United States District Court, D. Hawaii
ORDER DENYING PLAINTIFF'S MOTION IN LIMINE NO. 9
AS TO THE FEBRUARY 7, 2012 “NO FURTHER ACTION”
LETTER, ECF NO. 172
Michael Seabright, Chief United States District Judge.
November 20, 2011, a helicopter crashed on the Island of
Molokai, killing five people, and destroying the helicopter.
Plaintiff Vernon Suzuki (“Plaintiff”) brought
this suit seeking damages and injunctive relief alleging that
Defendant Helicopter Consultants of Maui, Inc.
(“Defendant”) failed to remediate the crash site
properly. ECF No. 1. Trial is set to begin on November 1,
Motion in Limine No. 9, Plaintiff seeks to “preclude
evidence or argument regarding Defendant's receipt of a
‘no further action' letter dated February 7, 2012
from the State of Hawaii, Department of Health.” ECF
No. 172. The court heard the matter on October 18, 2016,
after considering memoranda in support and opposition, as
well as substantial supplemental briefing. See ECF
Nos. 172, 203, 227, 232, 248, 250.
on the following, the Motion is DENIED. The February 7, 2012
“no further action” letter (“the
Letter”) is admissible under Federal Rules of Evidence
803(8)(A)(iii) & (B), and thus the court will allow
evidence or argument regarding its receipt by Defendant. By
this ruling, however, the court is not precluding Plaintiff
from challenging, if appropriate, the basis of the Letter or
its meaning and effect, if any, on the issues in this case.
Letter, issued by the State of Hawaii, Department of
Health's (“DOH”) Hazard Evaluation and
Emergency Response Office (“HEER”), was addressed
to Hawaii International Environmental Services, Inc.
(“HIES”) on behalf of Defendant. ECF No. 203-2.
The Letter begins with the conclusion that:
[The HEER] has reviewed the Letter Report: Soil Sampling
Activities, Blue Hawaiian Helicopter Impact location,
Molokai, Hawaii, dated January 16, 2012. Based on our
review of the subject document, [the DOH] has determined that
No Further Action is required at this site.
ECF No. 203-2, Def.'s Ex. A at PageID 3897. In substance,
the Letter provides:
According to the [January 16, 2012] report, soil samples
collected at the site showed residual contamination including
polynuclear aromatic hydrocarbons (PAHs) detected at maximum
concentrations of 0.9 mg/kg (below State Unrestricted
Environmental Action Levels (EALs)) and total petroleum
hydrocarbons (TPHs) detected at maximum concentrations of 700
mg/kg (above State Unrestricted EALs of 500 mg/kg for TPHs).
The TPH exceedence is not significant considering the small
amount of fuel released and the absence of grossly impacted
soil at the site. This information indicates that the
residual contaminants do not pose a significant hazard risk
to human health or the environment and, therefore, the NFA
determination criteria have been satisfied.
Id. It cautions: “Please be aware that should
new information concerning on-site contamination become
available, the HEER Office will reevaluate the site to
determine if a response action is appropriate.”
Id. at PageID 3898.
terms, the Letter's conclusions are based on a January
16, 2012 “letter report” from HIES directed to
Mr. John Lacy (a former counsel for Defendant) that begins:
This letter report documents activities related to the
collection of soil samples from the soils associated with the
known impact location of a November 10, 2011, Blue Hawaiian
helicopter crash, located within TMK ...