Damages are awarded in first Red Hill lawsuit

Hawaii’s U.S. District Court has awarded damages to 17 people affected by the November 2021 Red Hill water crisis.

In a long-awaited preliminary decision dated Wednesday, U.S. District Judge Leslie Koba­yashi ordered the government to pay $682,258 to the plaintiffs to compensate them for damages and, in the case of some clients, for future medical care related to exposure to jet fuel that tainted the Navy’s Oahu water system, which serves 93,000 people, including military families and civilians living in former military areas.

The 17 “bellwether cases” were selected from more than 7,500 cases connected to the Red Hill fuel spill that are awaiting resolution. According to a statement released by the plaintiffs’ attorneys, two other related cases — one for military service members and one for more military families and civilians — also are pending in Hawaii’s federal court.

In the statement, the attorneys said that “in the ruling, Judge Kobayashi found for the families on important legal issues in the case, including that the contamination reached all neighborhoods on the Navy water line and that the families’ health claims were not just psychosomatic, as the government had claimed.”

The case, brought against the government under the Federal Tort Claims Act, is believed to be the first successful case of its kind against the U.S. government involving military contamination. Kristina Baehr, one of the plaintiffs’ attorneys, said in a statement that “our military family and civilian clients affected by the Red Hill contamination catastrophe have prevailed against all odds against the U.S. government which was finally forced to concede its liability.”

Army Maj. Mandy Feindt, whose husband, Patrick Feindt, was among the plaintiffs and was herself exposed to contaminated water while they lived on Ford Island, told the Honolulu Star- Advertiser, “No amount of money will ever change the lasting impact of institutional betrayal felt by my family, my brothers and sisters in arms and thousands of innocent civilians who were all treated like collateral damage after the Navy knowingly poisoned them and contaminated Hawaii’s most precious resource: its water.”

The Feindt family was among those that federal lawyers argued was never exposed to the fuel, arguing the fuel never reached Ford Island — a claim hotly disputed by water system experts brought in by the plaintiffs’ legal team. Feindt said that “Judge Kobayashi’s ruling holds the Navy accountable for the harm they caused — something the (Department of Defense), the EPA and our Hawaii congressional delegation has refused to do since the start of the crisis.”

“These families can be proud that they helped prove to the world what truly happened when the Navy poisoned the water supply near Pearl Harbor and sickened so many,” said Baehr. “The Court rejected the Government’s argument that thousands of our clients were just psychosomatic and that there was not enough fuel to make anyone sick. While the damages awarded by the court are disappointing, this is a step forward in our clients’ pursuit of justice, and we continue to review options to resolve the remaining 7,500-plus cases.”

The Navy’s Red Hill fuel storage facility contained the military’s strategic fuel reserve for Pacific operations for eight decades, storing millions of gallons of fuel for ships and aircraft. The World War II-era facility was built underground to shield it from potential enemy attacks and sat just 100 feet above a critical aquifer most of Oahu relies on for clean water. The Navy’s main well that supported its water system, the Red Hill Shaft, is also located in the facility.

The Navy for years insisted the facility was safe and that it was critical for supporting operations in the Pacific. But since the November 2021 spill, subsequent investigations and documents released by the Navy revealed that the aging facility in reality had severe problems with maintenance, record keeping and safety and was costing millions of dollars to conduct constant repairs required to keep it running.

After the 2021 spill the military had to conduct a series of renovations and upgrades in order to even safely extract the millions of gallons of fuel inside. It wasn’t until March 2023 that the task force charged with removing the fuel actually stood down operation. The military ultimately took fuel from the facility and redistributed it to smaller facilities and tanker ships spread across the Pacific — a strategy the military now says is superior and allows greater flexibility.

During the trial, which took place in April and May 2024, the U.S. Department of Justice was unyielding in its defense of the Navy’s handling of the crisis. Though it acknowledged that the Navy held some fault for the fuel entering the system, it asserted that it was not enough fuel to make anyone sick and that several plaintiffs weren’t affected at all.

In the government’s opening statement during the trial, attorney Rosemary Yogia­veetil said that the “United States followed the science and took responsibility starting that November … (and) the Navy quickly responded to the emergency. It worked with regulators to keep the public informed. … They provided whatever answers they could, based on the information that they had and the scientific data available at the time.”

The federal attorneys did not reference findings by a U.S. Pacific Fleet investigation into the spill that found that when Navy officials first became aware of the Nov. 21 spill, they chose not to inform their superiors or state officials. In the following days, as families reported smelling fuel in the water, the state Department of Health put out a health advisory. Navy officials at first denied it and asked the DOH to rescind the advisory before eventually acknowledging that the water was, in fact, contaminated.

In her court decision, Kobayashi concluded that while there is no definitive way to know how much fuel actually entered the water system or how much each person was exposed to, the “actual dose to which each individual plaintiff was exposed is not required to be proved where there is unambiguous and credible evidence that the United States breached its duty of care … in short, it is reasonably inferred that the dose was in an amount sufficient to cause the ill effects reported within days of the Fuel Release.”

However, Kobayashi awarded special damages for future medical expenses to only four of the plaintiffs. Though Kobayashi agreed many of the ailments and medical issues the plaintiffs reported may have been the result of fuel exposure, in several cases there was not definitive proof. There has been relatively little research on the effects of ingesting jet fuel, as it’s a very rare occurrence and there are few ethical ways to conduct such studies.

“The Court is sympathetic to Plaintiffs and their families but is nevertheless bound to hold Plaintiffs to their legal obligation to provide evidence proving by a preponderance that the Fuel Release is a legal cause of each injury,” Kobayashi wrote. “Where the Court has found that Plaintiffs have failed to demonstrate credible evidence, it is not concluding that the medical conditions or ailments do not exist. Rather, its findings reflect that correlation does not carry Plaintiffs’ legal burden of proving causation.”