Camp Lejeune – Part 2 – A Brief History of the Camp Lejeune Water Contamination Litigation

October 3, 2022

Camp Lejeune – Part 2 – A Brief History of the Camp Lejeune Water Contamination Litigation

The Mass Tort Report on Camp Lejeune from by Attorney Jeff Keiser

To answer the questions readers of the Mass Tort Report are asking, we have assembled this 7 part “Deep Dive” series into the Camp Lejeune Water Contamination Litigation.

This is Section 2 of 7: A Brief History of the Camp Lejeune Water Contamination Litigation

Water contamination at Camp Lejeune came from THREE primary sources.

First, in 1953, a dry cleaner opened about two miles southeast of base. This dry cleaner dumped its wastewater through an on-site septic system, directly across the street (and uphill) from the base’s well fields.

Second, contamination stemmed from the cleaning of military equipment on base with various degreasers and other cleaning chemicals.

And finally, fuel leaks from a generator tank entered the aquifer. It is unknown which cause affected the water in any proportion, but they are all proven to have added to the contamination.

Camp Lejeune Water Contamination Litigation

The First Lawsuit

The first lawsuit against the U.S. Government, as relating to Camp Lejeune water contamination, was filed in 2007 under the Federal Tort Claims Act. This case was dismissed based on the North Carolina statute of repose (see more below).

In 2009, the first mass tort case was filed, eventually becoming an MDL in the Northern District of Georgia.

In December 2016, the MDL court dismissed all plaintiffs’ claims based on the U.S. Supreme Court’s Feres Doctrine, the Discretionary Function Exception, and North Carolina’s statute of repose. The Feres Doctrine was a new one for me.

Based in a 1950 SCOTUS opinion, this case established the principle prohibiting service members from suing under the FTCA for injuries “arising out of sustained incident to military service.”

The Real Issue

But the real issue to litigation for harm caused by exposure to drinking water at Camp Lejeune was North Carolina’s statute of repose.

This statute prohibited any kind of tort lawsuit from being filed more than 10-years after the claim arises, no matter when it was discovered.

In essence, 10 years after the act or omission causing the harm, the door to the judicial system was closed, no matter the merits of the case.

The very nature of this case, where diagnosis is almost always more than 10 years after exposure made the courts simply unavailable, even if the plaintiff had a rock-solid case.

Despite the unfair nature of this situation, the plaintiffs were simply out of luck.

What Changed?

So, what has changed to bring these dead cases back to life?

After lengthy discussion and several political boondoggles, congress passed, and President Biden signed the Honoring our PACT Act in August of 2022.

While the primary purpose of this litigation was to cover military veterans care for exposures to toxic burn pits stemming from the Iraq and Afghanistan wars, Section 804 of the law creates a federal cause of action relating to water contamination at Camp Lejeune.

The PACT Act

Under the FTCA and the PACT Act, claimants are required to first submit a claim to the Department of the Navy (“DON”) for evaluation.

The speed that the DON acts is typically frustratingly slow, but the statute requires a response within 6-months of filing a claim, and if they do not issue a response, the claimant can consider their claim denied. If or when that happens, they are free to go to federal court to sue for damages.

The new statute of limitations is based on a 2-year model, either two years after August 2022, when the law was passed, or two years (plus six months) after the date the claim was made to the DON.

A claim form has already been published that generally follows the model of the FTCA.

Sum Certain

Much like the claim form for FTCA claims, the ‘sum certain’ requirement must be considered, as it will ultimately serve as the maximum cap of damages to be awarded should the case go to trial.

As such, the best course of action is to always think big and include the maximum amount of damages that you can reasonably consider.

Of course, each plaintiff will have their own damage calculation, and it is up to the individual lawyers to make the best decisions for the case.

Where Are We Today?

In essence, this is where we are today. A number of claims have been submitted to the DON, but at this point in time, they remain confidential and unresolved.

As such, we do not know the quality of, nor the actual number of claims. None have been denied. A review of opinions as to what that means is diverse and scattered.

Some attorneys predict the best claims will be quickly and generously paid by the DON. Others are less certain. As of the date of this writing, the DON has more than 5 months to respond, and that puts us all in a very frustrating position.

Attorneys, myself included, aren’t known for their great patience, but that’s what we will have to deal with in the short term.

New MDL Coming?

Likewise, the chances of a new MDL being formed brings up divergent opinions. Most of the big, nationwide law firms predict that one will be necessary.

I think that this question will turn on the number of claims presented to the DON, and whether plaintiffs are ultimately satisfied with that resolution. If not, it definitely seems like the kind of case that would be ripe for consolidation.

There are a couple factors that point away from those chances, however.

First, the Eastern District of North Carolina, per the statute, is the exclusive jurisdiction that can hear these cases.

Second, no MDL has been centralized in that district, ever. So, there is no judge in the district familiar with MDL proceedings.

Perhaps even more important, local law firms have noted, based on their experience and knowledge of the North Carolina courts, that they do not expect an MDL, instead expecting thousands of individual cases.

Only time will tell. Experts have claimed that up to one million people were exposed to these chemicals and may be part of this case.

Up Next: History of the Contamination & the Science Behind the Claims

Craig H. Alinder, Vice President

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