Jones, 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 MOTION TO EXCLUDE THE EXPERT REPORTS
AND TESTIMONY OF DRS. SPIRA AND KEIFER, AND DENYING
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE DRS. CLARK AND VARGO
Before the Court are Defendant United States of
America’s (“Defendant” or “United States”) Motion to Exclude the
Expert Reports and Testimony of Drs. Spira and Keifer (“Spira
Motion”), [dkt. no. 232,] and Defendant’s Motion in Limine to
Exclude Drs. Clark and Vargo (“Clark and Vargo Motion”), [dkt.
no. 237, 1 ] both filed on January 16, 2024. On March 5, 2024,
Plaintiffs filed their oppositions to both motions, [dkt
nos. 303, 304,] and on March 8, 2024, Defendant filed their
1 The original memorandum in support of the Clark and Vargo
Motion, [dkt. no. 237-1,] has been replaced. See The United
States’ Notice of Filing Materials in Response to ECF No. 249,
filed 1/24/24 (dkt. no. 254) (“Notice of Filing Re Clark and
Vargo Motion”), United States’ Memorandum of Law in Support of
Its Motion in Limine to Exclude Drs. Clark and Vargo. All
citations to the memorandum in support of the Clark and Vargo
Motion refer to version filed with the Notice of Filing Re Clark
and Vargo Motion.
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replies, [dkt. nos. 313, 311]. The Court finds these matters
suitable for disposition without a hearing pursuant to
Rule LR7.1(c) of the Local Rules of Practice for the United
States District Court for the District of Hawaii (“Local
Rules”). For the reasons set forth below, the Spira Motion is
granted in part and denied in part in that Dr. Spira’s opinions
are excluded except insofar as Dr. Spira opines on Plaintiffs’
trauma and the psychological impact of institutional betrayal.
The Court deems the Spira Motion withdrawn as it relates to Dr.
Keifer. The Clark and Vargo Motion is denied in its entirety.
BACKGROUND
The parties are familiar with the facts of this case
and the Court will not repeat them here, except as relevant to
the issues at hand. Briefly, this case arises out of the May 6
and November 20, 2021 fuel leaks from the United States Navy’s
(“the Navy”) Red Hill Bulk Fuel Storage Facility on Joint Base
Pearl Harbor-Hickam (“Red Hill” and “JBPHH”). [Fifth Amended
Complaint, filed 12/1/23 (dkt. no. 210), at pgs. iii, 1; ¶¶ 4,
9.] Plaintiffs allege that Defendant owns and operates Red Hill
and the water system that serves JBPHH, as well as the housing
that Plaintiffs leased and resided in. [Id. at ¶¶ 6, 9, 530.]
Defendant was allegedly negligent in releasing fuel into the
water supply, among other things. [Id. at ¶¶ 4, 467, 481.]
Plaintiffs allege the following claims against Defendant: (1) a
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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”). [Id. at pgs. 161-
79.] Plaintiffs seek damages for, among other things, past and
future: pain and suffering, emotional distress, medical
expenses, loss of income and earning capacity, physical
impairment, loss of enjoyment and quality of life; as well as
increased risk of future harm and medical monitoring for life,
and loss of life expectancy, among other things. [Id. at
pgs. 190-91.]
I. 	Dr. Spira
The Spira Motion as it relates to Dr. Keifer was
withdrawn, so only background pertinent to James L. Spira, PhD,
MPH, ABPP will be briefly summarized. See Opp. to Spira Motion
at 1 n.1. Plaintiffs retained Dr. Spira to assess the impact
that the contamination from the jet fuel leak at Red Hill had on
Plaintiffs, regarding their experiences with the military health
system and military health professionals. [United States’ Notice
of Filing Exhibits A and H in Support of its Motion to Exclude
the Expert Reports and Testimony of Drs. Spira and Keifer, filed
1/22/24 (dkt. no. 250) (“Notice of Filing Re Spira Motion”),
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Exh. A (Effects of Red Hill Jet Fuel Contamination on Military
Family Attitudes Toward Military Health System and Relationship
to Department of Defense, by James L Spira PhD, MPH, APP, dated
7/23/23) (“Spira Report”) at 1.] Dr. Spira is a licensed
psychologist, and is board-certified in Clinical Health
Psychology by the American Board of Professional Psychology. Dr.
