Veterans Out of Luck in Tainted Water Lawsuit

(CN) - Military families allegedly exposed to contaminated drinking water in North Carolina are out of luck in their civil suit, the 11th Circuit ruled, relying on Supreme Court precedent.

Erica Bryant is the lead plaintiff in the multidistrict litigation involving families who claim that they developed various health problems from exposure to toxic substances contained in the drinking water at Camp Lejeune, a military base in North Carolina.

The water was primarily contaminated with benzene and vinyl chloride from a nearby off-base dry cleaning firm, and affected Marines living on the base from 1957 to 1987.

An investigative report issued by the Centers for Disease Control and Prevention in February found that Marines stationed at Camp Lejeune had a 10 percent higher risk of dying of cancer compared to Marines at Camp Pendleton.

The report also linked the tainted water to an increased risk of serious birth defects and childhood cancers.

Victims claim that the U.S. Marine Corps knew about the water problems on the base, but did nothing to fix it, or to notify base residents of the health risks.

In 2012, President Barack Obama signed the Janey Ensminger Act, named after the daughter of a Lejeune Marine who died of leukemia at age 9, which provides medical care for veterans and family members who lived on the base for more than one month during the affected 30-year period.

Though North Carolina law contains a 10-year limitation on the accrual of real property claims, a federal judge in Georgia found that the discovery rule articulated in Section 9658 of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA) pre-empts North Carolina's 10-year statute of repose.

While the appeal to the 11th Circuit was pending, the U.S. Supreme Court resolved a different case concerning landowners suing over toxic contamination in North Carolina.

In CTS Corp. v. Waldburger , the justices found that the federal law did not pre-empt North Carolina's statute of repose.

The 11th Circuit accepted this finding Tuesday and also decided that that the statute does not provide an exception for latent diseases.

Though the North Carolina General Assembly had said otherwise in attempting to clarify the statute earlier this year, the U.S. government said that the state assembly lacks the authority to revive civil claims after the 10-year repose period has passed.

"In other words, if the amendment applied retroactively, the claim would be timely; if not, the claim would be untimely," Judge Gerald Tjoflat wrote for the three-judge panel.

Since the original statute unambiguously did not include a latent-disease exception, the assembly did more than "clarify" the existing law,

"Session Law 2014-44 did not adopt the plaintiffs' proposed distinction between latent diseases and other types of claims; instead, it created one for groundwater contamination claims generally, and there is no question that this exception is new," Tjoflat said.

The new statute of repose can "only apply prospectively, lest [it] divest the government of a vested right," the Atlanta-based court concluded.

Last month, the Department of Veterans Affairs issued two regulations related to compensation and medical care for those affected by the contaminated water at Camp Lejeune.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit