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Soroka's contentions as follows, and vacate.
(1) Soroka contends that the Circuit Court abused its
discretion by allowing the City to present evidence of Soroka's
comparative negligence at trial. Soroka argues that the Circuit
Court's dismissal of the City's counterclaim against Soroka with
prejudice amounted to an adjudication on the merits and thus
foreclosed any question of Soroka's comparative negligence.
Soroka's argument appears to be rooted in the doctrine of res
judicata.
The City alleged in its counterclaim that the disputed
collision occurred as Soroka was exiting a Wendy's restaurant,
while making a left turn to go north on Puuloa Road, and that she
negligently collided with Officer Neves's southbound vehicle.
The counterclaim sought damages caused to the City's police
vehicle by Soroka's alleged negligence, and a determination of
Soroka's relative and comparative fault, if the City were found
to be negligent in connection with the collision. On July 18,
2019, about three months prior to trial, the City moved to
dismiss the counterclaim pursuant to Hawai#i Rules of Civil
Procedure Rule 41. At the hearing of the motion, the Circuit
Court made clear that the dismissal of the counterclaim would not
affect the City's defenses of contributory negligence and
comparative negligence, which the City had asserted in response
to Soroka's claims. The court subsequently entered the Order
Dismissing Counterclaim, which expressly concluded:

The counterclaim filed in the instant matter is based
on relative liability and not subject to summary disposition
because (a) per the allegations, . . . Soroka was executing

2/
(...continued)
comply with HRAP Rule 28(b)(4) is alone sufficient to affirm the circuit
court's judgment." Morgan v. Planning Dep't, Cty. of Kauai, 104 Hawai #i 173,
180, 86 P.3d 982, 989 (2004) (citing Schefke v. Reliable Collection Agency,
Ltd., 96 Hawai#i 408, 420, 32 P.3d 52, 64 (2001)). Nevertheless, we have
"consistently adhered to the policy of affording litigants the opportunity 'to
have their cases heard on the merits, where possible.'" Morgan, 104 Hawai #i
at 180–81, 86 P.3d at 989–90 (quoting O'Connor v. Diocese of Honolulu, 77
Hawai#i 383, 386, 885 P.2d 361, 364 (1994)). We thus address Soroka's
arguments to the extent discernible.

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a left turn into traffic, and (b) [Officer Neves] was
already in a lane to which [Soroka] was legally obliged to
yield. Accordingly, contributory and comparative negligence
remain available defenses.

"By definition, the doctrine of res judicata only
applies to new suits: It is inapplicable in a continuation of
the same suit." PennyMac Corp. v. Godinez, 148 Hawai#i 323, 327,
474 P.3d 264, 268 (2020) (citing 18 Charles Alan Wright, Arthur
R. Miller, & Edward H. Cooper, Federal Practice & Procedure
§ 4404 (3d ed. 2020)). Accordingly, res judicata does not apply
here.
In any event, the Circuit Court plainly decided in
dismissing the City's counterclaim that the affirmative defenses
of contributory and comparative negligence were preserved and
could be asserted by the City at the trial of Soroka's claims.
On this record, we cannot say that the Circuit Court abused its
discretion under HRCP Rule 41(a)(2) in dismissing the
counterclaim "upon such terms and conditions as [it] deem[ed]
proper." Soroka's contention lacks merit.
(2) Soroka contends that the Circuit Court erred in
allowing HPD Corporal Adam Lipka (Lipka) and HPD Officer Nicholas
Schlapak (Schlapak) to express legal opinions at trial.
Specifically, she contends that the officers should not have been
allowed to provide expert opinion on the proper place to stop
when exiting the Wendy's driveway, and that this error "severely
prejudiced" Soroka. Soroka further argues that the Defendants
did not disclose the officers as expert witnesses and did not
produce expert reports for either witness.
Officer Schlapak witnessed and responded to the
collision. Corporal Lipka later investigated it. During trial,
Deputy Corporation Counsel for the City (DCC) questioned Officer
Schlapak about Exhibit 15, an enlarged Google Maps image of
Puuloa Road and the Wendy's driveway, as follows:

Q So Officer Schlapak, you may step down to look
at . . . the enlarged Exhibit D-15 that I have just
published to the jury again.
And do you recognize what's shown in this Google
image?
. . . .