Spira obtained his received his doctoral degree from the
University of California, Berkeley, and completed his internship
and postdoctoral fellowship at Stanford University. Dr. Spira
has served as a member of the medical school faculties at Duke
University, the University of California, San Diego, and the
University of Hawai`i. Dr. Spira has also served as the
President of the Hawai`i Psychological Association and as
President of the American Academy of Clinical Health Psychology,
among other positions. Dr. Spira also worked as a treating
psychologist for several persons who experienced water
contamination from the 2021 Red Hill fuel spill. Dr. Spira has
twenty-five years of experience working with military members
and veterans in areas including behavioral health education,
prevention, clinical intervention, and research. Id. at 1-2; see
also id. at PageID.11618-20 (portion of Biographical Sketch of
Dr. Spira). For example, Dr. Spira worked at the Naval Medical
Center in San Diego as the head of the health psychology
division, and as director of the United States Department of
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Veterans Affairs, National Center for PTSD, Pacific Islands
Division. [Id. at PageID.11619.]
Dr. Spira’s expert report consists of summaries of
interviews with five of the Plaintiffs (Natasia Freeman
(“Freeman”), Amanda Feindt (“Feindt”), Elizabeth Witt (“Witt”),
Kevin Aubart (“Aubart”), and Richelle Dietz (“Dietz”)), Dr.
Spira’s identification of common themes from the interviews, and
his conclusions. Dr. Spira’s opinions are based on these
interviews with Plaintiffs, his review of documents provided by
the United States Department of Defense (“DOD”), the Defense
Health Agency, the Centers for Disease Control and Prevention,
town hall briefings by DOD representatives, among other
documents. [Id. at 2-3, 9, 12, 14;, 16 id. at PageID.11634-11636
(Document[s] Considered by James L. Spira, PhD MPH).]
Dr. Spira opines: that, “for active-duty members,
. . . faith in leadership [– or lack thereof -] impacts
sensitization and resilience to stressors”; [id. at 24;] that
“the more one reacts to [a medical problem] with attention and
anxiety, the worse the symptoms”; [id. at 23;] that the response
to the contamination by military leadership after November 2021
led to widespread trauma; and that Plaintiffs’ fear of future
harm is reasonable under the circumstances, [id. at 25].
Dr. Spira opines that “[m]ilitary medicine is
inadequate to manage the effects of large scale disasters on the
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health of its members”; [id.;] and “the government’s response
fell short of standard of care expected to be received,” [id. at
26]. Finally, Dr. Spira concludes “families should be provided
civilian care for any future illness or symptoms related to
their exposure to jet fuel, including future medical care and
surveillance. Simply put, people should not be forced to receive
medical treatment from the same entity that made them sick in
the first place.” [Id.]
II. 	Dr. Clark
Andrew Clark, M.D. was retained by Plaintiffs to
“assess any potential psychological, developmental, or
psychiatric impacts of the fuel spill and its aftermath” to
minor Plaintiffs. See Notice of Filing Re Clark and Vargo
Motion, Exh. 1 (Psychiatric Assessment Report regarding the
Dietz Family, by Dr. Clark, dated 7/24/23) (“Clark Dietz
Report”) at 1; id., Exh. 2 (Psychiatric Assessment Report
regarding the Feindt Family, by Dr. Clark, dated 7/24/23)
(“Clark Feindt Report”) at 1; id., Exh. 3 (Psychiatric
Assessment Report regarding the Freeman Family, by Dr. Clark,
dated 7/24/23) (“Clark Freeman Report”) at 1; id., Exh. 4
(Psychiatric Assessment Report regarding the Jessup Family, by
Dr. Clark, dated 7/24/23) (“Clark Jessup Report”) at 1.
