US Seeks to Dismiss Remaining Lejeune MDL Claims

In the ongoing litigation saga surrounding Camp Lejeune toxic water contamination, the back and forth continues over whether victims of bad water at Lejeune have the right to seek legal recourse in the courts.  As we have already discussed in previous reports, the same President that signed the 2012 Camp Lejeune law into effect has instructed his US DOJ attorneys representing the United States to fight Lejeune victims. They are fighting to uphold the NC statute of repose, which sets a 10-year limit on tort claims.

Originally, when the repose issue emerged, the NC legislature quickly moved to change the law to make exception for Lejeune claimants.

In October of 2014, the Atlanta Circuit Court of Appeals ruled against Lejeune claimants. In the case (docket 12-15424), the question was whether 42 U.S.C. § 9658 preempts periods of repose such as that found in N.C. Gen. Stat. § 1-52:

The court held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9568, does not preempt North Carolina’s statute of repose. The court also held that North Carolina’s statute of repose applies to plaintiffs’ claims and does not contain an exception for latent diseases.

For an overview of this case ruling, have a look at this article in the Georgia Law Review.

In January of 2015, plaintiffs tried to get court to rehear the case. The Eleventh Circuit declined to rehear arguments from plaintiffs, letting stand a ruling in favor of the existing statute of repose, continuing to block the multi-district litigation. Read details about that decision here.

This year, plaintiffs are trying again.  However, attorneys for the federal government are pressing to dismiss all claims, arguing that:

“newly discovered evidence” proffered by the plaintiffs in an attempt to avoid dismissal on statute of repose grounds is irrelevant because the injuries are still based on conduct that arose more than 10 years before the claims were filed.

What is this “newly discovered evidence” they speak of?  Evidence of cover-ups, deceptive practices and lack of proper communication to potential victims by the government.  Plaintiffs are once again trying to push the courts to take a different view on behalf of claimants.

There are several reasons why the NC statute of repose is outdated and insufficient in its approach to justice in this issue.

  1. Government and base officials knew about the contamination long before they officially informed the public.  Documents indicate that they hid and covered up the problem for years after it was first discovered.
  2. Even after the EPA stepped in, the process of outreach to all potential victims of exposure appears minimal at best.
  3. Many health conditions have emerged from recent CDC studies and research that are likely linked to the known carcinogens in the base water supply. Several of these illnesses may remain dormant or take several years to manifest, much more than 10 years after exposure.

These points were summarized in a brief used recently in the case of CTS v. Waldberger before the US Supreme Court.

Those with a long-latency cancers due to toxic contamination [should] be able to pursue recovery in states with similar periods of repose.

If state statutes are permitted to bar victims of long-latency cancers from pursuing claims against those who caused their suffering, many victims will have no effective legal recourse, regardless of how clearly they were wronged.

The Navy has required that Camp Lejeune test its water systems annually since 1963, but no records exist of any such tests until 1980. Although Camp Lejeune officials received reports of the water contamination as early as 1980, they did not begin closing wells on base until November 1984. For over two decades, the United States failed to notify potential victims of their exposure to contaminated water, suppressed information regarding the extent of the contamination, and refused to provide medical support. It took an act of Congress in 2007 for the military to begin formally notifying all exposed personnel and their families. Had Camp Lejeune officials notified these individuals more promptly, the suffering of countless victims could have been reduced through preventive care, aggressive monitoring, and early treatment.

In our opinion, the statute of repose 10-year limitation is unfortunately a “one size fits all” approach to tort claims that simply doesn’t fit when it comes to circumstances such as those at Camp Lejeune.  CERCLA should preempt this limitation.  Otherwise, offenders and polluters could use deceptive practices to game the system in their favor by taking advantage of repose time limits to the detriment of victims.

Other Details:

  • Location of MDL litigation – US District Court – Northern District of Georgia
  • Chief Judge: Honorable Thomas W. Thrash, Jr.
  • Judge Nominated By: President Clinton

 

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Civilian Exposure

Civilian Exposure is a 501(c)(3) tax-exempt nonprofit organization/public charity working to Build Awareness, Accountability and Assistance for Civilians Exposed to Camp Lejeune Water Contamination and all citizens exposed to any toxic contamination aboard all U.S. military installations. The effort continues to inform civilian employees and others affected by contamination to receive both the guidance and the justice they deserve.