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A This is Puuloa Road. This is the driveway to
the Wendy's fast-food restaurant. And this is the Wendy's
fast-food restaurant itself.
. . . .

Q And -- now, as a police officer, are you
familiar with the traffic laws of the State of Hawaii?
A Yes.

Q Have you issued citations for the violations of
such laws?
A I have issued citations in the past.

. . . .
[SOROKA'S COUNSEL]: Your Honor, may we
approach?

THE COURT: All right.
. . . .

[SOROKA'S COUNSEL]: Your Honor, I believe she's
going to try to elicit testimony as to what the plaintiff
should or should not have done, and that would call for a
legal conclusion. He's not an expert. He's not qualified
to say what she should have done or should not have done.
And it's unduly prejudicial and irrelevant.
[DCC]: I'm going to have him explain what the
markings on the street are. I mean, he does issue traffic
citations, and he would know what the lines on the street
mean.
THE COURT: All right. But unless . . .
plaintiff has actually been cited by him, then his
conclusions as to any possible traffic offenses would be
legal conclusions.

[DCC]: Oh, I'm not going to have him testify
about the legal conclusion. It was just to establish that
he is aware of the traffic laws in the State of Hawaii.
THE COURT: I understand. We'll just break at
this point.

(Emphases added.)
After the break, DCC continued to question Officer
Schlapak as follows:

Q So Officer Schlapak, looking at Exhibit D-15
. . ., can you identify what the slanted lines are that are
on both sides of the Wendy's driveway in the image? And you
can step down and point to it so that we know that you're
pointing at what I'm referring to.

A The slanted lines here and here?
Q Yes. Can you tell us what those are?
A That's considered to be a marked safety zone.

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Q Okay. And then what about the dashed –
[SOROKA'S COUNSEL]: Excuse me, Your Honor. May
we approach the bench?
THE COURT: All right. Counsel, approach.

. . . .
[SOROKA'S COUNSEL]: Before the break[, we
talked] about whether he's going to offer opinions on the
law as to what a person should or should not do. And I
think it's unduly prejudicial under 402, 403.
[DCC]: He's aware of traffic laws. He's a
patrol officer. He understands street markings.
. . . .
THE COURT: All right. Well, the predicate is
just whether these are official City and County markings or
State markings. He's not rendering opinions on the law.
291C, subparts. . . . Given the proper foundation, only
reciting the actual statutes, that's not the same as
rendering an opinion as to whether someone broke the law.
[SOROKA'S COUNSEL]: This is not something he
offered in his deposition, and he's not listed as an expert.
It seems to me he's giving an expert opinion.

THE COURT: It's something that's -- you don't
have to be an expert. . . . So I'm finding it's consistent
with 291C, which I'll have open here. And I'll allow it.
It's the law.

. . . .
BY [DCC]:

Q Now, there are some dashed lines that are in
front of the Wendy's driveway that connect the two sections
of slanted lines. Can you point that out to the jury. Do
you --

A Are you referring to these?
Q Yes. Now, can you trace that -- those dash
lines with your blue pen.
A Yes.

Q Just so that it's more visible on the poster
board. What are those dashed lines for?
A They indicate the stop line, ma'am.

(Emphases added.)
We note that Officer Schlapak was not "only reciting
the actual statutes." He testified that the dashed white line
past the end of the Wendy's driveway "indicate[d] the stop
line[.]" It does not appear that any part of HRS § 291C
identifies a dashed (or broken) white line such as this as a

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"stop line" or any other required stopping place. See, e.g., HRS
§ 291C-38 (addressing "[l]ongitudinal traffic lane markings").
And to the extent Officer Schlapak may have been providing his
interpretation of any state or local traffic law, he was applying
that interpretation to the facts of this case, i.e., the broken
white line that Soroka's vehicle crossed immediately before the
collision.
In his trial testimony, Corporal Lipka similarly
applied his interpretation of the law to the facts of the case.
Referring to Exhibit 15, DCC questioned Officer Corporal Lipka as
follows:

Q. Okay. Also what about the dashed line in front
of the driveway?
A The dashed line in front of the driveway, that's
a marker showing the edge of the lane of travel.

