Lake v. Ohana Military Communities, LLC

Filing 187

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT NO. 1 AND NO. 2 re: 145 , 150 - Signed by JUDGE LESLIE E. KOBAYASHI on 9/30/2019. (jo)

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII

KENNETH LAKE, CRYSTAL LAKE,
HAROLD BEAN, MELINDA BEAN, KYLE
PAHONA, ESTEL PAHONA, TIMOTHY
MOSELEY, ASHLEY MOSELEY, RYAN
WILSON, and HEATHER WILSON,

CIV. NO. 16-00555 LEK

Plaintiffs,
vs.
OHANA MILITARY COMMUNITIES, LLC,
FOREST CITY RESIDENTIAL
MANAGEMENT, INC., DOE
DEFENDANTS 1-10,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT NO. 1 AND NO. 2
On May 22, 2019, Defendants Ohana Military
Communities, LLC (“Ohana”) and Forest City Residential
Management, LLC (“Forest City” and collectively, “Defendants”)
filed their: Motion for Summary Judgment No. 1 based upon
Plaintiffs’ Inability to Prove a Required Element of their
Claims (“Motion 1”); and Motion for Summary Judgment No. 2 based
upon Plaintiffs Inability to Prove Damages (“Motion 2”).1

1

[Dkt.

Defendants also filed their Motion for Summary Judgment
No. 3 Addressing Specific Counts and Plaintiffs (“Motion
No. 3”). [Dkt. no. 147.] Motion No. 3 will be addressed
separately.

nos. 150, 152.]

On July 1, 2019, Plaintiffs Kenneth Lake,

Crystal Lake, Harold Bean, Melinda Bean, Kyle Pahona,
Timothy Moseley, Ashley Moseley, Ryan Wilson, and Heather Wilson
(“Plaintiffs”) filed their memorandum in opposition to Motion
No. 1 (“Opposition 1”) and their memorandum in opposition to
Motion No. 2 (“Opposition 2”).

[Dkt. nos. 168, 166.]

On

July 8, 2019, Defendants filed their reply in support of
Motion 1 and their reply in support of Motion 2.

[Dkt.

nos. 172, 173.]
Motion 1 and Motion 2 (“Motions”) came on for hearing
on July 19, 2019.

On August 8, 2019, an entering order was

issued informing the parties of the Court’s rulings on the
Motions.

[Dkt. no. 181.]

entering order.

The instant Order supersedes that

Defendants’ Motions are hereby granted in part

and denied in part for the reasons set forth below.

Defendants

Motions are granted insofar as summary judgment is granted as to
all claims except Plaintiffs Kenneth Lake, Crystal Lake,
Kyle Pahona, Ryan Wilson, and Heather Wilson’s claims asserting
that construction dust, in general and without regard to the
contents of the dust, constituted a nuisance.

2

BACKGROUND
Plaintiffs are former residents of housing at Kaneohe
Marine Corp Base Hawaii (“MCBH”).2

[First Amended Complaint,

filed 9/20/17 (dkt. no. 75), at ¶¶ 6-10; Answer to Pltfs.’ First
Amended Complaint [Doc. 75] (“Answer”), filed 6/29/18 (dkt.
no. 99), at ¶¶ 6-10 (admitting that they were former
residents).]

The crux of Plaintiffs’ claims is that the soil in

at least some of the residential neighborhoods at MCBH is
contaminated, and Defendants failed to perform adequate
remediation measures and failed to disclose the contamination to
Plaintiffs.

The claims that remain in this case are: breach of

contract against Ohana (“Count I”); breach of the implied
warranty of habitability against Ohana (“Count II”); a Haw. Rev.
Stat. Chapter 521 claim against Defendants (“Count III”);3 a
negligent failure to warn claim against Defendants (“Count V”);
2

At the time the First Amended Complaint was filed,
Kyle Pahona and Estel Pahona were still residing at MCBH.
[First Amended Complaint at ¶ 8.] Estel Pahona’s claims have
been dismissed. [Stipulation for Partial Dismissal: Dismissal
with Prejudice of All of Pltf. Estel Pahona’s Claims in the
First Amended Complaint [75] and Order, filed 4/24/19 (dkt.
no. 139).] It is not clear whether Kyle Pahona still resides at
MCBH.
3

The portion of Count III based on Haw. Rev. Stat. § 52142(a)(1) has been dismissed with prejudice. Order Granting in
Part and Denying in Part Defs.’ Motion to Dismiss and/or Strike
Pltfs.’ First Amended Complaint [Dkt 75], filed 5/31/18 (dkt.
no. 98) (“5/31/18 Order”), at 17, available at 2018 WL 2449188.

3

a negligent infliction of emotional distress (“NIED”) claim and
an intentional infliction of emotional distress (“IIED”) claim
against Defendants (“Count VI”); a fraud claim against
Defendants (“Count VII”); a negligent misrepresentation claim
against Defendants (“Count VIII”); and a nuisance claim against
Defendants (“Count XI”).4
I.

Relevant Facts
A.

OCPs in General
The parties agree that organochlorinated pesticides

(“OCPs”) were commonly used in Hawai`i.

[Concise statement of

facts in supp. of Motion 1 (“Motion 1 CSOF”), filed 5/22/19
(dkt. no. 151) at ¶ 1; concise statement of facts in supp. of
Opp. 1 (“Opp. 1 CSOF”), filed 7/1/19 (dkt. no. 169), at ¶ 1
(admitting that portion of Defs.’ ¶ 1).]

OCPs

were used for termite control in and around
wooden buildings and homes from the mid-1940s to
the late 1980s. [OCPs] included chlordane,
aldrin, dieldrin, heptachlor, and
dichlorodiphenyltrichloroethane (DDT). They were
used primarily by pest control operations in
Hawaii’s urban areas, but also by homeowners, the
military, the state, and counties to protect
buildings against termite damage. In the 1970s
and 1980s the U.S. Environmental Protection
Agency (EPA) banned all uses of these [OCPs]
4

Harold Bean and Melinda Bean’s (“the Beans”) and
Timothy Moseley and Ashley Moseley’s (“the Moseleys) nuisance
claims have been dismissed with prejudice. 5/31/18 Order, 2018
WL 2449188, at *10.

4

except for heptachlor, which can be used today
only for control of fire ants in underground
power transformers. Chlordane was the most
widely used [OCP] against termites in Hawai`i.
Termiticides were commonly applied directly to
soil beneath buildings or beneath slab
foundations and around the foundation perimeter
for new construction. . . . These pesticides
break down slowly in the environment, application
rates were relatively high, and applications may
have been repeated over time. As a result, these
[OCPs] may sometimes still be found in treated
soils at concentrations detrimental to human
health.
[Motion 1 CSOF, Decl. of Randall C. Whattoff (“Whattoff
Decl. 1”), Exh. 43 (“Past Use of Chlordane, Dieldrin, and other
Organochlorine Pesticides for Termite Control in Hawai`i: Safe
Management Practices Around Treated Foundations or During
Building Demolition,” by the Hawai`i Department of Health
(“HDOH”), Hazard Evaluation and Emergency Response Office
(“HEER”), dated September 2011) at 1.]
The United States Department of Health and Human
Services (“USDOH”), Public Health Service, Agency for Toxic
Substances and Disease Registry, has stated that “[e]veryone in
the United States has been exposed to low levels of chlordane”
and “the ban on chlordane did not eliminate it from your
environment, and some of your opportunities for exposure to
chlordane continue.”

[Whattoff Decl. 1, Exh. 42 (excerpts of

Toxicological Profile for Chlordane, dated May 1994) at 3.]
Today, people receive the highest exposure
to chlordane from living in homes that were
5

treated with chlordane for termites. Chlordane
may be found in the air in these homes for many
years after treatment. Houses in the deep south
and southwest were most commonly treated.
However, chlordane use extended from the lower
New England States south and west to California.
Houses built since 1988 have not been treated
with chlordane for termite control. . . .
Over 50 million persons have lived in
chlordane-treated homes. . . .
[Id. at 3-4 (emphasis added).]

In Hawai`i,

[Chlordane and dieldrin] were both heavily used
in Honolulu, before being banned, for ground
treatment of termites and were sold to the public
through home and harden [sic] outlets up until
approximately 1984. Based on research of records
at the State Department of Agriculture, hundreds
of thousands of gallons of these chemicals were
applied for termite control in addition to that
imported for agricultural purposes. Personal
communication with exterminator for domestic
termite control, indicate copious quantities were
applied (e.g., saturating the soil) as the
standard practice. It is, therefore,
hypothesized that the source of chlordane and
dieldrin in the [Sand Island Wastewater Treatment
Plant (“SIWWTP)”] wastewater (influent and
effluent) is from chemicals applied from 1950 to
1988 leaching from the soil and entering the
sewer system as a component of infiltration and
inflow (I/I). Since these were essentially the
only chemicals in use for ground control of
termites during much of this period, all areas of
the City were probably affected. Due to the
methods of construction and to application
trends, residential areas were more heavily
treated than commercial or industrial
areas. . . . Also, during this period, homes
(their yards) were required to be treated for
termites before they could receive federal loan
guarantees. This practice led to almost
universal contamination of residential areas by
these pesticides.

6

[Whattoff Decl. 1, Exh. 39 (App’x D to the City and County of
Honolulu’s Application for Variance Related to Sand Island
Wastewater Treatment Plant) at D-1 to D-2.]
HDOH uses a two-tiered system to analyze the presence
of OCPs at a site.

[Motion 1 CSOF at ¶ 2; Opp. 1 CSOF at ¶ 2

(admitting that portion of Defs.’ ¶ 2).]
Environmental Action Levels (EALs) [are used] to
quickly screen soil, soil gas and groundwater
data for potential environmental hazards. As
reviewed below, individual action levels were
developed to address each of the environmental
hazards described in Section 1.2 for each
contaminant listed in the lookup tables . . . .
The lowest action level represents the
concentration of the contaminant in the
respective media where the threat to human health
or the environment is considered to be
insignificant under any site condition. This is
selected as that contaminants Tier 1 EAL. . . .
The presence or absence of potential
environmental hazards at a contaminated site is
determined by the direct comparison of soil,
groundwater and/or soil gas data to Tier 1 EALs
for targeted contaminants of concern. Exceeding
the Tier 1 EAL for a specific chemical does not
necessarily indicate that the contamination poses
a significant threat to human health or the
environment, only that additional evaluation is
warranted. The level of detail required for the
additional evaluation will vary. In some cases
it may be more cost-beneficial to simply
remediate the site to the Tier 1 EALs than to
conduct an advanced evaluation. A more detailed
evaluation of specific environmental hazards is
generally warranted in cases where significant
cleanup costs may be incurred, where public
sensitivity of the site is high or where longterm, in-situ management of the contamination is
being considered.

7

[Whattoff Decl. 1, Exh. 44 (Evaluation of Envtl. Hazards at
Sites with Contaminated Soil & Groundwater, Vol. 1: User’s
Guide, Hawai`i Ed., by HDOH Envtl. Mgmt. Div., dated Fall 2011,
revised January 2012) at pg. 2-1 (emphasis added).]

Where a

more detailed evaluation is necessary, the specific site should
be discussed with HDOH.

[Id. at pg. 1-10.]

A site-specific

evaluation is done, and Tier 2 EALs are created.

[Id. at

pgs. 3-1 to 3-12.]
B.

MCBH Housing
MCBH includes housing for more than 2,000 families of

Marines.

MCBH currently has thirteen residential neighborhoods.

[Motion 1 CSOF, Decl. of Dennis Poma (“Poma Decl.”) at ¶¶ 1011.5] They are:
Neighborhood
Hana Like
Hawaii Loa
Heleloa
Kaluapuni
Kapoho

No. of Units
276
237
not provided
32
10

Mokapu Court
Mololani
Nani Ulupau

14
765
40

5

Year of Construction
1992
1999
1940 (renovated 2009)
1963 (redeveloped 2006)
1957 and 1976
(redeveloped 2007 and 2008)
1957 (redeveloped 2007)
1960 (redeveloped 2008-12)
1992 (redevelopment

Dennis Poma is the chief executive officer of Advanced
Compliance Solutions, Inc. (“ACSI”). He is a consultant and
civil engineer who focuses on environmental issues. [Poma Decl.
at ¶¶ 1-2.] He was involved with residential housing projects
at MCBH from September 2009 to 2018. [Id. at ¶¶ 6-9.] His
company was “responsible for environmental management for all
Ohana projects related to the Navy and Marine Corps.” [Id. at
¶ 7.]