Dr. Clark is a psychiatrist, and is board-certified in child and
adolescent psychiatry by the American Board of Psychiatry and
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Neurology. [Clark Deitz Report, Exh. A (Curriculum Vitae of
Andrew B., M.D., dated 6/1/22) at 2.]
Dr. Clark opines on each of the eleven minor
Plaintiffs and concludes for many of them that the contamination
in the water contributed substantially to their mental health
difficulties, such as anxiety and trauma. See, e.g., Clark Dietz
Report at 7; Clark Feindt Report at 13-14. In forming his
opinions, Clark conducted interviews with parents and one minor
child. See Clark Jessup Report at 2; Notice of Filing Re Clark
and Vargo Motion, Exh. 5 (transcript excerpts of 10/23/23 video
deposition of Dr. Clark) (“Clark Depo.”) at 126. In forming his
opinions, Dr. Clark reviewed, among other things, medical
records, other therapy records, and academic literature. See,
e.g., Clark Dietz Report at 1-2; Clark Dietz Report, Exh. D (Dr.
Clark Reliance List for Dietz Report).
For example, Dr. Clark interviewed one of the minor
children’s parents for one hour and reviewed documents including
the Fourth Amended Complaint, [filed 6/13/23 (dkt. no. 121),]
and the minor child’s medical records and occupational therapy
records. [Clark Dietz Report at 1-2.] Dr. Clark opines that the
water contamination from the 2021 fuel spill, “in part due to
the stresses and disruptions associated with it, contributed
substantially” to the minor child’s anxiety, and placed this
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minor “at an elevated risk going forward of developing a more
severe anxiety disorder.” [Id. at 7.]
III. Dr. Vargo
Melissa Vargo, M.A., Psy.D. was retained by Plaintiffs
to provide a mental examination of adult Plaintiffs. See Notice
of Filing Re Clark and Vargo Motion, Exh. 7 (report regarding
Aubart by Dr. Vargo, dated 7/24/23) (“Vargo Aubart Report”) at
1-2. Dr. Vargo is a psychologist in private practice. [Id. at 1;
id., Exh. A (Dr. Vargo’s curriculum vitae).]
Dr. Vargo opines that the contamination of Plaintiffs’
tap water from the Red Hill fuel spill was a traumatic event to
the adult Plaintiffs she assessed. See, e.g., Vargo Aubart
Report at 6-7. Dr. Vargo bases her opinions on interviews with
those Plaintiffs, the P.T.S.D. Checklist (Civilian Version)
(“PTSD Checklist”) completed by those Plaintiffs, the Beck
Depression Inventory II and Beck Anxiety Inventory completed by
those Plaintiffs, and a review of those Plaintiffs’ medical and
psychological records that Plaintiffs’ counsel provided to her.
See, e.g., id. at 3. Dr. Vargo provided each adult Plaintiff
with a mental health diagnosis, a prognosis for that diagnosis,
and a recommendation for psychotherapy sessions to address the
Plaintiff’s mental health needs. See, e.g., id. at 6-7.
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STANDARD
Federal Rule of Evidence 702 provides that expert
opinion evidence is admissible if: (1) the witness is
sufficiently “qualified as an expert by knowledge, skill,
experience, training, or education”; (2) the witness’s
“scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a
fact in issue”; (3) the witness’s “testimony is based on
sufficient facts or data”; (4) the witness’s “testimony is the
product of reliable principles and methods”; and (5) the witness
has reliably applied the relevant principles and methods to the
facts of the case. Fed. R. Evid. 702. Under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert I”), a
trial judge is required to apply a gatekeeping role to expert
witness testimony. White v. Ford Motor Co., 312 F.3d 998, 1007
(9th Cir. 2002), opinion amended on denial of reh’g, 335 F.3d
833 (9th Cir. 2003). The Rule 702 inquiry under Daubert I,
however, “‘is a flexible one,’ and the ‘factors identified in
Daubert may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” 2 Id. (quoting Kumho
2 The factors identified in Daubert I are: methodology,
testing, peer review and publication, rates of error and control
standards, and “general acceptance” in the “relevant scientific
community.” 509 U.S. at 593-94.