Q Now, can you tell us what the purpose of the
line is, the dashed line in front of the -- the driveway.

A So the purpose of the dashed line is safety –

[SOROKA'S COUNSEL]: Objection. Same objection.
THE COURT: All right. Overruled. Understood.

Q Now, can you explain again what the dashed lines
in front of the driveway is for?

A So the purpose of how these have been put on the
pavement there is to provide a safety zone for cars pulling
out of that driveway to be able to pull out far enough where
traffic isn't going to interfere with their ability to pull
out onto the road safely there or any kind of obstructions
on the side of the road.

Q Are there any laws governing how a vehicle exits
a driveway onto a roadway?
A Yes. There's one specific law under the 291C
for unsafe emerging from driveways.

Q Is that 291C-64?
A I guess, yes.
. . . .

Q Can you tell us what that law provides?
A So essentially it means the vehicles on the
roadway have the right of way, not the one emerging from the
driveway. And as such, you must yield onto oncoming traffic
before entering the roadway.

(Emphasis added.) In reference to Exhibit 15, the latter

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statement is plainly a legal conclusion regarding the facts at
issue.3/
In Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 81
Hawai#i 512, 522 n.4, 918 P.2d 1168, 1178 n.4 (App. 1996), this
court stated that "there is a strong consensus among the
jurisdictions, amounting to a general rule, that witnesses may
not give an opinion on a question of domestic law or on matters
which involve questions of law." Relatedly, in Lahaina Fashions,
Inc. v. Bank of Hawaii, 131 Hawai#i 437, 454, 319 P.3d 356, 373
(2014), the Hawai#i Supreme Court ruled that the testimony of a
bank executive, who was also an attorney, that the bank and other
respondents owed a fiduciary duty to the petitioner, amounted to
a legal conclusion that could not raise a fact issue to defeat a
motion for judgment as a matter of law. In so ruling, the court
quoted Create 21 for the rule that "[e]xpert or non-expert
opinion that amounts to a conclusion of law cannot be properly
received in evidence . . . ." Id. (quoting 81 Hawai#i at 522,
918 P.2d at 1178); see Samson v. Nahulu, 136 Hawai#i 415, 429,
363 P.3d 263, 277 (2015) ("Generally, a witness is permitted to
give an opinion on an ultimate fact involved in the case, but may
not give opinions on questions of law as that would amount to
legal conclusions.")
This is precisely what happened here. The testimony of
Officer Schlapak and Corporal Lipka, taken together, amounted to
a legal conclusion that a driver (i.e., Soroka) exiting Wendy's
was required to stop at the dashed line past the end of the
driveway, and yield the right-of-way to traffic on Puuloa Road.
We further conclude that the Circuit Court's error in
admitting this evidence resulted in substantial prejudice to
Soroka's rights. See Hawai#i Rules of Evidence (HRE) Rule

3/
We note that during the hearing on "Defendants['] . . . Motion in
Limine No. 6 to Exclude [Soroka's] Expert Testimony," Soroka argued in part
that Corporal Lipka should not be allowed to express an opinion "about where
[Soroka] should have been, or where she should have stopped[,]" because "he's
not an expert." Soroka further argued that Corporal Lipka should be precluded
from testifying "about . . . what the law is" and from "giv[ing] opinions
about whether a law was violated." The Circuit Court appeared to conclude
that Corporal Lipka could provide an opinion "properly within the scope of his
expertise, . . . as long as it's clear that the witness is not drawing a legal
conclusion[,]" but that "[t]his is beyond the scope . . . of this exact
motion."