8

Pa Honua I
Pa Honua II
Pa Honua III
Ulupau
Waikulu

[Id. at ¶¶ 11.a-m.]

scheduled in 2019)
54
1965 (redeveloped 1999)
184
1966 (redeveloped 2002)
212
1966 (redeveloped 2005)
218
1976 (redeveloped 2011-14)
not provided
1941-1976 (redeveloped
before Poma worked on MCBH)
Pa Honua II was demolished and rebuilt as

part of the military construction (“MILCON”) program.
¶ 20.]

[Id. at

Hana Like, Hawaii Loa, Kaluapuni, Mokapu Court,

Nani Ulupau, and Pa Honua I were also part of the MILCON
program.

[Motion 1 CSOF, Decl. of Chris Waldron (“Waldron

Decl.”) at ¶ 12(a).6]

The other neighborhoods were redeveloped

by Ohana through a Public-Private Venture (“PPV”).

[Waldron

Decl., Exh. 30 (Marine Corps Base Hawaii: MILCON Housing
Projects Pesticide Soil Management Fact Sheet, dated May 2014)
at 1.]
Ohana leases real property at MCBH, and Forest City
manages the property on Ohana’s behalf.

[First Amended

Complaint at ¶ 13; Answer at ¶ 13 (admitting those portions of
Pltfs.’ ¶ 13).]

6

Chris Waldron is the principal of Pioneer Technologies
Corporation. He is a consulting scientist who focuses on
environmental issues. [Waldron Decl. at ¶¶ 1-2.] Mr. Waldron
became involved with the MCBH housing projects in October 2005
and worked on drafts of the Pesticide Soils Management Plan
(“PSMP”) for Ohana. Mr. Waldron also conducted an extensive
review of the relevant records that preceded his work with the
MCBH housing projects. [Id. at ¶¶ 6-8.]

9

Plaintiffs lived in the following MCBH neighborhoods:
Plaintiffs
Lakes
Beans
Kyle Pahona
Moseleys

Wilsons

Neighborhood
Mololani
Pa Honua II
Hawaii Loa
Ulupau
Mololani
Waikulu
Pa Honua II
Hawaii Loa

Period
6/4/12-12/23/15
8/24/08-1/27/10
after 1/27/10
11/13/13-11/30/16
before 9/1/09
9/1/09-3/1/12
March 2012
not stated

[Poma Decl. at ¶¶ 16, 20, 22, 23, 26, 27, 30, 32.]

According to

the First Amended Complaint: Harold Bean and Melinda Bean (“the
Beans”) lived in the Hawaii Loa neighborhood from January 2010
to January 2012; [First Amended Complaint at ¶ 7;] Timothy
Moseley and Ashley Moseley (“the Moseleys”) lived in the
Mololani neighborhood from July 2008 to June 2009; [id. at
¶ 9.a;] the Moseleys lived in the Pa Honua II neighborhood from
March 2012 to November 2012; [id. at ¶ 9.c;] and Ryan Wilson and
Heather Wilson (“the Wilsons”) lived in the Hawaii Loa
neighborhood from 2006 to 2015, [id. at ¶ 10].

Defendants

admitted these allegations from Plaintiffs’ paragraphs 7, 9.a,
and 10, [Answer at ¶¶ 7, 9, 10,] but denied the allegation from
Plaintiffs’ paragraph 9.c because Defendants were “without
knowledge or information sufficient to form a belief as to [its]
truth,” [Answer at ¶ 9].
Forest City’s Community Handbook – Marine Corps
Neighborhoods (“Community Handbook”) states:

10

Chlordane was one of the most common pesticides
applied to the soil around homes and businesses
throughout the United States for protection
against termites from 1948 to 1988. Other
pesticides used in and around housing to prevent
insect infestation and disease outbreak have also
been banned. Although chlordane and other
pesticides are no longer used, they may be found
in soils under and around housing constructed in
both civilian and military communities. Families
can safely work and play in their yards; however,
we recommend residents use prudent practices by
thoroughly washing their hands after direct soil
contact and washing all plants and vegetables
grown on-site before consuming.
[Opp. 1 CSOF, Decl. of Kyle Smith (“Smith Decl. 1”), Exh. 8
(Community Handbook) at 12.]

The Community Handbook is

incorporated as part of Plaintiffs’ MCBH leases.

[Concise

statement of facts in supp. of Motion 2 (“Motion 2 CSOF”), filed
5/22/19 (dkt. no. 146), Decl. of Randall C. Whattoff (“Whattoff
Decl. 2”), Exh. T (Kyle Pahona’s Lease Agreement for 11/13/13 to
5/31/14 (“Pahona Lease”)) at OHANA-FCRM 016512.7]
C.

OCPs at MCBH
1.

In General

An Environmental Baseline Survey for Public Private
Venture, dated August 2006, by Environmental Science
International for the Department of the Navy, Commander, Pacific

7

Defendants describe Kyle Pahona’s lease as “an exemplar of
all Plaintiffs’ lease agreements.” [Whattoff Decl. 2 at ¶ 23.]

11

Division, Naval Facilities Engineering Command (“EBS”),8 stated:
“Pesticides/Herbicides may be present in the soil in all
neighborhoods.

These were legal applications and do not require

remediation (Category 1); however, future construction that may
disturb such soils may require environmental, as well as safety
and health, controls.”

[Smith Decl. 1, Exh. 1 (excerpts of EBS)

at ES-2.]
Ohana established Tier 2 EALs for MCBH.

[Motion 1

CSOF at ¶ 4; Opp. 1 CSOF at ¶ 4 (admitting that portion of
Defs.’ ¶ 4); Poma Decl., Exh. 23 (Final Pesticide Soils
Management Plan, Ohana Military Cmtys., LLC Public-Private
Venture Housing-Hawaii, prepared by Parsons, dated Feb. 2007
(“2007 PSMP”)) at 7-20.]

The HDOH, HEER Office issued a

concurrence letter for the 2007 PSMP.

[Poma Decl., Exh. 27

(letter dated 3/23/07, to Michael B. Phelps, P.E., Senior
Project Manager, PARSONS, from John Peard, Project Manager, HDOH
(“Concurrence Letter”)).]
Mr. Poma testified that the PSMP applies to all MCBH
neighborhoods.

[Smith Decl. 1, Exh. 2 (excerpts of trans. of

1/7/19 depo. of Dennis S. Poma, P.E. (“Poma Depo.”)) at 144.]
The 2007 PSMP states:
8

The EBS was ordered “to facilitate the housing publicprivate venture (PPV) between the [Navy] and ‘best qualified’
developer.” [Smith Decl. 1, Exh. 1 (EBS) at ES-1.]

12

Tier 1 EALs are designed to be protective of
human health (i.e., direct-exposure) and other
potential environmental concerns (e.g., future
soil-to-groundwater impacts and urban ecological
impacts). Human health Tier 1 soil EALs for
pesticides were derived based on the following
common assumptions (refer to HDOH [2005] for
details on all other input assumptions):
1) unrestricted (i.e., residential) land use;
2) exposure to COPCs in soil via incidental
ingestion, dermal contact, and inhalation of
volatiles/particulates; 3) a target cancer risk
and noncancer hazard of one-in-one million (i.e.,
1E-06) and one, respectively; and 4) exposure for
350 days/yr for 30 years as a child/adult.
Site-specific Tier 2 EALs for the target
pesticides were derived from HDOH (2005) human
health direct exposure Tier 1 values based on an
alternative target cancer risk level of 1E-05
[(i.e., one-in-one-hundred-thousand)] and the
potential for cumulative cancer effects from
exposure to multiple pesticides. All other
Tier 2 residential EAL human health (i.e., direct
exposure) exposure assumptions were the same as
those used by HDOH for Tier 1 EALs. . . .
[Poma Decl., Exh. 23 (2007 PSMP) at 10 (some brackets in
original).]

The 2007 PSMP also states:

All housing communities undergoing demolition and
construction must either be previously assessed
for pesticide-impacted soils . . . or, in the
absence of any previous testing, conservatively
assumed to contain pesticide-impacted soils
beneath all existing foundations and within
3 feet of the foundation. For the purposes of
this Pesticide Soils Management Plan, “pesticideimpacted soils” are defined as soils with
pesticide concentrations above the Tier 2
EALs . . . .
[Id. at 21.]

13

The PSMP was updated in February 2008 (“2008 PSMP”)
and July 2013 (“2013 PSMP”).
Exh. 25 (2013 PSMP).]

[Poma Decl., Exh. 24 (2008 PSMP),

The 2007 PSMP and other documents show

that there were no Tier 2 exceedances in any common areas of the
MCBH neighborhoods.

Poma Decl., Exh. 23 (2007 PSMP) at 17

(Table 4);9 see also Poma Decl. at ¶¶ 47-49 (citing Poma Decl.,
Exh. 7 (Phase 2 Envtl. Site Assessment, Mololani Marine Corps
Base Hawaii Family Housing Area, by Parsons, dated 10/1/07
(“Mololani Phase II ESA”)) at 13; Exh. 10 (Phase 2 Envtl. Site
Assessment, Ulupau Central/South Marine Corps Base Hawaii Family
Housing Area, by Parsons, dated 10/1/07 (“Ulupau Phase II ESA”))
at 3; Exh. 13 (Phase II Envtl. Site Assessment, Manning Court
(Waikulu) Marine Corps Base Hawaii Family Housing Area, by
Parsons, dated April 2007 (“Manning Court Phase II ESA”)) at 14;
Exh. 14 (Phase II Envtl. Site Assessment, Rainbow (Waikulu)
Marine Corps Base Hawaii Family Housing Area, by Parsons, dated
February 2007 (“Rainbow Phase II ESA”)) at 16; Exh. 15 (Final
Phase II Envtl. Site Assessment, NCO Row (Waikulu) Marine Family
Housing Area, by Parsons, dated September 2006 (“NCO Row
Phase II ESA”)) at 12)).

9

Only four of the neighborhoods analyzed in the 2007 PSMP
(Kapoho, Waikulu – Manning, Waikulu – NCO Row, and Waikulu –
Rainbow) are at issue in this action. See Poma Decl., Exh. 23
(2007 PSMP) at 3, 16-17.

14

After the MCBH Tier 2 EALs were established in 2007,
HDOH revised its Tier 1 EALs.

[Poma Decl. at ¶ 11.g.]

Thus,

while 2007 testing reflected that some of the Mololani homes had
OCPs above Tier 2 EALs, all of the results that constituted
Tier 2 exceedances in 2007 “are at or below the current Tier 1
Environmental Action Levels.”

[Id. at ¶ 11.g & n.8 (citing Poma

Decl., Exh. 7 (Mololani Phase II ESA) at Figure 4 (OHANAFCRM008212); HDOH, Evaluation of Environmental Hazards at Sites
with Contaminated Soil and Groundwater Volume 2: Background
Documentation for the Development of Tier 1 Environmental Action
Levels at Table B-1 (Fall 2017) available at http://ehaweb.doh.hawaii.gov/ehacma/documents/dd50f3bf-a630-4705-8eddf13bb204e559).10]
HDOH did not review the 2013 PSMP because of on-going
litigation, i.e., Barber v. Ohana Military Communities, LLC,
CV 14–00217 HG–KSC.

[Poma Decl. at ¶ 68.]

“Therefore, the

modified Tier 2 EALs in the 2013 PSMP have never been used by
[Defendants] to make soil decisions at MCBH.”

10

[Id.]

HDOH’s Evaluation of Environmental Hazards at Sites with
Contaminated Soil and Groundwater Volume 2: Background
Documentation for the Development of Tier 1 Environmental Action
Levels (Fall 2017) will be referred to as the “2017 HDOH Tier 1
Documentation.”

15

2.

Previously Undeveloped Neighborhoods

The homes in the Hana Like, Hawaii Loa, and Nani
Ulupau neighborhoods were built on undeveloped land, after the
use of OCPs was prohibited.
Decl. at ¶¶ 13.a, b, g.]

[Id. at ¶¶ 11.a, b, h; Waldron

Thus, Defendants argue the soil in

those neighborhoods was never treated with OCPs.
at ¶ 8.]

