2016 08 12 Poma August 12 Testimony Poma

August 12 Testimony: Poma
Page 4, Evidentiary Hearing Transcript, August 12, 2016

PLAINTIFF’S COUNSEL: Good morning, Your Honor. Terry Revere
for the plaintiff.
THE COURT: Good morning.
DEFENSE COUNSEL: Good morning, Your Honor. Randy Whattoff,
Lisa Munger, Christine Terada for defendants. And we're here with
Dennis Poma.
THE COURT: Good morning. Okay. This is our last day for hearing on
this matter. Have we finished with Mr. Poma?
PLAINTIFF’S COUNSEL: No, Your Honor.
THE COURT: Okay. Now, I did -- or was told that you don't have your
witness for today, Mr. Revere.
PLAINTIFF’S COUNSEL: That's correct, Your Honor. He is --
THE COURT: That is unfortunate.
PLAINTIFF’S COUNSEL: It is. And, Your Honor, he is available on
Monday and I've got dates that --
THE COURT: No, no. Today is the last day. I have already given over
nine -- you may be seated -- nine hours to this. It was scheduled for
today. He is your witness and you knew he was scheduled for today, so
the Court does not have time to accommodate him, Mr. Revere.
PLAINTIFF’S COUNSEL: Well, Your Honor, I understand. If I could
just make a comment for the record?
THE COURT: Sure.
PLAINTIFF’S COUNSEL: The reason this hearing has gone on long -- and I think it's reflective in the transcripts – is
because they -- the other side has taken so much time. I think Mr. Smith had about 20 minutes with Ms. Barber and
whatever time, but it was -- I left the last hearing at, like, 10:30 when they
were still doing Mr. Poma. They continued on for some time after that. So
they've had an extraordinary amount of time. We have not.
We only learned on Wednesday that this hearing was going to be reset for
today, and Mr. Chun is off the island and I don't think -- I think it's only fair
that we be allowed to call our witness. He's the only witness we have. We
don't anticipate it taking very long. And whenever we can get him in, we
can get him in, Your Honor.
And I think it's very important because one of our defenses to these claims
that they're bringing is it's the truth. And Mr. Chun can confirm that
everything she said is true, and not just in her mind true, but actually true
on an objective basis. So we do believe that we should be allowed to

PLAINTIFF’S COUNSEL: But when truth is a defense of these allegations
and this is the guy that can show the truth, I think it's only fair that we be
allowed to call him, especially when they have been hogging up the time,
Your Honor, not us.
THE COURT: Mr. Revere, the schedule that was set was we were going to have the testimony ended today and then
Monday you would have your filings. At this point I am off island from Thursday for one month, so I don't see how this is
going to work very well.
Page 1 of 43
Map of the MCBH Family Housing Community, including the Pa Honua III neighborhood & all other MCBH neighborhoods Defendants have
managed since 2006. Defendants lease more than 2,300 homes in thirteen (13) neighborhoods in this community to thousands of military
families, including all the homes in the Pa Honua neighborhood & have done so since 2006. Since 2006, Defendants have been responsible
for ensuing every home in this community is safe & habitable.
PLAINTIFF’S COUNSEL: Well, Your Honor, as I said, I do have his schedule. He is available on Monday and Mr. Smith
texted me his schedule. So he is going to be here on Monday and he'll be here -- I can give you the rest of the dates that
he's not going to be on island, but I don't think it matters in light of Your Honor's schedule. He is available -- he will be
available Monday, Tuesday, Wednesday of next week.
THE COURT: You have to admit, Mr. Revere, it was your responsibility to know his schedule and you didn't. If you had
him here Wednesday, you have would have been able to consult with him. You didn't have him. You clearly didn't check
about his schedule going forward. Mr. Whattoff, what's your position?
DEFENSE COUNSEL: Your Honor, I have a couple things to say. First, I think that the characterization --
THE COURT: You can sit down, Mr. Revere.
DEFENSE COUNSEL: -- of defendants' examinations is totally disingenuous. I mean, to the extent Mr. Poma's examination
went on for longer than an hour, it was because we had numerous foundational objections required us to go back and lay
foundations for things I think were self-evident on record. So I think to the extent there was any delay in yesterday's -- or
Wednesday's examination, it was through no fault of defendants.
We would also add that this idea that Mr. Chun has anything to contribute on the issue of whether what
happened to the soils at Marine Corps Base Hawaii, I think that's totally incorrect. We've already established
through Ms. Barber that Mr. Chun's involvement at Marine Corps Base Hawaii is limited to just one
neighborhood -- that's the Pa Honua III neighborhood. It was not constructed by Ohana. [CB1]Ohana had
nothing to do with the building of that neighborhood. It was a contract between the military and Mr. Chun's
employer and it ended in 2006.
Page 2 of 43
Exhibit 20 is in evidence right now. It's the 2014 presentation that Mr. Chun gave to Ms. Barber, and the first thing -- the
second -- the first bullet is, "I am not a physician or attorney."
The second bullet is, "I was a consultant to the contractor constructing the 212 Housing Project on KMBH from
2003 to 2006." He had no involvement after 2006; he had no involvement in any of the neighborhoods built
by Ohana.
The third point I would just make, Your Honor, is that Mr. Poma has been here now for four days. I mean, it's been a
disruption in his schedule as well. He had an important meeting with the mayor that he had to cancel in order to be here,
so it has been a burden to our witnesses and we think that, you know, although it has been a burden, there's a duty to
comply with the requirements of the Court and I think that we've made great efforts to try to do that, Your Honor.

THE COURT: Thank you.
PLAINTIFF’S COUNSEL: May I respond to --
THE COURT: Yes.
PLAINTIFF’S COUNSEL: Mr. Poma is not a physician. Mr. Poma is not an attorney. Mr. Poma[CB2] wasn't
there for the length of this project either and they were allowed to talk -- to have his testimony come in. So
what's good for the goose is good for the gander.
And I agree, Your Honor, if we have a trial, it's like, okay, you know a year ahead of time, even a month ahead of time,
etc., but because of the length of their things – and they can't say it's because of the objections. We've got the right and
obligation to object when we feel it's appropriate, No. 1.
No. 2, they took an extraordinarily long time with Ms. Barber as well. So they have definitely dominated the
time that we spend here.
And what we're asking for is an hour whenever it can fit into Your Honor's schedule to let this guy testify
because, among other things as we said in the beginning, Ms. Barber never spoke with Mr. Poma. She did
speak with Mr. Chun, so that's what's going in her head is what Mr. Chun is telling her -- Dr. Chun, not Mr.
Poma. But Mr. Poma's testified at length and so we would just ask for an hour to present his testimony, Your
Honor, whenever it's in the Court's schedule.
THE COURT: Mr. Revere, what I think is particularly inappropriate is that the attorneys representing Ms. Barber have not
done the normal course of planning their witnesses. I can't remember somebody coming into court and saying, "I didn't
get the witness I was supposed to have, therefore, you need to continue this."
That is extremely unusual. Attorneys prepare to have their witnesses present. It isn't just -- you know, the reasons that
you have given are all reasons to take the responsibility off you and Mr. Smith for preparing to have your witness present.
That's what's really going on here. You didn't take the time and preparation to consult with your witness to find out when
he was available. That is your fault. Now, I'm not going to hear anything else right now.
Mr. -- Warren?
THE COURTROOM MANAGER: Yes, Your Honor.

THE COURT: What's my schedule on Monday? Thank you. I will hear him at 9:00, Mr. Revere. And I want the record to
reflect that the only reason we have to continue this hearing is because the plaintiffs did not have their witness ready.
That's the only reason.
Now, that being the case, I am going to expect by Tuesday 10 A.M., the papers that I required anyway that are set forth
in the minutes. But make no mistake, I am very clear as to why we have to continue this until Monday and it is the fault of
the attorneys for Ms. Barber for not consulting with their witness and making sure that he was available[CB3].
Now, is there anything anybody else wants to say with respect to this matter that we might have handled after hearing the
last witness but we may have time to hear now so that we can -- I have a very full schedule on Monday and anything you
want to say I would prefer you put it forward now rather than eating into the other cases on Monday.
Page 3 of 43
DEFENSE COUNSEL: Your Honor, there's two things we'd like to
raise. First is that it appears that Mr. Revere is intending to
cross-examine Mr. Poma today. We strongly object[CB4] to
that. Mr. Smith already began the cross-examination of Mr. Poma
and I've -- I haven't been practicing for that long, Your Honor, but
never seen a situation where attorneys switched off in the middle of
the cross-examination and had a different attorney redo the cross-
examination. So we object to that, especially given that Mr. Revere
wasn't in the courtroom for the cross-examination on Wednesday,
and therefore, may not have knowledge of what occurred during
that cross-examination.
The second issue that we wanted to raise -- and this was flagged, I
think, in some of Mrs. Barber's testimony – and that is just there's a
couple of categories we'd like to request. You may recall that Ms.
Barber testified[CB5], for instance, that she's had
communications with current and former residents about
the settlement agreement, and she testified that she
couldn't remember the content of those communications.
And so what we'd like to request is those communications
with current and former residents since the settlement
agreement was entered in.
And in addition, we'd like to request any communications
between her and her attorneys[CB6] related to contacting new
clients for filing new lawsuits. And we don't believe that those --
those document requests should hold up the Court's decision on
preliminary injunction, but we do think when there's briefing on Plaintiff Barber's actual testimony states she does not
sanctions or permanent injunction that those documents would believe she said “undisclosed amount” over & over again.
be relevant to the Court's decision at that time. She further adds that she had no idea that keeping the
amount & terms of the settlement “undisclosed” could be
THE COURT: And that was contacting new clients and what was perceived as a potential violation of their agreement.
the other?
DEFENSE COUNSEL: For the communications between Ms. Barber and Mr. Revere and Mr. Smith. We would
like any communications regarding contacting current or former residents and any communications related
to potential new lawsuits.
THE COURT: The first category that you're talking about is any communication with respect to former and new residents
that involve the attorneys?

DEFENSE COUNSEL: There's two -- let me just --
THE COURT: The first category is anything that Ms. Barber said with respect to the settlement, just anything that's in
writing that she said to the -- about the settlement either on Facebook or any other form. That's the first one, right. And
specifically we're thinking[CB7] her private Facebook messages and her e-mails with former and current residents. That's
the first one.
Okay. And the second one, I'm unclear about you wanting contact between Ms. Barber and Mr. Revere and Mr. Smith with
respect to new clients, but I'm not clear about the other what you're asking.
DEFENSE COUNSEL: Oh, sure. And when I say "new lawsuits," I mean these new clients filing new lawsuits.
And perhaps that second category, that 2B category[CB8], perhaps that's not necessary, Your Honor, but I
just wanted to make sure it's clear sort of what we're looking for with regard to communications between
the Smith firm, the Revere firm, and Ms. Barber.
THE COURT: And in the second, the 2B, you're asking for anything that dealt with new lawsuits not with Ms. Barber, but
other people.
Page 4 of 43
DEFENSE COUNSEL: Correct.
THE COURT: New clients.
DEFENSE COUNSEL: Correct, Your Honor.

THE COURT: Okay. Mr. Revere?
PLAINTIFF’S COUNSEL: Well, Your Honor, a couple
things. I guess what we've heard loud and clear -- I
get it -- is that we're not re-litigating the old
lawsuit -- in other words, basically issuing
discovery[CB9] requests to us.
One of the concerns I have is we're very interested in

documents that they have sent to the State of
Hawaii. I've asked Mr. Whattoff about four
times now in e-mails, Please produce all
documents with the State of Hawaii.
He just misrepresented[CB10] to me -- and I hate
to say it, but it's true -- that they produced all
documents they've given to the State of Hawaii.
We know for a fact that's not true. And so we've
asked repeatedly, Please give us all
communications with the Department of Health
since October of 2015. We've asked and asked
and asked. They finally produced a couple of
them, but there's other documents that we
know are out there that they've not produced.
So we would ask if they're going to have
discovery, they produce all of those documents,
meaning all of those documents. Because, for
example, Your Honor, the attorneys here asked
Mr. Sadoyama who's the head of the
Department of Health to sign an affidavit[CB11]
in favor of this motion. Mr. Sadoyama refused to
sign their declaration. We've asked and asked
and asked, "Well, what did you ask him to sign?
Give us all these communications. Give us the
communications." They don't produce it.
So if we're going to be asked to do this -- and, Your
Honor, I'm not sure because I'm a little bit fuzzy on
what exactly they want -- but if this is
communications between Ms. Barber and us,
then there might be a privilege issue. If it's about
some other things that doesn't have to do with
privilege, I guess that would be okay. I'm not sure it
exists, but I don't think they do, at least as far as I'm
concerned. But we'll get them. But I'm not sure what
would the deadline be for both sides if we're going to
be allowed to get their documents as well.
The above & following images reflect & discuss the IMPORTANT differences
Page 16, Evidentiary Hearing Transcript, August between the Declaration Defendants’ drafted & asked Eric Sadoyama (HDOH
12, 2016 HEER Office) to sign verses the Declaration Mr. Sadoyama drafted & agreed to
sign. Mr. Sadoyama refused to sign Defendants’ draft, but drafted another
THE COURT: Okay. Let's be a little clearer about what version he was willing to sign. Yet, Defendants had no interest in his draft.
we're talking about here, Mr. Revere. Mr. Revere, let's be a little clearer here.
Page 5 of 43
PLAINTIFF’S COUNSEL: Oh, I'm sorry.
THE COURT: I -- you know, Mr. Whattoff has asked
for matters, first of all, that Ms. Barber testified that
she had other contact not on Facebook, but on private
Facebook and e-mail, about the settlement with other
people. And that seems to me to be relevant [CB12]to
what we are looking at in the motion for an injunction.
Do you have an opinion with respect to that or was
that what you just said in agreement with that?
PLAINTIFF’S COUNSEL: Yeah, I don't think -- well,