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Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167
(1999)).
Preliminarily, the Court must determine if the
proposed expert is sufficiently qualified by the requisite
“knowledge, skill, experience, training, or education” on the
subject matter. Fed. R. Evid. 702; see also United States v.
Alo-Kaonohi, 635 F. Supp. 3d 1074, 1079 (D. Hawai`i 2022).
Rule 702 “‘contemplates a broad conception of expert
qualifications,’” and therefore only a “minimal foundation of
knowledge, skill, and experience [is] required in order to give
‘expert’ testimony.” Hangarter v. Provident Life & Acc. Ins.
Co., 373 F.3d 998, 1015, 1016 (9th Cir. 2004) (quoting Thomas v.
Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994))
(emphases in Hangarter). However, “[a] person qualified to give
an opinion on one subject is not necessarily qualified to opine
on others.” Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1431
(9th Cir. 1991).
To fulfil its substantive gatekeeping obligations,
courts must determine if the proffered testimony is reliable,
and if it fulfills the “fit” requirement, meaning that the
expert’s testimony “logically advances a material aspect of the
proposing party’s case.” Daubert v. Merrell Dow Pharms., Inc.,
43 F.3d 1311, 1315 (9th Cir. 1995) (“Daubert II”).
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The reliability inquiry focuses on the expert’s
“principles and methodology, not on the
conclusions that they generate.” Daubert I, 509
U.S. at 595, 113 S. Ct. 2786. The reliability
inquiry is flexible; although Daubert I lists
factors for the reliability inquiry, courts have
discretion to determine whether those factors are
reasonable measures of reliability in a
particular case. Kumho Tire, 526 U.S. at 152–53,
119 S. Ct. 1167.
Alo-Kaonohi, 635 F. Supp. 3d at 1079. When evidence is not
scientific, and “depends heavily on the knowledge and experience
of the expert, rather than the methodology or theory behind it,”
the Daubert I factors are not reasonable indicia of reliability.
United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000)
(citing Kumho Tire, 119 S. Ct. at 1175) (holding that the
district court did not abuse its discretion when it assessed the
expert testimony without considering the Daubert I factors).
“[A] trial court . . . has broad latitude in determining whether
an expert’s testimony is reliable” as well as in deciding how to
determine whether that testimony is reliable. Hangarter, 373
F.3d at 1017 (citations omitted).
For evidence to be relevant, it must meet the “fit”
requirement. However,
the “fit” requirement is not merely a reiteration
of the relevancy standards in Federal Rules of
Evidence 401–403. Because “[e]xpert evidence can
be both powerful and quite misleading [given] the
difficulty in evaluating it,” “the judge in
weighing possible prejudice against probative
force under Rule 403 of the [Federal Rules of
Evidence] exercises more control over experts
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than over lay witnesses.” [Daubert I, 509 U.S.]
at 595, 113 S. Ct. 2786 (citation omitted).
Courts must therefore exclude proffered expert
testimony pursuant to Rules 702 and 403 unless
they are convinced that the testimony speaks
clearly and directly to a disputed issue and that
it will not mislead the jury. Daubert II, 43 F.3d
at 1321 n.17 (discussing scientific expert
evidence, specifically). And to be admissible,
“the subject matter [of the testimony] at issue
must be beyond the common knowledge of the
average layman.” United States v. Finley, 301
F.3d 1000, 1007 (9th Cir. 2002); United States v.
Hanna, 293 F.3d 1080, 1086 (9th Cir. 2002).
