Camp Lejeune Toxic Water Lawsuits
The Camp Lejeune Act Allows Lawsuits Against the Federal Government for Toxic Water Exposure
Congress recently passed the Camp Lejeune Act – and President Biden signed it on August 10, 2022 – as part of the PACT Act, allowing lawsuits against the federal government, through the Federal Tort Claims Act, for injury or wrongful death caused by exposure to toxic chemicals in the water at Camp Lejeune. This article discusses:
- What the Camp Lejeune Act is – and is not
- Briefly explains the history of water contamination at Camp Lejeune, including the chemicals are at issue and their metabolites,
- The presumptive medical conditions caused by that toxic exposure,
- VA 2017 legislation and how it is different from the Camp Lejeune Act
- Unique features of FTCA lawsuits
- Our law firm’s experience in both FTCA lawsuits and toxic tort lawsuits
- Our prediction of how the lawsuits will play out procedurally.
Our law firm, and its lawyers, have years of experience in both toxic tort lawsuits and in suing the federal government in Federal Tort Claims Act lawsuits. We were an integral part of the trial team that secured a $230 million verdict against the government in the Sutherland Springs church massacre, drafting the first Complaint to survive motions to dismiss, setting strategy for fact witness discovery and testimony, taking the depositions of major fact witnesses, and cross-examining the parents of the mass shooter at trial – which secured pivotal testimony supporting full liability of the Air Force. We are in a unique position to evaluate both the FTCA issues for suing the government and the toxic chemical exposure aspects of these cases – having two decades in toxic tort lawsuits for asbestos, benzene and other toxic chemical exposure lawsuits.
- What the Camp Lejeune Act is – and is not
The Camp Lejeune Act was signed into law on August 10, 2022 as part of the PACT Act. The Act provides a limited window for lawsuits against the federal government for injury and death due to exposure to toxic chemicals in the water at Camp Lejeune, a navy and marine base in North Carolina. The Act provides a limited waiver of the statute of limitations to bring the suits, and it establishes the sole venue for those lawsuits.
The statute of limitations for any negligence case is normally two years from the date of injury. The statute of limitations in toxic tort claims is typically extended by the discovery rule to two years after the date that the injury is discovered – typically a diagnosis of disease. The Camp Lejeune Act (“The Act”) opens a window for two years after the bill is signed by President Biden, to bring lawsuits based on past exposures and past diagnoses that occurred more than two years ago. This window is significant because the exposures took place between 1957 and 1987, and diagnoses may have occurred more than two years ago.
Injured people, or their estates if they have died, have just two years to file their lawsuits.
The Act fixes venue for any lawsuit in the Eastern District of North Carolina, meaning that is the only place the lawsuits can be brought, no matter where the service member or their family lives, or lived, after the exposure.
The Camp Lejeune Act is not a slush fund or a compensation fund. It does not set up any kind of administrative claim process. It is simply a window the government allowed for lawsuits to be filed. Plaintiffs – injured persons and their families – still have to prove their case and must fight attorneys from the Department of Justice who will be fighting hard to deny them recovery. That is why choosing the right attorney is so important. Anyone who thinks they can simply make a claim and get money is mistaken.
- History of water contamination at Camp Lejeune and the chemicals at issue
Camp Lejeune is a U.S. Marine Corps base that covers about 233 square miles in Onslow County, North Carolina. It was established in the early 1940s and is the site of six major Marine Corps commands and two U.S. Navy commands, including reconnaissance, intelligence, infantry, artillery, and amphibious units.
The Water Systems at Camp Lejeune
There are two water pumping stations at Camp Lejeune, Hadnot Point and Tarawa Terrace. It is alleged by the military that in the early 1980s, the Marine Corps discovered that the drinking-water systems that supplied two areas of housing at Camp Lejeune (Tarawa Terrace and Hadnot Point) were contaminated with volatile organic compounds (VOCs). The major contaminants of concern were identified as the solvents trichloroethylene (TCE) and perchloroethylene (PCE). A major point of contention of the Camp Lejeune lawsuits will be what the military knew, and when they knew it, and what they did about it.
