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

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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 DEFENDANT’S MOTION IN LIMINE NO. 2: EXCLUDE
EVIDENCE RELATED TO NEGLIGENT OPERATION OF THE RED HILL
BULK FUEL STORAGE FACILITY, [FILED 2/26/24 (DKT. NO. 280)]
Defendant United States of America (“Defendant”) seeks
to exclude evidence of Defendant’s operation of the Red Hill
Bulk Fuel Storage Facility prior to November 20, 2021 because
that conduct is not in dispute between the parties given
Defendant has admitted it had a duty to use reasonable care in
operating and maintaining the facility, and that it breached
this duty, which resulted in fuel releases on May 6, 2021 and
November 20, 2021. See Def.’s Motion in Limine No. 2: Exclude
Evidence Related to Negligent Operation of the Red Hill Bulk
Fuel Storage Facility, filed 2/26/24 (dkt. no. 280) (“Def.’s MIL
No. 2”). Defendant argues that the remaining contested issues
are “the Navy’s conduct after the November 2021 fuel release, as
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well case the cause, nature, and extent of the Bellwether
Plaintiffs’ claimed injuries.” [Id. at 1.]
Plaintiffs oppose Defendant’s MIL No. 2 and argue that
evidence of what occurred before November 20, 2021 is relevant
to the issues of “undertakings, foreseeability, and awareness of
the risk that are elements of proof for the Plaintiffs’ live
causes of action.” [Pltfs.’ Memorandum in Opposition to Def.’s
MIL No. 2, filed 3/4/24 (dkt. no. 295) (“Mem. in Opp.”) at 1-2.]
As a preliminary matter, the Court notes that “[a]
motion in limine is a procedural mechanism to limit in advance
testimony or evidence in a particular area.” United States v.
Heller, 551 F.3d 1108, 1111 (9th Cir. 2009) (citation omitted).
This Court is afforded broad discretion in adjudicating motions
in limine. See Desire, LLC v. Manna Textiles, Inc., 986 F.3d
1253, 1259 (9th Cir.) (stating a district court’s rulings on
motions in limine are reviewed for abuse of discretion).
“However, in limine rulings are not binding” and the Court “may
always change [its] mind during the course of a trial.” Ohler v.
United States, 529 U.S. 753, 758 n.3 (2000) (citation omitted).
Thus, motion in limine rulings are always provisional.
BACKGROUND
The operative pleading in this matter is Plaintiffs’
Fifth Amended Complaint, which alleges six causes of action:
Negligence (Count I); Negligent Undertaking (Count II); Nuisance
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(Count III); Medical Negligence 1 , Failure to Treat, Delayed Care
(Count IV); Infliction of Emotional Distress (Count V); and
Premises Liability, Duty to Control Force (Count VII). See Fifth
Amended Complaint, filed 12/1/23 (dkt. no. 210). There is no
Count VI. Id. at pg. 175. Plaintiffs seek an award of damages
for:
a. Past and future physical pain and suffering;
b. Past and future mental anguish and emotional
distress;
c. Past and future medical, healthcare, and
attendant care expenses;
d. Past and future lost income and of earning
capacity;
e. Past and future physical impairment;
f. Past and future loss of enjoyment and quality
of life;
g. Past and future loss of enjoyment of property;
h. Increased risk of future harm and medical
monitoring for life;
i. Loss of life expectancy;
j. Nuisance damages, including inconvenience,
illness, and fear;
k. Out of pocket expenses;
l. Loss of personal property;
m. Costs;
1 	This claim is not proceeding to trial for the reasons
stated in the Order Granting in Part and Denying in Part
Defendant’s Motion in Limine No. 3 to Exclude Testimony Related
to Medical Negligence, [Filed 2/26/24 (Dkt. No. 281)], filed
4/22/24 (dkt. no. 458).
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n. Prejudgment and post-judgment interest as
provided by law, at the maximum legal rate; and
o. Such other and further relief to which the
plaintiffs may be justly entitled.
[Id. at pgs. 190-91.]
Plaintiffs do not have the requisite expert
epidemiological testimony necessary to support causation
evidence for claims of some future damages, such as future
medical, healthcare, and attendant care expense; future physical
pain and suffering; future physical impairment; future loss of
enjoyment and quality of life; increased risk of future harm and
medical monitoring for life; and loss of life expectancy; and
thus these alleged damages will not be addressed in the non-jury
trial. See 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).
The parties have stipulated that Defendant admits
that:
- 	The November 20, 2021 spill “caused a nuisance for
Plaintiffs who owned or leased residences subject to the
Hawai`i Department of Health’s November 29, 2021 advisory .
. . .”; [Second Joint Stipulation as to Plaintiffs’
Nuisance and Negligence Claims, filed 11/27/23 (dkt. no.