About the Founder
A 20-year veteran of media, marketing, non-profits and entrepreneurship, Gavin P. Smith leads Civilian Exposure, a non-profit assisting civilians and veterans exposed to U.S. military contamination; the Keta Foundation, a collaborative foundation dedicated to mitigating modern slavery through economic improvement projects in Africa; and Gavin Consulting, a network of virtual experts serving global clients; He is also a former member of the CDC/ATSDR Camp Lejeune Community Assistance Panel. Mr. Smith holds a Master of Global Management with distinction (Beta Gamma Sigma) from Thunderbird School of Global Management, an MBA from The College of William & Mary Mason School of Business and a BA in History from Wake Forest University.

10 thoughts on “US Seeks to Dismiss Remaining Lejeune MDL Claims

  • February 11, 2016 at 9:49 pm
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    What about murder. Any one dies as redults of the water what’s the statute of limitations on murder.

    Reply
  • March 26, 2016 at 11:13 pm
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    I need some help to file my claim…i was station there for 2 yrs..75 to 77.

    Reply
  • March 26, 2016 at 11:16 pm
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    there’s a black spot in my lung ..dont want to say much..

    Reply
  • May 2, 2016 at 5:25 pm
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    Hi my name i Clyde Anthony Harris Jr and my farther was stationed at camp lejuene during the contamination and i think all of this is a sad case and the V.A should be held responsible for their action its very disappointing to see people who serve their country get this type of treatment justice need to be served

    Reply
    • May 3, 2016 at 12:09 am
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      We couldn’t agree more. Not just for our military personnel, but for spouses, children and all of the civilian employees at the base. Every single person/citizen that stepped foot on that base during the 30+ years of contamination needs to be accounted for and given justice. So far, our politicians and government agencies have let us down. They continue to give small bits of assistance here and there, dragging out the process and leaving others behind. It’s shameful. – GS

      Reply
  • July 1, 2016 at 6:20 am
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    I am Marine from 1973 when I was there.I have over 40 health problems ,heart lungs kidneys,ect.I tried to get help in early 80s,And was reject in 1985,1992,2011,2013,.I finally got copie of my last ex-sam nothing hardly was filled out!! And dotor wrote I wasnt at Lejeune N,C. And heres ass kicker,I wasnt even in Marines,Called me Mouch,How dare him,Still,fighting and paying for there Mess,I pay a lot for Meds,out of pocket.$259.00 out of My SS of 1150. amonth.Bullshit. Broken Marine Joe Kline

    Reply
    • July 21, 2016 at 4:03 pm
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      First, thank you for your service to our country. You deserve better. If you’ll forward your contact information to [email protected], we’ll try to get someone in touch with you to get you some assistance and pointed finally in the right direction. – GS

      Reply
      • August 13, 2016 at 4:20 pm
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        I DID NOT ASK FOR THIS MESS. I AM A DRAFT ERA VET-HAD NO REAL CHOICE. FOUND OUT CHRISTMAS DAY (2015) 45 YEARS AGO I DRANK CANCER CAUSING H20 FOR THE THREE YEARS I WAS AT LEJEUNE. FILED FOR DISABILITY AND OF COURSE GOT DENIED. EVEN WORKED AT THE VA HOSPITAL FOR 36 YEARS AND NEVER HEARD ABOUT THIS WATER CRAP. HAVE COPD , CHF AND NEVER SMOKED A DAY IN MY LIFE. I KNOW FOR SURE IF I WAS IN FLINT MICHIGAN, I’D BE TAKEN CARE OF. THIS IS THE THANKS I GET FOR SERVING THE GOV’T 42 YEARS.

        Reply
    • August 25, 2016 at 6:44 pm
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      I was also stationed at Camp Lejeune, NC 2 times from 1976 to 1977 and again from 1978 to 1980. Don’t go after the military, go after that doctor that told a lie or made false information about your medical conditions. That Doctor should have answer for ALL information that he entered into paper through a medical review board or sue to get get his medical license pulled so he can’t practice medicine anymore in any state of the United States.

      Reply
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