The water systems were supplied by the Tarawa Terrace and Hadnot Point water treatment plants, which served enlisted-family housing, barracks for unmarried service personnel, base administrative offices, schools, and recreational areas. The Hadnot Point water system also served the base hospital and an industrial area and supplied water to housing on the Holcomb Boulevard water system (full-time until 1972 and periodically thereafter).
Bathing and showering are relevant, as well as drinking, because TCE and PCE (and other solvents) can evaporate into the air (volatilize) when present in hot water used for bathing, showering, or washing dishes or clothing and can then be inhaled. All of these routes of exposure affect how the body metabolizes TCE and PCE, how the metabolites are distributed and cleared by the body, and how organ systems respond.
Congress, in the early 2000s mandated that US Navy request that the National Research Council – a private nonprofit group of scientists that advises the government and was formed in 1863 – perform a scientific study into the drinking water contamination at Camp Lejeune. In 2009, the National Academy of Sciences published the results of their study, which can be found here: https://www.nationalacademies.org/our-work/contaminated-drinking-water-at-camp-lejeune
The National Academies report provide the following:
Figure 1 provides a simplified illustration of a water-supply system at Camp Lejeune. Water supply wells collected groundwater and pumped it to a water-treatment plant when the wells were turned on. The wells were “cycled,” meaning that only a few wells pumped water to the treatment plant at any given time. A few wells that supplied water to the Tarawa Terrace and Hadnot Point systems were contaminated by solvents from sources on and off the base. When the contaminated wells were in service, contaminated water was delivered to the water-treatment plant where water from several wells was mixed and processed before being distributed in the pipes that supplied water to the base. Thus, the contamination of the water supplies varied and was dependent on many factors, such as the time of operation of the contaminated wells, the water treatments used, and the rate at which water was supplied to the base. (3)
FIGURE 1 Conceptual model of a Camp Lejeune water system. (1) The drinking water at Camp Lejeune is obtained from groundwater pumped from a freshwater aquifer located approximately 180 feet below the ground. (2) Groundwater is pumped through wells located near the water-treatment plant. (3) In the water-treatment plant, the untreated water is mixed and treated through several processes: removal of minerals to soften the water, filtration through layers of sand and carbon to remove particles, chlorination to protect against microbial contamination, and fluoride addition to help to prevent tooth decay. (4) After the water is treated, it is stored in ground and elevated storage reservoirs. (5) When needed, treated water is pumped from the reservoirs and tanks to facilities such as offices, schools, or houses on the base. Source: GAO. 2007. Defense Health Care: Activities Related to Past Drinking Water Contamination at Marine Corps Base Camp Lejeune. GAO-07-276. Washington, DC: U.S. Government Accountability Office.
The chemical contaminants of the water system at Camp Lejeune
The major contaminants of the Tarawa Terrace and Hadnot Point systems are of a particular form that tends to serve as a continuing source of contamination even after the contaminants are underground. These are called “DNAPLs,” which stands for dense nonaqueous phase liquids. DNAPLs are dense, so they have the potential to sink into the deeper aquifers. Such chemicals get trapped in the soil and dissolve slowly into groundwater. The geology of the area makes it probable that DNAPLs that were spilled on the ground or that were leaked or disposed of in the soil got into the groundwater that supplied some of the wells of the two systems. (4)
The dry-cleaning solvent PCE is the primary contaminant of the Tarawa Terrace water-supply system. Spills and improper disposal of PCE by an off-base dry-cleaner contaminated the groundwater collected by on-base supply wells. Other contaminants detected in water-supply wells were TCE, 1,1- dichloroethylene (DCE), cis-1,2-DCE, trans-1,2-DCE, benzene, toluene, and vinyl chloride. Several of the contaminants (TCE, cis-1,2-DCE, trans-1,2-DCE, and vinyl chloride) may be the result of degradation of PCE in the soil and groundwater. There was some on-base contamination of the Tarawa Terrace supply system as well. (4)
The nature of the hazardous-waste sites in the vicinity of the Hadnot Point supply wells suggests that other contaminants may have been present. For example, tests of samples taken from special monitoring wells installed after the contamination was discovered have detected fuel constituents and metals, compounds that were not routinely analyzed in the water samples taken in the 1980s. (5)
The major contaminants of concern were identified as the solvents trichloroethylene (TCE) and perchloroethylene (PCE). PCE was commonly used as a solvent in dry cleaning and the PCE that contaminated Camp Lejeune water is thought to have come from an off-base dry-cleaning company. From the 1950’s to the 1980’s many dry cleaning companies simply poured their spent chemicals into the ground behind their stores. PCE does not dissolve well, but does travel very well in ground water, often migrating from the back of a store into water aquifers. PCE has been the subject of many Superfund environmental lawsuits. PCE and TCE release benzene when they break down. Both are carcinogenic – capable of causing cancer.
