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There are several reasons why the NC statute of repose is outdated and insufficient in its approach to justice in this issue.
- 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.
- Even after the EPA stepped in, the process of outreach to all potential victims of exposure appears minimal at best.
- 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.
- Location of MDL litigation – US District Court – Northern District of Georgia
- Chief Judge: Honorable Thomas W. Thrash, Jr.
- Judge Nominated By: President Clinton