Alo-Kaonohi, 635 F. Supp. 3d at 1079-80 (some alterations in
Alo-Kaonohi) (some citations omitted). “Expert opinion testimony
is relevant if the knowledge underlying it has a valid
connection to the pertinent inquiry.” Primiano v. Cook, 598 F.3d
558, 565 (9th Cir. 2010) (quotation marks and citation omitted).
District courts have wide discretion when acting as a
gatekeeper for the admissibility of expert testimony. Kumho
Tire, 526 U.S. at 151–52. “[S]haky but admissible” expert
testimony is best attacked by cross examination, contrary
evidence, and attention to the burden of proof, not by
exclusion. Daubert I, 509 U.S. at 596. Further, the Daubert
gatekeeping function of courts is intended to protect juries,
making the inquiry less relevant and the barriers less stringent
in a bench trial. See United States v. Flores, 901 F.3d 1150,
1165 (9th Cir. 2018).
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DISCUSSION
I. 	Dr. Spira
Defendant argues that Dr. Spira’s opinions go beyond
the scope of his expertise, that Dr. Spira’s opinions on the
medical standard of care should be excluded, and that Dr. Spira
did not reliably apply the “grounded theory” methodology.
Defendant contends Dr. Spira simply accepted plaintiffs’
subjective experiences as true. [Spira Motion, Mem. in Supp. at
10-20.]
Defendant is correct that many of Dr. Spira’s opinions
extend beyond the scope of his expertise. Plaintiffs have failed
to demonstrate that Dr. Spira has the requisite knowledge,
skill, experience, training or education to testify as to the
question of whether the military medical system breached its
standard of care, and as to the more general inadequacies of
military medicine. See Spira Report at 25-26. While Dr. Spira
has experience as a psychologist who has worked at the Navy
Medical Center, and in the departments of psychiatry and
medicine at medical schools, among other things, see Spira
Report at PageID.11619 (portion of Biographical Sketch of Dr.
Spira), Dr. Spira is not a licensed medical physician, has
“never prescribed or treated as a physician,” has never
“published any articles on the standard of care a treating
physician should employ when confronted with somebody who
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presents with possible environmental contamination exposure,”
and is not a toxicologist. See Spira Motion, Decl. of Alanna
Horan (“Horan Decl.”) Exh. B (transcript excerpts of 10/27/23
video deposition of Dr. Spira) (“Spira Depo.”) at 24-26. Dr.
Spira’s experience as a psychologist who is familiar with
military medicine is insufficient to qualify him as an expert on
military medicine. See Krizek v. Queen’s Med. Ctr., CIV. NO. 18-
00293 JMS-WRP, 2020 WL 5633848, at *5-7 (D. Hawai`i Sept. 21,
2020) (finding proposed expert not qualified to opine on the
standard of care in emergency medicine, where the proposed
expert was an intensive care unit physician, but not an
emergency room physician).
Second, Dr. Spira may not testify as to the question
of whether Plaintiffs’ fear of future harm was reasonable. Under
Hawai`i law, the issue of whether a plaintiff has sustained
emotional distress is within the discretion of the trier of fact
and medical testimony is not a prerequisite for recovery for
emotional distress. Campbell v. Animal Quarantine Station, 63
Haw. 557, 564, 632 P.2d 1066, 1070-71 (1981). An expert witness
may testify when “scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue.” Fed. R. Evid. 702(a). The
Court concludes that specialized knowledge is not necessary for
the Court to evaluate the issue of whether Plaintiffs’ fear of
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developing long-term illnesses or effects in the future is
reasonable and Dr. Spira’s opinion on this issue is not relevant
and thus not admissible.
However, Dr. Spira is qualified to testify regarding
the trauma that Plaintiffs suffered due to institutional
betrayal that is included within his expert report, including
his opinion that losing faith in leadership impacts
sensitization and resilience to stressors. See Spira Report at
24. These opinions are not mere regurgitations of Plaintiff’s
opinions as Defendant contends. The Court finds that Dr. Spira’s
opinions regarding Plaintiffs’ trauma and the psychological
impact of institutional betrayal are founded on sufficient facts
or data to render these opinions “more than subjective belief or
unsupported speculation.” See Daubert I, 509 U.S. at 590.
