
    Leah CASTRO, individually and as Personal Representative of the Estate of Briandalynne Castro, deceased minor, Respondent/Plaintiff-Appellee, v. 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.
    SCWC-12-0000753
    Supreme Court of Hawai'i.
    MARCH 13, 2018 AS AMENDED MARCH 20, 2018
    Marie Manuele Gavigan for petitioners.
    Sue V. Hansen, Honolulu, 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
   OPINION OF RECKTENWALD, C.J.

I. Introduction

This 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, Briandalynne.

After a 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. 2016).

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.

II. Background

A. Factual Allegations and Circuit Court Proceedings

Castro filed a Complaint in her own capacity, and as personal representative of the Estate of Briandalynne, 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.

The 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."

Castro 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.

Castro 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.

Castro 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.

The 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. 1997), "[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 behalf.

On May 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.

However, 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.

A 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 cremation expenses.

Petitioners 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 distress."

The 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 ultrasound.
....
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 complaints.
....
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 abnormalities.
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.

The court also made the following relevant Conclusions of Law (COLs):

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 total damages.
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. Ass'n. 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 [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 total damages.

The court thus entered final judgment in Castro's favor and awarded her $350,000 individually and $250,000 as the representative of Briandalynne's estate.

B. Petitioners' Appeal to the ICA

Petitioners appealed to the ICA, arguing, inter alia, that the circuit court's award of damages to the estate of the fetus was error and that the damages awarded to both Castro and Briandalynne's estate were speculative and improper.

On January 29, 2016, the ICA issued its Published Opinion affirming the circuit court's judgment. Castro v. Melchor, 137 Hawai'i at 182, 366 P.3d at 1061.

The ICA first considered the HRS § 663-3 wrongful death action. With respect to whether a wrongful death claim may be brought on behalf of a stillborn, viable fetus, the ICA noted that Hawai'i's appellate courts have not previously addressed the issue, and that the legislative history of HRS § 663-3 does not reveal whether or not the Legislature intended the statute to apply to unborn, viable fetuses. Id. at 186, 366 P.3d at 1065. According to the ICA, "only six states-California, Florida, Iowa, Maine, New Jersey, and New York-prohibit wrongful death claims from being brought on behalf of unborn children[,]" while "forty-one states and the District of Columbia permit wrongful death actions to be brought on behalf of unborn, viable fetuses." Id. The ICA explained that "thirty-five jurisdictions first recognized such a claim by judicial decision, while fourteen states now expressly allow such a claim by statute." Id. at 187, 366 P.3d at 1066. The ICA stated that it found "compelling reasons to join this overwhelming majority." Id.

The ICA rejected Petitioners' argument that it would be inconsistent to include fetuses within the definition of "person" in HRS § 663-3 when the Hawai'i Supreme Court has held that a fetus is not a person in the Hawai'i Penal Code. Id. The ICA rejected this argument, noting that "Hawai'i is one of only nine states that still apply the 'born alive' rule and have not amended their criminal homicide statutes to include unborn children as victims[,]" and that seven of those nine states-Connecticut, Delaware, New Hampshire, New Mexico, Oregon, Vermont, and Washington-"allow a cause of action for the wrongful death of an unborn, viable fetus." Id. at 188-89, 366 P.3d at 1067-68. The ICA thus held that "the existence of the 'born alive' rule in a state's penal code clearly does not foreclose the existence of a cause of action for the wrongful death of a viable fetus." Id. at 189, 366 P.3d at 1068. The ICA reasoned that this was logical based "on the well-established principle that, while civil causes of action are remedial in nature and therefore are generally construed liberally, criminal statutes are construed strictly and in favor of the accused." Id.

The ICA was persuaded by policy considerations that the majority jurisdictions relied on-"the remedial nature and purposes of the wrongful death remedy, and the injustice in allowing a tortfeasor to escape liability by inflicting greater harm." Id. at 190, 366 P.3d at 1069. The ICA held:

Pursuant to Hawai'i precedent, remedial statutes are to be liberally interpreted. Kalima v. State, 111 Hawai'i 84, 100, 137 P.3d 990, 1006 (2006). "Generally, remedial statutes are those which provide a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries." Id. (citations and internal quotation marks omitted). Inasmuch as "[t]he purpose of damages in wrongful death and survival statutes is compensation for loss, not punishment," and HRS § 663-3 creates a statutory right for non-dependent relatives to sue for wrongful death, a right which did not exist under common law, we conclude that this statute is remedial in nature. Greene v. Texeira, 54 Haw. 231, 505 P.2d 1169, 1170 (1973).

Id. at 189-90, 366 P.3d at 1068-69.

The ICA further noted that, "in Hawai'i, a child who is subsequently born alive may recover damages for negligently inflicted prenatal injuries." Id. at 190, 366 P.3d at 1069 (citing Omori v. Jowa Haw. Co., Ltd., 91 Hawai'i 157, 161-62, 981 P.2d 714, 718-19 (App.1999), aff'd as modified, 91 Hawai'i 146, 981 P.2d 703 (1999) ). Thus, it held that allowing a cause of action in a case where a viable fetus is injured but the child is born, while foreclosing a cause of action where the unborn child dies before birth, "would lead to the absurd and illogical result that greater harm results in a better chance of immunity." Id. at 190-91, 366 P.3d at 1069-70.

The ICA turned to HRS § 663-7 survival actions in its discussion of damages. Id. at 198, 366 P.3d at 1077. It noted in a footnote that not all states have distinct wrongful death statutes and survival statutes, and acknowledged that the varying forms of statutes and remedies and the evolving jurisprudence made generalizations about the application of survival-of-claim statues to claims on behalf of viable, unborn fetuses much more complicated. Id. at 198 n.17, 366 P.3d at 1077 n.17. However, it stated that seventeen states and the District of Columbia recognized at least some sort of personal injury claims that survive the death of the viable, unborn fetus. Id. It then affirmed the trial court's award of loss of life damages to Briandalynne's estate. While the ICA did not make an explicit ruling, by affirming the damages award, the ICA implicitly held that the estate of a viable, unborn fetus may bring a survival action pursuant to HRS § 663-7.

The ICA rejected Petitioners' argument that Castro was foreclosed from being awarded damages under HRS § 663-7, the survival statute, and was limited to damages under HRS § 663-3, the wrongful death statute. Id. at 199, 366 P.3d at 1078. The ICA explained that although " Castro did not reference HRS § 663-7 in her complaint, a plaintiff's failure to cite the statutory basis for her claim does not automatically render the complaint defective or insufficient." Id. Quoting our decision in In re Genesys Data Technologies, Inc., 95 Hawai'i 33, 41, 18 P.3d 895, 903 (2001), the ICA stated that our "rules of notice pleading require that a complaint set forth a short and plain statement of the claim that provides defendant with fair notice of what the plaintiff's claim is and the grounds upon which the claim rests" and that "[p]leadings must be construed liberally." Id. (internal citations omitted). According to the ICA, "a liberal reading of Castro's complaint would put the State on notice" that Castro was bringing "a claim on behalf of Briandalynne's estate," that "the claim arose out of the State's negligence resulting in Briandalynne's death," and that "she would be pursuing general damages in an amount to be proven at trial, which could include damages for the loss of enjoyment of life." Id. at 200, 366 P.3d at 1079. Thus, the ICA held that Castro's complaint "was not insufficient" because it "reasonably informed the State of what Castro's claims were, their basis, and what the State would have to defend against." Id.

The ICA further held that there was sufficient evidence to support an award of damages to Briandalynne's estate. Id. The ICA pointed to the testimony of a doctor who examined Castro, who stated that "he could not find any 'gross congenital anomalies' " nor "abnormalities of any kind" during his examination of Briandalynne as sufficient evidence to support the court's finding that the fetus had no congenital or development abnormalities. Id. at 201, 366 P.3d at 1080. Finally, the ICA rejected Petitioners' argument challenging the award of $100,000 to Castro for loss of filial consortium and the award of $250,000 for emotional distress. Id. at 201-02, 366 P.3d at 1080-81.

The ICA entered its Judgment on Appeal pursuant to its Opinion on February 29, 2016.

III. Standards of Review

A. Findings of Fact (FOF)/Conclusions of Law (COL)-Civil

"In this jurisdiction, a trial court's FOFs are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed." Chun v. Bd. of Trs. of the Emp. Ret. Sys. of State of Hawai'i, 106 Hawai'i 416, 430, 106 P.3d 339, 353 (2005) (internal quotation marks, citations, and ellipses omitted) (quoting Allstate Ins. Co. v. Ponce, 105 Hawai'i 445, 453, 99 P.3d 96, 104 (2004) ).

A COL is not binding upon an appellate court and is freely reviewable for its correctness. [The appellate court] ordinarily reviews COLs under the right/wrong standard. Thus, a COL that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned. However, a COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case.

Chun, 106 Hawai'i at 430, 106 P.3d at 353 (internal quotation marks, citations, and brackets in original omitted) (quoting Ponce, 105 Hawai'i at 453, 99 P.3d at 104 ).

B. Damages

"We shall not disturb the findings of the trial court on the issue of damages ... unless we find that the measure of damages was clearly erroneous [.]" Viveiros v. State, 54 Haw. 611, 614, 513 P.2d 487, 489 (1973).

C. Statutory Interpretation

Questions of statutory interpretation are questions of law to be reviewed de novo under the right/wrong standard.

Our statutory construction is guided by the following well established principles:
Our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
The [appellate] court may also consider the reason and spirit of the law, and the cause which induced the legislature to enact it to discover its true meaning.

Lingle v. Hawai'i Gov't Emp. Ass'n, AFSCME, Local 152, AFL-CIO, 107 Hawai'i 178, 183, 111 P.3d 587, 592 (2005) (internal quotation marks, brackets and ellipses omitted) (quoting Guth v. Freeland, 96 Hawai'i 147, 149-50, 28 P.3d 982, 984-85 (2001) ).

IV. Discussion

Petitioners present two questions in their application for certiorari:

A. Whether the award of loss of enjoyment of life damages for a stillborn fetus was error.
B. Whether the award of $250,000 damages to the estate of Briandalynne Castro was error when there was no evidence presented to justify that monetary amount.

This case thus presents the narrow question of whether the estate of a stillborn fetus may recover loss of enjoyment of life damages under Hawaii's survival statute, HRS § 663-7.

"Hedonic" damages are damages "for the loss of enjoyment of life, or for the value of life itself, as measured separately from the economic productive value that an injured or deceased person would have had." Montalvo v. Lapez, 77 Hawai'i 282, 284 n.2, 884 P.2d 345, 347 n.2 (1994) (quoting Black's Law Dictionary 391 (6th ed. 1990) ). "Many tortious acts-particularly involving negligence ... inflict on the victim what is loosely termed a 'loss of the enjoyment of life,' or a loss of life's pleasures, or the incapacity to lead a normal life, the inability to enjoy one's family, or games, sports, hobbies, avocational skills, and the like." 2 Stuart M. Speiser et al., The American Law of Torts § 8:20 (2014).

Petitioners contend that the circuit court erred in (1) allowing a viable fetus to recover hedonic damages, and (2) awarding $250,000 in damages when there was no evidence regarding the loss of enjoyment of life for Briandalynne, had she lived. In response, Castro argues that the damages award was appropriate because "[t]here is no reason why the amount of general damages for the loss of a life and the loss of a person's enjoyment of life in the case of a stillborn child cannot be determined" using the same factors that courts consider when an infant "is a victim of wrongful death." Castro argues that appellate courts will not disturb the findings of the trial court on damages unless they are clearly erroneous, and that Petitioners' have not adduced any evidence or authority to support such a contention.

We conclude that the relevant statutes, applicable case law, and policy considerations, support Castro's contention that the estate of an unborn, viable fetus is able to recover hedonic damages. We also find that there was sufficient evidence to support the circuit court's damages award. Accordingly, we conclude that the ICA did not err in affirming the circuit court's award of damages for loss of enjoyment of life.

A. The circuit court did not err in allowing a viable fetus to recover hedonic damages .

Hedonic damages are "indisputably" recoverable in Hawai'i, as " HRS § 663-8.5(a) (Supp. 1992) provides that noneconomic damages which are recoverable in tort actions include damages for pain and suffering, mental anguish, disfigurement, loss of enjoyment of life, loss of consortium, and all other nonpecuniary losses or claims." Montalvo, 77 Hawai'i at 301, 884 P.2d at 364 (brackets and internal quotation marks omitted) (emphasis in original). Children may recover hedonic damages for injuries sustained in the womb. See Omori, 91 Hawai'i at 162, 981 P.2d at 719.

