Suzuki v. Helicopter Consultants of Maui, Inc. et al

Filing 300

AMENDED ORDER DENYING PLAINTIFF'S MOTION IN LIMINE NO. 9 AS TO THE FEBRUARY 7, 2012 "NO FURTHER ACTION" LETTER, ECF NO. 172 re 262 , 289 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 10/26/2016. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

VERNON SUZUKI,

Civ. No. 13-00575 JMS-KJM

Plaintiff,

AMENDED ORDER DENYING
PLAINTIFF’S MOTION IN LIMINE
NO. 9 AS TO THE FEBRUARY 7,
2012 “NO FURTHER ACTION”
LETTER, ECF NO. 172

vs.
HELICOPTER CONSULTANTS OF
MAUI, INC., a Hawaii Corporation,
doing business as BLUE HAWAIIAN
HELICOPTERS; ET AL.,
Defendants.

AMENDED ORDER DENYING PLAINTIFF’S MOTION IN LIMINE NO. 9
AS TO THE FEBRUARY 7, 2012 “NO FURTHER ACTION” LETTER, ECF
NO. 172 1
I. INTRODUCTION
On November 20, 2011, a helicopter crashed on the Island of
Molokai, killing five people, and destroying the helicopter. Plaintiff Vernon
Suzuki (“Plaintiff”) brought this suit seeking damages and injunctive relief
alleging that Defendant Helicopter Consultants of Maui, Inc. (“Defendant”) failed

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This Order amends the court’s October 25, 2016 Order, ECF No. 289, by clarifying a
reference to the record of a January 16, 2012 letter report, discussed below.
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to remediate the crash site properly. ECF No. 1. Trial is set to begin on November
1, 2016.
In his Motion in Limine No. 9, Plaintiff seeks to “preclude evidence
or argument regarding Defendant’s receipt of a ‘no further action’ letter dated
February 7, 2012 from the State of Hawaii, Department of Health.” ECF No. 172.
The court heard the matter on October 18, 2016, after considering memoranda in
support and opposition, as well as substantial supplemental briefing. See ECF Nos.
172, 203, 227, 232, 248, 250.
Based on the following, the Motion is DENIED. The February 7,
2012 “no further action” letter (“the Letter”) is admissible under Federal Rules of
Evidence 803(8)(A)(iii) & (B), and thus the court will allow evidence or argument
regarding its receipt by Defendant. By this ruling, however, the court is not
precluding Plaintiff from challenging, if appropriate, the basis of the Letter or its
meaning and effect, if any, on the issues in this case.
II. BACKGROUND
The Letter, issued by the State of Hawaii, Department of Health’s
(“DOH”) Hazard Evaluation and Emergency Response Office (“HEER”), was
addressed to Hawaii International Environmental Services, Inc. (“HIES”) on behalf
of Defendant. ECF No. 203-2. The Letter begins with the conclusion that:

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[The HEER] has reviewed the Letter Report: Soil
Sampling Activities, Blue Hawaiian Helicopter Impact
location, Molokai, Hawaii, dated January 16, 2012.
Based on our review of the subject document, [the DOH]
has determined that No Further Action is required at this
site.
ECF No. 203-2, Def.’s Ex. A at PageID 3897. In substance, the Letter provides:
According to the [January 16, 2012] report, soil samples
collected at the site showed residual contamination
including polynuclear aromatic hydrocarbons (PAHs)
detected at maximum concentrations of 0.9 mg/kg (below
State Unrestricted Environmental Action Levels (EALs))
and total petroleum hydrocarbons (TPHs) detected at
maximum concentrations of 700 mg/kg (above State
Unrestricted EALs of 500 mg/kg for TPHs). The TPH
exceedence is not significant considering the small
amount of fuel released and the absence of grossly
impacted soil at the site. This information indicates that
the residual contaminants do not pose a significant
hazard risk to human health or the environment and,
therefore, the NFA determination criteria have been
satisfied.
Id. It cautions: “Please be aware that should new information concerning on-site
contamination become available, the HEER Office will reevaluate the site to
determine if a response action is appropriate.” Id. at PageID 3898.
By its terms, the Letter’s conclusions are based on a January 16, 2012
“letter report” from HIES directed to Mr. John Lacy (a former counsel for
Defendant) that begins:
This letter report documents activities related to the
collection of soil samples from the soils associated with
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the known impact location of a November 10, 2011, Blue
Hawaiian helicopter crash, located within TMK 5-6-006013-0000, on the island of Molokai, Hawai’i[.]
ECF No. 248-2, Def.’s Ex. A at PageID 4679. It explains:
The purpose of this project was to collect and evaluate
soil samples for the presence of Jet-A fuel which was
released at the Site as a result of a helicopter crash in
early November, 2011. Reportedly, there were
approximately 60 gallons of fuel on board the helicopter
at the time of impact. The impact produced a large fire at
the Site, which likely consumed a majority of the fuel.
Id. It follows with a description of “soil sampling activities,” and “soil sample
analytical results,” along with attached data from Environmental Services Network
Pacific Inc. (“ESN”) for the presence of certain “polynuclear aromatic
hydrocarbons.” Id. at PageID 4680-81, 4687. The letter report concludes:
At this time, we recommend requesting a No Further
Action [NFA] approval from the DOH based on the
conditions at the Site. It is feasible to remove the top few
inches of soil from the impact area if the DOH does not
concur with our recommendation for no further action.
Based on site conditions, removal of approximately five
cubic yards of soil would likely be sufficient to lower the
concentrations to well below the DOH action level, after
which additional soil sampling would be necessary to
confirm the remaining soils at the Site were below EALs
for diesel.
Id. at PageID 4682.2

