NC Judges Set Ground Rules for Camp Lejeune Bellwether Trials

The judicial panel overseeing Camp Lejeune water contamination lawsuits ruled that victims are not entitled to juries at upcoming bellwether trials.

The judges said Congress did not clearly delineate a right to jury trials when it passed the 2022 law allowing those harmed by the contamination to file damage claims with the Navy and then lawsuits in federal court if those claims were not resolved within six months.

The Camp Lejeune Justice Act, which is part of a broader law called the PACT Act, “does not unequivocally, affirmatively, and unambiguously provide plaintiffs the right to a jury trial in actions seeking relief,” the judges wrote. “Moreover, in the CLJA, Congress did not clearly and unequivocally depart from its usual practice of not permitting a jury trial against the United States. Thus, the court grants the defendant’s motion to strike the jury trial demand in plaintiffs’ master complaint.”

Lori Freshwater, who has a lawsuit pending over the death from leukemia of her mother, who resided for years at Camp Lejeune, said she hopes the cases can now be heard expeditiously because many victims have waited decades for compensation.

“Although I am disappointed, I understand the law has weaknesses and I respect the judges’ ruling,” Freshwater said. “I hope we do not delay with more appeals and instead move forward with what we have for the people who need it the most.”

The MDL Process

Multidistrict Litigation is the ideal process for environmental torts like water contamination. Usually, the claims number is in the thousands. That’s way too many cases for courts to handle on a piecemeal basis. However, these cases are somewhat diverse, as most victims have different experiences. Therefore, the matters usually don’t qualify for class action status. MDL bridges the gap. It consolidates cases for pretrial purposes. In MDL actions, “pretrial” usually includes a few test-the-waters bellwether trials.

First, let’s examine traditional pretrial areas, like procedural motions, discovery, and settlement negotiations.

A single MDL judge, or in this case, a panel of judges, oversees the entire pretrial process. This consolidation ensures judicial efficiency and consistent results. Both these things are very good for victims.

Sometimes, the judge or panel appoints special magistrates to oversee highly technical areas of these claims. Most federal judges do not have much experience with the nature and effects of benzene, ethylene glycol, formaldehyde, methylene chloride, tetrachloroethylene, toluene, xylene, 1,3-butadiene, and other volatile organic compounds. So, it is best to refer these matters to a professional while keeping things in-house.

Special magistrates often oversee discovery, and mediators usually oversee settlement negotiations. During formal mediation, both sides have a legal duty to negotiate in good faith. Neither side can go through the motions or issue “take it or leave it” offers. Instead, all parties must earnestly want to settle the matter and avoid trial. They must be willing to compromise to achieve this goal.

The MDL process usually includes five or six bellwether trials. These trials allow both sides to test their claims and defenses before a live studio audience. The trials are conducted according to the law and procedure in the referring state (e.g. cases from Texas use Texas law, even if the trial occurs in a North Carolina courtroom).

The first Camp Lejeune MDL bellwether trials are scheduled for the spring of 2024. So, both sides should know where they stand when the filing window closes in August, and settlement negotiations begin in earnest. More on that below.

Camp Lejeune Water Contamination

We mentioned VOCs above. Between 1953 and 1987, United States Marine Corps (USMC) personnel and families at the base bathed in and ingested tap water contaminated with harmful chemicals at all concentrations from 240 to 3,400 times current safe levels. An undetermined number of former residents later developed cancer or other ailments, which could be due to the contaminated drinking water. Victims claim that USMC leaders concealed knowledge of the problem and did not act properly to resolve it or notify former residents.

Over the years, chemicals from on-base units using chemicals to clean military equipment and leaks from underground fuel storage tanks contaminated water wells throughout the base.

The smoking gun in the Camp Lejeune water contamination case may be a 1982 letter from a Grainger chemist, Bruce Babson, to the base commander, Marine Major General D. J. Fulham, warning him that the base wells appeared to be poisoned. The base commander ignored the warning and ordered that water from the contaminated wells still be used at the base.

Corroboration comes from the Marine Corps itself. A document dated 1981 described a radioactive dump site near a rifle range at the camp. According to the internal report, the waste was laced with strontium-90, an isotope known to cause leukemia and other cancers.

Beginning in the early 2000s, victims began filing legal actions. But judges dismissed these claims on procedural grounds. The Camp Lejeune Justice Act of 2022 opened the courthouse door to anyone who lived at, worked at, or was “otherwise exposed to” Camp Lejeune for thirty days between 1953 and 1987.

As mentioned, the courthouse door slams shut in August 2024. So, if you or a relative lived at Camp Lejeune and got sick, we implore you to reach out to us now, before it is too late, and you forfeit the right to obtain compensation.

Resolving Camp Lejeune/MDL Claims

Given the number of victims and severity of injuries, the Camp Lejeune water contamination settlement may be tens of billions of dollars. We cannot predict the future, but we have handled many such claims in the past, and we can see where this one is probably heading.

Victims do not receive equal shares of settlement money. Most likely, victims with presumptive illnesses will receive the most money, especially if they field claims before the first bellwether trials begin. The presumptive illnesses are:

  • Adult leukemia,
  • Aplastic anemia and other myelodysplastic syndromes,
  • Bladder cancer,
  • Kidney cancer,
  • Liver cancer,
  • Multiple myeloma,
  • Non-Hodgkin’s lymphoma, and
  • Parkinson’s disease.

Under the CLJA, the Marine Corps is strictly liable for these illnesses. Since these claims are almost impossible to defend, the settlement value is higher, and more money is available.

Technically, any victim who meets the residency requirements can file a claim, regardless of the illness. However, if the victim or survivor has a non-presumptive claim, a Camp Lejeune water contamination lawyer must prove that the victim was exposed to the water and that water substantially caused the illness. Since these claims have additional moving parts, they are not worth as much. That is especially true if the victim came forward late in the process and left it to other victims to do the heavy lifting.

Evidence is the key to maximum compensation in both areas. In strict liability claims, the case must include a rock-solid medical diagnosis that has been confirmed by at least one other doctor. Second-tier claims need specific evidence as well, as mentioned above.

For more information about your legal rights in this area, contact Barnett, Lerner, Karsen, Frankel & Castro, P.A.