ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT NO. 1 AND NO. 2

LESLIE E. KOBAYASHI, District Judge.

On May 22, 2019, Defendants Ohana Military Communities, LLC ("Ohana") and Forest City Residential Management, LLC ("Forest City" and collectively, "Defendants") filed their: Motion for Summary Judgment No. 1 based upon Plaintiffs' Inability to Prove a Required Element of their Claims ("Motion 1"); and Motion for Summary Judgment No. 2 based upon Plaintiffs Inability to Prove Damages ("Motion 2").1 [Dkt. nos. 150, 152.] On July 1, 2019, Plaintiffs Kenneth Lake, Crystal Lake, Harold Bean, Melinda Bean, Kyle Pahona, Timothy Moseley, Ashley Moseley, Ryan Wilson, and Heather Wilson ("Plaintiffs") filed their memorandum in opposition to Motion No. 1 ("Opposition 1") and their memorandum in opposition to Motion No. 2 ("Opposition 2"). [Dkt. nos. 168, 166.] On July 8, 2019, Defendants filed their reply in support of Motion 1 and their reply in support of Motion 2. [Dkt. nos. 172, 173.]

Motion 1 and Motion 2 ("Motions") came on for hearing on July 19, 2019. On August 8, 2019, an entering order was issued informing the parties of the Court's rulings on the Motions. [Dkt. no. 181.] The instant Order supersedes that entering order. Defendants' Motions are hereby granted in part and denied in part for the reasons set forth below. Defendants Motions are granted insofar as summary judgment is granted as to all claims except Plaintiffs Kenneth Lake, Crystal Lake, Kyle Pahona, Ryan Wilson, and Heather Wilson's claims asserting that construction dust, in general and without regard to the contents of the dust, constituted a nuisance.

BACKGROUND

Plaintiffs are former residents of housing at Kaneohe Marine Corp Base Hawaii ("MCBH").2 [First Amended Complaint, filed 9/20/17 (dkt. no. 75), at ¶¶ 6-10; Answer to Pltfs.' First Amended Complaint [Doc. 75] ("Answer"), filed 6/29/18 (dkt. no. 99), at ¶¶ 6-10 (admitting that they were former residents).] The crux of Plaintiffs' claims is that the soil in at least some of the residential neighborhoods at MCBH is contaminated, and Defendants failed to perform adequate remediation measures and failed to disclose the contamination to Plaintiffs. The claims that remain in this case are: breach of contract against Ohana ("Count I"); breach of the implied warranty of habitability against Ohana ("Count II"); a Haw. Rev. Stat. Chapter 521 claim against Defendants ("Count III");3 a negligent failure to warn claim against Defendants ("Count V"); a negligent infliction of emotional distress ("NIED") claim and an intentional infliction of emotional distress ("IIED") claim against Defendants ("Count VI"); a fraud claim against Defendants ("Count VII"); a negligent misrepresentation claim against Defendants ("Count VIII"); and a nuisance claim against Defendants ("Count XI").4

I. Relevant Facts

A. OCPs in General

The parties agree that organochlorinated pesticides ("OCPs") were commonly used in Hawai`i. [Concise statement of facts in supp. of Motion 1 ("Motion 1 CSOF"), filed 5/22/19 (dkt. no. 151) at ¶ 1; concise statement of facts in supp. of Opp. 1 ("Opp. 1 CSOF"), filed 7/1/19 (dkt. no. 169), at ¶ 1 (admitting that portion of Defs.' ¶ 1).] OCPs

[Motion 1 CSOF, Decl. of Randall C. Whattoff ("Whattoff Decl. 1"), Exh. 43 ("Past Use of Chlordane, Dieldrin, and other Organochlorine Pesticides for Termite Control in Hawai`i: Safe Management Practices Around Treated Foundations or During Building Demolition," by the Hawai`i Department of Health ("HDOH"), Hazard Evaluation and Emergency Response Office ("HEER"), dated September 2011) at 1.]

The United States Department of Health and Human Services ("USDOH"), Public Health Service, Agency for Toxic Substances and Disease Registry, has stated that "[e]veryone in the United States has been exposed to low levels of chlordane" and "the ban on chlordane did not eliminate it from your environment, and some of your opportunities for exposure to chlordane continue." [Whattoff Decl. 1, Exh. 42 (excerpts of Toxicological Profile for Chlordane, dated May 1994) at 3.]

[Id. at 3-4 (emphasis added).] In Hawai`i,

[Whattoff Decl. 1, Exh. 39 (App'x D to the City and County of Honolulu's Application for Variance Related to Sand Island Wastewater Treatment Plant) at D-1 to D-2.]

HDOH uses a two-tiered system to analyze the presence of OCPs at a site. [Motion 1 CSOF at ¶ 2; Opp. 1 CSOF at ¶ 2 (admitting that portion of Defs.' ¶ 2).]

[Whattoff Decl. 1, Exh. 44 (Evaluation of Envtl. Hazards at Sites with Contaminated Soil & Groundwater, Vol. 1: User's Guide, Hawai`i Ed., by HDOH Envtl. Mgmt. Div., dated Fall 2011, revised January 2012) at pg. 2-1 (emphasis added).] Where a more detailed evaluation is necessary, the specific site should be discussed with HDOH. [Id. at pg. 1-10.] A site-specific evaluation is done, and Tier 2 EALs are created. [Id. at pgs. 3-1 to 3-12.]

B. MCBH Housing

MCBH includes housing for more than 2,000 families of Marines. MCBH currently has thirteen residential neighborhoods. [Motion 1 CSOF, Decl. of Dennis Poma ("Poma Decl.") at ¶¶ 10-11.5] They are:

[Id. at ¶¶ 11.a-m.] Pa Honua II was demolished and rebuilt as part of the military construction ("MILCON") program. [Id. at ¶ 20.] Hana Like, Hawaii Loa, Kaluapuni, Mokapu Court, Nani Ulupau, and Pa Honua I were also part of the MILCON program. [Motion 1 CSOF, Decl. of Chris Waldron ("Waldron Decl.") at ¶ 12(a).6] The other neighborhoods were redeveloped by Ohana through a Public-Private Venture ("PPV"). [Waldron Decl., Exh. 30 (Marine Corps Base Hawaii: MILCON Housing Projects Pesticide Soil Management Fact Sheet, dated May 2014) at 1.]

Ohana leases real property at MCBH, and Forest City manages the property on Ohana's behalf. [First Amended Complaint at ¶ 13; Answer at ¶ 13 (admitting those portions of Pltfs.' ¶ 13).]

Plaintiffs lived in the following MCBH neighborhoods:

[Poma Decl. at ¶¶ 16, 20, 22, 23, 26, 27, 30, 32.] According to the First Amended Complaint: Harold Bean and Melinda Bean ("the Beans") lived in the Hawaii Loa neighborhood from January 2010 to January 2012; [First Amended Complaint at ¶ 7;] Timothy Moseley and Ashley Moseley ("the Moseleys") lived in the Mololani neighborhood from July 2008 to June 2009; [id. at ¶ 9.a;] the Moseleys lived in the Pa Honua II neighborhood from March 2012 to November 2012; [id. at ¶ 9.c;] and Ryan Wilson and Heather Wilson ("the Wilsons") lived in the Hawaii Loa neighborhood from 2006 to 2015, [id. at ¶ 10]. Defendants admitted these allegations from Plaintiffs' paragraphs 7, 9.a, and 10, [Answer at ¶¶ 7, 9, 10,] but denied the allegation from Plaintiffs' paragraph 9.c because Defendants were "without knowledge or information sufficient to form a belief as to [its] truth," [Answer at ¶ 9].

Forest City's Community Handbook — Marine Corps Neighborhoods ("Community Handbook") states:

[Opp. 1 CSOF, Decl. of Kyle Smith ("Smith Decl. 1"), Exh. 8 (Community Handbook) at 12.] The Community Handbook is incorporated as part of Plaintiffs' MCBH leases. [Concise statement of facts in supp. of Motion 2 ("Motion 2 CSOF"), filed 5/22/19 (dkt. no. 146), Decl. of Randall C. Whattoff ("Whattoff Decl. 2"), Exh. T (Kyle Pahona's Lease Agreement for 11/13/13 to 5/31/14 ("Pahona Lease")) at OHANA-FCRM 016512.7]

C. OCPs at MCBH

1. In General

An Environmental Baseline Survey for Public Private Venture, dated August 2006, by Environmental Science International for the Department of the Navy, Commander, Pacific Division, Naval Facilities Engineering Command ("EBS"),8 stated: "Pesticides/Herbicides may be present in the soil in all neighborhoods. These were legal applications and do not require remediation (Category 1); however, future construction that may disturb such soils may require environmental, as well as safety and health, controls." [Smith Decl. 1, Exh. 1 (excerpts of EBS) at ES-2.]

