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Victims of Lejeune toxic water meet skepticism at Supreme Court

Apr. 23, 2014 - 06:00AM   |  
A sign cautions visitors outside a 'pump and treat' facility aboard Camp Lejeune, N.C., the site of one of the worst drinking water contaminations in U.S. history.
A sign cautions visitors outside a 'pump and treat' facility aboard Camp Lejeune, N.C., the site of one of the worst drinking water contaminations in U.S. history. (Allen Breed/Associated Press)
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WASHINGTON — A divided Supreme Court seemed mostly dubious Wednesday that federal claims for environmental damages can be brought after state deadlines have passed, signaling a potential setback for thousands of former Marines and their families exposed decades ago to contaminated water.

The little-noticed case before the court concerned corporate liability for land found to be contaminated decades after the pollution occurred, and several justices sympathized with the landowners’ plight. But they didn’t sound inclined to strike down a state law that foreclosed legal claims.

That could spell trouble not only for the Asheville, N.C., property owners seeking to recover from CTS Corp. but for former Marines who have fought for years to win damages from the Navy for deaths and illnesses caused by toxic drinking water.

“What are they saying — that if you’re deceitful enough to hide your negligence, then you’re going to get rewarded?” Jerry Ensminger, a Marine veteran whose 9-year-old daughter, Janey, died of a rare form of leukemia in 1985, said after the court session.

The case was notable because the Obama administration opposed the residents’ claims, even after President Obama signed a law in 2012 that provided health benefits to Camp Lejeune veterans and family members. The law was named after Janey Ensminger.

North Carolina, home to both conflicts, has a 10-year “statute of repose” that sets an outer deadline for claims to be filed. Unlike a statute of limitations, which usually begins when an injury is recognized, the clock ticks from the date of the final contamination — even if residents remain unaware until decades later.

A provision added in 1986 to federal Superfund legislation was intended to help victims by giving them two years to file claims from the date they discover the cause of their injuries. In CTS Corp. v. Waldburger, the claims came more than two decades after the electronics plant closed down. The water pollution at Camp Lejeune wasn’t noticed for at least 12 years after the last well came on line.

Wednesday’s case came to the Supreme Court from the 4th Circuit Court of Appeals, which sided with 23 landowners seeking damages and remediation because their land was contaminated with toxic chemicals from 1959 to 1985. It wasn’t until 2009 that landowners learned their water could cause liver and kidney damage, heart ailments and cancer.

Similarly, the last wells contaminated with industrial solvents such as trichloroethylene (TCE), benzene and other chemicals at the Marine Corps base came on line in 1985. Under North Carolina law, that means claims should have been filed by 1995. But no one knew of the danger until 1997.

In recent years, health and environmental studies have classified TCE as a human carcinogen and linked it to kidney cancer, non-Hodgkin’s lymphoma, childhood cancers and other defects. Babies exposed during pregnancy have been found to be at greater risk of developing cancers or birth defects later in childhood.

Thirteen Camp Lejeune claims are combined in a case pending before the 11th Circuit federal appeals court in Georgia. The government is opposing those on the same grounds — that the time for claims to be filed has expired. The case was argued in January, but no decision is likely until after the Supreme Court rules in Waldburger.

Several justices expressed ignorance Wednesday about the differences between statutes of repose and the better known statutes of limitations. “I never heard of this distinction,” Justice Antonin Scalia said. “This was new for me,” added Justice Anthony Kennedy.

But they and others — notably Chief Justice John Roberts — indicated the congressional law intended to give victims time to sue may not overcome North Carolina’s statute of repose. Only four states have those statutes.

“The purpose of the statute of repose is not to preserve latent causes of action,” Roberts said. “It’s quite the opposite. It’s to put an end to, in particular, latent causes of action that haven’t been brought.”

John Korzen, director of the Appellate Advocacy Clinic at Wake Forest University School of Law, which brought the original appeal, said that’s not what Congress wanted to do.

“Congress’ purpose was to preserve claims, no matter what the period was,” Korzen said. “Congress was concerned about people not having their day in court.”

At least two justices — Ruth Bader Ginsburg and Elena Kagan — appeared to side with the victims. Ginsburg expressed concern that if the court denies them a course of action, other states may pass statutes similar to North Carolina’s to protect companies from successful claims.

“There was never a time when these plaintiffs had an action that could be brought,” Ginsburg said, because they didn’t discover the contamination until the 10-year statute had run out.

When Brian Murray, the lawyer for CTS Corp., said Congress in 1986 specifically sought to help victims avoid statutes of limitations but not statutes of repose, Kagan said, “That’s a very legally sophisticated Congress you’re asking us to imagine.”

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