Because the PCE came from an off-base business, the Navy did not itself release the chemical. However, what the Navy knew about the groundwater contamination, what it should have done to test the water in the pumping stations, and what duty it had to the soldiers and their families living on base to test and treat the water, will be a major focus of the litigation.
PCE is not the only chemical at issue. As stated above, Hadnot Point water was not primarily contaminated by PCE like Tarawa Terrace was. Hadnot Point was contaminated by chemicals that were created and/or released from on-base activities and improper chemical disposal.
- The presumptive medical conditions caused by that toxic exposure
The National Academies reviewed the medical conditions caused by toxic exposures to the chemicals present in the water at Camp Lejeune, and they reviewed the then-existent epidemiology and toxicology literature for those chemicals. Because testing toxic chemicals on individual humans is not allowed (or ethical), scientists use two major forms of research to determine the effects of chemical exposures. Epidemiology is the study of large groups of people who have been exposed to chemicals, and comparing their disease incidence to that of large groups of people who are similar to them (by age, race, sex, etc.) but who have not been exposed to the chemicals. By comparing the two groups of people, epidemiologists track the incidence (amount) of disease in the exposed population and compare it to the non-exposed group and determine if there are excess cases of disease and death in the exposed group as compared to the non-exposed group. One thing that can be difficult in epidemiology is the dose of exposure between the studied groups and comparing them to the group of people in a lawsuit. For instance, in chemical exposure cases, many of the studied (exposed) groups are workers in factories that make or use PCE, TCE, or benzene (or the other chemicals found at Camp Lejeune). These workers tend to have higher exposures than non-occupationally exposed groups. The workers also tend to use personal protective equipment and may not be exposed for long periods of time.
Toxicology is the study of chemical exposure to animals, and extrapolating the results of the experiments – the diseases that animals get – to groups of humans exposed to the same chemicals. The animal experiments tend to use large doses of exposure to the chemicals in a short time. Many animals also metabolize chemicals more quickly than humans, typically because they have a shorter life span, so have larger doses of exposure over a short period of time. Animals may have different reactions to the chemicals than humans do. However, many toxicologists will breed animals like rats and mice to have specific reactions to chemicals that are more like humans than the non-specially bred version of the mice and rats do.
Using data from both epidemiology studies and toxicology studies is common in toxic tort litigation. The ability to interpret and extrapolate the results of the studies is often a key component in toxic tort litigation due to the attorneys having to cross-examine defense scientists on those subjects, as well as having to present plaintiff-side epidemiologists and toxicologists for the judge or jury.
The National Academies looked at many epidemiology and toxicology studies on exposure to PCE, TCE, benzene, vinyl chloride, and other chemicals in the water of Camp Lejeune and determined that the following medical conditions were associated with exposure to those chemicals. This does not mean that the National Academies found that the chemicals caused the diseases, which is very different and a higher standard. The medical conditions associated with exposure to the toxic chemicals at Camp Lejeune are the following:
- Bladder cancer
- Breast cancer
- Esophageal cancer
- Female infertility
- Hepatic steatosis
- Kidney cancer
- Lung cancer
- Multiple myeloma
- Myelodysplastic syndromes
- Neurobehavioral effects
- Non-Hodgkin’s lymphoma
- Renal toxicity
- VA 2012 legislation and how it is different from the Camp Lejeune Act
In 2017, the Veterans Administration, acting on orders from Congress by way of the 2012 Camp Lejeune health care law, allowed claims and provided for health care for the same conditions that the National Academies found for an association between the Camp Lejeune water system and injury in humans (those 15 listed above). The VA provides for free health care and a presumptive service connection if a veteran or other qualifying person spent 30 days on base at Camp Lejeune from August 1 2=1953 and December 31, 1987.