Ohana established Tier 2 EALs for MCBH. [Motion 1 CSOF at ¶ 4; Opp. 1 CSOF at ¶ 4 (admitting that portion of Defs.' ¶ 4); Poma Decl., Exh. 23 (Final Pesticide Soils Management Plan, Ohana Military Cmtys., LLC Public-Private Venture Housing-Hawaii, prepared by Parsons, dated Feb. 2007 ("2007 PSMP")) at 7-20.] The HDOH, HEER Office issued a concurrence letter for the 2007 PSMP. [Poma Decl., Exh. 27 (letter dated 3/23/07, to Michael B. Phelps, P.E., Senior Project Manager, PARSONS, from John Peard, Project Manager, HDOH ("Concurrence Letter")).]

Mr. Poma testified that the PSMP applies to all MCBH neighborhoods. [Smith Decl. 1, Exh. 2 (excerpts of trans. of 1/7/19 depo. of Dennis S. Poma, P.E. ("Poma Depo.")) at 144.] The 2007 PSMP states:

[Poma Decl., Exh. 23 (2007 PSMP) at 10 (some brackets in original).] The 2007 PSMP also states:

[Id. at 21.]

The PSMP was updated in February 2008 ("2008 PSMP") and July 2013 ("2013 PSMP"). [Poma Decl., Exh. 24 (2008 PSMP), Exh. 25 (2013 PSMP).] The 2007 PSMP and other documents show that there were no Tier 2 exceedances in any common areas of the MCBH neighborhoods. Poma Decl., Exh. 23 (2007 PSMP) at 17 (Table 4);9 see also Poma Decl. at ¶¶ 47-49 (citing Poma Decl., Exh. 7 (Phase 2 Envtl. Site Assessment, Mololani Marine Corps Base Hawaii Family Housing Area, by Parsons, dated 10/1/07 ("Mololani Phase II ESA")) at 13; Exh. 10 (Phase 2 Envtl. Site Assessment, Ulupau Central/South Marine Corps Base Hawaii Family Housing Area, by Parsons, dated 10/1/07 ("Ulupau Phase II ESA")) at 3; Exh. 13 (Phase II Envtl. Site Assessment, Manning Court (Waikulu) Marine Corps Base Hawaii Family Housing Area, by Parsons, dated April 2007 ("Manning Court Phase II ESA")) at 14; Exh. 14 (Phase II Envtl. Site Assessment, Rainbow (Waikulu) Marine Corps Base Hawaii Family Housing Area, by Parsons, dated February 2007 ("Rainbow Phase II ESA")) at 16; Exh. 15 (Final Phase II Envtl. Site Assessment, NCO Row (Waikulu) Marine Family Housing Area, by Parsons, dated September 2006 ("NCO Row Phase II ESA")) at 12)).

After the MCBH Tier 2 EALs were established in 2007, HDOH revised its Tier 1 EALs. [Poma Decl. at ¶ 11.g.] Thus, while 2007 testing reflected that some of the Mololani homes had OCPs above Tier 2 EALs, all of the results that constituted Tier 2 exceedances in 2007 "are at or below the current Tier 1 Environmental Action Levels." [Id. at ¶ 11.g & n.8 (citing Poma Decl., Exh. 7 (Mololani Phase II ESA) at Figure 4 (OHANA-FCRM008212); HDOH, Evaluation of Environmental Hazards at Sites with Contaminated Soil and Groundwater Volume 2: Background Documentation for the Development of Tier 1 Environmental Action Levels at Table B-1 (Fall 2017) available at http://eha-web.doh.hawaii.gov/ehacma/documents/dd50f3bf-a630-4705-8edd-f13bb204e559).10]

HDOH did not review the 2013 PSMP because of on-going litigation, i.e., Barber v. Ohana Military Communities, LLC, CV 14-00217 HG-KSC. [Poma Decl. at ¶ 68.] "Therefore, the modified Tier 2 EALs in the 2013 PSMP have never been used by [Defendants] to make soil decisions at MCBH." [Id.]

2. Previously Undeveloped Neighborhoods

The homes in the Hana Like, Hawaii Loa, and Nani Ulupau neighborhoods were built on undeveloped land, after the use of OCPs was prohibited. [Id. at ¶¶ 11.a, b, h; Waldron Decl. at ¶¶ 13.a, b, g.] Thus, Defendants argue the soil in those neighborhoods was never treated with OCPs. [Motion 1 CSOF at ¶ 8.] Mr. Poma states:

Poma Decl. at ¶ 11.a (footnotes omitted); see also Waldron Decl. at ¶ 16 (stating "the Phase II site investigation confirmed that [OCPs] were not detected above laboratory reporting limits").

3. Redeveloped Neighborhoods

In the Kaluapuni neighborhood, soil tests conducted before the original homes were demolished in 2006 showed that some samples were above the current Tier 1 EAL, and some samples were below it. [Waldron Decl. at ¶¶ 13.c (citing Waldron Decl., Exh. 32 (2003 test results for chlordane), Exh. 33 (2005 test results for chlordane)).] Post-demolition testing later in 2005 revealed significantly lower levels, "confirm[ing] that the natural mixing of soils that occurred during standard demolition activities significantly reduced the Chlordane concentrations." [Id. (citing Waldron Decl., Exh. 34 (May 2005 testing results), Exh. 35 (August 2005 testing results)).] The Navy/Marine Corps therefore "concluded that the residual concentrations of pesticides were acceptable and did not require further cleanup/remediation prior to construction of the new housing units," and Mr. Waldron opines that this conclusion was correct. [Id. at ¶ 13.d.]

In the Mokapu Court neighborhood, in August 2005, the soil at one of the nine original housing buildings was tested for chlordane prior to redevelopment, and chlordane was not detected. [Id. at ¶ 13.e (citing Waldron Decl., Exh. 35 (August 2005 testing results)).] The Navy/Marine Corps therefore "concluded that residual concentrations of pesticides in soil at Mokapu Court were acceptable (to the extent any in fact existed) and did not require cleanup/remediation prior to construction of the new housing units," and Mr. Waldron opinions that this conclusion was correct. [Id. at ¶ 13.f.] Mr. Waldron makes similar statements about the Pa Honua I neighborhood. [Id. at ¶¶ 13.h-i (stating no chlordane found in five composite samples tested in April 1995 (citing Waldron Decl., Exh. 36 (test results))).]

In the Pa Honua II neighborhood, in January 2000, the soil was tested in areas that had been identified as potentially containing chlordane. Of the twelve samples taken, "only two slightly exceeded the 2002 EPA preliminary remediation goal (`PRG') of 1.6 parts per million (ppm) (1.9 and 2.0 ppm)," and "[a]ll of these samples are significantly below the current Tier 1 EALs." [Id. at ¶ 13.j (citing Waldron Decl., Exh. 37 (testing results))).] In light of the results, and the fact that the chlordane concentrations would be reduced through the mixing of soil during construction, the Navy/Marine Corps concluded remediation was not necessary prior to construction, and Mr. Waldron opines that conclusion was correct. [Id. at ¶ 13.k.]

In the Pa Honua III neighborhood, in 2005, soil testing confirmed that chlordane was present in amounts exceeding the 2002 EPA PRG. The Navy hired Mr. Waldron to conduct a risk assessment for chlordane and other OCPs. Soil samples were collected from areas that were expected to have the highest concentrations of chlordane, as well as from other areas. [Id. at ¶¶ 13.l-m.]

[Id. at ¶ 13.n.] Post-construction soil testing was conducted in 2007 on samples from each of the 106 buildings in the neighborhood. The samples were grouped into ten decision units, and no pesticides were found in excess of the Tier 2 EALs in any of the decision units. [Id. at ¶ 13.o (citing Waldron Decl., Exh. 26 (Phase 2 Envtl. Site Assessment, Pa Honua 3 Marine Corps Base Hawaii Family Housing Area, by Parsons, dated 10/1/07 ("Pa Honua III Phase II ESA")).] Mr. Poma also states the Pa Honua III Phase II ESA shows that "no pesticide compounds exceeded their respective Tier 2 EALs in any of the decision units. For Aldrin, Dieldrin, and Chlordane, that would mean the detected concentrations are below today's Tier 1 EAL levels." [Poma Decl. at ¶ 11.k.]