I guess I've got a substantive position and a
procedural one. Substantively, if that's what their
motion's about, I could see doing a request for
production and -- or having them produce it. If it's
not privileged, she's got to produce it. So I don't have
a substantive, I guess, objection to that, Your Honor.
Procedurally I just don't know when and are
we going to get things we want. That's what the
concern is.
THE COURT: These are -- we're going to handle this
one issue at a time. So you are in agreement, you're
not objecting to these conversations that Ms. Barber
had either in e-mail or in private Facebook with
respect to the settlement?
PLAINTIFF’S COUNSEL: That is correct.
THE COURT: Yes.
PLAINTIFF’S COUNSEL: And my only concern is,
as I -- again, I don't know about how fast we can get
it, but I'm willing to make whatever efforts we need
to.
THE COURT: Okay. Now as to No. 2, the -- they're
asking for communication, written communication in
whatever form, between your -- you and Mr. Smith as
to new clients and new lawsuits.
PLAINTIFF’S COUNSEL: Uhm, okay. And again,
I just don't -- one, I don't know if any exists or not
with metaphysical certitude with regard to Mr. Smith,
and for example might be something about this
lawsuit and, Oh, Joe Blow who contacted you
three years ago wants to talk to you. I don't
know if those things exist or not with regard to Mr.
Smith's files, so it might be some things that are
privileged and some things that are not. So I
guess we can take that up if we find anything and
we'll deal with it at that time.
THE COURT: Okay. And that's what you're asking for, Mr. Whattoff?
DEFENSE COUNSEL: Yeah. Just one minor point of clarity, Your Honor. That is, I think Ms. Barber has also had
conversations with other attorneys in the office. So it's the firms themselves, not just Mr. Revere and Mr.
Smith. I think most of the communications would be Mr. Smith, but I think there's another attorney, Ms.
Lam, who have had communications as well.
Page 6 of 43
THE COURT: So communications with the law firm
between Ms. Barber and the law firm concerning new
lawsuits and new clients.
DEFENSE COUNSEL: Yeah, correct, Your Honor.
PLAINTIFF’S COUNSEL: And Your Honor, I would, of
course, read it that broadly, so there's not an issue
there.
THE COURT: Okay. Now, in terms of dates for this,
Mr. Whattoff, so I would assume it would start from
the settlement date to what date?
DEFENSE COUNSEL: That's correct, Your Honor.
Settlement date to present, Your Honor, is what
we would request.
THE COURT: For both?

DEFENSE COUNSEL: For both, yes.
THE COURT: Okay. Now, let's turn to what you want,
Mr. Revere. You want anything that has gone
between the defendants and the Department of --
State Department of Health. And what is your time
frame?
PLAINTIFF’S COUNSEL: Oh, that would be after
October of 2015 until the present.
THE COURT: Okay. Now, what's the reason for those
things? Because we only have two matters before us
with respect to this hearing and with respect to the
hearing for the permanent injunction and that is with
respect to the settlement and with respect to the non-
disparagement clause. How do they fit -- how do those
documents fit into either of those categories?
PLAINTIFF’S COUNSEL: Extremely reasonable
questions, Your Honor. The problem is -- or the issue
is that while Ms. Barber was being cross-
examined, Mr. Whattoff asked her a series of
questions like, "Don't you understand it's the
State of Hawaii's position that X? Don't you
understand that the State of Hawaii's position
is Y?"
Then when they originally filed this motion they
wanted Mr. Sadoyama to file a declaration in
support of their position in the form that they
sent it to him. He refused. And we think it's
important, say, "What did you want this guy to
sign? What did he actually sign? What are the
differences and where are all these
documents?" Because it goes directly to their
attack[CB13] that it's not -- that they're trying
to represent that the state is on their side, the state thinks this is safe, when it's not true. And that's the
questioning they were putting to the witness.

THE COURT: Mr. Whattoff?
Page 7 of 43
DEFENSE COUNSEL: Thank you, Your Honor. You
know, we got this request from plaintiff on Monday,
and what we produced to them, we were very clear
about what we were producing to them was
any communications that we had had with the
Department of Health about confirmation
sampling[CB14]. We provided all those
communications to them about confirmation
sampling. We did that very quickly, Your
Honor, given that it was requested on Monday
and we provided it on Tuesday and Mr. Poma
testified on Wednesday. So we did our best
efforts --
THE COURT: And what's the time frame of what you
gave him?
DEFENSE COUNSEL: I believe we weren't -- I
think it's April of 2016 to maybe June of 2016.
We weren't limiting it in a specific time frame, but
that's when we had conversations with Department of
Health about confirmation sampling. The
declaration that Mr. Revere is referring to
doesn't relate to confirmation sampling[CB15].
We were going to provide a declaration in
support of our motion. We ultimately didn't
think it was necessary.
I think Mr. Revere has mis-portrayed[CB16] this
to the extent that he claims that Mr. Sadoyama didn't sign the declaration. We made a proposed declaration
to the Department of Health. As you would expect, Mr. Sadoyama made changes to a declaration, as any
witness would, given so that it comports with his understanding and knowledge, and then Mr. Sadoyama
signed the declaration. It sounds like plaintiffs have a copy of that.
We could provide a copy of that declaration if they don't have it. They're also always welcome to obtain it from the
Department of Health. So we don't have any objection to producing documents about confirmation
sampling[CB17]. Documents that aren't on that issue, we don't think they're relevant, Your Honor.
PLAINTIFF’S COUNSEL: Your Honor, just to be clear, in bold after the third or fourth attempt, I wrote, "Randy, we've
repeatedly asked for all communications between your firm and your client with the DOH since September
15th, 2015. Are there any written communications between your firm or client and the DOH?" question mark
in bold.
And then he represented, "No, just the stuff we already gave you." So it -- and I'm -- I'll read it, Your Honor. I've
got a copy right here[CB18].

THE COURT: No, don't, because I want to contain this into what is actually before the court, and I hear things that I am
not clear about being related to what's before the court. And my feeling is that if at the time of the permanent injunction
you want to call somebody from the Department of Health, you want to call this particular person and either side wants to
call this -- somebody from the Department of Health and discuss that at that point in time, that is fine. But I don't see how
what has happened since the settlement – unless it is directly related to the speaking about the settlement or a non-
disparagement, and I'm not seeing the relationship.
PLAINTIFF’S COUNSEL: Yeah. I think -- well, Your Honor, I think it's because when he's asking questions, these guys
are smart cookies. They ask questions for a reason. They're asking a question to Ms. Barber saying all the big implications,
trying to put in your mind the State of Hawaii actually agrees with us. The State of Hawaii does not agree with them,
and they're trying to do that. They're asking her these questions, "Don't you realize that the State agrees
with us? Ergo, you're lying when you put this stuff out saying it's unsafe." But then they try to get this guy
to sign the declaration and he refused.
Page 8 of 43
THE COURT: But that is something that you can do by calling somebody from the State of Hawaii putting forth something.
But the idea of everything that's happened since the settlement being relevant, no, it's not, and I'm not going to all outdoors.
We're not doing that.
So if you think that there is something relevant with respect to this particular issue -- these two issues, that's fine, but I'm
not[CB19] going to go into -- what Mr. Whattoff is asking is directly relevant. What you are asking is possibly in some form
relevant, and you're going to have to show me how that is. And you can do it by calling a witness, and the witness says
something, then maybe it becomes relevant. Right now it's not.
PLAINTIFF’S COUNSEL: All right. Thanks, Your Honor. Just for the record, I will take up Mr. Whattoff on his
representation that they'll provide us whatever draft declarations[CB20] were given, and we ask that they be
produced before Monday.
DEFENSE COUNSEL: That's fine, Your Honor. We do object as well to Mr. Revere examining Mr. Poma given
that a different attorney had already begun this cross-examination.
THE COURT: And why is this something that has occurred, Mr. Revere?

PLAINTIFF’S COUNSEL: Your Honor, I can personally represent to you that -- direct knowledge -- Mr. Smith was in the
office yesterday coughing and hacking miserably. I know he did go see a doctor and he texted me this morning that he's
got a temperature of 101 to 102.
I don't want to question Mr. Poma. It's definitely my game plan to let Mr. Smith run with this. And I don't -- again, famous
last words when it comes to lawyers, especially in this case -- I don't anticipate taking more than an hour subject to, you
know, objections, whatever on Mr. Poma. And so I'm prepared to proceed.
And, Your Honor, I did review the transcript. I'm not going to be going over old ground that was already covered under Mr.
Smith's cross-examination.
THE COURT: Okay. It is unusual, but given your reason, I will allow it.
PLAINTIFF’S COUNSEL: Thank you, Your Honor.
THE COURT: Mr. Poma, if you could take the stand, please. I remind you, Mr. Poma, you're still under oath.
PLAINTIFF’S COUNSEL: Your Honor, is it all right if I do the examination from here?
THE COURT: Yes.
PLAINTIFF’S COUNSEL: You mentioned in your testimony on direct that you look at recent data provided by the
Department of Health in the course of your normal business, correct?
DEFENSE COUNSEL: Object. Vague and ambiguous.
THE COURT: Yeah. I don't know what you're talking about.
PLAINTIFF’S COUNSEL: Okay. Do you recall testifying under questioning from Mr. Whattoff that you keep abreast of
what the State of Hawaii's positions are?
DEFENSE COUNSEL: Same objection.
THE COURT: About what?
PLAINTIFF’S COUNSEL: I'm sorry?
THE COURT: About what?
PLAINTIFF’S COUNSEL: About issues involving your field of work, about the handling of hazardous
materials, all of that.
MR. POMA: I'm not sure I understand your question exactly.
PLAINTIFF’S COUNSEL: Okay. Have you been provided a copy of the transcript of your last testimony?
Page 9 of 43
MR. POMA: No.
PLAINTIFF’S COUNSEL: Okay. Do you recall testifying that you keep
abreast of recent data provided by the Department of Health?
DEFENSE COUNSEL: Same objection, Your Honor.

THE COURT: Okay. Just a second. I'm not getting the -- it's not -- it's not coming
through.
(Brief pause in the proceedings.)
THE COURT: Go ahead and ask your question again. I'm sure -- please see how
it is.
PLAINTIFF’S COUNSEL: (BY PLAINTIFF’S COUNSEL:) Yeah. In the course of
your work do you look at publications by the State of Hawaii's
Department of Health?
THE COURT: No. What happened?
THE COURT: Okay. We're going to take a 5-minute recess while you folks figure
this out.
THE COURT: Okay. We are back on the record with the attorneys previously
present present once again. Mr. Revere is inquiring. Mr. Poma, I remind you you're
still under oath. You may continue.
PLAINTIFF’S COUNSEL: Thank you, Your Honor. I think I tried to ask the same
question three times. I'll give it one more shot. You stay current with State of
Hawaii Department of Health publications, correct?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. And you're aware from their website that
they still list these Marine Corps Base neighborhoods as hazardous sites,
correct?
DEFENSE COUNSEL: Object. Vague and ambiguous. Hearsay.

THE COURT: I think that's -- I'm going to sustain the objection because clearly
there are hazards on there underneath several feet of soil[CB21], but the idea of
them just being listed, perhaps you could ask a more pointed question, Mr. Revere.
PLAINTIFF’S COUNSEL: Okay.
PLAINTIFF’S COUNSEL: You're aware of the fact that the State of Hawaii
keeps a list of hazardous sites, right?
DEFENSE COUNSEL: Object. Vague and ambiguous as to "list."
THE COURT: Yeah. Perhaps you could be a little clearer, Mr. Revere.
Hawaii Department of Health's Hazard
PLAINTIFF’S COUNSEL: Okay. You're aware that they maintain a Evaluation & Emergency Response Office's
website of hazardous sites[CB22], and by that I mean sites contaminated Site Discovery and Response (SDAR)
Brochure explaining the annual one-page
with pesticides, correct? reports they publish for each known
contaminated site in Hawaii
DEFENSE COUNSEL: Same objection.
THE COURT: I'll allow that.
Page 10 of 43
THE WITNESS: Yes, I'm aware of their database.
PLAINTIFF’S COUNSEL: Okay. And the database is public, correct?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. And these neighborhoods that we've been
talking about are listed on the database which is public, correct?
DEFENSE COUNSEL: Object. I'm still not clear what database we're talking about,
Your Honor.
PLAINTIFF’S COUNSEL: What do you call the database that the state
maintains?
MR. POMA: There's a release database that they maintain for listing sites.
PLAINTIFF’S COUNSEL: For what sites?
MR. POMA: Listed sites.
MR. POMA: Throughout Hawaii.
PLAINTIFF’S COUNSEL: And are these neighborhoods on Marine Corps Base
Hawaii listed currently?
MR. POMA: I haven't looked recently, but if you have something that you
could point to maybe and show me a particular neighborhood, I could answer
the question.
PLAINTIFF’S COUNSEL: Okay. Have you ever gone and seen whether they're
listed or not?
MR. POMA: I haven't paid attention to that, no, because I don't consider
it a release site.
PLAINTIFF’S COUNSEL: Okay. I think we covered this off the record, but I better
do it on the record -- not off the record, but you weren't on the stand. You are not a
toxicologist; is that correct?
MR. POMA: That's correct.

PLAINTIFF’S COUNSEL: And you're not a scientist; is that correct?
THE COURT: Sustained.
PLAINTIFF’S COUNSEL: Okay. Well, do you consider yourself to be a scientist
SDAR contaminated site reports for
of any kind, like an astronomer or a chemist or something like that? Defendants’ MCBH family housing
THE COURT: It's sustained, Mr. Whattoff. I don't know what you mean by a scientist, neighborhoods produced by the Hawaii
you know, Mr. Revere. Perhaps you could refine your question. Department of Health (HDOH) Hazard
Evaluation & Emergency Response
PLAINTIFF’S COUNSEL: Okay. Well, do you recall in response to one of the (HEER) Office in January 2016.
Court's questions you said, "Well, scientifically the chemicals don't attach to slabs"? Do you recall giving a
response like that?
DEFENSE COUNSEL: Object that that misstates his testimony.
THE COURT: Perhaps you could ask a question more directly because, you know, we could spend a great deal of time
deciding what a scientist is, Mr. Revere.
PLAINTIFF’S COUNSEL: Fair enough.
Page 11 of 43
THE COURT: It's not really getting us anywhere.
PLAINTIFF’S COUNSEL: Fair enough. Are you a toxicologist?
MR. POMA: No.
PLAINTIFF’S COUNSEL: Okay. And you're not a medical physician, correct?

