Camp Lejeune health claims are mired despite law allowing suits

Tribune Content Agency

As claims and lawsuits pile up against the government related to contaminated drinking water at Camp Lejeune, the number of grievous health outcomes tied to exposure to those toxic chemicals at the Marine Corps base in North Carolina is also rising.

A growing percentage of cases are becoming wrongful death suits rather than damage claims for illnesses as more Marines and their family members who were sickened by the tainted water, often many years after the exposure, lose their lives, according to several people involved in the litigation.

“A lot of these people are elderly and they’re up there in age,” said Mike Partain, a Florida man born at Camp Lejeune in 1968 and diagnosed with breast cancer, an extremely rare disease in men, in 2007. “Is this going to legally just take so long that most of us are dead before anything happens?”

Even though Congress passed a law last August giving Camp Lejeune victims two years to sue for damages in federal court, the process of compensating the thousands of people affected by the contamination is moving at a snail’s pace. Federal officials say more than a million people may have been exposed from 1953 to 1987 when the base’s water was polluted with surface wastes migrating into the groundwater used for wells.

The measure, part of a law providing health care for servicemembers exposed to toxic burn pits while on duty overseas, allows lawsuits to be filed by anyone who lived, worked or was otherwise exposed (including in utero) to toxic substances at Camp Lejeune for at least 30 days before 1987 and later suffered any of 15 different conditions, including miscarriage, female infertility, leukemia, non-Hodgkin lymphoma, Parkinson’s disease and cancer of the bladder, breast, esophagus, kidney or liver.

But the Navy and Marine Corps, which have denied responsibility for causing health problems at the base since the contamination was first discovered in 1982, have taken no action on about 20,000 damage claims filed with the Navy Judge Advocate General after the legislation was signed into law on Aug. 10. Under the law, a lawsuit can only be filed in federal court in North Carolina and only if the Navy JAG has failed to act on a claim after six months.

‘Very disappointing’

Mikal Watts, a Texas lawyer handling more than half the claims filed so far, blames the Navy for a growing logjam in the federal courts in North Carolina.

“They haven’t set up a claims resolution process yet, and that’s very disappointing because Congress’ intent was that they should do so immediately,” Watts said. “The Department of the Navy choosing not to pay any of them is helping nobody. It’s just creating a litigation backlog.”

About 200 lawsuits have been filed by Camp Lejeune victims since the six-month deadline for Navy action on claims filed in August expired in February, and the number grows daily as other claims unanswered by the Navy go into federal court. Two of the earliest cases were filed by Watts: one for Partain seeking compensation for harms caused by his breast cancer and a wrongful death case from a former Marine drill instructor, Jerry Ensminger, whose daughter Janey was conceived at Camp Lejeune in 1975 and died of leukemia in 1985 at the age of 9.

Watts said if the Navy and the Department of Justice would sit with plaintiffs and set guidelines for resolving cases, the process could move forward more quickly.

“The way it ought to happen is the parties get together and they create, in effect, eligibility criteria — amounts that will be paid for different kinds of conditions depending on the science, so-called grids — and then you can start processing these claims in an expedited fashion,” he said. “But right now we have nothing but chaos by inactivity.”

The Navy JAG office responded in an email that it “adjudicates claims in accordance with applicable law.” The process includes a review to determine that the claimant was stationed at Camp Lejeune during the period of contamination and has evidence of harm caused by exposure to it.

“If the Navy determines the evidence substantiates the claim, the Navy, in coordination with the Department of Justice, may offer a settlement,” the statement said. “There is no six-month deadline to resolve claims. If the claim is not yet resolved within six months after being filed, the claimant has the right to either file suit or continue awaiting the Navy’s final adjudication of the claim.”

Advertising surge

Congress isn’t helping matters, Watts said, by raising issues with fees being charged by some law firms for taking on cases for Camp Lejeune victims. There have been reports of lawyers seeking fees that could end up taking more than half of any settlement, when federal tort claims law limits fees to a maximum of 25 percent.

After law firms started flooding cable television and social media last fall with ads soliciting Camp Lejeune victims, Sen. Dan Sullivan, R-Alaska, proposed legislation to limit legal fees to 2% for cases filed in federal court after Aug. 10. The bill was blocked by Democrats, but last month two House Democrats — Veterans’ Affairs ranking member Mark Takano of California and Judiciary ranking member Jerrold Nadler of New York — offered a bill to cap fees at 20% for settlements reached with the Navy within six months and 33.3% for cases resolved in federal court.

Watts said he would support the caps proposed by Takano and Nadler if Congress also mandated payments to Camp Lejeune victims in a timely manner. “But what we’re dealing with is a defendant that has obfuscated for decades, and after being told by Congress to pay these claims has paid none of them, so that’s going to require litigation,” he said.

“While I think the senator from Alaska is having a good time hitting a punching bag, which is the plaintiffs’ trial bar, you don’t want to unintentionally create a scenario where veterans can’t get lawyers to handle their claims,” Watts said.

Partain said the dispute over legal fees is further extending a battle for accountability from the Navy and Marine Corps that began decades ago.

“The thing is it’s detracting from what needs to be done,” he said. “Here we are six-plus months since the bill was passed and to my knowledge not one claim has been settled, not one offer has been made. Why is this taking so long? That’s what the community has been saying too.”

Some estimates have put the minimum settlement expected for victims of Camp Lejeune’s water at $10 million, and the Congressional Budget Office estimated last year that Camp Lejeune claims could cost the government more than $163 billion over 10 years.

Partain said the suffering he has endured since his cancer diagnosis — having part of his chest carved out, side effects such as diabetes, chemotherapy, regular checkups that cause enormous stress and a divorce — is difficult to monetize. But, he said, “I would give every dime of any money that’s owed to me just to be what I thought I was before I had cancer.”

Ensminger, who has been seeking a resolution with the Pentagon since 1997 when he connected his daughter’s death to the water contamination at Camp Lejeune, estimated that at least 40% of the claims are now wrongful death cases like his because so many of the people affected have died.

But that doesn’t mean the government’s liabilities will be reduced, he said.

“Most of the people who passed away have surviving family members — their children, their spouses,” Ensminger said. “Everybody I talk to with catastrophic illness, cancer, I tell all of them they need to have their will established so it doesn’t go straight into probate. Make sure you establish the person you want to take this forward.”