In the Kapoho neighborhood, a Phase I ESA and a Phase II ESA were conducted, and Mr. Poma reviewed these and other materials in the course of his work with Ohana. [Id. at ¶ 11.e.] "[A]ll pesticide compounds were below their respective Tier 1 and Tier 2 environmental action levels (`EALs') in all samples." [Id. (footnotes omitted).]

A Phase II ESA was also conducted for the Mololani neighborhood before the prior residences were demolished. [Id. at ¶ 11.g; Poma Decl., Exh. 7 (Mololani Phase II ESA).] Some homes in Mololani "tested positive for [OCPs, in particular aldrin, dieldrin, and chlordane,] above Tier 2 EALs, but many had no Tier exceedances." [Poma Decl. at ¶ 11.g & n.8.] However, all of those results were at levels which are now at or below the current Tier 1 EALs. [Id. at ¶ 11.g.]

[Id.]

For the Ulupau neighborhood, a Phase II ESA was also conducted prior to demolition of the existing residences. [Id. at ¶ 11.l; Poma Decl., Exh. 10 (Ulupau Phase II ESA).] Another Phase II ESA was conducted by Integral Consulting in November 2011. [Poma Decl. at ¶ 11.l.] "[T]he majority of the homes and carports tested positive for [OCPs] above Tier 2 EALs (usually aldrin or dieldrin), but one had no Tier 2 exceedances." [Id.] Mr. Poma points out that "many" of these results would now be under the current Tier 1 EALs. [Id.]

[Id. (emphasis in original).]

For the Waikulu neighborhood, before demolition, a Phase II ESA was conducted in each of the three prior neighborhoods that comprise what is now Waikulu. [Id. at ¶ 11.m; Poma Decl., Exh. 13 (Manning Court Phase II ESA), Exh. 14 (Rainbow Phase II ESA), Exh. 15 (NCO Row Phase II ESA).] Manning Court had no results above the Tier 1 EALs. [Poma Decl. at ¶ 11.m.] "In Rainbow Court and NCO Row, some of the homes tested positive for [OCPs] above Tier 2 environmental action levels, but some homes had no Tier 2 exceedances." [Id.] Mr. Poma Mr. Poma points out that "many" of these results would now be under the current Tier 1 EALs. [Id.]

[Id. (emphasis in original).]

The Heleloa neighborhood "is the only remaining historic family housing neighborhood on MCBH." [Id. at ¶ 11.c.] When it was renovated in 2009, "a very careful historic preservation process was used." [Id.] Mr. Poma opines generally that:

[Id. at ¶ 46.]

4. Testing During this Litigation

In 2017, ACSI conducted a soil analysis project at MCBH. Before the testing, ACSI prepared a Sampling and Analysis Plan ("SAP"), which was approved by HDOH. [Poma Decl. at ¶¶ 12-13; Whattoff Decl. 1, Exh. 46 (4/13/17 letter to Gregory Rapp, Ohana's Regional Vice President, from Eric Sadoyama, Remedial Project Manager, HDOH, HEER Office).] Mr. Poma states:

[Poma Decl. at ¶ 14.] Mr. Poma oversaw and participated in the drafting of ASCI's Confirmation Soil Sampling Summary Report, dated December 2018 ("Confirmation Report"). [Id. at ¶ 15 & Exh. 18 (Confirmation Report).] The neighborhoods studied in this project were Kaluapuni, Mokapu Court, Mololani, Pa Honua I, Pa Honua II, Ulupau, and Waikulu.11 [Poma Decl., Exh. 18 (Confirmation Report) at pg. 1-1.]

Mr. Waldron has reviewed the Confirmation Report. [Waldron Decl. at ¶ 14.] He states: "All of the samples from the 2017 testing were below Hawaii Department of Health Tier I EALs. These findings confirm that [Ohana] and U.S. Government soil management practices successfully eliminated risks to human health and the environment from [OCPs] in the neighborhoods tested." [Id. at ¶ 15.]

Thus, Defendants argue that, since the demolition of the prior Kaluapuni homes, there has been no evidence of OCPs exceeding Tier 1 EALs. [Motion 1 CSOF at ¶ 11.] They also argue that, for the Mokapu Court neighborhood, there has never been evidence of OCPs and, for the Pa Honua I and Pa Honua II neighborhoods, there has never been evidence of OCPs exceeding Tier 1 EALs. [Id. at ¶¶ 12-14.]

Plaintiffs argue the 2017 testing, which Defendants contend shows no contamination, actually shows Ohana put pesticide-contaminated soils in MCBH common areas. [Opp. 1 at 8-10 & n.27 (citing Smith Decl. 1, Exh. 6 (excerpt of Waikulu/Hana Like Site Report) at OHANA-FCRM010723).] Plaintiffs argue the results from the Waikulu/Hana Like Site Report exceed the Tier 1 EALs in the 2007 PSMP, "and are only slightly below current Tier 2 levels of 5.4 mg/kg in some instances." [Id. at 10 & n.28 (citing Waikulu/Hana Like Site Report at OHANA-FCRM010723).] Mr. Poma testified:

[Smith Decl. 1, Exh. 2 (Poma Depo.) at 205-06.] Plaintiffs argue Mr. Poma admitted that Ohana's purported remediation efforts actually spread OCP-contaminated soil and that Ohana did not follow the 2007 PSMP. [Opp. 1 at 10.]

Defendants have submitted evidence that, in January 2018, Mololani and Pa Honua soils were tested prior to the installation of four new playgrounds, and OCPS "`were either not detected at laboratory listed soil method detection limits or below corresponding HDOH Tier 1 EALs.'" [Poma Decl. at ¶ 11.g (quoting Poma Decl., Exh. 28 (ACSI's report regarding Jan. 2018 testing)).]

5. Plaintiffs' Homes

Kenneth Lake and Crystal Lake's ("the Lakes") home in Mololani was rebuilt shortly before they moved in. When the Mololani Phase II ESA was conducted in 2007, the site of the Lakes' home and the sites of the adjacent homes were not tested for OCPs. Of the three homes closest to the Lakes' home that were tested, one had a Tier 2 EAL exceedance for dieldrin, but the other homes had no Tier 2 exceedances. [Id. at ¶¶ 16-17 (citing Poma Decl., Exh. 7 (Mololani Phase II ESA) at Figure 3 (OHANA-FCRM08211)).] However, based on the current EALs, that result would be below the Tier 1 EAL. [Id. at ¶ 17.] During the Mololani redevelopment (i.e., before the Lakes lived there), the soil at all of the home sites was addressed. [Id. at ¶ 18.] For the site that became the Lakes' home, "196 cubic yards of soil . . . were removed and replaced with clean soil or locally sourced non-expansive fill." [Id. (citing Poma Decl., Exh. 8 (Pesticide Soil Activity Closure Report for Mololani Family Housing — Phase IV, by ACSI, dated November 2012) at OHANA-FCRM000192).] The soil around the Lakes' home site was tested during the 2017 testing, see supra Background section I.C.4, which showed no unsafe OCP levels. [Poma Decl. at ¶ 19 (citing Poma Decl., Exh. 18 (Confirmation Report) at OHANA-FCRM 015314).]

The site of the Beans' home in Pa Honua II was tested during the 2017 testing. [Id. at ¶ 21 (citing Confirmation Report at OHANA-FCRM 015248).] The Beans subsequently lived in Hawaii Loa, which was built on undeveloped land after the OCP-ban. Mr. Poma therefore opines that Hawaii Loa was never treated with OCPs. [Id. at ¶ 22.] The Wilsons also lived in Hawaii Loa. [Id. at ¶ 32.]

The site of Kyle Pahona's home in Ulupau was redeveloped shortly before he moved there, and the soil for each Ulupau home site was addressed during the redevelopment. [Id. at ¶¶ 23-24.]

[Id. at ¶ 24.] The soil around Kyle Pahona's home site was tested during the 2017 testing, which showed no unsafe OCP levels. [Id. at ¶ 25 (citing Poma Decl., Exh. 18 (Confirmation Report) at OHANA-FCRM 015233).]

