Hamilton-Ford, et al v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
PATRICK FEINDT, JR., et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 22-00397 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S PARTIAL MOTION FOR SUMMARY
JUDGMENT [DKT. NO. 204], AND GRANTING DEFENDANT’S
MOTION TO STRIKE AFFIDAVIT OF DR. STEVEN BIRD [DKT. NO. 225]
Before the Court is Defendant United States of
America’s (“Defendant” or “United States”) Partial Motion for
Summary Judgment (“Motion for Partial Summary Judgment”), filed
on November 30, 2023. [Dkt. no. 204.] Plaintiffs filed their
memorandum in opposition (“Motion for Partial Summary Judgment
Opposition”) on January 5, 2024. [Dkt. no. 220.] Among the
exhibits Plaintiffs submitted in support of their opposition was
an Affidavit of Dr. Steven Bird, dated December 28, 2023 (“Bird
Affidavit”). [Dkt. no. 221-2. 1 ] Defendant filed its reply on
1 The Bird Affidavit is Exhibit 1 to the declaration of
Kristina Baehr in support of Plaintiffs’ Response to Defendants’
Statement of Facts and Plaintiffs’ Separate Concise Statement of
Facts in Opposition to Defendant’s Motion for Partial Summary
Judgment [ECF No. 205] (“Baehr Declaration” and “Plaintiffs’
CSOF”). [Plaintiffs’ CSOF, filed 1/5/24 (dkt. no. 221), Baehr
Decl., Exh. 1 (Bird Aff.).] Another version of the Bird
(. . . continued)
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January 12, 2024. [Dkt. no. 229.] Relatedly, on January 9, 2024,
Defendant filed its Motion to Strike Affidavit of Dr. Steven
Bird (“Motion to Strike”) and Plaintiffs filed their opposition
on January 29, 2024 (“Motion to Strike Opposition”). [Dkt. nos.
225, 258.] These matters came on for hearing on February 22,
2024.
On February 26, 2024, this Court issued an entering
order informing the parties of its summary ruling granting
Defendant’s Motion to Strike and granting in part and denying in
part Defendant’s Motion for Partial Summary Judgment, among
other things. [Dkt. no. 282.] This Order supersedes that
entering order. The Motion to Strike is hereby granted, and the
Motion for Partial Summary Judgment is hereby granted in part
and denied in part for the reasons set forth below.
BACKGROUND
This case arises out of the May 6 and November 20,
2021 fuel leaks from the United States Navy’s Red Hill Bulk Fuel
Storage Facility on Joint Base Pearl Harbor-Hickam (“Red Hill”
and “JBPHH”). [Fifth Amended Complaint, filed 12/1/23 (dkt.
Affidavit with only limited redactions was subsequently filed.
See Bellwether Plaintiffs’ Notice of Filing Exhibit 3 in Support
of Bellwether Plaintiffs’ Memorandum in Opposition to the United
States’ Motion to Exclude Expert Report and Testimony of
Dr. Steven Bird [ECF No. 234], filed 2/9/24 (dkt. no. 269)
(“Refiled Bird Aff.”), Exh. 3.
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no. 210), at pgs. iii, 1; ¶¶ 4, 9. 2 ] Defendant was allegedly
negligent in releasing fuel into the water supply. [Id. at ¶ 4.]
Plaintiffs allege the following claims against Defendant: (1) a
negligence claim (“Count I”); (2) a negligent undertaking claim
(“Count II”); (3) a nuisance claim (“Count III”); (4) a medical
negligence claim alleging failure to treat and delayed care
(“Count IV”); (5) an infliction of emotional distress claim
(“Count V”); and (6) a premises liability claim alleging breach
of the duty to control force (“Count VII”). In Counts I, II and
VII, Plaintiffs allege they “suffered special damages and will
require testing/medical monitoring to be determined by expert
testimony.” [Id. at ¶¶ 470, 484, 545.] Plaintiffs further allege
that “[e]ach plaintiff is also at increased risk of future
medical harm and will need medical monitoring for the associated
long-term illnesses.” [Id. at ¶ 553.]
