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Suzuki v. Helicopter Consultants of Maui, Inc.

United States District Court, D. Hawaii

October 26, 2016

VERNON SUZUKI, Plaintiff,
v.
HELICOPTER CONSULTANTS OF MAUI, INC., a Hawaii Corporation, doing business as BLUE HAWAIIAN HELICOPTERS; ET AL., Defendants.

          AMENDED ORDER DENYING PLAINTIFF'S MOTION IN LIMINE NO. 9 AS TO THE FEBRUARY 7, 2012 “NO FURTHER ACTION” LETTER, ECF NO. 172 [[1]]

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On 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, 2016.

         In his 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.

         Based 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.

         II. BACKGROUND

         The 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.

         By its 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 ...

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