MR. POMA: No.
PLAINTIFF’S COUNSEL: Okay. And in your job you meet routinely with the
Department of Health, correct?
PLAINTIFF’S COUNSEL: Okay. And you attended meetings with the attorneys
that are here with the Department of Health, correct?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: And the -- and when was your last meeting with them?
MR. POMA: I think we covered that in testimony the other day. On May 27th.
PLAINTIFF’S COUNSEL: Okay. And the -- and were you discussing soils
management planning in that meeting?
MR. POMA: No.[CB23]
PLAINTIFF’S COUNSEL: Okay. You were discussing testing in that meeting?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. The soils management plan for this base, just
so we're clear here, covered not only construction activities, but as well as
management activities, correct?
MR. POMA: Yes[CB24], it does.
PLAINTIFF’S COUNSEL: Okay. And by management, that's sort of a on-a-go-
forward basis when folks are living there, correct?
MR. POMA: To cover the ground lease, yes.
PLAINTIFF’S COUNSEL: The what?
MR. POMA: The ground lease term, yes.
PLAINTIFF’S COUNSEL: And how long is the ground lease term?
MR. POMA: Fifty years.

PLAINTIFF’S COUNSEL: Okay. And I wasn't clear on your testimony. Were you there or not for construction work
on the Waikulu neighborhood?
MR. POMA: I was there for the end of it.[CB25]
PLAINTIFF’S COUNSEL: And by "the end," do you know -- like, can you give us a ballpark estimate as to how
much you were there for?
MR. POMA: It was about just under a year.
PLAINTIFF’S COUNSEL: Okay. And do you know how much that was in terms of your time versus the time that
construction work was going on?
Page 12 of 43
MR. POMA: They started in, like, 2007, I believe, on Waikulu.
PLAINTIFF’S COUNSEL: Okay. Dust control was part of the soils
management plan, correct?
DEFENSE COUNSEL: Objection, Your Honor. Relevance. I think we already
confirmed on Wednesday that these topics were not relevant to this issue.
THE COURT: Yes.
PLAINTIFF’S COUNSEL: Your Honor, may I make an offer?
THE COURT: Yes.
PLAINTIFF’S COUNSEL: If the dust -- well, let me back up and lay some foundation.
Some of this work would be going on -- there'd be occupied homes right
next to job sites, correct?
THE COURT: Yes.

PLAINTIFF’S COUNSEL: Okay. Were there -- well, by job sites, we're
referring to the discussion of this soils management plan. Okay? That's what
I mean by job site. Okay?
THE COURT: Okay. Why don't we go to sidebar and you tell me what you're trying
to do, Mr. Revere, because I am totally unable to discern what it is you are doing.
(Sidebar conference:)
THE COURT: Okay. What is it that you are trying to get out? What information are
you attempting to elicit? This is -- come over here.
PLAINTIFF’S COUNSEL: The concern that we have is that they're saying that the -- "The neighborhoods are
clean because we executed the soils management plan." Now, they've got people living right next to these
sites that are getting inundated with dust, so I'm assuming maybe -- correct me if I'm wrong -- that by the
time they have the homeowners living in a particular home, it is, quote, "clean" or remedied or whatever
their position is, but they're right next to things that aren't remedied and the dust is blowing in.
And part of the plan is so now you have something that they will say was clean. The dust[CB26] blows in; now it's dirty
again, and there's been no testing of that, and that's why it's still relevant to this day because it's a
management plan.
When you have contaminations going from one lot to the next lot right next door, it's highly relevant because
it shows they didn't follow the plan. That's the other thing.
THE COURT: What are you trying to get out?
Page 13 of 43
PLAINTIFF’S COUNSEL: He's saying that, "Oh, I'm there every day. I'm working on this. It's clean. I watched
everything."
Ms. Barber's saying, "I was there. Dust is blowing into my
house," and she's got photos of houses across the street.
He's saying, "We execute the plan. Everything's clean."
She's saying, "No, it's not. There's dirt."
So I'm just trying to establish for him to agree that there was clean --
according to him, clean, pristine, wonderful homes perfectly
clean right next to a hazardous dust site where the dust is
blowing in, and no one's going back and looking at that
supposedly remediated home. And their whole game plan is,
"Because we followed the management plan, it's not dirty,"
and they didn't follow the management plan. These homes are
like they leveled the whole neighborhood, there's people
living right next door to it, and that's what the concern is
because they were not following the management plan.
THE COURT: Mr. Whattoff.

DEFENSE COUNSEL: Your Honor, that has nothing to do with
any of the statements in what Ms. Barber's currently made in
her blog or Facebook page. That's not what we're getting here
today, nor is the testimony that Mr. Revere is trying to give
and put into the record of this hearing as to foundation.
S o I think we've already established that none of this is
relevant for Your Honor's hearing.

THE COURT: Mr. Revere.
PLAINTIFF’S COUNSEL: Thank you. With regard to that last thing,
there is testimony and she's got blogs, she's got photos of,
you know, nice looking suburban house right next to a site
with dust mounded up, and she's got another photo of dust
inundating her screen. They were not following the plan.
They said, "Yes, everything's clean 'cause we followed our Photos Ms. Barber took of one of Defendants' hazardous
project sites next to her families’ MCBH home. Two of
plan," and what I want the record to establish is that we're these photos depict the excessive fugitive project dirt, dust
not talking about levelling entire neighborhoods and no one & debris that accumulated on Ms. Barber's window & in
is near these places; they're right on top of these her window screen.
neighborhoods, they're jamming people in, and as soon as they declare something safe, they jam people in
and are working on the lot right
next door, and they didn't follow
the plan.
And they can't come in here and say,
"Oh, yeah, we followed the plan.
Everything's wonderful," and not
let us ask, "Well, what about
this? What about that?" So that's
our offer, Your Honor.
Photo Ms. Barber took of 1 of Defendants’ hazardous project sites next to her MCBH home, from
upstairs window.
Page 14 of 43
DEFENSE COUNSEL: Your Honor, this just has nothing to do with the current proceeding. We haven't raised
any issues, comments about dust.
The reason that -- I mean, dust is there. [CB27]Dust wasn't even relevant in the
underlying proceeding, Your Honor. Because they were trying to proceed as a class
action, dust would have a different impact on individuals. So not only was it not relevant
then, it's not remotely relevant now. We haven't challenged any statements about
dust from Ms. Barber. Her statements haven't been about dust[CB28].
PLAINTIFF’S COUNSEL: Well, they've been about dust, No. 1, and I've heard
multiple times --
THE COURT: Let me stop you for a minute. I'm trying to follow what you are
attempting to establish, and correct me if I'm wrong, but you want to say that because
there was dust in the air, then her statements are true, 'cause that's what we're talking
about here, whether they are defamation -- defamation, or whether they are
disparagement, whether they were untrue because there's dust in the air, and we're
contrasting that to saying that there are 20 times as high a level as the Tier 1. Is that
what you're trying to do?
PLAINTIFF’S COUNSEL: No.
THE COURT: Because I'm having difficulty --
Both photos show the same white
PLAINTIFF’S COUNSEL: Sure. house across the street from the
Barbers’ MCBH home. The 1st photo
THE COURT: -- seeing the relevance of the small questions that we have here to your was taken in 2010 & the 2nd in 2011,
overall theory, Mr. Revere. showing 2 of Defendants’ yearlong
hazardous project sites within just a
PLAINTIFF’S COUNSEL: Right. And I think the difficulty is 'cause they're few feet of her neighbors’ MCBH home.
challenging five or so different statements. One of the statements that they are saying is that she's saying,
"There's contamination in these neighborhoods," and they're saying, "That's false because we followed our
management plan," because she knows they didn't follow the management plan[CB29].

THE COURT: Okay. See, here's the problem, you know,
and you've used "contamination" in this context in a way
that really isn't for example, true. You know, you've
asked Mr. Poma whether or not there is contamination in
these particular locations that are listed. Well, when you
bury pesticides, it's there. Everybody knows it's there and
you want to keep track of it, so it's listed. And the
representation is it is buried under clean soil. And the
idea that it is listed as a contaminated site is a protection
that is provided so that those things weren't forgotten
and somebody doesn't go over with a bulldozer in ten
years, stir it all up, level it out, and build.
So it -- using the term "contamination" in such a broad
way is not helpful, and talking about possible maybe
clean top soil blowing, maybe it was contaminated
soil. I don't know[CB30]. It doesn't -- there isn't
anything that you're putting forward in these questions
that help with the kind of precision that we need when
we're dealing with things that are controlled and Photo Ms. Barber took of one of Defendants' hazardous project sites from
measured and dealt with. The idea of throwing around an upstairs window revealing accumulations of fugitive project dirt, dust &
this statement "contamination" in such a broad way isn't debris in her window screen
helpful.
PLAINTIFF’S COUNSEL: Okay. Your Honor, I totally get it, and you're right. Parts of the plan -- and I understand what
Your Honor's saying about the burial pit -- but part of that same plan is you will not allow fugitive dust to leave
job sites, but it did. It's part of the same plan. It's part of they didn't follow the plan. They're saying they
followed all the plan. They didn't follow the dust controls.
Page 15 of 43
THE COURT: Let me ask you questions that are actually related to what you're saying right now: Did you observe dust
from the actual contaminated soil? What did you observe was on about this? These broad general questions would lead us
to be here all day.
THE COURT: If you want to ask him whether there's fugitive dust that could have gone to other places and what's the
nature of the dust in the air, etc., what measures were taken, I mean, let's be more precise and scientific in our questions.
PLAINTIFF’S COUNSEL: Thank you.
(Open court.)
THE COURT: Mr. Revere.
PLAINTIFF’S COUNSEL: I'm sorry, Your Honor.
THE COURT: You may inquire.
PLAINTIFF’S COUNSEL: Thank you. Mr. Poma, was there fugitive dust that left job sites?
DEFENSE COUNSEL: Objection. Vague and ambiguous.
THE COURT: Let's establish a time, a place, what you mean by fugitive dust.

THE COURT: Because we've just talked about there's dust
everywhere. The world is full of dust.
PLAINTIFF’S COUNSEL: Okay. Have you heard of that phrase
"fugitive dust" in the construction industry?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: What does that mean to you?
MR. POMA: It means that there's a nonpoint source admission of
particles.
PLAINTIFF’S COUNSEL: Okay. And did you see using your definition
-- and you mentioned that you would attend and watch these
construction activities at Marine Corps Base Hawaii, correct?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Did you ever see fugitive dust leave a
job site? Photo Ms. Barber took of Defendants' neighboring,
hazardous project site as seen from an upstairs window in
MR. POMA: Not to my knowledge, no.[CB31] her MCBH home. This photo reveals the extensive
accumulation of fugitive project dust on the window sill of
her asthmatic child’s bedroom window.
PLAINTIFF’S COUNSEL: Okay. And so it never happened?
DEFENSE COUNSEL: Objection. Calls for speculation. Foundation.
THE COURT: Yes. That's not -- you know, that's not a question that you can ask, Mr. Revere. Let's get serious here.
PLAINTIFF’S COUNSEL: Okay. Well, Your Honor, I apologize if I don't seem that I'm being serious. I'm trying my best,
Your Honor. But you were not on the job site every day during the time period of construction at Marine
Corps Base Hawaii, correct?
DEFENSE COUNSEL: Objection. Asked and answered, Your Honor.

THE COURT: Okay. I'm not going to -- we don't have time for this, Mr. Revere. Mr. Poma, what steps were taken to deal
with dust and what are the possibilities that they were ineffective on occasion?
Page 16 of 43
MR. POMA: During numerous steps that they took throughout construction, most of it was watering through
either water trucks or point -- control with hoses at the point of application. Contractors used bottom coats
over top of various parts of the site and stockpiles. For example, certain stockpiles would maybe be grassed
if they were going to be for a long time. We also had sprinklers that would temporarily be placed on certain
areas to have routine watering of the areas[CB32].
THE COURT: What about with respect to the ones that -- you know, what parts are treated differently when it was just
top soil or whether it was something that was within -- under the slab or within two feet that you presume to be
contaminated?
MR. POMA: Yeah. In those cases it was mostly the hose streams and the water trucks during the removal process[CB33].

THE COURT: And is there a possibility that there were times when it was not controlled and there was dust blowing
through the project[CB34]?
MR. POMA: During high winds it is possible, yes, and the state requires that you take reasonable steps to
keep it to -- to keep it on site.
THE COURT: And what is the possibility that that would contaminate the area and spread the contaminated soil
throughout the development?
MR. POMA: Well, I mean, given the controls, it's not to say it's not a possibility. Obviously there's a
possibility because of environmental high winds and such. But, I mean, I think from this particular issue and
having been in public meetings with, like, the state, the hearings on this, typically dust in these
circumstances are very short-term duration, if there is one at all, and that it is not considered -- or is not a
concern generally and as long as you take reasonable precautions to control the dust.
THE COURT: Why wouldn't it be a concern if it is contaminated soil?
MR. POMA: It's at -- it would be at insignificant levels. The amount of material actually leaving a site or a
boundary would be pretty low, as well as just a short-term exposure period from a risk standpoint, and there
would also have to be a receptor immediately, you know, wherever it is, it's the pathway of the dust.
THE COURT: Okay. So we've established a foundation.