Plaintiffs also allege they have suffered generalized
fear. See id. at ¶ 82. For example, in Count III, Plaintiffs
2 At the time the Motion for Partial Summary Judgment was
filed, the operative complaint was the Fourth Amended Complaint,
filed June 13, 2023, [dkt. no. 121]. Subsequently, Plaintiffs
filed their Fifth Amended Complaint, which omitted certain
Plaintiffs’ claims of medical negligence and Count VI, but is
otherwise substantially the same as the Fourth Amended
Complaint. See Joint Stipulation as to the Fifth Amended
Complaint, Its Impact on Pending Motion to Dismiss Briefing, and
Clarification of the Bellwether Plaintiffs’ Damages Claims,
filed 11/30/23 (dkt. no 201), Exh. A (redlined version of the
proposed Fifth Amended Complaint).
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allege “[t]he nuisance caused by the United States has
substantially impaired the plaintiffs’ use and enjoyment of
their property, has caused inconvenience, decreased quality of
life, physical and mental discomfort, reasonable fear of
disease, and adverse health effects.” [Id. at ¶ 491 (emphasis
added).] Further, in the causation section of the Fifth Amended
Complaint, Plaintiffs allege, “[b]ut for the conduct of the
federal officers at Red Hill, the plaintiff families would not
have suffered inconvenience, illness, economic injury, and
fear,” [id. at ¶ 549 (emphasis added),] and “each plaintiff has
suffered inconvenience and life disruption, economic injury,
illness, and fear and trauma,” [id. at ¶ 552 (emphasis added)].
Plaintiffs also allege that “Patrick Feindt and his entire
family . . . . reasonably fear for their medical future.” [Id.
at ¶ 93.]
Defendant’s Motion for Partial Summary Judgment asks
this Court to grant summary judgment in its favor as to
Plaintiffs’ claim for damages for fear of latent injuries
because Plaintiffs have failed to raise a genuine issue of fact
for trial as to the question of whether their degree of exposure
was so high that their fear of latent injuries was “‘much more
of a real possibility to be feared and far more than a
speculative worry.’” [Motion for Partial Summary Judgment, Mem.
in Supp. at 1 (quoting Lake v. Ohana Mil. Cmtys., LLC, No. CV
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16-00555 LEK, 2019 WL 4794536, at *24 (D. Haw. Sept. 30, 2019)
(Kobayashi, J.) (quoting John & Jane Roes, 1-100 v. FHP, Inc.,
985 P.2d 661, 667 (Haw.)), vacated on other grounds, 14 F.4th
993 (9th Cir. 2021)).]
Defendant supports its Motion for Partial Summary
Judgment with Plaintiffs’ report of medical toxicologist Steven
Bird, M.D. (“Bird Report”) and excerpts from Dr. Bird’s
deposition. [Def.’s Concise Statement of Facts in Supp. of Its
Partial Motion for Summary Judgment (“Def.’s CSOF”), filed
11/30/23 (dkt. no. 205), Exh. A (letter dated 7/24/23 from Dr.
Bird to Cindi Solomon, Esq. (“Bird Report”)); id., Exh. B
(transcript excerpts of Dr. Bird’s 11/14/23 remote videotaped
deposition (“Bird Depo.”). 3 ]
Plaintiffs support the Motion for Partial Summary
Judgment Opposition with the Bird Report, excerpts from Dr.
Bird’s deposition, and the Bird Affidavit, among other evidence.
[Baehr Decl., Exh. 1 (redacted version of the Bird Affidavit),
3 Other versions of Defendant’s Exhibits A and B with only
limited redactions was subsequently filed. See Def.’s Notice of
Filing Exhibits A and B, in Support of Its Local Rule 56.1
Concise Statement of Facts [ECF Nos. 205-1, 205-2], filed
2/12/24 (dkt. no. 272) (“Refiled Summary Judgment Exhibits”),
Exh. A (Bird Report), Exh. B (“Bird Depo.”). All subsequent
references to the Bird Report refer to the version within in the
Refiled Summary Judgment Exhibits.
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Exh. 2 (Bird Report), Exh. 5 (redacted excerpts of the Bird
Deposition).]
Dr. Bird submitted his Bird Report on July 24, 2023,
his supplemental report on October 23, 2023, and his rebuttal
and supplemental report on November 30, 2023. [Bird Report;
Motion to Strike, Declaration of Caroline W. Stanton (“Stanton
Decl.”) at ¶ 5 (incorporating as Exh. D in support of the Motion
to Strike dkt. no. 221-4, the 10/23/23 supplemental expert
report of Dr. Bird (“10/23 Bird Supplemental Report”)); Stanton
Decl. at ¶ 6 (incorporating as Exh. E in support of the Motion
to Strike dkt. no. 221-5, the 11/30/23 supplemental and rebuttal
expert report of Dr. Bird (“11/30 Bird Rebuttal and Supplemental
Report”)). 4 ] Defendant deposed Dr. Bird on November 14, 2023.
