Camp Lejeune: Only 25% of Clients Accept Elective Option Offers
Camp Lejeune Update by Attorney Jeff Keiser.
December 1, 2023
Now that claims in the Camp Lejeune case are moving along, questions are being asked about what conditions qualify. We’ve all seen the lists.
The federal government has issued a list that presumptively qualifies a plaintiff for compensation, and some law firms have taken the bait to limit the plaintiff pool to those, but new developments may change that assessment. The reality is – while the presumptive conditions may be easier to prove, there are non-presumed conditions that the VA has already attributed to Camp Lejeune water exposure, and these may be the largest awards.
A pending ATSDR (Agency for Toxic Substances and Disease Registry) report should be released in a matter of weeks that is likely to broaden the scope of injuries caused by the drinking water at Camp Lejeune.
Elective Option Divide
But first, the elective option has been out there for a few months, and there is a division amongst plaintiff lawyers whether it is the best option. The vast majority have dismissed this first offer for a number of reasons, primarily because the awards are simply too low, and unless the claimant is in desperate need of funds, patience should win the day.
The statistics we’ve received back up this assessment of the elective option. Sixteen offers have been made, and only four have been accepted, with a total payout of less than $1 million. The others were expressly rejected by the claimant, expired due to time, or are still pending.
It doesn’t look especially good for the elective option, at least in terms of resolving a large percentage of these cases. The decision to accept an elective option offer requires an individualized assessment of the client and their situation.
The accepted offers include a $250,000 payout for a Parkinson’s Disease case, $300,000 for non-Hodgkin’s Lymphoma, and two Leukemia cases settled for $300,000 and $150,000.
The conditions covered by the Elective Option have been split into two tiers, with Tier 1 being kidney cancer, liver cancer, non-Hodgkin’s lymphoma, leukemia, and bladder cancer, and Tier 2 including multiple myeloma, Parkinson’s disease, kidney disease (end-stage renal disease), and systemic sclerosis/systemic scleroderma.
If you have clients that can show exposure and diagnosis of one of these conditions, the elective option may appear attractive because of the speed that payments will be made.
However, the amounts being offered under the elective option are not necessarily attractive, and not everyone qualifies. An external review of claimants conducted by one large marketing company revealed that 46.8% of claimants passed the onset and latency requirements of the elective option, but only 12.6% also had a qualifying injury.
If the client is desperate for funds or terminal, it may remain the best option available. But compensation for this option is limited, and likely far less than if patience can win the day and the case goes through individual settlement discussions or trial.
This is certainly worth discussing with your clients, because for some, it offers immediate relief and to some, that may be the best choice. But for the vast majority of plaintiff attorneys I’ve spoken with, being patient and rejecting the elective option will be better in the long term.
A Recent Example
One prominent firm, Beasley Allen, said in a recent webcast that less than 2% of their clients both qualified and wanted to take the elective option. They commented that the elective option is only the right choice for people in dire financial straits, who have a short time to live, or who have weak cases. They said that all claimants will likely receive more if they wait and don’t use the elective option.
So far, 3 of their clients have been paid via the elective option for a total of $850k.
Slow Turning Wheels
We all know how slow the government moves, but the rate of settlements under the elective option is especially sluggish.
As of November 27, there have only been sixteen cases that the DOJ has accepted under the option. And of those sixteen settlement offers, only four offers have been accepted by the clients. Two have been expressly rejected, six have expired, and eight remain pending.
This could just be a reflection of the slow speed of the DOJ, but it could also be a larger indication that the entire program is flawed.
But what happens if your clients do not have one of the Tier 1 or Tier 2 elective option conditions?
The federal government would have you think that it would be the end of the story, but new studies and a deeper analysis of the statute reveal that other conditions may be considered for compensation.
It is still far too early to see how the courts will handle these cases, but the Agency for Toxic Substances and Disease Registry (ATSDR) recently prepared a report including other diseases and conditions that qualify under the Camp Lejeune Justice Act of 2022 (and PACT). Unfortunately, the report has not been released to the public, raising concerns about the transparency and honesty of the entire Camp Lejeune compensation scheme.
According to Kenneth Cantor, a former National Cancer Institute epidemiologist that has seen the report, the list of cancers and other disorders associated with the drinking water at Camp Lejeune should be expanded beyond the Tier 1 and 2 lists. We may need to wait until the report is officially released to get into the specifics, but male breast cancer is just one additional diagnosis that deserves consideration. In addition, miscarriage and female infertility, while covered under the Camp Lejeune Justice Act, are ineligible under the elective option, even though enough evidence links these “cardiac birth defects” to the Camp Lejeune water exposure.
This further illustrates that the elective option should not be considered the standard for Camp Lejeune cases.
The tiered lists include just nine acceptable diagnoses, but even the VA appears uncertain about that limitation. Their own website and analysis of the Camp Lejeune Families Act of 2012 include coverage for 15 conditions, and leave the door open for others. The difference between these two lists has become an issue, according to several prominent plaintiff attorneys.
While the elective option offers a quick payment (if you qualify), these other conditions may also provide for compensation, and like we stated before, compensation following litigation is likely to be far higher.
More To Come
While we wish there was more definitive news, the least we can report is that the elective option list of conditions is not the final list.
Other conditions may be added to the elective option, and even if they are not, there are other options to consider, including litigation. We’ve all jumped through enough hoops on this litigation, but I think the message for now is that there will likely be more diagnoses and conditions that ultimately qualify.
The longer you hold out, the better it will likely be for your clients. If you have rejected clients because they had breast or lung cancer, you may want to reconsider. While these cases may not be quite as simple, they may still have value, and if they do, they may offer even more compensation than any condition named under the elective option.
Craig H. Alinder, Vice President