The Court is unpersuaded by Defendant’s argument that
Dr. Spira’s opinion is unreliable because he did not disclose
data regarding his private patients that he relied upon in his
grounded theory methodology. [Spira Motion, Mem. in Supp. at 17-
18.] Dr. Spira may use his experience, including his experience
with private patients, to inform his opinions. See, e.g.,
Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1198 (9th Cir.
2014) (“there is nothing wrong with a doctor relying on
extensive clinical experience when making a differential
diagnosis”). Further, Defendant raises flaws with Dr. Spira’s
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interview questions being biased. See Spira Motion, Mem. in
Supp. at 18-19. However, there is no indication that Dr. Spira’s
questions to Plaintiffs were biased in favor of a predetermined
hypothesis, or were conducted in any manner other than an open-
minded approach. See, e.g., Horan Decl., Exh. H (emails between
Dr. Spira and Amanda Feindt). These alleged flaws go to the
weight of Dr. Spira’s opinions, not admissibility. “Imperfect
application of methodology may not render expert testimony
unreliable because a minor flaw in an expert’s reasoning or a
slight modification of an otherwise reliable method does not
render expert testimony inadmissible.” Hardeman v. Monsanto Co.,
997 F.3d 941, 962 (9th Cir. 2021) (brackets, quotation marks,
and citation omitted). Challenges to his opinion will be left to
cross examination, contrary evidence, and attention to the
burden of proof at trial.
Dr. Spira’s opinions regarding Plaintiffs’ trauma and
institutional betrayal are pertinent to Plaintiffs’ emotional
distress damages and will aid the trier of fact. Accordingly,
Dr. Spira’s opinions regarding Plaintiffs’ trauma and
institutional betrayal are admissible under Rule 702.
II. 	Dr. Clark
It is clear Dr. Clark has the requisite experience and
training in the field of psychiatry, and that his specialized
knowledge in psychiatry will aid the trier of fact. Defendant’s
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objection to Dr. Clark’s opinion testimony is on reliability
grounds. Defendant argues Dr. Clark’s opinions recommending
treatment are unreliable because he spoke to parents rather than
to the children themselves – with the exception of conducting
one interview with a minor. Further, the interviews he did
conduct were shorter than those he conducts in his clinical
practice. [Clark and Vargo Motion, Mem. in Supp. at 3-5.]
Defendant also contends Dr. Clark’s causation opinions did not
use reliable methodology and did not have adequate facts and
data because he did not interview the children themselves (with
one exception), the parents interviewed were interested in the
outcome of the case, he did not review all available records,
and he disregarded other sources of trauma. [Id. at 6-10.] The
foregoing arguments are appropriately raised on cross-
examination, and do not warrant exclusion of Dr. Clark’s
opinions.
First, regarding Dr. Clark primarily interviewing
parents:
Conclusions about persons who have not been
directly examined may be drawn on the basis of
available records, including medical, mental
health, police, educational, armed services, and
other records; information from informants who
have been or are in contact with the person,
which may derive from interviews by the expert,
prior testimony, depositions, police reports, and
other sources . . . . Although it may be possible
to draw valid conclusions on the basis of such
data, conclusions generally are more limited and
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have a lesser degree of certainty than when a
direct evaluation has taken place. The ethics
statements of the major forensic psychiatry and
forensic psychology organizations offer words of
caution about such testimony . . . .
Federal Judicial Center, Reference Manual on Scientific Evidence
(3d ed. 2011), Paul S. Appelbaum, Reference Guide on Mental
Health Evidence at 878, available at 2011 WL 7724265, at *40.