Is there anything else you want to ask in this area, Mr.
Revere?
PLAINTIFF’S COUNSEL: Yes. Thank you, Your Honor.
Among the -- you mentioned precautions and
controls for dust?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Would that include
dust[CB35] fences?
MR. POMA: Yes, that's correct.
PLAINTIFF’S COUNSEL: Were those always up?
MR. POMA: Yes.
Photo Ms. Barber took of another of Defendants' hazardous project sites
PLAINTIFF’S COUNSEL: Okay. Do you have Exhibit in their densely populated MCBH family housing community. While driving
43 before you? through Nani Ulupau, Ms. Barber took this photo of large mounds of
uncovered & unlabeled project dirt in the Ulupau neighborhood that were
MR. POMA: In which binder? several feet taller than the “dust fence.” Correspondence from Defendants
admits they knew fugitive dust from the Ulupau project impacted
residents & homes in the Ulupau, Nani-Ulupau, Mololani & Kanluapuni
THE COURT: This is Plaintiff's Exhibit 43? MCBH neighborhoods.
PLAINTIFF’S COUNSEL: Yes, Plaintiff's Exhibit 43.
THE WITNESS: This one only goes to 38.
Page 17 of 43
THE COURT: Okay. I believe it is loose and -- because it came in after, right?
PLAINTIFF’S COUNSEL: Yeah. Yes, Your Honor.
THE COURT: You need to --
PLAINTIFF’S COUNSEL: I've got a copy if the witness needs it.
THE WITNESS: Okay. There it is.
THE COURTROOM MANAGER: You got it?

THE WITNESS: Okay.
THE COURT: I'm not sure I have a copy. Okay. Thank you.
PLAINTIFF’S COUNSEL: May I proceed?
THE COURT: Please.
PLAINTIFF’S COUNSEL: This document, this is something you
prepared, correct?
PLAINTIFF’S COUNSEL: And there's a photograph on the front page of this
document?
PLAINTIFF’S COUNSEL: Do you see a dust fence there?
MR. POMA: It's not in view of the photo, no.
PLAINTIFF’S COUNSEL: Well, then whoever's taken the photo in one of these
high winds, there'd be no dust screen to protect them from the dust, correct?
MR. POMA: I don't recall where this area was. The perimeters of the site have
dust fencing.
PLAINTIFF’S COUNSEL: I'm sorry. What?
MR. POMA: The perimeters of the site have dust fencing.
PLAINTIFF’S COUNSEL: And is it fair to say that from time to time dirt gets
mounded up and it's higher than dust fences at the site – at the job
site?
THE COURT: I'll allow you to answer it. Do you understand the question?
MR. POMA: Yes. The practice was to maintain the piles at the height
below the[CB36] fences.
PLAINTIFF’S COUNSEL: Okay. And so if there's photographs -- for example, Photos Ms. Barber took of Defendants' multiple
photographs on Ms. Barber's blog that shows soil above the height of hazardous project sites while driving through the
community. Clearly, Defendants’ supposed
the fence, you just don't have an explanation for that, correct? “dust fences” did not serve their intended
purpose, if any at all.
DEFENSE COUNSEL: Object. Foundation. Assumes facts not in evidence.
Page 18 of 43
THE COURT: You're --
PLAINTIFF’S COUNSEL: I'll back it up, Your Honor. I'll
back it up. Have you ever gone to Ms. Barber's website?
MR. POMA: No, I have not.[CB37]
PLAINTIFF’S COUNSEL: Have you ever seen -- has
counsel or anyone from Forest City ever shown you
photographs that she's taken?
MR. POMA: No.
PLAINTIFF’S COUNSEL: Have you ever seen any of the
news reports that showed photographs that she's taken?
MR. POMA: No.
PLAINTIFF’S COUNSEL: Okay. All right. Can you go to
Exhibit 42 which should be in the same area of the binder?
Photo Ms. Barber took of one (1) of Defendants' hazardous project sites
MR. POMA: Okay. that was next to her & her families’ MCBH home
PLAINTIFF’S COUNSEL: Okay. This is I think you called it in your testimony a DDQO?

MR. POMA: No.
PLAINTIFF’S COUNSEL: No. Okay. What do you call this?
MR. POMA: A DQO.[CB38]
PLAINTIFF’S COUNSEL: Okay. I'm sorry. But this is a draft? That's why I added the extra D.
MR. POMA: Okay.
PLAINTIFF’S COUNSEL: Okay. And you wrote this document?
MR. POMA: I did.
PLAINTIFF’S COUNSEL: And in the second paragraph down it says, "Certain plaintiffs filed a lawsuit in 2014," and
then you put in parentheses "since dismissed." Do you see that?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: How'd you get that
information?
DEFENSE COUNSEL: Your Honor, I'm just going to
object to relevance and already covered on Wednesday.
PLAINTIFF’S COUNSEL: It wasn't covered.
THE COURT: Was this inquired about on Wednesday?
PLAINTIFF’S COUNSEL: No.
THE COURT: I'm not sure. Where are we on this page?
PLAINTIFF’S COUNSEL: I'm sorry, Your Honor. This is
in the middle of the paragraph.
THE COURT: Which? First paragraph?
PLAINTIFF’S COUNSEL: I'm so sorry.
Page 1 of Defendants' DBQ
THE COURT: I'm looking at 42. Where are you?

Page 19 of 43
PLAINTIFF’S COUNSEL: Oh, yeah, 42, the middle paragraph of the first box, Your Honor, that starts with "Certain
plaintiffs."
DEFENSE COUNSEL: Your Honor, we object to this line of questioning. It appears to be the same line of questioning that
was began on Wednesday where plaintiffs inquired about the substance of the DQO and what type of testing was going to
be performed. We don't think that's relevant to the current proceeding because the allegation that's been
made by Ms. Barber is that Ohana refused to perform testing. This document just shows that it's not refused, but
the specific type of testing I do not think is relevant to this proceeding.
THE COURT: What occurred -- were you here then, Mr. Revere?
PLAINTIFF’S COUNSEL: I was here for -- until 10:30 and I did read the transcript at least twice.
THE COURT: Okay. So you recall that the question was limited to the allegation that Ms. Barber has made that the
defendants refused testing. It's not a matter of going into the specifics.
PLAINTIFF’S COUNSEL: Well, Your Honor, that's certainly what they'd like to offer it for. I think that we can
use this evidence that's been admitted for our purposes for --
THE COURT: And what is your purpose of asking this question?

PLAINTIFF’S COUNSEL: Well -- well, for this question I was going to ask the witness how did he learn that the
lawsuit was dismissed? One of these lawyer's been telling this witness about the settlement agreement, for
example --
THE COURT: And how is that relevant to what Ms. Barber said and the actual goings on what Mr. Poma believes about
that? How is that relevant?
PLAINTIFF’S COUNSEL: Well, it's relevant if they're telling other people, like their witness here, what the
terms of the settlement were, etc., and then they're saying, Oh, my gosh, they breached the settlement
agreement[CB39]. If he knows about it, I think it's extremely relevant. And he's got information; he's typing
it in here about this lawsuit. So I'm just simply trying to inquire what did they tell him about the settlement.
DEFENSE COUNSEL: Your Honor, what we're talking about here is a parenthetical that says that the earlier lawsuit was,
quote, "since dismissed." There's absolutely nothing in here about the settlement agreement, nor is anything Mr. Poma
does relevant to what Ms. Barber did.
THE COURT: I -- I -- and I'm trying to understand your position, Mr. Revere. You want to bring an action against the
defendants in some way for having violated the settlement, we'll deal with that when you do that. Right now you only have
one question before the court.
PLAINTIFF’S COUNSEL: Right, Your Honor. And what we are -- what we're trying to do is defend their claim of saying
she breached. If they had a prior breach, that's clearly a defense if they're telling people about what's going
on, etc.
THE COURT: That -- that is -- that is -- you're fishing, Mr. Revere, basically.
PLAINTIFF’S COUNSEL: Well, I'm not fishing because he's talking about why the lawsuit went away, and I'm just trying
to inquire what does he know, what does he know about why he's in a federal courtroom right now, and I
don't know why they're so nervous about what they talked to this guy about.
THE COURT: No, I don't think -- they're not nervous about that. They're nervous about spending the rest of their lives
in this courtroom about it. That's what I'm nervous about.
PLAINTIFF’S COUNSEL: Okay. I understand Your Honor's ruling. I'll move on. Mr. Poma, staying with that same
paragraph, the last sentence reads, "In short, the issue's whether there are actual -- there are residual
concentrations of pesticides and soils above applicable action levels." You see that?
MR. POMA: Yes.
Page 20 of 43
PLAINTIFF’S COUNSEL: Okay. And that was the subject of a
meeting you were having with the State of Hawaii, correct?

MR. POMA: The table was the reason for the meeting.
PLAINTIFF’S COUNSEL: Okay. And then jumping down to the next
paragraph under Step 2 --
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay -- the top paragraph, last sentence
reads, "If the potential for unacceptable risk is identified, i.e.,
failure of the decision rule, then additional evaluation may be
necessary." That's something you wrote to the state, correct?
DEFENSE COUNSEL: Your Honor, I object as to relevance. I mean, the document speaks for itself and this was covered
on Wednesday.
THE COURT: And it's in evidence and I'll be happy to read it, so let's move on.
PLAINTIFF’S COUNSEL: Okay. Your Honor, may I move on to another topic within the same document?
THE COURT: What's the topic?
PLAINTIFF’S COUNSEL: The topic is the fact that there are -- they have acknowledged that there are unsafe
levels in certain neighborhoods in this document which is directly relevant to our truth defense.
THE COURT: Where are you in the document?
PLAINTIFF’S COUNSEL: I'm sorry?
THE COURT: Where are you --
PLAINTIFF’S COUNSEL: Oh, page 3.

THE COURT: Okay.
PLAINTIFF’S COUNSEL: Your Honor, in -- it's
not labeled here, but the top box and there's a
little circle bullet point, and it mentions
"additional disclosures to residents and a
bar on digging in the soils around homes is
proposed." Can I ask him a question based on
that?
DEFENSE COUNSEL: Your Honor, this appears
to be about the Heleloa neighborhood, the historic
preservation neighborhood, and I think -- and the
Kapoho, the other adjacent 10-home
neighborhood this was all covered on Wednesday, Page 3 of Defendants' DBQ
Your Honor.
PLAINTIFF’S COUNSEL: There might have been discussion. There was certainly not a discussion on this bullet point at
all.
THE COURT: Just a moment. What are you attempting to ask him about this? This is already in evidence.
PLAINTIFF’S COUNSEL: I hear you, Judge. And if -- well, the -- this is the closest thing to what we have of a client
representative of the opponent, and we're trying to use this as an admission that there are neighborhoods that
are not safe and these are only proposed additional warnings. People are living there right now with no
warnings, no prohibition against digging soil, and they're saying my client's a liar because she's saying the
neighborhoods are unsafe. They know they're not safe and it's here in black and white; they're saying maybe
Page 21 of 43
they should do additional warnings. I think it's directly on point when she says there are neighborhoods that
are still contaminated. There are.

DEFENSE COUNSEL: Your Honor, Mr. Revere is just testifying at this point. This is a single bullet point in a proposal to
do further testing at Marine Corps Base Hawaii.
The neighborhoods of Heleloa and Kapoho are currently governed by the Pesticide Soils Management
Plan[CB40]. It does have institutional controls on it. Plaintiffs know that. They know what the Pesticide Soil
Management Plan says.
The topic Heleloa and Kapoho and the current conditions they're in has already been covered at length in this proceeding,
Your Honor and we're talking about 33 unique homes in a group of over 1300 homes, Your Honor.
PLAINTIFF’S COUNSEL: Well --
THE COURT: You know, what I see -- what I believe that your -- your point
is that these homes, which have been covered repeatedly, and the difference
with respect to these homes have been talked about at length. What you're
going to have to do, Mr. Revere, is you're going to have to connect up
something like this kind of a sentence with what Ms. Barber had said because
I believe the objection with respect to what Ms. Barber says are the broad
sweeping statements about contamination, and that will be something that you
can use in your argument in the paper you're going to present.
But I'm not sure what you can ask Mr. Poma -- if you have a question that you
think will elicit something other than argument, go ahead and ask it.
PLAINTIFF’S COUNSEL: Okay. The reason why, Mr. Poma, that there's
proposed institutional controls including additional disclosures and a
bar on digging is because there's a concern that these historic homes
-- it hasn't been treated, correct?
DEFENSE COUNSEL: Same objection. It assumes facts not in evidence.
THE COURT: Can you answer that question[CB41]?
MR. POMA: I'll try to answer it. Okay. So within the Heleloa neighborhood
there is no data to show whether there is a presence of pesticides or not
underneath the slabs or around the slabs.
The institutional controls and the purpose of the institutional controls
is to eliminate any direct contact with any potential impacted soils.
Those controls are in place which makes it safe for the residents.
PLAINTIFF’S COUNSEL: Okay. And these controls are being proposed
to make it safe for the residents, correct?
MR. POMA: The controls are in place[CB42].

PLAINTIFF’S COUNSEL: No, you're saying -- these are called
"proposed" in your bullet point.
DEFENSE COUNSEL: Your Honor, he's just arguing with the witness now.
THE COURT: Mr. Poma, what I understand you to say -- and I guess the point Excerpt from Defendants' MCBH Residential
Community Handbook clearly states, "Residents
is is that so that I can understand this and make a ruling -- what I understand can safely work and play in their yards." It does
you to say, Mr. Poma, is there are currently controls in place that protect the not inform residents of their restricted uses.
residents from[CB43] the pesticides.
Page 22 of 43
MR. POMA: That's correct, and that's what the intention of that sentence was. It's addressed – proposed addressing
the presence through institutional controls.
THE COURT: Okay. I didn't understand the last thing you said.
MR. POMA: So the way it's worded, it says, "OMC proposes addressing the presence of the OCPs or the
organochlorine pesticides through institutional controls."
THE COURT: Are the controls currently in place?
MR. POMA: Yes. (There’s absolutely no proof of this and a great deal of evidence proving these controls are
NOT IN PLACE!)
THE COURT: And you're talking about continuing that or doing additional things?
MR. POMA: Continuing it.
THE COURT: Just continuing it?
MR. POMA: Yes.
THE COURT: You're not talking about a change?
MR. POMA: No.