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103(a); In re Est. of Herbert, 90 Hawai#i 443, 462, 979 P.2d 39,
58 (1999). Defendants argued to the jury in closing that Soroka
was negligent and "the proximate cause of th[e] accident." In
support of this argument, Defendants repeatedly asserted that
Soroka "exit[ed] the driveway of the Wendy's without stopping at
that dashed line"; "violated [Officer Neves's] right of way when
she rolled into the roadway without stopping at those skip-dash
lines"; and "entered the roadway without stopping at that dashed
line." Defendants also referred to Corporal Lipka's testimony in
arguing that because Soroka failed to "stop at that skip-dash
line[,] . . . she is the proximate cause of this accident." The
jury found that Soroka was negligent, assigned 46% of the
responsibility for the collision to her, and determined that her
negligence was a legal cause of her injury. In these
circumstances, the legal conclusions expressed by Officer
Schlapak and Corporal Lipka in their testimony could have
persuaded the jury to conclude that Soroka violated the law in
exiting the Wendy's driveway, which was evidence of her alleged
negligence in causing the collision. At a minimum, the
inadmissible legal conclusions could have prejudicially affected
the jury's assignment of 46% of the responsibility for the
collision to Soroka. On this record, Soroka has established that
the Circuit Court's error substantially prejudiced her rights.
The judgment on Count I must therefore be vacated and remanded
for a new trial.
(3) Soroka argues that the Circuit Court erred in
preventing her from asking Officer Schlapak, whom she called as
an adverse witness, leading questions on cross-examination based
on HRE Rule 611(c) and Haney v. Mizell Mem'l Hosp., 744 F.2d
1467, 1478 (11th Cir. 1984).
However, it is well settled that

"Matters regarding the examination of witnesses are
within the discretion of the trial court[.]" The Nature
Conservancy v. Nakila, 4 Haw. App. 584, 596, 671 P.2d 1025,
1034 (1983) (citations omitted).

Under this standard, we will not disturb the trial
court's exercise of its discretion unless it is
clearly abused. 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

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to the substantial detriment of a party-litigant.
State v. Jackson, 81 Hawai#i 39, 47, 912 P.2d 71, 79 (1996)
(citations and quotation marks omitted).

State v. Pham, No. CAAP-XX-XXXXXXX, 2017 WL 2829281, at *6 (Haw.
App. June 30, 2017).
Soroka's bare assertion that she was unable to elicit
truthful testimony from Officer Schlapak, without more, does not
demonstrate that the Circuit Court abused its discretion.
Officer Schlapak works for the City, making him an adverse
witness. However, Soroka's counsel was able to ask Officer
Schlapak questions and some of the objections based on leading
questions were overruled; Soroka points to nothing indicating
that Officer Schlapak's answers were incomplete, evasive,
inaccurate, or untruthful. Soroka fails to articulate how asking
leading questions (or which leading questions) would have changed
any of Officer Schlapak's answers or established additional
evidence. Under these circumstances, we cannot conclude that the
the Circuit Court abused its discretion.
(4) Soroka argues that the Circuit Court erred when it
refused to strike Wayne Slagle's testimony after Soroka elicited
testimony from Slagle indicating the City provided him with
information regarding the testimony of Soroka's expert, David
Karlin. Soroka argues that providing Slagle such information
gave him the opportunity to potentially alter his testimony,
thereby violating the witness exclusionary rule.
In State v. Alongi, No. CAAP-XX-XXXXXXX, 2022 WL
5431758, at *4, *6 (Haw. App. Oct. 7, 2022), we explained:

"The purpose of HRE Rule 615 is to prevent the shaping of
testimony by one witness to match that of another, and to
discourage fabrication and collusion."
. . . .

. . . Noncompliance with HRE Rule 615 does not require
a new trial "unless the court's decision to allow the
allegedly tainted testimony was an abuse of discretion or
resulted in prejudice to the defendant." "The defendant has
the burden of proving that there was either prejudice or an
abuse of discretion."

Id. (citations omitted) (quoting State v. Elmaleh, 7 Haw. App.
488, 492-94, 782 P.2d 886, 889-90 (1989)).

