Camp Lejeune – Part 4 – The Legislation
The Mass Tort Report on Camp Lejeune from LegalCalls.com 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 4 of 7: The Legislation
First and foremost, the legislation gives us a very clear and well-defined description of our potential plaintiffs.
These are any individual persons, veteran or not, that lived or worked at Camp Lejeune between August 1, 1953 and December 31, 1987, a period of more than 23 years.
The individual must have been exposed to the drinking water at Camp Lejeune for a minimum of 30 days and applies to potential victims that were exposed in utero.
The statute is silent as to whether that 30-day requirement is in the cumulative or consecutive, but due to the age of these cases, I think we would all be best off if we only considered plaintiffs that were exposed to the Camp Lejeune drinking water system for 30 consecutive days.
From the opening text of the section, an attorney’s intake form is already starting to take shape – we have the time frame of exposure and the required temporal exposure.
The statute clearly and expressly grants exclusive jurisdiction to the Eastern District of North Carolina for any suits to be filed under it.
Importantly, this statute is the exclusive remedy for plaintiffs exposed to the contaminated water at Camp Lejeune.
The only wrinkle here is that residents of the Eastern District of North Carolina will file their suits in the Northern Division of the court, while non-residents will file in the Southern Division.
Standard Of Proof
A casual reading also shows the standard of proof needed to prevail at trial, and it’s typical for a civil trial. The plaintiff will need to show a relationship between the exposure and the harm “sufficient to conclude that a causal relationship is at least as likely as not.”
As the VA has published a list of ‘presumed conditions’ for claims arising due to water contamination at Camp Lejeune, this is a great place to start. Any presumption working in our favor is a good thing, and this is no different.
The VA has declared that:
- Adult leukemia
- Plastic anemia and other myelodysplastic syndromes
- Bladder cancer
- Kidney cancer
- Liver cancer
- Multiple myeloma
- Non-Hodgkin’s lymphoma
- and Parkinson’s disease
offer a presumed connection to exposure, as long as the other requirements for a claimant can been shown.
Other conditions may be applicable to the claims process and/or litigation, but it will require a stronger showing of that causal connection.
No Punitive Damages
Any award will be offset against any recovery for health and/or disability benefits granted by the VA, Medicare, or Medicaid.
No punitive damages will be allowed here, which may be disappointing to some.
Before Filing Suit
One trick to the application of this statute is the requirement to present a claim to the Department of the Navy (DON), under 28 USC §1680(a) before filing suit in court.
The DON has a maximum of 6 months to respond, whether to accept or to deny the claim, and if they fail to respond, it is considered a denial.
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.
Finally, the statute of limitations is clear. In addition to circumventing the North Carolina statutes of repose, this section gives plaintiffs 2 years from August 10, 2022 to file their claim to the Department of the Navy.
If you file your claim form with the Department of the Navy by August 9, 2024, and it is denied six months later, you can still sue in court, but I wouldn’t recommend cutting it that close.
Legislative Work Around
You may remember that the Feres doctrine was one of the reasons that previous cases were dismissed, and this legislation appears to provide a work around.
That doctrine prevents active-duty soldiers from suing for injuries related to their service. In other words, this statute eliminates coverage from any claim arising out of combatant activities.
Up Next: The Claimants & Criteria
Craig H. Alinder, Vice President