There is no question, and Petitioners do not dispute, that a decedent's estate can recover damages for loss of enjoyment of life under the survival statute, HRS § 663-7, which provides:

A cause of action arising out of a wrongful act, neglect, or default, except a cause of action for defamation or malicious prosecution, shall not be extinguished by reason of the death of the injured person. The cause of action shall survive in favor of the legal representative of the person and any damages recovered shall form part of the estate of the deceased.

HRS § 663-7 ; see also Ozaki, 87 Hawai'i at 288, 954 P.2d at 667 (holding that under HRS § 663-7, the estate of murdered tenant could assert loss of enjoyment of life claim that she had at time of her death).

Rather, Petitioners argue that it is inappropriate to award hedonic damages to the estate of a viable fetus. In support, Petitioners quote a leading treatise on personal injury, suggesting that hedonic damages are inappropriate in situations in which the decedent was killed instantly: "[i]n a survival action, a decedent's estate generally may be allowed to recover hedonic damages for the time between injury and death." Petitioners also argue that there must be evidence of how a decedent enjoyed life, and a fetus cannot suffer hedonic damages, since the fetus has not had time to develop the ability to have loss of enjoyment of life damages.

Petitioners' arguments fail for four reasons. First, the legislative history supports a finding that the legislature did not intend to exclude a viable fetus from an HRS § 663-7 survival action, but rather intended that recovery be as broad as possible. This is consistent with the well-established principle that remedial statutes should be liberally construed. Kalima v. State, 111 Hawai'i 84, 100, 137 P.3d 990, 1006 (2006). Second, Hawai'i case law is unique because it does not require the decedent to have actually experienced the loss of enjoyment of life to recover hedonic damages. Third, disallowing hedonic damages in this situation would not adequately compensate the injured party. Fourth, children may recover hedonic damages for injuries sustained in the womb; accordingly, disallowing hedonic damages to viable, unborn fetuses under HRS § 663-7 would provide perverse incentives to the tortfeasor.

In interpreting a statute, we start with our foremost obligation: to ascertain and give effect to the intention of the legislature. See Morgan v. Planning Dep't, Cty. of Kauai, 104 Hawai'i 173, 179, 86 P.3d 982, 988 (2004). Because it is not clear from the plain language of the statute whether HRS § 663-7 would apply to a viable, unborn fetus, we must look at the statute's legislative history. See id. In reviewing the legislative history of HRS § 663-7, the survival statute, there is nothing to suggest that the legislature intended to exclude a viable fetus from an HRS § 663-7 survival action. Rather, the legislature expressly provided that recovery under the survival statute be "broad" and endorsed this court's broad judicial interpretation of the wrongful death statute, HRS § 663-3 which was revised as part of the same bill in which HRS § 663-7, the survival statute, was implemented.

House Bill 588 of 1955 revised the 1923 wrongful death statute, HRS § 663-3, and implemented for the first time the survival statute, HRS § 663-7. In relevant part, the House Judiciary Committee stated as follows:

1. The purpose of this bill is to broaden the right of action and the extent of recovery in wrongful death suits.
....
3. This bill, as amended, broadens the wrongful death statute by permitting a deceased person's spouse, children, father, mother, or dependents to recover for the wrongful death of the deceased....
The right of action under the present wrongful death action is based on the archaic principal of dependency. The provisions of this bill are consistent with the theory of the majority of the statutes in the United States. This bill permits recovery for not only pecuniary losses but also for loss of love and affection, including (1) loss of society, companionship, comfort, consortium or protection, (2) loss of marital care, attention, advice or counsel, (3) loss of filial care or attention or, (4) loss of parental care, training, guidance or education.
4. The provisions of this bill follow, in substance, the doctrine of the case of Gabriel [v]. Margah, 37 Haw. 571, which extended the interpretation of the existing statutory right of action.
5. This bill also provides for a survival statute. In the majority of the states in the United States, broad survival statutes have been passed to permit the survival of right of action arising out of a tort despite the death of the wrongdoer or of the injured person.
Under the common law, death terminated the right of action arising out of a tort. This archaic doctrine has caused untold hardship and injustice.
The present Territorial statutes are not broad enough to cover all of the hardship situation which might arise and your Committee feels that this bill will help fill a void in the tort laws of the Territory.

H. Stand. Comm. Rep. No. 581, in 1955 House Journal, at 772-73 (emphasis added).

The spirit and intent of the law was that both the wrongful death statute, HRS § 663-3, and the survival statute, HRS § 663-7, be broad remedial statutes. The legislature expressly provided that it was adopting a survival statute because the majority of the states had passed "broad" survival statutes, and that the tort laws of the Territory were "not broad enough." Id. at 773.

Regarding the amendments to HRS § 663-3, the wrongful death statute, the legislature explained that it was adopting and codifying the Hawai'i Supreme Court's broad remedial interpretation of the wrongful death statute in Gabriel, 37 Haw. 571.

The Gabriel court explained that Hawai'i adopted a common law cause of action in 1860 by which a husband or wife could recover for the wrongful death of his or her spouse, and that in 1905, the Hawai'i Supreme Court held that a father could recover for the death of his minor child. Id. at 575-77 (citing Kake v. C.S. Horton, 2 Haw. 209 (1860) ; Ferreira v. Honolulu R. T. & L. Co., 16 Haw. 615 (1905) ). The Gabriel court explained that in Hall v. Kennedy, 27 Haw. 626 (1923), the court held that a father could not recover for the death of an adult son upon whom the father was dependent for support. Id. at 579. In response to Hall, the legislature enacted the wrongful death act of 1923, which provided that any person dependent on the deceased person could maintain an action for damages against the person causing the death. Id.

In Gabriel, parents sought to recover for the death of their minor child, and the defendants argued that the 1923 statute had superseded the common law right of recovery for wrongful death, and that only those dependent on the deceased could recover under the statute. Id. at 572. The Gabriel court held that the statute had not superseded the common law right-and thus that the parents could recover for the death of their minor child. Id. at 582.

Thus, the 1955 revision of HRS § 663-3 -the wrongful death statute-adopted and codified the Hawai'i Supreme Court's broad remedial interpretation of the statute. The legislature clarified that anyone in specified relationships with the deceased, regardless of dependency, could recover under the statute, and that anyone dependent on the deceased, regardless of relationship, could recover under the statute. HRS § 663-3.

Because the legislature endorsed and adopted the Hawai'i Supreme Court's broad interpretation of HRS § 663-3, and because the survival action, HRS § 663-7, was implemented as part of the same act as the legislative revision to HRS § 663-3, it follows that the intent of the legislature was to provide for broad recovery under both statutes, and to endorse broad judicial interpretation of both statutes. Accordingly, interpreting HRS § 663-7 to provide recovery for viable, unborn fetuses is consistent with the legislature's intent to provide broad recovery under the wrongful death and survival statutes.

Construing HRS § 663-7 to provide recovery for viable, unborn fetuses is also consistent with our guiding principle that remedial statutes should be liberally construed. See Kalima, 111 Hawai'i at 100, 137 P.3d at 1006. HRS § 663-7 is a remedial statute. See Greene, 54 Haw. at 236, 505 P.2d at 1173 ("Our interpretation of HRS § 663-7 recognizes that the aim of the statutes in this area of the law is compensation for loss[.]") "This court has stated that remedial statutes should be liberally construed to suppress the perceived evil and advance the enacted remedy and has disfavored narrow interpretations that impede rather than advance the remedies provided by such statutes." Kalima, 111 Hawai'i at 100, 137 P.3d at 1006 (internal citations omitted).

Second, we reject Petitioners' arguments that a decedent must experience consciousness of her loss of enjoyment of life and that there must be evidence of how a decedent enjoyed life, as we are persuaded by the ICA's decision in Polm v. Dep't of Human Servs., 134 Hawai'i 305, 339 P.3d 1106, 2014 WL 7390879 at *21 (App. 2014). There, the ICA affirmed the circuit court's order finding the Department of Human Services liable for damages to a one-year-old child's estate. Id. The defendant had argued that "since [the Decedent] lost consciousness almost immediately and there was no evidence of how he had enjoyed life or how he would have enjoyed life, only minimal damages could be awarded for loss of enjoyment of life." Id. (internal quotation marks omitted). The ICA rejected these arguments and awarded damages under HRS § 663-7. Id. Other jurisdictions have also held that consciousness is not required to recover loss of enjoyment of life damages. See Holston v. Sisters of Third Order of St. Francis, 165 Ill. 2d 150, 209 Ill.Dec. 12, 650 N.E.2d 985 (1995) (holding that damages may be awarded for the loss of enjoyment of life to a disabled person even if she was unaware of her loss); Flannery v. United States, 171 W. Va. 27, 33, 297 S.E.2d 433, 439 (1982) (holding comatose patient could recover loss of enjoyment of life damages "even though he may not be able to sense his loss of enjoyment of life").

Third, disallowing hedonic damages in this situation would not adequately compensate Briandalynne's estate. Under HRS § 663-8.5(a), Briandalynne's estate could recover damages for "pain and suffering, mental anguish, disfigurement, loss of enjoyment of life, loss of consortium, and all other nonpecuniary losses or claims." However, it is unclear to what extent Briandalynne could have recovered for pain and suffering, since our case law requires consciousness. See Brown v. Clark Equip. Co., 62 Haw. 530, 537, 618 P.2d 267, 272 (1980) (" Rohlfing... established the rule that recovery for pain and suffering depended on the existence of conscious pain and suffering.") (emphasis added). Accordingly, hedonic damages may be the only way to appropriately compensate Briandalynne's estate for her injury.

Fourth and finally, to not allow hedonic damages in this case would create perverse incentives for the tortfeasor. In Omori, the ICA held that children may recover hedonic damages for injuries sustained in the womb. 91 Hawai'i at 162, 981 P.2d at 719. Policy considerations counsel against barring recovery of hedonic damages for the death of a viable, unborn fetus under the survival statute, but allowing a child who is tortuously injured while in the womb to bring a negligence claim for damages after birth. See Ozaki, 87 Hawai'i at 289, 954 P.2d at 668. In Ozaki, the ICA held that the estate of an adult decedent could recover damages for loss of enjoyment of life under HRS § 663-7. Id. In so holding, the ICA relied on the concurring opinion in Jones v. Shaffer:

A person tortiously injured, and permanently disabled in consequence, may recover for the diminished joy of living.... If this view does not hold in wrongful death cases, our law gives off unfortunate incentives. We invite the tortfeasor who runs over a pedestrian to back up and do it again and be sure his victim is dead.

573 So.2d 740, 746 (Miss. 1990) (concurring opinion).

Thus, based on the survival statute's legislative history, Hawai'i precedent, and policy considerations, we hold that Briandalynne's estate was properly allowed to recover damages for loss of enjoyment of life.

This holding would not subject to civil liability a woman carrying a fetus whose negligence caused the viable fetus to die in utero or who exercised her rights under the law to terminate a pregnancy through abortion.

Regarding negligence, the question of whether recovery is possible under HRS § 663-7 and whether a legal duty of care exists are two separate inquiries. HRS § 663-7 does not define against whom a decedent's estate may sue, and its legislative history does not manifest intent on the part of the legislature to impose a legal duty of care on particular defendants. Accordingly, the existence of a legal duty of care for recovery under HRS § 663-7 is a question of law for the courts to decide. Ah Mook Sang v. Clark, 130 Hawai'i 282, 290, 308 P.3d 911, 919 (2013).

In considering whether to impose a duty of reasonable care on a defendant, we recognize that duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done. In determining whether or not a duty is owed, we must weigh the considerations of policy which favor the appellants' recovery against those which favor limiting the appellees' liability.

Id. at 291, 308 P.3d at 920.

Based on significant policy considerations, we agree with the jurisdictions that have held as a matter of law that a pregnant woman does not owe a legal duty of care to the fetus she carries. See Remy v. MacDonald, 440 Mass. 675, 682-83, 801 N.E.2d 260, 266-67 (2004) (holding that a mother did not owe a legal duty of care to her unborn fetus, noting "inherent and important differences between a fetus, in utero, and a child already born" and that "[r]ecognizing a pregnant woman's legal duty of care ... to her unborn child would present an almost unlimited number of circumstances that would likely give rise to litigation"); Stallman v. Youngquist, 125 Ill. 2d 267, 279-80, 126 Ill.Dec. 60, 531 N.E.2d 355, 361 (1988) (holding no legal duty, and noting "[j]udicial scrutiny into the day-to-day lives of pregnant women would involve an unprecedented intrusion into the privacy and autonomy of the citizens of this State"); Chenault v. Huie, 989 S.W.2d 474, 476-77 (Tex. App. 1999) (finding no legal duty and stressing "[t]he extent of interference with a woman's legal rights that could occur as a result of imposing a legal duty to the fetus").