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Soroka has not demonstrated how the City's briefing of
Slagle on Karlin's testimony altered Slagle's testimony. Soroka
makes no argument as to how such briefing was prejudicial nor
makes a showing that allowing Slagle's testimony was an abuse of
discretion. Moreover, Soroka's counsel extensively cross-
examined Slagle regarding his discussions with the City leading
up to his testimony. The jury had the opportunity to hear this
examination, and to determine for itself whether Slagle's
testimony had been improperly influenced by any conversations he
had with the City regarding Karlin's testimony. We cannot
conclude that the Circuit Court abused its discretion in
declining to strike Slagle's testimony.
Soroka also asserts that the Circuit Court erred in
allowing Slagle "to testify as to what the law requires."
(Capitalization altered.) Soroka fails to identify the
challenged testimony and to make a discernible argument.
Therefore, we conclude that this argument is waived. HRAP Rule
28(b)(7).
(5) Soroka argues that the Circuit Court abused its
discretion by preventing her from presenting "the best evidence
available" regarding the conditions surrounding the collision,
i.e., a surveillance video, which Soroka admits does not depict
the collision itself. This argument is without merit for several
reasons, including but not limited to the fact that the video was
not timely disclosed as a trial exhibit in violation of court
rules and the Circuit Court's order requiring the exchange of
trial exhibits by September 23, 2019. Moreover, Soroka was
allowed to present still photos from the video and makes no
cogent argument as to how she was prejudiced by being limited to
still photos that showed the scene of the collision, rather than
a video, which had missing frames, light enhancements, and did
not show the accident.
(6) Soroka contends that the Circuit Court erred by
prohibiting her neurologist, Dr. Rossi, from testifying regarding
his opinion that the approximate total amount of Soroka's medical
bills resulting from the injury were "normal, usual, customary,
and reasonable."

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HRE Rule 602 provides:

Lack of personal knowledge. A witness may not testify
to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of
the matter. Evidence to prove personal knowledge may, but
need not, consist of the witness'[s] own testimony. This
rule is subject to the provisions of rule 703, relating to
opinion testimony by expert witnesses.

HRE Rule 703 provides:

Bases of opinion testimony by experts. The facts or
data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known
to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence. The court may,
however, disallow testimony in the form of an opinion or
inference if the underlying facts or data indicate lack of
trustworthiness.

Here, Soroka did not lay the proper foundation for Dr.
Rossi to testify to the reasonableness of Soroka's medical
expenses. In fact, Dr. Rossi expressly disqualified himself as
an expert in evaluating the costs of medical expenses, stating,
inter alia: "I have no formal training as a medical economist;"
"I'm not a medical economist;" and "I cannot say that the charges
were what they should have been . . . I don't do that. I don't
have that expertise." We conclude that the Circuit Court did not
err when it sustained the City's objection to Dr. Rossi's
testimony regarding the reasonableness of Soroka's medical
expenses.
(7) Soroka argues that the Circuit Court abused its
discretion in allowing the City to ask Officer Neves leading
questions. The City points out that Soroka did not object to
specific questions that she now asserts were improper on appeal.
HRE Rule 611 provides, in part:

(a) Control by court. The court shall exercise
reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption
of time, and (3) protect witnesses from harassment or undue
embarrassment.

. . . .

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(c) Leading questions. Leading questions should not
be used on the direct examination of a witness except as may
be necessary to develop the witness' testimony. Ordinarily,
leading questions should be permitted on cross-examination.
When a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party, interrogation may
be by leading questions.

The Circuit Court had the discretion to allow the City
to ask leading questions here. Moreover, Soroka fails to
identify how she was prejudiced by the testimony. We conclude
that this point of error is without merit.
(8) Soroka argues that the jury instructions and
special verdict form were misleading and unduly prejudicial,
warranting a new trial. Soroka argues that the Circuit Court
should have provided the jury with an instruction indicating that
the concept of "right of way d[id] not apply in this case[,]"
citing State v. Arena, 46 Haw. 315, 329, 379 P.2d 594, 603
(1963), overruled by Samson v. Nahulu, 136 Hawai#i 415, 363 P.3d
263 (2015) (stating a driver exercising a right-of-way may still
be determined to have been negligent).
As an initial matter, we note that Soroka does not
point to any proposed jury instruction based on Arena that she
submitted to the Circuit Court for consideration. It appears she
made only a "[b]y the way" request to the court for a non-
specific Arena instruction while the parties were settling jury
instructions before closing arguments. On appeal, Soroka makes
no discernible argument as to exactly what instruction she
sought. See HRAP Rule 28(b)(7). Additionally, Soroka does not
cite to any of the jury instructions that were actually given and
explain how they were erroneous or misleading.
In any event, Arena is wholly distinguishable on a
number of bases, including that this case involved an authorized
emergency police vehicle responding to a Priority 1 call. The
law is clear that emergency police vehicles in these situations
have privileges like exceeding the speed limit, regardless of
whether they use their signals, subject to the conditions and
limitations set forth in HRS § 291C-26. See, e.g., HRS § 291C-
26(b)(3), (d); see also HRS § 291C-65(b).
Upon review, we conclude that the special verdict form
was not confusing. It asked for the "total" amount of damages,