The Moseleys' first home in MCBH was one of the original Mololani homes built in 1960. That specific site was not tested before redevelopment. Some homes nearby had no Tier 1 EAL or Tier 2 EAL exceedances, but other nearby homes had Tier 2 exceedances for dieldrin and chlordane. [Id. at ¶ 26 (citing Poma Decl., Exh. 7 (Mololani Phase II ESA) at Figure 4 (OHANA-FCRM008212)).] However, Mr. Poma states those results were so low that they would now be below the current Tier 1 EALs. [Id.] The Moseleys later lived in the Waikulu neighborhood, and that home site was redeveloped before they moved there. [Id. at ¶ 27.] The Moseleys' home site previously had one of two buildings, neither of which was tested when the Phase II ESA was performed. [Id. (some citations omitted) (citing Poma Decl., Exh. 14 (Rainbow Phase II ESA) at Figure 2 (OHANA-FCRM 006419)).] Some samples taken from other parts of what became the Waikulu neighborhood were between the Tier 1 and Tier 2 EALs, while other samples were below the Tier 1 EALs. [Id. (some citations omitted) (citing Rainbow Phase II ESA at Figures 4-7 (Ohana-FCRM 006421-6424)).] "With respect to the Moseleys' specific home site, 363.5 cubic yards of soil were removed and replaced from around building 2578, and 316.3 cubic yards of soil were removed and replaced from around building 2579. All of this soil was replaced with clean soil." [Id. at ¶ 28 (citing Poma Decl., Exh. 16 (Pesticide Soil Activity Closure Report for Waikulu Family Housing — Increment 2, by Ohana, dated 10/26/10) at (OHANA-FCRM000326)).] The soil around the Moseleys' Waikulu home site was tested during the 2017 testing, which showed no unsafe OCP levels. [Id. at ¶ 29 (citing Poma Decl., Exh. 18 (Confirmation Report) at OHANA-FCRM 015141).] Finally, the Moseleys lived in the Pa Honua II neighborhood. [Id. at ¶ 30.] The soil around their Pa Honua II home site was tested during the 2017 testing, which showed no unsafe OCP levels. [Id. at ¶ 31 (citing Confirmation Report at OHANA-FCRM 015229).]

6. Plaintiffs' Testimony about OCPs

Harold Bean testified that, just because the Hawaii Loa neighborhood was built on undeveloped land after chlordane was banned does not mean chlordane is not present there, and he disputes the statement that it is "highly unlikely" OCPs were used in the soil near those homes. [Whattoff Decl. 1, Exh. 47 (excerpts of trans. of 4/9/19 depo. of Harold Alan Bean, Jr. ("H. Bean Depo.")) at 80-81.] Harold Bean stated, "[t]here's no proof" that OCPs were never used in Hawaii Loa, and "there is nothing proving that it was not used in that area during the time frame that chlordane could have been used." Id. at 81-82; see also id. at 84. Even though Hawaii Loa was built on undeveloped land, "the fact that [chlordane] was used in other locations on base, [he] would have to assume that it was used there as well." [Whattoff Decl. 1, Exh. 47 (H. Bean Depo.) at 82.] Melinda Bean was asked whether she was "aware of any research or evidence that suggested that exposure . . . to residual amounts [of pesticides] in soils around homes can cause health issues," and she responded that she was not. [Whattoff Decl. 1, Exh. 48 (excerpts of trans. of 4/9/19 depo. of Melinda Bean ("M. Bean Depo.")) at 8.]

Crystal Lake testified that she could not identify any evidence showing the area where she lived in MCBH was impacted by pesticides, or any other hazardous substances. [Whattoff Decl., Exh. 49 (excerpts of trans. of 4/27/19 depo. of Crystal Lake ("C. Lake Depo.")) at 8-9.] She asserts her injury is that she "was not told about the construction and the soil that was being dug up on that base and the possibility of it containing harmful products," but she could not identify what harmful products were in the soil. [Id. at 22-23.] She testified that, when Defendants informed residents about how soil that was potentially impacted with pesticides was addressed, Defendants should have provided citations or evidence "for [her] to refer to fact check" and confirm the remediation described had actually been done. [Id. at 50-51.] Kenneth Lake gave similar testimony about what Defendants should have provided. [Whattoff Decl. 1, Exh. 50 (excerpts of trans. of 3/11/19 depo. of Kenneth Lake ("K. Lake Depo.")) at 59-60.] Kenneth Lake testified that he "believe[d] after the mold issue was taken care of, then [his MCBH home] was a safe place to live." [Id. at 65.]

Ashley Moseley testified that she "can't say for sure, but [she has] reason to believe that [she] was" exposed to OCPs because OCPs were used on MCBH homes and, when Ohana was "demolishing them, obviously it was in the air and we were exposed to it since it can live in the ground for, like, twenty years." [Whattoff Decl. 1, Exh. 51 (excerpts of trans. of 4/17/19 depo. of Ashley Moseley ("A. Moseley Depo.")) at 8.] She admitted that, other than the prior use of OCPs at MCBH and the construction, she had no basis for her statement that she was exposed to OCPs. [Id. at 8-9.] She admitted she did not know whether the soil around her home was impacted by pesticides during the time she lived there. [Id. at 91.] Timothy Moseley testified that his specific homes on MCBH had OCPs in the soil around them. He stated the basis for his statement was the maps and documents showing that OCPs were used on MCBH in general. [Whattoff Decl. 1, Exh. 52 (excerpts of trans. of 4/16/19 depo. of Timothy Moseley ("T. Moseley Depo.")) at 16, 19.] Timothy Moseley testified that, other than his homes, he was exposed to OCPs in "[c]ommon areas, playgrounds, commissary, going to work, other peoples' houses, and school," but he could not identify any specific document or evidence showing this. [Id. at 21.] He testified the he did not have any evidence showing the reported soil remediation was not done, but there is also no evidence showing that the remediation was done. [Id. at 105.]

Kyle Pahona testified that he had no evidence his MCBH home was impacted by OCPs or any other hazardous substances. Further, when he lived at MCBH, he was not aware that he had any exposure to OCPs in ways other than at his home. [Whattoff Decl. 1, Exh. 53 (excerpts of trans. of 4/27/19 depo. of Kyle Pahona ("Pahona Depo.")) at 5-6.] He also acknowledged he had no evidence that the reported soil remediation in his neighborhood did not occur. [Id. at 44.]

Heather Wilson testified that she did not know whether there were OCPs in the Hawaii Loa neighborhood when she lived there, and she was not aware of any evidence that OCPs were ever present in the soil in Hawaii Loa. [Whattoff Decl. 1, Exh. 54 (excerpts of trans. of 3/5/19 depo. of Heather Wilson ("H. Wilson Depo.")) at 40, 52.] She stated she was not aware that OCPs were ever used in the soil around the home where she lived but, if they were used, Forest City should have told Plaintiffs about it before they signed their lease. [Id. at 49.] Ryan Wilson testified that he was not aware of any evidence that OCPs were applied to their homes, or any of the other homes in their neighborhood. [Whattoff Decl. 1, Exh. 55 (excerpts of trans. of 3/5/19 depo. of Ryan Wilson ("R. Wilson Depo.")) at 62-64.]

In response to many of defense counsel's questions, Plaintiffs responded that they could not answer because they were not experts, environmentalists, or scientists. See, e.g., Whattoff Decl. 1, Exh. 47 (H. Bean Depo.) at 81; Exh. 48 (M. Bean Depo.) at 48; Exh. 49 (C. Lake Depo.) at 6; Exh. 50 (K. Lake Depo.) at 60, 115-16; Exh. 52 (T. Mosely Depo.) at 97, 109; Exh. 53 (Pahona Depo.) at 43; Exh. 54 (H. Wilson Depo.) at 49, 57; Exh. 55 (R. Wilson Depo.) at 73-74.

Thus, Defendants argue Plaintiffs have no evidence that the homes they lived in were impacted by OCPs while they lived there. [Motion 1 CSOF at ¶¶ 25-28 (citing pages of Pltfs.' deposition transcripts).] Further, Defendants emphasize that Plaintiffs could not identify any other specific areas where they were exposed to OCPs. [Id. at ¶ 30 (citing pages of Pltfs.' deposition transcripts).]

D. Dust at MCBH

Harold Bean testified that the only evidence showing that the dust he experienced was caused by construction was that he saw construction going on, including the movement of soil with equipment. [Whattoff Decl. 1, Exh. 47 (H. Bean Depo.) at 77.] His only basis for his belief that the dust was impacted by OCPs was the fact that OCPs were used at MCBH at some point. [Id. at 124-26.] Melinda Bean acknowledged she had no evidence the construction dust contained pesticides. [Whattoff Decl. 1, Exh. 48 (M. Bean Depo.) at 74.]

Kenneth Lake testified that he could not recall whether the level of dust in his home was affected when construction was occurring. [Id., Exh. 50 (K. Lake Depo.) at 85.] He also testified that he did not know what the source of the dust was. [Id. at 88-89.]

