LEAH CASTRO, individually and as PERSONAL REPRESENTATIVE of the ESTATE OF BRIANDALYNNE CASTRO, deceased minor, Respondent/Plaintiff-Appellee,
LEROY MELCHOR, in his official capacity; WANNA BHALANG, in her official capacity; TOMI BRADLEY, in her official capacity; STATE OF HAWAI'I; and HAWAI'I DEPARTMENT OF PUBLIC SAFETY, Petitioners/Defendants- Appellants, and AMY YASUNAGA, in her official capacity; ROBERTA MARKS, in her official capacity; KENNETH ZIENKIEWICZ, M.D., in his official capacity; and KEITH WAKABAYASHI, in his official capacity, Respondents/Defendants-Appellees.
TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000753; CIV.
Manuele Gaviganfor petitioners
Hansen for respondent Leah Castro
RECKTENWALD, C.J AND WILSON, J., WITH NAKAYAMA, J.,
CONCURRING SEPARATELY, AND McKENNA, J., WRITING SEPARATELY,
WITH WHOM POLLACK, J., JOINS
case arises from a complaint filed by Respondent Leah Castro
(Castro), who had a stillbirth while she was incarcerated.
Castro brought suit against Leroy Melchor, Wanna Bhalang,
Tomi Bradley (all in their official capacities), the State of
Hawai'i, and the Hawai'i Department of Public Safety
(HDPS) (together, "Petitioners") for negligence,
intentional infliction of emotional distress, and negligent
infliction of emotional distress. Castro asserted that
Petitioners' failure to provide her with timely and
adequate medical care led to the stillbirth of her child,
bench trial, the Circuit Court of the First Circuit ruled in
Castro's favor, awarding her $250, 000 for negligent
infliction of emotional distress and $100, 000 for loss of
filial consortium, and awarding $250, 000 to
Briandalynne's estate "for the loss of life itself
and for all of the damages that [Briandalynne] would have
been entitled to had she been alive, such as loss of
enjoyment of life." The Intermediate Court of Appeals
(ICA) affirmed the circuit court's decision. Castro
v. Melchor, 137 Hawai'i 179, 366 P.3d 1058 (App.
Petitioners' application presents a question of first
impression to this court: whether the estate of a viable
fetus can recover for loss of enjoyment of life, also known
as "hedonic, " damages. We conclude that
Briandalynne's estate could recover such damages against
Petitioners, and that the record supports the amount of the
damages awarded. Accordingly, we affirm the ICA's
judgment on appeal.
Factual Allegations and Circuit Court Proceedings
filed a Complaint in her own capacity, and as personal
representative of the Estate of Briandalyne, in circuit court
on May 6, 2008, alleging assault and battery, negligence, and
intentional and negligent infliction of emotional distress
against the State of Hawai'i, the HDPS, and two
correctional officers at O'ahu Community Correctional
Center (OCCC) in their official capacities.
Complaint alleged that on June 30, 2007, while Castro was an
inmate at OCCC, she was forced to the ground, or "taken
down, " by correctional officers Debra Pimental and Ted
Choy Foo. Castro was approximately seven months pregnant at
the time. After the incident, Castro was transferred to the
Women's Community Correctional Center (WCCC). Castro
developed problems with vaginal bleeding, which she reported
to staff at both OCCC and WCCC, but "was not provided
with timely or adequate medical care."
alleged that the actions of the correctional officers and the
subsequent failure of medical personnel to provide her with
treatment caused the stillbirth of her eight-month-old fetus,
Briandalynne. Briandalynne was delivered stillborn on August
10, 2007, at the Kapi'olani Medical Center. Available
medical records indicated that Briandalynne's death was
caused by "significant fetal stress" and
"hypoxia." Castro contended that the actions of
correctional officers Pimental and Choy Foo constituted
assault and battery upon her and her unborn fetus.