Similarly, a holding that Briandalynne's estate can recover loss of enjoyment of life damages under HRS § 663-7 would not affect or interfere with a woman's right under the law to terminate a pregnancy through abortion. Other jurisdictions which have interpreted wrongful death or survival statutes to provide recovery for the death of a viable, unborn fetus have made clear that the holding would not affect abortion rights. See, e.g., Strzelczyk v. Jett, 264 Mont. 153, 158, 870 P.2d 730, 733 (1994) (Gray, J., concurring) (making clear, in its holding that a wrongful death statute covered an unborn fetus that, "this is not an abortion case or a case related in any way to a woman's constitutional right to privacy and to an abortion ... The termination of a pregnancy by abortion is an intentional, consensual act by a woman and her physician which the law specifically allows" while a wrongful death action is based on negligence).

B. The circuit court's award of $250,000 in damages to Briandalynne's estate was not in error .

In their second question presented, Petitioners argue that the circuit court erred in awarding $250,000 in damages to Briandalynne's estate "when there was no evidence presented to justify that monetary amount." For support, Petitioners cite to Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., in which we held that "[i]t is well-settled that all tort claims require that damages be proven with reasonable certainty." 116 Hawai'i 277, 292, 172 P.3d 1021, 1036 (2007).

Generally, we do not disturb the findings of the trial court on the issue of damages absent a clearly erroneous measure of damages. See Viveiros, 54 Haw. at 614, 513 P.2d at 489 ; Johnson v. Sartain, 46 Haw. 112, 114, 375 P.2d 229, 230-31 (1962) ("[D]amages ... will not be disturbed on appellate review unless palpably not supported by the evidence, or so excessive and outrageous when considered with the circumstances of the case."). With respect to Briandalynne's damages, the circuit court made the following FOF, which Petitioners do not challenge in their application for certiorari:

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.

The circuit court also made the following COLs:

72. Had Plaintiff's medical care been consistent with the applicable standard of care, such as a consultation with an OBGYN and an ultrasound evaluation by as late as July 29, 2007, Plaintiff's bleeding condition would have been detected and treated; or if the bleeding condition could not have been corrected, delivery would have been initiated and [Briandalynne] would have been born alive.
73. Defendant State's negligence was the legal cause of the death of [Briandalynne], and Plaintiff's injuries and damages. Had medical care for [Castro and Briandalynne] been provided consistent with the applicable standard of care after July 2, 2007 and before July 29, 2007, delivery of a live baby would have been accomplished.
....
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 [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 total damages.

Based on this record, the circuit court's damages award was not clearly erroneous. The $250,000 was appropriately based on the evidence at trial that showed, for example, that Briandalynne would have been born a healthy child, and that her loss of enjoyment of life would be similar to that of any other infant. This award is also comparable to other damage awards for similar conduct. See Polm, 2014 WL 7390879 at *21 (affirming circuit court's order awarding $250,000 in damages to one-year-old child's estate).

Contrary to Petitioners' argument, Respondents were not required to present specific evidence of Briandalynne's life expectancy or make calculations regarding her loss of enjoyment of life. This is not a case in which damages were capable of ascertainment by calculation. As we noted in Montalvo:

The measurement of the joy of life is intangible. A jury may draw upon its own life experiences in attempting to put a monetary figure on the pleasure of living. It is a uniquely human endeavor ... requiring the trier of fact to draw upon the virtually unlimited factors unique to us as human beings. Testimony of an economist would not aid the jury in making such measurements because an economist is no more expert at valuing the pleasure of life than the average juror. [T]he loss of enjoyment of life resulting from a permanent injury is ... not subject to an economic calculation.

77 Hawai'i at 303, 884 P.2d at 366 (emphases added; citations and internal quotations omitted).

Thus, given its findings, we conclude that the circuit court was within its discretion to set $250,000 as the appropriate compensation for Briandalynne's injury.

V. Conclusion

For the foregoing reasons, we hold that Briandalynne's estate could maintain a survival action against Petitioners for hedonic damages, and that the circuit court did not err in awarding the estate $250,000 in damages for loss of enjoyment of life. Accordingly, we affirm the ICA's judgment on appeal.

CONCURRING OPINION BY NAKAYAMA, J.

The Intermediate Court of Appeals (ICA) held that "a claim may be brought pursuant to [Hawai'i Revised Statutes (HRS) ] § 663-3 for the death of a viable, unborn fetus." Castro v. Melchor, 137 Hawai'i 179, 191, 366 P.3d 1058, 1070 (App. 2016). On certiorari, neither party challenged the ICA's holding on this point. Accordingly, for this procedural reason alone, I agree with the Chief Justice insofar as he does not address the ICA's holding that a wrongful death claim may be brought on behalf of a stillborn fetus that was viable before death, and affirms the ICA's holding on the matter. Additionally, I believe that Justice McKenna should not have addressed the ICA's holding on this point on the merits. Therefore, inasmuch as I am constrained in affirming the ICA's decision with respect to its interpretation of HRS § 663-3, I am compelled to join the Chief Justice in affirming the ICA's judgment on appeal.

However, I write separately to clarify and explain that had the issue of whether a wrongful death claim may be brought on behalf of a stillborn fetus been properly raised for our consideration on certiorari, I would have reversed the ICA's holding and held that an unborn, viable fetus is not a "person" within the meaning of HRS § 663-3. For compelling policy reasons, I believe that the death of an unborn, viable fetus should not give rise to a cause of action under HRS § 663-3. Thus, I would have held that the estate of an unborn, viable fetus should not be able to recover hedonic damages under HRS § 663-7 because, in my view, no cause of action arising out of HRS § 663-3 should survive in favor of the fetus's estate.

I. DISCUSSION

A. Because the issue of whether an unborn, viable fetus is a "person" within the meaning of HRS § 663-3 was not properly raised on certiorari, the issue should not be considered on the merits, and the ICA's decision should be affirmed.

Hawai'i Rules of Appellate Procedure (HRAP) Rule 40.1(d)(1) (2015) states, in relevant part:

(d) Contents. The application for a writ of certiorari ... shall contain ... (1) A short and concise statement of the questions presented for decision, set forth in the most general terms possible. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Questions not presented according to this paragraph will be disregarded. The supreme court, at its option, may notice a plain error not presented.

(Emphasis added.)

In their application for writ of certiorari, Petitioners do not present any questions as to whether the ICA properly concluded that a wrongful death claim may be brought on behalf of a stillborn fetus, which was viable prior to death. Additionally, Respondent does not raise any questions with respect to the ICA's holding on the matter in her response to Petitioners' application. Accordingly, this issue is not before this court on certiorari. See HRAP Rule 40.1(d). Thus, I believe that the issue should not be addressed on the merits, and that the ICA's holding on this point should be affirmed on this procedural basis alone.

Notwithstanding the foregoing, Justice McKenna addresses the issue of whether an unborn, viable person is a "person" under HRS § 663-3 on the merits because, in her view, the issue may be properly addressed as a " 'subsidiary question fairly comprised' within [Petitioners'] question on certiorari as to whether hedonic damages were properly awarded to the estate of the stillborn fetus." Opinion of McKenna, J., at 10 (quoting HRAP Rule 40.1(d) ). Justice McKenna asserts that because "this court need address the specific questions on certiorari only if a viable yet stillborn fetus is a 'person' for purposes of HRS § 663-3," the ICA "addressed the threshold question in extensive detail before affirming [the Circuit Court of the First Circuit's (circuit court) ] damage award," and because the question presents an important matter of first impression, this court can and should address the issue on the merits. Opinion of McKenna, J., at 14.

While I agree with Justice McKenna that we have the authority to consider the issue as a threshold issue under HRAP Rule 40.1(d), see Opinion of McKenna, J., at 10, I believe that upon consideration of the principles underlying our adversary system, and our role as a neutral arbiter therein, our discretionary authority should be used sparingly in circumstances where the interests of justice demand us to consider questions that the parties have not presented.

A fundamental underpinning of the adversary system is "the principle of party presentation." Greenlaw v. United States, 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). Under the principle of party presentation, courts "rely on the parties to frame the issues for decision" and are "assign[ed] ... the role of neutral arbiter of matters the parties present." Id. Put differently, the adversary system is "designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief." Id. at 244, 128 S.Ct. 2559 (quoting Castro v. United States, 540 U.S. 375, 386, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (Scalia, J., concurring) ). Consequently, courts generally hesitate to consider issues not raised by the parties "both because our system assumes and depends upon the assistance of counsel, and because of the unfairness of such a practice to the other party." United States v. Pryce, 938 F.2d 1343, 1353 (D.C. Cir. 1991) (Silberman, J., dissenting) (citations omitted).

A decision by this court to employ its authority to consider questions other than those presented by the parties contravenes the foregoing bedrock principles upon which the adversary system rests. Therefore, in my view, a departure from these key values is warranted only in cases where the interests of justice require such action.

Based on its specific facts and circumstances, this case does not appear to be one in which the exercise of such authority is appropriate. Here, both parties fully briefed whether an unborn, viable fetus is a "person" under HRS § 663-3 before the circuit court and the ICA. In their application for writ of certiorari, Petitioners do not challenge the ICA's holding that an unborn, viable fetus is a "person" within the meaning of HRS § 663-3. In their response, Respondents do not reignite the conflict or otherwise request this court to resolve the issue on the merits. Furthermore, at oral argument, Petitioners made clear that they did not intend for this issue to be a part of their case on certiorari. At oral argument, Petitioners averred that while the issue was briefed fully before the circuit court and the ICA, they did not believe that their arguments on the matter were part of their case on certiorari because they had deliberately chosen not to challenge the ICA's interpretation of HRS § 663-3. Oral Argument at 3:27-3:36, 4:24-4:41, Castro v. Melchor, SCWC-12-0000753, http://oaoa.hawaii.gov/jud/oa/16/SCOA_090116_SCWC_12_753.mp3. In light of the foregoing, I do not believe that this court should exercise its authority to consider the issue on the merits when it was not raised by either party on certiorari.

Therefore, for procedural reasons alone, I agree with the Chief Justice to the extent that, in declining to address the issue, the Chief Justice effectively affirms the ICA's holding that a wrongful death claim can be brought on behalf of a stillborn fetus that was viable before its death. Although I agree with Justice McKenna that this court has the discretionary authority to consider the issue despite the fact that the parties did not raise it on certiorari, I do not believe that the circumstances in this case justify exercising such authority.

B. The estate of an unborn, viable fetus should not be able to recover hedonic damages under HRS § 663-7 because a cause of action under HRS § 663-3 should not exist for the stillbirth of a fetus that was viable before death.

The ICA held that a cause of action exists for the death of an unborn, viable fetus under HRS § 663-3. Castro, 137 Hawai'i at 191, 366 P.3d at 1070. As discussed in section II.A, supra, I am constrained in affirming the ICA's holding on this point for procedural reasons. However, had the parties properly challenged the ICA's interpretation of HRS § 663-3 on certiorari, I would have reversed the ICA's holding on this point, as I believe its decision is unwise for two reasons.

First, the ICA's conclusion results in inconsistent standards whereby an unborn fetus is deemed to be a "person" under our civil statutes, but is not a "person" under our penal code. In my view, whether an unborn fetus may be considered a "person" should not vary between statutory frameworks. As this case illustrates, whether an unborn fetus is viewed as a "person" in the eyes of the law determines not only the legal rights that the fetus is entitled to, but also the legal duties and responsibilities that all other individuals in society owe to the unborn fetus. Put simply, the legal definition of whether an unborn fetus is a "person" structures the basic legal relationships between the unborn fetus and all other persons in our community. A definition with such significant, fundamental consequences should be consistent across the board and should not fluctuate from statute to statute.

Second, the ICA's holding ventures into uncertain and treacherous territory and may be difficult for courts to apply consistently in the future. Under the ICA's holding, whether the estate of a stillborn fetus may bring a cause of action for wrongful death under HRS § 663-3 hinges upon whether the fetus was viable before death. See Castro, 137 Hawai'i at 191, 366 P.3d at 1070 ("[W]e hold that a claim may be brought pursuant to HRS § 663-3 for the death of a viable, unborn fetus." (emphasis added) ). However, the concept of a fetus's viability and the determination thereof are both vastly problematic. On this issue, the Supreme Court of the United States has stated:

[A] physician determines whether or not a fetus is viable after considering a number of variables: the gestational age of the fetus, derived from the reported menstrual history of the woman; fetal weight, based on an inexact estimate of the size and condition of the uterus; the woman's general health and nutrition; the quality of the available medical facilities; and other factors. Because of the number and the imprecision of these variables, the probability of any particular fetus' [s] obtaining meaningful life outside the womb can be determined only with difficulty. Moreover ... even if agreement may be reached on the probability of survival, different physicians equate viability with different probabilities of survival, and some physicians refuse to equate viability with any numerical probability at all. In the face of these uncertainties, it is not unlikely that experts will disagree over whether a particular fetus in the second trimester has advanced to the stage of viability.