[Motion 1 CSOF

Mr. Poma states:
In 2015, Environet conducted a Phase II
Environmental Site Assessment, which did not
identify any OCPs over Tier 1 EALs. Ohana
thereafter decided to have my company (ACSI)
perform additional sampling with more
representative decision units across the
neighborhood to confirm that the Hana Like soils
were not impacted by organo-chlorinated
pesticides. This sampling and testing is
summarized in a report entitled “Site
Investigation Summary Report, Marine Corps Base
Hawai`i (MCBH), Waikulu Lot B and Hana Like,”
[(“Waikulu/Hana Like Site Report”)] . . . . I
participated in the creation of this report and I
oversaw the testing that it summarizes. In Hana
Like, no organo-chlorinated pesticides were
detected above laboratory reporting limits in any
of the samples.

Poma Decl. at ¶ 11.a (footnotes omitted); see also Waldron Decl.
at ¶ 16 (stating “the Phase II site investigation confirmed that
[OCPs] were not detected above laboratory reporting limits”).
3.

Redeveloped Neighborhoods

In the Kaluapuni neighborhood, soil tests conducted
before the original homes were demolished in 2006 showed that
some samples were above the current Tier 1 EAL, and some samples

16

were below it.

[Waldron Decl. at ¶¶ 13.c (citing Waldron Decl.,

Exh. 32 (2003 test results for chlordane), Exh. 33 (2005 test
results for chlordane)).]

Post-demolition testing later in 2005

revealed significantly lower levels, “confirm[ing] that the
natural mixing of soils that occurred during standard demolition
activities significantly reduced the Chlordane concentrations.”
[Id. (citing Waldron Decl., Exh. 34 (May 2005 testing results),
Exh. 35 (August 2005 testing results)).]

The Navy/Marine Corps

therefore “concluded that the residual concentrations of
pesticides were acceptable and did not require further
cleanup/remediation prior to construction of the new housing
units,” and Mr. Waldron opines that this conclusion was correct.
[Id. at ¶ 13.d.]
In the Mokapu Court neighborhood, in August 2005, the
soil at one of the nine original housing buildings was tested
for chlordane prior to redevelopment, and chlordane was not
detected.

[Id. at ¶ 13.e (citing Waldron Decl., Exh. 35 (August

2005 testing results)).]

The Navy/Marine Corps therefore

“concluded that residual concentrations of pesticides in soil at
Mokapu Court were acceptable (to the extent any in fact existed)
and did not require cleanup/remediation prior to construction of
the new housing units,” and Mr. Waldron opinions that this
conclusion was correct.

[Id. at ¶ 13.f.]

Mr. Waldron makes

similar statements about the Pa Honua I neighborhood.
17

[Id. at

¶¶ 13.h-i (stating no chlordane found in five composite samples
tested in April 1995 (citing Waldron Decl., Exh. 36 (test
results))).]
In the Pa Honua II neighborhood, in January 2000, the
soil was tested in areas that had been identified as potentially
containing chlordane.

Of the twelve samples taken, “only two

slightly exceeded the 2002 EPA preliminary remediation goal
(‘PRG’) of 1.6 parts per million (ppm) (1.9 and 2.0 ppm),” and
“[a]ll of these samples are significantly below the current
Tier 1 EALs.”

[Id. at ¶ 13.j (citing Waldron Decl., Exh. 37

(testing results))).]

In light of the results, and the fact

that the chlordane concentrations would be reduced through the
mixing of soil during construction, the Navy/Marine Corps
concluded remediation was not necessary prior to construction,
and Mr. Waldron opines that conclusion was correct.

[Id. at

¶ 13.k.]
In the Pa Honua III neighborhood, in 2005, soil
testing confirmed that chlordane was present in amounts
exceeding the 2002 EPA PRG.

The Navy hired Mr. Waldron to

conduct a risk assessment for chlordane and other OCPs.

Soil

samples were collected from areas that were expected to have the
highest concentrations of chlordane, as well as from other
areas.

[Id. at ¶¶ 13.l-m.]

18

Chlordane, Heptachlor and Heptachlor Epoxide were
found in the soils. Potential health risks from
exposure to these pesticides were estimated for
residents, construction workers, maintenance
workers, and utility workers. The majority of
the health risks were well within the EPA’s
acceptable risk range, but there were a few risks
that fell in the acceptable range that
nevertheless required further evaluation. After
reviewing the planned use of the site and all of
the results, certain soil was removed and placed
under a concrete basketball court so it could not
be disturbed, and thus eliminated risks to Pa
Honua III’s residents, their guests, and workers.
Before these measures were implemented, the Navy
provided a site visit, briefings, and documents
to the Hawaii Department of Health. . . .
[Id. at ¶ 13.n.]

Post-construction soil testing was conducted

in 2007 on samples from each of the 106 buildings in the
neighborhood.

The samples were grouped into ten decision units,

and no pesticides were found in excess of the Tier 2 EALs in any
of the decision units.

[Id. at ¶ 13.o (citing Waldron Decl.,

Exh. 26 (Phase 2 Envtl. Site Assessment, Pa Honua 3 Marine Corps
Base Hawaii Family Housing Area, by Parsons, dated 10/1/07 (“Pa
Honua III Phase II ESA”)).]

Mr. Poma also states the Pa

Honua III Phase II ESA shows that “no pesticide compounds
exceeded their respective Tier 2 EALs in any of the decision
units.

For Aldrin, Dieldrin, and Chlordane, that would mean the

detected concentrations are below today’s Tier 1 EAL levels.”
[Poma Decl. at ¶ 11.k.]
In the Kapoho neighborhood, a Phase I ESA and a
Phase II ESA were conducted, and Mr. Poma reviewed these and
19

other materials in the course of his work with Ohana.
¶ 11.e.]

[Id. at

“[A]ll pesticide compounds were below their respective

Tier 1 and Tier 2 environmental action levels (‘EALs’) in all
samples.”

[Id. (footnotes omitted).]
A Phase II ESA was also conducted for the Mololani

neighborhood before the prior residences were demolished.
at ¶ 11.g; Poma Decl., Exh. 7 (Mololani Phase II ESA).]

[Id.

Some

homes in Mololani “tested positive for [OCPs, in particular
aldrin, dieldrin, and chlordane,] above Tier 2 EALs, but many
had no Tier exceedances.”

[Poma Decl. at ¶ 11.g & n.8.]

However, all of those results were at levels which are now at or
below the current Tier 1 EALs.

[Id. at ¶ 11.g.]

[A]s part of the redevelopment process for
Mololani, the soil beneath and within two feet of
the slabs of every pre-existing home was
excavated to a depth of two feet below ground
surface and was replaced with clean fill (or, in
a few cases, left in place and covered with at
least two feet of clean fill). The excavated
soil was then buried on-site in carefully tracked
pits and was covered with at least two feet of
clean soil. . . . The soil removal and
replacement process was carefully tracked in a
soil closure report[.]
[Id.]
For the Ulupau neighborhood, a Phase II ESA was also
conducted prior to demolition of the existing residences.
at ¶ 11.l; Poma Decl., Exh. 10 (Ulupau Phase II ESA).]

[Id.

Another

Phase II ESA was conducted by Integral Consulting in November

20

2011.

[Poma Decl. at ¶ 11.l.]

“[T]he majority of the homes and

carports tested positive for [OCPs] above Tier 2 EALs (usually
aldrin or dieldrin), but one had no Tier 2 exceedances.”

[Id.]

Mr. Poma points out that “many” of these results would now be
under the current Tier 1 EALs.

[Id.]

[A]s part of the redevelopment process for
Ulupau, the soil beneath and within two feet of
the slabs of every pre-existing home and carport
was excavated to a depth of four feet below
ground surface, and clean fill was used to
replace the soil removed from beneath and around
the slabs. In some instances, soil was left in
place and covered with a minimum of two feet of
clean soil. The excavated soil was then buried
on-site in carefully tracked pits, and was
covered with at least two feet of clean
soil. . . . The soil removal and replacement
process was carefully tracked in a soil closure
report[.]
[Id. (emphasis in original).]
For the Waikulu neighborhood, before demolition, a
Phase II ESA was conducted in each of the three prior
neighborhoods that comprise what is now Waikulu.

[Id. at

¶ 11.m; Poma Decl., Exh. 13 (Manning Court Phase II ESA),
Exh. 14 (Rainbow Phase II ESA), Exh. 15 (NCO Row Phase II ESA).]
Manning Court had no results above the Tier 1 EALs.
at ¶ 11.m.]

[Poma Decl.

“In Rainbow Court and NCO Row, some of the homes

tested positive for [OCPs] above Tier 2 environmental action
levels, but some homes had no Tier 2 exceedances.”

21

[Id.]

Mr. Poma Mr. Poma points out that “many” of these results would
now be under the current Tier 1 EALs.

[Id.]

[A]s part of the redevelopment process for
Waikulu, the soil beneath and within two feet of
the slabs of every pre-existing home in Rainbow
Court and NCO Row was excavated to a depth of two
feet below ground surface. Clean fill was used
to replace the soil removed from beneath and
around the slabs. The excavated soil was then
buried on-site in carefully tracked pits, and was
covered with at least two feet of clean soil.
The soil removal and replacement process was
carefully tracked in a soil closure report[.]
[Id. (emphasis in original).]
The Heleloa neighborhood “is the only remaining
historic family housing neighborhood on MCBH.”

[Id. at ¶ 11.c.]

When it was renovated in 2009, “a very careful historic
preservation process was used.”

[Id.]

Mr. Poma opines

generally that:
The results of th[e OCP] testing were consistent
with the conceptual site model of historic use of
organo-chlorinated pesticides to control
termites, using procedures consisting of applying
the termiticides to the ground surface prior to
slab construction and then subsequently around
the immediate edge of the foundation. To the
extent that residual pesticides were found, the
maximum pesticide concentrations were found under
the existing concrete foundations with
concentrations decreasing rapidly with distance
from the slabs.
[Id. at ¶ 46.]

22

4.

Testing During this Litigation

In 2017, ACSI conducted a soil analysis project at
MCBH.

Before the testing, ACSI prepared a Sampling and Analysis

Plan (“SAP”), which was approved by HDOH.

[Poma Decl. at ¶¶ 12-

13; Whattoff Decl. 1, Exh. 46 (4/13/17 letter to Gregory Rapp,
Ohana’s Regional Vice President, from Eric Sadoyama, Remedial
Project Manager, HDOH, HEER Office).]

Mr. Poma states:

For all soil samples collected under the scope of
this project, organo-chlorinated pesticides were
either not detected at laboratory method
detection limits or were reported at
concentrations below applicable EALs. Where
detected, all concentrations of organochlorinated pesticides were below Hawai`i
Department of Health’s Tier I EALs. These
findings confirm that Ohana and U.S. Government
soil management practices successfully eliminated
risks to human health and the environment from
organo-chlorinated pesticides in soils in the
neighborhoods studied.
[Poma Decl. at ¶ 14.]

Mr. Poma oversaw and participated in the

drafting of ASCI’s Confirmation Soil Sampling Summary Report,
dated December 2018 (“Confirmation Report”).
Exh. 18 (Confirmation Report).]

[Id. at ¶ 15 &

The neighborhoods studied in

this project were Kaluapuni, Mokapu Court, Mololani, Pa Honua I,
Pa Honua II, Ulupau, and Waikulu.11

[Poma Decl., Exh. 18

(Confirmation Report) at pg. 1-1.]

11

The Hana Like, Hawaii Loa, and Nani Ulupau neighborhoods,
referred to in the Confirmation Report as “Category 3,” were not
tested because the homes there were built after the OCPs at
(. . . continued)
23

Mr. Waldron has reviewed the Confirmation Report.
[Waldron Decl. at ¶ 14.]

He states: “All of the samples from

the 2017 testing were below Hawaii Department of Health Tier I
EALs.

These findings confirm that [Ohana] and U.S. Government

soil management practices successfully eliminated risks to human
health and the environment from [OCPs] in the neighborhoods
tested.”

[Id. at ¶ 15.]
Thus, Defendants argue that, since the demolition of

the prior Kaluapuni homes, there has been no evidence of OCPs
exceeding Tier 1 EALs.

[Motion 1 CSOF at ¶ 11.]

They also

argue that, for the Mokapu Court neighborhood, there has never
been evidence of OCPs and, for the Pa Honua I and Pa Honua II
neighborhoods, there has never been evidence of OCPs exceeding
Tier 1 EALs.

[Id. at ¶¶ 12-14.]