also contended that Pimental, Choy Foo, the State, and HDPS
were negligent because they "knew or should have
known" that Castro was pregnant, and that they
"breached their duty of reasonable care by failing to
protect [Castro] and her unborn child from harm." Castro
additionally asserted that the State and HDPS were liable for
"negligent hiring, training, supervision, and
retention" of the correctional officers who assaulted
her. Furthermore, she asserted that Officers Pimental, Choy
Foo, and other "responsible medical personnel"
intentionally inflicted emotional distress on her, and that
the State and HDPS negligently inflicted emotional distress
on her as well.
filed a First Amended Complaint on July 30, 2009, withdrawing
her claims against the correctional officers. In addition to
the State and HDPS, Castro added as defendants Leroy Melchor,
Wanna Bhalang, Tomi Bradley, Amy Yasunaga, Roberta Marks, and
Keith Wakabayashi, all of whom were nurses in the medical
unit at OCCC, as well as Kenneth Zienkiewicz, a physician at
the medical unit at OCCC. The individuals named in the First
Amended Complaint were each sued in their official
capacities. Castro raised claims of negligence against each
of the defendants, and claims of intentional and negligent
infliction of emotional distress against all defendants
except the State and HDPS.
defendants filed a motion for summary judgment, arguing,
inter alia, that there is no legal authority allowing Castro
to make a claim on behalf of the estate of a stillborn fetus.
The defendants pointed to Hawai'i Revised Statutes (HRS)
§ 663-3 (Supp. 2009),  "[d]eath by wrongful act[,
]" to argue that "there must be injury to a person
in order for a tort claim to lie." Defendants argued
that Briandalynne was not a person, as contemplated by the
statute; therefore, Castro could not make a claim on her
13, 2011, the circuit court issued its order granting in part
and denying in part the motion for summary
judgment. The court granted the motion "as to
all claims against Defendants Yasunaga, Marks, Zienkiewicz[,
] and Wakabayashi, " as well as "to all claims
brought by Plaintiff Leah Castro as Personal Representative
of the Estate of Briandalynne Castro." The court denied
the motion with respect to all other claims.
on October 14, 2011, the court issued an amended summary
judgment order sua sponte, reversing its previous
grant of summary judgment "with respect to all claims of
Plaintiff Leah Castro as Personal Representative of the
Estate of Briandalynne Castro." The court explained that
its sua sponte decision was based upon its belief
that its prior analysis was in error.
bench trial began on February 27, 2012. After the evidentiary
portion of the trial was completed, Castro filed a memorandum
regarding damages with the court. Castro explained that HRS
§ 663-3, the wrongful death statute, "governs
recovery by the decedent's survivors[, ]" and that
HRS § 663-7,  the survival statute, "governs
recovery for wrongful death by the estate of a
decedent." Castro asserted that because "[t]he
amount of recovery for the loss of life for the Estate of
Briandalynne Castro is ''determined from the
standpoint of the deceased, '" according to
Rohlfing v. Moses Akiona, Ltd., 45 Haw. 373, 381-83,
369 P.2d 96, 101 (1961), "the value of the life and the
loss of enjoyment of life of Briandalynne Castro are of the
nature and kind as of any other child born in our community[,
]" regardless of Castro's status as an incarcerated
inmate. Castro stated that the Estate of Briandalynne
Castro's damages claims include all the damages that
Briandalynne would have been entitled to had she been alive,
such as loss of enjoyment of life and pain and suffering,
before death occurred. With respect to Castro's claim for
negligent infliction of emotional distress, Castro asserted
that there was "ample evidence that a normally
constituted reasonable person would be unable to adequately
cope with the mental stress engendered by Defendants'
egregious conduct" and the resulting stillbirth. Castro
further added that the fact that she may not have been able
to raise or provide for her daughter while in prison "is
irrelevant with respect to [Castro's] mental and
emotional pain" caused by the stillbirth. Castro
requested that the court award her $400, 000 for her survivor
claims, $250, 000 for her emotional distress claims, $600,
000 for the Estate of Briandalynne Castro's wrongful
death claim, and $800 in special damages for the estate's
also submitted a post-trial memorandum regarding damages.