Colautti v. Franklin, 439 U.S. 379, 395-96, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (footnotes omitted). In other words:

[R]ather than being a description of an existing state of facts, the conclusion that a fetus is viable is really more of a medical prediction-often a highly disputable prediction-concerning what might happen to a fetus if you radically change its location. There is no clear distinguishing feature that separates viable fetuses from previable fetuses. Different doctors might classify the same fetus as viable or nonviable, perhaps for reasons having nothing to do with the fetus itself, but arising instead from differences in medical skill or treatment philosophy.

Randy Beck, State Interests and the Duration of Abortion Rights, 44 McGeorge L. Rev. 31, 37 (2013) (footnotes omitted). It follows that under the ICA's holding, a complex medical inquiry fraught with uncertainty determines whether a cause of action may be brought for the death of an unborn fetus under HRS § 663-3. From my perspective, the existence of a wrongful death claim, which may have significant financial and personal consequences for all parties involved, should not depend on an analysis that has a substantial likelihood of yielding arbitrary results.

Accordingly, I believe that the ICA's recognition of a cause of action for the wrongful death of an unborn, viable fetus is ill-advised. Thus, had the issue been properly presented for our consideration on certiorari, I would have held that unborn fetuses should not be included as "person[s]" under HRS § 663-3, and thereby adopt a clear principle of consistent application, which parallels the existing rule in our penal code.

Therefore, I would have concluded that a cause of action does not exist for the stillbirth of an unborn, viable fetus under HRS § 663-3, such that the fetus's estate retains no cause of action arising out of the fetus's stillbirth under HRS § 663-7. See Greene v. Texeira, 54 Haw. 231, 235, 505 P.2d 1169, 1172 (1973) ("Under HRS § 663-7 there survives in favor of the decedent's legal representative only such cause of action as the decedent himself [or herself] had at the moment of his [or her] death."). Based upon this premise, I would have concluded that the estate of an unborn fetus should not be able to recover hedonic damages under HRS § 663-7.

II. CONCLUSION

Therefore, for procedural reasons, I agree with the Chief Justice's opinion to the extent that he does not address the issue of whether the stillbirth of a previously viable fetus gives rise to a cause of action under HRS § 663-3 on the merits, and affirms the ICA's holding on this matter. As I am constrained in affirming the ICA's holding with respect to its interpretation of HRS § 663-3, I am compelled to join the Chief Justice in affirming the ICA's judgment on appeal. I therefore concur with the result that he reaches, but not the reasoning that he employs.

To be clear, however, had the ICA's interpretation of HRS § 663-3 been properly raised for our consideration on certiorari, I would have held that an unborn, viable fetus is not a "person" within the meaning of HRS § 663-3, and that no cause of action survives in favor of the fetus's estate under HRS § 663-7. Accordingly, I would have concluded that the estate of an unborn, viable fetus should not be able to recover hedonic damages under HRS § 663-7.

OPINION OF McKENNA, J., IN WHICH POLLACK, J. JOINS

I. Introduction

This case arises from the stillbirth of a formerly viable fetus carried by Leah Castro ("Castro"), an inmate at a state correctional facility. The Intermediate Court of Appeals ("ICA") affirmed the circuit court's damages awards based on the wrongful death and survival statutes as well as based on the common law tort of negligent infliction of emotional distress, Castro v. Melchor, 137 Hawai'i 179, 366 P.3d 1058 (App. 2016). The remaining defendant state entities and officials ("the State") seek certiorari review only of the damages awarded under the survival statute to the estate of the stillborn fetus.

The wrongful death and survival statutes are interrelated, and provide recovery for "wrongful act, neglect, or default" causing death to a "person." The wrongful death statute provides for recovery of damages for those in enumerated relationship categories to the deceased "person," while the survival statute provides for recovery of damages for the estate of the deceased "person." Under the survival statute, HRS § 663-7, a decedent's legal representative retains only such causes of action as the deceased "person" had at the moment of his or her death. See Greene v. Texeira, 54 Haw. 231, 235, 505 P.2d 1169, 1172 (1973). Thus, damages are not available under the survival statute for a deceased "person" unless the deceased qualifies as a "person" under the wrongful death statute, HRS § 663-3.

We have held that this court's foremost obligation in construing HRS § 663-3, Hawai'i's wrongful death statute, is to ascertain and give effect to the intention of the legislature. Lealaimatafao v. Woodward-Clyde Consultants, 75 Haw. 544, 551, 867 P.2d 220, 224 (1994). Although the question of whether a stillborn formerly viable fetus is a "person" under Hawaii's wrongful death statute, HRS § 663-3, was not specifically asserted in the application for writ of certiorari, it is a subsidiary question within the first question on certiorari, "[w]hether the award of loss of enjoyment of life damages [under the survival statute, HRS § 663-7 ] for a stillborn fetus was error." In our opinion, controlling principles of statutory interpretation clearly indicate that the legislature did not intend to include a stillborn formerly viable fetus in the definition of a "person" under the wrongful death and survival statutes.

For the reasons stated in this opinion, we would therefore conclude that the $250,000 awarded by the Circuit Court of the First Circuit ("circuit court") to the stillborn fetus's estate as hedonic damages for loss of life and loss of enjoyment of life under the survival statute, which was based on a threshold holding that a stillborn formerly viable fetus qualifies as a "person" under Hawaii's wrongful death and survival statutes, was erroneous as a matter of law. Although the $100,000 awarded to Castro for loss of filial consortium under the wrongful death statute also suffers from the same legal defect, the State has not challenged this damages award on certiorari; therefore, we would not set aside that award. In addition, the wrongful death statute is not implicated in the circuit court's award of $250,000 to Castro herself based on the common law tort of negligent infliction of emotional distress. This award was proper and, in any event, was also not challenged on certiorari. Thus, although we would set aside the award of $250,000 for hedonic damages for the estate of the stillborn fetus, we would affirm all other damages awards. We construe Justice Nakayama's opinion as agreeing that a fetus does not qualify as a "person" under the wrongful death and survival statutes, but joining with the Chief Justice in a judgment on appeal that also allows the estate of the fetus to recover in this case because the State did not specifically raise the issue on certiorari.

II. Factual and Procedural Background

As noted, this case arises out of the stillbirth of a formerly viable fetus carried by Castro while she was an inmate. The amended complaint filed in the circuit court alleged wrongful death, survival, and emotional distress claims. Although the wrongful death and survival statutes are not mentioned in the amended complaint, throughout the entire lawsuit, the parties have proceeded on the assumption that this lawsuit is governed by the wrongful death and survival statutes, not based on common law.

Castro filed the lawsuit individually and as the personal representative of the estate of the stillborn formerly viable fetus, alleging that the State's failure to provide proper medical care caused the stillbirth. She pled causes of action based on negligence, gross negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.

The circuit court denied the State's pre-trial motion to dismiss all survival claims brought on behalf of the estate of the fetus based on the State's argument that a stillborn viable fetus did not qualify as a "person" under the wrongful death statute. After a bench trial, the circuit court ruled against the State, and awarded Castro $250,000 based on the common law tort of negligent infliction of emotional distress and $100,000 for loss of filial consortium under the wrongful death statute. The circuit court also awarded $250,000 to the estate of the stillborn formerly viable fetus under the survival statute for loss of life and loss of enjoyment of life. Thus, with respect to damages awarded the estate of the fetus, the circuit court ruled that a stillborn formerly viable fetus is a "person" under Hawai'i's wrongful death statute.

Before the ICA, the State argued (1) that a stillborn fetus is not a "person" for purposes of the wrongful death statute; (2) that the circuit court erred in finding negligence; and (3) that even if negligence had been proven, the damages awarded were improper and speculative. Castro, 137 Hawai'i at 185, 366 P.3d at 1064. The ICA affirmed the circuit court on all three issues. 137 Hawai'i at 203, 366 P.3d at 1082.

In its application for certiorari to this court, the State raised two questions:

A. Whether the award of loss of enjoyment of life damages for a stillborn fetus was error.
B. Whether the award of $250,000 damages to the estate of Briandalynne Castro was error when there was no evidence presented to justify that monetary amount.

Thus, the State only challenges the $250,000 in hedonic damages awarded to the estate of the stillborn fetus, and has waived any arguments against the other damages awards.

III. Standards of Review

A. Findings of Fact and Conclusions of Law

This court reviews a trial court's factual findings under the clearly erroneous standard. A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed. A finding of fact is also clearly erroneous when the record lacks substantial evidence to support the finding. We have defined substantial evidence as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

Conclusions of law are reviewed de novo, under the right/wrong standard of review.

Lambert v. Waha, 137 Hawai'i 423, 430-31, 375 P.3d 202, 209-10 (2016) (internal citations omitted).

B. Statutory Interpretation

Statutory interpretation is reviewable de novo. Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawai'i 184, 193, 159 P.3d 143, 152 (2007). When construing statutes, the court is governed by the following rules:

First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
When there is ambiguity in a statute, "the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." Moreover, the courts may resort to extrinsic aids in determining legislative intent, such as legislative history, or the reason and spirit of the law.

114 Hawai'i at 193-94, 159 P.3d at 152-53 (citations omitted).

IV. Discussion

A. The question of whether a viable fetus is a "person" under HRS § 663-3 is a subsidiary question within the first question on certiorari properly considered by this court.

The State's first question on certiorari is "[w]hether the award of loss of enjoyment of life damages for a stillborn fetus was error." The State did not specifically argue the issue of whether a viable fetus is a "person" under HRS § 663-3 in its certiorari application. We believe, however, that it is incumbent on this court to address the issue of whether a stillborn formerly viable fetus qualifies as a person under the wrongful death statute. First, the ICA's published opinion discusses the issue in detail, then holds that a viable fetus is a "person" for purposes of the wrongful death statute. Castro, 137 Hawai'i at 186-91, 366 P.3d at 1065-70.

Second, the issue is clearly subsumed within the first question on certiorari. Hawai'i Rules of Appellate Procedure Rule 40.1(d)(1) (2016), specifically provides that "[t]he statement of a question presented [in an certiorari application] will be deemed to include every subsidiary question fairly comprised therein." (Emphasis added.) Thus, the issue of whether the ICA erred by including a stillborn formerly viable fetus in the definition of a "person" as a decedent under the wrongful death statute is a "subsidiary question fairly comprised" within the State's question on certiorari as to whether hedonic damages were properly awarded to the estate of the stillborn fetus under the survival statute.

The propriety of addressing subsidiary issues is illustrated by Matter of Lorenzo's Estate, 61 Haw. 236, 602 P.2d 521 (1979). In that case, the appellant filed an appeal to challenge specific rulings made by the trial judge during the course of a jury trial. 61 Haw. at 238, 602 P.2d at 524. In his answering brief, the appellee argued that a jury trial was improperly granted in the first place. 61 Haw. at 238, 602 P.2d at 525. In turn, the appellant argued that the court should ignore the issue raised in the appellee's answering brief because it was not specifically raised in the appellant's opening brief or properly raised by the appellee through a cross-appeal. 61 Haw. at 238-39, 602 P.2d at 525. This court agreed that a cross-appeal should have been filed, but determined that it may nevertheless "consider the [appellee's] contention because it is subsidiary to the other issues raised by the appellant." 61 Haw. at 239, 602 P.2d at 525. We said:

[Q]uestions presented ... "will be deemed to include every subsidiary question fairly comprised therein." Appellant raises several issues on appeal concerning the propriety of certain of the trial judge's rulings during the jury trial. These issues can only be reached if the jury trial was properly granted in the first place. As we stated in Shoemaker v. Takai, 57 Haw. 599, 607, 561 P.2d 1286, 1291 (1977) : "(I)t seems that no cross appeal is necessary in order that an appellate court may review a question closely related, in substance, to a question raised by the appeal." We believe the issue of whether the trial court erred in granting appellant's motion for jury trial is a subsidiary question underlying the other issues raised by appellant, and thus, a proper question for this court's consideration.

Id. (emphasis added, footnote omitted). In a footnote, this court further explained why it considered the issue to be a subsidiary issue:

In the present case, the proper granting of a jury trial is an issue necessarily precedent to the issue of the judge's proper conduct during that same jury trial. If we find that the jury trial was improperly granted, the issue of the propriety of the judge's conduct during that trial need not even be reached.