[Refiled Summary Judgment Exhs., Exh. B (Bird Depo.).]
Dr. Bird opines, among other things, that Plaintiffs
“have a reasonable fear of significant long term effects from
their exposure to jet fuel-contaminated water,” and that
“[t]here is a need for medical surveillance of exposed
individuals, including . . . testing.” [Bird Report at 6.]
4 Unredacted versions of the 10/23 Bird Supplemental Report
and the 11/30 Bird Rebuttal and Supplemental Report are filed
under seal at docket numbers 224-3 and 224-4, respectively.
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STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), 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.” 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 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) (quoting
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987)). If the moving party carries its
burden, the non-movant - here Plaintiffs - “must set forth
specific facts showing that there is a genuine issue for trial.”
See id. (citing T.W. Elec. Serv., Inc., 809 F.2d at 630). On
summary judgment, the court “view[s] the facts in the light most
favorable to the nonmoving party and draw[s] all inferences in
that party’s favor.” S.R. Nehad v. Browder, 929 F.3d 1125, 1132
(9th Cir. 2019) (citation omitted)).
DISCUSSION
I. 	Motion to Strike
Defendant moves to strike the Bird Affidavit because
it allegedly offers new opinions, including “Opinions on the
Necessity of Dose for Toxicological Analysis,” “Opinions on
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Sampling and Modeling,” and “Opinions on Concentrations of JP-5
to Which Bellwether Plaintiffs Were Exposed,” 5 that were not
contained in the Bird Report or Dr. Bird’s supplemental reports.
Motion to Strike, Mem. in Supp. at 5-7, see generally Refiled
Bird Aff. Defendant argues the Bird Affidavit contains “a
detailed defense of his methodology,” especially regarding dose
of exposure and causation. [Motion to Strike, Mem. in Supp. at
11.] Plaintiffs, on the other hand, argue the Bird Affidavit
does not contain new opinions, is not an improper supplemental
opinion, and is not prejudicial. Specifically, Plaintiffs
contend many of the paragraphs that Defendant moves to strike
are not expert opinions but discussions of relevant evidence
that Dr. Bird examined. [Motion to Strike Opp. at 22-23.]
Plaintiffs rebut each paragraph cited by Defendant as “new” as
in fact being a summarized version of prior reports. [Id. at 8-
22.]
“District courts have the discretion to bar a party
from relying on late-disclosed expert testimony at summary
judgment.” Furuta v. Hawaiian Airlines Inc., CIVIL NO. 19-00617
JAO-KJM, 2022 WL 3645764, at *1 (D. Hawai`i Aug. 24, 2022)
(citing Wong v. Regents of the Univ. of Cal., 410 F.3d 1052,
1062 (9th Cir. 2005)). Federal Rule of Civil Procedure 26(a)(2)
5 JP-5 refers jet propulsion 5 jet fuel. See Bird Report at
3.
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governs the disclosure of expert testimony. Experts retained to
offer testimony at trial must submit a written report, which
must contain, among other things, “a complete statement of all
opinions the witness will express and the basis and reasons for
them,” and “the facts or data considered by the witness in
forming them.” Fed. R. Civ. P. 26(a)(2)(B)(i), (ii). Parties
“must make these disclosures at the times and in the sequence
that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).
Additionally, Rule 26(e) permits a party to “supplement or
correct” an expert’s report if that party learns that the report
is “incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1).
“Rule 37(c)(1) gives teeth to th[e] [expert
disclosure] requirement by forbidding the use at trial of any
information required to be disclosed by Rule 26(a) that is not
properly disclosed.” Yeti by Molly Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). Rule 37(c)(1)
provides that, “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) . . . , the party
is not allowed to use that information or witness to supply
evidence on a motion, . . . unless the failure was substantially
justified or is harmless.” A court may not exclude evidence
under Rule 37(c)(1) if the failure to disclose the information
was either substantially justified or harmless. See Yeti by
Molly Ltd., 259 F.3d at 1106.