Petitioners first argued that damages should not be awarded
because Castro "has not and cannot prove a causal
connection between any alleged negligence of the State
Defendants and the stillbirth." Petitioners further
contended that any award of damages to Castro "must be
minimal" because her "conduct at all times prior to
the stillbirth was not the conduct of a mother who wanted her
baby." They additionally contended that Castro's
incarceration meant that "[t]here is absolutely no
evidence that [Castro] would have been able to raise her
child or have even been able to keep her child."
Petitioners concluded by arguing that "an award of $5,
000 or less would be an adequate amount to compensate
[Castro] for a stillbirth which is not a significant loss to
her and for which she has not suffered any emotional
court entered its Findings of Fact and Conclusions of Law and
Order on May 14, 2012, determining that the Petitioners'
negligence was the legal cause of Briandalynne's death.
The court made the following Findings of Fact
(FOFs)relevant to this appeal:
18. On July 2, 2007, Plaintiff was seen by OCCC nurse
practitioner, Amy Yasunaga, for her first pre-natal visit.
Ms. Yasunaga was the primary medical provider responsible for
treatment and care of pregnant inmates at OCCC.
19. Ms. Yasunaga ordered pre-natal vitamins, took
Plaintiff's vital signs, measured the fundus, listened to
the fetus's heart tones, and ordered an OBGYN
consultation and an ultrasound for Plaintiff at Kapiolani
Medical Center ("KMC" or "Kapiolani").
Ms. Yasunaga noted no abnormalities or concerns with
Plaintiff's pregnancy. Ms. Yasunaga noted Plaintiff's
last menstrual period was January 31, 2007.
20. On that same day, July 2, 2007, OCCC physician, Kenneth
Zienkiewicz, M.D., reviewed and approved Ms. Yasunaga's
orders for Plaintiff's KMC OBGYN consultation and
22. Both the KMC OBGYN consultation and ultrasound were never
done, during the relevant month-long period, from the time
Ms. Yasunaga issued the orders on July 2, 2007, until
Plaintiff's transfer out of OCCC on August 2, 2007.
23. Within several days of Plaintiff's July 2, 2007
pre-natal visit with Ms. Yasunaga, Plaintiff began
experiencing vaginal bleeding. Plaintiff made four to five
reports of her vaginal bleeding to various [Adult Corrections
Officers (ACOs)], including ACO Hattie Reis, ACO Wanda Nunes,
and ACO Reyetta Ofilas.
24. All three ACOs informed the OCCC medical unit of
Plaintiff s vaginal bleeding and requested medical attention,
but no medical care was provided. The medical unit's
response, relayed through the Nurse Defendants was, that if
Plaintiff's bleeding was not heavy enough to saturate a
sanitary pad, and/or not accompanied by cramping, Plaintiff
did not need to be sent to the medical unit.
27. Up until Plaintiff's transfer out of OCCC on August
2, 2007, Plaintiff did not receive any medical care for her
four to five complaints of vaginal bleeding, and was never
sent to the OCCC Medical Unit.
28. During Plaintiff's entire stay at OCCC, Plaintiff was
on segregation status, from July 2 to August 2, 2007. The
pertinent DPS and OCCC Policies and Procedures for medical
care for segregated inmates . . . were not followed, and no
medical staffer ever checked on, or communicated with
Plaintiff, about her bleeding complaints. Nor was Plaintiff
ever brought to the OCCC Medical Unit for evaluation of her
30. Plaintiff was transferred to WCCC on August 2, 2007.
According to WCCC nurse Jennifer Simeona, who conducted
Plaintiff's intake on that date, Plaintiff's
Interfacility Transfer Form from OCCC, did not contain any
information to let Nurse Simeona know, that the KMC OBGYN
evaluation and ultrasound ordered on July 2, 2007, were still
outstanding and never done. Any outstanding medical orders
should have been included on the form.
34. The WCCC midwife could not detect any fetal heart tones
from Plaintiffs fetus. Plaintiff "broke down"
crying but tried to not lose hope. The midwife ordered that
Plaintiff be immediately transported to KMC.