This VA presumptive service connection between 30 days of active service on base (and thus presumptive exposure) and the qualifying medical conditions, has led many to believe that the Camp Lejeune Act – the recent law – is a compensation fund with a similar presumed service connection between 30 days exposure and the injury. That is not the case in the Camp Lejeune Act lawsuits. There is no presumption of causation or service connection.
The VA Action of 2012 has no effect at all on the burden of proof in a Camp Lejeune Act lawsuit. In a Camp Lejeune Act lawsuit, the plaintiff will have to prove causation, and the government will very likely challenge any expert testimony on causation in a Daubert motion (claiming that the science behind the testimony is not reliable). The causation standard in the Camp Lejeune Act is listed as “at least as likely as not” which is for all practical matters 50% causation, rather than a “preponderance of the evidence” which is 50.1%. It remains to be seen how this will affect the causation standard as a practical matter because a federal judge is still the gatekeeper for expert testimony in a federal lawsuit, all of which testimony must be scientifically reliable to meet the Daubert standard.
- What the plaintiffs will have to prove and how to prove it
Plaintiffs in a Camp Lejeune case will have to prove that the Navy breached North Carolina negligence law. They will have to establish that the Navy had a duty to they, that the Navy breached that duty, the breach caused their injuries, and that they suffered damages.
Duty is not a simple determination. While the Navy had a duty to operate its water system safely, most of the exposure that took place was from the Tarawa Terrace plant. The toxic chemicals that were distributed by the Tarawa Terrace plant came from off base migrated to the Tarawa Terrace plant. Therefore, Plaintiffs will have to show that the Navy knew or should have known about the exposure (should have tested), and they did not act reasonably. There may also be a claim for negligent undertaking, the doctrine that says that if a party, for pay or gratuitously, undertakes to perform a service for a person, they have to do so in a non-negligent manner. This is likely to be the best way to prove the government’s duty. The government undertook to perform the water treatment exercises for plaintiffs, who typically had no choice where to live if they were stationed on the base. When the government operated a water treatment plant, it very likely should have – under then-prevailing standards – have tested the water prior to distributing it. It also should have treated the water. If it knew there was a dry cleaner operating just off base, and it was known at the time that dry cleaners had a habit of pouring spent PCE into the ground, and it was known that PCE migrated, the government should have tested for PCE in the water it was treating.
Duty and breach typically go hand in hand. If there was a duty, there likely was breach, as shown above. However, this will still have to be proved.
Plaintiffs have to prove causation. This is a multi-faceted element. Not only do Plaintiffs have to prove that the chemicals in the water caused their injuries – called “cause in fact”, they have to prove “proximate cause” which includes foreseeability. Cause in fact in a toxic tort case is broken down into two parts: general causation and specific causation. Plaintiffs have to prove that the chemicals are generally capable of causing the plaintiff’s specific disease, at the dose of exposure that the plaintiff received. This is multi-faceted. It involves utilizing both epidemiology and toxicology to prove that the chemicals are capable of causing the disease in animals, that the animal tests can be extrapolated to humans, and that there is epidemiological evidence that humans are statistically significantly more likely to develop the disease at the dose the plaintiff received the chemical. Dose of exposure will be based on models, because so much time has passed and no one at the time was testing the water – even if the Navy should have been. This involves complex modeling to estimate exposures – something that the National Academies performed. It also involves taking complicated histories from the plaintiffs – something experienced toxic tort lawyers should handle. Dose is used to show that the specific plaintiff fits within the range of dangerous disease-causing exposures found in both the epidemiological studies and toxicology studies.
Plaintiffs then have to show specific causation, that the dose of exposure caused their injury. This is done through medical testimony – through doctors who examine the patient – if they are alive – or through their medical records. These are typically not the doctors that actually treated the patient, though they may be. Again, identifying the doctors who are able and willing to testify on behalf of specific plaintiffs is best done by experienced toxic tort attorneys.