61 Haw. at 239 n.6, 602 P.2d at 525 n.6 (emphasis added).

United States Supreme Court precedent also supports this court's reasoning in Matter of Lorenzo's Estate. According to the Court, where the resolution of a question is "predicate to an intelligent resolution" of the question presented, it is "fairly included therein." Ohio v. Robinette, 519 U.S. 33, 38, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (citations omitted). In United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006), the Court considered the constitutionality of an anticipatory search warrant, even though the issue was not expressly raised, because answering this question was "predicate to an intelligent resolution of the question presented." 547 U.S. at 94 n.1, 126 S.Ct. 1494 (quoting Robinette, 519 U.S. at 38, 117 S.Ct. 417 ). According to the Court, "[i]t makes little sense to address what the Fourth Amendment requires of anticipatory search warrants if it does not allow them at all." Id.

In addition, in Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), the Court accepted certiorari in a case seeking to determine the process due inmates before assignment to a maximum-security facility. 545 U.S. at 220, 125 S.Ct. 2384. Before the U.S. District Court and the Court of Appeals for the Sixth Circuit, Ohio raised a threshold argument that the due process clause was not at issue because the inmates did not have a constitutional liberty interest at stake. Id. The district court concluded otherwise, and the Sixth Circuit affirmed, ruling that the inmates had a liberty interest in avoiding transfer to the facility. Id. In its certiorari application, Ohio conceded the liberty interest issue, asking the Court to determine only what process was due. 545 U.S. at 221, 125 S.Ct. 2384. The Court noted that Ohio "initially adhered" to its concession at oral argument, "but when pressed, the State backtracked" to its earlier position contesting the existence of a liberty interest. Id. The Court therefore addressed the existence of a liberty interest as a threshold question, explaining, "We need reach the question of what process is due only if the inmates establish a constitutionally protected liberty interest, so it is important to address this threshold question at the outset." Id.

These cases illustrate that "subsidiary issues" are properly considered to review possible error, rather than just to expound on reasons for affirming a decision below. A proper interpretation of HRS § 663-3 is "necessarily precedent" to whether an award of damages pursuant to the survival statute is available. If this court determines that the ICA's interpretation of HRS § 663-3 was wrong, and that a viable, stillborn fetus is not a "person" for purposes of the wrongful death statute, "the issue of the propriety of" damages under the survival statute "need not even be reached." In the instant case, before both the circuit court and the ICA, the State argued that a fetus is not a "person" for purposes of HRS § 663-3. The circuit court and ICA both ruled against the State. Castro, 137 Hawai'i at 191, 366 P.3d at 1070. Given the issues in this case, this court need address the specific questions on certiorari only if a viable yet stillborn fetus is a "person" for purposes of HRS § 663-3. Thus, "it is important to address the threshold question at the outset" of this court's decision. Wilkinson, 545 U.S. at 221, 125 S.Ct. 2384.

In addition, as noted, the ICA opinion addressed the threshold question in extensive detail before affirming the circuit court's damages award. See Castro, 137 Hawai'i at 186-91, 366 P.3d at 1065-70. Therefore, the subsidiary question in this case was raised and argued by both parties before the circuit court and the ICA. Furthermore, the question is a matter of first impression and merits rigorous analysis by this court, particularly where the public interest calls for a reasoned resolution of the issues. See Morgan v. Planning Dep't, 104 Hawai'i 173, 181, 86 P.3d 982, 990 (2004) (addressing the merits of the issue, "notwithstanding [a] technical violation" by the appellant, because "the issues raised in the instant case are of great importance").

For all of these reasons, it is appropriate and necessary to fully address the issue of whether a stillborn formerly viable fetus is a "person" for purposes of HRS § 663-3. We therefore now address the merits of the question.

B. Applying rules of statutory interpretation, there is no ambiguity. If an ambiguity exists, there is no legislative intent to include a viable fetus within the definition of "person" for purposes of the wrongful death statute.

At the outset, it is important to point out that this case does not require or compel us to generally define "personhood" for purposes of Hawai'i law; rather, our only duty is to determine whether the legislature intended to include a stillborn formerly viable fetus in the definition of a "person" for purposes of HRS § 663-3, the wrongful death statute. In this regard, as noted, this court's foremost obligation in construing HRS § 663-3 is to ascertain and give effect to the intention of the legislature. Lealaimatafao, 75 Haw. at 551, 867 P.2d at 224.

1. There is no ambiguity in HRS § 663-3.

The first three principles of statutory interpretation dictate that we examine the language of the statute itself, give effect to its plain and obvious meaning where the language is plain and unambiguous, and that we give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Citizens Against Reckless Dev., 114 Hawai'i at 193-94, 159 P.3d at 152-53. The wrongful death statute provides as follows:

Death by wrongful act. (a) When the death of a person is caused by the wrongful act, neglect, or default of any person, the deceased's legal representative, or any of the persons enumerated in subsection (b), may maintain an action against the person causing the death or against the person responsible for the death. The action shall be maintained on behalf of the persons enumerated in subsection (b), except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased's last illness and burial.
(b) In any action under this section, such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including:
(1) Loss of society, companionship, comfort, consortium, or protection;
(2) Loss of marital care, attention, advice, or counsel;
(3) Loss of care, attention, advice, or counsel of a reciprocal beneficiary as defined in chapter 572C;
(4) Loss of filial care or attention; or
(5) Loss of parental care, training, guidance, or education, suffered as a result of the death of the person;
by the surviving spouse, reciprocal beneficiary, children, father, mother, and by any person wholly or partly dependent upon the deceased person. The jury or court sitting without jury shall allocate the damages to the persons entitled thereto in its verdict or judgment, and any damages recovered under this section, except for reasonable expenses of last illness and burial, shall not constitute a part of the estate of the deceased. Any action brought under this section shall be commenced within two years from the date of death of the injured person, except as otherwise provided.

Applying the first three principles of statutory interpretation, the language of the statute is clear; it allows a wrongful death action to be brought for the death of a "person." The statute does not refer to a "fetus." Second, our sole duty is to give effect to the plain and obvious meaning of "person," which does not include an unborn fetus. Third, we are to give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Again, the language of the statute does not include a "fetus."

2. Even if there is an ambiguity in the statute, there is no legislative intent to include a viable fetus in the definition of "person" under the wrongful death statute.

There is no ambiguity in the wrongful death statute on the issue of whether a "person"

includes a stillborn formerly viable fetus. Even if there is an ambiguity, however, the remaining principles of statutory interpretation also require us to ascertain and give effect to legislative intent with respect to the meaning of the wrongful death statute. To do so, we may consider the context within which the ambiguous word appears and examine extrinsic aids, such as legislative history or the reason and spirit of the law. With respect to this analysis, HRS § 1-15 (1993) provides:

Construction of ambiguous context. Where the words of a law are ambiguous:
(1) The meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.
(2) The reason and spirit of the law, and the cause which induced the legislature to enact it, may be considered to discover its true meaning.
(3) Every construction which leads to an absurdity shall be rejected.

Applying the rules of statutory construction under HRS § 1-15 subsections (1) and (3), and examining the context within which the allegedly ambiguous word "person" appears, HRS § 663-3 uses the word "person" in three ways. The initial reference to "person" signifies the decedent ("When the death of a person is caused...."). HRS § 663-3 (emphasis added). The second reference to "person" identifies those who can be held liable for a wrongful death ("is caused by the wrongful act ... of any person."). HRS § 663-3 (emphasis added). Finally, the word "person" is used in the context of defining possible plaintiffs ("by any person wholly or partly dependent upon the deceased"). HRS § 663-3 (emphasis added).

Thus, the word "person" is used in three contexts within HRS § 663-3. By opining that a stillborn formerly viable fetus qualifies as a person under the survival statute, the Chief Justice implicitly construes "person" in the first context of the wrongful death statute only, as a decedent, to include a fetus. Yet, it would be absurd to construe "person" in the second context, as a tortfeasor, or the third context, as one dependent on the deceased, to include a fetus. The legislature, however, uses the same word, "person," in all three contexts. The Chief Justice would thus ascribe a different definition of "person" in only one context, that of the decedent, to include a fetus. Respectfully, we believe such an interpretation not only ignores the remainder of the statute, contrary to HRS § 1-15(1), but also leads to an absurdity, in violation of HRS § 1-15(3).

A related common law principle of statutory construction is implicated through the legislature's use of the word "person" in three separate contexts within HRS § 663-3. As this court stated in a recent case:

Even if we were to assume that the phrase "residence, including yard" is ambiguous, the district court's interpretation was erroneous under comparable principles of statutory interpretation used in resolving ambiguities within a statute.
The first of such principles states that "[w]here the meaning of a word is unclear in one part of a statute but clear in another part, the clear meaning can be imparted to the unclear usage on the assumption that it means the same thing throughout the statute." Kam v. Noh, 70 Haw. 321, 325, 770 P.2d 414, 416 (1989). This means that, "[i]n the absence of an express intention to the contrary, words or phrases used in two or more sections of a statute are presumed to be used in the same sense throughout." Id. at 325-26, 770 P.2d at 417 (quoting Gaspro, Ltd. v. Comm'n of Labor & Indus. Relations, 46 Haw. 164, 172, 377 P.2d 932, 936 (1962) ) (internal quotation marks omitted).

State v. Guyton, 135 Hawai'i 372, 380, 351 P.3d 1138, 1146 (2015) (emphasis added). The Kam case cited in the quotation above cites to 2A Sutherland Statutory Construction, § 47.16 (4th ed. 1984) in support of the same principle. Kam, 70 Haw. at 325, 770 P.2d at 416-17.

Applying this common law rule of statutory interpretation, legislative intent, as further discussed below, displays no "express intention" to construe "person" as "decedent" any differently from "person" as "tortfeasor" or "person" as one "dependent on the deceased." Despite the lack of any legislative intent to ascribe differing meanings to the word "person" within HRS § 663-3, and contrary to principles of statutory interpretation in HRS § 1-15, the Chief Justice implicitly construes "person" in the first context only, as decedent, to include a fetus. As noted, however, it would be absurd to construe "person" to include a fetus for the second and third contexts in which the word appears. Moreover, as explained below, there is simply nothing to indicate the legislature intended to give differing meanings to the word "person" within HRS § 663-3.

In this regard, legislative history is also important in determining legislative intent. The legislature initially passed the wrongful death statute as Act 245 of 1923. This original predecessor statute to HRS § 663-3 provided in pertinent part:

When the death of a person is caused by the wrongful act or neglect of another, any person who was wholly or partly dependent upon such decedent and who has no remedy for compensation under the provisions of Act 221 of the Session Laws of Hawaii, 1915, as amended, may maintain an action for damages against the person causing the death. ...

1923 Haw. Sess. Laws Act 245 at 308. The critical opening language of HRS § 663-3, "[w]hen the death of a person is caused by the wrongful act" has remained unchanged from 1923 to the present. (Emphasis added.)

To ascertain legislative intent of a statute, courts may look to legislative history, including committee reports. Ahn v. Liberty Mut. Fire Ins. Co., 126 Hawai'i 1, 11, 265 P.3d 470, 480 (2011). The House Judiciary Committee stated in relevant part as follows:

Your Committee on Judiciary, to which was referred House Bill No. 395, entitled, "An Act to prevent homicides[ ]" ... reports as follows:
That the purpose of the Bill is to provide that an action for damages on account of wrongful act or negligence of another, causing death, may be brought when the same can not [sic] be brought at present under the laws of the Territory. Your Committee believes that this action should be limited, however, to those actually damaged by the death, and therefore has prepared an amended Bill, which it submits herewith.

H. Stand. Comm. Rep. No 519, in 1923 House Journal, at 1079.

Later, the Senate Judiciary Committee reported in relevant part:

This Bill enlarges the right of suit and recovery for death by wrongful act. It provides that any person wholly or partly dependent upon any decedent, whose death has been caused by the wrongful act or neglect of another, may maintain a suit for damages.
This is not a radical bill. It is drafted very closely upon statutes in other jurisdictions, the majority of which have a similar law. It enlarges the common law recovery which we believe to be too limited.

S. Stand. Comm. Rep. No. 437, in 1923 Senate Journal, at 977.

Thus, when initially enacted, a wrongful death cause of action existed only for those financially dependent on a "decedent." Thus, it is eminently clear that upon promulgation, the wrongful death statute did not include a stillborn formerly viable fetus within the definition of a "person." In addition, with respect to the reference to "statutes in other jurisdictions," it appears no state recognized a wrongful death cause of action for a viable fetus until 1949. See Dena M. Marks, Person v. Potential: Judicial Struggles to Decide Claims Arising from the Death of an Embryo or Fetus and Michigan's Struggle to Settle the Question, 37 Akron L. Rev. 41, 44 (2004), citing to Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). Thus, nothing in the legislative history of the original statute indicates the 1923 legislature intended to include a viable fetus in the definition of "person." There is nothing in the subsequent legislative history of the wrongful death statute to suggest any change to this legislative intent.