Dr. Clark testified that in his clinical practice, his typical
procedure when seeing a new child patient is to interview the
child’s parents, interview or interact with the child, and then
make his assessments, findings, and recommendations. [Clark
Depo. at 58-59.] Therefore, while it may be the better practice
to interview minor children personally, rather than just
interviewing their parents, doing so is not a requirement of
admissibility. See United States v. Vallejo, 237 F.3d 1008, 1021
(9th Cir. 2001) (“[T]he district court did not rely upon, nor
does the government cite, any cases which require a
psychological or medical expert’s testimony to be based on a
personal physical examination. In fact, the Supreme Court has
explicitly held to the contrary. In Daubert, the Court stated
that ‘an expert is permitted wide latitude to offer opinions,
including those that are not based on firsthand knowledge or
observation.’” (quoting Daubert, 509 U.S. at 592, 113 S. Ct.
2786)). Dr. Clark had a sufficient factual basis to render his
opinions, and the fact that he did not interview most of the
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minor plaintiffs is an issue of weight rather than
admissibility.
Similarly, Dr. Clark’s alleged disregard of other
possible sources of trauma and failure to review all medical
records also go to weight rather than admissibly. See Primiano,
598 F.3d at 565 (“Shaky but admissible evidence is to be
attacked by cross examination, contrary evidence, and attention
to the burden of proof, not exclusion.”); see also Alaska Rent–
A–Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th
Cir. 2013) (stating the district judge should screen “unreliable
nonsense opinions, but not exclude opinions merely because they
are impeachable”).
Further, Dr. Clark may recommend treatment based on
his experience as a psychiatrist. Dr. Clark’s experience in
child psychiatry allows him to opine on what treatment will be
needed for the Bellwether Plaintiffs who are minors. See Kumho
Tire, 526 U.S. at 156 (“[N]o one denies that an expert might
draw a conclusion from a set of observations based on extensive
and specialized experience.”); id. at 150 (“In [some] cases, the
relevant reliability concerns may focus upon personal knowledge
or experience”); see also Fed. R. Evid. 703 (“An expert may base
an opinion on facts or data in the case that the expert has been
made aware of or personally observed. If experts in the
particular field would reasonably rely on those kinds of facts
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or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.”). Further,
Dr. Clark’s admission that it is difficult to predict how a
person could respond to therapy and the difficulty in estimating
how many therapy sessions a plaintiff would need in the future
do not make his testimony inadmissible. See Clark Depo. at 198.
“Lack of certainty is not, for a qualified expert, the same
thing as guesswork. . . . [I]t is reliable if the knowledge
underlying it has a reliable basis in the knowledge and
experience of the relevant discipline.” Primiano, 598 F.3d at
565; see also id. at 567 (“physicians must use their knowledge
and experience as a basis for weighing known factors along with
the inevitable uncertainties to make a sound judgment” (brackets
and quotation marks omitted)).
Accordingly, Dr. Clark’s opinions assessing the
psychological and psychiatric impacts of the fuel spill and its
aftermath on minor Plaintiffs are admissible.
III. Dr. Vargo
It is clear that Dr. Vargo has the requisite
experience and training in the field of psychology. Defendant
objects to Dr. Vargo’s opinion testimony on reliability grounds.
Specifically, Defendant argues that Dr. Vargo’s opinions are
based upon unreliable methodology and inadequate facts or data
because: (1) Dr. Vargo only provided the symptomology portion of
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the PTSD Checklist to all but one of the Plaintiffs she opined
on, rendering the test unreliable; and (2) Dr. Vargo did not
gather facts about alternative causes, meaning there are
insufficient facts or data to reach Dr. Vargo’s conclusions.
Therefore, Defendant contends, Dr. Vargo “cherry-picked” her
data. Additionally, Defendant contends Dr. Vargo’s opinions are
ones of correlation not causation. [Clark and Vargo Motion, Mem.
in Supp. at 13-20.]