Ashley Moseley believed the dust that affected her home had OCPs because she assumed that that residual OCPs in the MCBH soil would become airborne during construction. However, she admitted that she did not know what levels, if any, of OCPs there were in the dust. [Whattoff Decl., Exh. 51 (A. Moseley Depo.) at 9.]

Kyle Pahona testified that he never took pictures of the dust because there was "[f]ar less dust [at MCBH] than there would be in Arizona[, where he is from,] so [he] lived with it," and he did not think there was anything unusual about the dust at MCBH. [Whattoff Decl., Exh. 53 (Pahona Depo.) at 48-49.] He stated construction dust, or any other dust at MCBH, did not impact his life. [Id. at 51.]

Heather Wilson testified that she did not know whether the construction dust at MCBH had unsafe levels of pesticide. [Whattoff Decl. 1, Exh. 54 (H. Wilson Depo.) at 41.] Ryan Wilson testified that he did not know whether the dust that impacted his home was from construction at MCBH or from other areas with exposed dirt, and he could not say whether he continued to experience dust after the construction was completed. [Id., Exh. 55 (R. Wilson Depo.) at 103-04, 106.]

Defendants argue an expert is required to determine the source of dust. [Motion 1 CSOF at ¶ 34.] Defendants' expert stated:

[Whattoff Decl. 1, Exh. 58 (Expert Report by James F. Lape, Jr., dated 5/22/19 ("Lape Report")) at § 4.2.12] As to Plaintiffs' allegations in this case, Mr. Lape opines:

[Id. at § 4.2.3.]

Defendants also presented testimony about the measures Ohana took to remove, prior to construction, soil that was potentially impacted with OCPs. [Poma Decl. at ¶¶ 50-54, 56-57, 59.] Mr. Poma acknowledges receiving one complaint about a soil stockpile in the Mololani neighborhood, but he states the stockpile was clean soil that was intended for groundcover. [Id. at ¶ 59 n.18.]

E. Damages

Plaintiffs seek all or part of their Basic Housing Allowance ("BAH") for the time they lived at MCBH. [Motion 2 CSOF at ¶ 1; Concise statement of facts in supp. of Opp. 2 ("Opp. 2 CSOF"), filed 7/1/19 (dkt. no. 167), at ¶ 1 (stating Defs.' ¶ 1 is undisputed).] Plaintiffs paid the following amounts in rent while living at MCBH:

[Motion 2 CSOF at ¶ 2; Opp. 2 CSOF at ¶ 2.] Plaintiffs have testified that they would not have lived at MCBH had they been told about the OCPs. See, e.g., Opp. 2 CSOF, Decl. of Kyle Smith ("Smith Decl. 2"), Exh. 2 (Pahona Depo.) at 40:7-18.

The Lakes and Ashley Moseley seek general damages for emotional distress; the Beans, Timothy Moseley, and Kyle Pahona seek general damages for interference with their use and enjoyment of their home and community. [Motion 2 CSOF at ¶¶ 3-4; Opp. 2 CSOF at ¶¶ 3-4.]

There has been some testimony about medical issues, such as Kenneth Lake's low testosterone levels, Harold Bean's asthma, Ryan Wilson's asthma and sinus problems, and the Moseley children's autism. [Motion 2 CSOF at ¶¶ 5-8; Opp. 2 CSOF at ¶¶ 5-8.] However, as to each of these, Plaintiffs state they "do not seek damages for illness." [Opp. 2 CSOF at ¶¶ 5-8.] Plaintiffs acknowledge they have not identified their doctors or other medical care providers as potential witnesses, and they state they do not intend to rely on medical testimony. Similarly, they acknowledge they have not disclosed any experts, but they argue none of their claims require expert testimony. [Motion 2 CSOF at ¶¶ 9-10; Opp. 2 CSOF at ¶¶ 9-10.]

In 2014, Kyle Pahona first heard about MCBH's prior use of OCPs, but he did not move off of MCBH until November 30, 2016, when he was transferred. [Motion 2 CSOF at ¶ 19; Opp. 2 CSOF at ¶ 19.] Heather Wilson and Crystal Lake also first heard about OCPs in 2014, but the Wilsons did not consider moving off of MCBH because of Ryan Wilson's impending retirement, and the Lakes did not move off base until Kenneth Lake took a civilian job. [Motion 2 CSOF at ¶¶ 20-21; Opp. 2 CSOF at ¶¶ 20-21.] The MCBH lease agreement states it is terminable at will. [Motion 2 CSOF at ¶ 22; Opp. 2 CSOF at ¶ 22 (admitting Defs.' ¶ 22 in part).] Ashley Moseley states the first MCBH home they rented had significant dust issues, and they moved off of the base in 2009. However, the Moseleys later moved back to MCBH and lived there for several more years. Those homes did not have significant dust impacts. [Motion 2 CSOF at ¶ 23; Opp. 2 CSOF at ¶ 23.]

II. Motions

In Motion 1, Defendants argue they are entitled to summary judgment as to each of the remaining counts because: 1) Plaintiffs ultimately will be unable to prove they were exposed to unsafe levels of pesticides, or any other substance; and 2) this is a necessary element of each of Plaintiffs' claims and. Defendant asserts that, because Plaintiffs have failed to present sufficient evidence to raise a genuine issue of fact as to this element, all of Plaintiffs' claims fail as a matter of law.

In Motion 2, Defendants argue they are entitled to summary judgment on all of Plaintiffs' remaining claims because Plaintiffs are unable to prove any damages. In the alternative, Defendants seek a ruling excluding certain theories of Plaintiffs' damages. According to Defendants, Plaintiffs' damages theories are: 1) they are entitled to the return of all of the rent they paid while living at MCBH; 2) in the alternative, they should be awarded the difference between the rent they paid and the rent they would have paid if the presence of OCPs on MCBH had been disclosed; and 3) they are entitled to general damages and emotional distress damages.

DISCUSSION

I. Motion 1

A. Safe and Habitable Housing

In order to ultimately prevail on Counts I, II, and III, Plaintiffs must prove that Ohana, as to Counts I and II, and Defendants, as to Count III, failed to provide safe and habitable housing to Plaintiffs. See First Amended Complaint at ¶¶ 62, 63.b, 63.c (alleging Ohana breached its lease agreements with Plaintiffs by failing to provide safe and habitable housing and a safe and inhabitable community at MCBH); 5/31/18 Order, 2018 WL 2449188, at *6 ("A property owner breaches the implied warranty of habitability if he leases his property with a defect or unsafe condition that is of a nature and kind which will render the premises unsafe, or unsanitary and thus unfit for living." (citations and internal quotation marks omitted)); id. (ruling Plaintiffs' allegation that Defendants violated Haw. Rev. Stat. § 521-10 is actionable pursuant to Haw. Rev. Stat. § 521-63).13 Plaintiffs' position that they are not required to prove they were exposed to OCPs is rejected.

1. Scope of Plaintiffs' Claims

Count I alleges that Ohana agreed to provide safe and habitable conditions both at Plaintiffs' homes and in the MCBH community generally. See 5/31/18 Order, 2018 WL 2449188, at *5. Plaintiffs' MCBH leases indicate that Ohana contemplated offering various community services and facilities for residents' use throughout MCBH, in connection the leases of their homes. See, e.g., Whattoff Decl. 2, Exh. T (Pahona Lease) at OHANA-FCRM 016507 ("Owner may provide from time to time various services, equipment and facilities for residents to use at their own risk. . . . Resident recognizes that Owner provides these services and facilities for Residents only as a courtesy in connection with Resident's leasing of the Premises."); Smith Decl. 1, Exh. 8 (Community Handbook) at 7 (stating that "common areas[] include[e] but [are] not limited to parking lots, stairwells, breezeways, jogging trails, laundry rooms, courtyard areas, the grounds surrounding the Premises, clubrooms, sport courts, creeks, lakes and pools" and "are for the use and enjoyment of all Residents at the Neighborhood"); id. at 25 ("Playgrounds are provided throughout the Neighborhood for Resident, Occupant and Guest use and enjoyment."). Forest City, as Ohana's agent, was responsible for the ground maintenance for these community facilities. See, e.g., Smith Decl. 1, Exh. 8 (Community Handbook) at 13 ("RSO's will regularly mow and maintain all unfenced grounds around the Premises including common areas, community centers and playgrounds."); id. at 25 ("the playgrounds and common areas are cleaned and mowed on a schedule by the maintenance technicians").14 For purposes of the instant Motions, the record must be viewed in the light most favorable to Plaintiffs, the nonmoving party, and all inferences must be drawn in Plaintiffs' favor. See S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019). Viewing Plaintiffs' leases and the Community Handbook in the light most favorable to Plaintiffs, it can be reasonably inferred that Defendants undertook the obligation to maintain the grounds underneath the community facilities in a safe condition.15

Plaintiffs have presented evidence that they and their children frequently traveled throughout the MCBH community for various activities, including going to school, visiting friends' houses, and playing at the playground. See, e.g., Smith Decl. 1, Exh. 11 (H. Wilson Depo.) at 68-69; id., Exh. 12 (Response & Objections to Def. Ohana Military Cmtys., LLC's First Request for Answers to Interrogs. to Pltf. Heather Wilson, dated 2/26/19) at response to interrog. no. 2. Therefore, in ruling on Motion 1, this Court must consider whether Plaintiffs were exposed to unsafe and uninhabitable conditions anywhere at MCBH, not only whether their specific homes at MCBH were safe and habitable.