This is because in comparing the 1923 statute with HRS § 663-3, it is apparent that the original statute has been amended in various ways that do not bear on the issue in this case. The only major change between the 1923 statute and HRS § 663-3 was to expand the class of possible plaintiffs to include specified categories of persons not financially dependent on the decedent. This conceptual amendment occurred in 1955. 1955 Haw. Sess. Laws Act 205 at 184. The committee report discussing the reasons for this expansion of the class of possible plaintiffs does not indicate any intent to include viable fetuses within the definition of "person" as decedent under HRS § 663-3. In relevant part, the House Judiciary Committee stated as follows:

1. The purpose of this bill is to broaden the right of action and the extent of recovery in wrongful death suits.
....
3. This bill, as amended, broadens the wrongful death statute by permitting a deceased person's spouse, children, father, mother, or dependents to recover for the wrongful death of the deceased....
The right of action under the present wrongful death action is based on the archaic principal of dependency.
The provisions of this bill are consistent with the theory of the majority of the statutes in the United States. This bill permits recovery for not only pecuniary losses but also for loss of love and affection, including (1) loss of society, companionship, comfort, consortium or protection, (2) loss of marital care, attention, advice or counsel, (3) loss of filial care or attention or, (4) loss of parental care, training, guidance or education.
4. The provisions of this bill follow, in substance, the doctrine of the case of Gabriel [v]. Margah, 37 Haw. 571, which extended the interpretation of the existing statutory right of action.

H. Stand. Comm. Rep. No. 581, in 1955 House Journal, at 772-73.

As indicated, the intent of the 1955 legislative amendments was to follow this court's 1947 opinion in Gabriel, 37 Haw. 571, discussed briefly in footnote 9, supra. As mentioned there, this court recognized a common law cause of action for wrongful death in Kake, 2 Haw. 209. The legislature then passed a wrongful death statute in 1923. In Gabriel, this court held that the legislative enactment did not abrogate the common law wrongful death cause of action, and expanded Hawaii's common law wrongful death cause of action to allow claims by parents for the death of a child. Gabriel, 37 Haw. at 580. The 1955 legislature's stated intent was merely to follow Gabriel and eliminate the dependency requirement. Gabriel recognized a common law wrongful death cause of action for the parents of a minor child, not a stillborn fetus. It did nothing to affect the definition of "person" as a decedent under the wrongful death statute.

In addition, as noted earlier, by 1955, when the wrongful death statute was amended to conform with Gabriel and the survival statute was enacted, the Minnesota Supreme Court in the Verkennes case had recognized a wrongful death cause of action for a stillborn viable fetus. However, the legislature made no reference to that case, and cited only to Gabriel. Again, Gabriel merely recognized a common law wrongful death cause of action for the death of a child born alive. Thus, contrary to the Chief Justice's opinion, nothing in the 1955 legislative history indicates that the legislature intended to "broaden the right of recovery" to the extent of including a fetus in the definition of "person" for purposes of HRS § 663-3.

In addition, when the wrongful death statute was first enacted in 1923, Hawai'i statutory law had a general definition of "person":

SECTION 17. The word person, or words importing persons, for instance, another, others, any, any one, anybody, and the like, signify not only persons, but corporations, societies, communities, assemblies, inhabitants of a district, or neighborhood, or persons known or unknown, and the public generally, where it appears, from the subject matter, the sense and the connection in which such words are used, that such construction is intended.

The Civil Code of the Hawaiian Islands 1859, page 8. This statute remains in place, with minor amendments, as HRS § 1-19 (2009), which reads as follows:

"Person", "others", "any", etc. The word "person", or words importing persons, for instance, "another", "others", "any", "anyone", "anybody", and the like, signify not only individuals, but corporations, firms, associations, societies, communities, assemblies, inhabitants of a district, or neighborhood, or persons known or unknown, and the public generally, where it appears, from the subject matter, the sense and connection in which such words are used, that such construction is intended.

The legislative change from "signify not only persons" to "signify not only individuals" also occurred in 1955. Act 57 of 1955, Section 1(e). Webster's defines "individual" in relevant part as:

1 a: a particular being or thing as distinguished from a class, species, or collection: as (1): a single human being as contrasted with a social group or institution [sic] (2): a single organism as distinguished from a group
b: a particular person [sic]
2: an indivisible entity ....

Merriam Webster's Collegiate Dictionary (1993) at 593.

Whether a "person" signifies a "person" or an "individual," applying rules of statutory construction, the plain language of "person" or "individual" does not include a viable fetus. A fetus is not an "individual." If the term is ambiguous, which it is not, we can examine legislative intent. The Senate and House Judiciary committee reports regarding this change from "signify not only persons" to "signify not only individuals," were part of S.B. 751 of 1955, which included technical changes to other statutes governing statutory construction. S. Stand. Comm. Rep. No. 214, in 1955 Senate Journal, at 751-52; H. Stand. Comm. Rep. No. 551, in 1955 House Journal, at 761. The committee reports merely stated that the change was being made, but gave no reason for the change. Id. There is no indication that the legislature intended that the amendment redefine "person" to include a viable fetus.

Common law principles of statutory interpretation also suggest examining the "spirit and intent of the law" in order to determine legislative intent. In doing so, we note that Act 245 of 1923, the original wrongful death statute, was introduced as House Bill 395 of 1923. At the time of its introduction, it was entitled "An Act to prevent homicides." See H. Stand. Comm. Rep. No. 519, in 1923 House Journal, at 1079. The index to the Revised Laws of Hawai'i (1915), page 1683 includes the term "homicides," and instructs the reader to see "[m]urder" and "[m]anslaughter" under "[c]riminal [l]aw." The murder and manslaughter statutes at the time, Sections 3862 and 3866 of the Revised Laws of Hawai'i (1915), defined those crimes as the "killing" of a "human being." Although "human being" was not further statutorily defined at the time, the plain meaning of the word indicates a person already born alive. Thus, the wrongful death statute was introduced as "An Act to prevent homicides," and the homicide statutes did not indicate they applied to fetuses.

Consistent with the 1923 homicide statutes, HRS § 707-700 (2014) of the Hawai'i Penal Code now clearly defines "person" as "a human being who has been born and is alive." Thus, this legislative history also indicates that the legislature did not intend to include a viable fetus in the definition of "person" for purposes of the wrongful death statute.

Additional evidence of this legislative intent exists. The legislature recognizes the distinction between "persons" and "fetuses" as well as "deaths" and "fetal deaths." The State Public Health Statistics Act, HRS Chapter 338 Part I (2010), distinguishes between "deaths" and "fetal deaths," and HRS § 338-1 (2010) defines "fetal death," as a death of a fetus "irrespective of the duration of pregnancy." "Death certificates" and "fetal death certificates" are separate terms under HRS § 338-9 (2010). Nowhere in the Hawaii Revised Statutes is a "person" defined to include a "fetus."

Therefore, principles of statutory interpretation do not support the Chief Justice's and ICA's opinions. The legislative history and statutory scheme do not indicate any legislative intent to include a stillborn formerly viable fetus in the definition of a "person" under HRS § 663-3. Pursuant to Lealaimatafao, this conclusion ends the inquiry. We go on, however, to address additional reasons why it is erroneous to construe the wrongful death statute to include a cause of action for a stillborn fetus.

C. Construing "person" under HRS § 663-3 to include a stillborn formerly viable fetus would subject a woman to potential civil liability if her negligence causes fetal death or if she exercises abortion rights.

Construing "person" under HRS § 663-3 to include a stillborn viable fetus would, without more, subject to civil liability a woman carrying a fetus whose negligence caused a viable fetus to die in utero or who exercised her rights to terminate a pregnancy under HRS § 453-16. In other words, a parent representing the estate of the fetus could sue a woman carrying a viable fetus; construing HRS § 663-3 to include a stillborn formerly viable fetus in the definition of a "person" would cause a woman exercising abortion rights under HRS § 453-16, or whose negligence causes the death of a viable fetus, to be subject to lawsuits.

The ICA's holding did not preclude these possibilities. The Chief Justice attempts to exclude such potential liability by indicating he would rule as a matter of law that a pregnant woman does not owe a duty of care to the fetus she carries. Opinion of Recktenwald, C.J., at Section IV(A), citing to Remy v. MacDonald, 440 Mass. 675, 801 N.E.2d 260 (2004), an opinion from the Supreme Judicial Court of Massachusetts.

The Remy case is distinguishable. Remy involved a lawsuit brought by a father on behalf of a child born alive against a mother for injuries allegedly suffered in utero due to the mother's negligence. 440 Mass. at 675-76, 801 N.E.2d at 262. Unlike Hawai'i, however, and as noted by the Massachusetts Supreme Judicial Court, the Massachusetts wrongful death statute expressly includes a viable fetus, whether or not born alive, in the definition of "person." 440 Mass. at 681, 801 N.E.2d at 265. In addition, Massachusetts law also recognizes a viable fetus as a "person" for purposes of its motor vehicle homicide statute. 440 Mass. at 681 n.6, 801 N.E.2d at 266 n.6. Thus, it appears that unless that court created an exception, a woman could have also been held liable for wrongful death of a viable fetus. Hawai'i law is distinguishable, as no cause of action for the wrongful death of fetus is provided by law, and no cause of action should be recognized, obviating any need for an exception.

More importantly, however, the need to fashion an exception for a woman's potential liability illustrates that the legislature never intended to include a stillborn formerly viable fetus within the definition of "person" under HRS § 663-3. If a stillborn formerly viable fetus is a "person" for purposes of HRS § 663-3, not only a negligent woman, but a woman exercising her rights to terminate a pregnancy under HRS § 453-16 would be subject to civil liability under HRS § 663-3. See footnote 15, supra. If the legislature intended to include a viable fetus within the definition of "person" under the wrongful death statute, it undoubtedly would have addressed the obvious conflict with HRS § 453-16.

D. Analysis of other arguments.

1. The laws of other states that allow wrongful death actions for stillborn fetuses do not govern, as Hawai'i law differs and controls.

According to the ICA, forty-one states and the District of Columbia now permit wrongful death actions to be brought on behalf of stillborn formerly viable fetuses. Castro, 137 Hawai'i at 186, 366 P.3d at 1065. The proper focus for this court, however, is not whether other states recognize such a cause of action but whether the Hawai'i legislature intended to include a stillborn formerly viable fetus in the definition of "person" for purposes of HRS § 663-3. As noted above, the legislative history of Hawaii's wrongful death statute does not indicate such an intent. The language and legislative intents of other states might differ.

It is important to note that of the forty-one states cited in the ICA opinion as allowing wrongful death claims for stillborn formerly viable fetuses, whether originally by judicial opinion or by statute, Castro, 137 Hawai'i at 187 n.8, 366 P.3d at 1066 n.8., thirty-five criminalize injuries to fetuses, as compared to Hawai'i, which does not. Many of those states even allow criminal prosecutions for offenses against non-viable fetuses. Moreover, it appears that at least six states even allow wrongful death actions to be brought for the death of a fetus before it reaches viability. See Marks, 37 Akron L. Rev. at 71.

The ICA found unconvincing the State's contention that it would be inconsistent to allow a civil claim where a criminal prosecution would be prohibited. Castro, 137 Hawai'i at 190, 366 P.3d at 1069. The ICA points out that Hawai'i is one of only nine states that still apply the "born alive" rule and have not amended their criminal homicide statutes to include unborn children as victims. 137 Hawai'i at 188, 366 P.3d at 1067. Although the ultimate question is whether the legislature intended to include a viable fetus in the definition of a "person" under HRS §§ 663-3, it is relevant that the Hawai'i legislature has actually chosen to remain in the minority as to the "born alive" rule for criminal prosecutions.

The ICA also points out that of the nine states still applying the "born alive" rule, seven, Connecticut, Delaware, New Hampshire, New Mexico, Oregon, Vermont, and Washington, allow a wrongful death action on behalf of a fetus, while New Jersey specifically rejects it, and Colorado remains undecided. 137 Hawai'i at 188-89, 189 n.7, 366 P.3d at 1067-68, 1068 n.7. The ICA thus reasons that the existence of the "born alive" rule in a state's penal code does not foreclose a civil cause of action for the wrongful death of a viable fetus. 137 Hawai'i at 189, 366 P.3d at 1068. By the same token, however, there are six states, California, Florida, Iowa, Maine, New Jersey, and New York, which specifically prohibit wrongful death actions on behalf of unborn, viable fetuses. 137 Hawai'i at 186, 366 P.3d at 1065. Four of those six states, California, Florida, Iowa, and Maine criminalize fetal injuries, yet do not recognize a wrongful death cause of action for a fetus. Thus, this argument goes both ways.