THE COURT: Okay.
PLAINTIFF’S COUNSEL: Okay. But what you wrote here is
"proposed" and "additional," correct?
DEFENSE COUNSEL: Objection. Argumentative.
THE COURT: Do you understand the question?
MR. POMA: I'm not sure. I mean, the way I read it and
understand what I wrote is that we're -- this is a -- this is about
defining the boundaries for what was going to be sampled, and
this is in a Category IV which is not to be sampled because we
have institutional controls, it's an existing neighborhood, and
it was not one that was under the new construction.
THE COURT: And so you didn't intend to sample that one?
THE COURT: Because you feel that you've already taken whatever steps are necessary?
MR. POMA: It's being managed through the Pesticide Soil Management Plan[CB44] and the institutional
controls.
THE COURT: Okay. Now I'm glad we're having this examination, Mr. Revere, because what I do want to be sure that both
you and Mr. Whattoff understand is that I am looking at these very narrow questions, and when you give me these – your
positions on Tuesday morning, I expect it to tie your position to either a document or to testimony. And I think the broad
general questions that you're asking have to have some basis.
And right now, from what Mr. Poma says, your theory is not connected to what he has said, the point of what he stated
was, right?
And so what I am trying to avoid is hyperbole and broad, general statements in these particular filings that you're going to
do on Tuesday so that I can actually measure from the testimony and from the documents that I have what the situation
is. So you may continue, but I think we're done with this part.

PLAINTIFF’S COUNSEL: Okay. Your Honor, if I -- I did have one just very basic question. Has there been an
announcement to folks living in those homes, a sheet of paper, a warning, or anything saying don't dig[CB45]?
Page 23 of 43
DEFENSE COUNSEL: Object. Foundation.
THE COURT: I'm not sure what foundation – you know, it's -- it's a question --
PLAINTIFF’S COUNSEL: Sure.
THE COURT: -- that is particular, but I think Mr. Poma
can answer it. 3
MR. POMA: I'm not involved in the day-to-day
routine practices of the residential management.
But as I understand -- and I know that there's a
residence guide[CB46] -- within the residence Paragraph from page 14 of Defendants’ MCBH Residents’ Community
Handbook mentioning one (1) of the multiple extremely hazardous &
guide there are prohibitions about digging in the banned pesticides confirmed in MCBH housing soils. From 2006-2014, this
yards. And I understand through the leasing was the ONLY reference to organochlorine pesticide in information received
process that especially within the historic homes, from Defendants. Defendants claim this paragraph informed residents of
their families’ increased health & exposure risks and restricted uses (i.e. do
they have addendums that are added to the lease not dig, garden or consume edible produce grown from community soils).
to address these types of issues.
PLAINTIFF’S COUNSEL: Okay. Are any of these additional

disclosures or this digging bar, as far as you know, evidence in this
case, has it been produced?
DEFENSE COUNSEL: Objection. Lack of foundation.
PLAINTIFF’S COUNSEL: If you know.
THE COURT: I don't think that we ask the witness on the stand about
what the evidence is in this case. He's not, you know
THE COURT: -- you can make an argument, but to having him be in control
of what is in the court's evidence is not really his bailiwick.
PLAINTIFF’S COUNSEL: Okay. I'll move on, Your Honor. Under Item 5
here, Develop a Decision Rule -- do you see that?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: In the last sentence here it says, "If the result
exceeds the applicable EAL that additional evaluation will be
necessary." Do you see that?
MR. POMA: Yes.

PLAINTIFF’S COUNSEL: So it's a possibility that results will exceed
the applicable EALs then, correct?
MR. POMA: It's not the intent of the decision rule.
PLAINTIFF’S COUNSEL: I didn't ask about -- is it a possibility or not?
MR. POMA: I don't believe it's a possibility, no[CB47].
PLAINTIFF’S COUNSEL: Okay. Did you think the same thing at

Hickam? Hickam Communities’ Remedial Investigation Report
(2012) confirms results of post-remediation soil
testing in Hickam family housing, for which Mr.
DEFENSE COUNSEL: Objection. Foundation. You already ruled on Poma was responsible & had deemed “safe,”
Wednesday that activities that occurred at Hickam Air Force Base are not revealed pesticide contamination levels were
relevant to Marine Corps Base Hawaii. actually higher than before & his attempted soil
remediation a complete failure!
PLAINTIFF’S COUNSEL: Well, Your Honor, if I may respond?
Page 24 of 43
THE COURT: You may respond.
PLAINTIFF’S COUNSEL: Okay. Mr. Whattoff solicited the witness's
background, including working at Hickam where their plan didn't
work, and I'm sure he expected everything to be rosy and copacetic
at Hickam, but that's not how it turned out --
THE COURT: Okay. Mr. Revere, as I have pointed out to Mr. Smith repeatedly,
this case got settled. We have a very narrow set of questions here. Hickam is
not one of the areas that we are dealing with here. Let's move on.
PLAINTIFF’S COUNSEL: Okay. You mentioned in your – that when you were
not -- when Mr. Whattoff was asking you a question, he asked you the following
question: "When you weren't present, who was in charge of confirming
this work was performed correctly, if anyone?"
And your response was, "OMC had field managers that were present
daily and observed construction daily for OMC." Is that your
understanding?
MR. POMA: Correct.

PLAINTIFF’S COUNSEL: So these field managers would be OMC
employees?
PLAINTIFF’S COUNSEL: Okay. And so you weren't there every day?
MR. POMA: Are you asking me a question?
PLAINTIFF’S COUNSEL: Yeah.
MR. POMA: That was established. Yes, that's correct.
PLAINTIFF’S COUNSEL: Okay. You also mentioned that you relied upon,
quote, "reliable vendors," end quote, to provide clean soil; is that
correct?
DEFENSE COUNSEL: Object to the extent misstates prior testimony.
THE COURT: It's also been gone over[CB48], so this isn't something we need
to go over again. Mr. Smith handled this -- you know, took care of it last
Wednesday, so this is the problem of having an additional attorney cross- Excerpt of August 10, 2016 transcript to which
examining somebody. Plaintiff Counsel refers
Find another topic. We did this one. I can tell you what he said, if you want, but just move on.
PLAINTIFF’S COUNSEL: Okay. Your Honor, just for the record, this is directly from Mr. Whattoff's questioning
that I'm trying to cross-examine him on, not Mr. Smith's cross-examination. It's pulled from page 44. But I
will move on, Your Honor. The -- is it fair to say that you consider yourself to be in partnership with OMC?

DEFENSE COUNSEL: Object. Vague and ambiguous. Irrelevant.
THE COURT: As I understand it, he has been an employee on a consultant basis with OMC. That's argument, Mr. Revere.
PLAINTIFF’S COUNSEL: Well, Your Honor, if I may. Do you have a website?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. Do you say that you consider yourself partners with your clients?
MR. POMA: Yes[CB49].
Page 25 of 43
PLAINTIFF’S COUNSEL: Okay. And you mention on your website that you consider yourself the, quote,
"wingman[CB50]," end quote, to your clients, correct?
MR. POMA: That's a phrase I use, yes.
PLAINTIFF’S COUNSEL: Okay. And you mention that, "Together we'll explore every option and develop a plan
that leads to the client's desired outcome," correct?
MR. POMA: I guess that's on there if you're reading it from there, correct.
PLAINTIFF’S COUNSEL: Okay. And did the attorneys here tell you what it is they're hoping to get out of this
hearing?
DEFENSE COUNSEL: Object. Relevance and attorney – our work product to the extent Mr. Poma's an expert
witness[CB51], Your Honor.
THE COURT: Okay. The attorneys are not his partners. The -- he -- if we're going to use the term partnership, it's --
what the attorneys[CB52] want is not what the OMC -- they're two different entities, Mr. Revere.
PLAINTIFF’S COUNSEL: Fair enough. Fair enough, Your Honor. Do you understand what OMC wants to get out
of this hearing?
DEFENSE COUNSEL: Objection. Foundation. Relevance.
THE COURT: I'll[CB53] allow it. But, you know -- no. I mean, Mr. Revere, do you have any questions that would throw
some light -- you're treating me like a jury. I mean, seriously. You know, you're -- the implication is from that question is
that there is some nefarious intent here. This is no jury. This is a judge. We're trying to get actual facts and information.
If you have more questions that will elicit that, please ask them now because you're very close to not getting to ask any
more questions[CB54].
PLAINTIFF’S COUNSEL: Your Honor, all I am trying to do -- and I believe that it's clearly within the federal rules of
evidence to common law -- is that witnesses have biases, interests, and motives, and there is an extremely close
relationship between Mr. Poma --

THE COURT: Which you have pointed out.
PLAINTIFF’S COUNSEL: -- and OMC.
THE COURT: But what you were just doing was attempting to find out what the attorneys and he have talked about, and
then you -- you know, ask a substantive question, Mr. Revere.
PLAINTIFF’S COUNSEL: Okay, Your Honor, I will do that. However, what Mr. Whattoff said is directly
contrary to what he said earlier and what Your Honor's ruled earlier. He just said he's an expert[CB55]
witness. He wasn't offered as an expert witness. He was offered as a lay witness. I would like to ask the lay
witness, yes, what did . . .
Mr. Whattoff or Ms. Munger or anyone else at the firm tell you what was going on at this hearing. I think it's very, very
relevant, especially when he's got a documented history trying to do -- be a wingman for his client. I don't think there's
anything wrong with asking, "What did you and the lawyers talk about in connection with this hearing?"
That's our offering, Your Honor. If you want me to move on, obviously, I will.
THE COURT: You can answer the question.
MR. POMA: Could you restate the question?
PLAINTIFF’S COUNSEL: Yes. When did you first learn of this hearing?
MR. POMA: A few weeks ago.
Page 26 of 43
PLAINTIFF’S COUNSEL: What -- from whom?
MR. POMA: From Mr. Whattoff.
PLAINTIFF’S COUNSEL: What'd he tell you about why there's a hearing?
MR. POMA: He said --
DEFENSE COUNSEL: We do object to this, Your Honor. Mr. Poma is testing
-- or testifying to percipient issues here, but he's also designated as an
expert witness; he's produced an expert witness report. He's served
as an expert witness --
THE COURT: Was he an expert witness in the underlying action?
DEFENSE COUNSEL: He was, Your Honor.
THE COURT: Okay. So he's -- you know, while we haven't qualified him as
an expert, I think he's already been qualified in this case as an expert, if that's
the representation by Mr. Whattoff[CB56]. Is that not true?
PLAINTIFF’S COUNSEL: It's not true because he hasn't been qualified
as anything. They've -- we didn't have a trial, we didn't have any
evidentiary hearings. No, he hasn't been qualified as an expert for
anything.
THE COURT: Shall we do that now[CB57]?
PLAINTIFF’S COUNSEL: Uhm, I'd rather not since their testimony and
Your Honor's prior ruling was that he's here with his lay percipient
things and prior testimony or questioning by us was cut off because
he was just saying, "These are just my lay observations." So --
Excerpt from pages 110-111 of August 10, 2016

Page 62, Evidentiary Hearing Transcript, August 12, 2016 testimony in which Judge Gilmor stated Mr.
Poma was not testifying as an expert
THE COURT: He's an expert in -- my understanding would be if he was
offered as an expert, it's in a narrow field. And the questioning was very broad questioning and I can certainly
understand him not being an expert. For example, he has said he's not a toxicologist, he has said he's not a
doctor.
I -- what I -- what I am having a lot of difficulty with is we aren't dealing with the actual questions before
the court. Right now we're dealing with, in my mind, quite peripheral issues that are really more suited for -
- before a jury[CB58] when you are arguing the actual case as opposed to when we are dealing with whether
or not the settlement has been breached, which is the equity question before this court, the reason there's
no jury.
And I am sure that there was some conversation with respect to what is happening here, but I haven't heard anything
from Mr. Poma that has been inappropriate[CB59] in any way. And if you have some area that you think there
is some problem, raise a question with respect to that area.
PLAINTIFF’S COUNSEL: Okay. Well, Your Honor, that's what I'm trying to do. They keep on objecting when I simply
want to say, "What is your understanding about why you are here? What did they tell you this hearing was
about?"
THE COURT: Mr. Revere, are you trying to irritate[CB60] me?

PLAINTIFF’S COUNSEL: No, Your Honor. I really, really, honestly 100 percent am not. I'm trying to represent my
client. I'm trying to make a record. I don't think it's appropriate when they say he's a lay witness, Your Honor
rules that he's a lay witness. Okay. Mr. Lay Witness, why are we here?
THE COURT: You know, a lay witness as to certain things. I did not know he was offered as an expert in the underlying
case because, as I remind you once again, the case was settled.
But what I am hearing now is that when the time came for designation of an expert witness, this gentleman was designated
as an expert witness. And I am also hearing that he provided an expert report that went over to the other -- went over
Page 27 of 43
to you folks for you to examine -- and I don't know because we never had a trial -- I don't know if you had experts
that you put forward[CB61].
But I don't see the relevance with respect to these narrow questions before the court in equity of going down this road as
to whether he is not an expert. Perfectly appropriate for somebody to say, "I'm not an expert in toxicology. I'm not an
expert in this, that, or the other thing." It doesn't mean that we have to qualify him as an expert. Let's just move on.

