Poisoned by the government

For almost two years, there have been lawyer advertisements telling people that if they were at or near Camp Lejeune, North Carolina from the 1950s to the 1980s, they may have the right to bring a lawsuit for injuries resulting from contamination of the water at the base. This article will explore what led up to these ads and the legislation that permits these lawsuits. It will also discuss some of the specific provisions in the Camp Lejeune Justice Act of 2022 [Pub. L. 117-168, § 804, 136 Stat. 1802-1804], signed into law by President Joseph Biden in August 2022.

The contamination

Camp Lejeune was built in a sandy pine forest along the North Carolina coast in the early 1940s, according to the Marine Corps Times. It says the Marine Corps exposed personnel and families to potentially contaminated waterways on the base. In 1984, testing revealed benzene contamination in a drinking well, which led to the closure of that well and to the review and closure of several other wells on base. By 1985, all identified contaminated wells from the well supplier were shut down due to the presence of volatile organic compounds in the network. Three years later, a monitoring report described a 15-foot layer of fuel floating atop the water table. Significant levels of benzene were found in nearby water wells.

Before the wells were shut down, contaminated water was piped to barracks, offices, housing for enlisted families, schools and the base's hospital. Military personnel and families drank it, cooked with it and bathed in it.

The Marine Corps Times recently reported that from 1975 to 1985, those at Camp Lejeune had at least a 20% higher risk for a number of cancers than those stationed elsewhere. A federal study by the Agency for Toxic Substances and Disease Registry, or ATSDR, found military personnel had a higher risk for specific types of leukemia and lymphoma and cancers of the lung, breast, throat, esophagus, and thyroid. Civilians who worked at the base also were at a higher risk for a shorter list of cancers.

The new study compared 211,000 people who were stationed or worked at Camp Lejeune with 224,000 people at California's Camp Pendleton, which is not known to have polluted groundwater. The risks for specific types of cancer, such as thyroid cancer, were higher in the Camp Lejeune population.

The Feres Doctrine prevented actions against the government

Prior to enactment of the Camp Lejeune Justice Act, lawyers tried to sue the government, but to no avail. A little history:

In 1945, the whole country became aware of what sovereign immunity was when a military plane making its way through Manhattan fog swerved to avoid the Chrysler Building and crashed into the 78th floor of the Empire State Building. The resulting loss of lives and property were the impetus for the Federal Tort Claims Act, which was enacted and signed into law by President Harry Truman in 1946. (28 U.S.C.A. §§ 1346(b), 2674.) Until that point, the federal government enjoyed sovereign immunity. That basically means you can't sue the king. But with the passage of the FTCA, sovereign immunity was waived. Persons who suffered torts from the negligence of the government could bring suit for injuries.

Thus, when a young active-duty Lt. Rudolph Feres was killed in a barracks fire due to the negligence of the military, his family sued the government for wrongful death. In the 1950 case of Feres v. United States, 340 U.S. 135, the United States Supreme Court held that the government could not be sued for injuries incident to military service. This is the holding known as the Feres Doctrine. It prevents lawsuits for injuries such as military sexual trauma, or respiratory conditions resulting from burn pits or any other actions directly against the military or the government by present or former members of the military. In short, the Feres Doctrine allows the federal government to exempt itself from the FTCA for torts causing injuries incident to military service.

The courts extended the Feres Doctrine to cover family members as well. In preparation for Operation Desert Storm and the Persian Gulf War, the United States military inoculated its service members and exposed them to toxins and pesticides in anticipation of possible biological and chemical attacks by Iraq. The children of three service members claimed that the military negligently administered and used "investigational" and defective drugs on their service member fathers, causing the children, who were born after the war, serious birth defects.

All three kids suffered from Goldenhar's Syndrome, a rare birth defect producing deformity, including asymmetry of the face and body, a partially developed or lopsided ear, internal fistulas, and, in some cases including these children, esophageal malformations and the absence of an anal opening.

A federal district court dismissed the case under the Feres Doctrine. All three families appealed, arguing that even though the service members were barred from suing for negligence under the Feres Doctrine, the children were not.