2. Lack of Expert Testimony

In Motion 1, Defendants argue Plaintiffs have not raised a genuine issue of fact as to the issue of whether MCBH was unsafe and uninhabitable because Plaintiffs have not presented any expert testimony. Further, even if Counts I, II, and III proceed to trial, Plaintiffs will be unable to prove that issue without expert testimony. Plaintiffs contend they are not required to present expert testimony because the evidence Defendants have presented establishes the widespread presence of OCPs throughout MCBH and the risks that OCPs present. However, the only specific document that Plaintiffs mention is the PSMP, and, while Plaintiffs assert the "PSMP and related documentation confirms pesticide contamination, exposure estimates, cancer risks, and other relevant details for the MCBH community[,]" Plaintiffs do not identify any specific statement in the PSMP or in any other document. [Opp. 1 at 25.] Defendants have carried their initial burden on summary judgment, and Plaintiffs' general reliance on the PSMP and other unspecified documents does not raise a genuine issue of material fact as to Plaintiffs' claim that MCBH was unsafe and uninhabitable because of pesticide contamination in the soil. See Fed. R. Civ. P. 56(a) (stating a party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law").16

Regarding chlordane — the most commonly used OCP for termite treatment in Hawai`i, the 2007 PSMP states:

[Poma Decl. 1, Exh. 23 (2007 PSMP) at 5.] The 2007 PSMP makes similar statements about aldrin and dieldrin. [Id.] The 2007 PSMP does not specify what amount of the OCPs must be ingested or inhaled to produce adverse health effects.

As to the 2007 PSMP's target risk levels, see supra Background section I.C.1 (quoting 2007 PSMP at 10), Plaintiffs argue the PSMP unilaterally determined that it is acceptable to expose MCBH residents to a 1 in 100,000 risk of cancer and other non-cancer adverse health effects.17 [Opp. 1 at 6.] However, the 1 in 100,000 risk for Tier 2 EALs is consistent with the guidance provided by various government environmental regulatory offices. [Poma Decl., Exh. 23 (2007 PSMP) at 11-12.] The 2007 PSMP sets forth the processes for: dealing with pesticide-impacted soils during demolition and construction; and on-going operation and maintenance of housing areas with pesticide-impacted soils.18 [Id. at 21-34.] As previously noted, the HDOH, HEER Office concurred in the 2007 PSMP. The Concurrence Letter specifically states: "This concurrence includes the use of the proposed Tier 2 EALs (which incorporate cumulative risk considerations for multiple contaminants) for project sites." [Poma Decl., Exh. 27 (Concurrence Letter) at 1.] Moreover, the HDOH, HEER Office subsequently increased the thresholds for the relevant Tier 1 EALs. See Poma Decl. at ¶ 11.g & n.8 (citing HDOH Tier 1 Documentation at Table B-1). In raising the thresholds, the HDOH stated: "A cancer risk of less than one-in- ten thousand . . . is considered to be insignificant and not detectable in a population." [2017 HDOH Tier 1 Documentation at pg. 1-6 (emphases added).] The 2017 HDOH Tier 1 Documentation only states that the contaminant should be removed if the cancer risk is more than 1 in 10,000. [Id.]

In order to prevail on Counts I, II, and III, Plaintiffs must establish that, in spite of: 1) the regulatory bases for the 1 in 100,000 risk-level threshold; 2) the HEER concurrence; and 3) the HDOH's subsequent increase in the Tier 1 EALs, the 2007 PSMP permitted pesticide levels at MCBH which rendered MCBH unsafe and uninhabitable. In Barber, the district court stated:

Barber v. Ohana Military Cmtys., LLC, Civil No. 14-00217 HG-KSC, 2015 WL 4171984, at *6 (D. Hawai`i July 9, 2015).19 In the instant case, the claims in Counts I, II, and III are more complex than "ordinary negligence claims." The issue of whether MCBH could be considered unsafe and uninhabitable, in spite of the regulatory support for the positions taken in the 2007 PSMP, requires knowledge that is beyond the "everyday experience, observations, and judgment" of a jury. See Exotics Haw.-Kona, 116 Hawai`i at 299-300, 172 P.3d at 1043-44. An expert witness's "scientific, technical, or other specialized knowledge" is necessary to help the jury understand the evidence and to determine whether MCBH was safe and habitable. See Rule 702(a). Because Plaintiffs did not identify any expert witnesses regarding soil contamination and remediation standards, they cannot contest the positions in the 2007 PSMP, or other similar documents, discussed supra Background sections I.C.1-4, that Ohana: 1) identified areas within MCBH that required remediation of contaminated soil; and 2) identified appropriate remedial actions.

Arguments by Plaintiffs' counsel and testimony by Plaintiffs attacking the assumptions and methodology in the 2007 PSMP and other similar documents do not constitute expert testimony. Nor is Plaintiffs' testimony admissible as lay opinion because no plaintiff testified to a sufficient factual basis that would support a finding that his or her opinions were "rationally based on th[at] witness's perception" and were "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." See Fed. R. Evid. 701(a), (c); see also Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1060 (9th Cir. 2008) (stating "a district court does not abuse its discretion in allowing lay opinion testimony when a witness cannot explain through factual testimony the combination of circumstances that led him to formulate that opinion" (citation and internal quotation marks omitted)). Thus, Plaintiffs have failed to present any admissible evidence that raises a genuine issue of material fact as to the validity of the 2007 PSMP and other similar documents. See Weil v. Citizens Telcom Servs. Co., 922 F.3d 993, 998 (9th Cir. 2019) ("we may only consider admissible evidence when reviewing a motion for summary judgment").

3. Alleged Failure to Comply

Plaintiffs next argue the existing record raises a genuine issue of material fact regarding whether Defendants complied with the remediation efforts called for in the 2007 PSMP and other similar documents. Plaintiffs argue the Navy refuses to represent that the homes on MCBH are safe. [Opp. 1 at 18.] An email obtained in a Freedom of Information Act request during Barber states:

[Smith Decl. 1 at ¶ 3, Exh. 10 (email dated 10/21/15, sender and recipients redacted).] Although this email arguably shows the Navy declined to make a statement that MCBH homes were safe, the email also shows the Navy allowed Forest City to make such representations. As previously noted, Forest City is Ohana's agent in Ohana's PPV with the Navy/Marines. Thus, the email cannot be construed as disclaiming the safety and habitability of MCBH housing. Even viewing the record in the light most favorable to Plaintiffs, this email does not raise a triable issue fact as to: 1) whether Defendants complied with the 2007 PSMP and other similar documents; or 2) whether MCBH was unsafe and uninhabitable due to unresolved soil contamination issues.

Plaintiffs also argue Mr. Poma admitted during his deposition that contaminated soil was co-mingled with clean soil during the remediation efforts. See Smith Decl. 1, Exh. 2 (Poma Depo.) at 205-06, quoted supra Background section I.C.4. During that line of questioning, Mr. Poma testified the levels of pesticides detected in the 2017 testing were at low, residual levels. Even viewing the record in the light most favorable to Plaintiffs, this is not enough to raise a triable issue of fact as to whether Ohana complied with the 2007 PSMP and other similar documents. Plaintiffs would have to present expert testimony to show that the residual levels of pesticides found in the 2017 testing show that Ohana failed to comply with the remediation procedures set forth in the 2007 PSMP and other similar documents. Viewing the current record as a whole in the light most favorable to Plaintiffs, it must be concluded that Plaintiffs have not presented any admissible evidence that Ohana failed to comply with the 2007 PSMP and other similar documents.