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The Bird Affidavit is an untimely supplemental expert
report that cannot be considered harmless. The Bird Affidavit
was executed on December 28, 2023 and filed on January 5, 2024,
after the expert discovery deadline of November 20, 2023. See
Third Stipulated Amended Rule 16 Scheduling Order, filed
10/30/23 (dkt. no. 192), at ¶ 8.a; see generally Refiled Bird
Aff. While the Bird Affidavit purportedly contains the same
information as the Bird Report, the 10/23 Bird Supplemental
Report, the 11/30 Bird Rebuttal and Supplemental Report, and
Dr. Bird’s deposition testimony, the Bird Affidavit is phrased
differently enough that this Court cannot consider the Bird
Affidavit to be a mere summary of the same. Compare Refiled Bird
Aff. with Bird Report; 10/23 Bird Supplemental Report; 11/30
Bird Rebuttal and Supplemental Report; Stanton Decl., Exh. F
(Bird Depo.); Motion to Strike Opp., declaration by Cynthia
Solomon (“Solomon Decl.”), Exh. H (Bird Depo.).
To take one representative example of the problems
evident in the Bird Affidavit, in paragraph 29 states: “In cases
where dose is not known, it is standard practice in the field of
toxicology to examine other lines of evidence in performing
one’s analysis including the type of symptoms, symptom severity,
and consistency of the expressed symptoms with known
literature.” [Refiled Bird Affidavit at ¶ 29.] Plaintiffs
contend Dr. Bird previously expressed this opinion in the Bird
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Report, the 11/30 Bird Rebuttal and Supplemental Report, and
during Dr. Bird’s deposition. [Motion to Strike Opp. at 11-13.]
However, the sources that Plaintiffs point towards do not state
this opinion in a similar enough way for this Court to conclude
the meaning is the same. Plaintiffs point to the following
statements by Dr. Bird as being simply restated in paragraph 29
of the Bird Affidavit.
In the 11/30 Bird Rebuttal and Supplemental Report,
Dr. Bird states, “reliable methodology does include
consideration of all known data available including qualitative
data. Those data include the use of medical records, fact
sheets, interviews with the Plaintiffs, and the known facts
about the water contamination discussed in the previous
paragraph.” [Dkt. no. 221-5 at 3.] The 11/30 Bird Rebuttal and
Supplemental Report also states:
I considered the facts known in this case and
consideration of each Plaintiff’s unique health
history. There is ample evidence that there was
an odor and sheen of fuel reported by each of the
Plaintiff families; that more than 4,000 people
presented for acute medical care following the
jet fuel leak; that the Navy took actions to
evacuate people from the base and to flush the
water system with millions of gallons of water
over approximately 4 months; that the symptoms of
the Plaintiffs are essentially identical to what
the military states are symptoms of hydrocarbon
exposure; and that the [Centers for Disease
Control and Prevention/Agency for Toxic
Substances and Disease Registry (“CDC/ATSDR”)]
went on-site to study the individuals for
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suspected jet fuel toxicity. Those facts are all
consistent with a significant exposure.
[Dkt. no. 224-4 (filed under seal) at 3.]
Plaintiffs also rely on the following passages from
the Bird Report:
The Bradford Hill term of consistency refers to
the concept that studies done in different
populations or that studies of different designs
(for instance, in vitro tests and epidemiologic
tests) yield similar results. This criterion is
also met in that studies utilizing varied in
vitro, animal studies, and human studies
consistently demonstrate adverse health effects
in various organ systems utilizing various
outcome measures. Furthermore, of note is that
the CDC/ATSDR September 2022 follow up survey
found that 80% of those who responded to the
survey self-reported they were still experiencing
health symptoms.
[Bird Report at 72-73 (citation omitted).]
My conclusion that the 16 [sic] Plaintiffs
received a sufficient toxicological exposure to
JP-5 to cause the harms enumerated above is
supported by interviews with each of these
Plaintiffs, each of their medical records, the
testimony of Dr. Oh, Brewer’s report, and the
reports of Rosenfeld, Keller, Andruska, Vargo,
and Clark. Furthermore, the fact of this
sufficient toxicological dose is corroborated by
multiple additional lines of evidence: . . .
(6) the fact that the CDC’s surveys and medical
record reviews report similar acute and long term
symptoms to those experienced by the Plaintiffs.
[Id. at 77.]
