Attorneys representing families sickened by the 2021 Red Hill water crisis introduced a motion in Honolulu's U.S. District Court on Tuesday that alleges that Navy officials "recklessly destroyed " text and phone records between two key officials.
According to the filing, the government says that the official phone of Capt. James "Gordie " Meyer, then-commander of Naval Facilities Engineering Systems Command Hawaii, was "wiped " in spring 2022 during a "tech support incident, deleting all of the text messages, voicemails, and call logs on the iPhone."
Capt. Erik Spitzer, then-commander of Joint Base Pearl Harbor-Hickam, also had his official command phone wiped when he retired in June 2022 and handed command of the facility to Capt. Mark Sohaney, which is standard procedure when a new officer takes over. Lawyers representing the U.S. government said that in both cases the texts are now irretrievable, but lawyers representing the families argue the Navy failed to take sufficient efforts to preserve them when they had the chance.
"This is not an unsophisticated party; the Navy knows it has to preserve evidence," said Kristina Baehr, one of the attorneys for the plaintiffs. "After we filed our first (claims ) in February of 2022, the Navy knew that it had to preserve evidence, and it also knew who the key players were. ... I'm not going to say it was intentional, but it was absolutely reckless."
In response to a request for comment, a Navy spokesman said, "We do not discuss matters that are currently under litigation."
In 2021, fuel from the Navy's underground Red Hill fuel facility contaminated the Navy's Oahu water system that serves 93, 000 people in military housing facilities across southern Oahu as well as former military housing areas that local civilian families now live in. Many reported illnesses as a result of drinking or bathing in the contaminated water, and some say they continue to suffer from ailments two years later.
At NAVFAC Hawaii, Meyer was responsible for overseeing construction and maintenance at Navy and Marine Corps facilities across the Hawaiian Islands. That included the maintenance and operations at Red Hill and on the network of fuel pipelines connecting the underground fuel farm to JBPHH.
In May 2021, after a spill from a pipeline in the Red Hill facility, Meyer testified to state lawmakers that the fuel was "captured and fully contained " and that the "containment system in the lower access tunnel worked exactly as intended." But on Nov. 20, 2021, a pipeline associated with the facility's fire suppression system burst when a worker at the facility accidentally hit one of the pipes.
According to the U.S. Pacific Fleet's investigation, those who responded Nov. 20, including Meyer, could smell fuel in the tunnel where it happened, and reasoned on the spot that fuel from the May spill had likely entered the fire suppression system. The tunnel was near the pump room for the Navy's Red Hill water well.
On Nov. 28, as reports began flooding in from residents on the waterline that their water smelled of fuel, Meyer and a team of other military officials fanned out to houses to smell and sample the water in the homes and at the water storage tanks. By evening most of them believed the fuel smell in the drinking water could be coming from the Red Hill well because the calls were coming in from neighborhoods closest to the water source and shut down the well, but nobody told the public.
Spitzer said in an Nov. 29 email to residents as well as on a Facebook post on the base's account that "I can tell you at this point that there are no immediate indications that the water is not safe. My staff and I are drinking the water on base this morning, and many of my team live in housing and drink and use the water as well."
But by that evening the state Department of Health issued a warning not to drink the water. Army officials also began telling residents in Army housing areas that used the Navy waterlines to stop using the water for any reason until more data was available. On Dec. 5 in a post to the JBPHH's Facebook page, Spitzer told residents that "if there was one day I had a chance to do over, it would be that day."
"I regret I did not tell our families not to drink the water. I am deeply remorseful. My apologies to you all, " Spitzer wrote. "I said in my notification that my staff and I were drinking the water. That was not a cover, we were. We truly thought the testing results indicated the water was safe to drink."
The Pacific Fleet's investigation was deeply critical of decisions by Meyer and others in the immediate aftermath. It's still not entirely clear when or whether Meyer discussed the contamination with Spitzer before he sent the Nov. 29 email, or what Spitzer knew at the time.
According to the motion, Meyer previously said that he used text messages as one of his main ways of communication throughout the Red Hill response because "during the times of, I'll call it, the crisis or emergency, yes, that was a way to communicate to a large amount of people." The motion notes that Meyer "captured two pertinent Red Hill text chains via screenshot which he turned over to investigators, but he did not turn over any regarding the drinking water system which he may have texted about."
The attorneys representing the plaintiffs are asking the court to make an "adverse inference" as a result of the lost texts, essentially asking the presiding judge to assume that those text messages would have negatively affected the government's case and the Navy.
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