Finally, Plaintiffs have to prove proximate cause, the main element of which is foreseeability. Plaintiffs have to prove not only that damage from these chemicals was foreseen, but that it was foreseen at the time the exposure occurred. This is done by knowing what records to request, where they would be within the military hierarchy, and how to analyze them to show that the military knew. It is very rare that a defendant will have a “smoking gun” document that simply admits fault. A complex history and timeline, particularly when juxtaposed about what the rest of industry knew about the dangers of the chemicals, is helpful. The actual foreseeability standard is whether the danger could have been foreseen (whether it was foreseeable), but some judges require that the danger was not only foreseeable, but the danger was actually foreseen by the particular defendant. While that is not the law, that is a standard that has been imposed in FTCA cases in the past, so as a practical matter, it may be the standard used in the Camp Lejeune cases and should be strived for.
Again, the standards for a Camp Lejeune Act case are totally different than the VA’s presumptive service connection standards. Congress set out the presumptive service connection standard to get service members health care. In a FTCA suit for damages, the standard is much higher and relies on traditional toxic tort law, as discussed above. Any statements from any lawyer or lay person that these cases will be a slam dunk or amount to making a claim against a compensation fund, are totally wrong. These cases will be hard fought and will require attorneys who know what they are doing at the outset.
- Unique features of Federal Tort Claims Act cases
All lawsuits whereby a party sues the federal government damages are regulated by the Federal Tort Claims Act. Federal Tort Claims Act cases are highly regulated by Congress. Attorneys’ fees are capped at 25%, and any attorney seeking his 25% has to prove to the federal judge that they earned their fee. These are not the type of cases for an attorney to sign up a case, hope for another to do the work, and then collect their fee. The federal judge has to approve each individual attorney fee as being reasonable, no matter what the attorney fee agreement says.
While the Camp Lejeune Act states that “Nothing in this subsection shall impair the right of any party to a trial by jury” these are still FTCA cases, the text of which requires trial to a judge without a jury. It is to be determined what effect this will have in a courtroom.
At the outset, it is important to note that all FTCA cases are governed by the strict pleading standards of federal courts, which require very detailed Complaints to be filed that not only provide notice of the claim, but enough facts to support a cause of action and enough knowledge of the law to survive a motion to dismiss. This is a very high standard and federal complaints, particularly in FTCA cases with complex fact patterns (like these cases will be) the Complaint can be 50 to 100 pages long. The Complaint will have to address not only who the plaintiffs are, but how long they were on the base, what kinds of exposures they suffered, how the dose of exposure fits within what is now known about the dose of exposure at Camp Lejeune, how that fits within the available epidemiological and toxicology studies, and will also have to deal with what was known or knowable by the Navy about the foreseeable harms from PCE in the drinking water at the doses to which the plaintiff was exposed.
While the Camp Lejeune Act gives plaintiffs two years to file suit, it may take significant time to develop that knowledge and draft a Complaint that can survive a motion to dismiss. Therefore, plaintiffs should not wait long to choose an attorney and start the process of gathering records, which the attorney can submit to the proper experts to evaluate whether their exposures could have, and likely did, cause their injuries. If lawyers do not have experience with both toxic tort cases and FTCA cases, there will be a very steep learning curve. We are not saying it would be impossible for a firm to catch up – and many of the best lawyers can catch up very quickly – it merely makes the choice of counsel particularly important for the injured person and their family.
- Our experience in both toxic tort and FTCA cases
The lawyers at Law Done Right began our careers on asbestos, silica and benzene cases. We also worked on butadiene and other chemical exposure cases, and we spent years going it. We are familiar with, and worked regularly with, epidemiologists and toxicologists on general causation, and with oncologists (cancer doctors), hematologists (blood disease doctors) and other doctors who specialize in toxic exposure – to translate the dose of exposure into specific causation for the individual plaintiffs. We are also experienced with taking detailed histories of plaintiffs and their decedents. Joseph Schreiber was lead counsel in many of these cases. Erik Knockaert spent many years litigating in federal court and is also a chemical engineer who worked at Exxon Mobil prior to going to law school. This experience is invaluable in toxic exposure lawsuits. Other attorneys may be able to come up to speed, but we are already there.