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The record also contains a slightly different version of the January 16, 2012 “letter
report,” reading as follows:
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The record establishes that, in issuing the Letter, HEER officials
reviewed (1) the January 16, 2012 letter report (and attached data from ESN); (2) a
National Transportation Safety Board “preliminary aviation report,” ECF No. 2482 at PageID 4690; and (3) a document entitled “Site Assessment -- Island of
Molokai,” ECF No. 248-3, which provided information regarding (a) drinking
water wells near the crash site and (b) rare and endangered species, and population
estimates, within four miles of the site, id. at PageID 4694. See ECF No. 248-2 at
PageID 4673, Gabrielle F. Grange Aff. ¶¶ 4-5 (verifying that HEER received and
reviewed these documents).
This information was sufficient for HEER “to form an opinion on
whether the site at issue required further action.” Grange Aff. ¶ 7. The “sampling
and analysis of soil and simplified reporting provided to [HEER] in the documents
submitted were adequate to make a regulatory decision[.]” Id. ¶ 13. “The soil
evaluation for the November 10, 2011 crash was performed in accordance with

At this time, we recommend requesting a No Further Action [NFA]
approval from the DOH based on the conditions at the Site. The NFA
letter may be issued after the DOH reviews site specific assessment
activities and determines there is no threat to humans and/or the
environment based on the current concentrations of Jet-A resulting from
the November 2011 helicopter impact.
ECF No. 203-4, Def.’s Exh. C at PageID 3910. HEER, however, reviewed the version quoted
above at ECF No. 248-2, Def.’s Ex. A at PageID 4682. See ECF No. 248-2, Gabrielle F. Grange
Aff. ¶ 4.
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[DOH] regulatory guidelines.” ECF No. 227-3 at PageID 4353, William S.
Randall Aff. ¶ 2. And Defendant has established that the criteria for evaluating
whether the DOH should issue a “no further action” letter are set forth in Hawaii
Administrative Rules (“HAR”) § 11-451-10 (entitled “Criteria for No Further
Action”). HAR Chapter 11-451, Subchapter 3 (HAR §§ 11-451-8 to -16),
concerns “Hazardous Substance Response.” Those rules were promulgated to
implement Hawaii’s Environmental Response Law, Haw. Rev. Stat. Chapter 128D.
See HAR § 11-451-1(a) (“The objective of these rules is to establish the Hawaii
state contingency plan in order to implement, administer, and enforce chapter
128D, Hawaii Revised Statutes[.]”).
III. DISCUSSION
Given the preceding background facts, the Letter is relevant and
admissible under Federal Rules of Evidence 401 and 803(8).
Rule 803 provides in pertinent part:
The following are not excluded by the rule against
hearsay, regardless of whether the declarant is available
as a witness:
....
(8) Public Records. A record or statement of a public
office if:
(A) it sets out:
...
(iii) in a civil case . . . factual findings from a
legally authorized investigation; and
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(B) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Under this Rule, the court considers two elements for the present
Motion: (1) whether the Letter constitutes a “public record,” and (2) the Letter’s
“trustworthiness.”
A.