200) (“Stipulation”) at ¶ 1;]
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- 	Defendant “between May 6, 2021 and November 20, 2021,
[Defendant] breached its duty of care to the Resident
Plaintiffs to exercise ordinary care in the operation of
Red Hill, resulting in the May 6, 2021 and November 20,
2021 spills; [id. at ¶ 2;]
- 	“as a result of the aforementioned nuisance or breach,
Resident Plaintiffs suffered injuries compensable under the
Federal Tort Claims Act (FTCA)”; [id. at ¶ 3;]
- 	Individual officers or employees as well as third-party
contractors are included in the admissions regarding
Defendant; [id. at ¶ 4;] and
- 	Defendant maintains the right to contest causation and
damages claimed by Plaintiffs regarding the negligence and
nuisance claims, to maintain other defenses not addressed
in the Stipulation, or to make potential claims against
anyone other than Plaintiffs; [id. at ¶ 5.]
The parties agreed that the Stipulation only pertains to the
instant litigation and is not for use in any other case. [Id. at
¶ 6.]
STANDARDS
Plaintiffs bring negligence claims and a nuisance
claim. See Fifth Amended Complaint. To proceed with a negligence
claim under Hawai`i law, Plaintiffs must “prove (1) a duty
recognized by the law that the defendant owed to the plaintiff;
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(2) a breach of the duty; (3) that the defendant’s breach was
the legal cause of the plaintiff’s harm; and (4) actual
damages.” O'Grady v. State, 140 Hawai`i 36, 398 P.3d 625, 632
(2017), amended (June 22, 2017) (citing Doe Parents No. 1 v.
Dep’t of Educ., 100 Hawai`i 34, 68, 58 P.3d 545, 579 (2002)).
A claim for medical negligence generally requires the
question of negligence to be decided by reference to medical
standards of care that the plaintiff must prove through expert
medical testimony. Craft v. Peebles, 78 Hawai`i 287, 298, 893
P.2d 138, 149 (1995).
In a claim for general premises liability,
[a]n occupier of land has a duty to use
reasonable care for the safety of all persons
reasonably anticipated to be on the premises,
regardless of the status of the individual as
invitee, licensee, or trespasser. Pickard v. City
& Cnty. of Honolulu, 51 Haw. 134, 135, 452 P.2d
445, 446 (1969) (remanding for new trial based on
duty owed to visitor to courthouse, who used
restroom with broken light switch and fell
through a hole in the floor). See also Gibo v.
City & Cnty. of Honolulu, 51 Haw. 299, 301, 459
P.2d 198, 200 (1969) (holding that hospital had a
duty to maintain premises in a reasonably safe
condition for plaintiff who entered through
ambulance garage rather than main entrance).
Winfrey v. GGP Ala Moana LLC, 130 Hawai`i 262, 271, 308 P.3d
891, 900 (2013). For the claim of premises liability, the
occupier of land has a duty to exercise reasonable care to keep
the premises reasonably safe for any person anticipated upon the
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premises. Gibo v. City & Cnty. of Honolulu, 51 Haw. 299, 301,
459 P.2d 198, 200 (1969).
Plaintiffs clarify that the claim for infliction of
emotional distress is one based on negligence, not
intentionality. [Mem. in Opp. at 2 (“The Fifth Amended Complaint
outlines multiple causes of action relevant to the bellwether
trial, including . . . Negligent Infliction of Emotional
Distress (Count V), . . . .”).] Negligent infliction of
emotional distress (“NIED”) requires
a plaintiff to demonstrate that the defendant
engaged in negligent conduct causing the
plaintiff to suffer serious emotional distress.
Caraang v. PNC Mortg., 795 F. Supp. 2d 1098, 1122
(D. Haw. 2011). Hawaii law requires that a
negligent infliction of emotional distress claim
be supported by a physical injury or mental
illness. Haw. Rev. Stat. § 663-8.9; U.S. E.E.O.C.
v. NCL Am., 535 F. Supp. 2d 1149, 1171 (D. Haw.
2008).
Dural v. City & Cnty. of Honolulu, 658 F. Supp. 3d 855, 876–77
(D. Hawai`i 2023); Doe Parents No. 1 v. State, Dep't of Educ.,
100 Hawai`i 34, 69, 58 P.3d 545, 580 (2002) (“Thus, an NIED
claim is nothing more than a negligence claim in which the
alleged actual injury is wholly psychic and is analyzed
utilizing ordinary negligence principles.”) (quotation
omitted)).
Nuisance is a claim for damages to compensate a
plaintiff who suffered special harm from past nuisance conduct.
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Haynes v. Haas, 146 Hawai`i 452, 463 P.3d 1109, 1118 (2020)
(adopting Restatement of Torts § 821C).