35. Plaintiff was taken to KMC via emergency transport, on
that same date, August 10, 2007, where an ultrasound
confirmed that the fetus was dead. Labor was induced, and
Plaintiff's fetus, Briandalynne Castro . . . was
delivered stillborn on August 11, 2007.
36. On August 14, 2007, an autopsy of [Briandalynne] was
performed in the usual course by Jeffrey Killeen, M.D.
("Dr. Killeen"), KMC Director of Pathology.
37. Dr. Killeen's autopsy findings and conclusions
indicated, inter alia, that the pregnancy was "term or
near-term", [the stillbirth] appeared to be related to
"intrauterine events occurring at the time of vaginal
bleeding", and that, more likely than not, death was
related to a placental abruption. A placental abruption, is a
separation of the placenta from the uterus, causing a
disconnect between the maternal blood supply and placental
nutrition from the maternal circulation.
38. Dr. Killeen's autopsy findings also confirmed that
[Briandalynne] had no congenital or developmental
39. On or around October 22, 2008, Dr. Killeen conducted
further evaluation and testing to determine the approximate
date of [Briandalynne]'s death and supplemented his
autopsy report with an Addendum containing his findings.
40. As a result of this further examination of the fetus,
placenta, and multiple organs, Dr. Killeen opined that
"the time interval between fetal death and delivery is
estimated to be greater than 96 hours, more likely 7 days or
more, and less than 14 days.["] Dr. Killeen's
findings, placed the date of death, within a reasonable
degree of medical probability, as between July 29, 2007 and
August 4, 2007. Dr. Killeen also indicated that the age of
the fetus, was 35 to 37 weeks of gestation
56. The evidence established that [Briandalynne had] no
congenital or development abnormalities. Despite the
incarcerated status of her mother, [Briandalynne's] life
and her loss of enjoyment of life, are of the nature and kind
of any other infant.
57. An award of damages against Defendant State, in the
amount of $250, 000.00 to the Estate of Briandalynne Castro,
is fair and appropriate, for the State's share of the
Estate's total damages.
court also made the following relevant Conclusions of Law
74. Under Hawaii's wrongful death statute, a parent of a
stillborn viable fetus, such as Plaintiff herein, is entitled
to sue for the wrongful death of the fetus. Wade v.
U.S., 745 F.Supp. 1573, 1579 (D. Haw. 1990) .
81. Based on all the facts and circumstances, an award of
damages against Defendant State, in the amount of $350,
000.00 to Plaintiff individually ($250, 000.00 for NIED and
$100, 000.00 for loss of filial consortium), is fair and
appropriate, for the State's share of Plaintiff's
82. The Estate's claim, under HRS § 663-7, is the
cause of action and recovery that [Briandalynne] would have
been entitled to at death for the injuries caused by
Defendant State's negligence. Ozaki v. Assn of Apt.
Owners, 87 Hawai'i 273, 288, 954 P.2d 652, 667 (App.
1998), aff'd in part and reversed in part on
other grounds, 87 Hawai'i 265, 954 P.2d 644 (1998).
The Estate's damages include damages for the loss of
enjoyment of life, or for the value of life itself, measured
separately from the economic productive value that the
deceased would have had. Montalvo v. Lapez, 77
Hawai'i 282, 284 n.2, 884 P.2d 345, 347 n.2 (1994) .
83. The Estate's damages include the value for the loss
of life itself and for all of the damages that [Briandalynne]
would have been entitled to had she been alive, such as loss
of enjoyment of life. The evidence established that the
[Briandalynne had] no congenital or development
abnormalities. Despite the incarcerated status of her mother,
[Briandalynne]'s life and her loss of enjoyment of life,
are of the nature and kind of any other infant. An award of
damages against Defendant State, in the amount of $250,
000.00 to the Estate of Briandalynne Castro, is fair and
appropriate, for the State's share of the Estate's
court thus entered final judgment in Castro's favor and
awarded her $350, 000 individually and $250, 000 as the