Public Record
The Letter is plainly a “record or statement of a public office” that

constitutes “factual findings from a legally authorized investigation” under Rule
803(8)(A)(iii). The DOH (and HEER specifically) is a public office or agency.
The DOH is agency of the State of Hawaii, and the purpose of HEER “is to protect
human health and the environment.” Grange Aff. ¶ 1. HEER “provides support
and partnership in preventing, planning for, responding to, and enforcing
environmental laws relating to releases or threats of releases of hazardous
substances.” Id. And the Letter includes “factual findings from a legally
authorized investigation” for purposes of Rule 803(8)(A)(iii). For example,
HEER’s conclusion that -- based on available information -- “the residual
contaminants do not pose a significant hazard risk to human health or the
environment and, therefore, the NFA determination criteria have been satisfied,”
ECF No. 203-2 at PageId 2897, is a factual finding of a government agency. See
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Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162 (1988) (holding that “factually
based conclusions or opinions are not on that account excluded from the scope of
[the former] Rule 803(8)(C)”). The Letter contains no legal conclusions that might
otherwise be excludable. See Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770,
777 (9th Cir. 2010) (holding that “[p]ure legal conclusions are not admissible as
factual findings” for purposes of Rule 803(8)(C), and excluding a Department of
Labor conclusion that the employer was a covered “employer”).
B.

Trustworthiness
Plaintiff has also not established that “the source of the information or

other circumstances indicate a lack of trustworthiness” under Rule 803(8)(B). See
Beech Aircraft, 488 U.S. at 167 (“[A] trial judge has the discretion, and indeed the
obligation, to exclude an entire report or portions thereof . . . that she determines to
be untrustworthy.”). That is, Plaintiff has not met his burden to demonstrate that
the Letter, or the circumstances under which it was obtained, are untrustworthy.
See Sullivan, 623 F.3d at 778 (“A party opposing the introduction of a public
record bears the burden of coming forward with enough negative factors to
persuade a court that a report should not be admitted.”) (quoting Johnson v. City of
Pleasanton, 982 F.2d 350, 352 (9th Cir. 1992)).
HEER has explained the precise basis for its conclusions, and such
data was available for Plaintiff to review. Although Plaintiff has raised questions
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about soil sampling done by HIES, see, e.g., ECF No. 172-6, the court is certainly
not convinced (as Plaintiff argues) that “the entire process, from the start, has all
the markings of a travesty of cronyism and special treatment” or a “virtual
hijacking of the DOH”s process.” ECF No. 172-1, Pl.’s Mem. at PageID 3213.
Nothing suggests that facts were misrepresented, or that HEER and HEIS were
violating published rules regarding improper contacts in the regulatory process.
Plaintiff argues that Defendant and HIES (1) did not fully include
him, as the purported land owner, in the process of obtaining the Letter; and
(2) failed to provide complete information to HEER such as:
the rare historical heiau situated near the crash site, the
flow of water from the crash site down onto those
archeological ruins, the flow of water across parcels, the
local community outrage, my neighbors’ drinking water
wells, my plans to sink a well for drinking water, the
gross contamination of the soil that HIES never
mentioned, certain other contaminants that should have
been tested for but were not, and other considerations
that I feel the DOH should have known and needed to
know before making its determination that nothing
needed to be done.
Doc. No. 250-1, Suzuki Decl. ¶ 9. But in this context, these types of arguments -such as whether HEER neglected to consider certain information, or focused too
narrowly on only “polynuclear aromatic hydrocarbons” in jet fuel, in issuing the
Letter -- are factors that might question the weight or scope of the Letter’s
conclusions, but do not undermine their essential reliability. That is, Plaintiff has
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not demonstrated a lack of trustworthiness when considering factors such as a lack
of timeliness, the investigator’s skills or experience, the lack of a required hearing,
or potential bias. See, e.g., Beech Aircraft, 488 U.S. at 167 n.11 (setting forth a
nonexclusive list of these four factors that are relevant in addressing
trustworthiness). And “it goes without saying that the admission of a report
containing ‘conclusions’ is subject to the ultimate safeguard -- the opponent’s right
to present evidence tending to contradict or diminish the weight of those
conclusions.” Id. at 168.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion in Limine No. 9 is
DENIED. To be clear, the court is not precluding Plaintiff from challenging the
Letter’s contents or conclusions, nor its meaning or effect, if any, on the issues in
this case. The court is simply denying Plaintiff’s request to preclude Defendant
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from “introducing, relying upon or mentioning [the Letter] in any way.” ECF No.
172-1 at PageID 3214.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 26, 2016.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Suzuki v. Helicopter Consultants of Maui, Inc., et al., Civ. No. 13-00575 JMS-KJM, Order
Denying Plaintiff’s Motion in Limine No. 9 as to the February 7, 2012 “No Further Action”
Letter, ECF No. 172

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