Closing arguments made in Red Hill lawsuit trial

2023 MAY 18 CTY RED HILL HSA PHOTO BY CINDY ELLEN RUSSELL CRUSSELL@STARADVERTISER.COM Families affected by the Red Hill water contamination crisis gathered for a news conference organized by COMMUNITYx and Sierra Club of Hawaii at the Pearl Harbor National Memorial on Thursday, May 17, 2023. The session was held to keep the public engaged about the lack of action and transparency from the U.S. Department of Defense and Navy about the closure and clean-up of jet fuel and Per- and Polyfluorinated Substances (PFAS) at the Red Hill Underground Fuel Storage Facility. The organizations also asked the community to show their support for the families affected by the Red Hill water crisis by donating at Pictured are Red Hill family members affected by the toxic spills and activists gathered at the news conference.

A lawsuit trial brought by families affected by the Red Hill water crisis against the federal government under the Federal Tort Claims Act saw both sides make their closing arguments Monday.

“We both agree that there was negligence and that the negligence caused harm,” said Kristina Baehr, an attorney for the families. “But the question is, What kind of harm, for how long and, of course, the legal issues?”


U.S. District Court Judge Leslie Kobayashi is hearing the case without a jury. Both sides are scheduled to submit post-trial briefs in June, after which the judge will deliberate before issuing a decision.

Attorneys representing the 17 plaintiffs are asking Kobayashi to award between $225,000 and $1.25 million to each person depending on the degree of suffering and injuries each endured.

Attorneys with the Department of Justice representing the federal government have called experts who have argued that while the crisis was stressful, that fuel did not move through the entire system — and that the fuel that did was not enough to cause significant illness.

“The November 2021 spill and resulting health advisories certainly disrupted and caused stress to the bellwether plaintiffs, and the United States is not disputing that,” said Eric Rey, a trial attorney representing the government. “The science simply doesn’t support the wide-ranging claims of health effects caused by the November 20 spill.”

Walter Grayman, a water systems expert testifying for the government, testified during the trial that because health complaints didn’t begin until several days after the Nov. 20 spill, that “suggests it didn’t enter the distribution system” until then and that the contamination reached its “plateau” on Nov. 27. He also argued fuel couldn’t have reached Ford Island — where plaintiff Patrick Feindt lived with his wife, Army Maj. Mandy Feindt, and their children — because it was served by the Waiawa water well.

In her closing arguments, Baehr suggested those findings were incomplete because Grayman’s modeling followed the movement of contamination only up until Dec. 5, 2021 — before residents on Ford Island and other areas farther west from Red Hill began reporting symptoms. She said that because the “analysis ended too early, he didn’t account for the real-time data. And the science — we agree that this is about science — that science must account for real-time data, and the observable data, which is right here before us.”

Paul Rosenfeld, an environmental specialist who testified for the plaintiffs, argued during the trial that the Navy’s Oahu waterline is “so interconnected there’s no way to avoid that from happening.” Rosenfeld said that even after the Red Hill well was shut off, water pumped from the other wells on the system continued to spread fuel throughout the waterline and that it “gummed up” the pipes.

But Rey argued that because the Feindts never actually smelled fuel in the water, they — and many others — couldn’t have been exposed.

“The doses for these … were all below levels that cause health effects,” he said. “(That they) couldn’t smell petroleum in their homes prior to stop drinking, it is significant and is informative as to their dose — and that’s because if (they) couldn’t smell the petroleum in the water, then it couldn’t have been at a high enough level to cause health effects.”

After the closing arguments, Kobayashi addressed the plaintiffs, telling them she acknowledged that the trial was emotional and at times difficult. She said, “I think that this trial exhibited the best that our litigation process can offer, talking about the rule of law as well as giving an opportunity for individuals to speak their piece in a format that acknowledges pain, acknowledges loss, and hopefully bring some comfort at the end of the day.”

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