Plaintiffs argue the 2017 testing, which Defendants
contend shows no contamination, actually shows Ohana put
issue were no longer available and, “[t]herefore, there is no
basis to expect the potential of OCP termiticides in these
neighborhoods or areas.” [Poma Decl., Exh. 18 (Confirmation
Report) at pg. 1-1.] The Heleloa, Kapoho, and Pa Honua III
neighborhoods, referred to in the Confirmation Report as
“Category 4,” were not tested because, “[s]ince housing in the
Heleloa neighborhood was built during the period when OCP
termiticides were available for use, OCPs are assumed to be
present in soil beneath these homes due to past termiticide
application and are being managed in-place with institutional
controls,” and “[a]t Kapoho and Pa Honua 3, surface soils have
already been checked and been determined not to contain OCPs at
levels exceeding HDOH EALs in previous sampling events.” [Id.]

24

pesticide-contaminated soils in MCBH common areas.

[Opp. 1 at

8-10 & n.27 (citing Smith Decl. 1, Exh. 6 (excerpt of
Waikulu/Hana Like Site Report) at OHANA-FCRM010723).]
Plaintiffs argue the results from the Waikulu/Hana Like Site
Report exceed the Tier 1 EALs in the 2007 PSMP, “and are only
slightly below current Tier 2 levels of 5.4 mg/kg in some
instances.”

[Id. at 10 & n.28 (citing Waikulu/Hana Like Site

Report at OHANA-FCRM010723).]

Mr. Poma testified:

Q.
So then if you follow the plan 100
percent and clean soil is then spread throughout
the silent, why do we have detections of
pesticide contamination following the most recent
testing?
A.

Which most recent testing?

Q.
The 2017 testing where you have
detections of pesticides in the clean soil that
was used to cover these different neighborhoods.
A.
They are at very residual levels, very
low levels during –
. . . .
A.
I guess I would say during the
construction that was occurring, there’s some
opportunity for some co-mingling of some low
levels of things that may have ended up in
surface soils or something. But –
Q.
So there is an opportunity that
mistakes could have happened? That’s what it
would be, if there was co-mingling, that would be
a mistake?
A.

Not necessarily a mistake.

Q.

That would be intended by the plan –
25

A.

Not intended.

[Smith Decl. 1, Exh. 2 (Poma Depo.) at 205-06.]

Plaintiffs

argue Mr. Poma admitted that Ohana’s purported remediation
efforts actually spread OCP-contaminated soil and that Ohana did
not follow the 2007 PSMP.

[Opp. 1 at 10.]

Defendants have submitted evidence that, in January
2018, Mololani and Pa Honua soils were tested prior to the
installation of four new playgrounds, and OCPS “‘were either not
detected at laboratory listed soil method detection limits or
below corresponding HDOH Tier 1 EALs.’”

[Poma Decl. at ¶ 11.g

(quoting Poma Decl., Exh. 28 (ACSI’s report regarding Jan. 2018
testing)).]
5.

Plaintiffs’ Homes

Kenneth Lake and Crystal Lake’s (“the Lakes”) home in
Mololani was rebuilt shortly before they moved in.

When the

Mololani Phase II ESA was conducted in 2007, the site of the
Lakes’ home and the sites of the adjacent homes were not tested
for OCPs.

Of the three homes closest to the Lakes’ home that

were tested, one had a Tier 2 EAL exceedance for dieldrin, but
the other homes had no Tier 2 exceedances.

[Id. at ¶¶ 16-17

(citing Poma Decl., Exh. 7 (Mololani Phase II ESA) at Figure 3
(OHANA-FCRM08211)).]

However, based on the current EALs, that

result would be below the Tier 1 EAL.

26

[Id. at ¶ 17.]

During

the Mololani redevelopment (i.e., before the Lakes lived there),
the soil at all of the home sites was addressed.

[Id. at ¶ 18.]

For the site that became the Lakes’ home, “196 cubic yards of
soil . . . were removed and replaced with clean soil or locally
sourced non-expansive fill.”

[Id. (citing Poma Decl., Exh. 8

(Pesticide Soil Activity Closure Report for Mololani Family
Housing – Phase IV, by ACSI, dated November 2012) at OHANAFCRM000192).]

The soil around the Lakes’ home site was tested

during the 2017 testing, see supra Background section I.C.4,
which showed no unsafe OCP levels.

[Poma Decl. at ¶ 19 (citing

Poma Decl., Exh. 18 (Confirmation Report) at OHANA-FCRM
015314).]
The site of the Beans’ home in Pa Honua II was tested
during the 2017 testing.

[Id. at ¶ 21 (citing Confirmation

Report at OHANA-FCRM 015248).]

The Beans subsequently lived in

Hawaii Loa, which was built on undeveloped land after the OCPban.

Mr. Poma therefore opines that Hawaii Loa was never

treated with OCPs.
Hawaii Loa.

[Id. at ¶ 22.]

The Wilsons also lived in

[Id. at ¶ 32.]

The site of Kyle Pahona’s home in Ulupau was
redeveloped shortly before he moved there, and the soil for each
Ulupau home site was addressed during the redevelopment.
at ¶¶ 23-24.]

27

[Id.

With respect to Mr. Pahona’s specific home site,
348 cubic yards of soil were removed from B2671
on June 16, 2011 and taken to the Area 1 PIS Pit.
See Ex. 11 at OHANA-FCRM 000213. Twelve days
later, on June 28, 2011, 156 cubic yards of soil
were removed from G2670 and taken to the Area 4
PIS Pit. See id. at OHANA-FCRM 000219. All of
this soil was replaced with clean soil.
[Id. at ¶ 24.]

The soil around Kyle Pahona’s home site was

tested during the 2017 testing, which showed no unsafe OCP
levels.

[Id. at ¶ 25 (citing Poma Decl., Exh. 18 (Confirmation

Report) at OHANA-FCRM 015233).]
The Moseleys’ first home in MCBH was one of the
original Mololani homes built in 1960.
not tested before redevelopment.

That specific site was

Some homes nearby had no

Tier 1 EAL or Tier 2 EAL exceedances, but other nearby homes had
Tier 2 exceedances for dieldrin and chlordane.

[Id. at ¶ 26

(citing Poma Decl., Exh. 7 (Mololani Phase II ESA) at Figure 4
(OHANA-FCRM008212)).]

However, Mr. Poma states those results

were so low that they would now be below the current Tier 1
EALs.

[Id.]

The Moseleys later lived in the Waikulu

neighborhood, and that home site was redeveloped before they
moved there.

[Id. at ¶ 27.]

The Moseleys’ home site previously

had one of two buildings, neither of which was tested when the
Phase II ESA was performed.

[Id. (some citations omitted)

(citing Poma Decl., Exh. 14 (Rainbow Phase II ESA) at Figure 2
(OHANA-FCRM 006419)).]

Some samples taken from other parts of

28

what became the Waikulu neighborhood were between the Tier 1 and
Tier 2 EALs, while other samples were below the Tier 1 EALs.
[Id. (some citations omitted) (citing Rainbow Phase II ESA at
Figures 4–7 (Ohana-FCRM 006421–6424)).]

“With respect to the

Moseleys’ specific home site, 363.5 cubic yards of soil were
removed and replaced from around building 2578, and 316.3 cubic
yards of soil were removed and replaced from around building
2579.

All of this soil was replaced with clean soil.”

[Id. at

¶ 28 (citing Poma Decl., Exh. 16 (Pesticide Soil Activity
Closure Report for Waikulu Family Housing – Increment 2, by
Ohana, dated 10/26/10) at (OHANA-FCRM000326)).]

The soil around

the Moseleys’ Waikulu home site was tested during the 2017
testing, which showed no unsafe OCP levels.

[Id. at ¶ 29

(citing Poma Decl., Exh. 18 (Confirmation Report) at OHANA-FCRM
015141).]

Finally, the Moseleys lived in the Pa Honua II

neighborhood.

[Id. at ¶ 30.]

The soil around their Pa Honua II

home site was tested during the 2017 testing, which showed no
unsafe OCP levels.

[Id. at ¶ 31 (citing Confirmation Report at

OHANA-FCRM 015229).]
6.

Plaintiffs’ Testimony about OCPs

Harold Bean testified that, just because the Hawaii
Loa neighborhood was built on undeveloped land after chlordane
was banned does not mean chlordane is not present there, and he
disputes the statement that it is “highly unlikely” OCPs were
29

used in the soil near those homes.

[Whattoff Decl. 1, Exh. 47

(excerpts of trans. of 4/9/19 depo. of Harold Alan Bean, Jr.
(“H. Bean Depo.”)) at 80-81.]

Harold Bean stated, “[t]here’s no

proof” that OCPs were never used in Hawaii Loa, and “there is
nothing proving that it was not used in that area during the
time frame that chlordane could have been used.”
see also id. at 84.

Id. at 81-82;

Even though Hawaii Loa was built on

undeveloped land, “the fact that [chlordane] was used in other
locations on base, [he] would have to assume that it was used
there as well.”
82.]

[Whattoff Decl. 1, Exh. 47 (H. Bean Depo.) at

Melinda Bean was asked whether she was “aware of any

research or evidence that suggested that exposure . . . to
residual amounts [of pesticides] in soils around homes can cause
health issues,” and she responded that she was not.

[Whattoff

Decl. 1, Exh. 48 (excerpts of trans. of 4/9/19 depo. of Melinda
Bean (“M. Bean Depo.”)) at 8.]
Crystal Lake testified that she could not identify any
evidence showing the area where she lived in MCBH was impacted
by pesticides, or any other hazardous substances.

[Whattoff

Decl., Exh. 49 (excerpts of trans. of 4/27/19 depo. of Crystal
Lake (“C. Lake Depo.”)) at 8-9.]

She asserts her injury is that

she “was not told about the construction and the soil that was
being dug up on that base and the possibility of it containing
harmful products,” but she could not identify what harmful
30

products were in the soil.

[Id. at 22-23.]

She testified that,

when Defendants informed residents about how soil that was
potentially impacted with pesticides was addressed, Defendants
should have provided citations or evidence “for [her] to refer
to fact check” and confirm the remediation described had
actually been done.

[Id. at 50-51.]

Kenneth Lake gave similar

testimony about what Defendants should have provided.

[Whattoff

Decl. 1, Exh. 50 (excerpts of trans. of 3/11/19 depo. of
Kenneth Lake (“K. Lake Depo.”)) at 59-60.]

Kenneth Lake

testified that he “believe[d] after the mold issue was taken
care of, then [his MCBH home] was a safe place to live.”

[Id.

at 65.]
Ashley Moseley testified that she “can’t say for sure,
but [she has] reason to believe that [she] was” exposed to OCPs
because OCPs were used on MCBH homes and, when Ohana was
“demolishing them, obviously it was in the air and we were
exposed to it since it can live in the ground for, like, twenty
years.”

[Whattoff Decl. 1, Exh. 51 (excerpts of trans. of

4/17/19 depo. of Ashley Moseley (“A. Moseley Depo.”)) at 8.]
She admitted that, other than the prior use of OCPs at MCBH and
the construction, she had no basis for her statement that she
was exposed to OCPs.

[Id. at 8-9.]

She admitted she did not

know whether the soil around her home was impacted by pesticides
during the time she lived there.
31

[Id. at 91.]

Timothy Moseley

testified that his specific homes on MCBH had OCPs in the soil
around them.

He stated the basis for his statement was the maps

and documents showing that OCPs were used on MCBH in general.
[Whattoff Decl. 1, Exh. 52 (excerpts of trans. of 4/16/19 depo.
of Timothy Moseley (“T. Moseley Depo.”)) at 16, 19.]

Timothy

Moseley testified that, other than his homes, he was exposed to
OCPs in “[c]ommon areas, playgrounds, commissary, going to work,
other peoples’ houses, and school,” but he could not identify
any specific document or evidence showing this.

[Id. at 21.]

He testified the he did not have any evidence showing the
reported soil remediation was not done, but there is also no
evidence showing that the remediation was done.

[Id. at 105.]

Kyle Pahona testified that he had no evidence his MCBH
home was impacted by OCPs or any other hazardous substances.
Further, when he lived at MCBH, he was not aware that he had any
exposure to OCPs in ways other than at his home.

[Whattoff

Decl. 1, Exh. 53 (excerpts of trans. of 4/27/19 depo. of Kyle
Pahona (“Pahona Depo.”)) at 5-6.]