Finally, Plaintiffs point to Dr. Bird’s deposition
testimony, in which he testifies he assessed Plaintiffs in the
same way he assesses patients in his clinical practice, by
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considering the circumstances of what happened, the individual’s
complaints and findings, exposure if known, and available
medical data if available, speaking to the patient and their
family members, review labs and records, and what medications
they take. [Solomon Decl., Exh. H (Bird Depo.) at 371-73.]
Although the excerpts cited above demonstrate that
Dr. Bird’s reports and testimony relate to how Dr. Bird
determined Plaintiffs were exposed to contaminants, what
methodology he used to make these determinations, and what
“reliable methodology” consists of, nowhere does Dr. Bird
explicitly state it is “standard practice” “in cases where dose
is not known” to examine other lines of evidence. Dr. Bird
states what he himself does when evaluating his own patients,
what he did when evaluating Plaintiffs, and that “reliable
methodology” includes consideration of data including “medical
records, fact sheets, interviews with the Plaintiffs, and the
known facts about the water contamination discussed in the
previous paragraph.” [11/30 Bird Rebuttal and Supplemental
Report (dkt. no. 221-5, filed under seal) at 3.] While this
Court notes this difference is not extreme, it is substantial
enough to expand upon the opinions Dr. Bird previously gave
through his reports and deposition testimony. Further, this
Court notes the wording of the Bird Affidavit appears related to
the alleged flaws with Dr. Bird’s opinions that the United
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States highlights in its Motion for Partial Summary Judgment.
Although this will be discussed in more detail infra, in its
Motion for Partial Summary Judgment, Defendant points out
alleged inadequacies with the Bird Report – primarily concerning
his lack of quantitative evaluation of dose. See, e.g., Motion
for Partial Summary Judgment, Mem. in Supp. at 7-10.] The Bird
Affidavit, though similar to Dr. Bird’s reports and testimony,
appears to be worded, at least in parts, to respond to the
alleged flaws that Defendant identifies in its Motion for
Partial Summary Judgment. Therefore, Plaintiffs do not meet
their burden of demonstrating that the differences between the
Bird Affidavit and Dr. Bird’s reports and testimony are
harmless. See Fed. R. Civ. P. 37(c)(1).
This Court grants Defendant’s Motion to Strike and
excludes the Bird Affidavit as an impermissible supplemental
expert report pursuant to Rule 37(c)(1). Accordingly, the Bird
Affidavit is stricken.
Although this Court will not consider the Bird
Affidavit in ruling on the Motion for Partial Summary Judgment,
this Court will consider Dr. Bird’s reports and deposition
testimony. See FNBN-RESCON I LLC v. Ritter, No. 2:11–cv–1867–
JAD–VCF, 2014 WL 979930, *5 (D. Nev. Mar. 12, 2014) (“[F]or an
expert opinion to be considered on summary judgment, it must be
accompanied by a proper affidavit or deposition testimony[.]”).
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II. 	Motion for Partial Summary Judgment
Defendant argues it is entitled to summary judgment as
to Plaintiffs’ claim for damages for fear of latent injuries
because Plaintiffs have failed to present expert testimony that
raises a genuine issue of fact of trial as to the question of
whether their degree of exposure was so high that their fear of
latent injuries was “much more of a real possibility to be
feared and far more than a speculative worry.” [Motion for
Partial Summary Judgment, Mem. in Supp. at 1 (citation
omitted).] Defendant argues there is no genuine issue of fact
for trial as to this claim because Plaintiffs cannot establish
causation due to Dr. Bird’s failure to properly consider dosage.
[Id. at 7-10.] Defendants also note Dr. Bird stated in his
deposition that he is not opining that any of the bellwether
Plaintiffs will, to a reasonable degree of medical probability,
develop a future, latent health effect from their exposure to
JP-5 in their drinking water. Further, Defendant argues Dr. Bird
does not quantify the increased risk of latent health effects
Plaintiffs are at risk of, nor does he specify precisely which
health effects Plaintiffs are at increased risk of developing.
[Id. at 10-11.]