PLAINTIFF’S COUNSEL: Okay. Thank you, Your Honor. The -- you understand that Forest City no longer owns
OMC, correct?
DEFENSE COUNSEL: Objection. Misstates evidence and mischaracterizes the nature of OMC.
PLAINTIFF’S COUNSEL: Well, he can --
THE COURT: What's the relevance of this?
PLAINTIFF’S COUNSEL: The relevance is, among other things, Your Honor, they have to prove
damages[CB62]. When it's no longer an ongoing entity, as far as Forest City's concerned, how they're going
to prove damages is something I think we'd like to inquire of this witness 'cause he knows them, he worked
with them all the time, and he knows that they've been sold to another company called Hunt and they have
no further involvement in this.
THE COURT: And how is that relevant to the settlement?
PLAINTIFF’S COUNSEL: It's -- it's -- it's relevant to the issue of they have to show damages and there's -- I think
they agree with these elements, one of them being damages. They haven't done that. They can't do that
'cause Forest City doesn't have anything to do with OMC any more. They're not a partner now. Hunt is a
partner.
THE COURT: I'm unclear why this is relevant. Mr. Whattoff?

DEFENSE COUNSEL: Your Honor, Ohana Military Communities existed for
many years. It continues to exist. It existed in the first lawsuit. It continues to
exist now.
One of the partners of Ohana Military Communities has been changed. It was
previously a Forest City entity and now Ohana is -- the partnership is between
the Department of the Navy and Hunt, and the Navy was previously a
partnership between the Department of the Navy and Forest City.
But Ohana has always existed. It continues to exist. Ms. Barber made
statements about Ohana, she made statements about Forest City, she makes
statements about Hunt as well. So I don't see the relevance of any of this, Your
Honor.
THE COURT: Is Forest City -- is Forest – thank you -- the -- is Forest City still
in business?
DEFENSE COUNSEL: Forest City is certainly still in business. It no
longer is the residential manager of Marine Corps Base Hawaii[CB63]. Letter from Defendants to MCBH residents dated
November 13, 2015 advising Hunt Companies was
THE COURT: But it still has the possibility of having irreparable harm done to taking over or replacing Forest City’s interests in &
management of MCBH family housing.
it if its reputation is damaged?
DEFENSE COUNSEL: Certainly, Your Honor. It continues to operate residential housing, nonmilitary
residential housing in Hawaii and throughout the United States.

THE COURT: Okay. So how does that affect what you're asking, Mr. Revere?
Page 28 of 43
PLAINTIFF’S COUNSEL: Well, one of the ways, Forest City's a moving partner
and -- or a moving party, excuse me -- for this motion. And we're simply trying to
establish they're not renting things out. So I hope they're not going to say, "Oh, my
gosh, we lost rent because of what Cara Barber said," etc., etc.
THE COURT: Well, the question is irreparable harm, and reputation is an issue
with respect to goodwill is an issue, and so I don't think this is what we need to be
doing now in this proceeding.
But it's good to get this out on the table that the fact that they are not part of OMC
doesn't mean they don't have the possibility of their reputation being damaged.
PLAINTIFF’S COUNSEL: Okay. Thank you, Your Honor. Okay. And just because
that was mostly Mr. Whattoff and I talking, you do understand that Hunt has
replaced Forest City within OMC, correct?
PLAINTIFF’S COUNSEL: Okay. Mr. Poma, could you go to Exhibit 22, please?
MR. POMA: Plaintiff's book?
PLAINTIFF’S COUNSEL: It should be in the binder, Plaintiff's Exhibit 22.
MR. POMA: Okay.
PLAINTIFF’S COUNSEL: Okay. Do you have that document before you?
MR. POMA: Yes.

PLAINTIFF’S COUNSEL: Okay. And is that the October 1st, 2014, letter?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. The -- this second -- this paragraph 1 here, do
you see that?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. The -- it's -- you know, there's an italicized
question and then there's normal print responses in this letter. Do you see that?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. And it says in the response here from the
Department of Health, Dr. Rosen, it says, "it is true that OMC" -- excuse me --
"Ohana Military Communities, OMC, has proposed further adjustments to
their site-specific action levels for use at Marine Corps and Navy military
housing in Hawaii." Do you see that?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Then it says, "However, we do not intend to
consider OMC's proposal unless and until OMC were to enter into a formal
oversight agreement with HDOH to allow for the detailed level of review
that would be required." Do you see that?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. Is it your understanding -- you see the phrase
"formal oversight agreement"?
Plaintiff’s Exhibit 22, HDOH letter to Dr.
Chun dated October 1, 2014

MR. POMA: Yes.
Page 29 of 43
PLAINTIFF’S COUNSEL: You've heard of that phrase before?
MR. POMA: I suppose so, yes.
PLAINTIFF’S COUNSEL: Okay. And there was no formal oversight
agreement in place for MCBH construction, correct?
DEFENSE COUNSEL: Object. Relevance.
THE COURT: I don't know what it means, so --
THE COURT: -- since I'm the one that has to make a ruling here, maybe it
would be nice to know what we're talking about.
PLAINTIFF’S COUNSEL: Okay. These formal oversight agreements -- and
this is where the State of Hawaii would actually get involved overseeing
remediation efforts, correct?
DEFENSE COUNSEL: I'm going to object as to speculation. This is not a
document drafted by Mr. Poma.
THE COURT: Okay. What I would ask is, Mr. Poma, do you have experience
with formal oversight agreements?
MR. POMA: I have not been involved in non – not really, no.
THE COURT: Okay. So you really can't tell us what that means?
MR. POMA: Right.
THE COURT: Okay.

THE COURT: So you can't testify, Mr. Revere[CB64].
Hickam AFB Communities Remedial Investigation
PLAINTIFF’S COUNSEL: Okay. I'll ask you this then. Was the State of Report (2012). Mr. Poma’s January 2014
Hawaii Department of Health overseeing construction activities at Marine Corps Declaration admits he was responsible for
managing & remediating hazardous soils in
Base Hawaii base based upon your experience of being out there quite often? Hickam family housing from 2005-2011. In 2009,
after he completed all planned soil remediation
MR. POMA: Not quite sure. I mean, their job is not to oversee construction. & deemed the soils “safe,” results of post-
construction soil testing revealed pesticide levels
PLAINTIFF’S COUNSEL: Okay. Thank you. The other thing it mentions were actually higher than original levels
here, in the first sentence it says, "It is true that Ohana Military confirmed! Mr. Poma’s failed remediation
Communities has proposed further adjustments to their site-specific attempt required another 3 years of costly
remediation under a “formal oversight
action levels for use at Marine Corps and Navy military housing in agreement” with HDOH.
Hawaii." Do you see that?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: That would include MCBH, correct?
PLAINTIFF’S COUNSEL: Okay. So when they say "adjustments," they mean adjusting the numbers up,
correct?
DEFENSE COUNSEL: Object as to relevance, Your Honor.
PLAINTIFF’S COUNSEL: Well, Your Honor -- let me -- I'll withdraw the question. I think you testified the soil out at
Marine Corps Base Hawaii is safe, correct?
Page 30 of 43
PLAINTIFF’S COUNSEL: And it meets all the current standards, correct?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: If that's true, why is Ohana asking to adjust
the levels up?
DEFENSE COUNSEL: Object. Relevance.
THE COURT: The levels of what? I mean, we're talking here in a vacuum.
PLAINTIFF’S COUNSEL: The -- we're talking about the environmental
action levels -- correct? -- if you look at this?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: So if you're talking -- why do you need to
increase them for if everything's safe? What do you need to increase
them for?
DEFENSE COUNSEL: Object to relevance, Your Honor.
THE COURT: What's the relevance of this[CB65]?
PLAINTIFF’S COUNSEL: The relevance is he's just told you couple
days ago everything is safe, everything is clean, Ms. Barber's wrong.
Why are they asking to increase the levels if everything is clean?
THE COURT: I have no context for this, Mr. Revere. If you want him to Dennis Poma’s January 7, 2014 Declaration
testify about this, put it in some kind of context so that I can understand it as confirms he was involved in & responsible for the
opposed to just levels for what. failed remediation of hazardous soils in Hickam
family housing, which was discovered via post-
PLAINTIFF’S COUNSEL: : Okay. construction soil testing in 2009.
THE COURT: I mean, we have various different measurements here. We have the soil management plan. We have the
EPA standards. But in this context, I don't know what you're talking about.
PLAINTIFF’S COUNSEL: Okay. Well, Your Honor, I'll

respectfully submit so I don't argue it further -- unless you
want me to -- that the context is this letter to Dr. Chun
from the State of Hawaii talking about what Ohana is
asking to raise which is the environmental action levels
at Marine Corps Base Hawaii. Even though they're
coming before you and saying everything is safe,
they're asking them to increase it.
THE COURT: Okay. Mr. Poma, is it true that they were asking
for an increase in some sort of level?
MR. POMA: Both increases and in some cases there's, I
believe, a decrease as well.
Charts from Defendants' 2008 & 2014 PLANs reflecting both
THE COURT: And what was the basis, the motivation for that Hawaii and/or EPA Tier 1 EALs those years, as well as the
request? And we're talking about -- when we say "levels," what Tier 2 EALs Defendants' proposed in both 2008 & 2014
levels are we talking about?
MR. POMA: Okay. So the Pesticide Soil Management Plan has a table that was generated or developed in -- started in
2005 and was placed in the 2007 plan. It was based on EPA guidance at the time. And State of Hawaii development of
their Tier 1 EALs since that time, for example, compounds like chlordane, aldrin, and dieldrin have had further review by
both the EPA and by the Department of Health, and they have made adjustments to their EALs. And so we're also going
back and requesting to adjust ours so they conform with the latest scientific basis out there that's provided by the federal
and the state government.
Page 31 of 43
THE COURT: So the point was to attempt to revise to be in line with the EPA levels?
PLAINTIFF’S COUNSEL: To be in line with the national EPA Guidelines?
MR. POMA: And the State of Hawaii.
PLAINTIFF’S COUNSEL: Okay. And that would include higher than the standard EPA guidelines, correct?
MR. POMA: I'm not sure I'm following your question.
PLAINTIFF’S COUNSEL: Okay. Let's go back to what was actually written in the document. Do you see that? In the
italics, No. 1 --
THE COURT: Okay. I'm interested in the difference between what you're talking about and what Mr. Poma's talking about
when -- what are -- what is the question? When you say "the standard," what are you referring to as the standard, Mr.
Revere? What is your question?
PLAINTIFF’S COUNSEL: The standard EPA levels for action with regard to these organochemicals.
THE COURT: At what point in time?
PLAINTIFF’S COUNSEL: Well, currently, at least – excuse me -- as of October of 2014, when this letter's being written.
THE COURT: Did you have something to say, Mr. Whattoff?
DEFENSE COUNSEL: I object as vague and ambiguous. I don't know what standard he's referring to. I'm not aware
of any EPA standard. I mean, there's the -- EPA has something similar to environmental action levels. It's
not a standard or safety recommendation or anything like that, Your Honor, so I object to this
characterization[CB66] and I object to the question as vague and ambiguous.
PLAINTIFF’S COUNSEL: Well, I'll withdraw it, Your Honor.

THE COURT: No, don't withdraw it. Tell me what you're attempting to say.
PLAINTIFF’S COUNSEL: First of all, what happens on this base, what they --
THE COURT: Right now we're talking about these levels so that I can understand what you were asking him and what
he is responding to. I'm not talking about the base. I'm talking about these standards that we are looking at to measure.
What are you referring to?
PLAINTIFF’S COUNSEL: Okay. What I'm referring to, and I think it's discussed in detail in something that's in evidence
that we can brief and argue about later, is that there are national standards submitted by the EPA. What these folks
have done is said, Oh --
THE COURT: No, we're not going into argument right now --

THE COURT: -- Mr. Revere. At what -- what year are you talking about these EPA environmental action national standards?
PLAINTIFF’S COUNSEL: Well, I guess broadly every year that -- and when they issued those --
THE COURT: Okay. But Mr. Revere, right now Mr. Poma's saying they've been revised. Is this what you're saying has
been revised?
THE COURT: Okay. So you are talking in broad general terms. And what I am -- what I have been hearing over the
testimony throughout that there have been some changes over the years to these standards and that's what I am trying to
get at. Because if we're talking apples and oranges, we're talking about a standard that was in 2007, a standard that was
in 2011, and a different standard in 2014. That is important to get at the truth.
Page 32 of 43
PLAINTIFF’S COUNSEL: I hear Your Honor. And what I was referring to is what is in this letter which is --
THE COURT: Well, I can't understand the letter until I understand what the terms are. So don't go into the specific with
respect to this letter until we establish what you are questioning.
PLAINTIFF’S COUNSEL: Okay. What are the environmental action levels in the
soils management plan based on?
DEFENSE COUNSEL: Object. Vague and ambiguous which soil management

plan he's referring to.
THE COURT: Is there more than -- it covers –
DEFENSE COUNSEL: Just the date, Your Honor, whether he's referring
to this proposed one or the 2007 one the government --
PLAINTIFF’S COUNSEL: No, the 2007.
THE COURT: Okay. At that point in time did they conform to these national
standards?
MR. POMA: Yes they did.[CB67]
THE COURT: Okay. And this discussion in here by the Department of Health, is
there -- and a request to change the standards in the soil management plan, what
was that based on?
MR. POMA: So you're -- you're asking for the recent updates that we're requesting
that they're referring to?
THE COURT: Yes.
MR. POMA: Why we were requesting it?
THE COURT: Yes.