2. It is the legislature's prerogative to determine policy with respect to who qualifies as a "person" for purposes of the wrongful death statute.

It bears repeating that this court's foremost obligation in construing HRS § 663-3 is to ascertain and give effect to the intent of the legislature. Lealaimatafao, 75 Haw. at 551, 867 P.2d at 224. The ICA points out that in State v. Aiwohi, 109 Hawai'i 115, 123 P.3d 1210 (2005), this court stated that even if the statutory language regarding whether a fetus was a "person" for purposes of criminal liability was perceived to be ambiguous, in criminal cases, the rule of lenity would have required that the statute be strictly construed in favor of the defendant and against the prosecution. Castro, 137 Hawai'i at 188, 366 P.3d at 1067. The ICA reasons that states allowing wrongful death actions while not criminalizing injuries to fetuses often rely on the "well-established principle that, while civil causes of action are remedial in nature and therefore are generally construed liberally, criminal statutes are construed strictly and in favor of the accused." 137 Hawai'i at 189, 366 P.3d at 1068. Although this is true, this court has specifically ruled that in construing HRS § 663-3, legislative intent controls. It is therefore improper for this court to construe HRS § 663-3 in a manner that clearly contravenes legislative intent.

The ICA also found persuasive the following rationale of the Vermont Supreme Court:

Numerous reasons have been assigned by the several jurisdictions for reaching the conclusion to which we subscribe. The ones commonly given, and in our view convincing, are summarized in White v. Yup, 85 Nev. 527, 536, 458 P.2d 617, 622 (1969) as follows:
A. If a child, injured when a viable fetus as a result of another's negligence, has a cause of action when born, then it can make no difference in liability whether death occurs just prior to or just after birth.
B. A viable unborn child is, in fact, biologically speaking, a presently existing person and a living human being, because it has reached such a state of development that it can presently live outside the female body, as well as within it.
C. If no right of action is allowed, there is a wrong inflicted for which there is no remedy. Where negligent acts produce a stillbirth and a right of action is denied, an incongruous result is produced. For example, if a doctor acted negligently while delivering a baby and it died, the doctor would be immune from lawsuit. However, if he badly injured the child, the doctor would be exposed to liability. Under such a rule, there is the absurd result that the greater the harm, the better the chance of immunity, and the tortfeasor could foreclose his own liability. (Citations omitted in each instance).

Castro, 137 Hawai'i at 190, 366 P.3d at 1069 (citing Vaillancourt v. Med. Ctr. Hosp. of Vt., Inc., 139 Vt. 138, 142-43, 425 A.2d 92, 94-95 (1980) ).

With respect to point (A) in the excerpt above, the Chief Justice and ICA correctly note that under Hawai'i common law, a child subsequently born alive may recover damages for negligently inflicted prenatal injuries. Opinion of Recktenwald, C.J., at Section II(B); Castro, 137 Hawai'i at 190, 366 P.3d at 1069 (citing to Omori v. Jowa Haw. Co., Ltd., 91 Hawai'i 157, 161-62, 981 P.2d 714, 718-19 (App. 1999), aff'd as modified, 91 Hawai'i 146, 981 P.2d 703 (1999) ). That, however, is the salient point; such recovery is permitted under Hawai'i common law, which the courts define. By contrast, with respect to points (A) and (B), it is not for this court to redefine a "person" for purposes of HRS § 663-3 ; this is an issue for the legislature.

This analysis is also consistent with the Restatement (Second) of Torts ("Restatement"). As noted in Bynum v. Magno, 106 Hawai'i 81, 101 P.3d 1149 (2004), this court has many times relied on the Restatement as persuasive authority. Bynum, 106 Hawai'i at 86 n.12, 101 P.3d at 1155 n.12. Restatement § 869 (1979) provides:

§ 869 Harm to Unborn Child
(1) One who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.
(2) If the child is not born alive, there is no liability unless the applicable wrongful death statute so provides.

Thus, Restatement § 869 subsection (1) recognizes that whether liability exists for prenatal injuries to a fetus born alive is an issue governed by common law, which generally allows recovery for such injuries; as noted, Hawai'i common law is consistent with subsection (1). Omori, 91 Hawai'i at 161-62, 981 P.2d at 718-19, aff'd as modified, 91 Hawai'i 146, 981 P.2d 703.

Subsection (2) of § 869 makes clear, however, that when a fetus is not born alive, "there is no liability unless the applicable wrongful death statute so provides." Thus, Subsection (2) is also consistent with our common law, which provides that whether wrongful death liability exists is an issue to be decided by the legislature. See Lealaimatafao, 75 Haw. at 551, 867 P.2d at 224. Again, Section IV(B) above explains that our legislature has not provided for such liability for a stillborn viable fetus. Therefore, respectfully, the Chief Justice and ICA err by attempting to create such liability under common law.

The California Supreme Court's opinion rejecting a wrongful death cause of action for a viable fetus makes a similar point:

We have carefully considered these arguments, each of which finds support in one or more of the out-of-state decisions recognizing a cause of action for the wrongful death of a fetus. They are not all equally convincing, and some are put in serious question by the decisions rejecting this cause of action and by the legal scholars. But we need not enter this debate, less still attempt to settle it. The considerations advanced by plaintiffs would be relevant if we were called upon to decide whether California should adopt the proposed cause of action as a matter of judge-made law; they are not persuasive when, as here, the cause of action for wrongful death in this state is a pure creature of statute.

Justus, 139 Cal.Rptr. at 102-03, 565 P.2d at 126-27 (emphasis added; internal citations omitted). As stated by the California Supreme Court, the issue of whether a wrongful death cause of action should exist for a fetus is an issue for the legislature.

In addition, the Iowa Supreme Court's rationale in rejecting a wrongful death cause of action for a viable fetus is instructive and concludes with the points discussed in Sections IV(B)(1) and (2) above, that our obligation is to follow the clear language of a wrongful death statute and that it makes no sense to ascribe a different meaning to "person" in just one context, as a decedent:

In construing statutes we search for the legislative intent as shown by what the legislature said, rather than what it should or might have said. Rule 344(f), par. 13, Rules of Civil Procedure. If the language of a statute when given its plain and rational meaning is precise and free from ambiguity, no more is necessary than to apply to the words used their ordinary sense in connection with the subject considered. Maguire v. Fulton, Iowa, 179 N.W.2d 508, 510. These rules are applicable here. We hold 'person' as used in Code section 611.20 means only those born alive. How indeed could an unborn child be a person with a liability as referred to in the statute?

McKillip, 191 N.W.2d at 709 (emphases added).

3. Hawaii's common law tort of negligent infliction of emotional distress allows recovery under these circumstances, eliminating the lack of other tort remedy concern expressed by other states.

Furthermore, in subsection (C) from the Vaillancourt opinion excerpted above, which was quoted favorably by the ICA in its opinion, Castro, 137 Hawai'i at 190, 366 P.3d at 1069, the Vermont Supreme Court posited another reason for recognizing a cause of action for wrongful death for the death of a viable fetus: the alleged lack of other available tort remedies. Vaillancourt, 139 Vt. at 94-95, 425 A.2d at 142-43. The Chief Justice also opines that "to not allow hedonic damages in this case would create perverse incentives for the tortfeasor." Opinion of Recktenwald, C.J., at Section IV(A).

Respectfully, however, the concerns expressed by the Vermont Supreme Court, the ICA, and the Chief Justice do not exist in Hawaii. In Hawaii, a tortfeasor who causes a fetus to be stillborn would not escape liability. Although such a result might be true in Vermont and other states, a tort remedy exists for the loss of a viable fetus under Hawai'i's independent common law tort of negligent infliction of emotional distress. As concluded by the circuit court:

79. A plaintiff may recover for Negligent Infliction of Emotional Distress, absent any physical manifestation of her psychological injury or actual physical presence within a zone of danger, where a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case. Doe Parents No. 1 v. Dept. of Educ., 100 Hawai'i 34, 69, 58 P.3d 545, 580 (2002).

In fact, the circuit court awarded damages of $250,000 to Castro individually under this common law tort cause of action; this part of the judgment is not controlled by whether or not a stillborn fetus is a "person" for purposes of HRS § 663-3.

According to Denise E. Antolini, Punitive Damages in Rhetoric and Reality: An Integrated Empirical Analysis of Punitive Damages Judgments in Hawaii, 1985-2001, 20 J.L. & Pol. 143, 172-73 (2004) (internal footnotes omitted):

In 1970, Hawaii sparked a national judicial trend by abolishing the physical injury rule in negligent infliction of emotional distress ("NIED") cases, allowing the claim as an independent cause of action. Hawai'i courts recognized NIED claims even based on injury to property alone. In Rodrigues v. State of Hawaii,[ ] distressed owners of a Maui home that flooded as a result of the State's negligent failure to clear a plugged culvert were allowed to recover, even though they had not yet moved in, incurred only property damage, and suffered no physical injury related to the flooding incident. A series of cases followed that put Hawaii in a field of its own in this area of the law, creating a novel and expansive test that seems to still be broadening. Under Hawaii law, plaintiffs may recover even for NIED experienced from post-accident news of the death of a pet,[ ] making Hawaii one of only a few jurisdictions in the country to recognize this tort.
Hawaii NIED law continued to be broadly interpreted in subsequent cases like the 1989 Masaki v. General Motors case,[ ] which allowed recovery by parents who suffered emotional distress upon seeing their adult son in the hospital after a severe accident. The court took another liberal turn in the 1999 case John and Jane Roes v. FHP, Inc.,[ ] holding that airport baggage handlers who were exposed to, but not ultimately infected by, HIV-tainted blood from a burst package could claim NIED for the period of time during which they had a legitimate fear of AIDS. Without doubt, Hawaii has established itself as the national standard[-]bearer of liberal NIED rulings.

Thus, the availability of Hawaii's independent tort of negligent infliction of emotional distress obviates the "lack of other remedy" rationale for the need to recognize a wrongful death cause of action for a stillborn formerly viable fetus.

Finally, even if the common law cause of action of negligent infliction of emotional distress did not exist, the intent of the legislature controls in our interpretation of HRS § 663-3. For all the reasons stated above, the Hawai'i legislature did not intend to include a stillborn formerly viable fetus within the definition of "person" under HRS § 663-3. It is not for this court to substitute our judgment for the legislature's decision.

IV. Conclusion

For the reasons stated above, the ICA's Judgment on Appeal as to the $250,000 awarded to Castro individually for negligent infliction of emotional distress and the $100,000 awarded to Castro for loss of filial consortium should be affirmed, but the $250,000 awarded to the estate of the fetus for loss of life and loss of enjoyment of life should be set aside. We construe Justice Nakayama's opinion as agreeing that a fetus does not qualify as a "person" under the wrongful death and survival statutes, but joining with the Chief Justice in a judgment on appeal that also allows the estate of the fetus to recover in this case because the State did not specifically raise the issue on certiorari. 
      
      HRS § 663-3 (Supp. 1997) ("Death by wrongful act") provides in pertinent part:
      (a) When the death of a person is caused by the wrongful act, neglect, or default of any person, the deceased's legal representative, or any of the persons enumerated in subsection (b), may maintain an action against the person causing the death or against the person responsible for the death. The action shall be maintained on behalf of the persons enumerated in subsection (b), except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased's last illness and burial.
     
      
      The Honorable Rom A. Trader presided.
     
      
      On October 24, 2011, this case was reassigned to Judge Karen T. Nakasone, as Judge Trader had been assigned to the criminal division.
     
      
      HRS § 663-7 (1993) ("Survival of cause of action") provides:
      A cause of action arising out of a wrongful act, neglect, or default, except a cause of action for defamation or malicious prosecution, shall not be extinguished by reason of the death of the injured person. The cause of action shall survive in favor of the legal representative of the person and any damages recovered shall form part of the estate of the deceased.
     
      
      Petitioners challenged certain FOFs in their appeal to the ICA. Castro v. Melchor, 137 Hawai'i at 185, 366 P.3d at 1064. The FOFs reproduced here either were not challenged, or were upheld by the ICA. Petitioners did not further contest the circuit court's FOFs in their application for certiorari.
     