The Fourth Circuit Court of Appeals found against the children in Minns v. United States, 155 F.3d 445 (1998). The appeals court analyzed the reasons for the Feres Doctrine: the peculiar and special relationship of the soldier to superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might occur if suits under the FTCA were allowed for negligent orders given or negligent acts committed in the course of military duty. The court concluded that the considerations that prohibit service members' suits against the government also prompt the extension of the Feres Doctrine to prohibit non-service members' suits against the government that are derivative of or ancillary to service members' injuries.

In Monaco v. United States, 66 129 (1981) and Mondelli v. United States, 1983, 711 F.2d 567 (1983), family members of military personnel exposed to toxins also lost their cases under the Feres Doctrine.

A few months after the passage of the Camp Lejeune Justice Act, a case filed prior to the Act reached the United States Supreme Court. Justice Thomas took the unusual step of dissenting to denial of certiorari in the case, involving a Marine who died of leukemia after exposure to the contaminated water at Camp Lejeune. In Clendening v. United States (2022) 143 S.Ct. 11, Justice Thomas wrote: "[T]his Court 'has embarked on a course dedicated to broadening the Feres doctrine to encompass, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military.' [] This expansion has led to further distortion and incoherence in our jurisprudence."

The Camp Lejeune Justice Act of 2022

The Camp Lejeune Justice Act of 2022 has numerous specific provisions. One is that the United States District Court for the Eastern District of North Carolina has exclusive jurisdiction and shall be the exclusive venue. Another, as is usual when suing the government, no punitive damages may be awarded in any action brought under the Act. Also, anyone who brings an action under the Act may not thereafter bring a tort action against the United States for such harm pursuant to any other law. The statute of limitations is two years after the date of the enactment of the Act, or 180 days after an administrative remedy is denied. The federal administrative remedy pursuant to 28 U.S.C.A. § 2675 is required. There are also mandatory offsets for any recovery by the Veterans Administration, Medicare, and Medicaid to ensure that claimants cannot recover the costs of their medical expenses twice.

But the BIG provision under the Act is that the government may not claim immunity under the Federal Torts Claims Act. Thus, the Feres Doctrine does not apply to actions under the Act.

Causation

Proving that a toxic agent caused a disease has been a huge problem for veterans over the decades. It took half a century of litigation for Vietnam vets to obtain a presumption that certain diseases resulted from Agent Orange. More recent vets found the same problem trying to prove conditions resulting from burn pits. The PACT Act of 2022 [Pub. L. 117-168] expands health care and benefits for veterans exposed to both Agent Orange and burn pits as well as other toxins, making it much less challenging to prove causation.

But the Camp Lejeune Justice Act does not have presumptions regarding causation. Thus, individual plaintiffs must hire expensive experts and try to meet the challenge. However, the Act does specifically provide the burden of proof shall be on the party filing the action to show one or more relationships between the water at Camp Lejeune and the harm. To meet the burden of proof, a party shall produce evidence showing that the relationship between exposure to the water at Camp Lejeune and the harm is sufficient to conclude that a causal relationship exists; or sufficient to conclude that a causal relationship is at least as likely as not.

Despite the fact the burden is somewhat lower than it is in typical tort cases where a preponderance of evidence is required, it is nonetheless a difficult one when dealing with toxins. In re Camp Lejeune Water Litigation, 2023 WL 8791671 concerns plaintiffs trying to prove the water at Camp Lejeune caused their conditions. Plaintiffs moved to compel production of a draft Cancer Incidence Study done by ATSDR, the federal agency dealing with toxic substances. The government opposed the motion and a federal magistrate denied it because the research is still undergoing peer review.

Conclusion

Former service members exposed to contaminated water at Marine Corps Base Camp Lejeune over a 35-year period can now, but not much longer, apply for veterans disability benefits. Shortly after the Camp Lejeune Justice Act of 2022 was enacted, the Department of Veterans Affairs said it expected as many as 900,000 veterans would apply and cost more than $2 billion over the next five years. And that amount doesn't include family members and other civilians who suffer as a result of contamination at Camp Lejeune.

However, addressing the Camp Lejeune problem does not put the issue of toxic living conditions for military personnel and their families to rest. There are continuing problems with rampant mold, cockroaches and other squalid conditions. It appears the military does not give priority to the health of its people. A Feb. 12 article in Task & Purpose reports that trash at Fort Liberty in North Carolina [aka Fort Bragg] piled up for months because the base's trash company was fired without a replacement lined up, and soldiers there are angry after a Major General called the moldy barracks a "discipline problem."