4. Ruling

There is undisputed evidence in the record that Ohana: 1) identified areas within MCBH that required remediation of contaminated soil; 2) identified appropriate remedial actions; and 3) implemented those remedial measures. Plaintiffs have failed to present sufficient evidence to raise a triable issue of fact as the issue of whether MCBH was safe and habitable. Summary judgment is therefore granted in favor of: Ohana as to the portion of Count I alleging Ohana breached the Plaintiffs' leases by failing to provide safe and habitable living conditions on MCBH; Ohana as to Count II; and Defendants as to Count III.

In addition, Count I also alleges Ohana breached its lease agreements with Plaintiffs by failing to "fully implement" the PSMP. [First Amended Complaint at ¶ 63.d.] Because Plaintiffs have failed to present sufficient evidence to raise a triable issue of fact as to the alleged failure to comply with the 2007 PSMP, or any other applicable version, Ohana is entitled to summary judgment as to that portion of Count I.

B. Failure to Warn

The remaining portion of Count I alleges Ohana breached Plaintiffs' lease agreements by failing to "[d]isclose the presence, nature, or extent of pesticide-contaminated soils at MCBH." [Id. at ¶ 63.a.] In addition, Count V alleges Defendants negligently failed to warn Plaintiffs about the risks presented by the pesticide-contaminated soils at MCBH. [Id. at ¶¶ 96-97.]

1. Breach of Contract

As previously noted, the Community Handbook, which is incorporated into Plaintiffs' lease agreements, contains a disclosure about the prior use of now-banned pesticides. [Smith Decl. 1, Exh. 8 (Community Handbook) at 12, quoted supra Background section I.B.] The disclosure states such pesticides "may be found in soils under and around housing constructed in both civilian and military communities." [Id.] Plaintiffs have not identified any specific term in their lease agreements that obligated Ohana to make a more detailed disclosure about the possibility of residual pesticides in the soil at MCBH. See 5/31/18 Order, 2018 WL 2449188, at *5 (stating one of the elements of a breach of contract claim is the identification of the specific provision that the defendant allegedly violated). Plaintiffs appear to argue that this portion of Count I alleges a breach of the covenant of good faith and fair dealing, which is implied in their lease agreements. See Opp. 1 at 14.

None of the allegations in Count I refer to a breach of the implied covenant of good faith and fair dealing. See First Amended Complaint at ¶¶ 59-67. However, even if Plaintiffs are allowed to pursue a breach of contract claim that is not plead in the First Amended Complaint, the claim would still fail as a matter of law. "Under Hawai`i law, `every contract contains an implied covenant of good faith and fair dealing that neither party will do anything that will deprive the other of the benefits of the agreement.'" Liberty Mut. Ins. Co. v. Sumo-Nan LLC, CIVIL NO. 14-00520 DKW-KSC, 2015 WL 6755212, at *3 (D. Hawai`i Nov. 4, 2015) (quoting Best Place, Inc. v. Penn Am. Ins. Co., 82 Haw. 120, 123-24, 920 P.2d 334, 337-38 (1996)). In Plaintiffs' lease agreements, Ohana agreed to provide safe and habitable conditions at MCBH. This Court has ruled that Ohana is entitled to summary judgment on Plaintiffs' claims asserting that Ohana failed to provide safe and habitable conditions. It is therefore assumed that Plaintiffs were provided with safe and habitable conditions while they lived at MCBH. Thus, Ohana's failure to disclose more information about the prior use of now-banned pesticides at MCBH did not deprive Plaintiffs of the benefits of their lease agreements. Plaintiffs have failed to raise a triable issue of fact as to their allegation that Ohana breached Plaintiffs' lease agreements by failing to disclose more information about potential pesticide-contamination in the soil at MCBH. Defendants are therefore entitled to summary judgment as to that portion of Count I.

2. Negligent Failure to Warn

In Barber, the district court stated:

Barber v. Ohana Military Cmtys., LLC, Civil No. 14-00217 HG-KSC, 2014 WL 3529766, at *9 (D. Hawai`i July 15, 2014). Because Defendants have established that Ohana provided safe and habitable conditions at MCBH, the potential presence of residual pesticides in the soil at MCBH was not "a dangerous agency[] which create[d] a foreseeable peril to" Plaintiffs. See Kajiya, 2 Haw. App. at 226, 629 P.2d at 640. Thus, Defendants did not have a duty to provide any further warnings to Plaintiffs beyond the pesticide disclosure contained in Plaintiffs' lease agreements. Defendants are therefore entitled to summary judgment as to Count V.

C. Remaining Claims

1. Counts VI, VII, and VIII

Counts VI, VII, and VIII are also premised upon Plaintiffs' positions that: 1) the residual pesticides in the soils at MCBH placed Plaintiffs at increased health risks; and 2) Defendants had a duty to warn Plaintiffs about the prior use of now-banned pesticides at MCBH. [First Amended Complaint at ¶¶ 110-12 (Count VI), ¶¶ 108-09 (Count VII), ¶¶ 126-27 (Count VIII).20] Because summary judgment has been granted in favor of Defendants as to these issues, Counts VI, VII, and VIII also fail as a matter of law. Defendants are therefore entitled to summary judgment as to those claims.

2. Nuisance

As previously noted, the Beans' and the Moseleys' nuisance claims have been dismissed with prejudice. Thus, only the Lakes, Kyle Pahona, and the Wilsons still have nuisance claims ("Nuisance Plaintiffs"). The Nuisance Plaintiffs' claims, have two components: 1) the pesticide-contaminated soil and dust at MCBH constituted a nuisance ("Contamination Nuisance Claims"); [id. at ¶¶ 160-61;] and 2) construction dust at MCBH generally, without regard to the contents of the dust, constituted a nuisance ("Construction Nuisance Claims"), [id. at ¶¶ 159]. For the reasons stated, supra Discussion section I.C.1, the Contamination Nuisance Claims fail as a matter of law. Defendants are therefore entitled to summary judgment as to that portion of Count XI.

As to the Construction Nuisance Claims, expert testimony is not required for the Nuisance Plaintiffs to establish their prima facie case because the issues associated with these claims are within their first-hand knowledge, and a jury would be able to decide those issues without the assistance of expert testimony. See Barber, 2015 WL 4171984, at *7 ("Plaintiffs are able to present their own testimony that visible dust occurred during Defendants' construction while Plaintiffs were tenants at [MCBH]. Nothing in Hawaii state law requires an expert opinion in such circumstances." (citing Yoneda v. Tom, 133 P.3d 796, 814 (Haw. 2006))). Further, the Construction Nuisance Claims do not require proof that MCBH was unsafe and uninhabitable.

This Court has previously stated:

[Order Granting in Part and Denying in Part Defs.' Motion to Dismiss, filed 8/1/17 (dkt. no. 63) ("8/1/17 Order"), at 26 (some alterations in 8/1/17 Order).21] It is undisputed that construction took place in MCBH while the Nuisance Plaintiffs lived there. There are genuine issues of material fact as to whether the dust resulting from the construction unlawfully disturbed the Nuisance Plaintiffs' free use and enjoyment of MCBH. See Littleton, 66 Haw. at 67, 656 P.2d at 1344. These issues preclude summary judgment as to the Nuisance Plaintiffs' Construction Nuisance Claims in Count XI. Motion 1 is therefore denied as to that portion of Count XI.

3. Other Hazardous Substances

Plaintiffs' claims in the First Amended Complaint appear to focus upon pesticide contamination in the soil at MCBH. However, to the extent that their claims can be construed as also alleging they were exposed to other hazardous substances, besides OCPs, in the soil, Plaintiffs' claims fail for the same reasons set forth, supra Discussion section I.A. Plaintiffs have not presented sufficient evidence to raise a triable issue of fact as to the issues of: 1) whether the other substances contained in the soil were hazardous and rendered MCBH unsafe and uninhabitable; and 2) whether Defendants had a duty to disclose to Plaintiffs information about the allegedly hazardous substances before they entered into their lease agreements.

D. Summary

Motion 1 is denied as to the portion of Count XI asserting claims by the Lakes, Kyle Pahona, and the Wilsons, that construction dust at MCBH — in general and without regard to the contents of the dust — constituted a nuisance. Motion 1 is granted in all other respects.

II. Motion 2

In light of its rulings on Motion 1, this Court is only required to address the issues in Motion 2 as to the Nuisance Plaintiffs' damages for the Construction Nuisance Claims. If the Nuisance Plaintiffs "establish liability and causation at trial and if they present sufficient evidence to establish their damages for the injuries to their [rental] properties, their recovery is limited to . . . expenses actually incurred . . . to remediate the injuries to their properties." See Aana v. Pioneer Hi-Bred Int'l, Inc., CIVIL NO. 12-00231 LEK-BMK, CIVIL NO. 12-00665 LEK-BMK, 2014 WL 12607849, at *3 (D. Hawai`i Dec. 10, 2014). Further, if Kyle Pahona is still residing at MCBH, see supra note 2, he is entitled to recover the costs to remediate the injuries to his rental home, as of the time of trial. See Aana, 2014 WL 12607849, at *3.