We also have experience with Federal Tort Claims Act lawsuits. We are part of the team of attorneys in Holcombe v. United States – the Sutherland Springs Church massacre lawsuit against the Air Force. We were an instrumental part of the team of attorneys who played a major role and secured at $230 million verdict for the group. We drafted the first Complaint that survived a motion to dismiss, and we argued at the motion to dismiss hearing, having our Complaint largely adopted by the other plaintiffs as a road map for liability. We took key fact witness deposition and helped set the strategy for the case, including for experts. We took the testimony of the shooter’s parents at deposition and trial, securing findings from the court that no one knew the risk as much as the Air Force, so that the DOJ was wrong to blame the shooter’s parents and third parties for comparative fault. This led to a verdict that the Air Force was jointly-and-severely liable for all damages. We did not act alone, but were an integral part of a larger team, a situation that will likely occur again in Camp Lejeune cases, where there is likely to be team-based discovery and trials.
We also brought a multiple-victim shooting lawsuit from Fort Hood against the Army and tried it to a verdict and handled the appeal.
We currently have a case against the Army for the death of a civilian driver when a convoy of Army vehicles were driving through a small town in Texas and one of the vehicles hit and killed the civilian driver.
It is somewhat unique to have attorneys who have both extensive experience in both toxic tort chemical exposure cases and FTCA cases against the military, and we believe that this experience will serve clients well. We know both how to conduct discovery against the military – the process of demanding and getting documents and testimony from military figures, particularly when the US Attorney is not forthcoming with it. We also know how to set up and prosecute a toxic exposure case. We believe that clients would be served well by utilizing attorneys with extensive experience in both areas of the law that are going to be key in Camp Lejeune Act toxic exposure cases.
The reason that this experience is particularly important in Camp Lejeune Act cases is that plaintiffs have two years to bring the case, and in a FTCA case, the Complaint – the first document the plaintiff files announcing who they are and what charges they bring against the Navy, must be detailed enough, and coherent enough to survive a motion to dismiss. Unlike state court cases in Texas and other cases where simple notice of who the plaintiff is and what causes of action they bring, in federal cases, and particularly FTCA cases, the Complaint must be very detailed. These Original Complaints typically are 50 to 100 pages long and many times are attacked by the US Attorneys who are charged by Congress with defending all FTCA cases. The majority of our Original Complaints are detailed enough that the government has not even filed a motion to dismiss.
- We are not a clearing house where we advertise and sign-up cases and then refer them to other attorneys – we work all of our cases
At Law Done Right, we are not a large clearing-house firm, or one that simply advertises for cases and then passes them off to others. We work all of our cases and speak regularly to all of our clients. Our clients have our cell phones and call or text or email us when there are concerns or just questions. We don’t run large advertising campaigns and are not part of consortiums that do. We want to know our clients and give them and their cases personal attention.
We frequently do work in consortiums of attorneys in consolidated cases – like the AstroWorld music festival tragedy and Sutherland Springs church massacre. Camp Lejeune Act cases are likely to be a consolidated action, but while helping the other attorneys on group issues, we pay close attention at all times to our clients’ needs.
We do co-venture and work with other attorneys on cases, bringing in those with specialized experience, or simply more manpower, if it is appropriate, but do not sign up a case and pass it off to others. If you hire us, you get us, and we are very proud of that.
Camp Lejeune Act cases are going to be hard-fought, highly technical cases. The federal government, while passing the law to allow the cases, did not set up a slush fund to pay out all claims. It simply gave those exposed to contaminated water (or their heirs if they are deceased) a path to sue the government under the FTCA. While Congress and the President allowed the cases, the US Attorneys’ office will defend the cases, and they typically defend FTCA cases vigorously. All of our FTCA cases have gone to trial. These are very unlikely to be cases where there is a mass-settlement and the lawyers who take the cases are going to need to bring and prosecute highly technical toxic chemical exposure cases against the government – with the unique procedural hurdles that FTCA cases bring.
We hope that this article has been informative and welcome talking to anyone – attorney or potential client – who would like to discuss these cases.