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and later separately asked the jury to decide what portion of
Soroka's damages are attributable to the pre-existing condition.
The jury instructions did not conflict with the special verdict
form. Nothing in the record indicates the form was
"prejudicially insufficient, erroneous, inconsistent, or
misleading." See Weite v. Momohara, 124 Hawai#i 236, 259, 240
P.3d 899, 922 (App. 2010) (quoting Tabieros v. Clark Equip. Co.,
85 Hawai#i 336, 350, 944 P.2d 1279, 1293 (1997)).
(9) Soroka argues that the Circuit Court erred in
allowing the City's expert witness, Dr. Blinder, to testify as to
Soroka's credibility. However, Soroka never objected to nor
moved to strike Dr. Blinder's testimony at trial. Accordingly,
Soroka did not properly preserve her claim about Dr. Blinder's
attack on her credibility, and "waived h[er] ability to challenge
the statements under HRE Rule 103(a)(1), which states that
'[e]rror may not be predicated upon a ruling which admits . . .
evidence unless a substantial right of the party is affected, and
. . . a timely objection or motion to strike appears on the
record.'" State v. Engelby, 147 Hawai#i 222, 232, 465 P.3d 669,
679 (2020) (emphasis omitted) (citing State v. Metcalfe, 129
Hawai#i 206, 224, 297 P.3d 1062, 1080 (2013) (point on appeal was
forfeited because defense did not object to expert's testimony at
trial)).
This argument was waived.
(10) Soroka argues that the Circuit Court erred in
denying her motion for a new trial without explaining its reasons
for denying the motion. In light of our ruling that this case
will be remanded for a new trial on other grounds, we need not
reach this issue.
(11) Soroka argues that the Circuit Court abused its
discretion by denying her motion for prejudgment interest. As
this case will be retried, we decline to reach this issue,
without prejudice to a renewed request for prejudgment interest
upon conclusion of the new trial.
Because Defendants are no longer the prevailing
parties, we vacate the Circuit Court's award of costs to

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Defendants.4/ See Ass'n of Owners of Kalele Kai v. Yoshikawa, 149
Hawai#i 417, 421, 493 P.3d 939, 943 (2021).
For the reasons discussed above, we vacate the
following, entered in the Circuit Court of the First Circuit:
(1) the September 8, 2020 Judgment as to Count I of the Complaint
and the award of costs to Defendants; and (2) the May 18, 2020
"Order Granting in Part and Denying in Part Defendants City and
Couinty of Honolulu and Clarence F. Neves, Jr.'s Motion for
Taxation of Costs, Filed on December 9,2019." We affirm the
Judgment in all other respects. The case is remanded to the
Circuit Court for a new trial on Count I.

DATED: Honolulu, Hawai#i, May 2, 2025.

On the briefs:
/s/ Katherine G. Leonard
John S. Edmunds and Acting Chief Judge
Michael J.Y. Wong
for Plaintiff-Appellant.
/s/ Clyde J. Wadsworth
Monica K.S. Choi, Associate Judge
Page C. Ogata, and
Nicolette Winter,
Deputies Corporation Counsel, /s/ Sonja M.P. McCullen
City and County of Honolulu, Associate Judge
for Defendants-Appellees.

4/
On May 18, 2020, the Circuit Court entered an "Order Granting in
Part and Denying in Part Defendants['] . . . Motion for Taxation of Costs,
Filed on December 9,2019." The court awarded costs to Defendants in the
amount of $9,039.85, based on the determination that "Defendants are the
prevailing party, pursuant to Rule 25 of the Hawai #i Arbitration Rules."

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