As another element of actual damages, the Nuisance Plaintiffs may also seek the return of their rental payments, if they present evidence that: 1) the construction dust was so severe, from the outset of their rental term, that they would not have rented their homes at MCBH if Defendants had disclosed to them prior to entering into their lease agreements what the extent of the construction dust would be; or 2) if the construction dust did not arise until after they were already living at MCBH, they wanted to terminate their lease agreements, but Defendants prevented them from doing so. However, because the Nuisance Plaintiffs cannot receive a windfall, any recovery of rental payments must be reduced by the reasonable rent that they would have paid for other comparable housing during the same period. See Tabieros v. Clark Equip. Co., 85 Haw. 336, 389-90, 944 P.2d 1279, 1332-33 (1997) ("The general rule in measuring damages is to give a sum of money to the person wronged which as nearly as possible, will restore him or her to the position he or she would be in if the wrong had not been committed." (brackets, citation, and quotation marks omitted)).

In addition to the foregoing actual damages, the Nuisance Plaintiffs may also recover special damages. The Restatement (Second) of Torts states:

Restatement (Second) of Torts § 929(1). There is no case law from the Hawai`i appellate courts adopting or rejecting § 929. This Court must therefore predict how the Hawai`i Supreme Court would decide the issue. See Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 427 (9th Cir. 2011). This Court has previously predicted that the Hawai`i Supreme Court would follow Restatement (Second) of Torts § 822, regarding the elements of a private nuisance claim. Aana v. Pioneer Hi-Bred Int'l, Inc., Civil Nos. 12-00231 LEK-BMK, 12-00665 LEK-BMK, 2015 WL 181764, at *6-7 (D. Hawai`i Jan. 14, 2015). Consistent with that prediction, this Court also predicts that the Hawai`i Supreme Court would follow the Restatement (Second) of Torts regarding the measure of damages for a nuisance claim. Thus, if the Nuisance Plaintiffs prevail, and they present a sufficient factual basis, they would be entitled to recover damages for: the loss of use and enjoyment of their homes, and of the MCBH community, caused by the construction dust; and their discomfort and annoyance caused by the construction dust.

Because there are cognizable damages theories for the Construction Nuisance Claims, Motion 2 is denied, insofar as Defendants assert they are entitled to summary judgment because: 1) the Nuisance Plaintiffs are unable to prove any damages; and 2) none of the Nuisance Plaintiffs' damages theories are viable. However, Motion 2 is granted as to Defendants' request for a ruling limiting the potential recovery of rental payments.

III. Remaining Issues Regarding Plaintiffs' Other Claims

Although it is unnecessary in light of the rulings on Motion 1, some of the other issues raised in the Motions will be addressed for the sake of completeness. Even if Plaintiffs' claims regarding pesticide-impacted soil did not fail for the reasons set forth supra Discussion section I.A, those claims, and the evidence in support thereof, would be limited as set forth below.

A. Adverse Health Conditions

There has been some testimony about medical issues, but Plaintiffs have conceded that they will not be presenting medical evidence, and that they are not seeking damages for illnesses. See supra Background section I.E. Even viewing the record in the light most favorable to Plaintiffs, Plaintiffs have failed to present admissible evidence that anything they were exposed to at MCBH caused those adverse health conditions. See Weil, 922 F.3d at 998. Therefore, Plaintiffs would not be allowed to pursue any claim based on adverse health conditions that were allegedly caused by OCPs, other hazardous substances, or construction dust, that Plaintiffs were exposed to at MCBH.

B. Plaintiffs' Fear of Adverse Health Effects

Even though Plaintiffs could not pursue claims based on adverse health effects, they would be allowed to testify about the generalized fear of adverse health effects that they experienced after they learned about the OCP levels in the soil at MCBH. The experience of such fear is within Plaintiffs' personal knowledge, and the description of such fear does not require specialized knowledge. See Fed. R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). However, to the extent this testimony would be based on Plaintiffs' opinions that exposure to OCPs — at the levels which they experienced at MCBH — increased their risk of adverse health effects, Plaintiffs must first satisfy the requirements for the presentation of lay opinion testimony set forth in Fed. R. Evid. 701. Although Plaintiffs' lay opinion testimony could not be considered for purposes of the instant Motions because they failed to establish the requirements of Rule 701, see supra Discussion section I.A.2, if Plaintiffs' OCP-related claims survived summary judgment, Plaintiffs would have another opportunity to establish the Rule 701 requirements before trial.

C. NIED

It is well-established that, under Hawai`i law, "recovery for negligent infliction of emotional distress by one not physically injured is generally permitted only when there is some physical injury to property or [another] person resulting from the defendant's conduct." John & Jane Roes, 1-100 v. FHP, Inc., 91 Haw. 470, 474, 985 P.2d 661, 665 (1999) (alteration and emphasis in John & Jane Roes) (citations and internal quotation marks omitted). In the instant case, Plaintiffs have not presented any evidence that any Plaintiff or any Plaintiff's property was injured as a result of: 1) OCPs or other hazardous substances in the soil at MCBH; 2) OCPs or other hazardous substances in the dust at MCBH; or 3) general construction dust at MCBH.

In John & Jane Roes, the Hawai`i Supreme Court recognized an exception to the general rule that an NIED claim requires a physical injury to person or property because the plaintiffs were exposed to blood that had tested positive for the human immunodeficiency virus ("HIV"). Id. at 476-77, 985 P.2d at 667-68. The supreme court stated:

Id. at 476, 985 P.2d at 667 (some alterations in John & Jane Roes). Plaintiffs argue this exception should also apply to their NIED claims because they were subjected to an increased risk of cancer because of the OCP-levels in the soil and dust at MCBH.

Initially, it is noted that there is no basis to apply the John & Jane Roes exception to the portions of Plaintiffs' NIED claims based upon either: 1) the allegation that OCPs or other hazardous substances in the MCBH soil and dust exposed Plaintiffs to adverse health effects other than cancer; or 2) the general construction dust that Plaintiffs experienced at MCBH. Nor does the John & Jane Roes exception apply to Plaintiffs' claims alleging increased cancer risks because no admissible evidence was presented suggesting that Plaintiffs were exposed to OCP-levels which were so high that their cancer risks were "much more of a real possibility to be feared and far more than a speculative worry." See id. at 476, 985 P.2d at 667. Thus, even apart from the issues addressed supra Discussion section I.A, Plaintiffs' NIED claim would fail as a matter of law.

CONCLUSION

On the basis of the foregoing, Defendants' Motion for Summary Judgment No. 1 based upon Plaintiffs' Inability to Prove a Required Element of their Claims, and Defendants' Motion for Summary Judgment No. 2 based upon Plaintiffs Inability to Prove Damages, both filed May 22, 2019, are HEREBY GRANTED IN PART AND DENIED IN PART. Motion 1 is GRANTED insofar as summary judgment is granted in favor of Ohana as to Counts I and II and in favor of Defendants as to: the remaining portion of Count III; Counts V, VI, VII, and VIII; and the portion of Count XI that is based on the nuisance allegedly caused by contaminated soil and dust. Motion 1 is DENIED as to the portion of Count XI that is based on the nuisance allegedly caused by construction dust, in general and without regard to the contents of the dust.

Motion 2 is DENIED as to Defendants' request for summary judgment on the ground that: 1) the Nuisance Plaintiffs are unable to prove any damages; and 2) none of the Nuisance Plaintiffs' damages theories are viable. Defendants' alternate request for rulings limiting the Nuisance Plaintiffs' damages is GRANTED IN PART AND DENIED IN PART. Motion 2 is GRANTED, insofar as: 1) any damages based on the Nuisance Plaintiffs' rental payments must be supported by the factual basis described in this Order; and 2) Plaintiff's recovery must be reduced by the reasonable rent that they would have paid for other comparable housing during the same period. The remaining requests for rulings limiting Plaintiffs' damages are DENIED AS MOOT, in light of the rulings on Motion 1.

Thus, the only claim remaining for trial is Plaintiffs Kenneth Lake, Crystal Lake, Kyle Pahona, Ryan Wilson, and Heather Wilson's claims asserting that construction dust at MCBH, in general and without regard to the contents of the dust, constituted a nuisance.

IT IS SO ORDERED.