DISCUSSION
Plaintiffs argue that the Stipulation “does not admit
to negligent undertaking, negligent infliction of emotional
distress, or premise liability/duty to control force.” [Mem. in
Opp. at 8.] They are mistaken. Defendant has stipulated that it
had a duty of care, breached that duty, and that breach caused
the spills occurring on May 6 and November 20, 2021. See
Stipulation at ¶ 2 (“[Defendant] admits that, between May 6,
2021, and November 20, 2021, [Defendant] breached its duty of
care to the Resident Plaintiff to exercise ordinary care in the
operation of Red Hill, resulting in the May 6, 2021 and November
20, 2021 spills.”). Aside from the nuisance claim, all remaining
claims are negligence claims - whether labeled as NIED,
negligent undertaking, premises liability or duty to control
force – and thus duty and breach have already been stipulated
to.
The issues to be resolved at trial are causation and
compensatory damages. Causation is the cause “that is legally
sufficient to result in liability.” O'Grady, 140 Hawai`i at 44,
398 P.3d at 633; see also id., 140 Hawai`i at 43, 398 P.3d at
632 (“This court has long required a plaintiff to prove that the
defendant's conduct was the legal cause of his or her injuries
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as one of the prima facie elements of negligence.”).
Compensatory damages are awarded to
“compensate the injured party for the injury
sustained,” Kuhnert v. Allison, 76 Hawai`i 39,
44, 868 P.2d 457, 462 (1994), in hopes of
“restor[ing] a plaintiff to his or her position
prior to the tortious act[,]” Zanakis–Pico v.
Cutter Dodge, Inc., 98 Hawai‘i 309, 327, 47 P.3d
1222, 1240 (2002) (Acoba, J., concurring). The
law divides such “damages into two broad
categories-general and special.” Ellis v.
Crockett, 51 Haw. 45, 50, 451 P.2d 814, 819
(1969). General damages “encompass all the
damages which naturally and necessarily result
from a legal wrong done[,]” id., and include such
items as “pain and suffering, inconvenience, and
loss of enjoyment which cannot be measured
definitively in monetary terms.” Dunbar v.
Thompson, 79 Hawai`i 306, 315, 901 P.2d 1285,
1294 (App. 1995) (citation omitted). Special
damages are “the natural but not the necessary
result of an alleged wrong[,]” Ellis, 51 Haw. at
50, 451 P.2d at 819, and are “often considered to
be synonymous with pecuniary loss and include
such items as medical and hospital expenses, loss
of earnings, and diminished capacity.” Dunbar, 79
Hawai`i at 315, 901 P.2d at 1294.
Bynum v. Magno, 106 Hawai`i 81, 85–86, 101 P.3d 1149, 1153–54
(2004). “[T]o permit an award for future medical . . .
expenses,” a plaintiff must provide sufficient evidence to show
the medical expenses are necessary and the charges reasonable.
Condron v. Harl, 46 Haw. 66, 76, 374 P.2d 613, 619 (1962).
The Stipulation establishes Defendant’s negligence
liability – with the exception of causation. The remaining trial
issues are causation and damages. “Irrelevant evidence is not
admissible.” Fed. R. Evid. 402. Relevant evidence is evidence
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having any “tendency to make a fact more or less probable than
it would be without the evidence; and . . . the fact is of
consequence in determining the action.” Fed. R. Evid. 401.
Because Defendant’s duty and breach of duty for the spills
occurring on May 6 and November 20, 2021 are already
established, then evidence pertaining to duty and breach of duty
for these spills is not of consequence in determining the
action, irrelevant, and not admissible. Therefore, evidence
pertaining to duty, breach of duty, and the breach of duty
causing the May 6 and November 20, 2021 spills is not relevant
and must be excluded as inadmissible evidence, unless the
proponent of the evidence can first establish the evidence is
relevant to the remaining issues of causation and compensatory
damages.
CONCLUSION
For the reasons stated above, Defendant’s Motion in
Limine No. 2: Exclude Evidence Related to Negligent Operation of
the Red Hill Bulk Fuel Storage Facility, filed 2/26/24 (dkt. no.
280) is GRANTED, and evidence of Defendant’s operation of the
Red Hill Bulk Fuel Storage Facility prior to November 20, 2021
is EXCLUDED, unless the proponent of the evidence can first
establish the evidence is relevant to the remaining issues of
causation and compensatory damages.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, April 23, 2024.
PATRICK FEINDT, JR., ET AL. VS. UNITED STATES OF AMERICA; CV 22-
00397 LEK-KJM; ORDER GRANTING DEFENDANT’S MOTION IN LIMINE NO.
2: 	EXCLUDE EVIDENCE RELATED TO NEGLIGENT OPERATION OF THE RED
HILL BULK FUEL STORAGE FACILITY, [FILED 2/26/24 (KDT. NO. 280)]
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