He also acknowledged he had

no evidence that the reported soil remediation in his
neighborhood did not occur.

[Id. at 44.]

Heather Wilson testified that she did not know whether
there were OCPs in the Hawaii Loa neighborhood when she lived
there, and she was not aware of any evidence that OCPs were ever
present in the soil in Hawaii Loa.
32

[Whattoff Decl. 1, Exh. 54

(excerpts of trans. of 3/5/19 depo. of Heather Wilson
(“H. Wilson Depo.”)) at 40, 52.]

She stated she was not aware

that OCPs were ever used in the soil around the home where she
lived but, if they were used, Forest City should have told
Plaintiffs about it before they signed their lease.
49.]

[Id. at

Ryan Wilson testified that he was not aware of any

evidence that OCPs were applied to their homes, or any of the
other homes in their neighborhood.

[Whattoff Decl. 1, Exh. 55

(excerpts of trans. of 3/5/19 depo. of Ryan Wilson (“R. Wilson
Depo.”)) at 62-64.]
In response to many of defense counsel’s questions,
Plaintiffs responded that they could not answer because they
were not experts, environmentalists, or scientists.

See, e.g.,

Whattoff Decl. 1, Exh. 47 (H. Bean Depo.) at 81; Exh. 48
(M. Bean Depo.) at 48; Exh. 49 (C. Lake Depo.) at 6; Exh. 50
(K. Lake Depo.) at 60, 115-16; Exh. 52 (T. Mosely Depo.) at 97,
109; Exh. 53 (Pahona Depo.) at 43; Exh. 54 (H. Wilson Depo.) at
49, 57; Exh. 55 (R. Wilson Depo.) at 73-74.
Thus, Defendants argue Plaintiffs have no evidence
that the homes they lived in were impacted by OCPs while they
lived there.

[Motion 1 CSOF at ¶¶ 25-28 (citing pages of

Pltfs.’ deposition transcripts).]

Further, Defendants emphasize

that Plaintiffs could not identify any other specific areas

33

where they were exposed to OCPs.

[Id. at ¶ 30 (citing pages of

Pltfs.’ deposition transcripts).]
D.

Dust at MCBH
Harold Bean testified that the only evidence showing

that the dust he experienced was caused by construction was that
he saw construction going on, including the movement of soil
with equipment.
77.]

[Whattoff Decl. 1, Exh. 47 (H. Bean Depo.) at

His only basis for his belief that the dust was impacted

by OCPs was the fact that OCPs were used at MCBH at some point.
[Id. at 124-26.]

Melinda Bean acknowledged she had no evidence

the construction dust contained pesticides.

[Whattoff Decl. 1,

Exh. 48 (M. Bean Depo.) at 74.]
Kenneth Lake testified that he could not recall
whether the level of dust in his home was affected when
construction was occurring.
85.]

[Id., Exh. 50 (K. Lake Depo.) at

He also testified that he did not know what the source of

the dust was.

[Id. at 88-89.]

Ashley Moseley believed the dust that affected her
home had OCPs because she assumed that that residual OCPs in the
MCBH soil would become airborne during construction.

However,

she admitted that she did not know what levels, if any, of OCPs
there were in the dust.

[Whattoff Decl., Exh. 51 (A. Moseley

Depo.) at 9.]

34

Kyle Pahona testified that he never took pictures of
the dust because there was “[f]ar less dust [at MCBH] than there
would be in Arizona[, where he is from,] so [he] lived with it,”
and he did not think there was anything unusual about the dust
at MCBH.

[Whattoff Decl., Exh. 53 (Pahona Depo.) at 48-49.]

He

stated construction dust, or any other dust at MCBH, did not
impact his life.

[Id. at 51.]

Heather Wilson testified that she did not know whether
the construction dust at MCBH had unsafe levels of pesticide.
[Whattoff Decl. 1, Exh. 54 (H. Wilson Depo.) at 41.]
Ryan Wilson testified that he did not know whether the dust that
impacted his home was from construction at MCBH or from other
areas with exposed dirt, and he could not say whether he
continued to experience dust after the construction was
completed.

[Id., Exh. 55 (R. Wilson Depo.) at 103-04, 106.]
Defendants argue an expert is required to determine

the source of dust.

[Motion 1 CSOF at ¶ 34.]

Defendants’

expert stated:
To the extent that fugitive dust was generated
during the construction-related activities, there
is no evidence that it contained the chemicals
used historically as termiticides for older
housing stock at MCBH. The soil sampling
conducted at MCBH demonstrates that pesticideimpacted soils were highly localized to areas
beneath and adjacent to the foundations of the
older homes. The PSMP established a number of
procedures to minimize the potential for fugitive
dust emissions while handling pesticide-impacted
35

soils. In addition, buildings suspected of
containing hazardous materials, such as asbestos,
were inspected and abated prior to initiating
demolition activities.
[Whattoff Decl. 1, Exh. 58 (Expert Report by James F. Lape, Jr.,
dated 5/22/19 (“Lape Report”)) at § 4.2.12]

As to Plaintiffs’

allegations in this case, Mr. Lape opines:
Some of the most critical steps in the exposure
assessment paradigm described above were missing
from the complaint. For example, there is no
characterization of the chemical-specific
concentration at the point of exposure for any
potential exposure route. Moreover, there is no
characterization of the frequency and duration of
the exposures by a potential receptor[.]
It is my opinion that the chemical-specific
impacts of potential exposures cannot be
expressed with a reasonable scientific certainty
without a more comprehensive exposure assessment.
[Id. at § 4.2.3.]
Defendants also presented testimony about the measures
Ohana took to remove, prior to construction, soil that was
potentially impacted with OCPs.
59.]

[Poma Decl. at ¶¶ 50-54, 56-57,

Mr. Poma acknowledges receiving one complaint about a soil

stockpile in the Mololani neighborhood, but he states the

12

Mr. Lape is “an atmospheric and physical scientist with
more 30 years of experience in the health risk assessment and
environmental science fields,” and his “expertise is in the area
of air toxics fate and transport modeling and exposure
assessment.” [Lape Report at § 1.1.]

36

stockpile was clean soil that was intended for groundcover.
[Id. at ¶ 59 n.18.]
E.

Damages
Plaintiffs seek all or part of their Basic Housing

Allowance (“BAH”) for the time they lived at MCBH.

[Motion 2

CSOF at ¶ 1; Concise statement of facts in supp. of Opp. 2
(“Opp. 2 CSOF”), filed 7/1/19 (dkt. no. 167), at ¶ 1 (stating
Defs.’ ¶ 1 is undisputed).]

Plaintiffs paid the following

amounts in rent while living at MCBH:
Plaintiffs
Lakes
Beans
Kyle Pahona
Moseleys
Wilsons

Amount of Rent
$153,000.00
$153,000.00
$103,605.60
$104,281.00
$253,140.60

[Motion 2 CSOF at ¶ 2; Opp. 2 CSOF at ¶ 2.]

Plaintiffs have

testified that they would not have lived at MCBH had they been
told about the OCPs.

See, e.g., Opp. 2 CSOF, Decl. of

Kyle Smith (“Smith Decl. 2”), Exh. 2 (Pahona Depo.) at 40:7-18.
The Lakes and Ashley Moseley seek general damages for
emotional distress; the Beans, Timothy Moseley, and Kyle Pahona
seek general damages for interference with their use and
enjoyment of their home and community.

[Motion 2 CSOF at ¶¶ 3-

4; Opp. 2 CSOF at ¶¶ 3-4.]
There has been some testimony about medical issues,
such as Kenneth Lake’s low testosterone levels, Harold Bean’s

37

asthma, Ryan Wilson’s asthma and sinus problems, and the Moseley
children’s autism.
¶¶ 5-8.]

[Motion 2 CSOF at ¶¶ 5-8; Opp. 2 CSOF at

However, as to each of these, Plaintiffs state they

“do not seek damages for illness.”

[Opp. 2 CSOF at ¶¶ 5-8.]

Plaintiffs acknowledge they have not identified their doctors or
other medical care providers as potential witnesses, and they
state they do not intend to rely on medical testimony.
Similarly, they acknowledge they have not disclosed any experts,
but they argue none of their claims require expert testimony.
[Motion 2 CSOF at ¶¶ 9-10; Opp. 2 CSOF at ¶¶ 9-10.]
In 2014, Kyle Pahona first heard about MCBH’s prior
use of OCPs, but he did not move off of MCBH until November 30,
2016, when he was transferred.
CSOF at ¶ 19.]

[Motion 2 CSOF at ¶ 19; Opp. 2

Heather Wilson and Crystal Lake also first heard

about OCPs in 2014, but the Wilsons did not consider moving off
of MCBH because of Ryan Wilson’s impending retirement, and the
Lakes did not move off base until Kenneth Lake took a civilian
job.

[Motion 2 CSOF at ¶¶ 20-21; Opp. 2 CSOF at ¶¶ 20-21.]

MCBH lease agreement states it is terminable at will.
CSOF at ¶ 22; Opp. 2 CSOF at ¶ 22 (admitting
part).]

The

[Motion 2

Defs.’ ¶ 22 in

Ashley Moseley states the first MCBH home they rented

had significant dust issues, and they moved off of the base in
2009.

However, the Moseleys later moved back to MCBH and lived

there for several more years.

Those homes did not have
38

significant dust impacts.

[Motion 2 CSOF at ¶ 23; Opp. 2 CSOF

at ¶ 23.]
II.

Motions
In Motion 1, Defendants argue they are entitled to

summary judgment as to each of the remaining counts because:
1) Plaintiffs ultimately will be unable to prove they were
exposed to unsafe levels of pesticides, or any other substance;
and 2) this is a necessary element of each of Plaintiffs’ claims
and.

Defendant asserts that, because Plaintiffs have failed to

present sufficient evidence to raise a genuine issue of fact as
to this element, all of Plaintiffs’ claims fail as a matter of
law.
In Motion 2, Defendants argue they are entitled to
summary judgment on all of Plaintiffs’ remaining claims because
Plaintiffs are unable to prove any damages.

In the alternative,

Defendants seek a ruling excluding certain theories of
Plaintiffs’ damages.

According to Defendants, Plaintiffs’

damages theories are: 1) they are entitled to the return of all
of the rent they paid while living at MCBH; 2) in the
alternative, they should be awarded the difference between the
rent they paid and the rent they would have paid if the presence
of OCPs on MCBH had been disclosed; and 3) they are entitled to
general damages and emotional distress damages.

39

DISCUSSION
I.

Motion 1
A.

Safe and Habitable Housing
In order to ultimately prevail on Counts I, II, and

III, Plaintiffs must prove that Ohana, as to Counts I and II,
and Defendants, as to Count III, failed to provide safe and
habitable housing to Plaintiffs.

See First Amended Complaint at

¶¶ 62, 63.b, 63.c (alleging Ohana breached its lease agreements
with Plaintiffs by failing to provide safe and habitable housing
and a safe and inhabitable community at MCBH); 5/31/18 Order,
2018 WL 2449188, at *6 (“A property owner breaches the implied
warranty of habitability if he leases his property with a defect
or unsafe condition that is of a nature and kind which will
render the premises unsafe, or unsanitary and thus unfit for
living.” (citations and internal quotation marks omitted)); id.
(ruling Plaintiffs’ allegation that Defendants violated Haw.
Rev. Stat. § 521-10 is actionable pursuant to Haw. Rev. Stat.
§ 521-63).13

Plaintiffs’ position that they are not required to

prove they were exposed to OCPs is rejected.

13

Section 521-10 states: “Every duty imposed by this
chapter and every act which must be performed as a condition
precedent to the exercise of a right or remedy under this
chapter imposes an obligation of good faith in its performance
or enforcement.” Section 521-63 states, in pertinent part:
(. . . continued)
40

1.

Scope of Plaintiffs’ Claims

Count I alleges that Ohana agreed to provide safe and
habitable conditions both at Plaintiffs’ homes and in the MCBH
community generally.

See 5/31/18 Order, 2018 WL 2449188, at *5.

Plaintiffs’ MCBH leases indicate that Ohana contemplated
offering various community services and facilities for
residents’ use throughout MCBH, in connection the leases of
their homes.

See, e.g., Whattoff Decl. 2, Exh. T (Pahona Lease)

at OHANA-FCRM 016507 (“Owner may provide from time to time
various services, equipment and facilities for residents to use
at their own risk. . . .