      
      Under Hawaii's survival statute, HRS § 663-7, the legal representative of a decedent's estate may recover damages on behalf of the decedent's estate. Under Hawaii's wrongful death statute, HRS § 663-3, specified relatives of a decedent can bring a wrongful death action against the person responsible for causing the decedent's death.
      We do not address the circuit court's award of damages for loss of filial consortium pursuant to HRS § 663-3, the wrongful death statute, because Petitioners did not challenge this holding of the ICA in their application for writ of certiorari. See Hawai'i Rules of Appellate Procedure Rule 40.1(d)(1) ("Questions not presented according to this paragraph will be disregarded.").
      However, we discuss the legislative history of both statutes below, because the survival statute, HRS § 663-7, was implemented as part of a bill that revised and expanded the wrongful death statute, HRS § 663-3.
     
      
      HRS § 663-8.5(a) (Supp. 1992) ("Noneconomic damages; defined") provides:
      (a) Noneconomic damages which are recoverable in tort actions include damages for pain and suffering, mental anguish, disfigurement, loss of enjoyment of life, loss of consortium, and all other nonpecuniary losses or claims.
     
      
      Justice McKenna argues that our common law provides that whether wrongful death liability exists is an issue to be decided by the legislature. Opinion of McKenna, J. at 38 (citing Lealaimatafao v. Woodward-Clyde Consultants, 75 Haw. 544, 551, 867 P.2d 220, 224 (1994) ). However, Lealaimatafao makes clear that this court's obligation is to ascertain and give effect to the intention of the legislature. 75 Haw. at 551, 867 P.2d at 224. Because the intent of the legislature is to permit broad recovery under the survival statute, we disagree with Justice McKenna that the ICA erred by attempting to "create" liability under common law. Opinion of McKenna, J. at 38. Justice McKenna also cites for support to the Restatement (Second of Torts) § 869 (1979), which provides:
      (1) One who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.
      (2) If the child is not born alive, there is no liability unless the applicable wrongful death statute so provides.
      Opinion of McKenna, J. at 37 (citing Restatement (Second) of Torts, § 869 ).
      However, the comments to § 869 further provide:
      If the child is not born alive, there may still be the possibility of an action for its wrongful death, brought by the proper person under the wrongful death statute of the particular jurisdiction. Whether this action can be maintained will depend upon the language of the applicable statute and its construction by the court in determining whether the statute is intended to create the cause of action. The language of the statutes varies and no general rule can be stated for their construction.
      Restatement (Second) of Torts, § 869, cmt. f.
     
      
      Hawai'i Revised Statutes ("HRS") § 663-3 (2016), Hawaii's wrongful death statute, provides now and did at all times relevant to this lawsuit as follows:
      Death by wrongful act. (a) When the death of a person is caused by the wrongful act, neglect, or default of any person, the deceased's legal representative, or any of the persons enumerated in subsection (b), may maintain an action against the person causing the death or against the person responsible for the death. The action shall be maintained on behalf of the persons enumerated in subsection (b), except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased's last illness and burial.
      (b) In any action under this section, such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including:
      (1) Loss of society, companionship, comfort, consortium, or protection;
      (2) Loss of marital care, attention, advice, or counsel;
      (3) Loss of care, attention, advice, or counsel of a reciprocal beneficiary as defined in chapter 572C;
      (4) Loss of filial care or attention; or
      (5) Loss of parental care, training, guidance, or education, suffered as a result of the death of the person;
      by the surviving spouse, reciprocal beneficiary, children, father, mother, and by any person wholly or partly dependent upon the deceased person. The jury or court sitting without jury shall allocate the damages to the persons entitled thereto in its verdict or judgment, and any damages recovered under this section, except for reasonable expenses of last illness and burial, shall not constitute a part of the estate of the deceased. Any action brought under this section shall be commenced within two years from the date of death of the injured person, except as otherwise provided.
     
      
      HRS § 663-7 (2016), Hawai'i's survival statute, provides now and did at all times relevant to this lawsuit as follows:
      § 663-7 Survival of cause of action. A cause of action arising out of a wrongful act, neglect, or default, except a cause of action for defamation or malicious prosecution, shall not be extinguished by reason of the death of the injured person. The cause of action shall survive in favor of the legal representative of the person and any damages recovered shall form part of the estate of the deceased.
     
      
      The remaining defendants and petitioners are Leroy Melchor, Wanna Bhalang, and Tomi Bradley (all in their official capacities), as well as the State of Hawai'i and the Hawai'i Department of Public Safety.
     
      
      The Legislature first enacted a wrongful death statute as Act 245 of 1923. See n.1, supra, for the current version.
     
      
      The Legislature first enacted a survival statute as Act 205 of 1955. See n.2, supra, for the current version.
     
      
      "Hedonic damages" are "(d)amages that attempt to compensate for the loss of the pleasure of being alive." Black's Law Dictionary 472 (10th ed. 2014).
     
      
      The condensed factual background and procedural history in this opinion is mainly derived from the published opinion of the ICA in Castro, 137 Hawai'i 179, 366 P.3d 1058, which provides details regarding the underlying claims and procedural history.
     
      
      The Honorable Karen T. Nakasone presided.
     
      
      In Hun v. Center Props., 63 Haw. 273, 626 P.2d 182 (1981), this court stated:
      Although we need not resolve this question here, we note that an independent common law right of action for wrongful death may have survived despite the enactment of the death statute.
      A common law right to recover for wrongful death was established by this court in Kake v. Horton, 2 Haw. 209 (1860). Subsequent to that, the wrongful death statute was enacted by the legislature. This Court held in Gabriel v. Margah, 37 Haw. 571 (1947), that the wrongful death statute did not abrogate the common law right of action adopted in Kake. But see, Rolfing v. Moses Akiona Ltd., 45 Haw. 373, 394, 369 P.2d 96, 106 (1961), "where in dicta, the court states that the common law action for wrongful death was merged with the statutory action."
      63 Haw. at 279 n.3, 626 P.2d at 186 n.3.
     
      
      The State did not, however, move for summary judgment on Castro's claims under the wrongful death statute on her own behalf.
     
      
      In a 1990 opinion in Wade v. U.S., 745 F.Supp. 1573 (D. Haw. 1990), the United States District Court for the District of Hawai'i, in predicting that this court would adopt the majority position allowing a cause of action for the wrongful death of a viable fetus and then so holding, opined that the Hawai'i legislature never considered the issue of whether a viable fetus is a "person" for purposes of the wrongful death statute and that nothing in the legislative history associated with the statute touches upon the issue. 745 F.Supp. at 1577, 1579. For the reasons outlined in this opinion, we respectfully disagree with this statement and holding.
     
      
      The 1915 bound volume was the latest version of Hawai'i's statutes before the 1925 bound volume. There were no amendments to the homicide statutes between 1915 and 1925. The wrongful death statute was passed in 1923.
     
      
      Construing a stillborn formerly viable fetus as a person under HRS § 663-3 raises additional legal issues that might need to be addressed by the legislature, including whether any death benefits under state law would become available for the stillbirth of a viable fetus. The absence of such statutory enactments further indicates a lack of legislative intent to include a viable fetus in the definition of "person" under HRS § 663-3.
     
      
      HRS § 453-16 (2013) provides as follows:
      Intentional termination of pregnancy; penalties; refusal to perform. (a) No abortion shall be performed in this State unless:
      (1) The abortion is performed by a licensed physician or surgeon, or by a licensed osteopathic physician and surgeon; and
      (2) The abortion is performed in a hospital licensed by the department of health or operated by the federal government or an agency thereof, or in a clinic or physician's or osteopathic physician's office.
      (b) Abortion shall mean an operation to intentionally terminate the pregnancy of a nonviable fetus. The termination of a pregnancy of a viable fetus is not included in this section.
      (c) The State shall not deny or interfere with a female's right to choose or obtain an abortion of a nonviable fetus or an abortion that is necessary to protect the life or health of the female.
      (d) Any person who knowingly violates subsection (a) shall be fined not more than $1,000 or imprisoned not more than five years, or both.
      (e) Nothing in this section shall require any hospital or any person to participate in an abortion nor shall any hospital or any person be liable for a refusal.
      Subsection (c) of this statute, which precludes the State from denying "a female's right to choose or obtain an abortion ... necessary to protect the life or health of the female[,]" was added in 2006. 2006 Haw. Sess. Laws Act 35, § 2 at 39. This was the first major substantive change to the predecessor statute passed in 1970, which decriminalized abortion. 1970 Haw. Sess. Laws Act 1, at 1-2.
      When passing the original bill, the Conference Committee Report stated:
      There are many cases where medical indications which may justify an abortion do not become evident until the second trimester or even in the third trimester of pregnancy. For example, a patient may inadvertently fail to inform her doctor about having contracted rubella in the early stages of pregnancy or where a possible cancerous condition of the cervix or uterus may be discovered in the second or third trimester of pregnancy. In all of these cases, the decision requires a medical judgement as to whether the particular medical indications justify an abortion. This aspect should therefore not be regulated by law. The bill has been amended to define abortion as the intentional termination of a non-viable fetus and such definition excludes the intentional termination of a viable fetus in order to allow the medical profession the legal protection it is entitled to in such cases.
      Conf. Comm. Rep. No. 3, in 1970 House Journal, at 1218, 1970 Senate Journal, at 984. The Conference Committee Report further stated:
      Your Committee feels real concern for those physicians who may be faced with the problem of destroying a fetus in the later stages of pregnancy due to medical indications, but this problem can be resolved by the fact that this kind of operation will probably not be legally considered an abortion.
      Id. Thus, it appears that the legislative intent in 1970 was to completely exclude late term abortions from the ambit of HRS § 453-16. We express no opinion as to whether the 2006 amendment affected the 1970 legislative intent. What is clear at minimum is that under Hawai'i law, a woman has a right to terminate a pregnancy when it is necessary to protect her life or health. This was also true in 1923, when the legislature passed the wrongful death statute. Section 4455 of the Revised Law of Hawai'i (1915), provided a justification defense to an abortion performed to save the life of the woman; this justification defense remained up until 1970, when abortion was decriminalized. It is also relevant that the abortion law from 1923 to 1970 did not actually criminalize the killing of a fetus, but rather, criminalized intentional acts leading to an abortion:
      Section 44162. Abortion; punishment. Whoever maliciously without lawful justification, administers, or causes or procures to be administered any poison or noxious thing to a woman when with child, in order to produce her miscarriage, or maliciously uses any instrument or other means with like intent, shall, if the woman be then quick with child, be punished by a fine not exceeding one thousand dollars and imprisonment at hard labor not more than five years; and if she be then not quick with child, shall be punished by a fine not exceeding five hundred dollars, and imprisonment at hard labor not more than two years.
      Revised Laws of Hawai'i (1915).
     
      
      This phrasing is used because it is possible that the woman bearing the child would not be a "mother" under the law, for example, a surrogate carrying a fetus whose parents have been determined to be other persons.
     
      
      For example, in deciding to construe "person" to include a viable fetus for purposes of that state's wrongful death statute, the Arkansas Supreme Court cited to an amendment to that state's constitution declaring that "[t]he policy of Arkansas is to protect the life of every unborn child from conception until birth." Aka v. Jefferson Hosp. Ass'n, Inc., 344 Ark. 627, 42 S.W.3d 508, 517-18 (2001). See Marks, 37 Akron L. Rev. at 53-74 for a listing of reasons given by various states in recognizing a wrongful death cause of action for stillborn fetuses, including non-viable fetuses.
     
      
      See National Conference of State Legislatures' "Fetal Homicide State Laws," http://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx. (Last visited March 7, 2018).
     
      
      See supra n.17.
     
      
      See supra n.17.
     
      
      The highest courts of these states have declined to recognize such a cause of action based on their interpretations of the legislative intents of their respective state legislatures. See Justus v. Atchison, 19 Cal. 3d 564, 565 P.2d 122, 139 Cal.Rptr. 97 (1977) ; Stern v. Miller, 348 So.2d 303 (Fla. 1977) ; McKillip v. Zimmerman, 191 N.W.2d 706 (Iowa 1971) ; Milton v. Cary Med. Ctr., 538 A.2d 252 (Me. 1988).
     
      
      Rodrigues v. State, 52 Haw. 283, 472 P.2d 509 (1970). In response to Rodrigues, the legislature passed HRS § 663-8.9 in 1986, which provides:
      Serious emotional distress arising from property damage; cause of action abolished; exception for physical injury. (a) No party shall be liable for the negligent infliction of serious emotional distress or disturbance if the distress or disturbance arises solely out of damage to property or material objects.
      (b) This section shall not apply if the serious emotional distress or disturbance results in physical injury to or mental illness of the person who experiences the emotional distress or disturbance.
     
      
      Campbell v. Animal Quarantine Station, 63 Haw. 557, 632 P.2d 1066 (1981).
     
      
      Masaki v. General Motors Corp., 71 Haw. 1, 780 P.2d 566 (1989).
     
      
      Roes v. FHP, Inc., 91 Hawai'i 470, 985 P.2d 661 (1999).
     