MR. POMA: To -- because the basis by which the action levels or the EPA
screening levels are -- well, there's a couple reasons. One, they have
changed because of new information that's become available to the EPA,
and then the national levels are very broader range because they covered
the whole nation.
And then each state has the ability to take site-specific or regional
information in order to create their own, which is what the state does, or
a delegated state under the EPA, to develop. And so because of site-
specific or regional areas, they update those, and also based on that latest
information that's published over time[CB68].
THE COURT: Okay. And so --

MR. POMA: So we're just trying to update – or OMC is trying to update
to conform to the latest available information.
THE COURT: Okay. Now do you have a question, Mr. Revere?
PLAINTIFF’S COUNSEL: Yes, Your Honor. If you go back to Exhibit 22.
MR. POMA: Okay.
PLAINTIFF’S COUNSEL: Okay. The question -- or the inquiry that's made in the
Plaintiff's Exhibit 22, HDOH letter to Dr.
italicized -- Chun dated October 1, 2014
THE COURT: Which question?
Page 33 of 43
PLAINTIFF’S COUNSEL: I'm sorry, Your Honor. The italicized No. 1.
THE COURT: Okay.
PLAINTIFF’S COUNSEL: The first sentence just says it's a follow-up to a complaint.
The second sentence says, "We were also informed that in Private -- the Private-Public vendors, PPV, for military
family housing have submitted requests to increase the environmental action levels, EALs, even higher than
was previously accepted by the HDOH."
And then the first -- excuse me -- the first part -- excuse me, Your Honor. The first part of the response says, "It is true
that Ohana Military Communities, OMC, has proposed further adjustments to their site-specific action levels
for use at Marine Corps and Navy military housing in Hawaii," period. Did I read that correctly?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. So again, if everything is clean, even under the old levels, you don't need to
adjust. What do you need to adjust it for?
DEFENSE COUNSEL: Objection. Asked and answered. Argumentative.
THE COURT: So I -- you know, in attempting to figure out where this is going, is it your position that the -- that
contamination is based on something that was currently appropriate in 2007 and you never adjust it based on new findings?
PLAINTIFF’S COUNSEL: Your Honor, no, that's not our question. That's what they're trying to put in there.
But that's not our question because everything that he's now saying isn't part of this correspondence. We
don't have their correspondence and what the concern was is that they're trying to make it so that they could
have even more polluted soils there, not that, oh, well --

THE COURT: You know, that's argument, Mr. Revere.
PLAINTIFF’S COUNSEL: All right.
THE COURT: And we're trying to deal with what is actually happening in terms of what happens contamination --
contamination and the legal standard of what is contamination. And I don't understand your argument.
PLAINTIFF’S COUNSEL: I'll move on, Your Honor. Mr. Poma, is it fair to say that most of the neighborhoods built by
OMC involved the complete removal of all soil around and underneath all homes?
THE COURT: Okay. That's a little broad. Where are we talking? What are we talking about, Mr. Revere?
PLAINTIFF’S COUNSEL: At Marine Corps Base Hawaii.
THE COURT: Are we talking about things that are governed by the --
PLAINTIFF’S COUNSEL: Yes, under the PSMP.
DEFENSE COUNSEL: Yeah, I'm confused by the question too, whether we're talking about non Ohana
neighborhoods or Ohana neighborhoods[CB69].
THE COURT: Because we are only concerned with Ohana neighborhoods, right?
PLAINTIFF’S COUNSEL: Correct [Ohana’s MCBH family housing community or all MCBH neighborhoods managed by
Ohana/Defendants].
THE COURT: So this question is about -- put Ohana in there so we can have a question that's relevant to what's before
the court.
PLAINTIFF’S COUNSEL: Okay. Okay. Is it fair to say that post construction sampling of subsurface -- or excuse me --
of surface soils in completed neighborhoods was not included in the plan? Is that correct?
MR. POMA: In the 2007 plan, correct.
Page 34 of 43
PLAINTIFF’S COUNSEL: Okay. And is it fair to say -- I think -- so is it your testimony that even though this
wasn't required, Ohana still did this testing of the soils?
THE COURT: Which soils are we talking about now?
PLAINTIFF’S COUNSEL: The soils that were used to -- left in place when it's, you know, basically deemed completed,
the top soils. Not things that are in the pit, but the soils on the surface.
DEFENSE COUNSEL: I'm totally confused by that.
THE COURT: You're going to have to rephrase your question.
PLAINTIFF’S COUNSEL: Okay. You mention that testing was done in your testimony the other day, correct?
MR. POMA: Yes. Specifically in regard to what?
Defendants’ map of their MCBH Family Housing Community, including thirteen (13) MCBH neighborhoods
they have managed since 2006, all of which are governed by their Pesticide Soils Management Plan

PLAINTIFF’S COUNSEL: With regard to the -- well, you recall that the plan called for either certified clean soils
or testing on site to verify that they're clean, correct?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. And I think what your testimony was that you relied upon reliable vendors if it
came off-site, or that there was testing done on site, correct?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. But we don't have any of those test results, correct?
MR. POMA: I don't know.
Page 35 of 43
PLAINTIFF’S COUNSEL: Okay. And is it fair to say that post remediation testing was generally not performed
in neighborhoods where OMC was involved in construction? Correct?
MR. POMA: You're asking exactly what regarding post confirmation? We established that it's not in the plan and
that it was not intended to be done[CB70][CB71].
PLAINTIFF’S COUNSEL: Okay. So it didn't happen?

THE COURT: Okay. Slow down. Okay. Answer that question again.
MR. POMA: Well, the plan -- the intent of the plan and the implementation of the plan was to completely eliminate the
direct contact of any potential soil that was preconstruction. All the soil was managed to eliminate that direct contact and
placed into the burial pits and those burial pits are covered.
PLAINTIFF’S COUNSEL: Okay. My question is is it fair to say that post remediation testing was generally not
performed in neighborhoods that OMC worked on? Is that fair?
MR. POMA: There was no post[CB72] -- there has not been post confirmation sampling during that time
during construction.
PLAINTIFF’S COUNSEL: Okay. Or since?
MR. POMA: Uhm, recently I've actually personally performed some. [CB73]
PLAINTIFF’S COUNSEL: You've performed some tests personally?

MR. POMA: For the recent construction, yes.
PLAINTIFF’S COUNSEL: Okay. Within, like, the last month, last --
MR. POMA: Yes, within the last month.
PLAINTIFF’S COUNSEL: Okay. And have those test results been provided to the attorneys?
MR. POMA: No.[CB74]
PLAINTIFF’S COUNSEL: Okay. Where are they?
MR. POMA: They're in the construction records.
PLAINTIFF’S COUNSEL: Okay. And whose construction records?
MR. POMA: OMC's.
PLAINTIFF’S COUNSEL: Okay. So until -- so just to be more clear here, until whatever you did last -- what was the
point of this testing?
MR. POMA: There's current construction going on right now.
PLAINTIFF’S COUNSEL: Okay. So is it fair to say that in these discussions we talked about Exhibits 42 and 43, your
discussions with the state about post remediation testing -- I think your testimony's it began in May of 2016, correct?

MR. POMA: The -- that document is May, yes.
PLAINTIFF’S COUNSEL: Okay. And so -- and what's a certificate --
THE COURT: Okay. I'm a little confused because I think we're talking apples and oranges. We're talking about ongoing
discussions about completed areas in testing and he is saying, We are continuing to test as we do with construction. So
I'm not sure.
THE COURT: What -- what's your next question, Mr. Revere?
Page 36 of 43
PLAINTIFF’S COUNSEL: Okay. My next question is were you asked to assist the attorneys in preparing responses to
interrogatories in the underlying case?
MR. POMA: Uhm, not that I'm aware of, no.
MR. POMA: Not exactly sure what that is, legal term.
PLAINTIFF’S COUNSEL: It's written questions the lawyers write each other for information.
MR. POMA: Maybe again ask your question one more time.
PLAINTIFF’S COUNSEL: Yeah. Interrogatory -- I've got a copy. Your Honor, may approach?
THE COURT: No. You need to tell me where you're going with this because it's already 11:10 and I'm having difficulty
with the relevance of this. So if you can move it along and tell us what's the relevance. Mr. Whattoff, I see you're objecting.
DEFENSE COUNSEL: These aren't on the exhibit

list, Your Honor.
THE COURT: What is the point of this, Mr. Revere?
PLAINTIFF’S COUNSEL: Well, I'll try to lay more
foundation. The last thing to be done in the process
that you've described is to put the new layer of clean
soil on and then the slab and then the building can go
up, correct?
MR. POMA: I'm not following your logic here.
PLAINTIFF’S COUNSEL: Okay. Old homes were
destroyed, correct?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: And then slabs?
MR. POMA: Slabs were built, yes.
THE COURT: Did you get it? I'm sorry. Okay. Do
you want -- okay. Ask your question again.
Comparison of Defendants’ before & after housing redevelopment maps of
PLAINTIFF’S COUNSEL: I'll back up. There's a their Mololani & Ulupau neighborhoods in the MCBH family housing
community. The comparison of these maps shows hundreds of single-family
destruction process for these old homes, correct? homes & duplexes were replaced by triplexes & quadraplexes, preventing
similar alignments of homes.
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. And first of all, the slabs that were put for the new homes don't match where the
slabs were for old homes; is that correct?
MR. POMA: That's possible, yes.
PLAINTIFF’S COUNSEL: Okay. They might shift and they might be in complete different places?

MR. POMA: Different alignments, yes.[CB75]
PLAINTIFF’S COUNSEL: Okay. In any event, the last thing that happened before the new slab is put down is this layer
of clean soil, correct?
MR. POMA: It was not soil that we established.
PLAINTIFF’S COUNSEL: Okay. Well, there's ground up concrete and all that stuff you were talking about.
MR. POMA: Correct.
Page 37 of 43
PLAINTIFF’S COUNSEL: And so where's the layer of new soil? Where is that placed?
MR. POMA: The soil goes around the homes.
PLAINTIFF’S COUNSEL: Okay. And that's this certified clean stuff that we've been talking about?
MR. POMA: It's on site material and top soils in some cases came from off-site.
MR. POMA: Previously established.
PLAINTIFF’S COUNSEL: Okay. But that's the last thing in the process
before the new slab and then you start carpentry work, correct?
MR. POMA: No. Top soil is last.
PLAINTIFF’S COUNSEL: Then the top soil's last, okay. All right. So is it
fair to say that post remediation testing was generally not performed
in the neighborhoods that OMC worked on?
DEFENSE COUNSEL: Objection. Asked and answered.
THE COURT: Yeah, we've already established that.

PLAINTIFF’S COUNSEL: Okay. Your Honor, if I could just have a minute
to go through my notes?
THE COURT: Very well.
PLAINTIFF’S COUNSEL: Thank you. I'm sorry, Your Honor, just a couple
more, if I may. Have you seen a certificate from these trusted outside vendors
that says, "We hereby certify this is clean"?
MR. POMA: I have seen certificates, yes.[CB76]
PLAINTIFF’S COUNSEL: Okay. And those, again, would be in Ohana's

records?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. Do you recall reading any
correspondence from the State of Hawaii in September of 2015 where
the state expressed the concern about improperly managed soil being
left on the ground?
DEFENSE COUNSEL: Objection. I -- this is again a document that's not in
evidence. I don't think it says what Mr. Revere is stating, but I don't know what
he's referring to.
Exhibit 47, letter from HDOH to Defendants
THE COURT: What about it, Mr. Revere? What are you referring to? It's not dated September 15, 2015 asking Defendants to
in evidence, correct. conduct post-construction soil testing in MCBH
family housing & advising testing results are
PLAINTIFF’S COUNSEL: I'm referring to a September 15th, 2015, letter
needed to help facilitate their request for a
from the State of Hawaii to OMC.
federal investigation (ATSDR) into this matter.
THE COURT: Is it in evidence?
PLAINTIFF’S COUNSEL: Oh, no. I'm sorry, Your Honor, I misheard you. It is not in evidence.

THE COURT: Okay. So why are we looking at it now?
Page 38 of 43
PLAINTIFF’S COUNSEL: Well, because when, again, he's saying, "It's clean, it's clean, it's clean," their whole game
plan is saying "The State of Hawaii is on our side." They are not. And when they're saying, "She is a liar because
it's clean because he says so and the State of Hawaii says so, " it ain't true and we have a truth defense.
THE COURT: Well, that doesn't seem relevant to why it's not in evidence.
PLAINTIFF’S COUNSEL: Okay. I'm sorry. Well, Your Honor, may I approach the witness with what we've marked as
Exhibit 47?
THE COURT: I'd like -- I'd like an answer to my question. Why is it -- why isn't it in evidence?
PLAINTIFF’S COUNSEL: I'm going to try to move it into evidence with this witness.
THE COURT: Why haven't you provided it to the other side and the court?
PLAINTIFF’S COUNSEL: Well --
THE COURT: It's from September 2015. I think you had it for a while.
PLAINTIFF’S COUNSEL: Oh, yeah. Well, Your Honor, they're the addressee; they've had it. So, I mean, the letter is to
them.
THE COURT: You have a copy for me and for the witness?
PLAINTIFF’S COUNSEL: I do, Your Honor.
THE COURT: Okay. Give it to Mr. --
DEFENSE COUNSEL: We have seen this document before, Your Honor, but this is not on their exhibit list
and it was not provided in any of their exhibits and we were not informed about this in advance[CB77].
THE COURT: Okay. What's the point of this, Mr. Revere?

PLAINTIFF’S COUNSEL: Well, we have several points, Your Honor. One of the points is -- is that -- well, going to be
telegraphing several passes, if I'm allowed to -- but one of the things since this has been an issue of public
controversy since 2006, at least, the -- they've -- and according to the witness's testimony they're now
getting around to this post so-called remediation testing in May of this year, according to them, and I think
it goes very much they still haven't done it.
And when they're saying she's a liar because they're unwilling or unable to do the testing when they've got
10-year track record of not doing it, it goes to the truth of the matter asserted.
And there's also concerns that the State of Hawaii has and the State of Hawaii wants them to get this stuff
tested, if this letter's accurate. So I think it goes to all of those things, Your Honor.