Resident recognizes that Owner

provides these services and facilities for Residents only as a

(a) If any condition within the premises
deprives the tenant of a substantial part of the
benefit and enjoyment of the tenant’s bargain
under the rental agreement, the tenant may notify
the landlord in writing of the situation and, if
the landlord does not remedy the situation within
one week, terminate the rental agreement. The
notice need not be given when the condition
renders the dwelling unit uninhabitable or poses
an imminent threat to the health or safety of any
occupant. . . .
(b) If the condition referred to in
subsection (a) was caused wilfully or negligently
by the landlord, the tenant may recover any
damages sustained as a result of the condition.
Plaintiffs contend they were deprived of the benefit and
enjoyment of their rental homes because the conditions at MCBH
were not safe and habitable. [Opp. 1 at 13-15.]

41

courtesy in connection with Resident’s leasing of the
Premises.”); Smith Decl. 1, Exh. 8 (Community Handbook) at 7
(stating that “common areas[] include[e] but [are] not limited
to parking lots, stairwells, breezeways, jogging trails, laundry
rooms, courtyard areas, the grounds surrounding the Premises,
clubrooms, sport courts, creeks, lakes and pools” and “are for
the use and enjoyment of all Residents at the Neighborhood”);
id. at 25 (“Playgrounds are provided throughout the Neighborhood
for Resident, Occupant and Guest use and enjoyment.”).

Forest

City, as Ohana’s agent, was responsible for the ground
maintenance for these community facilities.

See, e.g., Smith

Decl. 1, Exh. 8 (Community Handbook) at 13 (“RSO’s will
regularly mow and maintain all unfenced grounds around the
Premises including common areas, community centers and
playgrounds.”); id. at 25 (“the playgrounds and common areas are
cleaned and mowed on a schedule by the maintenance
technicians”).14

For purposes of the instant Motions, the record

must be viewed in the light most favorable to Plaintiffs, the
nonmoving party, and all inferences must be drawn in Plaintiffs’
favor.

See S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir.

2019).

Viewing Plaintiffs’ leases and the Community Handbook in

14

“RSOs” refers to “Resident Services Offices,” which are
staffed by the Forest City “team.” [Smith Decl. 1, Exh. 8
(Community Handbook) at 1.]

42

the light most favorable to Plaintiffs, it can be reasonably
inferred that Defendants undertook the obligation to maintain
the grounds underneath the community facilities in a safe
condition.15
Plaintiffs have presented evidence that they and their
children frequently traveled throughout the MCBH community for
various activities, including going to school, visiting friends’
houses, and playing at the playground.

See, e.g., Smith

Decl. 1, Exh. 11 (H. Wilson Depo.) at 68-69; id., Exh. 12
(Response & Objections to Def. Ohana Military Cmtys., LLC’s
First Request for Answers to Interrogs. to Pltf. Heather Wilson,
dated 2/26/19) at response to interrog. no. 2.

Therefore, in

ruling on Motion 1, this Court must consider whether Plaintiffs
were exposed to unsafe and uninhabitable conditions anywhere at
MCBH, not only whether their specific homes at MCBH were safe
and habitable.
2.

Lack of Expert Testimony

In Motion 1, Defendants argue Plaintiffs have not
raised a genuine issue of fact as to the issue of whether MCBH
was unsafe and uninhabitable because Plaintiffs have not
15

In contrast, Ohana expressly disclaimed “any warranties
concerning the equipment or facilities,” and MCBH residents
agreed that “representations have not been made regarding the
safety, desirability or quality of equipment or facilities.”
[Smith Decl. 1, Exh. 8 (Community Handbook) at 8.]

43

presented any expert testimony.

Further, even if Counts I, II,

and III proceed to trial, Plaintiffs will be unable to prove
that issue without expert testimony.

Plaintiffs contend they

are not required to present expert testimony because the
evidence Defendants have presented establishes the widespread
presence of OCPs throughout MCBH and the risks that OCPs
present.

However, the only specific document that Plaintiffs

mention is the PSMP, and, while Plaintiffs assert the “PSMP and
related documentation confirms pesticide contamination, exposure
estimates, cancer risks, and other relevant details for the MCBH
community[,]” Plaintiffs do not identify any specific statement
in the PSMP or in any other document.

[Opp. 1 at 25.]

Defendants have carried their initial burden on summary
judgment, and Plaintiffs’ general reliance on the PSMP and other
unspecified documents does not raise a genuine issue of material
fact as to Plaintiffs’ claim that MCBH was unsafe and
uninhabitable because of pesticide contamination in the soil.
See Fed. R. Civ. P. 56(a) (stating a party is entitled to
summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law”).16

16

This district court has stated: “The burden initially
falls on the moving party to identify for the court those
‘portions of the materials on file that it believes demonstrate
(. . . continued)
44

Regarding chlordane – the most commonly used OCP for
termite treatment in Hawai`i, the 2007 PSMP states:
Most exposures to chlordane are through
inhalation, ingestion or absorption through the
skin. The most common source is from ingesting
chlordane-contaminated food. Swallowing small
amounts of chlordane or breathing air containing
high concentrations of chlordane vapors can cause
headaches, irritation, confusion, weakness, and
vision problems. Based on animal studies, the
U.S. Environmental Protection Agency (USEPA) has
determined that chlordane is a probable human
carcinogen. Exposure to high enough amounts can
cause adverse effects to the liver.
[Poma Decl. 1, Exh. 23 (2007 PSMP) at 5.]

The 2007 PSMP makes

similar statements about aldrin and dieldrin.

[Id.]

The 2007

PSMP does not specify what amount of the OCPs must be ingested
or inhaled to produce adverse health effects.
As to the 2007 PSMP’s target risk levels, see supra
Background section I.C.1 (quoting 2007 PSMP at 10), Plaintiffs
argue the PSMP unilaterally determined that it is acceptable to
expose MCBH residents to a 1 in 100,000 risk of cancer and other

the absence of any genuine issue of material fact.’” Campbell
v. Dep’t of Human Servs., 384 F. Supp. 3d 1209, 1216 (D. Hawai`i
2019) (citing T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)), appeal filed, (9th
Cir. May 22, 2019). Because Defendants have carried their
burden, Plaintiffs “must set forth specific facts showing that
there is a genuine issue for trial.” Id. (citing T.W. Elec.
Serv., 809 F.2d at 630).

45

non-cancer adverse health effects.17

[Opp. 1 at 6.]

However,

the 1 in 100,000 risk for Tier 2 EALs is consistent with the
guidance provided by various government environmental regulatory
offices.

[Poma Decl., Exh. 23 (2007 PSMP) at 11-12.]

The 2007

PSMP sets forth the processes for: dealing with pesticideimpacted soils during demolition and construction; and on-going
operation and maintenance of housing areas with pesticideimpacted soils.18

[Id. at 21-34.]

As previously noted, the

HDOH, HEER Office concurred in the 2007 PSMP.

The Concurrence

Letter specifically states: “This concurrence includes the use
of the proposed Tier 2 EALs (which incorporate cumulative risk
considerations for multiple contaminants) for project sites.”
[Poma Decl., Exh. 27 (Concurrence Letter) at 1.]

Moreover, the

HDOH, HEER Office subsequently increased the thresholds for the
relevant Tier 1 EALs.

See Poma Decl. at ¶ 11.g & n.8 (citing

HDOH Tier 1 Documentation at Table B-1).

In raising the

thresholds, the HDOH stated: “A cancer risk of less than one-in-

17

Of the neighborhoods at issue in this action, the 2007
PSMP only analyzed Kapoho, Waikulu – Manning, Waikulu – NCO Row,
and Waikulu – Rainbow. See Poma Decl., Exh. 23 (2007 PSMP) at
3, 16-17. However, as previously noted, there is evidence that
Defendants considered the PSMP applicable to all MCBH
neighborhoods.
18

The 2007 PSMP defines “pesticide-impacted soils” as
“soils with pesticide concentrations above the Tier 2 EALs.”
[Poma Decl., Exh. 23 (2007 PSMP) at 21.]

46

ten thousand . . . is considered to be insignificant and not
detectable in a population.”
pg. 1-6 (emphases added).]

[2017 HDOH Tier 1 Documentation at

The 2017 HDOH Tier 1 Documentation

only states that the contaminant should be removed if the cancer
risk is more than 1 in 10,000.

[Id.]

In order to prevail on Counts I, II, and III,
Plaintiffs must establish that, in spite of: 1) the regulatory
bases for the 1 in 100,000 risk-level threshold; 2) the HEER
concurrence; and 3) the HDOH’s subsequent increase in the Tier 1
EALs, the 2007 PSMP permitted pesticide levels at MCBH which
rendered MCBH unsafe and uninhabitable.

In Barber, the district

court stated:
Expert testimony may be admissible if the
expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
understand the evidence or to determine a fact in
issue. Fed. R. Evid. 702(a); Pyramid Tech., Inc.
v. Hartford Cas. Ins. Co., 752 F.3d 807, 813 (9th
Cir. 2014).
. . . .
The Court must evaluate Hawaii state
substantive law to determine if expert testimony
is required. Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78–80 (1938); see Pyramid Tech., Inc., 752
F.3d at 818.
. . . .
Under Hawaii law a plaintiff is only
required to provide expert testimony to establish
his prima facie case in limited circumstances.

47

Expert testimony is not required in an
ordinary negligence case. Hawaii law provides
that in an ordinary negligence case, the jury can
determine whether there has been a breach of
defendant’s duty to the plaintiff on the basis of
their everyday experience, observations, and
judgment. Exotics Hawaii–Kona, Inc. v. E.I.
DuPont De Nemours & Co., [116 Hawai`i 227,] 172
P.3d 1021, 1043–44 (Haw. 2007) (citing Bernard v.
Char, [79 Hawai`i 371,] 903 P.2d 676, 682 (Haw.
App. 1995)).
Barber v. Ohana Military Cmtys., LLC, Civil No. 14-00217 HG-KSC,
2015 WL 4171984, at *6 (D. Hawai`i July 9, 2015).19

In the

instant case, the claims in Counts I, II, and III are more
complex than “ordinary negligence claims.”

The issue of whether

MCBH could be considered unsafe and uninhabitable, in spite of
the regulatory support for the positions taken in the 2007 PSMP,
requires knowledge that is beyond the “everyday experience,
observations, and judgment” of a jury.

19

See Exotics Haw.-Kona,

This Court agrees with the district court in Barber that,
under Hawai`i law, expert testimony is not required for a
plaintiff to establish an ordinary negligence claim. The
district court’s discussion focused upon the Barber plaintiffs’
negligence claims. See 2015 WL 4171984, at *7 (“Here,
Plaintiffs’ negligence causes of action do not require expert
testimony for Plaintiffs to establish a prima facie case.”); id.
(“One of the principal claims made by Plaintiffs in their
negligence causes of action is that Defendants breached their
duty to Plaintiffs when they failed to remediate the soil as
provided in their Pesticide Soils Management Plan.”). This
Court, however, disagrees with, and declines to follow, the
district court’s extension of its ruling that expert testimony
was not required for the Barber plaintiffs’ negligence claims to
the Barber plaintiffs’ claims that did not sound in negligence.
See id.

48

116 Hawai`i at 299-300, 172 P.3d at 1043-44.

An expert

witness’s “scientific, technical, or other specialized
knowledge” is necessary to help the jury understand the evidence
and to determine whether MCBH was safe and habitable.
Rule 702(a).

See

Because Plaintiffs did not identify any expert

witnesses regarding soil contamination and remediation
standards, they cannot contest the positions in the 2007 PSMP,
or other similar documents, discussed supra Background sections
I.C.1-4, that Ohana: 1) identified areas within MCBH that
required remediation of contaminated soil; and 2) identified
appropriate remedial actions.
Arguments by Plaintiffs’ counsel and testimony by
Plaintiffs attacking the assumptions and methodology in the 2007
PSMP and other similar documents do not constitute expert
testimony.

Nor is Plaintiffs’ testimony admissible as lay

opinion because no plaintiff testified to a sufficient factual
basis that would support a finding that his or her opinions were
“rationally based on th[at] witness’s perception” and were “not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”

See Fed. R. Evid. 701(a), (c);

see also Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523
F.3d 1051, 1060 (9th Cir. 2008) (stating “a district court does
not abuse its discretion in allowing lay opinion testimony when
a witness cannot explain through factual testimony the
49

combination of circumstances that led him to formulate that
opinion” (citation and internal quotation marks omitted)).
Thus, Plaintiffs have failed to present any admissible evidence
that raises a genuine issue of material fact as to the validity
of the 2007 PSMP and other similar documents.

