A lawsuit trial brought by families affected by the Red Hill water crisis against the federal government under the Federal Tort Claims Act saw both sides make their closing arguments Monday.
“We both agree that there was negligence and that the negligence caused harm,” said Kristina Baehr, an attorney for the families. “But the question is, What kind of harm, for how long and, of course, the legal issues?”
U.S. District Court Judge Leslie Kobayashi is hearing the case without a jury. Both sides are scheduled to submit post-trial briefs in June, after which the judge will
deliberate before issuing a decision. Attorneys representing the 17 plaintiffs are asking Kobayashi to award between $225,000 and $1.25 million to each person depending on the degree of suffering and
injuries each endured.
The crisis began Nov. 20, 2021, when fuel spilled at the Red Hill fuel storage facility and gradually entered the Navy’s Oahu water system, which serves 93,000 people. Navy officials who responded believed they had contained it and chose not to inform their superiors, state regulators or the public.
In the subsequent days, some residents reported strange-smelling water, and in some cases seeing an oily sheen in their water. Many also reported a variety of
ailments, including rashes, headaches, diarrhea and vomiting. By Nov. 29 the Navy had shut down the contaminated well.
Attorneys with the Department of Justice representing the federal government have called experts who have argued that while the crisis was stressful, that fuel did not move through the entire system — and that the fuel that did was not enough to cause significant illness.
“The November 2021 spill and resulting health advisories certainly disrupted and caused stress to the bellwether plaintiffs, and the United States is not disputing that,” said Eric Rey, a trial attorney representing the government. “The science simply doesn’t support the wide-ranging claims of health effects caused by the November 20 spill.”
Throughout the trial, both sides have called on medical experts and experts in water systems to make their case.
Walter Grayman, a water systems expert testifying for the government, testified during the trial that because health complaints didn’t
begin until several days
after the Nov. 20 spill, that “suggests it didn’t enter the distribution system” until then and that the contamination reached its “plateau” on Nov. 27. He also argued fuel couldn’t have reached Ford Island — where plaintiff Patrick Feindt lived with his wife, Army Maj. Mandy Feindt, and their children — because it was served by the Waiawa water well.
In her closing arguments, Baehr suggested those findings were incomplete because Grayman’s modeling followed the movement of contamination only up until Dec. 5, 2021 — before residents on Ford Island and other areas farther west from Red Hill began reporting symptoms. She said that because the “analysis ended too early, he didn’t account for the real-time data. And the science — we agree that this is about science — that science must account for
real-time data, and the observable data, which is right here before us.”
Paul Rosenfeld, an environmental specialist who testified for the plaintiffs, argued during the trial that the
Navy’s Oahu waterline is “so interconnected there’s no way to avoid that from happening.” Rosenfeld said that even after the Red Hill well was shut off, water pumped from the other wells on the system continued to spread fuel throughout the waterline and that it “gummed up” the pipes.
But Rey argued that because the Feindts never actually smelled fuel in the water, they — and many others — couldn’t have been exposed.
“The doses for these … were all below levels that cause health effects,” he said. “(That they) couldn’t smell petroleum in their homes prior to stop drinking, it is significant and is informative as to their dose — and that’s because if (they) couldn’t smell the petroleum in the water, then it couldn’t have been at a high enough level to cause health effects.”
After the closing arguments, Kobayashi addressed the plaintiffs, telling them she acknowledged that the trial was emotional and at times difficult. She said, “I think that this trial exhibited the best that our litigation process can offer, talking about the rule of law as well as giving an opportunity for individuals to speak their piece in a format that acknowledges pain, acknowledges loss, and hopefully bring some comfort at the end of the day.”
The 17 plaintiffs are among about 7,500 people represented by Baehr’s Just Well Law — based in Austin, Texas — and Hosoda Law Group in Honolulu. Kobayashi’s decision on these first 17 bellwether plaintiffs could determine whether those additional cases will go to trial or be settled out of court.
In a news conference at the entrance of the courthouse after the closing arguments, Baehr told reporters, “This is a historic case because it’s the first time that a water contamination case has succeeded under the federal tort claims.”
“The reason for that is twofold,” she said. “One, this happens in real time; and
because it happened in real time, people knew about it in real time and were able
to bring a claim in real time. And also because the government accepted liability, the government stipulated to liability in this case, which allowed us to get to trial as quickly as we did.”
She added that “our clients came not to punish, but to protect: to protect their families, to protect the water, to protect this land and
ultimately to protect their country — because this is a patriotic exercise to hold the United States to account.”
Mandy Feindt also spoke, telling reporters, “I’ve served on active duty for
18 years, and for far too long the issues that plagued our ranks have been swept under the rug.” She noted her grandfather’s exposure to Agent Orange during the Vietnam War and other incidents of toxic exposure that service members have endured over decades. She thanked members of the
local community who have voiced and given support for the Red Hill families,
including harsh critics of the military.
Both members of military families and local activists waged a public campaign to compel the military to shut down Red Hill as the Pentagon spent months resisting a state emergency order to drain and permanently shut it down. By March 2022, Defense Secretary Lloyd Austin announced the facility would be permanently closed.
Most of the 104 million gallons of fuel was removed between October and March by a joint military task force and a newly formed Navy task force that is currently overseeing long-term remediation and closure efforts.
“I didn’t have appreciation before I came here what aloha really meant,” said Feindt. “And I’m forever grateful for the love and support that this community has shown to us. … Look at all these people who’ve put their differences aside, and they banded together and they linked arms and they stood in solidarity with us, when the military did this to their own people.”