DEFENSE COUNSEL: Your Honor, Mr. Poma is not an addressee on this document. This is a new exhibit. I
don't see any basis for raising it now or for asking Mr. Poma questions about it.
THE COURT: Well, why are we asking Mr. Poma about this?
PLAINTIFF’S COUNSEL: Well, I'm quite confident that Mr. Poma got a copy of this letter and he is their
point man dealing daily with the Department of Health which is on the letterhead of this letter.
THE COURT: Okay. Well, I will take a moment to read the letter.
THE COURT: And you can read it also.
(Exhibit 47 previously marked for identification.)
THE COURT: Okay. I've read the letter and we've marked it as 47?
PLAINTIFF’S COUNSEL: Yes, Your Honor.
Page 39 of 43
THE COURT: Okay. Go ahead and ask him whatever questions you want to ask him.
PLAINTIFF’S COUNSEL: First of all, Mr. Poma, have you ever seen this letter before?
MR. POMA: No, I don't recall, actually.
PLAINTIFF’S COUNSEL: Okay. You never saw any letter -- any other letters written around this time period
of September of 2015?
DEFENSE COUNSEL: Object --

THE COURT: He's probably seen a hundred letters. You have to be a little more specific.
PLAINTIFF’S COUNSEL: You're right. I'm wrong. Have you seen any other letters written by the State of
Hawaii around September 15th, 2015, regarding pesticide-impacted soils at Marine Corps Base Hawaii?
MR. POMA: No. I'm not -- can't recall anything at that time period[CB78].
PLAINTIFF’S COUNSEL: So you don't recall -- do you recall learning of what's expressed in this letter about the state
wanting testing as set forth on page 2?
MR. POMA: Yes.
PLAINTIFF’S COUNSEL: Okay. And the -- and the second paragraph -- do you know a Harold Lao, by the way, L-a-o?
MR. POMA: Not particularly, no.
PLAINTIFF’S COUNSEL: Okay. The -- in the second paragraph there's a -- in the middle of the second paragraph on
the right-hand side there's a sentence that begins with "However." Do you see that?
MR. POMA: On the back?
PLAINTIFF’S COUNSEL: Second paragraph, first -- excuse me --
second paragraph first page?
MR. POMA: Oh, first page.
PLAINTIFF’S COUNSEL: Middle of the paragraph there's a sentence
that begins with "However"?

MR. POMA: Okay. Yes.
DEFENSE COUNSEL: Your Honor, we object. I understand this has been marked as an exhibit, but it's not in evidence
and we object to it given that Mr. Poma isn't the recipient of this, he didn't review it, and it's not even on their exhibit list.
THE COURT: So how do you plan on getting it in, Mr. Revere?
PLAINTIFF’S COUNSEL: Well -- well, Your Honor, just a couple things. No. 1 is I haven't offered it yet. I'm just asking
about it, No. 1.
No. 2, they have been allowed to testify about test results that they haven't produced, that are nowhere, that
haven't even been offered for you or I or anyone else to even look at, and he stated that he was aware of
what the state's concerns are that are expressed in this letter. So at this point I'm just asking him to read
something. I'm not offering into evidence at this point.
THE COURT: Okay. He's going to read it to himself.
THE COURT: And then you can ask him a question about it.
PLAINTIFF’S COUNSEL: Okay. And just again, Mr. Poma, the question I'm asking you to read to yourself begins on
"However" on the first page of what's been marked for identification as Exhibit 47.
Page 40 of 43
MR. POMA: Uh-huh. Okay.
PLAINTIFF’S COUNSEL: Okay. My question to you is is the state- -- is the statement in that sentence accurate?
DEFENSE COUNSEL: Objection, Your Honor. The document isn't in evidence and I -- he's asking him to testify whether
a statement that we're not reading into evidence is accurate or not? I don't understand how this is -- can -- this seems
improper to me, Your Honor.
PLAINTIFF’S COUNSEL: Your Honor, a document doesn't have to be in evidence to ask a witness about it.
THE COURT: You know, you somehow have to ask him a question that will reflect what his answer means.
THE COURT: And at this point that -- you haven't done that.
THE COURT: So you need to rephrase your question so it's possible for him to have a meaningful answer in the record,
because without what the actual question is, I don't know how his answer's going to work.
PLAINTIFF’S COUNSEL: Okay. Well, Mr. Poma, I'll just ask you. Is it true that after completion of
construction, OMC did not conduct sampling of surface soils to verify the effectiveness of the PI soil
management activities?

DEFENSE COUNSEL: Your Honor, this question's
been asked and answered half a dozen times.
THE COURT: I'll allow him to answer it.
MR. POMA: Yes. As previously stated, that's
correct. Excerpt from Plaintiff’s Exhibit 22, HDOH letter to Dr. Chun dated October 1,
2014. Without sufficient data or evidence to determine if hazardous soils
PLAINTIFF’S COUNSEL: Okay. And is it true that throughout Defendants’ MCBH family housing community were effectively
-- is it your belief that in the absence of such sampling managed or remediated, HDOH can neither confirm nor deny Defendants’
data, the actual condition of MCBH housing surfaces is claims that MCBH housing soils are safe. Approximately 1 year later in
unknown? September 2015, HDOH asked Defendants to conduct extensive post-
construction soil testing throughout MCBH family housing, but as of July 2017,
Defendants still have not done this much-needed testing.
MR. POMA: No, I don't agree with that.
PLAINTIFF’S COUNSEL: Okay. And you understand -- and I'm not saying that you have to agree or disagree with
whatever the state says – but you understand that's the state's position and that's why they want this sampling
testing done, correct?
DEFENSE COUNSEL: Your Honor, now he's trying to put this letter into evidence that is not in evidence.
PLAINTIFF’S COUNSEL: No, I'm still not offering it.
DEFENSE COUNSEL: He's telling him what's in the letter and trying to use it, Your Honor.
PLAINTIFF’S COUNSEL: Your Honor, I can put the letter down. I'm just asking him a question.
THE COURT: Ask it -- ask it in a way that --
PLAINTIFF’S COUNSEL: I apologize, Madame Reporter, for hitting the mic. And I'm sorry, Your Honor?
THE COURT: Ask him the question so that it has sufficient context that it makes sense.
PLAINTIFF’S COUNSEL: Okay. Is -- do you believe it's fair to say that in the absence of post construction
testing, the actual condition of the soils at Marine Corps Base Hawaii in neighborhoods that OMC worked on
is unknown?
MR. POMA: I don't agree, no.[CB79]
PLAINTIFF’S COUNSEL: Okay. Do you understand that that is the state's position?
Page 41 of 43
MR. POMA: Well, I think, if I can say, it continues to say they cannot confirm nor dismiss[CB80], so I don't
think -- and the reason why I don't agree with that statement is because of the actions that were taken, and that is based
on actual sampling data that was performed for the phase 2s. And so anything by -- all the soil was eliminated, all direct
contact was eliminated. Soils that were reused on site had -- was tested previously and is clean material that
went back on top.
PLAINTIFF’S COUNSEL: Okay. And you have no personal knowledge to anything that happened before 2009,
for example, correct?
MR. POMA: I reviewed --
DEFENSE COUNSEL: Object. Asked and answered.
PLAINTIFF’S COUNSEL: I didn't ask what you reviewed. I asked you if you
have any personal knowledge what happened at the base before 2009.
MR. POMA: Through records.[CB81]
PLAINTIFF’S COUNSEL: Okay. Well, we'll talk about what personal
knowledge means later, I guess?
THE COURT: Much later.
PLAINTIFF’S COUNSEL: Oh, Your Honor, I meant the lawyers, not the
witness. I didn't want --
THE COURT: How much more time, Mr. Revere?
PLAINTIFF’S COUNSEL: Uhm, very, very little, Your Honor.
THE COURT: How much more time, Mr. Revere?
PLAINTIFF’S COUNSEL: Two minutes.
THE COURT: Okay.
PLAINTIFF’S COUNSEL: Okay. Your Honor, I apologize. Might be good
news for all, but I believe that I forgot my last question.
THE COURT: Very well. Did you wish to redirect, Mr. Whattoff?
DEFENSE COUNSEL: We don't have any redirect, Your Honor.
THE COURT: Okay. Thank you, Mr. Poma. You are excused. Is there
anything else before -- yes?
DEFENSE COUNSEL: Your Honor, I just don't think that we set
Page 95, Evidentiary Hearing Transcript, August 12, 2016 Letter dated September 15, 2015 from HDOH to
Defendants asking them to conduct post-
DEFENSE COUNSEL: Your Honor -- and I'm very hesitant to do this -- there construction soil testing & advising they
was one more document that we wanted to request. It was just a list of Ms. requested a federal investigation (ATSDR) into
Barber's Facebook followers[CB82]. There was some testimony on that. I this matter
apologize for not raising that earlier; it slipped my mind. But we just want to have a list of the individuals so we
could tell whether the same individuals are the folks submitting claims right now.
PLAINTIFF’S COUNSEL: Uhm, I -- we'll do what we can. I can't -- I just don't know how all that works, but I'll do what
I can.
THE COURT: You know, Mr. Revere, technology is not really that much of a mystery. And I think that when you take
the position that it is some kind of unknowable wizardry kind of a thing, it's not helpful. This is something that clearly can
be done and I understand why Mr. Whattoff wants to compare the posts with the list of followers. And what I do think is
important is that we have it within a particular period of time.
And so from the date of the settlement throughout the date when she stopped posting, 'cause she said she has stopped
posting, right?
Page 42 of 43
PLAINTIFF’S COUNSEL: Uhm, I can't recall. I believe that's correct, Your Honor. The only --
THE COURT: Mr. Whattoff, is that my --
DEFENSE COUNSEL: She stopped posting to her blog, but I do -- there may have been some -- well, to
whatever the most recent date of her most
recent Facebook post, I'm fine with that, Your
Honor, whatever that may be.
THE COURT: Okay.
PLAINTIFF’S COUNSEL: And Your Honor, again, I
don't know and I'm just not clear. I assume but don't
know that if someone follows somebody, that it doesn't
say "Following since such and such date," so I imagine
it's just going to be a long list, but I don't know. You
know what I mean?
Page 98, Evidentiary Hearing Transcript, August

12, 2016
Ms. Barber stopped advocating for military families & stopped posting on
THE COURT: Actually, you do or you don't, so --
Facebook in June 2016, as this chart & her Facebook page clearly reflect.
DEFENSE COUNSEL: Okay.
THE COURT: -- so it's knowable.
THE COURT: Okay. I will see you at 9 o'clock, but I have other hearings, so bear that in mind.
DEFENSE COUNSEL: Thank you, Your Honor.
THE COURT: We are in recess.
(Proceedings concluded at 11:25 a.m.)
Page 43 of 43

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Page 4, Evidentiary Hearing Transcript, August 12, 2016

Page 7, Evidentiary Hearing Transcript, August 12, 2016

Page 10, Evidentiary Hearing Transcript, August 12, 2016

Page 12, Evidentiary Hearing Transcript, August 12, 2016

Page 14, Evidentiary Hearing Transcript, August 12, 2016

DEFENSE COUNSEL: Correct, Your Honor.

One of the concerns I have is we're very interested in

PLAINTIFF’S COUNSEL: Yeah, I don't think -- well,

THE COURT: For both?

Page 20, Evidentiary Hearing Transcript, August 12, 2016

Page 22, Evidentiary Hearing Transcript, August 12, 2016

Page 24, Evidentiary Hearing Transcript, August 12, 2016

Page 26, Evidentiary Hearing Transcript, August 12, 2016

DEFENSE COUNSEL: Object. Vague and ambiguous. Hearsay.

MR. POMA: That's correct.

Page 30, Evidentiary Hearing Transcript, August 12, 2016

MR. POMA: Fifty years.

Page 32, Evidentiary Hearing Transcript, August 12, 2016

THE COURT: Mr. Whattoff.

Page 34, Evidentiary Hearing Transcript, August 12, 2016

Page 36, Evidentiary Hearing Transcript, August 12, 2016

Page 38, Evidentiary Hearing Transcript, August 12, 2016

DEFENSE COUNSEL: Objection. Asked and answered, Your Honor.

Page 40, Evidentiary Hearing Transcript, August 12, 2016

THE COURT: Okay. So we've established a foundation.

Page 42, Evidentiary Hearing Transcript, August 12, 2016

Page 44, Evidentiary Hearing Transcript, August 12, 2016

THE COURT: I'm looking at 42. Where are you?

Page 46, Evidentiary Hearing Transcript, August 12, 2016

Page 48, Evidentiary Hearing Transcript, August 12, 2016

PLAINTIFF’S COUNSEL: Oh, page 3.

Page 50, Evidentiary Hearing Transcript, August 12, 2016

Page 52, Evidentiary Hearing Transcript, August 12, 2016

MR. POMA: No.

Page 54, Evidentiary Hearing Transcript, August 12, 2016

PLAINTIFF’S COUNSEL: Okay. Are any of these additional

Page 56, Evidentiary Hearing Transcript, August 12, 2016

PLAINTIFF’S COUNSEL: Okay. Did you think the same thing at

MR. POMA: Correct.

Page 58, Evidentiary Hearing Transcript, August 12, 2016

Page 60, Evidentiary Hearing Transcript, August 12, 2016

Excerpt from pages 110-111 of August 10, 2016

THE COURT: Mr. Revere, are you trying to irritate[CB60] me?

Page 64, Evidentiary Hearing Transcript, August 12, 2016

THE COURT: I'm unclear why this is relevant. Mr. Whattoff?

Page 66, Evidentiary Hearing Transcript, August 12, 2016

MR. POMA: Yes.

Page 68, Evidentiary Hearing Transcript, August 12, 2016

PLAINTIFF’S COUNSEL: Okay.

PLAINTIFF’S COUNSEL: Okay. Well, Your Honor, I'll

PLAINTIFF’S COUNSEL: Well, I'll withdraw it, Your Honor.

Page 74, Evidentiary Hearing Transcript, August 12, 2016

DEFENSE COUNSEL: Object. Vague and ambiguous which soil management

Page 76, Evidentiary Hearing Transcript, August 12, 2016

THE COURT: Okay. And so --

Page 78, Evidentiary Hearing Transcript, August 12, 2016

Page 80, Evidentiary Hearing Transcript, August 12, 2016

PLAINTIFF’S COUNSEL: Okay. So it didn't happen?

PLAINTIFF’S COUNSEL: You've performed some tests personally?

Page 82, Evidentiary Hearing Transcript, August 12, 2016

DEFENSE COUNSEL: These aren't on the exhibit

Page 84, Evidentiary Hearing Transcript, August 12, 2016