See Weil v.

Citizens Telcom Servs. Co., 922 F.3d 993, 998 (9th Cir. 2019)
(“we may only consider admissible evidence when reviewing a
motion for summary judgment”).
3.

Alleged Failure to Comply

Plaintiffs next argue the existing record raises a
genuine issue of material fact regarding whether Defendants
complied with the remediation efforts called for in the 2007
PSMP and other similar documents.

Plaintiffs argue the Navy

refuses to represent that the homes on MCBH are safe.
at 18.]

[Opp. 1

An email obtained in a Freedom of Information Act

request during Barber states:
there is some thought in the HQ MCIPAC legal
community that we do not have a proper basis to
include the first bullet of slide 4, as we have
no “quantitative evidence” to say the homes are
safe. Until this issue is resolved among “the
lawyers,” recommend the first bullet of slide 4
not be used at our NOA briefs, and we go back to
status quo on having Forest City make any
representations on the safety of the quarters
under their management.
[Smith Decl. 1 at ¶ 3, Exh. 10 (email dated 10/21/15, sender and
recipients redacted).]

Although this email arguably shows the

50

Navy declined to make a statement that MCBH homes were safe, the
email also shows the Navy allowed Forest City to make such
representations.

As previously noted, Forest City is Ohana’s

agent in Ohana’s PPV with the Navy/Marines.

Thus, the email

cannot be construed as disclaiming the safety and habitability
of MCBH housing.

Even viewing the record in the light most

favorable to Plaintiffs, this email does not raise a triable
issue fact as to: 1) whether Defendants complied with the 2007
PSMP and other similar documents; or 2) whether MCBH was unsafe
and uninhabitable due to unresolved soil contamination issues.
Plaintiffs also argue Mr. Poma admitted during his
deposition that contaminated soil was co-mingled with clean soil
during the remediation efforts.

See Smith Decl. 1, Exh. 2 (Poma

Depo.) at 205-06, quoted supra Background section I.C.4.

During

that line of questioning, Mr. Poma testified the levels of
pesticides detected in the 2017 testing were at low, residual
levels.

Even viewing the record in the light most favorable to

Plaintiffs, this is not enough to raise a triable issue of fact
as to whether Ohana complied with the 2007 PSMP and other
similar documents.

Plaintiffs would have to present expert

testimony to show that the residual levels of pesticides found
in the 2017 testing show that Ohana failed to comply with the
remediation procedures set forth in the 2007 PSMP and other
similar documents.

Viewing the current record as a whole in the
51

light most favorable to Plaintiffs, it must be concluded that
Plaintiffs have not presented any admissible evidence that Ohana
failed to comply with the 2007 PSMP and other similar documents.
4.

Ruling

There is undisputed evidence in the record that Ohana:
1) identified areas within MCBH that required remediation of
contaminated soil; 2) identified appropriate remedial actions;
and 3) implemented those remedial measures.

Plaintiffs have

failed to present sufficient evidence to raise a triable issue
of fact as the issue of whether MCBH was safe and habitable.
Summary judgment is therefore granted in favor of: Ohana as to
the portion of Count I alleging Ohana breached the Plaintiffs’
leases by failing to provide safe and habitable living
conditions on MCBH; Ohana as to Count II; and Defendants as to
Count III.
In addition, Count I also alleges Ohana breached its
lease agreements with Plaintiffs by failing to “fully implement”
the PSMP.

[First Amended Complaint at ¶ 63.d.]

Because

Plaintiffs have failed to present sufficient evidence to raise a
triable issue of fact as to the alleged failure to comply with
the 2007 PSMP, or any other applicable version, Ohana is
entitled to summary judgment as to that portion of Count I.

52

B.

Failure to Warn
The remaining portion of Count I alleges Ohana

breached Plaintiffs’ lease agreements by failing to “[d]isclose
the presence, nature, or extent of pesticide-contaminated soils
at MCBH.”

[Id. at ¶ 63.a.]

In addition, Count V alleges

Defendants negligently failed to warn Plaintiffs about the risks
presented by the pesticide-contaminated soils at MCBH.

[Id. at

¶¶ 96-97.]
1.

Breach of Contract

As previously noted, the Community Handbook, which is
incorporated into Plaintiffs’ lease agreements, contains a
disclosure about the prior use of now-banned pesticides.

[Smith

Decl. 1, Exh. 8 (Community Handbook) at 12, quoted supra
Background section I.B.]

The disclosure states such pesticides

“may be found in soils under and around housing constructed in
both civilian and military communities.”

[Id.]

Plaintiffs have

not identified any specific term in their lease agreements that
obligated Ohana to make a more detailed disclosure about the
possibility of residual pesticides in the soil at MCBH.

See

5/31/18 Order, 2018 WL 2449188, at *5 (stating one of the
elements of a breach of contract claim is the identification of
the specific provision that the defendant allegedly violated).
Plaintiffs appear to argue that this portion of Count I alleges

53

a breach of the covenant of good faith and fair dealing, which
is implied in their lease agreements.

See Opp. 1 at 14.

None of the allegations in Count I refer to a breach
of the implied covenant of good faith and fair dealing.
First Amended Complaint at ¶¶ 59-67.

See

However, even if

Plaintiffs are allowed to pursue a breach of contract claim that
is not plead in the First Amended Complaint, the claim would
still fail as a matter of law.

“Under Hawai`i law, ‘every

contract contains an implied covenant of good faith and fair
dealing that neither party will do anything that will deprive
the other of the benefits of the agreement.’”

Liberty Mut. Ins.

Co. v. Sumo-Nan LLC, CIVIL NO. 14-00520 DKW-KSC, 2015 WL
6755212, at *3 (D. Hawai`i Nov. 4, 2015) (quoting Best Place,
Inc. v. Penn Am. Ins. Co., 82 Hawai`i 120, 123-24, 920 P.2d 334,
337-38 (1996)).

In Plaintiffs’ lease agreements, Ohana agreed

to provide safe and habitable conditions at MCBH.

This Court

has ruled that Ohana is entitled to summary judgment on
Plaintiffs’ claims asserting that Ohana failed to provide safe
and habitable conditions.

It is therefore assumed that

Plaintiffs were provided with safe and habitable conditions
while they lived at MCBH.

Thus, Ohana’s failure to disclose

more information about the prior use of now-banned pesticides at
MCBH did not deprive Plaintiffs of the benefits of their lease
agreements.

Plaintiffs have failed to raise a triable issue of
54

fact as to their allegation that Ohana breached Plaintiffs’
lease agreements by failing to disclose more information about
potential pesticide-contamination in the soil at MCBH.
Defendants are therefore entitled to summary judgment as to that
portion of Count I.
2.

Negligent Failure to Warn

In Barber, the district court stated:
A successful negligence claim must satisfy
the following four elements: (1) a duty, or
obligation, recognized by the law, requiring the
actor to conform to a certain standard of
conduct, for the protection of others against
unreasonable risks; (2) a failure on the actor’s
part to conform to the standard required; (3) a
reasonably close causal connection between the
conduct and the resulting injury; and (4) actual
loss or damage resulting to the interests of
another. Ono v. Applegate, 612 P.2d 533, 538
(Haw. 1980).
The Hawaii Intermediate Court of Appeals has
explained that the duty to warn against unusual
hazards has long been recognized as a source of
tort liability. Kajiya v. Dep’t of Water Supply,
629 P.2d 635, 639 (Haw. Ct. App. 1981) (internal
citation omitted). Pursuant to Hawaii law, one
who is in control of “what he knows or should
know is a dangerous agency, which creates a
foreseeable peril to persons or property that is
not readily apparent to those endangered to the
extent that it is reasonably possible, one owes a
duty to warn them of such potential danger.” Id.
at 640.
Barber v. Ohana Military Cmtys., LLC, Civil No. 14–00217 HG–KSC,
2014 WL 3529766, at *9 (D. Hawai`i July 15, 2014).

Because

Defendants have established that Ohana provided safe and

55

habitable conditions at MCBH, the potential presence of residual
pesticides in the soil at MCBH was not “a dangerous agency[]
which create[d] a foreseeable peril to” Plaintiffs.
2 Haw. App. at 226, 629 P.2d at 640.

See Kajiya,

Thus, Defendants did not

have a duty to provide any further warnings to Plaintiffs beyond
the pesticide disclosure contained in Plaintiffs’ lease
agreements.

Defendants are therefore entitled to summary

judgment as to Count V.
C.

Remaining Claims
1.

Counts VI, VII, and VIII

Counts VI, VII, and VIII are also premised upon
Plaintiffs’ positions that: 1) the residual pesticides in the
soils at MCBH placed Plaintiffs at increased health risks; and
2) Defendants had a duty to warn Plaintiffs about the prior use
of now-banned pesticides at MCBH.

[First Amended Complaint at

¶¶ 110-12 (Count VI), ¶¶ 108-09 (Count VII), ¶¶ 126-27
(Count VIII).20]

Because summary judgment has been granted in

favor of Defendants as to these issues, Counts VI, VII, and VIII
also fail as a matter of law.

Defendants are therefore entitled

to summary judgment as to those claims.

20

The paragraphs of the First Amended Complaint are
misnumbered.

56

2.

Nuisance

As previously noted, the Beans’ and the Moseleys’
nuisance claims have been dismissed with prejudice.

Thus, only

the Lakes, Kyle Pahona, and the Wilsons still have nuisance
claims (“Nuisance Plaintiffs”).

The Nuisance Plaintiffs’

claims, have two components: 1) the pesticide-contaminated soil
and dust at MCBH constituted a nuisance (“Contamination Nuisance
Claims”); [id. at ¶¶ 160-61;] and 2) construction dust at MCBH
generally, without regard to the contents of the dust,
constituted a nuisance (“Construction Nuisance Claims”), [id. at
¶¶ 159].

For the reasons stated, supra Discussion

section I.C.1, the Contamination Nuisance Claims fail as a
matter of law.

Defendants are therefore entitled to summary

judgment as to that portion of Count XI.
As to the Construction Nuisance Claims, expert
testimony is not required for the Nuisance Plaintiffs to
establish their prima facie case because the issues associated
with these claims are within their first-hand knowledge, and a
jury would be able to decide those issues without the assistance
of expert testimony.

See Barber, 2015 WL 4171984, at *7

(“Plaintiffs are able to present their own testimony that
visible dust occurred during Defendants’ construction while
Plaintiffs were tenants at [MCBH].

57

Nothing in Hawaii state law

requires an expert opinion in such circumstances.” (citing
Yoneda v. Tom, 133 P.3d 796, 814 (Haw. 2006))).

Further, the

Construction Nuisance Claims do not require proof that MCBH was
unsafe and uninhabitable.
This Court has previously stated:
A “nuisance” is defined as:
. . . that which unlawfully annoys or does
damage to another, anything that works hurt,
inconvenience, or damage, anything which
annoys or disturbs one in the free use,
possession, or enjoyment of his property or
which renders its ordinary use or physical
occupation uncomfortable, and anything
wrongfully done or permitted which injures
or annoys another in the enjoyment of his
legal rights.
Littleton v. State, [66 Haw. 55,] 656 P.2d 1336,
1344 (Haw. 1982) (quoting 58 Am. Jur. 2d
Nuisances § 1 at 555 (1971)).
. . . A “nuisance” is an activity or
condition that actively interferes with an
individual’s right to use and enjoy land. See
Western Sunview Properties, LLC v. Federman, 338
F. Supp. 2d 1106, 1116 (D. Haw. 2004) (A nuisance
“has been defined as ‘a nontrespassory invasion
of another’s interest in the private use and
enjoyment of his land.’”) (quoting Layton v.
Yankee Caithness Joint Venture, 774 F. Supp. 576,
577 (D. Nev. 1991)). The “central idea of
nuisance is the unreasonable invasion” of a
property interest. Lussier v. San Lorenzo Valley
Water Dist., 206 Cal. App. 3d 92, 100 (Cal. Ct.
App. 1988). . . .
[Order Granting in Part and Denying in Part Defs.’ Motion to
Dismiss, filed 8/1/17 (dkt. no. 63) (“8/1/17 Order”), at 26

58

(some alterations in 8/1/17 Order).21]

It is undisputed that

construction took place in MCBH while the Nuisance Plaintiffs
lived there.