The Motion for Partial Summary Judgment is granted as
to Plaintiffs’ request for special damages for testing and
medical monitoring for future medical injury. Under Hawai`i law,
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expert testimony to establish causation for an increased risk of
latent injury claim is required because determining causation in
such an instance requires specialized knowledge. Expert
testimony is necessary because whether Plaintiffs will require
medical monitoring for future medical injury requires
“specialized knowledge.” See Fed. R. Evid. 702(a); Exotics
Hawaii-Kona, Inc. v. E.I. du Pont de Nemours & Co., 116 Hawai`i
277, 300, 172 P.3d 1021, 1044 (2007) (“Clearly, a jury of lay
persons generally lacks the knowledge to determine the factual
issues of medical causation . . . .”). “Expert testimony is
necessary . . . where an injury is subjective in character and
of such nature that a layperson cannot with reasonable certainty
know whether there will be future pain and suffering.” Larsen v.
Pacesetter Sys., Inc., 74 Haw. 1, 44–45, 837 P.2d 1273, 1295
(1992) (citation omitted). When an injury is not “objective,”
such that “it would not be plainly apparent to a layperson” that
a medical condition will occur in the future, “expert testimony
[i]s necessary to establish a reasonable probability of future
pain and suffering.” Id. at 45, 837 P.2d at 1295.
However, this Court has excluded Dr. Bird’s opinions
that “the dose and duration of JP-5 exposure were sufficient to
cause long-term injuries; that studies support that exposure to
jet fuel can result in long-term health effects to various organ
systems; that many Plaintiffs are experiencing or have
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experienced long-term effects from the JP-5 exposure; and that
there is a need for medical surveillance of exposed
individuals[.]” [Order Granting in Part and Denying in Part
Defendant’s Motion to Exclude the Expert Report and Testimony of
Dr. Steven Bird, [Filed 1/16/24 (Dkt. No. 234)], filed 4/9/24
(dkt. no. 410) at 20. Plaintiffs do not offer opinions regarding
long-term injuries or the need for medical monitoring from other
experts in support of their opposition to the Motion for Partial
Summary Judgment. See generally Plaintiffs’ CSOF.
Viewing the record in the light most favorable to
Plaintiffs and drawing all inferences in favor of Plaintiffs,
Plaintiffs fail to present sufficient evidence to raise a
genuine issue of material fact as to Plaintiffs’ increased risk
of latent injury and corresponding need for medical monitoring
and testing. See Fed. R. Civ. P. 56(a). Summary judgment is
therefore granted in favor of Defendant as to Plaintiffs’ claims
for special damages for testing and medical monitoring.
As to Plaintiffs’ claim for emotional distress due to
fear of future injury, the Motion is denied. Plaintiffs need not
submit expert testimony as to the reasonableness of their fear.
Instead, Plaintiffs may testify as to their generalized fear of
adverse health effects based on personal knowledge. See Lake,
2019 WL 4794536, at *23 (The plaintiffs “would be allowed to
testify about the generalized fear of adverse health effects
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that they experienced after they learned about the
[organochlorinated pesticide] levels in the soil at [Kaneohe
Marine Corp Base Hawaii]. The experience of such fear is within
[the p]laintiffs’ personal knowledge, and the description of
such fear does not require specialized knowledge.” (citation
omitted)); see also 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.”). As such, Defendant has not carried its burden of
demonstrating there is no genuine issue of material fact
regarding Plaintiffs’ claim for fear of future injuries.
Defendant has not shown that Plaintiffs “cannot produce
admissible evidence to support the fact” of their emotional
distress. See Fed. R. Civ. P. 56(c)(1)(B). Summary judgment on
this claim is therefore improper.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to
Strike the Affidavit of Dr. Steven Bird, filed January 9, 2024,
is HEREBY GRANTED. The Affidavit of Dr. Steven Bird, [dkt.
no. 269-1, originally filed at dkt. no. 221-2,] is STRICKEN.
Defendant’s Partial Motion for Summary Judgment, filed November
30, 2023, is HEREBY GRANTED IN PART AND DENIED IN PART.
Defendant’s Partial Motion for Summary Judgment is GRANTED
insofar summary judgment is granted in favor of Defendant as to
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Plaintiffs’ claim for special damages for medical monitoring and
testing. Defendant’s Partial Motion for Summary Judgment is
DENIED as to Plaintiffs’ claim for fear of future injury.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 10, 2024.
PATRICK FEINDT, JR., ET AL. VS. UNITED STATES OF AMERICA; CV 22-
00397 LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S PARTIAL MOTION FOR SUMMARY JUDGMENT [DKT. NO. 204],
AND GRANTING DEFENDANT’S MOTION TO STRIKE AFFIDAVIT OF DR.
STEVEN BIRD [DKT. NO. 225]
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