First, regardless of the causation terminology that
Dr. Vargo uses, her opinions regarding the same are admissible,
and it is up to the factfinder to determine whether causation
exists. Under Hawai`i law, “[w]hen causation of the injury is a
medical issue, as it is here, [the] matter does not turn on the
use of a particular form of words by the physicians in giving
their testimony, since it is for the trier of facts, not the
medical witnesses, to make a legal determination of the question
of causation.” Bachran v. Morishige, 52 Haw. 61, 67-68, 469 P.2d
808, 812 (1970) (internal quotation marks omitted).
Second, the Court finds that Dr. Vargo’s opinions are
founded on sufficient facts or data to render these opinions
“more than subjective belief or unsupported speculation.” See
Daubert I, 509 U.S. at 590. Dr. Vargo had access to Plaintiffs’
medical records and Plaintiffs’ fact sheets, and later had
access to Plaintiffs’ deposition transcripts. See, e.g., Notice
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of Filing Re Clark and Vargo Motion, Exh. 10 (report regarding
Freeman by Dr. Vargo, dated 7/24/23) (“Vargo Freeman Report”) at
3 (listing the medical records reviewed); Opp. to Clark and
Vargo Motion at 19 (stating Dr. Vargo had access to Plaintiff
fact sheets and depositions and pointing out that Dr. Vargo did
not modify or revise her opinions in light of the deposition
testimony). Dr. Vargo’s methodology of administering the
symptom-only portion of the PTSD Checklist and interviewing
Plaintiffs appears to be an accepted practice in the field of
psychology. See Clark and Vargo Motion, Decl. of Lucas R. White
(“White Decl.”), Exh. 21 (National Guide for PTSD, Using the
PTSD Checklist for DSM-5 (PCL-5)) at 1 (“The PCL-5 should not be
used as a stand-alone diagnostic tool. When considering a
diagnosis, the clinician will still need to use clinical
interviewing skills, and a recommended structured interview
. . . to determine a diagnosis.”); Opp. to Clark and Vargo
Motion, Decl. of Sara Couch in Supp. of Opp. (“Couch Decl.”),
Exh. F (transcript excerpts of 11/17/23 video deposition of Eric
Smith, Ph.D. 3 ) (“Smith Depo.”) at 142 (testimony regarding the
3 Dr. Smith is an expert retained by Defendant, and is a
clinical and forensic psychologist. Dr. Smith opined on whether
certain Plaintiffs, including minor Plaintiffs, experienced
psychological injuries due to their exposure to contaminated
drinking water from the November 2021 Red Hill fuel spill, and
the nature and scope of the mental health therapies said
Plaintiff should receive. See, e.g., White Decl., Exh. 6 (report
(. . . continued)
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PCL-5). Dr. Vargo’s lack of awareness of other trauma suffered
by Plaintiffs or her failure to ask about such traumas during
her interviews with Plaintiffs is appropriately addressed on
cross-examination, and does not affect admissibility. See
Primiano, 598 F.3d at 565.
Accordingly, Dr. Vargo’s opinions regarding the adult
Plaintiffs’ experiences of trauma stemming from the
contamination of Plaintiffs’ water due to the Red Hill fuel
spill are admissible. Challenges to her opinion will be left to
cross examination, contrary evidence, and attention to the
burden of proof at trial.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to
Exclude the Expert Reports and Testimony of Drs. Spira and
Keifer, filed January 16, 2024, is GRANTED IN PART AND DENIED IN
PART. The Sprira Motion is DENIED as to Dr. Spira’s opinions
regarding Plaintiffs’ trauma and the psychological impact of
institutional betrayal. The Spira Motion is GRANTED insofar as
Dr. Spira’s other opinions are excluded. Defendant’s Motion in
Limine to Exclude Drs. Clark and Vargo, filed January 16, 2024,
is DENIED in its entirety.
regarding Sheena Jessup and her children by Dr. Smith, dated
11/3/23) at 1.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 8, 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 MOTION TO EXCLUDE THE EXPERT REPORTS AND TESTIMONY
OF DRS. SPIRA AND KEIFER, AND DENYING DEFENDANT’S MOTION IN
LIMINE TO EXCLUDE DRS. CLARK AND VARGO
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