There are genuine issues of material fact as to

whether the dust resulting from the construction unlawfully
disturbed the Nuisance Plaintiffs’ free use and enjoyment of
MCBH.

See Littleton, 66 Haw. at 67, 656 P.2d at 1344.

These

issues preclude summary judgment as to the Nuisance Plaintiffs’
Construction Nuisance Claims in Count XI.

Motion 1 is therefore

denied as to that portion of Count XI.
3.

Other Hazardous Substances

Plaintiffs’ claims in the First Amended Complaint
appear to focus upon pesticide contamination in the soil at
MCBH.

However, to the extent that their claims can be construed

as also alleging they were exposed to other hazardous
substances, besides OCPs, in the soil, Plaintiffs’ claims fail
for the same reasons set forth, supra Discussion section I.A.
Plaintiffs have not presented sufficient evidence to raise a
triable issue of fact as to the issues of: 1) whether the other
substances contained in the soil were hazardous and rendered
MCBH unsafe and uninhabitable; and 2) whether Defendants had a

21

The 8/1/17 Order is also available at 2017 WL 4563079.
Reconsideration of the 8/1/17 Order was granted in part on
grounds not relevant to the instant Motion in 2017 WL 4560123
(Oct. 12, 2017).

59

duty to disclose to Plaintiffs information about the allegedly
hazardous substances before they entered into their lease
agreements.
D.

Summary
Motion 1 is denied as to the portion of Count XI

asserting claims by the Lakes, Kyle Pahona, and the Wilsons,
that construction dust at MCBH – in general and without regard
to the contents of the dust – constituted a nuisance.

Motion 1

is granted in all other respects.
II.

Motion 2
In light of its rulings on Motion 1, this Court is

only required to address the issues in Motion 2 as to the
Nuisance Plaintiffs’ damages for the Construction Nuisance
Claims.

If the Nuisance Plaintiffs “establish liability and

causation at trial and if they present sufficient evidence to
establish their damages for the injuries to their [rental]
properties, their recovery is limited to . . . expenses actually
incurred . . . to remediate the injuries to their properties.”
See Aana v. Pioneer Hi-Bred Int’l, Inc., CIVIL NO. 12-00231 LEKBMK, CIVIL NO. 12-00665 LEK-BMK, 2014 WL 12607849, at *3 (D.
Hawai`i Dec. 10, 2014).

Further, if Kyle Pahona is still

residing at MCBH, see supra note 2, he is entitled to recover
the costs to remediate the injuries to his rental home, as of
the time of trial.

See Aana, 2014 WL 12607849, at *3.
60

As another element of actual damages, the Nuisance
Plaintiffs may also seek the return of their rental payments, if
they present evidence that: 1) the construction dust was so
severe, from the outset of their rental term, that they would
not have rented their homes at MCBH if Defendants had disclosed
to them prior to entering into their lease agreements what the
extent of the construction dust would be; or 2) if the
construction dust did not arise until after they were already
living at MCBH, they wanted to terminate their lease agreements,
but Defendants prevented them from doing so.

However, because

the Nuisance Plaintiffs cannot receive a windfall, any recovery
of rental payments must be reduced by the reasonable rent that
they would have paid for other comparable housing during the
same period.

See Tabieros v. Clark Equip. Co., 85 Hawai`i 336,

389–90, 944 P.2d 1279, 1332–33 (1997) (“The general rule in
measuring damages is to give a sum of money to the person
wronged which as nearly as possible, will restore him or her to
the position he or she would be in if the wrong had not been
committed.” (brackets, citation, and quotation marks omitted)).
In addition to the foregoing actual damages, the
Nuisance Plaintiffs may also recover special damages.

The

Restatement (Second) of Torts states:
If one is entitled to a judgment for harm to land
resulting from a past invasion and not amounting

61

to a total destruction of value, the damages
include compensation for
. . . .
(b)

the loss of use of the land, and

. . . .
(c) discomfort and annoyance to him as an
occupant.
Restatement (Second) of Torts § 929(1).

There is no case law

from the Hawai`i appellate courts adopting or rejecting § 929.
This Court must therefore predict how the Hawai`i Supreme Court
would decide the issue.

See Trishan Air, Inc. v. Fed. Ins. Co.,

635 F.3d 422, 427 (9th Cir. 2011).

This Court has previously

predicted that the Hawai`i Supreme Court would follow
Restatement (Second) of Torts § 822, regarding the elements of a
private nuisance claim.

Aana v. Pioneer Hi-Bred Int’l, Inc.,

Civil Nos. 12-00231 LEK-BMK, 12-00665 LEK-BMK, 2015 WL 181764,
at *6-7 (D. Hawai`i Jan. 14, 2015).

Consistent with that

prediction, this Court also predicts that the Hawai`i Supreme
Court would follow the Restatement (Second) of Torts regarding
the measure of damages for a nuisance claim.

Thus, if the

Nuisance Plaintiffs prevail, and they present a sufficient
factual basis, they would be entitled to recover damages for:
the loss of use and enjoyment of their homes, and of the MCBH
community, caused by the construction dust; and their discomfort
and annoyance caused by the construction dust.
62

Because there are cognizable damages theories for the
Construction Nuisance Claims, Motion 2 is denied, insofar as
Defendants assert they are entitled to summary judgment because:
1) the Nuisance Plaintiffs are unable to prove any damages; and
2) none of the Nuisance Plaintiffs’ damages theories are viable.
However, Motion 2 is granted as to Defendants’ request for a
ruling limiting the potential recovery of rental payments.
III. Remaining Issues Regarding Plaintiffs’ Other Claims
Although it is unnecessary in light of the rulings on
Motion 1, some of the other issues raised in the Motions will be
addressed for the sake of completeness.

Even if Plaintiffs’

claims regarding pesticide-impacted soil did not fail for the
reasons set forth supra Discussion section I.A, those claims,
and the evidence in support thereof, would be limited as set
forth below.
A.

Adverse Health Conditions
There has been some testimony about medical issues,

but Plaintiffs have conceded that they will not be presenting
medical evidence, and that they are not seeking damages for
illnesses.

See supra Background section I.E.

Even viewing the

record in the light most favorable to Plaintiffs, Plaintiffs
have failed to present admissible evidence that anything they
were exposed to at MCBH caused those adverse health conditions.
See Weil, 922 F.3d at 998.

Therefore, Plaintiffs would not be
63

allowed to pursue any claim based on adverse health conditions
that were allegedly caused by OCPs, other hazardous substances,
or construction dust, that Plaintiffs were exposed to at MCBH.
B.

Plaintiffs’ Fear of Adverse Health Effects
Even though Plaintiffs could not pursue claims based

on adverse health effects, they would be allowed to testify
about the generalized fear of adverse health effects that they
experienced after they learned about the OCP levels in the soil
at MCBH.

The experience of such fear is within Plaintiffs’

personal knowledge, and the description of such fear does not
require specialized knowledge.

See Fed. R. Evid. 602 (“A

witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal
knowledge of the matter.”).

However, to the extent this

testimony would be based on Plaintiffs’ opinions that exposure
to OCPs – at the levels which they experienced at MCBH –
increased their risk of adverse health effects, Plaintiffs must
first satisfy the requirements for the presentation of lay
opinion testimony set forth in Fed. R. Evid. 701.

Although

Plaintiffs’ lay opinion testimony could not be considered for
purposes of the instant Motions because they failed to establish
the requirements of Rule 701, see supra Discussion
section I.A.2, if Plaintiffs’ OCP-related claims survived

64

summary judgment, Plaintiffs would have another opportunity to
establish the Rule 701 requirements before trial.
C.

NIED
It is well-established that, under Hawai`i law,

“recovery for negligent infliction of emotional distress by one
not physically injured is generally permitted only when there is
some physical injury to property or [another] person resulting
from the defendant’s conduct.”

John & Jane Roes, 1-100 v. FHP,

Inc., 91 Hawai`i 470, 474, 985 P.2d 661, 665 (1999) (alteration
and emphasis in John & Jane Roes) (citations and internal
quotation marks omitted).

In the instant case, Plaintiffs have

not presented any evidence that any Plaintiff or any Plaintiff’s
property was injured as a result of: 1) OCPs or other hazardous
substances in the soil at MCBH; 2) OCPs or other hazardous
substances in the dust at MCBH; or 3) general construction dust
at MCBH.
In John & Jane Roes, the Hawai`i Supreme Court
recognized an exception to the general rule that an NIED claim
requires a physical injury to person or property because the
plaintiffs were exposed to blood that had tested positive for
the human immunodeficiency virus (“HIV”).
P.2d at 667-68.

Id. at 476-77, 985

The supreme court stated:

Exposure to HIV-positive blood “makes the
threat of infection much more of a real
possibility to be feared and far more than a
65

speculative worry.” Brown [v. N.Y. City Health &
Hosps. Corp.], 648 N.Y.S.2d [880,] 886 [(App.
Div. 2 1996)] (citation omitted). As such,
exposure to HIV-positive blood “involve[s]
circumstances which guarantee the genuineness and
seriousness of the claim.” Rodrigues [v. State],
52 Haw. [156,] 171, 472 P.2d [509,] 519 [(1970)].
Inasmuch as actual exposure to HIV-positive blood
would in fact pose a direct, immediate, and
serious threat to an individual’s personal
safety, such exposure would foreseeably engender
serious mental distress in a reasonable
person. . . .
Id. at 476, 985 P.2d at 667 (some alterations in John & Jane
Roes).

Plaintiffs argue this exception should also apply to

their NIED claims because they were subjected to an increased
risk of cancer because of the OCP-levels in the soil and dust at
MCBH.
Initially, it is noted that there is no basis to apply
the John & Jane Roes exception to the portions of Plaintiffs’
NIED claims based upon either: 1) the allegation that OCPs or
other hazardous substances in the MCBH soil and dust exposed
Plaintiffs to adverse health effects other than cancer; or
2) the general construction dust that Plaintiffs experienced at
MCBH.

Nor does the John & Jane Roes exception apply to

Plaintiffs’ claims alleging increased cancer risks because no
admissible evidence was presented suggesting that Plaintiffs
were exposed to OCP-levels which were so high that their cancer
risks were “much more of a real possibility to be feared and far
more than a speculative worry.”

See id. at 476, 985 P.2d at
66

667.

Thus, even apart from the issues addressed supra

Discussion section I.A, Plaintiffs’ NIED claim would fail as a
matter of law.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment No. 1 based upon Plaintiffs’ Inability to Prove
a Required Element of their Claims, and Defendants’ Motion for
Summary Judgment No. 2 based upon Plaintiffs Inability to Prove
Damages, both filed May 22, 2019, are HEREBY GRANTED IN PART AND
DENIED IN PART.

Motion 1 is GRANTED insofar as summary judgment

is granted in favor of Ohana as to Counts I and II and in favor
of Defendants as to: the remaining portion of Count III;
Counts V, VI, VII, and VIII; and the portion of Count XI that is
based on the nuisance allegedly caused by contaminated soil and
dust.

Motion 1 is DENIED as to the portion of Count XI that is

based on the nuisance allegedly caused by construction dust, in
general and without regard to the contents of the dust.
Motion 2 is DENIED as to Defendants’ request for
summary judgment on the ground that: 1) the Nuisance Plaintiffs
are unable to prove any damages; and 2) none of the Nuisance
Plaintiffs’ damages theories are viable.

Defendants’ alternate

request for rulings limiting the Nuisance Plaintiffs’ damages is
GRANTED IN PART AND DENIED IN PART.

Motion 2 is GRANTED,

insofar as: 1) any damages based on the Nuisance Plaintiffs’
67

rental payments must be supported by the factual basis described
in this Order; and 2) Plaintiff’s recovery must be reduced by
the reasonable rent that they would have paid for other
comparable housing during the same period.

The remaining

requests for rulings limiting Plaintiffs’ damages are DENIED AS
MOOT, in light of the rulings on Motion 1.
Thus, the only claim remaining for trial is Plaintiffs
Kenneth Lake, Crystal Lake, Kyle Pahona, Ryan Wilson, and
Heather Wilson’s claims asserting that construction dust at
MCBH, in general and without regard to the contents of the dust,
constituted a nuisance.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, September 30, 2019.

KENNETH LAKE, ET AL. VS. OHANA MILITARY COMMUNITIES, LLC, ET AL;
CV 16-00555 LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT NO. 1 AND NO. 2

68